06-19-2017 (WEDC) Agenda Packet NOTICE OF MEETING
Wylie Economic Developm
C R P O RATION
Special Meeting Agenda
June 19, 2017—7:30 A.M.
WEDC Offices—Conference Room
250 South Highway 78 —Wylie, Texas
Marvin Fuller President
Todd Winders Vice President
John Yeager Secretary
Demond Dawkins Treasurer
Bryan Brokaw Board Member
Mayor Eric Hogue Ex-Officio Member
Mindy Manson,City Manager Ex-Officio Member
Samuel Satterwhite Executive Director
Jason Greiner Assistant Director
Angel Wygant Senior Assistant
In accordance with Section 551.042 of the Texas Government Code, this agenda has been posted at the Wylie
Municipal Complex, distributed to the appropriate news media, and posted on the City Website: www.wylietexas.gov
within the required time frame.
CALL TO ORDER
Announce the presence of a Quorum.
CITIZEN PARTICIPATION
Residents may address the WEDC Board regarding an item that is or is not listed on the agenda. Residents must
provide their name and address. The WEDC Board requests that comments be limited to three (3) minutes. In
addition, the WEDC Board is not allowed to converse, deliberate or take action on any matter presented during citizen
participation.
ACTION ITEMS
I. Consider and act upon approval of the May 17, 2017 Minutes of the Wylie Economic
Development Corporation(WEDC) Board of Directors Meeting.
II. Consider and act upon approval of Resolution No. 2017-01(R)ratifying the Purchase and Sale
Agreement and all subsequent Amendments between the Wylie Economic Development
Corporation (WEDC) and Chick-Fil-A, Inc. for the sale of approximately 1.53 acres also
known as Lot 5R Railroad Industrial Park Addition,Wylie,Texas as recorded in Volume 2017,
Page 307 of the plat records of Collin County, Texas, further authorizing WEDC President
Marvin Fuller to execute all documents necessary to effectuate the sale.
ADJOURNMENT
CERTIFICATION
I certib; that this Notice of Meeting was posted on this 15th day of June 2017 at 5:00 p.m. as required by law in
accordance with Section 551.042 of the Texas Government Code and that the appropriate news media was contacted.
As a courtesy, this agenda is also posted on the City of Wylie website: www.wylietexas.gov.
Carole Ehrlich,City Secretary Date Notice Removed
Minutes
Wylie Economic Development Corporation
Board of Directors Meeting
Wednesday, May 17, 2017—6:30 A.M.
WEDC Offices—Conference Room
250 South Highway 78 —Wylie, Texas
CALL TO ORDER
Announce the presence of a Quorum
President Marvin Fuller called the meeting to order at 6:33 a.m. Board Members present were John
Yeager, Todd Wintters and Bryan Brokaw.
Ex-officio members Mayor Eric Hogue and City Manager Mindy Manson were present.
WEDC staff present was Executive Director Sam Satterwhite, Assistant Director Jason Greiner and
Senior Assistant Angel Wygant.
CITIZEN PARTICIPATION
President Fuller welcomed citizen guest Lynn Grimes. Ms. Grimes thanked the Board for their support
of the Taste of Wylie which was a successful fundraiser for the Christian Care Center.
With no further citizen participation, President Fuller proceeded to Action Items.
ACTION ITEMS
ITEM NO. 1 — Consider and act upon approval of the April 19, 2017 Minutes of the Wylie
Economic Development Corporation (WEDC) Board of Directors Meeting.
Staff called the Board's attention to a typographical error on the item number associated with the Staff
Report in the Minutes. Item No. 9 should have read Item No. 6.
MOTION: A motion was made by John Yeager and seconded by
Bryan Brokaw to approve the April 19, 2017 Minutes of the Wylie Economic
Development Corporation as amended. The WEDC Board voted 4 —FOR and 0 —
AGAINST in favor of the motion.
ITEM NO. 2—Consider and act upon approval of the April 2017 WEDC Treasurers Report.
MOTION: A motion was made by Todd Wintters and seconded by
John Yeager to approve the April 2017 Treasurers Report for the Wylie Economic
Development Corporation. The WEDC Board voted 4 — FOR and 0 —AGAINST
in favor of the motion.
WEDC—Minutes
May 17, 2017
Page 2 of 6
ITEM NO. 3 — Consider and act upon a Performance Agreement between Metalbilia and the
WEDC.
Mr. Greiner presented a Performance Agreement between Metalbilia and the WEDC for consideration
by the Board explaining that Mr. Patrick Payton initially came to the WEDC in an attempt to evaluate
his options for a new facility in Wylie, TX. Mr. Payton planned to lease an existing structure to help
with immediate production needs,but also knows his production capacity is limited by the size of facility.
Future plans call for larger manufacturing or production space and a possible retail store front. Following
direction from the WEDC Board in Executive Session and an oral commitment by the WEDC staff for
assistance, Mr. Payton started renovation at 108 S. Jackson Ave., Ste. 201.
Mr. Payton expects to hire at least one new full-time employee and his projected expenses for new
equipment are expected to exceed $12,000 this first year. Although this is a smaller project, the WEDC
Board recognizes the need for small business development and assisting our local entrepreneurs as they
grow and expand. The Performance Agreement proposed totals a maximum incentive of$4,800 which
is paid in $1,600 increments within the 10th, 11th, and 12th months of the lease following verification of
expenditures and employment.
Should Metalbilia fail to meet the identified Performance Measures, the entire Performance Agreement
is voided in advance. Further, no partial incentive payments will be provided.
Staff recommended that the WEDC Board of Directors approve a Performance Agreement between
WEDC and Metalbilia providing for a maximum incentive of$4,800 and further authorizing the WEDC
Executive Director to execute said Agreement.
Board Member Fuller inquired about the confidence level of the equipment purchases meeting the
$12,000 requirement. Mr. Greiner explained that the equipment is state of the art and extremely
expensive. The likelihood of obtaining even a minor discount is extremely remote and would not impact
the proposed incentive.
Staff called the Board's attention to a correction needed in the Performance Agreement in that the
$12,000 required equipment purchase is associated with Incentive No. 1 rather than Incentive No. 3.
The correction was made in the body of the text but not in the Table and will be corrected prior to
execution of the Performance Agreement.
MOTION: A motion was made by Todd Wintters and seconded by
Bryan Brokaw to approve a Performance Agreement, as amended,between WEDC
and Metalbilia providing for a maximum incentive of$4,800 and further authorizing
the WEDC Executive Director to execute said Agreement. The WEDC Board voted
4—FOR and 0—AGAINST in favor of the motion.
WEDC—Minutes
May 17, 2017
Page 3 of 6
ITEM NO. 4- Consider and act upon a Second Amendment to a Performance Agreement between
KREA Acquisition, LLC and the WEDC.
Staff reviewed that on July 29, 2015, the WEDC entered into a Performance Agreement with KREA
Acquisitions to provide assistance with the construction of Qualified Infrastructure in the amount of
$600,000. On January 20, 2017,the WEDC approved an extension requiring a Certificate of Occupancy
(CO) for the project from March 31, 2017 to May 31, 2017. Due to continuing delays, KREA has
indicated that a CO will not be issued sooner than September 30, 2017. Further, the Board amended the
Start Date to 4 months from CO from the original 6-month time period. The Start Date is defined as the
date upon which the WEDC will provide incentive payments equal to Occupancy Tax generated from
the project.
Based upon continual delays, the project has changed in terms of the cost/benefit along with significant
concern with continual defaults. The `loss' to the community are those Occupancy Taxes that would
have been generated had the project been completed originally in March and then amended to May.
Further,while the property has been assessed at 3.1 mm,it was the WEDC's original understanding from
the CCCAD that hotels were valued on an Income Basis. Therefore, this value may well be contested
with the property not in production.
While staff firmly believes that every project is evaluated on its own merits, there have been previous
incentive programs that have been reduced as the result of multiple Defaults. For example, the Direct
Development(Target)project was reduced from$12 mm in cumulative incentives to $6 mm based upon
several events of default.
Staff proposed a Second Amendment to Performance Agreement which details a recommended response
to multiple events of default by KREA as follows: (a) reduction in potential cumulative incentives from
$600,000 to $450,000, (b) Start Date begins upon issuance of CO, and (c) should a CO not be issued by
November 30, 2017, the WEDC obligation to pay any portion of the Reimbursement Incentive is
terminated.
Staff recommended that the WEDC Board of Directors approve a Second Amendment to the
Performance Agreement extending the date by which KREA Acquisitions, LLC must complete
improvements associated with the La Quinta Inn & Suites to November 30, 2017, amending the Start
Date to the Date upon which the City issues a CO, and terminating WEDC's obligation to fund
Reimbursement Incentives should KREA be in default of Section 2 of the Agreement and subsequent
First Amendment to the Agreement.
MOTION: A motion was made by Todd Wintters and seconded by
John Yeager to approve a Second Amendment to the Performance Agreement
extending the date by which KREA Acquisitions, LLC must complete
improvements associated with the La Quinta Inn & Suites to November 30, 2017,
amending the Start Date to the Date upon which the City issues a CO, and
terminating WEDC's obligation to fund Reimbursement Incentives should KREA
be in default of Section 2 of the Agreement and subsequent First Amendment to the
WEDC—Minutes
May 17, 2017
Page 4 of 6
Agreement. The WEDC Board voted 4 — FOR and 0 —AGAINST in favor of the
motion.
ITEM NO.5—Consider and act upon issues surrounding a Purchase and Sale Agreement between
the WEDC and Chick-Fil-A, Inc.
In the Purchase and Sale Agreement (PSA) the WEDC committed to "assist CFA to attempt to cause
the City to apply all or a portion of the Lane Contribution as a credit against the Development Fees".
The Lane Contribution is a previously negotiated amount ($41,000)which CFA is to pay the WEDC at
closing, compensating the WEDC for a portion of the deceleration lane improvements being constructed
by the WEDC. The Development Fees are equal to $88,108 and must be paid to the City prior to the
issuance of a building permit.
The original thought was that the City would provide a credit against Thoroughfare Impact Fees for
roadway improvements being funded by CFA. However, costs attributed to deceleration lanes do not
qualify for credits under a Development Agreement process the City uses to provide benefits to
developers who make improvements to roadways specifically identified within the City Thoroughfare
Plan.
Rather than have the City enter into a 380 Agreement with CFA to provide the $41,000 benefit, staff is
proposing that it would be more expeditious for the WEDC to forego the collection of the Lane
Contribution from CFA achieving the same result as the previously discussed credits.
Staff recommended that the WEDC Board of Directors authorize the Executive Director to notify the
Title Company that CFA is not required to pay the Lane Contribution called for within the PSA.
MOTION: A motion was made by Bryan Brokaw and seconded by John Yeager to authorize
the Executive Director to notify the Title Company that CFA is not required to pay
the Lane Contribution called for within the PSA. The WEDC Board voted 4—FOR
and 0—AGAINST in favor of the motion.
ITEM NO. 6—Consider and act upon issues surrounding the marketing of WEDC pad sites.
Staff held an open discussion on the merits of engaging a real estate brokerage firm to market WEDC
pad sites on Highway 78 and F.M. 544. With the pending sale of a 1.5 acre pad next to Starbucks to
CFA on or about June 19th and the availability of approximately 3 acres for pad development on F.M.
544 property owned by the City and WEDC, the need for professional assistance at least warrants a
discussion.
All things being equal, the WEDC will be paying 6% fee regardless whether its 3% to our broker and
3%to the buyers' broker, or whether it is the entire 6% to the buyers' broker if we represent ourselves.
Even though we have the Retail Coach seeking out users in addition to staff's efforts, a broker would
add that much more activity to our site.
WEDC—Minutes
May 17, 2017
Page 5 of 6
The Board agreed with staffs' assessment and directed staff to identify multiple commercial brokers in
the Metroplex and bring back a recommendation at a future date.
No action was requested by staff for this item.
DISCUSSION ITEMS
ITEM NO. 7 — Staff report: Staff reviewed issues surrounding a WEDC Performance Agreement
Summary, Woodbridge Crossing,Environmental Activity Summary, ICSC 2017, WEDC Pad Sites, 100
Oak Street, and regional housing starts.
Staff noted for the Board that Woodbridge Crossing tax receipts were up 20% over February 2016 and
we are on track to meet our $6 mm incentive obligation by October 2019, 2 years earlier than originally
anticipated. In addition, the development continues to grow with McAlister's Deli submitting plans for
a location adjacent to and east of Cotton Patch within Woodbridge Crossing.
For ICSC, staff has scheduled 16 confirmed appointments with Brokers and Retailers and identified 13
key sessions relevant to economic development in Wylie. At least one person will attend each of these
sessions.
No action was requested by staff for this item.
EXECUTIVE SESSION
Recessed into Closed Session at 7.•29 a.m. in compliance with Section 551.001, et.seq. Texas Government
Code, to wit:
Section 551.072 (Real Estate) of the Local Government Code, Vernon's Texas Code Annotated (Open
Meetings Act). Consider the sale or acquisition of properties located near the intersection of:
• Brown & Ballard
• Birmingham& Hwy 78
Section 551.087 (Economic Development) of the Local Government Code, Vernon's Texas Code
Annotated (Open Meetings Act).
