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HomeMy WebLinkAboutAgree-Virtual Project ManagerAGREEMENT TO PERFORM PROFESSIONAL SERVICES This agreement for the provision of Construction Management Software and Software Training ("Agreement") is made and entered in this 5th day of September, 2023 ("Effective Date"), by and between the City of Redlands, a municipal corporation ("City") and Virtual Project Manager, LLC, an Oregon Limited Liability Company ("Consultant"). City and Consultant are sometimes individually referred to herein as a "Party" and, together, as the "Parties." In consideration of the mutual promises contained herein, City and Consultant agree as follows: ARTICLE 1— ENGAGEMENT OF CONSULTANT 1.1 City hereby engages Consultant to provide construction management software and software training services for City (the "Services"). 1.2 The Services shall be performed by Consultant in a professional manner, and Consultant represents that it has the skill and the professional expertise necessary to provide the Services to City at a level of competency presently maintained by other practicing professional consultants in the industry providing like and similar types of Services. ARTICLE 2 — SERVICES OF CONSULTANT 2.1 The Services that Consultant shall perform are more particularly described in Exhibit "A," titled "Scope of Services," which is attached hereto and incorporated herein by this reference. 2.2 Consultant shall comply with applicable federal, state and local laws and regulations in the performance of this Agreement including, but not limited to, any applicable State prevailing wage laws. ARTICLE 3 — RESPONSIBILITIES OF CITY 3.1 City designates John R. Harris, Municipal Utilities and Engineering Department Director, as City's representative with respect to performance of the Services, and such person shall have the authority to transmit instructions, receive information, interpret and define City's policies and decisions with respect to performance of the Services. ARTICLE 4 — PERFORMANCE OF SERVICES 4.1 Consultant shall perform and complete the Services in a prompt and diligent manner in accordance with the schedule set forth in Exhibit "A," titled "Scope of Services and Fee Schedule," which is attached hereto and incorporated herein by reference. 4.2 The Term of this Agreement shall be for a period of three (3) years from the Effective Date of this Agreement (the "Initial Term"). The City shall have the option to extend the Initial Term of this Agreement by two (2) additional one (1) year extensions (each, an 1 i;\cmo\Agreements\Virtual Project Manager FY22-0211.doc-jm "Extended Term"), on the same terms and conditions, by providing written notice to Consultant at least thirty (30) days prior to the expiration of the Initial Term or any Extended Term. 4.3 If Consultant's Services include deliverable electronic visual presentation materials, such materials shall be delivered in a form, and made available to City, consistent with City Council -adopted policy for the same. It shall be the obligation of Consultant to obtain a copy of such policy from City staff. ARTICLE 5 — PAYMENTS TO CONSULTANT 5.1 The total compensation for Consultant's performance of the Services shall be as follows: Initial Term: not to exceed the amount of thirty-six thousand dollars ($36,000). Extended Term: not to exceed the amount of twelve thousand dollars ($12,000) annually. The total contract, with extensions shall not exceed sixty thousand dollars ($60,000). City shall pay Consultant on a time and materials basis up to the not to exceed amount in accordance with Exhibit "A," titled ("Scope of Services and Fee Schedule") which is attached hereto and incorporated herein by reference. 5.2 Consultant shall submit monthly invoices to City describing the Services performed during the preceding month. Consultant's invoices shall include a brief description of the Services performed, the dates the Services were performed, the number of hours spent and by whom, and a description of reimbursable expenses related to the Services. City shall pay Consultant no later than thirty (30) days after receipt and approval by City of Consultant's invoice. 5.3 Any notice or other communication required, or which may be given, pursuant to this Agreement, shall be in writing. Any such notice shall be deemed delivered (i) on the date of delivery in person; (ii) five (5) days after deposit in first class registered mail, with return receipt requested; (iii) on the actual delivery date if deposited with an overnight courier; or (iv) on the date sent by facsimile or electronic mail transmission (including PDF), if confirmed with a copy sent contemporaneously by first class, certified, registered or express mail; in each case properly posted and fully prepaid to the appropriate address set forth below, or such other address as a Party may provide notice in accordance with this section: CITY: City Clerk City of Redlands 35 Cajon Street P.O. Box 3005 (mailing) Redlands, CA 92373 2 I:\cmo\Agreements\Virtual Project Manager FY22-0211.doc-jm CONSULTANT: Lex Zuber, CEO -President Virtual Project Manager, LLC P.O. Box 8127 (mailing) Bend, OR 97701 lexAvirtual-pm.com (760) 881-6627 ARTICLE 6 — INSURANCE AND INDEMNIFICATION 6.1 The following insurance coverage required by this Agreement shall be maintained by Consultant for the duration of its performance of the Services. Consultant shall not perform any Services unless and until the required insurance listed below is obtained by Consultant. Consultant shall provide City with certificates of insurance and endorsements evidencing such insurance prior to commencement of the Services. Insurance policies shall include a provision prohibiting cancellation or modification of the policy except upon thirty (30) days prior written notice to City. A. Workers' Compensation and Employer's Liability insurance in the amount that meets statutory requirements with an insurance carrier acceptable to City, or certification to City that Consultant is self -insured or exempt from the workers' compensation laws of the State of California. Consultant shall execute and provide City with Exhibit "B," titled "Workers' Compensation Insurance Certification," which is attached hereto and incorporated herein by this reference, prior to performance of the Services. B. Comprehensive General Liability insurance with carriers acceptable to City in the minimum amount of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate, for public liability, property damage and personal injury is required. City shall be named as an additional insured and such insurance shall be primary and non-contributing to any insurance or self-insurance maintained by City. C. Consultant shall secure and maintain professional liability insurance throughout the term of this Agreement in the amount of One Million Dollars ($1,000,000) per claim made. D. Business Auto Liability coverage, with minimum limits of One Million Dollars ($1,000,000) per occurrence, combined single limit bodily injury liability and property damage liability. This coverage shall include all Consultant owned vehicles used in connection with Consultant's provision of the Services, hired and non -owned vehicles, and employee non -ownership vehicles. City shall be named as an additional insured and such insurance shall be primary and non-contributing to any insurance or self-insurance maintained by City. E. Consultant is expressly prohibited from assigning or subcontracting any of the Services without the prior written consent of City. In the event of mutual agreement by the Parties to assign or subcontract a portion of the Services, Consultant shall add such assignee or subcontractor as an additional insured to the insurance policies required hereby and provide City with the insurance endorsements prior to any Services being performed by the assignee or subcontractor. 6.2 Consultant shall defend, indemnify and hold harmless City and its elected and appointed officials, employees and agents from and against any and all claims, losses or liability, including attorneys' fees, arising from injury or death to persons or damage to property 3 I:\emo\Agreements\Virtual Project Manager FY22.0211.docjm occasioned by any negligent act or omission by, or the willful misconduct of, Consultant, or its officers, employees and agents in performing the Services. ARTICLE 7 — CONFLICTS OF INTEREST 7.1 Consultant covenants and represents that it does not have any investment or interest in any real property that may be the subject of this Agreement or any other source of income, interest in real property or investment that would be affected in any manner or degree by the performance of Consultant's Services. Consultant further covenants and represents that in the performance of its duties hereunder, no person having any such interest shall perform any Services under this Agreement. 7.2 Consultant agrees it is not a designated employee within the meaning of the Political Reform Act because Consultant: A. Does not make a governmental decision whether to: (i) approve a rate, rule or regulation, or adopt or enforce a City law; (ii) issue, deny, suspend or revoke any City permit, license, application, certification, approval, order or similar authorization or entitlement; (iii) authorize City to enter into, modify or renew a contract; (iv) grant City approval to a contract that requires City approval and to which City is a party, or to the specifications for such a contract; (v) grant City approval to a plan, design, report, study or similar item; (vi) adopt, or grant City approval of, policies, standards or guidelines for City or for any subdivision thereof. B. Does not serve in a staff capacity with City and in that capacity, participate in making a governmental decision or otherwise perform the same or substantially the same duties for City that would otherwise be performed by an individual holding a position specified in City's Conflict of Interest Code under Government Code section 87302. 7.3 In the event City determines that Consultant must disclose its financial interests, Consultant shall complete and file a Fair Political Practices Commission Form 700, Statement of Economic Interests, with the City Clerk's office pursuant to the written instructions provided by the City Clerk. ARTICLE 8 — GENERAL CONSIDERATIONS 8.1 In the event any action is commenced to enforce or interpret any of the terms or conditions of this Agreement the prevailing Party shall, in addition to any costs and other relief, be entitled to the recovery of its reasonable attorneys' fees, including fees for the use of in-house counsel by a Party. 4 I:\omo\Agreements\Virtual Project Manager FY22-0211,doc jm 8.2 Consultant shall not assign any of the Services, except with the prior written approval of City and in strict compliance with the terms and conditions of this Agreement. Any assignment or attempted assignment without such prior written consent may, in the sole discretion of City, result in City's immediate termination of this Agreement. 8.3 Consultant is for all purposes under this Agreement an independent contractor and shall perform the Services as an independent contractor. Neither City nor any its agents shall have control over the conduct of Consultant or Consultant's employees, except as herein set forth. Consultant shall supply all necessary tools and instrumentalities required to perform the Services. Assigned personnel employed by Consultant are for its account only, and in no event shall Consultant or personnel retained by it be deemed to have been employed by City or engaged by City for the account of, or on behalf of City. Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent, nor shall Consultant have any authority, express or implied, to bind City to any obligation. 8.4 This Agreement may be terminated by City, in its sole discretion, by providing not less than five (5) days prior written notice to Consultant of City's intent to terminate. If this Agreement is terminated by City, an adjustment to Consultant's compensation shall be made, but (1) no amount shall be allowed for anticipated profit or unperformed Services, and (2) any payment due Consultant at the time of termination may be adjusted to the extent of any additional costs to City occasioned by any default by Consultant. Upon receipt of a termination notice, Consultant shall immediately discontinue its provision of the Services and, within five (5) days of the date of the termination notice, deliver or otherwise make available to City, copies (in both hard copy and electronic form, where applicable) of project related data, design calculations, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by Consultant in performing the Services. Consultant shall be compensated on a pro-rata basis for Services completed up to the date of termination. 8.5 Consultant shall maintain books, ledgers, invoices, accounts and other records and documents evidencing costs and expenses related to the Services for a period of three (3) years, or for any longer period required by law, from the date of fmal payment to Consultant pursuant to this Agreement. Such books shall be available at reasonable times for examination by City at the office of Consultant. 8.6 This Agreement, including the Exhibits incorporated herein by reference, represents the entire agreement and understanding between the Parties as to the matters contained herein, and any prior negotiations, written proposals or verbal agreements relating to such matters are superseded by this Agreement. Except as otherwise provided for herein, any amendment to this Agreement shall be in writing, approved by City and signed by City and Consultant. 8.7 This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws provisions. The Parties agree that all actions or proceedings arising in connection with this Agreement shall be tried 5 I:\cmo\Agreementa\Virtual Project Manager FY22-0211,doc jm and litigated only in the state courts located in San Bernardino County, California, and the federal courts located in Riverside County, California. 8.8 If one or more of the sentences, clauses, paragraphs or sections contained in this Agreement is declared invalid, void or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair or invalidate the remaining sentences, clauses, paragraphs or sections contained herein, unless to do so would deprive a Party of a material benefit of its bargain under this Agreement. IN WITNESS WHEREOF, duly authorized representatives of City and Consultant have signed in confirmation of this Agreement. CITY OF By: die Tejeda, Mayor ATTEST: e Donaldson, City Clerk 6 I:\cmo\Agreements\Virtual Project Manager FY22-0211.doc jm Virtual Project Manager, LLC 0-President EXHIBIT "A" SCOPE OF SERVICES AND FEE SCHEDULE The proposed construction management software shall provide the following integrated functionality (meaning the individual components utilize a shared repository of information and processes to ensure that all users have access to the same information, that redundant data entry is not required and that each of the components has a similar "look and feel": 1) Consultant shall provide the appropriate resources to modify or enhance applications to ensure the software will support City's business requirements; 2) Consultant shall customize standard forms (up to 10 forms) to meet the City's need. The City will provide markups on various standard forms within the City. The Consultant will be required to create the forms with the City provided files; 3) Consultant shall develop document management system for incoming and outgoing correspondence including provided recommendations; 4) Consultant shall provide training to City staff consisting of up to 40 hours of onsite training for various functions within the software including, but not limited to, change management, change orders, progress payment processing, submittal review, requests for information review and documentation of correspondence. The training period may be broken into various phases, based on City needs; 5) Consultant shall provide support for troubleshooting, problem resolution, enhancement and support services for the software; 6) At the discretion of City, consultant support shall be assigned and resided at the City's office during business hours; 7) Software shall allow an unlimited number of users; 8) Software shall have a place to store/attach all documents pertinent to the project; plans, specifications, notice to proceed, City forms, etc.; 9) Software shall allow daily logs to be entered in the field and have a place to track labor, material and equipment on each day with pull -downs entered at the start of a job, as well as attach all necessary documents while in the field; 10) Daily logs shall time stamp all documents entered; 11) Software shall produce weekly statement of working days; 12) Software shall have the option of calendar days or working days and calculate the completion date given the start date and number of days in contract; 13) Software shall allow both the City and contractor to enter requests for information (RFI's), submittals, payment applications and change orders; 14) Software shall allow an unlimited number of users; 15) Software shall have a storm water module; 16) Software shall send out "ball -in -court" emails to remind people of outstanding tasks; 17) Software shall track each submittal review and provide a summary of how many reviews, comments made and days associated with the review; 7 I:\cmo\ AgreementsWirtual Project Manager FY22-0211.doc jm 18) Software shall have an approval process for change orders and payments; 19) Software shall allow certified payroll (CPR) to be submitted from contractor and check CPR for violations; 20) Software shall have a place to attach preliminary notices so contractor is aware of the releases they will need; 21) Data migration that occurs in the future shall be planned and managed by City personnel with consultants assistance; 22) The City is currently using LASERFICHE for document management, upon termination of the contract, consultant shall work with the City and/or LASERFICHE directly (or current document management consultant) to migrate all necessary data; 23) Software shall be guaranteed a 99.999% uptime; 24) At any given time, should the City need a copy of the software database, the vendor shall be able to export all databases into a backup file that can be imported into a Microsoft Structured Query Language (SQL) Server database; 25) The hosted site must provide a secure connection using Secure Sockets Layer (SSL); 26) Services shall be made available through redundant datacenters to increase system availability; 27) Software systems shall be backed up daily to ensure City data is protected in anticipation of disaster recovery; and 28) Technical support must be available for City Staff at a minimum during normal business operations Mon -Fri 7:30 — 5:30 PST. Year 1-5: $12,000/year nlimited Concurrently running projects open and $1,000.00/Month Technical support(8-5 PST' itional cos 8 I;\emo\Agreements\Virtual Project Manager FY22-0211.doc-jm $0 EXHIBIT B WORKERS' COMPENSATION INSURANCE CERTIFICATION Every employer, except the State, shall secure the payment of compensation in one or more of the following ways: (a) (b) CHECK ONE By being insured against liability to pay compensation by one or more insurers duly authorized to write compensation insurance in this State. By securing from the Director of Industrial Relations, a certificate of consent to self -insure, either as an individual employer, or as one employer in a group of employers, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self -insure and to pay any compensation that may become due to his or her employees. I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for Workers' Compensation or to undertake self- insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work and activities required or permitted under this Agreement. (Labor Code §1861). I affirm that at all times, in performing the work and activities required or permitted under this Agreement, I shall not employ any person in any manner such that I become subject to the workers' compensation laws of California. However, at any time, if I employ any person such that I become subject to the workers' compensation laws of California, immediately I shall provide the City with a certificate of consent to self -insure, or a certification of workers' compensation insurance. I certify under penalty of perjury under the laws of the State of California that the information and representations made in this certificate are true and correct. Virtual Project Manager, LLC CEO -President 9 I:\cmo\Agreements\Virtual Project Manager FY22-0211.doc-jm Date: "" (9\--S