NEW HOME PURCHASE AGREEMENT

    This Purchase Agreement (“Agreement”) is dated ____________ (“Effective Date”) between _____(Seller Information)_____, a limited liability company, hereinafter called “Seller” and ____(Buyer Name)_____ and _____(Co-buyer- if applicable)____, hereinafter called “Buyer”.

    This is an agreement to purchase a new home.  Buyer agrees to buy, and Seller agrees to sell, the Property for the Purchase Price defined in this Agreement, and pursuant to the terms of this Agreement.  The date of this Agreement is the date it is last signed by Buyer or Seller.  

1.	Definitions.  The “Buyer”, “Seller”, “Selling Broker”, “Listing Broker”, “Purchase Price”, “Earnest Money”, and “Options” are shown and defined in Exhibit “A”, attached to this Agreement and incorporated herein by this reference.  The Property being sold is that tract of land identified on Exhibit “A” as the “Lot, Plat Book/Page”, which is a part of the “Project” identified on Exhibit “A”, together with all such improvements as are located thereon (the “Property).  The full legal description of the Property is the same as described on the most recent subdivision plat recorded with the County Recorder of the county in which the Property is located, and is made a part of the county in which the Property is located, and is made a part of this Agreement by reference.  The closing of such purchase and sale is referred to in this Agreement as the “Closing”.

2.	Purchase Price.  The Purchase Price is shown on Exhibit “A” and may be amended by addendum to this Agreement.

3.	Deposits.  Seller acknowledges receipt of the Earnest Money Deposit as shown on Exhibit “A” as a good faith deposit to bind this Agreement.  The Earnest Money deposit shall be deposited by Meridian Title Company upon acceptance of Purchase Agreement by all parties.  The Construction Deposit shall be deposited by Seller upon finalization of Design Center Options.  The Construction Deposit will be fifty percent (50%) of the total cost of structural and Design Center options.  Buyer’s Earnest Money deposit and the Purchase Price of the Property may be increased prior to the Closing, pursuant to the terms of any addenda to this Agreement provided by Seller and signed by Buyer concurrently with or after the date of this Agreement, including without limitation, for optional and upgrade improvements to the Property.  The Earnest Money Deposit, together with any other pre-closing deposits, construction deposits or other payments delivered by Buyer to Seller as required under this Agreement, are collectively referred to in this Agreement as the “Deposits”.  Notwithstanding any provision in this Agreement to the contrary, at any time after the execution of the Agreement up until Closing, Seller may terminate this Agreement by returning the Deposits plus One Hundred ($100.00) Dollars to Buyer as full liquidated damages; and in such event, this Agreement shall be of no further forces and effect, and the parties to this Agreement shall have no further obligations to each other.  In the event that the Buyer terminates this agreement, unless expressly written by contingency, all deposits will be retained by Seller as damages.  

4.	Financing.  (Check ONE Block; block not checked is NOT a part of this Agreement)
@@DRAFT-DS-RG1R1@@ 	No Financing Contingency:  Buyer’s obligation to close is not contingent on any financing within two (2) weeks of the date of this Agreement, Buyer shall submit to Seller verification of the funds required to close this transaction.  If Buyer fails to submit this information, Seller may terminate this Agreement by written notice to Buyer and retain the Earnest Money deposit.  
@@DRAFT-DS-RG1R2@@ 	Limited Financing Contingency:  Within three (3) business days of Buyer’s execution of this Agreement, Buyer shall apply for a mortgage loan with a lender approved by Seller, in an amount described on Exhibit “A”.  Buyer agrees to pursue qualification for and approval of the loan diligently and in good faith, and to deliver a conditional approval letter satisfactory to Seller within ten (10) business days of the date Buyer has executed this Agreement.  Buyer may also apply for a loan with different terms and conditions and close the transaction, provided all other terms and conditions of this Agreement are fulfilled and the new loan does not increase the cost to Seller.  Buyer shall be obligated to close this transaction if Buyer has the ability to obtain a loan as outlined above or any other loan for which Buyer has been approved.  Seller shall have the right to terminate this Agreement in the event Buyer fails to timely apply for this loan or submit the approvals specified in this paragraph.  Should a conditional loan approval not be obtained within ten (10) business days of this Agreement acceptance, Buyer has the right to terminate this Agreement and receive a full refund of the Earnest Money Deposit by giving Seller notice within that ten (10) business day period.  The following additional terms and provisions shall also apply:

A.	Credit Information Authorization.  Buyer authorizes any individual or entity to which Buyer submits a mortgage application to obtain financing to purchase the Property (a “Lender”), or any credit bureau or other investigative agency employed by Lender to investigate any reference, statement, or date, provided to Lender by the Buyer or by any other person or entity, pertaining to Buyer’s credit and financial responsibility.  Buyer will indemnify and hold harmless Seller, Lender and any credit bureau or other investigative agency employed by Lender for any damages or liability arising from an investigation of Buyer’s credit and financial responsibility.  

B.	Credit Release.  Buyer hereby authorizes Lender to disclose to Seller or Seller’s representatives any and all information concerning the status of Buyer’s loan, including, but not limited to, the appraisal, loan application, loan submittal, conditions to loan approval, written loan approval, written denial of loan approval and reasons therefore, status of loan documents, funding conditions and requirements, verification of deposits, credit, income and employment information concerning Buyer, and Buyer agrees to hold Lender, Seller and Seller’s representatives, harmless from any liability arising there from.

C.	Quality of Application.  Buyer agrees that the mortgage application must be fully and timely completed (and updated, if required) in good faith and agrees to execute truthfully and promptly furnish all documents necessary to complete the processing of the mortgage application, including but not limited to verification of employment, income and deposits, as well as furnishing all required financial statements, federal income tax returns and credit references.  Failure to do so may, at Seller’s option, constitute a default under this Agreement and Seller may terminate the Agreement and retain, without further notice or liability to Buyer, Buyer’s Deposits.  BUYER AGREES TO INCUR NO DEBT AFTER SIGNING THIS AGREEMENT THAT MAY JEOPARDIZE THE APPROVAL OF BUYER’S LOAN.  If a corporation, partnership, or other type of organization is purchasing the Property, then Buyer agrees (1) to obtain personal endorsements or guarantees required by Lender and (2) provide to Lender and the title insurer, promptly upon request such certificates, resolutions or other corporate, partnership or other organizational documents as may be required. The commission or omission of any act by Buyer calculated to produce a rejection by a prospective Lender shall constitute an act of default under this Agreement including voluntarily changing Buyer’s employment status or location.  

D.	Terms and Conditions of Loan.  The term and conditions of the loan shall not in any way affect the rights or obligations of the parties under this Agreement.  Buyer acknowledges that Seller makes no representation that the interest rate prevailing at the Closing will be the rate quoted by Lender to the Buyer at the time of loan approval.  Buyer acknowledges that the sale and purchase of the Property is not contingent upon Buyer’s ability to retain the interest rate quoted at the time of loan approval and that Buyer will be required to pay the interest rate charged by Lender at the Closing.  

