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HomeMy WebLinkAboutBackup DocumentPROGRAMMING PARTNERSHIP AGREEMENT NO. BETWEEN THE CITY OF MIAMI, FLORIDA AND FOR THIS AGREEMENT is between the City of Miami, a Florida municipal corporation, hereafter "City", whose address Is 444 Southwest 2"d Avenue, Miami, Florida 33130 and , a Florida Not -For -Profit Corporation, hereafter "Programming Partner", whose address is In consideration of the mutual covenants herein, the City and Progranuning Partner (sometimes hereafter referred to as "Parties") agree as follows: A. EFFECTIVE TERM The effective term of this Agreement shall be from and the Programming Partner's performance. B. TERMS OF RENEWAL (If Applicable) through , subject to funding availability In the sole discretion of the City, this Agreement may be renewed with the acknowledgement of the Programming Partner. In considering the exercise of any agreement renewal, and in accordance with the Request for Proposal (RFP), if applicable, and Miami City Commission authorization, renewal may not exceed a term equal to the term of the initial agreement for a total maximum of U terms or fifteen (15) years, whichever occurs first. The City in its sole discretion will consider, but is not limited to, the following: 1. Programming Partner meeting the performance requirements specified in this Agreement. 2. Continued demonstrated and documented need for the programming funded. 3. Program performance, fiscal performance, and compliance by the Programming Partner that is deemed satisfactory in the City's sole discretion. 4. The availability of funds. 5. If applicable, the City in its sole discretion will initiate re -negotiation of this Agreement before the agreement term expires. 6. The Programming Partner's performance under any other agreement with the City. C. SCOPE OF SERVICES 1. The Programming Partner agrees to render progranuning in accordance with the Scope of Services, Attachment A, hereafter "Programming", to this Agreement. The Programming Partner shall implement the Programming in a manner deemed satisfactory to the City. Any modification to the Programming shall not be effective until approved, in writing, by the City and the Programming Partner. 2. The Programing activities and performance measures, as well as complete and accurate data and programming information will be used in the evaluation of the Programming Partner's overall performance. 3. The Programming Partner agrees that all funding provided by the City, pursuant to this Agreement will be used exclusively for programming in and for the benefit of City and Miami -Dade County residents. D. TOTAL FUNDING Subject to the availability of funds, the maximum amount payable for Programming rendered under this Agreement shall not exceed $ . The Programming Partner agrees that should available funding to the City be reduced, the amount payable under this Agreement will be reduced at the sole option of the City. The Programming Partner agrees to adhere to Attachment B of this Agreement: Other Fiscal Requirements, Budget and Method of Payment. E. FISCAL MANAGEMENT Double Billing and Payments Programming Partner costs or earnings claimed under this Agreement may not also be claimed under any other agreement, contract or grant from the City or, unless such claim is denied by the City, from any other agency. Any claim for double payment by the Programming Partner shall be a material breach of this Agreement. 2. No Supplanting of Existing Public Funds City funding may not be used as a substitute for existing resources or for resources that would otherwise be available for Programming, or to replace funding previously provided by, and currently available from, local and state funding sources for the same purpose. A violation of this section by the Progranuning Partner shall be considered a material breach of this Agreement. 3. Purchasing and Capital Equipment The Programming Partner shall use its best efforts to obtain all supplies and equipment for use under this Agreement 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. All capital equipment acquired by the Programming Partner equal to or greater than five hundred dollars ($500.00), and reimbursed by the City, shall first be approved by the City in writing prior to purchase. All capital equipment acquired by the Programming Partner using City funds shall be the property of the City and are to be inventoried as such. The Programming Partner shall establish and maintain a capital equipment control system, which shall include a property record listing the description, model, serial number, date of acquisition, and cost. All capital equipment shall be inventoried semi-annually, with an inventory report provided to the City. The Programming Partner shall permit City staff access to the capital equipment for the purpose of performing inventory monitoring. The Programming Partner shall reimburse the City for any and all damage or destruction to capital equipment purchased using City funds that is not fully depreciated. Any or all such qualifying capital equipment shall be returned to the City, or its designee(s) upon request. Should this Agreement be subject to termination or early cancellation, the City shall immediately acquire possession of all reimbursed capital equipment that is not fully depreciated. The Programming Partner 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. The Programming Partner is to maintain proof of Property Coverage in accordance with the insurance requirements prescribed in section K and Attachment F of this Agreement. 4. Assignments and Subcontracts The Programming Partner shall not assign this Agreement to another party. The Programming Partner shall not subcontract any Programming under this Agreement without written prior approval of the City. In any subcontract, the Programming Partner shall incorporate appropriate language from this Agreement into each subcontract and shall require each subcontractor providing programming to be governed by the terms and conditions of this Agreement. The Programming Partner shall submit to the City a copy of each subcontract to this Agreement within thirty (30) days of its execution. All subcontracts with the Programming Partner must be executed within thirty (30) days of the Programming Partner's execution date. All subcontractors are subject to monitoring by the Programming Partner and/or the City, in the same manner as the Programming Partner under the terms of this Agreement. The Programming Partner acknowledges and agrees that the City and any subcontractor to this Agreement have authority to communicate and exchange information about agreement, program and/or fiscal issues. The Programming Partner waives any and all claims, demands, and/or legal action based upon any such communications The Programming Partner shall be responsible for all Programming performed, and all expenses incurred, under this Agreement, including programming provided and expenses incurred by any and all subcontractors. The City shall not be liable to any subcontractor for any reimbursable expenses or liabilities incurred under any subcontract. The Programming Partner shall be solely liable for any expenses or liabilities incurred under any subcontract. The Programming Partner shall hold harmless and defend, at the Programming Partner's expense, the City against any claims, demands or actions related to any subcontract. The City shall not provide funds to any subcontractor unless specifically agreed to in writing by the City with notification to the Programming Partner. All payments to any contracted subcontractor shall be paid directly by the Programming Partner to the subcontractor. The City reserves the right to require verification from the Programming Partner and/or subcontractor of payment due for satisfactory work performed by the subcontractor. The Programming Partner and any subcontractor must be currently qualified to conduct business in the State of Florida and must have the required licenses and permits required to do business in the City at the time that a subcontractor agreement is entered into and programming is rendered. 