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City of Cleveland Codified Ordinances, Chapter #185
PART ONE — ADMINISTRATIVE CODETitle XV — Purchases And ContractsChapter 185 — Construction and Improvement ContractsComplete to June 30, 2007
CROSS REFERENCES
Levy for special purposes of improvements and equipment, Charter § 37-2
City contracts and easements, Charter § 88
Contracts certified, Charter § 106
Authorization of contracts, Charter § 108
Conditions when contracts are void, Charter § 109
Contract interest, Charter § 195
Contracts for utility services without advertising for bids, RC 9.30
Contracts for work on buildings and improvements, RC 153.50 et seq.
Restrictions on contracts, RC 715.68, 731.48
Board of Control approval of contracts, RC 733.22 et seq.
Advertisement for bids for purchases, CO 181.21
Demolition of buildings on lands acquired for public improvements, CO 183.09
Contracts to contain equal employment opportunity clause, CO 187.11
Mandatory provision in labor contracts, CO 661.04
Whenever any work or construction is to be done, or any improvement is to be made for the City which the department, division or office concerned is not equipped or prepared to do or make, the performance of which involves an expenditure of more than ten thousand dollars ($10,000), a contract for such work or construction shall first be authorized and directed by ordinance of Council. When so authorized the Commissioner of Purchases and Supplies shall advertise for bids once a week for two consecutive weeks in the City Record for the doing of such work, and immediately report the bids received, with his recommendations thereon to the director of the department involved, who, in turn, shall transmit such bids to the Board of Control for consideration at its next regular meeting. Any or all bids may be rejected. No contract shall be awarded without the approval of the Board, and then only to the lowest responsible bidder. Contracts so approved shall be reduced to writing and signed on behalf of the City by the director of the department involved. No contract shall be made except if it is reduced to writing and entered into pursuant to these Codified Ordinances. Any such work, construction or improvement which involves an expenditure of less than ten thousand dollars ($10,000) may be made upon open order, given in the same manner as purchase orders of like amount.
(Ord. No. 2725-89. Passed 12-18-89, eff. 12-22-89)
Every advertisement for bids shall specify the place where bids will be received and the day and place when the same will be opened, and shall state that at 12:00 noon on the last day for filing bids made pursuant to advertisement, the Commissioner of Purchases and Supplies will open and read all bids.
(Ord. No. 2929-76. Passed 12-20-76, eff. 12-27-76)
(a) For purposes of this section, "recycled material" shall mean material other than paper, the components of which, in whole or in part, would otherwise have been destined for the waste stream.
(b) All bid specifications for public improvements shall request the bidder to determine whether he or she is able to submit a bid using recycled material. If both of the following apply, the bidder shall submit an alternate bid using the maximum amount of recycled material possible in light of the technology in existence at the time the bid is submitted:
(1) the public improvement which incorporates recycled material is of equal or superior quality to that of a like public improvement which incorporates no recycled material; and
(2) the public improvement may be constructed at a cost which is not more than five percent (5%) greater than the cost of an improvement which is constructed only of non-recycled material. Even if divisions (b)(1) and (b)(2) of this section do not apply, the bidder may, at his or her option, submit an alternate bid using recycled material.
(c) In evaluating bids for a public improvement, the Commissioner of Purchases and Supplies shall give preference to a public improvement which incorporates recycled material, provided that the City official who oversees construction of the improvement determines that the quality of such improvement is equal or superior to that of a like improvement which is bid using only non-recycled material, and provided further that the price bid for the public improvement which incorporates recycled material does not exceed by more than five percent (5%) the lowest price bid for the improvement which is constructed only of non-recycled material. The Commissioner of Purchases and Supplies shall promulgate regulations for the application of the preference. Said regulations shall be published in the City Record and shall include a requirement that the Commissioner take into consideration the total percentage of recycled material used in the improvement.
(Ord. No. 781-A-91. Passed 9-30-91, eff. 10-8-91)
Note: Pursuant to Section 4 of Ord. No. 781-A-91, Section 185.021 shall take effect October 8, 1992.
(a) For purposes of this section "domestic steel" shall mean steel (i) made from materials found in the United States and (ii) fabricated in the United States.
(b) All bid specifications for public improvements shall request the bidder to determine whether he or she is able to submit a bid using domestic steel. If both of the following apply, the bidder shall submit an alternate bid using the maximum amount of domestic steel possible in light of the technology in existence at the time the bid is submitted:
(1) the public improvement which incorporates domestic steel is of equal or superior quality to that of a like public improvement which incorporates imported or foreign-made steel; and
(2) the public improvement may be constructed at a cost which is not more than five percent (5%) greater than the cost of an improvement which is constructed of only imported or foreign-made steel. Even if divisions (b)(1) and (b)(2) of this section do not apply, the bidder may, at his or her option, submit an alternate bid using domestic steel.
