18-0320_KOSMONT & ASSOCIATES, INC._E8_Agenda Report3/20/2018
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City of San Juan Capistrano
Agenda Report
TO: Honorable Mayor and Members of the City Council
FROM; A(enjamin Siegel, City Manager
SUBMITTED BY: Charlie View, Project Manag r
DATE: March 20, 2018
SUBJECT: Contract with Kosmont Companies for Consulting Services to
Assist with Preparation of a Long -Term Management Agreement
for the Rancho Mission Viejo Riding Park at San Juan
Capistrano; and, Appropriation of Funds
RECOMMENDATION:
1. Approve and authorize the City Manager to execute a contract for consulting
services with Kosmont Companies, in an amount not to exceed $58,500, to
assist staff in negotiating a long-term management agreement for the Riding
Park; and,
2. Appropriate $58,500 from the Eastern Open Space Fund for the proposed
consultant services, to be reimbursed through the future long-term
management agreement.
DISCUSSION/ANALYSIS:
The City's Rancho Mission Viejo Riding Park at San Juan Capistrano (Riding Park) is
located in the area known as the Eastern Open Space, at the southwest corner of
Ortega Highway and Avenida La Pata (Attachment 1). The Eastern Open Space,
including the Riding Park, was purchased from the Rancho Mission Viejo Company
using proceeds from the 2010 Measure Y Open Space Bonds. The Measure Y Open
Space Bonds were issued under IRS tax-exempt bond regulations. The Riding Park
hosts world-renowned equestrian events, soccer tournaments, and other sporting and
community events.
Blenheim Facility Management, LLC (BFM) has operated the Riding Park under
contract with the City since the original purchase of the land from the Rancho Mission
Viejo Company in 2010, and long before the City acquired the Riding Park. On February
7, 2017, the City Council took the first step in addressing options for a long-term
City Council Agenda Report
March 20, 2018
Paqe 2 of 4
management agreement for the Riding Park by authorizing the issuance of taxable
bonds to pay off the tax-exempt bonds on the first date such payment is allowed —
August 1, 2019. On January 16, 2018, the City Council approved an Interim
Management Agreement with BFM to continue operations and management services,
through August 1, 2019. This Interim Management Agreement was prepared with the
assistance of Kosmont Companies and the City Attorney's Office to ensure compliance
with IRS policies and regulations that govern agreements to manage public property
purchased with tax exempt financing.
The Interim Management Agreement provides that the City pay a base management fee
of $750,000 per calendar year to BFM for management of the Riding Park, under the
direction and control of the City. In addition, consistent with the requirement that the City
have direct financial responsibility for operations, the City must also pay for certain
event expenses and operating costs including monthly utility costs. Under the terms of
the Interim Management Agreement, the City receives all revenue produced by Riding
Park events. Based on the initial schedule of events, revenues are projected to be
approximately $1.5 million per calendar year, yielding a net operating profit (revenues
less management fees and expenses) to be retained by the City of approximately
$255,000 per calendar year. The projected revenue is consistent with the amount
received from Riding Park operations under the prior management agreement. These
revenues are collected in the Eastern Open Space Fund and used to pay for Eastern
Open Space maintenance, including maintenance of Reata Park and Event Center.
The proposed contract with Kosmont Companies (Attachment 2) would allow staff to
continue to utilize Kosmont's expertise and experience to assist with the development
and negotiation of a long-term agreement for the Riding Park. The long-term agreement
would be effective August 1, 2019, when the tax exempt bonds can be paid off.
Kosmont Companies provided similar assistance to the City of Norco for the Silverlakes
Sports Complex. Based on their extensive experience in negotiating various real estate
and management agreements, and the firm's direct experience assisting the City with
the Interim Management Agreement, Kosmont Companies is preliminarily
recommending that the scope of services include the use of a Request for
Qualifications/Proposal process. BFM would be included as a candidate in the process.
Kosmont's proposed scope of work includes managing the RFP/RFQ process, assisting
in the identification of the preferred operator and negotiation of the long-term
agreement.
The execution of a long-term management agreement would preserve the Riding Park
as a world-class equestrian event venue. A long-term agreement would also allow the
City to work with the selected company to develop and incorporate a capital investment
program to enhance the overall use of this valuable community asset. The capital
investments could include water quality management improvements and other facilities
to support the continued use of this property for equestrian events, regional soccer
tournaments and other community activities. It is anticipated that the process to
negotiate the long-term agreement will be complete in Spring 2019, with the new
agreement effective August 1, 2019.
