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Resolution 2019-36RESOLUTION NO. 2019-36(R)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WYLIE,
TEXAS, AUTHORIZING THE CITY MANAGER OF THE CITY OF
WYLIE, TEXAS, OR HIS DESIGNEE, TO ACCEPT MULLIGAN FOODS
RE 2 LLC'S BID, TO EXECUTE A COMMERCIAL CONTRACT OF
SALE BETWEEN THE CITY AND MULLIGAN FOODS RE 2 LLC FOR
THE SALE OF PROPERTY OWNED BY THE CITY, AND TO EXECUTE
ANY AND ALL OTHER DOCUMENTS AND TAKE ANY AND ALL
OTHER ACTIONS NECESSARY TO EFFECTUATE THE SAME; AND
PROVIDING FOR AN EFFECTIVE DATE HEREOF.
WHEREAS, the City of Wylie, Texas (the "City"), owns that certain tract of land being
1.60459 acres, more or less, situated in the City of Wylie, Collin County, Texas, as more
particularly described in Constable's Deed recorded in Volume 952, Page 911, or the Official
Public Records of Collin County, Texas (the "Property"); and
WHEREAS, the City is authorized to sell the Property pursuant to Chapter 253 and/or
Chapter 272 of the Texas Local Government Code, as applicable; and
WHEREAS, in accordance with Chapter 272 of the Texas Local Government Code, the
City advertised the Property for sale by publishing Invitation to Bid # W2019-134-B; and
WHEREAS, the City desires to sell the Property to Mulligan Foods RE 2 LLC
("Purchaser") based on Purchaser's Bid dated September 25, 2019 (the "Bid"), and Purchaser
desires to purchase the Property from the City, pursuant to the terms of that certain Commercial
Contract of Sale, a copy of which is attached hereto as Exhibit A (the "Contract"); and
WHEREAS, the City has complied with the notice and bidding requirements set forth in
Chapter 272 of the Texas Local Government Code; and
WHEREAS, the City Council finds that accepting the Bid, entering into the Contract, and
selling the Property to Purchaser in accordance with the terms of the Contract will benefit the
residents of the City.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF WYLIE, TEXAS:
SECTION 1. The findings set forth above are incorporated into the body of this
resolution as if fully set forth herein.
SECTION 2. The City Manager of the City of Wylie, Texas, or his designee, is hereby
authorized to (i) accept the Bid, (ii) execute, on behalf of the City, the Contract, in the form
attached hereto as Exhibit A, and (iii) execute any and all other documents and take any and all
other actions necessary to effectuate the sale of the Property in accordance with the Contract.
Should the final, executed version of the Contract be modified from the version attached as
Resolution No. 2019-36(R) Contract with Mulligan Foods RE 2 LLC Page 1 of 3
2931882
Exhibit A, such final, executed version shall replace Exhibit A of this Resolution for all
purposes.
SECTION 3. This Resolution shall be effective immediately upon its passage.
DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
WYLIE, TEXAS on this loth day of December, 2019.
Eric Hogue, M
ATTEST TO:
'Y\COAAS/
Stephanie Storm, City Secretary
Resolution No. 2019-36(R) Contract with Mulligan Foods RE 2 LLC Page 2 of 3
2931882
Exhibit A
Form of Contract
[35 pages attached hereto]
Resolution No. 2019-36(R) Contract with Mulligan Foods RE 2 LLC Page 3 of 3
2931882
Vision Commercial Real Estate
Texas Commercial
Association of Realtors
NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS®
COMMERCIAL CONTRACT OF SALE
(Check all boxes applicable to this Contract - Boxes not checked do not apply to this Contract]
In consideration of the agreements contained in this Commercial Contract of Sale (the "Contract"), Seller
shall sell and convey to Purchaser, and Purchaser shall buy and pay for, the Property (defined below)
pursuant to the provisions, and subject to the conditions, of this Contract.
1. PARTIES. The parties to this Contract are:
Seller: City of Wylie
Address: 300 Country Club Road, Wylie, Texas 75098
Phone: 972-516-6000 Fax:
Email:
Tax ID No.:
Purchaser: Mulligan Foods RE 2 LLC and/or Assigns
Address: PO Box 243, Allen, Texas 75013
Phone: Fax:
Email: toddc mulliganfoods.com
Tax ID No.:
2. PROPERTY. The address of the Property is:
City of Wylie , Texas
The Property is located in Collin County, Texas, the land portion of which
is further described as:
Southern 1.60459 acres property described in Constable's Deed recorded in real estate records of Collin County, Texas
CC# 20151207001523850 (Vol. 952, PG 911)
or as described in Exhibit "A", LEGAL DESCRIPTION and/or shown on Exhibit "B", SITE PLAN.
The Property includes all improvements, fixtures, and personal property situated thereon, and all rights
and appurtenances pertaining thereto, including any right, title and interest of Seller in and to adjacent
streets, alleys, and rights -of -way (such land, improvements, fixtures, personal property, rights, and
appurtenances being collectively referred to in this Contract as the "Property").
©Copyright 2015 NTCAR - Form No.1 (11/2015) Page 1
Vision Commercial Real Estate, 3312 Stonecrest Dr Grapevine TX 76051 Phone' 8173202600 Fax: 8177044621 City of Wylie Land
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3. PURCHASE PRICE.
A. Amount and Payable. The purchase price for the Property is $ 1,045,440.00
(the "Purchase Price"), payable at the Closing as follows (with the Earnest Money to be applied to the
Purchase Price) (Check only one]:
X
(1) All in cash (meaning Good Funds, as defined in Section 4.F. below). If this Contract is
subject to approval for Purchaser to obtain financing from a third party, then Addendum B-
1, THIRD PARTY FINANCING is attached.
(2) Part in cash (Good Funds), in the following amount or percentage [Check onlyone]:
percent ( %) of the Purchase Price.
If only part of the Purchase Price is to be paid in cash, then the balance of the Purchase Price will be
paid according to the provisions in Addendum B-2, SELLER FINANCING. If part of the Purchase
Price is to be paid by Purchaser assuming, or taking the Property subject to, an existing promissory
note secured by the Property, then Addendum B-3, EXISTING LOAN, is attached.
B. Adjustment. If this box is checked , then this Section 3.B. applies and the Purchase Price will be
adjusted up or down based upon the land area of the Property as determined by the Survey. If the box in
the preceding sentence is not checked, then none of this Section 3.B. applies to this Contract. The land area
will be multiplied by the following amount per acre or square foot, as applicable, and the product will become
the Purchase Price at the Closing [Check only one]: [ $ per acre; or
(XI $ 15.00 per square foot. The land area for purposes of determining the Purchase Price
will be the gross land area of the Property unless this box is checked, in which case the land area for
purposes of determining the Purchase Price will be the Net Land Area [as defined in Section S.A. (Survey)] of
the Property. Notwithstanding the foregoing, the Purchase Price will not be reduced under this Section 3.B. to
less than $
4. EARNEST MONEY AND TITLE COMPANY ESCROW.
A. Title Company. The Title Company to serve as escrow agent for this Contract is (the "Title
Company"):
Lawyers Title; 250 S. Hwy 78, Wylie, Texas
B. Effective Date. The "Effective Date" is the date the Title Company acknowledges receipt of this
fully executed Contract as indicated by the signature block for the Title Company.
C. Earnest Money. after the Effective Date, Purchaser shall deliver an
earnest money deposit in the amount of $ 10,000.00 (the "Earnest Money") payable to the
Title Company in its capacity as escrow agent, to be held in escrow pursuant to the terms of this Contract.
Seller's acceptance of this Contract is expressly conditioned upon Purchaser's timely deposit of the Earnest
Money with the Title Company. If Purchaser fails to timely deposit the Earnest Money with the Title Company,
then Seller may, at Seller's option, terminate this Contract by delivering a written termination notice to
Purchaser at any time until Purchaser deposits the Earnest Money with the Title Company.
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Purchaser instructs the Title Company to promptly deposit the Earnest Money upon receipt in one or
more insured accounts in a state or federal banking or savings institution. After receipt of necessary tax forms
from Purchaser, the Title Company will deposit the Earnest Money in an interest bearing account unless this
box is checked, in which case the Title Company will not be required to deposit the Earnest Money in an
interest bearing account. Any interest earned on the Earnest Money will become a part of the Earnest Money.
At the Closing, the Earnest Money will be applied to the Purchase Price or, at Purchaser's option, will be
returned to Purchaser upon full payment of the Purchase Price.
D. Independent Consideration. Notwithstanding anything in this Contract to the contrary, a portion
of the Earnest Money in the amount of $100.00 will be non-refundable and will be distributed to Seller upon
any termination of this Contract as independent consideration for Seller's performance under this Contract. If
this Contract is properly terminated by Purchaser pursuant to a right of termination granted to Purchaser by
any provision of this Contract, the Earnest Money will be promptly returned to Purchaser. Any provision of this
Contract that states that the Earnest Money is to be returned to Purchaser means that the Earnest Money,
less the non-refundable portion, is to be returned to Purchaser.
E. Escrow. The Earnest Money is deposited with the Title Company with the understanding that the
Title Company is not: (1) responsible for the performance or non-performance of any party to this Contract; or
(2) liable for interest on the funds except to the extent interest has been earned after the funds have been
deposited in an interest bearing account.
F. Definition of Good Funds. "Good Funds" means currently available funds, in United States
dollars, paid in the form of a certified check, cashier's check, official bank check or wire transfer acceptable to
the Title Company, such that the payment may not be stopped by the paying party. Any reference in this
Contract to "cash" means Good Funds.
5. SURVEY AND TITLE.
A. Survey. Within 20 days after the Effective Date (Check only one]:
r—
Seller shall deliver to Purchaser a new survey (the "Survey") of the Property prepared at Seller's
expense.
Purchaser shall obtain a new survey (the "Survey") of the Property prepared at Purchaser's
expense.
