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HomeMy WebLinkAbout2005 11 28 Regular 508 COMMISSION AGENDA ITEM 508 CONSENT INFORMATIONAL PUBLIC HEARING REGULAR X November 28, 2005 Meeting MGR ~EPT Authorization REQUEST: The Community Development Department is requesting authorization for Winding Hollow Homeowners Association to install upgraded streetlighting throughout the subdivision and for the City Commission to decide the most prudent method for Winding Hollow to make payment for this project. PURPOSE: This agenda item is needed for the City Commission to approve Winding Hollow Homeowners Association for installation of upgraded streetlighting (134 units) in the City right-of-way areas in Winding Hollow. CONSIDERATIONS: On March 28, 2005, the City Commission directed staff to draft an agreement addressing the details necessary for a Home Owners Association (HOA) within the City of Winter Springs to upgrade street lighting and street signage within the public right of way. On May 9, 2005, the City Commission adopted, with mmor changes, the Neighborhood Street Sign and Light Improvement Agreement (NSSLIA), which provides for any state registered mandatory HOA in the City of Winter Springs to upgrade street lighting and/or street signage within the HOA right-of-way areas; as long as the requirements of the agreement are met. The NSSLIA keeps improved HOA streetlight billing on the City account and stipulates that the HOA would maintain advance deposits one year in advance for the monthly rental, maintenance, energy, and gross receipts tax payments to Progress Energy. Approving the NSSLIA agreement will make the City a collection agent and increase liability for the City if the HOA fails to make future advance deposits. Item 508 - November 28, 2005 On October 21, 2005, Mr. Greg Pike, the President of Winding Hollow HOA, submitted a signed NSSLIA for upgrading street lighting throughout the Winding Hollow Subdivision; totaling 134 decorative streetlights. Additionally, the HOA has also submitted a prepayment for the estimated up front construction costs in the amount of$21,028.00. On November 14, 2005, The City Commission was presented with Regular Agenda Item 502, which asked for the City Commission to approve contracting with Winding Hollow HOA, using the NSSLIA instrument, for the upgrading of streetlighting on public right-of- way throughout the community. The City Commission requested the item return with additional information. Staff has contacted Progress Energy and found that the City could authorize, by letter to Progress Energy, any legally registered HOA in the City of Winter Springs to create a separate account for upgraded streetlighting. This option would remove the burden from the City of being a collection agent for monthly rental, maintenance, energy, and gross receipts tax payments to Progress Energy. In the case of Winding Hollow HOA, the base streetlight rate of $11.55 per unit would be reimbursed, as well as the Municipal Franchise Fee, by the City to Winding Hollow HOA. The following is a breakdown of fees and taxes found on Progress Energy streetlight billing and the method of exemption for an HOA. · Gross Receipts Tax - No Waiver. · Municipal Franchise Fee - Pass Thru Fee to the City (Must be reimbursed directly from the City to the HOA). · Municipal Utility Tax - Waived by Common Use Form. · Sales Tax on Electric - Waived by Common Use Form. · Sales Tax on Equipment - Waived by Common Use Form. 2 Item 508 - November 28, 2005 FUNDING: Funding for this project will be provided by the Winding Hollow Homeowner's Association. RECOMMENDATION: It is the recommendation of City Staff for the Commission to allow Winding Hollow HOA to create a private account with Progress Energy for upgraded streetlights (134 units) and their installation as described in Attachments # 2, 3; located in the right-of-way within the Winding Hollow HOA subdivision. Staff also recommends the Commission authorize annual reimbursement of the base streelighting rate of $11.55 per unit (subject to revision) and the 'pass-thru' Municipal Franchise Fee as applied to each streetlight by Progress Energy. Staff also recommends the Commission allow this program to be extended to legally registered HOA applicants that meet all requirements of the City and Progress Energy for upgraded streetlighting in City right-of-way areas. IMPLEMENTATION SCHEDULE: The project will be authorized immediately upon Commission approval with construction to begin as scheduled by Progress Energy. ATTACHMENTS: 1. Neighborhood Improvement Street Sign and Lighting Agreement 2. Progress Energy Lighting Solutions Proposal 3. Street Lighting Layout For Winding Hollow Boulevard 4. Vote Certification Affidavit 5. Up Front Costs Deposit 6. Progress Energy - Common Use Form COMMISSION ACTION: 3 1'ffTllc;f\ l'1t ,.n "w' ---- ,"..'....t (Form 812005) NEIGHBORHOOD STREET SIGN AND LIGHT IMPROVEMENT AGREEltfENT This Neighborhood Street Sign and Light Improvement Agreement ("Agreement'1 is made and entered into this _ day of , 2005, by and between the City of Winter Springs, Florida, a Florida municipal corporation ("City") and Wj'~cL:""~ +lollow ~. O.Pt. . a Florida corporation ("Association"). WITNESSETH: WHEREAS, the Association is a homeowner's association located within the City of Winter Springs, Florida; and WHEREAS, the City currently provides the Association and its members with standard street signs and lights located on City streets that traverse through the real property which constitutes the Association; and WHEREAS, the Association has requested and the City desires to provide enhanced decorative street signs and lights at the Association's expense under the terms and conditions herein; and / ') WHEREAS, the parties acknowledge that this agreement will improve the aesthetic appearance of the City's streets primarily for benefit and enjoyment of the Association and its members and incidentally to the rest ofthe citizens of Winter Springs. NOW THEREFORE, in consideration ofthe 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 "Progress Energy" shall mean Progress Energy and any successor and assign to the City's electric franchise. 2.2 I'Sign Plate" shall mean the metal face plate of the street sign on which street Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 1 of 7 .i (Form 1I2OOS) names and other traffic symbols and/or language is written such as "stop" and speed limits. ,I: :~..&.. 2.3 "Street Light Base Rate" shall mean the actual cost charged by Progress Energy to install, maintain, and operate a standard concrete pole and cobra fixture. Said costs include electric, equipment rental, maintenance, gross receipts tax and other associated charges imposed by Progress Energy in accordance with law. At the effective date of this Agreement, the Street Light Base Rate is equal to $.J02l-/ M!:J. . The parties acknowlooge that said- baSe-rate is subject to periodic adjustments by Progress Energy and the City of Winter Springs. Section 3. Scope of Project. The City and Association agree that the Association agree that the Association desires to purchase, install, maint$ and operate the decorative street signs and street lights depicted and itemized in Exhibit "I." which is attached hereto and incorporated herein by this reference (the "Project"). The parties acknowledge that the decorative street signs must comply with the Florida Department of Transportation and City of Winter Springs' standards and the decorative street lights are provided by Progress Energy. Section 4. obligations: Association's Oblieations. The Association agrees to perform the following 4.1 Decorative Street Signs. The Association agrees to fully cooperate with the City to purchase, install, and maintain the decorative street signs required by the Project as follows: l "' f- (A) The Association shall agree to pay the City's actual out-of-pocket cost of purchasing and installing the decorative street signs required to complete the Project, excluding the actual cost of the sign plates which will be the City's responsibility. (B) Prior to the City competitively bidding the decorative street sign component of the Project, the Association agrees to pay the City a deposit in the amount of ($ ) which represents atleast fiftypetcent (50%) of the estimated cost of the street sign component ofthe Project, excluding the estimated cost ofthe sign plates. (C) Within seven (7) days of the City awarding the contract for the street sign component of the Project ("Street Sign Contract") and prior to contract execution with the contractor, the Association shall pay the City the amount that is due under the Street Sign Contract, less the deposit and excluding the cost of the sign plates. The City reserves the right to terminate the Street Sign Contract should the Association fail to make said payment. (0) In the event any of the decorative street signs must be replaced or repaired due to damage, deterioration, or age, the Association agrees to pay the City the cost ofthe repairs or the cost Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 2 of 7 .1.': ~.:.... (Fom! 8f20(5) of purchasing and installing the replacement decorative street signs. The Association's payment shall be made within thirty (30) days of receipt of written notice from the City and prior to the replacement. Notwithstanding, the City will be responsible for the repair or replacement of any damaged, deteriorated, or aged street sign plate. All other components of the street sign including, but not limited to, the foundation, framing, and pole will be the responsibility of the Association. (E) During the tenn ofthis Agreement, the Association agrees to maintain with the City a sign repair escrow account ("Sign Escrow Account''). At all times, the Association agrees to maintain a balance of Five Thousand and nollOO Dollars ($5,000.00) in the Sign Escrow Account. In the event the balance goes below $5,000.00, the City shall notify the Association in writing that the Sign