Preview
FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023
EXHIBIT O
FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023
AMENDED AND RESTATED CONSTRUCTION MANAGEMENT AGREEMENT
This AMENDED AND RESTATED CONSTRUCTION MANAGEMENT
AGREEMENT (this “Agreement”) dated as of April 22, 2019 by and between 9 DeKalb Fee Owner
LLC, having an office c/o JDS Development Group at 104 Fifth Avenue, 9th Floor, New York, New
York 10011 (the “Owner”) and JDS Construction Group LLC, having an office at 104 Fifth Avenue,
9th Floor, New York, NY 10011 (the “Construction Manager”).
W I T N E S S E T H:
WHEREAS, Owner intends to develop and construct a new mixed use building substantially
in accordance with the contract documents (as hereinafter defined) (the “Project”); on a site located
at 9 DeKalb Avenue and 340 Flatbush Avenue Extension, Brooklyn, NY 11201 (Block 149, Lots 75,
100) (hereinafter, the Project “Site”); and
WHEREAS, Owner wishes to retain Construction Manager to provide certain pre-
construction management services as described herein to assist in development of the Project and
thereafter; to cause the construction of certain Work required for the Project on a Guaranteed
Maximum Price (“GMP”) basis, as hereafter defined, as an at-risk construction manager using trade
contractors (“Trade Contractors”) as hereinafter provided; and
WHEREAS, Construction Manager, along with Trade Contractors retained by Construction
Manager and in isolated cases by Owner, and as hereafter set forth, shall perform all of the required
Work, which is comprised of the completed construction required by the Contract Documents, and
includes all labor, materials, tools, equipment, temporary utilities, supervision and management
necessary to complete the construction of the Project in accordance with the Contract Documents
(the “Work”); and
WHEREAS, Construction Manager is willing to act in such capacity and cause to be
provided through Trade Contractors or its own forces, as hereafter provided, all such labor, material,
equipment, tools, equipment, temporary utilities, supervision and management services required for
the timely, lien free completion of the Project and otherwise perform its obligations hereunder; and
WHEREAS, Owner has retained SHoP Architects PC as Architect for the Project
(“Architect”) and also has engaged either through the Architect or directly, structural, mechanical,
electrical and other engineers, inspectors, agencies and consultants normally and customarily
retained by architects or owners to design the elements or inspect the construction of the Project
(hereafter collectively, inclusive of the Architect, the “Design Team”);
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EXHIBIT
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NOW, THEREFORE, in consideration of the promises and the mutual covenants contained
herein and the sum of one ($1.00) dollar by each party in hand paid to the other, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto intending to be legally bound, agree as follows:
ARTICLE I
(Contract Documents)
1.1 Contract Documents. The “Contract Documents” consist of: (i) this
Agreement, together with all Exhibits; (ii) all addenda issued prior to, and all duly executed
amendments (including Change Orders, as hereafter defined) and modifications (in both cases with
attachments) issued after, execution of this Agreement; (iii) the Drawings; (iv) the Specifications; (v)
approved shop drawings; and (vi) the Guaranteed Maximum Price document including all
attachments thereto. All of the foregoing are an integral part of this Agreement and are as if attached
hereto. In resolving any conflicts among the Contract Documents, the above listed order of priority
shall control, with item (vi) having the overriding priority, except to the extent subsequently altered
by a Change Order or modification; and within each category, the newer Contract Documents shall
be given precedence. The Contract Documents expressly do not include documents such as the
advertisement or invitation to bid, the instructions to bidders, sample forms, the Construction
Manager's bid or portions of addenda relating to any of these or any other documents.
1.2 State of Contract Documents. Construction Manager acknowledges that as of
the execution of this Agreement, the Drawings and Specifications are not complete as of their
respective dates indicated and will be subject to revisions, refinements, and clarifications, as well as
the issuance of additional Drawings, Specifications and documents in order to fully and completely
reflect all components and details of the Project.