5. Religious Purposes The Programming Partner and/or their faith -based community partners shall not use any funds provided under this Agreement to support any inherently religious activities, including but not limited to, any religious instruction, worship, proselytization, publicity or marketing materials. Any such use by the Programming Partner shall be a material breach of this Agreement. 6. Lobbying The Programming Partner shall not use any funds provided under this Agreement or any other funds provided by the City for lobbying any federal, state or local government or legislators. Any such use by the Programming Partner shall be a material breach of this Agreement. 7. Adverse Action or Proceeding The Programming Partner shall not use any funds under this Agreement, or any other funds provided by the City, for any legal fees, or for any action or proceeding against the City, its agents, employees or officials. Any such use by the Programming Partner shall be a material breach of this Agreement. 8. Compliance The Programming Partner agrees to maintain and ensure its compliance, as applicable, with federal, state, county, and local laws. This includes, but is not limited to, maintaining an active status in good standing as a Florida No -For -Profit Corporation, adherence to IRS rules and regulations requiring timely filing of tax documents to maintain tax-exempt status, as well as IRS rules and regulations, and other grant funded ongoing compliance requirements, pertaining to the use of City park and recreation facilities. F. INDEMNIFICATION BY PROGRAMMING PARTNER The Programming Partner shall indemnify, defend, and hold harmless the City and its officers, officials, employees, agents and instrumentalities from any and all liability, losses or damages, including reasonable attorneys' fees and costs of defense, which the City or its officers, officials, employees, agents or instrumentalities may incur as a result of claims, demands, suits, causes of action or proceedings of any kind or nature arising out of, relating to or resulting from the performance of this Agreement by the Programming Partner or its employees, agents, servants, partners, principals or subcontractors, except to the extent arising from the City's willful or wanton acts or omissions. To the extent arising from a liability that is covered by the foregoing indemnification, the Programming Partner 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, where applicable, including appellate proceedings, and shall pay all costs, judgments, and reasonable attorney's fees which may issue thereon. The Programming Partner agrees that any insurance protection required by this Agreement or otherwise provided by the Programming Partner shall in no way limit the responsibility to indemnify, keep and save harmless and defend the City or its officers, officials, employees, agents and instrumentalities. The provisions of this section on indemnification shall survive the expiration or termination of this Agreement. G. COPYRIGHTS AND RIGHT TO DATA/MATERIALS Where activities supported by this Agreement produce original writing, data, sound recordings, pictorial reproductions, drawings or other graphic representations and works of similar nature, the City has a license to reasonably use, duplicate and disclose such materials in whole or in part in a manner consistent with the purposes and terms of this Agreement, and to have others acting on behalf of the City to do so, provided that such use does not compromise the validity of any copyright, trademark or patent. If the data/materials so developed are subject to copyright, trademark or patent, 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 Programming Partner or with any applicable third party who has licensed or otherwise permitted the Programming Partner to use the same. The Programming Partner agrees to allow the City and others acting on behalf of the City to have reasonable use of the same consistent with the purposes and teens of this Agreement, at no cost to the City, provided that such use does not compromise the validity of such copyright, trademark or patent. H. OWNERSHIP AND LICENSING OF INTELLECTUAL PROPERTY This Agreement 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 Programming Partner retains sole ownership of intellectual property developed under this Agreement. The Programming Partner is responsible for payment of required licensing fees if intellectual property owned by other parties is incorporated by the Programming Partner into the services required under this Agreement. Such licensing should be in the exclusive name of the Programming Partner. Payment for any licensing fees or costs arising from the use of others' intellectual property shall be at the sole expense of the Programming Partner. The Programming Partner shall indemnify and hold the City harmless from liability of any nature or kind, including costs and expenses for or on account of third party allegations that use of any intellectual property owned by the third party and provided, manufactured or used by the Programming Partner in the performance of this Agreement violates the intellectual property rights of that third party. I. BREACH OF CONTRACT AND REMEDIES 1. Breach A material breach by the Programming Partner shall have occurred under this Agreement if the Programming Partner through action or omission causes any of the following: a. Fails to comply with Background Screening, as required under this Agreement; b. Fails to provide the Programming outlined in the Scope of Services (Attachment A) within the effective term of this Agreement; c. Fails to correct an imminent safety concern or take acceptable corrective action; d. Ineffectively or improperly uses the City's funds allocated under this Agreement; e. Does not furnish and maintain the certificates of insurance required by this Agreement or as determined by the City; f. Does not meet or satisfy the conditions of award required by this Agreement; g. 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; included, but not limited to budgets, invoices, and amendments; h. Does not submit or submits incomplete or incorrect required reports pursuant to the Scope of Services (Attachment A), as well as elsewhere in this Agreement; i. Refuses to allow the City access to records or refuses to allow the City to monitor, evaluate and review the Programming Partner's program; j. Fails to comply incident reporting requirements; k. Attempts to meet its obligations under this Agreement through fraud, misrepresentation or material misstatement; 1. Fails to correct deficiencies found during a monitoring, evaluation or review within a specified reasonable time; m. Fails to meet the terms and conditions of any obligation or repayment schedule to the City or any of its agencies; n. Fails to maintain the confidentiality of participant files, pursuant to Florida and federal laws; and o. Fails to fulfill in a timely and proper manner any and all of its obligations, covenants, contracts and stipulations in this Agreement. Waiver of breach of any provisions of this Agreement 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. 