CITY OF PAPILLION MAYOR AND CITY COUNCIL REPORT September 19, 2017 AGENDA

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1 CITY OF PAPILLION MAYOR AND CITY COUNCIL REPORT September 19, 2017 AGENDA Subject: Type: Submitted By: Approval of Real Estate Purchase Agreement for the sale of City property, Part of Tax Lot 30A, Papillion Business and Technology Park, generally located on the southwest corner of the intersection of Cornhusker Road and 72 nd Street, to Family ER. Resolution No. R Christine Myers, City Administrator SYNOPSIS City staff is proposing to sell the northern most portion of Tax Lot 30A (identified as Parcel 1, approximately 1.87 acres (81,457.2 sqft), depicted on Exhibit A to the Real Estate Purchase Agreement), which is located in the Papillion Business and Technology Park on the southwest corner of the intersection of Cornhusker Road and 72 nd Street to Family ER, the Buyer. Family ER is proposing to construct a health care facility on Parcel 1. As part of the Real Estate Purchase Agreement, the City is agreeing to plat Tax Lot 30A into three (3) separate parcels, to design and construct a new road on the west side of the Tax Lot which will connect Cornhusker on the north and American Parkway on the south, and to construct standard public improvements (water, storm sewer, and sanitary sewer) at the time of the road construction. The Purchase Agreement also contemplates that the Parties will negotiate and enter into several additional agreements prior to closing: (1) a Construction Agreement, having to do with the City s construction of the new road; (2) a Buy-Back Agreement, allowing the City to buy back Parcel 1 under certain conditions; and (3) an Option Agreement, which would allow the Buyer to purchase Parcel 2, which is located immediately south of Parcel 1, for potential future development. BACKGROUND Approximately twenty years ago, in 1997, the City Council created the Papillion Business and Technology Park to attract business development, and approved a Declaration of Covenants, Conditions and Use Restrictions for the Business and Technology Park. Since that time, eight (8) businesses, as well as the Papillion Police Department, have located in the Business and Technology Park. Several tax lots remain unplatted and undeveloped, including Tax Lot 30A. FISCAL IMPACT The purchase price for Parcel 1 is estimated to be $1,221,858.00, based upon Fifteen dollars ($15.00) per square foot. The price may be adjusted up or down based upon the actual square footage within Parcel 1, based upon a survey and platting of Tax Lot 30A. RECOMMENDATION Approval. ATTACHMENTS: Resolution R Real Estate Purchase Agreement, with Exhibit A

2 RESOLUTION NO. R A Resolution to approve the Real Estate Purchase Agreement for the sale of certain Cityowned real estate, located in Papillion Business and Technology Park, to Family Emergency Rooms, LLC ( Family ER ), a Texas corporation; and WHEREAS, Family ER wishes to purchase all of City s interests and rights to a part of Tax Lot 30A, which is identified as Parcel 1, approximately 1.87 acres (81,457.2 sqft), as depicted on Exhibit A to the Real Estate Purchase Agreement, and generally located in the southwest corner of the intersection of Cornhusker Road and 72 nd Street (the Property ), for Family ER s proposed construction of a health care facility; and WHEREAS, the Real Estate Purchase Agreement contemplates that the City will plat Tax Lot 30A into three (3) separate parcels, to construct a new road on the west side of Tax Lot 30A, which will connect Cornhusker on the north and American Parkway on the south, and to construct standard public improvements (water, storm sewer, and sanitary sewer); and WHEREAS, the Real Estate Purchase Agreement also contemplates that the Parties will negotiate and enter into several additional agreements prior to closing on the property: (1) a Construction Agreement, having to do with the City s construction of the new road; (2) a Buy-Back Agreement, allowing the City to buy back the Property under certain conditions; and (3) an Option Agreement, which would allow the Buyer to purchase Parcel 2, located immediately south of the Property, for potential future development; and WHEREAS, the City of Papillion finds that the Real Estate Purchase Agreement is in the best interests of the residents of the City of Papillion; and NOW THEREFORE, BE IT RESOLVED that the Mayor and the City Council of the City of Papillion hereby approve the Real Estate Purchase Agreement on behalf of the City. BE IT FURTHER RESOLVED, that the Mayor, City Administrator, and City Attorney or their designees are hereby authorized to execute any and all necessary written documents and memoranda to facilitate the closing of the sale of the Property, subject to the passage and publication of an Ordinance for the sale and conveyance of the property and completion of the statutory 30-day remonstrance period, pursuant to Neb. Rev. Stat PASSED AND APPROVED THIS DAY OF, CITY OF PAPILLION ATTEST: David P. Black, Mayor Nicole Brown, City Clerk (SEAL)

3 REAL ESTATE PURCHASE AGREEMENT This Real Estate Purchase Agreement ( Agreement ) is made this day of, 2017 (the Effective Date ) by and between the City of Papillion, a political subdivision of the State of Nebraska (hereinafter referred to as Seller ), and Family Emergency Rooms, LLC, a limited liability corporation duly organized and validly existing under the laws of the State of Texas, whose principle place of business is located at 3620 E. Whitestone Blvd., Cedar Park, TX (hereinafter referred to as Buyer ) (collectively, the Parties ). The Effective Date of this Agreement shall be the date of approval by the Papillion City Council ( City Council ). PRELIMINARY STATEMENT Seller is the legal and beneficial owner of certain unimproved real property consisting of approximately 1.87 Acres or 81,457.2 square feet (the Assumed Square Footage ) located at the Papillion Business and Technology Park on the southwest corner of the intersection of 72 nd Street and Cornhusker Road, Papillion, Nebraska, described as a part of Tax Lot 30 Exc Pts taken for plat and depicted as Parcel 1 on Exhibit A, attached hereto and incorporated herein by reference, which property ownership includes, without limitation, all rights, benefits, privileges, easements, licenses, appurtenances, mineral rights, and water rights benefiting such real property (hereinafter the Property ). Seller desires to sell the Property to Buyer and Buyer desires to purchase the Property from Seller, and for the purpose of evidencing the agreements of Seller and Buyer have entered into this Agreement. TERMS AND PROVISIONS In consideration of the foregoing Preliminary Statement and for good and valuable consideration of the mutual covenants and agreements set forth in this Agreement, the receipt and sufficiency of which is hereby acknowledged, the Seller and Buyer agree as follows: ARTICLE I SALE AND PURCHASE OF PROPERTY 1.1 Sale and Purchase. Subject to the terms, conditions, representations, and warranties set forth herein, Seller agrees to sell and convey the entirety of Seller s rights, title, and interest in the Property to Buyer, and Buyer agrees to purchase all of Seller s rights, title, and interest in and to the Property. 1.2 Property AS IS. Except as expressly stated herein or in the documents delivered at Closing, Buyer is buying the Property AS IS based upon its own investigation and inquiry and is: (i) not relying on any representations of the Seller as to any matter regarding the Property other than as specifically set forth herein, (ii) not relying on any representations of any other person or entity, and (iii) agreeing to accept the Property subject to the conditions set forth herein. ARTICLE II PURCHASE PRICE AND PAYMENT 2.1 Purchase Price. The total purchase price for the Property shall be approximately One Million Two Hundred Twenty-One Thousand Eight Hundred Fifty Eight and no/100 Dollars ($1,221,858.00), based upon Fifteen Dollars ($15.00) per square foot (the Purchase Price ). Prior to Closing, the Purchase Price shall be adjusted up or down based upon the actual square footage within the

