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ORIGINAL
CITY -WIDE CABLE PROJECT
BID 2015 -2
BID AND CONTRACT DOCUMENTS
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CONTRACT
THIS CONTRACT is made this `• ` day of k , 2015, in the County of
Los Angeles, State of California, by and between the Cit of Arcadia, hereinafter called
City, and X -Act Technology Solutions, Inc., 2912 Dunkirk Drive, Oxnard, CA 93035
hereinafter called Contractor. The City and the Contractor for the considerations stated
herein agree as follows:
ARTICLE 1. SCOPE OF WORK. The Contractor shall perform all Work within the time
stipulated the Contract and shall provide all labor, materials, equipment, tools, utility
services, and transportation to complete all of the Work required in strict compliance
with the Contract Documents as specified in Article 5 below for the following Project:
CiTY -WIDE CABLE PROJECT
BiD 2015 -2
The Contractor and its surety shall be liable to the City for any damages arising as a
result of the Contractor's failure to comply with this obligation.
ARTICLE 2. TIME FOR COMPLETION.
2.1 The Work shall be commenced on the date stated in the City's Notice to
Proceed. The Contractor shall complete all Work required by the Contract
Documents within forty -five (45) calendar days from the commencement date
stated in the Notice to Proceed. By its signature hereunder, Contractor agrees
the time for completion set forth above is adequate and reasonable to complete
the Work.
2.2 Contractor shall coordinate the Work with the other work being performed on the
Project, in accordance with those schedules as may be issued from time to time
during the performance of the Work, and any other scheduling requirements
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listed in this Contract, so as not to delay, impede, obstruct, hinder or interfere
with the commencement, progress or completion of the whole or a
Work or other work on the Project. P Y Part of the
2.3 The Contractor shall participate and cooperate with the City in the development
of schedules and other efforts to achieve timely completion of the Work providing
information for the scheduling of the times and sequence of operations required
for its Work ( "Contractor Schedule ") to meet City's overall master project
schedule requirements ( "Master Schedule "). The Contractor shall continuously
monitor the Master Schedule so as to be fully familiar with the timing, phasing
and sequence of operations of the Work and of other work on the Project, and
shall execute the Work in accordance with the requirements of the Master
Schedule including any revisions thereto. The Contractor shall notify the
Engineer within 48 hours of any slippage in the Contractor Schedule and shall
submit a detailed recovery plan to the Engineer for approval within five (5)
calendar days of such notice.
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2.4 Should the progress of the Work or of the Project be delayed disrupted,
hindered, obstructed, or interfered with by any fault or neglect or act or failure to
act of the Contractor or any of its officers, agents, servants, employees,
subcontractors or suppliers so as to cause any additional cost, expense, liability
or damage to the City, the Engineer or any consultants retained by the City for
the Project, including legal fees and disbursements incurred by the City, the
Engineer, or the consultants retained by the City for the Project, (whether
incurred in defending claims arising from such delay or in seeking
reimbursement and indemnity from the Contractor and its surety hereunder or
otherwise) or any damages or additional costs or expenses for which the City,
the Engineer or the consultants retained by the City for the Project, may or shall
become liable, the Contractor and its surety shall and does hereby agree to
compensate the City, the Engineer or the consultants retained by the City for the
Project„ for and indemnify them against all such costs, expenses, damages and
liability.
2.5 The City, in its sole discretion, may direct the Contractor to work overtime and, if
so directed, the Contractor shall work said overtime and, provided that the
Contractor is not in default under any of the terms or provisions of this Contract
or of any of the other Contract Documents, the City will pay the Contractor for
such actual additional wages paid, if any, at the prevailing wage rates plus taxes
imposed by law on such additional wages, plus workers' compensation
insurance, liability insurance and levies on such additional wages if required to
be paid by the Contractor.
2.6 If, however, the progress of the Work or of the Project is delayed by any fault or
neglect or act or failure to act of the Contractor or any of its officers, agents,
servants, employees, subcontractors or suppliers, then the Contractor shall, in
addition to all of the other obligations imposed by this Contract upon the
Contractor in such case, and at its own cost and expense, work such overtime as
may be necessary to make up for all time lost in the completion of the Work and
of the Project due to such delay. Should the Contractor fail to make up for the
time lost by reason of such delay, the Engineer or City shall have the right to
cause other contractors to work overtime and to take whatever other action it
deems necessary to avoid delay in the completion of the Work and of the
Project, and the cost and expense of such overtime and/or such other action
shall be borne solely by the Contractor.
