Preview
Hearing Date: 3/20/2024 9:30 AM
Location: Court Room 1504
Judge: Brennan, Daniel Patrick
FILED
11/21/2023 10:09 AM
IRIS Y. MARTINEZ
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS CIRCUIT CLERK
CHANCERY DEPARTMENT, MECHANICS LIEN SECTION COOK COUNTY, IL
FILED DATE: 11/21/2023 10:09 AM 2023CH09565
2023CH09565
Calendar, 54
CALDWELL PLUMBING CO., ) 25295629
)
Plaintiff, )
)
v. ) No. 2023CH09565
)
JAMES MCHUGH CONSTRUCTION CO., )
19 N. MAY LLC and CIBC BANK USA, )
)
Defendants. )
COMPLAINT FOR FORECLOSURE OF
MECHANICS LIEN AND OTHER RELIEF
COUNT I - MECHANICS LIEN
1. At all times hereinafter mentioned, Plaintiff, CALD WELL PLUMBING CO., was, and
still is, an Illinois corporation licensed and registered to do business in Illinois with its
principal place of business in Wheaton, DuPage County, Illinois, and was engaged in the
business of general plumbing contracting.
2. At all times hereinafter mentioned, Defendant, JAMES MCHUGH CONSTRUCTION
CO., was, and still is, an Illinois corporation licensed and registered to do business in
Illinois with its principal place of business in Chicago, Cook County, Illinois, and was
engaged in the business of general construction contracting, and was the general
contractor for certain improvements at the property commonly know as 19 N. May St.,
Chicago, Illinois.
3. At all times hereinafter mentioned, Defendant, 19 N. MAY LLC, was, and still is, an
Illinois corporation licensed and registered to do business in Illinois with its principal
place of business in Chicago, Cook County, Illinois, and was the owner of the property
commonly known as 19 N. May St., Chicago, Illinois.
4.
5. At all times hereinafter mentioned, Defendant, CIBC BANK USA, is, and still is, a
chartered bank licensed to do business in Illinois and engaged in the banking business,
including providing construction lending and had an interest in the property commonly
known as 19 N. May St., Chicago, Illinois by virtue of a mortgage.
6. On or about April 22, 2021, Plaintiff entered into a written contract with Defendant
JAMES MCHUGH CONSTRUCTION CO., whereby Plaintiff undertook and agreed to
labor and material for plumbing work for the property aforesaid, in return for which
Plaintiff was to be paid pursuant to the terms of the contract.. A copy of said contract is
attached hereto as Exhibit A.
7. Plaintiff commenced and performed its required work under the contract, periodically
FILED DATE: 11/21/2023 10:09 AM 2023CH09565
submitted requests for payment pursuant to the terms of the contract, and for a period of
time received payments pursuant to the terms of the contract for the work performed.
8. In or about mid-2023, the Defendant JAMES MCHUGH CONSTRUCTION CO. failed
to make required payments to Plaintiff for work performed pursuant to the terms of the
contract. Despite repeated requests for payment of the amounts due, Defendant JAMES
MCHUGH CONSTRUCTION CO. failed and refused, and continues to fail and refuse to
pay Plaintiff amounts due to Plaintiff pursuant to the terms of the contract.
9. In so doing the defendant JAMES MCHUGH CONSTRCUTION CO. breached its
contract with the Plaintiff.
10. As a result of said breach, on or about September 14, 2023 Plaintiff notified the
Defendant JAMES MCHUGH CONSTRUCTION CO., that Plaintiff was ceasing work
on the project and again demanded payment for sums due and owing to Plaintiff for work
performed pursuant to the terms of the contract; Plaintiff last provided work or material
to the job on September 14, 2023.
11. There is due and owing to the Plaintiff for work performed and material delivered to the
premises the sum of $438,043.89.
12. On October 2, 2023, Plaintiff recorded in the Office of the Cook County Clerk its
Mechanic’s Lien Claim, said claim thus being recorded within four months of the
completion of work or delivery of materials by the Plaintiff, in accordance with 770 ILCS
60/7. A copy of said Mechanic’s Lien Claim is attached as Exhibit B.
13. All Lender’s interests in the subject premises are inferior to the rights of the Plaintiff.
14. Unknown owners and non-record claimants may claim to have some interest in the
premises as lien creditors, mortgagees, tenants, judgment creditors, encumbrancers,
trustees, purchasers, or otherwise, the nature of which is unknown to the Plaintiff;
regardless of which, such interest, if any, is null and void as to the rights of the Plaintiff.
WHEREFORE, the Plaintiff prays for relief as follows:
A. That judgment be entered for the Plaintiff, CALD WELL PLUMBING COMPANY,
and against the Defendants, in the sum of $438,043.89, plus costs and interest;
B. That Plaintiff be decreed to have first and prior liens, paramount and superior to all
other rights, title, interests, or liens in or on the premises;
C. That in default of the payment of the sum due and owing to Plaintiff, the premises be
sold to satisfy said sum, including costs and interest and including the costs, charges
and expenses of such sale;
D. That, in case the proceeds of such sale be insufficient to pay in full the sum due
FILED DATE: 11/21/2023 10:09 AM 2023CH09565
Plaintiff, including costs, interest and the costs, charges and expenses of such sale, a
deficiency judgment be entered against the Defendants, and that execution issue
thereon;
E. That Plaintiff have such other relief as the Court deems equitable and proper.
COUNT II- BREACH OF CONTRACT
1. At all times hereinafter mentioned, Plaintiff, CALDWELL PLUMBING CO., was, and
still is, an Illinois corporation licensed and registered to do business in Illinois with its
principal place of business in Wheaton, DuPage County, Illinois, and was engaged in the
business of general plumbing contracting.
2. At all times hereinafter mentioned, Defendant, JAMES MCHUGH CONSTRUCTION
CO., was, and still is, an Illinois corporation licensed and registered to do business in
Illinois with its principal place of business in Chicago, Cook County, Illinois, and was
engaged in the business of general construction contracting, and was the general
contractor for certain improvements at the property commonly know as 19 N. May St.,
Chicago, Illinois.
3. On or about April 22, 2021, Plaintiff entered into a written contract with Defendant
JAMES MCHUGH CONSTRUCTION CO., whereby Plaintiff undertook and agreed to
labor and material for plumbing work for the property aforesaid, in return for which
Plaintiff was to be paid pursuant to the terms of the contract.. A copy of said contract is
attached hereto as Exhibit A.
4. Plaintiff commenced and performed its required work under the contract, periodically
submitted requests for payment pursuant to the terms of the contract, and for a period of
time received payments pursuant to the terms of the contract for the work performed.