Purchaser shall obtain a new survey (the "Survey") of the Property prepared at Purchaser's
the wst-ef-the Survey in--an-amount not to xceed
v[
Property in Seller's po-session. Seller shall also deli
and substance reasonably satisfactory to the Title Company, stating that none of the improvements
on the Property and other matters shown by the existing Survey have changed since the existing
for -any-reasonthen-P-ufshaser-sla-all-ebtain-arld-pay-fer-411e-GOSt-of4he-44ew
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or will
Closing for the cost ofthe new Survey inonamount not toexcaed$
Any new Survey must:
(1) bnprepared bvaRegistered Professional Land Surveyor;
(2) beinnform reasonably acceptable toPurchaser and the Title Company;
(5) set forth a legal description of the Property by metes and bounds or by reference to a platted
lot orlots;
(4) show that the Gunxay was made on the ground with corners nnedkad with monuments either
found orplaced;
(5) show any discrepancies or conflicts in boundaries, and any visible encroachments;
(0) contain the surveyor's certificate that the Survey istrue and correct; and
(7) show the location and size of all of the following on or immediately adjacent to the Propedx, if
any, if recorded or visible and apparent:
(8) buildings,
(b) building set back lines (as ahnvvn on any recorded p|at, but not oomay be described in any
restrictive covenants orzoning nndinanoes).
(o) streets and roads,
(d) 1OU-vearflood plain (approximate location),
Ad improvements,
AD encroachments,
(Q)eneennento.
(h) recording information ofrecorded easements,
(i) pavements,
U) protrusions,
(k) fences,
(0 rights -of -way, and
(m) any markers or other visible evidence of utilities.
Any area of the Property within the 1 r flood plain will be shown on the Survey as the
approximate location of the 100-year OnoM plain as shown on any map prepared by the Federal Emergency
Management Agency orother applicable governmental authority. The surveyor is authorized to determine the
area of the Property within any 100-yaor flood plain as shown on any map prepared by any governmental
authority, and in the absence of such a nnap, as otherwise reasonably determined by the surveyor. If the area
within any 1 00-year flood plain is to be deducted for the purpose of determining Net Land Area (defined below)
than the Survey must show the area of the Property covered by the 100-yearf|ood p|ain, and that area, as
reasonably determined by the aurveyor, will be conclusive for purposes of this Controct, even though the
surveyor may qualify that determination ooapproximate.
After the delivery ofthe Survey, the legal description nfthe Property set forth inthe Survey will Ue
incorporated in this Contract as the legal description of the Pouperty, and will be used in the deed and any
other documents requiring o legal description of the Property.
The Survey must show the gross land area of the Property, and if the Purchase Price is based upon
the Net Land Area then the Survey must also show the Net Land Area, expressed in both acres and square
feet. The term ''Net Land Area" means the gross land area of the Property |eao the area within any of the
following (if recorded or visible and apparont, but excluding those within set bouh areas) [Check a8 that
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utility easements;
drainage easements;
access easements;
rights -of -way;
100-year flood plain; and
any encroachments on the Property.
B. Title Commitment. Within 20 days after the Effective Date, Seller shall deliver or cause to be
delivered to Purchaser:
(1) A title commitment (the "Title Commitment") covering the Property binding the Title Company
to issue a Texas Owner Policy of Title Insurance (the "Title Policy") on the standard form
prescribed by the Texas Department of Insurance at the Closing, in the full amount of the
Purchase Price, insuring Purchaser's fee simple title to the Property to be good and
indefeasible, subject only to the Permitted Exceptions (defined below); and
(2) the following (collectively, the "Title Documents"):
(a) true and legible copies of all recorded instruments affecting the Property and recited as
exceptions in the Title Commitment;
(b) a current tax certificate;
(c) any written notices required by applicable statutes, including those referenced in Section 20.
and
(d) if the Property includes any personal property, UCC search reports pertaining to the Seller.
6. REVIEW OF SURVEY AND TITLE.
A. Title Review Period. Purchaser will have 10 days (the "Title Review Period")
after receipt of the last of the Survey, Title Commitment and Title Documents to review them and to deliver a
written notice to Seller stating any objections Purchaser may have to them or any item disclosed by them.
Purchaser's failure to object within the time provided will be a waiver of the right to object. Any item to which
Purchaser does not object will be deemed a "Permitted Exception." The items set forth on Schedule C of the
Title Commitment, and any other items the Title Company identifies to be released upon the Closing, will be
deemed objections by Purchaser. Zoning ordinances and the lien for current taxes are deemed to be Permitted
Exceptions.
B. Cure Period. If Purchaser delivers any written objections to Seller within the Title Review Period,
then Seller shall make a good faith attempt to cure the objections within 10 days (the "Cure Period") after
receipt of the objections. However, Seller is not required to incur any cost to do so. If Seller cannot cure the
objections within the Cure Period, Seller may deliver a written notice to Purchaser, before expiration of the
Cure Period, stating whether Seller is committed to cure the objections at or before the Closing. If Seller does
not cure the objections within the Cure Period, or does not timely deliver the notice, or does not commit in the
notice to fully cure all of the objections at or before the Closing, then Purchaser may terminate this Contract by
delivering a written notice to Seller on or before the earlier to occur of: (1) the date that is seven days after the
expiration of the Cure Period; or (2) the scheduled Closing Date.
C. New Items. If any new items are disclosed by any new or updated Survey, updated Title
Commitment, or any new Title Documents, that were not disclosed to Purchaser when the Survey, Title
Commitment, and Title Documents were first delivered to Purchaser, then Purchaser will have 15 days to
review the new items and to deliver a written notice to Seller stating any objections Purchaser may have to the
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new items. If Purchaser timely delivers any written objections as to the new items to Seller, then Seller shall
make a good faith attempt to cure the objections to the new items within 10 days (the "Additional Cure
Period") after receipt of the objections as to the new items. However, Seller is not required to incur any cost to
do so. If Seller does not cure the objections as to the new items within the Additional Cure Period, or does not
deliver a written notice to Purchaser before the expiration of the Additional Cure Period stating whether Seller
is committed to cure the objections as to the new items at or before the Closing, then Purchaser may
terminate this Contract by delivering a written notice to Seller on or before the earlier to occur of: (1) that date
that is seven days after the expiration of the Additional Cure Period; or (2) the scheduled Closing Date.
D. Return of Earnest Money or Waiver. If Purchaser properly and timely terminates this Contract,
the Earnest Money will be returned to Purchaser. If Purchaser does not properly and timely terminate this
Contract, then Purchaser will be deemed to have waived any uncured objections and must accept title at the
Closing subject to the uncured objections and other Permitted Exceptions. Seller's failure to cure Purchaser's
objections under this Section 6 does not constitute a default by Seller.
7. SELLER'S REPRESENTATIONS.
A. Statements. Seller represents to Purchaser, to the best of Seller's knowledge, as follows:
(1) Title. At the Closing, Seller will convey to Purchaser good and indefeasible fee simple title to
the Property free and clear of any and all liens, assessments, easements, security interests and other
encumbrances except the Permitted Exceptions. Delivery of the Title Policy pursuant to Section 15 (the
Closing) will be deemed to satisfy the obligation of Seller as to the sufficiency of title required under
this Contract. However, delivery of the Title Policy will not release Seller from the warranties of title set
forth in the warranty deed.
(2) Leases. There are no parties in possession of any portion of the Property as lessees, tenants
at sufferance or trespassers except tenants under written loaves delivered to Purchaser pursuant to
this Contract.
(3) Liens and Debts. There are no mechanic's liens, Uniform Commercial Code liens or
unrecorded liens against the Property, and Seller shall not allow any such liens to attach to the
Property before the Closing that will not be satisfied out of the Closing proceeds. All obligations of
Seller arising from the ownership and operation of the Property and any business operated on the
Property, including, but not limited to, taxes, leasing commissions, salaries, contracts, and similar
agreements, have been paid or will be paid before the Closing. Except for obligations for which
provisions are made in this Contract for prorating at the Closing and any indebtedness taken subject to
or assumed, there will be no obligations of Seller with respect to the Property outstanding as of the
Closing.
(4) Litigation. There is no pending or threatened litigation, condemnation, or assessment affecting
Property. Seller shall promptly advise Purchaser of any litigation, condemnation or assessment
affecting the Property that is instituted after the Effective Date.
(5) Material Defects. Seller has disclosed to Purchaser any and all known conditions of a material
nature with respect to the Property which may affect the health or safety of any occupant of the
Property. Except as disclosed in writing by Seller to Purchaser, the Property has no known latent
structural defects or construction defects of a material nature, and none of the improvements have
been constructed with materials known to be a potential health hazard to occupants of the Property.
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(6) Hazardous Materials. Except as otherwise disclosed in writing by Seller to Purchaser, the
Property (including any improvements) does not contain any Hazardous Materials (defined below)
other than lawful quantities properly stored in containers in compliance with applicable laws.
B. Remedies. If Purchaser discovers, before the Closing, that any of Seller's representations has
been misrepresented in a material respect, Purchaser may notify Seller of the misrepresentation in writing,
and Seller shall attempt to correct the misrepresentation. If the misrepresentation is not corrected by Seller
before the Closing, Purchaser may: (1) proceed to Closing, without waiving any claim for misrepresentation; or
(2) terminate this Contract by delivering a written termination notice to Seller, in which case the Earnest Money
will be returned to Purchaser.
8. OPERATION OF THE PROPERTY. After the Effective Date until the Closing Date, Seller shall:
(1) operate the Property in the same manner as the Property has been operated by Seller; and (2) maintain
the Property in the same condition as existed on the Effective Date, except for ordinary wear and any casualty
loss. After the Effective Date, Seller shall not, without Purchaser's prior written approval: (1) further encumber
the Property or allow an encumbrance upon the title to the Property, or modify the terms of any existing
encumbrance, if the encumbrance would still be in effect after Closing; or (2) enter into any lease or contract
affecting the Property, if the lease or contract would still be in effect after Closing. However, Seller may enter
into a lease or contract with an independent third party, in the ordinary course of business, without Purchaser's
consent, if Purchaser will be entitled to terminate the lease or contract after Closing, without incurring any
termination charge, by delivering a termination notice 30 days in advance of the termination date. If Seller
enters into any lease or contract affecting the Property after the Effective Date, then Seller shall immediately
deliver a photocopy of the signed document to Purchaser.
9. NONCONFORMANCE. Purchaser has or will independently investigate and verify to Purchaser's
satisfaction the extent of any limitations of uses of the Property. Purchaser acknowledges that the current use
of the Property or the improvements located on the Property (or both) may not conform to applicable Federal,
State or municipal laws, ordinances, codes or regulations. Zoning, permitted uses, height limitations, setback
requirements, minimum parking requirements, limitations on coverage of improvements to total area of land,
Americans with Disabilities Act requirements, wetlands restrictions and other matters may have a significant
economic impact upon the intended use of the Property by Purchaser. However, if Seller is aware of any
pending zoning changes or current nonconformance with any Federal, State or local laws, ordinances, codes
or regulations, Seller shall disclose them to Purchaser.
