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HomeMy WebLinkAbout2012-22 Approving Purchase and Sale Agreement for Real Property At 75 S. Frontage RdRESOLUTION NO. 22 Series of 2012 A RESOLUTION APPROVING A PURCHASE AND SALE AGREEMENT FOR A PORTION OF THE REAL PROPERTY LOCATED AT 75 SOUTH FRONTAGE ROAD, VAIL, COLORADO. WHEREAS, the Town of Vail (the "Town"), in the County of Eagle and State of Colorado is a home rule municipal corporation duly organized and existing under the laws of the State of Colorado and the Town Charter (the "Charter"); WHEREAS, the members of the Town Council of the Town (the "Council") have been duly elected and qualified; WHEREAS, the Council previously approved by ordinance the sale of a portion of the real property located at 75 South Frontage Road, Vail, Colorado for $5 million, subject to the negotiation and execution of a mutually acceptable purchase and sale agreement between the Town and the purchaser (Vail MOB, LLC); and WHEREAS, the Town and Vail MOB, LLC have negotiated the attached Purchase and Sale Agreement, and the Town Council wishes to approve that Purchase and Sale Agreement by this Resolution. NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: The Purchase and Sale Agreement attached hereto as Exhibit A and incorporated herein by this reference is hereby approved, and the Town Manager is authorized to execute such Purchase and Sale Agreement on behalf of the Town. INTRODUCED, PASSED AND ADOPTED AT A REGULAR MEETING OF THE TOWN COUNCIL OF THE TOWN OF VAIL HELD THIS 1ST DAY OF MAY 2012. rew P. Daly, Mayor of the Town of Vail, Colorado ,, �,�. �/��l !' ,.��� : .. . . . � r Resolution No. 22, Series of 2012 �OF .V;9�� �� i • • • i ['�� • � _ • � �� • • � � ••••���������•AV. PURCHASE AND SALE AGREEMENT (75 South Frontage Road, Vail, Colorado) THIS PURCHASE AND SALE AGREEMENT (the "Contract"), dated as of the last date of the signatures of the parties set forth below (the "Effective Date"), is by and between THE TOWN OF VAIL, a Colorado home rule municipality ("Seller"), and VAIL MOB, LLC, a Colorado limited liability company ("Parchaser"). RECITALS A. Seller owns certain real property of approximately fifty-seven one hundredths (0.5'n acres more or less, situate, lying and being in the Town of Vail, Eagle County, State of Colorado, currently known as 75 South Frontage Road, Vail, Colorado (the "Pazcel") and more particulazly described in Exhibit A attached hereto; B. Seller desires to redevelop the adjoining parcel (the "Municipal Center Pazcel") in preparation for the construction of a new municipal building, and has agreed with the Vail Clinic, Inc., d/b/a Vail Valley Medical Center ("VVMC"), The Steadman Clinic, Professional LLC ("SC"), Triumph Vail MOB, LLC, a Delaware limited tiability company ("Developer") and Purchaser to cooperate in, and to share certain costs of, a project (the "Project") benefiting both the Municipal Center Parcel and the Pazcel, and the preparation by Developer of a building pad site on the Municipal Center Parcel; C. VVMC, SC, Developer and Purchaser propose to construct on the Parcel a medical office building of approximately 56,000 gross square feet (the "MOB"), with a sky bridge connecting the MOB to the Vail Valley Medical Center, and with underground parking for use by both the MOB and the new municipal building to be located on the Municipal Center Parcel, comprising not less than two hundred (200) surface and underground parking spaces, or such greater number of pazking spaces as may be required by zoning requirements (the "Intended Use"); and D. To allow for the Project, Seller desires to sell the Parcel to Purchaser, and Purchaser desires to purchase the Parcel from Seller, in accordance with the terms and conditions herein. NOW, THEREFORE, in consideration of the mutual covenants and agreement herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Contract of Purchase aad Sale. a. Seller hereby agrees to sell and convey to Purchaser fee simple tit(e to the Parcel, together with all buildings, fixtures and improvements located thereon all benefits, privileges, tenements, hereditaments, rights and appurtenances thereto in anywise belonging to Seller, including, but not limited to, all permits, authorizations, governmental entitlements, licenses, approvals and easements which benefit the Pazcel, all right, title and interest of Seller, if any, in and to all strips or gores of land, if any, az�✓zoiz Q: I USERS1 VAILIMOBI PSA-FlNAL. DOC between the real properry and abutting properties, all right, title and interest of Seller, if any, in and to any and all oil, gas and minerals lying under, in, on or about or consrituting a part of the real property, regardless of whether or not the minerals are considered part of the surface estate or part of the mineral estate, and all water, sewer and other utility capacity commitments and/or credits which pertain to or inure to the benefit of such real properiy (the foregoing is collectively referred to herein as the "Properiy"), and Purchaser agrees to purchase the Property at the Purchase Price and upon the terms set forth herein. b. Seller and Purchaser acknowledge that the Property is being sold "as is", and other than the representations and warranties set forth in Section 5 hereof, Seller makes no warranties as to the condition of the Property or its suitability for the uses intended by Purchaser, and it is Purchaser's sole duty to make all of the following inspections, investigations and tests of the Property: i. Inspecting, surveying, engineering, structural, mechanical, architectural and environmental studies, assessments and audits (including a Phase I Environmental Assessment), soil testing, soil compaction and grading elevations, testing for the presence of naturally occurring radioactive materials, and otherwise determining the condition of the Property and prior uses of the Properiy; ii. Determining that utility services, including, without limitation, water, storm sewer, sanitary sewer, gas, electricity and telephone are or can be made available to serve the Intended Use of the Property and that service lines can be extended to and within the Property; ii. Evaluating all storm drainage requirements, and, if applicable, any Environmental Protection Agency or other federal or state health or environmental requirements or approvals; and ii. Reviewing the title and status of the Property to determine if title is merchantable. 2. Purchase Price. a. The purchase price (the "Purchase Price") for the Property shall be FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00). The Purchase Price shall be payable in cash at Closing. b. At Closing, Seller shall deliver an amount equal to the lesser of FIVE MILLION DOLLARS AND NO/100 DOLLARS ($5,000,000) or the amount of Seller's pro-rata share of the actual Project costs as more particularly described in the Development Management Agreement to be executed between Seller and Developer (the "TOV Project Costs") in escrow to Title Company, to be held and disbursed strictly in accordance with the provisions of an escrow agreement to be negotiated between Developer and Purchaser (the "Escrow Agreement (TOV Project Costs)"). 2 4/2Q/2012 Q: I USERSI VA/LIMOBIPSA-Fl� AL.DOC 3. Due DiliQence Information. Title Commitment and Survev. a. Previously Delivered Title Report and Survey. Purchaser hereby acknowledges receipt of a title report from Land Title Guarantee Company, dated December 16, 2011 (the "Title Report"). Purchaser hereby additionally acknowledges receipt of an ALTA/ACSM Land Title Survey of the Property dated December 27, 2011, from Eagle Valley Surveying, Inc. ("Survey A"). b. Delivery of Documents. No later than five (5) days after the Effective Date, Seller shall deliver or cause to be delivered to Purchaser, at Seller's sole cost and expense, any and all documents relating to the Property in Seller's custody and control. c. Title Commitment. Within ten (10) days following the Effective Date, Seller shall cause to be delivered to Purchaser: (i) a current ALTA Commitment for Owner's Policy of Title Insurance (hereinafter referred to as the "Title Commitment") issued by Land Title Guaranty Company on behalf of an underwriter acceptable to Purchaser (the "Title Company"), whereby said Title Company commits to issue an Owner's Policy of Title Insurance ("Owner's Policy") in the amount of the Purchase Price written in accordance with this Contract; and (ii) copies of all documents shown as exceptions on the Title Commitment (the "Exception Documents"). The Title Commitment shall describe the Property; shall list Purchaser as the prospective named insured; shall show as the policy amount the Purchase Price; shall contain the commitment of the Title Company to insure Purchaser's fee simple interest in the Property upon the Closing; shall commit to delete or insure over the so-called "standard exceptions" (at Seller's expense) which relate to: (i) parties in possession; (ii) unrecorded easements; (iii) survey matters; (iv) any unrecorded mechanic's liens; (v) gap period (effective date of commitment to date deed is recorded); and (6) unpaid taxes, assessments and unredeemed tax sales prior to the year of Closing. e. Obiections. Purchaser shall have a period of thirty (30) days from receipt of the last of the Title Commitment and Exception Documents (the "Document Objection Period") in which to review such items and deIiver to Seller, in writing, such objections as Purchaser may have to anything contained or set forth therein ("Purchaser's Objection"). Any items shown on Survey A or the Title Commitment to which Purchaser does not object during the Document Objection Period shall be deemed to be approved by Purchaser and shall be referred to as the "Permitted Exceptions" for purposes of this Contract. Seller shall use its best efforts to remedy or cure Purchaser's objections during the fifteen (15) day period following Seller's receipt thereof (the "Cure Period") and provide to Purchaser prior to the close of the Cure Period a written response to Purchaser's Objection detailing the steps Seller has taken to cure any such objections, if such objections were cured, or a statement detailing why Seller does not intend to cure any such objecrions. Purchaser shall have ten (10) days after the expiration of the Cure Period to either: (i) terminate this Contract by written notice to Seller; or (ii) proceed to Closing hereunder, with those items that Seller has elected not to cure being deemed approved by Purchaser and constituting a part of the Permitted Exceptions. Notwithstanding the foregoing: (a) the standard preprinted exceptions set forth in the Title Commitment shall not constitute Permitted Exceptions for purposes hereof; (b) al( 4/26/2012 Q:1 USERSI YA/41MOBIPSA-F/J ,1L.DOC matters reflected on Schedule B-1 of the Title Commitment, liens and items which are designated by the Title Company as matters to be satisfied prior to Closing shall not constitute Pernutted Exceptions and shall be discharged and sarisfied by Seller prior to Closing; and (c) if any exceptions to title aze created after the date hereof by Seller, Seller shall, if objected to by Purchaser, cause same to be released and discharged, and same shall not constitute a Permitted Exception for purposes hereof. To the extent Seller has not complied with its obligations under the preceding sentence as of the Closing, Purchaser shall be entitled to terminate this Contract. f. Additional Exceptions. In the event that at any time following delivery of the Title Commitment or Exceprion Documents, but prior to Closing, any changes (other than the deletion or elimination of any item as to which Purchaser has made an objection) shall occur in the Title Commitment or Exception Documents, in addition to other remedies permitted pursuant to this Contract, Purchaser shall have the right to terminate this Contract. g. iJpdated Title Commitment. Thirty (30) days prior to Closing, Seller shall cause to be delivered to Purchaser an updated Title Commitmeni. The terms and conditions of Section 3.e above shall apply to Purchaser's review of this updated Title Commitment. 4. Insuection Period. During the term of this Contract, Purchaser shall have the right at any time to enter onto the Property for any purpose, including conducting such audits, inspecrions, or investigarions thereon as Purchaser may deem appropriate, in Purchaser's independent discretion. The cost of the inspections undertaken by Purchaser pursuant to this Contract shall be borne solely by Purchaser. Seller acknowledges and agrees that, by reason of the unified development contemplated for the Property and the Municipal Center Parcel, Purchaser shall also have the right to enter upon, test, study, survey, inspect, and conduct such engineering, architectural, environmental, soil, economic and other tests on the Municipal Center Parcel as Purchaser shall deem necessary or desirable. On or prior to the expiration of one hundred twenty (120) days following the Effective Date (the period ending on such date being referred to herein as the "Inspection Period"), Purchaser shall be entitled, for any reason in Purchaser's sole discretion, to submit to Seller written notice terminating this Contract or, if Purchaser elects, to submit a notice to correct with a description of those unsatisfactory conditions at the Property which Purchaser requires Seller to remedy. If Purchaser delivers a notice to correct, Seller shall have thirty (30) days to submit to Purchaser a response to the notice to correct, informing Purchaser of Seller's intent to either remedy such conditions or leave such conditions in place. Purchaser shall have ten (10) days after receipt of Seller's response to either accept Seller's response and waive any such unsatisfactory conditions that Seller has elected not to remedy or terminate the Contract. If Purchaser fails in either scenario referenced above to submit written notice of its intent to terminate in the applicable time period, Purchaser shall be deemed to have waived its right to terminate the Contract under this Section 4. 