HomeMy WebLinkAboutResolution No. 05-67
CITY OF THE COLONY, TEXAS
RESOLUTION NO. o5-f.D1
A RESOLUTION OF THE CITY OF THE COLONY, TEXAS,
AUTHORIZING THE MAYOR TO EXECUTE A FACILITIES
REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF
THE COLONY AND WYNNWOOD PENINSULA LTD. FOR A
FACILITIES REIMBURSEMENT CONTRACT FOR
W ASTEWTER IMPROVEMENTS; PROVIDING AN EFFECTIVE
DATE.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF THE COLONY, TEXAS:
Section 1. That the Mayor of the City of The Colony, Texas, is hereby authorized
and empowered to execute a Facilities Reimbursement Agreement with Wynnwood
Peninsula Ltd. for a facilities reimbursement contract for wastewater improvements.
Section 2. That a true and correct copy of the Facilities Reimbursement Agreement
with Wynnwood Peninsula Ltd. is attached hereto and incorporated herein.
Section 3. That this resolution shall take effect immediately from and after its
passage.
PASSED AND APPROVED by the City Council of the City of The Colony,
Texas, this 1st day of August, 2005. .
THE ST ATE OF TEXAS
COUNTY OF DENTON
~
~ FACILITIES REIMBURSMENT
~ AGREEMENT
~
~
This Agreement ("Agreement") is entered into by and between the City of The Colony, a
home rule City and political subdivision of the State of Texas ("the "City"), and Wynnwood
Peninsula, Ltd., a Texas Limited Partnership (the "Developer"), acting by and through their duly
authorized representatives.
RECITALS
WHEREAS, the Developer owns real property comprised of approximately 445 acres
located in what is commonly known as Wynnwood Peninsula, as more particularly described and
included in Exhibit ':A" (the "Property") and located in the city limits of the city of The Colony,
Texas; and
WHEREAS, the Developer and an affiliate, MSW Wynnwood, LLC, are desirous of
subdividing and developing the Property; and
WHEREAS, the Developer is required to construct or cause to be constructed certain
infrastructure improvements consisting of a lift station, force main and related wastewater flow
lines for the conveyance of raw waste water from the Property to the City's existing waste water
treatment plant (the "Project") as depicted in Exhibit "B" which is attached hereto and
incorporated herein; and
WHEREAS, the Developer finds it beneficial to have the City construct the Project on,
and to, the Property; and
WHEREAS, the City desires to construct the Project under the terms and conditions
herein; and
FACILITIES REIMBURSEMENT AGREEMENT - Page 1
75086
WHEREAS, the Developer will reimburse the City for the costs incurred for the
construction of Developer's portion of the Project under the terms and conditions provided
herein.
NOW, THEREFORE, in consideration of the premIses and the mutual covenants
contained herein and other valuable consideration, the sufficiency and receipt of which, are
hereby acknowledged, the City and the Developer agree as follows:
SECTION I
TERM
The term of this Agreement shall commence on the last date of execution of this
Agreement (the "Effective Date") and shall continue until all parties have fully satisfied all terms
and conditions of this Agreement, unless sooner terminated as provided herein.
SECTION 2
SCOPE OF SERVICES
The City agrees to construct the Project under the terms provided herein. The Project is
made up of a force main wastewater system consisting of a connection to The Colony Stewart
Creek Wastewater Treatment facility with an ultimate 5.0 MGD capacity, a wastewater lift
station of the same ultimate capacity, and other associated improvements, including site
preparation and associated costs, as depicted on Exhibit "B", on the Property described in
Exhibit "A" allowing the Developer to utilize 3.4 MGD of ultimate capacity for developed
property on Wynnwood Peninsula.
SECTION 3
COMPENSATION
(A) Developer agrees to reimburse the City in an amount equal to sixty-eight percent
(68%) of the total actual costs to construct the Project, estimated to be three million dollars
($3,000,000), as described herein in accordance with the respective contracts let by the City
FACILITIES REIMBURSEMENT AGREEMENT - Page 2
75086
Council in compliance with State law. Payment hereunder shall be made to City on a periodic
basis within thirty (30) days of Developer receiving an invoice for construction, each invoice
clearly denoting Developer's sixty-eight percent (68%) pro-rata share, herein pursuant to a
contract for construction. The City has the right to postpone and/or stop the construction of the
Project due to lack of payment from the Developer; and, associated increase costs or
remobilization costs associated with the Developers failure to make timely payment shall be
charged to the Developer.
(B) If the Scope of Services changes so that additional construction and/or services
are needed, the City will notify Developer for Developer's approval before proceeding. Nothing
contained herein shall be construed to prohibit additional construction and/or services but prior
notice and approval shall be required for reimbursement under this Agreement.
(C) As security for the payment of Developer's portion of the costs associated with
the construction set forth herein between the Developer and City, Developer shall execute a
Deed of Trust in favor of the City naming the City Attorney as Trustee, encumbering the real
property described in Exhibit "C", which is attached hereto (the "Security Property"). Such
Deed of Trust shall provide for the release of the lien thereof on the portions of the Security
Property as payments are made by the Developer to the City pursuant to this Agreement. Upon
payment in the aggregate amount of three million dollars ($3,000,000.00), or such other sum as
the parties may approve, the lien of the Deed of Trust on all of the Security Property shall be
released.
SECTION 4
TERMINATION
This Agreement may be terminated only by the mutual written agreement of the parties.
Each party may terminate this Agreement if the other party breaches any of the terms and
FACILITIES REIMBURSEMENT AGREEMENT - Page 3
75086
conditions of this Agreement, and such breach is not cured by such party within thirty (30) days
after receipt of notice thereof.
SECTION 5
INDEMNIFICATION HOLD HARMLESS
City does hereby release, indemnify and hold harmless the Developer, its officers, agents,
employees, contractors, subcontractors and consultants from any and all claims, damages, causes
of action of any kind or whatsoever, statutory or otherwise, personal injury (including death),
property damage and lawsuits and judgments, including court costs, expenses and attorneys fees,
and all other expenses arising directly or indirectly from the performance of this Agreement. The
foregoing release and indemnity shall survive termination of this Agreement.
SECTION 6
NOTICES
All notices required by this Agreement shall be in writing and addressed to the following,
or such other party or addresses either party designates in writing, by certified mail, postage paid
or by hand delivery.
If intended for Developer:
With a COPy to:
Wynnwood Peninsula, Ltd.
c/o Matthews Southwest, Developments.,
1660 S. Stemmons Frwy. Ste. 280
Lewisville, Texas 75067
Attn: John H. "Jack" Matthews
Kristian Teleki
Mr. John Stenger
J enkens & Gilchrist
1445 Ross Ave. Ste. 3200
Dallas, Texas 75202
If intended for City:
With a copy to:
City of The Colony
Attn: Dale Cheatham
City Manager
6800 Main St.
The Colony, Texas 75056
Robert E. Hager
City Attorney
Nichols, Jackson, Dillard,
Hager & Smith, L.L.P.
