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  • Antonio Espinosa v. Mac 60 Llc, Royal Home Improvements, Inc. Torts - Other (Labor Law) document preview
  • Antonio Espinosa v. Mac 60 Llc, Royal Home Improvements, Inc. Torts - Other (Labor Law) document preview
  • Antonio Espinosa v. Mac 60 Llc, Royal Home Improvements, Inc. Torts - Other (Labor Law) document preview
  • Antonio Espinosa v. Mac 60 Llc, Royal Home Improvements, Inc. Torts - Other (Labor Law) document preview
  • Antonio Espinosa v. Mac 60 Llc, Royal Home Improvements, Inc. Torts - Other (Labor Law) document preview
  • Antonio Espinosa v. Mac 60 Llc, Royal Home Improvements, Inc. Torts - Other (Labor Law) document preview
  • Antonio Espinosa v. Mac 60 Llc, Royal Home Improvements, Inc. Torts - Other (Labor Law) document preview
  • Antonio Espinosa v. Mac 60 Llc, Royal Home Improvements, Inc. Torts - Other (Labor Law) document preview
						
                                

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FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023 EXHIBIT P FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023 ROYAL CUSTOM HOMES. COMMERCIAL BUILDINGS AGREEMENT Agreement made this 3rd day of March, 2017 by and between MAC 60 LLC Owner and Royal Home Improvements d/b/a Royal Builders Inc, Manager. The Parties agree that Manager will manage the construction of the premises known as 2357 60* Street, Brooklyn, NY, 11204 (the "Premises") property. The management fee will be $250,000.00 and insurance of $50,000.00 annually which will be paid as follows: Deposit of $25,000 upon signing of contract. First annual payment of $50,000 for insurance when Dept of Building permits are issued. Balance to be paid monthly as the job progresses. Managers' responsibility will include the following: (1) Obtain quotes for the work to be completed. (2) Review quotes with Owner and negotiate on Owner's behalf for the best price. (3) Assign manager's employees as needed at the site. (4) Purchase all supplies necessary to properly maintain and operate the Premises. (5) Mamtain insurance for all workers at the Premises and insure all subcontractors maintain same. All liability policies shall name the Owner as additional insured. (6) Maintain an accurate set of books and orderly files, insurance policies, receipted bills, etc. Owner shall pay all costs associated with the construction including site manager fee and/or will reimburse Manager for monies advanced. Manager will provide receipts of payment to Owner. This agreement may be terminated by Owner with cause or by Manager for lack of payment upon days' twenty (20) notice. Management fee and insurance payments need to be paid up to date of termination Dated: March 3, 2017 Manager M 60 LLC Menachem Markovies 3004 Avenue L . Second Floor. Brooklyn NY 11210 . Tel 718.677.5641. Fax 718.677.3971 Email info@royalbuildersny.com FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023 EXHIBIT DefendantsExhibitA 11/18/21CZ ConsensusDSs 3 UliC·HM ? BE-T ET:'i f. . This documentis proudly endorsedby N MSFA 1 C@AA WI --.--½ y.c: .wrouse- "mm.t-e-t as.ver--e.sges:utr - ,em-nsear tr--re=men: r::WAmesc wr¬ter. c:2nwc=me:ness2: --::· Job Number f 1 Account Code: [ l This Agreement is made this 2181day of March, 2017, by and between the Ó‚NER: MAC 60 LLC 620 Foster Ave Suite 301 Brooklyn, NY 11230 and the CONSTRUCTOR: Royal Home Improvements Inc dba Royal Bullders inc 3004 Ave L Brooklyn, NY 11210 Tax identification number (TIN): 11-3431757 Contractor License No., if applicable: 10344 "Parties." at the The Owner and Constructor are collectively the Notice to the Parties shall be given above addresses. PROJECT: 2357 60th St Brooklyn, NY 11204 DESIGN PROFESSIONAL: [ l 1. THE WORK The Constructor shall fumish construction administration and management services and use the Constructors diligent efforts to perform the Work in an expeditious manner consistent with the Contract Documents. The Constructor shall provide all labor, materials, equipment. and services r=r="""ry to fulfill the Constructor's obEgations for the Project in conformance with this Agreement and the other Contract Documents. The Work shaB be completed in accordance with Exhibit E, "Estimated Time." Work.