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HomeMy WebLinkAboutExhibit 1Revised Draft CITY OF MIAMI PARKS AND RECREATION SERVICES AGREEMENT WITH BELAFONTE TACOLCY CENTER, INC. THIS PARKS AND RECREATION SERVICES AGREEMENT is entered into this day of , 2013 ("Agreement"), (but effective as of the commencement of the term of this Agreement on the "Effective Date" as defined below), between the City of Miami, a municipal corporation of the State of Florida, whose principal address is 444 S.W. 2nd Avenue, 8th Floor, Miami, Florida 33130, (hereinafter referred to as the "CITY"), on behalf of its Department of Parks and Recreation (hereinafter referred to as the "Department" or "Parks") and BELAFONTE TACOLCY CENTER, INCORPORATED, a Florida -not -for -profit corporation, whose principal address is 6151N.W. 9th Avenue, Street, Miami, Florida, 33127 (hereinafter referred to as "BTC" or the .`.`PROVIDER"). FUNDING SOURCE: Parks and Recreation Department General Fund Account FROM OCTOBER 1, 2013 TO SEPTEMBER 30, 2014 TERM OF AGREEMENT: AMOUNT: PURPOSE: CITY COMMISSION APPROVAL REQUIRED: Provider's Information: EXECUTIVE DIRECTOR: PROGRAM OFFICER: 402382 Revised Draft PSA with Belafonte Tacolcy Center 0 Eighty-six thousand, six hundred and seventy-five dollars ($86,675) To provide sports development program services at Belafonte Tacolcy Park Yes 1 CONTACT ADDRESS FOR SERVICES: TELEPHONE NO: 6161 N.W. 9TH Avenue, Belafonte Tacolcy Park 305-751-1295 RECITALS: WHEREAS, the City owns and the Department operates the real property known as Belafonte Tacolcy Park located at 6161 N.W. 9th Avenue and the personal property contained therein; and WHEREAS, pursuant to Section 18-86(a)(3)(c) of the City's Code, as amended from time to time (the "Code"), the City through the Department has established that it is of benefit to the public for not -for -profit organizations to undertake services related to cultural, educational, recreational or park activities within City parks; and WHEREAS, the City is interested in continuing the sports development program services being provided by Provider for at -risk youth at Belafonte Tacolcy Park; and WHEREAS, both the City and Provider understand that the facilities that Provider uses at Belafonte Tacolcy Park to provide the Services have been and are continuing to be renovated/improved by tax-exempt bond funding, which requires both the City and Provider to comply with Internal Revenue Code rules and regulations regarding uses of tax-exempt bond -financed facilities; accordingly, in addition to this Agreement, the City and Provider by a separate authorization will be updating and entering into an Amendment to the existing Management Agreement of March 11, 2005 regarding Belafonte Tacolcy Park between the City and BTC in order to comply. with IRS Safe Harbor Management Agreement Rules.; and 402382 Revised Draft PSA with Belafonte Tacolcy Center 2 WHEREAS, after the required duly noticed public hearing, pursuant to Resolution No. , adopted on , 2013 (the "Authorizing Resolution"), the City Commission has approved by the required 4/5ths affirmative vote the selection of Provider and has authorized the City Manager to enter into this Agreement to provide for the Services stated herein within Belafonte Tacolcy Park; and WHEREAS, subject to the applicable laws and requirements set forth herein, Provider possesses the ability and desires to provide such Services to the City. NOW, THEREFORE, in order to carry out the intent as expressed herein and in consideration of the mutual covenants and obligations herein set forth, and other good and valuable consideration, the sufficiency of which are acknowledged by the parties, the City and the Provider understand and agree as follows: ARTICLE I 1.0 RECITALS AND INCORPORATIONS The foregoing recitals are hereby incorporated and made a part of this Agreement. All attachments and exhibits hereto are hereby incorporated in and made a part of this Agreement. 1.1 BASIC REQUIREMENTS As a necessary part of this Agreement, the following documents must be approved by the City prior to its execution, and must be on file with the Department: a. Provider's Not -for -Profit Corporation Resolution authorizing execution of this Agreement and a copy of Provider's most recent corporate filing of 402382 Revised Draft PSA with Belafonte Tacolcy Center 3 officers/directors with the Florida Secretary of State (COMPOSITE EXHIBIT 1); and b. City's Authorizing Resolution (EXHIBIT 2); and c. Provider's Work Program/Scope of Services setting forth the scope of services (hereinafter "Services") to be provided under this Agreement (ATTACHMENT I); and d. Budget Summary, to include: completion of PROVIDER'S Program/Line-Item Budget/Expenditure Justification (ATTACHMENT II), Total Actual and Projected Funds Disclosure, and Staff Salaries Schedule (on forms supplied by the CITY); budget for total of all funding sources (other grants) for the Services at Belafonte Tacolcy Park; copies of all subcontracts and/or services agreements funded in whole or in part under this Agreement for the Services at Belafonte Tacolcy Park; and e. Certificate(s) of Insurance which reflect the requirements of the City's Risk Management Department as set forth in ATTACHMENT III hereto regarding PROVIDER'S current liability insurance, naming the CITY as primary or additional insured, and as a certificate holder as determined by the Risk Management Department of the CITY; current Workers' Compensation Insurance; current Fidelity Bond or current Crime Coverage Insurance (applicable for all persons who are. authorized to receive and disburse funds under this Agreement); flood insurance coverage if applicable; and other coverage(s) as deemed necessary, if applicable (i.e., automobile insurance); and 402382 Revised Draft PSA with Belafonte Tacolcy Center 4 f. PROVIDER's Corporate Seal (to be fixed to Signatory Page and Not -For -Profit Corporation Resolution); and g. Copy of PROVIDER's Articles of Incorporation, Charter and Bylaws and amendments thereto, if any, certified by PROVIDER's secretary to be current, complete, and correct; and h. List of Present Principal Governing Board Officers and Members of the Board (names, addresses, and telephone numbers); and i. Provider's Internal Revenue Service