25.06.03 TOA - Eagle River Valley Childcare Land Lease (Vail Valley Foundation) Avon-ERVC Land Lease June 2, 2025 Page 1 of 44
LAND LEASE Eagle River Valley Childcare Planning Area E, Village (at Avon)
THIS LAND LEASE (“Lease”) is made and entered into by and between the Town of Avon, a Colorado home rule municipality ("Avon") and Eagle River Valley Childcare, a Colorado nonprofit corporation ("ERVC"), collectively referred to as the “Parties”, on June 2, 2025 (“Effective Date”).
RECITALS
WHEREAS, Avon is the owner of certain property described in EXHIBIT A: Legal Description consisting of approximately 3.5 acres of land in the Town of Avon, Eagle County, Colorado, a portion of which land will be leased by Avon to ERVC, as further depicted on EXHIBIT B: Depiction of the Leased Land (“Leased Land”).
WHEREAS, Avon and ERVC recognize that there is a significant shortage of early childhood education facilities and capacity to serve the Avon and other adjacent communities in the Vail Valley area, which is documented in detail in the 2021 Regional Assessment of Child Care Industry, prepared by Northwest Colorado Council of Governments, which shortage impacts working households with children aged 0-5 years and impacts employers; and
WHEREAS, Avon desires to incentivize and partner with ERVC to support the construction and operation of an early childhood education facility on the Leased Land; and
WHEREAS, ERVC desires to construct and hire a qualified third-party operator to manage all aspects of an early childhood education facility on the Leased Land to better meet the needs of Avon and surrounding adjacent communities.
NOW, THEREFORE, in consideration of the recitals above and the mutual promises contained in this Lease, Avon and ERVC agree as follows:
1. LEASE GRANT AND TERM
A. GRANT. Avon hereby demises and leases the Leased Land to ERVC and ERVC does hereby lease and take from Avon the Leased Land subject to the terms and conditions in this Lease, subject to all easements of record on the Leased Land existing as of the Effective Date, and subject to title insurance exceptions listed in EXHIBIT A: Legal Description. All improvements constructed on the Leased Land will be solely owned by ERVC during the term of this Lease.
B. TERM. This Lease shall be for a period of fifty (50) years (“Term”), commencing on May 13, 2025 (“Commencement Date”).
2. LAND DELIVERY; CONSTRUCTION
A. DELIVERY. Avon shall deliver the Leased Land to ERVC, and ERVC shall accept the Leased Land from Avon, in its “AS IS”, “WHERE IS” condition, without any representation or warranty of any kind by Avon on May 13, 2025 (“Avon’s Delivery Date”).
Avon-ERVC Land Lease June 2, 2025 Page 2 of 44
B. CONSTRUCTION. ERVC shall thereafter construct on the Leased Land an early childhood education facility and all related improvements (the “Facility”) in accordance with ERVC’s Plans (as defined in Section 4.A below) and in compliance with applicable laws. ERVC acknowledges the cost of such development, construction, and improvements shall be at ERVC’s sole cost and expense, except Avon shall be responsible for the following costs:
i. Construction of bus stop; and
ii. Installation of photovoltaics, batteries and battery capacity and related electric work and equipment; and Avon shall receive any and all rebates from Holy Cross Energy, and/or State, Federal or other funding sources, for installation of photovoltaics, batteries and related equipment (the Holy Cross Energy rebate is estimated to be $12,500) and ERVC shall be entitled to receive the Holy Cross Energy monthly rebate (estimated to be $250 per month) paid to ERVC by Holy Cross Energy after the Facility is operational, and ERVC may retain any future rebates from funding sources after the Facility is operational; and
iii. Reimbursement to ERVC for the portion of tap fees specific to housing in the amount of $114,000 and reimbursement for Plan Check and Building Permit that were pre-paid by ERVC for both the childcare center and the housing concept in the amount of $113,836.70; and
iv. A contribution in the amount of FOUR HUNDRED THOUSAND DOLLARS ($400,000.00) towards the cost of construction, or if not needed for construction then to be pledged to the ERVC Tuition Assistance Fund to provide tuition assistance for low income households, which contribution shall be in the form of a pledge of tax increment revenues from the Avon Downtown Development Authority and shall be payable as the Avon Downtown Development Authority receives funds, but shall be not more than $200,000 per calendar year in 2025 and 2026, and such contribution shall be subject to and conditioned upon a separate agreement between the Town of Avon and the Avon Downtown Development Authority; and
v. Complimentary Avon Recreation Center passes on an annual basis for all full-time employees of the Facility.
C. CONSTRUCTION TIMELINE. ERVC’s construction of the Facility shall commence on or before May 1, 2026. Commencement of construction shall mean submitting a complete application for a building permit. Construction shall be completed by the end of calendar year 2027 (“Construction Completion”). Construction Completion shall be defined as substantially completing the construction shown in the building permit and obtaining a Certificate of Occupancy (including a Temporary Certificate of Occupancy) from the Town of Avon.
D. ACCESS AND MONITORING OF CONSTRUCTION. Avon and/or Avon's agents shall have the right to enter the Leased Land or the Facility upon reasonable prior written notice to ERVC at all reasonable times during normal business hours to monitor and review the construction process.
Avon-ERVC Land Lease June 2, 2025 Page 3 of 44
3. RENT; TAX AND FEE WAIVERS.
A. Rent. ERVC shall pay to Avon One Dollar and 00/100 ($1.00) as rent for the Term of the Lease which shall be tendered in cash at the time of executing the Lease.
B. Tax Waivers. Avon agrees to waive the Town’s Use Tax, Sales Tax and Real Estate Transfer Tax as may be applied to this Lease and the construction of the Facility.
C. Fee Waivers. Avon agrees to waive development application review fees and building permit fees that may be otherwise applicable to the construction of the Facility.
4. ERVC’S PLANS AND ERVC’S WORK. ERVC shall be solely responsible for the preparation of the final drawings, plans, and specifications for the design and construction of the Facility (except as provided otherwise in Section 2.B above), including all required mechanical, electrical, and plumbing drawings (collectively, “ERVC’s Plans”), which such ERVC’s Plans shall be prepared by qualified architects, engineers, and consultants and shall be the sole cost and expense of ERVC. ERVC shall construct the Facility, including the building and other improvements benefitting or used during the operation of the Facility (except as provided otherwise in Section 2.B above), in accordance with ERVC’s Plans (collectively, “ERVC’s Work”). ERVC shall diligently pursue the preparation of ERVC’s Plans from and after the Effective Date of this Lease.
A. All-Electric, Energy Efficient Design. ERVC shall ensure that ERVC’s Plans are prepared and ERVC’s Work is performed with products, equipment and materials that meet and/or exceed ENERGY STAR specifications, Federal Energy Management Program (“FEMP”) designated guidelines, and the Town of Avon’s building codes. ERVC shall provide products, equipment and materials that earn the ENERGY STAR label and meet the ENERGY STAR specifications for energy efficiency. ERVC shall use only products, equipment and materials that are electric in ERVC’s Plans and in the performance of ERVC’s Work. ERVC shall not use natural gas or other fossil fuels for heating, cooling or any other operations of the Facility. Notwithstanding the foregoing, ERVC may use fossil fuels during the construction of the Facility.
B. Plan Review Period. ERVC shall deliver to Avon a true and accurate copy of ERVC’s complete Plans for Avon’s review and approval by March 1, 2026. Avon shall have twenty (20) days from the date of receipt of ERVC’s Plans to review and approve or disapprove of ERVC’s Plans (“Plan Review Period”). Avon will notify ERVC in writing if Avon disapproves of ERVC’s Plans with a reasonably detailed description of the reasons for disapproval. ERVC shall then resubmit revised ERVC Plans and Avon shall again have twenty (20) days to review and approve or disapprove the resubmitted and revised ERVC Plans. Such process shall be followed until ERVC’s Plans have been approved by Avon.
C. Plan Modification. Once ERVC’s Plans have been approved by Avon, ERVC shall not materially modify or amend ERVC’s Plans without the prior written consent or approval of Avon.
D. Disclaimer. Approval by Avon of ERVC’s Plans and ERVC’s Work shall not constitute any warranty by Avon to ERVC of the adequacy of the design, ERVC’s Plans, or ERVC’s Work for ERVC’s intended use of the Leased Land or Facility, nor shall Avon’s approval of ERVC’s Plans
Avon-ERVC Land Lease June 2, 2025 Page 4 of 44
create any liability or responsibility on the part of Avon for compliance with applicable statutes, ordinances, regulations, laws, codes, zoning, or industry standards.
5. USE; OPERATOR
A. Early Childhood Education. It is covenanted and agreed between the Parties that the Leased Land and Facility shall be used primarily as an early childhood education facility serving children 0-5 years of age, with capacity for at least one hundred and sixty (160) children, and may be used for other lawful complimentary uses such as after school care, week-end child care, parent education classes, community meetings, and youth gathering space provided that such complimentary uses do not detract from the primary early childhood education facility use (“Permitted Use”). The Permitted Use shall be conducted at all times in accordance with the laws of the State of Colorado, any applicable licensure requirements, the laws of the Town of Avon and any other applicable federal, state or local laws.
B. Operator. Avon and ERVC acknowledge that ERVC will contract with Access Early Education Foundation (“Operator”) to operate ERVC’s Facility on the Leased Land specific to the Permitted Use as defined in this Agreement. Avon participated in the Operator selection process and Avon and ERVC have agreed to contract Access Early Education Foundation as the Operator. If ERVC decides to no longer have Access Early Education Foundation as the Operator, Avon shall have the right to participate in any new Operator selection process and Avon and ERVC shall both agree on the selection of any new Operator during the Term. Avon shall have the right to participate in any ERVC meetings that may involve the Operator, its performance, and any decisions associated with operations at the Leased Land or Facility. ERVC shall cause the initial Operator to open and operate the Facility within six (6) months of Construction Completion. An Operator may be removed and replaced from time to time during the Term by ERVC in its sole discretion; provided, however, a replacement Operator and Operator Agreement (as defined below) shall be subject to the terms and conditions of this Section 5.
C. Operator Agreement. ERVC agrees to provide a draft of a sub-lease and operator agreement (“Operator Agreement”) to Avon for review and approval prior to executing an Operator Agreement. Avon agrees to review and approve or disapprove the Operator Agreement within twenty (20) days of receipt. Avon will notify ERVC in writing if Avon disapproves of the Operator Agreement with a description of the reasons for disapproval. The Operator Agreement shall be deemed automatically approved by Avon if Avon does not respond within twenty (20) days of receipt of the Operator Agreement. The Operator Agreement shall have the following minimum terms:
i. The Operator Agreement shall acknowledge this Lease and the terms of such Operator Agreement shall be consistent with the terms of this Lease. Such acknowledgement shall include recognition of the events of default and Avon’s remedies, including termination of the Lease and recovery of the Leased Land.
ii. The Facility shall be regularly opened on Monday through Friday from at least 7:30 am to 5:30 pm, excluding legal holiday days recognized by the State of Colorado and seasonal school closures that do not exceed forty (40) weekdays per calendar year. Avon and ERVC
Avon-ERVC Land Lease June 2, 2025 Page 5 of 44
may agree to a different schedule depending upon the needs of the regional community and or resources of the Facility Operator. Temporary closures due to repairs, inclement weather, labor shortages or disruptions, or other unforeseen causes are permissible but shall not exceed thirty (30) aggregate days in a calendar year unless a greater number of days is approved by Avon in writing.
iii. The initial tuition fees and any other costs shall be defined and the process for proposing and reviewing increases to tuition fees and costs shall be defined.
iv. The minimum standards and procedures to determine and verify qualified employees of the Operator shall be defined.
v. Obligation to pay utility costs and obligation to pay maintenance, repair and replacement costs shall be defined.
vi. Minimum insurance coverage and obligations shall be defined.
vii. Indemnification of Avon and ERVC for all activities of the Operator shall be included.
D. Documents. ERVC shall provide Avon with the annual budget and any required annual certification for the Operator and/or ERVC for operations at the Facility each year and without any further request by Avon. Avon may submit written requests for more information, which ERVC shall provide within thirty (30) days of receipt of such request. ERVC agrees to promptly forward to Avon copies of all executed agreements and contracts with the Operator.
