109MEASUREMENT AND PAYMENT

92

made by the State will result in the deletion of the payment from the next estimate following the expiration of said 30-day period.

the monthly estimate for such partial payments.

will be rejected even though previous payment may have been made. The Contractor shall be solely responsible for furnishing and incorporating acceptable materials into the work and for any loss or damage regardless of the cause, for any material on which partial payment is made.

included in partial payments for stockpiled materials if properly documented. Such charges may be included in the materials invoice or handled as a separate invoice, whichever is appropriate. The estimate, less any payments previously made, will be certified by the Director for payment provided progress and quality of work is satisfactory and in conformity with Subarticle 108.04(b). No monthly payment will be required to be made when the amount due on the project is less than $2,500. A statement of any sum due the State or County for equipment, labor, or supplies furnished under the provisions of these Specifications will be furnished along with the estimate and the amount of same will be deducted from the estimate before payment is made by the State. The payment of any monthly estimate for any portion of the work as provided in the Specifications shall in no way affect the obligation of the Contractor to complete the work in accordance with the contract

109.08Payments to Subcontractors

Retainage shall not be withheld from payments owed to subcontractors or lower tier subcontractors. The Prime Contractor shall make payment to all subcontractors, for the portion of the work satisfactorily performed by the subcontractors, within 14 calendar days (including Saturdays, Sundays, and holidays) of the Contractor's receipt of a partial payment from the ALDOT. The Prime Contractor shall submit to the Project Manager a notarized certification of payment signed by an authorized company representative, for each estimate period. This certification shall read "Company's Name paid all subcontractors active on the project for Estimate Period No. within 14 calendar days of the receipt of the partial payment covering said estimate period. All subcontractors were paid in full based on the said estimate and any subcontractor invoices received with the following exceptions: list any exceptions and provide an explanation." The certification shall be submitted within sixty calendar days of the close of the estimate period for which it applies. Failure to furnish the certification in a timely manner may result in the withholding of further monthly payments or other punitive action until the delinquent certifications have been submitted. Should an ALDOT audit reveal that the Contractor did not make payments as stated in the certification, ALDOT will take punitive action against the Contractor. This action may include disqualification from bidding for a minimum period of six months.

109.09Payment for Work

Payment for work will be made by the State by warrants drawn against State funds that are legally available for such work. All monies payable under the contract, or any part thereof, will be paid to the Contractor in accordance with the provisions of these specifications, and no assignment or order executed by the Contractor directing payment of any portion or all of such funds to any other person or persons will be recognized by the State unless such assignment or order specifies the amount to be so paid and the purposes for which the assignment or order is given. Such assignment or order shall have attached thereto, by endorsement or otherwise, the consent of the surety. No such assignment or order will be binding on the State.

109.10Disputed Claims for Extra Compensation

Claims shall be handled as provided in Section 110, Claims.

109.11Time Limit for Final Adjustment

It is understood that the Director will not be bound to consider applications for correction of estimates and payments, including assessed liquidated damages, after the Contractor has signed his final estimate, or after 30 days from the date when the final estimate is submitted to the Contractor for his MEASUREMENT AND PAYMENT 93

signature or approval, unless in the latter case the Contractor submits written request within the 30-day period for adjustment of estimates and payment, including assessed liquidated damages.

