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FILED: WESTCHESTER COUNTY CLERK 01/18/2024 08:43 AM INDEX NO. 55548/2023
DocuSign Envelope ID: 4C1A753F-6E6A-4EC4-AC52-3BA5087FC582
NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/18/2024
SUBCONTRACT
THE WHITING-TURNER CONTRACTING COMPANY
Address Reply to: THE WHITING-TURNER CONTRACTING COMPANY
707 Westchester Ave Suite 101
White Plains, NY 10604
SUBCONTRACT NO. 016587.VIL.09F
SUBCONTRACT FOR Prefabricated Panels & MEPs
SUBCONTRACTOR Blueprint Partners Corp.
Address 1500 Broening Highway Suite 100
Baltimore, MD 21224
Remittance Address 1500 Broening Highway Suite 100
Baltimore, MD 21224
OWNER Purchase Senior Learning Community, Inc., as Assignee
735 Anderson Hill Road
Purchase, NY 10577
PROJECT Broadview Senior Living Community
735 Anderson Hill Road
Purchase, NY 10577
This agreement, made this 106 day of November, 2021, by and between Blueprint Partners Corp. hereinafter
called the Subcontractor, and THE WHITING-TURNER CONTRACTING COMPANY, of Baltimore Maryland, with its
principal office located at 300 East Joppa Road, Baltimore, Maryland, a body corporate of the State of Maryland,
hereinafter called the Contractor,
WITNESSETH, that the Subcontractor and Contractor for the consideration hereinafter named, agree as
follows:
ARTICLE 1. DEFINITIONS-
(a) As used herein, the following terms shall have the meanings indicated:
"Architect" or "Engineer" means the architect or engineer directing the work as agent of the Owner, or any
other person authorized by the General Contract to direct or pass upon any matter or thing connected with the performance
of the General Contract.
"Contract Documents" means (a) the General Contract, (b) all general, supplementary and other conditions
applicable to the Project, (c) the Drawings and Specifications, and (d) all bulletins and addenda issued in connection with
the Project.
"Drawings and Specifications" means the drawings and specifications described in Article 2 hereof, and all
addenda and/or revisions thereto.
"General Contract" means the contract executed or to be executed by the Owner and the Contractor in
connection with the construction of the Project and any amendments thereto.
Where the contract entered into between Owner and Contractor is a Construction Management Agreement, the
"Contractor"
term shall be deemed to mean "Construction Manager".
"Subcontract"
means this document and all of the Contract Documents which shall be made a part of this
Subcontract and are incorporated herein by reference.
"Contractor" is used in the
(b) Where the term Specifications, insofar as it has application to the work required
to be done by the Subcontractor as provided herein, it shall be deemed for the purposes hereof to refer to the
Subcontractor. The term "Contractor" or "General Contractor" when used in the Contract Documents shall be deemed to
make reference to the Subcontractor insofar as it has application to the work covered by this Subcontract. The term
"Subcontractor" "it" whether Subcontractor is incorporated or not.
may be referred to as
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ARTICLE 2. SCOPE OF WORK--The work to be performed and materials to be furnished by the Subcontractor are
as specified in Article 3 hereof and in accordance with Drawings and Specifications prepared by HCM Design, Inc. and
Divney, Tung, Schwalbe, LLP dated *See Exhibit G - Contract Document Log, and as set forth in Exhibit B.
ARTICLE 3. PROVISION OF LABOR AND MATERIALS-
(a) The Subcontractor agrees to furnish and pay for all labor and supervision, tools, apparatus, supplies, equipment,
and services, and also to furnish, deliver, install, and pay for all materials necessary for the performance and completion
of the work described under the Scope of Work, free from all claims and liens of materialmen, suppliers, laborers,
truckers, subcontractors, and others making claims through the Subcontractor. All such work shall be done to the
satisfaction of the Owner, the Architect and/or Engineer, and the Contractor in accordance with the Contract Documents.
Subcontractor agrees to submit daily work reports and monthly progress reports and schedule updates upon request by
the Contractor. The Subcontractor agrees that with respect to the Scope of Work hereunder it will stand in the Contractor's
shoes with respect to the Contractor's obligations to the Owner under the Contract Documents and will perform all work
and obligations as set forth on the Contract Documents to the satisfaction of the Owner. At all times that Subcontractor
has personnel at the Project site, it shall also have present an authorized representative of Subcontractor who shall
supervise and direct Subcontractor's personnel and be responsible for their actions. Such representative shall be
authorized to act on behalf of the Subcontractor and communications to such representative shall be binding upon
Subcontractor.
(b) In the event any deviations from the Contract Documents are incorporated in any shop drawings of or by the
Subcontractor, such deviations and the reasons therefore shall be fully explained in writing by separate letter to the
Contractor and Owner at the time the shop drawings are submitted to the Contractor and Owner. Failure to so specify
and explain any such deviation will automatically void any inadvertent approval of the same by the Contractor, Architect,
Engineer and/or Owner.
(c) The Subcontractor represents and warrants that it is an expert in the particular line or lines of work herein
contracted to be done and that it is competent to know whether the materials, methods and apparatus specified for this
work are sufficient and suitable to secure the results contemplated by the Contract Documents. The Subcontractor shal_1
be responsible for fulfilling the requirements of the Contract Documents. Subcontractor agrees to cooperate in carrying
out Contractor's quality assurance program including, but not limited to, furnishing necessary documentation and
facilitating inspections and quality checks.
(d) In the event that Subcontractor employs union labor the Subcontractor agrees to be bound by the terms and
provisions of the agreement establishing the Impartial Jurisdictional Disputes Board, any such successor Board, or any
subsequent method agreed to be employers and the unions affiliated with the Building and Construction Trades
Department, AFL-CIO, for the settlement of jurisdictional disputes. The Subcontractor also agrees that any assignments
of disputed work shall be made in accordance with any agreement ofrecord between the disputing trades, or any published
decision of record compiled and published by the Building and Construction Trades Department, AFL-CIO in
Agreements and Decisions Rendered af Tecting the Building Industry.
ARTICLE 4. DILIGENT PERFORMANCE-
(a) Subcontractor agrees to commence, pursue diligently and complete the work in such sequence and order and
according to such schedules as Contractor shall establish from time to time during the course of the work, and shall
perform the work so as not to delay any other trades or contractors, time being of the essence of this Subcontract. Any
written dates fumished by the Subcontractor and approved by Contractor and Owner for delivery of materials, samples,
shop drawings, etc., shall become a part of this Subcontract. Subcontractor shall furnish information requested by the
Contractor in connection with monitoring and updating the Project schedule and shall immediately notify Contractor in
writing of any interruption of the work or late delivery which causes or may cause a delay in Subcontractor's performance.
No extension of completion date shall be permitted unless approved in writing by the Contractor and Owner, and
Subcontractor shall be responsible for any losses or penalties incurred by Contractor as a result of delays in completing
Subcontractor's work. If Contractor determines that the Subcontractor is behind schedule or will not be able to maintain
the schedule, Subcontractor shall submit a remedial plan to recover, shall work overtime, shift work, or work in an altered
sequence, if deemed necessary, in the judgment of the Contractor to maintain the progress of the work. Any such
overtime, acceleration, shift or altered sequence work required to maintain progress or to complete the work on a timely
basis shall be at Subcontractor's expense and shall not entitle Subcontractor to an extension of time or additional
compensation. Contractor may supplement Subcontractor's forces, at Subcontractor's expense, if deemed necessary by
the Contractor to maintain the Project schedule. Subcontractor shall be liable to the Contractor for any delay or damages,
including consequential or liquidated damages, threatened or assessed against the Contractor to the extent caused by the
Subcontractor.
(b) To the fullest extent permitted by applicable law, Contractor shall have the right at any time to delay or suspend
the work or any part thereof without incurring liability therefore. An extension of time shall be the sole and exclusive
remedy of Subcontractor for any delays or suspensions suffered by Subcontractor, but only to the extent that a time
extension is obtained from the Owner, and Subcontractor shall have no right to seek or recover from Contractor any
damages or losses, whether direct or indirect, arising from or related to any delay or acceleration to overcome delay,
and/or any impact or effect of such delays on the Work.
