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16-1201_KOSMONT & ASSOCIATES, INC_Professional Services AgreementCITY OF SAN JUAN CAPISTRANO PROFESSIONAL SERVICES AGREEMENT This Agreement is made and entered into as ofn1(YIIGQr 1 , 20 lQ 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 the operation of the Rancho Mission Viejo Riding Park, S. 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". 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" page 2. b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of $25,000, plus reasonable expenses. Fees incurred to cover all printing and related costs, shall not exceed $2,000. 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 1 61147.02 1 0011 0974777.1 Agreement shall be prepared by the City and executed by both Parties before performance of 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 twelve 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. 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. Compliance with Law. a. Consultant shall comply with alf applicable laws, ordinances, codes and regulations of the federal, state and local government, including CaIIOSHA 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. 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. 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 61147.02;00%10974777.1 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. 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. (iii) Commercial General Liability Insurance must include coverage for the following: (1) Bodily Injury and Property Damage (2) Premises/Operations Liability (3) Products/Completed Operations Liability (4) Aggregate Limits that Apply per Project (6) Contractual Liability with respect to this Contract (6) Broad Form Property Damage (7) independent Consultants Coverage (iv) The policy shalt 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. (v) 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. 3 61147.021000 077747721 (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. 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. 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. 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 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. 4 61147.02100\10974777.1 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. 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. (li) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant's policy is primary insurance and that any 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 5 6114? 021 =10974777.1 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. Qualifvinci 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 ANN 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. (iii) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of Consultants services under this Agreement. 6 61147.0210Q\10974777.1 (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 be restricted to insurance proceeds, if any, received by the City, its officials, 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 Reguirejnents. 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. 7 61147.02100110974777.1 14. Verification of Employment Eliclibility. 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. 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. 8 61147.02100\10974777.1 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: Charles View, City Managers Dept. and shall be effective upon receipt thereof. 21. Third Party Rights CONSULTANT: Kosmont & Associates, Inc. 1601 N. Sepulveda Blvd. # 382 Manhattan Beach, CA 90266 Attn: Larry Kosmcnt, 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. 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, 6114T02100\1 047477 7.1 burdens, duties or obligations without the prior written oonsent 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 Riaht 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] 10 61147.02100110974777.1 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 By: �:// — e jam' gel City Mdrrager ATTEST: By. (I ��r� - Maria Morri , C Clrerk APPROVED AS TO FORM: By: I effrey Balling r, City Attorney KOSMONT & ASSOCIATES, INC. i By. Its: P -e_ c=am, ff Printed Name: l.AK�i'• 11 61147.02 1 00\ 10974777.1 Charlie View Development Services Director City of San Juan Capistrano 32400 Paseo Adeianto San Juan Capistrano, CA 92675 Re: Proposal for Real Estate Advisory Services for Riding Park Management Agreement 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 review and negotiation of a Management Agreement ("Project") for the operation of the Rancho Mission Viejo Riding Park and potentially an additional, to be identified site in the City. As part of the completion of this assignment Kosmont will retain specialized equestrian subconsultants William Chambers and George Chatigny. This proposal serves as an Agreement when executed and returned by Client