E. Enrollment Assistance. The Operator Agreement shall include an obligation to provide “Enrollment Assistance” for at least sixteen (16) children from households that can demonstrate financial need or hardship in accordance with guidelines defined in the Operator Agreement. Enrollment Assistance shall be in the form of at least a 50% reduction of the regular enrollment rate. The Operator Agreement shall include an obligation that the Operator agrees (1) to actively pursue and apply, each school year, for all available and appropriate tuition assistance programs from Federal, State, local government,, private third-parties and non-profit corporations sources in order to provide Enrollment Assistance for at least thirty-two (32) children each school year ; (2) that the Operator agrees to provide Enrollment Assistance for at least sixteen (16) children each school year regardless of Enrollment Assistance funds received; and, (3) that Operator’s obligation to provide Enrollment Assistance for more than sixteen (16) children each year will depend upon Enrollment Assistance received and financial resources of the Operator. Avon and ERVC may agree in writing to an alternate program for enrollment assistance.
F. Town of Avon Priority Enrollment. Priority enrollment shall be offered to the Town of Avon according to the following terms and procedures:
i. ERVC shall require the Operator to provide priority enrollment to the Town of Avon for up to twenty-four (24) children each year. “Priority enrollment” shall mean the right to have first priority for any available student enrollment positions over any other agreements or
Avon-ERVC Land Lease June 2, 2025 Page 6 of 44
obligations of ERVC or the Operator concerning enrollment. Avon’s priority enrollment shall be available first for children of Town of Avon employees and other Town officials, and then shall be available for children of Town of Avon residents and owners and employees of Town of Avon businesses with a physical address in Avon, in accordance with such policies as Avon may adopt in its sole discretion. Priority enrollment shall only be for available unfilled enrollment positions and shall not displace any previously and continuously enrolled child.
ii. Annually, between November 15 and December 15, Avon shall receive notice of available student positions for enrollment and shall have fourteen (14) business days to elect to fill such available student position(s). Avon shall receive notice of enrollment availability at such other times when vacancies and available enrollment positions occur, and Avon has not fully utilized its 24 priority enrollment positions. Based on the availability of overall Facility enrollment positions or the specific availability of infant, toddler or preschool enrollment positions, the Operator may not be able to guarantee Avon the full 24 spots every year if Avon released a portion of its priority enrollment positions to the Operator in the prior year. ERVC and the Operator will provide continuous enrollment priority and guarantee for any of the twenty-four (24) enrollment positions that are actually used by Avon each year.
iii. The twenty-four (24) priority enrollment Avon employees, Town officials, Avon residents and employees of Avon businesses shall receive a $10 discount off the published daily tuition rates and shall not have to pay the annual application enrollment fee which is estimated at approximately $100 per child per year.
iv. Avon shall manage the allocation of available priority student enrollments amongst the Town of Avon employees, Town officials, residents of Avon and business owners and employees of businesses physically situated in Avon. Any person utilizing the Town of Avon Priority Enrollment shall pay the full regular tuition and fees unless they qualify for state or federal tuition assistance subsidy and/or tuition assistance from the ERVC Tuition Assistance Fund.
v. Any of the twenty-four (24) priority enrollment spots per year not used by Avon shall be available to other children.
vi. The terms and procedures of the Town of Avon Priority Enrollment rights shall be included in the Operator Agreement.
G. Rights Personal. The rights of Avon under this Article 5 are personal to Avon, and do not run with ownership of the Leased Land.
6. UTILITIES. ERVC shall be responsible for all utility costs associated with the Leased Land and Facility, including but not limited to water, wastewater, electric, telephone, cable, internet, trash, and recycling and including all associated tap fees, development fees and costs for connection, disconnection and changes to any utility connections or services, except as expressly provided in 3.C. Avon shall have no responsibility of any kind for any such utilities or fees.
7. REPAIRS AND MAINTENANCE. ERVC shall be responsible for all maintenance, repair and replacement of the Facility and the Leased Land, including but not limited to, HVAC equipment, utility
Avon-ERVC Land Lease June 2, 2025 Page 7 of 44
systems within the Facility, roofing, doors, windows, exterior siding, exterior painting or staining, appliances, fixtures, ceilings, walls, floor coverings, fire suppression system, CO2 monitoring system, security system, sidewalks, parking areas, landscaping, signage, photovoltaic system, battery storage, and all outdoor play areas.
8. FURNITURE, TRADE FIXTURES, AND EQUIPMENT. ERVC shall have the right at any time to erect, install and replace trade fixtures, furniture, and equipment providing that ERVC complies with all applicable governmental laws, ordinances and regulations. At the expiration or earlier termination of this Lease, ERVC shall have the right to remove such items so installed, provided ERVC is not in default at the time of such removal and that ERVC shall repair in a good and workmanlike manner any damage caused by removal thereof.
9. SIGNS. ERVC shall not construct, erect or maintain any signs on or about the Leased Land without first having obtained Avon’s approval and the necessary permits and licenses from Avon. ERVC shall have the right to remove such signs upon expiration or termination of the Lease, provided ERVC is not in default at the time of such removal and that ERVC shall repair in a good and workmanlike manner any damage caused by removal of signs.
10. ALTERATIONS. ERVC may make alterations or changes to the Facility provided that ERVC may not make any additions, structural alterations or any alterations requiring a building permit without Avon’s prior written consent.
11. TAXES. ERVC shall pay all taxes, assessments, levies and other charges, general and special that may be assessed and levied by the State, County, Town of Avon or other local government on the Facility during the Term of this Lease. The real estate taxes for the initial year of the Lease and for the final year of the Lease shall be prorated, with ERVC responsible only for the period of the tax year payable during which the Leased Land is leased by ERVC on and after the Commencement Date. It is further provided that ERVC shall be responsible and liable for all personal property taxes assessed for the tangible property of ERVC on the Facility during the Term of this Lease. ERVC may, at its sole cost and expense, dispute and contest any “taxes” or “tax assessments” by appropriate proceedings diligently conducted in good faith. Any credits, rebates, or abatements shall be for the benefit of ERVC. If ERVC desires to contest any tax or assessment to be paid by it, it shall notify Avon of its intention to do so at least twenty (20) days prior to the delinquency of such tax assessment. Withholding of tax payments during any period where such taxes are contested or disputed will not constitute an event of default unless doing so is not permissible under the requirements for contesting or disputing such taxes. Within twenty (20) days after the final determination of the validity thereof, ERVC shall pay and discharge such tax, assessment, charge, or other item to the extent held valid, and all penalties, interest and costs in connection therewith. Avon with cooperate with ERVC should ERVC elect to pursue tax exemption for the Facility. If Tenant determines in its sole discretion that partial ownership of the Facility by Avon is necessary or desirable to obtaining tax exemption for the Facility, ERVC may quit claim an undivided de minimis ownership interest in the Facility to the Town of Avon at the time of receiving a Certificate of Occupancy with the expectation that the Facility will be exempt from property taxes. ERVC and Avon shall work together cooperatively to execute other documents and take such other actions as may be necessary to achieve property tax exempt status of the Facility.
Avon-ERVC Land Lease June 2, 2025 Page 8 of 44
12. NO MECHANICS’ LIENS. ERVC shall keep the Leased Land and Facility free and clear of all liens and claims of liens for labor, services, materials, supplies, or equipment performed on or furnished to the Leased Land and Facility at ERVC’s request. If any such lien exists, ERVC shall, within twenty (20) days after ERVC’s receipt of notice of such lien, have such lien discharged of record or deliver to Avon a recordable bond in form, amount, and issued by a surety reasonably satisfactory to Avon, indemnifying Avon against all costs and liabilities resulting from such lien and the foreclosure or attempted foreclosure thereof. If ERVC fails to have such lien released or to deliver such bond to Avon, Avon, without investigating the validity of such lien, may pay or discharge the same; and ERVC shall reimburse Avon upon demand for the amount paid by Avon, including expenses and reasonable attorneys' fees.
13. LEASEHOLD FINANCING
A. Mortgage by Tenant. ERVC may hypothecate, mortgage, pledge, or alienate ERVC’s leasehold estate and rights hereunder and its ownership interest in the Facility only in accordance with the requirements of this Lease until December 31, 2033 (“Maturity Date”). Any such lien shall be referred to herein as a “Leasehold Mortgage” and the holder or holders of any such lien shall be referred to herein as a “Leasehold Mortgagee.” The Leasehold Mortgagee’s interest in the Leased Land and this Lease shall not encumber Avon’s fee interest of the Leased Land or interest as Avon under this Lease. A Leasehold Mortgage shall encumber no interest in the Leased Land other than ERVC’s interest in the Lease and ERVC’s ownership interest in the Facility, including any personal property of ERVC, and any subleases of portions of the Leased Land. A Leasehold Mortgagee or its assigns may enforce such lien and acquire ERVC’s ownership interest in the Facility, the leasehold estate and all of ERVC’s rights under the Lease in any lawful way and, pending foreclosure of such lien, the Leasehold Mortgagee may take possession of and operate the Facility and the Leased Land, performing all obligations performable by ERVC, and upon acquisition of the leasehold estate in accordance with applicable law, the Leasehold Mortgagee may, upon notice to Avon, sell and assign the leasehold estate hereby created. Notwithstanding anything herein contained to the contrary, the Leasehold Mortgagee or any person or entity acquiring such leasehold estate shall be liable to perform the obligations imposed on ERVC by this Lease only during the period such person has ownership of said leasehold estate or possession of the Leased Land. Avon acknowledges and agrees that the mortgage loans for the construction and permanent financing of the Facility shall be permitted Leasehold Mortgages hereunder, and the lenders of such loans shall be permitted Leasehold Mortgagees, provided that any such Leasehold Mortgage shall be paid in full, released and extinguished by the Maturity Date. Avon’s consent shall not be required for the refinancing of such permitted loans provided that such refinancing does not extend the Maturity Date. ERVC will have no right to mortgage or pledge ERVC’s leasehold estate after the Maturity Date without the express written consent of Avon, to be granted or withheld in Avon’s sole discretion. When giving notice to ERVC with respect to any default hereunder, Avon shall also serve a copy of such notice by certified mail, return receipt requested, postage pre-paid, upon any Leasehold Mortgagee who shall have given Avon a written notice specifying its name and address. No such notice shall be effective against any Leasehold Mortgagee unless and until served on any Leasehold Mortgagee as herein provided. In the event ERVC defaults in the performance of any of the terms, covenants, agreements, and conditions of this Lease to be
Avon-ERVC Land Lease June 2, 2025 Page 9 of 44
performed on its part, any Leasehold Mortgagee shall have the right, within the grace period available to ERVC for curing such default plus an additional sixty (60) days, to cure or make good, such default or to cause the same to be cured or made good, whether the same consists of the failure to pay rent or the failure to perform any other obligation, and Avon shall accept such performances on the part of any Leasehold Mortgagee as though the same had been done or performed by ERVC.
B. In the event that this Lease is terminated by Avon on account of any default, Avon shall give prompt notice thereof to each Leasehold Mortgagee who has given notice to be notified. Avon, within thirty (30) days after receiving a written request therefor, which shall be given within sixty (60) days after such termination, will execute and deliver a new lease (“New Lease”) of the Leased Land to the Leasehold Mortgagee or its nominee or to the purchaser, assignee, or transferee, as the case may be, for the remainder of the term of this Lease, containing the same covenants, agreements, terms, provisions, and limitations as are contained herein.
C. As long as there is a Leasehold Mortgagee, neither the bankruptcy nor the insolvency of ERVC shall operate or permit Avon to terminate this Lease as long as the obligations of ERVC continue to be performed and all other charges of whatsoever nature payable by ERVC continue to be paid in accordance with the term of this Lease. In the event of a filing of a petition in bankruptcy by ERVC, and ERVC rejects this Lease under Article 365 of the Bankruptcy Code (or any replacement thereof), Avon shall, upon the request of a Leasehold Mortgagee which has been approved by Avon, affirm this Lease, and Avon will enter into a new lease on the same terms and conditions with the Leasehold Mortgagee immediately upon ERVC’s rejection of this Lease. In the event of a filing of a petition in bankruptcy by Avon, and Avon rejects this Lease and ERVC does not affirm it, a Leasehold Mortgagee will have the authority to affirm this Lease on behalf of ERVC and to keep the Lease in full force and effect.
D. During the period that a Leasehold Mortgagee shall be in possession of the Leased Land, the Leasehold Mortgagee shall perform the maintenance and repair obligations of ERVC and shall pay or cause to be paid all other charges of whatsoever nature payable by ERVC hereunder. Following the acquisition of ERVC’s leasehold estate by the Leasehold Mortgagee or its designee, Avon’s right to effect a termination of this Lease based upon the default in question shall be deemed waived if the default is otherwise cured. Any such purchaser, or successor of purchaser, shall not be liable to perform the obligations imposed on ERVC by this Lease incurred or accruing after such purchaser or successor no longer has ownership of the leasehold estate or possession of the Leased Land.
