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07-21-2016 IGAConcerning the Ownership, Construction, Operation and Maintenance of the Joint Fire-Police Station FacilityINTERGOVERNMENTAL AGREEMENT CONCERNING THE OWNERSHIP, CONSTRUCTION, OPERATION AND MAINTENANCE OF THE 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 July 21, 2016, ( "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 has acquired 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 with the intent to design, finance and construct a joint regional fire station and Town of Avon police station on the Property ( "Joint Public Safety Facility "); and, WHEREAS, the Parties entered into an INTERGOVERNMENTAL AGREEMENT FOR A JOINT FIRE - POLICE STATION FACILITY BETWEEN THE TOWN OF AVON AND THE EAGLE RIVER FIRE PROTECTION DISTRICT, dated April 28, 2015; which was amended by the MEMORANDUM OF AGREEMENT REGARDING COST SHARING FOR PROGRAMMING, DESIGN AND PRE- CONSTRUCTION MANAGEMENT OF A JOINT FIRE- POLICE STATION FACILITY BETWEEN THE TOWN OF AVON AND THE EAGLE RIVER FIRE PROTECTION DISTRICT, dated June 9, 2015; and amended by SECOND AMENDMENT TO INTERGOVERNMENTAL AGREEMENT FOR A JOINT FIRE- POLICE STATION FACILITY BETWEEN THE TOWN OF AVON AND THE EAGLE RIVER FIRE PROTECTION DISTRICT, dated January 11, 2016; and amended by the THIRD AMENDMENT TO INTERGOVERNMENTAL AGREEMENT FOR A JOINT FIRE- POLICE STATION FACILITY BETWEEN THE TOWN OF AVON AND EAGLE RIVER FIRE PROTECTION DISTICT, dated January 26, 2016; and amended by the FOURTH AMENDMENT TO INTERGOVERNMENTAL AGREEMENT FOR A JOINT FIRE- POLICE STATION FACILITY BETWEEN THE TOWN OF AVON AND EAGLE RIVER FIRE PROTECTION DISTRICT, dated February 2, 2016 (collectively referred to as the "2015 IGA "); and, WHEREAS, in accordance with the terms of the 2015 IGA, the Parties each referred a ballot measure concerning construction financing to their respective electorates for consideration on May 3, 2016 and the respective voters for each Party approved the referred ballot measures; and, WHEREAS, the Parties desire to proceed with constriction of a Joint Public Safety Facility and thereby desire to replace and supersede the 2015 IGA with this new Agreement to address various matters, including but not limited to conveyance of an undivided interest in the Property to the Town of Avon, closing on construction financing, orderly and efficient cooperation of a Construction Manager contract and Architectural Services contract, use and occupancy, ERFPD -Avon IGA Ownership & Operation FINAL July 21, 2016 Page 1 of 16 operation and maintenance, and such other matters concerning each Party's rights and obligations in the Joint Public Safety Facility; and, WHEREAS, the Parties acknowledge that each Party must close on its respective bond financing as a condition of proceeding with construction of the Joint Public Safety Facility and that the closing of each Party's bond financing will necessarily require satisfaction of many pre- requisites, which the Parties desire to identify in this Agreement in order to promote the timely and orderly coordination of each Party's efforts to facilitate closing of the bond financing and commencement of construction; 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: Part 1— Construction of Joint Public Safety Facility 1. Recitals Incorporated. The Parties agree that the recitals stated above are hereby incorporated into the terms of this Agreement. 2. Definitions. a. Architect shall mean Davis Partnership Architects, P.C. b. Change Order shall mean "Change Order" as defined in the Construction Contracts. c. Common Elements shall mean any property which is part of the Property and not included in Unit A or Unit B. Avon and Fire District shall each have non - exclusive access and right to use and enjoy the Common Elements as defined in this Agreement. d. Construction Contracts means all contracts entered into by Avon and the Fire District related to the design and construction of the Joint Public Safety Facility, including but not limited to, the agreement for architectural services with Davis Partnership Architects, P.C. (AIA Document 13101-2007, dated May 18, 2015) and the agreement for construction manager services (AIA Document A133 -2009, dated July 15, 2016). e. Construction Manager shall mean Evans Chaffee Construction Group. f. Construction Manager Contract shall mean the AIA Document A133 -2009, AIA Document A201 -2007, including any documents referenced therein, and any addendum, Change Orders or amendments to such documents. g. Coordinated Unit Maintenance shall mean those elements of the individual Units which should be repaired simultaneously, including but not limited to the exterior walls of the Facility Structure. h. Effective Date shall mean the date stated in the first paragraph of this Agreement. ERFPD -Avon IGA Ownership & Operation FINAL July 21, 20t6 Page 2 of 16 i. Facility Structure shall mean the Joint Public Safety Facility building occupying the Property, but not including driveways, drive aprons, parking areas, retaining walls, landscape and other portions of the Property outside of the footprint of the building as construction, as is specifically described in Exhibit C: Joint Public Safety Facility Plat attached to and made a part of this Agreement. j. Propertp Closing shall mean the date that the Fire District conveys an undivided interest in the Property to the Town of Avon. k. Propet& Proper shall mean Lot 1B, Buck Creek Subdivision, Filing No. 2, Avon, Colorado, dated July 15, 2016, and recorded on July 15, 2016 in the Eagle County Clerk and Recorder's Office, Reception No. 201610880, with a physical address of 60 Buck Creek Road, Avon, CO 81620. 