- One Year Warranty
For a period of one (1) year beginning on the closing date (“Warranty Period”), Traditional Neighborhood Builders, Inc. (“TNB”) warrants to Buyer, and only Buyer, that: a) The Residence will be free from defects in workmanship and materials due to non-compliance with the structural, mechanical, electrical and quality standards of the Summit County home building industry; and b) The Residence will be free from defects in the installation of the plumbing, heating and electrical systems resulting in a non-compliance with the applicable plumbing, mechanical, or electrical code in effect at the time the Residence was constructed; provided, however, that this warranty does not apply to defects in an appliance, fixture, or item of equipment or defects in the plumbing, or electrical systems caused by defects in an appliance, fixture, or item of equipment.
- Foundation Warranty and Expansive Soils Exclusion
TNB warrants that the foundation for the improvements to the property will be constructed according to the recommendations of a licensed engineer as the result of the investigations and tests made on the subject property by a licensed engineer. Buyer acknowledges that the Property contains a shallow, frost protected foundation system (the “Foundation System”) and that the Foundation System and the crawl space must remain heated and above freezing. Except as for the warranty set forth above, Seller and TNB do not warrant against damage or defects caused by or resulting from failure to heat the crawl space, rising or lowering of water tables, expansion or contraction of the soil or other soil conditions; and Seller and TNB shall have no responsibility to Buyer nor to any subsequent purchasers of the Residence under any circumstances for any damage which occurs or may occur as a result of any shifting or movement of slabs or foundation movement of the Residence caused in whole or in part by failure to heat the crawl space, the quality or type of soil, or earth movement, soil or earth subsidence or expansion of any kind or by moisture of any kind, or from failure to maintain proper drainage adjacent to the Residence and elsewhere on the site, or from construction techniques when damage is caused in whole or in part by any of the above described causes or sources, such damage to include but not be limited to property damage, personal injury, loss of income, emotional distress, death, loss of use, loss of value, and adverse health effects, or any other effects. Any implied warranties, including an implied warranty of workmanlike construction, an implied warranty of habitability, or an implied warranty of fitness for a particular use, are hereby waived and disclaimed. Buyers acknowledge that the Seller has offered to provide, upon request, the Soils Report for the site and have had the right and opportunity to have same examined by their own engineers and other experts as they see fit and are satisfied that they understand the importance, meaning and requirements of both the Soils Report and this Expansive Soils Exclusion.
- Mold Excluded
Buyer acknowledges that mold, fungus and related spores are ubiquitous and that because of the nature of many of the materials used in the construction of the Property, there may occur the development or growth of molds, spores or other types of materials and that certain persons may have an allergic or adverse health reaction to these types of molds, spores or other materials. Due to the various materials that are utilized in construction, it is impossible to prevent or preclude the development of certain molds, spores and related matters by which allergic reactions may occur. Wood materials, soil materials and other materials may cause allergic or adverse health reactions or exacerbate existing allergic, adverse health or physical conditions. Further, after construction, the presence of other materials causing allergic or adverse health reactions, allergens, molds, spores, plant materials and other conditions may develop which, because of the nature of construction activity, human occupation, introduction of water or other materials, may cause allergic or adverse health reactions, exacerbation of allergic conditions or pre-existing conditions and similar events or consequences to a person who has allergies, pre-exisiting conditions or has the potential to develop allergic or adverse health reactions. Buyer hereby states and acknowledges that it is aware of such risks and that Buyer is willingly and voluntarily assuming the risk of such allergic or adverse health reactions or changes caused by or exacerbated by living in the Property. Buyer hereby waives, releases and discharges Seller and agrees to indemnify Seller from and against any and all claims arising from, caused by, related to or in any manner commenced with any injury, claim, cause of action, bodily injury, allergic or adverse health reaction, property damages in any manner related to the development or growth of molds, mycotoxin, fungi or any related materials in or at the Property. Any implied warranties, including an implied warranty of workmanlike construction, an implied warranty of habitability, or an implied warranty of fitness for a particular use, are hereby waived and disclaimed.
