109MEASUREMENT AND PAYMENT

Measurement and Payment Art. 109.01 59

108.11Termination of the Contractor’s Responsibility. Whenever the

improvements called for by the contract has been completely performed on the part of the Contractor and all parts of the work have been approved by the Engineer and accepted by the Department according to the contract, and the final estimate paid, the Contractor’s obligations shall then be considered fulfilled, except those obligations which by their nature extend beyond the completion of work including but not limited to Articles 107.26, 107.27, 107.33, and 107.34.

108.12Termination for Public Convenience. The Department may, by

written order, terminate the contract or any portion thereof after determining that for reasons beyond either Department or Contractor control, the Contractor is prevented from proceeding with or completing the work as originally contracted for, and that termination would, therefore, be in the public interest. Such reasons for termination may include, but need not be necessarily limited to, Executive Orders of the President relating to prosecution of war or national defense, national emergency which creates a serious shortage of materials, orders from duly constituted authorities relating to energy conservation, and restraining orders or injunctions obtained by third-party citizen action resulting from national or local environmental protection laws or where the issuance of such order or injunction is primarily caused by acts or omissions of persons or agencies other than the Contractor.

When contracts, or any portion thereof, are definitely terminated or cancelled, and the Contractor released before all items of work included in his/her contract have been completed, payment will be made for the actual number of units of items of work completed at contract unit prices, or as specified in Article 109.06 for partially completed items, and no claims for loss of anticipated profits will be considered. Reimbursement for organization of the work and moving equipment to and from the job will be considered where the volume of the work completed is too small to compensate the Contractor for these expenses under the contract unit prices, the intent being that an equitable settlement will be made with the Contractor.

Acceptable materials, obtained by the Contractor for the work, that have been inspected, tested and accepted by the Engineer, and that are not incorporated in the work may, at the option of the Engineer, be purchased from the Contractor at actual costs as shown by receipted bills and actual cost records at such points of delivery as may be designated by the Engineer.

Termination of a contract, as stated above, will not relieve the Contractor or his/her surety of the responsibility of replacing defective work as required by the contract.

109.01Measurement of Quantities. Completed work, which is to be

measured for payment, will be measured by the Engineer according to the United States standard measures. The units of measure shall be English (metric) and shall correspond to the units in the contract. Metric units are generally “hard” converted and Appendix B of this book lists conversion factors for the exact English equivalents.

Art. 109.01 Measurement and Payment 60 All measurements for length will be made linearly unless otherwise specified. Longitudinal measurements for areas of base courses, surface courses, pavement, and shoulders will be made along the actual surface of the roadway. For transverse measurements for areas of base courses, surface courses, pavements, and shoulders, the dimensions used in calculating the pay areas shall be the exact horizontal dimensions shown on the plans or the dimensions ordered in writing by the Engineer. No deduction will be made for fixtures in the roadway having an area of 9 sq ft (0.84 sq m) or less.

All measurements for weight shall be from scales meeting the requirements of The Weights and Measures Act of the State of Illinois. The Contractor shall provide accurate weights of materials delivered to the contract for incorporation into the work, whether temporary or permanent, for which the basis of payment is by weight. These weights shall be documented on delivery tickets which shall identify the source of the material, type of material, the date and time the material was loaded, the contract number, the net weight, the tare weight when applicable, and the identification of the transporting vehicle.

The Department will conduct random, independent vehicle weight checks for material sources.

Should the vehicle weight check for a source result in the net weight of material on the vehicle exceeding the net weight of material shown on the delivery ticket by 0.50 percent (0.70 percent for aggregates) or more, the Engineer will document the independent vehicle weight check and immediately furnish a copy of the results to the Contractor. No adjustment in pay quantity will be made.

Should the vehicle weight check for a source result in the net weight of material shown on the delivery ticket exceeding the net weight of material on the vehicle by 0.50 percent (0.70 percent for aggregates) or more, the Engineer will document the independent vehicle weight check and immediately furnish a copy of the results to the Contractor. The Engineer will adjust the net weight shown on the delivery ticket to the checked delivered net weight as determined by the independent vehicle weight check.

