MASTER PROFESSIONAL CONSULTANT SERVICES AGREEMENT
KOSMONT TRANSACTIONS SERVICES, INC.,
dba KOSMONT FINANCIAL SERVICES
Municipal Financial Advisory Services Panel (RFP No. 2261)
THIS MASTER PROFESSIONAL CONSULTANT SERVICES AGREEMENT
("Agreement") is made and entered into this day of _ 2023 (Eitective Date"), by and between the CITY OF RIVERSIDE ("City"), a California charter city and municipal corporation and KOSMONT TRANSACTIONS SERVICES, INC., a California corporation, doing business as KOSMONT FINANCIAL SERVICES ("Consultant").
RECITALS
WHEREAS, the City requires the services of a consultant that is experienced in providing all services commonly associated with financial advisory services for various Real Estate P3 projects for the City's Finance Department; and
WHEREAS, City issued a Request for Proposals (RFP No. 2261) for purposes of retaining a consultant experienced in providing such professional services, for various projects for the City's Finance Department; and
WHEREAS, Consultant has the necessary experience in providing such professional consulting services and advice on various issues; and
WHEREAS, selection of Consultant is expected to achieve the desired results in an expedited fashion; and
WHEREAS, Consultant has submitted a Proposal to City and has affirmed its willingness and ability to perform such work.
NOW, THEREFORE, in consideration of the foregoing recitals which are incorporated herein by this reference, City and Consultant agree as follows:
Scope of Services. City agrees to retain and does hereby retain Consultant and Consultant agrees to provide the services more particularly described in Exhibit "A," "Scope of Services" ("Services"), attached hereto and incorporated herein by reference, in conjunction with Financial Advisory Services Panel ("Project").
Assigned Project. During the term of this Agreement, Consultant shall submit written proposals for various Financial Advisory Services ("Assigned Project") as requested Upon selection of Consultant, the specific scope and price of the Assigned Project shall be formalized by a Supplemental Agreement, a sample of which is attached hereto as Exhibit "B."
2. Term. This Agreement shall be effective on the date first written above and shall remain in effect until June 30, 2028, unless otherwise terminated pursuant to the provisions herein.
The City shall have the option to extend the Agreement for two (2) additional two-year terms, upon written notice to Consultant.
3. Compensation/Payment. Consultant shall perform the Services under this Agreement payable in accordance with the terms set forth in Exhibit "B" Said payment shall be made in accordance with City's usual accounting procedures upon receipt and approval of an itemized invoice setting forth the services performed. The invoices shall be delivered to City at the address set forth in Section 4 hereof.
Non-Exclusivity. Nothing herein is intended nor shall be construed as creating any exclusive agreement with Contractor. This Agreement shall not restrict City from acquiring similar, equal, or like goods and/or services from other entities or sources.
Notices. Any notices required to be given, hereunder shall be in writing and shall be personally served or given by mail. Any notice given by mail shall be deemed given when deposited in the United States Mail, certified and postage prepaid, addressed to the party to be served as follows:
City Consultant
Finance Department Kosmont Transactions Services,
City of Riverside Inc., dba Kosmont Financia
Attn: Chief Financial Officer Services
3900 Main Street, 6th Floor Attn: Larry Kosmont, President Riverside, CA 92522 1601 N. Sepulveda Blvd., #382
Manhattan Beach, CA 90266
Prevailing Wage. If applicable, Consultant and all subcontractors are required to pay the general prevailing wage rates of per diem wages and overtime and holiday wages determined by the Director of the Department of Industrial Relations under Section 1720 et seq. of the California Labor Code and implemented by Resolution No. 13346 of the City Council of the City of Riverside. www.di.ca.gov/4lsr/DPreWareDctermination hun and is refered to and made a part hercol; the wage rates therein ascertained, determined, and specified are referred to and made a part hereof as though fully set forth herein.
Contract Administration. A designee of the City will be appointed in writing by the City Manager or Department Director to administer this Agreement on behalf of City and shall be referred to herein as Contract Administrator.
Standard of Performance. While performing the Services, Consultant shall exercise the reasonable professional care and skill customarily exercised by reputable members of Consultant's profession practicing in the Metropolitan Southern California Area, and shall use reasonable diligence and best judgment while exercising its professional skill and expertise. 2 Personnel. Consultant shall furnish all personnel necessary to perform the Services and shall be responsible for their performance and compensation. Consultant recognizes that the qualifications and experience of the personnel to be used are vital to professional and timely completion of the Services. The key personnel listed in Exhibit "C" attached hereto and incorporated herein by this reference and assigned to perform portions of the Services shall remain assigned through completion of the Services, unless otherwise mutually agreed by the parties in writing, or caused by hardship or resignation in which case substitutes shall be subject to City approval.
Assignment and Subcontracting. Neither party shall assign any right, interest, or obligation in or under this Agreement to any other entity without prior written consent of the other party. In any event, no assignment shall be made unless the assignee expressly assumes the obligations of assignor under this Agreement, in a writing satisfactory to the parties. Consultant acknowledges that any assignment may, at the City's sole discretion, require City Manager and/or City Council approval. Consultant shall not subcontract any portion of the work required by this Agreement without prior written approval by the responsible City Contract Administrator.
