Public Buyer Agreement Public Purchase
Public Buyer Agreement
For
The Expansion of the City's E- Procurement System of Solicitation
Announcements and Document Fulfillment Services,
Pursuant to
Request for Proposal RFP #19 -11/10
This Agreement is entered into this 20 4 4 N day of August, 2012, 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 THE PUBLIC GROUP, LLC (TGP), whose address is 1503 S 40 E, Suite 350 Provo, Utah
84606(Consultant).
The Public Group, LLC, a Utah limited liability company that sometimes does business as "Public
Purchase" ( "Public Purchase ", "We" "Us "), provides online bid boards, online auctions, and other
online methods of procuring goods and services on www_publicpurchase.com and other websites
(collectively, the "Site ") for governmental bodies and others ( "You ") to buy goods and services from
vendors of all types ( "Vendors "). As a condition to accessing and using the Site and receiving the
benefit of Public Purchase's services provided through the Site and otherwise (the "Services "), Public
Purchase requires that You review and accept this Public Buyer Agreement (this "Agreement ").
BY REGISTERING TO USE THE SITE AND THE SERVICES, YOU ACCEPT AND AGREE TO
THE TERMS AND CONDITIONS OF THIS AGREEMENT WITH PUBLIC PURCHASE. IF YOU
DO NOT AGREE TO ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS THE SITE OR
OTHERWISE USE THE SERVICES OR THE SITE. YOU AGREE THAT YOU HAVE RECEIVED
GOOD AND VALUABLE CONSIDERATION IN EXCHANGE FOR ENTERING INTO THIS
AGREEMENT,
1. ACCESSING OUR SITE AND USING OUR SERVICES
1.1. Eligibility. You may only use our Services if You are at least 18 years of age, are mentally
competent, and can form legally binding contracts under applicable law. You may not assign or
transfer Your account or user identification to any other party.
1.2. Your Affirmations in Connection with Purchases. In using our Site and Services, You agree as
follows:
(a) You will be financially responsible for concluding a transaction and making payinent with
respect to any proposal accepted using Your username and password.
(b) You are a real person or entity, with a verifiable address, telephone number and email
address as provided to Us.
(c) You are dealing in good faith and are not attempting to defraud, .cheat, or wrong Public
Purchase or any Vendor.
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(d) You are fully capable of paying for goods and services for which You request proposals.
1.3. Accuracy and Nature of Your Information. You are solely responsible for all information You
provide to Us, Vendors, or other users on our Site ( "Your Information"), We act as a passive conduit
for the online distribution and publication of Your Information. You agree that to the best of Your
information, knowledge and belief and using reasonable commercial efforts, Your Information (i) will
not be false, inaccurate, or misleading; and (ii) will not violate any law, statute, ordinance or regulation.
In providing Your Information, You grant to Us a non - exclusive, worldwide, perpetual, irrevocable,
royalty -free right to use and exercise the copyright, publicity, and database rights You own and have in
Your Information for the sole and exclusive purposes of facilitating the communications and
transactions made through our Site.
1.4. Fees. Public Purchase charges no fees for You to register to request proposals through the Site.
However, Public Purchase may charge for other Services as shown on the Site. Our fees may change
from time to time. You are responsible for paying all fees and any applicable taxes associated with
transactions effected through the Site in a timely .manner and with a valid payment method.
Notwithstanding the foregoing, We acknowledge that You are a municipal corporation organized under
the laws of the State of Florida, and may therefore be exempt from the payment of State taxes for
transactions effected under this Agreement. If Your payment method fails or Your account is past due,
We may collect fees owed using other collection mechanisms.