4 Property as set forth in Article IV, Section 4.1(a) and (b) below and determined by a Survey and platting of the entirety of Tax Lot 30 Exc Pts taken for plat (hereinafter Tax Lot 30 ) to subdivide Tax Lot 30 into Parcel 1 (the Property), Parcel 2, and Parcel 3, with public road and rights-of way improvements, as further described herein. 2.2 Payment. The Purchase Price shall be paid as follows: (a) Earnest Deposit. Within five (5) business days after the Effective Date, the sum of Ten Thousand and no/100 Dollars ($10,000.00) shall be paid as an earnest deposit (the Earnest Deposit ) into escrow with Nebraska Title Company (the Title Company or Escrow Agent ) as Escrow Agent, Attn: Natalie Wordekemper, th Street, Suite 120, Papillion, NE 68046, telephone: ; fax: Failure to make the Earnest Deposit as required herein shall, at Seller s election, result in the termination of this Agreement upon written notice from Seller to Buyer and release of the Parties from further obligation hereunder. The Earnest Deposit shall be applied toward the Purchase Price at Closing, or, in the event that a Closing does not occur, shall be paid by the Escrow Agent to the party who is entitled to receive the Earnest Deposit according to the terms of this Agreement; and (b) Balance. The balance of the Purchase Price, subject to adjustments, prorations, or credits, as provided herein, shall be paid by Buyer to Seller by wire transfer to the Title Company as the Escrow Agent on or before the Closing Date, and the Escrow Agent shall then pay such balance by wire transfer to Seller on the Closing Date. Buyer and Seller shall be responsible for their individual wiring fees. ARTICLE III CLOSING 3.1 Closing Date. Assuming all contingencies herein have been satisfied or otherwise waived, the Closing of this transaction shall occur in the offices of the Escrow Agent within Ten (10) days following expiration of the Remonstrance Period (as defined below). Possession of the Property shall be delivered to Buyer at Closing. 3.2 Place of Closing. The place of Closing shall be held at Nebraska Title Company, th Street, Suite 120, Papillion, NE Warranty Deed. At Closing, Seller shall execute and deliver to Buyer a warranty deed conveying insurable, marketable, fee-simple title to the Property, free and clear of all liens, encumbrances, limitations, covenants, reservations, conditions, restrictions, and easements, except for such covenants, reservations, conditions, restrictions, or easements as permitted in accordance with Section 4.1 below. Such conveyance shall also convey to Buyer any and all interest of Seller in any easements, licenses, and appurtenances which benefit the Property, and any mineral rights and water rights specific to the Property. 3.4 Conditions to Buyer s Obligation to Close. Buyer s obligation to Close shall be specifically conditioned on the satisfaction of all of the following conditions prior to the Closing: (a) Ownership of Property. Seller shall have title to and ownership control of the Property. (b) Marketability of Title. Marketability of title to the Property shall have been established in accordance with this Agreement, and Seller shall have satisfied such of Buyer s Title 2

5 Objections as Seller and the Title Company shall have agreed to satisfy or cure pursuant to Section 4.1 below. (c) Survey and Platting. A survey of the entirety of Tax Lot 30, and the platting of said tax lot that is generally consistent with Exhibit A, or as otherwise agreed to by the Parties ( Final Plat ), as appropriate, shall have been completed. (d) Construction Agreement. A construction agreement ( Construction Agreement ) between Seller and Buyer, as referenced in Section 10.3 below, shall have been negotiated and executed which provides that Seller, at its cost, shall be responsible for the design and construction of: (i) the proposed road improvement, which shall provide access to the Property, and (2) such other public improvements that shall be substantially negotiated as part of the Construction Agreement (i.e., subject only to any exhibits related to final surveys or exact construction requirements) prior to expiration of the Feasibility Period. (e) Lot Size and Dimensions. The lot size and dimensions of the Property shall have been mutually determined by Buyer and Seller during the Feasibility Period (as defined below), and any Purchase Price adjustment shall have been established in an amendment to this Agreement signed by the Parties. (f) Zoning/Permitted Use. It shall have been determined by Seller that the current General Commercial (GC) zoning, or rezoned classification, and the Restrictive Covenants for the Business & Technology Park for the Property shall accommodate Buyer s intended use as a Health Care facility. (g) Title Insurance. Buyer is able to obtain title insurance on the Property through the Title Company (h) City Council Approval of Agreement. Within thirty (30) days after Buyer submits this Agreement to Seller for approval, the City Council shall have approved, by resolution, the terms and conditions of this Agreement for the sale and conveyance of the Property ( the Purchase Agreement Resolution ). (i) City Council Approval of Sale/Conveyance and Completion of Remonstrance Period. Within thirty (30) days after approval of the Final Plat, as contemplated in Section 3.4(c) above, City Council shall have approved the sale and conveyance of the Property to Buyer by Ordinance (the Sale/Conveyance Ordinance ), and thereafter the statutory remonstrance period of thirty (30) days after passage and publication of such Ordinance (the Remonstrance Period ) shall have been completed without a valid remonstrance (i.e., petition having been signed by thirty percent of the registered voters of the city objecting to the sale of the Property), as set forth in Neb. Rev. Stat Seller shall advise Buyer of the expiration of the Remonstrance Period. In the event that a valid remonstrance petition is filed and is certified as having been signed by thirty percent of the registered voters of the City, thereby preventing the Property from being sold for one year pursuant to Neb. Rev. Stat , this Agreement shall be deemed to be null and void and the Parties shall have no further obligations to one another under this Agreement or under any other Agreement referenced in this Agreement (e.g., Construction Agreement, Option to Purchase Agreement, Buy-Back Agreement, etc.), and the Escrow Agent shall promptly return the Earnest Deposit to Buyer. (j) Feasibility Period. The Feasibility Period shall have been successfully completed. 3

