HomeMy WebLinkAbout25B - AGMT - REAL ESTATE ADVISORY SRVS201 w third street
201 west third street
201 w 3rd street
201 w 3rd st
3rd and broadway
third and broadway
3rd & broadway
third & broadway
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
AUGUST 5, 2014
TITLE:
AGREEMENT FOR DEVELOPMENT AND
REAL ESTATE ADVISORY SERVICES
WITH KOSMONT COMPANIES FOR
PROJECTS LOCATED AT 1660 EAST
FIRST STREET AND 201 WEST THIRD
STREET
c
CITY MANAGE
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
❑ As Recommended
❑ As Amended
❑ Ordinance on 16' Reading
❑ Ordinance on 2 r Reading
❑ Implementing Resolution
❑ Set Public Hearing For,_
CONTINUED TO
FILE NUMBER
Authorize the City Manager and the Clerk of the Council to execute the attached agreement
with Kosmont Companies in an amount
an option to renew for an additional year
City Manager and City Attorney.
DISCUSSION
not to exceed $60,000, for a period of two years with
, subject to non - substantive changes approved by the
As the City continues to move forward on two large joint- venture development opportunities at
the Elks Lodge Site (1660 East First Street) and the 3rd and Broadway parking structure (201
West Third Street) it is critical that staffing for these projects be available to support this effort.
With the loss of key staff with expertise in development/project management, there is a need to
fill that void on a temporary basis with consultant services so the City can continue its momentum
in developing these significant projects.
Kosmont Companies will provide expertise and advisory consulting services for the completion of
a preliminary highest and best use analysis and entitlement constraints assessment for the Elks
Lodge site in conjunction with surrounding properties such as the Santa Ana Zoo site. The
proposal also includes an analysis of the re -use and development potential for the City's parking
structure located on 3rd Street and Broadway in the City's downtown. Consulting services and
deliverables will include: Site and local area analysis, market analysis, highest and best use
analysis, assistance with negotiations and financial analysis.
Kosmont Companies has the requisite specialized skills and is a nationally recognized expert in
the area of financial advisory, economic development services and real estate development
projects involving government and private sector partnerships.
2513-1
Kosmont Companies Agreement
August 5, 2014
Page 2
The recommended agreement with Kosmont Companies is exempt from the requirement for
competitive bidding through an open market purchase by Section 2 -807 of the Santa Ana
Municipal Code which allows contracts for professional services to be sole sourced.
STRATEGIC PLAN ALIGNMENT
Approval of this item supports the City's efforts to meet Goal #3 Economic Development,
Objective #5 (Leverage private investment that results in tax base expansion and job creation
citywide), Strategy A (Identify and market underutilized properties (city and non -city owned) for
new development that will create new jobs and expand the City's tax base (e.g. YMCA, 3rd and
Broadway parking structure, Saddleback Inn site).
FISCAL IMPACT
Funds in the amount of $60,000 are budgeted and available in the City Manager's General Non -
department fund account (no. 01105015- 62300).
APPROVED AS TO FUNDS AND ACCOUNTS:
Karen za Francisco Gutierrez
Interim rxecutive Director Executive Director d Building Agency Finance and Management Services
MF: MF /RFCA — Kosmont Companies — 1660 E. First Street and 201 W. Third Street
Exhibit 1: Agreement with Kosmont Companies
25B -2
CONSULTANT AGREEMENT
THIS AGREEMENT made and entered into this _ day of 2014 by and
between KOSMONT & ASSOCIATES, INC., doing business as KOSMONT COMPANIES, a
California corporation (hereinafter "Consultant "), and the CITY OF SANTA ANA, a charter city
and municipal corporation organized and existing under the Constitution and laws of the State of
California (hereinafter "City ").
RECITALS
A. The City desires to retain a consultant having special skill and knowledge in the field of
real estate, economic development, and financial analysis advisory services.
B. Consultant represents that Consultant is able and willing to provide such services to the
City.