to Kosmont. L BACKGROUND AND OBJECTIVE Client is in the process of negotiating the Management Agreement, and desires Consultant's assistance in reviewing the Management Agreement and negotiating terms and conditions contained therein. Il. SCOPE OF SERVICES Consultant will assist Client in the review of the Management Agreement and negotiating term and conditions contained therein. The major tasks to be performed by Consultant that will comprise this assignment are described as follows: Task 1: Review of Project Background Materials and Management Agreement Consultant will review the history of the Rancho Mission Viejo Riding Park and current and/or prior drafts of the Management Agreement to develop an understanding of the key issues that should be addressed in the Management Agreement. 1601 N. Sepulveda Blvd. #382, Manhattan Beach, CA 90266 t ph 424.456.3088 t www.kosmont.com EXHIBIT A City of San Juan Capistrano Proposal for Services September 19, 2016 Page 2 of 8 Task 2: Evaluation of Required Terms and Conditions Consultant will complete an evaluation of pertinent terms and conditions that the Management Agreement may be required to comply with, including permitted uses of tax- exempt financing, general public financing guidelines, and compliance with prior agreements related to the Purchase and Sale of the underlying properties. As Consultant is not a law firm, and cannot and does not provide legal advice, Consultant may discuss and require legal interpretations and opinions from the City Attorney's Office as appropriate. Task 3: Evaluation of Financial Terms and Conditions Consultant will evaluate financial terms and conditions of the Management Agreement and provide its conclusion as to the reasonableness of the financial benefits conferred to the City and the operator under the Management Agreement. Task 4: Negotiation Assistance Consultant will assist Client in the negotiation of the Management Agreement. Optional Task 5: As -Needed Services Consultant will provide other as -needed real estate advisory services as requested by Client, and mutually agreed upon by Consultant. Ill. SCHEDULE AND REQUIRED DATA Consultant is prepared to commence work upon receipt of executed Agreement. Client will provide Consultant with all existing project data including a current draft of the Management Agreement and any other relevant background materials. IV. COMPENSATION Compensation for Tasks 1 through 4 is initially estimated at $25,000 for professional services (hourly) fees at Consultant's billing rates as shown on Attachment A. Given the fluid nature of negotiations, compensation could ultimately be less or more than this amount. Future increases in budget will require approval by Client in advance. Budget may be increased by Client at any time. Compensation for Optional Task 5 is on a time and materials basis with Client's advance approval. Services will be invoiced monthly at Consultant's standard billing rates, as shown on Attachment A. In addition to professional services (hourly) fees, invoices will include reimbursement for out-of-pocket expenses such as travel and mileage (provided that there shall be no overnight travel without the Client's prior approval and that mileage shall be reimbursed at Kosmont's normal mileage reimbursement rate of 54 cents per mile), professional printing, conference calls, and delivery charges for messenger and overnight packages at actual cost. Unless otherwise agreed to in advance, out -of -area travel, if any, requires advance funding of flights and hotel accommodations. Consultant will also include in each invoice an administrative services fee to cover in- house copy, fax, telephone and postage costs equal to four percent (4.0%) of Consultant's KOSMONT COMPANIES 1601 N. Sepulveda Blvd. #382, Manhattan Beach, CA 90266 1 ph 424 456.3088 1 www.kosmont.com City of San Juan Capistrano Proposal for Services September 19, 2016 Page 3 of 8 monthly professional service fees incurred. Any unpaid invoices after 30 days shall accrue interest at the rate of 10% per annum. Consultant is prepared to commence work upon receipt of executed Agreement. DISCLOSURE: Kosmont Transactions Services("KTS"} and Kosmont Realty Corporation ("KRC"): Compensation for possible future transaction -based services or brokerage services. The following is being provided solely as an advance disclosure of possible real estate brokerage and finance services and potential compensation formats for such services. This disclosure is not intended to commit the Client. When public agency assignments involve real estate/property brokerage or public financing transactions on behalf of the public agency, such transaction based services are typically provided by Kosmont Transactions Services ("KTS") or Kosmont Realty Corporation ("KRC'). KRC is currently registered with the Securities and Exchange Commission and the Municipal Securities Rulemaking