Escrow Account must be replenished to satisfy the balance requirements ofthis Agreement. Upon receipt of said notice, the Association shall have thirty (30) days in which to replenish said account. The City shall have the right to use the money in the Sign Escrow Account to repair or replace any street sign required by this Agreement or to purchase and install any additional decorative street signs that the City determines are needed for traffic safety pwposes within the Association property. In the event that a street sign must be replaced, repaired, or added and the Association has failed to maintain an adequate balance in the Sign Escrow Account, the City shall have the unconditional right to make said repairs, replacement, or addition using a standard non- decorative street sign. . 4.2 Decorative Street Lights. The Association agrees to fully cooperate with the City to acquire, install, maintain, and operate the decorative street lights required by the Project as follows: . (A) The Association shall agree to pay the City the difference between the City's actual out- of-pocket cost of acquiring, installing, maintaining, and operating the decorative street lights required to complete the Project and the Street Light Base Rate. The parties acknowledge that said cost is currently itemized by Progress Energy on a montWy statement of service to the City and includes the cost of electric, equipment rental, maintenance, gross receipts tax, and other associated charges imposed by Progress Energy in accordance with law. (B) During the term of this Agreement, the Association agrees to maintain with the City a street light escrow account ("Street Light Escrow Account''). Within thirty (30) days of the effective date of this Agreement and by January I of each year subsequent to said effective date, the Association agrees to deposit in the Street Light Escrow Account an amount equal to the estimated actual cost of acquiring, installing, maintaining, and operating the decorative street lights for the upcoming calendar year. The first escrow payment, however, shall be based on the remainder of the current calendar year. So that the City is not required to up-front the Association's cost for the decorative street lights, the City reserves the right to increase the amount on deposit in the Street Light Escrow Account during the calendar year in the event that Progress Energy increases its monthly cost for the decorative street lights during any particular calendar year. In such cases, the Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 3 of 7 .J.'...... (FOI1ll 8f2OOS) City shall provide the Association with written notice and justification for the adjustment to the balance required to be on deposit in the Street Light Escrow Account and the Association shall increase the balance by making payment to the City within ten (10) days of receipt of said notice. Section 5. City's ObU2atlons. Subject to the Association's compliance with its payment responsibilities set forth under this Agreement, the City agrees to perfonn the following obligations: 5.1 The City agrees to pay the cost of purchasing the Sign Plates required to complete the Project. The City agrees to also contribute to the acquisition, installation, maintenance, and operation of the decorative street lights in an amount equal to the Street Light Base Rate. 5.2 The City will competitively bid and award the decorative street sign component of the Project and the Street Sign Contract in accordance with the City's purchasing policies and procedures. 5.3 The City will be responsible for acquiring, installing, maintaining, and operating the decorative street lights. Further, the City will be responsible for remitting the Association's payment (held by the City in Street Light Escrow Account) and the Street Light Base Rate to Progress Energy in accordance with Progress Energy's monthly statement of service. Section 6. Title to Street Signs and Lights. The right, title and interest of the decorative street signs shall be vested in the City. The right, title and interest of the decorative street lights shall be vested in Progress Energy. The Association shall have no property interest in the decorative street signs and street lights. 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 Winter Springs Code. The parties agree that venue shall be exclusively within Seminole County, Florida, for all state 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: Headines. This Agreement contains the entire agreement between the parties as to the subject matter hereof. 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 the~under (e.g., 2.1). Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 4 of 7 I ! (Ponn 812005) -, Section 10, SeverabWty. 