D223149351 08/18/2023 03:50 PM Page: 1 of 4 Fee: $31.00 Submitter: Rattikin Title - Northwest Electronicatty- Recorded by Tarrant County Cterk in Officrat Pubtic Records — an.
MARY LOUISE NICHOLSON ni COUNT Cte 2A ti us f AFT RESTRICTIVE COVENANT AND CONFIRMATION OF DISPUTE RESOLUTION AGREEMENT GOVERNING PROPERTY This Restrictive Covenant and Confirmation of Dispute Resolution Agreement Governing Property (“Confirmation”) is executed this 18 day of August, 2023 by Mark Steven Wilhite and Joyce R Wilhite (collectively “the Original Buyer(s)”) of 821 Topaz Trl. Azle TX 76020 and MEARSTONE PROPERTIES L.P., a Texas limited partnership of 5816 Boat Club Road, Fort Worth, Texas 76179 (hereinafter referred to as “Builder’).
RECITALS WHEREAS, the Original Buyers are the Current Buyer(s) of the following described prgp SS) situated at 821 Topaz Tri. Azle TX 76020 and legally known as: © Lot 22, Block B, STONE EAGLE ADDITION, an Addition to the City of Azje, [arrant\Cdunty, Texas, according to plat filed for record under Clerk's File No. D222146730, Deed Records of Tarrant Cougty;Texa WHEREAS, for valuable consideration, the AN onad opportunity to review and consider the Dispute Resolution f bi SS but not limited to the express limited warranty provided by Builder ARBITRATION: The parties agree that any dispute or claim arising under, or relating to, this d Aeréto, the Property, Improvements, or any dealings between the Buyer and Seller or their representatives, shall firs nitte atfon and, if not settled during mediation, shall thereafter be submitted to binding arbitration as provided ation Adt (9 U.S.C. §§ 4 et seq.) or, if applicable, by similar state statute, and not by or in a court of law. All decisions
ediation, shall thereafter be submitted to binding arbitration as provided ation Adt (9 U.S.C. §§ 4 et seq.) or, if applicable, by similar state statute, and not by or in a court of law. All decisions The arbitrator Has ne’ authority to apportion to the prevailing party any portion of costs and fees. The mediation and, if necessary, the arbitration shattHe conducted pursuant to the procedures set forth in any applicable Third-Party Warranty documents. If there is any conflict between this Contract and the Third-Party Warranty on these procedures, the provisions of this Contract shall control as to the Seller and Buyer dispute or claims. If the mediator and/or arbitrator designated in any applicable warranty documents cannot conduct the mediation or arbitration for any reason, or if no mediator and/or arbitrator is designated, the parties agree to work together in good faith to select a mediator and, if all disputes are not resolved by mediation, an arbitrator. If the parties are unable to agree on the appointment of a mediator and/or arbitrator, then the mediation and arbitration shall be conducted by the American Arbitration Association (“AAA”) in accordance with its applicable rules and procedures provided, however, if there is any conflict between this Contract and such rules or procedures, the provisions of this Contract shall control. If for any reason the AAA is unable or unwilling Restrictive Covenant and Confirmation of Page 1 Dispute Resolution Agreement D223149351 Page 2 of 4 to conduct the mediation or the binding arbitration, or both, either party may petition a court of general jurisdiction in the subject county to appoint a mediator and/or arbitrator, or both. It is agreed that the filing of a petition requesting appointment of a mediator or arbitrator,
n a court of general jurisdiction in the subject county to appoint a mediator and/or arbitrator, or both. It is agreed that the filing of a petition requesting appointment of a mediator or arbitrator, or for a court to resolve a dispute under this provision, shall not constitute a waiver of the right to enforce binding arbitration.
In any arbitration proceeding between the parties the following material terms shall apply: a) The arbitrator shall have no authority to award any remedy or damage not provided by this Contract, Federal law or State law; b) All applicable claims, causes of action, remedies and defenses as available in court shall apply, including temporary and permanent restraining orders; c) The proceeding shall be conducted by a single arbitrator selected by a process designed to ensure the neutrality of the arbitrator; d) Subject to relevance and discovery reasonably calculated to lead to the discovery of admissible evidence, proper objections, confidentiality and other privileges, the parties shall voluntarily produce documents related to the claims and disputes, and the parties shall be entitled to conduct reasonable and necessary discovery as limited by the arbitrator but in no event shall arty be entitled to more than 6 hours of total deposition time, 10 requests for production and disclosures under Tex. Ri . Pro. 194; no interrogatories shall be allowed; e) The arbitrator shall render a written award and, if requested by any party at any time, a reasoned ; award is issued; the written f) No party shall be required to pay any unreasonable costs, expenses or arbitrator’s fees; g) Judgment upon any such award may be entered in any court having jurisdiction, subject so théterms aged iti the Federal Arbitration Act;
to pay any unreasonable costs, expenses or arbitrator’s fees; g) Judgment upon any such award may be entered in any court having jurisdiction, subject so théterms aged iti the Federal Arbitration Act; h) If the proceeding pertains to a construction defect, as that term is defined in ve He s Property Code (§27.001(4)), then the arbitration shall be conducted in the same county as the Property e@ment of i i ; determination that such location is inconvenient; i) Any arbitration shall be private and confidential, and no publication or dis shall be made to any third-party, except for necessary testimonial witnesses}expexts-dndcounsel. The final award of the arbitrator shall not be payable until 60 days after such award, and such award got be so pé confirmed in any court until 90 days after such award. with or without objection by any party and regardless oNheNerms and conditions of the award. If the award requires repairs of construction defects, such repairs are not required to be com @d until 90 days after the award is confirmed but shall be completed within 120 days after the award is finally confirmed..