1.5. No Disruption to Our Site or Services. You agree not to attempt any action that may disrupt our
Site or our Services. Among other things, You agree that to the best of Your information, knowledge
and belief and using reasonable commercial efforts, (i) Your Information and all other input on our Site
will not contain any viruses, Trojan horses, worms, time bombs, cancelbots, caster eggs or other .
software, devices, files or routines that may damage, interfere with, copy, reproduce, intercept or
expropriate any system, data or personal information; (ii) You will not create liability for Us or cause
Us to lose (in whole or in part) the services of our Internet Service Providers or other vendors; (iii) You
will not use our Site to obtain e -mail addresses for bulk e -mail solicitations or otherwise; (iv) You will
not reverse engineer any of our Services, programs, or infrastructure; (v) You will not use any robot,
spider, other automatic device, or manual process to monitor, copy or reproduce our web pages or the
content contained herein without our prior express written permission; and (vi) You will not take any
action that imposes an unreasonable or disproportionately large load on our infrastructure.
1.6. User Password. During the registration process, You will select a username and a password. You
agree that You are solely responsible for preserving the confidentiality of Your username and Your
password and You will be responsible for all activities and charges related to the use of Your username
and password, including unauthorized use. You agree not to furnish Your username, password or other
information to any other party for use of the Site and the Services. You agree to notify Public Purchase
immediately of any unauthorized use of Your personal password or username and any other breach of
security regarding the Services.
1.7. Obligation to Ensure Compliance with this Agreement. You agree that You will use reasonable
commercial efforts to ensure that Your employees, contractors, and agents comply with the covenants,
terms and provisions of this Agreement, including but not limited to the covenants contained in sections
1.5 and 6.8 of this Agreement.
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1.8. Consent to E -Mail Correspondence from Public Purchase. You hereby agree that We may send
fixture correspondence to You via electronic mail ( "e- mail ") that notifies You of bids or proposals or
other matters that We believe may interest You. Any e -mail correspondence to You (i) will be clearly
and conspicuously identified as sent by Public Purchase; and (ii) will clearly and conspicuously display
a functioning return e -mail address to enable You to reply to Public Purchase.
1.9. Electronic Signature. Prospective bidders are notified by this statement that Your consent to these
terms and conditions by checking the box indicating Your agreement to be bound to these terms, meets
the requirements of Section 101(c) (1) (C) (ii), the Consumer Consent Provision, of the Electronic
Signatures in Global and National Commerce Act (ESIGN). You may print these terms and conditions,
but they are subject to change by Us. Changes to the terns and conditions will be effective from the
time they are placed on our Site, in the terms and conditions section of the Site, or any other section
where they may appear.
2. UNDERSTANDINGS AND OBLIGATIONS
In requesting proposals on our Site or otherwise accessing our Site and Services in any way, You
represent, warrant and agree to the following:
2.1. Payment. At the close of a transaction in which You accept a proposal for delivery of goods or
services from a Vendor, You agree to make payment for the goods and services in accordance with the
terms specified in Your request for proposals.
2.2. Failure to Complete Transaction. If You accept a proposal and fail to complete the transaction, You
agree that Vendor or Pubic Purchase may in their sole discretion enforce any and all of the following
remedies:
(a) You may be required through specific performance to complete the transaction and /or You
may be sued for damages;
(b) Your access to our Site and Services maybe suspended or terminated; and /or
(c) the Vendor may sell or otherwise dispose of the goods or services offered and charge all
losses and expenses incidental thereto to You.
2.3. Legal Compliance. You will comply with all applicable laws, statutes, ordinances and regulations
regarding Your use of our Site and Services and the request for proposals. Soliciting proposals or
accepting a proposal on a good or service with the intent not to complete the transaction or causing
disruption to the process in any way and not completing the transactions will be considered in most
jurisdictions as fraud and may be prosecuted to the fullest extent of the law.
3. LIABILITY LIMITATIONS AND RELEASES
3.1. Absence of Liability. You will not hold Public Purchase responsible for actions or inactions of
Vendors or other users, including the quality or condition of the information posted or goods or services
provided. You acknowledge that We are not the Vendor of goods and services sold through our Site.
Instead, the Site provides a marketplace for users to request, offer, sell, and buy items of all kinds in a
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variety of pricing formats and venues. We are not involved in the actual transaction between You and
Vendors. We have no control over and do not guarantee such things as the accuracy or completeness of
the proposals to provide goods and services, the ability of Vendors to provide goods or services, or the
actual completion of a transaction with You, even upon Your acceptance of an offer or proposal by a
Vendor. Without limitation of the generality of the foregoing, We will not be liable for lost profits or
any special, incidental or consequential damages arising out of or in connection with Site, our Services,
or this Agreement.
