Memorandum of Agreement Fla Dept of Transportation ao(a- 9.80 gS,
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FM No.427505-2-52-01
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MEMORANDUM OF AGREEMENT
REGARDING
OFF-SYSTEM CONSTRUCTION AND MAINTENANCE OF IMPROVEMENTS
Between
STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION
("DEPARTMENT")
and
CITY OF MIAMI BEACH, a municipal corporation of the State of Florida
("CITY")
This Agreement is made and entered into as of 24I-2; by and
through THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, an agency of the
State of Florida (the "Department"), and CITY OF MIAMI BEACH, a municipal corporation of the
State of Florida(the "City"), collectively referred to as the "Parties."
RECITALS
WHEREAS, the State of Florida Legislature has approved the Department's Work Program
and mandated the Department to complete the various projects included in the Department's Work
Program; and
WHEREAS, included in the Department Work Program is Project Number FM 427505-2-52-
01 on 43rd Street, from Collins Avenue to Indian Creek Drive, located in City of Miami Beach,
Florida, (hereinafter "the Project"), which includes the construction of improvements on roads not on
the State Highway System; and
WHEREAS, the City has jurisdiction over and owns the roads related to this Agreement,
which are not on the State Highway System; and
WHEREAS, the Parties agree that it is in the best interest of each party for the Department to
undertake and to complete all aspects of the Project, including the design, construction, inspection,
utilities, permits, easements, and other tasks associated with those improvements that are on roads not
on the State Highway System.
TERMS
NOW THEREFORE, in consideration of the premises, the mutual covenants and other
valuable considerations contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows;
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1. The recitals in this Agreement are true and correct, and are incorporated herein by reference
and made a part of this Agreement.
2. The Parties agree that the Department intends to undertake and complete project number
FM 427505-2-52-Olon 43rd Street (the "Project"), depicted in the attached Project Design
Plans (referred to as "Exhibit A" and attached hereto). The Project shall include
improvements on roads not on the State Highway System (the "Local Roadway
Improvements"), which are also depicted in Exhibit A, and all activities associated with, or
arising out of construction of the Local Roadway Improvements. The City shall cooperate
with and support the Department's work efforts in these regards. The Department will
design and construct the Project in accordance with all applicable federal and state laws and
regulations and in accordance with Department design and construction standards as set
forth in the Department's guidelines, standards, and procedures. The Department shall
have final decision authority with respect to all aspects of design and construction of the
Local Roadway Improvements.
3. The Parties acknowledge and agree that the City has reviewed the Project Design Plans up
to the 60% design phase, which are attached hereto as "Exhibit A." The Parties further
agree that the Department has addressed all of the City's comments regarding the 60%
Design Plans, in accordance with the review process set forth in paragraph 4 of this
Agreement. The Parties acknowledge and agree that the City will review all additional
submissions of the Project Design Plans using the Department's review process as set forth
in paragraph 4 of this Agreement.
4. The Department shall use the Electronic Review Comments System (the "ERC") to submit
versions of the Project Design Plans for the City to review. When the Department places
the Project Design Plans in the ERC, the Department will designate a Comment Due Date
and a Response Due Date. The City must submit its comments with regards to the Project
Design Plans on or before the Comment Due Date,and the Department must respond to the
City's comments, if any, on or before the Response Due Date. If the City does not submit
its comments by the Comment Due Date, the City will be deemed to have approved the
submitted Project Design Plans. This process for review of the Project Design Plans shall
be referred to as the "Review Process."
5. The Review Process for the Project Design Plans will be deemed concluded when the
following has occurred: (1) the Department has submitted the Final Project Design Plans to
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the ERC, (2) the Comment Due Date and Response Due Date for the Final Design Plans
have passed, and (3) the Department has addressed the City's comments on the Final
Design Plans that were submitted through the ERC, if any (in accordance with the review
process). Once the review process is concluded, the City authorizes its Public Works
Department to issue a permit (hereinafter "the Permit") to the Department's Construction
Contractor, authorizing the Department to construct the Project in accordance with the Final
Project Design Plans (hereinafter"the Final Project Plans") submitted through the ERC.
