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2001-R-09RESOLUTION NO. 2001-R-09 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EDGEWATER, FLORIDA, AUTHORIZING THE MAYOR TO EXECUTE A LANDSCAPE CONSTRUCTION AND MAINTENANCE MEMORANDUM OF AGREEMENT BETWEEN THE CITY OF EDGEWATER AND FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT); REPEALING RESOLUTIONS IN CONFLICT HEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Edgewater, Florida, has made the following determinations: 1. The City of Edgewater has evidenced the desire to continue ongoing maintenance services relating to State Road right-of-ways with the Florida Department ofTransportation (FDOT). 2. The City has budgeted for a mutually agree with FDOT for the planned landscaping of three (3) medians located on U.S. Highway 41 NOW, THEREFORE, be it resolved by the City Council ofthe City of Edgewater, Florida: Section 1. The City Council hereby authorizes the Mayor to execute the Landscape Construction and Maintenance Memorandum of Agreement between the City of Edgewater and the Florida Department of Transportation. Section 2. A copy of said Memorandum of Agreement is attached hereto and incorporated herein as Exhibit "A". Section 3. All resolutions or parts of resolutions in conflict herewith be and same are hereby repealed. Section 4. This resolution shall take effect upon adoption. 2001-R-09 1 H K AfterMotionby ,w-- andSecondby the vote on this resolution was as follows: AYE NAY Mayor Donald A. Schmidt Y Councilman James P. Brown I�'( Councilman Dennis A. Vincenzi Councilwoman Harriet E. Rhodes Councilwoman Judy Lichter \� } PASSED AND DULY ADOPTED this _�_ day of June, 2001. ATTEST: For the use and reliance only by the City of Edgewater, Florida. Approved as to form and legality by: Scott A. Cookson, Esquire City Attorney Foley & Lardner 2001-R-09 2 CITY COUNCIL OF THE CITY OF EDGEWATER, FLORIDA By c� Donald A. Schmidt Mayor 0��,;i , Robin L. Matusick Legal Assistant Approved by the City Council of the City of Edgewater at a meeting held on this Zi day of 2001 under Agenda Item No. C- LANDSCAPE CONSTRUCTION AND MAINTENANCE MEMORANDUM OF AGREEMENT THIS AGREEMENT, made and entered into this day of a 1 `4d, by and between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, a comonent agency of the State of Florida, hereinafter called the DEPARTMENT and the CITY OF EDGEWATER, a political subdivision of the State of Florida, existing under the Laws of Florida, hereinafter called the AGENCY. WITNESSETH WHEREAS, the DEPARTMENT has jurisdiction over and maintains State Road 15/600 as part of the State Highway System; and WHEREAS, the AGENCY seeks to install and maintain certain landscaping within the unpaved areas within the right of way of State Road 5; and WHEREAS, the parties hereto mutually recognize the need for entering into an Agreement designating and setting forth the responsibilities of each party; WHEREAS, the AGENCY, by Resolution No.doot-R-mated ?! 2001, and attached hereto authorized its officers to execute this agreement on its behal . NOW THEREFORE, for and in consideration of the mutual benefits to flow each to the other, the parties covenant and agree as follows: The AGENCY hereby agrees to install or cause to be installed landscaping on the highway facility as specified in the landscape plans. Such installation shall be in accordance with Florida Administrative Code Rule 14-40.003, as it may be amended from time to time, and the Florida Highway Landscape Guide, which is incorporated into Rule 14-40.003 by reference. The AGENCY shall not change or deviate from said plans(s) without written approval of the DEPARTMENT. 2. The AGENCY agrees to maintain the landscaping within the median and areas outside the travel way within the right of way line in accordance with the Landscape Maintenance Plan(s) included as part of the landscape plans referred to in paragraph #1 above. Said maintenance will be in accordance with Florida Administrative Code Rule 14-40.003 and the Florida Highway Landscape Guide, as they may be amended from time to time. The AGENCY'S responsibility for maintenance shall be consistent with the requirements of Florida Administrative Code Rule 14-40-003. The above named functions to be performed by the AGENCY shall not change or deviate from said plan(s) without written approval of the DEPARTMENT. 3. All landscape installation and maintenance activities undertaken by AGENCY shall be in accordance with the Maintenance of Traffic Plan(s) included as part of the landscape plans referred to in paragraph #1 above and Florida Administrative Code Rule 14-40.003. 