Preview
FILED: NEW YORK COUNTY CLERK 02/06/2023 02:45 PM INDEX NO. 155551/2018
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 02/06/2023
CONSTRUCTION MANAGEMENT AGREEMENT
95*
AGREEMENT dated as of March 31, 2016 by and between and Third, IlC care of
·3d - 7*
Extell Development Company, having an office at 805 Avenue Floor, New York, NY
10017 (the "Owner"), and Gilbane Residential Construction, LLC with offices at 88 Pine Street -
27*
Floor, New York, NY 10005 (the. "Construction Manager").
WI T N E S S E T H:
3''
WHEREAS, Owner is the owner of certain real property located at 1681-1693 Avenue
located in Manhattan, New York (the project "Site"); and
WHEREAS, Owner intends to develop and construct one 30-story structure above grade,
including two roof bulkhead levels and two subgrade levels, containing commercial space on the
first ad subgrade levels, with residential units on all other floors (the "Project"); and
WHEREAS, Owner wishes to retain Construction Manager to provide certain pre-
cons1ruction management services as described herein to assist in development of the Project on a
Guaranteed Maximum Price ("GMP") basis, as and to the extent hereafter defined, as an at-risk
construction manager using trade contractors as hereinafter provided; and
WHEREAS, Construction Manager is willing to act in such capacity and cause to be
provided through trade contractors or its own forces, as hereafter provided, all labor, material,
equipment, tools and services required for the timely, lien free completion of the Project and
otherwise perform its obligations hereunder; and
WHEREAS, Owner has retained Beyer Blinder Belle Architects and Planners LLP
("Architect"); and also has engaged, either through the Architect or directly, structural,
mechanical, electrical and other engineers, inspectors, agencies and consultants normally and
customarily retained by architects or owners to design the elements or inspect the construction of
"Architect"
the Project. As used throughout this Agreement, shall be understood to refer to a
particular Architect or all of the Project Architects, as the case may be, and when required by
context, to other design consultants who collectively form Owner's design team and
NOW, THEREFORE, in consideration of the promises and the mutual covenants
contained herein and the sum of by Owner in hand paid to Construction
Manager, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto intending to be legally bound, agree as follows:
ARTICLE I
(Contract Documents)
"A"
11 The "Contract Documents", which are listed in Exhibit hereto,
consist of: (i) this Agreement, together with all Exhibits; (ii) all addenda issued prior to, and all
duly executed amendments (including Change Orders, as hereafter defined) and modifications (in
EDC1687ThirdCMA FINAL 1
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NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 02/06/2023
both cases with attachments) issued after, execution of this Agreement; (iii) the Drawings; (iv) the
Specifications; (v) approved shop drawings; (vi) the Guaranteed Maximum Price document
A.'
including all attachments thereto; and (vii) all other documents listed in Exhibit Each of the
foregoing is an integral part of this Agreement and is as if attached hereto, In resolving any
conflicts among the Contract Documents, the above listed order of priority shall control, with item
(vi) having the overriding priority, except to the extent subsequently altered by a Change Order or
modification; and within each category, the newer Contract Documents shall be given precedence.
The Contract Documents expressly do not include documents such as the advertisement or
invitation to bid, the instructions to bidders, sample forms, the Construction Manager's bid or
portions of addenda relating to any of these or any other documents, unless specifically identified
in Exhibit A.
1.1.1 A list of ali definitions used herein is attached hereto as Exhibit "B"hereof.
1.2 Construction Manager acknowledges that as of the execution of this
Agreement, the Drawings, Specifications, and other documents listed in Exhibit A are not
complete as of their respective dates indicated and will be subject to further revisions, refinements,
and clarifications, as well as the issuance of additional Drawings, Specifications and documents in
order to fully and completely reflect all components and details of the Project.
