Loading...
TC Resolution 26-11 Approving an Agreement to Non-Simultaneous Exchange of Real Property with the State Land BoardA Avon COLORADO RESOLUTION 26-11 APPROVING AN AGREEMENT TO NON -SIMULTANEOUS EXCHANGE OF REAL PROPERTY WITH STATE LAND BOARD WHEREAS, the Avon Town Council ("Council") has identified a goal to achieve a diverse range of housing as stated in the Avon Comprehensive Plan and the Avon Community Housing Plan, including rental and for -sale housing across a range of densities, styles, and types to serve all segments of the population; and WHEREAS, the Town of Avon and the State Land Board have engaged in significant negotiations regarding potential Community Housing projects to be developed on property owned by the State Land Board west of Dowd Junction and including the east end of the Eagle -Vail commercial area on U.S. Highway 6; WHEREAS, the Town of Avon is authorized by Section 2.1(a) of the Avon Home Rule Charter and Title 31 generally of the Colorado Revised Statutes to purchase real estate; WHEREAS, the Agreement to Non -Simultaneous Exchange of Real Property ("Agreement") attached as EXHIBIT A sets forth terms and conditions for the purchase and sale of approximately 76 acres of land ("Property") to be acquired by Avon for the primary purpose of developing Community Housing and provide recreational and open space lands for use and access by the general public; and WHEREAS, the Avon Town Council finds that the purchase of the State Land Board property clearly supports the vision and goal of creating more Community Housing by providing land to develop a regional housing project which will promote the health, safety and general welfare of the Avon community. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN OF AVON by the Avon Town Council the following: 1. The Agreement to Non -Simultaneous Exchange of Real Property asset forth in EXHIBIT A is hereby approved by Council. 2. The Mayor, Town Attorney, and Town Manager are authorized to execute the Agreement and documents related to closing and conveyance of the Property. 3 The Mayor, Town Attorney and Town Manager are authorized to assign this Agreement the Avon Housing Authority or other governmental entities or non-profit corporations SOWN fF controlled by the Town of Avon. p�L Cr . ADOP D GUS 25, 2026 Y THE AVON TOWN COUNCIL By: Attest: amra N. Underwood, Mayor Miguel Jauregui Resolution 26-11 August 25, 2026 own Clerk Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 AGREEMENT TO NON -SIMULTANEOUS EXCHANGEOF REAL PROPERTY This Agreement to Non -Simultaneous Exchange of Real Property ("Agreement") is entered into pursuant to Article IX, Section 9 (7) of the Colorado Constitution and Title 36 of the Colorado Revised Statutes on August 5 , 2026, ("Effective Date") between the STATE OF COLORADO, acting by and through the STATE BOARD OF LAND COMMISSIONERS, or its representatives or agents ("Board"), whose address is 1127 Sherman Street, Suite 300, Denver, CO 80203-2206, and the TOWN OF AVON, a home rule municipal corporation of the State of Colorado ("Transferee"), whose address is 100 Mikaela Way, Avon, CO 801620. RECITALS WHEREAS, Transferee desires to own, and has offered to obtain by exchange, land currently owned by the State of Colorado, which is located in Eagle County, Colorado, legally described on Exhibit A ("State Property") containing 76.116 gross acres, more or less; and WHEREAS, The Board desires to exchange the State Property for certain other real property to be identified by the Board at a later date ('Replacement Property"), pursuant to Article IX, Sections 9 and 10 of the Colorado Constitution and Title 36 of the Colorado Revised Statutes subject to the terms and conditions of this Agreement. NOW THEREFORE, in consideration of the foregoing and the various terms, covenants and conditions set forth herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties incorporate the recitals above and agree as follows: 1. Agreement to Exchange. a. Subject to the terms and conditions set forth in this Agreement, the Board agrees to convey and deliver all of the Board's right, title and interests in the State Property, except those rights and interests expressly reserved or excepted herein, to Transferee by Patent and Transferee agrees to accept and take all of the Board's rights, title, and interests herein conveyed by Patent and to deposit funds with the State Treasurer for the future acquisition of other property by the Board, pursuant to Article IX, Section 9 (7) of the Colorado Constitution, and pursuant to C.R.S. 95 36-1-124.3 and 36-1-124.5. b. The Patent shall be subject to any and all covenants, restrictions, easements or rights -of -way, whether or not of record, including without limitation those shown on Exhibit B, and those exceptions listed on Schedule B Part II of the Title Commitment or shown on the ALTA Survey, as both areas later herein defined, Page 1 of 21 Docusign Envelope ID: 7911FFA3-5D59-8ADE-8252-78767A774086 and shall reserve to the Board title and all rights to any and all surface and sub- surface pore space, minerals, ores, and metals, of any kind and character, and all coal, asphaltum, oil, gas, or other like substances, and all geothermal resources in, on, or under the State Property (such retained estate referred to as the "Mineral Estate" or "Minerals") and rights of ingress and egress in, on, under, over, across and through the State Property for the purposes of exploration, production, mining, extraction, storage, sequestration, and removal of or access to such substances and resources, together with enough of the surface as may be necessary for the proper and convenient working of such substances and resources, and the right to cross Grantee's land adjoining the State Property, if any, to access the Mineral Estate reserved. For the avoidance of any doubt, the Mineral Estate hereby reserved to the State of Colorado expressly includes (i) all industrial minerals and rock products, such as sand, gravel, clay, and crushed stone, located on or under the State Property; and (ii) all surface and mineral rights necessary for the proper and convenient working of reserved pore space for any lawful purpose; including, without limitation, in connection with exploration of pore space, injection into pore space, use of pore space for storage or sequestration, and monitoring pore space and any resource(s) stored therein. C. The Patent shall reserve all water and water rights, including tributary and nontributary groundwater, found in association with reserved geothermal resources or otherwise necessary or convenient for the proper and convenient working of such reserved geothermal resources; d. The Patent shall reserve all historical, prehistorical, and archaeological resources in, on, or under the State Property and any and all rights under C.R.S. 55 24-80-401 through 411 ("Archaeological Resources"), together with the right to cross the State Property and Grantee's land adjoining the State Property from a maintained public road for the purpose of accessing, exploring, protecting, preserving, interpreting, and enhancing the Archaeological Resources. Grantee understands and acknowledges the requirements of C.R.S. SS 24-80-1301 through 1305. e. The Patent shall require that Transferee, its heirs, successors and assigns shall provide actual and posted notice of non -liability pursuant to C.R.S. 5 38- 22-105 notifying all persons who might