HomeMy WebLinkAboutMatrix Audio Visual Designs, Inc. - 2018-02-05The Agreement ("Agreement") is entered into between the following parties ("the Parties"): City of Huntington Beach (hereinafter
"Owner or City") located at 2000 Main Street, Huntington Beach, CA 92648 and Matrix Audio Visual Designs, Inc. (hereinafter
AV Contractor") located at 2525 W. Burbank Blvd. Burbank, CA 91505.
In consideration of the mutual execution of this Agreement and the promises made in the Agreement by the Parties, the Parties agree
as follows:
For this Project:
Project Name: Council Chambers AV Upgrade (hereinafter "Project')
Project Number: P000511
Description of Project: Audio visual and control system upgrade for council chambers
Job Site Address: 2000 Main Street, Huntington Beach, CA 92648 (hereinafter "Venue')
Today's Date: 01/03/2018
Revised Date: 112912018
With a Contracted Value of: Two Hundred Twenty Four thousand Eight Hundred Forty Five Dollars and
Eighty Four Cents ($224,845.84), which represents the total price of all Equipment, Software, Work, and other
components comprising the System, including 7.75% (budgeted sales tax) and Excludes Owner Furnished
Products, provided that the Purchase Price amount may be adjusted in accordance with the terms and conditions
contained herein relating to the costs, including variation or modification thereof, of the Equipment, Software,
System, and/or Work.
1. COMPLETE AGREEMENT
1.1. This Agreement shall not be binding upon AV Contractor, unless signed by an authorized representative of the Owner and signed by an officer of AV
Contractor. The individual(s) executing this Agreement and the instruments referenced herein on behalf of Owner and AV Contractor have the legal power,
right, and actual authority to bind Owner and AV Contractor to the terms and conditions hereof and thereof.
1.2. Neither the Owner nor AV Contractor shall assign this Agreement without the written consent of the other, except that the Owner may assign this Agreement
to an institutional lender providing financing for the Project. In such an event, the lender shall assume the Owner's rights and obligations under this
Agreement - AV Contractor shall execute and take all steps reasonably necessary to facilitate such assignment.
1.3. This Agreement, including attachments mentioned in the body as incorporated by references, sets forth the entire agreement between the Parties with
regard to the subject matter hereof. All prior agreements, representations and warranties, express or implied, oral or written, with respect to the subject
matter hereof, are hereby superseded by this Agreement. This is an integrated agreement.
1.4. In the event any provision of this Agreement is deemed to be void, invalid, or unenforceable, that provision shall be severed from the remainder of this
Agreement so as not to cause the invalidity or unenforceability of the remainder of this Agreement. All remaining provisions of this Agreement shall then
continue in full force and effect. If any provision shall be deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of
the scope and breadth permitted by law.
1.5. This Agreement may be modified, superseded, or voided only upon the written and signed agreement of the Parties. Further, the physical destruction or
loss of this document shall not be construed as a modification or termination of the agreement contained herein.
1.6. The Parties agree to act in good faith and to cooperate fully with each other in carrying out the intent of this Agreement, and for that purpose agree to
execute all additional documents as may prove reasonably necessary to accomplish that intent.
1.7. The Parties agree that the laws of the State of California shall be utilized in construing this Agreement and in enforcing the rights and remedies of the
Parties. Any litigation arising out of a dispute concerning the Agreement shall be litigated in County of Orange, California. The Parties agree to venue in
that jurisdiction for all such disputes concerning this Agreement.
1.8. If any suit or action or other proceeding is commenced to enforce or interpret any of the terms or provisions of this Agreement, each Party in such suit or
action or other proceeding shall bear their own attorney's fees and costs incurred, both at trial and on any appeal.
1.9. This Agreement shall inure to the benefit of and shall be binding upon each of the Parties here and their respective agents, representatives, executors,
administrators, trustees, personal representatives, partners, directors, officers, shareholders, agents, attorneys, insurers, employees, representatives,
predecessors, successors, heirs and assigns.
1.10, Each party acknowledges that he or she has had an adequate opportunity to read and study this Agreement, to consider it, to consult with attorneys if he
or she has so desired.
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1.11. This Agreement may be executed in multiple counterparts, all of which shall be deemed originals, and with the same effect as if all Parties had signed the
same document. All of such counterparts shall be construed together with and shall constitute one agreement, but in making proof, it shall only be necessary
to produce one such counterpart. A facsimile transmission shall be as valid and enforceable as an original.
2. AV CONTRACTOR'S RESPONSIBILITIES
2.1. The AV Contractor's services shall be performed in accordance with the degree of professional skill and care required by applicable law and as expeditiously
as is consistent with professional skill and care and the orderly progress of the Project.
2.2. The AV Contractor shall submit for the Owner's approval a schedule for the performance of the AV Contractor's services (per Section 15) which may be
adjusted as the Project proceeds. This schedule shall include allowances for periods of time required for the Owner's review and for approval of submissions
by authorities having jurisdiction over the Project. Time limits established by this schedule approved by the Owner shall not, except for reasonable cause,
be exceeded by the AV Contractor or the Owner.
2.3. The AV Contractor shall designate a representative authorized to act on behalf of the AV Contractor with respect to the Project. Insofar as it is reasonable,
the same person shall remain consistent from Project inception until completion. This representative shall be referred to as the Project Manager.
