HomeMy WebLinkAboutExhibit 1AGREEMENT TO ESTABLISH
THE ELEVATE MIAMI FUND
(A fiscal sponsorship fund at Dade Community Foundation)
THIS AGREEMENT (the "Agreement") is made and entered into this day of
2009, by and between the City of Miami, a municipal corporation of the State of
Florida having offices at 3500 Pan American Drive, Miami, Florida 33130 (the "City"), and
Dade Community Foundation, Inc. (the "Foundation"), a Florida not for profit corporation and
community foundation having its principal office at 200 South Biscayne Boulevard, Suite 505,
Miami, Florida 33131.
WITNESSETH:
WHEREAS, the City desires to better prepare its citizens to participate and compete in
the new digital society and digital economy by assisting them in becoming more comfortable
with and adaptable to new technologies;
WHEREAS, in pursuit of this aim, the City launched and maintains a comprehensive
and wide-ranging initiative under the name "Elevate Miami that includes four components:
(1) Digital Literacy; (2) ACCESS Miami; (3) the Education Compact; and (4) Community
Outreach (collectively, the "Program"). Each component targets the City's youth, low-income
families, minorities, seniors and all residents facing barriers to economic empowerment;
WHEREAS, the Program currently provides citizens of Miami with: (1) the wealth -
building tools necessary for economic self-sufficiency; (2) programs that enhance and support
efforts made by the school district with an emphasis on improving student achievement, family
involvement and the student's learning environment; (3) access to technology; (4) computer
literacy training; (5) affordable technology packages that include internet access, hardware,
software, financing, and related components; and (6) capacity building for community
organizations and small businesses;
WHEREAS, the City has discussed with the Foundation ways to broaden and facilitate
support for the Program from businesses, private citizens, and private foundations both within
the Miami community and beyond;
WHEREAS, the City and the Foundation agree that the best way for the Program to
advance in the future is for the Foundation to oversee the incorporation of a new supporting
organization of the Foundation ("Elevate Miami, Inc."), which will seek recognition of its own
status as a tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code of
1986, as amended, and for Elevate Miami, Inc. to be constituted as a public-private partnership
and to be entrusted with the mission of the Program;
WHEREAS, pending the incorporation of Elevate Miami, Inc., the Internal Revenue
Service's recognition of Elevate Miami, Inc.'s tax-exempt status, and the City's transfer of the
existing assets, except any monies allocated from the City's General Fund, from the Program to
Elevate Miami, Inc., the City and the Foundation agree that the new joint public-private conduct
of the Program should commence as soon as possible;
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WHEREAS, the City and the Foundation further agree that the day-to-day operations of
the Program will be the responsibility of a person or persons designated by the City Manager and
that the Foundation will act as the fiscal sponsor for the Program through a fiscal sponsorship
fund;
WHEREAS, the City desires to create a fiscal sponsorship fund with the Foundation for
the immediate philanthropic purpose of supporting and advancing the work of the Program
initiative pending: (1) the incorporation of Elevate Miami, Inc.; (2) the Internal Revenue
Service's recognition of Elevate Miami Inc.'s tax-exempt status; and (3) the transfer of the
existing assets, except any monies allocated from the City's General Fund, from the Program to
Elevate Miami, Inc. Ultimately, the purpose of the fiscal sponsorship fund will be to advance the
initiatives of Elevate Miami, Inc.
WHEREAS, the City and others may transfer additional property to and for such
purposes;
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the City hereby irrevocably assigns, conveys, transfers, and delivers to the Foundation
the assets listed in EXHIBIT A TO HAVE AND TO HOLD the same and all income from the
foregoing property, NEVERTHELESS as a fiscal sponsorship fund of the Foundation, for the
following uses and purposes and subject to the terms and conditions set forth herein. It is agreed
and understood that the Fund will in all events be used and dedicated to a purpose permitted by
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code").
1. The fiscal sponsorship fund hereby created shall be known as the Elevate Miami Fund
(the "Fund"), which shall:
(1) Serve as the asset repository that will fund the Elevate Miami Program
pending the incorporation process which will establish Elevate Miami, Inc.
pursuant to Section 501(c)(3) of the Code; and
(2) Establish a fund council (the "Fund Council") that will:
(a) Pursue the advancement of the Program during the transition period
while the not-for-profit corporation Elevate Miami, Inc. is being
established;
(b) Facilitate the transfer of assets from the Program to Elevate Miami,
Inc.;
(c) Conduct any other activities required to fulfill the intentions of this
Agreement.
The term "assets," as used in this Agreement, shall always exclude those monies
allocated towards any component of the Program or Elevate Miami Inc. that originate
from the City's General Fund.
2. The Foundation shall hold, manage, invest, and reinvest the Fund exclusively for general
charitable uses and purposes in accordance with the Section 501(c)(3) of the Code. More
specifically, the Fund shall be used to augment and increase the programs that are offered and
available in connection with the Program.
3. In addition to the City, additional persons or entities ("Additional Donors") may
contribute to the Fund for the purpose of augmenting and increasing the programs that are
offered and available through the Program. The Fund shall be able to accept: (i) monetary
contributions, (ii) donations of computer hardware and software, and (iii) services. Donations to
the Fund shall be conveyed or lent to the City for use in connection with the Program. The
Foundation, on behalf of the Fund, shall moreover be able to serve as the licensee for software
donated, sold, transferred, or licensed or sublicensed for use in connection with the Program, and
to transfer, assign, or sublicense such licenses or sublicenses as may be necessary, and in
accordance with any applicable legal requirements, for use by qualified end-users.
4. Upon the Internal Revenue Service's recognition of the tax-exempt status of Elevate
Miami, Inc. pursuant to Section 501(c)(3) of the Code, all assets, licenses, programs, and
responsibilities of the Fund, including but not limited to the monies then held in the Fund (net of
any debts owed to the Foundation), shall be transferred, conveyed, and assigned (as the case may
be) to the name, control, and ownership (as the case may be) of Elevate Miami, Inc.
5. The City Manager or one or more representatives designated by the City Manager (the
"Designated Representative(s)") shall act as the City's representative(s) in all of its
communications and other dealings with the Foundation under this Agreement. The City
Manager hereby designates Peter Korinis, Chief Information Officer, as the initial Designated
Representative (s). The Fund Council shall: (1) supervise the development process of the Fund
and the mission of the Elevate Miami initiative; (2) seek donations, grant opportunities and
resources in general; and (3) make recommendations to the Foundation regarding grants and
other distributions from the Fund. The City Manager shall designate two (2) members of the
Fund Council, and the Foundation shall designate three (3) members. The City Manager and the
Foundation shall designate members of the Fund Council within thirty (30) days of the execution
of this Agreement. The City Manager agrees to notify the Foundation in writing if the City
elects to add or remove members of the Fund Council or to change the Designated
Representative(s). Upon the incorporation of Elevate Miami, Inc., the then -serving members of
the Fund Council shall become the initial board of directors of that corporation, and thenceforth
all references to the Fund Council herein shall be deemed to refer to the board of directors of
Elevate Miami, Inc.
6. Elevate Miami, Inc. shall include in its the articles of incorporation that its board of
directors shall consist of five (5) members, of whom the City Manager shall designate two (2)
and the Foundation shall designate three (3), consistent with the membership of the prior existing
Fund Council described in Paragraph 5 of this Agreement.
7. At all duly noticed meetings of the Fund Council, a minimum of three (3) voting
members shall constitute a quorum for the transaction of business, and each voting member shall
have one vote on every issue submitted to a vote of the Fund Council. The act of a majority of
the voting members present at a meeting at which a quorum is present shall be the act of the
Fund Council. The members of the Fund Council may make and adopt bylaws and rules for the
Fund Council's governance. However, the Foundation shall have exclusive authority over the
management of the assets maintained in the Fund until the incorporation process under Florida
law is complete, the recognition process under Section 501(c)(3) of the Code is complete, and
Elevate Miami, Inc. is otherwise fully established.
8. The Fund shall at all times be operated consistent with the charitable status of the
Foundation. All Fund expenditures and operations shall be consistent with what is permitted for
organizations described in Section 501(c)(3) of the Code. If at any time the Fund or its
operations or expenditures shall be terminated, the Fund Council shall make a recommendation
to the Foundation as to how all monies remaining in the Fund shall be utilized and distributed.
The determination of the Board of Governors of the Foundation as to whether the Fund and its
expenditures and operations are activities permitted under Section 501(c)(3) of the Code shall be
conclusive. Exhibit C attached hereto includes a model budget for the Program's use in
connection with any fundraising events/projects undertaken in connection with the Fund.
Exhibit D attached hereto sets out the Foundation's current policy with respect to fundraising by
its component funds, which the parties hereto agree applies to all fundraising on behalf of the
Fund, including as the Foundation may from time to time amend such policy.
9. The Fund shall provide a written report to the Foundation at least annually. The format
of the report shall be determined by the Foundation in cooperation with the Fund Council and
will include:
• The period covered by the report.
• An overview of the Fund's status and accomplishments during the year.
• Planned activities and goals for the following year (if any).
• A financial report, which shall include schedules of activity expenditures, a budget for
the following year (if applicable), and an explanation of any expenditures that vary by
more than ten percent (10%) from the budget (if applicable).
• Certification by the Fund Council that the reported actual expenditures are true and
correct and that, to the best of its members' knowledge, all grant money and other
distributions were used in a manner consistent with the Code.
• An inventory list of ALL donated items broken down by month that shall include the
name of each donor and a brief description of the item(s) donated.
10. The Fund does not, and shall not, act as an agent for the Foundation unless specifically
authorized in writing by the Foundation to do so. The Foundation will serve as the Fund's fiscal
sponsor. Any obligations incurred, damages or injuries caused, or misconduct committed by the
Fund are not the responsibility of the Foundation. End results of the Program are owned by the
Program and not the Foundation.
11. Record keeping with respect to all purchases, salaries, and other expenses must be
maintained by the Fund.
12. The term of this Agreement shall commence on the Effective Date hereof and shall expire
upon Elevate Miami, Inc. being fully established pursuant to Florida law and being recognized
by the Internal Revenue Service under Section 501(c)(3) of the Code, but in no event later than
five (5) years after the Effective Date. Either party may terminate the Agreement at any time
without cause upon ninety (90) days written notice.
13. The Fund Council or the Elevate Miami, Inc. board of directors, whichever is applicable,
shall have the authority to dispose of computer equipment which includes hard -drives, central
processing units, keyboards, and related components.
14. The Foundation shall receive an annual fee, which may be taken from the Fund, for
reasonable and proper compensation for services and expenses rendered to and incurred by the
Fund in accordance with the Foundation's rules governing fiscal sponsorship funds. The annual
fee shall be one percent (1%) per annum of the Fund's average balance. The annual fee shall be
calculated by using the average balance (liquid) of the Fund only, and shall EXCLUDE from the
calculation the value of any donated hardware, software, in-kind services, or designated funds.
The term "designated funds" shall be defined as those funds, which are directed by the donors or
benefactors for a specific purpose, and are contractually prohibited from being used to pay an
administrative fee as part of the donor's solicitation process. The Fund Council and Elevate
Miami Inc. Board of Directors shall (a) use their best efforts to actively pursue funding
opportunities that do not prohibit administrative fees and (b) shall only accept funding
opportunities that prohibit administrative fees if such prohibition is an absolute requirement
imposed by the donor or benefactor in accordance with its standard policies.
15. This Fiscal Sponsorship Agreement is subject to the condition that the Foundation, as of
the date of transfer, is classified as being in good standing by the Internal Revenue Service as an
organization that: (1) meets the tax exemption criteria described in Section 501(c)(3) of the Code;
and (2) is not a private foundation as defined in Section 509(a) of the Code.
16. This Agreement and the activities contemplated herein shall be administered in and under
the laws of the State of Florida, and this Agreement and the validity thereof shall be governed by
and construed in accordance with the laws of the State of Florida. In the event that the Fund
Council desires to conduct a Fund -related program or event at a location outside of the State of
Florida, it shall first coordinate with the Foundation in order to determine what additional legal
approvals and qualifications may be required under the laws of the relevant jurisdiction(s). No
program or event shall be conducted outside of Florida without the prior written approval of the
Foundation.
17. The Board of Governors of the Foundation shall have the power to modify any restriction
or condition on the distribution of funds for any specified charitable purpose or to specified
organizations if, in the sole judgment of the Board of Governors (without the approval of any
trustee, custodian or agent), such restriction or condition becomes, in effect, unnecessary,
incapable of fulfillment, or inconsistent with the charitable needs of the community or area
served.
