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HomeMy WebLinkAbout2010-050 16) A TRUE COPYMe CERTIFICATION ON LAST PAG . J . K . BARTON , CLERK DOC, . To ANPJ DF; ) - 0 CASK .DEPOSIT AND ESCROW AGREEMENT C;z 0 /d a THIS CASH DEPOSIT AND ESCROW AGREEMENT ("Agreement") is entered into as of this I st day of March , 2010, by and between IMAGINE SCHOOLS , INC . , a Delaware corporation ("Imagine") and INDIAN RIVER COUNTY, a political subdivision of the State of Florida ("County") : RECITALS A . At its regular meeting of April 29 , 2008 , the County granted special exception use approval to Imagine for a school on the north side of 4th Street, west of 58th Avenue (the " School "), which approval is known as SP - SE-08 - 11 - 46/2001090105 -62637 , being the County' s site plan approval number. Be On September 16 , 2008 , the County imposed a condition upon Imagine which required Imagine to post a bond in the amount of $ 350, 000 . 00 for the construction of a left turn lane for eastbound traffic from 4`h Street into the School site . This bond is required prior to issuance of a certificate of occupancy for Phase 2 of the School . C . Imagine desires to post the $ 350 , 000 . 00 bond, in cash, to the County, to be held in escrow, subject to the terms of this Agreement . Said sum and any interest accruing thereon are referred to collectively as the "Escrow Funds " . NOW, THEREFORE, for and in consideration of the mutual covenants herein contained and other good and valuable consideration each paid to the other, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows : 1 . Recitations . Imagine and County each confirm that the recitals set forth above are true and correct . 2 . Escrow Agent . County agrees to act as Escrow Agent in accordance with the provisions of this Agreement . 3 . Disbursement of Escrow Funds . Escrow Agent shall hold the Escrow Funds in a segregated interest bearing account until such time as they can be disbursed as follows : a. The Escrow Funds are to be used to pay the County, its contractors , subcontractors , agents , or employees , for the costs of construction of a left turn lane for eastbound traffic on 4"' Street into the School site, and for no other purpose . Such costs shall include design, engineering, permitting, construction, labor, and materials only for the left turn lane described herein or, in the event the County elects to culvert the canal adjacent to 0, Street rather than to buy additional right-of-way in order to accommodate h0ruc6clicrosUmagine School\CASH DEPOSIT AND ESCROW AGREEMENT.doc 1 e A TRUE COPY CERTIFICATION ON LAST PAGE J . K . BARTON , CLERK the left turn lane, then the cost for such culverting and placement of asphalt may be included . b . County shall present to Imagine its itemized estimate of costs prior to commencement of construction . c . At least fifteen ( 15) days prior to disbursement of the Escrow Funds or any part thereof, County shall deliver to Imagine its detailed itemization of actual costs and invoices , and all data used by the County to compute the cost of the left turn lane. d . Upon completion of the left turn lane described herein and payment therefore from the Escrow Funds , all funds remaining in the Escrow Funds shall be returned to Imagine . To the extent Escrow Funds are insufficient to complete construction of the left turn lane, County shall be solely responsible for any shortfall . County shall in no event commence construction until sufficient funds have been appropriated to complete construction. e . Notwithstanding anything else contained herein, the term of this Escrow shall be ten ( 10) years from the date of execution. Any funds remaining in the Escrow after that time shall be delivered to Imagine, together with any interest earned thereon at that time, and Imagine shall be deemed released of any further obligation or responsibility for the left turn lane described herein . 4 . Resolution of disputes . In the event of any dispute between Imagine and County regarding the Escrow Funds , jurisdiction and venue shall lie within Indian River County, Florida . 5 . Discharge of Escrow Agent. Disbursement and payment of the Escrow Funds in accordance with the terms, conditions , and provisions of this Agreement, shall fully and completely discharge and exonerate the Escrow Agent from any and all liability or obligations of any nature or character at law or equity arising from its duties as Escrow Agent under this Agreement. 6 . Notices . All notices and demands made hereunder shall be made in writing and given to the person to whom notice is directed by: (a) actual delivery at the address stated below, including by national overnight delivery service, which shall be deemed effective at the time of actual delivery; (b) US Postal Service addressed as stated below, which shall be deemed effective five (5 ) business days after being so deposited with the US Postal Service, provided the sender has a certificate of mailing evidencing the date of mailing; or (c) facsimile transmission to the facsimile numbers stated below which notice shall be deemed effective upon completion of the facsimile transmission provided the sender has written JABmce\clien s\Imngine School\CASH DEPOSIT AND ESCROW AGUENIENT.doc 2 TRUE COPY "ERTIFICATION ON LAST PAGE J . K . BARTON , CLERK proof of the time, date, and successful completion of such transmission . All notices , demands , or other communications shall be addressed as follows : If to Imagine : Imagine Schools , Inc . 