Before becoming an ALJ, Judge Geren worked for 17 years for the State of California, Department of Transportation as a senior civil litigation attorney where he led a team of trial attorneys defending the state in various lawsuits, including employment litigation. As a state attorney, he defended high-ranking department officials in complex and politically sensitive matters. He received numerous exceptional service awards.
Judge Geren graduated with Honors from McGeorge School of Law. He completed several multi-day courses at the National Judicial College, including courses on conducting efficient hearings, evaluating witness testimony, effective decision writing, and advanced mediation training; he has mediated over 300 matters. He lectured nationally on public entity liability, has an article published concerning the Freedom of Inform Act and its role in litigation, and was a California State Bar-approved provider for Mandatory Continuing Legal Education, where he lectured on public entity litigation. As a trial attorney, he was successful in all jury and court trials.
#17..
- 897 -
Main Office
P. O. Box 561
Wilton, CA 95693
(866) 774-3222
Visit us at: www.Solutions-MRG.com
Sacramento Area
Bay Area
Los Angeles Area
Dorian West Blair – Investigations, Training and Human Resources
MUNICIPAL RESOURCE GROUP, LLC
Telephone: (650) 619-9719
[email protected]
Dorian has almost 30 years of employment law and human resources experience. She is a seasoned workplace investigator having investigated and overseen hundreds of investigations primarily for public sector employers, but also for private sector employers. Dorian specializes in investigations of claims of discrimination, harassment, and retaliation based on protected categories, but is also skilled in investigating claims of workplace violence, policy violations, misconduct, wage and hour, and safety.
Dorian has experience preparing position statements for the DFEH, EEOC, and DOE/OCR and testifying at depositions and in administrative proceedings regarding completed investigations.
In addition to conducting investigations, Dorian has expertise in affirmative action plan development and programming; diversity, equity, and inclusion programming (DEI), including developing internship and apprenticeship program; and disability/leaves. She is also skilled in classification, compensation, grievance management, and training.
Dorian began her employment law journey externing for the EEOC Systemic Litigation Unit in her third year of law school. Following graduation, she prosecuted employment cases under Executive Order 11246, Rehabilitation Act, VEVRAA, FMLA, FLSA, OSHA, and STAA as a Trial Attorney at the U.S.
Department of Labor and defended employers in litigation under Title VII, ADA, ADEA, FMLA, FEHA, CFRA and the California Labor Code as a Senior Associate at Rogers, Joseph, O’Donnell. She also worked in-house as Corporate Counsel at PeopleSoft developing and managing the contingent workforce program, managing employment litigation, and backing up the Employment Law Counsel.
In 2002, Dorian moved to the human resources and consulting side conducting and/or overseeing workplace investigations and responding to agency complaints as well as handling other HR-related work. In this capacity, she worked for California State University, East Bay (CSUEB), as the Director, Employment Relations and Practices and the Interim Associate Director of Human Resources and for CSUEB Continuing Education as an Instructor in Disability Law. She also has worked at the University of California, San Francisco School of Medicine (UCSF SOM) as the Director of Human Resources, Silicon Valley Bank as a Senior HR Business Partner, CPS HR Consulting as a Lead Investigator, East Bay Municipal Utility District (EBMUD) as a Diversity and Inclusion Officer, and Its Personnel as an Attorney Investigator. Accomplishments during her career include development of the first AA/EEO program and development of a recruitment process to enhance diversity at CSUEB, improvement of the Management Incentive Program and development of an HR Strategic Plan at USCF SOM, and expansion of the high school, college and specialty internship programs to create a pipeline of diverse candidates and leveraging the District Affinity Groups for recruitment and engagement initiatives at EBMUD.
Dorian earned her Juris Doctorate from Stanford Law School and a Bachelor of Arts in Communications Studies from UCLA, where she graduated cum laude. She is a member of the Association of Workplace Investigators, an active member of the State Bar of California, and an inactive member of the D.C. Bar. #17..
- 898 -
Main Office
P. O. Box 561
Wilton, CA 95693
(866) 774-3222
Visit us at: www.Solutions-MRG.com
Sacramento Area
Bay Area
Los Angeles Area
Lisa Sullivan – Human Resource Services
MUNICIPAL RESOURCE GROUP, LLC
Telephone: (831) 332-2145
[email protected]
Lisa Sullivan brings an executive perspective combined with operational expertise to every project in which she is involved. Her diverse experiences during her exceptional 33-year public sector career honed her ability to see across traditional roles and responsibilities and develop innovative yet practical recommendations.
Lisa’s successes include designing and implementing consolidations, mergers, and reorganizations of divisions, departments, and entire organizations maximizing, service delivery and structural efficiencies. She has conducted many years of labor negotiations (as lead negotiator) using individualized strategies to achieve organizational goals and institutional credibility.
Lisa has designed industry-leading and award-winning continuous improvement programs resulting in significant and measurable organizational performance improvements. She is a skilled facilitator and has led many stakeholder groups to consensus on organizational and operational issues.
Lisa has held pivotal positions with the City of Santa Cruz (six years as the Human Resources and Administrative Services Director), Santa Cruz Regional 9-1-1 (12 years in a variety of key leadership roles), and the City and County of San Francisco (10 years in a variety of upper and operational management positions). She has significant experience in Public Safety and specializes in civilian functions and roles in Police and Fire departments.
Lisa is also a talented private investigator (State of California license #28436) and a California POST Certified Background Investigator. She conducts all manner of workplace investigations: employee misconduct, discrimination/harassment complaints, Title V and Title IX complaints, executive reference checks, and law enforcement background investigations. Lisa’s investigations are professional, independent, efficient, and thorough.
Lisa earned a Bachelor of Arts in Management with honors and other distinctions from Saint Mary’s College of California.
#17..
- 899 -
Main Office
P. O. Box 561
Wilton, CA 95693
(866) 774-3222
Visit us at: www.Solutions-MRG.com
Sacramento Area
Bay Area
Los Angeles Area
Rudy Escalante – Investigations, Public Safety, Organizational Transitions
MUNICIPAL RESOURCE GROUP, LLC
Telephone: (831) 588-1920
[email protected]
Rudy Escalante is a highly experienced private consultant who provides executive leadership and professional management services. Mr. Escalante has over thirty years of experience serving California communities as a Public Safety officer and over seven years of safety and security experience in the private sector. He works to instill a high level of integrity and strong values within organizations. He mentors executives, managers, and supervisors to better understand their role within a government organization.
Mr. Escalante began his public service career in Santa Cruz County. Over a thirty-year career, he rose to become a Police Lieutenant managing the Investigations Section. He developed strong skills in policy review, budget analysis, public relations, and personnel management. Mr. Escalante assumed responsibility as Deputy Chief of Police in the City of Watsonville conducting personnel investigations and assisting the employer as the bargaining table. Three years later, he became Chief of Police in Capitola, the position he held until his Honorable Retirement in 2016. Mr. Escalante served as the Chief Executive Officer for Janus of Santa Cruz, a local non-profit drug and alcohol treatment center serving the residents of Santa Cruz County. With other 140 employees, he participated in complex union negotiations, personnel investigations, and contract negotiations with the County government.
While a Chief of Police, he participated in the Law & Legislative Committee for the California Police Chief’s Association and was the chair of their Firearms Committee. Mr. Escalante is an instructor for the South Bay Regional Public Safety Training Consortium where he teaches personnel investigations to newly promoted police sergeants. Mr. Escalante has security and safety experience in the private sector by developing Injury Illness Prevention Plans (IIPP), Respiratory Protection (RPP) and other OSHA related requirements.
Mr. Escalante is a graduate of the FBI National Academy in Quantico, VA. He holds a master’s degree in public administration from San Jose State University, a BS in Business Management from University of Phoenix, and an AS degree in Criminal Justice from Cabrillo College. He holds certifications for public safety and leadership, including P.O.S.T Executive Development courses and trainings. He is a licensed private investigator experienced in conducting complex workplace investigations. #17..
- 900 -
Main Office
P. O. Box 561
Wilton, CA 95693
(866) 774-3222
Visit us at: www.Solutions-MRG.com
Sacramento Area
Bay Area
Los Angeles Area
Nicole Bussi, AWI-CH – Workplace Investigations
MUNICIPAL RESOURCE GROUP, LLC
Telephone: (415) 218-2693
[email protected]
As an experienced employment attorney investigator, Nicole understands that the failure to conduct a fair, reasonable, and comprehensive investigation can lead to widespread workplace issues and severe problems for a company. Her focus is to conduct investigations that guide appropriate employment decisions and protect all parties involved.
During investigations, Nicole draws on her knowledge and experience to recognize the key issues in an employee complaint that must be addressed to provide the employer with a clear path forward. Having represented employers in litigation, she is able to navigate complicated workplace issues including harassment, discrimination, and retaliation complaints, pay complaints, and unsafe and hostile work environment issues. She provides employers with a clear investigation plan and timely updates throughout the process.
Nicole creates a neutral, safe environment for employees where they feel comfortable opening up about sensitive events and they understand that their concerns are being taken seriously. Her ability to make individuals feel at ease when speaking with her ensures the necessary discovery of additional witnesses and evidence that is crucial to the thoroughness of the investigation.
Prior to affiliating with MRG, Nicole spent many years providing employment counsel to clients to enable growth while helping them assess and diminish risk. She has worked with a broad range of businesses and agencies, from Fortune 500 companies, healthcare, emerging nonprofits, and the public sector. In addition to handling internal and external investigations, she has litigated claims in state and federal court.
She is a member of the California Bar, Marin County Bar, Association of Workplace Investigators, and Society for Human Resources Management. She obtained her J.D. from UC Law San Francisco (formerly UC Hastings College of the Law) and completed her undergraduate education at Santa Clara University. #17..
- 901 -
Main Office
P. O. Box 561
Wilton, CA 95693
(866) 774-3222
Visit us at: www.Solutions-MRG.com
Sacramento Area
Bay Area
Los Angeles Area
William Litt – Workplace Investigations
MUNICIPAL RESOURCE GROUP, LLC
Telephone: (831) 222-3942
[email protected]
Bill Litt, AWI-CH, is an experienced workplace investigator dedicated to providing impartial and timely services for client agencies. Admitted to practice law in 1993, Bill has extensive litigation experience, including federal and state trials, writs, and appeals. Prior to affiliating with MRG, he spent over sixteen years handling litigation and employment matters as a Deputy County Counsel for Monterey County. He has considerable experience advising on public sector employment issues, such as the rights of government employees generally, the relevance of applicable memoranda of understanding, and the Public Safety Officers’ Procedural Bill of Rights Act (POBRA).
In private practice from 2002-2006, Bill represented plaintiffs in employment, consumer, and civil rights litigation. The experience of having represented both employees and employers in workplace disputes provides Bill with an unusual perspective into employee-employer relationships and the wide range of scenarios that may play out in the workplace.
His workplace investigation practice began in the mid-1990s when he was hired to join the neutral, court-appointed, Office of the Civil Rights Monitor for Denny’s Restaurants. There he assisted with recruiting and training investigators and analyzing investigation reports. Later, while with the Monterey County Counsel’s Office, Bill occasionally served as the County’s liaison with external workplace investigators. In addition, he presented and helped develop training on topics such as the prevention of discrimination, harassment, and retaliation in conjunction with the County’s Civil Rights Office. Bill also routinely functioned as an informal investigator in connection with litigation he handled, interviewing countless witnesses and reviewing and synthesizing myriad documents in the process.
Bill earned a Bachelor of Arts degree with distinction from Cornell University and a Juris Doctor degree from the UCLA School of Law. He has attended various ADR programs, including “Masters of Mediation,” and completed the Monterey County Superior Court’s training for temporary judges. He also served on the Monterey County Superior Court Joint Committee on the Elimination of Bias. Bill is a member of the Association of Workplace Investigators and is an AWI certificate-holder. #17..
- 902 -
Attachment B
#17..
- 903 -
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
INSURER(S) AFFORDING COVERAGE
INSURER F :
INSURER E :
INSURER D :
INSURER C :
INSURER B :
INSURER A : NAIC #
NAME: CONTACT
(A/C, No): FAX
E-MAIL ADDRESS:
PRODUCER
(A/C, No, Ext): PHONE
INSURED
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
OTHER:
(Per accident)
(Ea accident)
$
$
N / A
SUBR WVDADDL
INSD
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $
$
$
$ PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person) COMBINED SINGLE LIMIT
AUTOS ONLY
AUTOS ONLY AUTOS NON-OWNED OWNED SCHEDULED
ANY AUTO
AUTOMOBILE LIABILITY
Y / N WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED?
(Mandatory in NH) DESCRIPTION OF OPERATIONS below
If yes, describe under
ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEEE.L. EACH ACCIDENT EROTH- STATUTE PER
(MM/DD/YYYY) LIMITS POLICY EXP(MM/DD/YYYY) POLICY EFFLTR TYPE OF INSURANCE POLICY NUMBER INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
EXCESS LIAB
UMBRELLA LIAB EACH OCCURRENCE $ AGGREGATE $
$
OCCUR
CLAIMS-MADE DED RETENTION $
PRODUCTS - COMP/OP AGG $ GENERAL AGGREGATE $ PERSONAL & ADV INJURY $ MED EXP (Any one person) $
EACH OCCURRENCE $ DAMAGE TO RENTED
PREMISES (Ea occurrence) $ COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- JECT LOC
CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY)
CANCELLATION
AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2015 ACORD CORPORATION. All rights reserved.
CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED
AUTOS ONLY
2/5/2024
AssuredPartners Design Professionals Insurance Services, LLC 3697 Mt. Diablo Blvd Suite 230
Lafayette CA 94549
Shannon Campos 714-824-3910 [email protected] License#: 6003745 Sentinel Insurance Company 11000 MUNIRES-01 Underwriters at Lloyd's, London 32727 Municipal Resource Group, LLC (MRG)
PO BOX 561
Wilton CA 95693
Hartford Casualty Insurance Company 29424 At-Bay Specialty Insurance Company 19607 133240592 A X 2,000,000 X 1,000,000 X Contractual Liab 10,000 Included 2,000,000 4,000,000 X Y Y 57SBAUZ2244 2/2/2024 2/2/2025
4,000,000
A 2,000,000 X XY Y 57SBAUZ2244 2/2/2024 2/2/2025
C Y 57WECAB10L8 2/1/2024 2/1/2025
X
1,000,000 1,000,000 1,000,000
B
D
Professional Liability
Cyber Liability
MPL505106424
AB661825003
2/5/2024
2/5/2024
2/5/2025
2/5/2025
Per Claim
Aggregate Limit
Per Claim/$2,000,000
$2,000,000
$2,000,000
Agg Lmt/$2,000,000
Insured owns no company vehicles; therefore, hired/non-owned auto is the maximum coverage that applies. Professional services includes Management consulting and strategic planning services, and workplace investigations. An Insured extends to a natural person performing services or duties within the scope of their written agreement with an Insured Entity and for whom the Insured Entity is legally liable, but only while acting within the scope of such person’s duties performed on behalf of the Insured Entity.
RE: All Operations of the Named Insured The City of Modesto, its officers, officials, employees, agents and volunteers are named as Additional Insureds as respects General and Auto Liability as required per written contract. General Liability is Primary/Non-Contributory per policy form wording. 30 Day Notice of Cancellation
City of Modesto
1010 10th Street
Modesto CA 95354
#17..
- 904 -
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
Form SS 04 38 09 09 Page 1 of 3
© 2009, The Hartford
(Includes copyrighted material of ISO Properties, Inc., with its permission)
HIRED AUTO AND NON-OWNED AUTO
This endorsement modifies insurance provided under the following:
BUSINESS LIABILITY COVERAGE FORM
This coverage is subject to all provisions in the
BUSINESS LIABILITY COVERAGE FORM not
expressly modified herein:
A. Amended Coverage:
Coverage is extended to "bodily injury" and
"property damage" arising out of the use of a "hired
auto" and "non-owned auto".
B. Paragraph B. EXCLUSIONS is amended as
follows:
1. Exclusion g. Aircraft, Auto or Watercraft does
not apply to a "hired auto" or a "non-owned
auto".
2. Exclusion e. Employers Liability does not
apply to "bodily injury" to domestic "employees"
not entitled to workers’ compensation benefits
or to liability assumed by the "insured" under an
"insured contract".
3. Exclusion f. Pollution is replaced by the
following:
"Bodily injury" or "property damage" arising out
of the actual, alleged or threatened discharge,
dispersal, seepage, migration, release or
escape of "pollutants":
a. That are, or that are contained in any
property that is:
(1) Being transported or towed by, handled,
or handled for movement into, onto or
from, the covered "auto";
(2) Otherwise in the course of transit by or
on behalf of the "insured"; or
(3) Being stored, disposed of, treated or
processed in or upon the covered
"auto".
b. Before the "pollutants" or any property in
which the "pollutants" are contained are
moved from the place where they are
accepted by the "insured" for movement into
or onto the covered "auto"; or
c. After the "pollutants" or any property in
which the "pollutants" are contained are
moved from the covered "auto" to the place
where they are finally delivered, disposed of
or abandoned by the "insured".
Paragraph a. above does not apply to fuels,
lubricants, fluids, exhaust gases or other
similar "pollutants" that are needed for or
result from the normal electrical, hydraulic
or mechanical functioning of the covered
"auto" or its parts, if:
(1) The "pollutants" escape, seep, migrate,
or are discharged or released directly
from an "auto" part designed by its
manufacturer to hold, store, receive, or
dispose of such "pollutants"; and
(2) The "bodily injury" and "property
damage" does not arise out of the
operation of any equipment listed in
paragraphs 15.b. and 15.c. of the
definition of "mobile equipment".
Paragraphs b. and c. above do not apply to
"accidents" that occur away from premises
owned by or rented to an "insured" with
respect to "pollutants" not in or upon a
covered "auto" if:
(1) The "pollutants" or any property in
which the "pollutants" are contained are
upset, overturned or damaged as a
result of the maintenance or use of a
covered "auto"; and
Policy #:
57SBAUZ2244
#17..
- 905 -
(2) The discharge, dispersal, seepage,
migration, release or escape of the
"pollutants" is caused directly by such
upset, overturn or damage as a result of
the maintenance or use of a covered
"auto".
4. With respect to this coverage, the following
additional exclusions apply:
a. Fellow employee
Coverage does not apply to "bodily injury" to
any fellow "employee" of the "insured"
arising out of the operation of an "auto"
owned by the "insured" in the course of the
fellow "employee’s" employment.
b. Care, custody or control
Coverage does not apply to "property
damage" involving property owned or
transported by the "insured" or in the
"insured’s" care, custody or control.
C. With respect to "hired auto" and "non-owned auto"
coverage, Paragraph C. WHO IS AN INSURED is
deleted and replaced by the following:
The following are "insureds":
a. You.
b. Your "employee" while using with your
permission:
(1) An "auto" you hire or borrow; or
(2) An "auto" you don’t own, hire or borrow in
your business or personal affairs; or
(3) An "auto" hired or rented by your
"employee" on your behalf and at your
direction.
c. Anyone else while using a "hired auto" or "nonowned auto" with your permission except:
(1) The owner or anyone else from whom you
hire or borrow an "auto".
(2) Someone using an auto while he or she is
working in a business of selling, servicing,
repairing, parking or storing "autos" unless
that business is yours.
(3) Anyone other than your "employees",
partners (if you are a partnership), members
(if you are a limited liability company), or a
lessee or borrower or any of their
"employees", while moving property to or
from an "auto".
(4) A partner (if you are a partnership), or a
member (if you are a limited liability
company) for an "auto" owned by him or her
or a member of his or her household.
d. Anyone liable for the conduct of an "insured"
described above but only to the extent of that
liability.
D. With respect to the operation of a "hired auto" and
"non-owned auto", the following additional
conditions apply:
1. OTHER INSURANCE
a. Except for any liability assumed under an
"insured contract" the insurance provided by
this Coverage Form is excess over any
other collectible insurance.
However, if your business is the selling,
servicing, repairing, parking or storage of
"autos", the insurance provided by this
endorsement is primary when covered
"bodily injury" or "property damage" arises
out of the operation of a customer’s "auto"
by you or your "employee".
b. When this Coverage Form and any other
Coverage Form or policy covers on the
same basis, either excess or primary, we
will pay only our share. Our share is the
proportion that the Limit of Insurance of our
Coverage Form bears to the total of the
limits of all the Coverage Forms and policies
covering on the same basis.
2. TWO OR MORE COVERAGE FORMS OR
POLICIES ISSUED BY US
If the Coverage Form and any other Coverage
Form or policy issued to you by us or any
company affiliated with us apply to the same
"accident", the aggregate maximum Limit of
Insurance under all the Coverage Forms or
policies shall not exceed the highest applicable
Limit of Insurance under any one Coverage
Form or policy. This condition does not apply to
any Coverage Form or policy issued by us or an
affiliated company specifically to apply as
excess insurance over this Coverage Form.
E. The following definitions are added:
G. LIABILITY AND MEDICAL EXPENSES
DEFINITIONS:
1. "Hired auto" means any "auto" you lease,
hire, rent or borrow. This does not include
any auto you lease, hire, rent or borrow
from any of your "employees", your partners
(if you are a partnership), members (if you
are a limited liability company),
#17..
- 906 -
Form SS 04 38 09 09 Page 3 of 3
or your "executive officers" or members of
their households.
This does not include a long-term leased
"auto" that you insure as an owned "auto"
under any other auto liability insurance
policy or a temporary substitute for an
"auto" you own that is out of service
because of its breakdown, repair, servicing
or destruction.
2. "Non-owned auto " means any "auto" you
do not own, lease, hire, rent or borrow
which is used in connection with your
business. This includes:
a. "Autos" owned by your "employees" your
partners (if you are a partnership),
members (if you are a limited liability
company), or your "executive officers",
or members of their households, but
only while used in your business or your
personal affairs.
b. Customer’s "auto" that is in your care,
custody or control for service.
#17..
- 907 -
QUICK REFERENCE
BUSINESS LIABILITY COVERAGE FORM
READ YOUR POLICY CAREFULLY
BUSINESS LIABILITY COVERAGE FORM Beginning on Page
A. COVERAGES 1
Business Liability 1
Medical Expenses 2
Coverage Extension - Supplementary Payments 2
B. EXCLUSIONS 3
C. WHO IS AN INSURED 10
D. LIABILITY AND MEDICAL EXPENSES
LIMITS OF INSURANCE 14
E. LIABILITY AND MEDICAL EXPENSES GENERAL CONDITIONS 15
1. Bankruptcy 15
2. Duties In The Event Of Occurrence, Offense, Claim Or Suit 15
3. Financial Responsibility Laws 16
4. Legal Action Against Us 16
5. Separation Of Insureds 16
6. Representations 16
7. Other Insurance 16
8. Transfer Of Rights Of Recovery Against Others To Us 17 F. OPTIONAL ADDITIONAL INSURED COVERAGES 18
Additional Insureds 18
G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS 20
Form SS 00 08 04 05
57SBAUZ2244
#17..
- 908 -
ABCDEFGHIJ
BUSINESS LIABILITY COVERAGE FORM
Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered.
Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations. The words "we", "us" and "our" refer to the stock insurance company member of The Hartford providing this insurance.
The word "insured" means any person or organization qualifying as such under Section . - Who Is An Insured. C Other words and phrases that appear in quotation marks have special meaning. Refer to Section . - Liability And G Medical Expenses Definitions.
A. COVERAGES (a) The "bodily injury" or "property
damage" is caused by an 1. BUSINESS LIABILITY COVERAGE (BODILY "occurrence" that takes place in the INJURY, PROPERTY DAMAGE, PERSONAL "coverage territory"; AND ADVERTISING INJURY) (b) The "bodily injury" or "property Insuring Agreement damage" occurs during the policy a. We will pay those sums that the insured period; and
becomes legally obligated to pay as (c) Prior to the policy period, no insured damages because of "bodily injury", listed under Paragraph of Section 1. "property damage" or "personal and C. – Who Is An Insured and no advertising injury" to which this insurance "employee" authorized by you to give applies. We will have the right and duty to or receive notice of an "occurrence" defend the insured against any "suit" or claim, knew that the "bodily injury" seeking those damages. However, we will or "property damage" had occurred, have no duty to defend the insured against in whole or in part. If such a listed any "suit" seeking damages for "bodily insured or authorized "employee" injury", "property damage" or "personal and knew, prior to the policy period, that advertising injury" to which this insurance the "bodily injury" or "property does not apply. damage" occurred, then any We may, at our discretion, investigate any continuation, change or resumption "occurrence" or offense and settle any claim of such "bodily injury" or "property or "suit" that may result. But: damage" during or after the policy (1) The amount we will pay for damages is period will be deemed to have been D. known prior to the policy period. limited as described in Section - Liability And Medical Expenses Limits (2) To "personal and advertising injury" Of Insurance; and caused by an offense arising out of your business, but only if the offense was (2) Our right and duty to defend ends when we have used up the applicable limit of committed in the "coverage territory" during the policy period. insurance in the payment of judgments, settlements or medical expenses to which c. "Bodily injury" or "property damage" will be this insurance applies. deemed to have been known to have No other obligation or liability to pay sums or occurred at the earliest time when any insured listed under Paragraph of Section 1. perform acts or services is covered unless explicitly provided for under Coverage C. – Who Is An Insured or any "employee" Extension - Supplementary Payments. authorized by you to give or receive notice of an "occurrence" or claim: b. This insurance applies: (1) Reports all, or any part, of the "bodily (1) To "bodily injury" and "property injury" or "property damage" to us or damage" only if: any other insurer; Form SS 00 08 04 05 Page 1 of 24
© 2005, The Hartford
#17..
- 909 -
BUSINESS LIABILITY COVERAGE FORM
(2) Receives a written or verbal demand or b. We will make these payments regardless of claim for damages because of the "bodily fault. These payments will not exceed the injury" or "property damage"; or applicable limit of insurance. We will pay reasonable expenses for: (3) Becomes aware by any other means that "bodily injury" or "property damage" has (1) First aid administered at the time of an occurred or has begun to occur. accident;
d. Damages because of "bodily injury" include (2) Necessary medical, surgical, x-ray and damages claimed by any person or dental services, including prosthetic organization for care, loss of services or devices; and death resulting at any time from the "bodily (3) Necessary ambulance, hospital, injury". professional nursing and funeral
e. Incidental Medical Malpractice services.
(1) "Bodily injury" arising out of the 3. COVERAGE EXTENSION - rendering of or failure to render SUPPLEMENTARY PAYMENTS professional health care services as a a. We will pay, with respect to any claim or physician, dentist, nurse, emergency "suit" we investigate or settle, or any "suit" medical technician or paramedic shall against an insured we defend: be deemed to be caused by an (1) All expenses we incur. "occurrence", but only if:
(2) Up to $1,000 for the cost of bail bonds (a) The physician, dentist, nurse, required because of accidents or traffic emergency medical technician or law violations arising out of the use of paramedic is employed by you to any vehicle to which Business Liability provide such services; and Coverage for "bodily injury" applies. We (b) You are not engaged in the do not have to furnish these bonds. business or occupation of providing (3) The cost of appeal bonds or bonds to such services. release attachments, but only for bond (2) For the purpose of determining the amounts within the applicable limit of limits of insurance for incidental medical insurance. We do not have to furnish malpractice, any act or omission these bonds. together with all related acts or (4) All reasonable expenses incurred by the omissions in the furnishing of these insured at our request to assist us in the services to any one person will be investigation or defense of the claim or considered one "occurrence". "suit", including actual loss of earnings 2. MEDICAL EXPENSES up to $500 a day because of time off Insuring Agreement from work.
a. We will pay medical expenses as described (5) All costs taxed against the insured in below for "bodily injury" caused by an the "suit".
accident: (6) Prejudgment interest awarded against
(1) On premises you own or rent; the insured on that part of the judgment we pay. If we make an offer to pay the (2) On ways next to premises you own or applicable limit of insurance, we will not rent; or
pay any prejudgment interest based on (3) Because of your operations; that period of time after the offer. provided that: (7) All interest on the full amount of any (1) The accident takes place in the judgment that accrues after entry of the "coverage territory" and during the judgment and before we have paid, policy period; offered to pay, or deposited in court the (2) The expenses are incurred and reported part of the judgment that is within the to us within three years of the date of applicable limit of insurance. the accident; and Any amounts paid under through (1) (7) (3) The injured person submits to above will not reduce the limits of insurance. examination, at our expense, by
physicians of our choice as often as we
reasonably require.