- Chemical Damage to Concrete Garage Floors, Concrete Pans, Concrete Steps and Concrete Walkways
In general, deicing and anti-icing are accomplished through the use of various chemicals including aqueous solution of various chlorides (e.g. magnesium chloride, sodium chloride, and calcium chloride) or other chemicals such as calcium magnesium acetate (CMA), urea, or others. Although the efficacy of these chemicals for deicing and anti-icing has been clearly demonstrated, possible detrimental effects to concrete pavements, bridge decks, concrete garage floors, concrete pans, concrete steps and/or concrete walkways have not been fully examined and documented. Consequently, Seller and TNB do not warrant against chemical damage to concrete garage floors, concrete pans, concrete steps and/or concrete walkways caused by or resulting from any deicing and anti-icing chemicals. Any implied warranties, including an implied warranty of workmanlike construction, an implied warranty of habitability, or an implied warranty of fitness for a particular use, are hereby waived and disclaimed.
- Consumer Products Excluded
Any appliance, item of equipment, or other item in the Residence, which is a “consumer product” for the purposes of the Magnuson-Moss Warranty Act (15 U.S.C. Para. 2301 through 2312) is hereby excluded from the coverage of the Limited Warranty. The following are examples of “consumer products”, although other items in the Residence may also be consumer products: refrigerator, range/oven, dishwasher, garbage disposal, furnace, hot water heater, clothes washer and dryer, and thermostat.
- Assignments of Manufacturers’ Warranties
TNB hereby assigns to Buyer the manufacturers’ warranties on all appliances, equipment, and “consumer products” installed in the Residence. A copy of each of these warranties will be left in the home prior to occupancy. Buyer should follow the procedure set forth in the applicable warranty if a defect appears in any appliance, item of equipment, or other consumer product.
- Other Exclusions From Coverage
In addition to expansive soils, mold and consumer products, the liability of Seller and TNB under this Limited Warranty shall NOT apply or extend to, the Seller and TNB assume no responsibility for, loss or damage caused by:
- Defects in design, installation, or materials which Buyer supplied, installed, or had installed under his direction.
- Additions, alterations, or modifications to the Residence or real property on which it is located done by or at the direction of Buyer.
- Introduction of excessive water into the soils surrounding the Residence by parties other than Seller or TNB or parties under the control of Seller or TNB.
- Normal wear and tear or normal deterioration.
- Normal shrinkage caused by drying of the Residence and the materials used therein within tolerance generally acceptable under Summit County building standards. This includes but is not limited to wood framing, exterior wood siding and trim, wood floors, paneled wood doors, etc.
- Normal settling of the Residence within tolerances generally acceptable under the Summit County building standards.
- Dampness and condensation caused by the failure to provide sufficient ventilation after occupancy by parties other than TNB or parties under the control of TNB.
- Dampness in crawl space caused by failing to open the foundation vents.
- Water line and/or sewer line freezing due to failure to heat the crawl space and/or failure to maintain the living space at 65 degrees or above.
- Negligent or intentional failure to maintain the Residence by parties other than TNB or parties under the control of the Seller.
- Changes in the grading of the ground around the Residence by parties other than TNB or parties under the control of the TNB.
- Failure to maintain the grades, swales, and drainage patterns established by TNB which assure that any water falling on the property surrounding the Residence, whether from natural precipitation or lawn irrigation, will flow positively away from the Residence.
- Landscaping installed by or at the direction of Buyer.
- Insects or animals.
- Failure to maintain the Residence in good condition and repair.
- Failure of Buyer to take timely action to minimize such loss or damage and/or failure of Buyer to give TNB proper or timely notice of the defect.
- Accidents, natural disasters, or acts of God, including, but not limited to: fire, explosion, smoke, water escape, changes in the water table, wind, hail, extraordinary snow, lightning, falling trees, aircraft and vehicles, flood, and earthquake.
- Soil movement where the resulting loss or damage is compensated for by legislation or covered by insurance.
- Any defect which does not result in actual loss or damage.
- Frozen silcocks.
- Defects which may be constructed as subjective because they relate to natural characteristics of materials such as wood grain, visible knots, inconsistencies in texture, etc.
- Written Notice of Claim
If Buyer discovers a defect which is covered by this Limited Warranty, Buyer must give written notice to TNB at 619 Main Street, PO Box 633, Frisco, CO 80443, such notice providing: The nature of the defect; the date the defect first occurred, the loss or damage claimed and the times during the week that TNB may have access to the Residence to inspect the loss or damage and take corrective action. Such notice must by received by TNB as soon as practicable after Buyer either discovers or, in the exercise of reasonable diligence, would have discovered the defect in the Property or the loss or damage caused by such defect, but in any event not later that 365 days after the Limited Warranty given hereby commences.
