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HomeMy WebLinkAboutExhibitLOCATION: 7924 NE 2nd AVENUE MIAMI, FLORIDA 33138 FOLIO No.: O 1-3112-101-0010, 01-3112-011-0100 Prepared by and return recorded copy to: City of Miami Department of Resilience and Public Works Attention: Juvenal Santana, P.E., CFM Director of Public Works 444 SW 2nd Avenue, 8th Floor Miami, FL 33130-1910 COVENANT RUNNING WITH THE LAND ("COVENANT") THIS COVENANT made and entered into this 12 day of May , 2023, by and between MD 79TH HOLDING, LLC, A FLORIDA LIMITED LIABILITY COMPANY AND MD 79TH HOLDING II, LLC A FLORIDA LIMITED LIABILITY COMPANY , (hereinafter called COVENANTORS) and the CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida, located in Miami -Dade County, hereinafter called CITY; and WHEREAS, COVENANTORS are the fee OWNERS of: See attached Exhibit "A" containing a legal description of the property (hereinafter called PROPERTY); and WHEREAS, COVENANTORS have requested permission from CITY to construct and maintain nonstandard improvements described in Exhibit "B" (hereinafter collectively called "IMPROVEMENTS") within the public right-of-way on NE 79th Street from NE 1st Avenue to NE 2°d Avenue, adjacent to PROPERTY; and WHEREAS, NE 79th Street from NE 1st Avenue to NE 2nd Avenue is under jurisdiction of the Florida Department of Transportation (hereinafter called "FDOT"); and WHEREAS, FDOT is requiring that CITY act as permittee for the construction and maintenance of the improvements within FDOT right-of-way; and WHEREAS, CITY has required the COVENANTORS to execute and deliver to CITY this instrument as a condition precedent to acting as Permittee and to the granting of said permission. LOCATION: 7924 NE 2nd AVENUE MIAMI, FLORIDA 33138 FOLIO No.: 01-3112-101-0010, 01-3112-011-0100 NOW THEREFORE, in consideration of the permission by CITY to allow the construction and maintenance of the IMPROVEMENTS within the dedicated public right of way by COVENANTORS and in the further consideration of the premises, COVENANTORS do hereby covenant and agree with CITY that COVENANTORS shall, at no cost to the CITY, remove the aforementioned IMPROVEMENTS whenever requested by, and upon thirty (30) days written notice from, the Director of the Department of Resilience and Public Works of CITY. In the event that COVENANTORS, its successors, or assigns fails to remove the IMPROVEMENTS when so requested, the Director of the Department of Resilience and Public Works of CITY shall cause the aforementioned IMPROVEMENTS to be removed at the expense of COVENANTORS; the amount of such removal cost shall be declared and established as a lien on the property of such defaulting COVENANTORS and enforced as any lien of materials furnished and work and labor done provided under the Statutes of the State of Florida, the applicable Codes of the City and the County, and the COVENANTORS voluntarily, knowingly and freely covenant and agree that all recourse or cause(s) of action against the CITY is hereby expressly waived as to any damage caused, direct, indirect, special, consequential or otherwise, to any portion, in whole or in part, of the remainder of COVENANTORS' improvements, resulting from the removal of the aforesaid IMPROVEMENTS from said public - Right -of -Way. COVENANTORS shall provide maintenance of the IMPROVEMENTS, in accordance with the CITY'S standards and specifications. In addition, COVENANTORS agree to accept and assume all obligations and responsibilities being assigned to CITY in that certain FDOT MAINTENANCE MEMORANDUM OF AGREEMENT (hereinafter called "MMOA"), a copy of which is LOCATION: 7924 NE 2nd AVENUE MIAMI, FLORIDA 33138 FOLIO No.: 01-3112-101-0010, 01-3112-011-0100 attached Exhibit "C". In doing so, COVENANTORS accept and assume all obligations and responsibilities pertaining to the IMPROVEMENTS within the PROJECT LIMITS, as is defined by FDOT in the attached MMOA (hereinafter called "FDOT PROJECT LIMITS"). COVENANTORS shall inspect, manage and perform maintenance and repairs of all IMPROVEMENTS located within the FDOT PROJECT LIMITS. COVENANTORS shall further inspect the FDOT PROJECT LIMITS to ensure that no unpermitted IMPROVEMENTS or modifications are installed or constructed, and that any such unpermitted IMPROVEMENTS or modifications are immediately removed, or permitted in accordance with FDOT permitting requirements. Notwithstanding the