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BUSINESS LIABILITY COVERAGE FORM
b. If we defend an insured against a "suit" So long as the above conditions are met, and an indemnitee of the insured is also attorneys' fees incurred by us in the named as a party to the "suit", we will defense of that indemnitee, necessary defend that indemnitee if all of the litigation expenses incurred by us and following conditions are met: necessary litigation expenses incurred by the indemnitee at our request will be (1) The "suit" against the indemnitee paid as Supplementary Payments. seeks damages for which the insured has assumed the liability of the Notwithstanding the provisions of indemnitee in a contract or agreement Paragraph of Section – 1.b.(b) B. that is an "insured contract"; Exclusions, such payments will not be deemed to be damages for "bodily (2) This insurance applies to such liability injury" and "property damage" and will assumed by the insured; not reduce the Limits of Insurance. (3) The obligation to defend, or the cost of Our obligation to defend an insured's the defense of, that indemnitee, has indemnitee and to pay for attorneys' fees also been assumed by the insured in and necessary litigation expenses as the same "insured contract"; Supplementary Payments ends when: (4) The allegations in the "suit" and the (1) We have used up the applicable limit information we know about the of insurance in the payment of "occurrence" are such that no conflict judgments or settlements; or appears to exist between the interests of the insured and the interest of the (2) The conditions set forth above, or the indemnitee; terms of the agreement described in
Paragraph above, are no longer met. (6) (5) The indemnitee and the insured ask us to conduct and control the defense B. EXCLUSIONS
of that indemnitee against such "suit" 1. Applicable To Business Liability Coverage and agree that we can assign the same counsel to defend the insured This insurance does not apply to:
and the indemnitee; and a. Expected Or Intended Injury
(6) The indemnitee: (1) "Bodily injury" or "property damage" expected or intended from the (a) Agrees in writing to:
standpoint of the insured. This (i) Cooperate with us in the exclusion does not apply to "bodily investigation, settlement or injury" or "property damage" resulting defense of the "suit"; from the use of reasonable force to (ii) Immediately send us copies of protect persons or property; or any demands, notices, (2) "Personal and advertising injury" arising summonses or legal papers out of an offense committed by, at the received in connection with direction of or with the consent or the "suit"; acquiescence of the insured with the (iii) Notify any other insurer whose expectation of inflicting "personal and coverage is available to the advertising injury".
indemnitee; and b. Contractual Liability
(iv) Cooperate with us with (1) "Bodily injury" or "property damage"; or respect to coordinating other applicable insurance available (2) "Personal and advertising injury" to the indemnitee; and for which the insured is obligated to pay damages by reason of the assumption of (b) Provides us with written authorization to: liability in a contract or agreement.
This exclusion does not apply to liability (i) Obtain records and other for damages because of: information related to the
"suit"; and (a) "Bodily injury", "property damage" or
"personal and advertising injury" that (ii) Conduct and control the defense of the indemnitee in the insured would have in the such "suit". absence of the contract or
agreement; or
Form SS 00 08 04 05 Page 3 of 24
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BUSINESS LIABILITY COVERAGE FORM
(b) "Bodily injury" or "property damage" (b) Performing duties related to the assumed in a contract or agreement conduct of the insured’s business, or that is an "insured contract", (2) The spouse, child, parent, brother or provided the "bodily injury" or sister of that "employee" as a "property damage" occurs consequence of above. (1)
subsequent to the execution of the This exclusion applies: contract or agreement. Solely for (1) Whether the insured may be liable as the purpose of liability assumed in an employer or in any other capacity; an "insured contract", reasonable and attorneys' fees and necessary
litigation expenses incurred by or for (2) To any obligation to share damages a party other than an insured are with or repay someone else who must deemed to be damages because of pay damages because of the injury. "bodily injury" or "property damage" This exclusion does not apply to liability provided: assumed by the insured under an "insured (i) Liability to such party for, or for contract".
the cost of, that party’s defense f. Pollution
has also been assumed in the
(1) "Bodily injury", "property damage" or same "insured contract", and "personal and advertising injury" (ii) Such attorneys' fees and arising out of the actual, alleged or litigation expenses are for threatened discharge, dispersal, defense of that party against a seepage, migration, release or escape civil or alternative dispute of "pollutants": resolution proceeding in which (a) At or from any premises, site or damages to which this location which is or was at any insurance applies are alleged. time owned or occupied by, or c. Liquor Liability rented or loaned to any insured. "Bodily injury" or "property damage" for However, this subparagraph does which any insured may be held liable by not apply to:
reason of: (i) "Bodily injury" if sustained within
(1) Causing or contributing to the a building and caused by intoxication of any person; smoke, fumes, vapor or soot (2) The furnishing of alcoholic beverages to produced by or originating from equipment that is used to heat, a person under the legal drinking age or cool or dehumidify the building, under the influence of alcohol; or or equipment that is used to (3) Any statute, ordinance or regulation heat water for personal use, by relating to the sale, gift, distribution or the building's occupants or their use of alcoholic beverages. guests; This exclusion applies only if you are in the (ii) "Bodily injury" or "property business of manufacturing, distributing, damage" for which you may be selling, serving or furnishing alcoholic held liable, if you are a beverages. contractor and the owner or d. Workers' Compensation And Similar lessee of such premises, site or Laws location has been added to your Any obligation of the insured under a policy as an additional insured workers' compensation, disability benefits with respect to your ongoing or unemployment compensation law or operations performed for that any similar law. additional insured at that
e. Employer’s Liability premises, site or location and
such premises, site or location "Bodily injury" to:
is not and never was owned or (1) An "employee" of the insured arising occupied by, or rented or out of and in the course of: loaned to, any insured, other (a) Employment by the insured; or than that additional insured; or
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BUSINESS LIABILITY COVERAGE FORM
(iii) "Bodily injury" or "property released as part of the damage" arising out of heat, operations being performed smoke or fumes from a by such insured, contractor or
"hostile fire"; subcontractor;
(b) At or from any premises, site or (ii) "Bodily injury" or "property location which is or was at any damage" sustained within a time used by or for any insured or building and caused by the others for the handling, storage, release of gases, fumes or disposal, processing or treatment vapors from materials brought of waste; into that building in connection
with operations being performed (c) Which are or were at any time by you or on your behalf by a transported, handled, stored, contractor or subcontractor; or treated, disposed of, or processed as waste by or for: (iii) "Bodily injury" or "property
damage" arising out of heat, (i) Any insured; or smoke or fumes from a (ii) Any person or organization for "hostile fire"; or whom you may be legally (e) At or from any premises, site or responsible; location on which any insured or any (d) At or from any premises, site or contractors or subcontractors location on which any insured or working directly or indirectly on any any contractors or subcontractors insured’s behalf are performing working directly or indirectly on operations if the operations are to any insured's behalf are test for, monitor, clean up, remove, performing operations if the contain, treat, detoxify or neutralize, "pollutants" are brought on or to or in any way respond to, or assess the premises, site or location in the effects of, "pollutants". connection with such operations (2) Any loss, cost or expense arising out by such insured, contractor or of any: subcontractor. However, this subparagraph does not apply to: (a) Request, demand, order or statutory or regulatory requirement that any (i) "Bodily injury" or "property insured or others test for, monitor, damage" arising out of the clean up, remove, contain, treat, escape of fuels, lubricants or detoxify or neutralize, or in any way other operating fluids which are respond to, or assess the effects of, needed to perform the normal "pollutants"; or electrical, hydraulic or mechanical functions (b) Claim or suit by or on behalf of a necessary for the operation of governmental authority for "mobile equipment" or its parts, damages because of testing for, if such fuels, lubricants or other monitoring, cleaning up, removing, operating fluids escape from a containing, treating, detoxifying or vehicle part designed to hold, neutralizing, or in any way store or receive them. This responding to, or assessing the exception does not apply if the effects of, "pollutants". "bodily injury" or "property However, this paragraph does not damage" arises out of the apply to liability for damages because intentional discharge, dispersal of "property damage" that the insured or release of the fuels, would have in the absence of such lubricants or other operating request, demand, order or statutory or fluids, or if such fuels, regulatory requirement, or such claim lubricants or other operating or "suit" by or on behalf of a fluids are brought on or to the governmental authority. premises, site or location with the intent that they be
discharged, dispersed or
Form SS 00 08 04 05 Page 5 of 24
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BUSINESS LIABILITY COVERAGE FORM
g. Aircraft, Auto Or Watercraft (2) The use of "mobile equipment" in, or while in practice or preparation for, a "Bodily injury" or "property damage" arising prearranged racing, speed or out of the ownership, maintenance, use or demolition contest or in any stunting entrustment to others of any aircraft, "auto" activity. or watercraft owned or operated by or rented or loaned to any insured. Use includes i. War
operation and "loading or unloading". "Bodily injury", "property damage" or This exclusion applies even if the claims "personal and advertising injury", however against any insured allege negligence or caused, arising, directly or indirectly, out of:
other wrongdoing in the supervision, hiring, (1) War, including undeclared or civil war; employment, training or monitoring of others (2) Warlike action by a military force, by that insured, if the "occurrence" which including action in hindering or caused the "bodily injury" or "property defending against an actual or damage" involved the ownership, expected attack, by any government, maintenance, use or entrustment to others of sovereign or other authority using any aircraft, "auto" or watercraft that is military personnel or other agents; or owned or operated by or rented or loaned to any insured. (3) Insurrection, rebellion, revolution,
usurped power, or action taken by This exclusion does not apply to: governmental authority in hindering or (1) A watercraft while ashore on premises defending against any of these. you own or rent; j. Professional Services
(2) A watercraft you do not own that is: "Bodily injury", "property damage" or (a) Less than 51 feet long; and "personal and advertising injury" arising (b) Not being used to carry persons out of the rendering of or failure to render any professional service. This includes for a charge;
but is not limited to: (3) Parking an "auto" on, or on the ways next to, premises you own or rent, (1) Legal, accounting or advertising provided the "auto" is not owned by or services;
rented or loaned to you or the insured; (2) Preparing, approving, or failing to (4) Liability assumed under any "insured prepare or approve maps, shop contract" for the ownership, drawings, opinions, reports, surveys, maintenance or use of aircraft or field orders, change orders, designs or watercraft; drawings and specifications;
(5) "Bodily injury" or "property damage" (3) Supervisory, inspection, architectural arising out of the operation of any of or engineering activities; the equipment listed in Paragraph f.(2) (4) Medical, surgical, dental, x-ray or or of the definition of "mobile f.(3) nursing services treatment, advice or equipment"; or instruction;
(6) An aircraft that is not owned by any (5) Any health or therapeutic service insured and is hired, chartered or loaned treatment, advice or instruction; with a paid crew. However, this (6) Any service, treatment, advice or exception does not apply if the insured instruction for the purpose of has any other insurance for such "bodily appearance or skin enhancement, hair injury" or "property damage", whether removal or replacement or personal the other insurance is primary, excess, grooming; contingent or on any other basis. (7) Optical or hearing aid services h. Mobile Equipment including the prescribing, preparation, "Bodily injury" or "property damage" fitting, demonstration or distribution of arising out of: ophthalmic lenses and similar
(1) The transportation of "mobile equipment" products or hearing aid devices; by an "auto" owned or operated by or
rented or loaned to any insured; or
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BUSINESS LIABILITY COVERAGE FORM
(8) Optometry or optometric services Paragraphs , and of this (1) (3) (4) including but not limited to examination exclusion do not apply to "property of the eyes and the prescribing, damage" (other than damage by fire) to preparation, fitting,demonstration or premises, including the contents of such distribution of ophthalmic lenses and premises, rented to you for a period of 7 or similar products; fewer consecutive days. A separate Limit of Insurance applies to Damage To (9) Any: Premises Rented To You as described in (a) Body piercing (not including ear Section - Limits Of Insurance. D. piercing); Paragraph of this exclusion does not (2) (b) Tattooing, including but not limited apply if the premises are "your work" and to the insertion of pigments into or were never occupied, rented or held for under the skin; and rental by you. (c) Similar services; Paragraphs and of this exclusion do (3) (4) (10) Services in the practice of pharmacy; not apply to the use of elevators. and Paragraphs , , and of this (3) (4) (5) (6)
(11) Computer consulting, design or exclusion do not apply to liability assumed programming services, including web under a sidetrack agreement. site design. Paragraphs and of this exclusion do (3) (4) Paragraphs and of this exclusion do (4) (5) not apply to "property damage" to not apply to the Incidental Medical borrowed equipment while not being used Malpractice coverage afforded under to perform operations at a job site.
Paragraph in Section - Coverages. 1.e. A. Paragraph of this exclusion does not (6) k. Damage To Property apply to "property damage" included in the "products-completed operations hazard". "Property damage" to:
l. Damage To Your Product (1) Property you own, rent or occupy, including any costs or expenses "Property damage" to "your product" incurred by you, or any other person, arising out of it or any part of it. organization or entity, for repair, m. Damage To Your Work replacement, enhancement, "Property damage" to "your work" arising restoration or maintenance of such out of it or any part of it and included in the property for any reason, including "products-completed operations hazard". prevention of injury to a person or damage to another's property; This exclusion does not apply if the damaged work or the work out of which (2) Premises you sell, give away or the damage arises was performed on your abandon, if the "property damage" arises behalf by a subcontractor. out of any part of those premises; n. Damage To Impaired Property Or (3) Property loaned to you; Property Not Physically Injured (4) Personal property in the care, custody "Property damage" to "impaired property" or control of the insured; or property that has not been physically (5) That particular part of real property on injured, arising out of: which you or any contractors or (1) A defect, deficiency, inadequacy or subcontractors working directly or dangerous condition in "your product" indirectly on your behalf are performing or "your work"; or operations, if the "property damage" arises out of those operations; or (2) A delay or failure by you or anyone acting on your behalf to perform a (6) That particular part of any property contract or agreement in accordance that must be restored, repaired or with its terms. replaced because "your work" was incorrectly performed on it. This exclusion does not apply to the loss of use of other property arising out of
sudden and accidental physical injury to
"your product" or "your work" after it has
been put to its intended use.
Form SS 00 08 04 05 Page 7 of 24
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BUSINESS LIABILITY COVERAGE FORM
o. Recall Of Products, Work Or Impaired (c) Title of any literary or artistic work; Property (8) Arising out of an offense committed by
Damages claimed for any loss, cost or an insured whose business is:
expense incurred by you or others for the (a) Advertising, broadcasting, loss of use, withdrawal, recall, inspection, publishing or telecasting; repair, replacement, adjustment, removal (b) Designing or determining content or disposal of: of web sites for others; or (1) "Your product"; (c) An Internet search, access,
(2) "Your work"; or content or service provider.
(3) "Impaired property"; However, this exclusion does not if such product, work or property is apply to Paragraphs , and a. b. c. withdrawn or recalled from the market or under the definition of "personal and from use by any person or organization advertising injury" in Section – G. because of a known or suspected defect, Liability And Medical Expenses deficiency, inadequacy or dangerous Definitions.
condition in it. For the purposes of this exclusion,
p. Personal And Advertising Injury placing an "advertisement" for or linking to others on your web site, by "Personal and advertising injury":
itself, is not considered the business (1) Arising out of oral, written or electronic of advertising, broadcasting, publication of material, if done by or at publishing or telecasting; the direction of the insured with (9) Arising out of an electronic chat room knowledge of its falsity; or bulletin board the insured hosts, (2) Arising out of oral, written or electronic owns, or over which the insured publication of material whose first exercises control; publication took place before the beginning of the policy period; (10) Arising out of the unauthorized use of another's name or product in your e-mail (3) Arising out of a criminal act committed address, domain name or metatags, or by or at the direction of the insured; any other similar tactics to mislead (4) Arising out of any breach of contract, another's potential customers; except an implied contract to use (11) Arising out of the violation of a another’s "advertising idea" in your person's right of privacy created by "advertisement"; any state or federal act. (5) Arising out of the failure of goods, However, this exclusion does not products or services to conform with apply to liability for damages that the any statement of quality or insured would have in the absence of performance made in your such state or federal act; "advertisement"; (12) Arising out of: (6) Arising out of the wrong description of (a) An "advertisement" for others on the price of goods, products or services; your web site; (7) Arising out of any violation of any (b) Placing a link to a web site of intellectual property rights such as others on your web site; copyright, patent, trademark, trade name, trade secret, service mark or (c) Content from a web site of others other designation of origin or displayed within a frame or border authenticity. on your web site. Content includes
However, this exclusion does not information, code, sounds, text, apply to infringement, in your graphics or images; or
"advertisement", of (d) Computer code, software or
programming used to enable: (a) Copyright;
(i) Your web site; or (b) Slogan, unless the slogan is also a trademark, trade name, service (ii) The presentation or functionality mark or other designation of origin of an "advertisement" or other or authenticity; or content on your web site;
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BUSINESS LIABILITY COVERAGE FORM
(13) Arising out of a violation of any anti- (a) May be awarded or incurred by trust law; reason of any claim or suit
alleging actual or threatened injury (14) Arising out of the fluctuation in price or or damage of any nature or kind to value of any stocks, bonds or other persons or property which would securities; or not have occurred in whole or in (15) Arising out of discrimination or part but for the "asbestos hazard"; humiliation committed by or at the (b) Arise out of any request, demand, direction of any "executive officer", order or statutory or regulatory director, stockholder, partner or member of the insured. requirement that any insured or
others test for, monitor, clean up, q. Electronic Data remove, encapsulate, contain, Damages arising out of the loss of, loss of treat, detoxify or neutralize or in use of, damage to, corruption of, inability any way respond to or assess the to access, or inability to manipulate effects of an "asbestos hazard"; or "electronic data". (c) Arise out of any claim or suit for r. Employment-Related Practices damages because of testing for, monitoring, cleaning up, removing, "Bodily injury" or "personal and advertising encapsulating, containing, treating, injury" to:
detoxifying or neutralizing or in any (1) A person arising out of any: way responding to or assessing the (a) Refusal to employ that person; effects of an "asbestos hazard". (b) Termination of that person's t. Violation Of Statutes That Govern Eemployment; or Mails, Fax, Phone Calls Or Other (c) Employment-related practices, Methods Of Sending Material Or policies, acts or omissions, such as Information
coercion, demotion, evaluation, "Bodily injury", "property damage", or reassignment, discipline, "personal and advertising injury" arising defamation, harassment, humiliation directly or indirectly out of any action or or discrimination directed at that omission that violates or is alleged to person; or violate:
(2) The spouse, child, parent, brother or (1) The Telephone Consumer Protection sister of that person as a Act (TCPA), including any amendment consequence of "bodily injury" or of or addition to such law; "personal and advertising injury" to the (2) The CAN-SPAM Act of 2003, including person at whom any of the any amendment of or addition to such employment-related practices law; or described in Paragraphs , , or (a) (b) (c) above is directed. (3) Any statute, ordinance or regulation, other than the TCPA or CAN-SPAM Act This exclusion applies: of 2003, that prohibits or limits the (1) Whether the insured may be liable as sending, transmitting, communicating or an employer or in any other capacity; distribution of material or information. and Damage To Premises Rented To You –
(2) To any obligation to share damages Exception For Damage By Fire, Lightning with or repay someone else who must or Explosion
pay damages because of the injury. Exclusions through and through do c. h. k. o. s. Asbestos not apply to damage by fire, lightning or
(1) "Bodily injury", "property damage" or explosion to premises rented to you or "personal and advertising injury" temporarily occupied by you with permission of arising out of the "asbestos hazard". the owner. A separate Limit of Insurance applies to this coverage as described in (2) Any damages, judgments, settlements, Section - Liability And Medical Expenses D. loss, costs or expenses that: Limits Of Insurance.
Form SS 00 08 04 05 Page 9 of 24
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BUSINESS LIABILITY COVERAGE FORM
2. Applicable To Medical Expenses Coverage e. A trust, you are an insured. Your trustees We will not pay expenses for "bodily injury": are also insureds, but only with respect to their duties as trustees. a. Any Insured
2. Each of the following is also an insured: To any insured, except "volunteer workers". a. Employees And Volunteer Workers b. Hired Person
Your "volunteer workers" only while To a person hired to do work for or on behalf performing duties related to the conduct of of any insured or a tenant of any insured. your business, or your "employees", other c. Injury On Normally Occupied Premises than either your "executive officers" (if you To a person injured on that part of are an organization other than a premises you own or rent that the person partnership, joint venture or limited liability normally occupies. company) or your managers (if you are a d. Workers' Compensation And Similar limited liability company), but only for acts Laws within the scope of their employment by
you or while performing duties related to To a person, whether or not an the conduct of your business. "employee" of any insured, if benefits for However, none of these "employees" or the "bodily injury" are payable or must be provided under a workers' compensation "volunteer workers" are insureds for:
or disability benefits law or a similar law. (1) "Bodily injury" or "personal and e. Athletics Activities advertising injury":
To a person injured while practicing, (a) To you, to your partners or members (if you are a partnership instructing or participating in any physical exercises or games, sports or athletic or joint venture), to your members contests. (if you are a limited liability
company), or to a co-"employee" f. Products-Completed Operations Hazard while in the course of his or her Included with the "products-completed employment or performing duties operations hazard". related to the conduct of your
g. Business Liability Exclusions business, or to your other "volunteer workers" while Excluded under Business Liability Coverage. performing duties related to the C. WHO IS AN INSURED conduct of your business;
1. If you are designated in the Declarations as: (b) To the spouse, child, parent, a. An individual, you and your spouse are brother or sister of that co- "employee" or that "volunteer insureds, but only with respect to the conduct of a business of which you are the worker" as a consequence of Paragraph above; (1)(a) sole owner.
b. A partnership or joint venture, you are an (c) For which there is any obligation to share damages with or repay insured. Your members, your partners, and someone else who must pay their spouses are also insureds, but only with damages because of the injury respect to the conduct of your business. described in Paragraphs or (1)(a) c. A limited liability company, you are an (b) above; or insured. Your members are also insureds, but only with respect to the conduct of your (d) Arising out of his or her providing business. Your managers are insureds, but or failing to provide professional only with respect to their duties as your health care services. managers. If you are not in the business of
d. An organization other than a partnership, providing professional health care services, Paragraph does not apply (d) joint venture or limited liability company, you are an insured. Your "executive officers" and to any nurse, emergency medical directors are insureds, but only with respect technician or paramedic employed by you to provide such services. to their duties as your officers or directors.
Your stockholders are also insureds, but only (2) "Property damage" to property:
with respect to their liability as stockholders. (a) Owned, occupied or used by,
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BUSINESS LIABILITY COVERAGE FORM
(b) Rented to, in the care, custody or b. Coverage under this provision does not control of, or over which physical apply to:
control is being exercised for any (1) "Bodily injury" or "property damage" purpose by you, any of your that occurred; or "employees", "volunteer workers", (2) "Personal and advertising injury" any partner or member (if you are arising out of an offense committed a partnership or joint venture), or any member (if you are a limited before you acquired or formed the liability company). organization.
b. Real Estate Manager 4. Operator Of Mobile Equipment
Any person (other than your "employee" or With respect to "mobile equipment" registered in "volunteer worker"), or any organization your name under any motor vehicle registration while acting as your real estate manager. law, any person is an insured while driving such equipment along a public highway with your c. Temporary Custodians Of Your permission. Any other person or organization Property responsible for the conduct of such person is Any person or organization having proper also an insured, but only with respect to liability temporary custody of your property if you arising out of the operation of the equipment, and die, but only: only if no other insurance of any kind is available (1) With respect to liability arising out of the to that person or organization for this liability. maintenance or use of that property; and However, no person or organization is an insured with respect to: (2) Until your legal representative has been appointed. a. "Bodily injury" to a co-"employee" of the d. Legal Representative If You Die person driving the equipment; or Your legal representative if you die, but b. "Property damage" to property owned by, rented to, in the charge of or occupied by only with respect to duties as such. That you or the employer of any person who is representative will have all your rights and an insured under this provision. duties under this insurance.
5. Operator of Nonowned Watercraft e. Unnamed Subsidiary Any subsidiary and subsidiary thereof, of With respect to watercraft you do not own that is less than 51 feet long and is not being used yours which is a legally incorporated entity to carry persons for a charge, any person is an of which you own a financial interest of more than 50% of the voting stock on the insured while operating such watercraft with your permission. Any other person or effective date of this Coverage Part. organization responsible for the conduct of The insurance afforded herein for any such person is also an insured, but only with subsidiary not shown in the Declarations respect to liability arising out of the operation as a named insured does not apply to of the watercraft, and only if no other injury or damage with respect to which an insurance of any kind is available to that insured under this insurance is also an person or organization for this liability. insured under another policy or would be However, no person or organization is an an insured under such policy but for its insured with respect to: termination or upon the exhaustion of its limits of insurance. a. "Bodily injury" to a co-"employee" of the person operating the watercraft; or 3. Newly Acquired Or Formed Organization Any organization you newly acquire or form, b. "Property damage" to property owned by, rented to, in the charge of or occupied by other than a partnership, joint venture or you or the employer of any person who is limited liability company, and over which you maintain financial interest of more than 50% of an insured under this provision. the voting stock, will qualify as a Named 6. Additional Insureds When Required By Insured if there is no other similar insurance Written Contract, Written Agreement Or available to that organization. However: Permit
a. Coverage under this provision is afforded The person(s) or organization(s) identified in only until the 180th day after you acquire Paragraphs through below are additional a. f. or form the organization or the end of the insureds when you have agreed, in a written policy period, whichever is earlier; and
Form SS 00 08 04 05 Page 11 of 24
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BUSINESS LIABILITY COVERAGE FORM
contract, written agreement or because of a (e) Any failure to make such permit issued by a state or political inspections, adjustments, tests or subdivision, that such person or organization servicing as the vendor has be added as an additional insured on your agreed to make or normally policy, provided the injury or damage occurs undertakes to make in the usual subsequent to the execution of the contract or course of business, in connection agreement, or the issuance of the permit. with the distribution or sale of the products; A person or organization is an additional (f) Demonstration, installation, insured under this provision only for that servicing or repair operations, period of time required by the contract, except such operations performed agreement or permit. at the vendor's premises in However, no such person or organization is an connection with the sale of the additional insured under this provision if such product; person or organization is included as an (g) Products which, after distribution additional insured by an endorsement issued or sale by you, have been labeled by us and made a part of this Coverage Part, or relabeled or used as a including all persons or organizations added container, part or ingredient of any as additional insureds under the specific other thing or substance by or for additional insured coverage grants in Section the vendor; or F. – Optional Additional Insured Coverages. (h) "Bodily injury" or "property a. Vendors
damage" arising out of the sole Any person(s) or organization(s) (referred to negligence of the vendor for its below as vendor), but only with respect to own acts or omissions or those of "bodily injury" or "property damage" arising its employees or anyone else out of "your products" which are distributed acting on its behalf. However, this or sold in the regular course of the vendor's exclusion does not apply to: business and only if this Coverage Part (i) The exceptions contained in provides coverage for "bodily injury" or Subparagraphs or ; or (d) (f) "property damage" included within the "products-completed operations hazard". (ii) Such inspections, adjustments, tests or servicing as the vendor (1) The insurance afforded to the vendor has agreed to make or normally is subject to the following additional undertakes to make in the usual exclusions:
course of business, in This insurance does not apply to: connection with the distribution (a) "Bodily injury" or "property or sale of the products. damage" for which the vendor is (2) This insurance does not apply to any obligated to pay damages by insured person or organization from reason of the assumption of whom you have acquired such products, liability in a contract or agreement. or any ingredient, part or container, This exclusion does not apply to entering into, accompanying or liability for damages that the containing such products. vendor would have in the absence b. Lessors Of Equipment of the contract or agreement;
(1) Any person or organization from (b) Any express warranty whom you lease equipment; but only unauthorized by you; with respect to their liability for "bodily (c) Any physical or chemical change injury", "property damage" or in the product made intentionally "personal and advertising injury" by the vendor; caused, in whole or in part, by your (d) Repackaging, except when maintenance, operation or use of unpacked solely for the purpose of equipment leased to you by such inspection, demonstration, testing, person or organization. or the substitution of parts under
instructions from the manufacturer,
and then repackaged in the
original container;
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BUSINESS LIABILITY COVERAGE FORM
(2) With respect to the insurance afforded e. Permits Issued By State Or Political to these additional insureds, this Subdivisions
insurance does not apply to any (1) Any state or political subdivision, but "occurrence" which takes place after only with respect to operations you cease to lease that equipment. performed by you or on your behalf for c. Lessors Of Land Or Premises which the state or political subdivision has issued a permit. (1) Any person or organization from whom you lease land or premises, but (2) With respect to the insurance afforded only with respect to liability arising out to these additional insureds, this of the ownership, maintenance or use insurance does not apply to:
of that part of the land or premises (a) "Bodily injury", "property damage" leased to you. or "personal and advertising
(2) With respect to the insurance afforded injury" arising out of operations to these additional insureds, this performed for the state or insurance does not apply to: municipality; or
(a) Any "occurrence" which takes (b) "Bodily injury" or "property damage" place after you cease to lease that included within the "productsland or be a tenant in that completed operations hazard". premises; or f. Any Other Party
(b) Structural alterations, new (1) Any other person or organization who construction or demolition is not an insured under Paragraphs a. operations performed by or on through . above, but only with e behalf of such person or respect to liability for "bodily injury", organization. "property damage" or "personal and d. Architects, Engineers Or Surveyors advertising injury" caused, in whole or in part, by your acts or omissions or (1) Any architect, engineer, or surveyor, but the acts or omissions of those acting only with respect to liability for "bodily on your behalf: injury", "property damage" or "personal and advertising injury" caused, in whole (a) In the performance of your or in part, by your acts or omissions or ongoing operations; the acts or omissions of those acting on (b) In connection with your premises your behalf: owned by or rented to you; or (a) In connection with your premises; (c) In connection with "your work" and or included within the "products-
(b) In the performance of your completed operations hazard", but ongoing operations performed by only if
you or on your behalf. (i) The written contract or written (2) With respect to the insurance afforded agreement requires you to to these additional insureds, the provide such coverage to following additional exclusion applies: such additional insured; and This insurance does not apply to (ii) This Coverage Part provides "bodily injury", "property damage" or coverage for "bodily injury" or "personal and advertising injury" "property damage" included arising out of the rendering of or the within the "productsfailure to render any professional completed operations hazard". services by or for you, including: (2) With respect to the insurance afforded (a) The preparing, approving, or to these additional insureds, this failure to prepare or approve, insurance does not apply to:
maps, shop drawings, opinions, "Bodily injury", "property damage" or reports, surveys, field orders, "personal and advertising injury" change orders, designs or arising out of the rendering of, or the drawings and specifications; or failure to render, any professional (b) Supervisory, inspection, architectural, engineering or surveying architectural or engineering services, including:
activities.
