2019/12/01 Kosmont and Associates, Inc. Hotel Market & Site Analysis CITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
CITY OF MENIFEE INITIAL HOTEL MARKET AND SITE ANALYSIS
THIS PROFESSIONAL SERVICES AGREEMENT("Agreement") is made and effective
this J F t day of 3amkdr tA 2019("Effective Date")by and between the CITY OF MENIFEE,
a California municipal corporation, ("City") and KOSMONT & ASSOCIATES,
INC., dba KOSMONT COMPANIES, a California corporation ("Consultant").
City and Consultant may sometimes herein be referred to individually as a "Party" and
collectively as 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 Services, attached hereto as Exhibit A and
incorporated herein by this reference (the "Services"). Consultant will perform subsequent
task orders as requested by the Contract Administrator (as defined below), in accordance
with the Scope of Services. 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 December 1, 2019
and shall end on June 30, 2020 unless the term of this 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 City's right to terminate this Agreement, as
provided for in Section 8.
1.2 Standard of Performance. Consultant represents and warrants that Consultant is a
provider of first class work and services and Consultant is experienced in performing the Services
contemplated herein and, in light of such status and experience, Consultant shall perform
the 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 the 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 the Services
pursuant to this Agreement as may be reasonably necessary to satisfy Consultant's
obligations hereunder.
1.5 Authorization to Perform Services. Consultant is not authorized to perform any
of the Services or incur any costs whatsoever under the terms of this Agreement until receipt
of authorization from the Contract Administrator,
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SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum not to exceed EIGHTEEN THOUSAND
TWO HUNDRED DOLLARS AND ZERO CENTS ($18,200.00)notwithstanding any contrary
indications that may be contained in Consultant's proposal, for the 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 the Services rendered pursuant to this Agreement at the time and in
the manner set forth herein. The payments specified below shall be the only payments from City
to Consultant for the Services rendered pursuant to this Agreement. Consultant shall submit all
invoices to City in the manner specified herein. Except as specifically authorized in advance by
City, Consultant shall not bill City for duplicate services performed by more than one person.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this
Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to
the invoice date. Invoices shall contain the following information:
a. Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first
invoice, etc.;
b. The beginning and ending dates of the billing period;
C. A "Task Summary" containing the original contract amount,the amount of
prior billings,the total due this period,the balance available under this Agreement, and the
percentage of completion;
d. At City's option, for each item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person performing the
Services, the hours spent by each person, a brief description of the Services, and each
reimbursable expense;
e. The total number of hours of work performed under this Agreement by
Consultant and each employee, agent, and subcontractor of Consultant performing the
Services hereunder necessary to complete the Services described in Exhibit A;
f. Receipts for expenses to be reimbursed;
g. The Consultant Representative's signature.
Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29844 Haun Road
Menifee, CA 92586
2.2 Monthly Payment. City shall make monthly payments,based on invoices received,
for the Services satisfactorily performed, and for authorized reimbursable costs incurred. City
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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 five percent(5%) of the total amount due
pursuant to this Agreement within sixty(60) days after completion of the Services and submittal
to City of a final invoice, if all of the Services required have been satisfactorily performed.
2.4 Total Payment. City shall not pay any additional sum for any expense or cost
whatsoever incurred by Consultant in rendering the 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 entirety of the
Services performed pursuant to this Agreement,unless this Agreement is modified in writing prior
to the submission of such an invoice.
2.5 Hourly Fees. Fees for the Services performed by Consultant on an hourly basis
shall not exceed the amounts shown on the fee schedule included with Exhibit A.
2.6 Reimbursable Ex enses. Reimbursable expenses are included within the maximum
amount of this Agreement.
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 uRon Termination. In the event that City or Consultant terminates this
Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs and
reimbursable expenses incurred for Services satisfactorily completed and for reimbursable
expenses as of the date of written notice of termination. Consultant shall maintain adequate logs
and timesheets in order to verify costs and reimbursable expenses 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 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
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requirements of this section and which is satisfactory, in all respects, to 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 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 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 pursuant to the provisions of the California
Labor Code. 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,and 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 California Labor Code shall be solely in the discretion of the
Contract Administrator. The insurer, if insurance is provided, or Consultant, if a program of self-
insurance is provided, shall waive all rights of subrogation against City and its officers, officials,
employees, and authorized volunteers for loss arising from the Services performed under this
Agreement.