6 (i) Feasibility Period shall mean a period of one hundred twenty (120) calendar days after the Effective Date of this Agreement, during which time Buyer (or its agents and contractors) shall have the right to enter upon the Property for any testing, surveying, engineering, inspections, and analysis purposes and to review all information including the due diligence documents, the real property survey, the title evidence, soils reports, investigations and analysis, topographical surveys, environmental studies and reports, and any other data, information, documents, plans, agreements, zoning and platting actions, information and reports relating to the Property as Buyer deems necessary. All studies, inspections, and reports ( Other Reports ) ordered by Buyer shall be at Buyer s cost. Buyer shall not undertake, arrange for, or direct any testing which may be invasive or cause damage or destruction to the Property, including damage to growing crops, without Seller s prior written approval; provided, however, that Seller s prior written approval in not required in the event: (i) Buyer elects to perform soil boring tests to determine buildability of the soil, and (ii) a Phase I Environmental Site Assessment recommends that a Phase II Environmental Site Assessment should be performed, and Buyer elects to perform any necessary soil borings or water sampling required for the Phase II Environmental Site Assessment. In the event that Buyer does not close on the purchase of the Property, then Buyer shall promptly repair any damage to the Property or any improvements thereon, arising out of such testing and other feasibility activities. The obligation to make such repairs shall survive any termination of this Agreement. Subject to the terms of Section 8.1 below, Buyer also acknowledges that its testing, surveying, engineering, inspections, analysis of title, and Other Reports performed prior to the Closing are taken at its own risk and cost. (ii) Buyer shall have until the end of the Feasibility Period in order to conduct its due diligence inspections and to determine the suitability of the Property for Buyer s intended use and/or development. Buyer may terminate this Agreement, at its sole discretion, by written notice to Seller and the Escrow Agent at any time prior to expiration of the Feasibility Period, which may be mutually extended. In the event the Earnest Deposit shall be returned to Buyer, neither party shall have any further duties, obligations or rights hereunder, other than indemnity and other obligations that are to survive the termination of this Agreement in accordance with the terms of this Agreement. Upon expiration of the Feasibility Period, the entire Earnest Deposit shall be non-refundable to Buyer other than for breach by Seller of this Agreement. (iii) Seller shall, within the first twenty (20) days of the Feasibility Period, deliver to Buyer copies of, or make available to Buyer in order for Buyer to review and/or to make copies of, the following items that may be in Seller s possession or are reasonably accessible by Seller, to the extent applicable to the Property: (i) the most recent survey or surveyor certificate for the Property, if any and (ii) topographical studies, environmental studies and soil or geotechnical reports, if any, that were prepared for or provided to Seller (collectively the Due Diligence Materials ). (iv) Buyer and Seller shall mutually agree to the final lot size and dimensions of the Property in accordance with Section 3.4(e), estimated to be 1.87 Acres (81,457.2 sqft). (v) Nothing stated herein shall be deemed to grant Buyer the authority to bind the Property with any construction liens related to the testing contemplated hereunder or for any other work related to the Property prior to Closing, and the Parties hereto 4

7 specifically disclaim that any agency relationship exists as between Seller and Buyer with respect thereto. In the event any construction liens are filed as a result of the Buyer s actions under this Agreement, Buyer shall obtain the prompt release of record of any such construction liens as may be filed against the Property. (k) Governmental Approvals. Buyer shall have obtained adequate assurances from the governmental authorities having jurisdiction over the Property, including, but not limited to, the Nebraska Department of Natural Resources, the U.S. Army Corps of Engineers, the Papio-Missouri River Natural Resources District, any watershed district of which the Property is a part, concerning, but not limited to, any questions relating to wetland designated areas, and Sarpy County. Such assurances shall describe that the applicable authorities shall not be imposing any overly burdensome, unreasonable, or unacceptable conditions or restrictions on Buyer s intended use of the Property. (l) Representations and Warranties. All of Seller s representations and warranties set forth in this Agreement shall have been true and accurate as of the date of the Closing. (m) Performance of Covenants. Seller shall have observed and performed all of Seller s covenants and agreements set forth in this Agreement as of the date of Closing. In the event any of the Conditions to Buyer s obligation to Close are not satisfied during the time periods provided herein, Buyer may terminate this Agreement by written notice to Seller and the Escrow Agent, in which event the Seller shall promptly return the Earnest Deposit to Buyer and neither party shall have any further duties, obligations or rights hereunder, other than indemnity and other obligations that are to survive the termination of this Agreement in accordance with the terms of this Agreement. 3.5 Conditions to Seller s Obligation to Close. Seller s obligation to Close shall be specifically conditioned on the satisfaction of all of the following conditions prior to the Closing: (a) Representations and Warranties. All of Buyer s representations and warranties set forth in this Agreement shall have been true and accurate as of the date of the Closing. (b) Performance of Covenants. Buyer shall have observed and performed all of Buyer s covenants and agreements set forth in this Agreement as of the date of Closing. (c) Buy-Back Agreement. A buy-back agreement ( Buy-Back Agreement ) between Seller and Buyer, granting Seller a right to repurchase the Property on the terms stated therein, shall have been negotiated and executed. (d) City Council Approval of Agreement. The City Council shall have approved, by resolution, the terms and conditions of this Agreement for the sale of the Property. (e) City Council Approval of Sale/Conveyance and Remonstrance Period. City Council shall have approved the sale and conveyance of the Property to Buyer, by Ordinance, and the statutory Remonstrance Period as described in Section 3.4(i) shall have been completed without a valid remonstrance petition signed by thirty percent of the registered voters of the city objecting to the sale of the Property. In the event any of the Conditions to Seller s obligation to Close are not satisfied during the time periods provided herein, Seller may terminate this Agreement by notice to Buyer, in 5

