2013/07/24 Kosmont and Associates, Inc. FY13 Auto Mall Analysis PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT for Professional Services ("Agreement") is made this day of
-7:Su L : 2013 ("Effective Date") by and between the CITY OF MENIFEE ("City") and Kosmont &
Associates, Inc., doing business as "Kosmont Companies" ("Consultant") (together sometimes
referred to the "Parties").
Section 1. SERVICES. Subject to the terms and conditions set forth in this
Agreement, Consultant shall provide to City the services described in the Scope of Work,
(Exhibit A) and incorporated here. Consultant will perform subsequent Task Orders as
requested by the Contract Administrator, in accordance with the Scope of Work. In the event of
a conflict in or inconsistency between the terms of this Agreement and Exhibit A, this Agreement
shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the
Effective Date and shall end on Sine 30 , 201'-j unless the term of the Agreement is
otherwise terminated or extended as provided for in Section 8. The time provided to Consultant
to complete the services required by this Agreement shall not affect the City's right to terminate
the Agreement, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services
required pursuant to this Agreement in the manner and according to the standards observed by
a competent practitioner of the profession in which Consultant is engaged in the geographical
area in which Consultant practices its profession and to the sole satisfaction of the Contract
Administrator.
1.3 Assignment of Personnel. Consultant shall assign only competent
personnel to perform services pursuant to Agreement. In the event that City, in its sole
discretion, at any time during the term of this Agreement, desires the reassignment of any such
persons, Consultant shall, immediately upon receiving notice from City of such desire of City,
reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of services
pursuant to this Agreement as may be reasonably necessary to satisfy Consultant's obligations
hereunder.
1.5 Authorization to Perform Services. The Consultant is not authorized to
perform any services or incur any costs whatsoever under the terms of this Agreement until
receipt of authorization from the Contract Administrator.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to
exceed Twenty Four Thousand Seven Hundred and Fifty Dollars ($24,750) notwithstanding any
contrary indications that may be contained in Consultant's proposal, for services to be
performed and reimbursable costs incurred under this Agreement. In the event of a conflict
between this Agreement and Exhibit A, regarding the amount of compensation, this Agreement
shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the
time and in the manner set forth herein. The payments specified below shall be the only
4824-7172-0963.1
Professional Services Agreement with t of 12
payments from City to Consultant for services rendered pursuant to this Agreement. Consultant
shall submit all invoices to City in the manner specified herein.
2.1 Invoices. Consultant shall submit invoices monthly during the term of
this Agreement, based on the cost for services performed and reimbursable costs incurred prior
to the invoice date. Invoices shall contain the following information:
• Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first
invoice, etc.;
• The beginning and ending dates of the billing period;
• A Task Summary containing the original contract amount, the amount of prior
billings, the total due this period, the balance available under the Agreement,
and the percentage of completion;
• At City's option, for each work item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person
doing the work, the hours spent by each person, a brief description of the
work, and each reimbursable expense;
• The total number of hours of work performed under the Agreement by
Consultant and each employee, agent, and subcontractor of Consultant
performing services hereunder necessary to complete the work described in
Exhibit A;
• Receipts for expenses to be reimbursed;
• The Consultant's signature.
2.2 Monthly Payment. City shall make monthly payments, based on
invoices received, for services satisfactorily performed, and for authorized reimbursable costs
incurred. City shall have thirty (30) days from the receipt of an invoice that complies with all of
the requirements above to pay Consultant.
2.3 Final Payment. City shall pay the last ten percent (10%) of the total sum
due pursuant to this Agreement within sixty (60) days after completion of the services and
submittal to City of a final invoice, if all services required have been satisfactorily performed.
2.4 Total Payment. City shall not pay any additional sum in excess of
$24,750 for any expense or cost whatsoever incurred by Consultant in rendering services
pursuant to this Agreement. City shall make no payment for any extra, further, or additional
service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the
maximum amount of compensation provided above either for a task or for the entire Agreement,
unless the Agreement is modified in writing prior to the submission of such an invoice.
2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis
shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Expenses. Reimbursable expenses are included within
the maximum amount of the contract.
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2.7 Payment of Taxes. Consultant is solely responsible for the payment of
employment taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant
terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for
all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of
the date of written notice of termination. Consultant shall maintain adequate logs and
timesheets in order to verify costs incurred to that date.
