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HomeMy WebLinkAboutExhibitAGREEMENT BETWEEN THE CITY OF MIAMl AND MIAMI RIVER FUND, INC., THE FINANCIAL AGENCY FOR THE MIAMI RIVER COMMISSION This Agreement (this "Agreement") entered into this day of , 2007 (but effective as of October 1, 2004 being the "Effective Date"), by and between the CITY OF MIAMI, a municipal corporation of the State of Florida, whose address is 444 S.W. 2nd Avenue, 10th Floor, Miami, Florida 33130 (hereinafter referred to as the "CITY" or "GRANTOR"), and MIAMI RIVER FUND, INC., a Florida not -for -profit corporation whose address is 1407 NW 7 ST, Suite D, Miami, Florida 33125, acting as the financial agency for the Miami River Commission (hereinafter referred to as "GRANTEE"). RECITALS WHEREAS, Section 18-298 of the Code of the City of Miami, as amended (the "Code") permits the CITY's Department of Public Works to fund the City's annual share of funding support for GRANTEE from the storm water utility trust fund; and WHEREAS, on May 27, 2004, the City Commission adopted Resolution No. Q4- 0343 authorizing the City Manager to execute an Agreement to continue providing educational programs relating to the Miami River for a two-year period ending on September 30, 2004 and allocating funds in an annual amount not to exceed $25,000 therefore; and WHEREAS, since that time, the City has not yet provided funding for the fiscal years from October 1, 2004 to September 30, 2005, from October 1, 2005 to September 30, 2006, and from October I, 2006 to September 30, 2007; and WHEREAS, on , 2007, the City Commission adopted Resolution No. 07- to authorize the City Manager to execute an Agreement Revised Agreement Draft 1 under the terms and conditions set forth below with GRANTEE to continue providing educational programs relating to the Miami River for a three (3) year term for the period which began on October 1, 2004 and ending on September 30, 2007 and allocated funds therefore in an annual amount not to exceed $25,000 from the C1TY's General Fund — Non -Departmental Accounts in order to fund the City's share for fiscal years 2005, 2006 and 2007 in support of GRANTEE, for a total amount not to exceed $75,000; NOW, THEREFORE, the CITY and GRANTEE do mutually agree as follows: 1. TERM The term of this Agreement shall cover three (3) fiscal years (FY 2004 2005, FY 2005-2006 and FY 2006-2007) commencing upon October 1, 2004 as the Effective Date and ending on September 30, 2007, unless terminated sooner as provided herein below. 2. CITY AUTHORIZATION For the purpose of this Agreement, the City of Miami Department of Public Works (hereinafter "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 for any modification hereof, except as otherwise provided by this Agreement. 3. GRANTEE USES OF CITY'S SHARE OF FUNDING (a) GRANTEE shall use the annual grant of $25,000 received from CITY to offset operational costs incurred during the term of this Agreement for City's fair share of administrative costs of the Committee, and to continue providing educational programs related to the Miami River. Revised Agreement Draft 2 (b) Except as otherwise stated in this Agreement, the funds appropriated herein will be expended for GRANTEE staff, clerical, travel, supplies and contingencies. (c) Except as otherwise provide below for the 2005 and 2006 fiscal years, GRANTEE shall submit to the 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. For the fiscal years from October 1, 2004 to September 30, 2005 and from October 1, 2005 to September 30, 2006, Grantee shall submit coordinate with the DEPARTMENT to provide such update reports and minutes of public meetings as are necessary for the DEPARTMENT'S monitoring purposes within thirty (30) days of the execution of this Agreement. (d) GRANTEE shall submit to DEPARTMENT an independent audit by a Certified Public Accountant, which must include the expression of an opinion on the financial statements and accounts of funds for fiscal years 2003-2004, 2004-2005, 2005- 2006, and 2006-2007 as more particularly described in Section 11( c) below. 4. GRANT (a) The CITY shall pay the GRANTEE, as maximum compensation for the services outlined pursuant to Paragraph 3 hereof, $25,000 for each fiscal year identified in Paragraph 1 hereof, for a total not to exceed $75,000 throughout the term of this Agreement. The City shall not be liable for any cost, fee, reimbursement, expense, or other liability beyond the stated maximum amount of Twenty -Five Thousand Dollars and Revised Agreement Draft 3 No Cents ($25,000.00) for each fiscal year identified in Paragraph 1 hereof, for a total not to exceed Seventy -Five Thousand Dollars and No Cents ($75,000.00) throughout the term of this Agreement., which will be the upper limit of liability of the City's share of funding to GRANTEE, its subcontractors, agents, or representatives, and inclusive of costs, reimbursable expenses, if any, and any other approved expenditures relating to GRANTEE.. (b) Except for the update funding being paid in 2007 by City for fiscal years 2004-2005 and 2005-2006, 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 indicate that exact amount paid by other funding sources equaling the total of the invoice. All invoices for travel and other expenses shall be submitted in accordance with Section 112.061, Florida Statutes, and shall be accompanied by sufficient supporting documentation and contain sufficient details, as may be reasonably required by the City, to allow a proper audit of GRANTEE's travel and other expenses, should the City require one to be performed. (c) CITY and GRANTEE agree that the funds granted herein may not be used to reimburse expenses incurred prior to October 1, 2004 for the 2004-2005 fiscal year, prior to October 1, 2005 for the 2005-2006 fiscal year, and prior to October 1, 2006 for the 2006-2007 fiscal year under this Agreement. (d) CITY shall have the right to review, inspect and audit the time Revised Agreement Draft 4 records, invoices, travel and other expenses, and related records, receipts and documentation of GRANTEE pertaining to any payments by CITY. (e) GRANTEE agrees and understands that (i) any and all subcontractors providing services to GRANTEE related to this Agreement shall be paid through GRANTEE and not paid directly by the City, and (ii) any and all liabilities regarding payment to or use of subcontractors for any of the services related to this Agreement shall be borne solely by GRANTEE. 