Agreement with Pro Sound, Inc. for Initial Inspection and Service ad 19-0Z y6s--7
AGREEMENT BETWEEN CITY OF MIAMI BEACH AND
PRO SOUND,INC. FOR THE INITIAL INSPECTION AND SERVICE OF THE
SOUND AND CONTROL SYSTEM AT MIAMI BEACH SOUNDSCAPE PARK
This Agreement is entered into this?3 day of , 2015 ("Execution
Date"), between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation
organized and existing under the laws of the State of Florida, having its principal offices at 1700
Convention Center Drive, Miami Beach, Florida 33139 ("City"), and PRO SOUND, INC, a
Florida corporation, whose address is 1375 NE 123 Street, Miami, FL 33161 ("Contractor").
WITNESSETH
WHEREAS, the City and New World Symphony, Inc. ("NWS"), entered into an
Agreement of Lease ("Lease"), dated as of January 5, 2004, pursuant to which the City leased to
NWS certain real property (the "Land"); and
WHEREAS, concurrently therewith, the City and NWS also entered into a Development
Agreement, dated as of January 5, 2004, as amended by that certain First Addendum to
Development Agreement, dated February 20, 2007 (collectively, the "Development
Agreement"), setting forth, among other things, the City's and NWS's respective responsibilities
and agreement to coordinate and cooperate in the planning, scheduling, and approval of the
development, design, and construction of certain improvements, including a performance,
educational, and internet broadcast facility, together with certain related amenities, facilities, and
other infrastructure improvements located on and adjacent to .the Land (the "NWS
Improvements"); (ii) a public municipal parking garage to be designed, developed, and
constructed by NWS on the City's behalf and operated by the City at its sole cost and expense on
City-owned property adjacent to the Land (the "Garage"); and (iii) a park project owned by the
City, to be located adjacent to the Land, at the corner of 17th Street and Pennsylvania Avenue,
and now known as Miami Beach Soundscape ("Soundscape"), a site map of which is attached
hereto as Exhibit"A" (hereinafter referred to as the "Property"); and
WHEREAS, the City and NWS entered into a Video and Audio System Agreement,
dated November 29, 2007, for the management, operation, scheduling, and content of
programming of the external video and audio systems intended to be built and integrated into the
NWS Improvements and Soundscape; and
WHEREAS, the City and NWS have invested in the maintenance of the audio and video
system at the Property; however, there has been no regular service or maintenance to the sound
system since it was installed and first used in January 2011; and
WHEREAS, the maintenance of this sound system requires specialized knowledge and
training in the design, set-up,programming and operation of the system; and
WHEREAS, Contractor, which designed and installed the original sound system utilized
at the,Property, has provided routine warranty-related services; and
WHEREAS, in order to ensure the continuity of services and avoid disruption to
Soundscape, the City Manager desires to hire Contractor in order to provide an analysis,
evaluation, and initial maintenance of the Systems, as defined below, so that the City may
contract for routine maintenance services for the Systems.
NOW THEREFORE, in consideration of ten dollars ($10.00), the foregoing Recitals
and of the mutual covenants contained in this Agreement, the receipt and legal sufficiency of
which is acknowledged by both parties, it is agreed as follows:
Section 1. Recitals. The above "Whereas" clauses are incorporated herein and made a material
part of this Agreement.
Section 2. Definitions.
Agreement: This Agreement between the City and Contractor, including any
exhibits and amendments thereto.
City: The City of Miami Beach, a Florida municipal corporation,
located at 1700 Convention Center Drive, Miami Beach, Florida
33139
City Manager: The chief administrative officer of the City.
Contractor: Pro Sound, Inc, a Florida corporation, whose address is 1375 NE 123
Street, Miami, FL 33161. For the purposes of this Agreement,
Contractor shall be deemed to be an independent contractor, and not an
agent or employee of the City.
Services: All services, work and actions by the Contractor performed or
undertaken pursuant to the Agreement.
