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HomeMy WebLinkAboutKB Home Orlando, LLC - Amberly Neighborhood Street Sign and Light Improvement Agreement - 2013 11 18 NEIGHBORHOOD STREET SIGN AND LIGHT IMPROVEMENT AGREEMENT This Neighborhood Street Sign and Light Improvement Agreement("Agreement") is made and entered into this day of , 20_, by and between the City of Winter Springs. a Florida municipal corporation ("City"), and KB Home Orlando, LLC. a Florida corporation ("Developer"). WITNESSETH: WHEREAS, Developer is the developer of Amberly, located within the City of Winter Springs, Florida("Development"); and WHEREAS, the City generally provides standard street signs and standard street lights located on City streets that traverse through the real property which constitutes the Development; and WHEREAS, Developer and the City desire to provide enhanced decorative street signs and decorative street lights at the Developer'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 Developer, the property owners in the Development, and incidentally to the rest of the 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 "Duke Energy" shall mean Duke 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 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 Duke Energy to maintain and operate a standard concrete pole and cobra fixture. Said costs include electric, Form 04/12 Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs—Amberly (KB Homes) Page 1 of 7 equipment rental, maintenance, gross receipts tax and other associated charges imposed by Duke Energy in accordance with law. At the effective date of this Agreement, the Street Light Base Rate is equal to $13.41. The parties acknowledge that said base rate is subject to periodic adjustments by Duke Energy and the City of Winter Springs. Section 3. Scope of Project. The City and Developer agree that this Agreement may cover both decorative street signs and decorative street lights depending on what is specifically set forth in Exhibit "1". The City and Developer agree that Developer desires to purchase, install, maintain and operate the decorative street signs and street lights depicted and itemized in Exhibit "1", 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 of the Manual of Uniform Traffic Control Devices, latest edition, and the City of Winter Springs, and if decorative street lights are installed, they must be provided by Duke Energy and approved by the City of Winter Springs. Section 4. Developer's Obligations. Developer agrees to perform the following obligations: 4.1 Decorative Street Signs. To the extent that decorative street signs are part of this Agreement as provided on Exhibit "1", Developer agrees to fully cooperate with the City to purchase, install, and maintain n/a decorative street signs required by the Project as follows: (A) Developer agrees purchase and install the decorative street signs required to complete the Project. (B) In the event any of the decorative street signs must be replaced or repaired due to damage, deterioration, or age, Developer agrees to repair or replace the decorative street signs at its sole expense. Following turn-over and assignment of this Agreement pursuant to Section 7 herein, the Association shall pay the City the cost of the repairs or the cost of purchasing and installing the replacement decorative street signs. Association's payment shall be made within thirty (30) days of receipt of written notice from the City and prior to the replacement. Notwithstanding, following turn-over, 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. (C) Developer agrees to purchase and maintain an inventory of extra decorative street signs in an amount equal to ten percent (10%) of the total number of signs required by this Agreement. Such inventory shall be stored with the City and shall be used for future sign repairs and replacement for the Development. The City shall have the right 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 Development. In the event that a street sign must be replaced, repaired, or added and Developer has failed to Form 04/12 Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs—Amberly(KB Homes) Page 2 of 7 maintain the inventory, 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 Developer. 