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HomeMy WebLinkAboutBack-Up Document - Draft AgreementAGREEMENT BETWEEN THE CITY OF MIAMI AND THE SUNDARI FOUNDATION, INC. TO ESTABLISH THE CITY OF MIAMI FEEDING PROGRAM THIS AGREEMENT (hereinafter the "Agreement"), made and entered into this day of , 2019 ("Effective Date"), by and between The CITY OF MIAMI ("CITY"), a municipal corporation of the State of Florida, and THE SUNDARI FOUNDATION, INC. ("Sundari Foundation"), a Florida not-for-profit Corporation, for the provision of food and meal expenses for women, youth, and children experiencing homelessness in the City by Sundari Foundation at the Lotus Village location (hereinafter the "Meal Program"). The Agreement establishes the basis for mutual understanding and cooperation between the parties and declares the parties' mutual interest in pursuing the establishment of cooperative activities as set forth herein. RECITALS WHEREAS, Sundari Foundation and CITY have carefully assessed their mutual capabilities and interests and have concluded that it is desirable to enter into this Agreement; and WHEREAS, the parties have determined that this Agreement will enable them to complement their unique capabilities and offer the best combination of capabilities to further the goals of this Agreement and the Program Summary ("Exhibit A") that are of benefit to both parties as well as to the community at large in offering this Meals Program; and WHEREAS, Sundari Foundation provides meals through the Lotus House at the Lotus Village location to an estimated 900 plus women and youth annually; and WHEREAS, the Meal Program will further assist with providing meals to those in need within the Miami community. Page 1 of 11 NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the sufficiency of said consideration being hereby acknowledged, the parties hereby do agree as follows: 1. The purpose of this Agreement is to assist with providing additional meals to women and youth in the City experiencing homelessness. To further the goals of this Agreement, the parties agree: a. The CITY will grant funds in an amount not to exceed twenty-five thousand dollars ($25,000) for the City of Miami Meal Program provided by Sundari Foundation for the provision of meals to women and youth in the City at the Lotus House facility location. b. The Sundari Foundation further agrees to accept the grant funds and provide meals to homeless women and youth within the Miami community. 2. For the purposes of this Agreement, the Director of the Human Services Department will serve as the point of contact for this Agreement on behalf of CITY. For purposes of this Agreement, the President of the Sundari Foundation, Inc., will serve as the point of contact on behalf of Sundari Foundation. The above -designated points of contacts for the parties will be responsible for coordinating, controlling, monitoring and modifying the conditions set forth within this Agreement on behalf of their respective entities. 3. This Agreement becomes effective on the last date signed by the parties and shall remain in effect for one (1) year unless earlier terminated by either party upon giving thirty (30) days prior notice of termination or upon the mutual agreement of the parties. 4. This Agreement is considered a public contract and shall be subject to Florida's Public Record Laws, Chapter 119, Florida Statutes. If Sundari Foundation, under this agreement has questions regarding the application of Chapter 119, Florida Statutes, to their duty regarding providing public records relating to this agreement as a Public Contract, please contact the City's Custodian of Public Records at telephone number 304-416-1800, email: PublicRecordsamlamiaov.com, or regular mail at City of Miami, Office of The City Attorney, 444 SW 2nd Avenue, 9th floor, Miami, FL 33130. The Sundari Page 2 of 11 Foundation may also contact the records custodian at the City of Miami Office of Community Investments who is administering this agreement. 5. Prior to commencing any activity under this Agreement, Sundari Foundation shall provide insurance acceptable to the City and agrees to furnish a certificate of insurance in accordance to Exhibit A, as attached. 6. The CITY reserves the right to audit the financial records of Sundari Foundation relevant to this Agreement at any time during the performance of this Agreement and for a period of five (5) years after the expiration/termination. The Sundari Foundation agrees to provide all financial and other applicable records and documentation of services to the CITY. The CITY reserves the right to recapture funds in the event that Sundari Foundation shall fail; (i) to comply with the terms of this Agreement, or (ii) to accept conditions imposed by the CITY. 7. The Sundari Foundation shall indemnify, hold harmless, and defend at its own cost and expense, the City, its officials, officers, and employees, from and against all losses, claims, damages , fines, penalties, or expenses, including attorney's fees and costs, incurred by City in connection with any third -party claims for personal