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HomeMy WebLinkAboutLegal DocumentGF4~910319-GORDON E. CARSTENS AND ROBERT J. MAYS KECORDTNG PD BY UNIVERSITY TITLE CO. pETURN TO:GORDON E. CARSTENS ~ ~ 2400 BARAK LN. Exhibit D BRYAN,TX. 77802 ""'9 r `'"`~ '~~ --., ~ _ k ROAD EASEMENT.. DECLARATION AND NAINTENANCE AGREII~IENT ~ ~ '~ STATE OF TEXAS § ~ ~.L ~ ~ ~ ,~~~; '.,:,~ : ",y ^ ~. '~. COUNTY OF BRAZOS § < ~ C . '~ i Y ~..~'!-'°t T;;~~),F CttiK:'f~~Ct~iJ This Declaration and Agreement is made this ~ '"day.__ of°~-~;~,,,.~;E~;: ~.i :~ ~. v~-~5~, 1991, by and between GORDON E . CARSTENS ,and ROBERT J . MAY (the Owners). R E C I T A L S 1. The Owners are vested with fee simple title consisting of 20.889 acres, more or less, and being more particularly described in Exhibit "A", attached hereto. and made a part hereof .(the Property). 2. Within the Property's boundaries, the Owners wish to create a perpetual uninterrupted and free access easement and right-of-way for the use. of themselves and their heirs and assigns. 3. The Owners further desire to make provision for the maintenance and repair of the road easement, and. to create the means by which decisions for maintenance and repair can be made by the Owners and their heirs and assigns. 4. The Owners desire to provide for the construction,. repair and maintenance of an attractive and aesthetically pleasing entrance way and exterior fence along Timberline Drive on the southeast boundary of the Property. 5. The Owners wish to reserve the right to add additional property _to the terms, coverage, benefits and burdens of this ROAD HASHMHNT DHCLARATIONAND MAINTBNANCH AGRSBMHNT:MAY:CARSTHNS:Sa V0~ ~f ~~ ~~ ~~~~ ~~~ _ ~ „.~, Declaration and Agreement,.. and to reserve the right to dedicate the easement to the public at a later date in their sole discretion. DECLARATION AND AGREEMENT 1. The Owners hereby. declare, for the benefit of the Property, themselves, and their heirs and assigns., but not for and to the public in general, _an' easement and right-of-way (the. "easement") upon and across the road described as a strip of land in Exhibit "A", attached hereto and made a part. hereof for all purposes, which road extends from Timberline Drive to its point of termination. The .Owners reserve fee. simple title to the easement. The easement declared. and. c,.eat~d herein is ap~urtena_nt ~7~~ incidental to ownership of all or any portion of the Property, and the Owners and their heirs and assigns. shall each have' the :non- exclusive, but free, uninterrupted and perpetual right in, on and over the easement. The purpose of the easement is to provide a right-of-way for .ingress and egress to various portions of the Property from Timberline Drive to its point. of termination, for pedestrian and ordinary passenger or farm vehicles. 2. A three-rail board fence and entrance way (the "fence area") shall be constructed along Timberline Drive by the Owners, and it shall be maintained and repaired as necessary. for the purpose of providing an attractive and aesthetically pleasing entrance appearance along Timberline. Drive, including repairs to the structure of the fence, or paint, as the Owners or Committee defined below deem appropriate. ROAD BASBMBNT DBCTJIRATION AND NAINTBNANCE AGREEMBNT:NAYr CARSTENS:2a Page 2 oP 10 Pages 1~0.- ~f ~-1 ]y n~^r Ms'~ ~ NU. 3. Additional property may hereafter be added to the terms,. coverage, benefits, and burdens of this Declaration and Agreement by Owners, and only by Owners, in their sole and absolute discretion. Owners may also, in their sole and absolute discretion, later dedicate the road to the public. 4. Gordon E. Carstens ("Carstens") shall be the sole representative of the Owners for the purpose of making all other decisions with xegard to repair and maintenance of the easement or fence area until May 1, .1992, when all owners of any .portion of the Property shall convene at a meeting called by Carstens at a time and place set oh~f i~ a .written notice to each of thee.. oc~~z^r ; r The written notice shall be sent no later than April 15, 1992 to .the best available address known to Carstens for each owner. Notice shall be sent by regular mail, postage prepaid. At the first annual meeting, the owners of the Property at that time shall elect a designated representative (the- "presiding officer") to be responsible for periodic inspection, oversight and review of the condition of the easement and the fence area described below. The owners group attending the meeting