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FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020
EXHIBIT 1
FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020
SUBCONTRACT
AGREEMENT made as of the 11th day of June in the year Two Thousand and
Eighteen (2018)
Between the Contractor:
NYB Builders Inc.
1803 Atlantic Avenue
Brooklyn, NY 11233
And the Subcontractor:
Zumba's Builders Inc.
52nd
92-35 Avenue
Elmhurst, N.Y. 11373
The Contractor has made a contract for construction with the Owner:
328 21 Street LLC
For the following Project:
21st
328 Street
At the Property:
21st
328 Street, Brooklyn, NY 11215
The Architect/Engineer for the Project is:InFocus
DOB approved plans job number:
NB: 321189682
Contractor Initials Date:
Subcontractor Initials b
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Whereas the Subcontractor has reviewed the plans, specifications, conditions, and addenda to
the general contract between Contractor and Owner for the Project, has visited the job site,has
no reservations with regard to its duty to perform, and is bound to Contractor, the Contractor and
Subcontractor agree as follows:
1. The Subcontract Documents. The Subcontract documents consist of this agreement,
any project proposals issued by this subcontractor, allproject drawings, specifications and scopes
of work concerning this Subcontractor's work only, which are specifically enumerated in Exhibit
"A", annexed hereto, and any documents referenced in this agreement.
2. Subcontractors inspection of site conditions. The Subcontractor acknowledges
that ithas carefully and thoroughly familiarized themselves with the project via visual inspection
and examination of the project, the project site and the project site conditions. in the event the
Subcontractor claims to encounter a previously unknown surface or subsurface physical
condition at the site, itshall give immediate notice to the Contractor of such conditions within
twenty four (24) hours of discovery and before the condition is disturbed so that the condition
may be investigated.
3. Scope of Work. Subcontractor agrees to commence itswork within five (5) days of
notification by Contractor, and to perform such work in strict accordance with the Contract
Documents under the direction of Contractor in accord with Owner's requirements as reflected by
the contract documents and subject to Owner's and Contractor's approval. Any changes to such
work not in strict accordance with the Contract Documents must be brought to the Contractor's
attention and noted in the site log. Subcontractor isto furnish all clean-
material, labor, equipment,
up, necessary services and warranties to fully complete the subcontract Work as described in
Exhibit A attached. Developer shall pay all material expenses either directly to the Supplier or
shall reimburse Subcontractor for all material expenses incurred. Any materials supplied by
Subcontractor shall be new and shall meet or exceed the specifications as described in Exhibit
A and any applicable state, city, town or local code, law or guideline. IfDeveloper is supplier of
any or all materials, Subcontractor shall confirm that the materials meet the said applicable
standards. AII materials, upon delivery, shall be inspected and warranted by Subcontractor, and
thus incorporated into the project, unless Subcontractor rejects said materials, in a writing
delivered to the Contractor, before the end of business on the day of delivery. Failure to reject the
materials in a timely manner shall be deemed a waiver by Subcontractor of any claim against
Contractor or Owner that the materials were defective or deficient in any way and any defects of
deficiencies in materials that are not rejected are the sole responsibility of Subcontractor. AII of
Subcontractor's work must comply with any and allapplicable codes, laws, rules and regulations.
Where any code, law rule or regulation conflicts, the higher standard shall be met. Additionally,
all warranties which Subcontractor is to provide pursuant to the contract specifications shall
commence when the entire project is accepted by the Owner, shall be for not less of a term and
duration than the Contract is obligated to provide to consumers pursuant to New York General
Business Law Section 777-A, and will be in force as described in Exhibit A attached unless a
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manufacturer warranty applies for a longer period, in which case the longer manufadurer warranty
shall control.
4. Subcontractor Sum and Payments. Contractor agrees to pay Subcontractor the sum
of One Hundred Sixty Seven Thousand ($167,000.00) Dollars and Zero Cents in accordance
with the payment schedule as described in Exhibit A attached as payment for timely completion
of itsSubcontractor Work. All fees and taxes, including alluse taxes, freight, insurances, material
costs, fabrication costs, debris removal arising out of Subcontractor's work, dumping/refuse fees,
cost of performing the scope of work, supervision costs, inspections performed by Subcontractor,
licensing and permits, but limited to crane permit only, to perform the scope of work are included
in the Subcontract price. IfContractor is paid by Owner forthe increased costs in material of any
kind, including, but not limited to, concrete, steel, fuel or petroleum based products or increases
in insurance, permit or dumping/refuse fees, then the Contractor shall pay same to subcontractor.
Said progress payments are to be made as follows:
(a) Periodic progress payments shall be made to Subcontractor for work performed if
in conformity with the plans, specifications, and subcontractor's proposal, including
such changes as approved by Owner and Contractor's representative within thirty
(30) days from approval of Subcontractor's work by the architect or other Owner's
representative. Determinations of percentages of completion and substantial
completicñ to be made and verified by the Contractor. Ten percent (10%) shall be
withheld from each payment as retainage. The Contractor may reduce the
percentage or retainage as Contractor, in itssole discretion, reasonably deems
appropriate.
(b) Final Payment of Balance due. Final payments shall be made when the terms of
completion defined in Exhibit A are made and in accordance with the time frames
set forth in Exhibit A.