(c) Subcontractor shall cooperate fully with Contractor in providing promptly any information requested by
Contractor in connection with preparation of schedules for the Project, including, but not limited to, detailed information
concerning the sequence, beginning and ending dates of activities, cost breakdowns related to such activities, and any
information requested for Critical Path Method scheduling if used for the Project. The costs of all such activities on the
part of Subcontractor are included in the Subcontract Amount.
(d) In the event of any dispute under this Subcontract or as to the work to be performed, Subcontractor shall
continue to diligently perform the work as directed by Contractor without interruption, deficiency or delay.
ARTICLE 5. PAYMENT-
(a) Payment of amounts due under the Subcontract, shall be made as follows: The Contractor shall, pay to the
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Subcontractor an amount equal to ninety percent (90%) or such higher percentage as required by applicable law of the
value of the work performed by the Subcontractor as determined by the Architect and approved by the Contractor during
any calendar month within fifteen (15) days after payment therefor has been received by the Contractor from the Owner,
or within such shorter period specified by applicable law, statute or regulation. The Contractor shall be under no
obligation to make any payment to the Subcontractor except to the extent that the Contractor has received funds from the
Owner for the work invoiced by the Subcontractor; that is to say, the Subcontractor shall not be entitled to payment if for
any reason, the Owner fails to pay the Contractor in accordance with the General Contract, such payment from the Owner
being a condition precedent to any obligation of Contractor to Subcontractor. Retainage and any other balance of the
Subcontract Amount shall be payable fifteen (15) days or within such shorter period specified by applicable law, after
the work under this Subcontract has been completed and accepted by the Owner, Architect, and Contractor and following
approval by the Architect of the final application for payment, and settlement of all claims, if any, under this Agreement,
provided that Subcontractor has fully performed all of its obligations hereunder. The Contractor is hereby authorized to
deduct and offset from any payment an amount equal to any and all sums or obligations owing by the Subcontractor to
the Contractor and costs necessary to complete the work to be performed under this Subcontract, and any and all claims
liquidated or unliquidated, by the Contractor against the Subcontractor, arising hereunder, under any other contract or
agreement between the Subcontractor and the Contractor or from any other liability or obligation of the Subcontractor to
the Contractor whether under this Subcontract or otherwise.
(b) The Subcontractor agrees to submit to the Contractor applications for payment by the 15th of each month, or
at such other time as provided in the Contract Documents so as to enable the Contractor to timely apply to the Owner for
payment. As a condition precedent to the payment of any application, the Subcontractor shall (1) produce waivers of
mechanics lien rights and claim releases in the form required by Contractor by Subcontractor and all persons supplying
labor or materials to the Subcontractor on the Project through the period covered by the application, or (2) exhibit such
other evidence as the Contractor may require that charges for all labor and material have been paid. Any payments made
by Contractor to Subcontractor are to be held in trust by Subcontractor for the payment of any lower tier Subcontractor
or supplier. The Contractor shall have the right to contact Subcontractor's suppliers and subcontractors of any tier, direct
or indirect, to determine the current status of indebtedness and Subcontractor authorizes them to provide such
information. Contractor in its discretion may make checks payable jointly to Subcontractor and the supplier or
subcontractor or directly to the supplier or subcontractor for the account of the Subcontractor.
(c) Payment by the Contractor to the Subcontractor or for its account shall not be deemed to be an admission or
approval by the Contractor of the sufficiency of the work covered by the payment.
(d) Notwithstanding any other provisions of this Agreement, Contractor shall be under no obligation to make any
payment to the Subcontractor under any provision hereof except to the extent that Contractor has received funds from
Owner, payment by Owner being a condition precedent to payment of the Subcontractor. Notwithstanding the foregoing,
nothing in this Subcontract shall be construed to prohibit Subcontractor from pursuing its rights, if any, to a mechanic's
lien or statutory bond claim in the event that non-payment of the Subcontractor was caused by the failure of the Owner
to pay Contractor amounts legally due. Subcontractor further agrees that, prior to exercising its rights or filing claims, if
any, against the Contractor or any smety for non-payment caused by the failure of the Owner to pay Contractor amounts
legally due, Subcontractor shall first timely exercise and exhaust any rights and remedies that may exist with respect to
enforcing a mechanic's lien on the Project.
(e) Contractor may apply any payments otherwise due Subcontractor hereunder to any other indebtedness, liability
or obligation of Subcontractor to Contractor whether under this Subcontract or any other agreement or circumstance.
ARTICLE 6. ADDITIONAL OR OMITTED WORK--
(a) In the event that the Contractor directs Subcontractor to perform additional work, Subcontractor agrees that it
will promptly perform and diligently complete such work whether or not Contractor and Subcontractor have agreed on
the cost of such work. Subcontractor shall submit to Contractor a lump sum proposal for such work, which proposal shall
include a detailed cost breakdown for each component of the work, indicating both quantities and unit prices, and such
proposal shall be submitted to Contractor not later than 7 days after Contractor directs Subcontractor to perform extra or
additional work or such lesser period if required by the Contract between Owner and Contractor. If a lump sum price or
unit price for the additional work cannot be agreed upon, or Subcontractor fails to submit such proposal within 7 days
after Contractor directs Subcontractor to perform extra or additional work, Subcontractor agrees to do the work on the
basis of its actual cost plus percentage fees for overhead and profit as set forth in Article 10. The Contractor shall not be
liable for payment for any additional work performed by the Subcontractor unless such work is first expressly authorized
by the Contractor in writing and payment is made by the Owner to the Contractor for such extra work, payment by Owner
to Contractor being a condition precedent for Contractor to pay Subcontractor for such work. Both authorization in
writing by the Contractor and actual payment by the Owner to the Contractor for such extra work shall be conditions
precedent to Contractor's obligation to pay Subcontractor for such additional work. Any additional compensation or time
to be given to Subcontractor shall be set forth in a Subcontract supplement and shall constitute a full and final equitable
adjustment of compensation, time or any other alleged entitlement, known or unknown, arising in connection with the
facts and circumstances described in and which gave rise to such contract supplement and Subcontractor waives all
damages, direct, indirect and consequential, relating to such facts and circumstances, including, but not limited to, impact,
reduced productivity, interference by other trades, lack of coordination of the work by Contractor, inefficiencies,
acceleration, delays, extended overhead, diminished bonding capacity or lost profits.
(b) In the event that the Subcontractor performs any such authorized additional work on an actual cost plus basis,
it shall furnish each day to the representative of the Contractor, duplicate payroll sheets, timesheets, material tickets,
equipment charges, and a statement or slips for all other charges, retaining a copy of each thereof, and securing on each
thereof the signature of the duly accredited representative of the Contractor. Such signed copies of payroll sheets,
timesheets, material tickets, statements and slips shall accompany the application for payment.
(c) Should the Contractor during the execution of this Contract require the Subcontractor to omit any work
embraced within the terms of this Subcontract, said omission being for the account of the Owner, the Contractor, or any
other subcontractor on the work, the Subcontractor agrees to omit such work, and the Contractor will deduct from any
monies due the Subcontractor the value of such omitted work as reasonably determined by Contractor.
(d) In the event of any dispute, controversy, or claim for additional compensation or time extensions, except for
payment for extra or additional work expressly directed by Contractor in accordance with Section 6 (a) of this
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Subcontract, the compensation for which shall be fully and finally governed by Section 6 (a) of this Subcontract and for
which no further claim can or shall be made, notice in writing shall be given to the Contractor no later than seven (7)
days following the occurrence on which such claim is based, unless the notice provision in the General Contract between
the Owner and Contractor is less than seven (7) days, in which case, Subcontractor shall give notice to Contractor within
2 days less than the time required for Contractor to give notice to the Owner according to the notice-provision in the
General Contract. Such notice shall describe the dispute, controversy or claim in detail so as to allow Contractor to
review its merits. Such notice shall also provide detailed information to substantiate such claim including supporting
documentation and calculations, and including any information requested by Contractor. Any claim not presented within
such time period shall be deemed waived by Subcontractor.