5. 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 and agreed 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. 6. GENERAL CONDITIONS (a) 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 Revised Agreement Draft 5 on which personally served; or if my mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. GRANTEE Miami River Fund, Inc. 1407 NW 7 ST, Suite D Miami, FL 33125 (b) With a copy to: CITY OF MIAMI Director of Public Works 444 SW 2nd Avenue, 8th Floor Miami, FL 33130 CITY OF MIAMI City Manager 444 S.W. 2"d Avenue, 10th Floor Miami, FL 33130 City Attorney, City of Miami 444 S.W. 2"d Avenue, 9th Floor Miami, FL 33130 Titles and paragraph headings are for convenience reference and are not a part of this Agreement. (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. Revised Agreement Draft 6 7. 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. 8. 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. 9. CONSTRUCTION OF AGREEMENT, VENUE AND JURISDICTION This Agreement shall be construed and enforced according to the laws of the State of Florida and venue shall be in Miami -Dade County. Venue in any proceedings 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 any rights to a jury trial. 10. SUCCESSORS AND ASSIGNS This Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors and assigns. Revised Agreement Draft 7 11. MONITORING, INSPECTION AND AUDIT RIGHTS (a) CITY reserves the rights to monitor, to inspect and to 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 $15,000 to $25,000. (c) All GRANTEES receiving cash of $25,000 or more agree to submit to the DEPARTMENT an independent audit, by a Certified Public Accountant. 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. 12. INDEMNIFICATION GRANTEE shall indemnify 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 lndemnitees shall survive the termination of this Agreement. Revised Agreement Draft 8 GRANTEE understands and agrees that any and all liabilities regarding the use of any subcontractor for services related to this Agreement shall be borne solely by GRANTEE throughout the duration of this Agreement and that this provision shall survive the termination of this Agreement. 13. NO CONFLICTS 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 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 Iaws. 14. 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. 15. DEFAULT PROVISION Revised Agreement Draft 9 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. lb. NON-DISCRIMINATION GRANTEE agrees that it shall not discriminate as to race, sex, color, religion, age, marital status, national origin, disability, or sexual orientation in connection with its performance under this Agreement. GRANTEE further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, disability, sexual orientation, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 17. MINORITY PROCUREMENT COMPLIANCE GRANTEE acknowledges that it has been furnished a copy of Ordinance No. 10538, the Minority Procurement Ordinance of the CITY, as amended, and agrees to comply with all applicable substantive and procedural provisions therein, including any amendments thereto. 18. WAIVER No waiver of any provision hereof shall be deemed to have been made Revised Agreement Draft 10 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. 19. 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. 20. 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 and observe all applicable federal, state, and local laws rules, regulations, codes and ordinances, as they may be amended from time to time. 21. 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. (b) GRANTEE shall provide protection to the CITY to the extent of the indemnification, pursuant to Section 12 hereof. (c) GRANTEE shall correct any insurance certificates as requested by Revised Agreement Draft 11 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 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 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 Risk Management Director the duration of this Agreement. (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 extensions 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 Revised Agreement Draft 12 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. 22. 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 set forth the rights, duties and obligations each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. 23. 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, Revised Agreement Drafl 13 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) With the exception of full time staff providing intergovernmental coordination on Miami River related projects, no activity under this Agreement shall involve political activities. GRANTEE possesses legal authority to enter into this Agreement; a Resolution, Motion, or similar action, an original of which is attached hereto as Attachment B and incorporated herein by this reference, has been duly adopted or passed as an official act 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. 