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement, including without limitation, the insurance obligations set forth in Section 12. The Consultant acknowledges and agrees that the City is an intended beneficiary of any work performed by any subcontractor for purposes of establishing a duty of care between any subcontractor and the City.
11. Independent Contractor. In the performance of this Agreement, Consultant, and Consultant's employees, subcontractors and agents, shall act in an independent capacity as independent contractors, and not as officers or employees of the City of Riverside. Consultant acknowledges and agrees that the City has no obligation to pay or withhold state or federal taxes or to provide workers' compensation or unemployment insurance to Consultant, or to Consultant's employees, subcontractors and agents. Consultant, as an independent contractor, shall be responsible for any and all taxes that apply to Consultant as an employer.
12. Indemnification.
12.1 Design Professional Defined. For purposes of this Agreement. "Design Professional" includes the following:
A. An individual licensed as an architect pursuant to Chapter 3 (commencing with Section 5500) of Division 3 of the Business and Professions Code, and a business entity offering architectural services in accordance with that chapter.
B. An individual licensed as a landscape architect pursuant to Chapter 3.5 (commencing with Section 5615) of Division 3 of the Business and Professions Code, and a business entity offering landscape architectural services in accordance with that chapter.
3 C. An individual registered as a professional engineer pursuant to Chapter 7 (commencing with Section 6700) of Division 3 of the Business and Professions Code, and a business entity offering professional engineering services in accordance with that chapter.
D. An individual licensed as a professional land surveyor pursuant to Chapter 15 (commencing with Section 8700) of Division 3 of the Business and Professions Code, and a business entity offering professional land surveying services in accordance with that chapter.
12.2 Defense Obligation for Design Professional Liability. Consultant agrees, at its cost and expense, to promptly defend the City, and the City's employees, officers, managers, agents and council members (collectively the "Parties to be Defended") from and against any and all claims, allegations, lawsuits, arbitration proceedings, administrative proceedings, regulatory proceedings, or other legal proceedings to the extent the same arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant, or anyone employed by or working under the Consultant or for services rendered to the Consultant in the performance of the Agreement, notwithstanding that the City may have benefited from its work or services and whether or not caused in part by the negligence of an Indemnified Party. Consultant agrees to provide this defense immediately upon written notice from the City, and with well qualified, adequately insured and experienced legal counsel acceptable to City. This obligation to defend as set forth herein is binding on the successors, assigns and heirs of Consultant and shall survive the termination of Consultant's Services under this Agreement.
12.3 Indemnity for Design Professional Liability. When the law establishes a professional standard of care for Consultant's services, to the fullest extent permitted by law, Consultant shall indemnify, protect and hold harmless the City and the City's employees, officers, managers, agents, and Council Members ("Indemnified Parties") from and against any and all claim for damage, charge, lawsuit, action, judicial, administrative, regulatory or arbitration proceeding, damage, cost, expense (including counsel and expert fees), judgment, civil fines and penalties, liabilities or losses of any kind or nature whatsoever to the extent the same arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant, or anyone employed by or working under the Consultant or for services rendered to the Consultant in the performance of the Agreement, notwithstanding that the City may have benefited from its work or services and whether or not caused in part by the negligence of an Indemnified Party.
12.4 Defense Obligation for Other than Design Professional Liability.
Consultant agrees, at its cost and expense, to promptly defend the City, and the City's employees, officers, managers, agents and council members (collectively the "Parties to be Defended") from and against any and all claims, allegations, lawsuits, arbitration proceedings, administrative proceedings, regulatory proceedings, or other legal proceedings which arise out of, or relate to, or are in any way connected with: 1) the Services, work, activities, operations, or duties of the Consultant, or of anyone employed by or working under the Consultant, or 2) any breach of the Agreement by the Consultant. This duty to defend shall apply whether or not such claims, allegations, lawsuits or proceedings have merit or are meritless, or which involve claims or allegations that any or all of the Parties to be Defended were actively, passively, or concurrently negligent, or which otherwise assert that the Parties to be Defended are responsible, in whole or in part, for any loss, damage or injury. 4 Consultant agrees to provide this defense immediately upon written notice from the City, and with well qualified, adequately insured and experienced legal counsel acceptable to City. This obligation to defend as set forth herein is binding on the successors, assigns and heirs of Consultant and shall survive the termination of Consultant's Services under this Agreement.
12.5 Indemnity for Other than Design Professional Liability. Except as to the sole negligence or willful misconduct of the City, Consultant agrees to indemnify, protect and hold harmless the Indemnified Parties from and against any claim for damage, charge, lawsuit, action, judicial, administrative, regulatory or arbitration proceeding, damage, cost, expense (including counsel and expert fees), judgment, civil fine and penalties, liabilities or losses of any kind or nature whatsoever whether actual, threatened or alleged, which arise out of, pertain to, or relate to, or are a consequence of, or are attributable to, or are in any manner connected with the performance of the Services, work, activities, operations or duties of the Consultant, or anyone employed by or working under the Consultant or for services rendered to Consultant in the performance of this Agreement, notwithstanding that the City may have benefited from its work or services. This indemnification provision shall apply to any acts, omissions, negligence, recklessness, or willful misconduct, whether active or passive, on the part of the Consultant or anyone employed or working under the Consultant.