By authorizing the issuance of the Permit, the City agrees that the Department may
proceed to construct the Project in accordance with the Schedule of Work included in its
Final Project Plans. The City further agrees that the Permit will not impose any conditions
other than those included in this Agreement, and the terms of this Agreement supersede any
conflicting terms in the Permit. The City acknowledges and agrees that,during construction
of the Local Roadway Improvements, the Department will utilize the service of law
enforcement officers only when required by the Department's Standard Specifications for
Road and Bridge Construction, and no additional requirements will be imposed.
Additionally, the City waives any permit fees that may apply to issuance of the Permit.
Major modifications of the Final Project Plans that concern the Local Roadway
Improvements must be submitted to the City for review using the Review Process. A
Major Modification is any modification that materially alters the kind or nature of the work
depicted in the permitted plans (Exhibit A), or that alters the integrity or maintainability of
the Local Roadway Improvements or its components. The City will review the
modifications in a manner that will not delay the Department's construction contract.
Subsequent to the City's review of the Major Modification(s), the City will update the
Permit to reflect the submitted changes in accordance with the terms of this Agreement.
6. The City agrees to fully cooperate with the Department in the construction, reconstruction
and relocation of utilities that are located within the City's right-of-way.
7.: It is the understanding of the Parties that the Department is attempting to obtain a
permanent easement from the City for certain drainage improvements on the Local
Roadway, which will be constructed pursuant to the Project (hereafter "the Easement"). In
the event that the Easement is executed, if any of the terms of the Easement conflict with
the terms of this Agreement, the terms of the Easement shall govern as to the maintenance
responsibilities of each Party for those improvements addressed by the terms of the
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Easement. Otherwise, the maintenance responsibilities of each Party shall be governed by
the terms of this agreement.
8. The City acknowledges that the Department will be utilizing State funds to construct the
Project, and as a result thereof, the City agrees to perpetually maintain all Local Roadway
Improvements, at its sole expense. To maintain means to perform normal maintenance
operations for the preservation of the Local Roadway Improvements, which shall include
but are not limited to, roadway surfaces, shoulders, roadside structures, drainage structures
and such traffic control devices as are necessary for the safe and efficient use of the Local
Roadway Improvements.
Additionally, the Parties understand and agree that the Department shall transfer all
permits for Local Roadway Improvements to the City as the operational and maintenance
entity, and the City agrees to accept said transfer and to be fully responsible to comply with
.all operational and maintenance conditions of the permits,at its sole cost and expense.
Notwithstanding the requirements hereof, maintenance during construction shall be the
responsibility of the Department and its Contractor, as set forth in paragraph 12 of this
Agreement.
9. The Parties acknowledge and agree that the City's right-of-way and the improvements and
structures located within City's right-of-way, are and will remain under the ownership of
the City, and the Department will not have any ownership interest in the right-of-way,
improvements, or structures located thereon or installed therein pursuant to the Project,
except for those interests transferred pursuant to the Easement, if any.
10. The Department shall require its construction Contractor to maintain, at all times during
the construction, regular Contractor's Public Liability Insurance providing for a limit of not
less than $1,000,000 for all damages arising out of bodily injuries to, or death of, one
person and, subject to that limit for each person, a total limit of$5,000,000 for all damages
arising out of bodily injuries to, or death of, two or more persons in any one occurrence;
and regular Contractor's Property Damage Liability Insurance providing for a limit of not
less than $50,000 for all damages arising out of injury to, or destruction of,property in any
one occurrence and, subject to that limit per occurrence, a total or aggregate limit of
$100,000 for all damages arising out of injury to, or destruction of, property during the
policy period; or such other minimum insurance coverage that may be required by the
Department for construction of the Project, in accordance with the Department's standards
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and specifications. The Department shall further cause its Contractor to name the
Department as additional insured on the afore-stated policies, and to name the City as
additional insured on the afore-stated policies with regards to activities performed within
the City's right-of-way. The Department shall also require its Contractor to provide
evidence of Workers' Compensation Insurance in accordance with the laws of the State of
Florida and in amounts sufficient to secure the benefit of the Florida Workers'
Compensation law for all employees.
