1 AGREEMENT FOR SPECIAL SERVICES
(CONTRACTOR)
MERCED COUNTY
CONTRACT NO. __________
THIS AGREEMENT, is made and entered into by and between the County of Merced, a political subdivision of the State of California, (hereinafter referred to as "County"), and Magellan Advisors, LLC ., located at 999 18
th Street, Suite 3000, Denver, CO 80202
(hereinafter referred to as "Contractor").
WHEREAS, County desires to contract with Contractor for special services which consist of developing a Countywide Broadband Strategic Plan; and
WHEREAS, Contractor is specially trained, experienced, and competent to perform such services in connection with developing a Countywide Broadband Strategic Plan; and
WHEREAS, the parties desire to set forth herein the terms and conditions under which said services shall be furnished.
NOW, THEREFORE , in consideration of the mutual covenants and promises herein contained, the parties hereby agree as follows:
1. SCOPE OF SERVICES
Contractor shall provide the Services as set forth in Exhibit s A and B for the fees set forth in Exhibit A. The Services include the development of a Countywide Broadband Strategic Plan. The Services shall be provided in accordance with the terms and conditions stated in Exhibit A and B and this Agreement, as well as any specifically referenced attachments or modifications, so long as such modifications are in writing and signed by both parties.
The following exhibit is specifically incorporated by reference, attached hereto, and made a part hereof, except when in conflict with this Agreement or modified herein:
Exhibit A – Project Schedule/Billing
Exhibit B – RFP Response
2. TERM
The term of this Agreement shall commence on the 1st day of May , 2022, and continue until the 30
th day of June, 2023, unless sooner terminated in accordance with the sections entitled “TERMINATION FOR CONVENIENCE” , “TERMINATION FOR CAUSE”, or “CONDITION SUBSEQUENT/NON-
APPROPRIATION OF FUNDING”, as set forth elsewhere in this Agreement. 2 3. COMPENSATION
County agrees to pay Contractor a Total Contract Price of Two Hundred Thirty Thousand One Hundred Dollars and No/100 Cents and No/100 Cents ($230,100) for all of Contractors services to be provided herein, as are more specifically set forth under Section 1, "SCOPE OF SERVICES". The Tota l Contract Price shall include all of County’s compensation to Contractor, including reimbursement for all expenses incurred by Contractor in the performance of this Agreement. No other fees or expenses of any kind shall be paid to Contractor 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 Contractor and be mailed or delivered to Contractor at:
Name: John Honker
Address: 450 Alton Road #1402
City/State/Zip: Miami Beach, FL 33139
Contractor may request that County mail the check to Contractor, to such other address as Contractor 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 Contractor 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 Contractor without formal approval of the County’s Board of Super visors or its authorized agent. In no event shall the total services to be performed hereunder exceed $230,100.
County shall not be responsible for any charges or expenses incurred by Contractor, his/her agents, employees or independent Contractors, other than those listed herein, in connection with the performance of services hereunder unless authorized in advance in writing by County.
5. TERMS OF PAYMENT
Payment shall be only for full, complete satisfactory performance of the services required to be pr ovided herein and as set forth under Section 1, "SCOPE OF SERVICES." Payment shall be made in the following manner:
3 Upon completion of the required services as set forth under Section “SCOPE OF SERVICES,” Contractor 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 Contractor for payment, Contractor 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 Contractor 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
Contractor shall have no claim against County for payment of any kind whatsoever for any services provided by Contractor 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.
D. Overnight Delivery. When deli vered 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. 4 Information for notice to the parties to this Agreement at the time of endorsement of this Agreement is as follows:
County of Merced c/o Contractor
Lindsey Johnson John Honker, President and CEO
County Executive Office Magellan Advisors, LLC
2222 M Street 450 Alton Road #1402
Merced, CA 95340 Miami Beach, FL 33139
Any party may change its address by giving the other party notice of the change in any manner permitted by this Agreement.
8. CONDITION SUBSEQUENT/NON-APPROPRIATION OF FUNDING
The compensation paid to C ontractor 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, f or 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 Contractor 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 Contractor 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 C ontractor 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. Also in the alternative, if funding is provided to the C ounty in the form of promises to pay at a later date, whether referred to as “government warrants” , “IOU’s”, or by any other name, the C ounty may, in its sole discretion, provide similar promises to pay to the Contractor, which the Contractor hereby agrees to accept as sufficient payment until cash funding becomes available.
