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R20-090 1 RESOLUTION NO. R20-090 2 3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, 4 FLORIDA, APPROVING AND AUTHORIZING THE 5 MAYOR TO SIGN AMENDMENT TO TOWN SQUARE 6 REDEVELOPMENT PHASE II SERVICE AGREEMENT 7 FOR ADDITIONAL CONSULTING SERVICES TO 8 MARKET AND LEASE THE INNOVATION AND CAFE' 9 SPACE IN CITY HALL AND THE CAFE SPACE IN THE 10 CULTURAL CENTER; AND PROVIDING AN EFFECTIVE 11 DATE. 12 13 WHEREAS, the City has developed a mixed-use facility that includes a City Hall, 14 Library, Café, Innovation space and cultural space which requires experienced Commercial 15 Real Estate Advisory Services to maximize the usage of these spaces by the public and private 16 companies; and 17 WHEREAS, E2L Real Estate Solutions is the Master Developer for the Town Square 18 project and AvisonYoung was included on the development team to market and lease any space 19 constructed within the new City buildings; and 20 WHEREAS, the City is ready to move forward with leasing three spaces within the 21 new buildings; and 22 WHEREAS,the City Commission of the City of Boynton Beach upon recommendation 23 of staff,deems it to be in the best interest of the citizens of the City of Boynton Beach to approve 24 and authorize the Mayor to sign the Amendment to Town Square Redevelopment Phase II 25 Services Agreement to market and lease the innovation and cafe'space in City Hall and the cafe 26 space in the Cultural Center. 27 NOW,THEREFORE,BE IT RESOLVED BY THE CITY COMMISSION OF 28 THE CITY OF BOYNTON BEACH,FLORIDA,THAT: 29 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as 30 being true and correct and are hereby made a specific part of this Resolution upon adoption. 31 Section 2. The City Commission of the City of Boynton Beach, Florida, hereby S:\CA\RESO\Agreements\Amendment to Phase II Service Agreement(E2L)-Reso.docx -1- 32 approves and authorizes the Mayor to sign the Amendment to Town Square Redevelopment 33 Phase II Service Agreement to market and lease the innovation and cafe' space in City Hall and 34 the cafe space in the Cultural Center, a copy of which Amendment is attached hereto as Exhibit 35 "A". 36 Section 3. That this Resolution shall become effective immediately. 37 PASSED AND ADOPTED this )21: day of September, 2020 38 CITY OF BOYNTON BEACH, FLORIDA 39 40 YES NO 41 42 Mayor—Steven B. Grant 43 44 Vice-Mayor—Ty Penserga 45 46 Commissioner—Justin Katz 47 48 Commissioner—Woodrow L. Hay 49 50 Commissioner—Christina L. Romelus 51 52 VOTE 53 54 ATTEST: 55 56 57 4 .X217.24:2-1-- 58 C stat Gibson, MMC 59 City Clerk 60 61 62 (Corporate Seal) 63; C. • S:\CA\RESO\Agreements\Amendment to Phase II Service Agreement(E2L)-Reso.docx -2- Sao - o9O AMENDMENT TO THE TOWN SQUARE REDEVELOPMENT PHASE 2 SERVICES AGREEMENT THIS AMENDMENT,dated the 24th day of August,2020 between: CITY OF BOYNTON BEACH,a municipal corporation,with its principal place of business at 100 East Ocean Avenue, Boynton Beach, Florida 33435, hereinafter referred to as "City"; and E2L REAL ESTATE SOLUTIONS,LLC,a Florida limited liability company,with its principal place of business at 1400 W. Fairbanks Ave., Suite 201, Winter Park, Florida 32789,hereinafter referred to as"Company" WITNESSETH: WHEREAS, on March 23, 2018, the City and Company entered into the Town Square Redevelopment Phase 2 Services Agreement ("Agreement") whereby Company was engaged to provide certain Phase 2 Services as defined in the Agreement with respect to the City's Town Square Development(the"Development"); and WHEREAS, the City and the Company desire to enter into this Amendment to the Agreement in order to provide vendor recruitment and selection services for the incubator space and café spaces in city hall and café space in the cultural center. NOW,THEREFORE,for and in consideration of the mutual covenants and other good and valuable consideration,the Parties hereto agree as follows: SECTION 1. The foregoing "Whereas" clauses are hereby ratified as being true and correct, and incorporated herein. SECTION 2. That the attached services scope in attachment 'A" covering the services of Avison Young on behalf of the project shall become part of the Town Square Redevelopment Services and shall hereby increase the contract value for Company by Fifty Thousand and 00/100 Dollars to cover the services of Avison Young. SECTION 3. The time of agreement shall be extended to support these services through December 31's, 2020 and any associated overhead and costs consideration to Company shall be addressed in a separate agreement. IN WITNESS WHEREOF, the City has caused this Amendment to be duly executed in its name and behalf and the Company has caused this Amendment to be duly executed in its name and behalf on the dates set forth below. Page 1 of 2 CITY OF BOYNTON BEACH,F ORIDA BY: 'I VEN B. GRAN ,MAYOR ATTEST: BY:,.4-4- AL/ Date: 5140,14.441.,5140,14.441.,-- // ,2020 'rystal Gibson, MMC " City Clerk (Seal) APPROVED AS TO FORM AND LEGAL SUFFICIENCY , - We. J les A. Che k ' 1 City Attorney E2L REAL TATE SOL ONS,LLC C-c:"; • ;A,_,A--44•.1 N - /442 "PE2/Ai Its 7/?)1_,& .5' Date: 9/.