HomeMy WebLinkAboutC31780 Fund Facility Improvements 45900 Portola AveContract No. c31780
CITY OF PALM DESERT
STAFF REPORT
REQUEST: APPROVAL OF GRANT FUNDING IN THE AMOUNT NOT TO
EXCEED $75,000 TO THE BERMUDA DUNES LEARNING
CENTER (PALM DESERT) TO FUND FACILITY IMPROVEMENTS
AT 45-900 PORTOLA AVENUE (HOPE LUTHERAN CHURCH
FACILITY) FROM THE CITY'S CHILD CARE DEVELOPMENT
FEES FUND 228
SUBMITTED BY: Heather Buck, Project Coordinator
CONTRACTOR: Bermuda Dunes Learning Center
42115 Yucca Lane
Bermuda Dunes, CA 92203
DATE: April 26, 2012
CONTENTS: Bermuda Dunes Learning Center Request Letter
Photographs
Child Care Facility Improvement Matrix
Grant Agreement
Recommendation
By Minute Motion:
1. Approve a $75,000.00 grant to Bermuda Dunes Learning Center (Palm
Desert) for facility upgrades;
2. Appropriate $75,000.00 from the Child Care Mitigation Fund 228; and
3. Authorize the City Manager to execute the required agreement.
Background
Child care mitigation impact fees have been collected from new commercial
development projects since 2005. Impact fees are required to be spent on facility
construction or improvements. To date, the City has issued grant funding to the YMCA,
Boehm Child Care Connection, Tot Stop, Inc., Montessori School of the Desert, and
Desert Sands Unified School District/Early Child care Education Program.
Staff Report
Bermuda Dunes Learning Center (Palm Desert) Grant
April 26, 2012
Page 2 of 4
The Bermuda Dunes Learning Center (BDLC) located in Bermuda Dunes has been
serving children and families for almost 20 years. Currently over 200 children are
enrolled; approximately 28 infants, 150 preschoolers and 40 school age children. BDLC
is the only program in the Valley with an inclusion program, serving young children with
special needs. The center was the first in the Valley accredited through the National
Association of Education of Young Children (NAEYC) in 2004. BDLC is one of three
accredited centers in the desert. It is the only private/for profit center accredited in the
Coachella Valley.
BDLC has received approval from the Hope Lutheran Church, located at 45-900 Portola
Avenue, to open a new child care facility within the church's former child care building.
With repairs both inside and out, the site is an ideal location for child care. The new
child care program will be operated by the Bermuda Dunes Learning Center. The
facility will be open to the public and licensed for 60 children. The 3,000 square foot
building on the property of Hope Lutheran Church is located next to Washington Charter
Elementary School. There are four classrooms, four bathrooms, and a playground in
need of repair and additional equipment. Once open and licensed the program will be in
operation between the hours of 7:00 a.m. to 6:00 p.m., caring for approximately forty
children ages 4 to 5, and offering an enrichment program for twenty children ages 6 to
10 for before and after school care. The facility will primarily serve the children
attending Washington Charter Elementary.
Although BDLC will be providing child care on the property of Hope Lutheran Church,
the program will be secular (not affiliated with the church). BDLC has entered into a five
year lease agreement with the church to lease the classroom building. The child care
will not be affiliated with the church. BDLC will be collaborating with the principal, staff,
and parents of Washington Charter Elementary to meet the child care needs of the
Palm Desert community.
The facility requires upgrades to improve the interior facilities, safety, energy efficiency,
exterior appearance, and comply with licensing requirements (see attached photos).
The BDLC submitted a request for grant funding for the following upgrades with
approximate costs:
• Install new fire alarm system to comply with current Building/Fire Code: $10,000
• Plumbing repairs to make fixtures operational: $1,000
• Remove acoustic (popcorn) ceiling: $5,920
Acoustic ceiling has tested negative for asbestos.
• Wall repairs and painting of walls and ceilings: $8,500
Building is in need of new paint to improve appearance.
G:\rda\Heather Buck\Child Care\Staff Reports\Bermuda Dunes Learning Center Grant Request 4-26-12.doc
Staff Report
Bermuda Dunes Learning Center (Palm Desert) Grant
April 26, 2012
Page 3 of 4
• Repair/replace broken cabinets and countertops: $1,900
• Replace inefficient T12 lamps with new energy efficient fixtures and mount to
ceiling: $3,700
• Level and install new flooring: $11,000
• Repair existing playground equipment and replenish required soft surface (wood
chips): $15,000
New equipment is needed, but not a top priority. Cost for new equipment is
estimated at $48,000
• Outdoor Drinking Fountain and Chiller — replace broken unit: $2,000
• Install new shade structure — one is required: $12,000
A second shade structure is desired, but not a top priority. Estimated cost for
second shade structure is $12,000.
• Repair and install new safety fencing: $675
The total cost for these upgrades is approximately $75,000.00 (see attached letter and
photos).
Six other child care facilities have requested funding in the past seven years, but none
of these have added new capacity (see attached Child Care Facility Improvement
matrix). The BDLC in Palm Desert will add 60 new child care spaces. Average funding
approved has been approximately $40,000 for each grant. The Bermuda Dunes
Learning Center is requesting $75,000 in assistance.
