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AGREEMENT FOR SPECIAL SERVICES
BETWEEN
KPMG LLP
AND
MERCED COUNTY
CONTRACT NO. __________
THIS AGREEMENT,
is made and entered into this by and between the County of Merced,
a political subdivision of the State of California, (hereinafter referred to as "County"), and
KPMG LLP, a Delaware-registered limited liability partnership located at 1225 17
th
Street,
Denver, CO 80202 (hereinafter referred to as "Consultant").
WHEREAS,
County is exploring potential improvements to the Merced County Castle
Airport (“Airport”), including but not limited to, contracting with a fixed base operator
(“FBO”), and assessing the potential for increased air cargo operations (together, the
“Project”); and
WHEREAS,
County desires Consultant to engage in discussions on behalf of the County
with FBO operators for the Project; and
WHEREAS
, County desires Consultant to assess the Airport’s potential to attract and
facilitate increased air freight and cargo operations on behalf of the County; and
WHEREAS,
County may additionally request Consultant to assist the County in
structuring and managing a competitive procurement process to identify and contract with
a FBO;
WHEREAS,
Consultant is specially trained, experienced, and competent to perform such
services in connection with the Project.
NOW, THEREFORE,
in consideration of the mutual covenants and promises herein
contained, the parties hereby agree as follows:
1.
SCOPE OF SERVICES
Consultant shall provide services in accordance with the terms and conditions
stated herein, and any specifically referenced attachments hereto. Consultant’s
services include, but are not limited to, the following:
A.
Phase 1: Freight and Airport Potential Feasibility Study ($225,000)
• Assess state of current regional and state freight market (air, rail, truck,
boat)
• Perform benchmarking analysis assessing air freight carried at up to four
(4) selected airports in California
• Identify potential FBOs, conduct research, and engage in market
outreach efforts with up to four (4) market participants to identify and
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evaluate feedback
• Identify current competitive air cargo facilities
• Review key drivers of freight demand for Airport, including:
-Input-output model-based estimates of commercial commodity demand
-Consumer demand estimates from Household Expenditure Surveys
• Perform market forecast and scenario analysis:
- Up to three (3) scenarios: (base, low and high case scenarios) by broad
commodity group in value / tons
• Conduct market opportunity analysis to assess viable future market
capture prospects based on Airport’s existing and planned infrastructure
and potential future market conditions
B. Optional Phase 2: FBO Pre-Procurement and Market Engagement
Services
$149,997)
• Conduct interviews of two (2) County personnel and perform review of
existing Airport materials from the County and its consultants, including
planning and technical documentation, Airport Layout Plan, Airport
Master Plan, existing Airport leases, etc.
• Review, support drafting, and provide other feedback of County draft
solicitation documentation
• Review and provide feedback of County draft FBO services contract
• In connection with the Freight Potential Feasibility Study described
above, evaluate current and future Airport uses
• Engage in market outreach efforts with up to four (4) market participants
to identify and evaluate feedback in advance of any FBO solicitation
C. Optional Phase 3: FBO Negotiations Support ($115,075)
If Directed by COUNTY, CONSULTANT shall also:
• Finalize and issue draft FBO solicitation documents
• Support the County’s evaluation of commercial and financial elements of
proposals received
• Support COUNTY negotiations with preferred FBO proposer.
2.
TERM
The term of this Agreement shall commence on the 1st day of June, 2025, and
continue until the 31st day of May, 2026, unless sooner terminated in accordance
with
the
sections
entitled
“CONDITION
SUBSEQUENT
TO
NON-
APPROPRIATION OF FUNDING”, “TERMINATION FOR CONVENIENCE” or
“TERMINATION FOR CAUSE”, as set forth elsewhere in this Agreement.
3.
COMPENSATION
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County agrees to pay Consultant a Total Contract Price of up to two hundred
twenty-five thousand dollars and no cents ($225,000.00) for Phase 1; one hundred
forty-nine thousand nine hundred ninety-seven dollars and no cents ($149,997.00)
for Optional Phase 2, if selected; and one hundred fifteen thousand seventy-five
dollars and no cents ($115,075.00) for Optional Phase 3, if selected
for all of
Consultant’s services to be provided herein, as are more specifically set forth
under Section 1, “SCOPE OF SERVICES".
