06 Attachment 5-Agreement for Consultant Services111H
AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT is made and entered into on the lat day of January, 2018 by and between
TOWN OF LOS GATOS, a California municipal corporation, ( "Town') and BSI EHS Services and
Solutions (West) Inc., ("Consultant'), whose address is 4 North Second Street, San Jose, CA
95113. This Agreement is made with reference to the following facts.
I. RECITALS
1.1 The Town desire to engage Consultant to provide Environmental Health & Safety services
and support.
1.2 The Consultant represents and affirms that it is willing to perform the desired work pursuant
to this Agreement.
1.3 Consultant warrants it possesses the distinct professional skills, qualifications, experience,
and resources necessary to timely perform the services described in this Agreement.
Consultant acknowledges Town has relied upon these warranties to retain Consultant.
R. AGREEMENTS
2.1 Scone of Services. Consultant shall provide services as described in that certain Proposal in
Response to the Town ofLos Gatos' Environmental Health & Safety Program RFP, sent to
the Town on August 31, 2017, and an additional email summary sent to the Town on
October 26, 2017, which is hereby incorporated by reference and attached as Exhibit A.
2.2 Term and Time of Performance. This contract will remain in effect from January 1, 2018 to
December 31, 2020. This Agreement shall remain in effect for a period of three (3) years
Initial Term') unless terminated earlier in accordance with the relevant provisions hereof.
Thereafter, this Agreement has the option to renew for an additional two (1) year periods
Extension Term ") and shall remain in effect unless terminated earlier in accordance with
the relevant provisions hereof. Consultant shall perform the services described in this
agreement as detailed in Appendix A, with specific task scheduling to be determined jointly
by The Town and the BST support team.
2.3 Compliance with Laws. The Consultant shall comply with all applicable laws, codes,
ordinances, and regulations of governing federal, state and local laws. Consultant
represents and warrants to Town that it has all licenses, permits, qualifications and
approvals of whatsoever nature which are legally required for Consultant to practice its
profession. Consultant shall maintain a Town of Los Gatos business license pursuant to
Chapter 14 ofthe Code of the Town of Los Gatos.
2.4 Sole Responsibility. Consultant shall be responsible for employing or engaging all persons
necessary to perform the services under this Agreement.
Agreement for Consulting Services —Town ofLos Gatos and BSI EHS Services and Solutions, Environmental Health & Safety
Program 2018 -2020.
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ATTACHMENT 5
2.5 Information/Report Handling. All documents furnished to Consultant by the Town and all
reports and supportive data prepared by the Consultant under this Agreement are the
Town's property and shall be delivered to the Town upon the completion of Consultant's
services or at the Town's written request. All reports, information, data, and exhibits
prepared or assembled by Consultant in connection with the performance of its services
pursuant to this Agreement are confidential until released by the Town to the public, and the
Consultant shall not make any of these documents or information available to any
individual or organization not employed by the Consultant or the Town without the written
consent of the Town before such release. The Town acknowledges that the reports to be
prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a
defined project, and Town's use of the information contained in the reports prepared by the
Consultant in connection with other projects shall be solely at Town's risk, unless
Consultant expressly consents to such use in writing. Town further agrees that it will not
appropriate any methodology or technique of Consultant which is and has been confirmed
in writing by Consultant to be a trade secret of Consultant.
2.5a Instruments of Service. BSI's Instruments of Service consist of any document or
material provided as part of the agreed -upon deliverables under this Agreement. They are
prepared for the exclusive use of The Town for the sole purpose described in the scope and
terms ofthe Instruments of Service. The Town waives any claim against BSI and agrees to
provide Indemnification for any claim or liability for injury, loss, or costs allegedly arising from
any use other than Authorized Use of BSI's Instruments of Service.
