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HomeMy WebLinkAboutexhibitPARK PROGRAMMING AGREEMENT BETWEEN THE CITY OF MIAMI AND AMIGOS TOGETHER FOR KIDS, INC. FOR THE PROVISION OF AFTER SCHOOL PROGRAMS AND CULTURAL AND RECREATIONAL ACTIVITIES AT JOSE MARTI PARK LOCATED AT APPROXIMATELY 353 SW 4TH STREET, MIAMI, FLORIDA TABLE OF CONTENTS PARKS PROGRAMMING AGREEMENT 5 ARTICLE I RECITALS AND DEFINITIONS 6 SECTION 1,1 Recitals 6 SECTION 4.1 Definitions of Terms. 6 ARTICLE II GENERAL DESCRIPTION 8 SECTION 2.1 DESCRIPTION OF PARK.USE 8 ARTICLE III TERM 9 SECTION 3.1 AGREEMENT PERIOD 9 SECTION 3.2 OPTION TO EXTEND. 9 Section 3.3 Holding Over 10 ARTICLE VI PROVIDER'S COVENANTS SECTION 4.1 BASIC SERVICES. 10 SECTION 4.2 PROVIDER'S DUTIES AND RESPONSIBILITIES 11 SECTION 4.3 PROVIDER'S PERSONNEL 13 SECTION 4.4 FURNISHINGS AND EQUIPMENT. 13 SECTION 4.5 UTILITIES. 14 SECTION 4.6 PROMOTION OF THE CITY 15 SECTION 4.7 REGISTRATION FOR PROVIDER'S SERVICES 15 SECTION 4.8 ANNUAL PLAN. 15 SECTION 4.9 PERFORMANCE REVIEW. 16 SECTION 4.10 PROGRAM SCHEDULE 17 ARTICLE V CONSIDERATION 17 SECTION 5.1 PEE. 18 ARTICLE VI RIGHT TO CANCEL 18 2 8 SECTION 6.1 CANCELLATION BY REQUEST OF EITHER OF THE PARTIES WITHOUT CAUSE. 18 ARTICLE VII DEFAULT 18 SECTION 7.1 DEFAULT. 18 ARTICLE VIII INDEPENDENT PROVIDER AND HOLD HARMLESS PROVISIONS 19 SECTION 8.1 INDEPENDENT PROVIDER. 19 SECTION 8.2 AGENCY 19 SECTION 8.3 INDEMNIFICATION AND HOLD HARMLESS 20 ARTICLE IX DAMAGE OR LOSS TO PROVIDER'S PROPERTY 20 SECTION 9.1 RISK OF Loss 20 SECTION 9.2 NoTiCE OF DAMAGES OR INJURIES, 21 SECTION 9.3 VANDALISM AND THEFTS. 21 SECTION 9.4 THEFT AND Loss LIABILITY. 21 ARTICLE X ASSIGNMENT 21 SECTION 10.1 ASSIGNMENT 21 ARTICLE XI INSURANCE 22 SECTION I1.1 INSURANCE. 22 ARTICLE XII NOTICE 24 SECTION 12.1 NOTICE. 24 ARTICLE XIII AUDIT AND INSPECTION RIGHTS 25 SECTION 13.1 Auditi and Inspection Rights. 25 ARTICLE XIV AFFIRMATIVE ACTION 25 3 SECTION 14.1 AFFIRMATIVE ACTION, 25 SECTION 14.2 NONDISCRIMINATION 25 SECTION 14.3 MINORITY/WOMEN BUSINESS UTILIZATION. 26 SECTION 14.4 AMERICAN WITH DISABILITIES ACT 26 SECTION 14.5 SAFETY. 26 ARTICLE XV MISCELLANEOUS PROVISIONS 26 SECTION 15.1 APPLICABLE LAW. 26 SECTION 15.2 COMPLIANCE WITH LAWS. 27 SECTION 15.3 SUCCESSORS AND ASSIGNS 27 SECTION 15.4 AMENDMENTS 27 SECTION 15.5 AWARD OF AGREEMENT. 27 SECTION 15.6 CONFLICT OF INTEREST 27 SECTION 15.7 COURT COSTS AND ATTORNEYS' FEES. 28 SECTION 15.8 WAIVER OF JURY TRIAL 28 SECTION 15.9 SEVERAI3ILITY. 28 SECTION 15.10 WAIVER. 28 SECTION 15.11 CAPTION 29 SECTION 15.12 COUNTERPARTS 29 ARTICLE XVI ENTIRE AGREEMENT 29 SECTION 16.1 ENTIRE AGREEMENT. 29 Exhibit A —Premises Description _q_ PARK PROGRAMMING AGREEMENT This Park Programming Agreement (the "Agreement") is made as of this day of , 2005 (being the Effective Date defined in Section 1,2 below) between the City of Miami (hereinafter called the "City"), and Amigos Together For Kids, Inc. a non-profit corporation under the laws of the State of Florida (hereinafter called the "Provider") (hereinafter collectively referred to as the "Parties"), RECITALS WHEREAS, the City owns and/or has under its jurisdiction and control certain lands and facilities known as the Jose Marti Park located at 353 SW 4th Street, Miami, Florida, (the "Park") that may be utilized for community recreational activities; and WHEREAS, the City is interested in providing after school programs, recreational programs, cultural activities and facilities for the use and benefit of the people of various age groups, including, but not limited to, teenagers, children, elderly and families living in the neighborhoods near the Park; and WHEREAS, the Provider is interested in providing after school programs including academic instruction and cultural and recreational activities for youths at the Jose Marti Park to assist the City;; and WHEREAS, the common objective of providing such after school programs and cultural activities for youths may be best achieved through joint and concerted action of the Parties hereto and in order for the City to accomplish that common objective the City Commission on , 2005, adopted Resolution No.05- , pursuant to Section 18-86(a)(3)(c) of the Code of the City of Miami, after the required recommendations, findings and public hearing, and authorized the City Manager to enter into an agreement with Provider; and 5 WHEREAS, as a result of the aforementioned, the City agrees to enter into this Agreement with the Provider; and WHEREAS, the Provider agrees to accept this Agreement upon the terms and condition:; hereinafter set forth; NOW, THEREFORE, in consideration of the premises and mutual covenants hereinafter contained to be observed and performed, the Parties hereto do hereby covenant and agree as follows: ARTICLE I RECITALS AND DEFINITIONS 1.1 Recitals. The foregoing Recitals and all statements contained therein are hereby incorporated into and made a of this Agreement. 