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COZEN O’ CONNOR, P.C.
Jonathan M. Ciriello (444807)
1650 Market Street, Suite 2800
One Liberty Place
Philadelphia, PA 19103
(215) 665-2000
jciriello@cozen.com
Attorneys for Defendants
DOCKET NO.: FST-CV23-6060966-S SUPERIOR COURT
NEW ERA MECHANICAL CORP. and LRC
FUNDING, LLC
JUDICIAL DISTRICT OF
STAMFORD-NORWALK
AT STAMFORD
170 GLOVER AVENUE, LLC, and ATLANTIC FEBRUARY 2, 2024
SPECIALTY INSURANCE COMPANY
RESPONSE IN NON-OPPOSITIONTO NEW ERA MECHANICAL CORP. AND
LRC FUNDING, LLC’S MOTIONTO CONSOLIDATE
Defendants, 170 Glover Avenue, LLC (“170 Glover’), and Atlantic Specialty Insurance
Company (collectively “Defendants”), by and through the undersigned counsel, hereby file this
Response in Non-Opposition to Plaintiffs, New Era Mechanical Corp. (“New Era’) and LRC
Funding, LLC’s (“LRC”) Motionto Consolidate.
FACTUAL BACKGROUND
This action, along with the other two related actions the parties’ seek to consolidate, arise
from construction projects whereby Defendants 170 Glover Avenue, LLC andits affiliated entities
HPP-One, LLC, and HPP-Six, LLC, respectively, entered into separate trade contracts (the “Trade
Contracts”) with Plaintiff, New Era, for plumbing work incorporated into the construction of three
high-rise residential apartment buildings. While the Trade Contracts each relate to different
projects with different costs and scopes of work, all three contracts involve largely identical terms
and conditions and impose the same legal obligations, rights, and defenses on the parties. This
specific action arises out of the Trade Contract entered into between 170 Glover and New Era on
June 10, 2020, for the construction project located at 300 Glover Avenue, Grist Mill Village,
Norwalk, Connecticut (the “Glover Apartment Project”). The second action, at Civil Docket No.
FST-CV23-6060971-S, arises out of the Trade Contract entered into between 170 Glover's
affiliate, HPP-Six, and New Era, executed on October 13, 2020, for the construction project
located at 0 Washington Blvd., #6, Stamford Connecticut (the “HPP-Six Project”). The final
action, at Civil Docket No. FST-CV23-6061197-S, arises out of the Trade Contract entered into
between 170 Glover's affiliate, HPP-One, and New Era, executed on March 12, 2020, for the
construction project located at 88 - Pacific Street, P1/P2 Harbor Point, Stamford, Connecticut (the
“HPP-One Project”). BLT Management, LLC (“BLT”) was the Project Manageron each of the
Trade Contracts. New Era contracted to provide plumbing and mechanical work at all of the
Projects.
Priorto filing the at-issue actions and mechanics liens, on or about March 26, 2021, New
Era and Co-Plaintiff LRC Funding LLC (“LRC”) executed an Assignment of Contrtact Proceeds
(the “Assignment’”) pursuantto which New Era assignedto LRC all of New Era’s right, title, and
interest
in and to all monies, and claims for monies, due to New Era under each respective Trade
Contract. LRC is not a party to any of the Trade Contracts nor was it involved - to the bestof
Defendant’
s knowledge - in any capacity in any of the at-issue Projects. Rather,
New Era owes a
significant amount of money to LRC for transactions entirely unrelated to the Projects. LRC was
aware that New Era had no ability to pay LRC for these unrelated obligations and, therefore,
conspired with New Era to fabricate and inflate claims against 170 Glover, HPP-Six, and HPP-
One, to satisfy the debts and obligations New
Era owes LRC.
Despite being over-paid for its work performed on each of the Projects and pursuant to
each Trade Contract, on or about July 26, 2022, New Era and LRC filed fraudulent and invalid
mechanics liens of approximately $2.4 million against the Glover Apartment Project; $1.7 million
against the HPP-Six Project, and $817,000 against the HPP-One Project, and subsequently
commenced three separate actions to foreclose on those liens. Defendants bonded off the liens,
and New Era and LRC, thereafter, filed the three operative amended complaints, alleging
unfounded identical claims and causes of action against 170 Glover, HPP-Six, and HPP-One,
respectively. The complaints related to the three Defendants purported delays, work disruptions,
changes in scope, back charges, failure to provide extensions, and alleged uncompensated
extra
and overtime work on the respective Projects.
Defendants informed New Era and LRC that there was no basis for their claims, that New
Era had been paid in full on each of the Projects, and, in fact, New Era was liableto 170 Glover
and its affiliates HPP-Six and HPP-One for, among other things, over payment on each of the
Projects. As such, in additionto answering New Ere’s unsupported complaints, all three
Defendants filed counterclaims against New Era and LRC for: (1) Breach of Contract (against
New Era); (2) Civil Conspiracy (against LRC); (3) Fraud/Misrepresentation - Fraudulent Billing
(against New Era and LRC); (4) Breach of the Implied Covenant of Good Faith and Fair Dealing
(against New Era); (5) Violation of Connecticut Unfair Trade Practices Act (against New Era); (6)
Violation of Connecticut Unfair Trade Practices Act (against LRC); and (7) Set off (against New
Era)
New Era and LRC’s claims, and Defendants’ defenses, are common amongst all three
actions.
ARGUMENT
Connecticut Practice Book § 9-5 provides, in relevant part, that “the judicial authority may,
upon the motion of any party or upon its own motion, order that [two or more] actions be
consolidated[.]” The question of whether two or more actions should be consolidated is left to the
discretion of the trial court. Rodev. Adley Express Co., Inc., 33 A.2d 329 (1943). The “public has
an interest in the prevention of unnecessary litigation, both because of the burden it places on the
State and the resulting crowding of the dockets of the courts. This procedure
of trying cases
together, which has long been the established practice in this state, assists in expediting business
without doing anyone injustice.” Id.
In deciding whether to consolidate two or more actions, Courts will consider whether “the
two actions involve the same parties and arise from the same transaction or occurrence.” Mola v.
Hone Depot U.S.A. Inc., No. CV-980167635S, 2000 WL 486864, at*1 (Conn. Super. Ct. Apr. 7,
2000). “Whether the action[s] arise out of the same transaction or involve identical parties are
important factors in determining the propriety of the joinder or the consolidation of actions.”
Clarkev. Ochart, Superior Court, judicial district of Middlesex at Middletown, Docket No. 68018
(Apil 13, 1993, Higgins, J.) (8 Com.L.Rptr. 609).
Here, in addition to the actions including identical Plaintiffs and affiliated Defendants, the
three Projects, Trade Contracts, claims and defenses are undeniably interrelated such that
consolidation of the three actions will serve judicial economy, efficiency, conservation of
resources, and dispense with duplicative litigation. Importantly, the Trade Contracts contain the
same tems and conditions and impose identical legal obligations and requirements onthe parties,
including the same contractual defenses that unequivocally dispose of Plaintiffs’ meritless claims.
By way of non-exhaustive example, in each of the three complaints Plaintiffs daim
entitlement to additional compensation for time extensions on the Projects; but each Trade
Contract unambiguously provides:
If Trade Contractor is delayed in the performance of its work for any reason
including acts or omissions of Owner or Company or Architect, but excluding its
own negligence or failure to diligently pursue the Work or the Owner's or
Company’s exercise of its rights under Paragraph 15, Trade Contractor shall be
entitledto an extension of time for the performance of its work. Trade Contractor
hereby recognizes that such time extension, shall beits soleremedy in the event
of any such as described in this and ‘walves. ri
to daim additional compensation as a result of such delays.
ExhibitA § 8(D) (emphasis added).
New Erasimilarly claims in each of its Complaints
that it was forcedto perform extra work
without additional compensation. Y et each Trade Contract provides:
[N]o additional work is to be performed or materials supplied without the approval
of ownership and the issuance of a Change Orderby our Accounting Department.
Field personnel are not authorized to approve additional work or materials. If
additional work is performed or materials supplied without an approved Change
Order from BLT Accounting Dept., you will not be paid.
Exhibit A [Trade Contract Cover Page]
New Era claims damages related to material increases, out of sequence
work, and.
additional work dates, yet Schedule B of each Trade Contract provides that the contract price
includes “all labor
and material escalation,” a “six (6) day work week,” and. “out of sequence work
as [the] project dictates[.]”
It is evident
that not only do the same illegitimate
claims permeate throughout all three of
Plaintiffs’ complaints, but the same contractual provisions provide unambiguous defenses in each
case. It would therefore be inefficient to litigate the same claims and defenses involving the same
parties in three separate actions.
Furthermore, New Era’s relationship with LRC and that relationship’ s impact on the claims
brought in this litigation is common amongst all actions. LRC is an entity with no involvement
whatsoever
on any of the Projects, yet, by virtue of an assignment of payment and claims, is a Co-
Plaintiff to New Era in each action. As discussed above, discovery and information relating to the
potential impropriety of LRC’s impact on New Era’s improper, unfounded and deficient claims
will be relevant across all actions and lends further support for consolidation of the matters.
VI. CONCLUSION
For the reasons stated herein, Defendant respectfully requests this Court consolidate Civil
Actions FST-CV23-6060966-S, FST-CV-6061197-S, and FST-CV23-6060971-S pursuant to
Connecticut Practice Book § 9-5.