E. Avon may have a de minimis ownership interest in the Facility pursuant to Section 11 above. If so, Avon agrees to execute any consent forms that may be required for ERVC’s Leasehold Financing but shall not be required to sign as a co-borrower with ERVC.
14. ESTOPPEL. ERVC agrees, at any time, upon not less than twenty (20) days prior written notice by Avon, to execute, acknowledge and deliver to Avon, a statement in writing addressed to Avon or such other party designated by Avon certifying that this Lease is in full force and effect, stating the dates of commencement and expiration of the Lease, stating the dates to which rent, and other charges, if any, have been paid, that ERVC has accepted possession, that the Lease Term has
Avon-ERVC Land Lease June 2, 2025 Page 10 of 44
commenced, whether or not there exists any default by either party in performance of any covenant, agreement, term, provision or condition in this Lease, and, if so, specifying each such default of which ERVC may have knowledge and the claims or offsets, if any, claimed by ERVC. It is intended that such statement may be relied upon by Avon or a purchaser of Avon's interests and by any mortgagee or prospective mortgagee of any mortgage or deed of trust affecting the Leased Land.
15. COMPLIANCE WITH LAW
A. Avon. Avon represents and warrants to ERVC that, to the best of Avon’s knowledge, as of the date hereof and as of Avon’s Delivery Date: (a) the Leased Land is in compliance with all federal, state, county and municipal laws, including but not limited to environmental laws, rules, regulations and statutes applicable to the Leased Land or the use thereof; (b) there are no Hazardous Substances in or on the Leased Land; and (c) Avon owns all right, title and interest in and to the Leased Land, and there are no mortgages, liens, pledges, charges or security interests on or with respect to the Leased Land as of the effective date.
B. "Hazardous Substances." Shall mean mold and shall mean any substance, chemical, contaminant, or waste that is designated or defined as hazardous, toxic or dangerous or as a pollutant or contaminant in any environmental law, including, without limitation, asbestos, polychlorinated biphenyls (PCBs), pesticides, PCE, and petroleum or its by-products.
C. Waste Or Nuisance. ERVC shall not commit or suffer to be committed any waste upon the Leased Land or any nuisance or other act or thing which may disturb the quiet enjoyment of occupants of adjoining properties. ERVC shall defend, indemnify and hold harmless Avon and its agents, employees, successors and assigns, from and against any and all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses (including, without limitation, reasonable attorneys' fees, consultants' fees, court costs and litigation expenses) arising out of or in any way related to the presence of Hazardous Substances in or on the Leased Land in violation of any law or regulation, and resulting from the actions or omissions of ERVC and/or any party acting on ERVC’s behalf. This provision shall survive the expiration or earlier termination of this Lease.
D. ERVC. ERVC shall, at its sole cost and expense, comply with all of the requirements of all county, municipal, state, federal and other applicable governmental authorities, now in force or which may hereafter be in force, as said laws and regulations affect ERVC’s use of the Leased Land.
16. CONDEMNATION
A. Notice Of Condemnation. If, during the Term of this Lease, Avon receives notice from any public authority that the whole or any part of the Leased Land or Facility is being considered for taking by any public authority under the power of eminent domain, Avon shall immediately provide ERVC with written notice of such action, including a copy of said notice.
B. Option To Terminate. If the whole or any part of the Leased Land or Facility shall be taken by any public authority under the power of eminent domain, or conveyed by Avon to such authority
Avon-ERVC Land Lease June 2, 2025 Page 11 of 44
in lieu of condemnation, and by reason of such taking ERVC determines that ERVC’s business cannot be continued in operation on the portion of the Leased Land which remains, ERVC may, on written notice to Avon, on or before thirty (30) days after such taking, terminate this Lease effective as of the date the Leased Land or Facility, or portion thereof, must be vacated pursuant to the condemnation order or the date of any conveyance in lieu of such condemnation.
C. Modification Of Rights. If any part of the Leased Land shall be taken by any public authority for any public use, or Avon makes any conveyance in lieu of such condemnation, and ERVC does not exercise the option to terminate this Lease granted in this Section 16, then Avon and ERVC agree that the rights, duties, and obligations of the Parties shall then be modified as shall fairly and equitably adjust the rights, duties, and obligations of the Parties under such changed circumstances.
D. Award. It is expressly understood and agreed that ERVC shall have no claim or demand of any kind to any award made to Avon for the Leased Land only. ERVC shall, however, be entitled to an award from such condemning authority for the value of the Facility, all personal property of ERVC, damages suffered by ERVC for diminution in the value of the leasehold and for loss of ERVC’s trade fixtures and improvements. ERVC shall also be entitled to claim an award for damages suffered by ERVC for relocation expenses.
17. DEFAULT OF ERVC. Each of the following shall constitute an "event of default" under this Lease:
A. Failure To Pay Amounts Due. ERVC shall fail to pay taxes (if any are due), utilities, required maintenance or repairs, or other amounts to be paid by ERVC for more than one hundred eighty days (180) days after written notice to ERVC that said amount has not been paid; or
B. Failure To Comply With Use And Operator Requirements. ERVC shall fail to cause an Operator to operate an early childhood education facility as the Permitted Use in compliance with Section 5 of the Lease for more than twelve (12) months after Avon has provided written notice to ERVC of such event of default; or
C. Other Defaults. ERVC's failure to perform any of the other terms, conditions or covenants of this Lease to be observed or performed by ERVC for more than one hundred eighty (180) days after written notice to ERVC thereof; or
D. General Assignment. The making by ERVC of any general assignment for the benefit of creditors; or should there be filed by or against ERVC a petition to have ERVC adjudged a bankrupt or petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against ERVC, the same is dismissed within ninety (90) days); or should an appointed trustee or receiver take possession of substantially all of ERVC’s assets at the Leased Land, or of ERVC’s interest in this Lease, where possession is not restored to ERVC within ninety (90) days; or should substantially all of ERVC’s assets at the Leased Land or ERVC’s interest in this Lease have been attached or judicially seized, where the seizure is not discharged within ninety (90) days.
E. Period to Cure. Avon and ERVC acknowledge that unforeseen circumstances may effect
Avon-ERVC Land Lease June 2, 2025 Page 12 of 44
performance and may impact the timeframe to cure defaults as defined in this Section 17. Avon and ERVC may determine in writing that an extended Period to Cure is more practical and appropriate and may add details and conditions as is mutually determined appropriate to any extended Period to Cure.
18. REMEDIES FOR AVON.
A. Right Of Entry. If any event of default occurs and is not cured within all applicable cure periods, Avon, besides all such other rights or remedies it may have, shall have the immediate right to enter the Leased Land and take possession thereof and of all improvements thereon and may remove all persons and property from the Leased Land by summary action, or otherwise, and such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of ERVC, all without service of notice or resort to legal process except as otherwise provided herein. ERVC agrees to quit and deliver up the possession of the Leased Land, including the Facility and improvements to the Leased Land, when this Lease terminates.
B. Additional Remedies. If an event of default occurs, Avon may elect to re-enter, as herein provided, or take possession pursuant to legal proceedings or pursuant to any notice provided for herein, and it may either terminate this Lease, or it may from time to time without terminating this Lease pursue any other remedies available at law or in equity. No such re-entry or the taking of possession of the Leased Land by Avon shall be construed as an election on its part to terminate this Lease or to accept a surrender thereof unless a written notice of such intention be given to ERVC.
C. Effect Of Lease Termination. Should Avon at any time terminate this Lease for any uncured event of default, in addition to any other remedies it may have, it may recover from ERVC all damages it may incur by reason of such breach, including the cost of recovering the Leased Land.
D. Cumulative Remedies. Any and all remedies provided to Avon for the enforcement of the provisions of this Lease are cumulative and not exclusive and Avon shall be entitled to pursue either the rights enumerated in this Lease or remedies authorized by law or in equity.
19. ASSIGNMENT AND SUBLETTING. Neither this Lease nor any interest herein may be assigned by ERVC, voluntarily or involuntarily, by operation of law or otherwise, without the prior written consent of Avon. Further, neither all nor any part of the Leased Land shall be subleased by ERVC without the prior written consent of Avon. Avon understands that ERVC intends to sublease the Facility owned by ERVC to an Operator. Such sublease and Operator terms and conditions shall be defined in an agreement between ERVC and Operator. The general form sublease between ERVC and Operator is attached to this agreement as Exhibit C. Avon shall have the right to review and approve any Operator of the Facility and any final agreement between ERVC and Operator. Any consent to assignment or sublease given by Avon shall not constitute a waiver of necessity for such consent to a subsequent assignment or sublease. Notwithstanding any approved assignment or sublease, ERVC shall remain fully liable under the terms and conditions of this Lease and shall not be released from performing any of the terms, covenants, and conditions hereof. Any
Avon-ERVC Land Lease June 2, 2025 Page 13 of 44
subleasing not approved in writing by Avon or assignment in violation of this Section 19 shall be null and void, and further shall be deemed a material breach of this Lease
20. ERVC INDEMNIFICATION. ERVC shall indemnify and save harmless Avon and its agents from and against any and all claims, actions, damages, suits, judgments, decrees, orders, liability and expense in connection with loss of life, personal injury and/or damaged property arising from or out of the negligent acts or omissions of ERVC, its contractors, employees, servants or agents, unless the same shall be caused by the negligence or willful act of Avon. This provision shall survive the expiration or earlier termination of this Lease.
21. INSURANCE
A. PROPERTY INSURANCE. ERVC agrees to carry property insurance at all times during the Term which provides protection against any peril generally included in the classification “special form coverage,” insuring the Facility and betterments on the Leased Land, including all appurtenances thereto, in the amount of the estimated replacement value. Said insurance policies shall be with an insurance company or companies with a general policy holders’ rating of not less than “A-VIII” as rated in the most current available A.M. Best’s ratings and which are qualified to do business in the state in which the Leased Land is located. ERVC agrees, in the event of cancellation, ERVC shall provide Avon with notice and a copy of the replacement certificate of insurance which complies with all Lease requirements. ERVC shall furnish Avon a certificate of ERVC’s insurance policies and shall name Avon as a loss payee.
B. DESTRUCTION OF THE FACILITY. If the Facility situated upon the Leased Land should be damaged or destroyed, in whole or in part, ERVC shall give immediate written notice thereof to Avon. ERVC shall at its sole cost and expense proceed with reasonable diligence to rebuild and repair such Facility to substantially the condition in which it existed prior to such damage or destruction. If such damage or destruction exceeds forty percent (40%) of the square footage or value of such Facility, or repairs will take over one hundred eighty (180) days to complete, ERVC may, at ERVC’s sole discretion, immediately terminate this Lease by giving Avon written notice. If ERVC terminates this Lease all insurance proceeds for the Facility shall be payable to Avon.
C. INSURANCE ON ALTERATIONS. ERVC shall have the right to maintain insurance on all alterations, additions, partitions and improvements erected by, or on behalf of, ERVC in, or about the Leased Land. Such insurance shall be for the sole benefit of ERVC and under its sole control. All such policies shall be procured by ERVC from responsible insurance companies.
D. GENERAL LIABILITY INSURANCE. ERVC shall, and ERVC shall cause its Operator, during the entire Lease Term, to keep in full force and effect, a policy or policies of commercial general liability insurance written on an occurrence basis and including coverage appropriate for the Permitted Use of the Facility, product liability, completed operations and contractual liability, with minimum limits of One Million and 00/100 Dollars ($1,000,000.00) per occurrence. ERVC agrees, and ERVC’s Operator shall agree, in the event of cancellation, that it shall provide Avon with notice and a copy of the replacement certificate of insurance which complies
Avon-ERVC Land Lease June 2, 2025 Page 14 of 44
with all Lease requirements. Said insurance policy shall be with an insurance company or companies with a general policyholders’ rating of not less than “A-VIII” as rated in the most current available A.M. Best’s ratings and which are qualified to do business in the state where the Leased Land is located and shall name Avon as an additional insured.
22. WAIVER OF SUBROGATION. ERVC hereby waives any and every claim which arises or may arise in its favor against Avon during the Term of this Lease for any and all loss of, or damage to, any of its property within or upon, or constituting a part of, the Leased Land, which loss or damage is covered by valid and collectible fire and extended coverage insurance policies, to the extent that such loss or damage is recoverable under such insurance policies. Such waiver shall be in addition to, and not in limitation or derogation of, any other waiver or release in this Lease with respect to any loss of, or damage to, property of ERVC. Inasmuch as such waiver will preclude the assignment of any aforesaid claim by way of subrogation or otherwise to an insurance company (or any other person), ERVC hereby agrees to give immediately to each insurance company, which has issued policies of fire and extended coverage insurance, written notice of the terms of such waiver, and to cause such insurance policies to be properly endorsed, if necessary, to prevent the invalidation of such insurance coverage by reason of such waiver.