1.2 Definitions of Terms. For the purpose of this Agreement, the terms defined in this Article shall have the following meaning (a) "Additional Term" has the meaning ascribed to it in Section 3.2. (b) "Agreement" shall mean this written Park Programming Agreement between the City of Miami and Provider. (c) "Agreement Year" shall mean a consecutive twelve (12) month period during the Term and Additional Terms, if exercised, commencing on the Effective Date. (d) "City" means the City of Miami, a municipal corporation of the State of Florida. (e) "City's Equipment" shall mean furniture, fixtures and equipment provided by the City to Provider for its non-exclusive use at the Premises. (f) "City Manager" means the administrative head of the City's government who has been appointed by the City Commission of the City of Miami in accordance with the provisions of Section 15 of the Charter of the City of Miami, as amended, and _6- (g) who is authorized to execute this Agreement and other documents including notices required hereunder. "Community Center" shall mean the multipurpose building within the Park. (h) "Consideration" shall mean the fee that Provider pays to the City, as the case may be, for the use of the recreational areas of the Park. (i) "Effective Date" shall mean the date that this Agreement is fully executed by both Provider and City. (j) "Fees" has the meaning ascribed to it in Section 5.1, (k) "Fiscal Year" shall mean October 15' to September 30t, (I) "Option Request" has the meaning ascribed to it in Section 3.2. (m) "Other Activities" shall mean all the activities for all age groups that will use the (n) (0) Park. "Other Programs" shall mean programs and activities provided by the City or by Other Providers to provide recreational, cultural, educational, and other parks programs and facilities to all age groups within the neighborhood and City. This may include programs for area youths within the age range serviced by the Provider, "Other Providers" shall mean other organizations licensed by the City or with which the City has agreements for Other Programs to conduct after school, educational, recreational, cultural, and other parks programs and activities for individuals or groups of all ages at the Park. (p) "Park" shall mean the City -owned property with improvements located at 353 SW 4th Street, Miami, Florida, commonly known as the Jose Marti Park. (q) "Park Manager" shall be the City's on -site manager at the Park authorized by the City to coordinate all the activities at the Park including, but not limited to, those provided by the Provider at the Premises. -7- (r) "Park Director" shall be the Director of the Parks and Recreation Department authorized by the City to administer this Agreement and coordinate the activities of the Provider at the Premises. (s) "Permitted Uses" shall include the provision of after school programs, academic instruction and cultural and recreational activities for youths. (t) "Premises" shall mean the Community Center and outdoor areas at the Park as depicted in Exhibit "A" attached hereto and made a part hereof, together with certain furniture, fixtures and equipment. (u) "Provider" has the meaning ascribed to it in the opening paragraph of this Agreement, together with its successors and/or assigns. (v) "Provider's Services" shall mean the after school programs to assist the children of the community and parents with academic success in school but mainly to the children ages 6 to 12, provide the families with opportunities to enhance the learning process mainly for children from the ls1 grade to the 6th grade levels through cultural and recreational activities, and to actively engage and embrace the children of the families in the community during after school hours. (w) "Term" has the meaning ascribed to it in Section 3.1. (x) "Termination Date" shall mean the day on which this Agreement expires or such earlier date as may be specified in accordance with the provisions of this Agreement. ARTICLE II GENERAL DESCRIPTION Section 2.1 Description of Park Use. The City hereby agrees to engage the Provider in a non-exclusive use of the Park to provide after school programs, academic instruction and cultural activities to the youths of the surrounding community of the Park and the City of Miami. The Provider is hereby permitted to use the Premises, in common with the City and Other Providers for the provision of these - 8 - programs and activities at the Park. Under the direction of the Park Manager and Park Director, the Provider acknowledges that the City and Other Providers of Other Programs and activities at the Park will have joint and/or separate use of other areas of the Park. The City will make the final determination of the use and hours of the various activities at the Park and will attempt to coordinate the schedules of the Provider and Other Providers so that each provider will have space available to provide their services. ARTICLE III TERM Section 3.1 Agreement Period. The terms of the Agreement (the "Term") shall commence on the Effective Date, being May , 2005. The Agreement shall continue thereafter for three (3) consecutive years ending on May 2008, unless terminated sooner as provided herein. Section 3.2 Option to Extend. Upon the mutual agreement of the parties hereto, this Agreement may be extended for up to two (2) consecutive additional three (3) year periods. Each extension (each an "Additional Term") shall be upon the same terms and conditions contained herein, provided that no default, as defined in the Article 7.1 of this Agreement entitled "Default", shall exist at the time of notice (as described below) or thereafter exists. If the Provider elects to exercise its option for an Additional Term, the Provider shall deliver written notice of its intent to the City Manager no less than six (6) months in advance of expiration of the Term, but no earlier than nine (9) months prior to the expiration of the Term (the "Option Request"). Upon receipt of the Option Request, the City shall conduct an audit of the Provider's compliance with the provisions of this Agreement and the success of the program. Such audit may include, in the City Manager's sole discretion, a review of the Provider's income statements and other financial records for the previous years of operation. Based upon the findings of the audit, the City Manager shall determine, in his sole discretion, whether it is appropriate for the City to renegotiate and revise the financial terms of this Agreement for any Additional Term. The City shall notify the Provider within sixty (60) days from receipt of the Option Request of the City's approval or denial of the Provider's Option Request. The City's approval in this regard may be withheld in the City Manager's sole discretion. The Term and any Additional Term once exercised shall be collectively referred to as the "Term". Any first Additional Term shall begin on May _, 2008 and end on May __, 2011; any final Additional Tenn shall begin on May , 2011 and end on May , 2014. Any further extension of this Agreement beyond May __, 2014 shall require approval of the City Commission, Section 3.3 Holding Over. If Provider shall continue using the Premises after the expiration of this Agreement, with the expressed or implied consent of the City, the use granted under this Agreement shall become one from month -to -month terminable by either party on thirty (30) days prior written notice. Such use shall be subject to all terms, conditions, provisions and obligations of this Agreement. The provisions of this Section shall be in addition to any liability Provider may have to the City in respect of its holdover. ARTICLE IV PROVIDER'S COVENANTS Section 4.1 Basic Services. The Provider shall utilize the Premises for the Permitted Uses. The Provider may request written consent from the City Manager to use the Premises for any other use, but shall not be authorized to use the Premises for that use until the Provider has received the written consent of the City Manager, which consent may be conditioned or withheld in the City Manager's sole discretion, The Provider shall ensure that the Premises and all the Provider's programs and activities generated thereon, will be available to assist children and parents in achieving academic success of children in school, but mainly to the children ages 6 to 12, and will strive to provide the youths and their families in the surrounding communities and the City with opportunities to enhance the learning process through cultural and recreational activities mainly for youths from - 10- 1 the Pi grade to 6th grade levels. The Provider acknowledges and agrees that it will have the responsibility to fund all of its programs and activities. Section 4.2 Provider's Duties and Responsibilities. During the Term, the Provider, at its sole cost and expense, shall perform and oversee all tasks related to the provision of educational and cultural programs at the Park for the residents of the nearby community and the City of Miami. (a) The Provider, at its sole cost and expense, shall: (i) be responsible for the provision of materials, installation, repair, maintenance and replacement of all equipment that is property of Provider; (ii) upon conclusion of its activities, straighten up the Premises and secure any movable equipment in the designated storage areas; (iii) be responsible for the provision of daily snacks for its youth program participants and leave the Premises in a neat condition upon conclusion of the same; (iv) provide necessary staff to supervise Provider's after school programs and activities during Provider's operating hours and remain at the Premises until the children have been dismissed. Provider's days and hours of operation are generally Monday through Friday from 2:30 p.m. — 5:00 p.m. The after school program will substantially coincide with the Miami Dade County Public School Calendar; (v) assume all operating costs, except as provided herein, retain all receipts and be responsible for payment of all labor, applicable insurance, operating supplies and all other general administrative expenses for the staff of Provider; _1} (vi) at all times during the Term continuously conduct operations in the Premises in accordance with the terms of this Agreement and its Annual Plan approved by the Parks Director, except where the Premises are rendered untenantable by reason of fire or other casualty; be responsible for compliance with any applicable laws to operate the business; (viii) provide its services and programs at no cost to the user or the City. In the event the Provider elects to charge any fee or other charge for Provider's services and programs, Provider shall submit a schedule of its proposed fees and charges for Provider's Services (at least ninety (90) days prior to Provider's anticipated implementation date for such proposed schedule of fees and charges for the particular services and programs) to the City Manager for prior written approval, which approval may be withheld or conditioned in his sole discretion, including the right to require the Provider to pay additional fees to the City. (b) The Provider, at its sole cost and expense, shall be responsible for scheduling all activities conducted in the Premises through the Park Manager; however, the Park Manager shall use his best efforts to ensure that the Provider is free to provide its services at the Park and on the Premises from 2:30 pm until 5:00 pm from Monday through Friday and strive to ensure that there are no scheduling conflicts with uses of the Premises by Other Providers. (c) The Provider agrees to comply with all rules and regulations that may be promulgated by the Parks Director for the use and operation of the Park inclusive of the Premises, as the same may be amended from time to time, as necessary, in the Park Director's sole opinion. (d) The Provider is authorized to sponsor additional programs with approved Other Providers for the provision of educational, cultural, recreational, and parks programs and activities at the Park as long as the additional programs are in compliance with the Permitted Uses defined under Section 1.1 (s) of the - 12- Agreement. Provider is responsible to include the sponsorship of these additional programs with Other Providers under the scheduling of activities to be submitted to the Park Manager. (e) Provider shall, at its sole cost and expense, pay all federal state and local taxes, which may be assessed against its operations, equipment, merchandise or use of the Park during the term of the Agreement. Section 4.3 Provider's Personnel, The Provider shall be required to furnish during its operating hours necessary staff experienced in the operation and control of the type of operations to be performed hereunder, delegated with sufficient authority and responsibility to insure proper use and operation of the Premises in compliance with this Agreement. The Provider shall require the staff to remain on site and in charge during scheduled activities. Designated staff must be introduced to the Park Manager prior to commencement of this Agreement as well any substitutes before commencement of any scheduled activities at the Premises. The Provider shall employ, train, pay, supervise and discharge all employees necessary for the operation of its programs. All such persons shall be the employees of the Provider and every person performing services in connection with this Agreement, including a subcontractor or employee of Provider, or any agent or employee of the Provider hired by the Provider, shall be acting solely on behalf of the Provider. The City shall not be liable for their background, compensation, or for the consequences of any act or omission on the part of any of them. Section 4.4 Furnishings and Equipment. The City has title to the building and the furnishings and fixtures attached to it. The City's Equipment shall be available for the use of Provider, on a non-exclusive basis, free of any charge but Provider shall coordinate its use through the Park Manager. The Provider hereby - 13 - accepts the use of the City's Equipment "as is" and "where is". The Provider shall not remove any of the City's Equipment from the Community Center without the prior written consent of the Park Manager. The Provider shall replace or repair, at its sole cost and expense, any of the City's Equipment, fixtures or furnishings lost, stolen, damaged or destroyed due to acts or omissions of the Provider, participants of its programs or its agents or employees, normal wear and tear excepted. Section 4.5 Utilities. The City shall, at its sole cost and expense, furnish air conditioning, heat, water, lights, electric current, sewage, and garbage disposal service to the Premises, as appropriate. The Provider must abide by the rules, regulations, schedules and practices of the City in the administration of these services. The City reserves the right to interrupt, curtail or suspend the provision of any utility service, including but not limited to, heating, ventilating and air conditioning systems and equipment serving the Premises, to which Provider may be entitled hereunder when necessary by reason of accident or emergency, or for repairs, alterations or improvements in the judgment of the City desirable or necessary to be made or due to difficulty in obtaining supplies or labor or for any other cause beyond the reasonable control of the City. The work of such repairs, alterations or improvements shall be prosecuted with reasonable diligence. The City shall in no respect be liable for any failure of the utility companies or governmental authorities to supply utility service to Provider or for any limitation of supply resulting from governmental orders or directives. No diminution or abatement of fees or other charges, nor damages, shall be claimed by Provider by reason of the City's or other individual's interruption, curtailment or suspension of a utility service, nor shall this Agreement or any of Provider's obligations hereunder be affected or reduced thereby. 14 - Section 4.6 Promotion of the Ci The Provider acknowledges the benefits afforded to it by the City's providing the Park for use of Provider's operations and shall provide recognition of the City of Miami for its support of Provider's Services and programs, in a manner reasonably satisfactory to the City Manager or designee, in all its marketing, advertising and promotional materials including those materials used for special events. Section 4.7 Registration for Provider's Services. Provider shall create a method for registering persons for its services. Provider shall have materials available at the Community Center for on -site registration and provide personnel for such purposes. Provider shall be responsible to coordinate with the Park Manager the use of the Community Center for on -site registration. Persons living in the community, particularly children ages 6 through 12 in the 15r through 6th grade levels and their parents shall be able to register for Provider's Services. Provider agrees to market the availability of Provider's Services in the community prior to the registration for its services at the Premises. Provider recognizes that the City's goal is to reach persons living in the community to have an opportunity to access the services. Provider is committed to making every effort to assist the City in meeting its goal. In the event that Provider receives notice from a registered sexual offender that he/she is enrolling or requesting to participate in Provider's Services at the Park, Provider agrees to notify the Parks Director and Park Manager of such occurrence. The Provider shall not have any liability in the event the Provider does not receive notice of such circumstances. Section 4.8 Annual Plan, Prior to the Effective Date of this Agreement for the first year of the initial Term, and on each June 15` thereafter during the Term and any Additional Term hereof, Provider shall prepare and present, in a form acceptable to the Parks Director, the following items for the upcoming Fiscal Year for Provider's operations at the Premises, for the review and approval of the Parks Director (hereinafter collectively referred to as the "Annual Plan"): 15 (f) a description of Provider's Services; (g) a schedule of Provider's Services; (h) a description of the general marketing strategy which Provider intends to follow or implement, as the case may be, to optimize the use of Provider's Services to benefit the youth of the community; (i) Provider's course offering schedule on a term —by -term basis; and (j) The names and contact information of Provider's management representatives and staff providing services at the Premises. (k) If pursuant to Section 4.2(a)(viii) of this Agreement, the Provider has requested and the City Manager has approved a schedule of fees and charges for any of Provider's Services, then Provider shall also include in its Annual Plan its costs, fees and charges for those particular services and programs for which Provider is charging a fee or other charge. Section 4.9 Performance Review. Provider shall transmit to the Parks Director in writing, in a format mutually acceptable to the Provider and Parks Director, an annual report regarding current activities, number of participants served, participants' resident in the community, and progress of Provider's activities, Provider shall submit this report to the Parks Director simultaneously with the Annual Plan on each June 15` during the term and any additional term hereof, Provider shall submit to the Parks Director such additional reports as may be reasonably requested regarding Provider's activities at the Premises by the Parks Director. Provider shall prepare, in writing, in a form acceptable to the Parks Director, any reports or documentation that may be required by Federal, State or local directives. At the request of the Parks Director, Provider shall transmit to the Parks Director written statements of Provider's official policy or specified issues relating to Provider's activities, Provider may use its best efforts to make such -16- reasonable changes to its programs and operations, in a timely manner, as may be requested by the Parks Director as long as such changes do not materially increase Provider's costs. The City may carry out monitoring and evaluation activities, including visits and observations by the City staff. Provider shall ensure the cooperation of its employees in such efforts. Section 4.10 Program Schedule The Provider shall prepare, at its sole cost and expense, and shall submit to the Park Manager, for his review and approval; a proposed schedule of the dates and times the Provider requires use of the Premises for its programs. The Provider shall submit these schedules to the Park Manager on or before the dates set forth below for the respective periods: Operating Period Schedule Due Date Aug 1 -- Dec 31 11111111.1111. 12112=111■ Dec 1 1111111111111111111 Upon receipt of the schedule, the Park Manager shall review the proposed schedule of the Provider and Other Providers and shall prepare a calendar listing the dates and times each Provider has use of the various areas of the Park. In the event of a conflict in scheduling use of the Park, the Park Manager shall review the matter in an attempt to arrange a compromise on use; however, in the event a compromise cannot be reached, the conflict shall be presented to the Parks Director for a final decision on the resolution of the conflict. - 17- ARTICLE V CONSIDERATION Section 5.1 Fee. The City owns, and/or has under its jurisdiction, and controls the Park, which may be utilized for community cultural, recreational, educational and other park activities. Commencing on the Effective Date of this Agreement, and on the first of each month thereafter during the term of the Agreement, Provider shall pay to the City a monthly a fee in the amount of One Dollar and No Cents ($1.00), plus State of Florida Use Tax if applicable. The fee shall be due on the first day of each month without notice or demand. Provider shall be responsible for any cost associated with its programs, included but not limited to, security, equipment, and insurance during its operating hours. ARTICLE VI RIGHT TO CANCEL Section 6,1 Cancellation by request of either of the parties without cause. Either party may cancel this Agreement at any time without cause with sixty (60) days prior written notice to the non -canceling party. ARTICLE VII DEFAULT Section 7,1 Default. If Provider fails to comply with any term or condition of this Agreement, or fails to perforrn any of its obligations hereunder, then Provider shall be in default. Upon the occurrence of a default hereunder the City, in addition to all remedies available to it by law, may after thirty (30) days written notice given to Provider by the City Manager within which to cease such - 18 - violation or correct such deficiencies, and upon failure of Provider to do so after such written notice within said thirty (30) day period, this Agreement shall be automatically canceled without the need for further action by the City. Provider understands and agrees that termination of this Agreement under this section shall not release Provider from any obligation accruing prior to the effective date of termination. ARTICLE VIII INDEPENDENT PROVIDER AND HOLD HARMLESS PROVISIONS Section 8.1 Independent Provider. The Provider shall operate and supervise its programs and activities at the Premises, as an independent contractor and not as an employee of the City, for the purpose of providing, on a nonexclusive basis, the Permitted Uses. The sale, distribution and/or consumption of alcoholic beverages at the Park and/or the Premises are prohibited unless expressly authorized by the Parks Director in connection with a special event, The use, sale and distribution of illegal substances at the Park are prohibited. The Provider acknowledges entering into this Agreement as an independent contractor and that the Provider shall therefore be responsible for the deposit and payment of any Federal income taxes, F1CA, unemployment taxes or any similar fees or taxes that become due, and shall be responsible for the collection and payment of all withholdings, contributions and payroll taxes relating to services or those employees of the Provider. Provider and its employees and agents shall be deemed to be independent contractors, and not agents, employees or representatives of the City and shall not attain rights or benefits under the Civil Service or Pension Ordinances of the City nor any rights generally afforded classified or unclassified employees; further they shall not be entitled to the Florida Workers Compensation benefits as employees of the City. _19- Section 8.2 Agency. Nothing herein shall imply or shall be deemed to imply an agency relationship between the City and Provider. Section 8.3 Indemnification and Hold Harmless. Provider shall indemnify, defend and hold harmless the City and its officials, employees and agents (collectively referred to as "lndemnitees") 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 the services contemplated by 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 Provider or its employees, agents or subcontractors (collectively referred to as "Provider") or (ii) the failure of the Provider to comply with any of the paragraphs herein or the failure of the Provider 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. Provider expressly agrees to indemnify and hold harmless the lndemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Provider, or any of its subcontractors, as provided above, for which the Provider's liability to such employee or former employee would otherwise be limited to payments under state workers' compensation or similar laws. Provider shall not indemnify, defend and hold harmless the Indemnitees from and against any Liabilities, which are or alleged to be directly or indirectly caused solely by the lndemnitees. - 20 - ARTICLE IX DAMAGE OR LOSS TO PROVIDER' PROPERTY SECTION 9.1 Risk of Loss. City shall not be liable for injury or damage to th property or merchandise of the Provider or its employees, invitees, patrons occurring in or about the Premises caused by or resulting from anyone or any peril whatsoever which may affect the Premises, including, without limitation, fire, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Premises, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Premises, or from hurricane or any act of God or any act f negligence of any user of the facilities or occupants of the Premises or any person whomsoever, whether such damage or injury results from conditions arising upon the Premises or upon other portions of the Premises or from other sources. Section 9.2 Notice of Damages or Injuries. The Provider shall give City prompt written notice occurring at the Premises and shall report any such fire, dama Park Manager immediately upon discovery. Section 9.3 Vandalism and Thefts. Where vandalism or theft occurs to Provider's equipme of any fire, damage or injury e or injury at the Premises to the t or operation, it shall be the sole responsibility and liability of Provider to insure, repair or replce damaged or stolen equipment at Provider's expense within a reasonable period of time in order for them to continue to provide the services contemplated by this Agreement. All vandalis Manager immediately upon discovery. -21 - shall be reported to the Park Section 9.4 Theft and Loss Liability. City will not be responsible for any of Provider's losses or thefts, and any such losses must be borne solely by the Provider out of its own funds they may not be used to diminish or be absorbed by payment due the City. ARTICLE X ASSIGNMENT Section 10.1 Assignment. This Agreement and the rights of the Provider and obligations hereunder may not be delegated or assigned by either party without the express written consent of the other party which consent may be conditioned or withheld in the their sole discretion. ARTICLE XI INSURANCE Section 11.1 Insurance. The Provider, at its sole cost and expense, shall obtain and maintain in full force and effect at all times throughout the Term and any Additional Term of this Agreement and through any periods of extensions, the following insurance: A. Commercial General Liability insurance on a comprehensive general liability coverage form, or its equivalent, including contractual liability, products and completed operations with a limit no less than $1,000,000, personal and advertisement injury with a limit of no less than $1,000,000, personal injury and premises and operations coverage against all claims, demands or actions, bodily injury, personal injury, death or property damage occurring in the Premises with such limits as may be reasonably requested by the City from time to time but not less than $1,000,000 per occurrence for bodily injury and property damage. The City shall be named as