24. AMENDMENTS No amendments to this Agreement shall be binding on either party unless in writing and signed by the authorized representatives of both parties. Revised Agreement Draft 14 25. OWNERSHIP OF DOCUMENTS: GRANTEE understands and agrees that any information, document, report or any other material whatsoever ("Information") which is given by the City to GRANTEE, its employees, or any subcontractor, or which is otherwise obtained or prepared by GRANTEE on behalf of the City pursuant to or under the terms of this Agreement, is and shall at all times remain the property of the City. GRANTEE agrees not to use any such information, document, report or material for any other purpose whatsoever without the written consent of the City Manager, which may be withheld or conditioned by the City Manager in his sole discretion. GRANTEE is permitted to make and to maintain duplicate copies of the files, records, documents, etc, if GRANTEE determines copies of such records are necessary subsequent to the termination of this Agreement; however, in no way shall confidentiality as and if permitted by applicable law be breached. GRANTEE hereby represents and warrants to the City that throughout the term of this Agreement and any extension hereof, GRANTEE, its employees and its subcontractors will abide by this provision. 26. PUBLIC RECORDS: GRANTEE understands that the public shall have access, at all reasonable times, to ail documents and information pertaining to City Agreements, 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. GRANTEE's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. GRANTEE hereby represents and warrants to the City that throughout the term of this Revised Agreement Draft 15 Agreement and any extension hereof, GRANTEE, its employees and its subcontractors will abide by this provision. 27. FORCE MAJEURE. A "Force Majeure Event" shall mean an act of God, act of governmental body or military authority, fire, explosion, power failure, flood, storm, hurricane, sink hole, other natural disasters, epidemic, riot or civil disturbance, war or terrorism, sabotage, insurrection, blockade, or embargo. In the event that either party is delayed in the performance of any act or obligation pursuant to or required by the Agreement by reason of a Force Majeure Event, the time for required completion of such act or obligation shall be extended by the number of days equal to the total number of days, if any, that such party is actually delayed by such Force Majeure Event. The party seeking delay in performance shall give notice to the other party specifying the anticipated duration of the delay, and if such delay shall extend beyond the duration specified in such notice, additional notice shall be repeated no less than monthly so long as such delay due to a Force Majeure Event continues. Any party seeking delay in performance due to a Force Majeure Event shall use its best efforts to rectify any condition causing such delay and shall cooperate with the other party to overcome any delay that has resulted. 28. CITY NOT LIABLE FOR DELAYS: GRANTEE hereby understands and agrees that in no event shall the City be liable for, or responsible to GRANTEE, its employees, or any subcontractor, or to any other person, firm, or entity for or on account of, any stoppages or delay(s) herein provided for, or any damages whatsoever related thereto, because of any injunction or other legal or equitable proceedings or on account of any delay(s) for any cause over which the City has no Revised Agreement Draft 16 control. 29. USE OF NAME: GRANTEE understands and agrees that the City is not engaged in research for advertising, sales promotion, or other publicity purposes. GRANTEE is allowed, within the limited scope of normal and customary marketing and promotion of its work, to use the general results of this project and the name of the City. The GRANTEE agrees to protect any confidential information provided by the City and will not release information of a specific nature without prior written consent of the City Manager or the City Commission. GRANTEE hereby represents and warrants to the City that throughout the term of this Agreement and any extension hereof, GRANTEE, its employees and its subcontractors will abide by this provision. 30. COUNTERPARTS: This Agreement may be executed in three or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. 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. ATTEST: Witness Witness Revised Agreement Drafi GRANTEE: Miami River Fund, Inc., a Florida not -for -profit corporation BY: Name: President l7 STATE OF FLORIDA) COUNTY OF MIAMI-DADE) 1 HEREBY CERTIFY that on this day of , 2004, personally appeared before me, an officer duly authorized to administer oaths and take acknowledgements, , as President of MIAMI RIVER FUND, INC., a Florida Corporation. He/She is personally known to me or has produced as identification. Print Name: NOTARY SEAL ATTEST: Priscilla A. Thompson City Clerk APPROVED AS TO FORM AND CORRECTNESS: Jorge L. Fernandez City Attorney Revised Agreement Draft CITY OF MIAMI, a Florida municipal corporation BY: Pedro G. Hernandez, City Manager APPROVED AS TO INSURANCE REQUIREMENTS: LeeAnn Brehm, Risk Management Director 18 ATTACHMENT A To be provided upon document execution ATTACHMENT "B" CORPORATE RESOLUTION WHEREAS, MIAMI RIVER FUND, INC., (the financing agency of the Miami River Commission) desires to enter into an agreement with the City of Miami; and WHEREAS, the 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 board of directors that the president, is hereby authorized and instructed to enter into a contract in the name and on behalf of this corporation with the City of Miami upon the terms contained in the proposed agreement to which this resolution is attached. DATED this day of , 2006. Corporate Secretary Revised Agreement Draft 19