The Total Contract Price shall include all of County’s compensation to Consultant,
including reimbursement for all expenses incurred by Consultant in the
performance of this Agreement. No other fees or expenses of any kind shall be
paid to Consultant in addition to the Total Contract Price. In no event shall the total
services to be provided hereunder exceed the Total Contract Price. This fee may
be subject to withholding for State of California income tax.
Any and/or all payments made under this Agreement shall be paid by check,
payable to the order of the Consultant and be mailed or delivered to Consultant at:
US Mail
ACH/Wire
Overnight Delivery
KPMG
LLP
Dept 0754
PO Box 120754
Dallas TX 75312-0754
TIN: 13-5565207
Bank of New York Mellon
500 Ross Street, Rm. 0940
Pittsburgh, PA 15262
ABA# 043000261
Acct#: 0306931
Swift/BIC IRVTUS3N
KPMG LLP
Lockbox 0754
1501 N. Plano Rd.
Richardson, TX 75081
Consultant may request that County mail the check to Consultant to such other
address as Consultant may from time to time designate to County. Such request
must be made in writing in accordance with the procedures as outlined under
Section 7, “NOTICES”.
4.
PRICING CONDITIONS
County agrees to pay Consultant for all services required herein as prescribed,
fixed at the submitted pricing, which shall include reimbursement for all expenses
incurred. No other expenses shall be paid to Consultant without formal approval
of the County’s Board of Supervisors or its authorized agent. In no event shall the
total services to be performed hereunder exceed $490,072.
County shall not be responsible for any charges or expenses incurred by
Consultant, their agents, employees or independent contractors, other than those
listed herein, in connection with the performance of services hereunder unless
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authorized in advance in writing by County.
5.
TERMS OF PAYMENT
Payment shall be only for full and complete satisfactory performance of the
services required to be provided herein and as set forth under Section 1, "SCOPE
OF SERVICES." Payment shall be made in the following manner:
Upon completion of the required services as set forth under Section 1, “SCOPE
OF SERVICES,” Consultant shall submit an invoice
within thirty (30) calendar
days of each invoice period,
detailing the services it has provided and the
amount owed under this Agreement. In addition to the invoice submitted by the
Consultant for payment, Consultant must complete and submit to the County, Form
W-9, “A Request for Taxpayer Identification Number and Certification” located at
www.irs.gov/pub/irs-pdf/fw9.pdf
. Both the invoice and W-9 form shall be forwarded
to the County at the County address shown under Section 7, “NOTICES” of this
Agreement,
not later than thirty (30) calendar days after completion and
acceptance by the County of all tasks identified on the invoice.
Upon approval
by County, the fee due hereunder shall be paid to Consultant within thirty (30) days
following receipt of a proper invoice.
In no event shall County be liable for the payment of any invoice not submitted
within thirty (30) calendar days following termination of the Agreement.
6.
NO
PAYMENT
FOR
SERVICE
PROVIDED
FOLLOWING
EXPIRATION/TERMINATION OF AGREEMENT
Consultant shall have no claim against County for payment of any kind whatsoever
for any services provided by Consultant which were provided after the expiration
or termination of this Agreement.
7.
NOTICES
All notices, requests, demands or other communications under this Agreement
shall be in writing. Notice shall be sufficiently given for all purposes as follows:
A.
Personal Delivery. When personally delivered to the recipient, notice is
effective upon delivery.
B.
First Class Mail. When mailed first class to the last address of the recipient
known to the party giving notice, notice is effective three mail delivery days
after deposit in a United States Postal Service office or mailbox.
C.
Certified Mail. When mailed by certified mail, return receipt requested,
notice is effective upon receipt, if delivery is confirmed by a return receipt.
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D.
Overnight Delivery. When delivered by an overnight delivery service,
charges prepaid or charged to the sender’s account, notice is effective on
delivery, if delivery is confirmed by the delivery service.
Any correctly addressed notice that is refused, unclaimed or undeliverable
because of an act or omission of the party to be notified shall be deemed effective
as of the first date that the notice was refused, unclaimed or deemed undeliverable
by the postal authorities, messengers or overnight delivery service.