5. In or about mid-2023, the Defendant JAMES MCHUGH CONSTRUCTION CO. failed
to make required payments to Plaintiff for work performed pursuant to the terms of the
contract. Despite repeated requests for payment of the amounts due, Defendant JAMES
MCHUGH CONSTRUCTION CO. failed and refused, and continues to fail and refuse to
pay Plaintiff amounts due to Plaintiff pursuant to the terms of the contract.
6. In so doing the defendant JAMES MCHUGH CONSTRCUTION CO. breached its
contract with the Plaintiff.
7. As a result of said breach, on or about September 14, 2023 Plaintiff notified the
Defendant JAMES MCHUGH CONSTRUCTION CO., that Plaintiff was ceasing work
on the project and again demanded payment for sums due and owing to Plaintiff for work
performed pursuant to the terms of the contract; Plaintiff last provided work or material
to the job on September 14, 2023.
FILED DATE: 11/21/2023 10:09 AM 2023CH09565
8. There is due and owing to the Plaintiff for work performed and material delivered to the
premises the sum of $438,043.89.
WHEREFORE, the Plaintiff, CALD WELL PLUMBING COMPANY, prays for judgment
against the Defendant, JAMES MCHUGH CONSTRUCTION, INC., in the sum of $438,043.89,
plus costs.
Respectfully submitted,
DEUTSCHMAN & SKAFISH, P.C.
Attorneys for Plaintiff
77 W. Washington St., Suite 1525
Chicago, IL 60602
(312) 419-1600
Atty. No. 63279
j eff@deustchmanlaw. corn
James McHugh Construction Co.
1737 S. Michigan Avenue, Chicago, IL 60616
Chicago License # TGCO4I 12: FL License # CG022029. TN License #67575
FILED DATE: 11/21/2023 10:09 AM 2023CH09565
SUBCONTRACT AGREEMENT
SUBCONTRACT AGREEMENT NO.: 1195-220000
Date of Subcontract: 04/22/2021 (“Subcontract Date”)
Project: 1195-21 N. May Condominiums (the “Project”)
Project Location: 19 N. May Street, Chicago, IL 60621
Owner: 19 N. May LLC (the “Owner”)
Subcontractor: Caldwell Plumbing Company, Inc. (“Subcontractor”)
821 Childs Street, Wheaton, IL 60187 (Address)
Mike Tenerelli (Contact Person & Phone)
(630) 588-8900
mike@caldwellplumbing.net (Email Address)
Scope of Work: Design and build a Complete and Operational Plumbing Conditioning System
Subcontract Agreement Amount: $4,064,999.00 (the “Subcontract Amount”)
Bond Required: SDlQualified
Subcontractor Serving as D/MN/WBE for Project
(including engaging a second tier D/M/VfvVBE supplier or subcontractor): No
Table of Contents
1. Contract Documents 14. Compliance with Laws and Safety Requirements
2. Scope of Work 15. Design Build Work
3. Subcontract Agreement Amount and Payments 16. Computers & Electronic Document Control
4. Scheduling and the Prosecution of Work 17. Copyrights and Patents Generally
5. Submittals 18. Assignmeiits & Sub-Subcontractors
6. Insurance 19. Warranties
7. Prequalification & Bonds 20. Labor Relations
8. Changes 21. Taxes, Charges
9. Inspections & Corrections 22. Equal Opportunity Required
10. Termination for Cause and Termination for 23. DIMIV/WBE Requirements
Convenience
11. Claims and Disputes 24. Ethics
12. Indemnification 25. Miscellaneous
13. Damage to Work
This agreement shall be referred to throughout as the “Subcontract Agreement,” the “Subcontract” or the
“Agreement.” The terms “Project”, “Owner”, “Subcontractor”, and “Subcontract Amount” are as defined
above. The term “Prime Contract” is the general contract between Owner and James McHugh Construction Co.
(“Mcl-Iugh” or “Contractor”) for the Project. To the extent McHugh is acting as a subcontractor to another
contractor for the Project, for the purposes of this Agreement, the term Owner shall also include the contractor
to which McHugh is contracted.
This Agreement, including all Exhibits listed below in Section 25.15 and attached hereto, which are
incorporated herein as though set forth in full, is entered into between McHugh and Subcontractor as of the
Subcontract Date. Mchugh and Subcontractor may be collectively referred to herein as the “Parties.” McHugh
and Subcontractor agree as detailed below.
1. CONTRACT DOCUMENTS
1 .1. The “Contract Documents” consist of this Subcontract Agreement, including all Exhibits, the Prime
Contract including all Exhibits, the plans, and specifications listed in Exhibit B, all addenda issued by
Owner prior to the execution of this Subcontract Agreement, and all change orders and construction
change directives. Unless specifically clarified in Exhibit A, in the case of a conflict between two or
more terms of this Subcontract Agreement or a term of this Subcontract Agreement and other Contract
Exhibit A
Subcontract #: 1195-220000
Documents, the more stringent term, greater quantity or higher quality material shall be required of
Subcontractor, and an ambiguity shall be construed not to exist.
FILED DATE: 11/21/2023 10:09 AM 2023CH09565
1.2. All capitalized terms used herein shall have the meaning set forth in this Subcontract Agreement, or if
the terms are not defined herein, such terms shall have the meaning set forth in the Prime Contract. If a
capitalized term is defined in both this Subcontract Agreement and the Prime Contract, the definition set
forth herein shall govern for matters that do not involve the Owner and the definition in the Prime
Contract shall govern for matters that do involve the Owner.
1.3. The Contract Documents are located at the principal office of McHugh and are made available to
Subcontractor. Subcontractor accepts responsibility foi- knowledge of the contents of such Contract
Documents and acknowledges that but for such acceptance of responsibility, McHugh would not enter
into this Subcontract Agreement. Upon request, McHugh will provide Subcontractor with a complete
set of Contract Documents in, at the sole discretion of McHugh, either paper format, electronic format
or, in some combination thereof. McHugh may at its discretion redact out of the Contract Documents
such information which is not material to Subcontractor and/or which McHugh or Owner deem
proprietary. It is the responsibility of Subconti-actor to carefully review the Contract Documents and to
notify McHugh of any errors in the Contract Documents that are discovered or reasonably should have
been discovered by Subcontractor. Any failure of Subconti-actor to notify McHugh of any errors that
were actually discovered or that should have been discovered as part of a careful review of the Contract
Documents waives any i-ights Subcontractor has with respect to those errors.