4 ea�✓ZO�2 Q: I USERSI VAILI MOBIPSA-F!� AL.DOC 5. ReuresentaHons and Warranties. a. Seller represents and warrants to Purchaser as follows as of the date hereof and shall such representations and warranties shall be deemed remade as of the Closing: i. Seller has and will convey to Purchaser at Closing, good and marketable title to the Property, free from all liens and encumbrances, and otherwise subject only to the Permitted Exceptions. ii. There will be, as of the Closing no parties in possession of any portion of the Property as lessees, tenants at sufferance or trespassers. iii. There is no pending or, to Seller's curtent knowledge, threatened condemnation or similar proceeding or special assessment (inclusive of assessments for street widening, repair or improvement) affecting the Properly. iv. There is no pending or, to Seller's current knowledge, threatened litigation or administrative proceeding affecting Seller's ability to fulfill its obligations under this Contract. v. Seller has not received notice from any govemmental authority that the Property is currently not in compliance with or is in violation of any applicable govemmental laws, rules or regulations affecting the Property. vi. The execution and delivery of, and Seller's performance under, this Contract are within Seller's powers and have been duly authorized by all requisite actions. The individual who executes and delivers this Contract and all documents to be delivered by Seller to Purchaser hereunder is and shall be duly authorized to do so. This Contract constitutes a binding obligation of Seller enforceable in accordance with its terms. Seller is duly organized, validly existing and in good standing under the laws of the state of its origin. Seller is not prohibited from consummating the transactions contemplated in this Contract by any law, regulation, agreement, instrument, restriction, order or judgment. vii. To the best of Seller's knowledge, there are no attachments, executions, assignments for the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy or under other debtor relief laws contemplated by, pending, or threatened against Seller or the Property that would affect Seller's obligarions under this Contract. viii. There are not any outstanding contracts or options to purchase the Property or any portion thereof in favor of any third party. ix. To the best of Seller's knowtedge, the Property (including land, surface and subsurface soil, surface water, ground water, and improvements, if any) is free of any waste, debris, or contaminarion in quantities prohibited by, or that could require remediation under, any applicable law, statute or regulation and the 4/1Q/10/2 Q:IUSERSIVAlLIMOBIPSA-Fq AL.DOC Property has not been used for the production, storage or disposal of hazardous materials or environmental contaminants. x. To Seller's knowledge, there aze no pending proceedings to change or down-zone the existing zoning classifications as to any portion of the Property, and there exists no current threat of the institution or proposed institution of any such action. The Property is not within a"historic district," and contains no structures that have been declared "historic structures" under federal or local law. xi. The Property is adequately served by public or authorized private utility providers, which furnish gas, electricity, telecommunications, water, sewer and drainage facilities. Seller has no responsibility for maintenance of off-site lines, pumps, lift stations, or other facilities. xii. There are no unpaid bills or claims that may give rise to a lien against the Property. b. Purchaser represents and warrants to Seller as follows as of the date hereof and such representations and warranties shall be deemed remade as of the Closing: i. The execurion and delivery of, and Purchaser's performance under, this Contract are within Purchaser's powers and have been duly authorized by all requisite actions. The individual who executes and delivers this Contract and all documents to be delivered by Purchaser to Seller hereunder is and shall be duly authorized to do so. This Contract constitutes a binding obligation of Purchaser enforceable in accordance with its terms. Purchaser is duly organized, validly existing and in good standing under the laws of the state of its origin. Purchaser is not prohibited from consummaring the transactions contemplated in this Contract by any law, regulation, agreement, instrument, restriction, order or judgment. ii. There is no pending or, to Purchaser's knowledge, threatened litigation or administrative proceeding affecting Purchaser. iii. There are no attachments, executions, assignments for the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy or under other debtor relief laws contemplated by, pending, or threatened against Purchaser. iv. Purchaser is currently in compliance with, and shall at all times during the term of this Contract (including any extension thereo� remain in compliance with, the regularions of the Office of Foreign Assets Control ("OFAC") of the Department of the Treasury (including those named on OFAC's Specially Designated Nationals and Blocked Persons List) and any statute, executive order (including the September 24, Z001, Executive Order Blocking Property and Pmhibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto. 6 4iza��ou Q: I USERSIYAILIMOBIPSA-F/J AL.DOC 6. Covenants and AQreements. a. Seller's Covenants. i. From the Effective Date until Closing, Seller shall not, without Purchaser's prior written consent: (i) make any changes or alterations to the Parcel that would a�'ect Seller's obligations under this Contract; or (ii) negotiate, execute or create any contract or option to purchase, easement, covenant, condition, restriction, lien or encumbrance with respect to the Property or any portion thereof that would affect Seller's obligations under this Contract. To the extent that any Offsite Easements are needed over property owned by Seller, Seller shall grant such Offsite Easements to Purchaser at Closing. ii. Seller shall promptly furnish to Purchaser copies of any and all notices that Seller receives from federal, state or local govemmental authorities having jurisdiction over the Property. iii. Seller shall maintain in force a policy or policies of insurance with respect to the Property in amounts not less than is currently in force. iv. Seller shall promptly deliver to Purchaser copies of all notices received by Seller affecting the Property or the transacrions contemplated hereby, including without limitation, notices of any pending zoning changes or amendments, norices of violations affecting the Property and notices of pending or threatened condemnation of the Properiy or any roads adjacent thereto b. Purchaser's Applications. Purchaser or its authorized agents, contractors, assignees or designees shall be entitled to contact and make applications to any and all applicable local, municipal, county, state and federal agencies for any changes, authorizations and approvals which Purchaser may deem appropriate, in Purchaser's sole and absolute discretion, in connection with Purchaser's acquisition and development of the Property for the Intended Use and/or to sarisfy any condirion precedent to Purchaser's obligations under this Contract. Seller agrees to cooperate with Purchaser in connection therewith, shall execute and deliver to Purchaser, and if applicable, cause to be recorded in the official records of the County in which the Parcel is located, within three (3) days following receipt of a request therefor, such applications, consents and other documents which may be required in connecrion therewith, and shall support and not oppose Purchaser in connection with Purchaser's applications and e�'orts to obtain any changes, authorizations and approvals required to permit Purchaser to develop the Property for the Intended Use and/or to satisfy any such condition precedent, subject to Section 13(k) hereof. 7. Auurovals. a. Aonrovals. During the period ending upon the expiration of one hundred fifty (150) days after the expiration of the Inspection Period (the period ending upon such date, as extended, being referred to herein as the "Approval Period"), if Purchaser has not en�✓zo�a Q: f USERSI VA/LIMOBIPSA-F// AL.DOC sooner terminated this Contract, Purchaser shall make application to the applicable governmental authorities for a change in zoning and any and all approvals, licenses and permits which are required to permit Purchaser to construct and operate a building on the Property in accordance with its Intended Use, together with parking, and any other related amenities in accordance with Purchaser's plans and specifications therefor, as determined by Purchaser in Purchaser's sole and absolute discretion (collecrively, the "Approvals"). If Purchaser has not terminated this Contract prior to the expiration of the Inspection Period, Purchaser shall use good faith efforts to obtain the Approvals. Purchaser shall be responsible for paying all costs incurred by Purchaser in connecrion with the Approvals. The Approvals shall not be deemed to be final until such time as the Approvals have been adopted by all applicable actions of all applicable governmental authorities subject to no conditions, exceptions or requirements which aze not acceptable to Purchaser, in Purchaser's sole and absolute discretion, all time periods for appeal shall have expired and no appeal shall have been noticed or filed in connection therewith (or if an appeal has been filed, such appeal has been dismissed or resolved in favor of the Approvals), and the Approvals shall be unappealable (the date on which all of the above have occurred is referred to herein as the "Approval Date"). If the Approvals are at any time denied or disapproved, or the Approval Date has not occurred prior to the date of expiration of the Approval Period, Purchaser shall be entitled to terminate this Contract, in which event the parties shall have no further obligations hereunder, or Purchaser may proceed to Closing hereunder. b. Extension of Auproval Period. If the Approval Date has not occurred at least five (5) days prior to the expiration of the Approval Period, as extended, Purchaser shall be entitled to extend the Approval Period for ninety (90) days, upon delivery of an extension notice to Seller and by depositing FIVE THOUSAND DOLLARS AND NO/100 ($5,000.00) as earnest money into an escrow account with the Title Company on or prior to the then applicable date of expiration of the Approval Period, which amount shall be non-refundable to Purchaser except in the event of a Seller Default as described herein, but which shall be credited toward the Purchase Price. 8. Conditions Precedent. a. The following shall each be conditions precedent to Purchaser's obligation to purchase the Property. If any one or more of such conditions precedent is not, or in the reasonable opinion of Purchaser will not be, satisfied at or prior to Closing, in addition to other remedies available to Purchaser under this Contract, Purchaser shall be entitled to waive any one or more of such conditions precedent by written norice to Seller, or to terminate this Contract by written notice to Seller, in which event the parties shall have no further obligations under this Contract. i. Purchaser shalt have received all necessary approvals and consents with respect to Purchaser's plans and specificarions, site plans and related materials, including engineering plans, plats, final development plans and profiles, and any off-site infrastructure plans, including, without limitation, plans for any required tra�c and road improvements, for water and sewer service and storm water management for the Property, information which are required pursuant to the 8 �n�2oi2 Q: I USERSI V,tlLIMOBIPSA-FI( AL.DOC provisions of any declaration or restrictions affecting the Property, and permits identified on the attached Ezhibit B, that aze necessary for Purchaser to be entitled to proceed with development of the Property (collectively, the "Approved Plans"). ii. No lawsuit, appeal or other action shall have been fled by any party, directly or ind'uectly, involving the Property, including without limitation, any such lawsuit, appeal or other action for the purpose of challenging, contesting or seeking to prohibit, restrain, enjoin or delay any change in zoning or restrictive covenants required to permit development of a medical office building on the Pazcel in accordance with Purchaser's plans, or Purchaser's development of the Parcel for such purposes. iii. There shall exist no moratorium or other action or directive by any govemmental authority which would prohibit, restrain, enjoin or delay Purchaser from constructing, or delay Purchaser in connection with the construction of, a medical office building in accordance with Purchaser's plans. iv. No adverse environmental or geological condition shall exist with respect to the Properiy. v. No action shall have been taken by the U.S. Army Corps of Engineers or other applicable govemmental authority with respect to the Property or any other property which would have the effect of reclassifying or reconSguring the size or location of any wetland or flood plain area on the Property. vi. The Title Company shall have irrevocably committed and agreed to issue to Purchaser an Owner's Policy, insuring Purchaser's title in and to the Property free and clear of liens, claims and encumbrances other than the Pernutted Exceptions. vii. Subject to the provisions of Section 13.c hereof, each of the representations and wamanties of Seller contained herein shall be true in all material respects as if made as of the date of Closing, and Seller shall have complied with and not be in material breach of any of the covenants contained in Section 6(a) hereof. viii. All offsite easements necessary for the development and use of the Parcel, including, without limitation, access and utility easements for water, sanitary sewer, stormwater management and drainage (including any such easements as may be required &om Seller in its capacity as owner of the Municipal Center Pazcel), and any such access and temporary construction easements on and across the Property as shall be necessary for construction of the project shall have been obtained and recorded among the land records. 