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Agreement with Pro Sound, Inc.2.011- 2,1887 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, day of N fD , 2017 ("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, Florida 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, and by that certain Second Addendum to Development Agreement, dated July 9, 2009 (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 (i) 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 maintenance of the sound and control system at Soundscape 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, on April 23, 2015, and pursuant to City Resolution No. 2014-28657, the City entered into an Agreement with Contractor for maintenance services of the sound and control system at Miami Beach Soundscape, with a term of three years (the "2015 Agreement"); and WHEREAS, pursuant to the 2015 Agreement, and following Contractor's analysis, evaluation, and initial maintenance of the Systems (as defined below), the City and Contractor agreed to maintain the Systems at a certain standard; and Page 1 of 13 WHEREAS, on June 7, 2017, the Mayor and City Commission adopted City Resolution No. 2017-2988, waiving, by 5/7ths vote, the formal competitive bidding requirement, finding such waiver to be in the best interest in the City, and approving and authorizing the City Manager to execute a maintenance service agreement with Contractor, for a three (3) year term, in an amount not to exceed $130,740.00, to maintain the sound system at Miami Beach Soundscape. NOW THEREFORE, the foregoing Recitals and 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, Florida 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: 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. 6515; and fax number (305) 673-7023 Soundscape Park: (or Soundscape) Also referred to herein as the "Property," and identified in Exhibit "A". Section 3. Scope Of Services. Contractor shall perform maintenance services, as further described herein, on the Systems, throughout the Term of this Agreement. The City and Contractor acknowledge and agree that Contractor was the original programmer and installer of the Systems; all installed Systems are out of warranty; the Systems are unique and highly specialized; and there are presently no other known similar installations in the United States. The Contractor managing these Systems possesses, and shall maintain, specialized knowledge and training in the design, set-up, programming and operation of the Systems. Contractor acknowledges that the Systems operate in an outdoor environment that may Page 2 of 13 affect the Systems, due to increased humidity and/or inclement weather, and that the Systems were designed to take into consideration weather -rated options for equipment and cables. Contractor shall take these considerations into account in implementing Standard Maintenance services for the Systems. The scope of services is described in greater detail below (the "Services"). The cost for Contractor's Services for the duration of the Term, as defined in Section 4, is set forth in Section 5, herein. 3.1 List of Services. Contractor's Standard Maintenance services for the Systems ("Standard Maintenance") shall be performed as detailed below. While the Systems' loudspeakers have water- resistant treatment applied, the loudspeakers require the application of regular and thorough maintenance standards to prolong their life. The Standard Maintenance will, among other things, require Contractor's observation and, in some cases, removal of the metal grills covering the loudspeakers. Standard Maintenance performed by Contractor shall include the following services: (a) (b) (c) (d) (e) (0 (g) (h) (i) (k) (I) (m) (n) (o) (p) (q) (r) Wipe -down and rust prevention of the loudspeaker equipment due to the environment they are operated in, as required, but no less than once every three (3) months; Removal of any rust that may accumulate, and sealing of the outdoor -exposed equipment. Application of appropriate touch-up paint to hardware or seal enclosure, when required, but no less than once every three (3) months; Replacement of loudspeaker grills as they deteriorate due to environmental factors; Replacement of connectors that may rust due to the environment; Verification that rigging, bolts, and support hardware are in good condition, and replacement of rigging, bolts, and support hardware, as needed; Contractor shall check electronics for operation. This includes reviewing speaker amplifiers using the Meyer Sound RMS system; Check subwoofers and front loudspeakers for operation, and to check quality of finishes. Wipe -down and paint as needed. Replacement of any rusting parts; Contractor shall install software updates as they are released, and verify that such updates are correctly installed. Software shall be installed as may be required and in coordination with Contractor, to ensure that each software update is necessary, and so that the updates do not unnecessarily interfere with the Systems. Software shall not be updated unless the software is failing to work properly, or the City is looking for new functionality; Contractor shall replace UPS batteries annually; Check air-conditioning filters, and notify all relevant individuals of the need to replace filters regularly; Verify humidity in projection tower is between 45% and 60%; Annual replacement of battery in Crestron controller; Remove and physically verify each loudspeaker on an annual basis prior to seasonal use (all loudspeakers). Repair or replace parts or amplifiers as necessary. Any loudspeaker showing rust should be removed and restored to factory finish as when first installed; Maintain spare inventory of amplifiers to include two (2) amplifiers for the Melodies, one (1) amplifier for the 700HP subwoofers, one (1) amplifier for the UPJs, and one (1) amplifier for the UPQ-IPs; Maintain one (1) Meyer Sound DAIO-168 module as a spare for the Constellation equipment; Maintain one (1) DA024 output module as a spare; Maintain one (1) spare AVB enabled network switch as a spare; and Verify that all microphones that are specific to the Systems and that are contained in the symphony hall are working. Replace as necessary. Page 3of13 3.1.1 The following provisions shall apply to Contractor's performance of the Services: (a) Normal repair services shall take place within one (1) to three (3) business days of the City's request. This does not include any time required to perform equipment repairs, should they be necessary; (b) All repairs and service calls will receive priority service due to the live nature of this venue. All services to be performed