HUD_5370_(exp_11.30.2023).pdf

Subcontracting with Small and Minority Firms, Women’s

Protection of Existing Vegetation, Structures, Employment, Training, and Contracting Opportunities

Interest of Members, Officers, or Employees and

U.S. Department of Housing and UrbanDev elopment Office of Public and Indian Housing OMB Approval No. 2577-0157 (exp. 11/30/2023)

General Conditions for Construction Contracts - Public Housing Programs

Applicability. This form is applicable to any construction/development contract greater than $150,000.

Public reporting burden for this collection of information is estimated to average 1 hour. This includes the time for collecting, reviewing, and reporting the data. The information requested is required to obtain a benefit. This form includes those clauses required by OMB's common rule on grantee procurement, implemented at HUD in 2 CFR 200, and those requirements set forth in Section 3 of the Housing and Urban Development Act of 1968 and its amendment by the Housing and Community Development Act of 1992, implemented by HUD at 24 CFR Part 135. The form is required for construction contracts awarded by Public Housing Agencies (PHAs). The form is used by Housing Authorities in solicitations to provide necessary contract clauses.

If the form were not used, PHAs would be unable to enforce their contracts.. There are no assurances of confidentiality. HUD may not conduct or sponsor, and an applicant is not required to respond to a collection of information unless it displays a currently valid OMB control number.

Table of Contents Page PageClause Clause

1. Definitions 2 Administrative Requirements

2. Contractor’s Responsibility for Work 2 25. Contract Period 9

3. Architect’s Duties, Responsibilities and Authority 2 26. Order of Precedence 9

4. Other Contracts 3 27. Payments 9

28. Contract Modifications 10Construction Requirements

5. Preconstruction Conference and Notice to Proceed 3 29. Changes 10

6. Construction Progress Schedule 3 30. Suspension of Work 11

7. Site Investigation and Conditions Affecting the Work 3 31. Disputes 11

8. Differing Site Conditions 4 32. Default 11

9. Specifications and Drawings for Construction 4 33. Liquidated 12

10. As-Built Drawings 5 34. Termination of Convenience 12

11. Material and Workmanship 5 35. Assignment of Contract 12

12. Permits and Codes 5 36. Insurance 12

13. Health, Safety, and Accident Prevention 6 37. Subcontracts 13

14. Temporary Buildings and Transportation Materials 6 38. 13

Business Enterprise, and Labor Surplus Area Firms

15. Availability and Use of Utility Services 6 39. Equal Employment Opportunity 13

16. 40. 14

Equipment, Utilities, and Improvements 6 for Low-Income Persons, Section 3 of the Housing and Urban Development Act of 1968

17. Temporary Buildings and Transportation Materials 7 41. Interest of Members of Congress 15

18. Clean Air and Water 7 42. 15

Former Members, Officers, or Employees

19. Energy Efficiency 7 43. Limitations on Payments Made to Influence 15

20. Inspection and Acceptance of Construction 7 44. Royalties and Patents 15

21. Use and Possession Prior to 8 45. Examination and Retention of Contractor’s Records 15

22. Warranty of Title 8 46. Labor Standards-Davis-Bacon and Related Acts 15

23. Warranty of 8 47. Non-Federal Prevailing Wage Rates 19

24. Prohibition Against 9 48. Procurement of Recovered 19

Liens Materials

Previous editions are obsolete Page 1 of 19 form HUD-5370 (1/2014) Replaces form HUD-5370-A

(a) The Contractor shall furnish all necessary labor,1. Definitions materials, tools, equipment, and transportation necessary for performance of the work. The Contractor shall also(a) “Architect” means the person or other entity engaged by furnish all necessary water, heat, light, and power notthe PHA to perform architectural, engineering, design, made available to the Contractor by the PHA pursuant toand other services related to the work as provided for in the clause entitled Availability and Use of Utility Servicesthe contract. When a PHA uses an engineer to act in this herein.capacity, the terms “architect” and “engineer” shall be

(b) The Contractor shall perform on the site, and with its ownsynonymous. The Architect shall serve as a technical organization, work equivalent to at least [ ] (12 percentrepresentative of the Contracting Officer. The Architect’s unless otherwise indicated) of the total amount of work toauthority is as set forth elsewhere in this contract.

be performed under the order. This percentage may be(b) “Contract” means the contract entered into between the reduced by a supplemental agreement to this order if,PHA and the Contractor. It includes the forms of Bid, the during performing the work, the Contractor requests aBid Bond, the Performance and Payment Bond or Bonds reduction and the Contracting Officer determines that theor other assurance of completion, the Certifications, reduction would be to the advantage of the PHA.Representations, and Other Statements of Bidders (form

