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Resolution 2020-31448 RESOLUTION NO. 2020-31448 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE FLORIDA DEPARTMENT OF TRANSPORTATION RUE VENDOME PLAZA IMPROVEMENTS MAINTENANCE MEMORANDUM OF AGREEMENT, BETWEEN THE CITY OF MIAMI BEACH AND THE FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT), CONVEYING FULL MAINTENANCE RESPONSIBILITIES TO THE CITY FOR THE IMPROVEMENTS FROM RUE VENDOME TO JUST WEST OF BAY DRIVE, WITHIN THE FDOT RIGHT OF WAY ALONG 71ST STREET (EASTBOUND) AND NORMANDY DRIVE (WESTBOUND) KNOWN AS STATE ROAD 934 (FORMERLY KNOWN AS STATE ROAD 828). WHEREAS, in 2017, the City commissioned a professional engineering consultant for the design of the permanent closure of Rue Vendome, in accordance with the recommendations of the North Beach Master Plan, for the creation of a pedestrian oriented plaza; and WHEREAS, the design included the removal of the existing asphalt paving, concrete curb and gutters, adjacent sidewalks and walkways, up to and surrounding the fountain, and raising the area using new white concrete pavement and permeable pavers; and WHEREAS, Oolite stone benches, steps, and ramps have been designed to harmonize the elevated plaza with adjacent commercial properties to the west; and WHEREAS, the existing landscaping will be supplemented with landscape furniture (benches, trash and recycle receptacles), new shade trees, shrubs and ground cover throughout the space, and new lighting at the plaza is mounted on structural poles to facilitate decorative lights and future artistic displays; and WHEREAS, these improvements extend into the Florida Department of Transportation (FDOT)jurisdiction along State Road SR-934, also known as Normandy Drive — (Westbound), and 71st Street—(Eastbound), from Rue Vendome to just west of Bay Drive; and WHEREAS, FDOT, as a requirement for the issuance of the construction and installation permits, has requested that the City be responsible for the maintenance of the improvements via a Maintenance Memorandum of Agreement(MMOA), see Attachment"A"; and WHEREAS, the improvements proposed include the use of materials that are not typical within the right of way under the jurisdiction of FDOT, which include, but not limited to landscape and associated features, permeable and specialty surfaces, decorative sidewalks, drainage features and systems, electrical and video features and systems, oolite sitting blocks, regular benches, garbage containers and bicycle racks, and the City of Miami Beach has executed several similar agreements in the past where landscape and nonstandard materials have been installed; and WHEREAS, FDOT will approve the permits for the proposed improvements, as long as the City agrees to execute a Maintenance Memorandum of Agreement, with the City accepting full maintenance responsibility for the area. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, hereby, approve and authorize the Mayor and City Clerk to execute the Florida Department of Transportation Rue Vendome Plaza Improvements Maintenance Memorandum of Agreement between the City of Miami Beach and the Florida Department of Transportation (FDOT), conveying full maintenance responsibilities to the City for the improvements from Rue Vendome to just west of Bay Drive, within the FDOT right of way along 71st Street (eastbound) and Normandy Drive (westbound) known as State Road 934 (formerly known as State Road 828). PASSED and ADOPTED this /y day of Ot ber , 2020. F;i 8 iN CORPORATED , DAN GELBER, MAYOR ATTEST: <-7291 APPROVED AS TO tQ/i c J a FORM& LANGUAGE & FOR ECUTION RAFAEL E. GRANADO, CITY CLERKio(6, b City Attorney Date FLORIDA DEPARTMENT OF TRANSPORTATION RUE VENDOME PLAZA IMPROVEMENTS MAINTENANCE MEMORANDUM OF AGREEMENT WITH THE CITY OF MIAMI BEACH 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 BEACH, a municipal corporation of the State of Florida, hereinafter called the CITY, and collectively referred to as the PARTIES. RECITALS: A. The DEPARTMENT has jurisdiction over State Road (SR) 934 (71st Street - Eastbound) and SR-934 (Normandy Drive - Westbound) from Rue Vendome to just west of Bay Drive, a two- way roadway pair, which is located within the limits of the CITY; and B. The CITY, pursuant to Permits 2020-C-691-00006, 2020-L-691- 00013 and 2020-H-691-00313, has drafted design plans for improvements along 71St Street and Normandy Drive, from Rue Vendome to just west of Bay Drive, 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 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 areas within the PROJECT LIMITS, pursuant to the Project; and D. 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 : Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 1 of 18 1. RECITALS The recitals in this AGREEMENT are true and correct, and are incorporated herein by reference and made a part hereof. 2 . ASSIGNMENT OF MAINTENANCE RESPONSIBILITIES The PARTIES agree that the execution of this AGREEMENT shall constitute an assignment of all maintenance responsibilities pertaining to areas improved, which include, but not limited to landscape and associated features, permeable and specialty surfaces, decorative sidewalks, drainage features and systems, electrical and video features and systems, oolite sitting blocks, regular benches, garbage containers and bicycle racks, (collectively the "IMPROVEMENTS") 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 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, with respect to the landscape, the CITY shall maintain same 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 IMPROVEMENTS 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: 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. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 2 of 18 b. Removing and disposing of all trimmings, roots, branches, litter, and any other debris resulting from the activities described in this AGREEMENT. c. 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. d. 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. e. Repair all DEPARTMENT assets damaged by the IMPROVEMENTS throughout the life of the IMPROVEMENTS. All repairs to DEPARTMENT assets shall be in accordance with all applicable DEPARTMENT guidelines, standards, and procedures . 3.2 Landscape and Associated Features a. Mowing, cutting and/or trimming and edging the grass and turf within the PROJECT LIMITS. b. 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. c. 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 10 feet over sidewalks . d. 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 Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 3 of 18 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 . e. Mulching all plant beds and tree rings . f. Removing and disposing of all undesirable vegetation including but not limited to weeding of plant beds and removal of invasive exotic plant materials . g. Watering and fertilizing all plants as needed to maintain the plant materials in a healthy and vigorous growing condition. h. Repairing irrigation systems and associated components as needed. Paying for all water use and all costs associated therewith. i. Repairing decorative lighting systems as needed. Paying for all electricity and all costs associated therewith. j . Removing and disposing of litter from the Project Limits in accordance with all applicable government rules, regulations, policies, procedures, guidelines, and manuals, as amended from time to time. k. Repairing all sidewalks damaged by landscaping found inside and outside the DEPARTMENT' s Right-of-Way. 1. Damages to the sidewalk caused by the silva cells shall be made by the CITY. Replace the silva cells according to the manufacturer' s recommendations . Replace sidewalk above the silva cells, including any damaged sidewalk adjacent to the silva cells by saw- cutting along the existing joints . New joints will not be allowed. m. The CITY shall conduct annual condition surveys of the sidewalk slabs/flags over and adjacent to the silva cell tree root system for gaps, settlement, drop-offs and other deficiencies described in this AGREEMENT for the life of the silva cells. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 4 of 18 n. Removing and disposing of all trimmings, roots, branches, litter, and any other debris resulting from the activities described by 3 .2 .a through 3 .2 .m. 3.3 Specialty Surfaces a. Performing routine and regular inspections of the bonded aggregate surfaces, and any other specialty surfaces, to ensure that the surface is fully functional; identifying damage and/or malfunctions in the surfaces; and repairing and/or replacing damaged specialty 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 all the specialty surfaces for gaps, settlement, drop- offs and other deficiencies described in this AGREEMENT for the life of the specialty surfaces . Ensure and document in this survey that the surface friction of the specialty surfaces meet or exceed the surface friction of the existing concrete sidewalk areas . c. Gaps within the specialty surfaces shall not exceed a quarter (1/4) of an inch. Gaps at the interface (perimeter) between the specialty 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 specialty surfaces. d. Differential settlement within the specialty surfaces shall not exceed a quarter (1/4) of an inch in depth. Differential settlement at the interface (perimeter) between the specialty 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 specialty surfaces . Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 5 of 18 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. 3.4 Decorative Sidewalks a. Decorative sidewalks included in this AGREEMENT include pavers, specialty colors, scoring, and broom- finished sidewalks . b. Performing routine and regular inspections of the decorative sidewalks . Identify damages on the surfaces . Repair and/or replace damaged decorative sidewalks 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. c. The CITY shall conduct annual condition surveys of the decorative sidewalks for gaps, settlement, drop- offs and other deficiencies described in this AGREEMENT for the life of the decorative sidewalks . d. Gaps within the decorative sidewalks shall not exceed a quarter (1/4) of an inch. Gaps at the interface (perimeter) between the decorative sidewalks and the adjacent standard 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 decorative sidewalks . e. Differential settlement within the decorative sidewalks shall not exceed a quarter (1/4) of an inch in depth. Differential settlement at the interface (perimeter) between the decorative sidewalks and the adjacent standard 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 decorative sidewalks . Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 6 of 18 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. Paint, repair and/or replace damaged concrete slabs/flags shall be in kind (texture, geometry, color, strength, etc. ) and in accordance with all applicable DEPARTMENT guidelines, standards, and all applicable American with Disabilities Act (ADA) requirements, as amended from time to time. 3.5 Drainage Features a. Drainage features and systems built outside of the DEPARTMENT' S right-of-way shall be maintained by the CITY according to the terms of this Section. b. Maintain the drainage system operating as originally designed. Clean and desilt the drainage system, including but not limited to pipes, inlets, manholes, structures, french drains, trench drains, yard drains, as debris and other materials can accumulate throughout the life of the system. Fix all damaged drainage systems . c. Perform routine and regular inspection of the drainage features to assure that the systems are fully functional. Identifying damaged, malfunctions, repairs and replaced broken components . d. For all drainage features connected to the DEPARTMENT' S systems, all inspections and maintenance shall follow all Local, State and Federal guidelines and laws, including meeting the terms of all State permitting requirements . e. When remedial action is required in accordance with the above requirements, the CITY at its own expense shall complete all necessary repairs within twenty (20) days of the date the deficiency is identified. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 7 of 18 3. 6 Electrical and Video Features a. The CITY shall be responsible at no cost to the DEPARTMENT for the maintenance of all the electrical features, systems, and associated components within the PROJECT LIMITS. b. The CITY shall be responsible at no cost to the DEPARTMENT for the maintenance of all the video features, systems, and associated components within the PROJECT LIMITS. c. The CITY assumes responsibility for the cost of electricity, maintenance and repairs to the entire electrical and video systems . d. The CITY is responsible for the removal, disposal and replacement of knock-down electrical and video components caused by any incident in a manner that will protect the general public. e. The CITY shall conduct maintenance and repair work in a safe manner to ensure the least practical interference with the roadway and pedestrians . f. The CITY shall perform all work in accordance with the latest laws of the State of Florida, applicable municipal ordinances, regulations and requirements of the Public Services Commission, the current standard of the National Electric Code, the latest edition of the Department of Transportation Standard Specifications for Road Bridge Construction, and the latest edition of the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) and amendments thereto. g. It is understood between the PARTIES hereto that the lighting systems covered by this AGREEMENT may be removed, relocated or adjusted at any time in the future as found necessary by the DEPARTMENT in order that the adjacent State Road be widened, altered or otherwise changed and maintained to meet with future criteria or planning of the DEPARTMENT. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 8 of 18 h. Perform routine and regular inspections of the electrical and video systems to identify damage and/or malfunctions . Repair or replace broken or missing equipment. 3.7 Miscellaneous Improvements a. All miscellaneous features built and installed by the CITY, including but not limited to oolite sitting blocks, regular benches, garbage containers and bicycle racks, shall be maintained by the CITY. b. Remove and dispose of litter in accordance with all applicable government rules, regulations, policies, procedures, guidelines, and manuals, as amended from time to time. c. The CITY shall perform routine and regular inspections of these features to assure that each are fully functional. Identifying damaged, malfunctions, repairs and replaced broken components . d. When remedial action is required in accordance with the above requirements, the CITY at its own expense shall complete all necessary repairs within seven (7) days of the date the deficiency is identified. The CITY shall submit all services logs, inspections and surveys to the DEPARTMENT Warranty Coordinator as required in the above maintenance 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 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. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 9 of 18 4. MAINTENANCE DEFICIENCIES If at any time it shall come to the attention of the DEPARTMENT that the CITY's responsibilities as established herein are not being properly accomplished pursuant to the terms of this AGREEMENT, the DEPARTMENT may, at its option, issue a written notice, in care of the CITY MANAGER, to notify the CITY of the maintenance deficiencies . From the date of receipt of the notice, the CITY shall have a period of thirty (30) calendar days, within which to correct the cited deficiency or deficiencies . Receipt 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 IMPROVEMENTS, 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 of the IMPROVEMENTS 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 Beach 1700 Convention Drive Miami Beach, Florida 33139 Attention: City Manager Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 10 of 18 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 a. 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. b. In the event that the DEPARTMENT is required to replace the sidewalk at any time as part of maintenance activities, a roadway project, or related construction activities, the DEPARTMENT shall replace the same as a concrete type sidewalk, and the CITY' s maintenance obligations under this AGREEMENT shall terminate. However, the CITY may, with the approval of the DEPARTMENT, upgrade the sidewalk type at its sole cost and expense with the understanding that the CITY shall assume all maintenance obligations for the upgraded sidewalk, and enter into a new maintenance agreement. 7. TERMINATION In addition to the provisions of Section 6 (b) hereunder, 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 unless the records are Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 11 of 18 exempt from Section 24 (a) of Article I of the State Constitution and Section 119. 