(e) If the Subcontractor shall make any claim against the Contractor for extra work or additional compensation for
which the Owner or its agents may be liable, the Contractor may present such claim or claims to the Architect and/or
Owner for determination and decision provided (1) such claim is not, in the judgment of the Contractor, made in bad
faith, (2) Subcontractor has given notice in accordance with Article 6 (d) and in the form required by the General Contract,
and has presented the claim to Contractor within the time required by Article 6 (d), (3) Subcontractor has both requested
in writing that Contractor present the claim and has agreed in writing, on terms satisfactory to Contractor, to pay all costs
of Contractor in presenting and pursuing such claim. Further, if Contractor requires that Subcontractor execute a
liquidating agreement or similar agreement on terms satisfactory to Contractor further memorializing the understanding
of the parties in connection with the presentation of such claims, Subcontractor shall execute such agreement as a
precondition for Contractor to submit such claim. Presentation of the claim by Contractor shall not be construed as an
acknowledgment of the validity thereof, or a waiver of any right of the Contractor, and such action shall be without
prejudice to its rights. If the claim is presented by the Contractor to the_Architect and the Owner, the decision of the
Architect and/or Owner shall be final and binding upon the Subcontractor to the same extent and purpose that it is final
and binding on the Contractor.
(f) No additional time or compensation will be allowed for weather delays or difliculties or inconveniences arising
from mud, dust, water, ice, snow, wind, heat or cold or similar natural or physical conditions unless permitted under the
General Contract and a claim therefore is made as set forth in Section 6(e). Contractor assumes no responsibility for
material received, unloaded or stored for or by Subcontractor. Materials, tools, supplies, equipment, etc., belonging to or
leased to Subcontractor are its responsibility and no claim for missing or stolen property will be allowed. Contractor shall
not be required to provide hoisting facilities or temporary power, water or heat unless otherwise provided herein.
(g) Contractor may direct Subcontractor to work overtime or premium time and Subcontractor shall comply with
such direction. If approved in advance in writing by Contractor's authorized representative, Subcontractor may be
reimbursed for such work but only for the dif Terence between regular time and overtime for direct payroll cost and the
related payroll taxes, insurance, and benefits, and shall not be entitled to any additional compensation for overhead or
profit or for inefficiencies or declines in productivity or other impacts. Subcontractor shall be responsible for the costs_of
overtime work caused by failure of Subcontractor to provide sufficient manpower maintain the progress of the Work, or
otherwise meet its obligations hereunder.
ARTICLE 7. DEFAULT-
(a) In the event the Subcontractor shall, in the judgment of the Contractor, (1) become unable to fulfill its_financial
obligation, become insolvent, or file or have filed against it any petition in bankruptcy, make an assignment for the benefit
of creditors, or commence or have commenced against it or enter into any other proceeding or arrangement for relief of
debtors, reorganization or deferral or discharge of debts, (2) fail to pay, when due, for materials, supplies, labor, taxes,
or other items purchased or used in connection with the work, (3) fail to pursue the work in accordance with this
Subcontract and the schedules established by the Contractor, (4) fail to supply a sufliciency of properly skilled
supervisors, workmen, or of materials, tools, equipment, or supplies of the proper quality (including failure occasioned
by a strike, picketing, boycott, or other cessation of work by Subcontractor's employees), (5) interfere with or disrupt, or
threaten to interfere with or disrupt the operations of the Contractor, the Owner, or any other laborer, materialmen,
supplier, subcontractor, or other person working on the job, whether by reason of any labor dispute, picketing, boycotting,
or by any other reason, (6) violate any applicable federal, state, or local laws or regulations, (7) advise Contractor or
demonstrate to Contractor that Subcontractor will be unable to timely and adequately perform any of its obligations
under this Subcontract, or (8) commit any other breach of this Subcontract, then any such event shall immediately with
no further action or notice required on the part of the Contractor, constitute a default by the Subcontractor under this
Subcontract, and any such event shall be deemed to be a breach of this Subcontract. The Contractor will give the
Subcontractor written notice of default. Upon receipt of such notice, Subcontractor shall have two (2) days in which to
cure any such default provided, however, that if, in the judgment of the Contractor, such default cannot be cured within
a two (2) day period after such notice, or Subcontractor has advised Contractor or Contactor has otherwise determined
that Subcontractor is unable to cure or remedy said default, the Contractor will notify the Subcontractor of default but
the Subcontractor will not have any right to cue such default_and the Subcontractor may be terminated immediately. In
the event of a default for which there is no right to cure as provided hereinabove, or in the event of the expiration of the
2-day cure period set forth hereinabove without all such defaults having been fully cured, the Contractor may terminate
this Subcontract, take possession of all or any materials, fabricated items wherever located, supplies, equipment and
tools pertaining to the Project whether on the Project site, in the Subcontractor's premises or in transit, and may make
independent arrangements for completion of the work._Subcontractor grants to Contractor a right of entry into any
premises owned or leased by Subcontractor for the_foregoing purposes. The amount of completion cost, as well as any
other costs, damages, or expenses, including Contractor's legal fees and expense, incurred as a result of such default shall
be charged against any unpaid balance due to the Subcontractor under this Agreement or under any other agreement
between Contractor and Subcontractor; and, if said total costs, damages or expenses shall exceed the balance due, the
Subcontractor agrees to pay the amount of said excess immediately upon demand of the Contractor. The materials,
supplies, equipment and tools taken by the Contractor may be used in completing the Project and may be incorporated
into the improvements being constructed. With respect to any of such items incorporated into the Project, or consumed
in the job, the net reasonable value of the same as of the date of taking shall be taken into account in the calculation of
the aforesaid total completion costs, damages, and expenses. With respect to any such items which are not so incorporated
or consumed, or which have a salvage value, the Contractor may, at its option (1) assume title to the same or any part of
the same, as of the date of default and take into account the net reasonable value thereof as of the date of taking in the
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calculation of the total completion cost, damages, and expenses or (2) return the same to Subcontractor and take into
account the net reasonable value of the use thereof by Contractor in the calculation of the said total completion cost,
damages, and expenses
(b) In addition to, and not in substitution of, the remedies herein above specified, Contractor may immediately, in
the event of default or failure of Subcontractor to perform its obligations hereunder, provide or arrange for such workmen
and materials necessary to continue and complete the work contracted for hereunder for the account of the Subcontractor
and at Subcontractor's cost and expense, and apply any and all funds due or to become due to the Subcontractor thereto,
all without terminating, rescinding or voiding this Subcontract or releasing the Subcontractor from any liability hereunder
or from any damages caused by Subcontractor's failure to perform.
(c) In the event of a default by the Subcontractor under this Subcontract, all sums and obligations owing to the
Contractor by the Subcontractor in any right or capacity, whether under this Subcontract or otherwise, immediately shall
become due and payable to the Contractor.
(d) In the event the Contractor does not terminate this Subcontract, but assents to delayed completion of the work
by the Subcontractor, such assent shall not be construed as a waiver of the Subcontractor's obligation to reimburse the
Contractor for any costs, damages, or expenses incurred as a result of such delay; and all such costs, damages, and
expenses shall be paid or reimbursed to Contractor upon demand.
(e) In the event that Contractor wrongfully exercises any of its rights under this Article 7, Subcontractor's sole and
exclusive remedy shall be payment of the Subcontract Amount for the portion of the Subcontract performed by
Subcontractor, and Subcontractor hereby waives any and all other rights, claims and remedies under this Subcontract
and/or at law.
ARTICLE 8. RELEASES OF CLAIMS AND WAIVER OF LIENS-
Subcontractor agrees to provide to Contractor, and to provide and obtain from its subcontractors and suppliers of all tiers,
executed releases of claims and/or waivers of liens and lien rights in the form required by Contractor and at such times
as may be requested by Contractor. Subcontractor shall hold all monies paid by Contractor in trust for the payment of
lower tier subcontractors and suppliers, promptly apply all payments made hereunder to Subcontractor's cost for labor
and materials for the Project, and shall further take any and all necessary actions to keep the Project free and clear of all
claims for liens and any and all claims against Contractor or Owner or any bonds posted by either of them in connection
with the Project. In the event that any person furnishing labor or materials to the Subcontractor files a notice of intent to
place a lien on the Project or files a lien on the Project or files a notice of claim or makes a claim against the Contractor
or Owner or any bonds posted by either of them in connection with the Project, Subcontractor shall promptly but in no
event later than any time required for a release bond to be posted under the General Contract take all necessary steps to
have such notice or lien or claim withdrawn, including, if requested by Contractor, the posting of a bond. In the event
that Subcontractor does not fulfill its obligations under this Article 8, Contractor may take all actions which it deems
reasonable or necessary to protect the Project from liens and claims and the costs of any such actions including the cost
of posting a release bond and attorney's fees, shall be deducted from amounts payable by Contractor to Subcontractor
under this Agreement or any other agreement or circumstance. Subcontractor shall remain liable in the event that monies
payable to it are insufficient to pay any damages or expenses arising from such liens.