City Council Agenda Report
March 20, 2018
Page 3 of 4
FISCAL IMPACT:
The cost of this professional services contract is $58,500 and would be funded by an
appropriation from the Eastern Open Space Fund. These costs may be reimbursed
through the future long-term management agreement.
ENVIRONMENTAL REVIEW:
In accordance with the California Environmental Quality Act (CEQA), the recommended
action is exempt from CEQA per Section 15061(b)(3), the general rule that CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty that there is no possibility that the
activity in question may have a significant effect on the environment, the activity is not
subject to CEQA. Approval of the agreement with Kosmont Companies would not be an
activity with potential to cause significant effect on the environment and therefore is
exempt from CEQA.
PRIOR CITY COUNCIL REVIEW:
• On November 18, 2014, the City Council approved the two-year Management
Agreement with BFM.
• On March 1, 2016, the City Council gave direction to staff to initiate negotiations
with BFM for a new agreement (including the general terms of such
negotiations); and to refer the recreational elements of the Riding Park to the
Parks, Recreation, Senior & Youth Services Commission.
• On February 7, 2017, the City Council authorized the issuance of taxable bonds
to pay off existing tax-exempt bonds on August 1, 2019.
On December 6, 2016, the City Council approved the First Amendment to the
Riding Park Management Agreement.
• On May 16, 2017, the City Council authorized the City Manager to prepare and
execute an amendment to the contract with Kosmont Companies for preparation
of the Interim Management Agreement with BFM.
• On January 16, 2018, the City Council approved the Interim Management
Agreement with BFM for management of operations at the Riding Park.
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS:
Not applicable.
City Council Agenda Report
March 20, 2018
Paae 4 of 4
NOTIFICATION:
Parks, Recreation, Youth and Senior Services, Trails and Equestrian Commission
Blenheim Facility Management, LLC
Kosmont Companies
ATTACHMENTS:
Attachment 1 —Aerial Photo
Attachment 2 — Kosmont Proposal
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ATTACHMENT 1
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ATTACHMENT 1
CITY OF SAN JUAN CAPISTRANO
PROFESSIONAL SERVICES AGREEMENT
This Agreement is made and entered into as of , 20 by and
between the City of San Juan Capistrano, a municipal corporation organized and operating
under the laws of the State of California with its principal place of business at 32400 Paseo
Adelanto, San Juan Capistrano, CA 92675 ("City"), and Kosmont & Associates, Inc., doing
business as Kosmont Companies, a real estate advisory consulting firm with its principal place
of business at 1601 N. Sepulveda Blvd., # 382, Manhattan Beach, CA 90266 (hereinafter
referred to as "Consultant"). City and Consultant are sometimes individually referred to as
"Party" and collectively as "Parties" in this Agreement.
RECITALS
A. City is a public agency of the State of California and is in need of professional
services for real estate and equestrian operation advisory consulting services to the City of San
Juan Capistrano in connection with the review and negotiation of a Management Agreement for
operation of the Rancho Mission Viejo Riding Park.
B. Consultant has the necessary qualifications to provide such services.
C. The Parties desire by this Agreement to establish the terms for City to retain
Consultant to provide the services described herein.
AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
Services.
Consultant shall provide the City with the services described in the Scope of Services
attached hereto as Exhibit "A."
2. Compensation.
a. Subject to paragraph 2(b) below, the City shall pay for such services in
accordance with the Schedule of Charges set forth in Exhibit "A" and "B".
b. In no event shall the total amount paid for services rendered by
Consultant under this Agreement exceed the sum of $58,500, plus reasonable expenses.
Periodic payments shall be made within 30 days of receipt of an invoice which includes a
detailed description of the work performed. Payments to Consultant for work performed will be
made on a monthly billing basis.
3. Additional Work.
If changes in the work seem merited by Consultant or the City, and informal
consultations with the other party indicate that a change is warranted, it shall be processed in
the following manner: a letter outlining the changes shall be forwarded to the City by Consultant
with a statement of estimated changes in fee or time schedule. An amendment to this
Agreement shall be prepared by the City and executed by both Parties before performance of
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ATTACHMENT 2
such services, or the City will not be required to pay for the changes in the scope of work. Such
amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
4. Maintenance of Records.
Books, documents, papers, accounting records, and other evidence pertaining to costs
incurred shall be maintained by Consultant and made available at all reasonable times during
the contract period and for four (4) years from the date of final payment under the contract for
inspection by City.
