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HomeMy WebLinkAboutItem #04 Approval of Resolution Authorizing Memorandum of Agreement for FDOT Right of Way Maintenance AGENDA ITEM COVER SHEET Meeting Date: April 6, 2010 Item # 4 ~ Contact Name: Contact Number: Stephen C. Krug 6002 Reviewed By: Department Director: City Manager: Subject: Memorandum of Agreement - FOOT Right of Way Maintenance. Background Summary: The current Maintenance Memorandum of Agreement between the FOOT and the City will expire on April 30, 2010. FOOT is requesting to enter into a new contract for the City to provide maintenance activities for the portions of SR 50, SR 437 and SR 438 within the City limits. This new contract will be for a three year term with a renewal option for one additional three year term. The new FOOT contracts no longer contain a 3% annual escalation clause, however the new contract amount has been increased by 13% over the existing agreement value. The new fixed annual contract amount of $41,380.00 will provide the City with an additional $4,576.00 over the term of this agreement compared with the current expiring agreement. Public Works recommends approving the new Right of Way Maintenance Memorandum of Agreement with the FOOT. Issue: Request the City Commission to approve the new Right of Way Maintenance Memorandum of Agreement with the FOOT. Recommendations Recommend the City Commission approve the new Right of Way Maintenance Memorandum of Agreement, APU-76, with the FOOT, and authorize the Mayor and City Clerk to execute.the Agreement and Resolution. Attachments: Two (2) copies of the Memorandum of Agreement APU-76 and Resolution. Financial Impact: The $41,380.00 represents a 13% increase over the current FOOT maintenance supplement. Type of Item: (please mark with an "x'J Public Hearing _ Ordinance First Reading Ordinance Second Reading Resolution ~ Commission Approval Discussion & Direction For Clerk's Deot Use: _ Consent Agenda Public Hearing _ Regular Agenda Original DocumenUContract Attached for Execution by City Clerk Original DocumenUContract Held by Department for Execution Reviewed by City Attorney Reviewed by Finance Dept. Reviewed by ( ) ~~IJ- N/A N/A N/A 2 RESOLUTION NO. 2010- _ A RESOLUTION OF THE CITY OF OCOEE, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A MEMORANDUM OF AGREEMENT BETWEEN THE CITY AND THE FLORIDA DEPARTMENT OF TRANSPORTATION FOR THE MAINTENANCE OF STATE ROAD RIGHT-OF-WAY BY THE CITY; PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: SECTION 1. The City Commission of the City of Ocoee has the authority to adopUhis Resolution pursuant to Article VIII of the Constitution of the State of Florida and Chapter 166, Florida statutes. SECTION 2. The Mayor and City Clerk are hereby authorized and directed to execute that "Highway Maintenance Memorandum of Agreement, Contract No.: APU-76" between the City and the Florida Department of Transportation, a copy of which is attached hereto and incorporated by reference. SECTION 3. Severability. If any section, subsection, sentence, clause, phrase or portion of the Resolution is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not effect the validity of the remaining portion hereto. SECTION 4. Effective Date. This Resolution shall become effective immediately upon passage and adoption. PASSED AND ADOPTED this ATTEST: Beth Eikenberry, City Clerk (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA APPROVED AS TO FORM AND LEGALITY THIS DAY OF ,2010. FOLEY & LARDNERLLP By: City Attorney day of ,2010. APPROVED: CITY OF OCOEE, FLORIDA S. Scott Vandergrift, Mayor APPROVED BY THE CITY OF OCOEE COMMISSION AT A MEETING HELD ON ,2010, UNDER AGENDA ITEM NO. THE CITY OF OCOEE AND THE FLORIDA DEPARTMENT OF TRANSPORTATION IDGHW A Y MAINTENANCE MEMORANDUM OF AGREEMENT Contract No.: APU-76 THIS Agreement, entered into this day ,2010, by and between the STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, a component agency of the State of Florida, hereinafter called the DEPARTMENT and the CITY OF OCOEE, State of Florida, existing under the Laws of Florida, hereinafter called the CITY WITNESSETH WHEREAS, as a part of the continual updating of the State of Florida Highway System, the DEPARTMENT, for the purpose of safety, has created roadway, roadside areas and median strips on that part of the State Highway System within the limits of the CITY or adjacent to; and WHEREAS, the CITY hereto is of the opinion that said roadway, roadside areas and median strips shall be attractively maintained; WHEREAS, the parties hereto mutually recognize the need for entering into an Agreement designating and setting forth the responsibilities of each party; and WHEREAS, the CITY, by Resolution dated the day of ,2010 attached hereto as Exhibit "A" which by