HomeMy WebLinkAboutAgreement A-23-388 Workplace Investigations Master Agreement.pdf Agreement No. 23-388
1 MASTER SERVICE AGREEMENT
2 (Workplace Investigations — County of Fresno)
3 This Master Service Agreement ("Agreement") is dated August 8, 2023 and is
4 between each contractor listed in Exhibit A to this Agreement, "Third Party Investigations Firm
5 List" ("Contractor"), and the County of Fresno, a political subdivision of the State of California
6 ("County").
7 Recitals
8 A. The County represents that it desires to provide fair and equitable conditions of
9 employment, in compliance with the law, to its employees, and to that end, the County may
10 have the need, from time to time, to investigate matters of employee conduct including, but not
11 limited to, allegations of sexual misconduct, harassment, discrimination, retaliation, workplace
12 violence, and violations of its personnel rules, policies, and management directives; and
13 B. In order to carry out the foregoing investigations, the County requires the services of
14 impartial outside third party legal and investigative firms, on a time-sensitive basis, to maintain
15 fairness and impartiality in fulfilling these duties, and to manage the reported potential
16 allegations.
17 C. The County represents that it requires these services on a time-sensitive basis, and that
18 a suspension of competition for these services is merited for authorization of those firms listed in
19 Exhibit A to this Agreement.
20 D. On January 25, 2021, the County entered into Master Procurement Agreement, P-21-
21 020 ("Agreement P-21-020"), for workplace investigations, with various firms that includes
22 Kramer Workplace Investigations, Leist &Associates, and Sloan Sakai Yeung and Wong, LLP.
23 E. On April 5, 2022, the County further added Van Dermyden Makus as a fifth and final
24 vendor approved to Agreement P-21-020.
25 F. The above-named firms constitute all of the Contractors listed on Exhibit A to this
26 Agreement.
27 The parties therefore agree as follows:
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Master Service Agreement
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1 Article 1
2 Contractor's Services
3 1.1 Scope of Services. Each Contractor, as it may be requested from time to time by
4 the County's Representative under Article 2 hereof, "County's Responsibilities," shall timely
5 perform the services pursuant to Exhibit B to this Agreement, "Scope of Services."
6 1.2 Lead Representative; Key Personnel. Each Contractor has identified its lead
7 representative in Exhibit A to this Agreement, and its key personnel in Exhibit C to this
8 Agreement. Each Contractor acknowledges and agrees that its identified lead representative is
9 a material inducement for County to enter into this Agreement with the Contractor, and without
10 such lead representative County would not have entered into this Agreement with the
11 Contractor. The Contractor's lead representative shall be the Contractor's primary point of
12 Contact for purposes of this Agreement, provided however, the Contactor's lead representative
13 may designate any of Contractor's key personnel who are named in Exhibit C as the primary
14 point of contact for assignment of investigation matters under this Agreement. Each Contractor
15 may not replace such lead representative or any of such key personnel who are named in
16 Exhibit C without the prior, express, written approval of the County's Director of Human
17 Resources or his or her designee ("County's Director"). In case of death, illness, or other
18 incapacity of any of the foregoing lead representative or named key personnel, the Contractor
19 shall give prompt written notice thereof to the County and provide a replacement of at least
20 equal professional ability and experience as the lead representative or named key personnel
21 replaced.
22 1.3 Use of Interns. If any Contractor uses interns, such interns shall be under the direct
23 supervision of one or more of Contractor's key personnel in Exhibit C to this Agreement.
24 1.4 Representation. Each Contractor represents that it is qualified, ready, willing, and
25 able, including possessing sufficient professional and administrative resources, to perform all of
26 the services provided in this Agreement. Each Contractor represents that it is capable of timely
27 performing services as it may be requested by County under Article 2 hereof, "County's
28 Responsibilities," on a time-sensitive basis.
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1 1.5 Compliance with Laws and Licenses. Each Contractor shall, at its own cost,
2 comply with all applicable federal, state, and local laws and regulations in the performance of its
3 obligations under this Agreement, including but not limited to workers compensation, labor, and
4 confidentiality laws and regulations, and shall maintain in good standing any professional
5 licenses that the Contractor is required to possess in order to be qualified to perform its services
6 under this Agreement.
7 Article 2
8 County's Responsibilities
9 2.1 The County may, from time to time, and in its sole discretion, refer certain workplace
10 investigations to the Contractor whom County's Director, in consultation with County Counsel, or
11 his or her designee ("County's Representative"), determines to be most appropriate for such
12 investigations and selects from Exhibit A to this Agreement. Based on such selection by
13 County's Director, the County's Representative is authorized by the County, as the County's
14 sole point of contact, to refer such workplace investigations to the Contractor, to communicate
15 on behalf of the County with the Contractor, and to provide any County direction to Contractor,
16 subject to section 2.4 hereof, and for them to exchange any communication, record, document,
17 correspondence, report, including findings, or information concerning all such matters
18 (collectively, "Communications"), it being understood between each selected Contractor and the
19 County that they intend for the Contractor's services, including any Communications exchanged
20 between them, to be covered by the attorney-client privilege of confidential communications
21 (California Evidence Code secs 952 and 954) and the attorney work product doctrine of
22 confidentiality (California Code of Civil Procedure, secs. 2018.010 through 2018.080), provided
23 however, the County's Representative may include County personnel in such Communications
24 as the County's Representative deems reasonably necessary for the accomplishment of the
25 purpose of such Communications (California Evidence Code sec 952). No Contractor shall
26 disclose or receive any Communications in relation to any workplace investigation with or from
27 any other Contractor unless and until the County's Representative so directs.
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1 2.2 The County's Board of Supervisors reserves the right, in its sole discretion, to waive
2 the attorney-client privilege of confidential communications (California Evidence Code secs 952
3 and 954) with respect to any Communications.
4 2.3 The County is not under any obligation to refer any workplace investigations to any
5 Contractor, or to all of the Contractors, under this Agreement. The County's Representative's
6 referral of any workplace investigations to any Contractor under this Agreement shall not
7 obligate the County to refer any other workplace investigations to that Contractor or to any other
8 Contractors.
9 2.4 The County's Representative's referral to each selected Contractor shall, through
10 such Communications, communicate the County's desired investigative scope and deliverables,
11 typically in the form of a report that includes findings, and desired time constraints for the
12 Contractor to perform and complete such investigations. The County's Representative's referral
13 to each selected Contractor may place additional conditions upon the Contractor's performance
14 of its services in addition to the provisions of Exhibit B to this Agreement, "Scope of Services."
15 The selected Contractor shall conduct its investigation, and prepare its report, including findings,
16 independent of the County, including, but not limited to, the Office of County Counsel, and in no
17 event shall Office of County Counsel participate in the selected Contractor's provision of its
18 services under this Agreement.