Form SS 00 08 04 05 Page 13 of 24
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BUSINESS LIABILITY COVERAGE FORM
(a) The preparing, approving, or This General Aggregate limit does not failure to prepare or approve, apply to "property damage" to premises maps, shop drawings, opinions, while rented to you or temporarily reports, surveys, field orders, occupied by you with permission of the change orders, designs or owner, arising out of fire, lightning or drawings and specifications; or explosion.
(b) Supervisory, inspection, 3. Each Occurrence Limit
architectural or engineering Subject to or above, whichever 2.a. 2.b activities. applies, the most we will pay for the sum of all The limits of insurance that apply to additional damages because of all "bodily injury", insureds are described in Section – Limits D. "property damage" and medical expenses Of Insurance. arising out of any one "occurrence" is the How this insurance applies when other Liability and Medical Expenses Limit shown in the Declarations. insurance is available to an additional insured is described in the Other Insurance Condition The most we will pay for all medical expenses in Section – Liability And Medical Expenses E. because of "bodily injury" sustained by any General Conditions. one person is the Medical Expenses Limit No person or organization is an insured with shown in the Declarations. respect to the conduct of any current or past 4. Personal And Advertising Injury Limit partnership, joint venture or limited liability Subject to above, the most we will pay for 2.b. company that is not shown as a Named Insured in the sum of all damages because of all the Declarations. "personal and advertising injury" sustained by D. LIABILITY AND MEDICAL EXPENSES any one person or organization is the Personal and Advertising Injury Limit shown in the LIMITS OF INSURANCE Declarations.
1. The Most We Will Pay
5. Damage To Premises Rented To You Limit The Limits of Insurance shown in the The Damage To Premises Rented To You Declarations and the rules below fix the most Limit is the most we will pay under Business we will pay regardless of the number of: Liability Coverage for damages because of a. Insureds; "property damage" to any one premises, while b. Claims made or "suits" brought; or rented to you, or in the case of damage by fire, c. Persons or organizations making claims or lightning or explosion, while rented to you or bringing "suits". temporarily occupied by you with permission of the owner. 2. Aggregate Limits
In the case of damage by fire, lightning or The most we will pay for: explosion, the Damage to Premises Rented To a. Damages because of "bodily injury" and You Limit applies to all damage proximately "property damage" included in the caused by the same event, whether such "products-completed operations hazard" is damage results from fire, lightning or explosion the Products-Completed Operations or any combination of these. Aggregate Limit shown in the 6. How Limits Apply To Additional Insureds Declarations.
The most we will pay on behalf of a person or b. Damages because of all other "bodily organization who is an additional insured injury", "property damage" or "personal under this Coverage Part is the lesser of: and advertising injury", including medical expenses, is the General Aggregate Limit a. The limits of insurance specified in a shown in the Declarations. written contract, written agreement or permit issued by a state or political This General Aggregate Limit applies subdivision; or separately to each of your "locations" owned by or rented to you. b. The Limits of Insurance shown in the Declarations. "Location" means premises involving the
same or connecting lots, or premises Such amount shall be a part of and not in whose connection is interrupted only by a addition to the Limits of Insurance shown in street, roadway or right-of-way of a the Declarations and described in this Section. railroad.
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BUSINESS LIABILITY COVERAGE FORM
If more than one limit of insurance under this (1) Immediately send us copies of any policy and any endorsements attached thereto demands, notices, summonses or applies to any claim or "suit", the most we will pay legal papers received in connection under this policy and the endorsements is the with the claim or "suit"; single highest limit of liability of all coverages (2) Authorize us to obtain records and applicable to such claim or "suit". However, this other information; paragraph does not apply to the Medical Expenses (3) Cooperate with us in the investigation, limit set forth in Paragraph above. 3. settlement of the claim or defense The Limits of Insurance of this Coverage Part apply against the "suit"; and separately to each consecutive annual period and to (4) Assist us, upon our request, in the any remaining period of less than 12 months, starting enforcement of any right against any with the beginning of the policy period shown in the person or organization that may be Declarations, unless the policy period is extended liable to the insured because of injury after issuance for an additional period of less than 12 or damage to which this insurance months. In that case, the additional period will be may also apply. deemed part of the last preceding period for purposes d. Obligations At The Insured's Own Cost of determining the Limits of Insurance.
No insured will, except at that insured's own E. LIABILITY AND MEDICAL EXPENSES cost, voluntarily make a payment, assume GENERAL CONDITIONS any obligation, or incur any expense, other
1. Bankruptcy than for first aid, without our consent.
Bankruptcy or insolvency of the insured or of e. Additional Insured's Other Insurance the insured's estate will not relieve us of our If we cover a claim or "suit" under this obligations under this Coverage Part. Coverage Part that may also be covered
2. Duties In The Event Of Occurrence, by other insurance available to an Offense, Claim Or Suit additional insured, such additional insured must submit such claim or "suit" to the a. Notice Of Occurrence Or Offense other insurer for defense and indemnity. You or any additional insured must see to However, this provision does not apply to it that we are notified as soon as the extent that you have agreed in a practicable of an "occurrence" or an written contract, written agreement or offense which may result in a claim. To permit that this insurance is primary and the extent possible, notice should include: non-contributory with the additional (1) How, when and where the "occurrence" insured's own insurance. or offense took place; f. Knowledge Of An Occurrence, Offense, (2) The names and addresses of any Claim Or Suit injured persons and witnesses; and Paragraphs and apply to you or to a. b. (3) The nature and location of any injury any additional insured only when such or damage arising out of the "occurrence", offense, claim or "suit" is "occurrence" or offense. known to:
b. Notice Of Claim (1) You or any additional insured that is If a claim is made or "suit" is brought an individual;
against any insured, you or any additional (2) Any partner, if you or an additional insured must: insured is a partnership;
(1) Immediately record the specifics of the (3) Any manager, if you or an additional claim or "suit" and the date received; insured is a limited liability company; and (4) Any "executive officer" or insurance (2) Notify us as soon as practicable. manager, if you or an additional You or any additional insured must see to insured is a corporation; it that we receive a written notice of the (5) Any trustee, if you or an additional claim or "suit" as soon as practicable. insured is a trust; or c. Assistance And Cooperation Of The (6) Any elected or appointed official, if you Insured or an additional insured is a political
You and any other involved insured must: subdivision or public entity.
Form SS 00 08 04 05 Page 15 of 24
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BUSINESS LIABILITY COVERAGE FORM
This Paragraph applies separately to f. (3) We have issued this policy in reliance you and any additional insured. upon your representations.
3. Financial Responsibility Laws b. Unintentional Failure To Disclose Hazards a. When this policy is certified as proof of
financial responsibility for the future under If unintentionally you should fail to disclose the provisions of any motor vehicle all hazards relating to the conduct of your financial responsibility law, the insurance business at the inception date of this provided by the policy for "bodily injury" Coverage Part, we shall not deny any liability and "property damage" liability will coverage under this Coverage Part comply with the provisions of the law to because of such failure. the extent of the coverage and limits of 7. Other Insurance insurance required by that law.
If other valid and collectible insurance is b. With respect to "mobile equipment" to available for a loss we cover under this which this insurance applies, we will Coverage Part, our obligations are limited as provide any liability, uninsured motorists, follows: underinsured motorists, no-fault or other a. Primary Insurance coverage required by any motor vehicle law. We will provide the required limits for This insurance is primary except when b. those coverages. below applies. If other insurance is also primary, we will share with all that other 4. Legal Action Against Us insurance by the method described in c. No person or organization has a right under below. this Coverage Form:
b. Excess Insurance
a. To join us as a party or otherwise bring us
This insurance is excess over any of the into a "suit" asking for damages from an other insurance, whether primary, excess, insured; or
contingent or on any other basis: b. To sue us on this Coverage Form unless all of its terms have been fully complied (1) Your Work with. That is Fire, Extended Coverage,
A person or organization may sue us to recover Builder's Risk, Installation Risk or on an agreed settlement or on a final judgment similar coverage for "your work"; against an insured; but we will not be liable for (2) Premises Rented To You damages that are not payable under the terms of That is fire, lightning or explosion this insurance or that are in excess of the insurance for premises rented to you applicable limit of insurance. An agreed or temporarily occupied by you with settlement means a settlement and release of permission of the owner; liability signed by us, the insured and the claimant or the claimant's legal representative. (3) Tenant Liability
5. Separation Of Insureds That is insurance purchased by you to cover your liability as a tenant for Except with respect to the Limits of Insurance, "property damage" to premises rented and any rights or duties specifically assigned to you or temporarily occupied by you in this policy to the first Named Insured, this with permission of the owner; insurance applies:
(4) Aircraft, Auto Or Watercraft a. As if each Named Insured were the only Named Insured; and If the loss arises out of the maintenance or use of aircraft, "autos" or watercraft to b. Separately to each insured against whom the extent not subject to Exclusion of g. a claim is made or "suit" is brought. Section – Coverages. A.
6. Representations (5) Property Damage To Borrowed a. When You Accept This Policy Equipment Or Use Of Elevators By accepting this policy, you agree: If the loss arises out of "property (1) The statements in the Declarations damage" to borrowed equipment or are accurate and complete; the use of elevators to the extent not subject to Exclusion of Section – k. A. (2) Those statements are based upon Coverages. representations you made to us; and
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BUSINESS LIABILITY COVERAGE FORM
(6) When You Are Added As An When this insurance is excess over other Additional Insured To Other insurance, we will pay only our share of Insurance the amount of the loss, if any, that
exceeds the sum of: That is other insurance available to you covering liability for damages (1) The total amount that all such other arising out of the premises or insurance would pay for the loss in the operations, or products and completed absence of this insurance; and operations, for which you have been (2) The total of all deductible and selfadded as an additional insured by that insured amounts under all that other insurance; or insurance.
(7) When You Add Others As An We will share the remaining loss, if any, with Additional Insured To This any other insurance that is not described in Insurance this Excess Insurance provision and was not
That is other insurance available to an bought specifically to apply in excess of the additional insured. Limits of Insurance shown in the
However, the following provisions Declarations of this Coverage Part. apply to other insurance available to c. Method Of Sharing any person or organization who is an If all the other insurance permits additional insured under this Coverage contribution by equal shares, we will follow Part: this method also. Under this approach, (a) Primary Insurance When each insurer contributes equal amounts Required By Contract until it has paid its applicable limit of insurance or none of the loss remains, This insurance is primary if you whichever comes first. have agreed in a written contract, written agreement or permit that If any of the other insurance does not permit this insurance be primary. If other contribution by equal shares, we will insurance is also primary, we will contribute by limits. Under this method, each share with all that other insurance insurer’s share is based on the ratio of its by the method described in c. applicable limit of insurance to the total below. applicable limits of insurance of all insurers.
(b) Primary And Non-Contributory 8. Transfer Of Rights Of Recovery Against To Other Insurance When Others To Us
Required By Contract a. Transfer Of Rights Of Recovery
If you have agreed in a written If the insured has rights to recover all or contract, written agreement or part of any payment, including permit that this insurance is Supplementary Payments, we have made primary and non-contributory with under this Coverage Part, those rights are the additional insured's own transferred to us. The insured must do insurance, this insurance is nothing after loss to impair them. At our primary and we will not seek request, the insured will bring "suit" or contribution from that other transfer those rights to us and help us insurance. enforce them. This condition does not
Paragraphs and do not apply to (a) (b) apply to Medical Expenses Coverage. other insurance to which the additional b. Waiver Of Rights Of Recovery (Waiver insured has been added as an Of Subrogation) additional insured. If the insured has waived any rights of When this insurance is excess, we will recovery against any person or have no duty under this Coverage Part to organization for all or part of any payment, defend the insured against any "suit" if any including Supplementary Payments, we other insurer has a duty to defend the have made under this Coverage Part, we insured against that "suit". If no other also waive that right, provided the insured insurer defends, we will undertake to do waived their rights of recovery against so, but we will be entitled to the insured's such person or organization in a contract, rights against all those other insurers. agreement or permit that was executed prior to the injury or damage.
Form SS 00 08 04 05 Page 17 of 24
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BUSINESS LIABILITY COVERAGE FORM
F. OPTIONAL ADDITIONAL INSURED 3. Additional Insured - Grantor Of Franchise COVERAGES WHO IS AN INSURED under Section is C.
amended to include as an additional insured If listed or shown as applicable in the Declarations, the person(s) or organization(s) shown in the one or more of the following Optional Additional Declarations as an Additional Insured - Insured Coverages also apply. When any of these Grantor Of Franchise, but only with respect to Optional Additional Insured Coverages apply, their liability as grantor of franchise to you. Paragraph (Additional Insureds When Required 6. by Written Contract, Written Agreement or Permit) 4. Additional Insured - Lessor Of Leased of Section , Who Is An Insured, does not apply C. Equipment to the person or organization shown in the a. WHO IS AN INSURED under Section is C.
Declarations. These coverages are subject to the amended to include as an additional terms and conditions applicable to Business insured the person(s) or organization(s) Liability Coverage in this policy, except as shown in the Declarations as an Additional provided below: Insured – Lessor of Leased Equipment,
1. Additional Insured - Designated Person Or but only with respect to liability for "bodily Organization injury", "property damage" or "personal
and advertising injury" caused, in whole or WHO IS AN INSURED under Section is C. in part, by your maintenance, operation or amended to include as an additional insured use of equipment leased to you by such the person(s) or organization(s) shown in the person(s) or organization(s). Declarations, but only with respect to liability for "bodily injury", "property damage" or b. With respect to the insurance afforded to "personal and advertising injury" caused, in these additional insureds, this insurance whole or in part, by your acts or omissions or does not apply to any "occurrence" which the acts or omissions of those acting on your takes place after you cease to lease that behalf: equipment.
a. 5. Additional Insured - Owners Or Other In the performance of your ongoing operations; or Interests From Whom Land Has Been
Leased b. In connection with your premises owned
by or rented to you. a. WHO IS AN INSURED under Section is C. amended to include as an additional 2. Additional Insured - Managers Or Lessors insured the person(s) or organization(s) Of Premises
shown in the Declarations as an Additional
a. WHO IS AN INSURED under Section is C. Insured – Owners Or Other Interests From amended to include as an additional insured Whom Land Has Been Leased, but only the person(s) or organization(s) shown in the with respect to liability arising out of the Declarations as an Additional Insured - ownership, maintenance or use of that part Designated Person Or Organization; but only of the land leased to you and shown in the with respect to liability arising out of the Declarations. ownership, maintenance or use of that part of b. With respect to the insurance afforded to the premises leased to you and shown in the these additional insureds, the following Declarations. additional exclusions apply: b. With respect to the insurance afforded to This insurance does not apply to: these additional insureds, the following additional exclusions apply: (1) Any "occurrence" that takes place after you cease to lease that land; or This insurance does not apply to:
(2) Structural alterations, new (1) Any "occurrence" which takes place construction or demolition operations after you cease to be a tenant in that performed by or on behalf of such premises; or person or organization. (2) Structural alterations, new 6. Additional Insured - State Or Political construction or demolition operations Subdivision – Permits performed by or on behalf of such person or organization. a. WHO IS AN INSURED under Section is C. amended to include as an additional
insured the state or political subdivision
shown in the Declarations as an Additional
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BUSINESS LIABILITY COVERAGE FORM
Insured – State Or Political Subdivision - (e) Any failure to make such Permits, but only with respect to inspections, adjustments, tests or operations performed by you or on your servicing as the vendor has agreed behalf for which the state or political to make or normally undertakes to subdivision has issued a permit. make in the usual course of business, in connection with the b. With respect to the insurance afforded to distribution or sale of the products; these additional insureds, the following additional exclusions apply: (f) Demonstration, installation, servicing or repair operations, This insurance does not apply to: except such operations performed (1) "Bodily injury", "property damage" or at the vendor's premises in "personal and advertising injury" connection with the sale of the arising out of operations performed for product;
the state or municipality; or
(g) Products which, after distribution (2) "Bodily injury" or "property damage" or sale by you, have been labeled included in the "product-completed or relabeled or used as a operations" hazard. container, part or ingredient of any
7. Additional Insured – Vendors other thing or substance by or for a. WHO IS AN INSURED under Section is C. the vendor; or amended to include as an additional (h) "Bodily injury" or "property insured the person(s) or organization(s) damage" arising out of the sole (referred to below as vendor) shown in the negligence of the vendor for its Declarations as an Additional Insured - own acts or omissions or those of Vendor, but only with respect to "bodily its employees or anyone else injury" or "property damage" arising out of acting on its behalf. However, this "your products" which are distributed or exclusion does not apply to:
sold in the regular course of the vendor's (i) The exceptions contained in business and only if this Coverage Part Subparagraphs or ; or (d) (f) provides coverage for "bodily injury" or (ii) Such inspections, "property damage" included within the adjustments, tests or servicing "products-completed operations hazard". as the vendor has agreed to b. The insurance afforded to the vendor is make or normally undertakes subject to the following additional exclusions: to make in the usual course of (1) This insurance does not apply to: business, in connection with the distribution or sale of the (a) "Bodily injury" or "property products. damage" for which the vendor is obligated to pay damages by (2) This insurance does not apply to any reason of the assumption of insured person or organization from liability in a contract or agreement. whom you have acquired such This exclusion does not apply to products, or any ingredient, part or liability for damages that the container, entering into, vendor would have in the absence accompanying or containing such of the contract or agreement; products.
(b) Any express warranty 8. Additional Insured – Controlling Interest unauthorized by you; WHO IS AN INSURED under Section is C. (c) Any physical or chemical change amended to include as an additional insured in the product made intentionally the person(s) or organization(s) shown in the by the vendor; Declarations as an Additional Insured –
Controlling Interest, but only with respect to (d) Repackaging, unless unpacked their liability arising out of: solely for the purpose of inspection, demonstration, testing, or the a. Their financial control of you; or substitution of parts under b. Premises they own, maintain or control instructions from the manufacturer, while you lease or occupy these premises. and then repackaged in the original container;
Form SS 00 08 04 05 Page 19 of 24
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BUSINESS LIABILITY COVERAGE FORM
This insurance does not apply to structural The limits of insurance that apply to additional alterations, new construction and demolition insureds are described in Section – Limits Of D. operations performed by or for that person or Insurance. organization. How this insurance applies when other insurance
9. Additional Insured – Owners, Lessees Or is available to an additional insured is described in Contractors – Scheduled Person Or the Other Insurance Condition in Section – E.
Organization Liability And Medical Expenses General
a. WHO IS AN INSURED under Section is C. Conditions.
amended to include as an additional G. LIABILITY AND MEDICAL EXPENSES insured the person(s) or organization(s) DEFINITIONS shown in the Declarations as an Additional
1. "Advertisement" means the widespread public Insured – Owner, Lessees Or Contractors, but only with respect to liability for "bodily dissemination of information or images that has the purpose of inducing the sale of goods, injury", "property damage" or "personal and advertising injury" caused, in whole or products or services through:
in part, by your acts or omissions or the a. (1) Radio; acts or omissions of those acting on your (2) Television; behalf: (3) Billboard; (1) In the performance of your ongoing (4) Magazine; operations for the additional (5) Newspaper; insured(s); or b. The Internet, but only that part of a web (2) In connection with "your work" site that is about goods, products or performed for that additional insured services for the purposes of inducing the and included within the "products- sale of goods, products or services; or completed operations hazard", but only if this Coverage Part provides c. Any other publication that is given coverage for "bodily injury" or widespread public distribution. "property damage" included within the However, "advertisement" does not include:
"products-completed operations a. The design, printed material, information hazard". or images contained in, on or upon the b. With respect to the insurance afforded to packaging or labeling of any goods or these additional insureds, this insurance products; or does not apply to "bodily injury", "property b. An interactive conversation between or damage" or "personal an advertising among persons through a computer network. injury" arising out of the rendering of, or
2. "Advertising idea" means any idea for an the failure to render, any professional architectural, engineering or surveying "advertisement". services, including: 3. "Asbestos hazard" means an exposure or (1) The preparing, approving, or failure to threat of exposure to the actual or alleged prepare or approve, maps, shop properties of asbestos and includes the mere drawings, opinions, reports, surveys, presence of asbestos in any form. field orders, change orders, designs or 4. "Auto" means a land motor vehicle, trailer or drawings and specifications; or semi-trailer designed for travel on public (2) Supervisory, inspection, architectural roads, including any attached machinery or or engineering activities. equipment. But "auto" does not include "mobile equipment". 10. Additional Insured – Co-Owner Of Insured Premises 5. "Bodily injury" means physical:
WHO IS AN INSURED under Section is C. a. Injury;
amended to include as an additional insured b. Sickness; or the person(s) or Organization(s) shown in the c. Disease Declarations as an Additional Insured – CoOwner Of Insured Premises, but only with sustained by a person and, if arising out of the above, mental anguish or death at any time. respect to their liability as co-owner of the premises shown in the Declarations. 6. "Coverage territory" means:
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BUSINESS LIABILITY COVERAGE FORM
a. The United States of America (including its b. You have failed to fulfill the terms of a territories and possessions), Puerto Rico contract or agreement; and Canada; if such property can be restored to use by:
b. International waters or airspace, but only if a. The repair, replacement, adjustment or the injury or damage occurs in the course removal of "your product" or "your work"; of travel or transportation between any or places included in above; a. b. Your fulfilling the terms of the contract or c. All other parts of the world if the injury or agreement. damage arises out of: 12. "Insured contract" means:
(1) Goods or products made or sold by you
a. A contract for a lease of premises. in the territory described in above; a.
However, that portion of the contract for a (2) The activities of a person whose home lease of premises that indemnifies any is in the territory described in . a person or organization for damage by fire, above, but is away for a short time on lightning or explosion to premises while your business; or rented to you or temporarily occupied by (3) "Personal and advertising injury" you with permission of the owner is offenses that take place through the subject to the Damage To Premises Internet or similar electronic means of Rented To You limit described in Section communication D. – Liability and Medical Expenses Limits of Insurance. provided the insured's responsibility to pay damages is determined in the United States of b. A sidetrack agreement; America (including its territories and c. Any easement or license agreement, possessions), Puerto Rico or Canada, in a including an easement or license "suit" on the merits according to the agreement in connection with construction substantive law in such territory, or in a or demolition operations on or within 50 settlement we agree to. feet of a railroad;
7. "Electronic data" means information, facts or d. Any obligation, as required by ordinance, programs: to indemnify a municipality, except in
a. Stored as or on; connection with work for a municipality; b. Created or used on; or e. An elevator maintenance agreement; or c. Transmitted to or from f. That part of any other contract or computer software, including systems and agreement pertaining to your business applications software, hard or floppy disks, (including an indemnification of a CD-ROMS, tapes, drives, cells, data municipality in connection with work processing devices or any other media which performed for a municipality) under which are used with electronically controlled you assume the tort liability of another equipment. party to pay for "bodily injury" or "property damage" to a third person or organization, 8. "Employee" includes a "leased worker". provided the "bodily injury" or "property "Employee" does not include a "temporary damage" is caused, in whole or in part, by worker". you or by those acting on your behalf. 9. "Executive officer" means a person holding Tort liability means a liability that would be any of the officer positions created by your imposed by law in the absence of any charter, constitution, by-laws or any other contract or agreement. similar governing document. Paragraph includes that part of any f.
10. "Hostile fire" means one which becomes contract or agreement that indemnifies a uncontrollable or breaks out from where it was railroad for "bodily injury" or "property intended to be. damage" arising out of construction or
11. "Impaired property" means tangible property, demolition operations within 50 feet of any other than "your product" or "your work", that railroad property and affecting any railroad cannot be used or is less useful because: bridge or trestle, tracks, road-beds, tunnel, underpass or crossing. a. It incorporates "your product" or "your work" that is known or thought to be defective, However, Paragraph does not include f. deficient, inadequate or dangerous; or that part of any contract or agreement:
Form SS 00 08 04 05 Page 21 of 24
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BUSINESS LIABILITY COVERAGE FORM
(1) That indemnifies an architect, (1) Power cranes, shovels, loaders, engineer or surveyor for injury or diggers or drills; or damage arising out of: (2) Road construction or resurfacing (a) Preparing, approving or failing to equipment such as graders, scrapers prepare or approve maps, shop or rollers;
drawings, opinions, reports, e. Vehicles not described in , , , or a. b. c. d. surveys, field orders, change above that are not self-propelled and are orders, designs or drawings and maintained primarily to provide mobility to specifications; or permanently attached equipment of the (b) Giving directions or instructions, following types:
or failing to give them, if that is the (1) Air compressors, pumps and primary cause of the injury or generators, including spraying, damage; or welding, building cleaning, (2) Under which the insured, if an geophysical exploration, lighting and architect, engineer or surveyor, well servicing equipment; or assumes liability for an injury or (2) Cherry pickers and similar devices damage arising out of the insured's used to raise or lower workers; rendering or failure to render f. Vehicles not described in , , , or a. b. c. d. professional services, including those above maintained primarily for purposes listed in above and supervisory, (1) other than the transportation of persons or inspection, architectural or cargo. engineering activities.
However, self-propelled vehicles with the 13. "Leased worker" means a person leased to following types of permanently attached you by a labor leasing firm under an equipment are not "mobile equipment" but agreement between you and the labor leasing will be considered "autos": firm, to perform duties related to the conduct of your business. "Leased worker" does not (1) Equipment, of at least 1,000 pounds include a "temporary worker". gross vehicle weight, designed primarily for: 14. "Loading or unloading" means the handling of property: (a) Snow removal;
a. After it is moved from the place where it is (b) Road maintenance, but not accepted for movement into or onto an construction or resurfacing; or aircraft, watercraft or "auto"; (c) Street cleaning;
b. While it is in or on an aircraft, watercraft or (2) Cherry pickers and similar devices "auto"; or mounted on automobile or truck
c. While it is being moved from an aircraft, chassis and used to raise or lower watercraft or "auto" to the place where it is workers; and finally delivered; (3) Air compressors, pumps and
but "loading or unloading" does not include the generators, including spraying, movement of property by means of a mechanical welding, building cleaning, device, other than a hand truck, that is not geophysical exploration, lighting and attached to the aircraft, watercraft or "auto". well servicing equipment.