* Budget and Schedule of the The time allotted in Exhibit E shell deline the "Contract casse-a-a- short FennAgmementestneseowner andconstructor(cast orwork easm - amu.THis ass,siandame nnemsgr MAYHAVE8EENMoDIPtED FRoMTHEsTANDARoIANGumGE. sadaseportof ma"eneadmaa canbegeneragedthmugh eioconsensusoccusememn.P mease orthohapannilnghousertopriateneuxxcest rereachpndrtothecoatedullbin ene prefectonly.Youmayanir makecopiesofAngliseddorma=ana topm0esInOustconneeden fordisulbunon utththiscoenacLAnyether · unOBare 15117 prohibited. ... coNTENTsEcuRE1o:tDicFOFB-7CF8 FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023 2. COMPENSATION Owner shan compensate Constructor for Work performed on the basis of the Cost of the Work as allowed in article 9 of this Agreement, and Constructors Fee paid in proportion to the Work performed subject to adjustment as provided herein. Constructor's Fee shall be as follows, subject below· to adjustment provided Management fee of $250,000 will be paid monthly over an 18 month period. Insurance of $50,000 annually. $25,000 upon signing of contract and balance of $25,000 paid quarterly. Budget" The "Estimated to complete the Work is $[ ] ([ Î dollars) ("Estimated Budget"). The Estimated Budget is not a guaranteed maximum price for the Cost of the Work or Constructor's Fee. If Constructor becomes aware that the Estimated Budget or Contract Time is to be meam,ead, the Constructor shall promptly notify the Owner. Such notice will be given in writing prior to performing the Wbrk in excess of the Estimated Budget, and will include an estimate and explanation of the additional costs and time. 3. ADJUSTMENT IN CONSTRUCTOR'S FEE An adjustment in Constructors Fee shaA be made as follows: [ 1. 4. EXHIBITS The following attached exhibits are made part of this Agreement: EXHIBIT A: General Description of the Work, Approved plans to be provided prior to construction page(s). EXHIBIT 8: Existing Contract Documents, [ l page(s). EXHIBIT C: Progress Schedule, [ I page(s). EXHIBIT D: Altemates and Unit Prices, [ ] page(s). EXHIBIT E: Estimated Budget and Schedule of the Work. PARTIES' 5. REl..ATIONSHIP AND ETHICS The Parties each agree to proceed with the Project on the basis of mutual trust, good faith, and fair dealing. The Parties shall perform their obligations with integrity, other ensuring at a minimum that each: (a) avoids conflicts of interest and promptly discloses any to the or Party; and (b) warrants that it has not and shall not pay nor receive any contingent fees or gratuities to from the other Party, including its agents, officers, and employees, subcontractors, or otheis for whom they may be liable, to secure preferential treatment. 6. CONSTRUCTOR'S RESPONSIBILITIES The Constructor shall be responsible for supervision and coordination of the Work, including the construction means, methods, techniques, sequences, and procedures utilized, unless the Contract Documents give other specific instructions. 6.1. Except for permits and fees that are the responsibility of the Owner pursuant to this Agreement, the Constructor shall obtain all necessary permits, licenses, and renewals pertaining to the Work. 6.2. The Constructor shall pay all applicable taxes legally enacted when bids are received or negotiations concluded for the Work provided by the Constructor. 6.3. In the event that the Owner elects to perform work at the geographical area of the Project, ("Worksite") directly or by others retained by the Owner, the Constructor and Owner shall coordinate the activities of all forces at the Worksite and shall agree upon fair and reasonable schedules and operational procedures for Worksite activities. The Owner shall require each separate contractor to cooperate with the Constructor and assist with the coordination of activities and the review of construction schedules and operations. 6.4.in order to facilitate its responsibilities for completion of the Work in accordance with and as reasonably inferable from the Contract Documents, prior to commencing the Work, the Constructor ConsensusDoes" standantshort FormAgreementBetweenownerandConstnictor(Costor work Basis)- °2012.THis 235, oOCuMENT MAYHAVEBEENMODIRED FROMTHESTANDARo LANGuAGE, anda repostof sonbegenesated Gunugh theconsensuscoes platrorntPurchase permitstheusertoprintoneA0Atfact orthedocurnent PBtyIDthecontralitwilbinons $AISpch projectonly.YoumayonlyrnakecopiesorEnalizeddocuments topartiesMroct connection rordistnJulian Anyother withthiscornract. usesarestrictlyprohibRed. . CONTENT SECURE ID:1D7CF0FD-7CF6 FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023 ; shall examine and compare the drawings and specifications with information fumished by the Owner pursuant to section 7.1; relevant field measurements made by the Constructor; and any visible conditions at the Worksite affecting the Work. 6.5. COMPLIANCE WITH LAWS The Constructor shall comply with all laws. The Constructor shall be liable to the Owner for all loss, cost, or expense, attributable to any acts or omissions by the Constructor, its employees, subcontractors, and agents for failure to comply with laws, including fines, penalties, or corrective measures. 