Systems: Shall mean the custom sound, video, and control system created for the
City of Miami Beach by ProSound & Video and installed at
Soundscape Park in January 2011.
Fee: Amount paid to the Contractor as compensation for Services.
Risk Manager: The Risk Manager of the City, with offices at 1700 Convention Center
Drive, Third Floor, Miami Beach, Florida 33139; telephone number
(305) 673-7000, Ext. 6435; and fax number(305) 673-7023.
Soundscape Park
(or Soundscape): Also referred herein as the "Property," and identified in Exhibit "A"
hereto.
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Section 3. Scope of Services/Pre-Maintenance Evaluation (The Services"). This agreement
is for the purpose of providing a one-time analysis and initial maintenance service to the
"Systems" located at Soundscape Park. Contractor was the original programmer and installer of
the Systems. Currently, all installed Systems are out of warranty. The Systems are unique and
highly specialized and there are presently no other known installations in the United States. The
Contractor managing these Systems is to have specialized knowledge and training in the design,
set-up, programming and operation of the Systems. The Contractor understands that the Systems
operate in an outdoor environment that may affect the system due to inclement weather, and the
Systems were designed to take into consideration weather rated options for equipment and
cables. The same consideration will be used by Contractor in implementing the Standard
Maintenance for the Systems. The one time scope of services is described herein (the
"Services").
Pursuant to the authority of the City Manager, who may contract for services up to $50,000,
without going before the City Commission, the parties agree that the Systems are not under
warranty and had not been maintained for several years and agree to the following one-time
Services. Contractor has provided a cost estimate to inspect, and repair the Systems so that the
Systems are considered to be in a "known state," and so that a multi-year contract may be
executed to provide Standard Maintenance for the Systems. As such, the Contractor has agreed
to conduct certain repairs and reviews to ensure the "known state" and has (a) checked the
Systems; (b) completed basic clean-up of all the loudspeakers, and (c) analyzed the condition of
the Systems.
Section 4. Term The term of this Agreement ("Term") shall be deemed to have commenced
retroactively on October 1, 2014, and shall terminate within 60 days of said date.
Section 5. Fees for Services Upon execution of this Agreement, as referenced in the Execution
Date on page 1 hereof, Contractor shall perform preliminary maintenance services, because the
Soundscape sound and control equipment has had no maintenance since its installation, other
than simple warranty work. The following represents the actual cost for the Services already
rendered by Contractor to perform these preliminary maintenance services, including an
examination and inspection of the Systems and a basic clean-up of all the loudspeakers, to place
the equipment in a good and maintainable condition:
• Labor Costs $10,080.00
• Lift Rental $ 3,760.00
• Part Allowance $ 4,800.00
• Total $18,640.00
• No interest or late payments shall accrue.
Section 6. Termination
6.1 Termination for Cause. If the Contractor shall fail to fulfill in a timely manner, or
otherwise violates, any of the covenants, agreements, or stipulations material to this
Agreement, the City, through its City Manager, shall thereupon have the right to terminate this
Agreement for cause. Prior to exercising its option to terminate for cause, the City shall notify
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the Contractor of its violation of the particular term(s) of this Agreement, and shall grant
Contractor three (3) days to cure such default. If such default remains uncured after three (3)
days, the City may terminate this Agreement without further notice to Contractor. Upon
termination, the City shall be fully discharged from any and all liabilities, duties, and terms
arising out of, or by virtue of, this Agreement.
Notwithstanding the above, the Contractor shall not be relieved of liability to the City for
damages sustained by the City by any breach of the Agreement by the Contractor. The City, at
its sole option and discretion, shall be entitled to bring any and all legal/equitable actions that it
deems to be in its best interest in order to enforce the City's rights and remedies against
Contractor. The City shall be entitled to recover all costs of such actions, including reasonable
attorneys' fees.
6.2 Termination for Convenience Of The City. The City may also, through its City
manager, and for its convenience and without cause, terminate the Agreement at any time during
the term by giving written notice to contractor of such termination, which shall become effective
within three (3) days following receipt by the Contractor of such notice. Upon termination, the
City shall be fully discharged from any and all liabilities, duties, and terms arising out of, or by
virtue of,this agreement.