The City has funded the renovation of child care facilities located at religious institutions
in the past (Boehm Center) and the City Attorney has reviewed the details of this
proposal and does not have any exceptions to proceeding with this project.
The Bermuda Dunes Learning Center has an established history of providing quality
child care in the Coachella Valley for the past 20 years and provides tuition subsidies as
have all of the past applicants for this grant funding.
If approved, the City Council will authorize the City Manager to approve an agreement
with the Bermuda Dunes Learning Center (Palm Desert) for up to $75,000.00 with a (5)
five year Operating Covenant. The Bermuda Dunes Learning Center will be required to
sign an agreement and submit invoices and documentation of the improvements
performed. Once the improvements are complete staff will inspect and issue the grant
funding. Staff recommends approval.
G:\rda\Heather Buck\Child Care\Staff Reports\Bermuda Dunes Learning Center Grant Request 4-26-12.doc
Staff Report
Bermuda Dunes Learning Center (Palm Desert) Grant
April 26, 2012
Page 4 of 4
Fiscal Analysis
Funds are uncommitted and available in the Child Care Mitigation Fund 228.
The current fund balance in for the Child Care Mitigation Fund is $1,500,000. Funds in
this account are required to be expended within five years of collection. Staff is
currently working on a Request for Proposals (RFP) for Architectural Services for a new
child care facility at the Freedom Park site.
Submitted By:
A.
Heather Buck, Project Coordinator ,artin Alvarez, Redevelopment Manager
Department Head: CITYCOUNCILACTION
APPROVED ✓ DENIED
RECEIVED OTHER
J i McCarthy, Assistant anager MEETING DAI 1
AYES: t
NOES:
ABSENT:
Pau . Gibson, Finance Director ABSTAIN:
VERIFIED BY: 01045
Original on File with City rk's Office
John M. Wohlmuth, City Manager
\\srv-fi12k3\groupsVda\Heather Buck\Child Care\Staff Reports\Bermuda Dunes Learning Center Grant Request 4-26-12.doc
ell Bermuda Dunes Learning Center
Hands on Approach to Learning
42115 Yucca Lane, Bermuda Dunes, CA 92203
Phone: (760) 772-7127 Fax: (760)345-6991
April 5, 2012
To Whom It May Concern,
Bermuda Dunes Learning Center, has been serving children and families for almost 20
years. Currently over 200 children are enrolled; approximately 28 infants, 150
preschoolers and 40 school age children. BDLC is the only program in the valley with an
inclusion program, serving young children with special needs. The center was the first in
the valley accredited through the National Association of Education of Young Children
(NAEYC) in 2004. BDLC is one of three accredited centers in the desert. It is the only
private/for profit center accredited in the Coachella Valley. BDLC strives to provide a
safe and high quality program for children.
As the Executive Director and co-founder of BDLC, I have an extensive background in
early childhood, and I am very involved in the early childhood community. My
experience includes teaching kindergarten for the Palm Springs Unified School District,
teaching early childhood courses at College of the Desert, including early childhood
administration, serving on both the boards of the East Childcare Council ( currently the
president), and the executive board of the Riverside Child Care Consortium (currently
the first VP). In addition, I am an advisor for the childcare field for the Regional
Occupational Program (ROP) for Riverside, College of the Desert Early Childhood
Education department, and a Mentor Director for the state of California, giving guidance
to new and current preschool directors. I also participate as the early childcare
representative on Human and Community Resources Committee for CVAG. I hold a BS
in education and early childhood, and a MA in Education/Administration.
The Hope Lutheran Church located at 45900 Portola, closed its childcare program
approximately five years ago. With repairs both inside and out, the site will be a perfect
location for childcare. The new childcare program proposed, run by the Bermuda Dunes
Learning Center, will be open to the public, licensed for 60 children. The 3,000 square
foot building, on the property of Hope Lutheran Church is located next to Washington
Charter Elementary School. There are four classrooms, four bathrooms, and a
playground that all need repair and additional equipment. Once open and licensed, the
program will be in operation between the hours of 7:00 a.m. — 6:00 p.m., caring for
approximately forty children ages 4 to 5, and offering an enrichment program for twenty
children, ages 6 to 10 for before and after school care serving the children attending
Washington Charter Elementary.
Although BDLC will be providing childcare on the property of the Hope Lutheran
Church, the program will be secular. BDLC is leasing the premises, and the childcare
program is separate from the church. The five-year term lease begins in August, with
the option to extend the lease each year. BDLC will be collaborating with the principal,
staff and parents of Washington Charter Elementary to meet the childcare needs of the
Palm Desert community.
We are excited to open a quality childcare program in the city of Palm Desert, and our
goal is to open by the end of Aug 2012. We greatly appreciate ANY support of funding
that will help us get this needed program up and running, meeting all California State
Licensing requirements. We are asking for assistance for repairs, renovation, and
equipment both inside and out. We are asking for $65,000 - $75,000 to start a new
childcare facility. Although the facility was previously a childcare center, it has to reapply
with the state, and bring the inside and outside areas to code, ensuring a safe
environment for children. If you have any questions, please let us know.
