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HomeMy WebLinkAboutExhibit 1AGREEMENT TO ESTABLISH A FISCAL SPONSORSHIP FUND ACCESS MIAMI FUND THIS AGREEMENT (the "Agreement") is made and entered into this day of , 2011 ("Effective Date"), by and between the City of Miami, a municipal corporation of the State of Florida having offices at 3500 Pan American Drive, Miami, Florida 33130 (the "City"), and The Miami Foundation (the "Agency"), a Florida not for profit corporation and community Agency having its principal office at 200 South Biscayne Blvd. Suite 505, Miami, Florida 33131. WITNES SETH: WHEREAS, the City desires to better prepare and support its citizens to be more financially self-sufficient and able to participate and compete in the global economy by assisting them in becoming more familiar and comfortable with credit, money management and career development; WHEREAS, the City entered into an agreement with the Dade Community Foundation, Inc. in 2009 wherein they agreed to create an initiative under the name "Elevate Miami" that included four components: (1) Digital Literacy; (2) ACCESS Miami; (3) the Education Compact; and (4) Community Outreach. Each component targets the City's youth, low-income families, minorities, seniors and all residents facing barriers to economic empowerment; WHEREAS, in accordance with this objective, the City launched and maintains a comprehensive and wide-ranging initiative under the name "ACCESS Miami" that includes four components: (1) access to benefits; (2) access to capital; (3) accumulating wealth and assets and; and (4) financial literacy (collectively, the "Program"). Each component targets the City's low - moderate income families, minorities, small businesses and entrepreneurs, seniors, and all residents facing barriers to economic empowerment; WHEREAS, the Program currently provides citizens of Miami with: (1) the wealth - building tools necessary for economic self-sufficiency; (2) programs that enhance and support efforts to improve workforce development; (3) technology platforms; (4) financial literacy training; and (5) capacitybuilding for community organizations and small businesses; WHEREAS, under the 2009 agreement entered into between the City and the Dade Community Foundation, Inc_, a public -private partnership was created wherein the Dade Community Foundations, Inc. would assist the City as a fiscal intermediary, in recognition of its tax-exempt status under Section 501(c)(3) of the Internal Revenue Code of 1986. Ultimately, the purpose of the fiscal responsibility was to advance the initiatives of ACCESS Miami; WHEREAS, under the 2009 agreement entered into between the City and the Dade Community Foundation, Inc. funds were transferred to the Dade Community Foundation, Inc. On or about October 23, 2010 the Dade Community Foundation, Inc. legally changed its name to the Miami Foundation; KLG Document 259856 WHEREAS, the Program will be funded through the City's transfer of the existing assets from Dade Community Foundation, Inc. to the Miami Foundation in the amount of Two Hundred Thousand Eighty -Nine Dollars and Eight Cents ($200,089.09), currently held in Elevate Miami Fund I, and Four Thousand Four Hundred One Dollars and Thirty -Two Cents (S4,401.32), currently held in Elevate Miami Fund II, (collectively the "Fund"); WHEREAS, the City and the Agency further agree that the day-to-day operations of the Program will be the responsibility of a person or persons designated by the City Manager and that the Agency will act as the fiscal sponsor for the Program; NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the City hereby irrevocably assigns, conveys, transfers, and delivers to the Agency the Fund assets, listed in "EXHIBIT A" and incorporated and attached hereto, to have and to hold the same for the following uses and purposes, and subject to the terms and conditions set forth herein. It is agreed and understood that the Fund will in all events be used and dedicated to a purpose permitted by Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"). 1. The fiscal collaboration hereby created shall be known as ACCESS Miami (the "Program"), which shall: (1) Serve as the asset repository that will fund the ACCESS Miami Program; (2) Establish a review process that will: (a) Pursue the advancement of the Program; (b) Facilitate the transfer of assets from the Program to ACCESS Miami to use as needed; (c) Conduct any other activities required to fulfill the intentions of this Agreement. 2. The Agency shall hold and manage the Fund exclusively for general program uses and purposes in accordance with the Section 501(c)(3) of the Code. More specifically, the'Fund shall be used to augment, enhance or increase the programs that are offered and available in connection with and within the Program. 3. The City Manager, or one or more representatives designated by the City Manager (the "Designated Representative(s)"), shall act as the City's representative(s) in all of its communications and other dealings with the Agency under this Agreement. The City Manager , hereby designates William Porro, Special Projects Administrator, as the initial Designated Representative(s). The City Manager agrees to provide no less than ten (10) days written notice to the Agency if the City elects to change the Designated Representative(s). 2 KLG Document 259856 4. The Agency will act in accordance with its normal operating procedures and apply all normal grant fund administration to this fund allocation and fiscal partnership. This includes but is not limited to: periodic reporting, management, and tracking of all expenses and payments. 