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HomeMy WebLinkAboutExhibitAGREEMENT BETWEEN THE CITY OF MIAMI AND MIAMI RIVER FUND, INC., THE FINANCIAL AGENCY FOR THE MIAMI RIVER COMMISSION This Agreement (the "Agreement") entered this day of July, 2022, (but effective as of 2022 being the "Effective Date") by and between the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter referred to as the "CITY" or "GRANTOR"), and MIAMI RIVER FUND, INC., a Florida not for profit corporation, acting as the financial agency for the Miami River Commission (hereinafter referred to as "GRANTEE"). RECITAL WHEREAS, pursuant to its National Pollution Discharge Elimination System Permit ("Permit") administered by the Florida Department of Environmental Protection ("FDEP"), the City desires to enter into an Agreement with GRANTEE in order for the GRANTEE to assist with the City's educational requirements under the Permit; and WHEREAS, the CITY's Storm Water Utility Funds are available pursuant to Section 18- 298 of the Code of the City of Miami, Florida, as amended (the "City Code") and authorizes the CITY's Department of Resilience and Public Works (hereinafter "DEPARTMENT") to fund educational programs required under the Permit and the Permit allows for local entities such as the GRANTEE to assist the City with those educational requirements; and WHEREAS, on 2022 the City Commission adopted Resolution No. 22- , authorizing the City Manager to execute an agreement under the terms and conditions set for below with the GRANTEE to provide educational programs related to the Miami River for a three (3) year term for the period of October 1, 2022 and ending on September 30, 2025, allocating funds from the CITY's General Fund Non -Departmental Accounts in order to fund the Page 1 of 18 CITY's share in support of the GRANTEE, for a total contract amount not to exceed One Hundred Fifty Thousand Dollars ($150,000.00); NOW, THEREFORE, the CITY and GRANTEE do mutually agree as follows: 1. ORDER OF PRECEDENCE The order of precedence whenever there is conflicting or inconsistent language between documents is as follows, in descending order of priority: (1) this Agreement and any amendments thereto; and (2) GRANTEE Proposal and scope of services Attachment "A". 2. TERM The term of this Agreement shall cover three (3) fiscal years (FY 2022-2025) effective as of October 1, 2022 and ending on September 30, 2025, unless terminated sooner as provided herein below. 3. CITY AUTHORIZATION For the purpose of this Agreement, DEPARTMENT will act on behalf of the CITY in the fiscal control, programmatic monitoring, and modification of this Agreement, subject to approval of the City Manager and the City Attorney, except as otherwise provided by this Agreement. 4. GRANTEE AGREES (a) GRANTEE shall use the grant of Fifty Thousand Dollars ($50,000.00) received from CITY to offset operational costs incurred during the term of this Agreement for CITY's fair share of administrative costs of the GRANTEE, and to continue providing educational programs related to the Miami River. Page 2 of 18 (b) Except as otherwise stated in this Agreement, the funds appropriated herein will be expended for GRANTEE staff, clerical, travel, supplies and contingencies. (c) GRANTEE shall submit to DEPARTMENT an annual written report each October 1, during the term of this Agreement, and shall provide minutes of all public meetings which demonstrate use of funds as well as the performance of the organization in attaining its stated objectives for which funding support was requested. (d) GRANTEE shall submit to DEPARTMENT an independent audit by a Certified Public Accountant ("CPA"), which must include the expression of an opinion on the financial statements and accounts of funds for fiscal years 2022-2025 as more particularly described in Section 13 (c). 5. GRANT (a) The CITY shall pay the GRANTEE, as maximum compensation for the services outlined pursuant to Section 4 hereof, Fifty Thousand Dollars ($50,000.00) for each fiscal year identified in Section 2 hereof, for a total not to exceed amount of One Hundred Fifty Thousand Dollars ($150,000.00) throughout the term of this Agreement. (b) Said funds shall be paid annually as an advance for expenditures incurred during the Agreement period. All expenditures must be verified by copies of the cancelled checks used to pay each specific invoice. In case that an invoice must be submitted to several funding sources, the invoice shall Page 3 of 18 indicate that exact amount paid by other funding sources equaling the total of the invoice. (c) CITY and GRANTEE agree that the funds granted herein may not be used to reimburse expenses incurred prior to the commencement date of October 1, 2022 under this Agreement. (d) CITY shall have the right to review and audit