injury or death to persons and/or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the negligent performance or non-performance (i.e., act or omission) of the services contemplated by this Agreement (whether active or passive) of the Sundari Foundation or its employees or subcontractors which is directly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive or in strict liability) of the Indemnitees, or any of them, or (ii) the failure of the Sundari Foundation to comply materially with any of the requirements herein, or the failure of the Sundari Foundation to conform to statues, ordinances, codes, rules, or other regulations, approvals, or requirements of any governmental authority, local, federal, or state, in connection with the performance of this Agreement even if it is alleged by the City, its officials and/or employees were negligent. The Sundari Foundation expressly agrees to indemnify, defend and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Sundari Foundation, or any of its Page 3 of 11 subcontractors, for which their liability to such employee or former employee would otherwise be limited to payments under the State Worker's Compensation or similar laws. The Sundari Foundation further agrees to indemnify, defend and hold harmless the Indemnitees from and against (i) any and all Liabilities imposed on account of the violation of any law, ordinance, order, rule, regulation, condition, or requirement, related directly to Sundari Foundation's negligent performance under this Agreement, compliance with which is left by this Agreement to RECIPIENT, and (ii) any and all claims, and/or suits for labor , equipment, supplies, and materials furnished by Sundari Foundation, one of the Sundari Foundation's subcontractors, or utilized in the performance of this Agreement. The Sundari Foundation's obligations to indemnify, defend and hold harmless the Indemnitees shall survive the termination/expiration of this Agreement. The Sundari Foundation understands and agrees that any and all liabilities regarding the use of any subcontractor for Services related to this Agreement shall be borne solely by the Sundari Foundation throughout the duration of this Agreement and that this provision shall survive the termination or expiration of this Agreement, as applicable. 8. This Agreement may be modified, extended, renewed, or amended only in writing by mutual consent of both parties by their respective authorized signatories. Upon expiration of the term of this Agreement, the Sundari Foundation agrees and understands that the City has no obligation to renew this Agreement. 9. This Agreement expresses the basic understanding and present intentions of the parties but does not attempt to either specify or otherwise limit the collaborative efforts between the parties. It merely serves as evidence of the parties' good faith intentions with regard to these activities. 10. This Agreement does not constitute a joint venture, partnership, consortium, or any other form of business arrangement or organization. Each party is and shall act as an independent contractor and not as an agent or partner of the other for any purpose whatsoever, and no party shall act or represent itself, directly or by implication, in any such capacity in respect Page 4 of 11 of any other party or in any manner which seeks to assume or create any obligation on behalf of, or in the name of, any other party without that party's prior express written agreement. The employees of one party shall not be deemed the employees of the other party. 11. This instrument and its attachments constitute the only agreement of the parties hereto, and set forth the rights, duties, and obligations of each of the parties hereto to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of not force or effect. 12. This Agreement shall be construed in accordance with the laws of the State of Florida. Any dispute with respect to this Agreement is subject to the laws of Florida, venue in Miami - Dade County. Each party shall be responsible for its own attorney's fees and cost incurred as a result of any action or proceeding under this Agreement. Each party waives its rights to jury trial. 13. Any violation of this Agreement that remains uncured thirty (30) days after the Sundari Foundation's receipt of notice from the CITY (by certified or registered mail) of such violation may, at the option of the CITY, be addressed by an action for damages or equitable relief, or any other remedy provided at law or in equity. In addition to the remedies of the CITY set forth herein, if Sundari Foundation fails to comply with the terms of this Agreement, the City may suspend or terminate this Agreement. 14. The CITY may terminate this Agreement, in whole or in part, in its sole and absolute discretion, that the Sundari Foundation is not compliant with any term or provision of this Agreement. 15. The Sundari Foundation warrants that it has not employed or retained any person employed by the CITY to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person employed by the CITY any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Agreement. Page 5 of 11 16. 