1 .4. Subcontractor is bound to McHugh by the Contract Documents and shall assume toward McHugh, with
respect to Subcontractor’s performance, the obligations and responsibilities that McHugh assumes
towai-d Owner in the Prime Contract. McHugh shall have the benefit of all rights and remedies against
Subcontractor, which Owner, by the Contract Documents, has against McHugh, except as specifically
provided herein. Subcontractor’s rights (as opposed to its obligations, risks, responsibilities, and
limitations) shall be governed solely by the Subcontract Agreement. Subcontractor is not and shall not
be deemed to be a third-party beneficiary of the Contract Documents. Subcontractor shall bind lower-
tier subcontractors to the same obligations and responsibilities that Subcontractor assumes toward
McHugh.
1.5. By performing any of the Subcontract Work after receipt of this Subcontract, Subcontractor accepts the
terms of this Subcontract Agreement and shall be bound by such unmodified terms unless or until the
Parties mutually agree in writing to a modified Subcontract Agreement at a later date, in which case the
modified agreement shall take precedence.
2. SCOPE OF WORK
2.1. McHugh employs Subcontractor as an independent contractor to perform all of that part of the Work, as
defined in the Prime Contract, that is outlined in the Scope of Work that is attached hereto and made a
part hereof as Exhibit A (collectively referred herein as “Subcontract Work”). Subcontractor and its
employees, and its subtier subcontractors and their employees are not and are not intended to be agents
or employees of Owner or McHugh. No agency relationship may be implied or assumed.
2.2. Unless specifically noted and excluded in Exhibit A, the Subcontract Work includes, but is not limited
to, (1) all work related to or arising from the Subcontract Work shown on any of the Contract
Documents as if called for or shown on all the Contract Documents, (2) all necessaiy labor, materials,
supplies, tools, equipment, services, hoisting, scaffolding, ladders, work platforms, protection, lay-out,
insurance (as required herein), loading, unloading and distribution of materials, (3) competent
supervision of all Subcontract Work, (4) execution of all work in the best and most workmanlike
manner, in accordance with the quality control program applicable to the Project and by qualified,
careful, and efficient woi-kers and supervision, who shall be satisfactory to McHugh, (5) mobilizations
as required by the Project and as directed by McHugh; and (6) all things reasonably inferable from or
Page 2 of 30 Version: 20210421 JM PM Subcontract
Subcoiitract #: 1195-220000
implied in the Contract Documents, customarily provided by siibcontractors in Subcontractor’s line of
work or necessary to complete such work for inspection and approval tinder the Contract Documents.
FILED DATE: 11/21/2023 10:09 AM 2023CH09565
2.3. Stibcontractor agrees to perform the Subcontract Work tinder the general direction of McHugh but with
its own onsite management and supervision, in strict conformity with the Contract Documents as
reasonably determined by McHugh, Architect, and Owner. McHugh shall have the right, but not the
obligation to exercise stipervision over Subcontractor’s Work from time to time, but such supervision
shall not, in any way, limit or diminish the obligations of Subcontractor tinder the Contract Documents
or the obligation of Subcontractor to be solely responsible to supervise and control the means, methods,
equipment, tools and safety of the Subcontract Work and Subcontractor’s workforce as well as that of
any lower tier subcontractor hired (directly or indirectly) by Stibcontractor. Subcontractor is an
independent contractor and there is no intent or agreement that McHugh shall be a joint employer of
Subcontractor’s employees.
2.4. Subcontractor shall cooperate with McHugh’s quality control department as required for the Project and
implement stich quality control measures as required by the Contract Documents and reasonably
directed by McHugh. Prior to the commencement of the Subcontract Work, if required by McHugh,
Subcontractor shall complete and furnish to McHugh a job specific quality control plan. Following
approval of Subcontractors quality control plan by McHugh, Subcontractor shall implement and comply
with all the procedures and precautions set forth therein.
2.5. Subcontractor acknowledges and agrees that it has (I) had ample time to visit and has visited and
examined the site and has reviewed the physical conditions affecting the Subcontract Work, (2)
familiarized itself with all of the conditions on, tinder (to the extent set forth in any geotechnical or other
reports provided or otherwise available to Subcontractor describing the stibstirface condition of the site),
and affecting the site that Stibcontractor deems necessary or desirable, based on Subcontractor’s skill,
experience and knowledge, and (3) satisfied itself as to the nattire and location of the Subcontract Work
incitiding all existing conditions. Therefore, Stibcontractor hereby agrees that the Subcontractor’s
discovery of any conditions dtiring the cotirse of the Stibcontract Work that Subcontractor identified or
could have identified prior to starting the Subcontract Work or signing the Subcontract Agreement,
whether or not consistent with conditions shown or called for in the Contract Documents, shall not be
allowed as a basis for Claims for any additional compensation, or an extension of the time for
performance of the Stibcontract Work, unless and only to the extent permitted by the Prime Contract,
and only in the amount so authorized and paid by the Owner.
3. SUBCONTRACT AGREEMENT AMOUNT AND PAYMENTS
3.1. In consideration of the complete and timely performance of all Subcontract Work, including complying
with all of the obligations detailed in this Agreement and the Contract Documents applicable to the
Subcontract Work, McHugh shall pay to Stibcontractor the Subcontract Amount set forth on the first
page of this Agreement. The Subcontract Amount includes any escalation of labor and material costs
for the duration of the Project unless specifically noted in Exhibit A.
3.2. Payments shall be made in installments as the Subcontract Work progresses unless Subcontractor is in
breach of this Subcontract Agreement. Payments shall be paid according to the term and schedule
specified by the Owner. Applications for payment shall be submitted monthly to the Project Accountant
for McHugh on the date designated by McHugh. Applications shall be in AlA G702/703 format, unless
otherwise specified by the Owner or McHugh’s Project Accountant, and shall be accompanied by such
other documentation as is reasonably required by McHtigh. Subcontractor must provide a detailed
schedule of values in the G703 format separating material, equipment, labor, and
subcontractors/suppliers where applicable. The schedule of valties must have sufficient detail to allow
accurate monthly reviews of completed Subcontract Work, but McHugh’s use of the schedule of values
shall not bind McHugh or serve as a presumption that the schedule of values is accurate. When and if
requested by but McHugh or Owner, Stmbcontractor shall also submit to McHugh its projected monthly
cash flow for the Subcontract Work. All G702s must be signed and notarized at the time of submission.
Page 3 of 30 Version: 20210421 JM PM Subcontract
Subcontract #: 1195-220000
Subcontractor shall provide all necessary waivers, contractor’s statements, and affidavits including all
tiers of subcontractors and suppliers to the extent required by Owner or McHugh. Subcontractor shall
FILED DATE: 11/21/2023 10:09 AM 2023CH09565
submit to McHugh a written requisition for payment in approved form showing the proportionate value
of the Subcontract Work performed and completed to date and the Subcontract Work projected to be
complete by the end of the current billing period, from which shall be deducted: (I) retainage in
accordance with the Prime Contract, (2) all previous payments, (3) all charges for materials and services
furnished by McHugh to Subcontractor, and (4) any other charges and deductions provided for in this
Subcontract Agreement. The balance of the requisition, to the extent approved by Owner and McHugh,
shall be payable to Subcontractor within ten (10) business days after payment is received by McHugh
from Owner. The time for payment by McHugh to Subcontractor shall commence with the receipt of
payment from Owner to McHugh.