claim a mechanic's lien relating to any work on, materials provided for or improvements to the State Property initiated by or conducted for the benefit of Transferee, its heirs, successors, and assigns that the Board's interests are not subject to such liens. Transferee, its heirs, successors and assigns shall indemnify, defend, and hold the Board harmless against any claims for mechanic's liens relating to any work on, materials provided for or improvements to the State Property initiated by or conducted for the benefit of Transferee, its heirs, Page 2 of 21 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 successors, and assigns. This obligation shall run with the land and survive the Closing. f. The Patent shall include the following provisions to restrict development and use of the State Property to deed restricted residential workforce housing and accessory uses as are defined in the Town of Avon's applicable Community Housing zone district designation ("Community Housing") and parks, open space and recreation uses. The form of the Patent shall be subject to mutual review and approval of Board and Transferee on or before December 18, 2026. In the event that either Board or Transferee do not agree to the form of the Patent in writing by December 18, 2026, then this Agreement shall automatically terminate all things of value received shall be returned, including Transferee's Earnest Money Deposit. (1) Restrictive Use Covenant. The Patent shall include a covenant that restricts the development and use of the State Property to Community Housing, parks, recreation and open space and designates the Board as a beneficiary of such covenant. (2) Right to Profits. The Board shall be entitled to 100% of net profits which occur from any private commercial development, use or operation on the State Property except home occupations which occur as an accessory use to residential use. (3) Right of First Refusal. The Board shall be granted a right of first refusal, and the ability to buy any part of the State Property back at the original price (i.e., the Exchange Price as later defined), should Transferee, or its successor(s) attempt to sell or transfer any portion of the State Property without developing the State Property for Community Housing, except for transfers to local government housing authority. (4) Reversionary Clause. In the event any part of the State Property is developed for a use other than Community Housing or public park, recreation or open space uses, the Board may elect to have the State Property revert to ownership by the Board (the "Reverter") by providing a written notice to the Transferee or successor of such election to exercise the right of Reverter and stating the specific reasons or conditions that warrant the right of Reverter and the Transferee shall have ninety (90) days from the date of receipt of such written notice to cure. If the Transferee does not cure within such time period, then upon the demand of the Board, the Transferee or its successor will execute a bargain and sale deed to the State Property in form and substance acceptable to the Board, evidencing the Reverter Page 3 of 21 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 of the State Property without any Community Housing deed restriction. The Reverter shall expire and be of no further force and effect on portions of the State Property which have been developed as Community Housing, park, or recreation uses or restricted as open space. Thereafter, and upon written request by Transferee, the Board and Transferee shall record a document with the Eagle County Clerk and Recorder terminating and releasing the Reverter for the applicable portion of State Property. g. At Closing (as defined below), the Parties agree to enter into a No -Surface Occupancy agreement covering the State Property in substantially the form of Exhibit D attached to this Agreement ("NSO Agreement") for the purpose of preventing the occupancy of the surface of the State Property in the development or extraction of the reserved Mineral Estate. 2. Exchange Payment. a. For the purpose of constituting a basis on which this non - simultaneous exchange may be made, the Exchange Payment for the State Property shall total $5,861,293.28 ("the Exchange Payment") subject to credits and charges as provided herein. The Exchange Payment will be allocated as follows: Parcel Acreage Price/Acre Price Parcell 4.626 $1,054,152.00 $4,876,507.15 River Corridor 18.423 $6,085.69 $ 112,116.67 River North 53.067 $5, 532.00 $ 293, 566.64 Total Acres 76.116 Subtotal $5,282,190.46 Site Cost Reimbursement $579,102.82 TOTAL $5,861,293.28 If any acreage is adjusted based on the ALTA Survey provided for in Paragraph 10.b. of this Agreement, the Exchange Price shall be adjusted based on the per acre price for the corresponding adjusted parcels in this Paragraph 2.a. b. Transferee shall wire the Exchange Payment in the form of wire transfer at Closing (as hereinafter defined). The Exchange Payment shall be credited to a separate account in the Non -simultaneous State Trust Land Exchange Cash Fund pursuant to C.R.S. § 36-1-124.5(2). 3. Earnest -Money: Liquidated Damages. The amount of $140,000.00 in the form of a wire transfer shall be tendered by Transferee to be held in escrow by Page 4 of 21 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 the Avon office of Land Title Guarantee Company ("Title Company") within three (3) business days after the Effective Date of this Agreement, as earnest money ("Earnest Money"). The Earnest Money shall be held by the Title Company in a non -interest bearing account subject to the provisions of this Agreement. The Earnest Money shall be applied to the Exchange Payment at Closing. IF THE EXCHANGE IS NOT CONSUMMATED DUE TO ANY DEFAULT BY TRANSFEREE HEREUNDER, THEN THE BOARD SHALL HAVE THE RIGHT TO ELECT TO RETAIN THE EARNEST MONEY AS LIQUIDATED DAMAGES, WHICH RETENTION SHALL OPERATE TO TERMINATE THIS AGREEMENT. THE PARTIES HAVE AGREED THAT THE BOARD'S ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO CONSUMMATE THIS TRANSACTION DUE TO TRANSFEREE'S DEFAULT, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT THE BOARD WOULD INCUR IN SUCH EVENT. EACH SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND EACH PARTY HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY COUNSEL TO EXPLAIN, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THE PARTIES REPRESENT THAT THEY HAVE EITHER RETAINED LEGAL COUNSEL, OR HAVE DECLINED TO DO SO. 4. Encumbrances and/or Transfers. a. Existing State Leases. The Board surface leases are listed on Exhibit C. The surface leases shall be either terminated at Closing or assigned to the Transferee as shown on Exhibit C. The Board shall obtain an estoppel certificate from the Lessees of State Lease Lease No. 117726 for the benefit of the Transferee which shall certify that the Board is not in default of State Lease Lease No. 117726. The Board shall provide the estoppel certificate to Transferee as a condition of Closing. b. Limitations on Transfers and Encumbrances. Between the date of this Agreement and the date of Closing or termination of this Agreement, the Board shall not otherwise sell, convey, option, lease, or grant any easement, right-of-way or otherwise encumber the State Property except for leases of geothermal resources, mineral substances, and water resources being reserved to the Board, without the written consent of Transferee. C. Evidence of Title. Transferee shall obtain a commitment of title insurance for this property ("Title Commitment"), the cost of such a commitment shall be at the Transferee's sole cost and expense. 