Kpmg Contract Final

7/22/2019 Kpmg Contract Final

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q ~ 7Vs~ORIGINAL CONTRACTRETURN TO FINANCE DEPT.

KPMG LLP Telephone 513 421 6430312 Walnut Street, Suite 3400Cincinnati, OH 45202 Internet www.us.kpmg.com

December 11 , 2013Scott C. Stiles, ICMA-CMActing City ManagerCity of CincinnatiRoom 104, City Hall801 Plum StreetCincinnati, OH 45202Mr. Stiles:Thank you for considering KPMG LLP KPMG) to provide advisory services related to the City ofCincinnati Client or City) for the Cincinnati Streetcar project (Project). This letter, along withKPMGs modified terms and conditions, describes our proposed scope of work and professional feearrangement as an order for services, which constitute the entire agreement between KPMG and Clientwith respect to the subject matter hereof and supersedes all other oral and written representations,understandings or agreements relating to the subject matter hereof except as specifically modified orincluded by reference in this letter.PROJECT BACKGROUNDThe Cincinnati Streetcar is a modem streetcar system designed to link major employment centers inDowntown and Uptown, connecting through Cincinnatis historic Over the Rhine neighborhood. Thefirst phase of the Project is budgeted at approximately 150 million and is being delivered under atraditional delivery method.In early December, the City suspended the Project including all spending and incurring of additionalcosts by the City for construction, in order to permit the City to obtain an analysis of the total costsassociated with continuation or suspension of the Project.SCOPE OF WORKThe City ha s requested assistance from KPMG in performing the following scope ofwork:1. Evaluate cost associated with terminating the Project2. Evaluate cost associated with completing the current phase of the Project3. Evaluate cost associated with operating and maintaining the current phase of the Project for 30 years4. Evaluate assumptions made by the City in its calculations regarding the cost to complete and the cost

to terminate the current phase of the Project

VMS LLP. a US. limited liability pattnershtp. is the U.S.membm isa ofKPMO tniemationat, a


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Page 2 of 6December 11,2013

APPROACH1) Evaluate cost associated with terminating the Project

a) Prepare summary of contracts, purchase orders, committed cost, and other Project costsb) Collect and record Project invoices paid to datec) Collect and record outstanding Project invoicesd) Collect estimate of unbilled Project work performed to datee) Confirm any cancellation costs, penalties, and termination costs associated with cancelling the

Projectf) For Project work completed to date, review Citys estimate of cost to restore to original state.

This will not include an independent estimate, rather analysis of the process and documentationprepared by City

g) Summarize information in a report including estimate of cost associated with terminating theProject and description of elements included and not included in the estimate2) Evaluate cost associated with completing the current phase of the Project

a) Prepare summary of contracts, purchase orders, committed cost, and other Project costsb) Collect and record Project invoices paid to datec) Collect and record outstanding Project invoicesd) Collect estimate of unbilled Project work performed to datee) Review Project and cost completion estimates prepared by City for each l ine item in the Project

budget. This will not include an independent estimate, rather analysis of the process anddocumentation prepared by City, including review of percentage completion on major workpackages, consideration of any change orders, and overall completeness of documentationprepared by the City related to estimates and forecasts

I) Summarize information in a report including estimate of cost associated with completing thecurrent phase of the Project and description of elements included and not included in the estimate

3) Evaluate cost associated with operating and maintaining the current phase of the Project for 30 yearsa) Prepare summary of contracts or estimates compiled or prepared by the City associated with

operating and maintaining the current phase of the Project for 30 yearsb) Evaluate the Citys assumptions included in the operating and maintenance cost estimatec) Summarize information in a report including estimate of cost associated with operating and

maintaining the current phase of the Project for 30 years and a description of elements includedand not included in the Citys estimate4) Evaluate assumptions made by the City in its calculations regarding the cost to complete and the cost

to terminate the current phase of the Projecta) Obtain original Project budget prepared by the City and related assumptionsb) Obtain estimate of cost to terminate the Project prepared by the City and related assumptionsc) Evaluate and analyze assumptions and other estimates, and summarize in a report


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DELIVERABLES

Page of 6December 11, 2013

KPMG s deliverables under th is engagement will include a written report summarizing the workperformed and any observations, limitations or conclusions reached during our analysis.KPMG SERVICE TEAMI, Geno Armstrong, will participate as Engagement Principal, maintaining overall responsibility for theengagement, including billing and client relations. John I-lerzog will serve as the engagement ManagingDirector and will be actively involved in the performance of the engagement and will use such other stafffor assistance as deemed necessary.PROFESSIONAL FEES AND TIMINGWe will be compensated for fees and expenses incurred on this engagement. Total amount payable by theCity under this contract shall not exceed 250,000. Our fees are based upon the actual hours ofprofessional service rendered extended by the hourly rates of the professional.

