PROFESSIONAL SERVICES AGREEMENT
By and Between the
CITY OF ANAHEIM
and
KOSMONT REAL ESTATE SERVICES DBA KOSMONT
REALTY
TABLE OF CONTENTS
Page
Section 1. Status of Parties 1
1.1 City 1
1.2 Consultant 1
Section 2. Services of Consultant. 2
2.1 Description of Services 2
2.2 Services to be Provided As Required 2
2.3 Time for Performance 2
2.4 Compliance with Law 2
2.5 Licenses, Permits, Fees and Assessments 2
2.6 Nondiscrimination 3
2.7 Familiarity with Work 3
2.8 Additional Services 3
Section 3. Term. 3
Section 4. Compensation 3
4.1 Amount of Compensation 3
4.2 Billing and Payment Procedures 3
Section 5. Coordination of Services. 4
5.1 Representative of City 4
5.2 Representative of Consultant 4
5.3 Prohibition Against Subcontracting and Assignments 4
5.4 Independent Contractor 4
Section 6. Insurance and Indemnification 5
6.1 Insurance 5
6.2 Indemnification 7
Section 7. Enforcement of Agreement. 7
7.1 Events of Default 7
7.2 Immediate Termination for Consultant's Default 8
7.3 Termination Without Cause 8
Section 8. Use and Ownership of Documents and Data. 8
8.1 Data to be Furnished by City 8
8.2 Ownership of Documents 8
Section 9. Miscellaneous Provisions 8
9.1 Waiver 8
9.2 Notices 8
9.3 Relationship of Parties 9
9.4 No Third Party Rights 9
9.5 Non-Liability of Members, Officials and Employees of the City 9
9.6 Controlling Law 10
9.7 Time of the Essence 10
9.8 Remedies Cumulative 10
9.9 Effect of Invalidity 10
9.10 Successors and Assigns 10
9.11 Entire Agreement 10
9.12 Authority 10
9.13 Conflicts of Interest 11
9.14 Time for Acceptance of Agreement by City. 11
9.15 Conflicts or Inconsistencies 11
EXHIBITS
Exhibit A Description of Services
Exhibit B Schedule of Compensation
11 PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT (this "Agreement") is made and entered into as of July 1, 2024 ( the "Effective Date"), by and between CITY OF ANAHEIM, a charter city and municipal corporation organized under the constitution and laws of the State of California (the "City"), A
N
D
KOSMONT & ASSOCIATES, INC., a California corporation (the "Consultant").
RECITALS
A. The City previously issued a Request for Proposals (the "RFP") dated September 28, 2023 seeking proposals from qualified firms for services including general commercial real
estate broker duties, such as providing broker opinion of value, to assist in the sale of property, and as generally described in Exhibit A attached hereto and incorporated herein by this reference (the "Services"). A copy of the RFP is on file in the Department of Economic Development of the City of Anaheim and is incorporated herein by this reference.
B. In response to the RFP, Consultant has submitted a proposal dated October 19, 2023 (the "Proposal") to respond to the City's need, which Proposal is on file in the office of the Economic Development Department Director and is incorporated herein by this reference.
C. The City and Consultant ( each, a "Party" and jointly, the "Parties") desire to enter into an agreement pursuant to which the Consultant will provide the Services as requested by the City.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS CONTAINED HEREIN, THE CITY AND THE CONSULTANT AGREE AS FOLLOWS:
Section 1. Status of Parties.
1.1 City. The Consultant acknowledges that City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City of Anaheim; and
1.2 Consultant. Consultant represents that Consultant is a California corporation, formed and in good standing under all applicable laws.
1 Section 2. Services of Consultant.
2.1 Description of Services. In compliance with all of the terms and conditions of this Agreement, Consultant shall provide the Services on an "as required" basis (the "Description of Services"), as authorized by the Director (as hereinafter defined in Section 5.1). Consultant represents and warrants that all Services to be provided hereunder shall be performed in a competent, professional and satisfactory manner in accordance with the standards prevalent in the industry for such services.