Section 3. FACILITIES AND EQUIPMENT. Except as otherwise provided,
Consultant shall, at its sole cost and expense, provide all facilities and equipment necessary to
perform the services required by this Agreement. City shall make available to Consultant only
physical facilities such as desks, filing cabinets, and conference space, as may be reasonably
necessary for Consultant's use while consulting with City employees and reviewing records and
the information in possession of the City. The location, quantity, and time of furnishing those
facilities shall be in the sole discretion of City. In no event shall City be required to furnish any
facility that may involve incurring any direct expense, including but not limited to computer, long-
distance telephone or other communication charges, vehicles, and reproduction facilities.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this
Agreement, Consultant, at its own cost and expense, shall procure the types and amounts of
insurance checked below and provide Certificates of Insurance, indicating that Consultant has
obtained or currently maintains insurance that meets the requirements of this section and which
is satisfactory, in all respects, to the City. Consultant shall maintain the insurance policies
required by this section throughout the term of this Agreement. The cost of such insurance shall
be included in the Consultant's compensation. Consultant shall not allow any subcontractor,
consultant or other agent to commence work on any subcontract until Consultant has obtained
all insurance required herein for the subcontractor(s) and provided evidence thereof to City.
Verification of the required insurance shall be submitted and made part of this Agreement prior
to execution. Consultant acknowledges the insurance policy must cover inter-insured suits
between the City and other Insureds.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense,
maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any
and all persons employed directly or indirectly by Consultant. The Statutory Workers'
Compensation Insurance and Employer's Liability Insurance shall be provided with limits of not
less than ONE MILLION DOLLARS ($1,000,000.00) per accident, ONE MILLION DOLLARS
($1,000,000.00) disease per employee, ONE MILLION DOLLARS ($1,000,000.00) disease per
policy. In the alternative, Consultant may rely on a self-insurance program to meet those
requirements, but only if the program of self-insurance complies fully with the provisions of the
California Labor Code. Determination of whether a self-insurance program meets the standards
of the Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if
insurance is provided, or the Consultant, if a program of self-insurance is provided, shall waive
all rights of subrogation against the City and its officers, officials, employees, and authorized
volunteers for loss arising from work performed under this Agreement.
4.2 Commercial General
Automobile Liability Insurance.
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4.2.1 General requirements. Consultant, at its own cost and expense,
shall maintain commercial general and automobile liability insurance for the term of this
Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per
occurrence, combined single limit coverage, for risks associated with the work contemplated by
this Agreement, TWO MILLION DOLLARS ($2,000,000.00) general aggregate, TWO MILLION
DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General
Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is
used, either the general aggregate limit shall apply separately to the work to be performed
under this Agreement or the general aggregate limit shall be at least twice the required
occurrence limit. Such coverage shall include but shall not be limited to, protection against
claims arising from bodily and personal injury, including death resulting therefrom, and damage
to property resulting from activities contemplated under this Agreement, including the use of
hired, owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage
shall be at least as broad as Insurance Services Office Commercial General Liability occurrence
form CG 0001 or GL 0002 (most recent editions) covering comprehensive General Liability and
Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General
Liability. Automobile coverage shall be at least as broad as Insurance Services Office
Automobile Liability form CA 0001 (ed. 12/90) Code 8 and 9. No endorsement shall be attached
limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included
in the insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occurrence or an accident
basis, and not on a claims-made basis.
b. Any failure of Consultant to comply with reporting
provisions of the policy shall not affect coverage provided to City and its officers, employees,
agents, and volunteers.
4.3 Professional Liability Insurance.
4.3.1 General requirements. Consultant, at its own cost and expense,
shall maintain for the period covered by this Agreement professional liability insurance for
licensed professionals performing work pursuant to this Agreement in an amount not less than
ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals' errors and
omissions. Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 Claims-made limitations. The following provisions shall apply if
the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must
be no later than the commencement of the work.
b. If coverage is canceled or not renewed and it is not
replaced with another claims-made policy form with a retroactive date that precedes the date of
this Agreement, Consultant must provide extended reporting coverage for a minimum of one (1)
4824-7172-0963.1 4 of 11
years after completion of the Agreement or the work. Such continuation coverage may be
provided by one of the following: (1) renewal of the existing policy; (2) an extended reporting
period endorsement; or (3) replacement insurance with a retroactive date no later than the
commencement of the work under this Agreement. The City shall have the right to exercise, at
the Consultant's sole cost and expense, any extended reporting provisions of the policy, if the
Consultant cancels or does not renew the coverage.