13. Insurance.
13.1 General Provisions. Prior to the City's execution of this Agreement, Consultant shall provide satisfactory evidence of, and shall thereafter maintain during the term of this Agreement, such insurance policies and coverages in the types, limits, forms and ratings required herein. The rating and required insurance policies and coverages may be modified in writing by the City's Risk Manager or City Attorney, or a designee, unless such modification is prohibited by law.
13.1.1 Limitations. These minimum amounts of coverage shall not constitute any limitation or cap on Consultant's indemnification obligations under Section 11 hereof.
13.1.2 Ratings. Any insurance policy or coverage provided by Consultant or subcontractors as required by this Agreement shall be deemed inadequate and a material breach of this Agreement, unless such policy or coverage is issued by insurance companies authorized to transact insurance business in the State of California with a policy holder's rating of A or higher and a Financial Class of VII or higher.
13.1.3 Cancellation. The policies shall not be canceled unless thirty (30) days prior written notification of intended cancellation has been given to City by certified or registered mail, postage prepaid.
13.1.4 Adequacy. The City, its officers, employees and agents make no representation that the types or limits of insurance specified to be carried by Consultant pursuant to this Agreement are adequate to protect Consultant. If Consultant believes that any required insurance coverage is inadequate, Consultant will obtain such additional insurance coverage as Consultant deems adequate, at Consultant's sole expense. 5 13.2 Workers' Compensation Insurance. By executing this Agreement, Consultant certifies that Consultant is aware of and will comply with Section 3700 of the Labor Code of the State of California requiring every employer to be insured against liability for workers' compensation, or to undertake self-insurance before commencing any of the work. Consultant shall carry the insurance or provide for self-insurance required by California law to protect said Consultant from claims under the Workers' Compensation Act. Prior to City's execution of this Agreement, Consultant shall file with City either 1) a certificate of insurance showing that such insurance is in effect, or that Consultant is self-insured for such coverage, or 2) a certified statement that Consultant has no employees, and acknowledging that if Consultant does employ any person, the necessary certificate of insurance will immediately be filed with City. Any certificate filed with City shall provide that City will be given ten (10) days' prior written notice before modification or cancellation thereof.
13.3 Commercial General Liability and Automobile Insurance. Prior to City's execution of this Agreement, Consultant shall obtain, and shall thereafter maintain during the term of this Agreement, commercial general liability insurance and automobile liability insurance as required to insure Consultant against damages for personal injury, including accidental death, as well as from claims for property damage, which may arise from or which may concern operations by anyone directly or indirectly employed by, connected with, or acting for or on behalf of Consultant.
The City, and its officers, employees and agents, shall be named as additional insureds under the Consultant's insurance policies.
13.3.1 Consultant's commercial general liability insurance policy shall cover both bodily injury (including death) and property damage (including, but not limited to, premises operations liability, products-completed operations liability, independent contractor's liability, personal injury liability, and contractual liability) in an amount not less than $1,000,000 per occurrence and a general aggregate limit in the amount of not less than $2,000,000.
13.3.2 Consultant's automobile liability policy shall cover both bodily injury and property damage in an amount not less than $1,000,000 per occurrence and an aggregate limit of not less than $1,000,000. All of Consultant's automobile and/or commercial general liability insurance policies shall cover all vehicles used in connection with Consultant's performance of this Agreement, which vehicles shall include, but are not limited to, Consultant owned vehicles, Consultant leased vehicles, Consultant's employee vehicles, non-Consultant owned vehicles and hired vehicles.
13.3.3 Prior to City's execution of this Agreement, copies of insurance policies or original certificates along with additional insured endorsements acceptable to the City evidencing the coverage required by this Agreement, for both commercial general and automobile liability insurance, shall be filed with City and shall include the City and its officers, employees and agents, as additional insureds. Said policies shall be in the usual form of commercial general and automobile liability insurance policies, but shall include the following provisions:
It is agreed that the City of Riverside, and its officers, employees and agents, are added as additional insureds under this policy, solely for work done by and on behalf of the named insured for the City of Riverside. 6 13.3.4 The insurance policy or policies shall also comply with the following provisions:
a. The policy shall be endorsed to waive any right of subrogation against the City and its sub-consultants, employees, officers and agents for services performed under this Agreement.
b. If the policy is written on a claims made basis, the certificate should so specify and the policy must continue in force for one year after completion of the services. The retroactive date of coverage must also be listed.
c. The policy shall specify that the insurance provided by Consultant will be considered primary and not contributory to any other insurance available to the City and Endorsement No. CG 20010413 shall be provided to the City.
13.4 Errors and Omissions Insurance. Prior to City's execution of this Agreement, Consultant shall obtain, and shall thereafter maintain during the term of this Agreement, errors and omissions professional liability insurance in the minimum amount of $1,000,000 to protect the City from claims resulting from the Consultant's activities.