495Director/Senior Manager 450Manager 425Senior Associate 350Associate 295Out-of-Pocket Expenses: Our professional fees do not include out-of-pocket expenses incurred for travel,meals, lodging, printing, copying, shipping, and other administrative expenses, which will be billedseparately.We will submit our billings on a monthly basis to be paid in thU within 30 days. We reserve the right tohalt further services until payment is received on past due invoices.OTHER MATTERSThe services, fees, and delivery schedule for these services are based upon the following assumptions,representations, or information supplied by the City.KPMG is not responsible for and will not make management decisions relating to this engagement or anyother aspect of the Citys business. The City shall have responsibility for making a ll decisions withrespect to the management and administration of its construction projects.By accepting this proposal, the City accepts responsibility for the substantive outcomes of thisengagement and, therefore, has a responsibility to be in a posit ion in fact and appearance to make aninformed judgment on the results of this engagement and that the City will comply with the following:

Designate a qualified management level individual to be responsible and accountable foroverseeing the engagement Establish and monitor the performance of the engagement to ensure that it meets managementsobjectives

PrincipallManaging Director


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Page 4 of S December 11,2013

Make any decisions that involve management functions related to the engagement and accept fUllresponsibility for such decisions Evaluate the adequacy of the services performed and any findings that result KPMGs work under this engagement does not include a review or audit of financial statements,tax services, or other services of KPMG not listed in this engagement.

KPMG will provide our services in accordance with the terms and conditions of this letter. Such servicesconstitute an advisory engagement conducted under the American Institute of Certified PublicAccountants AICPA) Standards for Consulting Services, and are not intended to be an audit, review,examination, attestation, or agreed upon procedures engagement as those services are defined in AICPAliterature applicable to such engagements. Our work will be more limited than would be necessary toexpress an opinion on the companys system of internal control, and will not necessarily disclose allcontrol weaknesses. Accordingly, these services shall not result in the issuance of a writtencommunication to third parties by KPMG directly reporting on financial data or internal controls orexpressing a conclusion or any other form of assurance.Although KPMG does not anticipate any questions to arise during this engagement that involve legalinterpretations, we will refer any such questions to the Citys designee(s). The scope of work does notrequire that KPMG make any legal interpretat ions or render any legal advice, and the parties herebyagree that in connection with KPMGs performance of the services under this engagement we shall notdo so . All legal interpretations and rendering of legal advice shall be the Citys responsibility.KPMG LLP in the US provides audit , tax and advisory services to Cincinnati Bell Telephone Company,LLC. KPMG LLP in the US provides audit, tax and advisory services and one or more other memberfirms of KPMG International provide advisory services to Time Warner Cable Midwest LLC . KPMGLLP in the US and one or more other member firms of KPMG International provide audit, tax andadvisory services to Level 3 Communications, Inc. KPMG LLP in the US provides tax services and oneor more other member firms of KPMG International provide audit, tax and advisory services to CAFUSA, Inc. KPMG LLP in the US provides audit and tax services to LTK Consulting Services. KPMGLLP in the US provides tax and advisory services and one or more other member firms of KPMGInternational provide audit, tax and advisory services to Parsons Brinckerhoff. KPMG LLP in the USand one or more other member firms of KPMG International provide tax and advisory services to DukeEnergy Ohio. By accepting this engagement, the City agrees the services proposed under thisengagement letter to do not constitute a conflict of interest based on the relationships outlined herein.As a large professional services organization, KPMG is engaged by new clients every day and cannotensure that an engagement for the involved parties will not be accepted by KPMG. We take noresponsibility for monitoring possible conflicts that could arise during the course of the engagement,although we will inform you promptly should any come to our attention. We reserve the right to resignfrom this engagement at any time if conflicts arise or become known to us that, in our judgment, wouldimpair our ability to perform objectively.The City represents to KPMG that it ha s obtained all legal consents necessary to award this contract toKPMG, and that award of this contract is made in accordance with all applicable law, regulations, rules,policies, and requirements, including but not limited to any applicable laws governing sole or singlesource contracts.


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Page 5 of 6December II, 2013

This engagement is subject to the Standard Terms and Conditions included as an attachment with thefollowing modifications and inclusions:1. Paragraph 4(c) is modified to delete everything after the first sentence, and to insert a new second

sentence: KPMG may, in its sole discretion, mark such advice, recommendations, information,Deliverables, or other work product to reflect the foregoing.2. Paragraph 6 is deleted and replaced with the following: Limitation on Damages Notwithstandinganything else in this Engagement Letter (including its attachments) to the contrary, the liability of theClient Parties and the KPMG Parties to one another, on account of any actions, damages, claims,liabilities, costs, expenses or losses in any way arising out of or relating to the services performedunder the Engagement Letter shall be limited to the amount of fees paid or owing to KPMG under theEngagement Letter. In no event shall any of the Client Parties or any of the KPMG Parties be liablefor consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses, or

