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FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 07/19/2019
PLAZA
C O N S T R U C T I O N
NYY STEAK MANHATTAN, LLC ("NYY STEAK")
7 WEst 51" STREET
NEw YORK, NEw YoRK 10020
TRADE SUBCONTRACT
WORK"
"KiTCHEN EQUlPMENT
BARING INDUSTRIES, INC.
3249 S.W. 42* STREET
FT. LAUDERDALE, FLORIDA 33311
SUBMITTED To: BARING INDUSTRIES, INC.
MANNY ALVAREZ
SUBMITTED BY: PLAZA CONSTRUCTION CC RP.
MICHAEL J. GABBAY
DATE: MAY 13, 2013
FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 07/19/2019
.. I N D E X
PAGE
ARTICLE 1. Contract Price: Scope of the Work.................................................................. ...........2
ARTICLE 2. Certain Obligations of the Subcontractor to the
Owner, Construction Manager and Architect...............................................................3
ARTICLE 3. Terms of Payment......................................................................................................4
ARTICLE 4. Scheduling...............................................................................................................6
ARTICLE 5. Progress ...................................................................,,.............................................6
ARTICLE 6. Timing.................................................................................... ................................7
ARTICLE 7. Bond.......................................................................................................................7
. .
ARTICLE 8. . Subcontracts and Purchase Orders..................................................... .:......................7
ARTICLE 9. Certain Werranties and Guarantees..........................................................................,8
ARTICLE 10. Insurance.................................................................................................................8
ARTICLE 11. Default and Terraination.,...........................................................................................9
ARTICLE 12. No Waiver Except in Writing.............................................-.....................................11
ARTICLE 13. Assignments.,....................... ................................................................................ I l
ARTICLE 14. Merger......................................,...........................................................................12
ARTICLE 15. Amendments..........................................................................................................12
ARTICLE 16. Captions................................................................................................................12
ARTICLE 17. Notices ............. .....,.........,,..................................................................................12
ARTICLE 18. Miscellaneous ................................................,..,....................,..............,,...............12
ARTICLE 19, No Third Party Beneficiary.....,..............................,................................................,,12
LI5T OF EXHIBITS...................................................................................................... ....................14
NYY Steak. Rev.S.20.]3 initial Below: Plaza Const uction Su contractor
FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 07/19/2019
... .
TRADE SUBCONTRACT
THIS TRADE is entered into as of the 136
SUBCONTRACT day of May, 2013, by and between
BARING a its office at 3249 5,W. 42" FT.
INDUSTRIES, IN‰ corporation, having STREET, LAUDERDALEr
FLORIDA 33312 ("Subcontractor"), and PLAZA CONSTRUCTION CORP,, a NEW YORK corporation, having its
office AT 1065 AVENUE OF THE AMERICAs, NEW YORK, NEW YORK 10018 ("Construction Manager").
WHEREAS, Construction Manager has entered into an agreement (the "Agreement") with N___YY
STEAK MANHATTAN, LLC ("NYY STEAK"), ("Owner") to perform contracting services in connection with the
construction of NYY STEAK, at a site located at 7 WEST S1" STREETr NEW YORK, NEw YORK T0020
("Project"); and
..
WHEREAS, the Owner has also retained the services of SOSH, to provide licensed architectural and
consulting engineering services in connection with the Project (collectively, the "Architect"); and
. .
WHEREAS, Construction Manager, subject to Owner's approval, has awarded this Subcontract
("Subcontract"
or "Contract") as hereinafter defined, to the Subcontractor and the Subcontractor has agreed to
enter into this Subcontract, and to perform the Work required or described herein or reasonably inferable from
the Contract Documents in order to achieve the intended results;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants contained
herein, the Subcontractor and the Construction Manager agree as follows:
ARTICLE 1: Subcontract Price: Scope of the Work
1.1 Subject to all of the terms and conditions herein contained, Subcontractor shall receive the
total Contract Price of NINE HUNDRED NINETY THOUSAND doI{ars ($990,000,00) (the "Contract Price")
(which price is firm, not subject to escalation, and includes all applicable federal, state and municipal taxes
now or hereafter enacted) for the full and faithful performanceand completion of all of its obligations under
this Contract, 'including but not limited to the perforrñance and completian of all requirements of the Contract
Documents, as hereinafter defined, all Iobor necessary to complete such construction, all materials and
equipment (whether for temporary or permanent use) incorporated or to be incorporated in such construction,
all tools, equipment, supplies, superintendence, insurance, bonds, taxes and all other services and facilities
necessary to complete and perform the following (the "Work"):
Work- - "Exhibit C."