• Project 2017-3b
• Project 2017-5a
RECONVENE INTO OPEN MEETING
The WEDC Board of Directors reconvened into open session at 7:49 a.m. and took no action.
ADJOURNMENT
With no further business, President Fuller adjourned the WEDC Board meeting at 7:49 a.m.
WEDC—Minutes
May 17, 2017
Page 6 of 6
Marvin Fuller, President
ATTEST:
Samuel Satterwhite, Director
Wylie Economic Development Corporation
MEMORANDUM
TO: WEDC Board of Directors
FROM: Samuel Satterwhite, Executive Director
SUBJECT: Chick-fil-A Closing
DATE: June 15, 2017
Issue
Consider and act upon Resolution No. 2017-01(R)ratifying the Purchase and Sale Agreement and
all subsequent Amendments between the Wylie Economic Development Corporation(WEDC)and
Chick-Fil-A,Inc. for the sale of approximately 1.53 acres also known as Lot 5R Railroad Industrial
Park Addition, Wylie, Texas as recorded in Volume 2017, Page 307 of the plat records of Collin
County, Texas, further authorizing WEDC President Marvin Fuller to execute all documents
necessary to effectuate the sale.
Analysis
Closing on the Chick-fil-A purchase is scheduled for Monday, June 19th. At closing, the WEDC
is required to provide the attached Resolution along with a Certificate of Corporate Resolution
authorizing President Fuller to execute all documents necessary to formalize the transaction.
Further, staff is providing ratification of the Purchase and Sale Agreement along with all
Amendments to the same.
Recommendation
Staff recommends that the WEDC Board of Directors approve Resolution No. 2017-01(R)
ratifying the Purchase and Sale Agreement and all subsequent Amendments between the Wylie
Economic Development Corporation(WEDC)and Chick-Fil-A, Inc. for the sale of approximately
1.53 acres also known as Lot 5R Railroad Industrial Park Addition, Wylie, Texas as recorded in
Volume 2017, Page 307 of the plat records of Collin County, Texas, further authorizing WEDC
President Marvin Fuller to execute all documents necessary to effectuate the sale.
Attachments
Resolution
Certificate of Corporate Resolution
Closing Statement
Purchase and Sale Agreement
First Amendment
Second Amendment
Third Amendment
Fourth Amendment
Fifth Amendment
RESOLUTION NO. 2017-01(R)
RESOLUTION RATIFYING A PURCHASE AND SALE AGREEMENT AND ALL
SUBSEQUENT AMENDMENTS BETWEEN THE WYLIE ECONOMIC
DEVELOPMENT CORPORATION AND CHICK-FIL-A, INC. AND AUTHORIZING
PRESIDENT MARVIN FULLER TO EXECUTE ALL CLOSING DOCUMENTS
REQURED TO CONSUMATE THE SALE OF PROPERTY CONTEMPLATED IN SAID
AGREEMENT.
WHEREAS, the Wylie Economic Development Corporation(the "Corporation")has been
incorporated and exists and operates as a duly constituted authority and instrumentality of the City
of Wylie, (the "City"), pursuant to Chapter 501 of the Texas Local Government Code (the
"Development Corporation Act" or "Act"), and governed as a Type A Corporation under the Act
and Chapter 501 and 504 of the Texas Local Government Code, is qualified to do business, and in
good standing; and
WHEREAS, no proceedings for forfeiture of the certificate of incorporation or for
voluntary or involuntary dissolution of the Corporation are pending; and
WHEREAS, neither the articles of incorporation nor the bylaws of the Corporation limit
the Board of Directors to adopt this Resolution; and
WHEREAS, the Wylie Economic Development Corporation Board of Directors finds and
determines that it is appropriate to approve the Project as an authorized program and expenditure
of the Corporation; and
WHEREAS, the Corporation entered into a Purchase and Sale Agreement, along with
subsequent Amendments to the Agreement, with Chick-fil-A, Inc. dated September 14, 2016 to
sell approximately 1.53 acres located at the northeast corner of State Highway 78 and Cooper
Drive (more specifically known as Lot 5R Railroad Industrial Park Addition, Wylie, Texas as
recorded in Volume 2017, Page 307 of the plat records of Collin County, Texas) for the Purchase
Price of$1,350,000.00 in addition to other consideration identified in the Agreement; and
WHEREAS, the President, Marvin Fuller, is hereby authorized in the name of this
Corporation and as its own act to execute all closing documents necessary to effectuate the sale of
said property to Chick-fil-A, Inc.; and
WHEREAS, the Secretary of the Corporation is directed to certify the minutes of this
meeting and the contents of these resolutions and to deliver the certification in support of the
authority of the Director named above to act on behalf of this Corporation.
NOW, THEREFORE, BE IT RESOLVED BY THE WYLIE ECONOMIC
DEVELOPMENT CORPORTION BOARD OF DIRECTORS:
SECTION 1: The recitals set forth in the preamble hereof are incorporated herein and shall
have the same force and effect as if set forth in this Section. The ratification of the Purchase and
Sale Agreement,along with all subsequent Amendments,associated with the sale of approximately
1.53 acres located at the northwest corner of State Highway 78 and Cooper Drive (more
specifically known as Lot 5R Railroad industrial Park Addition, Wylie. Texas as recorded in
Volume 2017, Page 307 of the plat records of Collin County. 'Texas), along with authority granted
to W l:DC President Marvin Fuller to execute all closing documents is hereby approved.
SECTION 2: This Resolution shall take effect immediately upon its passage.
DULY PASSED AND APPROVED by the Board of Directors of the Wylie Economic
Development Corporation on this 1911' day of June, 2017.
Marvin Fuller, President
ATTEST TO:
John Yeager, WEDC Secretary
CERTIFICATE OF CORPORATE RESOLUTION
Date: , 2017
Corporation: Wylie Economic Development Corporation, a Texas Non-Profit Corporation
Date of Meeting of Board of Directors:
We, the President and Secretary of the Corporation, certify the following facts:
1. The Corporation is a Texas Non-Profit Development Corporation, organized
and operating under the Development Corporation Act, Chapter 501 of the Texas Local
Government Code, is qualified to do business, and in good standing.
2. No proceedings for forfeiture of the certificate of incorporation or for
voluntary or involuntary dissolution of the Corporation are pending.
3. Neither the articles of incorporation nor the bylaws of the Corporation limit
the Board of Directors to adopt the resolution below.
4. The President and Secretary are the persons authorized to make and sign this
resolution.
5. The Secretary keeps the records and minutes of the proceedings of the Board
of Directors of the Corporation, and the resolution below is an accurate reproduction of the
one made in those proceedings; it has not been altered, amended, rescinded, or repealed; and
it is now in effect.
6. The resolution below was legally adopted at a legally called meeting of the
Board of Directors pursuant to the Texas Open Meetings Act.
7. The following resolutions were adopted by the Board of Directors:
"RESOLVED, the Corporation Ratifies a Purchase and Sale
Agreement, and all subsequent amendments, with Chick-fil-A, Inc. to sell
approximately 1.53 acres located at the northeast corner of State Highway 78 and
Cooper Drive (more specifically known as Lot 5R Railroad Industrial Park
Addition, Wylie, Texas as recorded in Volume 2017, Page 307 of the plat records
of Collin County, Texas); and"
"RESOLVED FURTHER, that the President, Marvin Fuller, is hereby
authorized in the name of this Corporation and as its own act to execute all
closing documents necessary to effectuate the sale of said property to Chick-fil-A,
Inc; and"
Certificate of Corporate Resolution Page 1
"RESOLVED FURTHER, that the Secretary of the Corporation is
directed to certify the minutes of this meeting and the contents of these
resolutions and to deliver the certification in support of the authority of the
Directors named above to act on behalf of this Corporation."
WYLIE ECONOMIC DEVELOPMENT
CORPORATION,
a Texas Non-Profit Corporation
Marvin Fuller, President
John Yeager, Secretary
STATE OF TEXAS §
COUNTY OF COLLIN §
This instrument was acknowledged before me on , 2017 by Marvin
Fuller, President of the Wylie Economic Development Corporation, a Texas Non-Profit
Corporation.
Notary Public in and for
The State of Texas
STATE OF TEXAS §
COUNTY OF COLLIN §
This instrument was acknowledged before me on , 2017 by John
Yeager, Secretary of the Wylie Economic Development Corporation, a Texas Non-Profit
Corporation.
Notary Public for the State of Texas
Certificate of Corporate Resolution Page 2
SELLER'S STATEMENT
DATE: June 19,2017 GF NO.: 1913502852
SALE FROM: Wylie Economic Development Corporation TO: Chick-fil-A,Inc
250 Hwy. 78 S. 5200 Buffington Road
Wylie,TX 75098 Atlanta, GA 30349
PROPERTY: Lot 5R,Railroad Industrial Park Addition,City of Wylie Collin County,Texas
S.Highway 78
Wylie,TX 75098
SALES PRICE $1,350,000.00
REIMBURSEMENTS/CREDITS
Contribution towards demolition work $74,758.00
TOTAL REIMBURSEMENTS/CREDITS $74,758.00
GROSS AMOUNT DUE TO SELLER $1,424,758.00
LESS: CHARGES AND DEDUCTIONS
REAL ESTATE COMMISSIONS $70,500.00
Commission to Hardesty Realty Group $70,500.00
TITLE INSURANCE to Lawyers Title Company $7,457.00
Owner Title Policy $7,457.00
65%of Title Premium
State of Texas Policy Guaranty Fee to Texas Title Insurance Guaranty
Association .$3.00
Escrow Fee to J.Kent Newsom,Attorney at Law $350.00
Tax Certificate to Lawyers Title Company FBO National Tax Net $50.95
E-Filing Fee to Lawyers Title Company $3.00
Recording Fees to Lawyers Title Company $58.00
TOTAL CHARGES AND DEDUCTIONS $78,421.95
NET AMOUNT DUE TO SELLER $1,346,336.05
Seller understands the Closing or Escrow Agent has assembled this information representing the transaction from the best information available from
other sources and cannot guarantee the accuracy thereof. Any real estate agent or lender in olved may be furnished a copy of this Statement.
Seller understands that tax and insurance prorations and reserves were based on figures for the preceding year or supplied by others,or estimates for
current year,and in the event of any change for current year,all necessary adjustments must be made between Purchaser and Seller direct.
The undersigned hereby authorizes Lawyers Title Company to make expenditures and disbursements as shown and approves same for payment. The
undersigned also acknowledges receipt of Loan Funds,if applicable,in the amount shown above and a receipt of a copy of this Statement.
Wylie Economic Development Corporation
Closing or Escrow Agent By:
Baron Cook Marvin Fuller, President
Lawyers Title Company
250 Hwy 78 S.
Wylie,TX 75098
*Note: Interest on existing liens is figured to the date indicated, If not paid by then,additional interest will have to be collected and your statement will be
adjusted to have sufficient funds to secure release from the lienholder.
Printed at: 06/15/2017(05:14 pm)
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
WYLIE ECONOMIC DEVELOPMENT CORPORATION,
AS SELLER,
AND
CHICK-FIL-A,INC.,
AS PURCHASER
2E127375
TABLE OF CONTENTS
Page
1. DESCRIPTION OF PROPERTY; AGREEMENT TO BUY AND SELL 1
2. EARNEST MONEY AND TITLE COMPANY 1
3. PURCHASE PRICE 1
4. CRITICAL DATES 1
5. TERMS AND CONDITIONS OF INSPECTION PERIOD; SELLER'S DELIVERY OF DUE
DILIGENCE ITEMS 2
6. TERMS AND CONDITIONS OF PERMITTING PERIOD 2
7. EASEMENTS BENEFITTING LAND; RESTRICTIONS ON ADJOINING PROPERTY 3
8. SELLER'S WORK 5
9. CLOSING AND CLOSING DATE 5
10. EXPENSES AND PRORATIONS AT THE CLOSING 5
11. TITLE; SURVEY; EXISTING USE RESTRICTIONS; COVENANTS OF SELLER 6
12. REPRESENTATIONS AND WARRANTIES OF SELLER 7
13. DEFAULTS 8
14. CONDEMNATION 9
15. BROKERS 9
16. NOTICES 10
17. GENERAL PROVISIONS 10
18. DAY FOR PERFORMANCE 11
19. SURVIVAL OF PROVISIONS 11
20. SEVERABILITY 11
21. EFFECTIVE DATE 11
22. CONDITION OF LAND 11
23. SUBDIVISION OF THE LAND 11
24. DEVELOPMENT-RELATED MAILERS AND COST SHARING 11
28127375
TABLE OF CONTENTS
(continued)
EXHIBIT"A" DEPICTION OF LAND
EXHIBIT"B" DEPICTION OF ADJOINING PROPERTY
EXIIII3IT"B-I" DEPICTION OF PROTECTED DRIVES
EXIUBIT"C" EARNEST MONEY ESCROW AGREEMENT
EXHIBIT"D" SELLER'S WORK
EXHIBIT"D-1" CONSULTANT'S CERTIFICATE
EXHHBIT"D-2" SELLER'S WORK FINAL COMPLETION CERTIFICATE
EXHIBIT"E" RESTRICTIVE COVENANTS/EXISTING EXCLUSIVES
28127375 -ii-
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered into as
of the 1 9" day ol'<11-- NT f , 2016 (the "Effective Date") by and between WYLIE
ECONOMIC DEVELOP CORPORATION, a Texas economic development corporation
("Seller"), and CHICK-FIL-A,INC., a Georgia corporation("Purchaser").
