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2001-068RESOLUTION NO. 2001-68 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, AUTHORIZING THE CITY MANAGER TO EXECUTE THE ATTACHED PLANNING AGREEMENT FOR THE AVENTURA CHARTER ELEMENTARY SCHOOL BETWEEN THE CITY OF AVENTURA AND CHARTER SCHOOLS USA AT AVENTURA, L.C., AND CHARTER SCHOOLS USA, INC.; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS RESOLUTION; AND PROVIDING AN EFFECTIVE DATE. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, THAT: Section 1. The City Manager is hereby authorized to execute the attached Planning Agreement for the Aventura Charter Elementary School between the City of Aventura and Charter Schools USA at Aventura, L.C., and Charter Schools USA, Inc. 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 Vice Mayor Rogers-Libert, who moved its adoption. The motion was seconded by Commissioner Holzberg, and upon being put to a vote, the vote was as follows: Commissioner Arthur Berger Commissioner Jay R. Beskin Commissioner Ken Cohen Commissioner Manny Grossman Commissioner Harry Holzberg Vice Mayor Patricia Rogers-Libert Mayor Jeffrey M. Perlow yes yes yes yes yes yes yes Resolution No. 2001 Page 2 PASSED AND ADOPTED this 2nd day of October, 2001. ATTEST: , ~. /~ CITY ATTORNEY /'JE'r=FI~EY M."~E-RL~OW, MAYOR- PLANNING AGREEMENT among CHARTER SCHOOLS USA, INC., and CHARTER SCHOOLS USA AT AVENTURA, L.C., and CITY OF AVENTURA for the AVENTURA CHARTER ELEMENTARY SCHOOL TABLE OF CONTENTS 1, Recitals 2, Definitions 3. Term 4. Charter School 5. Services to be provided by CSUSA 6. Responsibilities of the City 7. Cooperation 8. Additional Mutual Obligations 9. Charter Schools Funding Resources 10, Development Agreement 11. Planning Fee 12. Insurance 13. Indemnification 14. Default 15. Termination of this Agreement 16. Transfer of Functions Upon Termination 17. Entire Agreement 18. Assignments 19. Further Assurances 20. Relationship of Parties 21, Interpretations 22. Time of the Essence 23. Binding Effect 24. Notices 25. Headings 26. Severability 27. Waivers 28. Outside Business 29. Third Parties 30. Jurisdiction and Venue 31. Enforcement Costs 32. Remedies Cumulative 33. Subcontracts 34. Acquisition of School Site 35, Obtainment of Charter 36. Counterparts 37. Governing Law 38. Proprietary Information 39. Sale or Transfer of interest in CSUSA 40. Audits 41. Police\Regulatory Powers 1 2 3 3 4 8 10 10 10 10 10 11 11 12 12 14 15 15 15 15 16 16 16 16 17 17 17 18 18 18 18 19 19 19 19 20 20 20 20 21 21 PLANNING AGREEMENT FOR THE AVENTURA ELEMENTARY CHARTER SCHOOL ~T~IIS PLANNING AGREEMENT (the "Agreement") is made and entered into as of the ? day of October, 2001, by and among CHARTER SCHOOLS USA, INC., a Delaware corporation; CHARTER SCHOOLS USA AT AVENTURA, L.C., a Florida limited liability company (collectively ~CSUSA"); and CITY OF AVENTURA ("CITY"), a Florida municipal corporation. WITNESSETH: WHEREAS, the CITY issued RFP #01-06-01-2 to design, build, operate and maintain a Charter Elementary School for the City of Aventura at the site currently known as the Tempest Parcel, at 3333 N. E. 188"' Street, Aventura, Florida hereinafter referred to as the "Site"; and WHEREAS, after extensive review of the submittal by City staff, staff recommended that CSUSA in association with Charter Schoolhouse Developers, Inc., be selected to design, build, operate and maintain a Charter Elementary School for the City of Aventura; hereinafter referred to as "Charter School"; and WHEREAS, CSUSA has partnered with Charter Schoolhouse Developers, Inc., for the design, construction and development of the Charter School Site and Facility, hereinafter referred to as "Facility"; and WHEREAS, at the July 3, 2001, City Commission meeting, the Commission approved a Resolution selecting the firm of CSUSA in association with Charter Schoolhouse Developers, Inc., to design, build, operate and maintain a Charter Elementary School for the CITY and authorized the City Manager to negotiate the terms and fees and finalize agreements necessary to implement said Resolution. 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 Charter 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. 1 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 A.qreement - The written agreement between CITY and CSUSA covering the Services to be performed, including the Planning Contract Documents, as hereinafter defined, and that are attached to this Agreement or made a part thereof. 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 Mana,qer - 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. 2.4 Planninq Contract Documents - The Planning Contract Documents consist of the Certificate(s) of Insurance, all applicable provisions of State, Federal, Chartering Entity or local laws, ordinances, regulations, rules or policies (incorporated herein by reference), including the State Uniform Building Code for Public Educational Facilities Construction and the State Requirements for Educational Facilities (hereinafter referred to as "SREF"), and as may be incorporated into the Florida Building Code; the RFP Response (as hereinafter defined), and any additional documents which are required to be submitted under this Agreement, and all amendments, modifications and supplements issued on or after the effective date of the Agreement. 2.5 CSUSA - Where CSUSA is indicated as the responsible party to perform an obligation pursuant to this Agreement, the parties acknowledge and agree that Charter Schools USA, Inc. and Charter Schools USA at Aventura, L.C. shall have joint and several liability and responsibility to perform such obligation. 