Preview
Hearing Date: 3/20/2024 10:30 AM
Location: Court Room 1502
Judge: Kyriakopoulos, Anthony C.
FILED
11/21/2023 10:53 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 10:53 AM 2023CH09568
2023CH09568
Calendar, 52
CALD WELL PLUMBING CO., ) 25297141
)
Plaintiff, )
) 2023CH09568
v. ) No.
)
BOWA MCHUGH 43 GREEN LLC, )
43RD
AND CALUMET PHASE 1 LP, )
BELLWETHER ENTERPRISE REAL )
CAPITAL,LLC, CITY OF CHICAGO, an )
Illinois Municipal Corporation, )
GENERATIONS HOUSING INITIATIVES, )
UNITED STATES DEPARTMENT OF )
HOUSING AND URBAN DEVELOPMENT )
And 43 GREEN JV LLC, )
)
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, BOWA MCHUGH 43 GREEN 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 engaged in the
business of general construction contracting, and was the general contractor for certain
improvements at the property commonly known as 321 E. Green St., Chicago, Illinois.
3. At all times hereinafter mentioned, Defendant, 43rd AND CALUMET PHASE 1 LP, 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 321 E. Green St., Chicago, Illinois.
4. At all times hereinafter mentioned, Defendant, BELLWETHER ENTERPRISE
CAPITAL,LLC was, and still is, an Ohio Corporation licensed to do business in Illinois
with its principal place of business in Cleveland, Ohio, and engaged in the banking
business, including providing construction lending and had an interest in the property
commonly known as 321 E. 43 St, Chicago, Illinois by virtue of a mortgage.
FILED DATE: 11/21/2023 10:53 AM 2023CH09568
5. At all times hereinafter mentioned, Defendant, CITY OF CHICAGO, was, and still is an
Illinois municipal corporation and Defendant, GENERATIONS HOUSING
INITIATIVES, 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 each has an interest in the the property commonly known as 321 E. 43rd St., Chicago,
Illinois by virtue of a mortgage.
6. At all times hereinafter mentioned, Defendants, UNITES STATES DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT and 43 GREE JV LLC, were parties in
interest claiming interests in the property commonly known as 321 E. 43ft1 St., Chicago,
Illinois.
7. On or about January 14, 2022, Plaintiff entered into a written contract with Defendant
BOWA MCHUGH 43 GREEN LLC, 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.
8. Plaintiff commenced and performed all of its required work under the contract, and has
requested payment from Defendant BOWA MCHUGH 43 GREEN LLC.
9. The Defendant BOWA MCHUGH 43 GREEN LLC failed to make payment to Plaintiff
for work performed pursuant to the terms of the contract. Despite repeated requests for
payment of the amounts due, Defendant BOWA MCHUGH 43 GREEN LLC failed and
refused, and continues to fail and refuse to pay Plaintiff amounts due to Plaintiff pursuant
to the terms of the contract.
10. In so doing the defendant BOWA MCHUGH 43 GREEN LLC breached its contract with
the Plaintiff.
11. There is due and owing to the Plaintiff for work performed and material delivered to the
premises the sum of $91,028.94.
12. On October 13, 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 and Parties in Interest’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.
FILED DATE: 11/21/2023 10:53 AM 2023CH09568
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 $91,028.94, 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
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, BOWA MCHUGH 43 GREEN 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 engaged in the
business of general construction contracting, and was the general contractor for certain
improvements at the property commonly know as 321 E. 43rd St., Chicago, Illinois.
3. On or about January 14, 2022, Plaintiff entered into a written contract with Defendant
BOWA MCHUGH 43 GREEN LLC, 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 all of its required work under the contract, and has
requested payment from Defendant BOWA MCHUGH 43 GREEN LLC.
15. The Defendant BOWA MCHUGH 43 GREEN LLC failed to make payment to Plaintiff
for work performed pursuant to the terms of the contract. Despite repeated requests for
payment of the amounts due, Defendant BOWA MCHUGH 43 GREEN LLC failed and
refused, and continues to fail and refuse to pay Plaintiff amounts due to Plaintiff pursuant
FILED DATE: 11/21/2023 10:53 AM 2023CH09568
to the terms of the contract.