6.6. WARRANTY 6.6.1. The Work shall be executed in accordance with the Contract Documents in a workmanlike manner. The Constructor warrants that all materials and equipment shall be new unless otherwise specified, of good quality, in conformance with the Contract Documents, and free from defective workmanship and materials. The Constructor further warrants that the Work will be free from material defects not intrinsic in the design or materials required in the Contract Documents. caused by normal The Constructor's warranty does not include remedies for defects or damages wear and tear during normal usage, use for a purpose for which the Project was not intended, improper or insufficient maintenance, modifications performed by the Owner or others retained by Owner, or abuse. 6.6.2. If, prior to the Date of Substantial Completion and within one year after the date of Substantial Completion of the Work, any portion of the Work is found to be not in conformance with the Contract Documents ("Defective WorlC), the Owner shall promptly notify the Constructor in writing. Unless the Owner provides written acceptance of the condition, the Constructor shall and bear the expense of additional promptly correct the Defective Work at Its own cost and time services required for correction of any Defective Work for which it is responsible. 6.7. SAFETY The Constructor shall have overall responsibility for safety precautions and programs in the performance of the Work, except that the Constructors subcontractors shall also be responsible for the safety of persons or in the performance of their work, and for compliance with the property provisions of laws. The Constructor shall seek to avoid injury, loss, or damage to persons or property other persons at the Worksite; materials and by taking reasonable steps to protect its employees and equipment stored at on-site or off-site locations for use In the Work; and property located at the Worksite and adjacent to Work areas, whether or not the property is part of the Work. 6.8. HAZARDOUS MATERIALS A Hazardous Material is any substance or material identified now or in the future as hazardous under any federal, state, or local law or regulation, or any other substance or material which may be considered hazardous or otherwise subject to statutory or regulatory requirement goveming handling, disposal, or clean-up. The Constructor shall not be obligated to commence or continue work until any Hazardous Material discovered at the Worksite has been independent removed, or rendered or determined to be harmless by the Owner as certified by an govemment agency. If the Constructor incurs testing laboratory and approved by the appropriate additional costs or is delayed due to the presence or remediation of Hazardous Material, the Constructor shall be entitled to an equitable adjustment in the Contract Time. 6.9.MATERIALS BROUGHT TO THE WORKSITE The Constructor shall be responsible for the proper delivery, handling, application, storage, removal, and disposal of all materials and substances brought to the Worksite by the Constructor in accordance with the Contract Documents and used or consumed in the performance of the Work. 6.10. SUBMITTALS The Constructor shall submit to the Owner and Design Professional for review and approval all shop drawings, samples, product data, and similar submittals required by the Contract Documents. Submittals may be submitted in electronic form if required in accordance with consensueDoce" "" 2011THIs 235,slendeedShort FormAgreementSetweenowner and Constructor(cost of work Beate) begeneseledenough DocuMENr MAYHAVEasENMODIFlsDFROMTHEsTANoARDLANGuAGE.anda reportof n,a,nm¬man"cen . theconsensusDocs platfornLPurchaseoIthe documentpernestheusertopdntonecontsectforeachpeltyto thecontractwiOdnone projectonly.Youaneyonly makecopiesor AnaBanddocuinents f ord"nnadanto w penlesIndirectconnection iththiscontractAnyother unneare stdcAypichitilted. CONTENT sECuREID: tD7CFQFD.7CFB FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023 e .. . .. .. . . .. r... .. d . - . .. . . 