23. AVON’S RIGHT OF ENTRY. Avon and its authorized agents shall have the right to enter the Leased Land upon reasonable prior written notice to ERVC (i) to inspect the general condition and state of repair thereof, (ii) to show the Leased Land to any prospective purchaser or (iii) for any other reasonable purpose. Avon shall use reasonable efforts to minimize interference with ERVC’s business as a result of any such entry by Avon.
24. SURRENDER OF LAND.
A. CONDITION OF SURRENDER. ERVC shall, at the expiration or earlier termination of this Lease, vacate the Leased Land and Facility and leave the Facility in a good condition, except for reasonable use and wear thereof, acts of God, or damage by casualty beyond the control of ERVC, and on vacating shall leave the Leased Land free and clear of all rubbish and debris.
B. REMOVAL RIGHTS. At the expiration or earlier termination of this Lease, ERVC shall have the right to remove furniture, trade fixtures, equipment, signs, personalty, and other similar items ERVC installed, provided ERVC is not in default at the time of such removal and that ERVC shall repair in a good and workmanlike manner any damage caused by such removal.
C. ABANDONMENT. All personal property of ERVC remaining on the Leased Land or in the Facility after the expiration or earlier termination of the Lease Term or after the abandonment of the Leased Land by ERVC may be treated by Avon as having been abandoned by ERVC, and Avon shall have the right to remove such personal property from the Leased Land or Facility without any obligation to deliver such personal property to ERVC and without any liability to ERVC whatsoever. ERVC shall be presumed conclusively to have abandoned the Leased Land or Facility if the amount of ERVC's property removed by ERVC from the Leased Land or Facility is substantial enough to indicate a probable intent to abandon the Leased Land or Facility, and such removal is not within the normal course of ERVC's business.
Avon-ERVC Land Lease June 2, 2025 Page 15 of 44
25. OWNERSHIP. Upon the expiration or earlier termination of this Lease, the ownership of the Facility and any other improvements, will vest in and be held by Avon; provided, however, ERVC shall have the right to remove furniture, trade fixtures, equipment, signs, personalty, and other similar items ERVC installed in the Leased Land unless this Lease is terminated by Avon following an ERVC material default, subject to all applicable cure periods. ERVC will execute a Bill of Sale in a form reasonably acceptable to Avon, or any other documents reasonably requested by Avon, to confirm in writing and convey, if necessary, the title and interest of any of the foregoing improvements to Avon.
26. RIGHT OF FIRST REFUSAL.
A. During the Term, and provided there is then no uncured default, Avon hereby grants to ERVC and Vail Valley Foundation (“VVF”) a right of first refusal (“Right of First Refusal”) to purchase all or any portion of the Leased Land, subject to and in accordance with the following provisions:
B. Prior to Avon entering into any binding agreement with a bona fide third party purchaser for sale of all or any portion of the Leased Land, Avon shall deliver to ERVC and VVF a written notice, including a proposed purchase and sale agreement or letter of intent which Avon is willing to accept from such third party, subject to this Right of First Refusal (“ROFR Offer Notice”). The ROFR Offer Notice shall set forth the date for closing on the proposed sale, which shall be no earlier than sixty (60) days from the delivery of the ROFR Offer Notice.
C. ERVC and VVF shall have thirty (30) days from receipt of the ROFR Offer Notice to either accept or reject the ROFR Offer Notice. If ERVC rejects the ROFR Offer Notice or if Avon has not received written acceptance or rejection of the ROFR Offer Notice by 5:00 p.m. on the thirtieth (30th) day from ERVC’s receipt thereof, then Avon may enter into and close the proposed purchase and sale on the same terms and conditions as set forth in the ROFR Offer Notice; provided, however, that if Avon and such third party fail for any reason to close such purchase on such terms and conditions within 90 days following the original closing date set forth in the ROFR Offer Notice, this Right of First Refusal shall be deemed reinstated.
D. If the ROFR Offer Notice is accepted by ERVC in accordance with this paragraph, Avon and ERVC, or ERVC’s designee, shall close the purchase and sale on the same terms and conditions as set forth in the ROFR Offer Notice, unless otherwise agreed between them. ERVC’s rights under this Lease shall not be merged with the fee ownership of the Leased Land upon such a purchase or taking of title by ERVC unless ERVC records a termination of this Lease.
27. MEDIATION, ARBITRATION.
A. Mediation. In the event of any dispute under this Lease Avon and ERVC agree to first utilize mediation to attempt to resolve such dispute before filing any legal action in the District Court. Either party may submit a request in writing to the other party to use mediation to attempt to resolve a dispute, which request must describe the unresolved dispute in detail. Avon and ERVC shall mutually agree upon a mediator licensed in Colorado. If Avon and ERVC cannot
Avon-ERVC Land Lease June 2, 2025 Page 16 of 44
agree upon a mediator, then each party shall appoint its own mediator licensed in Colorado and then those two mediators shall select a third mediator licensed in Colorado who shall then solely serve as the mediator. Avon and ERVC shall split the cost of any mediator equally. Avon and ERVC agree to utilize mediation for at least six (6) months from the date of a written request to utilize mediation, or may utilize mediation for a longer period if mutually agreed in writing by Avon and ERVC.
B. Arbitration. In the event of any dispute between the Parties relating to the selection and approval of an Operator or approval of the sub-lease to an Operator, the Parties agree that any such dispute shall be resolved by final and binding arbitration in Eagle County, Colorado by a mutually agreed upon arbitrator. If Avon and ERVC cannot agree upon an arbitrator, then each party shall appoint its own arbitrator who is licensed in Colorado and then those two arbitrators shall select a third arbitrator licensed in Colorado who shall then solely serve as the arbitrator. Avon and ERVC shall split the cost of any such arbitrator equally. The decision of the arbitrator shall be final and binding on the Parties, and judgment thereon may be entered in a court of competent jurisdiction.
C. Tolling of Period to Cure. During any periods that ERVC and Avon have commenced and are continuing either mediation or arbitration proceedings pursuant to Section A or B above, all time periods related to the period to cure for then-existing events of default that the Parties seek to resolve through mediation or arbitration will be tolled from the date of written request for such mediation or arbitration.
28. NOTICES. Any notice or document required or permitted to be delivered hereunder may be delivered or shall be deemed to be delivered, whether actually received or not, via overnight mail, via email with acknowledgement of receipt by the recipient, or when deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested, addressed to the Parties at the addresses indicated below, or at such other addresses as may have theretofore been specified by written notice delivered in accordance herewith:
AVON: Town of Avon, Colorado Attn: Town Manager P.O. Box 975 100 Mikaela Way Avon, CO 81620 townmanager@avon.org
ERVC: Eagle River Valley Childcare Attn: Mike Imhof P.O. Box 6550 90 W. Benchmark, #300 Avon, CO 81620 mimhof@vvf.org 29. MISCELLANEOUS.
A. Counterparts. This Lease may be executed in two (2) counterparts, each of which shall be an original but shall together constitute one and the same instrument.
Avon-ERVC Land Lease June 2, 2025 Page 17 of 44
B. Entire Agreement/Amendment. This Lease, together with any exhibits hereto, encompasses the entire agreement of the Parties, and supersedes all previous understandings and agreements between the Parties, whether oral or written. The Parties hereby acknowledge and represent, by affixing their signatures hereto, that they have not relied on any representation, assertion, guarantee, warranty, or other assurance, except those set out in this Lease, made by or on behalf of any other party or any other person or entity whatsoever, prior to the execution of this Lease. The Parties hereby waive all rights and remedies, at law or in equity, arising or which may arise as the result of a party’s reliance on such representation, assertion, guarantee, warranty, or other assurance, provided that nothing herein contained shall be construed as a restriction or limitation of said party’s right to remedies associated with the negligence, willful misconduct or fraud of any person or party taking place prior to, or contemporaneously with, the execution of this Lease. In addition, this Lease may not be altered, amended, or otherwise modified except by the express written agreement of the Parties.
C. Force Majeure. If the performance of any act required by this Lease to be performed by either Avon or ERVC is prevented or delayed by reason of any act of nature, strike, lockout, labor trouble, unavailability of critical building materials, acts of war, terrorism, civil disturbance, or government orders, the time for performance of the act will be extended for a period equivalent to the period of resulting delay and performance of the act during the period of delay will be excused. However, nothing in this Section shall excuse the prompt payment of any amounts by ERVC as required by this Lease or the performance of any act rendered difficult or impossible solely because of the financial condition of the party required to perform the act.
D. Warranty of Authority. Each individual executing this Lease on behalf of Avon and ERVC represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of Avon or ERVC, and that this Lease is binding upon Avon or ERVC.
E. Interpretation. Notwithstanding the fact that this Lease (in its original form) was prepared by Avon, this Lease has been reviewed by ERVC and its legal counsel and the terms and provisions hereof have been negotiated by both Parties and this Lease shall not be construed for or against Avon or ERVC.
F. Attorneys’ Fees. Each party shall be responsible for its own attorney’s fees and court costs if a Party commences litigation, legal action, or claim to protect its interest, or to enforce any term or provision of this Lease, unless and to the extent recovery of attorney’s fees and costs is expressly addressed elsewhere in this Lease.
G. Damages: Each party waives its respective right to incidental, consequential, exemplary, and punitive damages.
H. Exhibits. All exhibits referred to herein shall be considered a part hereof for all purposes with the same force and effect as if copied at full length herein.
I. Avon/ERVC Relationship. This Lease shall not be construed as creating an association, trust, partnership or joint venture in any way between Avon and ERVC, nor as creating any
Avon-ERVC Land Lease June 2, 2025 Page 18 of 44
relationship between Avon and ERVC other than that of Avon granting a leasehold interest to ERVC in said property, thereby creating solely and strictly a "Landlord-Tenant" relationship and no other.
J. Captions And Context. The captions of the Sections of this Lease are to assist the Parties in reading this Lease and are not a part of the terms or provisions of this Lease. Whenever required by the context of this Lease, the singular shall include the plural and the plural shall include the singular. The masculine, feminine and neuter genders shall each include the other.
K. Waiver of Breach. No waiver of any breach of any provision of this Lease shall be construed to be a waiver of any preceding or succeeding breach of such provision or of any other provision hereof.
L. Applicable Law, Jurisdiction and Forum. This Lease and the rights and obligations of the Parties arising hereunder shall be construed in accordance with the laws of the State of Colorado. In the case of any action, suit or proceeding arising out of this Lease, Avon and ERVC agree that jurisdiction and venue shall be in Eagle County, State of Colorado.
M. Severability. A determination that any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws will not affect the remainder of this Lease.
N. Signatures. Signatures on this Lease that are delivered by facsimile or electronically in a portable document format (pdf) shall be deemed to constitute original signatures.
O. Covenant of Good Faith and Fair Dealing. Avon and ERCV acknowledge the covenant of good faith and fair dealing applies to this Lease. Both Parties agree to not unreasonably withhold, condition or delay any action or approval referenced in this Lease.
P. Governmental Immunity. No term or condition of this Lease shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions of the Colorado Governmental Immunity Act, C.R.S. §§ 24-10-101, et seq.
Q. Recording. At Tenant’s request, Landlord and Tenant will execute a short form of this Lease to be recorded in the public records of Eagle County at Tenant’s cost.
Remainder intentionally blank. Signature page follows.
Avon-ERVC Land Lease June 2, 2025 Page 19 of 44
IN WITNESS WHEREOF, Avon and ERVC have hereunto executed this Lease on the date(s) set forth below.
AVON: TOWN OF AVON By:__________________________________ Attest:_____________________________________ Tamra Nottingham Underwood, Mayor Miguel Jauregui Casanueva, Town Clerk Approved as to Form: Nina Williams, Town Attorney ERVC: EAGLE RIVER VALLEY CHILDCARE By: Print Name: Michael Imhof Title: President and CEO Date:
Mike Imhof (Jun 2, 2025 17:45 MDT)
06/02/2025
Tamra N Underwood (Jun 3, 2025 11:34 MDT)
Nina P. Williams (Jun 3, 2025 14:30 MDT)
Nina P. Williams
Avon-ERVC Land Lease June 2, 2025 Page 20 of 44
EXHIBIT A: LEGAL DESCRIPTION
Lot 3, Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, A
Resubdivision of Lot 1, according to the plat thereof recorded at Reception No 201412782, County of Eagle, State of Colorado Exceptions to Title
1. Unpatented mining claims, reservations or exceptions in patents, or in acts authorizing the issuance thereof. 2. Water rights, claims or title to water.