(c) In evaluating bids for a public improvement, the Commissioner of Purchases and Supplies shall give preference to a public improvement bid which incorporates domestic steel, provided that the City official who oversees construction of the improvement determines that the quality of such improvement is equal or superior to that of a like improvement which is bid using only imported or foreign-made steel, and provided further that the price bid for the public improvement which incorporates domestic steel does not exceed by more than five percent (5%) the lowest price bid for the improvement which is constructed only of imported or foreign-made steel. The Commissioner of Purchases and Supplies shall promulgate regulations for the application of the preference. Said regulations shall be published in the City Record and shall include a requirement that the Commissioner take into consideration the total percentage of domestic steel used in the improvement.
(Ord. No. 24-01. Passed 3-19-01, eff. 3-26-01)
Every bid must be made on the blank form of bid attached to the invitation to bid, must give the price of each and every item of the work bid on, in figures, must contain the full name of every person, firm or corporation interested in the bid and the address of the person, firm or the president and secretary of the corporation bidding and the name and address of every subcontractor and materialman which the bidder intends to utilize in accomplishment of the contract work. If a corporation, the bidder must give the name of the State in which it is incorporated and the bid must be clearly signed with the full name and address of each person, firm or corporation interested in the bid.
(Ord. No. 792-03. Passed 6-10-03, eff. 6-12-03)
Each bidder shall be required to submit with his bid, an affidavit stating that neither he nor his agents, nor any other party for him has paid to or agreed to pay, directly or indirectly, any person, firm or corporation any money or valuable consideration for assistance in procuring or attempting to procure the contract bid upon, and further agreeing that no such money or reward will be hereafter paid. This affidavit must be on a form provided by the City.
(Ord. No. 2160-84. Passed 10-8-84, eff. 10-15-84)
Each bid shall be accompanied by a bid bond signed by a surety company authorized to do business in Ohio, or by a cashier's check or certified check on a solvent bank, which bond or check shall be in the sum of five percent of the amount of the bid. The bond or check shall be given as security that if the bid is accepted a contract will be entered into and the performance of it properly secured.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
(a) Where a check has been deposited with a bid which through inadvertence of the bidder has not been certified, or the amount thereof is insufficient by an amount less than ten percent of the required amount under the provisions of Section 185.05, the Board of Control, when satisfied that it is in the public interest to do so, may waive such informality or irregularity and award the contract pursuant to such bidding to the lowest responsible bidder notwithstanding such informality or irregularity.
(b) In the event of any such waiver by the Board, the Mayor shall transmit to Council, at the next regular meeting thereafter, a report of such waiver containing the name of each bidder, the amount of each bid, the purpose and amount of the contract awarded and the nature and reason for such waiver.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
(a) The bid bond, certified or cashier's check shall be forfeited and the principal amount of the bid bond shall be paid to the City, or the check shall be surrendered to the City as the agreed amount of liquidated damages in case of failure to enter into contract for the work bid upon. The bid bond or check shall be released or returned to the bidder in case his bid is rejected.