1 a . * - . . -. . . .' p. .- : FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023 ConsensusDocs 200.2 and section 7.5. The Constructor shall be responsible to the Owner for the accuracy and conformity of its submittals to the Contract Documents. The Constructor shall prepare and deliver its submittals to the Owner and Design Professional in a manner consistent with the Schedule of the Work and in such time and sequence so as not to delay the performance of the Work or the work of the Owner and others retained by the Owner. The Constructor submittals shall identify in writing for each submittal all changes, deviations, or substitutions from the requirements of the Contract Documents. The approval of any Constructor submittal shall not be deemed to authorize deviations, substitutions, or changes in the requirements of the Contract Documents unless express written approval is obtained from the Owner specifically authorizing such deviation, substitution, or change. Further, the Owner shall not make any change, deviation, or substitution through the submittal process without specifically identifying and authorizing such deviation to the Constructor. The Owner shall be responsible for review and approval of submittals with reasonable promptness to avoid causing delay. The Constructor shall perform ali Work strictly in accordance with approved submittals. The Owner's approval does not relieve the Constructor from responsibility for Defective Work resulting from errors or omissions of any kind on the approved shop drawings. 6.11. WORKSITE CONDITIONS If the conditions encountered at the Worksite are (a) subsurface or other physical conditions which are materially different from those indicated in the Contract Documents, or (b) unusual and unknown physical conditions which are materially different from conditions ordinarily encountered and generally recognized as inherent in the Work provided for in the Contract Documents, the Constructor shall stop Work and give prompt written notice of the condition to the Owner and Design Professional. The Constructor shall not be required to perform any work relating to the unknown condition without the written mutual agreement of the Parties. 6.12. CUTTING, FITTING, AND PATCHING The Constructor shall perform cutting, fitting, and for the work patching necessary to coordinate the various parts of the Work and to prepare its Work of the Owner or others retained by the Owner. 6.13. CLEANING UP The Constructor shall regularly remove debris and waste materials at the Worksite resulting from the Work. Prior to discontinuing Wbrk in an area, the Constructor shall clean the area and remove all rubbish and its construction equipment, tools. machinery, waste, and surplus materials. The Constructor shall minimize and confine dust and debris resulting from construction activities. At the completion of the Work, the Constructor shall remove from the Worksite all construction equipment, tools, surplus materials, waste materials, and debris. 7. OWNER'S RESPONSIBILITIES Any information or services to be provided by the Owner shall be provided in a timely manner. 7.1. FINANCIAL INFORMATION Before commencing the Work and thereafter at the written request of the Constructor, the Owner shall provide the Constructor with evidence of Project financing. Evidence of such financing shall be a condition precedent to the Constructor's commencing or in Project continuing the Work. The Constructor shall be notified prior to any material change financing. 7.2. WORKSITE INFORMATION The Owner shall provide at the Owners expense and with reasonable promptness the following, which the Constructor shall be entitled to rely upon for its accuracy and completeness: 7.2.1. information describing the physical characteristics of the Worksite, including surveys, Worksite evaluations, legal descriptions, data, or drawings depicting existing conditions, subsurface, and environmental studies, reports, and investigations; ConsonauaDecs" 235,standardshort Fonn Agreementeatweenowner endConstuctor (Coetor work easts) ""2012. THis duough DocuMENTMAYHAVEsGENMoDIFIEDFROMTHESTANDARD LANGuAGE, anda seportof modMsagone canbegenesated , theconsensusDocs platform.Purchaseof thedocumentpamdtstheuserto printonecontractforeachpartytothecontractwittin one projectonly.Youmayonly makecopies of documents finalized f ordistribution t opartiesin w directconnection iththiscontracL Anyother usesarestricHyprohibited. .