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HomeMy WebLinkAboutC14-004 Cloud City Conservation Center Participation Agreement PARTICIPATION AGREEMENT This Agreement("Agreement") is entered into by and between Eagle County, Colorado, a body corporate and politic, ("County") and the Cloud City Conservation Center("C4"), a Colorado nonprofit corporation hereinafter collectively the "Parties" on the 71' 'day of iliN -411, 2014. RECITALS WHEREAS, Pitkin County, Colorado, Eagle County, Colorado and Gunnison County, Colorado (the"Counties") were awarded a grant from the United States Department of Energy(the "Grant"); WHEREAS, one of the goals of the Grant is to create a program which can be utilized by other jurisdictions and their entities in achieving common energy efficiency goals; WHEREAS, the Department of Energy has authorized the Counties to utilize Grant funds in a revolving loan fund (the "RLF") the purpose of which is to finance energy efficient home improvements for residents of the Counties and other jurisdictions in Colorado; WHEREAS, the Counties are working on the transition of the Energy Smart Program (defined below) and anticipate the creation of a Colorado nonprofit corporation to be called Energy Smart Colorado, Inc. or something similar(such potential future non-profit entity shall be referred to as "ESC"herein); WHEREAS, upon development of a transition plan for the Energy Smart Program which is acceptable to the Counties, the Counties may enter into a contract with ESC to manage, in part, the administration of the Grant funds, specifically including the RLF; WHEREAS, the Counties further anticipate that the transition plan for the Energy Smart Program may include the transfer to ESC certain educational tools and tracking systems; WHEREAS, education, access to financing and financial incentives, and workforce development as the primary program foundations are to be deployed through local one-stop-shop energy resource centers (the "Energy Smart Program"); WHEREAS, as the lead agency under the Grant, Eagle County is entering into this Agreement with C4, but anticipates it may assign all or a portion of its rights and obligations under this Agreement to ESC when ESC is formed or as otherwise agreed among the Counties; WHEREAS, C4, with support from Lake County, Colorado, desires to participate in the Energy Smart Program, as well as the RLF on the terms and conditions set forth in this Agreement. C4's primary goal is to further its energy efficiency programs and to improve the local housing stock through community education, low-cost home energy assessments, access to financing for energy efficiency improvements to homes, access to rebates, and connections to qualified contractors. 1 b4.-°°4 AGREEMENT In consideration of the above and foregoing, the Parties agree to the following: 1. COUNTY COMMITMENTS. County will provide the following to C4: a. With permission of the Counties, access to up to $50,000 of the RLF, limited however by the terms and conditions set forth hereafter. b. Access to the Energy Smart Program website which shall be updated to include C4 information. c. Access to shared Energy Smart Program files in drop box. d. Access to Energy Smart Program Salesforce database, materials and training programs. C4 acknowledges that the County may in the future implement licensing costs or other fees for access to and use of this information. The County may also implement future licensing costs or other fees for access to and use of drop box files, logos and Marks (defined below). In the event such fees and costs are to be implemented, County will provide C4 with reasonable advance notice of the same and C4 shall have thirty(30) days from such notice to determine whether it will pay the fees and costs. In the event C4 determines that it will not pay the fees and costs, then access to and use by C4 of the foregoing database, materials and training programs, drop box files, logos and Marks will be immediately terminated. e. Access and the right to use Energy Smart Program Logo/branding and Marks (hereinafter defined) in accordance with Energy Smart Program standards and guidelines as may be amended from time to time and as set forth herein. 2. ACCESS TO REVOLVING LOAN FUND. C4 agrees and residents of Lake County, Colorado may have access to the RLF as follows: a. The RLF is administered by Energy Smart Partners LLC on behalf of the Counties in accordance with the terms of the Revolving Loan Fund Agreement dated June 11, 2012 (the "Revolving Loan Fund Agreement or the RLF"). b. C4 shall at all times comply with terms of the RLF. c. Residents of Lake County, Colorado shall be allowed to access up to no more than fifty thousand dollars ($50,000) of the RLF for residential energy efficient improvements on the terms and conditions set forth herein and in accordance with the terms of the Revolving Loan Fund Agreement. The fifty thousand dollars ($50,000) is not restricted for use by Lake County residents alone and may be accessed by residents of the Counties or others that may be authorized to participate in the Energy Smart Program in the future. 