the time records and related records of GRANTEE pertaining to any payments by CITY. 6. TERMINATION OF AGREEMENT CITY retains the right to terminate this Agreement for cause at any time prior to expiration of the term without penalty to CITY. In that event, notice of termination of this Agreement shall be in writing to GRANTEE who shall be paid for expenses incurred prior to the date of the receipt of the notice of termination. In no case, however, shall CITY pay GRANTEE an amount in excess of the total sum provided by this Agreement. It is hereby understood by and between CITY and GRANTEE that any payments made in accordance with this Section to GRANTEE shall be made only if said GRANTEE is not in default under the terms of this Agreement. If GRANTEE is in default, then CITY shall in no way be obligated and shall not pay to GRANTEE any sum whatsoever. 7. PUBLIC RECORDS A. GRANTEE understands that the public shall have access, at all reasonable times, to all documents and information pertaining to CITY MOUs, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the CITY and the public to all documents subject to disclosure under applicable laws. Page 4 of 18 GRANTEE's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this MOU by the CITY. B. GRANTEE shall additionally comply with Section 119.0701, Florida Statutes, including without limitation: (1) keeping and maintaining public records that ordinarily and necessarily would be required by the CITY to perform this service; (2) provide the public with access to public records on the same terms and conditions as the CITY would at the cost provided by Chapter 119, Florida Statutes, or as otherwise provided by law; (3) ensure that public records that are exempt or confidential and exempt from disclosure are not disclosed except as authorized by law; (4) meet all requirements for retaining public records and transfer, at no cost, to the CITY all public records in its possession upon termination of this MOU and destroy any duplicate public records that are exempt or confidential and exempt from disclosure requirements; and, (5) provide all electronically stored public records to the CITY in a format compatible with the CITY's information technology systems. C. Should GRANTEE determine to dispute any public access provision required by Florida Statutes, then GRANTEE shall do so at its own expense and at no cost to the CITY. IF GRANTEE HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THEGRANTEE'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT (305) 416-1830, VIA EMAIL AT PUBLICRECORDSrai.MIAMIGOV.COM, OR REGULAR EMAIL AT CITY Page 5 of 18 OF MIAMI OFFICE OF THE CITY ATTORNEY, 444 SW 2ND AVENUE, 9TH FLOOR, MIAMI, FL 33130. GENERAL CONDITIONS (a) (b) All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail addressed to the other party at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served; or if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. GRANTEE: Miami River Funds, Inc. c/o Robert King High 1407 NW 7TH Street, Suite D Miami, FL 33125 CITY: Juvenal Santana, Director of Resilience and Public Works 444 SW 2 Avenue, 8t' Floor Miami, FL 33130 Art Non ega, V City Manager 444 SW 2 Avenue, 10t' Floor Miami, FL 33130 Victoria Mendez, City Attorney Office of the City Attorney 444 SW 2 Avenue, 10t' Floor Miami, FL 33130 Titles and paragraph headings are for convenient reference and are not a part of this Agreement. Page 6 of 18 (c) In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms of this Agreement shall govern. (d) Should any provisions, paragraphs, sentences, words or phrases contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provisions, paragraphs, sentences, words or phrases shall be deemed modified to the extent necessary in order to conform with such laws, or, if not modifiable to conform with such laws, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect. 9. AWARD OF AGREEMENT GRANTEE warrants that it has not employed or retained any person employed by CITY to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person employed by CITY any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Agreement. 10. NON-DELEGABILITY The obligations undertaken by GRANTEE pursuant to this Agreement shall not be delegated or assigned to any other person or firm without the CITY' S prior written consent. 11. CONSTRUCTION OF AGREEMENT Page 7 of 18 This Agreement shall be construed and enforced according to the laws of the State of Florida. Venue in any proceeding between the parties shall be in Miami -Dade County, Florida. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive the right to a jury trial. 12. SUCCESSORS AND ASSIGNS This Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors and assigns. 13. MONITORING, INSPECTION AND AUDIT RIGHTS (a) CITY reserves the right to monitor, inspect and audit the records of GRANTEE at any time during the performance of this Agreement and for a period of three (3) years after final payment is made under this Agreement. (b) CITY shall audit all GRANTEES receiving more than Fifteen Thousand Dollars ($15,000.00). (c) All GRANTEES receiving cash of Twenty -Five Thousand Dollars ($25,000.00) or more agree to submit to the DEPARTMENT an independent audit, by a CPA. Said audit must include the expression of an opinion as to the actual and budgeted receipts and expenditures of the CITY's funds. Said audit shall be submitted to DEPARTMENT no later than ninety (90) days after the termination of this Agreement or final receipt of CITY funds, whichever is applicable. Page 8 of 18 14. INDEMNIFICATION GRANTEE shall indemnify, defend, and hold CITY and its elected officials, officers, employees, representatives and agents (collectively the "Indemnitees") harmless from and against any and all claims, liabilities, losses, and causes of action that may arise out of GRANTEE's activities under this Agreement, including all acts or omissions to act on the part of the GRANTEE, including any person acting for or on their behalf, and from and against any orders, judgments or decrees which may be entered, and from and against all costs, attorney's fees, expenses and liabilities incurred in the defense of any such claims or in the investigation thereof. GRANTEE's obligations to indemnify, defend and hold harmless the Indemnitees shall survive the termination of this Agreement. GRANTEE understands and agrees that any and all liabilities regarding the use of any subcontractor for services related to this Agreement shall be born solely by GRANTEE throughout the duration of this Agreement and that this provision shall survive the termination of this Agreement. 15. CONFLICT OF INTEREST (a) GRANTEE covenants that no persons under its employ who presently exercise any functions or responsibilities in connection with this Agreement has any personal financial interests, direct or indirect, with the CITY. GRANTEE further covenants that, in the performance of this Agreement, no person having such conflicting interest shall be employed. Any such Page 9 of 18 interests on the part of GRANTEE, or its employees, must be disclosed in writing to the CITY. (b) GRANTEE is aware of the conflict of interest laws of the City of Miami Code of Ordinances, Chapter 2, Article V; the Miami -Dade County Code of Ordinances, Section 2-11.1 and the laws of the State of Florida, and agrees that it will fully comply in all respects with the terms of said laws. 16. INDEPENDENT CONTRACTOR GRANTEE and its employees and agents shall be deemed to be independent contractors and not agents or employees of the CITY, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of the CITY or any rights generally afforded classified or unclassified employees; further GRANTEE, its employees and agents, shall not be deemed entitled to Florida Workers' compensation benefits as employees of the CITY. 17. DEFAULT PROVISION In the event that GRANTEE shall fail to comply with each and every term and condition of this Agreement or fails to perform any of the terms and conditions contained herein, then the CITY, at its sole discretion, upon written notice to GRANTEE, may cancel and terminate this Agreement, and all payments, advances or other funds paid to GRANTEE by the CITY while GRANTEE was in default of the provisions herein contained shall be forthwith returned to the CITY. 18. NON-DISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY, AND AMERICANS WITH DISABILITIES ACT. GRANTEE shall not unlawfully discriminate against any person in its operations and activities or in its use or expenditure of funds in fulfilling its obligations under Page 10 of 18 this Agreement. GRANTEE shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of providing any services funded by City, including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. In addition, GRANTEE shall take affirmative steps to ensure nondiscrimination in employment against disabled persons. GRANTEE affirms that it shall not discriminate as to race, age, religion, color, gender, gender identity, sexual orientation, national origin, marital status, physical or mental disability, political affiliation, or any other factor which cannot be lawfully used in connection with its performance under the Formal Solicitation. Furthermore, GRANTEE affirms that no otherwise qualified individual shall solely by reason of their race, age, religion, color, gender, gender identity, sexual orientation, national origin, marital status, physical or mental disability, political affiliation, or any other factor which cannot be lawfully used, be excluded from the participation in, be denied benefits