Resolution No. 2017-22 Planning Agreement with Charter Schools USA Inc. for Aventura Charter High School - April 20, 2017 RESOLUTION NO. 2017-22
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
AVENTURA, FLORIDA AUTHORIZING THE CITY MANAGER TO
EXECUTE AND OTHERWISE ENTER INTO THAT CERTAIN PLANNING
AGREEMENT FOR THE AVENTURA CHARTER HIGH SCHOOL
BETWEEN CHARTER SCHOOLS USA, INC. AND THE CITY OF
AVENTURA; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS
NECESSARY TO CARRY OUT THE AIMS OF THIS RESOLUTION; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, in accordance with City Code Section 2-256, the City Commission
hereby finds and determines that in light of CSUSA's proven record of excellent
performance with the City and the applicable time constraints for an expeditious
opening of the Charter High School, it is in the City's best interests to negotiate the
Planning Agreement with CSUSA instead of issuing an RFP for such purpose.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, THAT:
Section 1. The City Manager is authorized to execute and otherwise enter into
that certain Planning Agreement for the Aventura Charter High School between Charter
Schools USA, Inc. and the City of Aventura attached hereto.
Section 2. The City Manager is authorized to do all things necessary to carry
out the aims of this Resolution.
Section 3. This Resolution shall become effective immediately upon its
adoption.
The foregoing Resolution was offered by Commissioner Weinberg, who moved
its adoption. The motion was seconded by Commissioner Dr. Marks, and upon being
put to a vote, the vote was as follows:
Commissioner Denise Landman Absent
Commissioner Dr. Linda Marks Yes
Commissioner Gladys Mezrahi Yes
Commissioner Robert Shelley Yes
Commissioner Howard Weinberg Yes
Vice Mayor Marc Narotsky Yes
Mayor Enid Weisman Yes
City of Aventura Resolution No. 2017-22
PASSED AND ADOPTED this 20th day of April, 2017.
ENID WEISMAN, MAYOR
110\-
06 5%t
ATTEST:
_A`�i
ELLISA L. HORVA4 C
CITY CLERK
APPROVED AS TO LEGAL SUFFICIENCY:
-1( k)1
CITY ATTORNEY
Page 2 of 2
PLANNING AGREEMENT
between
CHARTER SCHOOLS USA, INC.,
and
CITY OF AVENTURA
for the
AVENTURA CHARTER HIGH SCHOOL
TABLE OF CONTENTS
1. Recitals 2
2. Definitions 2
3. Term 3
4. Charter School 3
5. Services to be provided by CSUSA 4
6. Responsibilities of the City 8
7. Cooperation 9
8. Additional Mutual Obligations 9
9. Planning Fee 9
10. Insurance 9
11. Indemnification 10
12. Default 10
13. Termination of this Agreement 11
14. Transfer of Functions Upon Termination 13
15. Entire Agreement 14
16. Assignments 14
17. Further Assurances 14
18. Relationship of Parties 14
19. Interpretations 14
20. Time of the Essence 14
21. Binding Effect 15
22. Notices 15
23. Headings 16
24. Severability 16
25. Waivers 16
26. Outside Business 16
27. Third Parties 16
28. Jurisdiction and Venue 16
29. Enforcement Costs 17
30. Remedies Cumulative 17
31. Subcontracts 17
32. Obtainment of Charter 17
4 33. Counterparts 18
34. Governing Law 18
4 35. Proprietary Information 18
36. Sale or Transfer of interest in CSUSA 18
37. Audits 19
38. Police\Regulatory Powers 18
PLANNING AGREEMENT FOR THE AVENTURA
CHARTER HIGH SCHOOL
T�IIS PLANNING AGREEMENT (the "Agreement") is made and entered into as of
the old day of , 2017, by and among CHARTER SCHOOLS USA, INC.
(CSUSA) , a Delawafe corporation; and CITY OF AVENTURA("CITY"), a Florida municipal
corporation.
WITNESSETH:
WHEREAS, CSUSA and the CITY currently have an Administrative and Educational
Services Agreement for the Aventura City of Excellence School which is a K-8 charter
school located at 3333 N. E. 188th Street, Aventura, Florida.
WHEREAS, the City Commission of the City of Aventura wishes to provide a
Charter High School as another educational choice for the children of Aventura.
WHEREAS, it is in the best interests of the CITY to enter into a Planning Agreement
(hereinafter referred to as "Agreement") with CSUSA, to assist in the acquisition of the
Charter and to plan, design and develop the proposed Charter High School; now,
therefore,
IN CONSIDERATION of the mutual covenants and undertakings and other good
and valuable consideration the receipt and sufficiency of which is hereby acknowledged,
the parties do mutually covenant and agree as follows:
1. Recitals. The recitals set forth above are true and correct and are
incorporated herein by reference. All exhibits to this Agreement are hereby deemed to be
a part hereof.
2. Definitions. Wherever used in this Agreement, the following terms have
the meanings indicated which are applicable to both the singular and plural thereof:
2.1 Agreement - The written agreement between CITY and CSUSA
covering the Services to be performed.
2.2 CITY - The City of Aventura with whom CSUSA has entered into the
Agreement and for whom the Services are to be provided.
2.3 City Manager-The City Manager or his designee (hereinafter referred
to as " City Manager") of the City of Aventura, who has the authority on behalf of the CITY to
grant or deny approvals and perform the CITY's responsibilities required by this Agreement.
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2.4 CSUSA - Where CSUSA is indicated as the responsible party to
perform an obligation pursuant to this Agreement,
2.5 Effective Date of the Agreement - The date indicated in the
Agreement on which it becomes effective,
2.6 Services — Those activities which must be performed prior to the
actual commencement of the operation of the Charter High School as set forth in this
Agreement in order to insure that the Charter High School opens in a timely manner for the
2019-2020 school year, including but not limited to, charter school application coordination,
development and submittal; coordination, development and approval of the school's charter;
operating budget development, building design review and approval; curriculum
development; staffing; marketing and recruitment; obtaining furniture, fixtures and
equipment; and identification, coordination and contract development for necessary
professional and/or third party services.