is called the "Committee" herein. All obligations, rights, benefits or duties of the Owners described in this agreement shall become a responsibility, right, benefit cr duty of the Committee.immediately fol~.owing the first annual meeting. Each year thereafter, the presiding officer of the Committee selected to provide inspection, oversight and review shall be responsible for calling and convening. the annual meeting.. In the event May 1 of any year falls on a holiday., the presiding ROAD BASSNSNP DBCLARATION AND MAINTSNANCB AGRBEMBNTtHAYOCARSTBNStia Pege 3 oP ZO Peges officer of the Committee shall have the authority to designate the next business day as the date of the meeting. .The presiding officer may call and convene a special meeting of the Committee at any reasonable time after fifteen (15) days written notice to all Committee members-for the purpose of proposing special assessments when necessary to resolve any repair or maintenance requirement of the easement or fence area. 5. Membership on the Committee is automatically 'granted to any .owner of any portion of the Property. An transfer of title by any owner to a new owner, the membership on the Committee of the tr~n~z"c°rng owner shall automatically ~-^~ce: amd each new owner will become. a member of the. Committee. 6. Voting shall be conducted not according to percentage of acreage within the Property, but each owner, regardless of tract size, shall be entitled to one (1) vote. Any action taken by the Committee shall be deemed approved if fifty percent (50'%) or more of the owners present. and voting at any annual or special meeting of the Committee vote in favor of a proposition presented for vote to the Committee . 7. The powers of the Committee shall include., but are not limited to, the following: A. The power to establish, fix and levy assessments on an annual basis, and at special called meetings of the Committee, for special .assessments. B. The. power of waive any annual assessment in the Committee's sole discretion. RDAD SASENBNT DECLARATION AND NAINTBNANCB AGRESNBNT:MAY:CARSTBNS:2a Pnge 4 oP 10 Pages C. The power to adopt reasonable rules of use of the easement. D. The power to delegate its authority,. duties and responsibilities to the presiding officer or to third party agents, contractors or employees for the purpose.of carrying out the functions of the Committee.. E. The power to remove any presiding officer of the Committee or to elect any replacement or substitute presiding officer from time to time after May 1, 1992. F. To keep. and maintain bank accounts for a maintenance fund for the easement andthefence area, and to retain such legal and accounting services as necessary or proper to carry out the functions and duties of the Committee. G. To obtain such policies of general liability insurance as the. Committee might, from time to time deem necessary, prudent or advisable. H. To keep accurate .minutes of all Committee meetings and accurate books of account for inspection by any owner at any reasonable. time, and to designate any Committee member to serve as secretary or treasurer for such purposes. The presiding officer may also serve as secretary or treasurer of the Committee. 8. Each owner of any ..portion of .the Property shall. be obligated to pay the sum of ONE HUNDRED AND NO/100 DOLLARS ($100.0.0) per year as an annual assessment for the purpose of repair .and maintenance of the easement and the fence area. Each ROAD 8AS8NBN3' DSCI'.ARATION AND NAINTSNANCH AGRSBNHNT:MAY:CARSTHNS:2e Page 5 of IO Pnges ,, ~~5 _ HU. owner shall additionally be obligated to pay any special assessments which may be determined as necessary by the Committee. No single special assessment shall exceed $500.00 per owner. No more than one special assessment shall be made during any twelve month period. Annual assessments shall be due and payable on or before May 1 of each year. Special assessments shall. be due and payable. on or before thirty (30) days from the date of any assessment. Any owner who has not paid an annual assessment in full shall not be entitled to vote at an annual-or special called meeting, but shall be able to .attend and participate in'the Committee- di.scu~si c~*?s. Interes~~ s'"a' l accrue pan unpaid asse~sm~nts from thirty ( 30 ) days after it is due until paid at the rate of eighteen percent (18%) per annum. 