2.4. The AV Contractor's work shall be neat and workmanlike and shall assign enough workers with the required skills and qualifications to the job to meet its
schedule commitments as outlined at the signing of this document.
2.5. The AV Contractor shall coordinate and cooperate with other trades to ensure satisfactory work progress.
2.6. The AV Contractor shall, at its own cost and expense, comply with all State/Provincial and local laws, ordinances, rules, regulations, codes, standards,
orders, notices and requirements necessary for the prosecution of the Work.
2.7. The AV Contractor will install all equipment in accordance with the manufacturers' instructions unless otherwise approved by the Owner. Where these
instructions are exceeded by any applicable national and local regulations, ordinances, and codes, such regulations, ordinances, and codes shall apply.
2.8. Upon completion of the Work, the AV Contractor shall remove from the site all unused materials, containers, and equipment The AV Contractor will
endeavor to protect all floors, walls, and other adjacent surfaces from stains, marring or other damage. The space shall be dean and undamaged.
2.9. The AV Contractor is not responsible for the operation or the performance of equipment supplied by others outside this contract. The AV Contractor does
not warrant that equipment supplied by others either can be connected to or can work satisfactorily with our system, except as specified in this document.
3. OWNER'S RESPONSIBILITIES
3.1. The Owner shall provide full information in a timely manner regarding requirements for and limitations on the Owner's objectives, schedule, constraints and
criteria.
3.2. The Owner shall furnish to the AV Contractor, within 10 days after receipt of a written request, information necessary and relevant for the AV Contractor to
evaluate, give notice of, or enforce lien rights.
3.3. The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or the designated representative
shall render decisions in a timely manner pertaining to documents submitted by the AV Contractor in order to avoid unreasonable delay in the orderly and
sequential progress of the AV Contractor's services.
3.4. The Owner shall furnish the services, at the Owner's expense, of any and all consultants reasonably required for the proper execution of the Project as and
when requested by the AV Contractor. The AV Contractor shall be entitled to rely upon the accuracy and completeness of any information provided by
these consultants.
3.5. The Owner shall furnish all legal, accounting, and insurance services that may be necessary at any time for the Project to meet the Owner's needs and
interests.
3.6. The Owner shall provide prompt written notice to AV Contractor if the Owner becomes aware of any fault or defect in the Project, including any errors,
omissions, or inconsistencies in AV Contractor's proposal and/or quotation.
3.7. The Owner shall ensure that the Project is secure and set up for both pre -wiring and installation of the Equipment in accordance with the requirements of
AV Contractor. The Owner shall be solely responsible for the Project site conditions, including the security, safety, and fitness of the areas in which AV
Contractor's services are to be performed. The Owner warrants to AV Contractor that the Project site is adequate and sufficient to install, use, and store
the Equipment.
3.8. At the time of signing of this Agreement, the Owner shall have identified and provide information to the AV Contractor of all other equipment and connections
that will interface with the Equipment to be provided by the AV Contractor related to this Project, with the understanding that any omissions to the information
provided to date may result in additional charges from the AV Contractor in order to accommodate such changes or omissions.
3.9. The Owner shall provide access to the Project site during normal business hours to allow AV Contractor to perform its services in a timely and orderly
manner. Further, the Owner shall provide suitable and secure locations at the Project site for storage of the Equipment prior to installation.
3.10. The Owner shall provide a representative to accept delivery of equipment from the AV Contractor as required at the Project site, and shall remain liable for
any loss or damage to the Equipment located at the Project site.
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Matrix Audio VISLIIII Designs, Inc.
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4. SCOPE OF SERVICES
4.1. Within the context of this document, "Approve" means review of and comment on, existing conditions or design by others. "Design" means complete design
service including drawings. "Specify" means establishment of criteria for design to be done by others.
4.2. The AV Contractor shall provide, develop, install, and integrate control system for the Project. The AV Contractor will consult with the Owner and Owner's
representatives or authorized agents in order to review and evaluate the related architectural plans and systems requirements for the Project. The AV
Contractor will make all recommendations or modifications as may be required in cooperation with the Owner, or others as directed by the Owner, and shall
assist in finalizing a functional description of the system Scope to include schematic designs, design administration, preparation of a preliminary and final
budget estimate of audio/visual system costs, attendance at progress meetings, and preparation of preliminary and final drawings and documentation.
4.3. The AV Contractor shall inspect audio/visual systems installed in the Project and will assist the Owner in the commissioning of the audio visual systems.
The AV Contractor will make recommendations as to training, support, and maintenance of the audio/visual systems.
4.4. The specific Scope of Services for this Project are as follows: Refer Council Chambers AV Update SOW Revised.
5. INTELLECTUAL PROPERTY
5.1. The Parties agree that AV Contractor shall be solely entitled to all patent rights and all copyrights to any products, tools, devices, manuals, plans, drawings,
customized programs and software, and anything else subject to patent or copyright (the "Intellectual Property') invented, generated, developed, or
otherwise produced by AV Contractor or its agents, representatives, employees, and subcontractors in connection with the performance of the Services,
and shall at all times remain the property of the AV Contractor. The Parties hereto intend and agree, however, that the AV Contractor shall grant a perpetual,
non-exclusive, non -transferable license to any and all products, tools, devices, manuals, plans, drawings, customized programs, and software for the life of
the Project; provided, however, that:
5.1.1. Such license shall be non -transferable by the Owner without the prior written consent of AV Contractor, and shall be exercised by the Owner
solely for the Owner's benefit in direct connection with the Project following the date of this Agreement;
5.1.2. Licensing rights as outlined shall require the express written permission of the AV Contractor in order to reproduce or distribute to any other third
party any or all of the above mentioned drawings, plans, specifications, reports, and other documentation; and
5.1.3. The AV Contractor shall maintain rights to all such software source codes, drawings, plans, specifications, reports, and other documentation, for
use in connection with the conduct of the AV Contractor's ordinary course of business, without any compensation or payment of any kind or
nature being made to the Owner in connection with such use.