3.2. Disclaimer of Warranties. THE SITE AND SERVICES, INCLUDING ALL CONTENT,
FUNCTIONS, MATERIALS AND INFORMATION ON OR ACCESSED THROUGH THE SITE OR
SERVICES, ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. PUBLIC PURCHASE
DISCLAIMS ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABI.LITY, FITNESS FOR
A PARTICULAR PURPOSE, NON - INFRINGEMENT, DATA ACCURACY, SYSTEM
INTEGRATION, OR QUIET ENJOYMENT. PUBLIC PURCHASE DOES NOT WARRANT THAT
THE SERVICES, FUNCTIONS, FEATURES OR CONTENT WILL BE FUNCTIONAL, TIMELY,
SECURE, UNINTERRUPTED OR ERROR -FREE, OR THAT ANY DEFECTS WILL BE
CORRECTED. PUBLIC - PURCHASE MAKES NO WARRAN'T'Y THAT THE OFFERS OR
PROPOSALS IN RESPONSE TO YOUR SOLICITATIONS, THE SITE OR THE SERVICES WILL
MEET YOUR REQUIREMENTS OR EXPECTATIONS. PUBLIC PURCHASE EXPRESSLY
DISCLAIMS ANY WARRANTIES OR GUARANTEES THAF ANY PARTICULAR OFFERS OR
PROPOSALS WILL BE ADEQUATE FOR YOUR NEEDS OR EVEN CONSUMMATED, EVEN
THOUGH YOU ACCEPTED AN OFFER OR PROPOSAL FROM A VENDOR. PUBLIC
PURCHASE MAKES NO WARRANTY OF ANY KIND REGARDING ANY GOODS OR
SERVICES PURCHASED OR OBTAINED THROUGH THE SITE OR THE SERVICES OR ANY
TRANSACTIONS ENTERED INTO THROUGH THE SERVICES. PUBLIC PURCHASE
EXPRESSLY DISCLAIMS ANY ENDORSEMENT OR WARRANTY OF ANY OFFERS OR
PROPOSALS MADE ON OR THROUGH THE SITE OR THE SERVICES, AND ANY
RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANY
VENDOR OR OTHER USER.
3.3. Interruption of Service. Public Purchase is not responsible for any damages or losses related to any
system errors or interruptions affecting its Site and the processing of any solicitations, requests, offers,
bids, auctions, or sales. You understand and acknowledge that the Site and our Services may be
unavailable unexpectedly.
3.4. Third Party Links. The Site may contain links to other websites or resources for Your convenience
in locating related information and services. You acknowledge and agree that Public Purchase is not
responsible or liable for (i) the availability or accuracy of such sites or resources, or (ii) the content,
advertising or products on or available from such sites or resources. The inclusion of any link on the
Site does not imply that Public Purchase endorses the linked site. You use the links at Your own risk. !
3.5. Release. If You have a dispute with a Vendor or any other user of our Site, You release Us (and our
officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and
damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in
any way connected with such disputes. You will settle all disputes with other users of our Site without
our involvement, and We will have no liability whatsoever arising from communications made or
transactions effected through our Site. E
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4. PRIVACY
We do not sell or rent Your personal information to third parties for their marketing purposes without
Your explicit consent. We use Your information only as described in Public Purchase's Privacy Policy.
We view protection of Your privacy as a very important community principle. We store and process
Your information on computers located in the United States that are protected by physical as well as
technological security devices. You can access and modify the information You provide Us. For a
complete description of how We use and protect Your personal information, see Public Purchase's
Privacy Policy. If You object to Your Information being transferred or used in this way please do not
use our services.
5. TERMINATION OR SUSPENSION
Public Purchase reserves the right to suspend or terminate Your access to our Site and Services for any
reason or no reason and without notice. Among other reasons, We may suspend or terminate Your
access to our Services if You breach any of the provisions of this Agreement.