Fumish and Install Kitchen Equipment See Attached Scope of Work
REV.5,21.13 · 2 Initial Below PlazaC astruction Subcontractor
FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 07/19/2019
1.2 The Work
shan include, without limitation, the preparation, delivery and installation or
erection, as the case
may be, of materials and machinery, scaffolding, tools, equipment and all transportation
cartage, loading and hoisting, patterns, models, surveys, field measurements or other measurements, shop
drawings, temporary light and hear (unless otherwise provided by Construction Manager), protection of work
and labor from winter conditions, safety requirements, contributions to union funds and benefits, payment of
royalties, and all temporary relocations and construction. Without limiting the foregoing or the provisions of
the General Conditions, any Work shown on drawings and not mentioned in specifications, or described in
specifications and not shown on drawings, or included in the attached Scope of Work and not included in
either the drawings or the specifications, shall be included in the Work, The Subcontractor shall faithfully and
diligently undertake and complete the Work to comply in every respect with this Subcontract and the other
Contract Documents.
Documents"
L3 For purposes of this Contract, the "Contract shall consist of:
(a) This Trade Subcontract.
(b) General Conditions annexed hereto as Exhibit A.
(c) Listing of Plans and Specifications annexed hereto as Exhibit B.
(d) Subcontractor's Scope of Work annexed hereto as Exhibit C.
(e) Progress Schedule annexed hereto as Exhibit D.
(f) insurance Requirements annexed hereto as Exhibit E.
(g} Subcontractor's Payment/Performance Bonds annexed hereto as Exhibit F (if
requested by Construction Manager).
(h) Wage Rates / Unit Prices annexed hereto as Exhibit G.
(i) Alternate Prices annexed hereto as Exhibit H.
(j) Project Site Safety Program annexed hereto as Exhibit I.
(k) Shop Drawings and other submittals as, and to the extent, approved by the Architect.
ARTICLE 2: Certain Obligations of the Subcontractor
2.1 The Subcontractor affirms that it has visited the site and has become familiar with all
ce,ñditions at the site. Without limiting any other provision hereof, the Subcontractor shall perform the Work
and its obligations under this Contract in accordance with and subject to each of the provisions of the Contract
Documents to the fullest extent that each such provision is applicable to the Work. In the event of any
inconsistency between or among the terms and conditions of the Contract Documents, the rnore restrictive
provision or the greater quantity, as applied to the Subcontractor, shall govern.
2.2 The Subcontractor shall undertake and complete the Work under the direction and
supervision of and to the entire satisfaction of, the Construction Manager, the Architect, and the Owner, The
Construction Manager shall provide the Subcontractor with one set of drawings and specifications for the
Work. Additional copies of drawings and specifications will be provided at the Subcontractor's expense. At
the Subcontractor's expense (unless otherwise provided), the Architect shall provide such additional
specifically
drawings, details and explanations as may be necessary to detail and illustrate the Work, and the
Subcontractor shall conform to and abide by any such drawings, details and explanations.
2.3 The Subcontractor, if it subcontracts any part of the Work, shall enter into agreements
similar to this Contract with each such subcontractor and shall require that each such
substantially
subcontractor read and expressly agree in writing: (i) to be bound by all provisions of the Contract Documents
REV.5.21.13 3 Initial Below: PlazaC astruction Subcontractor
FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 07/19/2019
applicable to its Work, including but not limited to the payment provisions stated herein; (ii) to provide
indemnity to the Owner, Construction Manager and Architect as provided in the General Conditions; and (iii)
to name the Owner,. Constructign Manager and Architect as Additional Insured under Subcontractors general
liability policy and provide Certificates of insurance to that effect and otherwise reasonably satisfactory to
-- Construction Manager.
2.4 . Subcontractor, and its sub-subcontractors of any tier, shall attend coordination meetings as
and when scheduled by Construction Manager and shall participate (or prepare If required elsewhere herein)
and cooperate in the preparation of composite drawings detailing the interrelationship of the various
components of Subcontractor's work with the work to be performed by others.