19 2.5 All of the County's Representative's Communications to and Communications
20 received by the Contractor shall be covered by the attorney-client privilege of confidential
21 communications (California Evidence Code secs 952 and 954) regardless of whether the
22 Contractor is or is not a law firm or an attorney, it being understood that the Contactor is
23 performing its services under the Agreement at the request of the County's Representative.
24 2.6 The County shall be responsible for notifying its employees of any necessary
25 participation in interviews and providing the selected Contractor with any relevant documents
26 which may be within the County's control.
27
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1 Article 3
2 Compensation, Invoices, and Payments
3 3.1 Payments. The County agrees to pay, and each Contractor agrees to receive,
4 compensation for the performance of its services under this Agreement as described in Exhibit
5 C to this Agreement, "Compensation." Unless otherwise specified with respect to a Contractor
6 in Exhibit C to this Agreement, the Contractor's rates in Exhibit C to this Agreement shall apply
7 to the Term, to the first one-year optional period, in the event this Agreement is extended under
8 section 4.2 hereof, "Extension," and to the second one-year optional period, in the event this
9 Agreement is further extended under section 4.2 hereof, "Extension."
10 3.2 Compensation; Maximum Compensation. The compensation payable, in the
11 aggregate to all of the Contractors, listed in Exhibit A, under this Agreement shall not exceed a
12 cumulative $350,000 for the Term (as defined in Section 4.1 hereof, "Term"). In the event this
13 Agreement is extended under section 4.2 hereof, "Extension," for the first one-year optional
14 period, the compensation payable, in the aggregate to all of the Contractors, listed in Exhibit A,
15 under this Agreement shall not to exceed a cumulative $425,000 for the Term, as so extended.
16 In the event this Agreement is extended under section 4.2 hereof, "Extension," for the second
17 one-year optional period, the compensation payable, in the aggregate to all of the Contractors,
18 listed in Exhibit A, under this Agreement shall not to exceed a cumulative $500,000 for the
19 Term, as so further extended.
20 3.3 The maximum compensation payable, in the aggregate to all of the Contractors,
21 listed in Exhibit A, under this Agreement shall not to exceed a cumulative $500,000 for the Term
22 and two optional renewal periods provided under section 4.2 hereof, "Extension." Each
23 Contractor acknowledges that, as it may be requested by County under Article 2 hereof,
24 "County's Responsibilities," to perform services, the Contractor shall be paid solely according to
25 its own rates listed in Exhibit C for its own services, and not according to any rates from among
26 the other Contractors listed in Exhibit C, regardless of whether the other Contractors are
27 identified in Exhibit A to this Agreement or propose similar rates as the Contractor under Exhibit
28 C to this Agreement. Contractors are not guaranteed any minimum amount of compensation
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1 under this Agreement. Each Contractor acknowledges that the County is a local government
2 entity and does so with notice that the County's powers are limited by the California Constitution
3 and by State law, and with notice that the Contractor may receive compensation under this
4 Agreement only for services performed according to the terms of this Agreement and while this
5 Agreement is in effect, and subject to the maximum amount payable under this section. Each
6 Contractor further acknowledges that County employees have no authority to pay the Contractor
7 except as expressly provided in this Agreement.
8 3.4 Invoices. Each Contractor that performs services under this Agreement shall submit
9 itemized monthly invoices to HRadministration(abfresnocountyca.go with the Agreement
10 number clearly labeled in the subject line and at the top of the body of the email. The Contractor
11 shall submit each invoice within sixty (60) days after the month in which the Contractor performs
12 services and in any case within sixty (60) days after the end of the term or termination of this
13 Agreement.
14 3.5 Payment. The County shall pay each correctly completed and timely submitted
15 invoice within forty-five (45) days after receipt. The County shall remit any payment to the
16 Contractor's address specified in the invoice.
17 3.6 Incidental Expenses. Each Contractor is solely responsible for all of its costs and
18 expenses that are not specified as payable by the County under this Agreement.
19 Article 4
20 Term of Agreement
21 4.1 Term. This Agreement is effective on August 8, 2023, and terminates on June 30,
22 2026 ("Term"), except as provided in section 4.2 hereof, "Extension," or Article 6 hereof,
23 "Termination and Suspension."
24 4.2 Extension. The Term of this Agreement may be extended, as to each Contractor, for
25 no more than two, one-year periods only upon written approval of the Contractor and County at
26 least thirty (30) days before the first day of the next one-year extension period. The County's
27 Director is authorized to sign the written approval on behalf of the County based on the
28 Contractor's satisfactory performance. The extension of this Agreement by the County is not a
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1 waiver or compromise of any default or breach of this Agreement by the Contractor existing at
2 the time of the extension whether or not known to the County.
3 Article 5
4 Notices
5 5.1 Contact Information. The persons and their addresses having authority to give and
6 receive notices provided for or permitted under this Agreement include the following:
7 For the County:
Human Resources Manager— Labor Relations
8 County of Fresno
2220 Tulare Street
9 Fresno, CA, 93721
HRLaborRelations@Fresnocountyca.gov
10
For each Contractor:
11 See each Contractor's contact in Exhibit A to this Agreement.
12 5.2 Change of Contact Information. Each Contractor or the County may change the
13 information in section 5.1 hereof, "Contact Information," by giving notice as provided in section
14 5.3 hereof, "Method of Delivery."
15 5.3 Method of Delivery. Each notice between the County and each Contractor provided
16 for or permitted under this Agreement must be in writing, state that it is a notice provided under
17 this Agreement, and be delivered either by personal service, by first-class United States mail, by
18 an overnight commercial courier service, by telephonic facsimile transmission, or by Portable
19 Document Format (PDF) document attached to an email.
20 (A) A notice delivered by personal service is effective upon service to the recipient.
21 (B) A notice delivered by first-class United States mail is effective three (3) County
22 business days after deposit in the United States mail, postage prepaid, addressed to the
23 recipient.
24 (C)A notice delivered by an overnight commercial courier service is effective one (1)
25 County business day after deposit with the overnight commercial courier service,
26 delivery fees prepaid, with delivery instructions given for next day delivery, addressed to
27 the recipient.
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1 (D)A notice delivered by telephonic facsimile transmission or by PDF document
2 attached to an email is effective when transmission to the recipient is completed (but, if
3 such transmission is completed outside of County business hours, then such delivery is
4 deemed to be effective at the next beginning of a County business day), provided that
5 the sender maintains a machine record of the completed transmission.
6 5.4 Claims Presentation. For all claims arising from or related to this Agreement,
7 nothing in this Agreement establishes, waives, or modifies any claims presentation
8 requirements or procedures provided by law, including the Government Claims Act (Division 3.6
9 of Title 1 of the Government Code, beginning with section 810).
