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HR Investigative Services to CSR and Marinwood CSDAGREEMENT FOR PROFESSIONAL SERVICES FOR PERSONNEL INVESTIGATIONS This Agreement is made and entered into this day ~ of June 2018, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and MUNICIPAL RESOURCE GROUP, LLC (hereinafter "CONTRACTOR"). RECITALS WHEREAS, the City of San Rafael desires professional investigation services conducted by a licensed attorney; and WHEREAS, the City desires to engage CONTRACTOR to provide these services and CONTRACTOR has offered to provide the required services on the terms and in the manner set forth herein. AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. PROJECT COORDINATION. A. CITY'S Project Manager. The HUMAN RESOURCES DIRECTOR is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. CONTRACTOR'S Investigator. CONTRACTOR shall assign a single investigator to have overall responsibility for the progress and execution of this Agreement for CONTRACTOR. FRED DEL TORCHIO is hereby designated as the CONTRACTOR. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute CONTRACTOR, for any reason, the CONTRACTOR shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF CONTRACTOR. CONTRACTOR shall conduct investigations as a licensed attorney at law in the State of California and will maintain attorney client privilege as part of this professional investigative service that can only be waived by the City. Investigation reports and any related communications shall be marked as privileged. CONTRACTOR shall perform the duties and/or provide services for the investigation as described in CONTRACTOR'S "Scope of Services", attached hereto as Exhibit "1" and incorporated herein. As additional work is requested, the scope of each additional project, with compensation therefor, as agreed by CITY and CONTRACTOR, shall be set forth in writing and attached as additional exhibits hereto. 3. DUTIES OF CITY. CITY shall pay the compensation as provided in Paragraph 4, and perform the duties as ORI INAL described in Exhibit "1" attached and incorporated herein, or in other Exhibits attached from time to time as described in Section 2 above. 4. COMPENSATION. For the full performance of the services by CONTRACTOR described in Exhibit "1" attached hereto, CITY shall pay CONTRACTOR as described in Exhibit "1 ". If and when additional services may be requested by the PROJECT MANAGER pursuant to this Agreement, then such services and the compensation to be paid for them, as mutually agreed by CITY and CONTRACTOR, shall be set forth in detail in one or more additional exhibits attached hereto from time to time, as set forth in Section 2 above, and CITY shall pay compensation as set forth in such exhibits. Provided, however, that in no event shall the total amount of compensation payable to CONTRACTOR for CONTRACTOR's services provided pursuant to this Agreement exceed $20,000, including reimbursement of expenses. Payment will be made monthly upon receipt by PROJECT MANAGER of itemized invoices submitted by CONTRACTOR for CONTRACTOR. 5. TERM OF AGREEMENT. The term of this Agreement shall be for 1 year commencing as of June 18,2018, and ending on June 18,2019. Upon mutual agreement of the parties, and subject to the approval of the City Manager the term of this Agreement may be extended for an additional period of up to one year. 6. TERMINATION. A. Discretionary. Either party may terminate this Agreement without cause upon thirty (30) days written notice mailed or personally delivered to the other party. B. Cause. Either party may terminate this Agreement for cause upon fifteen (15) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice , within such fifteen (15) day time period. C. Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. D. Return of Documents. Upon termination, any and all CITY documents or materials provided to CONTRACTOR and any and all of CONTRACTOR's documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. 7. OWNERSHIP OF DOCUMENTS. The written documents, communications and materials prepared by the CONTRACTOR in connection with the performance of its professional investigation duties under this Agreement, shall 2 be the sole property of CITY, and will maintain attorney client privilege as part of this professional legal service that can only be waived by the City. Investigation reports and any related communications shall be marked as privileged. CITY may use said property for any purpose not contemplated by this Agreement. 8. INSPECTION AND AUDIT. Upon reasonable notice, CONTRACTOR shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONTRACTOR in connection with its performance of its duties under this Agreement. CONTRACTOR shall fully cooperate with CITY or its agent in any such audit or inspection. 9. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10. INSURANCE. A. Scope of Coverage. During the term of this Agreement, CONTRACTOR shall maintain, at no expense to CITY, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 2. An automobile liability (owned, non-owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. 3. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, to cover any claims arising out of the CONTRACTOR's performance of services under this Agreement. Where CONTRACTOR is a professional not required to have a professional license, CITY reserves the right to require CONTRACTOR to provide professional liability insurance pursuant to this section. 