1. Reconveyance Parcel shall mean the portion of Lot 1A, Buck Creek Subdivision, Filing No. 1, Avon, Colorado, in the amount of 4,479.00 square feet, more or less, as described in the Memorandum of Agreement, Lot IA, Buck Creek Subdivision, Filing No. 1, dated June 8, 2015, and recorded in the Eagle County Clerk and Recorder's Office, Reception No. 201510241 ( "June 8, 2015 MOA "). m. Unit shall mean the physical portion or individual air space of the Facility Structure and Property designated for separate and exclusive use by a Party, the boundaries of which are defined in Exhibit C: Joint Public Safety Facility Plat. n. Work shall mean "Work" as defined in the Construction Contracts, as may be amended from time to time. 3. Amendment and Replacement of Prior IGAs. The 2015 IGA, as defined in the Recitals, is hereby amended and replaced in its entirety by this Agreement. 4. Conveyance of Real Property Interest. a. Terms and Pre - Conditions. Fire District and Avon acknowledge that an undivided in interest in the Property must be conveyed to Avon as a pre- requisite to Avon closing on its Certificate of Participation financing. b. Inclusion of Reconveyance Parcel. The Property shall include the Reconveyance Parcel. Fire District agrees to diligently pursue conveyance of the Reconveyance Parcel prior to the Property Closing in accordance with the terms of the June 8, 2015 MOA. c. Subdivision Replat. The Parties acknowledge that a subdivision replat shall be required to reflect the conveyance of the Reconveyance Parcel from Lot IA, Buck Creek Subdivision, Filing No. 1, to Lot 1B. Fire District agrees to commission Gore Range Surveying LLC, or other surveyor, to prepare a replat of Lots IA and 1B to reflect the conveyance of the Reconveyance Parcel to Lot 1B and agrees to provide an updated title insurance commitment. The Town agrees to prepare other subdivision application information and promptly review the subdivision application. Town agrees that it will not charge the Fire District or Avon MOB LLC (the owner of Lot IA, Buck Creek ERFPD -Avon IGA Ownership & Operation FINAL July 21, 2016 Page 3 of 16 Subdivision, Filing No. 1) application fees or costs for the subdivision replat application. Town anticipates that the subdivision application will be subject to administrative review and approval. d. Special Warranty Deed. The Fire District agrees to convey an undivided interest in the Property to the Town of Avon in materially the same form as the special warranty attached hereto as Exhibit A: Form of Special Warranty Deed, such that the Eagle River Fire Protection District and the Town of Avon shall own the Property as a Tenancy in Common with the Eagle River Fire Protection District owning a 55% undivided interest and the Town of Avon owning a 45% undivided interest in the Property, subject to the rights, obligations and terms of this Agreement, for such consideration and with such credits as is defined in the 2015 IGA. e. Extinguishment of Promissory Note. Simultaneously with the conveyance of the undivided interest in the Property to the Town of Avon, Avon agrees that the Annual Appropriation Note, dated June 8, 2015, shall be satisfied in full and shall be released and terminated by Avon and the original of such Annual Appropriation Note shall be returned to the Fire District. Avon agrees to pay the balance of the amount payable to the Fire District for Avon's share of the costs of the Property which is now fixed at Eight Hundred Fifty Two Thousand Forty Two and 23/100 Dollars ($852,042.33) after application of the remaining balance of the Annual Appropriate Note to such fixed amount. 5. Construction Financing. Avon and Fire District each represent to the other that each Party is using best efforts to proceed to closing on each Party's respective financings on or about July 28, 2016, in order to enable construction to commence on August 10, 2016, or as soon thereafter as practicable. In the event financing for a party is not available by August 10, 2016, such party shall notify the other party and such party may make arrangements for payments to avoid or reduce delay in the commencement of the construction. 6. Waiver of Building Permit Fees. As summarized in Exhibit B, Avon agrees to waive building permit planning review fees and the Fire District agrees to waive fire sprinkler fees, fire alarm fees and Ere impact fees related to the construction of the Facility Structure and Common Elements on the Property. 