Preview
INDEX NO. 709373/2023
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/29/2023
EXHIBIT "D"
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Contract Number: ©-422-01
Cost Code: 02-02370
Sub-Contract Date: 7/15/2021
Prime Contract Date: 7/14/2021
STANDARD FORM OF SUBCONTRACT FOR A NEW YORK PROJECT
BY AND BETWEEN
MARCH ASSOCIATES CONSTRUCTION, INC.
AS GENERAL CONTRACTOR AND
NEW LEAF DEVELOPMENT, LLC
SUBCONTRACTOR
FOR
TRADE:
Substructure/Foundation/Gen. Improvment
PROJECT:
23-30 Borden Ave.- Queens, NY
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SCHEDULE OF EXHIBITS
EXHIBIT A - SCOPE OF WORK / PROJECT REQUIREMENTS (23 pages) DATED
(6/14/2021)
EXHIBIT B - CONSTRUCTION DOCUMENTS ( 28 pages)
EXHIBIT C - PROJECT SCHEDULE (1 pages) DATED (7/12/2021)
EXHIBIT D - SAFETY REQUIREMENTS/PROJECT SAFETY PROGRAM (13 pages)
EXHIBIT E - ACCOUNTING DOCUMENTS/LIEN WAIVER FORMS (12 pages)
EXHIBIT F - NY INSURANCE REQUIREMENTS (15 pages)
EXHIBIT F-2 - OWNER INSURANCE REQURIEMENTS (11 pages)
EXHIBIT G - MACI - COVID-19 GUIDELINES (I page)
EXHIBIT H - SUBCONTRACTOR SWORN STATEMENT (4pages)
EXHIBIT I - ICAP PACKAGE - SEE PROCORE
EXHIBIT J - CO-ED DIVISION OF RESPONSIBILITY - SEE PROCORE
EXHIBIT K - PHASING PLAN - SEE PROCORE
EXHIBIT L - LIRR REQUIREMENTS - SEE PROCORE
EXHIBIT M - GROUND WATER DATA - SEE PROCORE
EXHIBIT N - SITE SURVEY - SEE PROCORE
EXHIBIT O - CONTRACTOR QUALITY CONTROL PLAN - SEE PROCORE
EXHIBIT P - TEMPORARY STANDPIPE PLAN - SEE PROCORE
EXHIBIT Q - HOIST LOCATION - SEE PROCORE
EXHIBIT R - ACCESS AGREEMENT - SEE PROCORE
EXHIBIT S - RAWP - SEE PROCORE
EXHIBIT T - LOGISTICS PLAN - SEE PROCORE
EXHIBIT W - CRANE LOGISTICS - SEE PROCORE
EXHIBIT X - D.O.T PERMITS -- SEE PROCORE
EXHIBIT Y - ELEVATOR CONSULTANT PLANS - SEE PROCORE
EXHIBIT Z - SITE CONSULTANTS PLANS - SEE PROCORE
EXHIBIT AA - GOETECHNICAL REPORT - SEE PROCORE
EXHIBIT BB - SITE SAFETY PKAN - SEE PROCORE
EXHIBIT CC - WASTE CHARACTERIZATION REPORT - SEE PROCORE
EXHIBIT DD - SWPPP REPORT - SEE PROCORE
EXHIBIT EE - DETENTION TANK - SEE PROCORE
EXHIBIT FF - GROUND IMPROVEMENT INFOR - SEE PROCORE
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TABLE OF CONTENTS
ARTICLE | THE PROJECT
ARTICLE 2 SCOPE OF WORK
ARTICLE 3 CONTRACT PRICE..
ARTICLE 4 CONTRACT DOCUMENTS, CORRELATION AND INTENT
ARTICLE 5 ARCHITECT
ARTICLE 6 SUBCONTRACTOR’S RESPONSIBILITIES
ARTICLE 7 PROJECT SCHEDULE AND COMPLETION OF THE WORK 12
ARTICLE 8 INSPECTION, TESTING AND CORRECTION OF THE WORK 17
ARTICLE 9 CHANGES IN THE WORK AND OTHER REQUIREMENTS 18
ARTICLE 10 PAYMENTS 21
ARTICLE 11 SAFETY AND PROTECTION OF PERSONS AND PROPERTY 25
ARTICLE 12 INDEMNITY AND INSURANCE REQUIREMENTS... 28
ARTICLE 13 SHOP DRAWINGS AND SAMPLES 30
ARTICLE 14 SUBCONTRACTING AND ASSIGNMENTS 34
ARTICLE 15 DEFAULT AND TERMINATION 37
ARTICLE 16 WARRANTIES AND GUARANTEE 38
ARTICLE 17 OWNER’S RIGHT TO PERFORM WORK AND AWARD SEPARATE
CONTRACTS 39
ARTICLE 18 ADDITIONAL PROVISIONS .. 40
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CONTRACT
THIS CONTRACT (“Contract”), made and entered into as of July 1s 20 21
by and between March Associates Construction, Inc., (the “General Contractor” or “March”), and
NEW LEAF DEVELOPMENT, LLC , (the “Subcontractor’).
WITNESSETH, that the General Contractor and Subcontractor for the considerations
hereinafter set forth agree as follows:
ARTICLE 1
THE PROJECT
23-30 BORDEN AVENUE OWNER, LLC (“Owner”) intends to
Construct/Renovate a MULTI LEVEL WAREHOUSE project in accordance with
the Contract Documents (as hereinafter defined) (the “Project”), on a parcel located at
23-30 BORDEN AVENUE, QUEENS, NY (hereinafter the “Site”).
ARTICLE 2
SCOPE OF WORK
The General Contractor and the Subcontractor agree that the Subcontractor shall furnish
all labor, supervision, materials, scaffolding, ladders, tools, equipment, supplies, insurance,
permits and approvals for the
necessary prosecution and completion of the
Substructure/Foundation/Gen. Improvment Work (the “Work”) on the Project pursuant to the
Contract Documents (as defined below) and as set forth more fully in the Scope of Work dated
6/14/2021 ; annexed hereto at Exhibit A.
ARTICLE 3
CONTRACT PRICE
The General Contractor agrees to pay to the Subcontractor for the performance of the Work
the sum of , (the “Contract Price”), subject to the terms and conditions
stated herein.
ARTICLE 4
CONTRACT DOCUMENTS, CORRELATION AND INTENT
(a) The Contract Documents consist of the following:
(i) The Contract and all the Exhibits referenced herein, receipt of which is
hereby acknowledged by the Subcontractor, and which are made a part hereof;
(ii) The Drawings, Specifications and other documents prepared by the Owner,
Architect and/or other Project consultants identified herein (“Construction Documents”) identified
in Exhibit B hereto;
(iii) The Project Schedule, as defined herein;
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(iv) Changes in the Work, including Change Orders, Emergency Change Orders
and Field Directives, as defined herein, properly executed;
(v) Any Performance and Payment Bonds, as may be required hereunder; and
(vi) The Prime Contract between the General Contractor and the Owner.
(b) The intent of the Contract Documents is to include all items necessary for the proper
execution of the Work. The Contract Documents are complementary, and what is required by one
shall be binding as if required by all. Items omitted from the Contract Documents shall be included
within the scope of the Work if they are required by applicable law, regulation, or code, if they are
reasonably inferable from the intent of the Contract Documents or if they are necessary to produce
the intended results. The Subcontractor shall assume toward the General Contractor all obligations
and responsibilities which the General Contractor, under its Prime Contract with the Owner,
assumes toward the Owner and/or the Architect.
(c) When Work is indicated on the Drawings but is not called for in the other Contract
Documents, or is called for in the other Contract Documents but is not indicated on the Drawings,
and the nature of the Work is such that it should be performed by workers employed by this
Subcontractor, or if standard building practices in the locale of the Project would require such
Work to be performed by this Subcontractor, then such Work shall be deemed a part of the Work
covered by this Contract and shall be performed by this Subcontractor without additional
compensation.
