AGR-7631.A - KOSMONT & ASSOCIATES INC - PROFESSIONAL SERVICES AGREEMENT FOR ECONOMIC DEVELOPMENT ADVISORY SERVICES - FEB 27, 2024DocuSign Envelope ID:980EEAE1-001 9-4447-81 65-1 61 1 71 03 36 75
AGR-7631.A
PROFESSIONAL SERVICES AGREEMENT
Economic Development Advisory Services]
THIS PROFESSIONAL SERVICES AGREEMENT (the "Agreement") is made at
Orange, California, on this 27th day of February 2024 (the "Effective Date") by
and between the CITY OF ORANGE, a municipal corporation ("City"), and KOSMONT &
ASSOCIATES, INC., a California corporation("Contractor"), who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement,
Contractor shall provide to the reasonable satisfaction of City the services set forth in Exhibit"A,"
which is attached hereto and incorporated herein by reference. As a material inducement to City
to enter into this Agreement,Contractor represents and warrants that it has thoroughly investigated
and considered the scope of services and fully understands the difficulties and restrictions in
performing the work. The services which are the subject of this Agreement are not in the usual
course of City's business and City relies on Contractor's representation that it is independently
engaged in the business of providing such services and is experienced in performing the work.
Contractor shall perform all services in a manner reasonably satisfactory to City and in a manner
in conformance with the standards of quality normally observed by an entity providing such
services to a municipal agency. All services provided shall conform to all federal, state and local
laws, rules and regulations and to the best professional standards and practices. The terms and
conditions set forth in this Agreement shall control over any terms and conditions in Exhibit "A"
to the contrary.
2. Compensation and Fees.
a. Contractor's total compensation for all services performed under this
Agreement, shall not exceed FIFTY THOUSAND DOLLARS and 00/100 ($50,000.00) without
the prior written authorization of City.
b. The above compensation shall include all costs, including, but not limited
to, all clerical, administrative, overhead, insurance, reproduction, telephone, travel, auto rental,
subsistence and all related expenses.
3. Payment.
a. As scheduled services are completed, Contractor shall submit to City an
invoice for the services completed, authorized expenses and authorized extra work actually
performed or incurred.
b. All such invoices shall state the basis for the amount invoiced, including
services completed, the number of hours spent and any extra work performed.
c.Payment shall constitute payment in full for all services, authorized costs
and authorized extra work covered by that invoice.
DocuSign Envelope ID:980EEAE1-0019-4447-8165-1 B1171033B75
4.Change Orders. No payment for extra services caused by a change in the scope
or complexity of work, or for any other reason, shall be made unless and until such extra services
and a price therefor have been previously authorized in writing and approved by City as an
amendment to this Agreement. City's Project Manager is authorized to approve a reduction in the
services to be performed and compensation therefor. All amendments shall set forth the changes
of work,extension of time,and/or adjustment of the compensation to be paid by City to Contractor
and shall be signed by the City's Project Manager, City Manager or City Council, as applicable.
5. Licenses. Contractor represents that it and any subcontractors it may engage,
possess any and all licenses which are required under state or federal law to perform the work
contemplated by this Agreement and that Contractor and its subcontractors shall maintain all
appropriate licenses, including a City of Orange business license, at its cost, during the
performance of this Agreement.
6. Independent Contractor. At all times during the term of this Agreement,
Contractor shall be an independent contractor and not an employee of City. City shall have the
right to control Contractor only insofar as the result of Contractor's services rendered pursuant to
this Agreement. City shall not have the right to control the means by which Contractor
accomplishes services rendered pursuant to this Agreement. Contractor shall, at its sole cost and
expense, furnish all facilities, materials and equipment which may be required for furnishing
services pursuant to this Agreement. Contractor shall be solely responsible for, and shall
indemnify, defend and save City harmless from all matters relating to the payment of its
subcontractors, agents and employees, including compliance with social security withholding and
all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever.
Contractor acknowledges that it and any subcontractors, agents or employees employed by
Contractor shall not,under any circumstances,be considered employees of City,and that they shall
not be entitled to any of the benefits or rights afforded employees of City,including,but not limited
to, sick leave, vacation leave, holiday pay, Public Employees Retirement System benefits, or
health, life, dental, long-term disability or workers' compensation insurance benefits.
7. Contractor Not Agent. Except as City may specify in writing, Contractor shall
have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Contractor shall have no authority, express or implied, to bind City to any obligation
whatsoever.