2.6 Effective Date of the Agreement -The date indicated in the Agreement on which it becomes effective, but if no such date is indicated, the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver, provided however, that this Agreement shall not become effective until the execution of a Development Agreement for the design and development of the Charter School Facility, and in such case, the Effective Date of this Agreement shall be the date of the last of the parties to sign and deliver the Development Agreement. 2.7 Services - Those activities which must be performed prior to the actual commencement of the operation of the Charter School as set forth in this Agreement in order to insure that the Charter School opens in a timely manner for the 2003-2004 school year, including but not limited to, charter school application coordination, 2 development and submittal; coordination, development and approval of the school's charter; 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. 2.8 Mana.qement 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 School upon the termination of this Agreement. The parties intend that the Management Agreement be executed on or before July 1,2003, 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, 2003. 2.9 Development A.qreement - The DEVELOPMENT AGREEMENT FOR THE DESIGN AND CONSTRUCTION OF THE AVENTURA ELEMENTARY CHARTER SCHOOL FACILITY, between the CITY and Charter Schoolhouse Developers, Inc. (the "DEVELOPER"), that is to be executed simultaneously with this Agreement, and will provide for the design, construction and development of the Facility. 2.10 RFP Response - The June 1, 2001 submittal by Charter Schools USA, Inc. in association with DEVELOPER in response to RFP #01-06-01-2 to design, build, operate and maintain a Charter Elementary School for the City of Aventura, which is hereinafter incorporated by reference, and as further represented or clarified by Charter Schools USA, Inc. to the CITY during the selection process. 2.11 Written Amendment - A written amendment of the Agreement and/or the Planning Contract Documents, 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 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, 2003, or the effective date of a Management Agreement between the CITY and CSUSA whichever occurs first, 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 an elementary school commencing in the 2003-2004 school year. 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 School prior to the actual commencement of the operations of the Charter School, which are necessary during the term of this Agreement to have a fully operational Charter School for the 2003-2004 school year. Any funds required or expenditures to be made by CSUSA in the performance of these responsibilities shall be substantially in conformance with the RFP Response and the Charter School Application. 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 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. 5.2 Plannin.q and Development. CSUSA shall perform the following services associated with the planning and development of the Charter School. 5.2.1 Facilities Plannin.q 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 and/or as required by local and state building codes, including SREF, as applicable. CSUSA shall review and approve, on a timely basis, the preliminary and final design documents and plans prepared by DEVELOPER as required in the Development Agreement. In addition, CSUSA shall identify in writing all furniture, fixtures and equipment (the "FF&E") necessary for the Charter School, in conformance with the RFP Response, and shall assist the CITY and DEVELOPER with obtaining, ordering, purchasing and installing the FF&E. Ail FF&E that is to be attached to or permanently affixed to the Facility shall be installed by the DEVELOPER pursuant to CSUSA's specifications. CSUSA acknowledges that the Chartering Entity has indicated that it will waive 4% of its typical 5% administrative fee, where charter schools are constructed under certain conditions, including the condition that the charter school be constructed in accordance with SREF. It is the intent of this Agreement and the Development Agreement to provide for CSUSA, the DEVELOPER and the CITY to work diligently together and, insofar as is possible within the approximate 45,000 square feet proposed in the RFP Response, design and construct the Facility in accordance with the requirements mandated by the State Uniform Building Code for Public Educational Facilities Construction and SREF (and as may be incorporated in the new Florida Building Code), 4 including all life/safety mandates and mandates resulting from the specified educational program. 