(c) At all times during performance of this contract and untilHUD-5370), these General Conditions of the Contract for the work is completed and accepted, the Contractor shallConstruction (form HUD-5370), the applicable wage rate directly superintend the work or assign and have on thedeterminations from the U.S. Department of Labor, any work site a competent superintendent who is satisfactoryspecial conditions included elsewhere in the contract, the to the Contracting Officer and has authority to act for thespecifications, and drawings. It includes all formal Contractor.changes to any of those documents by addendum, change order, or other modification. (d) The Contractor shall be responsible for all damages to

(c) “Contracting Officer” means the person delegated the au- persons or property that occur as a result of the

Contractor’s fault or negligence, and shall take properthority by the PHA to enter into, administer, and/or safety and health precautions to protect the work, theterminate this contract and designated as such in writing workers, the public, and the property of others. Theto the Contractor. The term includes any successor Contractor shall hold and save the PHA, its officers andContracting Officer and any duly authorized agents, free and harmless from liability of any naturerepresentative of the Contracting Officer also designated occasioned by the Contractor’s performance. Thein writing. The Contracting Officer shall be deemed the Contractor shall also be responsible for all materialsauthorized agent of the PHA in all dealings with the delivered and work performed until completion andContractor.

acceptance of the entire work, except for any completed(d) “Contractor” means the person or other entity entering unit of work which may have been accepted under theinto the contract with the PHA to perform all of the work required under the contract. contract.

(e) “Drawings” means the drawings enumerated in the (e) The Contractor shall lay out the work from base lines and bench marks indicated on the drawings and beschedule of drawings contained in the Specifications and responsible for all lines, levels, and measurements of allas described in the contract clause entitled Specifications work executed under the contract. The Contractor shalland Drawings for Construction herein.

verify the figures before laying out the work and will be(f) “HUD” means the United States of America acting through held responsible for any error resulting from its failure tothe Department of Housing and Urban Development do so.including the Secretary, or any other person designated to

(f) The Contractor shall confine all operations (includingact on its behalf. HUD has agreed, subject to the provisions of an storage of materials) on PHA premises to areasAnnual Contributions Terms and Conditions (ACC), to authorized or approved by the Contracting Officer.provide financial assistance to the PHA, which includes

(g) The Contractor shall at all times keep the work area,assistance in financing the work to be performed under including storage areas, free from accumulations ofthis contract. As defined elsewhere in these General waste materials. After completing the work and beforeConditions or the contract documents, the determination final inspection, the Contractor shall (1) remove from theof HUD may be required to authorize changes in the work premises all scaffolding, equipment, tools, and materialsor for release of funds to the PHA for payment to the (including rejected materials) that are not the property ofContractor. Notwithstanding HUD’s role, nothing in this the PHA and all rubbish caused by its work; (2) leave thecontract shall be construed to create any contractual work area in a clean, neat, and orderly conditionrelationship between the Contractor and HUD.

satisfactory to the Contracting Officer; (3) perform all(g) “Project” means the entire project, whether construction specified tests; and, (4) deliver the installation inor rehabilitation, the work for which is provided for in whole or in part under this contract. complete and operating condition.

(h) The Contractor’s responsibility will terminate when all(h) “PHA” means the Public Housing Agency organized work has been completed, the final inspection made, andunder applicable state laws which is a party to this the work accepted by the Contracting Officer. Thecontract.

Contractor will then be released from further obligation(j) “Specifications” means the written description of the except as required by the warranties specified elsewheretechnical requirements for construction and includes the in the contract.criteria and tests for determining whether the requirements are met.

3. Architect’s Duties, Responsibilities, and Authority(l) “Work” means materials, workmanship, and manufacture and fabrication of components.

(a) The Architect for this contract, and any successor, shall be designated in writing by the Contracting Officer.2. Contractor’s Responsibility for Work

Previous editions are obsolete Page 2 of 19 form HUD-5370 (1/2014)

(b) The Architect shall serve as the Contracting Officer’s technical representative with respect to architectural, 6. Construction Progress Schedule engineering, and design matters related to the work performed under the contract. The Architect may provide (a) The Contractor shall, within five days after the work direction on contract performance. Such direction shall be commences on the contract or another period of time within the scope of the contract and may not be of a determined by the Contracting Officer, prepare and nature which: (1) institutes additional work outside the submit to the Contracting Officer for approval three copies scope of the contract; (2) constitutes a change as defined of a practicable schedule showing the order in which the in the Changes clause herein; (3) causes an increase or Contractor proposes to perform the work, and the dates decrease in the cost of the contract; (4) alters the on which the Contractor contemplates starting and Construction Progress Schedule; or (5) changes any of completing the several salient features of the work the other express terms or conditions of the contract. (including acquiring labor, materials, and equipment). The

(c) The Architect’s duties and responsibilities may include but schedule shall be in the form of a progress chart of shall not be limited to: suitable scale to indicate appropriately the percentage of

(1) Making periodic visits to the work site, and on the work scheduled for completion by any given date during basis of his/her on-site inspections, issuing written the period. If the Contractor fails to submit a schedule reports to the PHA which shall include all observed within the time prescribed, the Contracting Officer may deficiencies. The Architect shall file a copy of the withhold approval of progress payments or take other report with the Contractor’s designated representative remedies under the contract until the Contractor submits at the site; the required schedule.