2 MIL d. There is no guarantee or warranty that all or a portion of the $50,000 will be available for residents of Lake County as the RLF is available on a first come, first served basis. Should sufficient RLF funds not be available to lend pursuant to an approved loan application, C4's (and residents of Lake County) access to the RLF funds shall be denied. e. C4 shall adhere to Energy Smart Program standards and guidelines as may be amended from time to time. f. Any of the Counties through the Revolving Loan Fund Agreement, may with or without cause and for any reason and without penalty, upon thirty(30) days advance written notice to C4 and Energy Smart Partners LLC terminate the right of Lake County residents to access the RLF subject to loans that have been approved and funded prior to the notice of termination. 3. C4 COMMITMENTS. C4 agrees to provide or perform the following: a. Community education and outreach. b. Contractor training, home energy assessments, rebates, and access to financing, in accordance with Energy Smart Program standards and guidelines, which may be amended from time to time. c. C4 shall be solely responsible for all costs and liabilities associated with C4 programs and operations and its implementation of the Energy Smart Program in Lake County, Colorado. C4 shall be solely responsible for funding for its staff salaries, office and other expenses. d. Home energy assessments to residents of Lake County and potentially businesses. e. Act as an ambassador for the Energy Smart Program to the public and other potential Colorado communities in accordance with Energy Smart Program standards and guidelines. f. Use the Energy Smart logo on C4 web-site, and in connection with related events and promotions in accordance with Energy Smart Program standards and guidelines. C4 acknowledges that County has applied for a trademark for the name"Energy Smart Colorado" and to protect its logo(s). It is unclear whether such application will be approved or denied for being too similar to other existing trademarks. C4 Notwithstanding the foregoing, this Agreement is designed to protect the logos and all trademarks, trade names, service marks or designs belonging to County (collectively the"Marks"). The Marks are the sole and exclusive property of County. C4 is hereby granted a limited, non-exclusive, non-transferable, and revocable license to use such Marks. Any failure by C4 to comply with the terms and conditions of this Agreement may result in the immediate revocation of this license, in addition to any other remedies that may be available to County. The Marks may be 3 • • revised or altered only as expressly approved by County(revised or altered marks are included within the scope of Marks). C4 agrees to use any revised or altered Marks as may be directed by County from time to time. In the event County determines, in its sole discretion, that it is necessary to cease use of all or a portion of the Marks, it will provide C4 with notice to cease use of the Marks and C4 shall promptly cease such use and shall remove all Marks from its marketing or website. g. Any approved use of the Marks must be made to a high quality standard, and C4 may not incorporate the Marks into any product or website that violates any applicable local, state, federal law or regulation. Marks may not be used in any manner that, in the sole discretion of County is false or misleading. h. Use of the Marks shall create no rights for C4 in or to the Marks or their use beyond the terms and conditions of this limited and revocable license. C4 hereby assigns all right, title and interest in and to any revised or altered Marks to County. i. Continue to work with Counties' staff as the Energy Smart Program evolves, so that Energy Smart Program standards and guidelines are followed. C4's implementation of the Energy Smart Program in Lake County shall at all times reflect and maintain the quality of the Energy Smart Program. j. C4 shall market the Energy Smart Program in accordance with Energy Smart Program standards and guidelines including, but not limited to: i. Logo/branding and marketing; ii. Shared website and data management; and ii. C4 acknowledges that it will comply with all rules, regulations and laws applicable to advertising the Energy Smart Program and the RLF. C4 shall obtain approval from Energy Smart Partners, LLC of any marketing or materials related to the RLF prior to publishing or distributing the same. k. C4 shall not share, sell, or otherwise provide access to any Energy Smart Program materials, databases, standards, guidelines, data management systems, websites, web applications, logos/branding and Marks or marketing, training programs, operations and finance standards and guidelines, or any other information or materials prepared or developed by Counties with any third party or other communities, contractors, organizations, or entities without prior written consent of County, which County may withhold in its sole discretion. 