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HomeMy WebLinkAboutExhibitFM# 436385-1-52-01 Page 1 of 10 OFF -SYSTEM CONSTRUCTION AND MAINTENANCE AGREEMENT Between STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION ("DEPARTMENT") and CITY OF MIAMI, a municipal corporation of the State of Florida ("CITY") THIS AGREEMENT is made and entered into as of , 2017, by and through the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, an agency of the State of Florida (the "Department"), and CITY OF MIAMI, a municipal corporation of the State of Florida(the "City"), collectively referred to as the "Parties." RECITALS A. Upon approval of the Department' s Work Program by the State of Florida Legislature, and adoption by the Department Secretary, the Department shall complete the various projects included in the Department Work Program; and B. Included in the Department Work Program is Project Number FM# 436385-1-52-01 on SR 9/ NW 27th Avenue at the intersection with NW 17th Street (the "Project"), which Project entails work on a road not on the State Highway System; and C. The City is the custodian or holder of ownership rights to NW 17' Street, a road not on the State Highway System; and D. The Parties agree that it is in the best interest of each party for the Department to undertake and to complete all aspects of the Project, including but not limited to, the design, construction, construction inspection, utilities, permits, easements and other associated tasks; and E. The Parties further agree that it is in the best interest of each party to enter into this Agreement in order to allow the Department to construct and complete the Project. 1 FM# 436385-1-52-01 Page 2of10 TERMS NOW THEREFORE, in consideration of the premises, the mutual covenants and other valuable considerations contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. The recitals in this Agreement are true and correct, and incorporated into and made a part hereof. 2. The Parties agree that the Department intends to undertake and complete project number FM# 436385-1-52-01, on SR 9/NW 27 Avenue at the intersection with NW 17th Street ("Project Limits"), an intersection safety improvement project, which include median widenings, installation of a signal head and backplates, signing, construction of a concrete island, relocation of drainage inlets, pull boxes, and a bus stop, and retrofitting of existing lighting. The Project improvements on NW 17th Street, a road not on the State Highway System, referred to as the "Local Roadway Improvements", are the following: a) median reconstruction and roadway for approximately 200 feet to provide additional space for northbound to westbound left and southbound to westbound right turning vehicles; b) milling, resurfacing, and restriping pavement markings for approximately 400 feet west of the intersection with SR 9/NW 27 Avenue; c) approximately 100 feet of sidewalk replacement; and d) installation and retrofitting of lighting on NW 17th Street. e) installation of a new drainage inlet and modification of the existing inlet to a manhole at the NW quadrant of the intersection. Both inlets will be connected to the FDOT drainage system. The Project shall further include all activities associated with, or arising out of the construction of the Local Roadway Improvements. The Department will secure any necessary approvals or permits from Miami -Dade County, if applicable. The City shall cooperate with and shall support the Department' s work efforts with respect to the Local Roadway Improvements. The Department will design and construct the Project in accordance with all applicable federal and state laws and regulations and in accordance with Department design and construction standards 2 FM# 436385-1-52-01 Page 3of10 as set forth in the Department's guidelines, standards, and procedures. The Department shall have final decision authority with respect to the design, the design review process, and construction of the Local Roadway Improvements, and the relocation of any utilities that the Department may determine to be required, but shall coordinate with the City as set forth in Paragraphs 3 and 4. 3. The Parties acknowledge and agree that the City will review the Project Design Plans ("PDP") and shall submit its comments, if any, via Electronic Reviewer Comments ("ERC".) The Department shall provide the City access to the ERC, and the Department shall use the ERC to submit the Project Design Plans for the City to review. When the Department places the Project Design Plans in the ERC, the Department will designate a Comment Due Date and a Response Due Date. The City shall submit its comments with regards to the Project Design Plans on or before the Comment Due Date, and the Department shall respond to the City's comments, if any, on or before the Response Due Date. If the City does not submit its comments by the Comment Due Date, the City will be deemed to have approved the Project Design Plans submitted by the Department. The review process for the Project Design Plans will be deemed concluded when the Department has submitted the Final Project Design Plans to the ERC, and the Comment Due Date and Response Due Date for the Final Project Design Plans have passed, and the Department has addressed all of the City's comments that were submitted through the ERC. Once the review process is concluded, the City shall authorize its Public Works and Waste Management Department to issue a permit ("the Permit"), as may be necessary, to the Department's construction Contractor, authorizing the construction of the Department' s Project in accordance with the Final Project Design Plans submitted through the ERC. The City acknowledges and agrees that, during construction of the Local Roadway Improvements, the Department will only utilize the services of law enforcement officers when required by the Department' s Standard Specifications for Road and Bridge Construction, and no additional requirements will be imposed. The City agrees that the Permit will not impose any conditions other than those included in this Agreement, and the terms of this Agreement supersede any conflicting terms in the Permit. Additionally, the City waives any permit fees that may apply to issuance of the Permit. 