7. Construction. a. Cooperation. Each Party agrees to cooperate in good faith and coordinate with the other Party to perform in a timely manner as the Owner in the Construction Contracts, and further agrees to promptly notify the other Party of any circumstance or situation which may delay or affect the ability of such Party to perform in a timely manner as the Owner. b. Apportionment of Costs. The apportionment of costs for construction of the Joint Public Safety Facility, including but not limited to architectural services, pre - construction management services, and the Construction Manager Contract and other related services which arise from contracts entered into by both Avon and the Fire District, and the apportionment of construction costs, including but not limited to the agreement for architectural services which are based on Exhibit B: Apportioned Cost ( "Apportioned ERFPD -Avon IGA Ownership & Operation FINAL July 21, 2016 Page 4 of 16 Cost ") with respect to various identified portions of the project until adjusted pursuant to the terms of this Agreement, as may be amended from time to time. c. Payment Responsibility. All Contracts to which this Agreement is applicable shall. state that Avon and the Fire District are each responsible and liable for payment and costs under such Construction Contracts only to the extent of each Party's respective Apportioned Cost, or other apportionment as may be mutually agreed, and that the Parties are not jointly and severally liable for the entire cost of Construction Contracts. d. Guaranteed Maximum Price. The Parties agree to review a Guaranteed Maximum Price proposal from the Construction Manager in accordance with §2.2 of A133 Agreement with the Construction Manager. Provided that the Apportioned Cost of the Guaranteed Maximum Price does not exceed the amount of funds each Party has appropriated, each Party agrees that acceptance of the Guaranteed Maximum Price proposal shall not be unreasonably withheld. The Parties may also agree to a Lump Sum Contract with the Construction Manager. e. Payments. The Parties each agree to receive, process and make payment in accordance with the terms of the Construction Contracts, provided that each Party's payment shall be in the amount of the Apportioned Cost. The Parties agree that the Construction Manager Contract shall require the Construction Manager's pay applications to include a cover sheet with a cost allocation of the portion of Work completed for each Party's portion of the Joint Public Safety Facility. In the event either Party disputes a pay application or requests additional information or testing, such Party shall promptly notify the other Party. f. Change Orders. The Parties agree that the Construction Manager Contract shall require the Construction Manager to provide a cost allocation to each Party for every Change Order and that every Change Order will require the signature of the Construction Manager, the Architect, Town of Avon and Eagle River Fire Protection District. The Party not requesting a Change Order may object to a Change Order requested by the other Party if (1) such Change Order increases cost of construction or projected operation and maintenance costs for the non - requesting Party, (2) the Change Order would result in delay of the completion of construction, or (3) the Changer Order would adversely affect the programming for the non - requesting Party; otherwise, each Party's approval and signature of Changes Orders shall not be unreasonably withheld or delayed. g. Adjustment to Apportionment of Costs. The Parties agree that the Apportioned Cost shall be adjusted when the actual designs for the Joint Public Safety Facility indicate a different square footage and different ratio of shared space, police department and fire department space. Such adjustment shall be applied to work performed from the date of adoption of a replacement Exhibit B -(x): Apportioned Cost, unless another method of allocation is mutually determined appropriate. The updated replacement Exhibit B -(x): Apportioned Cost shall automatically replace and supersede any previously adopted Exhibit B -(x): Apportioned Cost and shall automatically become a part of this Agreement. Any updated replacement Exhibit B -(x): Apportioned Cost shall be numbered sequentially to denote the most updated version (e.g. B -1, B -2). The Parties agree to work cooperatively in good faith to consider the equitable allocation of cost to ERFPD -Avon 1CA Ownership & Operation FINAL July 21, 2016 Page 5 of 16 each Party for any change in the design, which may be based on square footage as depicted in Exhibit B -1: Apportioned Cost or may be based on another method or formula as mutually determined appropriate to achieve the purpose of this Agreement. The Parties agree that any additional cost resulting from a Change Order or amendment to any Construction Contracts which is requested by, and