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HomeMy WebLinkAboutJesup's Reserve Townhomes Owners Association Neighborhood Street Light and Sign Improvement Agreement - 2008 08 06NEIGHBORHOOD STREET LIGHT AND SIGN IMPROVEMENT AGREEMENT This Neighborhood Street Light and Sign Improvement Agreement ("Agreement") is made and entered into this ~,~ day of ~~_, 2008, by and between the City of Winter Springs, Florida, a Florida municipal cpal c-~tion ("City") and Jesup's Reserve Townhomes Owner's Association, Inc., a Florida non-profit 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 lights and signs 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 of the citizens of Winter Springs; and 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 "Street Liglit Base Rate" shall mean the actual cost charged by Progress Energy to maintain and operate a standard concrete pole and cobra fixture. Said costs include electric, Neighborhood Street Light/Sign Improvement Agreement City of Winter Springs Page 1 of 6 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 $12.64 (Twelve and 64/100 dollars). The parties acknowledge that said base rate is subject to periodic adjustments by Progress Energy and the City of Winter Springs. Section 3. Decorative Street Lights. The City and Association agree that the Association desires to purchase, install, maintain and operate the decorative 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 lights are installed, they shall be provided by Progress Energy. 3.1 Association's Obligations. The Association agrees to perform the following obligations: 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 Ciry to acquire, install, maintain, and operate 43 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. 3.2 City's Obligations. Subject to the Association's compliance with its payment responsibilities set forth under this Agreement, the City agrees to perform the following: (A) 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 Light Base Rate. The City shall make the reimbursement on a monthly basis. (B) The City acknowledges that 43 street lights were required as part of the utility layout plan, as provided in "Exhibit 1." The City further acknowledges that at the effective date of this Agreement, 35 street lights are installed within the Jesup's Reserve Development ("Development"}. The City agrees to reimburse the Association, in accordance with section 3.2(A} of this Agreement, for the additional eight (8) street lights to be installed in the future. Neighborhood Street Light/Sign Improvement Agreement City of Winter Springs Page 2 of 6 (C) In the event that any of the eight (8) street lights are installed by the City, the Association, or a substitute developer that completes the Development, the reimbursement provisions of this Agreement shall apply. (D) Additionally, in the event the Association installs additional street lights in excess of the approved 43 street lights, 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) are required to bring the Association's street light plan into conformance with Progress Energy's standard photometric requirements. Section 4. Decorative Street Signs. The parties acknowledge and agree that decorative street signs are required to be installed within the Development. The parties further acknowledge and agree that the Association is currently being operated under a receiver due to the bankruptcy of Levitt & Sons LLC, of Seminole County, and the Association is not in a position to install the decorative street signs while the Development is in receivership. As such, the parties agree that such signs shall be installed and maintained throughout the Development by the Association, within one year of the homeowners taking control of the Association. Nothing contained in this Agreement shall be construed as releasing the Association of its obligations to install decorative street signs. Section 5. Title to Street Lights. 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 lights. Section 6. 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 7. 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 8. 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 9. Severability. If any provision of this Agreement shall beheld 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 Light/Sign Improvement Agreement City of Winter Springs Page 3 of 6 consent, or remain in the Agreement as modified by the court. Section 10. 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 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. Section 11. 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: Andrew Bolnick Association -Board of Directors 1 Southeast 3rd Avenue, Suite 1980 Miami, FL 33131 305-789-4282 (Phone) 305-347-4077 (Fax) Section 12. 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 13. City's Right 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 Neighborhood Street Light/Sign Improvement Agreement City of Winter Springs Page 4 of 6 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 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 lights and street signs. 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 14. 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. NESSES: ~. ~~~ ,~~~ 1 `~~~J V Print Narrlc THE ASSOCIATION 7 ~,~r -e. ~-r'~-a~- /~ Print Name Neighborhood Street LiglidSign Improvement Agreement City of Winter Springs Page 5 of 6 _-~ Print Name ,~ J G. ~ 1 L~ g a ~ ~n U \\ ~~\~.~ Print Name STATE OF FLO~ID~ COUNTY OF ~~ CITY OF WINTER SPRINGS, a Florida Municipal Corporation: r,~ Ronald W. McLelmore, City Manager The foregoing instrument was acknowledged before me this ~ day of 1` , 2008, by C~,~Q~~ ~(~l,nt C~_, ,who executed the foregoing instrument and acknowledged before me that he executed the same for the uses and purposes therein expressed and, who is personally known to me or ^ who has produced as identification and who did not take an oath. :o~-t`~'~it,. Notary Public State or Florida 'ir, Erica Anderson ~ My Comm~ss~on OD79S)OS ~'to~~o~ Expires08r08~201? STATE OF FLORIDA COUNTY OF SEMINOLE ~ ~ ~~~~ Notary Public Signature c~,lc,~ ~~a~~sc~J Typed or Printed Notary Name fN The foregoing instrument was acknowledged before me this ~ ~ day of , 2008, by RONALD W. MCLEMORE, City Manager of Winter Springs, Florida, who i ersonally known to me. 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