5. In so doing the defendant BOWA MCHUGH 43 GREEN LLC breached its contract with
the Plaintiff.
6. There is due and owing to the Plaintiff for work performed and material delivered to the
premises the sum of $91,028.94.
WHEREFORE, the Plaintiff, CALD WELL PLUMBING COMPAN’ç prays for judgment
against the Defendant, BOWA MCHUGH 43 GREEN LLC, in the sum of $91,028.94, 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
I eff@deustchmanlaw.com
Bowa McHugh 43 Green LLC
1737 S. Michigan Avenue, Chicago, IL 60616
Chicago License # TGCO4 I 2 FL License # CG022029: TN License #67575
FILED DATE: 11/21/2023 10:53 AM 2023CH09568
SUBCONTRACT AGREEMENT
SUBCONTRACT AGREEMENT NO.: 930-221000
Date of Subcontract: 01 / 10/2022 (“Subcontract Date”)
Project: 930-43 Green (the “Project”)
Project Location: 321 E. 43rd Street, Chicago, IL 60653
Owner: 43RD AND CALUMET PHASE I LP (the “Owner”)
Subcontractor: CaIdwell Plumbing Company, Inc. (“Subconactor”)
821 Childs Street, Wheaton, IL 60187 (Address)
Mike Tenerelli (Contact Person & Phone)
(630) 588-8900
rnike@caIdwellplurnbing.net (Email Address)
Scope of Work: Plumbing System
Subcontract Agreement Amount: $1,814,115.15 (the “Subcontract Amount”)
Bond Required: SDlQualified
Subcontractor Serving as DIMNIWBE for Project
(including engaging a second tier DIM/V1VvBE supplier or subcontractor): Yes
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. Assignments & 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. D/M/V/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 Bowa McHugh 43 Green LLC (“Bowa
McHugh 43 Green” or “Contractor”) for the Project. To the extent Bowa McHugh 43 Green 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 Bowa McHugh 43 Green 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 Bowa McHugh 43 Green and Subcontractor as of the
Subcontract Date. Bowa McHugh 43 Green and Subcontractor may be collectively referred to herein as the
“Parties.” Bowa McHugh 43 Green and Subcontractor agree as detailed below.
1. CONTRACT DOCUMENTS
.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 ofa conflict between two or more
terms of this Subcontract Agreement or a term of this Subcontract Agreement and other Contract
Exhibit A
Subcontract #: 9.30-221000
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 10:53 AM 2023CH09568
1.2. All capitalized terms used herein shall have the meaning set forth in this Subcontract Agreement, or if the
teriTis 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 Bowa McHugh 43 Green and are made
available to Subcontractor. Subcontractor accepts responsibility for knowledge of the contents of such
Contract Documents and acknowledges that but for such acceptance of responsibility, Bowa McHugh 43
Green would not enter into this Subcontract Agreement. Upon request, Bowa McHugh 43 Green will
provide Subcontractor with a complete set of Contract Documents in, at the sole discretion of Bowa
McHugh 43 Green, either paper format, electronic format or, in some combination thereof. Bowa
McHugh 43 Green may at its discretion redact out of the Contract Documents such information which is
not material to Subcontractor and/or which Bowa McHugh 43 Green or Owner deem proprietary. It is
the responsibility of Subcontractor to carefully review the Contract Documents and to notify Bowa
McHugh 43 Green of any errors in the Contract Documents that are discovered or reasonably should have
been discovered by Subcontractor. Any failure of Subcontractor to notify Bowa McHugh 43 Green 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 rights Subcontractor has with respect to those errors.
1 .4. Subcontractor is bound to Bowa McHugh 43 Green by the Contract Documents and shall assume toward
Bowa McHugh 43 Green, with respect to Subcontractor’s performance, the obligations and
responsibilities that Bowa McHugh 43 Green assumes toward Owner in the Prime Contract. Bowa
McHugh 43 Green shall have the benefit of all rights and remedies against Subcontractor, which Owner,
by the Contract Documents, has against Bowa McHugh 43 Green, 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 Bowa McHugh 43 Green.
