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HomeMy WebLinkAboutExhibitFLORIDA DEPARTMENT OF TRANSPORTATION LANDSCAPE, IRRIGATION, AND BONDED AGGREGATE SURFACES MAINTENANCE MEMORANDUM OF AGREEMENT WITH THE 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. M1x0*#41ftm A. The DEPARTMENT has jurisdiction over State Road (SR) 5 (US - 1) (Biscayne Boulevard) from NE 56th Street to NE 58th Street, which are located within the limits of the CITY; and B. The CITY, pursuant to Permit # 2019-L-691-00013, has drafted design plans for beautification improvements on SR -5 from NE 56th Street to NE 58th Street, 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 CITY will install landscape, irrigation, and bonded aggregate surfaces in accordance with the design plans for Permit # 2019-L-691-00013 (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 entering into an agreement designating and setting forth the CITY's responsibilities with regards to the maintenance of all the landscape, irrigation, and bonded aggregate surfaces within the PROJECT LIMITS; and Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 1 of 13 F. The CITY, by Resolution No. , dated , attached hereto as Exhibit `B', which by reference shall become a part of this AGREEMENT, desires to enter into this AGREEMENT and authorizes its officers to do so. NOW, THEREFORE, for and in consideration of the mutual benefits contained herein and other good and valuable consideration, the PARTIES covenant and agree as follows: 1. RECITALS The recitals in this AGREEMENT are true and correct, and are incorporated herein by reference and made a part hereof. 2. DEPARTMENT RESPONSIBILITIES The PARTIES agree that the execution of this AGREEMENT shall constitute an assignment of all maintenance responsibilities pertaining to the landscape, irrigation, and bonded aggregate surfaces 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, and bonded aggregate surfaces 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, and bonded aggregate surfaces 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 Agreement between Florida Department of Transportation and City of Miami Page 2 of 13 3.1. General Requirements: a. Removing and disposing of litter from PROJECT LIMITS in accordance with all applicable government rules, regulations, policies, procedures, guidelines, and manuals, as amended from time to time. b. Removing and disposing of all litter and any other debris resulting from the activities described by 3.2 through 3.3. 3.2. Landscape and Irrigation: a) Pruning all plant materials, which include trees, shrubs and ground covers, and parts thereof, including all material from private property encroaching into the DEPARTMENT'S Right -of -Way. b) All pruning and trimming will follow the Maintenance Rating Program Handbook which specifically requires no encroachment of trees, tree limbs or vegetation in or over travel way (or clear zone) lower than 14.5 feet, or lower than 8.5 feet over sidewalks. c) Removing and properly disposing of dead, diseased or otherwise deteriorated plants in their entirety, and replacing those that fall below the standards set forth in the Project Plans and in the Project Specifications, incorporated herein by reference, and all applicable DEPARTMENT guidelines, standards and procedures, as may be amended from time to time. All replacement materials shall be in accordance with the Project Plans and the Project Specifications and Special Provisions. d) Mulching all plant beds and tree rings. e) Removing and disposing of all undesirable vegetation including but not limited to weeding of plant beds and removal of invasive exotic plant materials. f) Watering and fertilizing all plants as needed to maintain the plant materials in a healthy and vigorous growing condition. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 3of13 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.I. 3.3. Bonded Aggregate Surfaces: a. Performing routine and regular inspections of the bonded aggregate surfaces to ensure that the surface is fully 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 Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 4 of 13 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 ninety (90) 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 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, irrigation, and bonded aggregate surfaces to ensure that the CITY is performing its duties pursuant to this AGREEMENT. The Department shall share with the CITY its inspection findings, and may use those findings as the basis of its decisions regarding maintenance deficiencies, as set forth in Section 4 of this AGREEMENT. The CITY is responsible for obtaining copies of all applicable rules, regulations, policies, procedures, guidelines, and manuals, and the Project Specification and Special Provisions, as may be amended from time to time. 4. MAINTENANCE DEFICIENCIES If at any time it shall come to the attention of the DEPARTMENT that the CITY's responsibilities as established herein are not being properly accomplished pursuant to the terms of this AGREEMENT, the DEPARTMENT may, at its option, issue a written Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 5 of 13 notice, in care of the CITY MANAGER, to notify the CITY of the maintenance deficiencies. From the date of receipt of the notice, the CITY shall have a period of thirty (30) calendar days, within which to correct the cited deficiency or deficiencies. Receipt is determined in accordance with Section 5 of this AGREEMENT. If said deficiencies are not corrected within this time period, the DEPARTMENT may, at its option, proceed as follows: a. Maintain the landscape, irrigation, and bonded aggregate surfaces 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, and bonded aggregate surfaces 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 444 SW 2nd Avenue Miami, Florida 33130 Attention: CITY Manager Notices shall be deemed to have been received by the end of five (5) business days from the proper sending thereof unless proof of prior actual receipt is provided. 