1800 Lincoln Plaza
500 N. Akard
Dallas, Texas 75201
F ACILlTIES REIMBURSEMENT AGREEMENT - Page 4
75086
SECTION 7
MISCELLANEOUS
7.1 Entire A2:reement. This Agreement and its attachments constitute the sole and only
Agreement between the parties and supersedes any prior understandings written or oral
agreements between the parties with respect to this subject matter.
7.2 Assi2:nment. Developer may not assign this Agreement without the prior written
consent of City, provided, however, the prior written consent of City shall not be required in
connection with an assignment to an entity owned or controlled, directly or indirectly, by, or
under common control with Developer. In the event of assignment by Developer to which the
City has consented, the Assignee shall agree in writing with the City to personally assume,
perform and be bound by all the covenants, and obligations contained in this Agreement.
7.3 Successors and Assi2:ns. Subject to the provisions regarding assignment, this
Agreement shall be binding on and inure to the benefit of the parties to it and their respective
heirs, executors, administrators, legal representatives, successors and assigns.
7.4 Governin2: Law. This Agreement shall be governed by the laws of the State of
Texas; and venue for any action concerning this Agreement shall be in Denton County, Texas.
7.5 Amendments. This Agreement may be amended by the mutual written agreement of
the parties.
7.6 Severability. In the event anyone 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 effect any other provisions, and the
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never
been contained in it.
FACILITIES REIMBURSEMENT AGREEMENT - Page 5
75086
7.7 Headint,!s. The headings of this Agreement are for the convenience of reference only
and shall not affect in any manner any of the terms and conditions hereof.
7.8 Exhibits. All exhibits to this Agreement are incorporated herein by reference for all
purposes wherever reference is made to the same..
EXECUTED in dnplicate originals this the /!;(dayof ~
Wynnwood Peninsula, Ltd. a
Texas Limited Partnership
By its sole general partner
Matthews Investments Southwest, Inc. XV
A Texas Corporation
~ame:~~
e:~~
---------
,2005.
City of The Colony
By:
Approved as to Form:
FACILITIES REIMBURSEMENT AGREEMENT - Page 6
Attest:
BY/} J~/J- LJ~
~stie Wilson
City Secretary
75086
ACKNOWLEDGEMENT
STATE OF TEXAS ~
~
COUNTY OF DENTON ~
This instrument was acknowledged before me on the I ~ay of August, 2005, by.Jeflfl.
~ ..Dillmd, Ma.Jur of the City~The Colony, a Texas municipality, on behalf of said municipality,
~ I ~ +>rt;;":\~ ,_
C~~" k L1l~
Notary Public, State of Texas
My Commission Expires: II--;{;; -0 S
~oe.
~~
,'''''''' 1.'\ I)
lit:i;}?;;':. CHRI~l~Ifl.l:u WILSor~
~;, {" ~.1;'E Notary Public, State of Texas
",;,;~''''~~+'',,, My Commission Expires 11-22-{)5
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ACKNOWLEDGEMENT
STATE OF TEXAS ~
~
COUNTY OF DENTON ~
h's 'st nt ac~}>;vJ~dj~q}1efore me on the ~ day of August 2005, by
, ~rof Wynnwood Peninsula, Ltd., a Texas Limited
ership by its so e general partner Matthews Southwest, Inc. on behalf of said partnershi .
(Seal)
My Commission Expires:
''''';\'~::'''' "EBECCA J. "EED
.l'''~''....;t:~'' Ill;
1." ','l'o~ Notary Public, State of Texas
3 : : i
~...;-. .....$ My Commission Expires
~,:,/;,;,\"~.l' July 02. 2008
~'''fn''\\~
FACILITIES REIMBURSEMENT AGREEMENT - Page 7
75086
"-"
EXIPBIT A "
LEGAL DESC"RIPTION
TRACf A:
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BEING A 605.795 ACRE TRACT OF LAND SITUA.TED IN TIlE T. LUCKETT SURVEY,
ABSTRACT NO.752, BBB & CCR SURVEY. ABSTRAq NO." 182, AND 11IE S. PAYTON
SURVEY. Al3S1RACT NO. 1009, IN TIlE CITY OF THE COLONY. DENTON. COUNTY,
TEXAS. Al'ID BEING ALL OF TRACf 2, A CALf .ED 324.084 ACRE TRACf OF LAND
CONVEYED TO WYNNWOOD PENINSULA, L m., BY DEED RECORDED IN COUNlY
CLERKS FILE 93-R004882 1 , A 56.S8~ ACRE TMCT OF LAND CONVEYED-TO
~ WYNNWOOD PENINSULA, L ro. BY DEED RECORDED IN COUNTY CLERKS FILB NO
93-R0087901, A 40.535 ACRE TRACT OF LAND CONVEYED BY DEED TO
WYNNWOOD PENINSULA, L Tn. RECORDED IN COUNlY CLERKS FILE NO. 9~
ROO89415, A 40.000 ACRE TRACT OF LAND CONVEYED TO WYNNWOOD
PENINSULA. LID. BY DEED RECORDED m COUNTY CLERKS FILE NO. 95-0076009, A
42.000 ACRE TRAcr OF LAND CONVEYED TO WYNNWOOD PENINSULA. LTD. BY
DEED RECORDED IN COUNTY CLERKS FlLE NO. 91-ROO86390, AND TIm
REMAINDER OF A CALLED l82.79 ACRE TRAct OF Ik'ID CONVEYED BY DEED TO
ROBERT~. STRIEF RECORDED IN VOLUME 514, PAGE 604, REAL PROPERTY
RECORDS OF DENTON COUNTY, TEXAS. SAID 605.795 ACRE TRACf OF LAND
BEING MORE P ARTIC1J'"LARL Y DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT CORPS OF ENGINEERS (C.O.E.) MONUMENT NO. C241.;2 FOUND AT
THE SOUTIfWEST CORNER OF SAID 56.584.ACRE WYNNWOOD PENINSuLA. LTD.
TRACT;
~ THENCE. NORTH 01 DEGREES 26 MINUTES 52 SECONDS EAST. ALONG lHE WEST
LINE OF SAID 56.584 ACRE WYNNWOOD PENINSULA, LTD. TRACT. A DlSTANCE OF
1100.08 FEET TO A 3/4" IRON ROD FOUND. FOR CORNER,
THENCE, NORTH 01 DEGREES 12 MINUTES 56 SECONDS EAST, CONTINUING
ALONG THE WEST LINE OF SAID 56.584 ACRE WYNNWOOD PENINSULA. LID.
