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HomeMy WebLinkAboutExhibit1Revised Draft Form of PSA CITY of MIAMI PROFESSIONAL SERVICES AGREEMENT WITH RELATING TO CONTRACT NO. 825-144 BETWEEN THE CHILDREN'S TRUST AND City of Miami Parks and Recreation Department FOR CHILD MURDER & YOUTH VIOLENCE PREVENTION Uniting for Peace Program THIS Professional Services Agreement ("Agreement"), is made and entered into as of , 2008 (but effective as of April 1, 2008 being the "Effective Date"), by and between the City of Miami, a Florida municipal corporation whose address is 3500 Pan American Drive, Miami, Florida 33133 (the 'City") and a Florida not -for -profit organization whose address is , Miami, Florida ("Provider") in relation to Contract No. 825-144 (the "Contract", a copy of which is attached hereto, incorporated hereby, and made a part hereof as Exhibit A) dated , 2008 by and between The Children's Trust ("The Trust") and the City on behalf of the City's Parks and Recreation Department (the "Department") whose address is 444 SW 2nd Avenue, 8`h Floor, Miami, Florida, 33130, states the conditions and covenants for the rendering of services to children and families (hereafter referred to as "Services") for Provider to provide to the City and The Trust. In consideration of the mutual covenants herein, the Parties agree as follows: A. EFFECTIVE TERM AND AUTHORIZATIONS The Parties agree that the effective term of this Agreement shall be as of April 1, 2008 through January 31, 2009 in order to coincide with the dates of the Contract which shall be from April 1, 2008 through January 31, 2009, subject to funding availability from The Trust and the City and subject to Provider's performance. The City Commission pursuant to Resolution No. , adopted , 2008 (a copy of which is attached hereto, incorporated hereby, and made a part hereof as Exhibit B) has authorized the City through the Department to enter into this Agreement with Provider. Provider's Board of pursuant to its not -for -profit corporation authorization dated (a copy of which is attached hereto, incorporated hereby, and made a part hereof as Exhibit C) has authorized Provider to enter into this Agreement with the City. oe,')I c B. TERMS OF RENEWAL, if applicable In the sole discretion of The Trust and/or the City, as applicable, this Agreement may be renewed twice, each time for a term equal to the term of the initial Agreement and the initial Contract, for a total maximum of two (2) years. Exercise of the renewal option is in The Trust's and/or the City's sole discretions, as applicable, and shall be contingent upon, but not limited to, the following: 1. Provider meeting the performance requirements specified in this Agreement and the Contract. 2. Continued demonstrated and documented need for the services funded; 3. Program performance and fiscal compliance by the Provider that is deemed satisfactory in The Trust's and the City's sole discretion; and 4. The availability of funds from The Trust and/or from the City, as applicable. The Trust and the City are prohibited from creating obligations in anticipation of budgeted revenues from one fiscal year to another without year to year extension provisions in the Agreement and the Contract. 5. If applicable, The Trust in its sole discretion will initiate re -negotiation of the Contract before the contract term expires and the City in its sole discretion will initiate re -negotiation of this Agreement before the term hereof expires. C. SCOPE OF SERVICES 1. Provider agrees to render services in accordance with the Scope of Services, Attachment A, to this Agreement and to the Contract. Provider shall implement the Scope of Services in Attachment A to this Agreement and to the Contract in a manner deemed satisfactory to The Trust and/or to the City, as applicable. Any modification to the Scope of Services shall not be effective until approved, in writing, by The Trust and/or the City, as applicable. 2. Provider agrees that all funding provided by the City pursuant to this Agreement, and by The Trust, pursuant to the Contract will be used exclusively for Services in and for the benefit of Miami -Dade County residents. D. TOTAL FUNDING Subject to the availability of funds, the maximum amount payable for Services rendered under this Agreement shall not exceed Dollars and Cents ($ ). The Parties agree that should available funding from The Trust be reduced, the amount payable under this Agreement will be proportionately reduced by the City if required at the sole option of the City, and at the sole option of The Trust, with a proportionate reduction in the Services. Provider agrees to adhere to the Budget and Method of Payment outlined in Attachment B to this Agreement and in the Contract. E. FISCAL MANAGEMENT 1. Double Payments Provider costs or earnings claimed under this Agreement and under the Contract may not also be claimed under another contract or grant from the City, The Trust or any other Agency. Any claim for double payment by Provider shall be a material breach of this Agreement resulting in a material breach of the Contract. 2. No Supplanting of Existing Public Funds The Trust funding may not be used by Provider as a substitute for existing resources or for resources that would otherwise be available for children's services, or to replace funding previously provided by local and state funding sources for the same purpose. Government agencies must certify that they have maintained their previous funding level when applying for additional funding from The Trust. A violation of this section shall be considered a material breach of this Agreement and of the Contract. 3. Use of Cost Allocation Methodology Provider attests that no other reimbursement is available or used for invoiced Services unless expressly authorized in writing by the City and/or The Trust as applicable. Provider shall develop and/or maintain an approved cost allocation methodology. Provider shall keep accurate and complete records of any fees collected, reimbursement, or compensation of any kind received from any client or other third party, for any Service covered by this Agreement and the Contract,. and shall make all such records available to the City and/or The Trust upon request. Provider shall report such fees, reimbursement, compensation or funding to the City, for reporting to The Trust, for such payments received which will be deducted from Provider's invoices, unless the City and/or The Trust, as applicable, has/have approved the retainage of any fees collected by Provider. 