A. Seller desires to sell and Purchaser desires to acquire the property described in this
Agreement on the terms and conditions in this Agreement.
B. In consideration of the mutual covenants and agreements in this Agreement, and for other
good and valuable consideration, the receipt, adequacy and sufficiency of which are expressly
acknowledged, Seller and Purchaser agree as follows:
1. Description of Property:Agreement to Buy and Sell. Subject to the terms and conditions
in this Agreement, Purchaser agrees to buy and Seller agrees to sell the real property containing
approximately 1.53 acres, at the northeast corner of State Highway 78 and Cooper Drive in the City of
Wylie, Collin County, Texas, as depicted on Exhibit"A" (the "Land"), together with any and all
improvements, appurtenances, rights, privileges and easements benefiting, belonging or pertaining to the
Land, and all right, title and interest of Seller in and to any land lying in the bed of any road in front of or
adjoining the Land,together with any strips or gores relating to the Land(collectively,the"Property").
2. Earnest Money and Title Company. Within five (5) business days after the Effective
Date, Purchaser will deliver to Lawyer's Title (the "Title Company") the sum of Ten Thousand and
No/100 Dollars ($10,000.00) (the "Earnest Mon y"). Seller, Purchaser and Title Company have
executed the Earnest Money Escrow Agreement attached as Exhibit"C".
3. Purchase Price. The "Purchase Price" of the Property is ONE MILLION THREE
HUNDRED FIFTY THOUSAND AND NO/l00 DOLLARS ($1,350,000.00) and is subject to
adjustments and prorations as provided in this Agreement. At Closing, the Purchase Price will be paid to
Seller by wire transfer of immediately available funds to an account designated by Seller.
4. Critical Dates. Seller and Purchaser agree as follows:
(a) The period commencing on the Effective Date of this Agreement and expiring at
5:00 p.m., Central Time, on the day which is ninety (90) days after the Effective Date is the "Inspection
Period".
(b) The period expiring ninety (90) days after the Inspection Period is the
"Permitting Period".
(c) Seller's Work (defined in Exhibit "D") must be completed by June 1, 2017 (the
"Outside Completion Date").
(d) Subject to the satisfaction of Purchaser's contingencies in this Agreement, the
Closing(defined in Section 9) will he not later than the date that is thirty(30) days after the later of(i)the
expiration of the Permitting Period or(ii) completion of Seller's Work as provided in Exhibit"D", but in
no event, later than ninety (90) days after the Outside Completion Date (subject to Purchaser's remedies
for Seller's failure to timely complete Seller's Work set forth in Exhibit"D").
The dates in this Section are subject to extension only as expressly set forth in this Agreement.
28127375
5. Terms and Conditions of Inspection Period: Seller's Delivery of Due Diligence Items.
Purchaser may at all times enter the Property and Adjoining Property (as defined in Section 7) as needed
to do what is reasonably necessary to investigate and plan for the use and development of the Property.
Purchaser may make tests related to surface, subsurface, topographic and environmental conditions of the
Property. Purchaser will restore any area of the Property and Adjoining Property disturbed by Purchaser
to as near its original condition as reasonably possible. Purchaser will indemnify Seller against any
claims or damages incurred by Seller as a result of persons or firms entering the Property and Seller's
Adjoining Property on Purchaser's behalf to complete the inspection of the Property and Adjoining
Property. Purchaser's indemnity obligations under this Section 5 will survive for a period of eighteen
(18)months from the earlier of the Inspection Period or the termination of this Agreement.
Purchaser's obligations under this Agreement are conditioned on Purchaser's determination that
the Property is satisfactory for the use and development intended by Purchaser and that the development
is economically feasible. Purchaser has the right to terminate this Agreement on written notice to Seller
given at any time and for any reason within the Inspection Period. On termination, the Title Company
will pay the sum of$100.00 to Seller, the balance of the Earnest Money will be paid to Purchaser, and all
rights and obligations of the parties under this Agreement will be of no further force or effect, except for
obligations that are expressly stated to survive the termination of this Agreement. Seller acknowledges
and agrees that the sum of$100.00 is good, adequate and sufficient consideration for the rights granted to
Purchaser under this Section 5. Whether or not this Agreement is terminated pursuant to this Section 5,
Purchaser will have no liability with respect to any Hazardous Materials (as defined in Section 12(f)) or
underground storage tanks discovered as a result of any tests, inspections or studies performed by
Purchaser under this Agreement.
Seller will deliver to Purchaser, within ten (10) business days after the Effective Date, true and
complete copies of all due diligence materials related to the Property in the possession or control of Seller.
The materials will include,but are not limited to, environmental and soils reports,prior inspection reports,
prior title policies, title exceptions, surveys, and the most recent property tax bills and assessments
(collectively, "Site Information"). If Seller fails to deliver the Site Information within ten(10)business
days after the Effective Date, the Inspection Period will be extended, automatically, for each day of delay.
6. Terms and Conditions of Permitting Period. Purchaser's obligations under this
Agreement are contingent on its receipt, without extraordinary costs or conditions impacting economic
feasibility of Purchaser's proposed development, of all private approvals and easements required from
third parties and of all unappealable permits, allocation of public water and sewer capacity and other
governmental authorizations deemed necessary or appropriate by Purchaser for the development and
operation of the Property as a restaurant with a "drive-thru", pylon or monument sign and a children's
play facility (collectively, including third party approvals, the "Permits"). Purchaser agrees to make its
initial submittal for the Permits (which will be applied for and pursued in the order appropriate in the
relevant jurisdiction) no later than thirty(30) days after the expiration of the Inspection Period. Purchaser
will use commercially reasonable efforts to obtain the Permits. Seller will cooperate with Purchaser, at no
expense to Seller, in obtaining the Permits.
If Purchaser does not obtain the Permits on or before the expiration of the Permitting Period,then
Purchaser may (i) extend the Permitting Period for a period not to exceed thirty (30) days, or (ii)
terminate this Agreement, in which event all Earnest Money will be returned to Purchaser and all rights
and obligations of the parties under this Agreement will be of no further force or effect, except for
obligations that are expressly stated to survive the termination of this Agreement. In the event Purchaser
elects to extend and the Permits have not been obtained (or the condition is not waived by Purchaser in
writing)by the end of the thirty(30) day extension,Purchaser may(x) extend the Permitting Period for an
additional period not to exceed thirty (30) days, or (y) terminate this Agreement, in which event all
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Earnest Money will be returned to Purchaser and all rights and obligations of the parties under this
Agreement will be of no further force or effect, except for obligations that are expressly stated to survive
the termination of this Agreement. If Purchaser elects to extend and the Permits have not been obtained
(or the condition is not waived by Purchaser in writing) by the end of the additional thirty (30) day
extension, Purchaser may, on written notice to Seller, elect to terminate this Agreement as provided in
clause (y).
7. Easements Benefitting Land;Restrictions on Adjoining Property.
(a) Seller is also the owner of the property that adjoins the Land and is depicted on
Exhibit "B" (the "Adjoining Property"). At Closing, Seller agrees to execute and record a Declaration
of Easements, Covenants and Restrictions affecting the Land and the Adjoining Property (the
"Declaration"). Seller and Purchaser will agree on a form of Declaration within thirty(30) days after the
Effective Date. The Declaration will grant the following perpetual rights and easements over the
Adjoining Property for the benefit of the Land:
(i) General vehicular and pedestrian access, including the right (but not the
obligation) to maintain, repair and replace the access roads,parking areas and sidewalks, •
over the access roads, parking areas and sidewalks that may exist from time to time on
the Adjoining Property. Purchaser also agrees to grant to Seller, at Closing, perpetual
general vehicular and pedestrian access, including the right (but not the obligation) to
maintain, repair and replace the access roads, parking areas and sidewalks, over the
access roads,parking areas and sidewalks that may exist from time to time on the Land.
(ii) Specific vehicular and pedestrian access over the portion of the
accessways crosshatched on Exhibit `B-1" (the "Protected Drives") located on the
Adjoining Property, which Seller will not be obligated to construct until it constructs
vertical improvements on the Adjoining Property.
(iii) General utility easements, in locations mutually acceptable to both
parties, including the right to construct, tie into, maintain, repair and replace all utility
facilities that are necessary to serve the Property (including storm and surface water
drainage and detention facilities), together with the right of storm and surface water
drainage from the Land on the Adjoining Property.
(iv) A general temporary construction easement over a reasonable portion of
the Adjoining Property if required for Purchaser's development of the Property.
(b) Seller agrees to grant, at Closing, perpetual, specific vehicular and pedestrian
access over the portion of the Protected Drives located on the Land, which Purchaser will not be obligated
to construct until it constructs vertical improvements on the Land.
(c) In addition to the foregoing easements, the Declaration will grant the following
restrictive covenants for the benefit of the Land and burdening the Adjoining Property:
(i) If not maintained by the City, Seller, and its successor and assigns, will
maintain and repair, at no cost to Purchaser, all parking areas, fire lanes, driveways and
access ways, and utility facilities that are the subject of the casements granted to
Purchaser in Section 7(a) above (including, without limitation, the Protected Drives) in
accordance with shopping center standards and practices of similar developments in the
Wylie area, and Seller will not obstruct or alter the Protected Drives. Seller
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acknowledges that Purchaser is relying on Seller to maintain all of such off-site access
ways, parking areas and utility facilities that support the Property in good order and
repair at all times.
(ii) Seller will not lease, rent, sell or occupy, or permit to be leased, rented,
sold or occupied, any portion of the Adjoining Property for any of the following: a theater
of any kind; bowling alley, skating rink, amusement park, carnival or circus; meeting
hall, place of instruction, sporting event or other sports facility, auditorium or any other
like place of public assembly; a gym or fitness center; mortuary or funeral parlor;
establishment selling cars or other motor vehicles, motor vehicle maintenance or repair
shop or gas station, any establishment selling trailers; billiard parlor; tavern, pub, bar
(tavern, pub or bar being a business where its alcohol sales exceed 40% of its total sales)
or liquor store; pawn shop; or amusement center, flea market, massage parlor, "disco" or
other dance hall, tattoo or body piercing parlor; casino, gaming room, or "off track
betting" operation; for the sale of paraphernalia for use with illicit drugs or for the sale of
medicinal marijuana; or for the sale,rental or display of pornographic materials.
(iii) No restaurant will be permitted on any portion of the Adjoining Property
unless the restaurant independently maintains a parking ratio of the greater of (a) the
number of spaces required by law without a variance, or (b) ten (10) parking spaces for
every one thousand (1,000) square feet of building space for a restaurant with up to five
thousand(5,000) square feet of building space and thirteen (13) parking spaces for every
one thousand (1,000) square feet of building space for a restaurant with more than five
thousand (5,000) square feet of building space, without relying on any parking spaces
located on the Land or any other property other than where the restaurant is located.
(iv) No portion of the Adjoining Property will be leased, used or occupied as
a restaurant selling or serving chicken as a principal menu item. For the purposes of this
Agreement, "a restaurant selling or serving chicken as a principal menu item" means a
restaurant deriving twenty-five percent (25%) or more of its gross sales from the sale of
chicken. A "restaurant" includes any business establishment, including, without
limitation, a kiosk, stand, booth, food truck or area located inside another business
facility.
(v) No portion of the Adjoining Property will be leased,used or occupied by
or for any of the following uses: McDonald's, Wendy's, Arby's, Boston Market,
Kentucky Fried Chicken, Popeye's, Church's, Bojangle's, Mrs. Winner's, Carl's Jr.,
Hardee's, Chicken Out, Zaxby's, Ranch One, El Pollo Loco, Pollo Campero, Pollo
Tropical,Raising Cane's, Chester's or Bush's Chicken.
Seller agrees that the easements, covenants and restrictions will run with the title to the Land and
the Adjoining Properly. Seller further agrees that the covenants and restrictions will also be set forth in
any lease or deed that Seller enters into after the Effective Date leasing or conveying any portion of the
Adjoining Property. Purchaser will be entitled to injunctive relief and any other appropriate relief as may
be available at law or in equity for any violation. Seller acknowledges that Purchaser is relying on the
foregoing easements,restrictions and covenants in executing this Agreement.
The foregoing easements, restrictions and covenants will be set forth in a separate, commercially
reasonable agreement, in recordable form, to be executed by Seller (and its lender, if applicable) at
Closing. The separate agreement will be prepared by Purchaser at its expense and submitted to Seller
within thirty(30) days of the Effective Date for Seller's reasonable approval.
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8. Seller's Work. Purchaser's obligations under this Agreement are conditioned on
completion of the Seller's Work as provided in Exhibit"D"through Exhibit"D-2".