TRACt, PASSING nm SOUTHWEST CORNER OF SA,ID 40.535 ACRE TRACf OF LAND
coNVEYEiJ BY DEED AT 49.89 FEET AND CONTINUING IN All ^ TOTAL DISTANCE
OF 865.32 FEET ALONG THE WEST LINB OF SAID 40.535 ACRE TRAct TO A FENCE
CORNER POST FOR THE NORTHWEST CORNER OF SAID 40.535 ACRE TRACf;
THENCE, SOUTH 89 DEGREES 27 MINUfES 31 SECONDS EAST, ALONG THE NORrd
LINE OF SAID 40.535 ACRE WYNNWOOD PENINSULA, L TO. TRACf. A DIST~"'lCE OF
2L41.85 FEET TO A 1/2" IRON ROD fOUND FOR nm NORTHEAST CORNER OF SAID
40.535 ACRE TRAC!', S.A.ro P0INT ALSO BEING TIm MOST WESTERL YNORTHWESl'
CORNER OF TIlE AFORESAID 324.084 ACRE WYNNWOOD PENINSULA, L TO. TRACT;
THENCE, ALONG THE MONUMENT PARTITION LINE BETWEENTRACf AI. EXHIBIT
Page 1 of 11
..;e~
A, AND TRACT BZ, EXHIBIT B, DESCRIBED IN DEED OF P AR1TI10N, RECORDeD IN
VOLUME 2163, PAGE 433, DEED RECORDS, DENTON COUNlY, TEXAS, AND BE1NG
um SAME LINE AS DESCRIBED IN DEED OF SAil) 324.084 ACRE WYNNWOOD
PENINSULA, LTD., TRACf; THE FOLLOWING THREE COURSES AND DISTANCES:
. ,
SOUTH 89 Q.EG~ES"42 M1N1.ITES 25 SECONDS EAST, A DISTANCB OF 1113.32
FEET TO A In"lRON ROD FOUND FOR CORNER;. .
NORTH 00 DEGREES 44 MINUTES I I SECONDS BAST, A DISTANCE OF 2347.37
FEET TO A 112" IRON ROD FOUND FOR CORNER.;
NORTII 53 DEGREES 47 MINUn:S 45 SECONDS EAST, A DISTANCE OF 3532.09
FEET TO A 112" IRON ROD FOUND FOR CORNER IN THE SOUTlILlNE OF
BOYD ROAD ~S}?9SCRIBED IN DEED TO THE COUNTY OF DENTON
RECORDED WVOLUME'400, PAGE 323. DEED RECORDS. DENTON COUNTY,
TEXAS' . . . .
,
THENCE, SOUTH 89 DEGREES 36 MmUrES 23 SECONDS EAST, ALONG SAID SOUTH
LINE OF BOYD ROAD AND THE NORm LINE OF SAID 324.084 ACRE TRACf, A
DISTANCE OF 1160.97 FEET TO A 1/2" IRON ROD FOUND FOR NORTIIEAST CORNER
OF SAID TRACf IN THE WEST LINE OF U.SA. TRACf 0626 OF THE GARZA-LlTILE
ELM RESERVOIR PROJECT (NOW CALLED LAKE LEWlSVlLl.E) CONVEYED BY
DEED RECORDED IN VOLUME 381, PAGE 423, DEED RECORDS, DENTONCOUNfY,
TEXAS; .
TIIENCE, ALONG THE EAST LINE OF SAID 324.084 ACRE TRACT AND U.S.A. TRACf
NO 0-626 THE FOILOWING SIX COURSES AND DISTANCES:
soum 19 DEGREES 20 MINUTES 20 SECONDS EAST, PASSING C.O.E.
MONUMENT NO. 626-7 FOUND AT 27.78 FEET, AND CONTINUING IN ALL A
TOTAL PISTANCE OF 416.72 FEET TO C.O.E. MONUMENT NO. 0626-6 FOUND
FOR CORNER;
soum 00 DEGREES 35 MINUfES 31 SECONDS WEST. A ntsTANcE Of 403.72
FEET TO C.O.E. MO~ NO. 0626-5 FOUND POR CORNBR;
.SOUTH 4S DEGREES 4S"M1NuTES 38 SECONDS WEsT, A DISTANCE OF 2.19.95
FEET TO C.O.E. MONUMENT NO. G626-1 FOUND FOR CORNER;
SOUTIl21 DEGREES 42 MINUTES 53 SECONDS EAST, A DISTANCE OF 504.77
FEET TO C.O.E. MONUMENT NO. 0626-3 FOUND FORCORNBR:
soum 64 DEGREES 44 MINUms 03 SECONDS EAST.. A DISTIu~CE OF 5)').21' ."-
FEET TO C.O.E.: MONUMENT NO. G626-2 FOUND FOR CORNER;
SOUTH 16 DEGREES 23 MINUTES 14 SECONDS WEST. A DISTANCE OF 516.70
Page 2 of 11
...-.....-
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FEET TO C.OE. MONUMENT NO. G626-1 FOUNl)'FOR CORNER;
THENCE, SOUTH 88 DEGREES 5Z MINUTES 21 SECONDS EAST, CONTINUING ALONG
TEE soum LINE OF SAID U.S.A. TRACf G-626, A DISTANCE OF 180.76 FEET TO
C.O.E. MONUMENT NO. G627-1 FOUND FOR CORNER. SAID POINT BEING THE ,
NORTHEAST CORNER OF AFORESAID 182.79 ACRE ROBERTB. SllUEF TRACT AND
THE NORTH WEST CORNER OF U.S.A. TRACI' G627 CONVEYED BY DEED
RECORDED IN VOLUME 385. PAGE 99 AND MODIFIED BY QuIT CLAIM DEED TO E.
SMITH AND ORA MAE SMITII RECORDED IN VOLUME 468, PAGE 418. REAL
PROPERTY RECORDS, DENTON COUNTY, TEXAS;
THENCE. ALONG THE EAST LINE OF SAID STRIE.F TRACf AND THE WEST LINE OF
U.S.A. TRACf 0627 THE FOLLOWING TEN COURSES AND DISTANCES;
SOUTH 32 DEGREES 43 MINUTES 30 SECONDS BAST, A DISTANCE OF 719.9&
FEET TO C.O.E. MONUMENT NO. G627-2 FOUND FOR CORNER;
SOUTII 01 DEGREES 14 MINUTES 39 SECONDS WEST, A DISTANCE OF 250.36
, FEET TO C.O.E. MONUMENT NO. 0627-3 FOUND FOR CORNER;
. NORm 77 DEGREES 49 MINUTES 13 SECONDS WEST, A DISTANCE OF 250.67
FEET TO C.O.E. MONUMENr NO. G627-4 FOUND FOR CORNER;
NORTH 27 DEGREES I I MINUTES 57 SECONDS WEST, A DISTANCE OF 277.42
FEET TO C.O.E. MONUMENT NO. G627-4AFOUND FOR CORNER;AT THE
SOUTH CORNBR. OF A 0.23 ACRE TRACf OF LAND CONVEYED FROM
ROBERT E. STRIEF TO U.S.A. BY DEED RECORDED IN VOLUME 2457, PAGE
193, REAL PROPERTY RECORD. DENTON COUNTY, TEXAS;
NORTII 0.3 DEGREES 56 MINUTES 27 SECONDS EAST. A DISTANCE OF 98.26
FEET TO C.O.E. MONUMENT NO. G627-4B FOUND FOR CORNER;
NO'Rm 17 DEGREES 12 MINUTES 22 SECONDS WEST, A DISTANCE OF 117.41
FEET TO C.O.B. MONUMENT NO. G627-4C FOUND FOR CORNER;
."