9 �aa�2ou Q: I USERSI Vd/LIMOBIPSA-F/� AL.DOC ix. Developer shall have received an irrevocable commitment from its lender to fund a construction loan in an amount sufficient to construct the MOB and pazking facilities on the Parcel and Municipal Center Parcel. x. Seller, Purchaser and Developer have executed a Reciprocal Easement and Operating Agreement (the "REA") regarding the redevelopment of the Parcel and the Municipal Center Parcel, such REA to be recorded against the Pazcel and the Municipal Center Pazcel. Developer's participation as a parry to the REA shall automatically terminate upon termination of its leasehold interest in the Pazcel, following the completion of construction. b. By Seller. The following shall each be conditions precedent to Seller's obligation to sell the Property. If any one or more of such conditions precedent is not, or in the reasonable opinion of Seller will not be, satisfied at or prior to Closing, Seller shall be enritled to waive any one or more of such conditions precedent by written norice to Purchaser, or to ternunate this Contract by written notice to Purchaser, in which event the parties shall have no further obligations under this Contract. i. Developer shall have received an irrevocable commitment from its lender to fund a construction loan in an amount sufficient to construct the MOB and parking facilities on the Parcel and the Municipal Center Parcel. ii. Developer, on the one hand, and WMC and SC, on the other hand, shall have executed bona fide purchase and sale agreements for condominium units in the MOB. iii. Developer shall have obtained all necessary approvals to obtain building permits for the MOB. iv. Seller and Developer shall have executed a Development Management Agreement. v. Seller and WMC shall have executed an agreement for relocation and operation of the helipad. vi. Seller and Developer shall have executed the Escrow Agreement (TOV Project Costs) pursuant to Section 2 hereof. 9. Ctosin . a. Date. The closing of the sale of the Property from Seller to Purchaser (the "Closing") shall occur simultaneously with the closing of the anticipated construction loan to be extended to Developer. 'The date and time of Closing shall be mutually agreed upon by Seller, Purchaser and Developer's lender. At this time, the projected Closing is April 15, 2013, which Seller and Purchaser understand is an estimate only and shall change based upon the conditions and contingencies set forth herein. Nevertheless, Purchaser shall provide to Seller a written "Notice of Closing" at least thirty (30) days 10 aiz�✓1ou Q: I USE'RSI VA/LI MOBIPSA-F// AL.DOC prior to any scheduled closing to allow Seller to prepare for closing and vacate the Property. b. Seller to Deliver. At the Closing, Seller shall furnish and deliver to the Title Company for delivery to Purchaser, at Seller's expense (except as otherwise provided in Section 9 below), the following: i. A Special Warranty Deed (the form of which is attached hereto as Exhibit C) duly executed and acknowledged by Seller, dated as of the Closing, subject only to the Permitted Exceptions. ii. An assignment and conveyance to Purchaser of all Offsite Easements. iii. An Owner's Policy covering the Property issued by the Title Company in accordance with the terms of the Title Commitment, containing no exceptions other than the Permitted Exceptions, with such endorsements as may be required by Purchaser. iv. A Non-foreign Certification signed by the Seller under penalties of Pe�J�Y• v. A Seller's closing statement in form prepazed by the Title Company, duly executed by Seller. vi. Any transfer tax or similar forms, affidavits, certifications and agreements which may be required in connecrion with the conveyance of the Property to Purchaser. vii. The executed REA, Development Management Agreement, and Escrow Agreement (TOV Project Costs). viii. Such other documents required to be executed by Selier pursuant to this Contract or as may be reasonably necessary or appropriate to effect the consumraation of the transactions which aze the subject of this Contract, including, without limitation, any mechanics' liens, parties in possession and gap affidavits required by the Title Company. ix. Such instruments or documents as are necessary, or reasonably required by Purchaser or the Title Company to evidence the status and capacity of Seller and the authority of the person or persons who are executing the various documents on behalf of Seller in connecrion with the purchase and sale transaction contemplated hereby. c. Purchaser to Deliver. At the Closing, Purchaser shall deliver to the Title ; Company for delivery to Seller, at Purchaser's expense, the following: � i. The Purchase Price in immediately available funds. f E 11 � �iz�zoia Q: I USERSI VA/L I MOBIPSA-FI/ AL.DOC ii. A Purchaser's closing statement in form prepared by the Title Company, duly executed by Purchaser. iii. The REA, executed and acknowledged by Purchaser. iv. Such instruments or documents as are necessary, or reasonably required by Seller or the Title Company to evidence the authority of Purchaser to consummate the purchase and sale transacrion contemplated hereby and to execute and deliver the closing documents to be delivered by Purchaser. d. Expenses of Closing. i. Seller Closing Costs. At Closing, Seller shall pay: (i) fifly percent (50%) of the fees charged by the Title Company to coordinate the Closing; (ii) the premium for the Owner's Title Policy, including the cost of extended coverage for the deletion of the standard exceptions under the Owner's Title Policy; and (iii) all transfer taxes, documentary stamps, intangible taxes and surtaxes due in connection with the transfer of the Property to Purchaser if applicable. ii. Purchaser Closin Costs. At Closing, Purchaser shall pay: (i) fifty percent (50%) of any fees chazged by the Title Company to coordinate the Closing; (ii) except as otherwise set forth in Section 9(d)(i), the cost of any endorsements to the Owner's Title Policy requested by Purchaser or its lender, if any; and (iii) all recording charges and other similar fees due in connecrion with the transfer of the Properiy to Purchaser and the recording of the transfer documents described above. iii. Other Costs. Except as otherwise expressly provided herein, Seller and Purchaser shall each be responsible for paying the attorneys' fees that it incurs in connection with the transaction contemplated by this Agreement. In addition, Purchaser shall pay, prior to delinquency, ail expenses incurred by Purchaser in connection with its due diligence with respect to the Property (including, but not limited to, the cost of physical inspections, surveys, environmental assessments, zoning and permits reviews), and any financing obtained by Purchaser in connection with its acquisition of the Properiy. e. Possession of Propertv. At Closing, Seller shall deliver to Purchaser and Purchaser shall be entitled to take possession of the Property. 10. Casualtv or Condemnallon Prior to Closia�. If at any time prior to the Closing any portion of the Property is destroyed or damaged by fire or any other casualty, or in the event a taking by condemnation, eminent domain or similar proceedings or a conveyance in lieu thereof is commenced or threatened with respect to any portion of the Property, Seller shall give notice thereof to Purchaser and Purchaser shall thereupon have the option to terminate this Contract upon written notice to Seller prior to Closing, in which event this Contract shall be rendered null and void and the parties shall have no further obligations or liabilities hereunder. If Purchaser does not exercise its option under this 12 en�ioi2 Q: I USERSIYA/LIMOBIPSA-FI/ AL.DOC Section 10 to terminate this Contract, this Contract shall remain in full force and effect and Seller shall assign or pay to Purchaser at Closing Seller's interest in and to any and all insurance proceeds and condemnation awards. 11. Default and Remedies. a. Purchaser's Default. If all Conditions Precedent in Section 8 hereof have been satisfied, and Purchaser fails to purchase the Parcel &om Seller in accordance with this Contract, and such failure remains uncured for a period of thirty (30) days following written notice thereof from Seller to Purchaser, then Seller may elect, as Seller's sole remedy, to terminate the Contract and recover from Purchaser Seller's actual direct third- party out-of-pocket costs related to this Contract up to the date of default, or the amount of TWO MILLION AND NO/100 DOLLARS ($2,000,000.00), whichever is less. Seller expressly waives the remedies of specific performance and additional damages. b. Seller's Default. If all Conditions Precedent in Section 8 hereof have been satisfied, and Seller fails to deliver the Pazcel to Purchaser in accordance with this Contract, and such failure remains uncured for a period of thirty (30) days following written notice thereof from Purchaser to Seller, then Purchaser may elect, as Purchaser's sole remedy, to terminate the Contract and recover from Seller Purchaser's actual direct third-party out-of-pocket costs related to this Contract up to the date of default, or the amount of TWO MILLION AND N0/100 DOLLARS ($2,000,000.00), whichever is less. Purchaser expressly waives the remedies of specific performance and additional damages. 12. Real Estate Brokera¢e. Purchaser and Seller each represent and warrant to the other that no agent, broker, or fmder has been engaged by, or otherwise acted for, it in connection with this Contract. 13. Miscellaneous. a. Develonment Matters. i. Relocation of Municipal Services. Seller will be solely responsible for any required relocation of governmental functions from the Parcel, and for the payment of all costs and expenses related thereto ii. Processing Assistance. Seller agrees to act as applicant on all Colorado Department of Transportation ("CDOT") applications required in connection with the project, and will act diligently to facilitate, as necessary, all interactions with CDOT. b. Notices. All notices, requests and other communications under this Contract shall be in writing and shall be delivered by hand delivery or overnight delivery service, by facsimile, by electronic mail or by certified mail, retum receipt requested, addressed as follows: 13 4/16/10/2 Q: I USERSI VAIL IMOBIPSA-F!J AL.DOC If intended for Seller: The Town of Vail 75 S. Frontage Road Vail, CO 81657 Telephone: 970-479-2100 Email: szemler[a�,vail o� v.com Attn: Mr. Stan Zemler, Town Manager with a copy to: J. Matthew Mire, Esq. Hayes, Phillips, Hoffmann & Carberry, P.C. P.O. Box 2616 Vail, CO 81658 Telephone: 970-479-2100 Email: jmmC�a,hnhclaw.com If intended for Purchaser: Vail Valley Medical Center 181 West Meadow Drive Vail, CO 81657 Telephone: 970-477-5187 Email: kirchnerna.wmc.com Attn: Doris J. Kirchner, President and CEO And: The Steadman Clinic, PLLC 181 West Meadow Drive, Suite 400 Vail, CO 81657 Telephone: 970-476-1100 Email: steadmanlCa�steadmanclinic.com Attn: Lyon F. Steadman with a copy to: Donald R. Auten, Esq. Duane Morris LLP 30 South 17�' Street Philadelphia, PA 19103-4196 Telephone: 215-979-1969 Email: Autenna.duanemorris.com with a copy to: Messner & Reeves, LLC 1430 Wynkoop Street, Suite 300 Denver, Colorado 80202 Attn: Torben Welch, Esq. Telephone: 303-623-1800 Email: twelch(�a,messner.com or at such other address, and to the attention of such other person, as the parties shall give notice as herein provided. All such notices, requests and other communications shall be deemed to have been sufficiently given for all purposes hereof: (i) upon receipt at such address if delivered in person or by ovemight delivery, (ii) ugon confumed tiansmission 14 ana��o�i Q: I USERSI VAILI MOBIPSA-F!