3.3. Subcontractor acknowledges that McHugh, Owner and Owner’s lender are relying upon all partial, to
date or final lien waivers and all verified contractor’s statements Subcontractor provides pursuant to the
Subcontract Agreement. Subcontractor acknowledges that but for its provision of such waivers and
contractor’s statements, payment to Subcontractor would not have been authorized. Subcontractor
waives any argument or position that McHugh, Owner or Owner’s lender did not rely on any lien waiver
or contractor’s statement.
3.4. TO THE FULLEST EXTENT ALLOWED BY THE APPLICABLE LAW, SUBCONTRACTOR
AGREES THAT McHugh’s OBLIGATION TO MAKE A PAYMENT TO SUBCONTRACTOR,
INCLUDING FINAL PAYMENT, PURSUANT TO THIS SUBCONTRACT AGREEMENT, IS
CONDITIONED ON FIRST RECEIVING THE CORRESPONDING PAYMENT FROM OWNER,
AND RECEIPT OF SUCH PAYMENT FROM OWNER IS A CONDITION PRECEDENT TO
McHugh’s OBLIGATION TO MAKE SUCH PAYMENT TO SUBCONTRACTOR. When Owner’s
payments to McHugh are for less than the full amount requested and do not specifically identify which
work performed by the various subcontractors is to be compensated, McHugh may reasonably allocate
any payments to the various subcontractors. To the extent the Owner files for Bankruptcy or is
otherwise legally insolvent, unless and until such a point as money is released to McHugh, McHugh
shall have no obligation to make a payment to Subcontractor pursuant to this Subcontract Agreement.
To the extent McHugh has a payment or performance bond on the Project, McHugh’s surety’s
obligation to pay Subcontractor shall likewise be conditioned upon payment by the Owner.
3.5. To the fullest extent allowed by the applicable law, Subcontractor agrees that any statute or regulation
that governs the time and manner of payments for the Project, including any “Prompt Payment Act” or
similar legislation is waived in favor of the payment provisions of this Subcontract Agreement and the
Prime Contract and that such statute or regulation shall not apply to payment to Subcontractor for the
Subcontract Work.
3.6. Payment is not an admission of proper performance of this Subcontract Agreement; nor is payment
deemed to be acceptance of defective Subcontract Work or improper materials.
3.7. Prior to Subcontractor commencing the Subcontract Work, or as soon as identified, Subcontractor shall
furnish McHugh with the names, addresses, and scope of work of all lower-tier-subcontractors,
suppliers, and vendors furnishing equipment, materials, or services to the Project in furtherance of this
Subcontract Agreement.
3.8. If and as requested by McHugh, Subcontractor shall obtain letters from each union to which its
employees are members certifying that Subcontractor is current in all its union obligations.
3.9. In the event McHugh receives evidence suggesting that Subcontractor has not made payments as it is
required under the law or this Subcontract Agreement, McHugh may take any reasonable actions
necessary to ensure that Subcontractor’s lower-tier subcontractors, suppliers, vendors, employees.
and/or applicable union benefit funds are fully paid from the proceeds of this Subcontract Agreement
for the goods and services provided by them in furtherance of this Subcontract Agreement. The actions
Page 4 of 30 Version: 20210421 JM PM Subcontract
Subcontract #: 1195-220000
available to McHugh include, but are not limited to, paying amounts due pursuant to this Subcontract
Agreement by joint checks payable to Subcontractor and its lower-tier subcontractors, vendors and
FILED DATE: 11/21/2023 10:09 AM 2023CH09565
unions, and, after three (3) days advance written notice to Subcontractor, payment directly to such
lower-tier subcontractors, vendors and union benefit funds. Any such direct payment shall constitute
payment to Subcontractor. McHugh may delay payment to Subcontractor upon receiving evidence that
Subcontractor has not paid its debts related to the Project or other debts for which McHugh could have
responsibility in order to investigate the credibility of such a claim.
3.10. Final payment shall be made to Subcontractor after (1) Subcontractor has completed the Subcontract
Work and it is accepted by McHugh and Owner, (2) Subcontractor has complied with the terms and
conditions of the Subcontract Agreement and the Prime Contract, (3) Subcontractor has paid all labor
and associated payroll taxes, insurance, and benefits and has furnished McHugh with all required
payroll certifications, (4) Subcontractor has paid all lower-tier subcontractors, equipment vendors, and
material suppliers to date, (5) Subcontractor has submitted proof from all applicable unions, if any, that
all union benefits have been paid in full, (6) Subcontractor has delivered to McHugh all properly
executed final lien waivers, (7) Subcontractor has provided final consent of surety (if applicable), (8)
Subcontractor has provided all written warranties and other closeout documentation, including but not
limited to, 0 & M Manuals, commissioning documentation, and LEED documentation required by the
Specifications, (9) if required by McHugh or the Contract Documents, Subcontractor has provided as-
built drawings, and (10) McHugh has received payment from Owner for all Subcontract Work.
3.11. McHugh may deduct from any payment made pursuant to this Subcontract Agreement any sum owed to
McHugh by Subcontractor pursuant to this Subcontract Agreement or any other agreement between the
parties. In the event of any breach by Subcontractor of this Subcontract Agreement, or in the event of
the assertion by others of any claim or lien against Owner, McHugh, or McHugh’s surety (if applicable),
which claim or lien arises out of Subcontractor’s performance, McHugh may, but is not required to,
retain out of any payments due to Subcontractor an amount sufficient to protect McHugh from any and
all loss, damage or expense therefrom, until the claim or lien has been resolved to the satisfaction of
McHugh, even though Subcontractor may have posted a Payment or Performance Bond or other
performance security.
4. SCHEDULING AND THE PROSECUTION OF WORK
4.1. Time is of the essence of this Subcontract Agreement. Subcontractor agrees to (I) commence the
Subcontract Work in the field when directed by McHugh (2) commence such Subcontract Work at such
points as McHugh may designate, and (3) diligently perform its Subcontract Work in accordance with
the “Project Schedule.” The “Project Schedule” shall be included in Exhibit A and/or as Exhibit E.