by the Contractor must be previously approved by the City, in writing. Contractor shall provide the City with written proof of services performed, in order for the City to provide payment for such services; (c) The Services include repair of all equipment that fails from normal use. It does not cover repairs from damage due to lightning, acts of God (such as hurricanes, etc.), acts of vandalism, abuse, misuse or electrical damage, which would be billed at a Cost Plus rate, as defined herein, to restore the Systems to normal operation; (d) Contractor shall visit the Property quarterly to perform Standard Maintenance services. Once a year, Contractor will conduct extensive maintenance of the Systems to verify operation of the Systems and assure good operating functions; and (e) 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 this Agreement, The City and Contractor agree and acknowledge that NWS shall perform general tasks such as setting levels, verifying the general operation of the Systems, and providing information to Contractor in the event of service -related issues. 3.2 Emergency Services. Contractor shall be available on an emergency basis for support services for the Systems. Requests for such emergency services will be considered priority service requests, and shall receive an on-site response from the Contractor between one (1) and five (5) hours on weekdays, and between three (3) and nine (9) hours on weekends, following notice to Contractor of the priority service request, so that Contractor may diagnose and/or resolve problems. 3.3 Excluded Services. Standard Maintenance excludes the following: (a) Replacement of low -voltage cable below ground, which, if requested by the City, would be billed on a time -and -materials basis; (b) Electrical power -related issues (power issues shall be resolved by a licensed electrical contractor when they arise); (c) Architectural, structural, and landscaping issues that arise outside of the scope of the Services (any such services shall be billed at the Cost Plus rate, as defined in Section 5 herein); (d) Portable equipment (other than Meyer Cue Console); and (e) Maintenance necessary due to damage to loudspeakers from sprinklers or power washing. 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 Systems. However, Contractor shall provide the City with at least 24 hours prior written notice for each request to access the Property, in order to ensure adequate security and access to the Property; and to ensure that the City has not coordinated an event at the same time in the Soundscape Park, The City shall provide Contractor and Page 4 of 13 Contractor's technicians with any required parking necessary for Contractor to perform the Services. Section 4. Term. The term of this Agreement ("Term") shall be deemed to have commenced on October 1, 2017, and shall terminate on September 30, 2020. Notwithstanding the foregoing, Contractor acknowledges and agrees that the City Commission has allocated funds for payment of Contractor's Annual Fee, defined in Section 5 herein, for the first year of the Term only (i.e. October 1, 2017 through September 30, 2018). Accordingly, the City's obligation during the second and third years of the Term shall be contingent upon the appropriation of all requisite funding by the City Commission. The City's failure to appropriate funding for this Agreement shall result in the immediate termination of this Agreement, without liability to the City, pursuant to Section 7.2. At the conclusion of each year of the Term, and following Contractor's request, the City shall provide Contractor with written notice as to whether the City Commission has allocated funding for the subsequent year. Section 5. Fees For Services. 5.1 Annual Fee. Upon execution of this Agreement by the parties, Contractor shall, on a quarterly basis, 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, in quarterly installments: (a) Maintenance Service — Year 1: 10/1/2017 to 9/30/2018 $42,740.00 (b) Maintenance Service - Year 2: 10/1/2018 to 9/30/2019 $44,000.00 (c) Maintenance Service - Year 3: 10/1/2019 to 9/30/2020 $44,000.00 5.2 Other Costs. The following fees and costs apply to those services not included in the Standard Maintenance services detailed in Section 3.1 herein. (a) "Cost Plus" Service shall require an additional fee of 15% of the standard rates (below), plus any required freight and labor. (b) Labor rates: (i) Standard Discounted Labor shall be billed at the rate of $72.00 per hour (except for the services of a programmer, which shall be billed at $110.00 per hour); (ii) Overtime and emergency services shall be billed at 150% of the Standard Discounted Labor rate; (iii) Services performed on weekends shall be billed at 200% of the Standard Discounted Labor rate; (iv) Travel is billed at Standard Discounted Labor rates listed herein; and (v) The City shall reimburse Contractor for all applicable taxes and permit fees are reimbursable. Contractor shall invoice the City on a quarterly basis for any and all services provided under this Agreement. The invoice shall delineate in detail all Services, or portions thereof, performed. 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 Page 5 of 13 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. (However, such extended cure period shall in no event exceed 60 days.) 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, the City may, at its option, upon written notice: (i) terminate this Agreement and be relieved from all further obligations contained herein; (ii) take any actions that are consistent with the 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 the 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 the 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) take any actions that are consistent with Contractor's rights; or (iii) sue for injunctive relief, sue for specific performance, or sue for damages. 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. Notwithstanding the provisions of Section 6, above, 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 the Contractor of its violation of the particular term(s) of this Agreement, and shall grant Contractor five (5) days to cure such default. If such default remains uncured after five (5) 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 ten (10) 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 the parties shall be Page 6 of 13 the same as provided for in Section 7.2. 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, attorney's 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 attorney's 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 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 Statues. 