4.2 Commercial General and Automobile Liabilily Insurance.
a. 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 Services contemplated by this Agreement,TWO
MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION
DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General
Liability Insurance or an Automobile Liability Insurance form or other form with a general
aggregate limit is used, either the general aggregate limit shall apply separately to the Services 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 the Services contemplated under this Agreement, including the
use of hired, owned, and non-owned automobiles.
b. Minimum scope of covera e. Commercial general coverage shall be at least
as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001.
Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability
form CA 0001 Code 2, 8, and 9. No endorsement shall be attached limiting the coverage.
C. Additional requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
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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.
a. 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 the Services 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 be shown on the Certificate. If the deductible or
self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be
approved by City.
b. 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 Services.
b. Insurance must be maintained and evidence of insurance must be
provided for at least three (3) years after the expiration or termination of
this Agreement or completion of the Services, so long as commercially
available at reasonable rates.
C. 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 Effective
Date of this Agreement, Consultant must provide extended reporting coverage for a
minimum of three (3) years after the expiration or termination of this
Agreement or the completion of the Services. 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 Services under this
Agreement. City shall have the right to exercise, at Consultant's sole cost and
expense, any extended reporting provisions of the policy, if Consultant cancels or
does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to
City prior to the commencement of the Services under this Agreement.
4.4 All Policies Re uirc� ements.
a. 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.
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b. Verification of .coverage. Prior to beginning the Services 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: CITY
OF MENIFEE INITIAL HOTEL MARKET AND SITE ANALYSIS. The name and address
for Additional Insured endorsements,Certificates of Insurance and Notice of Cancellation is: City
of Menifee, 29844 Haun Road, Menifee, CA 92586. City must be endorsed as an additional
insured for liability arising out of ongoing and completed operations by or on behalf of Consultant.
C. Notice of Reduction in or Cancellation of Coverage. Consultant shall
provide written notice to City within ten(10) working days if (1) any of the required insurance
policies is terminated;(2)the limits of any of the required polices are reduced;or(3)the deductible
or self insured retention is increased.
d. 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 the Services 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 Consultant in the course of providing the 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 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 City. Additional insured status shall continue
for one (1) year after the expiration or termination of this Agreement or completion of the Services.
A certified endorsement must be attached to all policies stating that coverage is
primary insurance with respect to City and its officers, officials, employees, and volunteers, and
that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss
under the coverage.
e. 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.
During the term of this Agreement, only upon the prior express written
authorization of the 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.
f. Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified endorsements for each
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subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated
herein.
g. Variation. The Contract Administrator may,but is not required to, 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
City's interests are otherwise fully protected.
4.5 Remedies. In addition to any other remedies at law or equity 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:
a. Obtain such insurance and deduct and retain the amount of the premiums
for such insurance from any sums due under this Agreement;
b. 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
C. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a
professional standard of care for performance of the Services, to the fullest extent permitted by
law,Consultant shall indemnify,protect,defend(with counsel selected by City),and hold harmless
City and any and all of its officers, employees, officials, volunteers, and agents from and
against any and all claims, losses, costs, damages, expenses, liabilities, actions, causes of
action (whether in tort, contract, under statute, at law, in equity, or otherwise) charges,
awards, assessments, fines, or penalties of any kind (including reasonable consultant and expert
fees and expenses of investigation, costs of whatever kind and nature and, if Consultant fails to
provide a defense for City, the legal costs of counsel retained by City) and any judgment
(collectively, "Claims") 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
subcontractors (or any entity or individual that Consultant shall bear the legal liability thereof)
in the performance of professional services under this Agreement.
5.2 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 (with counsel selected by City), and hold harmless City, and any and
all of its officers,employees, officials,volunteers, and agents from and against any and all Claims,
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
subcontractors of Consultant.
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5.3 Limitation of Indemnification. The provisions of this Section 5 do not apply to
claims occurring as a result of City's sole or active negligence. The provisions of this Section 5
shall not release City from liability arising from gross negligence or willful acts or omissions of
City or any and all of its officers, officials, employees, and agents acting in an official capacity.
SECTION 6. STATUS OF CONSULTANT.