2. Remedies If the Programming Partner fails to cure any breach of this Agreement within thirty (30) days after receiving written notice from the City identifying the breach, the City may pursue any or all of the following remedies: a. The City may, at its sole discretion, enter into a written performance improvement plan with the Programming Provider to cure any breach of this Agreement as may be permissible under state or federal law. Any such remedial plan shall be an addition to this Agreement and shall not affect or render void or voidable any other provision contained in this Agreement, costs, or any judgments entered by a court of appropriate jurisdiction. b. The City may suspend payment in whole or in part under this Agreement by providing written notice of suspension to the Programming Partner and specifying the effective date of suspension, at least five (5) business days before the effective date of suspension. On the effective date of suspension, the Programining Partner may (but shall not be obligated to) continue to perform the Programming in this Agreement, but the Programming Partner shall promptly cease using the City's logo, seal and/or any other reference to the City in connection with such Services. All payments to the Programming Partner as of the date of suspension shall cease, except that the City shall continue to review and pay verifiable requests for payment for Programming that were performed and/or for deliverables that were substantially completed at the sole discretion of the City, prior to the effective date of such suspension. The City may also suspend any payments in whole or in part under any other agreements entered into between the City and the Programming Partner by providing separate written notice to the Programming Partner of each such suspension and specifying the effective date of suspension, which must be at least five (5) business days before the effective date of such suspension, in any event the City shall continue to review and pay verifiable requests for payment as provided for in such other agreements for services that were performed and/or for deliverables that were substantially completed at the sole discretion of the City prior to the effective date of such suspension. The Progranuning Partner shall be responsible for all direct and indirect costs associated with such suspension including reasonable attorney's fees. c. The City may terminate this Agreement by giving written notice to the Programming Partner of such termination and specifying the date of termination at least five (5) business days before the effective date of termination. In the event of such termination, the City may (a) request the Programming Partner to deliver to the City clear and legible copies of all finished or unfinished documents, studies, surveys, reports prepared and secured by the Programming Partner with City funds under this Agreement subject to the rights of the Programming Partner as provided for in Paragraphs G and H above; (b) seek reimbursement of any City funds which have been improperly paid to the Programming Partner under this Agreement; (c) terminate further payment of City funds to the Programming Partner under this Agreement, except that the City shall continue to review and pay verifiable requests for payment for Programming that was perfonned and/or deliverables that were substantially completed at the sole discretion of the City prior to the effective date of such termination; and/or (d) terminate or cancel, without cause, any other agreements entered into between the City and the Programming Partner by providing separate written notice to the Programming Partner of each such termination and specifying the effective date of termination, which must be at least five (5) business days before the effective date of such tennination, in which event the City shall continue to review and pay verifiable requests for payment as provided for in such other agreements for services that were performed and/or for deliverables that were substantially completed at the sole discretion of the City prior to the effective date of such termination. The Progranuning Partner shall be responsible for all direct and indirect costs associated with such termination, including reasonable attorney's fees. d. The City may seek enforcement of this Agreement including but not limited to filing an action with a court of appropriate jurisdiction. The Programming Partner shall be responsible for all direct and indirect costs associated with such enforcement, including reasonable attorney's fees, costs, and any judgments entered by a court of appropriate jurisdiction, including all direct and indirect costs and reasonable attorneys' fees through conclusion of all appellate proceedings, and including any final settlement or judgment. e. The provisions of this Paragraph I shall survive the expiration or termination of this Agreement. J. TERMINATION BY EITHER PARTY The Parties agree that this Agreement may be terminated by either party by written notice to the other party of intent to terminate at least thirty (30) calendar days prior to the effective date of such termination. K. BONDING AND INSURANCE REQUIREMENTS Prior to, or on the date commencing the effective term of this Agreement, the Programming Partner's insurance agent(s) shall provide, as applicable, to the City's Risk Management Department original certificates of Insurance naming the City as an additional insured and the certificate holder on all applicable policies. Failure by the Programing Partner to comply with Section K and Attachment F of this AgTreement shall be a material breach of this Agreement. The City will not disburse any funds under this Agreement until all required Certificates of Insurance have been provided to and have been approved by the City. 1. Bonding and Insurance Requirements Provider will carry insurance policies in the amounts, and with the requirements, set forth below and in Attachment F of the Agreement. Insurance requirements reflect sound business practices acceptable to the City's Risk Management Department. a. Fidelity bonding or crime coverage insurance for persons handling funds received or disbursed under this Agreement in an amount equal to, or greater than the amount provided by the City. The City shall be named a Loss Payee or other designation, as applicable. b. Worker's Compensation Insurance covering all employees, non -incorporated independent contractors or consultants, and incorporated independent contractors or consultants that do not have worker's compensation coverage or a valid State of Florida exemption on file with the Department of Labor, as required by Florida Statutes, Chapter 440. In the event that the Programming Partner is no longer exempt from obtaining Worker's Compensation insurance, the Programming Partner must notify the City and provide the necessary certificate of insurance