9. In the event any owner has not paid an annual or special assessment., a lien shall be created against any defaulting owner's share of the Property in the 'following manner: A. Notice shall be given by the presiding .officer of the Committee that payment of the assessment is delinquent by one (1) or more days, and that if the delinquency is not cured on or before thirty (30) days from the date of the letter, that an affidavit of lien shall be filed of record in the County Clerk's office in Brazos County, Texas. B. If the delinquency. is not cured as stated above, the presiding officer of the Committee shall have the authority and duty to sign an affidavit stating that an ROAD EASEMENT DECLARATION AND MAINTENANCE AGREEMENT: MAY:CARSTBNS:Za Page 6 of 10 Pnges owner of a portion of the Property has defaulted in the payment of an annual or special assessment, and that. the Committee has a Tien against the Property of .the defaulting owner. The affidavit shall describe the defaulting owner's property, the amount of the. assessment which is delinquent, and the date that it was due. The affidavit-shall further state that the Committee is entitled. to foreclose its lien by non-judicial foreclosure sale, following the terms and provisions of Article S ~ ~ ~C~ of the .Texas Property Code . C. The Committ~~ mk~r direct the presiding officer of t,?'ic Committee to initiate and conduct the foreclosure of the assessment lien, serving as the trustee of the Committee. The presiding officer of the Committee shall be entitled to execute a foreclosure sale deed on behalf, of the Committee, conveying title to the highest bidder at the foreclosure sale. 10. Any assessment lien created by virtue of default by an owner of any portion of the Property. shall be junior and inferior to a purchase money: lien or a home improvement lien created by any such. defaulting owner, but .shall not be junior and inferior to any liens created aftEr the date of filing of the assessment lien.' 11. The Owners hereby warrant that beneficiaries under deeds of trusts to all or any portion of the Property shall be entitled to request from Carstens (until May 1, 1992) or from the presiding officer of the Committee (after May 1, 1992) written notification ROAD SASSIYBNT DSCIJIRATION AND NRINTSNANCS AGRESMSNT:NAY:CARSTSNS:2a Page 7 oP 10 Pages from the Committee of 'any default in the performance by the grantor of the deed of trust of any obligation created by this document, at the same time as notice of such default is given to the grantor of the deed. of trust. 12. Any beneficiary under a deed of trust who obtains title to a portion of the Property. shall -not: be liable for any unpaid assessments which accrue prior to the acquisition of title to the Property by the beneficiary'of the deed of trust. 13. The Owners, or the,.Committee, shall ..have the right to use so much of the surface of the Property as may be reasonably necessar~~ }^ rwoair and maintain the easement or-fenco area from time to time. Upon the completion of any such. repair and maintenance, the Owners or the Committee shall replace and restore all fences, walls or other .structures which may have been relocated or removed during the repair and maintenance. period, and the Owners or the Committee shall pay the.. owner of any portion of the Property which had fences, walls or structures removed that are not capable of being replaced, and shall pay such owner for vegetation and crops that may have been damaged or destroyed during the repair and maintenance period. The Owners or the Committee shall have the right to cut and .trim. trees or shrubbery which may encroach upon the easemen~~ or fence area. 14. The liability of any owner of any portion of the Property for performance of any of the provisions of this Declaration and Agreement shall terminate on sale, transfer, assignment or other divestment of that owner's interest in the Property with respect to ROAD BASSMBNl DECLARATION. AND MALNTBNANCB AGRBEMBNT:MAY.:CARSI'BNS:ia Pnge B OP 10 Pnges VO,. ~i_r~! ~ ~ Pr~ ~ ~~V obligations arising from and after the date of such .divestment, but any .default, obligation or .lien existing at the time of sale, transfer, assignment or other divestment shall constitute a cloud or encumbrance upon the interest of the defaulting owner, and such liability shall continue for the defaulting owner. ..Additionally, the lien shall be a burden :upon the estate acquired by the new owner. until discharged, paid-or performed. 