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09-17-2014 Purchase & Sale Agreement Points of Colorado IncPURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement ") is executed by POINTS OF COLORADO, INC., a Colorado corporation ( "Seller "), and THE TOWN OF AVON, a Colorado municipal corporation organized as a home rule city ( "Buyer "), and shall be effective as of September 17, 2014 (the "Effective Date "). RECITAL: WHEREAS, Seller desires to sell and Buyer desires to purchase that certain real property located in Eagle County, State of Colorado, and described on Exhibit A attached hereto and incorporated herein by reference (the "Land "), which is a portion of the project commonly known as the Skier Building and as the Phase 113 Office Building in the Mountain Vista Resort Subdivision, together with all improvements located thereon and all appurtenances thereto, including but not limited to the Skier Bronze Statue, but excluding any rights to parking or other appurtenant rights within the Mountain Vista Resort common interest community (collectively, the "Property "), upon and subject to the terms and conditions of this Agreement. AGREEMENT: NOW, THEREFORE, in consideration of the terms and conditions contained herein, Buyer and Seller agree as follows: ARTICLE 1 PURCHASE PRICE AND METHOD OF PAYMENT 1.1 AGREEMENT TO BUY AND SELL. Seller agrees to convey, assign and sell to Buyer, and Buyer agrees to purchase, all of Seller's right, title and interest in and to the Property, under the terms and conditions contained in this Agreement. 1.2 PURCHASE PRICE. The purchase price for the Property shall be THREE MILLION TWO HUNDRED THOUSAND U.S. Dollars ($3,200,000.00) (the "Purchase Price "). The Purchase Price is payable as follows: (a) Earnest Money. Within three (3) Business Days (as hereinafter defined) after the Effective Date, Buyer shall deposit Seventy Thousand U.S. Dollars ($70,000) (the "Deposit ") in the form of a company check, electronic funds transfer or other immediately available funds, which shall be paid to the Title Company (as defined in Section 3.2) and credited toward the Purchase Price at Closing (as hereinafter defined). (b) Payment of Remaining Purchase Price. The remainder of the Purchase Price shall be paid to Seller at the Closing in cash, electronic funds transfer or other funds that are available for immediate withdrawal as a matter of right. (c) Certificates of Participation. Town shall utilize certificates of participation as a form of public financing to obtain the necessary funds for Closing. Purchase and Sale Agreement September 17, 20141 Page 1 of 28 ARTICLE 2 INSPECTION 2.1 INSPECTIONS BY BUYER. (a) Seller Deliveries. Seller has and shall continue to make available to Buyer (by e -mail delivery or for inspection and copying at Seller's offices during business hours), non- confidential and non - privileged documents in Seller's possession related specifically to the title or condition of the Property as reasonably requested by Buyer, including: surveys, site plans, plats, maps; real property tax reports and bills; soils report(s); utility permits; service contracts and maintenance reports; title reports, policies or commitments (collectively, the "Seller Deliveries "). Seller has not undertaken any independent investigation as to the truth, accuracy or completeness of any third party reports, documents or information contained in the Seller Deliveries. These materials are provided for Buyer's convenience only, and, although Seller represents that it has no current, actual knowledge of material inaccuracy in such materials, Seller makes no other warranty or representation regarding their thoroughness or accuracy. (b) Confidentiality of Agreement and Seller Deliveries. Buyer shall keep all Seller Deliveries confidential to the fullest extent permitted in compliance with Colorado laws regarding disclosure of public records. Buyer shall not share such documents with, or provide copies to, any third party (i) other than Buyer's employees and any appraiser, inspector, attorney and other professionals employed to evaluate the physical, financial or legal aspects of the contemplated transaction who agree to be bound by the terms of this Section, or (ii) to the extent Buyer determines, after prior notice affording Seller a reasonable opportunity to protect its interest in maintaining confidential and proprietary information, that disclosure of such documents as public records is required by applicable laws. Seller acknowledges and consents to the public disclosure of this Agreement, the appraisals and building inspections of the Property prepared by Buyer's consultants. 2.2 PHYSICAL CONDITION. Buyer shall have the right to conduct non - invasive physical inspections of the Property, by engineers or other consultants, subject to the terms of this Article 2. 2.3 CONDUCT OF INSPECTIONS. Buyer's inspection of the Property is subject to the following limitations and restrictions: (a) Cost. All testing and inspection shall be conducted at Buyer's sole cost and expense. (b) Damage. Buyer's inspection work shall inflict no damage upon the Property except for minor damage associated with drilling or testing, nor shall any damage be inflicted upon any adjacent property. Any damage caused by Buyer's inspection shall be promptly repaired by Buyer so as to restore the Property or adjacent property to substantially its condition prior to the work. (e) Compliance With Laws. Buyer's work shall be conducted in material compliance with all applicable statutes, rules and regulations of any governmental or quasi- Purchase and Sale Agreement [September 17, 20141 Page 2 of 28 governmental body having jurisdiction over the work or the Property, including but not limited to, those pertaining to Environmental Laws. (d) Access to Property. Buyer shall make reasonable, advance arrangements with Seller, at least 24 hours, before any entry onto the Property. (e) Insurance and Indemnification. Prior to any entry onto the Property by Buyer or any agent, employee or contractor of Buyer for the purpose of conducting any inspections of the Property, Buyer shall deliver to Seller certificates of insurance, in form and substance reasonably satisfactory to Seller, evidencing that such persons or firms entering onto the Property have in full force and effect commercial general liability insurance in an amount not less than $1,000,000.00 per occurrence. Buyer shall, and does hereby, indemnify Seller and Seller's members, manager, employees and agents (each a "Seller Party" and collectively, the "Seller Parties ") against any loss or damage whatsoever, including reasonable attorneys' fees, that a Seller Party incurs as a result of Buyer's inspection, including but not limited to losses or damages arising out of any claim for physical injury or property damage caused by Buyer, its employees, agents or contractors; any lien or claim arising due to Buyer's non- payment for any labor, services or materials arising by, through or under Buyer; or any claim related to the release of any hazardous or toxic substance introduced upon the Property as a result of Buyer's inspection work (but excluding the release or disturbance of hazardous or toxic substances that existed upon the Property prior to Buyer's entry). If any mechanic's lien is recorded against the Property in connection Buyer's inspections or any other act of Buyer, Buyer shall cause the same to be removed by bonding or otherwise within ten (10) days after recording of the lien. This Section 2.3.5 shall be binding upon Buyer even if this Agreement is not approved by ordinance by the Avon Town Council. The terms of this indemnity shall survive the Closing and any termination of this Agreement for a period of one year after Closing or termination. Buyer's indemnification obligation expires after this one year period. 