Preview
FILED: QUEENS COUNTY CLERK 10/30/2023 05:28 PM INDEX NO. 711860/2023
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/30/2023
Halmar International LLC. TRANSMITTAL
421 East Route 59 No. 00198
Phone:(845) 735-3511
Nanuet, NY 10954 Fax: (845) 735-3388
PROJECT: H2003 - D900050 Van Wyck Contract 2 DATE: 05/19/2021
TO: JHB Engineering PLLC REF: H2003.13.018 JHB Engineering
400 Rella Blvd., Suite 165 Fully Executed
Montebello, NY 10901
ATTN: Fan Xi
WE ARE SENDING: SUBMITTED FOR: ACTION TAKEN:
Shop Drawings Approval Approved as Submitted
Letter √ Your Use Approved as Noted
Prints As Required Returned After Loan
Change Order Review and Comment Resubmit
Plans Submit
Samples SENT VIA: √ Returned
Specifications √ Attached Returned for Corrections
Other: Service Agreement Separate Cover Via: Due Date:
ITEM NO. COPIES DATE ITEM NUMBER REV. NO. DESCRIPTION STATUS
1 1 05/19/2021 H2003.13.018 CLO
Remarks: Please find attached full executed Service Agreement H2003.13.018 for your records.
CC: jobfile, DJC, H2003 Field Signed
Dennis Capolino
Primavera ®
FILED: QUEENS COUNTY CLERK 10/30/2023 05:28 PM INDEX NO. 711860/2023
NYSCEF DOC. NO. 43 421 East
RECEIVED NYSCEF: 59
Route 10/30/2023
D Nanuet, New York 10954
(845) 735-3511
(845) 735-3388 Fax
International
www.halmarinternational.com
SERVICE AGREEMENT
SA#: H2003.13.018
This Service Agreement (hereafter "Agreement") is made on this 12d1 day of May, 2021 by and between Halmar
International LLC, whose address is 421 East Route 59, Nanuet, NY 19954 (hereafter "Contractor") and
JHB Engineering PLLC
400 Rella Boulevard, Suite 165
Montebello, NY 10901
845-533-0215
Attention: Fan Xi
(hereafter "Subcontractor").
Contractor has entered into a contract
with New York State Department of Transportation (hereafter "Owner") for the
performance of certain
accordingwork
to the terms and conditions of said contract, including but not limited to the General,
Supplementary, Special and other Conditions and the general specifications, addenda, plans, drawings, maps and other
documents made a part thereof, all of which are herein collectively referred to as the "Contract". The project (hereafter
"Project") is generally described as follows:
Van Wyck and Access Improvement to JFK Airport - Contract 2
Expressway (VWE) Capacity
Pin X735.83, Contract D900050
"Parties"
Contractor and Subcontractor are from time to time referred to herein collectively as and individually as "Party".
1.0 SERVICES OF SUBCONTRACTOR:
1.1 Subcontractor agrees to perform the services and provide the materials set forth in Attachment A appended
hereto and incorporated herein by reference (hereafter "Services") as an Independent Contractor.
1.2 Subcontractor for the compensation set forth in Section 3 hereof, shall furnish all supervision and labor, and
furnish, supply and install all
equipment, materials and/or supplies and do all things necessary to fully perform and
complete the Services in a timely manner to the satisfaction of Contractor. Subcontractor shall perform its duties and
functions at all times in strict accordance with
currently approved and accepted methods and practices in its industry and in
accordance with all applicable federal, state and local statutes, ordnances, laws, rules and regulations.
2.0 TERM:
The term of this Agreement shall commence on, and shall continue in full force and effect thereafter until the first
to occur of:
" Completion and acceptance of the Services
" Date Certain
" Termination in accordance with Article 7.0 herein.
3.0 COMPENSATION:
For the full and complete performance of the Services to the satisfaction of Contractor, Contractor agrees to compensate
Subcontractor in the amount(s) and at the time(s) set forth in Attachment A appended hereto and incorporated herein by
reference.
An Equal Opportunity Employer
Halmar Initials Sub Initials /
Page 1 of 9
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NYSCEF DOC. NO. 43 H2003.13.018 - EB Engineering
RECEIVED NYSCEF:PLLC
10/30/2023
4.0 RECORDS:
Upon thewritten request of Contractor, Subcontractor shall keep and maintain such records relating to the Services
rendered as may be required by Contractor. Additionally, Subcontractor shall keep and maintain all records required by
federal, state or local statute, law, rule, ordinance or regulation pertaining or relating to the Services performed including,
without limitation, those pertaining to safety, environment and employment. Subcontractor shall make all records required
of it to be kept and maintained under this Section available to Contractor upon the request of Contractor.
5.0 BONDS:
Subcontractor, upon the request of Contractor, and at its own expense, shall procure and maintain throughout the term of
this Agreement a fidelity and/or performance bond in an amount and form and from a surety acceptable to Contractor.
6.0 INDEPENDENT SUBCONTRACTOR:
6.1 Subcontractor, its agents and employees shall act as an independent Subcontractor at all times during the
performance of the Services under this Agreement. Contractor shall neither have nor exercise any control or direction over
the methods by which Subcontractor, its employees and agents, shall perform their duties and functions hereunder. The
Parties shall in no way be deemed to be acting in a manner which would give rise to an agency relationship or as partners or
joint venturers. The sole interest of the Contractor is to assure that the duties and functions of Subcontractor hereunder
shall be performed and rendered in a competent, efficient and satisfactory manner in accordance with the highest
professional standards and the provisions of this Agreement.