9. Closing and Closing Date. Subject to the conditions in this Agreement, the sale of the
Property (the "Closin ") will be held at the office of the Title Company on the last date for the closing
pursuant to this Agreement (the "Closing Date"). Seller and Purchaser agree to cooperate with one
another to deliver documents in escrow to the Title Company in order to eliminate the need for
representatives of Seller and Purchaser to attend the Closing. Seller will deliver to Purchaser full and
exclusive possession of the Property on the Closing Date, subject only to the Permitted Exceptions (as
defined in Section 11).
At least three (3) business days prior to the Closing Date, Seller will execute and deliver to the
Title Company (a) a special warranty deed(the"Deed") conveying fee simple title to the Property subject
only to the Permitted Exceptions, (b) a customary owner's affidavit in order to delete the so-called
"standard exceptions"in a TLTA title policy(other than the"survey"exception, which will be Purchaser's
responsibility) and to insure the"gap"between the effective date of the title commitment and the Closing
Date, (c) an affidavit of Seller as required by Section 1445 of the Internal Revenue Code of 1986, as
amended, (d) evidence of Seller's authority as reasonably required by the Title Company, (e) the
information required for Purchaser to file IRS Form 1099-S, and (f) any other documents required under
this Agreement or deemed reasonably necessary by Purchaser, Seller, or the Title Company.
10. Expenses and Prorations at the Closing. Taxes for the Property will be prorated as of the
date of the Closing based upon the most recently available tax bills for the Property. On receipt of the
actual tax bills, Purchaser and Seller will promptly make adjustments as appropriate. On the Closing
Date, if any special assessment affects the Property (not including any municipal or governmental
assessments or customary charges for the development of which the Land is a part,which are not due and
payable at Closing), all unpaid installments of the assessment (including those which will become due
and payable after the Closing) will be prorated as of the date of the Closing based upon the most recently
available special assessment bills for the Property. On receipt of the actual special assessment bills,
Purchaser and Seller will promptly make adjustments as appropriate. Seller will cooperate with Purchaser
to obtain a separate tax parcel identification number for the Property after the Closing if the Property is
not separately assessed. If the Property is not separately assessed, Seller will pay all taxes on the tax
parcel for the year of Closing, subject to Purchaser's payment of its share of the bill.
In addition, if after the Closing there is an adjustment or reassessment by any governmental
authority for the year of the Closing or any prior year (whether in the nature of a "roll-back" tax or
otherwise), any additional tax payment assessed on the Property for year of the Closing will be prorated
between Purchaser and Seller. Any additional tax payment for the Property for any year prior to the year
of the Closing will be paid by Seller. If it is known, as of the date of Closing, that a so-called"roll-back"
tax will be assessed after Closing,the estimated amount of the"roll-back"taxes will be escrowed with the
Title Company at Closing. The taxes will then be paid by the Title Company when actually assessed and
Seller and Purchaser agree to pay their share of any shortfall in the estimate, if applicable.
Seller will pay Seller's attorney's fees and expenses, Purchaser's title examination fees for the
title search performed on the Property by Chicago Title Insurance Company (not to exceed the sum of
$500.00), and that portion of the owner's title insurance premium for the policy insuring Purchaser equal
to the basic premium otherwise payable had Purchaser not increased the coverage in excess of the
Purchase Price (but specifically excluding any fees and charges to delete the "survey exception" or any
other endorsement premium). Purchaser will pay the recording fees with respect to the Deed, Purchaser's
attorney's fees and expenses, the portion of the title insurance premium attributable to the amount of
insurance coverage in excess of the Purchase Price and any endorsements required by Purchaser and any
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other miscellaneous Title Company charges with respect to the issuance of the owner's title insurance
policy.
Seller will pay all costs for zoning the Land for use as a restaurant with a"drive-thru".
The obligations of Seller and Purchaser in this Section 10 will survive the Closing.
11. Title; Survey; Existing Use Restrictions; Covenants of Seller. Purchaser will have until
the expiration of the Inspection Period to examine title to the Property and obtain a survey(the"Survey")
of the Land and to advise Seller in writing of any title or survey objections. Purchaser may update the
effective date of its title examination or Survey and give notice to Seller of all objections appearing
subsequent to the effective date of its previous title examination or Survey, as the case may be. The
encumbrances disclosed by Purchaser's title examination or Survey and not objected to or accepted by
Purchaser are referred to as the "Permitted Exceptions". In addition, if Purchaser subsequently waives
an objection in writing, that encumbrance will be included in the Permitted Exceptions.
The deed from Seller to Purchaser will contain the legal description prepared from Purchaser's
Survey.
Seller will have ten (10) days after receipt of Purchaser's notice to advise Purchaser in writing of
the objections Seller agrees to cure, if any. However, Seller agrees that Seller will remove all monetary
encumbrances at or prior to Closing. Notwithstanding the foregoing, "monetary encumbrances" will not
include any obligations to pay municipal or governmental assessments or common charges for the
development of which the Land is a part which are not due and payable at or prior to Closing. If Seller
fails to respond within the ten(10) day period, then Seller will be deemed to have declined to cure any of
the non-monetary objections in Purchaser's notice. If Seller declines to cure any specific non-monetary
encumbrances, then Purchaser may elect either(i)to terminate this Agreement by written notice to Seller,
in which event the Earnest Money will be immediately refunded to Purchaser and all rights and
obligations of the parties under this Agreement will be of no further force or effect, except as expressly
set forth in this Agreement, or(ii) to accept title subject to the specific non-monetary encumbrances.
If Seller agrees in writing to cure a title or survey objection(or is obligated to) and fails to do so,
Seller acknowledges that Purchaser will have relied on Seller's agreement to do so and the failure will be
a default by Seller. In that event, (a) Purchaser may declare Seller in default and pursue the remedies in
Section 13 of this Agreement, (b)Purchaser may attempt to cure the objection on Seller's behalf, in which
event the Purchase Price will be reduced by the amount equal to the actual cost and expense incurred by
Purchaser in curing the defect or objection, (c) Purchaser may accept title to the Property subject to the
objection, or (d) any combination of clauses (b) and (c). If Purchaser elects to attempt to cure any
objection pursuant to clause (b), Purchaser may extend the Closing for a period not to exceed sixty (60)
days. If Purchaser is not successful in curing the objection,then Purchaser may exercise its options under
either clauses (a) or(c).
If required by the Title Company, at Closing, Seller agrees to execute an indemnity agreement in
a form reasonably satisfactory to the Title Company that will be sufficient to allow the Title Company to
delete any exception for mechanic's liens and materialmen's liens arising by,through or under Seller.
Seller covenants and agrees that Seller will not (i) change or alter the physical condition of the
Property or Protected Drives, (ii) grant, create, consent to, or modify any encumbrance benefitting or
burdening the Property, (iii) unless expressly provided in this Agreement, pursue or consent to any
rezoning of the Land, or(iv) market the Property for sale to any other party.
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12. Representations and Warranties of Seller. Seller warrants and represents to Purchaser as
follows:
(a) Seller owns fee simple title to the Property free and clear of all liens, special
assessments (not including any municipal or governmental assessments or common charges for the
development of which the Land is a part which are not due and payable at or prior to Closing), easements,
encroachments, reservations, restrictions and encumbrances, except for those appearing in the Title
Commitment, excepting only monetary encumbrances to be removed by Seller at or prior to Closing, real
property ad valorem taxes not yet due and payable and recorded general utility easements serving the
Property.
(b) There are no actions, suits or proceedings of any kind pending or threatened
against Seller, the Property, the Adjoining Property or relating to any adjoining rights-of-way in any court
or before or by any federal, state, county or municipal department, commission, board, bureau or agency
or other governmental instrumentality. This includes, without limitation, any condemnation or eminent
domain proceedings, widening, construction of acceleration/deceleration lanes, changes in or additions to
existing or approved curb cuts or medians, proposed or pending installation or removal of traffic lights or
any other changes or proposed changes in traffic patterns or management of traffic flow.
(c) All actions required to authorize the execution and performance of this
Agreement by Seller have been taken, and this Agreement constitutes a valid and binding agreement,
enforceable against Seller. No person or entity has any right or option to lease, occupy or acquire the
Property.
(d) Seller has not received any notice that the Property is or will be subject to any
reassessment due to a change in use of the Property or subject to any special assessments, whether or not
presently a lien. The Property has not been classified under any designation authorized by law to obtain a
special low ad valorem tax rate or to receive a reduction, abatement or deferment of ad valorem taxes
which, in such case, will result in additional, catch-up or roll-back ad valorem taxes in the future in order
to recover the amounts previously reduced, abated or deferred.
(e) To the best of Seller's knowledge, there is no existing violation of any ordinance,
code,law,rule,requirement or regulation applicable to the Property.
(f) Seller has not used, operated or permitted the use of the Property or the
Adjoining Property in any manner for the storage, use, treatment, manufacture or disposal of any
Hazardous Materials (as defined below). To Seller's current actual knowledge, neither the Property nor
the Adjoining Property have ever been used or operated by any other party for the storage,use, treatment,
•
manufacture or disposal of any Hazardous Materials. The term"Hazardous Materials"means and refers
to any "hazardous waste" or "hazardous substance," as such terms arc set forth in, under or pursuant to
the Environmental Laws and Regulations, oil or petroleum products or their derivatives, polychlorinated
biphenyls, asbestos, radioactive materials or waste, and any other toxic, ignitable, reactive, corrosive,
explosive, contaminating or polluting materials which are now or in the future subject to governmental
regulation. "Environmental Laws and Regulations" means any federal, state or local laws now or
hereafter in effect relating to pollution or protection of the environment or emissions, discharges, spills,
releases or threatened releases of any Hazardous Substance into the environment (including without
limitation indoor air, ambient air, surface water, ground water or land), including without limitation, the
Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., as amended, the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq., as
amended, the Hazardous Materials Transportation Act, 49 U.S.C. §§ 1801 et seq., as amended, the Clean
Water Act, 33 U.S.C. §§ 1251 et seq., as amended, the Clean Air Act, 42 U.S.C. §§ 7401 et seq., as
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amended, the Toxic Substance Control Act, 15 U.S.C. §§ 2601 et seq., as amended, and any rules and
regulations now or hereafter promulgated under any of such acts.
(g) Seller has provided Purchaser with complete copies of all environmental site
assessments, audits and similar reports covering the Property and Adjoining Property in Seller's
possession or control.
(h) The Land is currently subject to a zoning classification that will permit the
development and use of a restaurant building including a drive-thru window and a children's play facility.
(i) All utilities are available within the right-of-way adjoining the frontage of the
Land or are available to be extended to the boundary of the Land through existing easements or easements
that will be granted at Closing.
(j) The Property is not located within an area designated a redevelopment area or
project area by a redevelopment agency. Seller is not presently in and does not intend to enter into a
disposition and development agreement or owner participation agreement with a redevelopment agency
for development of the Property.
(k) Except as set forth on Exhibit "E", there are no private restrictive covenants
(such as a "no build" or"no change" area restriction) or so-called"exclusive?' (recorded or unrecorded)
that will prevent Purchaser from constructing and operating a Chick-fil-A restaurant on the Property as
such restaurants arc currently being operated (which restaurants include, in addition to chicken as a
principal menu item, a broad variety of other menu items such as signature coffees, blended beverages,
baked goods, salads, breakfast burritos and wraps). Exhibit "E" sets forth, verbatim, the only private
restrictive covenants or so-called"exclusives"that burden the Property.
(1) No consents or other approvals are required to be obtained from any private third
party (including, but not limited to, other tenants of the Adjoining Property) to permit Purchaser's
proposed construction and operation of a Chick-fil-A restaurant on the Property or for the granting of
restrictive covenants, exclusives and easements burdening the Adjoining Property as set forth in this
Agreement(including,but not limited to,the restrictions imposed by the Protected Drives).
(m) The terms and conditions of this Agreement do not violate the terms and
conditions of any existing lease for property or space located on the Adjoining Property.
Seller will take, or cause to be taken, all action necessary to cause its warranties and
representations to remain true and correct, in all material respects, through the date of the Closing.
Purchaser's obligations to acquire the Property are conditioned upon the representations remaining true
and correct, in all material respects, as of the date of the Closing. If any of the representations and
warranties become untrue or misleading in any material respect prior to the Closing, Seller will give
prompt written notice to Purchaser. In that event (i) if the change is due to the fault of Seller, the event
will constitute a default by Seller and Purchaser will have the remedies in Section 13, and (ii) if the
change is not due to the fault of Seller, Purchaser may either waive such condition, in writing, or
terminate this Agreement and receive a refund of the Earnest Money, in which event neither Seller nor
Purchaser will have any further obligations under this Agreement. All of the representations and
warranties will be reaffirmed by Seller as true and correct as of the date of the Closing and will survive
the Closing.
13. Defaults. If Seller fails to comply with or perform any of its covenants, agreements and
obligations under this Agreement, or if Seller's warranties and representations set forth in this Agreement
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are untrue in any material respect due to Seller's fault, then, at Purchaser's option: (i)Purchaser will be
entitled to an immediate refund of all Earnest Money and to pursue any and all rights and remedies
available to Purchaser at law or in equity including, without limitation, specific performance; or (ii)
Purchaser will be entitled, on giving written notice to Seller, to terminate this Agreement and to receive
reimbursement from Seller for Purchaser's actual out-of-pocket due diligence costs pertaining to this
transaction (including attorneys' fees) up to $100,000. Upon any termination pursuant to option (ii), all
Earnest Money will be immediately returned to Purchaser and Seller will pay Purchaser's expenses within
ten(10) days of receipt of a written accounting of the expenses.