3. The effect of inclusions in any general or specific water conservancy, fire protection, soil conservation or other district or inclusion in any water service or street improvement area. 4. Reservations or exceptions contained in U.S. Patents, or in Acts authorizing the issuance
thereof, recorded November 19, 1952 in Book 138 at Page 247, recorded December 2, 1936 in
Book 123 at Page 456, recorded June 27, 1936 in Book 123 at Page 403, recorded March 14, 1958 in Book 158 at Page 231, recorded January 7, 1891 in Book 35 at page 459, recorder August 31, 1896 in Book 48 at Page 208, recorded August 5, 1921 in Book 93 at Page 320 recorded August 25, 1970 in Book 218 at Page 520 and recorded August 19, 1921 in Book 93
at Page 322, except Right of way of Grand Valley and Denver and Rio Grande Railway
Companies. reserving 1) Right of the proprietor of a vein or lode to extract and remove his ore therefrom and 2) rights of way for ditches and canals constructed under the authority of the United States.
5. All coal and other minerals in the land so entered and patented, together with the right to
prospect for, mine and remove the same pursuant to the provisions and limitations of the Act of December 29, 1916 (39. Stat. 862) as reserved in the United States Patents recorded March 14, 1959 in Book 158 at Page 231, recorded June 27, 1936 in Book 123 at Page 403, recorded August 25, 1979 in Book 218 at Page 520.
6. Each and every right of access of the Granters to and from any part of the Right of Way for Colorado State Highway No. 4, a Freeway, from Nottingham Ranch Company, recorded May 3, 1972 in Book 223 at Page 982.
7. Terms, conditions, provisions and obligations contained in the Permanent Easement for a
Perpetual Easement to The State Department of Highways, Division of Highway, State of Colorado recorded May 3, 1972 in Book 223 at Page 983. 8. Right of Way for the Denver and Rio Grande Western Railroad, as described in the Deed
recorded June 14, 1887 in Book 5 at Page 222.
Avon-ERVC Land Lease June 2, 2025 Page 21 of 44
9. Terms, conditions, provisions and obligations contained in the Order and Decree Creating District for The Village Metropolitan District recorded February 3, 1999 at Reception No. 685804.
10. Terms, conditions, provisions and obligations contained in the Incremental Sewer Tap Agreement recorded December 7, 1998 at Reception No. 679009 and Resolution recorded December 26, 2001 at Reception No. 780922.
11. All matters shown on the Annexation Map of The Village (at Avon) No. 1 recorded November 25, 1998 at Reception No. 677739. 12. Terms, conditions, provisions and obligations contained in the Annexation and Development Agreement recorded November 25, 1998 at Reception No. 677743 and First Amendment to
Annexation and Development Agreement recorded December 10, 2001 at Reception No. 779049 and Ordinance No. 03-08 recorded July 30, 2003 at Reception No. 842248 and Ordinance No. 04-17 recorded December 22, 2004 at Reception No. 901429. 13. Terms, conditions, provisions and obligations contained in the Town of Avon Ordinance No.
98-14 recorded November 25, 1998 at Reception No. 677740. 14. Terms, conditions, provisions and obligations contained in the Notice of Water Service Agreements recorded November 15, 1999 at Reception No. 714779 and Resolution recorded December 26, 2001 at Reception No. 780923.
15. Terms, conditions, provisions and obligations contained in Resolution 01-09, a Resolution Approving Preliminary Subdivision Plan for The Village (at Avon) Filing 1 recorded July 31, 2001 at Reception No. 763438.
16. All matters shown on the plat of The Village (at Avon) Filing 1 recorded May 8, 2002 at Reception No. 795007 and Amended Final Plat of The Village (at Avon) Filing 1 recorded November 18, 2004 at Reception No. 898173 and Amended Final Plat, the Village (at Avon) Filing 1, a resubdivision of Lot 1 recorded contemporaneously with the Special Warranty Deed
recorded August 1, 2014 at Reception No. 201412786.
17. Terms, conditions, provisions and obligations contained in the Declaration of Master Design Review Covenants for The Village (at Avon) recorded May 8, 2002 at Reception No. 795011 and First Amendment recorded June 10, 2008 at Reception No. 200812112 and Assignment of
Declarant's Rights recorded August 24, 2009 at Reception No. 200918640 and Second
Amendment and Ratified First Amendment to Declaration of Master Design Review Covenants for The Village (at Avon) recorded September 16, 2010 at Reception No. 201018341.
18. Terms, conditions, provisions and obligations contained in the Easement with Covenants and
Restrictions affecting Land ("ECR") recorded May 8, 2002 at Reception No. 795009 and amended by Amendment to Easements with Covenants and Conditions Affecting land
Avon-ERVC Land Lease June 2, 2025 Page 22 of 44
("Amendment") recorded July 7, 2003 at Reception No. 839304 and Amendment and Restated Conveyance of Roadways, Parklands and Easements recorded January 27, 2005 at Reception No. 904568 and Second Amendment to Easements with Covenants and Conditions Affecting
Land recorded October 31, 2008 at Reception No. 200823449 and Third Amendment to Easements with Covenants and Conditions Affecting Land recorded August 13, 2010 at Reception No. 201015934 and Partial Assignment thereto recorded August 1, 2014 at Reception No. 201412795.
19. Terms, conditions, provisions and obligations contained in the Declaration of Covenants for the Village (at Avon) Commercial Areas recorded May 8, 2002 at Reception No. 795012 and First Amendment recorded June 10, 2008 at Reception No. 200812111 and Supplemental Notice of Fees and Delinquency Costs recorded September 30, 2011 at Reception No. 20118243.
20. Terms, conditions, provisions and obligations contained in the Amended and Restated Declaration of Covenants for The Village (at Avon) Commercial Areas recorded May 29, 2019 at Reception No. 201907781 and Amended and Restated Notice of Fees and Delinquency Costs recorded August 15, 2019 at Reception No. 201913098 and First Amendment thereto
recorded October 1, 2020 at Reception No. 202017387. 21. Terms, conditions, provisions and obligations contained in the Conveyance of Roadways, Parkland and Easements recorded May 8, 2002 at Reception No. 795010 and Amended and Restated Conveyance of Roadways, Parkland and Easement recorded January 27, 2005 at
Reception No. 904568. 22. Terms, conditions, provisions and obligations contained in the Subdivision Improvements Agreement, Filing 1 recorded May 8, 2002 at Reception No. 795008.
23. Terms, conditions, provisions and obligations contained in the Radius Declaration recorded May 8, 2002 at Reception No. 795018 and Amended and Restated Radius Declaration recorded January 24, 2003 at Reception No. 821384.
24. Terms, conditions, provisions and obligations contained in the Holy Cross Energy
Underground Right of Way Easement between Traer Creek-RP LLC, a Colorado limited liability company and Holy Cross Energy, a Colorado corporation recorded June 19, 2002 at Reception No. 799223.
25. Terms, conditions, provisions and obligations contained in the Holy Cross Electric
Underground Right of Way recorded June 19, 2002 at Reception No. 799224. 26. Terms, conditions, provisions and obligations contained in the Trench, Conduit and Vault Agreement between Traer Creek-RP LLC, a Colorado limited liability company and Holy
Cross Energy, a Colorado corporation recorded June 5, 2002 at Reception No. 800610.
Avon-ERVC Land Lease June 2, 2025 Page 23 of 44
27. Terms, conditions, provisions and obligations contained in the Trench, Conduit, and Vault Agreement between Traer Creek-RP LLC, a Colorado limited liability company and Holy Cross Energy, a Colorado corporation recorded July 5, 2002 at Reception No. 800611.
28. Terms, conditions, provisions and obligations contained in the Trench Conduit and Vault Agreement between Traer Creek-RP LLC, a Colorado limited liability company and Holy Cross Energy, a Colorado corporation recorded August 14, 2002 at Reception No. 804443.
29. Terms, conditions, provisions and obligations contained in the Holy Cross Energy Underground Right of Way Easement between Traer Creek-RP LLC, a Colorado limited liability company and Holy Cross Energy, a Colorado corporation recorded August 14, 2002 at Reception No. 804448.
30. Terms, conditions, provisions and obligations contained in the Trench, Conduit and Vault Agreement – (Lot 1) recorded April 7, 2005 at Reception No. 911468. 31. Terms, conditions, provisions and obligations contained in the Town of Avon Ordinance No. 06-17 Series of 2006 recorded March 2, 2007 at Reception No. 200705490.
32. Terms, conditions, provisions and obligations contained in the Ordinance No. 01-14 Series 2001 recorded January 1, 2002 at Reception No. 782683. 33. Terms, conditions, provisions and obligations contained in the Holy Cross Energy
Underground Right of Way easement recorded June 3, 2003 at Reception No. 835334. 34. Terms, conditions, provisions and obligations contained in the Trench, Conduit, and Vault Agreement between Traer Creek-RP LLC, a Colorado limited liability company and Holy
Cross Energy, a Colorado corporation recorded June 3, 2003 at Reception No. 835336.
35. Terms, conditions, provisions and obligations contained in the Trench, Conduit, and Vault Agreement recorded October 21, 2003 at Reception No. 854548.
36. Terms, conditions, provisions and obligations contained in the Gas Easement recorded June
29, 2011 at Reception No. 201112313. 37. Terms, conditions, provisions and obligations contained in the Gas Easement recorded September 4, 2012 at Reception No. 201217617.
38. Terms, conditions, provisions and obligations contained in the Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) recorded August 1, 2014 at Reception No. 201412777.
39. The Village (at Avon) PUD Guide recorded November 25, 1998 at Reception No. 677744 and
PUD Development Plan Administrative Amendment No. 1 to The Village (at Avon) P.U.D. Development Plan/Sketch dated October 9, 1998 as shown on document recorded July 31,
Avon-ERVC Land Lease June 2, 2025 Page 24 of 44
2001 at Reception No. 763439 and PUD Guide Administration Amendment No. 2 Certificate of Landowner Request recorded February 19, 2002 at Reception No. 786254, PUD Guide Administrative Amendment No. 4 recorded May 15, 2002 at Reception No. 795805 and PUD
Guide Administrative Amendment No. 3 recorded May 15, 2002 at Reception No. 795806. 40. Terms, conditions, provisions and obligations contained in the Amended and Restated PUD Guide - The Village (at Avon) recorded August 1, 2014 at Reception No. 201412778.
41. Covenants, conditions, restrictions, notes; easements, reservations and rights of ways as shown on the Amended Final Plat, The Village (at Avon) Filing 1, a resubdivision of Lot 1 recorded August 1, 2014 at Reception No. 201412782. 42. Terms, conditions, provisions and obligations contained in the Amended and Restated
Declaration of Covenants for the Village (at Avon) Mixed-Use Areas recorded May 29, 2019 at Reception No. 201907752.
Avon-ERVC Land Lease June 2, 2025 Page 25 of 44
EXHIBIT B: DEPICTION OF THE LAND
Avon-ERVC Land Lease June 2, 2025 Page 26 of 44
EXHIBIT C: FORM OF SUBLEASE LEASE and SUBLEASE AGREEMENT THIS LEASE and SUBLEASE AGREEMENT (“Lease/Sublease”) is made this ___
day of _______, 2025, by and between Eagle River Valley Childcare, a Colorado nonprofit corporation (the “Landlord”), and Access Early Education Foundation, a _________________________ (“Tenant”). RECITALS
WHEREAS, pursuant to a Land Lease dated ________, 2025 (the “Land Lease”), between Town of Avon, a Colorado home rule municipality (the “Fee Owner”) as ground lessor, and Landlord, as ground lessee, Landlord acquired from Fee Owner a leasehold interest in a portion of that certain parcel of land in Eagle County, Colorado, more particularly described
and depicted on Exhibit A attached hereto and made a part hereof (the “Leased Premises”):
WHEREAS, pursuant to the terms of the Land Lease, Landlord agreed to construct and develop on the Leased Premises an early childhood education facility and all related improvements (collectively, the “Improvements”) as further described and defined in the Land
Lease, which Improvements are and shall be owned by Landlord during the term of the Land
Lease (the Leased Premises and the Improvements are hereinafter referred to as the “Project”); and WHEREAS, Tenant and Landlord have concurrently entered into that certain [Operator
Agreement] (the “Operator Agreement”) regarding the operation of the early childhood
education facility (“ECE Operations”); WHEREAS, Landlord desires to sublease the Leased Premises, and lease the Improvements (when completed), to Tenant, and Tenant desires to sublease the Leased Premises
and lease the Improvements (when completed) from Landlord, on the terms, conditions, and
covenants described herein. TERMS
NOW, THEREFORE, in consideration of the foregoing, Tenant and Landlord, intending
to be legally bound, hereby agree as follows: 1. DEMISE AND DESCRIPTION OF PROJECT.