C. A copy of the claim reporting requirements must be
submitted to the City prior to the commencement of any work under this Agreement.
4.4 All Policies Requirements.
4.4.1 Acceptability of insurers. All insurance required by this section
is to be placed with insurers with a Bests' rating of no less than A:VII and admitted in California.
4.4.2 Verification of coveraae. Prior to beginning any work under this
Agreement, Consultant shall furnish City with Certificates of Insurance, additional insured
endorsement or policy language granting additional insured status complete certified copies of
all policies, including complete certified copies of all endorsements. All copies of policies and
certified endorsements shall show the signature of a person authorized by that insurer to bind
coverage on its behalf. The Certificate of Insurance must include the following reference:
Market Analysis for Menifee Auto Mall. The name and address for Additional Insured
endorsements, Certificates of Insurance and Notice of Cancellation is: City of Menifee, 29714
Haun Road, Menifee, CA 92586. The City must be endorsed as an additional insured for liability
arising out of ongoing and completed operations by or on behalf of the Consultant.
4.4.3 Notice of Reduction in or Cancellation of Coverage. A certified
endorsement shall be attached to all insurance obtained pursuant to this Agreement stating that
coverage shall not be suspended, voided, canceled or materially changed by either party, or
reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified,
mail, return receipt requested, has been given to the City. In the event that any coverage
required by this section is reduced, limited, cancelled, or materially affected in any other
manner, Consultant shall provide written notice to City at Consultant's earliest possible
opportunity and in no case later than ten (10) working days after Consultant is notified of the
change in coverage.
4.4.4 Additional insured, primary insurance. City and its officers,
employees, agents, and authorized volunteers shall be covered as additional insureds with
respect to each of the following: liability arising out of activities performed by or on behalf of
Consultant, including the insured's general supervision of Consultant; products and completed
operations of Consultant, as applicable; premises owned, occupied, or used by Consultant; and
automobiles owned, leased, or used by the Consultant in the course of providing services
pursuant to this Agreement. The coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents, or authorized volunteers. The
insurance provided to the City as an additional insured must apply on a primary and non-
contributory basis with respect to any insurance or self-insurance program maintained by the
City.
4824-7172-0963.1 5 of t t
A certified endorsement must be attached to all policies stating that
coverage is primary insurance with respect to the City and its officers, officials, employees and
volunteers, and that no insurance or self-insurance maintained by the City shall be called upon
to contribute to a loss under the coverage.
4.4.5 Deductibles and Self-insured Retentions. Consultant shall
obtain the written approval of City for the self-insured retentions and deductibles before
beginning any of the services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express
written authorization of Contract Administrator, Consultant may increase such deductibles or
self-insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond guaranteeing payment of
losses and related investigations, claim administration, and defense expenses that is
satisfactory in all respects to each of them.
4.4.6 Subcontractors. Consultant shall include all subcontractors as
insureds under its policies or shall furnish separate certificates and certified endorsements for
each subcontractor. All coverages for subcontractors shall be subject to all of the requirements
stated herein.
4.4.7 Variation. Contract Administrator may approve in writing a
variation in the foregoing insurance requirements, upon a determination that the coverage,
scope, limits, and forms of such insurance are either not commercially available, or that the
City's interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies City may have if Consultant
fails to provide or maintain any insurance policies or policy endorsements to the extent and
within the time herein required, City may, at its sole option, exercise any of the following
remedies, which are alternatives to other remedies City may have and are not the exclusive
remedy for Consultant's breach:
• Order Consultant to stop work under this Agreement or withhold any
payment that becomes due to Consultant hereunder, or both stop work and
withhold any payment, until Consultant demonstrates compliance with the
requirements hereof; and/or
• Terminate this Agreement.
Section 5. INDEMNIFICATION.
