2017-29988 ResolutionRESOLUTION NO. 2017 -29988
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING THE FINAL NEGOTIATED
AGREEMENTS BETWEEN THE CITY AND CBRE, INC. AND THE KONIVER
STERN GROUP, RESPECTIVELY, PURSUANT TO REQUEST FOR
QUALIFICATIONS NO. 2016- 152 -WG (THE RFQ) FOR REAL ESTATE
BROKERAGE SERVICES; AND AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE THE AGREEMENTS BETWEEN THE CITY AND CRBE,
INC. AND KONIVER STERN GROUP, RESPECTIVELY, IN THE FORM
ATTACHED TO THE COMMISSION MEMORANDUM ACCOMPANYING THIS
RESOLUTION.
WHEREAS, on July 13, 2016, the Mayor and City Commission approved the issuance of
2016- 152 -WG, for Real Estate Brokerage Services; and
WHEREAS, on August 30, 2016 the City received a total of two (2) proposals, from
CBRE, Inc., and The Koniver Stern Group, Inc.; and
WHEREAS, on March 1, 2017, the Mayor and City Commission approved Resolution
No. 2017 - 29785, accepting the recommendation of the City Manager pertaining to the ranking
of proposals, pursuant to Request for Qualifications No. 2016- 152 -WG (the RFQ), for Real
Estate Brokerage Services; authorizing the Administration to enter into negotiations with each of
the proposers, and providing that the final negotiated agreement shall be subject to the advance
approval of the Mayor and City Commission;
WHEREAS, the Administration has completed its negotiations, and recommends
approval of the final agreements attached as an exhibit to the Commission Memorandum
accompanying this Resolution; and
WHEREAS, the Agreements will permit the City to use each of the firms to provide
customary real estate services to the City for City -owned facilities, including procuring tenants
and assisting in negotiating leases for available various types of properties, such as office, retail
and restaurant facilities; developing and implementing marketing /advertising and leasing plans;
providing comparative marketing analysis; consulting on the marketability of future City
developments; lease analysis and due diligence regarding tenants, and other activities involving
prospective tenants.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby approve the final negotiated agreements between the City and CBRE, Inc.
and The Koniver Stern Group, respectively, pursuant to Request for Qualifications No. 2016 -
152 -WG (the RFQ) for Real Estate Brokerage Services; and authorize the Mayor And City Clerk
to execute the agreements between the City and CBRE, Inc. and Koniver Stern Group,
respectively, in the form attached to the Commission Memorandum accompanying this
Resolution.
PASSED AND ADOPTED this o?S- day of 5eP"6 "'x"2017.
ATTEST:
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APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
Qie I ri
C i y Attorney 11 t p Date
MAM
BEACH
Resolutions - C7 N
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: September 13, 2017
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING THE FINAL NEGOTIATED AGREEMENTS
BETWEEN THE CITY AND CBRE, INC. AND THE KONIVER STERN GROUP,
RESPECTIVELY, PURSUANT TO REQUEST FOR QUALIFICATIONS NO. 2016 -
152-WG (THE "RFQ ") FOR REAL ESTATE BROKERAGE SERVICES; AND
AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE
AGREEMENTS BETWEEN THE CITY AND CRBE, INC. AND KONIVER STERN
GROUP, RESPECTIVELY, IN THE FORM ATTACHED TO THE COMMISSION
MEMORANDUM ACCOMPANYING THIS RESOLUTION.
RECOMMENDATION
Approve the Resolution.
ANALYSIS
On July 13, 2016, the Mayor and City Commission approved the issuance of 2016- 152 -WG, for Real
Estate Brokerage Services. On August 30, 2016 the City received a total of two (2) proposals, one
from CBRE, Inc., and the other from The Koniver Stern Group, Inc.
On March 1, 2017, the Mayor and City Commission approved Resolution 2017 -29785 accepting the
recommendation of the City Manager pertaining to the ranking of proposals, pursuant to Request for
Qualifications No. 2016- 152 -WG (the RFQ), for Real Estate Brokerage Services, authorizing the
Administration to enter into negotiations with both proposers; CBRE, Inc and The Koniver Stern
Group, Inc.; and further requiring the administration to present the final agreement to the Mayor and
City Commission for approval prior to execution.
As directed by the City Commission, negotiations have been ongoing with the CBRE, Inc. and The
Koniver Stern Group, Inc. Said negotiations resulted in the awarded firms providing customary real
estate services to the City for City -owned facilities such as; procuring tenants and assisting in
negotiating leases for available various types of properties, such as office, retail and restaurant
facilities; developing and implementing marketing /advertising and leasing plans; providing
comparative marketing analysis; consulting on the marketability of future City developments; lease
analysis and due diligence regarding tenant; and sample standard reports, also with the reporting
period of marketing, advertising, and other activities involving prospective tenants for the landlords.
The Commission shall be four percent (4 %) of the Base Rent, payable to the Consultant in two
payments, fifty percent (50%) upon lease execution and fifty percent (50 %) upon occupancy of the
Page 495 of 2353
premises by tenant and rent commencement. In the event tenant is represented by a broker,
Consultant shall be paid three percent (3 %) of the Base Rent, and tenant's broker shall be paid three
percent (3 %) of the Base Rent.
Therefore, after considering the results of the rankings pursuant to the RFQ, as well as subsequent
negotiations agreed to by CBRE, Inc. and The Koniver Stern Group, Inc., I recommend that the City
Commission approve the Resolution authorizing the Administration and the City Attorney's to finalize
the Agreements with each of the proposers, CBRE, Inc. and The Koniver Stern Group, Inc., as
negotiated by the Administration; and further authorize the Mayor and City Clerk to execute final
agreements with each.
CONCLUSION
The City Manager recommends that the City Commission approve the Resolution authorizing the
Administration and City Attorney's Office to finalize the agreements with both, CBRE, Inc. and The
Koniver Stern Group, Inc., as negotiated by the Administration; and to further authorize the Mayor
and City Clerk to execute final agreements with each.
KEY INTENDED OUTCOMES SUPPORTED
Ensure Expenditure Trends Are Sustainable Over The Long Term
FINANCIAL INFORMATION
No grant funds will be utilized for this project.
Legislative Tracking
Tourism, Culture and Economic Development/Procurement
ATTACHMENTS:
Description
o Resolution
o CBRE Agreement
o Koniver Stern Group Agreerent
Page 496 of 2353
PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH
AND
CBRE, INC.
FOR
REAL ESTATE BROKERAGE SERVICES, PURSUANT TO
RFQ 2016- 152 -WG
This Professional Services Agreement ( "Agreement ") is entered into this day of
, 20 , 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 CBRE, Inc.,
a corporation, whose corporate address is 400 South Hope Street, 26th Floor, Los Angeles,
California 90071; and whose local address is 777 Brickell Avenue, Miami, Florida 33131
( "Consultant ").
SECTION 1
DEFINITIONS
Agreement: This Agreement between the City and Consultant, including any exhibits
and amendments thereto.
City Manager: The chief administrative officer of the City.
City Manager's
Designee: The City staff member who is designated by the City Manager to
administer this Agreement on behalf of the City. The City Manager's
designee shall be the Tourism, Culture and Economic Development
Department Director.
Consultant:
Services:
Fee:
For the purposes of this Agreement, Consultant shall be deemed to be an
independent contractor, and not an agent or employee of the City.
All services, work and actions by the Consultant performed or undertaken
pursuant to the Agreement.
Amount paid to the Consultant as compensation for Services.