8. Designated Persons. Only those qualified persons authorized by City's Project
Manager, or as designated in Exhibit"A,"shall perform work provided for under this Agreement.
It is understood by the parties that clerical and other nonprofessional work may be performed by
persons other than those designated.
9. Assignment or Subcontracting. No assignment or subcontracting by Contractor
of any part of this Agreement or of funds to be received under this Agreement shall be of any force
or effect unless the assignment has the prior written approval of City. City may terminate this
Agreement rather than accept any proposed assignment or subcontracting. Such assignment or
subcontracting may be approved by the City Manager or his/her designee.
2
DocuSign Envelope ID:980EEAE1-0019-4447-8165-1B1171033B75
10. Time of Completion. Except as otherwise specified in Exhibit "A," Contractor
shall commence the work provided for in this Agreement within five(5)days of the Effective Date
of this Agreement and diligently prosecute completion of the work.
11. Time Is of the Essence. Time is of the essence in this Agreement. Contractor shall
do all things necessary and incidental to the prosecution of Contractor's work.
12. Reserved.
13. Delays and Extensions of Time. Contractor's sole remedy for delays outside its
control, other than those delays caused by City, shall be an extension of time. No matter what the
cause of the delay,Contractor must document any delay and request an extension of time in writing
at the time of the delay to the satisfaction of City. Any extensions granted shall be limited to the
length of the delay outside Contractor's control. If Contractor believes that delays caused by City
will cause it to incur additional costs, it must specify, in writing, why the delay has caused
additional costs to be incurred and the exact amount of such cost at the time the delay occurs. No
additional costs can be paid that exceed the not to exceed amount stated in Section 2.a, above,
absent a written amendment to this Agreement.
14. Products of Contractor. The documents, studies, evaluations, assessments,
reports, plans, citations, materials, manuals, technical data, logs, files, designs and other products
produced or provided by Contractor for this Agreement shall become the property of City upon
receipt. Contractor shall deliver all such products to City prior to payment for same. City may
use, reuse or otherwise utilize such products without restriction.
15. Equal Employment Opportunity. During the performance of this Agreement,
Contractor agrees as follows:
a.Contractor shall not discriminate against any employee or applicant for
employment because of race, color, religion, sex, national origin,mental or physical disability, or
any other basis prohibited by applicable law. Contractor shall ensure that applicants are employed,
and that employees are treated during employment, without regard to their race, color, religion,
sex, national origin, mental or physical disability, or any other basis prohibited by applicable law.
Such actions shall include,but not be limited to the following: employment,upgrading,demotion
or transfer,recruitment or recruitment advertising,layoff or termination,rates of pay or other forms
of compensation and selection for training, including apprenticeship. Contractor agrees to post in
conspicuous places, available to employees and applicants for employment, a notice setting forth
provisions of this non-discrimination clause.
b. Contractor shall, in all solicitations and advertisements for employees
placed by, or on behalf of Contractor, state that all qualified applicants will receive consideration
for employment without regard to race, color, religion, sex, national origin, mental or physical
disability, or any other basis prohibited by applicable law.
3
DocuSign Envelope ID:980EEAE1-0019-4447-8165-1B1171033B75
C.Contractor shall cause the foregoing paragraphs (a)and(b)to be inserted in
all subcontracts for any work covered by this Agreement, provided that the foregoing provisions
shall not apply to subcontracts for standard commercial supplies or raw materials.
16. Conflicts of Interest. Contractor agrees that it shall not make, participate in the
making, or in any way attempt to use its position as a consultant to influence any decision of City
in which Contractor knows or has reason to know that Contractor, its officers, partners, or
employees have a financial interest as defined in Section 87103 of the Government Code.
Contractor further agrees that it shall not be eligible to work as the design/build firm for the project
that is the subject of this Agreement.
