04 Staff Report - Contract with Avery & Associates
COUNCIL AGENDA REPORT MEETING DATE: 912012004 ITEM NO. DATE: September 14, 2004 TO: FROM: DEBRA J FIG(iNE, TOWN
SUBJECT: ADOPT RESOLUTION AUTHORIZING THE TOWN MANAGER TO EXECUTE A CONTRACT WITH WILLIAM AVERY &. ASSOCIATES, INCORPORATED TO PROVIDE LABOR RELATIONS SERVICES RECOMMENDATION: Adopt
resolution approving a contract with William Avery & Associates, Incorporated to provide lahor relations consulting services, and authorizing the Town Manager to execute the contract.
. DISCUSSION: The Town afLas Gatos is currently in contract negotiations with two bargaining units, the Town Employees Association (TEA) and the Corporation Yard Unii, AFSCME Local 101.
The Hwnan Resources Director was serving as the Town's Chief Negotiator; however he resigned effective September 9, 2004 and is working off-site on a limited basis until a new Director
is hired. A recruitment for a new Human Resources Director is under way, and a new Director is expected to be hired in early December or January. In the meantime, the Town requires the
services ofa qualified labor relations expert to complete the negotiations currently in progress. PAMELA S. JACOBS Assistant Town Manager PREPARED
BY: William Avery & Associates, Incorporated is uniquely qualified to assist the Town due to their extensive experience in labor relations throughout the State; their proximity to and
knowledge ofthe envirorunent in Los Gatos; and their competitive fee schedule. It is recommended that the Town Council approve the attached contract for labor relations consulting services
with William Avery & Associates Inc. in an amount not to exceed $19,350. and authorize the Town Manager to execute the contract. PSJ:pg N:\MGR\AdminWorkFiles\cnclrpts\9-20-04 AVERY.wpd
Reviewed by: __Assistant Town Manager :.tJETown Attorney __Clerk Finance __Community Development Revised: 9115/04 9:49 am -,I Reformatted: 5/30/02
JI PAGE 2 SUBJECT: ADOPT RESOLUTION AUTHORIZING THE TOWN MANAGER TO EXECUTE A CONTRACT WITH WILLIAM AVERY & ASSOCIATES, INCORPORATED TO PROVIDE LABOR
RELATIONS SERVICES SEPTEMBER 14, 2004 ENVIRONMENTAL ASSESSMENTS: Is not a project defmed under CEQA, and no further action is required. FISCAL IMPACT: Funding for the proposed contract
services is available in the Adopted 2004-2005 Operating Budget. Budget savings associated with the vacant Human Resources Director position will be used to fund the contract. Ifadditional
funding is required, the Town Manager's Contingency fund will be used. Attachment: Resolution approving a contract with William Avery & Associates, Incorporated to provide labor relations
consulting services, and authorizing the Town Manager to execute the contract (w/Agreement for Labor Relations Consultant Services) Distribution: William Avery & Associates -3 Y2 N Santa
Cruz Avenue, Suite A, Los Gatos 95030
III1 RESOLUTION NO. RESOLUTION OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO EXECUTE A CONTRACT WITH WILLIAM AVERY & ASSOCIATES, INCORPORATED TO PROVIDE LABOR RELAnONS SERVICES
RESOLVED, by the Town Council of the Town of Los Gatos, County Santa Clara, State of California, that the contract with William Avery & Associates Inc. to provide labor relations
consulting services is hereby approved and that the Town Manager is authorized to execute the contract (attached) for an amount not to exceed $19,350. PASSED AND ADOPTED at a regular
meeting of the Town Council of the Town of Los Gatos, California, held on the__day of September, 2004 by the following vote: COUNCIL MEMBERS: AYES: ·NAYES: ABSENT: ABSTAIN: SIGNED:MAYOR
OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: CLERK OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA N:\MGR\AdminWorkFiles\cnclrpts\9-20-04 AVERY. RESOLUTION.wpd
AGREEMENT FOR LABOR RELATIONS CONSULTANT SERVICE.S TillS AGREEMENT is entered into this __ day of September, 2004, by and between the Town of Los Gatos, State of herein
called the nTown", and William Avery & Associates, Incorporated, engaged in providing labor relations consulting services, herein called the "Consultant". RECITALS A. The Town is in
the process of negotiating contracts with recognized Town employee bargaining units. B. The Town desires to engage a professional labor relations expert to provide consulting services
in conjunction with the negotiations and other labor relations and personnel functions because of Consultant's experience and qualifications to perform the de.sired work. . C. The Consultant
represents and affirms that it is qualified and willing to perform the desired work pursuant to this Agreement. AGREEMENTS NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: 1. Scope
of Services. The Consultant shall provide the labor relations and personnel services requested by the Town, including but not limited to: advise and consulting on grievance handling
and processing; negotiations with the Town's bargaining units; mediation and fact finding activities of such tmits; and other such advice, opinion or assistance requested by the Town
through the Town Manager or her designee(s). 2. Time of Perfonnance. The services of the Consultant are to commence upon the execution ofthis Agreement and continue through June 30,
2004. 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
represents and warrants to Town that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement any licenses, pennits, and
approvals which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the
Town cfLos Gatos. -, Page 1 of6
4. Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. 5. InformationlReport Handling{fown