ARTICLE 9. MISCELLANEOUS--
(a) The Subcontractor shall not sublet, assign or transfer this Subcontract or any part thereof, or the money due or
to become due under it, without the written consent of Contractor; and any assignment or transfer without such consent
shall be void. Subcontractor hereby assigns to Contractor, upon termination of this Subcontract for any reason prior to
its complete performance, all of subcontractor's rights in and to any agreements or purchase orders for labor or materials,
equipment or services related to the Project, as well as any shop drawings, plans, specifications, or other documents
prepared by or on behalf of the Subcontractor and such assignment shall create no rights in any other person unless
accepted by Contractor. Contractor may assign this Subcontract, including but not limited to the Owner, the Owner's
lender, or other entities as required by the Owner, to another contractor upon termination of the General Contract, or to
any other persons or entities as required by the General Contract.
(b) The Subcontractor shall not cause any unnecessary interference with or delay to the Contractor or to other
subcontractors on said Project and shall repair promptly and be responsible for all damage done to the work of the
Contractor or other subcontractors by Subcontractor, its agents, employees, subcontractors, or suppliers. Subcontractor
shall be directly responsible to the Contractor or other subcontractors whose work is so damaged. The Contractor shall
be responsible to the Subcontractor for physical damage to Subcontractor's work only if such damage is directly and
proximately caused by the sole negligence of the Contractor.
(c) The Subcontractor shall clean up and remove daily from the job site dirt, trash and debris arising from its work
as directed by the Contractor. In the event the Subcontractor fails to clean up and remove such dirt, trash and debris, the
Contractor may, at its discretion, arrange for the same at Subcontractor's expense.
(d) The Subcontractor hereby assumes entire responsibility and liability for any and all damage or injury of any kind
or nature whatever (including death resulting therefrom) to all persons, whether employees of any tier of the
Subcontractor or otherwise and to all property caused by, resulting from, arising out of or occurring in connection with
the execution of the Work, or in preparation for the Work, or any extension, modiñcation or amendment to the Work by
change order or otherwise. Except to the extent, if any, expressly prohibited by statute and excluding from this indemnity
such acts or omissions, if any, of the party indemniñed for which it is not legally entitled to be indemnified by the
Subcontractor under applicable law, should any claims for such damage or injury (including death resulting therefrom)
be made or asserted, whether or not such claims are based upon Whiting-Turner's or the Owner's alleged active or passive
negligence or participation in the wrong or upon any alleged breach of any statutory duty or obligation on the part of
Whiting-Turner or the Owner, the Subcontractor agrees to indemnify and save harmless Whiting-Turner and the Owner,
their officers, agents, servants and employees from and against any and all such claims and further from and against any
and all loss, cost, expense, liability, damage, penalties, fines or injury, including legal fees and disbursements, that
Whiting-Turner and the Owner, their officers, agents, servants and employees, upon demand, the amount of any judgment
that may be entered against Whiting-Turner and/or the Owner, their oflicers, agents, servants and employees in any such
action. In the event that any such claims, loss, cost, expense, liability, damage, penalties, fines or injury arise or are made,
asserted or threatened against Whiting-Turner and/or the Owner, their officers, agents, servants or employees, Whiting-
SC-NY5
Rev. 1/2/15 Document Generated from CMiC
FILED: WESTCHESTER COUNTY CLERK 01/18/2024 08:43 AM INDEX NO. 55548/2023
DocuSign Envelope ID: 4C1A753F-6E6A-4EC4-AC52-3BA5087FC582
NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/18/2024
Turner shall have the right to withhold from any payments due or to become due to the Subcontractor an amount sufEcient
in its judgment to protect and indemnify Whiting-Turner and the Owner, their officers, agents, servants and employees
from and against any and all such claims, loss, expense, liability, damage, penalties, fines or injury, including legal fees
and disbursements, or Whiting-Turner in its discretion may require the Subcontractor to furnish a surety bond satisfactory
to Whiting-Turner guaranteeing such protection, which bond shall be furnished by the Subcontractor within five (5) days
aner written demand has been made therefore.
(e) Subcontractor acknowledges that, before executing this Agreement, it has carefully examined this Agreement,
the Contract Documents and the Project site, has made such investigation of the Work required to be done and the material
required to be furnished and, based upon such examination and investigation, Subcontractor represents that it fully
understands and can perform all requirements of the Contract Documents.
(f) With regard to the subject matter of this Subcontract: (1) Subcontractor shall have no greater rights and/or
remedies against Contractor with respect to any matter (including, but not limited to, omissions, alterations, extra work
and additional compensation) than Contractor has against Owner pursuant to the Contract Documents; (2) Subcontractor
assumes all obligations, duties and responsibilities by which Contractor is bound to Owner pursuant to the Contract
Documents; (3) Subcontractor shall be bound to Contractor to the same extent that Contractor is bound to Owner by all
of the terms, provisions and conditions set forth in the Contract Documents; and (4) Owner shall have all rights and
remedies against Subcontractor that Owner has against Contractor pursuant to the Contract Documents.
(g) The Contractor shall have the right at any time, and for any or no reason, including for convenience, to terminate
this Subcontract and require the Subcontractor to cease work thereon. The Subcontractor, in such event, shall be entitled
to further payment only as provided in Article 5. The Subcontractor agrees to be bound by any and all provisions in the
General Contract respecting renegotiation as well as termination for any reason.
(h) Subcontractor agrees to clearly note on each payment check to, and related invoice of, its subcontractors and
material suppliers which exceed One Thousand Dollars ($1,000.00), as being for work or materials provided pursuant to
this Agreement for this Project, by name, all to be subject to Contractor's inspection upon request. Subcontractor also
agrees to submit promptly to Contractor, upon request, the name, address and telephone number of each subcontractor or
supplier of any tier, to Subcontractor for labor, materials, or equipment used on this Project. Contractor may contact any
such subcontractors and suppliers and Subcontractor authorizes them to provide Contractor with any requested
information
(i) The Subcontractor warrants its workmanship and materials furnished against any defects, faults or damages
arising therefrom during the period of construction and for a period of one year from the date of final completion of the
Project (or for such longer period of time as may be required herein or by the Contract Documents). The Subcontractor
shall remedy such defective workmanship, material, or damages at the request of the Contractor, at times convenient to
the Owner, and to the satisfaction of Owner, Architect and Contractor.
(j) Subcontractor shall comply with all applicable federal, state, and local laws and regulations by which it is bound
and shall perform this Subcontract in strict conformity with applicable laws, codes, ordinances, rules, regulations and
requirements of Federal, State, County and Municipal authorities and of the National Board of Fire Underwriters and any
local fire Underwriters and any local fire insurance exchange now or hereafter in effect. In the event of any discrepancy
between the present requirements of such laws or authorities and the provisions of this Subcontract, the former shall
govern, and the Subcontractor shall perform the work as required thereby at no extra cost. Should the Subcontractor incur
additional costs because of any future change in such requirements, additional compensation therefor shall be subject to
Articles 5 and 6 hereof. If the Subcontractor performs any work or is otherwise in violation of any such laws, codes,
ordinances, rules, regulations or requirements, it shall bear all costs arising or resulting therefrom. Where applicable, this
contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These
regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals
with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual
orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and
subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color,
religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.
(k) Subcontractor shall be represented on the job site during the course of its work by qualified, full-time supervisors
acceptable to Contractor. The Contractor shall have the right to require at any or all progress meetings, whether called
by the Owner, the Contractor, or others, the presence of a representati
Preview
FILED: WESTCHESTER COUNTY CLERK 01/18/2024 08:43 AM INDEX NO. 55548/2023 DocuSign Envelope ID: 4C1A753F-6E6A-4EC4-AC52-3BA5087FC582 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/18/2024 SUBCONTRACT THE WHITING-TURNER CONTRACTING COMPANY Address Reply to: THE WHITING-TURNER CONTRACTING COMPANY 707 Westchester Ave Suite 101 White Plains, NY 10604 SUBCONTRACT NO. 016587.VIL.09F SUBCONTRACT FOR Prefabricated Panels & MEPs SUBCONTRACTOR Blueprint Partners Corp. Address 1500 Broening Highway Suite 100 Baltimore, MD 21224 Remittance Address 1500 Broening Highway Suite 100 Baltimore, MD 21224 OWNER Purchase Senior Learning Community, Inc., as Assignee 735 Anderson Hill Road Purchase, NY 10577 PROJECT Broadview Senior Living Community 735 Anderson Hill Road Purchase, NY 10577 This agreement, made this 106 day of November, 2021, by and between Blueprint Partners Corp. hereinafter called the Subcontractor, and THE WHITING-TURNER CONTRACTING COMPANY, of Baltimore Maryland, with its principal office located at 300 East Joppa Road, Baltimore, Maryland, a body corporate of the State of Maryland, hereinafter called the Contractor, WITNESSETH, that the Subcontractor and Contractor for the consideration hereinafter named, agree as follows: ARTICLE 1. DEFINITIONS- (a) As used herein, the following terms shall have the meanings indicated: "Architect" or "Engineer" means the architect or engineer directing the work as agent of the Owner, or any other person authorized by the General Contract to direct or pass upon any matter or thing connected with the performance of the General Contract. "Contract Documents" means (a) the General Contract, (b) all general, supplementary and other conditions applicable to the Project, (c) the Drawings and Specifications, and (d) all bulletins and addenda issued in connection with the Project. "Drawings and Specifications" means the drawings and specifications described in Article 2 hereof, and all addenda and/or revisions thereto. "General Contract" means the contract executed or to be executed by the Owner and the Contractor in connection with the construction of the Project and any amendments thereto. Where the contract entered into between Owner and Contractor is a Construction Management Agreement, the "Contractor" term shall be deemed to mean "Construction Manager". "Subcontract" means this document and all of the Contract Documents which shall be made a part of this Subcontract and are incorporated herein by reference. "Contractor" is used in the (b) Where the term Specifications, insofar as it has application to the work required to be done by the Subcontractor as provided herein, it shall be deemed for the purposes hereof to refer to the Subcontractor. The term "Contractor" or "General Contractor" when used in the Contract Documents shall be deemed to make reference to the Subcontractor insofar as it has application to the work covered by this Subcontract. The term "Subcontractor" "it" whether Subcontractor is incorporated or not. may be referred to as SC-NY1 Rev. 1/2/15 Document Generated from CMiC FILED: WESTCHESTER COUNTY CLERK 01/18/2024 08:43 AM INDEX NO. 55548/2023 DocuSign Envelope ID: 4C1A753F-6E6A-4EC4-AC52-3BA5087FC582 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/18/2024 ARTICLE 2. SCOPE OF WORK--The work to be performed and materials to be furnished by the Subcontractor are as specified in Article 3 hereof and in accordance with Drawings and Specifications prepared by HCM Design, Inc. and Divney, Tung, Schwalbe, LLP dated *See Exhibit G - Contract Document Log, and as set forth in Exhibit B. ARTICLE 3. PROVISION OF LABOR AND MATERIALS- (a) The Subcontractor agrees to furnish and pay for all labor and supervision, tools, apparatus, supplies, equipment, and services, and also to furnish, deliver, install, and pay for all materials necessary for the performance and completion of the work described under the Scope of Work, free from all claims and liens of materialmen, suppliers, laborers, truckers, subcontractors, and others making claims through the Subcontractor. All such work shall be done to the satisfaction of the Owner, the Architect and/or Engineer, and the Contractor in accordance with the Contract Documents. Subcontractor agrees to submit daily work reports and monthly progress reports and schedule updates upon request by the Contractor. The Subcontractor agrees that with respect to the Scope of Work hereunder it will stand in the Contractor's shoes with respect to the Contractor's obligations to the Owner under the Contract Documents and will perform all work and obligations as set forth on the Contract Documents to the satisfaction of the Owner. At all times that Subcontractor has personnel at the Project site, it shall also have present an authorized representative of Subcontractor who shall supervise and direct Subcontractor's personnel and be responsible for their actions. Such representative shall be authorized to act on behalf of the Subcontractor and communications to such representative shall be binding upon Subcontractor. (b) In the event any deviations from the Contract Documents are incorporated in any shop drawings of or by the Subcontractor, such deviations and the reasons therefore shall be fully explained in writing by separate letter to the Contractor and Owner at the time the shop drawings are submitted to the Contractor and Owner. Failure to so specify and explain any such deviation will automatically void any inadvertent approval of the same by the Contractor, Architect, Engineer and/or Owner. (c) The Subcontractor represents and warrants that it is an expert in the particular line or lines of work herein contracted to be done and that it is competent to know whether the materials, methods and apparatus specified for this work are sufficient and suitable to secure the results contemplated by the Contract Documents. The Subcontractor shal_1 be responsible for fulfilling the requirements of the Contract Documents. Subcontractor agrees to cooperate in carrying out Contractor's quality assurance program including, but not limited to, furnishing necessary documentation and facilitating inspections and quality checks. (d) In the event that Subcontractor employs union labor the Subcontractor agrees to be bound by the terms and provisions of the agreement establishing the Impartial Jurisdictional Disputes Board, any such successor Board, or any subsequent method agreed to be employers and the unions affiliated with the Building and Construction Trades Department, AFL-CIO, for the settlement of jurisdictional disputes. The Subcontractor also agrees that any assignments of disputed work shall be made in accordance with any agreement ofrecord between the disputing trades, or any published decision of record compiled and published by the Building and Construction Trades Department, AFL-CIO in Agreements and Decisions Rendered af Tecting the Building Industry. ARTICLE 4. DILIGENT PERFORMANCE- (a) Subcontractor agrees to commence, pursue diligently and complete the work in such sequence and order and according to such schedules as Contractor shall establish from time to time during the course of the work, and shall perform the work so as not to delay any other trades or contractors, time being of the essence of this Subcontract. Any written dates fumished by the Subcontractor and approved by Contractor and Owner for delivery of materials, samples, shop drawings, etc., shall become a part of this Subcontract. Subcontractor shall furnish information requested by the Contractor in connection with monitoring and updating the Project schedule and shall immediately notify Contractor in writing of any interruption of the work or late delivery which causes or may cause a delay in Subcontractor's performance. No extension of completion date shall be permitted unless approved in writing by the Contractor and Owner, and Subcontractor shall be responsible for any losses or penalties incurred by Contractor as a result of delays in completing Subcontractor's work. If Contractor determines that the Subcontractor is behind schedule or will not be able to maintain the schedule, Subcontractor shall submit a remedial plan to recover, shall work overtime, shift work, or work in an altered sequence, if deemed necessary, in the judgment of the Contractor to maintain the progress of the work. Any such overtime, acceleration, shift or altered sequence work required to maintain progress or to complete the work on a timely basis shall be at Subcontractor's expense and shall not entitle Subcontractor to an extension of time or additional compensation. Contractor may supplement Subcontractor's forces, at Subcontractor's expense, if deemed necessary by the Contractor to maintain the Project schedule. Subcontractor shall be liable to the Contractor for any delay or damages, including consequential or liquidated damages, threatened or assessed against the Contractor to the extent caused by the Subcontractor. (b) To the fullest extent permitted by applicable law, Contractor shall have the right at any time to delay or suspend the work or any part thereof without incurring liability therefore. An extension of time shall be the sole and exclusive remedy of Subcontractor for any delays or suspensions suffered by Subcontractor, but only to the extent that a time extension is obtained from the Owner, and Subcontractor shall have no right to seek or recover from Contractor any damages or losses, whether direct or indirect, arising from or related to any delay or acceleration to overcome delay, and/or any impact or effect of such delays on the Work. (c) Subcontractor shall cooperate fully with Contractor in providing promptly any information requested by Contractor in connection with preparation of schedules for the Project, including, but not limited to, detailed information concerning the sequence, beginning and ending dates of activities, cost breakdowns related to such activities, and any information requested