losses (including, without limitation, lost profits and opportunity costs). This Paragraph shall applyregardless of the form of action, damage, claim, liability cost, expense, or loss asserted, whether incontract, statute, tort (including but not limited to negligence) or otherwise.3. Paragraph 8 is deleted in its entirety.4. Paragraph 11(b) is modified to (i) insert To the extent permitted by Ohio law, at the beginning of thefirst sentence; and ii) insert or as required by the Ohio Public Records Act? after Paragraph 15below in the second sentence.5. Paragraph 13 is modified to replace New York with Ohio.6. Paragraph 14 is deleted and replaced with the following: The parties agree that any dispute or claimarising out of or relating to the Engagement Letter or the services provided thereunder shall first besubmitted to non-binding mediation. Mediation may take place at a location to be designated by theparties using the Mediation Procedures of the International Institute for Confl ict Prevention andResolution, with the exception of paragraph 2 (Selecting the Mediator). If, after good faith efforts, the

parties are unable to resolve their dispute through mediation within 90 days after the issuance by oneof the parties of a request for mediation, then the parties are free to pursue all other legal and equitableremedies available to them. Nothing herein shall preclude KPMG from filing a t imely formal c laim inaccordance with applicable Ohio law provided, however, that KPMG shall, if permitted, seek a stay ofsaid claim during the pendency of any mediation. Either party may seek to enforce any writtenagreement reached by the parties during mediation in any court of competent jurisdiction.

7. Paragraphs 15(a), (b), and (e) are deleted in their entirety.8. Appendix A is deleted in its entirety.


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Page 6 of 6December 11,2013

Thank you for allowing us to assist you in this matter. f this letter and the attached terms and conditionscorrectly state our arrangement, please sign the enclosed copy and return it to us . f you have anyquestions, please call me at (415) 963-7125.Very truly yours,KPMG LLPBy:

Geno ArmstrongPrincipal

Cc: John P. Curp, City Solicitor, City of Cincinnati

Accepted by: City of Cincinnati

By:Title: 44 t

/2/43DATE

n xate:

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KPMG LLPStandard Terms and Conditions for Advisory and Tax ServicesServices; Client Responsibilities.

(a) References herein to Client shall refer to the addressee of theProposal or Engagement Letter to which these Standard Terms andConditions are attached or incorporated (the Engagement Letter)and references herein to KPMG sha ll re fe r to KPMG LLP, aDelaware registered limited liability partnership and the UnitedStates member firm of the 1(2MG network of independent firms (theKPMG Network). Client, its parent company and their affiliates,and their respective directors, officers, employees, and agents arecollectively referred to herein as the Client Parties. KPMG, theother member firms of the KPMG Network and firms and entitiescontrolled by, or under common control with, one or more suchmember f inns (collectively, the Member Fints), and theiraffiliates, and their respective partners, principals, employees, andagents are collectively referred to herein as the KPMG Parties.(b) It is understood and agreed that KPMGs services may includeadvice and recommendations; hut all decisions in connection withthe implementation of such advice and recommendations shall bethe responsibility of, and made by, Client. 1(2MG will not perform

management functions or make management decisions for Client.(c) f KPMG audits the financial statements of Client or provides anyother attestation services to Client, the rules of the AmericanInstitute of Certified Public Accountants AICPA) require Clientto agree to the following provisions of this Paragraph 1(c). Inconnection with KPMGs provision of services under theEngagement Letter, Client agrees that Client, and not KPMO, shallperform the following functions: (i) make all management decisionsand perform all management functions; (ii) designate an individualwho possesses suitable skill, knowledge and experience, preferablywithin senior management, to oversee such services, and to evaluatethe adequacy and results of such services; iii) accept responsibilityfor the results of such services; and (iv) establish and maintaininternal controls over the processes with which such services are

concemed, including monitoring on-going activities.(d) Subsequent to the completion of this engagement, KPMG will notupdate its advice, recommendations or work product for changes ormodifications to the law and regulations, or to the judicial andadministrative interpretations thereof, or for subsequent events ortransactions, unless Client separately engages KPMG to do so inwriting after such changes or modifications, interpretations, eventsor transactions.2. Tax on Services. All fees, charges and other amounts payable toKPMG under the Engagement Letter do not include any sales, use,excise, value added or other applicable taxes, tariffs or duties,payment of which shall be Clients sole responsibility, excludingany applicable taxes based on KPMGs net income or taxes arising

from the employment or independent contractor relationshipbetween KPMG and its personnel.3. Termination. Either party may terminate the Engagement Letter atany time by giv ing wri tten notice to the other party not less than 30calendar days before the effective date of termination.

4. Ownership and Use of Deliverables.(a) KPMG ha s created, acquired, owns or otherwise has rights in, andmay, in connection with the performance of services under theEngagement Letter, use, provide, modii3, create, acquire orotherwise obtain rights in, (i) concepts, ideas, methodsmethodologies, procedures, processes, know-how, techniquesmodels, templates and software and ii) the general elements osty le , des ign, art work and graphics and content of generaapplicability inc luded in KPMGs Deliverables (as defined belowor work product not specific to Client or the services under theengagement letter (collectively, the KPMG Property). KPMGretains all ownership and use rights in the KPMG Property. Clienshall acquire no rights or interest in the KPMG Property, except asexpressly provided in the next paragraph. KPMG acknowledgesthat KPMG Property shall not include any of Clients confidentialinformation or tangible or intangible property, and KPMG shalhave no ownership rights in such property.(b) Except for KPMG Property, and upon flu and final payment toKPMG under the Engagement Letter, the tangible items specified as