4. Capital Equipment Capital equipment is defined as "property" under Florida Statutes, Chapter 274, as individual items with a value of $1,000 or greater which have a life expectancy of more than one year. Capital equipment purchased with City or Trust funds by Provider become assets of the City or The Trust, as applicable, are intended for City -funded programs and/or The Trust funded programs, as applicable, considered to be owned by the City or The Trust, as applicable, and must be tagged at the time of purchase as an asset of the City or The Trust, as applicable. The City or The Trust, as applicable, will work with Provider to tag the asset and to receive all information regarding the capital equipment. Provider must maintain a record of any capital equipment purchased with funds provided by the City and by The Trust. When Provider is no longer funded by the City or The Trust, as applicable, the equipment will be returned to the City or The Trust, as applicable, for use by another funded program unless it is fully depreciated. Provider must initiate return of such capital equipment to the City or The Trust, as applicable. Ownership of capital equipment will be transferred to Provider and removed from the City's or The Trust's fixed asset systems, as applicable, if the capital equipment is fully depreciated and in the possession of Provider. 5. Assignments and Subcontracts Provider shall not assign this Agreement to another party. Provider shall not subcontract any Services contemplated under this Agreement and under the Contract without prior written approval of the City and/or The Trust., as applicable Any sub -license, assignment or transfer in whole or part of the services to be performed under this Agreement and under the Contract without prior written approval of the City and/or The Trust, as applicable, shall be null and void. Provider shall be responsible for all services performed and all expenses incurred with this Agreement and as it relates to Provider's services and expenses for the Contract. It is understood by Provider that neither the City nor The Trust shall be liable to a subcontractor for any expenses or liabilities incurred under any subcontract and Provider shall be solely liable under the subcontract. Provider agrees, at Provider's sole expense, to hold harmless and defend the City and The Trust against any such claims, demands or actions. In no event shall the City or The Trust directly provide funds to any subcontractor. All payments to any authorized subcontractor shall be paid directly by Provider to the subcontractor. 6. Religious Purposes Organizations and their faith -based community partners shall not use funds provided under this Agreement and under the Contract to support inherently religious activities, such as religious instruction, worship, or proselytization. 7. Lobbying Provider shall not use any funds provided under this Agreement and under the Contract or any other funds provided by the City or any other funds provided by The Trust for lobbying any federal, state or local government or legislators. 8. Adverse Action or Proceeding Provider shall not utilize the funds provided under this Agreement and under the Contract or any other funds provided by the City or any other funds provided by The Trust to retain any legal counsel for any action or proceeding against the City and/or The Trust, as applicable, or any of their respective representatives, agents, employees or officials. F. INDEMNIFICATION BY PROVIDER Provider shall indemnify and hold harmless the City and The Trust and their respective officers, employees, agents, representatives, and instrumentalities from any and all liability, losses or damages, including attorneys' fees and costs of defense, which the City, The Trust, or their respective officers, employees, agents, representatives or instrumentalities may incur as a result of claims, demands, suits, causes of actions or proceedings of any kind or nature arising out of, relating to or resulting from the performance of this Agreement or the Contract by the Provider or its employees, agents, servants, partners, principals, representatives, or sub contractors. Provider shall pay all claims and losses in connection therewith and shall investigate and defend all claims, suits or actions of any kind or nature in the name of the City and/or The Trust, as and where applicable, including appellate proceedings, and shall pay all costs, judgments, and attorney's fees which may issue thereon. Provider expressly understands and agrees that any insurance protection required by this Agreement and by the Contract or otherwise provided by Provider shall in no way limit the responsibility to indemnify, keep and save harmless and defend the City, The Trust, or their respective officers, employees, representatives, or agents as herein provided. The provisions of this section on indemnification shall survive the expirations or terminations of this Agreement and of the Contract. G. COPYRIGHTS AND RIGHT TO DATA/MATERIALS Where activities supported by this Agreement and by the Contract produce original writing, data, sound recordings, pictorial reproductions, drawings or other graphic representations and works of similar nature, the City and The Trust, as applicable, have! has the right to use, duplicate and disclose such materials in whole or in part in any manner, for any purpose whatsoever, and to have others acting on behalf of the City and/or The Trust, as applicable, to do so. If the data/materials so developed are subject to copyright, trademark or patent, then legal title and every right, interest, claim or demand of any kind in and to any patent, trademark or copyright, or application for the same, will vest in the City. The City agrees to allow the Provider, The Trust and others acting on behalf of the Provider and/or The Trust, as applicable, to have full use of the same at no cost. H. OWNERSHIP AND LICENSING OF INTELLECTUAL PROPERTY RIGHTS The Parties understand that this Contract is subject to the provisions, limitations and exceptions of Chapter 119, Florida