(a ) Indemnification for Professional Liability. Where the law establishes a professional
standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant
shall indemnify, protect, defend and hold harmless City and any and all of its officials,
4824-7172-0963.1 6 of 11
employees and agents ("Indemnified Parties") from and against any and all losses, liabilities,
damages, costs and expenses, including attorney's fees and costs to the extent same are
caused in whole or in part by any negligent or wrongful act, error or omission of Consultant, its
officers, agents, employees or sub-consultants (or any entity or individual that Consultant shall
bear the legal liability thereof) in the performance of professional services under this Agreement.
(b) Indemnification for Other than Professional Liability. Other than in the performance
of professional services and to the full extent permitted by law, Consultant shall indemnify,
protect, defend and hold harmless the City of Menifee, and any and all of its employees, officials
and agents from and against any liability (including liability for claims, suits, actions, arbitration
proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of
any kind, whether actual, alleged or threatened, including attorneys fees and costs, court costs,
interest, defense costs, and expert witness fees), where the same arise out of, are a
consequence of, or are in any way attributable to, in whole or in part, the performance of this
Agreement by Consultant or by any individual or entity for which Consultant is legally liable,
including but not limited to officers, agents, employees or sub-contractors of Consultant.
(c) The provisions of this section do not apply to claims occurring as a result of City's
sole or active negligence. The provisions of this section shall not release City from liability
arising from gross negligence or willful acts or omissions of City or any and all of its officials,
employees and agents.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement,
Consultant shall be an independent contractor and shall not be an employee of City. City shall
have the right to control Consultant only insofar as the results of Consultant's services rendered
pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3;
however, otherwise City shall not have the right to control the means by which Consultant
accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City,
state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of
its employees, agents, and subcontractors providing services under this Agreement shall not
qualify for or become entitled to any compensation, benefit, or any incident of employment by
City, including but not limited to eligibility to enroll in the California Public Employees Retirement
System (PERS) as an employee of City and entitlement to any contribution to be paid by City for
employer contributions and/or employee contributions for PERS benefits.
Section 7. LEGAL REQUIREMENTS.
7.1 Governinu Law. The laws of the State of California shall govern this
agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractor
shall comply with all applicable local, state and federal laws and regulations applicable to the
performance of the work hereunder. Consultant shall not hire or employ any person to perform
work within the City of Menifee or allow any person to perform work required under this
Agreement unless such person is properly documented and legally entitled to be employed
within the United States. Consultant shall obtain a City of Menifee business license. Consultant
shall require the same of all subcontractors.
4824-7172-0963.1 7 of 11
7.3 Licenses and Permits. Consultant represents and warrants to City that
Consultant and its employees, agents, and any subcontractors have all licenses, permits,
qualifications, and approvals of whatsoever nature that are legally required to practice their
respective professions. Consultant represents and warrants to City that Consultant and its
employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all
times during the term or this Agreement any licenses, permits, and approvals that are legally
required to practice their respective professions. In addition to the foregoing, Consultant and
any subcontractors shall obtain and maintain during the term of this Agreement valid Business
Licenses from City.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without
cause upon written notification to Consultant.
Consultant may cancel this Agreement upon 30 days' written notice to City and
shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for
services performed to the effective date of termination; City, however, may condition payment of
such compensation upon Consultant delivering to City any or all documents, photographs,
computer software, video and audio tapes, and other materials provided to Consultant or
prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end
date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall
require a written amendment to this Agreement, as provided for herein. Consultant understands
and agrees that, if City grants such an extension, City shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this Agreement.
Similarly, unless authorized by the Contract Administrator, City shall have no obligation to
reimburse Consultant for any otherwise reimbursable expenses incurred during the extension
period.
8.3 Amendments. The parties may amend this Agreement only by a writing
signed by all the parties.
8.4 Assignment and Subcontracting. City and Consultant recognize and
agree that this Agreement contemplates personal performance by Consultant and is based
upon a determination of Consultant's unique personal competence, experience, and specialized
personal knowledge. Moreover, a substantial inducement to City for entering into this
Agreement was and is the professional reputation and competence of Consultant. Consultant
may not assign this Agreement or any interest therein without the prior written approval of the
Contract Administrator. Consultant shall not subcontract any portion of the performance
contemplated and provided for herein, other than to the subcontractors noted in the proposal,
without prior written approval of the Contract Administrator. In the event that key personnel
leave Consultant's employ, Consultant shall notify City immediately.