deliverables or work product in the Engagement Letter includingany intel lectual property rights appurtenant there to (theDeliverables) will become the property of Client. Jf any KPMGProperty is contained in any of the Deliverables, KPMG herebygrants Client a royalty-free, paid-up, non-exclusive, perpetualicense to use such KPMG Property in connection with Clients useof the Deliverables. Client acknowledges and agrees that KPMGshall have the right to retain for its files copies of each of theDeliverables, subject to the provisions of Paragraph 11 below.(c) Client acknowledges and agrees that any advice, recommendationsinformation, Deliverables or other work product provided to Clienby KPMG in connection with the services under the EngagemenLetter is intended for Clients sole benefit and KPMG does noauthorize any other party to rely upon such advice

recommendations, information, Deliverables or other work producand any such rel iance shall be at such partys sole risk. Clienagrees that if it makes such advice, recommendations, informationor work product available to any third party other than as expresslypermitted by the Engagement Letter the provisions of Paragraph8(b) shall apply unless Client provides the written notice to the thirdparty in substantially the form of Appendix A hereto (the Notice)which Notice shall be acknowledged in writing by such third partyand returned to Clien t. Upon request, Client shall provide 1(2MGwith a copy of the foregoing Notice and acknowledgement and anynotice and acknowledgement sent to Client by such third party ascontemplated by the Notice. Client may only make a Deliverablebearing the KPMG name or logo available to a third party in itsentirety. Notwithstanding the foregoing, (i) in the event of adisclosure made by Client that is required by law, that is made to aregulatory authority having jurisdiction over Client or that is madepursuant to Paragraph 18(a) below, no acknowledgement of theNotice shall be required and ii) no Notice or acknowledgemenshall be required with respect to disclosures expressly authorized bythe Engagement Letter.

5. Warranties. KPMGs services under the Engagement Letter aresubject to and will be performed in accordance with AICPA andother professional standards applicable to the services provided byKPMG under the Engagement Letter and in accordance with the

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KPMG LLPStandard Terms and Conditions for Advisory and Tax Servicestents thereof. KPMG disclaims all other warranties, either expressor implied.

6. Limitation on Damages. Except for the respective indemnificationobligations of Client and KPMG set forth herein, the liability of theClient Parties and the KPMG Parties to one another, on account ofany actions, damages, claims, liabilities, costs, expenses or losses inany way arising out of or relating to the services performed underthe Engagement Letter shall be limited to the amount of fees paid orowing to KPMG under the Engagement Letter. In no event shallany of the Client Parties or any of the KPMG Parties be liable forconsequential, special, indirect, incidental, punitive or exemplarydamages, costs, expenses, or losses ( including, without l imitat ion,lost profits and opportunity costs). For avoidance of doubt, anydamages awarded against any of the Client Parties or the KPMGParties based on a third party claim suhject to indemnificationhereunder sha ll no t be subject to the disclaimer in the previoussentence. The provisions of this Paragraph shall apply regardless ofthe font of action, damage, claim, liability, cost, expense, or lossasserted, whether in contract, statute, tort (including but not limitedto negligence) or otherwise.7. Infringement.(a) KPMG hereby agrees to indemnify, hold harmless and defend theClient Parties from and against any and all claims, liabilities, losses,expenses (including reasonable attorneys fees), fines, penalties,taxes or damages (collectively Liabilities) asserted by a third partyagainst any of the Client Parties to the extent such Liabilities resultfrom the infringement by the Deliverables (including any KPMGProperty contained therein) of such third partys patents issued as ofthe date of the Engagement Letter, trade secrets, trademarks orcopyrights. The preceding indemnification sha ll not apply to anyinfringement to the extent arising out of (i) use of the Deliverablesother than in accordance with applicable documentation orinstructions suppl ied by KPMG or other than for Clients internal

business purposes; ii) any alteration, modification or revision of theDeliverables not expressly agreed to in writing by KPMG; or iii)the combination of the Deliverables with materials not supplied orapproved by KPMG.(b) In case any of the Deliverables (including any KPMG Propertycontained therein) or any portion thereof is held, or in KPMGsreasonable opinion is likely to be held, to constitute infringement,KPMG may, within a reasonable time, at its option either; (i) securefor Client the right to continue the use of such infringing item; or

ii) replace, at KPMGs sole expense, such item with a substantiallyequivalent non-infringing item or modi~ such item so that itbecomes non-infringing. In the event KPMG is, in its reasonablediscretion, unable to perform either of the options described inclauses (i) or ii) above, Client shall return the allegedly infringingitem to KPMG, and KPMOs sole liability shall be to reibnd toClient the amount paid to KPMG for such item; provided that theforegoing shall not be construed to limit KPMOs indemnificationobligation set forth in Paragraph 7(a) above.

(c) The provisions of this Paragraph 7 state KPMGs entire liability andClients sole and exclusive remedy with respect to any infringementor claim of infringement.