5. Time of Performance.
Consultant shall perform its services in a prompt and timely manner and shall
commence performance upon receipt of written notice from the City to proceed ("Notice to
Proceed"). Consultant shall complete the services required hereunder within seventeen months
of the execution of the agreement unless extended by written agreement. The Notice to
Proceed shall set forth the date of commencement of work.
6. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for
delays in performance caused by circumstances beyond the reasonable control of the non-
performing party. For purposes of this Agreement, such circumstances include but are not
limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and
other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances;
sabotage or judicial restraint.
b. Should such circumstances occur, the non-performing party shall, within a
reasonable time of being prevented from performing, give written notice to the other party
describing the circumstances preventing continued performance and the efforts being made to
resume performance of this Agreement.
7. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and
regulations of the federal, state and local government, including Cal/OSHA requirements.
b. If required, Consultant shall assist the City, as requested, in obtaining and
maintaining all permits required of Consultant by federal, state and local regulatory agencies.
C. If applicable, Consultant is responsible for all costs of clean up and/ or removal of
hazardous and toxic substances spilled as a result of his or her services or operations
performed under this Agreement.
8. Standard of Care
Consultant's services will be performed in accordance with generally accepted
professional practices and principles and in a manner consistent with the level of care and skill
ordinarily exercised by members of the profession currently practicing under similar conditions.
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9. Assignment and Subconsultant
Consultant shall not assign, sublet, or transfer this Agreement or any rights under or
interest in this Agreement without the written consent of the City, which may be withheld for any
reason. Any attempt to so assign or so transfer without such consent shall be void and without
legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a
provision making them subject to all provisions stipulated in this Agreement. Nothing contained
herein shall prevent Consultant from employing independent associates, and subconsultants as
Consultant may deem appropriate to assist in the performance of services hereunder.
10. Independent Consultant
Consultant is retained as an independent contractor and is not an employee of City. No
employee or agent of Consultant shall become an employee of City. The work to be performed
shall be in accordance with the work described in this Agreement, subject to such directions and
amendments from City as herein provided.
11. Insurance. Consultant shall not commence work for the City until it has provided
evidence satisfactory to the City it has secured all insurance required under this section. In
addition, Consultant shall not allow any subcontractor to commence work on any subcontract
until it has secured all insurance required under this section.
a. Commercial General Liability
(i) The Consultant shall take out and maintain, during the
performance of all work under this Agreement, in amounts not less than specified herein,
Commercial General Liability Insurance, in a form and with insurance companies acceptable to
the City.
(ii) Coverage for Commercial General Liability insurance shall be at
least as broad as the following:
(1) Insurance Services Office Commercial General Liability
coverage (Occurrence Form CG 00 01) or exact equivalent.
for the following:
Commercial General Liability Insurance must include coverage
(1) Bodily Injury and Property Damage
(2) Premises/Operations Liability
(3) Products/Completed Operations Liability
(4) Aggregate Limits that Apply per Project
(5) Contractual Liability with respect to this Contract
(6) Broad Form Property Damage
(7) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or provisions limiting
coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one
insured against another; (3) products/completed operations liability; or (4) contain any other
exclusion contrary to the Agreement.
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M The policy shall give City, its officials, officers, employees,
agents and City designated volunteers additional insured status using ISO endorsement forms
CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(vi) The general liability program may utilize either deductibles or
provide coverage excess of a self-insured retention, subject to written approval by the City, and
provided that such deductibles shall not apply to the City as an additional insured.
b. Automobile Liability
(i) At all times during the performance of the work under this
Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and
property damage including coverage for owned, non -owned and hired vehicles, in a form and
with insurance companies acceptable to the City.
(ii) Coverage for automobile liability insurance shall be at least as
broad as Insurance Services Office Form Number CA 00 01 covering automobile liability
(Coverage Symbol 1, any auto).
(iii) The policy shall give City, its officials, officers, employees, agents
and City designated volunteers additional insured status.
(iv) Subject to written approval by the City, the automobile liability
program may utilize deductibles, provided that such deductibles shall not apply to the City as an
additional insured, but not a self-insured retention.