5.2.2 Operations Planninq and Development. With input and involvement from the CITY and substantially in compliance with the RFP Response, the Charter Application and the Charter, CSUSA shall (a) respond to all requirements of the Charter School process; (b) develop and refine the curriculum and Charter 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 School; (c) assist CITY in hiring of the Charter School Principal; (d) interview and hire all other Charter School administration, teaching and support staff; (e) develop and implement the Charter School's staff and student recruiting and marketing plans; (0 organize and conduct parent orientations; (g) prepare, manage, supervise and implement the Charter School's opening; and (h) conduct all other activities necessary to have a fully operational Charter School for the 2003-2004 school year. 5.2.3 Management Information Systems. CSUSAshall coordinate with and assist the CITY in designing, ordering, purchasing, installing and implementing an MIS system consistent with the Charter School's purpose and goals. This shall also include business applications that meet, on an ongoing basis, any and all Federal, State, County, CITY, or Chartering Entity reporting mandates, applicable for the Charter 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, 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 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 School in conformance with the Charter Application, the Charter and RFP Response. CSUSA shall also recruit qualified personnel for the Charter School Principal, who shall be selected by mutual agreement between CSUSA and the City Manager and shall be an employee of the CITY. The CITY agrees, with the cooperation and involvement of CSUSA, to establish a job description, salaries and benefits for the Charter School Principal .The parties agree that the Charter School Principal shall be accountable to CSUSA for the day to day operations of the Charter School and for carrying out the mission of the Charter 5 School based on the goals and objectives as stated in the RFP Response, Charter Application and the Charter. CSUSA shall have the right, at any time, to make recommendations to the City Manager regarding disciplinary matters, including possible termination, of the Charter School Principal. The City Manager will consider such recommendations of CSUSA and act in accordance with his responsibilities as City Manager. CSUSA shall provide such other personnel as CSUSA, in its sole judgment, determines is necessary to properly operate the Charter School. CSUSA shall determine, in its sole discretion, the benefits that will be provide 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 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 or municipal authority during the term of this Agreement. All payroll and other financial or operational records for the Charter School shall be segregated and separated from all other CSUSA payroll records and shall be reported in a manner atlowing the payroll costs to be traced directly to the financial expenditures of the Charter School. CSUSA shall deposit such payroll taxes as may be required by the Internal Revenue Service for the payment of payroll taxes for the employees referenced herein. Ail 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 Public Relations; Fund Raisin.q Activities. (a) Public Relations. CSUSA shall coordinate, cooperate and work with the City Manager's Office as to all official public relations for the Charter 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 School, during the term of this Agreement, and CSUSA and the CITY shall coordinate and cooperate with such fund raising efforts. 5.2.7 Contract Administration. CSUSA shall coordinate, negotiate and administer those contracts for necessary uses or services to be performed or provided 6 by third parties or the CITY and which must be entered into by the Charter School during the term of this Agreement to ensure the efficient and timely opening of the Charter School. 5.2.8 Annual Budqet. CSUSA shall prepare and submit to the CITY a detailed annual budget (on a modified cash basis) (The "Charter School Annual Budget") for the 2002-2003 school year by March 1, 2002, and for the 2003-2004 school year by March 1,2003. These budgets shall be substantially in accordance with the RFP Response and 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 respective school year. The Charter 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 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. The final agreed proposed Charter School Annual Budget shall be submitted to the Aventura City Commission for approval no later than the City Manager's delivery of the annual Budget on July 10 of each year. 5.2.9 Pro.qram Outline. CSUSA shall develop a program outline that includes the curriculum for the Charter School. CSUSA shall also develop and provide the CITY with a space plan for the Charter School. 5.2.t0 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. 5.2.11 Coordination with the Charterin.q Entity. CSUSA shall be responsible for coordinating any and all activities of the Charter School with the requirements of the Chartering Entity and for complying with all reasonable requests of the Chartering Entity regarding the Charter School. 5.2.12 Monthly Reports and Financial Statements. CSUSAshall submit monthly written reports detailing the progress and achievements of the prior month's activities and monthly financial statements to the City Manager. 5.2.13 Compliance with Applicable Law. CSUSA acknowledges that the CITY is entering into this Agreement based, in part, on CSUSA's expertise in the 7 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 School Application is obtained from the Chartering Entity in 2001, and the approval of the Charter is obtained from the Chartering Entity in 2002, 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 a['tainment of the Charter from the Chartering Entity, CSUSA shall be responsible for ensuring that the Charter School complies with all applicable laws, ordinances, rules and regulations. The CITY agrees to negotiate in good faith with CSUSA and pay such additional sums as are necessary to enable the Charter School to comply with applicable laws, ordinances, rules and regulations which are enacted subsequent to the Effective Date of this Agreement, unless however, the CITY elects to terminate this Agreement pursuant to Section 15.2.5. 