(d) Notwithstanding anything in the Drawings or the Specifications to the contrary, it
is understood and agreed that the Contract Price is predicated on the complete installation of all
Work of the subject trade unless specifically excluded elsewhere herein. All Work is to be done in
a first-class workmanlike manner using new materials to the complete satisfaction of the General
Contractor, Owner and Architect. The Work includes any and all items normally required to
provide a complete, first-class job in every detail for maximum quality, serviceability and
appearance.
(e) Qualifications or exclusions contained in the Subcontractor’s bid or proposal for
the Work are not accepted or agreed to unless specifically incorporated into this Contract.
(f) The Subcontractor represents that it is familiar with the Project and has expertise in
the scope of this trade and the Work.
(g) Drawing references are for the Subcontractor’s convenience and shall in no way
limit the scope of the Work.
(h) Words used herein that have well known technical or trade meanings shall be
construed according to their customary meaning in the building industry in the metropolitan New
York/New Jersey area.
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@) The Subcontractor shall promptly report to the Owner and General Contractor any
error, omission, inconsistency or similar defect that may be apparent from the Subcontractor’s
review of the Contract Documents. The Subcontractor shall cooperate with the Owner and the
General Contractor in good faith to resolve such error, omission, inconsistency or defect in a
manner so as to avoid any increase in the Contract Price or the Contract Time. If any conflicts
or ambiguities exist in, between or among the Construction, the Contract Documents, and/or
existing conditions at the Project Site, the Subcontractor shall immediately upon discovery bring
such conflict or ambiguity to the attention of the General Contractor for resolution. It is
expressly understood and agreed that the Owner, in consultation with the General Contractor
and the Architect, shall be the interpreter of the Contract Documents and shall resolve any such
conflicts and ambiguities. In the event there are any such conflicts or ambiguities, then the more
stringent provision shall apply. In addition, in the event there are any such conflicts or
ambiguities which result in a choice between different means and methods to perform the Work
after the resolution of the conflict or ambiguity the Subcontractor shall be responsible to perform
the work without additional compensation for using the costlier means and methods. If the
Subcontractor performs any such work before the Owner and General Contractor have had a
reasonable time to respond, the Subcontractor shall solely bear the risk of performing such work
contrary to the resolution thereof by the Owner.
ARTICLE 5
ARCHITECT
The Owner has retained _ KSS ARCHITECT to act as the architect for
the Project. The Architect will not have control over or charge of, and will not be responsible for,
construction means, methods, techniques, sequences or procedures, or for safety precautions and
programs in connection with the Work, since these are solely the Subcontractor’s responsibility.
The Architect will not be responsible for the Subcontractor’s failure to carry out the Work in
accordance with the Contract Documents. The services and obligations of the Architect will be
provided in conformity with the standards of care and skill of its profession. The Architect will not
be responsible for the performance of the construction contract(s), work or products, or any
defects, deficiencies or effects resulting therefrom, of any contractor, subcontractor, manufacturer,
supplier, fabricator, consultant retained by the Owner, or any other third party (including anyone
working or acting on behalf of any of them). Interpretations and recommendations of the Architect
will be consistent with the intent of and reasonably inferable from the Contract Documents and
will be in writing or in the form of drawings. The Architect’s decision on matters relating to
aesthetic effect will be final if consistent with the intent expressed in the Contract Documents.
ARTICLE 6
SUBCONTRACTOR’S RESPONSIBILITIES
Section 6.1 Adherence to Contract Documents
The Subcontractor shall perform the Work in strict accordance with the Contract
Documents and as reasonably inferable therefrom.
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Section 6.2 Supervisio:
(a) The Subcontractor shall use its best skill and attention for the proper administration,
coordination, supervision and superintendence of the Work. The Subcontractor shall furnish a
competent representative who shall be at the Site during the performance of the Work to represent
the Subcontractor and receive notices, orders and instructions. The representative shall be fluent
in English. The Subcontractor shall also, when called upon by the Owner or General Contractor,
report the general progress of the Work at the Site or elsewhere, and shall cause a competent and
responsible representative to attend job meetings with the Owner or General Contractor. The
Subcontractor shall employ an appropriate number of full- time foremen, superintendents and
assistants, as necessary, who shall be in attendance on the Project during the progress of the Work.
The foremen, superintendents and assistants shall be subject to the Owner’s and General
Contractor’s reasonable approval and shall not be changed, except with the consent of the Owner
or General Contractor or in the event such individual ceases to be employed by the Subcontractor.
All personnel of the subcontractor and its sub- subcontractors working on the Project shall be
lawfully allowed to work in the United States.
(b) The Subcontractor shall provide the Owner, Lender, General Contractor and
Architect safe and proper access to the Work. Subcontractor shall comply with the Owner’s and
General Contractor’s instructions regarding access to the Site and storage of materials at the Site.
Section 6.3 Responsibility for Construction Means and Methods, Etc.
(a) The Subcontractor, its sub-subcontractors (as defined in Section 14.1 below) of all
tier and its suppliers shall be solely responsible for (a) construction means, methods and
techniques; (b) establishment of a site safety program that adheres to the Project Safety Program
(as defined in Section 11.1(a) herein) and is subject to the review and approval of General
Contractor; (c) all procedures and precautions necessary to comply with the Project Safety
Program, OSHA standards, and all applicable federal, state and local safety and health-related
codes, rules and regulations, and (d) carrying out the Work in accordance with the Contract
Documents.
(b) All hoisting and hoisting requirements are the Subcontractor’s responsibility.
Section 6.4 Labor
(a) The Subcontractor shall furnish and maintain an adequate staff and workforce of
skilled, competent, experienced, reliable and honest workers on the Project to carry out the
Subcontractor’s obligations hereunder in an efficient and timely manner until completion of the
Work and shall enforce discipline and order among Subcontractor’s employees and
Subcontractors. Subcontractor shall not employ on the Project any unfit person or anyone not
properly skilled or trained in the task assigned.
(b) To insure that the Work shall not be interrupted by labor disputes, the
Subcontractor shall employ on the Work only such labor as, to the satisfaction of the Owner and
General Contractor, will perform their services in harmony with all other contractors on the
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Project. Should the Subcontractor, in the opinion of Owner, fail to carry out this provision, the
General Contractor shall be at liberty, after three (3) days written notice to the Subcontractor, to
terminate the employment of the Subcontractor for cause. Materials manufactured and installed
and deliveries made shall be by workmen whose trade affiliations shall not cause strikes or work
stoppages on the Project.
(c) Subcontractor shall seek the General Contractor’s written consent prior to
undertaking work for any other party on the Project, which consent shall not be unreasonably
withheld. Subcontractor shall be prepared to commence its work as directed by General Contractor
provided that the Work of others has advanced sufficiently to permit such a start and shall be
capable of completing its Work in accordance with the Project Schedule.
Section 6.5 Equal Opportunity/ICAP/M/W/LBE Requirements -
(a) It is the policy of the Owner to actively and affirmatively promote and assist: (1)
equal employment opportunities for women and members of minority groups; and (2) the fair
participation of minority and women-owned business enterprises in all aspects of the development
and construction of the Project.
(b) Subcontractor and each of its Subcontractors shall comply with all federal, state or
local equal employment opportunity or affirmative action programs that are applicable to the
Project and/or instituted by the Owner or the General Contractor.
(c) Subcontractor agrees to use its best efforts to provide Minority and Women owned
Business Enterprises (“MWBEs”) with equal opportunities to participate in the development,
design and construction by performing work and providing goods and services in connection with
this Project.
(d) The Subcontractor shall not discriminate against any employee or applicant for
employment because of race, color, creed, sex, age, handicap/disability, marital status, sexual
orientation, affectational preference, national origin or ancestry and/or any other legally- protected
characteristic. Subcontractor shall use its best efforts to ensure that applicants are employed, and
that employees are treated during employment, without regard to their race, color, creed, sex, age,
handicap/disability, marital status, sexual orientation, affectational preference, national origin or
ancestry and/or any other legally-protected characteristic. Such action — shall include
Subcontractor’s best efforts with respect to the following: employment, job classification,
upgrading, promotion, demotion or transfer, recruitment or recruitment advertising, layoff or
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termination, rates of pay or other forms of compensation, and selection for and quality of training,
including apprenticeship.