6.1 Iude2endent 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 the 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 the Services
rendered pursuant to this Agreement. The personnel performing the Services under this
Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and
control. Consultant shall not at any time or in any manner represent that it or any of its officers,
employees,or agents is in any manner officers,officials, employees,or agents of City. Consultant
shall not incur or have the power to incur any debt, obligation, or liability whatever against City,
or bind City in any manner. Except for the fees paid to Consultant as provided in this Agreement,
City shall not pay salaries,wages,or other compensation to Consultant for performing the Services
hereunder for City. City shall not be liable for compensation or indemnification to Consultant for
injury or sickness arising out of performing the Services hereunder. 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 Governing 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 City
or allow any person to perform the Services required under this Agreement unless such person is
properly documented and legally entitled to be employed within the United States. Any and all
work subject to prevailing wages, as determined by the Director of Industrial Relations of the State
of California, will be the minimum paid to all laborers, including Consultant's employee and
subcontractors. It is understood that it is the responsibility of Consultant to determine the correct
scale. The State Prevailing Wage Rates may be obtained from the California Department of
Industrial Relations ("DIR") pursuant to California Public Utilities Code, Sections 465, 466, and
467 by calling 415-703-4774. Appropriate records demonstrating compliance with such
requirement shall be maintained in a safe and secure location at all times, and readily available at
City's request. Consultant shall indemnify, defend, and hold City and its elected and appointed
boards, members, officials, officers, agents, representatives, employees, and volunteers harmless
from and against any liability, loss, damage, cost or expenses (including but not limited to
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reasonable attorneys' fees, expert witness fees, court costs, and costs incurred related to any
inquiries or proceedings) arising from or related to (i)the noncompliance by Consultant or any
party performing the Services of any applicable local, state, and/or federal law,including, without
limitation, any applicable federal and/or state labor laws (including, without limitation, the
requirement to pay state prevailing wages and hire apprentices); (ii)the implementation of Section
1781 of the Labor Code, as the same may be amended from time to time, or any other similar law;
and/or (iii) failure by Consultant or any party performing the Services to provide any required
disclosure or identification as required by Labor Code Section 1781, as the same may be amended
from time to time, or any other similar law. It is agreed by the Parties that, in connection with
performance of the Services, including, without limitation, any and all public works (as defined
by applicable law), Consultant shall bear all risks of payment or non-payment of prevailing wages
under California law and/or the implementation of Labor Code Section 1781, as the same may be
amended from time to time, and/or any other similar law. Consultant acknowledges and agrees
that it shall be independently responsible for reviewing the applicable laws and regulations and
effectuating compliance with such laws. Consultant shall require the same of all subcontractors.
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, and
subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of
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.
8.2 Termination by Consultant. Consultant may cancel this Agreement upon 30 days'
written notice to City.
8.3 Consequences of Termination. In the event of termination, Consultant shall be
entitled to compensation for the Services performed up to the 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 City in connection with this Agreement.
8.4 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
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authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant
for any otherwise reimbursable expenses incurred during the extension period.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by
all the Parties.
8.6 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 Consultant's proposal, without prior written approval of the
Contract Administrator. In the event that key personnel leave Consultant's employ, Consultant
shall notify City immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of this
Agreement and all provisions of this Agreement allocating liability between City and Consultant
shall survive the expiration or termination of this Agreement, for a period not to exceed three (3)
years..
8.8 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:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and
any other work product prepared by Consultant pursuant to this Agreement;
C. Retain a different consultant to complete the Services described in
Exhibit A; and/or
d. Charge Consultant the difference between the cost to complete the Services
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
Services.
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 City. Consultant hereby agrees to deliver those documents to City upon the expiration
or termination of this 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 City and are not necessarily suitable for any future or other use. Any
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use of such documents for other projects by City shall be without liability to Consultant. 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 Licensing-of Intellectual Property. This Agreement creates a non-exclusive
license for City to copy,use,modify,reuse,or sublicense any and all copyrights,designs, rights of
reproduction, and other intellectual property embodied in plans, specifications, studies,
drawings, estimates, test data, survey results, models, renderings, and other documents or works
of authorship fixed in any tangible medium of expression, including but not limited to, physical
drawings,digital renderings, or data stored digitally,magnetically,or in any other medium,which
are prepared or caused to be prepared by Consultant under this Agreement ("Documents and
Data"). Consultant shall require all subcontractors to agree in writing that City is granted a
non-exclusive license for any Documents and Data the subcontractor prepares under this
Agreement. Consultant represents and warrants that Consultant has the legal right to license any
and all Documents and Data. Consultant makes no such representation and warranty in regard to
Documents and Data which were prepared by design professionals other than Consultant or
provided to Consultant by the City. City shall not be limited in any way in its use of the
Documents and Data at any time, provided that any such use not within the purposes
intended by this Agreement shall be at City's sole risk.
