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HomeMy WebLinkAboutExhibitWLORIDA DEPARTMENT OF TRANSPORTATION BRICKELL CITY CENTRE IMPROVEMENTS MAINTENANCE MEMORANDUM OF AGREEMENT WITH THE CITY OF MIAMI7 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. REr_r_TALS A. The DEPARTMENT has jurisdiction over State Road (S.R.) 90/SW 8th Street/U.S. 41 from SW 1St Avenue (M.P 17.838) to SE 1St Avenue (M.P. 18.040) and S.R. 90/U.S. 41/SW 7th Street from SW 1St Avenue (M.P. 0.090) to SE 11t Avenue (M.P. 0.292), which is located within the limits of the CITY; and. B. Pursuant to Permit # 2015 A 690 27 certain modifications and improvements within DEPARTMENT right-of-way and easements on SW 8th Street and SW 7th Street from SW 1St Avenue to SE 1St Avenue, the limits of which are further described Exhibit `A' attached hereto and made part hereof (PROJECT LIMITS), have been approved in accordance with the design plans referenced in said Permit (PLANS); and C. The CITY has agreed to maintain the above -referenced modifications and improvements within the PROJECT LIMITS and any future modifications and improvements which may be permitted by the DEPARTMENT within the PROJECT LIMITS at a later date (hereinafter the IMPROVEMENTS, and as further defined in Section 4); 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 IMPROVEMENTS; and E The CITY, attached become a by Resolution No. hereto as Exhibit `B' part of this AGREEMENT, dated which by reference desires to enter into Maintenance Memorandum of Agreement between Florida Department of Transpoftation and City of Miami Page 1 of 13 r shall 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. ASSIGNMENT The PARTIES agree that the execution of this AGREEMENT shall constitute the assignment of all maintenance and repair responsibilities and obligations pertaining to the IMPROVEMENTS within the PROJECT LIMITS to the CITY, in perpetuity. 3. DEPARTMENT RESPONSIBILITIES 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 DEPARTMENT will be responsible for the maintenance and repair of the TRAVEL LANES, which for purposes of this AGREEMENT are defined as the paved area delineated by a yellow line on one side and a white line on the other, intended for the movement of vehicles traveling through the PROJECT LIMITS, and intended to carry the vehicular operational capacity. In addition, the DEPARTMENT will maintain responsibility for the existing lighting within the PROJECT LIMITS. TRAVEL LANES do not include drop-off zones, turning lanes, bus bays, or any other paved areas built for any other specific purpose, which shall be under the responsibility of the CITY. 4. CITY'S RESPONSIBILITIES Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 2 of 13 The CITY shall inspect, manage and perform maintenance and repairs of all IMPROVEMENTS located within the PROJECT LIMITS, except as set forth in Section 3. The CITY shall further inspect the 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 the DEPARTMENT's permitting requirements. Notwithstanding the foregoing, the CITY shall be obligated to remove any IMPROVEMENTS or features within the PROJECT LIMITS that may cause an unsafe condition to the public. The CITY's maintenance and repair obligations shall extend and include, but not be limited to, sidewalks, pavers, pedestrian. ramps, curb, gutter, grass, landscape, planters, irrigation, vents, grates, handrails, drop-off zones, turning lanes, bus bays, loading and unloading areas, signs and street lighting located. within the PROJECT LIMITS, as and further stipulated in this Agreement (collectively, the "Improvements.") The CITY shall be responsible for and inspect, maintain, repair and manage or cause to be maintained and repaired all aboveground features located within the footprints of the PROJECT LIMITS, including but not limited to commercial elements, banners, pay phones, vending machines, flag poles, decorative lighting, ornamental light fixtures,, benches, ash urns, trash receptacles, bicycle racks, bus benches and shelters, ATMs, valet parking stations, play/entertainment areas, event tents and platforms, kiosks, tables and chairs, advertising items, decorations, pedestrian shelters, and other features installed within the PROJECT LIMITS from time to time, pursuant to a duly issued permit. The CITY shall also inspect, monitor and manage all permits and encroachments, including aerial encroachments within the PROJECT LIMITS. The CITY shall ensure that a CLEAR PEDESTRIAN BATH is maintained at all time in the State Right of Way and easements, within the PROJECT LIMITS. For purposes of this AGREEMENT, the CLEAR PEDESTRIAN PATH is defined as an American Disabilities Act (ADA) compliant continuous, unobstructed way of pedestrian passage within the PROJECT LIMITS, extending horizontally five (5) feet. No IMPROVEMENTS, features, obstructions or encroachments of any kind shall be permitted within the CLEAR PEDESTRIAN Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 3 of 13 PATH at any time, except as may be required, and approved by the DEPARTMENT, pursuant to the Paragraph hereunder. 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, when the DEPARTMENT does not have guidelines, standards, and procedures related to certain maintenance activities, the CITY shall maintain the IMPROVEMENTS in accordance with Federal standards, guidelines, and procedures, as- may be amended from time to time, and in accordance with the standards set forth in the PLANS, in the Project Specifications, Special Provisions and all Manufacturer's and Vendor's maintenance recommendations. The CITY shall ensure that any IMPROVEMENTS comply with the terms of this AGREEMENT and meet the DEPARTMENTS's safety guidelines. 