5.1.4. The AV Contractor shall provide the Owner with current copies of all software upon request; these shall be for archival and administrative
purposes only. Software shall include source code to the custom code developed for the control system including touch panel layout.
5.1.5. Notwithstanding the foregoing, as consideration for the limited licensing rights in connection with the above, the Owner hereby agrees to:
5.1.5.1. Use its best efforts to promote and credit AV Contractor's integral role in connection with the completion and operation of the Project,
which efforts shall include, without limitation, the advertisement and promotion, whenever and wherever reasonably possible, of
Supplier as the designer, provider, and supplier of the technology used in connection with the Project.
5.1.5.2. Permit AV Contractor to cite the Project, together with AV Contractor's role, relative to the design technology developed and used in
connection therewith, for purposes of AV Contractor's advertising, marketing, and public relations efforts.
6. DISPUTE RESOLUTION
6.1. MEDIATION
6.1.1. In the event that any claim, dispute, or other matter in question arises out of or relates to this Agreement, Owner and AV Contractor shall first
attempt resolution of same via mediation prior to seeking resolution through arbitration and/or initiating legal proceedings. If such a matter relates
to or is the subject of a lien arising out of AV Contractor services, AV Contractor may proceed in accordance with applicable law to comply with
the lien notice or filing deadlines prior to resolution of the matter by mediation or by arbitration.
6.1.2. The Owner and AV Contractor shall endeavor to resolve claims, disputes, and other matters in question between them by mediation which,
unless the Parties mutually agree otherwise, shall be in accordance with the procedures of an established national, regional, or local mediation
service. Request for mediation shall be filed in writing with the other party to this Agreement and with such mediation service.
6.1.3. Parties shall mutually agree in writing as to the particular mediation service and/or mediator to conduct and/or officiate the mediation process.
The Parties shall share the mediator's fee and equally. The mediation shall be held in the place where the Project is located, unless another
location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having
jurisdiction.
6.2. ARBITRATION
6.2.1. Any dispute or disagreement arising between the Parties in connection with this Agreement which is not settled to the mutual satisfaction of the
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2525 W, Burbank Blvd.
Burbank, CA 91505 ?anted on 2/5/20181:58 PM
Parties by the mediation process above within sixty (60) days (or such longer or shorter period as may be mutually agreed upon) from the date
that either party initiates a formal mediation request may be settled by non -binding arbitration.
6.2.2. A demand for arbitration shall be made within a reasonable time after the claim, dispute, or other matter in question has arisen. In no event shall
the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such a claim dispute or other matter
in question would be barred by the applicable statute of limitations.
6.2.3. No arbitration arising out of or relating to this Agreement shall include, by consolidation or joinder or in any other manner, an additional person
or entity not a party to this Agreement, except by written consent containing a specific reference to this Agreement and signed by the Owner, AV
Contractor, and any other person or entity sought to be joined. Consent to arbitration involving an additional person or entity shall not constitute
consent arbitration to any claim, dispute, or other matter in question not described in the written consent or with a person or entity not there
named or described. The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented
to by Parties to this Agreement shall be specifically enforceable in accordance with applicable law in any court having jurisdiction over it.
6.2.4. The Parties agree that the arbitrator(s) shall have no power or authority to make awards or issue orders of any kind except as expressly permitted
by this Agreement, and in no event shall the arbitrator(s) have the authority to award punitive or exemplary damages.
6.2.5. The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon in accordance with applicable law in any
court having jurisdiction.
6.2.6. The cost of the arbitration, including the fees and expenses of the arbitrator(s), will be shared equally by the Parties unless the award otherwise
provides. Each party shall bear the cost of preparing and presenting its case.
6.3. LEGAL PROCEEDINGS
6.3.1. In the event any dispute or disagreement arising between the Parties in connection with this Agreement which is not settled to the mutual
satisfaction of the Parties by the mediation process above within sixty (60) days (or such longer or shorter period as may be mutually agreed
upon) from the date that either party initiates a formal mediation request, legal proceedings may be initiated by the allegedly offended party.
6.3.2. Each party in any legal proceedings arising out of or related to this Agreement, shall bear their own costs, expenses, fees, and attorneys' fees
incurred in such legal proceedings including but not limited to enforcement of any judgment(s) obtained via same proceedings. Whether Owner
or AV Contractor is prevailing party in such legal proceedings will be determined in accordance with California law.
6.3.3. Parties to this Agreement agree that any legal proceedings arising out of and/or related to this Agreement shall be limited to the jurisdiction and
venue of County of Orange, State of California.
7. PERMITS
7.1. The Owner shall bear at its own cost all consents, licenses, permits, approvals, authorizations, and inspections from local government authorities, agencies,
or officials required for the prosecution and completion of the Work and the delivery of the System as obtained by either the Owner or the AV Contractor in
relation to this Project.
