Attachment 2 - TruePoint Agreement for Consultant ServicesTruePoint Agreement for Consultant Services – DigEplan (LCT Software) 2021 - 2026
AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT is made and entered into on July 1, 2021 by and between TOWN OF LOS GATOS, a
California municipal corporation (“Town”), and TruePoint Solutions (“Consultant”), whose address is
3262 Penryn Road, Suite 100-B, Loomis, CA 95650. This Agreement is made with reference to the
following facts.
I.RECITALS
1.1 The Town desires to engage the Consultant to provide DigEplan support services and training
for software provided by LCT Software.
1.2 The Consultant represents and affirms that it is willing to perform the desired work pursuant
to this Agreement.
1.3 The Consultant warrants it possesses the distinct professional skills, qualifications, experience,
and resources necessary to timely perform the services described in this Agreement. The
Consultant acknowledges that the Town has relied upon these warranties to retain the
Consultant.
II.AGREEMENTS
2.1 Scope of Services. The Consultant shall provide services as described in that certain Master
Services Agreement sent to the Town on April 14, 2021, which is hereby incorporated by
reference and attached as Exhibits A, B, and C.
2.2 Term and Time of Performance. This contract will remain in effect from July 1, 2021 to June
30, 2026. Consultant shall perform the services described in the Master Services Agreement
along with Exhibits A, B, and C.
2.3 Compliance with Laws. The Consultant shall comply with all applicable laws, codes,
ordinances, and regulations of governing federal, state, and local laws. The Consultant
represents and warrants to the Town that it has all licenses, permits, qualifications, and
approvals of whatsoever nature which are legally required for the Consultant to practice its
profession. The Consultant shall maintain a Town of Los Gatos business license pursuant to
Chapter 14 of the Code of the Town of Los Gatos.
2.4 Sole Responsibility. The Consultant shall be responsible for employing or engaging all persons
necessary to perform the services under this Agreement.
2.5 Information/Report Handling. All documents furnished to the 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 the Consultant's services
or at the Town's written request. All reports, information, data, and exhibits prepared or
assembled by the 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
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ATTACHMENT 2
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Consultant pursuant to this Agreement are for the purpose of evaluating a defined project,
and the Town's use of the information contained in the reports prepared by the Consultant in
connection with other projects shall be solely at the Town's risk, unless the Consultant
expressly consents to such use in writing. The Town further agrees that it will not appropriate
any methodology or technique of the Consultant which is and has been confirmed in writing by
the Consultant to be a trade secret of Consultant.
2.6 Compensation. Compensation for the Consultant's professional services shall not exceed
$89,474.00, inclusive of all costs. Payment shall be based upon Town approval of each task.
2.7 Billing. Billing shall be annually 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.
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. The Consultant shall maintain the records supporting this billing for
not less than three years following completion of the work under this Agreement. The
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 of the 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. The Consultant agrees to testify in any litigation
brought regarding the subject of the work to be performed under this Agreement. The
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 the Consultant or is based on allegations of the Consultant's negligent
performance or wrongdoing.
2.11 Conflict of Interest. The 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. The Consultant has no business holdings or agreements with any individual
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member of the Staff or management of the Town or its representatives nor shall it enter into
any such holdings or agreements. In addition, The 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. The Consultant shall not knowingly and shall take reasonable steps to ensure
that it does not employ a person having such an interest in the performance of this
Agreement. If after employment of a person, the Consultant discovers it has employed a
person with a direct or indirect interest that would conflict with its performance of this
Agreement, the Consultant shall promptly notify the Town of this employment relationship,
and shall, at the Town's sole discretion, sever any such employment relationship.
2.12 Equal Employment Opportunity. The Consultant warrants that it is an equal opportunity
employer and shall comply with applicable regulations governing equal employment
opportunity. Neither the 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 and Housing Act.
III. INSURANCE AND INDEMNIFICATION
3.1 Minimum Scope of Insurance:
i. The 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. The 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.
iii. The Consultant shall provide to the Town all certificates of insurance, with
original endorsements effecting coverage. The Consultant agrees that all
certificates and endorsements are to be received and approved by the Town
before work commences.
iv. The Consultant agrees to have and maintain, for the duration of the contract,
professional liability insurance in amounts not less than one million dollars
($1,000,000) which is sufficient to insure the Consultant for professional errors
or omissions in the performance of the particular scope of work under this
Agreement.
General Liability:
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i. 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 the Consultant; and
premises owned or used by the Consultant. This requirement does not apply
to the professional liability insurance required for professional errors and
omissions.
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 in 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, or 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.
3.3 Workers’ Compensation. In addition to these policies, the 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, the
Consultant shall ensure that all subcontractors employed by the 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 of this Agreement.
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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, and reports performed to date by the Consultant. In the event of such
termination, the Town shall pay the 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
Attn: Town Clerk
110 E. Main Street
Los Gatos, CA 95030
TruePoint Solutions
Attn: Keith Hobday
3262 Penryn Road, Suite 100-B
Loomis, CA 95650
or personally delivered to the Consultant to such address or such other address as the
Consultant designates in writing to the 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 the 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.
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IN WITNESS WHEREOF, the Town and the Consultant have executed this Agreement.
Town of Los Gatos by:
Laurel Prevetti, Town Manager
Recommended by:
Joel Paulson,
Community Development Director
Consultant, by:
Keith Hobday, Partner
Approved as to Form:
Robert Schultz, Town Attorney
Attest:
Shelley Neis, MMC, CPMC
Town Clerk