E.	Buyer’s Loan Default.  Buyer shall be in material default of this Agreement as a result of any of the following:  (1) any failure by Buyer to timely apply for a loan as provided herein;  (2) any voluntary act of Buyer undertaken for the purpose of preventing Lender from approving the loan; (3) any request by Buyer that Lender not approve the loan; (4) a failure by Buyer to furnish all documents and information required by Lender within the time limits specified herein (5) any material misrepresentation or other default resulting in Lender’s disapproval of the loan; and (6) any failure to properly sign all documents and take any and all actions required by Lender to approve or timely fund the loan.  

F.	Appraisal.  The parties agree that if the Property appraises for less than the Purchase Price, Buyer will be required to deposit with Seller an amount equal to the difference between the Purchase Price and appraised value, to be added to and increase the Construction Deposit, within 10 days of the receipt of the appraisal.  The appraisal figure shall not otherwise affect the rights or obligations of the parties under this Agreement in any way.  

5.	Sale of Other Residence.  Except as Buyer and Seller may have expressly agreed to in writing in a separate rider, amendment or addendum to this Agreement, Buyer represents and warrants that this Agreement and the mortgage loan reference herein are not and will not be subject to or contingent upon Buyer’s selling Buyer’s present residence or other property.  Failure to disclose any such contingency to Seller will constitute a default by Buyer and the remedies for default under this Agreement shall apply.

6.	FHA/VA Loans.  In the event Buyer desires to utilize VA or FHA financing, Buyer shall notify Seller, in writing and the following terms shall apply and control over any conflicting terms in this Agreement:

A.	In the event Buyer utilizes VA financing, Buyer shall notify Seller and all Deposits shall be placed in a separate escrow account as required by 38 US Code Section 1806, within ten (10) business days of the date Seller is notified Buyer is utilizing VA financing.

B.	Buyer shall not be obligated to complete the purchase of the Property or to incur any penalty by forfeiture of Earnest Money deposits unless Buyer has been given, in accordance with the applicable HUD, FHA or VA requirements, a written statement by the Federal Housing Commissioner (or Direct Endorsement Lender, Department of Veterans Affairs or the LAPP underwriter as the case may be) setting forth the appraised value of the Property (excluding closing costs) of not less than the amount of the appraised valuation.  The appraised calculation is arrived at to determine the maximum mortgage amount the Department of Housing and Urban Development (if FHA) or the Department of Veterans Affairs (if VA) will insure or guarantee.  HUD, the Department of Veterans Affairs and the Lender do not warrant the value or the condition of the Property.  Buyer should satisfy himself or herself that the Purchase Price and the condition of the Property are acceptable.  

C.	This loan may be processed under FHA Direct Endorsement Underwriting or VA Automatic Underwriting.  In the event such underwriting is utilized, Seller acknowledges that an underwriting fee may be charged to Seller by the Lender, in which Seller agrees to pay the underwriting fee.

7.	Construction.

A.	Condition of Home.  If construction of the home on the Property has not commenced at the time of execution hereof, Seller shall construct the home in substantial compliance with the plans and specifications for the floor plan and elevation described on Exhibit “A”, as they are so amended from time to time by Seller (the “Plans and Specifications”).  In the event the home is, at the time of execution hereof, in the course of construction, or substantially completed, such home shall be accepted by Buyer in a “where is” condition meaning that Buyer agrees to accept the home with all previously selected options and colors, subject only to completion in accordance with the Plans and Specifications.

B.	Variations.  In keeping with its desire to constantly improve its product and/or to meet code requirements, including but not limited to lot size and shape, Seller may make any changes in the Plans and Specifications that it deems appropriate at any time, as long as those changes do not materially or adversely affect the market value of the Property.  In the event of a conflict between Seller’s sales materials, advertisements, feature sheets, renderings or brochures, and the Plans and Specifications; the Plans and Specifications shall be binding.  Buyer further understands and agrees that certain of the finishing items, including but not limited to tile, marble, carpet, cabinets, stone, brickwork, wood, paint, stain, and mica are subject to size and color variations, grain and quality variations, and may vary in accordance with prices, availability and changes by manufacturers from those shown to Buyer in person or in any illustrations or brochures or those included in the Plans and Specifications.  Furthermore, if circumstances arise that, in Seller’s sole opinion, warrant changes of labor, suppliers, manufacturers, brand names or items, Seller reserves the right to substitute equipment, materials, appliances, etc., which in Seller’s sole opinion are considered to be of quality substantially similar or equal, or of better quality, subject to their availability.  Buyer also understands that Seller has the right to substitute or change materials or stain colors utilized in wood décor, if any.  Buyer acknowledges and understands that the Plans and Specifications on file with applicable governmental authorities may not be identical to Seller’s Plans and Specifications because Seller’s construction requirements may result in changes (there being no legal requirement to file all changes with such authorities).  

C.	Models and Plans.  Before signing this Agreement, Buyer has viewed a certain model home and/or certain plans, drawings, or other renderings depicting examples of the type of home being purchased.  The home as built, will be substantially similar to the examples Buyer has viewed, but may differ because of variations in some dimensions or the use of material different from those viewed by the Buyer.  Closing of this transaction contemplated under this Agreement constitutes unconditional acceptance of the home as built without regard to variations or differences between the home and the model home, drawings, renderings or plans viewed as examples by Buyer.  Buyer’s refusal to accept the home as built shall constitute a default by Buyer of this Agreement for which Seller may retain all Deposits.  

D.	Unusual Conditions.  Seller reserves the right to terminate this Agreement and refund all Deposits due to any facts or circumstances which become known to Seller after the Effective Date hereof that would prohibit Seller from construction of the home selected within normal anticipated construction costs, including, without limitation, geological or physical conditions, strikes, building moratoriums, adverse weather conditions, material shortages, building code changes, or impact fees.  

E.	Selections by Buyer.  Selections by Buyer.  Buyer agrees to select and finalize all structural option selections within two (2) business days of the date of this Agreement. Buyer agrees to schedule, within ten (10) business days of this agreement, an appointment to select all remaining option selections with Sellers third party design services provider (Builder Design Center). Selections made must be finalized within twenty-one (21) calendar days of Sellers acceptance of this Agreement. If Buyer fails to complete such selections within specified timelines (if purchasing a home that is not yet under construction) then Seller may at its options (1) choose all colors and options, or (2) cancel the Agreement and retain all Deposits as liquidated damages.  If Buyer is purchasing a home under construction, or previously authorized to start, Buyer understands that all choices and colors have been pre-selected, and Buyer agrees to accept said choices.  Once Buyer’s selections are finalized & Buyer has executed an Addendum to this Agreement, it is the Seller’s exclusive right to allow changes or additions to be made to the home.  Should the Seller grant the Buyer the ability to make a change or an addition after selections have been made the buyer agrees to pay a $500.00 (FIVE HUNDRED DOLLAR) change fee plus any change to material costs.  