(2) Making modifications in drawings and technical (b) The Contractor shall enter the actual progress on the specifications and assisting the Contracting Officer in chart as required by the Contracting Officer, and the preparation of change orders and other contract immediately deliver three copies of the annotated modifications for issuance by the Contracting Officer; schedule to the Contracting Officer. If the Contracting

(3) Reviewing and making recommendations with respect Officer determines, upon the basis of inspection to - (i) the Contractor’s construction progress conducted pursuant to the clause entitled Inspection and schedules; (ii) the Contractor’s shop and detailed Acceptance of Construction, herein that the Contractor is drawings; (iii) the machinery, mechanical and other not meeting the approved schedule, the Contractor shall equipment and materials or other articles proposed take steps necessary to improve its progress, including for use by the Contractor; and, (iv) the Contractor’s those that may be required by the Contracting Officer, price breakdown and progress payment estimates; without additional cost to the PHA. In this circumstance, and, the Contracting Officer may require the Contractor to

(4) Assisting in inspections, signing Certificates of increase the number of shifts, overtime operations, days Completion, and making recommendations with of work, and/or the amount of construction plant, and to respect to acceptance of work completed under the submit for approval any supplementary schedule or contract. schedules in chart form as the Contracting Officer deems necessary to demonstrate how the approved rate of progress will be regained.4. Other Contracts

(c) Failure of the Contractor to comply with the requirements The PHA may undertake or award other contracts for of the Contracting Officer under this clause shall be additional work at or near the site of the work under this grounds for a determination by the Contracting Officer that contract. The Contractor shall fully cooperate with the the Contractor is not prosecuting the work with sufficient other contractors and with PHA employees and shall diligence to ensure completion within the time carefully adapt scheduling and performing the work under specified in the Contract. Upon making this this contract to accommodate the additional work, heeding determination, the Contracting Officer may terminate the any direction that may be provided by the Contracting Contractor’s right to proceed with the work, or any Officer. The Contractor shall not commit or permit any act separable part of it, in accordance with the Default clause that will interfere with the performance of work by any of this contract.

other contractor or by PHA employees

7. Site Investigation and Conditions Affecting the Work Construction Requirements

(a) The Contractor acknowledges that it has taken steps

5. Pre-construction Conference and Notice to Proceed reasonably necessary to ascertain the nature and location of the work, and that it has investigated and satisfied itself

(a) Within ten calendar days of contract execution, and prior as to the general and local conditions which can affect the to the commencement of work, the Contractor shall work or its cost, including but not limited to, (1) conditions attend a preconstruction conference with representatives bearing upon transportation, disposal, handling, and of the PHA, its Architect, and other interested parties storage of materials; (2) the availability of labor, water, convened by the PHA. The conference will serve to electric power, and roads;(3) uncertainties of weather, acquaint the participants with the general plan of the river stages, tides, or similar physical conditions at the construction operation and all other requirements of the site; (4) the conformation and conditions of the ground;

contract. The PHA will provide the Contractor with the and (5) the character of equipment and facilities needed preliminary to and during work performance. Thedate, time, and place of the conference.

Contractor also acknowledges that it has satisfied itself as(b) The contractor shall begin work upon receipt of a written

Notice to Proceed from the Contracting Officer or to the character, quality, and quantity of surface and designee. The Contractor shall not begin work prior to subsurface materials or obstacles to be encountered receiving such notice. insofar as this information is

Previous editions are obsolete Page 3 of 19 form HUD-5370 (1/2014) reasonably ascertainable from an inspection of the site, 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.

(b) Wherever in the specifications or upon the drawings the words “directed”, “required”, “ordered”, “designated”, “prescribed”, or words of like import are used, it shall be understood that the “direction”, “requirement”, “order”, “designation”, or “prescription”, of the Contracting Officer is intended and similarly the words “approved”, “acceptable”, “satisfactory”, or words of like import shall mean “approved by”, or “acceptable to”, or “satisfactory to” the Contracting Officer, unless otherwise expressly stated.

(c) Where “as shown” “as indicated”, “as detailed”, or words of similar import are used, it shall be understood that the reference is made to the drawings accompanying this contract unless stated otherwise. The word “provided” as used herein shall be understood to mean “provide complete in place” that is “furnished and installed”.

