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HomeMy WebLinkAboutE- 7 Professiona Service Agreement for Redevelopment Project Management Services Provided by Kosmont Partnersi AGENCY CONSENT ITEM TO: THE HONORABLE CHAIRPERSON AND MEMBERS OF THE BOARD FROM: JOSE AMADOR, ASST. ECONOMIC DEVELOPMENT/REDEVELOPMENT DIRECTOR ROSEANNA J. JARA, SR. ACCOUNTANT -REDEVELOPMENT VIA: RICK COLE, CITY MANAGER DATE: MARCH 3, 2003 SUBJECT: PROFESSIONAL SERVICES AGREEMENT FOR REDEVELOPMENT PROJECT MANAGEMENT SERVICES PROVIDED BY KOSMONT PARTNERS RECOMMENDATION It is recommended that the Board of Directors approve the Professional Services Agreement for Kosmont Partners in the amount not -to -exceed $75,000, authorize the City Manager to execute same, and direct staff to prepare the necessary budget amendments and transfers. BACKGROUND The Agency is currently very short-staffed, having only one employee available to complete the extensive and complex issues involved in the Agency's various ongoing projects, including the Talley Building, Dr. Reyes' Dental Office, Block 36, and the Foothill Center. In order to remedy this situation, staff has contacted several possible resources which deal in this specific type of project management, including Kosmont Partners, Overland Resources and other independents in this field. After discussions with the various resources, staff recommends that Kosmont Partners provide these services. Kosmont Partners and its subsidiaries are able to supply any professional services that are necessary to complete the project management tasks for the four abovementioned projects. They are also very familiar with Redevelopment law and projects in general, and most of our projects in particular. They have already completed the first 33433 reuse reports for the Talley Building project on a previous contract. They have also been present at the Foothill Center development meetings, and have provided professional real estate and economic advisory services to the Agency for that project. A scope of their services, not to exceed $75,000, is detailed in Exhibit "A" of the attached Agreement. They are available to begin work immediately after finalization of the Agreement, and have offered to provide part of their services at discounted prices. Kosmont Partner's primary liaison to the Agency would be Henry Madrid, a Partner at Kosmont, who has had over 25 years of experience in this field. His bio,and those of two other primary contacts, are attached. FISCAL IMPACT These services will be funded from various sources. Salary and benefit savings derived from the unfilled Director position will fund $25,000. The remaining $50,000 will be funded from professional services already budgeted in the Central Business District project budgets, particularly in the Block 36 and Foothill Center project budgets, which are showing low expenditure rates. It was always staff's intention to get some project management assistance on these two projects. Staff will prepare the necessary budget amendments and transfers to accomplish these actions. IA:Rlycs Attachment-Kosmont Professional services Agreement Bios for Principals of Kosmont CITY OF AZUSA REDEVELOPMENT AGENCY PROFESSIONAL SERVICES AGREEMENT 1. PARTIES AND DATE. This Agreement is made and entered into this day of March, 2003, by and between the City of Azusa Redevelopment Agency, a municipal organization organized under the laws of the State of California with its principal place of business at 213 East Foothill Boulevard, Azusa, California 91702-1295 ("City") and Kosmont & Associates, Inc. doing business as Kosmont Partners, with its principal place of business at 601 South Figueroa Street, Los Angeles, California 90017 ("Consultant'). City and Consultant are sometimes individually referred to as "Party" and collectively as "Parties." 2. RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing Real Estate, Economic Advisory, and Redevelopment Project Management services, is licensed in the State of California, and is familiar with the plans and projects of the Agency/City. 2.2 Project. City desires to engage Consultant to render such services for the Azusa projects ("Project') as set forth in this Agreement. 3. TERMS. 3.1 Scope of Services and Term. 3. 1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional consulting services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3.1.2 Tenn. The term of this Agreement shall be from March 5, 2003 to September 5, 2003, unless earlier terminated, or extended by written amendment. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. 3.2 Responsibilities of Consultant. 3.2.1 Control and Payment of Subordinates: Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit `B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City. 3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. The key personnel for performance of this Agreement are as follows: Ross Selvidge, Ph.D., and Henry Madrid, Partner. 3.2.5 City's Representative. The City hereby designates Rick Cole, Redevelopment Executive Director, and/or Jose Amador, Assistant Director of Economic Development/ Redevelopment, or his or her designee, to act as its representative for the performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for all purposes under this Contract. Consultant shall not accept direction or orders from any person other than the City's Representative or his or her designee. 3.2.6 Consultant's Representative. Consultant hereby designates Henry Madrid, Partner, or his or her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. 3.2.8 Standard of Care: Performance of Em llooyees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub -consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Laws and Repulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.2.10 Insurance. 3.2.10.1 Time for Compliance. Consultant shall not commence Work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. 3.2.10.