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3THE CITY OF PLEASANT LIVING To: FROM: DATE: SUBJECT: BACKGROUND: SUPPORT: CITY OF SOUTH MIAMI OFFICE OF THE CITY MANAGER INTER-OFFICE MEMORANDUM The Honorable Mayor & Members of the City Commission Steven Alexander, City Manager Agenda Item No.: 3 October 6, 2015 A Resolution authorizing the City Manager to execute the Maintenance Memorandum of Agreement (MMOA) with the Florida Department of Transportation (FDOT) for turf and landscape and irrigation. The FOOT has jurisdiction over SR 5/US1 from SW 57 Avenue to SW 80 Street, which is located within the limits of City of South Miami. Per City's request, FOOT has drafted design plans for beautification, landscaping and irrigation improvements on SR 5/US1 and allocated over $550,000 for construction of this project. The project is described generally as turf and landscape and irrigation which will be utilized for the maintenance of South Dixie Highway - SR5/US1 from SW 80 th Street to SW 57 th Avenue. The City of South Miami will take over the maintenance two years after the completion of the project. Florida Department of Transportation Turf, Landscape and Irrigation Maintenance Memorandum of Agreement 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 RESOLUTION NO. _____ _ A Resolution authorizing the City Manager to execute a Maintenance Memorandum of Agreement (MMOA) with the Florida Department of Transportation (FDOT) for turf and landscape and irrigation. WHEREAS, the Mayor and City Commission desire to accept the Maintenance Memorandum of Agreement (MMOA) with the Florida Department of Transportation (FDOT) for turf and maintenance, which will be utilized for South Dixie Highway (US-I) SR 5 from SW 80th Street to SW 57th Avenue. The City will be responsible to maintain the landscaping at the standards set by FDOT in perpetuity and failing to do so, FDOT may hire someone to maintain the landscaping and charge the City for the cost thereof. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA THAT: Section 1. The City Commission authorizes the City Manager to execute the attached Maintenance Memorandum of Agreement (MMOA) with the Florida of Transportation (FDOT) for turf and landscape maintenance. Section 2. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this _ day of __ -" 2015. ATTEST: CITY CLERK READ AND APPROVED AS TO FORM, LANGUAGE, LEGALITY AND EXECUTION THEREOF CITY ATTORNEY APPROVED: MAYOR COMMISSION VOTE: Mayor Stoddard: Vice Mayor Harris: Commissioner Edmond: Commissioner Liebman: Commissioner Welsh: FLORIDA DEPARTMENT OF TRANSPORTATION TURF, LANDSCAPE AND IRRIGATION MAINTENANCE MEMORANDUM OF AGREEMENT WITH THE CITY OF SOUTH MiAMI This AGREEMENT, entered into on ; 20 __ , by and between the STATE OF !!'LORIDA DEPARTMENT OF TRlINSPORTATION, an agency of the State of Florida, hereinafter called the DEPARTMENT, and the CITY OF SOUTH MIAMI, 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 (S.R.) 5/ US1/ South Dixie Highway from SW 57~ Avenue (M.P. 1.628) to SW 80 th Street (M.P. 2.751), which is located within the limits of the CITY; and B. The DEPARTMENT, pursuant to Contract # E-6J74, has drafted design plans for beautification improvements on S. R. 5/ USI/ South Dixie Highway from SW 57 th Avenue to SW 80th Street, 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 DEPARTMENT will install landscaping and irrigation systems in accordance with the design plans for Contract # E-6J74 (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 turf, landscaping and irrigation systems installed pursuant to the Project; and E. The CITY, by Resolution No. , dated attached hereto as Exhibit'S', which by reference shall become a part of this AGREEMENT, desires to enter into this AGREEMENT and authorizes its officers to do so. NOW, benefits THEREFORE, contained for and in herein and consideration, the PARTIES covenant consideration of the mutual other good and valuable 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 responsibili ties pertaining to the turf, landscaping and irrigation systems within the PROJECT LIMITS to the CITY in perpetuity upon the DEPARTMENT's release of its contractor from further warranty work and responsibility, as set forth in Section 580 of the DEPARTMENT's Standard Specification for Road and Bridge Construction. 3. CITY'S ~NTENANCE RESPONSIBILITIES The CITY shall maintain the turf, landscape and irrigation in accordance with all applicable DEPARTMENT guidelines, standards, and procedures, which shall include but shall not be limited to the Maintenance Rating Program Handbook and Index 546 of the latest FDOT Design Standards, as may be amended from time to time. Additionally, the CITY shall maintain the turf, landscape and irrigation in accordance with the International Society of Arboriculture standards, guidelines, and procedures, as may be amended from time to time, and 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: a. Mowing, cutting and/or trimming and edging the grass and turf. b. Pruning all plant materials, which include trees, shrubs and ground covers, and parts thereof. c. Fertilizing, insecticide, pesticide, herbicide and watering will be required to maintain the current landscape and turf in a heal thy and vigorous growing condition. 