2.2 Services to be Provided As Required. Consultant acknowledges and agrees that City shall request that Consultant provide the Services on an "as required" basis and that City does not guarantee a minimum number of hours for which Consultant's services shall be requested and required hereunder. Consultant further acknowledges and agrees that this Agreement and any request for the provision of services hereunder is nonexclusive and that the City may enter into similar agreements with other entities for the provision of similar services.
Consultant shall provide only those services authorized from time to time by written work orders executed by the City (each, a "Work Order Authorization"). Within five (5) days of Consultant's receipt of a verbal request from the City, Consultant shall submit to City a detailed scope of work, project budget and schedule for the completion of work requested by the City. The Consultant shall not commence such work until the City has approved in writing the scope of work, project budget and schedule. Such scope of work, project budget and/or schedule may be modified by the mutual written agreement of the City and Consultant.
Written Work Order Authorizations and approved scopes of work, project budgets and schedules shall be considered to be addenda to this Agreement.
2.3 Time for Performance. Time is of the essence in the performance of this Agreement. Consultant shall perform and complete all services as may be requested pursuant to Section 2.2 hereof in a timely and expeditious manner. Consultant shall perform such services in accordance with those schedules which Consultant and the City may mutually agree to as to any particular study, job or analysis.
Consultant shall not be responsible for delays caused by circumstances beyond its reasonable control, provided that Consultant has delivered to the City written notice of the cause of any such delay within ten (10) days of the occurrence of such cause.
2.4 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, regulations and laws of the City of Anaheim and any Federal, State or local governmental City of competent jurisdiction.
2.5 Licenses, Permits, Fees and Assessments. Consultant shall obtain, at Consultant's sole cost and expense, such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and which arise from or are necessary for the performance of the Services required by this Agreement.
2 2.6 Nondiscrimination. Consultant agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry or national origin in its provision of services. To the extent this Agreement provides that Consultant offer accommodations or services to the public, such accommodations or services shall be offered by Consultant to the public on fair and reasonable terms.
2.7 Familiarity with Work. By executing this Agreement, Consultant represents and warrants that Consultant (i) has thoroughly investigated and considered the Services to be performed, (ii) has carefully considered how the Services should be provided, and (iii) fully understands the facilities, difficulties and restrictions attending the provision of the Services under this Agreement. Should the Consultant discover any latent or unknown conditions materially differing from those inherent in the provision of such Services or as represented by the City, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the City.
2.8 Additional Services. Consultant shall provide Services in addition to those specified in the Description of Services when directed to do so in writing by the City, provided that Consultant shall not be required to provide any such additional Services without compensation.
Section 3. Term.
The term of this Agreement shall commence on July 1, 2024 and shall terminate June 30, 2026, unless sooner terminated as provided herein ("Initial Term"). The Director is hereby authorized to renew this Agreement upon the same terms and conditions for no more than two (2) additional two-year terms after the Initial Term ("Renewal Terms"), unless CONSULTANT provides written notice of termination no less than thirty (30) days prior to completion of the term in progress; provided however, that compensation rates may be adjusted during the renewal of each subsequent term (hereinafter the phrases "Initial Term" and "Renewal Terms," if any, shall be collectively referred to as the "Term").
Section 4. Compensation.
4.1 Amount of Compensation. It is understood by and agreed between the Parties to this Agreement that full and complete payment for all Services provided in accordance with this Agreement, including sub-consultant fees, if any, and reimbursable expenses, shall not exceed TWO HUNDRED THOUSAND AND NO/100 DOLLARS $200,000 ("Maximum Compensation"), without the prior written authorization of City. City agrees to pay, and Consultant agrees to accept, as full compensation for Consultant's services, compensation at the hourly rates for the positions shown on Exhibit B attached hereto and incorporated by this reference herein.
