Electronically Recorded = ‘2!rant County Texas Official Public Records 2006 May 16 09:24 AM Fee: $ 36.00 Ffigenma/ Minhoze,) Submitter: LANDATA Suzanne Henderson D206146673 SINT (64 bal [me (2-06 eving described property situated at sProperty”™), and more particularly described as WHEREAS, Owner purchased the Property and WHEREAS, the undersigned acknowl through alternative dispute resolution procedures eedinat i pf the State of Texas to encourage the peaceable resolution of disputes WHEREAS, to the fullest ext under Builder relating to the constructiog ale-taw, Owner desires to release all implicd warrantics given by, through or don the Property (the “Improvements”), including but not limited to, all em thereto between Builder and O or claim arising by virtuc of 5 representative; and (ec) an seq.) or, if applicable, by similar state statute, and not by or in a court of law. All decisions respecting be decided by the arbitrator. The arbitrator shall have the right to award reasonable attomeys’ fees and ediation and arbitration. The mediation and, if necessary, the arbitration shall be conducted pursuant to plicable warranty documents. If there is any conflict between this Agreement and such procedures, the right to enforce Binding arbiwation.
In any arbitration proceeding between the parties: a. AH applicable Federal and State law (including Chapter 27 of the Texas Property Cadc) shall apply; b. All applicable claims, causes of action, remedies and defenses that would be available in court shall apply; c. 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:
ing 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, 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 & 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 shal!
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 shail 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
pute 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 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 APPLIES TO CONSTRUCTION DEFECTS AND ANY DISPUTES OR CLAIMS REGARDING CONSTRUCTION DEFI CONNECTION WITH THE IMPROVEMENTS. OWNER AND BUILDER UNDERSTAND THAT THE RCLA CONTAINS/RE TO EXPEDITE THE RESOLUTION OF CLAIMS. OWNER AND BUILDER ALSO ACKNOWLEDGE AND AGREE THA FOR WARRANTY PERFORMANCE SHALL NOT BE CONSTRUED AS A NOTICE OF CONSTRUCTION DEFECT # 3. OWNER, BY SIGNING THIS AGREEMENT, ACKNOWLEDGES THAT UNDERSTANDS THE PROVISIONS CONTAINED HEREIN.
4. Owner hereby agrees, acknowledges and stipulates that THE ONLY E OWNER RELATING TO THE PROPERTY AND/OR IMPROVEMENTS !S THAT EXPR PROVIDED BY BUILDER (the “Limited Warranty”). OWNER AGREES AN DERSTAND THEY ARE WAIVING ANY CLAIM OR CAUSE OF ACTION UNDER EORY 0} EXPRESSLY REPLACED BY THE TERMS OF THE LIMITED WARBR« SORPORATED BY REFERENCE INTO THIS AGREEMENT. OWNER ACKNOWLEDGES THAT THE TERMS OF, H WARRANTY ARE CLEAR, SPECIFIC AND SUFFICIENTLY DETAILED TO ESTABLISH THE ONLY ST, FRYCTION WHICH BUILDER IS OBLIGATED TO
ORATED BY REFERENCE INTO THIS AGREEMENT. OWNER ACKNOWLEDGES THAT THE TERMS OF, H WARRANTY ARE CLEAR, SPECIFIC AND SUFFICIENTLY DETAILED TO ESTABLISH THE ONLY ST, FRYCTION WHICH BUILDER IS OBLIGATED TO MEET. OWNER ACKNOWLEDGES THAT THEY HAVE REM p VED SUCH WARRANTY, AND OWNER AGREES TO DELIVER A COPY OF THE LIMITED WARRANTY TO ANY. R URCHASER OF THE PROPERTY.
5. n the event that the reasonable cost of r Improvements that are the responsibility of Buildg repair a construction defect or defects in or related to the current fair market value of the Improvements, as determined without reference to the construction defect(s), B wchase the Property in accordance with Section 27.004 of the Texas Property Code. This right of election shall su ‘ontract between Owner and Builder and the delivery of the deed to the Property from Builder to Owner and shall be p er Ssueetssors and assigns.
6. Owner and Builder he products incorporated into the Improve edge and stipulate that al! manufacturer warranties on equipment and consumer bonditioners, heating units, water heaters, refrigerators, ranges, dishwashers and other OF ANY KIND, EXPRESS OR E NCERNING SUCH EQUIPMENT OR CONSUMER PRODUCTS AND EXPRESSLY DISCLAIMS ALL IMPLIED W4 S RCHANTABILITY, FITNESS OF USE FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTIES TO T: EXTENT PERMITTED BY STATE OR FEDERAL LAW casOnable care in assuring that the Property and Improvements are free of harmful molds and other undesirable opganisrps n utilizing modem materials, techniques and designs, any construction project can experience a problem with mold: purities if proper maintenance procedures are not implemented. Such maintenance is a responsibility of
m materials, techniques and designs, any construction project can experience a problem with mold: purities if proper maintenance procedures are not implemented. Such maintenance is a responsibility of Owner. The positive steps to reduce or eliminate the occurrence of mold growth in the home, and thereby minimize any possible advepae at may be Zed by mold. These steps include the following: gfore bringing items into the home, check for signs of mold. Potted plants (roots and soil), furnishings, 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 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. {nspect 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.
