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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)
The payment of moneys based on the estimates mentioned in Section 115.02 shall not be construed as an acceptance by the City of any such work so estimated.
The acceptance of or payment for any work performed or materials furnished under any such contract, or any possession by the City, shall not be construed as a waiver by the City of any rights under the contract or of any right or power therein reserved to the City, nor shall any waiver or any breach of any part or of the whole of any such contract be construed as a waiver of any other part thereof or of a subsequent breach thereof. (Ord. 1987-96. Passed 12-16-87.)
Any and all payments due or to become due the contractor and all rights of the contractor to demand and receive such payments shall be subject to all provisions of law relating to attested accounts of subcontractors, equipment men, material men, laborers or mechanics. The contractor shall pay or satisfy the just and equitable claims of all persons who have performed labor or furnished materials or equipment for the contractor in the execution of each such contract, the just and equitable claims of all persons who have previously filed an attested account of any such claims with the proper official of the City and all bills, costs or claims of any kind which might become a liability, lien or charge against the City. In the event that attested accounts are filed with the City, the City may retain out of the moneys due or to become due the contractor a sum sufficient to pay all such attested account claimants. If such accounts are not paid or adjusted to the satisfaction of the City, the City may retain all payments pursuant to the provisions of this chapter and pursuant to the law of attested accounts provided for by Ohio R.C. 1311.26 to 1311.37. (Ord. 1987-96. Passed 12-16-87.)
The final estimate shall include all work of every description done and all materials furnished by the contractor under the contract. All questions as to estimates, measurements or the determination of the quantity or quality of work shall be left to the discretion of the Deputy Service Director/Superintendent of Engineering. Labor or material furnished outside the provisions of such contract shall not be paid for unless such labor or material has been ordered by the Deputy Service Director/Superintendent of Engineering in writing by change order and approved by the contractor. (Ord. 2002-106. Passed 11-06-02)
If the contractor fails to comply with the terms of the specifications or contract or fails to comply with such orders or directions of the Deputy Service Director/Superintendent of Engineering as are provided for in or pursuant to the contract, the City reserves the right to withhold any estimates or portions thereof, that may be due until such terms, specifications, written change or directions are complied with to the satisfaction of the Deputy Service Director/Superintendent of Engineering. (Ord. 2002-106. Passed 11-06-02.)
(a) Each person or entity bidding for a contract with the City for the construction, alteration, repair or reconstruction of any public improvement is required to file with its bid a bid bond in the amount of ten percent of the amount of the bid. Such bid bond shall be separate from any performance or payment bond tendered pursuant to subparagraphs (c) through (f) of this section;
(b) The bid bond provided pursuant to subparagraph (A) of this section shall be subject to payment to the City as follows:
(1) The return of the bid bond shall be conditioned upon the bidder entering into a proper contract in accordance with the bid, plans and specifications after the acceptance of the bid and notice of award of the contract.
If for any reason other than as authorized by section 9.31 of the Revised Code, the bidder fails to enter into the contract, the City may enter into a contract with the next lowest responsible and responsive bidder and the bidder and its surety shall be liable to the City for the difference between the amount of bidder's bid and the amount of the bid of the bidder being awarded the contract, or for a penal sum not to exceed ten percent (10%) of the amount of the bid, whichever is less.
(c) Within five (5) calendar days of the receipt of the Notice of Award of a contract the successful bidder shall provide to the City a Performance bond in the amount of the contract to indemnify the City against all damage suffered by failure to perform the contract according to its provision and in accordance with the plans, details, damages, and costs associated with the default or termination of the contractor or any corrective work not undertaken by the contractor.
(d) Within five (5) calendar days of the receipt of the Notice of Award of a contract the successful bidder shall provide to the City a Payment bond in the amount of the contract to pay all lawful claims of subcontractors, materialmen, and laborers for labor performed and material furnished in carrying forward, performing, or completing the contract and such undertaking shall be for the benefit of any subcontractor, material person or laborer having a just claim, as well as for the City. (Ord. 1993-38. Passed 6-2-93.)
(e) In lieu of separate bid, performance and payment bonds, the Deputy Service Director/Superintendent of Engineering may accept one bond satisfying each of these separate requirements, provided, however, that a separate penal sum must apply to the performance and payment bond provisions of such bond. (Ord. 2002-106. Passed 11-06-02)
(f) The contract shall submit with its Application for Final Payment pursuant to Section 115.02(c) a Maintenance bond in the amount of ten percent (10%) of the contract amount. Such bond shall be conditioned to guarantee all materials and workmanship furnished pursuant to the contract for a period of one year from the date referenced in the Certificate of Final Completion.
(g) The release of the Maintenance bond upon the expiration of one year shall not constitute or be deemed to be a release or waiver of any other claim or right which the City may have with respect to work performed by the contractor which is defective or does not conform to the contract documents. (Ord. 1993-38. Passed 6-2-93)