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Resolution 2024-32883 RESOLUTION: 2024-32883 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING, IN SUBSTANTIAL FORM, A MAINTENANCE MEMORANDUM OF AGREEMENT (MMOA) BETWEEN THE CITY AND THE FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT) IN CONNECTION WITH THE INSTALLATION OF LANDSCAPE, IRRIGATION, BONDED AGGREGATE SURFACES, SILVA CELLS, PIGMENTED SIDEWALKS, AND ASSOCIATED FEATURES (IMPROVEMENTS) ALONG FDOT'S SR-A1A (ABBOTT AVENUE) FROM 71ST STREET TO 72ND STREET; SAID MMOA ASSIGNING THE MAINTENANCE REPONSIBILITIES FOR THE IMPROVEMENTS TO THE CITY; AND FURTHER AUTHORIZING THE CITY MANAGER TO FINALIZE AND EXECUTE THE MMOA. • WHEREAS, Abbott Avenue Partners, LLC, a Delaware limited liability company; Pumps at 71, LLC, a Delaware limited liability company; and 7433 Collins Ave. Corp., a Florida corporation limited liability company (collectively, "the Developer") are the owners of certain parcels located from State Road (SR)Al A(Abbott Avenue)from 71st Street to 72nd Street, which are located within the limits of the City; and WHEREAS, the Developer intends to develop the property as a mixed-use residential and commercial development; and WHEREAS, the Developer has obtained certain approvals from the City in connection with the redevelopment of the property located at 7140 Abbott Avenue specifically; and WHEREAS, the City, under permit number 2022-L-691-00019, has requested that the Developer install landscape, irrigation, bonded aggregate surfaces, silva cells, and pigmented sidewalks along SR-Al A, in accordance with the design plans (the "Improvements"); and WHEREAS, in addition to adherence to the approved site plans, the City will require the Developer to execute a Declaration of Restrictive Covenants ("Declaration"), which will set forth the Developer's responsibility to adequately maintain the Improvements required by the development approvals and as required by FDOT, at no cost to the City; and WHEREAS, the Developer has applied to the City for permission to install the Improvements within the right-of-way, which extend into the Florida Department of Transportation's (FDOT) jurisdiction along a portion of State Road (SR) AlA (Abbott Avenue) from 71st Street to 72nd Street; and WHEREAS, in order for FDOT to approve the issuance of the required permits for the project, FDOT is requesting that the City be responsible for the maintenance of the Improvements via a Maintenance Memorandum of Agreement (MMOA); and WHEREAS, FDOT will approve the permits for the proposed Improvements, so long as the City agrees to execute an MMOA with FDOT, accepting full maintenance responsibility for the area, and the City will then rely upon the Declaration to assign the maintenance responsibility to the Developer; and WHEREAS, the City has executed several similar agreements in the past where landscape and nonstandard materials have been installed by private property owners on the public right-of-way; and WHEREAS, the Declaration is consistent with the requirements of Section 98-166, of the City Code,which requires property owners and tenants to maintain the sidewalks and landscaping fronting the adjacent private property; and WHEREAS, based upon the foregoing, the City Manager recommends approving, in substantial form, the MMOA, a draft copy of which is attached to the City Commission Memorandum accompanying this Resolution; and further authorizing the City Manager to finalize and execute the MMOA. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve, in substantial form, a Maintenance Memorandum of Agreement (MMOA) between the City and the `Florida Department of Transportation (FDOT) in connection with the installation of landscape, irrigation, bonded aggregate surfaces, silva cells, pigmented sidewalks, and associated features ("Improvements") along FDOT's SR- A1A (Abbott Avenue) from 71st Street to 72nd Street; said MMOA assigning the maintenance responsibilities for the Improvements to the City; and further authorizing the City Manager to finalize and execute the MMOA. PASSED and ADOPTED this 31st day of January, 2024. ATTEST: • FEB 0 6 2024 Steven Meiner, Mayor Rafael . Granado, City Clerk ?INCOKP ORATEt APPROVED AS TO FORM & LANGUAGE &FOR EXECUTION City AttornW, Date Resolutions -C7 M MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Aline T. Hudak, City Manager DATE: January 31, 2024 SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA,APPROVING, IN SUBSTANTIAL FORM, A MAINTENANCE MEMORANDUM OF AGREEMENT (MMOA) BETWEEN THE CITY AND THE FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT) IN CONNECTION WITH THE INSTALLATION OF LANDSCAPE, IRRIGATION, BONDED AGGREGATE SURFACES, SILVA CELLS, PIGMENTED SIDEWALKS, AND ASSOCIATED FEATURES (IMPROVEMENTS) ALONG FDOT'S SR-A1A (ABBOTT AVENUE) FROM 71ST STREET TO 72ND STREET; SAID MMOA ASSIGNING THE MAINTENANCE RESPONSIBILITIES FOR THE IMPROVEMENTS TO THE CITY; AND FURTHER AUTHORIZING THE CITY MANAGER TO FINALIZE AND EXECUTE THE MMOA. RECOMMENDATION The Administration recommends approving the execution of the MMOA. BACKGROUND/HISTORY • Abbott Avenue Partners, LLC, a Delaware limited liability company; Pumps at 71, LLC, a Delaware limited liability company; and 7433 Collins Ave. Corp., a Florida corporation limited liability company ("the Developers") are the owners of certain parcels located from State Road (SR)Al A(Abbott Avenue)from 71 st Street