C. Workers' Compensation/Employer's Liability
(i) Consultant certifies that he/she is aware of the provisions of
Section 3700 of the California Labor Code which requires every employer to be insured against
liability for workers' compensation or to undertake self-insurance in accordance with the
provisions of that code, and he/she will comply with such provisions before commencing work
under this Agreement.
(ii) To the extent Consultant has employees at any time during the
term of this Agreement, at all times during the performance of the work under this Agreement,
the Consultant shall maintain full compensation insurance for all persons employed directly by
him/her to carry out the work contemplated under this Agreement, all in accordance with the
"Workers' Compensation and Insurance Act," Division IV of the Labor Code of the State of
California and any acts amendatory thereof, and Employer's Liability Coverage in amounts
indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the
period required by this Agreement, workers' compensation coverage of the same type and limits
as specified in this section.
d. Professional Liability Errors and Omissions
At all times during the performance of the work under this Agreement the Consultant
shall maintain professional liability or Errors and Omissions insurance appropriate to its
profession, in a form and with insurance companies acceptable to the City and in an amount
indicated herein. This insurance shall be endorsed to include contractual liability applicable to
this Agreement and shall be written on a policy form coverage specifically designed to protect
against acts, errors or omissions of the Consultant. "Covered Professional Services" as
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designated in the policy must specifically include work performed under this Agreement. The
policy must "pay on behalf of the insured and must include a provision establishing the insurer's
duty to defend.
e. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $1,000,000 per occurrence/ $2,000,000 aggregate
for bodily injury, personal injury, and property
damage
Automobile Liability $1,000,000 per occurrence for bodily injury and
property damage
Employer's Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and
omissions)
(ii) Requirements of specific coverage or limits contained in this
section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of
any coverage normally provided by any insurance. Any available coverage shall be provided to
the parties required to be named as Additional Insured pursuant to this Agreement.
Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City
evidence of insurance from an insurer or insurers certifying to the coverage of all insurance
required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer's
equivalent) signed by the insurer's representative and Certificate of Insurance (Acord Form 25-
S or equivalent), together with required endorsements. All evidence of insurance shall be
signed by a properly authorized officer, agent, or qualified representative of the insurer and
shall certify the names of the insured, any additional insureds, where appropriate, the type and
amount of the insurance, the location and operations to which the insurance applies, and the
expiration date of such insurance.
g. Policy Provisions Required
(i) Consultant shall provide the City at least thirty (30) days prior
written notice of cancellation of any policy required by this Agreement, except that the
Consultant shall provide at least ten (10) days prior written notice of cancellation of any such
policy due to non-payment of premium. If any of the required coverage is cancelled or expires
during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including
the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to
the effective date of cancellation or expiration.
(ii) The Commercial General Liability Policy and Automobile Policy
shall each contain a provision stating that Consultant's policy is primary insurance and that any
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insurance, self-insurance or other coverage maintained by the City or any named insureds
shall not be called upon to contribute to any loss.
(iii) The retroactive date (if any) of each policy is to be no later than
the effective date of this Agreement. Consultant shall maintain such coverage continuously for
a period of at least three years after the completion of the work under this Agreement.
Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is
advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed;
or C) if the policy is replaced by another claims -made policy with a retroactive date subsequent
to the effective date of this Agreement.
(iv) All required insurance coverages, except for the professional
liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its
officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or
others providing insurance evidence in compliance with these specifications to waive their right
of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and
shall require similar written express waivers and insurance clauses from each of its
subconsultants.
(v) The limits set forth herein shall apply separately to each insured
against whom claims are made or suits are brought, except with respect to the limits of liability.
Further the limits set forth herein shall not be construed to relieve the Consultant from liability in
excess of such coverage, nor shall it limit the Consultant's indemnification obligations to the
City and shall not preclude the City from taking such other actions available to the City under
other provisions of the Agreement or law.
h. Qualifying Insurers
(i) All policies required shall be issued by acceptable insurance
companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or companies
with a current A.M. Best's rating of no less than A:VII and admitted to transact in the
business of insurance in the State of California, or otherwise allowed to place insurance
through surplus line brokers under applicable provisions of the California Insurance
Code or any federal law.
Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance
coverage to be maintained by Consultant, and any approval of said insurance by the City, is
not intended to and shall not in any manner limit or qualify the liabilities and obligations
otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to,
the provisions concerning indemnification.
(ii) If at any time during the life of the Agreement, any policy of
insurance required under this Agreement does not comply with these specifications or is
canceled and not replaced, City has the right but not the duty to obtain the insurance it deems
necessary and any premium paid by City will be promptly reimbursed by Consultant or City will
withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City
may cancel this Agreement.