for Critical Path Method scheduling if used for the Project. The costs of all such activities on the part of Subcontractor are included in the Subcontract Amount. (d) In the event of any dispute under this Subcontract or as to the work to be performed, Subcontractor shall continue to diligently perform the work as directed by Contractor without interruption, deficiency or delay. ARTICLE 5. PAYMENT- (a) Payment of amounts due under the Subcontract, shall be made as follows: The Contractor shall, pay to the SC-NY2 Rev. 1/2/15 Document Generated from CMiC FILED: WESTCHESTER COUNTY CLERK 01/18/2024 08:43 AM INDEX NO. 55548/2023 DocuSign Envelope ID: 4C1A753F-6E6A-4EC4-AC52-3BA5087FC582 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/18/2024 Subcontractor an amount equal to ninety percent (90%) or such higher percentage as required by applicable law of the value of the work performed by the Subcontractor as determined by the Architect and approved by the Contractor during any calendar month within fifteen (15) days after payment therefor has been received by the Contractor from the Owner, or within such shorter period specified by applicable law, statute or regulation. The Contractor shall be under no obligation to make any payment to the Subcontractor except to the extent that the Contractor has received funds from the Owner for the work invoiced by the Subcontractor; that is to say, the Subcontractor shall not be entitled to payment if for any reason, the Owner fails to pay the Contractor in accordance with the General Contract, such payment from the Owner being a condition precedent to any obligation of Contractor to Subcontractor. Retainage and any other balance of the Subcontract Amount shall be payable fifteen (15) days or within such shorter period specified by applicable law, after the work under this Subcontract has been completed and accepted by the Owner, Architect, and Contractor and following approval by the Architect of the final application for payment, and settlement of all claims, if any, under this Agreement, provided that Subcontractor has fully performed all of its obligations hereunder. The Contractor is hereby authorized to deduct and offset from any payment an amount equal to any and all sums or obligations owing by the Subcontractor to the Contractor and costs necessary to complete the work to be performed under this Subcontract, and any and all claims liquidated or unliquidated, by the Contractor against the Subcontractor, arising hereunder, under any other contract or agreement between the Subcontractor and the Contractor or from any other liability or obligation of the Subcontractor to the Contractor whether under this Subcontract or otherwise. (b) The Subcontractor agrees to submit to the Contractor applications for payment by the 15th of each month, or at such other time as provided in the Contract Documents so as to enable the Contractor to timely apply to the Owner for payment. As a condition precedent to the payment of any application, the Subcontractor shall (1) produce waivers of mechanics lien rights and claim releases in the form required by Contractor by Subcontractor and all persons supplying labor or materials to the Subcontractor on the Project through the period covered by the application, or (2) exhibit such other evidence as the Contractor may require that charges for all labor and material have been paid. Any payments made by Contractor to Subcontractor are to be held in trust by Subcontractor for the payment of any lower tier Subcontractor or supplier. The Contractor shall have the right to contact Subcontractor's suppliers and subcontractors of any tier, direct or indirect, to determine the current status of indebtedness and Subcontractor authorizes them to provide such information. Contractor in its discretion may make checks payable jointly to Subcontractor and the supplier or subcontractor or directly to the supplier or subcontractor for the account of the Subcontractor. (c) Payment by the Contractor to the Subcontractor or for its account shall not be deemed to be an admission or approval by the Contractor of the sufficiency of the work covered by the payment. (d) Notwithstanding any other provisions of this Agreement, Contractor shall be under no obligation to make any payment to the Subcontractor under any provision hereof except to the extent that Contractor has received funds from Owner, payment by Owner being a condition precedent to payment of the Subcontractor. Notwithstanding the foregoing, nothing in this Subcontract shall be construed to prohibit Subcontractor from pursuing its rights, if any, to a mechanic's lien or statutory bond claim in the event that non-payment of the Subcontractor was caused by the failure of the Owner to pay Contractor amounts legally due. Subcontractor further agrees that, prior to exercising its rights or filing claims, if any, against the Contractor or any smety for non-payment caused by the failure of the Owner to pay Contractor amounts legally due, Subcontractor shall first timely exercise and exhaust any rights and remedies that may exist with respect to enforcing a mechanic's lien on the Project. (e) Contractor may apply any payments otherwise due Subcontractor hereunder to any other indebtedness, liability or obligation of Subcontractor to Contractor whether under this Subcontract or any other agreement or circumstance. ARTICLE 6. ADDITIONAL OR OMITTED WORK-- (a) In the event that the Contractor directs Subcontractor to perform additional work, Subcontractor agrees that it will promptly perform and diligently complete such work whether or not Contractor and Subcontractor have agreed on the cost of such work. Subcontractor shall submit to Contractor a lump sum proposal for such work, which proposal shall include a detailed cost breakdown for each component of the work, indicating both quantities and unit prices, and such proposal shall be submitted to Contractor not later than 7 days after Contractor directs Subcontractor to perform extra or additional work or such lesser period if required by the Contract between Owner and Contractor. If a lump sum price or unit price for the additional work cannot be agreed upon, or Subcontractor fails to submit such proposal within 7 days after Contractor directs Subcontractor to perform extra or additional work, Subcontractor agrees to do the work on the basis of its actual cost plus percentage fees for overhead and profit as set forth in Article 10. The Contractor shall not be liable for payment for any additional work performed by the Subcontractor unless such work is first expressly authorized by the Contractor in writing and payment is made by the Owner to the Contractor for such extra work, payment by Owner to Contractor being a condition precedent for Contractor to pay Subcontractor for such work. Both authorization in writing by the Contractor and actual payment by the Owner to the Contractor for such extra work shall be conditions precedent to Contractor's obligation to pay Subcontractor for such additional work. Any additional compensation or time to be given to Subcontractor shall be set forth in a Subcontract supplement and shall constitute a full and final equitable adjustment of compensation, time or any other alleged entitlement, known or unknown, arising in connection with the facts and circumstances described in and which gave rise to such contract supplement and Subcontractor waives all damages, direct, indirect and consequential, relating to such facts and circumstances, including, but not limited to, impact, reduced productivity, interference by other trades, lack of coordination of the work by Contractor, inefficiencies, acceleration, delays, extended overhead, diminished bonding capacity or lost profits. (b) In the event that the Subcontractor performs any such authorized additional work on an actual cost plus basis, it shall furnish each day to the representative of the Contractor, duplicate payroll sheets, timesheets, material tickets, equipment charges, and a statement or slips for all other charges, retaining a copy of each thereof, and securing on each thereof the signature of the duly accredited representative of the Contractor. Such signed copies of payroll sheets, timesheets, material tickets, statements and slips shall accompany the application for payment. (c) Should the Contractor during the execution of this Contract require the Subcontractor to omit any work embraced within the terms of this Subcontract, said omission being for the account of the Owner, the Contractor, or any other subcontractor on the work, the Subcontractor agrees to omit such work, and the Contractor will deduct from any monies due the Subcontractor the value of such omitted work as reasonably determined by Contractor. (d) In the event of any dispute, controversy, or claim for additional compensation or time extensions, except for payment for extra or additional work expressly directed by Contractor in accordance with Section 6 (a) of this SC-NY3 Rev. 1/2/15 Document Generated from CMiC FILED: WESTCHESTER COUNTY CLERK 01/18/2024 08:43 AM INDEX NO. 55548/2023 DocuSign Envelope ID: 4C1A753F-6E6A-4EC4-AC52-3BA5087FC582 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/18/2024 Subcontract, the compensation for which shall be fully and finally governed by Section 6 (a) of this Subcontract and for which no further claim can or shall be made, notice in writing shall be given to the Contractor no later than seven (7) days following the occurrence on which such claim is based, unless the notice provision in the General Contract between the Owner and Contractor is less than seven (7) days, in which case, Subcontractor shall give notice to Contractor within 2 days less than the time required for Contractor to give notice to the Owner according to the notice-provision in the General Contract. Such notice shall describe the dispute, controversy or claim in detail so as to allow Contractor to review its merits. Such notice shall also provide detailed information to substantiate such claim including supporting documentation and calculations, and including any information requested by Contractor. Any claim not presented within such time period shall be deemed waived by Subcontractor. (e) If the Subcontractor shall make any claim