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HomeMy WebLinkAbout2009 01 12 Regular 602 Neighborhood Street Sign and Light Improvement AgreementCOMMISSION AGENDA I TE INFORMATIONAL M 6 02 PUBLIC HEARING REGULAR X January 12, 2009 MGR /DEPT Meeting Authorization REQUEST: Community Development Department, Urban Beautification Services Division, is requesting the City Commission review the Neighborhood Street Sign and Light Improvement Agreement (NSSLIA) and determine if a change is necessary in the decorative street sign repair escrow rate of twenty five percent (25%), which is held by the City for decorative street sign maintenance and repairs. PURPOSE: This agenda item is needed for the City Commission to review the repair escrow required by the NSSLIA and to determine if a change is necessary to ensure the City's ability to perform timely decorative street sign maintenance and repairs for communities who have upgraded their street signs as part of the Decorative Street Sign and Light Program. CONSIDERATIONS: In early 2005, City Manager Ron McLemore and Staff initiated discussions with City Attorney Anthony Garganese regarding the creation of an agreement that would allow for Homeowner's Associations to upgrade `standard' street signs and lighting provided by the City, located along public roadways, to a more decorative product as an enhancement to the community. The agreement would need to address several issues including: (1) costs related to decorative street signs and light upgrades, (2) the cost of routine maintenance to be funded by the requesting Homeowner's Association, and (3) a legal instrument that would guarantee maintenance of the improvements should a Homeowner's Association default in their responsibilities related to the upgrades. 011209_COMM_REGULAR_602_StreetS ignAgreementEscrow As a result, the Neighborhood Street Sign and Light Improvement Agreement was completed and the City's first Decorative Street Sign and Light Program (DSSLP) was established. Currently, the City's DSSLP has two (2) primary participant groups: 1. New Development -Planners of new developments collaborate with the City for the installation of decorative street signs, decorative street lights and internal lighting on private property to provide a uniform beautification product for the community. Discussions with Staff normally begin during the conceptual plans review stage of the Development Review Process. 2. Community Retrofits -Homeowner's Associations can partner with the City in retrofitting street signage and street lighting along public roadways as a beautification project using the NSSLIA. Community representatives usually approach the City to request improvements in their neighborhoods in response to their satisfaction with other recent beautification projects located within their immediate area. On November 28, 2005, Staff presented, and the City Commission approved Agenda Item 508, which authorized Winding Hollow H.O.A. to install decorative street lighting within the Winding Hollow subdivision under the NSSLIA. On January 23, 2006, City Staff presented, and the City Commission approved Agenda Item 301, which authorized Glen Eagle H.O.A. to install decorative street lighting and street signs under the same NSSLIA. As part of the DSSLP, Tuscawilla Lighting and Beautification District also recently completed their Phase 2 Beautification Project which included the upgrading of street signs and lighting along nine (9) major roadways throughout the Tuscawilla subdivision. On December 8, 2008, at a regular City Commission Meeting, during public input, Mark Johnson, President of Winding Hollow H.O.A., communicated his association's interest in installing decorative street signs throughout their subdivision, but also voiced concerns regarding the sign maintenance and repair escrow requirements of the NSSLIA. The 2 O 1 1209_COMM_REGULAR_602_StreetS ignAgreementEscrow escrow rate is currently set at twenty-five percent (25%) of the contract value of each sign project. Mr. Johnson suggested the City Commission reconsider this policy and reduce the current escrow requirement, due to his perception of the infrequency of street sign repairs required during the past seven (7) years in Winding Hollow, and alleged that the current 25% escrow rate represented a financial hardship to the Winding Hollow Community. Staff appreciates Mr. Johnson's concerns regarding the 25% escrow; however, Staff believes that a method must be established to cover the realistic maintenance costs in order to prevent the deterioration of the value added benefits of this enhancement. In arriving at a suitable maintenance budget, the following information must be considered. 1. On smaller projects with less than 30 decorative street signs, as is the case in Winding Hollow, costs for repairs and maintenance could exceed the available escrow balance, necessitating that the City absorb related shortfalls, or wait for additional funding from the Homeowner's Association, potentially causing a devaluation of the project due to the necessity of reverting to standard street signs installations until the additional funding becomes available. 2. The cost of maintaining decorative street signs is far greater than for the standard signs currently used in Winding Hollow. Decorative street signs require more intensive routine maintenance involving touch-up painting, adjustments and repairs that are necessitated as a result of damages caused by lawn equipment, vandalism, vehicles and environmental conditions. 3. Costs for decorative street sign replacement parts will likely increase in the future requiring the City to also increase the escrow requirement to match. 4. Treating Winding Hollow differently from other neighborhoods presents a difficult equity issue for the City. 3 011209_COMM_REGULAR_602_StreetS ignAgreementEscrow ALTERNATIVES 1. Maintain Current Ratio. a) This would ensure adequate funding for repairs, maintenance and unexpected sign additions or replacements. b) Some Homeowner's Associations may not be able to participate in the program due to budgetary constraints. 