AGREEMENT AND ASSIGNMENT OF RIGHTS. WHEREAS, the following are the recorded Restrictions for MYSTIC SHORES:

Transcription

1 STATE OF TEXAS COUNTY OF COMAL KNOW ALL MEN BY THESE PRESENTS: AGREEMENT AND ASSIGNMENT OF RIGHTS This AGREEMENT AND ASSIGNMENT OF RIGHTS (the "Agreement") is made by and between THE PENINSULA AT MYSTIC SHORES PROPERTY OWNERS ASSOCIATION (hereinafter the "PENINSULA POA") and MYSTIC SHORES PROPERTY OWNERS ASSOCIATION (hereinafter "MSPOA") and entered into on the date as shown below but effective as of April 2, 2009 (the "Effective Date"). This Agreement sets forth the terms and conditions under which the PENINSULA POA and the MSPOA will conduct future business as to the maintenance and welfare of their respective duties covering the Mystic Shores development and The Peninsula at Mystic Shores development. PENINSULA POA and MSPOA may be referred to herein individually as a "Party" or collectively as the "Parties". In consideration of the mutual promises contained in this Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows: WHEREAS, Bluegreen Southwest One, L.P. was the developer of the Mystic Shores development in Comal County, Texas as well as the developer of the Peninsula at Mystic Shores development in Comal County, Texas. As the Developer, Bluegreen Southwest One, L.P. created certain Declaration of Covenants, Conditions and Restrictions (hereinafter generally the "Restrictions") for the respective developments. WHEREAS, the following are the recorded Restrictions for MYSTIC SHORES: MYSTIC SHORES, UNIT ONE, recorded at Clerk's Document No , Official Real Property Records of Comal County, Texas Restrictions, Mystic Shores, Unit One, recorded at Clerk's Document No , Official Real Property Records of Comal County, Second Amendment to Declaration of Covenants Conditions and Restrictions, Mystic Shores, Unit One, recorded at Clerk's Document No , Official Real Property Records of Comal County, Third Amendment to Declaration of Covenants Conditions and Restrictions, Mystic Shores, Unit One, recorded at Clerk's Document No , Official Real Property Records of Comal County,

2 Fourth Amendment to Declaration of Covenants Conditions and Restrictions, Mystic Shores, Unit One, recorded at Clerk's Document No , Official Real Property Records of Comal County, MYSTIC SHORES, UNIT TWO, recorded at Clerk's Document No , Official Real Property Records of Comal County, Texas Restrictions, Mystic Shores, Unit Two, recorded at Clerk's Document No , Official Real Property Records of Comal County, Second Amendment to Declaration of Covenants Conditions and Restrictions, Mystic Shores, Unit Two, recorded at Clerk's Document No , Official Real Property Records of Corral County, MYSTIC SHORES, UNIT THREE, recorded at Clerk's Document No , Official Real Property Records of Corral County, Texas Restrictions, Mystic Shores, Unit Three, recorded at Clerk's Document No , Official Real Property Records of Comal County, Second Amendment to Declaration of Covenants Conditions and Restrictions, Mystic Shores, Unit Three, recorded at Clerk's Document No , Official Real Property Records of Comal County, Third Amendment to Declaration of Covenants Conditions and Restrictions, Mystic Shores, Unit Three, recorded at Clerk's Document No , Official Real Property Records of Comal County, MYSTIC SHORES, UNIT FOUR, recorded at Clerk's Document No , Official Real Property Records of Comal County, Texas MYSTIC SHORES, UNIT SIX, recorded at Clerk's Document No , Official Real Property Records of Comal County, Texas First Supplement to Declaration of Covenants Conditions and Restrictions, Mystic Shores, Unit Six, recorded at Clerk's Document No , Official Real Property Records of Comal County, AGREEMENT AND ASSIGNMENT OF RIGHTS PAGE 2