10 Article 6
11 Termination and Suspension
12 6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
13 contingent on the approval of funds by the appropriating government agency. If sufficient funds
14 are not allocated, then the County, upon at least thirty (30) days' advance written notice to the
15 Contractor(s), may:
16 (A) Modify the services provided by each Contractor, or all Contractors, under this
17 Agreement; or
18 (B) Terminate this Agreement.
19 6.2 Termination for Breach.
20 (A) Upon determining that a breach (as defined in paragraph (C) below) has
21 occurred, the County may give written notice of the breach to the applicable Contractor.
22 The written notice may suspend the applicable Contractor's performance under this
23 Agreement, and must provide at least thirty (30) days for the Contractor to cure the
24 breach.
25 (B) If the applicable Contractor fails to cure the breach to the County's satisfaction
26 within the time stated in the written notice, the County may terminate this Agreement, as
27 to such Contractor, immediately without affecting the other Contractors under this
28 Agreement.
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1 (C) For purposes of this section, a breach occurs when, in the determination of the
2 County, the applicable Contractor has:
3 (1) Obtained or used funds illegally or improperly;
4 (2) Failed to comply with any part of this Agreement;
5 (3) Submitted a substantially incorrect or incomplete report, including findings, to
6 the County; or
7 (4) Improperly performed any of its obligations under this Agreement.
8 6.3 Termination without Cause. In circumstances other than those set forth above, the
9 County may terminate this Agreement as to any Contractor(s), or as to all Contractors, by giving
10 at least thirty (30) days advance written notice to the applicable Contractor(s)without affecting
11 the other Contractors under this Agreement, or to all Contractors.
12 6.4 No Penalty or Further Obligation. Any termination of this Agreement by the County
13 as to the applicable Contractor(s), or as to all Contractors, under this Article 6 is without penalty
14 to or further obligation of the County.
15 6.5 County's Rights upon Termination. Upon County's termination for breach by the
16 applicable Contractor under this Article 6, the County may demand repayment by the applicable
17 Contractor of any monies disbursed to the applicable Contractor under this Agreement that, in
18 the County's sole judgment, were not expended in compliance with this Agreement. The
19 applicable Contractor shall promptly refund all such monies upon demand. This section survives
20 the termination of this Agreement.
21 Article 7
22 Independent Contractor
23 7.1 Status. In performing under this Agreement, each Contractor, including its officers,
24 agents, subcontractors, employees, or volunteers, is at all times acting and performing as an
25 independent contractor, in an independent capacity, and not as an officer, agent, servant,
26 employee, joint venturer, partner, or associate of the County.
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1 7.2 Verifying Performance. The County has no right to control, supervise, or direct the
2 manner or method of the Contractor's performance under this Agreement, but the County may
3 verify that the Contractor is performing according to the terms of this Agreement.
4 7.3 Benefits. Because of its status as an independent contractor, each Contractor has
5 no right to employment rights or benefits available to County employees. Each Contractor is
6 solely responsible for providing to its own employees all employee benefits required by law.
7 Each Contractor shall save the County harmless from all matters relating to the payment of
8 Contractor's employees, including compliance with Social Security withholding and all related
9 regulations.
10 7.4 Services to Others. Each Contractor and the County acknowledge that, during the
11 term of this Agreement, the Contractor may provide services to others unrelated to the County.
12 Article 8
13 Indemnity and Defense
14 8.1 Indemnity. Each Contractor shall indemnify and hold harmless and defend the
15 County (including its officers, agents, employees, including further the County's Director and the
16 County's Representative, and volunteers) against all claims, demands, injuries, damages, costs,
17 expenses (including attorney fees and costs), fines, penalties, and liabilities of any kind to the
18 County, the Contractor, any other Contractors, or any third party that arise from or relate to any
19 actual or alleged negligent or wrongful acts, errors or omissions of the Contractor (or any of its
20 officers, agents, subcontractors, employees, or volunteers) under this Agreement. The County
21 may conduct or participate in its own defense without affecting the Contractor's obligation to
22 indemnify and hold harmless or defend the County.
23 8.2 Survival. This Article 8 survives the termination of this Agreement.
24 Article 9
25 Insurance
26 9.1 Each Contractor shall comply with all the insurance requirements in Exhibit E to this
27 Agreement, "Insurance Requirements."
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1 Article 10
2 Security of Personal Information
3 10.1 Each Contractor shall comply with the security requirements in Exhibit F to this
4 Agreement, "Security of Personal Information."
5 Article 11
6 Inspections, Audits, and Public Records
7 11.1 Other Provisions Applicable. The provisions of this Article 11 are subject to the
8 provisions of Article 2 hereof, "County's Responsibilities," and to that end, nothing in this Article
9 11 is or shall be interpreted to be a waiver of the for the attorney-client privilege of confidential
10 communications (California Evidence Code secs 952 and 954) or the attorney work product
11 doctrine of confidentiality (California Code of Civil Procedure, secs. 2018.010 through 2018.080)
12 set forth in Section 2 hereof, "County's Responsibilities."
13 11.2 Inspection of Documents. Each Contractor shall make available to the County, and
14 the County may examine at any time during business hours and as often as the County deems
15 necessary, all of the Contractor's records and data with respect to the matters covered by this
16 Agreement, excluding attorney-client privileged communications between the Contractor and its
17 own attorneys. Each Contractor shall, upon request by the County, permit the County to audit
18 and inspect all of such records and data to ensure the Contractor's compliance with the terms of
19 this Agreement.
20 11.3 State Audit Requirements. If the compensation to be paid by the County under this
21 Agreement exceeds $10,000, each Contractor is subject to the examination and audit of the
22 California State Auditor, as provided in Government Code section 8546.7, for a period of three
23 years after final payment under this Agreement. The provisions of this section apply to all
24 compensation paid by the County in the aggregate to all Contractors, and without regard to
25 compensation paid to any one Contractor, under this Agreement. This section survives the
26 termination of this Agreement.
27 11.4 Public Records. The County is not limited in any manner with respect to its public
28 disclosure of this Agreement or any record or data that each Contractor may provide to the
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1 County. The County's public disclosure of this Agreement or any record or data that the
2 Contractor may provide to the County may include but is not limited to the following:
3 (A) The County may voluntarily, or upon request by any member of the public or
4 governmental agency, disclose this Agreement to the public or such governmental
5 agency.
6 (B) The County may voluntarily, or upon request by any member of the public or
7 governmental agency, disclose to the public or such governmental agency any record or
8 data that the Contractor may provide to the County, unless such disclosure is prohibited
9 by court order.
10 (C)This Agreement, and any record or data that the Contractor may provide to the
11 County, is subject to public disclosure under the Ralph M. Brown Act (California
12 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
13 (D)This Agreement, and any record or data that the Contractor may provide to the
14 County, is subject to public disclosure as a public record under the California Public
15 Records Act (California Government Code, Title 1, Division 7, Chapter 3.5, beginning
16 with section 6250) ("CPRA").