07 (1) , of the Florida Statutes . c. If mutually agreed to by both parties, upon thirty (30) days written advance notice. An agreement to terminate shall be valid only if made in writing and executed with the same formalities as this AGREEMENT. d. By the CITY, upon thirty (30) days advance written notice to the DEPARTMENT. Prior to termination of the AGREEMENT under this Section, the CITY shall, at its sole cost and expense, remove all the IMPROVEMENTS and restore the area in accordance with the DEPARTMENT' S guidelines, standards, and procedures, and to the satisfaction of the DEPARTMENT, and shall further any remaining IMPROVEMENTS, and restore the area to the same or similar condition as existed prior to the installment of the IMPROVEMENTS, in accordance with the DEPARTMENT' S guidelines, standards, and procedures, and to the satisfaction of the DEPARTMENT. 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 Beach Page 12 of 18 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. 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. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 13 of 18 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, 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 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 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 Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 14 of 18 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 reasonable attorney' s 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 Beach Page 15 of 18 IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day and year first above written. CITY OF MIAMI BEACH: STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION: BY: BY: CITY Manager District Director of Transportation Operations ATTEST: (SEAL) ATTEST: CITY Clerk Executive Secretary LEGAL REVIEW: BY: BY: CITY Attorney District Chief Counsel APPROVED AS TO FORM&LANGUAGE &FOR EXECUTION 10 ( 9 ( 6 City Attorney Date Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 16 of 18 EXHIBIT 'A' PROJECT LIMITS Below are the limits of the IMPROVEMENTS to be maintained by the CITY under this AGREEMENT. State Road Number: 934 Local Street Names: 71st Street (Eastbound) Normandy Drive (Westbound) Agreement Limits: From Rue Vendome to just west of Bay Drive County: Miami-Dade Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach Page 17 of 18 EXHIBIT 'B' CITY OF MIAMI BEACH 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 Beach Page 18 of 18 Resolutions- C7 P MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Jimmy L. Morales, City Manager DATE: October 14, 2020 • SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE FLORIDA DEPARTMENT OF TRANSPORTATION RUE VENDOME PLAZA IMPROVEMENTS MAINTENANCE MEMORANDUM OF AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND THE FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT), CONVEYING FULL MAINTENANCE RESPONSIBILITIES TO THE CITY FOR THE IMPROVEMENTS FROM RUE VENDOME TO JUST WEST OF BAY DRIVE, WITHIN THE FDOT RIGHT OF WAY ALONG 71ST STREET (EASTBOUND) AND NORMANDY DRIVE (WESTBOUND) KNOWN AS STATE ROAD 934 (FORMERLY KNOWN AS STATE ROAD 828). RECOMMENDATION The Administration recommends approving the Resolution. BACKGROUND/HISTORY In 2017, the City commissioned a professional engineering consultant for the design of the permanent closure of Rue Vendome, in accordance with the recommendations of the North Beach Master Plan, for the creation of a pedestrian oriented plaza. The design included the removal of the existing asphalt paving, concrete curb and gutters, adjacent sidewalks and walkways, up to and surrounding the fountain, and raising the area using new white concrete pavement and permeable pavers. Oolite stone benches, steps, and ramps have been designed to harmonize the elevated plaza with adjacent commercial properties to the west. The existing landscaping will be supplemented with new shade trees, shrubs and ground cover throughout the space. New lighting at the plaza is mounted on structural poles to facilitate decorative lights and future artistic displays. Landscape furniture (benches,trash and recycle receptacles)is also included. These improvements extend into the Florida Department of Transportation (FOOT)jurisdiction along State Road SR-934, also known as Normandy Drive (Westbound), and 71st Street (Eastbound), from Rue Vendome to just west of Bay Drive. F DOT, as a requirement for the issuance of the construction and installation permits, has requested that the City be responsible for the maintenance of the improvements via a Maintenance Memorandum of Page 403 of 1576 Agreement(MMOA), see Attachment"A". ANALYSIS The improvements proposed include the use of materials that are not typical within the right of way under the jurisdiction of FDOT, which include, but not limited to landscape and associated features, permeable and specialty surfaces, decorative sidewalks, drainage features and systems, electrical and video features and systems, oolite sitting blocks, regular benches, garbage containers and bicycle racks. FDOT will approve the permits for the proposed improvements, as long as the City agrees to execute a Maintenance Memorandum of Agreement, with FDOT, accepting full maintenance responsibility for the area. The City of Miami Beach has executed several similar agreements in the past where landscape and nonstandard materials have been being installed. CONCLUSION The Administration recommends approving the Resolution. Applicable Area Middle Beach Is this a"Residents Right Does this item utilize G.O. to Know" item. pursuant to Bond Funds? City Code Section 2-14? Yes No Legislative Tracking Public Works ATTACHMENTS: Description o Resolution &Agreement Page 404 of 1576