4.2 Billing and Payment Procedures. Consultant shall present monthly itemized invoices for Services performed during the previous monthly period to the City. Each invoice shall state the date the Services were provided and the number of hours spent providing the Services. If requested by the City, Consultant shall present additional documentation evidencing the provision of Services satisfactory to the City. The City agrees to approve or disapprove 3 Consultant's invoice and/or additional documentation, as the case may be, within ten (10) days after the City's receipt of the invoice and/or additional documentation. The City agrees to pay the Consultant for work satisfactorily performed and expenses properly incurred within thirty (30) days after the City's approval of a statement from the Consultant describing such work and expenses. The City shall not be responsible to pay Consultant for any Services or expenses in excess of the Maximum Compensation. Consultant shall notify City in writing when seventy-five percent (75%) of the Maximum Compensation has been reached in any fiscal year during the Term of this Agreement.
Section 5. Coordination of Services.
5.1 Representative of City. The City's Director of Economic Development, or such person's designee, (the "Director") shall represent the City in all matters pertaining to this Agreement. Whenever a reference is made herein to an action or approval to be undertaken by the City, the Director is authorized to act unless this Agreement specifically provides otherwise or the context should otherwise require.
5.2 Representative of Consultant. Brian Moncrief is hereby designated as being the principal and representative of Consultant authorized to act on Consultant's behalf with respect to the services and work to be provided hereunder and make all decisions in connection therewith.
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principal are a substantial inducement for the City to enter into this Agreement.
Therefore, the foregoing principal shall be responsible during the Term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the provision of Services hereunder. The foregoing principal may not be changed by Consultant and no other personnel may be assigned to supervise the Services to be provided hereunder without the express written consent of the City.
5.3 Prohibition Against Subcontracting and Assignments. Neither the whole nor any interest in, nor any of the rights or privileges granted under this Agreement shall be assignable or transferable or encumbered in any way without the prior written consent of City. Any such purported assignment, transfer, encumbrance, pledge, subuse, or permission given without such consent shall be void as to City. This is a personal services contract and the Consultant was chosen on the basis of characteristics unique to the Consultant. City shall have the right to unreasonably or arbitrarily withhold its consent to any such assignment, transfer, encumbrance, pledge, subuse, or permission.
5.4 Independent Contractor. Consultant and any agent or employee of Consultant shall act in an independent capacity and not as officers or employees of City. City assumes no liability for Consultant's actions and performance, nor assumes responsibility for taxes, bonds, payments, or other commitments, implied or explicit, by or for Consultant. Consultant shall not have authority to act as an agent on behalf of City unless specifically authorized to do so in writing.
Consultant acknowledges that it is aware that because it is an independent contractor, City is making no deduction from any amount paid to Consultant and is not contributing to any fund on its behalf. Consultant disclaims the right to any fee or benefits except as expressly provided for in this Agreement.
4 As respects all acts or omissions of Consultant relating to Consultant's responsibility for taxes, bonds, payments, or other commitments, implied, or explicit, by or for Consultant, the Consultant agrees to indemnify, defend (at the City's option), and hold harmless the City, its officers, agents, employees, representatives, and volunteers from and against any and all claims, demands, defense costs, liability, or consequential damages of any kind or nature arising out of or in connection with the Consultant's performance or failure to perform under this Section.
Section 6. Insurance and Indemnification.
6.1 Insurance. Without limiting City's right to indemnification, it is agreed that Consultant shall secure, prior to commencing any activities under this Agreement, and maintain, during the Term of this Agreement, insurance coverage as follows:
6.1.1 Required Insurance Coverage. Consultant shall secure and maintain the following insurance coverage:
(a) Workers' Compensation Insurance, as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence. (b) Commercial/Comprehensive General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, as well as Independent Consultant's Liability where appropriate, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate, written on an occurrence form. Such insurance shall be written on a primary basis, but may include a deductible or self-insured retention of more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to City, in writing, at the inception of this Agreement.