to 72nd Street, which are located within the limits of the City. The Developer intends to develop the property as a mixed-use residential and commercial development. The Developer has obtained certain approvals from the City in connection with the redevelopment of the property located at 7140 Abbott Avenue specifically(the "Property'). The City, under permit number 2022-L-691-00019, has requested that the Developers install landscape, irrigation, bonded aggregate surfaces, silva cells, and pigmented sidewalks along SR-A1 A, in accordance with the design plans (the"Improvements"). In addition to adherence to the approved site plans, the City will require the Developer to execute a Declaration of Restrictive Covenants ("Declaration") which will set forth the Developer's responsibility to adequately maintain the Improvements required by the development approvals and as required by FDOT, at no cost to the City. Page 682 of 2002 The Developer has applied to the City for permission to install the Improvements within the right-of-way, which extend into the Florida Department of Transportation's (FDOT) jurisdiction along a portion of State Road (SR)Al A(Abbott Avenue)from 71 st Street to 72nd Street. In order for FDOT to approve the issuance of the required permits for the project, FDOT is requesting that the City be responsible for the maintenance of the improvements via a Maintenance Memorandum of Agreement(MMOA), attached hereto. FDOT will approve the permits for the proposed improvements, as long as the City agrees to execute an MMOA with F DOT, accepting full maintenance responsibility for the area. The City then relies upon the Declaration to assign the maintenance responsibility to the Developers. The City has executed several similar agreements in the past where landscape and nonstandard materials have been installed by private property owners on the public right-of-way. The Declaration is consistent with the requirements of Section 98-166, of the City Code, which requires property owners and tenants to maintain the sidewalks and landscaping fronting their adjacent private property. SUPPORTING SURVEY DATA Results from the 2022 Resident Survey related to the City's perception and satisfaction show an overall approval of 67.4%, and rated the City as a good place to live. FINANCIAL INFORMATION No fiscal impact. CONCLUSION The Administration recommends approving the execution of the MMOA. 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 Strategic Connection Prosperity - Market and promote Miami Beach as a world class arts, culture, and quality entertainment destination. Legislative Tracking Public Works ATTACHMENTS: Description © Draft FDOT MMOA Page 683 of 2002 ❑ Resolution Page 684 of 2002 FLORIDA DEPARTMENT OF TRANSPORTATION LANDSCAPE 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) AlA (Abbott Avenue) from 71st Street to 72nd Steet, which is located within the limits of the CITY; and B. The CITY, pursuant to Permit Number 2022-L-691-00019, has required the Permittee to draft design plans for improvements alone SR-AlA (Abbott Avenue) from 71st Street to 72nd Steet, - 1 o hi are escribed in the attached Exhi• t e 0 LI ITS) , which by reference shal be• ,m a o is AG EMENT; and C. The CITY or Permittee will install landscape, irrigation, bonded aggregate surfaces, silva cells, and pigmented sidewalks along SR-A1A, inside DEPARTMENT Right-of-Way, within the PROJECT LIMITS, in accordance with the design plans for Permit Number 2022-L-691-00019 (the "Project") ; and D. It is the intent of the PARTIES for this AGREEMENT to supplement all existing Maintenance Memorandum of Agreement and existing Permits previously executed between the DEPARTMENT and the CITY; and E. The PARTIES to this AGREEMENT mutually recognize the need for entering into an agreement designating and setting forth the CITY' s responsibilities with regards to the maintenance of the landscape, irrigation, bonded aggregate surfaces, silva cells, pigmented sidewalks, and all associated features (the "IMPROVEMENTS") within the PROJECT LIMITS; and Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach(SR-A I A) Page 1 of 14 Page 685 of 2002 F. 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 : 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 the execution of this AGREEMENT shall constitute an assignment of all maintenance responsibilities pertaining to the IMPROVEMENTS within the PROJECT LIMITS to the CITY upon the DEPARTMENT' s acceptance of the CITY' s or Permittee' s work. 3. CITY' S MAINTENAN$ - - • L ALES So long as the I •RO A NT r. . plac the CITY shall be responsible he mai -nan - of th 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: Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach(SR-Al A) Page 2 of 14 Page 686 of 2002 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, repairs, and any other debris resulting from the activities described by 3. 2 through 3 . 4 . c. 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 Associated Features a. Mowing, c 1111 r nd dging the grass and turf a MITS. 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 Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach(SR-AI A) Page 3 of 14 Page 687 of 2002 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 a licable government rules, re. proce res, guidelines, and manua .ed AL ,m t time. k. Repairing . si.ewa da . d by ndscaping 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 . 