2.4 CONVEYANCE OF TITLE AT CLOSING. Subject to tender of payment at Closing as required herein and compliance by Buyer with the other terms and provisions hereof, Seller must execute and deliver Seller's Deed (defined below) to Buyer, at Closing, conveying the Property free and clear of all (i) taxes except the real property taxes and assessments for the year of Closing and subsequent years (which shall replace "standard" exception, item 6, of the Title Policy); (ii) any mortgages, deeds of trust, monetary liens, or other security interests incurred by Seller; (iii) "standard" exceptions, items 1, 2, 4, 5 and 6 of the Title Policy; and (iv) Permitted Exceptions. (a) The term "Permitted Exceptions" means: (i) any matters shown on Exhibit B attached hereto; (ii) any lien, encumbrance, restriction, reservation, or other title condition arising by or through Buyer; (iii) the rights of third parties in existence as of the Closing Date of which Buyer has actual knowledge and which the Buyer has expressly consented in writing; (iv) the inclusion of the Property in any special taxing district; (v) the covenant of a Right of First Refusal (defined below) found in this Agreement; (vi) the Lot 4 Easement (defined below); and (vii) any additional Purchase and Sale Agreement ISeptember 17, 20141 Page 3 of 28 encumbrances or other title matters intended to be created under this Agreement in forms consented to by both Seller and Buyer. (b) Buyer shall obtain and deliver to the Title Company (defined below), no later than October 14, 2014, a survey of the Property, prepared by a Colorado licensed surveyor and certified to Seller, Buyer and the Title Company, in sufficient form to: (i) permit the Title Company to remove the standard survey exception (no. 3), (ii) locate the utility easements identified on Exhibit B as Nos. 19, 20, 21, 22, 29, 32 and 33, to permit the Title Company to include or remove such easements from its Schedule B- Section II Exceptions to the Title Policy; and (iii) satisfy the Town of Avon requirements for the Replat of Lots 2C, 4 and 5, Mountain Vista Resort Subdivision (the "Survey "). (e) The "Right of First Refusal" means Buyer's covenant and grant to Seller of a right of first refusal to purchase the Property during the three (3) years following Closing (the "Refusal Period ") subject to the following terms and conditions. Before any sale, conveyance, exchange, or other transfer of all or substantially all of the Property ( "Transfer ") during the Refusal Period, Buyer will give written notice to Seller promptly after Buyer receives a bona fide written offer from a third party to a Transfer for 110% of the Purchase Price or greater and that Buyer is willing to accept (an "Offer "). Buyer's written notice of the Offer to Seller will include all material terms of the Offer, including the purchase price, conditions to closing, and expected date of closing. Seller will have the option to purchase the Property on the same terms and conditions of the Offer, except that the purchase price will be the Purchase Price set forth in this Agreement, so long as Seller exercises such option by written notice to Buyer given no later than ten (10) Business Days after Buyer's notice of the Offer to Seller. If Seller does not timely exercise its option in writing, then Seller will be deemed to have waived its Right of First Refusal; provided, however, if thereafter the closing of the Offer does not occur on substantially the same terms as the Offer then the Right of First Refusal will be deemed to remain in full force and effect for the remainder of the Refusal Period (or the earlier written notice of another Offer from Buyer). Seller's Right of First Refusal shall not apply to and none of the following will be considered a Transfer under this Section: (i) any ground lease and lease -back granted by or to Buyer in connection with the certificate of participation financing used to obtain necessary funds for Closing (or any refinancing thereof), and (ii) any leasehold interest and rights of any lender or trustee established in such certificate of participation financing. Seller will promptly execute, at Buyer's expense, such additional documents as reasonably required to acknowledge such subordination. (d) The "Lot 4 Easement" means that easement along, over, beneath and across Lot 4, in the form consented to by counsel for both Seller and Buyer, granting pedestrian and emergency access, fire lane, utility and storm drainage easements, subterranean support and subsistence, shared open space, and such other matters as required to effectuate the withdrawal of Lot 4 from the common interest community of Mountain Vista Resort, the Replat of Lots 2C, 4 and 5, Mountain Vista Resort Subdivision, and Purchase and Sale Agreement [September 17, 20141 Page 4 of 28 to maintain Seller's current and future development rights under the PUD Development Plan. (e) Prior to Closing, Seller will use commercially reasonable efforts to secure written documentation from Vail Associates Investments, Inc. to permit the Title Company to remove item no. 12 ( "Use Restriction ") from its Schedule B — Section II Exceptions to the Title Policy, provided that (i) Seller will not be required to incur expense or liability in connection with such efforts; and (ii) removal of the Use Restriction will not be a condition to Closing. If not secured prior to Closing, Seller will continue for twelve months after Closing to use commercially reasonable efforts to secure such written documentation provided that (x) Seller will not be required to incur expense or liability in connection with such efforts; and (y) failure to secure such documentation despite the exercise of commercially reasonable efforts will not be deemed a default or breach of this Agreement. 2.5 SPECIAL TAXING DISTRICT DISCLOSURE. PURCHASER ACKNOWLEDGES THAT THE PROJECT IS PRESENTLY LOCATED IN THE MOUNTAIN VISTA METROPOLITAN DISTRICT. PURCHASER UNDERSTANDS THAT THE PROJECT MAY BE INCLUDED WITHIN OTHER SPECIAL TAXING DISTRICTS. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND EXCESSIVE TAX BURDENS TO SUPPORT THE SERVICING OF DEBT INCURRED BY A DISTRICT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE ITS INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES. PURCHASERS SHOULD INVESTIGATE THE DEBT FINANCING REQUIREMENT OF THE AUTHORIZED GENERAL OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS, EXISTING MILL LEVIES OF SUCH DISTRICT SERVICING SUCH INDEBTEDNESS, AND THE POTENTIAL FOR AN INCREASE IN SUCH MILL LEVIES. Purchaser hereby acknowledges that under the laws of the state of Colorado any special district may impose property taxes without limit in the future to retire its general obligation debts, notwithstanding its current level of taxation. 2.6 COMMON INTEREST COMMUNITY EXCLUSION. Seller and Buyer acknowledge that the Property is currently included in the Mountain Vista Resort Subdivision and that Seller will amend the Master Declaration for the Mountain Vista Resort common interest community to exclude the Property from the community on or prior to Closing pursuant to Section 3.3 below. 