2.5b The Town Information. The Town warrants the accuracy and completeness ofinformation,
including, but not limited to, representations, specifications, drawings, maps, surveys, reports,
historical land usage and operations, results ofprevious site investigations and surface or
subsurface conditions affecting the site), supplied by it or its agents to BSI and acknowledges that
BSI is relying upon such information or data in the preparation ofthis Proposal and rendering of
services.
2.6 Compensation. Compensation for Consultants professional services shall not exceed
49,200.00 annually, inclusive of all costs. Payment shall be based upon Town approval of
each task. Rates will remain unchanged for the initial 3 -year term. To maintain parity with
economic circumstances, BSI may elect to increase rates for the 4th and/or 5th year contract
options. Annual rate table increases shall not exceed 3% of the preceding year's rate table fees
in the years after 2020. However, if in any of the years after 2019 the Bureau of Labor
Statistics Employment Cost Index in Northern California is greater than 4.5 %, the parties agree
to renegotiate rates for the final two years of this contract.
2.7 Billing. Billing shall be monthly by invoice within thirty (30) days of the rendering of the
service and shall be accompanied by a detailed explanation of the work performed by whom
at what rate and on what date. Also, plans, specifications, documents or other pertinent
materials shall be submitted for Town review, even if only in partial or draft form.
Agreement for Consulting Services — Town ofLos Gatos and BSI EHS Services and Solutions, Environmental Health & Safety
Program 2018 -2020.
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Payment shall be net thirty (30) days. All invoices and statements to the Town shall be
addressed as follows:
Invoices:
Town of Los Gatos
Attn: Accounts Payable
P.O. Box 655
Los Gatos, CA 95031 -0655
2.8 Availability of Records. Consultant shall maintain the records supporting this billing for
not less than three years following completion of the work under this Agreement.
Consultant shall make these records available to authorized personnel of the Town at the
Consultant's offices during business hours upon written request of the Town.
2.9 Assignability and Subcontracting. The services to be performed under this Agreement are
unique and personal to the Consultant. No portion of these services shall be assigned or
subcontracted without the written consent of the Town.
2.10 Independent Contractor. It is understood that the Consultant, in the performance of the
work and services agreed to be performed, shall act as and be an independent contractor and
not an agent or employee ofthe Town. As an independent contractor he/she shall not obtain
any rights to retirement benefits or other benefits which accrue to Town employee(s). With
prior written consent, the Consultant may perform some obligations under this Agreement
by subcontracting, but may not delegate ultimate responsibility for performance or assign or
transfer interests under this Agreement. Consultant agrees to testify in any litigation brought
regarding the subject of the work to be performed under this Agreement. Consultant shall
be compensated for its costs and expenses in preparing for, traveling to, and testifying in
such matters at its then current hourly rates of compensation, unless such litigation is
brought by Consultant or is based on allegations of Consultant's negligent performance or
wrongdoing.
2.11 Conflict of Interest. Consultant understands that its professional responsibilities are solely
to the Town. The Consultant has and shall not obtain any holding or interest within the
Town of Los Gatos. Consultant has no business holdings or agreements with any individual
member of the Staff or management of the Town or its representatives nor shall it enter into
any such holdings or agreements, In addition, Consultant warrants that it does not presently
and shall not acquire any direct or indirect interest adverse to those of the Town in the
subject of this Agreement, and it shall immediately disassociate itself from such an interest,
should it discover it has done so and shall, at the Town's sole discretion, divest itself of such
interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it
does not employ a person having such an interest in this performance of this Agreement. If
after employment of a person, Consultant discovers it has employed a person with a direct
or indirect interest that would conflict with its performance of this Agreement, Consultant
shall promptly notify Town of this employment relationship, and shall, at the Town's sole
discretion, sever any such employment relationship.
Agreement for Consulting Services— Town of Los Gatos and BSI EHS Services and Solutions, Environmental Health & Safety
Program 2018 -2020.
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2.12 Equal Employment Opportunity. Consultant warrants that it is an equal opportunity
employer and shall comply with applicable regulations governing equal employment
opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate
against persons employed or seeking employment with them on the basis of age, sex, color,
race, marital status, sexual orientation, ancestry, physical or mental disability, national
origin, religion, or medical condition, unless based upon a bona fide occupational
qualification pursuant to the California Fair Employment & Housing Act.
M. INSURANCE AND INDEMNIFICATION
3.1 Minimum Scope of Insurance:
i. Consultant agrees to have and maintain, for the duration of the contract,
General Liability insurance policies insuring him/her and his/her firm to an
amount not less than: one million dollars ($1,000,000) combined single limit
per occurrence for bodily injury, personal injury and property damage.
ii. Consultant agrees to have and maintain for the duration of the contract, an
Automobile Liability insurance policy ensuring him/her and his/her staff to
an amount not less than one million dollars ($1,000,000) combined single
limit per accident for bodily injury and property damage.
Consultant shall provide to the Town all certificates of insurance, with
original endorsements effecting coverage. Consultant agrees that all
certificates and endorsements are to be received and approved by the Town
before work commences.
iv. Consultant agrees to have and maintain, for the duration of the contract,
professional liability insurance in amounts not less than $1,000,000 which is
sufficient to insure Consultant for professional errors or omissions in the
performance of the particular scope of work under this agreement.
V. Limits of Liability. BSI's maximum aggregate liability under this agreement
shall not exceed the greater of $1,000,000 or the total amounts paid by The
Town to BSI during the twelve (12) months immediately preceding the
claim.
General Liability:
The Town, its officers, officials, employees and volunteers are to be covered
as insured as respects: liability arising out of activities performed by or on
behalf of the Consultant; products and completed operations of Consultant,
premises owned or used by the Consultant. This requirement does not apply
to the professional liability insurance required for professional errors and
omissions.
Agreement for Consulting Services —Town of Los Gatos and BSI EHS Services and Solutions, Environmental Health & SafetyProgram2018 -2020.
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ii. The Consultant's insurance coverage shall be primary insurance as respects
the Town, its officers, officials, employees and volunteers. Any insurance or
self - insurances maintained by the Town, its officers, officials, employees or
volunteers shall be excess of the Consultant's insurance and shall not
contribute with it.
iii. Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to the Town, its officers, officials, employees or
volunteers.
iv. The Consultant's insurance shall apply separately to each insured against
whom a claim is made or suit is brought, except with respect to the limits of
the insurer's liability.
3.2 All Coverages. Each insurance policy required in this item shall be endorsed to state that
coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except
after thirty (30) days' prior written notice by certified mail, return receipt requested, has
been given to the Town. Current certification of such insurance shall be kept on file at all
times during the term ofthis agreement with the Town Clerk.
3.3 Workers' Compensation. In addition to these policies, Consultant shall have and maintain
Workers' Compensation insurance as required by California law and shall provide evidence
of such policy to the Town before beginning services under this Agreement. Further,
Consultant shall ensure that all subcontractors employed by Consultant provide the required
Workers' Compensation insurance for their respective employees.
3.4 Indemnification. The Consultant shall save, keep, hold harmless and indemnify and defend
the Town its officers, agent, employees and volunteers from all damages, liabilities,
penalties, costs, or expenses in law or equity that may at any time arise or be set up because
of damages to property or personal injury received by reason of, or in the course of
performing work which may be occasioned by a willful or negligent act or omissions of the
Consultant, or any of the Consultant's officers, employees, or agents or any subconsultant.
IV. GENERAL TERMS
4.1 Waiver. No failure on the part of either party to exercise any right or remedy hereunder
shall operate as a waiver of any other right or remedy that party may have hereunder, nor
does waiver of a breach or default under this Agreement constitute a continuing waiver of a
subsequent breach of the same or any other provision ofthis Agreement.
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Program 2018 -2020.