1.1 Project. In consideration of the mutual promises and obligations set forth
under this Lease/Sublease between Landlord and Tenant, Landlord hereby leases, assigns (to the
extent assignable) and delegates to Tenant, and Tenant hereby accepts from Landlord, all of its
Avon-ERVC Land Lease June 2, 2025 Page 27 of 44
rights, title and interest in and to the property, contracts, rights and privileges described hereinbelow relating to the Project:
(a) Improvements. All Improvements, whether heretofore constructed,
presently being constructed or hereafter to be constructed, on or with respect to the Project; and
(b) Fixtures. All appliances, machinery, devices, fixtures, appurtenances, equipment, building supplies and equipment, and articles of tangible personal property of every kind and nature, if any, owned by Landlord and located in or at, and used in connection with the ownership, construction, operation or maintenance of, all or any part of the
Leased Premises and Improvements.
(c) AS IS. TENANT HEREBY ACKNOWLEDGES IT IS TAKING THE LEASED PREMISES IN “AS-IS” CONDITION AND LANDLORD MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE SUITABILITY OF THE LEASED PREMISES FOR TENANT’S INTENDED USE EXCEPT AS EXPRESSLY LAID OUT IN
THIS LEASE/SUBLEASE. TENANT IS RELYING ON ITS OWN INSPECTIONS AND EXAMINATIONS TO DETERMINE THE SUITABILITY OF THE LEASED PREMISES. Tenant acknowledges that it is in possession of the Leased Premises, that Tenant has inspected and examined the entire Leased Premises and utility installations, and that the same were, and are, in good and satisfactory condition.
2. TERM.
2.1 Initial Term. The initial term of this Lease/Sublease (the “Initial Term”) shall be for a period of [____] ([___]) years, commencing on [the date hereof][_____, ____] and ending on the [____] ([___]) anniversary of the date hereof; provided, however, that this
Lease/Sublease shall sooner automatically terminate upon (i) the surrender, forfeiture, termination or other cancellation of the Land Lease, or (ii) the termination of the Operator Agreement (the expiration or earlier termination of this Lease/Sublease is referred to herein as the “Termination Date”).
2.2 Operation. Tenant will open and operate the Improvements for the ECE
Operations within six (6) months of Construction Completion, as such term is defined in the Land Lease. The Improvements shall be regularly opened on Monday through Friday from at least 7:30 am to 5:30 pm, excluding legal holiday days recognized by the State of Colorado and seasonal school closures that do not exceed forty (40) weekdays per calendar year, or as
otherwise agreed to by Landlord and Fee Owner pursuant to the Land Lease and Operator
Agreement. Temporary closures due to repairs, inclement weather, labor shortages or disruptions, or other unforeseen causes are permissible but shall not exceed thirty (30) aggregate days in a calendar year unless a greater number of days is approved by Fee Owner in writing.
Avon-ERVC Land Lease June 2, 2025 Page 28 of 44
3. RENT; UTILITIES.
3.1 Minimum Rent. Except as expressly provided in this Lease/Sublease, during the Term hereof, Tenant shall pay to Landlord, without deduction or offset, in monthly
installments in arrears on or before the first day of each month during the Term, the “Minimum Rent” as described in the Minimum Rent Schedule set forth on Exhibit B attached hereto. Monthly installments of Minimum Rent shall be prorated on or for any period during the term hereof which is less than a full calendar month.
3.2 Additional Rent. Tenant shall pay when due, and as additional rent
hereunder, the following (collectively, the “Additional Rent”):
(a) Additional Rent - Net Lease. Tenant agrees to pay as Additional Rent hereunder all Real Property Taxes, impositions, assessments, liens, fees, interest and penalties, insurance premiums, operating charges and maintenance charges relating to or in connection with the Project. The parties hereto expressly intend that this Lease/Sublease is an absolute net
lease. To the extent permitted by law (and except as otherwise expressly provided for herein), Tenant shall make all payments due under this Section 3.2(a) directly to the appropriate person or entity to whom such payments are customarily made, and shall provide Landlord, within ten (10) days after payment thereof, with proof of payment. Any payments due under Section 3.2 which cannot be lawfully paid by Tenant to the person to whom such payments are customarily
paid shall be paid by Tenant to Landlord within ten (10) days of Landlord’s written demand therefor, accompanied by a valid invoice for the costs in question.
(b) Additional Rent – Land Lease. Tenant agrees to pay as Additional Rent hereunder all costs and expenses of every kind whatsoever payable by Landlord, as ground lessee, pursuant to the Land Lease.
3.3 Pro-rata; Place of Payment. Minimum Rent for any period during the Term hereof which is for less than one month shall be a pro-rata portion of the monthly installment. Minimum Rent and Additional Rent shall be payable in lawful money of the United States to Landlord at the address stated in Section 17 hereof or to such other persons or at such other
places as Landlord may designate in writing from time to time.
3.4 Utilities. Tenant shall pay directly to the public utility supplying the same, all charges to the Project, if any, for all water, gas, heat, electricity, telephone, television and communication lines and other utilities and services supplied to the Project, together with any taxes thereon.
3.5 Security Deposit. Tenant shall deposit with Landlord, upon execution
hereof, a deposit in the amount of [____] and 00/100 Dollars ($[___]), which shall not bear interest, as a security for the faithful performance by Tenant of all terms, covenants and conditions contained within this Lease/Sublease (the “Security Deposit”). If, at any time during the Term of the Lease/Sublease, any of the Minimum Rent or Additional Rent shall be overdue
and unpaid beyond any applicable cure period, Landlord may, at its sole discretion, appropriate
and apply any portion of the deposit to the payment of any such overdue rent or other fees
Avon-ERVC Land Lease June 2, 2025 Page 29 of 44
Tenant is obligated to pay hereunder. In the event Landlord uses any portion of the Security Deposit, Tenant shall remit sufficient funds to restore the Security Deposit to the initial sum deposited, and Tenant’s failure to do so within ten (10) days after receipt of any demand for the
same shall constitute a breach of this Lease/Sublease. Should Tenant comply with all terms, covenants and conditions of this Lease/Sublease, remain current on Minimum Rent and Additional Rent as it becomes due, and return the Leased Premises in the same condition as existed on the Effective Date (ordinary wear and tear excepted), then Landlord shall return this Security Deposit in full at the expiration of the Lease/Sublease.
4. RULES AND REGULATIONS. Tenant shall, at Tenant’s sole cost and expense, comply with all applicable statutes, ordinances, rules, regulations, orders and requirements in effect during the Term or any part of the Term that regulate the Project or Tenant’s use and occupancy thereof. Tenant shall not use or permit the use of the Project in any
manner that creates material waste or a public nuisance.
5. PAYMENT AND PERFORMANCE OF LAND LEASE COVENANTS.
5.1 Compliance. Tenant shall comply with, and this Lease/Sublease is expressly subject to, all of the provisions of the Land Lease which are to be observed or performed during the term hereof by the Landlord as ground lessee thereunder.
5.2 Termination of Land Lease. If the Land Lease is terminated prior to the expiration date of this Lease/Sublease or any extensions and renewals hereof, whether voluntarily or involuntarily, this Lease/Sublease shall terminate concurrently with such termination or surrender of the Land Lease.
5.3 Incorporation. Insofar as the provisions of the Land Lease do not conflict
with specific provisions hereof, they and each of them are incorporated into this Lease/Sublease as fully as if completely restated herein, and the Tenant agrees to be bound to the Landlord by all of the terms of the Land Lease and to pay to Landlord and perform all of the obligations and responsibilities that Landlord, as ground lessee, by the Land Lease assumes toward the Fee
Owner. Tenant hereby agrees to indemnify and hold harmless Landlord from any claim, cost,
expense, damage, obligation or liability (including, without limitation, reasonable attorneys’ fees and expenses) arising under, relating to or in connection with (i) the Land Lease, (ii) the Project, or (iii) otherwise which arises or is alleged to arise from or in connection with any act or omission of Landlord or any of its agents, directors, officers, employees, servants or invitees
under the Land Lease or hereunder.
5.4 Services. Notwithstanding anything herein contained, the only services or rights which Tenant is entitled to hereunder are those to which the Landlord is entitled under the Land Lease and Tenant shall look solely to the Fee Owner under the Land Lease for all such services and rights.
5.5 Acknowledgment. Tenant acknowledges that it has read and is familiar
with the terms of the Land Lease.
Avon-ERVC Land Lease June 2, 2025 Page 30 of 44
6. TENANT’S OBLIGATIONS.
6.1 Insurance.
(a) Requirements. The Tenant will maintain or cause to be maintained
insurance coverages described on Exhibit C attached hereto, at the cost and expense of the Tenant, with financially sound and reputable insurers.
(b) Premiums. The Tenant shall pay all premiums on insurance policies. The Tenant shall deliver duplicate originals or certified copies of all such policies to Landlord, Fee Owner and the Lender, and the Tenant shall promptly furnish to the Fee Owner and Lender
all renewal notices and evidence that all premiums or portions thereof then due and payable have been paid. At least 30 days prior to the expiration date of the policies, the Tenant shall deliver to the Landlord, Fee Owner and the Lender evidence of continued coverage, in the form of a certificate of insurance satisfactory to the Landlord, Fee Owner and the Lender.
(c) General. All policies of insurance required by this Lease/Sublease
shall contain clauses or endorsements to the effect that (a) no act or omission of the Tenant or anyone acting for the Tenant (including, without limitation, any representations made in the procurement of such insurance), which might otherwise result in a forfeiture of such insurance or any part thereof, no occupancy or use of the Project for purposes more hazardous than permitted by the terms of the policy, and no foreclosure or any other change in title to the Project or any
part thereof, shall affect the validity or enforceability of such insurance insofar as the Landlord, Fee Owner, or the Lender is concerned, (ii) such insurance is primary and shall not be modified, canceled or terminated prior to the scheduled expiration date thereof without the insurer thereunder giving at least thirty (30) days prior written notice to the Landlord, Tenant, Fee Owner and the Lender, and (iv) neither the Landlord, Fee Owner nor the Lender shall be liable
for any premiums thereon or subject to any assessments thereunder, and such insurance shall in all events be in amounts sufficient to avoid any coinsurance liability.
6.2 Taxes.
(a) Real Property Taxes. Tenant will pay or cause to be paid all Real
Property Taxes (as defined below), other taxes, assessments and other governmental charges
against the Project before the same become delinquent, and will duly pay and discharge, or cause to be paid and discharged, before the same shall become overdue, all taxes, assessments and other governmental charges imposed upon it and its other properties, sales and activities, or any part thereof, or upon the income or profits therefrom, as well as all claims for labor, materials, or
supplies that if unpaid might by law become a lien or charge upon any of its properties; provided
that any such tax, assessment, charge, levy or claim need not be paid if the validity or amount thereof shall currently be contested in good faith by appropriate proceedings and if the Tenant shall have set aside on its books adequate reserves with respect thereto; and provided further that the Tenant will pay all such taxes, assessments, charges, levies or claims forthwith upon the
commencement of proceedings to foreclose any lien that may have attached as security therefor.
As used herein, the term “Real Property Tax” shall mean any levy, tax, assessment, lien, charge or impost of every kind and nature, ordinary or extraordinary, foreseen or unforeseen, general or
Avon-ERVC Land Lease June 2, 2025 Page 31 of 44
special, levied, assessed or imposed by any authority having the direct or indirect power to tax, including any city, county, state or federal government, or any school, agricultural, lighting, drainage, transportation, landscaping or other improvement or maintenance district thereof, as
against any legal or equitable interest of Landlord in the Project or against any Leased Premises, as against Landlord’s right to rent or other income therefrom, or as against Landlord’s business of leasing the Project.
(b) Personal Property Taxes. Tenant shall pay prior to delinquency all taxes assessed against and levied upon trade fixtures, furnishings, equipment and all other
personal property located on or used in connection with the Project.
6.3 Compliance with Laws, Contracts, Licenses, and Permits. The Tenant will comply with (a) all applicable laws and regulations now or hereafter in effect wherever its business is conducted, including all Environmental Laws, (b) the provisions of its applicable organizational documents and (c) all applicable decrees, orders, and judgments. If at any time
any permit or authorization from any governmental Person shall become necessary or required in order that the Tenant may fulfill or be in compliance with any of its obligations hereunder, the Tenant will immediately take or cause to be taken all reasonable steps within the power of the Tenant to obtain such authorization, consent, approval, permit or license and furnish the Lender with evidence thereof.