4.2 Decorative Street Lights. To the extent that decorative street lights are part of this Agreement as provided on Exhibit "1", Developer agrees to fully cooperate with the City to acquire, install, maintain, and operate 12 decorative street lights required by the Project as follows: (A) Developer shall assume the full responsibility of maintaining the Duke Energy invoice for all of the street lights covered by the Project, including having the account placed in the name of Developer and making prompt and timely payments on said account. Upon turn- over to the Homeowners' or Community Association consistent with Section 7 of this Agreement, said Association shall assume responsibility for the street lights and have the account placed in its name. (B) Developer shall be responsible for promptly reporting all broken or damaged street lights directly to Duke Energy. The City reserves the right to do the same in the event that Developer fails in said reporting responsibilities. Section 5. City's Obligations. Subject to Developer's compliance with its payment responsibilities set forth under this Agreement, the City agrees to perform the following obligations: 5.1 Following turn-over pursuant to Section 7 of this Agreement, the City agrees to pay the cost of purchasing replacement Sign Plates required for maintenance of the Project. 5.2 The City will assist Developer in coordinating with Duke Energy to acquire and install the decorative street lights. Conditioned upon completion of each of the following: (i) installation and the establishment of an account with Duke Energy; (ii) at least 75% of the homes being occupied by private owners; and (iii) all common areas being built to 100% completion, the City agrees to reimburse the Developer for the maintenance and operation of the decorative street lights in an amount equal and strictly limited to the Street Light Base Rate. The City shall not be obligated to reimburse Developer until each of the preceding conditions is met. The City shall make the reimbursement on a quarterly basis. However, with respect to any increase in the number of street lights above the number that were actually installed for Developer at the effective date of this 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 additional light(s) were required to bring Developer's street light plan into conformance with Duke Energy's standard photometric requirements. Further, reimbursement shall only be made for those street lights that are operational and only where Developer has provided to the City proof of payment. Form 04/12 Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs—Amberly(KB Homes) Page 3 of 7 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 Duke Energy. Developer shall have no property interest in the decorative street signs and street lights. Section 7. Assignment of Agreement. Upon Developer's 100% completion of the Development (no onsite construction occurring or equipment remaining) and turn-over to the Development's Homeowners' or Community Association ('`Association"), Developer shall assign this Agreement to the Association and the Association shall be responsible for the Developer's obligations and commitments contained herein. Section 8. 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 9. 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 10. Entire Agreement; Headings. 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 11. 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 terminate this Agreement, modify this Agreement with the Association's consent, or remain in the Agreement as modified by the court. Section 12. 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. Said rights and limitations shall be deemed fully incorporated herein by this reference. Section 13. 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. Form 04/12 Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs—Amberly (KB Homes) Page 4 of 7 (a) If to the City: City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708-2799 407-327-5976 (Phone) 407-327-6695 (Fax) (b) If to Developer: KB Home Orlando, LLC. 9102 Southpark Center Loop #100 Orlando, FL 32819 407-587-3497 (Phone) - - (Fax) Section 14. 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 15. City's Right to Seek Equitable Relief and Special Assessment. Developer agrees, acknowledges and recognizes that any breach of this Agreement by Developer may result in irreparable harm to the City. Developer 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 Developer fails to make any payments that are required herein, Developer 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 property owners within the Development. In the event that the City determines that Developer has not made the payments required by this Agreement, the City reserves the unconditional right to assess Developer and the Development's individual property owners for Developer's costs for the decorative street signs and street lights. In the event the City is required to initiate an assessment, Developer agrees to fully support the assessment and Developer shall not contest, challenge or intervene in the assessment process. Further, in the event that Developer defaults on any street light account with Duke 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 16. 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. Form 04/12 Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs—Amberly (KB Homes) Page 5 of 7 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. WITNESSES: DEVELOPER /// ‘..140/'../.11111111P BY: / f /W / - 5�1/41� Aliths,'s► 31 Print Name ©iCed, 6 F bw„,c) E )) Print Name STATE OF FLORIDA COUNTY OF 0/kta.