8. Indemnification.(a) KPMG agrees to indemnil~, hold harmless and defend the ClientParties from and against any and all Liabi li ties for physical injuryto, or illness or death of, any person regardless of status, anddamage to or destruction of any tangible property, which any of theClient Parties may sustain or incur , to the extent such Liabilitiesresult from the negligence or wilIthI misconduct of the KPMGParties. Client agrees to indemniW, hold harmless and defend theKPMG Parties from and against any and all Liabi li ties for physicalinjury to, or illness or death of, any person regardless of status, anddamage to or destruction of any tangible property, which any of theKPMG Parties may sustain or incur , to the extent such Liabilitiesresult from the negligence or willful misconduct of the ClienParties.(b) In accordance with Paragraph 4(c), Client agrees to indemni&,defend and hold harmless the KPMG Parties from and against anyand all Liabilities incurred or suffered by or asserted against any othe KPMG Parties in connection with a third party claim to theextent resulting from such partys reliance upon KPMGs advice,

recommendations, information, Deliverables or other work productas a result of Clients disclosure of such advice, recommendationsinformation or work product without adhering to the noticerequirements of Paragraph 4(c) above. The foregoingindemnification obligation shall apply regardless of whether thethird party claim alleges a breach of contract, violation of statute ortort (including without limitation negligence) by KPMG.(c) The party entitled to indemnification (the Indemnified Party) shalpromptly noti the party obligated to provide such indemnification(the Indemnit3ing Party) of any claim for which the IndemnifiedParty seeks indemnification. The Indemnil~ing Party shall have theright to conduct the defense or settlement of any such claim at theIndemnifying Partys sole expense, and the Indemnified Party shalcooperate with the Indemnifying Party. The party not conducting

the defense shall nonetheless have the right to participate in suchdefense at its own expense. The Indemnified Party shall have theright to approve the settlement of any claim that imposes anyliability or obligation other than the payment of money damages forwhich the Indemnifying Party ha s accepted responsibility.9. Cooperation; Use of Information.(a) Client agrees to cooperate w ith KPMG in the performance of theservices under the Engagement Letter and shall provide or arrangeto provide KPMG with t imely access to and use of the personnelfacilities, equipment, data and information necessary for KPMG toperform the services under the Engagement Letter. TheEngagement Letter may set for th addit ional details regardingKPMGs access to and use of personnel, facilities, equipment, data

and information.(b) The Engagement Letter may set for th addit ional obl igat ions oClient in connection with the services under the Engagement Lettenecessary for KPMG to perform its obligations under theEngagement Letter. Client acknowledges that its failure to satisfythese obligations could adversely affect KPMGs ability to providethe services under the Engagement Letter.(c) Client acknowledges and agrees that KPMG will, in performing theservices under the Engagement Letter, base its conclusions on the

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KPMG LLPStandard Terms and Conditions for Advisory and Tax Servicesfacts and assumptions that Client furnishes and that KPMG may usedata, material, and other information furnished by or at the requestor direction of Client without any independent investigation orverification and that KPMG shall be entitled to rely upon theaccuracy and completeness of such data, material and otherinformation. Inaccuracy or incompleteness of such data, materialand other information furnished to KPMG could have a materialadverse effect on KPMGs conclusions.

10. Jndependent Contractor. It is understood and agreed that each ofthe parties hereto is an independent contractor and that neither partyis or shall be considered an agent, distributor or representative of theother. Neither party shall act or represent itself, directly or byimplication, as an agent of the other or in any manner assume orcreate any obligation on behalf of, or in the name of, the other.11 . Confidentiality.(a) Confidential Information means all documents, software, reports,data, records, forms and other materials obtained by one party (theReceiving Party) from the other party (the Disclosing Party) or

at the request or direction of the Disclosing Party in the course ofperforming the services under the Engagement Letter: (i) that havebeen marked as confidential; (ii) whose confidential nature ha s beenmade known by the Disclosing Party to the Receiving Party; or iii)that due to their character and nature, a reasonable person under likecircumstances would treat as confidential. Notwithstanding theforegoing, Confidential Information does not include informationwhich: I) is already known to the Receiving Party at the time ofdisclosure by the Disclosing Party; (2) is or becomes publiclyknown through no wrongful act of the Receiving Party; (3) isindependently developed by the Receiving Party without benefit ofthe Disclosing Partys Confidential Information; (4) relates toinfornution provided by KPMG relating to the tax treatment or taxstructure of any transaction; (5) the Receiving Party determines isrequired to he maintained or disclosed by the Receiving Party undersections 6011, 6111 or 6112 of the Intemal Revenue Code IRC)or the regulations thereunder or under any similar or analogousprovisions of the laws of a state or other jurisdiction; or (6) isreceived by the Receiving Party from a third party withoutrestriction and without a breach of an obligation of confidentiality.

(b) The Receiving Party will deliver to the Disclosing Party or destroyall Confidential Information of the Disclosing Party and all copiesthereof when the Disclosing Party requests the same, except forcopies retained in work paper files or records, anything that may bestored in back up media or other electronic data storage systems,latent data and metadata. Except as otherwise set forth in thisParagraph 11 or Paragraph 15 below, the Receiving Party shall notdisclose to any person, firm or ent ity any Confidential Informationof the Disclosing Party without the Disclosing Partys express, priorwritten permission; provided, however, that notwithstanding theforegoing, the Receiving Party may disclose ConfidentialInformation to the extent that it is required or necessary to bedisclosed pursuant to a statutory or regulatory provision or court oradministrative order, or, subject to appropriate conditions ofconfidentiality, to fulfill professional obligations and standards( including quali ty and peer review) o r to submit and process aninsurance claim.