and State of Florida tax status letters, the most recent (two years) Internal Revenue Service Form 990 or applicable tax return filing within six (6) months after Provider's fiscal year end or other appropriate filing period permitted by law; and j. If required by applicable law to be filed by Provider, Internal Revenue Service 941 quarterly federal tax return reports within thirty-five (35) calendar days after the quarter ends and if applicable, state and federal payroll and unemployment tax filings and if the 941 payroll and unemployment tax filings reflect a tax liability, proof of payment(s) must be submitted within sixty (60) calendar days after the quarter ends; and k. Copies of all required City, Miami -Dade County, State of Florida, and any other legally required certificates, certifications, licenses, permits, and related fee payments and renewals required for Provider to conduct the Services during the term of this Agreement and any renewal/extension hereof. ARTICLE II 402382 Revised Draft PSA with Belafonte Tacolcy Center 5 2.0.1 DUTY TO OPERATE FOR PUBLIC PURPOSE; DUTY TO COMPLY WITH INTERNAL REVENUE SERVICE RULES AND REGULATIONS REGARDING USES OF BOND -FINANCED FACILITIES. a. Provider shall at all tunes during its provision of the Services set forth in the Work Program/Scope of Services, and as otherwise contemplated by this Agreement and any extension/renewal hereof, maintain an active status in good standing as a Florida non-profit corporation. b. Provider shall work with City at all tunes in a manner that complies with Internal Revenue Service rules and regulations regarding governmental public purpose use of Belafonte Tacolcy Park as a bond -financed facility. Specifically, Provider shall not charge any fees to any individuals or entities for the Services being funded by the City under this Agreement and any extension/renewal hereof and Provider shall not conduct any other businesses or provide any other services at Belafonte Tacolcy Park which would violate IRS restrictions on private trade or business uses (whether by a not -for -profit or a for -profit organization) at governrnental tax- exempt bond -financed facilities. c. Accordingly, the City and Provider by a separate authorization will be updating and entering into an Amendment to the existing Management Agreement of March 11, 2005 regarding Belafonte Tacolcy Park between the City and BTC in order to comply with IRS Safe Harbor Management Agreement Rules. Provider shall not use the City's facilities at Belafonte Tacolcy Park (a) to generate any other income for the Services other than the grant funding revenues to Provider for the Services as set forth in the Budget/Expenditures Attachment II, and/or (b) 402382 Revised Draft PSA with Belafonte Tacolcy Center 6 to subcontract any other services of Provider unrelated to the Work Program/Scope of Services. 2.1 PROJECT PUBLICITY PROVIDER shall abide by affirmative action regulations in informing residents of the geographical area to be served hereunder and of the Services to be offered by utilizing any available means for advertisement, as necessary for promotional activities undertaken by PROVIDER. All newspaper, magazine, television, or radio advertising regarding PROVIDER'S activities will be submitted to CITY for review and approval prior to release or distribution. Provider shall provide the DEPARTMENT with copies of all other literature, publicity and/or promotional materials regarding the Services being provided under this Agreement and any renewal/extension hereof. No press conference regarding the Services being provided by Provider under this Agreement and any renewal/extension hereof shall be scheduled without prior written approval by the CITY. 2.2 PURCHASING AND INVENTORY PROVIDER shall use its best efforts to obtain all supplies and equipment for use under this Agreement and any renewal/extension hereof at the lowest practical costs and shall solicit three (3) bids for the purchase of capital equipment. The three (3) bids shall accompany all requests for payment. Provider shall be responsible to CITY for any damage or destruction of all non -expendable property acquired for the Program with CITY funding (non -expendable property being properties which shall not be consumed or lose identity) and shall reimburse CITY for such damage or destruction. PROVIDER shall establish and maintain a 402382 Revised Draft PSA with Belafonte Tacolcy Center 7 property control system and shall be responsible for maintaining a current inventory on all capital items purchased with CITY funds. All capital expenditures over five hundred dollars ($500.00) must be approved by CITY in writing prior to purchase. All items purchased remain the property of CITY and are to be inventoried as such, which shall include a property record listing the description, model, serial number, date of acquisition, and cost. Such property shall be inventoried semi-annually, and an inventory report submitted to CITY. PROVIDER shall permit CITY staff access to the premises where property is kept for the purpose of performing inventory monitoring functions. PROVIDER shall not dispose of real or personal property purchased with CITY funds through sale, loan, lease, or relocation without receiving prior written approval of the City Manager. 2.3 SUBCONTRACTS AND ANY OTHER TYPES OF AGREEMENTS PROVIDER agrees to give advance written notification of and proposed copies to the CITY of any subcontract(s) and any other types of agreements regarding the work, the Services and/or the City's facilities. None of the work or Services covered by this Agreement shall be subcontracted without the prior written approval of CITY. Any work or Services sub -contracted hereunder or any other agreement in relation hereto shall be subject to the terns and conditions of this Agreement and any renewal/extension hereof, including but not limited to, the audit, inspection, monitoring, insurance, compliance with IRS rules and regulations regarding permitted uses and any limitations on uses of tax-exempt bond -funded facilities, and indemnification provisions hereof. Proper 402382 Revised Draft PSA with Belafonte Tacolcy Center 8 documentation in accordance with the PARKS and CITY Code guidelines and directives must be submitted