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation and Employer's Liability: Workers' Compensation limits as required by the Labor Code of the State of California. Employer's Liability limits of $1,000,000 per accident for bodily injury or disease. 3.2.10.3 Professional Liability. Consultant shall procure and maintain, and require its sub -consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. Such insurance shall be in an amount not less than $1,000,000 per claim, and shall be endorsed to include contractual liability. 3.2.10.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies: (A) General Liability. The general liability policyshall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insured with respect to the Work or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. . (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. (C) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers. 3.2.10.5 Separation of Insureds,• No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents and volunteers. 3.2.10.6 Deductibles and Self -Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. Consultant shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents and volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.2.10.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than ANIII, III, licensed to do business in California, and satisfactory to the City. 3.2.10.8 Verification of Coverage. Consultant shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement under the manner expressed in Exhibit "C" attached hereto and incorporated by reference, and at the rates set forth in Exhibit "D" attached hereto and incorporated herein by reference. The professional service fees will be on a Time and Materials basis, and, in addition to the professional service fees, City agrees to reimburse all out-of-pocket expenses such as travel and mileage, professional printing, conference calls, and delivery charges for messenger and overnight packages at actual costs. Finally, in lieu of tracking and charging direct expenses for in-house copy, fax, telephone and postage costs, an administrative surcharge will be computed at four percent (4.0%) of monthly Consultant professional service fees incurred. All compensation under this agreement will not exceed $75,000.00. Any unpaid invoices after 45 days shall accrue interest at the rate of 10% per annum. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Payment of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.3.4 Extra Work. At anytime during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from City's Representative. 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses 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. 3.5 General Provisions. 3.5.1 Termination of Ajzreement. 3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: Kosmont Partners 601 South Figueroa Street City: Los Angeles, CA 90017 Attn: Larry J. Kosmont, CRE City of Azusa 213 East Foothill Blvd. Azusa, CA 91702-1295 Attn: Jose Amador, Assistant Director of Economic Development/Redevelopment Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3 Ownership of Materials and Confidentiality. 3.5.3.1 Documents & Data: Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to 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 or other similar medium without the prior written consent of City. 3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.5.5 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reason- able attorney's fees and all other costs of such action. 3.5.6 Indemnification. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions or willful misconduct of Consultant, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Consultant shall pay and satisfy any judgment, award or decree that maybe rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant=s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers, employees, agents or volunteers. 3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties. 3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Los Angeles County. 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.10 City's Right to Emery Other Consultants. City reserves right to employ other consultants in connection with this Project. 3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. 3.5.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operatiori of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.5.13 Construction: References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment: Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17 Invalidity: Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.5.21 _Authority to Enter Agreement Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.5.22 Counterparts. This Agreement maybe signed in counterparts, each of which shall constitute an original. 3.6 Subcontracting. 3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. SIGNATURES ON THE FOLLOWING PAGE CITY OF AZUSA By: Rick Cole City Manager Attest., City Clerk Approved as to Form: Best Best & Krieger LLP City Attorney KOSMONT PARTNERS Larry J. Kosmont, CRE President and CEO EXHIBIT "A" SCOPE OF SERVICES The Consultant will provide project management services for the following primary projects as detailed below: Task 1: Talley Building Project -619/621 N. Azusa Avenue 1. Initial orientation meeting and materials review; 2. Review restoration construction costs; 3. Review Pro Forma and determine subsidy amount required for the project. 4. Assist with DDA structuring and preparation in conjunction with the City Attorney and City's Representative. 5. Prepare and provide revised 33433 reuse report as necessary. Task 2: Dr. Reyes Dental Office -613/615 N. Azusa Avenue 1. Initial orientation meeting and materials review; 2. Review new scope of development and added costs; 3. Review and prepare new Pro Forma to include housing; 4. Assist novice developeribusiness owner. 