of, or be subjected to, discrimination under any program or activity. In connection with the conduct of its business, including performance of services and employment of personnel, GRANTEE shall not discriminate against any person on the basis of race, age, religion, color, gender, gender identity, sexual orientation, national origin, marital status, physical or mental disability, political affiliation, or any other factor which cannot be lawfully used. All persons having appropriate qualifications shall be afforded equal opportunity for employment. Page 11 of 18 19. WAIVER No waiver of any provision hereof shall be deemed to have been made unless such waiver is in writing signed by the CITY. The failure of CITY to insist upon the strict performance of any of the provisions or conditions of this Agreement shall not be construed as waiving or relinquishing in the future any such covenants or conditions, but the same shall continue and remain in full force and effect. 20. CONTINGENCY CLAUSE Funding for this Agreement is contingent on the availability of funds and continued authorization for programs activities and is subject to amendment or termination due to lack of funds or authorization, reduction of funds, and/or change in regulations. 21. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS All parties to this Agreement shall comply with all applicable laws, ordinances and codes of federal, state and local government. GRANTEE further agrees to include in all of GRANTEE's agreements with subcontractors for any services related to this Agreement this provision requiring subcontractors to comply with an observe all applicable federal, state, and local laws, rules, regulations, codes and ordinances, as they may be amended from time to time. 22. BONDING AND INSURANCE (a) During the term of this Agreement, GRANTEE shall maintain insurance coverages in amounts as determined by the CITY and as set forth in Attachment "C" hereto and made a part hereof. Page 12 of 18 (b) GRANTEE shall provide protection to the CITY to the extent of the indemnification, pursuant to Section 14 hereof. (c) GRANTEE shall correct any insurance certificates as requested by the CITY's Risk Management Director. All such insurance, including renewals, shall be subject to the approval of the CITY for adequacy of protection and evidence of such coverage(s) and shall be furnished to the CITY's Risk Management Director, that it will not be canceled, modified, or changed during the performance of the services under this Agreement without thirty (30) calendar days prior written notice to the CITY's Risk Management Director. Completed Certificates of Insurance shall be filed with the CITY prior to the performance of Services hereunder, provided, however, that GRANTEE shall at any time upon request file duplicate copies of the policies of such insurance with the CITY. (d) GRANTEE understands and agrees that any and all liabilities regarding the use of any of GRANTEE's employees or any of GRANTEE's subcontractors for services related to this Agreement shall be borne solely by GRANTEE throughout the term of this Agreement and that this provision shall survive the termination of this Agreement. GRANTEE further understands and agrees that insurance for each employee of GRANTEE and each subcontractor providing services related to this Agreement shall be maintained in good standing and approved by the CITY's Risk Management Director for the duration of this Agreement. Page 13 of 18 (e) GRANTEE shall be responsible for assuring that the insurance certificates required under this Agreement remain in full force and effect for the duration of this Agreement, including any extension hereof. If insurance certificates are scheduled to expire during the term of this Agreement and any extension hereof, GRANTEE shall be responsible for submitting new or renewed insurance certificates to the CITY's Risk Management Director at a minimum of ten (10) calendar days in advance of such expiration. In the event that expired certificates are not replaced, with new or renewed certificates which cover the term of this Agreement and any extension thereof: (i) the CITY shall suspend this Agreement until such time as the new or renewed certificate(s) are received in acceptable form by the CITY's Risk Management Director; or (ii) the CITY may, at its sole discretion, terminate the Agreement for cause and seek re -procurement damages from GRANTEE in conjunction with the violation of the terms and conditions of this Agreement. (f) Compliance with the foregoing requirements shall not relieve GRANTEE of its liabilities and obligations under this Agreement. 23. ENTIRE AGREEMENT This instrument and its attachments constitute the sole and only agreement of the parties hereto relating to the matters set forth herein and correctly sets forth the rights, duties and obligations of each to the other as of its date. Any prior Page 14 of 18 agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. 24. ASSURANCES AND CERTIFICATIONS GRANTEE assures and certifies that: (a) All expenditures of funds shall be made in accordance with the proposal, Attachment "A" approved by the City Commission and incorporated herein by this reference. The CITY shall not reimburse the GRANTEE for state sales tax. (b) CITY funds shall not be co -mingled with any other funds, and separate bank accounts and accounting records shall be maintained. (c) Expenditures of CITY funds shall be properly documented and such documentation shall be maintained for at least three (3) years after the termination of this Agreement. (d) Periodic progress reports as reasonably requested by the CITY shall be provided. (e) GRANTEE shall be personally liable for any CITY funds expended that were not consistent with the program approved by the CITY Commission or any funds expended not in accordance with proper accounting standards as determined by competent auditing authority. (f) No activity under this Agreement shall involve political activities. GRANTEE possesses legal authority to enter into this Agreement; a Resolution, Motion, or similar action, Attachment "B" hereto incorporated herein by this reference, has been duly adopted or passed as an official act Page 15 of 18 of GRANTEE's governing body, authorizing the execution of this Agreement, including all understandings and assurances contained herein, and directing and authorizing the person identified as the official representative of GRANTEE to act in connection with GRANTEE and to provide such additional information as may be required. 25. COUNTERPARTS, ELECTRONIC SIGNATURES: This Agreement may be executed in three (3) or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute one and the same agreement. This Agreement may be executed in counterparts, each of which shall be an original as against either Party whose signature appears thereon, but all of which taken together shall constitute but one and the same instrument. An executed facsimile or electronic scanned copy of this Agreement shall have the same force and effect as an original. The parties shall be entitled to sign and transmit an electronic signature on this Agreement (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Any parry providing an electronic signature agrees to promptly execute and deliver to the other parties an original signed Agreement upon request. 26. AMENDMENTS No amendments to this Agreement shall be binding on either party unless in writing and signed by both parties. Page 16 of 18 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by the respective officials thereunto duly authorized, the day and year first above written. "GRANTEE„ ATTEST: MIAMI RIVER FUND, INC., a Florida not for profit corporation, acting as financial agency for the Miami River Commission r � BY: ,`r J BY: ' ►�—� Witness Preside t, MiarfiMiver F` d, Inc. STATE OF FLORIDA ) COUNTY OF MIAMI-DADE) I HEREBY CERTIFY that on this I day of , 2022, personally appeared before me, an officer duly authorized to administer oaths and tape acknowledgements, P6"Ll ►_in%Awrl , as President of MIAMI RIVER FUND, INC., a Florida Corporation. —6GVY z Z© r He/She is personally known to me or has produced X DAr tv 4 2was identification. ►Y ►r`° CAINA IAENA LEON Notary Public • State of Florida Commission # HH p4W87 a r� My Comm. Expires Jan 3, 2425 Bonded through Nations! Notary Assn. ATTEST: Todd B. Hannon, City Clerk APPROVED AS TO FORM AND CORRECTNESS: M. Victoria Mendez City Attorney NOTARY PUBLIC STATE OF FLORIDA Print Name: �M .r1�,,JA Af"n1 Commission No.: 1414 0#400 S'- Commission Expires: JAivu3, a e a t; "CITY" or "GRANTOR" CITY OF MIAMI, a Florida municipal corporation Arthur Noricga V, City Manager APPROVED AS TO INSURANCE REQUIREMENTS: am Page 17 of 18 Ann -Marie Sharpe, Director Risk Management ATTACHMENT " „ CORPORATE RESOLUTION WHEREAS, Miami River Fund, Inc., the financing agency of the Miami River Commission ("Agency"), desires to enter into an agreement with the City of Miami, a Florida municipal corporation ("City"); and WHEREAS, the Agency's Board of Directors at a duly held corporate meeting has considered the matter in accordance with the by-laws of the corporation; NOW, THEREFORE, be it resolved by the Agency's Board of Directors that the President, is hereby authorized and instructed to enter into an agreement in the name and on behalf of this corporation with the City upon the terms contained in the proposed agreement to which this resolution is attached. DATED this -L day of J tit L , 2022. Corporate Secretary Chairpe n of th anDirectors (Affix Corporate Seal) Page 18 of 18