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R-91-1667 - 10/22/1991WHEREAS, the Round Rock Police Department, has outgrown its present facility, and WHEREAS, Heritage Center office complex would be suitable for the police department and other city departments, and WHEREAS, the Heritage Center is available for purchase at a favorable price, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a Commercial Improved Property Purchase And Sale Agreement, a copy of said agreement being attached hereto and incorporated herein for all purposes. RESOLVED this 22nd day of October, 1991. ATTEST: RS10221C LAND, City Secretary RESOLUTION NO. 11067R) MIRE ROBINSON, Mayor City of Round Rock, Texas COMMERCIAL IMPROVED PROPERTY PURCHASE AND SALE AGREEMENT This Purchase and Sale Agreement (this "Agreement ") is made by and between Texas American Land Corporation Employee Profit Sharing Trust ( "Seller ") and the City of Round Rock, Texas ( "Purchaser "). 1. Property. Upon and subject to the following terms and conditions, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase and accept from Seller, the following real and personal property (collectively, the "Property "): (a) all of that certain real property legally described on Exhibit "A" attached hereto and made a part hereof for all purposes (the "Land "); (b) all buildings and improvements located on the Land (the "Improvements "); (c) all equipment and fixtures owned by Seller and attached to, located on or used primarily in connection with the Land or the Improvements (collectively, the "Personal Property "); (d) the tenant leases in effect at Closing (as hereinafter defined) (the "Leases ") of any portion of the Land or the Improvements and the security deposits held by Seller under the Leases which have been received by Seller and not forfeited or returned to tenants (the "Security Deposits "); and (e) to the extent that they are assignable, all right, title and interest of Seller, if any, in and to (i) any land lying in the bed of any street, road, avenue or centerline thereof, (ii) all easements, rights of way, covenants and other rights appurtenant to the Land and the Improvements, (iii) licenses, franchises, and permits relating to the operation of the Property (the "Intangibles "); and (iv) maintenance, management and service contracts relating to the operation of the Property (the "Contracts "). 2. Closing. the consummation of the purchase and sale of the Property contemplated under this Agreement (the "Closing ") shall occur on a date mutually agreed upon by Purchaser and Seller, but in no event later than November 15, 1991 (the "Closing Date "). The Closing shall take place at the offices of the Title Company specified in paragraph 4.(a) below, unless otherwise agreed by Purchaser and Seller. 3. Conveyance. Subject to the terms and provisions set forth in this Agreement, title to the Property shall be transferred and conveyed to Purchaser at Closing by: (a) Special Warranty Deed (the "Deed "), subject to the Permitted Exceptions (as hereinafter defined), in the form attached hereto as Exhibit "B "; and (b) Bill of Sale, Assignment of Leases, Intangibles And Contracts And Assumption Agreement (the "Bill of Sale ") transferring the Personal Property, the Leases, the Security Deposits and the Contracts to Purchaser and containing an assumption by Purchaser of all obligations thereunder, in the form attached hereto as Exhibit C. 4. Purchase Price. The purchase price for the Property shall be Four Hundred Thousand and no /100 Dollars ($400,000) (the "Purchase Price "). The Purchase Price shall be paid as follows: (a) Within one (1) day after the final execution of this Agreement by all parties, Purchaser shall deliver to Longhorn Title Company (the "Title Company ") as earnest money hereunder, the sum of $ 25,000 (the "Earnest Money ") in Cash (as hereinafter defined), which shall be held by the Title Company in an interest bearing account and delivered in accordance with the provisions of this Agreement. Upon the expiration of the Inspection Period (as hereinafter defined), unless Purchaser has terminated this Agreement in accordance with the terms of Paragraph 9 hereof or except as provided by a specific clause in this Agreement to the contrary, the Earnest Money shall be considered "at risk" and not subject to return to Purchaser. Upon Closing, the Earnest Money and all interest accrued thereon shall be applied toward payment of the Purchase Price on the Closing Date. Any interest on or other income accruing from the Earnest Money shall become a part of the Earnest Money and be disbursed together with and to the party entitled to the Earnest Money. Failure to deliver the Earnest Money within the time frame set forth above shall, at Seller's option, be deemed an event of default hereunder by Purchaser. Purchaser's federal taxpayer identification number or social security number, as appropriate, is (b) The balance of the Purchase Price, plus or minus prorations, adjustments and credits as provided for herein, shall be paid to Seller at Closing in cash, either by wire transfer of immediately available funds or a certified check made payable to the order of Seller, at Seller's option ( "Cash "). 5. Survey. Attached hereto as Exhibit "D" is a copy of a survey (the "Survey ") of the Property. All matters shown on the Survey are acceptable to Purchaser and will be part of the Permitted Exceptions (as hereinafter defined). 