13.5 Subcontractors' Insurance. Consultant shall require all of its subcontractors to carry insurance, in an amount sufficient to cover the risk of injury, damage or loss that may be caused by the subcontractors' scope of work and activities provided in furtherance of this Agreement, including, but without limitation, the following coverages: Workers Compensation, Commercial General Liability, Errors and Omissions, and Automobile liability. Upon City's request, Consultant shall provide City with satisfactory evidence that Subcontractors have obtained insurance policies and coverages required by this section.
14. Business Tax. Consultant understands that the Services performed under this Agreement constitutes doing business in the City of Riverside, and Consultant agrees that Consultant will register for and pay a business tax pursuant to Chapter 5.04 of the Riverside Municipal Code and keep such tax certificate current during the term of this Agreement.
15. Time of Essence. Time is of the essence for each and every provision of this Agreement.
City's Right to Employ Other Consultants. City reserves the right to employ other Consultants in connection with the Project. If the City is required to employ another consultant to complete Consultant's work, due to the failure of the Consultant to perform, or due to the breach of any of the provisions of this Agreement, the City reserves the right to seek reimbursement from 7 17. Accounting Records. Consultant shall maintain complete and accurate records with respect to costs incurred under this Agreement. All such records shall be clearly identifiable.
Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
18. Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, configurations, descriptions, computer program data, or network or system information, input record data, written information, and other materials either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant and its employees, except as otherwise directed by City's Contract Administrator. Nothing furnished to Consultant which is otherwise known to the Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production, website, or other similar medium without the prior written consent of the City. This provision shall survive the expiration or termination of this Agreement.
Ownership of Documents. All reports, maps, drawings, and other contract deliverables prepared under this Agreement by Consultant shall be and remain the property of City.
Consultant shall not release to others information furnished by City without prior express written approval of City. This provision shall survive the expiration or termination of this Agreement.
20. Copyrights. Consultant agrees that any work prepared for City which is eligible for copyright protection in the United States or elsewhere shall be a work made for hire. If any such work is deemed for any reason not to be a work made for hire, Consultant assigns all right, title and interest in the copyright in such work, and all extensions and renewals thereof, to City, and agrees to provide all assistance reasonably requested by City in the establishment, preservation and enforcement of its copyright in such work, such assistance to be provided at City's expense but without any additional compensation to Consultant. Consultant agrees to waive all moral rights relating to the work developed or produced, including without limitation any and all rights of identification of authorship and any and all rights of approval, restriction or limitation on use or subsequent modifications. This provision shall survive the expiration or termination of this Agreement.
Conflict of Interest. Consultant, for itself and on behalf of the individuals listed in Exhibit "C," represents and warrants that by the execution of this Agreement, they have no interest, present or contemplated, in the Project affected by the above-described Services. Consultant further warrants that neither Consultant, nor the individuals listed in Exhibit "C" have any real property, business interests or income interests that will be affected by this projector, alternatively, that Consultant will file with the City an affidavit disclosing any such interest.
22. Solicitation. Consultant warrants that Consultant has not employed or retained any person or agency to solicit or secure this Agreement, nor has it entered into any agreement or 8 understanding for a commission, percentage, brokerage, or contingent fee to be paid to secure this Agreement. For breach of this warranty, City shall have the right to terminate this Agreement without liability and pay Consultant only for the value of work Consultant has actually performed, or, in its sole discretion, to deduct from the Agreement price or otherwise recover from Consultant the full amount of such commission, percentage, brokerage or commission fee. The remedies specified in this section shall be in addition to and not in lieu of those remedies otherwise specified in this Agreement.
23. General Compliance with Laws. Consultant shall keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Consultant, or in any way affect the performance of services by Consultant pursuant to this Agreement. Consultant shall at all times observe and comply with all such laws, ordinances and regulations, and shall be solely responsible for any failure to comply with all applicable laws, ordinances and regulations. Consultant represents and warrants that Consultant has obtained all necessary licenses to perform the Scope of Services and that such licenses are in good standing.
Consultant further represents and warrants that the services provided herein shall conform to all ordinances, policies and practices of the City of Riverside.
24. Waiver. No action or failure to act by the City shall constitute a waiver of any right or duty afforded City under this Agreement, nor shall any such action or failure to act constitute approval of or acquiescence in any breach thereunder, except as may be specifically, provided in this Agreement or as may be otherwise agreed in writing.
25. Amendments. This Agreement may be modified or amended only by a written agreement and/or change order executed by the Consultant and City.
26. Termination. City, by notifying Consultant in writing, shall have the right to terminate any or all of Consultant's services and work covered by this Agreement at any time. In the event of such termination, Consultant may submit Consultant's final written statement of the amount of Consultant's services as of the date of such termination based upon the ratio that the work completed bears to the total work required to make the report complete, subject to the City's rights under Sections 16 and 26 hereof. In ascertaining the work actually rendered through the termination date, City shall consider completed work, work in progress and complete and incomplete reports and other documents only after delivered to City.
