Item 5DCity of Southlake, Texas
MEMORANDUM
June 17, 2003
To: Billy Campbell, City Manager
From: Pedram Farahnak, P.E., Director of Public Works, 481 -2308
Subject: Authorize the City Manager to execute a contract of sale and exchange of property
between City of Southlake and Westerra Southlake, L.P. for properties located on
the south side of Dove Road and west of White Chapel Boulevard.
Action Requested: Authorize the City Manager to execute a contract of sale and exchange of
property between City of Southlake and Westerra Southlake, L.P.
Background
Information: On September 10, 2002, the City Council approved the developer's
agreement for Solana Addition, Lot 1, Block 1 (Verizon Wireless Network
Observation and Control Center) located on the northwest corner of Dove
Road and Kirkwood Boulevard as part of the developer's agreement,
Verizon agreed to reconstruct and widen Dove Road from where the
state's construction ended through the Kirkwood Boulevard intersection to
its ultimate section. The reconstruction and widening of Dove Road was
recently completed.
During the review and approval of the site plan for the new Verizon
Network Operations Control Center located at the northwest corner of
Dove Road and Kirkwood Boulevard, Verizon was required to re-
construct Dove Road from where the state's construction ended through
the Kirkwood Boulevard intersection. The construction will be four travel
lanes with a raised median with a left turn lane.
With Verizon's final plat, sufficient right of way was dedicated along the
north side of Dove Road to accommodate the widening on the north side.
Sufficient right of way is not available along south side of Dove Road
along property owned by Westerra Southlake, L.P. The City staff has
negotiated an exchange of property with the Westerra Southlake, L.P. to
exchange the necessary right of way needed for Dove Road from the end of
the state's construction on N. White Chapel Boulevard from Westerra
Southlake, L.P. for some surplus right of way left at the southwest corner
of the intersection of Dove Road and N. White Chapel Boulevard after the
realignment of the intersection of Dove Road and N. White Chapel
Boulevard constructed in 1999.
The contract stipulates that the City will exchange four tracts of land, one
by fee simple and three by quit claim, that totals 0.6273 acres for one tract
from Westerra Southlake, L.P. by fee simple that totals 1.047 acres. Due
to the difference in size of the tracts, one tract has significantly more value
than the four tracts. A sketch showing these tracts of land is attached.
Financial
Considerations: The one tract that the City will receive is of greater value than the four
tracts that the City will convey.
Citizen Input/
Board Review: None
Legal Review: The City Attorney has prepared the contract of sale and exchange.
Alternatives: If the City does not exchange the properties, the City would have to
purchase the right of way necessary for the widening of Dove Road.
Supporting
Documents: Contract
Exhibit of Tracts
Staff
Recommendation: Authorize the City Manager to execute a contract of sale and exchange of
property between City of Southlake and Westerra Southlake, L.P.
Staff Contact: Pedram Farahnak, P.E., Director of Public Works, 481 -2308
Charlie Thomas, P.E., City Engineer, 481 -2175
Vicinity Map
Land Swap with Westerra
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GRAPHIC SCALF iN FEET
— DOFE ROAD
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TRACT F INE
1.047 ACRES
1C- TERRA SOUTI-LAKE, i- P-
Vol . 12615, p 309
D. R. T. 0. f.
TRACT TWO
0.123 ACRES
TRACT FOUR
0.221 ACRES
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TRACT ONE
0.207 ACRES
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TRACT THREE
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0,0763 AC
— DOFE ROAD
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TRACT F INE
1.047 ACRES
1C- TERRA SOUTI-LAKE, i- P-
Vol . 12615, p 309
D. R. T. 0. f.
TRACT TWO
0.123 ACRES
TRACT FOUR
0.221 ACRES
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CONTRACT OF SALE AND EXCHANGE
BETWEEN THE CITY OF SOUTHLAKE AND WESTERRA SOUTHLAKE, L.P.