Respectfully submitted,
COZEN O’ CONNOR, P.C.
/s/ Jonathan M. Ciriello
JonathanM. Ciriello (444807)
1650 Market Street, Suite 2800
One i Place
Philadelphia, PA 19103
(215) 665-2000
jciridlo@cozen.com
Attorneys for Defendants
Dated: February 2, 2024
CERTIFICATION
The undersigned hereby certifies that a copy of the foregoing was served via electronic
mail, pursuant
to Practice Book §§ 9-5 and 10-12 through 10-17 onthis 2™ dayof February, 2024,
upon all counsel and self-represented
parties appearing in this matter, as well as all counsel
and
self-represented parties appearing in Civil Docket Nos. FST-CV23-6061197-S and FST-CV23-
6060971, as follows:
Thomas G. Librizzi, Esquire
McElroy, Deutsch, Mulvaney & Carpenter
One State Street
14 Floor
Hartford, CT 06103
tlibrizzi@mdmc-law.com
/s/ Jonathan
M. Ciriello__
JonathanM. Ciriello
Dated: February 2, 2024
EXHIBITA
BIT Ma jement, LLG
Include the hii ed in ion in th ow on iD) iny Without this information we are
unable to process pavment,
Note: Only BLT approved change orders are to be included on monthly invoices (see change order
policy below) and list each change order individually as shown.
om
vi
PROJEC TH 2400-000
Vv p.
COST CODE 15-060 (Above Ground Plumbing)
INSURANCE: Provide a Certificate of Insurance as per Contract Paragraph 7 and Exhibit ‘E” for List of Additional
Insured information. Please provide a W9 if you are a new vendor.
NON-RESIDENT CONTRACTORS:
° All nonresident contractors must present a copy of their “Nonresident Contractor Notice of Verified
Status” letter as issued by the State of Connecticut.
If you do not have a “Nonresident Contractor Notice of Verified Status”, please refer to the State of
Connecticut SN 2012(2) for further information.
Unverified contractors will be subject to an additional 5% withholding per State of Connecticut.
INVOICES:
Invoices are due on the 25" of each month by 5 pm. Application should cover construction scope completed
thru the 25" of the month (not the end of the month.)
Email all construction invoices to: ConstrInvoices@bltoffice.com.
All contracts over $25,000 MUST USE the AIA G702/G703 with the line items matching the approved schedule
of values included with the contract. Not applicable to Architects and Engineers.
° All billing must itemize labor and materials.
° For CT sales tax requirements, all requisitions must either itemize the amount of tax charged for material
and/or labor or include the statement “All Applicable CT Sales & Use Tax Included”. If you are unable to
include this statement on the G702/G703, a separate invoice must accompany your requisition meeting the
same requirements.
PAYMENTS:
Payment will be on or close to the 15" of the following month. Accounting will email your waiver when checks
are ready. Please read and follow directions provided in the email.
BLT policy regarding change orders:
° The policy is simple — no additional work is to be performed or materials supplied without the approval of
ownership and the issuance of a Change Order by our Accounting Department.
Field personnel are not authorized to approve additional work or materials.
If any additional work is performed or materials supplied without an approved Change Order from BLT
Accounting Dept., you will not be paid.
If you have any additional scope which you believe would require a change to your contract, please send the
request to Estimating & Purchasing.
BLT mailing address: P.O. Box 110295, STAMFORD, CT 06911-0295
TRADE CONTRACT
This TRADE CONTRACT is between Owner (as hereinafter defined) and Trade Contractor (as
hereinafter defined). The General Conditions and Schedules attached hereto are integral to and
a part
of this TRADE CONTRACT
as if fully set forth herein.
For the purposes of this TRADE CONTRACT, the following definitions shall apply:
“Owner”
1 Elmeroft Road
Suite 500
Stamford, CT 66902
“Trade Contractor”:
ee
White Plains, NY 10603
“Company”:
1 Elmcroft Road
Suite 500
Stamford, CT 06902
“Project”: SE Rd tit
il LY
The following Schedules are attached hereto and incorporated herein by reference:
Schedule “A’ — List of Contract Documents
Schedule “B” — Scope of Work
Schedule “C” — Contract Price and Payment Terms
Schedule “D° — Form of Lien Waiver
Schedule “E” — Form of Change Order
Schedule “F° — Additional insureds
Schedule “G" - Hot Work Permit
Schedule “H” - Safety Violation Notice
Schedule ‘I’ — Services Certificate for New Construction (CERT-104)
IN WITNESS WHEREOF, the parties, by their
executed this Trade Contract, on the Jo day of Len authorized representatives, have hereunto
20/0 .
WITNESS: TRADE CONTRACTOR:
New Era Mechanical Corp.
Bi
Notary Public, State of New York Ni
No. 01GR6050659 Title: Le Eicta nile
Qualified in Westchester
Commission Expires Nov. 13, 20_2:2.—
ESS: OWNER:
170 Glover Avenue LLC
Binns rodSigal
a
a
Lydiz odrig juez arl - Ku r
Title: Autho ignatory
L TRADE GENERAL CONDITIONS _]
These General Conditions are an integral part of the Trade Contract to which they are attached
and together they form a single document.
1Introduction. Owner intends to construct the Project according to the "Contract Documents"
which Contract Documents include the plans and specifications, receipt of which by Trade
Contractor is hereby acknowledged.
Owner wishes to contract for certain trade work specified in the Contract Documents, and Trade
Contractor wishes to perform that work at the prices and upon the terms and conditions
hereinafter set forth.
Owner has designated Company as its agent for construction management and supervision of
performance of the Trade Contract.
NOW, THEREFORE, in consideration of the mutual agreements contained herein, the parties
agree as follows:
2. Scope of Work. Trade Contractor agrees to perform or provide, utilizing its professional skill
and attention and in a timely manner, professional services in accordance with the following
provisions (the "Services"):
A. Trade Contractor agrees to perform certain work for Owner in accordance with the
requirements outlined in this Trade Contract. The services to be performed are described on the
attached scope as amended (the “Proposal”), incorporated herein by reference (Schedule “B”).
B. All work shall be performed in accordance with the Trade General Conditions contained
herein.
C. Trade Contractor shall perform all work and shall furnish all supervision, labor, nails,
plant, scaffolding, tools, equipment, supplies and all other things necessary for the construction
and completion of the Work as detailed in Schedule “B”, and work incidental thereto (the
"Work"), in strict accordance and full compliance with the terms of this Trade Contract and the
Contract Documents, and to the satisfaction of Owner and Company. If any conflict arises
between the terms of the Trade Contract and the other Contract Documents, such as a proposal
attached by the Trade Contractor, this Trade Contract shall govern.
D. Without limiting the provisions of the Proposal, Trade Contractor shall provide Owner
and Company with whatever assistance is reasonably requested by Owner or Company in
connection with Owner's efforts to obtain requisite approvals of the Project from any
governmental authority.
E. Without limiting the provisions of the Proposal, Trade Contractor shall attend meetings
with the Owner or Company, Architect and their other Consultants on an as-needed basis during
the design and construction of the Project and shail otherwise assist and cooperate with Owner
and Company, Architect and their other Consultants in furthering the interests of Owner and the
successful and timely completion of the Project. If Trade Contractor fails to attend any mandatory
project meeting, Trade Contractor shall be charged a fee of One Thousand Dollars ($1,000.00).
3. ‘Trade Contract Price and Payment. Owner shall pay Trade Contractor the Services Fee,
subject to additions and deductions, which is broken down as set forth on Schedule “C”,
attached hereto.
A. Trade Contractor will submit to Owner a breakdown of the total Services Fee Budget’, to
be described in Schedule “C”.
B. On, or prior to, the twenty-fifth day of each calendar month, in which the Trade
Contractor has completed the work, the Trade Contractor shall submit to the Owner an
application for payment, in a form satisfactory to the Owner, for the work completed through the
twenty-fifth day of said month. The original invoice must be received in the office of
Company, clo BLT Management, LLC, P.O. Box 110295, 1 Elmcroft Road, Suite 500,
Stamford, CT 06911-0295 not later than 12:00 PM on the twenty-fifth. Invoices received after
the twenty-fifth of the month will not become payable until the next payment cycle. The only
exception to this policy shall be when the twenty- fifth of the month falls on a Sunday, in which
case invoices will be accepted up until 12:00 PM on the twenty-sixth.
C. Progress payments shall be payable to the Trade Contractor monthly based on the
value of the work completed during the month covered by the application for payment, as
determined by the Company, or based on payments as outlined in Schedule “C”. Applications
for payment shall indicate the percentage of completion of each portion of the Work, as of the
end of the period covered by the application for payment. The amount of each progress payment
shall be computed as follows:
+Take that portion of the Trade Contract Price properly allocated to the completed Work,
as determined by multiplying the percentage completion of each portion of the Work, by
the share of the Trade Contract Price allocated to that portion of the Work in the
Schedule of Values.
+ Subtract retainage of 5%, and,
+ Subtract the aggregate of all previous payments made by the Owner.
The net result shall be the amount of the progress payment.
D. Owner shall pay to Trade Contractor the amount of said application which Owner
approves on or about the fifteenth day of the month following the month covered by the
application for payment. No progress payment made under this Trade Contract or entrance or
use by Owner shall be considered an acceptance of the work in whole or in part. All material and
work covered by progress payments shall become the property of Owner; but Trade Contractor
shall bear the sole responsibility and liability for all work and materials upon which payments
have been made until final acceptance thereof by Owner.