Information for notice to the parties to this Agreement at the time of endorsement
of this Agreement is a follows:
County of Merced c/o
Consultant
Community and Economic Development Department
KPMG, LLP
2222 M St., 2
nd
Floor
1225 17th Street
Merced, CA 95340
Denver, CO 80202
Any party may change its address giving the other party notice of the change in
any manner permitted by this Agreement.
8.
CONDITION SUBSEQUENT TO NON-APPROPRIATION OF FUNDING
The compensation paid to Consultant pursuant to this Agreement is based on
County’s continued appropriation of funding for the purpose of this Agreement, as
well as the receipt of local, county, state and/or federal funding for this purpose.
The parties acknowledge that the nature of government finance is unpredictable,
and that the rights and obligations set forth in this Agreement are therefore
contingent upon the receipt and/or appropriation of the necessary funds. In the
event that funding is terminated, in whole or in part, for any reason, at any time,
this Agreement and all obligations of the County arising from this Agreement shall
be immediately discharged. County agrees to inform Consultant no later than ten
(10) calendar days after the County determines, in its sole judgment, that funding
will be terminated and the final date for which funding will be available. Under
these circumstances, all billing or other claims for compensation or reimbursement
by Consultant arising out of performance of this Agreement must be submitted to
County prior to the final date for which funding is available. In the alternative,
County and Consultant may agree, in such circumstance, to a suspension or
modification of either party's rights and obligations under this Agreement. Such a
modification, if the parties agree thereto, may permit a restoration of previous
contract terms in the event funding is reinstated.
9.
TERMINATION FOR CONVENIENCE
This Agreement, notwithstanding anything to the contrary herein above or
hereinafter set forth, may be terminated by County at any time without cause or
legal excuse by providing the other party with thirty (30) calendar days written
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notice of such termination.
Upon effective date of termination, County shall have no further liability to
Consultant except for payment for actual services incurred during the performance
hereunder. Such liability is limited to the time specified in said notice and for
services not previously reimbursed by County. Such liability is further limited to
the extent such costs are actual, necessary, reasonable, and verifiable costs and
have been incurred by Consultant prior to, and in connection with, discontinuing
the work hereunder.
10.
TERMINATION FOR CAUSE
After reasonable written notice and opportunity to cure but no longer than thirty
(30) days, the County may terminate this Agreement for and be relieved of making
any payments to Consultant and all duties to Consultant should the Consultant fail
to perform any material duty or obligation of the Agreement. Notice shall be given
as otherwise provided herein. In the event of such termination the County may
proceed with the work in any manner deemed proper by the County. All costs to
the County shall be deducted from any sum otherwise due the Consultant and the
balance, if any, shall be paid to the Consultant upon demand. Such remedy is in
addition to such other remedies as may be available to the County provided by
law.
11.
MODIFICATION OF THE AGREEMENT
Notwithstanding any of the provisions of this Agreement, the parties may agree to
amend this Agreement. No alteration or variation of the terms of this Agreement
shall be valid unless made in writing and signed by the parties hereto. No oral
understanding or agreement not incorporated herein shall be binding on any of the
parties hereto
12.
INSURANCE
A.
Insurance Requirements
Prior to the commencement of work, and as a precondition to this
Agreement, Consultant shall purchase and maintain the following types of
insurance for the stated minimum limits indicated during the term of this
Agreement. Consultant shall provide a certificate of insurance (COI) and
blanket endorsements.
1.
Commercial General Liability (CGL): $1,000,000 per occurrence and
$2,000,000 annual aggregate covering products and completed
operations, bodily injury, personal injury and property damage. The
County and its officers, employees and agents shall be endorsed to
above policies as additional insured, using Insurance Services
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Office, Inc. (ISO) form CG2026 or an alternate form that is at least
as broad as form CG2026, as to any liability arising from the
performance of this Agreement.
2.
Automobile Liability: $1,000,000 per accident for bodily injury and
property damage, or alternatively split limits of $500,000 per person
and $1,000,000 per accident for bodily injury with $250,000
combined single limit.
3.
Workers’ Compensation: Statutory coverage, if and as required
according to the California Labor Code, including Employers' Liability
limits of $1,000,000 per accident.
4.
