Agreement 06/13/1996
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AGREEMENT BY AND BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
OMNICOM, INC.
THIS AGREEMENT (the "Agreement") is dated as of the date that the last party
hereto signs this Agreement and is by and between the CITY OF MIAMI BEACH, FLORIDA,
a Florida municipal corporation (the "City"), and OMNICOM, INC., a Florida corporation, 930
Thomasville Road, Suite 200, Tallahassee, Florida 32303 ("Omnicom").
IN EXCHANGE for the mutual promises set forth herein, and other good and
valuable consideration, the receipt and adequacy of which is hereby conclusively acknowledged, the
parties agree as follows:
1. SCOPE OF SERVICES.
Omnicom shall perform, in a professional and diligent manner, those services
specified in Exhibit "A", which exhibit is attached hereto and incorporated herein. At all times,
Omnicom shall perform these services for the benefit and to the satisfaction of the City. Omnicom
acknowledges that it is not performing these services for the benefit, to the satisfaction or at the
direction of PCS PrimeCo, L.P. and will not perform these services for the benefit or at the direction
ofPCS PrimeCo, L.P.
2. TERM.
The term of this Agreement shall run from the date of this Agreement until
the City and Omnicom have performed all of their obligations under this Agreement.
3. COMPENSATION.
The total compensation to be paid by the City to Omnicom pursuant to the
Agreement, including Omnicom's fees and all expenses of any kind to be incurred, shall not exceed
$10,000. Omnicom's fee will be based on the time expended by Omnicom in performing the
services under this Agreement, at the rates indicated on Exhibit "B", which exhibit is attached hereto
and incorporated herein. All expenses incurred must be reasonable and out-of-pocket.
Omnicom will submit an invoice to the City for services performed and
expenses incurred (I) approximately 30 days after the date of this Agreement, (2) on or near each
30 day anniversary thereafter and (3) after the performance of all its services under this Agreement.
City will pay Omnicom the amount of the invoice within thirty (30) days after the City's receipt of
the invoice. All invoices must provide a detailed breakdown of time incurred, to one quarter of an
hour, and expenses must be supported by written documentation, such as receipts.
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4. TERMINATION.
The City can, in its sole discretion, terminate this Agreement at any time upon
written notice to Omnicom. In the event of such termination and provided that Omnicom has not
defaulted under this Agreement, Omnicom's compensation will be prorated as of the date of the
City's written termination notice.
5. DEFAULTS.
Omnicom shall be in default of this Agreement if Omnicom fails to fulfill in
a timely manner (except where due to causes beyond the reasonable control of Omnicom, such as
acts of God, the public enemy, fires, floods or strikes, or as a result of delays caused by PCS
PrimeCo, L.P. or the City) or otherwise violates any of the provisions of this Agreement or if
Omnicom is placed either in voluntary or involuntary bankruptcy, becomes insolvent, changes its
majority ownership, or makes an assignment for the benefit of creditors. In the event of a default
by Omnicom, City can pursue all available legal and equitable remedies.
6. ATTORNEYS' FEES AND COSTS.
In the event of any arbitration and/or litigation arising out of this Agreement,
the losing party shall pay the prevailing party's reasonable attomeys' fees and costs, including at the
trial court and all appellate levels.
7. NO ASSIGNMENT.
Omnicom shall not assign, transfer or sub-contract this Agreement, any
portion of this Agreement or any work under this Agreement without the prior written consent of the
City.
8. EXCLUSIVE ARBITRATION AND/OR LITIGATION VENUE.
The exclusive venue for any arbitration and/or litigation between the parties,
arising out of or in connection with this Agreement, shall be Dade County, Florida.
9. ENTIRE AGREEMENT.
This document embodies the entire Agreement and understanding between
the parties hereto, and there are no other agreements or understandings, oral or written, with
reference to the subject matter hereof, that are not merged herein and superseded hereby.
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10. NO MODIFICATION.
No change in the terms of this Agreement shall be valid unless made in
writing and signed by both parties hereto,
II. GOVERNING LAW.
This Agreement shall be govemed by and construed in accordance with the
laws of the State of Florida, without reference to principles of conflict of laws.
12. LIMITATION OF 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 the City's liability for any such breach never exceeds
the sum of $10,000. Accordingly, and notwithstanding any other term or condition of this
Agreement, Omnicom and the City hereby agree that the City shall not be liable to Omnicom for
damages in an amount in excess of $10,000, which amount shall be reduced by the amount actually
paid by the City to Omnicom pursuant to this Agreement, 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 Agreement is in any way intended to be a waiver of
the limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28.
13. INDEPENDENT CONTRACTOR.
With regard to this Agreement, Omnicom is an independent contractor to and
not an agent of the City.
14. HEADINGS.
The headings in this Agreement are only for convenience, are not a substantive
part of this Agreement and shall not affect the meaning of any provision of this Agreement.
15. NOTICES.
All notices or written communications under the terms of this Agreement shall
be sent to the following:
To Omnicom:
Gene Buzzi, President
Omnicom, Inc.