1.3 The intent of the Contract Documents is to include all items necessary for
the proper and entire execution and completion of the Work (as hereafter defined). The Contract
Documents are complementary, and what is required by one shall be as if required by all provided,
however, that performance by Construction Manager shall be required only to the extent consistent
with the Contract Documents and reasonably inferable from them or as being necessary to produce
the indicated results.
1.4 Construction Manager represents that it has visited the Site of the Work,
become familiar with local conditions, including the labor market, under which the Work is to be
performed and correlated personal observations with the requirements of the Contract Documents.
1.5 All Drawings, Specifications and copies thereof shall be furnished by
Owner, are solely for Construction Manager's reference with respect to the Project, and shall be
used for no other or different pmpose. Construction Manager has no ownership interest in the
Drawings or Specifications. With the exception of one archival set that may be retained by
Construction Manager, all Drawings and Specifications shall be suitably accounted for to Owner
at completion of the Project. Submission or distribution to meet official regulatory requirements
or for other purposes in connection with financing of the Project is not to be construed as
publication in derogation of the respective ownership interests of Architect and Owner in the
Drawings and Specifications.
END OF SECTION.
noc1687nDdCMA HNAL
FILED: NEW YORK COUNTY CLERK 02/06/2023 02:45 PM INDEX NO. 155551/2018
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 02/06/2023
ARTICLE H
(Scope of the Work)
22 Construction Manager shall cause to be performed and provided through
Trade Contractors, or its own forces with respect to general conditions work (as hereafter
provided), all labor, material, equipment, tools and services (inclusive of hauling and disposing of
all known contaminated (i.e. non-hazardous) soils designated Owner or its consultants but
by
exclusive of Hazardous Materials (as hereafter defined) or asbestos encapsulation, removal,
transportation, hauling or disposal which is to be performed by and under the exclusive direction,
supervision and control of others, but in all cases tracked, monitored and coordinated by
Construction Manager) required for the complete construction of the Project in accordance with
the terms of the Contract Documents and Applicable Law (the "Work").
2.1.1 All Work shall be performed in a first class and workmanlike
manner, and in strict accordance with the Contract Documents. In the event that Owner
determines that Construction Manager is not pursuing the Work in a first class and workmanlike
manner or in conformance with the Contract Documents, Owner shall so Construction
notify
Manager, in writing, who shall correct or commence to correct said or
deficiency
non-conformance within three (3) business days of delivery of such notice, or be deemed to be in
material breach of this Agreement. .
2.2 Construction Manager shall use its best efforts, best skill and best judgment
in performing its duties under this Agreement. All material and equipment furnished or installed
into the Project by Construction Manager shall be new unless otherwise specified in the Contract
efforts" skill" judgment"
Documents. For the purpose of this Agreement, "best or "best or "best
shall be deemed to mean those efforts that a qualified and diligent construction manager similar to
Construction Manager would use to fulfill Owner's objectives as made known to Construction
Manager, considering the high degree of trust and confidence Owner has placed in Construction
Manager as an experienced and capable construction manager. Nothing contained in this
Agreement shall be deemed to authorize or require Construction Manager to perform with its own
forces any act that would constitute the rendering of profes sional services, such as the practice of
architecture, engineering or laboratory testing; provided, however, that Construction Manager
remains responsible for the performance of the Trade Contractors who retain design professionals
undertaking portions of the Work, Such responsibility is expressly limited to Professional Liability
Insurance recoveries on account of such design professionals. With the exception of the GMP
referred to in this Agreement, the recommendations, advice, budgetary information and schedules
to be furnished by. Construction Manager under this Agreement are for the sole use of Owner and
shall not be deemed to be representations, warranties, or guarantees or constitute the performance
of licensed professional services. Value engineering services provided by Construction Manager
under this Agreement are advisory and do not constitute the performance of professional design
services. Owner, with due diligence, will refer Construction Manager's value engineering efforts,
questions, matters, inquiries and/or suggestions to the Architect or Owner's other design
professionals and/or consultants, and Construction Manager shall have no liability to Owner,
Architect, other design professionals or consultants for such value engineering suggestions.