Professional Liability (Errors and Omissions), including Cyber
Liability: $1,000,000 limit per occurrence and $5,000,000 annual
aggregate limit covering Consultant’s wrongful acts, errors and
omissions. Any aggregate limit for professional liability must be
separate and in addition to any CGL aggregate limit. Claims-made
coverage requires Consultant to maintain a minimum of three (3)
years extended reporting period or tail coverage.
B.
Insurance Conditions
1.
Insurance is to be primary and non-contributory with any insurance
of the County and placed with admitted insurers rated by A.M. Best
Co. as A: VII or higher. Lower rated, or approved but not admitted
insurers, or any other requirement changes (such as limits) are
subject to the prior approval of the County Risk Manager.
2.
Each of the above required policies shall be endorsed to provide the
County with thirty (30) days prior written notice of cancellation. The
County is not liable for the payment of premiums or assessments on
the policy. No cancellation provisions in the insurance policy shall
be construed in derogation of the continuing duty of Consultant to
furnish insurance during the term of this Agreement.
3.
4.
If the Consultant uses subcontractors or others to perform work
under this Agreement, such subcontractor or other persons shall be
required by the Consultant to comply with the same or similar
insurance and conditions of this Section.
13.
INDEMNIFICATION
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Consultant has the contracted duty (hereinafter "duty") to indemnify, defend and
hold harmless, County, its Board of Supervisors, officers, employees, agents and
assigns from and against any and all claims, demands, liability, judgments,
awards, interest, attorney’s fees, costs, experts’ fees and expenses of whatsoever
kind or nature, at any time arising out of or in any way connected with the
performance of this Agreement, whether in tort, contract or otherwise. This duty
shall include, but not be limited to, claims for bodily injury, property damage,
personal injury, and contractual damages or otherwise alleged to be caused to any
person or entity including, but not limited to employees, agents and officers of
Consultant.
Consultant’s liability for indemnity under this Agreement shall apply, regardless of
fault, to any acts or omissions, willful misconduct or negligent conduct of any kind,
on the part of the Consultant, its agents, subcontractors and employees. The duty
shall extend to any allegation or claim of liability except in circumstances found by
a jury or judge to be the sole and legal result of the willful misconduct of County.
This duty shall arise at the first claim or allegation of liability against County.
Consultant will on request and at its expense, defend any action, suit or proceeding
arising hereunder. This clause for indemnification shall be interpreted to the
broadest extent permitted by law.”
14.
INDEPENDENT CONTRACTOR
It is mutually understood and agreed that Consultant is an independent contractor
in the performance of the work duties and obligations devolving upon Consultant
under this Agreement. County shall neither have, nor exercise any control or
direction over the methods by which Consultant shall perform the assigned work
and functions. The contractual interest of County is to assure that the services
covered by this Agreement shall be performed and rendered in a competent,
efficient and satisfactory manner.
It is agreed that no employer-employee relationship is created and Consultant shall
hold County harmless and be solely responsible for withholding, reporting and
payment of any federal, state or local taxes any contributions or premiums imposed
or required by workers' compensation; any unemployment insurance, social
security, income tax, and any other obligations from statutes or codes applying to
Consultant, or its subcontractors and employees, if any.
It is mutually agreed and understood that Consultant, its subcontractors and
employees, if any, shall have no claim under this Agreement or otherwise against
the County for vacation pay, sick leave, retirement or social security benefits,
occupational or non-occupational injury, disability or illness, or loss of life or
income, by whatever cause.
Consultant shall ensure that all its personnel and employees, subcontractors and
their employees, and any other individuals used to perform the contracted services
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are aware and expressly agree that County is not responsible for any benefits,
coverage or payment for their efforts.
The County represents to Consultant that the County has obtained all legal
consents necessary to award this contract to Consultant without competition, and
that award of this Agreement is made in accordance with all applicable law,
regulations, rules, policies, and requirements.
15.
RECORDS, INFORMATION AND REPORTS
Consultant shall maintain time keeping and expense records with respect to all
matters covered under this Agreement. To the extent permitted by law, the County
shall have free access at all proper times or until the expiration of four (4) years
after the furnishing of services to such records, and the right to examine and audit
the same and to make transcripts therefrom, and to inspect all data, documents,
proceedings, and activities pertaining to this Agreement.