6.4 Environmental Indemnification. The Tenant covenants and agrees that it will indemnify and hold the Landlord and Fee Owner harmless from and against any and all claims, expense, damage, loss or liability incurred by the Landlord or Fee Owner (including all reasonable costs of legal representation incurred by the Landlord and/or Fee Owner, but excluding any claim, expense, damage, loss or liability as a result of the gross negligence or
willful misconduct of the Landlord or Fee Owner) relating to (a) any release or threatened release of hazardous substances on the Project; (b) any violation of any Environmental Laws with respect to conditions at the Project or the Leased Premises or the operations conducted thereon; or (c) the investigation or remediation of off-site locations at which the Tenant are
alleged to have directly or indirectly disposed of hazardous substances.
6.5 Response Actions. The Tenant covenants and agrees that if any release or disposal of hazardous substances shall occur or shall have occurred on the Project or the Leased Premises if the same would have a material adverse effect, the Tenant will cause the prompt containment and removal of such hazardous substances and remediation of the Project or Leased
Premises as necessary to comply with all Environmental Laws or to preserve the value of such
Project to the extent necessary to avoid a material adverse effect.
6.6 Tenant’s Maintenance, Repairs and Alterations.
(a) [Tenant’s Obligations. Tenant shall, at its sole cost and expense, during the Term, keep in good order, condition and repair, the Project and every part thereof,
structural or nonstructural. Landlord shall incur no expense nor have any obligation of any kind
whatsoever in connection with maintenance of the Project or the Improvements thereon, other
Avon-ERVC Land Lease June 2, 2025 Page 32 of 44
than with regard to the Landlord’s obligations to construct and pay for the Improvements as required pursuant to the Land Lease.] OR
[(a) Landlord's Maintenance. Landlord, at its sole cost, and expense shall maintain, repair
and replace in good operating condition and repair, reasonable wear and tear, casualty and condemnation excepted, and in compliance with all applicable laws, all Structural (hereafter defined) components of the Improvements. The term “Structural” shall mean that portion of the Improvements that is integral to the integrity of the Improvements and shall include the footings, foundation, column supports, roof, and roofing system of the Improvements.
(b) Tenant’s Maintenance. Subject to Landlord’s obligations in Section 6.6(a), Tenant shall, at Tenant’s own expense, except as otherwise provided in this Lease/Sublease, keep and maintain the entire Project and all parts and systems thereof, including windows and/or plate glass, all utility installations and equipment, and all areas outside of the Improvements including but not limited to the parking lot, loading dock access area, and landscaped areas, in good
operating condition and repair, ordinary wear and tear, casualty and condemnation excepted. All repairs, maintenance and replacements required to be performed by Tenant hereunder shall be performed in a prompt, workmanlike manner, shall be promptly paid for by Tenant and no liens shall be allowed to attach either to the Project or Tenant’s interest therein. Notwithstanding anything to the contrary in this Lease/Sublease, if a Capital Repair (as defined below) is required
for Tenant to perform its obligations under this Section 6.6(b), the costs incurred by Tenant in completing such Capital Repair shall be amortized over the useful life of the applicable repair, replacement or improvement on a straightline basis at zero percent (0%) interest and Tenant shall only be responsible for paying that portion of the cost for such Capital Repair which is attributable to the portion of the useful life of such Capital Repair that falls within the then
remaining Term of the Lease/Sublease, and Landlord shall pay the remainder. In the event the Term of this Lease/Sublease is extended, Tenant shall be liable for the additional portion of the cost for such Capital Repair attributable to the portion of the useful life of such Capital Repair that falls within the extended Term of this Lease/Sublease and shall pay such additional amount
at the time such extension is exercised or otherwise entered into. "Capital Repairs" are those
repairs, maintenance or replacements having a useful life that extends beyond the Term and costing more than [Ten Thousand Dollars ($10,000)]. Except as otherwise expressly provided in this Lease/Sublease, Landlord has no obligation to make any repairs or replacements or to perform any maintenance at the Project.]
(b) Surrender. On the last day of the Term, or on any sooner termination, Tenant shall surrender the Project to Landlord in the same condition as when received (subject to the Improvements and any other improvements then constructed or completed thereon), ordinary wear and tear excepted.
(c) Tenant’s Cooperation. Tenant shall cooperate with Landlord in
obtaining such permits, approvals and consents as may be required in connection with the construction and development of the Improvements on the Leased Premises and in granting such utility and other easements, rights, restrictions, licenses and other interests as may be necessary in order to develop the Improvements in accordance with the Contracts and the Plans.
Avon-ERVC Land Lease June 2, 2025 Page 33 of 44
7. LIMITATION OF LIABILITY AND INDEMNITY. Notwithstanding any provision of the Land Lease to the contrary, Landlord shall not be liable to Tenant or any of Tenant’s agents, employees, servants, or invitees for any death or injury to persons or damage to
property due to the condition or design or any defect in the Project, or any part or component thereof, which may exist or subsequently occur, and Tenant, for itself and its agents, employees, servants, and invitees, hereby expressly assumes all risks and damage to persons and property, either proximate or remote, by reason of the present or future condition of the Project, or any part or component thereof. Tenant agrees that it will indemnify and hold Landlord and Fee Owner
harmless from and against all suits, claims, and actions of every kind (and all costs and expenses including, without limitation, reasonable attorneys’ fees) by reason of any act or omission of Tenant, or any of Tenant’s agents, employees, servants or invitees with respect to the Project.
8. HOLDOVER. Any holdover by Tenant at the expiration of this Lease/Sublease without Landlord’s written consent shall constitute a tenancy from month-to-month at a rental in
the amount of two hundred (200%) percent of the last monthly installment of Minimum Rent plus all Additional Rent and other charges payable hereunder and upon all other provisions hereof. Tenant shall be liable to Landlord for all damage that Landlord suffers because of any holding over by Tenant.
9. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS; SIGNS.
9.1 Tenant may not make any alterations, additions or improvements to the Project without first obtaining the written consent of Landlord and Fee Owner. All such alterations, additions and improvements shall be made at Tenant’s expense and shall be Tenant’s property during the term of this Lease/Sublease, but shall remain on and be surrendered with the Project at the termination of this Lease/Sublease without disturbance, molestation, or injury, at
which time they shall become Landlord’s property.
9.2 Tenant shall not place thereon any signs, placards, blinds, awnings, identifying marks, trademarks, insignia, and advertising and shall not paint any portion of the Project without first obtaining the written consent and approval of Landlord, which shall not be
unreasonably withheld, and subject further to the term and conditions set forth in the Land Lease.
In the event that Tenant shall place or cause to be placed any signs, placards, blinds, awnings, identifying marks, trademarks, insignia, advertising on or about the Project without the prior written consent of Landlord, and as set forth in the Land Lease, Landlord shall have the right and power to remove the same and make the necessary repairs as a consequence thereof at Tenant’s
expense.
10. CASUALTY LOSS. If the Project, or portion thereof, is damaged by fire or other casualty, and the Landlord terminates the Land Lease, this Lease/Sublease shall terminate on the date specified in Landlord’s termination notice. Notwithstanding the foregoing, in the event of any loss or damage to the Project, the Tenant shall give prompt written notice to the
insurance carrier, Landlord, and the Fee Owner. Tenant hereby irrevocably authorizes and
empowers the Landlord, in the Landlord’s sole discretion, as its or their attorney in fact, to make proof of such loss, to adjust and compromise any claim under insurance policies, to appear in and prosecute any action arising from such insurance policies, to collect and receive insurance
Avon-ERVC Land Lease June 2, 2025 Page 34 of 44
proceeds, and to deduct therefrom the Landlord’s expenses incurred in the collection of such insurance proceeds; provided, however, that so long as no Event of Default has occurred and is continuing and so long as the Tenant shall in good faith diligently pursue such claim, the Tenant
may make proof of loss and appear in any proceedings or negotiations with respect to the adjustment of such claim, except that the Tenant may not settle, adjust or compromise any such claim without the prior written consent of the Landlord, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Landlord shall make such net insurance proceeds available to the Tenant to reconstruct and repair the Project to the condition existing
prior to such loss or damage (the “Restoration”), in accordance with the following:
(i) no default shall have occurred and be continuing under the Lease/Sublease;
(ii) Landlord shall, within a reasonable period of time prior to request for initial disbursement, be furnished with an estimate of the cost of the Restoration
accompanied by an independent architect’s certification as to such costs and appropriate plans and specifications for the Restoration, such plans and specifications and cost estimates to be subject to Landlord approval, not to be unreasonably withheld or delayed;
(iii) the net proceeds, together with any cash or cash equivalent deposited by Tenant with Landlord, are sufficient to cover the cost of the Restoration as such
costs are certified by an independent architect;
(iv) Landlord shall be satisfied that payments of Rent hereunder will be covered out of the net proceeds, or other funds of Tenant;
(v) Landlord shall be satisfied that, upon the completion of the Restoration, the Project will have substantially the same or greater economic value as it or they
would have absent the casualty loss or damage; and
(vi) the Project and the use thereof after the Restoration will be in compliance with, and permitted under, all applicable zoning laws, ordinances, rules and regulations (including, without limitation, all applicable Environmental Laws).
11. WAIVER OF ONE BREACH, NOT WAIVER OF OTHERS. Waiver of one
breach of a term, condition, or covenant of this Lease/Sublease by either party hereto shall be limited to the particular instance and shall not be deemed a waiver of future or other breaches of the same or other terms, conditions or covenants of this Lease/Sublease.
12. DEFAULT.
12.1 Event of Default. The Tenant shall have breached this Lease/Sublease, an
“Event of Default” shall have occurred, and Landlord shall have all of the remedies available to Landlord under this Lease/Sublease and/or which would be available to the Landlord under the Land Lease upon the occurrence of an Event of a Default under, and as that term is defined in, the Land Lease, as well as all other remedies available to a Landlord according to state law,
Avon-ERVC Land Lease June 2, 2025 Page 35 of 44
including but not limited to the right to terminate this Lease/Sublease upon the occurrence of any of the events set forth in clauses (a) through [(f)] of this Section 12.1.
(a) Tenant fails to make any payment within [ten (10)] days of the date
due of Minimum Rent or Additional Rent; or
(b) Tenant fails to make payment of any other charge, cost or expense payable hereunder within [fifteen (15)] days of the date due (or on the date due if failure to make payment will result in the imposition of any lien); or
(c) Tenant fails to perform any covenant, condition or agreement in the
Land Lease to be performed hereunder by Tenant on behalf of Landlord as set forth in this Lease/Sublease and such default remains uncured after any applicable grace period provided in the Land Lease; or
(d) Tenant shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or
shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of any substantial part of its properties or shall commence any case or other proceeding under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application shall
be filed or any such case or other proceeding shall be commenced against any such Person and such Person shall indicate its approval thereof, consent thereto or acquiescence therein; or
(e) A decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Tenant bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the
Tenant in an involuntary case under federal bankruptcy laws as now or hereafter constituted; or
(f) Tenant is in default under the Operator Agreement.
12.2 Damages. Upon the occurrence of an Event of Default and in addition to any damages due to Landlord for the Tenant’s default hereunder, Landlord shall also be entitled
to all damages to which the Fee Owner under the Land Lease would be entitled in the event of a
default thereunder, as well as any other amount necessary to compensate Landlord for all detriment proximately caused by the Tenant’s failure to perform its obligations under this Lease/Sublease, including without limitation, reasonable attorneys’ fees.
13. LANDLORD’S REMEDIES. In the event of an Event of Default, Landlord at
any time thereafter may at its option, and to the full extent permitted by applicable law, exercise
any one or more of the following remedies:
13.1 Termination of Lease/Sublease. Landlord may terminate this Lease/Sublease, by written notice to Tenant, without any right by Tenant to reinstate its rights by payment of rent due or other performance of the terms and conditions hereof. Upon such
Avon-ERVC Land Lease June 2, 2025 Page 36 of 44
termination Tenant shall immediately surrender possession of the Project to Landlord, and Landlord shall immediately become entitled to receive from Tenant an all Minimum Rent and Additional Rent as and when such amounts would otherwise accrue if the Lease/Sublease were
still in effect.