upon the termination of the exemption. The employer's liability portion will be $ STATUTORY as a minimum. c. Con-unercial General Liability insurance, to include sexual molestation and fire, in an amount not less than $_1,000,000 combined single limit per occurrence and $ 2,000,000 aggregate in a policy year. Deductibles exceeding $ NA are discouraged, unless Provider can provide financial statements to support a higher deductible. The City must be designated and shown as a Primary Additional Insured and the certificate holder with respects to this coverage. The general liability policy must contain coverage for the following: • Bodily Injury; • Property Damage; • No exclusions for Abuse, Molestation or Corporal Punishment; • No endorsement for premises only operations. e. Automobile liability coverage for all owned and/or leased vehicles of the Programming Partner and non - owned coverage for their employees and /or sub -contractors not transporting program participants. The minimum amount of coverage is $ 1,000,000 combined single limit per occurrence for bodily injury and property damage. The City of Miami must be designated and shown as an "Additional Insured as Their Interest May Appear" with respects to this coverage. Coverage can be purchased as non -owned without hired auto coverage when the cost is prohibitive for hired automobile coverage such as the case with the Florida Automobile Joint Underwriting Association; but rental cars cannot be used in the course of the Programming Partner's operations. Rental cars may be used for travel to attend conferences outside the tri -county area. f. If applicable, Special Events Coverage, as determined by the City. The liability coverage will be the same as the coverage and limits required for comprehensive general liability and the City of Miami must be designated and shown as "Additional Insured as Their Interest May Appear." Special Events policies are for short term functions and not meant to replace annual liability policies. The coverage is for the day or days of the event and must provide coverage the day prior and the day following the event. g. If applicable, Professional Liability insurance, as determined by the City, with coverage amounts determined by the City but not less than $ 1,000,000_ per claim and in the aggregate. Defense costs may be inside the limits of liability and the policy can be written on claims made form. The City is not required to be named as an Additional Insured. Professional liability insurance is generally required when the scope of services uses professional services that require certification or license(s) to provide direct services to program participants. h. Proof of Property Coverage is required when the Programming Partner has capital equipment owned by the City and said capital equipment is under the care custody and control of the Programming Partner. The City must be shown on the evidence of property coverage as a Loss Payee. Property coverage shall survive the expiration or termination of this Agreement until such time the ownership of the capital equipment is transferred to the Programming Partner or such capital equipment is returned to the City. 2. Certificate Holder Certificate holder must read: The City of Miami, Florida C/o Risk Management Department 444 S.W. 2" Avenue, 9" Floor Miami, Florida 33130 And 3. 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 reasonable approval of the City. The Programming Partner and/or the Programming Partner's insurance agent, as applicable, shall notify the City, in writing, of any material 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 of making any material changes to the insurance coverage except for ten (10) days for lack of payment changes. The Programming Partner shall be responsible for ensuring that all applicable insurances are maintained and submitted to the City for the duration of this Agreement. In the event of any change in the Prograrmning Partner's Scope of Services (Attachment A), the City may increase, waive or modify, in writing any of the foregoing insurance requirements. Any request by the Programming Partner to decrease, waive or modify any of the foregoing insurance requirements shall be approved, in writing, by the City to any such decrease, waiver or modification. In the event that an insurance policy is canceled, lapsed or expired during the effective period of this Agreement, the City shall withhold all payments to the Programming Partner until a new Certificate of Insurance required under this section is submitted and approved by the City. The new insurance policy shall cover the time period commencing from the date of cancellation of the prior insurance policy. The City may require the Programming Partner to furnish additional and different insurance coverage, or both, as may be required from time to time under applicable federal or state laws or the City requirements. Provision of insurance by the Programming Partner, in no instance, shall be deemed to be a release, limitation, or waiver of any claim, cause of action or assessment that the City may have against the Programming Partner for any liability of any nature related to performance under this Agreement or otherwise. All insurance required hereunder may be maintained by the Programming Partner pursuant to a master or blanket policy or policies of insurance. L. PROOF OF TAX STATUS The Programming Partner is required to keep on file the following documentation for review by the City: 1. The Internal Revenue Service (IRS) tax status determination letter, if applicable; 2. The most recent (two years) IRS form 990 or applicable tax return filing within six (6) months after the Programming Partner's fiscal year end or other appropriate filing period pennitted by law; 3. IRS form 941: employer's quarterly federal tax return. If required by the City, the Programming Partner agrees to submit form 941 within thirty (30) calendar days after the quarter ends and if applicable, any state and federal unemployment tax filings. If form 941 and unemployment tax filings reflect a tax liability, then proof of payment must be submitted within sixty (60) calendar days after the quarter ends; and 4. Programming Provider's Article of Incorporation, Charter and Bylaws, and amendments thereto, if any, certified by the Programming Partner's Secretary to be current, complete and correct. lumall M[yM All notices or other communication which shall or may be given pursuant to this Agreement shall be in writing, and shall be delivered by personal service or by registered mail to the other Party at the addresses indicated below. Such notice shall be deemed given on the day on which personally served or, if by registered mail, on the fifth (5) day after mailing or the date of actual receipt, whichever is earlier. It is each Party's responsibility to advise the other Party in writing of any changes in mailing address or personnel responsible for accepting Notices under this Agreement. CITY OF MIAMI PROGRAMMING PARTNER City Manager City of Miami 3500 Pan American Drive Miami, Florida 33132 With copies to: Director of Parks and Recreation City of Miami 444 SW 2"d Avenue, 8`1' Floor Miami, Florida 33130 City Attorney City of Miami 444 SW 2' Avenue, Suite 945 Miami, Florida 33130 N. AUTONOMY The Parties agree that the Programming Partner and its employees, agents, servants, partners, principals and