On the following page is a description of priority items, and. attached is a list of the
items, costs, and the period to complete the work. The plan is to license the center by
July, and open the end of August.
If possible, could we be included on the agenda for the next council meeting? We hope
to start renovating the facility this month. so we can open up at the start of the new
school year, August 27. We will be available to attend the city council meeting to answer
any questions.
If you have any questions, I can be reached on my cell.
Thank you again for your help.
Sincerely,
Gayle Clark (760) 861-2587 cell
Executive Director
Bermuda Dunes Learning Center
(& (future) BDLC in Palm Desert
On the following page are priority items. Please let us know if you have any
questions.
$10,000 FIRE ALARM SYSTEM: The building currently does not have a fire alarm
system; a requirement that is now needed. The cost proposed to install the system is
approximately $10,000.
$1,000 PLUMBING: Several toilets are not in operation.
$14,500 PAINT/DRYWALL: Paint all interior walls, ceilings and put an epoxy on the
bathroom floors, repair holes in the walls, and bathroom ceiling, paint outside doors to
classrooms, scrape acoustic ceiling, re -stucco north wall where classroom patios are
$1,900 COUNTER TOPS/CABINETS: Repair/Replace in bathrooms and cabinets
under the sinks
$3,700 ELECTRICAL: remove old light fixtures. After acoustic ceiling is gone, replace
old light fixtures with energy efficient lights, and mount to ceiling
$15,000 ($15,000 - *$48,000) PLAYGROUND EQUIMENT AND SOFT SURFACE
New equipment is needed, and all existing equipment needs repair. Purchase and
Install of wood chips (soft surface) to go under the play equipment. Some equipment
that is there cannot be fixed and will be removed. Equipment on site is not safe as is.
The PRIORITY is to remove and repair all existing equipment, including putting in soft
surface under all existing equipment. *New equipment is a need, but this is not a top
priority.
$2000 DRINKING FOUNTAN Replace broken Drinking Fountain
$12,000 SHADE SHELTER/S There is existing poles, but the tarp is off, and the poles
are too close to the existing equipment; must be 6 feet away. Removal of the poles is
necessary and a new shade shelter installed. 2 shade shelters is ideal $24,000; if
needed we will put 1 in due to cost.
$675 FENCING: Fencing needed to secure electrical area from children's outside
area;. Classroom 4 courtyard needs a fence to separate children from getting to an
unsafe area with wires, and storage. Existing latches on gates and one pole needs to
be repaired
$4,000 CHILDREN'S MATERIALS: Educational Equipment/Furniture:
$11,000 FLOORING: The existing flooring is missing tiles, and many are cracked and
chipped throughout all four classrooms, as well as in the bathrooms. Current flooring is
not safe for children and won't pass licensing guidelines as is. (June)
*A second shade shelter and additional playground equipment is needed, but not a top
priority due to funding.
PRIORITY ITMES NEEDED:
TIME ITEM AMOUNT
APRIL/MAY
MONITORED FIRE ALARM
$10,000
Install a system per regulations
MAY
PLUMBING
$1,000
Fix and/or replace all toilets/faucets
APRIL/MAY
DRYWALL/PAINT
$5,920
Remove Acoustic Ceilings
MAY
Drywall/PAINT
8,500
Paint all interior walls and ceilings, and repair
holes throughout
MAY
Counters/Cabinets
$1,900
repair/replace broken cabinets and tops
MAY
ELECTRICAL
$3,700
Replace old light fixtures with energy
efficient lights, and mount to ceiling
MAY
PLAYGROUND EQUIP
$15,000
15,0 - 4 0
Repair existing equip, wood chips
MAY
DRINKING FOUNTAIN
$2,000
replace broken one
MAY
SHADE SHELTER
$12,000
2 are ideal/ 1 is required
JUNE
FENCING
$675
To secure area from unsafe area
JUNE
CHILDREN MATERIALS
$4,000
JUNE
FLOORING
$11,000
Repair and epoxy bathroom floors, New
flooring in all classes
JUNE
Fire Dept Inspection
DUNE orJULY
lChildcare License FINALE
$980
AUG
JBDLCCHILDCARE OPENS:)
TOTAL: $76,675
We are asking for $65,000 for assistance from the city of Palm Desert to help open
up a childcare facility located at Hope Lutheran Church, adjacent to Washington
Charter Elementary School.. The existing building is over 33 years and needs a lot of
repairs and clean up. Once renovated, the site has great potential. At this time, the
priority is to get the interior building safe, clean, to code per state childcare
requirements. The flooring, walls, ceilings, and bathrooms need work. A fire
alarm system is required. The top priorities for the outside area include: a
working drinking fountain, at least one shade shelter, fencing, repairs of
existing playground equipment and replenish required soft surface under the
existing equipment. *There is a need for new playground equipment, but this is not
the main priority, but is listed above. ANY help from the city is Greatly appreciated.