2.7 Management Agreement — An agreement that the CITY intends to
develop, negotiate and execute with CSUSA that will provide for those services necessary
to develop, organize, manage, staff, operate and maintain the Charter High School upon
the termination of this Agreement. The parties intend that the Management Agreement be
executed prior to submission of the charter application with an effective date of July 1,
2019, provided however, the foregoing shall not obligate the CITY to enter into a
Management Agreement with CSUSA, provided further, the CITY's obligation shall be to
negotiate in good faith with CSUSA to enter into the Management Agreement on or before
July 1, 2019.
2.8 Written Amendment-A written amendment of the Agreement signed
by CITY and CSUSA on or after the Effective Date of the Agreement.
3. Term. The CITY agrees to contract with CSUSA, and CSUSA agrees to be
contracted with, for the purpose of providing the Services, including assisting in the
acquisition of the Charter and organizing, planning and developing the Charter High School
in accordance with the terms of this Agreement. The term of this Agreement shall
commence as of the Effective Date of this Agreement and shall terminate on June 30,
2019, unless terminated earlier pursuant to the provisions of this Agreement, subject to any
further obligations (including payment obligations) of the parties which survive termination.
4. Charter School. The Charter School shall be a high school with capacity for
800 students commencing in the 2019-2020 school year, starting with 9th and 10th grade
only. The upper grades will be added in the two following years.
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5. Services to be provided by CSUSA. CSUSA's fees hereunder shall
compensate it for the performance of the Services, including its responsibilities for the
assisting in the acquisition of the Charter, and for the performance of all planning, set-up,
design and development activities of or for the Charter High School prior to the actual
commencement of the operations of the Charter High School, which are necessary during
the term of this Agreement to have a fully operational Charter School for the 2019-2020
school year. Responsibilities of CSUSA shall include, but are not limited to, the following
areas:
5.1 Charter School Application. Subject to review and approval by the
City Manager, CSUSA shall assist in the coordination and development of the application
document in connection with the Charter High School's obtainment of the Charter (the
"Charter Application"), assist in all activities related to the submission of the Charter
Application to The School Board of Miami-Dade County, Florida (the "Chartering Entity')
on a timely basis and negotiate the Charter's approval with such Chartering Entity. The
Charter shall be applied for and issued in the name of the CITY. The application shall be
submitted to the Chartering Entity by August 1, 2017.
5.2 Planning and Development. CSUSA shall perform the following
services associated with the planning and development of the Charter High School.
5.2.1 Facilities Planning and Development. CSUSA shall advise
and make recommendations to the CITY on the planning and development of the Facility to
ensure that the design and function meet the specifications necessary for CSUSA's
educational program. CSUSA shall review and approve, on a timely basis, the preliminary
and final design documents. In addition, CSUSA shall identify in writing all furniture, fixtures
and equipment (the "FF&E") necessary for the Charter High School, and shall be
responsible for obtaining, ordering, purchasing and installing the FF&E.
5.2.2 Operations Planning and Development. With input and
involvement from the CITY and substantially in compliance with the Charter Application
and the Charter, CSUSA shall (a) respond to all requirements of the Charter High School
process; (b) develop and refine the curriculum and Charter High School plan in compliance
with all applicable federal, state and local laws, the policies of the Chartering Entity, the
requirements of the CITY and the Charter of the Charter High School; ((c) interview and
hire all other Charter High School administration, teaching and support staff; (d) develop
and implement the Charter High School's staff and student recruiting and marketing plans;
(e) organize and conduct parent orientations; (f) prepare, manage, supervise and
implement the Charter High School's opening; and (g) conduct all other activities necessary
to have a fully operational Charter High School for the 2019-2020 school year.
5.2.3 Management Information Systems. CSUSA shall coordinate
in designing, ordering, purchasing, installing and implementing an MIS system consistent
with the Charter High School's purpose and goals. This shall also include business
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applications that meet, on an ongoing basis, any and all Federal, State, County, CITY, or
Chartering Entity reporting mandates, applicable for the Charter High School or the CITY.
At a minimum these business applications shall include: Cash Receipts, Records
Management, Payroll/Personnel, General Ledger, Purchasing, Accounts Payable,
Accounts Receivable/Billing, Fixed Assets, Admissions, Scheduling, Registration, Records,
and Reporting. The City Manager or his designee, with reasonable notice to CSUSA and
except as provided for in Chapter 119, F.S., shall have full and unlimited access to the MIS
system with assistance from a representative of CSUSA. Upon termination of this
Agreement, all hardware, software, business applications (including password and
configuration information) and other intellectual property purchased by the CITY shall
remain the property of the CITY. The MIS system shall be and remain the property of the
CITY, except as proprietary to CSUSA as set forth in this Agreement.
5.2.4 Personnel Administration. CSUSA shall recruit and employ
sufficient qualified personnel to operate the Charter High School (as is necessary and
appropriate during the Term of this Agreement), including without limitation, administrators,
teachers, clerical, cafeteria, and other staff to enable CSUSA to operate the Charter High
School in conformance with the Charter Application and the Charter. CSUSA shall also
recruit qualified personnel for the Charter High School Principal. CSUSA shall consult with
the City Manager during the hiring process of any principal for the Charter School.The
City Manager shall have the right to disapprove of the hiring of the any candidate for
principal and in such event, CSUSA shall not hire said candidate for the position of
principal at the Charter High School. The principal shall be hired by February 2019.The
parties agree that the Charter High School Principal shall be accountable to CSUSA for the
day to day operations of the Charter High School and for carrying out the mission of the
Charter High School, Charter Application and the Charter. CSUSA shall provide such other
personnel as CSUSA, in its sole judgment, determines is necessary to properly operate the
Charter High School. CSUSA shall determine, in its sole discretion, the benefits that will be
provided to such personnel and shall administer the provision of such benefits. Any and all
employment agreements shall provide for the immediate assignably to the CITY at its
option in the event that this Agreement is terminated as provided herein.