17 (E) This Agreement, and any record or data that the Contractor may provide to the
18 County, is subject to public disclosure as information concerning the conduct of the
19 people's business of the State of California under California Constitution, Article 1,
20 section 3, subdivision (b).
21 (F) Any marking of confidentiality or restricted access upon or otherwise made with
22 respect to any record or data (except for the attorney-client privilege of confidential
23 communications (California Evidence Code secs 952 and 954) and the attorney work
24 product doctrine of confidentiality (California Code of Civil Procedure, secs. 2018.010
25 through 2018.080)) that the Contractor may provide to the County shall be disregarded
26 and have no effect on the County's right or duty to disclose to the public or governmental
27 agency any such record or data.
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1 11.5 Public Records Act Requests. If the County receives a written or oral request
2 under the CPRA to publicly disclose any record that is in the Contractor's possession or control,
3 and which the County has a right, under any provision of this Agreement or applicable law, to
4 possess or control, then the County may demand, in writing, that the Contractor deliver to the
5 County, for purposes of public disclosure, the requested records that may be in the possession
6 or control of the Contractor. Within five (5) business days after the County's demand, the
7 Contractor shall (a) deliver to the County all of the requested records that are in the Contractor's
8 possession or control, together with a written statement that the Contractor, after conducting a
9 diligent search, has produced all requested records that are in the Contractor's possession or
10 control, or (b) provide to the County a written statement that the Contractor, after conducting a
11 diligent search, does not possess or control any of the requested records. The Contractor shall
12 cooperate with the County with respect to any County demand for such records. If the
13 Contractor wishes to assert that any specific record or data is exempt from disclosure under the
14 CPRA or other applicable law, it must deliver the record or data to the County and assert the
15 exemption by citation to specific legal authority within the written statement that it provides to
16 the County under this section. The Contractor's assertion of any exemption from disclosure is
17 not binding on the County, but the County will give at least ten (10) days' advance written notice
18 to the Contractor before disclosing any record subject to the Contractor's assertion of exemption
19 from disclosure. The Contractor shall indemnify the County for any court-ordered award of costs
20 or attorney's fees under the CPRA that results from the Contractor's delay, claim of exemption,
21 failure to produce any such records, or failure to cooperate with the County with respect to any
22 County demand for any such records.
23 Article 12
24 Disclosure of Self-Dealing Transactions
25 12.1 Applicability. This Article 12 applies to each Contractor that is operating as a
26 corporation, or changes its status to operate as a corporation.
27 12.2 Duty to Disclose. If any member of the Contractor's board of directors is party to a
28 self-dealing transaction, he or she shall disclose the transaction by completing and signing a
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1 "Self-Dealing Transaction Disclosure Form" (Exhibit D to this Agreement) and submitting it to
2 the County before commencing the transaction or immediately after.
3 12.3 Definition. "Self-dealing transaction" means a transaction to which the Contractor is
4 a party and in which one or more of its directors, as an individual, has a material financial
5 interest.
6 Article 13
7 General Terms
8 13.1 Modification. Except as provided in Article 6 hereof, "Termination and Suspension,"
9 this Agreement may not be modified, and no waiver is effective, except by written agreement
10 signed by (a) the applicable Contractor and the County, but, in such case only with respect to
11 such Contractor, or (b) all Contractors and the County. The Contractor acknowledges that
12 County employees have no authority to modify this Agreement except as expressly provided in
13 this Agreement.
14 13.2 Additional Contractors. The County reserves the right to engage any additional
15 person(s) or entity(ies) from time to time for the services in Exhibit B to this Agreement, "Scope
16 of Services." The County, as authorized by the Board of Supervisors, may, without the consent
17 of any of the then-current Contractors, enter into an amendment with any such additional
18 person(s) or entity(ies) to add them as a Contractor(s) to this Agreement, and such amendment
19 shall apply to such Contractor(s) and the County as to such Contractor(s), respectively.
20 13.3 Non-Assignment. No Contractor may assign its rights or delegate its obligations
21 under this Agreement without the prior written consent of the County, and in such case, such
22 any such assignment or delegation shall apply to such Contractor and the County as to such
23 Contractor, and shall not affect any other Contractors under this Agreement.
24 13.4 Governing Law. The laws of the State of California govern all matters arising from
25 or related to this Agreement.
26 13.5 Jurisdiction and Venue. This Agreement is signed and performed in Fresno
27 County, California. Each Contractor consents to California jurisdiction for actions arising from or
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1 related to this Agreement, and, subject to the Government Claims Act, all such actions must be
2 brought and maintained in Fresno County.
3 13.6 Construction. The final form of this Agreement is the result of each of the
4 Contractor's and the County's combined efforts as to such Contractor. If anything in this
5 Agreement is found by a court of competent jurisdiction to be ambiguous, that ambiguity shall
6 not be resolved by construing the terms of this Agreement against any party.
7 13.7 Days. Unless otherwise specified, "days" means calendar days.
8 13.8 Headings. The headings and section titles in this Agreement are for convenience
9 only and are not part of this Agreement.
10 13.9 Severability. If anything in this Agreement is found by a court of competent
11 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains in
12 effect, and the applicable Contractor and the County as to such Contractor shall make best
13 efforts to replace the unlawful or unenforceable part of this Agreement with lawful and
14 enforceable terms intended to accomplish the applicable Contractor's and the County's original
15 intent as to such Contractor.
16 13.10 Nondiscrimination. During the performance of this Agreement, each Contractor
17 shall not unlawfully discriminate against any employee or applicant for employment, or recipient
18 of services, because of race, religious creed, color, national origin, ancestry, physical disability,
19 mental disability, medical condition, genetic information, marital status, sex, gender, gender
20 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to
21 all applicable State of California and federal statutes and regulation.
22 13.11 No Waiver. Payment, waiver, or discharge by the County of any liability or obligation
23 of any Contractor under this Agreement on any one or more occasions is not a waiver of
24 performance of any continuing or other obligation of the Contractor and does not prohibit
25 enforcement by the County of any obligation on any other occasion.
26 13.12 Entire Agreement. This Agreement, including its exhibits, is the entire agreement
27 between each Contractor and the County as to such Contractor with respect to the subject
28 matter of this Agreement, and it supersedes all previous negotiations, proposals, commitments,
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1 writings, advertisements, publications, understandings and agreements (including, but not
2 limited to, Agreement P-21-020, but only with respect to the Contractors) of any nature unless
3 those things are expressly included in this Agreement. If there is any inconsistency between the
4 terms of this Agreement without its exhibits and the terms of the exhibits, then the inconsistency
5 will be resolved by giving precedence first to the terms of this Agreement without its exhibits,
6 and then to the terms of the exhibits. This Agreement shall replace, restate, and supersede
7 Agreement P-21-020 in its entirety from and after July 18, 2023, but only with respect to the
8 Contractors.
9 13.13 No Third-Party Beneficiaries. This Agreement does not and is not intended to
10 create any rights or obligations for any person or entity except for the applicable Contractor and
11 the County as to such Contractor, and no Contractor is an intended third party beneficiary of any
12 other Contractor under this Agreement.