ARTICLE 3: Terms of Payment
3.1 If the is making
Subcontractor satisfactory progress with the Work (in the Construction
Manager's reasonable opinion), is not in default under this Contract or under any other Contract Document, is
in compliance with aH the documentation requirements by this Contract and as stated below; the Construction
Manager shan pay the Subcontractor the proporNoñate amount of the funds received from the Owner for
approved Work and materials within(7) seven days after receipt of funds from the Owner. Construction
Manager wiH, subject to the General Conditions and Section 3.2 below, make monthly payments to the
Subcontractor equal to ninety (90%) percent of the value of Work properly performed during such month.
Subcontractor agrees to look solely to such funds received by Construction Manager from Owner or to the
Owner directly for payments due hereunder. Subcontractor acknowledges and agrees that in the event
payment is not made to Construction Manager for but not limited to default by the
any reason, including
Owner, or delays in
processing Owner's financing for the Project, Subcontractor shall not be entitled to
payment from Construction Manager until such time as Construction Manager shall in good faith have
exhausted all legal remedies to enforce such payment from Owner without, in any fashion limiting, impairing
Subcontractor's lien rights under applicable law. Retention shall be paid to the Subcontractor in accordance
with the General Conditions as and when released by Owner, less any amounts applied to cure any default
by Subcontractor under this Contract,
3.2 In order to receive any payment for the Work, the Subcontractor must comply with the
terms and conditions of the Contract Documents and must furnish with each Application for Payment the
following documentation or such other information as may be required by Construction Manager or Owner,
a. partial waivers of liens from Subcontractor, its Sub-Subcontractors and materialmen;
b, an affidavit warranting that an Work for which payments have been previously
made by Construction Manager are free and clear of liens, claims, securify
interests or encumbrances;
c. evidence of equipment purchases, rentals and other detailed support as the
Construction Manager may reasonably require;
d. evidence of stored material (if any) including but not limited to:
i. a ·bill of sale and other documentation satisfactory in form and
substance to Construction Manager, Owner (and Owner's Lender).
ii. a written list identifying each location where materials are stored off
the Project site and the value of materials at each focation.
iii. evidence that Subcontractor has procured insurance satisfactory to the
Construction Manager and Owner for materials stored off the Project site
in an amount not less than the full replacement value thereof; and
e. evidence to support the reasonableness of the Schedule of values.
REV.521.I3 4 Initial Below: PlazaCoastruction Subcontractor
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NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 07/19/2019
3.3 a. Notwithstanding anything to the contrary in this any Contract or the existence of
performance or labor or material payment bond, is hereby empowered
the Construction Manager
to withhold
from the S.ubcontractor an amount, equal of the Construction Manager
in the opinion to the amounts necessary
to complete the entire Work, (or any part thereof), to compensate Construction Manager for any
necessary
unexcused delay on the part of Subcontractor, or necessary to pay and fully discharge any claims or liens
arising out of the Work performed under this Contract that may arise and be unpaid, for which, if established,
the Construction Manager or the Owner rnay become liable. If any such obligations, claims or liens exceed
the amount of the Contract Price then unpaid, or arise after the full Contract Price has been paid or otherwise
satisfied in accordance with and conditions
sub¼ct to the terms hereof, the Subcontractor,
and imrnediately
upon demand, shall
pay to the or
Construction
Owner, as the case
Manager may be, all monies that the
Construction Manager or Owner may have paid or become obligated to pay to discharge such obligations,
liens or claims with respect to the Pro ject. In addition, Construction Manager may withhold payment due to
the:
i, unsatisfactory or disputed job progress;
ii. defective work not remedied;
iii. failure to carry out the Work in accordance with the Contract Documents; .
iv, failure of the Subcontractor to make timely payments for labor including collectively
bargained fringe benefit contributions, payroll taxes and insurance;
v. damage to Construction Manager, Owner or another .subcontractor or material
supplier;
vi. reasonable evidence that the Work cannot be completed for the unpaid balance of
the Contract Price;
vii. reasonable evidence that the Work will not be completed within the Contract Time and
that the unpaid balance would not be adequate to cover the cost of damages for the
anticipated delay;
viii. third party claims or liens filed or reasonable evidence indicating probable filing of
claims or liens, unless security acceptable to the Owner is provided by the Construction
Manager;
ix. Subcontractor's failure to furnish any inforrnation required by the Contract Documents;
x. failure to provide evidence that Subcontractor's insurance is in effect in accordance
with this Contract;
xi. failure of Subcontractor to make timely payments to its Sub-Subcontractors and mqterial
suppliers;
xii. erroneous estimates by Subcontractor of the value of the Work performed; or
xiii. material safety violations by the Subcontractor or violations of other legal requirements,
b. Subcontractor shall be responsible for making payment to its Sub-Subcontractors and materialmen
within seven (7) days of receipt of payment from Construction Manager, and shall (upon request) provide
evidence to Construction Manager of such payments.
