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FDOT Storm Water Pump Station Memo of Agreement FLORIDA DEPARTMENT OF TRANSPORTATION STORM WATER PUMP STATIONS AND POLLUTION CONTROL STRUCTURES MAINTENANCE MEMORANDUM OF AGREEMENT WITH THE CITY OF MIAMI BEACH This AGREEMENT, made and entered into this L day of 201,5 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 CITY has jurisdiction over and maintains the area west of the State Road (S.R. ) AlA/Indian Creek Drive western right of way line at 43rd Street; and B. The DEPARTMENT will install a storm water pump station and pollution control structure at the west side of the intersection of S .R. AlA/Indian Creek Drive and 43rd Street (M. P. 0 . 105 along S .R. A1A) , in accordance with DEPARTMENT Contract # T-6322 ( "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. Z6%-4- 2.$08rj dated tyr1C Y1Jpe_62 9Z. 2012.-, attached as Exhibit `B' , which is incorporated to this agreement by reference, 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 the Florida Department of Transportation and the City of Miami Beach Page 1 of I 1 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 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 shall be deemed 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 below-named functions are to be performed by the CITY and may be subject to periodic inspections by the DEPARTMENT at its sole discretion. As of the date set forth in Section 2 of this AGREEMENT, the CITY agrees to operate, and routinely and periodically maintain the Structures located within the PROJECT LIMITS. 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 (electrical , mechanical, etc . ) , 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 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 . Maintenance Memorandum of Agreement between the Florida Department of Transportation and the City of Miami Beach Paae 2 of 11 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 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 (30) calendar days, following Maintenance Memorandum of Agreement between the Florida Department of Transportation and the City of Miami Beach Page 3 of 11 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 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. Maintenance Memorandum of Agreement between the Florida Department of Transportation and the City of Miami Beach Page 4 of l I 6 . REMOVAL, RELOCATION, OR ADJUSTMENT OF THE STORM WATER PUMP STATION OR POLLUTION CONTROL STRUCTURE The Parties agree that the Structures covered by this AGREEMENT may be removed, relocated or adjusted at any time in the future, by the DEPARTMENT, at its 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 Parties or their legal representative (s) 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 Maintenance Memorandum of Agreement between the Florida Department of Transportation and the City of Miami Beach Page 5 of 1 l 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 . SEVERABILITY If any provision of this Agreement is adjudged by a court of competent jurisdiction to be void and unenforceable, that judgment shall not affect : (a) any other provision of this AGREEMENT; (b) the application of such provision in any other circumstances; and (c) the validity or enforceability of this AGREEMENT as a whole, subject to the law of severability under Florida law. 11. ADDITIONAL TERMS a. The CITY: : 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 CITY 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. Maintenance Memorandum of Agreement between the Florida Department of Transportation and the City of Miami Beach Page 6 of 1 I 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. 12 . 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, to participate and associate with the DEPARTMENT in the Maintenance Memorandum of Agreement between the Florida Department of Transportation and the City of Miami Beach Page 7 of 11 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. Maintenance Memorandum of Agreement between the Florida Department of Transportation and the City of Miami Beach Page 8 of 1 I 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: B : // I -IU,.� Director, Trans ortation Mayor � � Operations INCORp O�ATEG Attest : EA :1t 'est : _ _(SEAL) "' 'Y ����"'� t,a`�� y 'Secretary Cit Clerk Execu LEGAL REVIEW: y: By: Ci -�Atto e District C of ounsel Maintenance Memorandum of Agreement between the Florida Department of Transportation and the City of Miami Beach Page 9 of 11 EXHIBIT `A' PROJECT LIMITS Below are the general limits of the storm water pump station and pollution control structure to be maintained under this AGREEMENT. Location: S .R.AlA/Indian Creek Drive and 43rd Street County: Miami-Dade 1 pump station and pollution control structure at the intersection of S .R. AlA/Indian Creek Drive (Station 78+35 with respect to the baseline of survey along SR-AlA/Indian Creek Drive) Maintenance Memorandum of Agreement between the Florida Department of Transportation and the City of Miami Beach Page 10 of 11 EXHIBIT `B'- CITY OF MIAMI BEACH RESOLUTION Attached hereto and incorporated herein by reference once ratified by the CITY Board of Commissioners . Maintenance Memorandum of Agreement between the Florida Department of Transportation and the City of Miami Beach Page I 1 of l 1 EXHIBIT `A' PROJECT LIMITS Below are the general limits of the storm water pump station and pollution control structure to be maintained under this AGREEMENT. Location: S .R.AlA/Indian Creek Drive and 43rd Street County: Miami-Dade 1 pump station and pollution control structure at the intersection of S.R. AlA/Indian Creek Drive (Station 78+35 with respect to the baseline of survey along SR-AlA Indian Creek p Y g / Drive) Maintenance Memorandum of Agreement between the Florida Department of Transportation and the City of Miami Beach Page 10 of 11 EXHIBIT `B" CITY OF MIAMI BEACH RESOLUTION Attached hereto and incorporated herein by reference once ratified by the CITY Board of Commissioners . Maintenance Memorandum of Agreement between the Florida Department of Transportation and the City of Miami Beach Page 11 of 11