BDLC has been successfully in operation for 20 years, and will continue to provide
quality childcare to children at this new Palm Desert location, hoping to open by the
end of August, 2012.
a)
co
-0
p
K
n
c�D
0
3
0
9L
O
3'
v
3
n
3
3
V)a
3
o
D
3
0
o
rD
n
m
`"
L
o
CD
r�
c
o
Ln
o
o,
(D
LA
O
o
O
Q
m
(D
rD
cr
o
N
N
M
O
'
O
rD
7
N
S
m
3
rD
K
ffDD
rD
K
ci
N
7
(n
W
•VA
Vl•
W
�
�
Q
l0
V
In
W
O
W
C
O
O
fD
�r
00
O
O
P,
N
D
O
O
W
O
O
O
O
W
m
m
m
m
m
rD
OZ
0
(A
(A
(A
V
O
fD
Q
.J
n
n�
d
0)
to
O
0)
O
In
0)
n
G
O
to
N
Im
N
0)
ko
to
u
D)
O
((D
Z
N
rD
a
n
rD
Q
0)
0
0
0
0
0
0
0
T�
Tn
Z
Z
Z
Z
Z
T�
0
O
O
0
0
o
00
O
0
v
>
>
=3
=3
v
v
O
O
O
O
O
O
O
r+
r+
rt
r+
'
O
Z
Z
Z
Z-
o
V,O
O
N
V,O
O
n
n
0J
rr
rr
fD
D)
rY
fD
DU•
O
c
m
m
m
m
mcc
rD
rD
O
3
•J
n T
:2
-0 TI
rD
Tl
m
L4
rD
L4
O
n
-V
-
:2
:2
:2
:O
-n
n
-a
V)
0
-a T7
m
3
c
3
v o
O
a)
<
d
7 n
;•
M
=3
rD
C
j
v
v
<
v
7
O
v
-<
W
<
d
K
c�
3
7
v
T.
3
3-
7r
3
d
3 rD
r(D
d
<
O _s,
dU
r•r
w
dq
a.
j
D�
rr
Q.
OU
DU
Uq
r•r
�
r-r �
M
W
O
�,
m
O
a�u
<
*
'<
O
M
O
Q
N
O
O
O
O
c
rt
rD
O
m
c<
O
rD
m
w
c
rD
"
O
�n
C
7
3
C
C
7
C
7
rD
O
T
�
(D
C
Q
(D
O
Q
Cu
O_
O_
O_
p<)
O
rrDD
o-
rD
to
�.
OQ
r+,
O
C
N
.
(p
N
0
7
7
0U
N
r0+
D)
0
3
7
Contract No. C31780
CHILD CARE FACILITY AUGMENTATION AGREEMENT
THIS CHILD CARE FACILITY AUGMENTATION AGREEMENT ("Agreement"),
made this day of , 20 , between
Hereinafter called the "Operator" and the CITY OF PALM DESERT, a municipal
corporation, hereinafter called the "City".
NOW, THEREFORE, the parties agree as follows:
BASIC PROVISIONS
The Operator is the lessee of the following certain real property hereinafter referred to as
the "Property" whose address is:
Bermuda Dunes Learning Center (Palm Desert)
45-900 Portola Avenue
Palm Desert, CA 92260
The Property is more fully described as that certain real property situated in the City of
Palm Desert, County of Riverside, State of California, described as follows:
APN: 625-182-011; 3.22 ACRES M/L IN LOTS 2, 3 & 4 BLK E4 MB 022/07PAND
POR NE 1/4 OF SEAND POR SW 1/4 OF SEC 21 T5S R6EE
Operator's address for Notices if different from Property Address:
Bermuda Dunes Learning Center
42-115 Yucca Lane
Bermuda Dunes, CA 92203
RECITALS
This Agreement is entered into with reference to the following facts:
A. WHEREAS, the Operator is a for profit S Corporation which intends to
provide additional child care services to persons residing within the CITY OF PALM
DESERT; and
GArda\Heather Buck\Child Care\Staff Reports\CCR-Agreement BDLC.doc 1
72500.00001 \7382181.1
DRAFT 4/12/12
Contract No. C31780
B. WHEREAS, Operator intends to be the Operator of the state -licensed Child
Care Facility (hereinafter referred to as "Facility") on certain land (hereinafter referred to as
the "Property") in the City, described more particularly in Schedule A attached hereto; and
C. WHEREAS, upon the construction of the Improvements described herein,
Operator will be able to accommodate 60 children in its Child Care Facility; and
D. WHEREAS, the City desires that the Improvements be made to the Property
so that an additional 60 child care spaces are available to the residents of the City and is
willing to assist the Operator therein, in accordance with this Agreement; and
E. WHEREAS, the Operator is willing to make the Improvements in accordance
with the terms and conditions of this Agreement; and
F. WHEREAS, completion of the Improvements constituting the Project
pursuant to this Agreement is in the best interests of the City, and the health, safety and
welfare of residents and taxpayers of the City, and is in accord with the public purposes
and provisions of applicable state and local laws; and
G. WHEREAS, the City desires to fund a one-time grant with conditions to the
Operator in the total amount not to exceed $75,000 for the express purpose of improving
the Facility as described in Schedule B.
NOW, THEREFORE, all recitals set forth hereinabove are incorporated
herein as undertakings and representations by the parties and the parties hereto agree as
follows:
ARTICLE 1. DEFINITIONS.