EDC1687TidrdCMA FINAL
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NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 02/06/2023
2.3 Construction Manager recognizes the necessity of a close and collaborative
working relationship with Owner and agrees: to furnish the best skill and judgment of its
organization in the performance of this Agreement; to provide Construction Manager's
knowledge, insight, ideas, experience and abilities relating to the planning of the construction of
the Project; to furnish efficient business administration and superintendence; and to arrange for an
adequate supply of workmen, material and equipment in order to complete the Work in an
expeditious and economical manner consistent with the interests and objectives of Owner, as made
known to Construction Manager. Construction Manager understands that it is Owner's intent to
construct the Project at a competitive cost and in the most expeditious manner consistent with
budgetary considerations. Accordingly, Construction Manager will devote its best efforts toward:
(i) managing the Projéct at the most cost-effective level possible consistent with good construction
practices, (ii) carrying out Owner's intent and the Contract Documents, and (iii) achieving the
most rapid and efficient construction and completion of the Project. Construction Manager will
bring to Owner's attention any possibilities for time or money savings that may present themselves
during the course of Construction Manager's performance under this Agreement and will confer
with Owner periodically in order to determine whether there are any areas where, by design
change or otherwise, costs may be reduced. Construction Manager shall not at any time or for any
reason accept for its own account from any Project employed vendor, consultant or Trade
Contractor gratuities, gifts (with a value greater than $50.00), trade discounts, rebates or
contributions (except as inay be applicable pursuant to Section 8.3 below). Construction Manager
shall not deal with (or recommend that Owner deal with) any firm in which Construction Manager
has any financial or other interest, or undertake any activity or employment which would or could
create a conflict of interest or compromise Construction Manager's professional judgment, or
prevent Construction Manager from serving the best interests of Owner. If Construction Manager
shall become aware of any facts are or may be in violation
that of the preceding sentence or shaII
have any financial or other interest in any firm with which Owner is dealing or proposes to deal in
connection with the Project, Construction Manager immediately shall advise Owner thereof in
writing. It shall be deemed a conflict of interest and a material breach of the terms of this
Agreement for Construction Manager to
employ at the Project or accept bids from Trade
Contractors employing, with respect to the Project, any known relatives (including in-laws) of any
of the officers, directors, executives, or Key Personnel of the Construction Manager assigned or to
be assigned to the Project. Any breach hereunder shall entitle Owner to terminate this.Agreement
pursuant to Section 14.3(x) hereof.
END OF SECTION.
EDC1687ThirdCMA FINAL 4
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NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 02/06/2023
ARTICLE m
(Construction Manager's Status and Duties)
3.1 Construction Manager accepts the of trust and confidence
relationship
established between it and Owner by this Agreement. Construction Manager shall coordinate,
manage and cause the Work to be performed in the most expeditious and economical manner
consistent with the interests of safety and Owner. Construction Manager shall cooperate with
Architect and Owner in furthering the interests of Owner and the Project. Construction Manager
understands that Owner is looking to Construction Manager to complete the Project on time,
within the price set forth for the GMP, and in strict accordance with the Contract Documents as
herein set forth.
3.2 With the exception of general conditions, protection, cleaning, rubbish
removal and other portions of the Work customarily performed Construction Manager's own
by
forces (which unless objected to by Owner shall be performed by Construction Manager's own
forces), all portions of the Work shall be performed and material and equipment supplied under
contracts ("Contracts") with trade contractors (who also may retain sub-tier trade contractors),
suppliers or vendors (hereafter, inclusive of all tiers, "Trade Contractors"). While such contracts
are herein referred to as "Contracts", contracts also may be entered into by Owner directly with
respect to work that is not the responsibility of Construction Manager hereunder; provided that any
such separate contractors shall be obligated to maintain labor harmony with Construction Manager
shall be responsible for the integration and coordination of such work by Owner's contractors
within the overall Project Construction Schedule and Trade Contractors shall comply in the same
manner and to the same extent as Trade Contractors with Constraction Manager's safety program
and be governed by substantially the same terms and conditions as is the Construction Manager
under the Contract Documents, including, without limitation, those relating to insurance and
waivers of subrogation. Construction Manager shall be solely responsible for any acts, errors or
omissions arising out of all Contracts entered into between Construction Manager and Trade
Contractors (and any contracts between Trade Contractors and their sub-tier trade contractors) for
Work on the Project, provided that Construction Manager shall have no design responsibility.
Construction Manager shall use its standärd form trade contract and purchase order in contracting
out the Work to Trade Contractors pursuant to this Agreement. Copies of the standard form trade
contract and purchase order are attached hereto as Exhibit "C". Before entering into a Contract,
Construction Manager shall notify Owner of any proposed material differences between the
provisions of the standard form trade contract attached as Exhibit C, and the terms of the Contract
that Construction Manager proposes to utilize, by black-line, rider and/or highlighted markup
showing all proposed changes, and Construction Manager shall not execute such Contract without
difference"
first obtaining Owner's prior written consent. For purposes hereof, the term "material
shall be deemed to mean changes to the Contract form that: (1) permit the Trade Contractor less
than strict compliance with the Contract Documents applicable to its performance; and/or (2) any
other difference that may liave time, cost, liability or other consequence to Owner. Copies of all
executed Contracts shall be promptly delivered to Owner after execution.
3.2.1 Each Contract to be entered into by Construction Manager in connection
with the Work shall contain a provision providing that, if this Agreement is terminated by Owner
EDC1687ThirdCMAFINAL 5
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pursuant to Article XIV, that Contract, at the option of Owner in its sole discretion, shall be
assigned by Construction Manager to Owner or to such other entity as Owner may direct. In such
event, Owner or its designees as of the date of assignment shall assume all of Construction
Manager's post-assignment obligations thereunder provided, however, that nothing contained
herein shall be deemed to release Construction Manager from liability to such Trade Contractor, or
to Owner or Owner's designees, with respect to claims arising from events occur
Preview
FILED: NEW YORK COUNTY CLERK 02/06/2023 02:45 PM INDEX NO. 155551/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 02/06/2023 CONSTRUCTION MANAGEMENT AGREEMENT 95* AGREEMENT dated as of March 31, 2016 by and between and Third, IlC care of ·3d - 7* Extell Development Company, having an office at 805 Avenue Floor, New York, NY 10017 (the "Owner"), and Gilbane Residential Construction, LLC with offices at 88 Pine Street - 27* Floor, New York, NY 10005 (the. "Construction Manager"). WI T N E S S E T H: 3'' WHEREAS, Owner is the owner of certain real property located at 1681-1693 Avenue located in Manhattan, New York (the project "Site"); and WHEREAS, Owner intends to develop and construct one 30-story structure above grade, including two roof bulkhead levels and two subgrade levels, containing commercial space on the first ad subgrade levels, with residential units on all other floors (the "Project"); and WHEREAS, Owner wishes to retain Construction Manager to provide certain pre- cons1ruction management services as described herein to assist in development of the Project on a Guaranteed Maximum Price ("GMP") basis, as and to the extent hereafter defined, as an at-risk construction manager using trade contractors as hereinafter provided; and WHEREAS, Construction Manager is willing to act in such capacity and cause to be provided through trade contractors or its own forces, as hereafter provided, all labor, material, equipment, tools and services required for the timely, lien free completion of the Project and otherwise perform its obligations hereunder; and WHEREAS, Owner has retained Beyer Blinder Belle Architects and Planners LLP ("Architect"); and also has engaged, either through the Architect or directly, structural, mechanical, electrical and other engineers, inspectors, agencies and consultants normally and customarily retained by architects or owners to design the elements or inspect the construction of "Architect" the Project. As used throughout this Agreement, shall be understood to refer to a particular Architect or all of the Project Architects, as the case may be, and when required by context, to other design consultants who collectively form Owner's design team and NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein and the sum of by Owner in hand paid to Construction Manager, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be legally bound, agree as follows: ARTICLE I (Contract Documents) "A" 11 The "Contract Documents", which are listed in Exhibit hereto, consist of: (i) this Agreement, together with all Exhibits; (ii) all addenda issued prior to, and all duly executed amendments (including Change Orders, as hereafter defined) and modifications (in EDC1687ThirdCMA FINAL 1 __... .. . . .. . , . . .. ... . . .. FILED: NEW YORK COUNTY CLERK 02/06/2023 02:45 PM INDEX NO. 155551/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 