1.3 Intent of Contract Documents. Construction Manager acknowledges that it
has been and remains fully involved during the pre-construction phase in the review and preparation
of the Contract Documents, and is fully participating in and endeavoring to assure the completeness
of the scope of Work as contained therein. The intent of the Contract Documents is to include all
items necessary for the proper and entire execution and completion of the Work (as hereafter
defined). The Contract Documents are complementary, and what is required by one shall be as if
required by all provided, however, that performance by Construction Manager shall be required only
to the extent consistent with the Contract Documents and reasonably inferable from them, or as being
necessary to produce the indicated results.
1.4 Conditions of the Work. Construction Manager represents that it has visited
the Site of the Work, become familiar with local conditions, including the labor market, under which
the Work is to be performed and correlated personal observations with the requirements of the
Contract Documents.
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1.5 Ownership of Drawings and Specifications. All Drawings, Specifications and
copies thereof shall be furnished by Owner, are solely for Construction Manager’s reference with
respect to the Project and shall be used for no other or different purpose. Construction Manager has
no ownership interest in the Drawings and Specifications. With the exception of one archival which
may be retained by Construction Manager, all Drawings and Specifications shall be suitably
accounted for to Owner at completion of the Project. Submission or distribution to meet official
regulatory requirements or for other purposes in connection with financing of the Project is not to be
construed as publication in derogation of the respective ownership interests of Architect, Design
Team members and Owner in the Drawings and Specifications.
END OF SECTION.
ARTICLE II
(Scope of the Work)
2.1 The Work. Construction Manager shall cause to be performed and provided
through Trade Contractors, or its own forces with respect to general conditions work (as hereinafter
provided), all labor, materials, equipment, tools and services (inclusive of hauling and disposing of
all known contaminated (i.e. non-hazardous) soils designated by Owner or its consultants but
exclusive of PCB, Hazardous Waste as defined in Section 4.8 or asbestos encapsulation, removal,
transportation, hauling or disposal which is to be performed by and under the exclusive direction,
supervision and control of others, but in all cases tracked and coordinated by Construction Manager)
required for the complete construction of the Project in accordance with the terms of the Contract
Documents (the “Work”). All materials and equipment furnished or installed into the Project by
Construction Manager shall be new unless otherwise specified in the Contract Documents. Nothing
contained in this Agreement shall be deemed to authorize or require the Construction Manager to
perform with its own forces any act which would constitute the rendering of professional services,
such as the practice of architecture, engineering or laboratory testing.
2.2 Construction Manager’s Objectives. Construction Manager recognizes the
necessity of a close and collaborative working relationship with Owner and agrees: to furnish the
skill and judgment of its organization in the performance of this Agreement; to provide Construction
Manager's knowledge, insight, ideas, experience and abilities relating to the planning of the
construction of the Project; to furnish efficient business administration and superintendence; and to
use diligent efforts to arrange for an adequate supply of workmen, materials and equipment in order
to complete the Work in an expeditious and economical manner consistent with the interests and
objectives of Owner, as made known to Construction Manager. Construction Manager understands
that it is the Owner's intent to construct the Project at a competitive cost and in the most expeditious
manner consistent with budgetary considerations.
END OF SECTION.
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ARTICLE III
(Construction Manager's Status and Duties)
3.1 Relationship of Trust and Confidence. Construction Manager accepts the
relationship of trust and confidence established between it and Owner by this Agreement. The
Construction Manager shall furnish efficient business administration, coordination, and management
to cause the Work to be performed in the most expeditious and economical manner consistent with
the interests of safety and the Owner. The Construction Manager shall cooperate with the Architect
and Owner in furthering the interests of the Owner and the Project.
3.2 Trade Contracting. With the exception of general conditions, protections,
cleaning, rubbish removal and other portions of the Work customarily performed by Construction
Manager’s own forces, the Work shall be performed and materials and equipment supplied under
contracts (“Contracts”) with trade contractors, suppliers or vendors (“Trade Contractors”).
Construction Manager shall be responsible for any acts, errors or omissions arising out of all
Contracts entered into between Construction Manager and Trade Contractors (and any contracts
between Trade Contractors and lower tier Trade Contractors) for Work on the Project. Construction
Manager shall use its standard form trade contract in contracting out the Work to Trade Contractors
pursuant to this Agreement. Copies of the standard form trade contract are attached hereto as
Exhibit “A”.