15. "Mobile equipment" means any of the following 16. "Occurrence" means an accident, including types of land vehicles, including any attached continuous or repeated exposure to substantially machinery or equipment: the same general harmful conditions. a. Bulldozers, farm machinery, forklifts and 17. "Personal and advertising injury" means injury, other vehicles designed for use principally including consequential "bodily injury", arising off public roads; out of one or more of the following offenses:
b. Vehicles maintained for use solely on or a. False arrest, detention or imprisonment; next to premises you own or rent; b. Malicious prosecution; c. Vehicles that travel on crawler treads;
d. Vehicles, whether self-propelled or not, on
which are permanently mounted:
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BUSINESS LIABILITY COVERAGE FORM
c. The wrongful eviction from, wrongful entry Work that may need service, maintenance, into, or invasion of the right of private correction, repair or replacement, but occupancy of a room, dwelling or which is otherwise complete, will be premises that the person occupies, treated as completed. committed by or on behalf of its owner, The "bodily injury" or "property damage" landlord or lessor; must occur away from premises you own d. Oral, written or electronic publication of or rent, unless your business includes the material that slanders or libels a person or selling, handling or distribution of "your organization or disparages a person's or product" for consumption on premises you organization's goods, products or services; own or rent. e. Oral, written or electronic publication of b. Does not include "bodily injury" or material that violates a person's right of "property damage" arising out of:
privacy; (1) The transportation of property, unless
f. Copying, in your "advertisement", a the injury or damage arises out of a person’s or organization’s "advertising condition in or on a vehicle not owned idea" or style of "advertisement"; or operated by you, and that condition g. was created by the "loading or Infringement of copyright, slogan, or title of any literary or artistic work, in your unloading" of that vehicle by any "advertisement"; or insured; or
h. Discrimination or humiliation that results in (2) The existence of tools, uninstalled injury to the feelings or reputation of a equipment or abandoned or unused natural person. materials.
18. "Pollutants" means any solid, liquid, gaseous or 20. "Property damage" means:
thermal irritant or contaminant, including smoke, a. Physical injury to tangible property, vapor, soot, fumes, acids, alkalis, chemicals and including all resulting loss of use of that waste. Waste includes materials to be recycled, property. All such loss of use shall be reconditioned or reclaimed. deemed to occur at the time of the
19. "Products-completed operations hazard"; physical injury that caused it; or a. b. Loss of use of tangible property that is not Includes all "bodily injury" and "property damage" occurring away from premises physically injured. All such loss of use you own or rent and arising out of "your shall be deemed to occur at the time of product" or "your work" except: "occurrence" that caused it. (1) Products that are still in your physical As used in this definition, "electronic data" is possession; or not tangible property.
(2) Work that has not yet been completed 21. "Suit" means a civil proceeding in which or abandoned. However, "your work" damages because of "bodily injury", "property will be deemed to be completed at the damage" or "personal and advertising injury" earliest of the following times: to which this insurance applies are alleged. "Suit" includes: (a) When all of the work called for in your contract has been completed. a. An arbitration proceeding in which such damages are claimed and to which the (b) When all of the work to be done at insured must submit or does submit with the job site has been completed if our consent; or your contract calls for work at more than one job site. b. Any other alternative dispute resolution proceeding in which such damages are (c) When that part of the work done at claimed and to which the insured submits a job site has been put to its with our consent. intended use by any person or organization other than another 22. "Temporary worker" means a person who is contractor or subcontractor furnished to you to substitute for a permanent working on the same project. "employee" on leave or to meet seasonal or short-term workload conditions.
23. "Volunteer worker" means a person who:
a. Is not your "employee";
Form SS 00 08 04 05 Page 23 of 24
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BUSINESS LIABILITY COVERAGE FORM
b. Donates his or her work; (2) The providing of or failure to provide warnings or instructions. c. Acts at the direction of and within the scope of duties determined by you; and c. Does not include vending machines or d. Is not paid a fee, salary or other other property rented to or located for the compensation by you or anyone else for use of others but not sold. their work performed for you. 25. "Your work":
24. "Your product": a. Means:
a. Means: (1) Work or operations performed by you
(1) Any goods or products, other than real or on your behalf; and property, manufactured, sold, handled, (2) Materials, parts or equipment distributed or disposed of by: furnished in connection with such work (a) You; or operations.
(b) Others trading under your name; b. Includes:
or (1) Warranties or representations made at
(c) A person or organization whose any time with respect to the fitness, business or assets you have quality, durability, performance or use acquired; and of "your work"; and
(2) Containers (other than vehicles), (2) The providing of or failure to provide materials, parts or equipment warnings or instructions. furnished in connection with such
goods or products.
b. Includes:
(1) Warranties or representations made at
any time with respect to the fitness,
quality, durability, performance or use
of "your product"; and
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THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
Countersigned by
Authorized Representative
Form WC 04 03 06 (1) Printed in U.S.A.
Policy Expiration Date:
WAIVER OF OUR RIGHT TO RECOVER FROM
OTHERS ENDORSEMENT - CALIFORNIA
Policy Number: Endorsement Number:
Effective Date: Effective hour is the same as stated on the Information Page of the policy.
Named Insured and Address:
We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule.
The additional premium for this endorsement shall be 2 % of the California workers' compensation premium otherwise due on such remuneration.
SCHEDULE
Person or Organization Job Description
Any person or organization from whom you are required by written contract or agreement to obtain this waiver of rights from us
57WECAB10L8 02/01/2024
Municipal Resource Group, LLC (MRG)
PO BOX 561
Wilton, CA 95693
02/01/2025
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Policy #
57SBAUZ2244
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Policy Number:
Effective Date:
Endorsement:
Effective hour is the same as stated on the Information Page of the policy.
Named Insured and Address:
Form WC 99 03 94 Printed in U.S.A.
Process Date:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
Policy Expiration Date:
© 2011, The Hartford
NOTICE OF CANCELLATION TO CERTIFICATE HOLDER(S)
This policy is subject to the following additional
Conditions:
A. If this policy is cancelled by the Company, other
than for non-payment of premium, notice of such
cancellation will be provided at least thirty (30)
days in advance of the cancellation effective
date to the certificate holder(s) with mailing
addresses on file with the agent of record or the
Company.
B. If this policy is cancelled by the Company for
non-payment of premium, or by the insured,
notice of such cancellation will be provided
within ten (10) days of the cancellation effective
date to the certificate holder(s) with mailing
addresses on file with the agent of record or the
Company.
If notice is mailed, proof of mailing to the last known mailing address of the certificate holder(s) on file
with the agent of record or the Company will be
sufficient proof of notice.
Any notification rights provided by this endorsement
apply only to active certificate holder(s) who were
issued a certificate of insurance applicable to this
policy’s term.
Failure to provide such notice to the certificate
holder(s) will not amend or extend the date the
cancellation becomes effective, nor will it negate
cancellation of the policy. Failure to send notice
shall impose no liability of any kind upon the
Company or its agents or representatives.
57WECAB10L8 02/01/2024
Municipal Resource Group, LLC (MRG)
PO BOX 561
Wilton, CA 95693
02/01/2025 2/5/2024
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REQUEST FOR TECHNICAL PROPOSAL INF #24-21
FOR
CITY OF MODESTO
DEPARTMENT OF HUMAN RESOURCES
SUBMITTED BY: KATELYN CODNER
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Bid Response Packet – RFP #69-24 l 1
Contents
1. Cover Letter ...................................................................................................................................... 2
2. Project Understanding and Approach .............................................................................................. 3
3. Qualifications of Consultant Staff and Subconsultant Staff............................................................ 13
4. Experience of Firm .......................................................................................................................... 15
5. Cost, Schedule & Deadline Costs, Schedule & Deadline................................................................. 17
5.a. Qualifications of the Firm................................................................................................................. 17
5. b. Professional Fees and Estimated Out-of-Pocket Expenses......................................................... 17
5.c. List of Previous Clients ..................................................................................................................... 19
5. d. Principal Staff Contacts................................................................................................................... 20 #17..
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Bid Response Packet – RFP #69-24 l 2
1. Cover Letter
Dear Selection Panel,
DigiStream Investigations, Inc. is pleased to submit the Request for Proposal for Investigative Services for City of Modesto, Department of Human Resources. DigiStream Investigations was founded in 2001, initially as a boutique surveillance firm and has since grown in investigative scope to cover recorded statements, background and social media checks and medical canvassing across 24 offices with private investigative licenses in all 50 US states (CA PI License PI23517). Digistream now has forensic, complex due diligence and global investigative capabilities via the UpStream Intelligence division.
Despite the growth of the company, each office remains employee owned and locally operated by individuals who started their careers with DigiStream as investigators. DigiStream has at least eight (8) different team members interacting with any given case and sharing notable findings back to the appropriate parties. The proposed team includes but is not limited to Surveillance Investigators, Research Analysts, Claims Investigators, Evidence Associates, Video Technicians, a Field Operations Manager, All-Source Analysts, a Desktop Operations Coordinator, an Office Manager, an Account Manager and a General Manager. Depending on the nature of each investigation, the City of Modesto will have consistent contact with either the General Manager, Managing Partner of UpStream Intelligence or Claims Investigator.
DigiStream Central Valley, Inc. had annual revenue of $4.28 million in fiscal year 2023. Year-to-date 2024 revenue is just under $1 million.
The City of Modesto will be a critically important account to DigiStream and the UpStream Intelligence division. It is located within the territory of DigiStream’s first, and flagship, office. The company’s founder Will Aaronson also spends an outsized proportion of his time and attention in this office.
After two decades in the industry DigiStream has become the premier provide in investigative services.
DigiStream is a solely investigations based company. With surveillance remaining as our core focus we are able to allocate all resources to our investigations and have those services remain our top priority.
This unique business model ensures that local offices, such as DigiStream Central Valley, remain fully committed to successfully servicing important accounts.
DigiStream accepts the terms and conditions in the RFP and the Standard Agreement for Professional Services, including acknowledgment of receipt of all amendments and/or addenda to RFP INF #24-21.
Sincerely,
Katelyn Codner
Partner – Firm Representative – Point of Contact
916.906.1161
DigiStream Central Valley, Inc.
3831 N. Freeway Blvd., Suite #115 Sacramento CA, 95834
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Bid Response Packet – RFP #69-24 l 3
2. Project Understanding and Approach
Since being founded in 2001, DigiStream has specialized solely in the tradecraft of investigations.
DigiStream is an industry leader in both surveillance and Open-Source Intelligence (OSINT) and continues to invest in expanding the technological infrastructure, methodology and personnel needed to remain the best private intelligence company in North America.
DigiStream completes nearly 40,000 days of manned surveillance yearly across the nation, and over 10,000 Open-Source Intelligence (OSINT) reports. In so doing the Company has built a unique perspective on investigations and executing them in the most practical, legal and ethical manner possible.
SURVEILLANCE OPERATIONS
DigiStream was founded as a boutique surveillance company in 2001. As such, surveillance still represents the cultural core of the company. The majority of shareholders and partners in the company started their careers as surveillance investigators, and exercise and outsized influence on the quality of local operations.
DigiStream employs a high degree of control over its surveillance operations to ensure quality. These are outlined below:
W-9 employees – DigiStream does not subcontract surveillance within the United States under any circumstances. As a result, the company is able to ensure that each investigator working an assignment has graduated from our custom “Surveillance 101” boot camp. This is a stringent classroom and field training which ensures each investigator has mastered the tradecraft of vehicle and foot following techniques, covert video, appropriate stakeout locations, basic OSINT for case preparation, videography skills and investigative report writing.
DigiStream incentivizes their surveillance investigators via a merit-based promotion track which allows promotions to Senior Surveillance Investigator and Unit Leader. These positions grant excellent investigators the opportunity to develop greater autonomy in the field, greater access to data resources, and generally a pathway to management. They are also the investigators who generally work highprofile or sensitive cases for clients such as the City of Modesto.
Fleet control – DigiStream provides a custom fleet of SUVs and minivans tailored to surveillance. Each vehicle is company-owned and equipped with GPS to ensure investigator integrity and offer our clients the peace of mind that investigators can always prove their reports align perfectly with their actions.
Ease of review – DigiStream employs Video Technicians who receive surveillance evidence in a legally robust manner via secure File Transfer Protocol (FTP) and preserve the video for client review. They also prepare an email-accessible highlight of each day of surveillance which the client can review within 24 hours. This allows our clients the ability to exercise cost control and increase or decrease the number of days of surveillance based on their judgment as to the quality of results. #17..
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Bid Response Packet – RFP #69-24 l 4
Advanced training program – DigiStream has a long-standing and exclusive private sector relationship with Tyto Consulting, a United Kingdom-based surveillance training company. The proprietor Pete Jenkins is widely regarded as the world authority on surveillance operations and he actively trains US Special Operations Command, the Brazilian Security Services and UK counter-terrorism operators.
DigiStream and Mr. Jenkins jointly administer an advanced training for two weeks each year in the Sacramento metropolitan area where the top 5% of all DigiStream investigators from throughout the country gather for training in multi-investigator surveillance operations, remote camera operation, rural and urban surveillance, unconventional intelligence gathering and more. The intensity of the training is designed for the top 1% of cases which require such skills, and these cases are generally worked via UpStream Intelligence. Each DigiStream client has access to these investigators as their needs dictate.
Performance Tracking – Each case worked is rated based on numerous factors, the most important of which being a) the percentage of surveillance days in which video is obtained, b) the number of locations a subject is followed, and c) the quantity of surveillance video as measured by minutes. These three performance metrics are adjusted by whether the case is in a rural, urban or suburban area, and are available to the client at any time. They are also reviewed during regularly scheduled file reviews. It is DigiStream’s way of demonstrating a keen attention to performance to our clients.
Secure Rapid Referral System – DigiStream’s online referral form securely transmits assignments directly into the company case management system, segregated by region. The case management system is governed by stringent Standard Information Gathering (SIG) documentation and mirrored in two secure data centers - one in Sacramento, California and the other a fail-over site near Las Vegas, Nevada.
Referrals can be made either directly from DigiStream’s website, or via a secure client login where client information is prepopulated and saved for ease of use when referring assignments. All investigative services, from surveillance to background checks to recorded statements, can be ordered within minutes from this secure client login.
When a referral is submitted, it automatically is flagged within our system for a simultaneous case confirmation, scheduling and pre-investigative work-up (see ‘Extensive Case Preparation’ section below for more information on this process).
• Next Day Video (NDV) and Same Day Video (SDV) – DigiStream's ‘Next Day Video’ technology takes our High-Definition video evidence and securely streams it within 24-hours to all the necessary parties.
Clients to have direct access to surveillance footage and a narrative summary of efforts within 24-hours of capturing the video evidence. Many clients also value Same Day Video footage and this can occur on nearly every case if warranted and operationally feasible, meaning the investigator in the field is not currently following the subject. The ability to securely view past surveillance days is a feature of both the NDV and SDV services as well. The videos are available for viewing from any device with an internet connection, including mobile phones, if permitted by your organization’s IT policies.
We encourage you to view some of our recently redacted surveillance footage here. #17..
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Bid Response Packet – RFP #69-24 l 5
INVESTIGATIVE RESEARCH
DigiStream’s investigative research has broad capabilities. Depending on the complexity of the request, general investigative requests can often be handled by UpStream Intelligence. These include asset searches, due diligence on persons and entities of interest, and customized research.
Examples of customized research include ongoing work for a State of California Department related to wildfire investigations. The UpStream Intelligence division is analyzing the conditions of properties prior to the wildfire to determine whether defensible space recommendations were being adhered to. To accomplish this, UpStream utilizes commercial orthomosaic satellite imagery, near-infrared imagery, aerial photography, and social media posts sourced via geofencing technology.
Another example of general investigative research involves the unmasking of threat actors for a Northern California police department. Anonymous “sock puppet” accounts were being utilized to send cryptic and threatening social media posts targeting law enforcement. UpStream Intelligence was able to successfully unmask these posters using a number of OSINT tradecraft techniques and database queries.
The capabilities the City has access to regarding very broad-based investigative research are many. In short, they are only limited by the technology, data access and tradecraft of UpStream Intelligence. As long as a request is legal,
ethical and practical, it can be
satisfied with a high degree of
confidence.
INTERVIEWS
DigiStream employs a number
of investigators who solely
specialize in claims
investigations, harassment,
employment matters and scene
inspections. Each investigator is
trained in interview techniques
and equipped with customized
statement guides designed to
ensure each investigation is
comprehensive and the line of
questioning is exhaustive.
For extremely sensitive matters, we have partnered with Dr. Mark Peterson and developed the Solution Focused Claims Investigation (SFCI) methodology. In short, SFCI utilizes an “employee first” approach which, rather than an interrogatory method of interview, seeks to understand the motivating factors behind certain actions and appeal to the inherent desire of people to overcome adversity and, as is often the goal, return to work under successful conditions. Our work with Dr. Peterson has resulted in #17..
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Bid Response Packet – RFP #69-24 l 6
the rate of cases which were investigated and then subsequently litigated from over 40% to 10% over a four year period (see graph below).
DigiStream investigators stand ready to respond to City requests immediately, as oftentimes time is of the essence. The resulting reports are easy to read and contain scene photographs and supporting documentation according to industry standards.
BACKGROUND INVESTIGATIONS
Background checks are a core competency. At great cost, DigiStream subscribes to all “tier one” commercial databases, including Thomson Reuters, Lexis Nexis, Experian and Delvepoint. This database coverage is augmented by direct data feeds with superior courts across the country, vehicle license plate reading datasets, facial recognition datasets and other information which aids in a background investigation. The public records datasets include:
• Criminal Records
o Incarcerations
o Arrests
o Felonies
o Misdemeanors
o Infractions
• Civil Records
o Professional Licenses
o Corporate Filings
o Employment
o Marriages & Divorces
o UCC Filings
o Judgments
o Liens
o Lawsuits & Dockets
o Evictions
o Foreclosures
o Bankruptcies
• Property Records
o Unclaimed Assets
o Aircraft
o Watercraft
o Vehicles
o Property Deeds
o DMV Records
• Other Records
o Utilities
o Student Records
o Military Records
o Pilot’s Licenses
o FAA Certifications
o Firearms/Explosives
Licenses
o Hunting/Fishing
Licenses
o Political Donations
o Voter Registrations
o Motor Vehicle
Accidents
o Drivers Licenses
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RFP INF# 24-21 7
Each investigation is broken into two broad categories: Public Records data, and Internet & Social Media data. All material content is preserved according to industry standards, and metadata for all social media posts is available for cases where a foundation for the evidence needs to be laid in a court of law.
All Research Analysts are thoroughly trained in Open-Source Intelligence (OSINT) and Geospatial Intelligence (GEOINT). Both investigative modalities are often brought to bear during these types of investigations.
UNDERCOVER INVESTIGATIONS
Most undercover investigations are led by the UpStream Intelligence division. Recent examples include surveillance on an employee theft ring where company material was being stolen from a loading bay and sold on the open market. A second example includes a Northern California industrial facility which was the victim of repeated theft. UpStream was contracted to perform repeated physical penetration tests to document the facility’s vulnerabilities to both current and future issues. Particular emphasis was placed upon the ability to break into secure locations and steal sensitive company and employee information. Secondary emphasis was placed on hardening the facility to outside threats which may target employees.
During the course of the undercover investigation, the DigiStream/UpStream team of surveillance investigators was able to gain access to the secure manufacturing facility, obtaining access to the IT infrastructure, financial systems, HR systems, manufacturing software, shift roster, proprietary information and bank reconciliation records. This was accomplished via a combination of surveillance, social engineering and the tradecraft learned during the Advanced Surveillance Training (see section above in Surveillance). This report was turned over to the Human Resources Department and the EHS Manager so they could take immediate remediating steps.
PEOPLE LOCATES
People locates, often called “skip tracing,” are handled by the same Research Analysts who specialize in background investigations and Open-Source Intelligence (OSINT). The background check data vendors described in the Background Investigations section above are brought to bear in the course of these investigations. DigiStream completes tens of thousands of people locates annually, as each surveillance case referred to the Company begins with this process to ensure an accurate address and other information is obtained to complete a pre-case assessment.
INTERNET & EMAIL TRACING
Internet and email tracing is handled via DigiStream’s UpStream Intelligence division. Most often these cases are completed with the goal of unmasking an anonymous threat actor. While UpStream’s specific technology and methodologies employed to execute such cases are trade secrets, at a high level they involve the harvesting of breach datasets in order to match the threat actor’s email address, IP address or other identifying information contained in metadata. Other methods involve reserve imagery #17..
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RFP INF# 24-21 8
searches, geolocation of images or other visual information contained in photographs, as well as the cross-reference of usernames and passwords with known entities.
Forensic information is often helpful in cases involving tracing the identity or location of websites or email, this includes the harvesting of device location information which may lead to the unmasking of a threat actor.
COMPUTER EXAMINATIONS
Computer examinations, as well as cellular device forensics, is handled via DigiStream’s UpStream Intelligence division. UpStream retains two full-time forensics technicians who specialize in the forensic extraction, preservation and analysis of digital data in a legally defensible and replicable manner. With years of experience in such matters, including murder investigations and sensitive employee harassment investigations, UpStream has a deep well of talent to deploy in all forensic matters.
ELECTRONIC SURVEILLANCE COUNTERMEASURES
Electronic surveillance countermeasures, often colloquially called “bug sweeps”, are handled via DigiStream’s UpStream
Intelligence division. These are complex and highly technical investigations where the goal is to uncover any active or passive surveillance a potential threat actor may have deployed in a given area. Such surveillance often involves audio, video or photographic means.
1. Physical inspection is completed by examining each
designated area of the scope of work including electronic devices, audio/visual equipment, tables, desks, ceilings, walls, floors, fixtures, artwork, furniture, and cabinets.
2. Infrared Camera, forensic light inspection, camera lens LED technology, among other tools are used to complete the physical inspection (see photo above). The purpose is to identify the camera lens, heat signature associated with eavesdropping technology and/or identify construction patch-ups to conceal covert audio and video devices.
3. A technical inspection is conducted using advanced spectrum analyzers to examine and analyze all RF frequencies and demodulate RF frequencies from 9 KHz up to 8 GHz. The purpose is to detect RF signals of potential threats/locate RF transmitters. #17..
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4. Non-Linear Junction Detection (NLJ) is used to “sweep” for any semi-conductors’ “electronics” that are associated with eavesdropping devices that could be used to transmit audio, video, and other sensitive data. The NLJ detects
electronics that are passive, meaning
non-operational due to battery
depletion or electronic devices that
are powered off.
5. Advanced Wi-Fi and Bluetooth
detection technology is utilized to
locate Bluetooth devices and threats
as well as rogue Wi-Fi access points
(at right). Additionally, a Wi-Fi sweep
is completed to find any unknown
connected devices and unsecured
transmitting Wi-Fi devices that could
open a pathway to the internal network.
ADDITIONAL SERVICES
DigiStream Investigations, via UpStream Intelligence, offers a host of investigative capabilities beyond the scope of those identified in this RFP. These include but are not limited to:
• Imagery and video upscaling
• International surveillance and Background investigations • Entity due diligence and asset investigations
• Jury selection intelligence
• Anonymity services for corporate leadership teams and exposed public employees Detailed overviews of such services and more can be found at www.upstream-intelligence.com #17..
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DigiStream Investigations Central Valley employs twenty-seven (27) team members in total, see the list below as a comprehensive roster of staffing required on a case by case basis:
• Surveillance Investigators
• Research Analysts
• Claims Investigator
• Evidence Associates
• Video Technician
• Field Operations Manager
• All-Source Analyst
• Desktop Operations Coordinator
• Office Manager
• Account Manager
• General Manager
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COMPLEX INVESTIGATIONS
https://www.upstreamintelinc.com/
• Cell Phone Forensics
• International Surveillance
• Business Investigations
• Due Diligence
• Fraud Investigations
• Pre-Employment Background Checks
• Threat Actor Unmasking
• Juror Research
• Data and Privacy Advisement
Differentiators
• POST Certified
• Creative solutions built around targeted use of open-source intelligence • PBSA Certified
• World Association of Detectives Member
• Secure and confidential case management
• In-house digital forensic examinations and reporting
• International network of closely vetted contacts across 100+ countries Service Area: Worldwide
• Collection and assembly of product data, legal documents, and supply chain intelligence
• Geosocial and geospatial research into wildfire investigations County of Tulare, CA
• International location and surveillance of verified subject • Dynamic research monitoring individual’s digital presence and activity 561611 Investigation & Personal Background Check Services Core Competencies
Differentiators
Select Local Commercial Performances
NAICS & PSC Codes
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R423 Support- Professional: Intelligence
R424 Support- Professional: Expert Witness
R612 Support- Administrative: Information Retrieval
R615 Support- Administrative: Background Investigation
3. Qualifications of Consultant Staff and Subconsultant Staff Key Personnel:
• Katelyn Codner
• Carina Arteaga
• Garrett McGinn
• Megan Kohls
• Claire Perkins
• Malcolm Rivera
Managing Partner: Katelyn Codner
Katelyn Codner is the Managing Partner of DigiStream Central Valley and has over 8 years of experience in the private investigations industry. Extensive experience in Surveillance and Operations Management.
Since beginning her career within DigiStream, she has worked as a Surveillance Investigator, Field Operations Coordinator, Field Operations Manager, Investigative Advisor, General Manager and now Managing Partner. Katelyn has over 12 years of Management experience and spent 3 years within DigiStream in the Investigative Advisor role where her primary focus was intaking files, executing a plan of action, and producing high-quality results for every file. Katelyn is also co-chair of the Ladies Leadership Network at DigiStream Investigations.
Field Operations Manager: Carina Arteaga
Carina Arteaga is the Field Operations Manager for DigiStream Central Valley. Carina has over 6 years of experience in the private investigations industry and is an accomplished covert video specialist, rural surveillance specialist, and covert follow specialist. Carina started at DigiStream in 2017 as a Surveillance Investigator, was promoted to Senior Surveillance Investigator, Surveillance Unit Leader, Surveillance Unit Lead Trainer, Field Operations Coordinator and now Field Operations Manager. Carina has received advanced surveillance training and successfully completed Surveillance 201.
Cofounding Partner: Garrett McGinn
is the Director of DigiStream's Research and Development Division and has over 17 years of experience in the private investigative industry. He is a Certified Fraud Examiner and a licensed California Private Investigator. He holds a Master's Degree in Trans-Atlantic Relations from the Uniwersytet Jagielloński in Kraków, Poland, and a Bachelor's Degree in International Relations from the University of California, Davis. Garrett trained in advanced surveillance tactics in the United Kingdom, achieving a Level III #17..
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Advanced Award in Foot & Mobile Surveillance in 2007. Prior to his employment with DigiStream in 2006, Garrett was a Research Analyst for Glass, Lewis & Co., an institutional investment advisory firm.
Managing Partner: Megan Kohls
Megan Kohls is Partner with DigiStream’s sister-company, UpStream Intelligence, and currently provides oversight and guidance to a carefully selected team of analysts working advanced cases related to insurance fraud, civil liability, murder, harassment, and stalking. Prior to her position at UpStream Intelligence, Megan managed the Research & Development department at DigiStream Investigations from 2017-2021. In 2020 Megan obtained her California Private Investigators License. In 2017, she completed her Fraud Claims Law Specialist designation through the American Educational Institute. She holds a Master of Science Library Science from Simmons University and obtained a B.A. in History at the University of Massachusetts, Amherst.
UpStream’s Complex investigations are often handled in conjunction with DigiStream’s in-house team of investigative experts at UpStream Intelligence. UpStream is a company within the DigiStream brand dedicated to the most advanced investigations conducted in the private sector. Cases range from digital forensics to corporate espionage and from overseas surveillance to threat-actor unmasking. Each DigiStream client has unique access to UpStream’s capabilities if and when advanced scenarios arise.
Research Director with UpStream Intelligence: Malcolm Rivera UpStream is DigiStream’s advanced investigations office. As the leader of the intelligence division, his work involves answering questions related to topics such as device forensics, corporate entity research, and threat actor unmasking. Prior to joining UpStream, Malcolm’s previous roles with DigiStream included Senior OSINT Specialist, a role in which he focused on developing company tradecraft, and Research Analyst, where he analyzed red flags and authored reports on litigants and insurance claimants. In addition to over five years’ experience as a private investigator, Malcolm has also worked as a journalist for South Kern Sol - a Kern County-based news publication.