3.4 The Subcontractor
expressly agrees that the Contract Price includes (a) aR Work provided
. . for in the drawings and
specifications, together with all work reasonably inferable therefrom, and (b) all
increases in cost, foreseen or unforeseen, including, without limiting the generality of the foregoing, taxes,
IGV.S.2L13 5 Initial Below: PlazaConstruction Subcontractor
C
FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 07/19/2019
labor and the cost of all of which is to be borne All loss or damage
materials, solely by the Subcontractor,
arising from any of the Work through unforeseen or unusual obstructions, difficulties or delays which may be
encountered in the prosecution of same or through the action of the elements shall be borne by the
Subcontractor. It is mutually agreed between the parties hereto that no payment made under this Contract
shall be conclusive evidence of the performance of this Contract by Subcontractor, either wholly or in part, nor
shall it be construed to be an acceptance of defective Work or materials, or an approval of any of the items in
any requisitions made or invoice rendered.
invoices All
or requests for payments must be presented in writing
in such form as may be required
by Construction Manager. Provided payments are made to subcontractor as
provided for hereunder, Subcontractor shall pay all costs necessary for the completion of the Work in
accordance with the Contract Documents.
3.5 Subcontractor shall use the sums advanced to it pursuant to this Article 3 solely for the
purpose of performance of the Work
construction, and
furnishing,the equipping and of the Project in
accordance with the Contract Any and all funds paid to Subcontractor
Documents. hereunder are hereby
declared to constitute trust funds in the hands of Subcontractor, to be applied before application to any other
purpose to the payment of: (a) claims of subcontractors, subdaborers, materialmen or other entities perforrMng
work and employed by Subcontractor, (b) to daims for utilities furnished and taxes imposed, and to the
payment of premiums on surely bonds and other bonds filed and premiums on insurance accruing during the
construction oFthe Work, and (c) any indemnity obligations of Subcontractor hereunder.
3.6 In the event changes or extras to this Contract ore authorized pursuant to the General
Conditions annexed hereto, Subcontractor shall be entitled to no more than fifteen percent (15%) to cover
overhead, supervision, small tools and profit. . . .
ARTICLE 4: Scheduling
Concurrent with the execution of this Subcontract, the Subcontractor shall give the construction
Manager a proposed detailed time andschedule, manpower
providing for completion of the Work within the
time provided for on the Progress Schedule annexed hereto as Exhibit D, which, in the- Subcontractor's
reasonable opinion, is adequate and sufficient to aHow completion of the Project by the date specified by
Construction Manager, taking into account the work of all other subcontractors necessary to complete the
Project. At the Construction Manager's request, Subcontractor shall revise the schedule approved by the
Construction Manager in accordance with the time and place requirements of the Project as reasonably
determined by Construction Manager in its sole and absolute discretion. The Construction Manager shall use
the above referenced schedule in preparing an integrated Progress Schedule for the Project listing the
sequence and dates for completion of the various segments of the Work. The Subcontractor shall complete the
Work in accordance with the Progress Schedule, including any revisions thereto provided by Construction
Manager. The Construction Manager exclusively shall control scheduling, including the periodic updating
thereof, if any, and the Subcontractor shall comply therewith. The Construction Manager shall have the right
to schedule other work at the same time and in. the same areas as the Subcontractor's Work. The .
subcontractors'
Subcontractor shall coordinate its Work
any with other work in such manner as the
Construction Manager may direct to avoid conflict or interference with such work of others, shall participate in
the preparation of coordinated drawings of congested areas and shall conform the Work to the work of other
subcontractors to prevent discrepancies (and to avoid unnecessary cutting or patching) with contiguous work,
At its sole discretion, the Construction Manager may schedule Work during a time of, and from time to time
during, winter conditions. The determination of when winter conditions exist shall rest exdusively with the
Construction Manager.