A. THE CITY OF SOUTHLAKE, TEXAS (hereinafter called "CITY, "), owns the following
described real estate situated in Tarrant County, Texas, to wit:
Tract One:
BEING a tract of land situated in the T. Martin Survey, Abstract Number 1134,
Tarrant County, Texas, and being a portion of that tract of land described by deed to
City of Southlake, and recorded in Volume 7354, Page 934, Deed Records of
Tarrant County, Texas and being more particularly described by metes and bounds
as follows;
COMMENCING at a PK Nail found at the northeasterly corner of a tract of land
described by deed to Westerra Southlake, L.P. and recorded in Volume 12615,
Page 339, Deed Records of Tarrant County, Texas, also being in, the approximate
centerline of existing Pleasant Run — White Chapel Road (County Road No. 3016);
THENCE N44 0 33'44 "W, 35.07 feet, to a 5/8 inch iron rod with plastic cap stamped
"Carter & Burgess ", set for the POINT OF BEGINNING, in the westerly right -of -way
line of said Pleasant Run - White Chapel Road;
THENCE S89 0 57'48 "W, 214.33 feet, to a 5/8 inch iron rod with plastic cap stamped
"Carter & Burgess ", set;
THENCE N00 0 21'35 "W, 10.67 feet to a 5/8.inch iron rod with plastic cap stamped
"Carter & Burgess ", set in the southeriy sight -of -way line of Dove Road (County
Road No. 3080);
THENCE with the SOUtnedy right -of -way line of said Dove Road, N73 °42'52 "E,
224.58 feet to a 5,`8 inch iron rod with plastic cap stamped "Carter.& Burgess ", set at
the intersection of the southerly right -of -way line of said Dove Road and the westerly
right -of -way line of said Pleasant Run — White Chapel Road;
THENCE S00 0 54'45 "W, 73.52 feet with the westerly right -of -way line of said
Pleasant Run — White Chapel Road, to the POINT OF BEGINNING, and containing
0.207 acres of land, more or less;
such real estate together with all and singular the rights and appurtenances pertaining
thereto, including any right, title and interest of CITY in and to adjacent streets, alleys, or
rights -of -way Being herein referred to as the "CITY PROPERTY "; and
CITY may have a prescriptive interest as right -of -way in the following described real
estate situated in Tarrant County, Texas, to wit:
W:\ Southlake\ Agreements \Weslerra.051403.L.doc Page 1
Tract Two:
BEING a tract of land situated in the T. Martin Survey, Abstract Number 1134,
Tarrant County, Texas, and being a portion of that tract of land described by deed to
City of Southlake,. and recorded in Volume 7354, Page 934, Deed Records of
Tarrant County, Texas, and being more particularly described by metes and bounds
as follows:
COMMENCING at a PK Nail found at the northeasterly corner of a tract of land
described by deed to Westerra Southlake, L.P. and recorded in Volume 12615,
Page 339, Deed Records of Tarrant County, Texas, also being in the approximate
centerline of existing Pleasant Run — White Chapel Road (County Road No. 3016);
THENCE with the northerly line of said Westerra Southlake tract, S89 0 57'48 "W,
25.00 feet, to a 5/8 inch road with plastic cap stamped "Carter & Burgess ", set for
the POINT OF BEGINNING at northerly line of said Westerra Southlake tract and
the westerly right -of -way line of said Pleasant Run — White Chapel Road;
THENCE continuing with the northerly line of said Westerra Southlake tract, S89
57'48 "W, 213.77 feet, to a 5/8 inch iron rod with plastic cap stamped "Carter &
Burgess set;
THENCE N00 0 21'35 "W, 25.00 feet to a 5/8 inch iron rod with plastic cap stamped
"Carter & Burgess ", set;
THENCE N89 0 57'48 "E, 214.33 feet to a 5/8 inch iron rod with plastic cap stamped
"Carter & Burgess ", set in the westerly right -of -way line of said Pleasant Run —
White Chapel Road;
THENCE S00 0 54'45 "W, 25.00 feet with the westerly right -of -way line of said
Pleasant Run —White Chapel Road, to the POINT OF BEGINNING, and containing
0.123 acres of land, more or less; and
Tract Three:
BEING a tract of land situated in the R.D. Price Survey, Abstract No. 1207, Tarrant
