Loading...
HomeMy WebLinkAboutRes 2012-09-13 Development Agreement with Bloomfield Homes.pdfCITY OF ANNA, TEXAS RESOLUTION NO. 2012-09-13 A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF ANNA, TEXAS AND BLOOMFIELD HOMES, L.P. WHEREAS, the City of Anna, Texas (the "City") and BLOOMFIELD HOMES, L.P. ("Owner") desire to enter into a Development Agreement (the "Agreement"); and WHEREAS, the City Council of the City of Anna, Texas find that approval of the Agreement is in the best interest of the citizens of Anna; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Approval of Agreement The City Council hereby approves Development Agreement attached hereto as Exhibit 1, and authorizes, ratifies and approves the City Manager's execution of same. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to finalize, act under, and enforce the Agreement. PASSED AND APPROVED by the City Council of the City of Anna, Texas on this 25th day of September, 2012. Mild Crist, Mayor ATTEST: 2�& I-Z�1- F �j Nab a Wilkison, City Secretary ti 'k \.,\ RES. 2012-09-13 Develop Agreement with Bloomfield Homes PAGE 1 OF 1 09-25-12 DEVELOPMENT AGREEMENT This Development Agreement (this "Agreement") is entered into between the City of Anna, Texas (the "City") and BLOOMFIELD HOMES, L.P. ("Owner"). The term "Owner" includes all owners of the Property, and each of the owners of the Property are jointly and severally bound to the obligations of the "Owner" under this Agreement. WHEREAS, Owner and the City are sometimes collectively referenced in this Agreement as the "Parties"; and WHEREAS, it is the Parties mutual intent that this Agreement shall govern only the subject matter specifically set forth herein and that this Agreement shall supersede any other agreement between the Parties and the City's ordinances and other regulations only to the extent that any such agreements, ordinances or regulations directly conflict with the terms of this Agreement; and WHEREAS, the Owner owns a parcel or parcels of real property (the "Property") in Collin County, Texas, which is located entirely within the corporate limits of the City of Anna and is more particularly and separately or jointly described in the attached EXHIBIT A; and, WHEREAS, the Owner desires to dedicate a portion of the Property to the City for the development of park and recreation facilities or other public use (the "Land Dedication for Public Use"); and WHEREAS, the Owner has proposed to the City that it make the Land Dedication for Public Use, which is a valuable benefit to the Owner as the Owner desires to enhance and make more attractive to prospective residential home buyers the resulting development of the Property by providing public access to open space areas; and WHEREAS, the Owner acknowledges that the City's acceptance of the Land Dedication for Public Use places a significant burden upon the City to thereafter maintain the Land Dedication for Public Use for public purposes; WHEREAS, the Owner understands and acknowledges that the City's agreement to accept the Land Dedication for Public Use is not a condition of approval of the development of the Property, nor is said acceptance an exaction or a concession demanded by the City but rather is an undertaking of Owner's voluntary design to ensure consistency, quality, and adequate infrastructure that will benefit the Owner's development of the Property; WHEREAS, the City acknowledges that the Owner will incur significant costs in the making of the Land Dedication for Public Use and that those costs will result in some public benefit; WHEREAS, the City is agreeable to the Owner's proposal to the Land Dedication for Public Use and in consideration thereof is willing to forgo collection of certain Park Fees; 1 9/6/2012 12:31 PM WHEREAS, in consideration of the Land Dedication for Public Use, the City agrees to forgo collection of certain fees to be paid in connection with the issuance of single family home building permits issued on property owned by the Owner and located within the Anna city limits; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows: Section 1. Recitals Incorporated. The recitals set forth above are incorporated herein as if set forth in full to further describe the Parties' intent under this Agreement and said recitals constitute representations by the Owner: Section 2. Terms. Unless the context requires otherwise, and in addition to the terms defined above, the following terms and phrases used in this Agreement have the meanings set out below: Park Fees means fees charged by the City to a developer or builder for the general purpose of funding the purchase or construction of park facilities; including: 1) any applicable fees