To the extent permitted by law, Consultant shall furnish County such periodic
reports as County may request pertaining to the work or services undertaken
pursuant to this Agreement. The costs and obligations incurred or to be incurred
in connection shall be borne by the Consultant.
16.
OWNERSHIP OF DOCUMENTS
To the extent permitted by law, all Deliverables, including but not limited to the
documents and work product related to the Scope of Services and Feasibility
Study, developed by Consultant hereunder are the exclusive property of County
and upon request of County shall be delivered to County upon completion of the
services authorized hereunder. In the event of termination, all finished or
unfinished documents and other materials, if any, at the option of County, and to
the extent permitted by law, shall become the property of the County. The
Consultant shall not have any liability for the County’s use of any incomplete,
unfinished, or draft materials provided in the event of termination. Consultant may
retain copies thereof for its files and internal use. The Client grants to Consultant
a royalty-free, irrevocable, fully paid up, non-exclusive, perpetual license to use,
copy, make derivative works of, distribute, display, and sublicense the
deliverables. Notwithstanding anything herein that may be construed to the
contrary, Client agrees that nothing in this Contract prevents Consultant from using
Residual Knowledge, which includes generalized knowledge, experience, know-
how, or any of the ideas, concepts, methodologies, tools or techniques derived
from or discovered during the provision of the Services performed under the
Contract.
Any publication of information directly derived from work performed or data
obtained in connection with services rendered under this Agreement must be first
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approved by County.
17.
QUALITY OF SERVICE
Consultant shall perform its services with care, skill, and diligence, in accordance
with the applicable professional standards currently recognized by such
profession, and shall be responsible for the professional quality, technical
accuracy, completeness, and coordination of all reports, designs, drawings, plans,
information, specifications, and/or other items and services furnished under this
Agreement.
Consultant shall, without additional compensation, correct or revise any errors or
deficiencies in its reports, drawing, specifications, designs, and/or other related
items or services.
18.
PERSONAL SATISFACTION AS A CONDITION PRECEDENT
The obligations of the County as provided in this Agreement are expressly
conditioned upon Consultant’s compliance with the provisions of the Agreement to
the personal satisfaction of the County. County shall determine compliance in
good faith as a reasonable person would under the circumstances.
19.
ENTIRE AGREEMENT
This Agreement and any additional or supplementary document or documents
incorporated herein by specific reference contain all the terms and conditions
agreed upon by the parties hereto, and no other agreements, oral or otherwise,
regarding the subject matter of this Agreement or any part thereof shall have any
validity or bind any of the parties hereto.
20.
COUNTY NOT OBLIGATED TO THIRD PARTIES
The County shall not be obligated or liable hereunder to any party other than
Consultant.
21.
LAWS, LICENSE, PERMITS AND REGULATIONS
The Consultant and the County agree to comply with all state laws and regulations
that pertain to construction, health and safety, labor, fair employment practice,
equal opportunity, and all other matters applicable to Consultant and County, their
sub-grantees, contractors, or subcontractor, and their work.
Consultant shall possess and maintain all necessary licenses, permits, certificates
and credentials required by the laws of the United States, the State of California,
County of Merced and all other appropriate governmental agencies, including any
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certification and credentials required by County. Failure to maintain the licenses,
permits, certificates, and credentials shall be deemed a breach of this Agreement
and constitutes grounds for the termination of this Agreement by County.
22.
LIMITED EFFECT OF WAIVER OR PAYMENTS
In no event shall the making, by the County, of any payment to Consultant
constitute, or be construed as, a waiver by the County of any breach of covenant,
or any default which may then exist, on the part of Consultant. The making of any
such payment by the County while any such breach or default shall exist, shall not
be construed as acceptance of substandard or careless work or as relieving
Consultant from its full responsibility under this Agreement.
No waiver by either party of any default, breach or condition precedent shall be
valid unless made in writing and signed by the parties hereto. No oral waiver of
any default, breach or condition precedent shall be binding on any of the parties
hereto. Waiver by either party of any default, breach or condition precedent shall
not be construed as a waiver of any other default, breach or condition precedent,
or any other right hereunder.
23.
PERSONNEL
Consultant represents that it has, or will secure at its own expense, all personnel
required in performing the services under this Agreement. All of the services
required hereunder will be performed by Consultant or under its supervision, and
all personnel engaged in the work shall be qualified to perform such services.