109.12Final Payment

Within 60 calendar days after the final inspection as outlined in Article 105.15, the Engineer will prepare the list of final quantities for the various items of work performed. The Engineer will submit by certified letter, return receipt requested, the list of final quantities to the Contractor for his review and concurrence. The Contractor will have 45 calendar days from the date of receipt to submit either written concurrence of the final quantities or a written statement of disagreement. The written statement of disagreement shall contain a list, item by item, of the quantities that the Contractor does not agree with and his reasons for disagreement on each item's final quantity. Failure by the Contractor to furnish the written statement within 45 calendar days shall be prima facie evidence that the Contractor considers the submitted final quantities to be satisfactory and waives any further consideration of the final quantities. Upon notice from the Contractor of a dispute in quantities, the Engineer will promptly attempt to resolve the differences. If the Engineer is notable to reach an agreement with the Contractor the matter will be referred to the Director for resolution. The Director may refer the dispute to the Claims Committee for a recommendation before making a final decision. Issues of disputed quantities will not be referred to the Claims Appeal Board. If the Contractor requests the Department to make a resurvey which will require additional field and/or office work, the Director may grant the request with the understanding that the Contractor will be paid the final survey and/or computed quantities whether they be more or less than the original final quantities. If a resurvey is made at the Contractor's request, the Contractor and the Department shall share equally the additional cost of the resurvey and the Contractor's portion of this cost will be deducted from the final estimate.

All claims for extra compensation will be handled in accordance with Section 110, Claims.

Prior to submission of the final estimate voucher to the Contractor for his signing, the Contractor shall furnish the following documentation, as applicable:

State Department of Revenue and the appropriate County and/or City authority. This statement certifies that the non-resident contractor had paid all taxes due and payable to the State of Alabama or any political subdivision thereof. See Section 39-2-12 of the Alabama Code.

and all approved sub contractual obligations associated with the construction of the project have been paid or will be paid within 5 days after final payment. The affidavit shall be on a standard form furnished by the Department. Failure by the Contractor to furnish any of the above documentation will be cause for the Engineer to declare the Contractor to be in default as per Article 108.12.

Upon resolution of the final quantities, all claims, and receipt of the above listed documentation, and written notice of final acceptance, the final estimate voucher will be prepared taking into consideration all prior partial payments. The Engineer will submit by certified letter, return receipt requested, the final estimate voucher to the Contractor for his signing. The Contractor shall have 30 calendar days after receipt of the voucher to sign and return the same for processing for final payment. Should the Contractor fail to sign and return the voucher within the 30 days, he will be declared in default in accordance with Paragraph 5 of Article 108.12. Upon receipt of the signed final estimate voucher or default action taken per Paragraph 5 of Article

108.12, the Department will issue a warrant in the amount due the Contractor. The final warrant will

be issued to the Surety in cases where the Contractor is placed in default under Article 108.12 and the contract is placed in the hands of the Surety. By agreement it is hereby stipulated that the Contractor CLAIMS 94

and the Surety are forever barred and estopped from any recovery of claims whatsoever against the Department under the terms of the contract. CLAIMS

110.01General

When filing a claim, the Contractor shall follow the procedures set forth in this Section. Any claims by a Subcontractor must be submitted to the Contractor. The Contractor may then submit the Subcontractor’s claim on their behalf following the same procedures, or otherwise choose to accept full responsibility for the Subcontractor’s claim and any associated costs, delays, or impacts to the project.

110.02Notice of Intent

In any case where the Contractor deems that extra compensation is due him for additional cost not clearly covered in his contract and not ordered by the Engineer as extra work as defined herein, the Contractor shall notify the Construction Bureau in writing, with copy to the Project Manager, of his intention to make claim for such extra compensation. The written notice of intent to file a claim shall be furnished to the Engineer prior to the time the contested work is started. Oral notification by the Contractor and confirmed in writing by the Contractor within three calendar days, will be accepted as complying with this requirement. Electronic submission of said notification will be accepted. The written notice of intent to file a claim shall set forth the reasons the Contractor believes additional compensation will be due, the nature of cost involved and insofar as possible the total amount of the claim. The Contractor hereby agrees to waive any claim for additional compensation if notification, as provided in the foregoing, is not furnished or the Engineer is not provided facilities by the Contractor for keeping account of actual costs. Such notice by the Contractor, and the fact that the Engineer has kept account of the cost as aforesaid, is not evidence of the validity of the claim. A separate determination of the validity of the claim will be made by the ALDOT. If the Contractor decides to rescind the notice of intent and voluntarily waive any claim for additional compensation, he shall notify the Construction Bureau in writing, with copy to the Project Manager. The Contractor hereby agrees to rescind the notice of intent and waive any claim for additional compensation if he accepts any alternate resolution outside the claims process, in whole or in part, such as a time extension or supplemental agreement. A copy of said alternate resolution should be sent to the Construction Bureau to formally close the claim file.

110.03Record Keeping

After giving the ALDOT a notice of intent to file a claim, the Contractor shall keep daily records of all costs incurred for affected operations. These daily records shall identify each operation affected, quantities of any additional work performed, the specific locations where work is affected, and the potential effect to the project’s schedule such as days of delay or changes in production rates. Additionally, these records shall include details of all labor, material, and equipment applicable to affected operations. On Monday, or the first work day, of each week following the date of the notice of intent to file a claim, the Contractor shall provide the ALDOT’s Project Manager with the daily records for the preceding week. The ALDOT’s Project Manager will also keep separate records for the purpose of verifying the Contractor’s records. If the Contractor's records indicate costs greater than those kept by the ALDOT, the ALDOT will notify the Contractor of any discrepancies. The Contractor shall have the opportunity to provide additional documentation regarding said discrepancies Refusal or failure by the Contractor to present his records shall constitute a waiver by the Contractor of his claim. To protect the integrity of the independent records maintained by ALDOT for comparison with those submitted by the Contractor, ALDOT records will not be made available to the Contractor until after ALDOT’S receipt of the Contractor’s complete records documenting the claim. ALDOT will retain possession of the records and provide copying facilities with the Contractor reimbursing the ALDOT for the expense of the copying. No amendment to the claim shall be made following receipt of the ALDOT’s records. CLAIMS 95

110.04Claims Process

After the work has been completed on the disputed item(s) of work and/or the period of delay or impact has concluded, the Project Manager will affirm in writing to the Construction Bureau, with copy to the Contractor, the end date of the claim period. The Contractor shall have 90 calendar days from the claim end date to submit his claim documentation to the Construction Bureau. Any claim not submitted within this 90 calendar day period is waived. The Contractor shall submit either an electronic copy of the claim to the Construction Bureau, with copy to the Project Manager, or seven hard copies (one of which shall be unbound for duplication purposes) to the Construction Bureau and two hard copies to the Project Manager. The claim shall contain the required daily records listed in Article 110.03 plus any applicable supporting documentation in accordance with Subarticle 109.04(b). Once the claim is received the Area will submit to the Construction Bureau a copy of their records and recommendation regarding the Contractor’s claim. The review of the claim will be made by the Construction Bureau and a written response or request for additional information will be sent to the Contractor within 90 calendar days. If the Contractor does not agree with the claim review, he may send a written request to make a presentation to the Claims Committee by certified mail to the Construction Bureau within 30 calendar days from the date of the ALDOT’s claim review. Failure to make the request within the required time period shall constitute the Contractor’s acceptance of the claim review and waiver of the right to a review by the Claims Committee.

The Claims Committee will be composed of five ALDOT employees whose position is that of an assistant bureau chief or higher, and who were not involved in the design or construction of the project. For Federal Aid projects, the FHWA will be invited to send an observer. The ALDOT will notify the Contractor in writing of the date and location of the presentation. The Contractor may make request to the Construction Bureau to reschedule the presentation. Said request must be received at least one week prior to the scheduled date. If the claim was submitted on behalf of a Subcontractor, both the Contractor and the Subcontractor must have a representative in attendance at the presentation. Issues not specifically presented in the claim package acted upon by the Construction Bureau and the Area are not subject to consideration by the Claims Committee. Following the presentation, the Claims Committee will provide a written recommendation to the Director. The Claims Committee's recommendation may be accepted, modified or denied by the Director. If accepted, the Director's decision shall be final, non-appealable, and not subject to judicial or other review except as provided in these Specifications. If the Contractor does not accept the decision of the Director, he may send a written request to make a presentation to the Claims Appeal Board. This request shall be made in accordance with Item 110.04(c)2. below. Failure to make the request within the required time period shall constitute the Contractor’s acceptance of the Director’s decision and waiver of the right to a review by the Claims Appeal Board.

The Claims Appeal Board is a standing committee created to receive a presentation regarding a claim. The Claims Appeal Board will hear claims for additional monetary compensation which may include a request for a time extension; however, stand-alone time extension requests will not be considered by the Board. The Board consists of three primary members who are normally appointed for two-year terms. A three-member pool of alternates will be selected from which to provide a substitute for the primary member in the event that the primary member is unable to serve at a particular time or in the event that the Director declares the position vacant due to unfitness, death, illness, incapacity, conflict of interest or any other circumstance which would make service on the Board by that member impossible, difficult or unobjective. The three primary members of the Board and three alternates are appointed in the following manner. The Director appoints the primary and one alternate for one position. The Alabama Road Builders' Association appoints the primary and one alternate for a second position. The Director and the Alabama Road Builders' Association jointly appoint the primary and one alternate for a third position. The jointly appointed primary member will be the Board Chairman. The jointly appointed alternate will be the alternate Board Chairman. At least one Board Member must be a licensed Professional Engineer in the State of Alabama. In the event that an alternate member is elevated to permanently replace a primary member of the Board, then a new alternate shall be appointed in the same manner as was the departing CLAIMS 96

alternate. Such will also be the case if an alternate position is declared vacant by the Director due to death, illness, incompetence or other reasons. In the event that both the primary member and the alternate member are unable to serve or must recuse themselves due to conflict of interest, etc., on a particular claim(s) hearing, a new member of the Board will be appointed in the same manner as the primary member to sit for that particular hearing. The ALDOT will notify the Contractor in writing of the date of the presentation and the names of the Board members. The Contractor will have ten calendar days from receipt of the letter to file with the Director, by certified mail, an objection as to the composition of the Board which specifically details the nature of the objection. The Director shall have final authority in determining the composition of the Board. Each Board member will be paid $120 per hour for actual time spent reviewing the plans, specifications, and claim; attending the presentation and for preparing the report to the Director. This payment will cover all compensation and expenses.

The Contractor may initiate a request for a Board presentation by submission of a written notice by certified mail to the Director within 30 calendar days from the date of the Director’s decision on the recommendation of the Claims Committee. Failure to make the request within the required time period shall constitute waiver of the claim by the Contractor. The Board presentation will convene at the mutual convenience of the Board, the Department, and the Contractor. Issues not specifically presented in the original claims package are waived and are not subject to consideration by the Board. The Contractor shall not contact or have any discussions with members of the Claims Appeal Board while the claim is pending except during the formal presentation. The FHWA will be invited to send an observer for Federal Aid projects. The Contractor shall pay for 50 percent of the expenses of a Board presentation. The written recommendation of the Board will be sent to the Director following the presentation. The Claims Appeal Board's recommendation may be accepted, modified, or denied by the Director. After receiving the recommendation of the Claims Appeal Board, the Director has 45 calendar days to report his decision to the Contractor. The Director's decision in the resolution of any and all claims shall be final, non-appealable and not subject to judicial or other review. The decision of the Director is binding upon all parties including, but not limited to, contractors, subcontractors, and third-party beneficiaries. After the final ruling by the Director on a claim, a supplemental agreement shall be processed to make payment for any amount deemed payable by the Director.

110.05Claim Compensation

The liability of the Department for claims will be limited to the following specifically identified compensable items which shall be evaluated per Article 109.04:  Additional job site labor expenses, plus workmen’s compensation insurance  Additional costs for materials  Additional job-site overhead  Equipment costs  Professional services  Bond costs  Subcontractor costs as determined by, and limited to, those items identified as payable under Subitems a, b, c, d, e, and f above  Administrative allowance, to the Prime Contractor for processing a claim on behalf of a subcontractor  Gross receipts tax  Public liability and property damage insurance  Interest that accrues after 30 calendar days from the date of the Governor’s signature on the supplemental agreement that makes payment for a claim.

The Department will have no liability for the following specifically identified non- compensable items: