04-28-2015 Revised IGA for Joint Public Safety Facility& PLANNING,LC M E M O R A N D U M
TO: Honorable Mayor Fancher and Town Council members
FROM: Eric J. Heil, Town Attorney
RE: Revised IGA for Joint Public Safety Facility
DATE: April 28, 2015
Summary: The Intergovernmental Agreement with the Eagle River Fire Protection District is presented to
the Council for approval. The Council reviewed the revised draft of the IGA at a work session on April 21,
2015 and did not indicate any desire for changes or further revisions. The Eagle River Fire Protection
District approved this Intergovernmental Agreement at its last meeting.
The Charter requires Council to approve this Agreement by the current vote of five Council members.
Thank you, Eric
Attachments: Final version of IGA with Eagle River Fire Protection District
Heil Law & Planning, LLC Office: 303.975.6120
3445 S. Clermont St. Fax: 720.836.3337
Denver, CO 80222 E -Mail: eric @heillaw.com
INTERGOVERNMENTAL AGREEMENT
FOR A JOINT FIRE- POLICE STATION FACILITY
BETWEEN THE TOWN OF AVON AND
THE EAGLE RIVER FIRE PROTECTION DISTRICT
THIS INTERGOVERNMENTAL AGREEMENT ( "Agreement ") is made and entered
into on April 28, 2015, ( "Effective Date ") by the Town of Avon, a home rule municipal
corporation of the State of Colorado ( "Avon ") and the Eagle River Fire Protection District, a
quasi - municipal corporation and political subdivision of the State of Colorado organized under
Title 32 of the Colorado Revised Statutes ( "Fire District ") (collectively, the "Parties," and each
individually a "Party ").
RECITALS
WHEREAS, the Fire District is under contract to sell Lot 1A, Buck Creek PUD, as described
and defined in the Plat recorded December 30, 2009, at Reception No. 200927819, County of
Eagle, State of Colorado ( "Lot IA "), and in accordance with the terms of a purchase and sale
agreement with Avon MOB LLC ( "Avon MOB ") with an effective date of February 25, 2015;
and the Fire District is under contract to acquire Lot 1B, Buck Creek PUD, as described and
defined in the Plat recorded December 30, 2009, Reception No. 200927819, County of Eagle,
State of Colorado ( "Lot 111"), and in accordance with the terms of an assigned purchase and sale
agreement between Avon MOB and Buck Creek Associates LTD, a Colorado corporation
( "Buck Creek Assoc. ") with an effective date of February 25, 2015, which sale of Lot lA and
acquisition of Lot 1B is intended to enable the Fire District to proceed with the design, financing
and construction of a joint Fire District fire station and Avon police station facility on Lot 1B
( "Joint Facility "); and,
WHEREAS, Avon desires to support and facilitate the Fire District's ability to sell Lot lA and
acquire Lot 1 B and pursue a Joint Facility with Avon for reasons which include but are not
limited to: (1) establishing an improved fire station facility to serve the Avon region with a
location that can improve response times and with a facility that can house a ladder truck to
improve response time to tall buildings in and near Avon; (2) establish a joint public safety
facility with the Avon police department and thereby promote significant efficiencies in
cooperation and coordination as well as improve operational efficiencies through shared space;
and, (3) facilitate the relocation of the existing Fire District regional fire station located in Avon
from property owned by Avon in the central core area to enable Avon to plan and reuse this site
for other municipal and/or public purposes; and,
WHEREAS, the proceeds of the sale of Lot IA are insufficient to repay in full the existing debt
on Lot lA and the Fire District has requested that Avon provide temporary financing in an
amount not to exceed $830,000.00 ( "Temporary Financing ") to assist the Fire District's ability
to sell Lot I and to acquire Lot 1B while maintaining reasonable Fire District reserves; and,
WHEREAS, Avon and the Fire District desire and intend that Avon and the Fire District will
diligently design a Joint Facility and will cooperate on all matters related to determining the
optimum programing, financing and construction terms for the Joint Facility; and,
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WHEREAS, Avon represents its desire and intent to aquire an undivided or proportionate
interest in Lot 1B upon completion of the design and closing on construction financing for a
Joint Facility ( "Construction Closing ") and to apply the outstanding balance of the Temporary
Financing towards Avon's proportionate share of the Joint Facility for the Avon police station as
such amount is further defined in this Agreement; and,
WHEREAS, the Fire District has taken actions to appropriate funds as required in this
Agreement and has taken action to approve the purchase and sale agreement for Lot IA, Buck
Creek PUD and the purchase and sale agreement for Lot 113, Buck Creek PUD; and,
WHEREAS, Avon has taken action to appropriate funds as required in this Agreement; and,
WHEREAS, Avon and the Fire District desire to set forth the terms and conditions for Avon and
ERFPD concerning the terms of short term financing provided by the Town of Avon and the
design, construction, ownership and operation of a joint fire and police station facility; and,
WHEREAS, this Agreement is authorized pursuant to §29 -1 -201 and §30 -11 -101, Colorado
Revised Statutes, as amended, and Article XIV, Section 18, of the Colorado Constitution.
NOW THEREFORE, in consideration of the covenants and mutual agreements contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the Parties, the Parties hereto agree as follows:
1. Effective Date. This Agreement shall commence on the Effective Date.
2. Intent. It is the intent of Avon and the Fire District to jointly design, finance and
construct a Joint Facility in accordance with the following terms and schedule:
a. Fire District to sell Lot 1 A and purchase Lot 1 B by June 8, 2015, or as of any date to
which the closing may be extended, which is anticipated to be a simultaneous
property closing ( "Property Closings "). Avon agrees to provide Temporary
Financing to assist with the sale of Lot 1 at the Property Closings.
b. Fire District and Avon to commence design of a Joint Facility promptly after the
Property Closings and to complete design of a Joint Facility by June 1, 2016.
C. Fire District and Avon to jointly bid the Joint Facility project in the third or fourth
quarter of 2016.
d. Fire District and Avon to determine the best available construction financing and to
determine the terms for ownership and repayment by and between the Fire District
and Avon by the first quarter of 2017.
e. Provided that all construction financing for the Joint Facility has been approved and
both the Fire District and Avon have obtained all necessary approvals for permanent
financing of the Joint Facility, Fire District and Avon to enter into a contract, or
contracts, to construct the Joint Facility, close on construction financing, and
commence construction by the second quarter of 2017. Provided construction
financing and all approvals for permanent financing are in place, Fire District intends
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to convey an undivided interest in Lot 113 to Avon based on site design and
proportionate share of site usage. Fire District and Avon agree to revise, amend,
modify and/or update the terms for ownership and repayment of Construction
Financing as determined appropriate.
f. Provided all conditions for commencement of construction have been satisfied as
provided above in a timely manner, Fire District and Avon to complete construction
of Joint Facility and move in to new facility in the third quarter of 2018.
g. Avon hereby acknowledges and confirms that that both the sale and conveyance of
Lot 1 A and the acquisition of Lot 1 B by the Fire District are exempt from Avon's real
property transfer tax which shall not apply when the transfer is one in which a district
or other political subdivision of the State is either grantor or grantee, Section
3.12.060(1), Avon Home Rule Charter and Code. Avon agrees to provide whatever
documentation may be required to confirm this exemption to any title company or
closing agent for either transaction.
h. Fire District represents that it intends to continue to budget and appropriate
approximately $400,000 per year towards the design and construction of a Regional
Fire Station Facility to be located on Lot 113, including the repayment of the
Temporary Financing and the lease - purchase agreement into which the Fire District
expects to enter to finance the acquisition of Lot 113; or, if repayment of the
Temporary Financing is no longer necessary upon Construction Closing as is further
defined in the terms of this Agreement, for payment of the Fire District's
proportionate share of the capital costs for a Joint Facility for the fire station as such
amount is further defined in this Agreement
3. Temporary Financing.
a. Appropriation of Funds by Avon. Avon has appropriated [EIGHT HUNDRED
AND THIRTY THOUSAND DOLLARS ($830,000.00)] and represents and agrees
that such amount is available to the Fire District for temporary financing
( "Temporary Financing ") to be used exclusively for the pay -off of the existing
financing on Lot lA by defeasance of the outstanding Certificates of Participation
issued in 2009 and which Temporary Financing shall be provided subject to the terms
and conditions described in this Agreement.
b. Tender of Funds at Closing. Avon agrees to provide and make available good funds
in an amount not to exceed $830,000.00 at the Closing on Lot lA by wire transfer to
the Closing Agent for Lot IA.