5. Schedule. Subcontractor agrees to complete the scope of work of this subcontract as
described in Exhibit A attached, subject to adjustment for change orders. Subcontractor shall
provide Contractor with scheduling information for Subcontractor's work and comply with
Contractor's schedule as may be revised by Contractor while the work progresses. Additional
monetary compensation arising out of any revised schedule, including design issues, shall be
determined by Change Orders. The Subcontractor must provide Contractor written notice of any
request for an extension of time within two (2) working days of when itknows of the need for such
time extension with a description of its impact on the job.
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6. Changes and Additions. Claims for possible extra or additional work may be
permitted only upon prior written change order signed by the contractor. Prior to the
commencement of any change or additional work the subcontractor must submit promptly to the
contractor a written change order setting forth the scope of work of the proposed change/addition,
and the proposed costs and the change order must be sigñed by the contractor prior to the
commencement of the work. In no event shall Contractor or its agents direct subcontractor to
perform extra or additional work without first issuing a written change order signed by the
Contractor, and in such regard, Subcontractor shall not be required to perform any extra or
additional work without firstreceiving such a written change order unless such work is directed
by the Contractor in the field as a result of an emergency condition where there is no a reasonable
opportunity to reduce the field directive to a written change order.
7. Insurance. Prior to starting work, Subcontractor, at its expense shall obtain and
maintain in force, on all operations, insurance in accordance with Exhibit B. The policies of
insurance shall be in such form and shall be issued by such company and duly licensed by the
State of New York. Contractor and Owner shall be added as an additional insured to each policy,
certificate and endorsement. Subcontractor shall provide a certificate of insurance and
endorsement to Contractor to evidence policies. Contractor shall receive at least thirty (30) days
notice of any proposed cance"etioñ due to non-payment of premiums by Subcontractor.
(a) Within two (2) days of executing this agreement, Subcontractor shall provide
contractor with a full and complete copy of its commercial general liability
insurance policy then in place. Contractor may, within two (2) days of receiving
such policy from Subcontractor, cancel this Agreement without penalty if it
determines that the policy does not comply with the requirements of this
agreement. Nothing herein shall oblige the Contractor to review the Policy or
excuse Subcontractor's non-compliance with the terms of this Contract by
providing a Policy that is non-compliant.
(b) Subcontractor represents and warrants that the insurance policy that it
presents to contractor will be a true, accurate and fullcopy of the insurance
policy and recognizes that Subcontractor's representations are being relied
upon by the Contractor in executing this Contract and but for Subcontractor's
representations this Contract would not be executed by the Contractor.
(c) Subcontractor represents that itwas truthful and honest in any applications it
submitted to its insurance carrier in connection with its obtaining of an
insurance policy and recognizes that Subcontractor's representations are
being relied upon by the Contractor in executing this Contract and but for
Subcontractor's representations this Contract would not be executed by the
Contractor.
(d) Subcontractor's policy of insurance must contain a provision providing that it
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covers Subcontractor's contractual liability. If Subcontractor's policy of
insurance provides coverage for contractual liability
only in the event that such
contract"
liability arises out of an "insured then such definition of "insured
contract"
in the policy must include a provision such that this agreement as
contract"
written would qualify as an "insured under the Subcontractor's policy.
(e) Subcontractor's policy of insurance must not include an employer's liability
exclusion unless: (i)such exclusion is not applicable liabilityarising out of an
contract"
"insured contract"; and (ii)this agreement qualifies as an "insured
under the Subcontractor's policy.
(f) Any violation of this Section 7 by Subcontractor shall be immediate grounds for
Contractor to terminate this agreement for cause.
8. Damage to Work. All loss or damage to Subcontractor's Work resulting from any
cause whatsoever shall be borne by Subcontractor and shall be solely at its risk until installed,
but Subcontractor shall have the right to seek indemnification or make such other claims against
the party responsible for such damage. During the Subcontract term, Subcontractor shall, at its
sole expense, properly protect its own employees, laborers, materialmen, agents, materials,
suppliers, tools and equipment against any damage, injury, destruction, theft or loss and in no
event shall Contractor be liable or responsible therefore, unless caused by Contractor's conduct.
Subcontractor shall at its own cost and expense promptly repair or replace damage to work of
others, or to the Project, resulting from itsnegligent activities.
9. Damage to neighboring and/or Adjoining Property. The Subcontractor is required
to take reasonable means to protect allthe adjoining property and to perform and/or pay for and
bear the costs of the repair or replacement to any such properties damaged or destroyed by the
subcontractor's negligence. The Subcontractor assumes allliability and holds this Contractor and
the owner harmless from any damage caused to any adjoining or neighboring property which is
caused by or resulting from the Subcontractors negligence.
(a) Ifthe Subcontractor's scope of work includes any underpinning or excavation work,
and such project is within the City of New York, then Subcontractor represents and
warrants that itis familiar with the following sections of the New York City Building
Code: §1704.19, §3309.2 and §3309.5. Subcontractor agrees that should it be
required to obtain any license required under §3309.2 then it shall solely bear the costs
of obtaining such license and shall not look to the Contractor or the Owner for
reimbursement of any costs associated with obtaining a license under §3309.2.
(b) Ifthe Subcontractor's scope of work includes any underpinning or excavation work,
then Subcontractor represents and warrants that its general liabilityinsurance policy
movement"
does not contain any exclusions for "earth or for damage arising out of the
performance of excavation or underpinning activities.