subcontractors are independent contractors, and not agents or employees of the City. They 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 pennanent, by virtue of this Agreement. Further, the Programming Partner and its employees, agents, servants, partners, principals and subcontractors shall not be entitled to any of the Florida Worker's Compensation benefits available to employees of the City. In the event this Agreement is terminated, with or without cause, neither the Programming Partner nor its employees, agents, servants, partners, principals and subcontractors shall have recourse to any City grievance or disciplinary procedures. Access to, and use of, City park and recreation facilities does not alter the status of the Programming Partner and its employees, agents, servants, partners, principals and subcontractors as independent contractors. O. RECORDS, REPORTS, AUDITS AND MONITORING The provisions of this section shall survive the expiration or termination of this Agreement, consistent with Florida laws. 1. Accounting Records The Programming Partner shall keep accounting records that conform to generally accepted accounting principles (GAAP). All such records will be retained by the Programming Partner for not less than three (3) years beyond the last date that all applicable terms of this Agreement have been complied with, final payment has been received and prograin specific audits have been completed by the City. However, if any audit, claim, litigation, negotiation or other action involving this Agreement or modification hereto has commenced before the expiration of the retention period, then 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, whichever is later. 2. Program Specific Audit City reserves the right to audit the records of the Programming Partner at any time during the performance of the Agreement, and for a period not less than three (3) years beyond the last date that all applicable terms of this Agreement have been complied with and final payment has been received. The Programming Partner agrees to provide to the City all financial and other applicable records and documentation relevant to the Programming provided pursuant to this Agreement. All payments made to the Programming Partner are subject to reduction for overpayments on previously submitted receipts and/or invoices. 3. Access to Records The Programming Partner shall permit access to all records including subcontractor records, which relate to this Agreement at its place of business during regular business hours. The Programming Partner agrees to deliver such assistance as may be necessary to facilitate a review or audit by the City to ensure compliance with the terms of this Agreement. The City reserves the right to require the Programming Partner to submit to an audit by an auditor of the City's choosing and at the City's expense. 4. Monitoring The Programming Partner agrees to permit the City's personnel or contracted agents to perform random scheduled and/or unscheduled monitoring's, reviews and evaluations of the Programming which is the subject of this Agreement, including any subcontracts under this Agreement. The City shall monitor both fiscal/administrative and programmatic compliance with all the terms and conditions of the Agreement. The Programming Partner shall permit the City to conduct site visits, participant interviews, participant assessment surveys, fiscal/administrative review and other assessments deemed reasonably necessary at the City's sole discretion to fulfill the monitoring function. A report of monitoring findings will be delivered to Programming Partner and the Programming Partner will remedy all deficiencies cited within the period of time specified in the report. 5. Participant Records The Programming Partner shall maintain a separate file for each program participant. This file shall include all pertinent infonnation regarding program enrollment and participation. At a minimum, the file will contain enrollment information (including parent registration consents and child demographics), and notes documenting referrals, special needs, or incident reports. These files shall be subject to the monitoring/review and inspection requirements under this Agreement, subject to applicable confidentiality requirements. All such records will be retained by the Programming Partner for not less than three (3) calendar years after the program participant is no longer enrolled. The Programming Partner agrees to comply with all applicable state and federal laws on privacy and confidentiality. 6. Internal Documentation/Records Retention Provider agrees to maintain and provide for inspection to the City, during regular business hours the following as may be applicable: (1) personnel files of employees which include hiring records, background screening affidavits, job descriptions, verification of education and evaluation procedures; (2) authorized time sheets, records and attendance sheets to document the staff time billed to provide Programming pursuant to this Agreement; (3) program participant consent and information release forms; (4) City policies and procedures; and (5) such other information related to Programming as described in Attachment A or as required by this Agreement. The Programming Partner shall retain all records for not less than three (3) years beyond the last date that all applicable terms of this Agreement have been complied with and final payment has been received, and program specific audits have been completed by the City. 7. Public Records Programming Partner understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City Agreements, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable laws. Programming Partner's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. The Programming Partner shall specifically require all sub -contractors to comply with this paragraph. Programming Partner shall additionally comply with Section 119.0701, Florida Statutes, including without limitation: (1) keep and maintain public records required by the City to perform this service; (2) upon request from the City's custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected within a reasonable time at a cost that does not exceed the cost provided for in Chapter 119, or otherwise provided by law; (3) ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the Agreement term and following completion of the Agreement if the Programming Partner does not transfer the records to the City; and (4) provide to the City all electronically stored public records, upon request from the City's custodian of public records, in a format compatible with the City's information technology systems. Upon completion of the Agreement, transfer, at no cost, to the City all public records in possession of the Programming Partner or keep and maintain public records required by the City to perform the service. If the Programming Partner transfers all public records to the City upon completion of the Agreement, the Programming Partner shall destroy any duplicate public records that are exempt or confidential and exempt from disclosure requirements. If the Programming Partner keeps and maintains public records upon completion of the Agreement, the Programming Partner shall meet all applicable requirements for retaining public records. Notwithstanding the foregoing, Programming Partner shall be permitted to retain any