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4.2 Governing Law. This Agreement, regardless of where executed, shall be governed by and
construed to the laws of the State of California. Venue for any action regarding this
Agreement shall be in the Superior Court of the County of Santa Clara.
4.3 Termination of Agreement. The Town and the Consultant shall have the right to terminate
this agreement with or without cause by giving not less than fifteen days (15) written notice
of termination. In the event of termination, the Consultant shall deliver to the Town all
plans, files, documents, reports, performed to date by the Consultant. hi the event of such
termination, Town shall pay Consultant an amount that bears the same ratio to the
maximum contract price as the work delivered to the Town bears to completed services
contemplated under this Agreement, unless such termination is made for cause, in which
event, compensation, if any, shall be adjusted in light of the particular facts and
circumstances involved in such termination.
4.4 Amendment. No modification, waiver, mutual termination, or amendment of this
Agreement is effective unless made in writing and signed by the Town and the Consultant.
4.5 Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, including costs of appeal.
4.6 Notices. Any notice required to be given shall be deemed to be duly and properly given if
mailed postage prepaid, and addressed to:
Town of Los Gatos BSI EHS Services and Solutions (West) Inc.
Attn: Human Resources Attn: Christy Foster
110 E. Main Street 4 North Second Street
Los Gatos, CA 95030 San Jose, CA 95113
or personally delivered to Consultant to such address or such other address as
Consultant designates in writing to Town.
4.7 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the
terms and conditions of this Agreement in respect of the Products or Services and any
attachments to this Agreement, then the terms and conditions of this Agreement shall
prevail over attachments or other writings.
4.8 Entire Agreement. This Agreement, including all Exhibits, constitutes the complete and
exclusive statement of the Agreement between the Town and Consultant. No terms,
conditions, understandings or agreements purporting to modify or vary this Agreement,
unless hereafter made in writing and signed by the party to be bound, shall be binding on
either party.
Agreement for Consulting Services — Town ofLos Gatos and BSI EHS Services and Solutions, Environmental Health & Safety
Program 2018 -2020.
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IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement.
Town of Los Gatos by:
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Laurel Prevetti, Town Manager
Recommended by:
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Lisa Velasco, Human Resources Director
Approved as to Form:
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Robert Schultz, To > ttorney
Consultant, by:
Janice McKim,
Chief Financial Officer
Agreement for Consulting Services— Town ofLos Gatos and HSI EHS Services and Solutions, Environmental Health & Safety
Program 201 5 -2020.
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EXHIBIT A — Scope/Cost Estimate Basis
Safety Training Services:
Time -and Materials Basis, Not -to- Exceed
18,000
7 In- Person Training sessions, including
presentation development time, quality
review, formatting, and onsite delivery time
1 -2 hours /class) = $2,200 /class
Tailgate topic development = $170 /topic
Safetv Committee Support:
Time- and - Materials Basis, Not -to- Exceed
3,200
800 /meeting, including preparation, agenda
review, and follow up actions from the
meeting.
Job Hazard Analysis:
Fixed Fee of $16,000 ($400 /JHA)
We assume 40 JHAs, and each will cost $400.
Prices would decrease accordingly if the total
number of JHAs to be completed in one year
was decreased.
Annual Program Review:
Time -and- Materials Basis, Not -to- Exceed
12,000
15 written programs would be reviewed, at a
cost of $800 /program. Programs will be
reviewed and returned with any edits /updates
in track changes mode. This assumes an
average of 4 hours of review time, plus one
set of additional comments from the Town
and subsequent BSI changes to the
document.
N:/MASTER/AGREEMENTS/ AgreementTemplates/ AgreementforConsultantServices .nf
Agreement for Consulting Services— Town of Los Gatos and BSI EHS Services and Solutions, Environmental Health & Safety
Program 2018 -2020.