Proposal Documents: Proposal Documents shall mean City of Miami Beach RFQ No. 2016.152 -
WG for REAL ESTATE BROKERAGE SERVICES, together with all
amendments thereto, issued by the City in contemplation of this
Agreement RFQ, and the Consultant's proposal in response thereto
( "Proposal "), all of which are hereby incorporated and made a part hereof;
provided, however, that in the event of an express conflict between the
Proposal Documents and this Agreement, the following order of
precedent shall prevail: this Agreement; the RFQ; and the Proposal.
Risk Manager:
The Risk Manager of the City, with offices at 1700 Convention Center
Drive, Third Floor, Miami Beach, Florida 33139; telephone number (305)
673 -7000, Ext. 6435; and fax number (305) 673 -7023.
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Page 499 of 2353
SECTION 2
SCOPE OF SERVICES
2.1 In consideration of the Fee to be paid to Consultant by the City, Consultant shall provide
the work and services described in Exhibit "A ", sections I and II, hereto (the "Services ").
Although Consultant may be provided with a schedule of the available hours to provide its
services, the City shall not control nor have the right to control the hours of the services
performed by the Consultant; where the services are performed (although the City will provide
Consultant with the appropriate location to perform the services); when the services are
performed, including how many days a week the services are performed; how the services are
performed, or any other aspect of the actual manner and means of accomplishing the services
provided. Notwithstanding the foregoing, all services provided by the Consultant shall be to the
reasonable satisfaction of the City Manager. If there are any questions regarding the services
to be performed,. Consultant should contact the following person:
Tourism, Culture and Economic Development
City of Miami Beach
1755 Meridian Ave., 3rd Floor
Miami Beach, FL 33139
Attn: Mark Milisits, Asset Manager
E -mail MarkMilisitsaa,miamibeachfl.gov
2.2 City may assign work to the Consultant on a project by project or individual lease basis.
Consultant shall only commence any Services, or portions thereof, upon issuance of a written
notice to proceed by the City. The City Manager shall have the delegated authority to accept,
approve, and authorize additional real estate services for up to an amount not -to- exceed
$50,000,00. Any additional real estate services in excess of $50,000 shall be subject to City
Commission approval. Any additional real estate services not executed in accordance herewith
shall be null and void.
2.3 NON - EXCLUSIVITY
This Agreement is non - exclusive. The City reserves the right, at its sole discretion, to
cause for the Services or any portion thereof, for any City facility or proposed lease, to be
performed by any other broker or contractor, or to perform the work with its own employees.
SECTION 3
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), one (1) 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.
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Page 500 of 2353
SECTION 4
FEE / COMMISSION
4.1 Commissions paid to the Consultant for Services within the scope, as stipulated on
Exhibit A, Sections 1 and 11 of this agreement, shall be based on the net aggregate base rent
(not including operating expenses or pass through expenses) of no more than five (5) years of
the initial term of the lease ( "Base Rent ").
4.2 The Commission shall be four percent (4 %) of the Base Rent, payable to the Consultant
in two payments, fifty percent (50 %) upon lease execution and fifty percent (50 %) upon
occupancy of the premises by tenant and rent commencement. In the event tenant is
represented by a broker, Consultant shall be paid three percent (3 %) of the Base Rent, and
tenant's broker shall be paid three percent (3 %) of the Base Rent.
4.3 Other / Additional Real Estate Services may be negotiated, as stated on Exhibit A,
Section III, of this Agreement.
4.4 INVOICING
Upon receipt of an acceptable and approved invoice, payment(s) shall be made within forty -five
(45) days for that portion (or those portions) of the Services satisfactorily rendered (and
referenced in the particular invoice).
Invoices shall include a detailed description of the Services (or portions thereof) provided, the
Purchase Order Number (PO No.), and shall be submitted to the City at the following address:
Accounts Payable Division
Finance Department
City of Miami Beach
1700 Convention Center Drive, 3rd Floor
Miami Beach, FL 33139
SECTION 5
TERMINATION
5.1 TERMINATION FOR CAUSE
If the Consultant shall fail to fulfill in a timely manner, or otherwise violates, any of the
covenants, agreements, or stipulations material to this Agreement, the City, through its City
Manager, shall thereupon have the right to terminate this Agreement for cause. Prior to
exercising its option to terminate for cause, the City shall notify the Consultant of its violation of
the particular term(s) of this Agreement, and shall grant Consultant ten (10) days to cure such
default. If such default remains uncured after ten (10) days, the City may terminate this
Agreement without further notice to Consultant. Upon termination, the City shall be fully
discharged from any and all liabilities, duties, and terms arising out of, or by virtue of, this
Agreement.
Notwithstanding the above, the Consultant shall not be relieved of liability to the City for
damages sustained by the City by any breach of the Agreement by the Consultant. The City, at
its sole option and discretion, shall be entitled to bring any and all legal /equitable actions that it
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Page 501 of 2353
deems to be in its best interest in order to enforce the City's right and remedies against
Consultant. The City shall be entitled to recover all costs of such actions, including reasonable
attorneys' fees.
5.2 TERMINATION FOR CONVENIENCE OF THE CITY
THE CITY MAY ALSO, THROUGH ITS CITY MANAGER, AND FOR ITS CONVENIENCE
AND WITHOUT CAUSE, TERMINATE THE AGREEMENT AT ANY TIME DURING THE TERM
BY GIVING WRITTEN NOTICE TO CONSULTANT OF SUCH TERMINATION; WHICH SHALL
BECOME EFFECTIVE WITHIN THIRTY (30) DAYS FOLLOWING RECEIPT BY THE
CONSULTANT OF SUCH NOTICE. IF THE AGREEMENT IS TERMINATED FOR
CONVENIENCE BY THE CITY, CONSULTANT SHALL BE PAID FOR ANY SERVICES
SATISFACTORILY PERFORMED UP TO THE DATE OF TERMINATION; FOLLOWING
WHICH THE CITY SHALL BE DISCHARGED FROM ANY AND ALL LIABILITIES, DUTIES,
AND TERMS ARISING OUT OF, OR BY VIRTUE OF, THIS AGREEMENT.
5.3 TERMINATION FOR INSOLVENCY
The City also reserves the right to terminate the Agreement in the event the Consultant is
placed either in voluntary or involuntary bankruptcy or makes an assignment for the benefit of
creditors. In such event, the right and obligations for the parties shall be the same as provided
for in Section 5.2.
SECTION 6
INDEMNIFICATION AND INSURANCE REQUIREMENTS
6.1 INDEMNIFICATION
Consultant agrees to indemnify and hold harmless the City of Miami Beach and its officers,
employees, agents, and contractors, from and against any and all actions (whether at law or in
equity), claims, liabilities, losses, and expenses, including, but not limited to, attorneys' fees and
costs, for personal, economic or bodily injury, wrongful death, loss of or damage to property,
which may arise or be alleged to have arisen from the negligent acts, errors, omissions or other
wrongful conduct of the Consultant, its officers, employees, agents, contractors, or any other
person or entity acting under Consultant's control or supervision, in connection with, related to,
or as a result of the Consultant's performance of the Services pursuant to this Agreement. To
that extent, the Consultant shall pay all such claims and losses and shall pay all such costs and
judgments which may issue from any lawsuit arising from such claims and losses, and shall pay
all costs and attorneys' fees expended by the City in the defense of such claims and losses,
including appeals. The Consultant expressly understands and agrees that any insurance
protection required by this Agreement or otherwise provided by the Consultant shall in no way
limit the Consultant's responsibility to indemnify, keep and save harmless and defend the City or
its officers, employees, agents and instrumentalities as herein provided.
The parties agree that one percent (1%) of the total compensation to Consultant for
performance of the Services under this Agreement is the specific consideration from the City to
the Consultant for the Consultant's indemnity agreement. The provisions of this Section 6.1 and
of this indemnification shall survive termination or expiration of this Agreement.