County, Texas, and being a portion of a tract of land as described in Special
Warranty Deed to 300 Convent Street Corp. as recorded in Volume 12782, Page
110 of the Deed Records of Tarrant County, and being more particularly described
as follows:
COMMENCING at a Texas Department of Transportation concrete monument
found at the most southeasterly corner of a corner clip at the intersection of the
northerly right -of -way line of Dove Road with the easterly right -of -way line of State
Highway 114 (variable width right -of -way)
W:1Southlake\ Agreements \Westerra.051403.L.doc Page 2
THENCE, South 89 degrees 32 minutes 23 seconds East, a distance of 1,472.14
feet to a one -half inch iron rod found with "Huitt- Zollars" cap;
THENCE, South 89 degrees 08 minutes 45 seconds East, a distance of 187.65 feet
to five- eighths inch rod found with "Carter & Burgess" cap;
THENCE, South 00 degrees 10 minutes 50 seconds West a distance of 25:00 feet
to a PK nail found in the centerline of Dove Road;
THENCE, South 89 degrees 08 minutes 45 seconds East along the centerline of
Dove Road a distance of 140.37, feet to a PK nail found at the POINT OF
BEGINNING and being the beginning of a curve to the left having a radius of
1,292.00 feet;
THENCE, in a easterly direction along said curve to the left with a central angle of
00 degrees 41 minutes 42 seconds, a radius of 1,292.00 feet, an arc distance of
15.67 feet a long chord that bears North 75 degrees 51 minutes 06 seconds East, a
distance of 15.67 feet to a PK nail found;
THENCE, North 74 degrees 15 minutes 17 seconds East, a distance of 141.29 feet
to a 5/8 inch iron rod found with "Huitt- Zollars" cap on an easterly line of said 300
Convent Street Corp. tract, also being on the west line of a tract of land as
described in instrument to the City of Southlake as recorded'in Volume 7354, Page
934, Deed Records Tarrant County, Texas;
THENCE, South 00 degrees 30 minutes 50 seconds West, along west line of said
City of Southlake tract, a distance of 44.62 feet to a PK nail set with shiner on the
centerline of Dove Road;
THENCE, North 89 degrees 08 minutes 45 seconds West, along said centerline of
Dove Road, a distance of 151.06 feet to the POINT OF BEGINNING and
CONTAINING 0.0763 acres of land, more or less; and
Tract Four:
BEING a tract of land situated in the T. Martin Survey, Abstract Number 1134,
Tarrant County, Texas, and being a portion of that tract of land described by deed to
Westerra Southlake, L.P., recorded in Volume 12615, Page 339, Deed Records of
Tarrant County, Texas, and being more particularly described by metes and bounds
as follows:
COMMENCING at a PK Nail found at the northeasterly corner of said Westerra
tract, in the approximate centerline of existing- Pleasant Run- White Chapel Road
(County Road No. 3016);
THENCE with the northerly line of said Westerra tract, S89 0 57'48 "W, 25.00 feet, to
W:1Southlake\ Agreements \Westerra.051403.L.doe Page 3
a 5/8 inch iron rod with plastic cap stamped "Carter & Burgess ", set for the POINT
OF BEGINNING at northerly line of said Westerra tract and the westerly right -of -way
line of said Pleasant Run — White Chapel Road;
THENCE S00 0 54'45 "W, 25.00 feet with the westerly right -of -way line of said
Pleasant Run — White Chapel Road, to a 5/8 inch iron rod with plastic cap stamped
"Carter & Burgess ", set
THENCE S89 0 57'48 "W, 442.49 feet to a 5/8 inch iron rod with plastic cap stamped
"Carter & Burgess ", set at the beginning of a non - tangent curve to the left;
THENCE with said non - tangent curve to the left, an arc distance of 96.32 feet,
through a central angle of 04014'19 ", a radius of 1302.00 feet, the long chord of
which bears N77 0 10'59 "E, 96.30 feet;
THENCE N73 0 42'52 "E, 13.15 feet;
THENCE N89 "E, 33637 feet to the POINT OF BEGINNING, and containing
0.221 acres of land, more or less;
such interest being herein referred to as the "PRESCRIPTIVE RIGHT -OF- WAY ", and such
real estate including any right, title and interest of CITY being herein referred to as the
"RIGHT OF WAY PROPERTY."