F.	Completion Date.  If the home located on the property is not already completed, Seller estimates that all specified construction on the Property should be completed within one hundred eighty (180) days from the date of commencement of construction (basement pour).  Buyer acknowledges and agrees that completion is an estimate and the Seller will not be responsible to Buyer for any expenses resulting from delays in construction of the home, including but not limited to rent, hotels, storage, moving expenses or loss of a tax deduction.  Reasonable efforts will be made to complete the home in a timely manner, however, notwithstanding the above, Seller will complete the home within one (1) year of the date that Buyer executes this Agreement.  If construction is delayed by events constituting acts of God, Force Majeure, frustration of purpose or impossibility of performance, the date of completion shall be extended by the delay period.  It is the express intent of the parties that the parties’ rights and obligations under this Agreement be construed in the manner necessary to exempt this Agreement and sale from registration under the Interstate Land Sales Full Disclosure Act, and both Buyer and Seller hereby expressly waive any right or provision of this Agreement that would otherwise preclude any exemption.  If Buyer is not in default, Buyer’s only remedy will be to terminate this Agreement and receive a full refund of all Deposits previously paid. 

G.	 Lots.  Each lot in the Project is unique in its size, shape and drainage characteristics.  Buyer understands and agrees that the size of the Lot; the exact location of sidewalks and driveways and the drainage patterns of their Lot will differ from the model home plans, drawings or renderings.

H.	 Home Location.  The location of the home on the Property is at the sole discretion of Seller.  Seller reserves the right to determine the location and configuration of the home upon the Lot subject to Community and municipal requirements.  In the event that the type of home desired by Buyer will not fit on the Lot within Community and municipal requirements, Seller shall notify Buyer and (1) this Agreement shall be terminated and all Deposits returned to the Buyer and the parties shall be released from all further liability hereunder; or (2) at its option, Buyer may choose another lot and execute a new contract at the current prices for the home on that lot, in which case the Buyer’s Deposits shall be transferred to the new lot.  Buyer is hereby advised to review the recorded plat for the Property and to be aware of drainage, utility and other easements, if any, shown on the Plat affecting the Property.  Buyer shall be responsible for reviewing the Plat and determining the boundaries of the Property.  Neither Seller, Seller’s Broker nor their agents and employees are authorized to make any representation to Buyer about such matters.

I.	Home site Premiums.  Buyer acknowledges that a part of the Purchase Price may contain an amount for a home site/lot premium, and agrees that such home site/lot premium is a reflection of Seller’s internal value of the characteristics of this particular home site.  The premium is not based on trees, view, or other conditions that are beyond the control of Seller, it being the agreement of the parties that Seller is not making any representation as to such matters.  Buyer agrees that the home site premium is not refundable for any reason in the future.

J.	Lot Preparation.  Seller reserves the right to remove any trees that Seller deems necessary.  Seller expressly makes no promises whatsoever as to the existence or location of any tree on the Property or adjacent to the Property at Closing or thereafter.  The elevation of the home may require Seller to fill around trees when establishing the final grade of the Lot.  Seller does not guarantee the life or growth of any tree and Buyer expressly agrees and understands that construction activity sometimes unavoidably results in the death of trees on or about the construction area.  

K.	Landscaping.  “Landscaping” as used in this paragraph shall mean any of the following items that may be either currently existing or installed by Seller in the Community or on a lot:  trees, shrubs, plants, lawns, walkways, retaining walls, decks, fences, and similar structures. Sod, if any, is installed in accordance with standards established by Seller.  The Community may contain Landscaping that may be removed during the construction and development process.  Seller does not guarantee the location, replacement or survival of any existing Landscaping.  Shrubs and trees, if any, are installed (regardless of location) at the sole discretion of the Seller.  Buyer agrees that Seller is not required to install any Landscaping at times when weather conditions make it inappropriate to do so, in which event Seller agrees to install Landscaping at times when weather conditions make it appropriate to do so, in which event Seller agrees to install Landscaping at the appropriate time after Closing.  Buyer grants Seller or Seller’s contractors permission to enter upon the Property to install such Landscaping.  Seller in Seller’s sole discretion shall determine locations and typed of Landscaping.  Seller is not liable for any Landscaping, or damage or destruction to same.  Seller makes no warrant whatsoever as to the type, health, location or amount of Landscaping, which will exist, on the Property after construction.

L.	Adjacent Land Use.  Land adjacent to or surrounding the Community which is not owned by Seller, is not within Seller’s control and Seller shall not be liable to Buyer for any use or condition of Property adjacent to or surrounding the Community or the lot, whether or not owned by Buyer including but not limited to any commercial, industrial, institutional, multi-family residential or non-residential uses.  Seller makes no representation regarding land adjacent to or surrounding the Community. 
 
8.	 Pre-Closing.

A.	Entry During Construction.  Except as specifically permitted in Paragraph 8 below, Buyer will not hire or employ any contractors, subcontractors or any other persons, firms or corporation to do work in or on the Property until after Closing.  Buyer acknowledges that Seller and its representatives will handle all matters pertaining to Seller’s construction of the home and the Community.  Buyer acknowledges that certain common facilities which may ultimately be constructed in the Community may not be constructed at the time of Closing or for an indefinite time thereafter.  This transaction is in no way conditioned upon the construction of any such facilities.  Buyer agrees not to interfere with or interrupt any workmen at the site of the home or in the Community. Buyer understands and acknowledges that entry to the construction site of the home can be dangerous; that hazards may exist for injury or loss to person or property arising out of or in connection with such entry by Buyer, Buyer agrees to indemnify and hold Seller harmless from and against any and all loss, damage, costs, claim or expense arising from or in connection with such entry.  During construction, because of various insurance requirements for Buyer’s safety, neither Buyer nor any agent of Buyer shall enter the construction site without Seller’s prior consent, which consent may be arbitrarily withheld, unless accompanied by and employee or agent of Seller.  Buyer or Buyer’s agents’ entry, whether with or without Seller’s consent, shall be at Buyer’s own risk, and Seller will have no liability in the event of loss or injury to Buyer or Buyer’s agents. 

B.	Pre-Closing Homeowner Orientation and Homeowner Acceptance.  A minimum of five (5) business days prior to Closing Seller shall conduct with Buyer a “Homeowner Orientation” and “Homeowner Acceptance” walk-through inspection.  The Homeowner Orientation is to get the Buyer acquainted with the mechanics of their new home. Buyer understands that without a fully signed Homeowner Acceptance, Seller will not close and Buyer will not be permitted to take possession of the Property.  Buyer acknowledges by signing the Homeowner Acceptance that all items have been completed and accepted and approved by Buyer.  It is the policy of Seller that the Buyer’s home is one hundred percent (100%) completed at the time of Closing.  Any exceptions to this policy must be authorized by Seller’s Manager and agreed to by the Buyer in writing.  Buyer agrees that any items identified for correction during the Homeowner Orientation will be the only basis for claims as to any defects in workmanship and materials as to the home, unless specifically covered under the Builder Warranty (as defined below).  Buyer further agrees that any Independent Professional Inspection permitted under this Agreement must be completed prior to the Homeowner Orientation and that Buyer must bring such inspector’s findings to the Homeowner Orientation so the same may be included or addressed at the Homeowner Orientation.

C.	Inspector findings cannot be accepted after the Homeowner Orientation. Buyer further agrees that any Independent Professional Inspection permitted under this Agreement must be completed prior to the Homeowner Orientation and that Buyer must bring such inspector’s findings to the Homeowner Orientation so the same may be included or addressed at the Homeowner Orientation. Inspector findings cannot be accepted after the Homeowner Orientation.