5.2.14 Records Retention; Public Records. CSUSAshall provide, protect, preserve, and maintain all books, records and related documents of or affecting the Charter 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. 5.2.15 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 School for the 2003-2004 school year. following: Responsibilities of the City. The CITY shall be responsible for the 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 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 8 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 Furniture, Fixtures and Equipment ("FF&E"). Upon written instructions from CSUSA, the CITY shall be responsible for obtaining, ordering and purchasing the FF&E to be utilized in or by the Charter School. At the CITY's option, the CITY may request that CSUSA order some or all of the FF&E. Regardless of whether the CITY or CSUSA orders the FF&E, such order(s) shall be in compliance with the written instructions from CSUSA unless mutually agreed otherwise. 6.3 Books and Supplies. Upon written instructions from CSUSA, the CITY shall be responsible for obtaining, ordering and purchasing the books and supplies to be utilized in or by the Charter School. At the CITY's option, the CITY may request that CSUSA order some or all of the books and supplies. Regardless of whether the CITY or CSUSA order the books and supplies, such order(s) shall be in compliance with the written instructions from CSUSA unless mutually agreed otherwise. 6.4 Tax Exempt Fund Raisinq Activities. If the CITY concludes it is appropriate to do so, the Charter School may seek to establish a separate tax-exempt organization to conduct fund raising activities and receive tax deductible contributions in support of the Charter School and/or of education generally. CSUSA shall cooperate with such tax-exempt organization as necessary and appropriate. 6.5 Fundin.q For Charter School Costs and Expenses~ The CITY shall provide funds, in amounts substantially in conformance with the RFP Response and Charter School Application, to cover costs and expenses associated with the planning and development of the Charter School, which costs and expanses shall include, start up funding, land acquisition and capital improvements including construction of the Facility 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 School revenues. The reimbursement schedule shall be included in the proposed Charter School Annual Budget. The CITY shall provide CSUSA with an estimate of any and all funds expected to be expended by the CITY pursuant to this Section during the subsequent budget year, that would not be generally known to CSUSA or included in the RFP Response, Charter Application or Charter; such estimate shall be included in the proposed Charter School Annual Budget. 6.5.1 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 School's actual expenditures, reported on a modified cash basis of accounting (including but not limited to all capital 9 expenditures). The City Manager shall direct payment from the Charter 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 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. 6.6 Other Activities. The CITY shall, in a timely manner, provide ail information and perform all other activities necessary during the term of this Agreement to have a fully operational Charter School for the 2003-2004 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 promptJy. 8. Additional Mutual Obliqations. 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 School Application as submitted to or approved by the Chartering Entity. 9. Charter Schools Fundin.q Resources. All revenues, grants, and revenue allocations received by or targeted to the Charter School, shall be directed to and retained in the Charter School Fund, as established by the CITY. 10. Development Aqreement. Simultaneously to the execution of this Planning Agreement, the DEVELOPER and the CITY shall execute a Development Agreement for the design and development of the Charter School Facility. This Agreement is expressly contingent on the execution by the parties of such Development Agreement. 11. Planninq Fee. The CITY shall pay CSUSA the sum of One Hundred Fifty Thousand Dollars ($150,000) 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 Five Thousand Dollars ($25,000.00) shall be due in a lump sum payment on the Effective Date of this Agreement; and (b) One Hundred Twenty Five Thousand Dollars ($125,000.00) shall be paid, upon the CITY's receipt of an invoice from CSUSA, in twenty (20) equal monthly installments of Six Thousand Two Hundred Fifty Dollars ($6,250.00) on the first of every month beginning November 1, 2001 and ending 10 June 1,2003.-Additionally, a Twenty Five Thousand Dollar ($25,000.00) bonus fee shall be due in a lump sum payment upon the execution of the Management Agreement. 12. Insurance. CSUSA shall maintain insurance coverage for the Charter School in the types and amounts required by the RFP Response, the Charter Application, the Charter or federal, state or local law, if necessary during the term of this Agreement. 13. Indemnification. 13.1 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 (¢) any failure by CSUSA to pay its suppliers or subcontractors. 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. 13.2 Subject to the provisions and monetary limitations of F.S. 768.28, 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's 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 suppliers or subcontractors. 