4824-7172-0963.1 8 of 11
8.5 Options upon Breach by Consultant. If Consultant materially breaches
any of the terms of this Agreement, City's remedies shall include, but not be limited to, any or all
of the following:
8.5.1 Immediately terminate the Agreement;
8.5.2 Retain the plans, specifications, drawings, reports, design
documents, and any other work product prepared by Consultant pursuant to this Agreement;
8.5.3 Retain a different consultant to complete the work described in
Exhibit A not finished by Consultant; or
8.5.4 Charge Consultant the difference between the cost to complete
the work described in Exhibit A that is unfinished at the time of breach and the amount that City
would have paid Consultant pursuant to Section 2 if Consultant had completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. All reports,
data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies,
specifications, records, files, or any other documents or materials, in electronic or any other
form that Consultant prepares or obtains pursuant to this Agreement and that relate to the
matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver
those documents to the City upon termination of the Agreement. It is understood and agreed
that the documents and other materials, including but not limited to those described above,
prepared pursuant to this Agreement are prepared specifically for the City and are not
necessarily suitable for any future or other use. City and Consultant agree that, until final
approval by City, all data, plans, specifications, reports and other documents are confidential
and will not be released to third parties without prior written consent of both parties unless
required by law.
9.2 Consultant's Books and Records. Consultant shall maintain any and
all ledgers, books of account, invoices, vouchers, canceled checks, and other records or
documents evidencing or relating to charges for services or expenditures and disbursements
charged to the City under this Agreement for a minimum of three (3) years, or for any longer
period required by law, from the date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that
Section 9.2 of this Agreement requires Consultant to maintain shall be made available for
inspection, audit, and/or copying at any time during regular business hours, upon oral or written
request of, the City. Under California Government Code Section 8546.7, if the amount of public
funds expended under this Agreement exceeds Ten Thousand Dollars ($10,000.00), the
Agreement shall be subject to the examination and audit of the State Auditor, at the request of
City or as part of any audit of the City, for a period of three (3) years after final payment under
the Agreement.
Section 10. MISCELLANEOUS PROVISIONS.
4824-7172-0963.1 9 Of t t
10.1 Attorneys' Fees. If either party to this Agreement brings any action,
including an action for declaratory relief, to enforce or interpret the provision of this Agreement,
the prevailing party shall be entitled to reasonable attorneys' fees and expenses including costs,
in addition to any other relief to which that party may be entitled. The court may set such fees in
the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other
under this Agreement, the parties agree that trial of such action shall be vested exclusively in
Riverside County.
10.3 Severability. If a court of competent jurisdiction finds or rules that any
provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement
not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any
provision of this Agreement shall not void or affect the validity of any other provision of this
Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific
provision of this Agreement does not constitute a waiver of any other breach of that term or any
other term of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure
to the benefit of and shall apply to and bind the successors and assigns of the parties.
10.6 Consultant Representative. All matters under this Agreement shall be
handled for Consultant by Larry J. Kosmont, CRE and Kosmont senior staff as designated by
Larry J. Kosmont.
10.7 City Contract Administration. This Agreement shall be administered by
a City Employee, Jeff Wyman ("Contract Administrator"). All correspondence shall be directed
to or through the Contract Administrator or his or her designee.
10.8 Notices. Any written notice to Consultant shall be sent to:
Kosmont &Associates, Inc., dba Kosmont Companies
865 South Figueroa Street
Los Angeles, Ca. 90017
Any written notice to City shall be sent to the Contract Administrator with a copy
to:
City Clerk
City of Menifee
29714 Haun Road
Menifee, CA 92586
10.9 Professional Seal. Where applicable in the determination of the
Contract Administrator, the first page of a technical report, first page of design specifications,
and each page of construction drawings shall be stamped/sealed and signed by the licensed
professional responsible for the report/design preparation. The stamp/seal shall be in a block
4824-7172-0963.1 10 of 11
entitled "Seal and Signature of Registered Professional with report/design responsibility," as in
the following example.
Seal and Signature of Registered Professional with
report/design responsibility.