5.2.5 Payroll Administration. CSUSA shall prepare, maintain,
administer, and report all payroll of CSUSA's employees hired to work at the Charter High
School, including, without limitation, processing and issuing all checks, maintaining all
reports and payroll records and filing all necessary forms and returns, including worker's
compensation compliance, unemployment insurance compliance, withholding and social
security taxes and all tax and other forms relating to employment as may be required by
any federal, state, Chartering Entity or municipal authority during the term of this
Agreement. All payroll and other financial or operational records for the Charter High
School shall be segregated and separated from all other CSUSA payroll records and shall
be reported in a manner allowing the payroll costs to be traced directly to the financial
expenditures of the Charter High School. CSUSA shall deposit such payroll taxes as may
be required by the Internal Revenue Service for the payment of payroll taxes for the
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employees referenced herein. All penalties incurred by reason of late filing, failure to file or
failure to pay shall be borne by CSUSA and shall be the sole obligation and responsibility
of CSUSA.
5.2.6 Books and Supplies. CSUSA shall be responsible for
obtaining, ordering and purchasing the books and supplies to be utilized in or by the
Charter High School.
5.2.7 Furniture, Fixtures and Equipment ("FF&E"). CSUSA shall
be responsible for obtaining, ordering and purchasing the FF&E and all technology
equipment to be utilized in or by the Charter High School.
5.2.8 Public Relations; Fund Raising Activities.
(a) Public Relations. CSUSA shall coordinate, cooperate and
work with the City as to all official public relations for the Charter High School including,
without limitation, community outreach, press releases and media relations. All media
relations initiated by CSUSA, including press releases, shall require the prior written
approval of the City Manager. Press releases shall contain the name of the CITY and its
seal as designated by the City Manager. Where media contact to CSUSA is not initiated by
CSUSA, CSUSA shall notify the City Manager.
(b) Fund Raising Activities. CSUSA shall be responsible for
fund raising activities on behalf of the Charter High School, during the term of this
Agreement, and CSUSA and the CITY shall coordinate and cooperate with such fund
raising efforts.
5.2.9 Contract Administration. CSUSA shall coordinate, negotiate
and administer those contracts for necessary uses or services to be performed or provided
by third parties including cafeteria management services, janitorial services, building
maintenance and transportation, and which must be entered into by the Charter High
School during the term of this Agreement to ensure the efficient and timely opening of the
Charter High School.
5.2.10 Annual Budget. CSUSA shall prepare and submit to the
CITY a detailed annual budget. (The "Charter High School Annual Budget") for the 2019-
2020 school year by December 1, 2018. The budget shall include, as appropriate,the total
number of student stations for the coming academic year, all capital purchase requests,
debt repayments and/or cash loans required, operating revenues and operating
expenditures for the school year.
The Charter High School Annual Budget shall be reviewed and modified, as necessary, by
the City Manager. The parties shall work cooperatively together on any and all budgetary
matters and issues prior to the submission of the proposed budget to the Aventura City
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Commission. The parties agree that it is the intent of this provision that they jointly prepare
and submit a balanced budget and that any and all budgetary issues and matters be
resolved between CSUSA and the City Manager prior to the Aventura City Commission's
review and consideration of same.
5.2.11 Program Outline. CSUSA shall develop a program outline that
includes the curriculum and academic theme for the Charter High School. CSUSA shall
also develop and provide the CITY with a space plan for the Charter High School. The
program and space design will reflect the CITYs desire for a rigorous, college preparatory
school with multiple academy offerings, innovative instructional methods, and a facility
design that contemplates an open, flexible learning environment to facilitate the digital
native learning styles of 21st century students. The school is intended to become the
premier public high school option in the CITY providing the environment for the student to
be fully prepared academically and personally for any college or university challenges.
CSUSA shall explore dual enrollment opportunities with local colleges.
5.2.12 Provision of Liaison Services. CSUSA shall designate a
member of senior management personnel to be the point of contact for the City Manager
for all operational issues.
5.2.13 Coordination with the Chartering Entity. CSUSA shall be
responsible for coordinating any and all activities of the Charter High School with the
requirements of the Chartering Entity and for complying with all reasonable requests of the
Chartering Entity regarding the Charter High School.
5.2.14 Monthly Reports. CSUSA shall submit monthly written
reports detailing the progress and achievements of the prior month's activities to the City
Manager.
5.2.15 Compliance with Applicable Law. CSUSA acknowledges
that the CITY is entering into this Agreement based, in part, on CSUSA's expertise in the
business of planning, designing, developing, organizing, managing, staffing and operating
charter schools in the State of Florida and with the Chartering Entity. CSUSA shall be
responsible for ensuring the timely performance of all activities and responsibilities required
during the term of this Agreement, including the production of documents, in compliance
with all applicable laws, ordinances, rules and regulations, to ensure, insofar as is possible,
that approval of the Charter High School Application is obtained from the Chartering Entity
in 2017, and the approval of the Charter is obtained from the Chartering Entity in 2018,
unless such timeframes are extended by the CITY. Where CSUSA's ability to comply with
this Section is dependent upon the performance of activities or responsibilities by the CITY,
CSUSA shall be responsible for notifying the CITY in a timely manner of the activities or
responsibilities which the CITY must perform and the associated timelines. Upon
attainment of the Charter from the Chartering Entity, CSUSA shall be responsible for
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ensuring that the Charter High School complies with all applicable laws, ordinances, rules
and regulations.
5.2.16 Records Retention; Public Records. CSUSA shall provide,
protect, preserve, and maintain all books, records and related documents of or affecting
the Charter High School that are not proprietary to CSUSA(the"Public Records"), pursuant
to the provisions of Chapter 119, F.S. as amended from time to time. In the event of
termination of this Agreement pursuant to Section 15, CSUSA shall deliver any and all
Public Records in its possession to the CITY within thirty (30) calendar days of such
termination. Further, the Public Records Act Addendum which is attached hereto is hereby
incorporated herein.
5.2.17 Other Activities. CSUSA shall, in a timely manner, perform all
other activities necessary during the term of this Agreement to have a fully operational
Charter High School for the 2019-2020 school year.
6. Responsibilities of the City. The CITY shall be responsible for the following:
6.1 Maintenance of Charter. The CITY shall do, or cause to be done, all
things necessary to ensure that all legal requirements applicable to the CITY, and all such
conditions as may have been imposed on the CITY by the Chartering Entity, are fully
complied with at all times. If the CITY or CSUSA shall at any time receive notice from any
public authority or other person that the Charter High School is or may be in violation of the
Charter, the rules of the Chartering Entity or any provision of any applicable law or
regulation, the party receiving such notice shall immediately notify the other party of the
asserted violation and shall thereafter work diligently together to determine whether such
asserted violation in fact exists, to correct any violation found to exist, and vigorously
contest the asserted violation if the same is found not to exist.