described in Part IV, Article 4, Section 6 or Part III -A, Article 4, Sections 5.03 and 5.04, of the Anna City Code of Ordinances; or 2) any similar applicable park development fee included in a facilities agreement approved by the Anna City Council. Section 3. Land Dedication for Public Use. The Owner shall donate by irrevocable deed of dedication for public use, the form and content of which is attached to this Agreement as EXHIBIT B, approximately 2.794 acres of land to the City of Anna currently intended by the City to be used for the development of park and recreation facilities (said land being as described in more detail in the attached EXHIBIT C). Owner shall duly execute and deliver a copy of said deed of dedication to the City within 30 days of the effective date of this Agreement, or, solely at the City's option, delay the execution and delivery of the deed until a later time, but in any event no later than 120 days after the effective date of this Agreement. Section 4. Park Fees. Provided that the Owner fulfills its obligations under this Agreement, the City agrees that it shall not be entitled to collect, and shall forgo collection of, the Park Fees that would normally be charged in connection with the issuance of building permits for single family homes to be constructed on lots located within the Anna city limits and owned by the Owner, but only to the extent that the total amount of Park Fees that the City forgoes under this Agreement does not exceed $27,940. Notwithstanding any provision of this Agreement, inspection fees, impact fees, and other customary fees apart from Park Fees shall remain applicable, and such fees shall be collected, under applicable ordinances and regulations. Section 6. Effective Date. The effective date of this Agreement is the date that the last of the Parties' signatures to this Agreement is fully and properly affixed to this Agreement and acknowledged by a notary public. The City's duties and obligations hereunder shall not arise unless and until the City Council has duly adopted this Agreement and the Owner has duly executed same. 2 9/6/2012 12:31 PM Section 7. THE OWNER COVENANTS AND AGREES, JOINTLY AND SEVERALLY, TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY AGAINST ANY AND ALL LEGAL CLAIMS, BY ANY PERSON CLAIMING AN OWNERSHIP INTEREST IN THE PROPERTY WHO HAS NOT SIGNED THIS AGREEMENT AND WHICH CLAIMS (1) ARISE IN ANY WAY FROM THE CITY'S RELIANCE ON THIS AGREEMENT, AND (2) RELATE IN ANY MANNER OR ARISE IN CONNECTION WITH THIS AGREEMENT. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE CITY SHALL HAVE NO RIGHT OF CONTROL, SUPERVISION, OR DIRECTION OVER THE DESIGN OR CONSTRUCTION OF ANY PUBLIC IMPROVEMENT, NOR THE MEANS, METHODS, SEQUENCES, PROCEDURES, AND TECHNIQUES UTILIZED TO COMPLETE THE PUBLIC IMPROVEMENTS. THERE SHALL BE NO JOINT CONTROL OVER ANY PUBLIC IMPROVEMENT OR CONSTRUCTION ACTIVITIES ASSOCIATED THEREWITH. CITY SHALL EXERCISE CUSTOMARY INSPECTION AND PERMITTING FUNCTIONS, AS REQUIRED BY CITY ORDINANCES AND REGULATIONS. Section 8. This Agreement may be enforced by the City by any proceeding at law or in equity. Failure to do so shall not be deemed a waiver to enforce the provisions of this Agreement thereafter. From and after the inspection and acceptance by the City of the Land Use Dedication for Public Use or any part thereof, such Public Improvement shall be owned by the City. The Owner's sole remedy for nonperformance by the City shall be to seek specific performance of the terms of this Agreement. This Agreement does not waive any rights or immunities otherwise existing under law unless expressly set forth herein and the Parties understand and agree that this Agreement is not one for the provision of goods or services to the City by the Owner or any other person. Section 9. Exclusive jurisdiction, forum and venue for any dispute arising out of this Agreement shall be in Collin County, Texas. Section 10. Notwithstanding any other provision of this Agreement, Owner and its successors or assigns must comply with all applicable statutes or regulations of the United States and the State of Texas, as well as any City ordinances in effect on the Effective Date and not in conflict with this Agreement, and any rules implementing such statutes or regulations. Section 11. Assignment by Owner. (a) Except as otherwise provided in this paragraph, Owner has the right (from time to time upon delivery of two weeks' prior written note to the City) to assign this Agreement, in whole or in part, and including any obligation, right, title, or interest of Owner under this Agreement, to any person or entity (an "Assignee") that is or will become an owner of any portion of the Property