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Home My WebLink AboutJames Doran Company Town Center Partnership - 2006 03 10 Winter SDrinas Town Center PartnershiD Aareement This Winter Springs Town Center Partnership Agreement ("Agreement'') is made and entered into this --10~ day of M~h. ,20 d, by and between the City of Winter Springs, Florida, a Florida Municipal Corporation ("City'') and The James Doran Company (JDC), a Corporation ("Partner''). WITNESSETH: Whereas, the Partner is the developer and landowner of the Winter Springs Town Center Retail Spaces located within the City of Winter Springs, Florida; and Whereas, The City finds and declares that assisting the Partner in providing the public with a shaded space in which to enjoy the fountain and landscape amenities within the Town Center fulfills an important public purpose; and Whereas, the Partner has requested a 50/50 mutual participatory relationship with the City on this endeavor and the City has agreed that the long term benefit exceeds the initial investment cost to improve the public usefulness of the Town Center Fountain Feature Area. Now Therefore, in consideration of the mutual promises set forth hereunder, and other good and valuable consideration, which the parties acknowledge has been exchanged, the parties agree as follows: Section 1 Recitals. The foregoing recitals are true and correct and are hereby incorporated herein as a material part of this agreement. Section 2 Definitions. The following words and phrases used herein shall have the following meaning unless the context clearly indicates otherwise: 2.1 "Sylvester palms" shall mean (6) Phoenix sylvestris 'Wild Date Palm' 7-8' C T. (Climate Zones 7-11, Florida #1). To be planted in the Winter Springs Town Center, within the Fountain Feature located on Cliff Rose Drive, as shown in attached Exhibit 'A'. 2.2 "Establishment Period" shall mean 1 calendar year or 365 consecutive days. 2.3 "Watering" shall mean no less than 60 gallons per day for the first 2 months immediately following installation, and no less than 40 gallons every third day thereafter until the establishment period 1 has passed. Regular watering is to be in accordance with local watering restrictions once the establishment period has ended. 2.4 "Selection" shall mean a duly authorized Representative of the City of Winter Springs; to grade and approve the Sylvester palms prior to purchase and installation. 2.5 "Maintain" or "Maintenance" shall mean the Partner will take every necessary action to ensure survivability of the Sylvester Palms during and after the establishment period. This shall include following the University of Rorida - IFAS Extension Service prescribed regular chemical application program for date palms; to be performed by a state chemical licensed palm specialist. Section 3 Scope Of Project. The City and the Partner agree that this Agreement covers the terms of participation, the purchase, the installation, and the maintenance of Sylvester palms to be located at the fountain area on Cliff Rose Drive in the Winter Springs Town Center. Section 4 Partner's Obligations. The Partner agrees to perform the following obligations: (A) The Partner shall agree to pay 50% (up to $8,000) of the purchase cost of the Sylvester palms, installed by a mutually agreed party, in the Winter Springs Town Center Fountain area located on Cliff Rose Drive. (6) The Partner shall agree to allow the City to dominate in the selection of the Sylvester palms to be installed for this project. (C) The Partner shall agree to act with due diligence in the purchase of the Sylvester palms immediately upon their availability. (D) The Partner shall agree to maintain the Sylvester palms with adequate watering, chemical applications, pruning and other required maintenance activities for an indefinite time period. (E) The Partner shall agree to replace the Sylvester palm(s), should any perish, with the same tree of equal or greater size, quality and value. Section 5 City's Obligations. The City agrees to the following obligations: (A) The City shall agree to pay 50% (up to $8,000) of the purchase cost of the Sylvester palms, installed by a mutually 2 agreed party, in the Winter Springs Town Center Fountain area located on Cliff Rose Drive. (8) The City shall agree to act with due diligence in the selection of the Sylvester palms. (C) The City shall agree to monitor the Sylvester palms on a monthly basis and provided feedback to the Partner, if necessary, as to their care and future maintenance needs. Section 6 Title to the Sylvester palms. The right, title and interest of the Sylvester palms shall be vested in the Partner. Section 7 Applicable Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida and the City of Winter Springs. The parties agree that venue shall be exclusively within Seminole County, Florida, for all states disputes or actions which arise out of or are based upon this Agreement, and in Orlando, Florida, for all such federal disputes or actions. Section 8 Amendments. This Agreement shall not be modified or amended except by written agreement executed by all parties hereto and approved by the City Commission or City Manager of the City of Winter Springs. Section 9 Entire Agreement; Headings. This Agreement contains the entire agreement between parties as to the subject matter hereof. The Agreement may only bind the City if executed by the City Manager or Mayor of Winter Springs. Paragraph headings are for convenience of the parties only and are not to be construed as part of this agreement. All references to whole paragraph numbers (e.g. 2) shall include all subparagraphs thereunder (e.g.,2.1). Section 10 Severability. If any provision of this Agreement shall be held to be invalid or unenforceable to any extent by a court of competent jurisdiction, the City shall have the unconditional right to either terminate the Agreement, modify this Agreement with the Partner's consent, or remain in the Agreement as modified by the court. Section 11 Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statues, or any other limitation on the City's potential liability under state or federal law. Section 12 Notice. All notices and correspondence in connection with this Agreement must be in writing. Notice and correspondence shall 3 be sent by first class mail or hand delivered at the addresses set forth below or at such other addresses as the parties hereto shall designate to each other in writing. (a) If to the City: Mr. Ronald W. McLemore, City Manager City of Winter Springs 1126 E. SR 434 Winter Springs, FL 32708-2799 (407) 327-1800 x202 (407) 327-4753 Fax (b) If to Partner: ~arne~0.:,r-~ CoMf~1_ ri..\b :5'e~'~~ F~5 Cllt.. ~I+e 'Vv Ch~ oe. yto.v IS c.. ').. ~ LfCj l... '6l\ 3 - .-g~, - 7'J-S--O Section 13 Waiver. Any forbearance by the City in exercising any right or remedy under this Agreement shall not constitute a waiver of or preclude the exercise of any right or remedy. Section 14 Attorneys Fees. The prevailing party in any litigation arising under this Agreement shall be entitled to recover its reasonable attorney's and paralegal fees and costs, whether incurred at trial or appeal. --intentionally left blank-- 4 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. TH~ By: ~ CITY OF WINTER S_PRINGS A Florida Municipa! C:orporation By: I~~~ Ronald W. McLemore, ity Manager Date: (1\ f1 r ,," 'v ,1 oJ.) 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