In addition to the remedies set forth in this Agreement, if Seller's default is the failure to complete
Seller's Work by the Estimated Completion Date or Outside Completion Date, Purchaser will have the
remedies in Exhibit"D".
If Purchaser fails to purchase the Property in accordance with the terms of this Agreement, then
Seller's sole and exclusive remedy for the default will be to terminate this Agreement and to receive and
retain the Earnest Money as full liquidated damages for Purchaser's default. Seller and Purchaser
acknowledge that it is impossible to more precisely estimate the damages to be suffered by Seller and that
retention of the Earnest Money is not intended to be a penalty. Upon the termination, except as expressly
provided in this Agreement to the contrary, all rights and obligations created under this Agreement will
terminate and be of no further force or effect. The provisions of this Section 13 will not limit Purchaser's
obligations under any indemnity set forth in this Agreement.
If either Seller or Purchaser enforces the obligations of the other under this Agreement by
instituting legal proceedings, then the non-prevailing party in any such proceedings will pay all out-of-
pocket expenses actually incurred by the prevailing party, including court costs and reasonable attorneys'
fees.
14. Condemnation. If all or any material portion of the Property, any material portion of the
Protected Drives, or any material portion of any land on which off-site access, parking, utility service or
stormwater detention is located (and which is required for the use and development of the Property) is
taken or condemned by any entity with the power of eminent domain prior to the date of the Closing, or
if Purchaser receives notice of a proposed taking prior to the date of the Closing,then Purchaser will have
the option of either (i) terminating this Agreement by giving written notice to Seller, in which event all
Earnest Money will be immediately refunded to Purchaser and this Agreement and all rights and
obligations created under this Agreement will be of no further force or effect, except as expressly
provided to the contrary, or (ii) requiring Seller to convey the remaining portion of the Property to
Purchaser pursuant to the terms and provisions of this Agreement and to transfer and assign to Purchaser
at the Closing all of Seller's right, title and interest in and to any award made or to be made for the
Property. Seller and Purchaser agree that Purchaser will have the right to participate in all negotiations
relating to the Property or to the compensation to be paid for any portion or portions of the Property to be
condemned.
15. Brokers. Purchaser and Seller acknowledge that David Hardesty of Hardesty Realty
Group ("Purchaser's Broker") has acted as the only broker in connection with the sale of the Property.
At the Closing, and only in the event of the Closing and funding of the transaction, Seller will pay
Purchaser's Broker a real estate sales commission pursuant to a separate written agreement among Seller,
Purchaser and Purchaser's Broker("Broker Agreement"). If this transaction is not consummated for any
reason, then no commission is earned and none is payable. Seller will indemnify Purchaser against any
claim for any real estate sales commission, finder's fees, or like compensation in connection with this
transaction and arising out of any act or agreement of Seller, including any claims asserted by Purchaser's
Broker. Likewise,Purchaser will indemnify Seller against any claim for any real estate sales commission,
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finder's fees or like compensation in connection with this transaction and arising out of any act or
agreement of Purchaser, other than any claims asserted by Purchaser's Broker. Seller's indemnity and
Purchaser's indemnity will survive the Closing or any termination of this Agreement.
16. Notices. Notices given pursuant to this Agreement will be effective only if in writing and
delivered (i) in person, (ii) by courier, (iii)by reputable overnight courier guaranteeing next business day
delivery, (iv) if sent on a business day during the business hours of 9:00 a.m. until 7:00 p.m., eastern time,
via facsimile, with a copy to follow by reputable overnight courier guaranteeing next business day
delivery, or(v)by United States certified mail,return receipt requested. All notices will be directed to the
other party at its address provided below or such other address as either party may designate by notice
given in accordance with this Section 16. Notices will be effective (i) in the case of personal delivery or
courier delivery, on the date of delivery, (ii) if by overnight courier, one (1) business day after deposit
with all delivery charges prepaid, (iii) if by facsimile, on the date of transmission, provided that a
confirmation sheet is received and a second copy is sent as required above, and(iv) in the case of certified
mail, the earlier of the date receipt is acknowledged on the return receipt for such notice or five (5)
business days after the date of posting by the United States Post Office. The notice addresses for Seller
and Purchaser are as follows:
If to Seller: Wylie Economic Development Corporation
250 State Highway 78
Wylie,Texas 75098
PHONE: (972)442-7901
ATTN: Sam Satterwhite
With a copy to Seller's Abernathy,Roeder,Boyd&Hullett
counsel: 1700 Redbud Boulevard, Suite 300
McKinney,Texas 75069
PHONE: (214) 544-4007
ATTN: Randy Hullett
If to Purchaser: Chick-fil-A, Inc.
5200 Buffington Road
Atlanta, Georgia 30349
PHONE: (404)765-8000
FAX: (404) 305-4780
ATTN: Legal Department—Real Estate
With a copy to Purchaser's Troutman Sanders LLP
counsel: 600 Peachtree Street,N.E., Suite 5200
Atlanta, Georgia 30308
PHONE: (404) 885-2617
FAX: (404) 962-6992
ATTN: Michael H.Wall
17. General Provisions. No failure of either party to exercise any right given in this
Agreement or to insist upon strict compliance with any obligation in this Agreement, and no custom or
practice at variance with the terms of this Agreement, will constitute a waiver of either party's right to
demand exact compliance with this Agreement. This Agreement contains the entire agreement of the
parties to this Agreement, and no representations, inducements, promises or agreements, oral or
otherwise, between the parties not embodied in this Agreement will be of any force or effect. Any
amendment to this Agreement will be binding on Seller and Purchaser only if the amendment is in writing
10
28127375
and executed by both Seller and Purchaser. The provisions of this Agreement will be for the benefit of
and be binding upon Seller and Purchaser and their respective heirs, administrators, executors, personal
representatives, successors and assigns. At the election of Purchaser, this transaction will be closed in the
name of and the deed delivered to its nominee or assigns. Time is of the essence of this Agreement. This
Agreement and all amendments will be governed by and construed under the laws of the state in which
the Land is located. This Agreement may be executed in multiple counterparts, each of which will
constitute an original, but all of which taken together will constitute one and the same agreement. All
personal pronouns used in this Agreement,whether used in the masculine, feminine or neuter gender, will
include all genders, the singular will include the plural and vice versa. The headings inserted at the
beginning of each section are for convenience only, and do not add to or subtract from the meaning of the
contents of each section. All exhibits attached to this Agreement are incorporated by reference into this
Agreement.
18. Day for Performance. Wherever there is a day or time period established for performance
and the day or the expiration of such time period is a Saturday, Sunday or holiday, then the time for
performance will be automatically extended to the next business day.
19. Survival of Provisions. This Agreement will survive the Closing.
20. Severability. This Agreement is intended to be performed in accordance with, and only
to the extent permitted by, all applicable laws, ordinances, rules and regulations. If any provision of this
Agreement is for any reason and to any extent determined to be invalid or unenforceable, then the
remainder of this Agreement and the application of the provision to other persons or circumstances will
not be affected but rather will be enforced to the greatest extent permitted by law.
21. Effective Date. The"Effective Date"to be inserted on the first page of this Agreement is
the date upon which this Agreement has been fully executed by Seller and Purchaser and each of Seller
and Purchaser has received a fully executed original counterpart. The last party executing this Agreement
will deliver a fully executed original counterpart to the other party by overnight delivery for receipt on the
next succeeding business day and will insert the next succeeding business day on the first page of all
original counterparts of this Agreement.
22. Condition of Land. Seller acknowledges that Purchaser is willing to pay the Purchase
Price for the Land on the condition that(a)the Land has been rough graded, and(b)water, sanitary sewer,
natural gas, storm drainage, power, telephone, and cable utility connections exist to a point within the
boundary lines of the Land or within a contiguous public right-of-way not more than five feet(5) from a
boundary line of the Land and such utilities are of proper size and capacity to support the operation of
Purchaser's proposed Chick-fil-A restaurant and allow Purchaser to meet all code and permit requirements
by all authorities having jurisdiction. Seller acknowledges that Purchaser may not discover (i) that the
utility systems and connections are not as described above, or (ii) that the utility connections or systems
are not properly functioning until the Closing and after commencement of construction.
23. Subdivision of the Land. Seller will be responsible, at its cost, for subdividing the Land
into a separate, legal parcel of land by replatting the Land on or before the Closing Date. Purchaser will
have the right to review and comment on the draft subdivision plat (the "Plat") proposed by Seller before
the submission of the Plat to the applicable governmental authorities. Seller will obtain all necessary
approvals for the subdivision on or prior to the expiration of the Permitting Period. On or before the
Closing Date, Seller and Purchaser will amend this Agreement to replace Exhibit "A" and Exhibit "B"
with the legal descriptions of the Land and the Adjoining Property, respectively,based on the Plat.
11
28127375
24. Development-Related Matters and Cost Sharing. Purchaser and Seller acknowledge that,
in connection with Purchaser's redevelopment of the Property, Purchaser expects to be assessed
approximately $91,077.00 in development fees (the "Development Fees") by the City of Wylie (the
"City"), which include roadway and utility impact fees; including water, sewer and inspection fees.
Purchaser will be responsible for remitting payment of the Development Fees to the City.
Additionally, Purchaser and Seller acknowledge that in connection with the re-development of
the Property and surrounding land (some of which is owned by Seller), the parties have agreed to expand
the deceleration lane to to assist with the anticipated increase in traffic to the Property. Consequently, as
part of Seller's Work, Seller has agreed to perform the Deceleration Lane Work (as defined in Exhibit
"D"). Since the Deceleration Lane Work will benefit Purchaser, Purchaser has agreed to pay Seller at
Closing for the cost of the Deceleration Lane Work, which Seller estimates to be $41,000.00 (the "Lane
Contribution").
If Seller performs the Deceleration Lane Work,then,upon Seller's completion of the Deceleration
Lane Work, Seller will deliver to Purchaser (i) reasonable evidence that the Deceleration Lane Work was
completed in accordance with this Section 24, (ii)reasonable evidence of Seller's total out-of-pocket costs
• for the Deceleration Lane Work (the "Total Cost"), (iii) lien waivers (the effectiveness of which is not
conditioned on payment of any future amounts) in the form required under Texas law from all
contractors, subcontractors, vendors and suppliers who provided services or materials in connection with
the Deceleration Lane Work and(iv)written notice requesting payment of the Lane Contribution to Seller
in an amount equal to the Total Cost.
In exchange for the Lane Contribution, Seller will reasonably cooperate with and assist Purchaser
to attempt to cause the City to apply all or a portion of the Lane Contribution as a credit against the
Development Fees (the "Credit"). Regardless of the outcome of Seller's and Purchaser's attempt, Seller
acknowledges and agrees that it will reimburse Purchaser for that portion of the Lane Contribution not
covered by the Credit.
At Closing, Purchaser will pay Seller an amount equal to $74,78.00, as a contribution toward
Seller's costs of performing the demolition work(as further described in Exhibit"D").
12
28127375
Sept-
Purchaser has executed this Agreement under seal as of ) 121 ZO)(e
"PURCHASER"
CHICK-FIL-A,INC., a Georgia corporation
By: /.4A,, (/
Name: Kelly .Ludwlck
Vice I'resiaecii.Labor 41ed El till yrner:t
Title:
(CORPORATE SEAL)
Federal Tax Identification Number of Purchaser:
58-0941582
13
28127375
IN ACCEPTANCE OF THIS AGREEMENT, Seller has executed this Agreement under seal as of
"SELLER"
WYLIE ECONOMIC DEVELOPMENT
CORPORATION, a Texas economic development
corporation
By: - C12-A'k—
Name: a.rn �5Q r't.A9C-14'�
Title: �cr c i t[p D i teG-4-p/'
By:
Name:
Title:
(CORPORATE SEAL)
Federal Tax Identification Number of Seller:
14
2812737.5
EXIT"A"
DEPICTION OF LAND
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LOCATION: TX
DATE: 05--27 15 SH78 & COOPER DR. ATKINs
SCALE: N.T.S.
\NYI_ IE, TX.
1600 Riveredge Parkway NW, Suite 600
SKETCH " C" 38
C7701 933-0280 fax30770) 933--0971
28127375
EXHIBIT"B"
DEPICTION OF ADJOINING PROPERTY
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IWYLIE ECONO.C.O.V+%IPACPE CORPORATION
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28127375 2
EXHIBIT"C"
EARNEST MONEY ESCROW AGREEMENT
THIS EARNEST MONEY ESCROW AGREEMENT (this"Agreement")is made and entered
into this day of , 2016, by and among CHICK-FM-A, INC., a Georgia
corporation, ("Purchaser") and WYLIE ECONOMIC DEVELOPMENT CORPORATION, a Texas
economic development corporation ("Seller"), and LAWYERS TITLE COMPANY ("Title
Company").
•
A. Seller and Purchaser entered into that certain Purchase and Sale Agreement(the"Contract")
executed as of , 2016 for certain property located in the City of Wylie,
Collin County,Texas described in Exhibit"A"to the Contract(the"Property").
B. Purchaser and Seller desire that Title Company hold the Earnest Money in escrow as defined
in and required under the Contract and this Agreement, subject to the Conditions of Escrow,
attached to this Agreement.
C. In consideration of the promises and undertakings in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which is acknowledged, the parties
covenant and agree as follows:
1. Purchaser and Seller hereby appoint Lawyers Title Company as escrow agent.
2. Purchaser will deliver and deposit with Title Company the amount of Ten Thousand
and No/100 Dollars ($10,000.00) representing the Earnest Money as required by the Contract. Title
Company will confirm, by written notice to Seller and Purchaser, receipt of the Earnest Money. Title
Company agrees to deposit the funds in a money market, interest-bearing account and to hold and
disburse the funds as provided in this Agreement.Any additional earnest money required by the Contract
will likewise be deposited if and when due with Title Company and will be a part of the"Earnest Money"
in this Agreement. Purchaser's Federal Taxpayer Identification Number is: 58-0941582. All interest
will accrue to and be reported to the Internal Revenue Service for the account of Purchaser.
3. Upon written notification from Purchaser and Seller that the sale is consummated, Title
Company will deliver the Earnest Money to Seller to be applied to the purchase price.
4. Upon written notification from Purchaser and Seller that the sale will not take place,Title
Company will deliver the Earnest Money in accordance with the release disbursement instructions also
included in this Agreement. Notwithstanding the foregoing, in the event Purchaser terminates the
Contract during the Inspection Period (as defined in the Contract) in accordance with the terms of the
Contract, Purchaser will provide a copy of the termination to Title Company, and Title Company will
immediately deliver the Earnest Money to Purchaser without requiring approval or authorization from
Seller.
5. The parties covenant and agree that in performing any of its duties under this Agreement,
Title Company will not be liable for any loss, costs or damage which it may incur in the capacity of Title
Company, except for any loss, costs or damage arising out of its own default or gross negligence or
willful misconduct. Accordingly,Title Company will not incur any liability with respect to (i) any action
taken or omitted to be taken in good faith upon advice of counsel for the parties given with respect to any
questions relating to duties and responsibilities, or (ii) any action taken or omitted to be taken in reliance
28127375
upon any documents, including but not limited to, any written notice of instruction provided for in this
Agreement or in the Contract, not only as to its execution and the validity and effectiveness of its
provisions, but also to the truth and accuracy of any information contained in the same, which Title
Company in good faith believes to be genuine, to be signed or presented by a proper person or persons
and to conform with the provisions of this Agreement.
6. The parties covenant and agree that, in an event of a dispute under this Agreement, the
Title Company may, in the Title Company's discretion, tender into the registry or custody of any court of
competent jurisdiction sitting in the state where the Property is located, all money held under the terms of
this Agreement, together with such legal pleading as is appropriate and will be discharged of its duties
under this Agreement. Title Company will be reimbursed for any and all costs and expenses, including
reasonable attorney's fees in connection with any such action.
7. Notices will be given in accordance with Section 16 of the Contract. The address for
Title Company is:
Lawyers Title Company
Attn: D.Barron Cook
250 South Highway 78
Wylie,Texas 75098
Phone:
Facsimile:
[SIGNATURES APPEAR ON THE FOLLOWING PAGES]
28127375 2
•
The undersigned have caused this Agreement to be duly executed under seal as of day and year
•
first above written.
PURCHASER:
CHICK FIL-A, INC., a Georgia corporation
By:
Name:
Title:
(CORPORATE SEAL)
(See following page for Title Company's signature)
3
7.8127375
TITLE COMPANY:
LAWYERS 1'1'i'LE COMPANY
By:
Name:
Title:
(CORPORATE SEAL)
(See following page for Seller's signature)
28127375 4
SELLER:
WYLIE ECONOMIC DEVELOPMENT
CORPORATION, a Texas economic development
corporation
B y:
Name:
Title:
(CORPORATE SEAL)
28127375 5
CONDITIONS OF ESCROW
Title Company accepts this undertaking subject to these Conditions of Escrow:
1. The Earnest Money may be processed for collection in the normal course of business by Title
Company, who may commingle funds received by it with escrow funds of others in its regular
escrow account at Inwood National Bank (the "Depository"). Title Company will not be
•accountable for any incidental benefit which may be attributable to the funds so deposited.
2. Title Company will not be liable for any loss caused by the failure, suspension, bankruptcy or
dissolution of the Depository;
3. Title Company will not be liable for loss or damage resulting from:
a. any good faith act or forbearance of Title Company;
b. any default, error, action or omission of any party, other than the Title Company;
c. any defect in the title to any property unless such loss is covered under a policy of title
insurance issued by the Title Company;
d. the expiration of any time limit or other delay which is not solely caused by the failure of
Title Company to proceed in its ordinary course of business, and in no event where such
time limit is not disclosed in writing to the Title Company;
e. the lack of authenticity of any writing delivered to Title Company or of any signature, or
the lack of authority of the signatory to sign the writing;
f. Title Company's compliance with all attachments, writs, orders,judgments, or other legal
process issued out of any court;
g. Title Company's assertion or failure to assert any cause of action or defense in any
judicial or administrative proceeding; and
h. Any loss or damage which arises after the Earnest Money has been disbursed in
accordance with the terms of this Agreement.
4. Title Company will be fully indemnified by the parties for all its expenses, costs and reasonable
attomey's fees incurred in connection with any interpleader action which Title Company may file,
in its sole discretion, to resolve any dispute as to the Earnest Money; or which may be filed
against the Title Company. Such costs, expenses or attorney's fees, as well as the fees of Title
Company described below,may be deducted from the Earnest Money.
5. If Title Company is made a party to any judicial,non judicial or administrative action,hearing or
process based on acts of any of the other parties and not on the malfeasance and/or negligence of
Title Company in performing its duties,the expenses, costs and reasonable attorney fees incurred
by Title Company in responding to such action, hearing or process may be deducted from the
funds held and the party/parties whose alleged acts are a basis for such proceedings will
indemnify and hold Title Company harmless from said expenses, costs and fees incurred.
6. Title Company's fee for acting escrow agent is shown on its Escrow Services and Charges which
is available upon request. These fees, which may be paid in advance or will be deducted from the
account upon disbursement, are the joint and several obligation of each party to any agreement,
sales contract or other writing forming the basis for this escrow undertaking.
7. All controversies, issues, interpretation and other matters relating in any way to these Conditions
of Escrow will be interpreted and governed by the laws of the State of Texas.
28127375
8. In the event of any conflict between the terms any provisions of these Conditions of Escrow and
the terms and provisions of the Agreement or other document to which this is attached, the terms
and provisions of these Conditions of Escrow will prevail.
9. Title Company will be fully indemnified by the other parties and such parties will hold Title
Company harmless from all damages, costs, claims and expenses arising from Title Company's
performance of its duties under this Agreement, including reasonable attorney's fees, except for
those damages, costs, claims and expenses resulting from the gross negligence or willful
misconduct of Title Company.
28127375 2
EXIT "D"
SELLER'S WORK
Seller agrees, at its expense, to complete the "Seller's Work" in accordance with this Exhibit. If any
word in this Exhibit is capitalized but is not defined, the term has the meaning given in the Agreement.
All notices between Seller and Purchaser required in this Exhibit will be given and received in accordance
with the provision titled"Notices"in the Agreement.
Section 1. Scope of Seller's Work. Seller will perform the following work required for
Purchaser to proceed with the construction of its restaurant building (the `Building") and all related
improvements (the"Purchaser's Work").
The work to be performed by Seller is referred to as the "Seller's Work", will be shown on the
"Approved Plans" as defined in Section 2, and will consist of the following:
(a) Construction and installation of all driveways, access ways and curb cuts from
State Highway 78, including, without limitation, oversizing of the deceleration lane adjacent to
State Highway 78 (the "Deceleration Lane Work").
(b) (i) Demolition of the existing improvements on the Land, including, without
limitation, removal of all asphalt, concrete slabs, foundations, footings, utility lines, septic tanks,
basements and any other and subterranean structures, (ii)performing all necessary or appropriate
asbestos remediation and (iii) rough grade the Land if necessary as a result of the demolition and
removal work above (collectively,the "Demolition Work").
Seller acknowledges and agrees that, as of the Effective Date, the Demolition Work has already
been substantially completed.
Section 2. Seller's Plans. Seller agrees to submit plans and specifications for Seller's Work to
Purchaser for Purchaser's reasonable review and approval within thirty(30) days after the Effective Date
of this Agreement. Seller's plans will include,by way of example only and not by way of limitation, the
following types of drawings:
(a) Grading Plan;
(b) Paving Plan; and
(c) Erosion and Sediment Control Plan.
Once Purchaser approves in writing the plans and specifications (the "Approved Plans"), Seller will not
modify the Approved Plans (except as provided below) without Purchaser's prior,written consent, which
will not be unreasonably withheld.
Section 3. Standard of Work. All of Seller's Work will comply with(i) the Approved Plans, (ii)
all applicable laws, codes, ordinances,rules and regulations and(iii) all applicable easements,restrictions,
covenants, and agreements of record.
Section 4. Estimated Completion Date; Evidence of Completion; Purchaser's Remedies. Seller
and Purchaser agree as follows:
(a) Seller estimates that Seller's Work will be complete on or before April 1, 2017
(the"Estimated Completion Date"), subject to events of force majeure. Seller will use its commercially
28127375
reasonable efforts to meet the Estimated Completion Date. Seller's Work must be completed by the
Outside Completion Date established in Section 4(c) of this Agreement,which is June 1, 2017.
(b) Seller will have the right to extend the Estimated Completion Date (but not later
than the Outside Completion Date) provided that Seller gives Purchaser not less than sixty (60) days {�{;
prior, written notice of the new Estimated Completion Date.
(c) Seller acknowledges that Purchaser will, subject to receipt of its Permits,
establish a construction schedule based upon the Estimated Completion Date given by Seller.
Notwithstanding anything in this Agreement to the contrary, Purchaser will not be required to close
earlier than fifteen(15) business days after the date Seller actually completes Seller's Work and delivers
the certificates attached to this Agreement as Exhibit"D-2" and Exhibit"D-3". Note: Other terms of this
Agreement may establish a Closing Date that is later than the Outside Completion Date established in
Section 4(c), and in that regard those provisions of this Agreement will control.
. (d) If Purchaser has obtained its Permits and Seller misses the Estimated Completion
Date given by Seller,Purchaser will receive a credit against the Purchase Price equal to $1,500.00 per day
for each day of delay.
(e) If Seller does not complete Seller's Work by the Outside Completion Date,
Purchaser may, at its option, extend the Outside Completion Date for up to sixty (60) days (without
waiver of its rights in Section 13) and receive the daily credit in (d), above, or pursue its remedies in
Section 13. If Seller completes the Seller's Work within the extension period, Closing will occur on a
date specified by Purchaser within thirty(30) days after Seller delivers the certificates in(g),below.
(f) In addition, if Seller does not complete Seller's Work by the Outside Completion
Date, as may be extended by Purchaser,Purchaser may elect to complete Seller's Work on Seller's behalf
and proceed to Closing. In that event, an amount equal to 125% of the estimated costs to complete the
Seller's Work, as determined Purchaser's contractor and subject to Seller's reasonable approval, will be
escrowed at Closing. The escrow agreement will allow Purchaser to receive a reimbursement of all costs
plus an administrative fee of 20%. The escrow agreement will be in a commercially reasonable form
acceptable to Purchaser and Seller.
(g) Within five (5) business days after completing Seller's Work, Seller will deliver
the certificates attached to this Agreement as Exhibit"D-2" and Exhibit"D-3". Purchaser has the right to
inspect Seller's Work. Purchaser's inspection or acceptance of Seller's Work will not constitute a waiver
of any claim against Seller for defects in Seller's Work.
(h) Seller hereby warrants all of Seller's Work for a period of one (1) year after the
Closing. The warranty period will not limit Seller's responsibility for latent defects which are not
discovered within such one(1)year period.
(i) Purchaser's acceptance of the title to the Property will not constitute a waiver of
any of the requirements in this Exhibit. If Purchaser discovers that any of Seller's Work was not
performed in accordance with the terms of this Exhibit, Purchaser will give written notice to Seller, and
Seller must correct the defect. Seller acknowledges that, notwithstAnding Seller's delivery of the
certificates required in this Exhibit, Purchaser may not actually discover that the Seller's Work is not
correct (for example,that the grading and fill work was not done properly) until Purchaser commences its
construction.
28127375 2
(j) If Seller does not promptly commence within ten(10)business days after receipt
of notice from Purchaser the work required to correct a defect in Seller's Work and diligently complete it
within five (5) business days after commencement of the work, Purchaser will, in addition to all other
rights and remedies, have the right to perform the work on Seller's behalf. In that event, Seller will be
obligated to reimburse Purchaser for all costs incurred in performing the work plus an administrative fee
of twenty percent(20%).
28127375 3
EXHIBIT"D-1"
CONSULTANT'S CERTIFICATE
Project
Date
Geotech.Engineer
Surveyor
Grading Contractor
Const.Mgr.
