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HomeMy WebLinkAboutExhibit 1FLORIDA DEPARTMENT OF TRANSPORTATION LANDSCAPE 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 (S.R.) 934/ NE 82nd Street from North Miami Avenue (MP 1.506) to Biscayne Boulevard (MP 0.761), which is located within the limits of the CITY currently bonded on the north by NE 87th Street and Biscayne Boulevard; and B. The DEPARTMENT, pursuant to Contract # T-6307, has drafted design plans for beautification improvements on S.R. 934/ NE 82nd Street from North Miami Avenue to Biscayne Boulevard, 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 DEPARTMENT will install landscaping in accordance with the design plans for Contract # T-6307(the "Project"); and D. The Parties to this AGREEMENT mutually recognize the need for entering into an agreement designating and setting forth the responsibilities of each party with regards to the maintenance of the landscaping installed pursuant to the Project; and E. The CITY, by Resolution No. , dated attachedhereto 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 Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 1 of I 1 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 by executing this AGREEMENT all maintenance responsibilities pertaining to the landscaping within the PROJECT LIMITS are assigned to the CITY in perpetuity upon the DEPARTMENT's release of its contractor from further warranty work and responsibility, as set forth in Section 580-5 of the DEPARTMENT's Standard Specification for Road and. Bridge Construction. 3.CITY' S MAINTENANCE RESPONSIBILITIES The CITY shall maintain the landscape 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, as may be amended from time to time, and in accordance with the standards set forth in the Project Plans, Project .Specifications and Special Provisions. maintenance obligations shall include but not to: and in the The CITY'S be limited a. Mowing, cutting and/or trimming and edging the grass and turf. b. Pruning all plant materials, which include trees, shrubs and ground covers, and parts thereof. c. Removing otherwise replacing forth in and properly disposing of dead, diseased or deteriorated plants in their entirety, and those that fall below the standards set Project Plans and in the Project incorporated herein by reference, and and the Specifications, all applicable DEPARTMENT guidelines, standards procedures, as may be amended from time to time.. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 2 of 11 All replacement materials shall be in accordance with the Project Plans, 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 Removing and disposing of litter from roadside and median strips in accordance withall applicable government rules, regulations, policies, procedures, guidelines, and manuals, as amended from time to time. h. Removing and disposing of all trimmings, roots, branches, litter, and any other debris resulting from the activities described by 2.A through 2.G. i. 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. J• 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 landscape 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 Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 3 of 11 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 isdetermined 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: a. Maintain the landscape, 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 landscape 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: Florida Department of Transportation 1000 Northwest 111 Avenue, Room 6205 Miami, Florida 33172-5800 Attn: District Maintenance Engineer To the CITY: City of Miami 3500 Pan American Drive Miami, Florida 33133 Attention: City Manager Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 4 of 11 With copy to: City of Miami 3500 Pan American Drive Miami, Florida 33133 Attention: City Public Works Director -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 LANDSCAPE a. The PARTIES agree that the landscape 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 landscape, 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: 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. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 5 of 11 8. TERMS a. The effective date of this AGREEMENT shall commence upon execution by the PARTIES. This AGREEMENT shall continue in perpetuity or until termination as set forth in Section 7. b. For purposes of performing its duties under this AGREEMENT, the CITY shall insert the following clause into any contracts entered into by the CITY, with vendors or contractors: Vendors/Contractors i. Shall 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 AGREEMENT; and ii. Shall expressly require subcontractors performing work or providingservices pursuant to the state contract to likewise utilize the U.S. Department of Homeland Security's E-Verify system to verify the employment of all new employees hired by the subcontractors during the AGREEMENT term. 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 referenceto the subject matter hereof that are not merged herein and superseded hereby. d. This AGREEMENT shall not be transferred or assigned, in whole or in part, without the prior written consent of the DEPARTMENT. 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 Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 6 of 11 connection to the interpretation, validity, performance or breach of this AGREEMENT shall lie exclusively in a state court of proper jurisdiction in Miami -Dade 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. j 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. 9. INDEMNIFICATION Subject to Section ,768.28, Florida Statutes, as may be amended from time to time, the CITY shall 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, attorneys fees, (including regulatory and appellate fees), and suits for personal injury or property damage or civil actions otherwise constituting a tort 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, Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 7 of 11 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 and CITY's mutual agreement, 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. Subject to the limitations of Section 768.28, F.S. the CITY shall pay all ,costs and fees related to this obligation which come under the express terms of this Section and its enforcement by the DEPARTMENT. The indemnification provisions of this section shall survive termination or expiration of this AGREEMENT, but only for four (4) years from the date of the negligent act or omission occurred with respect to those claims that arose from acts or circumstances which occurred prior to termination or expiration of this AGREEMENT. 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 8 of 11 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 Johnny Martinez, P.E. Transportation Operations ATTEST: (SEAL) ATTEST: CITY Clerk Executive Secretary LEGAL REVIEW: Approved as to legal form: BY: BY: Julie O. Brue, CITY Attorney District Chief Counsel Attest: Priscilla A. Thompson, CMC, CITY Clerk Approved as to Risk Management: Calvin Ellis, CITY Risk Manager . Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 9 of 11 EXHIBIT 'A' PROJECT LIMITS Below are the limits of the landscape to be maintained under this AGREEMENT. State Road Number: 934/ NE 82nd Street Agreement Limits: - From North Miami Avenue (M.P. 1.506) to Biscayne Boulevard (M.P. 0.761) County: Miami -Dade Intersection Bulbouts: o NW corner of NE 1st Place o NW corner of NE 2nd Avenue o SW corner of NE 2nd Avenue o NW corner of NE 4th Place o SW corner of NE 4th Place Midblock Bulbouts: o North side between NE 3rd Place and Florida East Coast (FEC) Railway o South side between NE 3rd Place and FEC Railroad Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 10 of 11 EXHIBIT 'B' CITY OF MIAMI-RESOLUTION To be herein incorporated once ratified by the CITY Board of Commissioners. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 11 of 11