6. Title Commitment. Attached hereto as Exhibit "E" is a copy of a title commitment (the "Title Commitment ") covering the Property. All exceptions to title shown in Schedule B of the Title Commitment are acceptable to Purchaser (herein called the "Permitted Exceptions "). -2- 7. Objections and Permitted Exceptions. (a) Seller shall have until Closing in which to satisfy all exceptions to title listed in Schedule C of the Commitment, however, it is agreed, Seller has no obligation or duty to satisfy said exceptions. If, for any reason, Seller does not satisfy the Schedule C exceptions, then Purchaser's sole remedy is to terminate this Agreement by written notice to Seller ( "Termination Notice). Upon such a termination, the Earnest Money shall be returned to Purchaser and except with respect to the obligations set forth in Paragraph 8(b) and the last sentence of Paragraph 9 hereof (collectively the "Special Obligations ") neither party shall have any further rights or obligations pursuant to this Agreement. Unless any such uncured objection or defect in title prohibits and /or subjects Seller to liability for the conveyance of the Property by Seller (in which event Purchaser shall be deemed to have terminated this Agreement whether or not the Termination Notice was sent), the failure of Purchaser to so terminate this Agreement by such written notice shall be deemed a waiver by Purchaser of such uncured objections or defects and Purchaser shall accept such title to the Property as Seller is able to convey without offset, reduction or abatement in the Purchaser Price (with the uncured objections or defects becoming additional Permitted Exceptions hereunder). (b) In the event Purchaser should learn of any defects or objections to Seller's title not set forth in the Survey or the Title Commitment, then Purchaser, within one (1) day following the date Purchaser learns of such defect or objection, shall have the right to object to such matters by written notice to Seller. In the event Seller is unable or unwilling to cure or remove such objection or defect to the satisfaction of Purchaser and the Title Company on or before the Closing Date, Purchaser, at Purchaser's option and as Purchaser's sole and exclusive remedy may, on or before the Closing Date, send a Termination Notice to Seller terminating this Agreement, whereupon the Earnest Money, together with all interest accrued thereon, shall be refunded to Purchaser, and, except for the Special Obligations, neither party shall have any further rights or obligations pursuant to this Agreement. Unless any such uncured defect or objection prohibits and /or subjects Seller to liability for the conveyance of the Property by Seller (in which event Purchaser shall be deemed to have terminated this Agreement whether or not such Termination Notice was sent), the failure of Purchaser to so terminate this Agreement by such written notice shall be deemed a waiver by Purchaser of such uncured objection or defect and Purchaser shall accept such title to the Property as Seller is able to convey without offset, reduction or abatement in the Purchase Price (with the uncured objections or defects becoming additional Permitted Exceptions hereunder). -3- 8. Inspection. (a) Seller has already delivered to Purchaser the following items ( "Items "): (i) Copies of Leases pertaining to the Property, to the extent copies are within Seller's possession; (ii) Copies of the Contracts pertaining to the Property, to the extent copies are within Seller's possession. (b) Purchaser shall have the right, at Purchaser's sole cost and expense, to examine and inspect the Land, the Improvements and the Personal Property, if any, at any reasonable time. Purchaser shall and does hereby indemnify and hold Seller harmless from and against any and all liability, loss, cost, expense and damage caused to or incurred by Seller or the Property by any acts or omissions of Purchaser (or its agents or representatives) in connection with such inspection. Any information relating to the Property provided by Seller to Purchaser, including, but not limited to, the Items, or obtained by Purchaser in the course of its inspection shall be treated as confidential information by Purchaser, to be made available only to such persons as may be reasonably necessary to properly evaluate the Property and /or as may be needed by Purchaser to secure financing for the Property. (c) Purchaser acknowledges that Seller does not own the Property but merely has entered into an Agreement to purchase the Property. Presently, the Property is owned by Realty Alliance of Texas, Ltd. Seller makes no representation or warranty of any kind, express or implied, regarding the accuracy or completeness of the Items, the Survey, the Title Commitment or other information furnished to Purchaser. Pursuant to instructions from Realty Alliance of Texas, Ltd., Seller hereby notifies Purchaser that Seller, Realty Alliance of Texas, Ltd., Bonnet Resources Corporation and Bank One, Texas, N.A., shall not be deemed to have made any representations or warranties with respect to any information provided to Purchaser by Seller. Purchaser hereby agrees to indemnify and hold Seller harmless from any claims and liabilities asserted by any party who relies on the Items, the Survey, the Title Commitment or other information provided by Seller and pertaining to this Agreement and /or the Property. 9. Review and Inspection Period. Purchaser shall have until October 22, 1991 at 5:00 p.m. (the "Inspection Period ") within which to inspect the Property and conduct, at Purchaser's sole cost -4- and expense, such engineering, soils, environmental, marketing and economic feasibility studies as Purchaser shall deem appropriate, and to decide, in Purchaser's sole discretion, whether the Property is satisfactory to Purchaser so as to proceed with the Closing; provided, however, in no event shall the Inspection Period extend beyond the Closing Date. Such inspection shall be conducted by Purchaser on business days during normal business hours. Purchaser acknowledges and agrees that the Inspection Period will provide Purchaser with a substantial and adequate opportunity to review the books and records on site at the Property, to examine the Leases, to inspect and test the physical and environmental condition of the Land, the Improvements and the Personal Property, and to examine, study and otherwise become adequately familiar with the physical and financial condition of the Property. Neither Seller nor its predecessors in title to the Property shall be deemed to represent or warrant any fact or condition with respect to the Property which may be included or contained in any information provided by Seller or furnished to Purchaser for review, including, but not limited to, the Items. If, based upon its review, Purchaser decides not to proceed to purchase the Property under this Agreement, then Purchaser shall give written notice to Seller within said Inspection Period and this Agreement shall terminate, whereupon the Earnest Money, together with all interest accrued thereon, less $100.00 payable to Seller as