B. WESTERRA SOUTHLAKE, L.P. (hereinafter called "WESTERRA, ") owns the
following described real estate situated in Tarrant County, Texas, to wit:
Tract Five:
BEING a tract of land situated in the James J. West Survey, Abstract Number 1620,
Tarrant County, Texas, and being a portion of that tract of land described by deed to
Westerra Southlake, L.P., and recorded in Volume 12615, Page 339, Deed Records
of Tarrant County, Texas, and being more particularly described by metes and
bounds as follows:
COMMENCING at the northeasterly corner of said Westerra Southlake tract, at a
PK nail found in the approximate centerline of existing Pleasant Run -White Chapel
Road (County Road 3016);
THENCE S89 °57'48 "W, 36'1.38 feet with the northerly line of said Westerra
Southlake tract, to a 5/8 inch iron with plastic cap stamped "Carter & Burgess set
for the POINT OF BEGINNING,
THENCE S73 0 42'52 "W, 13.15 feet to the beginning of anon- tangent curve to the
right;
WASouthlake\ Agreements \Westerra.051403.L.doc Page 4
THENCE with said non - tangent curve to the right, an arc distance of 348.37 feet,
through a central angle of 15 1 19'50 ", having a radius of 1302.00 feet, and having a
long chord of S82 0 43'04 "W, 347.34 feet to a 5/8 inch iron rod with plastic cap
stamped "Carter & Burgess ", set;
THENCE N89 0"W, 753.80 feet to a 5/8 inch iron rod with plastic cap stamped
"Carter & Burgess ", set;
THENCE N00 0 06'59 "E, 42.87 feet to a 5/8 inch rod with plastic cap stamped "Carter
& Burgess ", set in the northerly line of said Westerra Southlake tract;
THENCE N89 0 57'48 "E, 1110.86 feet with the northerly line of said Westerra
Southlake tract, to the POINT OF BEGINNING, and containing 1,047 acres of land,
more or less,
such real estate together with all and singular the rights and appurtenances pertaining
thereto, including any right, title and interest of WESTERRA in and to adjacent streets,
alleys or rights -of -way being herein referred to as the "WESTERRA PROPERTY."
C. WESTERRA hereby agrees to sell and convey the WESTERRA PROPERTY to
CITY. CITY hereby agrees to sell and convey the CITY PROPERTY to Westerra and to
abandon any and all of its interest in and quitclaim the PRESCRIPTIIVE RIGHT- OF-WAY to
WESTERRA.
This Contract is executed upon the following terms and conditions:
1. CITY agrees, with respect of the CITY PROPERTY and the RIGHT OF WAY
PROPERTY, that it will, at its sole expense, furnish to WESTERRA within 15 days after the
effective date hereof:
a. a commitment for an Owner's Title Policy issued by Safeco Land Title,
Southlake, Tarrant. County, Texas, attention: Gayle G. Williams, in the full amount of the
purchase price, committing to insure WESTERRA'S fee simple title to the CITY
PROPERTY and the RIGHT OF WAY PROPERTY, and containing no exceptions except
Permitted Encumbrances; and
b. an on- the - ground survey of the CITY PROPERTY and the RIGHT OF
WAY PROPERTY prepared by a licensed surveyor and in form and content reasonably
acceptable to WESTERRA.
2. WESTERRA agrees, with respect of the WESTERRA PROPERTY, that it will,
at its sole expense, furnish to CITY within 15 days after the effective date hereof:
a. a commitment for an Owner's Title Policy issued by Safeco Title,
Southlake, Tarrant County, Texas, in the full amount of the purchase price, committing to
insure CITY'S fee simple title to the WESTERRA PROPERTY, and containing no
W; ISouthlakelAgreementslWesterra .051403.L.doc Page 5
exceptions except Permitted Encumbrances; and
b. an on- the - ground survey of the WESTERRA PROPERTY prepared by
a licensed surveyor and in form and content reasonably acceptable to CITY.
3. The parties make the following representations and warranties, which
representations and warranties shall be deemed made by the respective parties also as of
the Closing Date:
a. WESTERRA warrants and represents to CITY that from the date
hereof to Closing or an earlier termination hereof, it will not further encumber title to the
WESTERRA PROPERTY.
b. CITY warrants and represents to WESTERRA that from the date
hereof to Closing or an earlier termination hereof .it will not further encumber title to the
CITY PROPERTY or the RIGHT OF WAY PROPERTY.
