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HomeMy WebLinkAboutC25-302 Eagle River Valley ChildcareAGREEMENT FOR SERVICES BETWEEN EAGLE COUNTY, COLORADO AND EAGLE RIVER VALLEY CHILDCARE THIS AGREEMENT (“Agreement”) is effective as of ______________by and between Eagle River Valley Childcare, a Colorado nonprofit corporation (hereinafter “ERVC”), Vail Valley Foundation, a Colorado nonprofit corporation (hereinafter “VVF”) and Eagle County, Colorado, a body corporate and politic (hereinafter “County”). ERVC, VVF and the County may hereinafter be referred to collectively as the “Parties.” RECITALS WHEREAS, VVF established ERVC in 2022 for the purpose of raising funds and building an early childhood education and development center in Avon, Colorado; and WHEREAS, ERVC intends to build an approximately 13,500 square foot facility (the “Facility”) in Avon, Colorado, which will be utilized as a licensed early childhood care and education center (the “Childcare Center”) with approximately 165 childcare spots for children aged 0-5 years of age in Eagle County, with year-round child care operations for fifty (50) years subject to a separate land lease agreement by and between the Town of Avon and ERVC (the “Land Lease”); and WHEREAS, the construction of the Facility is hereinafter referred to as the “Project” and the operation of the childcare program within the Facility is hereinafter referred to as the “Services” as more fully described below; and WHEREAS, ERVC and the Town of Avon have contracted Access Early Education Foundation, a licensed, qualified, high quality, third-party childcare operator established and authorized to operate childcare centers in the state of Colorado, hereinafter referred to as “Operator”, to operate the Childcare Center; and WHEREAS, to support the Project, the Town of Avon executed the Land Lease to provide the land for the Facility, but the Project requires additional partnership and funding; and WHEREAS, the Project will serve the important public purpose of supporting the local workforce and quality of life in Eagle County by providing education to Eagle County children and child care coverage for the children’s parents and guardians, in line with Eagle County’s Strategic Goal of increasing capacity in licensed child care programs within Eagle County; and WHEREAS, with the passage of Ballot Issue 1A on November 8, 2022, Eagle County voters approved a certain lodging excise tax (“Lodging Tax”) to provide funding to support additional childcare programs in Eagle County; Docusign Envelope ID: 6E065295-F861-4663-96B2-22A603C756AF 7/8/2025 2 WHEREAS, County wishes to support the Project by contributing $1,000,000 in Lodging Tax funding for ERVC’s construction of the Project and County wishes to engage ERVC, beyond completion of the Project, to perform certain childcare services in the Facility as set forth in Exhibit A; WHEREAS, the Parties acknowledge and agree that the construction of the Project and the Services will be treated as two separate items specific to the funding support being provide by County to ERVC; and WHEREAS, the Parties agree that the Project fulfills the valid public purpose of increasing access to early childhood education, which purpose is in line with the County’s strategic goals and the will of Eagle County voters as reflected in the passage of Ballot Issue 1A and which purpose is the reason the County is providing the $1,000,000 in financial support; and WHEREAS, VVF is willing to guarantee certain performance obligations of ERVC as set forth herein; and WHEREAS, the Parties acknowledge and agree that the construction of the Project promotes the health, safety and welfare of the people of Eagle County and are services that could otherwise be performed by County directly; and WHEREAS, VVF, ERVC, and the Operator are authorized to do business in the State of Colorado and have the time, skill, expertise, and experience necessary to provide the Services as defined below in paragraph 1 hereof; and WHEREAS, this Agreement shall govern the relationship between ERVC and County in connection with the construction of the Project and related Services. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the following promises ERVC and County agree as follows: 1. Project and Services or Work. ERVC agrees to diligently provide all services, labor, personnel and materials necessary to perform and complete the Project and provide the Services or work described in Exhibit A, which is attached hereto and incorporated herein by reference. As set forth in Paragraph 15 herein and as an inducement for the County to provide compensation as set forth in Paragraph 5 of this Agreement, VVF has agreed to guarantee certain of ERVC’s obligations, but only those obligations identified herein as “Guaranteed Obligations.” a. In exchange for the financial support outlined here, County requires ERVC to satisfactorily complete the Project and furnish the Services in accordance with the schedule established in Exhibit A. Completion of the Project shall mean the date upon which substantial completion of construction is completed and ERVC receives its Certificate of Occupancy for the Facility. Docusign Envelope ID: 6E065295-F861-4663-96B2-22A603C756AF 3 b. In the event of any conflict or inconsistency between the terms and conditions set forth in Exhibit A and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. 2. County’s Representative. The Human Services Department’s designee shall be ERVC’s contact with respect to this Agreement, completion of the Project and performance of the Services. 