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HomeMy WebLinkAbout2009 11 23 Regular 604 Tuscawilla Homeowners Association Flagpole Infrastructure Maintenance Agreement COMMISSION AGENDA Consent ITEM 604 Informational Public Hearing Regular X November 23. 2009 Meeting 010 gr. Att. Dept. REQUEST: The City Attorney requests that the City Commission approve the Tuscawilla Homeowners Association Flagpole Infrastructure Maintenance Agreement. PURPOSE: The purpose of this agenda item is to approve a Flagpole Infrastructure Maintenance Agreement "Agreement between the City and the Tuscawilla Homeowners Association "THOA APPLICABLE LAW AND PUBLIC POLICY: 1. Florida Municipal Home Rule Powers Act CONSIDERATIONS: 1. At the June 23, 2008 City Commission meeting, the Community Development Department requested that the City Commission consider a request from the THOA for permission to install a flagpole and American flag in a public roadway median at the main entrance to the Tuscawilla subdivision. The City Commission authorized the Flagpole Infrastructure to be installed in the median ofthe main entrance of the Tuscawilla Planned Unit Development, located at the intersection of Tuscawilla Road and Winter Springs Boulevard, with the condition that the THOA donate funds to maintain the flagpole. 2. The City Urban Beautification Services Division Manager requested the City Attorney prepare a Flagpole Infrastructure Maintenance Agreement. 3. The Tuscawilla Homeowners Association has agreed to pay all related costs related to the maintenance of the Flagpole Infrastructure. Page 1 of 2 4. The City will maintain an internal escrow account, funded by the THOA, to handle the costs related to the power and maintenance of the Flagpole Infrastructure. 5. This Agreement has been approved by the THOA. RECOMMENDATION: The City Attorney recommends approving the Flagpole Infrastructure Maintenance Agreement. ATTACHMENT: Flagpole Infrastructure Maintenance Agreement Page 2 of 2 FLAGPOLE INFRASTRUCTURE MAINTENANCE AGREEMENT THIS FLAGPOLE INFRASTRUCTURE MAINTENANCE AGREEMENT "Agreement is made and entered into this day of November, 2009, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation "City and the TUSCAWILLA HOMEOWNERS' ASSOCIATION, INC., a Florida non profit corporation "THOA WITNESSETH: WHEREAS, the THOA donated a flagpole, American flag and related lighting system "Flagpole Infrastructure to the City to be installed in the median of the main entrance of the Tuscawilla Planned Unit Development, located at the intersection of Tuscawilla Road and Winter Springs Boulevard; and WHEREAS, the THOA desires to donate the funds required to maintain the Flagpole Infrastructure; and WHEREAS, at the June 23, 2008 City Commission meeting, the City Commission authorized the Flagpole Infrastructure to be installed in the median with the condition that the THOA donate funds to maintain the Flagpole Infrastructure; and WHEREAS, the City and the THOA desire to memorialize the aforesaid condition by entering into this Agreement; and NOW, THEREFORE, in consideration of mutual covenants and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. The foregoing recitals are true and correct and are fully incorporated herein by this reference. 2. Maintenance of Flagpole Infrastructure. (a) The City agrees to maintain the Flagpole Infrastructure under the condition that the THOA hereby agrees to donate, to the City, the funds reasonably necessary for the City to maintain said infrastructure. Maintenance shall include, but not be limited to, labor and materials for maintaining the Flagpole Infrastructure in good working order and in accordance with proper standards, replacing worn or damaged parts, replacing the American Flag when needed, and paying the electricity charges necessary to light the Flagpole Infrastructure. (b) The City also agrees that the Flagpole Infrastructure will be maintained in accordance with the established standards for maintaining an American flag on a flagpole that is on public display. FLAGPOLE INFRASTRUCTURE MAINTENANCE AGREEMENT City of Winter Springs Tuscawilla Homeowners' Association, Inc. Page 1 of 3 3. Internal Escrow Account. For purposes of accounting for the maintenance funds donated by the THOA pursuant to Section 2 of this Agreement, the City shall establish an Internal Escrow Account. The Internal Escrow Account shall be used to track the deposits made by the THOA hereunder and the itemized expenditures incurred by the City related to the Flagpole Infrastructure. The City shall only use the funds in the Internal Escrow Account for the maintenance purposes stated herein. Upon the effective date of this Agreement, the THOA shall deposit Three Thousand and 00 /100 Dollars ($3,000.00) into the Internal Escrow Account. At any such time the City notifies the THOA that the balance of the Internal Escrow Account has been reduced to Five Hundred and 00 /100 Dollars ($500.00), the THOA agrees to replenish the Internal Escrow Account to an amount equal to Three Thousand and 00 /100 Dollars ($3,000.00). Upon request by the THOA, the City will provide the THOA a written accounting of the deposits made to, and expenditures made from, the Internal Escrow Account. 