(c) Commercial/Comprehensive Automobile Liability Coverage, including—as applicable—owned, non-owned, and hired autos, in an amount not less than $2,000,000 per occurrence, combined single limit, as required by California law. (d) Professional Liability Insurance in an amount not less than $2,000,000 per occurrence or per claim. Such insurance shall be written on a primary basis, but may include a deductible or self-insured retention of more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to City, in writing, at the inception of this Agreement.
Any required coverage written with primary and excess layers to satisfy the minimum requirements of this Agreement must be submitted for approval by City's Risk Manager prior to the inception of the final Agreement.
6.1.2 Required Clauses in Policies. Each insurance policy required by this Agreement shall contain the following clause or shall otherwise provide for the following conditions:
"This insurance shall not be cancelled, or limited in scope or coverage by Consultant, until after thirty (30) days prior written notice has been given to the 5 City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805, except in the event of cancellation for non-payment of premium that shall provide for not less than ten (10) days' notice."
Each insurance policy required by this Agreement, except policies for Professional Liability and Workers' Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
"It is agreed that any insurance maintained by Consultant pursuant to this Agreement shall be primary to, and not contribute with, any insurance or self- insurance maintained by the City of Anaheim."
"The City of Anaheim, its officers, agents, employees, representatives and City- designated volunteers are added as additional insured as respects the acts, omissions, operations and activities of, or on behalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim."
6.1.3 Required Certificates and Endorsements. Prior to commencing any work under this Agreement, Consultant shall deliver to City insurance certificates confirming the existence of the insurance required under this Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreement, Consultant shall provide City (i) endorsements to the insurance policies that add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documentation acceptable to City evidencing that the coverage, terms, and conditions set forth in the above-referenced clauses are otherwise included in said insurance policies. Insurance required hereunder shall be placed with insurers (i) admitted to write insurance in California, (ii) possessing an A. M. Best's rating of A VII or higher, or (iii) otherwise acceptable to City, with prior written permission from City. In the event that a claim or other legal action is filed against City, and if City, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then City has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the parties agree that Consultant shall fully defend, hold harmless, and indemnify City against any such claim or other legal action.
6.1.4 Remedies for Default Re: Insurance. In addition to other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option:
(a) Order Consultant to stop work under this Agreement and/or withhold any payment(s) that become due to Consultant hereunder until Consultant demonstrates compliance with the requirements hereof;
(b) Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies City may have and is not the exclusive remedy for Consultant's failure to maintain insurance or secure appropriate endorsements.
6 Nothing herein contained shall be construed in any way as limiting the extent that Consultant may be held responsible for payments of damages to persons or property resulting from Consultant's, (or Consultant's Agent or Sub-Agent, if any) performance of the work covered under this Agreement.
In the event Consultant hires other persons or firms to perform some of the work related to this Agreement, Consultant shall ensure (i) that the acts or omissions of such persons or firms are covered under the above-referenced liability insurance, or (ii) that such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of Consultant under this Agreement (except for firms that are not performing professional services—such firms shall not be required to carry the above-referenced professional liability insurance); and in either instance, Consultant shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to City.
City's Risk Manager is hereby authorized to amend the requirements set forth herein in the event that such reduction is in City's best interest.
6.2 Indemnification. As respects acts, errors or omissions in the performance of professional services, Consultant agrees to indemnify and hold harmless City, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, directly arising out of the negligent acts, errors or omissions of the Consultant or any Sub-Agent in the performance of professional services under this Agreement.
As respects all acts, errors or omissions that do not arise directly out of the performance of professional services, including but not limited to those acts, errors or omissions typically covered by general and automobile liability insurance, Consultant agrees to indemnify, defend (at City's option), and hold harmless City, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as "Claims"), arising out of or in connection with Consultant's (or Consultant's Agent or Sub-Agent, if any) acts, errors, omissions, or work, relative to this Agreement; except for those Claims that arise out of the sole negligence or willful misconduct of City.