Section 1.1. Definitions. The following terms, as used in this Agreement, shall have
the meanings given unless expressly provided to the contrary:
1.1.1. Grant means the funds to be delivered by the City to the Operator upon the
satisfactory completion of the Improvements.
1.1.2. Agreement means this Child Care Facility Augmentation Agreement.
1.1.3. City means the CITY OF PALM DESERT, a municipal corporation.
1.1.4. Improvements mean the permitted improvements specified in Exhibit "B".
1.1.5. Project means the construction of the Improvements upon the Property.
G:\rda\Heather Buck\Child Care\Staff Reports\CCFI-Agreement BDLC.doc 2
72500.00001\7382181.1
DRAFT 4/12/12
Contract No. c31780
ARTICLE 2. DEVELOPMENT OF THE PROPERTY.
Section 2.1. Title to the Property The Operator represents and warrants that it
possesses a (5) five-year lease for the classroom building located on the property as of the
date of the execution of this Agreement. If Operator is lessee, not Owner of the Property,
Operator certifies it has received express written permission to proceed with the
improvements to the Owner's property listed in Schedule B.
Section 2.2. Development of the Property
2.2.1. Local, State and Federal. The Operator shall carry out the construction of the
Improvements in conformity with all City permits and all applicable laws.
2.2.2. Nondiscrimination during Construction. The Operator shall not discriminate
against any employee or applicant for employment because of age, sex, marital status,
race, handicap, color, religion, creed, ancestry, or national origin in the construction of the
Improvements.
2.2.3. Cost of Construction. The cost of developing and constructing the
Improvements shall be borne solely by the Operator and shall not be an obligation of the
City.
2.2.4. Scope of Development. The Operator hereby agrees to construct the
Improvements on the Property in accordance with and within the limitations of this
Agreement. In connection with such construction, the Operator shall comply with the plans
and presentations, as approved by the City.. The City's obligation to deliver to the
Operator the Grant is expressly contingent upon the satisfactory completion by the
Operator of the Improvements in accordance with the plans and specifications previously
approved by the City.
2.2.5. Changes in Construction Drawings. If the Operator desires to make any
changes in the Final Construction Drawings and related documents after their approval by
the City, the Operator shall obtain all necessary City approvals and shall submit evidence
of the same to the City.
2.2.6 City Publicity Rights. City may publicize the participation of the Operator and
Property in the Child Care Facility Augmentation Program.
GArda\Heather Buck\Child Care\Staff Reports\CM-Agreement BDLC.doc
72500.00001\7382181.1
DRAFT 4/12/12
Contract No. c31780
ARTICLE 3. CONSIDERATION TO OPERATOR.
Section 3.1 Responsibilities of City
3.1.1 City Consideration, upon the timely completion of the construction of the
Improvements in accordance with this Agreement, following inspection and approval bythe
City and upon receipt by the City of proper invoices or otherwritten evidence of payment by
the Operator that is acceptable to City, the City shall pay or deliver to the Operator or pay
or deliver on behalf of the Operator, the costs incurred by the Operator in connection with
the development and construction of the Improvements, including permit fees paid to the
City, services provided by the City's employees, independent contractors and agents, and
professional and materials costs, but shall not exceed $75,000 in the aggregate ("Grant").
City may deny payment if City staff determines that the costs are not reasonable or that
insufficient documentation exists as evidence of payment by the Operator for
improvements at the Property. Any amounts previously paid or delivered to or on behalf of
the Operator by the City for costs in connection with the development of the Improvements,
such as architect fees, shall be deducted from the foregoing described payment.
3.1.2 The appropriation of funds by the City prior to or following the execution of this
Agreement, for the expenditures and services contemplated herein, shall not create fixed
or binding obligations upon the City to pay same to the Operator; all payments shall be
dependent upon the filing of a proper request and subsequent inspection of the
improvements by City.
3.1.3 City may terminate this Child Care Facility Augmentation Agreement at City's
sole discretion if substantial Improvements exceeding ten percent (10%) of the overall
proposed Improvements are not commenced within ninety (90) days or if all Improvements
are not completed within one hundred eighty (180) days.
Section 3.2 Responsibilities of Operator
3.2.1 The Operator agrees to construct the Improvements detailed in its application
for funding and in Schedule B, and to conduct all programs specified therein in a manner to
reflect credit upon the City and Operator.
3.2.2 Prior to commencement of construction, the Operator shall, at the Operator's
expense, secure, or cause to be secured, any and all applicable permits, which may be
required by City having jurisdiction over the improvements.
3.2.3 Five Year Operating Covenant. Operator shall operate the Child Care
Facility a minimum of (10) ten months per year at all times from within 30 days from
payment of the Grant until a date that is five years after said date. The Grant shall by
amortized over that five year period on a straight line basis. A default of this condition and
Wrda\Heather Buck\Child Care\Staff Reports\CCH-Agreement BDLC.doc 4
72500.00001\7382181.1
DRAFT 4/12/12
Contract No. c31780
covenant shall be considered a material default of this Agreement. In such Event City may
declare the unamortized balance of Grant immediately due and payable. Furthermore,
during the period that the Five Year Operating covenant is in effect, Operator shall not
request, nor shall be qualified to receive, any other financial assistance for operations or
improvements from the City.