C. For the purpose of this Contract, the standard exceptions contained in
the usual form of Texas Owner's Title Policy shall be Permitted Encumbrances, provided
that:
L The boundary and survey exceptions shall be deleted;
ii. The exception as to restrictive covenants shall be endorsed
"None of Record "; and
iii. The exception as to the lien for taxes shall be limited to the year
of closing and shall be endorsed "Not Yet Due and Payable."
i
Zoning ordinances, and such other exceptions as may be approved in
writing by the acquiring party shall be Permitted Encumbrances.
d. CITY represents and warrants that it will, as part of the consideration
for the WESTERRA PROPERTY, abandon and quitclaim to WESTERRA any interest CITY
may have in the PRESCRIPTIVE RIGHT -OF -WAY IN THE RIGHT -OF -WAY PROPERTY
at Closing.
e. Each party represents and warrants to the other that it has not
incurred and will not incur any liability for agent's commissions or real estate brokerage
flees associated with this Contract.
4. a. In the event there exists any roll back or other deferred taxes which
are retroactive to the period of WESTERRA'S ownership of the WESTERRA PROPERTY
or any time prior thereto pursuant to a change in zoning, use, ownership or otherwise, such
retroactive taxes shall remain the obligation of WESTERRA. This provision shall survive
the Closing.
W: 1ScuthlakeWA greements \Westerra.051403.L.doc Page 6
b. In the event there exists any roll back or other deferred taxes which
are retroactive to the period of CITY'S ownership of the CITY PROPERTY or its
PRESCRIPTIVE RIGHT -OF -WAY in the RIGHT OF WAY PROPERTY or any time prior
thereto pursuant to a change in zoning, use, ownership or otherwise, such retroactive taxes
shall remain the obligation of CITY. This provision shall survive the Closing.
5. WESTERRA will have ten days after receipt of the title commitment and
survey to review and approve same. In the event any portion of the title commitment or
survey is unacceptable to WESTERRA, then WESTERRA shall, within the 10 day period,
give CITY written notice of this fact. CITY may, at CITY'S option, promptly undertake to
eliminate or modify all the unacceptable portions to the reasonable satisfaction of
WESTERRA. In the event CITY chooses not to do so within ten days after receipt of
WESTERRA'S written notice, WESTERRA may terminate this Contract within five days
after such 10 -day period, and the Contract shall thereupon by null and void for all
purposes. In the event that WESTERRA fails to terminate this Contract within such time
period, WESTERRA shall be deemed to have accepted any such matters that were not
cured by CITY. Notwithstanding the foregoing, any items deemed herein to be "Permitted
Encumbrances" shall be acceptable and may not be the basis for" any objections.
Furthermore, CITY shall not have any obligation or duty to undertake to eliminate or modify
any objections of WESTERRA, including the obligation to expend any funds. Any curative
work shall be at CITY'S sole option and discretion.
6. CITY will have ten days after receipt of the title commitment and survey to
review and approve same. In the event any portion of the title commitment or survey is
unacceptable to CITY, then CITY shall, within the 10 day period, give WESTERRA written
notice of this fact. WESTERRA may, at WESTERRA'S option, promptly undertake to
eliminate or modify all the unacceptable portions to the reasonable satisfaction of CITY. In
the event WESTERRA chooses not to do so within ten days after receipt of CITY'S written
notice, CITY may terminate this Contract within 5 days after such 10 -day period, and the
Contract shall thereupon by null and void for all purposes. In the event that CITY fails to
terminate this Contract within such time period, CITY shall be deemed to have accepted
any such matters that were not cured by WESTERRA. Notwithstanding the foregoing, any
items deemed herein to be "Permitted Encumbrances" shall be acceptable and may not be
the basis for any objections. Furthermore, WESTERRA shall not have any obligation or
duty to undertake to eliminate or modify any objections of CITY, including the obligation to
expend any funds. Any curative work shall be at WESTERRA'S sole option and discretion.
7. The Closing hereunder shall take place on or before
, provided if on such date there are title objections relating to the
WESTERRA PROPERTY or the CITY PROPERTY which have not yet been cured, the
Closing date may be postponed upon mutual agreement of both parties not less than five
nor more than 45 days to such date as shall be designated by the party conveying the
property to which title is not yet approved orto which such title objections relate, by written
notice to the other party.