5. The Fund shall at all times operate in accordance with the charitable status of the Agency. All Fund .expenditures and operations shall be consistent with what is pennitted for organizations described in Section 501(c)(3) of the Code. If at any time the Fund or its operations or expenditures shall be terminated, the Agency may make a recommendation to the City as to how all monies remaining in the Fund shall be utilized and distributed; however, in the event no determination has been made within ninety (90) days of tennination, the Fund shall be returned to the City. The determination of the Board of Directors of the Agency as to whether the Fund and its expenditures and operations are activities pennitted under Section 501(c)(3) of the Code shall be conclusive and binding on the Agency. "Exhibit B," attached hereto, includes a model budget for the Program's use in connection with any events/projects undertaken in connection with the Fund. 6. The Agency shall provide a written report to the City on a quarterly basis. The format of the report shall be determined by the City in cooperation with the Agency and will include: • The period covered by the report. • An overview of the Fund's status and accomplishments during the year. • Planned activities and goals for the following year (if any). • A financial report, which shall include schedules of activity expenditures, a budget for the following year (if applicable), and an explanation of any expenditures that vary by more than ten percent (10%) from the budget (if applicable). • Acknowledgement by the Agency's Director that the reported actual expenditures are true and correct and that, to the best of its members' knowledge, all grant money and other distributions were used in a manner consistent with the Code. 7. The Agency, its contractors, subcontractors, employees, and agents shall be deemed independent contractors, and not agents or employees of the City, and shall not attain any rights or benefits under the civil service or pension programs of the City, or any rights generally afforded its employees. The Agency will serve as the Fund's fiscal sponsor. Any obligations incurred, damages or injuries caused, or misconduct committed by the Agency are not the responsibility of the City. All data and or information obtained through the Program are owned by the City and not the Agency. 8. Record keeping with respect to all monetary transactions, including but not limited to purchases, salaries, and other expenses must be maintained by the Agency. The City shall have the right to conduct audits of the Agency's records pertaining to the Fund and the Program. 3 KLG Document 259856 9. The term of this Agreement shall commence on the Effective Date hereof for a one (1) year term, renewable for two (2) additional one year terms, as deemed appropriate by the City. 10. The Agency shall receive an annual fee, which shall be taken from the Fund, for reasonable and proper compensation for services and expenses rendered to and incurred by the Fund in accordance with the Agency's rules governing fiscal collaborations.. The annual fee shall be one percent (1%) per annum of the Fund's average balance. The annual fee shall be calculated by using the average balance (liquid) of the Fund only. 11. This Fiscal Sponsorship Agreement is subject to the condition that the Agency, as of the date of transfer, is classified as being in good standing by the Internal Revenue Service as an organization that: (1) meets the tax exemption criteria described in Section 501(c)(3) of the Code; and (2) is not a private Agency as defined in Section 509(a) of the Code. As of the date of transfer, the Agency must also have the full power and authority to enter into this Agreement and otherwise perfonn all obligations under this Agreement in accordance with its terms, and all corporate action necessary to authorize the execution and fulfillment of the Agreement. 12. This Agreement and the activities contemplated herein shall be administered in and under the laws of the State of Florida, and this Agreement and the validity thereof shall be governed by and construed in accordance with the laws of the State of Florida. No program or event shall be conducted outside of Florida without the prior written approval of the City. 13. The Agency understands and acknowledges that agreements between non-profit entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflicts of interest, record keeping, etc. The Agency agrees that it, and any and all staff associated or dealing with the Fund or the Program, shall comply with and observe all applicable federal, state, and local laws, rules, regulations, codes, and ordinances, as they may be amended from time to time. 14. Any liability of the City under this Agreement shall be subject to the limitation imposed by Section 768.28, Florida Statutes. The Agency (the "Indemnitor") shall indemnify, defend and hold hannless the City, its officials, employees and agents (collectively referred to as "Indemnitees") and 'each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees), or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or non-performance of this Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default, or negligence (whether active or passive) of the Indemnitor, or (ii) the failure of the Indemnitor to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement. The Indemnitor expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by the Indemnitor, as provided above, for which the Indemnitor's liability would otherwise be limited to payment under State of Florida Workers' Compensation or similar laws. The Agency further understands- that Florida Workers' Compensation benefits available to employees of the 4 KLG Document 259856 City are not available to the Agency and its employees under this Agreement. The provisions of this Paragraph 19 shall survive the term of the Agreement. 15. The Agency fully understands and hereby agrees that it shall be the responsibility of the Agency to secure its own insurance coverage(s), as applicable insurance(s) will not be paid by the City on behalf of the Agency during the tern of this Agreement. The Agency shall provide, prior to execution of this Agreement, evidence of such insurance coverage(s) and in such amounts, as applicable, as approved by the City's Department of Risk Management in "Exhibit C" attached hereto. The Agency shall provide to the City's Department of Risk Management prior to execution of this Agreement an independent contractor letter regarding its exemption from Workers Compensation Insurance, if applicable. 