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 this Agreement, modify this Agreement with the Association's consent, or remain in the Agreement as modified by the court. Section 11. Sovereien 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 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,ofWinter Springs 1126 East State Road 434 Winter Springs, FL 32708-2799 407-327-5366 (phone) 407-327-4753 (Fax) (b) If to Association: W:,J d.iN~ +tOt\ClW i-L O.A . P.o.Bo'tl. 1f,2.Il{1} A l~oN"\-JL SPri~jS I f'. L ~ Z 7/6 - '21 'f? '/07 - ,rz.. 3CfQ (phone) "-0"1 -6Jl.. Olaf (Fax) {./D ~ v:Ht+ CI\lY\ Section 13. Waiver Any forbearance by the City in exercising any right orremedy under this Agreement shall not constitute a waiver of or preclude the exercise of any right or remedy. ' Section 14. City's Rieht to Seek Equitable Relief and Special Assessment. The Association agrees, acknowledges and recognizes that any breach of this Agreement by the Association may result in irreparable hann to the City. The Association agrees that in addition to and not in lieu of all legal and equitable remedies available to City by reason of such breach, City shall be entitled to equitable relief(including, without limitation, specific performance and injunctive Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 5 of 7 <. - l (ponn 8f2OOS) relief) to enjoin the OCCWTence and condition of the breach. Further, in the event the Association fails to make the payments required herein, the Association acknowledges and agrees that the decorative street signs and street lights provide a special benefit to the Association and its members and that said special benefit is shared proportionately by all the members of the Association. In the event that the City determines that the Association has not made the payments required by this Agreement, the City reserves the unconditional right to assess the Association and its members for the Association's costs for the decorative street signs and street lights. ht the event the City is required to initiate an assessment, the Association agrees to fully support the assessment and the Association shall not contest, challenge or intervene in the assessment process. Section 15. Attorneys Fees. The prevailing party in any litigation arising under this Agreement shall be entitled to recover its reasonable attorneys' and paralegal fees and costs, whether incurred at trial or appeal. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. WI ... j ~~ rz~vWU~ Print Name Print Name Print Name CITY OF WINTER SPRINGS, a Florida Municipal Corporation: By: Ronald W. McLemore, City Manager Print Name Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 6 of 7 .~.:.~..~::... ~. ) I J , (Ponn 812005) STATE OF FLORIDA COUNTY OF e~tll~jt)L{; The foregoing ~ent was acknowledged before me tlris 1J!day of /)t-J7Jt! E fi! , 2005, by f1h4 tJ/Y ;( E . who executed the foregoing instrument and acknowledged before me that he ex~uted the same fur the uses and puIposes therein ~ and 0 who is personally known to me or 0 who has produced .fi0 ~/lJ it-:zJ,fr IIK/5 as identification and who did not take an oath. (NOTARY SEAL) CAROL A. LALLATHIN Notary Public, State of Florida My comm. expo 'Apr. 28, 2007 Comni. No. 00 20654fl STATE OF FLORIDA COUNTY OF SEMINOLE ~~/l!&k~ N Public Sign re ~1flJ.~ A f 11 <</fr-ll/ AI Typed or Printed NotaryName The foregoing instrument was acknowledged before me this _day of 2005, by RONALD W. MCLEMORE, City Manager of Winter Springs, Florida, who is personally known to me. (NOTARY SEAL) . Notary Public Signature Typed or Printed Notary Name Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 7 of 7 . . Pr-Hv,dMt,.,r 1*t.. a .F1orida Po\wr Lighting Solutions Proposal Rev. 1 Rev. 2 Rev. 3 FPC Contact: Office: FAX: ^PA.......~ Project Location Winding Hollow off SR 434, Winter S rin s Project ID: Project Summary 2/24/2004 8/5/2004 6/17/2005 10/14/2005 Gil DeFreitas 407 -942-9489 407-942-9350 1317200 Provide lighting alternative to existing 100 watt, HPS roadway fixtures on 30 ft concrete poles Contact Kipp Lockcuff Spot replace 106 existing locations Staggered spacing on Winding Hollow Blvd . Quantity Product Description Product per Required Fixtures and Poles unit Rental Sub Total 134 100 watt, HPS, Ocala fixture $11.11 $1,488.74 134 16 ft. Decorative concrete Victorian poles $9.98 $1,337.32 $0.00 Estimated Monthly Rental $2,826.06 Product Summary and Monthly estimate Total- Rent, Maintenance and Enerav** I $2,826.06 Price includes Estimated Up front costs (CIAC), If applicable I $21,028.00 Maint & Energy cost ** excludes taxes and other associate charges Estimate is valid for 90 days ** this an estimate only. Actual costs will be calculated upon product selection and lighting design. ...J L .-.. -.,. . . { { .. .. ... .. ... I '1 \\0 f"1' r p L ESlo\l - -. l'" \\ ~ f. 6: -, r A#o-thMe.J+ :Ii '{ .. WINDING HOLLOW HOMEOWNERS ASSOCIATION, INC. VOTE CERTIFICATION AFFIDAVIT STATE OF FLORIDA COUNTY OF SEMINOLE" " " I" Chuck Oliver, LeAM, Community Manager of the Winding Hollow Homeowners AssoCiation, Inc. do hereby certify the following results of the homeowner vote to allow the Board of Directors to enter into a contract with the City of Winter Springs to replace the street lights in the Association with a more decorative style of lighting system. Owners voting in the affirmative were 160. Owners voting against the project were 15. Dated this 28th day of October, 2005 ' ~ Chuck Oliver, LeAM The foregoing Affidavit was acknowledged before me on this 28th day of October, 2005 by Chuck Oliver, who is personally known to me. " '-- #,~' ~~ KATHLEEN M. BOllO 'A.Vr ~~v COMMISSION # DO 233577 . ...