ARTICLE 3. CONTRACT PRICE. The City shall pay to the Contractor as full
compensation for the performance of the Contract, subject to any additions or
deductions as provided in the Contract Documents, and including all applicable taxes
and costs, the sum of SEVENTY -FOUR THOUSAND DOLLARS AND NO CENTS,
($74,000.00). Payment shall be made as set forth in the General Conditions.
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NARTICLE 4. PAYMENTS
' 4.1 The City shall make monthly progress payments following receipt of undisputed
and properly submitted payment requests. Contractor shall be paid a sum equal
to ninety -five percent (95 %) of the value of Work performed up to the last day of
the previous month, less the aggregate of previous payments.
4.2 The Contractor shall, after the full completion of The Work, submit a final
payment application. All prior progress estimates shall be subject to correction in
the final estimate and payment.
4.3 Unless otherwise required by law, the final payment of five percent (5 %) of the
value of the Work, if unencumbered, shall be paid no later than sixty (60) Days
after the date of recordation of the Notice of Completion.
4.4 Acceptance by Contractor of the final payment shall constitute a waiver of all
claims against the City arising from this Contract.
4.5 Payments to the Contractor shall not be construed to be an acceptance of any
defective work or improper materials, or to relieve the Contractor of its obligations
under the Contract Documents.
4.6 The Contractor shall submit with each payment request the Contractor's
conditional waiver of lien for the entire amount covered by such payment request,
as well as a valid unconditional waiver of lien from the Contractor and all
subcontractors and materialmen for all work and materials included in any prior
invoices. Waivers of lien shall be in the forms prescribed by California Civil Code
sections 8132, 8134, 8136, and 8138. Prior to final payment by the City, the
Contractor shall submit a final waiver of lien for the Contractor's work, together
with releases of lien from any subcontractor or materialmen.
ARTICLE 5. PAYMENTS WITHHELD AND BACKCHARGES In addition to amounts
which the City may retain under other provisions of the Contract Documents the City
may withhold payments due to Contractor as may be necessary to cover:
a. Stop Notice Claims.
b. Defective work not remedied.
C. Failure of Contractor to make proper payments to its subcontractors or
suppliers.
d. Completion of the Contract if there exists a reasonable doubt that the
Work can be completed for balance then unpaid.
e. Damage to another contractor or third party.
f. Amounts which may be due the City for claims against Contractor.
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0 g. Failure of Contractor to keep the record ( "as- built ") drawings up to date.
h. Failure to provide updates on the construction schedule.
i. Site clean up.
j. Failure of the Contractor to comply with requirements of the Contract
Documents.
k. Liquated damages.
1. Legally permitted penalties.
Upon completion of the Contract, the City will reduce the final Contract amount to reflect
costs charged to the Contractor, backcharges or payments withheld pursuant to the
Contract Documents.
ARTICLE 6. CHANGES AND EXTRA WORK
6.1 The City, without invalidating the Contract, may order changes in the Work
consisting of additions, deletions or other revisions, the Contract amount and
Contract time being adjusted accordingly. All such changes in the Work shall be
authorized by Change Order, in the form attached hereto and incorporated
herein as Exhibit 'A," and shall be performed under the applicable conditions of
the Contract Documents. A Change Order signed by the Contractor indicates
the Contractor's agreement therewith, including any adjustment in the Contract
amount or the Contract time, and the full and final settlement of all costs (direct,
indirect and overhead) related to the Work authorized by the Change Order.
6.2 All claims for additional compensation to the Contractor shall be presented in
writing before the expense is incurred and will be adjusted as provided herein.
No work shall be allowed to lag pending such adjustment, but shall be promptly
executed as directed, even if a dispute arises. No claim will be considered after
the work in question has been done unless a written contract change order has
been issued or a timely written notice of claim has been made by Contractor.