Each party signing this certificate on behalf of the consultant listed above has been duly authorized to
execute and deliver this certificate on behalf of the company providing the services.
GEOTECHNICAL ENGINEER CERTIFICATION
I certify that the fill placement and surface and contour grading of the property being teased or purchased
by Chick-fil-A, Inc. has been performed and completed substantially in accordance with the
recommendations of the Geotechnical Investigation prepared by dated
. The work was performed under the supervision of the Geotechnical Engineer signing
this certification. A final report containing a description of the grading work, on-site recommendations,
and the results of testing and inspections has been prepared by and dated
Geotechnical Engineer(signature) Date
Print Name:
Registration No. AFFIX SEAL HERE
Expiration Date:
28127375
SURVEYOR CERTIFICATION
I certify that the surface and contour grading of the property being leased or purchased by Chick-fil-A,
Inc. is complete and is substantially in accordance with the drawings and specifications by
dated . I further certify that the boundaries of
such property have been established by pins which as of the date of this Certification are located as
described on the survey.
Finished Floor Elevation Date .
Surveyor(signature)
Print Name:
Registration No. AFFIX SEAL HERE
Expiration Date:
GRADING CONTRACTOR CERTIFICATION
I certify that the fill placement and surface and contour grading of the property being leased or purchased
by Chick-fil-A, Inc. is complete and, to the best of the undersigned's knowledge, has been performed
substantially in accordance with the drawings and specifications by dated
Contractor(signature) Date
•
Print Name:
28127375 5
EXEIBIT "D-2"
SELLER'S WORK FINAL COMPLETION CERTIFICATE
This certification is given in accordance with the requirements of the Purchase and Sale
Agreement (the "Agreement") between ("Seller") and Chick-
fil-A,Inc. I certify that I have personal knowledge of the subject matter of this certification. I certify that
all of the Seller's Work, as that term is defined in the Agreement, has been completed in accordance with
the Approved Plans (as defined in the Agreement) and all other requirements of the Agreement. The
Seller's Work has been inspected by a qualified representative of Seller and has been inspected and ;.
approved by all required governmental agencies.
a
by its duly authorized representative:
• f
Print name:
Date signed; ,20_
•
28127375
EXHIBIT"E"
RESTRICTIVE COVENANTS/EXISTING EXCLUSIVES
None.
28127375
EARNEST MONEY ESCROW AGREEMENT
THIS EARNEST MONEY ESCROW AGREEMENT(this"Agreement")is made and entered
into this 20th day of September, 2016, by and among CHICK-FIIrA, INC., a Georgia corporation,
("Purchaser") and WYLIE ECONOMIC DEVELOPMENT CORPORATION, a Texas economic
development corporation("Seller"),and LAWYERS TITLE COMPANY("Title Company").
A. Seller and Purchaser entered into that certain Purchase and Sale Agreement(the"Contract")
executed as of September, 2016 for certain property located in the City of Wylie, Collin
County,Texas described in Exhibit"A"to the Contract(the"Property").
B. Purchaser and Seller desire that Title Company hold the Earnest Money in escrow as defined
in and required under the Contract and this Agreement,subject to the Conditions of Escrow,
attached to this Agreement.
C. In consideration of the promises and undertakings in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which is acknowledged, the parties
covenant and agree as follows:
1. Purchaser and Seller hereby appoint Lawyers Title Company as escrow agent.
2. Purchaser will deliver and deposit with Title Company the amount of Ten Thousand
and No/100 Dollars (810,000.00) representing the Earnest Money as required by the Contract. Title
Company will confirm, by written notice to Seller and Purchaser, receipt of the Earnest Money. Title
Company agrees to deposit the funds in a money market, interest-bearing account and to hold and
disburse the funds as provided in this Agreement.Any additional earnest money required by the Contract
will likewise be deposited if and when due with Title Company and will be a part of the"Earnest Money"
in this Agreement. Purchaser's Federal Taxpayer Identification Number is: 58-0941582. All interest
will accrue to and be reported to the Internal Revenue Service for the account of Purchaser.
3. Upon written notification from Purchaser and Seller that the sale is consummated, Title
Company will deliver the Earnest Money to Seller to be applied to the purchase price.
4. Upon written notification from Purchaser and Seller that the sale will not take place,Title
Company will deliver the Earnest Money in accordance with the release disbursement instructions also
included in this Agreement. Notwithstanding the foregoing, in the event Purchaser terminates the
Contract during the Inspection Period (as defined in the Contract) in accordance with the terms of the
Contract, Purchaser will provide a copy of the termination to Title Company, and Title Company will
immediately deliver the Earnest Money to Purchaser without requiring approval or authorization from
Seller.
5, The parties covenant and agree that in performing any of its duties under this Agreement,
Title Company will not be liable for any loss, costs or damage which it may incur in the capacity of Title
Company, except for any loss, costs or damage arising out of its own default or gross negligence or
willful misconduct. Accordingly,Title Company will not incur any liability with respect to(i)any action
taken or omitted to be taken in good faith upon advice of counsel for the parties given with respect to any
questions relating to duties and responsibilities, or(ii) any action taken or omitted to be taken in reliance
upon any documents, including but not limited to, any written notice of instruction provided for in this
Agreement or in the Contract, not only as to its execution and the validity and effectiveness of its
29154052v1
CLEAN-v4-Earnest Money Escrow Agreement-Wylie BDC-ChickFilA 1973655(4).docx
provisions, but also to the truth and accuracy of any information contained in the same, which Title
Company in good faith believes to be genuine, to be signed or presented by a proper person or persons
and to conform with the provisions of this Agreement.
6. The parties covenant and agree that, in an event of a dispute under this Agreement, the
Title Company may, in the Title Company's discretion, tender into the registry or custody of any court of
competent jurisdiction sitting in the state where the Property is located, all money held under the terms of •
this Agreement, together with such legal pleading as is appropriate and will be discharged of its duties
under this Agreement. Title Company will be reimbursed for any and all costs and expenses, including
reasonable attorney's fees in connection with any such action. •
7. Notices will be given in accordance with Section 16 of the Contract. The address for
Title Company is:
Lawyers Title Company
Attn: D.Barron Cook
250 South Highway 78
Wylie,Texas 75098
Phone: 972.442.3541
• Facsimile: 972.442.4162
[SIGNATURES APPEAR ON'1'Hi i FOLLOWING PAGES]
29154052v1
CLEAN-v4-Earnest Money Escrow Agreement-Wylie EAC-ChickFilA_1973655(4).docz
CONDITIONS OF ESCROW
Title Company accepts this undertaking subject to these Conditions of Escrow:
1. The Earnest Money may be processed for collection in the normal course of business by Title
Company, who may commingle funds received by it with escrow funds of others in its regular
escrow account at Inwood National Bank (the "Depository"). Title Company will not be
accountable for any incidental benefit which may be attributable to the funds so deposited.
2. Title Company will not be liable for any loss caused by the failure, suspension, bankruptcy or
• dissolution of the Depository;
3. Title Company will not be liable for loss or damage resulting from:
a. any good faith act or forbearance of Title Company;
b. any default,error,action or omission of any party, other than the Title Company;
c. any defect in the title to any property unless such loss is covered under a policy of title
insurance issued by the Title Company;
d. the expiration of any time limit or other delay which is not solely caused by the failure of
Title Company to proceed in its ordinary course of business, and in no event where such
time limit is not disclosed in writing to the Title Company;
e. the lack of authenticity of any writing delivered to Title Company or of any signature, or
the lack of authority of the signatory to sign the writing; •
f. Title Company's compliance with all attachments,writs, orders,judgments, or other legal
process issued out of any court;
g. Title Company's assertion or failure to assert any cause of action or defense in any
judicial or administrative proceeding; and
h. Any loss or damage which arises after the Earnest Money has been disbursed in
accordance with the terms of this Agreement.
4. Title Company will be fully indemnified by the parties for all its expenses, costs and reasonable
attorney's fees incurred in connection with any interpleader action which Title Company may file,
in its sole discretion, to resolve any dispute as to the Earnest Money; or which may be filed
against the Title Company Such costs, expenses or attorney's fees, as well as the fees of Title
Company described below,may be deducted from the Earnest Money.
5. If Title Company is made a party to any judicial,non judicial or administrative action,hearing or
process based on acts of any of the other parties and not on the malfeasance and/or negligence of
Title Company in performing its duties, the expenses, costs and reasonable attorney fees incurred
by Title Company in responding to such action, hearing or process may be deducted from the
funds held and the party/parties whose alleged acts are a basis for such proceedings will
indemnify and hold Title Company harmless from said expenses,costs and fees incurred.
6. Title Company's fee for acting escrow agent is shown on its Escrow Services and Charges which
is available upon request. These fees,which may be paid in advance or will be deducted from the
account upon disbursement, are the joint and several obligation of each party to any agreement,
sales contract or other writing forming the basis for this escrow undertaking.
7. All controversies, issues, interpretation and other matters relating in any way to these Conditions
of Escrow will be interpreted and governed by the laws of the State of Texas.
29154052v1
CLEAN-v4-EamestMoney Escrow Agreement-Wylie EDC-ChickFi1A 1973655(4).docx
8. In the event of any conflict between the terms any provisions of these Conditions of Escrow and
the terms and provisions of the Agreement or other document to which this is attached,the terms
and provisions of these Conditions of Escrow will prevail.
9. Title Company will be fully indemnified by the other parties and such parties will hold Title
Company harmless from all damages, costs, claims and expenses arising from Title Company's
performance of its duties under this Agreement, including reasonable attorney's fees, except for
those damages, costs, claims and expenses resulting from the gross negligence or willful
misconduct of Title Company.
29154052v)
CUiA v4-Eamcs1 Money Escrow Ag:ecmcnt-Wylia EEC-ChickFilA_1973655(4).docx
TITLE COMPANY:
LAWYER'S 1'11'LE
8 : � �—
y 1 r r4 COW—
Tale:
E >c.Ra4.l 4c-
(CORPORATE SEAL)
(See following page for Seller's signature)
29154052v!
The undersigned have.caused this Agreement to be duly executed under seal as of day and year
first above written.
PURCHAIIt:
CHICK-FIL-A,INC.,a Georgia corporation
By: U �
Name: Kell 0.Ludwick
Title: Vice President,Labor and Emplaymerri
(CORPORATE SEAL)
(See following.page for Title Company's signature)
29154O52vi
SELLER:
WYLIE ECONOMIC DEVELOPMENT
CORPORATION,a Texas economic development
corporation
By:
Name: . _ _1 L.
Title:
(CORPORATE SEAL)
29154052v1
FIRST AMENDMENT TO PURCHASE AND SAL,E AGREEMENT
Wylie EDC/Chick Fil-A
(1.53 acres-Wylie,Texas)
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
("Amendment") is entered into and effective on September 28, 2016, between WYLIE
ECONOMIC DEVELOPMENT CORPORATION, a Texas economic development
corporation("Seller") and CHICK FIL-A,INC.,a Georgia corporation("Purchaser")..
WHEREAS, the parties hereto entered into a Purchase and Sale Agreement, dated to be
effective September 14, 2016 (the "Contract"), whereby Seller agreed to sell to Purchaser and
Purchaser agreed to purchase from Seller,approximately 1.53 acres,at the northeast corner of State
Highway 78 and Cooper Drive in the City of Wylie, Collin County, together with any and all
improvements,appurtenances,rights,privileges and easements benefiting,belonging or pertaining to
the Land,and all right,title and interest of Seller in and to any land lying in the bed of any road in
front of or adjoining the Land, together with any strips or gores relating to the Land (collectively;
the"Property");and
WHEREAS, Seller and Purchaser desire to amend and modify the Contract in certain
respects as set forth below.
NOW, THEREFORE, in consideration of the premises, and other good and valuable
consideration,the receipt and sufficiency of which the parties hereby acknowledge, the parties agree
• to amend the Contract as follows:
1. Capitalized Terms. Unless otherwise defined herein, capitalized terms shall have
the meaning as set forth in the Contract.
2. Effective Date,The parties agree that the Effective Date of the Contract is hereby
amended and modified from September 14,2016 to September 26,2016.
3. Continued Validity. Except as amended herein, each and every term of the
Contract shall remain in full force and effect as originally written and executed.
4. Counterparts/Delivery. This instrument may be executed in any number of
counterparts and by the different parties on separate counterparts, and each such counterpart shall
be deemed to be an original but all such counterparts shall together constitute one and the same
agreement The parties hereto may execute and deliver this instrument by forwarding facsimile,
telefax, electronic pdf or other means of copies of this instrument showing execution by the parties
sending the same. The parties agree and intend that such signature shall have the same effect as an
original signature,that the parties shall be bound by such means of execution and delivery,and that
the parties hereby waive any defense to validity based on any such copies or signatures.
5. Captions. Headings of paragraphs are for convenience of reference only and shall
not be construed as part of this Amendment
[signatures appear on the following page]
First Amendment to Purchase&Sale Agreement Page 1
Wylie EDC/Chick-Fil-A-1.53 acme—Wylie,Collin County,Texas
PSA-let Amendment-1.53 ace-Wylie EDC to Chick-Fil-A-09-26-16 1989164(1).DOCX
IN WTINESS WHEREOF, the parties have caused this Amendment to be executed and
caused this amendment to be effective as of the date set forth above.