6.3 Termination for Insolvency. The City also reserves the right to terminate the
Agreement in the event the Contractor is placed•either in voluntary or involuntary bankruptcy
or makes an assignment for the benefit of creditors. In such event, the right and obligations for
the parties shall be the same as provided for in Section 5.2.
Section 7. Indemnification and Insurance Requirements
7.1 Indemnification. Contractor agrees to indemnify and hold harmless the City of Miami
Beach and its officers, employees, agents, and contractors, from and against any and all actions
(whether at law or in equity), claims, liabilities, losses, and expenses, including, but not limited
to, attorneys' fees and costs, for personal, economic or bodily injury, wrongful death, loss of or
damage to property, which may arise or be alleged to have arisen from the negligent acts, errors,
omissions or other wrongful conduct of the Contractor, its officers, employees, agents,
contractors, or any other person or entity acting under Contractor's control or supervision, in
connection with, related to, or as a result of the Contractor's performance of the Services
pursuant to this Agreement. To that extent, the Contractor shall pay all such claims and losses
and shall pay all such costs and judgments which may issue from any lawsuit arising from such
claims and losses, and shall pay all costs and attorneys' fees expended by the City in the defense
of such claims and losses, including appeals.
7.2 Insurance Requirements. The Contractor shall maintain and carry in full force during
the Term,the following insurance (the "Insurance"):
(a) Contractor General Liability, in the amount of $1,000,000, and naming the City of
Miami Beach, Florida as an additional insured; and
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(b) Contractor Professional Liability in the amount of$200,000, as required pursuant to
Florida Statutes; and
(c) Worker's Compensation and Employer's Liability, as required pursuant to Florida
Statutes.
The Insurance must be furnished by insurance companies authorized to do business in the State
of Florida. All insurance policies must be issued by companies rated no less than "B+" as to
management and not less than "Class VI" as to strength by the latest edition of Best's Insurance
Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All of
Contractor's insurance certificates shall contain endorsements providing that written notice shall
be given to the City at least thirty (30) days prior to termination, cancellation, or reduction in
coverage in the policy. Original certificates of insurance must be submitted to the City's Risk
Manager for approval (prior to commencing any work and/or services) and will be kept on file in
the Office of the Risk Manager. The City shall have the right to obtain from the Contractor
specimen copies of the insurance policies in the event that submitted certificates of insurance are
inadequate to ascertain compliance with required coverage. The Contractor is also solely
responsible for obtaining and submitting all insurance certificates for any sub-contractors.
Compliance with the foregoing requirements shall not relieve the Contractor of the liabilities and
obligations under this Section or under any other portion of this Agreement. The Contractor
shall not commence any work and or services pursuant to this Agreement until all insurance
required under this Section has been obtained and such insurance has been approved by the
City's Risk Manager.
Section 8. Litigation Jurisdiction/Venue/Jury Trial Waiver
This Agreement shall be construed in accordance with the laws of the State of Florida. This
Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary
by either party with respect to the enforcement of any or all of the terms or conditions herein,
exclusive venue for the enforcement of this Agreement shall lie in Miami-Dade County, Florida,
if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. By
entering into this Agreement, Contractor and the City expressly waive any rights either party
may have to a trial by jury of any civil litigation related to or arising out of this Agreement.
Section 9. Limitation of City's Liability. The City desires to enter into this Agreement only if
in so doing the City can place a limit on the City's liability for any cause of action, for money
damages due to an alleged breach by the City of this Agreement, so that its liability for any such
breach never exceeds the sum of $10,000. Contractor hereby expresses its willingness to enter
into this Agreement with Contractor's recovery from the City for any damage action for breach of
contract to be limited to a maximum amount of$10,000. Accordingly, and notwithstanding any
other term or condition of this Agreement, Contractor hereby agrees that the City shall not be
liable to the Contractor for damages in an amount in excess of$10,000 for any action or claim
for breach of contract arising out of the performance or non-performance of any obligations
imposed upon the City by this Agreement.