.
soum 74 DEGREES 15 MlNUTBS 55 SECONDS WEST. A DISTANCE OF 72.63
FEET TO C.O.E. MONUMENT NO. G627-4D FOUND FOR CORNER;
. NORTH 27 DEGREES I I MINUTES 51 SECONDS WEST. A DISTANCE OF 148.34
FEET TO c.o.a MONUMENT NO. 0627-5 FOUND FOR CORNER;
soum 19 DEGREES 07 MINUTES 15 SECONDS WEST, ^ DISTANCE OF 443.35
FEET TO C.OE. MONUlJENTNO. G627-6 FOUND FOR CORNER; \ ·
SOUTH 24 DEGREES 59 MINUTEs 05 SECONDS EAST, ^ DISTANCE OF 499.68
FEET TO C.O.E. MONUMENT NO. 627-7 FOUND FOR CORNER, SAID POINT
Page 3 of 11
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BEING TIm NORTIIWEST CORNER OF A U.S.A. TRACT.G6Z8 CONVEYED BY
DEED RECORDED IN VOLUME 385, PAGE 99 AND MODIFmn BY QUIT cLAIM
DEED TO E. SMITH AND ORA MAE SMITH RECORDED IN VOLUME 468, l' A.GE
418, REALPROPERTY'RECORDS, DENTON COUNTY, TEXAS;
"
. THENCE, CONTINUING ALONG TIlE EAST LINE OF SAID STRIEF TRACf AND THE
WEST LINE OF SAID U.S.A. TMCT 0628 TIiE FOLLOWING.T~E COURSES AND
DIST ANCBS:
SOUTH 30 DEGREES 03 MlNUTES 06 SECONDS WEST, A DISTANCE OF.393.89
FEET TO C.O.E. MONUMENT NO. 0628-2 FOUND FOR CORNER;
SOUTH 47 DEGRIEES 31 MINlJI'ES"21 SECONDS WEST, A DISTANCE OF
1038.81 FEET TO C.O.E. MONUMENT NO. 0628-3 FOUND FOR CORNER.;
SOUTH 14. DEGREES 19 MINUTES 34 SECONDS WEST, ADISTANCE OF 196.63
FEET TO C.O.E. MONUMENT NO. G628-4 FOUND FOR CORNER IN THE SOUTH
LINE OF SAID STRIBF TRAar;
THENCE. NORm 88 DEGREES 23 MINUTES 26 SECONDS WEST, ALONG THE SOUTH
LINE 9F SAID STRIEF TRACT A DISTANCE OF 375.97 FEET TO A SISto IRON ROD
WITH PLASTIC CAP ST A1\fPED "CARTER & BURGESS" SET FOR CORNER;
THENCE. CONTINUING ALONG SAID SOum: LINE AND THE NORTHWESTERLY
LINE OF U.S.A. TRACf G628. THE FOLLOWING TWO COURSES AND DISTANCE:
NORTH 43 DEGREES 44 MINUTES 52 SECONDS WEST, A DISTANCE OF 148.52
FEET TO THE REMAINS OF C.O.E. MONUMENT NO. 0628-6 FOUND FOR
CORNER.;
SOtITH 09 DEGREES OS MINUTES 14 SpCONDS WEST, A DlSTANCBOF 113.21
. FEET TO A 1/2" IRON ROD FOUND FOR CORNER IN THE soum L~9F'SA,!D
STRIEF TRACT; " .
TIIENCE.. NORm 88 DEGREES 56 MINUTES 00 SECONDS WEST, CONTrnUlNG
ALONG TIm SAID soutH LINE OF STRIEF TRACT, A DIST ANCB OF 2.85 FEET TO A
518" IRON ROD WITH PLASTIC CAP STAMPED "CARTER tL BURGESS" SET FOR
CORNER IN THE SOUTIiBASTBRL Y LINE OF AFOlffiSAID324.084 ACRE WYNNWOOD
PENINSULA, LTD., TRACT AND TIm NOR11lWESTERL Y LINB OF U.S.A. TRACT NO
0:608 CONVEYED BY CONDEMNATION DEED RECORDED IN VOLUME 3&4, PAGE 162
AND MODIFIED BY QUIT CLAlM DEED TO O.N. SEAORA VES, BT UX RECORDED IN
VOLUME 465, PAGE 694, DEED RECORDS, DENTON COUNTY, TEXAS;
. ,.
TIIENCE, ALONG SAID SOUTIffiASTERL Y LINE OF 324.084 ACRE TRACT AND SAID
NORTHWESTERLY LINE OF U.S.A. TRACf 0608 TIIE FOLLOWING SEVEN COURSES
AND DISTANCES:
Page 4 of 11
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soum 42 DEGREES 33 MINUTES 37 SECONDS WEST, A DISTANCE OF 337.43
FEET TO C.O.E. MONUMENT NO. 0608-10 FOUND FOR CORNER;
SOUTH 15 DEGREES 59 MINlITES 41 SECONDS WEST. A lJISTANCE OF 199.68
FEET TO C.O.E. MONUMENT NO. G608-9 FOUND FOR CORNER;
, ,
NORTII 83 DEGREES 16 MINUTES 00 SECONDS WEST. A DISTANCE OF 199.79
FEET TO C.O.E. MONUMENT NO. GQOS-8 FOUND FOR CO~R;
soum 20 DEGREES 15 MINUTES 2S SECONDS WEST, A DISTANCE OF .230.29
FEET TO C.O.E. MONUMENT NO. CM08-7 FOUND FOR CORNER;
NORm 31 DEGREES 01 MINUTES 55 SECONDS WEST, A DISTANCE OF 559.14
FEET TO C.O.E. MONUMENT NO. 0608-6 FOUND FOR CORNER;
NORTH 53 DEGREES 42 MINUfES 38 SECONDS WEST, A DISTANCE OF 119.89
FEET TO C.O.E. MONUMENT NO. 0608-5 FOUND FOR CORNER;
SOUTII04 DEGREES 23 MINUTES I I SECONDS WEST, A DISTANCE OF 50.81
FEET TO C.O.E. MONUMENT NO. 603-2-3 FOUND FOR CORNER, SAID POINT
. BEING nIB NORTH EAST CORNER. OF u.s.A. TRACT NO. G603-2 CONVEYED
BY CONDEMNATION DEED RECORDED IN VOLUME 383, PAGE 30 AND
MODIFIED BY QUIT CLAIM DEED LEONARD V. GUMM, ET AL RECORDED IN
VOLUME 419. PAGE 46', DEED RECORDS. DENTON COUNTY, TEXAS;
THENCE, CONTINUING ALONG SAID SOUTHEASTERLY LINE OF 324.084 ACRE
TRACT AND THE NORm AND WEST LINtS OF SAID U.S..A. TRACY NO. 0603-2 TIIE
FOLLOWING TWO COURSES AND DISTANCES:
NORTIl68 DEGREES 44 MINUTES 45 SECONDS WEST. A DISTANCE OF 300.21
FEET TO C.O.E. MONUMENT NO. 0603-2-2 FOUND FOR CORNER;
. ~ .
