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HomeMy WebLinkAbout495962 NORTHERN COLORADO ENERGY STAR HOMES INC - CONTRACT - PURCHASE ORDER - 9117318MEMBER SPONSOR FUNDING AGREEMENT FOR Northern Colorado ENERGY STAR®Homes Program Between Northern Colorado Energy Star Homes, Inc and THE CITY OF FORT COLLINS This Member Sponsor funding Agreement for Northern Colorado ENERGY STAR Homes Program (the Member Funding Agreement) is entered into the 1 %"b S n, �—fir, 2011 by and between Northern Colorado Energy Star Homes, Inc and the CITY OF FORT COLLINS, COLORADO, a Colorado municipal corporation ("Fort Collins" or "Contributing Member Sponsor'J. WHEREAS, Fort Collins Utilities, Longmont Power & Communications, Platte River Power Authority, Poudre Valley Rural Electric Association, Inc., Loveland Water & Power and the Town of Windsor (collectively referred to as the "Contributing Member Sponsors") as defined in the By-laws of Northern Colorado ENERGY STAR HOMES, Inc. have collaborated to plan and provide regional implementation of the Colorado ENERGY STAR Home Program in Northern Colorado; and WHEREAS, the By-laws of Northern Colorado ENERGY STAR HOMES, Inc. are attached hereto and incorporated herein by this reference as Exhibit A; and WHEREAS, Northern Colorado ENERGY STAR Homes was formed to help transform the new home market in Northern Colorado to high performance construction using the Environmental Protection Agency's (EPA) ENERGY STAR Homes program; and WHEREAS, the objectives of Northern Colorado ENERGY STAR Homes is to raise consumer awareness of the ENERGY STAR brand and associated benefits, and to provide training for industry professionals; and WHEREAS, each individual Contributing Member Sponsor is documenting its individual commitments and obligations in connection with the Northern Colorado ENERGY STAR Homes Program, through a Funding Agreement. WITNESSETH: NOW, THEREFORE, for and in consideration of the promises hereinafter contained, the parties agree as follows: ARTICLE 1. Contributing Member Sponsor Funding 1.1 This Funding Agreement will be in effect upon execution by Fort Collins and Northern Colorado ENERGY STAR Homes, Inc and will remain in effect through December 31, 2012. The Agreement can be renewed through supplemental amend -extent agreements approved by both parties. 1.2 Fort Collins shall pay to Northern Colorado ENERGY STAR Homes the following: 1.2.1 Fifteen Thousand dollars ($15,000.00) due upon signing of this agreement; and 1.2.2 Fifteen Thousand dollars ($15,000.00) due January 31, 2012. 13 2012 finding contribution is contingent upon Northern Colorado ENERGY STAR Homes receiving commitments totaling no less than $ 50,000.00, an amount generally representing 75% of the annual budget for 2012. Northern Colorado ENERGY STAR Homes shall provide written confirmation of the 2012 annual budget and related commitments prior to invoicing Fort Collins for its funding contribution. 4 The funds are to be used as approved by the Board and outlined in the budget which may be amended with Board approval. In any event the funding shall be used for the stated objectives of Northern Colorado ENERGY STAR Homes within the service territory of Fort Collins Utilities, other Platte River member cities, Poudre Valley REA or within the jurisdiction of other contributing member sponsors as follows: 1.4.1 Engage builders with ENERGY STAR. 1.4.2 Engage new home sales force with ENERGY STAR homes 1.4.3 Increase consumer awareness of ENERGY STAR homes 1.4.4 Inform builders and trades about the latest version of ENERGY STAR and updates. 1.4.5 Provide training for builders, trade allies and homes sales staff 1.4.6 Continue to collaborate with the EPA, the Governor's Energy Office and other Colorado ENERGY STAR Programs in support of the Northern Colorado ENERGY STAR Homes Program; and 1.4.7 Maintain and update the web site that serves as the information hub for the services to be provided. ARTICLE 2. Appointment of Representative 2.1 As a Contributing Member Sponsor, Fort Collins shall designate a Representative in accordance with the By-laws to serve on the Northern Colorado ENERGY STAR Homes, Inc. Board. Subject to continued status of the organization as a Contributing Member Sponsor, Board members shall serve for two (2) years, with the option to serve an additional two year term. 2.2 If from time to time Fort Collins for any reason needs to change the representative from that organization must provide in writing the change in appointment. It is further understood that the new representative shall completed the balance of the term vacated by 2 the departing representative. 2.3 As a Contributing Member Sponsor, Fort Collins shall provide contact information, along with email address, to which notices will be sent. All formal notices required for Contributing Member Sponsor will be between the Representative identified in statement and Northern Colorado ENERGY STAR Homes, Inc. ARTICLE 3. Financial Obligation 3.1 It is the responsibility of Fort Collins as a Contributing Member Sponsor to provide the agreed upon payment to Northern Colorado ENERGY STAR Homes, Inc. as stated in Article 1. 3.2 The obligations of Fort Collins as a Contributing Member Sponsor and under this agreement are from year to year only and shall not constitute a multi -fiscal year debt or other financial obligation or fiscal obligation of any Idnd payable in any fiscal year beyond the fiscal year for this agreement. 3.3 Obligations of Fort Collins hereunder are contingent upon appropriation of funds sufficient and intended for this purpose by the City Council of the City, in its sole discretion. ARTICLE 4. Assignment 4.1 Neither Northern Colorado ENERGY STAR Homes, Inc nor Fort Collins will assign or delegate this Agreement, or any portion hereof, or any monies due hereunder without the consent of the other party hereto. ARTICLE 5. Amendment 5.1 This Agreement represents the entire agreement between Northern Colorado ENERGY STAR Homes, Inc and Fort Collins and there are no oral or collateral agreements or understanding. Except as otherwise expressly provided herein, this Agreement may be amended only by an instrument in writing, signed by Northern Colorado ENERGY STAR Homes, Inc and Fort Collins. ARTICLE 6. Authority: Liability 6.1 Each of the parties hereto represents that it enters into this Agreement consistent with full and proper authority to do so, and consistent with all