AMENDED TERLINGUA RANCH MAINTENANCE ASSOCIATION AGREEMENT
THE STATE OF TEXAS
COUNTY OF BREWSTER
WHEREAS, Great Western Corporation, a Texas corporation, was the owner of certain land situated in Brewster County Texas, and established the Terlingua Ranch Maintenance Association under the terms and conditions set forth in the Terlingua Ranch Maintenance Association agreement (the “TRMA”) recorded in Volume 173, Page 213, Property Records, Brewster County, Texas; and
WHEREAS, the Property Owners Association of Terlingua Ranch, Inc. (“POATRI”) is the successor to Great Western Corporation as Administrator of that agreement and the maintenance fund created by that agreement as described in that certain RESIGNATION AND DESIGNATION OF CUSTODIAN AND ADMINISTRATOR dated November 30, 1976 from Terramar Corporation, a Texas Corporation, formerly known as Great Western Investment Corporation and Great Western Corporation to Property Owners Association of Terlingua Ranch, Inc. (“POATRI”) recorded in Volume 198 Page 721, Property Records, Brewster County, Texas; and
WHEREAS, the members of POATRI desire to amend the TRMA;
NOW, THEREFORE, the TRMA is amended and superseded as follows:
DEFINITIONS
1. The term "Developer" shall mean Great Western Corporation and/or Terramar Corporation.
2. The term "Terlingua Ranch" shall mean the property described on the attached Exhibit "A", together with any additional property which Developer or its successors may have added to the terms of this agreement as hereinafter provided and as recorded in the property records of Brewster County, Texas.
3. The term "Subject Property" shall mean the property described on the attached Exhibit "B", together with any additional property which Developer or its successors may have added to the terms of this agreement as hereinafter provided and as recorded in the property records of Brewster County, Texas.
4. The term "Maintenance Association" shall mean the Terlingua Ranch Maintenance Association created by this instrument.
5. The term "Maintenance Fund" shall mean the assessments collected from Tract Owners by the Maintenance Association.
6. The terms "Tract" or "Tracts" shall mean real property, regardless of size or contiguity, under fee simple ownership of an “Owner”, as hereinafter defined, out of the Property known as Terlingua Ranch as described in Exhibit A together with any additional property which Developer may have added to the terms of this agreement as hereinafter provided and as recorded in the property records of Brewster County, Texas, conveyed by Developer to third parties by deed or sold to third parties by Developer under a contract for deed.
7. The terms "Administrator" shall mean POATRI (or its designated successor as provided herein) as manager of the Maintenance Association and Maintenance Fund.
8. The term “Exempt Member” shall mean Owners of Tracts on Terlingua Ranch which are exempt from annual maintenance assessments pursuant to Exhibit “B” and/or pursuant to a recorded deed from the Developer and who do not own non-exemptTracts in Terlingua Ranch, save and except those Tracts whose exempt status has been relinquished by the record title Owner, or by the Developer, and as recorded in the property records of Brewster County, Texas. An Exempt Member is a Member in Good Standing (“MIGS”) as defined in POATRI’s Bylaws and shall enjoy the same rights and privileges all MIGS in POATRI enjoy, except as may be specified herein.
9. The term “Board of Directors” or “Board” shall mean the duly elected board of directors of Property Owners Association of Terlingua Ranch, Inc., (“POATRI”) a Texas non-profit corporation.
10. The term “Owner” shall mean and refer to the record owner, whether one or more persons or entities, of the fee simple title to any Tract.
11. The term “POATRI Governing Documents” means the POATRI Articles of Incorporation, the TRMA, POATRI Bylaws, and/or POATRI Policies and Procedures as applicable.
I.
In order to assure an adequate reserve in the Maintenance Fund, effective November 1, 2007, an annual assessment of $245.00 per Owner is hereby imposed upon each Tract (as herein defined) within the Subject Property. Exempt Members shall not be assessed. On the first day of November of each year thereafter, an annual cost of living adjustment equal to the consumer price index (“CPI”) will be added to the annual assessment amount of the previous year. Each assessment shall be computed annually on or about the first day of December and paid by each Tract Owner to the Administrator of the Maintenance Fund on or before the 31st day of March each year. So long as POATRI remains the Administrator of the Maintenance Fund, the Board of Directors may increase the annual assessment in an amount not to exceed 10% of the prior year’s assessment, inclusive of any annual cost of living adjustment as herein provided, however, the cumulative increases to annual assessments, whether as a result of the annual CPI increase and/or Board approved increase, cannot exceed 25% over any five (5) consecutive year period. Any increases to the annual assessments authorized herein which are not implemented during the applicable calendar year, cannot be accumulated for use in any subsequent year.