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Page 502 of 2353
6.2 INSURANCE REQUIREMENTS
The Consultant shall maintain and carry in full force during the Term, the following insurance:
A. Worker's Compensation for all employees of the provider as required by Florida Statute
440 and Employer's Liability Insurance in an amount not less than $1,000,000.
B. Commercial General Liability on a comprehensive basis in an amount not less than
$1,000,000 combined single limit per occurrence, for bodily injury and property damage. City of
Miami Beach must be shown as an additional insured with respect to this coverage.
C. Automobile Liability for all owned, non -owned and hired vehicles used in connection with
this agreement, in an amount not less than $1,000,000 combined single limit per occurrence, for
bodily injury and property damage.
D. Professional Liability Insurance in an amount not less than $1,000,000.
The insurance must be furnished by insurance companies authorized to do business in the
State of Florida. All insurance policies must be issued by companies rated no less than "B+" as
to management and not less than "Class VI" as to strength by the latest edition of Best's
Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent.
The Consultant's Risk Management Department shall be responsible for providing written notice
to the City at least thirty (30) days prior to termination, cancellation or reduction in coverage in
any policy. A letter from the Consultant's insurance broker referencing the policy number(s) and
paid status will be provided upon renewal of each policy. The insurance certificates for General
Liability shall include the City as an additional insured and shall contain a waiver of subrogation
endorsement in favor of the City.
Compliance with the foregoing requirements shall not relieve the Consultant of the liabilities and
obligations under this Section or under any other portion of this Agreement.
The Consultant shall not commence any work and or services pursuant to this Agreement until
all insurance required under this Section has been obtained and such insurance has been
approved by the City's Risk Manager.
SECTION 7
LITIGATION JURISDICTIONNENUE /JURY TRIAL WAIVER
This Agreement shall be construed in accordance with the laws of the State of Florida. This
Agreement shall be enforceable in Miami -Dade County, Florida, and if legal action is necessary
by either party with respect to the enforcement of any or all of the terms or conditions herein,
exclusive venue for the enforcement of same shall lie in Miami -Dade County, Florida. By
entering into this Agreement, Consultant and the City expressly waive any rights either party
may have to a trial by jury of any civil litigation related to or arising out of this Agreement.
SECTION 8
LIMITATION OF CITY'S LIABILITY
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The City desires to enter into this Agreement only if in so doing the City can place a limit on the
City's liability for any cause of action, for money damages due to an alleged breach by the City
of this Agreement, so that its liability for any such breach never exceeds the sum of the
compensation /fee to be paid to the Consultant pursuant to this Agreement, Tess any amounts
actually paid by the City as of the date of the alleged breach. Consultant hereby expresses its
willingness to enter into this Agreement with Consultant's recovery from the City for any
damages from any action for breach of contract to be limited to a maximum amount of the
compensation /fee to be paid to the Consultant pursuant to this Agreement, less any amounts
actually paid by the City as of the date of the alleged breach.
Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant
hereby agrees that the City shall not be liable to the Consultant for damages in an amount in
excess of the compensation /fee to be paid to the Consultant pursuant to this Agreement, less
any amounts actually paid by the City as of the date of the alleged breach, for any action or
claim for breach of contract arising out of the performance or non - performance of any
obligations imposed upon the City by this Agreement.
Nothing contained in this section or elsewhere in this Agreement is in any way intended to be a
waiver of the limitation placed upon the City's liability, as set forth in Section 768.28, Florida
Statutes.
SECTION 9
DUTY OF CARE /COMPLIANCE WITH APPLICABLE LAWS /PATENT RIGHTS COPYRIGHT
AND CONFIDENTIAL FINDINGS
9.1 DUTY OF CARE
With respect to the performance of the work and /or service contemplated herein, Consultant
shall exercise that degree of skill, care, efficiency and diligence normally exercised by
reasonable persons and /or recognized professionals with respect to the performance of
comparable work and /or services.
9.2 COMPLIANCE WITH APPLICABLE LAWS
In its performance of the work and /or services, Consultant shall comply with all applicable laws,
ordinances, and regulations of the City, Miami -Dade County, the State of Florida, and the
federal government, as applicable.
9.3 PATENT RIGHTS; COPYRIGHT; CONFIDENTIAL FINDINGS
Any work product arising out of this Agreement, as well as all information specifications,
processes, data and findings, are intended to be the property of the City and shall not otherwise
be made public and /or disseminated by Consultant, without the prior written consent of the City
Manager, excepting any information, records etc. which are required to be disclosed pursuant to
Court Order and /or Florida Public Records Law.
All reports, documents, articles, devices, and /or work produced in whole or in part under this
Agreement are intended to be the sole and exclusive property of the City, and shall not be
subject to any application for copyright or patent by or on behalf of the Consultant or its
employees or sub - consultants, without the prior written consent of the City Manager.
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SECTION 10
GENERAL PROVISIONS
10.1 AUDIT AND INSPECTIONS
Upon reasonable verbal or written notice to Consultant, and at any time during normal
business hours (i,e. 9AM 5PM, Monday through Fridays, excluding nationally recognized
holidays), and as often as the City Manager may, in his /her reasonable discretion and
judgment, deem necessary, there shall be made available to the City Manager, and /or such
representatives as the City Manager may deem to act on the City's behalf, to audit, examine,
and/ or inspect, any and all other documents and /or records relating to all matters covered by
this Agreement. Consultant shall maintain any and all such records at its place of business at
the address set forth in the "Notices" section of this Agreement.
10.2 [INTENTIONALLY DELETETD]
10.3 ASSIGNMENT, TRANSFER OR SUBCONSULTING
Consultant shall not subcontract, assign, or transfer all or any portion of any work and /or
service under this Agreement without the prior written consent of the City Manager, which
consent, if given at all, shall be in the Manager's sole judgment and discretion. Neither this
Agreement, nor any term or provision hereof, or right hereunder, shall be assignable unless as
approved pursuant to this Section, and any attempt to make such assignment (unless
approved) shall be void.
10.4 PUBLIC ENTITY CRIMES
Prior to commencement of the Services, the Consultant shall file a State of Florida Form PUR
7068, Sworn Statement under Section 287.133(3)(a) Florida Statute on Public Entity Crimes
with the City's Procurement Division.
10.5 NON- DISCRIMINATION
In connection with the performance of the Services, the Consultant shall not exclude from
participation in, deny the benefits of, or subject to discrimination anyone on the grounds of
race, color, national origin, sex, age, disability, religion, income or family status.
Additionally, Consultant shall comply fully with the City of Miami Beach Human Rights
Ordinance, codified in Chapter 62 of the City Code, as may be amended from time to time,
prohibiting discrimination in employment, housing, public accommodations, and public
services on account of actual or perceived race, color, national origin, religion, sex,
intersexuality, gender identity, sexual orientation, marital and familial status, age, disability, .
ancestry, height, weight, domestic partner status, labor organization membership, familial
situation, or political affiliation.
10.6 CONFLICT OF INTEREST
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Consultant herein agrees to adhere to and be governed by all applicable Miami -Dade County
Conflict of Interest Ordinances and Ethics provisions, as set forth in the Miami -Dade County
Code, as may be amended from time to time; and by the City of Miami Beach Charter and
Code, as may be amended from time to time; both of which are incorporated by reference as if
fully set forth herein.
Consultant covenants that it presently has no interest and shall not acquire any interest,
directly or indirectly, which could conflict in any manner or degree with the performance of the
Services. Consultant further covenants that in the performance of this Agreement, Consultant
shall not employ any person having any such interest. No member of or delegate to the
Congress of the United States shall be admitted to any share or part of this Agreement or to
any benefits arising therefrom.