D.	Independent Professional Inspection.  Buyer may have an inspection of the Property by an independent professional Inspector. 

i.	Independent Inspector Requirements.  The Inspector must, at the time of the inspection:  (1) maintain all business licenses required by law; (2) be a full-time professional inspector; (3) have general liability insurance in an amount of at least One Million Dollars ($1,000,000.00).  At the time of the inspection, Buyer shall provide proof to Seller that the Inspector meets these requirements.  All inspectors are required to sign in and sign out at the community sales office. 

ii.	Scheduling of Independent Inspection.  Buyer agrees to schedule an appointment with Seller for the inspection at least one (1) week in advance of the inspection.  The inspection shall be done at reasonable time during normal business hours and without interfering with Seller’s activities on the Property.  There shall be no invasive testing without Seller’s written consent. Seller or its representative may accompany the Inspector, If Seller so desires.  The inspection must be completed and any written report prepared by the Inspector must be delivered to Seller prior to the Homeowner Orientation.  

iii.	Independent Inspection Objections.  If the Inspector’s timely delivered report discloses items which the Inspector believes are defective, and which are unacceptable to Buyer (the “Inspection Objectives”), Buyer shall notify Seller, in writing prior to the Homeowner Orientation, the items which Buyer finds objectionable.  

iv.	Independent Inspection Fees.  Buyer agrees to pay all inspection fees, engineering fees, and other expenses of any kind relating to Buyer’s inspection of the Property under this Agreement.  Upon request, Buyer agrees to furnish proof in an affidavit form to Seller, any title insurance company, or any attorney certifying title that all such fees and expenses have been paid in full.

v.	Indemnity Regarding Independent Inspection.  Buyer agrees to indemnify and hold harmless Seller, its employees, contractors and invitees from any and all injuries, losses,, liens, claims, judgments, liabilities, costs, expenses or damage (including reasonable attorneys’ fees and court costs) sustained by or threatened against Seller arising out of, relating to or based on in any way the inspections by Buyer or its representatives or by Buyer’s failure to abide by the provisions of Paragraph 8.

F.	Damage to Home.  If between the date of this Agreement and the Closing, the home is damaged by fire, natural disaster or other casualty, the following shall apply: 

i. Risk of Loss Prior to Closing. During the period of construction and until Closing, the Seller shall maintain in full force and effect, at the Seller’s expense, an all-risk insurance policy for the full replacement value of all completed portions of improvements included in the Property, and all construction materials located on site; and workmen’s compensation insurance coverage to insure against claims of persons employed by Seller to complete the Property. 

ii. Risk of Loss Until Closing.  Buyer assumes the risk of loss to the home by fire, natural disaster or other casualty from and after Closing.  Buyer should be aware that the home, however well constructed, may be subject to damage or destruction by naturally occurring events and all risks associated with all natural occurrences shall be borne by Buyer from and after Closing.

9.	Closing.

A.	Closing Date and Location.  Buyer acknowledges and agrees that Seller has the right in its sole discretion to schedule the date, time and place for the Closing (the “Closing”) and that Buyer shall close on such Closing date (such actual date of Closing is referred to as the “Closing Date”).  The Closing Date will be set by notice from Seller to Buyer approximately three weeks prior to the anticipated Closing Date.  An affidavit of one of Seller’s employees or agents that such notice was given will be conclusive for purposes of providing that notice was given.  

B.	Receipt of Notice of Closing.  The fact that Buyer fails to receive the notice of Closing because Buyer has failed to advise Seller of any contact information changes, or because Buyer has failed to pick up a letter when Buyer has been advised of an attempted delivery or for any other reason, shall not relieve Buyer of Buyer’s obligation to close on the scheduled Closing Date, unless Seller otherwise agrees in writing to postpone the Closing Date.  If Seller agrees in writing to reschedule the Closing at Buyer’s request or because Buyer (if a corporation) has failed to produce all corporate documents requested by Seller, or for any other reason (except for delay desired by Seller or Seller’s Preferred Lender), Seller may impose a late charge equal to the higher of ONE HUNDRED FIFTY DOLLARS ($150.00) per day, for every day that the scheduled Closing is delayed.  Buyer agrees such late charge is appropriate in order to cover Seller’s administrative and other expenses resulting from a delay in Closing.  Seller is not required to agree to reschedule Closing, but Seller may reschedule Closing in Seller’s sole discretion.  In addition to any other sums payable pursuant to this Agreement, Buyer will pay Seller and additional charge of ONE HUNDRED DOLLARS ($100.00) for re-preparation of the Closing documents (except for delay by Seller or Seller’s Preferred Lender).  Prior to the Closing, a certificate of occupancy covering the home shall be issued by the proper governmental agency.

C.	Place of Closing.  Buyer and Seller agree that this transaction shall be closed by Meridian Title Company  or such other title company approved by Seller.

D.	Payment and Clearance of Funds.  At Closing, Buyer agrees to pay the Seller the balance of the Purchase Price and any additional amount owed under this Agreement in United States Dollars by official bank check or by wire transfer.  If Seller does not receive all funds, Buyer is required to pay or have paid to Seller at Closing, including mortgage proceeds, if any, or if those funds have not cleared, Buyer will not be entitled to take possession of the Property until all funds have been received and have cleared.  

E.	Deed.  At closing, Seller will convey clear and marketable title to the Property to Buyer by Special Warranty Deed (the “Deed”) subject only to (1) zoning ordinances, (2) general utility and other easements of record, (3) subdivision restrictions of record, and (4) such other easements, restrictions and encumbrances specified in this Agreement or which are shown on the subdivision plat on file with the Country Recorder where the Property is located.  Clear and marketable title as used in this Agreement shall mean title which a title insurance company, licensed to do business in Utah, will insure at its regular rates, subject only to standard exceptions.  If Seller is unable to convey clear and marketable title in accordance with this Agreement, Seller shall refund Buyer’s Deposits, this Agreement shall be terminated, and neither party shall have any further claim against the other by reason of this Agreement.  Seller shall not be required to bring any action or otherwise incur any expense to render the title to the Property marketable.  Seller and Buyer agree that all papers necessary to carry out the terms of this Agreement shall be produced, executed and delivered in the time required to fulfill the terms and conditions of this Agreement.

F.	After-Acquired Title.  Seller may not own title to the Property as of the date of this Agreement; and Seller’s obligations under this Agreement are contingent upon Seller obtaining title to the Property prior to the start date of construction for the home to be built on Property.

10.	Closing Costs.

A.	Items Paid By Buyer at Closing.  At Closing, Buyer shall pay the following:

i.	All costs, fees and charges to have the Title Company search title and prepare: (a) the warranty deed; (b) owner’s affidavit; (c) Buyer’s power of attorney, if applicable; and (d)  all promissory notes, deeds to secure debt and other loan documents required by any lender providing financing in the transaction; and 

ii.	All closing costs, tax service charges, recording costs, courier fees, overnight delivery fees, document preparation fees, underwriting fees, delivery, copying and handling charges, and all other costs, fees, charges and amounts to otherwise close this transaction except as they relate to the clearance of title encumbrances and/or defects necessary for Seller to be able to convey clear and marketable title to the Property.