3 Second Supplement to Declaration of Covenants Conditions and Restrictions, Mystic Shores, Unit Three, recorded at Clerk's Document No , Official Real Property Records of Comal County, MYSTIC SHORES, UNIT SEVEN, recorded at Clerk's Document No , Official Real Property Records of Comal County, Texas MYSTIC SHORES ("The Master Restrictions for Mystic Shores) recorded at Clerk's Document No , Official Real Property Records of Comal County, Texas. Supplement to Declaration of Covenants Conditions & Restrictions, Mystic Shores, recorded at Clerk's Document No , Official Real Property Records of Comal County, Mystic Shores, Unit Eight, recorded under Clerk's Document No , Official Real Property Records of Comal County, Amendment to Supplemental Declaration of Covenants, Conditions and Restrictions, Mystic Shores, Unit Eight, recorded under Clerk's Document No , Official Real Property Records of Corral County, Second Amendment to Supplemental Declaration of Covenants, Conditions and Restrictions, Mystic Shores, Unit Eight, recorded under Clerk's Document No , Official Real Property Records of Corral County, Mystic Shores, Unit Nine, recorded under Clerk's Document No , Official Real Property Records of Corral County, Amendment to Supplemental Declaration of Covenants, Conditions and Restrictions, Mystic Shores, Unit Nine, recorded under Clerk's Document No , Official Real Property Records of Comal County, Mystic Shores, Unit Ten, recorded under Clerk's Document No , Official Real Property Records of Corral County, Corrected Supplemental Declaration of Covenants, Conditions and Restrictions, Mystic Shores, Unit Ten, recorded under Clerk's Document No , Official Real Property Records of Corral County, AGREEMENT AND ASSIGNMENT OF RIGHTS PAGE 3

4 Mystic Shores, Unit Eleven, recorded under Clerk's Document No , Official Real Property Records of Comal County, Corrected Supplemental Declaration of Covenants, Conditions and Restrictions, Mystic Shores, Unit Eleven, recorded under Clerk's Document No , Official Real Property Records of Comal County, Mystic Shores, Unit Twelve, recorded under Clerk's Document No , Official Real Property Records of Comal County, First Amendment to Supplemental Declaration of Covenants, Conditions and Restrictions, Mystic Shores, Unit Twelve, recorded under Clerk's Document No , Official Real Property Records of Corral County, Mystic Shores, Unit Thirteen, recorded under Clerk's Document No , Official Real Property Records of Comal County, Mystic Shores, Unit Fourteen, recorded under Clerk's Document No , Official Real Property Records of Corral County, Mystic Shores, Unit Fifteen, recorded under Clerk's Document No , Official Real Property Records of Comal County, Mystic Shores, Unit Sixteen, recorded under Clerk's Document No , Official Real Property Records of Corral County, Texas Mystic Shores, Unit Seventeen, recorded under Clerk's Document No , Official Real Property Records of Corral County, Texas Mystic Shores, Unit Eighteen, recorded under Clerk's Document No , Official Real Property Records of Corral County, Texas AGREEMENT AND ASSIGNMENT OF RIGHTS PAGE 4

5 Mystic Shores, Unit Nineteen, recorded under Clerk's Document No , Official Real Property Records of Comal County, Texas Mystic Shores, Unit Twenty, recorded under Clerk's Document No , Official Real Property Records of Comal County, Texas Mystic Shores, Unit Twenty-One, recorded under Clerk's Document No , Official Real Property Records of Comal County, First Amendment to Supplemental Declaration of Covenants Conditions and Restrictions, Mystic Shores, Unit Twenty-One, recorded at Clerk's Document No , Official Real Property Records of Comal County, Second Amendment to Supplemental Declaration of Covenants Conditions and Restrictions, Mystic Shores, Unit Twenty-One, recorded at Clerk's Document No , Official Real Property Records of Comal County, Third Amendment to Supplemental Declaration of Covenants Conditions and Restrictions, Mystic Shores, Unit Twenty-One, recorded at Clerk's Document No , Official Real Property Records of Comal County, Fourth Amendment to Supplemental Declaration of Covenants Conditions and Restrictions, Mystic Shores, Unit Twenty-One, recorded at Clerk's Document No , Official Real Property Records of Comal County, WHEREAS, the following are the Restrictions for THE PENINSULA AT MYSTIC SHORES: THE PENINSULA AT MYSTIC SHORES, UNIT ONE, recorded at Clerk's Document No , Official Real Property Records of Comal County, Texas Restrictions, The Peninsula at Mystic Shores, Unit One, recorded at Clerk's Document No , Official Real Property Records of Comal County, MYSTIC SHORES, recorded at Clerk's Document No , Official Real Property Records of Corral County, Texas AGREEMENT AND ASSIGNMENT OF RIGHTS PAGE 5