or that is an entity that is controlled by or under common control with Owner. Notwithstanding the foregoing, Owner shall not assign this Agreement, in whole or in part, to an Assignee if the City, after action by the City Council (which action shall be considered by the City in good faith based upon financial and performance criteria, and which action shall not be unreasonably withheld, conditioned or delayed), notifies Owner within 14 days of receipt of the written notice 9/6/2012 12:31 PM required by this Section 10(a) that such Assignee fails to satisfy the City's financial and performance criteria. If the City provides such notice to Owner then the Parties, within 14 days of such notice, shall mediate the dispute. The mediator shall be mutually agreed-upon; and the cost of such mediator shall be paid equally by the Parties. The mediator's determination shall not be binding on the Parties. If a Party refuses to mediate, then the decision of the Party willing to mediate shall be binding. (b) Each assignment shall be in writing executed by Owner and the Assignee and shall obligate the Assignee to be bound by this Agreement to the extent this Agreement applies or relates to the obligations, rights, title, or interests being assigned. From and after such assignment, the City agrees to look solely to the Assignee for the performance of all obligations assigned to the Assignee and agrees that Owner shall be released from subsequently performing the assigned obligations and from any liability that results from the Assignee's failure to perform the assigned obligations; provided, however, Owner shall not be released until the City receives an executed copy of such assignment. No assignment by Owner shall release Owner from any liability that resulted from an act or omission by Owner that occurred prior to the effective date of the assignment unless the City approves the release in writing. Owner shall maintain written records of all assignments made by Owner to Assignees, including a copy of each executed assignment and the Assignee's Notice information as required by this Agreement, and, upon written request from any Party or Assignee, shall provide a copy of such records to the requesting person or entity. Section 12. This Agreement is for the sole and exclusive benefit of the City and the Owner and is not intended to and shall not confer any rights or benefits on any third party not a signatory hereto. Section 13. This Agreement may be separately executed in individual counterparts and, upon execution, shall constitute one and same instrument. Section 14. All notices, demands or other communications required or provided hereunder shall be in writing and shall be deemed to have been given on the earlier to occur of actual receipt or three (3) days after the same are deposited in the United States mail, certified or registered, postage prepaid, return receipt requested, addressed to the parties at the addresses set forth below or at such other addresses as such parties may designate by notice to the other parties. 4 9/6/2012 12:31 PM SIGNATURES: BLOOMFIELD HOMES, L.P., A Texas limited partnership By: Bloomfield Properties, Inc., a Texas corporation Donald J. Dykstra, its President Address: 1050 E. Hwy 114, Suite 210 Southlake, TX 76092 Telephone: (817) 416-1572 Facsimile: (817) 251-6322 Email fieldhornesjjet With a copy to: Glen A. Bellinger Bellinger & DeWolf, L.L.P. 10,000 N. Central Expressway, Dallas, TX 75231 Telephone: (214) 954-9540 Facsimile: (214) 954-9541 Email:lli er �d-Iq . crn IN WITNESS WHEREOF: STATE OF TEXAS § COUNTY OF § City of Anna Philip Sanders, City Manager Address: 111 N. Powell Parkway Anna, TX 75409 Attn: City Manager Telephone: (972) 924-3325 Facsimile: (972) 924-3325 With a copy to: Clark McCory Wolfe, Tidwell & McCoy, LLP Suite 900 2591 Dallas Parkway, Ste. 205 Frisco, TX 75034 Telephone: (972) 712-3530 Facsimile: (972) 712-3540 Before me, the undersigned notary public, on the day of ,2012, personally appeared Donald J. Dykstra, known to me (or proved to me) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same in his capacity as President of Bloomfield Properties, Inc., a Texas corporation, as General Partner of Bloomfield Homes, L.P., a Texas limited partnership. Notary Public, State of Texas 9/6/2012 12:31 PM STATE OF TEXAS § COUNTY OF § Before me, the undersigned notary public, on the day of ,2012, personally appeared Philip Sanders, known to me (or proved to me) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same in his capacity as City Manager of the City of Anna and on behalf of the City of Anna. Notary Public, State of Texas 6 9/6/2012 12:31 PM EXHIBIT A LEGAL DESCRIPTION 5044-2 WHEREAS, NICHOLAS