to and approved by the DEPARTMENT prior to the execution of any subcontract or any other agreement related hereto. The advance notification process shall include the following: A. Identification of the subcontractor and the work and/or Services to be provided.. B. The proposed subcontract, agreement, and all proposed exhibits and attachments thereto, together with a complete and accurate breakdown of the price/costs of Service(s)/work on a component -by -component basis, and all bid documents. C. A copy of the proposed subcontract/agreement to be used and a copy of the final such subcontract/agreement. D. Summary of actions taken to select the subcontractor/service provider. Nothing contained herein shall create any contractual relationship between CITY and any subcontractor/service provider working for PROVIDER and PROVIDER is solely responsible for any and all payments and reimbursements to any and all subcontractor(s)/service provider(s). ARTICLE III 3.0 PROCEDURES 3.1 TIME OF PERFORMANCE The tern of this Agreement shall be from OCTOBER 1, 2013 - September 30, 2014. Subject to the contingency provisions of Section 4.5 hereof, the City shall have the option to renew this Agreement for the same annual amount, for a 402382 Revised Draft PSA with Belafonte Tacolcy Center 9 similar annual program period, and under the same terms and conditions for a two (2) year period subject to the recommendation by the Department and approval by the City Manager. 3.2 CITY AUTHORIZATION Pursuant to Section 18-86(a)(3)(c) of the City Code and the Authorizing Resolution, the City Commission approved the selection of Provider and authorized the City Manager to execute this Agreement, under the terms and conditions set forth herein. For the purpose of this Agreement, the Department shall act on behalf of the CITY in the fiscal control, programmatic monitoring, and modification of this Agreement and of any renewal/extension agreement herefor, except regarding the requirement for approval of the City Manager concerning the option to renew and as otherwise provided by this Agreement. 3.3 ENTIRE AGREEMENT This instrument and its attachments constitute the only Agreement of the parties hereto, relating -to said Services and correctly sets forth the rights, duties, and obligations of each to the other, as of this date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. Furthermore, should any provision, paragraph, sentence, word, or phrase contained in this Agreement and any renewal/extension hereof 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 provision, paragraph, sentence, words or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable to 402382 Revised Draft PSA with Belafonte Tacolcy Center 10 conform with such laws, then same shall be deemed severable, and in either event, the remaining terns and provisions of this Agreement and any renewal/extension hereof shall remain unmodified and in full force and effect. 3.4 OBLIGATIONS OF PROVIDER The PROVIDER shall carry out the Services as prescribed in its Work Program/Scope of Services (which by this reference is incorporated herein and made a part of this Agreement and any renewal/extension hereof as Attachment I) and shall follow the Budget (which by this reference is incorporated herein and made a part of this Agreement and any renewal/extension hereof as Attachment II) and shall maintain the Insurance and Bonding Requirements (which by this reference are incorporated herein and made a part of this Agreement and any renewal/extension hereof as Attachment III) in a lawful, and proper manner, satisfactory to the CITY, in accordance with the requirements as prescribed in this Agreement and any renewal/extension hereof. Provider shall comply with all applicable- federal, state and local laws, ordinances and regulations and Provider shall comply therewith as the same presently exist and as they may be amended from time to time. 3.5 NON`DISCRIMINATION The PROVIDER agrees that it shall not discriminate as to race, sex, color, religion, national origin, age, marital status, disability, or sexual orientation, in connection with its performance under this Agreement. Furthermore, PROVIDER agrees that no otherwise qualified individual shall solely, by reason of his/her race, sex, color, religion, national origin, age, marital status, disability, or sexual 402382 Revised Draft PSA with Belafonte Tacolcy Center 11 orientation, be excluded from the participation in, be denied benefits of, or subject to discrimination under any program or activity receiving federal financial assistance. 3.6 BONDING AND INSURANCE (NEEDS TO BE REVIEWED WITH PARKS Department and RISK MANAGEMENT FOR UPDATE LANGUAGE CHANGES) At all times during the teen of this Agreement and any renewal/extension hereof, PROVIDER shall maintain insurance and bonding coverages acceptable to the CITY's Risk Management Department. Prior to commencing any activity under this Agreement and any renewal/extension hereof, the PROVIDER shall furnish to the CITY original certificates of insurance and bonding or equivalent crime coverage insurance indicating that the PROVIDER is in compliance with the provisions of this article. PROVIDER shall provide the following coverage's on Attachment III "Insurance and Bonding Requirements" hereto and made a part hereof: a) Insurance coverage that reflects sound .business practices acceptable to the CITY's Risk Management Department and that requires Provider and/or Provider's insurance carrier(s), as applicable, to give the CITY prior written notice of any material change(s) in insurance coverage(s), including , but not limited to any renewals of existing insurance policies, not later than thirty (30) days prior to the effective date of making any material change(s) to the insurance coverage, except for ten (10) days for lack of payment changes, termination, cancellation or expiration of insurance policies. 