10.10 Integration. This Agreement, including the scope of work attached
hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement
between City and Consultant and supersedes all prior negotiations, representations, or
agreements, either written or oral.
10.11 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be an original and all of which together shall constitute one
agreement.
10.12 Nondiscrimination. Consultant shall not discriminate in any way,
against any person n the basis of race, color, religious creed, national origin, ancestry, sex, age,
physical handicap, medical condition or marital status in connection with or related to the
performance of this Agreement.
Section 11.
The Parties have executed this Agreement as of the Effective Date.
CITY OF MENIFEE CONSULTANT
KOSMONT & SO TES,
Ro er jolinson, Interim City Manager c arry . I sm nt, CFkE
ITS: President & CEO
Attest:
4 ri- --
Kathy Bennett, City Clerk
Approved as to Form:
Ltl,�o
J iee Biggs ntel ity Attorney
4824-7172-0963.1 11 of I I
EXHIBIT A
SCOPE OF WORK
4824-7172-0963.1 12 Of I I
kosmon•„,es
June 18, 2013
Jeff Wyman
Economic Development Director
City of Menifee
29714 Haun Rd.
Menifee, CA 92586
Re: Proposal for Feasibility and Market Analysis for Menifee Auto Mall
Dear Mr. Wyman:
Kosmont & Associates, Inc., doing business as Kosmont Companies, is pleased to
present this proposal for a Feasibility and Market Analysis, in connection with a
proposed auto mall to the City of Menifee ("Client" or "City"). Kosmont will be
collaborating with Direct Point Advisors, Inc. ("DPA" — Subcontractor to Kosmont
Companies) on this project (collectively "Consultant", or Kosmont/DPA").
(. BACKGROUND
The City of Menifee seeks to attract new car dealerships in order to facilitate an auto
mall project in the City and has requested Consultant's assistance in analysis of the
market and other factors, and to generate an initial assessment of viability of an auto
mall project on certain sites. The City has identified the following three potential sites for
the auto mall:
1. Fleming Ranch Site North of McCall Blvd. along Encanto Dr. (Approx. 85 acres)
2. Haun Rd. and Holland Rd. Site (Approx. 70 acres)
3. Scott Rd. and Antelope Rd. Site (Approx. 264 acres)
II. SCOPE OF SERVICES
Task 1: Market Supply/Demand and Feasibility Analysis of Automobile Project
This task will involve a detailed supply/demand analysis to assess the potential of the
auto mall and timely reuse of vacated auto dealer and/or other sites in the City of
Menifee. The following "candidate" land uses will be considered to the extent applicable:
• Retail;
• Service commercial;
• Auto-related;
• Office;
• Industrial.
865 South Figueroa Street 35"'Floor Los Angeles CA 90017 ph 213.417.3300 &213.417.3311 w .kosmontxom
City of Menifee
Proposal for Feasibility Study
June 18, 2013
Page 2 of 8
The market analysis will include the following:
• Define relevant trade areas;
• Compile relevant market data pertaining to automobile sales in zone based on
current and projected population and income levels in the defined trade areas;
• Compile data on current vacancy rates and recent/historic absorption rates;
• Compile data on current and projected employment levels (by major industry
group) in the defined trade areas;
• Evaluate relevant automotive and retail sales trends in the City of Menifee and
surrounding competing areas;
• Inventory supply of primary competing facilities and sites (i.e. potential
development sites in communities within competing "zone" based on point of sale
allocation);
• Analysis of primary competing dealerships and auto malls based on cities with
similar population, income levels, and demographics
• Provide assessment as to the likely "fit' between certain automobile stores and
brands in terms of zone conflicts, sales demographics for certain stores and
products, and potential for relocation from outside or within zone for certain
stores/brand; identify issues that may impact where new car dealerships can
open and may limit the attraction of new dealerships to the City
• Project 5-year demand utilizing Consultant's proprietary forecasting models
• Estimate preferred range of size for the auto mall and/or individual dealerships;
recommend layout components for an auto mall including on/off sites.
Task 2: Fiscal Impact Analysis
Utilizing data from Task 1, Kosmont/DPA will evaluate the potential impacts of the
proposed project including new automobile stores on the City of Menifee's tax base
including, but not limited to, sales and property tax revenue, job generation, and direct,
indirect and induced economic impacts. As part of this analysis, Kosmont/DPA will
identify potential incentives the City could offer to dealerships. If applicable, Kosmont will
identify potential land use, zoning, and economic incentives that the City could consider
offering to potential dealerships.