- CONTENT sECuREID: 1D7CF0FD.7CF8 FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023 7.2.2. tests, inspections, and other reports dealing with environmental matters, hazardous material and other existing conditions, including structural, mechanical, and chemical tests law· required by the Contract Documents or by and 7.2.3. any other information or services requested in writing by the Constructor that are relevant to the Constructors performance of the Work and under the Owners control. Legal descriptions shall include easements, title restrictions, boundaries, and zoning restrictions. Worksite descriptions shall include existing buildings and other construction and all other pertinent Worksite conditions. Adjacent property descriptions shall include structures, streets, sidewalks, aceys, and other features relevant to the Work. Utility details shall include available semices, lines at the Worksite and adjacent thereto, and connection points. The information shall include pubHe and private information, subsurface information, grades, contours, and elevations, drainage data, exact locations and dimensions, and benchmarks that can be used by the Constructor in laying out the Work. 7.3. MECHANICS AND CONSTRUCTION LIEN INFORMATION Within seven (7) Days after receiving the Constructors written request, the Owner shall provide the Constructor with the information necessary to give notice of or enforce mechanics lien rights and, where applicable, stop notices. This information shall include the Owners interest in the real property on which the Project is located and the record legal title. 7.4. BUILDING PERMIT, FEES, AND APPROVALS Except for those required of the Constructor pursuant to this Agreement, the Owner shall secure and pay for all other permits, approvals, and fees required for the development, construction, use, or occupancy of easements, assessments, permanent structures or for permanent changes in existing facilities, including the building permit. 7.S. DOCUMENTS IN ELECTRONIC FORM If the Owner requires that the Owner, Design Professional, and Constructor exchange documents and data in electronic or digital form, prior to any such exchange, the Owner, Design Professional, and Constructor shall agree on a written protocol goveming a(I exchanges in ConsensusDocs 200.2 or a separate addendum. 8. SUBCONTRACTS Work not performed by the Constructor with its own forces shall be performed by subcontractors. The Constructor agrees to bind every subcontractor and material supplier (and require every subcontractor to so bind its subcontractors and material suppBers) to all the provisions of this Agreement and the Contract Documents as they apply to the subcontractors and material suppRers portions of the Work. 9. COST OF THE WORK The Owner agrees to pay the Constructor for the Cost of the Work as defined in this article. This payment shall be in addition to the Constructors Fee. The Cost of the Work includes: 9.1. wages paid for labor in the direct employ of the Constructor in the performance of the Work; 9.2. : workers' 9.3. cost of all employee benefits and taxes including but not limited to compensation, unemployment compensation, social security, health, welfare, retirement, and other fringe benefits as required by law, labor agreements, or paid under the Constructors standard personnel policy, insofar as such costs are paid to employees of the Constructor who are included in the Cost of the Work in the two subsections immediately above; 9.4. reasonable transportation, travel, hotel, and moving expenses of the Constructors personnet Incurred in connection with the Work; ConsensusDocs" work Beale)""2012. THtS 236,Standardshort FannAgreement8etweesowner and Constnsctor(Coator DOCUMENT MAYHAVEBEENMODIREDFRoMTHEarANoARoLANGuAGE, anda niportcr numanas,==canbegenesoted duough theConsensusDocs penotstheeserto plelfonn.PurchasecI thedocument pring onecongnut f oreachpartyto thecontracttullbinone projectonly.YoumayonlymakecopiesoInnelizeddocurnantsforanehum toperGee indinut connettlensullbthiscentractAnyother " usesare eMcOy prohibited. CoNTENTsECUREID: 1D7CFeFDJCFS FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023 . . . .... -,,. * . " .. . .. . *. * a ... .J. . .: . .. FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023 9.S. cost of all materials, supplies, and equipment incorporated in the Work, including costs