24.
APPLICABLE LAW; VENUE
All parties agree that this Agreement
and all documents issued or executed
pursuant to this Agreement as well as the rights and obligations of the parties
hereunder are subject to and governed by the laws of the State of California in all
respects as to interpretation, construction, operation, effect and performance. No
interpretation of any provision of this Agreement shall be binding upon County
unless agreed in writing by County and counsel for County. In the event of a
dispute, the parties agree to participate in non-binding mediation prior to
commencing litigation in a California court of competent jurisdiction.
Notwithstanding any other provision of this Agreement, any dispute concerning
any question of fact or law arising under this Agreement or any litigation or
arbitration arising out of this Agreement, shall be tried in Merced County, unless
the parties agree otherwise or are otherwise required by law.
25.
BREACH OF CONTRACT
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Upon breach of this Agreement by Consultant, County shall have all remedies
available to it both in equity and/or at law.
26.
REMEDY FOR BREACH AND RIGHT TO CURE
Notwithstanding anything else in this Agreement to the contrary, if Consultant fails
to perform any obligation of this Agreement, the County may itself perform, or
cause the performance of, such agreement or obligation. In that event, Consultant
will, on demand, fully reimburse the County for all such expenditures. Alternatively,
the County, at its option, may deduct from any funds owed to Consultant the
amount necessary to cover any expenditures under this provision. This is in
addition to any other remedies available to the County by law or as otherwise
stated in this Agreement.
27.
CONFLICT OF INTEREST
Consultant covenants that to the best of its knowledge it presently has no interest
and shall not acquire any interest, direct or indirect, which would conflict in any
manner or degree with the performance of this Agreement. Consultant shall
ensure that no conflict of interest exists between its officers, employees, or
subcontractors, and the County. Consultant shall ensure that no County officer or
employee, in a position in the County that enables them to influence this
Agreement, will have any direct or indirect financial interest resulting from this
Agreement. Consultant shall ensure that no County employee shall have any
relationship to the Consultant or officer or employee of the Consultant, nor that any
such person will be employed by Consultant in the performance of this Agreement
without immediate divulgence or such fact to the County.
28.
NONDISCRIMINATION IN EMPLOYMENT, SERVICES, BENEFITS AND
FACILITIES
Consultant and any subcontractors shall comply with all applicable federal, state,
and local Anti-discrimination laws, regulations, and ordinances and shall not
unlawfully discriminate, deny family care leave, harass, or allow harassment
against any employee, applicant for employment, employee or agent of County, or
recipient of services contemplated to be provided or provided under this
Agreement, because of race, ancestry, marital status, color, religious creed,
political belief, national origin, ethnic group identification, sex, sexual orientation,
age (over 40), medical condition (including HIV and AIDS), or physical or mental
disability. Consultant shall ensure that the evaluation and treatment of its
employees and applicants for employment, the treatment of County employees
and agents, and recipients of services are free from such discrimination and
harassment.
Consultant represents that it is in compliance with and agrees that it will continue
to comply with the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et
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seq.), the Fair Employment and Housing Act (Government Code §§ 12900 et seq.),
and regulations and guidelines issued pursuant thereto, as applicable.
Consultant agrees to compile data, maintain records and submit reports to permit
effective enforcement of all applicable anti-discrimination laws and this provision.
Consultant shall include this nondiscrimination provision in all subcontracts related
to this Agreement and when applicable give notice of these obligations to labor
organizations with which they have Agreements.
29.
CAPTIONS
The captions of each paragraph in this Agreement are inserted as a matter of
convenience and reference only, and in no way define, limit, or describe the scope
or intent of this Agreement or in any way affect it.
30.
SUBCONTRACTS - ASSIGNMENT
Consultant shall not subcontract or assign this Agreement, or any part thereof, or
interest therein, directly or indirectly, voluntarily or involuntarily, to any person
without obtaining the prior written consent by County. Consultant remains legally
responsible for the performance of all Agreement terms including work performed
by third parties under subcontracts. Any subcontracting will be subject to all
applicable provisions of this Agreement. Consultant shall be held responsible by
County for the performance of any subcontractor whether approved by County or
not.
Consultant hereby assigns to the County all rights, title, and interest in and to all
causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec.