8 which event the Seller shall promptly return the Earnest Deposit to Buyer and neither party shall have any further duties, obligations or rights hereunder, other than indemnity and other obligations that are to survive the termination of this Agreement in accordance with the terms of this Agreement. ARTICLE IV SURVEY, PLATTING, AND TITLE 4.1 Buyer s and Seller s obligations under this Agreement are further conditioned upon the satisfaction of all of the following conditions: (a) Surveys. Within twenty (20) days after the Effective Date of this Agreement, Seller shall obtain a current certified ALTA land survey, at Seller s sole cost, showing the boundaries of Tax Lot 30, and location of any improvements and recorded easements thereon (the Survey ). In the event that Buyer desires to obtain a certified ALTA land survey for the Property (the Property Survey ), Buyer shall be responsible for obtaining the same at Buyer s sole cost. (b) Platting. Upon completion of the Original Survey, Seller represents, covenants, and warrants that, at its cost, it shall be responsible for and shall promptly take such actions as necessary or appropriate to plat Tax Lot 30 into separate legally conveyable lots (i.e., Parcels 1, 2, and 3) and to include a public road and right-of-way improvements, that is generally consistent with Exhibit A, by: (i) preparing a Preliminary Plat, (ii) soliciting Buyer s comments regarding the suitability of the Property for Buyer s intended use as a Health Care facility, (iii) revising such Preliminary Plat as Seller and Buyer mutually deem appropriate prior to City Council approval, and (iv) completing the Preliminary and Final platting approval process with the City of Papillion Planning Commission and City Council (collectively, the Platting Approval Process ). The platting documents shall include a metes and bounds legal description of each of the conveyable lots (Parcels 1, 2, and 3) that provides the Surveyed Square Footage of each such lot, exclusive of existing and proposed road right-of-way and roadway easements. The Surveyed Square Footage for the Property is anticipated, although not guaranteed, to be approximately the same as the Assumed Square Footage (i.e., estimated to be 1.87 Acres (81,457.2 sqft), and such Surveyed Square Footage shall be certified to Buyer and the Escrow Agent, and shall be updated, if appropriate, following completion of the platting process of Tax Lot 30. Subject to public hearings and all requirements of law, Seller anticipates that the Survey and platting approval process could be completed within ninety (90) days after the Effective Date of this Agreement; provided, however, Buyer acknowledges that the Seller cannot guaranty the timing or outcomes of the planning commission and City Council processes related to such platting matters. (c) Title Commitment and Insurance. Within thirty (30) days after approval of the Final Plat, Buyer may obtain, at Buyer s expense, a current preliminary title commitment for the Property, including copies of all documents evidencing any exception thereto (the Title Report ) from the Title Company. (d) Title Approval. The Title Approval shall be subject to the following: (i) Within thirty (30) days after Buyer s receipt of the Title Report and Survey (the Title Documents ), Buyer may approve or disapprove (in its sole and absolute discretion) the title matters reflected in the Title Documents for the Property by 6

9 delivering written notice to Seller ( Buyer s Title Notice ) specifying each title defect or matter for which Buyer is requesting a cure by Seller ( Title Defect ) and each Title Company requirement ( Title Requirement ) which Buyer is requesting Seller to satisfy in order for the Title Policy to be issued for the Property at Closing. Any Title Defect and/or Title Requirement identified by Buyer shall sometimes be collectively referred to as the Title Objections. (1) Buyer s failure to deliver Buyer s Title Notice to Seller within the time period specified above shall be a conclusive presumption that Buyer has approved the Title Documents, that Buyer agrees to accept the Property subject to any title matters reflected in the Title Documents, and that this Agreement shall remain in full force and effect. (ii) Within fifteen (15) days after receiving Buyer s Title Notice, if delivered, Seller shall deliver to Buyer written notice ( Seller s Title Notice ) of those Title Objections which Seller covenants and agrees to either eliminate or cure to Buyer s satisfaction by the Closing Date. (1) Seller s failure to deliver Seller s Title Notice to Buyer within the time period specified above shall be deemed to constitute Seller s election not to eliminate or cure any such Title Objections. (2) If Seller elects (or is deemed to have elected) not to eliminate or cure any Title Objections, the Buyer shall have the right, by written notice delivered to Seller within fifteen (15) days of Seller s Title Notice or within fifteen (15) days after the expiration of the time period during which Seller is entitled to deliver Seller s Title Notice, whichever occurs first, to either (a.) waive its prior notice as to the Title Objections which Seller has elected not to cure, or (b.) terminate this Agreement. a. Buyer s failure to deliver any written notice within such 15- day period shall be a conclusive presumption that Buyer has approved the Title Documents and waived any Title Objections and this Agreement shall remain in full force and effect. In the event that the Buyer elects to terminate this Agreement, pursuant to Section 4.1(d)(ii)(2)(b), this Agreement shall be null and void, in which event neither Buyer nor Seller shall be liable for damages hereunder to the other and all Earnest Deposit paid by Buyer shall be refunded to Buyer. Notwithstanding the foregoing, Seller shall have the obligation to remove any mortgage or deed of trust or other lien placed or allowed to attach by or through Seller without the necessity of objection by Buyer. ARTICLE V CLOSING DELIVERIES 5.1 At the Closing, Seller shall deliver to Buyer the following documents: (a) A duly executed and acknowledged Warranty Deed, conveying marketable title to the Property subject only to such covenants, easements, exceptions or conditions of record as 7

