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Pelton Marsh Kinsella Agmt AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND PELTON MARSH KINSELLA, A DIVISION OF CARTER AND BURGESS, INC., FOR THE JACKIE GLEASON THEATER SOUND AND LIGHTING CONSULTATION (PHASE ONE), PREPARATION OF CONSTRUCTION DOCUMENTS, INITIAL PERMIT PROCESS, AND CONSTRUCTION OVERSIGHT (PHASE 2) / THIS AGREEMENT made and entered into this ._%___th day of o.,,~, 2003, by and between the CITY OF MIAMI BEACH, FLORIDA (hereinafter referred to as City), having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and Pelton Marsh Kinsella, a division of Carter and Burgess, Inc. (hereinafter referred to as Contractor), whose address is 1420 West Mockingbird Lane, Suite 400, Dallas, Texas 75247. Agreement: City Manager: Contractor: Services: Fee: Risk Manager: SECTION 1 DEFINITIONS This Agreement between the City and Consultant. The Chief Administrative Officer of the City. For the purposes of this Agreement, Consultant shall be deemed to be an independent consultant, and not an agent or employee of the City. All services, work and actions by the Consultant performed pursuant to or undertaken under this Agreement, as described in Section 2. Amount paid to the Consultant to cover the costs of the Services. 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. SECTION 2 SCOPE OF WORK The scope of work to be performed by Consultant is set forth in Exhibit "A," entitled "Scope of Services." (Services). SECTION 3 COMPENSATION 3.1 FIXED FEE Consultant shall be compensated for Phase One Services to be provided herein, as set forth in Exhibit "A." In no event shall the maximum compensation to Consultant throughout the term of this Agreement exceed the sum of $22,570.00 for Phase One services. 3.2 INVOICING Consultant shall submit an invoice, which includes the purchase order number and a detailed description of the Services provided. 3.3 METHOD OF PAYMENT Payments shall be made within thirty (30) days of the date of invoice, in a manner satisfactory to and as approved and received by, the City. Consultant shall mail all invoices to: The Miami Beach Convention Center Procurement Agent 1901 Convention Center Drive 4th Floor Miami Beach, Florida 33139 SECTION 4 GENERAL PROVISIONS 4.1 RESPONSIBILITY OF THE CITY Not applicable 4.2 PUBLIC ENTITY CRIMES A State of Florida Form PUR 7068, Sworn Statement under Section 287.133(3)(a) Florida Statute on Public Entity Crimes shall be filed with the City's Procurement Division, prior to commencement of the Services herein. 4.3 DURATION AND EXTENT OF AGREEMENT The term of this Agreement shall commence upon execution of this Agreement, by all parties hereto, and shall terminate on the completion of Phase One. 4.4 TIME OF COMPLETION The Services to be rendered by the Consultant shall be commenced upon receipt of a written Notice to Proceed from the City subsequent to the execution of the Agreement, and Consultant shall adhere to the schedule as referenced by Exhibit "A" hereto. A reasonable extension of time shall be granted in the event the work of the Consultant is delayed or prevented by the City or by any circumstances beyond the reasonable control of the Consultant, including weather conditions or acts of God render performance of the Consultant's duties impracticable. 4.5 INDEMNIFICATION Consultant agrees to indemnify and hold harmless the City of Miami Beach and its officers, employees and agents, from and against any and all actions,' claims, liabilities, losses, and expenses, including, but not limited to, attorneys' fees, for personal, economic or bodily injury, wrongful death, loss of or damage to property, at law or in equity, which may arise from the negligent acts, errors, omissions or other wrongful conduct of the Contractor, its employees, agents, sub-consultants, or any other person or entity acting under Consultant's control, in connection with the Consultant's performance of the Services pursuant to this Agreement; and to that extent, the Consultant shall pay all such claims and losses and shall pay all such costs and jUdgements 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. The parties agree that one percent (1%) of the total compensation to the Consultant for performance of the Services under this Agreement is the specific consideration from the City to the Contractor for the Consultant's Indemnity Agreement. The Consultant's obligation under this Subsection shall not include the obligation to indemnify the City of Miami Beach and its officers, employees and agents, from and against any actions or claims which arise or are alleged to have arisen from negligent acts or omissions or other wrongful conduct of the City and its officers, employees and agents. The parties each agree to give the other party prompt notice of any claim coming to its knowledge that in any way directly or indirectly affects the other party. 4.6 TERMINATION~ SUSPENSION AND SANCTIONS 4.6.1 Termination for Cause If the Consultant shall fail to fulfill in a timely manner, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, the City shall thereupon have the right to terminate the Services then remaining to be performed. Prior to exercising its option to terminate for cause, the City shall notify the Consultant of its violation of the particular terms of this Agreement and shall grant Consultant seven (7) days to cure such default. If such default remains uncured after seven (7) days, the City, upon three (3) days' notice to Consultant, may terminate this Agreement and 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 Consultant shall not be relieved of liability to the City for damages sustained by the City by any breach of the Agreement by the Consultant. The City, at its sole option and discretion, shall additionally 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 right and remedies against the defaulting party. The City shall be entitled to recover all costs of such actions, including reasonable attorneys' fees. To the extent allowed by law, the defaulting party waives its right to jury trial. 