3.2.1 If this Agreement is terminated by Owner pursuant to Article XIV,
then Contract, at the option of Owner in its sole discretion, shall be assigned by Construction
Manager to Owner, or to such other entity as Owner may direct. In such event, Owner or its
designees as of the date of assignment shall assume all of Construction Manager’s post-assignment
obligations thereunder; provided, however, that nothing contained herein shall be deemed to release
Construction Manager from liability to such Trade Contractor, or to Owner or Owner’s designees,
with respect to claims arising from events occurring prior to the effective date of such assignment.
3.3 Construction Manager’s Pre-construction Services. Construction Manager, as
part of the Work, shall:
(a) consult and meet with Owner and Design Team with respect to the Work and
development of the Drawings and Specifications for the Project, including, without limitation,
geotechnical considerations and related Site work, all building systems (e.g. MEPs, structural,
utilities and vertical transportation) and all governmental or other permits and approvals required in
connection with the Project;
(b) meet and consult with Owner and Design Team and make recommendations to
Owner with respect to the availability and cost of materials (including recommending to Owner the
advance ordering / purchase of long lead time items and ordering such long lead time items),
equipment and labor; the selection of materials; the selection of building systems and equipment,
costs of construction (including the use of and estimates of unit pricing, and costs of alternative
designs or materials), construction feasibility and alternative methods of construction, necessary
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temporary and support facilities; Site logistics (which shall be planned in detail prior to submission
to governmental agencies having jurisdiction) and implemented expressly to facilitate all Work at the
Project Site proceeding simultaneously and continuously, including without limitation the work with
respect to access points, vertical transportation, protection and Site storage), and utilities and
prevalent construction insurance programs presently utilized in the industry;
(c) provide and at appropriate intervals at Owner’s request refine Project budget
estimates for the Work, including monthly cost projections or forecasts once the major requirements
of the Project have been identified;
(d) provide, update as permitted and maintain a Construction Schedule for the
Work (indicating all construction activities);
(e) review the Contract Documents as they are being prepared by Architect for
the purpose of evaluating same and using its best efforts in making recommendations to Owner and
Architect with respect to the following:
(i) the availability of labor, materials and supplies;
(ii) elimination of possible conflicts and/or overlapping jurisdictions
among the various trades or overlapping responsibilities among Trade
Contractors;
(iii) (x) obvious conflicts and omissions and (y) variations from
customary construction practices and methods as discovered by
Construction Manager, diligent efforts having been made, which, in
the opinion of Construction Manager, may cause difficulties or
occasional delay in the performance of the Work, it being expressly
understood, however, that by review of the Contract Documents
under this Section 3.3, Construction Manager does not thereby
assume responsibility for design errors and omissions;
(iv) discrepancies and deficiencies observed by Construction Manager in
and among the Contract Documents, or between the Contract
Documents and existing conditions at the Project;
(v) conduct of construction operations utilizing good construction
practices;
(vi) costs of labor, materials, supplies, tools and equipment to be used in
the performance of the Work;
(vii) unit prices and alternates;
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(viii) required adjoining property owner protection, and temporary and
Project support requirements;
(ix) construction detailing; and
(x) construction economies through alternative methods, materials, or
concepts, consistent with Owner's requirements and sound
construction practices.
(f) consistent with its obligations hereunder, the Construction Manager shall
investigate and become familiar with all existing field conditions revealed by information furnished
by Owner pursuant to Section 4.2 below, or that are apparent from a visual inspection of the Project
Site, shall compare them with what is provided in the Contract Documents and shall report to the
Owner any visible or otherwise known inconsistencies, errors or omissions in connection therewith.
