CDBG_-_Supplemental_General_Conditions_for_Construction_Contracts_-_CDBG_non_ACC_.pdf

Supplemental General Conditions for Construction Contracts

Rev. 08-16-23

SUPPLEMENTAL GENERAL CONDITIONS FOR CONSTRUCTION CONTRACTS,

CDBG NON-ACC

Delete: Applicability. This form is applicable to any Construction/development contract greater than

$100,000.

Insert: Applicability. This form is applicable to any Construction/development contract greater than

$3,000.

Introduction: Delete:

HUD 24 CFR 85.36

Insert:

HUD 2 CFR Parts 200.317 – 200.326

TABLE OF CONTENTS

MODIFICATION TO FORM HUD-5370 (1/2014) – GENERAL CONDITIONS FOR CONSTRUCTION

CONTRACTS – PUBLIC HOUSING PROGRAMS

Clause 1: Definitions Clause 2: Contractor's Responsibility for Work Clause 8: Differing Site Conditions Clause 9: Specifications and Drawings for Construction Clause 11: Material and Workmanship Clause 12: Permits and Codes Clause 16: Protection of Existing Vegetation, Structures, Equipment, Utilities, and Improvements Clause 20: Inspection and Acceptance of Construction Clause 25: Contract Period: Substantial Completion Date – Performance Period Clause 26: Order of Precedence Clause 27: Payments Clause 30: Suspension of Work Clause 31: Disputes Clause 33: Liquidated Damages Clause 34: Termination for Convenience Clause 36: Insurance: and Public Liability Clause 37: Subcontracts Clause 40: Employment, Training, and Contracting Opportunities for Low-Income Persons, Section 3 of the Housing and Urban Development Act of 1968.

Clause 46: Labor Standards – Davis-Bacon and Related Acts Clause 47: Non-Federal Prevailing Wage Rates Clause 49: INSERT: Laws to Be Observed Clause 50: INSERT: Non-Smoking Facilities Clause 51: INSERT: Electronic Certified Payroll Reporting

Clause 1: Definitions:

Delete:

(c) “Contracting Officer” means the person delegated the authority by the PHA to enter into, administer, and/or terminate this contract and designated as such in writing to the Contractor. The term includes any successor Contracting Officers and any duly authorized representative of the Contracting Officer also designated in writing. The Contracting Officer shall be deemed the authorized agent of the PHA in all dealings with the Contractor.

(c) “Contracting Officer” means the person delegated the authority by the PHA to enter into, administer, and/or terminate this contract and designated as such in writing to the Contractor. The term includes any successor Contracting Officer.

The Contracting Officer shall be deemed the authorized agent of the PHA in all dealings with the Contractor.

(j) “Acceptance” means the act of a Contracting Officer of the Agency by which the Agency approves and assumes ownership of the work performed under this contract Acceptance may be partial or complete.

(k) “Agency Project Manager” means the person delegated by the Contracting

Officer for all day to day coordination for field or site administration.

Insert:

(m) “Addenda” means any changes, revisions or clarifications of the Contract

Documents that have been duly issued by the Agency to prospective Bidders prior to time of receiving Bids.

(n) “HA”, “PHA”, “Owner” or “Agency” means the entity that is authorized to undertake this contract.

Clause 2: Contractor’s Responsibility for Work

Delete:

(c) At all times during performance of this contract and until the work is completed and accepted, the Contractor shall directly superintend the work or assign and have on the work site a competent superintendent who is satisfactory to the Contracting Officer and has authority to act for the Contractor.

(c) Refer to the Bid Form.

Clause 8: Differing Site Conditions:

(b) The Contracting Officer shall investigate the site conditions promptly after receiving the notice. Work shall not proceed at the affected site, except at the Contractor’s risk, until the Contracting Officer has provided written instructions to the Contractor. If the conditions do materially so differ and cause an increase or decrease in the Contractor’s cost of, or the time required for, performing any part of the work under this contract, whether or not changed as a result of the conditions, the Contractor shall file a claim in writing to the PHA within ten days after receipt of such instructions and, in any event, before proceeding with the work. An equitable adjustment in the contract price, the delivery schedule, or both shall be made under this clause and the contract modified in writing accordingly.

(b) The Agency shall investigate the site conditions promptly after receiving the notice. Work shall not proceed at the affected site, except at the Contractor’s risk, until the Contracting Officer has provided written instructions to the Contractor. If the conditions do materially so differ and cause an increase or decrease in the Contractor’s cost of, or the time required for, performing any part of the work under this contract, whether or not changed as a result of the conditions, the Contractor shall file a claim in writing to the PHA within ten days after receipt of such instructions and, in any event, before proceeding with the work. An equitable adjustment in the contract price, the delivery schedule, or both shall be made under this clause and the contract modified in writing accordingly.

(e) Public Contract Code §7104 states that any work, which involves digging trenches, or other excavations that extend deeper than four feet below surface require the following. The Agency requires the following for any depth.

That Contractor shall promptly, and before the following conditions are disturbed, notify the Agency, in writing of any:

(1) Material that the Contractor believes may be material that is hazardous waste, as defined in Section 25117 of the California Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law.

(2) Subsurface or latent physical conditions at the site differing from those indicated.

(3) Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in the work of the character provided for in the contract.

The Agency shall promptly investigate the conditions, and if its finds the conditions do materially so differ, or involve hazardous waste, or cause a decrease or increase in the Contractor’s cost of, or time required for, performance of any part of the work, the Contractor shall not be excused from any scheduled completion date provided for by the contract, but shall proceed with all work to be performed under the contract. The Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the contracting parties.

(f) Insert:

Work shall not proceed at the affected site, except at the Contractor’s risk, until the Contracting Officer has provided written instructions to the Contractor.

Clause 9: Specifications and Drawings for Construction:

(a) The Contractor shall keep on the work site a copy of the drawings and specifications and shall at all times give the Contracting Officer access thereto.

Anything mentioned in the specifications and not shown on the drawings, or shown on the drawings and not mentioned in the specifications, shall be of like effect as if shown or mentioned in both. In case of difference between drawings and specifications, the specifications shall govern. In case of discrepancy in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to the Contracting Officer, who shall promptly make a determination in writing. Any adjustment by the Contractor without such a determination shall be at its own risk and expense. The Contracting Officer shall furnish from time to time such detailed drawings and other information as considered necessary, unless otherwise provided.

(a) The Contractor shall keep on the work site a copy of the drawings and specifications and shall at all times give the Contracting Officer access thereto.

Anything mentioned in the specifications and not shown on the drawings, or shown on the drawings and not mentioned in the specifications, shall be of like effect as if shown or mentioned in both.

In the event of a conflict between the specifications or the drawings, the Contractor is to refer to and follow the document containing the most specification, detail, higher quality or most restrictive document. All the contract documents are essential parts of the Contract, and a requirement occurring in one is just as binding as though occurring in all. They are intended to be cooperative and to describe and provide information to complete the work of the Project. If there is a discrepancy or ambiguity, the matter shall be promptly submitted in writing to the Contracting Officer who shall promptly make a determination in writing.

The Contractor must provide written notice of any ambiguity to the Contracting Officer. Should the Contractor not provide such notice and prepare its bid or commence with work without resolution of the ambiguity by the Contracting Officer, the Contractor proceeds at its own risk and expense.

Clause 12: Permits and Codes

(b) The Contractor shall secure and pay for all permits, fees, and licenses necessary for the proper execution and completion of the work. Where the PHA can arrange for the issuance of all or part of these permits, fees, and licenses, without cost to the Contractor, the contract amount shall be reduced accordingly.

(b) Refer to Bid Form.

Clause 16: Protection of Existing Vegetation, Structures, Equipment, Utilities, and Improvements:

(l) The Contractor will consult with the Agency Project manager prior to removal of roots and branches which interfere with construction operations.

Clause 20: Inspection and Acceptance of Construction:

(k) Upon request of the Contracting Officer, the Contractor shall notify the Contracting Officer of the time and place of preparation, manufacture, or construction of any material for the work or any part of the work which the Contracting Officer may wish to inspect, and of the time and place of the factory testing as required pursuant to the Contract Documents.

Clause 25: Contract Period

Delete in its entirety.

Refer to Bid Form.

Clause 26: Order of Provisions:

In the event of a conflict between theses General Conditions and the Specifications, the General Conditions shall prevail. In the event of a conflict between the contract and any applicable state or local law or regulation, the state or local law or regulation shall prevail;

provided that such state or local law or regulation does not conflict with, or is less restrictive than applicable federal law, regulation, or Executive Order. In the event of such a conflict, applicable federal law, regulation, and Executive order shall prevail.

Insert:

In the event of a conflict between the General Conditions, the General Requirements, the Technical Specifications, or the Drawings for construction, the Contractor is to refer to and follow the document containing the most specification, detail, higher quality or most restrictive document. All the Contract Documents are essential parts of the Contract, and a requirement occurring in one is just as binding as though occurring in all. They are intended to be cooperative and to describe and provide information to complete the work of the Project. The Contractor shall not take advantage of any apparent errors or omissions in the Contract Documents. If there is a discrepancy or ambiguity, the matter shall be promptly submitted in writing to the Contracting Officer, who shall promptly make a determination in writing.