13 13.14 Authorized Signature. Each Contractor represents and warrants to the County that:
14 (A) The Contractor is duly authorized and empowered to sign and perform its
15 obligations under this Agreement.
16 (B) The individual signing this Agreement on behalf of the Contractor is duly
17 authorized to do so and his or her signature on this Agreement legally binds the
18 Contractor to the terms of this Agreement.
19 13.15 Electronic Signatures. Each Contractor and the County agree as to such
20 Contractor that this Agreement may be executed by electronic signature as provided in this
21 section.
22 (A) An "electronic signature" means any symbol or process intended by an individual
23 signing this Agreement to represent their signature, including but not limited to (1) a
24 digital signature; (2) a faxed version of an original handwritten signature; or (3) an
25 electronically scanned and transmitted (for example by PDF document) version of an
26 original handwritten signature.
27 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
28 equivalent to a valid original handwritten signature of the person signing this Agreement
16
Master Service Agreement
(Workplace Investigations—County of Fresno)
1 for all purposes, including but not limited to evidentiary proof in any administrative or
2 judicial proceeding, and (2) has the same force and effect as the valid original
3 handwritten signature of that person.
4 (C)The provisions of this section satisfy the requirements of Civil Code section
5 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3,
6 Part 2, Title 2.5, beginning with section 1633.1).
7 (D) Each Contractor or the County, as applicable, using a digital signature represents
8 that it has undertaken and satisfied the requirements of Government Code section 16.5,
9 subdivision (a), paragraphs (1) through (5), and agrees that each other party (the
10 Contractor or the County as to such Contractor) may rely upon that representation.
11 13.16 This Agreement is not conditioned upon any Contractor or the County as to such
12 Contractor conducting the transactions under it by electronic means and either party may sign
13 this Agreement with an original handwritten signature.
14 13.17 Counterparts. This Agreement may be signed in counterparts, each of which is an
15 original, and all of which together constitute this Agreement between each Contractor and the
16 County as to such Contractor.
17 [SIGNATURE PAGE FOLLOWS]
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Master Service Agreement
(Workplace Investigations—County of Fresno)
I Each Contractor and the County as to such Contractor are signing this Agreement on
2 the date stated in the introductory clause.
3
CONTRACTOR(S) COUNTY OF FRESNO
4
5
SEE ATTACHED EXHIBIT A Sa Qu nt ro, C airman of the Board of
6 SupQnAsok
NaLffie County of Fresno
7 Attest:
Bernice E. Seidel
8 Clerk of the Board of Supervisors
County of Fresno, State of California
9
10 By:
Deputy
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PLEASE SEE ADDITIONAL
18 SIGNATURE PAGES ATTACHED
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21 For accounting use only:
22 Org No.: 10100500
Account No.: 7295
23 Fund No.: 0001
Subclass No.: 10000
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Master Service Agreement
(Workplace Investigations—County of Fresno)
1 CONTRACTOR
2 Leist&Associates
3
4 t /
5 William L st,Owrkr
6 635 Barstow Ave,#9
Clovis,CA,93612
7 (559)307-3041
8 hill(djeistandassociates.com
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Master Service Agreement
(Workplace Investigations—County of Fresno)
1 CONTRACTOR
2 Kramer Workplace Investigations
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Kare Kramer, O r
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7 PO Box 266
8 Danville, CA, 94526
(925) 838-6435
9 karen(a kramerlaw.net
Fax: (925) 838-7564
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Master Service Agreement
(Workplace Investigations—County of Fresno)
1 CONTRACTOR
2 Sloan Sakai Yeung &Wong LLP
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Genevieve Ng Partner
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1220 Seventh Street, 3rd FI.
6 Berkeley, CA, 94710
(510) 995-5800
7 gng(a-)-sloaL
8 fax: (916) 258-8801
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Master Service Agreement
(Workplace Investigations—County of Fresno)
1 CONRACTOR
2 Van Dermyden Makus Law Corporation
3 Zf'W�
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Eli Makus, Managing Partner
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6 2520 Venture Oaks Way, Suite 450
Sacramento, CA, 95833
7 (916) 779-2402
8 Ci n ikc. vi in i,cayy(,vipcom
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Master Service Agreement
(Workplace Investigations—County of Fresno)
Exhibit A
1 Third Party Investigations Firm List
2 These Contractors have been identified by the County as Contractors that will meet the
3 County's needs for purposes of providing investigations of matters of employee conduct under
4 this Agreement:
5
6 1. Leist &Associates
7 635 Barstow Ave, #9
Clovis, CA, 93612
8 (559) 307-3041
9 bi�leistandassociates.com
10 Contractor's lead representative: William Leist, Owner
11
2. Kramer Workplace Investigations
12
PO Box 266
13 Danville, CA, 94526
(925) 838-6435
14 karen(a).kramerlaw.net
15 Fax: (925) 838-7564
16 Contractor's lead representative: Karen Kramer, Owner
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3. Sloan Sakai Yeung &Wong LLP
18
1220 Seventh Street, 3rd FI.
19 Berkeley, CA, 94710
(510) 995-5800
20 gng(aD_sloansakai.com
21 Fax: (916) 258-8801
22 Contractor's lead representative: Genevieve Ng, Partner
23
24 4. Van Dermyden Makus Law Corporation
25 2520 Venture Oaks Way, Suite 450
Sacramento, CA, 95833
26 (916) 779-2402
ermca�vmiawcorp.com
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28 Contractor's lead representative: Eli Makus, Managing Partner
A-1
Master Service Agreement
(Workplace Investigations—County of Fresno)
Exhibit B
1 Scope of Services
2 5. Investigative Services.
3 The Contractor shall undertake investigations of matters of employee conduct including,
4 but not limited to, allegations of sexual misconduct, harassment, discrimination, retaliation,
5 workplace violence, and violations of County's personnel rules, policies, and management
6 directives according to the parameters and objectives outlined by the County's Representative
7 on referral of each matter to the Contractor. The Contractor shall exercise professional
8 discernment in conducting all investigations with proper sensitivity to the inherent confidentiality
9 of any personnel matter for the County in its capacity as a public agency.
10 The Contractor understands that the County is often required to complete investigations
11 and potential responses within specified timeframes, which can be time-sensitive, and will
12 identify a primary point of contact for assignment of investigation matters. The Contractor shall
13 further acknowledge receipt of the assignment within twenty-four (24) hours of notice.