(c) The KPMG Parties may aggregate Client information within formation f rom other sources in connection with thought

leadership projects, to improve the delivery of services to clientsand to allow clients to evaluate various business transactions andopportunities. The KPMG Parties will only use this informationwithout attribution to Client and under circumstances where Clienwill not be identified as the source of the information.(d) KPMG may also use Client information and information relating tothe services rendered under the Engagement Letter for the purposeof permitting the 1(2MG Parties to access and share knowledge andinformation solely among the KPMG Parties. The KPMG Partiesreceiving this information will be obligated to comply withconfidentiality obligations with respect to such information inaccordance with this Paragraph 11 .(e) Each party shall exercise the same level of care to protect the othersinformation as it exercises to protect its own confidentiainformation but in no event less than reasonable care, except to theextent that applicable law or professional standards impose a higherequirement.0 f the Receiving Party receives a subpoena or other validly issue

administrative or judicial demand requiring it to disclose thDisclosing Partys Confidential Information, the Receiving Partshall, unless prohibited by law, provide prompt written notice to theDisclosing Party of such demand in o rder to permit it to seekprotective order. So long as the Receiving Party gives notice aprovided herein, the Receiving Party shall be entitled to complwith such demand to the extent required by law, subject to anprotective order or the like that may have been entered in the matterIn the event the Receiving Party is requested to testis or produce itdocuments relating to the services under the Engagement Lettepursuant to subpoena or other legal process in judicial oadministrative proceedings to which it is not a party, or inconnection with an informal inquiry or investigation with thconsent of the Disclosing Party, the Disclosing Party shall reimbursthe Receiving Party for its time and expenses, including reasonablattorneys fees, incurred in responding to such requests.

12 . Assignment. Subject to Paragraph 15 below, nei ther par ty maassign, transfer or delegate any of its rights or obligations withouthe prior written consent of the other party, such consent not to bunreasonably withheld.13 . Governing Law; Severability. The Engagement Letter and thesStandard Terms and Conditions shall be governed by and construein accordance with the laws of the State of New York , withouregard to its conflict of laws provisions. In the event that any termor provision of the Engagement Letter or these terms shall be held tbe invalid, void or unenforceable, then the remainder of thEngagement Letter and these terms shall not be affected, and eacsuch term and provision shall be valid and enforceable to the fulles

extent permitted by law.14. Alternative Dispute Resolution.(a) Any dispute or claim arising out of or relating to the EngagemenLetter between the parties or the services provided thereunder shabe submitted first to non-binding mediation (unless either parelects to forego media tion by initiating a written request foarbitration) and if mediation is not successful within 90 days afiethe issuance by one of the parties of a request for mediation then tbinding arbitration in accordance with the Rules for Non

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KPMG LLPStandard Terms and Conditions for Advisory and Tax ServicesAdministered Arbitration of the International Institute for Confl ictPrevention and Resolution (the IICPR). Any issue concerning theextent to which any dispute is subject to arbitration, or any disputeconcerning the applicability, interpretation, or enforceability ofthese dispute resolution procedures, including any contention thatall or part of these procedures is invalid or unenforceable, shall begoverned by the Federal Arbi trat ion Act and resolved by thearbitrators. By operation of this provision, the parties agree toforego litigation over such disputes in any court of competentjurisdiction.

(b) Mediation, if selected, may take place at a location to be designatedby the parties using the Mediation Procedures of the IICPR, with theexception of paragraph 2 (Selecting the Mediator).(c) Arbitration shall take place in New York, New York. Thearbitration panel shall have no power to award non-monetary orequitable relief of any sort except as provided in IICPR Rule 13(Interim Measures of Protection). Damages that are inconsistentwith any applicable agreement between the parties, that are punitivein nature, or that are not measured by the prevailing partys actual

damages shall be unavailable in arbitration or any other forum. Inno event, even if any other portion of these provisions is held to beinvalid or unenforceable, shall the arbitration panel have power tomake an award or impose a remedy that cou ld not be made orimposed by a court deciding the matter in the same jurisdiction.(d) Either party may seek to enforce any written agreement reached bythe parties during mediation, or to confirm and enforce any finalaward entered in arbitration, in any court of competent jurisdiction.(e) Notwithstanding the agreement to such procedures, either party mayseek equitable relief to enforce its rights in any court of competentjurisdiction.15 Use ofMember Firms and Third Party Service Providers.(a) Client acknowledges and agrees that the services under theEngagement Letter, including any applicable tax advice, may beperformed by a Member Firm located outside of the United States.Client understands that each Member Firm is a separate, distinct andindependent legal entity and is not a partner, principal, agent oraffiliate of KPMG and KPMC1 is not a partner, principal, agent oraffiliate of any other Member Firm.(b) Client further acknowledges that in connection with theperformance of services under the Engagement Letter, KPMG andMember Firms, in their discretion or at Clients direction, mayutilize the services of third party service providers within andwithout the United States to complete the services under theEngagement Letter.(c) KPMG uses third party service providers within and without theUnited States to provide at KPMGs direction administrative andclerical services to KPMG. These third party service providers mayin the performance of such services have limited access toinformation, including but not limited to Confidential Information,received by KPMG from or at the request or direction of Client.KPMG represents to Client that each such third party serviceprovider ha s agreed to conditions of confidentiality with respect toClients information to the same or similar extent as KPMG ha sagreed to pursuant to Paragraph 11 above. KPMG has full