C. Terms of Repayment. The Fire District shall enter into a promissory note ( "Note ")
with Avon with the following terms:
i. The Fire District and Avon are both governmental entities representing the same
taxapayers as regards this project within the jurisdictional boundaries of the Town
of Avon; therefore, these parties agree that the funds advanced by Avon shall be
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repayable by the Fire District without interest, with the exception that interest due
in the event of default shall be at the rate of EIGHT PERCENT (8 %) per annum.
ii. Payment shall be made in semi - annual payments commencing on December 1,
2015 and continuing on June 1 and December 1 thereafter until the principal
balance of the Promissory Note is paid in full. Each semi - annual principal payment
shall be equal to not less than ten percent (10 %) of the original principal amount of
the Temporary Financing provided by Avon, without interest and with no penalty
for prepayment. A payment schedule shall be prepared and approved by both
parties after the financing of the District's purchase of Lot 1B is finalized.
iii. Avon agrees that any repayment of the Temporary Financing received by Avon
shall be earmarked and pledged as a contribution towards Avon's proportionate
share of the Joint Facility until this Agreement expires.
iv. If the Parties proceed with the issuance of Construction Financing for a Joint
Facility as contemplated below prior to the full repayment of the Temporary
Financing and expiration of the Term of this Agreement, then the outstanding
balance of the Temporary Financing may be extinguished and such amount may be
applied as a credit for the benefit of Avon for Avon's proportionate share of the cost
of Lot 1 B and cost of the construction of the Joint Facility.
d. Collateral for Payment of Promissory Note. Fire District agrees that collateral for
repayment of the Promissory Note shall consist of the dedicated land for a Fire
District Facility in the Village (at Avon), described as Tract E, Final Plat, The Village
At Avon Filing 3, according to the plat thereof recorded on June 29, 2004, at
Reception No. 882176 ( "Tract E "). In the event that the Fire District is in default in
the repayment of the Temporary Financing for a period of more than 12 months, then
the Town may submit a written demand for conveyance of Tract E. Upon receipt of a
written demand by the Town, the Fire District shall take action within ninety (90)
days to either (1) cure any and all default in repayment of the Tempoary Financing, or
(2) execute and record a Quitclaim Deed conveying Tract E to the Town.
e. Appropriation for Repayment. The Fire District agrees to appropriate not less than
ONE - HUNDRED THOUSAND DOLLARS ($100,000.00) for repayment of the
Temporary Financing for its fiscal year ending December 31, 2015.
f. Payment Obligation. The Fire District's payment obligation to repay the Temporary
Financing shall be subject to annual budget and appropriation, which shall be
determined in the sole discretion of the Fire District. The Fire District agrees to
consider in good faith including such payment in the annual budget for each year in
which payments are to be made.
4. Pre - Conditions to Temporary Financing. As a pre- condition to Avon providing the
Temporary Financing funds, the following contingecies shall all be satisfied:
a. Development Application Approval for Lot 1A. Avon MOB LLC, as the
development application applicant, shall obtain approval of an Avon Comprehensive
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Plan amendment application, Rezoning application, and Development Plan
application and other development applications for Lot 1A as may be applicable
pursuant to Avon's regulations. This Agreement shall not operate to compel, restrict,
or influence in any manner Avon's discretionary authority to review and act upon
development applications in accordance with applicable regulations and procedures
of the Town of Avon. The District acknowledges and agrees that Avon retains its
complete discretionary authority to review development applications in accordance
with the public process and in accordance with applicable review criteria.
b. Development Application Approval for Lot 1B. The Fire District shall obtain
approval of an Avon Comprehensive Plan amendment application and Rezoning
application for Lot 1B. This Agreement shall not operate to compel, restrict, or
influence in any manner Avon's discretionary authority to review and act upon
development applications in accordance with applicable regulations and procedures
of the Town of Avon. The District acknowledges and agrees that Avon retains its
complete discretionary authority to review development applications in accordance
with the public process and in accordance with applicable review criteria.
C. Closing on Lot 1A. Any and all contingencies for the sale of Lot lA shall be
satsified, including but not limited to pay -off of existing financing.
d. Closing on Lot 1B. Any and all contingencies for the purchase of Lot 1B by the Fire
District shall be satsified, including but not limited to closing on financing for
acquisition of Lot 1 B.
5. Design. Avon and the Fire District agree to commence and complete design of a Joint
Facility promptly after the Property Closings, in accordance with the following terms:
a. Design Process. Avon and the Fire District shall mutually determine the proposed
scope of work, minimum qualifications for designers, request for qualifications and/or
request for proposals, procedure for selecting a designer, contract to retain a design,
administration of the design process and acceptance of the work and final design.
The design process shall result in a final Joint Facility design ( "Joint Facility
Design ") that will be used by the Parties for construction bids, financing and
construction of the Joint Facility. The design process is more fully described in
Exhibit A: Joint Design Process which shall be subject to amendments, revisions
and extensions as may be mutually agreed by Avon and Fire District.
b. Appropriation by Avon. Avon has appropriated and agrees to make available
$100,000.00 in 2015 in funds, or such additional amount or amounts deemed
appropriate by Avon, for Avon's proportionate share of design of a Joint Facility.
C. Appropriation by Fire District. Fire District has appropriated and agrees to make
available $100,000.00 in 2015 in funds, or such additional amount or amounts
deemed appropriate by the Fire District for Fire District's proportionate share of
design of a Joint Facility.
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6. Construction Bid Process. Avon and the Fire District shall mutually determine a
construction bid process for the Joint Facility using the adopted Joint Facility Design.
7. Construction Financing. Avon and the Fire District shall cooperatively explore the best
financing options for the construction of the Joint Facility, which may include consideration of
any financing method legally available to Avon or the Fire District. Avon and/or the Fire
District may be required to refer debt authorization to the each entity's electorate in accordance
with Section 20 of Article X of the Colorado Constitution ( "TABOR"). Avon and the Fire
District each reserve the right to refer a ballot issue on financing or any other matter associated
with the Joint Facility to their respective electorate.
8. Sale and Conveyance of Portion of Lot 1B to Avon. If the Parties have agreed on a
Joint Facility Design and have secured Construction Financing as hereinabove required, then it is
the intent of the Fire District to sell and convey that portion of Lot 1B to Avon which is required
to serve the Police Station facility as shall be mutually determined, along with a party wall
agreement; which may include common areas of joint ownership including but not limited to:
driveway access, parking, hallways, reception areas, break rooms, bathrooms, and meeting room
space; and which may include a combination of a deeded portion of Lot 113 and common
ownership; or, may include other property ownership interests as mutually determined
appropriate by the Parties. The Parties agree that Avon's proportionate share shall be applied to
the total cost of acquisition of Lot 113 by ERFPD and such amount shall not be adjusted for
appreciation, depreciation or fair market value appraisal.
9. Construction. Avon and the Fire District shall mutually determine the form of
construction contracts, the administration of the construction contracts and construction process,
and the acceptance of the construction of the Joint Facility.
10. Term. This Agreement shall expire on June 2, 2020.
11. Arbitration. The Parties agree that any dispute that may arise under this Agreement will
be resolved by arbitration.
12. No Third Party Beneficiaries. Nothing herein expressed or implied is intended or
should be construed to confer or give to any person or corporation or governmental entity other
than the Fire District and the Town, any right, remedy or claim under or by reason hereof or by
reason of any covenant or condition herein contained, nor limit in any way the powers and
responsibilities of the Town, the Fire District, or any other entity not a parry hereto.
13. Severability. If any portion of this Intergovernmental Agreement is held invalid or
unenforceable for any reason by a court of competent jurisdiction as to either Party or as to both
Parties, such portion shall be deemed severable and its invalidity or its unenforceability shall not
affect the remaining provisions; such remaining provisions shall be fully severable and this
Agreement shall be construed and enforced as if such invalid provisions had never been inserted
into this Agreement.
14. Amendments. This Agreement may be amended from time to time by a written
agreement duly authorized and executed by all the Parties to this Agreement.
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15. Survival of Terms. The Parties understand and agree that all terms and conditions of the
Agreement that require continued performance, compliance, or effect beyond the termination
date of the Agreement shall survive such termination date and shall be enforceable in the event
of a failure to perform or comply.
16. Assignment. The Parties agree that neither Party hereto can assign this Agreement, or
any right or obligation contained herein, to another party without the express written consent of
the other Party and any attempt to do so shall be void and ineffective.
17. Complete Agreement. This Agreement represents the full and complete understanding
of the Parties, and supersedes any prior agreements, discussions, negotiations, representations or
understandings of the Parties with respect to the subject matter contained herein.