5. Due Diligence, Inspection, and Condition of Property. Page 5 of 21 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 a. Provided this Agreement is not terminated, the Board shall transfer and Transferee shall accept and take the State Property at Closing "AS IS, WHERE IS, WITH ALL FAULTS" including any preexisting conditions, and shall bear all risk of loss or damage to the State Property occurring after the date of this Agreement. Notwithstanding anything to the contrary in this Agreement, no present or latent defect in the condition of the Exchange Property, whether or not known or discovered, shall give rise to any claim or cause of action against the Board. b. Transferee acknowledges and agrees that the Board has not made, does not make, and specifically negates and disclaims any representations, warranties, promises, covenants, agreements, or guaranties of any kind or character whatsoever, whether express or implied, verbal or written, past, present, or future, of, as to, concerning or with respect to the State Property including, but not limited to: (i) the value, nature, quality, or condition of the State Property, including, without limitation, the water, soil, and geology; (ii) the income to be derived from the State Property; (iii) the suitability of the State Property for any and all activities and uses which Transferee may conduct thereon; (iv) the compliance of or by the State Property or its operation with any laws, rules, ordinances, or regulations of any applicable governmental authority or body; (v) the habitability, merchantability, marketability, profitability, or fitness for a particular purpose of the State Property; or (vi) any other matter with respect to the State Property. Transferee specifically disclaims any representations regarding compliance with any environmental protection, pollution, or land use laws, rules, regulations, orders, or requirements, including solid waste, or the disposal or existence, in or on the State Property, of asbestos or any hazardous substance. C. Transferee shall have until December 18, 2026 to complete any and all investigations and inspections of the Exchange Property ("Inspection Period"). Transferee may elect to end and waive any time remaining in the Inspection Period by delivering written notice to the Board, which notice shall operate to reduce the Inspection Period as provided in such notice. During the Inspection Period, if Transferee determines that the Exchange Property is not suitable or desirable for the Transferee's use for any reason, Transferee may elect to terminate the Agreement by notifying the Board in writing, at which time this Agreement shall terminate and the Earnest Money shall be refunded to the Transferee. Notwithstanding the preceding sentence, Transferee may not terminate this Agreement pursuant to this Section 5.c. if Transferee is in default under this Agreement. Termination of this Agreement by Transferee pursuant to this Section 5.c. shall not relieve Transferee of any obligation arising under the Agreement on or prior to the date of termination, and Transferee shall continue to be bound by any and all obligations owed but not performed as of the date of termination. Page 6 of 21 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 d. Transferee further acknowledges and agrees that it has been given the opportunity to inspect the State Property and that Transferee is relying solely on Transferee's own investigation of the State Property and not on any information provided or to be provided by the Board other than as is stated in this Agreement. Transferee acknowledges that Transferee may incur substantial costs and expenses in the inspection of the property and in connection with the transaction contemplated herein. Transferee further acknowledges and agrees that all such costs and expenses are at Transferee's sole risk and expense and that the Board shall have no obligation, liability, or responsibility to Transferee for such costs and expenses. Transferee further acknowledges and agrees that any information provided or to be provided by or on behalf of the Board with respect to the State Property was obtained from a variety of sources and that the Board has not made any independent investigation or verification of such information and makes no representations as to the accuracy or completeness of such information. The Board is not liable or bound in any manner by any verbal or written statements, representations, or information pertaining to the State Property, or the operation thereof, furnished by any real estate broker, agent, employee, servant, or other person. Transferee further acknowledges and agrees that to the maximum extent permitted by law, the exchange of the State Property as provided for herein is made on an "AS IS, WHERE IS, WITH ALL FAULTS" condition and basis. e. Transferee and anyone claiming by, through or under Transferee hereby fully and irrevocably releases the Board, the Board's employees, representatives, and agents, from any and all claims that Transferee may now have or hereafter acquire against the Board, the Board's employees, representatives, and agents for any cost, loss liability, damage, expense, demand, action, or cause of action arising from or related to any defects, errors, omissions, or other conditions, including environmental matters, affecting the State Property, or any portion thereof. f. It is understood and agreed that the Exchange Price reflects that all of the State Property is transferred by the Board and received by Transferee subject to this Paragraph 5. 6. Damaste, Liens and Indemnity. Transferee, except as otherwise provided in this Agreement, is responsible for payment for all inspections, tests, surveys, engineering reports, or any other work performed at Transferee's request ("Work") and shall pay for any damage which occurs to the State Property as a result of such Work. Transferee shall not permit claims or liens of any kind against the State Property for Work performed on the Property at Transferee's request. To the extent permitted by law, Transferee agrees to indemnify, protect and hold the Board harmless from and against any liability, damage, cost or expense incurred by Board and caused by any such Work, claims, or lien. The provisions of this section shall survive the termination of this Agreement. Page 7 of 21 Docusign Envelope ID: 7911FFA3-5D59-8ADE-8252-78767A774086 7. Special District Disclosure. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND EXCESSIVE TAX BURDENS TO SUPPORT THE SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES. TRANSFEREE SHOULD INVESTIGATE THE DEBT FINANCING REQUIREMENTS OF THE AUTHORIZED GENERAL OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS, EXISTING MILL LEVIES OF SUCH DISTRICT SERVICING SUCH INDEBTEDNESS, AND THE POTENTIAL FOR AN INCREASE IN SUCH MILL LEVIES. 8. Governor's Signature. The Board shall present the Patent to the Governor for signature and at[ parties shall utilize their best effort to obtain the Governor's signature provided, however, that nothing herein shall limit the extent, if any, to which the Governor is otherwise obligated by law to sign the Patent. If the Governor shall refuse to sign the Patent the Board shall advise Transferee of such fact, the Earnest Money, if previously paid, shall be returned to Transferee, and this Agreement shall terminate without closing without any costs or recourse against the Board. 