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. SCOPEOFWORK
2.1. Bowa McHugh 43 Green employs Subcontractor as an independent contractor to perforrri 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 Bowa McHugh 43 Green. 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 necessary 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 workers
and supervision, who shall be satisfactory to Bowa McHugh 43 Green, (5) mobilizations as required by
Page 2 of38 Version: 20210428 JM PM Subcontract
Subcontract #: 930-221000
the Project and as directed by Bowa McHugh 43 Green; and (6) all things reasonably inferable from or
implied in the Contract Documents, customarily provided by subcontractors in Subcontractor’s line of
FILED DATE: 11/21/2023 10:53 AM 2023CH09568
work or necessary to complete such work for inspection and approval under the Contract Documents.
2.3. Subcontractor agrees to perfonn the Subcontract Work tinder the general direction of Bowa McHugh 43
Green but with its own onsite management and supervision, in strict conformity with the Contract
Documents as reasonably determined by Bowa McHugh 43 Green, Architect, and Owner. Bowa McHugh
43 Green shall have the right, but not the obligation to exercise supervision over Subcontractor’s Work
from time to time, but such supervision shall not, in any way, limit or diminish the obligations of
Subcontractor under 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
Subcontractor. Subcontractor is an independent contractor and there is no intent or agreement that Bowa
McHugh 43 Green shall be a joint employer of Subcontractor’s employees.
2.4. Subcontractor shall cooperate with Bowa McHugh 43 Green’s quality control department as required for
the Project and implement such quality control measures as required by the Contract Documents and
reasonably directed by Bowa McHugh 43 Green. Prior to the commencement of the Subcontract Work,
if required by Bowa McHugh 43 Green, Subcontractor shall complete and furnish to Bowa McHugh 43
Green ajob specific quality control plan. Following approval of Subcontractor’s quality control plan by
Bowa McHugh 43 Green, Subcontractor shall implement and comply with all the procedures and
precautions set forth therein.
2.5. Subcontractor acknowledges and agrees that it has (1) 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, under (to the extent set forth in any geotechnical or other
reports provided or otherwise available to Subcontractor describing the subsurface condition of the site),
and affecting the site that Subcontractor deems necessary or desirable, based on Subcontractor’s skill,
experience and knowledge, and (3) satisfied itself as to the nature and location of the Subcontract Work
including all existing conditions. Therefore, Subcontractor hereby agrees that the Subcontractor’s
discovery of any conditions during the course of the Subcontract 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 Subcontract 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, Bowa McHugh 43 Green shall pay to Subcontractor 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 Bowa McHugh 43 Green on the date designated by Bowa McHugh 43 Green. Applications shall be
in AlA G702/703 format, unless otherwise specified by the Owner or Bowa McHugh 43 Green’s Project
Accountant, and shall be accompanied by such other documentation as is reasonably required by Bowa
McHugh 43 Green. Subcontractor must provide a detailed schedule of values in the G703 format
separating material, equipment, labor, and subcontractors/suppliers where applicable. The schedule of
values must have sufficient detail to allow accurate monthly reviews of completed Subcontract Work, but
Bowa McHugh 43 Green’s use of the schedule of values shall not bind Bowa McHugh 43 Green or serve
Page 3 of38 Version: 20210428 JM PM Subcontract
Subcontract #: 930-221000
as a presumption that the schedule of values is accurate. When and if requested by but Bowa McHugh 43
Green or Owner, Subcontractor shall also submit to Bowa McHugh 43 Green its projected monthly cash
FILED DATE: 11/21/2023 10:53 AM 2023CH09568
flow for the Subcontract Work. All G702s must be signed and notarized at the time of submission.
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 Bowa McHugh 43 Green.
Subcontractor shall submit to Bowa McHugh 43 Green 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 Bowa McHugh 43 Green 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 Bowa McHugh 43 Green, shall be payable to Subcontractor within ten
(10) business days after payment is received by Bowa McHugh 43 Green from Owner. The time for
payment by Bowa McHugh 43 Green to Subcontractor shall commence with the receipt of payment from
Owner to Bowa McHugh 43 Green.