C. In undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows:
I. SCOPE OF SERVICES
Consultant shall provide site and local area analysis, market analysis, highest and best use
analysis, assistance with negotiations and financial analysis, as set forth in Exhibit A, attached
hereto and incorporated herein by this reference,
Consultant shall deliver to City all work product resulting from the services provided.
Said work product shall be submitted in a hard copy and in a form compatible with City's
computer system, as agreed between the Executive Director and Consultant.
In regard to copyrightable material produced as a deliverable under this Agreement,
including but not limited to books, reports, plans, photographs, drawings and computer
programs, Consultant agrees and shall ensure that all of Consultant's affected officers,
employees, agents, contractors, and volunteer workers agree that (a) other such material may not
be copyrighted without prior review from the City, and (b) the authors of all such material,
whether copyrighted or not, award to the City, and to its officers, agents and employees acting
within the scope of their official duties, as a condition of payment to the Consultant, a royalty.
free, nonexclusive, irrevocable license throughout the world for governmental purposes to
disclose, publish, translate, reproduce, and use such materials.
EXHIBIT 1
25B -3
2. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services,
the cumulative rates and charges identified in Exhibit A. The total sum to be expended under
this agreement shall not exceed $60,000 during the term of the Agreement.
b. Payment by City shall be made within thirty (30) days following receipt of proper
invoice evidencing work performed, subject to City accounting procedures. Payment need not
be made for work which fails to meet the standards of performance set forth in the Recitals
which may reasonably be expected by City.
3. TERM
This Agreement shall commence on the date first written above and terminate two (2)
years from said commencement date or upon the depletion of the maximum contract amount as
stated in Section 2 above, unless terminated earlier in accordance with provisions, below. The
term of this Agreement may be extended for an additional year upon a writing executed by the
City Manager and the City Attorney.
4. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee of the City. This Agreement is not intended nor
shall it be construed to create an employer - employee relationship, a joint venture relationship, or
to allow the City to exercise discretion or control over the professional manner in which
Consultant performs the services which are the subject matter of this Agreement; however, the
services to be provided by Consultant shall be provided in a manner consistent with all
applicable standards and regulations governing such services. Consultant shall pay all salaries and
wages, employer's social security taxes, unemployment insurance and similar taxes relating to
employees and shall be responsible for all applicable withholding taxes.
S. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall
maintain and shall require its subcontractors, if any, to obtain and maintain insurance as
described below:
a. Commercial General Liability Insurance. Consultant shall maintain commercial
general liability insurance which shall include, but not be limited to protection against claims
arising from bodily and personal injury, including death resulting therefrom and damage to
property, resulting from any act or occurrence arising out of Consultant's operations in the
performance of this Agreement, including, without limitation, acts involving vehicles. The
amounts of insurance shall be not less than the following: single limit coverage applying to
bodily and personal injury, including death resulting therefrom, and property damage, in the total
amount of $1,000,000 per occurrence, $1,000,000 in the aggregate. Such insurance shall (a)
name the City, its officers, employees, agents, volunteers and representatives as additional
25B -4
insured(s); (b) be primary with respect to insurance or self - insurance programs maintained by the
City; and (c) contain standard separation of insureds provisions. Consultant shall supply City
with a fully executed additional insured endorsement in substantially the form attached hereto as
Exhibit B upon execution of this Agreement, and shall be approved in form by the City Attorney.
b, Worker's Compensation Insurance. In accordance with the provisions of Section
3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured
against liability for worker's compensation or to undertake self - insurance. Prior to commencing
the performance of the work under this Agreement, Consultant agrees to obtain and maintain any
employer's liability insurance with limits not less than $1,000,000 per accident.
c. Professional liability (errors and omissions) insurance, with a combined single limit of
not less than $1,000,000 per claim, subject to $1,000,000.00 aggregate.
d. The following requirements apply to the insurance to be provided by Consultant
pursuant to this section;
(i) Consultant shall maintain all insurance required above in full force and
effect for the entire period covered by this Agreement.