Statutes, regarding public records. Accordingly to the extent permitted by Chapter 119, Florida Statutes, the City retains sole ownership of intellectual property developed under this Agreement and under the Contract. It is the responsibility of the City to pay all required licensing fees if intellectual property owned by other parties is incorporated into the services required under this Agreement and the Contract. Such licensing should be in the exclusive name of the City. Payment for any such licensing fees or costs arising from the use of others' intellectual property rights must be made by the City from funds available under the Contract. I. BREACH OF CONTRACT AND REMEDIES 1. Breach; Waiver A material breach by the Provider shall have occurred under this Agreement and under the Contract if the Provider: a. Fails to provide the Services outlined in the scope of services (Attachment A) within the effective term of this Agreement and the Contract; b. Ineffectively or improperly uses the City funds and The Trust funds allocated under this Agreement and the Contract; c. Utilizes the City funds and The Trust funds for local or state government programs that were previously funded by any local or state agency; d. Does not furnish the certificates of insurance required by this Agreement and the Contract or as determined by the City and/or The Trust, as applicable; e. Does not meet or satisfy the conditions of award required by this Agreement and the Contract; f. Fails to submit or submits incorrect or incomplete proof of expenditures to support disbursement requests or advance funding disbursements, or fails to submit or submits incomplete or incorrect detailed reports of requests for payment, expenditures or final expenditure reports; g. Does not submit or submits incomplete or incorrect required reports pursuant to the scope of Services in this Agreement and the Contract; h. Refuses to allow the City and/or The Trust, as applicable, access to records or refuses to allow the City and/or The Trust, as applicable, to monitor, evaluate and review the Provider's program, including required client data; i. Fails to comply with child abuse and other incident reporting requirements; j. Attempts to meet its obligations under this Agreement and the Contract through fraud, misrepresentation or material misstatement; k. Fails to correct deficiencies found during a monitoring, evaluation or review within the specified time; I. Fails to meet the terms and conditions of any obligation or repayment schedule to the City and/or The Trust, as applicable, or any of their respective agencies; m. Fails to maintain the confidentiality of client files, pursuant to Florida and federal laws; n. Fails to fulfill in a timely and proper manner any and all of its obligations, covenants, contracts and stipulations in this Agreement and in the Contract; or o. Fails to comply with Background Screening, as required under this Agreement and the Contract. Waiver of breach of any provisions of this Agreement and/or the Contract, as applicable, shall not be deemed to be a waiver of any other breach and shall not be construed to be a modification of the terms of this Agreement and/or the Contract, unless and as applicable. Any waiver shall be in writing signed by the authorized representatives of the parties hereto and if applicable, by authorized representative of The Trust, in accordance with Section 0 below. 2. Remedies If the Provider breaches this Agreement and/or the Contract, as applicable, then the City and/or The Trust, as applicable, may pursue any of the following remedies: The City and/or The Trust, as applicable, may, at their sole discretion, enter into a written performance improvement plan with the Provider to cure any breach of this Agreement and the Contract, as applicable and as may be permissible under state or federal law. Any such remedial plan shall be an addition to this Agreement and the Contract and shall not affect or render void or voidable any other provision contained in this Agreement and/or in the Contract, any costs, and any judgments entered by a court of appropriate jurisdiction. The City and/or the Trust, as applicable, may suspend payment in whole or in part under this Agreement and/or the Contract, as applicable, by providing written notice to the Provider of such suspension and specifying the effective date thereof, at least five (5) days before the effective date of suspension. On the effective date of suspension, the Provider must immediately cease to provide services pursuant to this Agreement and the Contract. All payments to the Provider shall cease as of the notice of suspension effective date. If payments are suspended, the City and/or The Trust, as applicable, must specify in writing the actions that must be taken by the Provider as condition(s) precedent to resumption of payments and shall specify a reasonable date for compliance. The City and/or the Trust, as applicable, may also suspend any payments in whole or in part under any other contracts entered into between the City and the Provider and/or between The Trust and the Provider. The Provider shall be responsible for all direct and indirect costs associated with such termination, including attorney's fees. The City and/or The Trust, as applicable, may terminate this Agreement and/or the Contract, as applicable, by giving written notice to the Provider of such termination and specifying the date thereof at least five (5) days before the effective date of termination. In the event of termination, The City and/or the Trust, as applicable, may (a) request the return of all finished or unfinished documents, studies, surveys, reports prepared and secured by the Provider with City funds and/or Trust funds, as applicable, under this Agreement and the Contract; (b) seek reimbursement of City funds and Trust funds, as applicable, allocated to the Provider under this Agreement and the Contract; or (c) terminate or cancel any other contracts entered into between the City and the Provider and/or between the Trust and the Provider. The Provider shall be responsible for all direct and indirect costs associated with such termination, including attorney's fees. The City and/or the Trust, as applicable, may seek enforcement of this Agreement and the Contract, as applicable, including but not limited to filing an action with a court of appropriate jurisdiction. The Provider shall be responsible for all direct and indirect costs associated with such enforcement, including attorney's fees, costs, and any judgments entered by a court of appropriate jurisdiction. J. INSURANCE REQUIREMENTS — To be reviewed by City's Risk Management Department Prior to execution of this Contract and as a condition to execution, Provider shall provide to the City and/or The Trust, as applicable, Certificates of Insurance or, as applicable, written verification (binders) required under this section or as determined by the City's Risk Management Department and/or The Trust, as applicable. The City and the Trust shall be named as additional insureds on all applicable policies. The City and the Trust shall not disburse any funds until the City and The Trust are provided with the necessary Certificates of Insurance or written verification (binders) and The Trust has approved such documents. The City and The Trust, as applicable, shall have the rights to review said certificates or written verification (binders) and if applicable, require updating of types and amounts of coverages provided upon any renewal of this Agreement and the Contract. If applicable, Insurance policies shall be in the amounts indicated below: 1. Worker's Compensation Insurance for all employees of Provider as required by Florida Statutes, Chapter 440. 2. Comprehensive general liability insurance in an amount not less than $500,000 combined single limit per occurrence for bodily injury and property damage. The City and The Trust must be designated and shown as additional insureds with respect to this coverage. 3. Automobile liability insurance for Providers and! or sub contractors transporting program participants. If applicable, for all vehicles owned or leased by Provider, which are utilized in connection with services provided under the terms of this Agreement and the Contract, insurance shall be required in an amount not less than $1,000,000 combined single limit per occurrence for bodily injury and property damage. The City and The Trust shall be named as additional party insureds with respect to this coverage. 4. Automobile insurance for Providers and! or sub contractors not transporting program participants If applicable, for vehicles owned and not owned by Provider but which are utilized in connection with the services provided under the terms of this Agreement and the Contract, insurance shall be required in the amount of not less than $500,000. The City and The Trust shall be named as additional party insureds with respect to this coverage. Professional liability insurance, if applicable, as determined by the City and/or The Trust, with limits no less than $250,000 per occurrence. The City and The Trust must be designated and shown as an additional party insureds with respect to this coverage. Certificate holders must read: City of Miami, Attention: Risk ManagementgDepartment 444 S.W. 2nd Avenue, Floor Miami, Florida 33130 and The Children's Trust 3150 SW 3rd Avenue, 8th Floor Miami, Florida 33129 Classification and Rating All insurance policies required above shall be issued by companies authorized to do business under the laws of the State of Florida, with the following qualifications: The company must be rated no less than "B" as to management, and no less than "Class V" as the financial strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to the approval of The City's Risk Management Department and/or The Trust's Risk Management Division, as applicable, or the company must hold a valid Florida Certificate of Authority as shown in the latest "List of All Insurance Companies Authorized or Approved to Do Business in Florida" issued by the State of Florida Department of Insurance and be a member of the Florida Guaranty Fund. The Provider shall notify the City and The Trust, in writing, of any changes in insurance coverage, including, but not limited, to any renewals of existing insurance policies, not later than thirty (30) days prior to the effective date except for ten (10) days for lack of payment. Upon review of the Provider's Scope of Services, Attachment A, the City and/or The Trust, as applicable, may increase, waive or modify, in writing any of the foregoing insurance requirements. Any request by a Provider to decrease, waive or modify any of the foregoing insurance requirements shall be approved, in writing, by the City and/or The Trust, as applicable, prior to any such decrease, waiver or modification. In the event that an insurance policy is canceled during the effective period of this Agreement and the Contract, the City and/or The Trust, as applicable, shall withhold all payments from the Provider until a new Certificate of Insurance is submitted and approved by the City and/or The Trust, as applicable. The new insurance policy shall cover the time period commencing from the date of cancellation of the prior insurance policy. The City and/or The Trust, as applicable, may require the Provider to furnish additional and different types of insurance coverage(s) and amounts, or both, as may be required from time to time under applicable federal or state laws. Provision of insurance by Provider, in no instance, shall be deemed to be a release, limitation, or waiver of any claim, cause of action or assessment that the City and/or The Trust, as applicable, may have against the Provider for any liability of any nature related to performance under this Agreement, the Contract or otherwise. Provider's evidence of required insurance coverages is attached hereto, incorporated hereby and made a part hereof as Exhibit D. K. PROOF OF TAX STATUS Provider is required to keep on file the following documentation for review by the City and The Trust. The Internal Revenue Service (I.R.S.) tax status determination letter; - The most recent (two years) I.R.S. form 990 or applicable tax return filing within six (6) months after the Provider's fiscal year end or other appropriate annual fiscal filing; IRS 941 - quarterly federal tax return reports within thirty-five (35) calendar days after the quarter ends and if the 941 reflects a tax liability, proof of payment must be submitted within sixty (60) calendar days after the quarter ends. L. NOTICES All notices pursuant to this Agreement and the Contract shall be in writing and sent by certified mail to the addresses for each Party appearing on page one of this Agreement and the Contract. It is Provider's responsibility to advise the City and The Trust in writing of any changes in Provider's contact names, addresses and/or telephone numbers. M. AUTONOMY Both Parties agree that this Agreement and the Contract recognize the autonomy of, and stipulates or implies no affiliation between, the contracting parties. It is expressly understood and intended that Provider is only a recipient of funding support and is not an agent or instrumentality of the City or of The Trust, and that Provider's agents and employees are not agents or employees of the City or of The Trust. N. RECORDS, REPORTS, AUDITS AND MONITORING 1. Accounting records Provider shall keep accounting records which conform to generally accepted accounting principles. All such records will be retained by Provider for not less than five (5) years beyond the last date that all applicable terms of this Agreement and the Contract have been complied with and final payment has been received and appropriate audits have been submitted to and accepted by the appropriate entity. However, if any audit, claim, litigation, negotiation or other action involving this Agreement, the Contract or any Modification hereto or thereto has commenced before the expiration of the retention period, the records shall be retained until completion of the action and resolution of all issues which arise from it or until the end of the regular retention period, which ever is later. 2. Financial audit Within one hundred and eighty (180) days of the close of its fiscal year, Provider agrees to submit to the City and The Trust an Annual Financial Audit performed by an independent Audit firm of all its corporate activities and any accompanying management letter(s), for each year during which this Agreement and the Contract remain in force and until all funds expended from this Agreement and the Contract have been audited. This audit shall be conducted in accordance with auditing standards generally accepted in the United States of America and standards contained in the Government Auditing Standards issued by the Comptroller General of the United States. The fiscal audit must also be conducted consistent with the United States Office of Management and Budget Circular A-133, Audit of States, Local Government and Non -Profit Organizations and the Florida Single Audit Act, Florida Statutes 215.97, if applicable. For audits conducted under the Office of Management and Budget Circular A-133, Audit of States, Local Government and Non -Profit Organizations and the Florida Single Audit Act, Provider must also submit the schedule of expenditures pertaining to awards, summary schedule of prior audit findings, applicable auditor's reports and the corrective action plan when the schedule of findings and questioned costs prepared by the independent auditor discloses audit findings relating to this Agreement and the Contract. In the event that the independent auditor does not disclose audit findings relating to this Agreement and the Contract, Provider shall provide written notification to the City and The Trust that an audit of Provider was conducted in accordance with applicable laws and regulations and that the findings and questioned costs disclosed no audit findings related to this Agreement and the Contract; and, that the summary schedule of prior audit findings did not report on the status of any audit findings relating to awards that the City and/or The Trust provided. Audit extensions may be granted in writing by the City and The Trust after proper approval has been obtained from the City's Finance Department and The Trust's Finance Department upon receipt in writing of such request with appropriate justification by the Provider. 3. Access to records The City and The Trust reserve the rights to require Provider to submit to an audit by an auditor of The Trust's choosing at The Trust's expense. Provider shall provide access to all of its records which relate to this Agreement and the Contract at its place of business during regular business hours. Provider agrees to provide such assistance as may be necessary to facilitate their review or audit by The Trust to insure compliance with applicable accounting and financial standards, including access by the City, The Trust or their designees, to Provider's independent auditor's working papers for complying with federal, state or local requirements. 4. Monitoring Provider agrees to permit the City's and/or The Trust's personnel or contracted agents to perform random scheduled and/or unscheduled monitoring, reviews and evaluations of the program which is the subject of this Agreement and the Contract using The Trust approved monitoring tools. The City and Trust shall monitor both fiscal/administrative and programmatic compliance with all the terms and conditions of this Agreement in relation to the Contract. Provider shall permit the City and The Trust, as applicable, to conduct site visits, client interviews, client assessment surveys, fiscal/administrative review and other techniques deemed reasonably necessary in the City's and The Trust's sole discretion to fulfill the monitoring function. A report of the City's and/or The Trust's findings, as applicable, will be delivered to Provider and Provider will rectify all deficiencies cited within the period of time specified in the report. 5. Client Records Provider shall maintain a separate file for each child/family served. This file shall include all pertinent information regarding program enrollment and participation. At a minimum, the file will contain enrollment information (including parent registration consents and child demographics), service plans, outcome measures (as set forth in Attachment A), and notes documenting referrals, special needs, or incident reports. These files shall be subject to the audit and inspection requirements under this Agreement and the Contract. All such records will be retained by the Provider for not less than five (5) calendar years after the participant is no longer enrolled. Provider agrees to comply with all applicable state and federal laws on privacy and confidentiality. 6. Internal Documentation Provider agrees to maintain and provide for inspection to the City and/or The Trust, as applicable, during regular business hours the following as may be applicable: (1) personnel files of employees which include hiring records, background screening results, job descriptions, and evaluation procedures; (2) authorized time sheets, records, and attendance sheets to document the staff time billed to provide Services pursuant to this Agreement and the Contract; (3) daily activity logs and monthly calendars of the provision of Services pursuant to this Agreement and the Contract; (4) training modules; (5) pre and post session questionnaires; (6) participant consent and information release forms; (7) agency policies and procedures; and (8) such other information related to Services provision as described in Attachment A; all upon request by the City and/or The Trust, as applicable. 7. Confidentiality Provider and the City under this Agreement, and the City and The Trust under the Contract, understand that during the course of performing the Services hereunder and under the Contract, each party may have access to certain confidential and proprietary information and materials of the other party in order to further performance of the Services. The Parties shall protect confidential information and comply with applicable federal and state laws on confidentiality to prevent unauthorized use, dissemination or publication of confidential information as each party uses to protect its own confidential information in a like manner. The Parties shall not disclose the confidential information to any third party, or to any employee or Provider who does not have a need to know such information, which need is related to performance of a responsibility hereunder. However, this Agreement and the Contract impose no obligation upon the Parties with respect to confidential information which (a) was lawfully known to the receiving party before receipt from the other, (b) is or becomes a matter of public knowledge through no fault of the receiving party, (c ) is rightfully received by the receiving party from a third party without restriction on disclosure, (d) is independently developed by or for that party, (e) is disclosed under operation of law, or (f) is disclosed by the receiving party with the other party's prior written approval. The confidentiality provision of this Agreement and the Contract shall remain in full force and effect after the termination of this Agreement and the Contract. 8. Security Obligation Provider shall maintain an appropriate level of data security for the information Provider is collecting or using in the performance of this Agreement and the Contract. This includes, but is not limited to, approving and tracking ail Provider employees who request system or information access and ensuring that user access has been removed from all terminated Provider employees. O. MODIFICATIONS Any alterations, variations, modifications, extensions or waivers of provisions of this Agreement and/or of the Contract, including but not limited to amount payable and effective term, shall only be valid when they have been reduced to writing, duly approved and signed by both parties and attached to the originals of this Agreement and the Contract. P. GOVERNING LAW & VENUE This Agreement and the Contract shall be interpreted and construed in accordance with and governed by the laws of the State of Florida without regard to its conflicts of laws provisions. Any controversies or legal problems arising out of the terms of this Agreement and the Contract and any action involving the enforcement or interpretation of any rights hereunder and/or thereunder shall be submitted to the jurisdiction of the state courts of the Eleventh Judicial Circuit, in and for, Miami -Dade County, Florida. Q. EMPLOYEE BACKGROUND SCREENING In accordance with Sections 943.0542, 984.01(2) (a), 985.01(2) (a), Chapter 435, 402 and 39.001, Florida Statutes, only employees, volunteers and subcontracted personnel with a satisfactory Level 2 background check through a screening agency may work in direct contact with children under the age of eighteen. Level 2 Background screenings must be completed through the Florida Department of Law Enforcement (FDLE), VECHS Program. Satisfactory background screening documentation will be accepted for those agencies that already conduct business with either the Department of Children and Families (DCF) or the Department of Juvenile Justice (DJJ) or the Miami Dade Public School System (MDPS) if clearance letter is available and on file. In addition, an Affidavit of Good Moral Character must be completed and notarized for each employee, volunteer and subcontracted personnel upon hiring. Per Florida Statue 1012.465, providers employing current School Board employees in possession of a valid School Board ID Badge and updated Level 2 Screening must complete a verification form. Non -School Board employees are required to obtain a Level 2 Screening and a School Board ID Badge before access to school campuses is granted, in the event access to school campuses is incorporated in the Services under this Contract. Provider shall retain all records demonstrating compliance with the background screening required herein for not less than five (5) years beyond the last date that all applicable terms of this Agreement and the Contract have been complied with and final payment has been received and appropriate audits have been submitted to and accepted by the appropriate entity. The Provider shall re -screen each employee, volunteer and/or subcontractor every five (5) years. R. CHILDREN WITH DISABILITIES AND THEIR FAMILIES Provider understands that the City and The Trust expect Provider to meet the federal standards under the Americans with Disabilities Act. By policy of The Trust, providers must also implement reasonable programmatic accommodations to include children with disabilities and their families, whenever possible. S. REGULATORY COMPLIANCE 1. Non-discrimination and Civil Rights Provider shall not discriminate against an employee, volunteer, or client of the Provider on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, religion, ancestry, national origin, disability, or age, except that programs may target services for specific target groups as may be defined in the competitive solicitation. Provider shall demonstrate that it has standards, policies, and practices necessary to render services in a manner that respects the worth of the individual and protects and preserves the dignity of people of diverse cultures, classes, races, religions, sexual orientation, and ethnic backgrounds. Provider agrees to abide by Chapter 11A of the Code of Miami -Dade County ("County Code"), as amended, which prohibits discrimination in employment, housing and public accommodations; Title VII of the Civil Rights Act of 1968, as amended, which prohibits discrimination in employment and public accommodation; the Age Discrimination Act of 1975, 42 U.S.C. Section 2000d, as amended, which prohibits discrimination in employment because of age; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as amended, which prohibits discrimination on the basis of disability; and the Americans with Disabilities Act, 42 U.S.C. § 12103 et seq., which prohibits discrimination in employment and public accommodations because of disability. It is expressly understood that upon receipt of evidence of discrimination under any of these laws, the City and/or The Trust, as applicable, shall have the right to terminate all or any portion of this Agreement and the Contract. If Provider or any owner, subsidiary, or other firm affiliated with or related to Provider, is found by the responsible enforcement agency or the courts to be in violation of these laws, said violation will be a material breach of this Agreement and the Contract, and the City and/or The Trust, as applicable, may determine not to conduct any further business with Provider. 2. Public Entities Crime Act Provider will not violate the Public Entities Crimes Act (Section 287.133, Florida Statutes), which essentially provides that a person or affiliate who is a Provider, consultant or other provider and who has been placed on the convicted vendor list following a conviction for a Public Entity Crime may not submit a bid on a contract to provide any goods or services to The Trust, may not submit a bid on a contract with The Trust for the construction or repair of a public building or public work, may not submit bids on leases of real property to The Trust, may not be awarded or perform work as a Provider supplier, sub Provider, or consultant under any related contract with or funded by The Trust, and may not transact any business with The Trust in excess of the threshold amount provided in Section 287.017, Florida Statutes, for category two purchases for a period of thirty-six (36) months from the date of being placed on the convicted vendor list. Violation of this section shall result in cancellation of this Agreement and the related Contract and recovery of all monies paid hereto and thereto, and may result in debarment from The Trust's competitive procurement activities. 3. Conflict of interest Provider represents that the execution of this Agreement in relation to the Contract does not violate The Trust's Conflict of Interest Policy and State of Florida, Code of Ethics, (§112.311, Florida Statutes), or the City Code, as amended, which are incorporated herein by reference as if fully set forth herein. Provider agrees to abide by and be governed by these conflict of interest provisions throughout the course of this Agreement and the related Contract and in connection with its obligations hereunder and thereunder. 4. Compliance with Sarbanes-Oxley Provider shall comply with the following provisions of the Sarbanes-Oxley Act (SOX) that apply. Provider agrees not to alter, cover up, falsify, or destroy any document that may be relevant to an official investigation (SOX, Section 1102, Section 1512 of Title 18, USC). Provider agrees not to punish whistleblowers or retaliate against any employee who reports suspected cases of fraud or abuse (SOX, Section 1107, Section1513 of Title 18, and USC). 5. Licensing The Provider shall obtain and maintain in full force and effect during the term of this Agreement and the Contract any and all licenses, certifications, approvals, insurance, permits and accreditations, required by the State of Florida, Miami - Dade County, the City, The Trust, or the federal government. 6. Proof of Policies Provider shall keep on file copies of its policies on non-discrimination, equal opportunity and/or affirmative action, Americans with Disabilities Act, and drug - free workplace. 7. Incident Reporting Provider shall immediately report knowledge or reasonable suspicion of abuse, neglect, or abandonment of a child, aged person, or disabled adult to the Florida Abuse Hotline on the statewide toll -free telephone number (1-800-96-ABUSE). As required by Chapters 39 and 415, Florida Statutes, this is binding upon both the Provider and its employees. Provider shall complete an incident report in the event of any serious bodily injury to anyone within the scope of this Agreement and the Contract or arising out of the performance of this Agreement and the Contract. Provider shall provide written notification of the incident together with a copy of the incident report to the City and The Trust within three (3) working days. Provider shall provide written notification to the City and The Trust, within seven (7) days, if any legal action is filed as a result of such an injury. 8. Sexual Harassment Provider shall complete an incident report in the event a client or employee makes an allegation of sexual harassment, sexual misconduct or sexual assault by a Provider employee and the Provider has knowledge thereof. Provider shall provide written notification to the City and The Trust within three (3) working days if such an allegation is made. Provider shall provide written notification to the City and The Trust, within seven (7) days, if any legal action is filed as a result of such an alleged incident. T. CONSENT Demographic and service information on program participants will be provided to the City and The Trust. Provider will ask participants to sign a voluntary Consent to Photograph and for Communications. The form is available in English, Spanish, and Creole and must be downloaded from www.thechildrenstrust.org. All signed Consent forms will be submitted to the Program Coordinator, with a copy filed in the participants record. Any refusal of consent