6.2 The Charter High School Special Revenue Fund. The City shall
create a Charter High School Special Revenue Fund (Charter High School Fund) to
account for all revenues and expenditures associated with the Charter High School.
6.3 Funding For Charter High School Costs and Expenses. The CITY
shall provide funds, in amounts substantially in conformance with the agreed upon and City
Commission approved budget and Charter School Application, to cover costs and
expenses associated with the planning and development of the Charter High School, which
costs and expenses shall include, startup funding and FF&E and CSUSA Fees. It is
understood by CSUSA and the CITY, that any and all funds expended by the CITY
pursuant to this Section, including professional services contract fees and other out-of-
pocket costs and expenses, shall be reimbursed to the CITY from Charter High School
revenues and/or startup grants from the State of Florida. The reimbursement schedule
shall be included in the proposed Charter High School Annual Budget. The CITY shall
provide CSUSA with an estimate of any and all funds expected to be expended by the
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CITY pursuant to this Section during the subsequent budget year, that would not be
generally known to CSUSA; such estimate shall be included in the proposed Charter High
School Annual Budget.
6.4. Procedure for Payment. In order to receive funds from the CITY
pursuant to this Section, CSUSA shall prepare and submit monthly financial statements
and invoices to the City Manager, which shall include the fund(s) for which CSUSA is
seeking payment, and all of the Charter High School's actual expenditures, reported on a
modified cash basis of accounting (including but not limited to all capital expenditures). The
City Manager shall direct payment from the Charter High School Fund to CSUSA for all
approved expenditures within fifteen (15) business days of receipt by the CITY of the
monthly financial statement and invoices. CSUSA agrees to provide the CITY, within ten
(10) business days, source documents, supporting schedules, summaries and
explanations as may reasonably requested by the City Manager from time to time. CSUSA
shall immediately reimburse the CITY for any unallowable Charter High School
expenditures as determined by a licensed auditor of the CITY, the Chartering Entity, or any
Department or Division of the State of Florida or Federal Government.
6.5 Other Activities. The CITY shall, in a timely manner, provide all
information and perform all other reasonable activities, in support of CSUSA's efforts , as
necessary during the term of this Agreement to have a fully operational Charter High
School for the 2019-2020 school year.
7. Cooperation. The parties shall, in good faith, share all information received
from the Chartering Entity so as to comply with mutual obligations herein. Any information,
whether written or oral, which is transmitted by the Chartering Entity to the parties shall be
shared between the parties promptly.
8. Additional Mutual Obligations. The parties hereto shall actively and
diligently coordinate all grant writing, community involvement, responsiveness and
response to compliance to all federal, state, and local rules and regulations, and any other
operational activities or functions occasioned by the relationship set forth in this Agreement
in a concerted effort to meet the goals and objectives established in the Charter High
School Application as submitted to or approved by the Chartering Entity.
9. Planning Fee. The CITY shall pay CSUSA the total sum of One Hundred
Seventy Thousand Dollars ($170,000) as a planning fee (the "Fee"), for the performance
by CSUSA of its responsibilities hereunder. Such Fee shall be deemed earned pro-rata to
CSUSA as follows: (a) Twenty Thousand Dollars ($20,000.00) shall be due in a lump sum
payment on the Effective Date of this Agreement; and (b) One Hundred Fifty Thousand
Dollars ($150,000.00) shall be paid, upon the CITY's receipt of an invoice from CSUSA, in
twenty four (24) equal monthly installments of Six Thousand and Two Hundred and Fifty
Dollars ($6,250.00) on the first of every month beginning July 1, 2017 and ending June 1,
2019.
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10. Insurance. CSUSA shall maintain comprehensive general liability insurance
in the amount of One Million ($1,000,000 ) Dollars per occurrence and Two Million
($2,000,000) Dollars in the aggregate for personal injury and property damage, combined
single limit,occurring in connection with the Charter High School. In addition, CSUSA shall
maintain workers compensation and employers liability insurance in the amount of Fifty
Thousand ($50,000) Dollars or the minimum amount required by law, including Chapter
440, Florida Statutes, whichever amount is higher . CSUSA shall provide proof of
insurance to the City of the types and amounts required by this Agreement , the Charter
Application, the Charter or federal, state or local law, during the term of this Agreement,
and shall name the City and City's officers, agents and employees as additional insured
under the general liability insurance coverage policy. The City intends to provide property
insurance coverage for the real property, buildings and contents, which costs shall be
charged to the Charter High School Fund.
11. Indemnification.
11.1 CSUSA agrees to indemnify, defend with counsel (reasonably
acceptable to the CITY) and hold the CITY, and its respective officers, employees, and
agents (the "Indemnified Parties"), harmless from any and all claims, actions, costs,
expenses, damages and liabilities, including reasonable attorney's fees and costs at both
the trial and appellate levels, arising out of, connected with or resulting from (a) the
negligence, intentional wrongful act or misconduct of CSUSA in connection with the
Agreement, (b) CSUSA's breach of this Agreement or law, and/or(c) any failure by CSUSA
to pay its suppliers, vendors or contractors. The duty to indemnify will continue in full force
and effect notwithstanding the expiration or termination of the Agreement with respect to
any claims based on facts or conditions that occurred prior to such expiration or
termination.
11.2 Subject to the provisions and monetary limitations of F.S. 768.28, F.S.,
which shall apply regardless of whether said monetary limitations would otherwise apply in
the absence of this provision, the CITY agrees to indemnify, defend with counsel
(reasonably acceptable to CSUSA) and hold CSUSA, its officers, employees, and agents
(the "CSUSA Indemnified Parties"), harmless from any and all claims, actions, costs,
expenses, damages and liabilities, including reasonable attorney's fees and costs at both
the trial and appellate levels, arising out of, connected with or resulting from (a) the
negligence, intentional wrongful act or misconduct of the CITY in connection with the
Agreement, (b) the CITY's breach of this Agreement or law, and/or (c) any failure by the
CITY to pay its vendors or contractors. The duty to indemnify will continue in full force and
effect notwithstanding the expiration or termination of the Agreement with respect to any
claims based on facts or conditions that occurred prior to such expiration or termination.