The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether or not City, Consultant, or any other person maintains, or fails to maintain, insurance coverage, or a self-insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement.
Section 7. Enforcement of Agreement.
7.1 Events of Default. For purposes of this Section 7, the word "Default" shall mean the failure of Consultant to perform any of Consultant's duties or obligations or the breach by Consultant of any of the terms and conditions set forth in this Agreement. In addition, Consultant shall be deemed to be in Default upon Consultant's (i) application for, consent to, or suffering of, the appointment of a receiver, trustee or liquidator for all or a substantial portion of its assets, (ii) making a general assignment for the benefit of creditors, (iii) being adjudged bankrupt, (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, 7 reorganization or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing), or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution or seizure of all or a substantial portion of Consultant's assets or of Consultant's interests hereunder.
City shall not be deemed to be in Default in the performance of any obligation required to be performed by City hereunder unless and until City has failed to perform such obligation for a period of thirty (30) days after receipt of written notice from Consultant specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of City's obligation is such that more than thirty (30) days are required for its performance, then City shall not be deemed to be in Default if City shall commence to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion.
7.2 Immediate Termination for Consultant's Default. In the event of any Default by Consultant, City may immediately terminate this Agreement. Such termination shall be effective immediately upon receipt by Consultant of written notice from City. In such event, Consultant shall have no further rights hereunder; City shall have all other rights and remedies as provided by law.
7.3 Termination Without Cause. Either City or Consultant may terminate this Agreement at any time without the necessity of cause or Default by the other Party by giving fifteen (15) days' notice in writing to the other Party. In such event, the Parties shall have no further rights hereunder, except that Consultant shall be paid for all Services rendered prior to such termination.
Section 8. Use and Ownership of Documents and Data.
8.1 Data to be Furnished by City. City shall furnish to Consultant such documents and materials as may be relevant and pertinent to the provision of Services hereunder as City may possess or acquire.
8.2 Ownership of Documents. All documents and materials furnished by the City to Consultant pursuant to Section 8.1 hereof shall remain the property of the City and shall be returned to the City upon termination of this Agreement. All documents and materials prepared by Consultant hereunder shall become the property of the City at the time of payment to Consultant of all fees and expenses for their preparation, and shall be delivered to the City by Consultant at the request of the City. The documents and materials prepared by Consultant hereunder shall not be used by the City or others, except for the purpose for which they were intended. The City agrees not to associate Consultant's name with any documents or materials not prepared by Consultant.
Section 9. Miscellaneous Provisions.
9.1 Waiver. Inaction by City or Consultant with respect to a Default hereunder shall not be deemed to be a waiver of such Default. The waiver by either City or Consultant of any Default hereunder shall not be deemed to be a waiver of any subsequent Default.
9.2 Notices. All notices, demands or other writings to be made, given or sent hereunder, or which may be so given or made or sent by either City or Consultant to the other shall 8 be deemed to have been given when in writing and personally delivered or if mailed on the third (3rd) day after being deposited in the United States mail, certified or registered, postage prepaid, and addressed to the respective Parties at the following addresses:
If to City:
With copies to:
City Clerk
200 S. Anaheim Boulevard, 2nd Floor
City of Anaheim
Anaheim, California 92805
FAX No. (714) 765-4105
Director
Economic Development Department
City of Anaheim
200 S. Anaheim Boulevard, 7th Floor
Anaheim, California 92805
Email: [email protected]
City Attorney
City of Anaheim
200 S. Anaheim Boulevard, 3rd Floor
Anaheim, California 92805
FAX No. (714) 765-5123
To Consultant: Kosmont Real Estate Services dba Kosmont Realty 1601 N. Sepulveda Blvd. Suite #382
Manhattan Beach, CA 90266
Telephone No.: (424) 297-1076
Attention: Brian Moncrief
9.3 Relationship of Parties. Nothing contained herein shall be deemed or construed by the Parties, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the Parties, it being understood and agreed that Consultant is and will be at all times an independent contractor pursuant to this Agreement and shall not, in any way, be considered to be an officer, agent or employee of the City.