independent consideration for the Inspection Period, shall be refunded to Purchaser and, except for the Special Obligations, neither party shall have any further rights or obligations pursuant to this Agreement. If the written notice of termination is not given to Seller within the Inspection Period, this condition and any and all objections with respect to the review and inspection described herein shall be deemed to have been waived by Purchaser for all purposes. In the event that the transactions contemplated by this Agreement do not close for any reason other than Seller's default, Purchaser shall: (a) deliver to Seller copies of any and all reports and analyses conducted by Purchaser, its agents or representatives with respect to the Property; (b) redeliver to Seller the Items; and (c) at its sole cost and expense, repair or cause to be repaired any damage to the Property caused by Purchaser, its agents or representatives, and restore the Property to as near the condition thereof existing prior to any entry by Purchaser, its agents or representatives as may be practicable. 10. No Representations or Warranties by Seller. PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO: (A) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY; (B) THE INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY -5- FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON; (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (E) THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; OR (F) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY. WITHOUT LIMITING THE FOREGOING, SELLER DOES NOT AND HAS NOT MADE ANY REPRESENTATION OR WARRANTY REGARDING THE PRESENCE OR ABSENCE OF ANY HAZARDOUS SUBSTANCES (as hereinafter defined) ON, UNDER OR ABOUT THE PROPERTY OR THE COMPLIANCE OR NONCOMPLIANCE OF THE PROPERTY WITH THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, THE SUPERFUND AMENDMENT AND REAUTHORIZATION ACT, THE RESOURCE CONSERVATION RECOVERY ACT, THE FEDERAL WATER POLLUTION CONTROL ACT, THE FEDERAL ENVIRONMENTAL PESTICIDES ACT, THE CLEAN WATER ACT, THE CLEAN AIR ACT, THE TEXAS NATURAL RESOURCES CODE, THE TEXAS WATER CODE, THE TEXAS SOLID WASTE DISPOSAL ACT, THE TEXAS HAZARDOUS SUBSTANCES SPILL PREVENTION AND CONTROL ACT, ANY SO CALLED FEDERAL, STATE OR LOCAL "SUPERFUND" OR "SUPERLIEN" STATUTE, OR ANY OTHER STATUTE, LAW, ORDINANCE, CODE, RULE, REGULATION, ORDER OR DECREE REGULATING, RELATING TO OR IMPOSING LIABILITY (INCLUDING STRICT LIABILITY) OR STANDARDS OF CONDUCT CONCERNING ANY HAZARDOUS SUBSTANCES (collectively, the "Hazardous Substance Laws "). For purposes of this Agreement, the term "Hazardous Substances" shall mean and include those elements or compounds which are contained on the list of hazardous substances adopted by the United States Environmental Protection Agency and the list of toxic pollutants designated by Congress or the Environmental Protection Agency or under any hazardous substance laws. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT BEING GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER WILL BE PURCHASING THE PROPERTY PURSUANT TO ITS INDEPENDENT EXAMINATION, STUDY, INSPECTION AND KNOWLEDGE OF THE PROPERTY AND PURCHASER IS RELYING UPON ITS OWN DETERMINATION OF THE VALUE OF THE PROPERTY AND USES TO WHICH THE PROPERTY MAY BE PUT, AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS OR WILL BE OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE AND WILL NOT BE OBLIGATED TO MAKE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND SELLER MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. The occurrence of the Closing shall constitute an acknowledgement by Purchaser that the Property was accepted without representation or warranty, express or implied (except for the special warranties of title set forth in the Deed), and otherwise in an "AS IS ", "WHERE IS ", and "WITH ALL FAULTS" condition based solely on Purchaser's own inspection. The acknowledgments and agreements of Purchaser set forth in this Paragraph 10 shall survive the Closing and shall not be merged therein. -6- 11. Purchaser's Authorization. Purchaser represents and warrants to Seller that Purchaser has full power and authority to enter into this Agreement and to consummate fully the transactions contemplated herein and any and all necessary municipal action and proceedings have been taken and had. Purchaser will deliver to Seller and the Title Company at or before the Closing any and all ordinances, notice of meetings, certificates, affidavits, powers of attorney, and agreements deemed necessary or required by Seller or the Title Company, and Purchaser will cause all persons or entities required by Seller or the Title Company to execute the Closing documents or give written consent to the purchase of the Property in accordance with this Agreement (collectively, the "Purchaser Authorization Documents "). The representations and warranties of Purchaser set forth in this Paragraph 11 shall survive the Closing and shall not be merged therein. 12. Title Policy. Seller, at Seller's sole cost and expense, shall cause to be furnished to Purchaser following Closing an Owner Policy of Title Insurance (the "Title Policy ") issued by the Title Company on the form promulgated by the State Board of Insurance of the State of Texas insuring title in the full amount of the Purchase Price, containing no exceptions other than (a) the standard printed exceptions; (b) the Permitted Exceptions; and (c) any other exceptions waived by Purchaser pursuant to this Agreement. 13. Deliveries at Closing. (a) At the Closing, Seller shall deliver to Purchaser the following: (i) The Deed; (ii) The Bill of Sale; (iii) Copies (or originals if available) of all of the Leases within Seller's possession which have not theretofore been delivered to Purchaser. (iv) A certificate of nonforeign status (the "Certificate of Nonforeign Status ") executed by Seller, in the form of the Certificate of Nonforeign Status attached hereto as Exhibit "F ") and made a part hereof for all purposes; (v) Such other documents as Seller and Purchaser may have agreed to deliver at the Closing. -7- (vi) Tenant Estoppels. Copies of any tenant estoppel certificates that Realty Alliance of Texas, Ltd., has delivered to Seller. (b) At the Closing, Purchaser shall deliver to Seller the following: (i) the Purchase Price in Cash; (ii) The Purchaser Authorization Documents; (iii) A notice letter to each tenant of the Property stating that Purchaser is the new owner of the Property, that Purchaser has assumed the obligations of Seller under the Leases (including, but not limited to, the obligation to pay or account for the Security Deposits), that Purchaser has received the Security Deposits, and specifying the exact dollar amount of the deposit received with respect to the particular tenant to which each notice letter is being sent; and (iv) Such other documents as Seller and Purchaser may have agreed to deliver at the Closing. 14. Prorations and Adjustments. All ad valorem taxes for the calendar year during which the Closing is held shall be prorated as of the Closing Date and assumed by Purchaser. In connection with the tax proration, if actual ad valorem tax figures for the year of Closing are not available on the Closing Date, proration of taxes shall be made using tax figures from the preceding year, and any difference in the actual taxes shall be adjusted in cash between Seller and Purchaser as provided in the next to last sentence of this Paragraph 14 following receipt of information confirming the actual amounts thereof for the year of Closing. Current rentals, interest, insurance, utilities, water and sewer charges, service, employment and maintenance contract costs and all other income and expense items, if any, relating to the Property, also shall be prorated as of the Closing Date. Seller shall pay for: (a) Seller's portion of the prorated taxes and other prorated items as herein provided; (b) Seller's own attorneys' fees; (c) one -half of the escrow service fee for the Title Company; and (d) such other incidental expenses as are usually borne by sellers of property in the county where the Property is located. Purchaser shall pay for (a) one -half of the escrow service fee for the Title Company; (b) Purchaser's own attorneys' fees; (c) the recording of the Deed; (d) the deletion of the boundary line discrepancy from the Title Policy if required by Purchaser; and (e) all other incidental expenses usually borne by purchasers of property in the county where the Property is located. At closing, the net adjustment, if -8- in favor of Seller, shall be paid to Seller in the same manner as the Purchase Price or, if in favor of Purchaser, shall be paid by a set -off against the Purchase Price. At Closing, Seller shall also give Purchaser a credit as an offset against the Purchase Price a sum equal to the aggregate of all of the Security Deposits. If any rentals under the Leases are due for periods of time prior to Closing, or if there are any other sums of money which could be owed to Seller by tenants of the Property for periods of time prior to Closing, whether or not such amounts are currently due and payable (collectively, "Seller Amounts "), such amounts shall continue to belong to Seller following Closing and may be collected by Seller or on its behalf either before or after closing. All monies received by Purchaser from tenants of the Property following Closing shall be presumed to be for the current rentals unless specified otherwise. Purchaser agrees to forward to Seller all sums collected by it which are for Seller Amounts within ten (10) days of receipt thereof. In the event any adjustments or prorations pursuant to this Paragraph 14 are, subsequent to Closing, found to be erroneous, then either party hereto who is entitled to additional monies shall invoice the other party for such additional amounts as may be owing, and such amount shall be paid within ten (10) days from receipt of the invoice. The obligations of this Paragraph 14 shall survive the Closing. 15. Default by Purchaser. In the event that Purchaser defaults hereunder and Seller is not likewise in default, Seller shall have the following remedies: (a) terminate this Agreement by giving written notice thereof to Purchaser, whereupon the Earnest Money, together with all interest accrued thereon, shall be paid to Seller or (b) enforce specific performance of Purchaser's duties and obligations under this Agreement. Except for the Special Obligations, neither party shall have any further rights or obligations pursuant to this Agreement. 16. Default by Seller. In the event that Seller defaults hereunder and Purchaser is not likewise in default, Purchaser, as Purchaser's sole and exclusive remedy, may either: (i) terminate this Agreement, whereupon the Earnest Money promptly shall be refunded to Purchaser by the Title Company, and thereafter, except for the Special Obligations, neither Seller nor Purchaser shall have any further rights or obligations pursuant to this Agreement; or (ii) enforce specific performance of Seller's duties and obligations hereunder. 17. Casualty. If the Property, or any part thereof, suffers minor damage following the Execution Date but prior to Closing from fire or other casualty, Seller may, at its option and without any obligation to do so, repair the same prior to the Closing at Seller's sole cost and expense. If (a) Seller fails or refuses to -9- repair any such minor damage prior to Closing, or (b) if the Property, or any part thereof, suffers major damage prior to Closing from fire or other casualty, then Purchaser may, as its sole remedy, either (1) terminate this Agreement, whereupon the Earnest Money, together with all interest accrued thereon, shall be refunded to Purchaser, and, except for the Special Obligations, neither party shall have any further rights or obligations pursuant to this Agreement, or (ii) consummate the Closing, whereupon Seller's rights, if any, in the proceeds of any insurance covering such damage shall be assigned to Purchaser at Closing, with no reduction or abatement in the Purchase Price. For purposes of this Agreement, major damage shall mean damage or destruction, the cost of repairing which exceeds the aggregate of $5000.00, and minor damage shall mean damage or destruction, the cost of repairing which is less than, the aggregate sum of $5,000.00. 18. Condemnation. If, following the Execution Date but prior to Closing, action is initiated or threatened to take any of the Property by eminent domain proceedings Purchaser may not terminate this Agreement but Purchaser shall purchase the Property pursuant to this Agreement and shall be entitled to all condemnation proceeds. 