-e.- ,( The foregoing instrument was acknowledged before me this �/ day of AvefrCei , 20/3 , by /)(10L Sfro% V. , who executed the foregoing instrument and acknowledged before me that he executed the same for the uses and purposes therein expressed and p who is personally known to me or ❑ who has produced as identification and who did not take an oath. (NOTARY SEAL) el MICHAEL EDWARD STEPHENS Ik ' '= MY COMMISSION#EE012116 Notary Public Signature '�± EXPIRES July 27,2014 /yj) 007)398-0153 FlondallotaryServae.com , �l-v ,4/ S2 - h 4 Typed or Printed Notary Mine tN ' . -, CITY OF WINTER SPRINGS, {A .l^C\; GZs L a Florida Municipa Corporation: Print Name ,,. _ By: Norm 04/12 Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs—Amberly (KB Homes) Page 6 of 7 City Manager Print Name STATE OF FLORIDA COUNTY OF SEMINOLE The foregoing instrument was acknowledged before me this otO day of IVDVe 1 bel , 20 b, by Kev-in sm. 1--Or\ , City Manager of Winter Springs, Florida, who is personally known to me. (NOTARY SEAL) 4 4� , A2111 A U,.. Notary Pudic State or Florida Notary P is Signature Sarah J Hart ,a . • �.p 71 My Commission FF 030064 � i ar1� 'P p� „.04 Expires 06/20/2017 Sar&h + H Typed or Printed Notary Name Form 04/12 Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs—Amberly(KB Homes) Page 7 of 7 Progress Energy Lighting Proposal PE Contact: Cecil Roberts, Jr. WR 316157 Address: 2801 W S.R 426 Oviedo, Fl 32765 Phone: 404-359-4435 December 3, 2012 Project Details Scope of Request Customer: KB Home Orlando, LLC Install 12-Victorian streetlight poles and 12- Biscayne fixtures Account: 24209-82085 Site: Amberly Contact: Cecil Roberts, Jr. Phone: 407-359-4435 Per Unit Quantity Product Description Rental Maint. Fuel& Unit Sub-Total Required Fixtures and Poles Energy Total 12 100W HPS BISCAYNE L95 $14.17 $1.72 $3.58 $19.47 $233.64 12 16'VICTORIAN II SNGL PLBC16V $13.07 $0.00 $0.00 $13.07 $156.84 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Rental,Maintenance,F&E Totals: $326.88 $20.64 $42.96 Project Estimated Monthly Rental $390.48 Summary t Deposit $781.00 Estimates valid for 30 days and subject to change. Totals + CIAC $5,285.38 Estimated Monthly Rental excludes applicable taxes, franchise fees and any customer charges. t Deposit- The deposit amount equals approximately two months of the monthly rental and will be billed to you separately. 4 CIAC - The invoice for the Contribution of Aid in Construction will be mailed to you separately upon approval of this proposal and payment is due before the work can be released to scheduling of construction. In order for us to proceed with the above proposed lighting deslun we will need an authorized signature on this proposal and any other required documents enclosed. Please return these signed documents to the mailing address above or email the scanned PDF if instructed. The CIAC charge is subject to change after 30 days or in the event you request or cause any changes to this proposal. Progress Energy will call for locate of all public facilities.Any customer owned utilites would need to be located and marked at your expense If any oral!of these lighting facilities will eventually be submitted to a governmental agency for inclusion into a taxing district,MSTU or MSBU special assessment program,ribose verify that these facilities meet the requirements within that jurisdiction.Should the agency not accept these facilities into their program,the entity who signs the Lighting Service Contract will remain responsible for payment. ?!izNil )-illy for you, i(� / t ti; ' ;o R'f;i rtlf, io' )1„ rill;, lip rt,l R..`l lf� ■1iP, j("l,t {ill till*, or.;) 0 Authorized Signature Date (Please sign and date to approve this proposal and return to the mailing address above) Progress Energy SECTION NO.VII FIFTH REVISED SHEET NO.7.110 CANCELS FOURTH REVISED SHEET NO.7.110 Page 1 of 4 LIGHTING SERVICE CONTRACT ACCOUNT NUMBER 24209-82085 WORK ORDER NUMBER 316157 CUSTOMER NAME:KB HOME ORLANDO,LLC SERVICE LOCATION(S):AMBERLY,PARCEL 14B PEFI CONTACT CECIL ROBERTS,JR. (Street address,city/county,Company account number if established) This Lighting Service Contract("Contract")is hereby entered into this 16th day of November 2012,between Progress Energy Florida, Inc. (hereinafter called the Company) and KB Home Orlando, LLC(hereinafter referred to as the "Customer") for lighting service at the above location(s). The Customer agrees to receive and pay for lighting service from the Company in accordance with the rates, terms and provisions of the Company's Rate Schedule LS-1,or its successor, as the same is on file with the Florida Public Service Commission (FPSC)and as may be amended and subsequently filed with the FPSC. To the extent there is any conflict between this Contract and the Lighting Service Rate Schedule, the Lighting Rate Schedule shall control. The Customer further understands that service under this rate shall be for an initial term of ten(10)years and shall continue hereafter until terminated by either party upon written notice sixty(60)days prior to termination. The Company shall install the following facilities(hereinafter called the Facilities): Fixture Type and Number Installed: 12- Biscayne Pole Type and Number Installed: 12 - Victorian Additional facilities: ISSUED BY: Javier J.Portuondo,Manager,Regulatory Services-Florida Form LS-1 EFFECTIVE:January 1,2006 ,4 Progress Energy SECTION NO.VII THIRD REVISED SHEET NO.7.111 CANCELS SECOND REVISED SHEET NO.7.111 Page 2 of 4 Rate per Month: The monthly charges consist of the items below. These charges may be adjusted subject to review and approval by the Florida Public Service Commission. Customer Charge Pole Charge Light Fixture Charge Light Fixture Maintenance Charge Energy and Demand Charge: Non-fuel Energy Charge Plus the Cost Recovery Factors listed in Rate Schedule BA-1,Billing Adjustments**, except the Fuel Cost Recovery Factor: See Sheet No.6.105 and 6.106 Fuel Cost Recovery Factor**: See Sheet No.6.105 **Charges are normally revised on an annual basis. Additional Charges: Certain additional charges may also apply to the installation. Gross Receipts Tax Factor: See Sheet No.6.106 Right-of-Way Utilization Fees: See Sheet No.6.106 Municipal Tax: See Sheet No.6.106 Sales Tax: See Sheet No.6.106 THE CUSTOMER AGREES: 1. To purchase from the Company all of the electric energy used for the operation of the Lighting System. 2. To be responsible for paying,when due,all bills rendered by the Company pursuant to the Company's currently effective Lighting Rate Schedule LS-1,or its successor,for facilities and service provided in accordance with this Contract. 3. To be responsible for trimming trees that may either obstruct the light output from fixture(s)or that obstruct maintenance access to the facilities. IT IS MUTUALLY AGREED THAT: 4. Requests for exchanging facilities,upgrades,relocations,etc.are subject to Section III,paragraph 3.05,of the Company's General Rules and Regulations Governing Electric Service. 5. The Company does not guarantee continuous lighting service and will not be liable for damages for any interruption, deficiency or failure of service, and reserves the right to interrupt service at any time for necessary repairs to lines or equipment. Nothing in this Contract is intended to benefit any third party or to impose any obligation on the Company to any such third party. 6. Installation shall be made only when, in the judgment of the Company,the location and the type of the facilities are,and will continue to be,easily and economically accessible to the Company's equipment and personnel for both construction and maintenance. In the event the Customer or its contractor, subcontractor or other agent changes the grading,which requires the Company to move its facilities or otherwise incur costs to ensure compliance with applicable code requirements,Customer shall compensate the Company for all such costs incurred by the Company to comply with any applicable code requirements. In the event Customer fails to pay the Company within 30 days of the completion of such work,Customer shall pay the Company any amounts owing the Company,including interest and any attorneys and other fees and costs the Company incurs to collect any amounts owed to the Company. 7. Modification of the facilities provided by the Company under this Contract may only be made through the execution of a written amendment to this Contract. ISSUED BY: Javier J.Portuondo,Manager,Regulatory Services-Florida LS-1 EFFECTIVE: January 1,2006 ek Progress Energy SECTION NO.VII THIRD REVISED SHEET NO.7.112 CANCELS SECOND REVISED SHEET NO.7.112 Page 3 of 4 8. The Company will, at the request of the Customer, relocate the lighting facilities covered by this Agreement, if provided sufficient rights-of-way or easements to do so. The Customer shall be responsible for the payment of all costs associated with any such Customer-requested relocation of the Company's lighting facilities. 9. The Company may,at any time, substitute for any luminaire/lamp installed hereunder another Iuminaire/lamp which shall be of at least equal illuminating capacity and efficiency. 10. The Customer agrees to take responsibility for the cost incurred to repair or replace any fixture or pole which has been willfully damaged. The Company shall not be required to make such repair or replacement prior to payment by the Customer for damage. 11. The Company will repair or replace malfunctioning lighting fixtures maintained by the Company in accordance with Section 768.1382,Florida Statutes(2005). 12. This Contract shall be for a term of ten (10)years from the date of initiation of service. The date of initiation of service shall be defined as the date the first lights are energized. At the end of the term of service, a new Contract will be required. 13. Should the Customer fail to pay any bills due and rendered pursuant to this Contract or otherwise fail to perform the obligations contained in this Contract, said obligations being material and going to the essence of this Contract, the Company may cease to supply electric energy or service until the Customer has paid the bills due and rendered or has fully cured such other breach of this Contract. Any failure of the Company to exercise its rights hereunder shall not be a waiver of its rights. It is understood, however, that such discontinuance of the supplying of electric energy or service shall not constitute a breach of this Contract by the Company, nor shall it relieve the Customer of the obligation to perform any of the terms and conditions of this Contract. 14. If the Customer no longer wishes to receive service under this schedule, the Customer may terminate the Contract by giving the Company at least sixty (60)days advance written notice to the Company. Upon early termination of service, the Customer shall pay an amount equal to the remaining monthly customer charges and remaining pole and fixture lease amounts for the term of the contract. The Customer will be responsible for the cost of removing the facilities. 15. In the event of the sale of the real property upon which the facilities are installed, or if the Customer's obligations under this Contract are to be assigned to a third party, upon the written consent of the Company , this Contract may be assigned by the Customer to the Purchaser or to the third party. No assignment shall relieve the Customer from its obligations hereunder until such obligations have been assumed by the Purchaser or third party and agreed to by the Company. 16. This Contract supersedes all previous contracts or representations, either written, oral or otherwise between the Customer and the Company with respect to the facilities referenced herein and constitutes the entire Contract between the parties. This Contract does not create any rights or provide any remedies to third parties or create any additional duty,obligation or undertakings by the Company to third parties. 17. This Contract shall inure to the benefit of, and be binding upon the successors and assigns of the Customer and the Company. 18. This Contract is subject to the Company's Tariff for Retail Service, or as they may be hereafter revised, amended or supplemented. In the event of any conflict between the terms of this Contract and the provisions of the Company's Tariff for Retail Services, the provisions of the Company's Tariff for Retail Service and FPSC Rules shall control, or as they may be hereafter revised,amended or supplemented. ISSUED BY: Javier J.Portuondo,Manager,Regulatory Services-Florida LS-1 EFFECTIVE: January 1,2006 t' progress Energy SECTION NO.VII THIRD REVISED SHEET NO.7.113 CANCELS SECOND REVISED SHEET NO.7.113 Page 4 of 4 19. The obligation to furnish or purchase service shall be excused at any time that either party is prevented from complying with this Contract by strikes,lockouts,fires,riots,acts of God,the public enemy,governmental or court actions,lightning, hurricanes,storms,floods,inclement weather that necessitates extraordinary measures and expense to construct facilities and/or maintain operations,or by any other cause or causes not under the control of the party thus prevented from compliance,and the Company shall not have the obligation to furnish service if it is prevented from complying with this Contract by reason of any partial,temporary or entire shut-down of service which,in the sole opinion of the Company,is reasonably necessary for the purpose of repairing or making more efficient all or any part of its generating, transmission,distribution or other electrical equipment. 20. In no event shall the Company, its parent corporation, affiliate corporations, officers, directors,employees, agents, and contractors or subcontractors be liable to the Customer, its employees, agents or representatives, for any incidental, indirect, special, consequential, exemplary, punitive or multiple damages resulting from any claim or cause of action, whether brought in contract,tort(including,but not limited to, negligence or strict liability),or any other legal theory. IN WITNESS WHEREOF,the parties hereby caused this Contract to be executed in triplicate by their duly authorized representatives to be effective as of the day and year first written above. Charges and Terms Accepted: PROGRESS ENERGY FLORIDA,INC. Customer(Print or type name of Organization) By: By: 4.. • 24. (Signature) (S 'nature) Cecil Roberts,Jr. (Print or type name) (Print or type name) Title: Title:Distribution Design Specialist ISSUED BY: Javier J.Portuondo,Manager,Regulatory Services-Florida LS-1 EFFECTIVE: January 1,2006