1005 N . Glebe Road, Suite 610 Arlington, VA 22201 Attn : Isabel Berio , General Counsel Facsimile No . : 703 - 527 - 0038 With copy to : Bruce Barkett, Esq . Collins , Brown, Caldwell , Barkett & Garavaglia, Chtd . P . O . Box 64 - 3686 Vero Beach, FL 32963 Facsimile No . : 234 - 5213 If to County : Indian River County 1801 27th Street Vero Beach, FL 32960 Facsimile No . 569 -4317 7 . Compensation and Reimbursement . The parties agree that the Escrow Agent shall not be entitled to compensation or reimbursement for the escrow services described herein . 8 . Benefits and Protections . The benefits and protections provided by this Agreement shall inure solely to Imagine and to the County and not to any third parties , including, but not limited to , neighbors , lot purchasers , contractors , subcontractors , laborers , suppliers , or others . Imagine shall not be liable to claimants or others for obligations of the County in the performance of the construction improvements described herein, nor shall Imagine have any liability for payment of any costs or expenses of any third party who attempts to make a claim under this Agreement . 9 , Miscellaneous . Time is of the essence of this Agreement . This Agreement is made in the State of Florida and shall be governed by Florida law . This is the entire Agreement between the parties and may not be modified or amended except by a written document signed by all parties to this Agreement . This Agreement may be signed in more than one counterpart, in which case each counterpart shall constitute an original of this Agreement . Paragraph headings are for convenience only and are not intended to expand or restrict the scope or substance of the provisions of this Agreement . Wherever used herein, the singular shall include the plural , the plural shall include the singular, and pronouns shall be read as masculine , feminine , or neuter as the context requires . The prevailing party in JABruceMientsUmagine School\CASH DEPOSIT AND ESCROW AGREEMENT.doc 3 r ly TRUE COPY Wachovia Connection ' N- RTIFICATION ON LAST PAGE Page I of I �; . K . BARTON , CLERK by ' Welcome ED Home I Contact Us I Training Logout ^n ! A •� ° r .£ �% 1 Q 6 - f JIM"�Hmw Account Services Fraud Control Information Information Payment Services Management Reporting Account Summary :: Cash Position : : Transaction Search :: Favorites : : Settings Transaction Search by Accounts (CONCENTRATION ) for '02/26110' to '02126/10' i Back Help Favorite Add To Favorites Print Transaction Transaction Details Searches ( „ Bank Name: WACHOVIA BANK •-•••— Account Number: 2000044270289 lAccount Name : CONCENTRATION Search Type: ` n Transaction Code : 195 ITransaction Date : 02/26/10 Account Data Select:' Value Date: 02/26/10 Transaction Amount: 350 ,000 .00 Accounts • Transaction Short Description: WIRE IN Immediate Credit: 350,000 .00 Select Accounts:* Credit/Debit: C 1 Day Float: 0.00 CnNr:FNTRATIC Check/Deposit Number: 00000000000 2 Day Float: 0 .00 Sequence Number: 100226072671 3+ Day Float: 0.00 Select Date:* 0 -- - Customer Reference Number: Currency: USD Transaction DateA'- Bank Reference Number: From: 02/26/10 117 FUNDS TRANSFER (ADVICE 2010022600072671 ) RCVD FROM BANK OF AMERICA /BANK OF AMER ICA, ORG=SCHOOLHOUSE FINANCE LLC RFB=TS20100226022002 OBI = To: REF=2010022600340654 02/26/10 04:37PM ET 02/26/10 .,.... 3 r Description : • More Options View Transaction Image MAR 0 COUNTY ATTORNEY ' S OFFICE. © Legal Information I Privacy I Security https : //wcp . wachovia. coin/NETInformationManagement/TransactionSearch . aspx?id=fl5 . , , 03 /01 /2010 i TRUE COPY 06RTIFICATION ON LAST PAGE J . It . BARTON , CLERK any litigation, arbitration, mediation, or appeal relating to this Agreement shall be entitled to recover its reasonable attorneys , fees and costs from the other party for all matters . Indian River County, Florida, shall be the proper venue for any litigation involving this Agreement . This Agreement shall bind and inure to the benefit of the parties and their respective successors and assigns . This Agreement is made in consideration of the mutual covenants and agreements stated herein, the sufficiency of which is hereby acknowledged by both parties . If any provision of the Agreement is held to be illegal , invalid or unenforceable under present or future laws, such provision shall be fully severable ; this Agreement shall be construed and enforced as if such illegal , invalid or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by such illegal , invalid, or unenforceable provision The parties have caused this Agreement to be executed effective on the date first stated above . Signed, sealed and delivered in the p . esence of. I 9�DIMAGINE SCHOOLS , IN � Print Name_ '-:1 By: / Print Name �� 124 (- 1 {� • (Q Name Title : '�'t'L c e1 C S i cl t INDIAN RIVE C4T-J-NTY Pria- '!IVmne-� By: Print Name Name ' Title : JABruccklientsUmngine SchoohCASH DEPOSIT AND ESCROW AGREEMENI'.doc 4 i r ' INDI RIVER COUNTY IND ! �By: e _ Peter D . O '-Bryan, Q4ai an yli , �.t �. , k BCC appr°ovec : 2 / . ;� / 20101 Attest : J . K. Barton, Clerk of Court a _ Deputy Clerk f ° APPROVED AS TO FOR AND LE A.L SUFF ! E B WILLIAM K. OEBRAAL OEPuTY COUNTY ATTORNEY ESTATE OF FLOR (BA ' 1' T @INDIAN RIVER fQU Tr' f THISIST¢CERTIFY�THATTHISIS -7 n' W TRUE;AN &CORRECT COPY OF THE ORIGINAL ON FILE IN-THIS f' OFFICE _ . - J F Y K . BART C B - D . C . DATE _tZ.. .J: J W13mce/clients/Imagine SchooWCASH DEPOSIT AND ESCROW AGREEMENT 5