19. Brokerage. Purchaser and Seller each represent and warrant to the other that they have dealt with no brokers, finders or intermediaries of any kind in connection with this transaction. Each party hereto does hereby indemnify and agree to hold the other harmless from and against any and all causes, claims, demands, losses, liabilities, fees, commissions, settlements, judgments, damages, expenses and fees (including, but not limited to, reasonable attorneys' fees and court costs) in connection with any claim for commissions, fees, compensation or other charges relating in any way to this transaction, or the consummation thereof, which may be made by any person, firm or entity as the result of any of its acts or the acts of its agents or representatives, or as a result of its breach of its representations contained in this Paragraph 19. The provisions of this Paragraph 19 shall survive the Closing or any earlier termination of this Agreement. Purchaser acknowledges, at the time of execution of this Agreement, Seller has advised that Purchaser should have an abstract covering the Property examined by an attorney of Purchaser's own selection or that Purchaser should be furnished with or obtain a policy of title insurance. 20. Execution. The execution of this Agreement by the first party to execute same shall constitute an offer to the other party which must be accepted by the execution hereof and the delivery of at least one copy of this Agreement, properly executed, to the first party executing same as herein provided, before 4:00 p.m. of -10- the fifth (5th) business day after such execution by the first party, failing which such offer shall be automatically revoked. 21. Notices. All notices, requests and communications ( "Notice ") under this Agreement shall be given in writing, by (a) personal delivery (confirmed by the courier delivery service), (b) expedited delivery with proof of delivery, (c) telegram or telefax and confirmed in writing by mail, or (d) first class registered or certified mail, postage prepaid, return receipt requested, to the individuals and addresses indicated below: (a) If to Seller: Texas American Land Corporation Employee Profit Sharing Trust #7 Roseville Court Tiburon, California 94920 With a copy to: Julian Lockwood McGinnis, Lochridge & Kilgore 919 Congress Avenue, Suite 1300 Austin, Texas 78701 FAX: 512/495 -6093 (b) If to Purchaser: City of Round Rock 221 East Main Round Rock, Texas 78664 Attn: Robert L. Bennett, City Manager Fax No. 512/255 - 6676 With a copy to: Stephan L. Sheets City Attorney 309 East Main Round Rock, Texas 78664 Fax No. 512/255 -8986 Any Notice provided for herein shall become effective only upon and at the time of first receipt by the party to whom it is given, unless such Notice is only mailed by certified mail, return receipt requested, in which case it shall be deemed to be received two (2) business days after the date that it is mailed. Any party may, by proper written notice hereunder to the other party, change the individual address to which such Notice shall thereafter be sent. 22. No Disclosure. Purchaser agrees not to record, release, announce, disclose or otherwise publicize any information relating to any matter set forth in this Agreement, including, but not limited to, the terms hereof and the identity of the Seller, to any person or entity other than legal counsel, consultants and other professionals retained by Purchaser in connection with this Agreement, who need to know such information in connection with such employment and who have agreed to preserve the confidentiality of such information. 23. DTPA Waiver. Purchaser has knowledge and experience in financial and business matters that enable Purchaser to evaluate the merit and risks of the transaction contemplated hereby. Purchaser is not in a disparate bargaining position vis -a -vis Seller, and Purchaser hereby waives, to the maximum extent permitted by law, any and all rights, benefits and remedies under the Texas Deceptive Trade Practices - Consumer Protection Act set forth in Subchapter E of Chapter 17 of the Texas Business and Commerce Code (other than Section 17.555 thereof) with respect to any matters pertaining to this Agreement and the transaction contemplated hereby. 24. Miscellaneous. Seller and Purchaser further agree as follows: (a) This Agreement may not be assigned by Purchaser without the prior written consent of Seller. Seller shall have the right to assign this Agreement to a third party by conveyance of the Property subject to this Agreement, provided such third party assumes, in writing, the obligations of Seller hereunder. Following written notice to Purchaser of such conveyance and assumption, the original named Seller herein shall have no further liability or obligation hereunder. (b) In the event that, pursuant to the provisions of this Agreement, either Seller or Purchaser shall be entitled to receive the Earnest Money, the other party shall be obligated to execute promptly such direction or agreement as may be required by the Title Company incident to the disposition of the Earnest Money. (c) Except as otherwise set forth herein, the representations, warranties, covenants and agreements of the parties set forth herein shall not survive the Closing and shall be merged therein. -12- (d) Should any action be brought arising out of this Agreement, including, without limitation, any action for declaratory or injunctive relief, the prevailing party shall be entitled to reasonable attorneys' fees and costs and expenses of investigation, all as actually incurred, including, without limitation, attorneys' fees, costs and expenses of investigation incurred in appellate proceedings or in any action or participation in, or in connection with, any case or proceeding under the United States Bankruptcy Code, or any successor statutes, and any judgment or decree rendered in any such actions or proceedings shall include an award thereof. (e) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND THE LAWS OF THE UNITED STATES OF AMERICA APPLICABLE TO TRANSACTIONS WITHIN THE STATE OF TEXAS. (f) Subject to the limitation of (a) above, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. In case any one or more of the provisions contained in this Agreement shall be held to be invalid, illegal or unenforceable in any respect for any reason, that such invalidity, illegality or unenforceability shall not affect any other provision hereof. (h) The captions, headings and arrangements used in this Agreement are for convenience only and do not in any way affect, limit, amplify or modify the terms and provisions hereof. (g) This Agreement constitutes the entire, sole and only agreement of the parties hereto and supersedes any prior understanding or written or oral agreements between the parties respecting the subject matter of this Agreement. (j) Words of any gender used in this Agreement shall be held and construed to include any other gender and words in the singular shall be held to include the plural and vice versa unless the context requires otherwise. (I) -13- (k) Time is of the essence in this Agreement. In the computation of any period of time provided for in this Agreement or by law, the day of the act or event from which said period of time runs shall be excluded, and the last day of such period shall be included, unless it is a Saturday, Sunday or legal holiday, in which case the period shall be deemed to run until the end of the next day which is not a Saturday, Sunday or legal holiday. (1) This Agreement shall have no binding effect on either party until executed by both parties hereto. Execution by the Title Company shall not be required in order for the Agreement to be binding upon Seller and Purchaser. No modification, amendment or waiver of any portion of this Agreement shall be effective unless it is in writing and signed by the party against whom such modification, amendment or waiver is sought to be enforced. (m) (n) This Agreement may be executed in two or more counterparts, and it shall not be necessary that any one of the counterparts be executed by all of the parties hereto. Each fully or partially executed counterpart shall be deemed an original, but all such counterparts taken together shall constitute but one and the same instrument. 25. Commencement Date. As used in this Agreement, the term "Commencement Date" means the date of the Title Company's acknowledgement of receipt of the deposit by Purchaser of the Earnest Money as required under the provisions of Paragraph 4(a) hereof. 26. Executed Date. As used in this Agreement, the term "Execution Date" means the date this Agreement is executed in final form by the last of Seller and Purchaser; provided however, if Purchaser is the last to execute this Agreement and fails to complete the Date of Execution opposite Purchaser's signature below, the Execution Date shall mean that date shown on the Seller's Date of Execution opposite Seller's signature. 27. Execution of Leases Pending Closing. Seller and /or Realty Alliance of Texas, Ltd., shall have the right, but not the obligation, prior to Closing to continue negotiating leases for the Property, including new leases and renewals of existing leases. Prior to executing any such leases or renewals, Seller shall use its best efforts to provide to Purchaser a copy of each proposed -14- lease or renewal and Purchaser shall have two (2) days from receipt of such proposal to respond, in writing, to Seller by either (a) accepting such proposal, in which event Seller or Realty Alliance of Texas, Ltd., shall be allowed to execute such lease and Purchaser shall be deemed to have agreed to (i) assume at Closing all monetary obligations under said lease which accrue before and after Closing, (ii) reimburse Seller or Realty Alliance of Texas, Ltd., at Closing for all amounts of money paid by Seller or Realty Alliance of Texas, Ltd. prior to Closing pertaining to such lease, including, but not limited to, leasing commissions and finish out expenses, reduced by rental collected by Seller or Realty Alliance of Texas, Ltd. under such lease applicable to periods of time prior to Closing, and (iii) assume at Closing all non - monetary obligations under said lease which accrue on or after Closing; or (b) in good faith and for reasons stated in such notice, rejecting such proposed lease or renewal. Failure by Purchaser to so respond in writing within the above time period shall be deemed acceptance by Purchaser of such proposed lease or renewal and agreement to the provisions of subparagraph (a) above. THIS AGREEMENT IS EXECUTED in multiple copies, each of which shall be deemed to be an original for all purposes, and is effective as of the Execution Date. Date of Execution: Date of Execution: -15- SELLER: TEXAS AMERICAN LAND CORPORATION EMPLOYEE PROFIT SHARING TRUST By: Name: Title: PURCHASER: CITY OF ROUND ROCK, TEXAS By: Name: Title: ACKNOWLEDGMENT BY TITLE COMPANY hereby acknowledges receipt of the Earnest Money (as defined in Paragraph 4), and agrees to hold the Earnest Money and deliver the Earnest Money to Purchaser or Seller in accordance with the terms and provisions of this Agreement. -16- TITLE COMPANY: By: Name: Title: Date: EXHIBIT "A" PROPERTY DESCRIPTION The subject property may be legally defined as Lot 9, Heritage Center, Round Rock, Williamson County, Texas according to the plats thereof recorded in Cabinet F, Slides 294 -295 Plat Records of Williamson County, Texas -17- STATE OF TEXAS COUNTY OF WILLIAMSON S S S EXHIBIT "B" SPECIAL WARRANTY DEED KNOW ALL MEN THESE PRESENTS: THAT TEXAS AMERICAN LAND CORPORATION EMPLOYEE PROFIT SHARING TRUST ( "Grantor "), for and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00) and other good and valuable consideration to it paid by the CITY OF ROUND ROCK, TEXAS ( "Grantee "), unto Grantor, the receipt and sufficiency of which are hereby acknowledged and confessed by Grantor, has GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents does hereby GRANT, BARGAIN, SELL and CONVEY unto Grantee, all that certain land situated in the City of Round Rock, County of Williamson, State of Texas, and being more particularly described on Exhibit "A ", attached hereto and made a part hereof for all purposes, together with, all and singular and any and all appurtenances of Grantor pertaining thereto, including any right, title and interest of Grantor in and to adjacent streets, alleys or right -of -way (said land, rights and appurtenances being hereinafter referred to collectively as the "Property "). This conveyance is made and accepted subject, subordinate and inferior to the easements, covenants and other matters and exceptions set forth on Exhibit "B" attached hereto and made a part hereof for all purposes (the "Permitted Exceptions "), but only to the extent they affect or relate to the Property, and without limitation or expansion of the scope of the special warranty herein contained. TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions, unto Grantee, its successors and assigns, forever, and Grantor does hereby bind itself, its successors and assigns, to WARRANT and FOREVER DEFEND all and singular the Property, subject to the Permitted Exceptions, 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 ACKNOWLEDGES AND AGREES, BY ITS ACCEPTANCE HEREOF, THAT THE PROPERTY IS CONVEYED "AS IS, WHERE IS" AND IN ITS PRESENT CONDITION WITH ALL FAULTS, AND THAT GRANTOR HAS NOT MADE AND DOES -18- NOT HEREBY MAKE ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER STATUTORY, EXPRESS OR IMPLIED, WITH RESPECT TO THE QUALITY OR CONDITION OF THE PROPERTY, THE INCOME TO BE DERIVED THEREFROM, THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH GRANTEE MAY CONDUCT THEREON, COMPLIANCE BY THE PROPERTY WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY, HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, OR OTHERWISE WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY, THAT GRANTOR HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE PRESENCE OR ABSENCE OR ANY HAZARDOUS SUBSTANCES (as hereinafter defined) ON, UNDER OR ABOUT THE PROPERTY OR THE COMPLIANCE OR NONCOMPLIANCE OF THE PROPERTY WITH THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, THE SUPERFUND AMENDMENT AND REAUTHORIZATION ACT, THE RESOURCE CONSERVATION RECOVERY ACT, THE FEDERAL WATER POLLUTION CONTROL ACT, THE FEDERAL ENVIRONMENTAL PESTICIDES ACT, THE CLEAN WATER ACT, THE CLEAN AIR ACT, THE TEXAS NATURAL RESOURCES CODE, THE TEXAS WATER CODE, THE TEXAS SOLID WASTE DISPOSAL ACT, THE TEXAS HAZARDOUS SUBSTANCES SPILL PREVENTION AND CONTROL ACT, ANY SO CALLED FEDERAL, STATE OR LOCAL "SUPERFUND" OR "SUPERLIEN" STATUTE, OR ANY OTHER STATUTE, LAW, ORDINANCE, CODE, RULE, REGULATION, ORDER OR DECREE REGULATING, RELATING TO OR IMPOSING LIABILITY (INCLUDING STRICT LIABILITY), OR STANDARDS OF CONDUCT CONCERNING ANY HAZARDOUS SUBSTANCES (collectively, the "Hazardous Substance Laws "). For purposes of this Deed, the term "Hazardous Substances" shall mean and include those elements or compounds which are contained on the list of hazardous substances adopted by the United States Environmental Protection Agency and the list of toxic pollutants designated by Congress or the Environmental Protection Agency or under any Hazardous Substance Laws. Taxes for the year 1991 have been prorated by the parties hereto as of the effective date of this Special Warranty Deed, and Grantee, by its acceptance of this Special Warranty Deed, assumes payment thereof. The mailing address of Grantee is set forth below: City of Round Rock 221 East Main Round Rock, Texas 78664 Attention: Robert L. Bennett City Manager -19- IN WITNESS WHEREOF, Grantor has caused this Special Warranty Deed to be executed on this day of , 1991. STATE OF COUNTY OF My Commission Expires: S S S GRANTOR: TEXAS AMERICAN LAND CORPORATION EMPLOYEE PROFIT SHARING TRUST By: Name: Henry W. Branson III Title: Trustee This instrument was acknowledged before me on this the day of 1991, by Henry W. Branson III, Trustee of Texas American Land Corporation Employee Profit Sharing Trust, on behalf of said Trust. Notary Public in and for the State of Texas -20- (Printed Name of Notary Public) EXHIBIT "C" BILL OF SALE, ASSIGNMENT OF LEASES, INTANGIBLES AND CONTRACTS, AND ASSUMPTION AGREEMENT This Bill of Sale, Assignment of Leases, Intangibles and Contracts and Assumption Agreement (this "Agreement ") is made and entered into this day of , 1991. by and between Texas American Land Corporation Employee Profit Sharing Trust (Assignor "), and the City of Round Rock, Texas ( "Assignee "). W I T N E S E T H : WHEREAS, concurrently with the execution and delivery of this Agreement, Assignor is conveying to Assignee, by Special Warranty Deed (the Deed "), that certain real property legally described on Exhibit "A" attached hereto and made a part hereof for all purposes (the "Land "); WHEREAS, Assignor has agreed to assign to Assignee certain personal property and leases as hereinafter set forth; NOW, THEREFORE, in consideration of the receipt of Ten Dollars ($10.00), the assumptions by Assignee hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee agree as follows: Assignor does hereby ASSIGN, SET OVER and DELIVER to Assignee, its successors and assigns, subject to the exceptions to title set forth in the Deed, all'of Assignor's rights, titles and interests in the following (collectively, the "Property "): (a) All equipment and fixtures owned by Assignor and attached to, located on or used primarily in connection with the Land or the buildings and improvements located on the Land (the "Improvements "); (b) The tenant leases (the "Leases ") of any portion of the Land or the Improvements and the security deposits held by Assignor under the Leases not previously forfeited or returned to tenants (the "Security Deposits "); and (c) To the extent that they are assignable, (i) licenses, franchises, and permits relating to the operation of the Property (the "Intangibles "); and (ii) maintenance, management and service contracts relating to the operation of the Property (the "Contracts "). -21- Assignee hereby accepts and agrees to perform all of the terms, covenant and conditions of the Leases on the part of the landlord or lessor therein; and of the Intangibles and Contracts, from and after the date hereof, including, but not limited to, the obligation to pay or account for the Security Deposits in accordance with the terms of the Leases, and agrees to indemnify, save and hold Assignor harmless from and against any and all loss, liability, claims, damages, costs and expenses (including, but not limited to, court cost and reasonable attorney's fees) arising out of or relating to Assignee's failure to perform any of the obligations