responsibility to cause these third party service providers to complywith such conditions of confidentiality and KPMG shall beresponsible for any consequences of their failure to comply.(d) Accordingly, Client consents to KPMGs disclosure to a MemberFirm or third party service provider and the use by such MemberFirm and third party service provider of data and information,including but not limited to Confidential Information, received fromor at the request or direction of Client for the purposes set forth inParagraph 11 and this Paragraph 15 .(e) Any services performed by a Member Firm or third party serviceprovider shall be performed in accordance with the terms of theEngagement Letter and these Standard Terms and Conditions,including Paragraph 11 (Confidentiality), but KPMG shall remainresponsible to Client for the performance of such services. Clientagrees that any claim relating to the services under the EngagementLetter may only be made against KPMG and not any other MemberFirm or third party service provider referred to above.16 . Miscellaneous.(a) Sarbanes-Oxley. Except as otherwise set forth in the EngagementLetter, in accepting this engagement, Client acknowledges thatcompletion of this engagement or acceptance of Deliverablesresulting from this engagement will not const itute a basis forClients assessment or evaluation of internal control over financialreporting and disclosure controls and procedures, or its compliancewith its principal officer certification requirements under Section302 of the Sarbanes-Oxley Act of 2002 (the Act). The servicesunder the Engagement Letter shall not be construed to supportClients responsibilities under Section 404 of the Act requir ing eachannual report filed under Section 13(a) or 15(d) of the SecuritiesExchange Act of 1934 to contain an internal control report frommanagement.(b) Electronic Communications. KPMG and Client maycommunicate with one another by e lect ronic mail or otherwisetransmit documents in electronic form during the course of thisengagement. Each party accepts the inherent risks of these forms ocommunication (including the security risks of interception of orunauthorized access to such communications, the risks of corruptionof such communications and the risks of viruses or other harmfudevices). Client agrees that the final hardcopy version of adocument, including a Deliverable, or other written communicationthat KPMG transmits to Client shall supersede any previousversions transmitted electronically by KPMO to Client unless nosuch hard copy is transmitted.(c) California Accountancy Act. For engagements where serviceswill be provided by KPMG through offices located in Cali fornia,

Client acknowledges that certain of KPMGs personnel who may beconsidered owners under the California Accountancy Act andimplementing regulations (Califomia Business and ProfessionsCode section 5079(a); 16 Cal. Code Regs. sections 51 and 51.1) andwho may provide services in connection with this engagement, maynot be licensed as certified public accountants under the laws of anyof the various states.(d) Volume Rebates. Where KPMG is reimbursed for expenses, it isKPMGs policy to bill clients the amount incurred at the time thegood or service is purchased. If KPMG subsequently receives a

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KPMG LLPStandard Terms and Conditions for Advisory and Tax Servicesvolume rebate or other incentive payment from a vendor relating tosuch expenses, KPMG does not credit such payment to Client.Instead, KPMG applies such payments to reduce its overhead costs,which costs are taken into account in determining KPMGs standardbilling rates and certain transaction charges that may be charged toclients.

(e) Use of Names and Logos. Except as permitted by law or the termsof the Engagement Letter, neither party shall acquire hereunder anyright to use the name or logo of the other par ty or any part thereof.Any such use shall require the express written consent of the ownerparty.1 ) Privileged Communications. Information relating to adviceKPMO provides to Client, including communications betweenKPMG and Client and material KPMG creates in the course ofproviding advice, may be privileged and protected from disclosureto the IRS or other governmental authority in certain circumstances.As KPMG is not able to assert the privilege on Clients behalf withrespect to any communications for which privilege has been waived,Client agrees to promptly noti1~ KPMG of any such waivers,

whether resulting from communications with KPMG or third partiesin the same or a related matter. Client also understands thatprivilege may not be available for communications with an auditclient and that KPMG personnel providing audit and non-auditservices will discuss matters that may affect the audit to the extentrequired by applicable professional standards. Client agrees thatKPMG will not assert on Clients behalf any claim of privilegeunless Client specifically instructs KPMG in writing to do so afterdiscussing the specific request and the grounds on which suchprivilege claim would be made. Notwithstanding the foregoing,Client acknowledges that in no event will KPMG assert any claimof privilege that KPMG concludes, after exercising reasonablejudgment, is not valid.(g) Active Spreadsheets and Electronic Files. KPMG may use

