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HomeMy WebLinkAboutExhibitLOCATION: 801 SW 8 STREET :MIAMI, :FL 33130 FOLIO 01-4138-006-0020,, 0030, 0060, 0070, ti )8t. , 0090 01-4138-006-0100, 0120 01-4138-007-0060, 0070,, 0080 Prepared by and return recorded copy to: City of Miami Public Works Department Attention: Director, Juvenal Santana, P,E., CFM 444 SW 2 Avenue, 8° Floor Miami, FL 33130-1910 COVENANT RUNNING WITH THE LAND ("COVENANT") THIS COVENANT .made and entered into this day of 20 by and between 3BROANIIGO DEVELOPMENT ONE, LLC., A FLORIDA LIMITED .LIABILITY CO'stPANY AND 3BROAMIGO DEVELOPMENT, LLC., A. FLORIDA. LIMITED LIABILITY COMPANY', (hereinafter called COVENANT:ORS) and. the CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida, located in. Miann-.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 eallcd PROPERTY); and WHEREAS. COVENANTORS have requestcd permission from CITY to construct and maintain nonstandard improvements described in Exhibit "B" (hereinafter collectively called "IMPROVEMENTS") within the public right-of-way on SW .8th Street from SW 8th Court to SW 8th. Avenue, and on. SW 8th Avenue from SW 7111 Street to SW 8th Street, adjacent to PROP.ERTY; and. WHEREAS„ SW 8,th Street and SW 8thAvenue are under jurisdiction of the Florida Department of Transportation (hereinafter "FDOT"); and WHEREAS, FDOT is requiring that CITY act as pennince for the construction and man. 'llance of:the improvements within :MOT right-of-way; and LOCATION: 801 SW 8 STREET MIAMI,, FL 33130 FOLIO ##: 01-4138-006-0020, 0030, 0060, 0070, 0080, 0090 01-4138-006-0100, 0120 01-4138-007-0060, 0070, 0080 WHEREAS, CITY has required the COVENANTORS to execute and deliver to CITY this instrument as a condition precedent to acting as Pennittee and to the granting of said permission. 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 COVENANTOR 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 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 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 accordant with the CITY'S standards and specifications. LOCATION: 801 SW 8 STREET MIAMI, FL 33130 FOLIO : 01-4138-006-0020, 0030, 0060, 0070, 0080, 0090 01-4138-006-0100, 0120 01-4138-007-0060, 0070, 0080 In addition, COVENANTORS agree to accept and assume all obligations and responsibilities being assigned to CITY in that certain FDOT MAINTENANCE 1\IEMORANDIJM OF AGREEMENT (hereinafter called "MMOA"), a copy of which is 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 tiine 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 LOCATION: 801 SW 8 STREET MIAMI, FL 33130 FOLIO #: 01-4138-006-0020, 0030, 0060, 0070, 0080, 0090 01-4138-006-0100, 0120 01-4138-007-0060, 0070, 0080 encroachments of any kind shall be permitted within he Clear Pedestrian Path at any time, except as may be required, and approved by FDOT, pulsuant to the Paragraph her, COVENANTORS' responsibilities and maintenance obligations hereunder shall include, but not he limited to: Performing routine and regular ctions 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, COVENANTOR at its own expense shall complete all necessary repairs within ninety (90) days of the date the deficiency is identified. LOCATION: 801 SW 8 STREET MIAMI, FL 33130 FOL10#: 01- 41.38-006-0020, 0030, 0060, 0070, 0080, 0090 01-4138-006-0100, 0120 01-4 1 3 8-007-0060, 0070, 0080 COVENANTOR 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 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. lr. 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 closure requests shall be submitted through the District Six Lane Closure lnformation. 