Subcontractor shall perform the Subcontract Scope of Work within the duration identified in the Project
Schedule. To the extent there is a conflict in Exhibits regarding the Project Schedule, the more stringent
schedule shall apply to the Subcontractor’s obligations, and McHugh shall own any float in any
schedule. By Agreeing to this Subcontract, Subcontractor is agreeing that the durations shown on the
Project Schedule are reasonable and to a rebuttable presumption that the Subcontract Work is on the
Preview
Hearing Date: 3/20/2024 9:30 AM Location: Court Room 1504 Judge: Brennan, Daniel Patrick FILED 11/21/2023 10:09 AM IRIS Y. MARTINEZ IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS CIRCUIT CLERK CHANCERY DEPARTMENT, MECHANICS LIEN SECTION COOK COUNTY, IL FILED DATE: 11/21/2023 10:09 AM 2023CH09565 2023CH09565 Calendar, 54 CALDWELL PLUMBING CO., ) 25295629 ) Plaintiff, ) ) v. ) No. 2023CH09565 ) JAMES MCHUGH CONSTRUCTION CO., ) 19 N. MAY LLC and CIBC BANK USA, ) ) Defendants. ) COMPLAINT FOR FORECLOSURE OF MECHANICS LIEN AND OTHER RELIEF COUNT I - MECHANICS LIEN 1. At all times hereinafter mentioned, Plaintiff, CALD WELL PLUMBING CO., was, and still is, an Illinois corporation licensed and registered to do business in Illinois with its principal place of business in Wheaton, DuPage County, Illinois, and was engaged in the business of general plumbing contracting. 2. At all times hereinafter mentioned, Defendant, JAMES MCHUGH CONSTRUCTION CO., was, and still is, an Illinois corporation licensed and registered to do business in Illinois with its principal place of business in Chicago, Cook County, Illinois, and was engaged in the business of general construction contracting, and was the general contractor for certain improvements at the property commonly know as 19 N. May St., Chicago, Illinois. 3. At all times hereinafter mentioned, Defendant, 19 N. MAY LLC, was, and still is, an Illinois corporation licensed and registered to do business in Illinois with its principal place of business in Chicago, Cook County, Illinois, and was the owner of the property commonly known as 19 N. May St., Chicago, Illinois. 4. 5. At all times hereinafter mentioned, Defendant, CIBC BANK USA, is, and still is, a chartered bank licensed to do business in Illinois and engaged in the banking business, including providing construction lending and had an interest in the property commonly known as 19 N. May St., Chicago, Illinois by virtue of a mortgage. 6. On or about April 22, 2021, Plaintiff entered into a written contract with Defendant JAMES MCHUGH CONSTRUCTION CO., whereby Plaintiff undertook and agreed to labor and material for plumbing work for the property aforesaid, in return for which Plaintiff was to be paid pursuant to the terms of the contract.. A copy of said contract is attached hereto as Exhibit A. 7. Plaintiff commenced and performed its required work under the contract, periodically FILED DATE: 11/21/2023 10:09 AM 2023CH09565 submitted requests for payment pursuant to the terms of the contract, and for a period of time received payments pursuant to the terms of the contract for the work performed. 8. In or about mid-2023, the Defendant JAMES MCHUGH CONSTRUCTION CO. failed to make required payments to Plaintiff for work performed pursuant to the terms of the contract. Despite repeated requests for payment of the amounts due, Defendant JAMES MCHUGH CONSTRUCTION CO. failed and refused, and continues to fail and refuse to pay Plaintiff amounts due to Plaintiff pursuant to the terms of the contract. 9. In so doing the defendant JAMES MCHUGH CONSTRCUTION CO. breached its contract with the Plaintiff. 10. As a result of said breach, on or about September 14, 2023 Plaintiff notified the Defendant JAMES MCHUGH CONSTRUCTION CO., that Plaintiff was ceasing work on the project and again demanded payment for sums due and owing to Plaintiff for work performed pursuant to the terms of the contract; Plaintiff last provided work or material to the job on September 14, 2023. 11. There is due and owing to the Plaintiff for work performed and material delivered to the premises the sum of $438,043.89. 12. On October 2, 2023, Plaintiff recorded in the Office of the Cook County Clerk its Mechanic’s Lien Claim, said claim thus being recorded within four months of the completion of work or delivery of materials by the Plaintiff, in accordance with 770 ILCS 60/7. A copy of said Mechanic’s Lien Claim is attached as Exhibit B. 13. All Lender’s interests in the subject premises are inferior to the rights of the Plaintiff. 14. Unknown owners and non-record claimants may claim to have some interest in the premises as lien creditors, mortgagees, tenants, judgment creditors, encumbrancers, trustees, purchasers, or otherwise, the nature of which is unknown to the Plaintiff; regardless of which, such interest, if any, is null and void as to the rights of the Plaintiff. WHEREFORE, the Plaintiff prays for relief as follows: A. That judgment be entered for the Plaintiff, CALD WELL PLUMBING COMPANY, and against the Defendants, in the sum of $438,043.89, plus costs and interest; B. That Plaintiff be decreed to have first and prior liens, paramount and superior to all other rights, title, interests, or liens in or on the premises; C. That in default of the payment of the sum due and owing to Plaintiff, the premises be sold to satisfy said sum, including costs and interest and including the costs, charges and expenses of such sale; D. That, in case the proceeds of such sale be insufficient to pay in full the sum due FILED DATE: 11/21/2023 10:09 AM 2023CH09565 Plaintiff, including costs, interest and the costs, charges and expenses of such sale, a deficiency judgment be entered against the Defendants, and that execution issue thereon; E. That Plaintiff have such other relief as the Court deems equitable and proper. COUNT II- BREACH OF CONTRACT 1. At all times hereinafter mentioned, Plaintiff, CALDWELL PLUMBING CO., was, and still is, an Illinois corporation licensed and registered to do business in Illinois with its principal place of business in Wheaton, DuPage County, Illinois, and was engaged in the business of general plumbing contracting. 2. At all times hereinafter mentioned, Defendant, JAMES MCHUGH CONSTRUCTION CO., was, and still is, an Illinois corporation licensed and registered to do business in Illinois with its principal place of business in Chicago, Cook County, Illinois, and was engaged in the business of general construction contracting, and was the general contractor for certain improvements at the property commonly know as 19 N. May St., Chicago, Illinois. 3. On or about April 22, 2021, Plaintiff entered into a written contract with Defendant JAMES MCHUGH CONSTRUCTION CO., whereby Plaintiff undertook and agreed to labor and material for plumbing work for the property aforesaid, in return for which Plaintiff was to be paid pursuant to the terms of the contract.. A copy of said contract is attached hereto as Exhibit A. 4. Plaintiff commenced and performed its required work under the contract, periodically submitted requests for payment pursuant to the terms of the contract, and for a period of time received payments pursuant to the terms of the contract for the work performed. 