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EXHIBIT A
TOWN OF LOS GATOS MEETING DATE: 12/19/2017
COUNCIL AGENDA REPORT ITEM NO: 6
DATE: DECEMBER 11, 2017
TO: MAYOR AND TOWN COUNCIL
FROM: LAUREL PREVETTI, TOWN MANAGER
SUBJECT: AUTHORIZE THE TOWN MANAGER TO EXECUTE AN AGREEMENT FOR
EMPLOYEE SAFETY COMPLIANCE AND TRAINING CONSULTANT SERVICES
WITH BSI EHS SERVICES AND SOLUTIONS (WEST) INC., IN AN AMOUNT
NOT TO EXCEED $147,600
RECOMMENDATION:
Authorize the Town Manager to execute an agreement for employee safety compliance and
training consultant services with BSI EHS Services and Solutions (West) Inc. (Attachment 1), in
an amount not to exceed $147,600.
BACKGROUND:
California's Occupational Health and Safety Administration (Cal -OSHA) sets the standards and
requirements related to an employer sponsored Health and Safety Program. Components of a
Health and Safety Program include employee training and Cal -OSHA compliance. Cal -OSHA
requires annual or recurring periodic training for safety sensitive job classifications that have
potential for exposure to illnesses or injuries resulting from bloodborne pathogens and
communicable diseases, working at heights or within confined spaces, routine use of
specialized equipment and machines, or lifting heavy objects. The Town's Health and Safety
Program includes periodic recommended employee trainings to proactively prevent work
injuries or illnesses, such as: safe driving techniques, earthquake safety, and prevention of
slips /trips /falls. The Town has historically engaged the services of a safety consultant to ensure
compliance with Cal -OSHA regulations, provide on -site safety training classes, and partner with
the Town's Health and Safety Committee to promote a safe work environment.
PREPARED BY: LISA VELASCO
Human Resources Director
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Finance Director
110 E. Main Street Los Gatos, CA 95030 • 408- 354 -6832
www.losgatosca.gov
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SUBJECT: AUTHORIZE THE TOWN MANAGER TO EXECUTE AN AGREEMENT FOR
EMPLOYEE SAFETY COMPLIANCE AND TRAINING CONSULTANT SERVICES
WITH BSI EHS SERVICES AND SOLUTIONS (WEST) INC., IN AN AMOUNT NOT TO
EXCEED $147,600
DECEMBER 11, 2017
DISCUSSION:
The Town has contracted with BSI since February 2013 and extended the contract in May 2016
to provide additional time to conduct a formal Request for Proposals (RFP). An RFP was
initiated in August, 2017. Six firms responded to the RFP and three were invited to interview
with Town staff. Based on their formal Proposal (Attachment 2) and interviews, BSI was
selected based on their overall cost, breadth and depth of knowledge related to safety
compliance, as well as resources to offer employee trainings, tailgate trainings, and
participation at Health and Safety Committee meetings.
In addition, during the term of the prior agreement between BSI and the Town, BSI was highly
effective in assisting the Town to contain costs associated with the Employee Health and Safety
Program by addressing potential safety issues to ensure safe work environments for
employees. BSI has also been instrumental in ensuring the Town's compliance with legally
mandated Cal -OSHA training and requirements.
CONCLUSION:
Staff recommends that the Town Council authorize the Town Manager to execute a new
agreement with BSI for three years effective January 1, 2018, with an option to renew for two
additional one -year periods.
COORDINATION:
This report was coordinated with the Parks and Public Works Department.
FISCAL IMPACT:
The annual fiscal impact for this agreement will not exceed $49,200 annually, or $147,600 over
the course of three years. Funding to support this agreement is included in the adopted budget
for FY 2017/18 in the Workers' Compensation Program.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachments:
1. Agreement for Consultant Services with BSI EHS Services and Solutions (West) Inc.
2. Response to Town of Los Gatos RFP Environmental Health & Safety Program (BSI Proposal
17 -0943)
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