soum 18 DEGREES 14 MINUTES 44 SECONDS BAST, A DISTANCE OF 850.05
FEET TO C.O.E. MONUMENT NO. 0603-2-1 FOUND FOR CO~ ~ .
a/
THENCE, SOUTH 01 DEGREES 03 MINUTES S9 SECONDS WEST. ALONG
CONTINUING ALONG THE SAID SOUTHEASTERLY LINE OF SAID 324.084 ACRE
TRACT, A DISTANCE OF 188.40 FEET TO C.O.E. MONUMENT NO. <3603-1-13 FOUND
FOR CORNBR, SAID POINT BEmG mE NORrnEAST CORNER. OF U.S.A. TRACT NO
0603-1 CONVEYED BY CONDEMNArtONDEED RECORDED IN VOLUME 383, PAGE
30 ~MODIFDID BY QUIT CLAIM DEED.TO LEONARD V. GUM:M, ET AL
RECORDED rn VOLUME 419, PAGE 46, DEED RECORDS, DENTON COUNTY, TEXAS:
, '.
THENC~ CONTlNUING ALONG SAID SOUTHEASTERLY LINE AND THE
NORTIlWESTERL Y LINE OF SAID U.S.A. TRACT NO. 0603-1 TIlE FOLLOWING
1WELVE COURSES ANn DISTANCES: v
Page 5 of 11
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NORTH 70 DBGREES 47 MINUTES 04 SECONDSWEST:.A DISTANCE OF 699.72
FEET To-C.O.E. MONUMENT NO. GCS03-1-12 FOUND FOR CORNER;
SOUTH 20 DEGREES 17 MINUTES I I SECONDS EAST. A DISTANCE OF 775.43
FEET TO C.O.E. MONUMENT NO. 0603-1-11 FOUND FOR CORNER:
..
SOUTH 48 DEGREES 19 MINUTES 12 SECONDS WEST. A DISTANCE OF 700.08
FEET TO C.O.E. MONUMENT NO. 0603-1-10 FOUND FOR CORNER;
SOUTII 89 DEGREES 03 MlNUI'ES 12 SECONDS WEST. A DISTANCE O~ 330.13
FEET TO C.O.E. MONUMENT NO. 0003-1-9 FOUND FOR CORNER;
" NORTH 42 DEGREES 06 MINUTES 31 SECONDS WEST. A DISTANCE OF 499.78
FEET TO C.O.E. MONUMENT NO. G603~1-8 FOUND fOR CORNER;
NORTH 75 DEGREES 21 MINUTES 37 SECONDS WEST, A DISTANcE OF 399.88
FEET TO C.O.E. MONUMENT NO. G603-1-7 FOUND FOR CORNER;
SOUTH 25 DEGREES 31 MINUTES 53 SECONDS BAST, A DISTANCE OF 46027
FEET TO C.O.E. MONUMBNTNO. G603-1-6FOUND FOR CORNER;
SOUTH 83 DEGREES 46 MINUTES 49 SECONDS WEST. A DISTANCE OF 450.32
FEET TO C.O.E. MONUMENT NO. G603-1-5 FOUND FOR CORNER;
NORTH 23 DEGREES 47 MINUTES 57 SE.CONDS EAST, A DISTANCE OF 300.02
FEET TO C.O.E. MONUMENT NO. 0603-1-4 FOUND FOR CORNER;
NOR.TH 45 DEGREES SO MINUTES 26 SECONDS WEST. A DISTANCE OF 375.20
. FEET TO C.O.E. MONUMENTNO.G603-1-3 FOUND FOR CORNER;
NORTH 18 DEGREES 18 MINUTES 20 SECONDS WEST. A DISTANCE OF 799.87
FEET TO C.O.E. MONUMENT NO. G603-1-2 FOUND FOR CORNER;
SOUTH 06 DEGREES 02 MINUTES 4S SECONDS WEST. A OISTANCE OF 1374.81
FEET TO C.O.E. MONUMENT NO. 0603-1-1 FOUND FOR CORNER IN THE
soum LINE OF SAID 324.084 ACRE TRACT;
THENCB,NORTII 89 DE.GREES 19 MINUTES 24 SBCONDS WEST. ALONG SAID soum
LINE. PASSINO C.O.E.. MONUME.NTNO. G607-1 AT 539.98 FEET AND CONTINUING IN
ALL A TOTAL DISTANCE OF 559.96 FEET TO A 112' IRON ~on FOUND FORCORNRR,
SAID POlNT BEING 1'HE SOumwEST CORNER OF SAID 324.084 ACRE WYNNWOOD
PENINSULA, LTD., TRACf;
nt'ENCE.NORm 01 DEGREES 01 MINUTES 30 SECONDS EAST. ALONG THE WEST
LINE OF SAID 324.084 ACRE TRACf, PASSING A 112" IRON ROD FOUND AT 132.80
FEET AND CONTINUING eN ALL A TOTAL DISTANCE OF 136.52 FEET TO A 5/8" IRON
Page 6 of 11
--..'
ROD WITH PLASTIC CAP STAMPED "CARTER &: BURGESS:- SET FOR CORNER; SAID
CORNER BEING TIlE SOUTHEAST CORNER OF AFORESAID '56.584 ACRE
wYNNwdOD PENINSULA. L ro. TRACT; ,
THENCE. NORTH 89 DEGREES 10 MINUTES 23 SECONDS WEST, ALONG TIm SOtITH
LINE OF SAID 56.584 ACRE TRACT, A DrST ANCE OF 2153.69 FEET TO TIrE POlN) OF
BEGINNING AND CONTAINING 605.795 ACRES OF LAt'ID, MORE OR LESS.
"
/.