6.2 Subcontractor shall be solely responsible for financing the performance of the Services and represents
and warrants that it is properly equipped to organize and perform the Services. Subcontractor shall pay all taxes, including
sales or use tax, unemployment insurance, sick or vacation pay, worker's compensation, disability and any other
employment related charge or cost imposed upon Subcontractor on behalf of its employees by any governmental body or
agency, incurred or payable with respect to this Agreement or Subcontractor's acts, transactions or materials, supplies or
services used by it in performance of the Services.
7.0 TERMINATION OR SUSPENSION OF SERVICES:
7.1 If Owner for any reason (including, but not limited to, Owner's convenience) terminates or suspends or
substantially changes the scope of the Services, or any portion of it under the Contract, Contractor may order Subcontractor
to terminate or suspend its performance of the Services, or any portion of it and Contractor shall not be liable in any way
for any such termination or suspension provided, however, that in the event that Contractor is compensated by Owner by
reason of such termination or suspension, then in such event Contractor shall pay to Subcontractor an equitable portion of
said sum based upon the Services performed.
7.2 In addition to Contractor's right to terminate or suspend the Services under Article 7.1 hereof, Contractor
may, at any time and for any reason, or no reason, terminate or suspend performance of the Services by Subcontractor at
Contractor's convenience by service of written notice upon Subcontractor. Upon receipt of such notice, Subcontractor
shall, unless the notice directs otherwise, immediately discontinue the Services and placing of orders for materials, facilities
and supplies in connection with the performance of this Agreement, and shall, unless otherwise directed, make every effort
to procure cancellation of all existing orders or contracts upon terms satisfactory to Contractor, or at the option of
Contractor, give Contractor the right to assume those obligations directly, including all benefits to be derived therefrom.
Subcontractor shall thereafter do only such work as may be necessary to preserve and protect the Services already in
progress and to protect material and equipment on the job site or in transit thereto.
7.2.1 Upon
such termination, Subcontractor shall be entitled to payment in accordance with Article 3.0 hereof,
only as follows:
(1) the actual cost of the Services completed in strict conformity with the Agreement Documents but not
paid for as of the termination date; plus (2) ten percent (10%) of the cost of the Services referred to in Article 7.1 above;
plus (3) such other actual termination costs incurred by Subcontractor and approved by Contractor.
An Equal Opportunity Employer
Halmar Initials Sub Initials
Page 2 of 9
FILED: QUEENS COUNTY CLERK 10/30/2023 05:28 PM INDEX NO. 711860/2023
NYSCEF DOC. NO. 43 H2003.13.018 - JHB
RECEIVED NYSCEF: 10/30/2023
PLLC
Engineering
7.2.2 In addition to those rights and obligations
set forth in 7.1, 7.2 and 7.2.1 above, should the Subcontractor
fail to perform in strict accordance with
Contract, the Prime
this Subcontract, or where or as the Contractor may so direct,
or should the Subcontractor become insolvent, unable to or fail to pay its obligations as they mature, or, in any other
respect, fail, in the opinion of the Contractor, to properly prosecute and perform any part of its work, fail to exert its best
performance efforts, be involved in labor disputes, or be terminated under any other contract with the Contractor, and/or
threaten to file and/or file for bankruptcy, then the Subcontractor will have materially breached this Subcontract. In case of
a material breach, as indicated herein or as might otherwise be determined by law, then this Subcontract will be deemed
terminated and notice of same shall be given by Contractor to Subcontractor. The Contractor may, at its discretion, reinstate
the Subcontract, or any part thereof, by giving written notice thereof to the Subcontractor, upon the same and/or different
terms as this Subcontract and such reinstatement shall be deemed good and sufficient consideration for same. In case of a
breach, as indicated herein or as might otherwise be determined by law, then the Contractor may, at its discretion, terminate
this Subcontract, or any part thereof, by giving written notice thereof to the Subcontractor. In case of such termination, the
Contractor may use any and all materials, equipment, plant, facilities, tools or other chattels furnished by or belonging to
the Subcontractor either at or for the Project. The Subcontractor, on termination, will be deemed to have offered to the
Contractor an assignment of all of its subcontracts and purchase orders relating to this Project. The Contractor may, at its
discretion, do whatever is necessary to assure performance of any terminated work, and to take such action, if necessary, in
the subcontractor's name. The Contractor may withhold from the Subcontractor any monies due or to become due under
this or any other contract to offset the damages incurred or possibly incurred as a result of the breach. In case of a breach,
the Subcontractor and its surety company shall be liable to the Contractor for any and all additional costs, expenses,
attorney's fees, and other damages, both liquidated and unliquidated, which directly or indirectly result from the
Subcontractor's breach or threatened breach.