(b) In case his bid is accepted, the bid bond or certified or cashier's check shall be returned after the contract has been signed and the performance bond has been furnished to and approved by the City. The bid bond or certified or cashier's check of the next lowest responsible bidder shall be retained until the lowest responsible bidder has signed and secured the performance of his contract, or if he fails to do so, the bid bond or check shall be further retained until the second lowest responsible bidder has signed and properly secured the contract awarded to him. In default thereof, the bid bond or certified or cashier's check shall be forfeited to the City as liquidated damages.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
No bid will be accepted from, or contract awarded to, any person, firm or corporation that is in arrears or is in default to the City upon any debt or contract, or that is a defaulter as surety or otherwise, upon any obligation to the City, or has failed to perform faithfully any previous contract with the City.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
No bid will be allowed to be withdrawn after it has been deposited with the Commissioner of Purchases and Supplies.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
Bidders shall be required to satisfy themselves as to the existing conditions of the premises where the work is to be done and of the nature of the ground at the site of the proposed work and to pay particular attention to any soil condition that may affect the progress of the work. The City shall make no guarantee, either express or implied, as to ground conditions.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
All bids shall be endorsed with the title or number of the proposed contract, or of the advertisement therefor, and with the name and residence of the bidder, and shall be properly tabulated and summarized immediately after being read. The tabulation and summary shall become a public record in the office of the Commissioner of Purchases and Supplies.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
The City, through the Board of Control, shall reserve the right to reject any or all bids, and any part of any bid, and also the right to waive any informalities in the bid. In awarding a contract, the City shall reserve the right to consider all elements entering into the question of determining the responsibility of the bidder. Any bid which is incomplete, conditional, obscure or which contains additions not called for or irregularities of any kind, may be cause for rejection of such bid.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
Unless further time is required for analysis of the bids or investigation of the responsibility of any bidder and in the absence of a limitation upon the time of acceptance set forth in the bid, the Board of Control shall make an award or reject all bids not later than the second regular meeting of the Board following the opening of bids. Any extension of time beyond the date fixed by the successful bidder or the fourth regular meeting of the Board, whichever event shall first occur, shall be subject to agreement between the bidder and the Board.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
Except for contracts awarded under the Small Business Rotation Program established under Section 187.032, or for contracts anticipated to be under $500,000 and of a type where MBEs or FBEs are determined to be underutilized at a statistically significant level, when the Commissioner of Purchases and Supplies, with the prior approval of both the Director of Finance and the Director of the Office of Equal Opportunity, based on standards promulgated by the directors to protect the City's interests, has determined that to reduce or waive a bond requirement will enhance contract competition by making City contract awards equitably available to all qualified contractors and will benefit the City's interests, the contractor shall be required to furnish a bond with good and sufficient sureties approved by the Director of Law, in an amount equal to at least fifty percent of the contract price, which bond shall be substantially in the following form:
FORM A
BOND
Know all men by these presents, that we, the undersigned ————————————— as principal, and ————————————— as surety, are hereby held and firmly bound unto the City of Cleveland in the penal sum of —————————— dollars ($—————), for the payment of which well and truly to be made, we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors and assigns by these presents.
The conditions of this obligation are such that whereas the above-named principal did on the ————— day of ————— A.D. 20———, enter into the contract hereto attached with the City of Cleveland, which said contract is made a part of this bond the same as if fully set forth herein:
Now, if the principal shall well and truly execute all and singular the stipulations by it to be executed and shall fully perform the work therein specified and do and perform all and singular the terms, conditions and requirements of the plans, specifications and contract, and shall indemnify and save harmless the City of Cleveland from all suits and actions of every name and description brought against the City, its directors or any officer of the City, for, or on account of any injury or damage to person or property arising from or growing out of the construction of the work in said contract specified to be done, or the doing of any of the work therein described, and shall indemnify and save harmless the City of Cleveland from any and all suits and expense over and above the expense included in the contract price, for royalties or infringements on patents that may be involved in the construction of the appliances contracted for or any of the parts thereof or in the use of said appliances or any of the parts thereof hereafter and if the principal shall defend, at its proper cost and expense, any and all suits and actions of every kind whatsoever that may be brought against the City of Cleveland by reason of the use of said appliances or any of the parts thereof, and further shall indemnify and save harmless the City of Cleveland from all liens, charges, claims, demands, loss, costs and damages of every kind and nature whatsoever and shall pay all lawful claims of subcontractors, materialmen and laborers for labor performed and for materials furnished in the carrying forward, performing or completing of said contract, then this obligation shall be void, otherwise shall be and remain in full force and virtue in law; we hereby agreeing and consenting that this undertaking shall be for the benefit of any laborer or materialman having a just claim as aforesaid as well as for the City of Cleveland; and further, that the parties to the foregoing contract may, from time to time and as often as they see fit, make any additions to, omissions from, or modifications of the work, plans or specifications and the surety herein stipulates and agrees that no modifications, omissions, or additions, in or to the terms of the contract or in or to the plans or specifications therefor shall in any wise affect the obligations of said surety on its bond; it being expressly understood and agreed that the liability of the surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated.
Witness our signature this ————— day of ————— A.D. 20———.
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Principal.
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Surety.
(Ord. No. 793-03. Passed 6-10-03, eff. 7-20-03)
The contractor's bond will not be released until all of the provisions of the contract or of any contract phase for which the contractor has furnished a separate bond have been fulfilled.