ROSS PROPERTIES, L.L.C., a Texas limited liability company, is the owner of a tract of land situated in the John C. Farris Survey, Abstract Number 331, Collin County, Texas the subject tract being a portion of a tract of land conveyed to said Nicholas Ross Properties, L.L.C., and identified as Tract B according to the Special Warranty Deed recorded in County Clerk File Number 20100930001049670 of the Official Public Records of Collin County, Texas (OPRCCT), the subject tract being more particularly described as follows; BEGINNING at a boundary angle point of West Crossing Phase 1, an addition to the City Of Anna Texas, according to the Final Plat recorded in Volume 2006, Page 22 (LRCCT), said point being the intersection of the southerly line of Hackberry Drive (a platted 80' ROW) and the east line of Drayton Drive (a platted 50' ROW), a 1/2" iron pin with a red cap stamped Tipton Engineering, Inc. found at corner; THENCE, along the said Hackberry Drive southerly line and around a non -tangent curve to the left having a central angle of 34° 14' 14", a radius of 680.00 feet and a chord of N 700 53' 37" E — 400.32 feet, an are distance of 406.34 feet to the most westerly corner of Tract 2, Block A of said West Crossing Phase 1; THENCE, S 750 24' 47" E, along a southerly line of said Tract 2, Block A, a distance of 4.34 feet; THENCE, along the easterly line of said Nicholas Ross Properties, L.L.C., Tract B and the westerly line of a tract of land conveyed to Meltex, Inc. according to the deed recorded in Volume 2929, page 325 (LRCCT) and along the approximate centerline of Slater Creek the following; S 05° 42' 54" E, a distance of 124.78 feet; S 17° 26' 54" E, a distance of 250.00 feet; S 33° 18' 54" E, a distance of 110.00 feet; S 39° 26' 54" E, a distance of 113.00 feet; S 02° 59' 06" W, a distance of 69.26 feet; S 56° 04'14" W, a distance of 146.42 feet to a point on the north line of a tract of land conveyed to William Bentley Powell according to the deed recorded in Volume 5279, Page 4123 (LRCCT); THENCE, S 89° 55' 53" W, along a south line of said Nicholas Ross Properties, L.L.C., Tract B and said William Bentley Powell tract north line, a distance of 68.56 feet; THENCE, S 010 21' 20" E, along a west line of said William Bentley Powell tract and easterly line of said Nicholas Ross Properties, L.L.C., Tract B, a distance of 335.91 feet (deed call = 339.90 feet) to a point on the northerly line of Willow Creek Addition, an addition to the City Of Anna according to the Final Plat recorded in Cabinet Q, Page 352 (LRCCT), a 3/8" iron pin found at corner; THENCE, along the said Willow Creek Addition northerly line and the southerly line of said Nicholas Ross Properties, L.L.C. Tract B, the following; N 74° 43' 31" W, a distance of 34.51 feet; N 38° 38' 52" W, a distance of 64.63 feet to a point from which a 3/8" iron pin found bears S 40° 06' 54" W — 4.75 feet; S 82° 36' 02" W, a distance of 247.81 feet to a 3/8" iron pin found at corner; N 01' 20' 07" W, a distance of 51.89 feet to an axle found at corner; N 22° 15' 40" W, a distance of 73.44 feet to an axle found at corner; N 40° 51' 44" W, a distance of 127.91 feet to a 3/8" iron pin found at corner; N 30° 13' 20" W, a distance of 132.18 feet to a 3/8" iron pin found at corner; N 00° 45' 22" E, a distance o 106.37 feet; N 86° 59' 46' W, a distance of 78.63 feet to the southeast corner of Tract 1, Block A of said West Crossing Phase 1, a 3/8" iron pin found at corner; THENCE, N 070 39' 51" E, along the easterly line of said Tract 1, Block A, a distance of 51.94 feet; THENCE, N 000 07' 09" E, continuing along the easterly line of said Tract 1, Block A part of the way and along the east line of Lot 4, Block A of said West Crossing Phase 1, a distance of 214.00 feet to a point on the south line of Honeywell Drive, a 50" ROW, a 1/2" iron pin with a red cap stamped Tipton Engineering, Inc. found at corner; THENCE, S 89° 52' 51" E, along the said Honeywell Drive south line, a distance of 140.00 feet; THENCE, continuing along the said Honeywell Drive south line and around a tangent curve to the left having a central angle of 010 41' 43', a radius of 845.00 feet and a chord of N 89° 16' 18" E — 25.00 feet, an arc distance of 25.00 feet to a 1/2" iron pin with a red cap stamped Tipton Engineering, Inc. found at corner; THENCE, N 000 07' 09" E, along the east line of the previously mentioned Drayton Drive, a distance of 165.09 feet to the PLACE OF BEGINNING with the subject tract containing 469,338 Gross Square Feet or 10.7745 Gross Acres of Land with 53,008 + - Square feet located in the 100 Year Floodplain leaving a Net 416,330 Square Feet or 9.5576 + - Acres of Land. Bearings for this description are based on the controlling monuments found along the north line of the subject tract and the Final Plat of West Crossing Phase 1 recorded in Volume 2006, Page 22 (LRCCT). ti 0 0 J yYlc' md� —VA \ J 2U a U \ f, M• I 12 I WNy� I � ' a. NSI til AW -- r J � 8 . mn1N lie y J g&gl dJ 2 � 2 2 ti N§ T3RN - < N U z � 1 r s,"o (� (SOV U Pp am wi8 a 3 \b0 y S 05YZ31, IMJB ZN C II I i ,B!'[8 3.QUM N .001 WNy� MM � a. NSI til � ty m _I_ N lie y J g&gl I N§ T3RN - aZ OZ 3.60L400 N N s,"o W Z (SOV U am wi8 a 3 ZN C II I i p 3 — z ° WNy� MM � a. NSI til � ty m W lie y J E4 s,"o EXHIBIT C LEGAL DESCRIPTION 5044-2 BEING part of a tract of land situated in the John C. Farris Survey, Abstract Number 331, Collin County, Texas the subject tract being a portion of a tract of land conveyed to said Nicholas Ross Properties, L.L.C., and identified as Tract B according to the Special Warranty Deed recorded in County Clerk File Number 20100930001049670 of the Official Public Records of Collin County, Texas (OPRCCT), the subject tract being more particularly described as follows; COMMENCING at a boundary angle point of West Crossing Phase 1, an addition to the City Of Anna Texas, according to the Final Plat recorded in Volume 2006, Page 22 (LRCCT), said point being the intersection of the southerly line of Hackberry Drive (a platted 80' ROW) and the east line of Drayton Drive (a platted 50' ROW), a 1/2" iron pin with a red cap stamped Tipton Engineering, Inc. found at corner; THENCE, along the said Hackberry Drive southerly line and around a non -tangent curve to the left having a central angle of 22° 02' 40", a radius of 680.00 feet and a chord of N 760 59' 20" E — 260.03 feet, an are distance of 261.64 feet to the PLACE OF BEGINNING; THENCE, along the said Hackberry Drive southerly line and around a non -tangent curve to the left having a central angle of 12° 11' 30", a radius of 680.00 feet and a chord of N 590 52' 10" E —144.42 feet, an arc distance of 144.69 feet to the most westerly corner of Tract 2, Block A of said West Crossing Phase 1; THENCE, S 750 24' 47" E, along a southerly line of said Tract 2, Block A, a distance of 4.34 feet; THENCE, along the easterly line of said Nicholas Ross Properties, L.L.C., Tract B and the westerly line of a tract of land conveyed to Meltex, Inc. according to the deed recorded in Volume 2929, page 325 (LRCCT) and along the approximate centerline of Slater Creek the following; S 05° 42' 54" E, a distance of 124.78 feet; S 17° 26' 54" E, a distance of 250.00 feet; S 33° 18' 54" E, a distance of 110.00 feet; S 39° 26' 54" E, a distance of 113.00 feet; S 02° 59' 06" W, a distance of 69.26 feet; S 56° 04'14" W, a distance of 146.42 feet to a point on the north line of a tract of land conveyed to William Bentley Powell according to the deed recorded in Volume 5279, Page 4123 (LRCCT); THENCE, S 890 55' 53" W, along a south line of said Nicholas Ross Properties, L.L.C., Tract B and said William Bentley Powell tract north line, a distance of 68.56 feet; THENCE, S O10 21' 20" E, along a west line of said William Bentley Powell tract and easterly line of said Nicholas Ross Properties, L.L.C., Tract B, a distance of 335.91 feet (deed call = 339.90 feet) to a point on the northerly line of Willow Creek Addition, an addition to the City Of Anna according to the Final Plat recorded in Cabinet Q, Page 352 (LRCCT), a 3/8" iron pin found at corner; THENCE, along the said Willow Creek Addition northerly line and the southerly line of said Nicholas Ross Properties, L.L.C. Tract B, the following; N 74° 43' 31" W, a distance of 3 4.5 1 feet; N 38° 38' 52" W, a distance of 64.63 feet to a point from which a 3/8" iron pin found bears S 40° 06' 54" W — 4.75 feet; S 82° 36' 02" W, a distance of 247.81 feet to a 3/8" iron pin found at corner; N O1 ° 20' 07" W, a distance of 51.89 feet to an axle found at corner; THENCE, N 48° 25'30" E, a distance of 148.13 feet; THENCE, along a non -tangent curve to the left having a central angle of 95° 16' 40" a radius of 50.00 feet, and a chord of N 88° 12' 50" W-73.89 feet, an arc distance of 83.15 feet; THENCE, S 45° 51'10" E, a distance of 20.00 feet; THENCE, N 880 41'24" E, a distance of 101.06 feet; THENCE, N O1° 18' 36" W, a distance of 536.00 feet; THENCE, N 02° 57'28" E, a distance of 67.19 feet; THENCE, N 09° 47'56" W, a distance of 67.74 feet; THENCE, S 88° 41'24" W, a distance of 105.00 feet; THENCE, N O1° 18'36" W, a distance of 35.70 feet; THENCE, along a tangent curve to the left having a central angle of 19° 51' 56" a radius of 275.00 feet, and a chord of N 11 ° 14' 34" W-94.87 feet, an arc distance of 94.87 feet to the PLACE OF BEGINNING and containing 121,708 square feet or 2.794 acres of land. NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. DEDICATION DEED THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF COLLINS § BLOOMFIELD HOMES, L.P., a Texas limited partnership (hereinafter called "Grantor"), as a dedication, donation and gift to the CITY OF ANNA, TEXAS, a Texas municipal corporation (hereinafter called "Grantee"), whose address is 111 N. Powell Parkway, Anna, Collin County, Texas 75049, has DEDICATED and CONVEYED, and by these presents does hereby DEDICATE and CONVEY forever unto Grantee for public use, the real property located in Collin County, Texas which is more particularly described on Exhibit A attached hereto and made a part hereof for all purposes (the "Property") subject to, however, all matters of record in the Real Property Records of Collin County, Texas (said matters being called the "Permitted Exceptions"). Subject to the restrictions set forth below, Grantor expressly retains and reserves (i) a nonexclusive right of ingress, egress, and access on, over, across, to and from the Property, (ii) a nonexclusive right to install, construct, operate, replace, improve, alter, remove and perpetually maintain water, wastewater, or sanitary sewer utility improvements necessary or appropriate for the development and/or use of the real property (the "Adjacent Property") located adjacent to the Property and currently owned by Grantor as more particularly described and/or depicted on Exhibit B attached hereto and incorporated herein by reference, said utility improvements including only sanitary sewer lines, storm sewer lines, water lines, and related improvements necessary for said lines, and (iii) all rights to drain water from the surface of the Adjacent Property onto, over and across the Property. Without limiting the foregoing, Grantor hereby additionally retains and reserves a temporary construction easement over such portions of the Property as is reasonably necessary or appropriate to enable Grantor to install, construct, operate, replace, improve, alter, remove and perpetually maintain any improvements described above, and to perform any other work reasonably required in connection therewith. The rights, easements and interests retained and reserved herein (collectively hereinafter referenced as the "Rights Reserved") shall burden the Property, Grantee and Grantee's successors and assigns, and shall benefit the Adjacent Property, Grantor and Grantor's successors and assigns; provided, however, that Grantor and Grantor's successors and assigns, with respect to the Rights Reserved, shall: (1) comply with all applicable laws, ordinances and regulations, including but not limited to all applicable regulatory, environmental and safety requirements at Grantor's sole cost and expense; (2) not materially interfere with the use by and operation and activities of Grantee on the Property, and Grantor shall use such routes and follow such procedures on the Property as result in the least damage and inconvenience to Grantee; and (3) promptly repair and restore to its original condition any of the Property, including, but not limited to playgrounds, roads, trails, 1 utilities, buildings, fences, fixtures, equipment, and any other property that may be altered, damaged or destroyed in connection with the exercise of the Rights Reserved by Grantor. TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Grantee, its successors and assigns FOREVER, subject to the Permitted Exceptions, Grantor does hereby bind itself and its successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof by, through or under Grantor, but not otherwise. Grantee hereby assumes and agrees to pay when due all ad valorem property taxes and assessments for the year 2012 and subsequent years. [THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK] Executed as of , 2012. GRANTOR: BLOOMFIELD HOMES, L.P., a Texas limited partnership By: Bloomfield Properties, Inc., a Texas corporation, its general partner Donald J. Dykstra, President THE STATE OF TEXAS § COUNTY OF § Before me the undersigned, on this day personally appeared Donald J. Dykstra, President of Bloomfield Properties, Inc., a Texas corporation, general partner of Bloomfield Homes, L.P., a Texas limited partnership, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed, and in the capacity therein stated. SEAL Given under my hand and seal of office this day of , 2012. Notary Public in and for the State of Texas EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY [See attached] EXHIBIT A LEGAL DESCRIPTION 5044-2 BEING part of a tract of land situated in the John C. Farris Survey, Abstract Number 331, Collin County, Texas the subject tract being a portion of a tract of land