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. Page 7 of 13 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 the compensation/fee to be paid to Contractor pursuant to this Agreement, less any amounts actually paid by the City as of the date of the alleged breach. 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 the compensation/fee to be paid to Contractor pursuant to this Agreement, less any amounts actually paid by the City as of the date of the alleged breach. 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 the compensation/fee to be paid to Contractor pursuant to this Agreement, less any amounts actually paid by the City as of the date of the alleged breach, 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 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, Mondays 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 City 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 Non -Discrimination. Contractor shall comply fully with the City of Miami Beach Human Rights Ordinance, codified in Chapter 62 of the City Code, as may be amended from time to time, Page 8 of 13 prohibiting discrimination in employment, housing, public accommodations, and public services on account of actual or perceived race, color, national origin, religion, sex, intersexuality, gender identity, sexual orientation, marital and familial status, age, disability, ancestry, height, weight, domestic partner status, labor organization membership, familial situation, or political affiliation. 11.6 Conflict Of Interest and Compliance with Applicable Laws. 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 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: To City: Copy to: Pro Sound, Inc. 1375 NE 123 Street Miami, FL 33161 Attn: Rod Sintow, Chief Executive Officer City of Miami Beach Parks & Recreation Department 1701 Meridian Avenue, Suite 401 Miami Beach, FL 33139 Attn: John Rebar, Parks Director City of Miami Beach City Attorney's Office 1700 Convention Center Drive, 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 Page 9of13 unless contained in a written document executed with the same formality and of equal dignity herewith. 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 Contractor's Compliance with Florida Public Records Law. (A) Contractor shall comply with Florida Public Records law under Chapter 119, Florida Statutes, as may be amended from time to time. (B) The term "public records" shall have the meaning set forth in Section 119.011(12), which means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business of the City. (C) Pursuant to Section 119.0701 of the Florida Statutes, if the Contractor meets the definition of "Contractor" as defined in Section 119.0701(1)(a), the Contractor shall: (1) Keep and maintain public records required by the City to perform the 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 or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes or as 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 contract term and following completion of the Agreement if the Contractor does not transfer the records to the City; (4) Upon completion of the Agreement, transfer, at no cost to the City, all public records in possession of the Contractor or keep and maintain public records required by the City to perform the service. If the Contractor transfers all public records to the City upon completion of the Agreement, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the Agreement, the Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the City, upon request from the City's custodian of public records, in a format that is compatible with the information technology systems of the City. (D) REQUEST FOR RECORDS; NONCOMPLIANCE. (1) A request to inspect or copy public records relating to the City's contract for services must be made directly to the City. If the City does not possess the requested records, the City shall immediately notify the Contractor of the request, and the Contractor must provide the records to the City Page 10 of 13 or allow the records to be inspected or copied within a reasonable time. (2) Contractor's failure to comply with the City's request for records shall constitute a breach of this Agreement, and the City, at its sole discretion, may: (1) unilaterally terminate the Agreement; (2) avail itself of the remedies set forth under the Agreement; and/or (3) avail itself of any available remedies at law or in equity. (3) A Contractor who fails to provide the public records to the City within a reasonable time may be subject to penalties under s. 119.10. (E) CIVIL ACTION. (1) If a civil action is filed against a Contractor to compel production of public records relating to the City's contract for services, the court shall assess and award against the Contractor the reasonable costs of enforcement, including reasonable attorney fees, if: a. The court determines that the Contractor unlawfully refused to comply with the public records request within a reasonable time; and b. At least 8 business days before filing the action, the plaintiff provided written notice of the public records request, including a statement that the Contractor has not complied with the request, to the City and to the Contractor. (2) A notice complies with subparagraph (E)(1)(b) if it is sent to the City's custodian of public records and to the Contractor at the Contractor's address listed on its contract with the City or to the Contractor's registered agent. Such notices must be sent by common carrier delivery service or by registered, Global Express Guaranteed, or certified mail, with postage or shipping paid by the sender and with evidence of delivery, which may be in an electronic format. (3) A Contractor who complies with a public records request within 8 business days after the notice is sent is not liable for the reasonable costs of enforcement. (F) IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: CITY OF MIAMI BEACH ATTENTION: RAFAEL E. GRANADO, CITY CLERK 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 E-MAIL: RAFAELGRANADO(a,MIAMIBEACHFL.GOV PHONE: 305-673-7411 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. Page 11 of 13 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. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. Page 12 of 13 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: ATTEST: By: Rafa- E. Granas o City Clerk Date: CITY OF MIAMI BEACH, FLORIDA By: Jim City e , w, y L. Mo Manager FOR CONTRACTOR: ales ND, INC. Rod Sin ow Chairmn and Chief Executive Officer APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION City Aftor —73c77- C\A.- Page 13 of 13