models, electronic files and spreadsheets with embedded macroscreated by KPMG to assist KPMG in providing the services underthe Engagement Letter. f Client requests a working copy of anysuch model, electronic file or spreadsheet, KPMG may, at itsdiscretion, make such i tem available to Client for its internal useonly and such i tem shall be considered a Deliverable subject toParagraph 4 above; provided that Client is responsible for obtainingthe right to use any third party products necessary to use or operatesuch item.(h) Non-Solicitation. During the term of the Engagement Letter andfor one year thereafter, neither party shall solicit for hire as anemployee, consultant or otherwise any of the other partys personnelwho have had direct involvement with the services under theEngagement Letter, without such other partys express written

consent. This prohibition shall not apply to any offers ofemployment which result from a general solic ita tion foremployment, including without l imitat ion, through the Internet,newspapers, magazines and radio.17 . Entire Agreement. The Engagement Letter and these StandardTerms and Conditions, including the Exhibits and Appendiceshereto and thereto, constitute the entire agreement between KPMGand Client with respect to the services under the Engagement Letterand supersede all other oral and written representations,understandings or agreements relating thereto.

18 . Additional Terms for Engagements Involving Tax Services.(a) Notwithstanding anything to the contrary set forth herein, noprovision in the Engagement Let te r o r these Standard Terms andConditions is or is intended to be construed as a condition oconfidentiality within the meaning of IRC sections 6011, 61116112 or the regulations thereunder, or under any similar oanalogous provisions of the laws of a state or other jurisdiction. Inparticular, Client (and each employee, representative, or other agenof Client) may disclose to any and all persons, without limitation oany kind, the tax treatment and tax structure of any transactionwithin the scope of this engagement and all materials of any kind(including opinions and other tax analyses) that are provided toClient relating to such tax treatment and tax structure. Client alsoagrees to use commercially reasonable efforts to inform KPMG oany conditions of confidentiality imposed by third party advisorswith respect to any transaction on which KPMO advice is requestedSuch notification must occur prior to KPMG providing any advicewith respect to the transaction.(b) Treasury regu la tions under IRC section 6011 require taxpayers todisclose to the IRS their participation in reportable transactions andIRC section 6707A imposes strict penalties for noncomplianceClient agrees to use commercially reasonable efforts to informKPMG if Client is required to disclose any transaction covered bythe Engagement Letter as a reportable transaction to the IRS or toany state or other jurisdiction adopting similar or analogousprovisions. JRC section 6111 requires a material advisor withrespect to a reportable transaction to disclose information on thetransaction to the IRS by a prescribed date, and IRC section 6112requires the material advisor to maintain, and make available to theIRS upon request, a list of persons and other information withrespect to the transaction. KPMG will use commercially reasonableefforts to inform Client if KPMG provides Clients identit~ininformation to the IRS under IRC section 6111 or 6112, or to an

state or other jurisdiction adopting similar or analogous provisions.(c) Unless expressly provided for, KPMGs services do not includerepresenting Client in the event of a challenge by the IRS or othetax or revenue authorities.(d) In rendering tax advice, KPMG may consider, for example, theapplicable provisions of the Internal Revenue Code of 1986, and thEmployee Ret irement Income Security Act of 1974, each aamended, and the relevant state, local and foreign statutes, theregulations thereunder, income tax treaties, and judicial andadministrative interpretations, thereof. These authorities are subjec

to change, retroactively or prospectively, and any such changecould affect the validity of KPMGs advice.

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APPENDIX AfFORM OF NOTICE AND ACKNOWLEDGEMENT]

[Name of Third Party]Address

The advice, recommendations and information in the document included with this notice wereprepared for the sole benefit of [Name of Client], based on the specific facts and circumstancesof [Name of Client], and its use is limited to the scope of KPMGs engagement for [Name ofClient]. It has been provided to you for informational purposes only and you are not authorizedby KPMG to rely upon it and any such reliance by you or anyone else shall be at your or theirown risk. You acknowledge and agree that KPMG accepts no responsibility or liability inrespect of the advice, recommendations or other information in such document to any person ororganization other than [Name of Client]. You shall have no right to disclose the advice,recommendations or other information in such document to anyone else without including a copyof this notice and, unless disclosure is required by law or to fulfill a professional obligationrequired under applicable professional standards, obtaining a signed acknowledgement of thisnotice from the party to whom disclosure is made and you provide a copy thereof to [Name ofClient]. You acknowledge and agree that you will be responsible for any damages suffered byKPMG as a result of your failure to comply with the terms of this notice.Please acknowledge your acceptance of the foregoing by signing and returning to us a copy ofthis letter.*Very truly yours,[Name of Client]By: _____________Name:Title:Accepted and Agreed to on this day of 20_ by:*[Name of Third PartyBy: _____________Name:Title:*Remove in the event of a disclosure made by Client that is required by law, that is made to aregulatory authority having jurisdiction over Client or that is made pursuant to Paragraph 18(a)of the Standard Terms and Conditions in which case an acknowledgement is not required by theterms of Paragraph 4(c).

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Kpmg Contract Final

Documents

Transcript of Kpmg Contract Final