3. Term of the Agreement. This Agreement shall commence upon the date first written above, and subject to the provisions of paragraph 11 hereof, shall continue in full force and effect through completion of the Services based on the schedule set forth in Exhibit A. 4. Extension or Modification. Any amendments or modifications shall be in writing signed by both parties. No additional services or work performed by ERVC shall be the basis for additional compensation unless and until ERVC has obtained written authorization and acknowledgement by County for such additional services in accordance with County’s internal policies. Accordingly, no course of conduct or dealings between the parties, nor verbal change orders, express or implied acceptance of alterations or additions to the Services, and no claim that County has been unjustly enriched by any additional services, whether or not there is in fact any such unjust enrichment, shall be the basis of any increase in the compensation payable hereunder. In the event that written authorization and acknowledgment by County for such additional services is not timely executed and issued in strict accordance with this Agreement, ERVC’s rights with respect to such additional services shall be deemed waived and such failure shall result in non-payment for such additional services or work performed. 5. Compensation. a. In consideration of ERVC’s completion of the Project and promise to perform the Services as set forth in Exhibit A, the County shall contribute one million dollars ($1,000,000) to fund the Project. Payment will be made in a lump sum, by wire transfer or check on or before August 31, 2025. b. The parties acknowledge that the real property upon which the Facility will be built is owned by the Town of Avon and is being leased to ERVC pursuant to the Land Lease. In the event the Town of Avon terminates the Land Lease prior to the commencement of construction of the Facility, or in the event that ERVC otherwise does not have the right to or fails to complete the Project by September 1, 2027, ERVC shall immediately refund to County any and all funds paid to ERVC by County and thereafter County shall have the right to immediately terminate this Agreement. VVF expressly guarantees ERVC’s obligations to either complete the Project by September 1, 2027 or refund to the County all funds paid to ERVC by the County if the Project is not completed as set forth herein. c. If, at any time during the Term of this Agreement, County reasonably determines that any payment made by County to ERVC was improper because the Project or Services for which payment was made were not performed as set forth in this Agreement, then County shall provide ERVC in writing a description of what ERVC has failed to perform and upon ERVC’s receipt of such written notice from County, ERVC shall be allowed a fourteen (14) day period to cure such nonperformance of the Project or Services. Should ERVC fail to cure such nonperformance within the fourteen (14) day cure period, ERVC Docusign Envelope ID: 6E065295-F861-4663-96B2-22A603C756AF 4 shall forthwith return any such unexpended payment(s) to County commensurate with the value associated with the Services not performed by ERVC. d. County will not withhold any taxes from monies paid to the ERVC hereunder and ERVC agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. e. Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement after, nor shall any payments be made to ERVC in respect of any period after December 31 of any year, without an appropriation therefor by County in accordance with a budget adopted by the Board of County Commissioners in compliance with 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). The County acknowledges that ERVC is working to expand affordable and accessible childcare across the Eagle River Valley and may, separate from and in addition to the Project and Services, move forward with childcare projects outside of Avon and may approach the County for additional support and or funding for such additional childcare project(s). 6. Insurance. ERVC represents and warrants that it will provide and maintain at ERVC’s sole cost and expense, all insurance coverage appropriate for the Project and the completed Facility during and after the construction process as well as maintain appropriate insurance to cover the Services once the Facility is operational and ERVC shall obligate its Operator to carry and maintain at all times all appropriate insurance for the Services, its childcare operations, and staff, including but not limited to workers compensation, commercial general liability and auto insurance for the operation of the Childcare Center. Insurance obligations of ERVC shall survive the termination or expiration of this Agreement. 7. Indemnification. ERVC and VVF shall indemnify and hold harmless County, and any of its officers, agents and employees against any losses, claims, damages or liabilities for which County may become subject to insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement, or are based upon any performance or nonperformance by ERVC or any of its subcontractors hereunder; and ERVC or VVF shall reimburse County for reasonable attorney fees and costs, legal and other expenses incurred by County in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims by third parties against the County to the extent that County is liable to such third party for such claims without regard to the involvement of the ERVC or VVF. This paragraph shall survive expiration or termination hereof. 