402382 Revised Draft PSA with Belafonte Tacolcy Center 12 b) Fidelity bonding or crime coverage insurance for all persons handling funds received or disbursed under this Agreement and any renewal/extension hereof in an amount equal to, or greater than the amount of the CITY grant. City shall be named as Loss Payee or other designation as applicable. c) Current liability insurance shall be in amount of not less than $2,000,000.00 General Aggregate, which shall include fire liability. CITY shall be named as Primary Additional Insured, and there shall be no exclusions in such policies to override the CITY coverage. d) PROVIDER shall provide the CITY with proof of Automobile Liability Coverage in an amount of not less than $300,000.00 for each driver, Bodily Injury and Property Damage combined, if PROVIDER is to be reimbursed for mileage by the CITY. e) The PROVIDER shall obtain Workers' Compensation and Employers' Liability coverage as per statutory requirements. Compliance with the foregoing requirements shall not relieve the PROVIDER of its liability and obligations under this section, or under any other section of this Agreement and any renewal/extension hereof 3.7 LEVEL OF SERVICE a. Should start-up time for a program be required or any delays in Services occur, PARKS is to be notified in writing immediately, giving all pertinent details and indicating when Services shall begin, and/or continue. It is understood and agreed that the level of Services, activities, and expenditures by the PROVIDER, in existence prior to the initiation of Services hereunder, 402382 Revised Draft PSA with Belafonte Tacolcy Center 13 shall be continued and shall not be reduced in any way, as a result of this Agreement and any renewal/extension hereof. Programs funded through this Agreement and- any renewal/extension hereof shall not result in the displacement of employed workers, impair existing contracts for other services, or result in the substitution of funds allocated under this Agreement and any renewal/extension hereof, for other funds in connection with work, which would have been performed in the absence of this Agreement and any renewal/extension hereof. b. Provider agrees to render the Services in accordance with the Work Program/Scope of Services attached hereto. Provider shall implement the Services in a manner deemed satisfactory to the City. Any modification to the Services shall not be effective until approved in writing by the City and Provider. c. The Services' activities and performance measures, as well as complete and accurate data and programming information, will be used in the evaluation of Provider's overall performance. d. Provider agrees that all funding provided by the City pursuant to this Agreement and any extension/renewal hereof will be used exclusively for Services in and for the benefit of City residents. 3.8 REPORTS, INSPECTIONS, MONITORING, AND EVALUATIONS At the request of CITY or the Departnient, PROVIDER shall transmit to CITY written statements of PROVIDER's official policy on specified issues relating to PROVIDER activities. The PROVIDER shall submit quarterly progress reports, 402382 Revised Draft PSA with Belafonte Tacolcy Center 14 schedules, and any other reports and documentation as the CITY or the Department deems necessary, and which will reflect the status of objectives and program activities accomplished thus far, the level of Services provided thus far, in addition to budget changes and costs expended during the reporting period. PROVIDER shall ensure the cooperation of its employees and Board members in such efforts. The CITY and/or Department staff may conduct inspection and monitoring visits monthly, quarterly; or at random at anytime. Any inconsistent, incomplete, or inadequate information either received by the CITY or the Department, or obtained through inspection, monitoring and evaluation by the CITY or the Department shall constitute good cause for the CITY to terminate this Agreement and any renewal/extension hereof at any time thereafter. 3.9 ACCESS TO RECORDS PROVIDER agrees to provide all financial and other applicable records and documentation of Services to CITY. Provider shall provide access to all records including subcontractor(s) and service agreements, if any, which relate to this Agreement and any extension/renewal hereof, at Provider's 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 City, the City's Auditor General, and/or the Department to insure compliance with applicable programmatic, accounting, and financial standards. This would include access to Provider's independent auditor's working papers for complying with federal, state, and local requirements, including requirements related to uses of tax-exempt bond funded governmental facilities. 402382 Revised Draft PSA with Belafonte Tacolcy Center 15 ARTICLE IV 4.0 FUNDING 4.1 COMPENSATION. AUDIT, AND INSPECTION A. CITY shall pay PROVIDER, an amount not to exceed Eighty-six thousand, six hundred and seventy-five dollars and no cents ($86,675.00) as the maximum compensation for the •Services provided, including any and all expenses incurred during the term of this Agreement. Expenses shall be reimbursed (within the annual tern agreed not to exceed amount of $86,675.00) provided they are properly documented and submitted with sufficient supporting details in accordance with Section 112.061, Florida Statutes, by receipts or invoices and made in accordance with the schedule set forth in the Budget, which is attached hereto and made a part hereof, as may be reasonably required by the City to allow proper audit of Provider's expenses,. should the City, the -City's Auditor- General, or the Department require an audit to be performed. The annual amount for the total of • compensation and expenses for any renewal/extension tern, if any, shall not exceed Eighty-six thousand, six hundred and seventy-five dollars and no cents ($86,675.00) per year. B. During the tern hereof and during any extension/renewal hereof, and for a period of five (5) years following the date of the last payment made hereunder and under any extension/renewal hereof, the CITY, the City's Auditor General, and the Department reserve and shall have the right to 402382 Revised Draft PSA with Belafonte Tacolcy Center 16 review, cause to be reviewed, inspect, cause to be inspected, audit, and/or cause to be audited the information, expenses, time records, accounts, financial records, and related books, files, documents, computer and any other type of records of PROVIDER, pertaining to the Services provided by Provider and/or payments by CITY. Provider agrees to maintain such information, expenses, time