17. Indemnity.
a. To the fullest extent permitted by law, Contractor agrees to indemnify,
defend and hold City, its City Council and each member thereof, and the officers, officials, agents
and employees of City(collectively the "Indemnitees") entirely harmless from all liability arising
out of:
1) Any and all claims under workers' compensation acts and other
employee benefit acts with respect to Contractor's employees or Contractor's subcontractor's
employees arising out of Contractor's work under this Agreement, including any and all claims
under any law pertaining to Contractor or its employees' status as an independent contractor and
any and all claims under Labor Code section 1720 related to the payment of prevailing wages for
public works projects; and
2) Any claim, loss, injury to or death of persons or damage to property
caused by any act, neglect, default, or omission other than a professional act or omission of
Contractor, or person, firm or corporation employed by Contractor, either directly or by
independent contract, including all damages due to loss or theft sustained by any person, firm or
corporation including the Indemnitees, or any of them, arising out of, or in any way connected
with the work or services which are the subject of this Agreement, including injury or damage
either on or off City's property; but not for any loss, injury, death or damage caused by the active
negligence or willful misconduct of City. Contractor, at its own expense, cost and risk, shall
indemnify any and all claims, actions, suits or other proceedings that may be brought or instituted
against the Indemnitees on any such claim or liability covered by this subparagraph, and shall pay
or satisfy any judgment that may be rendered against the Indemnitees, or any of them, in any
action, suit or other proceedings as a result of coverage under this subparagraph.
b. To the fullest extent permitted by law, and as limited by California Civil
Code 2782.8, Contractor agrees to indemnify and hold Indemnitees harmless from all liability
arising out of any claim, loss, injury to or death of persons or damage to property to the extent
caused by its negligent professional act or omission in the performance of professional services
pursuant to this Agreement.
4
DocuSign Envelope ID:980EEAE1-0019-4447-8165-181171033875
C.Except for the Indemnitees, the indemnifications provided in this
Agreement shall not be construed to extend any third party indemnification rights of any kind to
any person or entity which is not a signatory to this Agreement.
d. The indemnities set forth in this section shall survive any closing,
rescission, or termination of this Agreement, and shall continue to be binding and in full force for
a period not to exceed four(4)years.
18. Insurance.
a. Contractor shall carry workers' compensation insurance as required by law
for the protection of its employees during the progress of the work. Contractor understands that it
is an independent contractor and not entitled to any workers' compensation benefits under any
City program.
b. Contractor shall maintain during the life of this Agreement the following
minimum amount of comprehensive general liability insurance or commercial general liability
insurance: the greater of (1) One Million Dollars ($1,000,000) per occurrence; or (2) all the
insurance coverage and/or limits carried by or available to Contractor. Said insurance shall cover
bodily injury, death and property damage and be written on an occurrence basis.
c.Contractor shall maintain during the life of this Agreement, the following
minimum amount of automotive liability insurance: the greater of(1) a combined single limit of
One Million Dollars ($1,000,000); or (2) all the insurance coverage and/or limits carried by or
available to Contractor. Said insurance shall cover bodily injury, death and property damage for
all owned, non-owned and hired vehicles and be written on an occurrence basis.
d. Any insurance proceeds in excess of or broader than the minimum required
coverage and/or minimum required limits which are applicable to a given loss shall be available
to City. No representation is made that the minimum insurance requirements of this Agreement
are sufficient to cover the obligations of Contractor under this Agreement.
e. Each policy of general liability and automotive liability shall provide that
City, its officers, officials, agents, and employees are declared to be additional insureds under the
terms of the policy, but only with respect to the work performed by Contractor under this
Agreement. A policy endorsement to that effect shall be provided to City along with the certificate
of insurance. In lieu of an endorsement,City will accept a copy of the policy(ies)which evidences
that City is an additional insured as a contracting party. The minimum coverage required by
Subsection 1 8.b and c, above, shall apply to City as an additional insured. Any umbrella liability
insurance that is provided as part of the general or automobile liability minimums set forth herein
shall be maintained for the duration of the Agreement.
f.Contractor shall maintain during the life of this Agreement professional
liability insurance covering errors and omissions arising out of the performance of this Agreement
with a minimum limit of One Million Dollars ($1,000,000) per claim. Contractor agrees to keep
5
Uocusign Envelope ID:980EEAE1-0019-4447-8165-1 B1171033B75
such policy in force and effect for at least five (5) years from the date of completion of this
Agreement.
g. The insurance policies maintained by Contractor shall be primary insurance
and no insurance held or owned by City shall be called upon to cover any loss under the policy.