3.2.4 Subsidies to Low Income Palm Desert Residents. During the period in which
the Five Year Operating Covenant is in effect, Operator shall subsidize child care services
to Low Income Palm Desert Residents in a cumulative amount of at least $10,000 per year
or 10% of enrollment at a 50% subsidy level, if full enrollment is not achieved, pursuant to
criteria to be developed jointly by Operator and City. "Low Income Palm Desert Residents"
shall be residents of extremely low, very low or low income households, within the meaning
of those terms under California Health and Safety Code Sections 33000, et seq., which
households have the principal place of residence within the City.
ARTICLE 4. TRANSFERS AND SECURITY INTERESTS.
Section 4.1. Limitation as To Transfer of the Property and Assignment of
Agreement. If prior to the acceptance by City of the Improvements and Certification
thereof, the Operator desires to assign or transfer any of the Operator's rights in this
Agreement to or in favor of any person or entity, no such assignment or transfer by the
Operator shall be attempted without the prior written approval of the City. Should any
transfer of assignment be requested within five years of the grant, the Operator shall
reimburse the City the unamortized portion of the Grant.
ARTICLE 5. USE OF THE PROPERTY.
Section 5.1. Uses. The Operator covenants and agrees for itself, its successors
and assigns that during construction and thereafter the Operator, such successors and
assignees shall use the Property in accordance with all applicable laws. The Operator shall
not use the Property for any uses prohibited by applicable City zoning ordinances or
resolutions.
Section 5.2. Obligation to Refrain from Discrimination. There shall be no
discrimination against or segregation of any person, or group of persons, on account of
sex, marital status, age, handicap, race, color, religion, creed, national origin or ancestry in
the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property,
and the Operator (itself or any person claiming under or through the Operator) shall not
establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use, or occupancy of tenants, lessees,
subtenants, sublessees, or vendees thereof or any portion thereof.
G:lydalHeather BucklChild Carel5taff ReporMCCR-Agreement BDLC.doc 5
72500.00001 \7382181.1
DRAFT 4/12/12
Contract No. C31780
ARTICLE 6. DEFAULTS, REMEDIES AND TERMINATION.
Section 6.1. Defaults - General.
6.1.1. Subject to the extensions of time set forth in Section 7.8, failure or delay by
either party to perform any term or provision of this Agreement constitutes a default under
this Agreement. The party who so fails or delays must immediately commence to cure,
correct, or remedy such failure or delay, and shall complete such cure, correction, or
remedy with reasonable diligence and during any period of curing shall not be in default.
6.1.2. The non -defaulting party shall give written notice of default to the party in
default, specifying the default complained of by the injured party. Failure or delay in giving
such notice shall not constitute a waiver of any default, nor shall it change the time of
default.
6.1.3. Except as otherwise expressly provided in this Agreement, any failure or
delay by either party in asserting any of its rights or remedies as to any default shall not
operate as a waiver of any default or of any such rights or remedies or deprive either such
party of its right to institute and maintain any actions or proceedings which it may deem
necessary to protect, assert or enforce any such rights or remedies.
Section 6.2. Legal Actions.
6.2.1. Institution of Legal Actions. In addition to any other rights or remedies
provided in Section 6.5, either party may institute legal action to cure, correct or remedy
any default, to recover damages for any default, or to obtain any other remedy consistent
with the purpose of this Agreement. Such legal actions must be instituted in either the
Superior Court of the County of Riverside, State of California, or in an appropriate
municipal court in that County.
6.2.2. Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
6.2.3. Acceptance of Service of Process. If any legal action is commenced by the
Operator against the City, service of process on the City shall be made by personal service
upon the City Manager or City Clerk, or in such other manner as may be provided by law.
If any legal action is commenced by the City against the Operator, service of process on
the Operator shall be made by personal service upon either party identified as the
Operator, or in such other manner as may be provided by law, whether made within or
without the State of California.
G:\rda\Heather Buck\Child Care\Staff ReporMCCR-Agreement BDIC.doc 6
72500.00001\7382181.1
DRAFT 4/12/12
Contract No. C31780
Section 6.3. Rights and Remedies are Cumulative. Except as otherwise expressly
stated in this Agreement, the rights and remedies of the parties are cumulative, and the
exercise by either party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same time or different times, of any other rights or remedies for the
same default or any other default by the other party.
Section 6.4. Inaction Not a Waiver of Default. Except as expressly provided in this
Agreement to the contrary, any failures or delays by either party in asserting any of its
rights and remedies as to any default shall not operate as a waiver of any default or of any
such rights or remedies, or deprive either such party of its rights to institute and maintain
any actions or proceedings which it may deem necessary to protect, assert or enforce any
such rights or remedies.
Section 6.5. Remedies.
6.5.1. If either party defaults with regard to any of the provisions of this Agreement,
the non -defaulting party shall serve written notice of such default upon the. defaulting party.