records, financial records, accounts, and related books, files, documents, computer, and any other type of records at a location within the City for a period of five (5) years after final payment is made under this Agreement and under any renewal/extension hereof C. All payments shall be reimbursements for expenditures incurred only during the tern of this Agreement and any renewal/extension hereof, and in compliance with the previously approved Line -Item Budget. Such written reimbursement request(s) shall contain a statement declaring and affirming that all expenditures were made in accordance with the approved Budget. All documentation in support -of such reimbursement request shall be subject to approval by CITY at the time the request is made, and all invoices are required to be paid by PROVIDER prior to submission. All reimbursement requests must be in line -item forn, and be in accord with this Agreement. All expenditures must be verified by original receipt or original invoice, with a copy of the check, which was issued to pay that specific receipt or invoice. Within sixty (60) clays of receipt or invoice payment, copies of the canceled checks must be submitted. In the event that a receipt or an invoice is paid by various funding sources, a copy of the receipt or invoice may be 402382 Revised Draft PSA with Belafonte Tacolcy Center 17 submitted, but must indicate the exact amount paid by various funding sources equaling the total of the receipt or invoice. No miscellaneous categories shall be accepted as a line -item in the Budget. Two (2) requests for line -item changes are allowable, with prior review and written approval by the CITY. All line -item changes during the term of this Agreement must be made on or before thirty (30) days prior to the end of the teen of the Agreement. All line item changes during the tern of any renewal/extension hereof must be made on or before thirty (30) days prior to the end of such renewal/extension term. D. Requests for payment should be made on a monthly basis. Reimbursement .requests should be submitted to the CITY within thirty (30) calendar days after the indebtedness has been incurred. Failure to comply may result in the rejection for repayment of those receipts and/or invoices within the reimbursement package, which do not meet this requirement. E. PROVIDER must submit the final request for payment under this Agreement to the CITY within thirty (30) calendar days following the expiration or termination date of this Agreement. Provider must submit the final request for payment under any extension/renewal hereof to the City with thirty (30) calendar days following the expiration or termination of such extension/renewal tern. If the PROVIDER fails to comply with this requirement, all rights to payment will be forfeited, and the CITY shall not honor any request submitted after the aforesaid period. 402382 Revised Draft PSA with Belafonte Tacolcy Center 18 F. Any payment due under this Agreement and under any renewal/extension hereof may be withheld, pending the receipt and approval by the CITY, of all reports due from the PROVIDER as part of this Agreement, any extension/renewal hereof, and any modifications hereto or thereto. G. In order to fund the operations of the Services for the sports development program, upon execution of this Agreement and with a written request from PROVIDER, • CITY may advance one -twelfth •(1/l2th) of the appropriated funds to PROVIDER. The advance shall be credited toward the total annual amount of the funding from the City to Provider for the Services under this Agreement and any extension/renewal hereof as follows: ten (10) equal monthly installments commencing the 1st day of the third month of this Agreement (and if applicable, under a similar installments method for any extension/renewal hereof) and continuing through the twelfth month of this Agreement and if applicable, continuing through the twelfth month of each aimual program period of any extension/renewal hereof). Funds shall not be advanced by the CITY if the. PROVIDER is in default under this Agreement or under any extension/renewal hereof, or if Provider is in default under any other agreement or contract with the City or regarding any other obligation to or requirement of the City. 4.2 FINANCIAL ACCOUNTABILITY a. PROVIDER will establish an operating entity (unique to operating the Work Program and providing the Services described herein) as well as one or more bank accounts through which payments of expenditures, incurred in order to only 402382 Revised Draft PSA with Belafonte Tacolcy Center 19 operate the Work Program and provide the Services described herein, will be made. The said expenditure payments will not be comingled with those from any other operations of PROVIDER or any other affiliated organizations. In addition and/or alternatively, PROVIDER will use an accounting system that will separately provide for a detailed accounting of expenditures (and revenues and/or reimbursement payments as described herein, if applicable) for operating the Work Program and providing the Services described herein. The detailed accounting should not be commingled with the PROVIDER'S other operations; and, should represent actual expenditures against all Line -Item Budget items provided for the Work Program and the Services. b. Provider costs and earnings claimed under this Agreement and any extension/renewal hereof may not also be claimed under any other contract, agreement, service arrangement, or grant from the City or from any other agency. Any claim for double payment by Provider shall be a material breach of this Agreement and any extension/renewal- hereof. Any payment made shall be subject to reduction for amount included in the related invoice, which are found by CITY, on the basis of any audit by the City, the Auditor General, or the Department, not to constitute allowable expenditures. Any payments made to PROVIDER are subject to reduction for overpayments on previously submitted receipts and/or invoices. At the sole discretion of the City Manager, payment may be withheld or reduced for non-compliance of contractual terms. 