7.2. Where such consents, licenses, permits, approvals, authorizations, and inspections are obtained by the AV Contractor, such costs shall be considered in
addition to the approved contract cost, and shall be subject to a 0% administration fee above and beyond the cost paid by the AV Contractor.
8. Exclusions and Assumptions
8.1. Exclusions
8.1.1. Patch work — We do not see any patch work except for the two electrical outlets for each line array loudspeakers. The patch work for these
known items is included in our proposal.
8.1.2. Painting
8.1.3. Overtime and/or shift work
8.1.4.
Prevailing wage
8.1.5.
Certified payroll
8.1.6.
Fees and permits
8.1.7. Parking
8.1.8. All cabling within walls and ceiling shall be plenum rated.
8.1.9. There are only two outlets that are required (Known at this time), one for each loudspeaker. These two outlets are included in our proposal.
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9. REPRESENTATIONS
9.1. The AV Contractor is not, and does not represent to be, a licensed architect, electrician, electrical engineer, mechanical engineer, or structural engineer
and shall not perform, nor be responsible for the performance of, the work of such persons. All information, drawings, schematics, specifications, or other
documents containing references to, or depictions of, architectural, electrical, or mechanical attributes which are supplied to the Owner by the AV Contractor
hereunder will be provided for the sole purpose of indicating the AV Contractor's suggestions related to the Work, and the AV Contractor shall have no
liability whatsoever, including liability for the Owners reliance thereon, except as such information, drawings, documents, specifications, or other documents
may relate to the performance of the System.
9.2. The Owner's signing and delivery of this Agreement and its performance of its obligations hereunder:
9.2.1. Have been duly authorized by all necessary corporate action;
9.2.2. Do not conflict with any terms or conditions of its Certificate of Incorporation or Byaaws;
9.2.3. Do not violate any law, regulation, order, judgment or decree by which it may be bound; and
9.2.4. Will not violate or result in a breach, acceleration, or default under any agreement or understanding to which it is a party or by which it may be
bound which will materially affect its ability to perform its obligations hereunder.
9.3. When signed and delivered by the Owner, this Agreement will constitute the legal, valid and binding obligation of the Owner, and will be enforceable against
it in accordance with its terms and conditions, subject only to the rights of creditors under applicable laws relating to bankruptcy or the relief of debtors.
10. TERM & TERMINATION
10.1. The term of this Agreement will be from the Effective Date until completion of the Work and payment of the Purchase Price, except as otherwise provided
for herein.
10.2. Except as otherwise provided for herein, either party may terminate this Agreement upon notice in writing to the other in the event that such other party
shall breach or be in default of any of the covenants, obligations, warranties, representations, terms, or conditions of this Agreement in a material manner
(a "Default") and such other party fails to remedy such Default within thirty (30) days after notice thereof from the party not in default; provided that where a
remedy will reasonably require greater than thirty (30) days to complete, the non -defaulting party may terminate this Agreement if the defaulting party does
not start to remedy the Default within the thirty (30) day period, or, once started, fails to diligently proceed with and complete the remedy. Such notice shall
provide in reasonable detail the basis upon which the Default is claimed.
10.3. In the event that either party shall cease conducting business in the normal course, become insolvent, make a general assignment for the benefit of creditors,
suffers or permits the appointment of a receiver for its business or assets or shall avail itself of, or become subject to, any proceeding under applicable
bankruptcy legislation or any other applicable statute relating to insolvency or the protection of rights of creditors, then the other party may terminate this
Agreement.
10.4. In the event the AV Contractor terminates this Agreement pursuant to either paragraph 10.2 or 10.3 of this Section, then all licenses granted by AV Contractor
to the Owner shall immediately terminate and the Owner shall immediately discontinue use of any Software furnished hereunder and return to the AV
Contractor all copies of such Software and any Confidential Information furnished hereunder.
11. ADDITIONAL COSTS
11.1. The following costs shall be borne by the Owner in addition to the approved contract cost, and shall be billed in full plus an administration fee of 0% at the
completion of the Project:
11.1.1. Parking
11.1.2. Equipment Storage (under the conditions defined within Section 16.7)
11.1.3. Specifically requested Insurance other than as defined within Section 17
11.1.4. Performance and Labor bonds
11.1.5. Permits, licenses, approvals, and Inspections as defined within Section 7
12. PREVAILING TERMS
12.1. If any purchase order, acceptance, or other document is used by Purchaser in connection with the purchase of the System, then notwithstanding any
provisions therein contained to the contrary, the terms of all such documents shall be governed by the provisions of this Agreement and any terms thereof
which are inconsistent with, different from, or in addition to, the provisions of this Agreement shall be null and void and of no force or effect.
13. CHARGES AND INVOICING
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13.1. The Owner shall pay to AV Contractor the charges for the equipment, all labor, materials, and services as detailed by AV Contractor's proposal and revision
along with any modifications and changes to same as outlined in any subsequent change orders.
13.2. All charges are inclusive of federal, State/Provincial and local sales, use, excise, utility, and gross receipts taxes and other similar tax -like charges, including
tax -related surcharges, which the Owner agrees to pay. In the event the Owner provides the AV Contractor with a duly authorized tax exemption certificate,
the AV Contractor agrees to exempt the Owner in accordance with the law; effective on the date exemption certificate is received by the AV Contractor.