Intelligence Analyst Claire Perkins:
Claire Perkins is an Intelligence Analyst for DigiStream’s sister-company, UpStream Intelligence, and currently provides a dynamic skillset in investigating identity theft, insurance fraud, and criminal activity cases, along with performing data protection and pre-employment check services. Before her role at UpStream Intelligence, Claire worked in the Venture Management Specialists department at DigiStream Investigations for several months. In 2021, she graduated from the University of South Wales with a Bachelor of Science in Forensic Investigation.
Please note the organizational chart for this process is the same as that enumerated in sections 2 & 3.
UpStream Intelligence is an advanced investigative solutions division within the DigiStream brand.
UpStream works as a close-knit team of specialists to assess, address, and advise on complex investigations with a tailored and strategic approach best befitting the needs of our clients.
UpStream was retained jointly by a DigiStream Central Valley client on a matter related to theft of trade secrets and the compromise of government bidding contracts. The client was a large land management company operating in California which held multi-million dollar contracts with a public utility. An executive in the company was suspected of working with the competition in exchange for a potentially #17..
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lucrative position. The subject was placed under surveillance in California and followed to Florida on a commercial airline flight. The subject was then surveilled in Florida where he met with individuals whom UpStream determined were competitors operating through a shell company. Sufficient evidence was collected to terminate the individual with cause. The fee allocation for UpStream was approximately $30,000.
4. Experience of Firm
In the last three (3) years DigiStream Central Valley, Inc., has provided the below total number of services (please note the totals below do not include specialized investigations provided by UpStream Intelligence):
Investigator Testimony 3
Surveillance 5970.5
Surveillance/w Travel 2
Alive & Well Check 10
Background Check 63
Criminal Check 1
DMV Check 16
DVD Extra Copies Beyond 7
Evidence Duplication 18
GeoSocial PLUS 1
GeoSocial Sweep 42
Investigator Service 159
Investigator Testimony 5
Locate 113
Medical Sweep 934
Metadata Package 16
Property Check 1
Recorded Statement 114
Records Retrieval 50
Research Time 64
Social Monitoring (Monthly) 184
SocialPro 126
SocialPro ELITE 267
SocialPro ELITE Upgrade 1
SocialPro PLUS 3588
Specialty Sweep 21
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Surveillance PLUS 5
Targeted Claims Investigation 29
Transcription (Minutes) 29
Client Name and Address County of Alameda, County Administrator’s Office 125 12th St #300
Oakland, CA 94607
Primary Point of Contact
Name, Position, Title, Phone,
Email, fax
Lucretia A. Akil
[email protected]
Office: 510-208-9848
Fax: 510-272-6815
Client Name and Address California State University
Office of the Chancelor
401 Golden Shore Blvd
Long Beach Ca 90802
Primary Point of Contact
Name, Position, Title, Phone,
Email, fax
Zachary Gifford
System Risk Manager
[email protected]
(562) 951-4580
Client Name and Address County of Tulare ; 2900 W. Burrel Avenue, Visalia CA 93291 Primary Point of Contact
Name, Position, Title, Phone,
Email, fax
Elisa Alanis
Risk Management Analyst
(559) 205-1215
[email protected]
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5. Cost, Schedule & Deadline Costs, Schedule & Deadline
5.a. Qualifications of the Firm
5. b. Professional Fees and Estimated Out-of-Pocket Expenses
SERVICE PORTFOLIO
The services listed below are DigiStream’s most core offerings and are intended for Marketing purposes only. Please contact a DigiStream consultant for additional services and corresponding pricing.
FIELD INVESTIGATIONS
SURVEILLANCE $1250AY
• travel time to and from the assignment
• on-site investigative time
• all mileage
• use of a late-model, company-owned surveillance vehicle and cutting-edge surveillance equipment • incidental expenses
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• Next Day Video® update
• a detailed surveillance report
• DVD copy of all footage obtained
• Red Flag Analysis
SURVEILLANCE PLUS $1850AY
• all standard surveillance features
• deployment of specialized remote camera, eliminating the need for most two-crew setups • case worked by dedicated team of investigators trained in advanced tactics • innovative case report including link analysis between subjects, locations, associates and intel gathered
• dedicated All-Source Analyst for real-time investigations and client questions
INTELLIGENCE
SOCIALPRO® PLUS $695
An in-depth view into a subject’s social media and background, which includes:
• social media investigation report
• full-spectrum national background check from top data providers • 60-days of complimentary social media monitoring
SOCIALPRO® ELITE $1295
Our most comprehensive investigative report. Designed as a turnkey solution for priority files, it includes:
• SocialPro report
• full-spectrum national background check from four top data providers • extended research time on file and a signed affidavit by Research Analyst • complimentary real-time social media monitoring for one year • metadata flash drive to preserve and authenticate all electronic evidence • verbal debriefing by the Intelligence team if desired GEOSOCIAL SWEEP $1495
A location-based search of a specific area to uncover photos, videos or comments about the incident in question. The report supplies contact information for potential witnesses and can provide geographical context about the area where the incident occurred.
• The GeoSocial PLUS examines content over time (i.e. previous accidents at the same intersection) • The GeoSocial ELITE is for high exposure incidents where there is a high volume of media, events are unfolding in real time, etc.
MEDICAL & SPECIALTY SWEEP $400 per 15 facilities searched Provides locations and often dates of treatment at hospitals, chiropractors, urgent care facilities, or gyms around a given radius.
RESEARCH & RECORD RETRIEVAL $125 per hour
Tailored investigations leveraging the full capabilities of DigiStream’s intelligence network and team of trained Research Analysts.
STATEMENTS $105 per hour ($.60 per mile)
Covers an array of services including recorded statements, person locates and scene investigations.
Each investigation is tailored to the specific needs of our clients and their unique case goals. #17..
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5.c. List of Previous Clients
• Amador County
• Avenal State Prison
• Butte County
• Calaveras County Water District
• California Department of
General Services
• California Department of Justice
• California Department of
Rehabilitation
• California State Fair
• City of Anderson
• City of Arvin
• City of Atwater
• City of Bakersfield
• City of Chowchilla
• City of Citrus Heights
• City of Delano
• City of Dinuba
• City of Dixon
• City of Exeter
• City of Fairfield
• City of Farmersville
• City of Folsom
• City of Fresno
• City of Half Moon Bay
• City of Hanford
• City of Huron
• City of Lathrop
• City of Lemoore
• City of Lincoln
• City of Livingston
• City of Lodi
• City of Los Banos
• City of Manteca
• City of Marysville
• City of McFarland
• City of Modesto
• City of Mount Shasta
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• City of Orange Cove
• City of Oroville
• City of Patterson
• City of Placerville
• City of Porterville
• City of Red Bluff
• City of Redding
• City of Reedley
• City of Rio Vista
• City of Rocklin
• City of Roseville
• City of Sanger
• City of Selma
• City of Tehachapi
• City of Tulare
• City of West Sacramento
• City of Willits
• City of Woodland
• City of Yuba City
• Fresno County
• Glenn County
• Humboldt County
• Inyo County
• Mader County
• Mendocino County
• Placer County
• Sacramento County
• Shasta County
• Stanislaus County
• Sutter County
• Trinity County
• Tulare County
• Tuolumne County
• El Dorado County Office of
Education
• Fresno County Superior Court
• Humboldt State University
• Kern County
• Kings County Office of
Education
• Kings County Sheriff’s Office
• Merced City School District
• Merced County Office of
Education
• Merced County
• San Joaquin County
• Shasta County Fire Dept.
• Shasta County Sherrif’s Dept.
• State of California Dept. of
Insure
• Superior Court of Shasta County
• Tulare City School District
• Yuba City Unified School District
5. d. Principal Staff Contacts
Katelyn Codner – Managing Partner
[email protected]
916.906.1161
Megan Kohls – Managing Partner
[email protected]
707.564.7804
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Ms. Krisha Lay
Re: Request for Proposal – Public Sector Consulting Firm April 8, 2024
12403332.1 LC300-008
I. QUALIFICATIONS
Liebert Cassidy Whitmore (“LCW”) has had the privilege of advising and representing public agencies and public safety agencies since our inception in 1980. The firm has offices in Los Angeles, San Diego, San Francisco, Fresno, and Sacramento, and is comprised of 125 attorneys.
Our combined expertise in federal and state employment laws and the laws of public safety employment, like the Public Safety Officers Procedural Bill of Rights (POBR) and the Firefighter Bill of Rights (FBOR), is unmatched. We have an unparalleled ability to take on matters with minimal lead-time and that involve complex issues. We are trusted advisors to our public agency and public safety clients, providing advice and representation on a myriad of issues, including advising on the conduct of internal affairs investigations, prosecuting disciplinary appeals, handling Pitchess motions, and defending against related litigation.
We also have a thriving investigation practice and have conducted and overseen hundreds of confidential and independent investigations involving the full range of workplace issues, including allegations of discrimination, harassment, whistleblower retaliation, financial violations and fraud, and misconduct and policy violations. We have significant experience conducting complex investigations, including those involving sensitive and high-profile matters, as well as those involving executive level management and elected officials. We handle investigations of employment and personnel issues including employee misconduct, harassment, discrimination, retaliation, policy and conduct violations, whistle-blowing, financial improprieties, and discipline-related issues. Some of our recent investigations have included allegations of racial discrimination, gender bias in promotion and pay, sexual orientation discrimination, sexual harassment, financial impropriety and defamation.
Our Investigations Practice Team is comprised of attorneys with experience and skill in conducting interviews, establishing rapport with witnesses, evidence gathering, making credibility assessments, factual analyses and report writing - skills that are necessary to conduct accurate, effective and defensible investigations. We also have extensive expertise in dealing with both cooperative and difficult witnesses. When necessary, we work with computer and other forensic experts for the gathering and analysis of evidence. Our investigators also know the significance of an investigation report in preparing for civil litigation. When required to testify at deposition, hearing or trial, our neutral and unbiased approach to investigations ensures that our investigators can be credible witnesses. In addition, as employment attorneys, we are aware of the critical importance of a timely investigation and when undertaking the role of independent investigator, we commit to meeting our clients’ timeline for completion. If requested and when appropriate, we will reach conclusions regarding violations of policy and make other recommendations.
As attorney investigators, we hold information obtained during investigations in strict confidence and offer employers all of the privileges that accompany an attorney-client relationship. #17..
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Ms. Krisha Lay
Re: Request for Proposal – Public Sector Consulting Firm April 8, 2024
12403332.1 LC300-008
In addition to conducting investigations, we regularly present workshops on how to conduct effective and defensible investigations. Our workshops identify the key components of a successful investigation including how and when to begin an investigation, who should conduct the investigation, how to maintain confidentiality, how to organize and execute an effective investigation, and how to evaluate the facts and take corrective action once the investigation is completed. We regularly present for the Association of Workplace Investigators as well as provide our own POST-approved course on Internal Affair Investigations.
Public Safety
When public safety agencies require advice on managing their response to critical incidents and officer misconduct, LCW attorneys are the experts that many agencies across the State look to first for help. We provide advice and counsel to law enforcement agencies on a myriad of personnel issues, including but not limited to: internal affairs investigations, responding to critical incidents, the Pitchess procedures for discovery of confidential peace officer personnel information, Brady material issues that arise, personnel policy audits, labor relations, POST training standards and advising on the POBR and the FBOR.
We represent public safety agencies in hundreds of discipline matters involving alleged unreasonable or excessive use of force and we thus have a deep understanding of these policies.
From this personnel-related perspective, we provide advice that is objective and focused on longterm solutions for the agency.
Clients value our cost-effective and thorough advocacy in support of the confidentiality of peace officer personnel records. Our Firm co-authored the California Public Employment Relations (CPER) Pocket Guide to the PBOR, which includes a chapter on the subject of peace officer personnel records. We also authored an amicus brief and argued at the California Supreme Court in support of peace officer privacy in the Long Beach Police Officers Association case. Our attorney investigators know the recent changes to California law that allow disclosure of certain peace officer records.
LCW advocates for law enforcement departments in administrative hearings (e.g., discipline hearings, grievance arbitrations, and unfair practice charge hearings), and we routinely defend law enforcement clients in civil litigation in both state and federal courts. On behalf of both employers and individually named defendants, LCW defends complex (class and collective actions) and high-profile litigation through trial and the appellate process (when necessary). Our appellate victories have shaped the way that public safety agencies conduct labor and employment relations on a daily basis.
Furthermore, a primary focus of our practice is to provide proactive advice to prevent our clients from becoming parties in an adversarial proceeding. We often accomplish this goal through advice and counsel, policy review and revision, and our renowned training programs.
Annually, members of the firm provide more than 900 presentations across the state through our #17..
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Ms. Krisha Lay
Re: Request for Proposal – Public Sector Consulting Firm April 8, 2024
12403332.1 LC300-008
Employment Relations Consortiums (ERCs), customized onsite training, webinars, seminars and conferences. We present on many public safety topics and in fact, we have a 2-day training seminar covering internal investigations called “Best Practices for Conducting Legally Fair and Compliant Internal Affairs Investigations.” Members of the firm frequently train police departments in their employment matters and have presented for the California Police Chiefs Association annual conference as well as other conferences throughout the State. LCW publishes our own monthly newsletter with news involving police employment legal issues called The Briefing Room, and a similar monthly newsletter pertaining to the fire service called Fire Watch. We have also authored our own reference guide, Principles of Public Safety Employment.
Our attorneys have extensive experience helping public employer clients audit their policies and practices as well. We provide review services to effectively meet and address the risks and challenges of this ever-changing legal landscape, drawing on our legal expertise from representing employers in all aspects of public safety labor and employment law. We frequently review personnel policies to bring them into compliance with the law and current best management practices.
Our extensive experience advising and representing clients as noted above makes us uniquely qualified as public safety investigators; we have extensive experience investigating under POBR and FBOR requirements.
We are committed to providing the City with superior service, timely, efficient work product, and the highest degree of professionalism.
II. PROFESSIONAL FEES AND ESTIMATED OUT-OF-POCKET EXPENSES Pricing offered on a time-and-materials basis would be based on our firm’s hourly billable rates:
Partners
Shelline Bennett............. $435
Morin I. Jacob ................ $435
Associates
Monica Espejo……… ... $330
Sue Ann Renfro.............. $345
Tony G. Carvalho........... $285
Invoices are payable upon receipt and due within 30 days.
We do not bill for secretarial or word processing time or telephone charges. Facsimile transmissions are billed at the rate of $.50 per page for outgoing faxes only and we make every #17..
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Ms. Krisha Lay
Re: Request for Proposal – Public Sector Consulting Firm April 8, 2024
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effort to email documents rather than fax them. Copying is charged at fifteen cents ($.15) per page. Additional prints, postage and special deliveries (i.e. Fed-Ex, UPS, DHL, messenger service), and other hired deliveries completed at the request of the client or necessary to comply with applicable deadlines will also be billed to the client.
Our firm bills for travel time at the attorney’s hourly rate, for the time it takes to travel from the office to our client and back, or the time it takes from the attorney’s residence to our client and back, whichever is less.
We always strive to work as efficiently as possible to minimize the costs to our clients. When possible, we will utilize an associate or a paralegal to assist with matters so that the City can benefit from the lower billing rate. We are also aware that there are times that it is financially prudent for the City to have a higher billing partner complete a task than a lower billing associate due to the fact that the partner may be able to complete the task in less time than an associate.
III. PREVIOUS CLIENTS
Because of confidentiality issues, we do not identify those employers for whom we have conducted outside investigations.
As the largest public sector labor and employment law firm in the state, we are fortunate to work with hundreds of public agencies on a wide range of matters. In the last three years, we have provided legal and training services to nearly 1,000 agencies. Below is a representative sample of clients for which we provided employment-related legal services.
Alameda County Housing Authority
City of Alameda
Alpine County
City of American Canyon
Amador County
Aptos/La Selva Fire Protection City
Town of Atherton
Bay Area Rapid Transit Authority (BART)
Ben Lomond Fire Protection City
Blue Lake Fire Protection City
City of Berkeley
City of Brentwood
Butte County
California Public Utilities Commission
California Department of Human
Resources
California Commission on Judicial
City of El Cerrito
El Dorado County
City of Elk Grove
City of Emeryville
City of Eureka
Feather River Recreation & Parks City
City of Fremont
City of Gilroy
City of Hayward
Humboldt Transit Authority
Kings County
City of Lathrop
City of Lakeport
Las Gallinas Valley Sanitary City
City of Lincoln
City of Lompoc
County of Marin
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Ms. Krisha Lay
Re: Request for Proposal – Public Sector Consulting Firm April 8, 2024
12403332.1 LC300-008
Performance
California Sanitation Risk
Management Authority
City of Ceres
City of Chico
City of Citrus Heights
Colusa County
City of Colfax
Contra Costa Housing Authority
Contra Costa County
City of Cotati
City of Cupertino
City of Daly City
Dublin San Ramon Services City
City of East Palo Alto
City of Napa
City of Nevada
Nevada County
City of Newark
City of Novato
Novato Fire Protection City
Oakland Housing Authority
City of Oakley
City of Orinda
City of Oroville
City of Pacifica
City of Palo Alto
City of Petaluma
City of Pinole
City of Pleasant Hill
Pleasant Hill Recreation & Park City
Placer County
City of Pleasanton
Plumas County
City of Redding
City of Sausalito
County of Shasta
Siskiyou County
County of Sonoma
City of Sonoma
Stanislaus County
City of Stockton
Port of Stockton
Sanitary City No.1 of Marin County
City of Marina
Mariposa County
City of Manteca
City of Martinez
City of Menlo Park
Menlo Park Fire Protection City
Merced County
Merced County Housing Authority
Merced County Association of Governments
Mendocino County
Midpeninsula Regional Open Space City
Monterey County
Monterey County Regional Fire City
Napa County
City of Red Bluff
City of Richmond
City of Rocklin
City of Roseville
Sacramento Regional Fire/EMA
Communications Center
Sacramento Metropolitan Fire
City
County of Sacramento
Housing Authority of the County of San
Joaquin
City of San Pablo
City of Santa Rosa
City of San Ramon
San Mateo County
City of San Carlos
Belmont-San Carlos Fire Department
San Mateo County Harbor City
Santa Clara County Fire Department
Santa Clara County Transportation Authority
Town of Truckee
City of Ukiah
City of Vacaville
City of Vallejo
Valley of the Moon Fire Protection
City
City of Walnut Creek
Yuba County
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Ms. Krisha Lay
Re: Request for Proposal – Public Sector Consulting Firm April 8, 2024
12403332.1 LC300-008
Sutter County
City of Tracy
Zone 7 Water Agency
IV. PRINICPAL STAFF CONTACTS
Our investigators are experts in employment and labor law and their expertise results in investigations that are focused, thorough and efficient. Hiring a member of LCW’s Investigations Practice Team means that the City to focus on business-critical tasks while knowing the investigation is being conducted by an experienced, unbiased attorney.
We recommend the following attorney-investigators for the City. Their complete resumes are included for your reference along with brief biographies below.
Shelline Bennett
Office Managing Partner, Fresno and Sacramento
JD, University of California, Hastings College of Law
BA, California State University, Fresno
Shelline Bennett has represented management in labor and employmentlaw matters for over 24 years. She has worked with both private and public employers, including cities, counties, special districts, housing authorities, and community colleges, as well as nonprofit organizations.
She has an extensive litigation background in both federal and state courts.
Shelline's practice also includes representation in disciplinary administrative hearings, arbitrations, mediations, and labor relations and negotiations, including serving as lead negotiator at bargaining tables. Shelline has served as a factfinding panel member in a number of factfindings under both the MMBA and EERA. She advises and counsels in all labor and employment-law matters, including the meet and confer process, wage and hour issues, disability and leave issues, and due process and disciplinary matters. Shelline represents employers not only in court but before the California Civil Rights Department, the Equal Employment Opportunity Commission, the Labor Commissioner, the Workers' Compensation Appeals Board, the California Unemployment Insurance Appeals Board, arbitrators, and Personnel and Civil Service Commissions.
Shelline is an Association of Workplace Investigators (AWI) Certificate Holder and conducts trainings for AWI. Shelline serves on the Executive Committee of the firm's Investigation Practice Group. An experienced investigator, Shelline provides guidance to LCW investigators, establishes firmwide best practices in the area and conducts harassment, discrimination, retaliation, and disciplinary-related investigations, including those of a sensitive nature and concerning high profile individuals. Shelline has extensive experience overseeing the entire #17..
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Re: Request for Proposal – Public Sector Consulting Firm April 8, 2024
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investigation process, including retaining outside investigators, preparing and analyzing investigation findings of fact, working with agencies in open and closed sessions, and providing legal conclusions and recommendations not only related to employees but elected individuals.
As Managing Partner of the Fresno and Sacramento offices, Shelline brings her extensive legal and management expertise to the numerous trainings and workshops she presents on topics including discrimination, harassment, retaliation, wage and hour, managing performance through evaluations, medical leave, discipline, hiring, firing, legal updates, Brown Act, ethics, and prevention of litigation. Shelline was recognized as a Northern California Super Lawyer in the years 2004, 2006 and 2008-2019. Shelline was also chosen as one of the Fresno Magazine's "Employment and Labor Super Lawyers" in 2009, and named one of the "Top Women Attorneys in Northern California" by San Francisco Magazine.
Shelline has served as the Chair, Vice Chair, and Secretary/Treasurer for the Litigation Section of the Federal Bar Association.
Morin I. Jacob
Office Managing Partner, San Francisco
Harvard University Kennedy School of Government, Senior Executives in State and Local Government
JD, University of San Francisco School of Law
BA, California State University, Stanislaus
Morin Jacob is the Managing Partner of the firm's San Francisco office, and is a seasoned litigator who handles all facets of defense-side employment litigation, from pre-litigation through jury trial and appeal.
Morin represents our clients on all labor and employment law, primarily working with Cities and Public Safety Departments, and also representing Counties and Special Cities.
Morin also has extensive experience in advising on, and conducting, internal affairs investigations and other workplace investigations. Morin has also testified as a witness in legal proceedings, defending her workplace investigations. She holds a certificate from the Association of Workplace Investigators and is a member of LCW’s Investigations Executive Team. Morin has conducted investigations into allegations involving embezzlement of sevenfigure dollar amounts, harassment, discrimination, retaliation, workplace violence, internal affairs investigations for police departments, and FBOR investigations for fire departments. She also conducts Title IX investigations for universities in areas including on and off-campus sexual assaults and harassment.
Prior to becoming the Managing Partner of the San Francisco office, Morin served as the Chairperson of the firm's statewide Public Safety Practice Group, which provides litigation and #17..
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Ms. Krisha Lay
Re: Request for Proposal – Public Sector Consulting Firm April 8, 2024
12403332.1 LC300-008
advice and counsel services to police and fire agencies throughout California. As a public safety lawyer, Morin represents agencies in binding arbitrations and other discipline appeal hearings.
For example, she represents BART Police Department and handles some discipline cases involving peace officers, even having secured the termination of a peace officer who was involved in the Oscar Grant shooting.
Morin is one of the firm's top litigators. Morin has first-chaired jury trials and successfully secured defense verdicts on behalf of her clients, even after appeal. Her jury trial experience includes defending against claims of retaliation for engaging in free speech, disability discrimination, sexual harassment, retaliation, and whistleblower allegations. Morin has also secured wins on summary judgment motions, motions to dismiss, motions for judgment on the pleadings, and demurrers. In addition to trials and arbitrations, she represents clients in administrative proceedings, including in arbitrations and before the CDCR, EEOC, DLSE, PERB, and EDD.
Morin handles high-profile litigation matters, defending lawsuits brought by heads of agencies such as County Administrative Officers, heads of departments, such as Finance Directors, and inhouse attorneys such as Deputy City Attorneys and Deputy County Counsel. Morin has also represented agencies and high-profile individual defendants in litigation, such as elected Board and City Council members, Fire Chiefs, Sheriffs, County Counsel, Controllers, and Police Chiefs.
Tony G. Carvalho
Associate, Fresno
JD, University of San Diego School of Law
MA, California State University, Fresno
BA, California State University, Fresno
Tony is a seasoned workplace investigator who regularly conducting investigations in matters pertaining to disciplinary issues, harassment and discrimination claims, wage and hour issues, labor relations, and reasonable accommodation and the disability interactive process.
Tony’s main areas of focus include police and fire investigatory/disciplinary issues, harassment and discrimination claims of all types, CA Labor Code/FLSA wage and hour issues, disability interactive process and reasonable accommodation, and labor relations.
Part of Tony’s advice and counsel practice concerns updates to client personnel policies for compliance with ever-changing state and federal law. Currently, Tony spends significant time #17..
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Ms. Krisha Lay
Re: Request for Proposal – Public Sector Consulting Firm April 8, 2024
12403332.1 LC300-008
conducting workplace investigations, with a specialty in police and fire personnel internal investigations.
Tony’s practice also includes handling disciplinary appeals for LCW’s public agency clients, with an emphasis on handling disciplinary cases of public safety employees, including fire and police/sheriff personnel. Tony handles such cases from their inception through final decisions before arbitrators, administrative law judges, and local personnel commissions.
Tony also has significant experience in litigation, government claims, and EEOC/CDCR complaints, including drafting pleadings, motions, memoranda, written discovery, mediation briefs, and employer responses to EEOC/CDCR complaints.
Monica Espejo
Associate, Sacramento
JD, University of the Pacific, McGeorge School of Law
BA, San Francisco Conservatory of Music
Monica represents employers in matters pertaining to labor & employment and education. Monica works closely with our clients to guide them on a wide array of issues including employee and student discipline issues, investigations, terminations, contract disputes, and leave and accommodation issues. She also defends public agency clients against claims of harassment, discrimination, and retaliation.
Monica regularly investigates claims of harassment, discrimination, and retaliation. Monica is an excellent listener, an impartial observer, and makes findings that are fully supported by the evidence. She understands that each investigation requires a tailored approach to fully address the allegations, and has served as an impartial investigator for sensitive and complex complaints in the workplace. Monica has extensive employment litigation experience and, as an experienced litigator, utilizes her knowledge and experience to conduct thorough, unbiased, and legally compliant investigations.
Monica’s practice includes handling disputes through all phases of litigation from the pleading stage through trial, and she draws on this experience to help clients avoid litigation. Monica also provides advice and counsel to clients on employment-related claims and has conducted investigations into allegations of harassment and misconduct.
Monica is fluent in Spanish.
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Ms. Krisha Lay
Re: Request for Proposal – Public Sector Consulting Firm April 8, 2024
12403332.1 LC300-008
Sue Ann Renfro
Associate, Fresno
JD, San Joaquin College of Law
BA, Colorado State University
Sue has over 24 years of litigation experience assisting educational institutions and public sector agencies in a variety of education and employment law matters. She has served as legal counsel to elementary, secondary and community college institutions for both the public and private sectors and has handled the defense of employers in actions brought by employees, former employees, applicants, and students. Sue has over 15 years of first-chair experience and has prevailed on behalf of clients in over 75% of the cases she has tried.
Sue is an experienced investigator who regularly conducts investigations into a variety of allegations, including discrimination, harassment, retaliation, ethics/standards of conduct, bullying, misconduct, and performance failures. She conducts investigations for a wide range of clients, including both public and private employers. Sue conducts investigation for non-profits and educational institutions. Sue’s experience includes investigations involving sensitive allegations, high profile individuals, and matters with significant media coverage.
Recently, Sue conducted an investigation whose allegations subsequently gave rise to a Grand Jury inquiry. The Grand Jury considered Sue’s investigation findings, and significant portions of her report were used as a part of the Grand Jury’s own determination.
Sue works with an eye to the future and potential litigation. Clients rely on Sue for thorough and timely work as well as for effective communications, including with clients’ governing boards.
In addition to her own investigation work, Sue assists clients in the retention of outside investigators. She helps clients form the scope of an investigation, oversees the process, and assists clients in evaluating appropriate action based on the investigation findings.
V. ADDITIONAL SERVICES
We have monthly newsletters on different topics that we provide to our clients free of charge to keep them aware of changes in the law, including Client Update and Legislative Roundup. We provide Special Bulletins via email for breaking matters that clients need to know. Additionally, our firm has workbooks available that are updated regularly to apprise clients on a wealth of topics within labor and employment law.
We provide review services to effectively meet and address the risks and challenges of this everchanging legal landscape, drawing on our legal expertise from representing employers in all aspects of labor and employment law. We use systematic auditing processes to ensure #17..
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Ms. Krisha Lay
Re: Request for Proposal – Public Sector Consulting Firm April 8, 2024
12403332.1 LC300-008
compliance with the law and best management practices and provide practical recommendations. Our expertise in this area is reflected in LCW’s Liebert Library, which is our online collection of trusted reference materials and is an online resource for agency’s policy needs.
Our attorneys have extensive experience helping public employer clients audit their policies and practices. We can provide:
• Personnel Policies / Employee Handbook Audits
• Wage and Hour / Fair Labor Standards Act Audits
• Labor Agreement / MOU and Collective Bargaining Audits • Retirement and Benefits Audits
• Health Benefit Audits, including HIPAA and the Affordable Care Act • Human Resources and Management Audits
LCW has the capacity and availability to serve the City efficiently and effectively. As a matter of regular practice, we respond to calls and emails swiftly. As a local firm, we have the essential knowledge and relationships to effectively serve the City. Furthermore, the City would have access to all of the firm’s resources, statewide, including our associate attorneys, paralegals and our support specialists.
The City would have access to all of the firm’s resources, statewide, including our associate attorneys, paralegals and our litigation support specialist.
Conclusion
Thank you for the opportunity to submit our qualifications. We welcome the opportunity to assist the City of Modesto in investigations.
If we can provide additional information or if you would like to interview with any of our attorneys please contact me at (559) 256-7800 or [email protected]. #17..
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Shelline Bennett | © 2024 Liebert Cassidy Whitmore. All rights reserved.
Shelline
Bennett
Fresno and
Sacramento
Office Managing
Partner
559.256.7800
[email protected]
Shelline brings her 30 years of practicing exclusively in employment law, including at an international-law firm litigating cases, to the investigation practice. Shelline has represented management her entire career. With her knowledge and extensive experience, employers request Shelline for their high-level and high profile investigations into all employment issues, including harassment, discrimination, retaliation, and disciplinary-related investigations.
Shelline is also regularly called upon to train investigators in conducting legally compliant, thorough investigations that can withstand litigation scrutiny.
Shelline has served as a managing partner for over 25 years. She resides and works out of San Diego and regularly travels up and down the state managing offices in Central California and Sacramento. Shelline co-manages the firm’s investigation practice. In addition to serving as an investigator, Shelline has extensive experience overseeing the entire investigation process and can assist employers and their HR professionals with all aspects of an investigation, including retaining outside investigators, preparing the scope of investigation, analyzing investigation findings of fact, providing legal conclusions and recommendations, preparing investigators for testimony, and working with key employees and board members throughout the process.
Shelline regularly provides training to both in-house and independent investigators. She is a core faculty member of LCW’s Train the Investigator program, which meets the CRD Guidelines for investigators. Shelline is an Association of Workplace Investigators (AWI) Certificate Holder and conducts trainings for AWI. Shelline can be watched monthly on a TV employment-law update, where she speaks about investigation best practices.
Shelline earned her Juris Doctorate from the University of California, Hastings College of Law. #17..
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Shelline Bennett | © 2024 Liebert Cassidy Whitmore. All rights reserved.
Shelline has continued to be recognized consistently throughout her career including as a Northern California Super Lawyer, Top Women Attorneys in Northern California, and as a Labor and Employment Super Lawyer.
Education
JD, UC College of the Law, San Francisco (formerly UC Hastings) BA, California State University, Fresno
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Morin I. Jacob | © 2024 Liebert Cassidy Whitmore. All rights reserved.
Morin I.
Jacob
San Francisco
Managing
Partner
415.512.3000
[email protected]
Morin Jacob is the Managing Partner of the firm’s San Francisco office and co-manages the firm’s Investigations Practice Group. She has conducted workplace investigations into allegations including mass shootings and violence in the workplace; embezzlement of sevenfigure dollar amounts; claims of harassment, discrimination, and retaliation; allegations of fraud and theft; sexual misconduct; and failure to perform job duties. Morin has also testified as a witness in arbitrations and other legal proceedings, defending her workplace investigations. In addition to conducting workplace investigations, Morin oversees investigations conducted by other investigators.
Morin is regarded an expert in Investigations and is regularly invited to present at state and national conferences, such as for the Association of Workplace Investigators. Twice Morin has ranked in the “Top 75 Labor & Employment Lawyers” list published by the California Daily Journal, a premier publication for lawyers. Morin is an Associate of Workplace Investigators Certificate Holder (AWI-CH), after having completed the AWI Training Institute.
Morin earned her Bachelor’s degree from California State University, Stanislaus and her Juris Doctorate from the University of San Francisco School of Law. Through a competitive process, Morin attended the Senior Executives in State and Local Government course offered by Harvard University’s John F. Kennedy School of Government, where she studied cutting-edge policy issues.
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Morin I. Jacob | © 2024 Liebert Cassidy Whitmore. All rights reserved.
Education
JD, University of San Francisco School of Law
Harvard University Kennedy School of Government, Senior Executives in State and Local Government
BA, California State University, Stanislaus
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Tony G. Carvalho | © 2024 Liebert Cassidy Whitmore. All rights reserved.
Tony G.
Carvalho
Associate
559.256.7803
[email protected]
Tony G. Carvalho is a seasoned workplace investigator, regularly conducting investigations in matters pertaining to disciplinary issues, harassment and discrimination claims, wage and hour issues, labor relations, and reasonable accommodation & the disability interactive process.
In addition to conducting workplace investigations, Tony provides advice and counsel in all matters pertaining to employment and labor law. Tony also has significant experience in litigation, government claims, and EEOC/DFEH complaints, including drafting pleadings, motions, memoranda, written discovery, mediation briefs, and employer responses to EEOC/DFEH complaints. Tony’s investigation work is informed by his background in employment litigation.
Prior to joining Liebert Cassidy Whitmore, Tony received his JD from the University of San Diego School of Law, magna cum laude, and received his MA and BA in History from California State University, Fresno. Before pursuing a career as an attorney, Tony helped to manage his family’s farm in California’s Central Valley.
Education
JD, University of San Diego School of Law
MA, California State University, Fresno
BA, California State University, Fresno
#17..
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Monica M. Espejo | © 2024 Liebert Cassidy Whitmore. All rights reserved.
Monica M.
Espejo
Associate
916.584.7021
[email protected]
Monica has handled a variety of investigations and regularly investigates claims of harassment, discrimination, and retaliation. She understands that each investigation requires a tailored approach to fully address the allegations, and has served as an impartial investigator for sensitive and complex complaints in the workplace. Monica has extensive employment litigation experience and, as an experienced litigator, utilizes her knowledge and experience to conduct thorough, unbiased, and legally compliant investigations.
Monica graduated from the University of the Pacific, McGeorge School of Law in 2007. Prior to law school, Monica graduated from the San Francisco Conservatory of Music, where she majored in Classical Guitar Performance.
Education
JD, University of the Pacific, McGeorge School of Law
BA, San Francisco Conservatory of Music
#17..
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Sue Ann Renfro | © 2024 Liebert Cassidy Whitmore. All rights reserved.
Sue Ann
Renfro
Associate
559.256.7814
[email protected]
Sue Renfro is an attorney in LCW’s Fresno Office. Sue is an experienced investigator who regularly conducts investigations into a variety of allegations, including discrimination, harassment, retaliation, ethics/standards of conduct, bullying, misconduct, and performance failures. She conducts investigations for a wide range of clients, including both public and private employers. Sue conducts investigation for non-profits and educational institutions.
Sue’s experience includes investigations involving sensitive allegations, high profile individuals, and matters with significant media coverage.
Recently, Sue conducted an investigation whose allegations subsequently gave rise to a Grand Jury inquiry. The Grand Jury considered Sue’s investigation findings, and significant portions of her report were used as a part of the Grand Jury’s own determination.
Sue brings over 20 years of litigation experience to her work as an investigator. That experience provides a special lens as Sue conducts interviews and writes reports. Sue works with an eye to the future and potential litigation. Clients rely on Sue for thorough and timely work as well as for effective communications, including with clients’ governing boards.
In addition to her own investigation work, Sue assists clients in the retention of outside investigators. She helps clients form the scope of an investigation, oversees the process, and assists clients in evaluating appropriate action based on the investigation findings.
Sue earned her Bachelor of Arts in Technical Journalism from Colorado State University and her Juris Doctor from San Joaquin College of Law.
Education
JD, San Joaquin College of Law
BA, Colorado State University
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
August 13, 2024
Date: July 22, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Bill Sandhu, Director of Public Works
SUBJECT: Purchase Order Increase for Six Ford Interceptors with Tracy Ford CONTACT: Patrick Crowley, Senior Public Works Manager, [email protected], 209-342-2274
DESCRIPTION:
Consider approving the price increase of Purchase Order 216609 for Tracy Ford, Tracy, CA by $96,302 for six Ford Interceptor Patrol Sport Utility Vehicles for a revised total amount not to exceed $337,727. (Funding Source: Fleet Replacement Fund) STRATEGIC PLAN ELEMENT:
This action supports the City of Modesto 2020-2025 Strategic Plan Area of Focus: Governance and Service Delivery: “Build community trust in City government through responsive, transparent and efficient service delivery; Goal H: achieve long-term financial sustainability.
BACKGROUND:
On September 28, 2021, the Purchasing Division issued Request for Bid (RFB) 2122-22 for six Ford Police Interceptors on the City’s Public Bidding site, PlanetBids. Prospective bidders were notified online and via email of the bid opportunity. Eleven companies downloaded the Request for Bid (RFB) document. On October 16, 2021, bids were formally opened in the City Clerk’s office and broadcast via Microsoft Teams Livestream.
Four vendors chose to respond and there were no local bids received. Based on providing the lowest responsive and responsible bid, City staff recommended awarding the six Ford Police Interceptors to Tracy Ford, Tracy, CA for a total cost not to exceed $241,425. On January 11, 2022, by Resolution 2022-015, Council approved the purchase of the six Police Interceptors from Tracy Ford, Tracy, CA.
DISCUSSION:
After the Purchase Order was issued to Tracy Ford, it was expected to make the next order bank for Ford Motor Company’s manufacturing schedule from the factory. Unfortunately, the industry-wide parts supply chain experienced significant delays. Additionally, the dealership had a significant turnover in staff similar to the one experienced by the Public Works Fleet Division resulting in a loss of focus on tracking the order. Since then, Finance, Purchasing and Public Works Administration staff worked with the dealership to determine the status of the #18..
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City Council, August 13, 2024
Purchase Order Increase for Six Ford Interceptors with Tracy Ford
Purchase Order. The order has been fulfilled through Ford Motor Company and delivered to the dealership. Unfortunately, due to the delay in receiving the vehicles, prices have increased, by an additional $96,302 for a new cost of $337,727, which is an increase in cost of 40 percent (40%).
Modesto Municipal Code Section 8-3.203 generally requires all purchases which meet or exceed $100,000 for material, equipment, or contractual services to be formally bid. However, exceptions to the formal bidding process are granted in MMC 8-3.204(f) “Where the Purchasing Manager, in his or her discretion, determines that it is appropriate to amend the services or goods provided under an existing agreement to include additional similar goods or services, of limited quantity or scope, in order to increase efficiency and avoid delays or disruptions to City projects or services.”
The cost increase over the original bid is in alignment with current pricing and it is the recommendation from staff to increase the purchase order to continue the order and delivery of the law enforcement vehicles.
FISCAL IMPACT:
The anticipated cost increase of $96,302 will be absorbed within the current Public Works Fleet Replacement Fund in account 5409-53246-57003 budget.
Staff examined the price increase against the recent order placed through the State of California, Department of General Services – Procurement Division, Statewide Contract 1-22-23-14C Enforcement Vehicles, Police Pursuit. The cost comparison is outlined below.
Cost Comparison Table
COMMITTEE RECOMMENDATION:
This item was presented to Finance Committee on June 24, 2024, and was recommended to forward to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the increase of Purchase Order 216609 with Tracy Ford, Tracy, CA for six Ford Interceptor Patrol Sport Utility Vehicles by $96,302 from $241,425 for a revised total amount not to exceed $337,727, and authorizing the Purchasing Manager, or her designee, to execute the Purchase Order price increase.
Agreement Per Unit Cost Increase Total Cost % Diff. State Contract $61,158.24 N/A $61,158.24 N/A Tracy Ford $40,237.34 $16,050.32 $56,287.66 40%
Variance ($20,920.90) $16,050.32 ($4,870.58)
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City Council, August 13, 2024
Purchase Order Increase for Six Ford Interceptors with Tracy Ford
Approved by:
Bill Sandhu, Director of Public Works
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Purchase Order 216609
3. Tracy Ford Invoice
4. Tracy Ford Price Breakdown
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1 2024-?
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION APPROVING THE INCREASE OF PURCHASE ORDER 216609
WITH TRACY FORD, TRACY, CA FOR SIX FORD INTERCEPTOR PATROL SPORT UTILITY VEHICLES BY $96,302 FROM $241,425 FOR A REVISED TOTAL AMOUNT NOT TO EXCEED $337,727, AND AUTHORIZING THE
PURCHASING MANAGER, OR HER DESIGNEE, TO EXECUTE THE
PURCHASE ORDER PRICE INCREASE
WHEREAS, Ford Police Interceptor vehicles are used in daily law enforcement activities citywide by the Modesto Police Department; and WHEREAS, on September 28, 2021, the Purchasing Division issued RFB 2122- 22 for Six Ford Police Interceptors on the City’s website under commodity codes 07000- Automotive Vehicles; and
WHEREAS, eleven companies chose to download the RFB document, four vendors chose to submit a bid, there was no local bid received; and WHEREAS, on October 16, 2021 bids were formally opened in the City Clerk’s office and Tracy Ford, Tracy, CA, was the only responsive and responsible bidder, and City staff recommended awarding the purchase of six Ford Police Interceptors to Tracy Ford, Tracy, CA for a total cost not to exceed $241,425; and WHEREAS, Modesto Municipal Code Section 8-3.203 requires all purchases, which meet or exceed $100,000 for material, equipment or contractual services to be formally bid; and
WHEREAS, on January 11, 2022, by Resolution 2022-015, Council approved the purchase of the six Police Interceptors from Tracy Ford, Tracy, CA; and #18..
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2 2024-?
WHEREAS, due to a delay in receiving the vehicles, prices increased by an additional $96,302 for a new cost of $337,727, which is an increase in cost of 40 percent; and
WHEREAS, exceptions to the formal bidding process are granted in MMC 8-
3.204(f) “where the Purchasing Manager, in his or her discretion, determines that it is appropriate to amend the services or goods provided under an existing agreement to include additional similar goods or services, of limited quantity or scope, in order to increase efficiency and avoid delays or disruptions to City projects or services.”; and WHEREAS, the cost increase over the original bid is in alignment with current pricing and it is the recommendation from staff to increase the purchase order to continue the order and delivery of the law enforcement vehicles; and WHEREAS, the Finance Committee considered this item on June 24, 2024, and recommended approval by the City Council.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the price increase of Purchase Order 216609 for Tracy Ford, Tracy, CA by $96,302 for six Ford Interceptor Patrol Sport Utility vehicles for a total amount not to exceed $337,727.
BE IT FURTHER RESOLVED that the Purchasing Manager, or her designee, is hereby authorized to execute the price increase.
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3 2024-?
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 13th day of August 2024, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: _____________________________
DIANE NAYARES-PEREZ, CMC City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M SANCHEZ, City Attorney
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PURCHASE ORDER
City of Modesto
Purchasing Division
1010 Tenth St.,Suite 5300
Modesto, CA, 95354
Tel: (209) 577-5405 Fax: (209) 544-8821
Purchase Order No: 216609
Deliver By : 15-JAN-2022
FOB :
Terms : Net 30
Buyer : Kimberly Presson
Requestor : Cynthia Sypolt
Issue Date : 18-JAN-2022
Page : 1 of 2 Revision:
Vendor: Ship To: Invoice To:
TRACY FORD
3500 AUTO PLAZA WAY
TRACY,CA, 95304POL_SPACE?>
PW.Fleet Services Administration
1609 8th Street
Modesto, CA 95354
City of Modesto Accounts Payable
PO Box 642
Modesto, CA 95353
Vendor Contact: Email: Fax:
LINE QTY UOM ITEM - DESCRIPTION UNIT PRICE EXTENDED PRICE 1 6 Each NEW AND UNUSED - 4-DOOR FORD POLICE
INTERCEPTOR, ALL WHEEL DRIVE UTILITY
VEHICLE WITH 500A, POLICE INTERCEPTOR
EQUIPMENT GROUPFY 21/22, LINES 15-20
37,294.0500 223,764.30
2 6 Each SALES TAXFY 21/22, LINES 15-20 2,934.5400 17,607.24 3 6 Each TIRE RECYCLING FEEFY 21/22, LINES 15-20 8.7500 52.50 Note to Supplier: RESO #2022-15 for RFB 2122-22
SALES TAX: $ 0.00
IMPORTANT INSTRUCTIONS
1. EMAIL INVOICE PROMPTLY TO [email protected].
2. INVOICE EACH PURCHASE ORDER SEPARATELY.
3. ALL ITEMS F.O.B DESTINATION UNLESS OTHERWISE SPECIFIED.
4. CITY RESALE PERMIT NO.SRAM 28-043875.
5. ORDER SUBJECT TO CONDITIONS SET FORTH ON FACE OF ORDER AND ATTACHED TERMS AND CONDITIONS.
TOTAL: $ 241,424.04
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PURCHASE ORDER-TERMS & CONDITIONS
1.PAYMENTS: Payments shall be made upon submission of itemized invoices in duplicate at the prices stipulated herein for supplies delivered and accepted or services rendered and accepted, less deductions, if any, as herein provided. Payment for partial deliveries may be made whenever amounts due so warrant or when requested by the Vendor and approved by the Purchasing Manager.
2.INSPECTION: All materials and workmanship are subject to inspection and test by the City for compliance with specifications as included herein, within a reasonable time after delivery. In the event articles or services are detective or not in conformity with this order, the City shall have the rights to either reject the items or require correction. Defective articles or services shall be removed from City premises and/or corrected by and at the expense of the Vendor. Failure to inspect and accept or reject shall not relieve the Vendor from responsibility for compliance with specifications. Final acceptance shall be conclusive except as regards to latent defects, fraud, or such gross mistakes as amount to fraud.
3.RESPONSIBILITY: Unless otherwise specified, the Vendor shall be responsible for all items covered by this Purchase Order until delivered at the designated delivery point and the Vendor shall bear all risks as to items rejected or requiring correction after notice of such rejection or correction is given.
4.SHIPMENT: All items F.O.B. Destination unless otherwise specified. When authorized, freight to be prepaid. Do not ship collect. Original receipted freight bill must accompany invoice. Shipment must be made within the time stated on Purchase Order, failing which City reserves the right to purchase elsewhere and Charge Vendor with any loss incurred, unless delay in making shipment is due to unforeseeable causes beyond the control, and without the fault or negligence of the Vendor.
5.CHANGES: This Purchase Order may at any time, by written order, be changed in regard to the materials or service to be furnished, quantities ordered, unit price, discount, delivery point or arrange¬ments, terms or any other matters affecting a valid order. In the event such change causes an Increase or decrease in the cost of performance hereunder, and equitable adjustment will be made for the cost thereof, subject to the approval of the Purchasing Manager, and written notice given therefore.
6.WARRANTY: Notwithstanding any other provisions of the order, Vendor warrants that the materials, supplies or other services furnished shall be of the most suitable grade and exactly as specified in this order. Such warranty shall include the following:
performance, workmanship, labor, materials, seller's design or engineering contributions. If a defect is discovered In any item of materials, supplies or services covered in this order, Vendor shall correct at its expense, including transportation/freight, such defects as are reported within one year of final acceptance. Upon expiration of the applicable warranty period. all such liability shall terminate except for fraud, or such gross mistakes as amount to fraud, latent defects or specific failure to comply with the terms of this order.
7.DISCOUNT: In connection with any discount offered, time will be computed from date of delivery to carrier when delivery and acceptance are at point of origin, or from date of delivery and acceptance if at destination or from date correct Invoice is received by City if invoice date is later than date of delivery.
8.INSURANCE: All orders where work, maintenance, or service is performed on City property require appropriate insurance and indemnification. Services will be suspended without proper insurance certificates being on file with the City. Contact the City Purchasing Office to verify the type and amount of insurance required.
9.EXEMPTIONS: The City is exempt from payment of Federal Excise Tax. All invoices shall be exclusive of such excise lax. If purchase is not subject to Sales Tax, the statement tor resale will appear in body of Purchase Order.
10.INFRINGEMENT: Vendor agrees to protect. indemnify and save harmless the City as buyer, its agents, officers, employees, and volunteers from any claim, loss or damage from infringement of trademarks patents, copyrights and unfair competition action with respect to this Purchase Order.
11.INDEMNITY: The Vendor shall hold the City,its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims,losses,liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of Vendor, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement. Vendor's obligation to defend, indemnify, and hold the City, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for Vendor to procure and maintain a policy of insurance. In the indemnity clause contained herein Vendor agrees to defend, indemnify and hold City harmless from the negligence of its employees, among other risks. With reference to the foregoing, the parties agree that all risk of loss, including but not limited to damages, property losses and defense of third party suits, arising out of or relating to the operation of City owned vehicles by Vendor's employees is apportioned to Vendor in accordance with the provisions contained in Indemnity.
12.GOVERNING LAW: This Purchase Order shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, U.S.A., without giving effect to its conflicts of laws, provisions or principles.
13.LIABILITY: The City shall not be responsible for any damage that may accrue by reason of the death or injury of the person of the Vendor's officers, agents, employees, invitees, or licensees, or be set up at any time because of personal injury or damage to property sustained by any other person or persons, which may have been caused or contributed to, approximately or remotely, by reason of or in the course of performance of the Purchase Order. The Vendor shall assume full responsibility for the defense of any claim arising under the Purchase Order and the Vendor shall save, keep, and bear harmless the City, all officers and employees thereof, from all damages, costs, or expenses because of personal injury or property damage based on the performance of this Purchase Order or asserted against It.
14.DISPUTES: All disputes concerning questions of fact which may arise under this Purchase Order, and not disposed of by mutual consent, shall be decided by the Purchasing Manager.
15.OFFER AND ACCEPTANCE: Vendor represents its acceptance to provide products and/or services as follows: City's offer to purchase products and/or services is expressly conditioned upon Vendor's assent to the terms and conditions set forth in City's purchase order documents, specifications, supporting data, and these articles. Vendor agrees that Vendor's Order Acknowledgment terms and conditions received prior to, during, or after order placement by City are hereby rejected. City purchase orders signed by the City's Purchasing Manager or his/her designated agent and issued to Vendor constitute written notification to Vendor of City's rejection of any and all of Vendor Order Acknowledgments, counter offers and changes to the City's terms and conditions.
16.CANCELLATION: The City reserves the right to cancel the order with the vendor upon failure to meet contractual expectations and/or obligations, as recommended by the Purchasing Manager or his/her designee. Either party may terminate the contract in its unilateral discretion for any or no reason by providing at least sixty(60) days written notice of its desire to terminate.
17.ASSIGNMENT: Neither this purchase order nor any portion thereof shall be subcontracted or assigned without the written consent of the City in each and every instance.
18.MISCELLANEOUS: Time is of the essence in each and every provision of this purchase order. #18..
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DEALER VIN
Suggested Retail Price Invoice Amount
This Invoice may not reflect the final cost of the vehicle in view of the possibility of future rebates, allowances, discounts and incentive awards from Ford Motor Company to the dealer.
Sold to
Order Type Ramp Code Batch ID Price Level
Ship to (if other than above) Date Inv. Prepared Item Number Transit Days Ship Through
Invoice & Unit Identification NO. Final Assembly Point Finance Company and/or Bank HB Invoice Total A & Z Plan D Plan X Plan FPA
This invoice to be used for the billing of vehicles only Dealer’s copy AA
49676.59
Tracy Ford 72A463
3500 Auto Plaza Way
Tracy CA 95304 1FM5K8AB1RGA28999 CHICAGO 01 30 24 72-C114 21 K8A7 POLICE INTER UTILITY AWD 47165 00 45750 00
SPECIAL FLEET ACCOUNT CREDIT 1407 00-
2024 MODEL YEAR
UM AGATE BLACK METALLIC
96 EBONY CLOTH FRT/VINYL REAR
INCLUDED ON THIS VEHICLE
EQUIPMENT GROUP 500A
OPTIONAL EQUIPMENT/OTHER
.AM/FM STEREO
99B 3.3L TI-VCT V6 ENGINE 2830 00- 2661 00-
44U 10-SPEED AUTO TRANSMISSION NC NC
JOB #2 ORDER
16D BADGE DELETE NC NC
17T CARGO DOME LAMP -RED/WHITE 50 00 47 00
425 50 STATE EMISSIONS NC NC
43D COURTESY LAMP DISABLE 25 00 24 00
47A POLICE ENGINE IDLE FEATURE 260 00 244 00
51S DRIVER AND PASS LED SPOT LAMP 620 00 582 00
59B KEYED ALIKE -KEY CODE B 50 00 47 00
59W 4G LTE WI-FI HOTSPOT CREDIT 20 00- 18 00-
60R NOISE SUPPRESSION BOND STRAPS 100 00 94 00
65X STNLS STL HUB WHL CVR CREDIT 50 00- 47 00-
66A FRONT HEADLAMP LIGHT SOLUTION 895 00 841 00
.WIRING GRILL/LAMP/SIREN/SPKRS
66B TAIL LAMP LIGHTING SOLUTION 430 00 405 00
66C REAR LIGHTING SOLUTION 455 00 428 00
68G REAR DR HNDL AND LOCKS INOPR 75 00 71 00
76D DEFLECTOR PLATE 335 00 315 00
76R REVERSE SENSING SYSTEM 275 00 259 00
85R REAR CONSOLE MOUNTING PLATE 45 00 42 00
86T REAR TAILLAMP HOUSING NC NC
90E LH/RH BALLISTIC DOOR PNL III 3170 00 2979 00
92R SOLAR TINT 2ND ROW ONLY 85 00 80 00
FLEX-FUEL CAPABILITY
153 FRONT LICENSE PLATE BRACKET NC NC
TOTAL OPTIONS/OTHER 3970 00 3732 00
TOTAL VEHICLE & OPTIONS/OTHER 51135 00 48075 00
DESTINATION & DELIVERY 1595 00 1595 00
___________
TOTAL FOR VEHICLE 52730 00
FUEL CHARGE 5 94
CA NEW MTR VEHICLE BOARD FEES 65
SHIPPING WEIGHT 4535 LBS.
TOTAL 52730 00 49676 59
5B CA84 RA301 415 1024 72A463 1FM5K8AB1RGA28999 Ford Motor Credit 000001 Tracy Ford (209) 879-4700
RGA28999
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
August 13, 2024
July 19, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Bill Sandhu, Public Works Director
SUBJECT: First Amendment to the HF&H Consultants Agreement for the Solid Waste Haulers Audit and Performance Review
CONTACT: Rosene Nguyen, Integrated Waste Program Manager, [email protected], 209-577-5453
DESCRIPTION:
Consider approving the First Amendment with HF&H Consultants, LLC., Walnut Creek, CA, for the Solid Waste Haulers Audit and Performance Review increasing the Agreement amount by $99,855, to a revised total amount not to exceed $249,855 over the term of the original agreement. (Funding Sources: Solid Waste Fund)
STRATEGIC PLAN ELEMENT:
The recommended action supports the City’s Strategic Plan Area of Focus: Quality of Life, “Engage partners across the community to ensure the safety, resilience, and attractiveness of Modesto”, Goal A: “Improve community safety and quality of life through a combination of prevention and intervention efforts that address safety and its underlying issues”, Strategy 6:
Motivate and encourage staff and community members to identify and mitigate blight issues; and Goal B: “Increase pride in Modesto’s diverse neighborhoods and business districts through beautification efforts and by investing in community assets and amenities”, Strategy 3: Evaluate current waste removal and city beautification policies and procedures.
BACKGROUND:
The City has contracts with two private sector companies to collect residential, commercial, and industrial garbage, organics, and recyclables. The City does not set the actual rate the collection companies can charge to pick up the solid waste. Instead, the City sets the maximum rate that the collection companies can charge for each type of service. Per the Service Agreement with the solid waste collection companies, if deemed necessary by the City Council, rate adjustments shall be made to become effective on or near July 1 of each year. A computer modeling formula is used to analyze audited financial data submitted by solid waste collection companies. The maximum rate that the collection companies may charge for each service is then based on the lowest cost Hauler’s rates. These maximum rates can also be reviewed and changed when costs increase or decrease.
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City Council, August 13, 2024
First Amendment to the HF&H Consultants Agreement for the Solid Waste Haulers Audit and Performance Review
On June 27, 2023, by Resolution No. 2023-314, Council approved an agreement with HF&H Consultants, LLC. (HF&H) to conduct an audit and performance review of the Haulers, to analyze the current rate setting methodology and test it for validity, as well as develop a new rate setting methodology for a total amount not to exceed $150,000.
The first phase included in-depth Hauler financial audits, and analysis of existing conditions (e.g., costs, rates, fees, methodologies, level of service, etc.). A report was prepared at the end of Phase 1 summarizing findings and recommending possible courses of action. Phase 2 was intended to develop a draft set of rate and fee methodologies and options for further consideration and potential adoption. Upon completion of Phase 1, City staff indicated a desire to renegotiate the City’s current franchise agreements with its solid waste Haulers.
DISCUSSION:
HF&H met with City staff and Haulers to gather the necessary information to conduct an audit and performance review of the Haulers, to analyze the current rate setting methodology and test it for validity, and to develop a new rate setting methodology. Where applicable, they requested more information from the City or Haulers, conducted selected deep analysis of data, and evaluated the methodology for gathering or analyzing data. This project consists of two phases.
Phase 1 is the HF&H Audit summary and results, and Phase 2 includes creating a new rate setting methodology.
Phase 1:
HF&H conducted the following activities under guidance from City staff:
Reviewed each Hauler’s audited financial information for the most recently completed fiscal year, the annual rate adjustment application, and the standard rate adjustment methodology to understand the mechanisms with which the annual rates are calculated. Evaluated each Hauler’s allocation of costs to the City by reviewing the types of allocation factors applied to the Haulers’ financial statements and assessed whether the allocation factor was reasonable or standard for the industry. Benchmarked the residential, commercial, and residential bulky program costs against nearby jurisdictions or jurisdictions that have similar geographic structure and services.
They further inquired with each Hauler regarding costs that were higher than the benchmarked range.
Examined the current disposal, transfer, and organics pre-processing arrangements for each Hauler, including compensation for these services and their connection with the City’s composting facility.
Recalculated the Haulers’ tonnage reports to the City and analyzed detailed general ledgers for certain expenses in the general and administrative categories.
After concluding this review and analysis, HF&H made the following recommendations:
1. Third Party Review of Gilton Allocation: Because Gilton’s software for allocation of costs to the City is integrated with their accounting software, HF&H recommends that the #19..
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City Council, August 13, 2024
First Amendment to the HF&H Consultants Agreement for the Solid Waste Haulers Audit and Performance Review
software be reviewed periodically by a third party for accuracy and reasonableness. The cost for this review may be at the City’s or the Haulers’ expense.
2. City’s Compost Facility Per-Ton Rate: HF&H recommends the City consider creating a separate rate for contaminated organic material and the City and Haulers meet and confer to develop a load inspection program which will identify contaminated loads and a surcharge for loads determined to be contaminated.
3. Negotiate an Amendment to the Current Franchise Agreements: HF&H recommends negotiating an amendment to the current franchise agreement that addresses operational and informational concerns. HF&H also recommends the Haulers resubmit official cost and operations forms for the amendment to set a baseline to which future operations can be compared for reasonableness.
A. Modify Annual Rate Adjustment Methodology: The current annual rate adjustment process of using the ‘lowest cost Hauler’ does not provide sufficient guardrails to protect the City’s rate payers. HF&H recommends modifying the current annual rate adjustment process through the amendment to adjust expenses based on local collective bargaining agreements or regional and classification specific Consumers Price Index (CPI). HF&H recommends that the new rate adjustment methodology calculate the compensation for disposal and organics pre-processing and delivery based on a build-up of tons multiplied by the rate at the destination facility. HF&H recommends tying the annual increase in the organics pre-processing rate to an index or other annual metrics.
B. Acceptable Disposal Location Designations: HF&H recommends designating the disposal facilities in the franchise agreements to ensures material flow is managed and predictable.
4. Transfer / Organics Pre-Processing Rate Benchmarking: HF&H recommends the City review the transfer/pre-processing rate to ensure it is within the range of acceptable market rates.
5. Future Fee Component Removals: When performing the upcoming annual rate adjustment process, the following fees should be removed to not double-compensate the Haulers: Weekly Organics Collection, SB 1383 Collection Fee, Organics Waste PreProcessing. For fiscal year 24/25 the following fee modifications were made:
a. Weekly Organics Collection: this fee was added to the rate structure on August 1, 2023; therefore it was not included in the review of the fiscal year 24/25 rates. b. SB 1383 Collection: The hauler financials from FY 22/23 include six months of this service (from January to June 2023) so roughly half of the cost of this service has been incorporated into the base rate. As a result, the suggested rate for FY 24/25 was reduced by half from $5.40 to $2.70 per residential customer per month.
Organic Waste Pre-Processing Fees: Beginning July 1, 2022, the haulers received this fee and began pre-processing organic waste; thus, the base rate includes the cost of this #19..
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City Council, August 13, 2024
First Amendment to the HF&H Consultants Agreement for the Solid Waste Haulers Audit and Performance Review
service since it is based on FY 22/23. Analysis from HF&H recommended the removal of this fee when the base rate is updated to avoid double-charging.
6. Monthly Tonnage Reports: HF&H recommends the City either update and provide the Haulers with a revised reporting template or have the Haulers revise the current template for consideration by the City.
7. Detailed General Ledger Review: HF&H recommends placing a cap on annual increases to the general and administrative expenses through the annual rate adjustment methodology.
City staff have reviewed the recommendations provided by HF&H and agree that the actions they recommend will increase transparency and accuracy of the solid waste rate setting process.
Phase 2:
Phase 2 will begin after Council’s approval of the findings and recommendations presented by HF&H and will complete the remaining tasks under Resolution No. 2023-314 between the City and HF&H. Phase 2 entails analyzing the current rate setting methodology and developing a new rate setting methodology. City Council also directed staff to negotiate with the Haulers with the intent of amending and restating the current franchise contracts. It is in the best interest of the City to amend the current HF&H agreement for these services as HF&H has spent the preceding year evaluating the current agreements and gained an in-depth understanding of the City’s needs. The proposed amendment will expand Phase 2 to include the negotiation of amending and restating the Haulers’ franchise agreements.
As such, Phase 2 now consists of the following:
Task 1: Engagement Initiation Meeting
Task 2: Develop Request for Information
Task 3: Design Intake Meetings
Task 4: Develop List of City’s Desired Services and Terms Task 5: Meetings with Franchisees to Confirm Services and Terms Task 6: Restate Franchise Agreement and Negotiate with Franchise Haulers Task 7: Review Franchisees Cost/Rate Proposals
Task 8: Negotiate and Finalize Franchise Agreement Language and Rates Task 9: Ad-hoc Meetings and Analysis
Task 10: Prepare for and Attend Up to Six Governmental Official Meetings Modesto Municipal Code Section 8-3.203 generally requires all purchases which meet or exceed $100,000 for material, equipment, or contractual services to be formally bid. However, exceptions to the formal bidding process are granted in MMC 8-3.204 (f) “Where the Purchasing Manager, in her discretion, determines that it is appropriate to amend the services or goods provided under an existing agreement to include additional similar goods or services, of limited quantity or scope, to increase efficiency and avoid delays or disruptions to City projects or service.”
#19..
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City Council, August 13, 2024
First Amendment to the HF&H Consultants Agreement for the Solid Waste Haulers Audit and Performance Review
FISCAL IMPACT:
HF&H will perform the scope of work included as Exhibit A1 based on time and materials. The estimated total budget is $186,190. There is $86,335 remaining on HF&H’s current agreement with the City. Some of the tasks listed in the current scope of work were contemplated in the original project scope (e.g., developing a rate setting methodology); therefore, HF&H have applied the outstanding budget to this expanded project scope for a net requested amendment to the current project budget of $99,855.
Task Description Total Cost
1 Engagement Initiation Meeting $ 2,290
2 Develop Request for Information $ 555
3 Design Intake Meetings $10,740
4 Develop List of City’s Desired Services and Terms $ 5,690 5 Meetings with Franchisees to Confirm Services and Terms $ 25,180 6 Restate Franchise Agreement and Negotiate with Franchise Haulers $ 22,550 7 Review Franchisees Cost/Rate Proposals $ 18,430
8 Negotiate and Finalize Franchise Agreement Language and Rates $ 65,705 9 Ad-hoc Meetings and Analysis $ 11,600
10 Prepare for and Attend Up to Six Governmental Official Meetings $ 19,950 Travel Costs $ 3,500
Total Cost $ 186,190
Remaining in Existing Agreement (Reso 2023-314) ($ 86,335) Net Budget of First Amendment $ 99,855
COMMITTEE RECOMMENDATION:
Due to the urgent nature of the action needed, this item was not presented to the Council Committee.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the First Amendment for Consultant Services with HF&H Consultants, LLC., Walnut Creek, CA for the Solid Waste Haulers Audit and Performance Review increasing the Agreement amount by $99,855 to a new total amount not to exceed $249,855 over the term of the original agreement; and authorizing the City Manager, or his designee to execute the Amendment.
#19..
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City Council, August 13, 2024
First Amendment to the HF&H Consultants Agreement for the Solid Waste Haulers Audit and Performance Review
Approved by:
Bill Sandhu, Public Works Director
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. First Amendment
3. Exhibit A1 - HF&H Proposal
4. Original Signed Agreement (with all Exhibits)
5. Bid Waiver
#19..
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1 2024-xxx
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-XX
RESOLUTION APPROVING THE FIRST AMENDMENT FOR CONSULTANT SERVICES WITH HF&H CONSULTANTS, LLC., WALNUT CREEK, CA FOR
THE SOLID WASTE HAULERS AUDIT AND PERFORMANCE REVIEW
INCREASING THE AGREEMENT AMOUNT BY $99,855 TO A NEW TOTAL AMOUNT NOT TO EXCEED $249,855 OVER THE TERM OF THE ORIGINAL AGREEMENT; AND AUTHORIZING THE CITY MANAGER, OR HIS
DESIGNEE TO EXECUTE THE AMENDMENT
WHEREAS, Modesto has contracts with two private sector companies to collect residential, commercial, and industrial garbage, organics, and recyclables in the City; and WHEREAS, on June 27, 2023, by Resolution No. 2023-314, Council approved an agreement with HF&H Consultants LLC. to conduct an audit and performance review of the Haulers, to analyze the current rate setting methodology and test it for validity, as well as develop a new rate setting methodology; and
WHEREAS, the first phase included in-depth Hauler financial audits, and analysis of existing conditions (e.g., costs, rates, fees, methodologies, level of service, etc.). A report was prepared at the end of Phase 1 summarizing findings and recommending possible courses of action. Phase 2 was intended to develop a draft set of rate and fee methodologies and options for further consideration and potential adoption; and WHEREAS, upon completion of Phase 1, City staff indicated a desire to renegotiate the City’s current franchise agreements with its solid waste Haulers; and WHEREAS, it is in the best interest of the City to amend the current HF&H agreement for these services as HF&H has spent the preceding year evaluating the current agreements and gained an in depth understanding of the City’s needs. The proposed #19..
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2 2024-xxx
amendment will expand Phase 2 to include the negotiation of amending and restating the Haulers’ franchise agreements; and
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases which meet or exceed $100,000 for material, equipment, or contractual services to be formally bid. However, exceptions to the formal bidding process are granted in MMC 8-3.204 (f) “Where the Purchasing Manager, in her discretion, determines that it is appropriate to amend the services or goods provided under an existing agreement to include additional similar goods or services, of limited quantity or scope, to increase efficiency and avoid delays or disruptions to City projects or service.” NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the First Amendment for Consultant Services with HF&H Consultants, LLC., Walnut Creek, CA for the solid waste haulers audit and performance review increasing the agreement amount by $99,855 to a new total amount not to exceed $249,855 over the term of the original agreement.
BE IT FURTHER RESOLVED, that the City Manager, or his designee, is authorized to execute the amendment, in a form approved by the City Attorney. #19..
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3 2024-xxx
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 13th day of August 2024, by Councilmember ______, who moved its adoption, which motion being duly seconded by Councilmember _________, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: ___________________________
DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _________________________
JOSE M. SANCHEZ, City Attorney
#19..
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1 FIRST AMENDMENT TO AGREEMENT
FOR HF&H CONSULTANTS, LLC.
This First Amendment to the Agreement for HF&H Consultants, LLC (“First Amendment”) is entered into between the CITY OF MODESTO, a municipal corporation of the State of California (hereinafter the “City”) and HF&H Consultants, a California Corporation, (hereinafter "Consultant") as of _______ day of _____________, 2024.
RECITALS
This First Amendment to the Agreement HF&H Consultants Service is made with regard to the following recitals:
A. City and Consultant entered into a consultant services agreement on the 27h day of June 2023 for Solid Waste Haulers Audit and Performance Review (“the Original Agreement”).
B. City and Consultant desire to amend the Original Agreement to expand the Scope of Services to include “Exhibit A1” for additional services required.
C. City and Consultant desire to amend the Original Agreement to increase the compensation paid for services by $99,855, for a revised sum not to exceed $249,855 over the term of the Original Agreement.
NOW, THEREFORE, in consideration of this First Amendment, and the mutual promises, covenants, and stipulations contained in the Original Agreement, the parties agree as follows:
1. The scope of services set forth in Exhibit A of the Original Agreement shall be amended to include the services set forth in Exhibit “A1”, attached hereto and incorporated herein.
2. Section 3 “COMPENSATION” of the Original Agreement shall be deleted in its entity, and replaced with the following;
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2 Consultant agrees to accept a sum not to exceed Two Hundred Forty-Nine Thousand and Eight Hundred Fifty-Five Dollars ($249,855) as full remuneration for performing all services and furnishing all staffing and materials for City in accordance with Exhibit “A” and Exhibit “A1”, except that additional services may be compensated as described below.
The Compensation shall be paid pursuant in the manner and at the times set forth below:
The City shall pay Consultant on a time and materials basis for Consultant’s actual costs for all work called for in Exhibit “A” and Exhibit “A1” to this Agreement. All work to be performed under this Agreement shall be billed at the hourly rates set forth in Exhibit “B” attached hereto. Consultant shall submit monthly invoices to City which include detailed tasks, hours worked, and billable rates for all work completed and detailed receipts for any reimbursable expenses paid by Consultant in connection with work performed on this project.
City shall pay Consultant Net 45 Days via manual check.
In the event that additional services are deemed necessary, the Consultant shall provide a written request to the City Representative indicating the reason for additional work, scope and cost of such work. If additional services in excess of this amount are deemed necessary by City Staff, an amendment to this Agreement will be required and must be approved prior to commencing the work.
3. Except as modified and amended by this First Amendment, all other provisions of the Original Agreement shall remain unchanged and in full force and effect. #19..
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3 IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this First Amendment to Agreement for Solid Waste Haulers Audit and Performance Review by its City Manager under authority of Resolution No. ________ , adopted by the Council of the City of Modesto and attestation by its City Clerk on the ________ day of _______________, 2024, and HF&H Consultants, LLC., has caused this FIRST AMENDMENT to be duly executed as of the Effective Date. #19..
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Managing Tomorrow’s Resources Today
590 Ygnacio Valley Road, Suite 105 Northern California
Walnut Creek, California 94596 Southern California
Telephone: 925/977-6950 www.hfh-consultants.com
July 12, 2024 1 HF&H Consultants, LLC.
Sent via email
July 12, 2024
Rosene Nguyen
Integrated Waste Program Manager
City of Modesto
1010 10th Street
Modesto, CA 95354
Subject: Solid Waste Hauler Audit and Negotiations, Phase II – Budget Amendment Request Rosene Nguyen,
On July 27th, 2023, Modesto City Council adopted Resolution No. 2023-314 approving an agreement with HF&H Consultants, LLC., to conduct an audit and performance review for the solid waste haulers (i.e., Bertolotti Modesto Disposal and Gilton Solid Waste Management), to analyze the current rate setting methodology, test it for validity, and develop a new rate methodology. The scope of work for this engagement was divided into two (2) phases.
The first phase included in-depth hauler financial audits, and analysis of existing conditions (e.g., costs, rates, fees, methodologies, level of service, etc.). A report was prepared at the end of Phase 1 summarizing findings and recommending possible courses of action. Phase 2 was intended to develop a draft set of rate and fee methodologies and options for further consideration and potential adoption. Upon completion of Phase 1, City Staff indicated a desire to renegotiate the City’s current franchise agreements with its two (2) solid waste haulers.
In response to the City’s desire to renegotiate its franchise agreement, HF&H has developed this proposal to provide the City with professional consulting services to renegotiate the franchise agreements. Phase 2 of the City’s prior scope of work will be conducted as part of the renegotiation process. Therefore, the unused hours and funds in the amount of $86,335 may be utilized to offset the proposed budget for the below scope of work.
Under the proposed scope of work, HF&H would meet with the City to obtain project objectives and additional context, as well as set a schedule for the negotiation process. Following our review of the City’s data HF&H would meet with the City to develop a term sheet inclusive of the City’s desired services, features, and terms. This Term Sheet will be used as the initial basis for negotiations, prior to extensive drafting of franchise agreements. Upon agreement on the general framework and terms amongst stakeholders, HF&H would develop a franchise agreement and rate setting methodology, incorporating the City’s revisions. HF&H would also develop cost and rate proposal forms for the solid waste haulers to complete to help in the analysis of their reasonability and accuracy.
HF&H would work closely with the City and solid waste haulers to negotiate any necessary adjustment to the franchise agreements prior to execution. HF&H would also evaluate the accuracy and reasonableness of the proposed rates. Following agreement amongst the parties, HF&H would support the City through the franchise adoption process.
Exhibit "A1"
#19..
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Managing Tomorrow’s Resources Today
590 Ygnacio Valley Road, Suite 105 Northern California
Walnut Creek, California 94596 Southern California
Telephone: 925/977-6950 www.hfh-consultants.com
July 12, 2024 2 HF&H Consultants, LLC.
Scope of Work
Task 1: Engagement Initiation Meeting
HF&H will facilitate a virtual meeting with City Staff to initiate the project. This meeting will serve as a forum for reviewing the project approach, objectives, key milestones, and deadlines. While our prior discussions with City Staff provided a foundational understanding of current programs, the kick-off meeting will offer a forum for the City to provide additional context surrounding its unique situation which will help ensure the project deliverables are congruent with the City’s goals. This meeting will also be utilized to finalize a schedule and explore other City priorities that may interact with this process. Prior to this meeting HF&H will develop and agenda and following the meeting HF&H will provide meeting notes.
Task 2: Develop Request for Information
HF&H will develop and provide a request for information to the City which will facilitate the franchise amendment process. While HF&H is familiar with the City’s franchise agreements and rate structure from our prior/ongoing engagements, there are several items outside the franchise agreements that will be necessary to facilitate the project. While this task appears to have a low hour commitment, it is important to note that the time is specifically for tailoring the request to the City’s unique needs and identifying information we may not already have on file. We have dozens of prior examples and master templates to work from, so time will be spent ensuring we are only requesting specific information for the City of Modesto.
Task 3 Design Intake Meetings
Prior to the meeting, HF&H will amend and update our “Design Intake Document” for use throughout this process. This document provides a framework for drafting or amending franchise agreements to comply with legislation while also contemplating industry best-practices and other franchise terms that should be considered and discussed; it will also serve as a facilitation document for our meetings. This document will be customized based on the engagement initiation meeting in Task 1 to incorporate any additional items the City may wish to include, and to remove those items the City does not wish to explore or amend.
After development of the Design Intake Document, HF&H will host two (2) two-hour virtual meetings with the City. Following each meeting the City will receive detailed notes of discussions and decisions.
Following the final planning meeting, HF&H will provide the City with a “Franchise Design” document.
This document will serve as the basis for the restated franchise agreement and will include policy/process information, desired business terms, core services to be included, ancillary/other services, and a final project schedule.
Task 4: Develop List of City’s Desired Services and Terms Following the design intake meetings, HF&H will develop a Term Sheet that includes a list of the City’s desired services and terms. HF&H will then host a two-hour virtual meeting with City Staff to review and discuss any required updates and provide two (2) rounds of revisions. Through our extensive experience negotiating agreements we have found that using Term Sheets to achieve material agreement between parties on key deal points prevents significant redrafting of the franchise agreements later in the process. #19..
- 999 -
Managing Tomorrow’s Resources Today
590 Ygnacio Valley Road, Suite 105 Northern California
Walnut Creek, California 94596 Southern California
Telephone: 925/977-6950 www.hfh-consultants.com
July 12, 2024 3 HF&H Consultants, LLC.
Task 5: Meetings with Franchisees to Confirm Services and Terms Following completion of Task 4, the Term Sheet will be distributed to the City’s franchisees for review. We have budgeted for four (4) meetings with each franchisee at two (2) hours per meeting. We have also included time for a one (1) hour internal prep meeting prior to each franchisee meeting and meeting notes following each franchisee meeting. We’ve assumed meetings with both franchisees will occur on the same day for each round of meetings.
Task 6: Restate Franchise Agreement and Negotiate with Franchise Haulers HF&H will assist the City in the development of a modernized franchise agreement that reflects legislative requirements, relevant best practices, and other City priorities. In prior Tasks, HF&H will work closely with the City and franchisees to identify and adapt the service specifications to industry trends and developments that have occurred since the current agreements were developed. HF&H has an extensive library of franchise agreements throughout California to draw upon for examples of performance standards, service options, diversion programs, and reporting processes for the City’s consideration, which will maximize the efficiency of the process and quality of the agreement.
Based on prior tasks, HF&H will a prepare draft restated franchise agreement for the desired services. City Staff, including the City Attorney, will subsequently review the draft agreement. City Staff are requested to make any changes directly to the documents in a strike-and-replace format, which we will then use to prepare an updated draft agreement. Please note that HF&H assumes the City desires maximum consistency between agreements so we have provided a quote for developing one base franchisee agreement acknowledging it will need to be duplicated and there may be deviations between franchisees as we work through negotiations and finalization.
After City Staff submits the redlined draft franchise agreement and their comments back to HF&H, HF&H will coordinate a virtual meeting with the City to review proposed changes and discuss any questions or comments the City may have. Based on the City’s feedback, HF&H will update the draft restated franchise agreement. Following these updates, HF&H will distribute the draft restated franchise agreement to the franchisees for their review.
Task 7: Review Franchisees Cost/Rate Proposals
HF&H will develop cost/rate proposal forms for submittal by each franchisee. The cost/rate proposal forms will provide the costs necessary for each franchisee to perform the collection services outlined in the draft restated franchise agreements. These costs will inform the rates necessary to compensate each franchisee for their services. These cost forms will ensure sufficient level of detail is provided by the franchisees in a manner that supports HF&H’s evaluation of the future rates.
Upon receipt of the cost/rate forms, HF&H will review the materials and evaluate the cost/rate proposals.
The cost/rate proposal reviews will involve an initial check of the mathematical accuracy of the cost information and then an evaluation of the reasonableness of the proposed costs and related operating statistics. To the extent necessary, HF&H will connect with the franchiseesto seek clarification on the cost proposal.
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Managing Tomorrow’s Resources Today
590 Ygnacio Valley Road, Suite 105 Northern California
Walnut Creek, California 94596 Southern California
Telephone: 925/977-6950 www.hfh-consultants.com
July 12, 2024 4 HF&H Consultants, LLC.
Task 8: Negotiate and Finalize Franchise Agreement Language and Rates HF&H will facilitate up to eight (8) in-person meetings with each of City’s two (2) franchisees to negotiate the franchise terms and establish service rates. The number of meetings, if properly planned, prepared for and managed should be adequate for completing negotiations. We’ve assumed meetings with both franchisees will occur on the same day for each round of meetings.
Throughout the negotiations HF&H will document all discussions, decisions, and agreements between the City and franchisees for incorporation into the final franchise agreements. We often “live edit” the agreements during meetings for minor changes, but larger changes typically occur offline. We have also included time for drafting meeting minutes, an internal prep meeting prior to meeting with franchisees, revisions to the agreements, and final quality control.
Task 9: Ad-hoc Meetings and Analysis
While we have done our best to estimate all the meetings, revisions, and other aspects of this engagement, there are often unforeseen challenges or additional tasks that arise. For this reason, we have budgeted forty (40) hours for any additional support that may be required to ensure the best result for the City and its ratepayers.
Task 10: Prepare for and Attend Up to Six Governmental Official Meetings HF&H will attend the City Council meeting at which the final agreements are expected to be approved and will present the final agreement to the City Council. The City Attorney or City Clerk will be responsible for obtaining signatures and completing attachments with the contractor such as bonds and insurance certificates. We have also budgeted for an additional five (5) governmental official meetings.
Staffing
Rick Simonson, Senior Vice President and HF&H partner, will manage the project. Rick has over 22 years of solid waste cost allocation, rate setting, and contract negotiation experience with HF&H. Rick will be assisted by Philip Mainolfi, Sr. Project Manager, Danielle Derby, Sr. Associate, as well as other well qualified associates and assistant analysts, as necessary. Rick and Danielle recently completed an audit and performance review for the City’s solid waste haulers. Philip has recently conducted sole source negotiations with Gilton in Merced County, as well as negotiations with Gilton under a competitive framework in the Cities of Atwater and Livingston.
Budget
We will perform the scope of work as detailed above based on time and materials. The estimated total budget is $186,190. There is $86,335 remaining on our current agreement with the City. Some of the tasks listed in our current scope of work were contemplated in the original project scope (e.g., developing a rate setting methodology); therefore, we have applied the outstanding budget to this expanded project scope for a net requested amendment to the current project budget of $99,855.
Our actual costs may be higher or lower than this amount, depending on the complexity of the City’s contracting process, the number of negotiation sessions required, and other factors that cannot be precisely estimated in advance. A detailed breakdown of estimated costs isincluded below. In most of the #19..
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Managing Tomorrow’s Resources Today
590 Ygnacio Valley Road, Suite 105 Northern California
Walnut Creek, California 94596 Southern California
Telephone: 925/977-6950 www.hfh-consultants.com
July 12, 2024 5 HF&H Consultants, LLC.
procurements we have conducted for other cities, the contractor is required to reimburse the City for its consulting costs. HF&H will also explore other avenues for City reimbursement or on-going funding during the intake design meetings.
* * *
We appreciate this opportunity to be of assistance to the City. If you have any questions regarding our scope of work, please do not hesitate to contact me at 925-977-6957 or [email protected].
Sincerely,
HF&H CONSULTANTS, LLC
Rick Simonson
Senior Vice President
Executive Sr. Project
Manager
Sr.
Associate
Associate Admin Labor Total Cost
$ 340 $ 305 $ 250 $ 185 $ 125 Hours $
1 Engagement Initiation Meeting 2 2 4 0 0 8 $ 2,290
2 Develop Request for Information 0 1 1 0 0 2 $ 555
3 Design Intake Meetings 4 12 12 12 4 44 $ 10,740
4 Develop List of City's Desired Services and Terms 4 6 10 0 0 20 $ 5,690 5 Meetings with Franchisees to Confirm Services and Terms 30 36 16 0 0 82 $ 25,180 6 Restate Franchise Agreement and Negotiate with Franchise Haulers 8 16 39 20 12 95 $ 22,550 7 Review Franchisees Cost/Rate Proposals 8 16 30 18 0 72 $ 18,430 8 Negotiate and Finalize Franchise Agreement Language and Rates 54 84 55 35 12 240 $ 65,705 9 Ad-hoc Meetings and Analysis 8 16 16 0 0 40 $ 11,600
10 Prepare for and Attend Up to Six Government Official Meetings 30 14 16 8 0 68 $ 19,950 Total Costs Excluding Expenses 148 203 199 93 28 671 182,690 $ Expenses
$ 3,500
$ 186,190
Less: Reminaing Budget on Project S5079 $ (86,335)
Net Budget Amendment $ 99,855
Travel Expenses
Total Costs Including Expenses
Task Description
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1 STANDARD AGREEMENT
FOR CONSULTANT SERVICES
THIS AGREEMENT, made and entered into in the City of Modesto, State of California, this _______ day of , 2023
municipal corporation of the State of California, hereinafter referred to as "City", and HF&H Consultants, LLC, a California corporation, hereinafter referred to as "Consultant".
This Agreement is made with regard to the following recitals:
A. The City has determined that an Annual Rate Adjustment should be prepared for the City to the Maximum Rate Schedule for City Solid Waste Collection Services.