4. If it employs any person, CONTRACTOR shall maintain worker's compensation and employer's liability insurance, as required by the State Labor Code and other applicable laws and regulations, and as necessary to protect both CONTRACTOR and CITY against all liability for injuries to CONTRACTOR's officers and employees. CONTRACTOR'S worker's compensation insurance shall be specifically endorsed to waive any right of subrogation against CITY. 3 B. Other Insurance Requirements. The insurance coverage required of the CONTRACTOR In subparagraph A of this section above shall also meet the following requirements: 1. Except for professional liability insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additionally named insureds (for both ongoing and completed operations) under the policies. 2. The additional insured coverage under CONTRACTOR's insurance policies shall be primary with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in CONTRACTOR's policies shall be at least as broad as ISO fonn CG20 01 04 13. 3. Except for professional liability insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4. The insurance policies shall be specifically endorsed to provide that the insurance carrier shall not cancel, tenninate or otherwise modify the tenns and conditions of said insurance policies except upon ten (l0) days written notice to the PROJECT MANAGER. 5. If the insurance is written on a Claims Made Fonn, then, following tennination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before CITY'S own insurance or self-insurance shall be called upon to protect it as a named insured. 8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthennore, the requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. C. Deductibles and SIR's. Any deductibles or self-insured retentions in CONTRACTOR's insurance policies must be declared to and approved by the PROJECT MANAGER and City CONTRACTOR, and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or CITY or other additional insured party. At 4 CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigations, claims administration, CONTRACTOR's fees and defense expenses. D. Proof of Insurance. CONTRACTOR shall provide to the PROJECT MANAGER or CITY'S City CONTRACTOR all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set forth in this Agreement. CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements from CONTRACTOR. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City CONTRACTOR. 11. INDEMNIFICATION. A. CONTRACTOR AND CONTRACTOR shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by CITY, and hold harmless CITY, its officers, agents, employees and volunteers (collectively, the "City Indemnitees"), from and against any claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to CONTRACTOR's fees, expert fees and all other costs and fees of litigation, (collectively "CLAIMS"), arising out of CONTRACTOR'S performance of its obligations or conduct of its operations under this Agreement. The CONTRACTOR's obligations apply regardless of whether or not a liability is caused or contributed to by the active or passive negligence of the City Indemnitees. However, to the extent that liability is caused by the active negligence or willful misconduct of the City Indemnitees, the CONTRACTOR's indemnification obligation shall be reduced in proportion to the City Indemnitees' share of liability for the active negligence or willful misconduct. In addition, the acceptance or approval of the CONTRACTOR's work or work product by the CITY or any of its directors, officers or employees shall not relieve or reduce the CONTRACTOR's indemnification obligations. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CONTRACTOR'S performance of or operations under this Agreement, CONTRACTOR shall provide a defense to the City Indemnitees or at CITY'S option reimburse the City Indemnitees their costs of defense, including reasonable CONTRACTORs' fees, incurred in defense of such claims. B. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement, and shall survive the termination or completion of this Agreement for the full period of time allowed by law. 12. NONDISCRIMINATION. CONTRACTOR shall not discriminate, in any way, against any person on the basis of age, 5 sex, race, color, religion, ancestry, national origin or disability in connection with or related to the perfonnance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LAWS. CONTRACTOR shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the perfonnance of its duties and obligations under this Agreement. CONTRACTOR shall perfonn all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONTRACTOR AND CONTRACTOR shall release, defend, indemnify and hold hannless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 14. NO THIRD PARTY BENEFICIARIES. CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the tenns and conditions of this Agreement, to the other party. 