public records that make up part of its work product solely as required for archival purposes, as required by law, or to evidence compliance with the terms of the Agreement. Should Programming Partner determine to dispute any public access provision required by Florida Statutes, then Programming Partner shall do so at its own expense and at no cost to the City. IF THE PROGRAMMING PARTNER HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE PROGRAMMING PARTNER'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT 305-416-1800, PublieRecordsramiamigov.com, CITY OF MIAMI PUBLIC RECORDS, C/O THE OFFICE OF THE CITY ATTORNEY, MIAMI RIVERSIDE CENTER, 444 S.W. 2ND AVENUE, MIAMI, FLORIDA 33130. P. MODIFICATIONS Any amendments, alterations, variations, modifications, extensions or waivers to this Agreement 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. Except for changes to the total not to exceed amount payable and changes to the length of the effective term, the City Manager is authorized pursuant to City Commission Resolution No. adopted on to negotiate and execute all necessary amendments, extensions, renewals or modifications of this Agreement. Any changes to this Agreement to change the total not to exceed amount payable and/or to change the length of the effective term shall require further City Commission approval(s). Q. GOVERNING LAW & VENUE This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. Any controversies or legal problems arising out of the terms of this Agreement and any action involving the enforcement or interpretation of any rights hereunder shall be submitted to the jurisdiction of the state courts of the Eleventh Judicial Circuit, in and for, Miami -Dade County, Florida. The Parties agree to bear their own attorney's fees and irrevocably waive any rights to a jury trial. R. STAFF AND VOLUNTEER BACKGROUND CHECK REQUIREMENTS All employees, agents, servants, partners, principals and subcontractors of the Programming Partner who work in direct contact with children, the elderly, or individuals with disabilities or who may come into direct contact with children, the elderly, or individuals with disabilities at the City park and recreation facility listed in Scope of Services (Attachment A) must complete a Level 2 background screening that complies with its requirements prior to commencing work pursuant to this Agreement. This requirement also applies to all volunteers who provide services to children, the elderly, or individuals with disabilities regardless of the number of volunteer hours they provide. Occasional or transient repair or maintenance persons who appear on the site should be escorted to their work areas and then supervised during the time they are present to conduct their work. Level 2 Background screenings must be completed through the Florida Department of Law Enforcement (FDLE) VECHS (Volunteer & Employee Criminal History System) Program. Satisfactory background screening documentation will be accepted from those entities that already conduct business with the Department of Children and Families (DCF), the Department of Juvenile Justice (DJJ), Department of Elder Affairs (DOEA) or the Miami Dade County Public School System (MDCPS). A clearance letter from the MDCPS Office of Professional Standards indicating the person has successfully completed a Level 2 screening will be accepted. If background screenings are completed with VECHS, then the Programming Partner shall complete Attachment D "Affidavit of Level 2 Background Screenings" for each Agreement term. The Programrning Partner shall re -screen each employee, agent, servant, partner, principal and subcontractor every five (5) years. All Programming Partners are required to review annually, at minimum, The Dru Sjodin National Sex Offender Public Website. S. PERSONS WITH DISABILITIES AND THEIR FAMILIES The Programming Partner understands that the City expects the Programming Partner to meet the federal standards under the Americans with Disabilities Act. By policy of the City, the Programming Partner's must also implement reasonable programmatic accommodations to include persons with disabilities and their families, whenever possible. Notwithstanding anything to the contrary, the Programming Partner shall not be required to make any alteration to any City park or recreation facility or other building or structure which is not owned by the Programming Partner. T. REGULATORY COMPLIANCE Non -Discrimination and Civil Rights The Programming Partner shall not discriminate against an employee, volunteer, agent, servant, partner, principal, subcontractor or participant of the Programming Partner 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, if applicable, or the Scope of Services (Attachment A). The Progranuning Partner shall demonstrate that it has standards, policies, and practices necessary to render programming 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. The Programming Partner agrees to abide by Chapter 11 A 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 6101, 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. §12101 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 shall have the right to terminate all or any portion of this Agreement. If the Programming Partner or any owner, subsidiary, or other firm affiliated with or related to the Programming Partner, 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 City will conduct no further business with the Programming Partner. 2. Conflict of Interest The Programming Partner represents that the execution of this Agreement does not violate the City's Conflict of Interest Code, Miami Dade County's Conflict of Interest and Code of Ethics Ordinance, and Florida Statutes § 112 as amended, which are incorporated herein by reference as if fully set forth herein. The Programming Partner agrees to abide by and be governed by these conflict of interest provisions throughout the course of this Agreement and in connection with its obligations hereunder. 3. Licensing The Programming Partner (and subcontractor, as applicable,) shall obtain and maintain in full force and effect during the term of this Agreement any and all licenses, certifications, approvals, insurances, permits and accreditation, required by the City, Miami -Dade County, State of Florida, or the federal government. The Programming Partner must be qualified and registered to do business in the State of Florida both prior to and during the Agreement terns with the City. 4. Incident Reporting An incident is defined as any actual or alleged event or situation that creates a significant risk of substantial or serious harm to the physical or mental health, safety or well-being of a program participant. Reportable incidents include, but are not limited to, allegations of abuse, neglect or exploitation of a child, aged person or individual with a disability, injury of a program participant, loss of property used for the program, or destruction of property used in the program. The Programming Partner shall immediately report knowledge or reasonable suspicion of abuse, neglect, or abandonment of a child, aged person, or individual with a disability 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 Programming Partner and its employees, agents, servants, partners, principals and subcontractors. The Programming Partner shall notify the City of any incident as defined within three (3) days after the Programming Partner is informed of such incident. The Programming Partner shall provide written notification of the incident together with a copy of an incident report. The report must contain the following: a. Name of reporter (person giving the notice); b. Name and address of victim and guardian, if applicable; c. Phone number where the reporter can be contacted; d. Date, time, and location of incident; and e. Complete description of incident and injuries, if any. Police report and actions taken shall be submitted to the City within fifteen (15) days of the incident. The Programming Partner shall provide written notification to the City, within seven (7) days of any legal action related to the incident. 