13.3. The AV Contractor shall invoice the Owner for charges due under this Agreement as set forth herein. All invoices are due and payable within 30 days of the
invoice date with the exception of the invoice for the Project initiation fees which is due and payable upon signing the Agreement. The Owner is responsible
for meeting payment terms as listed below. The AV Contractor reserves the right to withhold delivery of products, installation, and maintenance services
pending this payment.
13.4. All invoiced amounts that remain unpaid for more than 30 days shall be subject to a finance charge of 0% per month, computed from the date of invoice.
13.5. The Owner shall not make any deductions of any kind from any payment becoming due to the AV Contractor unless Owner shall have received an official
credit memorandum from AV Contractor authorizing such deduction.
13.6. If the Owner fails to make any payment to AV Contractor as provided for herein, the AV Contractor may, upon 30 business days prior written notice to the
Owner, suspend performance of the Work until such payment is received in full and the period of suspension shall be added to the time which AV Contractor
has estimated to complete performance of same.
13.7. Payment terms and schedule are agreed as follows:
Below you will find our payment schedule. Matrix Audio Visual Designs is an audio visual system integration firm. We purchase equipment as needed per
job basis. Thus our vendors need to be paid on time as equipment is delivered. We ask you to adhere to the following payment terms so in turn we can
honor their payment schedule.
Payment Schedule
Balance
Total Project Cost: $224,845.84
Contract Execution (20% of Equipment): $30,758.73
Ordering Equipment (25% of Equipment): $38,448.42
Equipment received by Matrix AV (25% of Equipment): $38,448.42
Equipment Delivered to Client and installation Start: $57,857.13
Labor - 50% Progress: $29,666.57
Labor - 80% Progress: $5,933.31
Completion: $23,733.26
$194,087.10
$155, 638.69
$117,190.27
$59,333.14
$29,666.57
$23,733.26
14. OWNERSHIP
14.1. All hardware shall remain the property of AV Contractor until final payment is received.
14.2. Upon delivery of any equipment to site, a representative of the Owner shall be required to sign for acceptance of such equipment.
14.3. From the point that any hardware is delivered to site, responsibility for the safekeeping and security of such equipment shall be borne by the Owner, who
shall remain responsible for the cost of any repair or replacement of such equipment damaged or lost as a result of any actions taken by any individual
other than in the direct employment of AV Contractor.
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15. PROJECT SCHEDULE
15.1. Time is of the essence in performance of this Contract. Both the Owner and the AV Contractor shall proceed with the work in a prompt and diligent manner
in accordance with the current Project schedule.
15.2. The AV Contractor shall coordinate its work with the work of others on the site in a manner which will avoid conflict or interference with the work of AV
Contractor and others and which will avoid delay in the completion of any part or the entire Project.
15.2.1. The Owner recognizes that construction delays could affect the schedule for any given system, and shall advise AV Contractor immediately of
any adjustments to the Project schedule that may have an impact on any system related to AV Contractor's Scope of Work. Upon presentation
of a written request and cost adjustment, the Owner will review, in an expeditious manner, such charges as presented by AV Contractor to
increase the likelihood of meeting the schedule.
153. AV Contractor will require various sign -offs and approvals throughout the design, engineering, and installation process. The AV Contractor, where
applicable, shall provide the Owner with a required date of acceptance in order to maintain the agreed Project schedule. At that time, the Owner agrees to
not unreasonably withhold its agreement for such documents. A minimum of 7 business days, where possible, shall be allotted by AV Contractor to allow
for communication and response from the Owner without penalty to the schedule or Project.
15.4. AV Contractor shall not be liable for any default or delay caused by any third party impeding production or delivery of the products ordered. All promises of
delivery are made in good faith and AV Contractor will make best efforts to fulfill them. However, if AV Contractor is unable to meet a scheduled delivery
date, then AV Contractor shall not be liable for additional transportation charges incurred on the Owner's request to use a faster means of transportation.
16. DELAYS
16.1. Delays by other trades, Owner's schedules, approval of AV Contractor's drawings and submittals, change orders, or non -availability of specific equipment
shall be cause for reasonable extensions of completion date.
16.2. The Owner's criteria will always be the AV Contractor's goal; however, no liability can be assumed for such delays.
16.3. Any delays due to performance of other trades and/or contractors or labor disputes/strikes related to trades outside AV Contractor's obligations under this
Agreement will result in additional fees.
16.4. Identified shipping and delivery dates of Equipment are provided in good faith and represent AV Contractors best estimate. If the manufacture, delivery, or
installation of the Equipment is delayed, in whole or in part, through no fault of AV Contractor, including, but not limited to, Acts of God, terrorism, war,
strikes, fire, and governmental acts, AV Contractor's performance time shall be extended and AV Contractor's compensation shall be adjusted due to such
a delay.
16.5. AV Contractor shall not be liable for any default or delay caused by any third party impeding production or delivery of the products ordered.
16.6. Freight charges contained in this proposal, if any, are estimated to allow standard ground- based shipping methods. If expedited shipping is requested by
the Owner, or is required in order to meet a scheduled delivery date, AV Contractor shall be additionally compensated for additional transportation charges
incurred on the Owner's behalf.
16.7. If the Owner requests a delay in the shipment or installation of Equipment that has already been ordered or manufactured, AV Contractor upon receiving
that Equipment may place the identified Equipment in storage at the Owner's expense.