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10. Compliance with Law and Safety. All work to be furnished by Subcontractor must
strictly comply with all applicable federal, state and local laws, regulations, statutes, ordinances
and directives (hereinafter "Laws") now in force and
hereafter in effect. All work, labor, services or materials necessary to comply with said Laws shall
be furnished by Subcontractor without additional compensation. Subcontractor shall comply with
allapplicable safety laws, including, but not limited to, New York Labor Law §§ 240 and 241, the
New York City Construction Code, the New York City Fire Code, National Fire Protection
Association guidelines, New York City Department of Environmental Protection rules and
regulations, New York City and State Department of Transportation rules and guidelines, and with
any reasonable safety standards which may be established during the progress of the Work by
the Contractor. Ifrequested, Subcontractor shall submit a safety plan for review by Contractor.
When ordered, either orally or in writing, Subcontractor shall stop any part of the Work which
Contractor reasonably and in good faith deems unsafe until corrective measures satisfactory to
Contractor deems have been taken. IfContractor's stopping of Subcontractor's work isfound not
reasonable or not in good faith, Contractor shall be responsible for costs incurred by the
Subcontractor arising out of the Contractor's actions. Subcontractor may be terrhiñated for cause
days'
with three (3) notice due to itsfailure to take such corrective measures. Subcontractor shall
be responsible for any incident due to Subcontractor not meeting the applicable safety
requirements, resulting in Subcontractor's default. Subcontractor shall be responsible for any
violations or penalties issued to Developer or Contractor due to Subcontractor's lack in meeting
the application safety requirements, resulting in Subcontractor's default. Subcontractor also shall
timely submit copies of allaccident or injury reports to Contractor not less than two (2) days after
Subcontractor learns of any accident or injury regardless of whether Subcontractor believes
Subcontractor and/or Contractor may not have any liabilityfor such accident or injury.
11. Choice of Law and attorney's fees. This agreement shall be construed and
governed by the laws of New York. Subject to paragraph 12 below, the venue of any proceeding
related to this Subcontract shall be in the Supreme Court of the State of New York, in the County
of Queens unless venue in another county is required by law and in that case the county of venue
shall be the county required by law. In the event of litigation arising out of this subcontract, the
prevailing party shall be entitled to recover from the other party allattorney's fees, court costs,
expert witness fees, and other expenses arising out of such action.
12. Arbitration. At the sole discretion of the Contractor, any dispute arising out of
this subcontract may be submitted to binding arbitration. Ifthe Contractor does elect arbitration
then the arbitration shall be conducted through the American Arbitration Association and shall be
subject to and governed by the Construction Industry Arbitration Rules and Mediatioñ Procedures
as setforth by the American Arbitration Association. The locale of any arbitration that takes place
shall be Nassau County, New York. In the event of arbitration arising out of this subcontract, the
attorneys'
prevailing party shall be entitled to recover from the other party all fees, arbitration fees,
expert witness fees, and other expenses arising out of such action.
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13. Performance. Should Subcontractor failin any respect to correctly prosecute the
Work, supply required materials or failto correct defective Work promptly, or failas to any of the
Subcüñtract requirements, Contractor may perform for Subcontractor and charge all costs to
Subcontractor, provided that Contractor firstgives Subcontractor an opportunity to cure. In such
event, Contractor shall provide five (5) days written notice to Subcontractor, to cure any such
failure, except in an emergeñcy. Failure to cure or perform such Work within said five (5) day
period shall be grounds for immediate termination for cause.
14. Assignrnent. This Subcontract or any interest therein may not be transferred or
assigned, or the Work or any part thereof be subcontracted, without the prior written cüñsêñt of
both parties except that Contractor may assign this Contract to a related entity provided that the
related entity assumes allof Contractor's duties and obligations under this agreement.
15. Consequential Damages. Except as otherwise stated herein, the
Contractor and Subcontractor waive claims against each other for consequential damages arising
out of or relating to the Contract. This mutual waiver includes, but is not limited to:
15.1 Damages incurred by the Owner for rental expenses, for losses of use,
income, profit, financing, business and reputation, and for loss of
management or employee productivity or of the services of such persons;
and
15.2 Damages incurred by the Contractor or Subcontractor for principal office
expenses including the compeñsation of personnel stationed there, for
losses of financing, business and reputation, and for loss of profit except
anticipated profitarising directly from the work covered by the scope of this
Subcontract.
16. Waiver of Subrogation. AII insurance policies provided by Subcontractor shall
provide a waiver of Subrogation in favor of the Contractor and Owner. To the extent permitted by
law and by the Subcontractor's policy of insurance, Subcontractor hereby releases Contractor,
Owner and their respective insurers, their elected and appointed officials, employees and
volunteers and others working on their behalf from any and allliability or responsibility to the
Contractor or anyone claiming through or under this contract by way of subrogation or otherwise,
for any loss or damage to property caused by fire or any other casualty, even ifsuch fire or other
casualty shall have been caused by the partial fault or negligence of Contractor.
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17. Notice.
Any notices required under this Subcontract shall be provided as follows:
Notice to the Contractor shall be provided to:
NYB Builders Inc.
1803 Atlantic Avenue
Brooklyn, NY 11233
Ifthe Contractor's Notice provision above is leftblank then notice shall be provided via first class
mail to the Contractor's address as set forth on the first page of this Subcontract with a copy to
Contractor via facsimile ifContractor's facsimile number is known by Contractor. Subcontractor's
failure to actually receive such notice shall not be relevant provided that Contractor can establish
proper service of such notice in accordance with this provision.