9.4 No Third Party Rights. The Parties intend that no rights nor remedies be granted to any third party as a beneficiary of this Agreement or of any covenant, duty, obligation or undertaking established herein.
9.5 Non-Liability of Members, Officials and Employees of the City. No member, official or employee of the City shall be personally liable to Consultant, or any successor in interest, in the event of any Default or breach by the City or for any amount which may become due to Consultant or Consultant's successors, or on any obligation under the terms of this Agreement. Consultant hereby waives and releases any claim Consultant may have against the members, officials or employees of the City with respect to any Default or breach by City or for any amount which may become due to Consultant or Consultant's successors, or any obligations under the terms of this Agreement. Consultant makes such release with the full knowledge of 9 Civil Code Section 1542 and hereby waives any and all rights thereunder to the extent of this release, if such Section 1542 is applicable. Section 1542 of the Civil Code provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR."
9.6 Controlling Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
9.7 Time of the Essence. Time is hereby expressly declared to be the essence of this Agreement and of each and every term, covenant and condition hereof which relates to a date or a period of time.
9.8 Remedies Cumulative. The remedies given to City and Consultant herein shall be cumulative and are given without impairing any other rights given City or Consultant by statute or law now existing or hereafter enacted and the exercise on any one (1) remedy by City or Consultant shall not exclude the exercise of any other remedy.
9.9 Effect of Invalidity. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of its terms and provisions to persons and circumstances other than those to which it has been held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
9.10 Successors and Assigns. This Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of and shall apply to the successors and assigns of City and to the permitted successors and assigns of Consultant, and all references to "City" or "Consultant" shall be deemed to refer to and include all permitted successors and assigns of such Party.
9.11 Entire Agreement. This Agreement and the exhibits hereto contain the entire agreement of the City and the Consultant with respect to the matters covered hereby, and no agreement, statement or promise made by either City or Consultant which is not contained herein, shall be valid or binding. No prior agreement, understanding or representation pertaining to any such matter shall be effective for any purpose. No provision of this Agreement may be amended, modified or added except by an agreement in writing signed by City and Consultant.
9.12 Authority. Each individual executing this Agreement on behalf of a corporation, nonprofit corporation, partnership or other entity or organization, represents and warrants the he or she is duly authorized to execute and deliver this Agreement on behalf of such entity or organization and that this Agreement is binding upon the same in accordance with its terms.
Consultant shall, at City's request, deliver a certified copy of its governing board's resolution or certificate authorizing or evidencing such execution.
10 9.13 Conflicts of Interest.
9.13.1 No member, official or employee of the City shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affect his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested.
9.13.2 Consultant represents that neither it nor any of its officers, partners or employees has a financial interest, as defined in section 87103 of the Government Code, in the subject matter of this Agreement other than the right to receive payment from City services rendered.
9.13.3 Consultant agrees that it shall not make, participate in making, nor in any way attempt to use its position as consultant to influence any decision of City in which Consultant knows, or has reason to know, that any of its officers, partners or employees has a financial interest as defined in Section 87103 of the Government Code.
9.13.4 Consultant warrants that neither Consultant nor any of its officers, partners or employees, has any financial interest in any real property, building or structure within 2,500 feet of the location of any project or assignment to which this Agreement may apply in the City of Anaheim. Consultant agrees to disclose to City any financial interest in such property as may be acquired by its officers, partners or employees during the term of this Agreement.
