FDOT Landscape and Bonded Aggregate Surface Zozo --1 -09
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FLORIDA DEPARTMENT OF TRANSPORTATION
LANDSCAPE AND BONDED AGGREGATE SURFACES
MAINTENANCE MEMORANDUM OF AGREEMENT
WITH THE
CITY OF MIAMI BEACH
This AGREEMENT, entered into on ( , 201A) 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) 112
(West 41st Street) from Indian Creek Drive to Collins Avenue,
which is located within the limits of the CITY; and
B. The CITY, pursuant to Permit Number 2020-L-691-00005, has
drafted design plans for beautification improvements along
SR-112 (West 41St Street) from Indian Creek Drive to Collins
Avenue, 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 and bonded aggregate surfaces
along SR-112 within the PROJECT LIMITS, in accordance with
the design plans for Permit Number # 2020-L-691-00005 (the
"Project") ; and
D. 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 landscape and bonded aggregate surfaces
installed pursuant to the Project; andr}
E. The CITY, by Resolution No. 2D21).. B140 ' 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:
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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 the landscape and bonded aggregate surfaces
(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 latE!st 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.
b. Removing and disposing of all trimmings, roots,
branches, litter, and any other debris resulting from
the activities described by 3 .2 through 3. 3 .
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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.
3.2 Landscape and all associated improvements:
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
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.
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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 roadside and
median strips 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. Removing and disposing of all trimmings, roots,
branches, litter, and any other debris resulting from
the activities described by 3.A through 3.K.
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.
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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.
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.
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.
4. MAINTENANCE DEFICIENCIES
If at any time it shall come to the attention of the
DEPARTMENT that the CITY's responsibilities as established
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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
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.
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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
exempt from Section 24 (a) of Article I of the State
Constitution and Section 119. 0 (1) , of the Florida
Statutes.
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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 to a standard concrete
sidewalk, 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
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
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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.
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.
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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
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
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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 caused these
presents to be executed the day and year first above written.
CITY OF MIAMI :EACH: STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION:
B : j� BY:
•TTY Ma ager District Director of
Transportation Operations
ATTEST: t' ' (SEAL) ATTEST:
CITY Clerk Executive Secretary
V> �\8 �� LEGAL REVIEW:
1111CORP'f URAIED
BY: BY:
CITY Attorney District Chief Counsel
APPROVED AS TO
FORM&LANGUAGE
& FOR EXECU1ION
0,Q0 el ( ( 6
Cdy Artornej et Dade
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EXHIBIT 'A'
PROJECT LIMITS
Below are the limits of the IMPROVEMENTS to be maintained by the
CITY under this AGREEMENT.
State Road Number: 112
Local Street Names: West 41s' Street
Agreement Limits: Indian Creek Drive to Collins Avenue
County: Miami-Dade
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EXHIBIT 'B'
CITY OF MIAMI BEACH RESOLUTION
To be herein incorporated once ratified by the CITY Board of
Commissioners.
•
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