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. g, Watering and fertilizing all maintain the plant materials in growing condition. plants as needed to a healthy and vigorous h. performing routine and regular inspection of the irrigation system (s) to assure that the systems are fully functional; identifying damage and/or malfunctions to the system(s); repairing and/or replacing broken or missing irrigation equipment; and adjusting spray heads to eliminate overspray of water onto paved areas. i. paying for all water use 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. Pruning,' trimming and/or edging of such parts thereof which may present a visual or other safety hazard for those using or intending to use the right of way including growth around street lights and traffic signals. 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. m. 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. n. 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. The DEPARTMENT may, at its sole discretion, perform periodic inspection of the turf, landscape and irrigation 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.M1l:NTENANCE DEFICIENCIES 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 period, follows: deficiencies are not the DEPARTMENT may, corrected within this time at its option, proceed as a. Maintain the turf, landscape and irrigation, 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 landscape and irrigation located within the PROJECT LDUTS, 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 DEPAR~T: Florida Department of Transportation 1000 Northwest 111 Avenue, Room 6205 Miami, Florida 33172-5800 Attn: District Maintenance Engineer To the CITY: City Hall, 1 st Floor 6130 Sunset Drive South Miami, Florida 33143 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. 6. REMOVAL, RELOCATION OR ADJUSTMENT OF THE LANDSCAPE AND IlUUGATION a. The PARTIES agree that the landscape and irrigation 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 DEPAR~T relocates or adjusts the Landscape and irrigation, the CITY's maintenance responsibilities will survive the relocation or adjustment, as long as the materials remain within the Project Limits. 7 . TERMINATION This AGREEMENT is subject to termination under anyone 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 2B7.05B(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. TEBMS a. The effective date of this AGREEMENT shall commence upon execution by the PARTIES. This AGREEMENT shall continue in perpetuity or until termination as set forth in Section 7. b. E-Verify c- The CITY / Contractors or Vendors: i. shall 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. 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. The CITY shall insert the above clause into any contract entered into by the CITY with vendors or contractors hired by the CITY for purposes of performing its duties under this AGREEMENT. This wri ting 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 AGRIi:Ii:MENT • 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 this AGRIi:EMENT shall be effective writing and executed with the same AGREEMENT • the provisions of only if made in formality as this 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 interpreted Party or provision. provision of this AGREEMENT shall for or against either Party because its legal representative drafted be the the 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 immuni ty protections, or as increasing the limits of liability as set forth in Section 768.28, Florida Statutes. Subj ect 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, exc""pt that neither the CITY nor any of its officers, ·agents, employees or representati ves will be liable under this provision for damages arising out of injury or damages 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 defense and trial of any claim and any related settlem""nt 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 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. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day and year first above written. CITY OF SOUTH MIAMI: By: __________________ __ CITY Manager ATTEST : _______________ (SEAL) CITY Clerk STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION: By: ______________________ _ District Director of Transportation Operations ATTEST: __________________ __ Executive Secretary LEGAL REVIEW: BY: ____________________ __ CITY Attorney BY: ____ ~----~---------­ District Chief Counsel EXHIBIT 'A' PRO,JECT LIMITS Below are the limits of the turf, landscape and irrigation to be maintained under this AGREEMENT. StAte Road Number: 5/US1/South Dixie Highway Agreement Limits: From SW 57~ Avenue (M.P. 1.628) to SW 80~ Street (M. P. 2.751) county: Miami-Dade EXHIBIT 'B' CITY OF SOUTH MIAMI RESOLU'l'ION To be herein incorporated once ratified by the CITY Board of Commissioners.