Payment by the City under its contracts shall be made in accordance with the procedure established in this section for the several improvements, included herein. Payments upon any improvement or contracts not included in this section shall be made in the manner set forth in the contract between the City and the contractor.
Payments upon any contract for the construction of storm sewers, sanitary sewers, water mains and appurtenances, treatment plants, municipal buildings, sidewalks, pavement, streets and the surface treatment or repair thereof and appurtenances thereto, and any other public improvements shall be made as follows:
(Ord. 1993-38. Passed 6-2-93.)
(a) Schedule of Values. The unit or lump sum price stated in the contract shall be used in determining the amount to be paid and shall constitute full and final compensation for all work. The contractor shall within five days of its receipt of the Notice of Award of the contract provide to the Deputy Service Director/Superintendent of Engineering a schedule of values which accurately represents the value of each major item or component of work to be performed over the time period of the project. The Deputy Service Director/Superintendent of Engineering shall evaluate the Schedule of Values submitted pursuant to this section and shall determine if it accurately reflects the values of the items of work to be performed.
The contractor shall not submit a Schedule of Values which disproportionately reflects the value or timing of work to be performed on the project and the Deputy Service Director/Superintendent of Engineering shall revise any unbalanced Schedule of Values submitted and return it to the contractor. Such revised Schedule of Values may thereafter be utilized on the project to determine the value of the work in place and the amount to be paid to the contractor under this section.
(b) Progress Payments. Progress payments shall be made by the City to the contractor upon approved Applications for payment each month during the contract period. Payments to the contractor for work performed either under a lump sum or unit price contract shall be made at the rate of ninety-two percent (92%) of the amount set forth in the approved Application for Payment.
Where the contract provides for payment to the contractor for material delivered and properly stored on the site of the work, or another location approved by the Deputy Service Director/Superintendent of Engineering, such payment shall be made at the rate of ninety-two percent (92%) of the invoiced costs, not to exceed the amount set forth in the bid and Schedule of Values, provided that the material has been inspected by the Deputy Service Director/Superintendent of Engineering and found to meet the specifications. When payment is made for material under this section, such material shall become the property of the City, but all risk of loss or damage to such material shall remain that of contractor and any such material so lost or damaged shall be replaced at contractors sole expense. Contractor shall be required to protect and maintain and to provide appropriate insurance upon all stored material.
The contractor shall submit to the Deputy Service Director/Superintendent of Engineering within five days of the first day of each month an Application for payment which sets forth in detail the actual measurement of each item performed and materials supplied and the amount due therefor since the preceding estimate. The applications for payment shall also set forth the amount of the original contract, the amount of all change orders approved to date, the amount of the preceding estimate, the amount billed to the contract through the preceding estimate, the amount of retainage withheld through the preceding estimate and the amount remaining to be billed to the contract. The Application shall also include invoices for all material for which the contractor seeks payment, whether installed in the project or included on the Application for Payment as stored material.
The Deputy Service Director/Superintendent of Engineering shall review each Application for payment and based upon his or her investigation of the work either approve, disapprove, or revise the Application. In the event the Application is either disapproved or revised it shall be returned to the contractor for execution or revision. The Contractor shall revise the estimate and resubmit the same for review and approval.
In investigating and approving any Application the Deputy Service Director/Superintendent of Engineering shall consider the amount and quality of all work reflected in the Application. The Deputy Service Director/Superintendent of Engineering may not approve any Application which would result in the payment for work which does not conform to the plans and specifications, has not passed all required testing or is otherwise defective, unless in his or her sole discretion it is in the best interest of the City to do so. In that event, the City shall first issue a deductive change order to the contract which represents the actual value of the defective work so accepted.
Upon the approval of the Application for payment the City shall make payment thereon within thirty days of such approval or, in the City's sole discretion, in the next billing cycle of the City.
The Deputy Service Director/Superintendent of Engineering shall be the sole judge as to the acceptability of the work for inclusion in any payment to the contractor. Such determination by the Deputy Service Director/Superintendent of Engineering shall be final and binding. Any amount paid by the City to a contract for work which was included in previous Applications for Payment and which is subsequently found to be defective or not in conformance with the contract documents shall be deducted from subsequent Applications for Payment. Upon correction of such defective work the amount shall be included in the next Application for Payment or Final Payment.