9. Closing. a. The consummation of the exchange of the State Property ("Closing') shall take place at the Title Company as soon as reasonably possible after the Patent is signed by the Governor, at a time and place mutually agreed upon by the parties ("Closing Date"), but no later than February 26, 2027, unless an extension is mutually agreed to by the parties in writing. b. Transferee shall pay the Exchange Payment. C. All documents necessary for the consummation of this transaction shall be executed and delivered on or before the Closing Date. d. Upon verification of receipt of the Exchange Payment by the Title Company, the Board shall deliver, at its expense, a Patent or Deed for the State Property in recordable form executed on behalf of the Board, conveying the State Property to Transferee. e. The Board shalt deliver possession of the State Property to Transferee on the Closing Date. Page 8 of 21 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 f. Transferee shall pay all closing and recording fees. g. Prorations will be handled on an actual/365 basis. h. If the Closing is delayed for any reason beyond one year from the Effective Date, the Board shall have the right to obtain a new appraisal of the State Property and amend the Exchange Payment to equal the value established by the new appraisal. Transferee shall have the right to review and object to the new appraisal within forty-five (45) days after the day of receipt. If Transferee's objection is not resolved with thirty (30) days after Transferee' objection of the new appraisal then this Agreement shall be automatically terminated and all payments and things of value received under this Agreement shall be returned, including full return of the Earnest Money Deposit to Transferee. Otherwise, Transferee shall treat this Agreement as being in full force and effect and Transferee shall pay the amended Exchange Payment as established by the new appraisal. In no event will Transferee be able to claim offset or credit, or recover for improvements made to the State Property. Transferee will have no other remedy at law or in equity and Transferee expressly waives the remedy of damages. 10. Conditions to Closing. The obligation of the Board or Transferee to consummate the transaction contemplated by this Agreement is subject to the satisfaction, at or before Closing of the following conditions: a. The Board and Transferee shall have performed, satisfied and complied with all the covenants, agreements and conditions required by this Agreement to be performed or complied with by the Board and Transferee on or before the Closing Date. b. Transferee must, at its sole expense, obtain and provide to the Board a signed ALTA survey ("ALTA Survey") and written legal description prepared by a registered surveyor describing the State Property not less than 30 days prior to the Closing Date. The survey must include Table A item 4: Gross Land Area. The Board shall have no fewer than 10 business days to review and affirmatively approve said survey and legal description. C. The Board approves this transaction at a public board meeting of the State Board of Land Commissioners at or before its regularly scheduled October 2026 board meeting. If the Board does not approve this transaction this Agreement shall terminate and become null and void, and the Earnest Money shall be returned to the Transferee. d. The Transferee approves this transaction by approval of a resolution by the Avon Town Council which would be completed on or before October Page 9 of 21 Docusign Envelope ID: 7911FFA3-5D59-8ADE-8252-78767A774086 16, 2026. If the Transferee does not approve this transaction this Agreement shall terminate and become null and void, and the Earnest Money shall be returned to the Transferee. e. The Board or Transferee may waive any or all of these conditions in writing, in whole or in part, without prior notice; provided, however, that no such waiver of a condition shall constitute a waiver of either party's other rights or remedies if the other party shall be in default of any of the covenants under this Agreement. 11. Failure to Close. a. Transferee's Default. If Transferee, without the right to do so and in default of its obligations under this Agreement, fails to make the Exchange Payment contemplated by this Agreement, or fails to satisfy any other obligation under this Agreement, the Board may elect to treat this Agreement as being in full force and effect and the Board may elect to treat this Agreement as terminated and retain the Earnest Money as liquidated damages as provided in Paragraph 3 of this Agreement (Earnest Money; Liquidated Damages). In no event will Transferee be able to claim offset or credit, or recover for improvements made to the State Property. b. The Board's Default. Except as provided in Paragraph 8 of this Agreement (Governor's Signature), if the Board, without the right to do so and in default of its obligations under this Agreement, fails to convey the Patent contemplated by this Agreement, Transferee may elect to treat this Agreement as being in full force and effect and the Transferee shall have the right to obtain specific performance of obligations under this Agreement, or Transferee may elect to treat this Agreement as terminated and any Earnest Money paid shall be returned to Transferee. In no event will Transferee be able to claim offset or credit, or recover for improvements made to the State Property. Transferee will have no other remedy at law or in equity for such failure and Transferee expressly waives the remedy of damages. C. Notice That Time of Essence. Time is of the essence. Failure of Transferee to make any payment required under this Agreement, may, at the option of the Board, be determined to be a default. The Board may, but is not required to, allow Transferee to cure such non-payment within ten (10) business days of written notice from the Board of such default. Failure of either party to perform any other obligation required by this Agreement may, at the option of the other party, be determined to be a default; provided, however, that the party deemed in default shall be given ten (10) days written notice of the default and shall be allowed ten (10) days to cure the default. Page 10 of 21 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 d. Force Maieure. Neither party shall be liable to the other for damages for any failure or delay in performance under this Agreement caused directly or indirectly by any person, authority, event or circumstance beyond such party's reasonable control and without such party's fault or negligence, including without limitation, fire, casualty, strike, lockout, government control and shortages resulting therefrom, or act of God. 12. Miscellaneous. a. Parties in Interest. All of the terms and provisions of this Agreement will be binding upon, and inure to the benefit of, and be enforceable by the heirs, successors and permitted assigns of the respective parties. Nothing in this Agreement express or implied is intended to confer upon any other person any rights or remedies under or by reason of this Agreement, nor is anything herein intended to create any third party beneficiary status in any other party, except as herein clearly