If the default is not commenced to be cured within ten (10) days after service of the notice
of default and is not cured promptly in a continuous and diligent manner within a
reasonable period of time after commencement thereof, then the defaulting party shall be
liable to the non -defaulting party for any damages caused by such default, and (i) the non -
defaulting party may thereafter commence an action for damages against the defaulting
party with respect to such default, and/or (ii) the non -defaulting party, at its option, may
thereafter commence an action for specific performance of the terms of this Agreement
pertaining to such default.
In the event that any party to this Agreement shall bring an action to enforce the
provision of this Agreement or as a result of any default in the performance of any of the
provisions of this Agreement, the prevailing party in such action shall be entitled to recover
all costs and expense, including reasonable attorney's fees, incurred by such party in
connection with such action.
6.5.2. If the Operator shall assignor attempt to assign this Agreement in violation of
this Agreement, then the City, at its option and upon 30 days written notice to the Operator,
may terminate this Agreement.
ARTICLE 7. GENERAL PROVISIONS.
Section 7.1. The Operator's relationship to the City is solely that of an Independent
Contractor. Operator is not an agent of the City, nor an employee of the City. No
employee of the Operator is an employee or agent of the City in any respect, and the
Operator shall be solely responsible for all activities for its employees, agents, its own
independent contractors and their parties for all losses, costs, damages, or injuries
G1rdMHeather Buck\Child CarelStaff Reports\CUI-Agreement BDLC.doc
72500.00001 \7382181.1
DRAFT 4/12/12
Contract No. C31780
(including wrongful death) caused by or arising out of any act or omission of the Operator
its employees, agents or independent contractors relating to the services performed or to
be performed by the Operator hereunder. City shall not direct the manner in which
Operator provides its services, but Operator shall be responsible for the results achieved.
The means by which Operator provides the services specified hereunder shall be
determined solely by Operator. City shall exercise no control over the manner and details
of performance; nor shall City provide supplies or tools utilized to accomplish the tasks
undertaken by Operator.
The Operator shall indemnify, hold harmless and defend the City and its officers and
employees, from and against all claims, damages, losses, and expenses, including but not
limited to attorneys fees, arising out of or resulting from construction of the Improvements,
regardless of whether or not such claim, damage, loss or expense is cause in part by the
City. In claims against the City by any employee or subcontractor of the Operator, the
indemnification obligation under this Section 7 shall not be limited by a limitation upon
amount or type of damages, compensation or benefits payable by or for the Operator
under worker's compensation, disability, or other benefits laws.
Section 7.2. Notices. Demands and Communications between the Parties.
Notices, demands and communications between the City and the Operator shall be
deemed sufficiently given if dispatched by registered or certified mail, postage prepaid,
return receipt requested, to the principal offices of the City and the Operator. Such written
notices, demands and communications may be sent in the same manner to such other
addresses as either party may from time to time designate by mail as provided in this
Section.
Whenever it shall be necessary for either party to serve any notice on the other
party respecting this Agreement, such notice shall be served by certified mail addressed as
specified below, unless and until a different address is specified by either party. Such
notice shall be deemed to have been served within seventy-two (72) hours after the same
has been deposited in the United States Post Office with postage fully prepaid thereon.
This shall be valid and sufficient service of notice for all purposes.
Section 7.3. Conflicts of Interest. No member, official or employee of the City or
the Agency shall have any direct or indirect interest in this Agreement, nor participate in
any decision relating to the Agreement that is prohibited by law.
Section 7.4 Political Activity Prohibited. The Operator shall not itself, or by its
officers or directors acting on behalf of the Operator, engage in any form of political activity
in relation to local government affairs. This provision shall not preclude Operator from
supporting or opposing legislation affecting Operator's operations or directly affecting
Operator's members, but the Operator, either as an organization, shall not actively support,
endorse, or oppose a candidate for local (city, county, school district, or other local unit of
government) office, or any local elected official, nor shall any of Operator's publications,
Garda\Heather BucMChild Car6&aff Reports\CUI-Agreement BDLC.doc
72500,00001\7382181.1
DRAFT 4/12/12
Contract No. c31780
pamphlets, brochures or promotional newsletters play any such role in local political
matters. Nothing herein shall prevent an officer or Board Member from seeking elective
office in his or her own right, but no endorsement of any such candidacy by the Operator
shall be permitted. Operator further agrees not to participate in, or otherwise intervene in
(including the publication or distribution of statements concerning), any political campaign
on behalf of, or in opposition to, any local elected official or candidate for public office.
Nothing herein shall preclude any individual officer, director or member of the Operator
from taking part personally in any political campaign; so long as such person's participation
is solely as an individual and not as a representative or agent of the Operator.
Section 7.5. Warranty against Payment of Consideration for Agreement. The
Operator warrants that it has not paid or given, and will not pay or give, to any third person,
any money or other consideration for obtaining this Agreement, other than normal costs of
conducting business and costs of professional services such as architects, engineers and
attorneys.
Section 7.6. Warranty against Collusion with Paid Parties. The Operator warrants
that it has not, nor will not in connection with this Project, enter into any agreement
whereby a paid party that Operator requests Consideration from City returns to Operator
some portion of said payment in any manner whatsoever.