Contractor will determine its own needs in procurement of insurance to cover liabilities other than
as stated above.
h. Before Contractor performs any work or prepares or delivers any materials,
Contractor shall furnish certificates of insurance and endorsements, as required by City,
evidencing the aforementioned minimum insurance coverages on forms acceptable to City,which
shall provide that the insurance in force will not be canceled or allowed to lapse without at least
ten(10) days' prior written notice to City.
i.Except for professional liability insurance coverage that may be required by
this Agreement, all insurance maintained by Contractor shall be issued by companies admitted to
conduct the pertinent line of insurance business in California and having a rating of Grade A or
better and Class VII or better by the latest edition of Best Key Rating Guide. In the case of
professional liability insurance coverage, such coverage shall be issued by companies either
licensed or admitted to conduct business in California so long as such insurer possesses the
aforementioned Best rating.
j Contractor shall immediately notify City if any required insurance lapses or
is otherwise modified and cease performance of this Agreement unless otherwise directed by City.
In such a case, City may procure insurance or self-insure the risk and charge Contractor for such
costs and any and all damages resulting therefrom, by way of set-off from any sums owed
Contractor.
k. Contractor agrees that in the event of loss due to any of the perils for which
it has agreed to provide insurance, Contractor shall look solely to its insurance for recovery.
Contractor hereby grants to City,on behalf of any insurer providing insurance to either Contractor
or City with respect to the services of Contractor herein,a waiver of any right to subrogation which
any such insurer may acquire against City by virtue of the payment of any loss under such
insurance.
1.Contractor shall include all subcontractors, if any, as insureds under its
policies or shall furnish separate certificates and endorsements for each subcontractor to City for
review and approval. All coverages for subcontractors shall be subject to all of the requirements
stated herein.
19. Termination. City may for any reason terminate this Agreement by giving
Contractor not less than five (5) days' written notice of intent to terminate. Upon receipt of such
notice, Contractor shall immediately cease work, unless the notice from City provides otherwise.
Upon the termination of this Agreement, City shall pay Contractor for services satisfactorily
provided and all allowable reimbursements incurred to the date of termination in compliance with
6
DocuSign Envelope ID:980EEAE1-0019-444 7-8165-1 B1171033875
this Agreement, unless termination by City shall be for cause, in which event City may withhold
any disputed compensation. City shall not be liable for any claim of lost profits.
20. Maintenance and Inspection of Records. In accordance with generally accepted
accounting principles, Contractor and its subcontractors shall maintain reasonably full and
complete books, documents, papers, accounting records, and other information (collectively, the
records")pertaining to the costs of and completion of services performed under this Agreement.
City and its authorized representatives shall have access to and the right to audit and reproduce
any of Contractor's records regarding the services provided under this Agreement. Contractor shall
maintain all such records for a period of at least three (3)years after termination or completion of
this Agreement. Contractor agrees to make available all such records for inspection or audit at its
offices during normal business hours and upon three(3)days' notice from City,and copies thereof
shall be furnished if requested.
21. Compliance with all Laws/Immigration Laws.
a. Contractor shall be knowledgeable of and comply with all local, state and
federal laws which may apply to the performance of this Agreement.
b. If the work provided for in this Agreement constitutes a"public works," as
that term is defined in Section 1720 of the California Labor Code,for which prevailing wages must
be paid, to the extent Contractor's employees will perform any work that falls within any of the
classifications for which the Department of Labor Relations of the State of California promulgates
prevailing wage determinations, Contractor hereby agrees that it, and any subcontractor under it,
shall pay not less than the specified prevailing rates of wages to all such workers. The general
prevailing wage determinations for crafts can be located on the website of the Department of
Industrial Relations (www.dir.ca.gov/DLSR). Additionally,to perform work under this Contract,
Contractor must meet all State registration requirements and criteria,including project compliance
monitoring.
c.Contractor represents and warrants that it:
1) Has complied and shall at all times during the term of this
Agreement comply, in all respects, with all immigration laws, regulations, statutes, rules, codes,
and orders, including, without limitation, the Immigration Reform and Control Act of 1986
IRCA); and
2) Has not and will not knowingly employ any individual to perform
services under this Agreement who is ineligible to work in the United States or under the terms of
this Agreement; and
3) Has properly maintained, and shall at all times during the term of
this Agreement properly maintain, all related employment documentation records including,
without limitation, the completion and maintenance of the Form 1-9 for each of Contractor's
employees; and
7
DocuSign Envelope ID:980EEAE1-0019-4447-8165-1 B1171033B75
4) Has responded, and shall at all times during the term of this
Agreement respond, in a timely fashion to any government inspection requests relating to
immigration law compliance and/or Form I-9 compliance and/or worksite enforcement by the
Department of Homeland Security, the Department of Labor, or the Social Security
Administration.
