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Attachment 1 - Draft ARC Agreement 1 OF 9 ATTACHMENT 1 PURCHASE AND SERVICE AGREEMENT THIS AGREEMENT is dated for identification this 7th day of September 2021 and is made by and between TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and ARC Document Solutions, LLC (“Supplier”), whose principal address is 1981 N. Broadway, Suite 385, Walnut Creek, CA 94596. This Agreement is made with reference to the following facts. I. RECITALS 1.1 Town sought proposals in 2016 for the initial purchase and installation described in this Agreement, and Supplier was found to be the lowest responsible supplier for this purchase. 1.2 Supplier represents that it is a qualified and competent supplier of the items to be purchased under this Agreement. 1.3 The Town desires to engage Supplier to produce panels that will display artwork transferred from digital images onto 41”x44” adhesive back vinyl, with a UV protection and graffiti/vandal proof coating. The Supplier shall then install the adhesive panels in the location to the satisfaction of the Town Manager' s Office no later than October 31, 2021. 1.4 The Supplier represents and affirms that it is qualified and willing to perform the desired work pursuant to this Agreement. II. AGREEMENTS 2.1 Supplies and Terms. Supplier hereby agrees to deliver to Town at the Forbes Mill Footbridge as per the items and materials described in Exhibits A and B, which is attached hereto and incorporated by reference. The terms and conditions are as follows: (1) Price. Town shall pay Supplier the amounts defined in Exhibit C, which include sales tax and delivery charges. Payment shall be net 30 days from delivery. (2) Installation. The installation of the items and materials shall be no later than October 31, 2021. Installation shall be made between 8:00 a.m. and 5:00 p.m. on weekdays that are not Town holidays or furlough days. The Supplier is responsible for identifying and installation date and time convenient and agreeable to the Town manager’s Office. 2.2 Time of the Essence. Prompt delivery of the items and materials is essential to this Agreement. 2 OF 9 ATTACHMENT 1 2.3 Scope of Services. Supplier shall provide services as described in that certain Scope of Work in Exhibits A and B and that certain Proposal sent to the Town on August 6, 2021 which are hereby incorporated by reference and attached as Exhibit C. 2.4 Time of Performance. Notwithstanding Section 2.1(2), this agreement will remain in effect until December 31, 2022. 2.5 Compliance with Laws. The Supplier shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Supplier represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Supplier to practice its profession. Supplier shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos. 2.6 Sole Responsibility. Supplier shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. 2.7 Information/Report Handling. All documents furnished to Supplier by the Town and all reports and supportive data prepared by the Supplier under this Agreement are the Town’s property and shall be delivered to the Town upon the completion of Supplier's services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by Supplier in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Supplier shall not make any of the these documents or information available to any individual or organization not employed by the Supplier or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Supplier 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 Supplier in connection with other projects shall be solely at Town's risk, unless Supplier expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Supplier which is and has been confirmed in writing by Supplier to be a trade secret of Supplier. 2.8 Compensation. Compensation for the supplies and materials delivered and for supplier's professional services shall not exceed $17,130.65 inclusive of all costs. Payment shall be based upon Town approval of each task. 2.9 Billing. Billing shall be by invoice within thirty (30) days of the rendering of the services 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. 3 OF 9 ATTACHMENT 1 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 2.10 Availability of Records. Supplier shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. Supplier shall make these records available to authorized personnel of the Town at the Supplier's offices during business hours upon written request of the Town. 2.11 Assignability and Subcontracting. The services to be performed under this Agreement are unique and personal to the Supplier. No portion of these services shall be assigned or subcontracted without the written consent of the Town. 2.12 Independent Contractor. It is understood that the Supplier, 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 Supplier 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. Supplier agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Supplier 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 Supplier or is based on allegations of Supplier's negligent performance or wrongdoing. 2.13 Conflict of Interest. Supplier understands that its professional responsibilities are solely to the Town. The Supplier has and shall not obtain any holding or interest within the Town of Los Gatos. Supplier 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, Supplier 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. Supplier 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, Supplier discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Supplier shall 4 OF 9 ATTACHMENT 1 promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 2.14 Equal Employment Opportunity. Supplier warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Supplier 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. III. INSURANCE AND INDEMNIFICATION 3.1 Minimum Scope of Insurance: i. Supplier 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. Supplier 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. Supplier shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Supplier agrees that all certificates and endorsements are to be received and approved by the Town before work commences. iv. Supplier 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 Supplier for professional errors or omissions in the performance of the particular scope of work under this agreement. General Liability: 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 Supplier; products and completed operations of Supplier, premises owned or used by the Supplier. This requirement does not apply to the professional liability insurance required for professional errors and omissions. 5 OF 9 ATTACHMENT 1 ii. The Supplier'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 Supplier'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 Supplier'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 of this agreement with the Town Clerk Administrator. 3.3 Workers’ Compensation. In addition to these policies, Supplier 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, Supplier shall ensure that all subcontractors employed by Supplier provide the required Workers' Compensation insurance for their respective employees. 3.4 Indemnification. The Supplier 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 Supplier, or any of the Supplier's officers, employees, or agents or any sub-contractor. 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. 4.2 Severability. If any term of this Agreement is held invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain in effect. 6 OF 9 ATTACHMENT 1 4.3 Warranty. Supplier shall remedy any defects due to faulty materials and/or workmanship and pay for any damages to other work and/or existing facilities resulting therefrom which shall appear within a period of one year from the date of recording of final acceptance. 4.4 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. 4.5 Termination of Agreement. The Town and the Supplier 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 Supplier shall deliver to the Town all supplies and services scheduled to be delivered to Town within that fifteen (15) day period. 4.6 Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Supplier. 4.7 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. 4.8 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 ARC Document Solutions, LLC Prizcyla Chan, Account Executive 821 Martin Avenue Santa Clara, CA 95050 OR personally delivered to Supplier to such address or such other address as Supplier designates in writing to Town. 4.10 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. /// 7 OF 9 ATTACHMENT 1 4.11 Entire Agreement. This Agreement, including all Exhibits, constitutes the complete and exclusive statement of the Agreement between the Town and Supplier. 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. IN WITNESS WHEREOF, the Town and Supplier have executed this Agreement. Town of Los Gatos by: Laurel Prevetti, Town Manager Recommended by: Arn Andrews, Assistant Town Manager ARC Document Solutions, LLC by: By: Title Approved as to Form: Robert Schultz, Town Attorney Attest: Shelley Neis, MMC, CPMC, Town Clerk 8 OF 9 ATTACHMENT 1 EXHIBIT A Scope of Work – Art Panel Production/Installation Digital photos taken of the artwork will need to be transferred onto a semi-permanent vinyl decal that is for outdoor use with a UV protection and graffiti/vandal proof coating. It is the Town’s preference for the panels to have up to a 5-year lifespan. The panels will be 41” x 44” and applied directly to the bridge in an area to be designated by the Town Manager’s Office. Only a portion of the bridge’s current artwork will be replaced within the scope of this project. Therefore, the vendor shall be responsible to coordinate with the Town on identifying which panels are to be replaced at this time. 9 OF 9 ATTACHMENT 1 EXHIBIT B Summary of Scope of Work • Production transfer of 82 digital photos of artwork • 41” x 44” semi-permanent vinyl decal panels for outdoor use with UV protection and graffiti/vandal proof coating • 5-year life span • Panel installation