Additional Insured on the policy or policies of insurance. - 22 - Notwithstanding the above, in the event any injury or damage to the Park is caused by the negligence or intentional acts of the City, or any Other Provider, their employees, agents, contractors, licensees or invitees, the Provider shall not be responsible for such injury, damage, repair andfor any replacement reuired. B. Automobile liability insurance covering owned and hired vehicles used in conjunction with opera The policy or policies of insurance shall contain sue requested by the City from time to time but not less than property damage. The requirements of this provision ma a written statement that no automobiles are used to con. named as additional insured on this policy. all owned, borrowed or non - ions covered by this agreement. limits as may be reasonably $500,000 for bodily injury and be waived upon submission of uct business. The City shall be C. Worker's Compensation in the form and mounts required by Florida law. D. Professional Liability with a limit of no less than $1,000,000 per occurrence, General Aggregate Limit of $1,000,000 and ' deductible not to exceed 10%. E. The City's Director of Risk Manageme t has the right to amend the insurance requirements by the issuance of a notice in writing to the Provider. The Provider shall provide any other insurance or security re onably required by the Director of Risk Management. F. The policy or policies of insurance required shall be so written that the policy or policies may not be canceled or materially changed without thirty (30) days advance written notice to the City. Said notice should b I delivered to the City of Miami, Department of Risk Management, 444 SW 2nd Avenue, :h Floor, Miami, FL 33130 with copy to City of Miami, Department of Economic Develo ment, 444 SW 2nd Avenue, 3r1 Floor, Miami, FL 33130. G. A current Evidence of Insurance and Policy of Insurance evidencing the aforesaid required insurance coverage shall be suppled to the Department of Risk Management of the City at the commencement of the to of this Agreement and a new Evidence and Policy shall be supplied at least twenty (2 ) days prior to the expiration of each such policy. Insurance policies required herein shall be issued by companies authorized to do business under the laws of the Stat of Florida, with the following qualifications as to management and financial strength: he company should be rated "A" - 23 - as to management, and no less than class "V" as to finarcial strength, in accordance with the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and/or certifi review and verification by Risk Management prior to in documentation of insurance by the City or by any of its less coverage than required, does not constitute a waive fulfill the insurance requirements herein. sates of insurance are subject to Durance approval. Receipt of any representatives, which indicates r of the Provider's obligation to The Provider's failure to procure insurance shall in no way release the Provider from its obligations and responsibilities as provided herein. ARTICLE XII NOTICE Section 12.1 Notice. All notices or other communications which shall or nay be given pursuant to this Agreement shall be in writing and shall be delivered by personal service or by certified mail addressed to the Parties at their respective addresses indicate below or as the same may be changed in writing from time to time. Such notice shall be de med given on the day on which personally served, or if by certified mail, on the fifth day after eing posted or the date of actual receipt, whichever is earlier. NOTICE TO THE CITY: City of Miami City Manager 3500 Pan Arnerican Drive Miami, FL 33133 WITH COPY TO: City of Miami City Attorney 444 SW 2nd Avenue, Suite 945 Miami, FL 33130 - 24 - NOTICE TO THE PROVIDER: Amigos To ether for Kids, Inc. 801 Southw st 3rd Avenue, Suite 300 Miami, Flor'da 33130 City of Miami Department of Economic Development 444 SW 2nd Avenue, 3rd Floor Miami, FL 33130 City of Miami Department of Parks and Recreation 444 SW 2nd Avenue, 8e' Floor Miami, FL 33130 ARTICLE XIII AUDIT AND INSPECTION RIGHTS 13.1 The City may, at reasonable times, and for a period of up to three (3) years following the expiration date of this Agreement, audit, or cause to be audited, those books and records of Provider, which are related to Provider's performance under this Agreement. Provider agrees to maintain all such books and records at its principal place of business for a period of three (3) years after the expiration of this Agreement. The City may, at reasonable times during the term hereof, inspect the Premises, as the City deems reasonably necessary, to determine whether the Provider's Services required to be provided under this Agreement conform to the terms hereof, if applicable. ARTICLE XIV AFFIRMATIVE ACTION Section 14.1 Affirmative Action. The Provider may have in place an Affirmative Action/Equal Employment Opportunity Policy and shall institute a plan for its achievement, which will require that action be taken to provide equal opportunity in hiring and promoting for women, minorities, individuals with disabilities, and veterans, Such plan will include a set of positive measures which will be taken to insure nondiscrimination in the work place as it relates to hiring, firing, training and promotion. In lieu of such a policy/plan, the Provider shall submit a Statement of Assurance indicating that their business is in compliance with all relevant Civil Rights laws and regulations. - 25 - I Section 14.2 Nondiscrimination. The Provider agrees that it will not discriminate against any person based upon