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 perso: which the Owner, or the Owner’s family members or invitees may experience as a result of mold, mildew, fungus, spores, chemicals or bi impurities, including, but not limited to, property damage, personal injury, loss of income, emotional distress, death, loss of usg 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 ing “Releasees”) of and from any and all present and future claims, demands, causes of action and damages, of whatever
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 whatever but not limited to, any claim for personal injury, whether resulting from the negligence of a Releasee or otherwise) f way relates to the presence of mold, chemicals or biological impurities at the Property. To the maximum extept?
waives (and is estopped to assert) all claims to the contrary.
subrogation of any such claims, 8. Owner and Builder agree that this Agreement shall be filed of which the Property is located.
9. Owner and Builder further stipulate that this Agreement S.
10. By execution of this Agreement, (1) Owner ac!
contract between Owner and Builder or that any discrepancies or df 11. Owner and Builder agree, ackno’ upon and inure to the benefit of the parti : ir “veopfecylve heirs, executors, officers, directors, shareholders, representatives, successors and assigns.
fOLeCNe od 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 § “tn § COUNTY of Abby § mary HELEN HERNANDEZ Notary Public STATE OF TEXAS Personalized Notary Seat 7 Wy Comm, =p eae STATE OF TEXAS § ©) COUNTY OF § This instrument was acknowledged before me the , 20 by (Owner).
© tary Public, State of Texas Personalized Notary Seal \S THE STATE OF TEXAS COUNTY OF This instrument [ a feed before me on the day of [title] of HMH Lifestyles, 1 L.P. , on behalf of said entity.
Notary Public, State of Texas AFTER RE , RETURN TO: History Maker Homes, LLC 6815 Manhattan Blvd., Suite 400
feed before me on the day of [title] of HMH Lifestyles, 1 L.P. , on behalf of said entity.
Notary Public, State of Texas AFTER RE , RETURN TO: History Maker Homes, LLC 6815 Manhattan Blvd., Suite 400 Fort Worth, TX 76120 RESTRICTIVE COVENANT AND AGREEMENT -- PAGE 4 of 4 €. Should moid 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 ee The Owner understands and agrees that the Builder is not responsible, and hereby disclaims any fability for, any damages {whether “Releasees”) of and from any and all present and future claims, demands, causes of action and damages, of whatev but not limited to, any claim for personal injury, whether resulting from the negligence of a Releasce or otherwise waives (and is estopped to assert) all claims to the contrary.
Owner hereby further releases, on behalf of themselves and on behalf of any insurgi 2 i vith which Owner deals, Hey orthird-party for damages related sement or damages from Builder.
Owner agrees to not assign any of their rights to any insurer or third party. Owner agiee any and all insurers waivers of
r deals, Hey orthird-party for damages related sement or damages from Builder.
Owner agrees to not assign any of their rights to any insurer or third party. Owner agiee any and all insurers waivers of subrogation of any such claims.
8. Owner and Builder agree that this Agreement shalf be filed 0 in the appropriate real property records of the County in which the Property is located.
9. Owner and Builder further stipulate that this Agreement S THE LAND.
10. By execution of this Agreement, (i) Owner ac!
contract between Owner and Builder or that any discrepancies ord ffersnces have Been approved and accepted by Owner and (ii) Owner has accepted the Property and improvements and hereby releases Buide altetdims and liabilities relating to the Property or Improvements tl. Owner and Builder agree, ack upon and inure to the benefit of the parti pective heirs, executors, officers, directors, shareholders, representatives, successors and assigns.
OWNER OWNER Address: DER: HMH Lifestyles, L.P.
a Jodi Jensen Address: 6815 Manhattan Blyd., Suite 400 Fort Worth, TX 76120 RESTRICTIVE COVENANT AND AGREEMENT — PAGE 3 of 4 STATE OF TEXAS § § COUNTY OF § This instrument was acknowledged before me on_ the day of . 20 by (Owner).
Notary Public, State of Texas Personalized Notary Seal STATE OF TEXAS § § COUNTY OF § (Owner).
lotary Public, State of Texas Personalized Notary Seal \S THE STATE OF TEXAS § SH ——_ COUNTY OF (CUA aw This instrument Le sh EHSC/7 édged before me on the Psi day of Alst) ; 20 & ’ by [title] of HMB Lifestytes, L.P. , on behalf of said entity.
pase - {Oo 6 aut Lh. Hisar NOTARY PUBLIC Notary Public, State of Texas State of Texas * “Comm. Exp. 07-08-2007, ¢ History Maker Homes, LLC
y [title] of HMB Lifestytes, L.P. , on behalf of said entity.
pase - {Oo 6 aut Lh. Hisar NOTARY PUBLIC Notary Public, State of Texas State of Texas * “Comm. Exp. 07-08-2007, ¢ History Maker Homes, LLC 6815 Manhattan Blvd., Suite 400 Fort Worth, TX 76120 RESTRICTIVE COVENANT AND AGREEMENT — PAGE 4 of 4