6. MISCELLANEOUS
6.1. Changes to Site and Services. Public Purchase reserves the right, in its sole discretion, to modify,
suspend or terminate any aspect of our Site and Services, including, but not limited to, content, auction
features, news and information, and product categories without notice.
6.2. Record Keeping. Public Purchase will use reasonable commercial efforts to retain records of
transaction's involving You for seven years after termination of this Agreement. However, Public
Purchase cannot guarantee the preservation or maintenance of the records and encourages You to keep
individual records and an accounting of all activity conducted through our Site.
6.3. Notice and Communication. Unless stated otherwise, all notice and communication with You will
be provided by e -mail to the e -mail address provided by You in the registration application or via
posting on the Site. Notice will be deemed to have been provided 24 hours after the e -mail was
transmitted by Public Purchase or the information was posted on the Site.
6.4. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance
with the laws of the State of Florida. Any right to trial by jury with respect to any claim, action, suit or
proceeding arising out of this Agreement or any of the matters contemplated hereby is waived. You
filrther agree to the exercise of personal jurisdiction in the Miami -Dade County, State of Florida in
connection with any dispute or claim involving Public Purchase.
6.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, then such provision will be enforced to the maximum extent permissible and
the remainder of this Agreement will continue in full force and effect.
6.6. Waiver. Your failure or our failure to exercise or enforce any right or provision of this Agreement
will not be deemed a waiver of such right or provision in the future.
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6.7. Independent Contractor Relationship. The relationship between You and Public Purchase is that of
an independent contractor. No agency, partnership, joint venture or franchise relationship is implied,
intended or created by this Agreement.
6.8. Intellectual Property. All inventions, know how, improvements, discoveries, methods, processes,
concepts, designs, ideas, prototypes, samples, drawings, blueprints, specifications, computer or
intellectual property programs, methods of doing business, systems, copyrights, trademarks, trade
names, software and /or other works conceived of and /or reduced to practice or writing or otherwise
relating in any way to the Site or the Services are the exclusive intellectual property of Public Purchase
(the "Public Purchase IP "). In addition, all content contained on the Site is Public Purchase IP that is
copyrighted material, and Public Purchase retains and reserves all rights and interests in the content.
Public Purchase IP may be created by one of more of Public Purchase's employee(s) alone or jointly
with a user or users of the Site or Services arising from the users' use and development of the Services
or as a result of feedback regarding the Site or Services ( "Feedback "). All right, title and interest in
any Public Purchase IP will belong to Public Purchase and will be subject to the conditions of this
Agreement. You hereby irrevocably assign to Public Purchase all right, title and interest You may
acquire in any Public Purchase IP, whether or not generated from Feedback. Public Purchase may, at
its option, file an application for intellectual property protection for Public Purchase IP. If any such
Public Purchase IP is created with Your participation or Feedback, You agree to cooperate with Public
Purchase to assure that such application(s) will cover, to the best of Your knowledge, all related assets,
including all features of commercial interest and importance. Public Purchase IP is the sole and
exclusive property of Public Purchase and may not be used, copied, reproduced, modified, published,
transmitted, distributed, displayed, or sold or derivative works created without the prior written consent
of Public Purchase. Furthermore, You may not provide access to, or information from, the Site to any
other party without Public Purchase's prior written consent.
6.9. Trademarks. The Site and Public Purchase's tradenames, domain names and logos found on the
Site are trademarks or service marks of Public Purchase. No display or use of such marks may be made
without the express written permission of Public Purchase.
6.10. Assignment. This Agreement may not be assigned by Public Purchase or by You or by operation
of law to any other person, persons, firms or corporations without the express written approval of the
non - assigning party.
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6.11. Entire Agreement. This Agreement constitutes the entire agreement between You and Public
Purchase, and supersedes any previous agreements, whether oral or in writing, between You and Public
Purchase relating to the subject matter hereof. Public Purchase may, at its sole discretion, remove or
change any aspect of this Agreement at any time by providing notice to You.