-t~;' " . ':<PIRES: July 20, 2007 <1 "j"" "" ~L NoIeIy Discount Ausoo. Oc ! ----_., ..- ......" ...'...,.,..._......'"tII.... ...,.............~ ,- ..' Notary Public - Printed Name 0 C :0 < :0 m m Z =" 0 z 0 9 ?:l .. ~ Q d "tJ :J: m Z -I C :<! " :0 .1 X Z 0 -I :< f'Fi. c ;u z -4 m 9 :I:: "tJ 0 :::0 c::: 0 (J) (j) ~ z ;:0 0 m < en i 0 en () m m Z 0 m :(!. ~ ~ ;:0 , G) m z -< (5 0 " ::r: Z r- -( G) 0 ! :::0 :J: ~ 0 0 r- g r- z Z 0 -- < ~ ~ 0 0 :5 :r: () o. m ~ b )> 0 s: ...... N ); CIQ 0 b c ;u 0 Z ~ -I .~#G.t~re..st- ~ ~ )> r-.> s: ..... N 0 ia ..... c CIQ b z b .~ -I 0 b ~ 0 ..... 6 is ..... <:3 01 o en () o c Z -I b .~ o ^ m Z o~ om O'IR .....z 010 ...". a Progress Energy ~t,hM-~~ 1l-~ :i. Co 0'\.(1\ O~ u.St- f..u r("/'\ ~ FLORIDA STATE SALES AND USE TAX Application for Sales Tax Refund and Indemnity Agreement For Residential Facilities with Common Areas And 100% Exempt Usage Page 1 of 2 FULL NAME OF PURCHASER (CUSTOMER NAME) I ACCOUNT NUMBER CITY STATE ZIP SERVICE ADDRESS FLORIDA CERTIFICATE OF EXEMPTION NUMBER (If Applicable) I Federal Employers Identification Number (F.E.I.N.) or Social Security Number USE PAGE 2 TO LIST MULTIPLE ACCOUNTS AND ACCOUNTS WITH MULTIPLE METERS (Purchaser), a (state of incorporation) corporation, by and through its officer who is duly authorized, hereby attests to Progress Energy Florida, Inc., that this sales tax refund claim, in the amount of $ , is being made for electric utilities for service addresses listed within this application, in which the undersigned hereby certifies to Progress Energy that all electric energy or power purchased during the period in which the refund is claimed, is exempt from the Florida State Sales and Use Tax. This exemption is based upon Section 212.08(7)0) of the Rules and Regulations of the State of Florida, Department of Revenue. Rule 12A-1.053(1) provides as follows: "12A-1.053 Electric Power and Energy. (1)(a) The sale of electric power or energy by private or public utilities and rural electric cooperative associations is taxable. Electric power or energy is exempt when it is separately metered and sold for use in residential households (including trailer lots) direct to the actual consumer by utilities who are required to pay the gross receipts tax imposed by Section 203.01, Florida Statutes. Such electric power or energy is exempt, even though metered and billed direct to the landlord (master-metered). However, if any part of the utility or fuel is used for a non-exempt purpose, the entire sale is taxable. Landlords shall provide separate meters for non-exempt consumption of electric power and energy. This exemption shall also apply to electric power or energy sold to residents when separately metered and billed direct to them. Electric power or energy used in residential model homes or common areas of apartments, cooperatives and condominiums is exempt provided that none of the electric power or energy is used in residential model homes which are used as sales offices or for other non-exempt purposes. Hotels and motels cater primarily to transient guests and are not considered to be residential households. Therefore, this exemption shall no't apply to electric power or energy sold for use in hotels and motels." Section 212.08(7)0), Florida Statutes also states: "For the purposes of this paragraph, licensed family day care homes shall also be exempt." By extending this agreement to Company, Purchaser represents that none of the electric power or energy it purchases from Company under the specified account(s) will be used for a nonexempt purpose. Purchaser or authorized representative thereof understands that if the Department of Revenue or other competent authority determines that such purchases do not qualify for exemption, Purchaser may be subject to assessment of sales or use taxes, interest, and penalties, and that criminal penalties may apply for fraudulent claim of exemption, as prescribed under Florida Statute section 212.085. The Statute provides "When any person shall fraudulently, for the purpose of evading tax, issue to a vendor or to any agent of the State a certificate or statement in writing in which he claims exemption from sales tax, such person, in addition to being liable for payment of the tax plus a mandatory penalty of 200 percent of the tax, shall be liable for fine and punishment as provided by law for a conviction of a felony of the third degree, as provided in s.755.082, s.755.083, or s.755.084." In consideration of Company's acceptance of this agreement, Purchaser agrees not to assert any claim against Company for failing to charge or collect sales or use taxes from Purchaser, and hereby indemnifies and holds Company harmless against any loss or damage which Company may incur as a result of its reliance upon the representations of Purchaser set forth herein, including, but not limited to, any taxes, interest, or penalties assessed against Company, attorneys' fees (including attorneys' fees on appeal) associated with defending against assessment or enforcing this indemnification, and any related expenses. SIGNATURE OF OFFICER TITLE PRINT NAME TELEPHONE (Include Area Code) I DATE BY: T",v . 