8.0 INDEMNIFICATION
8.1 To the fullest extent permitted
by law, and except to the extent that the Contractor and/or Indemnified
Party is negligent, Subcontractor indemnify,shall defend (with counsel reasonably satisfactory to Contractor), and hold
harmless Contractor, Owner and any individual and/or entity that Contractor is required by contract and/or insurance to
indemnify, defend and/or hold harmless, and their officers, directors, agents and employees, and each of them, hereafter
Parties"
also collectively referred to as the "Indemnified and individually "Indemnified Party", from and against any and all
suits, actions, legal or administrative proceedings, claims, liens, debts, demands, damages, consequential damages,
liabilities, interest, actual attorney's fees, costs and expenses of whatever kind or nature, including, but not limited to,
defense of any such Claim as well as enforcement by any Indemnified Party, including, but not limited to, Contractor, to
that Party's right to indemnification under this provision, (hereafter also referred to as "Claims"), whether they may arise
before, during or after performance of Subcontractor's work and services under this Agreement and which in any manner
directly or indirectly arise from this Agreement , in whole or in part, and which arise out of Subcontractor's performance
under this Agreement, or anyone acting under its direction, control, or on its behalf or for which it is legally responsible, in
connection with or incident to the services and work under this Agreement and/or arising out of any failure of
Subcontractor to perform any of the terms and conditions of this Agreement; without limiting the generality of the
foregoing, the same shall include injury or death to any person or persons (including Subcontractor's employees) and
damage to any property, regardless of where located, including the property of Contractor, Owner(s) and/or any
Indemnified Party. Subcontractor's obligation to provide a defense for an Indemnified Party shall arise immediately
regardless of the merits of the matter; regardless of whether Subcontractor disputes its obligation to defend, indemnify
and/or hold harmless any Indemnified Party; and shall continue until a final determination of fault is made. Subcontractor
shall be relieved of and shall have no obligation to defend and/or indemnify an Indemnified Party under this Agreement to
the extent and upon a final determination that a Claim is due to the negligence or willful misconduct of that Indemnified
Party or such Party's agents or employees. Contractor and any Indemnified Party shall be entitled to recover actual attorney
fees and court costs and all other costs, expenses and liabilities incurred by any of them in an action brought to enforce all
or any part of this Article. Should Subcontractor fail to promptly assume its duty to defend any Claim, the Indemnified
Party and/or Parties may, at the sole option of each such Indemnified Party, provide for that defense through counsel of its
own choice and at Subcontractor's sole expense and Subcontractor agrees to pay all such defense costs so incurred by any
such Indemnified Party upon demand.
8.2 Subcontractor shall indemnify, defend and hold harmless the Indemnified Parties, and each of them, from
and against all claims, royalties, damages, liabilities, costs and expenses of whatever kind or nature (including attorney's
fees) in any manner resulting, or claimed to result from any alleged infringement of any letters patent or patent rights by
reason of the services, work, materials or processes used by Subcontractor, its lower tier subcontractors and/or suppliers or
others acting on its behalf, in the performance of the Services.
An Equal Opportunity Employer
Halmar Initials Sub Initials
Page 3 of 9
FILED: QUEENS COUNTY CLERK 10/30/2023 05:28 PM INDEX NO. 711860/2023
NYSCEF DOC. NO. 43 H2003.13.018 - JHB
RECEIVED NYSCEF:PLLC
10/30/2023
Engineering
8.3 The indemnification provisions of this Agreement shall survive termination of this Agreement and shall
extend to claims occurring after termination of this Agreement as well as while it is in force.
9.0 TIME IS OF THE ESSENCE:
Time is of the essence in the performance
by Subcontractor of its obligation hereunder. In the event any acts or omissions
by or of Subcontractor delay Contractor in the performance of the Contract and result in Contractor being subjected to any
penalties or liabilities under the Contract, Subcontractor agrees to indemnify, defend and hold Contractor harmless against
any liability for and to promptly pay to Contractor any penalties or liabilities so incurred and such other or additional
attorneys'
damages, including but not limited to fees, as Contractor may sustain by reason of Subcontractor's delay or
failure to perform. Performance under this Agreement shall be subject to such extensions of time as are deemed justifiable
for delays or failures to perform due to strikes, lockouts, acts of God or war, or to the extent allowed by Owner in
accordance with the Contract.
10.0 FORCE MAJEURE:
Majeure"
10.1 "Forceas used in this Agreement shall mean an act of God, act of public enemy, war, lightning,
fire, flood, explosion, earthquake, failure to timely receive necessary governmental approvals, government restraint, and
any other cause, whether of the kind specifically enumerated above or otherwise, other than financial inability, which is not
reasonably within the control of the Party claiming suspension.
10.2 If Subcontractor is rendered unable, wholly or in part, by Force Majeure to carry out its obligations under
this Agreement, Subcontractor shall give Contractor prompt written notice of the Force Majeure event with reasonably full
particulars concerning it; thereupon, the performance of Services by Subcontractor, so far as they were affected by the
Force Majeure event, shall be subject to such extensions of time only to the extent that Contractor shall be entitled to and
shall be allowed an extension of time on account thereof by Owner. Subcontractor shall act diligently to alleviate the
impact of a Force Majeure to the extent possible.
11.0 INSURANCE:
Subcontractor shall, at its sole cost and expense, procure and maintain in full force and effect at all times during the term of
this Agreement, negligence, public liability and property damage insurance, with reputable companies acceptable to
Contractor in accordance with and subject to the insurance requirements set forth with the requirements below.
11.1 Prior to starting work, Subcontractor, at its own expense, shall procure and maintain in force, on all of
its operations, primary insurance coverage in accordance with the requirements set forth below and as described in
Attachment B.
Subcontractor shall provide the Contractor with Certificate(s) of Insurance detailing the coverage referenced below within
thirty days after signing this agreement, but in any case, prior to commencing its work, whichever is earlier.
11.2 The policies of insurance shall be in such form and shall be issued by such company or companies as may
be satisfactory to Contractor. Contractor and such additional persons and entities as may be specified below, including, but
not limited to, the Indemnified Parties referenced in 11.6 (f), shall be named without limitation in the policy and/or policies
and/or endorsements to the policy and/or policies, as additional insureds on said policies, as shall any person or entity
which Contractor is required to insure and/or indemnify. Subcontractor shall maintain such insurance policies as will
protect the Contractor, the Indemnified Parties and the Subcontractor from Claims for damages because of bodily injury,
including, but not limited to, death, as well as property damage, which may arise both out of and during its performance
under this Agreement and/or after completion thereof. Before commencing the work, Subcontractor shall fumish
Contractor with certificates of insurance from the insuring companies which certificates shall specify the effective dates of
the policies, the limits of liability there under, and contain a provision that the said insurance will not be canceled except
upon sixty (60) days notice in writing to Contractor. In addition, within thirty (30) days of execution of this Agreement, the
Subcontractor shall provide the Contractor with a certified copy of the relevant insurance policy and/or policies and all
blanket contractual additional insured and/or other relevant endorsements. Subcontractor shall maintain full and complete
insurance on its work until final acceptance of the Prime Contract work. Subcontractor shall not cancel any policies of
insurance required hereunder either before or after completion of the work without written consent of Contractor.