B.	Items Paid By Seller at Closing.  At Closing, Seller shall pay the following:

i.	In the event this transaction is closed by a Title Company approved by Seller and Buyer obtains financing from Seller’s approved lender list, then Seller will contribute the amount of Seller Paid Closing Costs shown on Exhibit “A” towards closing costs to be used by Buyer as a contribution for the items in Paragraph 10 above.  In addition, Buyer may use the Seller’s Paid Closing Costs contribution to pay for survey costs, appraisals, insurance (including flood insurance, if applicable), inspections, termite treatment and/or repair guarantee and, if Buyer is obtaining mortgage financing, escrow establishment charges, loan discount points, costs to buy down a loan, or other similar costs (unless any of the same establishment charges, loan discount points, costs to buy down a loan, and other similar costs shown on Exhibit A to the Agreement shall be reduced dollar for dollar by any lender credit provided to the Buyer at Closing).  Any unspent Seller Closing Costs sums, if any, shall remain with the Seller;

ii.	Except as provided above, all sums, costs, charges and fees necessary to clear title encumbrances and/or defects to allow Seller to be able to convey clear and marketable title to the Property; and

C.	Prorated Amounts.  Seller and Buyer agree to prorate the following:  (1) real estate   taxes and Community association assessments, if any, for the calendar year in which the sale is closed, as of the date of closing; and (2) all utility bills as of the Closing date (or the day of possession of Property by Buyer, whichever is later) that are issued after Closing and include service for any period of time Property was owned/occupied by Seller or Seller’s invitees.  In the event real estate taxes are paid at Closing based upon an estimated tax bill or tax bill under appeal, Buyer and Seller upon the issuance of the actual tax bill or the appeal being resolved shall promptly make any financial adjustments between themselves as are necessary to correctly prorate the tax bill.  This Paragraph shall survive the Closing.

11.	Possession.  Seller shall grant possession of the Property to Buyer immediately after funding.  In no event shall Buyer, prior to Closing receipt by Seller of the Purchase Price in full:  (a) move any household goods or other material into the home located on the Property; or (b) make any physical changes, alterations or additions, including but not limited to, painting, wallpaper installation, wiring, installation of curtain rods, light fixtures and fans, satellite dishes or fencing; (c) interfere with the contractors or subcontractors completing the construction of the home located on  the Property; or (d) have material or supplies delivered to the Property or to the job site.  All work and materials to be performed or supplied under this Agreement shall be performed or supplied by Seller’s independent contractors, employees, agents or suppliers.

12.	 Default.

A.	By Buyer.  If Buyer fails to honor his/her promises or to perform his/her obligations under this Agreement (including making scheduled Deposits), Buyer will be in “Default”.  If Buyer is still in default five (5) days after Seller sends Buyer notice of such default, Seller may cancel this Agreement.  IF, HOWEVER BUYER’S DEFAULT IS IN FAILING TO CLOSE ON THE SCHEDULED CLOSING DATE, THEN SELLER MAY CANCEL THIS AGREEMENT WITHOUT GIVING BUYER ANY PRIOR (OR SUBSEQUENT) NOTIFICATION OR OPPORTUNITY TO CLOSE AT A LATER DATE.  Upon Buyer’s default (and the expiration of any notice period, if applicable), all of Buyer’s rights under this Agreement will end, and Seller may resell the Property without any accounting to Buyer.  Buyer understands that because Seller has taken the Property off the market for Buyer, and that Seller has spent money on sales, advertising, promotion and construction and has incurred other costs incident to this sale, Buyer’s default will damage Seller.  As compensation for this damage, in the event Seller cancels this Agreement because of Buyer’s default, Buyer authorizes Seller to keep (or if not then paid by Buyer, Buyer will pay to Seller) all Deposits (including, without limitation, those on options, extras, upgrades and the like) Buyer has then made (and which would have been required to have been made had Buyer not defaulted) all interest which was, or would have been, earned on them, all as liquidated damages and not as penalty.  Buyer and Seller agree to the foregoing compensation damage because (i) ascertaining the actual damages in the event of such a default is difficult, (ii) it is impossible to more precisely estimate the damages to be suffered by Seller upon Buyer’s default, (iii) such payment of the Deposits is intended not as a penalty, but as full liquidated damages, and (iv) the amount of the Deposits constitutes a good faith estimate of the potential damages arising therefrom.  If Buyer defaults, Buyer promises not to sue for the return of any part of his/her Deposits.  Any damage or loss that occurs to the Lot or home while Buyer is in default will not affect Seller’s right to liquidated damages.

B.	By Seller.  If Seller defaults under this Agreement, except as otherwise provided in this Agreement Buyer will give Seller notice of such default, and if Seller has not cured the default within sixty (60) days after such notice is given, Buyer will have such rights as may be available in equity or under applicable law.  If Seller has commenced to cure the default within such sixty (60) day period and is diligently proceeding to complete such cure, Seller shall be granted a reasonable period of time after the expiration of such sixty (60) day period to complete such cure.  Should Seller fail to provide any item of construction required to be provided by Seller’s Plans and Specification, Buyer’s sole remedy against Seller will be to collect liquidated damages from Seller in an amount equal to the greater of (1) Seller’s cost for such item and for the installation of such item had such item been installed at the appropriate time during construction or (2) Seller’s specific charge for such item if such item is an extra and Buyer has paid for it in full in advance and if Buyer has not paid for it in full, then the amount for purposes of this Paragraph 12.B (3) will only be so much of that price as has been paid by Buyer, if any.  Buyer and Seller acknowledge and agree that by failing to provide an item of construction the item of construction omitted is therefore not covered by any warranty, such warranty dealing only with defective items which are actually installed and which are covered by the terms of such Agreement, and, therefore, the remedies set forth in this section shall be the exclusive remedies relating to Seller’s failure to provide any item of construction.  The provisions of this section will survive the Closing.  

13.	Brokers.  In negotiating this Agreement, Selling Broker (if applicable) has entered into a client relationship with Buyer and has rendered a valuable service for which reason Selling Broker is made a party to this Agreement to enable Selling Broker to enforce its commission rights.  

A.	Broker Commission.  Seller agrees to pay Selling Broker the commission described on Exhibit “A” when this sale is closed.  If the sale described in this Agreement does not close for any reason, no commission shall be due to Selling Broker. If applicable, the Seller’s Broker engaged by Seller and identified on Exhibit “A” as “Listing Broker” has entered into a client relationship with Seller and shall be compensated by Seller by separate agreement.  Buyer agrees to indemnify and hold harmless Seller from any claim whatsoever made by any real estate broker or salesperson for any commission and for the costs and expense of defending any claim for commission, including, without limitation, reasonable attorneys’ fees and legal costs, arising out of or related to this transaction, at trial and upon appeal.  The provisions of this section will survive the Closing of the purchase and sale of the Property.  