9.3 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 the Services or expenditures and disbursements charged to 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 Consultant under this Agreement. All such records shall be maintained
in accordance with generally accepted accounting principles and shall be clearly identified and
readily accessible.
9.4 Inspection and Audit of Records. Any records or documents that Section 9.3 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 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), this 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 City, for a period of three (3) years after final payment under this Agreement.
SECTION 10. MISCELLANEOUS PROVISIONS.
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; provided, however, that the attorneys' fees
awarded pursuant to this Section shall not exceed the hourly rate paid by City for legal services
multiplied by the reasonable number of hours spent by the prevailing Party in the conduct of the
litigation. The court may set such fees in the same action or in a separate action brought for that
purpose.
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10.2 Applicable Law, Venue. The internal laws of the State of California shall govern
the interpretation and enforcement of this Agreement. 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 any provision of this Agreement is held invalid, the remainder of
this Agreement shall not be affected thereby and all other parts of this Agreement shall
nevertheless be in full force and effect.
10.4 Section Headings and Subheadings. The section headings and subheadings
contained in this Agreement are included for convenience only and shall not limit or otherwise
affect the terms of this Agreement.
10.5 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.
10.6 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.
10.7 Consultant Representative. All matters under this Agreement shall be handled for
Consultant by KEN K. Hira, President ("Consultant's Representative"). The Consultant's
Representative shall have full authority to represent and act on behalf of Consultant for all purposes
under this Agreement. The Consultant's Representative shall supervise and direct the Services,
using his best skill and attention, and shall be responsible for all means, methods, techniques,
sequences, and procedures and for the satisfactory coordination of all portions of the Services
under this Agreement.
10.8 City Contract Administration. This Agreement shall be administered by a City
employee, Gina Gonzalez, Economic Development Director ("Contract Administrator"). All
correspondence shall be directed to or through the Contract Administrator or his designee. The
Contract Administrator shall have the power to act on behalf of City for all purposes under this
Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction
or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
KOSMONT COMPANIES
Attn: Ken K. Hira, President
1601 N. Sepulveda Bl.,#382
Manhattan Beach, CA 90266
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29844 Haun Road
Menifee, CA 92586
Attn: Gina Gonzalez, Economic Development Director
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with a copy to:
City Clerk
City of Menifee
29844 Haun Road
Menifee, CA 92586
10.10 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 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 report/design responsibility.
10.11 Rights and Remedies. Except with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative
and the exercise by either Party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies for the same default
or any other default by the other Party.
10.12 lnteeration. This Agreement, including the scope of services 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. The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either Party by reason of the authorship of
this Agreement or any other rule of construction which might otherwise apply.
10.13 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.
10.14 Execution of Contract. The persons executing this Agreement on behalf of each of
the Parties hereto represent and warrant that(i) such Party is duly organized and existing, (ii)they
are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii)by so
executing this Agreement, such Party is formally bound to the provisions of this Agreement, and
(iv)that entering into this Agreement does not violate any provision of any other Agreement to
which said Party is bound.
10.15 Nondiscrimination. Consultant covenants that,by and for itself,its heirs,executors,
assigns,and all persons claiming under or through them,that in the performance of this Agreement
there shall be no discrimination against or segregation of, any person or group of persons on
account of any impermissible classification including, but not limited to, race, color, creed,
religion, sex,marital status, sexual orientation, national origin, or ancestry.
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10.16 No Third Party Beneficiaries. With the exception of the specific provisions set
forth in this Agreement, there are no intended third-party beneficiaries under this Agreement and
no such other third parties shall have any rights or obligations hereunder.
10.17 Nonliabilit, o�y Officers and Employees. No officer,official, employee, agent,
representative, or volunteer of City shall be personally liable to Consultant, or any successor in
interest, in the event of any default or breach by City or for any amount which may become due to
Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
10.18 No Undue Influence. Consultant declares and warrants that no undue influence or
pressure is used against or in concert with any officer or employee of City in connection with the
award,terms or implementation of this Agreement,including any method of coercion,confidential
financial arrangement, or financial inducement. No officer or employee of City shall receive
compensation, directly or indirectly, from Consultant, or from any officer, employee, or agent of
Consultant,in connection with the award of this Agreement or any work to be conducted as a result
of this Agreement.
10.19 No Benefit to Arise to City Employees. No member, officer, or employee of City,
or their designees or agents, and no public official who exercises authority over or has
responsibilities with respect to this Agreement during his/her tenure or for one(1)year thereafter,
shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds
thereof, for the Services to be performed under this Agreement.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as of the Effective Date.