15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of
Part 2 of Division 7 of the Business and Professions Code), arising from the
purchase if goods, materials, or services by the Consultant for sale to the County
pursuant to this Agreement.
31.
SEVERABILITY
If a court of competent jurisdiction holds any provision of this Agreement to be
illegal, unenforceable or invalid, in whole or in part, for any reason, the validity and
enforceability of the remaining provisions, or portion of them, will not be affected.
Compensation due to Consultant from the County may, however, be adjusted in
proportion to the benefit received despite the removal of the effected provision.
32.
DUPLICATE COUNTERPARTS
This Agreement is executed in counterparts, each of which shall be deemed a
duplicate original. The Agreement shall be deemed executed when it has been
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signed by both parties.
33.
COVID-19 REQUIREMENTS
Consultant, at Consultant’s sole expense, shall follow all State and local laws,
rules, regulations, guidelines, and orders related to the COVID-19 pandemic in the
performance of its work under this Agreement. This shall include, but not be limited
to, creating a COVID-19 worksite-specific prevention plan prior to conducting
Consultant’s business/activity. Consultant is encouraged to frequently reference
www.covid19.ca.gov
for information on State requirements for operation of
specified businesses/activities
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.
ADDITIONAL TERMS
1.
Limitation of Liability
. Notwithstanding anything else in this contract to the
contrary, including all attachments, the liability of the Contractor on account of any
actions, damages, claims, liabilities, costs, expenses or losses in any way arising
out of or relating to the services performed under the Agreement shall be limited
to the amount of 3x fees paid or owing to the Contractor under the Agreement. In
no event shall the Contractor be liable for consequential, special, indirect,
incidental, punitive or exemplary damages, costs, expenses, or losses (including,
without limitation, lost profits and opportunity costs). The provisions of this
paragraph shall apply regardless of the form of action, damage, claim, liability,
cost, expense, or loss asserted, whether in contract, statute, rule, regulation or tort
(including but not limited to negligence) or otherwise, and shall survive the
termination or expiration.
2.
CPA Disclosure
. Consultant is owned by professionals who hold CPA licenses as
well as by professionals who are not licensed CPAs. Depending on the services
Consultant is providing, non-CPA holders may provide the services under the
Agreement.
3.
Consultant Resources
. Consultant may engage member firms of the KPMG
network of independent firms and/or affiliated third-party providers (“Consultant
Resources”), which may be in or outside the United States, to assist in the
performance of the services. Consultant remains responsible to State for the
performance of such Services, and adherence to obligations of confidentiality, by
any Consultant Resources to the same extent Consultant is obligated under the
terms of this Agreement. With the understanding that Consultant will remain
responsible to County for the Consultant Resources, County acknowledges and
agrees that the Consultant Resources will not be subject to flow-down terms set
forth in the Agreement.
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4.
Third Party Service Providers
. County acknowledges and agrees that
Consultant’s third-party service providers (“Vendors”), including Consultant’s cloud
service providers, may have access to confidential information from onshore and
offshore locations, and that the Consultant uses Vendors within and outside of the
United States to provide at Consultant’s direction administrative or clerical services
to Consultant. These Vendors may in the performance of such services have
access to County’s confidential information. Consultant represents to County that
with respect to each Vendor Consultant has technical, legal and/or other
safeguards, measures, and controls in place to protect Confidential Information of
County from unauthorized disclosure or use.
5.
Volume Rebates.
Where Consultant is reimbursed for expenses, Consultant will
bill for the amount Consultant paid, without any additional markup. After such
expenses are incurred, Consultant may receive rebates or incentive payments
based on aggregate purchases, which may include expenses reimbursed by
County in addition to other clients. Such rebates are not credited back to County,
but are used to reduce Consultant overhead.
Signature page to follow
16
County of Merced
KPMG LLP
By ______________________
By _________________________
Joshua M. Pedrozo
David Spector
_________________________
_____________________________
Board of Supervisors, Chairman
Managing Director
__________________________
____________________________
Dated
Dated
APPROVED AS TO LEGAL FORM
MERCED COUNTY COUNSEL
By ________________________
Rina M. Gonzales
Chief Deputy County Counsel
___________________________
Dated
4/29/25