4. If at any time after the AGENCY has assumed the landscaping installation or maintenance responsibility above -mentioned, it shall come to the attention of the Department that the limits or a part thereof is not properly installed or maintained pursuant to the terms of this AGREEMENT, the District Secretary or his designee may issue a written notice that a deficiency or deficiencies exist(s), by sending a certified letter to the AGENCY place said AGENCY on notice thereof. Thereafter the AGENCY shall have a period of thirty (30) calendar days within which to correct the cited deficiencies. If said deficiencies are not corrected within this time period, the DEPARTMENT may at its option, proceed as follows: (a) If installation is not completed in accordance with the plans in paragraph 1, the DEPARTMENT may complete the installation, with DEPARTMENT or Contractor's personnel, and invoice the AGENCY for any reasonable expenses incurred. (b) If installation has been properly completed or if the DEPARTMENT elects not to complete the landscaping under (a) above, and maintenance by AGENCY is not in compliance with paragraphs 2 or 3, the DEPARTMENT may take action to maintain the landscaping or a part thereof, with DEPARTMENT or Contractor's personnel and invoice the AGENCY for expenses incurred, or (c) The DEPARTMENT may terminate the AGREEMENT, in which case the AGENCY shall at its own expense and within sixty (60) days after written notice by the DEPARTMENT, remove all of the landscaping that the DEPARTMENT directs be removed and return the right-of-way to its original condition. The AGENCY will own such materials as it removes and the DEPARTMENT shall own any materials remaining. The DEPARTMENT may, in its discretion, remove, relocate or adjust the landscaping materials, with the AGENCY being responsible for the cost of any removal. Upon DEPARTMENT action under one of the above options and upon direction of the DEPARTMENT, AGENCY shall cease installation and maintenance activities under this AGREEMENT. It is understood between the parties hereto that the landscaping covered by this AGREEMENT may be removed, relocated or adjusted by the DEPARTMENT at any time in the future as determined to be necessary by the DEPARTMENT in order that the state road be widened, altered or otherwise changed to meet with future criteria or planning of the DEPARTMENT. The AGENCY shall be given sixty (60) calendar days notice to remove said landscaping/hardscape after which time the DEPARTMENT may remove the same. 6. AGENCY may utilize its employees or third parties to accomplish its obligations under paragraphs 1, 2 or 3; however, AGENCY remains responsible for proper performance under this AGREEMENT and shall take all steps necessary to ensure that its employees or third parties perform as required under this AGREEMENT. 7. The AGENCY shall indemnify, defend, and hold harmless the Department and all of its officers, agents, and employees from any claim, loss, damage, cost, charge, or expense arising out of any act, error, omission or negligent act by the AGENCY, its agents, or, during the performance of the Agreement, except that neither the AGENCY its agents, nor its employees will be liable under this paragraph for any claim, loss, damage, cost, charge, or expense arising out of any act, error omission, or negligent agent by the Department or any of its officers, agents, or employees during the performance of the Agreement. When the Department receives a notice of claim for damages that may have been caused by the AGENCY in the performance of services required under this Agreement, the Department will immediately forward the claim to and the Department will evaluate the claim and report their finds to each other within seven working days and will jointly discuss options in defending the claim. After reviewing the claim, the Department will determine whether to require the participation of the claim or to require that participation of the AGENCY in the defense of the claim or to require that the AGENCY defend the Department in such claim as described in this section. The Department's failure to notify the AGENCY of a claim shall not release the AGENCY from any of the requirements of this section. The Department and the AGENCY will pay their own costs for the evaluation, settlement negotiations, and trial, if any. However, if only one party participates in the defense of the claim at trail, that party is responsible for all costs, but if the verdict determines that there is joint responsibility, the costs and liability for damages will be shared in the same percentage as thatjudicially established. 8. 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. 9. This AGREEMENT may not be assigned or transferred by the AGENCY in whole or part without the consent of the Department. 10. This AGREEMENT 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 AGREEMENT and Florida law, the laws of Florida shall prevail. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day and year first above written. City of Edgewater (AGENCY) Mayor or Chairman Attest: (SEAL) erk/Director Legal Approval STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION Maintenance Engineer Attest: (SEAL) Administrative Assistant Legal Approval