foregoing, COVENANTORS shall be obligated to remove any IMPROVEMENTS or features within the FDOT PROJECT LIMITS that may cause an unsafe condition to public. COVENANTORS' maintenance and repair obligations shall extend and include all IMPROVEMENTS, located within FDOT PROJECT LIMITS, as is further stipulated in the MMOA. COVENANTORS shall ensure that a clear pedestrian path is maintained at all time in the state right of way and easements, within the FDOT PROJECT LIMITS. For purposes of this COVENANT, the "Clear Pedestrian Path" is defined as an American Disabilities Act (ADA) compliant continuous, unobstructed way of pedestrian passage within the FDOT PROJECT LIMITS, extending horizontally five (5) feet. No IMPROVEMENTS, features, obstructions or encroachments of any kind shall be permitted within the Clear Pedestrian Path at any time, except as may be required, and approved by FDOT, pursuant to the Paragraph hereunder. COVENANTORS' responsibility and maintenance obligations hereunder shall include, but not be limited to: LOCATION: 7924 NE 2nd AVENUE MIAMI, FLORIDA 33138 FOLIO No.: 01-3112-101-0010, O 1-3112-01 1 -O 100 a. Performing routine and regular inspections of the Clear Pedestrian Path surface to ensure that the surface is ADA compliant; b. Identifying damage and/or malfunctions in the surfaces; and repairing and/or replacing damaged areas to ensure surfaces are maintained and that they do not pose safety hazards for the public. c. Ensuring that gaps within the surfaces shall not exceed a quarter (1/4) of an inch. Differential settlement within the concrete/finish surfaces shall not exceed a quarter (1/4) of an inch in depth. d. Undertaking the maintenance and repair (when needed) of proposed detectable warning surface as specified in the FDOT Plans and the latest Standard Specifications For Road And Bridge Construction and in accordance with all applicable FDOT guidelines, standards, and all applicable ADA requirements, as amended from time to time. e. When remedial action is required in accordance with the above requirements, COVENANTORS at they own expense shall complete all necessary repairs within ninety (90) days of the date the deficiency is identified. f. COVENANTORS are responsible for obtaining copies of all applicable rules, regulations, policies, procedures, guidelines, and manuals, and the Project Specification and Special Provisions, as may be amended from time to time. g. Maintaining a service log of all maintenance operations that sets forth the date of the maintenance activity, the location that was maintained, and the work that was performed. h. Submitting Lane Closure Requests to FDOT when maintenance activities will require the closure of the sidewalk or a traffic lane in FDOT right-of-way. Lane LOCATION: 7924 NE 2nd AVENUE MIAMI, FLORIDA 33138 FOLIO No.: 01-3112-101-0010, 01-3112-011-0100 closure requests shall be submitted through the District Six Lane Closure Information System, to the FDOT area Permit Manager and in accordance with the District Six Lane Closure Policy, as may be amended from time to time. COVENANTORS shall indemnify, defend, and hold CITY, its officers and employees, harmless from any claims, demands, liabilities, losses or causes of action of any nature whatsoever arising out of the acceptance by the CITY of this Covenant and/or the use, construction, maintenance and/or removal of the IMPROVEMENTS, or any part hereof, from and against any orders, judgments or decrees that may be entered, and from and against all costs, attorneys' fees, expenses and liabilities incurred in the defense of such claim or in the investigation thereof. COVENANTORS shall indemnify, defend and save CITY, its officers and employees, harmless from and against any and all claims, liability, losses and causes of action, of any nature whatsoever that may arise out of the granting of this Covenant or out of COVENANTORS' activities under this Covenant, including all other acts or omissions to act on the part of COVENANTORS or any person acting for or on COVENANTORS' behalf, and from and against any orders, judgments or decrees that may be entered, and from and against all costs, attorneys' fees, expenses and liabilities incurred in the defense of any such claims or in the investigation thereof or against, any civil actions, statutory or similar claims, injuries or damages arising or resulting from the permitted work or use of the right of