4. Term of this Agreement. This Agreement shall remain in full force and effect for as long as either party desires to maintain the Flagpole Infrastructure. In the event the City no longer maintains the Flagpole Infrastructure, all funds remaining in the Internal Escrow Account at such time shall be refunded to the THOA, less any funds expended by the City pursuant to Section 5 of this Agreement. This Agreement may be terminated by either party by giving thirty (30) days advance written notice to the other PAY. 5. THOA's Failure to Make Donations to the Internal Escrow Account. In the event that the THOA fails to make the donations required pursuant to Section 3 of this Agreement, the City shall provide the THOA with written notice to replenish the Internal Escrow Account within seven (7) calendar days of receipt of the notice. If the THOA fails to replenish said Internal Escrow Account within this time period, the THOA agrees and understands that the City may, at its discretion, remove the Flagpole Infrastructure and terminate this Agreement with no further notice. The City shall have the right to use any funds remaining in the Internal Escrow Account to remove the Flagpole Infrastructure and restore the median to the condition that it was in immediately prior to the installation of the Flagpole Infrastructure. 6. Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The parties further agree that in any dispute between them relating to this Agreement, exclusive jurisdiction shall be in the trial courts located in Seminole County, Florida, for state actions, and Orlando, Florida, for federal actions. Any objections as to jurisdiction or venue in such courts being expressly waived. 7. Third Party Rights. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the THOA. 8. Attorney's Fees. Should either party bring an action to enforce any of the terms of this Agreement, each party shall bear their own attorneys' fees and costs. 9. Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign FLAGPOLE INFRASTRUCTURE MAINTENANCE AGREEMENT City of Winter Springs Tuscawilla Homeowners' Association, Inc. Page 2 of 3 immunity under Section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. 10. Responsibilities of the Parties. Each party shall be responsible and liable for their own acts and omissions and the acts and omissions of their respective officers, employees, and agents in performing their respective obligations hereunder. IN WITNESS WHEREOF the parties have hereunto set their hands and seals on the day first above written. CITY OF WINTERS SPRINGS, a Florida TUSCAWILLA HOMEOWNERS' municipal corporation. ASSOCIATION, INC., a Florida non profit corporation. By: By: John F. Bush, Mayor Pam Carroll, President Date: Date: FLAGPOLE INFRASTRUCTURE MAINTENANCE AGREEMENT City of Winter Springs Tuscawilla Homeowners' Association, Inc. Page 3 of 3 FLAGPOLE INFRASTRUCTURE MAINTENANCE AGREEMENT THIS FLAGPOLE INFR MAINTENANCE AGREEMENT ( "Agreement ") is made and entered into this 023P' day of November, 2009, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation ( "City "), and the TUSCAWILLA HOMEOWNERS' ASSOCIATION, INC., a Florida non -profit corporation ( "THOA "). WITNESSETH: WHEREAS, the THOA donated a flagpole, American flag and related lighting system ( "Flagpole Infrastructure ") to the City to be installed in the median of the main entrance of the Tuscawilla Planned Unit Development, located at the intersection of Tuscawilla Road and Winter Springs Boulevard; and WHEREAS, the THOA desires to donate the funds required to maintain the Flagpole Infrastructure; and WHEREAS, at the June 23, 2008 City Commission meeting, the City Commission authorized the Flagpole Infrastructure to be installed in the median with the condition that the THOA donate funds to maintain the Flagpole Infrastructure; and WHEREAS, the City and the THOA desire to memorialize the aforesaid condition by entering into this Agreement; and NOW, THEREFORE, in consideration of mutual covenants and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. The foregoing recitals are true and correct and are fully incorporated herein by this reference. 