(e) The Subcontractor shall comply with applicable provisions of New York State
Labor Law, including but not limited to Section 220, which requires that contractors must adhere
to the minimum hourly wage rate and the minimum benefits for laborers, journey persons and
mechanics employed in the performance of this contract on a trade-by-trade basis (in accordance
with Section 220.3 of this law). All parties acknowledge this is an open shop, non union, non
prevailing wage project.
(f) Subcontractor hereby acknowledges and agrees to comply with all terms of the
Equal Employment Opportunity, ICAP and MWBE Requirements, as set forth in Exhibit D
annexed hereto.
(g) Subcontractor shall comply, and shall require all Subcontractors to comply, with
the foregoing requirements of this Section 6.5.
Section 6.6 Permits and Legal Requirements
The Owner shall secure the building permit. The Subcontractor shall secure, maintain,
renew and pay for all other permits and governmental fees, licenses and inspections necessary for
the proper execution and completion of the Work called for under this Contract. The Subcontractor
further agrees that all Work shall be performed in accordance with, and all materials furnished by
it under this Contract shall comply strictly with, all applicable laws, rules, regulations, ordinances,
codes and orders of all federal, state and local entities, departments or bureaus having jurisdiction
over the Work hereunder (“Legal Requirements”) without extra charge or expense. The
Subcontractor shall be liable for any costs, damages, losses and expenses arising out of the
violation of any such Legal Requirements by the Subcontractor, any Sub- Subcontractor or anyone
for whom the Subcontractor is responsible. The Subcontractor shall indemnify, defend and save
harmless the General Contractor, Owner, Architect and agents and employees of any of them from
and against any such costs, damages, losses and expenses, including reasonable attorneys’ fees
and disbursements, attributable to any such violation or noncompliance by Subcontractor or any
of its sub-subcontractor(s) and/or vendor(s), as well as any delay in the completion of the Work.
The Subcontractor shall cooperate with the Owner and General Contractor by, among other things,
appearing at any court, administrative or legal proceedings or hearings held in connection with any
alleged violations of such Legal Requirements.
Section 6.7 Cutting, Fitting, Patching, Etc.
(a) The Subcontractor shall perform all cutting, fitting, patching and protection of its
Work that may be required to make its several parts come together properly and to fit it to receive
or be received by the work of other trades shown upon or reasonably implied by the Contract
Documents. The requirement to cut, fit or patch shall be determined by Subcontractor, provided
however, that structural elements of the Project shall not be cut, patched or otherwise altered or
repaired without prior authorization of the Owner, General Contractor and Architect.
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(b) All temporary openings required for subsequent installation of Subcontractor’s
Work, including but not limited to materials and equipment, must be brought to the attention of
the General Contractor prior to completion of the pertinent work in the area of opening if needed.
Failure to request access will result in the Subcontractor assuming all costs involved in the
subsequent movement of the equipment, and the creation and correction of the openings and
related Work therefore.
(c) It may be necessary for the Subcontractor to leave openings in its Work or omit
portions of Work temporarily in order that other trades can perform their work. It is understood
that the Work of filling in openings or completing such undone portions of the Work may be
require to be performed at different times and intervals including time and intervals that occur after
the Subcontractor has completed its primary Work. All of the foregoing shall be done within the
Contract Price.
Section 6.8 Patents and Royalties
The Subcontractor shall pay all royalties and license fees associated with the Work. The
Subcontractor shall defend suits or claims for infringement of patent rights and shall hold the
Owner, General Contractor and Architect harmless from costs, damages, losses or expenses,
including reasonable attorneys’ fees, on account thereof, but shall not be responsible for such
defense or loss when a particular design, process or products of a particular manufacturer or
manufacturers is required by the Contract Documents. However, if the Subcontractor has reason
to believe that the required design, process or product is an infringement of a patent or other
intellectual property right, the Subcontractor shall be responsible for such loss unless such
information is promptly furnished to the Owner, General Contractor and Architect.
Section 6.9 Taxes
The Subcontractor agrees to pay and hereby assumes full and exclusive liability for the
payment of any and all contributions or taxes imposed by the laws of the United States of America
or by the laws of any state, city or municipality and which are measured by the wages, salaries, or
other remuneration paid to persons employed by the Subcontractor or its Sub- Subcontractors on
the Work or for materials and equipment furnished. If requested by the General Contractor, the
Subcontractor shall furnish the General Contractor such payroll information or employment
records as may be necessary to enable the General Contractor to comply with any law imposing
such contributions or taxes, and the Subcontractor agrees to reimburse the General Contractor for
the entire amount of contributions, taxes or penalties that the General Contractor may be required
to pay because of the failure of the Subcontractor to furnish such information or records, or because
of the failure of the Subcontractor to pay such contributions or taxes. The Contract Price includes,
and the Subcontractor shall be liable for, the payment of, all sales, use or other taxes of whatever
nature levied or assessed against the General Contractor or the Subcontractor arising out of the
Work and the furnishing or installing by the Subcontractor hereunder of any kind of materials,
supplies or equipment.
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Section 6.10 Surety Bonds
As a condition of this Contract, General Contractor may require the Subcontractor to
furnish, on demand, a performance bond and a separate payment bond, which payment bond shall
provide a direct right of action against the surety by a claimant. Each such bond shall name the
General Contractor, Owner and any Lender of the Owner as co-obligees, each with the right to sue
on the bonds on its own behalf rather than as co-obligees. Each such bond shall be in a penal sum
equal to 100% of the Contract Price, shall be in form and substance satisfactory to the General
Contractor, Owner and any Lender and shall be underwritten by a surety company authorized to
do and doing business in the state the project is located, and having a “Best” rating of A, or better.
Subcontractor shall furnish such bonds fifteen (15) days prior to commencement of the Work
hereunder, or after award of contract, whichever comes first. Cost of bond will be a change order
to subcontractor.
Section 6.11 Temporary Facilities and Power
(a) The Subcontractor shall place and relocate its field offices and shanties when and
where directed by the Owner and/or General Contractor and shall provide all necessary facilities
for its workers. It is understood that the Subcontractor is responsible at its sole cost and expense
for the acquisition, maintenance and subsequent removal of all utility, sprinkler and telephone
services required for its field offices and shanties. Each structure (whether storage shanty or
otherwise) Subcontractor maintains must be of fire-resistant construction if placed inside the
Project and must contain an appropriate number of fire extinguishers as required by applicable law
and good building practices.
Section 6.12 Cleaning and Rubbish Removal
The Subcontractor shall clear all rubbish created by its operations on a daily basis and
placed in a container provided by the Owner and/or General Contractor, as directed by the General
Contractor’s superintendent. If Owner and/or General Contractor uncovers or learns of
Subcontractor’s failure to clear and collect rubbish created by its operations, Owner and/or General
Contractor may do so upon notice to the Subcontractor and all cost and expense of performing
such Work shall be charged to the Subcontractor’s account. In the event of a dispute between the
Subcontractor and other contractors on the Site as to responsibility for cleaning up as required
under this Section, General Contractor may clean-up and charge the cost thereof to the contractors
responsible therefor which shall in no way be construed as relieving Subcontractor of its
obligations under this Contract.
Section 6.13 Substitutions
(a) The products, materials and equipment of manufacturers referred to in the
Construction Documents are intended to establish the standard of quality and design required by
Architect. Anything contained in the Construction Documents to the contrary notwithstanding,
materials of manufacturers other than those specified may be used only if accepted by General
Contractor and Owner as provided in this Article 6.