6 SUPPLEMENTAL DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR PENINSULA AT MYSTIC SHORES, UNIT TWO, recorded at Clerk's Document No , Official Real Property Records of Comal County, Texas Restrictions, The Peninsula at Mystic Shores, Unit Two, recorded at Clerk's Document No , Official Real Property Records of Comal County, SUPPLEMENTAL DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR THE PENINSULA AT MYSTIC SHORES, UNIT THREE, recorded at Clerk's Document No , Official Real Property Records of Comal County, Texas Restrictions, The Peninsula at Mystic Shores, Unit Three, recorded at Clerk's Document No , Official Real Property Records of Comal County, SUPPLEMENTAL DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR THE PENINSULA AT MYSTIC SHORES, UNIT FOUR, recorded at Clerk's Document No , Official Real Property Records of Comal County, Texas WHEREAS, it has been determined that due to the fact that after Mystic Shores, Unit Seven, was platted and Restrictions filed for such unit and after The Peninsula at Mystic Shores, Unit One was platted and Restrictions were filed and recorded that a Master Restriction was created by the Developer/Declarant. After the Master Restrictions for Mystic Shores were filed and recorded lots were sold to third parties under such Master Restriction. Lots in Units Two, Three and Four of the Peninsula at Mystic Shores were designated as "Neighborhoods" under the Master Restrictions for Mystic Shores, but were not annexed into the PENINSULA POA. Due to the lack of annexation, this Agreement is necessary to allow the PENINSULA POA to adequately govern, control, maintain, assess, collect and perform the duties under the Assignment and Transfer documents from the Developer. WHEREAS, it is the intent of all parties hereto, to compromise and provide the intent of the Developer/Declarant to the PENINSULA POA and the MSPOA, which is to allow the PENINSULA POA to govern, maintain, control the Architectural Control Committee, enforce and uphold the Architectural Standards, assess fees and spend assessments as needed within the four (4) units of The Peninsula at Mystic Shores development without the input or control of the MSPOA. The MSPOA shall govern, control, maintain, assess and spend money as needed for the overall development known as Mystic Shores. WHEREAS, pursuant to and in consideration for this Agreement, the PENINSULA POA, as Assignee shall acquire, certain of the MSPOA's, as Assignor's rights, claims and duties associated with the Peninsula at Mystic Shores development located in Comal County, and AGREEMENT AND ASSIGNMENT OF RIGHTS PAGE 6