ARTICLE 5: Progress
5.1 The Subcontractor shall keep itself informed at all times of the progress of the Work, and of
the progress of others whose
may affect, work may or who be affected by, its progress. At the Construction
Manager's request, the Subcontractor shall inform the Construction materials on hand, Manager about
progress made in the manufacturing and fabricating of materials for the Work, or any other matters relating to
the condition or progress of the Work. The Construction Manager, Owner's representatives and the Architect
REV.5.21,13 6 Initial Below: PlazaCi;astmotion Subcontractor
FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 07/19/2019
at all times shall have free access to the office, shops and yards of the Subcontractor to verify any information
about the Work given by the Subcontractor.
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FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 07/19/2019 PLAZA C O N S T R U C T I O N NYY STEAK MANHATTAN, LLC ("NYY STEAK") 7 WEst 51" STREET NEw YORK, NEw YoRK 10020 TRADE SUBCONTRACT WORK" "KiTCHEN EQUlPMENT BARING INDUSTRIES, INC. 3249 S.W. 42* STREET FT. LAUDERDALE, FLORIDA 33311 SUBMITTED To: BARING INDUSTRIES, INC. MANNY ALVAREZ SUBMITTED BY: PLAZA CONSTRUCTION CC RP. MICHAEL J. GABBAY DATE: MAY 13, 2013 FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 07/19/2019 .. I N D E X PAGE ARTICLE 1. Contract Price: Scope of the Work.................................................................. ...........2 ARTICLE 2. Certain Obligations of the Subcontractor to the Owner, Construction Manager and Architect...............................................................3 ARTICLE 3. Terms of Payment......................................................................................................4 ARTICLE 4. Scheduling...............................................................................................................6 ARTICLE 5. Progress ...................................................................,,.............................................6 ARTICLE 6. Timing.................................................................................... ................................7 ARTICLE 7. Bond.......................................................................................................................7 . . ARTICLE 8. . Subcontracts and Purchase Orders..................................................... .:......................7 ARTICLE 9. Certain Werranties and Guarantees..........................................................................,8 ARTICLE 10. Insurance.................................................................................................................8 ARTICLE 11. Default and Terraination.,...........................................................................................9 ARTICLE 12. No Waiver Except in Writing.............................................-.....................................11 ARTICLE 13. Assignments.,....................... ................................................................................ I l ARTICLE 14. Merger......................................,...........................................................................12 ARTICLE 15. Amendments..........................................................................................................12 ARTICLE 16. Captions................................................................................................................12 ARTICLE 17. Notices ............. .....,.........,,..................................................................................12 ARTICLE 18. Miscellaneous ................................................,..,....................,..............,,...............12 ARTICLE 19, No Third Party Beneficiary.....,..............................,................................................,,12 LI5T OF EXHIBITS...................................................................................................... ....................14 NYY Steak. Rev.S.20.]3 initial Below: Plaza Const uction Su contractor FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 07/19/2019 ... . TRADE SUBCONTRACT THIS TRADE is entered into as of the 136 SUBCONTRACT day of May, 2013, by and between BARING a its office at 3249 5,W. 42" FT. INDUSTRIES, IN‰ corporation, having STREET, LAUDERDALEr FLORIDA 33312 ("Subcontractor"), and PLAZA CONSTRUCTION CORP,, a NEW YORK corporation, having its office AT 1065 AVENUE OF THE AMERICAs, NEW YORK, NEW YORK 10018 ("Construction Manager"). WHEREAS, Construction Manager has entered into an agreement (the "Agreement") with N___YY STEAK MANHATTAN, LLC ("NYY STEAK"), ("Owner") to perform contracting services in connection with the construction of NYY STEAK, at a site located at 7 WEST S1" STREETr NEW YORK, NEw YORK T0020 ("Project"); and .. WHEREAS, the Owner has also retained the services of SOSH, to provide licensed architectural and consulting engineering services in connection with the Project (collectively, the "Architect"); and . . WHEREAS, Construction Manager, subject to Owner's approval, has awarded this Subcontract ("Subcontract" or "Contract") as hereinafter defined, to the Subcontractor and the Subcontractor has agreed to enter into this Subcontract, and to perform the Work required or described herein or reasonably inferable from the Contract Documents in order to achieve the intended results; NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants contained herein, the Subcontractor and the Construction Manager agree as follows: ARTICLE 1: Subcontract Price: Scope of the