/ AL.DOC if delivered by facsimile or electronic mail, or (iii) if mailed, upon deposit of both the original and any required copies in a post office or official depository of the United States Postal Service. c. Entire Agreement: Modifications. This Contract embodies and constitutes the entire understanding between the parties with respect to the transactions contemplated herein, and all prior or contemporaneous agreements, understandings, representations and statements (oral or written) are merged into this Contract. Neither this Contract nor any provision hereof may be waived, modified, amended, discharged or terminated except by an instrument in writing signed by the party against whom the enforcement of such waiver, modification, amendment, discharge or terminarion is sought, and then only to the extent set forth in such instrument. d. Applicable Law. THIS CONTRACT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO. e. Captions. The captions in this Contract are inserted for convenience of reference only and in no way define, describe, or 1'unit the scope or intent of this Contract or any of the provisions hereof. f. Bindin¢ Effect. This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns. This Contract may not be assigned by Seller without the consent of Purchaser. This Contract and Purchaser's rights hereunder may not be assigned by Purchaser without the consent of Seller. This Contract is for the sole benefit of Seller, Purchaser, and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns and no third party is intended to be a beneficiary of this Contract. g. Time is of the Essence. With respect to all provisions of this Contract, time is of the essence. However, if the Closing or the final date of any period which is set out in any provision of this Contract falls on a Saturday, Sunday or legal holiday under the laws of the United States or the State of Colorado, then, and in such event, the Closing or such period shall be extended so that the Closing or the last day of such period falls on the next day which is not a Saturday, Sunday or legal holiday. h. Counterpart Execurion. This Contract may be executed in multiple counterparts. A facsimile copy of this Contract bearing the signature of a party hereto shall be sufficient to bind such party to the terms of this Contract. i. Limitation on Purchaser's Liabilitv. Notwithstanding any provision contained in this Contract or any of the documents to be executed by Purchaser at Closing (collecrively, the "Purchase Documents"), the representations, warranties, indemnities, undertakings, covenants and agreements of Purchaser (collectively, "Purchaser's Undertakings") under the Purchase Documents shall not constitute personal obligations of the officers, directors, employees, agents, trustees, partners (direct or indirect), 15 4/26/1011 Q: I USERSI Vi11LIMOBIPSA-F// AL.DOC members (direct or indirect), representatives, stockholders or other principals or representatives of Purchaser, and no personal liability or personal responsibility of any sort with respect to any of Purchaser's Undertakings or any alleged breach thereof is assumed by, or shall at any time be asserted or enforceable against any of the officers, directors, employees, agents, trustees, partners, members, representatives, stockholders or other principals or representatives of Purchaser. j. Governmental Immunitv. Except as expressly provided in this Contract, Seller and its o�cers and employees are relying on, and do not waive or intend to waive by any provision of this Contract, the monetary limitations (presently one hundred fifty thousand dollars ($150,000) per person and six hundred thousand dollars ($600,000) per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to Seller and its officers or employees. k. Land Use Applications. All parties to this Contract understand and acknowledge that, when reviewing land use applications, Seller acts in a quasi judicial capacity. Notwithstanding any other provision of this Contract, nothing in this Contract shall constitute an obligation by Seller to make any particular decision on any land use application that may come before Seller relating to the MOB, and nothing in this Contract shall imply that Seller has preyudged any such application. Seller will review all land use applications relaring to the MOB in compliance with the Vail Town Code and other applicable law. 1. Avpropriation. Consistent with Article X, § 20 of the Colorado Constiturion, any financial obligation of Seller not performed during the ciurent fiscal year is subject to annual appropriation, and thus any obligations of Seller hereunder shall extend only to monies currently appropriated and shall not constitute a mandatory charge, requirement, debt or liability beyond the current fiscal yeaz. m. Exhibits. Each of the exhibits attached to this Contract is incorporated herein by reference. EXECUTED by Seller this day of , 2012. SELLER: THE TOWN OF VAIL, COLORADO Stan Zemler, Town Manager 16 4/16/20I1 Q: I USERSIYA/LIMOBIPSA-FI( AL.DOC EXECUTED by Purchaser this day of , 2012. PURCHASER: VAIL MOB, LLC, a Colorado limited liability company By: The Steadman Clinic, Professional LLC, Member By: Name: Title: And By: Vail Clinic, Inc. d/b/a, Vail Valley Medical Center, Member By:_ Name: Title: 17 en�2o�z Q: I USERSI VAILI MOBIPSA-F!/ AL.DOC EXHIBIT A PROPERTY DESCRIPTIOI Property Address: 75 S Frontage Rd Vail, Colorado 81657 County of Eagle, State of Colorado Legal Description: A PART OF THE SOUTHEAST QUARTER OF SECTION 6 TOWNSHIP 5 SOUTH, RANGE 80 WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF EAGLE, STATE OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 6 THENCE NORTH 00 DEGREES 28 MINUTES 16 SECONDS WEST AND ALONG THE EAST LINE OF SAID SOUTHEAST QUARTER 72.75 FEET TO A POINT, SAID POINT BEING I 10.00 FEET NORTHEASTERLY FROM THE SOUTHEASTERLY RIGHT OF WAY LINE OF U.S. HIGHWAY NO. 6 AS MEASURED AT RIGHT ANGLES THERETO; THENCE NORTH 79 DEGREES 46 MINUTES 11 SECONDS WEST AND ALONG A LINE PARALLEL TO SAID SOUTI�ASTERLY RIGHT OF WAY LINE 145.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 16 DEGREES 08 MINUTES 47 SECONDS EAST, 63.50 FEET; THENCE NORTH 72 DEGREES 03 MINUTES 02 SECONDS WEST, 226.70 FEET; THENCE NORTH 68 DEGREES 08 MIIWTE5 34 SECONDS WEST, 201.00 FEET; THENCE NORTH 66 DEGREES 43 MINiJTES 48 SECONDS WEST, 164.39 FEET; THENCE CONTINUING ALONG THE AFORESAID COURSE 238.00 FEET; THENCE SOUTH 25 DEGREES 53 MINUTES 00 SECONDS WEST, 47.79 FEET; THENCE SOUTH 41 DEGREES 24 MINUTES 53 SECONDS EAST, 183.50 FEET TO A POINT OF CURVE; THENCE ALONG A CURVE TO THE LEFT HAVING A RADNS OF 197.40 FEET, A CENTRAL ANGLE OF 30 DEGREES 47 MIMJTES 4 SECONDS, AN ARC DISTANCE OF 106.10 FEET; THENCE SOUTH 72 DEGREES 12 MINUTES 37 SECONDS EAST, 183.50 FEET TO A POINT OF INTERSECTION WITH THE NORTH RIGHT OF WAY LINE OF U.S. HIGHWAY NO. 6 SAID LINE BEING 110.00 FEET NORTHEASTERLY FROM THE SOUTHEASTERLY RIGHT OF WAY LINE OF U.S. HIGHWAY NO. 6 AS MEASURED AT RIGHT ANGLES THERETO; THENCE SOUTH 79 DEGREES 46 MINUTES I1 SECONDS EAST AND ALONG SAID NORTH RIGHT OF WAY LINE 397.56 FEET TO THE TRUE POINT OF BEGINNING, EXCEPTING THEREFROM THAT PORTION OF SAID PROPERTY DESCRIBED IN DEED RECORDED JULY 14, 1971 IN BOOK 221 AT PAGE 6. 18 4/26/2012 Q: I USER51 YA/L I MOBIPSA-FI/ AL.DOC EXHIBIT B LIST OF PERMITS CDOT: Lease Agreement and/or Special Use Permit for construction staging and crane boom swings in/over the right-of-way Lease Agreement and/or Special Use Permit for Soil Nail Retention in the right-of-way Lease Agreement and/or Special Use Permit and/or Utility Permit for permanent dewatering in the right-of-way Lease Agreement and/or Special Use Permit for private pedestrian bridge over frontage road Special Use Permit for potholing on the Frontage Road Utility Permits for utility construction and operation Special Use and/or Landscaping Permit for landscaping in/near the right-of-way Access Permits to Frontage Road for driveways Town of Vail: Approved Development Plan Pursuant to "Chapter 9- Article C- General Use (GU) District" of the Vail Town Code Town of Vail Building Permit pursuant "Title 10 - Building Regulations" of the Vail Town Code Town of Vail Demolirion Permit. 19 �iz�✓zoiz Q: I USERSIVAILIMOBIPSA-F// AL.DOC EXHIBIT C FORM OF SPECIAL WARRAI TY DEED SPECIAL WARRAj TY DEED THIS DEED, Made this day of , 20_, between TI-� TOWN OF VAIL, a Coloiado home rule municipality ("Grantor") and VAIL MOB, LLC, a Colorado limited liability company whose principal of�ice address is 181 West Meadow Drive, Vail, Colorado 81657 ("Grantee"): WIT� ESSETH, That the Grantor, for and in consideration of the sum of FIVE MILLION AND NO/100THS DOLLARS ($5,000,000.00), the receipt and suiiiciency of which is hereby acknowledged, have granted, bargained, sold and conveyed, and by these presents do gractt, bargain, sell, convey, and conform, unto the Grantee and his heirs, successors and assigns forever, all the real property, together with improvements, if any, situate, lying and being in Eagle County, State of Colorado, A PART OF THE SOUTHEAST QUARTER OF SECTION 6 TOWNSHIP 5 SOUTH, RANGE 80 WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF EAGLE, STATE OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 6 THENCE NORTH 00 DEGREES 28 MINUTES 16 SECONDS WEST AND ALONG THE EAST LINE OF SAID SOUTHEAST QiJARTER 72.75 FEET TO A POINT, SAID POINT BEING 110.00 FEET NORTHEASTERLY FROM THE SOUTHEASTERLY RIGHT OF WAY LINE OF U.S. HIGHWAY NO. 6 AS MEASURED AT RIGHT ANGLES THERETO; THENCE NORTH 79 DEGREES 46 MINUTES 11 SECONDS WEST AND ALONG A LINE PARALLEL TO SAID SOUTHEASTERLY RIGHT OF WAY LINE 145.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 16 DEGREES 08 MINUTES 47 SECONDS EAST, 63.50 FEET; THENCE NORTH 72 DEGREES 03 MINUTES 02 SECONDS WEST, 226.70 FEET; THENCE NORTH 68 DEGREES O8 MINUTES 34 SECONDS WEST, 201.00 FEET; THENCE NORTH 66 DEGREES 43 MINUTES 48 SECONDS WEST, 164.39 FEET; THENCE CONTINUING ALONG THE AFORESAID COURSE 238.00 FEET; THENCE SOUTH 25 DEGREES 53 MINUTES 00 SECONDS WEST, 47.79 FEET; THENCE SOUTH 41 DEGREES 24 MINUTES 53 SECONDS EAST, 183.50 FEET TO A POINT OF CURVE; THENCE ALONG A CURVE TO THE LEFT HAVING A RADNS OF 197.40 FEET, A CENTRAL ANGLE OF 30 DEGREES 47 MINUTES 4 SECONDS, AN ARC DISTANCE OF 106.10 FEET; THENCE SOUTH 72 DEGREES 12 MINUTES 37 SECONDS EAST, 183.50 FEET TO A POINT OF INTERSECTION WITH THE NORTH RIGHT OF WAY LINE OF U.S. HIGHWAY NO. 6 SAID LINE BEING 110.00 FEET NORTHEASTERLY FROM THE SOUTHEASTERLY RIGHT OF WAY L1NE OF U.S. HIGHWAY NO. 6 AS MEASURED AT RIGHT ANGLES THERETO; THENCE SOUTH 79 DEGREES 46 MINUTES 11 SECONDS EAST AND ALONG SAID NORTH RIGHT OF WAY LINE 397.56 FEET TO THE TRUE POINT OF BEGINNING, 20 4/26/1012 Q:I USERSI Vd/LIMOBV'SA-FI/ AL.DOC EXCEPTING THEREFROM THAT PORTION OF SAID PROPERTY DESCRIBED IN DEED RECORDED JULY 14, 1971 IN BOOK 221 AT PAGE 6. also lmown by street and number as: 75 S. Frontage Road, Vail, Colorado TOGETHER with all and singular the hereditaments and appurtenances thereto belonging, or in anywise appertaining, the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right ritle, interest, claim and demand whatsoever of the Grantors, either in law or equiry, or, in and to the above bargained premises, with the hereditaments and appurtenances subject• however, to those matters described on EXHIBIT A attached hereto and made a part hereof (collectively, the "Permitted Exceptions"). TO HAVE AI D TO HOLD the said premises above bazgained and described with the appurtenances, unto the Grantee, his successors and assigns forever. The Grantors, for themselves, their successors and assigns, do covenant and agree that they shall and will WARRANT AND FOREVER DEFEND the good and mazketable title of above-bazgained premises and the quiet and peaceable possession of the Cnantee, his heirs, successors and assigns, against all and every person or persons claiming the whole or any party thereof, by, through or under the Grantors, except for: general taxes and assessments for the year 20_ and subsequent years; subject to all easements, reservarions, restrictions, covenants and rights of way of record, if any; and addirionally excepting the Permitted Exceptions. I� WI'I'� E55 WHEREOF, The Grantor has executed this Special Watranty Deed the day and yeaz first above written. GRANTOR: THE TOWN OF VAIL, a Colorado home rule municipality sy: Name: Its: STATE OF COLORADO ) )ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of 20_, by whose title is of the Town of Vail, a Colorado home rule municipality. Witness my hand and official seal. My commission expires: Notary Public 21 4/I6/2012 Q: I USERSI VAILIMOBIPSA-FIJ AL.DOC PURCHASE AND SALE AGREEMENT (75 South Frontage Road, Vail, Colorado) THIS PURCHASE AND SALE AGREEMENT (the "Contract"), dated as of the last date of the signatures of the parties set forth below (the "Effective Date"), is by and between THE TOWN OF VAIL, a Colorado home rule municipality ("Seller"), and VAIL MOB, LLC, a Colorado limited liability company ("Purchaser"). RECITALS A. Seller owns certain real property of approximately fifty-seven one hundredths (0.57) acres more or less, situate, lying and being