Task 3: Summary and Presentation of Findings
Consultant will prepare a summary presentation of findings and make an in-person
presentation to the City Council and/or designated public meeting. The Team is available
to participate in additional meetings as desired at standard billing rates.
KOSMONT COMPANIES
865 South Figueroa Street 35"'Floor Los Angeles CA 90017 ph 213.417.3300 fx 213.417.3311 w .kosmont.com
City of Menifee
Proposal for Feasibility Study
June 18, 2013
Page 3 of 8
Task 4: Initial Project Implementation
KOSmont/DPA would be available, upon Client request, to assist in the initial
implementation of the auto mall project including initial negotiations of the public-private
transaction as necessary to attract new automobile stores to Menifee.
III. SCHEDULE
Consultant is prepared to commence work immediately upon authorization and
execution of Agreement by Client.
IV. COMPENSATION
Compensation for services under Tasks 1 through 4 is estimated at $24,750 be invoiced
on a time and materials basis.
Estimated Cost Breakdown:
Task Estimated Budget
1 Market & Feasibility Analysis $15,000
2 Fiscal Impact Analysis $5,000
3 Summary of Findings &Presentation $4,750
4 Initial Implementation TBD
Total Estimated Range) $24,750 - $29,000
Further increases in budget, if needed, will require approval by Client in advance.
If the City determines that it desires to move forward with a specific auto mall and /or
dealership transaction as initiated in Task 4, then Kosmont will provide an estimated
implementation budget which shall be approved in writing prior to proceeding.
Services will be invoiced monthly at Consultant's billing rates, as shown on Attachment
A. 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 mileage reimbursement
rate of 56.5 cents per mile), professional printing, conference calls, and delivery charges
for messenger and overnight packages at actual cost. Out-of-state travel 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 monthly professional service fees incurred. Any unpaid invoices after 30
days shall accrue interest at the rate of 10% per annum.
KOSMONT COMPANIES
865 South Figueroa Street 35'h Floor Los Angeles CA 90017 ph 213.417.3300 fx 213.417.3311 w Aosmontxom
City of Menifee
Proposal for Feasibility Study
June 18, 2013
Page 4 of 8
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 (a) 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
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
KOSMONT COMPANIES
865 South Figueroa Street 351h Floor Los Angeles CA 90017 ph 213.417.3300 N 213.417.3311 w Aosmont.com
City of Menifee
Proposal for Feasibility Study
June 18, 2013
Page 5 of 8
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
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
includes 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
KOSMONT COMPANIES
865 South Figueroa Street 35" Floor Los Angeles CA 90017 ph 213.417.3300 &213.417.3311 w Aosmontxom
City of Menifee
Proposal for Feasibility Study
June 18, 2013
Page 6 of 8
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.
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.
KOSMONT COMPANIES
865 South Figueroa Street 35' Floor Los Angeles CA 90017 ph 213.417.3300 &213.417.3311 w .kosmontxom
City of Menifee
Proposal for Feasibility Study
June 18, 2013
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 2013
City of Menifee, California Kosmont & Associates, Inc.
doing business as "Kosmont Companies"
By: By:
(Signature) (Signature)
Name: Name: Larry J. Kosmont, CRE
(Print Name)
Its: Its: President & CEO
(Title)
KOSMONT COMPANIES
865 South Figueroa Street 35' Floor Los Angeles CA 90017 ph 213.417.3300 &213.417.3311 w Aosmontxom
City of Menifee
Proposal for Feasibility Study
June 18, 2013
Page 8 of 8
ATTACHMENT A
Kosmont Companies
2013 Public Agency Fee Schedule
Professional Services
President & CEO $295.00/hour
Partner/Senior Vice President/Senior Consultant/DPA $225.00/hour
Vice President/Associate $185.00/hour
Project Analyst $150.00/hour
GIS Mapping/Graphics Service/Research $ 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.
• Chases 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, 2013
KOSMONT COMPANIES
865 South Figueroa Street 35'^Floor Los Angeles CA 90017 ph 213.417.3300 be 213.417.3311 w .kosmontxom