An Equal Opportunity Employer
Halmar Initials Sub Initials
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RECEIVED NYSCEF: 10/30/2023
11.3 Subcontractor may use a combination of General Liability Insurance and Excess Liability Insurance
provided the sum of these insurance at least equals the amounts listed for the General Liability Insurance. If Excess
Form"
Liability Insurance is used, "Umbrella must be furnished at the discretion of Contractor.
11.4 The carrying of insurance shall not be deemed to release Subcontractor or in any way diminish its
liability, by way of indemnity or otherwise, as assumed by it under this Subcontract. Contractor shall furnish, at
Subcontractor's request, satisfactory evidence of such insurance as Contractor may be required to obtain pursuant to the
Contract Documents.
11.5 Notwithstanding applicable law, the Contractor and Subcontractor agree that damages for Subcontractor's
failure to purchase any coverage required under this Agreement will not be limited
loss suffered by to either out of pocket
an Indemnified Party as a result of any such failure nor will damages be limited to the cost of the premiums that would have
purchased the required coverage which Subcontractor failed to purchase but shall include, but not necessarily be limited to,
the greater of the limits of coverage that Subcontractor failed to purchase or the amount of damages suffered by anyone
and/or any entity making a Claim.
Subcontractor is required to provide the following coverages and, where noted, required to do the following:
11.6 Commercial General Liability (CGL) coverage
a) The minimum limits and special conditions of such CGL Insurance of not less than $2,000,000 each
occurrence and $4,000,000 aggregate (applicable separately to this Project).
b) If the CGL coverage contains a General Aggregate Limit, such General Aggregate shall apply
separately to each project.
c) CGL coverage shall be written on ISO Occurrence form CG 00 01 12 07 or a substitute form
providing equivalent coverage and shall
liability cover
arising from premises, operations, independent
contractors, products-completed operations, and personal and advertising injury (contractual exclusion
deleted), explosion, collapse and underground property, and incidental malpractice.
d) Contractor, Owner, the Indemnified Parties and all other parties who Contractor is required to name or
Contractor requests be named as additional insureds, shall be included as insureds on the CGL, using
ISO Additional Insured Endorsement CG 20 10 11 85, CG 20 37 07 04, CG 20 33 07 98 when used in
combination with CG 20 37 07 04, or CG 20 33 10 01 or an endorsement providing equivalent or
broader coverage to the additional insureds. The coverage provided to the additional insureds under
the policy issued to the Subcontractor shall be at least as broad as the coverage provided to the
Subcontractor under the policy. Coverage for the additional insureds shall apply as Primary and non-
contributing Insurance before any other insurance or self-insurance, including any deductible,
maintained by, or provided to, the additional insureds.
e) Subcontractor shall maintain CGL coverage for itself and all additional insureds for the duration of
the project and maintain Completed Operations coverage for itself and each additional insured for at
least 3 years after completion of the Work.
f) Additional Insured:
Reference Attachment B for project specific requirements. At a minimum, Halmar International LLC,
any municipality in which the work is being performed, any public benefit corporation, railroad, or
public utility whose property or facilities are affected by the work, any consultant inspecting engineer
or inspector working for or on the project, and their agents or employees and any other individual
and/or entity which Halmar International LLC is required to indemnify and/or name as additional
insured for the work in question and/or any other individual and/or entity that Halmar International
LLC requests be named as additional insured for the work at issue. Subcontractor agrees that its
purchase of any policy and/or endorsement which limits or excludes insurance indemnification and/or
coverage for any reason, including, but not limited to, excluding coverage to any additional insured
for injury to an employee of Subcontractor and/or any additional insured, will constitute a default
under this Agreement, making Subcontractor liable for the full extent of damages as noted above in
Subsection 11.5.
An Equal Opportunity Employer
Halmar Initials Sub Initials
Page 5 of 9
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RECEIVED NYSCEF: 10/30/2023
PLLC
Engineering
Workers'
11.7 Compensation and DisabEty Insurance
workers'
a) As required by State Finance Law Section142, maintain in force compensation insurance upon
forms required by or acceptable to the Workers Compensation Board.
b) Employers Liability Insurance limits of at least $1,000,000 each accident for bodily injury by accident
and $1,000,000 each employee for injury by disease.
c) Where applicable, U.S. Longshore and Harbor Workers Compensation Act Endorsement shall be attached
to the policy.
d) Where applicable, the Maritime Coverage Endorsement shall be attached to the policy.
e) Disability Benefits shall be statutory per New York State law without regard to jurisdiction.
11.8 Commercial Automobile Liability
a) Business Auto Liability with limits of at least $1,000,000 each accident (ISO form CA 00 01 10 01, CA
00 01 01 87 or a policy form providing equivalent coverage along with mandatory New York
endorsements).
b) Business Auto coverage must include coverage for liability arising out of all owned, leased, hired and
non-owned automobiles.
c) General Contractor, Owner and all other parties required of the General Contractor, shall be included as
insureds on the auto policy.
d) If vehicles are used for transporting hazardous materials, the Subcontractor shall provide pollution
liability broadened coverage for covered autos (endorsement ISO form CG 04 33 10 01 or equivalent)
Preview
FILED: QUEENS COUNTY CLERK 10/30/2023 05:28 PM INDEX NO. 711860/2023 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/30/2023 Halmar International LLC. TRANSMITTAL 421 East Route 59 No. 00198 Phone:(845) 735-3511 Nanuet, NY 10954 Fax: (845) 735-3388 PROJECT: H2003 - D900050 Van Wyck Contract 2 DATE: 05/19/2021 TO: JHB Engineering PLLC REF: H2003.13.018 JHB Engineering 400 Rella Blvd., Suite 165 Fully Executed Montebello, NY 10901 ATTN: Fan Xi WE ARE SENDING: SUBMITTED FOR: ACTION TAKEN: Shop Drawings Approval Approved as Submitted Letter √ Your Use Approved as Noted Prints As Required Returned After Loan Change Order Review and Comment Resubmit Plans Submit Samples SENT VIA: √ Returned Specifications √ Attached Returned for Corrections Other: Service Agreement Separate Cover Via: Due Date: ITEM NO. COPIES DATE ITEM NUMBER REV. NO. DESCRIPTION STATUS 1 1 05/19/2021 H2003.13.018 CLO Remarks: Please find attached full executed Service Agreement H2003.13.018 for your records. CC: jobfile, DJC, H2003 Field Signed Dennis Capolino Primavera ® FILED: QUEENS COUNTY CLERK 10/30/2023 05:28 PM INDEX NO. 711860/2023 NYSCEF DOC. NO. 43 421 East RECEIVED NYSCEF: 59 Route 10/30/2023 D Nanuet, New York 10954 (845) 735-3511 (845) 735-3388 Fax International www.halmarinternational.com SERVICE AGREEMENT SA#: H2003.13.018 This Service Agreement (hereafter "Agreement") is made on this 12d1 day of May, 2021 by and between Halmar International LLC, whose address is 421 East Route 59, Nanuet, NY 19954 (hereafter "Contractor") and JHB Engineering PLLC 400 Rella Boulevard, Suite 165 Montebello, NY 10901 845-533-0215 Attention: Fan Xi (hereafter "Subcontractor"). Contractor has entered into a contract with New York State Department of Transportation (hereafter "Owner") for the performance of certain accordingwork to the terms and conditions of said contract, including but not limited to the General, Supplementary, Special and other Conditions and the general specifications, addenda, plans, drawings, maps and other documents made a part thereof, all of which are herein collectively referred to as the "Contract". The project (hereafter "Project") is generally described as follows: Van Wyck and Access Improvement to JFK Airport - Contract 2 Expressway (VWE) Capacity Pin X735.83, Contract D900050 "Parties" Contractor and Subcontractor are from time to time referred to herein collectively as and individually as "Party". 1.0 SERVICES OF SUBCONTRACTOR: 1.1 Subcontractor agrees to perform the services and provide the materials set forth in Attachment A appended hereto and incorporated herein by reference (hereafter "Services") as an Independent Contractor. 1.2 Subcontractor for the compensation set forth in Section 3 hereof, shall furnish all supervision and labor, and furnish, supply and install all equipment, materials and/or supplies and do all things necessary to fully perform and complete the Services in a timely manner to the satisfaction of Contractor. Subcontractor shall perform its duties and functions at all times in strict accordance with currently approved and accepted methods and practices in its industry and in accordance with all applicable federal, state and local statutes, ordnances, laws, rules and regulations. 2.0 TERM: The term of this Agreement shall commence on, and shall continue in full force and effect thereafter until the first to occur of: " Completion and acceptance of the Services " Date Certain " Termination in accordance with Article 7.0 herein. 3.0 COMPENSATION: For the full and complete performance of the Services to the satisfaction of Contractor, Contractor agrees to compensate Subcontractor in the amount(s) and at the time(s) set forth in Attachment A appended hereto and incorporated herein by reference. An Equal Opportunity Employer Halmar Initials Sub Initials / Page 1 of 9 FILED: QUEENS COUNTY CLERK 10/30/2023 05:28 PM INDEX NO. 711860/2023 NYSCEF DOC. NO. 43 H2003.13.018 - EB Engineering RECEIVED NYSCEF:PLLC 10/30/2023 4.0 RECORDS: Upon thewritten request of Contractor, Subcontractor shall keep and maintain such records relating to the Services rendered as may be required by Contractor. Additionally, Subcontractor shall keep and maintain all records required by federal, state or local statute, law, rule, ordinance or regulation pertaining or relating to the Services performed including, without limitation, those pertaining to safety, environment and employment. Subcontractor shall make all records required of it to be kept and maintained under this Section available to Contractor upon the request of Contractor. 5.0 BONDS: Subcontractor, upon the request of Contractor, and at its own expense, shall procure and maintain throughout the term of this Agreement a fidelity and/or performance bond in an amount and form and from a surety acceptable to Contractor. 6.0 INDEPENDENT SUBCONTRACTOR: 6.1 Subcontractor, its agents and employees shall act as an independent Subcontractor at all times during the performance of the Services under this Agreement. Contractor shall neither have nor exercise any control or direction over the methods by which Subcontractor, its employees and agents, shall perform their duties and functions hereunder. The Parties shall in no way be deemed to be acting in a manner which would give rise to an agency relationship or as partners or joint venturers. The sole interest of the Contractor is to assure that the duties and functions of Subcontractor hereunder shall be performed and rendered in a competent, efficient and satisfactory manner in accordance with the highest professional standards and the provisions of this Agreement. 6.2 Subcontractor shall be solely responsible for financing the performance of the Services and represents and warrants that it is properly equipped to organize and perform the Services. Subcontractor shall pay all taxes, including sales or use tax, unemployment insurance, sick or vacation pay, worker's compensation, disability and any other employment related charge or cost imposed upon Subcontractor on behalf of its employees by any governmental body or agency, incurred or payable with respect to this Agreement or Subcontractor's acts, transactions or materials, supplies or services used by it in performance of the Services. 