d. Contractor shall require all subcontractors or subconsultants to make the
same representations and warranties as set forth in Subsection 21.c.
e.Contractor shall, upon request of City, provide a list of all employees
working under this Agreement and shall provide,to the reasonable satisfaction of City,verification
that all such employees are eligible to work in the United States. All costs associated with such
verification shall be borne by Contractor. Once such request has been made, Contractor may not
change employees working under this Agreement without written notice to City, accompanied by
the verification required herein for such employees.
f.Contractor shall require all subcontractors or sub-consultants to make the
same verification as set forth in Subsection 21.e.
g. If Contractor or subcontractor knowingly employs an employee providing
work under this Agreement who is not authorized to work in the United States, and/or fails to
follow federal laws to determine the status of such employee,that shall constitute a material breach
of this Agreement and may be cause for immediate termination of this Agreement by City.
h. Contractor agrees to indemnify and hold City, its officers, officials, agents
and employees harmless for,of and from any loss, including but not limited to fines,penalties and
corrective measures City may sustain by reason of Contractor's failure to comply with said laws,
rules and regulations in connection with the performance of this Agreement.
22. Governing Law and Venue. This Agreement shall be construed in accordance
with and governed by the laws of the State of California and Contractor agrees to submit to the
jurisdiction of California courts. Venue for any dispute arising under this Agreement shall be in
Orange County, California.
23. Integration. This Agreement constitutes the entire agreement of the parties. No
other agreement,oral or written,pertaining to the work to be performed under this Agreement shall
be of any force or effect unless it is in writing and signed by both parties. Any work performed
which is inconsistent with or in violation of the provisions of this Agreement shall not be
compensated.
24. Notice. Except as otherwise provided herein, all notices required under this
Agreement shall be in writing and delivered personally, by e-mail, or by first class U.S. mail,
postage prepaid, to each party at the address listed below. Either party may change the notice
address by notifying the other party in writing. Notices shall be deemed received upon receipt of
same or within three (3) days of deposit in the U.S. Mail,whichever is earlier. Notices sent by e-
mail shall be deemed received on the date of the e-mail transmission.
8
DocuSign Envelope ID:980EEAE1-0019-4447-8165-1B1171033B75
CONTRACTOR" CITY"
Kosmont&Associates, Inc. City of Orange
1601 N. Sepulveda Blvd., #382 300 E. Chapman Avenue
Manhattan Beach, CA 90266 Orange, CA 92866-1591
Attn.: Ken K. Hira Attn.: City Manager
Telephone: (949)226-0288 Telephone: (714) 744-2222
E-Mail: kosmont@kosmont.com E-Mail: cminfo@cityoforange.org
25. Counterparts. This Agreement may be executed in one or more counterparts,each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Signatures transmitted via facsimile and electronic mail shall have the same effect as
original signatures.
Remainder of page intentionally left blank; signatures on next page]
9
DocuSign Envelope ID:980EEAE1-0019-4447-8165-1 B1171033B75
IN WITNESS of this Agreement, the parties have entered into this Agreement as of the
year and day first above written.
CONTRACTOR" CITY"
KOSMONT&ASSOCIATES, INC., CITY OF ORANGE, a municipal corporation
a California corporation
DocuSipned by: DocuSigned by:
B Lk WM
B
V L tt
y: OAOddlRn7Rnrdd7 J \
Printed Name: Ken K. Hira Daniel R. Slater, Mayor
Title: President
DocuSigned by:
Witifibt
By: R4FAn Ad RrdF'1 ATTEST:
Printed Name: Kelly Aguilar
DocuSlyned by:
Title: Corporate Secretary
DancDrBABEF^3A
Pamela Coleman, City Clerk
APPROVED AS TO FORM:
DocuSlgned by:
ova.604
rnran7nrnA7SARA
Nathalie Adourian
Senior Assistant City Attorney
NOTE:City requires the following signature(s) on behalf of the Contractor:
1)the Chairman of the Board, the President or a Vice-President,AND (2)the
Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary
or an Assistant Treasurer. If only one corporate officer exists or one corporate
officer holds more than one corporate office,please so indicate. OR
The corporate officer named in a corporate resolution as authorized to enter
into this Agreement. A copy of the corporate resolution, certified by the
Secretary close in time to the execution of the Agreement,must be provided to
City.
10
DocuSign Envelope ID:980EEAE1-0019-4447-8165-161171033B75
EXHIBIT "A"
SCOPE OF SERVICES
Beneath this sheet.]