applicable laws and regulations of its organization and jurisdiction. Each of the parties hereto agrees to assume responsibility and liability associated with its own acts and the acts of its employees in performance of this Agreement in accordance with Colorado law: specifically as concerns each party that is a local government, or other political subdivision or agency of the State of Colorado, the provisions of the Colorado Governmental Immunity Act, section 24-10-101 et seq., C.R.S. as may be amended Notwithstanding any other provisions of this Agreement to the contrary, no term or condition of the Agreement shall be constructed or interpreted as a waiver, either express or implied, of any immunities, rights, benefits or protection provided to either party under the Colorado Governmental Immunity Act, as amended or as may be amended (including, without limitation, any amendments to such statute, or any other similar statue which is subsequently enacted). The obligations of each party hereunder shall be separate from obligation of the other Contributing Member Sponsor's and not joint and several. The total liability of Fort Collins if any shall be limited to Fort Collins' obligation to provide Funding to Northern Colorado ENERGY STAR Homes, Inc. as set forth herein. The obligation of Northern Colorado ENERGY STAR Homes, Inc. shall be to properly manage and administer the funds provided by Fort Collins as set forth herein. ARTICLE 7. General Provisions 7.1 Governing Law. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Colorado. 7.2 Notices. Any notice, demand, request, consent, approval or communication that any party is required to give shall be in writing and either served personally or sent by first class mail, postage prepaid, or by telefacsimile or email, to the designated representative of the Contributing Member Sponsor at the address designated as set forth above or as subsequently provided in writing. 7.3 Status. The parties acknowledge that as a Contributing Member Sponsor, Fort Collins lacks the power and rights to direct the actions of the other Contributing Member Sponsors. Each Member Sponsor acts in its separate capacity under the By-laws of the Northern Colorado ENERGY STAR Homes, Inc. and not as an officer, employee or agent. Each person executing this Agreement represents that he or she is authorized to do so and bind the party on behalf of which he or she signs to the Contributing Member Sponsor Funding Agreement. It is the parties' intent that in no event shall the term "Contributing Member Sponsor" mean a legal partnership created or implied under the laws of the State of Colorado or otherwise. 7.4 Term. The term of this agreement shall be as set fourth in Article I the said term. The term shall not extend beyond the funding period. Fort Collins will renew its funding commitment on a year to year basis. The balance of funds will carry forward from year to year until such time that The Northern Colorado ENERGY STAR Program is dissolved as set fourth in the By-laws and the balance of funds are returned to the Contributing Member Sponsors proportionally to their respective contributions. 7.5 Fax and Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be original but all of which when taken together shall constitute one Agreement. In addition, the parties agree to recognize signatures to this Agreement transmitted by telefacsimile as if they were original signatures. 7.6 Severability. If any provision of this Agreement is declared void or unenforceable, such provision shall be deemed severed here from, and the balance of this Agreement shall otherwise remain in full force and effect, unless the severance of the void or unenforceable provisions defeats the purpose or general intent of the parties hereto, in which event the Agreement shall terminate. 7.7_ Third Party Beneficiaries. The parties hereby acknowledge and agree that this Agreement is intended to only document the relative rights and obligations between the parties to one another, and that no third party beneficiaries s are intended. 7.8 Enforceability. The parties hereto recognize that there are legal constraints imposed upon them by the constitution, statutes, and rules and regulations of the State of Colorado and of the United States, and imposed upon them by their respective governing statutes, charters, ordinances, rules and regulations, and that subject to such constraints, the parties intend to carry out the terms and conditions of this agreement. Notwithstanding any other provisions of this agreement to the contrary, in no event shall either of the parties be obligated hereunder to exercise any power or take any action that is prohibited by applicable law. Whenever possible, each provision of this Agreement shall be interpreted in such a manner so as to be effective and valid under applicable law. 7.9 Compliance with Laws. All actions taken by The Northern Colorado ENERGY STAR Program in carrying out its responsibilities hereunder shall be carried out in strict compliance with all federal, state, county, and municipal government laws, regulations, and ordinances. 7.10 Nondiscrimination. No person with responsibilities in the provision of services or the operation of any program referred to in this Agreement will unlawfully discriminate with respect to any program participant or any applicant for participation on the basis of race, color, national origin, age, sex, religion, handicap, political affiliation or beliefs. 7.11 Political and Lobbying Activities. No services provided under this Agreement shall involve political activities and no funds made available under this Agreement shall be used for lobbying activities. 7.12 Private Gain. No person with responsibilities in the provision of the services or the operation of any program referred to in this Agreement will use his or her position for his or her own private gain or for the gain of any person with whom (s)he has a relationship by blood or marriage or a close business, political or personal association. IN WITNESS WHEROF, the parties hereto have executed this Agreement on the date(s) set forth below with their respective signatures. NORTHERN COLORADO ENERGY STAR HOMES®, INC. A COLORADO non-profit corporation Wagner,Vicki ov. �.. Date: \1- \%-\\ CITY OF FORT COLLINS By: �-- Darin Atteberry, City Manager Date: ,a - t�) too 15 V /} �► wands Krajicel Ci Cl APPROVED AS TO FORM: Cp[nRc Carrie M. Daggett, Deputy City Attorney