9.13.5 In conformity with the conflict of interest code of City, Consultant or, if Consultant is a firm or corporation, each individual who will be performing work under this Agreement shall complete, under penalty of perjury, a Statement of Economic Interests (Form 700) and all required attachments and shall provide the originals thereof to the City Clerk. Copies of those completed forms and attachments shall be public records of City, to be kept and disclosed at the discretion of City and according to law. Consultant and individuals who will be performing work under this Agreement shall disclose pursuant to the broadest disclosure category unless the City Manager (or his or her designee) makes a written determination that the foregoing should be more limited. Such written determination should be made in the manner required by the City's Conflict of Interest Code.
9.14 Time for Acceptance of Agreement by City. This Agreement, when executed by Consultant and delivered to City, must be authorized, executed and delivered by the City on or before forty-five (45) days after the execution and delivery by Consultant or this Agreement shall be void, except to the extent that Consultant and City shall consent in writing to a further extension of time for the authorization, execution and delivery of this Agreement.
9.15 Conflicts or Inconsistencies. It is further expressly agreed by and between the parties hereto that, should there be any conflict between the terms of this Agreement and any of the exhibits or attachments hereto, this Agreement shall control and nothing herein shall be considered as an acceptance of the said terms of said exhibits or attachments conflicting herewith.
SIGNATURES BEGIN ON NEXT PAGE
11 IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS
AGREEMENT ON THE RESPECTIVE DATES SET FORTH BELOW.
"CITY"
CITY OF ANAHEIM,
a municipal corporation and charter city
Dated: By:
Jim Vanderpool
City Manager
ATTEST:
THERESA BASS, CITY CLERK
By:
APPROVED AS TO FORM:
CITY ATTORNEY
By:
Ryan 0. Hodge 5Qi it.20. 2P1 Deputy City Attorney
"CONSULTANT"
KOSMONT REAL ESTATE SERVICES,
a California corporation doing business as
KOSMONT REALTY
Dated:
By:
Larry J. Kosmont
President DOC # 151427
RH
12 ACKNOWLEDGEMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
County of
On , before me,
date here insert name and title of the officer
personally appeared
here insert name(s) of signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity/ies, and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
Witness my hand and official seal.
(Signature) (Seal)
EXHIBIT A
DESCRIPTION OF SERVICES
(To be attached)
Exhibit A
Scope of Services (Exhibit A)
Commercial Real Estate Broker Services: Services include general commercial real estate broker duties, such as providing broker opinion of value, to assist in the sale of real property.
Property Analysis: Consultant will provide commercial real estate brokerage and consulting services that are needed for a variety of project types including leasing, acquisition, disposition, and asset management of city owned properties, coordinate real estate transaction closings with escrow and title companies.
Strategic Planning: Services include the evaluation of market data/values to determine recommended sales or purchase price of properties in a professional and comprehensive written consultation. Consultant will advise the City on the highest and best use for sites specific to local market conditions and other economic factors. Consultant will also provide strategic planning for various city owned properties in order to sell, lease, dispose, or realize its capital appreciation.
City Staff Engagement: Services include the preparation of recommendations and advisement to the City including but not limited to counter offers, offers, claims, and issues pertaining to the sale, lease, or purchase of assigned properties. The selected consultant will represent the city in the purchase, sale, and/or lease of properties as well as assist on negotiation terms and conditions of agreement which are consistent with the City's strategic and financial objectives. Public presentations for advisement and recommendations may be necessary.
Non-Compete: Brokers must affirmatively identify the Brokers working on items for the City are conflicted from dual agency. Brokers can only represent the City on transactions.
Marketing: The consultant will represent the city in the facilitation of site/property tours, promotion of available property, identifying available spaces for lease, soliciting tenant and broker interest, conducting fmancial analysis for prospective tenants, and listing and purchasing properties.
EXHIBIT B
SCHEDULE OF COMPENSATION
(To be attached)
Exhibit B
Exhibit B
FEE SCHEDULE
CITY Of ANANElh
On-call Commercial Real Estate Broke
and Consultant Service:
KOSMONT REALTY - PROPOSED COST STRUCTURE - REAL ESTATE AGENT SERVICES For the City's sale of property, KR, would require Client approval and execution of an Exclusive Authorization to Sell Brokerage Agreement including a Schedule of Commissions by and between KR and the Client.