10. INSPECTION. [Check only A or B]
A. Inspection Not Necessary. Purchaser acknowledges that Purchaser has inspected the Property,
including all buildings and improvements, and is thoroughly familiar with their condition. Purchaser accepts the
Property in its present "AS IS" condition, with any changes caused by normal wear and tear before the
Closing, but without waiving Purchaser's rights by virtue of Seller's representations and agreements expressed
in this Contract.
XI B. Inspection Desired. Purchaser desires to inspect the Property and Seller grants to Purchaser the
right to inspect the Property as described below.
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(1) Inspection Period. Purchaser will have aperiod of 90 days after the Effective Date (the
"Inspection Period") to inspect the Property and conduct studies regarding the Property. Purchaser's
studies may include, without limitation: (a) permitted use and zoning of the Property; (b) core borings;
(c) environmental and architectural tests and investigations; (d) physical inspections of improvements,
fixtures, equipment, subsurface soils, structural members, and personal property; and (e) examination
of agreements, manuals, plans, specifications and other documents relating to the construction and
condition of the Property. Purchaser and Purchaser's agents, employees, consultants and contractors
will have the right of reasonable entry onto the Property during normal business hours, and upon
reasonable advance notice to Seller and any tenants on the Property, for purposes of inspections,
studies, tests and examinations deemed necessary by Purchaser. The inspections, studies, tests and
examinations will be at Purchaser's expense and risk. Purchaser may also use the Inspection Period to
perform feasibility studies, obtain equity funding, seek financing, and satisfy other conditions unrelated
to the condition of the Property. Purchaser shall defend and indemnify Seller against any claims that
arise due to any actions by Purchaser or Purchaser's agents, employees, consultants and contractors.
Purchaser's obligation to defend and indemnify Seller will survive the Closing or termination of this
Contract.
(2) Extension of Inspection Period. Purchaser may extend the Inspection Period for up to
30 days by delivering an additional earnest money deposit in the amount of
$ None to the Title Company. The additional deposit will become part of the
Earnest Money.
(3) Termination. If Purchaser determines, in Purchaser's sole discretion, no matter how arbitrary,
that Purchaser chooses not to purchase the Property for any reason, then Purchaser may terminate
this Contract by delivering a written notice to Seller on or before the last day of the Inspection Period,
in which case the Earnest Money will be returned to Purchaser. Purchaser's reason for choosing to
terminate this Contract does not need to be related to the condition of the Property, and Purchaser is
not required to justify Purchaser's decision to terminate this Contract.
(4) Acceptance. If Purchaser does not properly and timely terminate this Contract before the
expiration of the Inspection Period (or if Purchaser accepts the Property in writing) then Purchaser will
be deemed to have waived all objections to the Property, except for any title objections that may be
outstanding pursuant to Section 6 (Review of Survey and Title) of this Contract. In that event, except
as may be expressly stated otherwise in this Contract, Purchaser accepts the Property in its current
"AS IS" condition, with any changes caused by normal wear and tear before the Closing, and this
Contract will continue in full force and effect. This provision does not, however, limit or invalidate any
express representations and agreements Seller has made in this Contract.
(5) Restoration. If the transaction described in this Contract does not close through no fault of
Seller, and the condition of the Property was altered due to inspections, studies, tests or examinations
performed by Purchaser or on Purchaser's behalf, then Purchaser must restore the Property to its
original condition at Purchaser's expense. Purchaser's obligation to restore the Property will survive the
termination of this Contract.
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C. Reports. [Check all that apply]
(a) Within da„s after• the Effecti„e Date Seller shall deliver to Purchaser
a written "Phase I" report of an environmental assessment of the Property. The report will
be prepared, at Seller's expense, by an environmental consultant reasonably acceptable to
Purchaser. The environmental assessment must include an investigation into the existence
of Hazardous Materials (as defined in Section 19.A. of this Contract) in, on or around the
Property. The environmental assessment must also include a land use history search,
engineering inspections, research and studies that may be necessary to discover the
existence of Hazardous Materials.
(b) Within 10 days after the Effective Date, Seller shall deliver to Purchaser copies of all reports
in Seller's possession or control of engineering investigations, tests and environmental
studies that have been made with respect to the Property within the three year period before
the Effective Date.
(c) If Purchaser terminates this Contract, Purchaser shall return to Seller, at Purchaser's
expense and contemporaneously with the termination, the original, hard copies of any
documents Seller delivered to Purchaser. Also, Purchaser shall return, destroy, or delete
any other copies of such documents, electronic or otherwise, in Purchaser's possession.
This provision will survive the termination of this Contract.
(d) If Purchaser terminates this Contract, Purchaser shall deliver to Seller, at Purchaser's
expense and contemporaneously with the termination, copies of all written reports,
inspections, plats, drawings and studies that relate to the condition of the Property made by
Purchaser's agents, consultants and contractors. This provision will survive the termination
of this Contract.
11. DELIVERY AND REVIEW OF DOCUMENTS.
A. Delivery. Seller agrees to deliver to Purchaser, within 10 days after the Effective Date, complete
and legible copies of the following pertaining to the Property, to the extent in Seller's possession or readily
available to Seller:
(1) All current leases, including all modifications, amendments, supplements and extensions
thereof (including written descriptions of any oral agreements);
(2) A current rent roll certified by Seller to be true, complete and accurate as of the date of delivery,
including names of tenants, annual or monthly rents, expenses paid by tenants and by Seller,
commencement dates, terms of leases, and renewal options;
(3) A current inventory of all tangible personal property and fixtures owned by Seller and located
on, attached to, or used in connection with the Property, to be sold with the Property, certified by Seller
to be true and correct as of the date of delivery;
(4) Any Notes, Deeds of Trust and other loan documents pertaining to loans assumed or taken
subject to;
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(5) All service, maintenance, management, or other contracts relating to the ownership and
operation of the Property;
(6) All warranties and guaranties;
(7) All fire, hazard, liability, and other insurance policies;
(8) The real estate and personal property tax statements for the previous two calendaryears;
(9) All leasing and commission agreements;
(10) The "as built" or other plans and specifications;
(11) A statement of utility charges, repair costs and other expenses incurred by Seller for the
operation and maintenance of the Property for each month for the two years preceding the Effective
Date;
(12) A true and correct statement of income and expenses from
to
(13) Any certificate of mold remediation that has been issued for the Property under Section
1958.154 of the Occupations Code within the preceding five years; and
(14) Other Any environmental surveys, existing work, TCEQ documentation
B. Review of Documents. Purchaser will have a period of time (the "Document Review Period") to
review the information identified above, ending the later to occur of:
(1) N/A days after the Effective Date; or
(2) the end of the Inspection Period (if any).
If Purchaser objects to any information disclosed to or discovered by Purchaser, in Purchaser's sole
discretion, no matter how arbitrary, Purchaser may: (i) terminate this Contract by delivery of a written notice to
Seller before the expiration of the Document Review Period, in which case the Earnest Money will be returned
to Purchaser and Purchaser shall return all documents Seller delivered to Purchaser; or (ii) waive the
objections and close the transaction. If Purchaser does not deliver a written termination notice to Seller before
expiration of the Document Review Period, then any objections as to the information provided by Seller
pursuant to this Section will be deemed to be waived by Purchaser.
12. ESTOPPEL CERTIFICATES. Seller agrees to deliver to Purchaser, at least
d
Property stating:
(1) whether the tenant is an assignee or subtenant;
ro+i„n�ate of thc lease;
(3) the number of renewal options under thc I asc, if any, and the total period of time covered by the
the lease, except as showned-arnendments or modifications•
(5) that no default exists under thc terms of the lease by either landlord ortenant;
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se and has no defense or right of
offset against collection of rent or other charges accruing under the lease;
s, if any; and
immediately notify Seller in writing of Purchaser's objections. Seller shall promptly attempt to cure the
to cure the unacceptable matters before the Closing Date, Purchaser may: (i) terminate this Contract by
13. CASUALTY LOSS AND CONDEMNATION.
A. Damage or Destruction. All risk of Toss to the Property will remain upon Seller before the Closing.
If the Property is damaged or destroyed by fire or other casualty to a Material Extent (defined below), then
Purchaser may terminate this Contract by delivering a written termination notice to Seller within 10 days after
the date the casualty occurred (and in any event before the Closing), in which case the Earnest Money will be
returned to Purchaser. If the Property is damaged by fire or other casualty to less than a Material Extent, the
parties shall proceed to the Closing as provided in this Contract. If the transaction is to proceed to the Closing,
despite any damage or destruction, there will be no reduction in the Purchase Price and Seller shall either: (1)
fully repair the damage before the Closing, at Seller's expense; or (2) give a credit to Purchaser at the Closing
for the entire cost of repairing the Property. The term "Material Extent" means damage or destruction where
the cost of repair exceeds ten percent (10%) of the Purchase Price. If the repairs cannot be completed before
the Closing Date, or the cost of repairing the Property cannot be determined before the Closing Date, then
either party may postpone the Closing Date by delivering a written notice to the other party specifying an
extended Closing Date that is not more than 30 days after the previously scheduled Closing Date.
B. Condemnation. If condemnation proceedings are commenced before the Closing against any
portion of the Property, then Seller shall immediately notify Purchaser in writing of the condemnation
proceedings, and Purchaser may terminate this Contract by delivering a written notice to Seller within 10 days
after Purchaser receives the notice (and in any event before the Closing), in which case the Earnest Money
will be returned to Purchaser. If this Contract is not terminated, then any condemnation award will (a) if known
on the Closing Date, belong to Seller and the Purchase Price will be reduced by the same amount, or (b) if not
known on the Closing Date, belong to Purchaser and the Purchase Price will not be reduced.
14. ASSIGNMENT. [Check only one]
A. Assignment Permitted. Purchaser may assign this Contract provided the assignee assumes in
writing all obligations and liabilities of Purchaser under this Contract, in which event Purchaser will
be relieved of any further liability under this Contract.