3.4 Construction Manager’s Construction Services. Beginning with the earlier of:
(i) initiation of excavation work or (ii) initiation of any on-Site construction under Construction
Manager’s management, and thereafter until completion of the Work, Construction Manager shall, as
part of the Work:
(a) procure estimates at Owner’s request from Trade Contractors proposed
for each of the required elements of the Work. Construction Manager shall review, analyze and level
each bid and conduct negotiations with bidders to obtain the most favorable price and terms
consistent with Owner's goals of economy; review with Owner Construction Manager’s
recommendations with regard to awarding Contracts for the Work.
(b) supervise the performance of the Work by Trade Contractors and
coordinate and schedule the Work of all Trade Contractors on the Project. Cooperate in the
monitoring of the Work by Architect and other Design Team members in order to assure that Trade
Contractors complete their respective portions of the Work in accordance with the Contract
Documents and all legal requirements.
(b1) Construction Manager shall prepare and maintain, on a current
basis, an on-site record-keeping system, including, but not limited to: (i) records of all changes in the
Work necessitated by Change Orders; (ii) Construction Schedules; (iii) submittal log; and (iv)
daily/weekly reports, which shall record manpower breakdowns on a Trade Contractor-by-Trade
Contractor basis with a description of the Work being performed each day by each Trade Contractor,
accidents, weather conditions, and other Work-related information.
(b2) continuously monitor the condition of all adjoining properties,
and any other properties expressly required to be monitored by any authority having jurisdiction, and
verify that all required and prudent safety precautions and protections are maintained in place and in
a condition appropriate for their purpose. Construction Manager shall assist Owner in working with,
and coordinating the activities of, all utility providers and Trade Contractors so that all required
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access to and installations at the Project Site are expedited and facilitated in a timely manner. Owner
shall be responsible for securing any access and/or licenses required to lawfully enter upon any
neighboring property for purposes of performing the Work and protecting neighboring properties.
(c) Construction Manager shall review and approve, subject to Owner’s
approval, a detailed trade payment breakdown for each Trade Contractor of all tiers prior to the first
requisition received from that Trade Contractor. Construction Manager also shall review the Work
performed by each Trade Contractor to determine whether the Work has progressed to the point
indicated on its Application for Payment and that it is being performed in strict accordance with the
Contract Documents, and guard Owner against defects and deficiencies in the Work, advising Owner
upon discovery of any uncorrected defect or deficiency. Construction Manager shall require any
Trade Contractor to stop Work or any portion thereof and require special inspection or testing of any
Work determined by Construction Manager, or Owner not to be in accordance with the Contract
Documents whether or not such Work is then fabricated, installed or completed. If, at any time
before acceptance of the Work, Owner, or Construction Manager has reasonable cause to believe that
any part of the Work is not in accordance with the Contract Documents, Owner may direct
Construction Manager to require the responsible Trade Contractor to remove or uncover, at Trade
Contractor’s own cost and expense, any portion of the completed Work. If defective, Construction
Manager shall require the Trade Contractor, at its own cost and expense and after correcting the
deficiency within five (5) days of notice thereof, or if such defect cannot be cured within five (5)
days, then in any event within thirty (30) days, to restore or cause to be restored the Work to the
standard required by the Contract Documents, as directed by Owner. If such Work is not defective,
Owner shall bear the cost of removing, uncovering and replacement to the standard required by the
Change Order issued in connection therewith. Notwithstanding the foregoing, to the extent that any
Work shall be covered contrary to the requirements of a Contract Document or prior written
direction of Owner, Architect or Construction Manager, the responsible Trade Contractor shall bear
all costs in connection with removal, uncovering and replacement regardless of whether the Work in
fact complies with Contract Documents’ requirements.
(c1) advise Owner if Construction Manager has good reason to
believe that any Trade Contractor may be incapable of completing its work in a timely manner and
promptly consult in good faith with Owner whenever Owner expresses a concern that any Trade
Contractor(s) is performing in a manner that puts the Project at risk and in both cases, discuss with
the Owner what actions, both current and contingent, Construction Manager intends to take to
address Owner’s concerns and maintain required Project progress and cost.