The Contractor must provide written notice of any ambiguity to Contracting Officer.

Should the Contractor not provide such notice and prepare its bid or commence with work without resolution of the ambiguity by the Contracting Officer, the Contractor proceeds at its own risk and expense.

Clause 27: Payments:

(f) Except as otherwise provided in State Law, the PHA shall retain ten (10) percent of the amount of progress payments until completion and acceptance of all work under the contract; except, that if upon completion of 50 percent of the work, the Contracting Officer, after consulting with the Architect, determines that the Contractor’s performance and progress are satisfactory, the PHA may make the remaining payments in full for the work subsequently completed. If the Contracting Officer subsequently determines that the Contractor’s performance and progress are unsatisfactory, the PHA shall reinstate the ten (10) percent (or other percentage as provided in State law) retainage until such time as the Contracting Officer determines that performance and progress are satisfactory.

(f) In accordance with California Public Contract Code §7201, the PHA shall retain five (5) percent of the amount of progress payments until completion and acceptance of all work under the contract; except, that if upon completion of 50 percent of the work, the Contracting Officer, after consulting with the Architect, determines that the Contractor’s performance and progress are satisfactory, the PHA may make the remaining payments in full for the work subsequently completed. If the Contracting Officer performance and progress are unsatisfactory, the PHA shall reinstate the five (5) percent retainage until such time as the Contracting Officer determines that performance and progress are satisfactory.

(l) Upon request of a payment request the Agency shall act in accordance with the California Public Contract Code, Section 20104.50 as follows:

(1) If Agency fails to make any progress payment within 30 days after receipt of an undisputed and properly submitted payment request from Contractor, the Agency shall pay interest to the Contractor equivalent to the legal rate set forth in subdivision (a) of Section 685.010 of the Code of Civil Procedure.

(2) Upon receipt of a payment request, Agency shall:

(i) Review the payment request as soon as practicable for the purpose of determining that payment request is a proper payment request;

(ii) any payment request determined not to be a proper payment request suitable for payment shall be returned to the Contractor as soon as practicable but in no case later than seven days after its receipt by the Agency. A payment request returned pursuant to this paragraph shall be accompanied by a written explanation as to why the request is not proper; and

(iii) the number of days available to the Agency to make a payment without incurring an interest charge shall be reduced by the number of days that the Agency exceeds the seven day return requirement.

(m) Retention: Pursuant to the California Public Contract Code Section 22300 the Contractor may request that the Agency substitute a security in the amount of the performance retention. Alternatively, the Contractor may request that payment of the retention be made directly to an escrow agent at the expense of the Contractor. Upon satisfactory completion of the contract, the securities from the Agency or payments paid into escrow. Shall the Contractor elect, at its own expense, to enter into an escrow agreement such agreement shall be in substantially the same form as provided in Section 22300(f) of the California Public Contract Code. This section shall apply to only those subcontractors performing more than five percent of the contractor’s total contract bid. No contractor shall require any subcontractor to waive any provision of the section or Section 22300 of the Public Contract Code.

Clause 30: Suspension of Work

(c) The Contractor shall have no claim for extra compensation for any hindrance or delays of work from a cause not involving the Agency during the progress thereof, although the Contractor may ask for an extension of the time agreed upon by Agency for completion of the Project work. In the case where the Agency is responsible for the delay the Agency shall be responsible for an equitable adjustment to the contract price relating thereto under Public Contract Code Section 7102.

(d) Inclement weather shall not be a prima facie reason for the granting of an extension of time, and the Contractor shall make every effort to continue work under prevailing conditions. The Agency may, however, grant an extension of time if an unavoidable delay as a result of unusual and severe inclement weather fact occurs, and such shall then be classified as “Excusable Delay.”

Clause 31: Disputes:

(g) Notwithstanding any other provision of the Contract Documents, disputes between the Agency and the Contractor involving claims of less than Three Hundred and Seventy Five Thousand Dollars ($375,000.00) shall be handled in accordance with the provisions of the California Public Contract Code §20104.2.