Duties. 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 the 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. Additionally, Town
shall cooperative with Consultant ill the performance of this agreement as follows: a) Provide all information reasonably accessible to Town which may be helpful to Consultant in the
performance of his services; b) Provide a management team member to assist Consultant during negotiations sesslOns; c) Provide clerical assistance as Consultant may reasonably require
when on-site; and d) Provide a suitable location where negotiation sessions may be conducted. 6. Compensation. Compensation for Consultant's professional services shall be $215.00 per
hour and shall cumulatively Dot exceed $19,350.00 for labor relations and related services. Consultant shall not charge for clerical time, copies, phone calls, etc. incurred by Consultant
at Consultant's office. Each billing shall be accompanied by a brief report indicating the service provided and hours worked. Payment shall be net thirty (30) days. All invoices and
statements to the Town shall reference the Town's purchase order number and be addressed as follows: Invoices: Town of Los Gatos Attn: Accounts Payable P.O. Box 949 Los Gatos, CA 95030
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Statements: Town afLos Gatos Attn: Sandy Orliz P.O. Box 949 Los Gatos, CA 95030 7. Availability of Records. Consultant shall maintain the records supporting this billing for not less
than three (3) 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
duriD;g business hours upon written request of the Town. 8. Project Manager. The Project Manager for Consultant for the work under this Agreement shall be Ellen Aldridge. 9. Assignability
and Subcontracting. The services to be performed under this Agreement are unique and personal to the Consultant. No portion ofthese services shall be assigned or subcontracted without
the written consent of the Town. 10. Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to: To Town: To Consultant:
Debra Figone Town Manager 110 E. Main Street Los Gatos, CA 95031 William H. Avery President William Avery & Associates 3 Yz N. Santa Cruz Avenue, Suite A Los Gatos, CA 95030 or personally
delivered to Consultant to such address or such other address as Consultant designates in writing to Town. 11. 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 of the Town. As an independent contractor Consultant shall
not obtain any rights to retirement benefits or other benefits which accrue to To'WD. 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. Page 3 of6
Consultant agrees to testify in aay litigation brought regarding the subject of the wnrk 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. 12. 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 sheill 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. 13. Equal Employment Opportunity. Consultant warrants that it is aa eqlla! opportunity employer and shall comply with applicable regulations governing equal
employment oppornmity. 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, status, sexuiil 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. 14. Insurance. A. Minimum Scope of Insurance: --jI (1) (2) Consultant agrees to have and maintain, for the duration
of the contract, General Liability insurance policies insuring him and his firm. to an amount not less thaa: one million dollars ($1,000,000) combined single limit per occurrence for
bodily injury, personal injury aad property damage. Consultant agrees to have and maintain for the duration of the contract, an Automobile Liability insurance policy ensuring him and
his staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. Page 4 of 6
(3) 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. B. All Coverages: Each insurance policy required in this item shall be endorsed to state that coverage shall not be suspended,
voided, canceled, 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 of this Agreement with the Town Clerk. 15. Inderrmification. The Consultant shall save, keep and hold
harmless inderrmify 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 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 sub-consultant. 16. 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 provision of this Agreement. 17. 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 or Municipal Cowt of the County of Santa Clara. 18. 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 (15) days written notice of termination. In the event
of termination, the Consultant shall deliver to the Town all files, documents and reports performed to date by the Consultant. In 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 pursuant to Section
6 above, 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.
19 Amendment. Agreement is Consultant. No modification, waiver, effective unless made in mutual termination, writing and signed or· amendment of this by the Town and the ,I., 20. 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. Page 5 of6 A..-ryConlract 04.05.wpd
21. Entire Agreement. This Agreement, including Exhibit A attached hereto, constitutes the complete and exclusive statement of the Agreement between the Town and Consultant. No tenus,
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. IN WIlNESS WHEREOF, the Town and Consultant have executed this Agreement as of the date indicated on page one (1). Town of Los Gatos by: Debra Figone, Town Manager Recommended
by: S(\tLtd'-J Pamela S. Jacobs, Assistant Town Manager Approved as to Fonn: Orry P. Korb, Town Attorney ATTEST: Marian V. Cosgrove, Town Clerk Consultant by: William Avery & .Associates
William H. Avery, President Page 6 of6