18. Governing Law, Venue. This Agreement shall be governed and construed in
accordance with the laws of the State of Colorado. Venue for any District Court action shall be
in Eagle County, Colorado.
19. Notices. All notices, requests, demands, consents and other communications hereunder
shall be transmitted in writing and shall be deemed to have been duly given when hand - delivered
or sent by certified, United States mail, postage prepaid, with return receipt requested, or sent via
electronic transmission provided that such transmission is acknowledged by the receiving Party,
addressed to the Parties as follows:
TO ERFPD:
The Eagle River Fire Protection District
351 Benchmark Road
Post Office Box 7980
Avon, CO 81620
Attn: Karl Bauer
E -Mail:
with copy to:
James P. Collins
Collins, Cockrel & Cole
390 Union Boulevard, Suite 400
Denver, CO 80228 -1556
E -Mail: jcollins(2cccfirm.com
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WGIRiiISIN
Town of Avon
One Lake Street
Post Office Box 975
Avon, CO 81620
Attn: Virginia Egger, Town Manager
E -Mail: veggergavon.org
with copy to:
Eric J. Heil, Avon Town Attorney
One Lake Street
Post Office Box 975
Avon, CO 81620
E -Mail: eric&heillaw.com
[EXECUTION PAGE FOLLOWS]
ERFPD -Avon IGA for Joint Public Safety Building
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EXECUTED as of the date first written above.
TOWN OF AVON, COLORADO
B : ATTEST:
biz 4AL-Ie--- lqo
Jen j2Fancher, Mayor Debbie Hoppe: ToivdCIerk
APPROVED AS TO FORM:
Eric J. H sq., Avon Town Attorney
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EXECUTED as of the date first written above.
EAGLE RIVER FIR] EA PROTECTION DISTRICT
BY: ATTEST:
Jennifer ennifer Cartmell Ilays, Chairperson Clark Shivley, Secretary
APPROVED AS TO FORM:
James P. Collins, Esq.
EXHIBIT A: DESIGN & CONSTRUCTION MANAGER PROCESS
WG: Working Group [Two elected members from the ATC & ERFPD,
Appointed staff, FD Rep, legal counsel as requested.]
BOD: Board of Directors of the Eagle River Fire Protection District
ERFPD: Eagle River Fire Protection District
ATC: Avon Town Council
Avon: Town of Avon
FD Rep: Fire District Owner's Rep
TASK
DATE
RESPONSIBLE PARTY
2015
Draft Architectural Services RFP
3/31
Avon
Comments on Architectural Services RFP Due
4/2
WG
Advertise and Distribute Architectural Services RFP
4/3
Avon
Pre-Proposal Meeting and Site Tour
4/17 (9:00 a.m. )
Avon & ERFPD
Architectural Services Proposals Due
4/24 5:00 .m.
Avon
Distribute copies of Architectural Services Proposals
4/25 9:00 a.m.
Avon
Select Architectural firms to interview and
determine interview process and questions
4/28 (9:00 a.m.)
WG
Interview Architectural firm
511 8:00 a.m.
WG
Finalize Selection Recommendation for
Architectural Firm & Negotiate Professional
Services Agreement
5/12
WG
Professional Service Agreement Architectural
Services Approval
5/21
5/26
BOD
ATC
Closing on Lot 1B, Buck Creek PUD
6/8
ERFPD
Draft Construction Manager at Risk RFP
6/8
Avon/FD Re
Comments on Construction Manager RFP
6/17
WG
Advertise and Distribute Construction Manager RFP
6/22
Avon/FD Re
Pre-Proposal Meeting and Site Tour
7/7
Avon & ERFPD
Construction Manager Proposals Due
7/15
Avon/FD Re
Distribute copies of Construction Manager Proposals
7/16
Avon/FD Re
Select Construction Managers to interview and
determine interview process and questions
8/13
WG
Interview Construction Managers
8/27
WG
Finalize Selection Recommendation for
Construction Manager & Contract
9/7
WG
Construction Manager Contract Approval
9/16
9/15
BOD
ATC
Architect to Provide 50% Preliminary Design
10 /1
WG
Construction Manager Begins
10 /1
Architect to Provide 90% Design Documents
2/1/2016
WG
TENTATIVE — BOND ELECTION
5/5/2016