7.0 TERMINATION OR SUSPENSION OF SERVICES: 7.1 If Owner for any reason (including, but not limited to, Owner's convenience) terminates or suspends or substantially changes the scope of the Services, or any portion of it under the Contract, Contractor may order Subcontractor to terminate or suspend its performance of the Services, or any portion of it and Contractor shall not be liable in any way for any such termination or suspension provided, however, that in the event that Contractor is compensated by Owner by reason of such termination or suspension, then in such event Contractor shall pay to Subcontractor an equitable portion of said sum based upon the Services performed. 7.2 In addition to Contractor's right to terminate or suspend the Services under Article 7.1 hereof, Contractor may, at any time and for any reason, or no reason, terminate or suspend performance of the Services by Subcontractor at Contractor's convenience by service of written notice upon Subcontractor. Upon receipt of such notice, Subcontractor shall, unless the notice directs otherwise, immediately discontinue the Services and placing of orders for materials, facilities and supplies in connection with the performance of this Agreement, and shall, unless otherwise directed, make every effort to procure cancellation of all existing orders or contracts upon terms satisfactory to Contractor, or at the option of Contractor, give Contractor the right to assume those obligations directly, including all benefits to be derived therefrom. Subcontractor shall thereafter do only such work as may be necessary to preserve and protect the Services already in progress and to protect material and equipment on the job site or in transit thereto. 7.2.1 Upon such termination, Subcontractor shall be entitled to payment in accordance with Article 3.0 hereof, only as follows: (1) the actual cost of the Services completed in strict conformity with the Agreement Documents but not paid for as of the termination date; plus (2) ten percent (10%) of the cost of the Services referred to in Article 7.1 above; plus (3) such other actual termination costs incurred by Subcontractor and approved by Contractor. An Equal Opportunity Employer Halmar Initials Sub Initials Page 2 of 9 FILED: QUEENS COUNTY CLERK 10/30/2023 05:28 PM INDEX NO. 711860/2023 NYSCEF DOC. NO. 43 H2003.13.018 - JHB RECEIVED NYSCEF: 10/30/2023 PLLC Engineering 7.2.2 In addition to those rights and obligations set forth in 7.1, 7.2 and 7.2.1 above, should the Subcontractor fail to perform in strict accordance with Contract, the Prime this Subcontract, or where or as the Contractor may so direct, or should the Subcontractor become insolvent, unable to or fail to pay its obligations as they mature, or, in any other respect, fail, in the opinion of the Contractor, to properly prosecute and perform any part of its work, fail to exert its best performance efforts, be involved in labor disputes, or be terminated under any other contract with the Contractor, and/or threaten to file and/or file for bankruptcy, then the Subcontractor will have materially breached this Subcontract. In case of a material breach, as indicated herein or as might otherwise be determined by law, then this Subcontract will be deemed terminated and notice of same shall be given by Contractor to Subcontractor. The Contractor may, at its discretion, reinstate the Subcontract, or any part thereof, by giving written notice thereof to the Subcontractor, upon the same and/or different terms as this Subcontract and such reinstatement shall be deemed good and sufficient consideration for same. In case of a breach, as indicated herein or as might otherwise be determined by law, then the Contractor may, at its discretion, terminate this Subcontract, or any part thereof, by giving written notice thereof to the Subcontractor. In case of such termination, the Contractor may use any and all materials, equipment, plant, facilities, tools or other chattels furnished by or belonging to the Subcontractor either at or for the Project. The Subcontractor, on termination, will be deemed to have offered to the Contractor an assignment of all of its subcontracts and purchase orders relating to this Project. The Contractor may, at its discretion, do whatever is necessary to assure performance of any terminated work, and to take such action, if necessary, in the subcontractor's name. The Contractor may withhold from the Subcontractor any monies due or to become due under this or any other contract to offset the damages incurred or possibly incurred as a result of the breach. In case of a breach, the Subcontractor and its surety company shall be liable to the Contractor for any and all additional costs, expenses, attorney's fees, and other damages, both liquidated and unliquidated, which directly or indirectly result from the Subcontractor's breach or threatened breach. 8.0 INDEMNIFICATION 8.1 To the fullest extent permitted by law, and except to the extent that the Contractor and/or Indemnified Party is negligent, Subcontractor indemnify,shall defend (with counsel reasonably satisfactory to Contractor), and hold harmless Contractor, Owner and any individual and/or entity that Contractor is required by contract and/or insurance to indemnify, defend and/or hold harmless, and their officers, directors, agents and employees, and each of them, hereafter Parties" also collectively referred to as the "Indemnified and individually "Indemnified Party", from and against any and all suits, actions, legal or administrative proceedings, claims, liens, debts, demands, damages, consequential damages, liabilities, interest, actual attorney's fees, costs and expenses of whatever kind or nature, including, but not limited to, defense of any such Claim as well as enforcement by any Indemnified Party, including, but not limited to, Contractor, to that Party's right to indemnification under this provision, (hereafter also referred to as "Claims"), whether they may arise before, during or after performance of Subcontractor's work and services under this Agreement and which in any manner directly or indirectly arise from this Agreement , in whole or in part, and which arise out of Subcontractor's performance under this Agreement, or anyone acting under its direction, control, or on its behalf or for which it is legally responsible, in connection with or incident to the services and work under this Agreement and/or