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(iii) The City may require the Consultant to provide complete copies of
all insurance policies in effect for the duration of the Project.
(iv) Neither the City nor any of its officials, officers, employees, agents
or volunteers shall be personally responsible for any liability arising under or by virtue of this
Agreement.
j. Subconsultant Insurance Requirements. Consultant shall not allow any
subcontractors or subconsultants to commence work on any subcontract until they have
provided evidence satisfactory to the City that they have secured all insurance required under
this section. Policies of commercial general liability insurance provided by such subcontractors
or subconsultants shall be endorsed to name the City as an additional insured using ISO form
CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by
Consultant, City may approve different scopes or minimum limits of insurance for particular
subcontractors or subconsultants.
12. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend (with
counsel reasonably approved by the City), indemnify and hold the City, its officials, officers,
employees, agents and volunteers free and harmless from any and all claims, demands, causes
of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees,
settlements, loss, damage or injury of any kind, in law or equity, to property or persons,
including wrongful death, (collectively, "Claims') in any manner arising out of, pertaining to, or
incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials,
officers, employees, subcontractors, consultants or agents in connection with the performance
of the Consultant's services, or this Agreement, including without limitation the payment of all
consequential damages, expert witness fees and attorneys' fees and other related costs and
expenses. Notwithstanding the foregoing, to the extent Consultant's services are subject to
Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil
Code Section 2782.8, to Claims that arise out of, pertain to, or relate to the negligence,
recklessness, or willful misconduct of the Consultant. Consultant's obligation to indemnify shall
not be restricted to insurance proceeds, if any, received by the City, its officials, officers,
employees, agents or volunteers; including the payment of consequential damages, expert
witness fees and attorney's fees and other related costs and expenses.
13. California Labor Code Requirements.
a. Consultant is aware of the requirements of California Labor Code
Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and
the performance of other requirements on certain "public works" and "maintenance" projects. If
the services are being performed as part of an applicable "public works" or "maintenance"
project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or
more, Consultant agrees to fully comply with such Prevailing Wage Laws, if applicable.
Consultant shall defend, indemnify and hold the City, its officials, officers, employees and
agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of
any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory
upon the Consultant and all subconsultants to comply with all California Labor Code provisions,
which include but are not limited to prevailing wages, employment of apprentices, hours of labor
and debarment of contractors and subcontractors.
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14. Verification of Employment Eligibility -
By executing this Agreement, Consultant verifies that it fully complies with all
requirements and restrictions of state and federal law respecting the employment of
undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of
1986, as may be amended from time to time, and shall require all subconsultants and sub-
subconsultants to comply with the same.
15. Laws and Venue.
This Agreement shall be interpreted in accordance with the laws of the State of
California. If any action is brought to interpret or enforce any term of this Agreement, the action
shall be brought in a state or federal court situated in the County of Orange, State of California.
16 Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work
under this Agreement by giving ten (10) calendar days written notice to Consultant. In such
event, City shall be immediately given title and possession to all original field notes, drawings
and specifications, written reports and other documents produced or developed for that portion
of the work completed and/or being abandoned. City shall pay Consultant the reasonable value
of services rendered for any portion of the work completed prior to termination. If said
termination occurs prior to completion of any task for the Project for which a payment request
has not been received, the charge for services performed during such task shall be the
reasonable value of such services, based on an amount mutually agreed to by City and
Consultant of the portion of such task completed but not paid prior to said termination. City shall
not be liable for any costs other than the charges or portions thereof which are specified herein.
Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to
damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under
this Agreement upon thirty (30) calendar days' written notice to City only in the event of
substantial failure by City to perform in accordance with the terms of this Agreement through no
fault of Consultant.
17 Documents. Except as otherwise provided in "Termination or Abandonment,"
above, all original field notes, written reports, Drawings and Specifications and other
documents, produced or developed for the Project shall, upon payment in full for the services
described in this Agreement, be furnished to and become the property of the City.
18. Organization
Consultant shall assign Wil Soholt as Project Manager as Project Manager. The Project
Manager shall not be removed from the Project or reassigned without the prior written consent
of the City.
19. Limitation} of Agreement.
This Agreement is limited to and includes only the work included in the Project described
above.