DocuSign Envelope ID:980EEAE1-0019-4447-8165-1B1171033B75
kosmon .
companies
since 1986
January 30, 2024
Aaron Schulze
Economic Development Manager
City of Orange
300 E Chapman Avenue
Orange, CA 92866
Re: Proposal for Economic Development Advisory Services
Dear Mr. Schulze:
Kosmont & Associates, Inc. doing business as Kosmont Companies ("Consultant" or "Kosmont")
is pleased to present this proposal to the City of Orange ("City" or "Client") for Economic
Development Advisory Services. This proposal serves as an Agreement when executed and
returned by Client to Kosmont.
I. BACKGROUND AND OBJECTIVE
Kosmont understands that the City is initiating a visioning process with a third-party urban design
and planning consultant and the property owners within a potential "resort district" along West
Katella Avenue in the City. In this context, the City has expressed interest in assistance from
Kosmont in the form of economic analysis to ground the visioning process in development
feasibility.
Additionally, the City has expressed interest in other economic development advisory services
from Kosmont on an as-needed basis. Kosmont proposes the following Scope of Services
accordingly.
II. SCOPE OF SERVICES
Approach to Tasks: The prospective assignment and consulting services that Kosmont will
provide will be of a relatively limited scope and duration, and advisory in nature. Kosmont will be
making recommendations only, which advise the Client and jurisdictions, including their elected
officials, appointed officials, and staff, which they can accept or reject by. None of Kosmont's staff
will act in a capacity as an elected official, nor appointed official, nor as staff, nor as serving in a
designated" position.
Kosmont Companies
Mailing Address:1601 N.Sepulveda Blvd.,#382 424)297-1070 Physical Address:2301 Rosecrans Ave,Ste.4140
Manhattan Beach,CA 90266 www.kosmont.com El Segundo,CA 90245
DocuSign Envelope ID:980EEAE1-0019-4447-8165-1B1171033B75
City of Orange
Kosmont Proposal for Economic Development Advisory
January 30,2024
kosmon
companies
Task 1: Development Feasibility Analysis
Kosmont will participate virtually in a coordination meeting with City staff and the City's urban
design and planning consultant to kick off the assignment. Kosmont will participate in up to two
2) in-person visioning workshops or briefings with property owners to be scheduled by City staff
and the City's urban design and planning consultant. Kosmont will be available to participate in
up to three (3) additional briefings in a virtual format. Kosmont will participate in the workshops /
briefings and provide commentary from a market, economic, and financial feasibility perspective.
Based on concept planning and/or other visioning materials prepared by the City's urban design
and planning consultant, Kosmont will prepare economic analysis to illustrate key development
feasibility considerations for the benefit of property owners and the community within the potential
resort district. Feasibility analysis will be summarized in Microsoft PowerPoint format.
Task 2: As-Needed Economic Development Advisory Services
At the City's request and subject to budget authorization/availability, Kosmont will be available to
perform additional economic development services as follows:
Marketing / outreach to retailers, businesses, developers, hotels, and private investment
for potential opportunity sites
Developer request for qualifications/ proposals (RFQ/P) preparation /distribution, as may
be appropriate
Pro forma evaluation /financial feasibility analysis for potential projects
Project fiscal impact and economic benefit analysis
Developer negotiation assistance, financial sources-and-uses analysis, public-private
transaction structuring
Assistance with formulation and implementation of City-owned asset strategies
Pursuit and execution of potential economic incentives, funding sources, and/or financing
structures in the context of potential public-private transactions, such as D.O.R.®, site
specific tax revenue pledges, and/or other tools
Presentations to City Council, Planning Commission, and/or other bodies as appropriate
Other economic development tasks as needed.
III. SCHEDULE AND REQUIRED DATA
Consultant is prepared to commence work upon receipt of an executed Agreement. Kosmont will
participate in up to two (2) in-person visioning workshops or briefings with property owners as
they are scheduled. Kosmont's economic analysis will be based on input received during the
workshops and visioning materials produced by the City's urban design and planning consultant.
IV. COMPENSATION
Compensation for Task 1 is estimated at $25,000 for professional services (hourly) fees to be
billed to the City at Consultant's billing rates as shown on Attachment A.