$/Z1r Page 2 of 2 CITY OF BOYNTON BEACH, ORIDA v BY: `, VEN B. GRAN—,MAYOR ATTEST: BY: — Date: � er /f , 2020 /1; z—tZrystal Gibson, MMC I City Clerk r 'r • /11 Q . . r, APPROVE AS TO FORM AND LEGAt-SUFFICIENCY ,A J sues A. Che ' 1 City Attorney E2L REAL ESTATE SOLUTIONS, LLC By Name Its Date: Page 2 of 2 AVISON YOUNG 1875 NW Corporate Blvd. Suite 105 Boca Raton,FL 33431 USA T 561 893 7011 F 954 938 1812 avisonyoung.com Mark Hefferin E2L Real Estate Solutions,LLC 1400 W.Fairbanks Ave., Suite 201 Winter Park,FL 32789 Proposal This Proposal is dated August 24,2020, between E2L Real Estate Solutions,LLC("Client and City of Boynton Beach")located at 1400 W Fairbanks Ave.,Suite 201,Winter Park,FL 32789 and Avison Young-Florida,LLC ("Consultant")having an address at 1875 NW Corporate Boulevard,Suite 105,Boca Raton,FL 33431.The Proposal is for the work described in the Consultant Scope of Work within this Proposal. The purpose of this Proposal is for Client and City of Boynton Beach to engage Consultant to provide services as set forth in this Proposal.It is the intention of the Parties that this Proposal set forth the general parameters for the relationship between Client and City of Boynton Beach and Client and City of Boynton Beach with respect to the Project as described herein.When providing the service and taking action in connection with the Project,Consultant shall be doing so as agent Client and City of Boynton Beach with E2L as conduit for processing of payment only. General Description of the Project The Client and City of Boynton Beach has been awarded the P3/Town Square Boynton Beach Project by the City of Boynton Beach.The City has developed a mixed-usefacilitythat includes a City Hall,Library,Café,Innovation spaceand cultural space which requires experienced Commercial Real Estate Advisory Services to maximize the usage of these spaces by the public and private companies.(the"Project"). Consultant Scope of Services Avison Young(hereinafter referred to as("Consultant")will provide the following services: • Meet as needed with Client and City of Boynton Beach to evaluate the process and progress of the solicitation and the pending submittals by the qualified private and perspective tenants derived from direct solicitation and potentially an RFP process • Provide input and strategic advice to the Client and City of Boynton Beach relative to the value enhancing uses to meet the City's needs for the future growth and prosperity of its constituents • Provide input and advice to the Client and City of Boynton Beach regarding the impact of the development to the Master Plan of the Client and City of Boynton Beach and the impact of this Project relative to the long-term development of the Town Square Boynton Beach Project and related nearby activity zones. • Provide input and advice to the Client and City of Boynton Beach regarding the wealth creation and diversity objectives of the Project • Provide input and advice to the Client and City of Boynton Beach regarding the schedule for successful delivery of the occupant's space including time for permitting and construction using local partnerships as appropriate • Provide input and advice to the Client and City of Boynton Beach regarding the project management information provided by E2L throughout the marketing and leasing initiative • Execute a robust outreach for Partnerships such as FAU Tech Runway,The Research Park at FAU,Lynn University Social Impact Lab,FAU Al Lab,Chamber of Commerce YEA program,and all local Boynton Beach based accelerator,incubator,organizations AVISON YOUNG • Engage with all governmental agencies,economic development organizations such as the CRA,BDB to the benefit of the Project. Additional Services (Optional - not included in Proposal Fee) • Provide on-site post occupancy management to ensure all open issues and punch list items are resolved in order of priority • Request and confirm issue of final documentation including