CITY OF MENIFE CONS�,ULTANT
1
Armando G. Alitla, City Manager a J osmont, Chairman and CEO
Attest:
r
S ah A. Manrvaring, C' C rk
Y
Ken K. Hira,President
Aped as to Fo
[Note: 2 officer's signatures required if
Consultant is a corporation,unless provided
J rey T Ichin Ci Attorney with a certificate of secretary in-lieu]
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EXHIBIT A
SCOPE OF SERVICES
Services shall include,but are not limited to,City of Menifee initial hotel market and site analysis,
in the not to exceed amount of EIGHTEEN THOUSAND TWO HUNDRED DOLLARS AND
ZERO CENTS ($18,200.00),as further outlined in the following page(s).
EXHIBIT A
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kos illnon .
October 28,2019
Ms.Gina Gonzalez,MA
Economic Development Director
Office of Economic Development
City of Menifee
29844 Haun Road
Menifee,CA 92586
Re: Proposal for Services for Initial Hotel Market and Site Analysis
Dear Ms.Gonzalez:
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 Menifee ("Client", or"City") in connection with the preparation of an initial
Hotel Market and Site Analysis("Analysis)for potential new hotel(s)within the City.
This proposal serves as an Agreement when executed and returned by Clientto Kosmont.
1.BACKGROUND AND OBJECTIVE
The City of Menifee desires Consultants assistance in evaluating the market for a new
hotel(s)within the City. The City also desires that Consultant conduct a preliminary review
of three potential sites for suitability for hotel uses.
II.SCOPE OF SERVICES
Task 1:Background Research and Kickoff Meeting
Consultant and Client will conduct a kickoff meeting and tour of the area. Consultant will
complete an Initial review of market information Including available data on the
performance of existing hotels in the market area. The initial information overview will
also include a review of appropriate information from prior hotel and research reports
performed in the market area.
Task 2:Hotel Market Review
Consultant will review hotel supply offerings for the local market and map and describe
competitive hotel offerings. Consultant will analyze historical trends in the local hotel
market, Including the number of rooms, occupancy rates, and average daily rate (ADR)
and room tax collection trends. Consultant will identify a set of competitive hotels in the
1601 N.Sepulveda Blvd,A382,Manhattan Beach,CA 90256 1 ph 424.297.1070 1 www kosmonl cam
EXHIBIT A
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City or Menifee
Proposal/a Services—India/Hole/Market and Site Analysis
October 28,2019
Page 2 of 8
market and analyze occupancy,ADR's,and RevPAR for this competitive set, based on
Smith Travel Research("STR")data.
Task 3:Review of Potential Hotel Locations
Consultant will discuss with the City up to three potential hotel locations that may be
appropriate for the development of a hotel(s). Consultant will provide summary
observations on its opinion of the suitability of the hotel locations.
Task 4:Summary Presentation
Consultant will prepare a presentation summarizing its findings from Task 1 through Task
3. Consultant will provide Client a draft version of the summary presentation for Client's
comments and,as appropriate,Consultant will incorporate Client's comments into a final
summary presentation.
III.SCHEDULE AND REQUIRED DATA
Consultant is prepared to commence work upon receipt of executed Agreement and will
deliver draft presentation to Client within four(4)to six(6)weeks of the same. Client will
provide Consultant with all existing relevant project data.
IV.COMPENSATION
Compensation for Tasks 1 through 4 is estimated at$17,500 for professional services
(hourly)fees at Consultant's billing rates as shown on Attachment A. Future increases In
budget will require approval by Client in advance. Budget may be increased by Client at
any time.
Consultant anticipates a single consolidated round of Client comments and revisions on
draft work product before Kosmont provides a final version of work product, 9 necessary,
additional rounds of comments and revisions can be accommodated on an hourly basis.
Consultant's attendance or participation at any publicly noticed (e.g., City Council,
Planning Commission, Public Agency Board, other) meeting requested by Client is in
addition to compensation for Tasks 1 through 4 and will be billed at the professional
services(hourly)fees as shown on Attachment A.
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 the current IRS mileage reimbursement rate), professional printing,
conference calls,and delivery charges for messenger and overnight packages at actual
KOSMONT COMPANIES
1601 N Sepulveda Blvd#382,Manhattan Beach,CA 90266 1 ph 424 207.1070 I www.kosmonl oom
2671/031858-0001
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city of Menirx
Proposal for Services—Initial Hotel Market and Site Analysis
October 28,2019
Page 3 of 8
cost. Unless otherwise agreed to 1n 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(4.0016)of Consultant's
monthly professional service fees incurred.Any unpaid invoices after 30 days shall accrue
interest at the rate of 10%per annum.