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B. Limited Assignment Permitted. Purchaser may assign this Contract only to a related party,
defined as: (1) an entity in which Purchaser is an owner, partner or corporate officer; (2) an entity
which is owned or controlled by the same person or persons that own or control Purchaser; or (3) a
member or members of the immediate family of Purchaser, or a trust in which the beneficiary or
beneficiaries is or are a member or members of the immediate family of Purchaser. Purchaser will
remain liable under this Contract after any assignment.
C. Assignment Prohibited. Purchaser may not assign this Contract without Seller's prior written
consent.
15. CLOSING.
A. Closing Date. The closing of the transaction described in this Contract (the "Closing") will be held
at the offices of the Title Company at its address stated below, on the date (the "Closing Date") that is
days after the Effective Date; or
specified on the Addendum to the Contract, attached hereto and made a part hereof by reference for all purposes.
However, if any objections that were timely made by Purchaser in writing pursuant to Section 6
(Review of Survey and Title) have not been cured, then either party may postpone the Closing Date by
delivering a written notice to the other party specifying an extended Closing Date that is not more than thirty 30
days after the previously scheduled Closing Date.
B. Seller's Closing Obligations. At the Closing, Seller shall deliver to Purchaser, at Seller's expense:
(1) A duly executed (check only one] _ 1 General Warranty Deed IX', Special Warranty Deed (with
vendor's lien retained if financing is given by Seller or obtained from a third party) conveying the
Property in fee simple according to the legal description prepared by the surveyor as shown on the
Survey, subject only to the Permitted Exceptions;
(2) An updated Title Commitment committing the underwriter for the Title Company to issue
promptly after the Closing, at Seller's expense, the Title Policy pursuant to the Title Commitment,
subject only to the Permitted Exceptions, in the full amount of the Purchase Price, dated as of the date
of theClosing, and (at an additional premium cost) (check only one if applicable]
with the survey exception modified at Seller's expense to read "any shortages in area," or XJj with
the survey exception modified at Purchaser's expense to read "any shortages in area;"
(3) A Bill of Sale conveying the personal property described in this Contract, free and clear of
liens, security interests, and encumbrances, subject only to the Permitted Exceptions (to the extent
applicable);
(4) Possession of the Property, subject to valid existing leases disclosed by Seller to Purchaser and
other applicable Permitted Exceptions;
(5) An executed assignment of all leases, if there are any leases affecting the Property;
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(6) A current rent roll certified by Seller to be complete and accurate, if there are any leases
affecting the Property;
(7) Evidence of Seller's authority and capacity to close this transaction; and
(8) All other documents reasonably required by the Title Company to close this transaction.
C. Purchaser's Closing Obligations. At the Closing, Purchaser shall deliver to Seller, at Purchaser's
expense:
(1) The cash portion of the Purchase Price (with the Earnest Money being applied to the
Purchase Price);
(2) The Note and the Deed of Trust, if Addendum B-2, SELLER FINANCING, is attached;
(3) An Assumption Agreement in recordable form agreeing to pay all commissions payable under
any lease affecting the Property;
(4) Evidence of Purchaser's authority and capacity to close this transaction; and
(5) All other documents reasonably required by the Title Company to close this transaction.
D. Closing Costs. Each party shall pay its share of the closing costs which are customarily paid by a
seller or purchaser in a transaction of this character in the county where the Property is located, or as
otherwise agreed.
E. Prorations. Rents (including any additional rental or reimbursement amounts to
be reconciled), lease commissions, interest on any assumed loan, insurance premiums on any
transferred insurance policies, maintenance expenses, operating expenses, standby fees, and ad valorem
taxes for the year of the Closing will be prorated at the Closing effective as of the date of the Closing (with the
Purchaser being considered the owner of the Property for the entire day of the Closing). Seller shall give a
credit to Purchaser at the Closing in the aggregate amount of any security deposits deposited by tenants
under leases affecting the Property. If the Closing occurs before the tax rate is fixed for the year of the
Closing, the apportionment of the taxes will be upon the basis of the tax rate for the preceding year applied to
the latest assessed valuation, but any difference between actual and estimated taxes for the year of the
Closing actually paid by Purchaser will be adjusted equitably between the parties upon receipt of a written
statement of the actual amount of the taxes. This provision will survive the Closing.
F. Rollback Taxes. If any Rollback Taxes are due before the Closing due to a change in use of the
Property by Seller or a denial of any special use valuation of the Property before the Closing, then Seller shall
pay those Rollback Taxes (including any interest and penalties) at or before the Closing. If this sale or a
change in use of the Property or denial of any special use valuation of the Property after the Closing would
result in the assessment after the Closing of additional taxes and interest applicable to the period of time
before the Closing ("Rollback Taxes"), then: (1) Purchaser shall pay the Rollback Taxes (including any
interest and penalties) if and when they are assessed, without receiving any credit from Seller; unless (2) this
box is checked, in which case Seller shall give a credit to Purchaser at the Closing for the amount of the
Rollback Taxes (including interest and penalties) that may be assessed after the Closing as reasonably
estimated by the Title Company, and Purchaser shall pay the Rollback Taxes (including any interest and
penalties) if and when they are assessed after the Closing. If Seller gives a credit to Purchaser for the
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estimated amount of Rollback Taxes, and the actual Rollback Taxes assessed after the Closing are different
from the estimate used at the Closing, then there will be no subsequent adjustment between Seller and
Purchaser.
G. Loan Assumption. If Purchaser assumes, or takes the Property subject to, an existing loan
secured by the Property, then, at the Closing, in addition to the proration of interest on the loan, Purchaser
shall pay: (1) to the lender, any assumption or transfer fee charged by the lender; (2) to the lender, reasonable
attorney's fees charged by the lenders' attorney; and (3) to Seller, a sum equal to the amount of any reserve
accounts held by the lender for the payment of taxes, insurance and any other expenses applicable to the
Property for which reserve accounts are held by the lender, and Seller shall transfer the reserve accounts to
Purchaser. Purchaser shall execute, at the option and expense of Seller, a Deed of Trust to Secure
Assumption with a trustee named by Seller. If consent to the assumption is required by the lender, Seller shall
obtain the lender's consent in writing and deliver the consent to Purchaser at the Closing. If Seller does not
obtain the lender's written consent (if required) and deliver it to Purchaser at or before the Closing, Purchaser
may terminate this Contract by delivering a written termination notice to Seller, and the Earnest Money will be
returned to Purchaser.
H. Foreign Person Notification. If Seller is a Foreign Person, as defined by the Internal Revenue
Code, or if Seller fails to deliver to Purchaser a non -foreign affidavit pursuant to §1445 of the Internal Revenue
Code, then Purchaser may withhold from the sales proceeds an amount sufficient to comply with applicable
tax law and deliver the withheld proceeds to the Internal Revenue Service, together with appropriate tax forms.
A non -foreign affidavit from Seller must include: (1) a statement that Seller is not a foreign person; (2) the U.S.
taxpayer identification number of Seller; and (3) any other information required by §1445 of the Internal
Revenue Code.
16. DEFAULT.
A. Purchaser's Remedies. If Seller defaults or fails to close this Contract for any reason
except Purchaser's default or the termination of this Contract pursuant to a right to terminate set forth in this
Contract, Purchaser may elect to either: (1) enforce specific performance of this Contract (require Seller to sell
the Property to Purchaser pursuant to this Contract); or (2) terminate this Contract by delivering a written
notice to Seller. If Purchaser elects to terminate this Contract due to Seller's default, then Purchaser will be
deemed to have waived the remedy of specific performance and any other remedies available to Purchaser
(except for reimbursement for Purchaser's actual expenses as provided in the next paragraph) and the
Earnest Money will be returned to Purchaser.
exs-I
exceed $
box is checked, in which case Purchaser may sue Seller for additional damages (in addition to the
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legal action initiated by Purchaser.
B. Seller's Remedies. If Purchaser fails to close this Contract for any reason except Seller's default
or the termination of this Contract pursuant to a right to terminate set forth in this Contract, Purchaser will be in
default and Seller may terminate this Contract and receive the Earnest Money as liquidated damages for
Purchaser's breach of this Contract, thereby releasing Purchaser from this Contract. If Seller terminates this
Contract due to Purchaser's default, then the Earnest Money will be paid to Seller.
The right to receive the Earnest Money will be Seller's sole and exclusive remedy for Purchaser's
default unless one of the following remedies is selected, in which case Seller may sue Purchaser:; to
enforce specific performance (force Purchaser to purchase the Property pursuant to this Contract);or _; for
actual damages in lieu of receiving the Earnest Money as liquidated damages. If one or both of the boxes is
must elect to either receive the Earnest Money or sue Purchaser for one of the other selected remedies at the
17. AGENCY DISCLOSURE.
A. Agency Relationships. The term "Brokers" refers to the Principal Broker and the Cooperating
Broker, if applicable, as set forth on the signature page. Each Broker has duties only to the party the Broker
represents as identified below. If either Broker is acting as an intermediary, then that Broker will have only the
duties of an intermediary, and the intermediary disclosure and consent provisions apply as set forth below.
(Each broker check only one]
(1) The Principal Broker is: X agent for Seller only; or ! agent for Purchaser only; or
L_ an intermediary.
(2) The Cooperating Broker is:
an intermediary.
_j agent for Seller only; oagent for Purchaser only; or
B. Other Brokers. Seller and Purchaser each represent to the other that they have had no dealings
with any person, firm, agent or finder in connection with the negotiation of this Contract or the consummation
of the purchase and sale contemplated by this Contract, other than the Brokers named in this Contract, and no
real estate broker, agent, attorney, person, firm or entity, other than the Brokers, is entitled to any commission
or finder's fee in connection with this transaction as the result of any dealings or acts of the representing party.
Each party agrees to indemnify, defend, and hold the other party harmless from and against any costs,
expenses or liability for any compensation, commission, fee, or charges that may be claimed by any agent,
finder or other similar party, other than the Brokers, by reason of any dealings or acts of the indemnifying
party.
C. Fee Sharing. Seller and Purchaser agree that the Brokers may share the Fee (defined
below) among themselves, their sales associates, and any other licensed brokers involved in the sale of the
Property. The parties authorize the Title Company to pay the Fee directly to the Principal Broker and, if
applicable, the Cooperating Broker, in accordance with Section 18 (Professional Service Fee) or any other
agreement pertaining to the Fee. Payment of the Fee will not alter the fiduciary relationships between the
parties and the Brokers.
D. Intermediary Relationship. If either of the Brokers has indicated in Section 17.A. (Agency
Relationships) or otherwise that the Broker is acting as an intermediary in this transaction, then Purchaser and
Seller hereby consent to the intermediary relationship, authorize such Broker or Brokers to act as an
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intermediary in this tramsandon, and acknowledge that the source of any expected compensation to the
Brokers will be 8aUer, and the Brokers may also be paid afee by Purchaser. A broker, and any broker or
salesperson appointed to communicate with and carry out instructions of one party, who acts as an
intermediary is required to act fairly and impartially, and may not:
(1) disclose tothe buyer that the seller will accept a price less than the asking pricm,
un|maa instructed in a separate writing by the seller;
CD disclose to the seller that the buyer will pay m price greater than the price submitted in a
written offer to the seUer, unless otherwise instructed in a separate writing by thebuyer|
(3)dioo|oae any confidential information or any information that a party specifically
instructs the broker mrsalesperson in writing not tmdisclose, unless:
(a) the broker or salesperson is otherwise instructed in m separate writing by the
respective party;
(b)the broker or salesperson is required to disclose the information by the Texas Rmm|
Estate License Act oracourt order; or
(c) the information materially relates to the condition ofthe Property;
(4) treat a party to a transaction dishonestly; or
(5) violate the Texas Real Estate License Act.
Broker |sauthorized tn appo|nt, by providing vvhthsn notice tothe parties, a license holder associated
with Broker to communicate with and carry out instructions of one porty, and another license holder associated
with Broker to communicate with and carry out instructions of the other party. An appointed license holder may
provide opinions and advice during negotiations to the party to whom the license holder is appointed.
18iPROFESSIONAL SERVICE FEE.
A. Payment of Fem. Seller agrees to pay the Brokers a professional service fee (the "Fee") for
procuring the Purchaser and for assisting in the negotiation of this Contract asfollows:
Six percent b»besplit evenly between the Principal and Cooperating hnohers�
o,nud\.ThoFoawW|beooidbv
en the Fee The Title Gempapy-�
ntract); or (2) any default by
cur due to Punohao
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under this Contract, then the Fee win b id -within 10 days after the scheduled Closing Date, and the Title
the remedy of terminating this Contract, and the amount of the Fee will not be limited to the amount of thc
Earnest Money or any other escrow deposit made pursuant to this Contract.
B. Consent Required. Purchaser, Seller and Title Company agree that the Brokers are third party
beneficiaries of this Contract with respect to the Fee, and that no change may be made by Purchaser,
Seller or Title Company as to the time of payment, amount of payment or the conditions for payment of the
Fee without the written consent of the Brokers.
C. Right to Claim a Lien. Pursuant to Chapter 62 of the Texas Property Code, the Brokers hereby
disclose their right to claim a lien based on thc commission agreement set forth in this Contract and any other
commission agreements applicable to the sale contemplated by this Contract. This disclosure is incorporate.
in any such commission agreements.
19. MISCELLANEOUS PROVISIONS.
A. Definition of Hazardous Materials. "Hazardous Materials" means any pollutants, toxic
substances, oils, hazardous wastes, hazardous materials or hazardous substances as defined in or pursuant
to the Comprehensive Environmental Response, Compensation and Liability Act, as amended, the Clean
Water Act, as amended, or any other Federal, State or local environmental law, ordinance, rule, or regulation,
whether existing as of the Effective Date or subsequently enacted.
B. Notices. All notices and other communications required or permitted under this Contract must be in
writing and will be deemed delivered on the earlier of: (1) actual receipt, if delivered in person or by
courier, with evidence of delivery; (2) receipt of an electronic facsimile ("Fax") transmission with confirmation
of delivery to the Fax numbers specified in this Contract, if any; or (3) upon deposit with the United States
Postal Service, certified mail, return receipt requested, postage prepaid, and properly addressed to the
intended recipient at the address set forth in this Contract. Any party may change its address for notice
purposes by delivering written notice of its new address to all other parties in the manner set forth above.
Copies of all written notices should also be delivered to the Brokers and to the Title Company, but failure to
notify the Brokers or the Title Company will not cause an otherwise properly delivered notice to be ineffective.
X
1. Seller also consents to receive any notices by email.
2. Purchaser also consents to receive any notices by email.
C. Termination. If this Contract is terminated for any reason, the parties will have no further
rights or obligations under this Contract, except that: (1) Purchaser shall pay the costs to repair any damage to
the Property caused by Purchaser or Purchaser's agents; and (2) each party shall perform any other
obligations that, by the explicit provisions of this Contract, expressly survive the termination of this Contract.
The obligations of this Section 19.C. will survive the termination of this Contract. The terms of any mutual
termination agreement will supersede and control over the provisions of this Section 19.C. to the extent of any
conflict.
D. Forms. In case of a dispute as to the form of any document required under this Contract, the most
recent form prepared by the State Bar of Texas will be used, modified as necessary to conform to the terms of
this Contract.
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E. Attorneys' Fees. The prevailing party in any proceeding brought to enforce this Contract, or
brought relating to the transaction contemplated by this Contract, will be entitled to recover, from the non -
prevailing party, court costs, reasonable attorneys' fees and all other reasonable related expenses.
F. Integration. This Contract contains the complete agreement between the parties with respect to
the Property and cannot be varied except by written agreement. The parties agree that there are no
oral agreements, understandings, representations or warranties made by the parties that are not expressly set
forth in this Contract. Any prior written agreements, understandings, representations or warranties between
the parties will be deemed merged into and superceded by this Contract, unless it is clear from the written
document that the intent of the parties is for the previous written agreement, understanding, representation or
warranty to survive the execution of this Contract.
G. Survival. Any representation or covenant contained in this Contract not otherwise discharged
at the Closing will survive the Closing.
H. Binding Effect. This Contract will inure to the benefit of, and will be binding upon, the parties to
this Contract and their respective heirs, legal representatives, successors and assigns.
I. Time for Performance. Time is of the essence under each provision of this Contract. Strict
compliance with the times for performance is required.
J. Business Day. If any date of performance under this Contract falls on a Saturday, Sunday or
Texas legal holiday, such date of performance will be deferred to the next day that is not a Saturday, Sunday
or Texas legal holiday.
K. Right of Entry. After reasonable advance notice and during normal business hours, Purchaser,
Purchaser's representatives and the Brokers have the right to enter upon the Property before the Closing for
purposes of viewing, inspecting and conducting studies of the Property, so long as they do not unreasonably
interfere with the use of the Property by Seller or any tenants, or cause damage to the Property.
L. Governing Law. This Contract will be construed under and governed by the laws of the State of
Texas, and unless otherwise provided in this Contract, all obligations of the parties created under this Contract
are to be performed in the county where the Property is located.
M. Severability. If any provision of this Contract is held to be invalid, illegal, or unenforceable by a
court of competent jurisdiction, the invalid, illegal, or unenforceable provision will not affect any other
provisions, and this Contract will be construed as if the invalid, illegal, or unenforceable provision is severed
and deleted from this Contract.
N. Broker Disclaimer. The Brokers will disclose to Purchaser any material factual knowledge the
Brokers may possess about the condition of the Property. Purchaser understands that a real estate broker is
not an expert in matters of law, tax, financing, surveying, hazardous materials, engineering, construction,
safety, zoning, land planning, architecture, or the Americans with Disabilities Act. Purchaser should seek
expert assistance on such matters. The Brokers do not investigate a property's compliance with building
codes, governmental ordinances, statutes and laws that relate to the use or condition of the Property or its
construction, or that relate to its acquisition. Purchaser is not relying upon any representations of the Brokers
concerning permitted uses of the Property or with respect to any nonconformance of the Property. If the
Brokers provide names of consultants or sources for advice or assistance, the Brokers do not warrant the
services of the advisors or their products. The Brokers cannot warrant the suitability of property to be
acquired. Purchaser acknowledges that current and future federal, state and local laws and regulations may
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require any Hazardous Materials to be removed at the expense of those persons who may have had or
continue to have any interest in the Property. The expense of such removal may be substantial. Purchaser
agrees to look solely to experts and professionals selected or approved by Purchaser to advise Purchaser with
respect to the condition of the Property and will not hold the Brokers responsible for any condition relating to
the Property. The Brokers do not warrant that Seller will disclose any or all property defects or other matters
pertaining to the Property or its condition. Seller and Purchaser agree to hold the Brokers harmless from any
damages, claims, costs and expenses including, but not limited to, reasonable attorneys' fees and court costs,
resulting from or related to any person furnishing any false, incorrect or inaccurate information with respect to
the Property, Seller's concealing any material information with respect to the condition of the Property, or
matters that should be analyzed by experts. To the extent permitted by applicable law, the Brokers' liability for
errors or omissions, negligence, or otherwise, is limited to the return of the Fee, if any, paid to the responsible
Broker pursuant to this Contract. The parties agree that they are not relying upon any oral statements that the
Brokers may have made. Purchaser is relying solely upon Purchaser's own investigations and the
representations of Seller, if any, and Purchaser acknowledges that the Brokers have not made any warranty or
representation with respect to the condition of the Property or otherwise.
O. Counterparts. This Contract may be executed in a number of identical counterparts, and all
counterparts will be construed together as one agreement. Any signed counterpart transmitted by Fax or email
has the same effect as an original.
P. Patriot Act Representation. Seller and Purchaser each represent to the other that: (1) its property
interests are not blocked by Executive Order No. 13224, 66 Fed. Reg. 49079; (2) it is not a person listed on
the Specially Designated Nationals and Blocked Persons list of the Office of Foreign Assets Control of the
United States Department of the Treasury; and (3) it is not acting for or on behalf of any person on that list.
Q. Exchange. Seller and Purchaser shall cooperate with each other in connection with any tax
deferred exchange that either party may be initiating or completing in connection with Section 1031 of the
Internal Revenue Code, so long as neither party will be required to pay any expenses related to the other
party's exchange and the Closing is not delayed. Notwithstanding any other provision that may prohibit the
assignment of this Contract, either party may assign this Contract to a qualified intermediary or exchange
accommodation title holder, if the assignment is required in connection with the exchange. The parties agree
to cooperate with each other, and sign any reasonable documentation that may be required, to effectuate any
such exchange.
20. STATUTORY NOTICES.
A. Abstract or Title Policy. At the time of the execution of this Contract, Purchaser acknowledges
that the Brokers have advised and hereby advise Purchaser, by this writing, that Purchaser should have the
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.
B. Notice Regarding Unimproved Property Located in a Certificated Service Area. If the Property
is unimproved and is located in a certificated service area of a utility service, then Seller shall give to
Purchaser a written notice in compliance with §13.257 of the Texas Water Code, and Purchaser agrees to
acknowledge receipt of the notice in writing. The notice must set forth the correct name of utility service
provider authorized by law to provide water or sewer service to the Property, and must comply with all other
applicable requirements of the Texas Water Code.
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C. Special Assessment Districts. If the Property is situated within a uU|hn district or flood control
district subject to the provisions of §48.453 of the Texas VVotor Coda. than Seller shall give to Purchaser the
required written notice and Purchaser a0naaa to acknowledge receipt of the notice in writing. The notice must
set forth the current tax rate, the current bonded indebtedness and the authorized indebtedness of the district,
and must comply with all other applicable requirements of the Texas Water Code.
D. property Owners' Association. If the Property is subject to mandatory membership in a property
owners' association, Seller shall notify Purchaser of the current annual budget of the property owners'
assooiotion, and the current authorized fees, dues and/or assessments relating tothe Property, In addition,
Seller shall give to Purchaser the vvhtUan notice required under 85.012 of the Taneo Property Cude, if
applicable, and Purchaser agrees to acknowledge receipt of the notice in writing. Also, Seller shall give to
Purchaser the resale certificate required under Chapter 207 of the Texas Property Code, if applicable, and
Purchaser agrees to acknowledge receipt of the resale certificate in writing.
E. Notice Regarding Possible Annexation. If the Property that in the subject of this Contract is
located outside the limits of o municipality, the Property may now or later be included in the extraterritorial
jurisdiction of the municipality and may now or later be subject to annexation by the municipality. Each
municipality maintains a map that depicts its boundaries and extraterritorial jurisdiction. To determine if the
Property is located within a municipality's extraterritorial jurisdiction or is likely to be located within o
municipality's extraterritorial jurindictinn, contact all municipalities located in the general proximity of the
Property for further information.
F. Notice Regarding Coastal Area property. If the Property adjoins or shares a cnnnnlon boundary
with the tidally influenced submerged lands of the state, than 8e||ar shall give to Purchaser a written notice
regarding onoota| area prnparty, in compliance with §33.135 of the Texas Natural Resources Code. and
Purchaser agrees toacknowledge receipt of the notice inwriting.
G. Gulf Intracoastal Waterway Notice. If the Property is located seaward of the Gulf |ntnanooeto|
VVatomvoy. then Seller shall give to Purchaser o written notice regarding the aoovvard location of the Propedy,
in compliance with §01.025 of the Texas Natural Resources Code. and Purchaser agrees to acknowledge
receipt ofthe notice inwriting.
H. Notice for Property Located in an Agricultural Development District. If the Property is located
in an agricultural development distriot, then in accordance with §80.063 ufthe Texas Aohnu|huna| Code: (1)
Seller shall give to Purchaser awritten notice that the Property is located in such e district; (2) Purchaser
agrees to acknowledge receipt of the notice in writing; and (3) at the Qooing, a separate copy of the notice
with current information about the district will be executed by Seller and Purchaser and recorded in the deed
records ofthe county inwhich the Property islocated.
i Certificate of PNm1d RemnmdiaUon. If certificate of mold rennsdiaUon has been issued for the
Property under Section 1958.154 of the Occupations Code within the preceding five years, Seller is required to
provide ocopy ofthe certificate hoPurchaser.
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J. Notice of Water Level Fluctuations. If the Property adjoins a lake, reservoir, or other
impoundment of water that has a storage capacity of at least 5,000 acre-feet at the impoundment's normal
operating level, then the following notice applies:
NOTICE OF WATER LEVEL FLUCTUATIONS: The water level of the impoundment of water adjoining
the Property fluctuates for various reasons, including as a result of: (1) an entity lawfully exercising its
right to use the water stored in the impoundment; or (2) drought or flood conditions.
K. Disclosure of Dual Capacity as Broker and Principal. [Complete if
applicable]
is a licensed Texas real estate agent and is acting in a
dual capacity as broker for the Purchaser and as a principal in this transaction, as he or she
may be the Purchaser (or one of the owners of the Purchaser after any assignment of this Contract).
is a licensed Texas real estate agent and is acting in a
dual capacity as broker for the Seller and as a principal in this transaction, as he or she may be
the Seller (or one of the owners of the Seller).
21. DISPUTE RESOLUTION.
A. Mediation. If any dispute (the "Dispute") arises between any of the parties to this Contract
including, but not limited to, payment of the Fee, then any party (including any Broker) may give written notice
to the other parties requiring all involved parties to attempt to resolve the Dispute by mediation. Except in
those circumstances where a party reasonably believes that an applicable statute of limitations period is about
to expire, or a party requires injunctive or equitable relief, the parties are obligated to use this mediation
procedure before initiating arbitration or any other action. Within seven days after receipt of the mediation
notice, each party must deliver a written designation to all other parties stating the names of one or more
individuals with authority to resolve the Dispute on such party's behalf. Within 14 days after receipt of the
mediation notice, the parties shall make a good faith effort to select a qualified mediator to mediate the
Dispute. If the parties are unable to timely agree upon a mutually acceptable mediator, any party may request
any state or federal judge to appoint a mediator. In consultation with the mediator, the parties shall promptly
designate a mutually convenient time and place for the mediation that is no later than 30 days after the date
the mediator is selected. In the mediation, each party must be represented by persons with authority and
discretion to negotiate a resolution of the Dispute, and may be represented by counsel. The mediation will be
governed by applicable provisions of Chapter 154 of the Texas Civil Practice and Remedies Code, and such
other rules as the mediator may prescribe. The fees and expenses of the mediator will be shared equally by all
parties included in the Dispute.
(including the Brokers) shall submit the Disp Ite to binding arbitration before a single arbitrator. The Dis
en
acceptable to all parties. If the parties are unable to agree upon the selection of an arbitrator, then any party
may request any state or federal judge to appoint an arbitrator. This agreement to arbitrate will be specifically
enforceable under the prevailing arbitration law
©Copyright 2015 NTCAR - Form No. 1 (11/2015)
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23.CCJNSULT AN ATTORNEY. This Contract is a |aga|k/ binding agreement. The Brokers cannot give
legal advice. The parties to this Contract acknowledge that they have been advised to have this Contract
reviewed by legal counsel before signing this Contract.
Purchaser's attorney: Seller's attorney:
Name: Aaron C. Lee Law Firm, PLLC
Address:1333 W. McDermott Drive, STE11O
Allen, Texas 75013
Phone: 469-519-7814
Fax: 888-282-5554
Email: aenon@ac|eek*xvoonm
Nome: Chris ZiUmmer,Abernathy, Roeder, Boyd &
Hullett, P.C.
Address: 17OORmdbudBlvd,Suite 3O0
McKinney, Texas 750G9
Phone: 214-544'4046
Fox: 214'544'4044
Email: cziUmner(cDabernathy'bavxomrn
23.EXH|B|TS AND AC)C)E0D/\ All Exhibits and Addenda attached to this Contract are incorporated
herein by reference and made a part of this Contract for all purposes [check all thatapply]:
�
X
Exhibit "A"
ExMbit"EY'
Exhibit"C"
Exhibit "D"
Addendum
Addendum B'1
Addendum B-2
Addendum B-3
Addendum C
Addendum [}
Addendum E
Addendum F
Legal Description
Site Plan
Information About Brokerage Services
Schedule ofPersonal Property
Third Party Financing
Seller Financing
Existing Loan
Disclosure Notice
Lead Based Paint
Additional Provisions
24. CONTRACT AS OFFER. The execution of this Contract by the first party to do so constitutes on offer
to purchase or sell the Property. If the other party does not accept that offer by signing this Contract and
delivering ofully executed copy tothe first party bvthe earlier nfthis date AuquatJO,2Q19 or the
dote that is 10 days after the date this Contract is executed by the first porty, then that offer will be deemed to
have been automatically withdrawn, in which case the Earnest Monay, if any, will be returned to Purchaser.
Any acceptance of an offer that has been withdrawn will be effective only if the podv that withdrew the offer
subsequently agrees to the acceptance either in writing or by course of conduct.
25.4O[J|T|<JNAL PROVISIONS. [Additional provisions may be set forth below ormn any attached
Addendum].
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This Contract is executed to be effective as of the date the Title Company acknowledges receipt of this fully
executed Contract as indicated by the signature block for the Title Company (the Effective Date).
City of Wylie
By: (Signature)
Name: Chris Hoisted
Date ofExecution:
By: (Signature)
Name:
Title:
Date ofExecution:
PRINCIPAL BROKER:
Edge Realty Partners LLC
By: (Signature)
Nome: BhanWaxker
Title: Agent
Dallas, Texas 75225
Phone: 214'545-6900
Email: bwaxier@edge-re.com
TRECLicense Nn.: 594592
@cvvvngmumswToxn'Form No. 1(nmos)
Mulligan Foods RE 2 LLC and/or Assigns
By: (Signature)
Name: Todd Kniqht
Title: Managing Member
Date of Execution:
By: (Signature)
Nome:
Title:
Date nfExecution:
COOPERATING BROKER:
Vision Commercial RE DFW LLC
By: (Signature)
Name: RogerSnoehzmr, Jr.
Title: Broker
Address: 134OS.Main Street, STE3D5
Grapevine, Texas 76051
Phone: 817'003-3287
Fax:
Email: rogerpvisionoommnerciaioomn
TREC License No.: 9000294
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TITLE COMPANY RECEIPT: The Title Company acknowledges receipt of this Contract on
(the Effective Date). Upon receipt of the Earnest Money, the Title Company accepts the Earnest Money
subject to the terms and conditions set forth in this Contract.
TITLE COMPANY:
By: (Signature)
Name:
Title:
Address:
Phone:
Fax:
Email:
PERMISSION TO USE: This form is provided for use by members of the North Texas Commercial Association of
Realtors®, Inc. ("NTCAR'), members of the North Texas Commercial Association of Real Estate Professionals, Inc., and
other licensed users of an NTCAR electronic forms system. Permission is given to make limited copies of the current
version of this form for use in a particular Texas real estate transaction. Please contact the NTCAR office to confirm you
are using the current version of this form. Mass production, or reproduction for resale, is not allowed without express
permission. Any changes to this form must be made in a manner that is obvious. If any words are deleted, they must be
left in the form with a line drawn through them. If changes are made that are not obvious, the person who made the
change could be subject to a claim of fraud or misrepresentation for passing off an altered form as if it were the genuine
NTCAR form.
©Copyright 2015 NTCAR - Form No. 1 (11/2015) Page 24
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Vision Commercial Real Estate
NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS®
ADDENDUM B-1 TO COMMERCIAL CONTRACT OF SALE
THIRD PARTY FINANCING
Property address or description: Southern 1.60459 acres property described in Constable's Deed recorded in real estate records
of Collin County, Texas CC# 20151207001523850 (Vol. 952, PG 911)
1. THIRD PARTY FINANCING. (Choose one]:
`� This Contract is subject to Purchaser obtaining approval from a third party lender of financing
in the amount of $ , payable in monthly installments based on
an amortization of not less than years, with a payment term of not less than
years, and with the initial interest rate notto exceed
per annum for the first years of the loan.
D/o
X This Contract is subject to Purchaser obtaining approval from a third party lender of financing
upon terms acceptable to Purchaser.
2. APPLICATION. Purchaser shall apply for the desired third party financing approval
within seven days after the Effective Date and shall use reasonable efforts to obtain the
financing approval.
3. FINANCING CONTINGENCY. If Purchaser does not obtain the financing approval by
the date that is days (the "Financing Contingency Period") after the
Effective —Date, trheen Purchaser may terminate this Contract by delivering a written notice to
Seller within five days after the end of the Financing Contingency Period (but in any event
before the Closing). Purchaser shall deliver a written notice to Seller confirming Purchaser has
obtained the financing approval promptly after Purchaser receives the approval. If Seller does not
receive that notice on or before the date that is two business days after the end of the Financing
Contingency Period, then Seller may terminate this Contract by delivering a written notice to
Purchaser at any time thereafter until Seller receives that notice (but in any event before the
Closing). If either party terminates this Contract pursuant to this Section, the Earnest Money will be
returned to Purchaser.
©Copyright 2015 NTCAR - Form No.1 (11/2015) ADDENDUM B-1
Vision Commercial Real Estate, 3312 Stonecrest Dr Grapevine TX 76051 Phone: 8173202600 Fax'. 8177044621
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Vision Commercial Real Estate
NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS®
EXHIBIT "A" TO COMMERCIAL CONTRACT OF SALE
LEGAL DESCRIPTION
Property address ordescription:
Southern 1.60459 acres property described in Constable's Deed recorded in real estate records of Collin County, Texas
CC# 20151207001523850 (Vol. 952, PG 911)
Vision Commercial Real Estate. 3312 Stonecrest Dr Grapevine TX 76051 Phone: 8173202600 Fax 8177044621 DELETE
Roger Smeltzer Produced with zipForrr60 by zipLogix 18070 Fifteen Mile Road, Fraser, Michigan 48026 vp.vwzipLooix.com
ADDENDUM TO COMMERCIAL CONTRACT OF SALE (THE "CONTRACT')
by and between City of Wylie, Texas, a Texas municipality ("Seller") and Mulligan Foods RE 2,
LLC and/or Assignees ("Purchaser") for sale and purchase of the southern -most 1.60459 acres
of a certain unimproved property described in Constable's Deed recorded in the Official Public
Records of Collin County, Texas under CC# 20151207001523850 (Vol. 952, Pg. 911) (the
"Property")
The provisions of this Addendum modify and amend the Contract and all other addenda to
which this Addendum is attached. In the event of conflict between the terms and conditions of the
Contract and of all other addenda attached thereto and the terms and conditions of this Addendum,
the terms and conditions of this Addendum shall govern and control. The defined terms used herein,
not otherwise defined in this Addendum, shall have the meaning ascribed to them in the Contract.
1. Any reference made to days or number of days in the Contract and this Addendum shall
mean calendar days unless otherwise expressly defined or specified therein.
2. Any reference made to 'this Contract', 'the Contract', `Contract' or any other form of the
word Contract herein shall mean the Contract, together with all other addenda and this
Addendum.
3. That certain 4.67 acres unimproved tract described in Constable's Deed recorded in the
Official Public Records of Collin County, Texas under CC# 20151207001523850 (Vol.
952, Pg. 911) is referred to herein as the "Parent Tract."
4. Section 4.0 of the Contract is hereby amended by adding the following sentence at the end
of the first paragraph of Section 4.C;
"Purchaser shall deliver to the Title Company the Earnest Money required under this
Section 4.0 within ten (10) days after the Effective Date."
5. Section 5.A of the Contract is hereby amended by adding the following paragraph in place
of the first section crossed out on the Contract;
"Within 30 days after the Effective Date, Seller shall deliver to Purchaser and to the Title
Company a new survey of the Property prepared at Seller's sole expense in a form in strict
compliance with the requirements listed in this Section 5.A and to the satisfaction of
Purchaser and the Title Company."
6. Section 10.B(1) of the Contract is hereby amended by deleting the phrase "after the
Effective Date" at the end of the first sentence and replacing the deleted phrase with the
following phrase;
Addendum to Commercial Contract of Sale Pg. 1
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"after the date on which Purchaser receives the last of Seller's documents required under
Section 5 of the Contract."
7. Section 1 0.B(2) of the Contract is hereby amended by adding the following sentence to the
end of this Section;
"Upon Purchaser's exercise of its right to extend the Inspection Period in accordance with
this Section 10.B(2), as amended, the Earnest Money shall become non-refundable to
Purchaser unless the Contract is terminated by a default by Seller."
8. Section 10.C(a) of the Contract is hereby amended by adding the following paragraphs to
the end of this Section;
"Seller shall deliver to Purchaser the "Phase!" report within 30 days after the Effective
Date. If the results found in the "Phase 1" report determines that a written "Phase 2" report
is necessary, then Seller shall, at Seller's sole expense, cause a written "Phase 2" report to
be prepared by an environmental consultant reasonably acceptable to Purchaser and deliver
the same to Purchaser within 20 days after the date on which Purchase notifies Seller in
writing of such determination."
"Purchaser hereby acknowledges that Seller, as the responsible party, is currently
undergoing a voluntary cleanup program through the Texas Commission on Environmental
Quality ("TCEQ"), TCEQ Voluntary Cleanup Program ID Number 2964 (the "VCP"), for
the remediation of the prior contamination at the Property. Within ten (10) days after the
Effective Date, Seller shall deliver to Purchaser all correspondences and documents Seller
has in its possession related to the VCP, Further, Seller shall deliver a final VCP certificate
of completion issued by TCEQ (the "VCP Certificate") within thirty (30) days after the
expiration of the Inspection Period. The VCP Certificate shall meet the requirements of
Purchaser's lender. Seller's failure to timely deliver all Seller's reports and documents,
including the VCP Certificate, required under this Section 10.C(a), as amended, shall
constitute a default by Seller."
9. The Closing under Section 15.A of the Contract shall be held no later than the 30th day
after the occurrence of the last of the following events;
a. the expiration of the Inspection Period;
b. Purchaser's replat of the Property separating the Property from the Parent Tract and
the recordation of the same in the Official Public Records of Collin County, Texas
(the "Replat");
c. Seller's issuance of a street address for the Property;
Addendum to Commercial Contract of Sale P9. 2
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d. Purchaser's receipt of the approval by the City of Wylie of either a special use
permit or an appropriate zoning change, if such approval is necessary for the
purposes of Purchaser's intended use of the Property; and
e. Seller's delivery to Purchaser of the VCP Certificate.
10. Section 16.A of the Contract is hereby amended by adding the following sentence to the
end of the section;
"The foregoing will be Purchaser's sole and exclusive remedies for Seller's default."
11 Notwithstanding any provisions to the contrary in the Contract, any subsequent
amendment(s) to the Contract, or any addenda to the Contract, in the event Seller fails to
deliver the items listed under the preceding Section 8 hereinabove on or before February
15, 2020, such failure shall constitute a default by Seller and Purchaser shall be released
from Purchaser's obligation to close the transaction contemplated in the Contract and shall
receive the Earnest Money, together with any other damages or compensations allowed to
Purchaser under the Contract, and the Contract shall immediately terminate and be of no
further force or effect without any further liability or obligation to the other, except as
otherwise expressly provided herein.
12. Section 18.A of the Contract is hereby amended by deleting it in its entirety and replacing
it with the following;
"The Fee will be earned upon the successful closing and funding of the transaction
described in this Contract. Each party represents and warrants to the other that except for
the entities and/or individuals identified on page 23 of the Contract, no brokers or finders
have been engaged by it in connection with the transaction contemplated by this Contract,
or, to its knowledge, is in any way connected with any such transaction. In the event of any
claim for Brokers' or finders' fees or commissions in connection with the negotiation,
execution, or consummation of this Contract, then each party, to the extent permitted by
law, will indemnify, hold harmless, and defend the other party from and against any such
claim based on any statement, representation, or agreement made by or allegedly made by
the party. This indemnity expressly will survive the Closing or termination of this Contract."
13. Notwithstanding any provisions to the contrary in the Contract, any subsequent
amendment(s) to the Contract, or any addenda to the Contract, Purchaser shall not be
responsible for or held liable for the Professional Service Fee, either in whole or part, under
Section 18 of the Contract.
Addendum to Commercial Contract of Sale Pg. 3
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14. The "Financing Contingency Period" under Section 3 of Addendum B-1 to the Contract
"Third Party Financing" shall expire on the 15th day after the date on which Seller delivers
the VCP Certificate to Purchaser.
15 Seller and Purchaser hereby agree to share the cost of the construction of an access road,
in equal share, along the western boundary line of the Property. Seller (or Purchaser) shall
be responsible for the construction of the road. The Parties agree to use their commercially
reasonable efforts to negotiate and execute an acceptable form of a construction agreement
for the road prior the expiration of the Inspection Period.