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 o f such claim or in the investigation thereof. COVENANTORS shall indemnify, defend and save CLTY, its officers and employees, harmless fron r and against any and all claims,, liability, losses and causes of action of any nature LOCATION: 801 SW 8 STREET MIAMI, FL 33130 FOLIO 4: 01-4138-006-0020, 0030, 0060, 0070, 0080, 0090 01-4138-006-0100, 0120 01-4138-007-0060, 0070, 0080 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, liabiiitics, losses or causes of action of any nature whatsoever arising out of the acceptance by the CITY of the MMOA with F.DOT, or any part thereof or activities thereunder, from and against any orders, judgrnents 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 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 S2,000,000 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. LOCATION: 801 SW 8 STREET MIAMI, FL 33130 FOLIO #: 01-4138-006-0020, 0030, 0060, 0070, 0080, 0090 01-4138-006-0100, 0120 01-4138-007-0060, 0070, 0080 The insurance and Covenant shall be subject to the approval of the CITY's Risk Manager and the CITY Attorney. The ns -ance 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 tcnn 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 he 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 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 °Tally 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 or 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 LOCATION: 801 SW 8 STREET MIAMI, FL 33130 FOLIO #: 01-4138-006-0020, 0030, 0060, 0070, 0080, 0090 01-4138-006-0100, 0120 01-4138-007-0060, 0070, 0080 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, heirs, 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: CITY: 3Broamigo Development One, LLC and 3Broamigo Development, LLC Attn: Keith Diamond or Glenn Stolzenberg 3440 Hollywood Boulevard, Ste. 415 Hollywood, FL 33021 THE CITY OF MIAMI Attention: Director, Department of Public Works 444 S.W. 2nd Avenue, 8'1Floor Miami, Florida 33130 LOCATION: 801 SW 8 STREET 1V11AIVII, FL 33130 FOLIO tt: 01-4 38-006-0020, 0030, 0060, 0070, 0080, 00 30 01-4138-006-0100, 0120 01-4138-007-0060, 0070, 0080 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 tit ne specified herein after receipt of notice and (c) COVENANTORS do 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. signature page follows LOCATION: 801 SW 8 STREET MIAMI, FL 33130 FOLIO ti: 01-4138-006-0020, 0030, 0060, 0070, 0080, 0090 01-4138-006-0100, 0120 01-4138-007-0060, 0070, 0080 Signed, Sealed,Attested And delivered. in our presence: FIRST WITNESS: Sign: Print Name: Address: oC'ft it>e 1.7:6 SECOND WITNESS: Sign: Print Naine: 4,-ei Ty), 45 Address: 3 44z) F aco- STATE OF FLORIDA COUNTY OF MIAMI-DADE COVENANTORS: 3BROAMIGO DEVELOPMENT ONE, LLC., A Florida Limited Liability Company. By: KEITfi-DTAMOND Manager 3BROAMIGO DEVELOPMENT, LLC., A Florida Limited Liability Company. By:_ GLEN STOLZENBERG Manager - The foregoing instrument was acknowledged before me this day of 2C0- by Keith Diamond, Manager of 3Broamigo Development One, LLC., a Florida Limited Liability Company and Glenn Stolzenberg, Manager of 3Broamigo Development, LLC., A Florida Limited Liability Company. He/She is personally known or has produced as identification. [SEA SUSANA A DIAZ *i MY COMMISSION #FF173128 EXPIRES October 30, 2018 7 Fr)151 Fkorldariotary ervor,t+ off) NOTARY PVBLIC S1MTE OF FLORIDA Print Name: (...),',>21,1-'4 Commission No.: TE 1131 2e, Commission Expires: ocA LOCAI"ION: 801 SW 8 STREET MIAMI, FL 33130 FOLIO #: 01-4138-006-0020, 0030, 0060, 0070, 0080, 0090 01-4138-006-0100, 0120 01-4138-007-0060, 0070, 0080 CITY OF MIAMI a municipal Corporation of the State of Florida Daniel J. Alfonso City Manager APPROVED AS TO CONTENT: Juvenal Santana, P.E. CFM Director, Department of Public Works APPROVED AS TO INSURANCE REQUIREMENTS: Anne -Marie Sharpe Director of Risk Management APPROVED AS TO FORM AND CORRECTNESS: Victoria Mendez City Attorney LOCATION: 801. SW 8 STREET MIAMI, FL 33130 FOLIO #: 01-4138-006-0020, 0030, 0060, 0070, 0080„ 01-4138-006-0100, 0120 01 -4138-007-0060„ 0070, 0080 EMI:M[17A LEGAL DESCRIPTION Tract A and Tract B. "3BROAM.1.00" according to the Plat thercof as recorded in Plat .3- A 172, Page 23, of the Public Records of Miarni-Dade County,. Florida. LOCATION: 801 SW 8 STREET MIAMI, FL 33130 FOLIO #: 01-4138-006-0020, 0030, 0060, 0070, 0080, 0090 