reference hereto shall become a part hereof, desires to enter into this Agreement and authorizes its officers to do so. NOW, THEREFORE, for and in consideration of the mutual benefits to flow each to the other, the parties covenant and agree as follows: Fin. Proj. No. 24429&-1-7&-01 Contract No. APU-76 City ofOcoee Page 1 of11 1. The CITY shall be responsible for routine maintenance of all shoUlders, landscaped and/or turfed areas within DEPARTMENT rights-of-way having limits described by Exhibit "B", or subsequent amended limits mutually agreed to in writing by both parties. For the purpose of this Agreement, the maintenance to be provided by the CITY is defmed in Exhibit "C", or as defined by subsequent amended definitions agreed in writing by both parties. 2. In the event of a natural disaster (Le. hurricane, tornado, etc.) or other normal occurrences such as vehicle accidents and hazardous waste spills, the CITY and the DEPARTMENT will cooperate and coordinate the use of the their respective resources to provide for the clean up, removal and disposal of debris or other substances from the DEPARTMENT's right of way (described in Exhibit "B" or subsequently amended limits mutually agreed to in writing by the parties hereto). The DEPARTMENT shall not deduct from the payment to the CITY costs for impairment of performance of any activity or part thereof defined in Exhibit "C", as a result of such event and the redirection of CITY forces towards fulfillment of the responsibility under this article. This paragraph shall not be interpreted to reduce the CITY's right to compensation or reimbursement from any other sources (Le., FEMA) for the debris removal or other activities of the CITY subsequent to a natural disaster or accident. 3. To the extent permitted by Florida law, the CITY agrees that it will indemnify and hold harmless the DEPARTMENT and all of the DEPARTMENT's officers, agents, and employees from any claim, loss, damage, cost, charge or expense arising out of any act, action, neglect or omission by the CITY during the performance of this Agreement, whether direct or indirect, and whether to any person or property to which the DEPARTMENT or said parties may be subject, except that neither the CITY nor any of its subcontractors will be liable under this section for damages arising out of injury or damage to persons or property directly caused or resulting from the negligence of the DEPARTMENT or any of its officers, agents, or employees. The forgoing provision is not intended to give rise to rights in any third party to recover damages from the CITY, nor is it intention to constitute a waiver of sovereign immunity. City ofOcoee Fin. Proj. No. 244298-1-78-01 Contract No. APU-76 Page 2 of 11 4. If, at any time while the terms of this Agreement are in effect, it shall come to the attention of the DEPARTMENT's District Director of Transportation Operations, District 5, that the CITY responsibility as established herein or a part thereof is not being properly accomplished pursuant to the terms ofthis Agreement, said Director of Transportation Operations, District 5, may, at his option, issue a written notice in care of the Public Works Director to place said CITY on notice thereof. Thereafter the CITY shall have a period of (30) thirty calendar days within which to correct the cited deficiency or deficiencies. If said deficiency or deficiencies are not corrected within this time period the DEPARTMENT may at its option, proceed as follows: (A) Maintain the roadway shoulders, median strip or roadside area declared deficient with the DEPARTMENT or a Contractor's material, equipment and personnel. The actual cost for such work will be deducted from payment to the CITY or (B) Terminate this Agreement in accordance with Paragraph II of this Agreement. 5. During the term of this Agreement, the DEPARTMENT may from time to time engage in transportation projects on the roads covered by this agreement. Some of those projects may involve the DEPARTMENT's construction contractor temporarily assuming maintenance responsibility for the limits ofthe project. In that event, the DEPARTMENT will notify the Local Government of the limits of the project and the time frame for the project. During that time and for those limits, the Local Government will be released from its obligation to perform maintenance on those roads and the compensation to be paid under this agreement will be temporarily reduced. The reduction in compensation shall be based on the formula used to initially compute the amount of compensation under this agreement and the Local Government will be notified of the amount ofthe reduction as part ofthe above-referenced notice. 6. The Department agrees to pay to the CITY, following a Notice to Proceed, compensation for the cost of maintenance as described under Item I of this Agreement. The payment will be in the amount of$10,345.00 per quarter or a total sum of$41,380.00 per year. City ofOcoee Fin. Proj. No. 244298-1-78-01 Contract No. APU-76 Page 3 of 11 In the event this Agreement is terminated as established by Paragraph II herein, payment shall be prorated to the date termination occurs. Detailed quarterly invoices, as described further herein shall be sent to the Maintenance Contract Manager of the Department at 420 West Landstreet Road, Orlando, Florida, 32824. Delivery shall be effective upon receipt of a proper quarterly invoice and any required, associated documents. 7. Payment shall be made only after receipt of goods and services as provided in Section 215.422, Florida Statutes. (A) Any penalty for delay in payment shall be in accordance with Section 215.422(3) (b), Florida Statutes. Section 215.422(5), Florida Statutes provides that all purchasing agreements between a state agency and a vendor, applicable to this section, shall include a statement of the vendor's rights and the state's responsibilities under this section. The vendor's rights shall include being provided with the name and telephone number of the Vendor Ombudsman within the Department of Financial Services. (B) The CITY should be aware of the following time frames. Upon receipt, the DEPARTMENT has seven working days to inspect and approve the goods and services, unless otherwise specified herein. The DEPARTMENT has 20 days to deliver a request for payment (voucher) to the Department of Finance. The 20 days are measured from the latter of the date the invoice is received at the location stated herein, or the goods or services are received, inspected and approved. (C) If payment is not available within 40 days, a separate interest penalty as established pursuant to Section 215.422, Florida Statutes, will be due and payable, in addition to the invoice amount, to the CITY. Interest penalties ofless than one ($1.00) dollar shall not be enforced unless the CITY requests payment. Invoices, which have to be returned to the CITY because of CITY preparation errors, will result in a delay in the payment. The invoice payment requirements do not start until a properly completed invoice is provided to the DEPARTMENT. (D) A Vendor Ombudsman has been established within the Department of Financial Services. The duties of this individual include acting as an advocate for vendors who City of Ocoee Fin. Proj. No. 244298-1-78-01 Contract No. APU-76 Page 4 of II may be experiencing problems in obtaining timely payment(s) from the DEPARTMENT. The Vendor Ombudsman may be contacted at (850) 410-9724 or by calling the State Comptrollers Hotline, 1-800-848-3792. 8. Bills for fees or other compensation for services or expenses shall be submitted in detail sufficient for a proper preaudit and postaudit thereof. 9. Records of costs incurred under terms of this Agreement shall be maintained and made available upon request to the DEPARTMENT at all times during the period ofthis Agreement and for three years after final payment is made. Copies of these documents and records shall be furnished to the DEPARTMENT upon request. Records of costs incurred include the CITY's general accounting records and the project records, together with supporting documents and records of the CITY and all subcontractors performing work, and all other records of the CITY and subcontractors considered necessary by the DEPARTMENT for a proper audit of costs. 10. The CITY shall allow public access to all documents, papers, letters, or other material subject to the provisions of Chapter 119, Florida Statutes, and made or received by the CITY in conjunction with this Agreement. Failure by the CITY to grant such public access shall be grounds forimmediate unilateral cancellation of this Agreement by the DEPARTMENT. 11. This Agreement or any part thereof is subject to termination under anyone of the following conditions: (A) In the event the DEPARTMENT exercises the option identified by Paragraph 4 of this Agreement. (B) In the event the Legislature fails to make an annual appropriation to pay for the CITY's services to be performed hereunder. 