16.8. The Owner shall pay the storage charges upon acceptance.
16.9. If the Owner requests a delay in the shipment or installation of Equipment before the Equipment has been ordered or manufactured, the Owner shall pay
any increases in the Equipment's price occurring prior to the date of subsequent release of order by AV Contractor.
16.10. Notwithstanding any provision to the contrary in this Agreement, if the Owner requests a delay, or if for any reason the Project is suspended for thirty (30)
consecutive days, the Owner shall compensate AV Contractor within 15 days of the date of notification of request of delay by Owner or within 15 days of
the thirtieth (30th) day of suspension,
16.10.1, The full price of services performed prior to the request or suspension, and
16.10.2. The full price of all Equipment ordered and applicable storage charges.
16.11. When the Project is resumed, AV Contractor shall be compensated for expenses incurred in the interruption and resumption of AV Contractor's services.
AV Contractor's fees for the remaining services and the time schedules shall be equitably adjusted.
16.12. If the Project is suspended or AV Contractor's services are suspended for more than 60 consecutive days, AV Contractor may terminate this Agreement by
giving not less than 15 days' written notice.
17. INSURANCE
17.1. The AV Contractor shall, at its own expense, carry all workers compensation insurance to protect AV Contractor's employees and comprehensive general
liability insurance for the amount of $2,000,000.00 with umbrella coverage of $1,000,000.00 for the protection of the AV Contractor and the Owner.
17.2. This will cover injury to persons or property arising from acts of the AV Contractor during the progress of the work.
17.3. In addition to the general liability insurance, AV Contractor shall, at its own expense, carry $1 000,000.00 of liability coverage for AV Contractor's vehicles.
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17.4. Any sub -contractors will be required to provide similar insurance coverage.
17.5. The Owner shall obtain and pay for insurance against injury to its own employees, if any, and persons on the site at the Owner's direction.
17.6. The AV Contractor shall not be responsible for any on site damage solely caused by the Owner or his agents, or by Acts of God beyond the control of the
AV Contractor.
17.7. The AV Contractor shall submit a Certificate of Insurance naming the Owner as additional insured upon written request by the Owner.
18. LIMITATION OF LIABILITY
IN NO EVENT SHALL AV CONTRACTOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES; LOSS OF REVENUE
OR PROFIT; OR LOSS, DAMAGE OR DESTRUCTION OF DATA OR PROPERTY INCLUDING SOFTWARE PROBLEMS EXPERIENCED BY OWNER IN
SOFTWARE PACKAGES OR DATABASES IN PLACE PRIOR TO THE INSTALLATION OF ANY SOFTWARE HEREUNDER AND INCLUDING ANY
ELECTRICAL DAMAGE OR ELECTRICAL PROBLEMS THAT MAY OCCUR AS A RESULT OF ANY OF THE USE OF THE EQUIPMENT OR INSTALLATION
OR MAINTENANCE SERVICES PROVIDED UNDER THE TERMS OF THIS AGREEMENT; REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, EVEN IF AWARE OF THE POSSIBILITY THEREOF. AV
CONTRACTOR'S LIABILITY FOR DAMAGES FOR BREACH OF THE AGREEMENT OR ARISING IN ANY OTHER RESPECT OUT OF THIS AGREEMENT,
REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE MONIES PAID TO AV CONTRACTOR BY OWNER FOR THE ITEM(S) OF EQUIPMENT
OR SERVICE GIVING RISE TO THE CAUSE OF ACTION; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO PERSONAL
INJURY, INCLUDING DEATH OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AV
CONTRACTOR. IT IS THE OWNER'S RESPONSIBILITY TO ENSURE THAT ALL OF ITS DATA FILES ARE ADEQUATELY DUPLICATED AND
DOCUMENTED. AV CONTRACTOR WILL NOT BE RESPONSIBLE FOR THE OWNER'S FAILURE TO DO SO, OR FOR THE COST OF RECONSTRUCTION
DATA STORED ON DISK FILES, TAPES, MEMORIES, ETC., WHICH IS LOST DURING THE COURSE OF PERFORMANCE OF AV CONTRACTOR
HEREUNDER.
19. FORCE MAJEURE
19..1. AV Contractor shall not be deemed in breach of contract, negligent, at fault, or liable for any delay or failure of performance resulting from Acts of God, war,
accidents, riots, terrorism, civil insurrection, labor disputes, strikes or any other cause not the fault of and beyond the reasonable control of AV Contractor;
provided, that AV Contractor will give the Owner prompt notice of the delay in sufficient detail to permit the Owner the opportunity to minimize the effect of
such delay, if practicable.
20. WARRANTY
20.1. All equipment furnished by AV Contractor shall be accompanied by each manufacturer's standard warranty. AV Contractor shall be solely responsible for
seeing that warranty repairs are made.
20.2. In addition to the standard manufacturer's warranty, AV Contractor warrants that all Equipment and installation shall be fit for its intended purpose as
outlined in the Statement of Work and free from defects in materials and workmanship for one year after Substantial Completion.
20.3. Notwithstanding the foregoing, AV Contractor's warranty obligations shall not apply to the extent that the Equipment has been subjected to abuse,
unauthorized modifications or alterations, improper maintenance, unauthorized or improper repair and misuse, including, but not limited to, operating the
Equipment outside of its environmental, performance, electrical, temperature, or humidity specification.