in the Town of Vail, Eagle County, State of Colorado, currently known as 75 South Frontage Road, Vail, Colorado (the "Parcel") and more particularly described in Exhibit A attached hereto; B. Seller desires to redevelop the adjoining parcel (the "Municipal Center Pazcel") in preparation for the construction of a new municipal building, and has agreed with the Vail Clinic, Inc., d/b/a Vail Valley Medical Center ("VVMC"), The Steadman Clinic, Professional LLC ("SC"), Triumph Vail MOB, LLC, a Delaware limited liability company ("Developer") and Purchaser to cooperate in, and to share certain costs of, a project (the "Project") benefiting both the Municipal Center Parcel and the Parcel, and the preparation by Developer of a building pad site on the Municipal Center Parcel; C. VVMC, SC, Developer and Purchaser propose to construct on the Parcel a medical office building of approximately 56,000 gross square feet (the "MOB"), with a sky bridge connecting the MOB to the Vail Valley Medical Center, and with underground parking for use by both the MOB and the new municipal building to be located on the Municipal Center Parcel, comprising not less than two hundred (200) surface and underground parking spaces, or such greater number of parking spaces as may be required by zoning requirements (the "Intended Use"); and D. To allow for the Project, Seller desires to sell the Parcel to Purchaser, and Purchaser desires to purchase the Parcel from Seller, in accordance with the terms and conditions herein. NOW, THEREFORE, in consideration of the mutual covenants and agreement herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Contract of Purchase and Sale. a. Seller hereby agrees to sell and convey to Purchaser fee simple title to the Parcel, together with all buildings, fixtures and improvements located thereon all benefits, privileges, tenements, hereditaments, rights and appurtenances thereto in anywise belonging to Seller, including, but not limited to, all permits, authorizations, governmental entitlements, licenses, approvals and easements which benefit the Parcel, all right, title and interest of Seller, if any, in and to all strips or gores of land, if any, 1 si2i2o�z C: I USERSILDONALDSOMAPPDATAILOCALIMICROSOF71 WlNDOWSITEMPORARYlNTERNET FILESI CONTENT. O U7ZOOKI4R U7XJXPI PSA-FINAL-3. DOC between the real property and abutting properties, all right, title and interest of Seller, if any, in and to any and all oil, gas and minerals lying under, in, on or about or constituting a part of the real property, regardless of whether or not the minerals are considered part of the surface estate or part of the mineral estate, and all water, sewer and other utility capacity commitments and/or credits which pertain to or inure to the benefit of such real property (the foregoing is collectively referred to herein as the "Property"), and Purchaser agrees to purchase the Property at the Purchase Price and upon the terms set forth herein. b. Seller and Purchaser acknowledge that the Property is being sold "as is", and other than the representations and warranties set forth in Section 5 hereof, Seller makes no warranties as to the condition of the Property or its suitability for the uses intended by Purchaser, and it is Purchaser's sole duty to make all of the following inspections, investigations and tests of the Property: i. Inspecting, surveying, engineering, structural, mechanical, architectural and environmental studies, assessments and audits (including a Phase I Environmental Assessment), soil testing, soil compaction and grading elevations, testing for the presence of naturally occurring radioactive materials, and otherwise determining the condition of the Property and prior uses of the Property; ii. Determining that utility services, including, without limitation, water, storm sewer, sanitary sewer, gas, electricity and telephone are or can be made available to serve the Intended Use of the Property and that service lines can be extended to and within the Property; ii. Evaluating all storm drainage requirements, and, if applicable, any Environmental Protection Agency or other federal or state health or environmental requirements or approvals; and ii. Reviewing the title and status of the Property to determine if title is merchantable. 2. Purchase Price. a. The purchase price (the "Purchase Price") for the Property shall be FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00). The Purchase Price shall be payable in cash at Closing. b. At Closing, Seller shall deliver an amount equal to the lesser of FNE MILLION DOLLARS AND NO/100 DOLLARS ($5,000,000) or the amount of Seller's pro-rata share of the actual Project costs as more particularly described in the Development Management Agreement to be executed between Seller and Developer (the "TOV Project Costs") in escrow to Title Company, to be held and disbursed strictly in accordance with the provisions of an escrow agreement to be negotiated between Developer and Purchaser (the "Escrow Agreement (TOV Project Costs)"). 2 S/2/1012 C: I USERSILDONALDSOMAPPDAT,9ILOCALIMICROSOF7IWINDOWSITEMPORARYINTERNET FILESI CONTENT.OUTLOOKI4RU7XJXPIPSA-FINAL-3.DOC 3. Due Diligence Information, Title Commitment and Survev. a. Previously Delivered Title Report and Survey. Purchaser hereby acknowledges receipt of a title report from Land Title Guarantee Company, dated December 16, 2011 (the "Title Report"). Purchaser hereby additionally acknowledges receipt of an ALTA/ACSM �Land Title Survey of the Property dated December 27, 2011, from Eagle Valley Surveying, Inc. ("Survey A"). b. Delivery of Documents. No later than five (5) days after the Effective Date, Seller shall deliver or cause to be delivered to Purchaser, at Seller's sole cost and expense, any and all documents relating to the Property in Seller's custody and control. c. Title Commitment. Within ten (10) days following the Effective Date, Seller shall cause to be delivered to Purchaser: (i) a current ALTA Commitment for Owner's Policy of Title Insurance (hereinafter referred to as the "Title Commitment") issued by Land Title Guarantee Company on behalf of an underwriter acceptable to Purchaser (the "Title Company"), whereby said Title Company commits to issue an Owner's Policy of Title Insurance ("Owner's Policy") in the amount of the Purchase Price written in accordance with this Contract; and (ii) copies of all documents shown as exceptions on the Title Commitment (the "Exception Documents"). The Title Commitment shall describe the Property; shall list Purchaser as the prospective named insured; shall show as the policy amount the Purchase Price; shall contain the commitment of the Title Company to insure Purchaser's fee simple interest in the Property upon the Closing; shall commit to delete or insure over the so-called "standard exceptions" (at Seller's expense) which relate to: (i) parties in possession; (ii) unrecorded easements; (iii) survey matters; (iv) any unrecorded mechanic's liens; (v) gap period (effective date of commitment to date deed is recorded); and (6) unpaid taxes, assessments and unredeemed tax sales prior to the year of Closing. d. Objections. Purchaser shall have a period of thirty (30) days from receipt of the last of the Title Commitment and Exception Documents (the "Document Objection Period") in which to review such items and deliver to Seller, in writing, such objections as Purchaser may have to anything contained or set forth therein ("Purchaser's Objection"). Any items shown on Survey A or the Title Commitment to which Purchaser does not object during the Document Objection Period shall be deemed to be approved by Purchaser and shall be referred to as the "Permitted Exceptions" for purposes of this Contract. Seller shall use its best efforts to remedy or cure Purchaser's objections during the fifteen (15) day period following Seller's receipt thereof (the "Cure Period") and provide to Purchaser prior to the close of the Cure Period a written response to Purchaser's Objection detailing the steps Seller has taken to cure any such objections, if such objections were cured, or a statement detailing why Seller does not intend to cure any such objections. Purchaser shall have ten (10) days after the expiration of the Cure Period to either: (i) terminate this Contract by written notice to Seller; or (ii) proceed to Closing hereunder, with those items that Seller has elected not to cure being deemed approved by Purchaser and constituting a part of the Permitted Exceptions. Notwithstanding the foregoing: (a) the standard preprinted exceptions set forth in the 3 S/2/2012 C: I USERSILDONALDSOMAPPDATAILOCALIMICROSOF71 WINDOWSITEMPORARYINTERNET FfLESI CONTENT.OUTLDOK14RU7XJXPIPSA-FINAL-3.DOC Title Commitment shall not constitute Permitted Exceptions for purposes hereof; (b) all matters reflected on Schedule B-1 of the Title Commitment, liens and items which are designated by the Title Company as matters to be satisfied prior to Closing shall not constitute Permitted Exceptions and shall be discharged and satisfied by Seller prior to Closing; and (c) if any exceptions to title are created after the date hereof by Seller, Seller shall, if objected to by Purchaser, cause same to be released and discharged, and same shall not constitute a Permitted Exception for purposes hereof. To the extent Seller has not complied with its obligations under the preceding sentence as of the Closing, Purchaser shall be entitled to terminate this Contract. e. Additional Exceptions. In the event that at any time following delivery of the Title Commitment or Exception Documents, but prior to Closing, any changes (other than the deletion or elimination of any item as to which Purchaser has made an objection) shall occur in the Title Commitment or Exception Documents, in addition to other remedies permitted pursuant to this Contract, Purchaser shall have the right to terminate this Contract. f. Undated Title Commitment. Thirty (30) days prior to Closing, Seller shall cause to be delivered to Purchaser an updated Title Commihnent. The terms and conditions of Section 3.e above shall apply to Purchaser's review of this updated Title Commitrnent. 4. Insaection Period. During the term of this Contract, Purchaser shall have the right at any time to enter onto the Property for any purpose, including conducting such audits, inspections, or investigations thereon as Purchaser may deem appropriate, in Purchaser's independent discretion. The cost of the inspections undertaken by Purchaser pursuant to this Contract shall be borne solely by Purchaser. Seller acknowledges and agrees that, by reason of the unified development contemplated for the Property and the Municipal Center Parcel, Purchaser shall also have the right to enter upon, test, study, survey, inspect, and conduct such engineering, architectural, environmental, soil, economic and other tests on the Municipal Center Parcel as Purchaser shall deem necessary or desirable. On or prior to the expiration of one hundred twenty (120) days following the Effective Date (the period ending on such date being referred to herein as the "Inspection Period"), Purchaser shall be entitled, for any reason in Purchaser's sole discretion, to submit to Seller written notice terminating this Contract or, if Purchaser elects, to submit a notice to correct with a description of those unsatisfactory conditions at the Property which Purchaser requires Seller to remedy. If Purchaser delivers a notice to correct, Seller shall have thirty (30) days to submit to Purchaser a response to the notice to correct, informing Purchaser of Seller's intent to either remedy such conditions or leave such conditions in place. Purchaser shall have ten (10) days after receipt of Seller's response to either accept Seller's response and waive any such unsatisfactory conditions that Seller has elected not to remedy or terminate the Contract. If Purchaser fails in either scenario referenced above to submit written notice of its intent to terminate in the applicable time period, Purchaser shall be deemed to have waived its right to terminate the Contract under this Section 4. 