B.	Broker Disclosure.  Listing Broker hereby discloses that it is a broker licensed by the Utah Division of Real Estate and that its sales agents or sales associates are also agents licensed by that same authority who represent the Seller in this transaction; and further discloses that some of its licensed agents and employees may also be employees of Seller and acting directly on its behalf in this transaction.  Seller hereby discloses that some its officers, directors and employees are licensed as agents of broker by the Utah Division of Real Estate.  Other persons involved in the sales process (such as closing coordinator, construction staff, hostesses, model attendants, etc.) are not licensed.  Seller and Buyer acknowledge that they have not relied upon the advice or representation, if any, of Seller, Listing Broker, Seller’s Broker, or their associated salespersons relative to the legal and tax consequences of the Agreement.  Buyer has not relied upon the advice or representations, if any, of Seller, Listing Broker, Seller’s Broker, or associated salespersons regarding type of loan, or the terms of any particular loan program.  

14.	 Warranty.  

A.	Limited Warranty from Builder.  Seller hereby provides to Buyer the Limited Warranty attached hereto as Exhibit “B” (The “Builder Warranty”), which Builder Warranty is incorporated herein by this reference and expressly made a part hereof, but which Builder Warranty shall only become effective from and after the Closing as set forth therein.  Buyer and Seller, by signing this Agreement, expressly accept the terms of Builder Warranty. In the event that Buyer is unsatisfied with Seller’s rejection or handling of any claim under the Builder Warranty, Buyer and Seller must participate in the mandatory negotiation, mediation and/or arbitration processes described below in this Agreement. 

B.	Appliances and Consumer Products.  Buyer agrees that the warranties of all appliances and other consumer  products installed in the home are those of the manufacturer or supplier, and same are assigned to Buyer, effective on the Closing date.  Seller shall not be liable for any personal injury or other consequential or secondary damages or losses arising out of any defect(s) in such appliances.  

15.	Seller’s Use of the Common Areas.  As long as Seller, or any nominees of Seller, owns any lot in the Community, Seller and/or its nominees shall have the right and privilege to maintain general sales and construction office in and about the Community, including model residences, and to have their employees present on the premises to show homes, use the common areas of the Community and, without limitation, to do any and all other things necessary or appropriate by them to sell, resell, all without charge or contribution including signs and temporary entrance features; provided, however, that such activities shall be carried on in such a manner as will not unreasonably interfere with the Buyer’s enjoyment of the Property.

16.	Construction Activities.  All owners, occupants and users of the Community are hereby placed on notice that Seller, its agents, contractors, subcontractors, licensees and other designees will be, from time to time, will conduct excavation, construction and other activities within or in proximity to the Community.  By the acceptance of their deed or other conveyance or mortgage, leasehold, license or other interest, and by using any portion of the Community, each such owner, occupant and user automatically acknowledges, stipulates and agrees (1) that none of the aforesaid activities shall be deemed nuisances or noxious or offensive activities, hereunder or at law generally, (2) not to enter upon, or allow their children or other persons under their control or direction to enter upon (regardless of whether such entry is a trespass or otherwise) any property within or in proximity to the Community where such activity is being conducted (even if not being actively conducted at the time of entry, such as at night or otherwise during non-working hours).  (3) Seller and the other aforesaid related parties shall not be liable for any losses, damages (compensatory, consequential, punitive or otherwise), injuries or deaths arising from or relating to the aforesaid activities, except resulting directly from Seller’s gross negligence or willful misconduct, (4) any purchase or use of any portion of the Community has been and will be made with full knowledge of the foregoing and (5) this acknowledgement and agreement are material inducements to Seller to sell, convey, or allow the use of the Property.  This section shall survive the Closing.

17.	Plan Copyright.  It is understood by Buyer that the architectural plan for the proposed home is the property of Seller and is protected by United States copyright laws and will not be given to Buyer or any other persons.  Any modification to such plan suggested or made by Buyer becomes the property of Seller.  Buyer agrees not to infringe on Seller’s copyrights in any manner, including the construction of a dwelling substantially similar to that, which is the subject of the Agreement.  Any violation of the copyright law shall also constitute a breach of the Agreement. This section shall not merge in the deed of conveyance and shall survive Closing. 

18.	Marketing.  Buyer agrees that Seller may use exterior photos of the Property and home in promotional literature and advertising, after Closing and without restriction, for a period of ten (10) years after the Closing Date.  Seller shall also have the right to place, from time to time, marketing and directional signs along a five (5) foot section of land adjacent to the road right-of-way on the Property for a period of two (2) years after the Closing Date.  

19.	Wood Infestation & Soil Treatment Certification.  At Closing, Seller shall provide Buyer with a current termite treatment certification.  If any additional inspections or reports are required by Buyer or Lender, Buyer shall pay all costs for the additional inspections or reports.  

20.	Changes and Inquiries.  Buyer agrees to direct all inquiries and questions, including but not limited to Sellers contractors, subcontractors, city inspectors, city permitting officers, etc. to Seller’s sales associate, who will provide Buyer with a timely response.  Changes to this Agreement may only be made by a written amendment signed by Buyer and Seller.  NO EMPLOYEE OF SELLER IS AUTHORIZED TO ACCEPT THIS AGREEMENT WITH ANY CHANGES (EXCEPT TO FILL IN BLANKS OR CHECK BOXES WHERE APPROPRIATE) OR WITH RIDER, AMENDMENTS OR SPECIAL STIPULATIONS THAT ARE NOT ON SELLER’S APPROVED FORM(S).

21.	Miscellaneous Provisions.
A.	Waiver.  Seller’s waiver of any of its rights or remedies shall not operate to waive any other of Seller’s rights or remedies or to prevent Seller from enforcing the waived right or remedy in another instance.

B.	Survival, Incorporation and Severability.  The provisions and disclaimers in this Agreement, which are intended to have effect after the Closing, shall survive the Closing.  In the event that any clause or provision of this Agreement shall be void or unenforceable, such clause or provision shall be deemed deleted to the minimum extent necessary so that the balance of the Agreement is enforceable.  

C.	Governing Law.  Any disputes that develop under this Agreement will be settled according to the state in which the Property is located.  

D.	Time is of the Essence.  Buyer acknowledges that time is of the essence in connection with this transaction and any delay in Buyer’s performance under this Agreement will prejudice Seller. 

E.	Notice.  Except as otherwise provided for in the Agreement, any notice required or permitted to be given in connection with this Agreement shall be in writing and sent by United States certified mail with return receipt requested, overnight professional courier, facsimile or email scan.  All notices shall be effective upon delivery.

F.	Radon Gas.  Seller makes the following disclosure; Radon is a naturally occurring radioactive gas that, when it has accumulated in the building in sufficient quantities, may present health risks to person who are exposed to it over time.  Levels of radon that exceed federal and state guidelines have been found in buildings in Utah.  

G.	English Language.  Buyer acknowledges that this Agreement was negotiated in the English language.

H.	Assignment.  The rights and interest of Seller in and to this Agreement may be assigned or transferred by Seller to any entity.  The rights and interest of Buyer in and to this Agreement may not be assigned or otherwise transferred, voluntarily or by operation of law, by Buyer without the written consent of Seller, which consent may be withheld by Seller at its sole discretion.

I.	Joint Obligation.  If Buyer is comprised of more than one person or entity, then each party comprising Buyer shall be jointly and severally responsible for the performance of Buyer’s obligations under this Agreement.