Nothing contained in this section or elsewhere in this Agreement is in any way intended to be a
waiver of the limitation placed upon the City's liability, as set forth in Section 768.28, Florida
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Statutes. The City does not waive sovereign immunity under 768.28, Florida Statutes, for any
claim for breach of contract or for an award of prejudgment interest; provided, however, that in
any action arising out of or to enforce this contract, the prevailing party shall be entitled to its
reasonable attorney's fees and costs. Section 768.28, Florida Statutes provides that the City shall
not be liable to pay a claim or a judgment by any one person which exceeds the sum of$200,000
or any claim or judgment or portions thereof, which when totaled with all other claims or
judgment arising out of the same incident or occurrence, exceeds the sum of$300,000.
Nothing contained herein shall be construed or interpreted as denying to either party any remedy
or defense available to such party under the laws of the State of Florida or federal law.
Contractor and City each waives any claims that each may have against the other with respect to
consequential, incidental, punitive or special damages, however caused, based on any theory of
liability.
Section 10. General Provisions
10.1 Audit and Inspections. Upon reasonable verbal or written notice to Contractor, and at
any time during normal business hours (i.e. 9AM — 5PM, Monday through Fridays, excluding
nationally recognized holidays), and as often as the City Manager may, in his/her reasonable
discretion and judgment, deem necessary, there shall be made available to the City Manager,
and/or such representatives as the City Manager may deem to act on the City's behalf, to audit,
examine, and/ or inspect, any and all other documents and/or records relating to all matters
covered by this Agreement. Contractor shall maintain any and all such records at its place of
business at the address set forth in the "Notices" section of this Agreement.
10.2 Assignment, Transfer or Subcontracting. Contractor shall not subcontract, assign, or
transfer all or any portion of any work and/or service under this Agreement without the prior
written consent of the City Manager, which consent, if given at all, shall be in the Manager's
sole judgment and discretion. Neither this Agreement, nor any term or provision here of, or
right hereunder, shall be assignable unless as approved pursuant to this section, and any attempt
to make such assignment (unless approved) shall be void.
10.3 Reserved.
10.4 Equal Employment Opportunity. In connection with the performance of the
Services, the Contractor shall not discriminate against any employee or applicant for
employment because of race, color, national origin, religion, sex, intersexuality, gender
identity, sexual orientation, disability, marital and familial status, or age.
10.5 Conflict of Interest. Contractor herein agrees to adhere to and be governed by all
applicable Miami-Dade County Conflict of Interest Ordinances and Ethics provisions, as set
forth in the Miami-Dade County Code, and as may be amended from time to time; and by the
City of Miami Beach Charter and Code (as may be amended from time to time); both of which
are incorporated by reference as if fully set forth herein. Contractor covenants that it presently
has no interest and shall not acquire any interest, direct or indirectly, which could conflict in
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any manner or degree with the performance of the Services. Contractor further covenants that
in the performance of this Agreement, Contractor shall not employ any person having any such
interest. No member of or delegate to the Congress of the United States shall be admitted to any
share or part of this Agreement or to any benefits arising there from.
Section 11 Notices. All notices and communications in writing required or permitted
hereunder, shall be delivered personally to the representatives of the Contractor and the City
listed below or may be mailed by U.S. Certified Mail, return receipt requested, postage prepaid,
or by a nationally recognized overnight delivery service. Until changed by notice in writing, all
such notices and communications shall be addressed as follows:
To Contractor: Pro Sound, Inc
1375 NE 123 Street
Miami, FL 33161
Attn: Rod Sintow, Chief Executive Officer
To City: City of Miami Beach
Parks& Recreation Department
1701 Meridian Avenue, Suite 401
Miami Beach, FL 33139
Attn: John Rebar, Director
Copy to: City of Miami Beach
City Attorney's Office
1701 Meridian Avenue, 4th Floor
Miami Beach, FL 33139
Notice may also be provided to any other address designated by the party to receive notice if
such alternate address is provided via U.S. certified mail, return receipt requested, hand
delivered, or by overnight delivery. In the event an alternate notice address is properly provided,
notice shall be sent to such alternate address in addition to any other address which notice would
otherwise be sent, unless other delivery instruction as specifically provided for by the party
entitled to notice. Notice shall be deemed given on the day on which personally served, or the
day of receipt by either U.S. certified mail or overnight delivery.
Section 12, Miscellaneous Provisions
12.1 Changes and Additions
This Agreement cannot be modified or amended without the express written consent of the
parties. No modification, amendment, or alteration of the terms or conditions contained herein
shall be effective unless contained in a written document executed with the same formality and of
equal dignity herewith.
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12.2 Severability. If any term or provision of this Agreement is held invalid or
unenforceable, the remainder of this Agreement shall not be affected and every other term and
provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
12.3 Entirety of Agreement. The City and Contractor agree that this is the entire Agreement
between the parties. This Agreement supersedes all prior negotiations, correspondence,
conversations, agreements or understandings applicable to the matters contained herein, and there
are no commitments, agreements or understandings concerning the subject matter of this
Agreement that are not contained in this document. Title and paragraph headings are for
convenient reference and are not intended to confer any rights or obligations upon the parties to
this Agreement.
12.4 Record Retention. Contractor shall comply with the State of Florida public record
retention requirements and shall maintain a copy of all documents reflecting services rendered to
the City for three (3) years after the termination of this Agreement, and final payment has been
made and all other pending matters are closed. Further, Contractor shall provide access to the
City, or any of City's duly authorized representatives to any books, documents, papers, and
records which are directly pertinent to this Agreement for the purpose of making audit,
examination, excerpts and transcriptions. Contractor's failure to comply with the public records
disclosure requirement set forth in Section 119.0701 of the Florida Statutes shall be a breach of
this Agreement. In the event the Contractor does not comply with the public records disclosure
requirement set forth in Section 119.0701 of the Florida Statutes, the City may, at the City's sole
discretion, avail itself of the remedies set forth under this Agreement and available at law.
12.5 No Partnership. The parties hereby acknowledge that it is not their intention under this
Agreement to create between themselves a partnership,joint venture, tenancy in common,joint
tenancy, co ownership, or agency relationship. Accordingly, notwithstanding any expressions or
provisions contained herein, nothing in this Agreement, whether based on the calculation of
rental or otherwise, shall be construed or deemed to create, or to express an intent to create, a
partnership, joint venture, tenancy in common, joint tenancy, co ownership or agency
relationship of any kind or nature whatsoever between the parties hereto. The provisions of this
section shall survive expiration of the Term.
12.6 Interpretation. Any defined term in this Agreement shall be equally applicable to both
the singular and the plural form of the term defined. The word "or" is not exclusive and shall
mean "and/or" unless indicated otherwise and the word "including" is not limiting and shall
mean "including, without limitation." References to a Section or Exhibit mean a Section or
Exhibit contained in or attached to this Agreement unless specifically stated otherwise. The
caption headings and numbering in this Agreement are for convenience and reference only and
do not define, modify, or describe the scope or intent of any of the terms of this Agreement. This
Agreement shall be interpreted and enforced in accordance with its provisions and without the
aid of any custom or rule of law requiring or suggesting construction against the party drafting or
causing the drafting of the provisions in question.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their appropriate officials, as of the date first entered above.
FOR CITY: CITY OF MIAMI BEACH,FLORIDA
ATTEST: /(1
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By: By:
Raf 1 E. Granado, City Clerk Jimmy L. i . riles, C ty Manager
Date: 11•11-3/t/— Date: 2 r
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FOR CONTRA .( 26,0t0 SOUND,INC.
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By: t _�I/I
Rod Si ow, C xecutive Officer
Date: p / ,,2U1'
APPROVED AS TO
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