(d) “Shop drawings” means drawings, submitted to the PHA by the Contractor, subcontractor, or any lower tier subcontractor, showing in detail (1) the proposed fabrication and assembly of structural elements and (2) the installation (i.e., form, fit, and attachment details) of materials of equipment. It includes drawings, diagrams, layouts, schematics, descriptive literature, illustrations, schedules, performance and test data, and similar materials furnished by the Contractor to explain in detail specific portions of the work required by the contract. The PHA may duplicate, use, and disclose in any manner and for any purpose shop drawings delivered under this contract.

(e) If this contract requires shop drawings, the Contractor shall coordinate all such drawings, and review them for accuracy, completeness, and compliance with other contract requirements and shall indicate its approval thereon as evidence of such coordination and review.

Shop drawings submitted to the Contracting Officer without evidence of the Contractor’s approval may be returned for resubmission. The Contracting Officer will indicate an approval or disapproval of the shop drawings and if not approved as submitted shall indicate the PHA’s reasons therefore. Any work done before such approval shall be at the Contractor’s risk. Approval by the Contracting Officer shall not relieve the Contractor from responsibility for any errors or omissions in such drawings, nor from responsibility for complying with the requirements of this contract, except with respect to variations described and approved in accordance with (f) below.

(f) If shop drawings show variations from the contract requirements, the Contractor shall describe such variations in writing, separate from the drawings, at the time of submission. If the Architect approves any such variation and the Contracting Officer concurs, the Contracting Officer shall issue an appropriate modification to the contract, except that, if the variation is minor or does not involve a change in price or in time of performance, a modification need not be issued.

(g) It shall be the responsibility of the Contractor to make timely requests of the PHA for such large scale and full size drawings, color schemes, and other additional information, not already in his possession, which shall be including all exploratory work done by the PHA, as well as from the drawings and specifications made a part of this contract. Any failure of the Contractor to take the actions described and acknowledged in this paragraph will not relieve the Contractor from responsibility for estimating properly the difficulty and cost of successfully performing the work, or for proceeding to successfully perform the work without additional expense to the PHA.

(b) The PHA assumes no responsibility for any conclusions or interpretations made by the Contractor based on the information made available by the PHA. Nor does the PHA assume responsibility for any understanding reached or representation made concerning conditions which can affect the work by any of its officers or agents before the execution of this contract, unless that understanding or representation is expressly stated in this contract.

8. Differing Site Conditions

(a) The Contractor shall promptly, and before the conditions are disturbed, give a written notice to the Contracting Officer of (1) subsurface or latent physical conditions at the site which differ materially from those indicated in this contract, or (2) unknown physical conditions at the site(s), of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the contract.

(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.

(c) No request by the Contractor for an equitable adjustment to the contract under this clause shall be allowed, unless the Contractor has given the written notice required;

provided, that the time prescribed in (a) above for giving written notice may be extended by the Contracting Officer.

(d) No request by the Contractor for an equitable adjustment to the contract for differing site conditions shall be allowed if made after final payment under this contract.

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

Previous editions are obsolete Page 4 of 19 form HUD-5370 (1/2014) required in the planning and production of the work. Such machinery and mechanical and other equipment.

requests may be submitted as the need arises, but each When required by this contract or by the Contracting such request shall be filed in ample time to permit Officer, the Contractor shall also obtain the appropriate action to be taken by all parties involved so Contracting Officer’s approval of the material or as to avoid delay. articles which the Contractor contemplates

(h) The Contractor shall submit to the Contracting Officer for incorporating into the work. When requesting approval four copies (unless otherwise indicated) of all approval, the Contractor shall provide full information shop drawings as called for under the various headings concerning the material or articles. Machinery, of these specifications. Three sets (unless otherwise equipment, material, and articles that do not have the indicated) of all shop drawings, will be retained by the required approval shall be installed or used at the risk PHA and one set will be returned to the Contractor. As of subsequent rejection.

required by the Contracting Officer, the Contractor, upon (2) When required by the specifications or the completing the work under this contract, shall furnish a Contracting Officer, the Contractor shall submit complete set of all shop drawings as finally approved. appropriately marked samples (and certificates These drawings shall show all changes and revisions related to them) for approval at the Contractor’s made up to the time the work is completed and accepted. expense, with all shipping charges prepaid. The

(i) This clause shall be included in all subcontracts at any tier. Contractor shall label, or otherwise properly mark on It shall be the responsibility of the Contractor to ensure the container, the material or product represented, its that all shop drawings prepared by subcontractors are place of origin, the name of the producer, the submitted to the Contracting Officer. Contractor’s name, and the identification of the construction project for which the material or product