which primarily concerns, one Party shall be paid for by such Party and shall not change or affect the Apportioned Cost for the remainder of the Construction Contracts unless the Parties mutually agree that another method or formula is appropriate. h. Utilities. In the event that any utilities must be ordered or installed prior to the preparation of a Facility Management Plan, the Parties agree to meet and determine in writing the cost allocation, account holder, and other matters related to such utility which shall then become incorporated into the Facility Management Plan. i. Final Payment. Each Party shall follow and complete all applicable requirements, including publication of Notice of Final Payment, before making final payment to the Construction Manager for its portion of the cost of the Joint Public Safety Facility. 8. Warranties. The Parties agree to share information, promptly review and coordinate a demand to correct any Work pursuant to warranty provisions in the Construction Contracts. 9. Termination of Tenancy and Vacation of the Wildridge Station. Avon may terminate the District's tenancy of the Wildridge Fire Station 90 days after the earlier to occur of Avon issuing a Temporary Certificate of Occupancy or issuing a Final Certificate of Occupancy to the District for the Regional Avon Fire Station. The Parties agree that this Agreement and the issuance of Temporary Certificate of Occupancy or Final Certificate shall serve as all required legal notice. The District agrees to remove all personal property from the premises not owned by the Avon and to clean the premises to commercial reasonable standards prior to vacating the premises. 10. Termination of Lease and Vacation of the Avon Fire Station. Avon may terminate its existing lease with the District for the Avon Fire Station District 90 days after the earlier to occur of Avon issuing a Temporary Certificate of Occupancy or issuing a Final Certificate of Occupancy to the District for the Regional Avon Fire Station. The Parties agree that this Agreement and the issuance of Temporary Certificate of Occupancy or Final Certificate shall serve as all required notice under the applicable lease. The District agrees to remove all personal property from the premises not owned by the Avon and to clean the premises to commercial reasonable standards prior to vacating the premises. Part 2 — Use and Occupancy of Joint Public Safety Facility 11. Use and Occupancy of Units. a. Unit Description. The Facility Structure is divided in to Unit A, Unit B, and Common Elements, as described in Exhibit C: Joint Public Safety Facility Plat. The Parties agree that upon completion of construction a revised Joint Public Safety Facility Plat shall be prepared, executed and recorded in the Eagle County Clerk and Recorder's Office. ERFPD -Avon IGA Ownership & Operation FINAL July 21, 2016 Page 6 of 16 b. Use and Occupancy of Units. The Fire District (including its lessees, assigns and tenants) shall have the exclusive use and enjoyment of Unit A and Avon (including its lessees, assigns and tenants) shall have the exclusive use and enjoyment of Unit B, subject to the terms of the Agreement. Each Party's rights include the right to access the Unit, the right to use, access and enjoy the Common Elements, subject to the terms of this Agreement. The use of each Unit shall be incompliance with the Public Facility zone -district regulations of the Town of Avon and other applicable local, state and federal regulations. c. Partition of Units. No Party may partition, subdivide or in any manner divide a Unit into two or more units without the approval of the other Party, which may be granted or withheld in such Party's sole discretion, and which shall be subject to approval by the Town of Avon in accordance with the Town's development, land use, building and other applicable regulations. d. Lease or Sublet. Each Party shall have the right to lease or sublet all or any portion of the Party's assigned Unit provided that the use of such Unit is (1) in compliance with the terms of this Agreement, (2) in compliance with applicable local, state and federal regulations, and (3) is incompliance with the terms of any financing that creates an encumbrance on the Unit. Each Party shall remain responsible for any loss, damage or destruction which occurs during any such lease or sublet period as if such Party were occupying the assigned Unit. Nothing herein shall limit the ability of such Party from asserting claims against such tenants or other third parties who may be responsible to the Party leasing or subletting an assigned Unit. Notwithstanding the foregoing, no Party may lease or sublet any portion of its assigned Unit to an entity that is not a local government without receiving an opinion of bond or special counsel to the effect that such lease or sublease will not affect the tax - exempt status of any financing currently outstanding relating to the Joint Public Safety Facility. 