3 FM# 436385-1-52-01 Page 4of10 Major Modifications of the approved plans must be submitted to the City for review. A Major Modification is any modification that materially alters the kind or nature of the work depicted in the approved plans, or that alters the integrity or maintainability of the Local Roadway Improvements, or related components. The City' s review shall be within the reasonable time schedule proposed by the Department, in order to avoid delay to the Department' s construction contract. In the event that any Major Modifications are required during construction, the Department shall provide to the City email written notification to the Director of Public Works of the City prior to commencing the construction work. Such notification is not subject to the provisions of Paragraph 20 herein, and the same shall include a Comment Due Date as designated by the Department. The Department shall take into consideration any comments timely submitted by the City, with the understanding that any such comments and/or required changes during construction shall not delay nor affect the timely construction schedule of the Project. If the City does not submit comments by the Comment Due Date, the City shall be deemed to have approved the modification submitted by the Department, The Department shall be entitled to proceed with any modifications that are necessary to complete the construction of the Project and/or that are unavoidable. The Department shall use its best efforts to avoid any Major Modifications during construction. 4. The City agrees to fully cooperate with the Department in the construction, reconstruction and relocation of utilities that are located within the City's municipal right-of-way, within the Project Limits. Utility relocations, if any, which may be required by the Department for purposes of the Project, shall be done in accordance with the Department's guidelines, standards and procedures. The Department shall submit the proposed Utility Relocation Schedule to the City. Utility relocations, if any, shall be done in accordance with the provisions of Chapter 337, F. S. Additionally, the City agrees to fully support the Department in the removal of any encroachments or permitted improvements located within the City's right-of-way, within the Projects Limits, that are in conflict with the Project. The Department shall coordinate with the City for the removal of any such encroachments or permitted improvements, at no cost to the City, which may be required as a result of the Project. 5. The City acknowledges that the Department will be utilizing federal funds to construct the Project, and as a result thereof, the City agrees to perpetually maintain the Local Roadway Improvements. To maintain means to perform normal maintenance operations for the 4 FM# 436385-1-52-01 Page 5of10 preservation of the Local Roadway Improvements, which shall include but is not limited to, roadway surfaces, shoulders, roadside structures, drainage, signing and pavement markers, and such traffic control devices as are necessary for the safe and efficient use of the Local Roadway Improvements. Additionally, the Parties understand and agree that the Department shall transfer the Permit(s) to the City as the operational maintenance entity, and the City agrees to accept said transfer and to be fully responsible to comply with all operational and maintenance conditions of the Permit(s), at its sole cost and expense. Notwithstanding the requirements hereof, maintenance during construction shall be the responsibility of the Department and its Contractor, as set forth in paragraph 9 of this Agreement. 6. The Parties acknowledge and agree that the City' s right-of-way and the improvements and structures located within the City' s right-of-way, are and will remain under the ownership or custody of the CITY, and that the Department will not have any ownership or other interest in the right-of-way, improvements, or structures located thereon or installed therein pursuant to this Proj ect. 7. The Department shall require its construction Contractor to maintain, at all times during the construction to carry Commercial General Liability insurance providing continuous coverage for all work or operations performed under the Construction Contract. Such insurance shall be no more restrictive than that provided by the latest occurrence form edition of the standard Commercial General Liability Coverage Form (ISO Form CG 00 01) as filed for use in the State of Florida. The limits of coverage shall not be less than $1,000,000 for each occurrence and not less than a $5,000,000 annual general aggregate, inclusive of amounts provided by an umbrella or excess policy, or such other minimum insurance coverage that may be required by the Department for the construction of the Project, in accordance with the Department's Standards and Specifications for Road and Bridge Construction. The Department shall further cause its Contractor to name the City and the Department as additional insured Parties on the afore -stated policies, and to provide evidence of Workers' Compensation Insurance in accordance with the laws of the State of Florida and in amounts sufficient to secure the benefit of the Florida Workers' Compensation law for all employees. 