as-built drawings and specifications,manuals and warranties and attic stock turnover • Manage close out of all Authority Having Jurisdiction("AHJ")applications • Coordinate the timely and satisfactory completion of architect's and/or owner's punch lists • Complete final closeout of accounts for all Project Team and Client and City of Boynton Beach's own consultants including final negotiations of all change orders • Establish the schedule for the release of all payment applications including final retainer upon completion of the punch lists • Provide a final cost summary to the Client and City of Boynton Beach including all change orders. This will include a comparison to the approved budget • Issue final project close out notices to the projectteam Project Schedule It is anticipated that the marketing and leasing initiative as well as potential RFP will commence August 24d.The entire project should take approximately 9-12 months.Schedule shall be based on commission presentation provided August 19,2020 for the Incubator Space. Project Fee Based on our understanding of the project and the preliminary schedule,we propose to provide the consulting services outlined herein for a monthly fee.Fees will be invoiced with an initial retainer of$15,000 and then in monthly installments of$5,000 per month starting August 1st.Customary reimbursable expenses,such as travel,printing, copying,and courier and messenger services to be billed at cost in separate invoices without any markup fee. Invoices are due upon receipt.We are not anticipating any reimbursable expenses and would request approval in advance from the Client and City of Boynton Beach.Cost of marketing package,video development mail distribution-post cards are estimated at$5K,Coupled with the 6 months of services the total fee for city approval is then$15K plus 6 months at$5K=$30K or$50K total.Additional representation fee for leasing of the space is to be combined with this agreement. Timeline Should the timeline or scope change significantly,both parties agree to revisit the fee structure and discuss a possible change order for additional services. Fees for Additional Services At the Client and City of Boynton Beach request,the Consultant can provide additional optional services related to the project management and development of the Project for an agreed upon negotiated additionalfee. Responsibilities of Client and City of Boynton Beach Client and City of Boynton Beach will designate a representative to issue and communicate the directives and decisions of Client and City of Boynton Beach with respect to the Project. Client and City of Boynton Beach may change their representative by providing written notice of such change to Consultant. Policy Against Self-Dealing In connection with the performance of obligations under this Proposal,Consultant shall not in any way accept any commissions,fees,gifts or awards of any kind from any vendors or contractors involved in the Project nor engage any party for work on the Project with an affiliation,directly or indirectly,with Consultant,except with the prior written consent of Client and City of Boynton Beach,after full disclosure of such affiliation to Client and City of Boynton Beach. AVISON YOUNG Clarification City of Boynton Beach is responsible for contracting with and paying for legal and engineering services and other third parties engaged in connection with the Project.Although Consultant's duties may include monitoring and coordinating their work,and advising City of Boynton Beach with respect to any material non-compliance with their obligations of which Consultant becomes aware,Consultant is not responsible to guaranty performance of work completed by others and shall not be responsible for the following(or any resulting consequences,costs or damages):(i)the professional errors or omissions of the Architect,Engineer,or other professionals engaged in connection with the Project,(ii)a breach by the Architect, Engineer,Contractor or other third parties of any of their respective obligations or contracts,or their failure to perform their services within the time or cost parameters required by their respective contracts,(iii)failure of any person other than Consultant to comply with laws applicable to its work or services,(iv)or defects or deficiencies in the work or performance of others. In performing its services and carrying out its obligations hereunder,Consultant is entitled to rely in good faith on the professional judgement,advice,opinions,certifications,plans and