10.7 CONSULTANT'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS LAW
(A) Consultant shall comply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time.
(B) The term "public records" shall have the meaning set forth in Section 119.011(12), which
means all documents, papers, letters, maps, books, tapes, photographs, films, sound
recordings, data processing software, or other material, regardless of the physical form,
characteristics, or means of transmission, made or received pursuant to law or
ordinance or in connection with the transaction of official business of the Employer.
(C) Pursuant to Section 119.0701 of the Florida Statutes, if the Consultant meets the
definition of "Contractor" as defined in Section 119.0701(1)(a), the Consultant shall:
(1) Keep and maintain public records required by the City to perform the service;
(2) Upon request from the City's custodian of public records, provide the City with a
copy of the requested records or allow the records to be inspected or copied
within a reasonable time at a cost that does not exceed the cost provided in
Chapter 119, Florida Statutes or as otherwise provided by law;
(3)
Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed, except as authorized
by law, for the duration of the contract term and following completion of the
Agreement if the Consultant does not transfer the records to the City;
(4) Upon completion of the Agreement, transfer, at no cost to the City, all public
records in possession of the Consultant or keep and maintain public records
required by the City to perform the service. If the Consultant transfers all public
records to the City upon completion of the Agreement, the Consultant shall
destroy any duplicate public records that are exempt or confidential and exempt
from public records disclosure requirements. If the Consultant keeps and
maintains public records upon completion of the Agreement, the Consultant shall
meet all applicable requirements for retaining public records. All records stored
electronically must be provided to the City, upon request from the City's
custodian of public records, in a format that is compatible with the information
technology systems of the City.
(D) REQUEST FOR RECORDS; NONCOMPLIANCE.
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(1) A request to inspect or copy public records relating to the City's contract for
services must be made directly to the City. If the City does not possess the
requested records, the City shall immediately notify the Consultant of the
request, and the Consultant must provide the records to the City or allow the
records to be inspected or copied within a reasonable time.
(2) Consultant's failure to comply with the City's request for records shall constitute a
breach of this Agreement, and the City, at its sole discretion, may: (1) unilaterally
terminate the Agreement; (2) avail itself of the remedies set forth under the
Agreement; and /or (3) avail itself of any available remedies at law or in equity.
(3)
A Consultant who fails to provide the public records to the City within a
reasonable time may be subject to penalties under s. 119,10.
(E) CIVIL ACTION.
(1)
If a civil action is filed against a Consultant to compel production of public records
relating to the City's contract for services, the court shall assess and award
against the Consultant the reasonable costs of enforcement, including
reasonable attorney fees, if:
a. The court determines that the Consultant unlawfully refused to comply with
the public records request within a reasonable time; and
b. At least 8 business days before filing the action, the plaintiff provided written
notice of the public records request, including a statement that the
Consultant has not complied with the request, to the City and to the
Consultant,
(2) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of
public records and to the Consultant at the Consultant's address listed on its
contract with the City or to the Consultant's registered agent. Such notices must
be sent by common carrier delivery service or by registered, Global Express
Guaranteed, or certified mail, with postage or shipping paid by the sender and
with evidence of delivery, which may be in an electronic format.
(3) A Consultant who complies with a public records request within 8 business days
after the notice is sent is not liable for the reasonable costs of enforcement.
(F) IF THE CONSULTANT HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONSULTANT'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
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MIAMI BEACH, FLORIDA 33139
E- MAIL: RAFAELGRANADO@MIAMIBEACHFLGOV
PHONE: 305 - 673 -7411
SECTION 11
NOTICES
All notices and communications in writing required or permitted hereunder, shall be delivered
personally to the representatives of the Consultant and the City listed below or may be mailed
by U.S. Certified Mail, return receipt requested, postage prepaid, or by a nationally recognized
overnight delivery service.
Until changed by notice, in writing, all such notices and. communications shall be addressed as
follows:
TO CONSULTANT:
TO CITY:
With a Copy to:
CBRE, Inc.
777 Brickeil Avenue
Miami, FL 33131
Attn: Shay Pope, Senior Vice President
City Manager's Office
City of Miami Beach
1700 Convention Center Drive, 4th Floor
Miami Beach, FL 33139
Attn: Jimmy L. Morales, City Manager
City of Miami Beach
1755 Meridian Ave., 3rd Floor
Miami Beach, FL 33139
Attn: Mark Milisits, Asset Manager
Notice may also be provided to any other address designated by the party to receive notice if such
alternate address is provided via U.S. certified mail, return receipt requested, hand delivered, or by
overnight delivery. In the event an alternate notice address is properly provided, notice shall be
sent to such alternate address in addition to any other address which notice would otherwise be
sent, unless other delivery instruction as specifically provided for by the party entitled to notice.
Notice shall be deemed given on the date of an acknowledged receipt, or, in all other cases, on the
date of receipt or refusal.
SECTION 12
MISCELLANEOUS PROVISIONS
12A CHANGES AND ADDITIONS
This Agreement cannot be modified or amended without the express written consent of the
parties. No modification, amendment, or alteration of the terms or conditions contained herein
shall be effective unless contained in a written document executed with the same formality and
of equal dignity herewith.
12.2 SEVERABILITY
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If any term or provision of this Agreement is held invalid or unenforceable, the remainder of this
Agreement shall not be affected and every other term and provision of this Agreement shall be
valid and be enforced to the fullest extent permitted by law.
12.3 ENTIRETY OF AGREEMENT
The City and Consultant agree that this is the entire Agreement between the parties. This
Agreement supersedes all prior negotiations, correspondence, conversations, agreements or
understandings applicable to the matters contained herein, and there are no commitments,
agreements or understandings concerning the subject matter of this Agreement that are not
contained in this document. Title and paragraph headings are for convenient reference and are
not intended to confer any rights or obligations upon the parties to this Agreement.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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IN WJTNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their appropriate officials, as of the date first entered above.
FOR CITY:
ATTEST:
By:
Date:
CITY OF MIAM BEACH, FLORIDA
Rafael Granado, City Clerk Philip Levine, Mayor
FOR CONSULTANT:
ATTEST:
By:
Date:
APPROVED AS TO
FORM &LANGUAGE
& FOR EXECUTION
City Attorney /ZAP
Ck\l/
CBRE, INC
Print Name and Title
12
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Date
EXHIBIT A
SCOPE OF SERVICES
I. Consultant is expected to provide customary real estate services to the City for City -owned
facilities. Broker(s) shall at a minimum have five (5) years of leasing experience representing
landlords or owners of real estate within the City Miami Beach, including, but not limited to the
following:
♦ Procuring tenants and assisting in negotiating leases for available various types
of properties, such as office, retail, and restaurant facilities.
♦ Developing and implementing marketing /advertising and leasing plan(s) for the
Facilities.
♦ Providing Comparative Market Analysis
♦ Consulting on the marketability of future City developments
♦
Lease Analysis and due diligence regarding prospective tenants.
• Samples of standard report(s) along with the reporting period of marketing,
advertising, and other activities involving prospective tenants for the landlords.
• Any other relevant experience.
IL S eci,fications:
Services provided by the consultant shall include, but not be limited to, the following:
Provisions for Broker to provide a full and detailed Marketing plan for a Facility including
a marketing budget and expense schedule within thirty (30) days of being assigned said
Facility by the City. If marketing plan is accepted, City will bear approved marketing
expenses.
• Show the Facility to interested parties
• Assist in negotiating the terms of the Agreement with Tenant.
• Advise City regarding valuation of the Facilities. City will obtain appraisal of the Facilities,
at its sole cost, if the City so desires.