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 w ith thirty (30) calendar days written notice of such termination.
5 Upon effective date of termination, County shall have no further liability to Contractor except for payment for actual services incurred during the performance hereunder. Such liability i s 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 Contractor pr ior to, and in connection with, discontinuing the work hereunder.
10. TERMINATION FOR CAUSE
The County may terminate this Agreement and be relieved of making any payments to Contractor and all duties to Contractor should the Contractor 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 Contractor and the balance, if any, shall be paid to the Contractor 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. Prior to the commencement of work, and as a precondition to this contract, Contractor shall purchase and maintain the following types of insurance for the stated minimum limits indicated during the term of this Agreement.
Contractor shall provide a certificate of insurance and endorsements on each policy as required in this S ection. Each certificate of insurance shall specify if Contractor has an SIR, and if so, Contractor shall be required to provide the entire policy of insurance with which it has a n SIR and/or deductible. All deductibles and self -insured retentions shall be fully disclosed in the Certificates of Insurance and are subject to the express written permission of the County Risk Manager.
1. Commercial General Liability: $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 6 above policy as additional insured, using 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 per accident for property damage.
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. The policy shall be endorsed to waive the insurer's subrogation rights against the County.
4. Professional Liability (Errors and Omissions): $1,000,000 limit per occurrence and $5,000,000 annual aggregate limit covering Contractor’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 Contractor 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: V II 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 Contractor to furnish insurance during the term of this Agreement.
3. If the Contractor maintains broader coverage and/or higher limits than the minimums shown above, the County requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the County.
4. If the Contractor uses subcontractors or others to perform work under this contract, such subcontractors or other persons shall be Named 7 Insured or Additionally Insured to the Contractor’s required insurance coverage, or required by the Contractor to comply with equivalent insurance and conditions of this Section.
13. INDEMNIFICATION
Contractor has the contracted duty (hereinafter "the 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 inclu de, 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 Contractor.
Contractor’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 Contractor, its agents, subcontractor 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.
Contractor 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 Contractor is an independent Contractor in the performance of the work duties and obligations devolving upon Contractor under this Agreement. County shall neither have, nor exercise any control or direction over the methods by which Contractor 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 Contractor 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; any social security income tax; and any other obligations from statutes or codes applying to Contractor, or its subcontractors and employees, if any.
It is mutually agreed and understood that Contractor, its subcontractors and employees, if any, shall have no claim under this Agreement or otherwise against 8 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.
Contractor shall insure that all its personnel and employees, subcontractors and their employees, and any other individuals used to perform the contracted services are aware and expressly agree that County is not responsible for any benefits, coverage or payment for their efforts.
15. RECORDS, INFORMATION AND REPORTS
Contractor shall maintain full and accurate records with respect to all matters covered under this Agreement. To the extent permitted by law, 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, Contractor 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 therewith shall be borne by the Contractor.
16. OWNERSHIP OF DOCUMENTS
To the extent permitted by law, all technical data, evaluations, plans, specifications, reports, documents, or other work products developed by Contractor 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. Contractor may retain copies thereof for its files and internal use.
Any publication of information directly derived from work performed or data obtained in connection with services rendered under this Agreement must be first approved by County.
17. QUALITY OF SERVICE
Contractor 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.
9 Contractor shall, without additional compensation, correct or revise any errors or deficiencies immediately upon discovery in its reports, drawings, specifications, designs, and/or other related items or services.
18. PERSONAL SATISFACTION AS A CONDITION PRECEDENT
The obligations of County as provided in this Agreement are expressly conditioned upon Contractor’s compliance with the provisions of this 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 Ag reement 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 contracts, 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
County shall not be obligated or liable hereunder to any party other than Contractor.
21. LAWS, LICENSES, PERMITS AND REGULATIONS
Contractor and County agree to comply with all State laws and regulations that pertain to construction, health and safety, labor, minimum wage, fair employment practice, equal opportunity, and all other matters applicable to Contractor and County, their sub-grantees, Contractors, or subcontractor, and their work.