arising out of any failure of Subcontractor to perform any of the terms and conditions of this Agreement; without limiting the generality of the foregoing, the same shall include injury or death to any person or persons (including Subcontractor's employees) and damage to any property, regardless of where located, including the property of Contractor, Owner(s) and/or any Indemnified Party. Subcontractor's obligation to provide a defense for an Indemnified Party shall arise immediately regardless of the merits of the matter; regardless of whether Subcontractor disputes its obligation to defend, indemnify and/or hold harmless any Indemnified Party; and shall continue until a final determination of fault is made. Subcontractor shall be relieved of and shall have no obligation to defend and/or indemnify an Indemnified Party under this Agreement to the extent and upon a final determination that a Claim is due to the negligence or willful misconduct of that Indemnified Party or such Party's agents or employees. Contractor and any Indemnified Party shall be entitled to recover actual attorney fees and court costs and all other costs, expenses and liabilities incurred by any of them in an action brought to enforce all or any part of this Article. Should Subcontractor fail to promptly assume its duty to defend any Claim, the Indemnified Party and/or Parties may, at the sole option of each such Indemnified Party, provide for that defense through counsel of its own choice and at Subcontractor's sole expense and Subcontractor agrees to pay all such defense costs so incurred by any such Indemnified Party upon demand. 8.2 Subcontractor shall indemnify, defend and hold harmless the Indemnified Parties, and each of them, from and against all claims, royalties, damages, liabilities, costs and expenses of whatever kind or nature (including attorney's fees) in any manner resulting, or claimed to result from any alleged infringement of any letters patent or patent rights by reason of the services, work, materials or processes used by Subcontractor, its lower tier subcontractors and/or suppliers or others acting on its behalf, in the performance of the Services. An Equal Opportunity Employer Halmar Initials Sub Initials Page 3 of 9 FILED: QUEENS COUNTY CLERK 10/30/2023 05:28 PM INDEX NO. 711860/2023 NYSCEF DOC. NO. 43 H2003.13.018 - JHB RECEIVED NYSCEF:PLLC 10/30/2023 Engineering 8.3 The indemnification provisions of this Agreement shall survive termination of this Agreement and shall extend to claims occurring after termination of this Agreement as well as while it is in force. 9.0 TIME IS OF THE ESSENCE: Time is of the essence in the performance by Subcontractor of its obligation hereunder. In the event any acts or omissions by or of Subcontractor delay Contractor in the performance of the Contract and result in Contractor being subjected to any penalties or liabilities under the Contract, Subcontractor agrees to indemnify, defend and hold Contractor harmless against any liability for and to promptly pay to Contractor any penalties or liabilities so incurred and such other or additional attorneys' damages, including but not limited to fees, as Contractor may sustain by reason of Subcontractor's delay or failure to perform. Performance under this Agreement shall be subject to such extensions of time as are deemed justifiable for delays or failures to perform due to strikes, lockouts, acts of God or war, or to the extent allowed by Owner in accordance with the Contract. 10.0 FORCE MAJEURE: Majeure" 10.1 "Forceas used in this Agreement shall mean an act of God, act of public enemy, war, lightning, fire, flood, explosion, earthquake, failure to timely receive necessary governmental approvals, government restraint, and any other cause, whether of the kind specifically enumerated above or otherwise, other than financial inability, which is not reasonably within the control of the Party claiming suspension. 10.2 If Subcontractor is rendered unable, wholly or in part, by Force Majeure to carry out its obligations under this Agreement, Subcontractor shall give Contractor prompt written notice of the Force Majeure event with reasonably full particulars concerning it; thereupon, the performance of Services by Subcontractor, so far as they were affected by the Force Majeure event, shall be subject to such extensions of time only to the extent that Contractor shall be entitled to and shall be allowed an extension of time on account thereof by Owner. Subcontractor shall act diligently to alleviate the impact of a Force Majeure to the extent possible. 11.0 INSURANCE: Subcontractor shall, at its sole cost and expense, procure and maintain in full force and effect at all times during the term of this Agreement, negligence, public liability and property damage insurance, with reputable companies acceptable to Contractor in accordance with and subject to the insurance requirements set forth with the requirements below. 11.1 Prior to starting work, Subcontractor, at its own expense, shall procure and maintain in force, on all of its operations, primary insurance coverage in accordance with the requirements set forth below and as described in Attachment B. Subcontractor shall provide the Contractor with Certificate(s) of Insurance detailing the coverage referenced below within thirty days after signing this agreement, but in any case, prior to commencing its work, whichever is earlier. 11.2 The policies of insurance shall be in such form and shall be issued by such company or companies as may be satisfactory to Contractor. Contractor and such additional persons and entities as may be specified below, including, but not limited to, the Indemnified Parties referenced in 11.6 (f), shall be named without limitation in the policy and/or policies and/or endorsements to the policy and/or policies, as additional insureds on said policies, as shall any person or entity which Contractor is required to insure and/or indemnify. Subcontractor shall maintain such insurance policies as will protect the Contractor, the Indemnified Parties and the Subcontractor from Claims for damages because of bodily injury, including, but not limited to, death, as well as property damage, which may arise both out of and during its performance under this Agreement and/or after completion thereof. Before commencing the work, Subcontractor shall fumish Contractor with certificates of insurance from the insuring companies which certificates shall specify the effective dates of the policies, the limits of liability there under, and contain a provision that the said insurance will not be canceled except upon sixty (60) days notice in writing to Contractor. In addition, within thirty (30) days