J.	Cooperation.  Buyer and Seller agree to execute all instruments and documents and to take all actions as may be required herein and by Lender, if any, to consummate the sale and purchase herein contemplated.  

K.	No Tax Withholding.  Section 1455 of the Internal Revenue Code, provides that a transferee of a United States real property interest must withhold tax if the transferor (i.e. Seller) is a foreign person.  In order to inform Buyer that withholding of tax is not required in connection with this transaction, Seller certifies that Seller is exempt from the withholding requirement.

L.	Agreement on Property Disputes.

i.	Mediation.  Any and all disputes arising out of or related to this Agreement, shall first be submitted to mediation before a mutually-acceptable mediator.  Mediation may be demanded by either party at any time upon written notice to the other Party as herein provided.  In furtherance of this Agreement to mediate, the parties shall: (i) select a mutually-acceptable mediator; (ii) exchange all discoverable documents which either believes to be relevant and material to the issue(s) in dispute; (iii) exchange written position papers which state their position in the dispute and outline the subject matter and substance of the anticipated testimony of individuals having personal knowledge of the facts underlying the dispute; (iv) engage and cooperate in effective mediation, and; (v) mediate in good faith.,  The mediation shall be conducted in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association in effect as of the date of this Agreement, except that said mediation need not be filed with or administered by the American Arbitration Association.  In the event the parties are unable to agree upon a mediator, witness expenses shall be borne by the party producing the witness.  All other fees, expenses, and related deposits, including but not limited to filing, administration, and/or mediator fees and costs, shall be borne equally by the parties. 

ii.	Arbitration.  In the event of any dispute related to the Property or this Agreement (including the Builder Warranty attached hereto and made a part hereof) that is not resolved by mediation shall be resolved through binding arbitration in the State of Utah before a sole arbitrator pursuant to the Commercial Dispute Resolution procedures of the American Arbitration Association and Utah Code Ann. 78-31a-101, et seq., in effect as of the date of this Agreement, except that said arbitration need not be filed with or administered by the American Arbitration Association.  The arbitration shall be conducted before a single arbitrator selected by the parties.  In the event the parties are unable to agree upon an arbitrator, the arbitrator shall be appointed by a court of competent jurisdiction.  Witness fees and expenses and related deposits, if any, shall in the first instance be paid by the parties as their interest may appear.  Arbitrator fees, expenses, and related deposits shall in the first instance be paid equally by the parties.  Financial responsibility for all such administrative, filing, and arbitrator fees and expenses may be reallocated by the arbitrator in the award.  THE PARTIES HEREBY WAIVE ANY AND ALL RIGHTS TO A JURY TRIAL ON ANY CLAIM OR CONTROVERSY WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR LACK OF PERFORMANCE HEREUNDER.  

C.	Entire Agreement.  Buyer certifies that Buyer has read every provision of this Agreement and each Exhibit and Addendum attached hereto and that this Agreement constitutes the entire agreement between Buyer and Seller.  This Agreement is the entire agreement for the sale and purchase of the Property and once it is signed it can only be amended in writing.  Prior agreements, representations, understanding, and oral statement not reflected in this Agreement or by Amendment are void and have no effect.  Buyer acknowledges that he/she has not relied on any representation, newspaper, radio or television advertisement, warranties, statement, or estimates of any nature whatsoever, whether written or oral, made by Seller’s sales persons, agents, officers, employees, co-operating brokers (if any) or otherwise except as herein specifically represented.  Buyer has based his/her decision to purchase the Property on personal investigation and observation.  THIS IS A LEGALLY AND BINDING AGREEMENT.  

22.	Exhibits and Addendum.  The following Exhibits and Addendum are attached and made a part of this Agreement; the provisions set forth on the Exhibits shall, if conflicting with the printed portions of this Agreement, control:

@@DRAFT-DS-CHECK1@@	Exhibit  “A”  Signature/Legal/Costs Breakdown		@@DRAFT-DS-CHECK5@@	Exhibit  “I”  	
@@DRAFT-DS-CHECK2@@	Exhibit  “B”  Limited Warranty		@@DRAFT-DS-CHECK6@@	Exhibit  “J”	
@@DRAFT-DS-CHECK3@@	Exhibit  “C”  Special Stipulations		@@DRAFT-DS-CHECK7@@	Exhibit  “K”	
@@DRAFT-DS-CHECK4@@	Exhibit  “D”  Included Features		@@DRAFT-DS-CHECK8@@	Addendum   Subject to Sale Condition	

23.	Seller’s Acceptance.  Seller has the right to terminate this Agreement for any reason within ten (10) business days after the date a manager of Seller has received it.  Deposit of Buyer’s Earnest Money deposit does not constitute acceptance.  Termination by Seller is accomplished by personal delivery, email or by depositing in the mail a notice of termination to the address given by Buyer.  In the event of a termination, Seller shall return Buyer’s Earnest Money deposit via U.S. Mail at Buyer’s address as stated in Exhibit “A” within fourteen (14) business days of the date Buyer’s check for the Earnest Money deposit is honored by the bank it is drawn upon.

IN WITNESS WHEREOF, the undersigned parties have set their hands and seals as of the date indicated:

Buyer	______________________________________________________	
Buyer Signature	@@BUYER-DOCUSIGN-SIGNHERE@@	
Date	@@BUYER-DOCUSIGN-DATEHERE@@	

	
Buyer	______________________________________________________	
Buyer Signature	@@COBUYER1-DOCUSIGN-SIGNHERE@@	
Date	@@COBUYER-DOCUSIGN-DATEHERE@@	
		
Seller	______________________________________________________	
Seller Signature	@@SALESMANAGER-DOCUSIGN-SIGNHERE@@	
Date	@@SALESMANAGER-DOCUSIGN-DATEHERE@@	
		
Selling Broker	_____(broker’s_company)_________________________________	
Selling Brokers Agent	_____(broker’s_full_name)________________________________	
UT RE License Number	     _____(brokers_realtor_license)_________________________	
Selling Brokers Agent Signature	@@BROKERAGENT-DOCUSIGN-SIGNHERE@@	
Date	@@BROKERAGENT-DOCUSIGN-DATEHERE@@	
		
Listing Broker	Garbett Homes	
Listing Brokers Agent	____(sales_rep_full_name)________________________________	
UT RE License Number	____(sales_rep_license_number)___________________________	
Listing Brokers Agent Signature	@@SALESREP-DOCUSIGN-SIGNHERE@@	
Date	@@SALESREP-DOCUSIGN-DATEHERE@@	

				
EXHIBIT “B” - LIMITED WARRANTY

The Limited Warranty (this “Limited Warranty”) is an exhibit to and part of the New Home Purchase Agreement (“Agreement”) to which it is attached by and between the undersigned Buyer (“Buyer”) and Seller (“Seller”),.   Each defined term used herein shall have the same meaning as provided in the Agreement, unless otherwise provided in this Limited Warranty.
1.	 LIMITED WARRANTY.  Seller agrees that, for the term of this Limited Warranty, it will comply with the “builder” responsibilities set forth in the Garbett Homes Warranty Manual, current edition subject to the terms and conditions of this Limited Warranty and the Warranty. Buyer acknowledges receipt of a copy of the Garbett Homes Warranty Manual and agrees that said Manual shall be deemed part of the Agreement and this Limited Warranty.  