- Emergency Repairs
If the defect is covered by this Limited Warranty and constitutes an emergency situation, the Buyer can notify TNB and obtain emergency response information by telephone at 970.668.0717, Ext. 705 Emergency situations are only:
- Total loss of heat;
- Total loss of electricity;
- Total sewer stoppage;
- Plumbing leak that cannot by stopped without shutting off all the water in the Residence;
- Roof leak;
- Total loss of hot water; or
- Inability to securely lock the home.
- Non-emergency Repairs
If the defect is covered by this Limited Warranty and is not an emergency situation, then TNB will schedule repairs within thirty (30) days.
- Online filing of the “Warranty Request Form” SHALL NOT CONSTITUTE WRITTEN NOTICE OF CLAIM or be construed in any way as fulfilling the notice requirements set forth in this paragraph 7.
- Written Notice of Claim
- Repair or Replacement
If, following the inspection of the Residence, TNB determines that a valid warranty claim exists, TNB shall repair or replace, at its option the defective item. TNB shall not be responsible if (i) a repaired area of prefinished material does not match in color and/or texture or (ii) patterns in floor coverings, wall coverings, or other finished surfaces have been discontinued. All work shall be performed by TNB or subcontractors chosen by TNB. TNB will not honor invoices, bills or receipts for labor performed or materials furnished by or at the direction of Buyer.
- Warranty Not Extended
Actions taken by TNB to correct a defect(s) shall not extend the term of this warranty.
- Repair or Replacement
The warranties provided in this Limited Warranty Agreement are personal to Buyer and may not be transferred or assigned by Buyer to subsequent owners of the Residence.
- Expeditious Determination of All Claims and Disagreements
Any disagreement or dispute between the Buyer and Seller or Buyer and TNB pursuant to the Peak One Neighborhood Contract to Buy Real Estate or this Limited Warranty or affecting the Residence or any claim in any way related to the Peak One Neighborhood Contract to Buy Real Estate, the Limited Warranty or occupancy of the Property that cannot be resolved, shall be expeditiously and inexpensively determined by the following method:
One, or more, of the parties may declare that a dispute or claim exists, in which event the matter shall be referred within seven (7) days to the Judicial Arbitrator Group (“JAG”), Denver, Colorado or if JAG is unavailable, to such other impartial arbitrator group as may be selected by the Seller. A single, fair and just arbitrator from such group shall be selected by the Seller.
The arbitration shall be conducted by the arbitrator and by the parties at the JAG offices in Denver, Colorado pursuant to the following method and without participation of attorneys or other legal advisors: Ten days before the arbitration is to begin, each party shall submit to the arbitrator a summary statement of no more than five double-spaced and typewritten pages that shall set forth the following sections: (i) a succinct statement of the nature and extent to the dispute, (ii) a summary of the position of the submitting party, (iii) a summary of the evidence in support of the position of the submitting party, including a list of witnesses and what they would state on the subject, and a list of documents and what pertinence they have to the dispute, and (iv) a request for specific relief sought. No other written submission to the arbitrator shall be permitted before, during or after the arbitration other than as related to procedural matters. For purposes of this section, if the Buyer or an officer of the Seller or TNB is an attorney, he shall be deemed a “party” and allowed to participate.
The arbitration shall consume no more than eight hours, seven hours of which shall be devoted to testimony (to the extent necessary) and the arbitrator shall control the course thereof according to whatever order or pattern he deems fair, but allowing sufficient time for cross-examination of any and all witnesses. No cross examination shall exceed in length the direct examination of the same witness. Within the eight-hour limitation, each party shall be permitted a 15-minute opening statement and 15-minute closing statement. No formal rules of procedure or evidence shall be required, and the arbitrator shall control the proceedings and decorum thereof, including determinations of relevance, as he sees fit for a fair, just and prompt determination of the dispute. Interpretation of the Peak One Neighborhood Contract to Buy Real Estate and this Limited Warranty shall be in the arbitrator’s sole discretion. Each party may present expert testimony as to standards of the Summit County home building industry. Within seven (7) days of the arbitration, the arbitrator shall issue a written decision, which shall be final and binding upon the parties and for which there shall be no appeal permitted to any court or other tribunal. The parties shall then in good faith promptly effectuate the arbitrator’s decision.