11.3 Upon becoming aware of the potential for a claim hereunder,the party
seeking indemnification shall notify the other party of the existence of such claim, demand
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or other action giving rise to a claim for indemnification under this provision (a "Third Party
Claim") and shall give such other party a reasonable opportunity to defend the same at its
own expense and with its own counsel, provided however that the CITY or CSUSA shall at
all times have the right to participate in such defense at its own expense.
11.4 If, within a reasonable amount of time after receipt of notice of a Third
Party Claim, the CITY or CSUSA shall fail to undertake to so defend, the party seeking
indemnification shall have the right, but not the obligation, to defend and to compromise or
settle (exercising reasonable business judgment)the Third Party Claim for the account and
at the risk and expense of the party responsible for indemnification hereunder. Each party
agrees to cooperate and to make available to the other party, such information and
assistance as may be reasonably requested in connection with the defense of a Third Party
Claim.
12. Default. A default shall be deemed to have occurred for certain events or
conditions (each, an "Event of Default"), which include, but are not limited to the following:
12.1 Failure to pay any amount due hereunder within thirty (30) days after
written notice that such amount is due; or
12.2 Failure to remedy a material breach of this Agreement, including, but
not limited to, a default in the due and punctual observance or performance of any
provision contained herein, within thirty (30) days after written notice to the defaulting party;
or
12.3 If CSUSA shall under such law as shall be applicable to it commence
any case or proceeding, or file any petition in bankruptcy, or for reorganization, liquidation
or dissolution, or be adjudicated, insolvent or bankrupt, or shall apply to any tribunal for a
receiver, intervenor, conservator or trustee for itself or for any substantial part of its
property; or if there shall be commenced against it any such action and the same shall
remain un-dismissed; or if by any act it shall indicate its consent to, approval of, or
acquiescence in any such proceeding, or the appointment of any receiver, intervener,
conservator or trustee for it or any substantial part of its property or shall suffer any of the
same to continue undischarged; or if it shall become subject to any intervention whatsoever
that shall deprive it of the management of the aggregate of its property or any substantial
part thereof; or if it shall wind up or liquidate its affairs or there shall be issued a warrant of
attachment, execution, or similar process against any substantial part of its property, and
such warrant, execution or process shall remain un-dismissed, unbounded or undischarged
for a period of ninety (90) days, this Agreement shall be deemed immediately terminated
upon the occurrence of such event; or
12.4 If the ownership of CSUSA shall be transferred or assigned, directly or
indirectly, without the prior written consent of the CITY in accordance with Section 16.
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12.5 Upon the occurrence of an Event of Default, the non-defaulting party
shall be entitled to pursue all remedies available under law or equity, including without
limitation, terminating this Agreement in accordance with Section 13.
13. Termination of this Agreement. This Agreement may be terminated by the
parties as follows:
13.1 Termination with Cause or for Nonperformance. Upon the
occurrence of an Event of Default, the non-defaulting party shall be entitled to terminate
this Agreement with cause or for nonperformance (hereinafter referred to as "Termination
with Cause"), prior to the end of the term, with seven (7) days prior written notice.
13.1.1 Upon Termination with Cause, the parties shall immediately
end their performance of obligations pursuant to this Agreement and shall have no further
obligations or responsibilities to each other as of the date of such termination, including
any payment obligations (except reimbursement of authorized expenses incurred by
CSUSA on behalf of the CITY or the Charter High School and unpaid earned Fees),
except as otherwise indicated in this Agreement, and the non-defaulting party shall be
entitled to pursue all remedies available under law or equity.
13.2 Termination without Cause. This Agreement may be terminated
without cause (hereinafter referred to as "Termination without Cause"), as follows:
13.2.1 Upon the effective date of a Management Agreement, this
Agreement may terminate as agreed to by both parties. The Management Agreement with
CSUSA shall specify the manner in which remaining obligations or responsibilities of the
parties pursuant to this Agreement, including any payment obligations, are to be
performed.
13.2.2 This Agreement shall terminate on June 30, 2019, unless
terminated earlier in accordance with the provisions of Section 13 or as otherwise provided
for in this Agreement.
13.2.3 By the CITY, for the failure to receive approval from the
Chartering Entity for the Charter High School Application or the Charter High School's
Charter in accordance with the provisions of this Agreement.
13.2.4 By the CITY, upon thirty(30)days advanced written notice, due
to a change in federal, state or local law, policy, rule or appropriations during the term of
this Agreement which would materially impact the ability to design, build, operate or
maintain the Charter High School. Such changes could include, but not be limited to, a
charter school capital outlay funds appropriation that is less than the current amount
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provided by the state, or a modification that would substantially impact the ability to limit the
enrollment process to target the children of the CITY.
13.2.5 By the CITY, at any time and for any reason or no reason, upon
thirty (30) days advance written notice. If the CITY terminates this Agreement under this
Section 13.2. 5 at any point on or after December 1, 2017, the CITY shall pay to CSUSA
within fifteen (15) days of the date of termination a lump sum termination fee of Fifty
Thousand Dollars ($50,000.00) (the "Termination Fee"), and the parties shall have no
further obligations or responsibilities to each other, as of the date of such termination,
except as otherwise indicated in this Agreement, provided however, that CSUSA shall be
entitled to reimbursement of authorized expenses incurred by CSUSA on behalf of the
CITY or the Charter High School and unpaid earned Fees. If the CITY terminates this
Agreement under this Section 13.2.5 prior to July 1, 2018, the parties shall have no further
obligations or responsibilities to each other, as of the date of such termination, except as
otherwise indicated in this Agreement, provided however, that CSUSA shall be entitled to
reimbursement of authorized expenses incurred by CSUSA on behalf of the CITY or the
Charter School and unpaid earned Fees.
13.2.6 Upon Termination without Cause, except as provided in
Sections 13.2.5, the parties shall have no further obligations or responsibilities to each
other as of the date of such termination, including any payment obligations (except
reimbursement of authorized expenses incurred by CSUSA on behalf of the CITY or the
Charter School and unpaid earned Fees), except as otherwise indicated in this Agreement.
14. Transfer of Functions Upon Termination. In recognition of the paramount
importance of maintaining the integrity and continuing planning, design, development and
operation of the Charter High School, in the event this Agreement is terminated pursuant to
Section 13 CSUSA agrees to cooperate with the CITY for the transfer, within thirty (30)
calendar days of such termination, of the documents which relate to the planning, design,
development and operating functions of the Charter High School (to the extent such
documents are owned by the CITY) from CSUSA to the CITY or an entity selected by the
CITY. Such cooperation shall include, but is not limited, to:
14.1 Assignment of all employees and employment contracts of the Charter
High School and the transfer of employee records to the CITY or an entity selected by the
CITY.
14.2 Transfer of all student records, then current curriculum programs and
class syllabi of the Charter High School (unless the same is proprietary to CSUSA), if any,
to the CITY or an entity selected by the CITY.
14.3 Assignment of all contracts or subcontracts, if any, entered into by
CSUSA for the Charter High School, to the CITY or an entity selected by the CITY, if such
contracts are assignable.
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14.4 CSUSA shall provide the CITY, or an entity selected by the CITY, all
hardware, software, business applications and other intellectual property (with password
and configuration information) purchased by CITY. If CSUSA uses software or applications
to operate the Charter High School that is not owned by CITY or the Charter High School,
the CITY, at its sole option, may continue to use such software or applications. If the CITY
elects to continue to utilize CSUSA software or applications to operate the Charter High
School, the CITY shall execute a license agreement with CSUSA for the use of the same
for a license fee to be negotiated by the parties.
14.5 Transfer of all property including, but not limited to, furniture, fixtures,
equipment, materials, software and hardware acquired for the Charter High School by the
CITY and purchased by the CITY or through the use of funds designated for the Charter
High School, to the CITY or an entity selected by the CITY.
14.6 The delivery of any and all Public Records in CSUSA's possession to
the CITY or an entity selected by the CITY.
14.7 Transfer of any and all other information owned by the CITY, or
provision of assistance, to ensure the least disruption of the continuing planning, design,
development and operation of the Charter School as a result of the termination of this
Agreement.
14.8 The provisions of Section 14 shall survive the termination of this
Agreement.
15. Entire Agreement. This Agreement represents the entire understanding and
agreement between the parties with respect to the subject matter hereof, and supersedes
all other negotiations, understandings, and representations (if any) made by and between
such parties. The provisions of this Agreement may not be amended, supplemented, or
waived orally, but only by a writing signed by the parties and making specific reference to
this Agreement. The City Manager shall act for City hereunder.
16. Assignments. No party shall assign its rights or obligations hereunder
without the prior written consent of the other party to this Agreement, which consent may
be withheld by such party in its sole discretion except as otherwise provided for in this
agreement.
17. Further Assurances. The parties hereby agree from time to time to execute
and deliver such further and other assurances, assignments and documents and do all
matters and things that may be convenient or necessary to more effectively and completely
carry out the intentions of this Agreement.
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18. Relationship of Parties. The relationship between the parties hereto shall
be solely as set forth herein and neither party shall be deemed to be an employee, agent,
partner, or joint venturer of the other.
19. Interpretations. This Agreement shall not be construed more strictly against
one party than against the other merely because it may have been prepared by counsel for
one of the parties, it being recognized that both parties have contributed substantially and
materially to its preparation.
20. Time of the Essence. Time of performance by either party of each and
every provision or covenant herein contained is of the essence of this Agreement. CSUSA
shall be responsible for ensuring the timely performance of all activities and responsibilities
required during the term of this Agreement, including the production of documents, in
compliance with all applicable laws, ordinances, rules and regulations, to ensure, insofar as
is possible, that approval of the Charter High School Application is obtained from the
Chartering Entity in 2017; the approval of the Charter is obtained from the Chartering Entity
in 2018, unless such timeframes are extended by the CITY; and that the Charter High
School will be fully operational for the 2019-2020 school year. For the purpose of this
Agreement, "timely" shall include a reasonable time for review, consideration, and/or
modification by the City Manager, and, whenever deemed necessary by the City Manager,
include the appropriate time necessary for submission, consideration and/or approval by
the Aventura City Commission.
21. Binding Effect. All of the terms and provisions of this Agreement, whether
so expressed or not, shall be binding upon, inure to the benefit of, and be enforceable by
the parties and their respective legal representatives, successors, and permitted assigns.
22. Notices. All notices and other communications required or permitted under
this Agreement shall be in writing and given by:
22.1 hand delivery;
22.2 registered or certified mail, return receipt requested;
22.3 overnight courier, or
22.4 facsimile to:
If to CSUSA: Charter Schools USA,Inc
800 Corporate Drive, Suite 700
Fort Lauderdale, Florida 33334
Attention: Mr. Jonathan K. Hage, President
Fax: (954) 202-2047
15
With a copy to: Tripp Scott, P.A.
110 S.E. 6th Street, 15th Floor
Fort Lauderdale, Florida 33301
Attn: Edward J. Pozzuoli, Esq.
Fax: (954) 761-8475
If to the City: Eric M. Soroka
City Manager
City of Aventura
19200 West Country Club Drive
Aventura, Florida 33180
Fax: (305) 466-8919
With a copy to: Weiss Serota Helfman Cole & Bierman, P.L.
200 East Broward Blvd.
Suite 1900
Fort Lauderdale, Florida 33301
Attn: David Wolpin, Esq.
Fax: (954) 764-7770
or to such other address as any party may designate by notice complying with the terms of
this Section. Each such notice shall be deemed delivered:
22.4.1 on the date delivered if by hand delivery or overnight courier,
22.4.2 on the date upon which the return receipt is signed or delivery is
refused or the notice is designated by the postal authorities as not deliverable, as the case
may be, if mailed; and
22.4.3 on the date of transmission with confirmed answer if by fax.
23. Headings. The headings contained in this Agreement are for convenience of
reference only, and shall not limit or otherwise affect in any way the meaning or
interpretation of this Agreement.