of inspection and testing if not provided by the Owner, transportation, storage, and handling; 9.6. payments made by the Constructor to subcontractors for Work performed under this Agreement; 9.7. cost, including transportation and maintenance of all materials, supplies, equipment, temporary facilities, and hand tools not owned by the workers that are used or consumed in the performance of the Work, less salvage value or residual value; and cost less salvage value on such items used, but not consumed, that remain the property of the Constructor, 9.8. rental charges of an necessary machinery and equipment, exclusive of hand tools owned by workers, used at the Worksite, whether rented from the Constructor or Others, including instaHation, repair and replacement, dismantling, removal, maintenance, transportation, and delivery costs. Rental from unrelated third parties shall be reimbursed at actual cost. Rentals from the Constructor or its affiliates, subsidiaries, or related parties shall be reimbursed at the prevaNing rates in the locality of the Worksite up to eighty-five percent (85%) of the value of the piece of equipment; 9.9. cost of the premiums for all insurance and surety bonds which the Constructor is required to procure or deems necessary, and approved by the Owner, including any additional premium incurred as a result of any increase In the Cost of the Work; 9.10. sales, use, gross receipts, or other taxes, tariffs, or duties related to the Work for which the Constructor is liable; 9.11. permits, fees, licenses, tests, and royalties; 9.12. repmduction costs, photographs, facsimile transmissions, long-distance telephone calis, data processing services, postage, express delivery charges, data transmission, telephone service, and computer-related costs at the Worksite, to the extent such items are used and consumed in the performance of the Work or are not capable of use after completion of the Work; 9.13. an water, power, and fuel costs necessary for the Work; 9.14. cost of removal of all non-hazardous substances, debris, and waste materials; 9.15. costs incurred due to an emergency affecting the safety of persons or property; 9.16. legal, mediation, and arbitration fees and costs, other than those arising from disputes between the Owner and the Constructor, reasonably and property resulting from the Constructors performance of the Work; 9.17. all costs directly incurred in the performance of the Work or in connection with the Project, and not included in the Constructor's Fee as set forth in article 2. which are reasonably Inferable from the Contract Documents. 9.18. DISCOUNTS All discounts for prompt payment shall accrue to the Owner to the extent such payments are made directly by the Owner. To the extent payments are made with funds of the Constructor, all cash discounts shall accrue to the Constructor. AH trade discounts, rebates, and refunds, and all retums from sale of surplus materials and equipment, shall be credited to the Cost of the Work. 9.19. FINANCIAL RECORDS Constructor shall keep such full and detailed accounts as are necessary for proper financial management under this Agreement. Constructor shall maintain a complete set of all books and records prepared or used by Constructor with respect to the Project. consensusDean- tas, standensshortFennAgreennantBetwesoowner endcensbuster (Costor work aests) -"ant. THis DocuMENTIIAAYHAVEsEENMODIFIED FROMTHEsrANDARDLANGuAGE,enda seportor n"a'aneasaaa cenhegeneruledthgough theconsensusDoespintfunn Purchasecr thedocurnant withimone pennitstheuserle printonecontractforeachputy tothecon1ract smogust emir.Yaumerennymemeamples arananmad fer distRudonGepam6emin documento dluec1aannecGon unhthleaentract.Anyolher prohndled. unamanen1stmoy coNTsNr sEcuAs ID:197cFOFD-7CF6 FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023 Owner shall be afforded access to all Constructors records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda, and similar data relating to this Agreement. Constructor shall preserve all such records for a period of three years after the final payment or longer where required by law. Constructor agrees to use reasonable skill and Judgment In the preparation of cost estimates, but does not warrant or guarantee them. 10. PAYMENT 10.1. PROGRESS PAYMENTS The Constructor shall submit to Owner and, if directed, the Design Professional a application for payment when contractor deems appropriate. . The application for payment