13.2 Reletting. With or without terminating this Lease/Sublease, as Landlord may elect, Landlord may re-enter and repossess the Project, or any part thereof, and sublease them to any other person upon such terms as Landlord shall deem reasonable, subject, however, to the terms and conditions of the Land Lease, for a term within or beyond the term of this
Lease/Sublease; provided, that any such reletting prior to termination shall be for the account of Tenant, and Tenant shall remain liable for (a) all Minimum Rent, Additional Rent and other sums which would be payable under this Lease/Sublease by Tenant in the absence of such expiration, termination or repossession, less (b) the net proceeds, if any, of any reletting effected for the account of Tenant after deducting from such proceeds all of Landlord’s expenses,
reasonable attorneys’ fees and expenses, employees’ expenses, reasonable alteration costs, expenses of preparation for such reletting and all costs and expenses, direct or indirect, incurred as a result of Tenant’s breach of the Lease/Sublease.
13.3 Removal of Contents by Landlord. Landlord may remove all persons and property from the Project, and store such property in a public warehouse or elsewhere at the cost
of and for the account of Tenant, without service of notice or resort to legal process (all of which Tenant expressly waives) and without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby.
13.4 Right of Distress and Lien. In addition to all other rights and remedies of Landlord, if an Event of Default shall occur, Landlord shall, to the extent permitted by law, have
a right of distress for rent and lien on all of Tenant’s fixtures, merchandise and equipment in the Project, as security for rent and all other charges payable hereunder.
13.5 Survival of Tenant’s Obligations. No expiration or termination of the Term of this Lease/Sublease pursuant to Section 13.1 above or by operation of law or otherwise
(except as expressly provided herein), and no repossession of the Project or any part thereof
pursuant to Section 13.1 or 13.2 above or otherwise shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination or repossession, and Landlord may, at its option, sue for and collect all rent and other charges due hereunder at any time as when such charges accrue.
13.6 Injunction. In the event of breach or threatened breach by Tenant of any
provision of this Lease/Sublease, Landlord shall have the right of injunction and the right to invoke any remedy allowed at law or in equity in addition to other remedies provided for herein.
13.7 Waiver of Redemption. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future law in the event this Lease/Sublease is
terminated, or in the event of Landlord obtaining possession of the Project, or Tenant is evicted
or dispossessed for any cause, by reason of violation by Tenant of any of the provisions of this Lease/Sublease.
Avon-ERVC Land Lease June 2, 2025 Page 37 of 44
13.8 Not Exclusive Right. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy herein or by law provided, but each shall be cumulative and in addition to every other right or remedy given
herein or now or hereafter existing at law or in equity or by statute.
13.9 Expenses. In the event that Landlord commences suit for the repossession of the Project, for the recovery or rent or any other amount due under the provisions of this Lease/Sublease, or because of the breach of any other covenant herein contained on the part of Tenant to be kept or performed, and a breach shall be established, Tenant shall pay to Landlord
all expenses incurred in connection therewith, including reasonable attorneys’ fees.
13.10 State Laws. In addition to any remedies set forth above, Landlord shall have all of the rights and remedies of a commercial Landlord under the laws of the State of Colorado. Tenant acknowledges and agrees that this Lease/Sublease is intended to benefit from and comply with all state and local laws applicable to the Project. Consequently, Tenant hereby
waives all rights to notice, cure periods and procedures pursuant to State law in excess of those permitted herein to the extent permitted under State law, and agrees (i) that all rights and remedies to which Landlord would be entitled under state law are hereby incorporated herein by reference as though set forth in this Section 13.10 in full, and (ii) that any remedy set forth in this Lease/Sublease which is contrary to or not permitted by the laws of the State shall have no force
or effect and shall not impair the enforceability of the other provisions of this Lease/Sublease.
13.11 Landlord’s Right to Cure Tenant’s Default. If Tenant defaults in the making of any payment or in the doing of any act herein required to be made or done by Tenant, then Landlord may, but shall not be required to, make such payment or do such act, and charge the amount of Landlord’s expense, with interest accruing and payable thereon at the Default Rate
as of the date of the expenditure by Landlord or as of the date of payment thereof by Tenant, whichever is higher, from the date paid or incurred by Landlord to the date of payment thereof by Tenant; provided, however, that nothing herein contained shall be construed or implemented in such a manner as to allow Landlord to charge or receive interest in excess of the maximum
legal rate then allowed by law. Such payment and interest shall constitute Additional Rent
hereunder due and payable with the next monthly installment of Minimum Rent due and payable. The making of any such payment or the taking of any such action by Landlord pursuant to this Section 13.11 shall not operate to cure any such default by Tenant or to estop Landlord from the pursuit of any remedy to which Landlord would otherwise be entitled.
14. USE OF PROJECT. The Project shall be used by Tenant primarily as an early
childhood education facility serving children 0-5 years of age, with capacity for at least one hundred and sixty (160) children, and may be used for other lawful complimentary uses such as after school care, week-end child care, parent education classes, community meetings, and youth gathering space provided that such complimentary uses do not detract from the primary early
childhood education facility use (“Permitted Use”). The Permitted Use shall be conducted at all
times in accordance with the laws of the State of Colorado, any applicable licensure requirements, the laws of the Town of Avon and any other applicable federal, state or local laws.
Avon-ERVC Land Lease June 2, 2025 Page 38 of 44
15. APPLICABLE LAW. THIS LEASE/SUBLEASE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF COLORADO.
16. CONSENT TO JURISDICTION. Landlord and Tenant hereby consent to the
exclusive jurisdiction of the Court of Eagle County of the State of Colorado and/or the United States District Court for the District of Colorado in any and all actions and proceedings arising hereunder or pursuant hereto, and irrevocably agree to service of process by certified mail, return receipt requested, to its address set forth herein or such other address as each may direct to the other in accordance with this Lease/Sublease. Landlord and Tenant irrevocably as an
independent covenant waive a jury trial and the right thereto in any action or proceeding between Landlord and Tenant whether hereunder or otherwise.
17. NOTICES. All notices, requests, demands, directions, declarations and other communications provided for herein shall be in writing and shall, except as otherwise expressly provided, be mailed by registered or certified mail, return receipt requested, delivered to a
nationally recognized overnight courier service, [sent via electronic mail,] or delivered by hand to the applicable party at its address indicated below:
If to Tenant: Access Early Education Foundation
Attn: [MORE INFORMATION] E-mail:
If to Landlord: Eagle River Valley Childcare
Attn: [MORE INFORMATION] Email:
Except as otherwise expressly provided herein, each notice, request, demand, direction,
declaration and other communication (i) shall be effective three days after deposit when deposited in the mail, postage prepaid, addressed as aforesaid; (ii) shall be effective one day after deposit when deposited with a nationally recognized overnight courier service and (iii) shall be effective upon delivery when hand delivered [or delivered by electronic transmission]. Either
party may change its address by a communication in accordance herewith.
18. NO ASSIGNMENT OR SECOND LEASE/SUBLEASE WITHOUT CONSENT. Tenant shall not sell, assign, transfer, convey, or encumber this Lease/Sublease or any part thereof or any interest therein or relet the Project in whole or in part without first
Avon-ERVC Land Lease June 2, 2025 Page 39 of 44
obtaining the written consent of Landlord, which consent may be granted or withheld in Landlord’s sole discretion, and subject further to the terms and conditions of the Land Lease.
19. EXCULPATION. Except as otherwise provided herein and except due to
Landlord’s negligence or willful misconduct, neither Landlord nor Fee Owner shall be responsible to Tenant or to any other person, firm, partnership, association or corporation for damages or injuries by virtue of or arising out of burst water pipes, leaks from sprinkler or air conditioning systems, leaks from the roof, or by virtue of earthquakes, riots, windstorms, overflow of water from surface drainage, rains, water, fire or by the elements or Acts of God, or
from theft. Neither Landlord nor Fee Owner will be liable for any interruption in utilities to the Project.
20. SUBORDINATION. This Lease/Sublease shall be subject and subordinate, in all respects, to the Land Lease.
21. LEASE/SUBLEASEHOLD MORTGAGE. The Tenant is prohibited from
encumbering, hypothecating, or mortgaging Tenant’s interest in this Lease/Sublease.
22. COUNTERPARTS. To facilitate execution, this Lease/Sublease may be executed in any number of counterparts as may be convenient or necessary, and it shall not be necessary that the signatures of all parties be contained on any one counterpart hereof. Additionally, the parties hereby covenant and agree that, for purposes of facilitating the
execution of this Lease/Sublease, (a) the signature pages taken from separate individually executed counterparts of this Lease/Sublease may be combined to form multiple fully executed counterparts and (b) a digitally scanned or electronic signature shall be deemed to be an original “wet ink” signature. All executed counterparts of this Lease/Sublease shall be deemed to be originals, but all such counterparts taken together shall constitute one and the same agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK. SIGNATURES TO APPEAR ON FOLLOWING PAGE.]
Avon-ERVC Land Lease June 2, 2025 Page 40 of 44
IN WITNESS WHEREOF, this Lease/Sublease is executed as of the date recited in the first paragraph above. TENANT: Access Early Education Foundation, a _________________________ By: Name: Title: LANDLORD: Eagle River Valley Childcare, a Colorado nonprofit corporation By: Name: Title:
Avon-ERVC Land Lease June 2, 2025 Page 41 of 44
DEPICTION OF THE LEASED PREMISES
Avon-ERVC Land Lease June 2, 2025 Page 42 of 44
MINIMUM RENT SCHEDULE [TBD]
Avon-ERVC Land Lease June 2, 2025 Page 43 of 44
INSURANCE REQUIREMENTS
During the term of the Lease/Sublease, Tenant shall obtain and maintain insurance on the Leased Premises and Project, and all buildings and other improvements thereon, now or hereinafter constructed, for the mutual benefit of Landlord, Fee Owner, Tenant and any mortgagee in
accordance with the following requirements: (a) Property insurance at all times during the Term which provides protection against any peril generally included in the classification “special form coverage,” insuring the Improvements and betterments on the Leased Premises, including all appurtenances thereto, in the amount
of the estimated replacement value. Said insurance policies shall be with an insurance company or companies with a general policy holders’ rating of not less than “A-VIII” as rated in the most current available A.M. Best’s ratings and which are qualified to do business in the state in which the Leased Premises is located. In the event of cancellation, Tenant shall provide Landlord with notice and a copy of the replacement certificate of
insurance which complies with all Lease/Sublease requirements. Tenant shall furnish Landlord and Fee Owner a certificate of Tenant’s insurance policies and shall name Fee Owner as a loss payee.
(b) Commercial general liability insurance written on an occurrence basis and including
coverage appropriate for the Permitted Use of the Facility (as defined in the Land Lease), product liability, completed operations and contractual liability, with minimum limits of One Million and 00/100 Dollars ($1,000,000.00) per occurrence. Landlord and Tenant agree that in the event of cancellation, that they shall provide Fee Owner with notice and a
copy of the replacement certificate of insurance which complies with all Lease/Sublease
requirements. Said insurance policy shall be with an insurance company or companies with a general policyholders’ rating of not less than “A-VIII” as rated in the most current available A.M. Best’s ratings and which are qualified to do business in the state where the Leased Premises is located and shall name Landlord and Fee Owner as an additional
insured.
(c) Umbrella and/or Excess Liability insurance on an “occurrence” basis in an amount not less than $10,000,000 per occurrence.
(d) Automobile Liability insurance including coverage on owned, hired and non-owned
automobiles and other vehicles, with Bodily Injury and Property Damage limits of not less than $1,000,000 per occurrence combined single limit.
Avon-ERVC Land Lease June 2, 2025 Page 44 of 44
(e) Worker’s Compensation and Employer’s Liability insurance to the extent required by the law of the state in which the Leased Premises is located or in the state in which Tenant is obligated to pay compensation to employees, and to the extent necessary to protect
Landlord against worker’s compensation claims. The policy limit under the Employer’s Liability Insurance section of the policy shall not be less than $1,000,000 for any one accident.
(f) Such other insurance, and in such amounts, as may from time to time be required by any
current or future holder of a fee or leasehold mortgage on the Leased Premises against the same or other insurable hazards which are of the type commonly insured against in the case of premises similarly situated.
(g) All policies of insurance shall be effected under valid and enforceable policies, in such forms and amounts as above specified, issued by insurers of recognized responsibility
which have a minimum A.M. Best Policyholder’s rating of A- and a minimum A.M. Best’s Financial rating of VIII, and which are authorized to transact fire and casualty insurance in the state that the Leased Premises is located. Upon the execution of the Lease/Sublease and thereafter not less than thirty (30) days prior to the expiration date of each policy, a certificate evidencing each policy required to be furnished shall be delivered to Landlord.