way, even if it is alleged that the City, its officials and/or employees were negligent. Additionally, COVENANTORS shall indemnify, defend, and hold CITY, its officers and employees, harmless from any claims, demands, liabilities, losses or causes of action of any nature whatsoever arising out of the acceptance by the CITY of the MMOA with FDOT, or any part thereof or activities thereunder, from and against any orders, judgments or decrees that may LOCATION: 7924 NE 2"d AVENUE MIAMI, FLORIDA 33138 FOLIO No.: O 1-3112-101-0010, 01-3112-011-0100 be entered, and from and against all costs, attorneys' fees, expenses and liabilities incurred in the defense of such claim or in the investigation thereof. COVENANTORS shall keep in full force and effect, at all times during the exercise of this Covenant, a commercial general liability policy of insurance of at least $1,000,000 per occurrence and $2,000,000 aggregate for bodily injury, including death, and property damage. The certificate of insurance should afford coverage for premises and operations liability, products and completed operations, personal and advertising injury liability, and any other endorsements pertinent to the scope of work. The insurance should be primary and non contributory. The insurance and Covenant shall be subject to the approval of the CITY's Risk Manager and the CITY Attorney. The insurance policy shall be procured and premiums paid by COVENANTORS. The effective date of the policy shall be the effective date of the Covenant, and the policy term or any renewals thereof shall remain in effect for the term of the Covenant. The insurance carrier for the policy must be rated no less than A- as to management and no less than Class (V) as to strength by the latest edition of Best's Insurance Guide and must be approved by the CITY's Risk Manager. CITY shall be listed as Additional Insured under the policy. Proof of insurance shall be supplied to the satisfaction of CITY prior to the issuance of any permits. A Certificate of Insurance bearing CITY as "Additional Insured" shall in no way relieve COVENANTORS of the obligation to add CITY as "Additional Insured" to the actual insurance policy. The insurance policy shall provide that CITY be given at least thirty (30) days advance written notice of any material changes, cancellation or non -renewal notification of any policy and, in the event of such material change, cancellation or non -renewal notification, COVENANTORS shall immediately replace said policy with another policy to the satisfaction of LOCATION: 7924 NE 2nd AVENUE MIAMI, FLORIDA 33138 FOLIO No.: 01-3112-101-0010, 01-3112-011-0100 CITY with the receipt of a certificate of insurance for such policy by CITY at least ten (10) days prior to the effective date of the material changes, cancellation or non -renewal of any policy. In the event that CITY is not in possession of same by such date, then CITY shall have the right to immediately secure a similar insurance policy in its name with the total cost of the premium and all monies that may become due during the term of the Covenant being charged to COVENANTORS and CITY shall have the right to declare and establish said costs as a lien on the PROPERTY of COVENANTORS, enforced as any lien provided for under the statutes of the State of Florida. COVENANTORS agree to increase from time to time, as required by the City's Code, the limits of the comprehensive liability insurance policy required to be provided pursuant to this Covenant, upon the written request of CITY. It is expressly understood and agreed that this COVENANT touches and concerns the PROPERTY, and shall be binding upon COVENANTORS, and also upon grantees, theirs, successors -in -interest or assigns of COVENANTORS, and shall be a condition -implied in any conveyance or other instrument affecting the title to the aforesaid property or any portion thereof. Any notice, request, demand, approval or consent given, or required to be given, under this Covenant shall be in writing and shall be deemed as having been given when mailed by United States registered or certified mail (return receipt requested), postage paid, to the other parties at the addresses stated below or at the last changed address given by the party to be notified as hereinafter specified: COVENANTORS: MD 79TH Holding, LLC and MD 79TH Holding II, LLC Attn: Robert Danial 5161 Collins Avenue, PHD Miami Beach, FL