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
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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.
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(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.
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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
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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.
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(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.
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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.
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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: 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]
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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'•
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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