The general commission structure for real estate brokerage services shall be computed as follows:
Vacant Real Property: 6% of the gross sales price or independently appraised value of the parcel or a minimurr commission amount as mutually agreed upon between Client and KR, whichever is greater. For a ground lease, 4% a the total base rent for the first thirty (30) years of the term of the lease; or a minimum commission amount a! mutually agreed upon between Client and KR, whichever is greater.
Improved Real Property: 2.5% to 4%, depending on the value of the subject property, of the gross sales price or independently appraised value of the parcel or a minimum commission amount as mutually agreed upon betweer Client and KR, whichever is greater. Additionally, for any lease negotiated, 5% of lease rate for initial term and 3% for subsequent lease periods and options.
Additional Costs: The additional costs needed for these transactions will include escrow fees, title insurance, appraisal, documentary transfer fees, and other typical closing costs. Activities related to subdivision map matters (such as lot line adjustments and Phase I or II environmental reports) are an additional cost not borne by KR.
Property sales may also require specific services that are not provided by KR, and which are contracted for and compensated separately. These potential services include but are not limited to engineering, environmental assessment and remediation, geological, and legal or entitlement services.
Hourly rates may be found on the subsequent pages.
1111 kosmont redly
KOSMONT REALTY
1601 N. Sepulveda Blvd., #382 I Manhattan Beach, CA 90266 I 424.297.1076 www.kosmontrealty.com
Exhibit B
FEE SCHEDULE
CITY OF ANAHEIM
On-call Commercial Real Estate Broker
and Consultant Services
KOSMONT REALTY PROPOSED COST STRUCTURE • REAL ESTATE TECHNICAL/ADVISORY SERVICES Compensation for any pre-sale/disposition real estate advisory/technical services including but not limited to broker opinion of value, real estate transaction structuring, public-private negotiations (e.g., ENA, DDA, DA), preparation of Government Code 52201, 53083, and 33433 reports, Surplus Land Act compliance, and/or project implementation services would be paid in accordance with professional services (hourly) fees at KR's billing rates as shown below.
Future increases in budget will require approval by Client in advance. Budget may be increased by Client at any time.
Professional Hourly Services
Chairman & CEO / President
Senior Managing Director/Senior Advisor/Project Manager Managing Director
Senior Director! Senior Project Analyst
Director / Project Analyst / Project Manager
Project Promotion/Graphics/GIS Mapping Services/Research Clerical Support
• Additional Expenses
In addition to professional services (labor fees):
$445.00/hour
$350.00/hour
$225.00/hour
$195.00/hour
$165.00/hour
$ 95.00/hour
$ 70.00/hour
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 Realty's 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) For Third Party Vendor(s) retained on behalf of Client (with Client's advance approval), fees and costs 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, 2023
KOSNIONT REALTY
1601 N. Sepulveda Blvd., #382 I Manhattan Beach, CA 90266 I 424.297,1076 www.kosmontrealty.com
FAA kosmon
Exhibit B
FEE SCHEDULE
CITY OF ANAHEIM
On-call Commercial Real Estate Broker
and Consultant Seivices
KOSMONT HOURLY RATES
Professional Services
President $445.00! hour
Senior Vice President/Senior Advisor $350.00 hour
Vice President $225.00! hour
Senior Project Analyst $195.00! hour
Project Analyst/Project Research $165.00! hour
Assistant Project Analyst/Assistant Project Manager $125.00! hour Project Promotion/Graphics/GIS Mapping Services $ 95.00 / hour Clerical Support $ 70.00 / hour
kos Inlion COmPania
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 rate sheet.
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, 2023.
KOSMONT REALTY
1601 N. Sepulveda Blvd., #382 1 Manhattan Beach, CA 90266 I 424.297.1076 kosmon www.kosmontrealty.com moo