02/06/2023 both cases with attachments) issued after, execution of this Agreement; (iii) the Drawings; (iv) the Specifications; (v) approved shop drawings; (vi) the Guaranteed Maximum Price document A.' including all attachments thereto; and (vii) all other documents listed in Exhibit Each of the foregoing is an integral part of this Agreement and is as if attached hereto, In resolving any conflicts among the Contract Documents, the above listed order of priority shall control, with item (vi) having the overriding priority, except to the extent subsequently altered by a Change Order or modification; and within each category, the newer Contract Documents shall be given precedence. The Contract Documents expressly do not include documents such as the advertisement or invitation to bid, the instructions to bidders, sample forms, the Construction Manager's bid or portions of addenda relating to any of these or any other documents, unless specifically identified in Exhibit A. 1.1.1 A list of ali definitions used herein is attached hereto as Exhibit "B"hereof. 1.2 Construction Manager acknowledges that as of the execution of this Agreement, the Drawings, Specifications, and other documents listed in Exhibit A are not complete as of their respective dates indicated and will be subject to further revisions, refinements, and clarifications, as well as the issuance of additional Drawings, Specifications and documents in order to fully and completely reflect all components and details of the Project. 1.3 The intent of the Contract Documents is to include all items necessary for the proper and entire execution and completion of the Work (as hereafter defined). The Contract Documents are complementary, and what is required by one shall be as if required by all provided, however, that performance by Construction Manager shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them or as being necessary to produce the indicated results. 1.4 Construction Manager represents that it has visited the Site of the Work, become familiar with local conditions, including the labor market, under which the Work is to be performed and correlated personal observations with the requirements of the Contract Documents. 1.5 All Drawings, Specifications and copies thereof shall be furnished by Owner, are solely for Construction Manager's reference with respect to the Project, and shall be used for no other or different pmpose. Construction Manager has no ownership interest in the Drawings or Specifications. With the exception of one archival set that may be retained by Construction Manager, all Drawings and Specifications shall be suitably accounted for to Owner at completion of the Project. Submission or distribution to meet official regulatory requirements or for other purposes in connection with financing of the Project is not to be construed as publication in derogation of the respective ownership interests of Architect and Owner in the Drawings and Specifications. END OF SECTION. noc1687nDdCMA HNAL FILED: NEW YORK COUNTY CLERK 02/06/2023 02:45 PM INDEX NO. 155551/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 02/06/2023 ARTICLE H (Scope of the Work) 22 Construction Manager shall cause to be performed and provided through Trade Contractors, or its own forces with respect to general conditions work (as hereafter provided), all labor, material, equipment, tools and services (inclusive of hauling and disposing of all known contaminated (i.e. non-hazardous) soils designated Owner or its consultants but by exclusive of Hazardous Materials (as hereafter defined) or asbestos encapsulation, removal, transportation, hauling or disposal which is to be performed by and under the exclusive direction, supervision and control of others, but in all cases tracked, monitored and coordinated by Construction Manager) required for the complete construction of the Project in accordance with the terms of the Contract Documents and Applicable Law (the "Work"). 2.1.1 All Work shall be performed in a first class and workmanlike manner, and in strict accordance with the Contract Documents. In the event that Owner determines that Construction Manager is not pursuing the Work in a first class and workmanlike manner or in conformance with the Contract Documents, Owner shall so Construction notify Manager, in writing, who shall correct or commence to correct said or deficiency non-conformance within three (3) business days of delivery of such notice, or be deemed to be in material breach of this Agreement. . 