2.7 SELLER'S REPRESENTATIONS AND WARRANTIES. As an inducement to Buyer to enter into this Agreement, and as a part of the consideration therefor, Seller represents to Buyer, its successors and assigns, that: (a) Seller is a Colorado corporation formed and in good standing under the laws of the State of Colorado; the execution, delivery and performance of this Agreement by Seller have been duly and validly authorized by all necessary company action and Purchase and Sale Agreement [September 17, 20141 Page 5 of 28 proceedings, and no further authorization is necessary on the part of Seller in order to consummate the transactions contemplated herein; (b) The execution and delivery of this Agreement by Seller, the performance of any of Seller's obligations hereunder, and the consummation of the transaction contemplated hereby, shall not conflict with, result in a breach of, or constitute a default under, the terms and conditions of the organizational documents pursuant to which Seller was organized, any agreement to which Seller is a party or is bound (or to which the Property is bound), or, to the best of Seller's current, actual knowledge, any order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over Seller; (c) There are no actions, suits, proceedings, judgments, orders, decrees or governmental investigations pending to which Seller is a party that could have a material adverse effect upon Seller's ability to consummate the transaction contemplated by this Agreement; (d) Seller has received no written notice that the Property or any condition upon the Property is in violation of any laws, ordinances, rules, regulations or orders (including but not limited to those relating to zoning, building, fire, health and safety and persons with disabilities) applicable to the Property or the operation thereof, or that the Property or any condition upon the Property is not in compliance with the underwriting standards or requirements of any insurance company or Board of Fire Underwriters; (e) Seller is not a "foreign person" but is a "United States person" as such terms are defined in Sections 1445 and 7701 of the United States Internal Revenue Code; and (f) Seller has not entered into and will not enter into any agreement that provides a right to buy the Property in conflict with Buyer's rights under this Agreement. Unless Seller gives notice to Buyer of any change in the condition of the Property subsequent to the Effective Date or of any other changed condition that would make any of the representations in this Section inaccurate, incomplete or misleading, the foregoing representations and warranties shall be deemed to be reaffirmed at Closing and to be accurate as of the Closing Date. In the event Seller does give Buyer notice that any of the foregoing representations and warranties are no longer accurate and such change materially and adversely affects Buyer's intended use of the Property, then Buyer shall have the right to terminate this Agreement by giving Seller written notice of such termination within fifteen (15) Business Days after Buyer received notice of such inaccuracy in Seller's representations and warranties. If Buyer elects to terminate this Agreement then the Deposit shall be returned to Buyer within three (3) Business Days of providing written notice of termination. In addition, if Seller breaches the representation in Section 2.7(f), then, if Buyer elects to terminate this Agreement: (i) the Deposit will be returned to Buyer within three (3) Business Days of providing the notice of termination, and (ii) Buyer shall be entitled to recover all direct costs incurred by Buyer related to this Agreement and conducting due diligence on the Property in an amount not to exceed $70,000.00. The foregoing representations and warranties shall survive the Closing for a period of ninety (90) Purchase and Sale Agreement September 17, 20141 Page 6 of 28 days, following the expiration of which no action shall be commenced due to any alleged violation thereof. 2.8 BUYER'S REPRESENTATIONS AND WARRANTIES. As an inducement to Seller to enter into this Agreement, and as a part of the consideration therefor, Buyer represents and warrants to Seller, its successors and assigns, that: (a) Buyer is a municipal corporation duly organized and existing under the laws of the State of Colorado and the Home Rule Charter of Avon, Colorado; (b) The execution, delivery and performance of this Agreement by Buyer shall be subject to adoption of an ordinance by the Avon Town Council approving the Agreement in accordance with the Town's procedures for the passage of an ordinance and shall be further subject to all rights of referendum; (c) The execution and delivery of this Agreement by Buyer, the performance of any of Buyer's obligations hereunder, and the consummation of the transaction contemplated hereby, shall not conflict with, result in a breach of, or constitute a default under, the terms and conditions of any agreement to which Buyer is a party or is bound; (d) There are no actions, suits, proceedings, judgments, orders, decrees or governmental investigations pending to which Buyer is a party that could have a material adverse effect upon Buyer's ability to consummate the transaction contemplated by this Agreement; (e) No person holding office of Avon, either by election or appointment, has any interest, either directly or indirectly, in the Property, or has any interest in this Agreement except as such interest may arise in the lawful discharge of the responsibilities of such officer, and upon which officer may be called upon to act or vote; (f) Prior to Closing, Buyer shall neither encumber nor cause any liens to be created against the Property in any way, nor shall Buyer, at any time, record this Agreement or other evidence hereof; and, (g) Buyer shall secure public financing for the necessary funds to purchase the Property through the use of certificates of participation no later than the Closing Date. (h) Buyer shall finally adopt an ordinance by the Avon Town Council approving this Agreement and the ordinance approving bond financing through certificates of participation no later than the Closing Date. In the event an ordinance by the Avon Town Council approving this Agreement and the ordinance approving bond financing through certificates of participation are not finally adopted by October 15, 2014, then Seller and Buyer shall each have the right to terminate this Agreement by giving the other written notice of such termination no later than October 22, 2014 and the Deposit will be returned to Buyer within three (3) Business Days of the notice of termination. Otherwise, Buyer's warranty in this sub - section is a condition precedent for the benefit of Buyer and Seller and failure to satisfy or perform this warranty will result in the release of the Deposit to Seller. Purchase and Sale Agreement [September 17, 20141 Page 7 of 28 Unless Buyer gives notice to Seller of any changed conditions that would make any of the representations in this Section inaccurate, incomplete or misleading, the foregoing representations and warranties shall be deemed to be reaffirmed at Closing and to be accurate as of the Closing Date. In the event Buyer does give Seller notice that any of the foregoing representations and warranties are no longer accurate, then Seller shall have the right to terminate this Agreement by giving Buyer written notice of such termination within fifteen (15) Business Days after Seller received notice of such inaccuracy in Buyer's representations and warranties and Seller shall be entitled to retain the Deposit. The foregoing representations and warranties shall survive the Closing for a period of ninety (90) days, following the expiration of which no action shall be commenced due to any alleged violation thereof. 2.9 CONDITION OF THE PROPERTY. If this Agreement is not terminated, Buyer shall be deemed to have acknowledged that Seller has provided Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as Buyer deems necessary and desirable with respect to the Property and the transaction contemplated by this Agreement and that Buyer has approved the Property in all respects. The following provisions shall thereupon be applicable and shall survive the Closing or termination of this Agreement: (a) Buyer does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement or in the deed or other closing documents to be delivered to Buyer at Closing: (i) Buyer is expressly purchasing the Property in its existing condition with respect to all facts, circumstances, conditions and defects; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) Seller has specifically bargained for the assumption by Buyer of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (iv) Buyer has undertaken all such inspections and investigations of the Property as Buyer deems necessary or appropriate under the circumstances as to the condition of the Property and the suitability of the Property for Buyer's intended use, and based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers and Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; (v) Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by Seller to Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Property as an inducement to Buyer to enter into this Agreement and thereafter to purchase the Property or for any other purpose; and (vi) by reason of all the foregoing, Buyer assumes the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining to the Property. Without limiting the generality of any of the foregoing, and except as otherwise set forth herein or in the closing documents, Buyer specifically acknowledges that Seller does not represent or in any way warrant the accuracy of any marketing information or documents describing the Property or the information, if any, provided by Seller or any broker to Buyer; and Purchase and Sale Agreement [September 17, 20141 Page 8 of 28 (b) EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT OR IN THE CONVEYANCE DOCUMENTS TO BE DELIVERED AT CLOSING, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY HIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, HISTORIC STATUS, THE PRESENCE OF HAZARDOUS MATERIALS OR COMPLIANCE WITH ENVIRONMENTAL LAW OR THE SOIL CONDITIONS OF THE LAND. BUYER FURTHER ACKNOWLEDGES THAT BUYER IS BUYING THE PROPERTY AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR ANY CONVEYANCE DOCUMENT DELIVERED AT CLOSING, BUYER IS NOT RELYING UPON ANY REPRESENTATION OF ANY HIND OR NATURE MADE BY SELLER, OR ANY OF ITS EMPLOYEES OR AGENTS WITH RESPECT TO THE LAND OR PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR THE CONVEYANCE DOCUMENTS TO BE DELIVERED AT CLOSING; and (c) BUYER ACKNOWLEDGES AND AGREES THAT (I) THE PURCHASE OF THE PROPERTY SHALL BE ON AN "AS IS ", "WHERE IS ", "WITH ALL FAULTS" BASIS, SUBJECT TO WEAR AND TEAR FROM THE EFFECTIVE DATE UNTIL CLOSING, AND (II) SELLER HAS NO OBLIGATION TO REPAIR ANY DAMAGE TO OR DEFECT IN THE PROPERTY, REPLACE ANY OF THE PROPERTY OR OTHERWISE REMEDY ANY MATTER AFFECTING THE CONDITION OF THE PROPERTY. ARTICLE 3 CLOSING; CONDITIONS PRECEDENT 3.1 CLOSING DATE. Buyer's payment of the Purchase Price and the delivery of a deed by Seller ( "Closing ") shall occur February 12, 2015 or on such earlier date as mutually agreed upon by the parties (the "Closing Date "). 3.2 TIME AND PLACE OF CLOSING. The Closing shall be held at such time and place upon which the parties mutually agree or, in the absence of agreement, shall be held at 10:00 A.M. local time at the offices of the Title Company of the Rockies, Avon ( "Title Company "). 3.3 CONDITIONS PRECEDENT TO CLOSING. In addition to the other conditions set forth in this Agreement, the conditions set forth in this Section 3.3 shall be conditions precedent to the parties' obligation to close hereunder unless waived by the party benefiting from such contingency. Seller will be responsible for all costs and expenses necessary to satisfy and Purchase and Sale Agreement [September 17, 20141 Page 9 of 28 perform the condition in Section 3.3(g) below. Buyer will be responsible for all costs and expenses necessary to satisfy and perform the conditions in Sections 3.3 (e) and (f). In addition, satisfaction of Buyer's warranties in Section 2.8(g) (certificates of participation) and Section 2.8(h) (adoption of the Town Council ordinances) shall be conditions precedent for the benefit of both Buyer and Seller, and Buyer will be responsible for all costs and expenses necessary to satisfy and perform such warranties and conditions. In the event of a citizens petition for referendum or other legal challenge to the Town's authority herein, each party may, but shall not be obligated to, defend or take other action, at in own cost and expense, in connection with this Agreement. In the event that any condition precedent is not satisfied or performed by the Closing and not waived by the party benefitting from such contingency, then the party benefitting from the contingency may elect to terminate the Agreement, all documents received shall be returned to the party depositing such documents into escrow, and (i) the Deposit will be released to the party benefitting from such contingency, and (ii) when the contingency is for the benefit of both Buyer and Seller (specifically Sections 3.3(e) and (f)), the Deposit will be released to Seller. (a) As to each party, all obligations to be performed by the other party hereunder prior to the Closing have been fully performed, and there shall be no uncured event of default or event on the part of such other parry that would constitute a default of such party. (b) As to each party, all of the representations and warranties of the other party set forth in this Agreement shall be true and accurate. (e) [omitted]. (d) The expiration of 30 days after the second reading finally adopting the ordinance approving this Agreement and the ordinance approving bond financing through certificates of participation without receipt of a citizens petition for referendum or other legal challenge as to the Town's authority and action for the benefit of Buyer. (e) Approval by the Town of a subdivision replat of Lots 2C, 4 and 5 in the configuration depicted by the red dotted line ( "Proposed Property Line (08.06.14) ") and including all areas of Lots 2C, 4 and 5 lying to the south and west of such line, as shown on attached Exhibit D: Depiction of Replat of Lots 2C, 4 and 5 (Obermeier Sheykhet Architecture, Sheet SKA -121) for the benefit of Buyer and Seller. (f) Closing on the bond issue through certificates of participation, for the benefit of Buyer and Seller. (g) Withdrawal of the Property from the common interest community of Mountain Vista Resort and, in connection therewith, various actions to remove identified items from Schedule B — Section II Exceptions, specifically: items 23, 24, 25, 26, 27, 28, 30, 31 and 35, all for the benefit of Buyer. 3.4 DELIVERY OF CLOSING DOCUMENTS BY SELLER. At the Closing, Seller shall execute and deliver the following documents to the Title Company: Purchase and Sale Agreement September 17, 20141 Page 10 of 28 (a) A special warranty deed in substantially the form attached hereto on Exhibit C ( "Seller's Deed "); (b) Seller's settlement statements; (c) A certificate that Seller is not a nonresident alien, as defined in the Internal Revenue Code and Treasury Regulations promulgated thereunder, in accordance with Section 1445 of the Treasury Regulations, or such other certificate or document necessary to comply with Section 1445 of the Internal Revenue Code and such documents as are required to comply with Colorado law with respect to withholding from a nonresident seller; (d) Standard affidavit and indemnity agreement required by the Title Company to provide the owner's title policy with extended coverage in form and content reasonably acceptable to Seller's counsel; (e) Closing instructions, real property tax pro- ration agreement and such additional instruments and documents as may be reasonably required by Buyer or the Title Company in connection with the consummation of the transaction contemplated hereby. 3.5 DELIVERY OF CLOSING FUNDS AND DOCUMENTS BY BUYER. At the Closing, Buyer shall pay the Purchase Price and shall execute and deliver the following documents to the Title Company: (a) Buyer's settlement statements; (b) Standard affidavit and indemnity agreement required by the Title Company to provide the owner's title policy with extended coverage; and (c) Closing instructions, real property tax proration agreement and all other instruments and documents as may be reasonably required by the Title Company or Seller in connection with the consummation of the transaction contemplated hereby. 