4.1 The CITY's responsibilities and maintenance obligations hereunder shall include, but not be limited to: 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. Conducting annual condition surveys of the surfaces for gaps, settlement, drop-offs, rutting, raveling, pot holes, delamination, cracking and other deficiencies described in this AGREEMENT. d. 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. e. Undertaking the maintenance and repair (when needed) of proposed detectable warning surface as specified in the PLANS and the latest STANDARD SPECIFICATIONS FOR ROAD AND BRIDGE CONSTRUCTION and in accordance with all Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 4 of 13 applicable DEPARTMENT guidelines, applicable ADA requirements, as time. standards, and all amended from time to f. 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. -g. 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. h. 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. i. Submitting Lane Closure Requests to the DEPARTMENT when maintenance activities will require the closure of the sidewalk or 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. 5. 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 6 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 8, remove any or all IMPROVEMENTS located within the PROJECT LIMITS, and charge the CITY the reasonable cost of such removal. 6. 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 444 S.W. 2nd, Ave. 10th Floor Miami, FL 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. 7. 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. S.TERMINATION This AGREEMENT is subject to termination under any one of the following conditions: Maintenance Memorandum of Agreement between Florida Deportment of Transportation and City of Miami Page 6 of 13 a. By the DEPARTMENT', if the CITY fails to perform its duties under Section 4 of this AGREEMENT, following the thirty (30) days written notice, as specified in Section 5 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. d. However, the CITY may assign its rights, obligations, or responsibilities hereunder to the owner of the property abutting the PROJECT LIMITS without further written consent from the DEPARTMENT, without releasing the CITY from its obligations and/or responsibilities hereunder. e. 9. 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. 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 Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 7 of 13 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. 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. 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 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. 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 Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 8 of 13 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. 10.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, attorneys' 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 Section 4 of 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 made within 20 days of the Department's receipt of notice of any potential claim and deemed received if the DEPARTMENT sends the notice in accordance with the formal notice mailing requirements set forth in Section 6 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 Maintenance Memorandum of Agreement between Floiida Department of Transportation and City of Miami Page 9 of 13 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. 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. Nothing in this Agreement shall be construed as a waiver of sovereign immunity. All obligations set forth in this paragraph are subject to the limitations set forth in Florida Statutes Section 768.28. --------REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK------ -- Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 10 of 13 ems -^r e, -, ; m defga d, eLn anything w?hve, a t tothcTi�aveLanes —e p ns-bilit.y—efthe—BepaaFtFfte t - em -at l e n s iinder 1-h-J's1-l"gre r unless em i e n t its d:a t i e s— a Nothing in this Agreement shall be construed as a waiver of sovereign immunity. All obligations set forth in this paragraph are subject to the limitations set forth in Florida Statutes Section 768.28. --------REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK------ -- 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: BY: CITY Mayor ATTEST: (SEAL) CITY Clerk BY: CITY Attorney STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION: BY: District Director of Transportation Operations ATTEST: Executive Secretary LEGAL REVIEW: BY: District Chief Counsel Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miaini Page 11 of 13 " PROJECT LIMITS Below are the limits of the modifications to the State right-of- way including easements (IMPROVEMENTS) to be maintained under this AGREEMENT. State Road Number: 90/US 41 Local Road Names: SW 8th Street and SW 7th Street (a two-way pair)_ AGREEMENT Limits: State Road (S.R.) 90/SW 8th Street/U.S. 41 from SW 11t Avenue (M.P 17.838) to SE 1St Avenue (M.P. 18.040) M. S.R. 90/U.S. 41/SW 7th Street from SW 1St Avenue (M.P 0.090) to SE 13t Avenue (M.P. 0.292) County: Miami -Dade Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miairu Page 12 of 13 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 13 of 13