11. The Department shall notify the City at least 48 hours before beginning construction within
the City's right-of-way. Such notification may be provided verbally or via email, and the
notice requirements set forth in paragraph 23 shall not apply to this paragraph.
The Department agrees that the City may, at reasonable times during the construction of
the Local Roadway Improvements and with regards to the Project limits located within City
right-of-way, inspect the Contractor's construction site and perform such tests as are
reasonably necessary to determine whether the goods or services required to be provided by
the Contractor, pursuant to the Contractor's Construction Agreement with the Department,
conform to the terms of said Construction Agreement. Upon request by the City, the
Department shall coordinate with its Contractor to provide access to the City for
performance of said inspections.
If the City determines that the work is not being performed in accordance with the
plans, specifications, and schedules which the City permitted as provided in paragraphs 3
and 4 of this Agreement, the City shall make its objections known to the Department in
writing to the Department's Construction Project Manager. It will be the responsibility of
the Department to make all needed corrections to assure conformity with the plans,
schedules and specifications which had been previously reviewed by the City through the
Review Process.
12.: Maintenance of the Local Roadway Improvements during construction shall be the
responsibility of the Department's Contractor. Upon completion of construction, the
Department will invite the City on the Final Inspection of the Local Roadway
Improvements and will incorporate valid City concerns that are within the scope of the
contract into the final Project punch list to be corrected by the contractor. The Final
Inspection shall be performed and the Notice of Final Acceptance shall be issued in
accordance with the Department's Standard Specifications for Road and Bridge
v
FM No. 4275D5-2-52-01
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Construction and the Construction Project Administration Manual (CPAM). The City's
presence at the Final Inspection, however, is not mandatory, and the Department shall
conduct the Final Inspection, finalize the Project punch list, and issue a Notice of Final
Acceptance to its Contractor,whether or not the City attends the Final Inspection.
Upon issuance of the Notice of Final Acceptance to the Contractor, the Department
shall provide a copy of said notice to the City. As of the date of the Notice of Final
Acceptance, the City shall be immediately responsible for the maintenance of the Local
Roadway Improvements. The Department, however, shall have the right to assure
completion of any punch list by the Contractor and to assure the performance by the
Contractor of remedial work covered by any existing warranties for the Local Roadway
Improvements.
11 Upon completion of all work related to construction of the Project, the Department will be
required to submit to the City final as-built plans for the Local Roadway Improvements and
an engineering certification that construction was completed in accordance with the plans.
Additionally, the Department shall vacate those portions of the City's right-of-way used to
construct the Local Roadway Improvements and shall remove the Department's property,
machinery, and equipment from said portions of the City's right-of-way. Furthermore, the
Department shall restore those portions of the City right-of-way disturbed by Project
construction activities to the same condition that existed immediately prior to
commencement of the construction of the Project. This Agreement shall become effective
as of the date both Parties hereto have executed the agreement and shall continue in full
force and effect until the Project is completed, as evidenced by the Department's issuance
of Notice of Final Acceptance.
Prior to commencement of construction, the Department may, in its sole discretion,
terminate this agreement if it determines that it is in the best interest of the public to do so.
If the Department elects to terminate this Agreement, the Department shall provide formal
notice of termination to the City,as set forth in paragraph 23 of this Agreement.
14, In the event that any election, referendum, approval or permit, notice or other proceeding,
or authorization is required to carry out the Project,the City agrees to expeditiously initiate
and consummate, as provided by law, all actions necessary with respect to any such
matters, with time being of the essence. Additionally, the City shall conduct operations so
as to cooperate fully with any such work being performed by the Department and the
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Department's contractors. The City shall not commit or permit any act which may interfere
with the performance of any such work by the Department or any Department contractor
unless the Department agrees in writing that the City may commit or permit said act.