1. All information received by C4 under this Agreement shall be used solely for the purpose for which granted, and any use for any other purpose shall not be permitted. 4 • • • m. Comply will all applicable federal, state and local rules and regulations and laws applicable to this Agreement. n. C4 shall perform its obligations in a skillful, professional and competent manner and will comply with the highest standards of customer service to the public. 4. Term and Termination. a. This Agreement shall have an initial term of one(1) year and shall expire on December 31, 2014. The term of this Agreement may be extended by the Parties upon their written agreement. b. Participation in the RLF maybe terminated as set forth in paragraph 2f hereof. c. County shall have the right, in the exercise of its sole discretion, to terminate this Agreement and the license to use its Marks hereunder, at any time it deems C4 to be out of compliance with the terms of this Agreement upon ten(10) days written notice and with or without cause and without penalty upon thirty(30) days written notice. d. Upon expiration or earlier termination hereof, C4 shall immediately cease use of all Energy Smart Program materials, databases, standards, guidelines, data management systems or websites, web applications, logos/branding and Marks or marketing, training programs, operations and finance standards and guidelines, or any other information or materials prepared or developed by the Counties. C4 shall promptly return to County all materials and collateral provided by County. 5. Third Party Beneficiaries. Pitkin County and Gunnison County shall be third party beneficiaries under this Agreement. Eagle County shall be a third party beneficiary in the event the Agreement is assigned to ESC. Other than the foregoing entities, this Agreement does not confer upon or grant to any third party any right to claim damages or to bring any suit, action or other proceeding. 6. Governing Law, Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Colorado. Jurisdiction and venue for any suit, right or cause of action arising under, or in connection with this Agreement shall be exclusively in Eagle County, Colorado. 7. Notice: Any notice required under this Agreement shall be given in writing by personal delivery, email or mail which shall be addressed as follows: County: Adam Palmer PO Box 179 Eagle, CO 81631 Adam.palmer @eaglecounty.us 5 • C4: Lynne Westerfield Greene Cloud City Conservation Center 119 W 9th Street, Leadville CO 80461 Notice shall be deemed given upon the date of delivery or three (3) days after the postmarked date of deposit, first class postage prepaid, in the an official depository of the U.S. Postal Service. 8. Indemnification. C4 shall to the fullest extent permitted by law, indemnify and hold harmless County, Energy Smart Partners LLC, Pitkin County, Gunnison County and ESC, if the Agreement is assigned to ESC, their boards, the individual members thereof, their departments, officers, agents, employees, servants and successors ("Indemnifed Parties") from any and all demands, losses, liabilities, claims or judgments, for which the Indemnified Parties may become subject to, insofar as any such demands, losses, liabilities, claims or judgments arise out of this Agreement directly or indirectly, or for any negligent act or omission or willful misconduct caused by C4, its employees, sub-consultants or subcontractors which occurs during its performance or non-performance hereunder. C4 shall reimburse the Indemnified Parties for any and all legal and other expenses including attorney fees and costs incurred by the Indemnified Parties in connection with investigating or defending any such demands, losses, liabilities, claims or judgments. 9. Remedies. County and C4 agree that this Agreement may be enforced for specific performance, injunctive, or other appropriate relief, including damages, as may be available according to the laws and statutes of the State of Colorado. It is specifically understood that by executing this Agreement, C4 commits itself to perform pursuant to the terms contained herein. 