01-4138-006-0100, 0120 01-4138-007-0060, 0070, 0080 EXHIBIT B DESCRIPTION OF NON-STANDARD IMPROVMENTS 1. LANDSCAPE 2. IRRIGATION 3. BONDED AGGREGATE SURFACES 4. PAVERS FLORIDA DEPARTMENT OF TRANSPORTATION LANDSCAPE, IRRIGATION, BONDED AGGREGATE SURFACES AND PAVERS MAINTENANCE MEMORANDUM OF AGREEMENT WITH THE CITY OF MIAMI This AGREEMENT, entered into on , 20 , byand 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 corporationof the State of Florida, hereinaftercalled the CITY, and collectively referredto as the, PARTIES. RECITALS: A. The DEPARTMENT has jurisdiction over State Road (SR) 90 (US- 41) (SW 8th Street - Eastbound Pair) , SR-90 (US-41) (SW 7th Street - Westbound Pair), and SR-7 (US-441) (SW 8th Avenue), which are located within the limits of the CITY; and 3. The CITY, pursuant to Permit # 2015 L 690 010, has drafted. design plans forbeautification improvements on. S13-90 from SW EW." Court to SW 8th. Amenue, and on SW 8t1 Avenue. from SW 7th Street to SW 8 Street, the limits of which are described in the attached Exhibit 'A' (the. PROJECT LIMITS) , which by reference shall become (1. part of this AGREEMENT; ad. C. The CITY will install landscape, irrigation, bonded aggregate surfaces and pavers: in accordance with thedesign plans for Permit # 2015 L 690 010 (the "Project"), as approved by the DEPARTMENT; and. D. The, CITY is aware this AGREEMENT will supplement all maintenance requirements between. the DEPARTMENT and: the CITY for all previously executed Permits and Agreements. E. The PARTIES to this AGREEMENT mutually recognize. the need for enteringinto an agreement designating and settinq forth. the CITY's responsibilities with regards to. the maintenance of all the landscape, irrigation, bonded. aggregatesurfaces and pavers within. the. PROJECT LIMITS; and. i.ramince Niemm11411“yr Agromou be twee4141mi(111 Devultment of -Fran g)orta 6(.)11 nid (iv (41/1 ii Page 1 of 14 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 landscape, irrigation, bonded aggregate surfaces and pavers 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 landscape, irrigation, bonded aggregate surfaces and pavers 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 landscape, irrigation, bonded aggregate surfaces and pavers 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: Maintenance Memorandum of 2kgreement between Florida Depamnent or Transportation and City of Mtami Page 2 of 14 3.1. General Requirements: a. Removing and;pcsing of litter from PROJECT LIMITS in accordance with. all applicable government rules, regulations, policies, procedures, guidelines, and manuals, as amended. from . time to time. b. Removing and dispbsing of all litter and any other debris resultingfrom the activities described by 3.2 thrbugh 3.4. 3.2. Landscape and Irrigation: a) Pruning all plant materials, which. include trees, shrubs and ground covers, and parts thereof., includdng sil material from. private property endroaching into. the: DEPARTMENT'S Right -of -Way. h) Ail 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 8.5 feet over sidewalks. C Removing and properly disposingaf 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, incorpbrated herein byreference, and all applicable, DEPARTMENT guidelines, standards and procedures, as may. beamended. from time to time. All replacement materials shall be in. accordanme with. the Project Plans and the Project Specifications and Special Provisions. d) Mulching all plant beds and. tree rings. e) Removing anddisposing of all undesirable vegetation including but not limited to weeding of plant beds and removal of invasive exotic plant materials. 5) Wateringand fertilizing: all plants as needed to maintain. the plant materials in a healthyandvigorous growing' condition. mairammceroemommiumaAgwmaatmweenHoridarkrammmorrmmpom16onamiotAMimi Page 3 of 14 g) Repairing irrigation systems as needed. Paying for all water use and all costs associated therewith. h) Removing and disposing of litter from roadside and median strips in accordance with all applicable government rules, regulations, policies, procedures, guidelines, and manuals, as amended from time to time. i) Repairing all sidewalks damaged by landscaping found inside and outside the DEPARTMENT's Right -of -Way. j) Removing and disposing of all trimmings, roots, branches, litter, and any other debris resulting from the activities described by 3.A through 3.1. 