04 Attachment 1 - Agreement for Consultant Services with ZAG Technical Services
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ATTACHMENT 1
05/2011
AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT is made and entered into on January 22, 2020 by and between TOWN OF
LOS GATOS, a California municipal corporation, (“Town”) and ZAG Technical Services Inc.
(“Consultant”), whose address 645 River Oaks Pkwy, San Jose, CA 95134. This Agreement is
made with reference to the following facts. This contract will remain in effect from January 22,
2020 to June 30, 2023.
I. RECITALS
1.1 The Town desires to engage Consultant to provide support for network security
improvements and professional services for network, server and PC hardware and software,
installations, maintenance, upgrades, trouble shooting, and special projects at the request of
the Information Systems Manager or designee.
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.
II. AGREEMENTS
2.1 Scope of Services. Consultant shall provide services including network server hardware and
software configuration, troubleshooting and maintenance.
2.2 Term and Time of Performance. Consultant shall provide services as described in this
agreement as follows: This contract will remain in effect from January 22, 2020 to June 30,
2023. ZAG agrees to respond within four (4) hours as required by the Town of Los Gatos
regardless of when the request is made.
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 of the
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.
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
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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.
2.6 Compensation. Compensation for Consultant's professional services will match rates listed
below and shall not exceed $500,000. Payment shall be based upon Town approval of each
task.
Solution Architect: $180 per hour
System Engineer: $150/hour
Desktop Technician: $115/hour unless reserved in block of two (2) days then $95/hour
Roles:
Solution Architect: Advanced network and server support, Wireless Network support,
System Engineer: Basic network and server support, advanced end user support,
Desktop Technician: End user desktop support
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.
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.
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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. 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.
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.
III. INSURANCE AND INDEMNIFICATION
3.1 Minimum Scope of Insurance:
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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.
iii. 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.
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 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.
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.
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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.
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 of this Agreement.
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. 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, 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.
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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
ZAG Technical Services Inc.
Attn: James Hunton, Principal
645 River Oaks Pkwy
San Jose, CA 95134
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.
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IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement.
Town of Los Gatos by:
Laurel Prevetti, Town Manager
Recommended by:
Chris Gjerde, IT Manager
Consultant, by:
Title
Approved as to Form:
Robert Schultz, Town Attorney