3.6 SELLER'S CLOSING COSTS. Seller shall pay the following at the Closing: (a) The portion of the premium attributable to standard coverage for the owner's title policy issued by the Title Company; (b) One -half of the closing fees, if any, charged by the Title Company for handling the Closing; (c) If it is necessary to deliver any Closing documents to or on behalf of Seller by courier or overnight delivery, all costs incurred by the Title Company in delivering said items, including, without limitation, the costs of any courier service or postage; and (d) Seller's pro -rata share of real property taxes and other expenses under Section 3.8. Purchase and Sale Agreement [September 17, 20141 Page 11 of 28 3.7 BUYER'S CLOSING COSTS. Buyer shall pay the following closing expenses at the Closing: (a) All recording and documentary fees applicable to the Closing and transfer of title; (b) The portion of the premium attributable to extended coverage and the premiums for endorsements to the title insurance policy desired by Buyer or its bond holders, if any; (c) One -half of the closing fees, if any, charged by the Title Company for handling the Closing; (d) If it is necessary to deliver any Closing documents to or on behalf of Buyer by courier or overnight delivery, all costs incurred by the Title Company in delivering said items, including, without limitation, the costs of any courier service or postage; (e) Sales tax upon any personal property transferred to Buyer and any transfer tax, fee or assessment coming due as a result of the transfer of title to the Property; and (f) Such other charges as are customarily paid by the buyer in a commercial real estate transaction in Eagle County, Colorado. 3.8 PRO - RATIONS AND ADJUSTMENTS. (a) Real Property Taxes. All real property taxes and assessments (including any taxes and assessments levied by special taxing districts) levied against the Property shall be pro -rated as of the date of Closing based on the current assessed valuation and Mill levy, and shall be a final settlement. (b) Utilities Charges. All utilities service charges for the Property shall be pro -rated as of the date of Closing based on the most recent bill for service, and shall be a final settlement. (c) Common Interest Community Assessments. All assessments under the Mountain Vista Resort common interest community, and any other common interest community affecting the Property, shall be pro -rated as of the date of Closing based on the most recent available bill for such assessments, and shall be final settlement. 3.9 CONDUCT OF CLOSING. At the Closing, the Title Company, upon confirming that all funds, documents and other items required by Sections 3.5 through 3.8 of this Agreement have been deposited into escrow and upon delivering to Buyer its unconditional written undertaking (subject to recording the special warranty deed) to issue an ALTA owner's title insurance policy to Buyer in the amount of the Purchase Price subject only to the Permitted Exceptions ( "Title Policy "), shall: (i) disburse the remaining Purchase Price in accordance with the settlement sheets approved and executed by the parties; (ii) record the Seller's Deed in the office of the Clerk and Recorder for Eagle County, Colorado; (iii) file the appropriate reporting documents in accordance with Section 3.10 of this Agreement; and (vi) deliver copies of the executed Closing documents to each of the parties. Purchase and Sale Agreement [September 17, 20141 Page 12 of 28 3.10 REPORTING OF TRANSACTION. The Title Company shall prepare and file, promptly after the Closing contemplated by this Agreement, the required forms with the Internal Revenue Service pursuant to Section 6045(e)(2) of the Internal Revenue Code, as amended. 3.11 DELIVERY OF POSSESSION. Seller shall deliver possession of the Property to Buyer at Closing. 3.12 DELIVERY OF TITLE POLICY. As soon as reasonably practicable after Closing, Seller shall cause the Title Company to deliver the Title Insurance to Buyer in accordance with Section 3.9. 3.13 POST - CLOSING ASSURANCES. From and after Closing, for a period of twelve (12) months, Seller not object to Buyer's petition to exclude Lot 4 from the Mountain Vista Metropolitan District, provided Seller will not be required to incur any expense or liability or breach any pre - existing obligation or duty. ARTICLE 4 RISK OF LOSS 4.1 CASUALTY LOSS. Seller shall bear all risk of destruction of or damage to the Property by flood, fire or other casualty until the Closing Date; provided, however, that in the event that the Property is damaged prior to the Closing Date so as to require repair costs in excess of Five Hundred Thousand and No /100 Dollars ($500,000.00), as reasonably estimated by Seller, Buyer may elect to terminate this Agreement by written notice to Seller within ten (10) days after the date of such damage (or the Closing Date, whichever period is shorter), in which event this Agreement shall terminate pursuant to the provisions of Section 5.4. If the damage does not exceed such amount, or if Buyer elects not to terminate this Agreement in accordance with the terms of this Section, the parties shall proceed to Closing notwithstanding such damage and Buyer shall be entitled to a credit, at Closing, equal to the amount of insurance proceeds received by Seller by reason of damage (net of attorneys' fees, court costs and other expenses incurred by Seller in obtaining such insurance proceeds), not to exceed the Purchase Price. To the extent that the amount of such proceeds has not been finally determined and received by Seller as of the Closing, the Purchase Price shall not be adjusted and Seller shall pay to Buyer the net amount of any such insurance proceeds received by Seller following the date of Closing (which obligation shall survive Closing). After the Closing, Buyer shall bear the risk of destruction of or damage to the Property. ARTICLE 5 DEFAULT AND REMEDIES 5.1 SELLER'S DEFAULT. (a) Failure to Perform Under Agreement. Except as otherwise provided herein, if, due to circumstances other than Buyer's failure to perform any term or condition of this Agreement binding on it, Seller fails to timely perform any of its obligations under this Agreement or breaches any of the covenants described in Section 3.3 of this Agreement, Buyer shall deliver to Seller a written notice detailing such failure of performance. With respect to monetary defaults, Seller shall have five (5) days from Purchase and Sale Agreement [September 17, 20141 Page 13 of 28 receipt of such notice (or until the Closing Date, whichever first occurs) within which to remedy the failure of performance. With respect to non - monetary defaults, Seller shall have ten (10) days from receipt of such notice (or until the Closing Date, whichever first occurs) within which to remedy the failure of performance. Notwithstanding the foregoing, no curative or grace period shall be applicable to Seller's failure to perform its obligations at Closing. (b) Buyer's Remedies. If, at the expiration of the applicable curative period, Seller has not cured such failure of payment or performance, Buyer will elect to either: (a) declare this Agreement terminated (in which event the Seller shall promptly return the Deposit to Buyer and, in the event of a breach of the representation in Section 2.7(f), recover Buyer's direct costs up to $70,000.00); or (b) bring an action against Seller for specific performance in accordance with this Agreement. The option selected by Buyer shall be Buyer's sole and exclusive remedy. 5.2 BUYER'S DEFAULT. (a) Failure to Perform Under Agreement. If, due to circumstances other than Seller's failure to perform any term or condition of this Agreement binding on it, Buyer fails to timely perform any of its obligations under this Agreement when required by this Agreement, Seller shall deliver to Buyer written notice detailing such failure of performance. With respect to monetary defaults, Buyer shall have five (5) days from receipt of such notice (or until the Closing Date, whichever first occurs) within which to remedy the failure of performance. With respect to non - monetary defaults, Buyer shall have ten (10) days from receipt of such notice (or until the Closing Date, whichever first occurs) within which to remedy the failure of performance. Notwithstanding the foregoing, no curative or grace period shall be applicable to Buyer's failure to deposit the Deposit or to perform its obligations at Closing. (b) Seller's Remedies. If, at the expiration of such applicable cure periods as set forth above, Buyer has not cured any such default, Seller will retain the Deposit paid to the date of such termination as liquidated damages and not as a penalty. Buyer acknowledges that Seller's actual damages resulting from such default would be extremely difficult and impractical to ascertain and that the Deposit represents a fair approximation of such damages. Retention of the Deposit shall be Seller's sole remedy. 5.3 ATTORNEYS' FEES AND COSTS; WAIVER OF JURY TRIAL. In the event of any litigation between the parties concerning this Agreement or the enforcement of this Agreement (or, in the event of arbitration, if the parties agree to arbitrate any dispute), the prevailing party shall be awarded payment of its costs and expenses relating to such action, including, but not limited to, court costs and reasonable attorneys' fees and expert witness fees incurred by the prevailing party at trial and upon appeal. For the purpose of this Section, the term "prevailing party" shall include a parry that withdraws or dismisses a claim in return for payment allegedly due, performance of a covenant allegedly owed, or other consideration substantially satisfying the claim withdrawn or dismissed. In determining which party is the prevailing party in an action, a court or arbitrator may consider the relief sought, the merit of the parties' positions and Purchase and Sale Agreement [September 17, 20141 Page 14 of 28 the degree to which a party prevailed in the action. The provisions of this Section shall survive Closing. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY DOCUMENT EXECUTED IN CONNECTION HEREWITH OR RELATED HERETO, OR ANY COURSE OR CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS TRANSACTION. 5.4 TERMINATION PRIOR TO CLOSING. In the event of a termination of this Agreement pursuant to any provision of this Agreement, this Agreement shall terminate and, with the exception of provisions that expressly survive termination of this Agreement, each party shall be relieved of any further duties or obligations hereunder. In the event of any termination of this Agreement prior to Closing, Buyer shall promptly return to Seller all documents and other information Seller provided to Buyer for its due diligence purposes, and Buyer shall assign to Seller, at no cost, all of Buyer's right, title and interest, if any (and to the extent such right, title and interest is assignable), in and to and deliver to Seller originals or copies of all third -party reports, studies, inspections, surveys, analyses, documents and other work product obtained by Buyer during its due diligence that are within Buyer's possession and control regarding the Property (excluding attorney - client privileged materials and proprietary financial information). Any such materials will be provided to Seller as provided herein without any representation or warranty whatsoever from Buyer as to the accuracy or completeness of any matters contained therein, and without warranty or representation as to Buyer's right, title or interest therein, if any. 5.5 POST CLOSING DEFAULT. The limitations on the parties' remedies set forth in Sections 5.1 and 5.2 shall not be deemed to prohibit either party from pursuing its remedies available at law or in equity for any breach discovered post - Closing of a representation or warranty that survives Closing under this Agreement; provided, however, any action relating to such breach must be commenced within the time frame expressly set forth in Sections 2.8 and 2.9. ARTICLE 6 NOTICES 6.1 MANNER OF NOTICE. All notices or demands under this Agreement shall be in writing and shall be deemed given and received according to the following provisions: (a) Personal Delivery. If notice is given by personal delivery, notice shall be deemed to have been given and received on the day of the actual receipt by the receiving party. (b) Overnight Courier. If notice is given by nationally recognized overnight courier service, notice shall be deemed to have been given and received on the first Business Day following its timely deposit with such courier service, delivery fees for next Purchase and Sale Agreement [September 17, 20141 Page 15 of 28 Business Day delivery prepaid. No signature affirming receipt by the receiving party is required. The internal records of the courier service shall be accepted as sufficient evidence of the date of the deposit of the notice with the courier service. (c) Postal Service. In the case notice is given by means of the U.S. Postal Service, notice shall be deemed to have been given and received on the third Business Day after the deposit of the notice, postage prepaid, certified mail return receipt requested, with the U.S. Postal Service, addressed to the receiving party. (d) E -mail Transmission. In the case of transmission by e -mail, notice shall be deemed to have been given and received on the day of confirmation of receipt by the recipient of such transmission. Such e-mail transmission, to be considered effective, shall be corroborated by a copy of the e -mail printout showing the e-mail address from which transmitted, the e -mail addresses to which transmitted, the date and the time of such transmission and that the transmission was successful. A copy of any notice of default or termination given by e -mail transmission shall also be delivered by means of overnight courier service. 6.2 ADDRESSES FOR NOTICE. All notices shall be given to the respective parties at the following addresses and numbers, until further written notice given in accordance with this Section: If to Seller: Points of Colorado, Inc. c/o Starwood Vacation Ownership Attn: Troy Eichmann, Senior Director 9002 San Marco Court Orlando, Florida 32819 E -mail: troy. eichmann(ai) starwoodvo.com With a copy to: Ballard Spahr LLP Attn: Chris Payne 1225 Seventeenth Street, Suite 2300 Denver, Colorado 80202 E -mail: paynec(a)ballardspahr.com If to Buyer: Town of Avon Attn: Town Manager One Lake Street P.O. Box 975 Avon, CO 81620 E -mail: vve ,ger(a_)avon.org Purchase and Sale Agreement [September 17, 20141 Page 16 of 28 With a copy to: Town of Avon Attn: Town Attorney One Lake Street P.O. Box 975 Avon, CO 81620 E -mail: townattorney(c�avon.org ARTICLE 7 MISCELLANEOUS 7.1 TDAE. Time is of the essence with regard to the performance of the obligations of the parties under this Agreement. If the date for any such performance falls on a Saturday, Sunday or banking holiday, the date of performance shall be extended to the next regular Business Day. Unless expressly stated to be a Business Day, the term "day" in this Agreement shall mean a calendar day. The term "Business Day" as used in this Agreement shall mean any day other than a Saturday, Sunday or other day on which banking institutions in the State of Colorado are authorized by law or executive action to close. 7.2 ENVIRONMENTAL LAW. As used in this Agreement, "Environmental Law" shall mean any federal, state and local environmental law, ordinance, rule, directive, regulation, binding written interpretation, binding written policy, order, judgment, injunction or decree in effect as of the date of this Agreement with respect to or which otherwise pertain to or affect (i) the Property (or any portion thereof), (ii) the use, ownership, occupancy or operation of the Property (or any portion thereof), (iii) Seller, or (iv) Buyer, relating to protection of human health or the environment, relating to Hazardous Substances and/or relating to liability for or costs of other actual or threatened danger to human health or the environment, and as the same have been amended, modified or supplemented from time to time prior to and are in effect as of the date of this Agreement, including but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right -to- Know Act; the Hazardous Substances Transportation Act; the Resource Conservation and Recovery Act (including but not limited to Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the National Environmental Policy Act; the Oil Pollution Act of 1990, any state and local environmental law, all amendments and supplements to any of the foregoing and all regulations and publications promulgated or issued pursuant thereto. The term "Hazardous Substances" includes but is not limited to any and all substances (whether solid, liquid or gas) defined, listed, or otherwise classified as pollutants, hazardous wastes, hazardous substances, hazardous materials, extremely hazardous wastes, or words of similar meaning or regulatory effect under any present or future Environmental Laws or that may have a negative impact on human health or the environment, including but not limited to petroleum and petroleum products, asbestos and asbestos - containing materials, polychlorinated biphenyls, lead, radon, mold, radioactive materials, flammables and explosives, but excluding substances of kinds and in amounts ordinarily and customarily used or stored in properties similar to the Property for the Purchase and Sale Agreement [September 17, 20141 Page 17 of 28 purposes of cleaning or other maintenance or operations and otherwise in compliance with all Environmental Laws. 7.3 ASSIGNMENT. This Agreement is not assignable, without the prior written consent of both Seller and Buyer, which consent may be withheld in the sole discretion of each parry. 7.4 BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of the parties and their heirs, personal representatives, successors and permitted assigns. 7.5 GOVERNING LAW. This Agreement has been executed in the State of Colorado and shall be governed by the laws of the State of Colorado. 7.6 GENDER AND NUMBER. Any term of gender used in this Agreement shall include all genders and legal entities, and the plural shall include the singular, and the singular shall include the plural, all as the context may require. 7.7 SEVERABILITY. The invalidity of any provision of this Agreement shall not affect the validity or enforceability of any other provision set forth in this Agreement. If any provision is found to violate any law or public policy, the affected provision shall be deemed to be amended to conform with applicable law or public policy while, insofar as possible, retaining the original import of such provision. 7.8 SECTION HEADINGS. The section headings contained in this Agreement are for the purposes of identification only and shall not be considered in construing this Agreement. 7.9 BROKERAGE. Each party acknowledges, represents and warrants to the other that such party has not engaged or utilized the services of any third -party broker, agent or fmder in connection with this transaction who shall be entitled to a commission or fee as a result of this Agreement or the consummation of the transaction contemplated herein. Each party agrees to indemnify and hold the other harmless from any damages resulting from a breach of this representation by such parry, including reasonable attorneys' fees, costs and expenses of defending a claim. 7.10 ENTIRE AGREEMENT; MODIFICATION OF AGREEMENT. This Agreement is an integrated agreement which supersedes all prior understandings and agreements between the parties with regard to the Property. This Agreement may only be modified by an agreement in writing and signed by both of the parties. 7.11 SURVIVAL OF PROVISIONS AFTER CLOSING. Any provisions of this Agreement which require observance or performance after the date of Closing, shall continue in force and effect following the Closing Date. 7.12 GENERAL COOPERATION. Notwithstanding any other provision of this Agreement to the contrary, and notwithstanding the Closing of the sale of the Property to Buyer, the parties agree in good faith before and after such Closing to execute such further or additional documents, and to take such other actions, as may be reasonably necessary or appropriate to fully carry out the intent and purpose of the parties as set forth in this Agreement. Purchase and Sale Agreement [September 17, 20141 Page 18 of 28 7.13 NEGOTIATED AGREEMENT: LEGAL COUNSEL. This Agreement shall not be construed more strictly against one party than the other merely by virtue of the fact that it has been prepared by counsel for one of the parties, it being recognized that Buyer has been represented by legal counsel and has had the opportunity to contribute substantially and materially to the terms and preparation of this Agreement. 7.14 COUNTERPARTS AND EMAIL SIGNATURES. This Agreement may be executed in counterparts, which, taken together, shall constitute the agreement of the parties. Signatures transmitted by electronic mail shall be valid and binding for all purposes. If a party's signature is transmitted by electronic mail, such party will provide the other party with an originally signed copy of this Agreement within ten (10) days of any request; provided, however, that such party's failure to do so does not affect the validity of this Agreement. 7.15 EFFECTIVE DATE. The Effective Date shall be the date first stated on page 1 of this Agreement, provided that in no event shall this Agreement be effective and binding upon the parties until executed and delivered by both Seller and Buyer. Either party may rescind this offer in writing prior to execution and delivery of this Agreement by both parties, in which case this Agreement shall not become effective. [SIGNATURE PAGE FOLLOWS] Purchase and Sale Agreement [September 17, 20141 Page 19 of 28 IN WITNESS WHEREOF, the parties have executed this Purchase and Sale Agreement as of the Effective Date, regardless of the actual date of execution. This Agreement will not become binding until executed by both parties, including all applicable Avon officials. Seller: POINTS OF COLORADO, INC., a Colorado corporation LIM Name: Title: [Seller's Signature Page] Exhibit A to Purchase and Sale Agreement LEGAL DESCRIPTION [Lot 4, Mountain Vista Resort Subdivision, Town of Avon, Colorado, according to the Replat of Lots 2C, 4 and 5, Mountain Vista Resort Subdivision, Town of Avon, Colorado as depicted in Exhibit D] A -1 Exhibit A [September 17, 2014] Exhibit B to Purchase and Sale Agreement EXCEPTIONS 3. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land. M 7. Right of the Proprietor of a Vein or Lode to extract and remove his ore therefrom, should the same be found to penetrate or intersect the premises hereby granted, as reserved in United States Patent recorded May 4, 1905, in Book 48 at Page 272. 8. Restrictions, which do not contain a forfeiture or reverter clause, as contained in instrument recorded April 29, 1985, in Book 411 at Page 960 and February 7, 1990, in Book 522 at Page 721 . 9. Restrictions, which do not contain a forfeiture or reverter clause, as contained in the Deed from Benchmark at Beaver Creek, a limited partnership to Tandora S.A. and Tancura S.A., recorded June 29, 1979, in Book 287 at Page 548. 