6.12. Survival. The warranties, covenants and representations of the parties to this Agreement will
survive termination of this Agreement.
6.13. Headings. Headings are for reference purposes only and in no way affect the interpretation of this
Agreement.
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6.14. Oral Statements by Representatives. Any oral statement or representation by any representative
of Public Purchase changing or supplementing this Agreement or any terms of bidding or purchase on
the Site, is unauthorized and ineffective and confers no right on You and may not be relied upon by
You. No interpretation or purported amendment or change of any provision of this Agreement,
including applicable performance requirements, is binding on Public Purchase unless agreed to, in
writing, by Public Purchase.
7. SERVICES
The Public Group shall provide the work and services described in their proposals and incorporate the
deliverables in this Exhibit "A" hereto (Services and deliverables).
7.1 Public Purchase: Public Purchase enable agencies to post, manage, and award solicitations
including RFPs, RFQs, Reverse Auctions, Quick Quotes, Line Item Quotes, and agency - defined
solicitations. Services include bid notifications, line item upload, automatic bid tabulation, award
publishing, document and form libraries, plan holders lists, contractors lists and bid bonds, to name a
few.
7.2 Public Vendor: An integrated component of Public Purchase which enables public
agencies to manage information and tasks related to their vendors. Services include vendor self -
registration, robust search capabilities, task management, internal notes, and document and form
management to name a few.
7.3 Public Contract: A separate application which enables public agencies to manage
information and tasks related to their contracts. Services include expenditure tracking, automated task
notification, automated renewal or re -bid notification, internal notes, public access links, and document
and form management to name a few.
7.3 Public Surplus: A separate application which enables public agencies to dispose of assets
through internal reallocation or public auction via the online auction marketplace at
www.publiesurplus.com. Public Surplus provides access to the largest buyer database in the nation to
public agencies seeking to increase the revenue they earn for surplus items. Features include bid
deposits, automatic auction extension, 7 -year audit trail, asset tracking, specialty buyer databases, and
integrated marketing through buyer interest lists.
S. TERM
The term of this Agreement (Term) shall commence upon execution of this Agreement by all parties
hereto, and shall have an initial term of three (3) years, with two (2) two -,year renewal options, to be
exercised at the City Manager's sole option and discretion, by providing Consultant with written notice
of same no less than thirty (30) days prior to the expiration of the initial term.
Notwithstanding the Term provided herein, Consultant shall adhere to any specific timelines,
schedules, dates, and /or performance milestones for completion and delivery of the Services, as same
is /are set forth in the timeline and /or schedule referenced in this Agreement.
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9. FEES
9.1 There is NO CHARGE for the City of Miami Beach to utilize Public Purchase and Public
Vendor.
9.2 In the event that the City elects to charge for vendor registration, The Public Group will receive
50% of the annual registration fee made by each vendor
9.3 In the event that the City elects to charge vendors for downloading construction plans,
specifications, minutes of the meetings, or any other documentation, The Public Group will receive
50% of each transaction.
9.4 The Public Group shall receive 7% of the Buyer's Premium Charged to Buyers for each item
purchase via Public Surplus. The City will not be charged for advertising fees, marketing fees, set -up
fees, training fees, or upgrade fees.
9.5 The City of Miami Beach will collect all payments. The Public Group will invoice the City of
Miami Beach monthly. The Public Group system must be PCI compliant and provide the following
items:
I . Cover Page from their last PCI scan
2. SAQC form
If The Public Group becomes non PCI compliant during the life term of this contract, the City will have
to be notified immediately of such event.