Board as a Municipal Advisor. KRC is licensed by the CA Bureau of Real Estate (License #01770428) and is certified as a Minority Business Enterprise (MBE). KRC is also registered as doing business as KTS. KTS provides transactional Financial Advisory Services and compensation is typically for financial advisory/loan broker services. KRC provides Brokerage Services and compensation is typically for brokerage commissions such as property and lease transactions and/or success/broker fees. KRC also provides Broker Opinions of Value (BOV) services on a fixed fee basis. V. OTHER PROVISIONS A. Termination. Client or Consultant shall have the right to terminate this Agreement at any time upon written notification to the other party. Payment for fees accrued through the date of termination shall be remitted in full. B. Arbitration. Any controversy or claim arising out of or in relation to this Agreement, or the making, performance, interpretation or breach thereof, shall be settled by arbitration at JAMS in Los Angeles, California. Each of the parties to such arbitration proceeding shall be entitled to take up to five depositions with document requests. The provisions of Section 1283.05 (except subdivision (e) thereof) of the California Code of Civil Procedure are incorporated by reference herein, except to the extent they conflict with this Agreement, in which case this Agreement is controlling. If the matter is heard by only one arbitrator, such arbitrator shall be a member of the State Bar of California or a retired judge. If the matter is heard by an arbitration panel, at least one member of such panel shall be a member of the State Bar of California or a retired judge. The arbitrator or arbitrators shall decide all questions of law, and all mixed questions of law and fact, in KOSMONT COMPANIES 1601 N Sepulveda Blvd. #382, Manhattan Beach, CA 90266 1 ph 424.456.3088 1 www.kosmont.com City of San Juan Capistrano Proposal for Services September 19, 2016 Page 4 of 8 accordance with the substantive law of the State of California to the end that all rights and defenses which either party may have asserted in a court of competent jurisdiction shall be fully available to such party in the arbitration proceeding contemplated hereby. The arbitrator and arbitrators shall set forth and deliver their findings of fact and conclusions of law with the delivery of the arbitration award. Judgment upon the award rendered shall be final and non -appealable and may be entered in any court having jurisdiction. C. Attorneys' Fees. In the event of any legal action, arbitration, or proceeding arising out of an alleged breach of this Agreement, the party prevailing in such legal action, arbitration, or proceeding shall be entitled to recover reasonable attorneys' fees, expenses and costs, as well as all actual attorneys' fees, expenses and cost incurred in enforcing any judgment entered. D. Authority. Each of the parties executing this Agreement warrants that persons duly authorized to bind each such party to its terms execute this Agreement. E. Further Actions. The parties agree to execute such additional documents and take such further actions as may be necessary to carry out the provisions and intent of this Agreement. F. Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party without the prior written consent of the other party. G. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. H. Entire Agreement; Amendments and Waivers. This Agreement contains the entire agreement between the parties relating to the transactions contemplated hereby and any and all prior discussions, negotiations, commitments and understanding, whether written or oral, related hereto are superseded hereby. No addition or modification of any term or provision of this Agreement shall be effective unless set forth in writing signed by both parties. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver of such provisions unless otherwise expressly provided. Each party to this Agreement has participated in its drafting and, therefore, ambiguities in this Agreement will not be construed against any party to this Agreement. I. Severability. If any term or provision of this Agreement shall be deemed invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each remaining term and provision of this Agreement shall be valid and in force to the fullest extent permitted by law. J. Notices. All notices, requests, demands and other communications which may be required under this Agreement shall be in writing and shall be deemed to have been received when transmitted; if personally delivered, if transmitted by telecopier, electronic or digital transmission method, upon transmission; if sent by next day delivery to a domestic address by a recognized overnight delivery service (e.g., Federal Express), the KOSMONT COMPANIES 1601 N Sepulveda Blvd. #382, Manhattan Beach, CA 90266 1 ph 424.456.3088 1 www kosmont corn City of San Juan Capistrano Proposal for Services September 19, 2018 Page 5 of 8 day after it is sent; and if sent by certified or registered mail, return receipt requested, upon receipt. In each case, notice shall be sent to the principal place of business of the respective party. Either party may change its address by giving written notice thereof to the other in accordance with the provisions of this paragraph. K. Titles and Captions. Titles and captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision herein. L. Governing Law. The statutory, administrative and judicial law of the State of California (without reference to choice of law provisions of California law) shall govern the execution and performance of this Agreement. M. Confidentiality. Each of the parties agrees not to disclose this Agreement or any information concerning this Agreement to any persons or entities, other than to their attorneys and accountants, or as otherwise may be required by law. N. Counterparts. This Agreement may be executed in one or more counterparts, each of which constitutes an original, and all of which together constitute one and the same instrument. The signature of any person on a telecopy of this Agreement, or any notice, action or consent taken pursuant to this Agreement shall have the same full force and effect as such person's original signature. O. Disclaimer. Consultant's financial analysis activities and work product, which may include but is not limited to pro forma analysis and tax projections, are projections only. Actual results may differ materially from those expressed in the analysis performed by Consultant due to the integrity of data received, market conditions, economic events and conditions, and a variety of factors that could materially affect the data and conclusions. Client's reliance on Consultant's analysis must consider the foregoing. Consultant services outlined and described herein are advisory services only. Any decisions or actions taken or not taken by Client and affiliates, are deemed to be based on Client's understanding and by execution of this Agreement, acknowledgement that Consultant's services are advisory only and as such, cannot be relied on as to the results, performance and conclusions of any investment or project that Client may or may not undertake as related to the services provided including any verbal or written communications by and between the Client and Consultant. Client acknowledges that Consultant's use of work product is limited to the purposes contemplated within this Agreement. Consultant makes no representation of the work product's application to, or suitability for use in, circumstances not contemplated by the scope of work under this Agreement. P. Limitation of Damages. In the event Consultant is found liable for any violation of duty, whether in tort or in contract, damages shall be limited to the amount Consultant has received from Client. KOSMONT COMPANIES 1601 N. Sepulveda Blvd #382, Manhattan Beach, CA 90266 1 ph 424.456.3088 1 warv.kosmont cam City of San Juan Capistrano Proposal for Services September 19, 2016 Page 6 of 8 Q. Expiration of Proposal for Services. If this Agreement is not fully executed by the parties within thirty (30) days from the date of this letter, this proposal shall expire. R. Not an agreement for Legal Services or Legal Advice. This Agreement does not constitute an agreement for the performance of legal services or the provision of legal advice, or legal opinion. Client should seek independent legal counsel on matters for which Client is seeking legal advice. [ signature page follows ] KOSMONT COMPANIES 1601 N. Sepulveda Blvd. #382, Manhattan Beach, CA 90266 1 ph 424,456,3088 1 www kosmont.com City of San Juan Capistrano Proposal for Services September 19, 2016 Page 7 of 8 VI. ACCEPTANCE AND AUTHORIZATION If this Agreement is acceptable to Client, please execute two copies of the Agreement and return both originals to Kosmont Companies. Upon receipt of both signed contracts, we will return one fully executed original for your files. Kosmont will commence work upon receipt of executed Agreement. Read, understood, and agreed to this Day of 2016 City of San Juan Capistrano Kosmont & Associates, Inc. doing business as "Kosmont Companies" By: — Name: Its: By: (Signature) (Signature) Name: Larry J. Kosmont, CRE"I (Print Name) Its: President & CEO (Title) KOSMONT COMPANIES 1501 N. Sepulveda Blvd. #382, Manhattan Beach, CA 90266 1 ph 424 456.3086 1 www.kosmont com City of San Juan Capistrano Proposaf for Services September 19, 2016 Page 8 of 8 ATTACHMENT A Kosmont Companies 2016 Public Agency Fee Schedule Professional Services President & CEO $305.00/hour Executive Vice President $290.00/hour Partner/Senior Vice President/Senior Consultant $275.00/hour Vice President/Associate $195.00/hour Project Analyst/Project Research $165.00/hour Assistant Project Analyst/Assistant Project Manager $125.00/hour GIS Mapping/Graphics Service $ 95.00/hour Clerical Support $ 60.00/hour • Additional Expenses In addition to professional services (labor fees): 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/Deposition/Expert 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, 2017. KOSMONT COMPANIES 1601 N, Sepulveda Blvd. #382, Manhattan Beach, CA 90266 1 ph 424.456.3088 1 tiw w.kosmont.com WILLIAM R. CHAMBERS 8565 Patuxent Avenue Broomes Island, MD 20615 443-295-5685 / wrc96 _yahoo,com Experienced executive with thirty-five years of high level organizational management expertise. Proven leadership and collaboration skills able to initiate and manage large multi-level programs utilizing public/private partnerships. EXECUTIVE DIRECTOR Arts Council of Calvert County — February 2012 to present • Manage multi program County Arts Council including a regional art gallery, State and County grants program and arts related educational workshops. • Supervise one part time employee and one contract employee. • Direct and develop sponsorship activities. • Direct media outreach and marketing Initiatives, • Manage all financial operations, artist contracts and vendor agreements. • Work with a ten member Board of Directors GENERAL MANAGER The Show Place Arena and Prince George's Equestrian Center - 1979 to 2011 • Managed 6,000 seat sports and entertainment Arena. Managed 130 acre Equine Center. • Managed annual budget of 3.5 million dollars and a staff of 150 employees. • Booked, contracted and managed 275 Arena and Equine events annually attracting over 350,000 patrons per year. • Directed all facility capital projects. • Worked directly with Federal, State and County government agencies on large scale meeting, conferences and military functions at Arena. • Directed all facility marketing, public relations and community outreach projects including all media contacts. Corresponded regularly with regional news media regarding programs and events of local, regional and National significance. • Directed all facility publications ranging from facility spec documents, client outreach published materials, monthly newsletter ( Front Row ) with over 5,000 subscribers and provided venue generated drop in printed articles for Washington -Baltimore media outlets. • Worked as the venue liaison and contact with all media, local and State government agencies as well as the facility representative to State and local elected officials. a Worked directly National and International governing bodies including; International Olympic Committee, United States Olympic Committee, United States Tennis Association, United States Equestrian Federation, National Collegiate Athletic Association, United States Dressage Federation, Colonial Athletic Association, Atlantic 10 Conference, Patriot League. • Facility received the Prime Site Award 2004 through 2010 Business and Organizational Leadership Positions: • Past Vice President, Calvert County Board of Education • Chairman of the Board, United States League of Agricultural and Equine Centers Eighty members in three countries. Chairman of the Board from 2004 to 2012. Led nine Member Board and two staff positions. Led Finance Committee, Sponsorship Committee and Bylaws Committee. • Past President, Arts Council of Calvert County 2008-2012. Led seven Member Board of Directors and two staff members. • Past Chairman of the Board, Baltimore -Washington Corridor Chamber of Commerce 2004-2005 and 2009-2010, Led 600 Member Chamber and 28 Member Board. Led Finance Committee, Sponsorship Committee and Legislative Affairs Committee. • Past Chairman of the Board, Calvert County Chamber of Commerce 2001-2003 and 2009 Led 400 Member Chamber and Board of Directors. Led Executive Committee, Golf Committee, worked on Government Affairs committee, various event committees. • Past President, Prince George's County Conference and Visitors Bureau President 2005 to 2011. Led twenty-two Member Board of Directors. Led Legislative Committee, Event Sponsorship Committee, Membership recruitment Board. • Past Chairman, Maryland Chamber of Commerce Health Care Task Force 2004 — 2011. Led Forty Member Committee. Worked on and testified in Annapolis on healthcare legislation and regulations State wide. • Past Chairman, ARC of Southern Maryland Capital Campaign • Past Vice -President, Friends of Jefferson Patterson Park and Museum • Past President, Calvert County Board of Education Education BA Sociology, University of Maryland, College Park, MD 1979 BA Criminology, University of Maryland, College Park, MD 1979 Volunteer Work • Calvert Healthcare Solutions • Skateboard Ministry, St. Paul United Methodist Church, Lusby,MD • SHARE Food Pantry Program, Calvert County End Hunger In Calvert County • Maryland Poetry Out Loud Program • The ARC of Southern Maryland • Calvert Nature Society References available upon request