4.3 RECAPTURE OF FUNDS 402382 Revised Draft PSA with Belafonte Tacolcy Center 20 CITY shall reserve the right to recapture funds when the PROVIDER shall fail (i) to comply with the terms and conditions of this Agreement, (ii) to accept conditions unposed by CITY, at the direction of the federal, state, and local agencies, or (iii) to comply with the terms and conditions of any other agreement or contract with, obligation to, or requirement of the City. 4.4 RELOCATION/DISPLACEMENT OF PROVIDER DUE TO CITY'S ACQUISITION AND DISPOSITION OF REAL PROPERTY The PROVIDER agrees to comply with City of Miami Code, Ordinances and Resolutions, and City policies in relation to the City's acquisition and/or the City's disposition of real property utilizing tax-exempt bond funding, grant or other federal, state, or local government funds, to the provision of services in City parks, and to the displacement of persons, businesses, or non-profit organizations occurring as a direct result of any City acquisition, or City disposition of real property utilizing tax-exempt bond, grant, or other federal, state, or local govermnent funds. 4.5 CONTINGENCY CLAUSE Funding for this Agreement and any extension/renewal hereof is contingent on the availability of funds, and continued authorization for program activities and services, and is subject to amendment or termination due to lack of funds or authorization, reduction of funds, and/or change in regulations. ARTICLE V 5.0 GENERAL REQUIREMENTS 5.1 INDEMNIFICATION 402382 Revised Draft PSA with Belafonte Tacolcy Center 21 PROVIDER shall indemnify, defend and hold harmless the City and its officials, employees, instrumentalities, and agents (collectively referred to as "Indemnities") and each of them from and against any and all losses, costs, penalties, fines, damages, claims, expenses (including attorley's fees) or liabilities (collectively referred as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any of any property arising out of, resulting from, or in connection with (i) the performance or non- performance of the Services contemplated by this Agreement and/or any extension/renewal hereof which is or is alleged to be. directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of PROVIDER or its employees, agents or subcontractors (collectively referred to as "PROVIDER"), regardless of whether, it is, or is alleged to be, caused in whole or in part (whether joint, concurrent or contributing) by any act, omission, default or negligence (whether active or passive) of the Indemnities, or any of them or (ii) the failure of the PROVIDER to comply with any of the paragraphs herein or the failure of the PROVIDER to conform to statutes, ordinances or other regulations or requirements of any governmental authority, local, federal or state, in connection with the performance of this Agreement and/or any extension/renewal hereof. PROVIDER expressly agrees to indemnify, defend, and hold harmless the Indemnities, or any of them, from and against all liabilities which may be asserted by an employee or fonner employee of PROVIDER or any of its subcontractors or of any of its other service providers, as provided above, for which the PROVIDER's liability to such employee or 402382 Revised Draft PSA with Belafonte Tacolcy Center 22 former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. PROVIDER further specifically agrees to indemnify, defend and hold harmless the Indemnities from and against (i) any and all Liabilities imposed on account of the violation of any law, ordinance, order, rule, regulation, condition, or requirement, in any way related, directly or indirectly, to PROVIDER's performance hereunder and/or under any extension/renewal hereof, compliance with which is left by this Agreement and/or by any extension/renewal hereof to the PROVIDER, and (ii) any and all claims, liens and/or suits for labor and materials famished by the PROVIDER or utilized in the performance of this Agreement, any renewal/extension hereof, or otherwise. Where not specifically prohibited by law, PROVIDER further specifically agrees to indemnify, defend and hold harmless the Indemnities from all claims and suits for any liability, including, but not limited to, injury, death, or damage to any person or property whatsoever, cause by, arising .from, incident to, connected with or growing out of the performance or non-performance of this Agreement and/or of any extension/renewal hereof, which is, or is alleged to be, caused in part (whether joint, concurrent or contributing) or in whole by any act, omission, default, or negligence (whether active or passive) of the Indemnities. The foregoing indemnity shall also include liability imposed by any doctrine of strict liability. The foregoing indemnity shall survive the tern of this Agreement and of any extension/renewal hereof. 402382 Revised Draft PSA with Belafonte Tacolcy Center 23 5.2 RENEWAL, EXTENSION, AMENDMENTS, SUPPLEMENTS, OR MODIFICATIONS No renewal, extension, amendments, supplements or modifications to this Agreement shall be binding on either party, unless in writing, and signed by both parties in accordance with their separate authorizing resolutions. 5.3 OWNERSHIP OF DOCUMENTS; PUBLIC RECORDS All documents developed by PROVIDER under this Agreement and/or under any renewal/extension hereof, as applicable, shall be delivered to CITY upon the completion of the Services required pursuant to this Agreement and/or under any renewal/extension hereof, as applicable, and shall become the property of CITY, without restriction or limitation on its use. PROVIDER agrees that all documents maintained and generated pursuant to this relationship between CITY and PROVIDER, shall be subject to all Public Records Law, Chapter 119, Florida Statutes, and agrees to allow access to the City and the public to all documents subject to disclosure under applicable law. It is further understood by and between the parties that any document which is given by CITY to PROVIDER pursuant to this Agreement and/or any renewal/extension hereof, as applicable, shall at all time remains the property of CITY and shall not be used by PROVIDER for any other purposes whatsoever, without the written consent of CITY. Provider's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement and/or any extension/renewal hereof, as applicable. 