14 The Contractor shall review the preliminary material in the assigned matter for actual or
15 potential conflicts of interest of the Contractor, including any of its officers, agents,
16 subcontractors, employees, or volunteers, and, after having performed a reasonable
17 investigation, inform the County's Representative of such actual or potential conflicts within this
18 same twenty-four (24) hour period. Such conflicts of interest exist if the Contractor, including
19 any of its officers, agents, subcontractors, employees, or volunteers, had, has, or expects within
20 the foreseeable future to have a personal or financial relationship with a complainant, subject
21 matter, or witness in an investigation. Additionally, if the Contractor is subject to the Rules of
22 Professional Conduct of the State Bar of California ("Rules"), the Contractor shall also ensure
23 within such twenty-four (24) hour period that, after having performed a reasonable investigation,
24 the performance of its services for the assigned matter does not result in a "conflict of interest"
25 as that term is used in the Rules. In the event a "conflict of interest" occurs, the Contractor will
26 request the County's Board of Supervisors to waive such "conflict of interest" on a case-by-case
27 basis.
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B-1
Master Service Agreement
(Workplace Investigations—County of Fresno)
Exhibit B
1 The scope of investigation will preferably be confirmed between the Contractor and the
2 County's Representative within forty-eight (48) hours of completion of the review for potential
3 conflicts, but in all cases not more than within one (1) week of assignment. This determination of
4 scope shall include the determination of the identities of witnesses who will be scheduled for
5 interviews, procurement of foundational documents, and may be in such forms as agreed upon
6 by both Contractor and County's Representative. At any time, upon receipt of information that
7 suggests a scope for a given matter requires expansion, for example due to unforeseen
8 numbers of witnesses or previously unknown relevant information, both the Contractor and the
9 County's Representative shall confer on necessary changes to scope and time allotted for the
10 investigation.
11 Generally, all matters are expected to be investigated as quickly as possible under the
12 circumstances. The Contractor acknowledges and agrees that County's goal is that the
13 Contractor's investigation of a matter is to be completed, and that the Contractor's report,
14 including findings, of the investigation is issued to the County's Representative, all within six (6)
15 weeks of the County's Representative's referral of the matter to the Contractor, provided
16 however, the Contractor and the County acknowledge and agree that circumstances outside of
17 the County's or the Contractor's reasonable control may frustrate the Contractor's performance
18 of such obligations within such time period (or within any extended period to which the County's
19 Representative may agree as provided hereinbelow). If the Contractor anticipates that it cannot
20 complete the investigation and issue the report, including findings, within that period (or within
21 any extended period to which the County's Representative may agree as provided
22 hereinbelow), the Contractor will promptly inform the County's Representative of such
23 circumstances and the reason for such actual or expected delay, and then the County's
24 Representative and the Contractor will promptly thereafter conduct good faith communications
25 concerning such circumstances to establish an agreed-upon extended period for the
26 performance of such obligations, and the Contractor will diligently work toward the completion of
27 the investigation of the matter, and thereafter issue to the County's Representative the
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B-2
Master Service Agreement
(Workplace Investigations—County of Fresno)
Exhibit B
1 Contractor's report, including findings, of the investigation, all within their agreed-upon extended
2 period.
3 The Contractor shall deliver its report, including findings, of the investigation to the
4 County's Representative in such form, but not the content, as may reasonably be required by
5 the County's Representative, provided however, the County's Representative is not precluded
6 from requesting the Contractor to undertake further investigation or provide further details in a
7 report or a supplemental report.
8 The Contractor understands and expects that its findings are its own independent
9 findings, and that the Contractor's role as an unbiased third party is dependent upon not
10 changing its ultimate findings. Any reports, including findings, provided by the Contractor to the
11 County's Representative, in whatever form or format, assembled or prepared by the Contractor
12 shall be the sole property of County without restriction or limitation. The County shall be entitled
13 to immediate possession of such reports.
14 2. Other Services Relating to a Workplace Investigation.
15 In the event, the County requests, or the Contractor is otherwise required by order of the
16 court or in relation to legal proceedings, to respond to any subpoena or discovery, to provide
17 testimony at deposition, trial or arbitration, the County shall compensate the Contractor at its
18 then-current rates applicable to the personnel performing the activities under this Agreement for
19 the reasonable amount of time expended therefor, including all reasonably required preparation
20 time therefor, provided however, the County is not obligated to provide legal counsel to the
21 Contractor or compensate or otherwise reimburse the Contractor for any other costs or
22 expenses, including, but not limited to, the Contractor's costs of engaging legal counsel. In the
23 event that the Contractor is required by order of the court or in relation to legal proceedings, to
24 respond to any subpoena or discovery, to provide testimony at deposition, trial or arbitration, the
25 Contractor shall promptly provide written notice thereof to the County prior to performing any
26 such activities, and the Contractor's prompt provision of such notice to the County prior to
27 performing any such activities is a condition precedent of County's obligation to compensate the
28 Contractor for the performance of such activities.
B-3
Master Service Agreement
(Workplace Investigations—County of Fresno)
Exhibit B
1 3. Terms Relevant to Contractors that are Law Firms or Attorneys.
2 The County and each Contractor, which is a law firm or an attorney, agree to the
3 following additional terms that will apply to the Contractor's performance of its services under
4 this Agreement:
5 a. The Contractor will not render a legal determination whether there were any
6 violations of any law or statute.
7 b. The Contractor will not act as an advocate or provide legal advice to the County
8 with respect to what employment actions, if any, should be taken as a result of the Contractor's
9 investigation and report, including findings.
10 C. The Contractor will not represent the County in any administrative or legal action
11 or proceeding relating to the Contractor's investigation or report, including findings, that the
12 Contractor issued to the County's Representative.
13 -END-
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B-4
Master Service Agreement
(Workplace Investigations—County of Fresno)
Exhibit C
1 Compensation
2 Each Contractor will be compensated for performance of its services under this
3 Agreement as provided in this Exhibit C. Each Contractor is not entitled to any compensation
4 except as expressly provided for the Contractor in this Exhibit C.
5 1. Leist &Associates
6 Owner (William Leist) and $145/hr, plus actual expenses, $.65
7 Associate Investigators per mile driven.
8 2. Kramer Workplace Investigations
9 Karen Kramer $445/hr— Investigation Services
10 (IS)
$545/hr— Post-Investigation
11 Services (i.e., Testimony, Court)
PIS
12 Senior Associate Attorneys $395/hr IS
13 $495/hr PIS
Associate Attorneys $350/hr IS
14 $450/hr PIS
15 nParalegal $175/hr
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17 3. Sloan Sakai Yeung &Wong, LLP
18 Genevieve Ng $365/hr
19 Ivan Delventhal $350/hr
20 Angela Cabral $315/hr
21 Howard Jordan $275/hr
22 Neil Telford $230/hr
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24 *all rates are plus actual costs incurred, and travel at the IRS rate. Travel
25 time is billed at the hourly rate when traveling upon client behalf.