SELLER
WYLIE ECONOMIC DEVELOPMENT
CORPORATION,a Texas economic development
corporation
By:4
N .c�.ame Aos-t t L ilei .9tv
its: a tariec_io/'
a
CHI :W• r A,INC.,a Georgia corporation
By:
Name: 'I,1€>• ' • ��
Its: . 5112. -A>;ZC-C✓ •
Fires Amendment to Purchase&Sale Agreement Page 2
Wylie EDC/Chick Fil--A-153 acres—Wylie,Collin County,Texas
PSA-1st Amendment 1.53 stc.-Wylie EDC to Chick-Fil-A-09 26-16_1989164(1).DOCX
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Second
Amendment"), is entered into and is effective as of the 30h day of December, 2016 by and between
WYLIE ECONOMIC DEVELOPMENT CORPORATION, a Texas economic development corporation
("Seller"),and CHICK-FIL-A,INC.,a Georgia corporation("Purchaser").
WITNES SETH:
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Agreement dated
September 26,2016, as amended by First Amendment to Purchase and Sale Agreement dated September
28,2016 (collectively,the"Contract"),for certain property consisting of approximately 1.53 acres located
in the City of Wylie,Collin County,Texas,as more particularly described in the Contract;and
WHEREAS, Seller and Purchaser desire to modify and amend the Contract in certain respects, as
more particularly set forth in this Second Amendment.
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars ($10.00) and the
premises, and other good and valuable consideration,the receipt, adequacy and sufficiency of which are
hereby acknowledged by Seller and Purchaser,Seller and Purchaser covenant and agree as follows:
1. Defined Terms. Capitalized terms used but not defined in this Second Amendment will
have the meanings given to them in the Contract.
2. Extension of Inspection Period. Notwithstanding anything to the contrary-in the
Contract, the Inspection Period is extended until 5:00 p.m., Central Time, on January 26, 2017, solely
with respect to Purchaser's right to terminate the Contract pursuant to Section 5 of the Contract based
upon its good faith determination that the results of Purchaser's environmental investigations are not
satisfactory to Purchaser in its sole discretion.
3. Modifications to Critical Dates. Notwithstanding anything to the contrary set forth in the
Contract,Purchaser and Seller hereby acknowledge and agree to the following:
(a) Purchaser agrees to make its initial submittal for the Permits no later than February 10,
2017.
(b) The initial ninety (90)-day Permitting Period will expire on March 27, 2017. Purchaser
will have the right to extend the Permitting Period as provided in Section 6 of the Contract.
4. Ratification. As expressly modified by this Second Amendment, the Contract is hereby
ratified and confirmed by Seller and Purchaser.
5. Counterparts; Transmission. This Second Amendment may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which shall constitute one and the
same agreement. Transmission of an executed signature page of this Second Amendment by email will
be effective to create a binding agreement.
[Signatures appear on next page]
30030637
IN WITNESS WHEREOF,the parties hereto have executed this Second Amendment the day and
year first above written,
PURCHASER:
CHICK-FIL-A INC.,
a Georgia ❑rp,ration
BN a: e: Y —
(CORPORATE SEAL)
SELLER:
WYLIE ECONOMIC DEVELOPMENT CORPORATION.
a Thxas economic development corporation
Name:-
Title: — .... - --
(CORPORATE SEAL)
mx)3o837
IN WITNESS WHEREOF,the parties hereto have executed this Second Amendment the day and
year first above written.
PURCHASER:
CHICK-FIG-A,INC.,
a Georgia corporation
By:
Name:
Title:
(CORPORATE SEAL)
SELLER:
WYLIE ECONOMIC DEVELOPMENT CORPORATION,
a Texas economic Bevel pment corporation
By: [f1, G ktf!' ;
Name: t r 1, ) i.r I( i`
(CORPORATE SEAL)
300/30637
THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Third
Amendment"), is entered into and is effective as of the l day of Fe6h4 n ty , 2017 by and
between WYLIE ECONOMIC DEVELOPMENT CORPORATION, a Texas economic development
corporation("Seller"), and CHICK-FIL-A,INC., a Georgia corporation("Purchaser").
WITNESSETH:
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Agreement dated
September 26, 2016, as amended by First Amendment to Purchase and Sale Agreement dated September
28, 2016 and as further amended by Second Amendment to Purchase and Sale Agreement dated
December 30, 2016 (collectively, the "Contract"), for certain property consisting of approximately 1.53
acres located in the City of Wylie, Collin County, Texas, as more particularly described in the Contract;
and
WHEREAS, Seller and Purchaser desire to modify and amend the Contract in certain respects, as
more particularly set forth in this Third Amendment.
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars ($10.00) and the
premises, and other good and valuable consideration,the receipt, adequacy and sufficiency of which are
hereby acknowledged by Seller and Purchaser, Seller and Purchaser covenant and agree as follows:
1. Defined Terms. Capitalized terms used but not defined in this Third Amendment will
have the meanings given to them in the Contract.
2. Extension of Inspection Period. Notwithstanding anything to the contrary in the
Contract,the Inspection Period is extended until 5:00 p.m., Central Time, on March 2,2017, solely with
respect to Purchaser's right to terminate the Contract pursuant to Section 5 of the Contract based upon its
good faith determination that the results of Purchaser's environmental investigations are not satisfactory to
Purchaser in its sole discretion.
3. Modifications to Critical Dates. Notwithstanding anything to the contrary set forth in the
Contract,Purchaser and Seller hereby acknowledge and agree to the following:
(a) Purchaser agrees to make its initial submittal for the Permits no later than February 10,
2017.
(b) The initial ninety (90)-day Permitting Period will expire on March 27, 2017. Purchaser
will have the right to extend the Permitting Period as provided in Section 6 of the Contract.
4. Ratification. As expressly modified by this Third Amendment, the Contract is hereby
ratified and confirmed by Seller and Purchaser.
5. Counterparts; Transmission. This Third Amendment may be executed in multiple
counterparts, each of which shall be deemed an original, and-all of which shall constitute one and the
same agreement. Transmission of an executed signature page of this Third Amendment by email will be
effective to create a binding agreement.
[Signatures appear on next page]
30304520v1
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment the day and
year first above written.
PURCHASER:
CHICK FIL-A,INC.,
a -. ;'a corporation
B w. IP■ il1. . - ALIJUMP
(Na e: Ste.Hanle
Title Olrector, :,: .:
(CO" TE SEAL)
SELLER:
WYLIE ECONOMIC DEVELOPMENT CORPORATION,
a Texas economic development corporation
By:
Name:
Title:
(CORPORATE SEAL)
3030452AvI
IN WITNESS WHEREOF,the parties hereto have executed this Third Amendment the day and
year first above written.
PURCHASER:
CHICK-FIL-A, INC.,
a Georgia corporation
By:
Name:
Title:
(CORPORATE SEAL)
SELLER:
WYLIE ECONOMIC DEVELOPMENT CORPORATION,
a Texas economic development corporation
By: -.11 G 44'u1, tcx
Name: mars Fit Its(
Title: C'v 61dz4
(CORPORATE SEAL)
30304520vI
1
BRIAN J.MINK TROUTMAN TROUTMAN SANDERS LLP
404,885.3242 telephone Attorneys at Law
4brlan.mink@troulmansanders.com
0t facsimiloulmane SANDERS Bank of merica Plaza
brlan.mink@troulmansanders.com 600 Peachtree Street,NE,Suite 5200
Atlanta,Georgia 30308-2216
4041485.3000telephone .
Iroutmansenders.com
March 13,2017
VIA FEDEX
Wylie Economic Development Corporation
250 State Highway 78
Wylie,Texas 75098
ATTN: Sam Satterwhite
Re: Purchase and Sale Agreement dated September 14, 2016 (as amended, the "Contract")
between Wylie Economic Development Corporation, a Texas economic development
corporation ("Seller"), and Chick-fil-A, Inc., a Georgia corporation ("CFA"), for
approximately 1.53 acres located in the City of Wylie, Collin County, Texas (the
"Property")
Dear Sam:
The Permitting Period under the Contract is set to expire on Monday, March 27, 2017. Despite
its diligent efforts, CFA has not received its Permits yet. Accordingly, this letter serves as notice that
CFA is exercising its right under Section 6 of the Contract to extend the Permitting Period for an
additional thirty (30) days. The Permitting Period will now expire on Wednesday, April 26, 2017. All
capitalized terms used in this letter have the meanings given to them in the Contract.
Best regards,
Brian J.Mink,Esq.
cc: Abernathy,Roeder,Boyd&Hullett
1700 Redbud Boulevard, Suite 300
McKinney,Texas 75069
ATTN:Randy Hullett
Mr.Tyrone Dillard(via e-mail)
Vance Burgess,Esq.(via e-mail)
Ms.Getra Sanders(via e-mail)
Ms.Bonnie Jacobs(via e-mail)
Ms.Brittany Berube(via e-mail)
Ms.Natalie Knowles(via e-mail)
Michael H.Wall,Esq.(via e-mail)
ATLANTA BEIJING CHARLOTTE CHICAGO HONG KONG NEW YORK ORANGE COUNTY PORTLAND
RALEIGH RICHMOND SAN DIEGO SHANGHAI TYSONS CORNER VIRGINIA BEACH WASHINGTON, DC
30565227v1
FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Fifth
Amendment"), is entered into and is effective as of the day of June, 2017 by and between WYLIE
ECONOMIC DEVELOPMENT CORPORATION, a Texas economic development corporation
("Seller"), and CHICK-FIL-A, INC., a Georgia corporation("Purchaser").
WITNESSETH:
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Agreement dated
September 26, 2016, as amended by First Amendment to Purchase and Sale Agreement dated September
28, 2016, as further amended by Second Amendment to Purchase and Sale Agreement dated December
30, 2016, as further amended by Third Amendment to Purchase and Sale Agreement dated February 1,
2017 and as further amended by Fourth Amendment to Purchase and Sale Agreement dated March 6,
2017 (collectively,the "Contract"), for certain property consisting of approximately 1.53 acres located in
the City of Wylie, Collin County, Texas, as more particularly described in the Contract; and
WHEREAS, Seller and Purchaser desire to modify and amend the Contract in certain respects, as
more particularly set forth in this Fifth Amendment.
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars ($10.00) and the
premises, and other good and valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged by Seller and Purchaser, Seller and Purchaser covenant and agree as follows:
1. Defined Terms. Capitalized terms used but not defined in this Fifth Amendment will
have the meanings given to them in the Contract.
2. Descriptions of Land and Adioinin2 Property. Pursuant to Section 23 of the Contract,
Seller and Purchaser have agreed to amend the Contract to replace Exhibit "A" and Exhibit "B" with the
legal descriptions of the Land and the Adjoining Property, respectively, based on the Plat. Accordingly,
Exhibit "A" attached to the Contract is deleted in its entirety and replaced with Exhibit "A" attached to
this Fifth Amendment. Exhibit "B" attached to the Contract is deleted in its entirety and replaced with
Exhibit"B" attached to this Fifth Amendment.
3. Development-Related Matters and Cost Sharing. Pursuant to Section 24 of the
Contract, Seller agreed that Seller would reimburse Purchaser for that portion of the Lane Contribution
not covered by the Credit. Purchaser and Seller acknowledge that none of the Lane Contribution was
covered by the Credit and that Purchaser has not yet paid any portion of the Lane Contribution to Seller.
Accordingly, Purchaser and Seller agree that since Purchaser is paying the Development Fees to the City
of Wylie as defined in Section 24 of the Contract, Purchaser will not pay the Lane Contribution to Seller
at Closing.
4. Ratification. As expressly modified by this Fifth Amendment, the Contract is hereby
ratified and confirmed by Seller and Purchaser.
5. Counterparts; Transmission. This Fifth Amendment may be executed in multiple
counterparts, each of which will be deemed an original, and all of which will constitute one and the same
agreement. Transmission of an executed signature page of this Fifth Amendment by email will be
effective to create a binding agreement.
[Signatures appear on next page]
2185495v3
IN WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment the day and
year first above written.
PURCHASER:
CRICK-FIL,A. INC..
a Georgia corporation
By:
Name:
Title:
(CORPORATE SEAL)
SELLER:
WYLIE ECONOMIC DEVELOPMENT CORPORATION,a
Texas economic development corporation
By:
Name:
Title:
(CORPORATE SEAL)
2185495 3
EXHIBIT "A"
DESCRIPTION OF LAND
Lot 5R of Railroad Industrial Park Addition. City of Wylie. Collin County, Texas. according to the Final
Plat recorded as Instrument Number 201704I9010001900 in the Real Estate Records of Collin County,
Texas.
2185.1950
EXHIBIT "B"
DESCRIPTION OF ADJOINING PROPERTY
Lori •44R of Railroad Industrial Park Addition, City of Wylie, Collin County. Texas. according,to the Final
Plat recorded as Instrument Number 20170419010001900 in the Real Estate Records or Collin County.
Texas.
1 H5495v3