5.4 AWARD OF AGREEMENT 402382 Revised Draft PSA with Belafonte Tacolcy Center 24 PROVIDER warrants that it has not employed or retained any person employed by the CITY or the Department to solicit or secure this Agreement or any renewal/extension hereof, and that it has not offered to pay, paid, or agreed to pay any person employed by the CITY or the Department any fee, commission percentage, brokerage fee, or gift of any kind, contingent upon or resulting from the award of this Agreement or any renewal/extension hereof. .5.5 NON-DELEGABILITY The obligations undertaken by the PROVIDER pursuant to this Agreement and/or under any extension/renewal hereof, as applicable, shall not be delegated or assigned to any other person, or firm, in whole or in part, without CITY's prior written consent which may be granted or withheld in CITY's sole discretion. 5.6 CONSTRUCTION OF AGREEMENT This Agreement and any extension/renewal hereof shall be construed and enforced according to the laws of the State of Florida. 5.7 CONFLICT OF INTEREST The PROVIDER covenants that no person under its employ, who presently exercises any functions or responsibilities in connection with CDBG or other City -funded activities, has any personal financial interest, direct or indirect, in this Agreement or any extension/renewal hereof. The PROVIDER further covenants that, in the performance of this Agreement and of any extension/renewal hereof, if any, no person having such conflicting interest shall be employed. Any such interests on the part of the PROVIDER or its employees must be disclosed in 402382 Revised Draft PSA with Belafonte Tacolcy Center 25 writing to the CITY prior to the execution of this Agreement and prior to the execution of any renewal/extension hereof. PROVIDER is aware of the conflict of interest laws of the City of Miami (City of Miami Code, Chapter 2, Article V), Dade County, Florida (Dade County Code, • Section 2012-.1), and the State of Florida, and agrees that it shall fully comply in all respects, with the teens of said laws. 5.8 NO OBLIGATION TO RENEW/EXTEND Upon expiration of the teen of this Agreement, PROVIDER agrees and understands that CITY has no obligation to renew or to extend this Agreement. 5.9 TERMINATION OF CONTRACT CITY retains the right to terminate this. Agreement and any renewal/extension hereof at any time prior to the completion of the Services required under this Agreement and/or under any renewal/extension hereof, without penalty to the CITY. In that event, the CITY shall give written notice of termination to PROVIDER, who shall be paid for those Services performed prior to the date of its receipt to the notice of termination. In no case, however, shall CITY pay PROVIDER an amount in excess of the total authorized annual sum provided by this Agreement, pursuant to City Commission Resolution No. adopted 2013. It is hereby understood by, and between CITY and PROVIDER, that any payment made in accordance with this Section to PROVIDER shall be made only if said PROVIDER is not in default under the terns of this Agreement and/or under the terms of any extension/renewal, if 402382 Revised Draft PSA with Belafonte Tacolcy Center 26 applicable. If PROVIDER is in default, then CITY shall in no way be obligated, and shall not pay to PROVIDER any sum whatsoever. 5.10 REMEDIES FOR NONCOMPLIANCE If PROVIDER materially fails to comply with any term of an award and/or an agreement, a contract, any requirement, or any other obligation of Provider to the City, the CITY may take one or more of the following courses of actions: (1) Temporarily withhold cash payments, pending correction of the deficiency by the PROVIDER, or more severe enforcement action by CITY. (2) Disallow (that is, deny both use of funds and matching credit for) all, or part of the cost of the activity or action not in compliance. Wholly, or partly suspend or terminate the current award for the PROVIDER program. Withhold further awards for the program. Debar Provider from participating in other City contracts, services, awards or agreements. (6) Take other remedies that may be legally available. 5.11 GENERAL CONDITIONS A. All notices or other communications which shall or may be given pursuant to this Agreement and/or any renewal/extension hereof 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 on which personally served; or, if by mail, on the fifth day after being posted, or the date of actual receipt, whichever is earlier. (3) (4) (5) 402382 Revised Draft PSA with Belafonte Tacolcy Center 27 CITY OF MIAMI City Manager City of Miami 3500 Pan American Drive Miami, Florida 33133 SUBRECIPIENT Belafonte Tacolcy Center, Incorporated 6161 N.W. 9th Avenue Miami, Florida 33127 Attn: Executive Director With copies to: Director of Parks & Recreation City of Miami 444 S.W. 2nd Avenue, 8th Floor Miami, Florida 33130 City Attorney City of Miami 444 SW. 2nd Avenue, Suite 945 Miami, Florida 33130 B. Title and paragraph headings are for convenient reference, and are not a part of this Agreement nor of any renewal/extension hereof. C. In the event of conflict between the terns of this Agreement, and any terms or conditions contained in any attached documents, the terns of this Agreement shall control. E. No waiver or breach of any provision of this Agreement nor of any extension/renewal hereof 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. F. \ Should any provision, paragraph, sentence, word, or phrase contained in this Agreement or in any extension/renewal hereof 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 402382 Revised Draft PSA with Belafonte Tacolcy Center 28 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 or of any renewal/extension hereof, as applicable, shall remain unmodified and in full force and effect. G. This Agreement and any renewal/extension hereof shall be construed and enforced according to the laws of the State of Florida. Venue for any legal proceedings shall be 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. 