7 WHEREAS, the Assignors now desire to transfer and assign to Assignee certain of the Assignors' rights, claims, duties and obligations associated with the Peninsula at Mystic Shores, Unit Two, Unit Three, and Unit Four located in Comal County, NOW, THEREFORE, for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00), the mutual promises and obligations contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, MSPOA hereby irrevocably and unconditionally transfer and assign to PENINSULA POA all of the MSPOA's right, title and interest in and to the following: a. All rights, claims, duties and obligations, which the MSPOA has for the assessing of dues specific to the Peninsula at Mystic Shores, Unit Two; Peninsula at Mystic Shores, Unit Three; and Peninsula at Mystic Shores, Unit Four (the assessment of dues that are over and above the MSPOA dues for the overall community of Mystic Shores); b. All rights, claims, duties and obligations, which the MSPOA has for the collecting of dues specific to the Peninsula at Mystic Shores, Unit Two; Peninsula at Mystic Shores, Unit Three; and Peninsula at Mystic Shores, Unit Four (the collection of assessment or dues that are over and above the MSPOA dues for the overall community of Mystic Shores); c. All rights, claims, duties and obligations, which the MSPOA has for the Architectural Control of structures and improvements within the Peninsula at Mystic Shores and specific to the Peninsula at Mystic Shores, Unit Two; Peninsula at Mystic Shores, Unit Three; and Peninsula at Mystic Shores, Unit Four; d. All rights, claims, duties and obligations, which the MSPOA has for the assessing of costs associated with permits or building permits specific to the Peninsula at Mystic Shores, Unit Two; Peninsula at Mystic Shores, Unit Three; and Peninsula at Mystic Shores, Unit Four; e. All rights, claims, duties and obligations, which the MSPOA has for the assessing of fines under the Restrictions specific to the Peninsula at Mystic Shores, Unit Two; Peninsula at Mystic Shores, Unit Three; and Peninsula at Mystic Shores, Unit Four (the assessment of fines that are over and above the MSPOA dues for the overall community of Mystic Shores); f. All rights, claims, duties and obligations, which the MSPOA has for the maintenance and welfare of the Peninsula at Mystic Shores which includes the Private Roads, common areas and Privacy Gates that are specific to the Peninsula at Mystic Shores, Unit Two; Peninsula at Mystic Shores, Unit Three; and Peninsula at Mystic Shores, Unit Four; g. All rights, claims, duties and obligations, which the MSPOA has for the review and upkeep of the Peninsula at Mystic Shores, Unit Two; Peninsula at Mystic Shores, Unit Three; and Peninsula at Mystic Shores, Unit Four; h. All rights, claims, duties and obligations, which the MSPOA has for the right to collect, expend, distribute, consume and manage all maintenance assessments and charges, fines and other funds collected by The PENINSULA POA, to manage the common areas within the Peninsula at Mystic Shores, Unit Two, Peninsula at Mystic Shores, Unit Three, and Peninsula at Mystic Shores, Unit Four, and collect, expend, distribute and consume all fees and assessments in connection therewith, to implement Architectural Control (through a committee appointed by the Board of Directors of the PENINSULA POA) and to enforce all covenants and restrictions, and such being the same rights, obligations and powers as the Developer and/or Declarant under the Restrictions as such pertains to and is limited to the Peninsula at Mystic Shores, Unit Two; Peninsula at Mystic Shores, Unit Three; and Peninsula at Mystic Shores, Unit Four AGREEMENT AND ASSIGNMENT OF RIGHTS PAGE 7

8 No annual, monthly, or daily fees or fees of any kind shall be paid by PENINSULA POA to the MSPOA for this Agreement and the assignment herein. Insurance. a. PENINSULA POA shall carry general liability insurance coverage for bodily injury and property damage in the amount of $ 1,000, as well as Director and Officer Liability Insurance as provided. b. The PENINSULA POA policy shall name the MSPOA as an additional insured and shall provide that it may not be canceled, or the coverage reduced, without 30 days prior written notice to the MSPOA. Indemnification. PENINSULA POA HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS MSPOA AND ITS AGENTS, REPRESENTATIVES, AND EMPLOYEES (COLLECTIVELY, "REPRESENTATIVES') FROM ANY AND ALL LOSSES, COSTS, DAMAGES, CHARGES, LIABILITIES, OBLIGATIONS, FINES, PENALTIES, CLAIMS, DEMANDS, OR JUDGMENTS AND ANY AND ALL EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND EXPENSES, COURT COSTS, AND COSTS OF APPEAL, SETTLEMENT, AND NEGOTIATIONS, EVEN IF THE PARTIES TO BE INDEMNIFIED ARE ALLEGED TO HAVE BEEN NEGLIGENT, ARISING OUT OF OR IN CONNECTION WITH: (1 ) THE TERM OF THIS AGREEMENT (UNLESS SUCH LIABILITIES ARE CAUSED BY MSPOA's INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE); (2) ANY GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF PENINSULA POA OR ANY OF ITS AGENTS, REPRESENTATIVES, AND/OR INVITEES IN CONNECTION WITH THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, OR (3) ANY CLAIM ASSERTED AGAINST MSPOA BECAUSE OF AN ACT OR OMISSION BY PENINSULA POA, UNDER THE TERMS OF THIS AGREEMENT AND ASSIGNMENT. Term. The initial term of this Agreement shall begin on the Effective Date and shall continue for forty (40) years. The Agreement shall automatically renew for an additional forty (40) year period upon each anniversary date, unless terminated by either party in accordance with terms of this Agreement. Termination. Either party, may terminate this Agreement upon the full ratification of the Declaration of Covenants, Conditions and Restrictions for the Peninsula at Mystic Shores, Unit One by each and every lot owner in The Peninsula at Mystic Shores, Unit Two, The Peninsula at Mystic Shores, Unit Three, The Peninsula at Mystic Shores, Unit Four, and thus the full annexation of the lots located within The Peninsula at Mystic Shores, Unit Two, The Peninsula at Mystic Shores, Unit Three, The Peninsula at Mystic Shores, Unit Four into the Peninsula at Mystic Shores Property Owners Association, at which time this Agreement and Assignment shall no longer be required. Place for Performance; Governing Law. This Agreement shall be governed by, and construed in accordance with the laws of the State of Texas and venue shall be proper in Comal County, Texas Authority. Each person signing this Agreement is duly authorized to execute this Agreement on behalf of the corporation or other entity for which he is signing. AGREEMENT AND ASSIGNMENT OF RIGHTS PAGE 8

9 Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Notices. All notices required or permitted to be given under this Agreement shall be in writing. Notices may be (a) hand delivered, for which written receipt shall be obtained, or (b) transmitted by certified United States Mail, return receipt requested, or (c) via telecopier with an additional copy to be sent First Class United States Mail, or (d) express courier service. Notices transmitted by United States Mail or express courier service shall be addressed to the Parties at the following respective addresses (or such other address as may be designated by a party upon written notice of such change of address to the other party), or, if transmitted by telecopier, notices shall be sent to the Parties at their respective telecopier numbers: Agreement of Parties: This Agreement and Assignment contains the entire agreement of the parties and cannot be changed except by their written agreement. By execution of this Agreement, the Parties acknowledge and agree that there are no other prior or contemporaneous representations, agreements or understandings, whether written or oral, between the parties, and that all representations, agreements or understandings, whether written or oral, are hereby merged into this Agreement, and this Agreement is the sole agreement and understanding between the Parties. Modification of Agreement. It is expressly understood and agreed that this Agreement may not be altered, amended, waived, modified, or otherwise changed in any respect or particular whatsoever, except in writing, which writing must be signed by authorized representatives of the Parties. The Parties further acknowledge and agree that they will make no claims at any time or place that this Agreement has been orally supplemented, modified, or altered in any respect whatsoever. Counterparts. This Agreement may be executed in any number of counterparts, all of which, taken together, shall constitute one and the same instrument, and any of the Parties hereto may execute this Agreement by signing any such counterpart. Interpretation. Whenever the context hereof shall so require, the singular shall include the plural, the male gender shall include the female gender, and the neuter, and vice versa. Miscellaneous. This Agreement shall be binding on and inure to the benefit of the Parties and their respective successors and permitted assigns. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their duly authorized officers as set forth below, on the date first set forth above. AGREEMENT AND ASSIGNMENT OF RIGHTS PAGE 9

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11 AFTER RECORDING RETURN TO: The Peninsula at Mystic Shores Property Owners Association 1600 N.E. Loop 410, Suite 202 San Antonio, TX AGREEMENT AND ASSIGNMENT OF RIGHTS PAGE 11