7/00 a Progress Energy Page 2 of 2 Only list those accounts and meters for which this exemption is claimed. All listed accounts must be in the same I='urchaser's (Customer) name. ISSUED BY: Tax Administration 7/00 (Form 12/2005) NEIGHBORHOOD STREET SIGN AND LIGHT IMPROVEMENT AGREEMENT This Neighborhood St~et Sign and Light Improvement Agreement ("Agreement") is made and entered into this ~ day of j~lIl\r1 ' 20 ~ , by and between the City of Winter Springs, Florida, a Florida municipal corporation ("City") and r.J:~'~ ~o((()v:> HID. Pr. , a Florida corporation ("Association"). WITNESSETH: WHEREAS, the Association is a homeowner's association located within the City of Winter Springs, Florida; and WHEREAS, the City currently provides the Association and its members with standard street signs and lights located on City streets that traverse through the real property which constitutes the Association; and WHEREAS, the Association has requested and the City desires to provide enhanced decorative street signs and lights at the Association's expense under the terms and conditions herein; and WHEREAS, the parties acknowledge that this agreement will improve the aesthetic appearance of the City's streets primarily for benefit and enjoyment of the Association and its members and incidentally to the rest ofthe citizens of Winter Springs. 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 "Progress Energy" shall mean Progress Energy and any successor and assign to the City's electric franchise. 2.2 "Sign Plate" shall mean the metal face plate of the street sign on which street Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 1 of 7 (Form 12/2005) names and other traffic symbols and/or language is written such as "stop" and speed limits. 2.3 "Street Light Base Rate" shall mean the actual cost charged by Progress Energy to install, maintain, and operate a standard concrete pole and cobra fixture. Said costs include electric, equipment rental, maintenance, gross receipts tax and other associated charges imposed by Progress Energy in accordance with law. At the effective date of this Agreement, the Street Light Base Rate is equal to $ , ~ !!L . The parties acknowledge that said base rate is subject to periodic adjustments by Progress Energy and the City of Winter Springs. Section 3. Scope of Project. The City and the Association agree that this Agreement may cover both decorative street signs and decorative street lights depending on what is specifically set forth in Exhibit "I." The City and Association agree that the Association desires to purchase, install, maintain and operate the decorative street signs and street lights depicted and itemized in Exhibit "I." which is attached hereto and incorporated herein by this reference (the "Project"). The parties acknowledge that if decorative street signs are installed, they must comply with the standards ofthe Florida Department of Transportation and City of Winter Springs and if decorative street lights are installed, they must be provided by Progress Energy. Section 4. obligations: Association's Oblil!ations. The Association agrees to perform the following 4.1 Decorative Street Signs. To the extent that decorative street signs are part of this Agreement as provided on Exhibit "1. II the Association agrees to fully cooperate with the City to purchase, install, and maintain the decorative street signs required by the Project as follows: (A) The Association shall agree to pay the City's actual out-of-pocket cost of purchasing and installing the decorative street signs required to complete the Project, excluding the actual cost of the sign plates which will be the City's responsibility. (B) Prior to the City purchasing the decorative street sign co f the Project, the Association agrees to pay the City a deposit in the amount of ($ ) which represents at least fifty percent (50%) of the estimated cost of the street sign component of the Project, excluding the estimated cost of the sign plates. (C) Within seven (7) days of the City awarding the contract for the street sign component of the Project ("Street Sign Contract") and prior to contract execution with the contractor, the Association shall pay the City the amount that is due under the Street Sign Contract, less the deposit and excluding the cost of the sign plates. The City reserves the right to terminate the Street Sign Contract should the Association fail to make said payment. Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 2 of 7 (Form 1212005) (D) In the event any of the decorative street signs must be replaced or repaired due to damage, deterioration, or age, the Association agrees to pay the City the cost of the repairs or the cost of purchasing and installing the replacement decorative street signs. The Association's payment shall be made within thirty (30) days of receipt of written notice from the City and prior to the replacement. Notwithstanding, the City will be responsible for the repair or replacement of any damaged, deteriorated, or aged street sign plate. All other components ofthe street sign including, but not limited to, the foundation, framing, and pole will be the responsibility of the Association. (E) During the term ofthis Agreement, the Association agrees to maintain with the City a sign repair escrow account ("Sign Escrow Account"). At all times, the Association agrees to maintain a balance equal to twenty-five percent (25%) of the Street Sign Contract. The City reserves the right to periodically adjust the required escrow balance to account for inflation. In the event the balance goes below the required escrow balance, the City shall notify the Association in writing that the Sign Escrow Account must be replenished to satisfy the balance requirements ofthis Agreement. Upon receipt of said notice, the Association shall have thirty (30) days in which to replenish said account. The City shall have the right to use the money in the Sign Escrow Account to repair or replace any street sign required by this Agreement or to purchase and install any additional decorative street signs that the City determines are needed for traffic safety purposes within the Association property. In the event that a street sign must be replaced, repaired, or added and the Association has failed to maintain an adequate balance in the Sign Escrow Account, the City shall have the unconditional right to make said repairs, replacement, or addition using a standard non-decorative street sign and recover the actual cost thereof from the Association. 4.2 Decorative Street Lights. To the extent that decorative street lights are part of this Agreement as provided on Exhibit "1." the Association agrees to fully cooperate with the City to acquire, install, maintain, and operate the decorative street lights required by the Project as follows: (A) The Association shall take over from the City the full responsibility of maintaining the Progress Energy invoice for all of the street lights covered by the Project, including having the account placed in the name of the Association and making prompt and timely payments on said account. (B) The Association shall be responsible for promptly reporting all broken or damaged street lights directly to Progress Energy. The City reserves the right to do the same in the event that the Association fails in said reporting responsibilities. Section 5. City's Oblieations. Subject to the Association's compliance with its payment responsibilities set forth under this Agreement, the City agrees to perform the following obligations: Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 3 of 7 (Fonn 1212005) 5.1 The City agrees to pay the cost of purchasing the Sign Plates required to complete the Project. 5.2 The City will purchase the decorative street signs required by the Project and under the Street Sign Contract in accordance with the City's purchasing policies and procedures. 5.3 The City will assist the Association in coordinating with Progress Energy to acquire and install the decorative street lights. Upon installation, the City agrees to reimburse the Association for the acquisition, installation, maintenance, and operation of the decorative street lights in an amount equal and strictly limited to the Street . ht Base Rate. The City shall make the rei~ment on a monthly/quarterly/bi-annuall ual basIS CIRCLE ONE and INITIAL ). However, with respect to any increase in the num er of street lights above the number that were actually installed for the Association at the effective date ofthis Agreement, the City shall not be responsible for the Street Light Base Rate for the additional street lights unless the City agrees, in its discretion, that the additionallight(s) were required to bring the Association's street light plan into conformance with Progress Energy's standard photometric requirements. Section 6. Title to Street Siens and Liehts. The right, title and interest of the decorative street signs shall be vested in the City. The right, title and interest ofthe decorative street lights shall be vested in Progress Energy. The Association shall have no property interest in the decorative street signs and street lights. 