conveyed to said Nicholas Ross Properties, L.L.C., and identified as Tract B according to the Special Warranty Deed recorded in County Clerk File Number 20100930001049670 of the Official Public Records of Collin County, Texas (OPRCCT), the subject tract being more particularly described as follows; COMMENCING at a boundary angle point of West Crossing Phase 1, an addition to the City Of Anna Texas, according to the Final Plat recorded in Volume 2006, Page 22 (LRCCT), said point being the intersection of the southerly line of Hackberry Drive (a platted 80' ROW) and the east line of Drayton Drive (a platted 50' ROW), a 1/2" iron pin with a red cap stamped Tipton Engineering, Inc. found at corner; THENCE, along the said Hackberry Drive southerly line and around a non -tangent curve to the left having a central angle of 22° 02' 40", a radius of 680.00 feet and a chord of N 760 59' 20" E — 260.03 feet, an arc distance of 261.64 feet to the PLACE OF BEGINNING; THENCE, along the said Hackberry Drive southerly line and around a non -tangent curve to the left having a central angle of 12° 11' 30", a radius of 680.00 feet and a chord of N 590 52' 10" E —144.42 feet, an arc distance of 144.69 feet to the most westerly corner of Tract 2, Block A of said West Crossing Phase 1; THENCE, S 75° 24' 47" E, along a southerly line of said Tract 2, Block A, a distance of 4.34 feet; THENCE, along the easterly line of said Nicholas Ross Properties, L.L.C., Tract B and the westerly line of a tract of land conveyed to Meltex, Inc. according to the deed recorded in Volume 2929, page 325 (LRCCT) and along the approximate centerline of Slater Creek the following; S 05° 42' 54" E, a distance of 124.78 feet; S 17° 26' 54" E, a distance of 250,00 feet; S 33° 18' 54" E, a distance of 110.00 feet; S 39° 26' 54" E, a distance of 113.00 feet; S 02° 59' 06" W, a distance of 69.26 feet; S 56° 04'14" W, a distance of 146.42 feet to a point on the north line of a tract of land conveyed to William Bentley Powell according to the deed recorded in Volume 5279, Page 4123 (LRCCT); THENCE, S 890 55' 53" W, along a south line of said Nicholas Ross Properties, L.L.C., Tract B and said William Bentley Powell tract north line, a distance of 68.56 feet; THENCE, S 010 21' 20" E, along a west line of said William Bentley Powell tract and easterly line of said Nicholas Ross Properties, L.L.C., Tract B, a distance of 335.91 feet (deed call = 339.90 feet) to a point on the northerly line of Willow Creek Addition, an addition to the City Of Anna according to the Final Plat recorded in Cabinet Q, Page 352 (LRCCT), a 3/8" iron pin found at corner; THENCE, along the said Willow Creek Addition northerly line and the southerly line of said Nicholas Ross Properties, L.L.C. Tract B, the following; N 74° 43' 31" W, a distance of 34.51 feet; N 381 38' 52" W, a distance of 64.63 feet to a point from which a 3/8" iron pin found bears S 40° 06' 54" W — 4.75 feet; S 82° 36' 02" W, a distance of 247.81 feet to a 3/8" iron pin found at corner; N 01' 20' 07" W, a distance of 51.89 feet to an axle found at corner; THENCE, N 48° 25'30" E, a distance of 148.13 feet; THENCE, along a non -tangent curve to the left having a central angle of 95° 16' 40" a radius of 50.00 feet, and a chord of N 88° 12' 50" W-73.89 feet, an arc distance of 83.15 feet; THENCE, S 45° 51' 10" E, a distance of 20.00 feet; THENCE, N 88° 41'24" E, a distance of 101.06 feet; THENCE, N O1° 18'36" W, a distance of 536.00 feet; THENCE, N 02° 57' 28" E, a distance of 67.19 feet; THENCE, N 09° 47'56" W, a distance of 67.74 feet; THENCE, S 88° 41'24" W, a distance of 105.00 feet; THENCE, N 01° 18' 36" W, a distance of 35.70 feet; THENCE, along a tangent curve to the left having a central angle of 19° 51' 56" a radius of 275.00 feet, and a chord of N 11 ° 14'34" W-94.87 feet, an arc distance of 94.87 feet to the PLACE OF BEGINNING and containing 121,708 square feet or 2.794 acres of land. 1* 9 F O J I ' W d w x ZN 7�6 JN� \ yam{' •F. a}1 U1 b C O U f Sgp.O� 3.sum x PU U •- Ci y 0M, _�N ._1 tiff w_ �i � I awl ry��Fi � baa I — J � N� II T3� f - 0 3.