20.4. For any services covered under the AV Contractor's one (1) year warranty, AV Contractor shall be the sole source utilized for repairs. The Owner agrees
to provide access for any scheduled or requested services of the System or Equipment. If the Equipment is not available during the scheduled time, AV
Contractor may charge the Owner its normal trip charge and, if asked to wait on -site, AV Contractor's current published hourly rates for standing by until
the Equipment is made available or until instructed to return at another time.
21. DURATION OF WARRANTY
21.1. Except as otherwise provided by virtue of any manufacturer's warranty set forth in Paragraph 22.2, all warranties made herein by AV Contractor shall
commence as of the execution of this Agreement, and shall remain in effect for a period of one (1) year following the achievement of Substantial completion,
as outlined within Section 20 of this document, or first beneficial use, whichever occurs first.
21.2. In the event that the Owner desires to engage AV Contractor to perform and/or provide additional services and/or Project maintenance following the
expiration of said one (1) year warranty period, AV Contractor shall submit to the Owner a quotation for an extended service and/or maintenance
arrangement.
22. WARRANTY CLAIMS
22.1. Upon receipt of written notice from the Owner of any warranty claim pursuant to this Section, the Owner may, as its sole remedy against AV Contractor
under this Agreement, require AV Contractor to correct any Services not conforming to the warranties set forth herein, or promptly repair and/or replace
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any deficient goods, materials, or equipment sold or provided by AV Contractor in connection herewith.
22.2. The cost and expense of all such remedial work, so as to bring the Services in compliance with the warranties set forth herein, shall be borne solely by the
AV Contractor.
22.3. AV Contractor's sole obligation in connection with this Section shall be limited to the correction and/or repair of any Services, or the repair and/or replacement
of any goods, materials, or equipment sold or provided to the Owner in connection therewith, which do not conform to the warranties set forth herein.
22.4. AV Contractor shall assume no liability or expense for any corrections, repairs, or replacements except those performed by AV Contractor or its authorized
agents, and AV Contractor shall not be liable for any expense or damages beyond the actual cost of correction, repair, or replacement as set forth in this
Section. With respect to all repair and/or replacement obligations imposed upon AV Contractor pursuant to this Section, it shall be within the AV Contractor's
sole discretion as to whether to repair or replace any deficient goods, materials, or equipment; which option shall in all events be accepted by the Owner
so long as the deficient goods, materials, or equipment, as applicable, are made to conform to the warranties set forth by AV Contractor pursuant to this
Section.
22.5. THE WARRANTIES SET FORTH IN THIS ARTICLE ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. THE REMEDIES SET FORTH IN THIS ARTICLE IV ARE EXCLUSIVE AND ARE ACKNOWLEDGED BY THE OWNER TO BE IN LIEU OF
ALL SUCH OTHER REMEDIES AS MAY OTHERWISE BE AVAILABLE TO THE OWNER AT LAW OR IN EQUITY.
23. SUBSTANTIAL COMPLETION & ACCEPTANCE
23.1. Upon completion of installation and testing, notification will be transmitted by the AV Contractor to the Owner of such completion in the form of a Certificate
of Substantial Completion.
23.2. A demonstration to the Owner of system functionality, in keeping with the Scope of Work as outlined herein, shall be scheduled within 7 days of such
notification at a time mutually acceptable to both Parties.
23.3. During the demonstration, the Owner shall prepare a punch list of deficiencies; if any deficiencies are noted during the demonstration, these shall be noted
on the Certificate of Substantial Completion.
23.4. AV Contractor and the Owner shall agree upon and identify any deficiencies that would prevent the Owner from having beneficial use of the System(s) and
Equipment.
23.5. The AV Contractor shall promptly correct any deficiencies deemed as preventing beneficial use, at which point the Owner shall sign the Certificate of
Substantial Completion. This shall be deemed as Substantial Completion.
23.6. In no event shall the Owner use or operate the System(s) or Equipment until AV Contractor achieves Substantial Completion.
23.7. Should the Owner use or operate the system prior to the AV Contractor achieving substantial completion, the Owner will automatically deem the Project
substantially complete, coincidentally triggering and accepting any payment conditions that may be associated with this milestone, with any outstanding
deficiency resolution by the contract now deemed a part of final acceptance and signoff.
23.8. Promptly following AV Contractor's provision to the Owner of a Certificate of Substantial Completion, the AV Contractor shall remedy any remaining
deficiencies noted at the time of Substantial Completion, and the Owner shall execute a mutually acceptable Final Acceptance and Project Completion
Agreement indicating that all facets of the Services have been completed by AV Contractor in accordance with the terms and conditions of this Agreement.
24. CHANGES IN THE SCOPE OF WORK
24.1. Costs resulting from material changes in the Scope of Work of this Project by the Owner, additional requirements or restrictions placed on AV Contractor
by the Owner, or changes in the configuration of the Equipment described herein, will be added to, or subtracted from, the contract value depending upon
the changes required.
24.2. When AV Contractor becomes aware of the nature and impact of the change, a Contract Change Order will be submitted for review and approval by the
Owner, prior to continuing work. Contract Change Order cost calculations will be commensurate with the materials and labor rates provided within the base
contract.
24.3. Such changes shall be billed at 100%of the approved value upon completion of the change, and shall not be subject to the progressive payment schedule
as outlined within Section 13 of this document.
25. RETURN POLICY & RESTOCKING CHARGES
25.1. Under no circumstances shall the Equipment be returned by the Owner without AV Contractor's Return Merchandise Authorization (RMA) number.