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 Winter Springs Code. The parties agree that venue shall be exclusively within Seminole County, Florida, for all state 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 Aereement: Headines. This Agreement contains the entire agreement between the 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 this Agreement, modify this Agreement with the Association's Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 4 of 7 (Form 12/2005) consent, or remain in the Agreement as modified by the court. Section 11. Soverei.:n 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 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 East State Road 434 Winter Springs, FL 32708-2799 407~327~5366 (Phone) 407-327~4753 (Fax) (b) If to Association: W;tJcilN' Hot/o&.-> ~.o.J\. P,o.~o" Ib~14'J A \+AM.?~ SPfi'~s I t=c, 3~.,1 C. "01 ~ "'J: 1l('l1 (Phone) <.("/~6n~ O('it (Fax) 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. City's IDeht to Seek Equitable Relief and Special Assessment. The Association agrees, acknowledges and recognizes that any breach of this Agreement by the Association may result in irreparable harm to the City. The Association agrees that in addition to and not in lieu of all legal and equitable remedies available to City by reason of such breach, City shall be entitled to equitable relief(including, without limitation, specific performance and injunctive relief) to enjoin the occurrence and condition of the breach. Further, in the event the Association fails to make any payments that are required herein, the Association acknowledges and agrees that the decorative street signs and street lights provide a special benefit to the Association and its Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 5 of 7 (Form 12/2005) members and that said special benefit is shared proportionately by all the members of th~ Association. In the event that the City determines that the Association has not made the payments required by this Agreement, the City reserves the unconditional right to assess the Association and its members for the Association's costs for the decorative street signs and street lights. In the event the City is required to initiate an assessment, the Association agrees to fully support the assessment and the Association shall not contest, challenge or intervene in the assessment process. Further, in the event that the Association defaults on any street light account with Progress Energy which is covered by this Agreement, the City shall also, at its sole discretion, have the right to transfer said accounts into the City's name and thereby assume all the rights afforded an account holder. Section 15. Attorneys Fees. The prevailing party in any litigation arising under this Agreement shall be entitled to recover its reasonable attorneys' and paralegal fees and costs, whether incurred at trial or appeal. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. ::E~I/~~/ ../ ' ~~~ Print Name Print Name < Print Name M.tu ~~~-) j)~a ;/~ .k{,,~ ~~r CITY OF WINTER ~~RI~: a Florida MuniciparCorp~ration: BY:~~ /~ onald W. McLe~re, City Manag~1' / Print Name Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 6 of 7 (Form J 2/2005) STATE OF FL~DA COUNTY OF ~ The for~ in'?X' acknowledged before me thi, I/f!, day of ~ ' 20~, by f ' who executed the foregoing finstrume and acknowledged before e that he executed the same for the uses and purpo~ *ressed and o who is personally known to me or 0 who has produced~/a f./'~ identification and who did not take an oath. (NOTARY SEAL) CAROL A. LALLATHIN ~otary Public, State of FlorIda ,~y comm. expo Apr. 28, 2007 ~nmm. No. DO 206546 eil~~~ PublIc SIgn re U~IJI- A J/J41TII/d Typed or Printed Notary Name STATE OF FLORIDA COUNTY OF SEMINOLE The foregoing instrument was acknowledged before me this~ay of'~~Nw{ , 20~, by RONALD W. MCLEMORE, City Manag r Winter Springs, F1.orida, who is personally known to me. i~ -t\. Andrea Lorenzo..lu8ces ~ ~ .; My Commission DD20esr0 '> 0,,..' ExpIres May 09. 2007 (NOTARY SEAL) J..,:) tL.oj:t() -, wi-\ ~ Typed or Printed Notary Name Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 7 of 7 a Florida Power i\ PIotr..Emqy~ Project Location Winding Hollow off SR 434, Winter S tin ~X~~B~ 1- f- Lighting Solutions Proposal Rev. 1 Rev. 2 Rev. 3 FPC Contact: Office: FAX: 2/24/2004 8/5/2004 6/17/2005 10/14/2005 Gil DeFreitas 407 -942-9489 407 -942-9350 Project ID: Project Summary 1317200 Provide lighting alternative to existing 100 watt, HPS roadway fixtures on 30 ft concrete poles Contact Kipp Lockcuff Spot replace 106 existing locations Staggered spacing on Winding Hollow Blvd .. Quantity Product Description Product per Required Fixtures and Poles unit Rental Sub Total 134 100 watt, HPS, Ocala fixture $11.11 $1,488.74 134 16 ft. Decorative concrete Victorian poles $9.98 $1,337.32 $0.00 Estimated Monthly Rental $2,826.06 Product Summary and Monthlv estimate I Total- Rent, Maintenance and Energy" $2,826.06 Price includes I Estimated Up front costs (CIAC), If applicable $21,028.00 Maint & Energy cost ** excludes taxes and other associate charges Estimate is valid for 90 days ** this an estimate only. Actual costs will be calculated upon product selection and lighting design.