against the Contractor for extra work or additional compensation for which the Owner or its agents may be liable, the Contractor may present such claim or claims to the Architect and/or Owner for determination and decision provided (1) such claim is not, in the judgment of the Contractor, made in bad faith, (2) Subcontractor has given notice in accordance with Article 6 (d) and in the form required by the General Contract, and has presented the claim to Contractor within the time required by Article 6 (d), (3) Subcontractor has both requested in writing that Contractor present the claim and has agreed in writing, on terms satisfactory to Contractor, to pay all costs of Contractor in presenting and pursuing such claim. Further, if Contractor requires that Subcontractor execute a liquidating agreement or similar agreement on terms satisfactory to Contractor further memorializing the understanding of the parties in connection with the presentation of such claims, Subcontractor shall execute such agreement as a precondition for Contractor to submit such claim. Presentation of the claim by Contractor shall not be construed as an acknowledgment of the validity thereof, or a waiver of any right of the Contractor, and such action shall be without prejudice to its rights. If the claim is presented by the Contractor to the_Architect and the Owner, the decision of the Architect and/or Owner shall be final and binding upon the Subcontractor to the same extent and purpose that it is final and binding on the Contractor. (f) No additional time or compensation will be allowed for weather delays or difliculties or inconveniences arising from mud, dust, water, ice, snow, wind, heat or cold or similar natural or physical conditions unless permitted under the General Contract and a claim therefore is made as set forth in Section 6(e). Contractor assumes no responsibility for material received, unloaded or stored for or by Subcontractor. Materials, tools, supplies, equipment, etc., belonging to or leased to Subcontractor are its responsibility and no claim for missing or stolen property will be allowed. Contractor shall not be required to provide hoisting facilities or temporary power, water or heat unless otherwise provided herein. (g) Contractor may direct Subcontractor to work overtime or premium time and Subcontractor shall comply with such direction. If approved in advance in writing by Contractor's authorized representative, Subcontractor may be reimbursed for such work but only for the dif Terence between regular time and overtime for direct payroll cost and the related payroll taxes, insurance, and benefits, and shall not be entitled to any additional compensation for overhead or profit or for inefficiencies or declines in productivity or other impacts. Subcontractor shall be responsible for the costs_of overtime work caused by failure of Subcontractor to provide sufficient manpower maintain the progress of the Work, or otherwise meet its obligations hereunder. ARTICLE 7. DEFAULT- (a) In the event the Subcontractor shall, in the judgment of the Contractor, (1) become unable to fulfill its_financial obligation, become insolvent, or file or have filed against it any petition in bankruptcy, make an assignment for the benefit of creditors, or commence or have commenced against it or enter into any other proceeding or arrangement for relief of debtors, reorganization or deferral or discharge of debts, (2) fail to pay, when due, for materials, supplies, labor, taxes, or other items purchased or used in connection with the work, (3) fail to pursue the work in accordance with this Subcontract and the schedules established by the Contractor, (4) fail to supply a sufliciency of properly skilled supervisors, workmen, or of materials, tools, equipment, or supplies of the proper quality (including failure occasioned by a strike, picketing, boycott, or other cessation of work by Subcontractor's employees), (5) interfere with or disrupt, or threaten to interfere with or disrupt the operations of the Contractor, the Owner, or any other laborer, materialmen, supplier, subcontractor, or other person working on the job, whether by reason of any labor dispute, picketing, boycotting, or by any other reason, (6) violate any applicable federal, state, or local laws or regulations, (7) advise Contractor or demonstrate to Contractor that Subcontractor will be unable to timely and adequately perform any of its obligations under this Subcontract, or (8) commit any other breach of this Subcontract, then any such event shall immediately with no further action or notice required on the part of the Contractor, constitute a default by the Subcontractor under this Subcontract, and any such event shall be deemed to be a breach of this Subcontract. The Contractor will give the Subcontractor written notice of default. Upon receipt of such notice, Subcontractor shall have two (2) days in which to cure any such default provided, however, that if, in the judgment of the Contractor, such default cannot be cured within a two (2) day period after such notice, or Subcontractor has advised Contractor or Contactor has otherwise determined that Subcontractor is unable to cure or remedy said default, the Contractor will notify the Subcontractor of default but the Subcontractor will not have any right to cue such default_and the Subcontractor may be terminated immediately. In the event of a default for which there is no right to cure as provided hereinabove, or in the event of the expiration of the 2-day cure period set forth hereinabove without all such defaults having been fully cured, the Contractor may terminate this Subcontract, take possession of all or any materials, fabricated items wherever located, supplies, equipment and tools pertaining to the Project whether on the Project site, in the Subcontractor's premises or in transit, and may make independent arrangements for completion of the work._Subcontractor grants to Contractor a right of entry into any premises owned or leased by Subcontractor for the_foregoing purposes. The amount of completion cost, as well as any other costs, damages, or expenses, including Contractor's legal fees and expense, incurred as a result of such default shall be charged against any unpaid balance due to the Subcontractor under this Agreement or under any other agreement between Contractor and Subcontractor; and, if said total costs, damages or expenses shall exceed the balance due, the Subcontractor agrees to pay the amount of said excess immediately upon demand of the Contractor. The materials, supplies, equipment and tools taken by the Contractor may be used in completing the Project and may be incorporated into the improvements being constructed. With respect to any of such items incorporated into the Project, or consumed in the job, the net reasonable value of the same as of the date of taking shall be taken into account in the calculation of the aforesaid total completion costs, damages, and expenses. With respect to any such items which are not so incorporated or consumed, or which have a salvage value, the Contractor may, at its option (1) assume title to the same or any part of the same, as of the date of default and take into account the net reasonable value thereof as of the date of taking in the SC-NY4 Rev. 1/2/15 Document Generated from CMiC FILED: WESTCHESTER COUNTY CLERK 01/18/2024 08:43 AM INDEX NO. 55548/2023 DocuSign Envelope ID: 4C1A753F-6E6A-4EC4-AC52-3BA5087FC582 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/18/2024 calculation of the total completion cost, damages, and expenses or (2) return the same to Subcontractor and take into account the net reasonable value of the use thereof by Contractor in the calculation of the said total completion cost, damages, and expenses (b) In addition to, and not in substitution of, the remedies herein above specified, Contractor may immediately, in the event of default or failure of Subcontractor to perform its obligations hereunder, provide or arrange for such workmen and materials necessary to continue and complete the work contracted for hereunder for the account of the Subcontractor and at Subcontractor's cost and expense, and apply any and all funds due or to become due to the Subcontractor thereto, all without terminating, rescinding or voiding this Subcontract or releasing the Subcontractor from any liability hereunder or from any damages caused by Subcontractor's failure to perform. (c) In the event of a default by the Subcontractor under this Subcontract, all sums and obligations owing to the Contractor by the Subcontractor in any right or capacity, whether under this Subcontract or otherwise, immediately shall become due and payable to the Contractor. (d) In the event the Contractor does not terminate this Subcontract, but assents to delayed completion of the work by the Subcontractor, such assent shall not be construed as a waiver of the Subcontractor's obligation to reimburse the Contractor for any costs, damages, or expenses incurred as a result of such delay; and all such costs, damages, and expenses shall be paid or reimbursed to Contractor upon demand. (e) In the event that Contractor wrongfully exercises any of its rights under this Article 7, Subcontractor's sole and exclusive remedy shall be payment of the Subcontract Amount for the portion of the Subcontract performed by Subcontractor, and Subcontractor hereby waives any and all other rights, claims and remedies under this Subcontract and/or at law. ARTICLE 8. RELEASES OF CLAIMS AND WAIVER OF LIENS- Subcontractor agrees to provide to Contractor, and to provide and obtain from its subcontractors and suppliers of all tiers, executed releases of claims and/or waivers of liens and lien rights in the form required by Contractor and at such times as may be requested by Contractor. Subcontractor shall hold all monies paid by Contractor in trust for the payment of lower tier subcontractors and suppliers, promptly apply all payments made hereunder to Subcontractor's cost for labor and materials for the Project, and shall further take any and all necessary actions to keep the Project free and clear of all claims for liens and any and all claims against Contractor or Owner or any bonds posted by either of them in connection with the Project. In the