8. The Department shall notify the City at least 48 hours before beginning construction within the City' s right-of-way. Such notification may be provided via email to the Director of Public Works, 5 FM# 436385-1-52-01 Page 6 of 10 and the notice requirements set forth in paragraph 20 shall not apply to this paragraph. The Department agrees that the City may, at reasonable times during the construction of the Local Roadway Improvements, inspect the Contractor's construction site and perform such tests as are reasonably necessary to determine whether the goods or services required to be provided by the Contractor, pursuant to the Contractor's Construction Agreement with the Department, conform to the terms of said Construction Agreement. Upon request by the City, the Department shall coordinate with its Contractor to provide access to the City for performance of said inspections. During the construction work related to the Project, the City shall fully cooperate with any such work being performed by the Department and the Department's contractors. The City shall not commit nor permit any act which may delay or interfere with the perfoiiiiance of any such work by the Department or the Department' s contractors, unless the Department agrees in writing that the City may commit or permit said act, or unless such act is due to a declared City emergency or unless such act(s) are of a regulatory nature within the normal course of business for an agency or department of the City. 9. Maintenance within the Project Limits during construction, commencing as of the first date of construction, shall be the responsibility of the Department' s Contractor. After completion of construction, the City shall assume all maintenance responsibilities. Upon completion of construction, the Department will invite the City on the Final Inspection of the work within the Project Limits, and will incorporate legitimate City concerns that are within the scope of the contract into the final Project punch list to be corrected by the Contractor. The Department shall have to obligation to assure completion of Project punch list items, if any. The Final Inspection shall be performed and the Notice of Final Acceptance shall be issued in accordance with the Department' s Standard Specifications for Road and Bridge Construction and the Construction Project Administration Manual (CPAM). The City' s presence at the Final Inspection, however, is not mandatory, and the Department shall conduct the Final Inspection, finalize the Project punch list, and issue a Notice of Final Acceptance to its Contractor, whether or not the City attends the Final Inspection. Upon issuance of the Notice of Final Acceptance to the Contractor, the Department shall provide a copy of said notice to the City. As of the date of the Notice of Final Acceptance, the City shall be immediately responsible for the maintenance of the Project Local Roadway Improvements, and City's right-of-way. The Department, however, shall have the right to assure completion of 6 FM# 436385-1-52-01 Page 7of10 any punch list by the Contractor. Notwithstanding the issuance of the Notice of Final Acceptance, the City may notify the Department Project Manager of deficiencies in the Local Roadway Improvements that may be covered by the warranty provisions in the contract between the Department and its Contractor. The Department shall enforce the warranty if the remedial action is required by the warranty provisions, as determined by the Department. Upon completion of all work related to construction of the Project, the Department will be required to submit to the City final as -built plans for the Local Roadway Improvements and an engineering certification that construction was completed in accordance with the plans. Additionally, the Department shall vacate those portions of the City' s right-of-way used to construct the Local Roadway Improvements, and shall remove the Department's property, machinery, and equipment from said portions of the City' s right-of-way. Furthermore, the Department shall restore those portions of the City right-of-way disturbed by Project construction activities to the same or better condition than that which existed immediately prior to commencement of the construction of the Project. 10. This Agreement shall become effective as of the date both parties hereto have executed the agreement and shall continue in full force and effect until the Project is completed, as evidenced by the Department's issuance of the Notice of Final Acceptance. Prior to commencement of construction, the Department in its sole discretion terminate this Agreement if it determines that it is in the best interest of the public to do so. If the Department elects to terminate this Agreement, the Department shall deliver formal notice of termination to the City, as set forth in paragraph 20 of this Agreement. 11. In the event that any election, referendum, approval, ratification, or permit, notice or other proceeding, or authorization is required to carry out the Project, the City agrees to expeditiously initiate and consummate, as provided by law, all actions reasonably necessary with respect to any such matters, with time being of the essence. 