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(b) Owner and General Contractor, in consultation with Architect, shall be the judge of
equivalency of proposed substitute materials. Architect shall make written recommendations of
acceptance or rejection of substitute products, materials or equipment to Owner. Owner shall then
authorize Architect to issue to Subcontractor written approval or rejection of the substitution.
Owner, in its sole discretion, may authorize rejection of a proposed substitution notwithstanding
the fact that Architect may have judged it equivalent and recommended acceptance of the same.
(c) When two or more products are specified in the Construction Documents for an
item of Work, the Subcontractor shall use the product which is of greater quality and/or that
selected by the Owner and/or Architect. When only one product is specified in the Construction
Documents for an item of Work and the term “or equal” is used in connection with such product,
Subcontractor may offer a substitution by submitting a written application to General Contractor,
Architect and Owner, in sufficient time (taking into account the progress of the Work, the period
of delivery of the goods concerned and adequate time for review), setting forth and fully
identifying (i) the proposed substitute, together with substantiating data, samples, brochures and
other supporting documentation of the substitute proposed, including, without limitation, evidence
that the proposed substitution (w) is equal in quality and serviceability to the specified item,
(x) will not entail changes in detail, schedule and construction ofrelated Work,
(d) conforms with the design of the Project and its artistic intent, and (z) will not result
in an increase in the Contract Price, as the case may be, or alternatively, will result in a Cost change
as indicated in the application, and (ii) the changes in other parts of the Work required by reason
of the proposed substitute, and the cost consequences associated therewith.
(e) When only one product is specified in the Construction Documents for an item of
Work and the term “or equal” is not used in connection with such product, Owner and/or General
Contractor, in its sole and absolute discretion may authorize the rejection of any substitution
proposed by Subcontractor. Notwithstanding the foregoing, if such specified product shall become
unavailable for a material period of time and Owner and/or General Contractor receives reasonably
satisfactory proof from Subcontractor that the same shall be unavailable for reasons other than the
failure of Subcontractor or a Sub-Subcontractor to order such product in a timely manner,
consistent with the Contract Documents and the scheduling requirements for the Work, then, in
such event, if Owner shall consent to such substitution, any increase in cost incurred in connection
with the use of such substitution shall be confirmed by a Change Order.
(f) Subcontractor shall support any request for a substitution with sufficient evidence
to permit Architect to make a fair and equitable recommendation to Owner on the merits of the
proposal. Any item by a manufacturer other than those cited in the Construction Documents, or of
brand name, or model number or size or generic species other than those cited in the Construction
Documents, shall be considered a substitution.
(g) Acceptance of substitutions shall not relieve Subcontractor from responsibility for
compliance with all of the requirements of the Contract Documents. If changes in other parts of
the Work are required by reason of approved substitutions, the costs of any such changes shall
result in the issuance of a Change Order if approved by Owner under the Contract Documents.
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(h) In no event shall the Contract Time be extended, nor shall the Contract Price be
increased, by any circumstance resulting from a proposed substitution, without the issuance of a
Change Order approved by General Contractor and Owner and set forth herein.
Section 6.14 Site Conditions
(a) By executing this Contract, the Subcontractor represents that it (i) has inspected the
Site, (ii) has satisfied itselfas to the condition of the Site including, but not limited to, all structural,
surface and subsurface conditions, (iii) has familiarized itself with the Site and the local conditions
under which the Work is to be performed, (iv) has correlated its observations with the requirements
of the Contract Documents, (v) understands that the Work may be done in a congested area, and
(vi) has calculated its price and time schedule accordingly.
(b) Material deliveries are to be promptly coordinated with Owner and/or General
Contractor so as not to interfere with neighboring operations at the Project. Subcontractor shall
obtain Owner’s and General Contractor’s approval of any proposed location of materials to be
stored on Site prior to delivery of such materials on Site, as well as proposed methods of protecting
and safeguarding such materials until installation. The Subcontractor shall confine operations at
the Project to areas permitted by applicable Legal Requirements, ordinances, permits and the
Contract Documents and shall not unreasonably encumber the Site with any materials or
equipment. The Subcontractor shall coordinate all of the Subcontractor’s operations with and
secure approval from the Owner and General Contractor before using any portion of the Site.
(c) If hazardous substances of a type of which an employer is required by law to notify
its employees are being used on the site by the General Contractor, a subcontractor or anyone
directly or indirectly employed by them (other than the Subcontractor), the General Contractor
shall, prior to harmful exposure of the Subcontractor’s employees to such substance, give written
notice of the chemical composition thereof to the Subcontractor in sufficient detail and time to
permit the Subcontractor’s compliance with such laws.
(d) The Subcontractor and Sub-Subcontractors shall have no claims for such surface or
subsurface conditions encountered. Notwithstanding the foregoing, should concealed conditions
be (i) at variance with the conditions indicated in the reports and information set forth above, or
(ii) be of an unusual nature, differing materially from those ordinarily encountered and generally
recognized as inherent in the Work and not otherwise indicated in the reports and information set
forth above, the Contract Price and the time within which to perform the Work, solely to the extent
granted by the Owner to the General Contractor, may be amended to reflect the actual cost incurred
and additional time required by Subcontractor. The Subcontractor and Sub-Subcontractors shall
exercise special care in executing Work in proximity of known subsurface or concealed utilities,
improvements and easements.
Section 6.15 Reports, Schedules, Ete.
(a) The Subcontractor shall provide to the General Contractor, within ten (10) days of
execution of this Contract, a proposed schedule for the submission of shop drawings (with
appropriate cross references to applicable sections of the specifications) and a proposed schedule
10
2863857.2 09846-86178
F (suocontactor (Contractor)
EN INDEX NO. 709373/2023
NYSCEF DOC. N 17 RECEIVED NYSCEF: 11/29/2023
of deliveries of materials to the Project. Subcontractor shall periodically update the status of the
progress of such shop drawings and material deliveries, as well as within two (2) days of any
request therefor by the Owner or General Contractor.
(b) The Subcontractor shall, upon the commencement of the Work each day, provide a
written report (in a form approved by the General Contractor) to the General Contractor stating the
number of workers at the Site, the description of Work to be performed that day, the area(s) of the
Site at which Work is to be performed that day and the equipment on the Site.
(c) The Subcontractor shall be responsible for the preparation, and cost thereof, of any
affidavit or instrument or supporting data regarding the Work to be performed hereunder and
which is required for the issuance of Temporary or Permanent Certificate of Occupancy or for
compliance with any requirements of any governmental authority having jurisdiction.
(d) It shall be the duty of the Subcontractor to provide the Owner and the General
Contractor, without charge and with every Application for Payment, a verified statement in a form
satisfactory to the Owner and General Contractor, certifying the amounts then due and owing for
labor and materials furnished under the terms of this Contract and setting forth therein the Sub-
Subcontractors or suppliers who remain unpaid and the amounts due to each.
Section 6.16 Coordination with Other Trades
(a) Subcontractor shall coordinate its Work with the work of all other contractors for
the Project. The Subcontractor shall coordinate its Work with the work of all other contractors in
such manner as the General Contractor shall direct. The Subcontractor shall afford other
contractors reasonable opportunity for the installation, execution and storage of their respective
Work and materials. Subcontractor shall attend coordination meetings as scheduled by the General
Contractor. Subcontractor shall perform all preparation of its Work required in order to receive the
work of other trades. Subcontractor shall advise other contractors of any preparation of its work
required in order to receive the work of other trades. Subcontractor shall advise other contractors
of any preparation in their work required for its Work and shall provide those contractors with
location plans and items to be built-in to their work in a timely manner.
Preview
INDEX NO. 709373/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/29/2023 EXHIBIT "D" WV INDEX NO. 709373/2023 2 NYSCEF DOC. N 17 RECEIVED NYSCEF: 11/29/2023 Contract Number: ©-422-01 Cost Code: 02-02370 Sub-Contract Date: 7/15/2021 Prime Contract Date: 7/14/2021 STANDARD FORM OF SUBCONTRACT FOR A NEW YORK PROJECT BY AND BETWEEN MARCH ASSOCIATES CONSTRUCTION, INC. AS GENERAL CONTRACTOR AND NEW LEAF DEVELOPMENT, LLC SUBCONTRACTOR FOR TRADE: Substructure/Foundation/Gen. Improvment PROJECT: 23-30 Borden Ave.- Queens, NY 2863857.2 109846-86178 F (suocontactor (Contractor) Fy & NSa2fd M CLE Koc} WV INDEX NO. 709373/2023 NYSCEF Doc. NO. 17 RECEIVED NYSCEF 11/29/2023 SCHEDULE OF EXHIBITS EXHIBIT A - SCOPE OF WORK / PROJECT REQUIREMENTS (23 pages) DATED (6/14/2021) EXHIBIT B - CONSTRUCTION DOCUMENTS ( 28 pages) EXHIBIT C - PROJECT SCHEDULE (1 pages) DATED (7/12/2021) EXHIBIT D - SAFETY REQUIREMENTS/PROJECT SAFETY PROGRAM (13 pages) EXHIBIT E - ACCOUNTING DOCUMENTS/LIEN WAIVER FORMS (12 pages) EXHIBIT F - NY INSURANCE REQUIREMENTS (15 pages) EXHIBIT F-2 - OWNER INSURANCE REQURIEMENTS (11 pages) EXHIBIT G - MACI - COVID-19 GUIDELINES (I page) EXHIBIT H - SUBCONTRACTOR SWORN STATEMENT (4pages) EXHIBIT I - ICAP PACKAGE - SEE PROCORE EXHIBIT J - CO-ED DIVISION OF RESPONSIBILITY - SEE PROCORE EXHIBIT K - PHASING PLAN - SEE PROCORE EXHIBIT L - LIRR REQUIREMENTS - SEE PROCORE EXHIBIT M - GROUND WATER DATA - SEE PROCORE EXHIBIT N - SITE SURVEY - SEE PROCORE EXHIBIT O - CONTRACTOR QUALITY CONTROL PLAN - SEE PROCORE EXHIBIT P - TEMPORARY STANDPIPE PLAN - SEE PROCORE EXHIBIT Q - HOIST LOCATION - SEE PROCORE EXHIBIT R - ACCESS AGREEMENT - SEE PROCORE EXHIBIT S - RAWP - SEE PROCORE EXHIBIT T - LOGISTICS PLAN - SEE PROCORE EXHIBIT W - CRANE LOGISTICS - SEE PROCORE EXHIBIT X - D.O.T PERMITS -- SEE PROCORE EXHIBIT Y - ELEVATOR CONSULTANT PLANS - SEE PROCORE EXHIBIT Z - SITE CONSULTANTS PLANS - SEE PROCORE EXHIBIT AA - GOETECHNICAL REPORT - SEE PROCORE EXHIBIT BB - SITE SAFETY PKAN - SEE PROCORE EXHIBIT CC - WASTE CHARACTERIZATION REPORT - SEE PROCORE EXHIBIT DD - SWPPP REPORT - SEE PROCORE EXHIBIT EE - DETENTION TANK - SEE PROCORE EXHIBIT FF - GROUND IMPROVEMENT INFOR - SEE PROCORE 2863857.2 09846-86178 a (Subcontractor) (Contractor) Fy & NS.2f8 M CLE Koc} WV INDEX NO. 709373/2023 NYSCEF Doc. NO. 17 RECEIVED NYSCEF: 11/29/2023 TABLE OF CONTENTS ARTICLE | THE PROJECT ARTICLE 2 SCOPE OF WORK ARTICLE 3 CONTRACT PRICE.. ARTICLE 4 CONTRACT DOCUMENTS, CORRELATION AND INTENT ARTICLE 5 ARCHITECT ARTICLE 6 SUBCONTRACTOR’S RESPONSIBILITIES ARTICLE 7 PROJECT SCHEDULE AND COMPLETION OF THE WORK 12 ARTICLE 8 INSPECTION, TESTING AND CORRECTION OF THE WORK 17 ARTICLE 9 CHANGES IN THE WORK AND OTHER REQUIREMENTS 18 ARTICLE 10 PAYMENTS 21 ARTICLE 11 SAFETY AND PROTECTION OF PERSONS AND PROPERTY 25 ARTICLE 12 INDEMNITY AND INSURANCE REQUIREMENTS... 28 ARTICLE 13 SHOP DRAWINGS AND SAMPLES 30 ARTICLE 14 SUBCONTRACTING AND ASSIGNMENTS 34 ARTICLE 15 DEFAULT AND TERMINATION 37 ARTICLE 16 WARRANTIES AND GUARANTEE 38 ARTICLE 17 OWNER’S RIGHT TO PERFORM WORK AND AWARD SEPARATE CONTRACTS 39 ARTICLE 18 ADDITIONAL PROVISIONS .. 40 2863857.2 109846-86178 (et (Subcontractor) (@ (Contractor) WV INDEX NO. 709373/2023 2 NYSCEF DOC. N 17 RECEIVED NYSCEF: 11/29/2023 CONTRACT THIS CONTRACT (“Contract”), made and entered into as of July 1s 20 21 by and between March Associates Construction, Inc., (the “General Contractor” or “March”), and NEW LEAF DEVELOPMENT, LLC , (the “Subcontractor’). WITNESSETH, that the General Contractor and Subcontractor for the considerations hereinafter set forth agree as follows: ARTICLE 1 THE PROJECT 23-30 BORDEN AVENUE OWNER, LLC (“Owner”) intends to Construct/Renovate a MULTI LEVEL WAREHOUSE project in accordance with the Contract Documents (as hereinafter defined) (the “Project”), on a parcel located at 23-30 BORDEN AVENUE, QUEENS, NY (hereinafter the “Site”). ARTICLE 2 SCOPE OF WORK The General Contractor and the Subcontractor agree that the Subcontractor shall furnish all labor, supervision, materials, scaffolding, ladders, tools, equipment, supplies, insurance, permits and approvals for the necessary prosecution and completion of the Substructure/Foundation/Gen. Improvment Work (the “Work”) on the Project pursuant to the Contract Documents (as defined below) and as set forth more fully in the Scope of Work dated 6/14/2021 ; annexed hereto at Exhibit A. ARTICLE 3 CONTRACT PRICE The General Contractor agrees to pay to the Subcontractor for the performance of the Work the sum of , (the “Contract Price”), subject to the terms and conditions stated herein. ARTICLE 4 CONTRACT DOCUMENTS, CORRELATION AND INTENT (a) The Contract Documents consist of the following: (i) The Contract and all the Exhibits referenced herein, receipt of which is hereby acknowledged by the Subcontractor, and which are made a part hereof; (ii) The Drawings, Specifications and other documents prepared by the Owner, Architect and/or other Project consultants identified herein (“Construction Documents”) identified in Exhibit B hereto; (iii) The Project Schedule, as defined herein; 2863857.2 09846-86178 a (Subcontractor) (Contractor) INDEX NO. 709373/2023 RECEIVED NYSCEF: 11/29/2023 (iv) Changes in the Work, including Change Orders, Emergency Change Orders and Field Directives, as defined herein, properly executed; (v) Any Performance and Payment Bonds, as may be required hereunder; and (vi) The Prime Contract between the General Contractor and the Owner. (b) The intent of the Contract Documents is to include all items necessary for the proper execution of the Work. The Contract Documents are complementary, and what is required by one shall be binding as if required by all. Items omitted from the Contract Documents shall be included within the scope of the Work if they are required by applicable law, regulation, or code, if they are reasonably inferable from the intent of the Contract Documents or if they are necessary to produce the intended results. The Subcontractor shall assume toward the General Contractor all obligations and responsibilities which the General Contractor, under its Prime Contract with the Owner, assumes toward the Owner and/or the Architect. (c) When Work is indicated on the Drawings but is not called for in the other Contract Documents, or is called for in the other Contract Documents but is not indicated on the Drawings, and the nature of the Work is such that it should be performed by workers employed by this Subcontractor, or if standard building practices in the locale of the Project would require such Work to be performed by this Subcontractor, then such Work shall be deemed a part of the Work covered by this Contract and shall be performed by this Subcontractor without additional compensation. (d) Notwithstanding anything in the Drawings or the Specifications to the contrary, it is understood and agreed that the Contract Price is predicated on the complete installation of all Work of the subject trade unless specifically excluded elsewhere herein. All Work is to be done in a first-class workmanlike manner using new materials to the complete satisfaction of the General Contractor, Owner and Architect. The Work includes any and all items normally required to provide a complete, first-class job in every detail for maximum quality, serviceability and appearance. (e) Qualifications or exclusions contained in the Subcontractor’s bid or proposal for the Work are not accepted or agreed to unless specifically incorporated into this Contract. (f) The Subcontractor represents that it is familiar with the Project and has expertise in the scope of this trade and the Work. (g) Drawing references are for the Subcontractor’s convenience and shall in no way limit the scope of the Work. (h) Words used herein that have well known technical or trade meanings shall be construed according to their customary meaning in the building industry in the metropolitan New York/New Jersey area. 2863857.2 09846-86178 F (suocontactor (Contractor) EN INDEX NO. 709373/2023 NYSCEF DOC. N 17 RECEIVED NYSCEF: 11/29/2023 @) The Subcontractor shall promptly report to the Owner and General Contractor any error, omission, inconsistency or similar defect that may be apparent from the Subcontractor’s review of the Contract Documents. The Subcontractor shall cooperate with the Owner and the General Contractor in good faith to resolve such error, omission, inconsistency or defect in a manner so as to avoid any increase in the Contract Price or the Contract Time. If any conflicts or ambiguities exist in, between or among the Construction, the Contract Documents, and/or existing conditions at the Project Site, the Subcontractor shall immediately upon discovery bring such conflict or ambiguity to the attention of the General Contractor for resolution. It is expressly understood and agreed that the Owner, in consultation with the General Contractor and the Architect, shall be the interpreter of the Contract Documents and shall resolve any such conflicts and ambiguities. In the event there are any such conflicts or ambiguities, then the more stringent