• While assigned Facilities are vacant, Broker will provide monthly reports of marketing,
advertising, and other activities involving potential tenants for those Facilities. Reports
will be standardized and submitted as exhibited in the Agreement.
• Transferring the account to a different Broker without the City's approval is grounds for
termination without cause of the Agreement by the City.
• All other Terms, Commissions, and conditions as stated in Appendix D of the RFQ.
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• All real estate transactions to be processed with approval of the City and in accordance
with applicable rules, regulations and ordinances of the City of Miami Beach.
• Commission will only be paid to successful Broker and Co- Broker upon execution of a
lease agreement with a Tenant if procured by successful Broker. If Tenant is rejected by
the City for any reason or if negations are unsuccessful in executing a lease agreement
with Tenant, the City shall not be liable for any costs, claims, or commissions associated
with procuring potential Tenants.
• The City reserves the right to delete or cancel any portion or all services provided for in
the agreement for any or all Facilities at any time without cause and for convenience. If
such right is exercised by the City, it shall compensate for costs associated with the
partial termination of the agreement on the basis of the estimated percentage of
completion, as reasonably determined by the City.
Consultant and the City may agree on modifications or revisions to the task elements after the
City has assigned a facility to the Broker and a budget has been established for that task or
project. The Broker will submit a revised budget to the City for approval prior to proceeding with
the work.
III. Other /Additional Real Estate Services:
The City may purchase additional services related to real estate management, support,
operations, or other similar real estate related services. The City will provide a detailed scope of
services, timelines for performance, business strategies, and desired pricing model for the
service needed. Related real estate consulting and transactional services include, but may not
be limited to:
• Relocation Services
• Project Management Services
• Acquisition Services
• Sale, lease, or disposition of properties
• Trading and /or Swapping of properties
• Strategic consulting
• Real estate financial services
• Facilities management services
The Consultant will provide a quote in the format/method desired by the City, which can be
either a commission based quote, a flat fee for service quote, or an hourly rate quote, at rates to
be negotiated, and accepted by the City prior to commencing any work.
The corresponding Department Director shall have the delegated authority to accept and
approve additional real estate services for up to an amount not -to- exceed $50,000. Any
additional real estate services in excess of $50,000 must be reviewed and approved by the City
Manager. Any additional real estate services not executed in accordance herewith shall be null
and void.
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PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH
AND
THE KONIVER STERN GROUP, INC.
FOR
REAL ESTATE BROKERAGE SERVICES, PURSUANT TO
RFQ 2016- 152 -WG
This Professional Services Agreement ( "Agreement ") is entered into this day of
20 , 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
KONIVER STERN GROUP, Inc., a corporation, whose corporate address is 1665 Washington
Avenue, PH, Miami Beach, Florida 33139 ( "Consultant ").
SECTION 1
DEFINITIONS
Agreement: This Agreement between the City and Consultant, including any exhibits
and amendments thereto.
City Manager: The chief administrative officer of the City.
City Manager's
Designee: The City staff member who is designated by the City Manager to
administer this Agreement on behalf of the City. The City Manager's
designee shall be the Tourism, Culture and Economic Development
Department Director.
Consultant:
Services:
Fee:
For the purposes of this Agreement, Consultant shall be deemed to be an
independent contractor, and not an agent or employee of the City.
All services, work and actions by the Consultant performed or undertaken
pursuant to the Agreement.
Amount paid to the Consultant as compensation for Services.
Proposal Documents: Proposal Documents shall mean City of Miami Beach RFQ No. 2016 -152-
WG for REAL ESTATE BROKERAGE SERVICES, together with all
amendments thereto, issued by the City in contemplation of this
Agreement RFQ, and the Consultant's proposal in response thereto
( "Proposal "), all of which are hereby incorporated and made a part hereof;
provided, however, that in the event of an express conflict between the
Proposal Documents and this Agreement, the following order of
precedent shall prevail: this Agreement; the RFQ; and the Proposal.
Risk Manager:
The Risk Manager of the City, with offices at 1700 Convention Center
Drive, Third Floor, Miami Beach, Florida 33139; telephone number (305)
673 -7000, Ext. 6435; and fax number (305) 673-7023.
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SECTION 2
SCOPE OF SERVICES
2.1 In consideration of the Fee to be paid to Consultant by the City, Consultant shall provide
the work and services described in Exhibit "A ", sections! and II, hereto (the "Services ").
Although Consultant may be provided with a schedule of the available hours to provide its
services, the City shall not control nor have the right to control the hours of the services
performed by the Consultant; where the services are performed (although the City will provide
Consultant with the appropriate location to perform the services); when the services are
performed, including how many days a week the services are performed; how the services are
performed, or any other aspect of the actual manner and means of accomplishing the services
provided. Notwithstanding the foregoing, all services provided by the Consultant shall be to the
reasonable satisfaction of the City Manager. If there are any questions regarding the services
to be performed, Consultant should contact the following person:
Tourism, Culture and Economic Development
City of Miami Beach
1755 Meridian Ave., 3rd Floor
Miami Beach, FL 33139
Attn: Mark Milisits, Asset Manager
E -mail: MarkMilisits(7amiamibeachfl.gov
2.2 City may assign work to the Consultant on a project -by- project or individual lease basis.
Consultant shall only commence any Services, or portions thereof, upon issuance of a written
notice to proceed by the City. The City Manager shall have the delegated authority to accept,
approve, and authorize additional real estate services for up to an amount not -to- exceed
$50,000.00. Any additional real estate services in excess of $50,000 shall be subject to
approval by the City Commission. Any additional real estate services not executed in
accordance herewith shall be null and void.
2.3 NON- EXCLUSIVITY
This Agreement is non- exclusive. The City reserves the right, at its sole discretion, to
cause for the Services or any portion thereof, for any City facility or proposed lease, to be
performed by any other broker or contractor, or to perform the work with its own employees.
SECTION 3
TERM
The initial term of this Agreement ( "Term ") shall commence upon execution of this Agreement
by all parties hereto, and shall expire on November 27, 2017. This Agreement may be renewed
for an additional term of three (3) years, at the City Manager's sole option and discretion,
provided that all requirements of the City Code are satisfied, including but not limited to Section
2 -487 of the City Code ( "First Renewal Term "). Prior to the expiration of the First Renewal
Term, this Agreement may be renewed for an additional term of one (1) year, at the City
Manager's sole option and discretion ( "Second Renewal Term ").
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SECTION 2
SCOPE OF SERVICES
2.1 In consideration of the Fee to be paid to Consultant by the City, Consultant shall provide
the work and services described in Exhibit "A ", sections! and 11, hereto (the "Services ").
Although Consultant may be provided with a schedule of the available hours to provide its
services, the City shall not control nor have the right to control the hours of the services
performed by the Consultant; where the services are performed (although the City will provide
Consultant with the appropriate location to perform the services); when the services are
performed, including how many days a week the services are performed; how the services are
performed, or any other aspect of the actual manner and means of accomplishing the services
provided. Notwithstanding the foregoing, all services provided by the Consultant shall be to the
reasonable satisfaction of the City Manager. If there are any questions regarding the services
to be performed, Consultant should contact the following person:
Tourism, Culture and Economic Development
City of Miami Beach
1755 Meridian Ave., 3rd Floor
Miami Beach, FL 33139
Attn: Mark Milisits, Asset Manager
E -mail: MarkMilisitsCmiamibeachfl.gov
2.2 City may assign work to the Consultant on a project -by- project or individual lease basis.
Consultant shall only commence any Services, or portions thereof, upon issuance of a written
notice to proceed by the City. The City Manager shall have the delegated authority to accept,
approve, and authorize additional real estate services for up to an amount not -to- exceed
$50,000.00. Any additional real estate services in excess of $50,000 shall be subject to
approval by the City Commission. Any additional real estate services not executed in
accordance herewith shall be null and void.