3.3. Subcontractor acknowledges that Bowa McHugh 43 Green, 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 Bowa McHugh 43 Green, 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 Bowa McHugh 43 Green’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 Bowa McHugh 43 Green’s OBLIGATION TO MAKE SUCH PAYMENT TO
SUBCONTRACTOR. When Owner’s payments to Bowa McHugh 43 Green are for less than the full
amount requested and do not specifically identify which work performed by the various subcontractors is
to be compensated, Bowa McHugh 43 Green 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 Bowa McHugh 43 Green, Bowa McHugh 43 Green shall have
no obligation to make a payment to Subcontractor pursuant to this Subcontract Agreement. To the extent
Bowa McHugh 43 Green has a payment or performance bond on the Project, Bowa McHugh 43 Green’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 Bowa McHugh 43 Green 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 Bowa McHugh 43 Green, Subcontractor shall obtain letters from each union to
which its employees are members certif’ing that Subcontractor is current in all its union obligations.
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Subcontract II: 930-221000
3.9. In the event Bowa McHugh 43 Green receives evidence suggesting that Subcontractor has not made
payments as it is required under the law or this Subcontract Agreement, Bowa McHugh 43 Green may
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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 available to Bowa McHugh 43 Green 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 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. Bowa McHugh 43 Green may delay
payment to Subcontractor upon receiving evidence that Subcontractor has not paid its debts related to the
Project or other debts for which Bowa McHugh 43 Green could have responsibility in order to investigate
the credibility of such a claim.
3.10. Final payment shall be made to Subcontractor after (I) Subcontractor has completed the Subcontract Work
and it is accepted by Bowa McHugh 43 Green 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 Bowa McHugh 43 Green 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 Bowa McHugh 43
Green 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 Bowa McHugh 43 Green or the Contract Documents,
Subcontractor has provided as-built drawings, and (10) Bowa McHugh 43 Green has received payment
from Owner for all Subcontract Work.
3.1 1. Bowa McHugh 43 Green may deduct from any payment made pursuant to this Subcontract Agreement
any sum owed to Bowa McHugh 43 Green 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, Bowa McHugh
43 Green, or Bowa McHugh 43 Green’s surety (if applicable), which claim or lien arises out of
Subcontractor’s performance, Bowa McHugh 43 Green may, but is not required to, retain out of any
payments due to Subcontractor an amount sufficient to protect Bowa McHugh 43 Green from any and all
Preview
Hearing Date: 3/20/2024 10:30 AM Location: Court Room 1502 Judge: Kyriakopoulos, Anthony C. FILED 11/21/2023 10:53 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 10:53 AM 2023CH09568 2023CH09568 Calendar, 52 CALD WELL PLUMBING CO., ) 25297141 ) Plaintiff, ) ) 2023CH09568 v. ) No. ) BOWA MCHUGH 43 GREEN LLC, ) 43RD AND CALUMET PHASE 1 LP, ) BELLWETHER ENTERPRISE REAL ) CAPITAL,LLC, CITY OF CHICAGO, an ) Illinois Municipal Corporation, ) GENERATIONS HOUSING INITIATIVES, ) UNITED STATES DEPARTMENT OF ) HOUSING AND URBAN DEVELOPMENT ) And 43 GREEN JV LLC, ) ) 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, BOWA MCHUGH 43 GREEN 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 engaged in the business of general construction contracting, and was the general contractor for certain improvements at the property commonly known as 321 E. Green St., Chicago, Illinois. 3. At all times hereinafter mentioned, Defendant, 43rd AND CALUMET PHASE 1 LP, 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 321 E. Green St., Chicago, Illinois. 4. At all times hereinafter mentioned, Defendant, BELLWETHER ENTERPRISE CAPITAL,LLC was, and still is, an Ohio Corporation licensed to do business in Illinois with its principal place of business in Cleveland, Ohio, and engaged in the banking business, including providing construction lending and had an interest in the property commonly known as 321 E. 43 St, Chicago, Illinois by virtue of a mortgage. FILED DATE: 11/21/2023 10:53 AM 2023CH09568 5. At all times hereinafter mentioned, Defendant, CITY OF CHICAGO, was, and still is an Illinois municipal corporation and Defendant, GENERATIONS HOUSING INITIATIVES, 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 each has an interest in the the property commonly known as 321 E. 43rd St., Chicago, Illinois by virtue of a mortgage. 