This method of final and binding arbitration is in derogation of any other formal or informal method of arbitration that the parties may have heard of that otherwise may have applied by force of law, custom or habit. Moreover, this method of final and binding arbitration is without the participation of attorneys (except the arbitrator or parties that are attorneys) and is understood and agreed by the Buyer, Seller and TNB so as to provide for the relatively inexpensive and prompt resolution of any disputes. The arbitrator shall be paid a single fee of $2,500, one-half of which is to be paid by the Buyer and one-half of which is to be paid by the Seller and/or TNB at the time the dispute is declared or within three (3) days thereof, and this apportionment shall remain in effect regardless of how the arbitrator may determine the dispute. The arbitrator is denied the authority to reapportion the arbitrator’s own fee to award attorney’s fees, costs or expert fees. In the event that the dispute is resolved short of the start of the arbitration hearing, the arbitrator shall refund the fee submitted by each party minus his reasonable fee for time expended to that date. Failure to honor and conform to the dispute resolution mechanism herein shall constitute a material breach of the Peak One Neighborhood Contract to Buy Real Estate and/or this Limited Warranty and shall constitute a waiver of the claim and / or any claim related to it.
If in derogation of this Agreement for mandatory arbitration, a party should file suit in a court of law, the court shall have no authority except as provided by statute relating to the affirmance of arbitration decisions. In the event of any such filing in court, the party filing same shall advance and pay to the other party the anticipated costs of the litigation in a reasonable sum but not less than $10,000.
In any suit, demand, claim or action (of whatever kind) brought by any party to this contract, it is agreed that the following kinds of claims, damages, costs or fees are waived and may not be sought or awarded under any circumstances (against Seller, TNB, their respective managers, members, officers, or employees or Buyer): for negligent site selection, for misrepresentation, for negligent non-disclosure of any fact or circumstance, for expert costs and fees, for attorneys fees, for annoyance, discomfort, inconvenience, and aggravation, for any form of emotional distress or psychological harm or damages, for any form of damages caused by earth movement, or earth subsidence, or earth expansion, for any form of damages caused by surface water flows, for any form of damages caused by underground or ground water flows or moisture, for any damage caused by mold, fungus or by some other agent, for exemplary or punitive damages of any kind or for any purpose (whether pursuant to statute or otherwise), for any and all claims pursuant to the Colorado Consumer Protection Act, CRS 6-1-105 et seq. for damages, treble or otherwise (whether pursuant to statute or otherwise), for damages for implied warranties of any kind or type, or for claims or damages that are within the exclusions, and not covered by, the Seller’s and/or TNB’s policy of insurance in effect at the time that construction begins on the Residence.
If a Court should find any provision or provisions of the Peak One Neighborhood Contract to Buy Real Estate or this Limited Warranty Lease invalid, void or illegal; such finding shall in no way affect, impair or invalidate any other provisions thereof; and the remaining provisions thereof shall nevertheless remain in full force and effect.
UPON CLOSING AND UPON DELIVERY, BUYER AGREES TO ACCEPT THIS WARRANTY IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, HABITABILITY AND WORKMANSHIP, AND THE WARRANTY IS ALSO IN LIEU OF ANY CLAIMS FOR CONSEQUENTIAL DAMAGES, PERSONAL INJURY, MENTAL ANGUISH OR DISTRESS, ANNOYANCE AND INCONVENIENCE, AND FOR DAMAGES BASED UPON NEGLIGENCE, FRAUD OR MISREPRESENTATION, AND THE BUYER HEREBY EXPRESSLY WAIVES AND DISCLAIMS ANY SUCH WARRANTIES AND CLAIMS WITH RESPECT TO THE PROPERTY. THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE CLOSING OF THE CONVEYANCE HEREIN DESCRIBED.
SELLER AND TNB MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY ITEMS INSTALLED IN THE PROPERTY WHICH ARE ORDERED SPECIFICALLY OR SEPARATELY BY THE BUYER. IN NO EVENT WILL SELLER OR TNB BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR ANY ALLEGED BREACH OF SUCH WARRANTY OR THIS AGREEMENT AND BUYER’S REMEDY SHALL BE LIMITED TO THE EXPRESS TERMS CONTAINED WITHIN THE WARRANTY.
BUYER ASSUMES THE RISK OF ANY AND ALL DAMAGE OCCURRING IN OR APPEARING ON THE PROPERTY FROM AND AFTER THE DATE OF CLOSING. BUYER’S ASSUMPTION OF THIS RISK IS PARTIALLY IN CONSIDERATION OF THE AMOUNT OF THE PURCHASE PRICE STATED HEREIN WHICH IS LOWER THAN IT WOULD BE IF SELLER AND TNB WERE TO BE HELD RESPONSIBLE FOR ANY SUCH RISKS BY VIRTUE OF ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES.