10. Assignment. C4 shall not assign any of its rights or duties under this Agreement to a third party without the prior written consent of County which consent may withheld in County's sole discretion. County may assign any of its rights and duties under this Agreement and shall provide written notice to C4 of the same. 11. Modification. Any revision, amendment or modification of this Agreement shall be valid only if in writing and signed by all parties. 12. Insurance. C4 shall maintain workers compensation insurance as required by Colorado law and General Liability insurance with limits of$1,000,000 per occurrence and $1,000,000 in the aggregate. Further, C4 shall maintain personal and advertising injury coverage with limits of $1,000,000 per occurrence and $1,000,000 in the aggregate. C4 shall name County as an additional insured on its General Liability policy. 13. Independent Contractor. The relationship of C4 to County is that of independent contractor. No agent, employee or volunteer of C4 shall be deemed to be an agent, employee or volunteer of County. 6 14. Invalidity. Invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed as if such invalid or unenforceable provision was omitted. 15. Tabor. No compensation or payment is due from County to C4 under this Agreement. Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made to the County nor shall any payment be made to C4 without the written approval in accordance with a budget adopted by the Board of County Commissioners in compliance with the provisions of Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. § 29-1-101 et seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 16. Prohibition on Public Contracts. If C4has any employees or subcontractors, C4 shall comply with C.R.S. § 8-17.5-101, et seq., regarding Illegal Aliens — Public Contracts for Services, and this Contract. By execution of this Contract, C4 certifies that it does not knowingly employ or contract with an illegal alien who will perform under this Contract and that C4 will participate in the E-verify Program or other Department of Labor and Employment program ("Department Program") in order to confirm the eligibility of all employees who are newly hired for employment to perform work under this Contract. (a) C4 shall not: (i) Knowingly employ or contract with an illegal alien to perform work under this contract for services; or (ii) Enter into a contract with a subcontractor that fails to certify to C4 that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. (b) C4 has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Contract through participation in the E-verify Program or Department Program, as administered by the United States Department of Homeland Security. Information on applying for the E-verify program can be found at: http://www.dhs.gov/xprevprot/programs/gc_1185221678150.shtm (c) C4 shall use either the E-verify program or other Department Program procedures to undertake pre-employment screening of job applicants while the. public contract for services is being performed. (d) If C4 obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, C4 shall be required to: (i) Notify the subcontractor and the County within three (3) days that C4has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (ii) Terminate the subcontract with the subcontractor if within three (3) days of receiving the notice required pursuant to subparagraph (i) of paragraph (d) the subcontractor does not stop employing or contracting with the illegal alien; except that the C4 shall not terminate the contract with the subcontractor if during such three days the subcontractor provides 7 • information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (e) C4 shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. § 8-17.5-102(5). (f) If C4 violates these prohibitions, the County may terminate the contract for a breach of the contract. If the contract is so terminated specifically for a breach of this provision of this Contract, C4 shall be liable for actual and consequential damages to the County as required by law. (g) The County will notify the office of the Colorado Secretary of State if C4 violates this provision of this Contract and the County terminates the Contract for such breach. IN WITNESS WHEREOF the Parties have caused this agreement to be duly executed on the date set forth above. Eagle County, Colorado By and through its Board of County Commissioners LL / By: �� .&Q-& ot ti►cLF co Sara J. Fisher, Chair Attest: x`�z 1: lit CY-6404 Teak J. Simonton, Clerk ,—,• —,;• - , o u;, Cloud City Conservation Center By: Mt 7/V4W Lynne Westerfield Greene Its: STATE OF COLORADO ) )SS. COUNTY OF LAKE ) The foregoing was acknowledged before me,by Lynn sterfield Greene as Se l„},e D,cecc,-- of Cloud City Conservation Center this < I j'ilday of Q j,,tc cyL 1 , 201 3 My commission expires: IS - 17 MARLA K BOND di NOTARY PUBUC Notary Pu is STATE OF COLORADO NOTARY ID 19874019013 My Commission Expires September 15,2017 8