18. Miscellaneous.
(a) Contractor shall provide Subcontractor with copies of any labor and material payment
bond issued in connection with this Project simultaneously with the execution of this Subcontract.
(b) Itis understood that the Subcontractor shall provide the Work under this Subcontract
in accordance with the Subcontractor's proposal, which sets forth the parties understanding of
the scope of work and which is hereby incorporated by reference and made a part of this
Subcontract.
(c) Subcontractor shall keep the immediate work area of Subcontractor's work free from
accumulation of waste materials or rubbish caused by operations performed under this Contract.
The Subcoñtractor shall not be held responsible for unclean conditions caused by other
contractors or subcontractors and shall not be subject to any charge by the Contractor for trash
removal or cleanup determined on a pro rata or similar basis.
(d) Cuñtractor shall coordinate the Subcontractor's work with the work of other trades on
the project site. The Subcontractor agrees to give reasonable cooperation to the Contractor in its
efforts to coordinate the work.
(e) Ifthe Contractor asserts or defends a claim against the Owner that relates to the
Work of the Subcontractor, the Contractor shall notify the Subcontractor in writing within ten (10)
days of first asserting or defending the claim, and the Contractor, ifrequested, shall furnish the
Subcontractor information relating to that portion of the claim that relates to the Work of the
Subcontractor.
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This Subcontract entered as of the day and year first above written.
CONTRACTOR SUBCONTRACTOR
(Signat e) (Signature)
(Printed hame) (Printed Name)
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SUBCONTRACT
Exhibit A
Scope of Work
• The sub-contractor shall obtain all necessary building permits, including those required by
the New York Department of Building (DOB) and Department of Transportation (DOT).
The sub-contractor will secure at his/her own expense any other necessary permits and
licenses required to do the work and will comply with allbuilding and code regulations and
ordinances whether or not covered by the specifications and drawings for the work. (New
Building Permit, Electric Permit, Plumbing and Sprinkler Permits, DOT Permits, Elevator
Permit, etc.)
• The sub-contractor will be responsible for inspections and fees (such as
any laboratory
concrete controlled inspection of floor slabs)
• Sub-contractor will all materials and labor (except where in
supply necessary indicated)
order to complete the following according to approved plans and in standing with NYC
DOB, NYC DOT, NYC DEP, FDNY, and OSHA safety codes.
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SCOPE OF WORK
Shorting 11 I-beans x 2500 $ 33,500
Underpinning $ 29,000
Excavation $ 45,000
Footing $ 27,000
Foundation $ 33,000
TOTAL PRICE $167,500
Start Date: June 11, 2018
Completion Date:
Scope of work (job Descriptioñ): for 1 house.
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• Attached as Rider To Contract.
Payment Schedule
• Payments willbe made in accordance to job progress.
Terms of completion and release of finalpayment:
• Services inspected GC and Owner and determined to be in accardance to approved plans.
by
• Concrete lab results (28 days) found satisfactory to plan specificati0ñ.
according
• Relevant cGatic||éd inspections have been performed by engineer.
• Relevant inspections for construction loan have been completed and allfunds transferred by
lender.
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ADDITIONAL HANDWRITTEN SCOPE OF WORK AND LIMITS ATTACHED TO THIS
CONTRACT AND SIGNED
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SUBCONTRACT
Exhibit B
Insurance Requirements
The Subcontractor acknowledges they are contractua!!y bound to issue a Certificate of Insurance
and obtain an endorssmsat with liabilitylimits as set forth below naming the project owner and the
Insureds."
Contractor as "Additional
Subcontractor, itsagents and, sub-contractors hereby indemnify and hold harmless the named insured
including the owner and contractor, and its agents and erapicyees, to the fullest extent permitted by
applicable law inthe event of a loss,including but not limitedto any claims of any sort resulting from any
Subcontractors'
activityin connection with the work, any claim, suit,cost or expense arising out of any loss
suffered by an êraplayas of the contractor, subcontractor and/or sub-subcontractor, regardless of whether
the Named Insured is partially ñêgligêñt and excluding only liabilitycreated by the Named Insured's sole
and exclusive segligence, but only to the extent such claims arise out of the negligence or fault of the
Subcontractor.
Subcontractors'
All Sub-subcontractõrsNendors,/etc. shall be held to the above requirements as well.
The Subcontractor shall procure, at itsown expense, the following insurance:
A. Workmen's Compensation Insurance providing coverage in acccidañce with the laws of the State
inwhich the Project issituated;
B. Maintain Employer's LiabilityInsurance;
C. Comprehensive General LiabilityInsurance in the minimum amounts $1,000,000 per project per
occurrence of the bodily injury liabilityand $1,000,000 per project per occurrence for property
damage $2,000,000
liability, in aggregate Comprehensive General Insurance,
Liability which shall
include blanket contractual liability,broad form picpercy damage, completed operaticñs,
independent contractor's coverage, products and
liability coverage of the perils of co!!apse and
explosion riderswhere applicable.
D. Autcrñcbile liabilitycoverage for allowned, non-owned and hired vehicles, in the amount of
$1,000,000 bodily injury including death and $1,000,000 property damage per occurrence.