12. Operation and Maintenance. a. No Impairment of Structural Soundness. Neither Party shall perform or permit any act or work that would impair the structural soundness or integrity of the Facility Structure or impair an easement, utility or Common Element. b. Facility Management Plan. The Parties agree to prepare a Facility Management Plan on or before July 1, 2017, which Facility Management Plan will address the operation, maintenance, repair and replacement of the Common Elements and Coordinated Unit Maintenance. The Parties agree to meet on an annual basis to review and update the Facility Management Plan. The Facility Management Plan may address any aspect of the operation, maintenance, repair and replacement of the Common Elements and Coordinated Unit Maintenance and may include agreements to establish funds for operation and maintenance and capital reserve funds for replacement, and the payment of invoices based on the Apportioned Costs. The Facility Management Plan shall include the following elements: i. Maintenance and Repair of Unit. Each Party agrees to maintain and repair its Unit as may be reasonably necessary to prevent damage to the other Unit. ERFPD -Avon IGA Ownership & Operation FINAL July 21, 2016 Page 7 of 16 H. Payment. Each Party shall agree to make payment within thirty (30) days of receipt of an invoice for an operation, maintenance, repair or replacement expense that is divided between the Parties per the Apportioned Cost, unless the Parties mutually agree to a different timeframe in the Facilities Management Plan. iii. General Maintenance, Repair and Replacement. For any Common Elements the Parties agree that all improvements shall be maintained, promptly repaired, and replaced when deteriorated beyond repair. The Parties shall consult and mutually agree on the timing, scope and budgeting of maintenance, repairs and replacement. The Parties agree to coordinate contracts for services as may be efficient and cost effective, including but not limited to: janitorial services, trash/recycling, and elevator maintenance and inspections. The Parties agree that damage or breakage which negatively impacts the use of a Unit or has the potential to result in additional damage to a Unit if not corrected shall be repaired or addressed as soon as practical. iv. Utilities. The Facilities Management Plan shall address all utility services for the Property, including defining portions of service lines which may be Common Elements, the use of metered service, the Party or Parties that may hold the utility service in its name, the methodology for apportioning utility charges, fees and costs, and such other matters that are appropriate. Utilities shall include, but not be limited to: water, sewer, natural gas, electric, electric, telephone, and internet. c. Insurance. The Parties agree to carry building insurance coverage for the Joint Public Safety Facility through either CIRSA or VFIS or other District insurer, whichever coverage is most comprehensive and reasonable in cost, in an amount that is not less than the full insurable replacement cost of the insured property less applicable deductibles at the time the insurance is purchased and at each renewal. Such coverage shall include property insurance on the Common Elements in an amount that is not less than the full insurable replacement cost of the Common Elements less applicable deductibles at the time the insurance is purchased and at each renewal, including general liability insurance on the Common Elements in the amount of at least $1,000,000 per occurrence and $1,000,000 aggregate. If this coverage is provided through CIRSA, the Fire District shall be named as an Additional Insured; if the coverage is provided through VFIS or other District insurer, Avon shall be named as an Additional Insured. The cost of all of the aforementioned insurance coverage shall be divided between the Parties based upon the Apportioned Cost. Additionally, if any portion of the property is encumbered by a lease purchase financing, any insurance with respect to property encumbered by such lease purchase financing shall name the trustee or similar party as an Additional Insured if so required by the lease purchase financing. 13. Additions, Expansions and Remodels. a. Additions and Expansions. Any proposed addition or expansion by a Party shall be subject to review and approval of the other Party within thirty (30) days of receipt of a complete set of plans unless the reviewing Party requests a reasonable amount of additional time for review, which approval shall not be unreasonably withheld. ERFPD -Avon IGA Ownership & Operation FINAL July 21, 2016 Page 8 of 16 b. Remodels. Each Party shall have the right to redecorate, remodel or reconstruct the interior of such Party's assigned Unit, provided that no reconstruction, redecoration or remodeling shall be made without prior written consent of the other Party if it would affect structural members, Common Elements, or the exterior appearance of the Facility Structure. Each Party is responsible for securing all required governmental plan and permit approvals. c. Lease Financings. Any additions, expansions or remodels to any portion of the property which is encumbered by a lease purchase financing shall become part of the leased property as such term is defined in any lease documents if so provided in the lease documents. 