6. REMOVAL, RELOCATION OR ADJUSTMENT OF THE IMPROVEMENTS The PARTIES agree that the landscape, irrigation, and bonded aggregate surfaces addressed by this AGREEMENT may be removed, relocated or adjusted at any time in the future, at the Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 6 of 13 DEPARTMENT's sole discretion. In the event that the DEPARTMENT relocates or adjusts the landscape, irrigation, and bonded aggregate surfaces, 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. 8. TERMS a. The effective date of this AGREEMENT shall commence upon execution by the PARTIES and shall continue so long as the IMPROVEMENTS remain in place until termination as set forth in Section 7. b. E -Verify The CITY shall: i. Utilize the U.S. Department of Homeland Security's E -Verify system to verify the employment eligibility of all new employees hired by the Vendor/Contractor during the term of the contract; and Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 7 of 13 ii. Expressly require any subcontractors performing work or providing services pursuant to the state contract to likewise utilize the U.S. Department of Homeland Security's E -Verify system to verify the employment eligibility of all new employees hired by the subcontractor during the contract term. (Executive Order Number 2011-02) The CITY shall insert the above clause into any contract entered into by the CITY with vendors or contractors hired by the CITY for purposes of performing its duties under this AGREEMENT. C. This writing embodies the entire AGREEMENT and understanding between the PARTIES hereto and there are no other agreements and understanding, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. d. The CITY may assign its rights, obligations, or responsibilities hereunder to the owner and/or tenant of the property abutting the DEPARTMENT Right -of -Way without further written consent from the DEPARTMENT, without releasing the CITY from its obligations and/or responsibilities hereunder. e. This AGREEMENT shall be governed by and constructed in accordance with the laws of the State of Florida. Any provisions of this AGREEMENT found to be unlawful or unenforceable shall be severable and shall not affect the validity of the remaining portions of the AGREEMENT. f. Venue for any and all actions arising out of or in connection to the interpretation, validity, performance or breach of this AGREEMENT shall lie exclusively in a state court of proper jurisdiction in Leon County, Florida. g. A modification or waiver of any of the provisions of this AGREEMENT shall be effective only if made in writing and executed with the same formality as this AGREEMENT. i. The section headings contained in this AGREEMENT are for reference purposes only and shall not affect the meaning or interpretation hereof. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 8 of 13 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 promptly indemnify, defend, save and hold harmless the DEPARTMENT, its officers, agents, representatives and employees from any and all losses, expenses, fines, fees, taxes, assessments, penalties, costs, damages, judgments, claims, demands, liabilities, attorney's fees, (including regulatory and appellate fees), and suits of any nature or kind whatsoever caused by, arising out of, or related to the CITY's exercise or attempted exercise of its responsibilities as set out in this AGREEMENT, including but not limited to, any act, action, neglect or omission by the CITY, its officers, agents, employees or representatives in any way pertaining to this AGREEMENT, whether direct or indirect, except that neither the CITY nor any of its officers, agents, employees or representatives will be liable under this provision for damages arising out of injury or damages directly caused or resulting from the sole negligence of the DEPARTMENT. The CITY's obligation to indemnify, defend and pay for the defense of the DEPARTMENT, or at the DEPARTMENT's option, to participate and associate with the DEPARTMENT in the defense and trial of any claim and any related settlement negotiations, shall be triggered immediately upon the CITY's receipt of the DEPARTMENT's notice of claim for indemnification. The notice of claim for indemnification shall be deemed received if the DEPARTMENT sends the notice in accordance with the formal notice mailing requirements set forth in Section 5 of this AGREEMENT. The DEPARTMENT's failure to notify the CITY of a claim shall not release the CITY of the above duty to defend and indemnify the DEPARTMENT. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 9 of 13 The CITY shall pay all costs and fees related to this obligation and its enforcement by the DEPARTMENT. The indemnification provisions of this section shall survive termination or expiration of this AGREEMENT, but only with respect to those claims that arose from acts or circumstances which occurred prior to termination or expiration of this AGREEMENT. The CITY's evaluation of liability or its inability to evaluate liability shall not excuse the CITY's duty to defend and indemnify the DEPARTMENT under the provisions of this section. only an adjudication or judgment, after the highest appeal is exhausted, specifically finding the DEPARTMENT was solely negligent shall excuse performance of this provision by the CITY. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 10 of 13 IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day and year first above written. CITY OF MIAMI: BY: CITY Manager ATTEST: BY: CITY Clerk CITY Attorney STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION: BY: District Director of Transportation Operations (SEAL) ATTEST: Executive Secretary LEGAL REVIEW: BY: District Chief Counsel Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 11 of 13 EXHIBIT `A' PROJECT LIMITS Below are the limits of the landscape, irrigation, and bonded aggregate surfaces to be maintained under this AGREEMENT. State Road Number: 5 (US -1) (Biscayne Boulevard) Agreement Limits: From NE 56th Street to NE 58th Street County: Miami -Dade Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 12 of 13 EXHIBIT `B' CITY OF MIAMI RESOLUTION To be herein incorporated once ratified by the CITY Commission. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Page 13 of 13