4.6.2 Te~-~ination for Convenience of City THE CITY MAY ALSO, FOR ITS CONVENIENCE AND WITHOUT CAUSE, TERMINATE THE SERVICES THEN REMAINING TO BE PERFORMED AT ANY TIME DURING THE TERM HEREOF BY GIVING WRITTEN NOTICE TO CONSULTANT OF SUCH TERMINATION, WHICH SHALL BECOME EFFECTIVE THIRTY (30) DAYS FOLLOWING RECEIPT BY THE CONSULTANT OF THE WRITTEN TERMINATION NOTICE. IN THAT EVENT, ALL FINISHED OR UNFINISHED DOCUMENTS AND OTHER MATERIALS, AS DESCRIBED IN SECTION 2 AND IN EXHIBIT "A" SHALL BE PROPERLY ASSEMBLED AND DELIVERED TO THE CITY AT CONSULTANT'S SOLE COST AND EXPENSE. IF THE AGREEMENT IS TERMINATED BY THE CITY AS PROVIDED IN THIS SUBSECTION, CONSULTANT SHALL BE PAID FOR ANY SERVICES SATISFACTORILY PERFORMED, AS DETERMINED BY THE CITY AT ITS DISCRETION, UP TO THE DATE OF TERMINATION. 4.6.3 Tem~ination for Insolvency The City also reserves the right to terminate the remaining Services to be performed in the event the Consultant 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 4.6.2. 4.6.4 Sanctions for Noncompliance with Nondiscrimination Provisions In the event of the Consultant's noncompliance with the nondiscrimination provisions of this Agreement, the City shall impose such sanctions as the City or the State of Florida may determine to be appropriate, including but not limited to, withholding of payments to the Consultant under the Agreement until the Consultant complies and/or cancellation, termination or suspension of the Services. In the event the City cancels or terminates the Services pursuant to this Subsection the rights and obligations of the parties shall be the same as provided in Section 4.6.2. 4.7 CHANGES AND ADDITIONS Changes and additions to the Agreement shall be directed by a written amendment signed by the duly authorized representatives of the City and Consultant. No alteration, change, or modification of the terms of this Agreement shall be valid unless amended in writing, signed by both parties hereto, and approved by the City Commission of the City. 4.8 AUDIT AND INSPECTIONS Upon reasonable notice from the City, at any time during normal business hours and as often as the City may deem necessary, there shall be made available to the City and/or such representatives as the City may deem to act on its behalf, to audit, examine and make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. Consultant shall maintain any and all records necessary to document compliance with the provisions of this Agreement. 4,9 ACCESS TO RECORDS Upon reasonable prior notice from the City, Consultant agrees to allow access during normal business hours to all financial records to the City and/or such authorized representatives as it may deem to act on its behalf, and agrees to provide such assistance as may be necessary to facilitate financial audit by the City or its representatives when deemed necessary to insure compliance with applicable accounting and financial standards. Consultant shall allow access during normal business hours to all other records, forms, files, and documents which have been generated in performance of this Agreement, to those personnel as may be designated by the City. 4.10 ASSIGNMENT, TRANSFER OR SUBCONTRACTING The Consultant shall not subcontract, assign, or transfer anywork under this Agreement without the prior written consent of the City. 4.11 SUB-CONTRACTORS The Consultant shall be liable for the Consultant's services, responsibilities and liabilities under this Agreement and the services, responsibilities and liabilities of sub-contractors, and any other person or entity acting under the direction or controls of the Consultant. When the term "Consultant" is used in this Agreement, it shall be deemed to include any sub-contractors and any other person or entity acting under the direction or control of Consultant. All sub-contractors must be approved of in writing prior to their engagement by Consultant. 4.12 EQUAL EMPLOYMENT OPPORTUNITY In connection with the performance of this Agreement, the Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, sex, age, and national origin, place of birth, marital status, or physical handicap. The Consultant shall take affirmative action to ensure that applicants are employed and that employees are treated during their employment without regard to their race, color, religion, ancestry, sex, age, national origin, place of birth, marital status, disability, or sexual orientation. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or termination; recruitment or recruitment advertising; layoff or termination; rates of pay, or other forms of compensation; and selection for training, including apprenticeship. 4.13 CONFLICT OF INTEREST The Consultant agrees to adhere to and be governed by the Metropolitan Miami-Dade County Conflict of Interest Ordinance (No. 72-82), as amended; and by the City of Miami Beach Charter and Code, which are incorporated by reference herein as if fully set forth herein, in connection with the Agreement conditions hereunder. · The Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirectly which should conflict in any manner or degree with the performance of the Services. The Consultant further covenants that in the performance of this Agreement, no person having any such interest shall knowingly be employed by the Consultant. 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 therefrom. 