3.3. Bonded Aggregate Surfaces: a. Performingroutine and regularinspections of thebonded. aggregate surfaces to ensure that the surface isfully functional; identifying damage and/or malfunctions in the surfaces; and repairing and/or replacing damaged. bonded aggregate surfaces 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 bonded aggregate surfaces for gaps, settlement, drop- offs and other deficiencies described in this AGREEMENT for the life of the boned aggregate. Ensure and document in this survey that the surface friction. of the bonded aggregate surface meets or exceeds the surface friction of the existing concrete sidewalk areas. c. Gaps within. the bonded aggregate surfaces shall not exceed a quarter (1/4) of an inch. Gaps at the interface (perimeter) between the bonded aggregate surfaces 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 planted within the bonded. aggregate surfaces. Maintenance \ileirtorandurn ol Agreement between Florida Department of transportation and City of Miami Page 4 of 14 d. Differential settlement within the bonded aggregate surfaces shall not exceed a quarter (1/4) of an inch in depth. Differential settlement at the interface (perimeter.) between the bonded aggregate surfaces 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 planted within the bonded aggregate surfaces. e. When remedial action is required in accordance with the above requirements, the CITY at its own expense. shall complete all necessary repairs within ri.i.nety (90) days of the date the deficiency is identified. 3.4, Decorative Pavers: a. Sweep the decorative pavers periodically to keep it free of debris and to maintain an aesthetically pleasing condition. A light pressure washing may be necessary for heavy stain removal or cleaning. b. The CITY shall conduct annual condition surveys of the decorative pavers, including their perimeter concrete edges for gaps, settlement, drop-offs, and other deficiencies for the life of the decorative pavers. c. Performing routine and regular inspections of the decorative pavers, including their perimeter concrete edges to ensure that the surface is American with Disabilities Act (ADA) compliant. d. Gaps within. the decorative pavers shall not exceed a quarter (1/4) of an inch. e. Differential settlement within the decorative pavers shall not exceed a quarter (0.25) of an inch in depth. f. Undertaking the maintenance and repair (when needed) of decorative pavers, including their perimeter concrete edges. g.F'or any routine repairs or replacement due to noticeable color scarring or surface deterioration of the Maintenance* \o andun of Agreement taetween I Ikirida Department o1 ian porttatrrni and ( twfi'Miami Page 5 of 14 decorative pdvers, the product authdrized installer should be contacted_ h_ When remedial action is required in. accordance. with. the above requirements, the CITY at its own expense shall complete all necessary repairs within. thirty (30) days of the date the deficiency is identified_ 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 requirethe closure. of a traffic lane in. the. DEPARTMENT's right-of-way. Laneclosure requests shall be submitted. through the. District Six Lane Closure Information System, to. the DEPARTMENT's area Permit Manager and. iri. 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 ofthe landscape, irrigation, bonded aggregate surfaces and pavers to ensure that the CITY is performing its duties pursuant to this AGREEMENT. The Department shall share. with the CITY its inspection. findings, andmay 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 obtainingcopies of ail applicable rules, regulations, policies, procedures, guidelines, and. manuals, and. the Project Specification and. Special Provisions, as may be, amended from. time to. timeu 4. MAINTENANCE DEFICIENCIES If at any time it shall come totheattention of the DEPARTMENT that the CITY's responsibilities as established herein are not being properly accomplished. pursuant to the terms et 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. Fromthe, date of receipt of the ndtice, the CITY shall have a period of thirty (30) calendar days, withinwhich to correct the. cited. deficiency. or deficiencies. Receipt is determined inaccordance with,. Section 5 of this AGREEMENT. maimmmeamemomidmorAgremhfloomweolliemiapmalmmitorralavonatiorlamiciermoaa Page 6 of 14 If said deficiencies are not corrected within this time period, the. DEPARTMENT may, at its option, proceed as follows: a. Maintain. thelandscape, irrigation, bonded. aggregate surfaces and pavers 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, irrigation, bonded aggregate surfaces and pavers locatedwithin 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. 62O Miami, Florida 33172-5800 Attn: District Maintenance Engineer To the CITY: City of Miami 444 SW 2nd Avenue Miami, Florida 33130 Attention: CITY Manager. Notices. shall be deemed. to have been received bythe, 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 landscape, irrigation, bonded aggregate surfaces andpavers addressed by this AGREEMENT may be removed, relocated or adjusted at any timein. the future, at the. DEPARTMENT's sole discretion. In the event that the DEPARTMENT relocates or adjusts thelandscape, irrigation, bpnded aggregate surfaces and pavers, the CITY's maintenance responsibilities will survive the relocation or adjustment, as long as the materials remain within. the Project Limits. Maintenance Memorandum of Agreenterit between Florida Department of Transportation and City ()I'M tam Page 7 of1.4 7. TERM NATION This AGREEMENT is subject to termination under any one of the following conditions: a. By the DEPARTMENT, if the CITY fails to performits duties under Section 3 of this AGREEMENT, following the thirty. (30) days written notice, as specified in. Section. 4 of this AGREEMENT. b. Inaccordance with Section. 287.058(1) (c), Florida. Statutes, the DEPARTMENT shall reserve the right to unilaterallycancel this. AGREEMENT if the CITY refuses to allow public access to any orall documents, papers, letters, of other materials made or received. by the. CITY pertinentto this AGREEMENT which.. are subject to provisions of Chapter 119, of the Florida Statutes. c. If mutually. agreed toby both parties, upon. thirty (30) days advance notice. An agreement to terminate shall be valid onlyif made in. wTlting and executed with the same formalities as this AGREEMENT. 8. TERMS a. Theeffectivedate of this AGREEMENT shall commenceupon. execution by. the PARTIES and. shall continue so long as the IMPROVEMENTS, remdin in place until. termination as set forth in. Section 7. b. E-Verify The CITY's Contractors or. Vendors shall: i. Utilize the U.S. Department of Homeland Security's Fl-Verify system to verify the employment eligibility of all new employees hired by the Vendor/Contractor during. the. term of the contract; and. Expresslyrequire any subcontractors performing work. or providing. services pursuant to. the state, contract to likewise utilize, the. U.S. Department. of Homeland Secuxity's E -Verify system to verify the. employmenl. eligibility. of all new. employees MaimenmceMomyramhilm4AgeemmthoweelalothiaDepartmmtorftmsportmlonantiCAyaMmli Page 8 of 14 hired. by. the subcontractor during the contract term_ (Executive Order Nurriber 2011-02) The CITY shall im3ert. the above.. clause. into any contracti. entered into by the CITY with vendors or contractors hired by the CITY for purposes of performing its duties under this AGREEMENT. This writing embodies the entire. AGREEMENT and.. understanding between the. PARTIES hereto and there are no ether agreements and. understanding, oral or written, with reference to 