4 siaao�z C: I USERSILDONALDSOMAPPDATAILOCALIMICROSOF71 WINDOWSITEMPORARY INTERNET FILESI CONTEN7:OUTLOOKI4RU7XJXPIPSA-FINAL-3.DOC 5. Renresentations and Warranties. a. Seller represents and warrants to Purchaser as follows as of the date hereof and shall such representations and warranties shall be deemed remade as of the Closing: i. Seller has and will convey to Purchaser at Closing, good and marketable title to the Property, free from all liens and encumbrances, and otherwise subject only to the Permitted Exceptions. ii. There will be, as of the Closing no parties in possession of any portion of the Property as lessees, tenants at sufferance or trespassers. iii. There is no pending or, to Seller's current knowledge, threatened condemnation or similar proceeding or special assessment (inclusive of assessments for street widening, repair or improvement) affecting the Property. iv. There is no pending or, to Seller's current knowledge, threatened litigation or administrative proceeding affecting Seller's ability to fulfill its obligations under this Contract. v. Seller has not received notice from any governmental authority that the Property is currently not in compliance with or is in violation of any applicable governmental laws, rules or regulations affecting the Property. vi. The execution and delivery of, and Seller's performance under, this Contract are within Seller's powers and have been duly authorized by all requisite actions. The individual who executes and delivers this Contract and all documents to be delivered by Seller to Purchaser hereunder is and shall be duly authorized to do so. This Contract constitutes a binding obligation of Seller enforceable in accordance with its terms. Seller is duly organized, validly existing and in good standing under the laws of the state of its origin. Seller is not prohibited from consummating the transactions contemplated in this Contract by any law, regulation, agreement, instrument, restriction, order or judgment. vii. To the best of Seller's knowledge, there are no attachments, executions, assignments for the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy or under other debtor relief laws contemplated by, pending, or threatened against Seller or the Property that would affect Seller's obligations under this Contract. viii. There are not any outstanding contracts or options to purchase the Property or any portion thereof in favor of any third party. ix. To the best of Seller's knowledge, the Property (including land, surface and subsurface soil, surface water, ground water, and improvements, if any) is free of any waste, debris, or contamination in quantities prohibited by, or that could require remediation under, any applicable law, statute or regulation and the 5 5/2/2012 C: I USERSILDONALDSOMAPPDATAILOCALIMICROSOF71 WlNDOWSITEMPORARYlNTERNET FILESI CONTEN7:OUTLOOK14RU7XJXPIPSA-FINA�3.DOC Property has not been used for the production, storage or disposal of hazardous materials or environmental contaminants. x. To Seller's knowledge, there are no pending proceedings to change or down-zone the existing zoning classifications as to any portion of the Property, and there exists no current threat of the institution or proposed institution of any such action. The Property is not within a"historic district," and contains no structures that have been declared "historic structures" under federal or local law. xi. The Property is adequately served by public or authorized private utility providers, which furnish gas, electricity, telecommunications, water, sewer and drainage facilities. Seller has no responsibility for maintenance of off-site lines, pumps, lift stations, or other facilities. xii. There are no unpaid bills or claims that may give rise to a lien against the Property. b. Purchaser represents and warrants to Seller as follows as of the date hereof and such representations and warranties shall be deemed remade as of the Closing: i. The execution and delivery of, and Purchaser's performance under, this Contract are within Purchaser's powers and have been duly authorized by all requisite actions. The individual who executes and delivers this Contract and all documents to be delivered by Purchaser to Seller hereunder is and shall be duly authorized to do so. T'his Contract constitutes a binding obligation of Purchaser enforceable in accordance with its terms. Purchaser is duly organized, validly existing and in good standing under the laws of the state of its origin. Purchaser is not prohibited from consummating the transactions contemplated in this Contract by any law, regulation, agreement, instrument, restriction, order or judgment. ii. There is no pending or, to Purchaser's knowledge, threatened litigation or administrative proceeding affecting Purchaser. iii. There are no attachments, executions, assignments for the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy or under other debtor relief laws contemplated by, pending, or threatened against Purchaser. iv. Purchaser is currently in compliance with, and shall at all times during the term of this Contract (including any extension thereo fl remain in compliance with, the regulations of the Office of Foreign Assets Control ("OFAC") of the Department of the Treasury (including those named on OFAC's Specially Designated Nationals and Blocked Persons List) and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto. 6 5/1/2012 C: I USERSILDONALDSOMAPPDATAILOCALIMlCROSOF71 WINDOWSI TEMPORARYINTERNET FILESI CONTENT.OUTLOOKI4RU7XJXPIPSA-FINAIr3.DOC 6. Covenants and A�reements. a. Seller's Covenants. i. From the Effective Date until Closing, Seller shall not, without Purchaser's prior written consent: (i) make any changes or alterations to the Parcel that would affect Seller's obligations under this Contract; or (ii) negotiate, execute or create any contract or option to purchase, easement, covenant, condition, restriction, lien or encumbrance with respect to the Property or any portion thereof that would affect Seller's obligations under this Contract. To the extent that any Offsite Easements are needed over property owned by Seller, Seller shall grant such Offsite Easements to Purchaser at Closing. ii. Seller shall promptly furnish to Purchaser copies of any and all notices that Seller receives from federal, state or local governmental authorities having jurisdiction over the Property. iii. Seller shall maintain in force a policy or policies of insurance with respect to the Property in amounts not less than is currently in force. iv. Seller shall promptly deliver to Purchaser copies of all notices received by Seller affecting the Property or the transactions contemplated hereby, including without limitation, notices of any pending zoning changes or amendments, notices of violations affecting the Property and notices of pending or threatened condemnation of the Property or any roads adjacent thereto. b. Purchaser's Anplications. Purchaser or its authorized agents, contractors, assignees or designees shall be entitled to contact and make applications to any and all applicable local, municipal, county, state and federal agencies for any changes, authorizations and approvals which Purchaser may deem appropriate, in Purchaser's sole and absolute discretion, in connection with Purchaser's acquisition and development of the Property for the Intended Use and/or to satisfy any condition precedent to Purchaser's obligations under this Contract. Seller agrees to cooperate with Purchaser in connection therewith, shall execute and deliver to Purchaser, and if applicable, cause to be recorded in the official records of the County in which the Parcel is located, within three (3) days following receipt of a request therefor, such applications, consents and other documents which may be required in connection therewith, and shall support and not oppose Purchaser in connection with Purchaser's applications and efforts to obtain any changes, authorizations and approvals required to permit Purchaser to develop the Property for the Intended Use and/or to satisfy any such condition precedent, subject to Section 13(k) hereof. 7. Auurovals. a. A�provals. During the period ending upon the expiration of one hundred fifty (150) days after the expiration of the Inspection Period (the period ending upon such date, as extended, being referred to herein as the "Approval Period"), if Purchaser has not 7 sni2o�z C: I USERSILDONALDSOMAPPDATAILOCALIMICROSOF71 WlNDOWSITEMPORARYINTERNET FILESI CONTEN7: 0 UTLOOKI4R U7XJXPI PSA-FlNAL-3. DOC sooner terminated this Contract, Purchaser shall make application to the applicable governmental authorities for a change in zoning and any and all approvals, licenses and permits which are required to permit Purchaser to construct and operate a building on the Property in accordance with its Intended Use, together with parking, and any other related amenities in accordance with Purchaser's plans and specifications therefor, as determined by Purchaser in Purchaser's sole and absolute discretion (collectively, the "Approvals"). If Purchaser has not terminated this Contract prior to the expiration of the Inspection Period, Purchaser shall use good faith efforts to obtain the Approvals. Purchaser shall be responsible for paying all costs incurred by Purchaser in connection with the Approvals. The Approvals shall not be deemed to be final until such time as the Approvals have been adopted by all applicable actions of all applicable governmental authorities subject to no conditions, exceptions or requirements which are not acceptable to Purchaser, in Purchaser's sole and absolute discretion, all time periods for appeal shall have expired and no appeal shall have been noticed or filed in connection therewith (or if an appeal has been filed, such appeal has been dismissed or resolved in favor of the Approvals), and the Approvals shall be unappealable (the date on which all of the above have occurred is referred to herein as the "Approval Date"). If the Approvals are at any time denied or disapproved, or the Approval Date has not occurred prior to the date of expiration of the Approval Period, Purchaser shall be entitled to terminate this Contract, in which event the parties shall have no further obligations hereunder, or Purchaser may proceed to Closing hereunder. b. Extension of Approval Period. If the Approval Date has not occurred at least five (5) days prior to the expiration of the Approval Period, as extended, Purchaser shall be entitled to extend the Approval Period for ninety (90) days, upon delivery of an extension notice to Seller and by depositing FNE THOUSAND DOLLARS AND NO/100 ($5,000.00) as earnest money into an escrow account with the Title Company on or prior to the then applicable date of expiration of the Approval Period, which amount shall be non-refundable to Purchaser except in the event of a Seller Default as described herein, but which shall be credited toward the Purchase Price. 8. Conditions Precedent. a. The following shall each be conditions precedent to Purchaser's obligation to purchase the Property. If any one or more of such conditions precedent is not, or in the reasonable opinion of Purchaser will not be, satisfied at or prior to Closing, in addition to other remedies available to Purchaser under this Contract, Purchaser shall be entitled to waive any one or more of such conditions precedent by written notice to Seller, or to terminate this Contract by written notice to Seller, in which event the parties shall have no further obligations under this Contract. i. Purchaser shall have received all necessary approvals and consents with respect to Purchaser's plans and specifications, site plans and related materials, including engineering plans, plats, final development plans and profiles, and any off-site infrastructure plans, including, without limitation, plans for any required traffic and road improvements, for water and sewer service and storm water 8 S/2/1012 C: I USERSILDONALDSOMAPPDATAILOCALIMICROSOF71 WINDOWSI TEMPORARYINTERNET FILESI CONTEN7: O UTLOOKI4R U7XJXPI PSA-FINAL-3. DOC management for the Property, information which are required pursuant to the provisions of any declaration or restrictions affecting the Property, and permits identified on the attached Exhibit B, that are necessary for Purchaser to be entitled to proceed with development of the Property (collectively, the "Approved Plans"). ii. No lawsuit, appeal or other action shall have been filed by any party, directly or indirectly, involving the Property, including without limitation, any such lawsuit, appeal or other action for the purpose of challenging, contesting or seeking to prohibit, restrain, enjoin or delay any change in zoning or restrictive covenants required to permit development of a medical office building on the Parcel in accordance with Purchaser's plans, or Purchaser's development of the Parcel for such purposes. iii. T'here shall exist no moratorium or other action or directive by any governmental authority which would prohibit, restrain, enjoin or delay Purchaser from constructing, or delay Purchaser in connection with the construction of, a medical office building in accordance with Purchaser's plans. iv. No adverse environmental or geological condition shall exist with respect to the Property. v. No action shall have been taken by the U.S. Army Corps of Engineers or other applicable governmental authority with respect to the Property or any other property which would have the effect of reclassifying or reconfiguring the size or location of any wetland or flood plain area on the Property. vi. The Title Company shall have irrevocably committed and agreed to issue to Purchaser an Owner's Policy, insuring Purchaser's title in and to the Property free and clear of liens, claims and encumbrances other than the Permitted Exceptions. vii. Subject to the provisions of Section 13.c hereof, each of the representations and warranties of Seller contained herein shall be true in all material respects as if made as of the date of Closing, and Seller shall have complied with and not be in material breach of any of the covenants contained in Section 6(a) hereof. viii. All offsite easements necessary for the development and use of the Parcel, including, without limitation, access and utility easements for water, sanitary sewer, stormwater management and drainage (including any such easements as may be required from Seller in its capacity as owner of the Municipal Center Parcel), and any such access and temporary construction easements on and across the Property as shall be necessary for construction of the project shall have been obtained and recorded among the land records. 