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. 13.3 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 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. 13.4 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 11 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. 14. 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: 14.1 Failure to pay any amount due hereunder within thirty (30) days after written notice that such amount is due; or 14.2 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 14.3 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 14.4 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 39. 14.5 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 15. 15. Termination of this A.qreement. This Agreement may be terminated by the parties as follows: 12 15.1 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. 15.1.1 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 School and unpaid eamed 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. 15.2 Termination without Cause. This Agreement may be terminated without cause (hereinafter referred to as "Termination without Cause"), as follows: 15.2.1 Upon the effective date of a Management Agreement, this Agreement shall terminate. 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. 15.2.2 This Agreement shall terminate on June 30, 2003, unless terminated earlier in accordance with the provisions of Section 15 or as otherwise provided for in this Agreement. 15.2.3 By the CITY, for the failure to receive approval from the Chartering Entity for the Charter School Application or the Charter School's Charter in accordance with the provisions of Sections 5.1,5.2.13 or 35, or as otherwise provided for in this Agreement. 15.2.4 By the CITY, if the CITY is unable to acquire the Site in accordance with Section 34 or as otherwise provided for in this Agreement. 15.2.5 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 School substantially in conformance with RFP #01-06-01-2 or the RFP Response. Such changes could include, but not be limited to, a charter school capital outlay funds appropriation that does not provide for the Charter School to receive funding substantially in accordance with the RFP Response, or a modification that would substantially impact the ability to limit the enrollment process to target the children of the 13 15.2.6 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 15.2.6 at any point on or after November 1, 2002, the CITY shall pay to CSUSA within fifteen (15) days of the date of termination a lump sum termination fee of Seventy Five Thousand Dollars ($75,000.00) (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 other,vise 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. If the CITY terminates this Agreement under this Section 15.2.6 prior to November 1,2002, 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. 15.2.7 Upon Termination without Cause, except as provided in Sections 15.2.1 and 15.2.6, 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. 16. 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 School, in the event this Agreement is terminated pursuant to Section 15, 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 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: 16.1 Assignment of all employees and employment contracts of the Charter School and the transfer of employee records to the CITY or an entity selected by the CITY. 16,2 Transfer of all student records, then current curriculum programs and class syllabi of the Charter School (unless the same is proprietary to CSUSA), if any, to the CITY or an entity selected by the CITY. 16.3 Assignment of all contracts or subcontracts, if any, entered into by CSUSA for the Charter School, to the CITY or an entity selected by the CITY, if such contracts are assignable. 16.4 CSUSA shall provide the CITY, or an entity selected by the CITY, all hardware, software, business applications and other intellectual property (with password 14 and configuration information) purchased by CITY. If CSUSA uses software or applications to operate the Charter school that is not owned by CITY or the Charter 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 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. 16.$ Transfer of all property including, but not limited to, furniture, fixtures, equipment, materials, software and hardware acquired for the Charter School by the CITY and purchased by the CITY or through the use of funds designated for the Charter School, to the CITY or an entity selected by the CITY. 16.6 The delivery of any and all Public Records in CSUSA's possession to the CITY or an entity selected by the CITY. 16.7 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. 16.8 The provisions of Section 16 shall survive the termination of this Agreement. 17. Entire A.qreement. 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. 18. Assiqnments. 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. 19. 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. 20. 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. 15 21. 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. 22. 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 School Application is obtained from the Chartering Entity in 2001; the approval of the Charter is obtained from the Chartering Entity in 2002, unless such timeframes are extended by the CITY; and that the Charter School will be fully operational for the 2003-2004 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. 