(Ord. No. 794-03. Passed 6-10-03, eff. 6-12-03)
A contract shall be deemed executed when signed by the parties thereto, certified by the Director of Finance as required by Charter Section 106, secured by the required performance bond, and when approved by the Director of Law as required by Charter Section 83.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
The original contract entered into and executed in accordance with these Codified Ordinances shall be filed in the office of the Commissioner of Accounts. One certified copy shall be filed in the office or department affected by the contract, and one certified copy shall be filed with the contractor. A brief notice of the execution of each contract shall be published in the next issue of the City Record thereafter, citing the pages of the City Record on which request for bids and the award of such contract were published and indicating the nature of the contract, the name of the contractor and the amount involved.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
Every contract for a public improvement shall contain the conditions set forth in this chapter, all provisions required by the Charter to be set forth therein and such other provisions, terms and conditions as the Director of Law, the director of the department concerned or the Commissioner of Purchases and Supplies shall deem necessary or appropriate.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
The following shall constitute the contract documents and shall be deemed the contract for the public improvement:
(a) The ordinance or ordinances authorizing the making of the public improvement;
(b) The invitation to bid, general conditions, supplemental general conditions and detail specifications;
(c) The contract drawings;
(d) All addenda issued by the City prior to receipt of bids;
(e) The affidavit of noncollusion;
(f) The bid;
(g) The resolution of the Board of Control awarding the contract;
(h) The agreement;
(i) All required bonds and policies of insurance;
(j) All provisions required by law, Charter or ordinance to be inserted in the contract, whether actually inserted or not.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
As used in this chapter, the following words and expressions or pronouns used in their stead, unless a different meaning is clear from the context, shall have the following meanings:
(a) "Addendum" or "addenda" means the additional contract requirements prepared by the director and issued in writing, by means of drawings, or both, by the Commissioner of Purchases and Supplies prior to the receipt of bids.
(b) "City" means the City of Cleveland, Ohio.
(c) "Contract" or "contract documents" means each of the various parts of the contract referred to in Section 185.19, both as a whole and severally, and includes subsidiary agreements, if any.
(d) "Contractor" means the corporation, firm or individual, or any combination thereof, and its, their or his successors, personal representatives, executors, administrators and assigns, and any person, firm or corporation who or which shall at any time be substituted therefor under this contract, and includes in their respective capacities, the president, manager or other officer or agent for the time being, representing or locally managing the work of any corporation contracting herein.
(e) "Contract drawings" means those identified as such in the contract documents, and includes those issued in connection with any addendum, or issued in connection with any proper subsidiary agreement, and also includes any other detail or explanatory drawings issued during the progress of the work which are consistent with the contract documents, true developments thereof or reasonably inferable therefrom.
(f) "Specifications" means all of the directions, requirements and standards of performance applying to the work as hereinafter detailed and designated under specifications.
(g) "Contract work" or "work" means the furnishing of all labor, materials, tools, equipment, incidentals and any other thing necessary or required for the full performance of the contract by the contractor, including all such required or necessary as called for in any proper subsidiary agreement.
(h) "Director" means the director of the department for which the improvement is being made.
(i) "Final acceptance" means final acceptance of the work by the director, as evidenced by his signature upon his certificate of completion and acceptance filed in the office of the Commissioner of Accounts, a copy of which shall be sent to the contractor. Such acceptance shall be deemed to have taken place as of the date so stated in such certificate.
(j) "Law" or "laws" means the Constitution of the State, the Charter, a statute of the United States or of the State, the Codified Ordinances and any Municipal ordinance, rule or regulation having the force of law which is applicable to this contract.
(k) "Materialman" means any person, firm or corporation other than employees of the contractor, who or which contracts with the contractor or any subcontractor to fabricate or deliver, or who actually fabricates or delivers, materials, plant or equipment to be incorporated in the work.
(l) "Subcontractor" means anyone, other than the contractor and his employees, who performs work, other than or in addition to the furnishing of materials, plant or equipment, at or about the construction site, directly or indirectly for or on behalf of the contractor, and whether or not in privity of contract with the contractor, but shall not include any person who furnished merely his own personal labor or his own personal services.
(m) "Workman", "laborer" or "workingman" means any employee of the contractor or of a subcontractor, who performs personal labor or personal services at the construction site.
(n) "Directed," "required," "approved" and words of like import whenever they refer to the work or its performance, and "directed," "required," "permitted," "ordered," "designated," "established," "prescribed," and words of like import used in the specifications, the contract or upon the drawings, imply the direction, requirement, permission, order, designation or prescription of the director. "Approved," "acceptable," "satisfactory" and words of like import mean approved by or acceptable or satisfactory to the director.