16. The Agency shall make reasonable efforts to acknowledge the City as the Fund's fiscal sponsor in all media whatsoever (whether written, graphic, oral, audio, video or electronic) produced, published, disseminated, or distributed by the Program. In press interviews and similar coverage, the Agency shall explicitly make clear to the interviewer or other journalist that the Fund's activities are conducted under the City's fiscal sponsorship. The Agency further agrees that the City's name and logo may not be otherwise used, copied, reproduced, altered in any manner, or sold to a third party for purposes other than those specified in this Agreement. Nothing in this Agreement, or in the Agency's use of the City's name and logo confers, or may be construed as conferring, the Agency any right, title, or interest whatsoever of the City's name and logo beyond the right granted in this Agreement. 17. All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth (5th) day after being posted or the date of actual receipt, whichever is earlier. Notices must be sent to the individuals and addresses indicated below: If to the City: Johnny Martinez, P.E. City Manager, City of Miami 3500 Pan American Drive Miami, FL 33133-5595 With a copy to: Julie O. Bru City Attorney, City of Miami 444 S.W. 2nd Avenue, 9th Floor Miami, FL 33130-1910 If to the Agency: Javier Alberto Soto The Miami Foundation 200 South Biscayne Boulevard Suite 505 Miami, FL 33131 18. This instrument constitutes the sole and only agreement of the parties hereto relating to the Fund and the Program, and correctly sets forth the rights, duties, and 5 KLG Document 259856 obligations of the parties. There are no collateral or oral agreements or understandings between the parties relating to this Agreement. Any promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. This Agreement shall not be modified in any manner except by an instrument in writing executed by the parties. 19. In the event of conflict between the terms of this Agreement and any terms or conditions contained in any documents attached hereto, the terms of this Agreement shall govern. 20. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing and delivered in accordance with Section 17 of this Agreement. 21. In the event that any provision contained in this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida, then such provision shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable to confonn with such laws, that 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. 22. No provision of this Agreement shall in any way inure to the benefit of any third parties so as to constitute said party a beneficiary of this Agreement, or any one or more of the terms hereof, or otherwise give rise to any cause of action in any party not a party to this Agreement. 23. The obligations of the Agency under this Agreement shall not be assigned to any other party without the City's prior written consent, which may be withheld by the City in its sole discretion. 24. The Agency certifies that it has the legal authority to enter into this Agreement. A resolution, motion or similar action has been duly adopted as an official act of the Agency's governing body, authorizing the execution of this Agreement, and identifying the official representatives of the Agency to act in connection herewith and to provide such additional information as may be required by the City. (SIGNATURES ON FOLLOWING PAGE) 6 KLG Document259856 IN WITNESS WHEREOF, the City and the Agency have executed this Agreement as of the date written above. THE MIAMI FOUNDATION Signature of Witness Signature Print Name: Print Name: Date: Date: Signature of Witness Print Name: Date: ATTEST: CITY OF MIA corporation FLORIDA, a municipal Priscilla A. Thompson Johnny Martinez, P.E. City Clerk City Manager Date: Date: APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Julie O. Bru City Attorney KLG Document 259856 Calvin Ellis Risk Management Administrator 7 EXHIBIT A THE ACCESS MIAMI FUND I. Two Hundred Thousand Eighty -Nine Dollars and Eight Cents (S200,089.09), currently held in Elevate Miami Fund I, will be transferred to the Agency and be contributed to the Fund. II. Four Thousand Four Hundred One Dollars and Thirty -Two Cents ($4,401.32), currently held in Elevate Miami Fund II, will be transferred to the Agency and be contributed to the Fund. 8 KLG Document 259856 CITY OF MIAMI By: Johnny Martinez, P.E. City Manager THE MIAMI FOUNDATION, INC. By: Javier Alberto Soto President/CEO EXHIBIT C Approved Insurance Coverage(s) Commercial General Liability (Primary & Non Contributory) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence • $1,000,000 General Aggregate Limit $2,000,000 Products/Completed Operations $1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required City of Miami included as an additional insured (CG 20I0 11/85) or Equivalent version Contingent Liability (Independent Contractors Coverage) Contractual Liability Waiver of Subrogation Premises & Operations Liability II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned Autos'Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident B. Endorsements Required City of Miami included as an Additional Insured Employees as insureds III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation Employer's Liability $1,000,000 A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee S500,000 for bodily injury caused by disease, policy limit IV. Crime Coverage A. Limits of Liability Employee Dishonesty including KLG Document 259856 Forgery and Alteration $250,000 City of Miami listed as loss payee on this coverage V. Errors and Omissions Each claim Aggregate loss $250,000 $250,000 The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and for certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 10 KLG Document 259856