Kosmont Companies 2 I P a g e
424)297-1070
www.kosmont.com
DocuSign Envelope ID:980EEAE1-001 9-444 7-81 65-1 61 1 71 033B75
City of Orange
FKosmont Proposal for Economic Development AdvisoryAIJanuary30,2024
kosmon
companies
Additional work in accordance with Task 2 would require authorization by the City, time and
budget for which would be outlined by Kosmont for City consideration in advance. Budget may be
increased by City request at any point in 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.
For the convenience of Kosmont's clients, we offer a secure credit card payment service. The
credit card payment link is: https://kosmont.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 (https://kosmont.paidyet.com),
or
2. Call Kosmont Companies' accounting desk (Ms. Reny Sultan; (424) 297-1072) to make a
credit card payment
Consultant is prepared to commence work upon receipt of executed Agreement.
DISCLOSURE: Compensation for possible future transaction-based services or brokerage
services.
The following is being provided solely as an advance disclosure of possible real estate brokerage
and finance services and potential compensation 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")
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 Financial Services (KFS). KFS is an independent
Registered Municipal Advisor with the Securities and Exchange Commission and the Municipal
Securities Rulemaking Board.
SEC registration does not constitute an endorsement of the firm by the Commission or state
securities regulators.
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
Kosmont Companies 3 I P 3 g e
424)297-1070
www.kosmont.com
DocuSign Envelope ID:980EEAE1-0019-4447-8165-1 B1171033B75
kosmon
City of Orange
Kosmont Proposal for Economic Development Advisory
January 30,2024
companies
Los Angeles, California. Each of the parties to such arbitration proceeding shall be entitled to
take up to five depositions with document requests. The provisions of Section 1283.05 (except
subdivision (e) thereof) of the California Code of Civil Procedure are incorporated by reference
herein, except to the extent they conflict with this Agreement, in which case this Agreement is
controlling. If the matter is heard by only one arbitrator, such arbitrator shall be a member of the
State Bar of California or a retired judge. If the matter is heard by an arbitration panel, at least
one member of such panel shall be a member of the State Bar of California or a retired judge.
The arbitrator or arbitrators shall decide all questions of law, and all mixed questions of law and
fact, in accordance with the substantive law of the State of California to the end that all rights and
defenses which either party may have asserted in a court of competent jurisdiction shall be fully
available to such party in the arbitration proceeding contemplated hereby. The arbitrator and
arbitrators shall set forth and deliver their findings of fact and conclusions of law with the delivery
of the arbitration award. Judgment upon the award rendered shall be final and non-appealable
and may be entered in any court having jurisdiction.
C. Attorneys' Fees. In the event of any legal action, arbitration, or proceeding arising out of
an alleged breach of this Agreement, the party prevailing in such legal action, arbitration, or
proceeding shall be entitled to recover reasonable attorneys' fees, expenses and costs, as well
as all actual attorneys' fees, expenses and cost incurred in enforcing any judgment entered.
D. Authority. Each of the parties executing this Agreement warrants that persons duly
authorized to bind each such party to its terms execute this Agreement.
E. Further Actions. The parties agree to execute such additional documents and take such
further actions as may be necessary to carry out the provisions and intent of this Agreement.
F.Assignment. Neither this Agreement nor any of the rights or obligations hereunder may
be assigned by either party without the prior written consent of the other party.
G. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
H. Entire Agreement; Amendments and Waivers. This Agreement contains the entire
agreement between the parties relating to the transactions contemplated hereby and any and all
prior discussions, negotiations, commitments and understanding, whether written or oral, related
hereto are superseded hereby. No addition or modification of any term or provision of this
Agreement shall be effective unless set forth in writing signed by both parties. No waiver of any
of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision
hereof (whether or not similar), nor shall such waiver constitute a continuing waiver of such
provisions unless otherwise expressly provided. Each party to this Agreement has participated
in its drafting and, therefore, ambiguities in this Agreement will not be construed against any party
to this Agreement.
I. Severability. If any term or provision of this Agreement shall be deemed invalid or
unenforceable, the remainder of this Agreement shall not be affected thereby, and each remaining
term and provision of this Agreement shall be valid and in force to the fullest extent permitted by
law.
Kosmont Companies 4 I P g e
424)297-1070
www.kosmont.com
DocuSign Envelope ID:980EEAE1-0019-4447-8165-1 B1171033675
FACity
of Orange
Kosmont Proposal for Economic Development Advisory
January 30,2024
kosmon .
companies
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 may
include but is not limited to pro forma analysis and tax projections, are projections only. Actual
results may differ materially from those expressed in the analysis performed by Consultant due
to the integrity of data received, market conditions, economic events and conditions, and a variety
of factors that could materially affect the data and conclusions. Client's reliance on Consultant's
analysis must consider the foregoing.