of execution of this Agreement, the Subcontractor shall provide the Contractor with a certified copy of the relevant insurance policy and/or policies and all blanket contractual additional insured and/or other relevant endorsements. Subcontractor shall maintain full and complete insurance on its work until final acceptance of the Prime Contract work. Subcontractor shall not cancel any policies of insurance required hereunder either before or after completion of the work without written consent of Contractor. An Equal Opportunity Employer Halmar Initials Sub Initials Page 4 of 9 FILED: QUEENS COUNTY CLERK 10/30/2023 05:28 PM INDEX NO. 711860/2023 NYSCEF DOC. NO. 43 H2003.13.018 - JHB EngineeringPLLC RECEIVED NYSCEF: 10/30/2023 11.3 Subcontractor may use a combination of General Liability Insurance and Excess Liability Insurance provided the sum of these insurance at least equals the amounts listed for the General Liability Insurance. If Excess Form" Liability Insurance is used, "Umbrella must be furnished at the discretion of Contractor. 11.4 The carrying of insurance shall not be deemed to release Subcontractor or in any way diminish its liability, by way of indemnity or otherwise, as assumed by it under this Subcontract. Contractor shall furnish, at Subcontractor's request, satisfactory evidence of such insurance as Contractor may be required to obtain pursuant to the Contract Documents. 11.5 Notwithstanding applicable law, the Contractor and Subcontractor agree that damages for Subcontractor's failure to purchase any coverage required under this Agreement will not be limited loss suffered by to either out of pocket an Indemnified Party as a result of any such failure nor will damages be limited to the cost of the premiums that would have purchased the required coverage which Subcontractor failed to purchase but shall include, but not necessarily be limited to, the greater of the limits of coverage that Subcontractor failed to purchase or the amount of damages suffered by anyone and/or any entity making a Claim. Subcontractor is required to provide the following coverages and, where noted, required to do the following: 11.6 Commercial General Liability (CGL) coverage a) The minimum limits and special conditions of such CGL Insurance of not less than $2,000,000 each occurrence and $4,000,000 aggregate (applicable separately to this Project). b) If the CGL coverage contains a General Aggregate Limit, such General Aggregate shall apply separately to each project. c) CGL coverage shall be written on ISO Occurrence form CG 00 01 12 07 or a substitute form providing equivalent coverage and shall liability cover arising from premises, operations, independent contractors, products-completed operations, and personal and advertising injury (contractual exclusion deleted), explosion, collapse and underground property, and incidental malpractice. d) Contractor, Owner, the Indemnified Parties and all other parties who Contractor is required to name or Contractor requests be named as additional insureds, shall be included as insureds on the CGL, using ISO Additional Insured Endorsement CG 20 10 11 85, CG 20 37 07 04, CG 20 33 07 98 when used in combination with CG 20 37 07 04, or CG 20 33 10 01 or an endorsement providing equivalent or broader coverage to the additional insureds. The coverage provided to the additional insureds under the policy issued to the Subcontractor shall be at least as broad as the coverage provided to the Subcontractor under the policy. Coverage for the additional insureds shall apply as Primary and non- contributing Insurance before any other insurance or self-insurance, including any deductible, maintained by, or provided to, the additional insureds. e) Subcontractor shall maintain CGL coverage for itself and all additional insureds for the duration of the project and maintain Completed Operations coverage for itself and each additional insured for at least 3 years after completion of the Work. f) Additional Insured: Reference Attachment B for project specific requirements. At a minimum, Halmar International LLC, any municipality in which the work is being performed, any public benefit corporation, railroad, or public utility whose property or facilities are affected by the work, any consultant inspecting engineer or inspector working for or on the project, and their agents or employees and any other individual and/or entity which Halmar International LLC is required to indemnify and/or name as additional insured for the work in question and/or any other individual and/or entity that Halmar International LLC requests be named as additional insured for the work at issue. Subcontractor agrees that its purchase of any policy and/or endorsement which limits or excludes insurance indemnification and/or coverage for any reason, including, but not limited to, excluding coverage to any additional insured for injury to an employee of Subcontractor and/or any additional insured, will constitute a default under this Agreement, making Subcontractor liable for the full extent of damages as noted above in Subsection 11.5. An Equal Opportunity Employer Halmar Initials Sub Initials Page 5 of 9 FILED: QUEENS COUNTY CLERK 10/30/2023 05:28 PM INDEX NO. 711860/2023 NYSCEF DOC. NO. 43 H2003.13.018 - MB RECEIVED NYSCEF: 10/30/2023 PLLC Engineering Workers' 11.7 Compensation and DisabEty Insurance workers' a) As required by State Finance Law Section142, maintain in force compensation insurance upon forms required by or acceptable to the Workers Compensation Board. b) Employers Liability Insurance limits of at least $1,000,000 each accident for bodily injury by accident and $1,000,000 each employee for injury by disease. c) Where applicable, U.S. Longshore and Harbor Workers Compensation Act Endorsement shall be attached to the policy. d) Where applicable, the Maritime Coverage Endorsement shall be attached to the policy. e) Disability Benefits shall be statutory per New York State law without regard to jurisdiction. 11.8 Commercial Automobile Liability a) Business Auto Liability with limits of at least $1,000,000 each accident (ISO form CA 00 01 10 01, CA 00 01 01 87 or a policy form providing equivalent coverage along with mandatory New York endorsements). b) Business Auto coverage must include coverage for liability arising out of all owned, leased, hired and non-owned automobiles. c) General Contractor, Owner and all other parties required of the General Contractor, shall be included as insureds on the auto policy. d) If vehicles are used for transporting hazardous materials, the Subcontractor shall provide pollution liability broadened coverage for covered autos (endorsement ISO form CG 04 33 10 01 or equivalent)