9.6 If the City will elect to utilize the Public Contract module, the City will be charged per user, as
follows:
Full Access User $ 100.00
View Only User $ 25.00
9.7 Cooperative Purchasing:
Other entities within the State of Florida may elect to utilize this contract through a cooperative
purchasing arrangement; provided such an arrangement is acceptable to the City, the entity, and The
Public Group and is in compliance with all applicable laws and ordinances. If the Contract is accessed
and utilized by other entities, the Public Group agrees to promptly pay the City a one percent (1 %)
administrative fee. The fees shall be due and payable within fifteen (15) days from the date that the
Contractor receives payment from any other entity ordering work by accessing the Contract. Fees not
paid by the specified deadline shall bear an interest rate of one and one -half (1' /z %) per month until
paid. The Public Group and entity should track fees, and payments. The Public Group shall include in
its price proposals to any other entity ordering work by accessing the Contract, the fees as a
miscellaneous reimbursable expense. The entity shall have no claim or right to any portion of the fees.
Failure to pay fees in a timely manner shall be considered a material breach of this Contract and, at the
City's sole discretion, may be deemed grounds for termination of this Contract.
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9.7.1. The City has no obligation to administer work by other entities. The Public Group shall inform
the City of any cooperative purchasing arrangements with other entities.
9.7.2. The City authorizes the Public Group's of Proprietary Information in the presentation and
promotion of the availability and use of this contract to other entities. The other entity authorizes the
City and The Public Group's use of the entity's name, trademarks and provided materials in the
presentation and promotion regarding the availability and use of the Contract by other entities.
9.7.3. The City shall not be liable or responsible to any obligation, including, but not limited to,
payment related to any other entity ordering work by accessing the Contract.
9.7.4. Remittance of Fees: The Public Group shall remit the Fees to the following address:
Payments must be made payable to The City of Miami Beach and sent to:
Finance Department — Revenue Division
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
9.7.5, The City may request records from The Public Group for all cooperative purchasing conducted
with other entities through use of this Contract and payment of all fees. If discrepancies exist between
cooperative purchasing activity and fees paid, the City will provide written notification to The Public
Group of discrepancies and allow The Public Group thirty (30) Days from the date of notification to
resolve the discrepancy. In the event that The Public Group does not resolve the discrepancy to the
satisfaction of the City, the City reserves the right to engage a third party to conduct an independent
audit of The Public Group and entity's records, and The Public Group shall reimburse the City for the
cost and expense related to such audits.
10. DELIVERABLES
10.1. The Public Group will incorporate all City's forms, documents, templates, and processes into
the Public Group Public Purchase, Public Vendor, and Public Surplus system without incurring in any
costs.
10.2 The Public Group will provide one (1) on -site training session and unlimited on -line training
sessions on any of the system modules throughout the life of the contracts.
10.3 The Public Group will be responsible for contacting and registering the vendors being provided
by the City.
10.4 The Public Group will provide any available updates at no cost to the City throughout the life of
the contract.
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10.5 All data (documents, vendor list, form ... etc) incorporated into The Public Group system for the
duration of this contract will be the City's property.
10.6 The Public Group must provide monthly reports of transactions made in the system within said
month. Reports of monthly transactions must be submitted via mail or e -mail as follows:
For Surplus:
City of Miami Beach
Attn: Tracy Ilejl, Fixed Assets, Finance Department
1700 Convention Center Drive - Third Floor
Miami Beach, Florida 33.139
305- 673 -7000 Ext# 6922
tracyhe.il(&,miamibeachfl.gov
For Public Contract:
City of Miami Beach
Attn: Scott Wagner, Finance Department
1700 Convention Center Drive — Third Floor
Miami Beach, Florida 33139
305- 673 -7000 Ext# 6202
bryanwayner &miamibeachfl.gov
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For Public Purchase and Public Vendor:
City of Miami Beach
Attn: Maria Estevez, Procurement Division
1700 Convention Center Drive — Third Floor
Miami Beach, Florida 33139
305- 673 -7000 Ext# 6558
mestevez &miamibeachfl.gov
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
appropriate officials, as of the date first entered above,
FOR CITY: CITY OF MIAMI BEACH, FLORIDA
ATTEST:
BY:
City Clerk Jorge R. Exposit
...........
.0 Vice-Mayor
.,INCORP ORATED:
FOR CONSULTANT:
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2 THE PUBLIC GROUP LLC (TPG)
ATTEST:
Secretary < President
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