must be properly documented and signed by the parent or legal guardian on the Consent form. Provider will ensure that each program participant's contact information is current and updated upon exiting the program. U. PROGRAMMATIC DATA REPORTING Provider agrees to comply and participate in any data collection reporting, including participant data as required by the City and The Trust and described in Attachment C to this Agreement and the Contract, Programmatic Data Reporting Requirements. In addition, Provider agrees to furnish to the City and The Trust with quarterly program narrative reports in the format to be specified by The Trust. V. PUBLICITY Provider agrees that events funded by this Agreement and the Contract shall recognize the City and The Trust as funding sources. Provider shall ensure that all publicity, public relations, advertisements and signs recognize the City and The Trust for the support of all contracted activities. The use of the official The Trust logo is permissible. The use of information and logos of the City by Provider shall be determined by the Department Director. Provider shall ensure that all media representatives, when inquiring about the activities funded by this Agreement and the Contract, are informed that the City and The Trust are its funding sources. Provider shall distribute a press release announcing that it has been awarded funding by The Children's Trust through the City. Provider shall, if it possesses the appropriate technology, provide a link between the website and The Trust's website and, if applicable, the City's website. W. PUBLICATIONS Provider agrees to supply to each of the City and The Trust, without charge, up to three copies of any publication developed in connection with implementation of programs addressed by this Agreement and the Contract. Such publications will state that the program is supported by The Trust through the City. Provider agrees that the City and The Trust will have unlimited use of copyrighted materials developed under this Agreement and the Contract to the extent Provider has the rights to use the materials. To the extent permitted by the journal or other publication source, Provider shall include The Children's Trust logo and the following paragraph in all materials featuring programs funded by The Children's Trust, including but not limited to newsletters, press releases, brochures, fliers, homepage of websites or any other materials for dissemination to the media or general public: English: The United for Peace program of the City of Miami Parks and Recreation Department is funded by The Children's Trust. The Trust is a dedicated source of revenue established by voter referendum to improve the lives of children and families in Miami -Dade County. Spanish: The United for Peace program of the City of Miami Parks and Recreation Department esta financiado por El Fidecomiso de los Ninos (The Children's Trust). El Fidecomiso de los Ninos es una fuente de financiacion, creada por los votantes en referendum para mejorar las vidas de los ninos y las families de el Condado de Miami -Dade. Kreyol: The United for Peace program of the City of Miami Parks and Recreation Department finanse pa "The Children's Trust". Trust la, ce you sous lajan ke gouvenman amerikin vote an referandom you ke' li investi bien nan pwogram kap ameliore la Vi Ti Moun ak fanmi yo nan Miami Dade. X. HEADINGS, USE OF SINGULAR AND GENDER Paragraph headings are for convenience only and are not intended to expand or restrict the scope or substance of the provisions of this Agreement and the Contract. Wherever used herein, the singular shall include the plural and plural shall include the singular, and pronouns shall be read as masculine, feminine or neuter as the context requires. Y. TOTALITY OF CONTRACT/SEVERABILITY OF PROVISIONS This Agreement with its attachments as referenced below contains all the terms and conditions agreed upon by the parties: Attachment A: Scope of Services Attachment B: Budget & Method of Payment Attachment C: Reporting Requirements Exhibit A: The Contract between the City and the Trust Exhibit B: The City's authorizing Resolution No. Exhibit C: Provider's not -for -profit corporation authorization and consent to the Contract Exhibit D: Provider's Evidence of Insurance Coverages No other contract, oral or otherwise, regarding the subject matter of this Agreement and the Contract shall be deemed to exist or bind any of the parties hereto. If any provision of this Agreement and/or the Contract is held invalid or void, the remainder of this Agreement and/or the Contract, as applicable, shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of applicable law. Z. CONTINGENCY CLAUSE Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction of funds andjor change in regulations, upon thirty (30) days written notice. AA. 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. BB. CITY NOT LIABLE FOR DELAYS Provider hereby understands and agrees that in no event shall the City be liable for, or responsible to Provider or any subconsultant or subcontractor, or to any other person, firm, or entity for or on account of, any stoppages or delay(s) in work 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 control. CC. SURVIVAL All obligations (including but not limited to indemnity and obligations to defend and hold harmless) and rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Agreement shall survive such expiration or earlier termination. DD. AGREEMENT NUMBER(S) This Agreement is assigned as City Agreement 08- and relates to Children's Trust Contract No. EE. COUNTERPARTS This Agreement may be executed in three (3) or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. In Witness Hereof, the parties have entered into this Agreement as of the date set forth above. City of Miami, A Florida municipal corporation By: Pedro G. Hernandez, City Manager Date: Attest: Priscilla A. Thompson, City Clerk Approved by Parks & Recreation Department By: Ernest Burkeen, Director Approved as to Form and Correctness: By: Julie O. Bru, City Attorney Approved as to Insurance Requirements: By: LeeAnn Brehm, Risk Management Director Provider: , a Florida Not -for -Profit Corporation Attest: By: By: Name: Name: Title: Title: Date: Date: This Agreement is not valid until signed by both parties