5.12 INDEPENDENT CONTRACTOR PROVIDER, its employees, subcontractors, service providers, and agents shall be deemed to be independent contractors, and not agents or employees of the CITY or the Department, and shall not attain any rights, status, or benefits under the Civil Service or Pension Ordinances of the CITY, or any rights, status, or benefits generally afforded classified or unclassified employees, temporary or permanent by virtue of this Agreement or of any extension/renewal hereof. Further, Provider understands that Provider, its employees, subcontractors, and agents shall not be deemed entitled to any of the Florida Worker's Compensation benefits available to employees of the City. In the event of termination of this Agreement or of any extension/renewal hereof, for any reason, with or without cause, neither Provider nor its employees, subcontractors, nor agents shall have any recourse to any City of Miami Grievance or Disciplinary 402382 Revised Draft PSA with Belafonte Tacolcy Center 29 Procedures. Provider acknowledges that access to and use of City property does not alter the status of Provider, its employees, subcontractors, service providers, or agents as independent contractors. Provider further acknowledges that working with the City and/or the Department to provide the necessary scheduling for the Services does not alter the status of Provider, its employees, subcontractors, service providers, or agents as independent contractors. 5.13 SUCCESSORS AND ASSIGNS This Agreement and any extension/renewal hereof shall be binding upon the parties hereto, and their respective heirs, executors, legal representatives, successors, and assigns. ARTICLE VI 6.0 PROVIDER CERTIFICATIONS PROVIDER certifies that: it possesses the legal authority to enter into this Agreement (and covenants that it shall at such applicable time possess the legal authority to enter into any renewal/extension hereof, if any), by way of a resolution, motion, or .similar action that has been duly adopted or passed, as an official act of PROVIDER'S governing body, including all understandings and assurances contained herein, and directing and authorizing the person(s) identified as the official representative(s) of the PROVIDER, to act in connection with this Agreement (and in connection with any future renewal/extension, if any), and to provide such additional information as may be required from time to time by the City, the Auditor General, and/or the Department. 402382 Revised Draft PSA with Belafonte Tacolcy Center 30 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by the respective officials thereunto duly authorized on the first date above written. CITY OF MIAMI, a Florida ATTEST: Municipal Corporation TODD HANNON, CITY CLERK JOHNNY MARTINEZ CITY MANAGER Date: Date: APPROVED AS TO APPROVED AS TO INSURANCE REQUIREMENTS: FORM AND CORRECTNESS: CALVIN ELLIS JULIE O. BRU DIRECTOR OF RISK MANAGMENT CITY ATTORNEY Date: Date: APPROVED BY DEPARTMENT: JUAN A. PASCUAL, DIRECTOR PARKS AND RECREATION ATTEST (CORPORATE SEAL): AGENCY NAME: BELAFONTE TACOLCY CENTER, INCORPORATED, A Florida Not -For -Profit Corporation PRESIDENT CORPORATE SECRETARY Print Name: Print Name: Date: Date: 402382 Revised Draft PSA with Belafonte Tacolcy Center 31 COMPOSITE EXHIBIT 1 Provider's Not -for -Profit Corporation Resolution authorizing execution of this Agreement and a copy of Provider's most recent corporate filing of officers/directors with the Florida Secretary of State 402382 Revised Draft PSA with Belafonte Tacolcy Center 32 NOT -FOR -PROFIT CORPORATION RESOLUTION WHEREAS, the Board of Directors of Belafonte Tacolcy Center, Incorporated, a Florida not -for -profit organization, desires to enter into a Parks and Recreation Services Agreement with the City of Miami for a tern beginning October 1, 2013 and ending September 30, 2014 (the "Agreement"); and WHEREAS, the Board of Directors at a duly held corporate meeting on , 2013 has considered the matter in accordance with the by-laws of the corporations; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS that the President and the Corporate Secretary are hereby authorized and instructed to enter into the Agreement in the name and on behalf of this not -for -profit corporation with the City of Miami upon terns contained in the proposed Agreement to which this Resolution is attached and the President, the Corporate Secretary, the Executive Director and the Program Officer of Belafonte Tacolcy Center, Incorporated are hereby authorized to undertake all actions necessary to fulfill the terns, conditions and obligations of and compliance with the Agreement. DATED this day of , 2013. ATTEST(SEAL) CORPORATE SECRETARY Print Name: 402382 Revised Draft PSA with Belafonte Tacolcy Center PRESIDENT Print Name: 33 EXHIBIT 2 COPY OF CITY OF MIAMI AUTHORIZING RESOLUTION 402382 Revised Draft PSA with Belafonte Tacolcy Center 34 Attachment I Work Program/Scope of Services 402382 Revised Draft PSA with Belafonte Tacolcy Center 35 Attachment II Program Line Item Budget Expenditures/Schedule 402382 Revised Daft PSA with Belafonte Tacolcy Center 36 Attachment III Insurance and Bonding Requirements PARKS & RECREATION SERVICES AGREEMENT BELAFONTE TACOLCY CENTER, INCORPORATED Page 1 of 2 I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Personal and Adv. Injury Products/Completed Operations B. Endorsements Required $1,000,000 $ 2,000,000 $ 1,000,000 $ 1,000,000 City of Miami included as an Additional Insured Employees included as insured Contractual Liability Independent Contractors Coverage Waiver of Subrogation II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 300,000 B. Endorsements Required City of Miami included as an Additional Insured Employees included as insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of Subrogation IV. Employer's Liability 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 $500,000 for bodily injury caused by disease, policy limit 402382 Revised Draft PSA with Belafonte Tacolcy Center 37 Attachment III Insurance and Bonding Requirements PARKS & RECREATION SERVICES AGREEMENT BELAFONTE TACOLCY CENTER, INCORPORATED Page 1 of 2 V. Professional Liability/Errors and Omissions Coverage Combined Single Limit Each Claim General Aggregate Limit Deductible- not to exceed 10% VI Crime Coverage (in lieu of Fidelity Bond) A. Limits of Liability Employee Dishonesty Including Third Party Forgery and Alteration $ 1,000,000 $ 2,000,000 $ 86,675.00 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, Oldvvick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 402382 Revised Draft PSA with Belafonte Tacolcy Center 38