FDOT Stormwater Pump Stations Memorandum of Agreement Attachment D D ,v2
FLORIDA DEPARTMENT OF TRANSPORTATION
STORM WATER PUMP STATIONS
AND
POLLUTION CONTROL STRUCTURES
MAINTENANCE MEMORANDUM OF AGREEMENT
WITH THE
CITY OF MIAMI BEACH
REEME NT, made and entered into this
A da y of
lotw�� 1 20Z01, 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 and existing under the laws of
the State of Florida, hereinafter called the "CITY, "
collectively referred to as "the Parties . "
RECITALS :
A. The DEPARTMENT has jurisdiction over and maintains those
portions of State Road (S.R. ) AlA/5th Street and S.R.
907/Alton Road corridor as part of the State of Florida
Highway System; and
B. The DEPARTMENT will install storm water pump stations and
pollution control structures at the intersections of S.R.
AlA/5th Street and West Avenue (M. P. 3 . 138 along SR AlA and
M. P. 3 . 176 along S.R. AlA) , S .R. 907/Alton Road and 10
Street (M.P. 0 .437 along S.R. 907) , and S.R. 907/Alton Road
and 14th Street (M. P. 0 . 755 along S.R. 907) , in accordance
with DEPARTMENT Contract # T-6290 ("PROJECT LIMITS") , are
described in the attached Exhibit `A' , which by reference
hereto shall become a part hereof; and
C. The Parties mutually recognize the need for entering into
an agreement designating and setting forth the maintenance
responsibilities of each party; and
D. The CITY, by Resolution No. 201Z- Z4CLC%4 dated
p--�rn��\�. 2012, attached as Exhibit `BI, which is
incorporated to this agreement by reference, desires to
enter into this Agreement and authorizes its officers to do
SO.
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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, by executing this AGREEMENT, upon
issuance of Notice of Final Acceptance of the Project by
the DEPARTMENT to its contractor, all maintenance
responsibilities pertaining to the storm water pump
stations and pollution control structures (collectively
"the Structures" ) within the PROJECT LIMITS are assigned to
the CITY in perpetuity. The DEPARTMENT, however, shall be
responsible for any major repairs or the replacement of
components of the Structures, as specified in Section 3 of
this AGREEMENT.
3 . CITY' S MAINTENANCE RESPONSIBILITIES
The functions described below are to be performed by the
CITY and the CITY'S work may be subject to periodic
inspections by the DEPARTMENT, at its sole discretion.
As set forth in Section 2 of this AGREEMENT, upon Final
Acceptance of the Project by the DEPARTMENT, the CITY
agrees to operate, and routinely and periodically maintain
the Structures located within the PROJECT LIMITS at its
sole cost and expense. The CITY' S maintenance
responsibilities for the Structures shall include, but not
be limited to, the following:
a. Periodically inspecting and maintaining the Structures
and their systems, in accordance with the
manufacturer' s minimum care and maintenance
requirements, and in accordance with the Project Plans
and Specifications .
b. Adhering to the safety precautions prescribed by the
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manufacturer and enumerated in the Project Plans and
Specifications.
c. Complying with all applicable government rules,
regulations, policies, procedures, guidelines, and
manuals, as the same may be amended from time to time .
d. Maintaining a service log of all maintenance
activities . Those maintenance activities that are not
documented in a service log shall be deemed to not
have been performed.
e. Paying all costs associated with minor repairs . Minor
repairs shall include any repairs that are a part of
or incident to the routine maintenance of the
Structures as set forth in this AGREEMENT. Minor
repairs shall include, but shall not be limited to,
the routine overhaul of the pump motors .
f . Notifying the DEPARTMENT of all needed major repairs .
The CITY must notify the DEPARTMENT as soon as the
need for a major repair is discovered. A major repair
is deemed discovered if the CITY or its agent knew or
should have known of the need for a major repair.
Major repairs shall only include a complete
replacement of the Structures, the pump motors, or the
impellers. The DEPARTMENT, however, shall not be
responsible for the following major repairs :
i . Any major repairs that are needed as a result of
the CITY' s failure to perform its maintenance
responsibilities pursuant to this AGREEMENT; or
ii . Any major repairs that are the result of a
negligent act of the CITY in performing its
maintenance responsibilities pursuant to this
AGREEMENT.
The major repairs listed under Section 3 (f) i . and
3 (f) ii . shall be the sole responsibility of the CITY.