10. As-Built Drawings is intended to be used.

(3) Certificates shall be submitted in triplicate, describing

(a) “As-built drawings,” as used in this clause, means each sample submitted for approval and certifying drawings submitted by the Contractor or subcontractor at that the material, equipment or accessory complies any tier to show the construction of a particular structure with contract requirements. The certificates shall or work as actually completed under the contract. “As-built include the name and brand of the product, name of drawings” shall be synonymous with “Record manufacturer, and the location where produced.

drawings.” (4) Approval of a sample shall not constitute a waiver of

(b) As required by the Contracting Officer, the Contractor the PHA right to demand full compliance with contract shall provide the Contracting Officer accurate information requirements. Materials, equipment and accessories may be rejected for cause even though samples haveto be used in the preparation of permanent as-built drawings. For this purpose, the Contractor shall record on been approved.

one set of contract drawings all changes from the (5) Wherever materials are required to comply with installations originally indicated, and record final locations recognized standards or specifications, such of underground lines by depth from finish grade and by specifications shall be accepted as establishing the accurate horizontal offset distances to permanent surface technical qualities and testing methods, but shall not improvements such as buildings, curbs, or edges of govern the number of tests required to be made nor walks. modify other contract requirements. The Contracting

(c) This clause shall be included in all subcontracts at any Officer may require laboratory test reports on items tier. It shall be the responsibility of the Contractor to submitted for approval or may approve materials on ensure that all as-built drawings prepared by the basis of data submitted in certificates with subcontractors are submitted to the Contracting Officer. samples. Check tests will be made on materials delivered for use only as frequently as the Contracting Officer determines necessary to insure compliance of11. Material and Workmanship materials with the specifications. The Contractor will assume all costs of retesting materials which fail to(a) All equipment, material, and articles furnished under this meet contract requirements and/or testing materialscontract shall be new and of the most suitable grade for offered in substitution for those found deficient.the purpose intended, unless otherwise specifically

(6) After approval, samples will be kept in the Projectprovided in this contract. References in the contract to office until completion of work. They may be built intoequipment, material, articles, or patented processes by the work after a substantial quantity of the materialstrade name, make, or catalog number, shall be regarded they represent has been built in and accepted.as establishing a standard of quality and shall not be

(c) Requirements concerning lead-based paint. Theconstrued as limiting competition. The Contractor may, at Contractor shall comply with the requirements concerningits option, use any equipment, material, article, or lead-based paint contained in the Lead-Based Paintprocess that, in the judgment of, and as approved by the Poisoning Prevention Act (42 U.S.C. 4821-4846) asContracting Officer, is equal to that named in the implemented by 24 CFR Part 35.specifications, unless otherwise specifically provided in this contract.

(b) Approval of equipment and materials. 12. Permits and Codes

(1) The Contractor shall obtain the Contracting Officer’s approval of the machinery and mechanical and other (a) The Contractor shall give all notices and comply with all equipment to be incorporated into the work. When applicable laws, ordinances, codes, rules and regulations.

requesting approval, the Contractor shall furnish to the Notwithstanding the requirement of the Contractor to Contracting Officer the name of the manufacturer, the comply with the drawings and specifications in the model number, and other information concerning the contract, all work installed shall comply with all applicable performance, capacity, nature, and rating of the codes and regulations as amended by any

Previous editions are obsolete Page 5 of 19 form HUD-5370 (1/2014) waivers. Before installing the work, the Contractor shall examine the drawings and the specifications for 14. Temporary Heating compliance with applicable codes and regulations bearing on the work and shall immediately report any The Contractor shall provide and pay for temporary discrepancy it may discover to the Contracting Officer. heating, covering, and enclosures necessary to properly Where the requirements of the drawings and protect all work and materials against damage by specifications fail to comply with the applicable code or dampness and cold, to dry out the work, and to facilitate regulation, the Contracting Officer shall modify the the completion of the work. Any permanent heating contract by change order pursuant to the clause entitled equipment used shall be turned over to the PHA in the Changes herein to conform to the code or regulation. condition and at the time required by the specifications.

(b) The Contractor shall secure and pay for all permits, fees, and licenses necessary for the proper execution and 15. Availability and Use of Utility Services completion of the work. Where the PHA can arrange for the issuance of all or part of these permits, fees and (a) The PHA shall make all reasonably required amounts of licenses, without cost to the Contractor, the contract utilities available to the Contractor from existing outlets amount shall be reduced accordingly. and supplies, as specified in the contract. Unless otherwise provided in the contract, the amount of each

13. Health, Safety, and Accident Prevention utility service consumed shall be charged to or paid for by the Contractor at prevailing rates charged to the PHA or,

(a) In performing this contract, the Contractor shall: where the utility is produced by the PHA, at reasonable

(1) Ensure that no laborer or mechanic shall be required rates determined by the Contracting Officer. The to work in surroundings or under working conditions Contractor shall carefully conserve any utilities furnished which are unsanitary, hazardous, or dangerous to without charge.