8. Ownership of Documents. All documents (including electronic files) and materials obtained during, purchased or prepared in the performance of the Project shall remain the property of ERVC. 9. Notice. Any notice required by this Agreement shall be deemed properly delivered when (i) personally delivered, or (ii) when mailed in the United States mail, first class postage prepaid, or (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below, or (iv) when transmitted via e-mail with confirmation of receipt. Either Docusign Envelope ID: 6E065295-F861-4663-96B2-22A603C756AF 5 party may change its address for purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. COUNTY: Eagle County, Colorado Attention: Megan Burch 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8815 E-mail: megan.burch@eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 E-Mail: atty@eaglecounty.us ERVC: Mike Imhof ERVC Po Box 6550 Avon, CO 81620 Telephone: 970-748-5917 E-mail: mimhof@vvf.org With a copy to: Mike Imhof Vail Valley Foundation PO Box 6550 Avon, CO 81620 Telephone: 970-748-5917 E-mail: mimhof@vvf.org 11. Termination. County may terminate this Agreement, in whole or in part, per the terms and conditions outlined in Paragraph 5 above. Docusign Envelope ID: 6E065295-F861-4663-96B2-22A603C756AF 6 12. Venue, Jurisdiction and Applicable Law. Any and all claims, disputes or controversies related to this Agreement, or breach thereof, shall be litigated in the District Court for Eagle County, Colorado, which shall be the sole and exclusive forum for such litigation. This Agreement shall be construed and interpreted under and shall be governed by the laws of the State of Colorado. 13. Execution by Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The parties approve the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic signatures shall be permitted to bind the parties to this Agreement: (i) Electronic or facsimile delivery of a fully executed copy of the signature page; (ii) the image of the signature of an authorized signer inserted onto PDF format documents. All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. 24-71.3-101 to 121. 14. Other Contract Requirements and ERVC Representations. a. ERVC has familiarized itself with the nature and extent of the Project and the Services and will adhere to all local conditions, federal, state and local laws, ordinances, rules and regulations that in any manner affect cost, progress, or performance of the Project and the Services. . b. ERVC shall contract a qualified, licensed third-party Childcare Operator to provide the Services upon completion of the Project. County acknowledges and agrees that the selection of the Childcare Operator, now and in the future, shall be at the sole unfettered discretion of ERVC and the Town of Avon. ERVC will comply with, and cause its Operator to comply with all local conditions, federal, state and local laws, ordinances, rules and regulations that in any manner affect performance of the Services and will perform, or cause its Operator to perform, any examinations, investigations, and tests as ERVC deems necessary for the performance of the Services. c. To the extent possible, ERVC has given County written notice of all conflicts, errors, or discrepancies. d. ERVC or its Operator shall be responsible for the completeness and accuracy of the Services and shall correct, at its sole expense, all significant errors and omissions in performance of the Services. ERVC or its Operator agrees to perform the Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to ERVCs performing similar services. ERVC represents and warrants that it will contract and oversee a licensed and qualified third-party Childcare Operator that has the expertise and personnel necessary to properly perform the Services and shall comply with the highest standards of customer service to the public. ERVC agrees to provide appropriate supervision of the Operator. e. ERVC agrees to work in an expeditious manner, within the sound exercise of its judgment and professional standards, in the performance of this Agreement. Time is of the essence with respect to this Agreement. Docusign Envelope ID: 6E065295-F861-4663-96B2-22A603C756AF 7 f. In completing the Project and performing the Services under this Agreement, ERVC will be treated as an independent contractor and not as an employee of County. Nothing contained in this Agreement shall be deemed to create a relationship of employer-employee, master-servant, partnership, joint venture or any other relationship between County and ERVC except that of independent contractor. ERVC and VVF shall have no authority to bind County. g. ERVC represents and warrants that at all times in the performance of the Services, ERVC shall comply with any and all applicable laws, codes, rules and regulations. h. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements or understanding between the parties with respect thereto. i. Subcontractors and Assignment. ERVC may independently engage an Operator to perform some or all of the Services as outlined herein in Exhibit A on its behalf. Notwithstanding the foregoing, ERVC shall remain responsible for performance of the Services as set forth herein, and VVF and ERVC shall both remain responsible for the performance of the Guaranteed Obligations as set forth herein. ERVC shall not assign any portion of this Agreement to a third party without the prior written consent of County. Any attempt to assign this Agreement without such consent shall be void. j. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors in interest. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties, and not to any third party. k. No failure or delay by either party in the exercise of any right hereunder shall constitute a waiver thereof. No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach. l. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. m. The signatories to this Agreement aver to their knowledge no employee of the County has any personal or beneficial interest whatsoever in the Services or Property described in this Agreement. ERVC has no beneficial interest, direct or indirect, that would conflict in any manner or degree with the performance of the Services and ERVC shall not employ any person having such known interests. 15. Guaranty. The parties acknowledge and agree that County’s payment obligation hereunder is conditioned upon VVF’s guaranteeing ERVC’s performance and indemnification obligations set forth in Paragraphs 5(b) and 7 of this Agreement, and Paragraphs A.1, A.2, A.3, B.4 and B.5 of Exhibit A (the “Guaranteed Obligations”). VVF unconditionally and irrevocably guarantees the full performance by ERVC of, and agrees to perform in the event of ERVC’s default, all of ERVC’s Guaranteed Obligations. [REST OF PAGE INTENTIONALLY LEFT BLANK] Docusign Envelope ID: 6E065295-F861-4663-96B2-22A603C756AF 8 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS By: ______________________________ Jeanne McQueeney, Chair Attest: By: _____________________________ Becky Close, Clerk to the Board EAGLE RIVER VALLEY CHILDCARE By: _____________________________________ Print Name: ______________________________ Title: __________________________________ VAIL VALLEY FOUNDATION, as GUARANTOR By: ____________________________________ Print Name______________________________ Title: ___________________________________ Docusign Envelope ID: 6E065295-F861-4663-96B2-22A603C756AF Mike Imhof President and CEO President and CEO Mike Imhof 9 EXHIBIT A SCOPE OF PROJECT AND SERVICES A. In connection with undertaking and completion of the Project, the ERVC will adhere to the following: 1. Construction in accordance with Land Lease. ERVC shall cause the construction of the Facility, which upon completion, shall be solely used per the permitted use terms and conditions agreed to by and between Town of Avon and ERVC as outlined in the Land Lease. The Facility shall be used primarily as a licensed early childhood education facility serving children 0-5 years of age, with capacity for at least one hundred and sixty-five (165) children, and may be used for other lawful complimentary uses such as after school care, week-end child care, parent education classes, community meetings, and youth gathering space provided that such complimentary uses do not detract from the primary early childhood education facility use. The Facility will be approximately 13,500 square feet, will be utilized as described above and will provide high-quality early care, learning, and development for infants and children through five years of age, with at least one- quarter of the spaces available designated for children ages 23 months or less. 2. Construction of the Project. ERVC shall be responsible for causing the completion of all phases of design and construction of the Facility in accordance with standards established by the Town of Avon. As of the date of the Agreement, the Parties recognize that ERVC has entered into a construction agreement with RA Nelson to perform all construction services for the Facility for ERVC. 3. Completion of the Project. Groundbreaking on the Facility is scheduled to occur on Monday, June 23, 2025, with completion of the Facility estimated to be by October 2026. ERVC commits to keep the County updated as to any significant anticipated or actual construction delays. Subject to what ERVC can control per its construction agreement with RA Nelson, ERVC shall cause the Facility to be open and operated as a year-round licensed child care center before December 31, 2026, with year-round childcare operations to continue per the term agreed to in the Land Lease. Should the Project not be complete by September 1, 2027, the County shall have the right to require a refund from ERVC or VVF as set forth in Paragraph 5(b) of the Agreement. 4. Compliance with the law. ERVC and its Operator shall comply with all applicable federal, state and local rules, regulations, licensure requirements and guidelines concerning the Project. B. In connection with undertaking and completion of the Services, ERVC will adhere to the following: Docusign Envelope ID: 6E065295-F861-4663-96B2-22A603C756AF 10 1. Licensure. Before opening the Facility for business, ERVC shall acquire, or require that ERVC’s Operator of the Childcare Center within the Facility acquire, all necessary licenses to utilize the Facility as a licensed childcare center for the term of this Agreement. 