Consultant services outlined and described herein are advisory services only. Any decisions or
actions taken or not taken by Client and affiliates, are deemed to be based on Client's
understanding and by execution of this Agreement, acknowledgement that Consultant's services
are advisory only and as such, cannot be relied on as to the results, performance and conclusions
of any investment or project that Client may or may not undertake as related to the services
provided including any verbal or written communications by and between the Client and
Consultant.
Client acknowledges that Consultant's use of work product is limited to the purposes
contemplated within this Agreement. Consultant makes no representation of the work product's
application to, or suitability for use in, circumstances not contemplated by the scope of work under
this Agreement.
Kosmont Companies 5 ' Page
424)297-1070
www.kosmont.com
Docusign Envelope ID:980EEAE1-0019-4447-8165-1B1171033B75
City of Orange
Kosmont Proposal for Economic Development AdvisoryralkosJanuary30,2024
companies
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. Force Majeure. Consultant shall not be liable for failure or delay in performance of its
obligations under this Agreement arising out of or caused, directly or indirectly, by significant
circumstances beyond its reasonable control, including, without limitation: epidemic; acts of God;
earthquakes; fires; floods; wars; civil or military disturbances; acts of terrorism; sabotage; strikes;
riots; wide-spread power failures and wide-spread internet failure. Contractual performance and
deadline(s) shall be extended for a period equal to the time lost by reason of the delay.
R. 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.
S. 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 6 I Pa g e
424)297-1070
www.kosmont.com
DocuSign Envelope ID:980EEAE1-0019-4447-8165-1 B1171033B75
City of Orange
FKosmont Proposal for Economic Development Advisory
January 30,2024
kosmon
companies
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 2024
City of Orange Kosmont &Associates, Inc.
doing business as "Kosmont Companies"
By: By:
Signature) Signature)
Name: Name: Ken K. Hira
Print Name)
Its: Its: President
Title)
Kosmont Companies 7 I P a g e
424)297-1070
www.kosmont.com
DocuSign Envelope ID:980EEAE1-0019-4447-8165-1B1171033B75
City of Orange
Kosmont Proposal for Economic Development Advisory
January 30, 2024
kosmon
companies
ATTACHMENT A
Kosmont Companies
2024 Public Agency Fee Schedule
Professional Services
Chairman & CEO 475.00/hour
President 395.00/hour
Sr. Vice President/Sr. Advisor/Sr. Managing Director 370.00/hour
Vice President/Project Advisor 250.00/hour
Senior Project Analyst 195.00/hour
Project Analyst/Project Research 175.00/hour
Assistant Project Analyst/Assistant Project Manager 150.00/hour
Project Promotion/Graphics/GIS Mapping Services 95.00/hour
Clerical Support 80.00/hour
Additional Expenses
In addition to professional services (labor fees):
1) An administrative fee for in-house copy, fax, phone, postage costs, digital/technological
support and related administrative expenses will be charged, which will be computed at
four percent (4.0 %) of monthly Kosmont Companies professional service fees incurred;
plus
2) Out-of-pocket expenditures, such as travel and mileage, professional printing, and delivery
charges for messenger and overnight packages will be charged at cost.
3) Project/Market data sources for support of evaluation and analysis e.g., ESRI, Placer.ai,
CoStar/STR, IMPLAN, ParcelQuest and other based on quoted project cost.
4) If Kosmont retains Third Party Vendor(s) for Client (with Client's advance approval), fees
and cost will be billed to Client at 1.1X (times) fees and costs.
5) Consultant's attendance or participation at any public meeting, whether such participation
is in person, digital, video and/or telephonic (e.g., City Council, Planning Commission,
Public Agency Board, other) requested by Client and are beyond those specifically
identified in the Scope of Work will be billed at the professional services (hourly) fees as
shown on this Attachment A.
Charges for Court/Deposition/Expert Witness-Related Appearances
Court-related (non-preparation)activities, such as court appearances, depositions, mediation,
arbitration, dispute resolution and other expert witness activities, will be charged at a court
rate of 1.5 times scheduled rates, with a 4-hour minimum.
Rates shall remain in effect until December 31, 2024.
Kosmont Companies 8 I P a ; e
424)297-1070
www.kosmont.com