provision shall apply. In addition, in the event there are any such conflicts or ambiguities which result in a choice between different means and methods to perform the Work after the resolution of the conflict or ambiguity the Subcontractor shall be responsible to perform the work without additional compensation for using the costlier means and methods. If the Subcontractor performs any such work before the Owner and General Contractor have had a reasonable time to respond, the Subcontractor shall solely bear the risk of performing such work contrary to the resolution thereof by the Owner. ARTICLE 5 ARCHITECT The Owner has retained _ KSS ARCHITECT to act as the architect for the Project. The Architect will not have control over or charge of, and will not be responsible for, construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Subcontractor’s responsibility. The Architect will not be responsible for the Subcontractor’s failure to carry out the Work in accordance with the Contract Documents. The services and obligations of the Architect will be provided in conformity with the standards of care and skill of its profession. The Architect will not be responsible for the performance of the construction contract(s), work or products, or any defects, deficiencies or effects resulting therefrom, of any contractor, subcontractor, manufacturer, supplier, fabricator, consultant retained by the Owner, or any other third party (including anyone working or acting on behalf of any of them). Interpretations and recommendations of the Architect will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of drawings. The Architect’s decision on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents. ARTICLE 6 SUBCONTRACTOR’S RESPONSIBILITIES Section 6.1 Adherence to Contract Documents The Subcontractor shall perform the Work in strict accordance with the Contract Documents and as reasonably inferable therefrom. 2863857.2 09846-86178 F (suocontactor (Contractor) INDEX NO. 709373/2023 RECEIVED NYSCEF: 11/29/2023 Section 6.2 Supervisio: (a) The Subcontractor shall use its best skill and attention for the proper administration, coordination, supervision and superintendence of the Work. The Subcontractor shall furnish a competent representative who shall be at the Site during the performance of the Work to represent the Subcontractor and receive notices, orders and instructions. The representative shall be fluent in English. The Subcontractor shall also, when called upon by the Owner or General Contractor, report the general progress of the Work at the Site or elsewhere, and shall cause a competent and responsible representative to attend job meetings with the Owner or General Contractor. The Subcontractor shall employ an appropriate number of full- time foremen, superintendents and assistants, as necessary, who shall be in attendance on the Project during the progress of the Work. The foremen, superintendents and assistants shall be subject to the Owner’s and General Contractor’s reasonable approval and shall not be changed, except with the consent of the Owner or General Contractor or in the event such individual ceases to be employed by the Subcontractor. All personnel of the subcontractor and its sub- subcontractors working on the Project shall be lawfully allowed to work in the United States. (b) The Subcontractor shall provide the Owner, Lender, General Contractor and Architect safe and proper access to the Work. Subcontractor shall comply with the Owner’s and General Contractor’s instructions regarding access to the Site and storage of materials at the Site. Section 6.3 Responsibility for Construction Means and Methods, Etc. (a) The Subcontractor, its sub-subcontractors (as defined in Section 14.1 below) of all tier and its suppliers shall be solely responsible for (a) construction means, methods and techniques; (b) establishment of a site safety program that adheres to the Project Safety Program (as defined in Section 11.1(a) herein) and is subject to the review and approval of General Contractor; (c) all procedures and precautions necessary to comply with the Project Safety Program, OSHA standards, and all applicable federal, state and local safety and health-related codes, rules and regulations, and (d) carrying out the Work in accordance with the Contract Documents. (b) All hoisting and hoisting requirements are the Subcontractor’s responsibility. Section 6.4 Labor (a) The Subcontractor shall furnish and maintain an adequate staff and workforce of skilled, competent, experienced, reliable and honest workers on the Project to carry out the Subcontractor’s obligations hereunder in an efficient and timely manner until completion of the Work and shall enforce discipline and order among Subcontractor’s employees and Subcontractors. Subcontractor shall not employ on the Project any unfit person or anyone not properly skilled or trained in the task assigned. (b) To insure that the Work shall not be interrupted by labor disputes, the Subcontractor shall employ on the Work only such labor as, to the satisfaction of the Owner and General Contractor, will perform their services in harmony with all other contractors on the 4 2863857.2 09846-86178 F (suocontactor (Contractor) INDEX NO. 709373/2023 RECEIVED NYSCEF: 11/29/2023 Project. Should the Subcontractor, in the opinion of Owner, fail to carry out this provision, the General Contractor shall be at liberty, after three (3) days written notice to the Subcontractor, to terminate the employment of the Subcontractor for cause. Materials manufactured and installed and deliveries made shall be by workmen whose trade affiliations shall not cause strikes or work stoppages on the Project. (c) Subcontractor shall seek the General Contractor’s written consent prior to undertaking work for any other party on the Project, which consent shall not be unreasonably withheld. Subcontractor shall be prepared to commence its work as directed by General Contractor provided that the Work of others has advanced sufficiently to permit such a start and shall be capable of completing its Work in accordance with the Project Schedule. Section 6.5 Equal Opportunity/ICAP/M/W/LBE Requirements - (a) It is the policy of the Owner to actively and affirmatively promote and assist: (1) equal employment opportunities for women and members of minority groups; and (2) the fair participation of minority and women-owned business enterprises in all aspects of the development and construction of the Project. (b) Subcontractor and each of its Subcontractors shall comply with all federal, state or local equal employment opportunity or affirmative action programs that are applicable to the Project and/or instituted by the Owner or the General Contractor. (c) Subcontractor agrees to use its best efforts to provide Minority and Women owned Business Enterprises (“MWBEs”) with equal opportunities to participate in the development, design and construction by performing work and providing goods and services in connection with this Project. (d) The Subcontractor shall not discriminate against any employee or applicant for employment because of race, color, creed, sex, age, handicap/disability, marital status, sexual orientation, affectational preference, national origin or ancestry and/or any other legally- protected characteristic. Subcontractor shall use its best efforts to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, sex, age, handicap/disability, marital status, sexual orientation, affectational preference, national origin or ancestry and/or any other legally-protected characteristic. Such action — shall include Subcontractor’s best efforts with respect to the following: employment, job classification, upgrading, promotion, demotion or transfer, recruitment or recruitment advertising, layoff or 2863857.2 09846-86178 F (suocontactor (Contractor) INDEX NO. 709373/2023 RECEIVED NYSCEF: 11/29/2023 termination, rates of pay or other forms of compensation, and selection for and quality of training, including apprenticeship. (e) The Subcontractor shall comply with applicable provisions of New York State Labor Law, including but not limited to Section 220, which requires that contractors must adhere to the minimum hourly wage rate and the minimum benefits for laborers, journey persons and mechanics employed in the performance of this contract on a trade-by-trade basis (in accordance with Section 220.3 of this law). All parties acknowledge this is an open shop, non union, non prevailing wage project. (f) Subcontractor hereby acknowledges and agrees to comply with all terms of the Equal Employment Opportunity, ICAP and MWBE Requirements, as set forth in Exhibit D annexed hereto. (g) Subcontractor shall comply, and shall require all Subcontractors to comply, with the foregoing requirements of this Section 6.5. Section 6.6 Permits and Legal Requirements The Owner shall secure the building permit. The Subcontractor shall secure, maintain, renew and pay for all other permits and governmental fees, licenses and inspections necessary for the proper execution and completion of the Work called for under