2. Minimum Standards. For the first year of the Project, ERVC shall or ERVC shall require its Operator to meet the following minimum standards: • Participate in quality improvement coaching regularly, with a minimum of one pre and post measurement per evidenced-based activity or assessment annually. An activity or assessment will be determined jointly with a Colorado credentialed coach, and will include things such as: CLASS, ERS-3, Lena Grow, Circle of Security. Staff will make reasonable efforts to participate in evidenced-based professional development trainings annually in addition to coaching. Coaching agencies will verify involvement and participation; • Have an active fiscal agreement with Eagle County’s Colorado Child Care Assistance Program (CCCAP) within the first three months of operation. If the Facility’s program does not charge families any tuition or fees, a CCCAP fiscal agreement may not be required; • If it is available, participate in the State of Colorado’s Universal Preschool Program, including use of associated administrative systems and collaboration with the identified Local Coordinating Organization, for all age eligible children (children turning 4 by October 1st of each year) if applicable; and • Subject to the availability and rules and regulations of Colorado Shines for new childcare centers, achieve a Colorado Shines level 2 (minimum) within the first twelve months of operation. ERVC and its Operator shall continue to meet these minimum standards (or analogous standards in accordance with any amended or evolving laws, regulations or guidelines) each year through the expiration of the Agreement. 3. Reporting. ERVC shall require its Operator to update the provider sheet that it provides to the County’s Department of Human Services, on the then-current schedule developed by Eagle County Department of Human Services for childcare programs receiving county funding. 4. Operation of a Childcare Program. ERVC represents and warrants, as follows: • That ERVC will retain ownership of the Facility, that ERVC shall be the contracting party in all contracts concerning the construction of the Project, and that all funds paid to ERVC pursuant to this Agreement shall be used directly to pay for construction expenses for the Project. • Any childcare program operating in the Facility shall be operated as a licensed childcare center in accordance with applicable federal, state, and local laws and regulations and the Minimum Standards set forth herein for a period of at least twelve (12) years from the date the Project is complete; Docusign Envelope ID: 6E065295-F861-4663-96B2-22A603C756AF 11 • Upon opening, the Facility will actively serve infants, toddlers, and/or preschoolers, including with at least 8 infant slots and 8 toddler slots and will maintain the ratios set forth in Paragraph A.1 of this Exhibit A; and 5. Eagle County Employee Childcare Slots. Upon completion of the Project, ERVC will provide County twelve (12) childcare slots at the Facility exclusively for children/dependents of employees of the Eagle County Government each year. ERVC shall have the obligation to provide Eagle County Government employees with the right of first refusal to these slots each year for a period of twelve (12) years from the date the Project is completed in accordance with the terms of this Agreement, on the following terms and conditions: • The designated 12 spots are available to local Eagle County employees only. • The County, for its authorized and active full-time employees, will receive the following: o A first right of refusal for 12 childcare spots (“County Spots”) for twelve (12) years after the Project is completed and the childcare center is in operation. Should County not need all 12 County Spots in any given year, County will communicate in writing to ERVC that it wishes to relinquish to ERVC certain County Spot(s). If the County Spot is a type of childcare spot that is fully sold out at the Project, ERVC may reallocate such relinquished County Spot(s) to another local business or to the childcare facility for use by the general public. County will continue to have a right of first refusal on all unrelinquished County Spots. Once the relinquished County Spot(s), or any other spot becomes available in the future, ERVC shall notify County of that fact and County shall have a right of first refusal to said spot(s), so that County has a right of first refusal for up to 12 total spots in any given year during the term of this Agreement. Each year, the reserved childcare spots shall be available exclusively to County for a period of twenty-one (21) days before the spots are offered to a local Eagle County business or the general public. o Employees of the County that have secured spots will be responsible for paying the tuition costs unless the County elects to cover tuition costs or a portion of tuition costs for its employee(s). o Employees of the County that have secured spots will receive $10 off the published daily tuition rates. ERVC estimates that initial tuition costs will range between $65 per day and $85 per day depending on the age of the child. Tuition rates are subject to increases in the future. o Employees of the County that have secured spots will not have to pay the annual enrollment application fee. Annual enrollment application fees are approximately $100 per child. o Employees of the County that can show economic need will be eligible to apply for financial assistance from the VVF’s Tuition Assistance Fund for the Avon Early Childhood Education and Development Center. • Annually between November 15 and December 15 County will be required to confirm in writing their quantity of spots for the upcoming calendar year. Docusign Envelope ID: 6E065295-F861-4663-96B2-22A603C756AF 12 • ERVC may provide to County a right of first refusal for childcare spots beyond the term of the Agreement. Provision of such childcare spots may be provided pursuant to a written amendment to the Agreement. Docusign Envelope ID: 6E065295-F861-4663-96B2-22A603C756AF