2. Maintenance of F1a2pole Infrastructure. (a) The City agrees to maintain the Flagpole Infrastructure under the condition that the THOA hereby agrees to donate, to the City, the funds reasonably necessary for the City to maintain said infrastructure. Maintenance shall include, but not be limited to, labor and materials for maintaining the Flagpole Infrastructure in good working order and in accordance with proper standards, replacing worn or damaged parts, replacing the American Flag when needed, and paying the electricity charges necessary to light the Flagpole Infrastructure. (b) The City also agrees that the Flagpole Infrastructure will be maintained in accordance with the established standards for maintaining an American flag on a flagpole that is on public display. FLAGPOLE INFRASTRUCTURE MAINTENANCE AGREEMENT City of Winter Springs / Tuscawilla Homeowners' Association, Inc. Page 1 of 3 3. Internal Escrow Account. For purposes of accounting for the maintenance funds donated by the THOA pursuant to Section 2 of this Agreement, the City shall establish an Internal Escrow Account. The Internal Escrow Account shall be used to track the deposits made by the THOA hereunder and the itemized expenditures incurred by the City related to the Flagpole Infrastructure. The City shall only use the funds in the Internal Escrow Account for the maintenance purposes stated herein. Upon the effective date of this Agreement, the THOA shall deposit Three Thousand and 00/100 Dollars ($3,000.00) into the Internal Escrow Account. At any such time the City notifies the THOA that the balance of the Internal Escrow Account has been reduced to Five Hundred and 00 /100 Dollars ($500.00), the THOA agrees to replenish the Internal Escrow Account to an amount equal to Three Thousand and 00/100 Dollars ($3,000.00). Upon request by the THOA, the City will provide the THOA a written accounting of the deposits made to, and expenditures made from, the Internal Escrow Account. 4. Term of this Agreement. This Agreement shall remain in full force and effect for as long as either party desires to maintain the Flagpole Infrastructure. In the event the City no longer maintains the Flagpole Infrastructure, all funds remaining in the Internal Escrow Account at such time shall be refunded to the THOA, less any funds expended by the City pursuant to Section 5 of this Agreement. This Agreement may be terminated by either party by giving thirty (30) days advance written notice to the other per'. 5. THOA's Failure to Make Donations to the Internal Escrow Account. In the event that the THOA fails to make the donations required pursuant to Section 3 of this Agreement, the City shall provide the THOA with written notice to replenish the Internal Escrow Account within seven (7) calendar days of receipt of the notice. If the THOA fails to replenish said Internal Escrow Account within this time period, the THOA agrees and understands that the City may, at its discretion, remove the Flagpole Infrastructure and terminate this Agreement with no further notice. The City shall have the right to use any funds remaining in the Internal Escrow Account to remove the Flagpole Infrastructure and restore the median to the condition that it was in immediately prior to the installation of the Flagpole Infrastructure. 6. Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The parties further agree that in any dispute between them relating to this Agreement, exclusive jurisdiction shall be in the trial courts located in Seminole County, Florida, for state actions, and Orlando, Florida, for federal actions. Any objections as to jurisdiction or venue in such courts being expressly waived. 7. Third Party Rights. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the THOA. 8. Attorney's Fees. Should either party bring an action to enforce any of the terms of this Agreement, each party shall bear their own attorneys' fees and costs. 9. Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign FLAGPOLE INFRASTRUCTURE MAINTENANCE AGREEMENT City of Winter Springs / Tuscawilla Homeowners' Association, Inc. Page 2 of 3 immunity under Section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Agreement. 10. Responsibilities of the Parties. Each party shall be responsible and liable for their own acts and omissions and the acts and omissions of their respective officers, employees, and agents in performing their respective obligations hereunder. IN WITNESS WHEREOF the parties have hereunto set their hands and seals on the day first above written. CITY OF WINTERS SPRINGS, a Florida TUSCAWILLA HOMEOWNERS' municipal corporation. ASSOCIATION, INC., a Florida non - profit corporation. 411 ,, By: • f F: Bush, Mayor Pam Carroll, President Date: 1 / 9 ° Date: //72 Vol FLAGPOLE INFRASTRUCTURE MAINTENANCE AGREEMENT City of Winter Springs / Tuscawilla Homeowners' Association, Inc. Page 3 of 3