17 19. The obligations undertaken by the Sundari Foundation pursuant to this Agreement shall not be delegated or assigned to any other person or firm, in whole or in part, without the CITY's prior written consent which may be granted or withheld in the CITY's sole discretion. The parties' obligations hereunder are subject to and contingent upon the availability of funds; and is also subject to amendment or termination due to lack of funds or authorization, reduction of funds, and/or changes in regulations. Each person signing this Agreement represents and warrants that he or she is duly authorized and has the legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party's obligations hereunder have been duly authorized, and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. It is understood and agreed amongst the Parties that written notice shall be mailed or hand delivered to the addresses set forth below, and shall be deemed to have been served and given (the "effective date"): (a) if delivered by hand, to the address listed below, on the date received; or (b) if delivered by U.S. Mail, and sent by certified mail, return receipt requested, on the date received. The Parties designate the following addresses for notice: FOR CITY OF MIAMI: Emilio T. Gonzalez, PhD. City Manager, City of Miami 3500 Pan American Drive Miami, FL 33133 With Copies to: FOR SUNDARI FOUNDATION, INC.: Constance Collins, Executive Officer & President 217 NW 15th Street Miami, FL 33136 Director of Department of Human Services, City of Miami, Miami Riverside Center 444 S.W. 2nd Avenue Miami, Florida 33130 Pang 6 3f 11 And to: City Attorney City of Miami, Miami Riverside Center 444 S.W. 2nd Avenue, 9th Floor Miami, Florida 33130 Either party may at any time designate a different address and/or contact person by giving written notice as provided above to the other party. Such notices shall be deemed given upon receipt by the addressee. 20. There are no express or implied third -party beneficiaries to this Agreement. No homeless individual who may obtain services under this Agreement shall be considered a third -party beneficiary. 21. This Agreement shall not be assigned by Sundari Foundation, in whole or in part, without the prior written consent of the CITY, by resolution of the City Commission, which may be withheld or conditioned, in the CITY's sole discretion. 22. Any alterations, amendments, variations, modifications, extensions or waivers of provisions of this Agreement shall only be valid when they have been reduced to writing, duly approved and signed by all Parties hereto. Approval of any amendment, alteration, variation, modification, extension or waiver of provisions by the CITY can only be effected by duly enacted resolution of the City Commission. 23. The Parties agree that this Agreement does not create or recognize any partnership, joint venture, or any other kind of organizational relationship among the Parties hereto. Each Party hereto acknowledges the independence and autonomy of the other Party hereto. 24. MISCELLANEOUS PROVISIONS: a. This Agreement shall be construed and enforced according to the laws of the State of Florida. Page 7of11 b. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. d. Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. e. It is agreed that this Agreement was the product of arms -length give-and-take negotiation, and that its terms were drafted jointly, such that if construction of any term is necessary, it shall not be construed for or against either party as the drafter. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Page 8 of 11 IN WITNESS HEREOF THE PARTIES HERETO HAVE CAUSED TO BE EXECUTED BELOW THE SIGNATURES OF THE AUTHORIZED REPRESENTATIVES OF THE PARTIES HERETO WHO ARE FULLY AND DULY AUTHORIZED TO EXECUTE THIS AGREEMENT ON BEHALF OF THE RESPECTIVE PARTIES HERETO: CITY OF NHANH EMILIO T. GONZALEZ, PHD. CITY MANAGER CITY OF MIAMI, FLORIDA Date: Attest: TODD B. HANNON CITY CLERK APPROVED AS TO FORM AND CORRECTNESS: VICTORIA MENDEZ CITY ATTORNEY SUNDARI FOUNDATION, INC. CONSTANCE COLLINS EXECUTIVE DIRECTOR & PRESIDENT Date: APPROVED AS TO INSURANCE REQUIREMENTS: ANN -MARIE SHARPE RISK MANAGEMENT Page 9 of 11 EXHIBIT A INSURANCE REOUIREMENTS FOR A CERTIFICATE OF INSURANCE INSURANCE REQUIRMENTS FOR THE SUNDARY FOUNDATION, INC RE: CITY OF MIAMI FEEDING PROGRAM AT LOTUS HOUSE I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 Products/Completed Operations $1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required City of Miami is listed as an additional insured Contingent and Contractual Liability Premises and Operations Liability Primary Insurance Clause Endorsement I1. 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 $ 1,000,000 B. Endorsements Required City of Miami is listed as an additional insured Page 10 of 11 III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation 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 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, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. Page 11 of 11