2. Modify Current Ratio. a) More Homeowner's Associations may be able to participate in the program. b) A fair method of calculation would need to be established based upon the prior history of sign repairs and replacements for a specific subdivision. c) The escrow may be depleted prior to replenishment of funding causing the City to install standard street signs until funding becomes available. 3. Turn Over Responsibility To Homeowner's Association. a) The City would not be required to manage escrow funding for multiple decorative street sign projects. b) The City would lose control over the quality of roadway street signs in project areas while being responsible for continued compliance with Department of Transportation requirements for street signage. RECOMMENDATION: It is recommended that the City Commission review the information contained in this agenda item and provide Staff with any direction the City Commission deems appropriate. 4 011209_COMM_REGULAR_602_StreetS ignAgreementEscrow ATTACHMENTS: A. Neighborhood Street Sign and Lighting Improvement Agreement. COMMISSION ACTION: Attachment 'A' 01/12/09 Regular 602 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, Florida, a Florida municipal corporation ("City") and ("Association") a Florida corporation WITNESSETH: WHEREAS, the Association is a community or homeowner's association located within the City of Winter Springs, Florida; and WHEREAS, the City is obligated provide 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 and the City desire 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 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 "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 names and other traffic symbols and/or language is written such as "stop" and speed limits. Form 08/08 Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 1 of 7 2.3 `Street Light 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, 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 $ 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 Proiect. 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 ~~1". 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 ~~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 Florida Department of Transportation and the City of Winter Springs, and if decorative street lights are installed, they must be provided by Progress Energy. Section 4. Association's Obligations. The Association 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", the Association agrees to fully cooperate with the City to purchase, install, and maintain 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. (B) Prior to the City purchasing the decorative street sign component of the Project, the Association agrees to pay a deposit to be held in escrow by the City in the amount of Dollars ($ )which represents a minimum of one hundred percent (100%) of the estimated cost of the street sign component of the Project, excluding the cost of sign plates. (C) Within seven (7) days of the City awarding a 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 any remaining amount that is due under the Street Sign Contract, if any, 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. FoR„ oaios Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 2 of 7 (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 of the street sign including, but not limited to, the foundation, framing, and pole will be the responsibility of the Association. (E) During the term of this Agreement, the Association agrees to maintain with the City anon-interest bearing sign repair escrow account ("Sign Escrow Account"). At all times, the Association agrees to maintain a balance equal totwenty-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 of this 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 recoverthe 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 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. Fo~» osios Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 3 of 7 Section 5. Citv's Obligations. Subject to the Association's compliance with its payment responsibilities set forth under this Agreement, the City agrees to perform the following obligations: 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 Light Base Rate. 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 the Association 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 the Association's street light plan into conformance with Progress Energy's standard photometric requirements. Section 6. Title to Street Signs and Lights, The right, title and interest to 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; 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). Form osioa Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 4 of 7 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 consent, or remain in the Agreement as modified by the court. Section 11. 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. 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: 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 Right to Seek Eauitable 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 members and that said special benefit is shared proportionately by all the members of the Fop„ oaios Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 5 of 7 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. WITNESSES: THE ASSOCIATION By: Print Name Print Name Print Name CITY OF WINTER SPRINGS, a Florida Municipal Corporation: By: Ronald W. McLemore, City Manager Print Name Foy„ ~ osios Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 6 of 7 STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this day of 20 by 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. (NOTARY SEAL) Notary Public Signature Typed or Printed Notary Name STATE OF FLORIDA COUNTY OF SEMINOLE The foregoing instrument was acknowledged before me this day of 20_, 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 FoR» osios Neighborhood Street Sign and Light Improvement Agreement City of Winter Springs Page 7 of 7