26 [Go to next page]
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C-1
Master Service Agreement
(Workplace Investigations—County of Fresno)
Exhibit C
1 4. Van Dermyden Makus Law Corporation
2 Personnel Initial Three-Year Term Optional Year 1 Optional Year 2
Senior Partner $520 $5S6 $595
3 Partner and Of Counsel $445 $476 $509
4 Senior Attorney $365 $391 $418
I nvestigator
Attorney Investigator $325 $348 $372
5 Law Clerk $210 $225 $241
6 Paralegal $160 $171 $183
7 *all rates are plus actual costs incurred, and travel at the IRS rate. Travel
time is billed at the hourly rate when traveling upon client behalf. The
8 Contractor will not charge for word processing or overtime expenses
associated with administrative personnel. An administrative fee of 2%
9 calculated on service fees billed shall be charged for costs and expenses
10 related to the handling of the matter, such as postage, photocopies,
parking fees, bridge and other road tolls, fax charges, telephone charges,
11 and similar. The administrative surcharge does not include other out-of-
pocket fees such as messenger or special delivery service fees, travel
12 costs, vehicle rental, mileage, meals, lodging or similar charges.
13 -END-
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C-2
Master Service Agreement
(Workplace Investigations—County of Fresno)
Exhibit D
1 Self-Dealing Transaction Disclosure Form
2 In order to conduct business with the County of Fresno ("County"), members of a
contractor's board of directors ("County Contractor"), must disclose any self-dealing transactions
3 that they are a party to while providing goods, performing services, or both for the County. A
4 self-dealing transaction is defined below:
5 "A self-dealing transaction means a transaction to which the corporation is a party and in
which one or more of its directors has a material financial interest."
6 The definition above will be used for purposes of completing this disclosure form.
7 Instructions
8 (1) Enter board member's name, job title (if applicable), and date this disclosure is being
9 made.
10 (2) Enter the board member's company/agency name and address.
11 (3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
12 a. The name of the agency/company with which the corporation has the transaction;
13 and
14 b. The nature of the material financial interest in the Corporation's transaction that
the board member has.
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(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
16 provisions of the Corporations Code.
17 The form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
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D-1
Master Service Agreement
(Workplace Investigations—County of Fresno)
Exhibit D
1 (1) Company Board Member Information:
2 Name: Date:
3 Job Title:
4 (2) Company/Agency Name and Address:
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9 (3) Disclosure (Please describe the nature of the self-dealing transaction you are a
10 party to)
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16 (4) Explain why this self-dealing transaction is consistent with the requirements of
Corporations Code § 5233 (a)
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23 (5) Authorized Signature
24 Signature: Date:
25
26 -END-
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D-2
Master Service Agreement
(Workplace Investigations—County of Fresno)
Exhibit E
1 Insurance Requirements
2 1. Required Policies
3 Without limiting the County's right to obtain indemnification from the Contractor or any third
parties, Contractor, at its sole expense, shall maintain in full force and effect the following
4 insurance policies throughout the term of this Agreement.
5 (A) Commercial General Liability. Commercial general liability insurance with limits of not
6 less than Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of
Four Million Dollars ($4,000,000). This policy must be issued on a per occurrence basis.
7 Coverage must include products, completed operations, property damage, bodily injury,
personal injury, and advertising injury. The Contractor shall obtain an endorsement to
8 this policy naming the County of Fresno, its officers, agents, employees, and volunteers,
9 individually and collectively, as additional insureds, but only insofar as the operations
under this Agreement are concerned. Such coverage for additional insureds will apply as
10 primary insurance and any other insurance, or self-insurance, maintained by the County
is excess only and not contributing with insurance provided under the Contractor's
11 policy.
12 (B) Automobile Liability. Automobile liability insurance with limits of not less than One
13 Million Dollars ($1,000,000) per occurrence for bodily injury and for property damages.
Coverage must include any auto used in connection with this Agreement.
14 (C)Workers Compensation. Workers compensation insurance as required by the laws of
15 the State of California with statutory limits.
16 (D) Employer's Liability. Employer's liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for disease.
17 (E) Professional Liability. Professional liability insurance with limits of not less than One
18 Million Dollars ($1,000,000) per occurrence and an annual aggregate of Three Million
Dollars ($3,000,000). If this is a claims-made policy, then (1)the retroactive date must
19 be prior to the date on which services began under this Agreement; (2)the Contractor
20 shall maintain the policy and provide to the County annual evidence of insurance for not
less than five years after completion of services under this Agreement; and (3) if the
21 policy is canceled or not renewed, and not replaced with another claims-made policy
with a retroactive date prior to the date on which services begin under this Agreement,
22 then the Contractor shall purchase extended reporting coverage on its claims-made
23 policy for a minimum of five years after completion of services under this Agreement.
24 2. Additional Requirements
25 (A) Verification of Coverage. Within thirty (30) days after the Contractor signs this
Agreement, and at any time during the term of this Agreement as requested by the
26 County's Risk Manager or the County Administrative Office, the Contractor shall deliver,
or cause its broker or producer to deliver, to the County Risk Manager, at 2220 Tulare
27 Street, 16th Floor, Fresno, California 93721, or
28 HRRiskManagement@fresnocountyca.gov, and by mail or email to the person identified
E-1
Master Service Agreement
(Workplace Investigations—County of Fresno)
Exhibit E
1 to receive notices under this Agreement, certificates of insurance and endorsements for
2 all of the coverages required under this Agreement.
(i) Each insurance certificate must state that: (1) the insurance coverage has been
3 obtained and is in full force; (2) the County, its officers, agents, employees, and
4 volunteers are not responsible for any premiums on the policy; and (3) the
Contractor has waived its right to recover from the County, its officers, agents,
5 employees, and volunteers any amounts paid under any insurance policy
required by this Agreement and that waiver does not invalidate the insurance
6 policy.
7 (ii) The commercial general liability insurance certificate must also state, and include
8 an endorsement, that the County of Fresno, its officers, agents, employees, and
volunteers, individually and collectively, are additional insureds insofar as the
9 operations under this Agreement are concerned. The commercial general liability
insurance certificate must also state that the coverage shall apply as primary
10 insurance and any other insurance, or self-insurance, maintained by the County
11 shall be excess only and not contributing with insurance provided under the
Contractor's policy.
12 (iii) The automobile liability insurance certificate must state that the policy covers any
13 auto used in connection with this Agreement.
14 (iv) The professional liability insurance certificate, if it is a claims-made policy, must
also state the retroactive date of the policy, which must be prior to the date on
15 which services began under this Agreement.