26.1 Other than as stated below, City shall give Consultant thirty (30) days' prior written notice prior to termination.
26.2 City may terminate this Agreement upon fifteen (15) days' written notice to Consultant, in the event:
26.2.1 Consultant substantially fails to perform or materially breaches the Agreement; or
26.2.2 City decides to abandon or postpone the Project. 9 27. Offsets. Consultant acknowledges and agrees that with respect to any business tax or penalties thereon, utility charges, invoiced fee or other debt which Consultant owes or may owe to the City, City reserves the right to withhold and offset said amounts from payments or refunds or reimbursements owed by City to Consultant. Notice of such withholding and offset, shall promptly be given to Consultant by City in writing. In the event of a dispute as to the amount owed or whether such amount is owed to the City, City will hold such disputed amount until either the appropriate appeal process has been completed or until the dispute has been resolved.
28. Successors and Assigns. This Agreement shall be binding upon City and its successors and assigns, and upon Consultant and its permitted successors and assigns, and shall not be assigned by Consultant, either in whole or in part, except as otherwise provided in paragraph 9 of this Agreement.
29. Venue. Any action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or rights provided for by this Agreement shall be tried in the Superior Court of the County of Riverside, State of California, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county. In the event either party hereto shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition of this Agreement, it is mutually agreed that each party will bear their own attorney's fees and costs.
30. Nondiscrimination. During Consultant's performance of this Agreement, Consultant shall not discriminate on the grounds of race, religious creed, color, national origin, ancestry, age, physical disability, mental disability, medical condition, including the medical condition of Acquired Immune Deficiency Syndrome (AIDS) or any condition related thereto, marital status, sex, genetic information, gender, gender identity, gender expression, or sexual orientation, military and veteran status, in the selection and retention of employees and subcontractors and the procurement of materials and equipment, except as provided in Section 12940 of the California Government Code.
Further, Consultant agrees to conform to the requirements of the Americans with Disabilities Act in the performance of this Agreement.
Severability. Each provision, term, condition, covenant and/or restriction, in whole and in part, of this Agreement shall be considered severable. In the event any provision, term, condition, covenant and/or restriction, in whole and/or in part, of this Agreement is declared invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed from this Agreement and shall not affect any other provision, term, condition, covenant and/or restriction of this Agreement, and the remainder of the Agreement shall continue in full force and effect.
Authority. The individuals executing this Agreement and the instruments referenced herein on behalf of Consultant each represent and warrant that they have the legal power, right and actual authority to bind Consultant to the terms and conditions hereof and thereof.
33. Entire Agreement. This Agreement constitutes the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings or agreements of the parties. Neither party has been induced to enter into this Agreement by and neither party is relying 10 on, any representation or warranty outside those expressly set forth in this Agreement.
34. Interpretation. City and Consultant acknowledge and agree that this Agreement is the product of mutual arms-length negotiations and accordingly, the rule of construction, which provides that the ambiguities in a document shall be construed against the drafter of that document, shall have no application to the interpretation and enforcement of this Agreement.
34.1 Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of the Agreement or any of its terms. Reference to section numbers, are to sections in the Agreement unless expressly stated otherwise.
34.2 This Agreement shall be governed by and construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement.
34.3 In the event of a conflict between the body of this Agreement and Exhibit "A" - Scope of Services, attached hereto, the terms contained in Exhibit "A" shall be controlling.
Digital and Counterpart Signatures. Each party to this Agreement intends and agrees to the use of digital signatures that meet the requirements of the California Uniform Electronic Transactions Act (Civil Code §§ 1633.1, et seq.), California Government Code § 16.5, and California Code of Regulations Title 2 Division 7 Chapter 10, to execute this Agreement. The parties further agree that the digital signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures for purposes of validity, enforceability, and admissibility. For purposes of this section, a "digital signature" is defined in subdivision (d) of Section 16.5 of the Government Code and is a type of "electronic signature" as defined in subdivision (h) of Section 1633.2 of the Civil Code. This Agreement may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument. Each certified or authenticated electronic copy of an encrypted digital signature shall be deemed a duplicate original, constituting one and the same instrument and shall be binding on the parties hereto.
36. Exhibits. The following exhibits attached hereto are incorporated herein to this Agreement by this reference:
Exhibit "A" - Scope of Services
Exhibit "B" - Compensation
Exhibit "C" - Key Personnel
Exhibit "D" - Supplemental Agreement for Assigned Project [SIGNATURES ON FOLLOWING PAGE.]
11 N WITNESS WHEREOF, City and Consultant have caused this Agreement to be dul xecuted the day and year first above writter
CITY OF RIVERSIDE, KOSMONT TRANSACTIONS
a California charter city and municipal SERVICES, INC., a California corporation corporation, doing business as KOSMONT
FINANCIAL SERVICES
Larry Kosmont
By: By: Larry Kosinant (May 24, 2023 09:29 PDT)
City Manager Print Name: Larry Kosmont
Title: CEO
(Signature of Board Chair, President, or
Vice President)
ATTESTED TO:
and
By:
City Clerk arry rosmont
3V Larry Kosmont (May 24, 2023 09:29 PDT)
Print Name: Larry Kosmont
Title: Secretary
CERTIFIED AS TO AVAILABILITY OF FUNDS: (Signature of Secretary, Assistant Secretary, CFO, Treasurer, or Assistant
Treasurer)
By: Kistllen
Chief Financial Officer
APPROVED AS TO FORM:
Susan Wilson
5У: Susan Wilson (May 30, 2023 17:20 PDT)
Assistant City Attorney
I\Rc-citylawlcycom\WPDOCS\D017P036\00709612.DOC
23-0330 SDW 4/11/23
12 EXHIBIT "A"
SCOPE OF SERVICES
EXHIBIT A
Scope of Services
The City would like to establish a pool or panel of qualified Companies to provide municipal financial advisory services for each of the following six (6) sectors: General Fund and RDA, Sewer Fund, Electric and Water Funds (RU), Special Districts (Community Facility and Assessment Districts), Swap and Arbitrage (all funds), and Real Estate and Financial Advisory (P3 projects). Companies may submit a proposal for any and/or all the sectors listed above and should clearly specify which sectors) the proposal is for. The City anticipates selecting the two highest-ranking Companies for each sector, and then utilizing the highest-ranking firms for the various types of debt-related projects that may be needed throughout the term of this contract.