5. Assist with DDA structuring and preparation in conjunction with the City Attorney and City's Representative; 6. Identify possible affordable Housing and funding, if any; 7. Prepare and provide 33434 reuse report. Task 3: Block 36 1. Initial orientation meeting and materials review; 2. Redefine new scope of development to include project phasing; 3. Define new and more detailed costs; 4. Review and prepare new Pro Forma and determine level of subsidy; 5. Prepare and provide 33434 reuse report; 6. Review possible hold-out acquisition, costs and strategies associated with same; 7. Address issue of adequate utility capacity for the project, including developer utilityneed vs. City's existing and necessary utility capacity; 8. Assist City in identifying financial resources to fill in subsidy gap; 9. Assist with DDA structuring and preparation in conjunction with the City Attorney and City's Representative. Task 4: Foothill Center Development 1. Initial orientation meeting and materials review; 2. Review project scope, public benefit, and justify subsidy; 3. Review and prepare Pro Forma; 4. Ascertain City's full project costs for off-site improvements; 5. Assist with negotiations and structuring the deal package. A-1 EXHIBIT "B" SCHEDULE OF SERVICES Consultant understands that time is of the essence and is prepared immediately to begin work on this assignment upon receipt of written authorization of this proposal agreement. City already has provided Consultant with certain information about the developer's proposed redevelopment of the Property. Upon authorization to proceed, Consultant will prepare an information request describing any additional information required to complete the assignment. At this point in time, because the timing of receipt and nature of the information that will be provided is not known, it is not possible to establish a definite date by which the assignment will be completed. Consultant is aware that City desires to have the Scope of Services completed no later than September 5, 2003 ("Target Completion Date"). Consultant will endeavor to complete the Scope of Services by on or before the Target Completion Date. However, given the long history of external factors and unexpected eventualities that have delayed the Project in the past, Consultant cannot and does not guarantee completion of the Scope of Services by the Target Completion Date. QAFINAL MARCH 3, 2002 CC MEETINGICC MEETING MARCH 3, 2003Wc$ TMfServAgml_0303.doc EXHIBIT "C" COMPENSATION Consultant has developed the following estimated not -to -exceed budget for Tasks 1 through 4, which involve a variety of tasks, including multiple meetings with the Clients, developers, and City's Representatives. It is impossible to estimate the time and cost of this task at this time. Therefore Consultant will conduct this task on a time and materials basis. Task 1: Talley Building $17,000 Task 2: Dr. Reyes Dental Office 17,000 Task 3: Block 36 30,000 Task 4: Foothill Center Development 11.000 Total (not -to -exceed amount) $75,000 Time & Materials services shall be invoiced monthly on a time and materials basis at Consultant's discounted billing rates, as shown on Attachment A. In addition to the professional fees, Client agrees to reimburse all out-of-pocket expenses such as travel and mileage, professional printing, conference calls, and delivery charges for messenger and overnight packages at actual costs. An administrative surcharge for in-house copy, fax, telephone and postage costs will be computed at four percent (4.0%) of monthly Consultant professional service fees incurred. Any unpaid invoices after 45 days shall accrue interest at the rate of 10% per annum. Consultant is prepared to commence work on the Scope of Services immediately upon receipt of written authorization. QAFINAL MARCH 3, 2002 CC MEETNGICC MEETING MARCH 3, 2003\KgexILProtSmAgnrt_0303.doc EXHIBIT "C" COMPENSATION Consultant has developed the following estimated not -to -exceed budget for Tasks 1 through 4, which involve a variety of tasks, including multiple meetings with the Clients, developers, and City's Representatives. It is impossible to estimate the time and cost of this task at this time. Therefore Consultant will conduct this task on a time and materials basis. Task l: Talley Building $17,000 Task 2: Dr. Reyes Dental Office 17,000 Task 3: Block 36 30,000 Task 4: Foothill Center Development 11,000 Total (not -to -exceed amount) $75,000 Time & Materials services shall be invoiced monthly on a time and materials basis at Consultant's discounted billing rates, as shown on Attachment A. In addition to the professional fees, Client agrees to reimburse all out-of-pocket expenses such as travel and mileage, professional printing, conference calls, and delivery charges for messenger and overnight packages at actual costs. An administrative surcharge for in-house copy, fax, telephone and postage costs will be computed at four percent (4.0%) of monthly Consultant professional service fees incurred. Any unpaid invoices after 45 days shall accrue interest at the rate of 10% per annum. Consultant is prepared to commence work on the Scope of Services immediately upon receipt of written authorization. QAFINAL MARCH 3, 2002 CC MEETINGICC MEETMG MARCH 3, 20031K(entProtServAgmt 0303.doe EXHIBIT "D" CONSULTANT'S 2003 PUBLIC AGENCY FEE SCHEDULE Professional Services: President & CEO $215.00/hour Discounted Communications Rate $194.00/hour Executive Vice President/COO $215.00/hour Discounted Communications Rate $194.00/hour Partner $190.00/hour Discounted Communications Rate $171.00/hour Senior Vice President $190.00/hour Discounted Communications Rate $171.00/hour Senior Manager $155.00/hour Vice President/Associate $125.00/hour Project Analyst $ 90.00/hour GIS Mapping/Research $ 85.00/hour Graphics Services $ 75.00/hour Clerical Support $ 55.00/hour Reimbursables at cost. Discounted Communications Rate: These rates apply to miscellaneous memos, phone calls, and meetings required to keep City staff informed of project progress. Subcontractors' Services: Subcontractors' fees if applicable will be reimbursed at cost plus 10% handling. Charees for Court/Deposition/Expert Witness related anoearances• Court -related activities (court appearances, depositions, and expert witness activities) if applicable, will be charged at a court rate of 2.0 times Kosmont Partners' scheduled rates, with a 4 -hour minimum. These rates shall remain in effect until December 31, 2003. KP - Pub1001 Rev d by M3 n5/113 Q TINAL MARCH 3, 2002 CC MEETIWCC MEETING MARCH 3. 