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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 N 0 200 s 400 600 GRAPHIC SCALF iN FEET — DOFE ROAD ' ff 1 60 J. J � Jle cf 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 A . en C1 I Q to uP el. 4 TRACT ONE 0.207 ACRES - TRACT THREE tJ 0,0763 AC — DOFE ROAD ' ff 1 60 J. J � Jle cf 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 A . en C1 I Q to uP el. 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