The Engineer will also adjust the method of measurement for subsequent deliveries from the source based on the independent weight check. The net weight of all materials delivered to all contracts from this source, for which the basis of payment is by weight, will be adjusted by applying a correction factor “A” as determined by the following formula:

       B C B0 . 1 A ; Where 0 . 1 A and       C C B 0.50% (0.70% for aggregates)

Where A = Adjustment factor B = Net weight shown on delivery ticket C = Net weight determined from independent weight check

The adjustment factor will be applied as follows:

Adjusted Net Weight = A x Delivery Ticket Net Weight

Measurement and Payment Art. 109.03 61

The adjustment factor will be imposed until the cause of the deficient weight is identified and corrected by the Contractor to the satisfaction of the Engineer. If the cause of the deficient weight is not identified and corrected within seven calendar days, the source shall cease delivery of all materials for which the basis of payment is by weight.

Should the Contractor elect to challenge the results of the independent weight check, the Engineer will continue to document the weight of material for which the adjustment factor would be applied. However, provided the Contractor furnishes the Engineer with written documentation that the source scale has been calibrated within seven calendar days after the date of the independent weight check, adjustments in the weight of material paid for will not be applied unless the scale calibration demonstrates that the source scale was not within the specified Department of Agriculture tolerance.

At the Contractor’s option, the vehicle may be weighed on a second independent Department of Agriculture certified scale to verify the accuracy of the scale used for the independent weight check.

109.02Scope of Payment. The Contractor shall receive and accept the

compensation as herein provided, in full payment for furnishing all materials, labor, tools, and equipment; for performing all work contemplated and embraced under the contract; for all loss or damage arising out of the nature of the work and from the action of the elements; for any unforeseen difficulties or obstructions which may arise or be encountered during the prosecution of the work until its final acceptance by the Department; for all risks of every description connected with the prosecution of the work; for all expenses incurred by or in consequence of suspension or discontinuance of such prosecution of the work as herein specified; for any infringement of patents, trademarks or copyrights; and for completing the work in an acceptable manner according to the plans and Specifications.

The payment of any current estimate prior to final acceptance of the work by the Department shall in no way constitute an acknowledgement of the acceptance of the work, nor in any way prejudice or affect the obligation of the Contractor, at his/her own expense, to repair, correct, renew, or replace any defects or imperfections in the construction or in the strength or quality of the materials used in or about the construction of the work under contract and its appurtenances, nor any damage due or attributable to such defects, which defects, imperfections or damage shall have been discovered on or before the final inspection and acceptance of the work. The Engineer shall be the sole judge of such defects, imperfections or damage, and the Contractor shall be liable to the Department for failure to correct the same as provided herein.

109.03Increased or Decreased Quantities. Whenever the quantity of any

pay item as given in the proposal shall be increased or decreased, payment shall be made on the basis of the actual quantity completed at the unit price for such pay item named in the proposal, except as otherwise provided in Article 104.02, or in the detailed Specifications for each class of work. Should any pay items contained in the proposal be found unnecessary for the proper completion of the work, the Engineer may, upon written order to the Contractor, eliminate such pay items from the contract, and such action shall in no way invalidate the contract. When a Contractor is notified

Art. 109.04 Measurement and Payment 62 of the elimination of pay items, the Contractor will be reimbursed for actual work done and all costs incurred, including mobilization of materials prior to said notification.

109.04Payment for Extra Work. Extra work which results from any of the

changes as specified in Article 104.02 shall not be started until authorization from the Engineer is received, which authorization shall state the items of work to be performed and the method of payment for each item. Work performed without such order will not be paid for.

Extra work will be paid for at either the contract price, a lump sum price or agreed unit prices, or on a force account basis.

either a lump sum price or agreed unit prices, the lump sum or unit prices shall be agreed upon by the Contractor and the Engineer.

the basis for the force account shaII be as follows.

operations, the Contractor shall receive the actual normal rate of wage paid for each and every hour that said labor and foremen are actually engaged in such work.

The Contractor shall receive the actual costs paid to, or in behalf of, workers by reason of subsistence and travel allowances, health and welfare benefits, pension fund benefits or other benefits, when such amounts are required by collective bargaining agreement or other employment contract generally applicable to the classes of labor employed on the work.

An amount equal to 35 percent of the sum of the above items will also be paid the Contractor.

workmen’s compensation insurance premiums, unemployment insurance contributions, and social security taxes on the force account work, the Contractor shall receive the actual cost, to which ten percent will be added. The Contractor shall furnish satisfactory evidence of the rate or rates paid for such bond, insurance, and tax.

Contractor shall receive the actual cost of such materials delivered on the work, including transportation charges paid by the Contractor (exclusive of machinery rentals as hereinafter set forth), to which cost 15 percent will be added.

Engineer. The equipment shall be specifically described, be of suitable size and capacity for the work to be performed, and be in good operating condition. For such equipment, the Contractor will be paid as follows.

Measurement and Payment Art. 109.04 63

paid for by the hour using the applicable FHWA hourly rate from the “Equipment Watch Rental Rate Blue Book” (Blue Book) in effect when the force account work begins. The FHWA hourly rate is calculated as follows.

FHWA hourly rate = (monthly rate/176) x (model year adj.) x (Illinois adj.) + EOC

Where: EOC = Estimated Operating Costs per hour (from the Blue Book)

The time allowed will be the actual time the equipment is operating on the extra work. For the time required to move the equipment to and from the site of the extra work and any authorized idle

0.5 x (FHWA hourly rate - EOC).

All time allowed shall fall within the working hours authorized for the extra work.

The rates above include the cost of fuel, oil, lubrication, supplies, small tools, necessary attachments, repairs, overhaul and maintenance of any kind, depreciation, storage, overhead, profits, insurance, and all incidentals. The rates do not include labor.

The Contractor shall submit to the Engineer sufficient information for each piece of equipment and its attachments to enable the Engineer to determine the proper equipment category. If a rate is not established in the Blue Book for a particular piece of equipment, the Contractor shall obtain a custom rate through Equipment Watch. If a rate is not available through Equipment Watch, the Engineer will establish a rate for that piece of equipment that is consistent with its cost and use in the industry.

rent equipment to perform extra work, the rental and transportation costs of the equipment plus five percent for overhead will be paid. In no case shall the rental rates exceed those of established distributors or equipment rental agencies.

All prices shall be agreed to in writing before the equipment is used.

disposal fees at a clean construction and demolition debris facility, an uncontaminated soil fill operation or a landfill, the Contractor shall receive, as administrative costs, an amount equal to five percent of the first $10,000 and one percent of any amount over $10,000 of the total approved costs of such fees.

Art. 109.04 Measurement and Payment 64

superintendence, the use of small tools, or other costs for which no specific allowance is herein provided.

account basis until the Contractor has furnished the Engineer with itemized statements of the cost of such force account work. Statements shall be accompanied and supported by invoices for all materials used and transportation charges. However, if materials used on the force account work are not specifically purchased for such work but are taken from the Contractor’s stock, then in lieu of the invoices, the Contractor shall furnish an affidavit certifying that such materials were taken from his/her stock, that the quantity claimed was actually used, and that the price and transportation claimed represent the actual cost to the Contractor.

Itemized statements at the cost of force account work shall be detailed as follows.

extension for each laborer and foreman. Payrolls shall be submitted to substantiate actual wages paid, if so requested by the Engineer.

extension for each unit of machinery and equipment.

insurance premiums, unemployment insurance contributions, and social security tax.

performed by an approved subcontractor, the Contractor shall receive, as administrative costs, an amount equal to five percent of the total approved costs of such work with the minimum payment being $100.

Engineer not later than 60 days after receipt of the Central Bureau of Construction form “Extra Work Daily Report”. If the statement is not received within the specified time frame, all demands for payment for the extra work are waived and the Department is released from any and all such demands. It is the responsibility of the Contractor to ensure that all statements are received within the specified time regardless of the manner or method of delivery.

109.05Expenses Incurred by the Department. Upon written request of the

Engineer, the Contractor shall pay the bills which are the responsibility of the Department. The Contractor shall receive as administrative costs an amount equal to

Measurement and Payment Art. 109.07 65 five percent of the first $10,000 and one percent of any amount over $10,000 of the total actual amount paid per bill with the minimum payment being $100.

109.06Payment for Items Omitted When Partially Completed. Should the

Department cancel or alter any portion of the contract which results in the elimination or noncompletion of any portions of the work partially completed, the Contractor will be allowed a fair and equitable amount covering all items of work incurred prior to the date of cancellation, alteration, or suspension of such work.

The Contractor shall be allowed a profit percentage on the materials used and the construction work actually performed at the rate specified in Article 109.04, but no allowance will be made for any change in anticipated profits. Acceptable materials ordered by the Contractor or delivered on the work prior to the date of its cancellation, alteration or suspension by the Engineer will be purchased from the Contractor by the Department at actual cost and shall thereupon become the property of the Department; or at the option of the Engineer, the unused acceptable material shall remain the property of the Contractor, and the Contractor will be paid the actual cost including freight, unloading, and hauling costs less the actual salvage value.

109.07Partial Payments. Partial payments will be made as follows

written estimate of the quantity of work performed in accordance with the contract, and the value thereof at the contract unit prices. The amount of the estimate approved as due for payment will be vouchered by the Department and presented to the State Comptroller for payment. No amount less than $1,000.00 will be approved for payment other than the final payment.

The failure to perform any requirement, obligation, or term of the contract by the Contractor shall be reason for withholding any progress payments until the Department determines that compliance has been achieved. Furthermore, progress payments may be reduced by liens filed pursuant to Section 23(c) of the Mechanics Lien Act, 770 ILCS 60/23(c).

made for materials, prior to their use in the work, when satisfactory evidence is presented by the Contractor. Satisfactory evidence includes justification for the allowance (to expedite the work, meet project schedules, regional or national material shortages, etc.), documentation of material and transportation costs, and evidence that such material is properly stored on the project or at a secure location acceptable and accessible to the Department.

Material allowances will be considered only for nonperishable materials when the cost, including transportation, exceeds $10,000 and such materials are not expected to be utilized within 60 days of the request for the allowance. For contracts valued under $500,000, the minimum $10,000 requirement may be met by combining the principal (material) product of no more than two contract items. An exception to this two item limitation may be considered for any contract regardless of value for items in which material (products) are similar, except for type and/or size.

Art. 109.08 Measurement and Payment 66 Material allowances shall not exceed the value of the contract items in which used and shall not include the cost of installation or related markups. Amounts paid by the Department for material allowances will be deducted from estimates due the Contractor as the material is used. Proof of payment for materials and transportation shall be furnished to the Department within 60 days of payment of the allowances or the amounts will be reclaimed by the Department.

109.08Acceptance and Final Payment. Whenever the improvement

provided for by the contract has been completely performed on the part of the Contractor, and all parts of the work have been approved by the Engineer, a final estimate showing the value of the work will be prepared by the Engineer as soon as the necessary measurements and computations can be made, all prior estimates upon which payments have been made being approximate only and subject to correction in the final payment.

Final acceptance occurs by signature on the final estimate and the date of this signature constitutes the acceptance date. Final acceptance shall not constitute acceptance of any unauthorized or defective work or material. The Department shall not be barred from requiring the removal, replacement, repair, or disposal of any unauthorized or defective work or material or from recovering damages from any such work or material.

As soon as possible after final inspection, the final quantities will be sent to the Contractor by certified mail. The Contractor shall respond within 21 days of receipt by either signing and thus accepting the final quantities or by disagreeing in writing, citing the pay items involved with documentation and justification of such disagreement. Failure to respond within the 21 days will be considered as acceptance of final quantities and the Department will proceed with final payment.

The amount of this estimate, less any sums that have been deducted or retained under the Provisions of the contract, will be paid to the Contractor as soon as practicable after the final approval of the work, provided there exists no liens filed against the public funds according to the law.

When the State of Illinois is the awarding authority, unless the Contractor files a claim for adjudication by the Court of Claims according to Article 109.09, the final payment shall constitute a release and waiver of any and all rights and privileges under the terms of the contract, and shall relieve the Department from any and all claims or liabilities for anything done or furnished relative to the work or for any act or neglect on the part of the Department relating to or connected with the contract.

When the county or municipality is the awarding authority, the final payment shall constitute a release and waiver of any and all rights and privileges under the terms of the contract, and shall relieve the Department from any and all claims or liabilities for anything done or furnished relative to the work or for any act or neglect on the part of the Department relating to or connected with the contract.

109.09Contract Claims. If the Contractor claims that additional payment is

due under the terms of the contract or for any other reason arising out of the performance of the contract and the Department has not agreed, during the ordinary course of contract administration, that payment is due, the Contractor desiring to

Measurement and Payment Art. 109.09 67 pursue additional compensation shall file a claim according to the requirements and procedures specified herein. If written notifications are not given, or if the Department is not afforded reasonable access by the Contractor to complete records of actual costs or additional time, or if a claim is not filed according to the procedures and within the time specified herein, then the claim is waived and the Department is released from any and all demands and claims. The fact that the Contractor has provided a proper notification, provided a properly filed claim, or provided the Department access to records of actual cost, shall not in any way be construed as proving or substantiating the validity of the claim. If the claim, after consideration by the Department, is found to have merit, the Department will make an equitable adjustment either in the amount of costs to be paid according to the Basis of Payment specified herein or in the time required for the work or both. If the Department finds the claim to be without merit, no adjustment will be made.

The Contractor may present a claim made by a subcontractor founded upon the terms of the contract or the actions and orders of the Engineer without being first required to make payment to the subcontractor provided: the Contractor makes written certification that the subcontractor is entitled to additional compensation; that the subcontractor will be paid in the event of a favorable resolution of the claim; and that the subcontract, releases, and waivers executed by the subcontractor do not bar payment to the subcontractor. The written certification may authorize the subcontractor to present the subcontractor claim directly to the Department. If such authorization is given, the Contractor need not participate in the verbal presentation of the claim. In any event, the submission shall include a copy of the subcontract, and any releases or waivers signed by the subcontractor in favor of the Contractor. The Contractor’s interest in the subcontractor’s claim shall not be assigned or otherwise disposed of, except as specified in Article 108.01.

and in sufficient detail to enable the Department to ascertain the basis and amount of the claim. As a minimum, the following information must accompany each claim submitted.

and time, if any, providing all necessary dates, locations, and items of work affected by the claim.

knowledgeable about the claim.

statement of the reasons why such provisions support the claim.

leaves to the Engineer’s discretion or as to which the contract provides that the Engineer’s decision is final, the Contractor shall set out in detail all facts supporting his/her position relating to the decision of the Engineer.

communications that support the claim.

Art. 109.09 Measurement and Payment 68

documents previously furnished to the State by the Contractor, that support the claim (manuals which are standard to the industry, used by the Contractor, may be included by reference).

is sought, the specific reasons the Contractor believes a time extension should be granted, and the specific provisions of Section 108 under which it is sought.

breakdown of that amount into direct labor, direct materials, direct equipment, direct jobsite overhead, and direct offsite overhead.

Under penalty of law for perjury or falsification, the undersigned,

_________________, ___________________, of _________________,

hereby certifies that the claim for compensation and time, if any, made herein for work on this contract is a true statement, fully documented and supported under the contract between the parties.

Dated __________________________/S/_______________________

Subscribed and sworn before me this _____ day of__________________

___________________________ Notary Public

My Commission Expires ________________________________________

complete records of the costs and additional time incurred for any claim. The Contractor shall permit the Department to have access to those records and any other records as may be required by the Department to determine the facts or contentions involved in the claim. The Contractor shall retain those records according to Article 109.10.

following the filing of the claim. The audit may be performed by employees of the State or by an auditor under contract with the State. The audit may begin at any time during the life of the contract, or on 20 calendar days notice to the Contractor or its agents if an audit is to be commenced more than 60 calendar days after the final payment date of the contract. The Contractor, subcontractors, or agents shall provide adequate facilities acceptable to the Department, for the audit during normal business hours. Failure of the Contractor or its agents to maintain and retain sufficient

Measurement and Payment Art. 109.09 69 records to allow the auditors to verify all or any portion of the claim or to permit the auditor access to the books and records of the Contractor, subcontractors, or agents shall constitute a waiver of the claim and may bar any recovery of all or any portion thereunder.

The records subject to retention and audit are all books and records including but not limited to the following documents.

contract involved.

the Contractor’s internal purposes in establishing the actual costs of owning and operating equipment, all such other source documents.

to each and every claim together with all documents which support the amount of damages as to each claim.

for items of the claim including but not limited to labor, benefits and insurance, materials equipment, subcontractors all documents which establish the time periods individuals involved, the hours for the individuals and the rates of the individuals.

Art. 109.09 Measurement and Payment 70

Department within 21 days of receipt of the final quantities. All claims submitted according to this Article shall be filed not later than six months after the Department provides final quantities to the Contractor according to Article 109.08. The six months shall run from the date indicated on the final quantities transmittal. The requirement of a general administrative claims cutoff time provided herein shall not constitute a waiver of any notification time requirements stated elsewhere in these specifications or the special provisions.

review.

Level I Engineer of Construction Level II Chief Engineer/Director of Highways or Designee

of the claim and supporting documentation shall be submitted simultaneously to the District and the Engineer of Construction. The Engineer of Construction, in consultation with the District, will consider all information submitted with the claim and render a decision on the claim within 90 days after receipt by the Engineer of Construction. Claims not conforming to this Article will be returned without consideration. The Engineer of Construction may schedule a claim presentation meeting if in the Engineer of Construction’s judgment such a meeting would aid in resolution of the claim, otherwise a decision will be made based on the claim documentation submitted. If a Level I decision is not rendered within 90 days of receipt of the claim, or if the Contractor disputes the decision, an appeal to Level II may be made by the Contractor.

of Construction within 45 days after the date of the Level I decision. Review of the claim at Level II shall be conducted as a full evaluation of the claim. A claim presentation meeting may be scheduled if the Chief Engineer/Director of Highways determines that such a meeting would aid in resolution of the claim, otherwise a decision will be made based on the claim documentation submitted. A Level II final decision will be rendered within 90 days of receipt of the written request for appeal.

Full compliance by the Contractor with the provisions specified in this Article is a contractual condition precedent to the Contractor’s right to seek relief in the Court of Claims. The Director’s written decision shall be the final administrative action of the Department. Unless the Contractor files a claim for adjudication by the Court of Claims within 60 days after the date of the written decision, the failure to file shall constitute a release and waiver of the claim.

adjustment in time required for the work will be made according to Section 108. Any adjustment in the costs to be paid will be made for direct

Measurement and Payment Art. 109.11 71 labor, direct materials, direct equipment, direct jobsite overhead, direct offsite overhead, and other direct costs allowed by the resolution. Adjustments in costs will not be made for interest charges, loss of anticipated profit, undocumented loss of efficiency, prorata home office overhead, unabsorbed overhead and lost opportunity, preparation of claim expenses and other consequential indirect costs regardless of method of calculation.

The above Basis of Payment is an essential element of the contract and the claim cost recovery of the Contractor shall be so limited.

109.10Contractor Record Retention. All books and records required to be

maintained by the Contractor and subcontractor shall be maintained as provided for elsewhere in the contract. The Contractor and subcontractor shall cooperate fully with any audit and provide full access to all relevant materials. Failure by the Contractor or subcontractor to maintain the books, records and supporting documents required by this Article shall establish a presumption in favor of the State for the recovery of any funds paid by the State under the contract for which adequate books and records are not available. The Contractor and subcontractor shall include the requirements of this Article in all subcontracts.

109.11Payments to Subcontractors. Federal regulations found at

49 CFR §26.29 mandate the Department to establish a contract clause to require Contractors to pay subcontractors for satisfactory performance of their subcontracts and to set the time for such payments.

State law also addresses the timing of payments to be made to subcontractors and material suppliers. Section 7 of the Prompt Payment Act, 30 ILCS 540/7, requires that when a Contractor receives any payment from the Department, the Contractor shall make corresponding, proportional payments to each subcontractor and material supplier performing work or supplying material within 15 calendar days after receipt of the Department payment. Section 7 of the Act further provides that interest in the amount of two percent per month, in addition to the payment due, shall be paid to any subcontractor or material supplier by the Contractor if the payment required by the Act is withheld or delayed without reasonable cause. The Act also provides that the time for payment required and the calculation of any interest due applies to transactions between subcontractors and lower-tier subcontractors and material suppliers throughout the contracting chain.

This clause establishes the required federal contract clause, and adopts the 15 calendar day requirement of the State Prompt Payment Act for purposes of compliance with the federal regulation regarding payments to subcontractors. This contract is subject to the following payment obligations.

When progress payments are made to the Contractor according to Article 109.07, the Contractor shall make a corresponding payment to each subcontractor and material supplier in proportion to the work satisfactorily completed by each subcontractor and for the material supplied to perform any work of the contract. The proportionate amount of partial payment due to each subcontractor and material supplier throughout the contracting chain shall be determined by the quantities measured or otherwise determined as eligible for payment by the Department and included in the progress payment to the Contractor. Subcontractors

Art. 109.11 Measurement and Payment 72 and material suppliers shall be paid by the Contractor within 15 calendar days after the receipt of payment from the Department. The Contractor shall not hold retainage from the subcontractors. These obligations shall also apply to any payments made by subcontractors and material suppliers to their subcontractors and material suppliers; and to all payments made to lower tier subcontractors and material suppliers throughout the contracting chain. Any payment or portion of a payment subject to this provision may only be withheld from the subcontractor or material supplier to whom it is due for reasonable cause. If reasonable cause is asserted, written notice shall be provided to the applicable subcontractor and/or material supplier and the Engineer within five days of the Contractor receiving payment. The written notice shall identify the contract number, the subcontract or material purchase agreement, a detailed reason for refusal, the value of payment being withheld, and the specific remedial actions required of the subcontractor and/or material supplier so that payment can be made.

This clause does not create any rights in favor of any subcontractor or material supplier against the State or authorize any cause of action against the State on account of any payment, nonpayment, delayed payment, or interest claimed by application of the State Prompt Payment Act. The Department will not approve any delay or postponement of the 15 day requirement except for reasonable cause shown after notice and hearing pursuant to Section 7(b) of the State Prompt Payment Act. State law creates other and additional remedies available to any subcontractor or material supplier, regardless of tier, who has not been paid for work properly performed or material furnished. These remedies are a lien against public funds set forth in Section 23(c) of the Mechanics Lien Act, 770 ILCS 60/23(c), and a recovery on the Contractor’s payment bond according to the Public Construction Bond Act, 30 ILCS 550.

109.12Subcontractor Mobilization Payments. To account for the

preparatory work and operations necessary for the movement of subcontractor personnel, equipment, supplies, and incidentals to the project site and for all other work or operations that must be performed or costs incurred when beginning work approved for subcontracting according to Article 108.01, the Contractor shall make a mobilization payment to each subcontractor.

This mobilization payment shall be made at least 14 days prior to the subcontractor starting work. The amount paid shall be equal to three percent of the amount of the subcontract reported on form BC 260A submitted for the approval of the subcontractor’s work.

The mobilization payment to the subcontractor is an advance payment of the reported amount of the subcontract and is not a payment in addition to the amount of the subcontract; therefore, the amount of the advance payment will be deducted from future progress payments.

This provision shall be incorporated directly or by reference into each subcontract approved by the Department.

Clearing, Tree Removal and Protection Art. 201.02 73

EARTHWORK

SECTION 201. CLEARING, TREE REMOVAL AND PROTECTION, CARE AND REPAIR OF EXISTING PLANT MATERIAL

201.01Description. This work shall consist of performing the following items

wherever they occur within the right-of-way, or within the limits of construction, including the areas of borrow pits furnished by the Department.

obstructions such as fences, walls, foundations, buildings, accumulations of rubbish of whatever nature and existing structures, the removal of which is not otherwise provided for in Article 501.07; all logs, shrubs, bushes, saplings, grass, weeds, other vegetation and stumps of a diameter less than 6 in. (150 mm).

removal, and disposal of trees and stumps, as hereinafter defined.

shall consist of directing work activity away from and protecting trees, shrubs, turf, and herbaceous plants on and adjacent to the right-of-way.

of pruning, fertilizing, and watering existing plant material to maintain health and vigor during and following construction activity.

existing plant material damaged by the Contractor shall consist of restoring to original condition specific plant material that was designated to be saved within the limits of construction, or restoring plant material outside the limits of construction that was damaged by the Contractor.

201.02Definitions. Tree - A woody, perennial plant having a single main

stem or trunk, the diameter of which is 6 in. (150 mm) or more at a point 4.5 ft (1.3 m) above the highest ground level at the base of the tree. Those having a diameter less than 6 in. (150 mm) will be considered saplings. A multiple-stem tree that forks below the 4.5 ft (1.3 m) point of measurement will be considered a cluster of individual trees. A tree that forks at or above the 4.5 ft (1.3 m) point of measurement will be considered a single tree.

A tree stump with a diameter at cut off of 6 in. (150 mm) or more will be considered as a tree for purposes of measurement and removal.

Limits of Construction - A boundary line, not necessarily the right-of-way line, extending along each side of the centerline of the improvement as shown on the plans or cross sections, or as designated by the Engineer.