15. NOTICES. All notices and other communications required or pennitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY's Project Manager: TO CONTRACTOR: 16. INDEPENDENT CONTRACTOR. Stacey Peterson City of San Rafael 1400 Fifth Avenue P.O. Box 151560 San Rafael, CA 94915-1560 Mary Egan Municipal Resource Group 675 Hartz Avenue, Suite 300 Danville, CA 94526 For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of 6 CONTRACTOR, CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 17. ENTIRE AGREEMENT --AMENDMENTS. A. The tenns and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter ofthis Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONTRACTOR and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The tenns and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by CONTRACTOR and the CITY. E. If any conflicts arise between the tenns and conditions of this Agreement, and the tenns and conditions of the attached exhibits or the documents expressly incorporated by reference, the tenns and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. CONTRACTOR agrees that CITY may deduct from any payment due to CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 19. WAIVERS.' The waiver by either party of any breach or violation of any tenn, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other tenn, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other tenn, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, perfonnance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any tenn, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 20. C OSTS AND CONTRACTOR'S FEES. The prevailing party in any action brought to enforce the tenns and conditions of this Agreement, or arising out of the perfonnance of this Agreement, may recover its reasonable costs 7 (including claims administration) and CONTRACTOR's fees expended in connection with such action. 21 . CTIY BUSINESS LICENSE / OTHER TAXES. CONTRACTOR shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code CONTRACTOR shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any work perfonned under this Agreement, until CONTRACTOR has provided CITY with a completed Internal Revenue Service Fonn W-9 (Request for Taxpayer Identification Number and Certification). 22. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. 23. COUNTERPARTS AND ELECTRONIC SIGNATURE. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one document. Counterpart signature pages may be delivered by telecopier, email or other means of electronic transmission. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL MUNICIPAL RESOURCE GROUP, LLC Name:, __ --=MAR~~Y'_'E~G~AN~'___ ___ _ ATTEST: Title: ___ ~Partn==er~ ______ _ LINDSAY LARA, City Clerk 8 June 18,2018 Lauren M. Monson, Deputy City Attorney Stacey Peterson, Human Resources Director City of San Rafael 1400 Fifth A venue San Rafael, CA 9490 I Eric Dreikosen, District Manager Thomas Roach, Fire Chief Marinwood Community Services District 775 Miller Creek Road San Rafael, CA 94903-\323 Stephen Raab, County Counsel 350 \ Civic Center Dr. San Rafael, CA 94903 Transmilled via email /0 lauren.monson@cityoftanrafael.org Dear Ms. Monson: Thank you for jointly engaging Municipal Resource Group C"MRG") to provide the City of San Rafael and Marinwood Community Services District C"Marinwood"} (collectively "Clients") with professional investigative services in a confidential matter. MRG has been retained to conduct an investigation regarding a caregiver complaint that on or about May 29,2018, after a joint service visit by Marinwood and San Rafael Fire Departments. a bottle of medication went missing from his home. MRG Investigator Fred Deltorchio J.D. will conduct a contidential investigation to determine the factual basis of the complaint. At the end of the investigation. MRG will provide a written report unless otherwise instructed, to be produced within 30 days of the final interview or earlier. Mr. Deltorchio has provided his scheduling details for interviews. Fred can be reached directly at 707 -853-1024. Limitations on Services. MRG conducts fact finding and issues fact-based reports. Regarding these investigations, Mr. Deltorchio, a member of the California Bar, will provide services to the City as an impartial investigator. The purpose of this investigation is to help both the City and Marinwood's Counsel render legal advice to these agencies. Mr. Deltorchio will use his legal expertise to identify the pertinent facts, synthesize the evidence, and come to a conclusion as to what actually happened. The scope of this representation is limited, in that Mr. Deltorchio will not render a legal determination whether there was any violation oflaw or statue. Furthermore, Mr. Deltorchio will not act as an advocate, provide advice to the City of San Rafael or Marinwood with Exhibit 1 respect to what employment actions, if any, should be taken because ofthe investigator tindings, or represent the City or Marinwood in any legal action or proceeding. Mr. Deltorchio's services are protected by the attomey/client and work product privileges, unless these privileges are waived by the Clients. It is expressly agreed that Clients will look to its regular legal counsel for such services, as well as for advice with respect to other issues which may arise relating to the investigation such as expectations of confidentiality, employee personnel actions such as disciplinary decisions. accessing of electronic and other bank data; document retention; litigation holds; compliance with the federal Fair Credit Reporting Act; and compliance with the California Investigative Consumer Reporting Agencies Act. Independence. As an independent investigator, MRG has