16 (B) Acceptability of Insurers. All insurance policies required under this Agreement must be
issued by admitted insurers licensed to do business in the State of California and
17 possessing at all times during the term of this Agreement an A.M. Best, Inc. rating of no
18 less than A: VI I.
19 (C) Notice of Cancellation or Change. For each insurance policy required under this
Agreement, the Contractor shall provide to the County, or ensure that the policy requires
20 the insurer to provide to the County, written notice of any cancellation or change in the
policy as required in this paragraph. For cancellation of the policy for nonpayment of
21 premium, the Contractor shall, or shall cause the insurer to, provide written notice to the
22 County not less than ten (10) days in advance of cancellation. For cancellation of the
policy for any other reason, and for any other change to the policy, the Contractor shall,
23 or shall cause the insurer to, provide written notice to the County not less than thirty (30)
days in advance of cancellation or change. The County in its sole discretion may
24 determine that the failure of the Contractor or its insurer to timely provide a written notice
25 required by this paragraph is a breach of this Agreement.
26 (D) County's Entitlement to Greater Coverage. If the Contractor has or obtains insurance
with broader coverage, higher limits, or both, than what is required under this
27 Agreement, then the County requires and is entitled to the broader coverage, higher
limits, or both. To that end, the Contractor shall deliver, or cause its broker or producer
28 to deliver, to the County's Risk Manager certificates of insurance and endorsements for
E-2
Master Service Agreement
(Workplace Investigations—County of Fresno)
Exhibit E
1 all of the coverages that have such broader coverage, higher limits, or both, as required
2 under this Agreement.
(E) Waiver of Subrogation. The Contractor waives any right to recover from the County, its
3 officers, agents, employees, and volunteers any amounts paid under the policy of
4 worker's compensation insurance required by this Agreement. The Contractor is solely
responsible to obtain any policy endorsement that may be necessary to accomplish that
5 waiver, but the Contractor's waiver of subrogation under this paragraph is effective
whether or not the Contractor obtains such an endorsement.
6
(F) County's Remedy for Contractor's Failure to Maintain. If the Contractor fails to keep
7 in effect at all times any insurance coverage required under this Agreement, the County
8 may, in addition to any other remedies it may have, suspend or terminate this
Agreement upon the occurrence of that failure, or purchase such insurance coverage,
g and charge the cost of that coverage to the Contractor. The County may offset such
charges against any amounts owed by the County to the Contractor under this
10 Agreement.
11 (G)Subcontractors. The Contractor shall require and verify that all subcontractors used by
the Contractor to provide services under this Agreement maintain insurance meeting all
12 insurance requirements provided in this Agreement. This paragraph does not authorize
13 the Contractor to provide services under this Agreement using subcontractors.
14 -END-
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E-3
Master Service Agreement
(Workplace Investigations—County of Fresno)
Exhibit F
1 Security of Personal Information
2 1. Definitions
3 Capitalized terms used in this Exhibit F have the meanings set forth in this section 1.
4 a. "County's Representative" has the same meaning given to it in Section 2.1 of this
5 Agreement.
b. "Disclose" or any derivative of that word means to disclose, release, transfer,
6 disseminate, or otherwise provide access to or communicate all or any part of any
7 Personal Information orally, in writing, or by electronic or any other means to any person.
8 c. "Person" means any natural person, including an employee of the County.
9 d. "Personal Information" means any and all information, including any data, provided, or
to which access is provided, to the Contractor by or upon the authorization of the
10 County's Representative, under this Agreement, including but not limited to employment-
related records that: (i) identifies, describes, or relates to, or is associated with, or is
11 capable of being used to identify, describe, or relate to, or associate with, a Person
12 (including, without limitation, names, physical descriptions, signatures, addresses,
telephone numbers, e-mail addresses, education, financial matters, employment history,
13 and other unique identifiers, as well as statements made by or attributable to the
Person); (ii) is used or is capable of being used to authenticate a Person; or (iii) is
14 personal information within the meaning of California Civil Code section 1798.3,
15 subdivision (a), or 1798.80, subdivision (e). Personal Information does not include
publicly available information that is lawfully made available to the general public from
16 federal, state, or local government records.
17 e. "Use" or any derivative of that word means to receive, acquire, collect, apply,
manipulate, employ, process, transmit, disseminate, access, store, disclose, or dispose
18 of Personal Information.
19 2. Standard of Care
20 a. The Contractor acknowledges that, in the course of its engagement by the County under
this Agreement, the Contractor may Use Personal Information only as permitted in this
21 Agreement for the purposes of this Agreement.
22 b. The Contractor acknowledges that Personal Information is deemed to be confidential
23 information of, or owned by, the County (or Persons from whom the County receives or
has received Personal Information) and is not confidential information of, or owned or by,
24 the Contractor. The Contractor further acknowledges that all right, title, and interest in or
to the Personal Information remains solely in the County (or Persons from whom the
25 County receives or has received Personal Information) regardless of the Contractor's
Use of that Personal Information.
26
27 c. The Contractor agrees and covenants in favor of the Country that the Contractor shall:
28
F-1
Master Service Agreement
(Workplace Investigations—County of Fresno)
Exhibit F
1 i. keep and maintain all Personal Information in strict confidence, using such
degree of care as is reasonable and appropriate to avoid disclosure to anyone or
2 any entity other than the County for purposes of this Agreement;
3 ii. Use Personal Information exclusively for the purposes for which the Personal
4 Information is made accessible to the Contractor for purposes of this Agreement;
5 iii. not Use, Disclose, sell, rent, license, or otherwise make available Personal
Information for the Contractor's own purposes or for the benefit of anyone other
6 than the County, without the County's express prior written consent, which the
County may give or withhold in its sole and absolute discretion; and
7
iv. not, directly or indirectly, Disclose Personal Information to any Person other than
8 the County as allowed under this Agreement for purposes of this Agreement.
9 d. Notwithstanding the foregoing section 2.(c), in any case in which the Contractor believes
it is required to disclose Personal Information to government regulatory authorities, or
10 pursuant to a legal proceeding, or otherwise as may be required by applicable law,
11 Contractor shall (i) immediately notify the County's Representative of the specific
demand for, and legal authority for the disclosure, including providing the County's
12 Representative with a copy of any notice, discovery demand, subpoena, or order, as
applicable, received by the Contractor from any government regulatory authorities, or in
13 relation to any legal proceeding, and (ii) promptly notify the County's Representative
14 before such Personal Information is offered by the Contractor for such disclosure so that
the County may have sufficient time to obtain a court order or take any other action the
15 County may deem necessary to protect the Personal Information from such disclosure,
and the Contractor shall cooperate with the County to minimize the scope of such
16 disclosure of such Personal Information.
17 -END-
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F-2
Master Service Agreement
(Workplace Investigations—County of Fresno)