(ii) Certificates of insurance shall be furnished to the City upon execution of
this Agreement and shall be approved in form by the City Attorney.
(iii) Certificates and policies shall state that the policies shall not be canceled
or reduced in coverage or changed in any other material aspect without
thirty (30) days prior written notice to the City.
d. If Consultant fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance has been procured
and is in force and paid for, the City shall have the right, at the City's election, to forthwith
terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its
time and materials expended prior to notification of termination. Consultant waives the right to
receive compensation and agrees to indemnify the City for any work performed prior to approval
of insurance by the City.
6. INDEMNIFICATION
Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, consultants, special counsel, and representatives from liability for personal injury,
damages, just compensation, restitution, judicial or equitable relief arising out of claims for
personal injury, including health, and claims for property damage, which may arise from the
direct or indirect negligent operations of the Consultant or its contractors, subcontractors, agents,
employees, or other persons acting on their behalf which relates to the services described in
section 1 of this Agreement. This indemnity and hold harmless agreement applies to all claims
for damages, just compensation, restitution, judicial or equitable relief suffered by reason of the
events referred to in this Section or by reason of the terns of, or effects, arising from this
Agreement. The Consultant further agrees to indemnify, hold harmless the City, regarding any
action by a third party challenging the validity of this Agreement, or asserting that personal
25B -5
injury, damages, just compensation, restitution, judicial or equitable relief due to personal or
property rights arises by reason of the terms o£, or effects arising from this Agreement, City may
make all reasonable decisions with respect to its representation in any legal proceeding.
CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such
information is reasonably understood to be confidential and/or proprietary, Consultant agrees
that it shall not use or disclose such information except in the performance of this Agreement,
and further agrees to exercise the same degree of care it uses to protect its own information of
like importance, but in no event less than reasonable care. "Confidential Information" shall
include all nonpublic information. Confidential information includes not only written
information, but also information transferred orally, visually, electronically, or by other means.
Confidential information disclosed to either party by any subsidiary and/or agent of the other
party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure
shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is,
through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful
possession of the Consultant without an obligation of confidentiality; (d) is required to be
disclosed by operation of law; or (e) is independently developed by the Consultant without
reference to information disclosed by the City.
S. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct
or indirect, which would conflict in any manner with performance of services specified under
this Agreement.
9. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this
Agreement shall be in writing and shall be deemed to be properly given if delivered in person or
mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other
telegraphic communication in the manner provided in this Section, to the following persons:
To City: Cleric of the City Council
City of Santa Ana
20 Civic Center Plaza (M -30)
P.O. Box 1988
Santa Ana, CA 92702 -1988
telefacsimile (714) 647 -6956
With courtesy copies to:
Executive Director of Planning and Building Agency
Building Safety Division
City of Santa Ana
20 Civic Center Plaza (M -19)
r
"IT1I
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647 -5897
City Attorney
City of Santa Ana
20 Civic Center Plaza (M -29)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647 -6515
To Consultant; Kosmont & Associates, Inc.
DBA Kosmont Companies
Larry J. Kosmont, President & CEO
865 South Figueroa Street, 35`x' Floor
Los Angeles, California 90017
telefacsimile (213) 417 -3311
A party may change its address by giving notice in writing to the other party. If sent by
mail; communication shall be effective or deemed to have been given three (3) days after it has
been deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by telefacsimile, communication shall be effective or
deemed to have been given twenty -four (24) hours after the time set forth on the transmission
report issued by the transmitting facsimile machine, addressed as set forth above. For purposes
of calculating these time frames, weekends, federal, state, County or City holidays shall be
excluded.
10. EXCLUSWITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant, and supersedes any and all other agreements, oral or written, between the parties, In
the event of a conflict between the terms of this Agreement and any attachments hereto, the
terms of this Agreement shall prevail. This Agreement may not be modified except by written
instrument signed by the City and by an authorized representative of Consultant. The parties
agree that any terms or conditions of any purchase order or other instrument that are inconsistent
with, or in addition to, the terms and conditions hereof, shall not bind or obligate either
Consultant or the City. Each party to this Agreement acknowledges that no representations,
inducements, promises or agreements, orally or otherwise, have been made by any party, or
anyone acting on behalf of any party, which are not embodied herein.
11. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without
the City's prior written consent shall be considered null and void. Nothing in this Agreement
25B -7
shall be construed to limit the City's ability to have any of the services which are the subject to
this Agreement performed by City personnel or by other consultants retained by City.
12. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant
compensation for all services performed by Consultant prior to receipt of such notice of termination,
subject to the following conditions:
a. As a condition of such payment, the Executive Director may require Consultant to
deliver to the City all work product completed as of such date, and in such case such work product
shall be the property of the City unless prohibited by law, and Consultant consents to the City's use
thereof for such purposes as the City deems appropriate.
b. Payment need not be made for work which fails to meet the standard of performance
specified in the Recitals of this Agreement.
13. DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited
by applicable law, in the recruitment, selection, training, utilization, promotion, termination or
other employment related activities. Consultant affirms that it is an equal opportunity employer
and shall comply with all applicable federal, state and local laws and regulations.
14. JURISDICTION - VENUE
This Agreement has been executed and delivered in the State of California and the
validity, interpretation, performance, and enforcement of any of the clauses of this Agreement
shall be determined and governed by the laws of the State of California. Both parties further
agree that Orange County, California, shall be the venue for any action or proceeding that may
be brought or arise out of, in connection with or by reason of this Agreement.
15. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services
hereunder and required by the laws and regulations of the United States, the State of California,
the City of Santa Ana and all other governmental agencies. Consultant shall notify the City
immediately and in writing of its inability to obtain or maintain such permits, li,cen.ses, approvals,
waivers, and exemptions. Said inability shall be cause for termination of this Agreement.
r
16. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature hereirrbelow has the power,
authority and right to bind their respective parties to each of the terns of this Agreement, and shall
indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to
City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if Bally set
forth in the body of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
CITY OF SANTA ANA
DAVID CAVAZOS
City Manager
KOSMONT & ASSOCIATES, INC.
DBA KOSMONT COMPANIES
LARRY J. KOSMONT
President & CEO
Tax ID#
25B -9
EXHIBIT A
SCOPE OF SERVICES
(Attached)
25B -10
i�oon
nompnnta9a
July 15, 2014
Mr. Vince C. Fregoso, AICP
Principal Planner
CITY OF SANTA ANA
Planning and Building Agency
20 Civic Center Plaza, M -20
Santa Ana, CA 92701
Re: Proposal for Services
Preliminary Highest & Best Use with Development Constraints Analysis
Dear Mr. Fregoso:
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 Santa Ana ( "Client ") in connection with the completion of a
preliminary highest and best use analysis and entitlement constraints assessment forthe
Elks Lodge Site ( "Site ") in conjunction with surrounding property such as the Santa Ana
Zoo site. The proposal also includes an analysis of the re -use and development potential
for the City's parking lot site located on 3rd and Broadway in the City's downtown.
II. SCOPE OF SERVICES
Elks Lodge Site Analysis
Task 1: Site and Local Area Analysis
To begin the assignment, Kosmont will confirm with Client if there are particular land
uses desired by Client pertaining to the Property.
Kosmont will inspect the Site to determine existing conditions related to access, visibility,
views, development suitability and related issues. Kosmont will also inspect the local
area including adjacent properties, to identify potential benefits and constraints the
adjacent properties may pose with respect to development and utilization of the
Property.
Kosmont will also utilize documentation provided by Client, which reflects the specific
development parameters for the Site based on zoning, development regulations, prior
entitlements, required entitlements and California Environmental Quality Act (CEQA)
approvals, depending on land use.
Task 2: Market Analysis
Kosmont will conduct a local market analysis in which key market trends are identified.