(c) Retainage and Final Payment. As required by subparagraph (b) of this section the City shall retain from each progress payment to the contractor an amount equal to eight percent (8%) of the value thereof. The City may, in its sole discretion, maintain such amounts in the account designated for the improvement or establish a separate interest bearing account for the deposit of such amounts. The amounts retained by the City on its various contracts may be commingled in one account or deposited in separate accounts. All interest earned upon retainage shall remain the property of and inure to the exclusive benefit of the City.
Upon completion of its work the contractor shall submit to the Deputy Service Director/Superintendent of Engineering its Application for Final Payment. Such Application shall include all items referenced in subparagraph (b) of this section. The Deputy Service Director/Superintendent of Engineering shall determine the status of the work and either approve or disapprove the Application. The Application shall be disapproved in the event the Deputy Service Director/Superintendent of Engineering determines that any item of work required under the contract has not been completed, any item of defective work remains uncorrected, or any drawings, operation and maintenance manuals, maintenance bond or other paperwork have not been provided. The Application for Final Payment shall include a sum equal to one half of the amount of retainage withheld.
Upon the approval of the Application by the Deputy Service Director/Superintendent of Engineering, the City shall within thirty days thereof make Final Payment upon the Application as set forth in subparagraph (b) of this section and issue a Certificate of Final Completion. The making of Final payment shall bring the total amount paid upon the contract to ninety-six percent (96%) of the total contract amount.
The acceptance by contractor of final payment under this subparagraph (c) shall constitute a release by the contractor of any and all claims of whatever nature which the contractor may have against the City, its officers, agents and independent contractors.
(d) Certificate of Final Completion. The Deputy Service Director/Superintendent of Engineering will within thirty (30) days of receipt of the Contractors Application for Final Payment inspect the work, and provided the work is found to be in conformance with the contract documents, shall issue a Certificate of Final Completion. (Ord. 2002-106. Passed 11-6-02.)
(e) Interest. The City shall in no event be responsible for the payment of interest to a contractor as a consequence of a failure to make any progress payment, final payment or the payment of retainage, regardless of the cause for any such delayed payment.
(f) Deposit of Funds. Funds certified by the Director of Budget and Finance for payment of all contracts hereunder shall be deposited in the General Treasury, in a Special Improvement Fund, or in an account of the department responsible for the contract. Interest earned upon funds so deposited in these funds shall be credited to the respective fund, and remain the property of and inure to the exclusive benefit of the City. No contractor shall be entitled to the payment of interest earned upon such funds. (Ord. 1993-38. Passed 6-2-93.)
(g) Guarantee Fund. The contractor shall guarantee all materials and workmanship for a period of one year from the date of the issuance of the Certificate of Final Completion. The City shall withhold from the contractor one half of the amount of retainage for a period of six (6) months after the issuance of the Certificate of Final Completion. Upon the expiration of this six (6) month period the contract shall submit a written request and an invoice for the release of the remaining retainage. Upon the receipt of this request the Deputy Service Director/Superintendent of Engineering shall inspect the work and if he or she finds that the work remains in good and sound condition free from defects the City shall pay the amount so withheld to the contractor. Within thirty (30) days of the receipt of the request for release of retainage such payment shall be approved or the contractor shall be advised of any necessary corrective work.
If in the opinion of the Deputy Service Director/Superintendent of Engineering any work done under the contract or any adjacent property damaged by the work requires repair, replacement, backfilling or other corrective work, the contractor shall furnish all labor and material necessary for the correction thereof at its own expense. Should the contractor fail to perform such work within sixty days of the receipt of written notification by the City, the Deputy Service Director/Superintendent of Engineering may direct that the work be performed by the most expedient means and charge the cost to the amount withheld hereunder, the surety or both.
In the event the cost of such work is less than the balance of funds withheld such excess shall be paid to the contractor. In the event the cost of such work exceeds the amount withheld such deficiency shall be paid by the contractor or its surety.
The release of the guarantee fund shall not constitute a release of the contractor or its surety from liability for work subsequently discovered to be not in conformance with the contract requirements. (Ord. 2002-106. Passed 11-6-02)