5. Sexual Harassment The Programming Partner shall complete an incident report in the event a program participant, employee, agent, servant, partner, principal or subcontractor makes an allegation of sexual harassment, sexual misconduct or sexual assault by another program participant, employee, agent, servant, partner, principal or subcontractor arising out of the performance of this Agreement and the Programming Partner has knowledge thereof. The Programming Partner shall provide written notification to the City within three (3) business days after the Programming Partner is informed of such an allegation. The Programming Partner shall provide written notification to the City, within seven (7) business days, if any legal action which is filed as a result of such an alleged incident. 6. Proof of Policies The Programming Partner and subcontractor, as applicable, shall keep on file copies of its policies including but not limited to confidentiality, incident reporting, sexual harassment, non-discrimination, equal opportunity and/or affirmative action, Americans with Disabilities Act, and drug-free workplace. U. CONSENT The Programming Partner must obtain parental/legal guardian consent for all minor program participants in order to participate. The Programming Partner will ask program participants to sign a voluntary Consent to Photograph form. The signed consent form for photography will be maintained and filed in the program participant's record. The consent shall be part of the program participants' registration form, and signed by the program participant or parent/legal guardian, if applicable, before services commence or assessments are administered. Any refusal of consent must be properly documented and signed by the program participant or parent/legal guardian, if applicable, on the consent form. V. PROGRAMMING REPORTING REQUIREMENTS The Programming Partner shall submit to the City both financial and program reports. These reports shall describe the status of both the funds and Programming, fee schedules, comparison of actual accomplishments to the objectives set forth in the Scope of Services (Attachment A), or other information as required by the City. The specific requirements, reporting periods, and submission deadlines are described in Attachment C to this Agreement, Programming Reporting Requirements. W. PUBLICITY The Programming Partner agrees that activities, services and events funded by this Agreement shall recognize the City as a funding source. All publicity, public relations, advertisements and signs within the control of the Programming Partner must recognize the City for the support of all contracted activities and be reviewed and approved by the City prior to release or distribution. No press conference regarding the Programming being provided by the Programming Partner under this Agreement shall be scheduled without the prior written consent of the City. The Programming Partner shall use its best efforts to ensure that all media representatives, when inquiring with the Programming Partner about the activities funded by this Agreement, are informed that the City is a funding source. The Programming Partner shall, if it possesses the appropriate technology, provide a link between the website and the City's website. X. PUBLICATIONS The Programming Partner agrees to supply the City, without charge, up to three copies of any publication developed in connection with implementation of programs addressed by this Agreement. Such publications will be reviewed and approved by the City prior to release or distribution and state that the program is supported and funded by the City. The Progrannning Partner agrees that the City will have use of copyrighted materials developed under this Agreement to the extent provided in, and subject to, the provisions of Paragraphs G and H above. Y. 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. 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. Z. SUCCESSORS AND ASSIGNS This Agreement shall be binding upon the Parties hereto, and their respective heirs, executors, legal representatives, successors and assigns. AA. CERTIFICATION The Programming Partner certifies that it possesses the legal authority to enter into this Agreement by way of resolution, motion or other similar action that has been duly adopted or passed, as an official act of the Programming Partner's governing body, including all understandings and assurances contained herein, and directing and authorizing the person(s) identified as the official representatives(s) of the Programming Partner, to act in connection with the Agreement, and to provide such additional information as may be required from time to time by the City. BB. ENTIRE AGREEMENT This instrument and its attachments as referenced below constitute the only Agreement of the Parties hereto, relating to said Programming and correctly sets forth the rights, duties, and obligations of each to the other, as of this date. No other Agreement, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or bind the Parties. If any provision of this Agreement is held invalid or void, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of applicable law. Attachment A: Scope of Services Attachment B: Other Fiscal Requirements, Budget, and Method of Payment Attachment C: Programming Reporting Requirements Attachment D: Affidavit for Level 2 Background Screenings, if applicable Attachment E: Performance Improvement Plan, if applicable Attachment F: Insurance Requirements CITY OF MIAMI, A Florida N11unicilml <NAME OF PROGRAMMING PARTNER> Corporation Bv: Qv. Daniel J. Alfonso, City Manger Attest: By. Todd Hannon, City Clerk Approved as to Form and Correctness: 0 Victoria Mendez, City Attorney Approved as to Insurance Requirements: Un Ann -Marie Sharpe, Dir. of Risk Management <Insert Name, Title> Approved as to Program Requirements UIA Kevin Kirwin, Dir. of Parks and Recreation Attachment A Place Holder (Replace this page with Scope of Services and remove all references to this place holder) Attachment S Other Fiscal Requirements, Budget and Method of Pavment The Parties agree that this is a cost reimbursement method of payment Agreement; Programming Partner shall be paid for Programming rendered in accordance with this Agreement in an amount not to exceed the total funding amount set forth in Section D. Programming Partner agrees to timely pay all its employees for the fulfillment of Programming provided in this Agreement. Invoice Requirements Every request by Programming Provider for payment for Programming provided, work performed, or costs incurred pursuant to this Agreement shall be accompanied by a request for payment in a