DAMAGES, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY CLAIMS, REGULATORY CLAIMS, PURSUANT TO EQUITY OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT EQUAL TO ACTUAL DAMAGES NECESSARY TO COMPENSATE THE INJURED PARTY, AND IN NO EVENT GREATER THAN THAT WHICH WOULD BE AWARDED UNDER THE TERMS AND PROVISIONS OF THE LIMITED WARRANTY AND IN NO EVENT SHALL CONSEQUENTIAL, INCIDENTAL, TREBLE DAMAGES (OR DAMAGES BASED UPON ANY OTHER MULTIPLIER), OR PUNITIVE DAMAGES BE RECOVERABLE. BUYER WAIVES, RELEASES, AND COVENANTS NOT TO ASSERT ANY RIGHT OR CLAIM TO CONSEQUENTIAL, INCIDENTAL, TREBLE (OR OTHER MULTIPLIER), OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCE. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL DAMAGES EVER EXCEED THE PRICE PAID BY THE BUYER FOR THE PROPERTY. BUYER EXPRESSLY UNDERSTANDS AND AGREES THAT THE TERMS OF THIS ANTICIPATORY RELEASE AND DAMAGE LIMITATIONS CONTAINED HEREIN ARE THE RESULT OF A KNOWING ALLOCATION OF RISKS BETWEEN THE BUYER AND SELLER AND/OR TNB BASED UPON THE PURCHASE PRICE. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PURCHASE PRICE AND OTHER CONSIDERATION WOULD HAVE BEEN HIGHER OR DIFFERENT WITHOUT THESE DAMAGE LIMITATIONS AND THESE LIMITATIONS ARE A REASONABLE MANNER OF RISK ALLOCATION BETWEEN THE PARTIES. BUYER, SELLER AND TNB INTEND THAT THESE DAMAGE LIMITATIONS WILL OR COULD BE ENFORCED, EVEN IF ANY WARRANTY OR REMEDY FAILS OF ITS ESSENTIAL PURPOSE. BUYER, SELLER AND TNB ACKNOWLEDGE AND AGREE THAT THIS DAMAGE LIMITATION AND ANY RELEASE GIVEN HEREUNDER SHALL HAVE BEEN GIVEN FOR AND IN CONSIDERATION OF A NEGOTIATED ARM’S LENGTH TRANSACTION UPON WHICH EACH OF THE PARTIES HAD A FULL AND COMPLETE OPPORTUNITY TO NEGOTIATE.
BUYER INTENDS THAT THIS LIMITED WARRANTY SHALL BIND ANY PERSON OR ENTITY, INCLUDING BUT NOT LIMITED TO ANY ASSOCIATION WHICH SEEKS THE BENEFIT OF THIS AGREEMENT OR SEEKS TO ENFORCE BUYER’S RIGHTS. THIS PARAGRAPH SURVIVES CLOSING, TERMINATION OR EXPIRATION OF THIS AGREEMENT.
IT IS EXPRESSLY AGREED AND UNDERSTOOD THAT THE TERMS HEREOF SHALL BE DEEMED EXCULPATORY AND SHALL SERVE AS A FULL AND COMPLETE BAR AND RELEASE OF ANY CLAIM AGAINST SELLER AND TNB EXCEPT AS MAY ARISE PURSUANT TO AND LIMITED BY THE TERMS OF THE TNB LIMITED WARRANTY. BUYER, FOR ITSELF, ITS HEIRS, SUCCESSORS, ASSIGNS, AND ANY ASSOCIATIONS TO WHICH BUYER IS A MEMBER, HEREBY AGREES, COVENANTS, AND ACKNOWLEDGES THAT BUYER’S SOLE AND ONLY REMEDIES AGAINST SELLER AND/OR TNB SHALL BE THOSE CONTAINED WITHIN THE TERMS AND PROVISIONS OF THE TNB LIMITED WARRANTY. THIS TERM AND PROVISION OF THIS CONTRACT SHALL BE DEEMED TO BE EXPANSIVE AND SHALL NOT BE DEEMED TO BE READ AS WORDS OF LIMITATION AND SHALL BE DEEMED TO INCLUDE ALL CLAIMS FOR NEGLIGENCE, STATUTORY VIOLATIONS, CLAIMS ARISING UNDER THE COLORADO CONSUMER PROTECTION ACT, THE COLORADO SOILS DISCLOSURE ACT, OR ANY EQUIVALENT CLAIM.