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Home My WebLink About20-04 - Approval of Funding Agreement with St. Vrain Water AuthorityRESOLUTION 1NO.20-04 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, APPROVING A FUNDING AGREEMENT BETWEEN THE TOWN OF FIRESTONE, ACTING BY AND THROUGH ITS WATER ACTIVITY ENTERPRISE, AND THE ST. VRAIN WATER AUTHORITY WHEREAS, the St. Vrain Water Authority ("Authority") is a separate and legal entity established by the St. Vrain Water Authority Establishing Contract ("Establishing Contract") by and between the Town of Firestone acting by and through its Town of Firestone Water Activity Enterprise ("Town") organized and existing as a Water Activity Enterprise under C.R.S. § 37. 4.1-101 et seq., and the Little Thompson Water District ("Little Thompson"); and WHEREAS, the Authority was established, in part, for the purpose of developing systems and facilities for furnishing a potable water supply for the benefit of the Town and Little Thompson, and their constituents and service users; and WHEREAS, the Establishing Contract anticipates that the Authority will finance, design, construct, acquire, operate, maintain, and utilize water resources, facilities and services, and that the Town and Little Thompson, or other public entities may advance funds to the Authority for any purpose subject to repayment by the Authority, and WHEREAS, the Authority does not currently have sufficient funds to pay its general operating expenses; and WHEREAS, the Town is willing to advance certain funds to the Authority for payment of a portion of its general operating expenses with the expectation that such advances will be repaid to the Town if and when the Authority has sufficient revenues, and that Little Thompson, by separate agreement, will also advance funds to the Authority. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: The Funding Agreement between the Town of Firestone acting by and through its Town of Firestone Water Activity Enterprise and the St. Vrain Water Authority to fund costs related to the Authority's general operating expenses is approved in substantially the same form as the copy attached hereto and made a part of this resolution, and the Mayor is authorized to execute the Agreement on behalf of the Town. 1 ATTEST: J VED AS 17�7 &fp,4 TOWN OF 6 Tal to im: fix._=- 8 Bobbi Sind Hayashi, Town Attorney TONE,COLORADO r Mayor FUNDING AGREEMENT THIS FUNDING AGREEMENT ("Agreement") is entered into by and between the TOWN OF FIRESTONE, a Colorado municipal corporation, acting by and through its Town of Firestone Water Activity Enterprise, organized and existing as a "Water Activity Enterprise" under CRS 374.1401 et. seq. ("Firestone"), and ST. VRAIN WATER AUTHORITY, a political subdivision of the State of Colorado (the "Authority") acting as an Enterprise as that term is defined in the Colorado Constitution, Article 10, Section 20. Firestone and the Authority are sometimes referred to herein individually as a "Party" and collectively as the "Parties." RECITALS A. The Authority is a separate legal entity and political subdivision of the State A Colorado established by the St. Vrain Water Authority Establishing Contract dated as of April 24, 2019 (the "Establishing Contract") by and between Firestone and Little Thompson Water District, a quasi -municipal corporation and political subdivision of the State of Colorado ("Little Thompson"), pursuant to § 29-1-201, et seq., C.R.S.; and B. The Authority was established in part for the purpose of developing systems and facilities for a purpose of furnishing a potable water supply for the benefit of Firestone and Little Thompson, Firestone, and their constituents and service users, and C. The Establishing Contract anticipates that the Authority will finance, design, construct, acquire, operate, maintain, and utilize water resources, facilities and services, and that Firestone and Little Thompson or other public entities may advance funds to the Authority for any purpose subject to repayment by the Authority, and D. The Authority does not currently have sufficient funds to pay its general operating expenses; and E. Firestone is willing to advance certain funds to the Authority for payment of a portion of its general operating expenses with the expectation that such advances will be repaid to Firestone if and when the Authority has sufficient revenue, and that Little Thompson, by separate agreement, will also advance certain funds to the Authority. AGREEMENT NOW, THEREFORE, in consideration of the respective undertakings of the Parties as set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Advance of Funds. In order to fund various costs related to the ongoing operations and administration of the Authority, Firestone agrees to advance the sum of {00719579.DOCX / 2 } $41,500 he "Current Advance"), which is 83% of the total amount currently needed by the Authority. Such percentage is equal to Firestone's current dedicated portion of the Defined System Capacity, as that percentage is further defined in a separate intergovernmental agreement that has been or will be entered into between the Authority and Firestone ("Firestone's IGA") pursuant to Article 5.2 of the Establishing Contract. Additionally, in Firestone's sole discretion, Firestone may elect to advance additional funds to the Authority to pay a Funding Shortfall as defined in, and in accordance with, Section 2 below (and if Firestone elects to make any such additional advances, such additional advances, together with the Current Advance, shall collectively be referred to herein as the "Advances"). 2. Request for Additional Advances. If the Authority determines that it will not have sufficient funds available to pay the current operating and administration expenses of the Authority, it shall estimate the anticipated amount of such funding shortfall (the "Funding Shortfall") and submit a written request to Firestone to remit payment of that percentage of the Funding Shortfall equal to Firestone's then -current dedicated portion of the Defined System Capacity, as defined and described in Firestone's IGA. Firestone may, in its sole and absolute discretion, elect to advance and fund the Funding Shortfall or any lesser portion thereof within thirty (30) days after such notice from the Authority. Firestone shall have no obligation to fund any Funding Shortfall, 3. Accounting. Within forty-five (45) days after the end of each fiscal year during the term of this Agreement, the Authority shall complete an accounting of all Advances made pursuant to this Agreement and, upon request, shall provide a copy of the same to Firestone. 4. Subscription Fee. Any and all Advances made by Firestone under this Agreement shall be treated as payment of a portion of the Subscription Fee that Firestone is obligated to pay the Authority under paragraph 5.5.1 of the Establishing Contract. As will be more fully defined in the Firestone IGA, the ongoing operation and administrative costs of the Authority funded by such Advance(s) shall be treated as Non -Construction Costs under the Establishing Contract, 5. Warranties and Representations of Firestone. Firestone hereby represents, warrants and covenants to and for the benefit of the Authority as follows: (a) Firestone has the full power and legal authority to enter into this Agreement. Neither the execution and delivery of this Agreement, nor compliance by Firestone with any of its terms, covenants or conditions, is or will become a default under any other agreement or contract to which Firestone is a party or by which Firestone is or may be bound. Firestone has taken or performed all requisite acts or actions which may be required by its organizational or operational documents to confirm its authority to execute, deliver and perform each of its obligations under this Agreement. {00719579.DOCX / 2 } 2 (b) Firestone has, or will have, sufficient available funds to fulfill its obligation to make the Current Advance under this Agreement. 6. Warranties and Representations of Authority. The Authority hereby represents, warrants and covenants to and for the benefit of Firestone as follows: (a) The Authority has the full power and legal authority to enter into this Agreement. Neither the execution and delivery of this Agreement, nor compliance by the Authority with any of its terms, covenants or conditions, is or will become a default under any other agreement or contract to which the Authority is a party or by which the Authority is or may be bound. The Authority has taken or performed all requisite acts or actions which may be required by its organizational or operational documents to confirm its authority to execute, deliver and perform each of its obligations under this Agreement. (b) The costs and expenses paid by or on behalf of the Authority with the funds received by the Authority from Firestone through the Advances pursuant to this Agreement are or will be costs and expenses that are permitted to be reimbursed by the Authority to Firestone under the Establishing Contract. 7. Term• Termination. (a) The term of this Agreement shall commence upon mutual execution by the Parties and shall remain in effect until terminated as provided herein. (b) Either Party may terminate this Agreement upon written notice to the other Party prior to July of any year, which termination shall be effective January 1 of the following year. 8. Notices. All notices, demands, requests or other communications to be sent by one Party to the other Party shall be in writing and shall be deemed to have been validly given or served if made by courier delivery of such notice in person, or to the addressee by nationally recognized overnight courier service, or by depositing such notice in the United States mail, postage prepaid, addressed as follows: {00719579.DOCX / 2 } 3 To Authority: St. Vrain Water Authority Board of Directors PO Box 464 Firestone, CO 80520 With a copy to: Timothy J. Flynn Collins Cockrel & Cole 390 Union Blvd., Suite 400 Denver, CO 802284556 To Firestone: Town of Firestone Attn: Director of Public Works P.O. Box 100 Firestone, CO 80520 With a copy to: Williamson &Hayashi, LLC Attn: William Hayashi 1650 38th Street, Suite 103 West Boulder, CO 80301 Either Party by written notice so provided may change the address to which future notices shall be sent. All notices shall be considered effective when mailed. 9. Assi nment. Neither Party shall assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other Party. Any purported assignment or delegation in violation of the provisions hereof shall be void and ineffectual. Each of the terms, covenants and conditions hereof shall be binding upon and inure to the benefit of each of the Parties and their respective successors and assigns. 10. Default/Remedies. In the event of a breach or default of this Agreement by either Party, the non -defaulting Party shall be entitled to exercise all remedies available at law or in equity, including an action for specific performance and/or monetary damages; provided, however, that absent bad faith or fraud by the Authority, no punitive award or damages shall be imposed upon the Authority because of its inability to repay the Repayment Amount. The Parties each hereby waive and relinquish any right to seek or recover any consequential, specific or punitive damages from the other Party in connection with this Agreement or any claims arising from or in connection with this Agreement. In the event of any litigation, arbitration or other proceeding to enforce the terms, covenants or conditions hereof, the prevailing Party in such litigation, arbitration {oo�i9s�9.Docxia } 4 or other proceeding shall be entitled to obtain as part of its judgment an award of its A easonable attorneys' fees. 11. Governin Law. This Agreement shall be governed and construed under the laws of the State of Colorado. Venue for any judicial action shall be in the State of Colorado District Court for Larimer or Weld County. 12. Time is of the Essence. All times stated herein are of the essence. 13. Inte rag tion. This Agreement constitutes the entire agreement between the Parties with respect to the matters addressed herein. All prior discussions, negotiations and agreements regarding the subject matter hereof are merged herein. 14. Amendment. This Agreement may be amended from time to time by agreement between the Parties. No amendment, modification or alteration of the Agreement shall be binding upon either Party, unless the same is in writing and duly executed by each of the Parties. IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates set forth below. Attest: Secretary ST. VRAIN WATER AUTHORITY, a political subdivision of the State of Colorado Name: Title: Date: � {00719579.DOCX / 2 } E • �! Attest: TOWN OF FIRESTONE, acting by and through its Town of Firestone Water Activity Enterprise By: {00719579.DOCX / 2 }