14. Mechanics Liens. Subsequent to completion of the Facility Structure, no labor performed or materials furnished and incorporated into a Unit with the consent or request of the Unit owner shall be the basis for filing of a lien against the other Unit or the Common Elements, except as to the undivided interest of the Unit for which such labor or materials shall have been furnished. 15. Encumbrances. Each Party shall have the right to subject the respective Party's Unit interest to encumbrances as may be reasonably required to use such Unit as a security interest for lease purchase financing, including but not limited to certificate of participation financing, subject to the following limitation and terms: a. The Party seeking to subject its Unit to an encumbrance for financing purposes shall provide written notice to the other Party at least forty-five (45) days in advance of the closing on the financing. b. The Party seeking financing shall provide copies of all financing documents to the other Party upon receipt of written request. Such copies shall be provided with a reasonable time for review, which shall not be less than five (5) business days. c. The terms of financing shall incorporate and be subject to the Right of First Refusal set forth in Section 16 below. d. Sections (a) and (b) above shall not apply to the lease purchase financing entered into by Avon in order to provide funds to finance the initial acquisition and construction of the Joint Public Safety Facility. 16. Sale or Disposition — Right of First Refusal. Each Party shall have a Right of First Refusal ( "ROFR ") on the sale or disposition of the other Party's undivided property interest. The transferring Party ( "Transferring Party ") shall not transfer, assign, gift, sell, encumber or otherwise dispose (collectively "Transfer ") its undivided interest in the Property unless the Transferring Party complies in all respects with the provisions of this Section 16 and its sub- sections. a. Notice of a Bona Fide Offer. In the event that the Transferring Party desires to Transfer its undivided interest, or any portion thereof, in the Property to any third party ( "Intended Transferee "), then the Transferring Party shall give to the other Party (" ERFPD -Avon IGA Ownership & Operation FINAL July 21, 2016 Page 9 of 16 Non - Transferring Party ") the first right to acquire such property interest on essentially the same written terms as agreed by such Intended Transferee. The Transferring Party shall first provide a written notice to the Non - Transferring Party of its intent to transfer its undivided interest in the Property, and shall include the written agreement between the Transferring Party and the Intended Transferee that includes all details of the proposed transfer, including description of property to be transferred, amount of consideration and any terms for payment, form of deed, title exceptions, closing date, and any contingencies. b. Acceptance ofROFR. The Non - Transferring Party may elect to exercise the ROFR by tendering written notice on or before the ninetieth (90"') day after the date of receipt of the written notice and a complete written agreement defining terms for the transfer of a property interest. For the purpose of calculating the timeliness of Non - Transferring Party's written notice to elect to exercise the ROFR, if the last day for such notice is on a Saturday, Sunday or legal holiday, then the last day for Non - Transferring Party to provide notice shall be the next business day. c. Transfer Terms. For the purposes of this Section 16, the term "Transfer Terms" shall mean: (i) in the case of sale, the price at which and the terms on which the Transferring Party desires to sell its interest in the Property to the Intended Transferee (provided however, if such terms and conditions include non -price terms not acceptable to the Non - Transferring Party, the Non - Transferring Party may elect to pay cash equivalents in case at the closing); and (ii) in the case of any Transfer other than a sale, a price equal to the fair market value of the interest in the Property, or portion thereof, to be transferred, as determined by a real estate appraiser selected by mutual agreement of the Parties. If the Parties are not able to mutually select an appraiser, then the Parties shall each select one appraiser and the selected appraisers shall select a third appraiser who shall determine the fair market value of the interest in the Property, or portion thereof, to be transferred. d. Property Closing. Notwithstanding the schedule stated in any written agreement executed by the Transferring Party to transfer such Party's interest, or any portion thereof, in the Property to an Intended