II.
Administrator shall act as the custodian of said Maintenance Fund, and it shall have the right to collect, hold and expend any and all monies paid or to be paid into said Maintenance Fund to carry out the provisions hereof. Administrator may charge reasonable and as allowed by law interest, partial payment fees, late payment fees and/or service fees. Administrator shall not be liable or responsible to any person or persons whomsoever for failure or inability to collect such assessments or any part thereof from any person or entity.
III.
Administrator shall have the right at any time to reduce or waive said assessments as in its judgment the maintenance needs of Terlingua Ranch may require. Any such reduction or waiver shall be applied pro rata as to all Tracts assessed an annual assessment. Moreover, Administrator shall have the right at any time to abandon such assessments without incurring liability to any person whomsoever by filing a written instrument in the Office of the County Clerk of Brewster County, Texas, declaring such discontinuance and abandonment. At any time, the Members in Good Standing of the Property Owners Association of Terlingua Ranch, Inc., a Texas nonprofit corporation, whose property on Terlingua Ranch is covered by this agreement, may authorize POATRI to transfer the obligations as Administrator in an election by mail by a two-thirds majority of the votes cast, which election must be duly called by the Board of Directors. If at least two-thirds of the votes cast, with at least 10% of the Members in Good Standing voting, have been cast in favor of transferring said obligations, POATRI shall have the right to transfer the obligations as Administrator of the Maintenance Association and Maintenance Fund to a non-profit corporation or to any other entity or party to succeed it as Administrator of such Maintenance Association and Maintenance Fund by filing a written instrument in the Office of the County Clerk of Brewster County, Texas, and after such transfer POATRI shall have no further liability or obligation with respect to the Maintenance Association and Maintenance Fund.
IV.
The Maintenance Fund shall be used by Administrator for the common good and benefit of Owners of Terlingua Ranch without regard to whether or not assessments are collected from the benefited portion of Terlingua Ranch. Administrator may use the Maintenance Fund for the following general purposes:
A. For developing, improving or maintaining safety and/or health projects for Terlingua Ranch;
B. For developing, improving and maintaining any and all recreational or other areas which Owners of Tracts in the Property known as Terlingua Ranch as described in Exhibit A together with any additional property which Developer may have added to the terms of this agreement as hereinafter provided and as recorded in the property records of Brewster County, Texas, may be privileged to have the right to use, solely or in conjunction with others, in Terlingua Ranch including, but not limited to, hunting parks (including game feeding, stocking, water well and water storage installations and maintenance) and/or a hunting lodge facility, if any, available for use by Owners of Terlingua Ranch;
C. For improving and maintaining roads located within Terlingua Ranch;
D. For improving, maintaining and operating that property owned by POATRI as deeded from Terramar Corporation, Volume 198, Page 714, Brewster County Deed Records, Brewster County, Texas, and any subsequent property purchased by POATRI for the benefit of its membership.; and
E. For all other purposes which Administrator may consider to be of general benefit or useful to the Owners of Terlingua Ranch.
V.
It is agreed and understood that the judgment of the Administrator, or its successors as custodian and administrator of said Maintenance Fund, in the expenditure of the Maintenance Fund shall, when done in good faith, be binding, final and conclusive on all parties in interest.
VI.
Administrator and its successors shall not be entitled to any compensation for acting as Administrator of the said Maintenance Association and Maintenance Fund.
VII.
The payment of an annual assessment and/or Special Income Assessment by each Tract Owner shall be secured by an express lien retained by the Administrator, which lien is placed and imposed on each Tract subject to the assessment. Such lien may be foreclosed in the same manner as a vendor’s lien under the laws of Texas, without prejudice, however, to any other rights, powers, or causes of action which the holder of said lien may have against any party who is then or who has theretofore been the Owner of any Tract affected thereby. Said lien shall be secondary, subordinate and inferior to all prior recorded liens and deeds of trust given to secure the purchase price of the Tract, or any part thereof, or any prior recorded liens given to any bank, savings and loan association, insurance company, trust company, fraternal benefit organization or corporation with banking related powers, credit union or other lending institutions or other party lawfully lending money for the purpose of making repairs or for constructing improvements whatsoever on any Tract, or acquiring any note or other evidence of indebtedness previously made for any such purposes. If any such lender or party acquiring such indebtedness should be in doubt as to the purpose for which such loan was made or indebtedness incurred, or as to whether the lien herein granted is subordinate to any lien or deed of trust given for the purpose of securing any such mortgage or indebtedness, such lender or party acquiring such indebtedness may rely conclusively upon the written statement of Administrator with respect thereto. Administrator may release or subordinate said lien in whole or in part with respect to any Tract should it deem it advisable for any reason whatsoever without affecting said lien insofar as it applies to any other Tracts. No amendment to or termination of this agreement shall be construed to operate as a waiver, release, or termination of any lien already in existence or created by any prior version of this agreement.