This may include identification by land use of current competition, general price and /or
865 South Figueroa Street 35� Floor Los Angeles CA 90017 ph 2i3A17.3300 fX 213,417,3311 www.kosmont.00m
25B -11
City of Santa Ana
Proposal for Services
July 15, 2014
Page 2 of 8
rent levels, vacancy rates, absorption rates, and other factors that may impact market
potential.
Kosmont will perform a brief review of property sales and /or tenant lease rates for
different product types to provide corroboration for observed market pricing levels, as
well as to provide insight into the potential for success of different development
approaches.
Task 3: Highest and Best Use Analysis
Kosmont will identify the potential highest and best use of the Site based on the results
of the site and market analyses, an understanding of Client's goals, entitlement and
development constraints identified including political and community issues which may
affect or delay development approvals. Kosmont will provide an analysis identifying the
market -based highest and best use and include supporting market data and assessment
of financial viability based on relevant metrics and other factors as may be appropriate.
Such analysis will include the results of initial meetings with the Elks property ownership
to ascertain the fundamental direction and priorities of the Elks.
Task A: Initial discussions with Elks and Zoo Representatives! Initial Letter of
Intent or MOU
Kosmont will engage in discussions with representatives from the Elks Lodge and Santa
Ana Zoo to determine commonalities and preferred approaches to the project based on
various site plan options. As part of that process, Kosmont will assess the potential for
the Elks to relocate some or all of their activities to other adjacent or nearby sites
(preliminary), which will also include confirming parking requirements and zoo operations
preferences in terms of primary entrance and other considerations, Kosmont can also
evaluate the potential for a joint use in the form of a combined facility as a potential use
that would accommodate special events and other activities.
Based on these discussions and prior activities, Kosmont can explore various strategic
alternatives that could be pursued through a Memorandum of Understanding (MOU) or
initial Letter of Intent and assist with identifying and drafting preliminary terms and
conditions to move forward in a binding transaction.
Task 5: Preliminary Financial Analysis and Summary of Analysis
Kosmont will provide a standard summary development pro forma illustrating the
projected Costs and expenses associated with the highest and best use analysis and
estimated net operating income and rate of return projections. Consultant will use
available "off the shelf' cost data and will not require the services of construction cost
estimator unless requested by Client (would be additional cost).
Deliverables for Tasks 1 through 6 will be a summary of Kosmont's findings in
PowerPoint or memo format including the development pro forma.
KOS MONT COMPANIES
866 South Figueroa Street 361h Floor Los Angeles CA 90017 ph 213.417.3300 fx 213.417.3311 www.kosmontcom
25B -12
City of Santa Ana
Proposal for Services
July 15, 2014
Page 3 of 8
Optional Task 6: Follow -on Activities
Subsequent to the completion of Tasks 1 through 5, based on the input and priorities of
the Client, Consultant will be available to complete supplemental evaluation of primary
strategies and issues and provide as desired, ongoing analysis andfor implementation
services based on the results of Tasks 1 through 5 and other investment and
development factors.
3rd and Broadway Parking Lot Site
Task 1: Parking Lot Site Analysis
Consultant will meet with staff to ascertain their development priorities in the downtown
Santa Ana area as they relate to potential product types, timing and overall objectives for
the parking lot property located at 3rtl and Broadway. Consultant will identify the probable
highest and best use development potential for the 3rd and Broadway parking lot
property in Downtown Santa Ana, primarily utilizing readily available market data and our
assessment of the opportunity based on experience, research, and utilization of reports,
studies, and documentation provided by the Client.
Kosmont will also inspect the local area including adjacent properties, to identify
potential benefits and constraints of the adjacent properties may pose with respect to
development and utilization of the Property. Kosmont will review prior developer
selection evaluations, formats and activities. Should the Client determine that there is a
preferred strategy that involves a reuse /development program and selection of a
developer, then Consultant would be available to create a comprehensive Request for
Qualifications developer selection process, by which Client can solicit and evaluate
proposals from qualified developers to determine whether there is a viable proposal for
redevelopment of the parking lot property.