Transferee, the Non - Transferring Party shall have the right to close on the transfer of the Property, or portion thereof, on a date not sooner than one hundred and eighty (180) days after the date of providing written notice of election to exercise the ROFR. For the purpose of calculating the last date for closing hereunder, if the 180'h day is on a Saturday, Sunday or legal holiday, then the last day for the Non - Transferring Party to close shall be the next business day. e. Disclosure of ROFR. Each Party agrees to disclose this ROFR and reference this Agreement and specifically the ROFR set forth in this Section 16 in any agreement to transfer its undivided interest in the Property, or any portion thereof. L Lease Purchase or Certificate of Participation Financings. In the event that any portion of the Joint Public Safety Facility is encumbered by a lease purchase financing or certificate of participation financing, the lease or financing documents shall provide that the Non - Transferring Party is entitled to the ROFR. This section shall apply only in the event that no event of default or event of non - appropriation (as such terms may be defined in a lease purchase financing or certificate of participation financing) shall have ERFPD -Avon 1GA Ownership & Operation FINAL July 21, 2016 Page 10 of 16 occurred or be continuing. If such event of non- appropriation or event of default has occurred, Section 17 below shall apply. g. Tax Exempt Status of Financings. Notwithstanding the above, no sale or disposition of either Party's interest in the Joint Public Safety Facility shall occur if such transfer would, in the opinion of bond or special counsel, affect the tax- exempt status of any financing currently outstanding relating to the Joint Public Safety Facility. 17. Default, Right to Cure. In the event either Party should default by failing to budget and appropriate the funds necessary to make all payments due under any form of certificates of participation or lease purchase financing, the non - defaulting Party is hereby granted the right to cure any such default by payment or payments to the Lessee or the Trustee during the remaining term of the certificates of participation. In the event the non - defaulting Party pays the remaining obligation in full, the non - defaulting Party shall receive the property interest used for security which may be fee title or the remaining term of lease hold interest in the Joint Public Safety Facility under the terms of the certificates of participation or lease purchase financing from the record owner of such interest, either Avon, the Fire District or a Trustee for any certificates of participation or lease purchase financing. The property interest received by the non - defaulting Party or any successor, assignee or lessee of the non - defaulting Party shall be subject to the terms and provisions of this Agreement and any amendments thereto approved by the Parties, as well as the terms and provisions of any Facilities Management Plan then in effect. This Right to Cure shall be separate and distinct from any ROFR set forth in Section 16. 18. Default, Remedies. a. De ault. A "breach" or "default" shall be defined as a failure to timely fulfill or perform a material obligation of this Agreement. . b. Notice of Default. In the event of a default by a Party, the non - defaulting Party shall deliver written notice to the defaulting Party of such default, at the address specified for notices, and the defaulting Party shall have thirty (30) days from and after receipt of such notice to cure such default. If such default is not of a type which can be cured within such 30 -day period and the defaulting Party gives written notice to the non - defaulting Party within such 30 -day period that it is actively and diligently pursuing such cure, the defaulting Party shall have a reasonable period of time (not to exceed an additional one hundred fifty (150) additional days) given the nature of the default following the end of such 30 -day period to cure such default, provided that such defaulting Party is at all times within such additional time period actively and diligently pursuing such cure. c. Remedies. In the event the default is not cured, the non - defaulting Party shall have the right to enforce the defaulting Party's obligations by an action for any equitable remedy and/or action to recover damages. Each remedy is cumulative and in addition to every other remedy provided for in this Agreement, or otherwise existing in law, inequity or by statute. Any remedy available under this Agreement shall be subject to the provisions of any lease purchase financing agreements or certificate of participation agreements which may be outstanding related to the Joint Public Safety Facility. Part 3 — General Terms ERFPD -Avon IGA Ownership & Operation FINAL July 21, 2016 Page I l of 16 19. Miscellaneous. a. Term. This Agreement shall continue in perpetuity until amended or terminated by mutual written agreement of the Parties. b. Tax Exempt Status