E. Excess/umbrella coverage in theamount of not less than $2,000,000.00.
F. Personal Injury Liabilitywith Employment Exclusion deleted.
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Sub-contractor shall carry liabilityinsurance with the limits of 5 MillionDollars for injuryor death of one
person, 5 Million Dollars for injuriesor death suffered in one acci
Preview
FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020 EXHIBIT 1 FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020 SUBCONTRACT AGREEMENT made as of the 11th day of June in the year Two Thousand and Eighteen (2018) Between the Contractor: NYB Builders Inc. 1803 Atlantic Avenue Brooklyn, NY 11233 And the Subcontractor: Zumba's Builders Inc. 52nd 92-35 Avenue Elmhurst, N.Y. 11373 The Contractor has made a contract for construction with the Owner: 328 21 Street LLC For the following Project: 21st 328 Street At the Property: 21st 328 Street, Brooklyn, NY 11215 The Architect/Engineer for the Project is:InFocus DOB approved plans job number: NB: 321189682 Contractor Initials Date: Subcontractor Initials b FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020 Whereas the Subcontractor has reviewed the plans, specifications, conditions, and addenda to the general contract between Contractor and Owner for the Project, has visited the job site,has no reservations with regard to its duty to perform, and is bound to Contractor, the Contractor and Subcontractor agree as follows: 1. The Subcontract Documents. The Subcontract documents consist of this agreement, any project proposals issued by this subcontractor, allproject drawings, specifications and scopes of work concerning this Subcontractor's work only, which are specifically enumerated in Exhibit "A", annexed hereto, and any documents referenced in this agreement. 2. Subcontractors inspection of site conditions. The Subcontractor acknowledges that ithas carefully and thoroughly familiarized themselves with the project via visual inspection and examination of the project, the project site and the project site conditions. in the event the Subcontractor claims to encounter a previously unknown surface or subsurface physical condition at the site, itshall give immediate notice to the Contractor of such conditions within twenty four (24) hours of discovery and before the condition is disturbed so that the condition may be investigated. 3. Scope of Work. Subcontractor agrees to commence itswork within five (5) days of notification by Contractor, and to perform such work in strict accordance with the Contract Documents under the direction of Contractor in accord with Owner's requirements as reflected by the contract documents and subject to Owner's and Contractor's approval. Any changes to such work not in strict accordance with the Contract Documents must be brought to the Contractor's attention and noted in the site log. Subcontractor isto furnish all clean- material, labor, equipment, up, necessary services and warranties to fully complete the subcontract Work as described in Exhibit A attached. Developer shall pay all material expenses either directly to the Supplier or shall reimburse Subcontractor for all material expenses incurred. Any materials supplied by Subcontractor shall be new and shall meet or exceed the specifications as described in Exhibit A and any applicable state, city, town or local code, law or guideline. IfDeveloper is supplier of any or all materials, Subcontractor shall confirm that the materials meet the said applicable standards. AII materials, upon delivery, shall be inspected and warranted by Subcontractor, and thus incorporated into the project, unless Subcontractor rejects said materials, in a writing delivered to the Contractor, before the end of business on the day of delivery. Failure to reject the materials in a timely manner shall be deemed a waiver by Subcontractor of any claim against Contractor or Owner that the materials were defective or deficient in any way and any defects of deficiencies in materials that are not rejected are the sole responsibility of Subcontractor. AII of Subcontractor's work must comply with any and allapplicable codes, laws, rules and regulations. Where any code, law rule or regulation conflicts, the higher standard shall be met. Additionally, all warranties which Subcontractor is to provide pursuant to the contract specifications shall commence when the entire project is accepted by the Owner, shall be for not less of a term and duration than the Contract is obligated to provide to consumers pursuant to New York General Business Law Section 777-A, and will be in force as described in Exhibit A attached unless a 2 Contractor Initials Date: Subcontractor Init FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020 manufacturer warranty applies for a longer period, in which case the longer manufadurer warranty shall control. 4. Subcontractor Sum and Payments. Contractor agrees to pay Subcontractor the sum of One Hundred Sixty Seven Thousand ($167,000.00) Dollars and Zero Cents in accordance with the payment schedule as described in Exhibit A attached as payment for timely completion of itsSubcontractor Work. All fees and taxes, including alluse taxes, freight, insurances, material costs, fabrication costs, debris removal arising out of Subcontractor's work, dumping/refuse fees, cost of performing the scope of work, supervision costs, inspections performed by Subcontractor, licensing and permits, but limited to crane permit only, to perform the scope of work are included in the Subcontract price. IfContractor is paid by Owner forthe increased costs in material of any kind, including, but not limited to, concrete, steel, fuel or petroleum based products or increases in insurance, permit or dumping/refuse fees, then the Contractor shall pay same to subcontractor. Said progress payments are to be made as follows: (a) Periodic progress payments shall be made to Subcontractor for work performed if in conformity with the plans, specifications, and subcontractor's proposal, including such changes as approved by Owner and Contractor's representative within thirty (30) days from approval of Subcontractor's work by the architect or other Owner's representative. Determinations of percentages of completion and substantial completicñ to be made and verified by the Contractor. Ten percent (10%) shall be withheld from each payment as retainage. The Contractor may reduce the percentage or retainage as Contractor, in itssole discretion, reasonably deems appropriate. (b) Final Payment of Balance due. Final payments shall be made when the terms of completion defined in Exhibit A are made and in accordance with the time frames set forth in Exhibit A. 5. Schedule. Subcontractor agrees to complete the scope of work of this subcontract as described in Exhibit A attached, subject to adjustment for change orders. Subcontractor shall provide Contractor with scheduling information for Subcontractor's work and comply with Contractor's schedule as may be revised by Contractor while the work progresses. Additional monetary compensation arising out of any revised schedule, including design issues, shall be determined by Change Orders. The Subcontractor must provide Contractor written notice of any request for an extension of time within two (2) working days of when itknows of the need for such time extension with a description of its impact on the job. 3 Contractor Initials Date: Subcontractor Initials/ FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020 6. Changes and Additions. Claims for possible extra or additional work may be permitted only upon prior written change order signed by the contractor. Prior to the commencement of any change or additional work the subcontractor must submit promptly to the contractor a written change order setting forth the scope of work of the proposed change/addition, and the proposed costs and the change order must be sigñed by the contractor prior to the commencement of the work. In no event shall Contractor or its agents direct subcontractor to perform extra or additional work without first issuing a written change order signed by the Contractor, and in such regard, Subcontractor shall not be required to perform any extra or additional work without firstreceiving such a written change order unless such work is directed by the Contractor in the field as a result of an emergency condition where there is no a reasonable opportunity to reduce the field directive to a written change order. 7. Insurance. Prior to starting work, Subcontractor, at its expense shall obtain and maintain in force, on all operations, insurance in accordance with Exhibit B. The policies of insurance shall be in such form and shall be issued by such company and duly licensed by the State of New York. Contractor and Owner shall be added as an additional insured to each policy, certificate and endorsement. Subcontractor shall provide a certificate of insurance and endorsement to Contractor to evidence policies. Contractor shall receive at least thirty (30) days notice of any proposed cance"etioñ due to non-payment of premiums by Subcontractor. (a) Within two (2) days of executing this agreement, Subcontractor shall provide contractor with a full and complete copy of its commercial general liability insurance policy then in place. Contractor may, within two (2) days of receiving such policy from Subcontractor, cancel this Agreement without penalty if it determines that the policy does not comply with the requirements of this agreement. Nothing herein shall oblige the Contractor to review the Policy or excuse Subcontractor's non-compliance with the terms of this Contract by providing a Policy that is non-compliant. (b) Subcontractor represents and warrants that the insurance policy that it presents to contractor will be a true, accurate and fullcopy of the insurance policy and recognizes that Subcontractor's representations are being relied upon by the Contractor in executing this Contract and but for Subcontractor's representations this Contract would not be executed by the Contractor. (c) Subcontractor represents that itwas truthful and honest in any applications it submitted to its insurance carrier in connection with its obtaining of an insurance policy and recognizes that Subcontractor's representations are being relied upon by the Contractor in executing this Contract and but for Subcontractor's representations this Contract would not be executed by the Contractor. (d) Subcontractor's policy of insurance must contain a provision providing that it 4 Contractor Initials Date: Subcontractor Initials f1 FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020 covers Subcontractor's contractual liability. If Subcontractor's policy of insurance provides coverage for contractual liability only in the event that such contract" liability arises out of an "insured then such definition of "insured contract" in the policy must include a provision such that this agreement as contract" written would qualify as an "insured under the Subcontractor's policy. (e) Subcontractor's policy of insurance must not include an employer's liability exclusion unless: (i)such exclusion is not applicable liabilityarising out of an contract" "insured contract"; and (ii)this agreement qualifies as an "insured under the Subcontractor's policy. (f) Any violation of this Section 7 by Subcontractor shall be immediate grounds for Contractor to terminate this agreement for cause. 8. Damage to Work. All loss or damage to Subcontractor's Work resulting from any cause whatsoever shall be borne by Subcontractor and shall be solely at its risk until installed, but Subcontractor shall have the right to seek indemnification or make such other claims against the party responsible for such damage. During the Subcontract term, Subcontractor shall, at its sole expense, properly protect its own employees, laborers, materialmen, agents, materials, suppliers, tools and equipment against any damage, injury, destruction, theft or loss and in no event shall Contractor be liable or responsible therefore, unless caused by Contractor's conduct. Subcontractor shall at its own cost and expense promptly repair or replace damage to work of others, or to the Project, resulting from itsnegligent activities. 9. Damage to neighboring and/or Adjoining Property. The Subcontractor is required to take reasonable means to protect allthe adjoining property and to perform and/or pay for and bear the costs of the repair or replacement to any such properties damaged or destroyed by the subcontractor's negligence. The Subcontractor assumes allliability and holds this Contractor and the owner harmless from any damage caused to any adjoining or neighboring property which is caused by or resulting from the Subcontractors negligence. (a) Ifthe Subcontractor's scope of work includes any underpinning or excavation work, and such project is within the City of New York, then Subcontractor represents and warrants that itis familiar with the following sections of the New York City Building Code: §1704.19, §3309.2 and §3309.5. Subcontractor agrees that should it be required to obtain any license required under §3309.2 then it shall solely bear the costs of obtaining such license and shall not look to the Contractor or the Owner for reimbursement of any costs associated with obtaining a license under §3309.2. (b) Ifthe Subcontractor's scope of work includes any underpinning or excavation work, then Subcontractor represents and warrants that its general liabilityinsurance policy movement" does not contain any exclusions for "earth or for damage arising out of the performance of excavation or underpinning activities. 5 Contractor Initials Date: Subcontractor Initials fd- FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020 10. Compliance with Law and Safety. All work to be furnished by Subcontractor must strictly comply with all applicable federal, state and local laws, regulations, statutes, ordinances and directives (hereinafter "Laws") now in force and hereafter in effect. All work, labor, services or materials necessary to comply with said Laws shall be furnished by Subcontractor without additional compensation. Subcontractor shall comply with allapplicable safety laws, including, but not limited to, New York Labor Law §§ 240 and 241, the New York City Construction Code, the New York City Fire Code, National Fire Protection Association guidelines, New York City Department of Environmental Protection rules and regulations, New York City and State Department of Transportation rules and guidelines, and with any reasonable safety standards which may be established during the progress of the Work by the Contractor. Ifrequested, Subcontractor shall submit a safety plan for review by Contractor. When ordered, either orally or in writing, Subcontractor shall stop any part of the Work which Contractor reasonably and in good faith deems unsafe until corrective measures satisfactory to Contractor deems have been taken. IfContractor's stopping of Subcontractor's work isfound not reasonable or not in good faith, Contractor shall be responsible for costs incurred by the Subcontractor arising out of the Contractor's actions. Subcontractor may be terrhiñated for cause days' with three (3) notice due to itsfailure to take such corrective measures. Subcontractor shall be responsible for any incident due to Subcontractor not meeting the applicable safety requirements, resulting in Subcontractor's default. Subcontractor shall be responsible for any violations or penalties issued to Developer or Contractor due to Subcontractor's lack in meeting the application safety requirements, resulting in Subcontractor's default. Subcontractor also shall timely submit copies of allaccident or injury reports to Contractor not less than two (2) days after Subcontractor learns of any accident or injury regardless of whether Subcontractor believes Subcontractor and/or Contractor may not have any liabilityfor such accident or injury. 11. Choice of Law and attorney's fees. This agreement shall be construed and governed by the laws of New York. Subject to paragraph 12 below, the venue of any proceeding related to this Subcontract shall be in the Supreme Court of the State of New York, in the County of Queens unless venue in another county is required by law and in that case the county of venue shall be the county required by law. In the event of litigation arising out of this subcontract, the prevailing party shall be entitled to recover from the other party allattorney's fees, court costs, expert witness fees, and other expenses arising out of such action. 12. Arbitration. At the sole discretion of the Contractor, any dispute arising out of this subcontract may be submitted to binding arbitration. Ifthe Contractor does elect arbitration then the arbitration shall be conducted through the American Arbitration Association and shall be subject to and governed by the Construction Industry Arbitration Rules and Mediatioñ Procedures as setforth by the American Arbitration Association. The locale of any arbitration that takes place shall be Nassau County, New York. In the event of arbitration arising out of this subcontract, the attorneys' prevailing party shall be entitled to recover from the other party all fees, arbitration fees, expert witness fees, and other expenses arising out of such action. 6 Contractor Initials Date: Subcontractor Initials //1 /7 FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020 13. Performance. Should Subcontractor failin any respect to correctly prosecute the Work, supply required materials or failto correct defective Work promptly, or failas to any of the Subcüñtract requirements, Contractor may perform for Subcontractor and charge all costs to Subcontractor, provided that Contractor firstgives Subcontractor an opportunity to cure. In such event, Contractor shall provide five (5) days written notice to Subcontractor, to cure any such failure, except in an emergeñcy. Failure to cure or perform such Work within said five (5) day period shall be grounds for immediate termination for cause. 14. Assignrnent. This Subcontract or any interest therein may not be transferred or assigned, or the Work or any part thereof be subcontracted, without the prior written cüñsêñt of both parties except that Contractor may assign this Contract to a related entity provided that the related entity assumes allof Contractor's duties and obligations under this agreement. 15. Consequential Damages. Except as otherwise stated herein, the Contractor and Subcontractor waive claims against each other for consequential damages arising out of or relating to the Contract. This mutual waiver includes, but is not limited to: 15.1 Damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and 15.2 Damages incurred by the Contractor or Subcontractor for principal office expenses including the compeñsation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profitarising directly from the work covered by the scope of this Subcontract. 16. Waiver of Subrogation. AII insurance policies provided by Subcontractor shall provide a waiver of Subrogation in favor of the Contractor and Owner. To the extent permitted by law and by the Subcontractor's policy of insurance, Subcontractor hereby releases Contractor, Owner and their respective insurers, their elected and appointed officials, employees and volunteers and others working on their behalf from any and allliability or responsibility to the Contractor or anyone claiming through or under this contract by way of subrogation or otherwise, for any loss or damage to property caused by fire or any other casualty, even ifsuch fire or other casualty shall have been caused by the partial fault or negligence of Contractor. 7 Contractor Initials Date: Subcontractor Initials FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020 17. Notice. Any notices required under this Subcontract shall be provided as follows: Notice to the Contractor shall be provided to: NYB Builders Inc. 1803 Atlantic Avenue Brooklyn, NY 11233 Ifthe Contractor's Notice provision above is leftblank then notice shall be provided via first class mail to the Contractor's address as set forth on the first page of this Subcontract with a copy to Contractor via facsimile ifContractor's facsimile number is known by Contractor. Subcontractor's failure to actually receive such notice shall not be relevant provided that Contractor can establish proper service of such notice in accordance with this provision. 18. Miscellaneous. (a) Contractor shall provide Subcontractor with copies of any labor and material payment bond issued in connection with this Project simultaneously with the execution of this Subcontract. (b) Itis understood that the Subcontractor shall provide the Work under this Subcontract in accordance with the Subcontractor's proposal, which sets forth the parties understanding of the scope of work and which is hereby incorporated by reference and made a part of this Subcontract. (c) Subcontractor shall keep the immediate work area of Subcontractor's work free from accumulation of waste materials or rubbish caused by operations performed under this Contract. The Subcoñtractor shall not be held responsible for unclean conditions caused by other contractors or subcontractors and shall not be subject to any charge by the Contractor for trash removal or cleanup determined on a pro rata or similar basis. (d) Cuñtractor shall coordinate the Subcontractor's work with the work of other trades on the project site. The Subcontractor agrees to give reasonable cooperation to the Contractor in its efforts to coordinate the work. (e) Ifthe Contractor asserts or defends a claim against the Owner that relates to the Work of the Subcontractor, the Contractor shall notify the Subcontractor in writing within ten (10) days of first asserting or defending the claim, and the Contractor, ifrequested, shall furnish the Subcontractor information relating to that portion of the claim that relates to the Work of the Subcontractor. 8 Contractor Initials Date: Subcontractor Initials (1 Ú FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020 This Subcontract entered as of the day and year first above written. CONTRACTOR SUBCONTRACTOR (Signat e) (Signature) (Printed hame) (Printed Name) 9 Contractor Initials Date: Subcontractor Initials FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020 SUBCONTRACT Exhibit A Scope of Work • The sub-contractor shall obtain all necessary building permits, including those required by the New York Department of Building (DOB) and Department of Transportation (DOT). The sub-contractor will secure at his/her own expense any other necessary permits and licenses required to do the work and will comply with allbuilding and code regulations and ordinances whether or not covered by the specifications and drawings for the work. (New Building Permit, Electric Permit, Plumbing and Sprinkler Permits, DOT Permits, Elevator Permit, etc.) • The sub-contractor will be responsible for inspections and fees (such as any laboratory concrete controlled inspection of floor slabs) • Sub-contractor will all materials and labor (except where in supply necessary indicated) order to complete the following according to approved plans and in standing with NYC DOB, NYC DOT, NYC DEP, FDNY, and OSHA safety codes. 10 Contractor Initials Date: Subcontractor Initials FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020 SCOPE OF WORK Shorting 11 I-beans x 2500 $ 33,500 Underpinning $ 29,000 Excavation $ 45,000 Footing $ 27,000 Foundation $ 33,000 TOTAL PRICE $167,500 Start Date: June 11, 2018 Completion Date: Scope of work (job Descriptioñ): for 1 house. 11 Contractor Initials Date: Subcontractor Initials -h FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020 • Attached as Rider To Contract. Payment Schedule • Payments willbe made in accordance to job progress. Terms of completion and release of finalpayment: • Services inspected GC and Owner and determined to be in accardance to approved plans. by • Concrete lab results (28 days) found satisfactory to plan specificati0ñ. according • Relevant cGatic||éd inspections have been performed by engineer. • Relevant inspections for construction loan have been completed and allfunds transferred by lender. 12 Contractor Initials Date: Subcontractor -/J Initials/ FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF . DOC. . NO. 74 RECEIVED NYSCEF: 08/20/2020 ADDITIONAL HANDWRITTEN SCOPE OF WORK AND LIMITS ATTACHED TO THIS CONTRACT AND SIGNED 13 Contractor Initials Date: Subcontractor Initials ) FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020 SUBCONTRACT Exhibit B Insurance Requirements The Subcontractor acknowledges they are contractua!!y bound to issue a Certificate of Insurance and obtain an endorssmsat with liabilitylimits as set forth below naming the project owner and the Insureds." Contractor as "Additional Subcontractor, itsagents and, sub-contractors hereby indemnify and hold harmless the named insured including the owner and contractor, and its agents and erapicyees, to the fullest extent permitted by applicable law inthe event of a loss,including but not limitedto any claims of any sort resulting from any Subcontractors' activityin connection with the work, any claim, suit,cost or expense arising out of any loss suffered by an êraplayas of the contractor, subcontractor and/or sub-subcontractor, regardless of whether the Named Insured is partially ñêgligêñt and excluding only liabilitycreated by the Named Insured's sole and exclusive segligence, but only to the extent such claims arise out of the negligence or fault of the Subcontractor. Subcontractors' All Sub-subcontractõrsNendors,/etc. shall be held to the above requirements as well. The Subcontractor shall procure, at itsown expense, the following insurance: A. Workmen's Compensation Insurance providing coverage in acccidañce with the laws of the State inwhich the Project issituated; B. Maintain Employer's LiabilityInsurance; C. Comprehensive General LiabilityInsurance in the minimum amounts $1,000,000 per project per occurrence of the bodily injury liabilityand $1,000,000 per project per occurrence for property damage $2,000,000 liability, in aggregate Comprehensive General Insurance, Liability which shall include blanket contractual liability,broad form picpercy damage, completed operaticñs, independent contractor's coverage, products and liability coverage of the perils of co!!apse and explosion riderswhere applicable. D. Autcrñcbile liabilitycoverage for allowned, non-owned and hired vehicles, in the amount of $1,000,000 bodily injury including death and $1,000,000 property damage per occurrence. E. Excess/umbrella coverage in theamount of not less than $2,000,000.00. F. Personal Injury Liabilitywith Employment Exclusion deleted. 14 Contractor Initials Date: Subcontractor Initials /d-/d FILED: KINGS COUNTY CLERK 08/20/2020 05:44 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 08/20/2020 Sub-contractor shall carry liabilityinsurance with the limits of 5 MillionDollars for injuryor death of one person, 5 Million Dollars for injuriesor death suffered in one acci