his/her health and/or safety as determined under (b) The Contractor, at its expense and in a manner construction safety and health standards promulgated satisfactory to the Contracting Officer, shall install and by the Secretary of Labor by regulation; maintain all necessary temporary connections and

(2) Protect the lives, health, and safety of other persons; distribution lines, and all meters required to measure the

(3) Prevent damage to property, materials, supplies, and amount of each utility used for the purpose of equipment; and, determining charges. Before final acceptance of the work

(4) Avoid work interruptions. by the PHA, the Contractor shall remove all the

(b) For these purposes, the Contractor shall: temporary connections, distribution lines, meters, and

(1) Comply with regulations and standards issued by the associated paraphernalia.

Secretary of Labor at 29 CFR Part 1926. Failure to comply may result in imposition of sanctions pursuant 16. Protection of Existing Vegetation, Structures, to the Contract Work Hours and Safety Standards Act Equipment, Utilities, and Improvements (Public Law 91-54, 83 Stat. 96), 40 U.S.C. 3701 et seq.; and (a) The Contractor shall preserve and protect all structures,

(2) Include the terms of this clause in every subcontract equipment, and vegetation (such as trees, shrubs, and so that such terms will be binding on each grass) on or adjacent to the work site, which are not to be subcontractor. removed under this contract, and which do not

(c) The Contractor shall maintain an accurate record of unreasonably interfere with the work required under this exposure data on all accidents incident to work performed contract.

under this contract resulting in death, traumatic injury, (b) The Contractor shall only remove trees when specifically occupational disease, or damage to property, materials, authorized to do so, and shall avoid damaging vegetation supplies, or equipment, and shall report this data in the that will remain in place. If any limbs or branches of trees manner prescribed by 29 CFR Part are broken during performance of this contract, or by the 1904. careless operation of equipment, or by workmen, the

(d) The Contracting Officer shall notify the Contractor of any Contractor shall trim those limbs or branches with a clean noncompliance with these requirements and of the cut and paint the cut with a tree-pruning compound as corrective action required. This notice, when delivered to directed by the Contracting Officer.

the Contractor or the Contractor’s representative at the (c) The Contractor shall protect from damage all existing site of the work, shall be deemed sufficient notice of the improvements and utilities (1) at or near the work site and noncompliance and corrective action required. After (2) on adjacent property of a third party, the locations of receiving the notice, the Contractor shall immediately which are made known to or should be known by the take corrective action. If the Contractor fails or refuses to Contractor. Prior to disturbing the ground at the take corrective action promptly, the Contracting Officer construction site, the Contractor shall ensure that all may issue an order stopping all or part of the work until underground utility lines are clearly marked.

satisfactory corrective action has been taken. The (d) The Contractor shall shore up, brace, underpin, secure, Contractor shall not base any claim or request for and protect as necessary all foundations and other parts equitable adjustment for additional time or money on any of existing structures adjacent to, adjoining, and in the stop order issued under these circumstances. vicinity of the site, which may be affected by the

(e) The Contractor shall be responsible for its subcontractors’ excavations or other operations connected with the compliance with the provisions of this clause. The construction of the project.

Contractor shall take such action with respect to any (e) Any equipment temporarily removed as a result of work subcontract as the PHA, the Secretary of Housing and under this contract shall be protected, cleaned, and Urban Development, or the Secretary of Labor shall replaced in the same condition as at the time of award of direct as a means of enforcing such provisions. this contract.

Previous editions are obsolete Page 6 of 19 form HUD-5370 (1/2014)

(f) New work which connects to existing work shall The contactor shall comply with the Clean Air Act, as correspond in all respects with that to which it connects amended, 42 USC 7401 et seq., the Federal Water and/or be similar to existing work unless otherwise Pollution Control Water Act, as amended, 33 U.S.C. 1251 required by the specifications. et seq., and standards issued pursuant thereto in the

(g) No structural members shall be altered or in any way facilities in which this contract is to be performed.

weakened without the written authorization of the Contracting Officer, unless such work is clearly specified 19. Energy Efficiency in the plans or specifications.

(h) If the removal of the existing work exposes discolored or The Contractor shall comply with mandatory standards unfinished surfaces, or work out of alignment, such and policies relating to energy efficiency which are surfaces shall be refinished, or the material replaced as contained in the energy conservation plan issued in necessary to make the continuous work uniform and compliance with the Energy Policy and Conservation Act harmonious. This, however, shall not be construed to (Pub.L. 94-163) for the State in which the work under the require the refinishing or reconstruction of dissimilar contract is performed.

finishes previously exposed, or finished surfaces in good condition, but in different planes or on different levels 20. Inspection and Acceptance of Construction when brought together by the removal of intervening work, unless such refinishing or reconstruction is (a) Definitions. As used in this clause -specified in the plans or specifications. (1) “Acceptance” means the act of an authorized

(i) The Contractor shall give all required notices to any representative of the PHA by which the PHA approves adjoining or adjacent property owner or other party before and assumes ownership of the work performed under this the commencement of any work. contract. Acceptance may be partial or complete.