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. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach(SR-A I A) Page 4 of 14 Page 688 of 2002 3. 3 Specialty Surfaces (Addapave) 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 with' - It u 1 not exceed a quarter ( /4) the interface (perimeted b: en t ' alty urfaces and the adjacent re s wal ) sha 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. 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. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach(SR-Al A) Page 5 of 14 Page 689 of 2002 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 (perimete . . w e -co walks and the adjacent - .n4 e ewa k (s) shall not exceed a a '. r (1 ' ) • ' nch. his requirement also appl - o -dja - t a s of isting 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 . 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. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach(SR-AI A) Page 6 of 14 Page 690 of 2002 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. 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. 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 . RAFT 4 . MAINTENANCE DEFI E 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 Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach(SR-A I A) Page 7 of 14 Page 691 of 2002 b. Terminate this AGREEMENT in accordance with Section 7, remove any or all 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 111 d av e ei d by the end of five (5) business om h send' g thereof unless proof of prior a .. r cei is ided. 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. The DEPARTMENT shall notify the CITY as soon as practicable of any such removal, relocation or adjustment of the IMPROVEMENTS. This notification is not subject to the notice provisions of Paragraph 5 of this AGREEMENT. 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. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach(SR-A I A) Page 8 of 14 Page 692 of 2002 7. TERMINATION 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 which are subject to provisions of Chapter 119, of the Florida Statutes . c. If mutually agreed to by both parties, upon thirty (30) days advance notice. An agreement to terminate shall be valid only if made in writing and executed with the same formalities as this AGREEMENT. 8 . TERMS a. The effectiv e f t AG NT sh 11 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. 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. c. This AGREEMENT shall not be transferred or assigned, in whole or in part, without the prior written consent of the DEPARTMENT. d. 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. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach(SR-A l A) Page 9 of 14 Page 693 of 2002 e. 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 Miami-Dade County, Florida. f . 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 Ac •iii N al be or otherwise interpreted NT' s sovereign immunity pr. Iffi o , r reasi the limits of liability a -t for in ction 768 .28, Florida Statutes. 1 . The CITY is a municipal corporation, 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 CITY' 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 : (a) 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, reasonable costs, damages, Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach(SR-AI A) Page 10 of 14 Page 694 of 2002 judgments, claims, demands, liabilities, reasonable 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 negligent exercise or of its responsibilities as set out in this AGREEMENT, including but not limited to, any negligent act, negligent action, negligence or omission by the CITY, its officers, agents, employees or representatives in the performance of 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 caused or resulting from the negligence of the DEPARTMENT; and (b) pay all reasonable costs and fees related to this obligation and its enforcement by 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 th NT' - claim for indemnification. - © cl ' fo indemnification shall be deemed - e i . t - • P TMENT ends the notice in accordance wi he for - no i e mai ng 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' 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 negligent shall excuse performance of this provision by the CITY. 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. Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach(SR-A I A) Page 11 of 14 Page 695 of 2002 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 or Mayor District Director of Transportation Operations ATTEST: (SEAL) ATTEST: City Clerk Executive Secretary LEGAL REVIEW: DRAFTBY: BY. City Attorney District Chief Counsel Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach(SR-A l A) Page 12 of 14 Page 696 of 2002 EXHIBIT 'A' PROJECT LIMITS Below are the limits of the pedestrian enhancements to be maintained under this AGREEMENT. State Road Number: AlA (Abbott Avenue) Agreement Limits: 71st Street to 72nd Steet County: Miami-Dade DRAFT Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach(SR-Al A) Page 13 of 14 Page 697 of 2002 EXHIBIT 'B' CITY OF MIAMI BEACH RESOLUTION To be herein incorporated once adopted by the CITY Board of Commissioners . DRAFT Maintenance Memorandum of Agreement between Florida Department of Transportation and City of Miami Beach(SR-Al A) Page 14 of 14 Page 698 of 2002