6. At all times hereinafter mentioned, Defendants, UNITES STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT and 43 GREE JV LLC, were parties in interest claiming interests in the property commonly known as 321 E. 43ft1 St., Chicago, Illinois. 7. On or about January 14, 2022, Plaintiff entered into a written contract with Defendant BOWA MCHUGH 43 GREEN LLC, 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. 8. Plaintiff commenced and performed all of its required work under the contract, and has requested payment from Defendant BOWA MCHUGH 43 GREEN LLC. 9. The Defendant BOWA MCHUGH 43 GREEN LLC failed to make payment to Plaintiff for work performed pursuant to the terms of the contract. Despite repeated requests for payment of the amounts due, Defendant BOWA MCHUGH 43 GREEN LLC failed and refused, and continues to fail and refuse to pay Plaintiff amounts due to Plaintiff pursuant to the terms of the contract. 10. In so doing the defendant BOWA MCHUGH 43 GREEN LLC breached its contract with the Plaintiff. 11. There is due and owing to the Plaintiff for work performed and material delivered to the premises the sum of $91,028.94. 12. On October 13, 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 and Parties in Interest’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. FILED DATE: 11/21/2023 10:53 AM 2023CH09568 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 $91,028.94, 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 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, BOWA MCHUGH 43 GREEN 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 engaged in the business of general construction contracting, and was the general contractor for certain improvements at the property commonly know as 321 E. 43rd St., Chicago, Illinois. 3. On or about January 14, 2022, Plaintiff entered into a written contract with Defendant BOWA MCHUGH 43 GREEN LLC, 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 all of its required work under the contract, and has requested payment from Defendant BOWA MCHUGH 43 GREEN LLC. 15. The Defendant BOWA MCHUGH 43 GREEN LLC failed to make payment to Plaintiff for work performed pursuant to the terms of the contract. Despite repeated requests for payment of the amounts due, Defendant BOWA MCHUGH 43 GREEN LLC failed and refused, and continues to fail and refuse to pay Plaintiff amounts due to Plaintiff pursuant FILED DATE: 11/21/2023 10:53 AM 2023CH09568 to the terms of the contract. 5. In so doing the defendant BOWA MCHUGH 43 GREEN LLC breached its contract with the Plaintiff. 6. There is due and owing to the Plaintiff for work performed and material delivered to the premises the sum of $91,028.94. WHEREFORE, the Plaintiff, CALD WELL PLUMBING COMPAN’ç prays for judgment against the Defendant, BOWA MCHUGH 43 GREEN LLC, in the sum of $91,028.94, 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 I eff@deustchmanlaw.com Bowa McHugh 43 Green LLC 1737 S. Michigan Avenue, Chicago, IL 60616 Chicago License # TGCO4 I 2 FL License # CG022029: TN License #67575 FILED DATE: 11/21/2023 10:53 AM 2023CH09568 SUBCONTRACT AGREEMENT SUBCONTRACT AGREEMENT NO.: 930-221000 Date of Subcontract: 01 / 10/2022 (“Subcontract Date”) Project: 930-43 Green (the “Project”) Project Location: 321 E. 43rd Street, Chicago, IL 60653 Owner: 43RD AND CALUMET PHASE I LP (the “Owner”) Subcontractor: CaIdwell Plumbing Company, Inc. (“Subconactor”) 821 Childs Street, Wheaton, IL 60187 (Address) Mike Tenerelli (Contact Person & Phone) (630) 588-8900 rnike@caIdwellplurnbing.net (Email Address) Scope of Work: Plumbing System Subcontract Agreement Amount: $1,814,115.15 (the “Subcontract Amount”) Bond Required: SDlQualified Subcontractor Serving as DIMNIWBE for Project (including engaging a second tier DIM/V1VvBE supplier or subcontractor): Yes 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. Assignments & 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. D/M/V/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 Bowa McHugh 43 Green LLC (“Bowa McHugh 43 Green” or “Contractor”) for the Project. To the extent Bowa McHugh 43 Green 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 Bowa McHugh 43 Green 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 Bowa McHugh 43 Green and Subcontractor as of the Subcontract Date. Bowa McHugh 43 Green and Subcontractor may be collectively referred to herein as the “Parties.” Bowa McHugh 43 Green and Subcontractor agree as detailed below. 1. CONTRACT DOCUMENTS .