4 . MAINTENANCE DEFICIENCIES
If at any time, while this AGREEMENT is in effect, the CITY
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fails to comply with its responsibilities as established
herein or the CITY' s responsibilities are not being
accomplished in accordance with 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 identified deficiencies . Thereafter, the CITY
shall have a period of thirty (3 0) calendar days, following
receipt of the notice, within which to correct the cited
deficiency or deficiencies . The notice shall be deemed
received in accordance with Section 5 of this AGREEMENT. If
said deficiencies are not corrected within the thirty (30)
day time period, or, if the deficiencies are of a nature
that cannot be corrected within that time period and the
CITY does not commence to correct the deficiencies within
the stipulated time period, the DEPARTMENT may, at its
option, proceed as follows :
a. Maintain the Structures, or a part thereof, and invoice
the CITY for expenses incurred; or
b. Terminate this AGREEMENT in accordance with Section 7 of
this AGREEMENT, remove the Structures 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 communications 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 NW 111th Avenue, Room 6205
Miami, Florida 33172-5800
Attn: District Maintenance Engineer
To the CITY: City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
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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 STORM WATER PUMP
STATIONS OR POLLUTION CONTROL STRUCTURES
The Parties agree that the Structures covered by this
AGREEMENT may be removed, relocated or adjusted at any time
in the future, at the DEPARTMENT' s sole discretion.
7 . TERMINATION
This AGREEMENT may be terminated as follows :
a. By the DEPARTMENT, if the CITY fails to perform its
duties under Section 3, following thirty (30) days
written notice as set forth in Section 4 of this
AGREEMENT.
b. In accordance with Section 287. 058(1) (c) , Florida
Statutes (F.S. ) , 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, F.S.
8. AMENDMENT
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.
9. CONSTRUCTION
a. The section headings contained in this AGREEMENT are
for reference purposes only and shall not affect the
meaning or interpretation hereof .
b. No term or provision of this AGREEMENT shall be
interpreted for or against the Parties because the
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Parties or their legal representatives) drafted the
provision.
c. The DEPARTMENT is a state agency, self-insured and
subject to the provisions of Section 768.28,
F.S. 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,
F.S. , as may be amended from time to time.
10. ADDITIONAL TERMS
a. The CITY shall insert the following clause into any
contracts entered into between the CITY and any
vendors or contractors for the performance of the
duties set forth in this AGREEMENT:
Vendors/Contractors :
i . Shall utilize the U.S . Department of Homeland
Security' s E-Verify system to verify the
employment of all new employees hired by the
Vendor/Contractor during the term of this
Agreement; and
ii. Shall 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.
b. The term of this AGREEMENT shall commence upon
execution by all Parties . This AGREEMENT shall
continue in perpetuity or until termination as set
forth in Section 7 .
c. This writing embodies the entire agreement and
understanding between the parties hereto and there are
no other agreements or understandings, oral or
written, with reference to the subject matter of this
AGREEMENT that are not merged herein.
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d. This AGREEMENT shall not be transferred or assigned,
in whole or in part, without the written consent of
the DEPARTMENT.
e. This AGREEMENT, regardless of where executed, shall be
governed by and construed in accordance with the laws
of the State of Florida. In the event of a conflict
between any portion of the contract and Florida law,
the laws of Florida shall prevail . Any portion of the
AGREEMENT later found to be unlawful or unenforceable
shall be severed and not affect the validity of the
rest of this 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.
11. INDEMNIFICATION
Subject to Section 768.28, F.S. , 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 damage 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,
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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, or
upon actual receipt of the notice by the City. 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
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.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective the day and year first above written.
CITY OF MIAMI BEACH: STATE OF FLORIDA DEPARTMENT
OF TRANSPORTATION:
By: ,.
C M Mayor '••, lXector, Tra sportation
_.;Oerations
ORATED=
A �...• PAL A'c ,.
Attest: '4
••� tt-est: )
City Clerk CH > Executi Secretary
LEGAL REVIEW:
t
B By.
to ne �,, District Chi Counsel
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EXHIBIT `A'
PROJECT LIMITS
Below are the general limits of the storm water pump stations
and pollution control structures to be maintained under this
AGREEMENT.
State Road Number: AlA/5th Street & 907/Alton Road
Agreement Limits: At the intersections of West Avenue and S.R.
AlA/5th Street (M. P. 3 . 138 along S .R. AlA and
M. P. 3 . 176 along S.R. AlA) , S.R. 907/ Alton
Road and loth Street (M. P. 0 .437 along S .R.
907) , and S.R. 907/ Alton Road and 14th
Street (M. P. 0 . 755 along S.R. 907)
County: Miami-Dade
- 1 pump station and pollution control structure at the
intersection of West Avenue and S .R. AlA/5th Street (Station
244+20 . 31 and Station 246+20 . 00 with respect to the
baseline of survey along S .R. AlA/5th Street)
- 1 pump station and pollution control structure at the
intersection of S.R. 907/ Alton Road and 10th Street
(Station 32+92 . 88 with respect to the baseline of survey
along S.R. 907/Alton Road)
- 1 pump station and pollution control structure at the
intersection of S.R. 907/ Alton Road and 14th Street
(Station 49+66 . 39 with respect to the baseline of survey
along S.R. 907/Alton Road)
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1
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i
EXHIBIT `B'
CITY OF MIAMI BEACH RESOLUTION
Attached hereto and incorporated herein by reference once
ratified by the CITY Board of Commissioners .
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