&2l0.Q7 x N WZHHH�" s0 = I�I w lIn pp 4 . N m Ww8 n z w �N Q 3 t OL U °a Z� I I mt� 0. I II w x N U = Z O U E a� aha mdJ ; Q{ > W M i I n n n a •- Ci y N 7ryy1� n ^jam ry��Fi � tT Z 0 n v1Oi E a� aha mdJ ; Q{ > W M i I n n n a •- Ci y N 7ryy1� n Z 0 n v1Oi pp 4 . N m Ww8 n Q QQ U w �N Q mt� N EXHIBIT B LEGAL DESCRIPTION AND/OR DEPICTION OF THE ADJACENT PROPERTY [See attached] EXHIBIT B LEGAL DESCRIPTION 5044-2 WHEREAS, NICHOLAS ROSS PROPERTIES, L.L.C., a Texas limited liability company, is the owner of a tract of land situated in the John C. Farris Survey, Abstract Number 331, Collin County, Texas the subject tract being a portion of a tract of land conveyed to said Nicholas Ross Properties, L.L.C., and identified as Tract B according to the Special Warranty Deed recorded in County Clerk File Number 20100930001049670 of the Official Public Records of Collin County, Texas (OPRCCT), the subject tract being more particularly described as follows; BEGINNING at a boundary angle point of West Crossing Phase 1, an addition to the City Of Anna Texas, according to the Final Plat recorded in Volume 2006, Page 22 (LRCCT), said point being the intersection of the southerly line of Hackberry Drive (a platted 80' ROW) and the east line of Drayton Drive (a platted 50' ROW), a 1/2" iron pin with a red cap stamped Tipton Engineering, Inc. found at corner; THENCE, along the said Hackberry Drive southerly line and around a non -tangent curve to the left having a central angle of 34° 14' 14", a radius of 680.00 feet and a chord of N 700 53' 37" E — 400.32 feet, an arc distance of 406.34 feet to the most westerly corner of Tract 2, Block A of said West Crossing Phase 1; THENCE, S 75° 24' 47" E, along a southerly line of said Tract 2, Block A, a distance of 4.34 feet; THENCE, along the easterly line of said Nicholas Ross Properties, L.L.C., Tract B and the westerly line of a tract of land conveyed to Meltex, Inc. according to the deed recorded in Volume 2929, page 325 (LRCCT) and along the approximate centerline of Slater Creek the following; S 05° 42' 54" E, a distance of 124.78 feet; S 17° 26' 54" E, a distance of 250.00 feet; S 33° 18' 54" E, a distance of 110.00 feet; S 39° 26' 54" E, a distance of 113.00 feet; S 02° 59' 06" W, a distance of 69.26 feet; S 56° 04'14" W, a distance of 146.42 feet to a point on the north line of a tract of land conveyed to William Bentley Powell according to the deed recorded in Volume 5279, Page 4123 (LRCCT); THENCE, S 89° 55' 53" W, along a south line of said Nicholas Ross Properties, L.L.C., Tract B and said William Bentley Powell tract north line, a distance of 68.56 feet; THENCE, S 01- 21' 20" E, along a west line of said William Bentley Powell tract and easterly line of said Nicholas Ross Properties, L.L.C., Tract B, a distance of 335.91 feet (deed call = 339.90 feet) to a point on the northerly line of Willow Creek Addition, an addition to the City Of Anna according to the Final Plat recorded in Cabinet Q, Page 352 (LRCCT), a 3/8" iron pin found at corner; THENCE, along the said Willow Creek Addition northerly line and the southerly line of said Nicholas Ross Properties, L.L.C. Tract B, the following; N 74° 43' 31" W, a distance of 34.51 feet; N 38° 38' 52" W, a distance of 64.63 feet to a point from which a 3/8" iron pin found bears S 40° 06' 54" W — 4.75 feet; S 82° 36' 02" W, a distance of 247.81 feet to a 3/8" iron pin found at corner; N 01 ° 20' 07" W, a distance of 5 1. 89 feet to an axle found at corner; N 22° 15' 40" W, a distance of 73.44 feet to an axle found at corner; N 40° 51' 44" W, a distance of 127.91 feet to a 3/8" iron pin found at corner; N 30° 13' 20" W, a distance of 132.18 feet to a 3/8" iron pin found at corner; N 00° 45' 22" E, a distance o 106.37 feet; N 86° 59' 46' W, a distance of 78.63 feet to the southeast corner of Tract 1, Block A of said West Crossing Phase 1, a 3/8" iron pin found at corner; THENCE, N 070 39' 51" E, along the easterly line of said Tract 1, Block A, a distance of 51.94 feet; THENCE, N 000 07' 09" E, continuing along the easterly line of said Tract 1, Block A part of the way and along the east line of Lot 4, Block A of said West Crossing Phase 1, a distance of 214.00 feet to a point on the south line of Honeywell Drive, a 50" ROW, a 1/2" iron pin with a red cap stamped Tipton Engineering, Inc. found at corner; THENCE, S 890 52' 51" E, along the said Honeywell Drive south line, a distance of 140.00 feet; THENCE, continuing along the said Honeywell Drive south line and around a tangent curve to the left having a central angle of 010 41' 43', a radius of 845.00 feet and a chord of N 89° 16' 18" E — 25.00 feet, an arc distance of 25.00 feet to a 1/2" iron pin with a red cap stamped Tipton Engineering, Inc. found at corner; THENCE, N 00° 07' 09" E, along the east line of the previously mentioned Drayton Drive, a distance of 165.09 feet to the PLACE OF BEGINNING with the subject tract containing 469,338 Gross Square Feet or 10.7745 Gross Acres of Land with 53,008 + - Square feet located in the 100 Year Floodplain leaving a Net 416,330 Square Feet or 9.5576 + - Acres of Land. Bearings for this description are based on the controlling monuments found along the north line of the subject tract and the Final Plat of West Crossing Phase 1 recorded in Volume 2006, Page 22 (LRCCT).