Contractor 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 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 AFFECT OF WAIVER OR PAYMENT
In no event shall the making, by County, of any payment to Contractor constitute, or be construed as, a waiver by County of any breach of covenant, or any default which may then exist, on the part of Contractor. The making of any such payment by County while any such breach or default shall exist, shall not be construed as acceptance of substandard or careless work or as relieving Contractor from its full 10 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
Contractor 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 Contractor 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.
Notwithstanding any other provision of this Agreement, any disputes 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
Upon breach of this Agreement by Contractor, 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 Contractor 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, Contractor will, on demand, fully reimburse County for all such expenditures. Alternatively, County, at its option, may deduct from any funds owed to Contractor the amount necessary to cover any expenditures under this provision. This is in addition to any other remedies av ailable to the County by law or as otherwise stated in this Agreement.
11 27. SUCCESSORS IN INTEREST
All the terms, covenants, and conditions of this Agreement shall be binding and in full force and effect upon any successors in interest and assigns of the parties hereto. This paragraph shall not be deemed as a waiver of any of the conditions against assignment set forth herein.
28. CONFLICT OF INTEREST
Contractor covenants that 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. Contractor shall ensure that no conflict of interest exists between its officers, employees, or subcontractors , and the County.
Contractor shall ensure that no County officer or employee in a position that enables them to influence this Agreement will have any direct or indirect financial interest resulting from this Agreement. Contractor shall ensure that no County employee shall have any relationship to the Contractor or officer or employee of the Contractor, nor that any such person will be employed by Contractor in the performance of this Agreement without immediate divul gence of such fact to the County.
29. NONDISCRIMINATION IN EMPLOYMENT, SERVICES, BENEFITS AND
FACILITIES
Contractor 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. Contractor shall ensure that the evaluation and treatment of its employees and applicants for employment, the treatment of County employees and agent s, and recipients of services are free from such discrimination and harassment.
Contractor 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 seq.), the Fair Employment and Housing Act (Government Code §§ 12900 et seq.), and ensure a workplace free of sexual harassment pursuant to Government Code 12950 and regulations and guidelines issued pursuant thereto.
Contractor agrees to compile data, maintain records and submit reports to permit effective enforcement of all applicable antidiscrimination laws and this provision.
12 Contractor 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.
30. 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.
31. SUBCONTRACTS - ASSIGNMENT
Contractor 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. Contractor remains legally responsible for the performance of all contract terms including work performed by third parties under subcontracts. Any subcontracting will be subject to all applicable provisions of this Agreement. Contractor shall be held responsible by County for the performance of any subcontractor whether approved by County or not.
Contractor 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 Contractor for sale to the County pursuant to this Agreement.
32. 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 Contractor from the County may, however, be adjusted in proportion to the benefit received despite the removal of the effected provision.
33. DUPLICATE COUNTERPARTS
This Agreement may be executed in duplicate counterparts, each of which shall be deemed a duplicate original. The Agreement shall be deemed executed when it has been signed by both parties.
34. COVID-19 REQUIREMENTS
Contractor, at Contractor’s sole expense, shall follow all State and local laws, rules, regulations, guidelines, and orders related to the COVID -19 pandemic in the 13 performance of its work under this Agreement. This shall include, but not be limited to, cre ating a COVID -19 worksite- specific prevention plan prior to conducting Contractor’s business/activity. Contractor is encouraged to frequently reference www.covid19.ca.gov for information on State requirements for operation of specified businesses/activities.
Signature page to follow
14 County of Merced Magellan Advisors, LLC.
By ____________________ By _________________________
Lloyd Pareira, Jr. John Honker
________________________ _____________________________ Chair, Board of Supervisors President and CEO
________________________ ____________________________
Dated Dated
APPROVED AS TO LEGAL FORM
MERCED COUNTY COUNSEL
By ________________________
___________________________
Dated
15 EXHIBIT A
PROJECT SCHEDULE/BILLING
= Ongoing Task
= Milestone/Deliverable
Task/ Description Month
5/22 6/22 7/22 8/22 9/22 10/22 11/22 12/22 1/23 2/23
Asset Inventory &
Market Assessment
Outreach &
Community
Engagement
Policy Guidance
Broadband Readiness
Assessment
Action Plan &
Recommendations
Broadband Strategic
Plan Drafting &
Adoption
Project Management
& Ongoing Meetings
Monthly Billing $23,010 $23,010 $23,010 $23,010 $23,010 $23,010 $23,010 $23,010 $23,010 $23,010
EXHIBIT B