5. In or about mid-2023, the Defendant JAMES MCHUGH CONSTRUCTION CO. failed to make required payments to Plaintiff for work performed pursuant to the terms of the contract. Despite repeated requests for payment of the amounts due, Defendant JAMES MCHUGH CONSTRUCTION CO. failed and refused, and continues to fail and refuse to pay Plaintiff amounts due to Plaintiff pursuant to the terms of the contract. 6. In so doing the defendant JAMES MCHUGH CONSTRCUTION CO. breached its contract with the Plaintiff. 7. As a result of said breach, on or about September 14, 2023 Plaintiff notified the Defendant JAMES MCHUGH CONSTRUCTION CO., that Plaintiff was ceasing work on the project and again demanded payment for sums due and owing to Plaintiff for work performed pursuant to the terms of the contract; Plaintiff last provided work or material to the job on September 14, 2023. FILED DATE: 11/21/2023 10:09 AM 2023CH09565 8. There is due and owing to the Plaintiff for work performed and material delivered to the premises the sum of $438,043.89. WHEREFORE, the Plaintiff, CALD WELL PLUMBING COMPANY, prays for judgment against the Defendant, JAMES MCHUGH CONSTRUCTION, INC., in the sum of $438,043.89, plus costs. Respectfully submitted, DEUTSCHMAN & SKAFISH, P.C. Attorneys for Plaintiff 77 W. Washington St., Suite 1525 Chicago, IL 60602 (312) 419-1600 Atty. No. 63279 j eff@deustchmanlaw. corn James McHugh Construction Co. 1737 S. Michigan Avenue, Chicago, IL 60616 Chicago License # TGCO4I 12: FL License # CG022029. TN License #67575 FILED DATE: 11/21/2023 10:09 AM 2023CH09565 SUBCONTRACT AGREEMENT SUBCONTRACT AGREEMENT NO.: 1195-220000 Date of Subcontract: 04/22/2021 (“Subcontract Date”) Project: 1195-21 N. May Condominiums (the “Project”) Project Location: 19 N. May Street, Chicago, IL 60621 Owner: 19 N. May LLC (the “Owner”) Subcontractor: Caldwell Plumbing Company, Inc. (“Subcontractor”) 821 Childs Street, Wheaton, IL 60187 (Address) Mike Tenerelli (Contact Person & Phone) (630) 588-8900 mike@caldwellplumbing.net (Email Address) Scope of Work: Design and build a Complete and Operational Plumbing Conditioning System Subcontract Agreement Amount: $4,064,999.00 (the “Subcontract Amount”) Bond Required: SDlQualified Subcontractor Serving as D/MN/WBE for Project (including engaging a second tier D/M/VfvVBE supplier or subcontractor): No Table of Contents 1. Contract Documents 14. Compliance with Laws and Safety Requirements 2. Scope of Work 15. Design Build Work 3. Subcontract Agreement Amount and Payments 16. Computers & Electronic Document Control 4. Scheduling and the Prosecution of Work 17. Copyrights and Patents Generally 5. Submittals 18. Assignmeiits & Sub-Subcontractors 6. Insurance 19. Warranties 7. Prequalification & Bonds 20. Labor Relations 8. Changes 21. Taxes, Charges 9. Inspections & Corrections 22. Equal Opportunity Required 10. Termination for Cause and Termination for 23. DIMIV/WBE Requirements Convenience 11. Claims and Disputes 24. Ethics 12. Indemnification 25. Miscellaneous 13. Damage to Work This agreement shall be referred to throughout as the “Subcontract Agreement,” the “Subcontract” or the “Agreement.” The terms “Project”, “Owner”, “Subcontractor”, and “Subcontract Amount” are as defined above. The term “Prime Contract” is the general contract between Owner and James McHugh Construction Co. (“Mcl-Iugh” or “Contractor”) for the Project. To the extent McHugh is acting as a subcontractor to another contractor for the Project, for the purposes of this Agreement, the term Owner shall also include the contractor to which McHugh is contracted. This Agreement, including all Exhibits listed below in Section 25.15 and attached hereto, which are incorporated herein as though set forth in full, is entered into between McHugh and Subcontractor as of the Subcontract Date. Mchugh and Subcontractor may be collectively referred to herein as the “Parties.” McHugh and Subcontractor agree as detailed below. 1. CONTRACT DOCUMENTS 1 .1. The “Contract Documents” consist of this Subcontract Agreement, including all Exhibits, the Prime Contract including all Exhibits, the plans, and specifications listed in Exhibit B, all addenda issued by Owner prior to the execution of this Subcontract Agreement, and all change orders and construction change directives. Unless specifically clarified in Exhibit A, in the case of a conflict between two or more terms of this Subcontract Agreement or a term of this Subcontract Agreement and other Contract Exhibit A Subcontract #: 1195-220000 Documents, the more stringent term, greater quantity or higher quality material shall be required of Subcontractor, and an ambiguity shall be construed not to exist. FILED DATE: 11/21/2023 10:09 AM 2023CH09565 1.2. All capitalized terms used herein shall have the meaning set forth in this Subcontract Agreement, or if the terms are not defined herein, such terms shall have the meaning set forth in the Prime Contract. If a capitalized term is defined in both this Subcontract Agreement and the Prime Contract, the definition set forth herein shall govern for matters that do not involve the Owner and the definition in the Prime Contract shall govern for matters that do involve the Owner. 1.3. The Contract Documents are located at the principal office of McHugh and are made available to Subcontractor. Subcontractor accepts responsibility foi- knowledge of the contents of such Contract Documents and acknowledges that but for such acceptance of responsibility, McHugh would not enter into this Subcontract Agreement. Upon request, McHugh will provide Subcontractor with a complete set of Contract Documents in, at the sole discretion of McHugh, either paper format, electronic format or, in some combination thereof. McHugh may at its discretion redact out of the Contract Documents such information which is not material to Subcontractor and/or which McHugh or Owner deem proprietary. It is the responsibility of Subconti-actor to carefully review the Contract Documents and to notify McHugh of any errors in the Contract Documents that are discovered or reasonably should have been discovered by Subcontractor. Any failure of Subconti-actor to notify McHugh of any errors that were actually discovered or that should have been discovered as part of a careful review of the Contract Documents waives any i-ights Subcontractor has with respect to those errors. 1 .4. Subcontractor is bound to McHugh by the Contract Documents and shall assume toward McHugh, with respect to Subcontractor’s performance, the obligations and responsibilities that McHugh assumes towai-d Owner in the Prime Contract. McHugh shall have the benefit of all rights and remedies against Subcontractor, which Owner, by the Contract Documents, has against McHugh, except as specifically provided herein. Subcontractor’s rights (as opposed to its obligations, risks, responsibilities, and limitations) shall be governed solely by the Subcontract Agreement. Subcontractor is not and shall not be deemed to be a third-party beneficiary of the Contract Documents. Subcontractor shall bind lower- tier subcontractors to the same obligations and responsibilities that Subcontractor assumes toward McHugh. 1.5. By performing any of the Subcontract Work after receipt of this Subcontract, Subcontractor accepts the terms of this Subcontract Agreement and shall be bound by such unmodified terms unless or until the Parties mutually agree in writing to a modified Subcontract Agreement at a later date, in which case the modified agreement shall take precedence. 2. SCOPE OF WORK 2.1. McHugh employs Subcontractor as an independent contractor to perform all of that part of the Work, as defined in the Prime Contract, that is outlined in the Scope of Work that is attached hereto and made a part hereof as Exhibit A (collectively referred herein as “Subcontract Work”). Subcontractor and its employees, and its subtier subcontractors and their employees are not and are not intended to be agents or employees of Owner or McHugh. No agency relationship may be implied or assumed. 2.2. Unless specifically noted and excluded in Exhibit A, the Subcontract Work includes, but is not limited to, (1) all work related to or arising from the Subcontract Work shown on any of the Contract Documents as if called for or shown on all the Contract Documents, (2) all necessaiy labor, materials, supplies, tools, equipment, services, hoisting, scaffolding, ladders, work platforms, protection, lay-out, insurance (as required herein), loading, unloading and distribution of materials, (3) competent supervision of all Subcontract Work, (4) execution of all work in the best and most workmanlike manner, in accordance with the quality control program applicable to the Project and by qualified, careful, and efficient woi-kers and supervision, who shall be satisfactory to McHugh, (5) mobilizations as required by the Project and as directed by McHugh; and (6) all things reasonably inferable from or Page 2 of 30 Version: 20210421 JM PM Subcontract Subcoiitract #: 1195-220000 implied in the Contract Documents, customarily provided by siibcontractors in Subcontractor’s line of work or necessary to complete such work for inspection and approval tinder the Contract Documents. FILED DATE: 11/21/2023 10:09 AM 2023CH09565 2.3. Stibcontractor agrees to perform the Subcontract Work tinder the general direction of McHugh but with its own onsite management and supervision, in strict conformity with the Contract Documents as reasonably determined by McHugh, Architect, and Owner. McHugh shall have the right, but not the obligation to exercise stipervision over Subcontractor’s Work from time to time, but such supervision shall not, in any way, limit or diminish the obligations of Subcontractor tinder the Contract Documents or the obligation of Subcontractor to be solely responsible to supervise and control the means, methods, equipment, tools and safety of the Subcontract Work and Subcontractor’s workforce as well as that of any lower tier subcontractor hired (directly or indirectly) by Stibcontractor. Subcontractor is an independent contractor and there is no intent or agreement that McHugh shall be a joint employer of Subcontractor’s employees. 2.4. Subcontractor shall cooperate with McHugh’s quality control department as required for the Project and implement stich quality control measures as required by the Contract Documents and reasonably directed by McHugh. Prior to the commencement of the Subcontract Work, if required by McHugh, Subcontractor shall complete and furnish to McHugh a job specific quality control plan. Following approval of Subcontractors quality control plan by McHugh, Subcontractor shall implement and comply with all the procedures and precautions set forth therein. 2.5. Subcontractor acknowledges and agrees that it has (I) had ample time to visit and has visited and examined the site and has reviewed the physical conditions affecting the Subcontract Work, (2) familiarized itself with all of the conditions on, tinder (to the extent set forth in any geotechnical or other reports provided or otherwise available to Subcontractor describing the stibstirface condition of the site), and affecting the site that Stibcontractor deems necessary or desirable, based on Subcontractor’s skill, experience and knowledge, and (3) satisfied itself as to the nattire and location of the Subcontract Work incitiding all existing conditions. Therefore, Stibcontractor hereby agrees that the Subcontractor’s discovery of any conditions dtiring the cotirse of the Stibcontract Work that Subcontractor identified or could have identified prior to starting the Subcontract Work or signing the Subcontract Agreement, whether or not consistent with conditions shown or called for in the Contract Documents, shall not be allowed as a basis for Claims for any additional compensation, or an extension of the time for performance of the Stibcontract Work, unless and only to the extent permitted by the Prime Contract, and only in the amount so authorized and paid by the Owner. 3. SUBCONTRACT AGREEMENT AMOUNT AND PAYMENTS 3.1. In consideration of the complete and timely performance of all Subcontract Work, including complying with all of the obligations detailed in this Agreement and the Contract Documents applicable to the Subcontract Work, McHugh shall pay to Stibcontractor the Subcontract Amount set forth on the first page of this Agreement. The Subcontract Amount includes any escalation of labor and material costs for the duration of the Project unless specifically noted in Exhibit A. 3.2. Payments shall be made in installments as the Subcontract Work progresses unless Subcontractor is in breach of this Subcontract Agreement. Payments shall be paid according to the term and schedule specified by the Owner. Applications for payment shall be submitted monthly to the Project Accountant for McHugh on the date designated by McHugh. Applications shall be in AlA G702/703 format, unless otherwise specified by the Owner or McHugh’s Project Accountant, and shall be accompanied by such other documentation as is reasonably required by McHtigh. Subcontractor must provide a detailed schedule of values in the G703 format separating material, equipment, labor, and subcontractors/suppliers where applicable. The schedule of valties must have sufficient detail to allow accurate monthly reviews of completed Subcontract Work, but McHugh’s use of the schedule of values shall not bind McHugh or serve as a presumption that the schedule of values is accurate. When and if requested by but McHugh or Owner, Stmbcontractor shall also submit to McHugh its projected monthly cash flow for the Subcontract Work. All G702s must be signed and notarized at the time of submission. Page 3 of 30 Version: 20210421 JM PM Subcontract Subcontract #: 1195-220000 Subcontractor shall provide all necessary waivers, contractor’s statements, and affidavits including all tiers of subcontractors and suppliers to the extent required by Owner or McHugh. Subcontractor shall FILED DATE: 11/21/2023 10:09 AM 2023CH09565 submit to McHugh a written requisition for payment in approved form showing the proportionate value of the Subcontract Work performed and completed to date and the Subcontract Work projected to be complete by the end of the current billing period, from which shall be deducted: (I) retainage in accordance with the Prime Contract, (2) all previous payments, (3) all charges for materials and services furnished by McHugh to Subcontractor, and (4) any other charges and deductions provided for in this Subcontract Agreement. The balance of the requisition, to the extent approved by Owner and McHugh, shall be payable to Subcontractor within ten (10) business days after payment is received by McHugh from Owner. The time for payment by McHugh to Subcontractor shall commence with the receipt of payment from Owner to McHugh. 3.3. Subcontractor acknowledges that McHugh, Owner and Owner’s lender are relying upon all partial, to date or final lien waivers and all verified contractor’s statements Subcontractor provides pursuant to the Subcontract Agreement. Subcontractor acknowledges that but for its provision of such waivers and contractor’s statements, payment to Subcontractor would not have been authorized. Subcontractor waives any argument or position that McHugh, Owner or Owner’s lender did not rely on any lien waiver or contractor’s statement. 3.4. TO THE FULLEST EXTENT ALLOWED BY THE APPLICABLE LAW, SUBCONTRACTOR AGREES THAT McHugh’s OBLIGATION TO MAKE A PAYMENT TO SUBCONTRACTOR, INCLUDING FINAL PAYMENT, PURSUANT TO THIS SUBCONTRACT AGREEMENT, IS CONDITIONED ON FIRST RECEIVING THE CORRESPONDING PAYMENT FROM OWNER, AND RECEIPT OF SUCH PAYMENT FROM OWNER IS A CONDITION PRECEDENT TO McHugh’s OBLIGATION TO MAKE SUCH PAYMENT TO SUBCONTRACTOR. When Owner’s payments to McHugh are for less than the full amount requested and do not specifically identify which work performed by the various subcontractors is to be compensated, McHugh may reasonably allocate any payments to the various subcontractors. To the extent the Owner files for Bankruptcy or is otherwise legally insolvent, unless and until such a point as money is released to McHugh, McHugh shall have no obligation to make a payment to Subcontractor pursuant to this Subcontract Agreement. To the extent McHugh has a payment or performance bond on the Project, McHugh’s surety’s obligation to pay Subcontractor shall likewise be conditioned upon payment by the Owner. 3.5. To the fullest extent allowed by the applicable law, Subcontractor agrees that any statute or regulation that governs the time and manner of payments for the Project, including any “Prompt Payment Act” or similar legislation is waived in favor of the payment provisions of this Subcontract Agreement and the Prime Contract and that such statute or regulation shall not apply to payment to Subcontractor for the Subcontract Work. 3.6. Payment is not an admission of proper performance of this Subcontract Agreement; nor is payment deemed to be acceptance of defective Subcontract Work or improper materials. 3.7. Prior to Subcontractor commencing the Subcontract Work, or as soon as identified, Subcontractor shall furnish McHugh with the names, addresses, and scope of work of all lower-tier-subcontractors, suppliers, and vendors furnishing equipment, materials, or services to the Project in furtherance of this Subcontract Agreement. 3.8. If and as requested by McHugh, Subcontractor shall obtain letters from each union to which its employees are members certifying that Subcontractor is current in all its union obligations. 3.9. In the event McHugh receives evidence suggesting that Subcontractor has not made payments as it is required under the law or this Subcontract Agreement, McHugh may take any reasonable actions necessary to ensure that Subcontractor’s lower-tier subcontractors, suppliers, vendors, employees. and/or applicable union benefit funds are fully paid from the proceeds of this Subcontract Agreement for the goods and services provided by them in furtherance of this Subcontract Agreement. The actions Page 4 of 30 Version: 20210421 JM PM Subcontract Subcontract #: 1195-220000 available to McHugh include, but are not limited to, paying amounts due pursuant to this Subcontract Agreement by joint checks payable to Subcontractor and its lower-tier subcontractors, vendors and FILED DATE: 11/21/2023 10:09 AM 2023CH09565 unions, and, after three (3) days advance written notice to Subcontractor, payment directly to such lower-tier subcontractors, vendors and union benefit funds. Any such direct payment shall constitute payment to Subcontractor. McHugh may delay payment to Subcontractor upon receiving evidence that Subcontractor has not paid its debts related to the Project or other debts for which McHugh could have responsibility in order to investigate the credibility of such a claim. 3.10. Final payment shall be made to Subcontractor after (1) Subcontractor has completed the Subcontract Work and it is accepted by McHugh and Owner, (2) Subcontractor has complied with the terms and conditions of the Subcontract Agreement and the Prime Contract, (3) Subcontractor has paid all labor and associated payroll taxes, insurance, and benefits and has furnished McHugh with all required payroll certifications, (4) Subcontractor has paid all lower-tier subcontractors, equipment vendors, and material suppliers to date, (5) Subcontractor has submitted proof from all applicable unions, if any, that all union benefits have been paid in full, (6) Subcontractor has delivered to McHugh all properly executed final lien waivers, (7) Subcontractor has provided final consent of surety (if applicable), (8) Subcontractor has provided all written warranties and other closeout documentation, including but not limited to, 0 & M Manuals, commissioning documentation, and LEED documentation required by the Specifications, (9) if required by McHugh or the Contract Documents, Subcontractor has provided as- built drawings, and (10) McHugh has received payment from Owner for all Subcontract Work. 3.11. McHugh may deduct from any payment made pursuant to this Subcontract Agreement any sum owed to McHugh by Subcontractor pursuant to this Subcontract Agreement or any other agreement between the parties. In the event of any breach by Subcontractor of this Subcontract Agreement, or in the event of the assertion by others of any claim or lien against Owner, McHugh, or McHugh’s surety (if applicable), which claim or lien arises out of Subcontractor’s performance, McHugh may, but is not required to, retain out of any payments due to Subcontractor an amount sufficient to protect McHugh from any and all loss, damage or expense therefrom, until the claim or lien has been resolved to the satisfaction of McHugh, even though Subcontractor may have posted a Payment or Performance Bond or other performance security. 4. SCHEDULING AND THE PROSECUTION OF WORK 4.1. Time is of the essence of this Subcontract Agreement. Subcontractor agrees to (I) commence the Subcontract Work in the field when directed by McHugh (2) commence such Subcontract Work at such points as McHugh may designate, and (3) diligently perform its Subcontract Work in accordance with the “Project Schedule.” The “Project Schedule” shall be included in Exhibit A and/or as Exhibit E. Subcontractor shall perform the Subcontract Scope of Work within the duration identified in the Project Schedule. To the extent there is a conflict in Exhibits regarding the Project Schedule, the more stringent schedule shall apply to the Subcontractor’s obligations, and McHugh shall own any float in any schedule. By Agreeing to this Subcontract, Subcontractor is agreeing that the durations shown on the Project Schedule are reasonable and to a rebuttable presumption that the Subcontract Work is on the