W:1 Southlaket P. greementslWesterra.051403.L.doc Page 7
8. At the Closing:
a. CITY shall deliver to WESTERRA a Special Warranty Deed, in
appropriate form satisfactory to WESTERRA'S counsel, to convey the CITY PROPERTY to
WESTERRA, free and clear of any liens or encumbrances except those expressly
permitted hereby; and
b. WESTERRA shall deliver to CITY a Special Warranty Deed, in
appropriate form satisfactory to CITY'S counsel, to convey the WESTERRA PROPERTY to
CITY, free and clear of any liens or encumbrances except those expressly permitted
hereby.
C. CITY shall deliver to WESTERRA, in appropriate form satisfactory to
WESTERRA'S Counsel, a Quit Claim Deed quitclaiming CITY'S interest, excepting and
reserving only a permanent utility maintenance and operation easement for the existing
water utility pipelines in Tract 4, of the PRESCRIPTIVE RIGHT -OF -WAY to WESTERRA.
9. In the event that WESTERRA is unable to convey title to the WESTERRA
PROPERTY in accordance with paragraph 8.a. of this Contract, CITY, as its sole and
exclusive remedy, may terminate this Contract by written notice delivered to WESTERRA
on or prior to the scheduled Closing date (as deferred by any postponement in accordance
with paragraph 7 hereof); otherwise, CITY shall be conclusively deemed to have accepted
the title of WESTERRA.
10. In the event that CITY is unable to convey title to the CITY PROPERTY in
accordance with paragraph 8.b. of this Contract, WESTERRA, as its sole and exclusive
remedy, may terminate this Contract by written notice delivered to CITY on or prior to the
scheduled Closing date (as deferred by any postponement in accordance with paragraph 7
hereof); otherwise, WESTERRA shall be conclusively deemed to have accepted the title of
CITY.
11. In the event CITY shall fail to fully and timely perform any of its obligations
hereunder, or fail to consummate the exchange of the WESTERRA PROPERTY for the
CITY PROPERTY and PRESCRIPTIVE RIGHT -OF -WAY except because of
WESTERRA'S termination of this Contract or because of WESTERRA'S default,
WESTERRA may, as its sole and exclusive remedy, either enforce specific performance of
this Contract or terminate this Contract by written notice delivered to CITY on or prior to the
Closing Date.
12. In the event WESTERRA should fail to fully and timely perform any of its
obligations hereunder or consummate the exchange of the WESTERRA PROPERTY, for
the CITY PROPERTY and PRESCRIPTIVE RIGHT -OF -WAY, except because of CITY'S
termination of the Contract or because of CITY'S default, CITY may, as its sole and
exclusive remedy, either seek specific performance pursuant to this Contract or terminate
this Contract by written notice delivered to WESTERRA on or prior to the Scheduled
Closing Date.
WASouthlaWAgreementsMesterra .051403.LAoc Page 8
13.. Within 30 days after the effective date of this Contract, each party may
complete or cause to be completed inspections of the WESTERRA PROPERTY, the
RIGHT OF WAY PROPERTY and the CITY PROPERTY by inspectors of each party's
choice. Inspections may include but are not limited to:
a. physical property inspections;
b. economic feasibility studies; and
C. any type of environmental assessment or engineering study including
the performance of tests such as soils tests or air sampling.
Each party shall permit the other party's inspector's access to the Property at
reasonable times. If either party determines in such party's sole judgment that the Property
is not suitable for any reason for the party's intended use or is not in satisfactory condition
then such party may terminate this Contract by providing written notice of termination and
copies of all reports of inspections, studies, or assessments completed or caused to be
completed by the party under this paragraph. Each party (an INDEMNITOR) hereby
agrees to indemnify and hold harmless the other party (the INDEMNITEE) from and
against any and. all claims, damages or obligations incurred by or charged against the
INDEMNITEE resulting from or related to any inspections performed by or on behalf of the
INDEMNITOR.
14. Rents and lease commissions, interest, and ad valorem taxes for the then
current year shall be prorated at the closing effective as of the date of Closing. If the
Closing shall occur before the tax rate is fixed for the then current year, the apportionment
of the taxes shall be upon the basis of the tax rate for the preceding year applied to, the
latest assessed valuation but any difference in actual and ad valorem taxes for the year of
sale actually paid by the acquiring party shall be adjusted between the parties upon receipt
of written evidence of the payment thereof.