other work product of the Attorney,Architect, Engineer and other professionals employed in connection with the Project,and to assume absent actual knowledge to the contrary that the services and work product of the other members of the project team,and other third parties engaged in the Project,comply with applicable laws. Consultant shall advise Client and City of Boynton Beach if it obtains actual knowledge that such work may not be in compliance with applicable laws,or their respective contracts,and will assist Client and City of Boynton Beach in addressing such non-compliance.Consultant is not expected to have,use or apply the professional knowledge, experience and judgment expected of licensed professionals. Consultant is not responsible to supervise or control the performance of work by any third parties including without limitation Architect,Engineeror Contractor,or any of theiremployees,servants,materials suppliers or subcontractors, or to determine the methods or manner in which their services and work are performed.Client and City of Boynton Beach will look only to such third parties for damages or other remedies resulting from defects or deficiencies in the performance of their work. Indemnification The City of Boynton Beach will indemnify,defend with counsel reasonably satisfactory to and hold harmless Consultant and its members,managers,employees,agents and affiliates and the members,managers,employees and agents of its affiliates from and against any and all claims, liabilities,losses,costs,judgments,settlements, penalties,fines and expenses(including attorneys'fees and legal expenses related to such defense)of any kind or type("Liabilities")asserted by any third party or paid or incurred by Consultant,where such Liabilities arise out of, relate to,result from or are in connection with,on account of or with respect to the services related to the Project or the ownership,operation or condition of the property on which the Project is being developed or any improvements now existing or hereafter constructed on such property,other than any Liabilities resulting of the fraud,gross negligence or willful misconduct of Consultant. Consultant will indemnify,defend with counsel reasonably acceptable to and hold harmless the Client and City of Boynton Beach and its members,managers,employees,agents and affiliates and the members,managers, employees and agents of its affiliates from and against any Liabilities asserted by any third party or paid or incurred by Client and City of Boynton Beach,where such Liabilities arise out of,relate to,result from or are in connection with, on account of or with respect to the fraud,gross negligence or willful misconduct of Client and City of Boynton Beach. The indemnification obligations of this Section will survive the expiration or other termination of this Agreement. The party entitled to indemnification(the"Indemnified Party")will promptly notify the party obligated to provide the indemnification(the"Indemnifying Party")any claim for indemnification and the Indemnifying Party will AVISON YOUNG conduct the defense of the Indemnified Party at the Indemnifying Party's sole expense,subject to the Indemnified Party's reasonable direction,assistance and cooperation. EXCEPT WITH RESPECT TO GROSS NEGLIGENCE,WILFULL MISCONDUCT OR FRAUD,IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY,SPECIAL,INCIDENTAL,OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT. EXCEPT WITH RESPECT TO GROSS NEGLIGENCE OR WILFULL MISCONDUCT,EACH PARTY'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT,WHETHER IN CONTRACT OR TORT OR OTHERWISE,SHALL NOT EXCEED THE AGGREGATE AMOUNT OF FEES PAID OR PAYABLE BY THE CLIENT and CITY OF BOYNTON BEACH TO CONSULTANT FOR SERVICES PERFORMED. Consultant's Personnel Client and City of Boynton Beach agrees that no offer of employment or compensation for employment shall be made by Client and City of Boynton Beach,its affiliates,subsidiaries and contractors to any Consultant's employee or independent contractor or for Consultant for a period of 12 months following receipt of final payment by Consultant. Termination In the eventthat Consultantfails to perform the services setforth in this Proposal,Client and City of Boynton Beach shall notify Consultant,in writing,of the nature of the default. In the event Consultant fails to cure the default within ten(10)daysfollowing receipt of such notice,Client and City of Boynton Beach may terminate this Proposal at the expiration of the notice period. Notwithstanding the foregoing,Client