Contractor shall not be entitled to claim or bring suit for damages, whether for
loss of profits or otherwise, on account of any decrease or omission of any item
or portion of Work to be done. Whenever any change is made as provided for
herein, such change shall be considered and treated as though originally
included in the Contract, and shall be subject to all terms, conditions and
provisions of the original Contract.
6.3 Owner Initiated Change. The Contractor must submit a complete cost proposal,
including any change in the Contract time, within seven (7) Days after receipt of
a scope of a proposed change order, unless the City requests that proposals be
submitted in less than seven (7) Days.
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6.4 Contractor Initiated Change. The Contractor must give written notice of a
proposed change order required for compliance with the Contract Documents
within seven (7) Days of discovery of the facts giving rise to the proposed
change order.
6.5 Whenever possible, any changes to the Contract amount shall be in a lump sum
mutually agreed to by the Contractor and the City.
6.6 Price quotations from the Contractor shall be accompanied by sufficiently
detailed supporting documentation to permit verification by the City.
6.7 If the Contractor fails to submit the cost proposal within the seven (7) Day period
(or as requested), the City has the right to order the Contractor in writing to
commence the work immediately on a force account basis and/or issue a lump
sum change to the contract price in accordance with the City's estimate of cost.
If the change is issued based on the City estimate, the Contractor will waive its
right to dispute the action unless within fifteen (15) Days following completion of
the added /deleted work, the Contractor presents written proof that the City's
estimate was in error.
6.8 Estimates for lump sum quotations and accounting for cost - plus - percentage work
shall be limited to direct expenditures necessitated specifically by the subject
extra work, and shall be segregated as follows:
(a) Labor. The costs of labor will be the actual cost for wages
prevailing locally for each craft or type of worker at the time the
extra work is done, plus employer payments of payroll taxes and
insurance, health and welfare, pension, vacation, apprenticeship
funds, and other direct costs resulting from Federal, State or local
laws, as well as assessment or benefits required by lawful
collective bargaining agreements. The use of a labor classification
which would increase the extra work cost will not be permitted
unless the contractor establishes the necessity for such additional
costs. Labor costs for equipment operators and helpers shall be
reported only when such costs are not included in the invoice for
equipment rental.
(b) Materials. The cost of materials reported shall be at invoice or
lowest current price at which such materials are locally available in
the quantities involved, plus sales tax, freight and delivery.
Materials cost shall be based upon supplier or manufacturer's
invoice. If invoices or other satisfactory evidence of cost are not
furnished within fifteen (15) Days of delivery, then the Engineer
shall determine the materials cost, at its sole discretion.
(c) Tool and Equipment Use. No payment will be made for the use of
small tools, tools which have a replacement value of $1,000 or less.
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Regardless of ownership, the rates to be used in determining
equipment use costs shall not exceed listed rates prevailing locally
at equipment rental agencies, or distributors, at the time the work is
performed.
(d) Overhead, Profit and Other Charges. The mark -up for overhead
(including supervision) and profit on work added to the Contract
shall be according to the following:
"Net Cost" is defined as consisting of costs of labor, materials and tools
and equipment only excluding overhead and profit. The costs of
applicable insurance and bond premium will be reimbursed to the
Contractor and subcontractors at cost only, without mark -up.
ii. For Work performed by the Contractor's forces the added cost for
overhead and profit shall not exceed fifteen (15 %) percent of the Net Cost
of the Work.
iii. For Work performed by a subcontractor, the added cost for overhead and
profit shall not exceed fifteen (15 %) percent of the Net Cost of the Work to
which the Contractor may add five (5 %) percent of the subcontractor's
Net Cost.
iv. For Work performed by a sub - subcontractor the added cost for overhead
and profit shall not exceed fifteen (15 %) percent of the Net Cost for Work
to which the subcontractor and general contractor may each add an
additional five (5 %) percent of the Net Cost of the lower tier
subcontractor.
V. No additional mark up will be allowed for lower tier subcontractors, and in
no case shall the added cost for overhead and profit payable by City
exceed twenty -five (25 %) percent of the Net Cost as defined herein.
6.9 For added or deducted Work by subcontractors, the Contractor shall furnish to
the City the subcontractor's signed detailed estimate of the cost of labor, material
and equipment, including the subcontractor markup for overhead and profit. The
same requirement shall apply to sub - subcontractors.
6.10 For added or deducted work furnished by a vendor or supplier, the Contractor
shall furnish to the City a detailed estimate or quotation of the cost to the
Contractor, signed by such vendor or supplier.
6.11 Any change in The Work involving both additions and deletions shall indicate a
net total cost, including subcontracts and materials. Allowance for overhead and
profit, as specified herein, shall be applied if the net total cost is an extra;
overhead and profit allowances shall not be applied if the net total cost is a
credit. The estimated cost of deductions shall be based on labor and material
prices on the date the Contract was executed.
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6.12 Contractor shall not reserve a right to assert impact costs, extended job site
costs, extended overhead, constructive acceleration and/or actual acceleration
beyond what is stated in the change order for work. No claims shall be allowed
for impact, extended overhead costs, constructive acceleration and /or actual
acceleration due to a multiplicity of changes and /or clarifications. The Contractor
may not change or modify the City's change order form in an attempt to reserve
additional rights.
6.13 If the City disagrees with the proposal submitted by Contractor, it will notify the
Contractor and the City will provide its opinion of the appropriate price and /or
time extension. If the Contractor agrees with the City, a change order will be
issued by the City. If no agreement can be reached, the City shall have the right
to issue a unilateral change order setting forth its determination of the
reasonable additions or savings in costs and time attributable to the extra or
deleted work. Such determination shall become final and binding if the
Contractor fails to submit a claim in writing to the City within fifteen (15) Days of
the issuance of the unilateral change order, disputing the terms of the unilateral
change order.
6.14 No dispute, disagreement or failure of the parties to reach agreement on the
terms of the change order shall relieve the Contractor from the obligation to
proceed with performance of the work, including extra work, promptly and
expeditiously.
6.15 Any alterations, extensions of time, extra work or any other changes may be
made without securing consent of the Contractor's surety or sureties.
ARTICLE 7. LIQUIDATED DAMAGES. In accordance with Government Code section
53069.85, it is agreed that the Contractor will pay the City the sum of $100.00 for each
and every calendar day of delay beyond the time prescribed in the Contract Documents
for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the
event this is not paid, the Contractor agrees the City may deduct that amount from any
money due or that may become due the Contractor under the Contract. This Article
does not exclude recovery of other damages specified in the Contract Documents.
ARTICLE 8. COMPONENT PARTS OF THE CONTRACT. The "Contract Documents"
include the following:
Notice Inviting Bids
Instructions to Bidders
Contractor's Bid Forms
Contractor's Certificate Regarding Workers' Compensation
Bid Bond
Designation of Subcontractors
Information Required of Bidders
Non - Collusion Declaration form
Iran Contracting Act Certification form
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Public Works Contractor Registration Certification form
Contract
Performance Bond
Payment (Labor and Materials) Bond
General Conditions
Special Provisions (or Special Conditions)
Technical Specifications
California Building Codes as defined in the General Conditions
Addenda
Plans and Contract Drawings
Approved and fully executed change orders
Any other documents contained in or incorporated into the Contract
The Contactor shall complete the Work in strict accordance with all of the Contract
Documents.
All of the Contract Documents are intended to be complementary. Work required by one
of the Contract Documents and not by others shall be done as if required by all. This
Contract shall supersede any prior agreement of the parties.
ARTICLE 9. PROVISIONS REQUIRED BY LAW. Each and every provision of law
required to be included in these Contract Documents shall be deemed to be included in
these Contract Documents. The Contractor shall comply with all requirements of
applicable federal, state and local laws, rules and regulations, including, but not limited
to, the provisions of the California Labor Code and California Public Contract Code
which are applicable to this Project.
ARTICLE 10. INDEMNIFICATION.
10.1 To the fullest extent permitted by law, the Contractor shall defend, indemnify and
hold harmless the City, its respective officials, officers, agents, employees, and
representatives ( "Indemnitees ") from any and all claims, demands, causes of
action, costs, expenses, liabilities, losses, damages (including without limitation
the payment of all consequential damages and attorneys fees and other related
costs and expenses) or injuries, in law or equity, regardless of whether the
allegations are false, fraudulent, or groundless, to tangible property or persons
(including wrongful death, accidents or injuries arising from the alleged failure to
inspect or to maintain traffic controllers or traffic signals, injuries or damages
occurring during the transport of products or in rendering services under the
Contract Documents, such as automobile accidents, trip /slip and fall accidents
and third party assaults) arising out of or resulting from the performance of the
Work or this Contract (including claims made by subcontractors for nonpayment),
to the extent that the acts, omissions or willful misconduct are attributable to the
Contractor or anyone employed directly or indirectly by any of them. Contractor
shall defend, at Contractor's own cost, expense and risk, with legal counsel of
Indemnitee's choosing, any and all such aforesaid suits, actions or other legal
proceedings of every kind that may be brought or instituted against the City, its
respective officials, officers, agents, employees and representatives. To the
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extent of its liability, Contractor shall pay and satisfy any judgment, award or
decree that may be rendered against the City and its respective officials, officers,
agents, employees, and representatives, in any such suit, action or other legal
proceeding. Contractor shall reimburse the City and its respective officials,
officers, agents, employees, and representatives for any and all legal expenses
and costs incurred by each of them in connection therewith or in enforcing the
indemnity herein provided. The only limitations on this provision shall be those
imposed by Civil Code section 2782.
10.2 The duty to defend and to hold harmless, as set forth above, shall include the
duty to defend as established by Section 2778 of the California Civil Code, and
the duty to defend shall arise upon the making of any claim or demand against
the City, its respective officials, officers, agents, employees and representatives,
notwithstanding that no adjudication of the underlying facts has occurred, and
whether or not Contractor has been named in the claim or lawsuit.
10.3 Nothing contained in the preceding sections shall be deemed to obligate the
Contractor to indemnify the City or any of the other Indemnitees, against liability
for damages or any other loss, damage or expense sustained, suffered or
incurred on account of death or bodily injury to active persons or injury to
property caused by the sole negligence or willful misconduct of the City or any of
the other Indemnitees set forth above. Therefore, if it is determined by legal
proceedings or agreement, that the Contractor has no direct contributory or
incidental negligence or other obligation to the City or the other Indemnitees, and
the Contractor is in no way a proper party to a particular claim, then the
Contractor shall not be obligated to hold the City or any Indemnitees harmless
with respect to said claim. However, until such determination is made by legal
proceedings or agreement, or if the Contractor is found to have any degree of
direct or contributory negligence or if it is determined that the Contractor is in any
way or to any degree a proper party to said claim, then the Contractor's
obligations under all of the terms and provisions of the preceding section shall
remain in full force and effect.
10.4 Nothing in this provision, or elsewhere in the Contract Documents, shall be
deemed to relieve the Contractor of its duty to defend the City or any Indemnitee,
as specified under this Article, pending a determination of the respective
liabilities of the City or any Indemnitee, by legal proceeding or agreement.
10.5 In furtherance to, but not in limitation of the indemnity provisions in this Contract,
Contractor hereby expressly and specifically agrees that its obligation to
indemnify, defend and hold harmless as provided in this Contract shall not in any
way be affected or diminished by any statutory or constitutional immunity it
enjoys from suits by its own employees or from limitations of liability or recovery
under workers' compensation laws.
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ARTICLE 11. PREVAILING WAGES. Contractor shall be required to pay the
prevailing rate of wages in accordance with the Labor Code which such rates shall be
made available at the Purchasing Office or may be obtained online at
http / /www.dir.ca.gov /dlsr. and which must be posted at the job site.
IN WITNESS WHEREOF, this Contract has been duly executed by the above -named
parties, on the day and year above written.
CITY OF ARCADIA X -ACT TECHNOLOGY SOLUTIONS, INC.
By: By.
Dominic Lazzare N�IME
City Manager
Title
Attest., Attest: '
By: By:
Ci Irk N "E
c7 t>
Title
Approved as to form:
Stephen P. Deitsch
City Attorney
Attestation of Consultant's signature must be obtained when required by the by -laws, articles of incorporation or other laws, rules or regulations
applicable to Consultant's business entity.
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