ZIP 33140 LOCATION: 7924 NE 2nd AVENUE MIAMI, FLORIDA 33138 FOLIO No.: 01-3112-101-0010, 01-3112-011-0100 CITY: THE CITY OF MIAMI Attention: Director, Department of Resilience and Public Works 444 S.W. 2nd Avenue, 8th Floor Miami, Florida 33130 COVENANTORS herein expressly acknowledge that (a) permission granted by the CITY to construct the IMPROVEMENTS on CITY public right of way is solely for the limited purposes set forth herein and does not constitute a lease and that the rights of the COVENANTORS hereunder are not those of a tenant but is a mere personal privilege to do certain acts on CITY public right of way, (b) the CITY retains dominion, possession and control of the CITY public right of way and can in the event of default by COVENANTORS unilaterally end the permission granted herein to COVENANTORS, without fault or breach or cause whatsoever provided, however, that notice is given to COVENANTORS and COVENANTORS has not cured the event of default within the period of time specified herein after receipt of notice and (c) COVENANTORS does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the CITY public right of way by virtue of its use hereunder or by virtue of any expenditures incurred in connection herewith. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute but one and the same Agreement. The Parties shall be entitled to sign and transmit an electronic signature of this Agreement (Whether by facsimile, PDF, or other electronic transmission), which signature shall be binding on the party whose name is contained therein. [signature page follows] LOCATION: 7924 NE 2nd AVENUE MIAMI, FLORIDA 33138 FOLIO No.: 01-31 12-101-0010, 01-3112-011-0100 Signed, Sealed, Attested And delivered in our presence: FIRST WITNESS: Sign: tt Print Name: c€�`�* 9314" Address: SECOND Sign: Print Name: ii.q.ddt Address: c j6/ ed/da /} .‘060 MA N 4t;- z-(.4/ /-1 STATE OF FLORIDA) COUNTY OF MIAMI-DADE) COVENANTORS: MD 79TH HOLDING, LLC, a Florida Limited Liability Company By: ROBERT R ANIAL Manager -Member MD 79TH HOLDING II, LLC a Florida Limited Liability Company By: ROBEDANML Manager -Member The foregoing instrument was acknowledged befor me by means of physical presence or ❑ online notarization, this I�Ffr„ day of l{ ' , 20/i3, A.D., by Robert Danial, Manager -Member of MD 79TH HOLDIN , LLC, a Florida Limited Liability Company and MD 79TH HOLDING II, LLC a Florida Limi ed ,iability Company, who is personally known to me or who has produced �� ✓%� �as identification. [Notary Seal] "°:! : PAULA RIENTI ; �� • ? MY COMMISSION iNH178199 -��oPo : EXPIRES: January 22, 2026 :;? r,t°' Bolded Thru Notary Public Undervallara ame typed, printed or stamped My Commission Expires: //i - 4024 LOCATION: 7924 NE 2nd AVENUE MIAMI, FLORIDA 33138 FOLIO No.: 01-3112-101-0010, 01-3112-011-0100 CITY OF MIAMI a municipal Corporation of the State of Florida Arthur Noriega, V, City Manager APPROVED AS TO CONTENT: Jenal Santana, P.E., CFM Director of Public Works Department of Resilience and Public Works APPROVED AS TO II URANCE REQUIREMENTS: Anne -Marie Sharpe Director of Risk Management APPROVED AS TO FORM AND CORRECTNESS: Victoria Mendez City Attorney LOCATION: 7924 NE 2nd AVENUE MIAMI, FLORIDA 33138 FOLIO No.: 01-3112-101-0010, 01-3112-011-0100 EXHIBIT A LEGAL DESCRIPTION Tract A of "LITTLE RIVER CENTER" according to the Plat thereof as recorded in Plat Book 102, Page 4, of the Public Records of Miami -Dade County, Florida. LOCATION: 7924 NE 2nd AVENUE MIAMI, FLORIDA 33138 FOLIO No.: O 1-3112-101-0010, O 1-3112-011-0100 EXHIBIT B DESCRIPTION OF NON-STANDARD IMPROVMENTS 1. LANDSCAPE 2. IRRIGATION 3. TREE GRATES LOCATION: 7924 NE 2nd AVENUE MIAMI, FLORIDA 33138 FOLIO No.: 01-3112-101-0010, 01-3112-011-0100 EXHIBIT C MAINTENANCE MEMORANDUM OF AGREEMENT FLORIDA DEPARTMENT OF TRANSPORTATION LANDSCAPE, IRRIGATION AND TREE GRATES MAINTENANCE MEMORANDUM OF AGREEMENT WITH THE CITY OF MIAMI This AGREEMENT, entered into on , 20 , by and between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, an agency of the State of Florida, hereinafter called the DEPARTMENT, and the CITY OF MIAMI, a municipal corporation of the State of Florida, hereinafter called the CITY, and collectively referred to as the PARTIES. RECITALS: A. The DEPARTMENT has jurisdiction over State Road (SR) 934 (NE 79th Street) from NE 1st Avenue to NE 2nd Avenue, which are located within the limits of the CITY; and B. The