10 set forth in the Title Documents and approved by Buyer in writing in accordance with this Agreement (hereinafter Permitted Exceptions ); (b) A standard Seller s Disclosure Statement or Seller s Affidavit relating to the absence of bankruptcies, tax liens, judgments, or other proceedings and unrecorded interests that affect or could affect the title to the Property and which, with the certified Survey, satisfies the Title Company s requirements to remove the standard exceptions from the title policy; (c) An executed and acknowledged Construction Agreement, Buy-Back Agreement, and Option to Purchase Agreement; and (d) All other Seller documents necessary to close this transaction in accordance with the terms of this Agreement and such other documents as are required by the title commitment and/or the Title Company. 5.2 At the Closing, Buyer shall deliver to Seller: (a) Evidence of Buyer s capacity and lawful authority to perform the obligations of this transaction; (b) An executed and acknowledged Construction Agreement, Buy-Back Agreement, and Option to Purchase Agreement; and (c) All other Buyer documents necessary to close this transaction in accordance with the terms of this Agreement. ARTICLE VI EXPENSES TO BE PAID AT OR PRIOR TO CLOSING 6.1 Buyer s Closing Costs. On or before the Closing Date, Buyer shall pay the following to the Title Company or Escrow Agent, if applicable: (a) The balance of the Purchase Price due at Closing as set forth above; (b) All recording fees upon said Warranty Deed; (c) The costs of the Property Survey and any modifications thereto, if any; (d) The entire costs of Other Reports ordered by Buyer, if any; (e) One-half the cost of the Owner s Policy of title insurance; (f) One-half the Closing Protection Letter charged by the Title Company; (g) One-half the Closing Fees charged by the Title Company; (h) The entire cost of Buyer s own wire fees charged by the Title Company; and (i) Any prorations that are the Buyer s obligation to pay. 6.2 Seller s Closing Costs. On or before the Closing Date, Seller shall pay, if applicable: 8

11 (a) The balance of all special assessments levied, pending, or deferred upon the Property at the Closing Date; (b) The costs of the original Survey and any modifications thereto, if any; (c) One-half the cost of the Owner s Policy of title insurance; (d) One-half the Closing Protection Letter charged by the Title Company; (e) One-half the Closing Fees charged by the Title Company; (f) The Commission of the Real Estate Broker; and (g) Any prorations that are Seller s obligation to pay. All such sums not finally determined on the Closing Date shall be reasonably estimated on behalf of Buyer and deducted from all amounts due to Seller at Closing with any necessary final adjustments made between the Parties when actual invoices or billings are available. 6.3 Taxes and Assessments. Seller represents and warrants that there are no real estate taxes due on the Property for With regard to real estate taxes for 2017, if Closing occurs prior to October 15, 2017, the Parties agree that Buyer shall be responsible to pay in full the 2017 real estate taxes assessed on the Property, retroactive to January 1, 2017, without any proration between the Parties. If, however, Closing occurs between October 16, 2017 and December 31, 2017, the Parties agree that neither party shall be responsible to pay any 2017 real estate taxes on the Property. If Closing occurs in 2018 or thereafter, the Parties agree that Buyer shall be responsible to pay in full the real estate taxes on the Property without any proration between the Parties. Furthermore, Seller represents and warrants that there are no outstanding special assessments levied against the Property, thus the Parties agree that there should be no proration of special assessments between Buyer and Seller. ARTICLE VII REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER Seller warrants, represents and covenants as follows, each and every one of which shall be true in all material respects on the Closing Date unless specifically waived in writing by Buyer: 7.1 Absence of Claims. To Seller s knowledge, there are no pending or threatened litigation proceedings, code violations, claims or investigations, including without limitation any such pending or threatened litigation, etc., by any government authority or insurance underwriter and no contract or agreement to which Seller is a party, which relates in any way to the Property or which will adversely affect the Property on or after the Closing Date. 7.2 Title and Authority. Seller owns the Property and has all necessary lawful authority to enter into this Agreement and to sell and convey the Property to Buyer as provided in this Agreement and to carry out Seller s obligations hereunder. 7.3 Agreements of Seller Pending Closing. From the Effective Date until the Closing or the termination of this Agreement, whichever is earlier, Seller covenants and agrees to: 9

12 (a) Not transfer, alienate, encumber or lease (including any extension of an existing lease) the Property or any portion thereof, or grant any right of occupancy for the Property to any person or entity except as otherwise provided in this Agreement; (b) Maintain in good condition, repair, and operating order all improvements that are a part of the Property in the same manner as maintained on the Effective Date; (c) Maintain in full force and effect such insurance policies respecting the Property, if any, as it maintains on the Effective Date; and (d) Shall not create, record or otherwise impose any covenants, easements, or restrictions on the Property. 7.4 Compliance with Agreements. The execution and delivery of this Agreement, the consummation of the transaction herein contemplated, and the compliance with the terms of this Agreement will not conflict with or result in a breach of or constitute a default under any terms or provisions of any indenture, mortgage, loan agreement, or instrument to which Seller is a party or by which Seller or Seller s property is bound, or any applicable governmental regulation or any judgment, order, or decree of any court having jurisdiction over Seller or Seller s properties. 7.5 Hazardous Wastes. Seller further represents and warrants to Buyer that it has not used the Property, and is not aware of any other person s use of the Property, for storage or disposal of any hazardous substance, as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ( CERCLA ), 42 U.S.C. Section , as amended, or any similar state law or local ordinance, in violation of CERCLA or such other laws or ordinances. Except as otherwise set forth in the Due Diligence Materials provided to Buyer in accordance with Section 3.4(j)(iii) above, Seller represents that, to Seller s knowledge without investigation, there are no conditions present or existing on the Property which may give rise to or create environmental hazards or liabilities under the terms of CERCLA or such other laws or ordinances. Additionally, to Seller s knowledge without investigation, there are no underground storage tanks located on the Property and, during Seller s ownership of the Property, Seller has not removed any underground storage tanks from the Property. 7.6 Rights of Tenants. The Property shall not be subject to rights of any tenancies as of the Closing Date. 7.7 Untrue or Not Remedied Representations. If any representation in this Article is found by Buyer, prior to the Closing, to become untrue and is not remedied by Seller prior to the Closing despite Seller s commercially reasonable good faith efforts to do so, Buyer may: (i) terminate this Agreement, in which event the Earnest Deposit shall be refunded to Buyer by Escrow Agent and neither party shall have any further duties, obligations, or rights pursuant to this Agreement (unless otherwise provided herein to survive such termination) or (ii) waive its objections and close this transaction. The representations, warranties, and covenants in this Article VII that are not waived as provided herein shall survive Closing for a period of two (2) years from the date of Closing. Any failure to comply with the representations, warranties, and covenants of this Article shall be considered a breach of this Agreement. ARTICLE VIII REMEDIES OF THE PARTIES 8.1 Buyer s Remedies. If Seller fails or refuses, in violation of this Agreement, to comply with any obligation or duty set forth herein, Buyer shall provide written notice of such default to Seller, whereupon Seller shall have ten (10) days to cure any such default. In the event that any such default is 10