2.2 Construction Manager shall use its best efforts, best skill and best judgment in performing its duties under this Agreement. All material and equipment furnished or installed into the Project by Construction Manager shall be new unless otherwise specified in the Contract efforts" skill" judgment" Documents. For the purpose of this Agreement, "best or "best or "best shall be deemed to mean those efforts that a qualified and diligent construction manager similar to Construction Manager would use to fulfill Owner's objectives as made known to Construction Manager, considering the high degree of trust and confidence Owner has placed in Construction Manager as an experienced and capable construction manager. Nothing contained in this Agreement shall be deemed to authorize or require Construction Manager to perform with its own forces any act that would constitute the rendering of profes sional services, such as the practice of architecture, engineering or laboratory testing; provided, however, that Construction Manager remains responsible for the performance of the Trade Contractors who retain design professionals undertaking portions of the Work, Such responsibility is expressly limited to Professional Liability Insurance recoveries on account of such design professionals. With the exception of the GMP referred to in this Agreement, the recommendations, advice, budgetary information and schedules to be furnished by. Construction Manager under this Agreement are for the sole use of Owner and shall not be deemed to be representations, warranties, or guarantees or constitute the performance of licensed professional services. Value engineering services provided by Construction Manager under this Agreement are advisory and do not constitute the performance of professional design services. Owner, with due diligence, will refer Construction Manager's value engineering efforts, questions, matters, inquiries and/or suggestions to the Architect or Owner's other design professionals and/or consultants, and Construction Manager shall have no liability to Owner, Architect, other design professionals or consultants for such value engineering suggestions. EDC1687TidrdCMA FINAL FILED: NEW YORK COUNTY CLERK 02/06/2023 02:45 PM INDEX NO. 155551/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 02/06/2023 2.3 Construction Manager recognizes the necessity of a close and collaborative working relationship with Owner and agrees: to furnish the best skill and judgment of its organization in the performance of this Agreement; to provide Construction Manager's knowledge, insight, ideas, experience and abilities relating to the planning of the construction of the Project; to furnish efficient business administration and superintendence; and to arrange for an adequate supply of workmen, material and equipment in order to complete the Work in an expeditious and economical manner consistent with the interests and objectives of Owner, as made known to Construction Manager. Construction Manager understands that it is Owner's intent to construct the Project at a competitive cost and in the most expeditious manner consistent with budgetary considerations. Accordingly, Construction Manager will devote its best efforts toward: (i) managing the Projéct at the most cost-effective level possible consistent with good construction practices, (ii) carrying out Owner's intent and the Contract Documents, and (iii) achieving the most rapid and efficient construction and completion of the Project. Construction Manager will bring to Owner's attention any possibilities for time or money savings that may present themselves during the course of Construction Manager's performance under this Agreement and will confer with Owner periodically in order to determine whether there are any areas where, by design change or otherwise, costs may be reduced. Construction Manager shall not at any time or for any reason accept for its own account from any Project employed vendor, consultant or Trade Contractor gratuities, gifts (with a value greater than $50.00), trade discounts, rebates or contributions (except as inay be applicable pursuant to Section 8.3 below). Construction Manager shall not deal with (or recommend that Owner deal with) any firm in which Construction Manager has any financial or other interest, or undertake any activity or employment which would or could create a conflict of interest or compromise Construction Manager's professional judgment, or prevent Construction Manager from serving the best interests of Owner. If Construction Manager shall become aware of any facts are or may be in violation that of the preceding sentence or shaII have any financial or other interest in any firm with which Owner is dealing or proposes to deal in connection with the Project, Construction Manager immediately shall advise Owner thereof in writing. It shall be deemed a conflict of interest and a material breach of the terms of this Agreement for Construction Manager to employ at the Project or accept bids from Trade Contractors employing, with respect to the Project, any known relatives (including in-laws) of any of the officers, directors, executives, or Key Personnel of the Construction Manager assigned or to be assigned to the Project. Any breach hereunder shall entitle Owner to terminate this.Agreement pursuant to Section 14.3(x) hereof. END OF SECTION. EDC1687ThirdCMA FINAL 4 FILED: NEW YORK COUNTY CLERK 02/06/2023 02:45 PM INDEX NO. 155551/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 02/06/2023 ARTICLE m (Construction Manager's Status and Duties) 3.1 Construction Manager accepts the of trust and confidence relationship established between it and Owner by this Agreement. Construction Manager shall coordinate, manage and cause the Work to be performed in the most expeditious and economical manner consistent with the interests of safety and Owner. Construction Manager shall cooperate with Architect and Owner in furthering the interests of Owner and the Project. Construction Manager understands that Owner is looking to Construction Manager to complete the Project on time, within the price set forth for the GMP, and in strict accordance with the Contract Documents as herein set forth. 3.2 With the exception of general conditions, protection, cleaning, rubbish removal and other portions of the Work customarily performed Construction Manager's own by forces (which unless objected to by Owner shall be performed by Construction Manager's own forces), all portions of the Work shall be performed and material and equipment supplied under contracts ("Contracts") with trade contractors (who also may retain sub-tier trade contractors), suppliers or vendors (hereafter, inclusive of all tiers, "Trade Contractors"). While such contracts are herein referred to as "Contracts", contracts also may be entered into by Owner directly with respect to work that is not the responsibility of Construction Manager hereunder; provided that any such separate contractors shall be obligated to maintain labor harmony with Construction Manager shall be responsible for the integration and coordination of such work by Owner's contractors within the overall Project Construction Schedule and Trade Contractors shall comply in the same manner and to the same extent as Trade Contractors with Constraction Manager's safety program and be governed by substantially the same terms and conditions as is the Construction Manager under the Contract Documents, including, without limitation, those relating to insurance and waivers of subrogation. Construction Manager shall be solely responsible for any acts, errors or omissions arising out of all Contracts entered into between Construction Manager and Trade Contractors (and any contracts between Trade Contractors and their sub-tier trade contractors) for Work on the Project, provided that Construction Manager shall have no design responsibility. Construction Manager shall use its standärd form trade contract and purchase order in contracting out the Work to Trade Contractors pursuant to this Agreement. Copies of the standard form trade contract and purchase order are attached hereto as Exhibit "C". Before entering into a Contract, Construction Manager shall notify Owner of any proposed material differences between the provisions of the standard form trade contract attached as Exhibit C, and the terms of the Contract that Construction Manager proposes to utilize, by black-line, rider and/or highlighted markup showing all proposed changes, and Construction Manager shall not execute such Contract without difference" first obtaining Owner's prior written consent. For purposes hereof, the term "material shall be deemed to mean changes to the Contract form that: (1) permit the Trade Contractor less than strict compliance with the Contract Documents applicable to its performance; and/or (2) any other difference that may liave time, cost, liability or other consequence to Owner. Copies of all executed Contracts shall be promptly delivered to Owner after execution. 3.2.1 Each Contract to be entered into by Construction Manager in connection with the Work shall contain a provision providing that, if this Agreement is terminated by Owner EDC1687ThirdCMAFINAL 5 . . FILED: NEW YORK COUNTY CLERK 02/06/2023 02:45 PM INDEX NO. 155551/2018 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 02/06/2023 pursuant to Article XIV, that Contract, at the option of Owner in its sole discretion, shall be assigned by Construction Manager to Owner or to such other entity as Owner may direct. In such event, Owner or its designees as of the date of assignment shall assume all of Construction Manager's post-assignment obligations thereunder provided, however, that nothing contained herein shall be deemed to release Construction Manager from liability to such Trade Contractor, or to Owner or Owner's designees, with respect to claims arising from events occur