(o) "Site" means the area upon or in which the contractor's operations are carried on, and such other areas adjacent thereto as may be designated as such by the director.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
The contractor shall be required to guarantee that he can and will complete the work on or before the time fixed in his bid, or any extension thereof granted by the City. For the reason that the damage and loss to the City which will result from the failure of the contractor to complete the work at the time fixed will be most difficult or impossible of accurate assessment, the damages to the City for such delay and failure on the part of the contractor shall be liquidated in the amount fixed by the City, for each calendar day by which the contractor shall fail to complete the work or any part thereof, in accordance with the provisions of the contract. Such liquidated damages shall not be considered as a penalty. The City will deduct and retain out of any money due or to become due under the contract the amount of the liquidated damages and, in case those amounts are less than the amount of the liquidated damages, the contractor shall be liable for the payment of the difference upon demand of the City.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
(a) If the contractor is delayed in the completion of the work by any act or neglect of the City, or by any other contractor employed by the City, or by changes ordered in the work, or by strikes, lockouts, fire, unusual delay by common carriers, unavoidable casualties or any cause beyond the contractor's control, including orders, limitations or restrictions of any governmental agency having jurisdiction over the subject matter of the contract, or by delay authorized by the City, or by any cause which the director shall decide to justify the delay, then, for all such delays and suspensions, the contractor shall be allowed one calendar day extension beyond the time fixed for completion of the work for each and every calendar day of such delay so caused in the completion of the work, the same to be ascertained by the director.
(b) No such extension shall be made for any one or more of such delays unless within ten days after the beginning of such delay a written request for additional time shall be filed with the director. In case of a continuing cause of delay, only one request will be necessary.
(c) No claims for damages or any claim other than for an extension of time as herein provided shall be made or asserted against the City by reason of delays hereinbefore mentioned.
(d) When by reason of any of the causes stated herein an extension of time has been allowed the contractor for the completion of his work, he shall not be entitled to a bonus for completion prior to the date so extended, anything in the contract documents to the contrary notwithstanding.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
(a) The City will not insure the work under construction, nor against claims for injury to person or property arising during the prosecution of such work.
(b) The contractor will be held responsible for all damage to the work under construction, whether from fire, water, high winds or other causes until final completion and acceptance, even though partial payments have been made under the contract. He will be held answerable for all damages that may occur to persons, property, animals or vehicles from want of proper shoring, bracing, lighting, watching, boarding or enclosing and for any accident arising from defective scaffolding or apparatus, or from any negligence on the part of himself or his employees.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
The contractor shall be required to provide and install such construction plants and use such methods and appliances for the performance of all the operations connected with the work to be done under the contract as will secure the safety of the work and those working on it a satisfactory quality of the work and a rate of progress which will insure the completion of the work within the time specified. If at any time before the commencement or during the progress of the work, or any part of its, such methods and appliances appear to be unsafe, inefficient or inadequate for securing the safety of the workmen, the quality of the work or the rate of progress required, the City may order the contractor to increase safety measures or to improve their character, and the contractor shall comply with such orders. The failure of the City to make such a demand shall not release the contractor from his obligation to secure the safe conduct and the quality of the work, and the rate of progress required and the contractor alone shall be responsible for the safety, efficiency and adequacy of his plant, appliances and methods.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
The contractor shall be required to provide proper facilities, take all necessary precautions and assume the entire cost for protecting the work against adverse weather conditions and for handling all storm and flood water, sewage, seepage, ice or snow that may be encountered during the performance of the contract. The manner of providing for such contingencies and for carrying on the work in freezing weather shall meet with the approval of the City. The contractor shall be required to provide the necessary watchmen and sufficient warning lights and barricades at his own expense and to take such other precautions as are necessary to protect life and property.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
(a) The contractor shall take out and maintain during the life of the contract such public liability and property damage insurance, wherein the City is named as an additional insured, as shall protect himself, the City and any subcontractor performing work covered by this contract from claims for damages for personal injury, including accidental death, as well as from claims for property damages which may arise from operations under this contract, whether such operations be by himself or by any subcontractor or by anyone directly or indirectly employed by either of them. An exact copy of such policy shall be deposited with the City before the commencement of any work under the contract. The amounts of such insurance shall be as follows:
Public liability insurance in an amount not less than one hundred thousand dollars ($100,000) for injuries, including accidental death to any one person, and, subject to the same limit for each person, not less than three hundred thousand dollars ($300,000) on account of one accident involving injury to more than one person, and property damage insurance in an amount not less than twenty-five thousand dollars ($25,000).
(b) The following special hazards shall be covered during the life of the contract by riders to the policy above required, or by separate policies of insurance in amounts as follows:
(1) Public liability insurance to cover each automobile, truck or other vehicle used in the performance of the contract in an amount not less than one hundred thousand dollars ($100,000) on account of injury or death of one person and not less than three hundred thousand dollars ($300,000) on account of injury or death of two or more persons.
(2) Property damage liability insurance to cover each automobile, truck or other vehicle used in the performance of the contract in an amount not less than twenty-five thousand dollars ($25,000) in any accident.
(3) Public liability and property damage insurance to cover the use of explosives used in the performance of the contract, in the same limits as set forth in the preceding subsections.
(c) The policy shall contain the following special provisions: "The company agrees that ten (10) days prior to cancellation or reduction of the insurance afforded by this policy, with respect to the contract involved, written notice will be mailed to the City of Cleveland."
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
(a) Inspectors as designated by the City shall be authorized to inspect all work done and materials furnished. Such inspection may extend to all or any part of the work, and to the preparation or manufacture of the materials to be used. In case of any dispute arising between the contractor and the inspector as to materials furnished or the manner of performing the work, the inspector shall have the authority to reject materials or suspend the work until the question at issue can be referred to and decided by the City. The inspector shall not be authorized to stop the use of, alter, enlarge, relax or release any requirements of these specifications, nor to approve or accept any portion of the work or to issue instructions contrary to the plans and specifications. The inspector shall in no case act as foreman or perform other duties for the contractor or interfere with the management of the work by the latter. Any advice which the inspector may give the contractor shall in nowise be construed as binding the City in any way or releasing the contractor from the fulfillment of the terms of the contract.
(b) The contractor shall not be entitled to any claim for loss of time, damages or anticipated profit due to any time lost from suspension of work and from referral of the questions at issue to the director or his representative.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
The contractor shall be required to comply with all applicable laws of the Federal government, State, ordinances of the City or other municipality in which the work is being done and all applicable regulations and any authorized regulations, and shall be responsible for securing at his own expense any and all licenses, permits and certificates of inspection required by law or by the contract documents.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
It shall be understood and agreed that the contractor shall execute his work in such a manner and in such order as will not interfere with work in progress and will permit the City to perform other work or to enter into other contracts for work and materials to be constructed or placed in, on or about the work, with the least interference possible and with complete cooperation whenever it is desirable to prosecute such other work, either simultaneously with the work under his contract or otherwise, and that the director shall decide all questions of priority of contracts.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
The contractor shall be required to pay all royalties and license fees and shall hold and save the City and its officers, agents, servants and employees harmless from liability of any nature or kind, including cost and expenses, for or on account of any patented or unpatented invention, process, article or appliance manufactured or used in the performance of the contract, including its use by the City, unless otherwise specifically stipulated in the contract documents. In this respect the contractor shall defend all suits or claims for infringement of any patent or license rights.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
The contractor shall be required at all times during the term of the contract to subscribe to and comply with the workmen's compensation laws of the State and pay such premiums as may be required thereunder and to save the City harmless from any and all liability arising from or under the act. He shall also furnish at the time of delivery of the contract and at such other times as may be requested, a copy of the official certificate or receipts showing the payments hereinbefore referred to.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
The contractor shall be and remain an independent contractor with respect to all services performed hereunder and shall agree to and hereby accept full and exclusive liability for the payment of any and all contributions or taxes for social security, unemployment insurance or old age retirement benefits, pensions or annuities now or hereafter imposed under any State or Federal law which are measured by the wages, salaries, or other remuneration paid to persons employed by the contractor on work performed under the terms of the contract. The contractor shall further agree to obey all lawful rules and regulations and to meet all lawful requirements which are now or hereafter may be issued or promulgated under respective laws by any duly authorized State or Federal officials. The Contractor shall also agree to indemnify and save harmless the City from any such contributions, taxes or liability therefor.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
Each laborer, workman or mechanic employed by the contractor for the work specified, or by the subcontractor, or by other persons upon such work, shall be paid the prevailing rates of wages as determined by the Department of Industrial Relations, Division of Building and Factory Inspection of the State.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
The contractor shall well, truly and promptly pay or satisfy the just and equitable claims of all persons who have performed labor or furnished material for the contractor in the execution of the contract, including those who have previously filed attested account of such claims with the Director of Finance, and all bills, costs or claims of whatever kind which might in law or equity become a lien upon the work or against the fund from which the same is to be paid or a charge against the City. In case the attested accounts, claims, bills or costs are not paid or adjusted to the satisfaction of the Director, then the City may proceed as follows:
The City may retain out of any moneys at any time due the contractor a sum sufficient to pay all persons who have done work or furnished labor or materials for the work contracted for, and who have filed an attested account of such claim with the Director within four months from the performance of labor or the delivery of materials, stating that any balance for work or materials is still due and unpaid, which amount may be retained by the City until satisfactory evidence is furnished to the Director that the balance has been fully paid. If the evidence is not furnished before the next estimate becoming due to the contractor under the contract, the Director may pay the balance to the person claiming it and charge such payment to the contractor as payment on the contract, unless the contractor has previously filed with the Director written notice that such claim is in dispute. In the event of such dispute, the City will retain the amount until the claim has been adjusted or the money paid into court on proceedings in the nature of an interpleader.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
(a) If a subcontractor or materialman submits an application or request for payment or an invoice for materials to the contractor in sufficient time to allow the contractor to include the application, request, or invoice in its own pay request submitted to the City, the contractor, in compliance with and subject to all provisions of Section 4113.61 of the Revised Code, within ten calendar days after receipt of payment from the City under a public improvement contract, shall pay to the:
(1) Subcontractor, an amount that is equal to the percentage of completion of the subcontractor's contract allowed by the City for the amount of labor or work performed;
(2) Materialman, an amount that is equal to all or that portion of the invoice for materials which represents the materials furnished by the materialman.
(b) The contractor may reduce the amount paid by any retainage provision contained In the contract, invoice, or purchase order between the contractor and the subcontractor or materialman, and may withhold amounts that may be necessary to resolve disputed liens or claims involving the work or labor performed or material furnished by the subcontractor or materialman.
(c) The contractor shall require each subcontractor and materialman to pay each of its lower tier subcontractors or lower tier materialmen within ten calendar days after receipt of payment from the contractor, under the same terms and conditions and in the same manner as this section requires the contractor to pay a subcontractor or materialman.
(d) The contractor shall include a prompt payment requirement notification in each subcontract or contract for materials under the contract and shall require each subcontractor and materialman to comply with the applicable provisions of this section and Section 4113.61 of the Revised Code.
(Ord. No. 792-03. Passed 6-10-03, eff. 6-12-03)
The contractor shall not assign, transfer, convey or otherwise dispose of the contract, or his right to execute it, or his right, title or interest in it or to it or any part thereof, or assign, by power of attorney or otherwise, any of the moneys due or to become due under the contract, except by consent of the Board of Control. The giving of any such consent to a particular assignment shall not dispense with the necessity of such consent to any further or other assignments. Such an assignment, transfer or conveyance shall not be valid until filed in the office of the Commissioner of Accounts.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
(a) The contractor shall not sublet nor shall any subcontractor commence performance of any part of the work included or any materialman deliver or fabricate materials, plant or equipment to be incorporated in the contract without the previous written consent of the Board of Control. Subletting, if permitted, shall not relieve the contractor or his surety of any of his or its obligations under the contract.
(b) Failure by the contractor to obtain consent of the Board of Control for any subcontractor or materialman shall be a breach of the contract for which the contractor may incur a penalty.
(c) The contractor shall be and remain solely responsible to the City for the acts or faults of his subcontractor and of such subcontractor's officers, agents and employees, each of whom shall, for this purpose, be deemed to be the agent or employee of the contractor to the extent of his subcontract. The contractor shall promptly, on request of the City file a confirmed copy of the subcontract with prices deleted, as a condition precedent to the approval of a subcontractor. The contractor and subcontractor shall jointly and severally agree that subcontracting does not obligate the City to pay, or to see to the payment of any sums to any subcontractor.
(Ord. No. 792-03. Passed 6-10-03, eff. 6-12-03)
The delivery of any material, equipment or the performance of any labor which does not in all respects conform to contract requirements, will be rejected and the contractor shall be notified promptly by the director of such rejection and the reason therefor, which notice shall be confirmed in writing. If the contractor fails to effect immediate replacement of such rejected materials, equipment and labor with material, equipment and labor meeting the requirements of the order and of the contract, the City will purchase in the open market, material, equipment and hire labor of the character required under the order up to the amount rejected and the contractor and his surety shall be liable to the City for any excess cost and expense occasioned the City thereby. The director shall have the right to suspend the whole or any part of the work to be done, hereunder, when the contractor is not doing the work in accordance with the provisions of the contract. No extension of time for completion of the contract work or claim for or damages will be allowed by reason of such suspension.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
The director shall have the right to annul the contract upon the failure of the contractor to comply within three days after receipt of written notice to proceed with the performance of any work unreasonably delayed as to indicate failure of completion within the time specified or to replace any work material or equipment not meeting the contract.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
The director of the department for which the improvement is made shall determine finally, the satisfactory quality of the work, material and equipment furnished under the contract or any separately-bonded contract phase.
(Ord. No. 794-03. Passed 6-10-03, eff. 6-12-03)
The contractor for the work called for in the contract documents in consideration of the price bid and the payments received or to be received, shall be required to guarantee that all work done and all material used in the project under contract are in all respects first-class, of the proper kind and quality and that the work has been done and is being done in accordance with the requirements of the contract documents and that the improvement will remain in good condition for and during the entire period of guarantee, which shall begin upon the date of final acceptance by the director in writing, of the construction work, and continue for a period of twelve months thereafter or as otherwise provided in the supplemental general conditions.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
(a) The contractor shall be required to make current requests for payment in writing, not more than one each month, and submit them to the director who executed the contract on behalf of the City ("director") for approval. The request shall be dated the last working day of the month and be submitted to the director by the fifth day of the following month. At the same time, a copy of the request shall be mailed by the contractor to the resident engineer or architect. The request for payment shall cover the materials in place complete, and the amount of work performed in accordance with the contract during the preceding payment period and the value thereof. At the discretion of the director, allowances may be made for nonperishable materials which are to be incorporated into the work, when delivered and properly stored upon the site. Upon approval of the contractor's request for payment, the director will make estimates in writing, one each payment period of the materials in place complete and the amount of work performed, all in accordance with the contract. Upon approval by the director, the contractor shall be paid the amount of each such estimate less a deduction of five percent (5%) which shall be retained until final acceptance of all work covered by any separate phase of the contract work or of all work covered by the contract, and less all prior payments.
(b) Upon written certification by the director of final acceptance of each separate phase of the contract work or of all contract work, as determined by the director, the City shall pay the contractor the whole amount of the money then due the contractor under that phase or all phases of the contract, as applicable, except such sums which have already been paid and except such sum as may have been expended by the City or may be due the City or properly deductible, under the provisions of the contract, and less a deduction of five percent (5%) to be retained for a further period of forty-five days.
(c) Forty-five days after the final acceptance of each separate phase of the contract work or of all contract work, as determined by the director, the contractor shall be paid the sums retained less proper deductions and less two percent (2%) of the total amount of that phase or of all phases of the contract, as applicable, which shall be retained for the balance of the guarantee period for work under that phase or all contract work, as applicable.
(d) The payment of the moneys as provided in this section shall constitute a full and complete discharge of all the duties and obligations of the City under the contract.
(Ord. No. 794-03. Passed 6-10-03, eff. 6-12-03)
Neither acceptance of nor payments for the work, or any part of the work, nor any extension of time, nor any possession taken by the City shall operate as a waiver of any portion of the contract, nor shall a waiver of any breach of the contract be held to be a waiver of any other or subsequent breach.
(Ord. No. 1236-60. Passed 6-20-60, eff. 6-22-60)
(a) The Mayor or any director of a department is hereby authorized to employ by written contract such professional or expert services as the Board of Control determines are necessary to supplement the regularly employed staff of the City in order to facilitate the abatement of asbestos or similar hazardous materials found in City-owned properties. Such expert services include surveying, testing, consulting, preparation of specifications or guidelines for abatement, and supervision of the abatement. Each such contract shall be prepared by the Director of Law and certified by the Director of Finance.
The selection of the persons or firms to furnish such expert services shall be made by the Board of Control upon the nomination of the Mayor or the director of the affected department from a list of qualified, available persons, compiled by the Mayor or the director after a full and complete canvass.
(b) The cost of the professional services authorized herein may be paid from general obligation or revenue bonds, provided that such services are included within the purpose for which such bonds are sold. The cost of such services shall not exceed ten thousand dollars ($10,000).
(Ord. No. 79-87. Passed 5-11-87, eff. 5-13-87)
The director of a department shall notify the Council whenever it shall be necessary to increase the certified contract amount of a public improvement contract by more than five percent (5%). Such notice shall be made within three (3) business days of a determination by the director to request authorization to increase the amount of such contract.
(Ord. No. 2258-94. Passed 6-12-95, eff. 6-21-95)
That notwithstanding any Codified Ordinance to the contrary, when in the prosecution of any work or improvement under contract it becomes necessary, in the opinion of the director of the appropriate department, to make alterations or modifications in such contracts wherein the alteration or modification requires the payment of ten thousand dollars ($10,000.00) or more by the City of Cleveland and/or wherein the alteration or modification affects a right of the City to receive funds or property having a value of ten thousand dollars ($10,000.00) or more, such alterations or modifications shall be made only when authorized by the Council upon the written recommendations of such director, countersigned by the Mayor. No such alterations shall be valid unless both the price to be paid for the work or material, or both, under the altered or modified contract, shall have been agreed upon in writing and signed by the contractor and such director prior to such authorization by Council. For purposes of this Section, "work or improvement under contract" means all purchase, professional service, grant and loan agreements executed by the City of Cleveland, excluding public improvement agreements.
(Ord. No. 2068-99. Passed 4-17-00, eff. 4-26-00 without the signature of the Mayor)
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