13 not cured within such ten (10) day period, Buyer s remedies shall be to either: (a) terminate this Agreement in writing in the manner provided herein, in which event the Title Company, as Escrow Agent, shall promptly return the Earnest Deposit to Buyer, and the Seller shall promptly reimburse Buyer for up to $50, of documented costs Buyer incurred in performing its due diligence investigation of the Property as of the date of such termination, or (b) file an action in the Sarpy County District Court for specific performance of this Agreement, provided, any such action must be filed within six (6) months from the date of violation of the Agreement by Seller. Except as otherwise set forth herein, in no event shall Seller be liable for any actual, consequential, or punitive damages. 8.2 Seller s Remedies. If Buyer fails or refuses, in violation of this Agreement, to comply with any obligation or duty set forth herein, Seller shall provide written notice of such default to Buyer, whereupon Buyer shall have ten (10) days to cure any such default. In the event that any such default is not cured within such ten (10) day period, Seller s sole remedy shall be to either: (a) terminate this Agreement and to retain as Seller s property the Earnest Deposit as liquidated damages, and such amount shall be forthwith paid to Seller by the Title Company, as Escrow Agent, or (b) submit an invoice to Buyer for prompt reimbursement of up to $50, of documented costs Seller incurred in performing (or preparing to perform) its obligations under this Agreement as of the date of such termination. Notwithstanding the foregoing, except for any indemnity and other obligations that are to survive termination in accordance with the terms of this Agreement, including, but not limited to, the those terms set forth in the Buy-Back Agreement referenced in Section 10.7, in no event shall Buyer be liable for any actual, consequential, or punitive damages except as otherwise set forth herein. ARTICLE IX RISK OF LOSS 9.1 Risk of Loss. All risk of loss by damage or destruction of the Property in this transaction shall remain with Seller until the Closing has occurred and possession of the Property has been delivered to Buyer. In the event any material damage or destruction occurs prior to Closing which substantially changes the character of the Property, Buyer may terminate this Agreement by written notice given to Seller within thirty (30) days after receipt of written notice from Seller that such damage occurred. If Buyer does not elect to terminate this Agreement, Buyer will purchase such Property with no reduction in the Purchase Price regardless of whether such loss is insured. All insurance proceeds, if any, resulting from such damage or destruction shall be assigned in writing by Seller to Buyer, or if previously paid to Seller, then paid by Seller to Buyer at Closing, and the Purchase Price shall be reduced only by the deductible amount if such loss was insured. Buyer will accept conveyance of the Property in its damaged condition upon Closing. In the event any damage occurs, Seller will advise Buyer within ten (10) days thereafter of the insurance coverage for such damage and will provide Buyer with copies of such insurance policies. ARTICLE X MISCELLANEOUS 10.1 Permitted Use. The sale of the Property is contingent upon Buyer s use of the Property for a period of at least five (5) years or as otherwise mutually agreed upon in writing by the Parties (the Restricted Use Period ) for a Health Care facility, offering medical services ( Buyer s desired use ), which Seller represents is a permitted use for the Property s current General Commercial (GC) zoning. During the first thirty (30) days of the Feasibility Period, Seller and Buyer shall work in good faith to determine whether to seek a change of zone from GC zoning to Office (O) zoning for the Property. In the event that Seller and Buyer do not mutually agree upon the zoning for the Property during such 30-day period, either party shall have the right to terminate this Agreement by providing written notice to the other party prior to expiration of such 30-day period. Any use of the Property, other than for a Health 11

14 Care facility, by Buyer, or its successor or assigns, during the Restricted Use Period after Buyer has received a certificate of occupancy for its Health Care facility, shall require written approval of Seller which shall not be unreasonably delayed or withheld. The Restricted Use Period shall commence after Buyer receives a certificate of occupancy for its Health Care facility. Buyer acknowledges that, prior to any modifications, additions, or demolitions to the Property which will materially change the Buyer s desired use of the Property after the expiration of the Restricted Use Period, Buyer, or its successor or assigns shall be subject to all provisions of the City of Papillion s Zoning and Building regulations and Restrictive Covenants for the Business & Technology Park. This subsection shall survive the Closing and termination of this Agreement Design Standards. This Agreement is contingent upon Seller s review and approval of Buyer s preliminary site and design plans. Buyer agrees to adhere to the design standards required for Buyer s desired use of the Property as a Health Care facility. Pertinent Design standards include, but are not limited to, the Restrictive Covenants for the Business & Technology Park, as well as all provisions of the City of Papillion s Zoning and Building regulations. Prior to construction, Buyer is responsible for obtaining all site plan and building plan approvals from the City of Papillion and, if necessary, approvals from any other governmental agency having jurisdiction over the Property. Seller shall work in good faith with Buyer to review and approve of Buyer s preliminary site and design plans, provided that such site and design plans comply with the standards set forth in this Section Access and Public Improvements. This Agreement is contingent upon Buyer securing sufficient assurances that the Property will be benefited by public road access and standard water, storm sewer, and sanitary sewer improvements (the public improvements ) for Buyer s desired use. The Parties shall enter into a separate Construction Agreement, which provides that Seller shall be responsible for construction of the public road, generally consistent with Exhibit A, to provide public access to the Property. During such road construction Seller shall also install public improvements under or adjacent to the road, and the costs associated therewith shall be at Seller s cost. (a) Seller s Obligation to Commence Construction. Seller s obligation to commence construction of a proposed public road and public improvements as set forth in this Section 10.3 shall commence, after Closing, upon Buyer s receipt of an approved building permit, all as further described in the Construction Agreement (the Construction Deadline ); provided, however, in the event Buyer or Buyer s successors or assigns sends notice to Seller at any time after the Closing or after Buyer s receipt of an approved building permit that it (i) intends to use the Property for any use other than for a Health Care facility as agreed under this Agreement, or (ii) elects not to construct a Health Care facility on the Property as provided under this Agreement, Seller shall no longer be obligated to commence construction of a proposed public road and public improvements as set forth in this Section In the event that the Seller does not commence construction of the proposed public road and public improvements on or before expiration of the Construction Deadline as set forth in this Section 10.3, then Buyer shall have the option to either (i) extend the Construction Deadline by mutual agreement with the Seller, or (ii) complete such construction for the public road and public improvements, whereby Seller shall reimburse Buyer for all such constructions costs in the manner further described in the Construction Agreement. (b) Intersection Improvements. The Parties acknowledge that on the Effective Date of this Agreement, the existing median at the intersection of the proposed public road and Cornhusker Road (the Median ) is currently constructed for full access, which would allow both eastbound and westbound traffic on Cornhusker Road to turn south onto the proposed public road (which will be installed between Cornhusker Road and American 12