9 si2i2o�2 C.• I USERSILDONALDSOIVIAPPDATAILOCALIMlCROSOF71 WINDOWSI TEMPORARYlNTERNET FlLESI CONTENT.OUTLOOK14RU7XJXPI PSA-FINAL-3.DOC ix. Developer shall have received an irrevocable commitment from its lender to fund a construction loan in an amount sufficient to construct the MOB and parking facilities on the Parcel and Municipal Center Parcel. x. Seller, Purchaser and Developer have executed a Reciprocal Easement and Operating Agreement (the "REA") regarding the redevelopment of the Parcel and the Municipal Center Parcel, such REA to be recorded against the Parcel and the Municipal Center Parcel. Developer's participation as a party to the REA shall automatically terminate upon termination of its leasehold interest in the Parcel, following the completion of construction. b. B,�er. The following shall each be conditions precedent to Seller's obligation to sell the Property. If any one or more of such conditions precedent is not, or in the reasonable opinion of Seller will not be, satisfied at or prior to Closing, Seller shall be entitled to waive any one or more of such conditions precedent by written notice to Purchaser, or to terminate this Contract by written notice to Purchaser, in which event the parties shall have no further obligations under this Contract. i. Developer shall have received an inevocable commitment from its lender to fund a construction loan in an amount sufficient to construct the MOB and parking facilities on the Parcel and the Municipal Center Parcel. ii. Developer, on the one hand, and WMC and SC, on the other hand, shall have executed bona fide purchase and sale agreements for condominium units in the MOB. iii. Developer shall have obtained all necessary approvals to obtain building permits for the MOB. iv. Seller and Developer shall have executed a Development Management Agreement. v. Seller and WMC shall have executed an agreement for relocation and operation of the helipad. vi. Seller and Developer shall have executed the Escrow Agreement (TOV Project Costs) pursuant to Section 2 hereof. 9. C10SIIIg. a. Date. The closing of the sale of the Property from Seller to Purchaser (the "Closing") shall occur simultaneously with the closing of the anticipated construction loan to be extended to Developer. The date and time of Closing shall be mutually agreed upon by Seller, Purchaser and Developer's lender. At this time, the projected Closing is April 15, 2013, which Seller and Purchaser understand is an estimate only and shall change based upon the conditions and contingencies set forth herein. Nevertheless, Purchaser shall provide to Seller a written "Notice of Closing" at least thirty (30) days 10 S/2/2012 C: I USERSILDONALDSONL9PPDATAILOCALIMlCROSOF71 WINDOWSITEMPORARYlNTERNET FlLESI CONTENT.OUTLOOKI4RU7XJXPIPSA-FINAL-3.DOC prior to any scheduled closing to allow Seller to prepare for closing and vacate the Property. b. Seller to Deliver. At the Closing, Seller shall furnish and deliver to the Title Company for delivery to Purchaser, at Seller's expense (except as otherwise provided in Section 9 below), the following: i. A Special Warranty Deed (the form of which is attached hereto as Exhibit C) duly executed and acknowledged by Seller, dated as of the Closing, subject only to the Permitted Exceptions. ii. An assignment and conveyance to Purchaser of all Offsite Easements. iii. An Owner's Policy covering the Property issued by the Title Company in accordance with the terms of the Title Commitment, containing no exceptions other than the Permitted Exceptions, with such endorsements as may be required by Purchaser. iv. A Non-foreign Certification signed by the Seller under penalties of P�'.1�'• v. A Seller's closing statement in form prepared by the Title Company, duly executed by Seller. vi. Any transfer tax or similar forms, affidavits, certifications and agreements which may be required in connection with the conveyance of the Property to Purchaser. vii. The executed REA, Development Management Agreement, and Escrow Agreement (TOV Project Costs). viii. Such other documents required to be executed by Seller pursuant to this Contract or as may be reasonably necessary or appropriate to effect the consummation of the transactions which are the subject of this Contract, including, without limitation, any mechanics' liens, parties in possession and gap affidavits required by the Title Company. ix. Such instruments or documents as are necessary, or reasonably required by Purchaser or the Title Company to evidence the status and capacity of Seller and the authority of the person or persons who are executing the various documents on behalf of Seller in connection with the purchase and sale transaction contemplated hereby. c. Purchaser to Deliver. At the Closing, Purchaser shall deliver to the Title Company for delivery to Seller, at Purchaser's expense, the following: i. The Purchase Price in immediately available funds. 11 S/2/2011 C: I USERSILDONALDSOMAPPDATAILOCALIMICROSOF71 WINDOWSI TEMPORARYINTERNET FILESI CONTEN7:OUTLOOK14RU7XJXPIPSA-FINAL-3.DOC ii. A Purchaser's closing statement in form prepared by the Title Company, duly executed by Purchaser. iii. The REA, executed and acknowledged by Purchaser. iv. Such instruments or documents as are necessary, or reasonably required by Seller or the Title Company to evidence the authority of Purchaser to consummate the purchase and sale transaction contemplated hereby and to execute and deliver the closing documents to be delivered by Purchaser. d. Expenses of Closing. i. Seller Closing Costs. At Closing, Seller shall pay: (i) fifty percent (50%) of the fees charged by the Title Company to coordinate the Closing; (ii) the premium for the Owner's Title Policy, including the cost of extended coverage for the deletion of the standard exceptions under the Owner's Title Policy; and (iii) all transfer taxes, documentary stamps, intangible taxes and surtaxes due in connection with the transfer of the Property to Purchaser if applicable. ii. Purchaser Closing Costs. At Closing, Purchaser shall pay: (i) fifty percent (50%) of any fees charged by the Title Company to coordinate the Closing; (ii) except as otherwise set forth in Section 9(d)(i), the cost of any endorsements to the Owner's Title Policy requested by Purchaser or its lender, if any; and (iii) all recording charges and other similar fees due in connection with the transfer of the Property to Purchaser and the recording of the transfer documents described above. iii. Other Costs. Except as otherwise expressly provided herein, Seller and Purchaser shall each be responsible for paying the attorneys' fees that it incurs in connection with the transaction contemplated by this Agreement. In addition, Purchaser shall pay, prior to delinquency, all expenses incurred by Purchaser in connection with its due diligence with respect to the Property (including, but not limited to, the cost of physical inspections, surveys, environmental assessments, zoning and permits reviews), and any financing obtained by Purchaser in connection with its acquisition of the Property. e. Possession of Propertv. At Closing, Seller shall deliver to Purchaser and Purchaser shall be entitled to take possession of the Property. 10. Casualtv or Condemnation Prior to Closing. If at any time prior to the Closing any portion of the Property is destroyed or damaged by fire or any other casualty, or in the event a taking by condemnation, eminent domain or similar proceedings or a conveyance in lieu thereof is commenced or threatened with respect to any portion of the Property, Seller shall give notice thereof to Purchaser and Purchaser shall thereupon have the option to terminate this Contract upon written notice to Seller prior to Closing, in which event this Contract shall be rendered null and void and the parties shall have no further obligations or liabilities hereunder. If Purchaser does not exercise its option under this 12 5/1/2012 C: I USERSILDONALDSOMAPPDATAILOCALIMICROSOF7IWINDOWSITEMPORARYINTERNET FILESI CONTEN7:OUTLOOK14RU7XJXPIPSA-FlNAG3.DOC Section 10 to terminate this Contract, this Contract shall remain in full force and effect and Seller shall assign or pay to Purchaser at Closing Seller's interest in and to any and all insurance proceeds and condemnation awards. 11. Default and Remedies. a. Purchaser's Default. In the event of a material default by Purchaser under this Contract, and such default remains uncured for a period of thirty (30) days following written notice thereof from Seller to Purchaser, then Seller may elect, as Seller's sole remedy, to terminate the Contract and recover from Purchaser Seller's actual direct out- of-pocket costs related to this Contract and the Project up to the date of default, or the amount of T'WO MILLION AND NO/100 DOLLARS ($2,000,000.00), whichever is less. Seller expressly waives the remedies of specific performance and additional damages. b. Seller's Default. In the event of a material default by Seller under this Contract, and such default remains uncured for a period of thirty (30) days following written notice thereof from Purchaser to Seller, then Purchaser may elect, as Purchaser's sole remedy, to terminate the Contract and recover from Seller Purchaser's actual direct out-of-pocket costs related to this Contract and the Project up to the date of default, or the amount of TWO MILLION AND NO/100 DOLLARS ($2,000,000.00), whichever is less. Purchaser expressly waives the remedies of specific performance and additional damages. 12. Real Estate Brokerage. Purchaser and Seller each represent and warrant to the other that no agent, broker, or finder has been engaged by, or otherwise acted for, it in connection with this Contract. 13. Miscellaneous. a. Development Matters. i. Relocation of Municipal Services. Seller will be solely responsible for any required relocation of governmental functions from the Pazcel, and for the payment of all costs and expenses related thereto ii. Processing Assistance. Seller agrees to act as applicant on all Colorado Department of Transportation ("CDOT") applications required in connection with the project, and will act diligently to facilitate, as necessary, all interactions with CDOT. b. Notices. All notices, requests and other communications under this Contract shall be in writing and shall be delivered by hand delivery or overnight delivery service, by facsimile, by electronic mail or by certified mail, return receipt requested, addressed as follows: 13 5/2/2012 C: I USERSILDONALDSOMAPPDATAILOCALIMICROSOF71 WlNDOWSITEMPORARYlNTERNET FILESI CONTEN7: 0U7ZOOK14RU7XJXPIPSA-FINAL-3.DOC If intended for Seller: The Town of Vail 75 S. Frontage Road Vail, CO 81657 Telephone: 970-479-2100 Email: szemler ,vail ov.com Attn: Mr. Stan Zemler, Town Manager with a copy to: J. Matthew Mire, Esq. Hayes, Phillips, Hoffmann & Carberry, P.C. P.O. Box 2616 Vail, CO 81658 Telephone: 970-479-2100 Email: jmm(�a,hphclaw.com If intended for Purchaser: Vail Valley Medical Center 181 West Meadow Drive Vail, CO 81657 Telephone: 970-477-5187 Email: kirchner(c�wmc.com Attn: Doris J. Kirchner, President and CEO And: The Steadman Clinic, PLLC 181 West Meadow Drive, Suite 400 Vail, CO 81657 Telephone: 970-476-1100 Email: steadmanlnn,steadmanclinic.com Attn: Lyon F. Steadman with a copy to: Donald R. Auten, Esq. Duane Morris LLP 30 South 17�' Street Philadelphia, PA 19103-4196 Telephone: 215-979-1969 Email: Auten(�a,duanemorris.com with a copy to: Messner & Reeves, LLC 1430 Wynkoop Street, Suite 300 Denver, Colorado 80202 Attn: Torben Welch, Esq. Telephone: 3 03 -623 -1800 Email: twelchna,messner.com or at such other address, and to the attention of such other person, as the parties shall give notice as herein provided. All such notices, requests and other communications shall be deemed to have been sufficiently given for all purposes hereof: (i) upon receipt at such address if delivered in person or by overnight delivery, (ii) upon confirmed transmission 14 siaao�z C: I USERSILDONALDSOMAPPDATAILOCALIMICROSOF71 WINDOWSITEMPORARYINTERNET FILESI CONTEN7: O UTLOOKI4R U7XJXPI PSA-FINA�3. DOC if delivered by facsimile or electronic mail, or (iii) if mailed, upon deposit of both the original and any required copies in a post office or official depository of the United States Postal Service. c. Entire Agreement; Modifications. This Contract embodies and constitutes the entire understanding between the parties with respect to the transactions contemplated herein, and all prior or contemporaneous agreements, understandings, representations and statements (oral or written) are merged into this Contract. Neither this Contract nor any provision hereof may be waived, modified, amended, discharged or terminated except by an instrument in writing signed by the party against whom the enforcement of such waiver, modification, amendment, discharge or termination is sought, and then only to the extent set forth in such instrument. d. A�plicable Law. THIS CONTRACT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO. e. Ca tions. The captions in this Contract are inserted for convenience of reference only and in no way define, describe, or limit the scope or intent of this Contract or any of the provisions hereof. f. Binding