2.	TERM.  The term of this Limited Warranty (“Warranty Term”) shall be one (1) year, beginning on the date of Closing or the date of occupancy, whichever occurs first, except for items in the Manual that are to meet a standard only as of the Closing.

3.	NOTICE TO SELLER.  In the event of the occurrence of a problem as to which the Seller has responsibility in the Manual, the Buyer must provide written notice of such problem to the Seller.  The notice must specify the problem in reasonable detail and must be given to Seller prior to expiration of the Warranty Term.  Seller shall not be responsible for problems as to which a required, timely notice has not been given.  Buyer shall permit Seller or its agents, employee or contractor’s reasonable access to the Property during normal business hours (Monday – Friday 8:00 am – 5:00 pm) to inspect or perform work required under this Limited Warranty.  

4.	EXCLUSIONS.  Excluded from this Limited Warranty are the following:

a.	Any items for which Seller is not responsible as Builder under the Manual;
b.	Loss or damage for bodily or personal injury of any kind, or for mental and emotional pain and suffering;
c.	Loss or damage to personal property;
d.	Loss or damage resulting from Buyer’s failure to comply with its obligations in the Handbook or otherwise resulting from Buyer’s improper maintenance or improper operation;
e.	Loss or damage resulting from Buyer’s failure to provide prompt notice to Seller of a problem for which Seller has responsibility in the Manual;
f.	Consequential, indirect or incidental damages of any kind or nature;
g.	Any defect, damage, or loss resulting actions or inactions of persons other than the Seller, such as independent contractors retained by the Buyer;
h.	Attorney’s fees, expert’s fees, or other similar expenses of Buyer;
i.	Loss of damage caused by external forces, such as acts of God, windstorm, fire, explosion, smoke, water, hail, lightening, falling trees, flood, earthquakes, radon or other gases, pollution, toxic substances, civil disturbance, changes in the level of the underground water table which are not reasonably foreseeable at the time of construction, or criminal acts of a third party;
j.	Any loss, damage, defect, cost or expense which is caused by an occurrence for which compensation is provided by state legislation, or which is covered by insurance of Buyer;
k.	Any loss of insects, animals or any other creatures;
l.	Any loss or damage arising while the Property is being used primarily for nonresidential purposes of from the Property being used for nonresidential purposes;
m.	Costs of shelter, transportation, food, moving, storage, or other incidental expenses related to relocation during repair, or any other cost or damages relating to loss of, inconvenience, or annoyance;
n.	Normal wear and tear, normal deterioration, or normal changes that are the result of characteristics of materials used;
o.	Loss or damage resulting from Buyer’s failure to comply with warranty requirements of manufacturer’s;
p.	Any appliances, piece of equipment, or other item that is a consumer product for the purpose of the Magnuson-Mass Warranty Act, 15 U.S.C 2301, et. Seq. installed or included in the Property, including but not limited to any heating and air  conditioning equipment, heat pump, electric air cleaner, exhaust fan, thermostat, space heater, furnace, air conditioning system, humidifier, garbage disposal, water heater, water softener, sump pump, refrigerator, freezer, range, oven, dishwasher, oven hood, clothes washer, clothes dryer, ice maker, central vacuum system, smoke detector, fire alarm, fire extinguisher, garage door opener, chime, water pump, intercom, burglar alarm, electric meter, or gas meter.
q.	Defects in landscaping, including sod, seeding, shrubs, trees, grass, ground cover, plants, and fences;
r.	Loss or damage of any item from defect in workmanship or material, including without limitation, any cracks, chips, dents, stains, or marks, except to the extent such items are expressly covered by the Warranty Manual;
s.	Loss or damage resulting from abnormal loading on floors by the Buyer which exceed design loads as mandated by applicable building codes;
t.	Exterior hardware;
u.	Loss or damage resulting from the use of candles, including but not limited to, fading and melting of paint or other surfaces.

5.	OTHER RIGHTS.  The Limited Warranty is in addition to any rights that Buyer may have under state, federal and local laws, including but not limited to rights under applicable governmental codes, regulations or ordinances.,

6.	OPTIONS AVAILABLE TO SELLER.  At Seller’s sole discretion, Seller may repair, replace, or pay Buyer the reasonable cost of repairing or replacing the defective item.  If Seller repairs or replaces any defects, such act shall not extend the term of the Limited Warranty beyond its original expiration date.  Unless a problem constitutes an emergency or additional material damage would result from delay in addressing such problem, Seller has the option of waiting to address all or several problems at once or in a group.  Notwithstanding any provision herein to the contrary, Seller’s total liability for defects under this Limited Warranty shall not exceed the purchase price of the Property.  Seller reserves the right, at Seller’s sole discretion, without being obligated to exceed all guidelines to a similar degree for other homeowners whose circumstances are different.  
7.	BUYER ACKNOWLEDGMENT. Buyer understands and agrees that Seller’s obligations under this Limited Warranty are subject to and limited by standard residential construction practices and reasonable tolerances in workmanship of construction, including those contained in the Garbett Homes Warranty Manual. Buyer further acknowledges that this Limited Warranty is limited to acceptable industry standards and best practices. In the event Buyer requests any repairs or the replacement of items considered by Seller to be reasonably outside the scope of this Limited Warranty, and the parties are unable to come to a mutual resolution of such matter, Seller shall have the exclusive option, without obligation, at Sellers’ sole and absolute discretion, to repurchase the Property at the same price and terms described in the Agreement upon written notice to Buyer.

8.	MISCELLANEOUS.  This Limited Warranty is a part of the Agreement and incorporates its terms and provision (including without limitation those requiring mandatory mediation and binding arbitration), except to the extent they conflict with the terms of this Limited Warranty, in which event the terms of the Agreement shall prevail.  To the extent there are any conflicts between the Limited Warranty and the Manual whether in substance, procedures, terminology or otherwise, the terms of the Limited Warranty shall prevail.  This Limited Warranty shall be governed by and construed in accordance with the laws of the State of Utah, without regard to conflicts of law.  Buyer’s rights under this Limited Warranty are not assignable or transferable to any subsequent purchaser of the home and any purported assignment shall be void and of no force or effect.  If any provision of this Limited Warranty is determined to be in conflict with the applicable laws in any one or more circumstances, or declared unenforceable by a court of competent jurisdiction, that term or provision shall be deemed stricken from the Limited Warranty to the extent necessary to comply with applicable laws and will not affect the enforceability of the remaining provisions which shall remain in full force and effect.  This Limited Warranty may not be amended or modified in any way other than in a written agreement by both parties.  

Buyer	@@BUYER-DOCUSIGN-SIGNHERE@@	Date:	@@BUYER-DOCUSIGN-DATEHERE@@	
Buyer	@@COBUYER1-DOCUSIGN-SIGNHERE@@	Date:	@@COBUYER1-DOCUSIGN-DATEHERE@@	
Seller	@@SALESMANAGER-DOCUSIGN-SIGNHERE@@	Date:	@@SALESMANAGER-DOCUSIGN-DATEHERE@@