Page 7 of 11
./
EXHI8IT .. ^ " (v-o<{ )
RtING" JS.OOO acre \r6clofland ~ituQted in tneB.B.B. &. C.R.R. Slffi VEY, ADSTRACTNO.182, Den1onCOllnl)', Tel.3s,
and being. part of a 324.084 MCr<: tract of land COl\veyed to Wynnwuod Penin$I"., Ltd. hy d<<d, rccorded ie, COI '
93-R004882 1 , Real Property Records, Denlon County, lcu~ and being pon of II 42.000 acre: tract (\f land conveyed to
Wynnwood Pel\ll\sula, Ltd. by deed, recorded in CCII Y7.R0086:l90. Reall'ropcrty Records, Denton uunl)', Teu&, said
3~.OOO acre lract. widt reference bearing bemg th( Nonh propcny line of $aid 42.000 acre tract, being l\K\te particularly
described by mete.~ alld bounds as follows:
COMl\.iENCINO all 112" iron rod found for Ihc mQl;t Nonherly ~<>rthwcSl comer of Slid 324.084 aCre \fact. "me being
on the Southern Right-of-Way of Boyd Road (A variahle widlh Right-of-Way);
THENCE South 5) dc~r<:c.~ 47 minules 45 seconds Wc.~a, aloo& the Nonhwe.'" line of ~id 324.084 acre tnct and the
common South hne of a tract of I.nd described as tract A I alld conveyed to Nichols TNSl by Deed, recorded ill Volume
2163. Pate .ell, Deed Records, De"101\ Coumy.' distAnce of 203.81 feel [0 A 5/8" iron rod with yell(\w pli$lic cap
slamped ~Carter 1ft. Burgess" Joe( for tbe POIl>.rr OF BEGfNNIN(;;
THENCE. leaving said common line, over lI\d acros~ uid 324.0R4 acre trAct and Aid 42.000 Icre tracl. the foll()""i~
COUl"!;e!' and di$lAnccs:
South 44 deGrees 29 mlnUle$ 07 'econd.~ Ea~t, a distance of 244 .39 feet 1(1 a $/fS" iron rodwith yellow plastic Clp slJinlpcd
"Cartcr &. Bu~essH set for C()O'Ier Imd bcin~ the begillning of . non-can~ent curve to the left naving I central angle tlf
29 degrees 14 minuees 15 seconds, a radius ot 16R5.00 fe~ IInd ,long chord thll bears South:l3 degree.." 09 R,inutc:. 17
!\econd~ We$1 " dis13nce (If 840.54 feel;
Alon~ said no,,-ean~cnt curve to the left, an a.rc di~I"'''<;c of l!59 It" f.e.e\ \(." Sill" iron rod with yellow flla~Iic Clip ~ta",ped
"Caner &: Iiur~e,.s" sct f(n CClmcr;
South 18 degrees 32 millutt!i 09 :;eC(lnds West. II dilll3ncc III 2?4.4R fc:-Cl to IS $/ll" iron rod with yellow pills tic cap :aan\ped
"Caner &c. Burges:;" !>et ((Ir comer and being Ihe bc~inning of :I t,\llgent curve to the right havinr, a centrallogle (If 22
~cgrc-.<:l' 12 mjntJ\e~47 secondli, I radius or 1565.00 feellnd a long chord thlt bears 50uth 29 degree.~ 38 minutes:n
,cconds We.<;t . distuocc of 602.94 fect;
^Ion~. ,.ald taoGelll l'\lrve 1(\ the rlghl. an arc dl$IRnCe (.1' 606.13 feel l.(I 8 5/l!" iron rod with yellow pla!>l.;c ClIp 5lamped
"Caner & lJu'l!ess" lIel for c(\fI\cr;
South 4(J de~r~e~44 minul~S 56 scconds Wesl, r. dlsumcc of 200 feel 10:1 51R" irol\ rOO wilh yellow plastic cap st8mpcd
"Carter &. Bur~ell!''' sel fur corn<:r tmd bcin~ the beginoint of II 130~enl curve to ahe lefl tulving a cClltral angle of 11
der~ )5 minute!: 4' ~.conds, a radius (If 1685.00 feet and a long chocd tMt bear.; Soutb H dcgr'*-S 57 minUI~ 05
~c:eonds Wc...t a di'aaflCe of340.42 fect;
Aloo~ $aid tIn rent curve l(t the left. an art dlslance of 341.00 fcet to it 5/8" iron rod with yellow f\l"$lit l<lp ~tamrcxt
"Caner &. Burgess" ~et for comer;
Nonh 60 degree~ SO minutes 47 $cconds weSt, . dil'ta~ of 4 3 7 Jl3 feel to a SIll" iron rod Wilh yellow pl'~tic cap stamped
"Caner & Dur~CI;~" sel for comer and bemg lhe begil\l\inl( uf I tlnsent curve 10 (he ri~hl havtn~ . (,-clllnl a"8cl or 24
d<:grcc~ 38 mi(lut~ J2 r.ecoods, D radius of 332.S0 fect Ind a long chord that hears North 48 dcgrce~ 31 minutC!o 31
5econd~ WeSf14 d,stanct: l'f 141.90 (eet;
AIClIlg sllid tangent curvc to. tl\e rirht, an llIn; distanc.(. of 14).00 fcelto I 5/8" iron rod WIth yellow plQ<:.lic cap litllmped
"Callel. & OUfl:c:ssM ~el fvr comer;
NCltth 36 degrees 12 mmul.es 15 l'econds West.;! distl\nce of536.49 feel to 0 518" iron rod with yellow plf-stic Clip stamf\ed
"CineI' &. BU\1!CS,;M ~el for comer and being onlhc Nonhwe:S1 hne of 3foreslIld 324.084 Ilcre Irac[ .nd the common S(lulh
Page 8 of 11
line of !laid T l'l'ct ^ I ;
THENCE, North 53 degree.- 4 7 min\lle~ 45~~90ndli E.!;l, along said common line. a diSllnce of2224.04 feet 10 the POIt(f
or BEGINNING and CONI AlNINO lS:.OOO lert.'! of 1.'00 more Or less.
NOTE: The Company is prohibited from in~uring lhe arei or qUfmtily of the land described ~rcin. Any -sutemenl in
the above ICl!.1 des<,,fiption of the arc. or quantily of land is nol . rcpre..~lJtalion thaI such aru or quantiC)' is eonect,
but is made M\ly for info"",uion lind/or identification pUll'Oses and doer. 1101 ovcnide ltern 2 of Schedul.e It hef'e(lf.
Page 9 of 11
/
~
. TRACT B:
BEING A 5.707 ACRl! TRACT OF LAND SI11JATED rNlHE BBB & CCR SURVEy,
ABSTRACf NO. 182, IN THE CITY OF 1lIE COLONY, DENTON COUNTY. TEXAS, AND
BEING ALL OF TRACT 1, 5.704 ACRE TRACt OF LAND CONVEYED TO WYNNWOOD
PENlNSULA,.LTD.. BY DEED RECORDED IN COUNTY CLERKS FILE 93-R0048821, .
. REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS. SAID 5.707 ACRE TRACT
OF LAND BBING MORE PARTICULo\RL Y DESCRIBED BY METES AND BOUNDS AS
FOLLOWS: .