Section 7.7. Nonliability City Officials. No member, official or employee of the City
shall personally be liable to the Operator, or any successor in interest of the Operator, in
the event of any default or breach by the City or for any amount which may become due to
the Operator or successor or on any obligation under the terms of this Agreement.
Section 7.8. Enforced Delay: Extension of Times of Performance. In addition to
specific provisions of this Agreement, delay in performance by either party hereunder shall
not be a default where delays or defaults are due to war; insurrection; strikes; lock -outs;
riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy;
epidemics; quarantine restrictions; freight embargoes; lack of transportation; unusually
severe weather; or any other causes beyond the control or without the fault of the party
claiming an extension of time to perform. An extension of time for any such cause shall
only be for the period of the enforced delay, which period shall commence to run from the
time of the commencement of the cause. If, however, notice by the party claiming such
extension is sent to the other party more than thirty (30) days after the commencement of
the cause, the period shall commence to run only thirty (30) days prior to the giving of such
notice.
Section 7.9. Approvals by City and Operator. Wherever this Agreement requires
the City and the Operator to approve any contract, document, plan, proposal, specification,
drawing or other matter, such approval shall not unreasonably be withheld.
G:Vda\Heather Buck\Child CarelStaff Reports\CCFl-Agreement BDLC.doc 9
72500.00001 \7382181.1
DRAFT 4/12/12
Contract No. C31780
Section 7.10. Contact Persons. All contact concerning the implementation or
interpretation of this Agreement shall be made between the City Manager or his/her
designee, on behalf of City and the Executive Director of Operator.
Section 7.11. Entire Agreement, Waivers and Amendments. The Agreement is
executed in duplicate originals, each of which is deemed to be an original. This
Agreement, together with all attachments and exhibits hereto, constitutes the entire
understanding and agreement of the parties. This Agreement integrates all of the terms
and conditions mentioned herein or incidental hereto, and supersedes all negotiations or
previous agreements between the parties with respect to all or any part of the subject
matter hereof. Any waiver or modification of any provision of this Agreement must be in
writing and signed by the party to be charged. This Agreement may be amended or
modified only by written agreement signed by both parties, and failure on the part of either
party to enforce any provision of this Agreement shall not be construed as a waiver of the
right to compel performance of such provision or provisions.
This Agreement constitutes the entire agreement between the parties. Any prior
representations, promises, or agreement, written or oral, by whomsoever made, are
superseded by the terms and conditions set forth herein. Any purported term or condition
not specified herein shall be deemed of no force or effect. The application for funding
submitted by Operator to City and Schedule B annexed hereto are part of this Agreement.
Acceptance by the City of this Agreement is evidenced by the signature of its City
Manager.
IN WITNESS WHEREOF, the Operator has entered into this Agreement as of the
day and year first above written and has hereunto duly executed this document the
day of , 20
CITY OF PALM DESERT: OPERATOR:
Municipal Corporation ,
A for -profit organization
John M. Wohlmuth, City Manager (Name), Executive Director
(Signature to be notarized) (Signature to be notarized)
ATTEST: APPROVED AS TO FORM:
Rachelle D. Klassen, City Clerk David J. Erwin, City Attorney
GArda\Heather Buck\Child Care\Staff ReporMCCR-Agreement BDLC.doc 10
72500.00001 \7382181.1
DRAFT 4/12/12
Contract No. c31780
SCHEDULE B
IMPROVEMENTS AND ESTIMATED COSTS
• Install new fire alarm system to comply with current Building and Fire Codes:
$10,000
• Plumbing repairs to make fixtures operational: $1,000
• Remove acoustic (popcorn) ceiling: $5,920
Acoustic ceiling has tested for negative for asbestos.
• Wall repairs and painting of walls and ceilings: $8,500
Building is in need of new paint to improve appearance.
• Repair/replace broken cabinets and tops: $1,900
• Replace inefficient T12 lamps with new energy efficient fixtures and mount to
ceiling: $3,700
• Level and install new flooring: $11,000
• Repair existing playground equipment and replenish required soft surface (wood
chips): $15,000
New equipment is needed, but not a top priority. Cost for new equipment is
estimated at $48,000
• Outdoor Drinking Fountain and Chiller — replace broken unit: $2,000
• Install new shade structure — one is required: $12,000
A second shade structure is desired, but not a top priority. Estimated cost for
second shade structure is $12,000.
• Repair and install new safety fencing: $675
GArda\Heather Buck\Child Care\Staff ReporMCCR-Agreement BDLC.doc 12
72500.00001\7382181.1
DRAFT 4/12/12
t
k
As
Contract No. c31780
SCHEDULE A
FACILITY
Bermuda Dunes Learning Center (Palm Desert), childcare facility located at 45900
Portola Avenue, Palm Desert, California.
Address 45900 Portola Ave
Palm Desert, CA 9226
atr��,are Fred Warrog D 44fi A,w
Get Google Maps on your phone j
ivwN—d"GMAPS"+-466453 J
"OI A- Fred VVNra Or it7h Ave,.:d
C0012 Google-
G:\rda\Heather Buck\Child Care\Staff ReporMCCR-Agreement BDLC.doc 11
72500.00001 \7382181.1
DRAFT 4/12/12