15 Parkway (the New Road )). The Parties further acknowledge that it is unknown at this time whether the New Road to be installed by the Seller will ever result in recurring issues with westbound traffic stacking up and impacting traffic on 72 nd Street due to the inability of westbound traffic (when turning south to access the New Road) to safely cross the eastbound lane of Cornhusker Road. Accordingly, in the event that Seller ever determines that modifications or improvements are warranted to Cornhusker Road (north of the New Road) for the public s health, safety and welfare, Seller shall work in good faith with Buyer to determine the feasibility of (i) adding a fully signalized intersection, or (ii) adding a left turn lane for westbound traffic on Cornhusker Road, or (iii) modifying the Median to restrict full access between Cornhusker Road and the New Road. In the event that Seller and Buyer do not agree upon a proposed solution and the party(ies) responsible for any costs related to the same, then Buyer shall not oppose any future modifications or improvements to such intersection by Seller if such modifications or improvements are paid for by Seller. Buyer shall not be required to obtain any traffic impact study or pay for any such intersection modifications or improvements which may be desired by the Seller. This Section shall survive the Closing and termination of this Agreement Utilities. This Agreement is contingent upon Seller and Buyer confirming that water, sewer and power requirements necessary for Buyer s desired use of the Property as a Health Care facility are available to the Property. The capacity/size/depth of the utilities shall be satisfactory for Buyer s desired use. In the event that public improvements are not currently available to the Property, Seller agrees to install such standard public improvements as required by City Code when constructing the road as set forth in Section 10.3 above; provided however that in the event Buyer desires public improvements or utilities which are above and beyond those standards required by City Code, Buyer shall provide timely notice of its desire for such upgrades to Seller, and such upgrades shall be at Buyer s cost. The Parties acknowledge that any other utilities, including, but not limited to electrical or gas lines, shall be privately installed by the applicable third-party utility vendors and any costs for such utilities shall be paid for by Buyer as they relate to the Property Commencement of Buyer s Construction. Subject to force majeure events and obtaining all necessary construction permits from Seller (or other municipal entities, if applicable), Buyer covenants and agrees to commence construction of its proposed Health Care facility, having a Minimum Completed Building Area of no less than 9,500 square feet, on the Property not later than twelve (12) months after the date of in which Buyer has access to the Property for the purposes of construction as determined by the City Engineer (the Access Date ). For purposes of this Section, (i) commence construction shall mean the pouring of the footings and foundations for the facility, (ii) access to the Property shall mean that Seller has installed a temporary entrance from American Parkway onto the south end of Tax Lot 30 which allows Buyer to access the Property prior to installation of the New Road, and (iii) Seller shall provide written notice to Buyer when it commences construction of the temporary access to Tax Lot 30 and when it completes the same Completion of Buyer s Construction. Subject to force majeure events and obtaining all necessary construction permits from Seller (or other municipal entities, if applicable), Buyer covenants and agrees to complete construction of its proposed Health Care facility, as described in Section 10.5 herein, which shall include any landscaping, paving, curbing and fencing as required, not later than twenty-four (24) months after the Access Date to the Property Buy-Back Agreement. Pursuant to the terms of a Buy-Back Agreement entered into between Seller and Buyer, all as contemplated in Section 3.5(c) above, Buyer shall grant Seller the right to repurchase the Property from Buyer for a period of five (5) years after Closing in the event that (a) 13