16. Purchaser shall, at its sole expense, install a vapor barrier during its construction of a 10,000
square foot multi -tenant commercial structure (the "Shopping Center"). Seller shall
reimburse Purchaser its actual cost of the installation of the vapor barrier upon the issuance
of the certificate of occupancy for the Shopping Center. The Parties agree to use their
commercially reasonable efforts to negotiate and execute an acceptable form of an escrow
agreement prior the expiration of the Inspection Period for Seller's deposit of $50,000.00
at the Closing.
17. The Parties agree to cooperate in good faith to satisfy all requirements prescribed under the
Texas Local Government Code (the "Code") pertaining to the sale of a real property at a
`below -market' price and/or an economic development program agreement under chapter
380 of the Code.
18. Purchaser will deliver its current building elevations for the Property to Seller prior to
expiration of the Inspection Period for review and approval by Seller. The City's right to
approve the building elevations and materials for the Property will he included in the deed
to be delivered to Purchaser at Closing as deed restrictions. The parties agree that upon
completion of construction of the applicable improvements in accordance with the
approved building elevations and materials, the City shall execute and record an instrument
releasing the Property from the deed restrictions.
19. Purchaser shall complete and file the Replat, at Purchaser's expense, within one hundred
eighty (180) days from the Effective Date of the Contract. Seller hereby covenants that it
will cooperate in good faith, with due diligence as necessary, to assist Purchaser's efforts
to complete and file the Replat. Seller shall reimburse Purchase the full actual expenses
Purchaser incurred in completing and filing the Replat, up to but not to exceed $5,000.00.
20. Neither Seller nor any of its council members (i) is listed on the Specially Designated
Nationals and Blocked Persons List maintained by the Office of Foreign Asset Control,
Department of the Treasury ("OFAC") pursuant to Executive Order No. 13224, 66 Fed.
Addendum to Commercial Contract of Sale Pg. 4
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Reg. 49079 (September 25, 2001) (the "Order"); (ii) is listed on any other list of terrorists
or terrorist organizations maintained pursuant to the Order, the rules and regulations of
OFAC or any other applicable requirements contained in any enabling legislation or other
Executive Orders in respect of the Order (the Order and such other rules, regulations,
legislation or orders are collectively called the "Orders"); (iii) is engaged in activities
prohibited in the Orders; or (iv) has been convicted, pleaded nolo contendere, indicted,
arraigned or custodially detained on charges involving money laundering or predicate
crimes to money laundering.
21. Neither Purchaser nor any of its members, partners, shareholders, or stockholders (i) is
listed on the Specially Designated Nationals and Blocked Persons List maintained by
OFAC pursuant to the Order; (ii) is listed on any other list of terrorists or terrorist
organizations maintained pursuant to the Orders; (iii) is engaged in activities prohibited in
the Orders; or (iv) has been convicted, pleaded nolo contendere, indicted, arraigned or
custodially detained on charges involving money laundering or predicate crimes to money
laundering.
22. Pursuant to the requirements of Texas Government Code Chapter 2270, Purchaser verifies
that it does not boycott Israel, and it will not boycott Israel during the term of the Contract.
23. The following AS -IS provision is hereby incorporated into the Contract and shall also be
included in the deed to be delivered to Purchaser at Closing:
AS IS. IT IS UNDERSTOOD AND AGREED THAT, EXCEPT AS OTHERWISE
PROVIDED IN THIS THE CONTRACT AND THIS ADDENDUM TO THE
CONTRACT, AND EXCEPT FOR THE WARRANTY OF TITLE CONTAINED IN
THE DEED, (A) THE PROPERTY IS SOLD BY SELLER AND PURCHASED AND
ACCEPTED BY PURCHASER ON AN "AS IS," "WHERE IS" AND "WITH ALL
FAULTS" BASIS, SUBJECT TO ANY CONDITION WHICH MAY EXIST, AND
WITHOUT THE EXISTENCE OF AND WITHOUT RELIANCE UPON ANY
REPRESENTATION, WARRANTY, AGREEMENT, OR STATEMENT BY SELLER,
OR ANYONE ACTING ON BEHALF OF SELLER, INCLUDING, WITHOUT
LIMITATION, ANY BROKER, ENGINEER, ARCHITECT, ATTORNEY, SURVEYOR,
APPRAISER, OR ENVIRONMENTAL CONSULTANT; (B) PURCHASER HAS OR
WILL HAVE, PRIOR TO THE CLOSING, THOROUGHLY INSPECTED AND
EXAMINED THE PROPERTY TO THE EXTENT DEEMED NECESSARY BY
PURCHASER IN ORDER TO ENABLE PURCHASER TO EVALUATE THE
PURCHASE OF THE PROPERTY ON THE FOREGOING BASIS; (C) PURCHASER
IS RELYING SOLELY UPON SUCH INSPECTIONS, EXAMINATION, AND
EVALUATION OF THE PROPERTY BY PURCHASER IN PURCHASING THE
Addendum to Commercial Contract of Sale Pg. 5
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PROPERTY ON AN "AS IS", "WHERE IS" AND "WITH ALL FAULTS" BASIS,
WITHOUT REPRESENTATION, WARRANTY, AGREEMENT OR STATEMENT BY
SELLER OR ANYONE ACTING ON BEHALF OF SELLER, EXPRESS OR IMPLIED,
OF ANY KIND OR NATURE, OTHER THAN THE WARRANTY OF TITLE
CONTAINED IN THE DEED; AND (D) PURCHASER HEREBY ASSUMES THE RISK
THAT ENVIRONMENTAL CONDITIONS (AS DEFINED HEREIN) MAY EXIST ON
THE PROPERTY AND HEREBY RELEASES SELLER OF AND FROM ANY AND
ALL CLAIMS, ACTIONS, DEMANDS, RIGHTS, DAMAGES, COSTS OR EXPENSES
(COLLECTIVELY THE "CLAIMS") WHICH MIGHT ARISE OUT OF OR IN
CONNECTION WITH THE ENVIRONMENTAL CONDITION OF THE PROPERTY.
AS USED HEREIN, THE TERM "ENVIRONMENTAL CONDITION" SHALL MEAN
ANY CONDITION WITH RESPECT TO THE PROPERTY WHICH COULD OR DOES
RESULT IN ANY CLAIM AGAINST THE OWNER OF THE PROPERTY BY ANY
THIRD PARTY (INCLUDING ANY GOVERNMENTAL ENTITY) UNDER (1) THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND
LIABILITY ACT, 42 U.S.C. § 9601 ET SEQ., (2) THE RESOURCE CONSERVATION
AND RECOVERY ACT, 42 U.S.C. § 6901 ET SEQ., (3) THE FEDERAL WATER
POLLUTION CONTROL ACT, 33 U.S.C. § 2601 ET SEQ., (4) THE OIL POLLUTION
ACT, 33 U.S.C. § 2701 ET SEQ., (5) THE TOXIC SUBSTANCES CONTROL ACT, 15
U.S.C. § 2601 ET SEQ., (6) THE CLEAN WATER ACT, 33 U.S.C. § 1251 ET SEQ., (7)
THE CLEAN AIR ACT, 42 U.S.C. § 7401 ET SEQ., (8) THE HAZARDOUS
MATERIALS TRANSPORTATION ACT, 49 U.S.C. § 1801 ET SEQ., (9) THE
OCCUPATIONAL SAFETY AND HEALTH ACT, 29 U.S.C. § 651 ET SEQ., (10) THE
TEXAS SOLID WASTE DISPOSAL ACT, TEX. HEALTH & SAFETY CODE ANN.
§361, ET SEQ., AND/OR (11) SIMILAR STATE AND LOCAL LAWS, NOW OR
HEREAFTER EXISTING, ALL AS AMENDED FROM TIME TO TIME, AND ALL
REGULATIONS, RULES AND GUIDANCE ISSUED PURSUANT THERETO,
INCLUDING, WITHOUT LIMITATION, ANY CONDITION RESULTING FROM
OPERATIONS CONDUCTED ON THE PROPERTY OR ON PROPERTY ADJACENT
THERETO. SELLER SHALL NOT HAVE (AND PURCHASER WAIVES) ANY
OBLIGATION TO DISCLOSE FACTS REGARDING THE PROPERTY (INCLUDING,
WITHOUT LIMITATION, ANY ENVIRONMENTAL CONDITION AFFECTING THE
PROPERTY), REGARDLESS OF WHETHER SUCH FACTS ARE DISCOVERABLE
BY THE PURCHASER. THE PROVISIONS OF THIS PARAGRAPH SHALL
SURVIVE THE CLOSING OR ANY TERMINATION HEREOF AND SHALL BE
CONTAINED IN THE DEED.
NOTWITHSTANDING THE FOREGOING, AND AS A MATERIAL INDUCEMENT
FOR PURCHASER TO EXECUTE THE CONTRACT AND THIS ADDENDUEM TO
THE CONTRACT AND TO CONSUMMATE THE TRANSACTION
Addendum to Commercial Contract of Sale Pg. 6
Last Update: 11/7/2019 3:07 PM
CONTEMPLATED BY THE CONTRACT AND HEREBY, SELLER HEREBY
REPRESENTS, WARRANTS, AND COVENANTS TO PURCHASER THAT THE
REMEDIATION OF THE PRIOR CONTAMINATION AT THE PROPERTY HAS
BEEN FULLY COMPLETED OR WILL BE COMPLETED BY THE CLOSING DATE
AND THAT TCEQ HAS ISSUED OR WILL ISSUE BY THE CLOSING DATE THE
VCP CERTIFICATE FOR THE PROPERTY. TO SELLER'S KNOWLEDGE, THE
PROPERTY IS OR WILL BE DECLARED SUITABLE FOR REDEVELOPMENT FOR
PURCHASER'S INTENDED USE.
[SIGNATURE PAGES TO FOLLOW]
Addendum to Commercial Contract of Sale Pg. 7
Last Update: 11/7/2019 3:07 PM
SELLER SIGNATURE PAGE
SELLER
City of Wylie
A Texas municipality
By:
Name: Chris Holsted
Its: City Manager
Date:
Addendum to Commercial Contract of Sale Seller's Signature Page - Pg. 8
PURCHASER SIGNATURE PAGE
PURCHASER:
Mulligan Foods RE 2, LLC
A Texas limited liability company
By:
Name: Todd Knight
Its: Manager
Date:
Addendum to Commercial Contract of Sale Purchaser's Signature Page - Pg. 9