12. The Parties acknowledge and agree that the Project shall be constructed using federal funds and that all costs incurred must be in conformity with applicable federal and state laws, regulations, and policies and procedures. 13 The Department' s performance and obligations under this Agreement are contingent upon an annual appropriation by the Legislature. If the Department' s funding for this Project is in multiple fiscal years, funds approval from the Department's Comptroller must be received each fiscal year 7 FM# 436385-1-52-01 Page 8of10 prior to costs being incurred. Project costs utilizing fiscal year funds are not eligible for reimbursement if incurred prior to funds approval being received. Once construction of Local Roadway Improvements has commenced, if the Project is not funded by an annual appropriation or other means, the Department shall to submit to the City final as -built plans for the Local Roadway Improvements which have been constructed, and an engineering certification that such construction was completed in accordance with the plans. 14. In the event that this agreement is in excess of $25,000, and the agreement has a term for a period of more than one year, the provisions of Section §339.135(6)(a), Florida Statutes, are hereby incorporated into this agreement and are as follows: "The department, during any fiscal year, shall not expend money, incur any liability, or enter into any contract which, by its terms, involves the expenditure of money in excess of the amounts budgeted as available for expenditure during any such fiscal year. Any contract, verbal or written, made in violation of this subsection is null and void, and no money may be paid on such contract. The department shall require a statement from the comptroller of the department that funds are available prior to entering into any such contract or other binding commitment of funds. Nothing herein contained shall prevent the making of contracts for periods exceeding 1 year, but any contract so made shall be executory only for the value of the services to be rendered or agreed to be paid for in succeeding fiscal years; and this paragraph shall be incorporated verbatim in all contracts of the department which are for an amount in excess of $25,000 and which have a term for a period of more than 1 year." 15. The Department is a state agency, self -insured and subject to the provisions of Section 768.28, Florida Statutes. 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. The City is a Florida Municipal Corporation and subject to the provisions of Section 768.28, Florida Statutes. 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. 16. 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. 8 FM# 436385-1-52-01 Page 9 of 10 17. This agreement shall be governed by the laws of the State of Florida. Any provision hereof found to be unlawful or unenforceable shall be severable and shall not affect the validity of the remaining portions hereof. Venue for any and all actions arising out of or in any way related to the interpretation, validity, performance or breach of this Agreement shall lie exclusively in a state court of appropriate jurisdiction in Leon County, Florida, with the understanding that the City is not hereby waiving any rights to challenge venue, as provided by Florida law if the Department institutes an action against the City , however, it is agreed that venue shall lie in Miami -Dade County , Florida which is where the City and the Project are located. 18. No term or provision of this Agreement shall be interpreted for or against any party because that party' s legal counsel drafted the provision. 19. In accordance with Executive Order No. 11-02 the Department's Vendor/Contractor(s) shall utilize the U.S. Department of Homeland Security's E-Verify system, in accordance with the teal's governing use of the system, to confirm the employment eligibility of; i. all persons employed by the Vendor/Contractor during the term of the Contract to perform employment duties within Florida; and ii. all persons, including subcontractors, assigned by the Vendor/Contractor to perform work pursuant to the contract with the Department. 20. All notices required pursuant to the terms hereof, shall be in writing and shall be sent by first class United States Mail, facsimile transmission, hand delivery or express mail. 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. Unless otherwise notified in writing, notices shall be sent to the following: To the City: City of Miami Public Works Director 444 SW 2nd Av., 8th Floor Miami, Fl. 33130-1910 To the Department: Director of Transportation Operations State of Florida, Department of Transportation 1000 N.W. 111th Avenue Miami, Florida 33172 9 FM# 436385-1-52-01 Page 10 of 10 21. This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. IN WITNESS WHEREOF, the parties hereto have executed this agreement on the dates exhibited, by the signatures below. STATE OF FLORIDA CITY OF MIAMI DEPARTMENT OF TRANSPORTATION By: By: Name: Daniel J. Alfonso Name: Title: City Manager Title: Director of Transportation Operations Date: Date: Attest: Department Legal Review: Name: Todd B. Hannon Title: City Clerk Approved as to Insurance: By: Name: Ann -Marie Sharpe Director, Risk Management Approved: By: Name: Juvenal Santana, P.E., CFM Director of Public Works Approved as to form and legality: By: Name: Victoria Mendez City Attorney 10