23. BindinR 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. 24. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and given by: 24.1 hand delivery; 24.2 registered or certified mail, return receipt requested; 24.3 overnight courier, or 24.4 facsimile to: If to CSUSA: Charter Schools USA at Aventura, L.C. 6245 N. Federal Highway, Suite 500 Fort Lauderdale, Florida 33308 Attention: Mr. Jonathan K. Hage, President Fax: (954) 202-2047 16 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 Pastoriza & Guedes, P.A. 2665 South Bayshore Drive Suite 420 Miami, Florida 33133 Attn: Steven W. Zelkowitz, Esq. Fax: (305) 854-2323 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: 24.4.1 on the date delivered if by hand delivery or overnight courier, 24.4.2 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 24.4.3 on the date of transmission with confirmed answer if by fax. 25. Headinqs. 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. 26. Severabilitv. 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. 27. 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. 17 Any waiver by any party of any breach of any provision of this Agreement shall not be 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. 28. 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. 29. 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. 30. 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: 30.1 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. 30.2 consents to the jurisdiction of each such court in any suit, action, or proceeding; and 30.3 waives any objection which it may have to the laying of venue of any such suit, action, or proceeding in any of such courts. 31. 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. 18 32. 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 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. 33. 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. 34. Acquisition Of School Site 34.1 The CITY shall use its best efforts, either through negotiations or eminent domain, to acquire the Site, as the primary site for the design, construction and development of the Facility, and to have possession of same on or before April 30, 2002. 34.2 In the event the CITY seeks acquisition of the Site by eminent domain, the timing of the disposition of the CITY's Petition for Eminent Domain shall be governed by court calendars, and the results of the CITY's Petition are dependent on interpretations of applicable law, including Chapters 73, 74 and 166, Florida Statutes, by the assigned circuit court judge in the 11th Judicial Circuit in Miami-Dade County, Florida. 34.3 Should the CITY not be able to acquire title to the Site, the CITY shall have the right to terminate this Agreement in accordance with Section 15.2.4. For purposes of this Section, "inability to acquire the Site" shall mean an adverse ruling bythe assigned judge on the City's Petition for Eminent Domain, which the CITY shall proceed diligently to file in an expeditious manner, or the inability to acquire possession of the Site on or before April 30, 2002, unless such date is extended by mutual written agreement of the parties hereto. 35. 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 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 15.2.3. 19 36. 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. 37. Governin,q Law. This Agreement and all transactions contemplated by this Agreement shall be governed by, construed, and enforced in accordance with the intemal laws of the State of Florida, without regard to principles of conflicts of laws. 38. Proprietary Infon'nation. 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 Char[er 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 School. During the term of this Agreement, CSUSA may disclose such proprietary information, including that which is currently in existence as well as that 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 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. 39. 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 ownership or any other form of control of CSUSA, including the development and planning of the Charter 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: 20 39.1 whether the now current individual principals and managers of CSUSA will continue to retain total administrative control over the Charter School; 39.2 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. 40. 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 retums and other records of CSUSA with respect to this Charter 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. 41. PolicelReRulatory Powers. CITY cannot, and hereby specifically does not, waive or relinquish any of its regulatory approval or enforcement rights and obligations as it may relate to regulations of general applicability which may govern the Charter School and the Facility, and any improvements or 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 cedes, administrative codes, ordinances, rules and regulations, federal laws and regulations, state laws and regulations, and grant agreements. [SIGNATURES APPEAR ON THE NEXT PAG~ 21 IN WITNESS WHEREOF, CITY and CSUSA have signed this Agreement in triplicate. One counterpart each has been delivered to CITY and CSUSA. ATTEST: Tere~(a/l~l Soro~C~ City ~rk APPROVED AS TO FORM: City Attorney ri~ M. Sor~ka, City~ WITNESSES: Print Name' CHARTER SCHOOLS USA AT AVENTURA, L.C. Jonathan K. Hage~sident ~ignature Print Name CHARTER SCHOOLS USA, INC. Jonathan K. Hage~sident 22