Effect. This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns. This Contract may not be assigned by Seller without the consent of Purchaser. This Contract and Purchaser's rights hereunder may not be assigned by Purchaser without the consent of Seller. This Contract is for the sole benefit of Seller, Purchaser, and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns and no third party is intended to be a beneficiary of this Contract. g. Time is of the Essence. With respect to all provisions of this Contract, time is of the essence. However, if the Closing or the final date of any period which is set out in any provision of this Contract falls on a Saturday, Sunday or legal holiday under the laws of the United States or the State of Colorado, then, and in such event, the Closing or such period shall be extended so that the Closing or the last day of such period falls on the next day which is not a Saturday, Sunday or legal holiday. h. Counterpart Execution. This Contract may be executed in multiple counterparts. A facsimile copy of this Contract bearing the signature of a party hereto shall be sufficient to bind such party to the terms of this Contract. i. Limitation on Purchaser's Liabilitv. Notwithstanding any provision contained in this Contract or any of the documents to be executed by Purchaser at Closing (collectively, the "Purchase Documents"), the representations, warranties, indemnities, undertakings, covenants and agreements of Purchaser (collectively, "Purchaser's Undertakings") under the Purchase Documents shall not constitute personal obligations of the officers, directors, employees, agents, trustees, partners (direct or indirect), 15 siznoiz C: I USERSILDONALDSOMAPPDATAILOCALIMICROSOF71 WINDOWSITEMPORARYlNTERNET FILESI CONTEN7:OUTLOOKI4RU7XJXPIPSA-FINAL-3.DOC members (direct or indirect), representatives, stockholders or other principals or representatives of Purchaser, and no personal liability or personal responsibility of any sort with respect to any of Purchaser's Undertakings or any alleged breach thereof is assumed by, or shall at any time be asserted or enforceable against any of the officers, directors, employees, agents, trustees, partners, members, representatives, stockholders or other principals or representatives of Purchaser. j. Governmental Immunitv. Except as expressly provided in this Contract, Seller and its officers and employees are relying on, and do not waive or intend to waive by any provision of this Contract, the monetary limitations (presently one hundred fifty thousand dollars ($150,000) per person and six hundred thousand dollars ($600,000) per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to Seller and its officers or employees. k. Land Use Anplications. All parties to this Contract understand and acknowledge that, when reviewing land use applications, Seller acts in a quasi judicial capacity. Notwithstanding any other provision of this Contract, nothing in this Contract shall constitute an obligation by Seller to make any particular decision on any land use application that may come before Seller relating to the MOB, and nothing in this Contract shall imply that Seller has pre judged any such application. Seller will review all land use applications relating to the MOB in compliance with the Vail Town Code and other applicable law. 1. Appropriation. Consistent with Article X, § 20 of the Colorado Constitution, any financial obligation of Seller not performed during the current fiscal year is subject to annual appropriation, and thus any obligations of Seller hereunder shall extend only to monies currently appropriated and shall not constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year. m. Exhibits. Each of the exhibits attached to this Contract is incorporated herein by reference. EXECUTED by Seller this day of , 2012. SELLER: THE TOWN OF VAIL, COLORADO Stan Zemler, Town Manager 16 5/2/2012 C: I USERSILDONALDSOMAPPDATAILOCALIMICROSOF7IWINDOWSITEMPORARYlNTERNET FlLESI CONTEN7: O UTLOOKI4R U7XJXPI PSA-FINAL-3. DOC EXECUTED by Purchaser this day of , 2012. PURCHASER: VAIL MOB, LLC, a Colorado limited liability company By: The Steadman Clinic, Professional LLC, Member By:_ Name: Title: And By: Vail Clinic, Inc. d/b/a, Vail Valley Medical Center, Member By:_ Name: Title: 17 S/1/1011 C: I USERSILDONALDSOMAPPDATAILOCALIMICROSOF71 WINDOWSITEMPORARY INTERNET FlLESI CONTENT.OUTLOOKI4RU7XJXPIPSA-FINAL-3.DOC EXHIBIT A PROPERTY DESCRIPTION Property Address: 75 S Frontage Rd Vail, Colorado 81657 County of Eagle, State of Colorado Legal Description: A PART OF THE SOUTHEAST QUARTER OF SECTION 6 TOWNSHIP 5 SOUTH, RANGE 80 WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF EAGLE, STATE OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 6 THENCE NORTH 00 DEGREES 28 MINUTES 16 SECONDS WEST AND ALONG THE EAST LINE OF SAID SOUTHEAST QUARTER 72.75 FEET TO A POINT, SAID POINT BEING 110.00 FEET NORTHEASTERLY FROM THE SOUTHEASTERLY RIGHT OF WAY LINE OF U.S. HIGHWAY NO. 6 AS MEASURED AT RIGHT ANGLES THERETO; THENCE NORTH 79 DEGREES 46 MINUTES 11 SECONDS WEST AND ALONG A LINE PARALLEL TO SAID SOUTHEASTERLY RIGHT OF WAY LINE 145.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 16 DEGREES 08 MINUTES 47 SECONDS EAST, 63.50 FEET; THENCE NORTH 72 DEGREES 03 MINUTES 02 SECONDS WEST, 226.70 FEET; THENCE NORTH 68 DEGREES 08 MINUTES 34 SECONDS WEST, 201.00 FEET; THENCE NORTH 66 DEGREES 43 MINUTES 48 SECONDS WEST, 164.39 FEET; THENCE CONTINUING ALONG THE AFORESAID COURSE 238.00 FEET; THENCE SOUTH 25 DEGREES 53 MINUTES 00 SECONDS WEST, 47.79 FEET; THENCE SOUTH 41 DEGREES 24 MINUTES 53 SECONDS EAST, 183.50 FEET TO A POINT OF CURVE; THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 197.40 FEET, A CENTRAL ANGLE OF 30 DEGREES 47 MINUTES 4 SECONDS, AN ARC DISTANCE OF 106.10 FEET; THENCE SOUTH 72 DEGREES 12 MINUTES 37 SECONDS EAST, 183.50 FEET TO A POINT OF INTERSECTION WITH THE NORTH RIGHT OF WAY LINE OF U.S. HIGHWAY NO. 6 SAID LINE BEING 110.00 FEET NORTHEASTERLY FROM THE SOUTHEASTERLY RIGHT OF WAY LINE OF U.S. HIGHWAY NO. 6 AS MEASURED AT RIGHT ANGLES THERETO; THENCE SOUTH 79 DEGREES 46 MINUTES 11 SECONDS EAST AND ALONG SAID NORTH RIGHT OF WAY L1NE 397.56 FEET TO THE TRUE POINT OF BEGINNING, EXCEPTING THEREFROM THAT PORTION OF SAID PROPERTY DESCRIBED IN DEED RECORDED JULY 14, 1971 IN BOOK 221 AT PAGE 6. 18 5/1/2012 C: I USERSILDONALDSOMAPPDATAILOCALIMICROSOF71 WINDOWSITEMPORARYlNTERNET FILESI CONTEN7:OUTLOOKI4RU7XJXPIPSA-FlNAG3.DOC EXHIBIT B LIST OF PERMITS CDOT: Lease Agreement and/or Special Use Permit for construction staging and crane boom swings in/over the right-of-way Lease Agreement and/or Special Use Permit for Soil Nail Retention in the right-of-way Lease Agreement and/or Special Use Permit and/or Utility Permit for permanent dewatering in the right-of-way Lease Agreement and/or Special Use Permit for private pedestrian bridge over frontage road Special Use Permit for potholing on the Frontage Road Utility Permits for utility construction and operation Special Use and/or Landscaping Permit for landscaping in/near the right-of-way Access Permits to Frontage Road for driveways Town of Vail: Approved Development Plan Pursuant to "Chapter 9- Article C- General Use (GU) District" of the Vail Town Code Town of Vail Building Permit pursuant "Title 10 - Building Regulations" of the Vail Town Code Town of Vail Demolition Permit. 19 snizo�z C: I USERSILDONALDSOMAPPDATAILOCALIMICROSOF71 WINDOWSITEMPORARYlNTERNET FlLES I CONTENT. O UTLOOKI4R U7XJXPI PSA-FINAL-3. DOC EXHIBIT C FORM OF SPECIAL WARRANTY DEED SPECIAL WARRANTY DEED THIS DEED, Made this day of , 20_, between THE TOWN OF VAIL, a Colorado home rule municipality ("Grantor") and VAIL MOB, LLC, a Colorado limited liability company whose principal office address is 181 West Meadow Drive, Vail, Colorado 81657 ("Grantee"): WITNESSETH, That the Grantor, for and in consideration of the sum of FNE MILLION AND NO/100THS DOLLARS ($5,000,000.00), the receipt and sufficiency of which is hereby acknowledged, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell, convey, and conform, unto the Grantee and his heirs, successors and assigns forever, all the real property, together with improvements, if any, situate, lying and being in Eagle County, State of Colorado, A PART OF THE SOUTHEAST QUARTER OF SECTION 6 TOWNSHIP 5 SOUTH, RANGE 80 WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF EAGLE, STATE OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 6 THENCE NORTH 00 DEGREES 28 MINUTES 16 SECONDS WEST AND ALONG THE EAST LINE OF SAID SOUTHEAST QUARTER 72.75 FEET TO A POINT, SAID POINT BEING 110.00 FEET NORTHEASTERLY FROM THE SOUTHEASTERLY RIGHT OF WAY LINE OF U.S. HIGHWAY NO. 6 AS MEASURED AT RIGHT ANGLES THERETO; THENCE NORTH 79 DEGREES 46 MINUTES 11 SECONDS WEST AND ALONG A LINE PARALLEL TO SAID SOUTHEASTERLY RIGHT OF WAY LINE 145.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 16 DEGREES 08 MINUTES 47 SECONDS EAST, 63.50 FEET; THENCE NORTH 72 DEGREES 03 MINUTES 02 SECONDS WEST, 226.70 FEET; THENCE NOR`TH 68 DEGREES 08 MINUTES 34 SECONDS WEST, 201.00 FEET; THENCE NORTH 66 DEGREES 43 MINUTES 48 SECONDS WEST, 164.39 FEET; THENCE CONTINUING ALONG THE AFORESAID COURSE 238.00 FEET; THENCE SOUTH 25 DEGREES 53 MINUTES 00 SECONDS WEST, 47.79 FEET; THENCE SOUTH 41 DEGREES 24 MINUTES 53 SECONDS EAST, 183.50 FEET TO A POINT OF CURVE; THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 197.40 FEET, A CENTRAL ANGLE OF 30 DEGREES 47 MINUTES 4 SECONDS, AN ARC DISTANCE OF 106.10 FEET; THENCE SOUTH 72 DEGREES 12 MINUTES 37 SECONDS EAST, 183.50 FEET TO A POINT OF 1NTERSECTION WITH THE NORTH RIGHT OF WAY LINE OF U.S. HIGHWAY NO. 6 SAID LINE BEING 110.00 FEET NORTHEASTERLY FROM THE SOUTHEASTERLY RIGHT OF WAY L1NE OF U.S. HIGHWAY NO. 6 AS MEASURED AT RIGHT ANGLES THERETO; THENCE SOUTH 79 DEGREES 46 MINUTES 11 SECONDS EAST AND ALONG SAID NORTH RIGHT OF WAY LINE 397.56 FEET TO THE TRUE POINT OF BEGINNING, 20 S/2/2012 C: I USERSILDONALDSOMAPPDAT,9ILOCALIMICROSOF71 WlNDOWSITEMPORARYINTERNET FlLESI CONTENT:OUTLOOKI4RU7XJXPI PSA-FlNAL-3.DOC EXCEPTING THEREFROM THAT PORTION OF SAID PROPERTY DESCRIBED IN DEED RECORDED JULY 14, 1971 IN BOOK 221 AT PAGE 6. also known by street and number as: 75 S. Frontage Road, Vail, Colorado TOGETHER with all and singular the hereditaments and appurtenances thereto belonging, or in anywise appertaining, the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right title, interest, claim and demand whatsoever of the Grantors, either in law or equity, or, in and to the above bargained premises, with the hereditaments and appurtenances subject, however, to those matters described on EXHIBIT A attached hereto and made a part hereof (collectively, the "Permitted Exceptions"). TO HAVE AND TO HOLD the said premises above bargained and described with the appurtenances, unto the Grantee, his successors and assigns forever. The Grantors, for themselves, their successors and assigns, do covenant and agree that they shall and will WARRANT AND FOREVER DEFEND the good and marketable title of above-bargained premises and the quiet and peaceable possession of the Crrantee, his heirs, successors and assigns, against all and every person or persons claiming the whole or any party thereof, by, through or under the Grantors, except for: general taxes and assessments for the year 20_ and subsequent years; subject to all easements, reservations, restrictions, covenants and rights of way of record, if any; and additionally excepting the Peimitted Exceptions. IN WITNESS WHEREOF, The Grantor has executed this Special Warranty Deed the day and year first above written. GRANTOR: THE TOWN OF VAIL, a Colorado home rule municipality By: Name: Its: STATE OF COLORADO ) )ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this _ day of 20_, by whose title is of the Town of Vail, a Colorado home rule municipality. Witness my hand and official seal. My commission expires: Nota.ry Public 21 sizizo�2 C: I USERSILDONALDSOMAPPDATAILOCALIMICROSOF7IWINDOWSITEMPORARYINTERNET FlLES I CONTEN7: O UTLOOKI4R U7XJXPI PSA-FINAL-3. DOC 11. Default and Remedies. a. Purchaser's Default. In the event of a material default by PurchaserYr'�Y � �e�e-�k�ree�-�e�°'��eee���e-�t� under this Contract, and such default€a�e remains uncured for a period of thirty (30) days following written notice thereof from Seller to Purchaser, then Seller may elect, as Seller's sole remedy, to terminate the Contract and recover from Purchaser Seller's actual direct ���--�-out- of-pocket costs related to this Contract up to the date of default, or the amount of TWO MILLION AND NO/100 DOLLARS ($2,000,000.00), whichever is less. Seller expressly waives the remedies of specific performance and additional damages. b. Seller's Default. In the event of a material default by Seller '� �" �'�„a�*���� , D�c�rase�raeee�ee—�}� under this Contract, and such default€a�e remains uncured for a period of thirty (30) days following written notice thereof from Purchaser to Seller, then Purchaser may elect, as Purchaser's sole remedy, to terminate the Contract and recover from Seller Purchaser's actual direct third-party out-of-pocket costs related to this Contract up to the date of default, or the amount of TWO MILLION AND NO/100 DOLLARS ($2,000,000.00), whichever is less. Purchaser expressly waives the remedies of specific performance and additional damages.