15. CITY shall pay all fees for recordation of the Deeds, the cost of an Owner's
Title Policy for the CITY PROPERTY, the RIGHT - OF WAY PROPERTY and the
WESTERRA PROPERTY, and escrow fees of the Title Company incident to the Closing.
Each party shall pay its own fees for legal counsel.
16. This Contract embodies the complete agreement between the parties hereto
and cannot be varied or terminated except by the written agreement of the parties.
17. Any notice required or permitted to be delivered hereunder shall be deemed
to be delivered, whether actually received or not, when deposited in the United States mail,
postage prepaid, registered mail, return receipt requested, addressed to WESTERRA or
the CITY, as the case maybe, as follows:
W:1 SouthlakeWgreementslWesterra .051403.L.doe Page 9
WESTERRA CITY'S ADDRESS:
ADDRESS:
Westerra Southlake, L.P. City of Southlake
3030 LBJ Freeway, LB 6, Suite 1500 1400 Main Street, Suite 460
Dallas, Texas 75234 Southlake, Texas 76092
Attn: Rick L. Croteau Attn: City Manager
With a copy to
Munsch Hardt Kopf & Harr, P.C.
4000 Fountain Place
1445 Ross Avenue
Dallas, Texas 75202
Attn: Karen Cowden
18. a. WESTERRA agrees and accepts the transfer by the CITY to
WESTERRA of the CITY PROPERTY and the PRESCRIPTIVE RIGHT -pF -WAY as total
compensation for the WESTERRA PROPERTY. CITY agrees and accepts the transfer by
WESTERRA to CITY of the WESTERRA PROPERTY as total compensation for the CITY
PROPERTY and the PRESCRIPTIVE RIGHT -OF -WAY.
b. WESTERRA understands and agrees that the CITY has made no
representation or warranty to WESTERRA with regard to the suitability for development of
the remainder of WESTERRA'S PROPERTY.
19. WESTERRA and the CITY both represent and warrant to each other as
follows:
a. Each has carefully read this Contract and knows the contents thereof,
and that each has fully conferred with its counsel and has executed this instrument of its
own freewill and volition.
b. Each person who executes this Contract has the authority to do so,
both individually and on behalf of the party for whom executed, and agrees to indemnify
and hold harmless each other party from any claim that such authority did not exist.
20. The effective date of this Contract will be the date the last party executes the
Contract.
21. Any of the representations, warranties, covenants, and contracts of the
parties, as well as any rights and benefits of the parties, that relate to the condition of the
Property, that are performable after the date of Closing, or that pertain to a period of time
following the closing of the transaction contemplated by this Contract, shall survive the
Closing for a period of two years.
22. This Contract shall be construed under and in accordance with the laws of
the State of Texas, and all obligations of the parties created hereunder are performable in
W:1 5outhlakel AgreementslWesterra .051403.L.doc Page 10
Tarrant County, Texas. Should any action be brought for the enforcement or interpretation
of this Contract, venue shall be in Tarrant County, Texas.
23. This Contract shall be binding upon and inure to the benefit of the parties and
their respective heirs, executors, administrators, legal representatives, successors and
assigns where permitted by this Contract.
24. This Contract constitutes the sole and only contract of the parties and
supersedes any prior understandings or written or oral contracts between the parties
respecting the WESTERRA PROPERTY, CITY PROPERTY and the PRESCRIPTIVE
RIGHT -OF -WAY.
25. If WESTERRA or CITY is a prevailing party in any legal proceeding brought
under or with relation to this Contract, such party shall be entitled to recover from the non -
prevailing party all costs of such proceeding and reasonable attorneys' fees and costs.
26. In this Contract, time is of the essence and compliance with the times for
performance is required.
27. Special Conditions: None.
EXECUTED in multiple originals effective the day of
2003.
(FILL IN THE DATE LAST PARTY SIGNS).
WESTERRA SOUTHLAKE, L.P., a
Delaware limited partnership
By: Westerra Management, L.L.C., its
Authorize representative
By:- d
Name: Marcus L. Scro s
Title: Chief Financial Officer
CITY OF SOUTHLAKE
BY:
Billy Campbell
City Manager
WA Southlake WgreementsMesterra.051403.L.doc Page 11