. BEGINNING AT A 518ff IRON ROD WITH PLASTIC CAP STAMPED "CARTER &
BURGESS" SET FOR THE NORTHWEST CORNER OF SAID 5.701 ACRE WYNNWOOD
PENINSULA. L TO. TRACf, SAID POINT BEING IN urn OCCUPIED SOlTTII LINE OF
BOYD ROAD AS CONVEYED BY DEED TO 11IE COUNTY OF DENTON RECORDED IN
VOLUME 400. PAGE 323, DEED RECORDS. PENTON COWTY TEXAS, SAID CORNER
BEARS NORm 89 DEGREEs 24 MINUTES 17 SECONDS EAST 467;96 FEET FROM A
112" IRON ROD FOUND FOR THE NORTHEAST CO~~R OF A 324.0~ ACRE TRACT
. OF LAND CONVEYED BY DEED TO WYNNWOOD PENINSULA, LID. RECORDED IN
SAID COUNTY CLERKS Fll.E 93-ROO4S821. REAL PRQPBRTY RECORDS. DENrON
COUNTY, TEXAS;
THENCE, SOOTIl 89 DEGREES 20 MINUTES 59 SECONDS EAST. ALONG SAD.? soum
LINE AND TIlE NORTH LINE OF SAID 5.707 ACRE TRACf, A DISTANCB OF 390.20
FEET TO A 518" IRON ROD WITIi PLASTIC CAP ST ,A.MPED "CARTER &. BURGESS" SET
FOR COlU'lER;
'fIID;CE. soum 89 DEGREES 12 MINUTES 44 SECONDS EAST6 CONTINUING ALONG
SAID SOUTH LINE AND THE NORTH LINE OF SAID 5.707 ACRE TRACT. A DISTk'fCE
"OF 229.80 FEET TO A FENCE CORNER POST FOR CORNER;
THENCE, SOUTH 08 DEGREES 02 MINUTES 19 SECONDS WEST, ALONG THE
NORTHERLY LINE OF U.s.A. TRACT 0626 OF THE GARZA-LITTLE ELM RESERVOrR
Page 10 of 11
-'
PROJECT (NOW CALLED LAKE LEWISVlLLE) CONVEYED ny DEED RECORDED IN
VOLUME 38 1. PAGE 423~ DEED RECORDS, DENTON <:OUNTY; TEXAS; A DISTANCE
OF 497.20 FEET TO C.O.E MONUMENT NO. 626-1 0 FOUND FOR CORNER;
THENCE, SOUTH 76 DEGREES 03 MINUTES 46 SECONDS WEST, CONTINUING
ALONG SAID NORTHERLY LINE, A DlST ANCE OF 309.51 TO A SI8If IRON ROD Vl,ITH
PLASTIC CAP STAMPED "CARTER & BURGESS" SET FOR CORNER, 2 FEET soutH OF
AND 2.5 FEET WEST OF A FENCE CORNER POST;
TIlENCE, NORTH 23 DEGREES 31 MINUTES 15 SECONDS WEST, CONTINUlNG
ALONG SAID NORTHERLY Wffi, A DISTANCE OF 626.50 FEET TO THE POINT OF
BEGJ:NNn.lG AND CONTAINING 5.707 ACRES OF LAND, MORE oa LESS.
--
f
Page 11 of 11
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Wastewater Services For Wynnwood Peninsula
Current Cost:
Engineering $ 400,000 approximate cost
Lift Station & Pumps 1,400,000 approximate cost
Force Main 2,600,000 approximate cost
Total Current Cost 4,400,000
Future Cost (2010):
Additional pump @ lift station 250,000 approximate cost
Total Cost $ 4,650,000
GxA;h;-r-
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AFTER RECORDING, RETURN To:
Robert E. Hager
c/o Nichols, Jackson, Dillard, Hager & Smith, LLP
1800 Lincoln Plaza
500 N. Akard
Dallas, Dallas County, Texas 75201
DEED OF TRUST
Date:
August 1,2005
Grantor:
Wynnwood Peninsula, Ltd.
Grantor's Mailing Address
(including county):
1660 S. Stemmons Freeway, Suite 280
Lewisville, Denton County, Texas 75067
Trustee:
Robert E. Hager
Trustee's Mailing Address
(including county):
c/o Nichols, Jackson, Dillard, Hager & Smith, LLP
1800 Lincoln Plaza
500 N. Akard
Dallas, Dallas County, Texas 75201
Beneficiary:
City of The Colony, a home rule city and political
subdivision of the State of Texas
Beneficiary's Mailing Address
(including county):
c/o Dale Cheatham, City Manager
6800 Main Street
The Colony, Denton County, Texas 75056
Secured Obligation
Date:
August 1, 2005
Number of Acres:
76 acres
Property (including any
improvements) :
See Exhibit A attached hereto and incorporated herein by
this reference.
Prior Lien(s) and Other Exceptions See Exhibit B attached hereto and incorporated herein by
to Conveyance and Warranty: this reference.
For value received and to secure payment of the secured obligation, Grantor conveys the
property to Trustee in trust. Grantor warrants and agrees to defend the title to the property. If
DEED OF TRUST
DALLAS4 737270vl 32951 -00001
Page 1
NJDHS76088
Grantor performs all the covenants and pays the secured obligation according to its terms, this
deed of trust shall have no further effect, and Beneficiary shall release it at Grantor's expense.
Grantor's Obligations
Grantor agrees to:
I. pay all taxes and assessments on the property when due;
2. preserve the lien's priority as it is established in this deed of trust; and
3. if this is not a first lien, pay all prior lien notes that Grantor is personally liable to
pay and abide by all prior lien instruments.
Beneficiary's Rights
I. Beneficiary may appoint in writing a substitute or successor trustee, succeeding to
all rights and responsibilities of Trustee.
2. If Grantor fails to perform any of Grantor's obligations, Beneficiary may perform
those obligations and be reimbursed by Grantor on demand at the place where the secured
obligation is payable for any sums so paid, including attorney's fees, plus interest on those sums
from the dates of payment at the rate stated in the secured obligation for matured, unpaid
amounts. The sum to be reimbursed shall be secured by this deed of trust.
3. If Grantor defaults on the secured obligation or fails to perform any of Grantor's
obligations or if default occurs on a prior lien note or other instrument, and the default continues
after Beneficiary gives Grantor notice of the default and the time within which it must be cured,
as may be required by law or by written agreement, then Beneficiary may:
a. declare the unpaid principal balance on the secured obligation
immediately due;
b. request Trustee to foreclose this lien, in which case Beneficiary or
Beneficiary's agent shall give notice of the foreclosure sale as provided by
the Texas Property Code as then amended; and
c. purchase the property at any foreclosure sale by offering the highest bid
and then have the bid credited on the secured obligation.