of the landlord or lessor under the Leases, and under the Intangibles and Contracts, after the date hereof. It is specifically agreed that Assignor shall not be responsible for the discharge and performance of any duties or obligations to be performed and /or discharge in connection with the Property after the date hereof. In such regard Assignee agrees liabilities, losses, damages, claims, costs and expenses (including, but not limited to, court costs and reasonable attorneys' fees) suffered or incurred by Assignor as a result of claims or actions brought against Assignor relating to causes of action arising from any failure by Assignee to perform or discharge any of its obligations as the owner of the Property or from any other matter relating to the Property after the date hereof. ASSIGNEE HEREBY ACKNOWLEDGES AND AGREES THAT ASSIGNOR HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE OF, AS TO, CONCERNING OR WITH RESPECT TO: (A) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY; (B) THE INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON; (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY: (E) THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; OR (F) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY. WITHOUT LIMITING THE FOREGOING, ASSIGNOR DOES NOT AND HAS NOT MADE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PRESENCE OR ABSENCE OF ANY HAZARDOUS SUBSTANCES (as hereinafter defined) ON, UNDER OR ABOUT THE PROPERTY OR THE COMPLIANCE OR NONCOMPLIANCE OF THE PROPERTY WITH THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, THE SUPERFUND AMENDMENT AND REAUTHORIZATION ACT, THE RESOURCE CONSERVATION RECOVERY ACT, THE FEDERAL WATER POLLUTION CONTROL ACT, THE FEDERAL ENVIRONMENTAL PESTICIDES ACT, THE CLEAN WATER ACT, THE CLEAN AIR ACT, THE TEXAS NATURAL RESOURCES CODE, THE TEXAS WATER CODE, THE TEXAS SOLID WASTE DISPOSAL ACT, THE TEXAS HAZARDOUS SUBSTANCES SPILL PREVENTION AND CONTROL ACT, ANY SO CALLED FEDERAL, STATE OR LOCAL " SUPERFUND" OR -22- "SUPERLIEN" STATUTE, OR ANY OTHER STATUTE, LAW, ORDINANCE, CODE, RULE, REGULATION, ORDER OR DECREE REGULATING, RELATING TO OR IMPOSING LIABILITY (INCLUDING STRICT LIABILITY) OR STANDARDS OF CONDUCT CONCERNING ANY HAZARDOUS SUBSTANCES (collectively, the "Hazardous Substance Laws "). For purposes of this Agreement, the term "Hazardous Substances" shall mean and include those elements or compounds which are contained in the list of hazardous substances adopted by the United States Environmental Protection Agency and the list of toxic pollutants designated by Congress or the Environmental Protection Agency or under any Hazardous Substance Laws. ASSIGNEE FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY ASSIGNEE IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY ASSIGNOR. ASSIGNEE FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT ASSIGNOR HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. Assignee further acknowledges and agrees that the sale of the Property as provided for herein is made on a "AS IS" and "WITH ALL FAULTS" basis. THIS ASSIGNMENT HAS BEEN EXECUTED IN THE STATE OF TEXAS AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND THE LAWS OF THE UNITED STATES OF AMERICA APPLICABLE TO TRANSACTIONS WITHIN THE STATE OF TEXAS. This Assignment may be executed in two or more counterparts, and it shall not be necessary that any one of the counterparts be executed by all of the parties hereto. Each fully or partially executed counterpart shall be deemed an original, but all of such counterparts taken together shall constitute one and the same instrument. EXECUTED effective as of the date first above written. ASSIGNOR: TEXAS AMERICAN LAND CORPORATION EMPLOYEE PROFIT SHARING TRUST By: Name: Henry W. Branson III Title: Trustee -23- ASSIGNEE: CITY OF ROUND ROCK, TEXAS By: Name: Title: -24- EXHIBIT "E" THE CERTIFICATE OF NONFOREIGN STATUS Texas American Land Corporation Employee Profit Sharing Trust (the "Transferor "), is today conveying to the City of Round Rock, Texas (the "Transferee "), a tract of land (the "Property ") located in Williamson County, Texas, which Property is described in Exhibit A to this certificate. Section 1445 of the Internal Revenue Code provides that a transferee of a United States real property interest must withhold tax if the Transferor is a foreign person. In order to inform the Transferee that withholding of tax is not required upon the disposition of a United States real property interest by the Transferor, the undersigned hereby certifies the following on behalf of the Transferor: 1. The Transferor is not a foreign corporation, foreign joint venture, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations), and no withholding is required under Section 1445 of the Internal Revenue Code: 2. The Transferor's United States employer or tax identification number is ; and 3. The Transferor's office address is: The Transferor understands, and intends, the Transferee and other persons involved in the sale and transfer of the Property are relying upon this Certificate and the correctness of the statements made herein. The Transferor understands that this certification may be disclosed to the Internal Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalties of perjury, I declare that I have examined this certification and to my knowledge and belief it is true, correct and complete, and I further declare that I have authority to sign this document on behalf of the Transferor. -25- STATE OF TEXAS S § COUNTY OF WILLIAMSON § My Commission Expires: 0: \B \BRANSON \OERITAGE\AGREE TRANSFEROR: TEXAS AMERICAN LAND CORPORATION EMPLOYEE PROFIT SHARING TRUST By: Name: Henry W. Branson III Title: Trustee This instrument was acknowledged before me on this the day of 1991, by Henry W. Branson III, Trustee of Texas American Land Corporation Employee Profit Sharing Trust, on behalf of said Trust. Notary Public in and for the State of Texas (Printed Name of Notary Public) -26- DATE: October 18, 1991 SUBJECT: City Council Meeting October 22, 1991 ITEM: 10C. Consider a resolution authorizing the Mayor to sign a contract for the purchase of Heritage Center. STAFF RESOURCE PERSON: Bob Bennett /Joanne Land STAFF RECOMMENDATION: Due to the excelerated time frame this item will be presented at the meeting.