the right to determine the means, manner, and findings related to the investigation. The Clients agree to allow MRG full discretion to undertake the investigation and otherwise make findings without influencing or interfering with the outcome. The Clients understand and acknowledge that this Agreement is not dependent on MRG making or fail ing to make a particular determination, finding of fact, or conclusion. Cooperation. To perform our services effectively, we require the full cooperation and support of all representatives from the Clients. You can assist us by keeping us fully informed as to facts and developments relevant to our investigative services. It is essential that we receive accurate and complete information, including written materials when requested, and that involved personnel are available to the extent required. Fees. The Clients agree to pay MRG at the rate of$235.00 per hour for work done in this matter. All fees will be billed on an hourly basis. MRG will bill for reasonable travel time from Mr. Deltorchio's Benicia area location. When appropriate, MRG uses a research assistant at $65.00 per hour to handle work commensurate with experience and expertise. Time charged will include, for example, time spent interviewing witnesses, writing the report of findings, and performing necessary research. The time charged will also include the time MRG spends on telephone calls relating to your matter, including calls with witnesses, potential witnesses, -or counsel representing any of the parties. Costs. MRG may incur minor costs and expenses in performing services under this Agreement. The invoice for this matter will include all costs and expenses incurred, in addition to the hourly fee. The costs and expenses commonly include document production costs and travel expenses including mileage reimbursement at the current IRS rate ($0.545 per mile in 2018). All costs and expenses will be charged at MRG's cost. MRG will invoice for all fees upon delivery ofthe final written report or two weeks after delivery of the draft report, whichever is sooner. MRG will invoice separately, the City of San Rafael Fire Department and Marinwood Fire Department. The City of San Rafael agrees to pay 2/3 of the total investigation costs and Marinwood Fire Department agrees to pay the remaining 1/3 ofthe total investigation cost. Compensation for Post-Investigative Work. This engagement shall be considered concluded after MRG has provided a final invoice for this investigation. After the conclusion of this engagement, should a need arise for MRG to respond to any subpoena, or to otherwise provide deposition or trial testimony about this matter, the Clients shall compensate MRG at its then applicable rates for time expended, including time involved in preparing for such deposition or testimony, or responding to any subpoena. If this letter correctly sets forth the scope of the services to be rendered in this matter, and if the terms of the engagement are satisfactory, please sign and date a copy of this letter in the space provided, and return it to me. I can be reached at 916-261-7547. Sincerely, Mary Egan Managing Partner MRG LLC egan@solutions-mrg.com 916-261-7547 I am authorized to sign this agreement. I have read and understand this engagement letter. I hereby confirm the engagement of MRG to provide investigative services in accordance with its terms. City of San Rafael Date . I ) G ,'z"o 1 K Datel ' 1 I am authorized to sign this agreement. I have read and understand this engagement letter . I hereby confinn the engagement ofMRG to provide investigative services in accordance with its tenns. Marinwood Community Services District ~d -- Eric Dreikosen District Manager _~~1--_ Stephen Raab County Counsel Date CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Human Resources Project Manager: Stacey Peterson Extension: x3069 Contractor Name: Municipal Resource Group (Investigative services to CSR and Marinwood Community Services District) Contractors Contact: Mary Egan Contact's Email: egan@municipalresourcegroup.com (916-261-7547) o FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION DEPARTMENT 1 Project Manager a. Email PINS Introductory Notice to Contractor b . Email contract (in Word) & attachments to City Atty c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement and return to Project Manager b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor 3 Project Manager Forward three (3) originals of final agreement to contractor for their signature 4 Project Manager When necessary, * contractor-signed agreement agendized for Council approval *PSA > $20,000 ; or Purchase> $35,000 ; or Public Works Contract> $125,000 Date of Council approval PRINT CONTINUE ROUTING PROCESS WITH HARD COpy 5 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 6 City Attorney Review and aiprove har1 cOp~gned agreement ~ Zo Ai;' v._~~, u-t fl1 7 City Attorney Review and approve insurance in PINS, and bonds (for Public Works Contracts) 8 City Manager / Mayor Agreement executed by Council authorized official 9 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager COMPLETED REVIEWER DATE Check/Initial ( lIck here to 0 en cr 1 dak 6/20/2018 IZl 6/20/2018 IZl <-CI~ h re to 0 enter cl date 6/20/2018 IZl IZl N/A Or 0 C ck rere tC' ente" a date 6/20/18 Uv\V\ I ~\2/l;tV ~ 'v\ Vu)l ~ l~l~ 6-&6 ~/f( (V lJJtUl'~ ~ -