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 ofa conflict between two or more terms of this Subcontract Agreement or a term of this Subcontract Agreement and other Contract Exhibit A Subcontract #: 9.30-221000 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 10:53 AM 2023CH09568 1.2. All capitalized terms used herein shall have the meaning set forth in this Subcontract Agreement, or if the teriTis 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 Bowa McHugh 43 Green and are made available to Subcontractor. Subcontractor accepts responsibility for knowledge of the contents of such Contract Documents and acknowledges that but for such acceptance of responsibility, Bowa McHugh 43 Green would not enter into this Subcontract Agreement. Upon request, Bowa McHugh 43 Green will provide Subcontractor with a complete set of Contract Documents in, at the sole discretion of Bowa McHugh 43 Green, either paper format, electronic format or, in some combination thereof. Bowa McHugh 43 Green may at its discretion redact out of the Contract Documents such information which is not material to Subcontractor and/or which Bowa McHugh 43 Green or Owner deem proprietary. It is the responsibility of Subcontractor to carefully review the Contract Documents and to notify Bowa McHugh 43 Green of any errors in the Contract Documents that are discovered or reasonably should have been discovered by Subcontractor. Any failure of Subcontractor to notify Bowa McHugh 43 Green 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 rights Subcontractor has with respect to those errors. 1 .4. Subcontractor is bound to Bowa McHugh 43 Green by the Contract Documents and shall assume toward Bowa McHugh 43 Green, with respect to Subcontractor’s performance, the obligations and responsibilities that Bowa McHugh 43 Green assumes toward Owner in the Prime Contract. Bowa McHugh 43 Green shall have the benefit of all rights and remedies against Subcontractor, which Owner, by the Contract Documents, has against Bowa McHugh 43 Green, 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 Bowa McHugh 43 Green. 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. SCOPEOFWORK 2.1. Bowa McHugh 43 Green employs Subcontractor as an independent contractor to perforrri 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 Bowa McHugh 43 Green. 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 necessary 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 workers and supervision, who shall be satisfactory to Bowa McHugh 43 Green, (5) mobilizations as required by Page 2 of38 Version: 20210428 JM PM Subcontract Subcontract #: 930-221000 the Project and as directed by Bowa McHugh 43 Green; and (6) all things reasonably inferable from or implied in the Contract Documents, customarily provided by subcontractors in Subcontractor’s line of FILED DATE: 11/21/2023 10:53 AM 2023CH09568 work or necessary to complete such work for inspection and approval under the Contract Documents. 2.3. Subcontractor agrees to perfonn the Subcontract Work tinder the general direction of Bowa McHugh 43 Green but with its own onsite management and supervision, in strict conformity with the Contract Documents as reasonably determined by Bowa McHugh 43 Green, Architect, and Owner. Bowa McHugh 43 Green shall have the right, but not the obligation to exercise supervision over Subcontractor’s Work from time to time, but such supervision shall not, in any way, limit or diminish the obligations of Subcontractor under 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 Subcontractor. Subcontractor is an independent contractor and there is no intent or agreement that Bowa McHugh 43 Green shall be a joint employer of Subcontractor’s employees. 2.4. Subcontractor shall cooperate with Bowa McHugh 43 Green’s quality control department as required for the Project and implement such quality control measures as required by the Contract Documents and reasonably directed by Bowa McHugh 43 Green. Prior to the commencement of the Subcontract Work, if required by Bowa McHugh 43 Green, Subcontractor shall complete and furnish to Bowa McHugh 43 Green ajob specific quality control plan. Following approval of Subcontractor’s quality control plan by Bowa McHugh 43 Green, Subcontractor shall implement and comply with all the procedures and precautions set forth therein. 