Clause 33: Liquidated Damages:

(a) If the Contractor fails to complete the work within the time specified in the contract, or any extension, as specified in the clause entitled Default of this contract, the Contractor shall pay to the PHA as liquidated damages, the sum of $___ [Contracting Officer insert amount] for each day of delay. If different completion dates are specified in the contract for separate parts or stages of the work, the amount of liquidated damages shall be assessed on those parts or stages which are delayed. To the extent that the Contractor’s delay or nonperformance is excused under another clause in this contract, liquidated damages shall not be due the PHA. The Contractor remains liable for damaged caused other than by delay.

(a) Refer to Bid Form.

Clause 34: Termination for Convenience:

Delete:

(c) The contracting Officer will act on the Contractor’s claim within days (60 days unless otherwise indicated) of receipt of the Contractor’s claim.

(c) The Contracting Officer will act on the Contractor’s claim within 30 days of receipt of the Contractor’s claim.

Clause 36: Insurance:

Delete in its entirety.

Refer to Insurance Requirements.

Clause 37: Subcontracts

(f) Refer to Section 4100 et seq. of the Public Contract Code.

Clause 40: Employment, Training, and Contracting Opportunities for Low-Income Persons, Section 3 of the Housing and Urban Development Act of 1968:

(h) Each contractor and subcontractor undertaking work in connection with this project is obligated to utilize, to the greatest extent feasible, lower income project area residents to fill all open positions, first and foremost, through the First Source Program.

Clause 46: Labor Standards – Davis-Bacon and Related Acts

Delete in its entirety

Insert:

Refer to Federal Labor Standards Provisions, form HUD-4010 (06/2009)

Clause 47: Non-Federal Prevailing Wage Rates

Delete in its entirety

Insert:

This contract is subject to State of California prevailing wages. A copy of the wages are available at the following website address: www.dir.ca.gov/DLSR/PWD or at phone number 888-ASK-WAGE / 888-275-9243. Refer to Section 00260 – Prevailing Wages.

When higher, the Contractor and all Subcontractors shall pay state prevailing wage rather than the Davis-Bacon Wage for that trade. The Contractor shall comply with Labor Code Sections 1770 to 1780, inclusive. Refer to Section 00270 – Provision – Prevailing Wage Requirements.

Clause 49: Insert:

LAWS TO BE OBSERVED:

Attention of the Contractor is directed to certain laws, which affect the Contract Documents. The listing of such laws in these Supplemental General Conditions is not to be construed as a listing of all applicable laws, but rather a summary upon which the Contractor can base its investigation and familiarization of these and all other applicable laws.

(a) The Contractor is familiar with all federal, state and local laws, ordinances, codes and regulations which in any manner affect those engaged or employed in the Project or the material or equipment used in or upon the Project, or in any way affect the conduct of the Project. No pleas of misunderstanding of such laws, ordinances, codes or regulations or of ignorance of the same, on the part of the Contractor shall, in any way, serve to modify the provision of the Contract Documents.

(b) The Contractor at all times shall observe and comply with all federal, state, and local laws, ordinances, codes and regulations affecting the conduct of the Project, and the contractor and his, her, or its surety shall indemnify, defend and save harmless the Agency and all of its officers, agents, and employees against any claim for liability arising from, or based upon, the violation of any such laws, ordinance, regulation, decree, or order, whether by the contractor, subcontractors, material men, or by their employees.

(c) The Contract shall give all notices and comply with all laws, ordinances, rules, regulations, and orders of any public authority bearing on the performance of the http://www.dir.ca.gov/DLSR/PWD

Project. If the Contractor observes that any of the Contract Documents are at variance with such laws in any respect, the Contractor shall promptly notify the Agency in writing and any necessary changes shall be adjusted by appropriate modification. If the Contractor performs any work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to the Agency, the Contractor shall assume full responsibility therefore and shall bear all cost attributable thereto.

(d) Child Support Compliance Act: (1) Contractor recognizes the importance of child and family support and shall fully comply with all applicable state and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with Section 5200) of Part 5 of Division 9 of the Family Code; and (2) Contractor, to the best of its knowledge, is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry, maintained by the California Employment Development Department.

Clause 50: Insert:

NON-SMOKING FACILITIES

Contractors are noticed that all public housing properties, including dwelling units, are

Non-Smoking facilities. Contractors and all subcontractors performing work on this Project shall not smoke in any dwelling unit, building, or any of the common areas or adjoining grounds of such building or other parts of the housing community. Smoking is not allowed within 25 feet of any doors or windows. The Contractor shall be responsible for its subcontractors compliance with this clause.

Clause 51: Insert:

Electronic Certified Payroll Reporting

The Prime Contractor and all Sub-Contractors (all tiers) will be required to submit weekly electronic certified payroll reports and labor compliance documents at no additional charge to the Agency.

END OF SECTION