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HomeMy WebLinkAboutMeritage Homes of Florida Agreement (Neighborhood Street Sign and Light Improvement)-2014 03 26 NEIGHBORHOOD STREET SIGN AND LIGHT IMPROVEMENT AGREEMENT This Neighborhood Street Sign and Light Improvement Agreement ("Agreement") is made and entered into this ( th day of In(ri'C1^ , 2014, by and between the City of Winter Springs, a Florida municipal corporation ("City"), and Meritage Homes of Florida, Inc., a Florida Corporation ("Developer"). WITNESSETH: WHEREAS, Developer is the developer of Seven Oaks, 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, Fonn 04112 Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs—Seven Oaks 2014 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 $13.70. 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: " ,, \ - • . . • :•:". • Aesesiation.. • Y_ .. . . .._. • \ \ Form 04/12 Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs—Seven Oaks 2014 Page 2 of 7 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 36 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—Seven Oaks 2014 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—Seven Oaks 2014 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) (b) If to Developer: Meritage Homes of Florida, Inc. Attn: Clint Szubinski, Div. President 5337 Millenia Lake Blvd. #410 Orlando, FL 32839 407-712-8664(Phone) With a copy to: Meritage Homes of Florida, Inc. Attn: Regional Counsel 17851 N. 85th Street, Suite 300 Scottsdale, AZ 85255 480-515-8008 (Phone) 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. Form 04/12 Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs—Seven Oaks 2014 Page 5 of 7 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. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. WITNESSES: DEVELOPER MERITAGE HOMES OF FLORIDA,INC., �1 g-r got-x.6 F : ida rho Print Name AIIPA �— glop- Clint Szubinski, Divisio•4!sident Print Name STATE OF FLORIDA COUNTY OF OR..AK1(sE The foregoing instrument was acknowledged before me this 2b day of Mg2C4-i , 20 t , by Clint Szubinski, in his 9dpacity as Division President of Meritage Homes of Florida, Inc., a(Florida) Corporation, and ® who is personally known to me or❑ who 1F P Y has produced a Florida Driver's License as identification and who did not take an oath. (NOTARY SEAL) _A No a ublic Signs e Notary Public State of Florida ��NET ebya . Janet Boyce Typed or Printed Notary Name ikk• li,*611 My Commission FF 103839 Expires 03/19/2018 Form 04/12 Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs—Seven Oaks 2014 Page 6 of 7 gi /� ) CITY OF WINTER SPRINGS, A ToA, L oc%c,„ fl a Florida Municipal C:_po ation Print ame ire // it__��- Kev' L. Smith, ' °l ana er g C/J , S Gal/cwe C.- Print Name STATE OF FLORIDA COUNTY OF SEMINOLE 20 VThe foregoing ip trument was acknowledged before me thi day of (el, , -by 94K L-.`+� -f ... , City Manager of Winter Springs, Florida, who is personally known to me. (N t, AR S r)'ubuo Stet.of Fbflda s • a Pu ,r�_nature ' Andres os o � A �� � ✓ Typed or Printed Notary Name Form 04,12 Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs-Seven Oaks 2014 Page 7 of 7 Exhibit '1' DUKE ` °° ENERGY Lighting Proposal DE Contact: DEREK CARR WR 541403 Address: 2801 W S.R 426 Oviedo,Fl 32765 Phone: 407-359-4824 September 30, 2013 Project Details Scope of Request Customer: MERITAGE HOMES INSTALLATION OF 36 NEW STREET LIGHTS WITHIN SEVEN OAKS SUBDVISION Account: 9202700417 Site: SEVEN OAKS SUBDIVISION Contact: DANTE FRAIEGARI Phone: 407-571-0951 Per Unit Quantity Product Description Rental Maim. Fuel& Unit Sub-Total Required Fixtures and Poles Energy Total 36 100W HPS BISCAYNE L95 $14.17 $1.72 $3.03 $18.92 $681.12 36 16'COLONIAL SINGLE PLBCI6BS $8.99 $0.00 $0.00 $8.99 $323.64 $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,FIE Totals: $833.76 $61.92 $109.08 Project Estimated Monthly Rental $1,004.76 Summary t Deposit $2,010.00 Estimates valid for 30 days and subject to change. Totals p CIAC $22,363.62 Estimated Monthly Rental excludes applicable taxes,franchise fees and any customer charges. t Deposit-The required deposit(applied separately to your lighting NO will equal approximately two months of the monthly rental bill,but no less than$25.00 and subject to change upon review of the account's existing deposit. 4 CIAC• The invoke for the Contribution in Aid of 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 Ilahtina deslon we will need an authorized Miniature on this proposal and any other reauired documents enclosed. Do notssmit payment with this form and do not fax, Return these sinned documents to the mallino address above or email the color 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. Duke Energy will call for locate of all public facilities.My customer owned utilites►mould need to be located and marked at your expense. if any or all of these lighting facilities will eventually be submitted to a governmental agency for inclusion into a taxing district,MSTU or MSBU special assessment program,please 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 Thank you for your lighting request. We look forward to working with you on this project. Authorized Signature Date (Please sign and date to approve this proposal and return to the mailing address above) daik DUKE 1, ENERGY. Duke Energy St. Petersburg, Florida September 30, 2013 INVOICE MERITAGE HOMES OF FL INC Please mail remittance and signed copy ATTN: DANTE FRAIEGARI of Invoice to: 5337 MILLENIA LAKES BLVD Duke Energy Florida, Inc STE 160 Attn: CIAC Central BAY72 ORLANDO FL 32839 P.O. Box 14042 St. Petersburg, FL 33733 Service Address: Account Number: 000 SHEPARD RD LITE, 07520-90430 WINTER SPRINGS FL 32708 WMIS WR Number: 551403 Work Description: SEVEN OAKS SUBDIVISION - STREETLIGHTS CIAC Due: $22,363.62 This invoice reflects Contribution in Aid of Construction (CIAC)for the above referenced work greement: The customer acknowledges receipt of invoice cover letter and further understands ustomer is responsible for removing all obstructions from the route along which the Company's acilities are to be installed. Company shall not be responsible for any damage to shrubs, trees, grass, od or any other foliage or property caused by the Company's equipment during installation of the ompany's facilities. In addition, the Company shall not be responsible for the repair or replacement of nderground facilities on the Customer's property damaged during the installation of the Company acilities, unless, prior to the Company's construction, the owner of the facilities clearly identified and arked the location of such facilities pursuant to any applicable statutory requirements concerning nderground facility damage prevention. The undersigned hereby authorizes Duke Energy to perform this work with necessary labor, facilities nd equipment and acknowledges the Invoice amount becomes invalid if the signed agreement is not eceived by Duke Energy on or before 30 days from the date of this invoice. Customer Signature Date: Name (Please print or type) MERITAGE HOMES OF FL INC ATTN: DANTE FRAIEGARI 5337 MILLENIA LAKES BLVD STE 160 ORLANDO FL 32839 0201 TITI..anew Luna 0■67.00.671. n.,..l a.•.. 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