this Contract. The Subcontractor further agrees that all Work shall be performed in accordance with, and all materials furnished by it under this Contract shall comply strictly with, all applicable laws, rules, regulations, ordinances, codes and orders of all federal, state and local entities, departments or bureaus having jurisdiction over the Work hereunder (“Legal Requirements”) without extra charge or expense. The Subcontractor shall be liable for any costs, damages, losses and expenses arising out of the violation of any such Legal Requirements by the Subcontractor, any Sub- Subcontractor or anyone for whom the Subcontractor is responsible. The Subcontractor shall indemnify, defend and save harmless the General Contractor, Owner, Architect and agents and employees of any of them from and against any such costs, damages, losses and expenses, including reasonable attorneys’ fees and disbursements, attributable to any such violation or noncompliance by Subcontractor or any of its sub-subcontractor(s) and/or vendor(s), as well as any delay in the completion of the Work. The Subcontractor shall cooperate with the Owner and General Contractor by, among other things, appearing at any court, administrative or legal proceedings or hearings held in connection with any alleged violations of such Legal Requirements. Section 6.7 Cutting, Fitting, Patching, Etc. (a) The Subcontractor shall perform all cutting, fitting, patching and protection of its Work that may be required to make its several parts come together properly and to fit it to receive or be received by the work of other trades shown upon or reasonably implied by the Contract Documents. The requirement to cut, fit or patch shall be determined by Subcontractor, provided however, that structural elements of the Project shall not be cut, patched or otherwise altered or repaired without prior authorization of the Owner, General Contractor and Architect. 2863857.2 09846-86178 F (suocontactor (Contractor) EN INDEX NO. 709373/2023 NYSCEF DOC. N 17 RECEIVED NYSCEF: 11/29/2023 (b) All temporary openings required for subsequent installation of Subcontractor’s Work, including but not limited to materials and equipment, must be brought to the attention of the General Contractor prior to completion of the pertinent work in the area of opening if needed. Failure to request access will result in the Subcontractor assuming all costs involved in the subsequent movement of the equipment, and the creation and correction of the openings and related Work therefore. (c) It may be necessary for the Subcontractor to leave openings in its Work or omit portions of Work temporarily in order that other trades can perform their work. It is understood that the Work of filling in openings or completing such undone portions of the Work may be require to be performed at different times and intervals including time and intervals that occur after the Subcontractor has completed its primary Work. All of the foregoing shall be done within the Contract Price. Section 6.8 Patents and Royalties The Subcontractor shall pay all royalties and license fees associated with the Work. The Subcontractor shall defend suits or claims for infringement of patent rights and shall hold the Owner, General Contractor and Architect harmless from costs, damages, losses or expenses, including reasonable attorneys’ fees, on account thereof, but shall not be responsible for such defense or loss when a particular design, process or products of a particular manufacturer or manufacturers is required by the Contract Documents. However, if the Subcontractor has reason to believe that the required design, process or product is an infringement of a patent or other intellectual property right, the Subcontractor shall be responsible for such loss unless such information is promptly furnished to the Owner, General Contractor and Architect. Section 6.9 Taxes The Subcontractor agrees to pay and hereby assumes full and exclusive liability for the payment of any and all contributions or taxes imposed by the laws of the United States of America or by the laws of any state, city or municipality and which are measured by the wages, salaries, or other remuneration paid to persons employed by the Subcontractor or its Sub- Subcontractors on the Work or for materials and equipment furnished. If requested by the General Contractor, the Subcontractor shall furnish the General Contractor such payroll information or employment records as may be necessary to enable the General Contractor to comply with any law imposing such contributions or taxes, and the Subcontractor agrees to reimburse the General Contractor for the entire amount of contributions, taxes or penalties that the General Contractor may be required to pay because of the failure of the Subcontractor to furnish such information or records, or because of the failure of the Subcontractor to pay such contributions or taxes. The Contract Price includes, and the Subcontractor shall be liable for, the payment of, all sales, use or other taxes of whatever nature levied or assessed against the General Contractor or the Subcontractor arising out of the Work and the furnishing or installing by the Subcontractor hereunder of any kind of materials, supplies or equipment. 2863857.2 09846-86178 F (suocontactor (Contractor) INDEX NO. 709373/2023 RECEIVED NYSCEF: 11/29/2023 Section 6.10 Surety Bonds As a condition of this Contract, General Contractor may require the Subcontractor to furnish, on demand, a performance bond and a separate payment bond, which payment bond shall provide a direct right of action against the surety by a claimant. Each such bond shall name the General Contractor, Owner and any Lender of the Owner as co-obligees, each with the right to sue on the bonds on its own behalf rather than as co-obligees. Each such bond shall be in a penal sum equal to 100% of the Contract Price, shall be in form and substance satisfactory to the General Contractor, Owner and any Lender and shall be underwritten by a surety company authorized to do and doing business in the state the project is located, and having a “Best” rating of A, or better. Subcontractor shall furnish such bonds fifteen (15) days prior to commencement of the Work hereunder, or after award of contract, whichever comes first. Cost of bond will be a change order to subcontractor. Section 6.11 Temporary Facilities and Power (a) The Subcontractor shall place and relocate its field offices and shanties when and where directed by the Owner and/or General Contractor and shall provide all necessary facilities for its workers. It is understood that the Subcontractor is responsible at its sole cost and expense for the acquisition, maintenance and subsequent removal of all utility, sprinkler and telephone services required for its field offices and shanties. Each structure (whether storage shanty or otherwise) Subcontractor maintains must be of fire-resistant construction if placed inside the Project and must contain an appropriate number of fire extinguishers as required by applicable law and good building practices. Section 6.12 Cleaning and Rubbish Removal The Subcontractor shall clear all rubbish created by its operations on a daily basis and placed in a container provided by the Owner and/or General Contractor, as directed by the General Contractor’s superintendent. If Owner and/or General Contractor uncovers or learns of Subcontractor’s failure to clear and collect rubbish created by its operations, Owner and/or General Contractor may do so upon notice to the Subcontractor and all cost and expense of performing such Work shall be charged to the Subcontractor’s account. In the event of a dispute between the Subcontractor and other contractors on the Site as to responsibility for cleaning up as required under this Section, General Contractor may clean-up and charge the cost thereof to the contractors responsible therefor which shall in no way be construed as relieving Subcontractor of its obligations under this Contract. Section 6.13 Substitutions (a) The products, materials and equipment of manufacturers referred to in the Construction Documents are intended to establish the standard of quality and design required by Architect. Anything contained in the Construction Documents to the contrary notwithstanding, materials of manufacturers other than those specified may be used only if accepted by General Contractor and Owner as provided in this Article 6. 