race, religion, color, sex, ancestry, age, national origin, disability or marital status, in the use of the Property and improvements thereof. It is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, the City shall have the right to terminate this Agreement. Section 14.3 Minority/Women Business Utilization. The Provider may use its best efforts to purchase/contract fifty-one (51 %) of its annual goods and services requirements from Hispanic, Black and Women businesses/Providers registered/certified with the City's Office of Minority/Women Business Affairs. Such lists are available to the Provider at the City's Office of Minority/Women Business Affairs. Section 14A American with Disabilities Act. Provider shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of utilizing the Premises including Titles 1 and II of the ADA (regarding nondiscrimination on the basis of disability) and all applicable regulations, guidelines and standards. Additionally, Provider shall take affirmative steps to ensure nondiscrimination in employment of disabled persons. Section 14.5 Safety. Provider will allow City inspectors, agents or representatives the ability to monitor its compliance with safety precautions as required by federal, state or local laws, rules, regulations and ordinances. By performing these inspections the City, its agents, or representatives are not assuming any liability by virtue of these laws, rules, regulations and ordinances. Provider shall have no recourse against the City, its officials, employees, directors, agents or representatives from the occurrence, non-occurrence or result of such inspection(s). Upon occupancy of the Premises, Provider shall contact the Risk Management Department at (305) 416-1700 to schedule the inspection(s). - 26 - ARTICLE XV MISCELLANEOUS PROVISIONS Section 15.1 Applicable Law. This Agreement shall be governed by and constructed in accordance with the laws of the State of Florida applicable to agreements made and to be performed entirely within the State. Section 15.2 Compliance with Laws. Provider shall comply with all applicable federal, state and local laws, regulations, orders, ordinances and codes pertaining to its performance under this Agreement_ Section 15.3 Successors and Assigns. This Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors and assigns. Section 15.4 Amendments. The City and Provider by mutual agreement shall have the right but not the obligation to amend this Agreement in writing. The City Manager is authorized to execute any amendments to the Agreement and shall be effective only when signed by City Manager and Provider and shall be incorporated as a part of this Agreement. Section 15.5 Award of Agreement. Provider 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. - 27 - Section 15.6 Conflict of Interest. Provider is aware of the conflict of interest laws as set forth in Section 2-611 of the Code of the City of Miami, Florida, as amended, and agrees that it will comply in all respects with the terms thereof. Section 15.7 Court Costs and Attorneys' Fees. Venue for any legal proceedings shall be in Miami —Dade County, Florida. In the event that it becomes necessary for City to institute legal proceedings to enforce the provisions of this Agreement, each party shall pay its own court costs and attorney(s)' fees. Section 15.8 Waiver of Jury Trial. The parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the City and Provider entering into the subject transaction. Section 15.9 Severability. If any provision of the Agreement, or any paragraph, sentence, clause, phrase, or word, or the application thereof, is held invalid, the remainder of the Agreement shall be construed as if such invalid part were never included herein and the Agreement shall be and remain valid and enforceable to the fullest extent permitted by law. Section 15.10 Waiver. No waiver of any provision hereof shall be deemed to have been made unless such waiver is in writing and signed by City or Provider, The failure of either party to insist upon the -28_ 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 sarne shall continue and remain in full force and effect. Section 15.11 Caption. The captions contained in this Agreement are inserted only as a natter of convenience and for reference and in no way define, limit or prescribe the scope of this Agreement or the intent of any provisions thereof. Section 15.12 Counterparts. This Agreement may be executed simultaneously in several counterparts, each of which will be an original, but all of which together will constitute one and the same instrument. ARTICLE XVI ENTIRE AGREEMENT Section 16.1 Entire Agreement. This Agreement represents the entire Agreement between the City and the Provider with respect to the subject matter hereof, and all prior Agreements between the parties, written or oral, shall be of no further force and effect. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. - 29 - ATTEST: THE CITY OF MIAMI, a municipal corporation oldie State of Florida By: By: Priscilla A. Thompson City Clerk Joe Arriola City Manager APPROVED AS TO FORM APPROVED AS TO INSURANCE AND CORRECTNESS REQUIREMENTS By: By: Jorge L. Fernandez Dania Carrillo, Director City Attorney Risk Management Department PROVIDER Amigos Together For Kids, Inc. A not -for -profit corporation WITNESS: By: By: Signature Chairman Corporate Secretary Print Name By: Signature Print Name -30- Exhibit A Premises Description - 31 - MASTER PLAN EXHIBIT A 11,J JOSS MARTI PARK LA PEQUENA HABANA COMMI'"STY DEVELOPMENT TARGET AR.EA L 1 0 50 /00 150 CITY OF MIAMI PLANNING. E UILDJNG AND ZONING DEP.%DT'MEUT HEIGN OCIRHOIN) PLANNING LEC:K N