10. Easement and right of way for road purposes, as granted by Willis J. Wright, Jr. Real Estate Co. to the Town of Avon by instrument recorded May 30, 1994, in Book 639 at Page 237, said easement being more particularly described therein. 11. Memorandum of Agreement by Vail Associates Investment, Inc., James S. Mandel, Larry D. Doll, Ann Kingsley, Richard D. MacCutcheon and Eade Hopkins recorded March 16, 2000, at Reception No. 724918 and Memorandum of Assignment recorded May 1, 2000, at Reception No. 728546. 12. Use Restriction Agreement by Points of Colorado, Inc., a Colorado corporation and Vail Associates Investments, Inc., a Colorado corporation recorded April 24, 2000, at Reception No. 728124, and Amendment thereto recorded January 5, 2006 at Reception No. 200600251. ( * *) 13. Town of Avon Ordinance No. 02, Series of 2000 Conditionally Approving a PUD Development Plan (Including Development Standards) recorded May 30, 2000, at Reception No. 730844, and the PUD Development Plan referred to therein as Exhibit "A ", filed May 30, 2000 at Reception No. 730845 . 14. Service Plan for Mountain Vista Metropolitan District recorded May 30, 2000, at Reception No. 730923, Order and Decree organizing the Mountain Vista Metropolitan District recorded May 30, 2000, at Reception No. 730924, and Map of District Boundaries recorded December 18, 2009 at Reception No. 200927086. 15. Those terms agreement, provisions, conditions and obligations which are a burden to subject property as contained in Agreement Governing Design, Construction, and Management of Storm Water Detention and Pollution Control Facilities by the Town of Avon, a Colorado municipal corporation and Points of Colorado, Inc., a Colorado corporation recorded June 7, 2000, at Reception No. 731541 . 16. Agreement Regarding Revocable Permit for Construction Access by Points of Colorado, Inc. and Avon Commercial Center LTD. recorded November 16, 2000, at Reception No. 744154. 17. Reciprocal Access Easement Agreement made by and between Points of Colorado, Inc. and Avon Commercial Center, Ltd. recorded November 16, 2000, at Reception No. 744155. ( *) B -1 Exhibit B [September 17, 2014] 18. Development Agreement by Vail Associates Investments, Inc., Avon Commercial Center Ltd., Shapiro Development Co. and the Town of Avon recorded February 5, 2001, at Reception No. 749431 and Amendment recorded February 5, 2001, at Reception No. 749432. 19. Storm Sewer and Drainage Easement Agreement by Points of Colorado, Inc. and Avon Commercial Center Ltd. recorded February 5, 2001, at Reception No. 749435.( *) 20. Holy Cross Energy Nonexclusive Underground Right of Way Easement as granted by Points of Colorado, Inc. recorded April 3, 2001, at Reception No. 753560. ( *) 21. Easements rights of way and other matters as shown on the Plat of Mountain Vista Resort Subdivision recorded April 18, 2001 at Reception No. 754852, and Amended Final Plat, a Replat of Lot 4 and Lot 5, Mountain Vista Resort Subdivision, recorded July 6, 2005 at Reception No. 921725. ( *) 22. Trench, Conduit and Vault Agreement between Points of Colorado, Inc. and Holy Cross Energy dated March 28, 2001, and recorded April 10, 2001, at Reception No. 754127. ( *) 29. Mountain Vista Condominium Telecommunications Easement Agreement recorded October 30, 2001, at Reception No. 771154, insofar as it may affect that part of the subject property described as "Expansion Property" in Exhibits D and D -1 to the Condominium Declaration for Mountain Vista Condominium recorded October 5, 2001, at Reception No. 769320, and First Amendment thereto recorded August 22, 2003 at Reception No. 845097. ( *) 32. Holy Cross Energy Underground Right of Way Easement recorded August 1, 2003, at Reception No. 842641. ( *) 33. Trench, Conduit and Vault Agreement made by and between Points of Colorado, Inc., a Colorado corporation and Holy Cross Energy, a Colorado corporation, recorded September 17, 2003 at Reception No. 849973. ( *) 34. Easements rights of way and other matters as shown on the Amended Final Plat, a Replat of Lot 4 and Lot 4, Mountain Vista Resort Subdivision, recorded July 6, 2005 at Reception No. 921725. ( *) NEW: Easements, rights of way and other matters as shown on a Replat of Lots 2C, 4 and 5, Mountain Vista Resort Subdivision, recorded [date to be determined] at Reception No. [to be determined]. ( *) Such exceptions will be omitted from this list and from the definition of "Permitted Exceptions" for purposes of this Agreement and the Seller's Deed to the extent the Survey permits the Title Company to remove such exceptions from its Schedule B- Section H Exceptions to the Title Policy and, with regard to use of the Survey as a replat, to the extent such exceptions are superseded by the Replat of Lots 2C, 4, and 5, Mountain Vista Resort Subdivision. ( * *) Exception item no. 12 will be omitted from this list and from the definition of "Permitted Exceptions" for purposes of this Agreement and Seller's Deed to the extent provided under Section 2.4(e) of the Agreement. I: Exhibit B [September 17, 2014] Exhibit C to Purchase and Sale Agreement FORM OF SELLER'S DEED C -1 Exhibit C [September 17, 2014] Exhibit C: Form of Special Warranty Deed RECORDING REQUESTED BY AND WHEN RECORDED PLEASE RETURN TO: Town of Avon P.O. Box 975 Avon, CO 81620 attn: Debbie Hoppe, Town Clerk SPECIAL WARRANTY DEED [STATUTORY FORM — C.R.S. § 38 -30 -1151 Points of Colorado, Inc., a Colorado corporation ( "Grantor "), whose regular mail (United States Postal Service) address is , for the consideration of Ten and 00 /100 Dollars ($10.00) and other good and valuable consideration, in hand paid, hereby sells and conveys to the TOWN OF AVON, a home rule municipal corporation of the State of Colorado ( "Grantee "), whose street address is One Lake Street, P.O. Box 975, Avon, Colorado 81620, County of Eagle, State of Colorado, the real property that is described as follows: Lot 4, Mountain Vista Resort Subdivision, Town of Avon, Colorado, according to the Replat of Lots 2C, 4 and 5, Mountain Vista Resort Subdivision, Town of Avon, Colorado, approved by the Town of Avon on , recorded on at Reception No. , as known as [new street address to be determined] West Benchmark Road, Avon, Colorado TO HAVE AND TO HOLD the said premises above bargained and described with the appurtenances, including but not limited to the Skier Bronze Statue, unto Grantee, and Grantee's heirs, successors and assigns forever. Grantor, for itself and its heirs, successors and assigns, does covenant and agree that Grantor shall and will WARRANT AND FOREVER DEFEND the above bargained premises in the quiet and peaceable possession of Grantee, and Grantee's heirs, successors and assigns, against all and every person or persons claiming the whole or any part thereof, by, through or under Grantor, subject to (a) real property taxes and assessments for [20141 and subsequent years, a lien not yet due and payable, and (b) the matters set forth on Exhibit A attached hereto and made a part hereof. Points of Colorado, Inc., a Colorado corporation: By: [insert name and title] STATE OF ) ss: COUNTY OF ) The foregoing instrument was acknowledged before me on , 2014, by as of Points of Colorado, Inc., a Colorado corporation. Witness my hand and official seal. My commission expires: Notary Public C -2 Exhibit C [September 17, 20141 Exhibit C: Form of Special Warranty Deed EXHIBIT A Exceptions [to be inserted upon determination of Permitted Exceptions and include ROFR and Lot 4 Easement] C -3 Exhibit C [September 17, 2014] Exhibit D to Purchase and Sale Agreement DEPICTION OF REPLAT OF LOTS 2C, 4 AND 5 SHERATON'S MOUNTAIN VISTA =fig In AMENDED PLID DEVELOPMENT PLAN e AVON COLORADO 81620 ����$ D -1 Exhibit D [September 17, 2014] Buyer: TOWN OF AVON, a Colorado home rule municipal corporation Attest: �o� �nprm- Name: Virginia C. E ger Town Clerk Title: Town Mana Approved as to Form: Town A to ey [Town of Avon Signature Pagel