B. Consultant represents that it is qualified, willing and able to provide the services to prepare said document(s).
NOW, THEREFORE, in consideration of this agreement, and the mutual promises, covenants, and stipulations hereinafter contained, the parties agree as follows:
1. SCOPE OF SERVICES.
Consultant shall undertake and complete the scope of work as set forth and described in the documents attached hereto and referred to as Exhibit "A" or "Project".
2. TERM OF AGREEMENT.
This Agreement is effective as of the date first written above and will continue in effect until City's acceptance of and payment for all services authorized by City and performed by Consultant, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement.
City hereby gives Consultant notice to proceed with the preparation of the Project, as of the Effective Date of this agreement. Consultant shall diligently proceed with the completion of the Project within the time period set forth in Exhibit "A".
3. COMPENSATION.
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2 Consultant agrees to accept a sum not to exceed $150,000. (maximum compensation) as full remuneration for performing all services and furnishing all staffing and materials for Modesto in accordance with Exhibit "A" , except that additional services may be compensated as described below.
The Compensation shall be paid pursuant in the manner and at the times set forth below:
City shall pay Consultant on a time and materials basis for Con . Consultant shall submit monthly invoices to
City which include detailed tasks, hours worked, and billable rates for all work completed, and detailed receipts for any reimbursable expenses paid by Consultant and identified in Exhibit B approved by the City in writing.
City shall pay Consultant Net 45 Days via manual check.
In the event that additional services are deemed necessary, the Consultant shall provide a written request to the City Representative indicating the reason for additional work, scope and cost of such work. If additional services in excess of this amount are deemed necessary by City Staff, an amendment to this Agreement will be required and must be approved prior to commencing the work.
4. OBLIGATIONS OF CONSULTANT.
Throughout the term of this Agreement, Consultant shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business. Consultant warrants that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide the City with the services contemplated by this Agreement. Consultant further warrants that it will follow the best current, generally accepted and professional practices to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding this project.
5. PERFORMANCE BY KEY EMPLOYEE.
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3 Consultant has represented to City that Rick Simonson will be the person primarily responsible for the performance of the services referred to in this Agreement. City has entered into this Agreement in reliance on that representation by Consultant. Consultant therefore agrees that percent 20% or more of the time to be devoted to the project that is the subject of this Agreement will be that of the above-named person.
6. OWNERSHIP OF DOCUMENTS/TITLE TO DATA.
Ownership of Documents
All reports, drawings, designs, graphics, working papers and other incidental work or materials furnished hereunder shall become and remain the property of the City, and may be used by City as it may require without any additional cost to City. No reports shall be used by the Consultant for purposes other than this contract without the express prior written consent of City.
Title to Data
If, as a part of the agreement, Consultant is required to produce data such as, but not limited to, drawings, plans, specifications, calculations, models, flow diagrams, visual aids and other related materials, the originals of all such data generated under this agreement will be delivered to City upon the completion or termination of services under the contract. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use.
All materials, documents, data or information obtained from the City data files or any City medium furnished to Consultant in the performance of this Agreement will at all times remain the property of the City. Such data or information may not be used or copied for direct or indirect use by Consultant after termination of this Agreement without written consent of the City.
7. NEWS AND INFORMATION RELEASE.
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4 Consultant agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from the City Manager.
8. CONFLICT OF INTEREST.
Consultant warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would as that term is defined in the Political Reform Act (Gov. Code § 81000 et seq), for the Consultant in the performance of this Agreement. Consultant warrants that, in performance of this Agreement, Consultant shall not employ any person having any such interest. Consultant understands that, if this Agreement is made in violation of Government Code § 1090 et seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed. Consultant agrees to file a Statement of Economic Interests with the City Clerk at the start and end of this contract if so required at the option of City.
9. AMENDMENTS.
This Agreement, including the Exhibits attached hereto, may be amended only by a writing signed by both Parties. City will not be responsible to pay any charges Consultant may incur in performing services ed by the City in writing
10. INDEPENDENT CONTRACTOR.
All acts of Consultant, its agents, officers, and employees and all others acting on behalf of Consultant relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers, or employees of City. Except as City may specify in writing, Consultant has no authority to bind or incur any obligation on behalf of City. Consultant has no authority or responsibility to exercise any rights or power vested in the City. It is understood by both Consultant and City that this Agreement shall not under any circumstances be construed or considered to create an employer-employee relationship or a joint venture. Consultant, its agents, officers and employees are and, at all times during the terms of this Agreement, shall represent and conduct themselves as independent contractors and not as employees of City.
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5 Consultant shall determine and control the method, details and means of performing the work and services to be provided by Consultant under this Agreement. Consultant shall be responsible to City only for the requirements and results specified in this Agreement, and, except as expressly provided in this Agreement, shall not be subjected to City's control with respect to the physical action or activities of the Consultant in fulfillment of this Agreement. Consultant is permitted to provide services to others during the same period service is provided to City under this Agreement. If necessary, Consultant has the responsibility for employing other persons or firms to assist Consultant in fulfilling the terms and obligations under this Agreement.
If in the performance of this Agreement any third persons are employed by Consultant, such persons shall be entirely and exclusively under the direction, supervision, and control of Consultant. All terms of employment including hours, wages, working conditions, discipline, hiring, and discharging or any other term of employment or requirement of law shall be determined by the Consultant.
It is understood and agreed that as an independent contractor and not an employee of City neither the Consultant or Consultant's assigned personnel shall have any entitlement as a City employee, right to act on behalf of the City in any capacity whatsoever as an agent, or to bind the City to any obligation whatsoever. It is further understood and agreed that Consultant must issue W-2 forms or other forms as required by law for income and employment tax purposes for all of Consultant's personnel.
11. ASSIGNMENT.
Neither this Agreement nor any portion thereof shall be subcontracted or assigned, other than noted in Exhibit without the express prior written consent of the City in each and every instance.
12. PATENT/COPYRIGHT MATERIALS.
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6 Unless otherwise expressly provided in the contract, Consultant shall be solely responsible for obtaining the right to use any patented or copyrighted materials in the performance of this Agreement. Consultant shall furnish a warranty of such right to use to City at the request of City.
13. NOTICES.
Notice required by this Agreement shall be given in writing and shall be deemed given and effective upon delivery provided that such are delivered in accordance with the provisions of this Section.
Notices shall be delivered either by: (a) personal delivery; (b) overnight courier service which obtains confirmation of delivery; or (c) certified pail, return receipt requested, if delivery is confirmed by a return receipt; or (d) by electronic transmission subject to reasonable proof that the notice was both transmitted and received. Each such notice shall be sent to the parties at the address respectively set forth below or to such other address as a party may designate by written notice given in accordance with the provisions of this Section:
FOR CONSULTANT: Name: HF&H Consultants
Address: 590 Ygnacio Valley Road, Suite 105
Walnut Creek, CA 94596 Attention: Rick Simonson
Phone: (925) 977-6950
Email: [email protected]
FOR CITY: Name: City of Modesto
Address: P.O. Box 642
Modesto, CA 95353
Attention: Rosene Nguyen
Phone: (209) 577-5453
Email: [email protected]
14. INSURANCE REQUIREMENTS.
The Consultant shall provide at its own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the City as may be required by the Risk Manager of the City. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be #19..
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7 given to the Risk Manager of the City by PINS Advantage Insurance Program, for all of the following stated insurance policies.
In the event the certificates of insurance required hereunder do not provide for notice of cancellation to the certificate holder and/or additional insureds, the Consultant shall provide, and shall require its subcontractors to provide, as an express condition precedent to payment hereunder, an endorsement from their insurers providing that the additional insureds identified herein shall be provided 30 days notice of the cancellation on the policies of insurance required hereunder (10 days notice if the policies are cancelled for nonpayment of premium). In addition, the named insured on all such policies shall provide to the additional insureds identified herein any notices of cancellation of said insurance policies within 5 business days of receipt of such notice. The Consultant shall, as a further express condition precedent to payment for work performed, affirm under penalty of perjury that the required insurance on the project remains in place and said insurance has not been cancelled.
(a) Worker's Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000. (b) General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent consultants and subcontractors; products and completed operations as applicable.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.
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8 (d) Professional Liability insurance with a minimum limit of $1,000,000 per claim and policy aggregate. If coverage is on a claims made basis it shall be maintained for at least three (3) years following completion of the work.
If at any time any of said policies shall be unsatisfactory to the City, as to form or substance, or if a company issuing such policy shall be unsatisfactory to the City, the Consultant shall promptly obtain a new policy, submit the same to the Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the Consultant to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of the City, may be forthwith declared suspended or terminated. Failure of the Consultant to obtain and/or maintain any required insurance shall not relieve the Consultant from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the Consultant concerning indemnification. The City, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation and Professional Liability. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City, its agents, officers, employees, and volunteers for losses arising from work performed by Consultant for the City. The Consultant's insurance policy(ies) shall include a provision that the coverage is primary as respects the City; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the Risk Manager. The Consultant must deliver certificates evidencing existence of the insurance listed above to the City prior to the time the contract is signed.
CONSULTANT shall provide CITY with separate endorsements evidencing proof both the general liability and automobile liability insurance policies. In addition, CONSULTANT shall provide CITY with a Workers Compensation subrogation waiver by way of a separate endorsement. All endorsements referenced above must include the applicable policy number.
primary insurance as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or #19..
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9 self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the
15. TERMINATION OF AGREEMENT.
Termination for Default
In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the non-performance.
Within 10 days after receipt of notification, the breaching party shall correct any non-performance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
Termination by City for Convenience
City may cancel this Agreement at any time, with or without cause, upon written notification to Consultant.
Post-Termination Procedure
Upon receipt of a written notice of termination, the Consultant shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subconsultants and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and Subcontractors except as necessary to complete any portion of the Work that is not terminated;
c. If directed in writing by the City to do so, assign all right, title and interest in subcontracts and materials in progress to City, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subconsultants, but in no event shall recovery by any Consultant or subconsultant include lost profits for portions of the Work not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the City all data, drawings, #19..
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10 specifications, reports, estimates, summaries and such other information and material as mayhave been accumulated by the Consultant in performing the Work whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of City; f. Complete performance of such part of the Project as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the City for the protection and preservation of the Project and/or property related to the Project;
h. If City so requests, and at City's cost, Consultant shall provide sufficient oral or written status reports to make City reasonably aware of the status of Consultant's work on the project.
i. The Consultant understands and agrees that City may, in City's sole discretion, refuse to pay Consultant for that portion of Consultant's services which were performed by Consultant on the project prior to the termination date and which remain unacceptable and/or not useful to City as of the termination date.
City will pay Consultant for work actually completed prior to the receipt of the termination notice or otherwise completed in accordance with the notice of termination. The final payment to the Consultant after termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the Work such as subconsultant agreements or contracts for materials; b. The Agreement price allocable to the portion of the Work properly performed or goods supplied to the work site by the Consultant as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the Consultant.
16. INDEMNITY.
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11 The Consultant shall hold the City, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of Consultant, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement.
Consultant's obligation to defend, indemnify, and hold the City, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for Consultant to procure and maintain a policy of insurance.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
17. DISPUTE RESOLUTION.
Venue for all claims, controversies, or disputes arising out of, or relating to the formation of this Agreement, or the breach, termination execution, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this contract provision shall be in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California.
18. If a party to this AGREEMENT brings any action, including an action for declaratory relief, to enforce or interpret the provision of this AGREEMENT, the prevailing party shall be entitled to #19..
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12 such fees in the same action or in a separate action brought for that purpose.
19. ENTIRE AGREEMENT.
This Agreement and its exhibits contain the entire understanding between Consultant and City. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement.
20. PARTIAL INVALIDITY.
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
21. WAIVER.
The waiver by any party to this Agreement of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.
22. AUDIT.
The City's duly authorized representative shall have access at all reasonable times to all reports, contract records, contract documents, contract files, and personnel necessary to audit and verify Consultant's charges to City under this Agreement.
Consultant agrees to retain reports, records, documents, and files related to charges under this Agreement for a period of four (4) years following the date of final payment for Consultant services. City's representative shall have the right to reproduce any of the aforesaid documents.
23. GOVERNING LAW.
This Agreement shall be governed according to the laws of the State of California.
24. HEADINGS NOT CONTROLLING.
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13 Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement.
25. COMPLIANCE WITH LAWS.
Consultant shall insure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws. Consultant shall fully comply with all applicable federal, state, and local laws, ordinances, regulations and permits.
26. CITY BUSINESS LICENSE.
Consultant will have a City of Modesto business license. #19..
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14 IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2023- , adopted by the Council of the City of Modesto on the day of _____________ , 2023, and HF&H Consultants, LLC has caused this agreement to be duly executed in duplicate as of the Effective Date.
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CITY OF MODESTO,
a municipal corporation
BY: ____________________________
JOSEPH P. LOPEZ, City Manager
ATTEST:
(Seal)
BY: ____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
________________________________ BY: ____________________________ By _____________________________
Name Title
BY: ____________________________
By _____________________________
Name Title
APPROVED AS TO FORM:
BY: ____________________________
JOSE M. SANCHEZ, City Attorney
APPROVED AS TO FORM:
BY: ____________________________
JOE F. RODRIGUEZ, Risk Manager
Federal ID # ___________
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Exhibit A
Introduction and Background
The purpose of the Solid Waste Rate Study would be to conduct a comprehensive analysis and rates, along with associated fees for service impacts, recycling, green waste and organics diversion, and composting, that would sustain the enterprise while protecting the interests of the community. contracted solid waste haulers, to analyze the current rate setting methodology in place and test it for validity. Consultant would also review the true cost of solid waste services currently being provided to the community and calculate the true cost of services that need to be provided due to changes in law and regulations. Recommendations for rate setting methodologies, fees and costs would be made based on equitably distributing financial obligations to those who would be utilizing the services, while considering future growth, inflation, regulations, infrastructure, equipment needs, and the need for adequate financial reserves.
The Consultant would also review and amend the current rates language in the contract agreement with both haulers.
This project would include two phases. The first phase would include an infinancial audits, and a review and analysis of existing conditions (e.g., costs, rates, fees, methodologies, level of service, etc.). A report would be prepared at the end of Phase 1 summarizing findings and recommending possible courses of action. This report would be presented to City staff. In Phase 2, based on feedback from City staff, the Consultant would develop a draft set of rate and fee methodologies and options for further consideration and potential adoption. Consultant would discuss this with City staff and ultimately report and present this to Council Committee and the City Council.
Respondents shall not issue any news releases or make any statement to the news media pertaining to this RFP, proposal, contract, or any work resulting there from without the prior written consent of the City.
Scope of Work
Phase 1:
Conduct an insolid waste rate projections and financial planning for purposes of understanding the potential incurred costs associated with state mandates and for the purpose and reasonableness of Operating and other Reserve Fund Balances n program projections and financial
planning for purposes of understanding the potential incurred costs associated with the #19..
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collection of curbside green waste and future anticipated costs associated with the program.
Outline costs to be considered for all customers
Calculate the solid waste fees and user charges required to adequately recover the costs of providing solid waste services
A full review of the Haulers' base rates, with expenses separated by category and program.
This includes but not limited to performing hauler finances and transfer stations audit. designed to improve and meet City objectives
Draft and final reports that document the current process used in development of the Solid Waste Rate Structure and modifications and/or recommendations for review Recommends options for the demands of the operating and infrastructure costs associated with SB 1383 or other related legislation
Amend current haulers rates requirements and developing language for rate setting Develop a list of liquidated damages related to not complying with the contractual agreement
Provide rate analysis for different residential container size options (90, 60 and 32 gallons) Set Multifamily rates
Provide drafts for City review and revise recommendations as needed after receiving City input
Phase 2:
Develop an Excel-based rate Model and Financial Plan
over an extended planning period (e.g., 1-5 and 5-10 years) and account for timely vehicle replacement, other future capital costs, and the future costs of complying with new regulations, particularly SB 1383
Recommend different mythologies for adjusting maximum rates such as cost based adjustment and index-based adjustment.
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SCOPE OF WORK AND BUDGET
Introduction and Background
The purpose of the Solid Waste Rate Study would be to conduct a comprehensive analysis audit
associated fees for service impacts, recycling, green waste and organics diversion, and composting, that would sustain the enterprise while protecting the interests of the community. solid waste haulers (i.e., Bertolotti Modesto Disposal and Gilton Solid Waste Management), to analyze the current rate setting methodology in place and test it for validity. Consultant would also review the true cost of solid waste services currently being provided to the community and calculate the true cost of services that need to be provided due to changes in law and regulations. Recommendations for rate setting methodologies, fees and costs would be made based on equitably distributing financial obligations to those who would be utilizing the services, while considering future growth, inflation, regulations, infrastructure, equipment needs, and the need for adequate financial reserves.
The Consultant would also review and amend the current rates language in the contract agreement with both haulers.
This project would include two phases. The first phase will include an inand a review and analysis of existing conditions (e.g., costs, rates, fees, methodologies, level of service, etc.). A report would be prepared at the end of Phase 1 summarizing findings and recommending possible courses of action. This report would be presented to City staff. In Phase 2, based on feedback from City staff and discussions with the haulers, the Consultant would develop a draft set of rate and fee methodologies and options for further consideration and potential adoption. Consultant would discuss this with City staff and ultimately report and present this to Council Committee and the City Council.
Scope of Work
Phase 1. Hauler Financial Audit
Task 1. Kickoff Meeting with City Staff
The purpose of this task is to lay the foundation for the study and communicate progress with City staff. the solid waste services provided to the
rate setting practices, and the methodology for . We shall facilitate a virtual two-hour kick-off meeting with key City staff. The meeting will introduce the participants (City and HF&H) and identify their project roles and expectations. Meeting topics will include:
1. Discussing and evaluating relevant fiscal policies and community interests, identifying current issues and concerns (financial and operational);
2. Discussing the pros and cons of current rate setting practices and alternative approaches; #19..
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3. Discussing and revising, if needed, the project scope, timing, and deliverables based on our discussions during this kickoff meeting; and.
4. Developing talking points
haulers; and,
5. Reviewing the list of data requirements to conduct the study. HF&H will provide a data request list ahead of this meeting for the purpose of discussion during the kick-off meeting.
During the conduct of the study, HF&H will provide status updates to City staff to communicate progress on tasks and ensure alignment with staff direction and timing. During the kick-off meeting, we recommend establishing a day and time for standing one-hour monthly check-in calls with staff. These meetings are intended to obtain staff input and develop solutions that will be accepted by City Council and ratepayers.
This task assumes a total of 13 meetings.
Task 2. Meet with Haulers
Upon completion of Task 1, HF&H will facilitate a meeting with City staff and the contracted haulers. The meeting will include discussions of project objectives, scope, timeline, and the necessary data requirements to be provided by each hauler.
Task 3. Actual Costs of Operation
HF&H will review financial results for the most-recently completed fiscal year for services . Both haulers provide services to other jurisdictions other than the City. We will review with each haulers methodology for tracking costs attributable to each service area they serve. We will verify any costs which should be shared with multiple jurisdictions have been allocated. Where costs are allocated among different service areas (e.g., corporate overhead, routes which serve more than one service area, facility costs) we will audit the haulers records to verify the reasonableness of the allocation methodology and the accuracy of the calculations.
We will audit the disposal (solid waste) and processing (recyclable material, organic material) costs to ensure the haulers have delivered the material to the agreed-upon facility per the franchise agreement and the reported expenses are based solely on s and charged at the appropriate rates. If the dispo
will verify the per ton charges do not exceed the reasonable cost of providing the respective service. If a transfer station is used before ultimate disposal and/or processing of materials is utilized, we will verify the per ton charges do not exceed the reasonable cost of providing the transfer services.
Once the reasonable cost of service has been determined for the most-recently completed fiscal year, we will compare the revenue collected and retained by each hauler to determine an operating surplus or shortfall. This comparison will allow us to determine how the rates charged compare to the actual costs to provide service.
Deliverable: Technical memorandum of our findings and recommendations #19..
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Task 4. Calculate Solid Waste Rates
Based on our findings from Task 3 regarding the reasonable costs (i.e., revenue requirement) to provide services, we will develop appropriate solid waste fees for single family, multi family, and commercial customers for FY 2024-25. The FY 2024-25 revenue requirement (i.e., costs to be covered by rates) shall include all hauler and City costs. We will work with City staff and the haulers to project costs for the forthcoming fiscal year based on reasonable projections of labor costs, fuel costs, vehicle maintenance costs, disposal costs, and facility (i.e., transfer stations, organics processing facilities, and/or recyclable material processing facilities, as applicable to each hauler). We will consider past trends of cost increases, labor agreements, and disposal agreements, as applicable. Projections shall also consider new program costs related to the requirements of SB 1383 (organic material collection) and any other state mandates on the horizon. The revenue requirement calculations will be presented with up to three options, if necessary, for covering projected costs for current services (consistent in all three options) and alternative options for meeting the operating and infrastructure needing to meet current and anticipated state legislative requirements (e.g., SB 1383).
Rates shall be calculated to recover projected costs based on t practices and we shall identify potential alternative rate structures to meet Proposition 218 rate setting requirements, that requires rates to be proportional to the cost of providing service to each customer.
During the conduct of Task 1, we shall discuss potential rate structure changes. Based on those discussions, we will narrow alternatives to be model during this task to the two alternatives that may best balance state requirements and City objectives to encourage diversion of solid waste from landfills.
Currently, all residential customers receive three-container service, a 90-gallon solid waste container collected weekly, a 90-gallon organic material container collected weekly, and a 90-gallon recyclable material container collected every two weeks. As residents continue to divert more material from the solid waste container to the organic and recycling containers, it is anticipated that one rate structure alternative shall introduce the option for residents to receive a smaller solid waste container (e.g., 32- gallon, 60-gallon). This rate structure alternative will recognize the success of less material being landfilled, which reduces landfill tipping fees, and those tipping fee savings will be passed on to ratepayers through a graduated rate structure (e.g., the rate for customers who need 32-gallons of solid waste service will be charged less than those who need 64-gallons, which in turn will be less for those who need 90- gallons).
Deliverable: One Draft and One Final report documenting the rate setting process and rate structure alternatives for consideration by City Council.
Task 5. Develop Rate Setting/Hauler Compensation Methodology Working with City staff and the haulers, we will develop a detailed rate setting/hauler compensation methodology for adjusting rates in subsequent years, which shall be included in an amendment to the . Developing an agreed-upon and documented methodology will increase transparency for the City and customers to understand how rates are developed and provide We shall meet and confer with City staff to understand: 1) what is or is not working with the current rate adjustment methodology; 2) discuss City goals and objectives; and 3) discuss industry trends for rate setting methodologies to reduce rate volatility and meet the City #19..
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The rate/compensation methodology shall contemplate the use of two industry standards: index-based adjustments and cost-based adjustments.
o Index-Based Adjustments. This approach utilizes the previously approved compensation from the prior rate year inflated by various published indices (e.g., labor index, fuel index, vehicle repair index) to compensate the hauler based on their previously approved compensation. This approach incentivizes haulers to control costs yet allows for inflationary increases in their cost to conduct business.
o Cost-Based Adjustments. A cost-based will be used periodically during the term to reset compensation to reflect the haulers actual costs to provide service, ensuring ratepayers are only paying the actual cost of services, which may be out of alignment if the haulers actual costs are more or less than the inflationary adjustment during the index-based years. This ensures the hauler is fully compensated so the quality of service is not impacted, and ratepayers benefit when actual costs are less than projected. Our methodologies include how to handle unforeseen cost increases (e.g., spike in fuel prices, change in law requiring new services) to ensure no one party disproportionately bears the financial brunt and where compensation should rightly be adjusted, there are methods for considering such adjustments.
as their franchise agreements for providing service
to unincorporated areas of Stanislaus County utilize both approaches, during different pre-determined years throughout the term of the agreement.
Deliverable: We will draft up to three iterations of the draft language to be reviewed by City staff and the haulers. Once a consensus is reached among the City and each hauler, franchise agreement shall be presented to City Council for their consideration.
Task 6. Develop Liquidated Damages for Non-Compliance
The hauler agreements include various liquidated damages or corrective actions for non-compliance with contractual obligations. We will review the agreements and recommend any additional liquidated damages or corrective actions that may be added, based on current industry standards, that will better (i.e., one time
collection, proper handling of materials, etc.) required by the terms of the agreements.
Deliverable: We will draft up to three iterations of the draft language around liquidated damages/corrective actions to be reviewed by City staff and the haulers. Once a consensus is reached to City Council for their consideration.
Task 7. Develop Multi-Year Financial Planning Model
For long-term planning purposes, we will develop an Excel-based 5- or 10-year financial planning model to project rate increase trends. The model will incorporate inflationary projections of costs to provide current services and potential changes in service to meet new state regulatory requirements. The model shall include projection of
and capital cost projections for vehicle replacement or other one-time costs that may impact future rates. #19..
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Deliverable: Excel-based financial planning model which can be used by City staff to track actual and projected costs to ensure rates charged to customers reflect the true cost of service over the long term.
Staffing
Rick Simonson, Senior Vice President and HF&H partner, will manage the project. Rick has over 22 years of solid waste cost allocation, rate setting, and contract negotiation experience with HF&H. Rick will be assisted by Danielle Derby, CPA, Senior Associate, as well as other well qualified associates and assistant analysts, as necessary. Rick and Danielle recently completed a rate study for the County of Stanislaus d haulers,
which included Bertolotti and Gilton.
Budget
Our estimated budget is detailed in the figure below and reflects our current understanding of the project.
The total proposed budget $127,950 to conduct the tasks outline above. The City will be billed on a time needs and does not include unnecessary services. Reimbursable costs (e.g., mileage reimbursement or other travel expenses) are charged without markup. During the conduct of Task 1, Kickoff Meeting, we will confirm the project requirements and revise the scope, and budget, if necessary, based on those discussions. The amount of hours spent on each task, and subsequent billings, is highly dependent on cooperation with the haulers to provide timely information requested and willingness to negotiate the intended revisions to the current franchise agreements, primarily as the pertain to future rate setting/compensation methodologies and the expansion of liquidated damages/corrective actions for non-compliance with franchise agreement requirements.
Total Proposed
$330 $230 $175 $150 $120 Hours Cost
Task 1 Kickoff Meeting/Review Documents 12 12 6 0 0 30 7,770 $ Task 2 Meet with Haulers 8 8 4 0 0 20 5,180 $
Task 3 Review Haulers' Actual Costs of Operation 20 70 40 12 4 146 31,980 $ Task 4 Calculate Solid Waste Rates 16 60 20 20 4 120 26,060 $ Task 5 Develop Rate Setting/Hauler Compensation Methodology 24 16 40 20 4 104 22,080 $ Task 6 Develop Liquidated Damages for Non-Compliance 10 16 20 0 2 48 10,720 $ Task 7 Develop Multi-Year Financial Planning Model 12 40 40 20 0 112 23,160 $ Total Labor - All Tasks 102 222 170 72 14 580 126,950 $ Out-of-Pocket Expenses (travel, if necessary) $ 1,000
Total Budget $ 127,950
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
June 27, 2023
Date: June 27, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Bill Sandhu, Public Works Director
SUBJECT: Annual Adjustment to Maximum Rate Schedule for Solid Waste Collection Services
CONTACT: Rosene Nguyen, Integrated Waste Manager
[email protected], 209-577-5453
DESCRIPTION: Hearing to consider approving the Annual Rate Adjustment to the Maximum Rate Schedule for City Solid Waste Collection Services provided by the solid waste haulers, for an increase of $4.76 per month for residential services with weekly green/organics container collection, an increase of $1.52 per cubic yard for commercial services, and an increase of $36.82 per pull for industrial services, to become effective August 1, 2023, and rescinding Resolution No. 2022- 276 for the July 1, 2022 annual rate adjustment, and adjusting the fuel rates for an adjustment of $0.04 per month for residential services, and an adjustment of $0.08 per cubic yard for commercial services, to become effective August 1, 2023, and rescinding Resolution No. 2022- 277 for the July 1, 2022 annual rate adjustment, and an agreement with HF&H Consultants LLC., to conduct an audit and performance review for the solid waste haulers, to analyze the current rate setting methodology and test it for validity, and develop new rates methodology, for a total amount not to exceed $150,000. (Funding Sources: General Fund, Solid Waste Fund, Geer Road Landfill Fund, Green Waste Fund)
STRATEGIC PLAN ELEMENT:
ety, resilience, and attractiveness of
Motivate and encourage staff and community members to identify and mitigate blight issues ; Evaluate
current waste removal and city beautification policies and procedures. #19..
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City Council, June 27, 2023
Annual Adjustment to Maximum Rate Schedule for Solid Waste Collection Services