III. SCHEDULE AND REQUIRED DATA
Consultant is prepared to commence work as soon as authorized. Client will provide
Consultant with existing project data which may be beneficial to Consultant's completion
of Project.
IV, COMPENSATION
Elks Lodae Site
Compensation for professional services in Task 1 through 5 will be billed on a time and
materials basis, with an initial labor budget of $25,000 dollars. Future increases, if
needed, Including the completion of Task 6 require prior written approval by Client.
3rd and Broadway Parking Lot Site
KOSMONT COMPAWES
865 South Figueroa Street 35 °'Floor Los Angeles CA 00017 ph213.417.3300 fx213.417.3311 www.kosmont,00m
25B -13
City of Santa Ana
Proposal for Services
July 15, 2014
Page 4 of 8
Compensation for professional services in Task 1 will be billed separately on a time and
materials basis with a estimated budget of $35,000 dollars, with additional Client
authorization required beyond the initial budget.
Full payment must be received by Consultant before the written summary of Kosmont's
analysis Is released to Client.
Professional Services will be invoiced monthly at Consultant's billing rates, as shown on
Attachment A, plus reimbursement for out -of- pocket expenses such as travel and
mileage, professional printing, conference calls, and delivery charges for messenger and
overnight packages at actual cost. 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 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 immediately upon receipt of authorization.
Aspects of subsequent tasks and services (if any) such as acquisition or disposition of
property, lease transactions, and /or specific government funding including financing
programs such as, but not limited to, grants, public (tax- exempt) or public /private
(taxable /tax- exempt) bonds or notes, lease or lease /leaseback financing or other
structures are typically provided under a separate commission based compensation
agreement, by Kosmont Realty Corporation ( "KRC "), a licensed California brokerage firm
that is registered as a municipal advisor with the Securities Exchange Commission
(SEC).
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, Califorria. 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 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
KOSMONT COMPANIES
865 South Figueroa Street 35" Floor Los Angeles CA 90017 ph 213.417.3300 fx 213.417,3311 www.kasmort.com
25B -14
City of Santa Ana
Proposal for Services
July 15, 2014
Page 5 of 8
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 there 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 corstitute 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.
1. 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
866 South Figueroa Street 35r^ Floor Los Angsles CA 90017 ph 213.417.3300 fx 213.417.3311 www,koemont.com
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City of Santa Ana
Proposal for Servloes
July 15, 2014
Page B 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.
0. 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
866 South Figueroa Street 36°i Floor Los Angelos CA 90017 $ 213.417.3300 N213.417.3311 ww .kosmont.com
25B -16
City of Santa Ana
Proposal for Services
July 15, 2014
Page 7 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.
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 and services deposit.
Read, understood, and agreed to this
—Day of 2014
City of Santa Ana
By:
(Signature)
Name:
(Print Name)
Its:
(Title)
Kosmont & Associates, Inc.
doing business as "Kosmont Companies"
By:
(Signature)
Name: Larry J. Kosmont, CRE
Its: President & CEO
KOSMONT COMPANIES
88G South Figueroa Street 35" Floor Los Angeles CA 90017 ph 213.417.3300 Ix 213.417.3311 www.kosmont.com
25B -17
City of Santa Ana
Proposal for Services
July 15, 2014
Page 8 of 8
ATTACHMENT
Kosmont Companies
2014 Public Agency Fee Schedule
Professional Services
President & CEO $295.00 /hour
Partner /Senior Vice President/Senior Consultant $275.00 /hour
Vice President/Associate $185.00 /hour
Project Analyst / Project Manager $150.00 /hour
GIS Mapping /Graphics Service /Research $ 95.00 1hour
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.
• 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, 2014,
KOSMON7 COMPANIES
868 South Figueroa Street 36" Floor Los Angeles CA 90017 ph 213.417.3300 fx 213.417.3311 w Aasmont.00m
25B -18