2863857.2 09846-86178 F (suocontactor (Contractor) EN INDEX NO. 709373/2023 NYSCEF DOC. N 17 RECEIVED NYSCEF: 11/29/2023 (b) Owner and General Contractor, in consultation with Architect, shall be the judge of equivalency of proposed substitute materials. Architect shall make written recommendations of acceptance or rejection of substitute products, materials or equipment to Owner. Owner shall then authorize Architect to issue to Subcontractor written approval or rejection of the substitution. Owner, in its sole discretion, may authorize rejection of a proposed substitution notwithstanding the fact that Architect may have judged it equivalent and recommended acceptance of the same. (c) When two or more products are specified in the Construction Documents for an item of Work, the Subcontractor shall use the product which is of greater quality and/or that selected by the Owner and/or Architect. When only one product is specified in the Construction Documents for an item of Work and the term “or equal” is used in connection with such product, Subcontractor may offer a substitution by submitting a written application to General Contractor, Architect and Owner, in sufficient time (taking into account the progress of the Work, the period of delivery of the goods concerned and adequate time for review), setting forth and fully identifying (i) the proposed substitute, together with substantiating data, samples, brochures and other supporting documentation of the substitute proposed, including, without limitation, evidence that the proposed substitution (w) is equal in quality and serviceability to the specified item, (x) will not entail changes in detail, schedule and construction ofrelated Work, (d) conforms with the design of the Project and its artistic intent, and (z) will not result in an increase in the Contract Price, as the case may be, or alternatively, will result in a Cost change as indicated in the application, and (ii) the changes in other parts of the Work required by reason of the proposed substitute, and the cost consequences associated therewith. (e) When only one product is specified in the Construction Documents for an item of Work and the term “or equal” is not used in connection with such product, Owner and/or General Contractor, in its sole and absolute discretion may authorize the rejection of any substitution proposed by Subcontractor. Notwithstanding the foregoing, if such specified product shall become unavailable for a material period of time and Owner and/or General Contractor receives reasonably satisfactory proof from Subcontractor that the same shall be unavailable for reasons other than the failure of Subcontractor or a Sub-Subcontractor to order such product in a timely manner, consistent with the Contract Documents and the scheduling requirements for the Work, then, in such event, if Owner shall consent to such substitution, any increase in cost incurred in connection with the use of such substitution shall be confirmed by a Change Order. (f) Subcontractor shall support any request for a substitution with sufficient evidence to permit Architect to make a fair and equitable recommendation to Owner on the merits of the proposal. Any item by a manufacturer other than those cited in the Construction Documents, or of brand name, or model number or size or generic species other than those cited in the Construction Documents, shall be considered a substitution. (g) Acceptance of substitutions shall not relieve Subcontractor from responsibility for compliance with all of the requirements of the Contract Documents. If changes in other parts of the Work are required by reason of approved substitutions, the costs of any such changes shall result in the issuance of a Change Order if approved by Owner under the Contract Documents. 9 2863857.2 09846-86178 F (suocontactor (Contractor) EN INDEX NO. 709373/2023 NYSCEF DOC. N 17 RECEIVED NYSCEF: 11/29/2023 (h) In no event shall the Contract Time be extended, nor shall the Contract Price be increased, by any circumstance resulting from a proposed substitution, without the issuance of a Change Order approved by General Contractor and Owner and set forth herein. Section 6.14 Site Conditions (a) By executing this Contract, the Subcontractor represents that it (i) has inspected the Site, (ii) has satisfied itselfas to the condition of the Site including, but not limited to, all structural, surface and subsurface conditions, (iii) has familiarized itself with the Site and the local conditions under which the Work is to be performed, (iv) has correlated its observations with the requirements of the Contract Documents, (v) understands that the Work may be done in a congested area, and (vi) has calculated its price and time schedule accordingly. (b) Material deliveries are to be promptly coordinated with Owner and/or General Contractor so as not to interfere with neighboring operations at the Project. Subcontractor shall obtain Owner’s and General Contractor’s approval of any proposed location of materials to be stored on Site prior to delivery of such materials on Site, as well as proposed methods of protecting and safeguarding such materials until installation. The Subcontractor shall confine operations at the Project to areas permitted by applicable Legal Requirements, ordinances, permits and the Contract Documents and shall not unreasonably encumber the Site with any materials or equipment. The Subcontractor shall coordinate all of the Subcontractor’s operations with and secure approval from the Owner and General Contractor before using any portion of the Site. (c) If hazardous substances of a type of which an employer is required by law to notify its employees are being used on the site by the General Contractor, a subcontractor or anyone directly or indirectly employed by them (other than the Subcontractor), the General Contractor shall, prior to harmful exposure of the Subcontractor’s employees to such substance, give written notice of the chemical composition thereof to the Subcontractor in sufficient detail and time to permit the Subcontractor’s compliance with such laws. (d) The Subcontractor and Sub-Subcontractors shall have no claims for such surface or subsurface conditions encountered. Notwithstanding the foregoing, should concealed conditions be (i) at variance with the conditions indicated in the reports and information set forth above, or (ii) be of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the Work and not otherwise indicated in the reports and information set forth above, the Contract Price and the time within which to perform the Work, solely to the extent granted by the Owner to the General Contractor, may be amended to reflect the actual cost incurred and additional time required by Subcontractor. The Subcontractor and Sub-Subcontractors shall exercise special care in executing Work in proximity of known subsurface or concealed utilities, improvements and easements. Section 6.15 Reports, Schedules, Ete. (a) The Subcontractor shall provide to the General Contractor, within ten (10) days of execution of this Contract, a proposed schedule for the submission of shop drawings (with appropriate cross references to applicable sections of the specifications) and a proposed schedule 10 2863857.2 09846-86178 F (suocontactor (Contractor) EN INDEX NO. 709373/2023 NYSCEF DOC. N 17 RECEIVED NYSCEF: 11/29/2023 of deliveries of materials to the Project. Subcontractor shall periodically update the status of the progress of such shop drawings and material deliveries, as well as within two (2) days of any request therefor by the Owner or General Contractor. (b) The Subcontractor shall, upon the commencement of the Work each day, provide a written report (in a form approved by the General Contractor) to the General Contractor stating the number of workers at the Site, the description of Work to be performed that day, the area(s) of the Site at which Work is to be performed that day and the equipment on the Site. (c) The Subcontractor shall be responsible for the preparation, and cost thereof, of any affidavit or instrument or supporting data regarding the Work to be performed hereunder and which is required for the issuance of Temporary or Permanent Certificate of Occupancy or for compliance with any requirements of any governmental authority having jurisdiction. (d) It shall be the duty of the Subcontractor to provide the Owner and the General Contractor, without charge and with every Application for Payment, a verified statement in a form satisfactory to the Owner and General Contractor, certifying the amounts then due and owing for labor and materials furnished under the terms of this Contract and setting forth therein the Sub- Subcontractors or suppliers who remain unpaid and the amounts due to each. Section 6.16 Coordination with Other Trades (a) Subcontractor shall coordinate its Work with the work of all other contractors for the Project. The Subcontractor shall coordinate its Work with the work of all other contractors in such manner as the General Contractor shall direct. The Subcontractor shall afford other contractors reasonable opportunity for the installation, execution and storage of their respective Work and materials. Subcontractor shall attend coordination meetings as scheduled by the General Contractor. Subcontractor shall perform all preparation of its Work required in order to receive the work of other trades. Subcontractor shall advise other contractors of any preparation of its work required in order to receive the work of other trades. Subcontractor shall advise other contractors of any preparation in their work required for its Work and shall provide those contractors with location plans and items to be built-in to their work in a timely manner.