For the convenience of Kosmont's clients,we offer a secure credit card payment service.
The credit card payment link is: his://kosrnont.paidyet.com and there are two ways to
make a secure credit card payment:
1. Fill in the "Make a Payment' form when you go to the link
(hltps:llkosnynt,Paidvat.com),or
2 Call Kosmont Companies'accounting desk(Ms.Charo Martinez;(424)297-1072)
to make a credit card payment
Consultant Is prepared to commence work upon receipt of executed Agreement.
DISCLOSURE: Compensation Far possible future tfansac ion 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 for such services. This
disclosure is not intended to commit the Client.
When assignments involve real estate/property brokerage services, such transaction-
based services are typically provided by Kosmont Real Estate Services,Inc.dba Kosmont
Realty("KR")is licensed by the State of California Department of Real Estate(License#
02058445). Compensation to KR is typically paid through commissions for property sale
transactions, lease transactions and success/broker fees. KR also provides Broker
Opinions of Value("BOV'7 services on a fixed fee basis.
When assignments involve public finance services on behalf of a public agency, such
municipal advisory services are provided by Kosmont Transactions Services,Inc.("KTS").
KTS is registered with the Securities and Exchange Commission(CIK#0001769359)and
the Municipal Securities Rulemaking Board as a Municipal Advisor(ID#K1256).
SEC registration does not constitute an endorsement of the firm by the Commission or
state securities regulators.
KOSMONT COMPANIES
1601 N.Sepulveda Blvd,#382,Manhattan Beech,CA 90266 1 ph 424.2971070 1 www kosmont can
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City of Menifx
Proposal for Services—Initial Hotel Market and Site Analysis
October28,2019
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 (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 deckle 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.Neitherthis 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
KOSMONT COMPANIES
1601 N Sepulveda Blvd tt362,Manhattan Beach,CA 90266 1 ph 424.297.1070 1 wwwAcernont oom
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tarty of Mentfee
Roposa/fa Services—Initial Note/Market and Site Analysis
October 28,2010
Page 5 of 8
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 teleeopier,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
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.
KOSMONT COMPANIES
1601 N SepuNeda Blvd 0382,Manhattan Beach,CA 90260 1 ph 424.297.1070 I www.koamoN.com
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City of Menifee
Proposal fa Services—Initial Hotel Market and Site Analysis
October28,2019
Page 6 of 8
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 Consuftant.
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.
[signature page follows]
KOSMONT COMPANIES
1601 N.Sepulveda Blvd#382,Manhattan Beach,CA 90266 1 ph 424 297.1070 I wwkosmont can
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City ofMen/fee
Proposal for Services-Initial Hotel Market and Site Analysis
October28,2019
Pape 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 2019
City of Menifee Kosmont&Associates,Inc.
doing business as"Kosmont Companies"
By: By:
(Signature) (Signature)
Name-- Name:Ken K. Hire
(Print Name)
Its: Its: President
(Title)
KOSMONT COMPANIES
1601 N.Sepulveda Blvd.M302,Manhattan Beach,CA 90250 1 ph 424.297.1070 1 www.Nowont.oem
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City of Menefee
Proposal for Services-Initial Note/Market and Site Analysis
October 28,2019
Page 8 of 8
ATTACHMENT A
Kosmont Companies
2019 Public Agency Fee Schedule
Professional Services
Chairman&CEO $375.001hour
President $345.00/hour
Senior Vice President/Senior Advisor $305.00/hour
Vice President $210.00/hour
Senior Project Analyst $195.00/hour
Project AnalystlProject 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 WII be computed at four percent (4.0 OA) of monthly Kosmont
Companies proressional service fees incurred;plus
2) Out-of-pocket expenditures, such as travel and mileage, professional printing,
and delivery charges for messenger and overnight packages wilt be charged at
cost.
3) If Kosmont retains Third Party Vendor(s) for Client (with Client's advance
approvaD,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 wilt be billed at the professional services (hourly) fees as shown on this
Attachment A,
• Charges for CourtlDeoosition/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/n effJ ci unill December 31, 2019.
KOSMONT COMPANIES
1601 N Sepulveda Blvd 0382,Manhattan Beech,CA 90260 1 ph 424 297.1070 1 www,kosmont can
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