Form 26-39

Road Maintenance Agreement

Date:

Property Owner A:

Mailing Address:

Property:

Property Owner B:

Mailing Address:

Property:

Description of Roadway:

The Parties, whose property is benefited or burdened by the Roadway described above, agree to the following:

1.Property Owner A will pay all expenses of maintenance, repair, and restoration of the Roadway covered by this Agreement.

1.The Parties will share equally in the expenses for normal maintenance and repair of the Roadway. No expense shall be incurred by any Party without consent of the other Party. Such consent shall be in writing and signed by all Parties, with a copy delivered to each Party.

2.The Roadway will be maintained in good, passable condition under all traffic and weather conditions, and in a condition no less than equal to its condition at the time of execu­tion of this Agreement. Maintenance and repair will include snow plowing and drainage facil­ities as well as surface work.

3.If Property Owner A does not perform the required maintenance, Property Owner B, after giving the nonperforming Property Owner A thirty days’ written notice, will have the right to perform the maintenance and receive reimbursement from the nonperforming Prop­erty Owner A.

Reimbursement will be payable on demand and include the costs of the maintenance, plus interest at the highest rate permitted by law (or if no maximum rate is prescribed by law, at the rate of 18 percent per year).

3.The cost for agreed maintenance and repair shall be borne and shared equally by the Parties. In the consent to repair, the Parties shall designate a party to be the agent for con­tracting or undertaking the agreed repair or maintenance and to collect each Party’s share of the cost.

4.If a Party damages or disturbs the surface of the roadway (other than normal auto­mobile and service ingress and egress), that Party is responsible for immediately restoring the road surface to as nearly as possible the condition in which it existed before being disturbed.

5.This Agreement runs with the properties described above and is appurtenant to the land.

6.This Agreement is made by and between Parties who own property benefited/bur­dened by the Roadway. The property for Property Owner A is described within Exhibit A, and the property for Property Owner B is described within Exhibit B. All such Parties shall have the right of access over the Roadway. All property accessed over the Roadway is deemed ben­efited thereby.

7.Attorney’s Fees.      If either Party retains an attorney to enforce this Agreement, the Party prevailing in litigation is entitled to recover reasonable attorney’s fees, other fees, and court and other costs.

8.Binding Effect.         This Agreement binds and inures to the benefit of the Parties and their respective heirs, successors, and permitted assigns.

9.Choice of Law.      This Agreement will be construed under the laws of the state of Texas, without regard to choice-of-law rules of any other jurisdiction. Venue is in the county or counties in which the Properties are located.

10.Waiver of Default.      It is not a waiver of or consent to default if the nondefaulting Party fails to declare immediately a default or delays in taking any action. Pursuit of any rem­edies set forth in this Agreement does not preclude pursuit of other remedies in this Agree­ment or provided by law.

11.Further Assurances.      Each signatory Party agrees to execute and deliver any additional documents and instruments and to perform any additional acts necessary or appro­priate to perform the terms, provisions, and conditions of this Agreement and all transactions contemplated by this Agreement.

12.Integration.      This Agreement contains the complete agreement of the Parties and cannot be varied except by written agreement of the Parties. The Parties agree that there are no oral agreements, representations, or warranties that are not expressly set forth in this Agree­ment.

13.Legal Construction.      If any provision in this Agreement is for any reason unen­forceable, to the extent the unenforceability does not destroy the basis of the bargain among the Parties, the unenforceability will not affect any other provision hereof, and this Agreement will be construed as if the unenforceable provision had never been a part of the Agreement. Whenever context requires, the singular will include the plural and neuter include the mascu­line or feminine gender, and vice versa. Article and section headings in this Agreement are for reference only and are not intended to restrict or define the text of any section. This Agree­ment will not be construed more or less favorably between the Parties by reason of authorship or origin of language.

14.Notices.      Any notice required or permitted under this Agreement must be in writ­ing. Any notice required by this Agreement will be deemed to be delivered (whether actually received or not) when deposited with the United States Postal Service, postage prepaid, certi­fied mail, return receipt requested, and addressed to the intended recipient at the address shown in this Agreement. Notice may also be given by regular mail, personal delivery, courier delivery, facsimile transmission, or other commercially reasonable means and will be effec­tive when actually received. Any address for notice may be changed by written notice deliv­ered as provided herein.

15.Time.      Time is of the essence. Unless otherwise specified, all references to “days” mean calendar days. Business days exclude Saturdays, Sundays, and legal public holi­days. If the date for performance of any obligation falls on a Saturday, Sunday, or legal public holiday, the date for performance will be the next following regular business day.

16.Rights Reserved.      Each Party reserves for that Party and that Party’s heirs, suc­cessors, and assigns the right to continue to use and enjoy the surface of the Properties for all purposes that do not unreasonably interfere with or interrupt the use or enjoyment of the Roadway.

17.Equitable Rights of Enforcement.      This Roadway may be enforced by restraining orders and injunctions (temporary or permanent) prohibiting interference and commanding compliance. Restraining orders and injunctions will be obtainable on proof of the existence of interference or threatened interference, without the necessity of proof of inadequacy of legal remedies or irreparable harm, and will be obtainable only by the Parties to or those benefited by this Agreement, provided, however, that the act of obtaining an injunction or restraining order will not be deemed to be an election of remedies or a waiver of any other rights or rem­edies available at law or in equity.

   
[Name of property owner A]

   
[Name of property owner B]