VIII.
All rights of Administrator set forth herein shall inure to the successor of POATRI, its successors or assigns, as Administrator of the Maintenance Association and Maintenance Fund except as provided herein.
IX.
The provisions of the agreement shall continue and be binding upon Administrator, its successors and assigns, and each Tract Owner, their heirs, personal representatives, successors and assigns, for a period of 20 years from November 1, 2007. At the expiration of said 20 year period the provisions herein set out shall automatically be extended for an additional 10-year period and for successive periods of 10 years unless an instrument signed and acknowledged by the Owners of the legal title to 51% of the Subject Property (as shown by the Deed Records of Brewster County, Texas) agreeing to terminate this agreement is filed in the Office of the County Clerk of Brewster County, Texas, except that as long as Property Owners Association of Terlingua Ranch, Inc. remains the Administrator of the Maintenance Fund, 51% of all the Members in Good Standing of the Association will be required to agree to terminate this agreement, at which time the Board of Directors of the Association will file an instrument on behalf of the Members of the Association in the Office of the County clerk of Brewster County, Texas, agreeing to terminate this agreement.
X.
At any time, the Members in Good Standing of the Property Owners Association of Terlingua Ranch, Inc., a Texas nonprofit corporation, whose property on Terlingua Ranch is covered by this agreement, may amend this agreement in an election by mail by a two-thirds majority of the votes cast, which election must be duly called by the Board of Directors, provided however, that Exempt Members shall not be permitted to vote on any amendment to increase or decrease annual assessments and/or to increase or decrease special income assessments. Any vote cast by an Exempt Member with respect to such an amendment to increase or decrease annual assessments and/or special income assessments shall be considered a nullity and shall not be counted as a vote cast. The deadline for submitting ballots in an election by mail shall not be less than 45 days from the time the ballots are mailed to the members. If at least two-thirds of the votes cast, with at least 10% of the Members in Good Standing voting, have been cast in favor of an amendment, the amendment shall become a part of this agreement. After such vote, such amendment shall be effective upon the filing by a duly authorized officer of the Association of the sworn instrument containing such amendment in the office of the County Clerk of Brewster County, Texas.
XI.
Only as long as POATRI remains the Administrator of the Maintenance Association and Maintenance Fund, the Administrator may assess a Special Income Assessment which shall be made applicable to all Owners who are not Exempt Members. The Board of Directors may not levy a Special Income Assessment that is more than 20% of the annual POATRI assessment for the preceding year. Such Special Income Assessment shall be levied on all members who are not Exempt Members and collected, including reasonable and as allowed by lawinterest, partial payment fees, late payment fees and/or service fees, as may be determined by the Board. The maximum Special Income Assessment which may be assessed singularly or in the aggregate, if more than one in any calendar year, cannot exceed the limit set herein.
These limitations shall not apply to a charge levied against an Owner to reimburse POATRI for funds expended in order to bring the owner into compliance with the provisions of POATRI’s Governing Documents.
Special Income Assessments shall be made in accordance with the following: If the Board determines that the amount to be collected pursuant to the Maintenance Association will be inadequate to defray POATRI’s approved budgeted expenses for the year because of the unexpected cost of any construction, repairs, and/or replacement of POATRI capital improvements, the Board may make a Special Income Assessment for the additional amount needed, not to exceed the limit set herein.
XII.
All owners of property on Terlingua Ranch shall be assigns, as that term is known at law, for purposes of an easement of ingress and egress as held by Administrator as described in that certain ASSIGNMENT OF EASEMENTS AND RIGHTS dated November 1, 2006 from Terramar Corporation to Property Owners Association of Terlingua Ranch, Inc. recorded in Volume 207 Page 418, Property Records, Brewster County, Texas.
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