Work 1.1 Subject to all of the terms and conditions herein contained, Subcontractor shall receive the total Contract Price of NINE HUNDRED NINETY THOUSAND doI{ars ($990,000,00) (the "Contract Price") (which price is firm, not subject to escalation, and includes all applicable federal, state and municipal taxes now or hereafter enacted) for the full and faithful performanceand completion of all of its obligations under this Contract, 'including but not limited to the perforrñance and completian of all requirements of the Contract Documents, as hereinafter defined, all Iobor necessary to complete such construction, all materials and equipment (whether for temporary or permanent use) incorporated or to be incorporated in such construction, all tools, equipment, supplies, superintendence, insurance, bonds, taxes and all other services and facilities necessary to complete and perform the following (the "Work"): Work- - "Exhibit C." Fumish and Install Kitchen Equipment See Attached Scope of Work REV.5,21.13 · 2 Initial Below PlazaC astruction Subcontractor FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 07/19/2019 1.2 The Work shan include, without limitation, the preparation, delivery and installation or erection, as the case may be, of materials and machinery, scaffolding, tools, equipment and all transportation cartage, loading and hoisting, patterns, models, surveys, field measurements or other measurements, shop drawings, temporary light and hear (unless otherwise provided by Construction Manager), protection of work and labor from winter conditions, safety requirements, contributions to union funds and benefits, payment of royalties, and all temporary relocations and construction. Without limiting the foregoing or the provisions of the General Conditions, any Work shown on drawings and not mentioned in specifications, or described in specifications and not shown on drawings, or included in the attached Scope of Work and not included in either the drawings or the specifications, shall be included in the Work, The Subcontractor shall faithfully and diligently undertake and complete the Work to comply in every respect with this Subcontract and the other Contract Documents. Documents" L3 For purposes of this Contract, the "Contract shall consist of: (a) This Trade Subcontract. (b) General Conditions annexed hereto as Exhibit A. (c) Listing of Plans and Specifications annexed hereto as Exhibit B. (d) Subcontractor's Scope of Work annexed hereto as Exhibit C. (e) Progress Schedule annexed hereto as Exhibit D. (f) insurance Requirements annexed hereto as Exhibit E. (g} Subcontractor's Payment/Performance Bonds annexed hereto as Exhibit F (if requested by Construction Manager). (h) Wage Rates / Unit Prices annexed hereto as Exhibit G. (i) Alternate Prices annexed hereto as Exhibit H. (j) Project Site Safety Program annexed hereto as Exhibit I. (k) Shop Drawings and other submittals as, and to the extent, approved by the Architect. ARTICLE 2: Certain Obligations of the Subcontractor 2.1 The Subcontractor affirms that it has visited the site and has become familiar with all ce,ñditions at the site. Without limiting any other provision hereof, the Subcontractor shall perform the Work and its obligations under this Contract in accordance with and subject to each of the provisions of the Contract Documents to the fullest extent that each such provision is applicable to the Work. In the event of any inconsistency between or among the terms and conditions of the Contract Documents, the rnore restrictive provision or the greater quantity, as applied to the Subcontractor, shall govern. 2.2 The Subcontractor shall undertake and complete the Work under the direction and supervision of and to the entire satisfaction of, the Construction Manager, the Architect, and the Owner, The Construction Manager shall provide the Subcontractor with one set of drawings and specifications for the Work. Additional copies of drawings and specifications will be provided at the Subcontractor's expense. At the Subcontractor's expense (unless otherwise provided), the Architect shall provide such additional specifically drawings, details and explanations as may be necessary to detail and illustrate the Work, and the Subcontractor shall conform to and abide by any such drawings, details and explanations. 2.3 The Subcontractor, if it subcontracts any part of the Work, shall enter into agreements similar to this Contract with each such subcontractor and shall require that each such substantially subcontractor read and expressly agree in writing: (i) to be bound by all provisions of the Contract Documents REV.5.21.13 3 Initial Below: PlazaC astruction Subcontractor FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 07/19/2019 applicable to its Work, including but not limited to the payment provisions stated herein; (ii) to provide indemnity to the Owner, Construction Manager and Architect as provided in the General Conditions; and (iii) to name the Owner,. Constructign Manager and Architect as Additional Insured under Subcontractors general liability policy and provide Certificates of insurance to that effect and otherwise reasonably satisfactory to -- Construction Manager. 2.4 . Subcontractor, and its sub-subcontractors of any tier, shall attend coordination meetings as and when scheduled by Construction Manager and shall participate (or prepare If required elsewhere herein) and cooperate in the preparation of composite drawings detailing the interrelationship of the various components of Subcontractor's work with the work to be performed by others. ARTICLE 3: Terms of Payment 3.1 If the is making Subcontractor satisfactory progress with the Work (in the Construction Manager's reasonable opinion), is not in default under this Contract or under any other Contract Document, is in compliance with aH the documentation requirements by this Contract and as stated below; the Construction Manager shan pay the Subcontractor the proporNoñate amount of the funds received from the Owner for approved Work and materials within(7) seven days after receipt of funds from the Owner. Construction Manager wiH, subject to the General Conditions and Section 3.2 below, make monthly payments to the Subcontractor equal to ninety (90%) percent of the value of Work properly performed during such month. Subcontractor agrees to look solely to such funds received by Construction Manager from Owner or to the Owner directly for payments due hereunder. Subcontractor acknowledges and agrees that in the event payment is not made to Construction Manager for but not limited to default by the any reason, including Owner, or delays in processing Owner's financing for the Project, Subcontractor shall not be entitled to payment from Construction Manager until such time as Construction Manager shall in good faith have exhausted all legal remedies to enforce such payment from Owner without, in any fashion limiting, impairing Subcontractor's lien rights under applicable law. Retention shall be paid to the Subcontractor in accordance with the General Conditions as and when released by Owner, less any amounts applied to cure any default by Subcontractor under this Contract, 3.2 In order to receive any payment for the Work, the Subcontractor must comply with the terms and conditions of the Contract Documents and must furnish with each Application for Payment the following documentation or such other information as may be required by Construction Manager or Owner, a. partial waivers of liens from Subcontractor, its Sub-Subcontractors and materialmen; b, an affidavit warranting that an Work for which payments have been previously made by Construction Manager are free and clear of liens, claims, securify interests or encumbrances; c. evidence of equipment purchases, rentals and other detailed support as the Construction Manager may reasonably require; d. evidence of stored material (if any) including but not limited to: i. a ·bill of sale and other documentation satisfactory in form and substance to Construction Manager, Owner (and Owner's Lender). ii. a written list identifying each location where materials are stored off the Project site and the value of materials at each focation. iii. evidence that Subcontractor has procured insurance satisfactory to the Construction Manager and Owner for materials stored off the Project site in an amount not less than the full replacement value thereof; and e. evidence to support the reasonableness of the Schedule of values. REV.521.I3 4 Initial Below: PlazaCoastruction Subcontractor FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 07/19/2019 3.3 a. Notwithstanding anything to the contrary in this any Contract or the existence of performance or labor or material payment bond, is hereby empowered the Construction Manager to withhold from the S.ubcontractor an amount, equal of the Construction Manager in the opinion to the amounts necessary to complete the entire Work, (or any part thereof), to compensate Construction Manager for any necessary unexcused delay on the part of Subcontractor, or necessary to pay and fully discharge any claims or liens arising out of the Work performed under this Contract that may arise and be unpaid, for which, if established, the Construction Manager or the Owner rnay become liable. If any such obligations, claims or liens exceed the amount of the Contract Price then unpaid, or arise after the full Contract Price has been paid or otherwise satisfied in accordance with and conditions sub¼ct to the terms hereof, the Subcontractor, and imrnediately upon demand, shall pay to the or Construction Owner, as the case Manager may be, all monies that the Construction Manager or Owner may have paid or become obligated to pay to discharge such obligations, liens or claims with respect to the Pro ject. In addition, Construction Manager may withhold payment due to the: i, unsatisfactory or disputed job progress; ii. defective work not remedied; iii. failure to carry out the Work in accordance with the Contract Documents; . iv, failure of the Subcontractor to make timely payments for labor including collectively bargained fringe benefit contributions, payroll taxes and insurance; v. damage to Construction Manager, Owner or another .subcontractor or material supplier; vi. reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Price; vii. reasonable evidence that the Work will not be completed within the Contract Time and that the unpaid balance would not be adequate to cover the cost of damages for the anticipated delay; viii. third party claims or liens filed or reasonable evidence indicating probable filing of claims or liens, unless security acceptable to the Owner is provided by the Construction Manager; ix. Subcontractor's failure to furnish any inforrnation required by the Contract Documents; x. failure to provide evidence that Subcontractor's insurance is in effect in accordance with this Contract; xi. failure of Subcontractor to make timely payments to its Sub-Subcontractors and mqterial suppliers; xii. erroneous estimates by Subcontractor of the value of the Work performed; or xiii. material safety violations by the Subcontractor or violations of other legal requirements, b. Subcontractor shall be responsible for making payment to its Sub-Subcontractors and materialmen within seven (7) days of receipt of payment from Construction Manager, and shall (upon request) provide evidence to Construction Manager of such payments. 