15. This Declaration may only be amended by vote at a meeting of the Committee at which the amendment-is approved by at least seventy percent (70%) of the owners of portions of the Property. ~6. E'ach rem€~dy or provi,sian provided .in th~.s .document is separate,; distinct and non-exclusive. Failure to observe or exercise any particular provision hereof shall not be construed'. as a waiver of any other provision, or of the right to .observe and enforce such ,provision at a later time. 17. The provisions of this document' shall be deemed independent and severable, and the invalidity or unenforceability of any one provision shall. not affect the validity 'or enforceability of any other', provision. ..This Declaration and Agreement, as well as any amendment thereto and any valid action or directive made pursuant to it shall be binding on the Owners and their heirs, grantees, tenants,. successors and assigns. 18. Any new owner acquiring an ownership of .all or any portion of the Property shall be required to sign the agreement which is attached hereto as Exhibit "B", and after signing the agreement at the time of delivery of the deed to the portion of the ROAD SASBNENP DECLARATION AND NAINTENANCS AGRSENENT:NAY:CARSTSNS:2a Page 9 oP YO Pages Property 'being acquired by the new owner, it shall be the obligation of the seller of such property to deliver the signed agreement to Carstens (until May 1, 1992) or the presiding officer of the Committee (after .May. 1, 1992). IN WITNESS WHEREOF, the .undersigned have .executed this document on the date stated above.. Gordon E. Carstens is acted for herein by Rhonda Kay Miller, his .attorney in fact. GORDON E. CARSTENS STATE OF TEXAS. COUNTY OF BRAZOS T is instrument .was acknowledged before me on the '"day of 1991, by Rhonda Kay Miller, attorney in fact for GORDON E. CARSTENS. ~ - ~ ~ t! r ~, ~':;~ ~~~ c~~,riss!cn ~x~,,~tbn,~~. try Public., State: of Texas 4 -.,,, :5 c ,e C: STATE OF TEXAS COUNTY OF BRAZOS `LD`.1 T}~is instrument was acknowledged before me on the- ~t~ day of ~x!.t a ,,..,~ , 19 91, by ROBERT J . MAY . t~ ~ „,,h~~-~~ ~ ~~~~~~p~~~~ ~;' Notary Public, St to of Texas r •: ~r , T~_ ''''''~ i 'tr 0: ~"l° A'P y iD~a :~ ROM 6ASBMBNT DBCLARATION AND MA7NTBNANCB AGRBENBIPT: NAY: CAFSTBNS:Ia Pnge IO of IO Pages VOA ~~~ ~ ~~~~ ~JO EXHIBIT nBn AGREEMENT I, or each of us, the undersigned, hereby declare and agree that we have received a copy of the .Road Easement Declaration and Maintenance Agreement pertaining to title to property. which we have. acquired. The undersigned has read and understood the Declaration and Agreement and agrees to be bound by all of its terms and provisions, and to pay and perform such obligations that might be created therein, with interest at the rate of eighteen percent (18% ) per annum as provided therein .. The unders:,grxc~ ~ ,crew', that the Declaration and Agreement creates certain benefits to our ownership of a portion of the property covered by the Declaration and Agreement and we accept those benefits, as well as the obligations and responsibilities created by the Declaration and Agreement. This agreement is binding upon and shall inure to the benefit of us and our. heirs, successors, legal representatives and assigns. DATED the: day of , 19 if A~ ~ ~~ f~ n~rr /~{-l RAZ'IFICA~'dON A1~'D EXECUTION OF PLAT I. PATRICIA ANN RAGLANO, forTnerl hereby execute, ratify and .confirm the final p at, Timber Fo~C~ R- MONSON, do acre tract in the James Hope Survey, A-22, Brazos Count rest Estates, a 30.889 Y. Texas, as follows: I - I am the owner of the tract or of'I4mber Forest Estates as Lot 3-$, parcel. of land shown on the final plat and made a part hereof. A cOPY of such final plat is attached hereto 2- Because I am not resident of Brazos Coun execution of the final plat by me is not practical. Thery~ Texas at this time, ratifying, and confirmsng the plat by this document. efore, T am executing, 3- For good and .valuable consideration, I hereb Confirm .the final plat, Timber Foresf Estates, as full y execute, have etecuted the final plat itself, and I hereby dedica and completely as I would of way shown on said plat to the use of the public forevel easements and rights r. 4• This ratification of plat is bindin repz'esentatives and assigns, forever. g upon me and m y heirs, 1egal Dated this /~'t~ da of /}~~ •/ ~r Y /V.~~r°L~.l~~~, I99~ State of Texas County of -~s PATRICIA ANN RAGLAND This instrument was acknowledged before me on the /~da by PATRICIA ANN' RAGLAIVD, z y of -.~~ - , ~~/YI j Notary Public, State of Texas .~ ~ GLOliIA S. PENH n °~` Pub!!c, State of Ta a MY Wmmt~t~ xss ''cos ee~'° JULY 7 t;("~DIr®e REIRAGLAND_REP _ ~^