2.5. Subcontractor acknowledges and agrees that it has (1) 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, under (to the extent set forth in any geotechnical or other reports provided or otherwise available to Subcontractor describing the subsurface condition of the site), and affecting the site that Subcontractor deems necessary or desirable, based on Subcontractor’s skill, experience and knowledge, and (3) satisfied itself as to the nature and location of the Subcontract Work including all existing conditions. Therefore, Subcontractor hereby agrees that the Subcontractor’s discovery of any conditions during the course of the Subcontract 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 Subcontract 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, Bowa McHugh 43 Green shall pay to Subcontractor 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 Bowa McHugh 43 Green on the date designated by Bowa McHugh 43 Green. Applications shall be in AlA G702/703 format, unless otherwise specified by the Owner or Bowa McHugh 43 Green’s Project Accountant, and shall be accompanied by such other documentation as is reasonably required by Bowa McHugh 43 Green. Subcontractor must provide a detailed schedule of values in the G703 format separating material, equipment, labor, and subcontractors/suppliers where applicable. The schedule of values must have sufficient detail to allow accurate monthly reviews of completed Subcontract Work, but Bowa McHugh 43 Green’s use of the schedule of values shall not bind Bowa McHugh 43 Green or serve Page 3 of38 Version: 20210428 JM PM Subcontract Subcontract #: 930-221000 as a presumption that the schedule of values is accurate. When and if requested by but Bowa McHugh 43 Green or Owner, Subcontractor shall also submit to Bowa McHugh 43 Green its projected monthly cash FILED DATE: 11/21/2023 10:53 AM 2023CH09568 flow for the Subcontract Work. All G702s must be signed and notarized at the time of submission. 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 Bowa McHugh 43 Green. Subcontractor shall submit to Bowa McHugh 43 Green 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 Bowa McHugh 43 Green 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 Bowa McHugh 43 Green, shall be payable to Subcontractor within ten (10) business days after payment is received by Bowa McHugh 43 Green from Owner. The time for payment by Bowa McHugh 43 Green to Subcontractor shall commence with the receipt of payment from Owner to Bowa McHugh 43 Green. 3.3. Subcontractor acknowledges that Bowa McHugh 43 Green, 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 Bowa McHugh 43 Green, 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 Bowa McHugh 43 Green’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 Bowa McHugh 43 Green’s OBLIGATION TO MAKE SUCH PAYMENT TO SUBCONTRACTOR. When Owner’s payments to Bowa McHugh 43 Green are for less than the full amount requested and do not specifically identify which work performed by the various subcontractors is to be compensated, Bowa McHugh 43 Green 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 Bowa McHugh 43 Green, Bowa McHugh 43 Green shall have no obligation to make a payment to Subcontractor pursuant to this Subcontract Agreement. To the extent Bowa McHugh 43 Green has a payment or performance bond on the Project, Bowa McHugh 43 Green’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 Bowa McHugh 43 Green 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 Bowa McHugh 43 Green, Subcontractor shall obtain letters from each union to which its employees are members certif’ing that Subcontractor is current in all its union obligations. Page 4 of 38 Version: 20210428 JM PM Subcontract Subcontract II: 930-221000 3.9. In the event Bowa McHugh 43 Green receives evidence suggesting that Subcontractor has not made payments as it is required under the law or this Subcontract Agreement, Bowa McHugh 43 Green may FILED DATE: 11/21/2023 10:53 AM 2023CH09568 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 available to Bowa McHugh 43 Green 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 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. Bowa McHugh 43 Green may delay payment to Subcontractor upon receiving evidence that Subcontractor has not paid its debts related to the Project or other debts for which Bowa McHugh 43 Green could have responsibility in order to investigate the credibility of such a claim. 3.10. Final payment shall be made to Subcontractor after (I) Subcontractor has completed the Subcontract Work and it is accepted by Bowa McHugh 43 Green 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 Bowa McHugh 43 Green 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 Bowa McHugh 43 Green 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 Bowa McHugh 43 Green or the Contract Documents, Subcontractor has provided as-built drawings, and (10) Bowa McHugh 43 Green has received payment from Owner for all Subcontract Work. 3.1 1. Bowa McHugh 43 Green may deduct from any payment made pursuant to this Subcontract Agreement any sum owed to Bowa McHugh 43 Green 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, Bowa McHugh 43 Green, or Bowa McHugh 43 Green’s surety (if applicable), which claim or lien arises out of Subcontractor’s performance, Bowa McHugh 43 Green may, but is not required to, retain out of any payments due to Subcontractor an amount sufficient to protect Bowa McHugh 43 Green from any and all