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20. Notice
Any notice or instrument required to be given or delivered by this Agreement may be
given or delivered by depositing the same in any United States Post Office, certified mail, return
receipt requested, postage prepaid, addressed to:
CITY:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Charlie View, Project Manager
and shall be effective upon receipt thereof.
21. Third Party Rights
CONSULTANT:
Kosmont & Associates, Inc.
1601 N. Sepulveda Blvd. #382
Manhattan Beach, CA 900266
Attn: Larry Kosmont, President and CEO
Nothing in this Agreement shall be construed to give any rights or benefits to anyone
other than the City and the Consultant.
22. Equal Opportunity Employment.
Consultant represents that it is an equal opportunity employer and that it shall not
discriminate against any employee or applicant for employment because of race, religion, color,
national origin, ancestry, sex, age or other interests protected by the State or Federal
Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to
initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff
or termination.
23. Entire Agreement
This Agreement, with its exhibits, represents the entire understanding of City and
Consultant as to those matters contained herein, and supersedes and cancels any prior or
contemporaneous oral or written understanding, promises or representations with respect to
those matters covered hereunder. Each party acknowledges that no representations,
inducements, promises or agreements have been made by any person which are not
incorporated herein, and that any other agreements shall be void. This Agreement may not be
modified or altered except in writing signed by both Parties hereto. This is an integrated
Agreement.
24. Severability
The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not
render the provisions unenforceable, invalid or illegal.
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25. Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the successors in
interest, executors, administrators and assigns of each party to this Agreement. However,
Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights,
burdens, duties or obligations without the prior written consent of City. Any attempted
assignment without such consent shall be invalid and void.
26. Non -Waiver
None of the provisions of this Agreement shall be considered waived by either party,
unless such waiver is specifically specified in writing.
27. Time of Essence
Time is of the essence for each and every provision of this Agreement.
28. City's Right to Employ Other Consultants
City reserves its right to employ other consultants, including engineers, in connection
with this Project or other projects.
29. Prohibited Interests
Consultant maintains and warrants that it has not employed nor retained any company
or person, other than a bona fide employee working solely for Consultant, to solicit or secure
this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any
company or person, other than a bona fide employee working solely for Consultant, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting
from the award or making of this Agreement. For breach or violation of this warranty, City shall
have the right to rescind this Agreement without liability. For the term of this Agreement, no
director, official, officer or employee of City, during the term of his or her service with City, shall
have any direct interest in this Agreement, or obtain any present or anticipated material benefit
arising therefrom.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND KOSMONT & ASSOCIATES, INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
CITY OF SAN JUAN CAPISTRANO KOSMONT & ASSOCIATES, INC.
By: By:
Benjamin Siegel
City Manager Its:
ATTEST:
0
Maria Morris, City Clerk
APPROVED AS TO FORM:
M
Jeffrey Ballinger, City Attorney
Printed Name:
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61147.02100\ 10974777.1
ISOSMA017
companicw
March 12, 2018
Charlie View
Development Services Director
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Re: Proposal for Services for RMVRP RFQ/P and Agreement Negotiation
Dear Mr. View:
Kosmont & Associates, Inc. doing business as Kosmont Companies ("Consultant" or
"Kosmont") is pleased to present this proposal for real estate advisory consulting services
to the City of San Juan Capistrano ("Client", "City") in connection with the preparation of a
Request for Qualifications / Proposals ("RFQ/P") to identify a potential manager, lessee
and/or operator (collectively "Operator") of the Rancho Mission Viejo Riding Park
("RMVRP") and negotiation with the same regarding a long term agreement to operate the
RMVRP.
This proposal serves as an Agreement when executed and returned by Client to Kosmont.
I. BACKGROUND AND OBJECTIVE
The City owns the RMVRP and is interested in completing a RFQ/P to identify a potential
Operator of the RMVRP with whom it may enter into a long-term agreement to operate the
RMVRP. Client desires Consultant's assistance in preparing and coordinating the RFQ/P
and negotiating with an identified Operator to effectuate a long-term agreement to operate
the RMVRP.
II. SCOPE OF SERVICES
The major tasks to be performed by Consultant that will comprise this assignment are
described as follows:
Task 1: RFQ/P Process
With Client's direction and input, Consultant will draft, release and manage a RFQ/P
process to solicit qualification packages and proposals from potential Operators of the
RMVRP. Consultant will release the RFQ/P to a list of potential Operators mutually agreed
upon by City staff and Consultant.