4.14 ,PATENT RIGHTS; COPYRIGHTS; CONFIDENTIAL FINDINGS Any patentable result arising out of this Agreement, as well as all information, design specifications, processes, data and findings, shall be made available to the City for public use. No reports, other documents, articles or devices produced in whole or in part under this Agreement shall be the subject of any application for copyright or patent by or on behalf of the Consultant or its employees or subcontractors, without the prior written consent of the City. 4.15 NOTICES All notices and communications required or permitted under this Agreement must be in writing and delivered either personally to the representatives of the Consultant and the City listed below or may be mailed by registered mail, postage prepaid (or airmailed if addressed to an address outside of the city of dispatch). Until changed by notice in writing, all such notices and communications shall be addressed as follows: TO CONTRACTOR: David Marsh Petton Marsh Kinsella 1420 West Mockingbird Lane, Suite 400 Dallas, Texas 75247 TO CITY: Miami Beach Convention Center Attn: Steve Clark 1901 Convention Center Drive Miami Beach, Florida 33139 (305) 673-7314 Notices hereunder shall be effective: If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day following the date mailed; and if mailed to an address outside the city of dispatch on the seventh day following the date mailed. 4.16 LITIGATION JURISDICTION/VENUE 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 same shall lie in Miami-Dade County, Florida. 4.17 ENTIRETY OF AGREEMENT This writing and the Services embody the entire Agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written with reference to the subject matter hereof that are not merged herein and superceded hereby. 4.18 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 $1,000. Consultant hereby expresses its willingness to enter into this Agreement with Consultant's recovery from the City for any damage action for breach of contract to be limited to a maXimum amount of $1,000. Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant hereby agrees that the City shall not be liable to the Consultant for damages in an amount in excess of $1,000 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 paragraph 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. Not withstanding the above, this section 4.18 shall not in anyway limit the obligation of the City to pay the Consultant for services properly rendered by the Consultant in accordance with this agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 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: CITY OF MIAMI BEACH, FLORIDA By: City Clerk City Manager FOR CONSULTANT: ATTEST: By: (TITLE) Corporate Seal APPR~~ FORM & LANGUAGE & FOR EXECUTION City Attomey~,N~ Date EXHIBIT "A" SCOPE OF SERVICES: Pelton, Marsh, Kinsella located at 1420 West Mockingbird Lane, Suite 400, Dallas, Texas 75247 (Consultant) will provide the following services in Two phases as follows: The City of Miami Beach and SMG are seeking the services of a professional stage lighting and sound consultant to provide recommendations for Phase One as follows: PHASE ONE: 1. BASIC SERVICES Provide a measurement survey and visual observations at the project site of existing conditions pertaining to the design of a new sound and lighting systems for the theater. Measurements will include acoustical parameters as well as physical measurements and photo-documentation required to conceptualize new sound and lighting system designs. This will include meeting with facility representatives to discuss the technical and functional requirements of the new or renovated systems to include: 1. House sound reinforcement system 2. Backstage monitoring and paging systems 3. Lobby monitoring and paging systems 4. Lobby video monitor and RF video distribution system 5. Stage lighting and dimming system The goal for meeting with facility representatives will be to establish the priorities for the renovation, desired control and distribution topography, equipment preferences and budget considerations. The site survey and meeting should occur approximately three weeks after notice to proceed has been given. B. Provide a written "Program of Requirements" along with a detailed estimate of construction costs for the sound and lighting systems, including all associated electrical work. This work will include a review of the existing system construction documents and the 1999 Theatrical Lighting System Study. After the completion of the site survey, a draft will be provided within 45 days. After draft review, a final program will be delivered within 30 days. C. Out-of Office Work 1. Three days in Miami Beach for site survey and meetings. 2. One day in Miami Beach for presentation of draft program. 2. ADDITIONAL SERVICES 10 A. Provision of suitable CAD background drawings. Cost shall be determined on an hourly basis, not to exceed $10,000.00 B. Provision of any architectural drawings or cost estimates associated with the work must be pre-approved by the Project Manager. C. Attendance at meetings or provision of additional site visits beyond what is listed under Basic Services must be pre-approved by the Project Manager 3. COMPENSATION (Phase One Only) A. Compensation for Basic Services will be a fixed fee of $22,570.00 B. Mail, courier, photographic reproduction and out-of-town related expenses (airfare, vehicle, parking, lodging and meals) will be utilized on a reimbursable basis. Expenses are payable as they are incurred and will be billed at cost (Invoices to be paid within 45 days). C. Invoices will be rendered monthly based on the percentage of the contract completed. 4. TIME After notice to proceed is given, consultant will meet with project coordinator within three weeks and conduct a site survey. Approximately one month after the site survey, the consultant will provide a written "Program of Requirements" draft along with a detailed estimate of construction costs for the sound and lighting systems including all associated electrical work for the project coordinators consideration. (Maximum time frame for Phase One shall be 90 calendar days.) 1,]