16 Buyer does not commence construction of its proposed Health Care facility, as described in Section 10.5 herein, within twelve (12) months after the Access Date to the Property, (2) Buyer or Buyer s successors or assigns sends notice to Seller that it intends to use the Property for any use other than for a Health Care facility as agreed under this Agreement, or (3) Buyer sends written notice to Seller after Closing that it elects not to construct or use the Property for Buyer s proposed desired use of the Property for a Health Care facility (each, a triggering event ). In the event of an occurrence of a triggering event and Seller thereby elects to buy back the Property, Seller shall repurchase the Property pursuant to the terms (e.g., purchase price, time to exercise right) as set forth in the Buy-Back Agreement. This Section shall survive the Closing and termination of this Agreement Option to Purchase Agreement. Pursuant to the terms of an option agreement executed by and between Seller and Buyer at Closing ( Option Agreement ), Seller shall grant Buyer a valid four (4) year option to purchase additional property owned by Seller, depicted and identified as Parcel 2 on Exhibit A, attached hereto. A Memorandum of the Option Agreement shall be filed of record against Parcel 2 on the Closing Date, all in accordance with terms mutually agreed upon by the Parties Property within City Limits. Seller represents that the Property is located within the boundaries of the City of Papillion, and is not situated within the boundaries of a Sanitary and Improvement District No Assignment. Seller acknowledges that Buyer may assign this Agreement to another entity which is affiliated with Buyer (or Buyer s owners) at or before Closing with written notice to City within thirty (30) days of such assignment. Provided that any such affiliate agrees to fulfill the terms of this Agreement, Buyer may assign this Agreement to its affiliate without the consent of Seller; provided, however, Buyer shall remain liable for performing the obligations under the terms of this Agreement in the event that Buyer s assignee fails to do so. Except as otherwise set forth in this Section 10.10, Buyer may not assign or otherwise transfer all or any of its interest or obligation under this Agreement to any other third party without the prior written consent of Seller. If Seller agrees to any such assignment, Buyer shall remain responsible under this Agreement until Buyer s assignee assumes in full and in writing all of the obligations of Buyer under this Agreement to the satisfaction of Seller. Any attempted assignment by Buyer in violation of this provision shall be void and of no effect Notices. All notices and other documents of similar legal import from either of the Parties hereto to the other shall be in writing and considered to have been duly given or served if personally delivered or shall be deposited in the United States Mail, postage prepaid, return receipt requested, and addressed as set forth below, or to such other address as such party may hereafter designate by written notice to the other party, and shall be effective on the date of such deposit or the date of delivery, as the case may be: To Seller: To Buyer: With a copy to: City of Papillion Attn: City Clerk 122 East Third Street Papillion, NE Family Emergency Rooms, LLC Attn: President 3620 E. Whitestone Blvd. Cedar Park, TX Koley Jessen P.C., L.L.O. Attn: Thomas F. Ackley 14

17 1125 S. 103 rd Street, Suite 800 Omaha, NE Broker s Commission. The Buyer and Seller acknowledge that Bryan D. Hartmann, CCIM, of NAI NP Dodge Commercial Real Estate, is the real estate broker who has been providing dual representation to the Parties in connection with the purchase and sale of the Property, and thus he has been representing both Buyer and Seller ( Real Estate Broker ) in this transaction. The Parties agree that a real estate commission (the Commission ) will be paid to the Real Estate Broker at the time of transfer of the Property, and the Parties hereby instruct the Escrow Agent to pay the Commission at such time in accordance with the listing agreement between the Seller and the Real Estate Broker. Except for the Real Estate Broker described above, the Parties each acknowledge and agree that they have not worked with any other broker, agent or other party who may claim a fee or commission arising from the sale of the Property. Except for the Commission as set forth above, each party agrees to indemnify and hold the other party harmless from and against any such fees or commissions, including reasonable attorney fees and court costs incurred, should any such expense arise other than as contemplated in this Section. The provisions of this subsection shall survive Closing and any termination, cancellation or rescission of this Agreement Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. This Agreement shall survive Closing and shall not be deemed to be merged into any deed or other document delivered at Closing Exchange. In the event that Buyer elects to acquire the Property in a so-called tax-deferred exchange pursuant to IRS Code Section 1031, then Seller agrees to cooperate in facilitating said exchange and, as an accommodating party, shall be indemnified and held harmless by Buyer and shall incur no cost or expense by reason of Buyer s exchange Headings. The headings of the paragraphs and subparagraphs of this Agreement are for convenience of reference only and do not form a part hereof, and in no way interpret or construe such paragraphs and subparagraphs Entire Agreement; Exclusivity. This instrument constitutes the entire agreement of the Parties and supersedes any prior understandings or written or oral agreements between the Parties respecting the sale and purchase of the Property, and this Agreement cannot be modified except in writing signed by all of the Parties to this Agreement. Upon acceptance of the Agreement by Buyer, Seller agrees to exclusively deal with Buyer with regard to the Property for the duration of the Agreement Waiver. No failure or delay on the part of any party hereto in exercising any power or right hereunder shall operate as a waiver thereof, unless specifically provided in this Agreement Authorized Representatives. Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party s obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument. 15

18 10.20 Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein Conveyance of Title. This Agreement shall not, by itself, be construed as a conveyance of title by Seller to Buyer Governing Law. The Parties to this Agreement shall conform to all existing and applicable City of Papillion, Nebraska ordinances and resolutions, state and federal laws, and all existing and applicable rules and regulations related to the Property. Any dispute arising from this contractual relationship shall be governed solely and exclusively by Nebraska law except to the extent such provisions may be superseded by applicable federal law, in which case the latter shall apply Forum and Personal Jurisdiction. Any dispute arising from this contractual relationship shall be solely and exclusively filed in, conducted in, and decided by the courts located in Sarpy County, Nebraska. As such, the Parties also agree to exclusive personal jurisdiction in the courts located in Sarpy County, Nebraska Time is of the Essence. Time is of the essence regarding the payment and performance of this Agreement; provided, however, in the event that any action required by a party falls on a Saturday, Sunday or legal holiday in the State of Nebraska, the deadline for such action shall be extended to the first business day after the applicable weekend or holiday Conflicts Acknowledgment and Waiver. Each party acknowledges that (i) Koley Jessen P.C., L.L.O. ( Koley Jessen ) reviewed this Agreement on behalf of and in its capacity as counsel for Buyer, (ii) Koley Jessen has previously performed certain legal work on behalf of both Seller and Buyer which is unrelated to this Agreement, (iii) conflicts of interest may arise in the future between Seller and Buyer with regard to the terms of this Agreement and/or with regard to other matters unrelated to this Agreement, and (iv) by entering into this Agreement, each party agrees that: (a) Koley Jessen may continue to represent the Seller and Buyer in other matters unrelated to this Agreement and unrelated to each other; (b) Koley Jessen represents the Buyer with regard to its due diligence review and acquisition of the Property under the terms of this Agreement, and Koley Jessen does not represent the Seller under the terms of this Agreement; and (c) In the event of any dispute between Seller and Buyer under the terms of this Agreement which leads to litigation, Koley Jessen shall not represent either party in such litigation. Additionally, Koley Jessen may discontinue its representation of Buyer in this matter in the event that Koley Jessen believes it is necessary to do so in accordance with the Nebraska Rules of Professional Conduct. [The Remainder of This Page Intentionally Left Blank; Signature Page Follows] 16

19

20 Exhibit A