and expressly stated. b. Entire Agreement. There are and were no binding verbal or written representations, warranties, understandings, stipulations, agreements, or promises pertaining to the subject matter of this Agreement made by either party or any agent, employee, or other representative of either party not incorporated in writing in this Agreement or its Exhibits, and neither this Agreement nor any of the Exhibits, terms, provisions, conditions, representations, warranties, or covenants contained in this Agreement can be modified, changed, terminated, amended, superseded, waived, or extended except by an appropriate written instrument duly executed by the parties. C. Disputes. If a dispute arises relating to this Agreement, and is not resolved, the parties shall first proceed in good faith to submit the matter to mediation. The parties will jointly appoint an acceptable mediator and will share equally in the cost of such mediation. In the event the entire dispute is not resolved within thirty (30) calendar days from the date notice requesting mediation is sent by one party to the other, the mediation, unless otherwise agreed, shall terminate. This section shall not alter any date in this Agreement, unless otherwise agreed. d. No Assumption of Liabilities. Transferee has not assumed and does not agree to assume any of the Board's liabilities or obligations, except as specifically provided in this Agreement. e. Capacity. Transferee has the capacity and authority to enter into this Agreement and to consummate the transaction described herein without the joinder or consent of any other party, subject to approval of this Agreement by Page 11 of 21 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 adoption of resolution by the Avon Town Council as described in Section 10.d above and subject to other limitations stated in this Agreement. f. Statutory References. Any reference to any statutes or laws or regulations thereunder will include all amendments, modifications, or replacements of the specific sections and provisions concerned. g. Time. In the event the last day permitted for the performance of any act required or permitted under this Agreement falls on a Saturday, Sunday, or holiday, the time for such performance will be extended to the next succeeding business day. Time periods under this Agreement will exclude the first day and include the last day of such time period. All periods of time specified in this Agreement shall be counted in calendar days unless otherwise expressly stated. h. Section and Other Headines. The section and other headings contained in this Agreement are for reference purposes only and will not in any way affect the meaning or interpretation of the text of this Agreement. i. Notice. All notices required or permitted hereunder shall be in writing and shall be served on the parties at the following address: Any Notice to the Transferee shall be addressed: Town of Avon Eric Heil, Town Manager 100 Mikaela Way Avon, CO 801620 with a copy to: Nina Williams Wilson Williams Fellman Dittman 1314 Main Street, Suite 101 Louisville, CO 80027 Any Notice to the Board shall be addressed: Matt LaFontaine 1127 Sherman St, Suite 300 Denver, CO 80203 with a copy to: Ed Hamrick Office of the Attorney General 1300 Broadway, loth Floor Denver, CO 80202 Page 12 of 21 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 Any such notices shall be either (i) sent postage prepaid by certified U.S. mail, return receipt requested, in which case notice shall be deemed delivered on the first day that delivery was attempted as shown on the return receipt; (ii) sent by a nationally recognized overnight courier, in which case it shall be deemed delivered one business day after deposit with such courier; (iii) email with read receipt requested; or (iv) personally delivered in which case notice shall be deemed delivered on the same day such notice is so delivered. The above addresses may be changed by written notice to the other party; provided however, that no notice of a change of address shall be effective until actual receipt of such notice by the other party. Copies of notices are for informational purposes only, and a failure to give or receive copies of any notice shall not be deemed a failure to give notice. j. Assignment of Agreement. This Agreement may not be assigned without the consent of the Board, which consent shall be at the Board's sole discretion. k. Survival of Agreement Provisions. To the extent that the provisions herein set forth require performance to be completed subsequent to the Closing, such provisions shall survive the Closing and be binding upon the parties hereto, and shall not merge into the Patent to be delivered in accordance with this Agreement. All agreements and covenants by the parties, which the party to whom performance is owed could reasonably expect to be intended to survive Closing, shall survive Closing and not merge with the Patent. 1. Commissions. The Board states that no agents, brokers, or commissions are involved in this transaction. Any commissions or fees for any agents, brokers, or otherwise incurred by Transferee related to this transaction shall be the responsibility of Transferee and not the Board. M. Execution. By signing this document, the Board and Transferee acknowledge that this Agreement has important legal consequences and each has consulted with legal counsel before signing this Agreement. n. Counterparts and Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. Signatures may be delivered by facsimile or electronic copy. Facsimile or electronic signatures shall be binding on the parties as if they were originals. o. Full and Accurate Disclosure. No representation or warranty by Seller or the Board made in this Agreement, or in connection with the transaction contemplated, contains or will contain any untrue statement of material fact or omits Page 13 of 21 Docusign Envelope ID: 7911FFA3-5D59-8ADE-8252-78767A774086 or will omit to state a material fact necessary to make the standards contained therein not misleading. 13. Special Provisions. a. FUND AVAILABILITY. CRS g24-30-202(5.5). Financial obligations of the State or Transferee payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. b. GOVERNMENTAL IMMUNITY. Liability for claims for injuries to persons or property arising from the negligence of either the State or Transferee, or their respective departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the Colorado Governmental Immunity Act, 524-10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State's risk management statutes, SS24-30-1501, et seq. C.R.S. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, contained in these statutes. No term or condition of this Agreement 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, CRS S24-10-101 et seq., or the Federal Tort Claims Act, 28 U.S.C. SS1346(b) and 2671 et seq., as applicable now or hereafter amended. C. COMPLIANCE WITH LAW. Transferee shall strictly comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. d. CHOICE OF LAW, JURISDICTION, AND VENUE. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to this Agreement shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver. e. PROHIBITED TERMS. Any term included in this Agreement that requires the State to indemnify or hold Transferee harmless; requires the State to agree to binding arbitration; limits Transferee's liability for damages resulting from death, bodily injury, or damage to tangible property; or that conflicts with this provision in any way shall be void ab initio. Nothing in this Agreement shall be construed as a waiver of any provision of 524-106-109 C.R.S. Page 14 of 21 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 f. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. CRS S§24-18-201 and 24-50-507. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Agreement. Transferee has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Transferee's services and Transferee shall not employ any person having such known interests. 14. jintentionally deletedl. 15. Legal Counsel. THIS AGREEMENT IS A LEGAL INSTRUMENT. IF NOT UNDERSTOOD, LEGAL, TAX OR OTHER COUNSEL SHOULD BE CONSULTED BEFORE SIGNING. EACH PARTY HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY COUNSEL TO EXPLAIN, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS AGREEMENT. THE PARTIES REPRESENT THAT THEY HAVE EITHER RETAINED LEGAL COUNSEL, OR HAVE DECLINED TO DO SO. 16. Additional Conditions. a. This Agreement shall be subject to, and conditioned upon, Transferee obtaining various funding sources which are anticipated to contribute towards the necessary Exchange Payment by January 29, 2027 ("Financing Contingency Date"). These anticipated funding sources include Prop 123 Land Banking Grant funds, and potential funding contribution from Eagle County, Town of Vail, and/or Habitat for Humanity. If Transferee does not obtain adequate financing and funding contributions as determined in Transferee's sole discretion, then Transferee may provide a Notice of Financing Objection by January 29, 2027 and this Agreement shall automatically terminate and all things of value received shall be returned including the full return of the Earnest Money to the Transferee. b. Transferee represents that this transaction is exempt from Avon's two percent (2%) Real Estate Transfer Tax. (Signatures on following page) Page 15 of 21 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 IN WITNESS WHEREOF, the parties executed this Agreement as of the date first written. Town of Avon Signature: CD—Si �gned by: 4476 Eric Heil, Avon Town Manager State of Colorado County of Eagle day-e€ —ice Page 16 of 21 the Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 STATE OF COLORADO ACTING BY AND THROUGH THE STATE BOARD OF LAND COMMISSIONERS By: Eliot Hoyt Title: Assistant Director of Sustainabilitv and ykoiglnadesState Board of Land Commissioners oocuSipea by: Signature: P,/nDF6693245A State of Colorado City Et County of Denver Page 17 of 21 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 EXHIBIT A Legal Description A portion of Section 16, Township 5 South, Range 81 West, North of Interstate 70 in Eagle County, Colorado totaling 76.116 gross acres, more or less; as depicted on the map below. A legal description based on the ALTA Survey provided under Paragraph 10.b. of this Agreement will be substituted when complete. tFv I 1 �.iYY..MFNxM �u((I •ItUIM. t'-' - �I.IYt�I(NIIIY.4YYI�tIM/M� COLORADO , A SY.te IMW Bone Page 18 of 21 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 EXHIBIT B Covenants, Easements, Restrictions, Rights of Ways, Other Encumbrances in Board's ATLAS Asset Management Database 102943 DENVER Et RIO GRANDE WSTN RR CO [54147-8528] 103203 CDOT DENVER [53924-8326] 103295 C W SMITH [55476-9803] 104146 HOLY CROSS ELECTRIC ASSN INC [54557-8907] 104160 CDOT DENVER [53924-8326] 104187 MTN STATES TEL Et TEL CO/DENVER [51531-6199] 104222 CDOT DENVER [53924-8326] 104223 HOLY CROSS ELECTRIC ASSN INC [54557-8907] 104224 HOLY CROSS ELECTRIC ASSN INC [54557-8907] 104236 UPPER EAGLE VLY SANITATION DIST 104241 SCHOOL DIST RE-503/EAG [54571-8920] 104250 JACK OLESON 104258 COLORADO-UTE ELEC ASSN 104311 HOLY CROSS ELEC ASSN INC/GLEN [51015-5693] 104318 SCHOOL DISTRE-50J/EAG [54621-8966] 104353 PUBLIC SERVICE CO COLO 104383 MTN STATES TEL Et TEL CO/DENVER [51531-6199] 104538 HOLY CROSS ELEC ASSN INC/GLEN [51015-5693] 104542 MTN STATES TEL Et TEL CO/DENVER [51531-6199] 104560 EAGLE COUNTY [54766-54766] 104584 HOLY CROSS ELECTRIC ASSN INC [54557-8907] 104612 UPPER EAGLE VLY SANITATION DIST Page 19 of 21 Docusign Envelope ID: 7911FFA3-5D59-8ADE-8252-78767A774086 EXHIBIT B cont. 105120 VAIL VALLEY CONSOLIDATED WATER [57609-11832] 105121 UPPER EAGLE VLY CONSOL SAN DIS [56395-10689] 105199 PUBLIC SERVICE COMPANY OF COLORADO RIGHTS OF WAY Et PERMITS 105271 EAGLE RIVER WATER &SANITATION [61139-14338] 105287 EAGLE COUNTY GOVERNMENT [63450-63450] 105295 HOLY CROSS ENERGY [93819-93819] 105354 EAGLE COUNTY [54766-54766] 105463 PUBLIC SERVICE COMPANY OF COLORADO RIGHTS OF WAY Et PERMITS 112173 HOLY CROSS ELECTRIC ASSN INC [54557-8907 *The above items shall be removed from the Patent only upon confirmation by surveyor that they do not encumber the State Property. Page 20 of 21 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 EXHIBIT C State Surface Leases State Lease No. Type of Lease Lessee Terminate or Payments owed and by Assign? whom 117726 Ground Lease VAIL HOME Assign Prepaid rents credited PARTNERS to Transferee CORPORATION 111021 Timber Colorado State amended to none Management Forest Service remove State Property 115930 Hunting and Colorado Parks amended to none Fishing and Wildlife remove State Access Property Page 21 of 21 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 oe polo STATE OF COLORADO STATE BOARD OF LAND COMMISSIONERS NO SURFACE OCCUPANCY AGREEMENT Agreement No. THIS NO SURFACE OCCUPANCY AGREEMENT (the "Agreement"), dated - - ("Effective Date"), is made and entered into by and between the STATE OF COLORADO, acting by and through the STATE BOARD OF LAND COMMISSIONERS ("Board"), located at 1127 Sherman Street, Denver, CO 80203 and the TOWN OF AVON, a home rule municipal corporation of the State of Colorado ("Avon"), whose address is 100 Mikaela Way, Avon, CO 801620. The Board and Avon are referred to in this Agreement individually as a "Party" and collectively as the "Parties". RECITALS WHEREAS, the Board and Avon entered into that certain Agreement to Non - Simultaneous Exchange of Real Property, effective as of [date] ("NSE Agreement"); WHEREAS, pursuant to the NSE Agreement, the Board conveyed to Avon the real property described in Patent No. [X], effective as of the Effective Date ("Patent") subject to the reservations and exclusions set forth therein ("Patent Property"); WHEREAS, among the reservations to the Board in the Patent, the Board reserved title and all rights to any and all surface and sub -surface pore space, minerals, ores, and metals, of any kind and character, and all coal, asphaltum, oil, gas, or other like substances, and all geothermal resources in, on, or under the Patent Property (such retained estate referred to as the "Reserved Mineral Estate") and rights of ingress and egress in, on, under, over, across and through the Patent Property for the purposes of exploration, production, mining, extraction, storage, sequestration, and removal of or access to such substances and resources, together with enough of the surface as may be necessary for the proper and convenient working of such substances and resources, and the right to cross Avon's land adjoining the Patent Property, if any, to access the Reserved Mineral Estate; WHEREAS, on property adjacent to the Patent Property, the Board owns certain surface and sub -surface pore space, minerals, ores, and metals, of any kind and character, and all coal, asphaltum, oil, gas, or other like substances, and all geothermal resources in, on, or under the adjacent property ("Adjacent Mineral Estate"); and WHEREAS, the surface property subject to this Agreement is set forth and described on Exhibit A attached hereto and made a part hereof, which is the same as the Patent Property; NOW, THEREFORE, for good and valuable consideration, including the Consideration set forth in the NSE Agreement, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows. Page 1 of 8 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 AGREEMENT 1. TERM - The term of the Agreement shall be ninety-nine (99) years until - - ("Term"), and subject to renewal at the written election of the Board, acting in its sole discretion. Renewal may be subject to new terms and conditions (including requiring additional consideration) as determined by the Board in its sole and absolute discretion and consistent with the then -current policies, procedures, rules, regulations, and laws applicable to the Board. 2. CONSIDERATION - At Closing of the transactions contemplated by the NSE Agreement, Avon agreed to restrict development and use of the Patent Property to deed restricted residential workforce housing and accessory uses as are defined in the Town of Avon's applicable Community Housing zone district designation ("Community Housing") and parks, open space and recreation uses with a right to profits, right of first refusal, and reversionary clause as provided in the NSE Agreement as consideration ("Consideration") for the Board's entry into this Agreement. 3. PERMITTED PRODUCTION - The Board, and any of its duly -authorized contractors, agents, permittees, lessees, licensees, or representatives of any kind (collectively, "Board Representatives"), may exercise any and all rights they have to the Reserved Mineral Estate, which include without limitation, the right to drill, inject into, sequester, excavate, dredge, mine, extract, explore for or otherwise develop, or cause such development, and/or lease for such development any pore space, mineral resources and hydrocarbons located in, on, under or below the surface of the Patent Property provided that such exercise will not occupy, or permit a third party to occupy, the surface of the Patent Property, and further provided that (i) the Board shall require that any third party operator shall comply with any and all applicable laws and regulations, including those related to the structural integrity of the surface of the Patent Property, and (ii) any instrument granting the exercise of such rights to a third party shall require the third party to act as a reasonably prudent operator with respect to protecting the overlying surface of the Patent Property. When developing any mineral resources, pore space, and hydrocarbons under the Patent Property the Board and the Board Representatives shall comply with the rules and regulations of the Colorado Energy and Carbon Management Commission (ECMC), the Department of Reclamation, Mining and Safety (DRMS), the Colorado Department of Public Health and the Environment (CDPHE), Eagle County, Avon, and any other governmental agency with authority to regulate such activities. It is understood by the Parties that this Agreement and restrictions of Section 3 pertain only to the use of the surface of the Patent Property, exclusive of pore space, in connection with development of the Reserved Mineral Estate. This Agreement is not intended to and shall not restrict, prohibit or limit in any way (i) the use of the Board's surface estate, Adjacent Mineral Estate or other property rights, privately -owned or otherwise, adjacent to or surrounding the Patent Property, (ii) any rights to or use of the Reserved Mineral Estate owned by the Board, except as expressly set forth in this Page 2 of 8 Docusign Envelope ID: 7911FFA3-5D59-8ADE-8252-78767A774086 Section 3; (iii) any rights the Board may have to access and/or develop its other rights reserved in Patent No. [X], including without limitation any water rights or rights to cultural resources; and (iv) any rights of the Board to use pore space underlying the Patent Property. 4. TRANSFER AND ASSIGNMENT - The Board and Avon agree and acknowledge that this Agreement, including any provision herein, shall not create any (i) covenant, (ii) right or obligation which shall run with the land, or (iii) any type of perpetual right or obligation. The Parties expressly intend that this Agreement and the mutual promises contained herein are personal to the Parties and shall not be assignable or delegable and shall not bind or be enforceable by subsequent owners of all or a portion of the surface of the Patent Property or Reserved Mineral Estate. Avon may transfer or assign this Agreement to subsequent owners of the surface of the Patent Property only with the prior, written consent of the Board, which consent the Board may withhold, condition or delay in its sole and absolute discretion. Any assignment or transfer of this Agreement contrary to this Section 4 shall be void ab initio and shall give the Board the option to terminate this Agreement upon written notice to Avon. Any assignments approved pursuant to this Section will be subject to the assignment fee set by the Board in effect at the time assignment approval is requested. 5. NO SURFACE OWNER RIGHT TO MINERAL ESTATE OR TO DEVELOP MINERALS - Avon agrees and acknowledges that this Agreement does not provide any right for Avon to engage in any extraction, exploration, development, or other activity in connection with the development, of the Reserved Mineral Estate. Avon must obtain a mineral lease or other authorization from the Board in connection with any such activity, and such activity will be subject to all terms and conditions of such agreement. In the event Avon, without written agreement or other written authorization from the Board, engages or permits any extraction, exploration, development, or other activity in connection with the development, of the Reserved Mineral Estate, the Board may pursue any and all claims available at law or equity and may terminate this Agreement upon written notice to Avon. 6. SURRENDER AND TERMINATION a. Avon may at any time surrender and cancel this Agreement insofar as the same covers all or any portion of the Patent Property, provided that this surrender clause shall become inoperative immediately and concurrently with the institution of any suit in any court of law by Avon, the Board, or any assignee of the Board to enforce this Agreement or any of its terms, express or implied. b. This Agreement shall terminate if the Patent Property reverts to the Board. c. If this Agreement is cancelled, surrendered, or terminated for any reason, the Consideration shall be forfeited and the Board shall not make any refunds to Avon, and Avon expressly waives any right it may have to repayment of the Consideration. Page 3 of 8 Docusign Envelope ID: 7911 FFA3-5D59-8ADE-8252-78767A774086 7. UNIT AGREEMENTS - The Board may permit the Reserved Mineral Estate to be unitized or pooled with other lands, provided that such unit agreement requires any operator of a unitized or pooled area that includes any portion of the Reserved Mineral Rights to be subject to the terms, conditions and limitations of this Agreement. 8. COMPLIANCE WITH LAW - Nothing in this Agreement shall be construed as a waiver by the Board of any right or remedy given to it by law for the administration of Board owned minerals or other property rights. 