Buyer and Seller agree that notwithstanding anything to te fa ghts and obligations set forth in this niediatlonr arbitration agreement shall survive a the termination of this Contra (1) that any dispute involving Seller's dire in a court of law; and (2) that Seller onto include its subcontractors, suppliers, and vendors as parties in the his Contract. This Contract requires mandatory arbitration of disputes; if any party commences litigation in violat expenses including attorneys’ fees incu act is being entered into for the benefit of any third-party and/or subsequent owner that s/ Property or dwelling and is therefore subject to this requirement to arbitrate any and all
rneys’ fees incu act is being entered into for the benefit of any third-party and/or subsequent owner that s/ Property or dwelling and is therefore subject to this requirement to arbitrate any and all afce with this Contract and, as part of any sales agreement, agrees to require the subsequent all claims that may arise between Buyer, Seller or subsequent purchaser(s) relating to or arising RY OF TRIAL BY JURY: If it is determined that the arbitration provisions of the alternative dispute resolution in the county where the Property is located without the use of a jury. The right to a trial by jury is hereby expressly waived by Buyer and Seller. The parties also agree that the rights and obligations set forth in this paragraph shall survive the termination of this Contract by either party, default of this Contract by either party, or Closing and delivery of deed.
C. Re-Purchase Option: Pursuant to § 27.0042 of the Texas Property Code, should the Buyer discover, during the first five (5) years after Closing, one or more defects in the construction of the Improvements that exceed in the aggregate one percent (1%) of the fair market value of the Improvements, upon receipt of written notice and an opportunity to inspect the defects, the Seller may elect to repurchase the Improvements and Property. If the Seller elects this option, the Buyer shall be reimbursed the original sales price set forth herein and all closing costs incurred Restrictive Covenant and Confirmation of Page 2 Dispute Resolution Agreement D223149351 Page 3 of 4 by the Buyer, plus reimbursement of the cost of any permanent improvements made by the Buyer to the Improvements and the Property,
rmation of Page 2 Dispute Resolution Agreement D223149351 Page 3 of 4 by the Buyer, plus reimbursement of the cost of any permanent improvements made by the Buyer to the Improvements and the Property, reasonable moving expenses to vacate the Improvements, and reasonable and necessary attorney's fees and inspection costs incurred by the Buyer to discover, identify and present the construction defects to the Seller, and as otherwise set forth in Chapter 27. In return, the Buyer will deliver a Special Warranty Deed conveying the Improvements and Property to the Seller, free and clear of all liens and claims and deliver possession of the Improvements and Property free of any casualty or damage caused by the Buyer, normal wear and tear excepted.
LIMITATION OF CLAIMS & REMEDIES. To the fullest extent permitted by law, neither Seller, its subcontractors, nor its respective affiliates shall be liable to Buyer or its affiliates for any special, indirect, consequential, incidental, punitive or exemplary damages, whether or not foreseeable, arising out of or in connection with this Contract, regardless of whether liability is based on breach of contract, breach of warranty (express, statutory, or implied), tort (including negligence, fraud, and strict liability), or other bases of liability, such excluded damages shall include, fut not be limited to, mental anguish, diminution of value, loss of opportunity, loss of goodwill, loss of use of property or capital, loss of benefit-f the complete or cover, additional interest or any other financing costs or claims of Buyer, or any other form of indirect or speciarda rties farther mutually agree that
other form of indirect or speciarda rties farther mutually agree that fees, from any such claim or cause of action, including but not limited to negliga sfleyé subcontractors. Nothing contained in this paragraph shall be deemed to modify or otherwise affect releases of either pa 4 liabili aims elsewhere herein contained.
of who the issuer of such warranty is and I/we agree Alf edispute resolution procedures contained herein for the Property on or about August 18, 2023 and her: ovenant contained herein to bind any and all subsequent with the conveyance of the Pro The undersigned ag cument shall be filed of record in the appropriate real property records of Tarrant (County), Texag L WITH THE LAND.
Z Mark Steven Wilhite hie LW buf Jdyce R Wilhite Address: 821 Topaz Trl Azle, Texas 76020 Restrictive Covenant and Confirmation of Page 3 Dispute Resolution Agreement D223149351 Page 4 of 4 BUILDER: Mearstone Properties, L.P., a Texas limited partnership BY: MEARSTONE PROPERTIES GP, L.L.C., a Texas limited liability, General Partner “Matthew Wortham, President STATE OF TEXAS COUNTY OF TARRANT This instrument was acknowledged before me on the 18 b 1 Bay of August 2023 Mark Steven Wilhite and Joyce R Wilhite.
Notary Public State of Texas Notary Seal Printed Name of Nota ary een eM a ED Bit KRISTITHOMAS 5 (The she} Notary Public, State of Texas i we A, Comm. Expires 01-26-2024 | CE” Notaryi012480515-8 F eS ee a ee Gos STATE OF TEXAS 2 COUNTY OF TARRANT This instrument was acknowledged befg of August 2023 by Matthew Wortham, President of MEARSTONE atty, General Partner of MEARSTONE PROPERTIES, L.P., a Texas limited ONS Comm, a O OF Oe Not ary
TARRANT This instrument was acknowledged befg of August 2023 by Matthew Wortham, President of MEARSTONE atty, General Partner of MEARSTONE PROPERTIES, L.P., a Texas limited ONS Comm, a O OF Oe Not ary a Se KRISTI ITHOMAS [n/-s54iem } Notary Public, st a 5816 BOAT CLUB ROAD FORT WORTH, TEXAS 76179 Restrictive Covenant and Confirmation of Page 4 Dispute Resolution Agreement