Once the responses to the RFQ/P are received, Consultant will evaluate up to ten (10)
qualification packages (unless otherwise modified as mutually agreed). Consultant will
1601 N Sepulveda Blvd #382. Manhattan Beach. CA 90266 1 ph 424 297.1070 1 www kosmont.com
EXHIBIT A
City of San Juan Capistrano
Proposal for Services — RMVRP RFQ/P & Negotiation
March 12, 2018
Page 2 of 8
discuss and evaluate qualification packages with the City, and assist in the identification
of a preferred Operator(s).
Consultant anticipates that this process will include in person interviews of a short list of
prospective Operators. As part of this task Consultant will coordinate and attend one (1)
business day of meetings with prospective Operators as part of the selection process in
order to choose a preferred Operator with whom to negotiate. As part of this task
Consultant also contemplates the participation in two (2) informational meetings at the
City, and one (1) publicly noticed meeting at which the City may select a preferred
Operator with whom it will negotiate a long-term agreement.
Task 2: Assistance in Negotiating Long -Term Agreement
Consultant will assist Client in the initial negotiation of a long-term agreement with the
preferred Operator to operate the RMVRP. Consultant will work with, but rely on Client's
legal counsel to draft the long-term agreement pursuant to the terms negotiated and
agreed upon by the City and preferred Operator. Kosmont anticipates that a ground lease
may be utilized for the long-term agreement. As part of this task Consultant will coordinate
and attend up to three (3) in person meetings with City staff and the prospective Operator.
As part of this task Consultant also contemplates the participation in one (1) publicly
noticed meeting at which the City may enter into a long-term agreement with the preferred
Operator.
Task 3: Attendance at Additional Public Meeting
At the City's direction Consultant will attend one (1) additional publicly noticed meeting in
association with either Task 1 or Task 2.
Task 4: As Needed Services
Consultant is available to provide additional as -needed real estate advisory services as
desired by Client and mutually agreed upon by Consultant so long as the compensation
does not exceed the total compensation identified in this agreement.
III. SCHEDULE
Consultant is prepared to commence work upon receipt of executed Agreement.
IV. COMPENSATION
Compensation for Tasks 1 through 4 is estimated at $58,500 for professional services
(hourly) fees at Consultant's billing rates as shown on Attachment A. Future increases in
budget will require approval by Client in advance. Budget may be increased by Client at
any time.
KOSMONT COMPANIES
1601 N Sepulveda Blvd #382, Manhattan Beach, CA 90266 1 ph 424 297.1070 1 www kosmont com
City of San Juan Capistrano
Proposal for Services — RMVRP RFQ/P & Negotiation
March 12, 2018
Page 8 of 8
ATTACHMENT A
Kosmont Companies
2018 Public Agency Fee Schedule
Professional Services
President & CEO
Executive Vice President
Partner/Senior Vice President/Senior Consultant
Vice President/Associate
Project Analyst/Project Research
Assistant Project Analyst/Assistant Project Manager
GIS Mapping/Graphics Service
Clerical Support
Additional Expenses
In addition to professional services (labor fees):
$345.00/hour
$325.00/hour
$305.00/hour
$195.00/hour
$165.00/hour
$125.00/hour
$ 95.00/hour
$ 60.00/hour
1) An administrative fee for in-house copy, fax, phone and postage costs will be
charged, which will be computed at four percent (4.0 %) of monthly Kosmont
Companies professional service fees incurred; plus
2) Out-of-pocket expenditures, such as travel and mileage, professional printing,
and delivery charges for messenger and overnight packages will be charged at
cost.
3) If Kosmont retains Third Party Vendor(s) for Client (with Client's advance
approval), fees and cost will be billed to Client at 1.1X (times) fees and costs.
4) Consultant's attendance or participation at any public meeting requested by
Client will be billed at the professional services (hourly) fees as shown on this
Attachment A.
Charges for Court/De osition/Ex ert Witness -Related Appearances
Court -related (non -preparation) activities, such as court appearances, depositions,
mediation, arbitration, dispute resolution and other expert witness activities, will be
charged at a court rate of 1.5 times scheduled rates, with a 4 -hour minimum.
Rates shall remain in effect until December 31, 2018.
KOSMONT COMPANIES
1601 N Sepulveda Blvd #382, Manhattan Beach, CA 90266 1 ph 424 297 1070 1 www kosmont com
EXHIBIT B