E. Trade Contractor shall submit, with each application for a progress payment, evidence
(satisfactory to Owner) that all its suppliers and subcontractors of any tier have been fully paid or
4
have signed mechanic's lien waivers in favor of Owner. Trade Contractor shall also submit a
waiver of lien covering all Work in the form attached hereto as Schedule "D".
F. Trade Contractor shail insure that all its subcontractors, employees and suppliers, at all
times, are paid on time all amounts due in connection with the performance of the Trade
Contract. Owner or Company shall have the right, at any time, to contact Trade Contractor's
subcontractors and suppliers for the purpose of verifying that Trade Contractor's payment
obligations are being met. If Owner believes Trade Contractor is not fulfilling its payment
obligations, Owner may take any steps necessary to insure that progress payments are used to
fulfill those payment obligations, including without limitation the right to pay subcontractors or
suppliers directly on Trade Contractor's behalf or to withhold from subsequent progress
payments a reasonable amount to protect Owner from any and all claims, loss or damage,
including attorney's fees arising out of any claim or lien, until Trade Contractor submits evidence
(satisfactory to Owner) that it has paid all previous amounts owed in connection with the
performance of this Trade Contract. Trade Contractor shall also immediately reimburse Owner
for any amounts paid by Owner, including costs and attorney's fees, in connection with this
Trade Contract caused by Trade Contractor's failure to make payments as provided in this
Paragraph.
G. Owner shall not make final payment until Trade Contractor's Work has been accepted by
Owner, satisfactory proof of payment of all amounts owed by Trade Contractor in connection
with this Trade Contract has been provided, (including lien waivers as provided in Paragraph
13.b) and the Work completed. The acceptance of final payment shall constitute a waiver of all
claims by Trade Contractor except those previously made in writing and identified by Trade
Contractor as unsettled at the time the application for final payment is submitted.
H. If it reasonably appears that the Services Fee, as defined in Schedule “C”, may exceed
the Services Fee Budget, as defined in Schedule “C”, Trade Contractor shall immediately
deliver to Company notice thereof. Company shall not be responsible for any Services Fee
in excess of the Services Fee Budget unless Company provides, in writing, to Trade
Contractor prior authorization for such increase in the Services Fee Budget in the form of
Change Order annexed hereto as Schedule “E”.
|. Trade Contractor will provide detailed billing records to support each invoice, including the
name of the staff member who performed the work, the time work commenced and was
completed at each location and total hours. To the extend Trade Contractor is working on
multiple projects at the Glover Avenue location, Trade Contractor will aggregate the daily hours
for each staff member at all sites in calculating the amounts to be billed. By way of example, if
the staff member works on job A for 6 hours and job B for 5 hours, the total hours to be billed will
be 11 hours, not two full days as stated in the proposal. The 11 hours worked will equate to one
full day and one-half day based on minimums in the proposal.
4. Administration of the Trade Contract.
A. Company will provide the general administration for the Project.
B. Company shall have the responsibility to supervise and coordinate the work of all trade
contractors.
C. Company shall prepare and update all Construction Schedules and shall direct the work
with respect to such schedules.
D. Company shall have the authority to reject work which does not conform to the Contract
Documents and to require any special inspection and testing in accordance with Paragraph 4.
E. Company may issue change orders to Trade Contractor in accordance with Paragraph
10.
F. Company, along with Architect, will conduct inspections to determine the dates of
substantial completion and final completion, and will receive and review written warranties and
related Documents required by the Trade Contract and assembled by Trade Contractor.
G. The Trade Contractor shall not create any third-party beneficiaries.
5. Trade Contractor's Investigations and Representations. Trade Contractor represents that it
is fully qualified to perform this Trade Contract and acknowledges that, prior to the execution of
this Trade Contract, it has (a) by its own independent investigation ascertained (i) the feasibility
of performing the Work required by this Trade Contract within the Services Fee Budget, (ji) the
conditions involved in performing the Work, and (iii) the obligations of this Trade Contract and
the Contract Documents; and (b) verified all information furnished by Owner or Company or
others satisfying itself as to the correctness and accuracy of that information; and (c) complied
with all required state and Iccal filings regarding the right to do business in the municipality
where the Project is located.
6. Trade Contractor's Liability.
A. Trade Contractor hereby assumes the entire responsibility and liability for all work,
supervision, labor and materials provided hereunder, whether or not erected in place, and for all
plant, scaffolding, tools, equipment, supplies and other things provided by Trade Contractor until
final acceptance of the Work by Owner. In the event of any loss, damage or destruction thereof
from any cause, Trade Contractor shall be liable therefore, and shall repair, rebuild and make
good said loss, damage or destruction at Trade Contractor's expense.
B. Trade Contractor shall be liable to Owner for all costs Owner incurs as a result of Trade
Contractor's failure to perform this Trade Contract in accordance with its terms. Trade
Contractor's failure to perform shall also include the failure of its suppliers and/or subcontractors
of any tier to perform. Trade Contractor's liability shall include, but not be limited to (1) damages
and other delay costs; (2) increased Project costs, such as increased performance costs
resulting from Trade Contractor caused delays or improper Trade Contractor work; (3) warranty
and rework cost; (4) liability to third parties; and (5) attorney's fees and related costs.
C. Trade Contractor shall indemnify defend and hold harmless Owner and Company,
including its affiliates, parents and subsidiaries defined as Additional Insureds (Schedule “F”),
and all of their agents and employees, from and against all claims, damages, loss and expense,
including, but not limited to attorney's fees, arising out of or resulting from the performance of
Trade Contractor's work attributable to bodily injury, sickness, disease or death, or to injury to
destruction of tangible property, including the loss of use resulting there from, to the extent
caused in whole or in any part by any negligent act or omission of Trade Contractor or anyone
6
directly or indirectly employed by Trade Contractor or anyone for whose acts Trade Contractor
may be liable, regardless of whether it is caused in part by a party indemnified hereunder.
Without limiting the foregoing, said indemnification and hold harmless shall also specifically
extend to any claim made against Owner or Company due to lapse of Trade Contractor's
required insurance or any permit or other filing required to be made by Trade Contractor in order
to perform the Work.
D. In the event that Trade Contractor or any of its agents, employees, suppliers,
subcontractors or lower tier subcontractors utilize any machinery, equipment, tools, scaffolding,
hoists, lifts or similar items belonging to or under the control of Company, Trade Contractor shall
be liable to Company for any loss or damage (including loss due to personal injury or death)
which may arise from such use, except where such loss or damage shall be due solely to the
negligence of Company's employees operating Company owned or leased equipment.
E. Owner is hereby given the right to withhold amounts otherwise due under this Trade
Contract or under any other contractual arrangement between the parties or between Owner's
affiliates and Trade Contractor or any affiliate of Trade Contractor to cover any costs or liability
Owner or its affiliates have incurred or may incur for which Trade Contractor or its affiliates may
be responsible hereunder.
F. Trade Contractor's assumption of liability is independent from, and not limited in any
manner by, Trade Contractor's insurance coverage obtained pursuant to Paragraph 7, or
otherwise.
G. Trade Contractor agrees to accept liability for the cost of penalties incurred by Owner
pursuant to governing Occupational Health & Safety acts that result from Trade Contractors acts
or omissions.
7 Insurance.
A. Trade Contractor shall obtain and maintain throughout the term of this Trade Contract,
at its own expense, the insurance described below, and such other additional Commercial
Liability, Workers Compensation, Automobile and Professional Liability Insurance as will
adequately protect Trade Contractor from claims which may arise or result from Trade
Contractor's performance or by anyone employed by it. Such Commercial Liability and
Automobile Insurance shall include the parties on the list annexed hereto as additional insureds
(collectively, the “Additional In: is’). Insurance Coverage shall be maintained until completion
and final acceptance of the work as follows:
1. Insurance covering claims under workers compensation, disability benefit, and other
similar employee benefit acts. Insurance also covering claims for damages because of
bodily injury, occupational disease or sickness, or death of employees with the
following limits:
() Workers' Compensation. Workers' Compensation Insurance, as required by the
laws of the state in which work is to be performed including Employers’ Liability (at
a minimum limit of One Million Dollars ($1,000,000).
(ii) Commercial General Liability. Commercial General Liability shall be written on a
CG 0001 occurrence form or equivalent (claims made coverage not acceptable)
with reasonable deductibles acceptable to Owner, providing minimum coverage
limits (with defense costs outside of the limit for additional insureds) of $1,000,000
each occurrence, $1,000,000 personal & advertising injury, $2,000,000
Pproducts/completed operations aggregate, $2,000,000 general aggregate on a per
project basis, or the limits carried, whichever is greater. Coverage shall include
Bodily Injury, Property Damage, Personal injury, Blanket Contractual (specifically
covering Contractor for liability, loss, cost and damage, including attomeys' fees,
assumed by Contractor under the provisions of the Indemnity set forth in
Paragraph |i below), Broad Form Property Damage, Independent Contractors,
Products and Completed Operations (including coverage for the additional
insureds, whether by endorsement or renewal of coverage, for 2 years after final
completion of the Project or equal to the statute of limitations under the applicable
state’s law, whichever is greater), and Explosion, Collapse and Underground
Hazard (XCU) coverage for any subsurface activities.
(iil) Commercial Automobile Liability. Commercial automobile insurance covering all
owned, leased and non-owned vehicles used in connection with the work with limits
of $1,000,000 combined single limit per accident for bodily injury and property
damage which shall apply as primary and non-contributory insurance. The policy
must include coverage for bodily injury, death and property damage arising out of
contracting for, maintenance or use of any motorized vehicle on or off the site of
the Project, and Contractual Liability coverage. If hauling of hazardous waste is
part of the work, Automobile Liability Insurance with a $1,000,000 combined single
limit per occurrence for bodily injury and property damage applicable to all
hazardous waste hauling vehicles and including the MCS 90 endorsement and the
{SO Form CA 99 48 (Pollution Liability Broadened Coverage for Business
Automobile).
(iv) Umbrella/Excess Liability. Umbrella/Excess liability insurance coverage excess of
the Employers Liability, General Liability, and Auto Liability on a follow-form basis
and meeting the same requirements as the underlying coverage with minimum
limits of $5,000,000 each occurrence and in the aggregate, or the limits carried,
whichever are greater. Umbrella/Excess insurance shall be specifically endorsed to
provide that such limits are primary and non-contributory to any insurance of the
Owner Parties and any other additional insured as defined below.
) Business Personal Property. Contractor shall also be required to purchase
acceptable “All-Risk” property coverage or provide acceptable proof of self-
insurance for all personal property, including any tools, machinery, equipment
sheds, and materials or supplies, on a replacement cost basis, and such policy
should grant a waiver of subrogation in favor of the Owner Parties. The Owner
Parties and their agents take no responsibility for contractor's personal property.
(vi) Professional Liability (if Required by Owner). Professional Liability covering errors
and/or omissions in the performance of professional services in conjunction with
the project. The coverage shall provide for a five-year discovery period after
completion of the contract in which claims can be made. Trade Contractor shall
maintain Professional Liability with a limit of not less than $5,000,000.00.
(vii) VITO! menta |_ and overage (Rex quired for all Demo a nd
eme Work or as OMEerwt ted wner) If this Trade Contract involves
b
the removal of asbestos, the removalreplacement of underground tanks or use of
toxic chemicals and substances, the Contractor will be required to provide
adequate coverage on a primary and non-contributory basis, in an amount not less
than $5,000,000 on a per claim basis for sudden or accidental pollution including
transportation and non-owned disposal facilities. This insurance must be
maintained for a period of at least 6 years after completion of the work to be
performed.
2. All Additional insured parties on the list annexed hereto shall be so named on all
policies with the exception of Commercial Property, Workers Compensation, and
Professional Liability. Such grant of coverage shall apply on a primary and non-
contributing basis before any other Insurance or self-Insurance, including any
deductible, maintained by, or provided to, said additional insureds, and shall remain in
effect for the duration of the contract, including the Completed Operations Period
(seven years from the date of execution of this Trade Contract). All policies shall be
endorsed to Waive all Rights of Subrogation in favor of the list of Additional Insured
Parties on the list annexed hereto.
B. Before commencing work, Trade Contractor shall furnish a certificate, satisfactory to
Owner and Company, naming Owner and Company and the Additional Insureds as additional
insured, from each insurance company showing that the above insurance is in force, stating
policy numbers, dates of expiration, and limits of liability there under, and further providing that
the insurance will not be canceled or changed until the expiration of at least thirty (30) days after
written notice of such cancellation or change has been received by Owner and Company.
C. Trade Contractor shall also furnish to Owner and Company, with the “Schedule Page” or
“Endorsement Page” from its Worker's Compensation Policy as evidence of Trade Contractor's
Worker's Compensation coverage in the State of Connecticut. Trade Contractor shall attach
either the “Schedule Page” or Endorsement Page” to its certificate(s) of insurance and submit
this documentation to Owner and Company simultaneously before commencing work.
D. Trade Contractor shall provide in any subcontracts pertaining to the Work which it might
enter into that the subcontractors obtain the foregoing insurance coverage and Worker's
Compensation coverage in the State of Connecticut. Trade Contractor shall also provide Owner
and Company with certificates of insurance and the “Schedule” or “Endorsement “Page from the
Worker's Compensation Policies of any subcontractors Trade Contractor employs to perform
work on the Project, in a form consistent with the Paragraph 7. Trade Contractor shall guarantee
that its subcontractors maintain the required insurance and Worker's Compensation coverage in
the State of Connecticut until their work is accepted by Owner.
E. Coverage Requirements. All insurance policies maintained by the Contractor and
subcontractors, if any, pursuant to this Trade Contract shall name the Owner and Owner Parties
as Additional Insureds. Further, the amount of insurance available to Contractor or the additional
insured shall be for the full amount of the loss up to policy limits of liability and shall not be
9
limited to any minimum requirements stated in the Contract Documents. The Additional Insured
Endorsement shall be on Form CG 20 10 04/13, or CG 20 37 10/01 plus CG 20 37 04/13, or
equivalent, and shall include ongoing and completed operations coverage, without any additional
restrictions. Insurance policies shall not contain any coverage exclusions for injury to employees,
bodily injury, height limitations. Contractor's insurance policies shall contain an endorsement
stating (i) that such insurance shall be primary to any insurance maintained by Owner Parties,
whether required by contract or not, as to any and all claims, losses or liabilities arising directly
or indirectly from the Contractor's operations and any insurance maintained by Owner Parties
shall be non-contributory with the insurance provided hereunder, and (ii) that an act or omission
of one of the Named Insureds shall not reduce or void coverage to the other named Insureds
and shall afford coverage for all claims based on acts, omissions, injury and damage, which
claims occurred or arose (or the onset of which occurred or arose) in whole or in part during the
policy period. Contractor shall be responsible, at no additional cost to Owner Parties for the
payment of any deductibles, chargebacks, or self-insured retention of any amount in connection
with the insurance coverages required by this Trade Contract.
F. Miscellaneous. The coverage obtained pursuant to the provisions of the insurance clause
shall include insurance against damage from design warranties given by Contractor's
subcontractors and material men, if any. All insurance described under the insurance clause to
be carried by Contractor will be maintained by Contractor at its expense with insurance carriers
licensed and approved to do business in Connecticut having a rating of not less than "A" and a
financial rating of not less than "VIII" in the most current AM Best's Key Rating Guide. The
insurance coverages maintained by Contractor shall not limit any of Contractor's indemnity
obligations or other liabilities under this Trade Contract. This obligation shall survive any
termination of the Trade Contract.
G. Subcontractor Insurance and Indemnification. Contractor shall not allow any consultant
or subcontractor to commence any work until Contractor obtains from such consultant or
subcontractor the exact insurance required to be carried by Contractor under the insurance
clause including, but not limited to:
(i) the type and amount of coverage and evidence thereof required by Section 7(A)(1),
(ii) a waiver of subrogation in favor of Contractor and Owner Parties,
(iii) the additional insured endorsement required in Section 7(E),
(iv) notice of cancellation in accordance with Section 7(B), and
(v) insurance with carriers meeting the standards of Paragraph 5.
Contractor shall also obtain from any such consultant or subcontractor an indemnification in form
and substance identical to the indemnity as contained in this Rider, with the modification that
such indemnity shail be from the consultant or subcontractor for the benefit of the Owner and
Owner Parties.
8. Prot : Time
of Performance.
A. Upon award of the Trade Contract, Trade Contractor shall submit to Company an
estimated progress schedule for the Work. The progress schedule shall provide for the
expeditious and practicable execution of the Work. This schedule shall indicate the dates for the
starting and completion of the various stages of construction, shall be revised as required by the
conditions of the Work, and shall be subject to Owner's approval. Trade Contractor shall provide
10
Company with any requested scheduling information for Trade Contractor's Work. Once
approved by Company, the progress schedule and all subsequent changes shall bind the Trade
Contractor. TIME BEING OF THE ESSENCE.
B. Trade Contractor recognizes that Owner or Company may amend the progress
schedule and agrees to comply with such amendments subject to a reservation of right arising
hereunder.
C. Trade Contractor will proceed with the Work promptly and diligently in accordance with
the progress schedule as reasonably amended from time to time, and TIME IS OF THE
ESSENCE with respect to Trade Contractor's performance. If any scheduling amendment results
in acceleration of Trade Contractor's performance, Trade Contractor shall be entitled to
additional compensation for complying with said amendment in the form of any actual additional
wages or premiums paid by Trade Contractor, at rates approved by the Owner, plus applicable
levies, fringes and benefits; provided, Trade Contractor shall only be entitled to additional
compensation if Trade Contractor is not in default under any terms of the Trade Contract. If,
however, the progress of the Work or if the Project be delayed by any fault or neglect of the
Trade Contractor, it shall work such overtime as may be necessary to make up for all time lost by
such neglect or default. If Trade Contractor refuses to work such overtime or supply additional
labor to recover such loss caused by its fault or negligence, then Owner shall have the right to
supplement Trade Contractor's forces with whatever additional labor it deems necessary at
Trade Contractor's cost and to withhold the cost of such additional labor from any sums due or to
become due to Trade Contractor.
D. if Trade Contractor is delayed in the performance of its work for any reason including
acts or omissions of Owner or Company or Architect, but excluding its own negligence or failure
to diligently pursue the Work or the Owner's or Company's exercise of its rights under Paragraph
15, Trade Contractor shall be entitled to an extension of time for the performance of its work.
Trade Contractor hereby recognizes that such time extension, shall be its sole remedy in the
event of any such delays as described in this paragraph and hereby waives any right to claim
additional compensation as a result of such delays.
9. Supervision and Construction Procedures. Trade Contractor shall supervise and direct its
Work using its best skill and attention. Trade Contractor shall be solely responsible for all
construction means, methods, techniques, sequences and procedures and for coordinating all
portions of the Work under the Trade Contract subject to the overall coordination of the
Company.
10. Changes and Claims.
A. Owner or Company may, at any time, unilaterally or by agreement with Trade
Contractor, and without notice to its surety, if any, make changes in the Wor
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COZEN O’ CONNOR, P.C. Jonathan M. Ciriello (444807) 1650 Market Street, Suite 2800 One Liberty Place Philadelphia, PA 19103 (215) 665-2000 jciriello@cozen.com Attorneys for Defendants DOCKET NO.: FST-CV23-6060966-S SUPERIOR COURT NEW ERA MECHANICAL CORP. and LRC FUNDING, LLC JUDICIAL DISTRICT OF STAMFORD-NORWALK AT STAMFORD 170 GLOVER AVENUE, LLC, and ATLANTIC FEBRUARY 2, 2024 SPECIALTY INSURANCE COMPANY RESPONSE IN NON-OPPOSITIONTO NEW ERA MECHANICAL CORP. AND LRC FUNDING, LLC’S MOTIONTO CONSOLIDATE Defendants, 170 Glover Avenue, LLC (“170 Glover’), and Atlantic Specialty Insurance Company (collectively “Defendants”), by and through the undersigned counsel, hereby file this Response in Non-Opposition to Plaintiffs, New Era Mechanical Corp. (“New Era’) and LRC Funding, LLC’s (“LRC”) Motionto Consolidate. FACTUAL BACKGROUND This action, along with the other two related actions the parties’ seek to consolidate, arise from construction projects whereby Defendants 170 Glover Avenue, LLC andits affiliated entities HPP-One, LLC, and HPP-Six, LLC, respectively, entered into separate trade contracts (the “Trade Contracts”) with Plaintiff, New Era, for plumbing work incorporated into the construction of three high-rise residential apartment buildings. While the Trade Contracts each relate to different projects with different costs and scopes of work, all three contracts involve largely identical terms and conditions and impose the same legal obligations, rights, and defenses on the parties. This specific action arises out of the Trade Contract entered into between 170 Glover and New Era on June 10, 2020, for the construction project located at 300 Glover Avenue, Grist Mill Village, Norwalk, Connecticut (the “Glover Apartment Project”). The second action, at Civil Docket No. FST-CV23-6060971-S, arises out of the Trade Contract entered into between 170 Glover's affiliate, HPP-Six, and New Era, executed on October 13, 2020, for the construction project located at 0 Washington Blvd., #6, Stamford Connecticut (the “HPP-Six Project”). The final action, at Civil Docket No. FST-CV23-6061197-S, arises out of the Trade Contract entered into between 170 Glover's affiliate, HPP-One, and New Era, executed on March 12, 2020, for the construction project located at 88 - Pacific Street, P1/P2 Harbor Point, Stamford, Connecticut (the “HPP-One Project”). BLT Management, LLC (“BLT”) was the Project Manageron each of the Trade Contracts. New Era contracted to provide plumbing and mechanical work at all of the Projects. Priorto filing the at-issue actions and mechanics liens, on or about March 26, 2021, New Era and Co-Plaintiff LRC Funding LLC (“LRC”) executed an Assignment of Contrtact Proceeds (the “Assignment’”) pursuantto which New Era assignedto LRC all of New Era’s right, title, and interest in and to all monies, and claims for monies, due to New Era under each respective Trade Contract. LRC is not a party to any of the Trade Contracts nor was it involved - to the bestof Defendant’ s knowledge - in any capacity in any of the at-issue Projects. Rather, New Era owes a significant amount of money to LRC for transactions entirely unrelated to the Projects. LRC was aware that New Era had no ability to pay LRC for these unrelated obligations and, therefore, conspired with New Era to fabricate and inflate claims against 170 Glover, HPP-Six, and HPP- One, to satisfy the debts and obligations New Era owes LRC. Despite being over-paid for its work performed on each of the Projects and pursuant to each Trade Contract, on or about July 26, 2022, New Era and LRC filed fraudulent and invalid mechanics liens of approximately $2.4 million against the Glover Apartment Project; $1.7 million against the HPP-Six Project, and $817,000 against the HPP-One Project, and subsequently commenced three separate actions to foreclose on those liens. Defendants bonded off the liens, and New Era and LRC, thereafter, filed the three operative amended complaints, alleging unfounded identical claims and causes of action against 170 Glover, HPP-Six, and HPP-One, respectively. The complaints related to the three Defendants purported delays, work disruptions, changes in scope, back charges, failure to provide extensions, and alleged uncompensated extra and overtime work on the respective Projects. Defendants informed New Era and LRC that there was no basis for their claims, that New Era had been paid in full on each of the Projects, and, in fact, New Era was liableto 170 Glover and its affiliates HPP-Six and HPP-One for, among other things, over payment on each of the Projects. As such, in additionto answering New Ere’s unsupported complaints, all three Defendants filed counterclaims against New Era and LRC for: (1) Breach of Contract (against New Era); (2) Civil Conspiracy (against LRC); (3) Fraud/Misrepresentation - Fraudulent Billing (against New Era and LRC); (4) Breach of the Implied Covenant of Good Faith and Fair Dealing (against New Era); (5) Violation of Connecticut Unfair Trade Practices Act (against New Era); (6) Violation of Connecticut Unfair Trade Practices Act (against LRC); and (7) Set off (against New Era) New Era and LRC’s claims, and Defendants’ defenses, are common amongst all three actions. ARGUMENT Connecticut Practice Book § 9-5 provides, in relevant part, that “the judicial authority may, upon the motion of any party or upon its own motion, order that [two or more] actions be consolidated[.]” The question of whether two or more actions should be consolidated is left to the discretion of the trial court. Rodev. Adley Express Co., Inc., 33 A.2d 329 (1943). The “public has an interest in the prevention of unnecessary litigation, both because of the burden it places on the State and the resulting crowding of the dockets of the courts. This procedure of trying cases together, which has long been the established practice in this state, assists in expediting business without doing anyone injustice.” Id. In deciding whether to consolidate two or more actions, Courts will consider whether “the two actions involve the same parties and arise from the same transaction or occurrence.” Mola v. Hone Depot U.S.A. Inc., No. CV-980167635S, 2000 WL 486864, at*1 (Conn. Super. Ct. Apr. 7, 2000). “Whether the action[s] arise out of the same transaction or involve identical parties are important factors in determining the propriety of the joinder or the consolidation of actions.” Clarkev. Ochart, Superior Court, judicial district of Middlesex at Middletown, Docket No. 68018 (Apil 13, 1993, Higgins, J.) (8 Com.L.Rptr. 609). Here, in addition to the actions including identical Plaintiffs and affiliated Defendants, the three Projects, Trade Contracts, claims and defenses are undeniably interrelated such that consolidation of the three actions will serve judicial economy, efficiency, conservation of resources, and dispense with duplicative litigation. Importantly, the Trade Contracts contain the same tems and conditions and impose identical legal obligations and requirements onthe parties, including the same contractual defenses that unequivocally dispose of Plaintiffs’ meritless claims. By way of non-exhaustive example, in each of the three complaints Plaintiffs daim entitlement to additional compensation for time extensions on the Projects; but each Trade Contract unambiguously provides: If Trade Contractor is delayed in the performance of its work for any reason including acts or omissions of Owner or Company or Architect, but excluding its own negligence or failure to diligently pursue the Work or the Owner's or Company’s exercise of its rights under Paragraph 15, Trade Contractor shall be entitledto an extension of time for the performance of its work. Trade Contractor hereby recognizes that such time extension, shall beits soleremedy in the event of any such as described in this and ‘walves. ri to daim additional compensation as a result of such delays. ExhibitA § 8(D) (emphasis added). New Erasimilarly claims in each of its Complaints that it was forcedto perform extra work without additional compensation. Y et each Trade Contract provides: [N]o additional work is to be performed or materials supplied without the approval of ownership and the issuance of a Change Orderby our Accounting Department. Field personnel are not authorized to approve additional work or materials. If additional work is performed or materials supplied without an approved Change Order from BLT Accounting Dept., you will not be paid. Exhibit A [Trade Contract Cover Page] New Era claims damages related to material increases, out of sequence work, and. additional work dates, yet Schedule B of each Trade Contract provides that the contract price includes “all labor and material escalation,” a “six (6) day work week,” and. “out of sequence work as [the] project dictates[.]” It is evident that not only do the same illegitimate claims permeate throughout all three of Plaintiffs’ complaints, but the same contractual provisions provide unambiguous defenses in each case. It would therefore be inefficient to litigate the same claims and defenses involving the same parties in three separate actions. Furthermore, New Era’s relationship with LRC and that relationship’ s impact on the claims brought in this litigation is common amongst all actions. LRC is an entity with no involvement whatsoever on any of the Projects, yet, by virtue of an assignment of payment and claims, is a Co- Plaintiff to New Era in each action. As discussed above, discovery and information relating to the potential impropriety of LRC’s impact on New Era’s improper, unfounded and deficient claims will be relevant across all actions and lends further support for consolidation of the matters. VI. CONCLUSION For the reasons stated herein, Defendant respectfully requests this Court consolidate Civil Actions FST-CV23-6060966-S, FST-CV-6061197-S, and FST-CV23-6060971-S pursuant to Connecticut Practice Book § 9-5. Respectfully submitted, COZEN O’ CONNOR, P.C. /s/ Jonathan M. Ciriello JonathanM. Ciriello (444807) 1650 Market Street, Suite 2800 One i Place Philadelphia, PA 19103 (215) 665-2000 jciridlo@cozen.com Attorneys for Defendants Dated: February 2, 2024 CERTIFICATION The undersigned hereby certifies that a copy of the foregoing was served via electronic mail, pursuant to Practice Book §§ 9-5 and 10-12 through 10-17 onthis 2™ dayof February, 2024, upon all counsel and self-represented parties appearing in this matter, as well as all counsel and self-represented parties appearing in Civil Docket Nos. FST-CV23-6061197-S and FST-CV23- 6060971, as follows: Thomas G. Librizzi, Esquire McElroy, Deutsch, Mulvaney & Carpenter One State Street 14 Floor Hartford, CT 06103 tlibrizzi@mdmc-law.com /s/ Jonathan M. Ciriello__ JonathanM. Ciriello Dated: February 2, 2024 EXHIBITA BIT Ma jement, LLG Include the hii ed in ion in th ow on iD) iny Without this information we are unable to process pavment, Note: Only BLT approved change orders are to be included on monthly invoices (see change order policy below) and list each change order individually as shown. om vi PROJEC TH 2400-000 Vv p. COST CODE 15-060 (Above Ground Plumbing) INSURANCE: Provide a Certificate of Insurance as per Contract Paragraph 7 and Exhibit ‘E” for List of Additional Insured information. Please provide a W9 if you are a new vendor. NON-RESIDENT CONTRACTORS: ° All nonresident contractors must present a copy of their “Nonresident Contractor Notice of Verified Status” letter as issued by the State of Connecticut. If you do not have a “Nonresident Contractor Notice of Verified Status”, please refer to the State of Connecticut SN 2012(2) for further information. Unverified contractors will be subject to an additional 5% withholding per State of Connecticut. INVOICES: Invoices are due on the 25" of each month by 5 pm. Application should cover construction scope completed thru the 25" of the month (not the end of the month.) Email all construction invoices to: ConstrInvoices@bltoffice.com. All contracts over $25,000 MUST USE the AIA G702/G703 with the line items matching the approved schedule of values included with the contract. Not applicable to Architects and Engineers. ° All billing must itemize labor and materials. ° For CT sales tax requirements, all requisitions must either itemize the amount of tax charged for material and/or labor or include the statement “All Applicable CT Sales & Use Tax Included”. If you are unable to include this statement on the G702/G703, a separate invoice must accompany your requisition meeting the same requirements. PAYMENTS: Payment will be on or close to the 15" of the following month. Accounting will email your waiver when checks are ready. Please read and follow directions provided in the email. BLT policy regarding change orders: ° The policy is simple — no additional work is to be performed or materials supplied without the approval of ownership and the issuance of a Change Order by our Accounting Department. Field personnel are not authorized to approve additional work or materials. If any additional work is performed or materials supplied without an approved Change Order from BLT Accounting Dept., you will not be paid. If you have any additional scope which you believe would require a change to your contract, please send the request to Estimating & Purchasing. BLT mailing address: P.O. Box 110295, STAMFORD, CT 06911-0295 TRADE CONTRACT This TRADE CONTRACT is between Owner (as hereinafter defined) and Trade Contractor (as hereinafter defined). The General Conditions and Schedules attached hereto are integral to and a part of this TRADE CONTRACT as if fully set forth herein. For the purposes of this TRADE CONTRACT, the following definitions shall apply: “Owner” 1 Elmeroft Road Suite 500 Stamford, CT 66902 “Trade Contractor”: ee White Plains, NY 10603 “Company”: 1 Elmcroft Road Suite 500 Stamford, CT 06902 “Project”: SE Rd tit il LY The following Schedules are attached hereto and incorporated herein by reference: Schedule “A’ — List of Contract Documents Schedule “B” — Scope of Work Schedule “C” — Contract Price and Payment Terms Schedule “D° — Form of Lien Waiver Schedule “E” — Form of Change Order Schedule “F° — Additional insureds Schedule “G" - Hot Work Permit Schedule “H” - Safety Violation Notice Schedule ‘I’ — Services Certificate for New Construction (CERT-104) IN WITNESS WHEREOF, the parties, by their executed this Trade Contract, on the Jo day of Len authorized representatives, have hereunto 20/0 . WITNESS: TRADE CONTRACTOR: New Era Mechanical Corp. Bi Notary Public, State of New York Ni No. 01GR6050659 Title: Le Eicta nile Qualified in Westchester Commission Expires Nov. 13, 20_2:2.— ESS: OWNER: 170 Glover Avenue LLC Binns rodSigal a a Lydiz odrig juez arl - Ku r Title: Autho ignatory L TRADE GENERAL CONDITIONS _] These General Conditions are an integral part of the Trade Contract to which they are attached and together they form a single document. 1Introduction. Owner intends to construct the Project according to the "Contract Documents" which Contract Documents include the plans and specifications, receipt of which by Trade Contractor is hereby acknowledged. Owner wishes to contract for certain trade work specified in the Contract Documents, and Trade Contractor wishes to perform that work at the prices and upon the terms and conditions hereinafter set forth. Owner has designated Company as its agent for construction management and supervision of performance of the Trade Contract. NOW, THEREFORE, in consideration of the mutual agreements contained herein, the parties agree as follows: 2. Scope of Work. Trade Contractor agrees to perform or provide, utilizing its professional skill and attention and in a timely manner, professional services in accordance with the following provisions (the "Services"): A. Trade Contractor agrees to perform certain work for Owner in accordance with the requirements outlined in this Trade Contract. The services to be performed are described on the attached scope as amended (the “Proposal”), incorporated herein by reference (Schedule “B”). B. All work shall be performed in accordance with the Trade General Conditions contained herein. C. Trade Contractor shall perform all work and shall furnish all supervision, labor, nails, plant, scaffolding, tools, equipment, supplies and all other things necessary for the construction and completion of the Work as detailed in Schedule “B”, and work incidental thereto (the "Work"), in strict accordance and full compliance with the terms of this Trade Contract and the Contract Documents, and to the satisfaction of Owner and Company. If any conflict arises between the terms of the Trade Contract and the other Contract Documents, such as a proposal attached by the Trade Contractor, this Trade Contract shall govern. D. Without limiting the provisions of the Proposal, Trade Contractor shall provide Owner and Company with whatever assistance is reasonably requested by Owner or Company in connection with Owner's efforts to obtain requisite approvals of the Project from any governmental authority. E. Without limiting the provisions of the Proposal, Trade Contractor shall attend meetings with the Owner or Company, Architect and their other Consultants on an as-needed basis during the design and construction of the Project and shail otherwise assist and cooperate with Owner and Company, Architect and their other Consultants in furthering the interests of Owner and the successful and timely completion of the Project. If Trade Contractor fails to attend any mandatory project meeting, Trade Contractor shall be charged a fee of One Thousand Dollars ($1,000.00). 3. ‘Trade Contract Price and Payment. Owner shall pay Trade Contractor the Services Fee, subject to additions and deductions, which is broken down as set forth on Schedule “C”, attached hereto. A. Trade Contractor will submit to Owner a breakdown of the total Services Fee Budget’, to be described in Schedule “C”. B. On, or prior to, the twenty-fifth day of each calendar month, in which the Trade Contractor has completed the work, the Trade Contractor shall submit to the Owner an application for payment, in a form satisfactory to the Owner, for the work completed through the twenty-fifth day of said month. The original invoice must be received in the office of Company, clo BLT Management, LLC, P.O. Box 110295, 1 Elmcroft Road, Suite 500, Stamford, CT 06911-0295 not later than 12:00 PM on the twenty-fifth. Invoices received after the twenty-fifth of the month will not become payable until the next payment cycle. The only exception to this policy shall be when the twenty- fifth of the month falls on a Sunday, in which case invoices will be accepted up until 12:00 PM on the twenty-sixth. C. Progress payments shall be payable to the Trade Contractor monthly based on the value of the work completed during the month covered by the application for payment, as determined by the Company, or based on payments as outlined in Schedule “C”. Applications for payment shall indicate the percentage of completion of each portion of the Work, as of the end of the period covered by the application for payment. The amount of each progress payment shall be computed as follows: +Take that portion of the Trade Contract Price properly allocated to the completed Work, as determined by multiplying the percentage completion of each portion of the Work, by the share of the Trade Contract Price allocated to that portion of the Work in the Schedule of Values. + Subtract retainage of 5%, and, + Subtract the aggregate of all previous payments made by the Owner. The net result shall be the amount of the progress payment. D. Owner shall pay to Trade Contractor the amount of said application which Owner approves on or about the fifteenth day of the month following the month covered by the application for payment. No progress payment made under this Trade Contract or entrance or use by Owner shall be considered an acceptance of the work in whole or in part. All material and work covered by progress payments shall become the property of Owner; but Trade Contractor shall bear the sole responsibility and liability for all work and materials upon which payments have been made until final acceptance thereof by Owner. E. Trade Contractor shall submit, with each application for a progress payment, evidence (satisfactory to Owner) that all its suppliers and subcontractors of any tier have been fully paid or 4 have signed mechanic's lien waivers in favor of Owner. Trade Contractor shall also submit a waiver of lien covering all Work in the form attached hereto as Schedule "D". F. Trade Contractor shail insure that all its subcontractors, employees and suppliers, at all times, are paid on time all amounts due in connection with the performance of the Trade Contract. Owner or Company shall have the right, at any time, to contact Trade Contractor's subcontractors and suppliers for the purpose of verifying that Trade Contractor's payment obligations are being met. If Owner believes Trade Contractor is not fulfilling its payment obligations, Owner may take any steps necessary to insure that progress payments are used to fulfill those payment obligations, including without limitation the right to pay subcontractors or suppliers directly on Trade Contractor's behalf or to withhold from subsequent progress payments a reasonable amount to protect Owner from any and all claims, loss or damage, including attorney's fees arising out of any claim or lien, until Trade Contractor submits evidence (satisfactory to Owner) that it has paid all previous amounts owed in connection with the performance of this Trade Contract. Trade Contractor shall also immediately reimburse Owner for any amounts paid by Owner, including costs and attorney's fees, in connection with this Trade Contract caused by Trade Contractor's failure to make payments as provided in this Paragraph. G. Owner shall not make final payment until Trade Contractor's Work has been accepted by Owner, satisfactory proof of payment of all amounts owed by Trade Contractor in connection with this Trade Contract has been provided, (including lien waivers as provided in Paragraph 13.b) and the Work completed. The acceptance of final payment shall constitute a waiver of all claims by Trade Contractor except those previously made in writing and identified by Trade Contractor as unsettled at the time the application for final payment is submitted. H. If it reasonably appears that the Services Fee, as defined in Schedule “C”, may exceed the Services Fee Budget, as defined in Schedule “C”, Trade Contractor shall immediately deliver to Company notice thereof. Company shall not be responsible for any Services Fee in excess of the Services Fee Budget unless Company provides, in writing, to Trade Contractor prior authorization for such increase in the Services Fee Budget in the form of Change Order annexed hereto as Schedule “E”. |. Trade Contractor will provide detailed billing records to support each invoice, including the name of the staff member who performed the work, the time work commenced and was completed at each location and total hours. To the extend Trade Contractor is working on multiple projects at the Glover Avenue location, Trade Contractor will aggregate the daily hours for each staff member at all sites in calculating the amounts to be billed. By way of example, if the staff member works on job A for 6 hours and job B for 5 hours, the total hours to be billed will be 11 hours, not two full days as stated in the proposal. The 11 hours worked will equate to one full day and one-half day based on minimums in the proposal. 4. Administration of the Trade Contract. A. Company will provide the general administration for the Project. B. Company shall have the responsibility to supervise and coordinate the work of all trade contractors. C. Company shall prepare and update all Construction Schedules and shall direct the work with respect to such schedules. D. Company shall have the authority to reject work which does not conform to the Contract Documents and to require any special inspection and testing in accordance with Paragraph 4. E. Company may issue change orders to Trade Contractor in accordance with Paragraph 10. F. Company, along with Architect, will conduct inspections to determine the dates of substantial completion and final completion, and will receive and review written warranties and related Documents required by the Trade Contract and assembled by Trade Contractor. G. The Trade Contractor shall not create any third-party beneficiaries. 5. Trade Contractor's Investigations and Representations. Trade Contractor represents that it is fully qualified to perform this Trade Contract and acknowledges that, prior to the execution of this Trade Contract, it has (a) by its own independent investigation ascertained (i) the feasibility of performing the Work required by this Trade Contract within the Services Fee Budget, (ji) the conditions involved in performing the Work, and (iii) the obligations of this Trade Contract and the Contract Documents; and (b) verified all information furnished by Owner or Company or others satisfying itself as to the correctness and accuracy of that information; and (c) complied with all required state and Iccal filings regarding the right to do business in the municipality where the Project is located. 6. Trade Contractor's Liability. A. Trade Contractor hereby assumes the entire responsibility and liability for all work, supervision, labor and materials provided hereunder, whether or not erected in place, and for all plant, scaffolding, tools, equipment, supplies and other things provided by Trade Contractor until final acceptance of the Work by Owner. In the event of any loss, damage or destruction thereof from any cause, Trade Contractor shall be liable therefore, and shall repair, rebuild and make good said loss, damage or destruction at Trade Contractor's expense. B. Trade Contractor shall be liable to Owner for all costs Owner incurs as a result of Trade Contractor's failure to perform this Trade Contract in accordance with its terms. Trade Contractor's failure to perform shall also include the failure of its suppliers and/or subcontractors of any tier to perform. Trade Contractor's liability shall include, but not be limited to (1) damages and other delay costs; (2) increased Project costs, such as increased performance costs resulting from Trade Contractor caused delays or improper Trade Contractor work; (3) warranty and rework cost; (4) liability to third parties; and (5) attorney's fees and related costs. C. Trade Contractor shall indemnify defend and hold harmless Owner and Company, including its affiliates, parents and subsidiaries defined as Additional Insureds (Schedule “F”), and all of their agents and employees, from and against all claims, damages, loss and expense, including, but not limited to attorney's fees, arising out of or resulting from the performance of Trade Contractor's work attributable to bodily injury, sickness, disease or death, or to injury to destruction of tangible property, including the loss of use resulting there from, to the extent caused in whole or in any part by any negligent act or omission of Trade Contractor or anyone 6 directly or indirectly employed by Trade Contractor or anyone for whose acts Trade Contractor may be liable, regardless of whether it is caused in part by a party indemnified hereunder. Without limiting the foregoing, said indemnification and hold harmless shall also specifically extend to any claim made against Owner or Company due to lapse of Trade Contractor's required insurance or any permit or other filing required to be made by Trade Contractor in order to perform the Work. D. In the event that Trade Contractor or any of its agents, employees, suppliers, subcontractors or lower tier subcontractors utilize any machinery, equipment, tools, scaffolding, hoists, lifts or similar items belonging to or under the control of Company, Trade Contractor shall be liable to Company for any loss or damage (including loss due to personal injury or death) which may arise from such use, except where such loss or damage shall be due solely to the negligence of Company's employees operating Company owned or leased equipment. E. Owner is hereby given the right to withhold amounts otherwise due under this Trade Contract or under any other contractual arrangement between the parties or between Owner's affiliates and Trade Contractor or any affiliate of Trade Contractor to cover any costs or liability Owner or its affiliates have incurred or may incur for which Trade Contractor or its affiliates may be responsible hereunder. F. Trade Contractor's assumption of liability is independent from, and not limited in any manner by, Trade Contractor's insurance coverage obtained pursuant to Paragraph 7, or otherwise. G. Trade Contractor agrees to accept liability for the cost of penalties incurred by Owner pursuant to governing Occupational Health & Safety acts that result from Trade Contractors acts or omissions. 7 Insurance. A. Trade Contractor shall obtain and maintain throughout the term of this Trade Contract, at its own expense, the insurance described below, and such other additional Commercial Liability, Workers Compensation, Automobile and Professional Liability Insurance as will adequately protect Trade Contractor from claims which may arise or result from Trade Contractor's performance or by anyone employed by it. Such Commercial Liability and Automobile Insurance shall include the parties on the list annexed hereto as additional insureds (collectively, the “Additional In: is’). Insurance Coverage shall be maintained until completion and final acceptance of the work as follows: 1. Insurance covering claims under workers compensation, disability benefit, and other similar employee benefit acts. Insurance also covering claims for damages because of bodily injury, occupational disease or sickness, or death of employees with the following limits: () Workers' Compensation. Workers' Compensation Insurance, as required by the laws of the state in which work is to be performed including Employers’ Liability (at a minimum limit of One Million Dollars ($1,000,000). (ii) Commercial General Liability. Commercial General Liability shall be written on a CG 0001 occurrence form or equivalent (claims made coverage not acceptable) with reasonable deductibles acceptable to Owner, providing minimum coverage limits (with defense costs outside of the limit for additional insureds) of $1,000,000 each occurrence, $1,000,000 personal & advertising injury, $2,000,000 Pproducts/completed operations aggregate, $2,000,000 general aggregate on a per project basis, or the limits carried, whichever is greater. Coverage shall include Bodily Injury, Property Damage, Personal injury, Blanket Contractual (specifically covering Contractor for liability, loss, cost and damage, including attomeys' fees, assumed by Contractor under the provisions of the Indemnity set forth in Paragraph |i below), Broad Form Property Damage, Independent Contractors, Products and Completed Operations (including coverage for the additional insureds, whether by endorsement or renewal of coverage, for 2 years after final completion of the Project or equal to the statute of limitations under the applicable state’s law, whichever is greater), and Explosion, Collapse and Underground Hazard (XCU) coverage for any subsurface activities. (iil) Commercial Automobile Liability. Commercial automobile insurance covering all owned, leased and non-owned vehicles used in connection with the work with limits of $1,000,000 combined single limit per accident for bodily injury and property damage which shall apply as primary and non-contributory insurance. The policy must include coverage for bodily injury, death and property damage arising out of contracting for, maintenance or use of any motorized vehicle on or off the site of the Project, and Contractual Liability coverage. If hauling of hazardous waste is part of the work, Automobile Liability Insurance with a $1,000,000 combined single limit per occurrence for bodily injury and property damage applicable to all hazardous waste hauling vehicles and including the MCS 90 endorsement and the {SO Form CA 99 48 (Pollution Liability Broadened Coverage for Business Automobile). (iv) Umbrella/Excess Liability. Umbrella/Excess liability insurance coverage excess of the Employers Liability, General Liability, and Auto Liability on a follow-form basis and meeting the same requirements as the underlying coverage with minimum limits of $5,000,000 each occurrence and in the aggregate, or the limits carried, whichever are greater. Umbrella/Excess insurance shall be specifically endorsed to provide that such limits are primary and non-contributory to any insurance of the Owner Parties and any other additional insured as defined below. ) Business Personal Property. Contractor shall also be required to purchase acceptable “All-Risk” property coverage or provide acceptable proof of self- insurance for all personal property, including any tools, machinery, equipment sheds, and materials or supplies, on a replacement cost basis, and such policy should grant a waiver of subrogation in favor of the Owner Parties. The Owner Parties and their agents take no responsibility for contractor's personal property. (vi) Professional Liability (if Required by Owner). Professional Liability covering errors and/or omissions in the performance of professional services in conjunction with the project. The coverage shall provide for a five-year discovery period after completion of the contract in which claims can be made. Trade Contractor shall maintain Professional Liability with a limit of not less than $5,000,000.00. (vii) VITO! menta |_ and overage (Rex quired for all Demo a nd eme Work or as OMEerwt ted wner) If this Trade Contract involves b the removal of asbestos, the removalreplacement of underground tanks or use of toxic chemicals and substances, the Contractor will be required to provide adequate coverage on a primary and non-contributory basis, in an amount not less than $5,000,000 on a per claim basis for sudden or accidental pollution including transportation and non-owned disposal facilities. This insurance must be maintained for a period of at least 6 years after completion of the work to be performed. 2. All Additional insured parties on the list annexed hereto shall be so named on all policies with the exception of Commercial Property, Workers Compensation, and Professional Liability. Such grant of coverage shall apply on a primary and non- contributing basis before any other Insurance or self-Insurance, including any deductible, maintained by, or provided to, said additional insureds, and shall remain in effect for the duration of the contract, including the Completed Operations Period (seven years from the date of execution of this Trade Contract). All policies shall be endorsed to Waive all Rights of Subrogation in favor of the list of Additional Insured Parties on the list annexed hereto. B. Before commencing work, Trade Contractor shall furnish a certificate, satisfactory to Owner and Company, naming Owner and Company and the Additional Insureds as additional insured, from each insurance company showing that the above insurance is in force, stating policy numbers, dates of expiration, and limits of liability there under, and further providing that the insurance will not be canceled or changed until the expiration of at least thirty (30) days after written notice of such cancellation or change has been received by Owner and Company. C. Trade Contractor shall also furnish to Owner and Company, with the “Schedule Page” or “Endorsement Page” from its Worker's Compensation Policy as evidence of Trade Contractor's Worker's Compensation coverage in the State of Connecticut. Trade Contractor shall attach either the “Schedule Page” or Endorsement Page” to its certificate(s) of insurance and submit this documentation to Owner and Company simultaneously before commencing work. D. Trade Contractor shall provide in any subcontracts pertaining to the Work which it might enter into that the subcontractors obtain the foregoing insurance coverage and Worker's Compensation coverage in the State of Connecticut. Trade Contractor shall also provide Owner and Company with certificates of insurance and the “Schedule” or “Endorsement “Page from the Worker's Compensation Policies of any subcontractors Trade Contractor employs to perform work on the Project, in a form consistent with the Paragraph 7. Trade Contractor shall guarantee that its subcontractors maintain the required insurance and Worker's Compensation coverage in the State of Connecticut until their work is accepted by Owner. E. Coverage Requirements. All insurance policies maintained by the Contractor and subcontractors, if any, pursuant to this Trade Contract shall name the Owner and Owner Parties as Additional Insureds. Further, the amount of insurance available to Contractor or the additional insured shall be for the full amount of the loss up to policy limits of liability and shall not be 9 limited to any minimum requirements stated in the Contract Documents. The Additional Insured Endorsement shall be on Form CG 20 10 04/13, or CG 20 37 10/01 plus CG 20 37 04/13, or equivalent, and shall include ongoing and completed operations coverage, without any additional restrictions. Insurance policies shall not contain any coverage exclusions for injury to employees, bodily injury, height limitations. Contractor's insurance policies shall contain an endorsement stating (i) that such insurance shall be primary to any insurance maintained by Owner Parties, whether required by contract or not, as to any and all claims, losses or liabilities arising directly or indirectly from the Contractor's operations and any insurance maintained by Owner Parties shall be non-contributory with the insurance provided hereunder, and (ii) that an act or omission of one of the Named Insureds shall not reduce or void coverage to the other named Insureds and shall afford coverage for all claims based on acts, omissions, injury and damage, which claims occurred or arose (or the onset of which occurred or arose) in whole or in part during the policy period. Contractor shall be responsible, at no additional cost to Owner Parties for the payment of any deductibles, chargebacks, or self-insured retention of any amount in connection with the insurance coverages required by this Trade Contract. F. Miscellaneous. The coverage obtained pursuant to the provisions of the insurance clause shall include insurance against damage from design warranties given by Contractor's subcontractors and material men, if any. All insurance described under the insurance clause to be carried by Contractor will be maintained by Contractor at its expense with insurance carriers licensed and approved to do business in Connecticut having a rating of not less than "A" and a financial rating of not less than "VIII" in the most current AM Best's Key Rating Guide. The insurance coverages maintained by Contractor shall not limit any of Contractor's indemnity obligations or other liabilities under this Trade Contract. This obligation shall survive any termination of the Trade Contract. G. Subcontractor Insurance and Indemnification. Contractor shall not allow any consultant or subcontractor to commence any work until Contractor obtains from such consultant or subcontractor the exact insurance required to be carried by Contractor under the insurance clause including, but not limited to: (i) the type and amount of coverage and evidence thereof required by Section 7(A)(1), (ii) a waiver of subrogation in favor of Contractor and Owner Parties, (iii) the additional insured endorsement required in Section 7(E), (iv) notice of cancellation in accordance with Section 7(B), and (v) insurance with carriers meeting the standards of Paragraph 5. Contractor shall also obtain from any such consultant or subcontractor an indemnification in form and substance identical to the indemnity as contained in this Rider, with the modification that such indemnity shail be from the consultant or subcontractor for the benefit of the Owner and Owner Parties. 8. Prot : Time of Performance. A. Upon award of the Trade Contract, Trade Contractor shall submit to Company an estimated progress schedule for the Work. The progress schedule shall provide for the expeditious and practicable execution of the Work. This schedule shall indicate the dates for the starting and completion of the various stages of construction, shall be revised as required by the conditions of the Work, and shall be subject to Owner's approval. Trade Contractor shall provide 10 Company with any requested scheduling information for Trade Contractor's Work. Once approved by Company, the progress schedule and all subsequent changes shall bind the Trade Contractor. TIME BEING OF THE ESSENCE. B. Trade Contractor recognizes that Owner or Company may amend the progress schedule and agrees to comply with such amendments subject to a reservation of right arising hereunder. C. Trade Contractor will proceed with the Work promptly and diligently in accordance with the progress schedule as reasonably amended from time to time, and TIME IS OF THE ESSENCE with respect to Trade Contractor's performance. If any scheduling amendment results in acceleration of Trade Contractor's performance, Trade Contractor shall be entitled to additional compensation for complying with said amendment in the form of any actual additional wages or premiums paid by Trade Contractor, at rates approved by the Owner, plus applicable levies, fringes and benefits; provided, Trade Contractor shall only be entitled to additional compensation if Trade Contractor is not in default under any terms of the Trade Contract. If, however, the progress of the Work or if the Project be delayed by any fault or neglect of the Trade Contractor, it shall work such overtime as may be necessary to make up for all time lost by such neglect or default. If Trade Contractor refuses to work such overtime or supply additional labor to recover such loss caused by its fault or negligence, then Owner shall have the right to supplement Trade Contractor's forces with whatever additional labor it deems necessary at Trade Contractor's cost and to withhold the cost of such additional labor from any sums due or to become due to Trade Contractor. D. if Trade Contractor is delayed in the performance of its work for any reason including acts or omissions of Owner or Company or Architect, but excluding its own negligence or failure to diligently pursue the Work or the Owner's or Company's exercise of its rights under Paragraph 15, Trade Contractor shall be entitled to an extension of time for the performance of its work. Trade Contractor hereby recognizes that such time extension, shall be its sole remedy in the event of any such delays as described in this paragraph and hereby waives any right to claim additional compensation as a result of such delays. 9. Supervision and Construction Procedures. Trade Contractor shall supervise and direct its Work using its best skill and attention. Trade Contractor shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Trade Contract subject to the overall coordination of the Company. 10. Changes and Claims. A. Owner or Company may, at any time, unilaterally or by agreement with Trade Contractor, and without notice to its surety, if any, make changes in the Wor