of Financings: The Parties agree that neither Party shall take any action, or omit to take any action, that would affect the tax status of its respective financings which were utilized to finance the Joint Public Safety Facility project. e. Nonappropriation of any Lease. Nothing herein shall create any obligation of either Party to renew any lease beyond its then current fiscal year as provide in any financing documents relating to such lease financing. d. Runs with the Land. This Agreement shall be recorded in the Clerk and Recorder's Office for Eagle County, Colorado. The provisions of this Agreement shall constitute covenants and servitudes that touch, attach to and run with the land comprising the Property and, the burdens and benefits of this Agreement shall bind and inure to the benefit of all estates and interest in the Property and all successors in interest to the Parties. e. 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 party hereto. f. 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. g. Amendments. This Agreement may be amended from time to time by a written agreement duly authorized and executed by both Parties to this Agreement; provided, however, that any amendment hereto shall not, in the opinion of bond or special counsel, affect the tax - exempt status of any obligation utilized by either Party to finance or re- finance the Joint Public Safety Facility. h. Survival of Terms. The Parties understand and agree that all terms and conditions of the Agreement that require continued performance, compliance, or affect 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. i. 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, with the ERFPD -Avon IGA Ownership & Operation FINAL July 21, 2016 Page 12 or 16 exception that this sub - section shall not restrict a Party's ability to encumber that Party's Unit and pledge the Unit for security in accordance with Section 1.5. Encumbrances. j. 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. k. 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. 1. Indemnification. Avon, its officers and employees, shall not be deemed to assume any liability for intentional or negligent acts, errors, or omissions of the Fire District or of any officer or employee thereof. Likewise, the Fire District, its officers and employees, shall not be deemed to assume any liability for intentional or negligent acts, errors or omissions of Avon or by any officer or employee thereof. Avon agrees to indemnify, defend and hold harmless to the extent allowed by law, the Fire District, its respective agents, officers, servants and employees of and from any and all loss, costs, damage, injury, liability, claims, liens, demands, action and causes of action whatsoever, arising out of or related to the Avon's intentional or negligent acts, errors or omissions or that of its• agents, officers, servants, and employees, whether contractual or otherwise. Likewise, the Fire District agrees to indemnify, defend and hold harmless to the extent allowed by law, Avon, its respective agents, officers, servants and employees of and from any and all loss, costs, damage, injury, liability, claims, liens, demands, action and causes of action whatsoever arising out of or related to the Fire District's intentional or negligent acts, errors or omissions or that of its agents, officers, servants and employees, whether contractual or otherwise. m. No Waiver of Governmental Immunity. Nothing in this Agreement shall be construed to waive, limit, or otherwise modify any governmental immunity that may be available by law to either Party, its officials, employees, contractors, or agents, or any other person acting on behalf of a Party and, in particular, governmental immunity afforded or available pursuant to the Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes. n. 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 Ei2FPD -Avon IGA Ownership & Operation FINAL July 21, 2016 Page 13 of 16 Post Office Box 7980 Avon, CO 81620 Attn: Fire District Chief E -Mail: kbauer @eagleriverfire.org with copy to: James P. Collins Collins, Cockrel & Cole 390 Union Boulevard, Suite 400 Denver, CO 80228 -1556 E -Mail: jcollins @cccfirm.com TO AVON: Town of Avon One Lake Street Post Office Box 975 Avon, CO 81620 Attn: Town Manager E -Mail: vegger @avon.org with copy to: Avon Town Attorney One Lake Street Post Office Box 975 Avon, CO 81620 E -Mail: eric @heillaw.com [EXECUTIONPAGE FOLLOWS] ERFPD -Avon IGA Ownership & Operation FINAL July 21, 2016 Page 14 of 16 EXECUTED as of the date first written above. TOWN OF AVON, COLORADO BY: "- O&Qotu Je nie Fancher, Mayor APPROVED AS TO FORM: O Eric J. He' q., Avon Town Attorney ERFPD -Avon IGA Ownership & Operation FINAL July 21, 2016 Page 15 of 16 ATTEST: a myo., �nnaq'- Debbie Hoppe: To4vnFClerk EXECUTED as of the date first written above. EAGLE RIVER FIRE PROTECTION DISTRIC BY: Clint Jaiiss , Chairperson APPROV,D AS TO F �. P. Collins; Esq. ERFPD-Avon IGA Ownership & Operation FINAL July 21, 2016 Page 16 of 16