3.4 The Subcontractor expressly agrees that the Contract Price includes (a) aR Work provided . . for in the drawings and specifications, together with all work reasonably inferable therefrom, and (b) all increases in cost, foreseen or unforeseen, including, without limiting the generality of the foregoing, taxes, IGV.S.2L13 5 Initial Below: PlazaConstruction Subcontractor C FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 07/19/2019 labor and the cost of all of which is to be borne All loss or damage materials, solely by the Subcontractor, arising from any of the Work through unforeseen or unusual obstructions, difficulties or delays which may be encountered in the prosecution of same or through the action of the elements shall be borne by the Subcontractor. It is mutually agreed between the parties hereto that no payment made under this Contract shall be conclusive evidence of the performance of this Contract by Subcontractor, either wholly or in part, nor shall it be construed to be an acceptance of defective Work or materials, or an approval of any of the items in any requisitions made or invoice rendered. invoices All or requests for payments must be presented in writing in such form as may be required by Construction Manager. Provided payments are made to subcontractor as provided for hereunder, Subcontractor shall pay all costs necessary for the completion of the Work in accordance with the Contract Documents. 3.5 Subcontractor shall use the sums advanced to it pursuant to this Article 3 solely for the purpose of performance of the Work construction, and furnishing,the equipping and of the Project in accordance with the Contract Any and all funds paid to Subcontractor Documents. hereunder are hereby declared to constitute trust funds in the hands of Subcontractor, to be applied before application to any other purpose to the payment of: (a) claims of subcontractors, subdaborers, materialmen or other entities perforrMng work and employed by Subcontractor, (b) to daims for utilities furnished and taxes imposed, and to the payment of premiums on surely bonds and other bonds filed and premiums on insurance accruing during the construction oFthe Work, and (c) any indemnity obligations of Subcontractor hereunder. 3.6 In the event changes or extras to this Contract ore authorized pursuant to the General Conditions annexed hereto, Subcontractor shall be entitled to no more than fifteen percent (15%) to cover overhead, supervision, small tools and profit. . . . ARTICLE 4: Scheduling Concurrent with the execution of this Subcontract, the Subcontractor shall give the construction Manager a proposed detailed time andschedule, manpower providing for completion of the Work within the time provided for on the Progress Schedule annexed hereto as Exhibit D, which, in the- Subcontractor's reasonable opinion, is adequate and sufficient to aHow completion of the Project by the date specified by Construction Manager, taking into account the work of all other subcontractors necessary to complete the Project. At the Construction Manager's request, Subcontractor shall revise the schedule approved by the Construction Manager in accordance with the time and place requirements of the Project as reasonably determined by Construction Manager in its sole and absolute discretion. The Construction Manager shall use the above referenced schedule in preparing an integrated Progress Schedule for the Project listing the sequence and dates for completion of the various segments of the Work. The Subcontractor shall complete the Work in accordance with the Progress Schedule, including any revisions thereto provided by Construction Manager. The Construction Manager exclusively shall control scheduling, including the periodic updating thereof, if any, and the Subcontractor shall comply therewith. The Construction Manager shall have the right to schedule other work at the same time and in. the same areas as the Subcontractor's Work. The . subcontractors' Subcontractor shall coordinate its Work any with other work in such manner as the Construction Manager may direct to avoid conflict or interference with such work of others, shall participate in the preparation of coordinated drawings of congested areas and shall conform the Work to the work of other subcontractors to prevent discrepancies (and to avoid unnecessary cutting or patching) with contiguous work, At its sole discretion, the Construction Manager may schedule Work during a time of, and from time to time during, winter conditions. The determination of when winter conditions exist shall rest exdusively with the Construction Manager. ARTICLE 5: Progress 5.1 The Subcontractor shall keep itself informed at all times of the progress of the Work, and of the progress of others whose may affect, work may or who be affected by, its progress. At the Construction Manager's request, the Subcontractor shall inform the Construction materials on hand, Manager about progress made in the manufacturing and fabricating of materials for the Work, or any other matters relating to the condition or progress of the Work. The Construction Manager, Owner's representatives and the Architect REV.5.21,13 6 Initial Below: PlazaCi;astmotion Subcontractor FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 07/19/2019 at all times shall have free access to the office, shops and yards of the Subcontractor to verify any information about the Work given by the Subcontractor.