CITY, pursuant to Permit Number 2022-L-691-00010, has required the Permittee to draft design plans for improvements along SR-934 (NE 79th Street) from NE 1st Avenue to NE 2nd Avenue, the limits of which are described in the attached Exhibit 'A' (the PROJECT LIMITS), which by reference shall become a part of this AGREEMENT; and C. The Permittee will install landscape, irrigation, and tree grates along SR-934, inside DEPARTMENT Right -of -Way, within the PROJECT LIMITS, in accordance with the design plans for Permit Number # 2022-L-691-00010 (the "Project"); and D. It is the intent of the PARTIES for this AGREEMENT to supplement all existing Maintenance Memorandum of Agreement and existing Permits previously executed between the DEPARTMENT and the CITY; and E. The PARTIES to this AGREEMENT mutually recognize the need for entering into an agreement designating and setting forth the CITY's responsibilities with regards to the maintenance of the landscape, irrigation, and tree grates (the "IMPROVEMENTS") within the PROJECT LIMITS; and Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 1 of 13 F. The CITY, by Resolution No. , dated attached hereto as Exhibit 'B', which by reference shall become a part of this AGREEMENT, desires to enter into this AGREEMENT and authorizes its officers to do so. NOW, THEREFORE, for and in consideration of the mutual benefits contained herein and other good and valuable consideration, the PARTIES covenant and agree as follows: 1. RECITALS The recitals in this AGREEMENT are true and correct, and are incorporated herein by reference and made a part hereof. 2. DEPARTMENT RESPONSIBILITIES The PARTIES agree that the execution of this AGREEMENT shall constitute an assignment of all maintenance responsibilities pertaining to the IMPROVEMENTS within the PROJECT LIMITS to the CITY upon the DEPARTMENT's issuance of the executed Permit to the CITY. 3. CITY'S MAINTENANCE RESPONSIBILITIES So long as the IMPROVEMENTS remain in place, the CITY shall be responsible for the maintenance of the same. The CITY shall maintain the IMPROVEMENTS in accordance with all applicable DEPARTMENT guidelines, standards, and procedures, which shall include but shall not be limited to the Maintenance Rating Program Handbook, as may be amended from time to time. Additionally, the CITY shall maintain the landscape in accordance with the International Society of Arboriculture standards, guidelines and procedures, the latest edition of the "Maintenance Rating Program", and Index 546 of the latest DEPARTMENT Design Standards as may be amended from time to time. The CITY shall further maintain the IMPROVEMENTS in accordance with the standards set forth in the Project Plans, and in the Project Specifications and Special Provisions. The CITY's maintenance obligations shall include but not be limited to: 3.1. General Requirements: a. Removing and disposing of litter from PROJECT LIMITS in accordance with all applicable government rules, regulations, policies, procedures, guidelines, and manuals, as amended from time to time. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 2 of 13 b. Removing and disposing of all litter and any other debris resulting from the activities described by 3.1 through 3.3. 3.2. Landscape and Associated Features: a) Pruning all plant materials, which include trees, shrubs and ground covers, and parts thereof, including all material from private property encroaching into the DEPARTMENT'S Right -of -Way. b) All pruning and trimming will follow the Maintenance Rating Program Handbook which specifically requires no encroachment of trees, tree limbs or vegetation in or over travel way (or clear zone) lower than 14.5 feet, or lower than 10 feet over sidewalks. c) Removing and properly disposing of dead, diseased or otherwise deteriorated plants in their entirety, and replacing those that fall below the standards set forth in the Project Plans and in the Project Specifications, incorporated herein by reference, and all applicable DEPARTMENT guidelines, standards, and procedures, as may be amended from time to time. All replacement materials shall be in accordance with the Project Plans and the Project Specifications and Special Provisions. d) Mulching all plant beds and tree rings. e) Removing and disposing of all undesirable vegetation including but not limited to weeding of plant beds and removal of invasive exotic plant materials. f) Watering and fertilizing all plants as needed to maintain the plant materials in a healthy and vigorous growing condition. g) Repairing irrigation systems as needed. Paying for all water use and all costs associated therewith. h) Removing and disposing of litter within the PROJECT LIMITS in accordance with all applicable government rules, regulations, policies, procedures, guidelines, and manuals, as amended from time to time. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 3 of 13 i) Repairing all sidewalks inside and outside the DEPARTMENT's Right -of -Way damaged by the IMPROVEMENTS. j) Removing and disposing of all trimmings, roots, branches, litter, and any other debris resulting from the activities described by 3.A through 3.I. 3.3. Tree Grates: a. Performing routine and regular inspections of the tree grates. Identify damages along the sidewalk and tree grate surfaces. Repair and/or replace damaged sidewalks and tree grates to ensure surfaces are maintained in accordance with all applicable DEPARTMENT guidelines, standards, and all applicable American with Disabilities Act (ADA) requirements, as amended from time to time. b. The CITY shall conduct annual condition surveys of the sidewalks and tree grates for gaps, settlement, drop- offs, and other deficiencies described in this AGREEMENT for the life of the IMPROVEMENTS. c. Gaps within the tree grates shall not exceed a quarter (1/4) of an inch. Gaps at the interface (perimeter) between the tree grates and the adjacent concrete sidewalk(s) shall not exceed a quarter (1/4) of an inch. This requirement also applies to adjacent areas of existing concrete sidewalk(s) that have been impacted by the trees. d. Differential settlement within the tree grates shall not exceed a quarter (1/4) of an inch in depth. Differential settlement at the interface (perimeter) between the tree grates and the adjacent concrete sidewalk(s) shall not exceed a quarter (1/4) of an inch in depth. This requirement also applies to adjacent areas of existing concrete sidewalk(s) that have been impacted by the trees. e. When remedial action is required in accordance with the above requirements, the CITY at its own expense shall complete all necessary repairs within ninety (90) days of the date the deficiency is identified. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 4 of 13 f. Repairing and/or replacing damaged concrete slabs/flags shall be in kind (texture, geometry, color, strength, etc.) and in accordance with all applicable DEPARTMENT guidelines, standards, and all applicable American with Disabilities Act (ADA) requirements, as amended from time to time. Maintaining a service log of all maintenance operations that sets forth the date of the maintenance activity, the location that was maintained, and the work that was performed. Submitting Lane Closure Requests to the DEPARTMENT when maintenance activities will require the closure of a traffic lane in the DEPARTMENT's right-of-way. Lane closure requests shall be submitted through the District Six Lane Closure Information System, to the DEPARTMENT's area Permit Manager and in accordance with the District Six Lane Closure Policy, as may be amended from time to time. The DEPARTMENT may, at its sole discretion, perform periodic inspection of the IMPROVEMENTS to ensure that the CITY is performing its duties pursuant to this AGREEMENT. The Department shall share with the CITY its inspection findings, and may use those findings as the basis of its decisions regarding maintenance deficiencies, as set forth in Section 4 of this AGREEMENT. The CITY is responsible for obtaining copies of all applicable rules, regulations, policies, procedures, guidelines, and manuals, and the Project Specification and Special Provisions, as may be amended from time to time. 4. MAINTENANCE DEFICIENCIES If at any time it shall come to the attention of the DEPARTMENT that the CITY's responsibilities as established herein are not being properly accomplished pursuant to the terms of this AGREEMENT, the DEPARTMENT may, at its option, issue a written notice, in care of the CITY MANAGER, to notify the CITY of the maintenance deficiencies. From the date of receipt of the notice, the CITY shall have a period of thirty (30) calendar days, within which to correct the cited deficiency or deficiencies. Receipt is determined in accordance with Section 5 of this AGREEMENT. If said deficiencies are not corrected within this time period, the DEPARTMENT may, at its option, proceed as follows: Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 5 of 13 a. Maintain the IMPROVEMENTS or a part thereof and invoice the CITY for expenses incurred; or b. Terminate this AGREEMENT in accordance with Section 7, remove any or all IMPROVEMENTS located within the PROJECT LIMITS, and charge the CITY the reasonable cost of such removal. 5. NOTICES All notices, requests, demands, consents, approvals, and other communication which are required to be served or given hereunder, shall be in writing and shall be sent by certified U.S. mail, return receipt requested, postage prepaid, addressed to the party to receive such notices as follows: To the DEPARTMENT: To the CITY: Florida Department of Transportation 1000 Northwest 111 Avenue, Room 6205 Miami, Florida 33172-5800 Attn: District Maintenance Engineer City of Miami 444 SW 2nd Avenue Miami, Florida 33130 Attention: CITY Manager Notices shall be deemed to have been received by the end of five (5) business days from the proper sending thereof unless proof of prior actual receipt is provided. 6. REMOVAL, RELOCATION OR ADJUSTMENT OF THE IMPROVEMENTS The PARTIES agree that the IMPROVEMENTS addressed by this AGREEMENT may be removed, relocated, or adjusted at any time in the future, at the DEPARTMENT's sole discretion. In the event that the DEPARTMENT relocates or adjusts the IMPROVEMENTS, the CITY's maintenance responsibilities will survive the relocation or adjustment, as long as the materials remain within the Project Limits. 7. TERMINATION This AGREEMENT is subject to termination under any one of the following conditions: Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 6 of 13 a. By the DEPARTMENT, if the CITY fails to perform its duties under Section 3 of this AGREEMENT, following the thirty (30) days written notice, as specified in Section 4 of this AGREEMENT. b. In accordance with Section 287.058(1)(c), Florida Statutes, the DEPARTMENT shall reserve the right to unilaterally cancel this AGREEMENT if the CITY refuses to allow public access to any or all documents, papers, letters, or other materials made or received by the CITY pertinent to this AGREEMENT which are subject to provisions of Chapter 119, of the Florida Statutes. c. If mutually agreed to by both parties, upon thirty (30) days advance notice. An agreement to terminate shall be valid only if made in writing and executed with the same formalities as this AGREEMENT. 8. TERMS a. The effective date of this AGREEMENT shall commence upon execution by the PARTIES and shall continue so long as the IMPROVEMENTS remain in place until termination as set forth in Section 7. b. E-Verify The CITY shall: i. Utilize the U.S. Department of Homeland Security's E-Verify system to verify the employment eligibility of all new employees hired by the Vendor/Contractor during the term of the contract; and ii. Expressly require any subcontractors performing work or providing services pursuant to the state contract to likewise utilize the U.S. Department of Homeland Security's E-Verify system to verify the employment eligibility of all new employees hired by the subcontractor during the contract term. (Executive Order Number 2011-02) The CITY shall insert the above clause into any contract entered into by the CITY with vendors or contractors hired by the CITY for purposes of performing its duties under this AGREEMENT. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 7 of 13 c. This writing embodies the entire AGREEMENT and understanding between the PARTIES hereto and there are no other agreements and understanding, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. d. The CITY may assign its rights, obligations, or responsibilities hereunder to the owner and/or tenant of the property abutting the DEPARTMENT Right -of -Way without further written consent from the DEPARTMENT, without releasing the CITY from its obligations and/or responsibilities hereunder. e. This AGREEMENT shall be governed by and constructed in accordance with the laws of the State of Florida. Any provisions of this AGREEMENT found to be unlawful or unenforceable shall be severable and shall not affect the validity of the remaining portions of the AGREEMENT. f. Venue for any and all actions arising out of or in connection to the interpretation, validity, performance, or breach of this AGREEMENT shall lie exclusively in a state court of proper jurisdiction in Leon County, Florida. g• A modification or waiver of any of the provisions of this AGREEMENT shall be effective only if made in writing and executed with the same formality as this AGREEMENT. i. The section headings contained in this AGREEMENT are for reference purposes only and shall not affect the meaning or interpretation hereof. No term or provision of this AGREEMENT shall be interpreted for or against either Party because the Party or its legal representative drafted the provision. k. The DEPARTMENT is a state agency, self -insured and subject to the provisions of Section 768.28, Florida Statutes, as may be amended from time to time. Nothing in this AGREEMENT shall be deemed or otherwise interpreted as waiving the DEPARTMENT's sovereign immunity protections, or as increasing the limits of liability as set forth in Section 768.28, Florida Statutes. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 8 of 13 9. INDEMNIFICATION Subject to Section 768.28, Florida Statutes, as may be amended from time to time, the CITY shall promptly indemnify, defend, save and hold harmless the DEPARTMENT, its officers, agents, representatives and employees from any and all losses, expenses, fines, fees, taxes, assessments, penalties, costs, damages, judgments, claims, demands, liabilities, attorney's fees, (including regulatory and appellate fees), and suits of any nature or kind whatsoever caused by, arising out of, or related to the CITY's exercise or attempted exercise of its responsibilities as set out in this AGREEMENT, including but not limited to, any act, action, neglect or omission by the CITY, its officers, agents, employees or representatives in any way pertaining to this AGREEMENT, whether direct or indirect, except that neither the CITY nor any of its officers, agents, employees or representatives will be liable under this provision for damages arising out of injury or damages directly caused or resulting from the sole negligence of the DEPARTMENT. The CITY's obligation to indemnify, defend and pay for the defense of the DEPARTMENT, or at the DEPARTMENT's option, to participate and associate with the DEPARTMENT in the defense and trial of any claim and any related settlement negotiations, shall be triggered immediately upon the CITY's receipt of the DEPARTMENT's notice of claim for indemnification. The notice of claim for indemnification shall be deemed received if the DEPARTMENT sends the notice in accordance with the formal notice mailing requirements set forth in Section 5 of this AGREEMENT. The DEPARTMENT's failure to notify the CITY of a claim shall not release the CITY of the above duty to defend and indemnify the DEPARTMENT. The CITY shall pay all costs and fees related to this obligation and its enforcement by the DEPARTMENT. The indemnification provisions of this section shall survive termination or expiration of this AGREEMENT, but only with respect to those claims that arose from acts or circumstances which occurred prior to termination or expiration of this AGREEMENT. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 9 of 13 The CITY's evaluation of liability or its inability to evaluate liability shall not excuse the CITY's duty to defend and indemnify the DEPARTMENT under the provisions of this section. Only an adjudication or judgment, after the highest appeal is exhausted, specifically finding the DEPARTMENT was solely negligent shall excuse performance of this provision by the CITY. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 10 of 13 IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day and year first above written. CITY OF MIAMI: STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION: BY: BY: CITY Manager District Director of Transportation Operations ATTEST: (SEAL) ATTEST: CITY Clerk Executive Secretary LEGAL REVIEW: BY: BY: CITY Attorney District Chief Counsel Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 11 of 13 EXHIBIT 'A' PROJECT LIMITS Below are the limits of the IMPROVEMENTS to be maintained under this AGREEMENT. State Road Number: 934 (NE 79th Street) Agreement Limits: NE 1st Avenue to NE 2nd Avenue County: Miami -Dade Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 12 of 13 EXHIBIT 'B' CITY OF MIAMI RESOLUTION To be herein incorporated once ratified by the CITY Commission. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 13 of 13