9. FALSE STATEMENTS AND NONCOMPLIANCE - Any material misrepresentation or false statement by Avon, or failure to comply with any of the conditions set out in this Agreement or in the No Surface Occupancy Application, which shall be incorporated herein and made a part hereof, may, at the discretion of the Board, result in cumulative remedies which include penalties, immediate termination of this Agreement, or an action for damages. 10. CONDEMNATION - If the Board's Reserved Mineral Estate shall be taken in any condemnation proceeding, this Agreement shall automatically terminate as of the date of taking. If only a portion of the Reserved Mineral Estate is taken by condemnation, only that portion of the Agreement relating to the Patent Property overlying the Reserved Mineral Estate so taken shall terminate. Any award for condemnation of the Board's Reserved Mineral Estate shall be paid to, and wholly retained by, the Board. 11. ENTIRE AGREEMENT AND AMENDMENTS - This Agreement and all documents incorporated herein by reference represent the entire agreement between the Parties hereto. Prior or contemporaneous additions, deletions, or other changes to this Agreement will not have any force or effect whatsoever, unless written in this Agreement. No oral agreement shall be held to vary the provisions hereof. This Agreement shall not be amended or ratified except by written document executed by the Parties hereto. 12. GOVERNING LAW, JURISDICTION, AND VENUE - This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. The exclusive jurisdiction for all suits, actions, or proceedings related to this Agreement will be in the State of Colorado and the exclusive venue will be in the City and County of Denver. 13. NO JOINT VENTURE - The Board is not and will not be construed to be a partner, joint venturer or associate of Avon in the conduct of the business of Avon. The Board shall not be liable for any debts incurred by Avon in the conduct of Avon's business. 14. NO THIRD PARTY BENEFICIARY - Nothing in this Agreement is intended, nor will be deemed, to confer rights or remedies upon any person or legal entity not a party to this Agreement including without limitation any party to whom Avon conveys all or a portion of the Patent Property. Page 4 of 8 Docusign Envelope ID: 7911FFA3-5D59-8ADE-8252-78767A774086 15. RIGHT TO ENFORCE - If Avon conveys all or a portion of the Patent Property, Avon shall retain the right to enforce this Agreement for the duration of the Term for all the Patent Property including any portion conveyed. 16. CONSTRUCTION AGAINST THE DRAFTER - In the event of an ambiguity in this Agreement the rule of construction that ambiguities will be construed against the drafter does not apply and the parties hereto will be treated as equals and no party will be treated with favor or disfavor. 17. GOVERNMENTAL IMMUNITY - Liability for claims or injuries to persons or property arising from the negligence of the State of Colorado, its departments, institutions, agencies, boards, officials, and employees is controlled and limited by the provisions of the Governmental Immunity Act, C.R.S. 5 24-10-101 et seq., and the risk management statues, C.R.S. 5 24-30-1501 et seq., as amended. Avon represents that its liability for claims or injuries to persons or property arising from the negligence of Avon, its directors, officials, and employees is controlled and limited by the provisions of the Governmental Immunity Act, C.R.S. 5 24-10-101 et seq. No term or condition of this Agreement will be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the Governmental Immunity Act as applicable now or hereafter amended. 18. COLORADO OPEN RECORDS ACT ("CORA") DISCLOSURE - To the extent not prohibited by federal law, this Agreement and the performance measures if any, are subject to release through CORA, C.R.S. S 24-72-200.0 et seq. 19. COUNTERPARTS - This Agreement may be executed in any number of counterparts, each of which shalt be deemed to be an original, but all of which taken together shall constitute one and the same agreement. 20. SIGNATURES - Signatures required in this Agreement shall be either original "wet" handwritten signatures or digital signatures in accordance with the Colorado State Controller Contract, Grant and Purchase Order Policies regarding the use of digital signatures issued under the State Fiscal Rules. If any signatory signs this Agreement using a digital signature in accordance with the Colorado State Controller Contract, Grant and Purchase Order Policies regarding the use of digital signatures issued under the State Fiscal Rules, then any agreement or consent to use digital signatures within the electronic system through which that signatory signed shall be incorporated into this Agreement by reference. 21. AUTHORITY - If Avon is an entity other than an individual, each individual executing this Agreement on behalf of said entity represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of said entity and that this Agreement is binding upon said entity in accordance with its terms. Each person or entity signing the Agreement on behalf of the Board has the full and unrestricted authority to execute and deliver this Agreement and to grant the rights granted herein. Page 5 of 8 Docusign Envelope ID: 7911FFA3-5D59-8ADE-8252-78767A774086 22. NO WAIVER - The failure of either Party to insist, in any one or more instances, upon a strict performance of any of the obligations, covenants, or agreements contained within this Agreement shall not be construed to constitute a waiver, relinquishment, or release of such obligations, covenants, or agreements. 23. SUBJECT TO EXISTING ENCUMBRANCES - This Agreement is subject to any and all covenants, restrictions, easements or rights -of -way, whether or not visible on the ground and whether or not of record. 24. NO RECORDING - Neither Party may record this Agreement in any real property records. Recordation of this Agreement will be grounds for termination at either Party's option, effective upon written notice to the other Party. If this Agreement is recorded in breach of this Section, both Parties agree to take such action, and cause such things to be done, to evidence the relinquishment and termination of this Agreement in the appropriate county records within five (5) business days of the termination of this Agreement. [signature page follows] Page 6 of 8 Docusign Envelope ID: 7911FFA3-5D59-8ADE-8252-78767A774086 IN WITNESS WHEREOF, the Board and the Avon, by their signatures below, agree to the terms of this Agreement, effective as of the Effective Date: TOWN OF AVON: By: Eric Heil, Avon Town Manager Date Attest: Miguel Jauregui Casanueva Date Approved As to Form: Nina Williams, Town Attorney Date STATE OF COLORADO BY THE STATE BOARD OF LAND COMMISSIONERS By: Benjamin Teschner, Solid Minerals Manager Date Page 7 of 8 Docusign Envelope ID: 7911FFA3-5D59-8ADE-8252-78767A774086 EXHIBIT A A portion of Section 16, Township 5 South, Range 81 West, North of Interstate 70 in Eagle County, Colorado totaling 76.116 gross acres, more or less; as depicted on the map below. A legal description based on the ALTA Survey provided under Paragraph 10.b. of Non -Simultaneous Exchange Agreement between the Parties will be substituted when complete. 'h IbYTa I • k. f. .�4 fto, COLORADO 51tte laM BoerA d DIRECT EXCHANGE PARCELS 5. _ Page 8 of 8