(j) The Contractor shall indemnify and save harmless the (2) “Inspection” means examining and testing the work PHA from any damages on account of settlement or the performed under the contract (including, when loss of lateral support of adjoining property, any damages appropriate, raw materials, equipment, components, and from changes in topography affecting drainage, and from intermediate assemblies) to determine whether it all loss or expense and all damages for which the PHA conforms to contract requirements.

may become liable in consequence of such injury or (3) “Testing” means that element of inspection that damage to adjoining and adjacent structures and their determines the properties or elements, including premises. functional operation of materials, equipment, or their

(k) The Contractor shall repair any damage to vegetation, components, by the application of established scientific structures, equipment, utilities, or improvements, principles and procedures.

including those that are the property of a third party, (b) The Contractor shall maintain an adequate inspection resulting from failure to comply with the requirements of system and perform such inspections as will ensure that this contract or failure to exercise reasonable care in the work performed under the contract conforms to performing the work. If the Contractor fails or refuses to contract requirements. All work is subject to PHA repair the damage promptly, the Contracting Officer may inspection and test at all places and at all reasonable have the necessary work performed and charge the cost times before acceptance to ensure strict compliance with to the Contractor. the terms of the contract.

(c) PHA inspections and tests are for the sole benefit of the

17. Temporary Buildings and Transportation of Materials PHA and do not: (1) relieve the Contractor of responsibility for providing adequate quality control

(a) Temporary buildings (e.g., storage sheds, shops, offices, measures; (2) relieve the Contractor of responsibility for sanitary facilities) and utilities may be erected by the loss or damage of the material before acceptance; (3) Contractor only with the approval of the Contracting constitute or imply acceptance; or, (4) affect the Officer and shall be built with labor and materials continuing rights of the PHA after acceptance of the furnished by the Contractor without expense to the PHA. completed work under paragraph (j) below.

The temporary buildings and utilities shall remain the (d) The presence or absence of the PHA inspector does not property of the Contractor and shall be removed by the relieve the Contractor from any contract requirement, nor Contractor at its expense upon completion of the work. is the inspector authorized to change any term or With the written consent of the Contracting Officer, the condition of the specifications without the Contracting

Officer’s written authorization. All instructions andbuildings and utilities may be abandoned and need not be removed. approvals with respect to the work shall be given to the

(b) The Contractor shall, as directed by the Contracting Contractor by the Contracting Officer.

Officer, use only established roadways, or use temporary (e) The Contractor shall promptly furnish, without additional roadways constructed by the Contractor when and as charge, all facilities, labor, and material reasonably authorized by the Contracting Officer. When materials are needed for performing such safe and convenient transported in prosecuting the work, vehicles shall not be inspections and tests as may be required by the loaded beyond the loading capacity recommended by the Contracting Officer. The PHA may charge to the manufacturer of the vehicle or prescribed by any federal, Contractor any additional cost of inspection or test when state, or local law or regulation. When it is necessary to work is not ready at the time specified by the Contractor cross curbs or sidewalks, the Contractor shall protect them for inspection or test, or when prior rejection makes from damage. The Contractor shall repair or pay for the reinspection or retest necessary. The PHA shall perform repair of any damaged curbs, sidewalks, or roads. all inspections and tests in a manner that will not unnecessarily delay the work. Special, full size, and

18. Clean Air and Water performance tests shall be performed as described in the contract.

Previous editions are obsolete Page 7 of 19 form HUD-5370 (1/2014)

(f) The PHA may conduct routine inspections of the occupied without proper remuneration therefore. If prior construction site on a daily basis. possession or use by the PHA delays the progress of the

(g) The Contractor shall, without charge, replace or correct work or causes additional expense to the Contractor, an work found by the PHA not to conform to contract equitable adjustment shall be made in the contract price requirements, unless the PHA decides that it is in its or the time of completion, and the contract shall be interest to accept the work with an appropriate modified in writing accordingly.

adjustment in contract price. The Contractor shall promptly segregate and remove rejected material from 22. Warranty of Title the premises.

(h) If the Contractor does not promptly replace or correct The Contractor warrants good title to all materials, rejected work, the PHA may (1) by contract or otherwise, supplies, and equipment incorporated in the work and replace or correct the work and charge the cost to the agrees to deliver the premises together with all Contractor, or (2) terminate for default the Contractor’s improvements thereon free from any claims, liens or right to proceed. charges, and agrees further that neither it nor any other

(i) If any work requiring inspection is covered up without ap- person, firm or corporation shall have any right to a lien proval of the PHA, it must, if requested by the Contracting upon the premises or anything appurtenant thereto.