shall consist of the Cost of the Work performed, including the cost of material suitably stored on the Worksite or at other locations approved by Owner, along with a proportionate share of the Constructors Fee. The Constructor shall also include an estimate of the additional costs necessary to complete the Work. Approval of payment applications for such stored materials stored off-site shan be conditioned upon submission by Constructor of bills of sale and applicable insurance or such other procedures satisfactory to Owner to establish Owners title to such materials, or otherwise to protect Owners interest, including transportation to the Worksite. Before submitting the next application for payment, Constructor shall fumish to Owner a statement accounting for the disbursement of funds received under the previous application. The extent of such statement shall be as agreed upon between the Parties. 10.2. Within seven (7) Days after receipt of each monthly application for payment, Owner shall give written notice to Constructor of Owners acceptance or rejection, in whole or in part, of such application for payment Within fifteen (15) Days after accepting such application, Owner shall pay directly to Constructor the appropriate amount for which application for payment is made, less amounts previously paid by Owner. If such application is rejected in whole or in part, Owner shall indicate the reasons for its rejection. If the Parties cannot agree on a revised amount, then, within fifteen (15) Days after its initial rejection in part of such application, Owner shall pay directly to Constructor the appropriate amount for those items not rejected by Owner, for which application for payment is made, less amounts previously paid by Owner. Those items rejected by Owner shall be due and payable when the reasons for the rejection have been removed. 10.3. ADJUSTMENT OF CONSTRUCTOR'S PAYMENT APPLICATION The Owner may adjust or reject a payment application or nullify a previously approved payment application, in whole or in part, as may reasonably be necessary to protect Owner from loss or damage based upon the following, to the extent that Constructor is responsible for such under this Agreement 10.3.1. the Constructors repeated failure to perform the Work as required by the Contract Documents; 10.3.2. loss or damage for which the Owner may be liable arising out of or relating to this Agreement and caused by the Constructor to the Owner or to others retained by the Owner to whom the Owner may be liable; 10.3.3. the Constructors failure to properly pay subcontractors or materials suppliers in connection with the Work following receipt of such payment from the Owner, 10.3.4. Defective Work not corrected in a timely fashion; 10.3.5. reasonable evidence of delay in performance of the Work such that the Work will not be completed within the Contract Time; and consensunDoes" (cost of worstassis) ""2011THis 235,standardshort FerraAgreementBetweenowner andCommtructor coCUMENTMAYHAvaSEENMOD1FIEo FROMTHEsTANDARoI.ANGUAGE. anda repoutof moslientlanscanbegeneratedthrough theConsensusDoes platform.Purchaseof thedomimentpermitslbe userto pdntonecontractforeachpoftyto thecontractwiminone projectonly.Youmayonlymakecopiesoflinalizeddocuments for fGahedlantopertiesin directconnecdon withthiscontract.Anyother .' usesarestrictlyprohibited. . CONTENTsECuREID: 1D7CF0FD-7CF6 . FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023 . " 10.3.6. unless arising from Owners non-payment for the performance of the Work, uninsured third-party claims involving the Constructor or reasonable evidence demonstrating that third-party claims are likely to be filed unless and until the Constructor fumishes the Owner with adequate security in the form of a surety bond, letter of credit, or other collateral or commitment which is sufficient to discharge such claims if established. No later than seven (7) Days after receipt of an application for payment, the Owner shall give written notice to the Constructor disapproving or nullifying it or a portion of it, specifying the reasons for the disapproval or nullification. When the above reasons for disapproving or nullifying an application for payment are removed, payment shall be made for the amounts previously withheld. 10.4. PAYMENT DELAY If for any reason not the fault of the Constructor, the Constructor does not receive a progress payment from the Owner within seven (7) Days after the time such payment is