15. The Parties acknowledge and agree that the Project shall be constructed using State funds
and that all costs incurred must be in conformity with applicable Federal and State laws,
regulations, and policies and procedures.
16. The Department's performance and obligations under this Agreement are contingent upon
an annual appropriation by the Legislature. If the Department's funding for this Project is
in multiple fiscal years, funds approval from the Department's Comptroller must be
received each fiscal year prior to costs being incurred. Project costs utilizing fiscal year
funds are not eligible for reimbursement if incurred prior to funds approval being received.
17. In the event that this Agreement involves expenditures in excess of $25,000, and the
agreement has a term for a period of more than one year, the provisions of Section
§339.135(6)(a), Florida Statutes, are hereby incorporated into this agreement and are as
follows:
The department, during any fiscal year, shall not expend money, incur any
liability, or enter into any contract which, by its terms, involves the
expenditure of money in excess of the amounts budgeted as available for
expenditure during any such fiscal year. Any contract, verbal or written,
made in violation of this subsection is null and void, and no money may
be paid on such contract. The department shall require a statement from
the comptroller of the department that funds are available prior to entering
into any such contract or other binding commitment of funds. Nothing
herein contained shall prevent the making of contracts for periods
exceeding 1 year, but any contract so made shall be executory only for the
value of the services to be rendered or agreed to be paid for in succeeding
fiscal years; and this paragraph shall be incorporated verbatim in all
contracts of the department which are for an amount in excess of$25,000
and which have a term for a period of more than 1 year.
18.:: The Department is a state agency, self-insured and subject to the provisions of Section
768.28, Florida Statutes.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.
19. 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.
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20; This Agreement shall be governed by the laws of the State of Florida. Any provision
hereof found to be unlawful or unenforceable shall be severable and shall not affect the
validity of the remaining portions hereof. Venue for any and all actions arising out of or in
any way related to the interpretation, validity, performance or breach of this Agreement
shall lie exclusively in a state court of appropriate jurisdiction in Leon County, Florida.
21. No term or provision of this Agreement shall be interpreted for or against any party because
that party's legal counsel drafted the provision.
22. In accordance with Executive Order No. 11-02 all Department Vendor/Contractors shall
utilize the U.S. Department of Homeland Security's E-Verify system, in accordance with
the terms governing use of the system, to confirm the employment eligibility of;
1. all persons employed by the Vendor/Contractor during the term of the Contract to
perform employment duties within Florida; and
2. all persons, including subcontractors, assigned by the Vendor/Contractor to perform
work pursuant to the contract with the Department.
23. All notices, requests, demands, or other communications required or permitted to be given
under this Contract shall be in writing and shall be delivered in one of the following
manners: personally, via express mail service or mailed by first-class, registered or
certified mail. Any notice, request, demand, or other communication made pursuant to this
paragraph shall be deemed to have been received by the addressee at the earlier of such
time as is actually received or seven (7) calendar days after it is mailed. Unless otherwise
notified in writing, notices shall be sent to the following:
To the City:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
To the Department:
Director of Transportation Operations
State of Florida,Department of Transportation
1000 N.W. 111d'Avenue,
Miami, Florida 33172
FM No.427505-2-52-01
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A party may change the address to which such communications are to be directed by
giving written notice to the other party in the manner provided in this paragraph.
IN WITNESS WHEREOF,the parties hereto have executed this agreement on the dates exhibited, by
the signatures below.
CITY OF MIAMI BEACH STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
By: y/1�-Zjtv�
Name: In(-fI efu ro Name:
Title: Title: Director of Transportation Operations
Date: ...3. 513 Date:
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Attest:
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Title: C%-,? C` f n �y`� ' •`.r' 1 :.
A ed as to form and legality: Department Legal Review:
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