12. The term of this Agreement commences on the effective date of the Notice to Proceed issued to the CITY by the Department's District Maintenance Engineer, District 5, or City ofOcoee Fin. Proj. No. 244298-1-78-01 Contract No. APU-76 Page S of11 designee, and shall continue for a period ofthree (3) years from the effective date of issued Notice to Proceed. This Agreement may be ren'ewed for a period that may not exceed one three (3) year term. Renewal shall be contingent upon satisfactory performance evaluations by the DEPARTMENT and subject to the availability of funds. Any renewal or extension shall be in writing and shall be subject to the same terms and conditions set forth in this Agreement. The Renewal shall be made at the discretion and option of the DEPARTMENT and agreed to in writing by both parties; Le., the Authorized Signatory for the CITY, and the Director of Transportation Operations, District 5, for the DEPARTMENT. Renewals shall be contingent upon satisfactory performance evaluations by the DEPARTMENT and subject to the availability of funds. The term of this Agreement may be extended for a period not to exceed six (6) months, upon written Agreement by both parties and subject to the same terms and conditions as applicable for renewal ofthis Agreement. 13. In the event this Agreement extends beyond the DEPARTMENT's current Fiscal Year that begins on July 1 of each year and ends on June 30 of each succeeding year, the CITY and the DEPARTMENT mutually agree that the State of Florida's performance and obligation to pay under this Contract is contingent upon an annual appropriation by the Legislature. In addition, Section 339.135(6)(a) of the Florida Statutes is incorporated by reference, and set forth herein below as follows: F.S. "339.135(6)(a)" - 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 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 one (1) City ofOcoee Fin. Proj. No. 244298-1-78-01 Contract No. APU-76 Page 6 of 11 year, but any Contract so made shall be executory only for the value ofthe__ ~ 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 having a term for a period of more than one (1) year. 14. All work done on the DEPARTMENT rights-of-way shall be accomplished in accordance with the Department of Transportation Manual on Uniform Traffic Control Devices and The Department of Transportation Design Standards, current edition. IS. This writing embodies the whole agreement and understanding ofthe parties. There are no promises, terms, conditions, or obligations other than those contained herein, and this Agreement shall supersede all previous communications, representations, or agreements either verbal or written, between the parties hereto. 16. This Agreement is nontransferable and nonassignable in whole or in part without consent of the DEPARTMENT. 17. This Agreement shall be governed by and construed according to the laws of the State of Florida. 18. A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid, proposal, or reply on a contract to provide any goods or services to a public entity, may not submit a bid, proposal, or reply on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids, proposals, or replies on leases of real property to any public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, Florida Statutes, for CATEGORY TWO for a period of thirty-six (36) months following the date of being placed on the convicted vendor list. City ofOcoee Fin. Proj. No. 244298-1-78-01 Contract No. APU-76 Page 7 of 11 EXHmIT "A" RESOLUTION City ofOcoee Fin. Proj. No. 244298-1-78-01 Contract No. APU-76 Page 80f11 EXHmIT "B" THE ROADWAYS INCLUDED IN TillS AGREEMENT ARE: SECTION S.R. LOCATION DESCRIPTION LENGTH 75050 50 West Colonial Drive From S.R. 429 (MP 6.081) 3.257 Miles To Good Homes Road (MP 9.338) 75180 437 Bowness Road From Franklin Street (MP 0.000) 0.106 Miles To Silver Star Road (MP 0.106) 75230 438 Franklin Street/Silver Star Road From S.R. 429 0.399 Miles (MP 6.752) To S.R. 437 (M.P. 7.151) 75250 438 Silver Star Road From Ocoee-Apopka Road 2.733 Miles (MP 0.000) To Silver Bend Boulevard (MP 2.553) And From Coventry Lane (MP 3.082) to Woodhaven Court (MP 3.262) 75250-003 438 Silver Star Road (Realignment) From Silver 0.524 Miles Bend Boulevard (MP 0.000) To Coventry Lane (MP 0.524) Total 7.019 Miles City ofOcoee Fin. Proj. No. 244298-1-78-01 Contract No. APU-76 Page 9 of 11 EXHmIT "C" ACTIVITY 437 451 461 464 471 485 487 494 540 541 542 543 545 DESCRIPTION Miscellaneous Slope and Ditch Repair Clean Drainage Structures Roadside Ditches - Clean and Reshape Outfall Ditches - Clean and Repair Large Machine Mowing Small Machine Mowing Weed Control- Manual Chemical Weed and Grass Control Graffiti Removal Roadside Litter Removal Road Sweeping - Manual Road Sweeping - Mechanical Edging and Sweeping City ofOcoee Fin. Proj. No. 244298-1-78-01 Contract No. APU-76 Page 10 of 11 IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day and year first above written. - -- CITY OF OCOEE STATE OF FLORIDA ----- DEPARTMENT OF TRANSPORTATION (Date) By: District Director of Operations District Five By: (Date) Name and Title (Date) Attest: Executive Secretary Attest: (SEAL) (Date) LEGAL REVIEW LEGAL REVIEW Legal Approval (Date) District Counsel (Date) District Maintenance Engineer Approval (- (Date) City ofOcoee Fin. Proj. No. 244298-1-78-01 Contract No. APU-76 Page 11 of II