18. The Foundation understands and acknowledges that agreements between private entities
and local governments are subject to certain laws and regulations, including laws pertaining to
private records, conflicts of interest, record keeping, etc. The City agrees that the City Manager
and all City staff who deal with the Program or the Fund shall comply with and observe all
applicable federal, state, and local laws, rules, regulations, codes, and ordinances, as they may be
amended from time to time. The Foundation agrees that it shall comply with and observe all
applicable federal, state, and local laws, rules, regulations, codes, and ordinances, as they may be
amended from time to time.
19. Subject to the provisions and limitations in Section 768.28, Florida Statutes, each of the
parties hereto (the "Indemnitor") shall indemnify, defend and hold harmless the other party and
the other party's officials, employees and agents (collectively referred to as "Indemnitees") and
each of them from and against all loss, costs, penalties, fines, damages, claims, expenses
(including attorney's fees). or liabilities (collectively referred to as "Liabilities") by reason of
any injury to or death of any person or damage to or destruction or loss of any property arising
out of, resulting from, or in connection with (i) the performance or non-performance of this
Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any
act, omission, default, or negligence (whether active or passive) of the Indemnitor, or (ii) the
failure of the Indemnitor to conform to statutes, ordinances, or other regulations or requirements
of any governmental authority, federal or state, in connection with the performance of this
Agreement. The Indemnitor expressly agrees to indemnify and hold harmless the Indemnitees, or
any of them, from and against all liabilities which may be asserted by the Indemnitor, as
provided above, for which the Indemnitor's liability would otherwise be limited to payment
under State of Florida Workers' Compensation or similar laws. The Foundation further
understands that Florida Workers' Compensation benefits available to employees of the City are
not available to the Foundation and its employees under this Agreement. The provisions of this
Paragraph 19 shall survive the term of the Agreement.
20. The Foundation fully understands and hereby agrees that it shall be the responsibility of
the Foundation to secure its own insurance coverage(s), as applicable insurance(s) will not be
paid by the City on behalf of the Foundation during the term of this Agreement. The Foundation
shall provide prior to execution of this Agreement evidence of such insurance coverage(s) and in
such amounts, as applicable, as approved by the City's Department of Risk Management in
Exhibit D attached hereto. The Foundation shall provide to the City's Department of Risk
Management prior to execution of this Agreement an independent contractor letter regarding its
exemption from Workers Compensation Insurance, if applicable.
21. The Program shall make reasonable efforts to acknowledge the Foundation as the Fund's
fiscal sponsor in all media whatsoever (whether written, graphic, oral, audio, video or electronic)
produced, published, disseminated, or distributed by the Program. In press interviews and similar
coverage, the Program shall explicitly make clear to the interviewer or other journalist that the
Fund's activities are conducted under the Foundation's fiscal sponsorship.
22. All notices or other communications required under this Agreement shall be in, writing
and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt
requested, addressed to the other party at the address indicated herein or to such other address as
a party may designate by notice given as herein provided. Notice shall be deemed given on the
day on which personally delivered; or, if by mail, on the fifth (5th) day after being posted or the
date of actual receipt, whichever is earlier. Notices must be sent to the individuals and addresses
indicated below:
If to the City:
Pedro G. Hernandez
City Manager, City of Miami
3500 Pan American Drive
Miami, FL 33133-5595
With a copy to:
Julie O. Bru
City Attorney, City of Miami
444 S.W. 2nd Avenue, 9th Floor
Miami, FL 33130-1910
If to the Foundation:
Ruth Shack, President
Dade Community Foundation
200 South Biscayne Boulevard, Suite 505
Miami, FL 33131-5330
IN WITNESS WHEREOF, the City and the Foundation have executed this
Agreement as of the date written above.
CITY OF MIAMI
Name:
Title:
DADE COMMUNITY FOUNDATION, INC.
By:
Ruth Shack, President
EXHIBIT A
THE ELEVATE MIAMI FUND
$ Two Thousand Six Hundred Seven Dollars and Fifty -Nine
$2,607.59 in cash or property has been contributed to the Fund.
CITY OF MIAMI
Name:
Title:
Cents
DADE COMMUNITY FOUNDATION, INC.
51
Ruth Shack, President