930 Thomasville Road
Suite 200
Tallahassee, Florida 32303
3
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To the City:
City Manager
City of Miami Beach
1700 Convention Center Drive, 4th Floor
Miami Beach, Fl 33139
With a copy to:
City Attomey
City of Miami Beach
1700 Convention Center Drive, 4th Floor
Miami Beach, Fl 33139
17. INSURANCE.
Omnicom will maintain in full force and effect, from the date of this
Agreement until 2 years after the termination of this Agreement, professional liability insurance in
the amount of ONE MIlLION DOLLARS ($1,000,000.00), covering any claims that might arise in
connection with this Agreement. An original certificate of insurance (the "Certificate"), evidencing
such insurance coverage, is attached hereto and incorporated herein as Exhibit "C". Omnicom will
notify the City immediately of any cancellation, nonrenewal or material change in the insurance
coverage listed in the Certificate. This paragraph 17 "htsurance" will survive the termination of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their appropriate officials.
CITY OF MIAMI BEACH, FLORIDA
ATTEST:
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By:
By:
Robert Parcher, City Clerk
Date: ~J I 3", 19fjrp
Date:
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FORM APPROVED
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OMNICOM, INC., a Florida corporation
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By:
LAWRENCE R. DANELLO
Print Name
Date:
03-28-96
Date:
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GENE A. BUZZI
Print Name
PRESIDENT
Title
03-28-96
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SERVICES
1. Evaluate the digital microwave system, which was proposed by PCS PrimeCo, L.P. ("PCS ")
for replacement of the existing 5 hop (6 site) 2 GHz analog microwave system in Miami
Beach, Florida (the "System"), as well as related matters, such as the System performance
test procedures, and advise the City of Miami Beach, Florida (the "City") with regard to the
results of such evaluation.
2. Provide a written report and written recommendations to the City regarding the evaluation
of the System, including, but not limited to, advising the City whether the System meets the
City's current operational requirements in all aspects, advising whether any changes should
be made to the System, and commenting on the System's reliability and growth potential.
3. Perform a walkthrough of the System, as installed by PCS, prior to witnessing and reviewing
the System performance test results.
4. Witness and review the System performance test results and advise and make appropriate
recommendations to the City as to those results.
5. Be physically present during the "cut-over" from the old analog system to the System, as
requested by the City.
6. Advise the City, as requested by the City, on Motorola SmartNet functional test results.
7. Review and advise the City regarding final completed data and as-built drawings regarding
the System.
EXHmIT "A"
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HOURLY RATES
Project Manager
Principal Project Engineer
Senior Engineer
Commercial Engineer
$102.28
$ 97.93
$ 93.58
$ 87.05
EXHffirr "B"
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PROOU20R(904)386=2143.' . ........ ...FA)((904)386=8626.... .
and rum - Yaeger & Associates, Inc.
P.O. Box 14099
3375-B Capital Circle N.E.
Tallahassee, FL 32317
Attn: MARIA MUELLER
INSURED
EXHIBIT "C"
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......DATE'.iMM'foDNY)",...
03/27 /1996
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HQLDER. THIS CERTIFICATE DQES NOT AMEND, EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
COMPANIES AFFORDING COVERAGE
Gulf Ins. Co.
Ext:
COMPANY
A
Omnicom, Inc.
930 Thomasvill e
Suite 200
Tallahassee, FL
COMPANY
B
Rd.
COMPANY
C
32303
COMPANY
D
INDICATED, NOlWlTHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
CO
LTR
TYPE OF INSURANCE
POLICY NUMBER
POLICY EFFECTIVE POLICY EXPIRATION
DATE (MM/ODIYYI DATE (MM/DDIYV)
LIMITS
GENERAL LIABILITY
COMMERCIAL GENERAL LlAB1L.ITY
CLAIMS MADE OCCUR
OW'NER'S & CONTRACTOR'S PROT
GENERAL AGGREGATE
EACH OCCURRENCE
.
PRODUCTS - COMP/OP AGG S
.
.
.
.
PERSONAL & ADV INJURY
FIRE DAMAGE (Anyone fire)
MED EXP (Anyone person)
AUTOMOBILE LIABILITY
ANY AUTO
ALL OW'NED AUTOS
SCHEDULED AUTOS
HIRED AUTOS
NON-OW'NED AUTOS
COMBINED SINGLE LIMIT
.
BOOIL Y INJURY
(Per person)
$
BODILY INJURY
(Per accident)
$
PROPERlY DAMAGE $
GARAGE LIABILITY
ANY AUTO
AUTO ONLY - EA ACCIDENT $
OTHER THAN AUTO ONLY'
EACH
EXCESS LIABILITY
UMBRELLA FORM
OTHER THAN UMBRelLA FORM
WORKERS COMPENSATION AND
EMPLOYERS' LIABILITY
EACH OCCURRENCE
AGGREGATE
GU6109559
TORY L.IMITS :
EL EACH ACCIDENT $
EL DISEAS~ . POLICY LIMIT $
El DISEAS~ - EA EMPLOYEE $
THE PROPRIETOR! INCL
PARTNERS/EXECUTIVE
OFFICERS ARE: EXCL
OTHER
SPECIALTY ERRORS &
A OMMISSIONS
$1,000,000. LIMIT
02/27/1996 02/27/1997 CLAIMSMADE FORM
$10,000 DEDUCTI8LE
DESCRIPTION F OPERATIONS/LOCA ONSNEHICLESlSPECIALITEMS
ALEXANDER I TACHMES
CITY ATTORN EY
CITY OF MIAMI BEACH
1700 CONVENTION CENTER DRIVE
4TH FLOOR
MIAMI, FL 33139
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAil
--1{L.. DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,
BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY
OF ANY KINO UPON THE COMPANY,ITS AGENTS OR REPRESENTATIVES.
A THORIZED REPRESENTATIVE