25.2. The following conditions apply to systems included in this Agreement:
25.3. No custom equipment returns will be allowed.
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Matrix Audio Visual Designs, Inc. T E C H N 0 L. 0 G Y J E R V I C E S 0- Ii 7 I 0 1 S
2525 W, Burbank Blvd.
Burbank, CA 91505 Pr''tea oi2,':
25.4. Return of equipment damaged by the Owner, or any of their representatives will not be accepted.
25.5. Equipment returned for any reason, other than warranty repair or defect, must
25.6. Be in original "as -new", undamaged and untarnished condition
25.7. Include, at the time of return, all supplied accessories in original "as -new", undamaged and untarnished condition, and
25.8. Include, at the time of return, all original packaging, manuals and documentation for any returns to be accepted.
25.9. It shall be the Owner's responsibility to provide storage for such packaging should they wish to retain such subsequent to equipment delivery.
25.10. Returns of software products sold and delivered will not be accepted.
25.11. Restocking charges for equipment subject to return shall be invoiced to the Owner as follows:
25.12. Costs of any restocking fees to be charged by the Equipment vendor to AV Contractor to restock the items in question.
25.13. All related miscellaneous costs related to the return of such goods, including, but not limited to, transportation, brokerage, etc.
25.14. Labor charges associated with removal, project administration, project management, system re -engineering, system re -programming, system re -drafting,
handling of goods, etc.
26. ASSIGNMENT
26.1. Neither party may assign or transfer to any person or entity its rights or obligations under this Agreement without the prior written consent of the other party,
which consent shall not be unreasonably withheld.
26.2. Any prohibited assignment of this Agreement or the obligations hereunder shall be null, void, and of no effect.
26.3. Upon permitted assignment hereunder, the terms and conditions of this Agreement shall become the direct and primary obligations of the assignee or
successor in interest.
26.4. Subject to the foregoing, all of the terms, conditions, and provisions of this Agreement shall be binding upon and shall inure to the benefit of each party's
permitted successors and assignees.
27. NOTICES
27.1. A notice, document, or other communication required hereunder shall be deemed to have been properly given or delivered if same is delivered by hand,
sent via fax or email and confirmed by certified mail, or sent by certified or registered mail to the following address:
OWNER
Name: City of Huntington Beach
Address 1: 2000 Main Street
Address 2: Huntington Beach, CA 92648
Contact Name: Jim Slobojan
Tel: 714 960-8820
Fax:
E-mail: isloboian(7surfcity-hb.org
28. PUBLICITY
AV CONTRACTOR
Matrix Audio Visual Designs, Inc.
2525 W. Burbank Blvd.
Burbank, CA 91505
Hovik Mirzakhanian
Tel: 818 841-4700 Ext. 262
Fax: 818 841-4707
E-Mail: hovik(a.matrixay.com
28.1. The Owner agrees that the AV Contractor may publicize and advertise its relationship with and work for the Owner to promote the AV Contractor's business.
28.2. The Owner agrees the AV Contractor upon request and at an agreed and scheduled time may photograph its work related to this Project at the Owner's
location(s). The Owner shall release all rights of reproduction of such photos to the AV Contractor; however, upon request the Owner shall be afforded any
rights to reproduction or use of such photos for the Owner's purposes without cost
28.3. As requested by City of Huntington Beach that in such publicity cases or promotions, the use of City Seal and City logo shall be prohibited.
29. NON -SOLICITATION
29.1. The Owner agrees that it will not, without the prior written consent of the AV Contractor, during the term of this Agreement or for a period of one (1) year
after any direct contact with the employee;
29.2. Induce, entice, hire, or attempt to hire or employ any employee of the AV Contractor.
29.3. Contact and/or solicit any other Person that has an exclusive business relationship with the AV Contractor in the AV Contractor's Business and which
provides products and services to the AV Contractor.
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30. ACCESS TO SITE — HOURS OF ACCESS
30.1. So as to ensure proper and timely performance of its duties, AV Contractor shall have access to the Project site during all normal business hours and
otherwise upon the reasonable consent of the Owner.
30.2. AV Contractor shall not be liable for any delay or failure relative to the provision of its duties caused by the failure of Owner or site status to provide such
access.
30.3. The Owner agrees that AV Contractor shall not be liable for any additional costs related to site access outside of these hours as a result of any delay per
Sections 16 or 18 of this Agreement.
30.4. Any requirement for the need to work overtime shall be presented by the AV Contractor to the Owner in writing for approval prior to being undertaken; the
Owner agrees to approve such charges or grant an extension to the completion schedule within one (1) business day.
30.5. If the site is not available during the scheduled time, the AV Contractor may charge the Owner the greater of its minimum callout/trip charge or, if asked to
wait on -site, the AV Contractor's hourly rates to stand by until the site is made available, plus travel time and mileage allowances if instructed to return at
another time.
The Parties, by their signatures below, have executed this Agreement and agree to be bound by it.
By: City of Huntington Bea h
Si e
Date
By: Matrix Audio Vis signs, Inc.
nature ,
Hovik Mirzakhanian
Vice President
Title
1 /28/2018
Date
APPROVED M Receive and File
B' IChI l E. GATES
C A`T 01I
CITY QF �INTINOMIV @WM City Clerk
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Matrix Audio Visual Designs, inc. T r. C� u c L D o u s
252.5 W. Burbank Blvd.
Burbank, CA 91505 Prnted on 2/5/2o18 1:58 PM