event that any person furnishing labor or materials to the Subcontractor files a notice of intent to place a lien on the Project or files a lien on the Project or files a notice of claim or makes a claim against the Contractor or Owner or any bonds posted by either of them in connection with the Project, Subcontractor shall promptly but in no event later than any time required for a release bond to be posted under the General Contract take all necessary steps to have such notice or lien or claim withdrawn, including, if requested by Contractor, the posting of a bond. In the event that Subcontractor does not fulfill its obligations under this Article 8, Contractor may take all actions which it deems reasonable or necessary to protect the Project from liens and claims and the costs of any such actions including the cost of posting a release bond and attorney's fees, shall be deducted from amounts payable by Contractor to Subcontractor under this Agreement or any other agreement or circumstance. Subcontractor shall remain liable in the event that monies payable to it are insufficient to pay any damages or expenses arising from such liens. ARTICLE 9. MISCELLANEOUS-- (a) The Subcontractor shall not sublet, assign or transfer this Subcontract or any part thereof, or the money due or to become due under it, without the written consent of Contractor; and any assignment or transfer without such consent shall be void. Subcontractor hereby assigns to Contractor, upon termination of this Subcontract for any reason prior to its complete performance, all of subcontractor's rights in and to any agreements or purchase orders for labor or materials, equipment or services related to the Project, as well as any shop drawings, plans, specifications, or other documents prepared by or on behalf of the Subcontractor and such assignment shall create no rights in any other person unless accepted by Contractor. Contractor may assign this Subcontract, including but not limited to the Owner, the Owner's lender, or other entities as required by the Owner, to another contractor upon termination of the General Contract, or to any other persons or entities as required by the General Contract. (b) The Subcontractor shall not cause any unnecessary interference with or delay to the Contractor or to other subcontractors on said Project and shall repair promptly and be responsible for all damage done to the work of the Contractor or other subcontractors by Subcontractor, its agents, employees, subcontractors, or suppliers. Subcontractor shall be directly responsible to the Contractor or other subcontractors whose work is so damaged. The Contractor shall be responsible to the Subcontractor for physical damage to Subcontractor's work only if such damage is directly and proximately caused by the sole negligence of the Contractor. (c) The Subcontractor shall clean up and remove daily from the job site dirt, trash and debris arising from its work as directed by the Contractor. In the event the Subcontractor fails to clean up and remove such dirt, trash and debris, the Contractor may, at its discretion, arrange for the same at Subcontractor's expense. (d) The Subcontractor hereby assumes entire responsibility and liability for any and all damage or injury of any kind or nature whatever (including death resulting therefrom) to all persons, whether employees of any tier of the Subcontractor or otherwise and to all property caused by, resulting from, arising out of or occurring in connection with the execution of the Work, or in preparation for the Work, or any extension, modiñcation or amendment to the Work by change order or otherwise. Except to the extent, if any, expressly prohibited by statute and excluding from this indemnity such acts or omissions, if any, of the party indemniñed for which it is not legally entitled to be indemnified by the Subcontractor under applicable law, should any claims for such damage or injury (including death resulting therefrom) be made or asserted, whether or not such claims are based upon Whiting-Turner's or the Owner's alleged active or passive negligence or participation in the wrong or upon any alleged breach of any statutory duty or obligation on the part of Whiting-Turner or the Owner, the Subcontractor agrees to indemnify and save harmless Whiting-Turner and the Owner, their officers, agents, servants and employees from and against any and all such claims and further from and against any and all loss, cost, expense, liability, damage, penalties, fines or injury, including legal fees and disbursements, that Whiting-Turner and the Owner, their officers, agents, servants and employees, upon demand, the amount of any judgment that may be entered against Whiting-Turner and/or the Owner, their oflicers, agents, servants and employees in any such action. In the event that any such claims, loss, cost, expense, liability, damage, penalties, fines or injury arise or are made, asserted or threatened against Whiting-Turner and/or the Owner, their officers, agents, servants or employees, Whiting- SC-NY5 Rev. 1/2/15 Document Generated from CMiC FILED: WESTCHESTER COUNTY CLERK 01/18/2024 08:43 AM INDEX NO. 55548/2023 DocuSign Envelope ID: 4C1A753F-6E6A-4EC4-AC52-3BA5087FC582 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/18/2024 Turner shall have the right to withhold from any payments due or to become due to the Subcontractor an amount sufEcient in its judgment to protect and indemnify Whiting-Turner and the Owner, their officers, agents, servants and employees from and against any and all such claims, loss, expense, liability, damage, penalties, fines or injury, including legal fees and disbursements, or Whiting-Turner in its discretion may require the Subcontractor to furnish a surety bond satisfactory to Whiting-Turner guaranteeing such protection, which bond shall be furnished by the Subcontractor within five (5) days aner written demand has been made therefore. (e) Subcontractor acknowledges that, before executing this Agreement, it has carefully examined this Agreement, the Contract Documents and the Project site, has made such investigation of the Work required to be done and the material required to be furnished and, based upon such examination and investigation, Subcontractor represents that it fully understands and can perform all requirements of the Contract Documents. (f) With regard to the subject matter of this Subcontract: (1) Subcontractor shall have no greater rights and/or remedies against Contractor with respect to any matter (including, but not limited to, omissions, alterations, extra work and additional compensation) than Contractor has against Owner pursuant to the Contract Documents; (2) Subcontractor assumes all obligations, duties and responsibilities by which Contractor is bound to Owner pursuant to the Contract Documents; (3) Subcontractor shall be bound to Contractor to the same extent that Contractor is bound to Owner by all of the terms, provisions and conditions set forth in the Contract Documents; and (4) Owner shall have all rights and remedies against Subcontractor that Owner has against Contractor pursuant to the Contract Documents. (g) The Contractor shall have the right at any time, and for any or no reason, including for convenience, to terminate this Subcontract and require the Subcontractor to cease work thereon. The Subcontractor, in such event, shall be entitled to further payment only as provided in Article 5. The Subcontractor agrees to be bound by any and all provisions in the General Contract respecting renegotiation as well as termination for any reason. (h) Subcontractor agrees to clearly note on each payment check to, and related invoice of, its subcontractors and material suppliers which exceed One Thousand Dollars ($1,000.00), as being for work or materials provided pursuant to this Agreement for this Project, by name, all to be subject to Contractor's inspection upon request. Subcontractor also agrees to submit promptly to Contractor, upon request, the name, address and telephone number of each subcontractor or supplier of any tier, to Subcontractor for labor, materials, or equipment used on this Project. Contractor may contact any such subcontractors and suppliers and Subcontractor authorizes them to provide Contractor with any requested information (i) The Subcontractor warrants its workmanship and materials furnished against any defects, faults or damages arising therefrom during the period of construction and for a period of one year from the date of final completion of the Project (or for such longer period of time as may be required herein or by the Contract Documents). The Subcontractor shall remedy such defective workmanship, material, or damages at the request of the Contractor, at times convenient to the Owner, and to the satisfaction of Owner, Architect and Contractor. (j) Subcontractor shall comply with all applicable federal, state, and local laws and regulations by which it is bound and shall perform this Subcontract in strict conformity with applicable laws, codes, ordinances, rules, regulations and requirements of Federal, State, County and Municipal authorities and of the National Board of Fire Underwriters and any local fire Underwriters and any local fire insurance exchange now or hereafter in effect. In the event of any discrepancy between the present requirements of such laws or authorities and the provisions of this Subcontract, the former shall govern, and the Subcontractor shall perform the work as required thereby at no extra cost. Should the Subcontractor incur additional costs because of any future change in such requirements, additional compensation therefor shall be subject to Articles 5 and 6 hereof. If the Subcontractor performs any work or is otherwise in violation of any such laws, codes, ordinances, rules, regulations or requirements, it shall bear all costs arising or resulting therefrom. Where applicable, this contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. (k) Subcontractor shall be represented on the job site during the course of its work by qualified, full-time supervisors acceptable to Contractor. The Contractor shall have the right to require at any or all progress meetings, whether called by the Owner, the Contractor, or others, the presence of a representati