format prescribed by the City, which at a minimum shall include sufficient supporting details, receipts and/or invoices, made in accordance with the schedule set forth in the Line -Item Budget ("Budget"), which is attached hereto and made a part hereof, as may be reasonably required by the City to allow proper audit of Programming Partner's expenses, should the City require an audit to be performed. Each request for payment shall be in writing and contain a statement declaring and affirming that all expenditures were made in accordance with the Budget. Each request for payment must also be in a line -item form, as reflected in the Budget. All documentation in support of a request for payment shall be subject to approval at the sole discretion of the City. All invoices submitted for reimbursement must be paid by the Programming Partner prior to being included as part of a request for payment. A request for reimbursement shall include the original receipt or invoice, plus a copy of the check that was issued to pay the same. Copies of canceled checks must be submitted to the City within sixty (60) days of payment of a receipt or invoice. Should a receipt or an invoice be paid by various funding sources, a copy of the receipt or invoice may be submitted, but must indicate the exact amount paid by various funding sources that must equal 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 approval by the City. All line -item changes must be made on or before thirty (30) days prior to the end of the term of Agreement. The City agrees to reimburse on a monthly billing basis. The request for payment is due on or before the fifteenth (15`x') day of the month following the month in which expenditures were incurred (exclusive of legal holidays or weekends). A final request for payment (last monthly invoice of the Agreement term) from Programming Partner will be accepted by the City up to thirty (30) days after the expiration of this Agreement. If Programming Partner fails to comply with the applicable deadlines, all rights to payment shall be forfeited for those receipts and/or invoices Programming Partner is seeking reimbursement for. The City reserves the right to request any supporting documentation. A request for payment provided hereunder shall be deemed to have been given if sent by hand delivery or recognized overnight courier, such as Federal Express, or if by certified U.S. mail with return receipt requested, addressed to the City of'Miami Parks and Recreation Department, at the place specified below: Kevin Kirwin, Director City of Miami Parks and Recreation Department 444 SW 2"d Avenue, 8th Floor Miami, FL 33130 If the City determines that the Programming Partner has been paid funds not in accordance with this Agreement, and to which it is not entitled, Programming Partner shall return such funds to the City within thirty (30) days of notification by the City. After thirty (30) days, the City may recapture amounts due to the City from this or any other applicable City agreement by reducing amounts requested to be reimbursed less the amount owed to the City. The City shall have the sole discretion in determining if the Programming Partner is entitled to such funds in accordance with this Agreement and the City's decision on this matter shall be binding. In the event that the Programming Partner discovers that an overpayment has been made, the Programming Partner shall repay said overpayment within thirty (30) calendar days without prior notification from the City. If the Programming Partner fails to utilize the funds in accordance with this Agreement, the City may amend this Agreement to reduce the amount of dollars. Any delay in amendment by the City is not deemed a waiver of the City's right to amend or seek reimbursement in accordance with this Agreement. In order for a request for payment to be deemed proper as defined by the Florida Prompt Payment Act, all requests for payment must comply with the requirements set forth in this Agreement and must be submitted on the forms as prescribed by the City. Requests for payment and/or documentation returned to the Programming Partner for corrections may be cause for delay in receipt of payment. Late submission may result in delay in receipt of payment. The City shall pay the Programming Partner within thirty (30) calendar days of receipt of the Programming Partner's properly submitted request for payment and/or other required documentation. The City may retain any payments due until all required reports, deliverables or monies owed to the City are submitted and accepted by the City. Supporting Documentation Requirements Programming Partner shall maintain original records documenting actual expenditures and Programming provided according to the Budget and scope of services as required. Supporting documentation shall be made available and provided to the City upon request. Programming Partner 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 shall make all such records available to the City upon request. Programming Partner shall maintain a cost allocation methodology that it uses to allocate its costs. Programming Partner shall use a cost allocation methodology which assures that the City is paying only its fair share of costs for services, overhead, and staffing not solely devoted to the program funded by this Agreement. Such methodology shall be made available to the City upon request. -THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK Attachment C Place Holder (Replace this page with Programming Reporting Requirements and remove all references to this place holder) ATTACHMENT D Affidavit of Level 2 Background Screenings In accordance with Section 943.0542 and Chapters 430, 435 and 39 of the Florida Statutes, as applicable, and pursuant to the requirements of Paragraph R of this Agreement entitled "Staff and Volunteer Background Check Requirements", the undersigned affiant makes the following statement under oath and under penalty of perjury, which is a first degree misdemeanor, punishable by a definite term of imprisonment not to exceed one year and/or a fine not to exceed $1,000, pursuant to Sections 837.012 and 775.082, Florida Statutes. STATE OF FLORIDA COUNTY OF MIAMI-DADE Before me, the undersigned authority, personally appeared (CEO/Executive Director) Authorized Programming Partner Representative of(Provider Name , who being by me first duly sworn, deposes and says: I swear and affirm that the above-named contracted Programming Partner is compliant with the requirements for personnel background screening detailed in Section 943.0542 and Chapters 430, 435 and 39 of the Florida Statutes, as applicable, for all personnel having direct contact with children, the elderly, or individuals with disabilities. (Signature of CEO/Executive Director/HR Director) Date Sworn to and subscribed before me at Miami -Dade County, Florida this _ day of , 20_ by Who is personally known to me Who produced identification: _ Type of identification Signature of Notary Public State of Florida at Large Print, type or stamp name of notary public My Commission Expires: Attachment E Place Holder (Replace this page with the Performance Improvement Plan, if necessary and remove all references to this place holder. If not needed delete this page) Attachment F Place Holder (Replace this page with the Insurance Requirements and remove all references to this place holder)