Agreement with Pro Sound, Inc. for Maintenance Services 02 a a8 s7
AGREEMENT BETWEEN CITY OF MIAMI BEACH AND
PRO SOUND,INC. FOR MAINTENANCE SERVICES OF THE
SOUND AND CONTROL SYSTEM AT MIAMI BEACH SOUNDSCAPE
This Agreement is entered into this-2"3 day of April, 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; and
WHEREAS, the pre-maintenance inspection and services have been completed, and the
system is in a condition that the Contractor is aware of and at a standard, that the Contractor can
adequately bid to provide annual 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, and control system created for the City of
Miami Beach by Pro Sound & 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.
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(cc) The NWS operations team is obligated to perform general tasks such as setting
levels, verifying the general operation of the equipment, and providing information to
Contractor in the event of service-related issues;
3.2 Services not included in Standard Maintenance:
(a) Portable equipment(other than Meyer Cue Console).
(b) Maintenance necessary due to damage from sprinklers or power washing that spray
the loudspeakers shall not be covered under this Agreement.
(c) Maintenance will require the use of a motorized lift with a boom arm to access the
overheard loudspeakers. This lift must have large tires to prevent from tearing up the
Property's landscaping. The costs associated with utilizing this lift are included in the
fees outlined below in Section 5 of the this Agreement;
(d) Emergency Services and Repairs.
3.4 Access. City grants Contractor and all of its respective employees, agents, guests and
contractors the non-exclusive right of ingress and egress to the Property, including access over,
upon, through and across the common areas, elevators, stairways, and driveways to the Property
seven (7) days a week, twenty-four (24) hours a day, for the installation, maintenance and
operation of the System. However, Contractor shall coordinate access with the City with at least
24 hours prior notice, to ensure security and access to the Property; and to ensure that the City
has not coordinated an event in the Soundscape Park.
Section 4. Term. The term of this Agreement ("Term") shall be deemed to have commenced
retroactively on October 1, 2014, and shall terminate on September 30, 2017. Notwithstanding
the foregoing, Contractor acknowledges and agrees that the City has allocated monies for
payment of Contractor's Annual Fee, defined in Section 5 herein, for the first contract year
only (i.e., October 1, 2014—September 30, 2015). [Accordingly, payment under the terms for
years two and three herein are subject to and contingent upon allocation of monies for
Contractor's Annual Fee in future years (i.e., beyond the first contract year provided
herein). The City's failure to allocate funding shall result in immediate termination of this
agreement, without liability to the City. At each annual renewal, Pro Sound will agree in
writing to each additional year's extension of the agreement as long as the City funding is
committed to the work.
Section 5. Fees For Services Upon execution of this Agreement by the parties, as referenced
by the execution date on p.1 hereof, Contractor on a quarterly basis shall conduct the standard
maintenance identified in Section 3. No interest or late payments shall accrue. In consideration
of the Services to be provided, the City shall pay the Contractor the following Annual Fee:
(a) Maintenance Service—Year 1 $33,650.00 (2014-2015)
(b) Maintenance Service—Year 2 $39,420.00 (2015-2016)
(c) Maintenance Service—Year 3 $42,740.00 (2016-2017)
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As set forth in Section 4 above, the City has only allocated monies for the first contract year (i.e.
the one year period commencing on October 1, 2014, and ending on September 30, 2015).
Failure to fund Year 2 or Year 3, shall result in termination pursuant to Subsection 7.2.
Contractor shall invoice the City quarterly for services provided under Section 3. The invoice
shall delineate, in detail, all Services, or portions thereof, provided.
Section 6. Default.
6.1 Notice of Default; Cure Period. In the event that there is a default by City or Contractor
(the "Defaulting Party") with respect to any of the provisions of this Agreement or City's or
Contractor's obligations under this Agreement, the other party (the "Non-Defaulting Party")
shall give the Defaulting Party written notice of such default. After receipt of such written
notice, the Defaulting Party shall have thirty (30) calendar days in which to cure any monetary
default and five (5) calendar days in which to cure any non-monetary default. The Defaulting
Party shall have such extended periods as may be required beyond the five (5) calendar day cure
period to cure any non-monetary default if the nature of the cure is such that it reasonably
requires more than five (5) calendar days to cure, and Defaulting Party commences the cure
within the five (5) calendar day period and thereafter continuously and diligently pursues the
cure to completion. The Non-Defaulting Party may not maintain any action or effect any
remedies for default against the Defaulting Party unless and until the Defaulting Party has failed
to cure the same within the time periods provided in this Section.
6.2 Consequences of Contractor's Default. In the event that Contractor is in default beyond
the applicable periods set forth above, City may, at its option, upon written notice: (i) terminate
this Agreement provided that City has been materially and substantially harmed by such default;
(ii)take any actions that are consistent with City's rights; or (iii) sue for injunctive relief, sue for
specific performance, or sue for damages. In no event shall Contractor be liable to City for
consequential, indirect, speculative or punitive damages in connection with or arising out of any
default.
6.3 Consequences of City's Default. In the event that City is in default beyond the applicable
periods set forth above, Contractor may, at its option, upon written notice: (i) terminate this
Agreement, and be relieved from all further obligations contained herein; (ii) perform the
obligation(s) of City specified in such notice, in which case any expenditures made by
Contractor in so doing shall be deemed paid for the account of City and City agrees to reimburse
Contractor for said expenditures upon demand; (iii) take any actions that are consistent with
Contractor's rights; or (iv) sue for injunctive relief, sue for specific performance, sue for
damages, or set-off from Rent any amount expended by Contractor as a result of such default. In
no event shall City be liable to Contractor for consequential, indirect, speculative or
punitive damages in connection with or arising out of any default.
Section 7. Termination
7.1 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.
7.2 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.
7.3 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
g g
the parties shall be the same as provided for in Section 6.2.
Section 8. Indemnification And Insurance Requirements
8.1 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.
8.2 Insurance Requirements. The Contractor shall maintain and carry in full force during
the Term, the following insurance (the "Insurance"):
1. 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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2. Contractor Professional Liability in the amount of $200,000, as required pursuant to
Florida Statutes; and
3. 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 9. 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 10. 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.
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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
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 11. General Provisions
11.1 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.
11.2 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.
11.4 Reserved.
11.5 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.
11.6 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
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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
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 12. 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 13. Miscellaneous Provisions
13.1 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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13.2 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.
13.3 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.
13.4 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.
13.5 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.
13.6 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.
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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:
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By: By: _ ';
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Rafael . Granado '
it mmy L. orale
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City Clerk !l ity Mana_er
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FOR CONTRACTOR: PRO SOUND,INC.
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By: _�
Rod • ntow 0
Chie Executive Officer
Date: ff-!L / 20!c(
APPROVED AS TO
FORM& LANGUAGE
FOR .,XECUTION
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Attorney ate
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