Projects and advisory services include but are not limited to: new money debt issuances, credit rating agency presentations and ongoing maintenance, evaluating and identifying refinancing, liquidity, and swap unwinding opportunities.
The City intends to work directly with the top ranked Companies in each sector for the related services outlined below. The City recognizes that advisory services surrounding this type of work is a specialized area of expertise. Furthermore, the City acknowledges that time constraints related to debt issuance and compliance reporting are crucial to holding the City to a high level of fiscal responsibility. With that in mind, the City reserves the right to call upon the second highest ranked Company in each sector if the City deems it necessary or beneficial to do so. Each Company will be selected for a specific project at the sole discretion of the City. The City does not guarantee a certain amount of projects to any specific Company.
SERVICES RELATED TO FINANCIAL PLANNING
• Serve as the City's fiduciary and key project coordinator on large financing projects.
Maintain timelines and schedules, coordinate with external and internal team members, and keep all parties apprised. We strongly recommend a meeting schedule solution or application to organize the myriad of meetings and attendees related to each project. • Provide advice regarding various financing options available and methods the City could use to finance the construction of facilities and re-finance outstanding debt. The financial advisor is expected to recommend the best financing options, while minimizing interest cost.
• Explore and evaluate short-term financing options, including but not limited to, bond anticipation notes and line of credit, as well as long-term financing, including the development on a long-term financial plan, sizing of each bond issue, and calculations of the resulting debt service requirements.
• Proactively inform the City of events in the debt markets and economy in general that may have an impact on decisions to issue additional debt, refund bonds, or complete other debt or financing transactions. Provide information that may influence current outstanding issues.
• Provide financial consulting services as required in matters related to debt planning and debt management.
• Assist as needed in the review of financial policies (i.e., policies pertaining to investments, financing, swaps, etc.) and debt compliance and disclosure policies. Make suggestions on City policies and other debt administration procedures as necessary to align with best practices.
• Advise on current market conditions, future bond issues, and other information which might be influenced by interest rates and bidding conditions; these factors will be considered for the timing, scheduling, and structuring of each stage of a bond issue to produce the best financing terms. Recommendations for and assistance in acquiring bond insurance, if needed, are also to be provided.
• Provide financial consultant services, as needed, pertaining to obtaining or renewing credit facilities.
• Assist in evaluating remarketing agent, dealer, and credit facility performance for commercial paper program and variable rate debt, including evaluating rates, fees, and other costs.
• Attend and participate in City Council, City Council Finance Committee, Board of Public Utilities, and other meetings as required.
• Advise the City in performing due diligence investigations with respect to Companies that the City may contemplate using in financial transactions. Such due diligence shall include matters pertaining to the knowledge of, or investigation into a Company's alleged or convicted financial misconduct, securities violation, or Justice Department investigation(s).
• Provide assistance in identifying and obtaining new sources of funds for capital needs, such as may be available from state and/or federal programs. • Assist in maintaining credit rating agency relationships, including preparation for the City's periodic credit rating review, to ensure the most favorable rating possible. • Prepare and present reports and/or presentations as needed to the City Council, and the City's various Boards and Commissions. Presentations may at times be designed to facilitate an understanding of public sector financing and its implications to the City. • Attend/participate (in person or by telephone, as required) in meetings related to financial activities as needed.
• Provide service in other financial analyses and technical research as may be deemed desirable by the City.
SERVICES RELATED TO DEBT ISSUANCE
• Advise on the amount, timing, and nature of borrowing, as well as the credit structure, maturity schedule, call provisions and other items, as needed. • Provide debt service schedules (principal and interest) for future bond issues and final pricing documents.
• Provide bid solicitations, assistance with selection process, negotiation of contract terms, and arrangements for fee payments, for document printing, ratings, paying agents/registrar services, verification agents, underwriters, and other related, required • Prepare request for proposals and provide a listing of prospective bidders to facilitate the selection of service providers, such as liquidity providers, property appraisers, absorption specialists, etc. Provide advice, coordinate, and by following the requirements under the City Charter, assist with the bidding process.
• Advise on the merits of competitive, negotiated, or private placement of debt. • Recommend financial provisions to be included in the bond transcript documents. • Participate, as requested by the City, in assembling materials and representing the City in dealings with bond counsel, rating agencies, the City Council, underwriters, and others, as needed, in finalizing offering documents, obtaining required approvals, and closing a bond issue.
• Act as a liaison to the municipal bond market, including, but not limited to, responding to questions or requests for information from underwriters and/or prospective investors. • Evaluate pricing received for proposed bond issues and recommend the most favorable to the City.
• Provide a post-market evaluation/verification of, including, but not limited to, the underwriters' spread, reasonableness of coupon rates and discounts/ premiums, issuance at a fair market price, and the costs of issuance.
• Provide all other services necessary and/or requested by the City for the issuance of bonds and coordination of an offering
• Review, analyze and provide guidance on the extension or replacement of letters of credit (LOC) for outstanding variable rate debt, including evaluation of other financing alternatives, such as refunding the bonds with long-term fixed rate debt, short-term fixed rate notes, or floating rate notes.
REPORTING
The financial advisor shall prepare and submit financial analyses and other reports as requested they including be he bent pring reports, chedule o
inancing transactions including distribution lists, review and analysis of financing proposals refunding and debt restructuring analysis, debt service schedules, credit analysis, and rating agency presentations.
SERVICES RELATED TO REAL ESTATE AND FINANCIAL ADVISORY
• Guide development of a program reflecting the highest and best use and analyze financial feasibility to understand the impacts of core project parameters, including key public policy goals, on returns.
• Create compelling project benefits narratives that draw on an assessment of economic and fiscal impacts, as well as other quantitative and qualitative benefits that align with local stakeholder goals.
• Gather insights that can shape the project vision by communicating benefits and trade- offs among key governmental, business, and community stakeholders.
EXHIBIT "B"
COMPENSATION
RFP No 2261
EXHIBIT B
FEE SCHEDULE
Fee Schedule 1 - Debt Issuance
Indicate the Sectors) this Schedule applies to:
Real Estate and Financial Advisory (P3 Projects)
Year 1
Issuance Type < $50 Million > $50 Million
Competitive fixed rate bonds: $ 30,000 $ 35,000
Competitive refunding fixed rate bonds: $ 30,000 $ 35,000 Negotiated fixed/variable rate bonds: $ 35,000 $ 42,500 Negotiated fixed rate refunding bonds: $ 35,000 $ 42,500 Year 2
Issuance Type < $50 Million > $50 Million
Competitive fixed rate bonds: $ 32,500 $ 37,500
Competitive refunding fixed rate bonds: $ 32,500 $ 37,500 Negotiated fixed/variable rate bonds: $ 37,500 $ 45,000 Negotiated fixed rate refunding bonds: $37,500 $ 45,000 Year 3
Issuance Type < $50 Million > $50 Million
Competitive fixed rate bonds: $ 35,000 $ 40,000
Competitive refunding fixed rate bonds: $ 35,000 $ 40,000 Negotiated fixed/variable rate bonds: $ 40,000 $ 47,500 Negotiated fixed rate refunding bonds: $ 40,000 $ 47,500 Year 4
Issuance Type < $50 Million > $50 Million
Competitive fixed rate bonds: $ 37,500 $ 42,500
Competitive refunding fixed rate bonds: $ 37,500 $ 42,500 Negotiated fixed/variable rate bonds: $ 42,500 $ 50,000 Negotiated fixed rate refunding bonds: $ 42,500 $ 50,000 Year 5
Issuance Type < $50 Million > $50 Million
Competitive fixed rate bonds: $ 40,000 $ 45,000
Competitive refunding fixed rate bonds: $ 40,000 $ 45,000 Negotiated fixed/variable rate bonds: $ 45,000 $ 52,500 Negotiated fixed rate refunding bonds: $ 45,000 $ 52,500
RFP No 2261
Fee Schedule 2 - Swap and Arbitrage Reporting
Indicate the Sectors) this Schedule applies to:
We are not proposing to provide this service
Fee
Arbitrage Reports (Annual) $ per report
Arbitrage Reports (5 year) $ per report
Annual Swap Reporting (Fee should include monthly mark-to-market $ valuations)
RFP No 2261
Fee Schedule 3 - As Needed Services
Indicate the Sector(s) this Schedule applies to:
Real Estate and Financial Advisory (P3 Projects)
Proposed Key Personnel Year 1 Year 2 Year 3 Year 4 Year 5 Hourly Rates Position Titles Fee Fee Fee Fee Fee
1 President & CEO $ 445/per hour $ 460/per hour 470/per hour 485/per hour 495/per hour 2Sr. MD/VP/Advisors 350 /per hour 360 /per hour 370 /per hour 380 /per hour 390/per hour Only fill in the necessary 3 Vice President 225/per hour $ 235/per hour 240 /per hour 245/per hour 250/per hour amount of positions. 4 Sr. Project Analysts 195/per hour $ 200/per hour 205/per hour 215/per hour GA 220/per hour 5 Project Analyst 165 /per hour $ /per hour 175 /per hour 180 /per hour 185/per hour Assistant Project
6 Analyst 125/per hour 130 /per hour 135 /per hour 140 /per hour GA 145/per hour 95/per hour 100 /per hour 105 /per hour 105/per hour 110 /per hour 8 Clerical Support 70/per hour 75 /per hour 75 /per hour 80 /per hour 80 /per hour /per hour /per hour /per hour /per hour /per hour
10 /per hour /per hour /per hour /per hour /per hour
Miscellaneous Fees Year 1 Year 2 Year 3 Year 4 Year 5
Cost Description Fee Fee' Fee Fee' Fee'
1 Administrative Fee 4% of monthly service fees
The City recognizes that
each engagement may 2 Travel At Cost
include reimbursable costs Printing/Package At Cost
3 Delivery
such as travel, etc. Please 4 Project/Market Data At Cost list any such fees here.
5 Third Party Vendors 1.1x fees and cost
6 Court Appearances 1.5x Hourly Rates
1 Year 1 Fees apply to all years
Total cost contingent upon a scope of services that may be incorporated into the Agreement on a project by project basis.
EXHIBIT "C"
KEY PERSONNEL
SECTION III
CITY OF RIVERSIDE
COMPANY PERSONNEL
Proposal for Municipal Financial Advisory Services
The Municipal Advisory Professionals who will be primarily responsible for overseeing the City's debt issuance activities will be: Larry Kosmont, President of KFS and CEO of Kosmont Companies, whose career spans over 40+ years and encompasses structuring and implementation of billions of dollars of public/private real estate and public finance transactions; and Julio Morales, Senior Managing Director of KFS - who will manage the day-to-day operation of any financing - who has nearly 30 years of professional experience as both a Municipal Advisor and an executive level public sector professional within many different agencies.
Members of our team will always be available to respond to daily requests for information and analysis. This requires a commitment of qualified personnel and internal communication capabilities such that we are able to respond to most information requests within 24-hours, if not more rapidly, for routine matters. In serving as the City's financial advisor, our engagement will be guided by the following objectives:
• KFS will provide independent professional advice and recommend actions that are consistent with the City's policies and objectives - As a fiduciary, we will always act in the best interest of the City • KFS will assure the availability of senior personnel to meet with staff and the governing board to present our analyses and recommendations
• KES will effectively represent the City in overseeing all financing processes to assure that the results are the most effective and least costly
The KFS team member resumes and qualifications for Mr. Kosmont, Mr. Morales, and additional key team members may be found in the Appendix.
The KES team is enthusiastic, ready, and available to provide these services when called upon.
Kosmont Companies has a total of 18 professionals. KFS has six (6) accredited Municipal Advisor Professionals on staff and is uniquely qualified not only to provide the City with the scope of services required in the RFP, but to enhance and expand those services to integrate the City's public service and financial goals on a holistic level.
Kosmont Financial Services
Mailing Address: 1601 N Sepulveda Blvd, #382 (424) 297-1073 Physical Address: 2301 Rosecrans Ave, Suite 4140 Manhattan Beach, CA 90266 www.KosmontFinancial.com El Segundo, CA 90245 Kosmont Financial Services is an Independent Registered Municipal Advisor with the SEC and the MSRB.
Page | 9
SECTION III
COMPANY PERSONNEL CITY OF RIVERSIDE
Proposal for Municipal Financial Advisory Services
Kosmont has a proven track record and the qualifications to provide the knowledge, guidance, and execution of those services necessary to assist the City. Please see a table below of a summary of the breadth of experience our firm provides:
Years of
Team Member Role Experience
Larry Kosmont Economic Development Strategies 35+
Julio Morales CFDs / Pension / Structured Products / P3s 27+ Dan Massiello Public Finance 28+
Joseph Dieguez EIFDs 14+
Stephanie Ontiveros Property Tax and Tax Increment Analysis/Forecasting 25+ Felicia Williams Special Districts / Land Use Analysis 25+ [The rest of this page is intentionally left blank]
Kosmont Financial Services
Mailing Address: 1601 N Sepulveda Blvd, #382 (424) 297-1073 Physical Address: 2301 Rosecrans Ave, Suite 4140 Manhattan Beach, CA 90266 vww.KosmontFinancial.cor El Segundo, CA 90245 Kosmont Financial Services is an Independent Registered Municipal Advisor with the SEC and the MRB.
Page | 10
EXHIBIT "D"
SUPPLEMENTAL AGREEMENT FOR ASSIGNED PROJECT
Consultant:
Project Name:
The Project Narrative for [name of project] ("Project"), a copy of which is attached hereto as Exhibit "A" and incorporated herein by this reference, and Consultant's proposal dated [date of proposal], a copy of which is attached hereto as Exhibit "B" and incorporated herein by this reference, shall constitute a supplement to the Master Professional Consultant Services Agreement for Financial Advisory Services Panel, by and between City and Consultant, dated [date of executed master agreement] ("Agreement"). Consultant agrees to perform the services described in the Project Narrative within the time set forth in the Notice to Proceed for the amount of [written amount Dollars (SO). Performance of the services shall be subject to the terms and conditions contained in the Agreement.
Dated this day of _ 2023.
CITY OF RIVERSIDE, a California CONSULTANT NAME,
charter city and a municipal corporation _legal business entity, e.g., a sole proprietor California corporation, etc.
By: By:
City Manager
Title:
Attest: By: _
City Clerk
Title:
Approved as to form:
By:
Deputy City Attorney
Certified as to Availability of Funds:
By:
Chief Financial Officer/Treasurer