200311Co61 jtProfScrvAgmt_0303.doc Larry J. Kosmont President & CEO Mr. Larry J. Kosmont, CRE, is the President & CEO of Kosmont Companies, which he founded in 1986. Mr. Kosmont has an extensive track record as a public real estate manager and private real estate consultant. His expertise is in creating and managing public/private transactions through phases of entitlement approvals, negotiation, financing and implementation. During his 26 -year career in public and private real estate, he has negotiated and managed real estate transactions with a total value exceeding $10 billion. He is a nationally recognized real estate and economic development expert, specializing in matching private sector real estate opportunities with public sector land use policies, regulations, and financing/incentive programs.'He is a designated Counselor of Real Estate (CRE). Mr. Kosmont has assisted hundreds of local government agencies in project and policy decisions ranging from large- scale economic development to site-specific real estate strategies. Mr. Kosmont has guided over one thousand projects for public agencies and private sector clients in obtaining approvals, structuring deal terms and securing public and private financing. Kosmont Companies was started in 1986, as Kosmont Partners. Kosmont Companies consist of four separate companies, which collectively provide a full-service approach to public-private transactions. Kosmont Companies provide consulting, brokerage, finance and political advisory services specializing in economic development, finance, and entitlement services to both public agencies and private corporations. Kosmont Companies is a one-stop shop, which is well known for successfully guiding public sector agencies and private sector clients in structuring win-win projects. Between 1975 and 1986, Mr. Kosmont served as City Manager and Director of various city departments including redevelopment, economic development, planning, housing, and transportation for numerous Southern California cities. As a leading advisor to the private sector, he has developed an acute understanding of what is needed in order to complete successful transactions with government. Mr. Kosmont is well known for his national publication Kosmont Cost of Doing Business Surveys, which compares taxes and incentives for 200 cities and counties nationwide, and is published in print and online. The media/press regard him as an authority in matters of doing business with the government and frequently use him as an information source on such topics. Mr. Kosmont participates in numerous speaking engagements throughout the United States on subjects pertaining to the interaction between governments and business. In 2001, Mr. Kosmont served as Commissioner of the Los Angeles Regional Water Quality Control Board, appointed by Governor Gray Davis. He served on the Metropolitan Water District (MWD) Board for 4 years, as an appointee of Los Angeles Mayor Richard Riordan. He also serves as an ex -officio Board Member of the California Redevelopment Association (CRA). Mr. Kosmont is Chairman of the Institute for a Better California (IBC), and is a Board Member on the following organizations: Greater Los Angeles Chamber of Commerce, California Redevelopment Association (ex -officio), Los Angeles County Economic Development Corporation (LAEDC), and California Center for Land Recycling (CCLR). In 1996, he was named Service Professional of the Year in the Los Angeles Business Journal's "Who's Who of Commercial Real Estate." Mr. Kosmont graduated from the University of Southern California with a Master's Degree in Public Administration with the honor of Graduate Fellow. He earned his bachelor's degree in Political Science/Economics from State University of New York at Binghamton, graduating Phi Beta Kappa and Magna Cum Laude. In 1989, he graduated from Leadership Los Angeles. From 1990 to 1991, he served as President of the Leadership Los Angeles Alumni Association. Henry Madrid Partner henry Madrid is a Partner of Kosmont Partners and a member of KP Economics - Public/Private Deals Group. He is a real estate professional with over 25 years of extensive and varied public and private sector experience. Henry has held a variety of public sector management positions with City government, redevelopment agencies, and asset management agencies. He served as Director of Real Estate for the nation's largest redevelopment agency and a'major public coastal development agency. Henry has also privately developed residential and commercial properties for investment purposes. Henry is experienced in all phases of the private and public sector real estate development process including market analysis, project planning, feasibility analysis, facilitating public/private transactions, and project implementation services for commercial, industrial, residential, and mixed-use land development. Additionally, he is experienced in providing a broad range of economic research and advisory services including economic development strategies, public policy development, urban technology solutions, public financial solutions, and public asset management. Notable public sector work includes airport asset management, transportation economics and joint development, urban technology planning, and corridor and downtown redevelopment and revitalization strategies. Henry is active in economic and urban planning professional organizations and a speaker in these areas.