and City of Boynton Beach may terminate this Proposal without cause upon thirty(30) days prior written notice after the sixth month of the executed agreement. In the event of termination without cause, Consultant shall be paid for all time required to complete work desired by the Client and City of Boynton Beach and shall be entitled to retain the Retention Fee. In the event that Client and City of Boynton Beach fails to make any payments to the Consultant pursuant to this Proposal when due,the Consultant shall notify the Client and City of Boynton Beach in writing of its failure to make such payments.In the event the Client and City of Boynton Beach fails to pay the Consultant within ten(10)working days following receipt of such notice,the Consultant may suspend performance of its obligations under this Proposal for the Project until such time as the Client and City of Boynton Beach resumes making payments. However,the Consultant shall not be obligated to resume performance on the Project in the event that the failure to make payments continues for a period greater than thirty(30)days. Insurance It shall be City of Boynton Beach's obligation to maintain all appropriate insurance necessary in connection with the Project,including builders'risk insurance for the full value of the Project covering the interests of Client and City of Boynton Beach and Consultant. Miscellaneous Terms The laws of the State in which the project occurs shall govern this Proposal. All notices to be given pursuant to or in connection with this Proposal whether required to be given hereunder or not shall be in writing and delivered by certified mail,return receipt requested or by messenger,with acknowledgment of receipt returned to sender,at their respective addresses as set forth in the first paragraph of this Proposal or by email.Consultant shall cooperate with and assist Client and City of Boynton Beach in the defense of any legal action brought against Client and City of Boynton Beach provided that no conflict of interest remains unresolved.This shall be considered an additional service. Consultant may not assign this Proposal without the written consent of Client and City of Boynton Beach,which may be withheld for any reason. Nothing in this Proposal shall be deemed to create an employer/employee relationship between Client and City of Boynton Beach and Consultant. AVISON YOUNG This Proposal may be amended or compliance with any term or condition hereof may be waived,only if agreed to in writing by the parties hereto,or in the case of waiver,by the party waiving compliance.No waiver by either party of any provision of this Proposal shall be deemed a waiver of any other provision hereof or a waiver of the same provision at any prior or subsequent time. If we are provided oral or written notification to proceed,without first receiving a signed copy of this agreement,it will be mutually understood that both of us will,nonetheless,be contractually bound by this agreement,even in the absence of written acceptance. Avison Young agrees that any non-public information related to Client and City of Boynton Beach or the project hereunder will be the confidential information of Client and City of Boynton Beach and Avison Young will not disclose to any other person or use for any purpose other than as required to perform its obligations hereunder. Entire Agreement This Proposal contains the entire agreement among the Parties with respect to the subject matter of this Proposal and supersedes each course of conduct previously pursued or acquiesced in,and each oral agreement and representation previously made,by the Parties with respect thereto,whether or not relied or acted upon. Counterparts This Proposal may be executed via multiple signed copies delivered by the Parties via e-mail,or any other means permitted under the Electronic Signatures Act. Each such copy will be considered an original and,when fully assembled with the executed counterparts of all other Parties,will be deemed to constitute a fully executed original. Approval&Acceptance By signing below,the signer attests that they have the authority to contractually bind Client and City of Boynton Beach to Avison Young,and certifies that the signer has read and understands all aspects of this agreement. ACKNOWLEDGED AND ACCEPTED BY: Upon written approval by City of Boynton Beach E2L Real Estate Solutions, LLC Avison Young—Florida, LLC By: By: Print Print Name: Mark Hefferin Name: S.Pike Rowley Title: President Title: Managing Director Date: Date: