Sec. 18.1-7. Alternative policies on claims in lieu of Va. code § 2.2-4363, Va. code § 2.2-4364 E, and Va. code § 2.2-4365 through § 2.2-4366.
Any claims by a contractor or anyone claiming on the contractor’s behalf against the city arising under or relating to any contract between the city and the contractor shall only be resolved as follows:
(a) Initial notice, submission of claim, and consideration.
(1) The contractor shall give the city written notice of any claim within ten (10) days of the beginning of the occurrence of the event leading to the claim being made. The written notice shall be a document from the contractor addressed to the city official or employee designated by the contract to receive such notice, or if no one is so designated, to the city manager. The written notice shall clearly state the contractor's intention to make a claim, shall describe the occurrence involved, and shall be transmitted in a manner to ensure receipt by the city official or employee designated in the contract to receive such notice, or if no one is so designated, by the city manager, within the ten (10) days. The contractor shall submit the claim and any supporting data to the city within thirty (30) days after the occurrence giving rise to the claim ends. The burden shall be on the contractor to substantiate that it has given written notice and submitted its claim in accordance with this provision.
(2) The claim must be certified under oath as true and correct by a principal of contractor; must be for specific relief; if any money is sought, must specify the dollar amount sought; and must contain sufficient supporting documentation to reasonably allow its consideration, including without limitation, any documentation required by the contract. The burden shall be on the contractor to substantiate the claim.
(3) In circumstances where the terms and conditions of a contract require the contractor to submit a claim to an architect, engineer, or consultant for decision or to appeal a decision of an architect, engineer, or consultant, or to provide additional supporting documentation for its claim, the contractor shall comply with such terms and conditions in addition to these procedures. No decision by the architect, engineer, or consultant shall be binding on the city, but such decision shall have whatever effect on the contractor that the contract provides.
(4) Following consideration by the architect, engineer, or consultant, if applicable, and following initial, informal consideration by the city manager, the parties shall endeavor to resolve any claim through direct negotiations, and if such direct negotiations fail, and if the city requests, by non-binding mediation conducted pursuant to the rules of the American arbitration association, with the site of the mediation being Lynchburg, Virginia.
(5) Should the claim remain unresolved for more than sixty (60) days after it is submitted, then the city manager shall, within no later than ninety (90) days after the claim's submission, render a written decision on the claim on behalf of the city. The contractor may not institute any legal action with respect to the claim until after the city manager renders his written decision or ninety (90) days from its receipt by the city manager has passed, whichever comes first.
(b) Appeal of denial of claim.
(1) If the city denies in whole or part a claim by a contractor or more than ninety (90) days have passed since the claim was received by the city manager but no written decision has been issued, the contractor may appeal denial of the claim by instituting a lawsuit or chancery action, as appropriate, in the Lynchburg circuit court, Lynchburg, Virginia, or if the subject or amount in controversy is within its jurisdiction, the Lynchburg general district court, Lynchburg, Virginia, and may thereafter pursue all available appeals in Virginia state courts, to the extent they have jurisdiction.
(2) The contractor must initiate its appeal of the claim within one hundred eighty (180) days of the date it first has the right to do so or the claim will be barred and the city manager’s decision will be binding and conclusive.
(3) The contractor may not amend its claim on appeal to increase the amount of money sought.
(c) In the event of any claim arising, contractor shall continue its performance diligently during such claim's pendency and thereafter as if no claim had arisen. During the pendency of any claim in connection with the payments of moneys, contractor shall be entitled to receive payments for non-disputed items, subject to any right of set-off by the city.
(d) These procedures and the provisions of this Lynchburg public procurement code and the contract supersede any right at common law by contractor for a claim of material breach or for rescission of such contract.
(e) Any purportedly binding arbitration provision in a contract with the city shall be void and of no effect unless the arbitration has expressly been considered and specifically approved in writing by the city manager and city attorney.
(f) No claims by a contractor for cumulative impacts of purported schedule delays may be made. Contractors must provide separate written notice and separate claims for each alleged schedule delay as it arises.
(g) These procedures shall be deemed automatically incorporated by reference into any contract entered into by the city. However, the city manager or his designee(s) should ensure this section is referenced or included in all the city's contracts.
(h) The city manager or his designee(s) may further supplement this Sec. 18.1-7 of this Lynchburg public procurement code with the terms and conditions of any contract.
(i) Complete satisfaction of this Sec. 18.1-7 is an absolute prerequisite for contractor to pursue a claim arising under or relating to the contract. Failure by contractor to satisfy any provision of this Sec. 18.1-7 shall constitute a waiver by contactor of the claim and shall preclude the contractor’s further pursuit of such claim. (Ord. of 12/13/05, Ord. No. O-05-161)
Last updated date: 10/23/2006 4:15:21 PM