2.3 NON - EXCLUSIVITY
This Agreement is non - exclusive. The City reserves the right, at its sole discretion, to
cause for the Services or any portion thereof, for any City facility or proposed lease, to be
performed by any other broker or contractor, or to perform the work with its own employees.
SECTION 3
TERM
The term of this Agreement ( "Term ") shall commence upon execution of this Agreement by all
parties hereto, and shall expire on November 27, 2017. This Agreement may be renewed for a
period of four (4) years, at the City Manager's sole option and discretion, provided that all
requirements of the City Code are satisfied, including but not limited to Section 2 -487 of the City
Code.
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SECTION 4
FEE / COMMISSION
4.1 Commissions paid to the Consultant for Services within the scope, as stipulated on
Exhibit A, Sections 1 and 11 of this agreement, shall be based on the net aggregate base rent,
not including operating expenses or pass through expenses, of no more than five (5) years of
the initial term of the lease ( "Base Rent ").
4.2 The Commission shall be four percent (4 %) of the Base Rent, payable to the Consultant
in two payments, fifty percent (50 %) upon lease execution and fifty percent (50 %) upon
occupancy of the premises by tenant and rent commencement. In the event tenant is
represented by a broker, Consultant shall be paid three percent (3 %) of the Base Rent, and
tenant's broker shall be paid three percent (3%) of the Base Rent.
4.3 Other / Additional Real Estate Services may be negotiated, as stated on Exhibit A,
Section 111, of this Agreement.
4.4 INVOICING
Upon receipt of an acceptable and approved invoice, payment(s) shall be made within forty -five
(45) days for that portion (or those portions) of the Services satisfactorily rendered (and
referenced in the particular invoice).
Invoices shall include a detailed description of the Services (or portions thereof) provided, the
Purchase Order Number (PO No.), and shall be submitted to the City at the following address:
Accounts Payable Division
Finance Department
City of Miami Beach
1700 Convention Center Drive, 3rd Floor
Miami Beach, FL 33139
SECTION 5
TERMINATION
5.1 TERMINATION FOR CAUSE
If the Consultant shall fail to fulfill in a timely manner, or otherwise violates, any of the
covenants, agreements, or stipulations material to this Agreement, the City, through its City
Manager, shall thereupon have the right to terminate this Agreement for cause. Prior to
exercising its option to terminate for cause, the City shall notify the Consultant of its violation of
the particular term(s) of this Agreement, and shall grant Consultant ten (10) days to cure such
default. If such default remains uncured after ten (10) days, the City may terminate this
Agreement without further notice to Consultant. Upon termination, the City shall be fully
discharged from any and all liabilities, duties, and terms arising out of, or by virtue of, this
Agreement.
Notwithstanding the above, the Consultant shall not be relieved of liability to the City for
damages sustained by the City by any breach of the Agreement by the Consultant. The City, at
its sole option and discretion, shall be entitled to bring any and all legal /equitable actions that it
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deems to be in its best interest in order to enforce the City's right and remedies against
Consultant. The City shall be entitled to recover all costs of such actions, including reasonable
attorneys' fees.
5.2 TERMINATION FOR CONVENIENCE OF THE CITY
THE CITY MAY ALSO, THROUGH ITS CITY MANAGER, AND FOR ITS CONVENIENCE
AND WITHOUT CAUSE, TERMINATE THE AGREEMENT AT ANY TIME DURING THE TERM
BY GIVING WRITTEN NOTICE TO CONSULTANT OF SUCH TERMINATION; WHICH SHALL
BECOME EFFECTIVE WITHIN THIRTY (30) DAYS FOLLOWING RECEIPT BY THE
CONSULTANT OF SUCH NOTICE. IF THE AGREEMENT IS TERMINATED FOR
CONVENIENCE BY THE CITY, CONSULTANT SHALL BE PAID FOR ANY SERVICES
SATISFACTORILY PERFORMED UP TO THE DATE OF TERMINATION; FOLLOWING
WHICH THE CITY SHALL BE DISCHARGED FROM ANY AND ALL LIABILITIES, DUTIES,
AND TERMS ARISING OUT OF, OR BY VIRTUE OF, THIS AGREEMENT.
5.3 TERMINATION FOR INSOLVENCY
The City also reserves the right to terminate the Agreement in the event the Consultant is
placed either in voluntary or involuntary bankruptcy or makes an assignment for the benefit of
creditors. In such event, the right and obligations for the parties shall be the same as provided
for in Section 5.2.
SECTION 6
INDEMNIFICATION AND INSURANCE REQUIREMENTS
6.1 INDEMNIFICATION
Consultant agrees to indemnify and hold harmless the City of Miami Beach and its officers,
employees, agents, and contractors, from and against any and all actions (whether at law or in
equity), claims, liabilities, losses, and expenses, including, but not limited to, attorneys' fees and
costs, for personal, economic or bodily injury, wrongful death, loss of or damage to property,
which may arise or be alleged to have arisen from the negligent acts, errors, omissions or other
wrongful conduct of the Consultant, its officers, employees, agents, contractors, or any other
person or entity acting under Consultant's control or supervision, in connection with, related to,
or as a result of the Consultant's performance of the Services pursuant to this Agreement. To
that extent, the Consultant shall pay all such claims and losses and shall pay all such costs and
judgments which may issue from any lawsuit arising from such claims and losses, and shall pay
all costs and attorneys' fees expended by the City in the defense of such claims and losses,
including appeals. The Consultant expressly understands and agrees that any insurance
protection required by this Agreement or otherwise provided by the Consultant shall in no way
limit the Consultant's responsibility to indemnify, keep and save harmless and defend the City or
its officers, employees, agents and instrumentalities as herein provided.
The parties agree that one percent (1%) of the total compensation to Consultant for
performance of the Services under this Agreement is the specific consideration from the City to
the Consultant for the Consultant's indemnity agreement. The provisions of this Section 6.1 and
of this indemnification shall survive termination or expiration of this Agreement.
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6.2 INSURANCE REQUIREMENTS
The Consultant shall maintain and carry in full force during the Term, the following insurance:
A. Worker's Compensation for all employees of the provider as required by Florida Statute
440 and Employer's Liability Insurance in an amount not less than $1,000,000.
B. Commercial General Liability on a comprehensive basis in an amount not less than
$1,000,000 combined single limit per occurrence, for bodily injury and property damage. City of
Miami Beach must be shown as an additional insured with respect to this coverage.
C. Automobile Liability for all owned, non -owned and hired vehicles used in connection with
this agreement, in an amount not less than $1,000,000 combined single limit per occurrence, for
bodily injury and property damage.
D. Professional Liability Insurance in an amount not less than $1,000,000.
The insurance must be furnished by insurance companies authorized to do business in the
State of Florida. All insurance policies must be issued by companies rated no less than "B--" as
to management and not less than "Class VI" as to strength by the latest edition of Best's
Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent.
All of Consultant's certificates shall contain endorsements providing that written notice shall be
given to the City at least thirty (30) days prior to termination, cancellation or reduction in
coverage in the policy. The insurance certificates for General Liability shall include the City as
an additional insured and shall contain a waiver of subrogation endorsement.
Compliance with the foregoing requirements shall not relieve the Consultant of the liabilities and
obligations under this Section or under any other portion of this Agreement.
The Consultant shall not commence any work and or services pursuant to this Agreement until
all insurance required under this Section has been obtained and such insurance has been
approved by the City's Risk Manager.
SECTION 7
LITIGATION JURISDICTIONNENUE /JURY TRIAL WAIVER
This Agreement shall be construed in accordance with the laws of the State of Florida. This
Agreement shall be enforceable in Miami -Dade County, Florida, and if legal action is necessary
by either party with respect to the enforcement of any or all of the terms or conditions herein,
exclusive venue for the enforcement of same shall lie in Miami -Dade County, Florida. By
entering into this Agreement, Consultant and the City expressly waive any rights either party
may have to a trial by jury of any civil litigation related to or arising out of this Agreement.
SECTION 8
LIMITATION OF CITY'S LIABILITY
The City desires to enter into this Agreement only if in so doing the City can place a limit on the
City's liability for any cause of action, for money damages due to an alleged breach by the City
of this Agreement, so that its liability for any such breach never exceeds the sum of the
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compensation /fee to be paid to the Consultant pursuant to this Agreement, less any amounts
actually paid by the City as of the date of the alleged breach. Consultant hereby expresses its
willingness to enter into this Agreement with Consultant's recovery from the City for any
damages from any action for breach of contract to be limited to a maximum amount of the
compensation /fee to be paid to the Consultant pursuant to this Agreement, less any amounts
actually paid by the City as of the date of the alleged breach.
Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant
hereby agrees that the City shall not be liable to the Consultant for damages in an amount in
excess of the compensation /fee to be paid to the Consultant pursuant to this Agreement, less
any amounts actually paid by the City as of the date of the alleged breach, for any action or
claim for breach of contract arising out of the performance or non- performance of any
obligations imposed upon the City by this Agreement.
Nothing contained in this section or elsewhere in this Agreement is in any way intended to be a
waiver of the limitation placed upon the City's liability, as set forth in Section 768.28, Florida
Statutes.
SECTION 9
DUTY OF CARE /COMPLIANCE WITH APPLICABLE LAWS /PATENT RIGHTS; COPYRIGHT;
AND CONFIDENTIAL FINDINGS
9.1 DUTY OF CARE
With respect to the performance of the work and /or service contemplated herein, Consultant
shall exercise that degree of skill, care, efficiency and diligence normally exercised by
reasonable persons and /or recognized professionals with respect to the performance of
comparable work and /or services.
9.2 COMPLIANCE WITH APPLICABLE LAWS
In its performance of the work and /or services, Consultant shall comply with all applicable laws,
ordinances, and regulations of the City, Miami -Dade County, the State of Florida, and the
federal government, as applicable.
9.3 PATENT RIGHTS; COPYRIGHT; CONFIDENTIAL FINDINGS
Any work product arising out of this Agreement, as well as all information specifications,
processes, data and findings, are intended to be the property of the City and shall not otherwise
be made public and /or disseminated by Consultant, without the prior written consent of the City
Manager, excepting any information, records etc. which are required to be disclosed pursuant to
Court Order and /or Florida Public Records Law.
All reports, documents, articles, devices, and /or work produced in whole or in part under this
Agreement are intended to be the sole and exclusive property of the City, and shall not be
subject to any application for copyright or patent by or on behalf of the Consultant or its
employees or sub - consultants, without the prior written consent of the City Manager.
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SECTION 10
GENERAL PROVISIONS
10.1 AUDIT AND INSPECTIONS
Upon reasonable verbal or written notice to Consultant, and at any time during normal
business hours (i.e. 9AM — 5PM, Monday through Fridays, excluding nationally recognized
holidays), and as often as the City Manager may, in his /her reasonable discretion and
judgment, deem necessary, there shall be made available to the City Manager, and /or such
representatives as the City Manager may deem to act on the City's behalf, to audit, examine,
and/ or inspect, any and all other documents and /or records relating to all matters covered by
this Agreement. Consultant shall maintain any and all such records at its place of business at
the address set forth in the "Notices" section of this Agreement.
10.2 [INTENTIONALLY DELETETD]
10.3 ASSIGNMENT TRANSFER OR SUBCONSULTING
Consultant shall not subcontract, assign, or transfer all or any portion of any work and /or
service under this Agreement without the prior written consent of the City Manager, which
consent, if given at all, shall be in the Manager's sole judgment and discretion. Neither this
Agreement, nor any term or provision hereof, or right hereunder, shall be assignable unless as
approved pursuant to this Section, and any attempt to make such assignment (unless
approved) shall be void.
10.4 PUBLIC ENTITY CRIMES
Prior to commencement of the Services, the Consultant shall file a State of Florida Form PUR
7068, Sworn Statement under Section 287.133(3)(a) Florida Statute on Public Entity Crimes
with the City's Procurement Division.
10.5 NON - DISCRIMINATION
In connection with the performance of the Services, the Consultant shall not exclude from
participation in, deny the benefits of, or subject to discrimination anyone on the grounds of
race, color, national origin, sex, age, disability, religion, income or family status.
Additionally, Consultant shall comply fully with the City of Miami Beach Human Rights
Ordinance, codified in Chapter 62 of the City Code, as may be amended from time to time,
prohibiting discrimination in employment, housing, public accommodations, and public
services on account of actual or perceived race, color, national origin, religion, sex,
intersexuality, gender identity, sexual orientation, marital and familial status, age, disability,
ancestry, height, weight, domestic partner status, labor organization membership, familial
situation, or political affiliation.
10.6 CONFLICT OF INTEREST
Consultant herein agrees to adhere to and be governed by all applicable Miami -Dade County
Conflict of Interest Ordinances and Ethics provisions, as set forth in the Miami -Dade County
Code, as may be amended from time to time; and by the City of Miami Beach Charter and
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Code, as may be amended from time to time; both of which are incorporated by reference as if
fully set forth herein.
Consultant covenants that it presently has no interest and shall not acquire any interest,
directly or indirectly, which could conflict in any manner or degree with the performance of the
Services. Consultant further covenants that in the performance of this Agreement, Consultant
shall not employ any person having any such interest. No member of or delegate to the
Congress of the United States shall be admitted to any share or part of this Agreement or to
any benefits arising therefrom.
10.7 CONSULTANT'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS LAW
(A) Consultant shall comply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time.
(B) The term "public records" shall have the meaning set forth in Section 119.011(12), which
means all documents, papers, letters, maps, books, tapes, photographs, films, sound
recordings, data processing software, or other material, regardless of the physical form,
characteristics, or means of transmission, made or received pursuant to law or
ordinance or in connection with the transaction of official business of the Employer.
(C) Pursuant to Section 119.0701 of the Florida Statutes, if the Consultant meets the
definition of "Contractor" as defined in Section 119.0701(1)(a), the Consultant shall:
(1) Keep and maintain public records required by the City to perform the service;
(2) Upon request from the City's custodian of public records, provide the City with a
copy of the requested records or allow the records to be inspected or copied
within a reasonable time at a cost that does not exceed the cost provided in
Chapter 119, Florida Statutes or as otherwise provided by law;
Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed, except as authorized
by law, for the duration of the contract term and following completion of the
Agreement if the Consultant does not transfer the records to the City;
(4) Upon completion of the Agreement, transfer, at no cost to the City, all public
records in possession of the Consultant or keep and maintain public records
required by the City to perform the service, If the Consultant transfers all public
records to the City upon completion of the Agreement, the Consultant shall
destroy any duplicate public records that are exempt or confidential and exempt
from public records disclosure requirements. If the Consultant keeps and
maintains public records upon completion of the Agreement, the Consultant shall
meet all applicable requirements for retaining public records. All records stored
electronically must be provided to the City, upon request from the City's
custodian of public records, in a format that is compatible with the information
technology systems of the City.
(3)
(D) REQUEST FOR RECORDS; NONCOMPLIANCE.
(1) A request to inspect or copy public records relating to the City's contract for
services must be made directly to the City. If the City does not possess the
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requested records, the City shall immediately notify the Consultant of the
request, and the Consultant must provide the records to the City or allow the
records to be inspected or copied within a reasonable time.
(2) Consultant's failure to comply with the City's request for records shall constitute a
breach of this Agreement, and the City, at its sole discretion, may; (1) unilaterally
terminate the Agreement; (2) avail itself of the remedies set forth under the
Agreement; and/or (3) avail itself of any available remedies at law or in equity.
(3) A Consultant who fails to provide the public records to the City within a
reasonable time may be subject to penalties under s. 119.10.
(E) CIVIL ACTION.
(1) If a civil action is filed against a Consultant to compel production of public records
relating to the City's contract for services, the court shall assess and award
against the Consultant the reasonable costs of enforcement, including
reasonable attorney fees, if:
a. The court determines that the Consultant unlawfully refused to comply with
the public records request within a reasonable time; and
b. At least 8 business days before filing the action, the plaintiff provided written
notice of the public records request, including a statement that the
Consultant has not complied with the request, to the City and to the
Consultant.
(2) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of
public records and to the Consultant at the Consultant's address listed on its
contract with the City or to the Consultant's registered agent. Such notices must
be sent by common carrier delivery service or by registered, Global Express
Guaranteed, or certified mail, with postage or shipping paid by the sender and
with evidence of delivery, which may be in an electronic format.
(3) A Consultant who complies with a public records request within 8 business days
after the notice is sent is not liable for the reasonable costs of enforcement,
(F) IF THE CONSULTANT HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONSULTANT'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADO EACHF GOV
PHONE: 305-673-7411
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SECTION 11
NOTICES
All notices and communications in writing required or permitted hereunder, shall be delivered
personally to the representatives of the Consultant and the City listed below or may be mailed
by U.S. Certified Mail, return receipt requested, postage prepaid, or by a nationally recognized
overnight delivery service.
Until changed by notice, in writing, all such notices and communications shall be addressed as
follows:
TO CONSULTANT:
TO CITY:
With a Copy to:
The Koniver Stern Group, Inc.
1665 Washington Avenue, PH
Miami Beach, FL 33139
Attn: Lyle Stern, Director
City Manager's Office
City of Miami Beach
1700 Convention Center Drive, 4th Floor
Miami Beach, FL 33139
Attn: Jimmy L. Morales, City Manager
City of Miami Beach
1755 Meridian Ave., 3rd Floor
Miami Beach, FL 33139
Attn: Mark Milisits, Asset Manager
Notice may also be provided to any other address designated by the party to receive notice if such
alternate address is provided via U.S. certified mail, return receipt requested, hand delivered, or by
overnight delivery. In the event an alternate notice address is properly provided, notice shall be
sent to such alternate address in addition to any other address which notice would otherwise be
sent, unless other delivery instruction as specifically provided for by the party entitled to notice.
Notice shall be deemed given on the date of an acknowledged receipt, or, in all other cases, on the
date of receipt or refusal.
SECTION 12
MISCELLANEOUS PROVISIONS
12A CHANGES AND ADDITIONS
This Agreement cannot be modified or amended without the express written consent of the
parties. No modification, amendment, or alteration of the terms or conditions contained herein
shall be effective unless contained in a written document executed with the same formality and
of equal dignity herewith.
12.2 SEVERABILITY
If any term or provision of this Agreement is held invalid or unenforceable, the remainder of this
Agreement shall not be affected and every other term and provision of this Agreement shall be
valid and be enforced to the fullest extent permitted by law.
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12.3 ENTIRETY OF AGREEMENT
The City and Consultant agree that this is the entire Agreement between the parties. This
Agreement supersedes all prior negotiations, correspondence, conversations, agreements or
understandings applicable to the matters contained herein, and there are no commitments,
agreements or understandings concerning the subject matter of this Agreement that are not
contained in this document. Title and paragraph headings are for convenient reference and are
not intended to confer any rights or obligations upon the parties to this Agreement.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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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:
Rafael Granado, City Clerk Philip Levine, Mayor
Date:
FOR CONSULTANT:
ATTEST:
By:
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
THE KONIVER STERN GROUP, INC
Print Name and Title Print Name and Title
Date:
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EXHIBIT A
SCOPE OF SERVICES
I. Consultant is expected to provide customary real estate services to the City for City -owned
facilities. Broker(s) shall at a minimum have five (5) years of leasing experience representing
landlords or owners of real estate within the City Miami Beach, including, but not limited to the
following:
♦ Procuring tenants and assisting in negotiating leases for available various types
of properties, such as office, retail, and restaurant facilities.
♦ Developing and implementing marketing /advertising and leasing plan(s) for the
Facilities.
♦ Providing Comparative Market Analysis
♦ Consulting on the marketability of future City developments
• Lease Analysis and due diligence regarding prospective tenants.
♦ Samples of standard report(s) along with the reporting period of marketing,
advertising, and other activities involving prospective tenants for the landlords.
s Any other relevant experience.
IL Specifications:
Services provided by the consultant shall include, but not be limited to, the following:
• Provisions for Broker to provide a full and detailed Marketing plan for a Facility including
a marketing budget and expense schedule within thirty (30) days of being assigned said
Facility by the City. If marketing plan is accepted, City will bear approved marketing
expenses.
• Show the Facility to interested parties
• Assist in negotiating the terms of the Agreement with Tenant,
• Advise City regarding valuation of the Facilities. City will obtain appraisal of the Facilities,
at its sole cost, if the City so desires.
• While assigned Facilities are vacant, Broker will provide monthly reports of marketing,
advertising, and other activities involving potential tenants for those Facilities. Reports
will be standardized and submitted as exhibited in the Agreement.
• Transferring the account to a different Broker without the City's approval is grounds for
termination without cause of the Agreement by the City.
• All other Terms, Commissions, and conditions as stated in Appendix D of the RFQ.
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• All real estate transactions to be processed with approval of the City and in accordance
with applicable rules, regulations and ordinances of the City of Miami Beach.
• Commission will only be paid to successful Broker and Co- Broker upon execution of a
lease agreement with a Tenant if procured by successful Broker. If Tenant is rejected by
the City for any reason or if negations are unsuccessful in executing a lease agreement
with Tenant, the City shall not be liable for any costs, claims, or commissions associated
with procuring potential Tenants.
• The City reserves the right to delete or cancel any portion or all services provided for in
the agreement for any or all Facilities at any time without cause and for convenience. If
such right is exercised by the City, it shall compensate for costs associated with the
partial termination of the agreement on the basis of the estimated percentage of
completion, as reasonably determined by the City.
Consultant and the City may agree on modifications or revisions to the task elements after the
City has assigned a facility to the Broker and a budget has been established for that task or
project. The Broker will submit a revised budget to the City for approval prior to proceeding with
the work.
111. Other /Additional Real Estate Services:
The City may purchase additional services related to real estate management, support,
operations, or other similar real estate related services. The City will provide a detailed scope of
services, timelines for performance, business strategies, and desired pricing model for the
service needed. Related real estate consulting and transactional services include, but may not
be limited to:
• Relocation Services
• Project Management Services
• Acquisition Services
• Sale, lease, or disposition of properties
• Trading and /or Swapping of properties
• Strategic consulting
• Real estate financial services
• Facilities management services
The Consultant will provide a quote in the format /method desired by the City, which can be
either a commission based quote, a flat fee for service quote, or an hourly rate quote, at rates to
be negotiated, and accepted by the City prior to commencing any work.
The corresponding Department Director shall have the delegated authority to accept and
approve additional real estate services for up to an amount not -to- exceed $50,000. Any
additional real estate services in excess of $50,000 must be reviewed and approved by the City
Manager. Any additional real estate services not executed in accordance herewith shall be null
and void.
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