24. Severability. If any part of this Agreement or any other agreement entered
into pursuant hereto is contrary to, prohibited by or deemed invalid under applicable law or
regulation, such provision shall be inapplicable and deemed omitted to the extent so
contrary, prohibited or invalid, but the remainder hereof shall not be invalidated thereby and
shall be given full force and effect so far as possible.
25. Waivers. The failure or delay of any party at any time to enforce this
Agreement shall not affect such party's right to enforce this Agreement at any other time.
Any waiver by any party of any breach of any provision of this Agreement shall not be
16
construed as a waiver of any continuing or succeeding breach of such provision, a waiver
of the provision itself, or a waiver of any right, power, or remedy under this Agreement. No
notice to or demand on any party in any case shall entitle such party to any other or further
notice or demand in any other circumstance.
26. Outside Business. Nothing contained in this Agreement shall be construed
to restrict or prevent, in any matter, CSUSA or its representatives or principals from
providing services to any third-party similar to the services provided pursuant to this
Agreement.
27. Third Parties. Nothing in this Agreement, whether express or implied, is
intended to confer any rights or remedies on any person other than the parties hereto and
their respective legal representatives, successors, and permitted assigns, nor is anything in
this Agreement intended to relieve or discharge the obligation or liability of any third person
to any party to this Agreement, nor shall any provision give any third person any right to
subrogation or action over or against any party to this Agreement.
28. Jurisdiction and Venue. The parties acknowledge that a substantial portion
of the negotiations, anticipated performance and execution of this Agreement occurred or
shall occur in Miami-Dade County, Florida, and that, therefore, without limiting the
jurisdiction or venue of any other federal or state courts, each of the parties irrevocably and
unconditionally:
28.1 agrees that any suit, action or legal proceeding arising out of or
relating to this Agreement may be brought in the courts of record of the State of Florida in
Miami—Dade County or the court of the United States, Southern District of Florida in Miami
—Dade County.
28.2 consents to the jurisdiction of each such court in any suit, action, or
proceeding; and
28.3 waives any objection which it may have to the laying of venue of any
such suit, action, or proceeding in any of such courts.
29. Enforcement Costs. In the event of any controversy arising under or
relating to the interpretation or implementation of this Agreement or any breach thereof, the
prevailing party shall be entitled to recover all court costs, expenses, and reasonable
attorneys' fees (including, without limitation, all pre-trial, trial and appellate proceedings)
incurred in that action or proceeding, in addition to any other relief to which such party or
parties may be entitled.
30. Remedies Cumulative. No remedy herein conferred upon any party is
intended to be exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now or
17
hereafter existing at law, in equity, by statute or otherwise. No single or partial exercise by
any party of any right, power, or remedy hereunder shall preclude any other or further
exercise thereof.
31. Subcontracts CSUSA may subcontract for the performance of any of its
responsibilities set forth in this Agreement, subject to notice to the CITY, such notice to
indicate if the subcontract will provide for assignment to the CITY in the event of the
termination of this Agreement, and the CITY's opportunity to review any and all proposed
subcontracts in connection with the performance of the duties, functions, and
responsibilities under this Agreement. CSUSA shall be responsible for the management of
all subcontractors in the performance of their work. If possible, any and all subcontracts
shall include provisions that provide for the assignment of these contracts to the CITY, or
an entity of the CITY's selection, should this Agreement with CSUSA be terminated
pursuant to the terms herein.
32. Obtainment of Charter. The CITY and CSUSA will use mutual due diligence
to obtain provisional approval of the charter application from the Chartering Entity for the
Charter High School. In the event the application is not approved by the Chartering Entity,
the CITY shall have the right to terminate this agreement, in accordance with Section
13.2.3.
33. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
34. Governing Law. This Agreement and all transactions contemplated by this
Agreement shall be governed by, construed, and enforced in accordance with the internal
laws of the State of Florida, without regard to principles of conflicts of laws.
35. Proprietary Information. The CITY agrees that CSUSA shall own all
copyrighted and other proprietary rights to all instructional materials, training materials,
curriculum and lesson plans, or any other materials created and developed by CSUSA, its
employees, agents or subcontractors, or by any individual working for or supervised by
CSUSA, which is developed during working hours or during time for which the individual is
being paid and which is specifically identified by CSUSA in writing as being copyrighted or
proprietary. CSUSA shall have the sole and exclusive right to license such materials for
use by other school districts, other public schools, or other customers, or to modify and/or
sell such materials for use by school districts, other public schools or other customers.
Notwithstanding the same, in the event of expiration or termination of this Agreement, the
CITY shall have the right to use such materials during the life of the Charter High School
provided the CITY pays a reasonable license fee (based upon the then existing market
value)to CSUSA; however, the CITY shall have no rights to use such materials beyond the
life of the Charter High School. During the term of this Agreement, CSUSA may disclose
such proprietary information, including that which is currently in existence as well as that
18
which may be created in the future. The CITY, to the extent permitted by law, shall treat all
proprietary information specifically identified in writing by CSUSA as though it were a trade
secret and copyrighted and shall use efforts as may be reasonably requested by CSUSA
so as not to disclose, publish, copy, transmit, modify, alter or utilize such proprietary
information during the Term of this Agreement or at any time after its expiration other than
to the extent necessary for implementation of this Agreement or as licensed from CSUSA
for the continuing planning, design, development and operation of the Charter High School
; provided, however, that CSUSA acknowledges that any information provided to the CITY
may be a public record under Florida law and may be subject to disclosure.
36. Sale or Transfer of Interest in CSUSA. This Agreement is made by the
CITY with CSUSA in its current ownership form and in reliance on the expertise of the
current principals and owners of CSUSA, including Jonathan Hage. No substantial change
in ownership or any other form of control of CSUSA, including the development and
planning of the Charter High School, shall be transferred or assigned, directly or indirectly,
without the prior written consent of the CITY, through the City Manager. For purposes of
this Agreement "substantial change in ownership" shall be defined as when a majority of
CSUSA ownership is not maintained by Jonathan Hage. In determining whether to
approve of any such transfer or assignment, the City Manager may consider, without
limitation:
36.1 whether the now current individual principals and managers of CSUSA
will continue to retain total administrative control over the Charter High
School;
36.2 the qualifications and character of the individuals or entities that are to
receive the transferred or assigned interest from CSUSA.