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. connent 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 tobe 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 arisingout 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. A modification or waiver of any of the provisions el this AGREEMENT shall be effective only if made in writing and executed with. the same formality as this AGREEMENT. The section. headings contained in this AGREEMENT are. for reference purposes only and. shall not affect the meanincj. or interpretation.. he No term orprovision. of this AGREEMENT shall be interpreted for or against either Party. because. the Party or its legal representative, drafteA the.. provision. k. The DEPARTMENT is a state. agency, self -insured andsubject to theprovisions of Section. 768.28, Florida. Statutes, as may be amended. from.. time. to time. Nothi ng. in. this AGREEMENT' shall be deemed or otherwise, interpreted. as waiving. the MaimemmeNiarmandumaAgearimbetweelffkgidarkpammitorfrmsporwicmmUThyaMiani Pw9olfi.41, DEPARTMENT's sovereign. immunity protections, or as increasing the limits of liability asset 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 promptly indemnify, defend, save and hold harmless the DEPARTMENT, its officers, agents, representatives and employees from any and all losses, expenses, finds, fees, taxes, assessments, penalties, costs, damages, jud(jments, claims, demands, liabilities, attorney's fees, (including regulatory and appoilate fees) , and suits of any nature orkind whatsoever caused by, arisingout of, or related. to the CITY's exorcise 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, exdept that neither the CITY nor any of its officers, agents, employees or representatives will beliable 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 puy for the defense of the DEPARTMENT, or at the DEPARTMENT's option, to participate and associate with the DEPARTMENT in thedefense and trial of any claim andany related settlement ngotiations, shall betriggeredimmedately upon the CITY's receipt, of the DEPARTMENT's notice of claimfor indemnification. Thenotice. of, claim for indemnification shall be deemed received if the DEPARTMENT sendsthe 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. ..irudemnify the DEPARTMENT. The. CITY shall payall 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 occurrecl. prior to termination or expiration of this AGREEMENT. maimenancememmuthmlorAgeemenlimweelmorithokparaaemortrlinsporlationamicilyam6mi Page 1 0 of 14 The CITY's evaluation of liability. or its inability to eyaluate 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. MairammeeNielmoamhimorAgrevm0Mwmflimi&MerammmaTmlisporlational04:44M6ma Page 11 of 14 IN WITNESS WHEREOF, the parties hereto ha.ve caused these presents to be executed, the day and. year firat above. written_ CITY OF M : STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION: BY: BY: CITY Mayor District. Director et Transportation, Operations ATTEST: (SEAL) ATTEST: CITY. Clerk Executive Secretary LEGAL VIEW: BY: BY: CITY Attorney District Chief Counsel Nlaintenance Memorandum of Agreement betwen Florida Department of Transportation and ity M Pim Page 12 of 14 EXHIBIT 'A' PROJECT LIMITS Below are the limits of the landscape,. irrigation, bonded aggregate surfaces and pavers to be maintained under this AGREEMENT. State Road N 1) 90 (US-41) (SW 8th Street - Eastbound Pair) 2) 90 (US-41) (SW 7th Street - Westbound Pair 3) 7 (US-441) (SW 8th Avenue) 1) 90 (US-41) (SW 6" Street - Eastbound Pair) from SW 8th Court to SW 8th Avenue 2) 90 (US-41) (SW 7th Street - Westbound Pair) from SW 8th Court to SW 8th Avenue 3) 7 (US-441) (SW 8th Avenue) from SW 7th Street to SW 8th Street County: Dade Nlaintenance Memorandum of Agreemont botween Florida 1),mm-orient -Fransportabon and (1'4. of Ni ia.mi Page 13 of 14 EXHIBIT '13' CITY OF MIAMI RESOLUTION To be herein incorporated once ratified by the CITY Council. MaiwerrancodealmmbriaAgNmenOmwwifio6darkpamacmorhanswaatimIdmAyamimla Page 14 of 14