Trustee's Duties
If requested by Beneficiary to foreclose this lien, Trustee shall:
I. either personally or by agent give notice of the foreclosure sale as required
by the Texas Property Code as then amended;
2. sell and convey all or part of the property to the highest bidder for cash
with a general warranty binding Grantor, subject to prior liens and to other exceptions to
conveyance and warranty; and
3. from the proceeds of the sale, pay, in this order:
a. expenses of foreclosure, but not including any commISSIOn to
Trustee;
b. to Beneficiary, the full amount of principal, interest, attorney's
fees, and other charges due and unpaid;
DEED OF TRUST
DALLAS4 737270vl 32951-00001
Page 2
NJDHS.76088
c. any amounts required by law to be paid before paYment to Grantor;
and
d. to Grantor, any balance.
General Provisions
1. If any of the property is sold under this deed of trust, Grantor shall immediately
surrender possession to the purchaser. If Grantor fails to do so, Grantor shall become a tenant at
sufferance of the purchaser, subject to an action for forcible detainer.
2. Recitals in any Trustee's deed conveying the property will be presumed to be true.
3. Proceeding under this deed of trust, filing suit for foreclosure, or pursuing any
other remedy will not constitute an election of remedies.
4. This lien shall remain superior to liens later created even if the time of payment of
all or part ofthe secured obligation is extended or part ofthe property is released.
5. If any portion of the secured obligation cannot be lawfully secured by this deed of
trust, payments shall be applied first to discharge that portion.
6. Grantor assigns to Beneficiary all sums payable to or received by Grantor from
condemnation of all or part of the property, from private sale in lieu of condemnation, and from
damages caused by public works or construction on or near the property. After deducting any
expenses incurred, including attorney's fees, Beneficiary may release any remaining sums to
Grantor or apply such sums to reduce the secured obligation. Beneficiary shall not be liable for
failure to collect or to exercise diligence in collecting any such sums.
7. Grantor assigns to Beneficiary absolutely, not only as collateral, all present and
future rent and other income and receipts from the property. Leases are not assigned. Grantor
warrants the validity and enforceability of the assignment. Grantor may as Beneficiary's
licensee collect rent and other income and receipts as long as Grantor is not in default under the
secured obligation or this deed of trust. Grantor will apply all rent and other income and receipts
to payment of the secured obligation and performance of this deed of trust, but if the rent and
other income and receipts exceed the amount due under the secured obligation and deed of trust,
Grantor may retain the excess. If Grantor defaults in payment of the secured obligation or
performance of this deed of trust, Beneficiary may terminate Grantor's license to collect and then
as Grantor's agent may rent the property if it is vacant and collect all rent and other income and
receipts. Beneficiary neither has nor assumes any obligations as lessor or landlord with respect
to any occupant of the property. Beneficiary may exercise Beneficiary's rights and remedies
under this paragraph without taking possession of the property. Beneficiary shall apply all rent
and other income and receipts collected tmder this paragraph first to expenses incurred in
exercising Beneficiary's rights and remedies and then to Grantor's obligations under the secured
obligation and this deed of trust in the order determined by Beneficiary. Beneficiary is not
required to act under this paragraph, and acting under this paragraph does not waive any of
Beneficiary's other rights or remedies. If Grantor becomes a voluntary or involuntary bankrupt,
Beneficiary's filing a proof of claim in bankruptcy will be tantamount to the appointment of a
receiver under Texas law.
8. Interest on the obligation secured by this deed of trust shall not exceed the
maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged,
or received under law; any interest in excess of that maximum amount shall be credited on the
DEED OF TRUST
DALLAS4 737270vl 32951-00001
Page 3
NJDHS.76088
principal of the debt or, if that has been paid, refunded. On any acceleration or required or
permitted prepayment, any such excess shall be canceled automatically as of the acceleration or
prepayment or, if already paid, credited on the principal of the debt or, if the principal of the debt
has been paid, refunded. This provision overrides other provisions in this and all other
instruments concerning the debt.
9. When the context requires, singular nouns and pronouns include the plural.
10. The term "secured obligation" includes all sums secured by this deed of trust.
11. This deed of trust shall bind, inure to the benefit of, and be exercised by
successors in interest of all parties.
12. Grantor represents that this deed of trust and the secured obligation are given for
the following purposes: To secure Grantor's obligation to make payments to Grantee pursuant to
the terms and provisions of that certain Facilities Reimbursement Agreement between Grantor
and Grantee, dated August 1,2005.
13. Grantor is entitled to partial releases of the lien of this deed of trust on the
following terms and conditions:
a. Releases will be granted by tracts of not less than five (5) acres each,
successively and contiguously, beginning with the northern portion of the
property and proceeding southward. Each tract to be released will be
approximately rectangular in shape and will have as its boundary a portion
of the property's frontage on the north side, and as its southern boundary
an approximately equal portion of the northern boundary of the Property.
No release will be granted that would deny frontage or disproportionately
reduce the frontage on the northern side available to the unreleased prior
of the property or cause the unreleased portion of the property to be less
than twenty (20) acres. Access from the unreleased portion of the
property to northern portion must be at least thirty (30) feet wide.
b. To obtain a release, a principal amount of thirty-five thousand dollars
($35,000) per acre in cash must be paid with respect to the secured
obligation.
c. At the time a partial release is requested, Grantor must furnish to Grantee
a calculation of area by field notes and a plat of survey, indicating the area
to be released and its relationship to the portion of the property not to be
released. All expenses (excluding Grantee's attorneys' fees) incident to
the granting of partial releases will be borne by Grantor, including but not
limited to the cost of the survey and recording costs.
14. In the event that Grantor determines that alternate security is provided and
accepted by the Grantee in the form of a payment bond or irrevocable letter of credit in favor of
the Grantee, a release of the lien created by this deed of trust will be released.
DEED OF TRUST
DALLAS4 737270vl 32951-00001
Page 4
NJDHS.76088
ACKNOWLEDGMENT
THE STATE OF TEXAS S
COUNTY OF ~ ~
n \f~ jlcknowledged before me on .A1/{'WJf ( , 2005, by
j I /'" J" , as the President of Matthew~ehalf of said
wood Peninsula, Ltd.
"~,,~~t~~;,,,"
,f.~~.. .I!~ ~
::"', .'(-o~
- . . -
\.-}. i..J
'l,,;~;/il'~$~
-"",,'ttI~
REBECCA J. REED
Notary Public. State of Texas
My Commission Expires
JUly 02, 2008
Nota' Public in and for
the State of Texas
DEED OF TRUST
DALLAS4 737270vl 32951-00001
Page 5
NJDHS.76088
EXHIBIT "B"
PRIOR LIENS AND OTHER EXCEPTIONS TO CONVEYANCE AND WARRANTY
All validly existing easements, rights-of-way, and prescriptive rights, whether of record or not;
all presently recorded and validly existing instruments or other matters of record, other than
conveyances of the surface fee estate, that affect the property; and the lien for taxes.
DEED OF TRUST
DALLAS4 737270vl 32951-00001
Page 7
NJDHS.76088