The CITY, upon considering the approval of the transfer or assignment, shall not
unreasonably withhold approval of such based upon the foregoing criteria.
37. Audits. The CITY shall have the right, at any time during business hours, at
the CITY's sole expense, and with reasonable notice to CSUSA, to inspect and audit, or
caused to be inspected and audited by a certified public accounting firm selected by the
CITY, the business records, bookkeeping and accounting records, tax records and returns
and other records of CSUSA with respect to this Charter High School and this Agreement.
CSUSA shall cooperate with CITY and the certified public accounting firm. If any of the
foregoing business records are retained by CSUSA following the expiration or earlier
termination of this Agreement and not delivered to the CITY, CSUSA shall maintain and
make available to the CITY such books and records for a period of six (6) years following
the expiration or earlier termination of this Agreement.
38. Police/Requlatory Powers. CITY cannot, and hereby specifically does not,
waive or relinquish any of its regulatory approval or enforcement rights and obligations as it
19
may relate to regulations of general applicability which may govern the Charter High School
, and any operations relative thereto. Nothing in this Agreement shall be deemed to create
an affirmative duty of CITY to abrogate its sovereign right to exercise its police powers and
governmental powers by approving or disapproving or taking any other action in
accordance with its zoning and land use codes, administrative codes, ordinances, rules
and regulations, federal laws and regulations, state laws and regulations, and grant
agreements.
[SIGNATURES APPEAR ON THE NEXT PAGE]
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IN WITNESS WHEREOF, CITY and CSUSA have signed this Agreement in
triplicate. One counterpart each has been delivered to CITY and CSUSA.
ATTEST: CITY OF AVENJU. A, FLORIpA
By: ----- - -- Imp- By: /': ___ �
Ellisa Horvath, MMC Eric M. Soroka, City Ma ager
City Clerk
APPROVED AS TO FORM: ^ cit. V' -G
By: / AAP L: / y - �'
City Attorney `{ y
O
Cory Oa %c��ic
WITNESSES: CHARTER SCHOOLS USA, INC.
Signature Jonathan K. age, Pres • : •t
J14«-1 L 1 .iP1
Print Name
21
ADDENDUM TO CONTRACT FOR SERVICES
(CITY OF AVENTURA-CSUSA)
THIS ADDENDUM to the contract for the provision of services (the "Contract ") is made and
entered into effective as of theq' day of April, 2017, by and between, the City of Aventura, Florida, a
Florida municipality, whose business address is 19200 W. Country Club Drive, Aventura, Florida 33180
(the "City") and CHARTER SCHOOLS USA("CSUSA") (the "Contractor").
WITN ESSETH
WHEREAS the City and Contractor previously entered into a Contract for professional, charter
high school planning services to be provided to the City by the Contractor as described in the contract;
and
WHEREAS, City procurement procedures require that agreements with City contractors require
the Contractor to comply with the Public Records Act; and
WHEREAS, upon City's request, the Contractor desires to assure the City of Contractor's
compliance with the Public Records Act.
NOW THEREFORE IN CONSIDERATION OF THE MUTUAL COVENANTS HEREIN CONTAINED AND
OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED,
IT IS HEREBY AGREED BY CITY AND CONTRACTOR, AS FOLLOWS:
(1) Recitals. The above stated recitals are hereby adopted and confirmed.
(2) Public Records Act Compliance.
a. CONTRACTOR agrees to keep and maintain public records in CONTRACTOR's possession or control
in connection with CONTRACTOR's performance under this Agreement. CONTRACTOR
additionally agrees to comply specifically with the provisions of Section 119.0701, Florida
Statutes. CONTRACTOR shall ensure that public records that are exempt or confidential and
exempt from public records disclosure requirements are not disclosed, except as authorized by
law, for the duration of the Agreement, and following completion of the Agreement until the
records are transferred to the CITY.
b. Upon request from the CITY custodian of public records, CONTRACTOR shall provide the CITY with
a copy of the requested records or allow the records to be inspected or copied within a reasonable
time at a cost that does not exceed the cost provided by Chapter 119, Florida Statutes, or as
otherwise provided by law.
c. Upon completion of this Agreement or in the event of termination by either party, any and all
public records relating to the Agreement in the possession of the CONTRACTOR shall be delivered
by the CONTRACTOR to the CITY MANAGER, at no cost to the CITY, within seven (7) days. All such
records stored electronically by CONTRACTOR shall be delivered to the CITY in a format that is
compatible with the CITY'S information technology systems. Once the public records have been
1
delivered upon completion or termination of this Agreement, the CONTRACTOR shall destroy any
and all duplicate public records that are exempt or confidential and exempt from public records
disclosure requirements.
d. Any compensation due to CONTRACTOR shall be withheld until all records are received as
provided herein.
e. CONTRACTOR's failure or refusal to comply with the provisions of this section shall result in the
immediate termination of this Agreement by the CITY.
Section 119.0701(2)(a), Florida Statutes
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA
STATUTES,TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT,
CONTACT THE CUSTODIAN OF PUBLIC RECORDS.
Custodian of Public Records: ELLISA HORVATH, CITY CLERK
Mailing address: 19200 WEST COUNTRY CLUB DRIVE,AVENTURA, FL 33180
Telephone number: 305-466-8901
Email: HORVATHE@CITYOFAVENTURA.COM
(3) Conflict. In the event that a conflict arises between the provisions of the Agreement and this
Addendum, the provisions of the Addendum shall control.
IN WITNESS WHEREOF, the parties hereto have accepted, made and executed this Addendum to Contract
upon the terms and conditions above stated on the day and year first above written.
CONTRACTOR: CITY OF AVENTURA, FLORIDA:
: •.
Presid- By: r
Eric M. ,Soroka
City Manager
ATTEST:
IC
.'iw �I ` ,. /`�1
\ i:' 9— City Clerk /
,� �-t•t, t`cLc Approved as to Form and Legal Sufficiency for
CP. c
fey °^ the Reliance of City nly: \
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City At orney