Officer, be uncovered at the expense of the Contractor. If at any time before final acceptance of the entire work, the 23. Warranty of Construction PHA considers it necessary or advisable, to examine work already completed by removing or tearing it out, the (a) In addition to any other warranties in this contract, the Contractor, shall on request, promptly furnish all Contractor warrants, except as provided in paragraph (j) necessary facilities, labor, and material. If such work is of this clause, that work performed under this contract found to be defective or nonconforming in any material conforms to the contract requirements and is free of any respect due to the fault of the Contractor or its defect in equipment, material, or workmanship performed subcontractors, the Contractor shall defray all the by the Contractor or any subcontractor or supplier at any expenses of the examination and of satisfactory tier. This warranty shall continue for a period of reconstruction. If, however, such work is found to meet (one year unless otherwise indicated) from the date of final the requirements of the contract, the Contracting Officer acceptance of the work. If the PHA takes possession of shall make an equitable adjustment to cover the cost of any part of the work before final acceptance, this warranty the examination and reconstruction, including, if shall continue for a period of (one year unless otherwise completion of the work was thereby delayed, an indicated) from the date that the PHA takes extension of time. possession.

(j) The Contractor shall notify the Contracting Officer, in (b) The Contractor shall remedy, at the Contractor’s writing, as to the date when in its opinion all or a expense, any failure to conform, or any defect. In designated portion of the work will be substantially addition, the Contractor shall remedy, at the Contractor’s completed and ready for inspection. If the Architect expense, any damage to PHA-owned or controlled real or determines that the state of preparedness is as personal property when the damage is the result of— represented, the PHA will promptly arrange for the (1) The Contractor’s failure to conform to contract require-inspection. Unless otherwise specified in the contract, the ments; or PHA shall accept, as soon as practicable after completion (2) Any defects of equipment, material, workmanship or and inspection, all work required by the contract or that design furnished by the Contractor.

portion of the work the Contracting Officer determines and (c) The Contractor shall restore any work damaged in designates can be accepted separately. Acceptance shall fulfilling the terms and conditions of this clause. The be final and conclusive except for latent defects, fraud, Contractor’s warranty with respect to work repaired or gross mistakes amounting to fraud, or the PHA’s right replaced will run for (one year unless otherwise indicated) under any warranty or guarantee. from the date of repair or replacement.

(d) The Contracting Officer shall notify the Contractor, in

21. Use and Possession Prior to Completion writing, within a reasonable time after the discovery of any failure, defect or damage.

(a) The PHA shall have the right to take possession of or use (e) If the Contractor fails to remedy any failure, defect, or any completed or partially completed part of the work. damage within a reasonable time after receipt of notice, Before taking possession of or using any work, the the PHA shall have the right to replace, repair or Contracting Officer shall furnish the Contractor a list of otherwise remedy the failure, defect, or damage at the

Contractor’s expense.items of work remaining to be performed or corrected on those portions of the work that the PHA intends to take (f) With respect to all warranties, express or implied, from possession of or use. However, failure of the Contracting subcontractors, manufacturers, or suppliers for work Officer to list any item of work shall not relieve the performed and materials furnished under this contract, Contractor of responsibility for complying with the terms of the Contractor shall:

the contract. The PHA’s possession or use shall not be (1) Obtain all warranties that would be given in normal deemed an acceptance of any work under the contract. commercial practice;

(b) While the PHA has such possession or use, the (2) Require all warranties to be executed in writing, for the Contractor shall be relieved of the responsibility for (1) the benefit of the PHA; and, loss of or damage to the work resulting from the PHA’s (3) Enforce all warranties for the benefit of the PHA.

possession or use, notwithstanding the terms of the (g) In the event the Contractor’s warranty under paragraph clause entitled Permits and Codes herein; (2) all (a) of this clause has expired, the PHA may bring suit at maintenance costs on the areas occupied; and, (3) its own expense to enforce a subcontractor’s, furnishing heat, light, power, and water used in the areas manufacturer’s or supplier’s warranty.

Previous editions are obsolete Page 8 of 19 form HUD-5370 (1/2014)

(h) Unless a defect is caused by the negligence of the basis for determining progress payments. The breakdown Contractor or subcontractor or supplier at any tier, the shall be approved by the Contracting Officer and must be Contractor shall not be liable for the repair of any defect of acceptable to HUD. If the contract covers more than one material or design furnished by the PHA nor for the repair project, the Contractor shall furnish a separate of any damage that results from any defect in PHA breakdown for each. The values and quantities employed furnished material or design. in making up this breakdown are for determining the

(i)…