(d) perform general conditions, cleaning and similar services normally
performed by Construction Manager. Closely supervise all concrete and steel erection operations in
terms of avoiding spillage from concrete buckets, damage from crane swings and materials so as to
avoid injury and damage to all surrounding areas, persons and property. Notwithstanding the
foregoing, to the extent any such spillage occurs, Construction Manager shall take immediate
measures to effect a full clean-up.
(e) arrange for and monitor the early procurement and expediting of long-
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lead materials and equipment required in connection with the Work, and advise Owner with respect
to potential delays in their purchase and delivery and, in the case of delays in any Work directly
contracted by Owner, impact on the Construction Schedule.
(f) schedule and conduct job meetings with Owner and Design Team
when necessary, and when otherwise reasonably required by Owner, and coordinate meetings with
appropriate parties as necessary.
(g) with the exception of controlled inspections, which shall be the
responsibility of Owner; identify and cause to have made by others such tests as shall be required,
necessary or appropriate.
(h) obtain all necessary licenses and permits, except if and to the extent
that the same, under applicable law or practice, must be or are normally obtained by Owner,
Architect or Trade Contractors and, in such event, cooperate and coordinate with Owner, Architect,
or Trade Contractors, as the case may be, in obtaining and maintaining in good standing such
licenses and permits. Notwithstanding the foregoing, Owner shall secure and pay for the building
permit and any licenses required from adjoining property owners.
(i) keep for Owner’s review and copying such accounts and cost records,
in addition to those specified in Article XVIII, as customarily are maintained by Construction
Manager on similar projects and in the construction industry generally, including cost records
required in connection with time and material and unit price Change Order work.
(j) if required by local ordinance, provide a dedicated, full-time Site
Safety
Manager (which may be provided through a third party, in which event such
costs shall be included as part of the Fees described in Article VIII) through the complete enclosure
of the building(s) at the Project, and thereafter with Owner’s approval may scale back from full-time
to part time, but in any event shall be on Site as is reasonably necessary to oversee the Work. The
Site Safety Manager shall make available to all Trade Contractors, Construction Manager’s “Site
Safety Program and Manual”, compliance with which shall be mandatory, and continually review (in
the nature of continuous surveys of the Site whenever construction activity is taking place) the safety
programs of Trade Contractors and make appropriate recommendations to ensure the Project safety
program is implemented and adhered to. Construction Manager routinely shall inspect the Work to
check safety precautions or programs for the Project, and shall ensure that its Site Safety Manager is
certified, as required by the New York City Department of Buildings and applicable law. The
performance of these services by Construction Manager shall be in addition to the responsibility of
Trade Contractors for safety of persons or property and for compliance with all federal, state and
local safety, health and environmental statutes, rules, regulations and orders and all other
requirements of law, including, without limitation, the Construction Safety Act of 1969 and the
Williams-Steiger Occupation Safety and Health Act, as the same from time to time may be amended.
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(k) provide reasonable assistance to and cooperation with Owner, in any
legal actions or proceedings that may arise out of or relate to the Work (other than those arising from
disputes between the Owner and Construction Manager), including appearances, for three (3) years
after issuance of the final temporary certificate of occupancy for the Project in connection with such
actions or proceedings.
(l) with respect to Construction Manager’s one (1) year warranty and
guarantee of Work only; secure, verify that the length and commencement are as specified herein and
assist the Owner, for one (1) year after the date of Substantial Completion of the Work, in obtaining
the performance by Trade Contractors of all warranty and guarantee obligations and the correction of
incomplete and/or deficient Work.
(m) assess the adequacy of all shop drawings, samples and/or submittals
from Trade Contractors for transmittal to Design Team member(s) for review and when adequate for
that purpose; establish a shop drawing, sample and submittals’ submission schedule for the flow of
required information among Trade Contractors and Design Team members to assure the orderly and
timely exchange and approval of required information (the submission schedule shall allow the
Architect and Design Team member(s), absent unusual circumstances, ten (10) days after receipt of
shop drawings, samples and/or submittals from Construction Manager to review and reject or
approve same); coordinate (and monitor through the shop drawing, sample and submittals’
submission schedule) the submission by Trade Contractors and approval by Architect and other
consultants of all required shop drawings, samples, catalog cuts and other submissions; maintain a
log of all such submissions; enforce Trade Contractor’s shop drawing submission obligations; advise
Owner periodically as to the status of such submissions; advise Owner and Architect of any errors in
such submissions that are discovered by Construction Manager (without assuming Architect’s
responsibility for reviewing and approving such submissions); and coordinate the various disciplines
after the Architect's approval of the respective shop drawings and before action.
(n) at all times cause the Site to be kept free from rodents, vermin and
other pests and the accumulation of waste material or rubbish caused by the Work. Upon Substantial
Completion of the Project, Construction Manager shall cause all remaining waste material and
rubbish to be removed from and about the Site as well as, other than to the extent required for then
remaining punch list work, all tools, construction equipment, machinery and surplus materials.
Construction Manager shall not knowingly permit the introduction, installation or incorporation into
the Project of any Hazardous Material (as defined in Section 4.8), and promptly shall advise Owner
if it believes or becomes aware that the Contract Documents require the incorporation of any such
material.
(o) review requests for changes by Owner or Architect, submit
recommendations to Owner regarding same, make independent recommendations regarding changes
to the Work to enable expeditious and economical completion of the Work, participate in negotiating
Trade Contractor change orders, prepare and process written Change Orders and transmit same to
Owner. All “Change Orders” which cause an increase in the Guaranteed Maximum Price or an
extension of the Construction Schedule first shall be sent for review by Owner, and shall require
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Owner's prior written approval, it being agreed that minor changes with an anticipated cost of less
than such amount as provided in the Construction Loan or such other loan entered into by Owner
from time to time may be authorized by Construction Manager field orders without Owner's prior
consent.
(p) prepare and submit monthly Applications for Payment in accordance
with Article XI and the Contract Documents.
(q) if requested, cooperate with Owner in the selection and retention of
professionals and other consultants in connection with the Work.
(r) consult with Owner and Architect in connection with any
interpretations of the Contract Documents; promptly give notice to Owner and Architect of any
dispute or claim which may arise during construction of the Project, and participate in good faith in
the resolution of any such dispute or claim.
(s) subject to the provisions of Section 11.10, make recommendations to
Owner regarding the advisability of pre-purchasing materials and equipment to be incorporated into
the Work, facilitate arrangements for on and off-Site storage of the same, if approved in advance by
Owner (including such arrangements as Owner shall deem necessary or desirable for (i) access to
such materials for the purpose of verification, inspection and removal of the same, (ii) protecting
Owner's title to such materials, free and clear of all liens, encumbrances and rights of others, and (iii)
segregating, identifying, insuring and protecting same).
(t) consult with Owner in the preparation, inspection and completion of
punch lists, promptly undertake and continue the performance of punch list work, participate in
conducting inspections required to determine Substantial Completion of the Work and compliance
with punch lists, and participate in the final inspection of the Work.
(u) coordinate, cooperate and conduct with Owner's maintenance or
operational personnel during start-up and testing of utilities, equipment and all systems.
(v) cooperate and consult with Owner, Architect, their consultants and
engineers in closing-out each Trade Contractor and receive and transmit to Owner all required
guarantees, warranties, waivers and consents of surety or SDI carrier (if necessary), affidavits,
releases, certificates of compliance (if required), maintenance manuals, waivers of lien, as-built
Drawings, training session audio/video tapes, and other documents required by the Contract
Documents and the Contracts prior to final payment being made.
(w) maintain a complete set of Drawings, Specifications, Contracts,
purchase orders, shop drawings, and related documents at the Project Site office or at Construction
Manager's principal office.
(x) assure, coordinate and monitor enforcement of guarantees and
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warranties of Trade Contractors for a period of one (1) year from the date of Substantial Completion
of the Work.
(y) timely provide all required insurance, insurance certificates and
endorsements in accordance with the Contract Documents, and maintain required insurance coverage
throughout the duration of the Project, including the completed operations period.
(z) timely obtain all temporary certificates of occupancy, including the
coordination and conducting of all on-Site inspections by governing agencies having jurisdiction
over the Project; and coordinate and cooperate with Owner’s expeditor’s (as applicable) efforts to
secure a permanent certificate of occupancy and complete all required documents and filings.
(aa) immediately take such action as reasonably may be necessary in an
emergency to protect life and property, and notify Owner of such actions as soon as practicable.
Construction Manager shall be entitled to additional compensation, equitably negotiated between the
parties and/or an extension of time on account of such emergency, to the extent that there is a
demonstrable impact to the Construction Schedule such that the Project Substantial Completion Date
may be extended, and/or costs to perform expedited, out-of-sequence or overtime Work may be
approved, unless the emergency was caused by the negligent acts or omissions of Construction
Manager (or anyone else for whom Construction Manager is legally liable), in which case no
adjustments shall be made.
(ab) arrange for and maintain as required (i) extermination and other pest
control and elimination services during construction, (ii) Site security at all times, and (iii)
temporary utilities, in all cases until Substantial Completion of the Work, or as otherwise directed by
Owner.
3.5 Guaranties and Warranties. Notwithstanding anything to the contrary
contained in this Agreement:
(a) Construction Manager warrants and guarantees all Work performed
and materials and equipment furnished under this Agreement against defects in materials and
workmanship for a period of one (1) year from the date of Substantial Completion of the Work.
Construction Manager, promptly after receipt of written notice thereof, shall make good any
deficiencies in the Work or incomplete Work which may develop within periods for which affected
materials, equipment and workmanship are guaranteed.
(b) all warranties and extended repair/replacement obligations provided
under the Contract Documents shall be for the benefit of and enforceable by Owner and its
successors and assigns, and all warranties which extend for more than one (1) year shall be assigned
to Owner, who shall enforce those warranties after expiration of the one (1) year guaranty period.
(c) Construction Manager shall obtain and deliver to Owner any Contract
Document required specific warranties given by Trade Contractors providing labor, materials or
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equipment to the Project.
(d) all warranties and extended repair/replacement obligations provided
under the Contract Documents are in addition to and not in limitation of any other rights Owner may
have under the Contract Documents, including without limitation those arising out of a breach of
contract or as otherwise provided by law or equity. Nothing contained in this Section 3.5 shall be
construed to establish a period of limitation with respect to other obligations which the Construction
Manager might have under the Contract Documents. Establishment of the one-year guaranty period
as described herein relates only to the specific obligation of the Construction Manager to correct the
Work, and has no relationship to the time within which the obligation to comply with the Contract
Documents may be sought to be enforced, nor to the time within which proceedings may be
commenced to establish the Construction Manager’s liability with respect to the Construction
Manager’s obligations other than specifically to perform guaranty work.
(e) Construction Manager shall coordinate with its Trade Contractors and
as required by the Contract Documents to secure from Trade Contractors the most stringent
warranties available to them, and all other specific guarantees required by the Contract Documents.
All guarantees or warranties of equipment or materials furnished to the Construction Manager or
Trade Contractor by any manufacturer or supplier shall be deemed to run for the benefit of the
Owner and its designees.
(f) The one year construction warranty available to Owner from
Construction Manager pursuant to this Agreement is for the sole and exclusive benefit of Owner and
expressly excludes any third party beneficiaries (excepting the Lender), and Owner expressly agrees
that there shall be no assignment of this one year warranty, other than to the extent required by
Lender as permitted herein, without Construction Manager’s prior written approval, to be granted or
withheld in its sole discretion.
END OF SECTION.
ARTICLE IV
(Owner's Responsibilities)
4.1 Required Information. Owner with reasonable promptness shall provide all
information reasonably requested regarding its requirements for the Project.
4.2 Design Professionals and Consultants. Owner shall retain the Architect and,
either directly or through the Architect, all other professional and technical consultants required for
the design of, preparation of Drawings and Specifications for, and inspection of the Project. As
applicable, Owner also shall furnish all necessary surveys describing the physical characteristics,
subsurface conditions, soil reports, legal limitations, utility locations and a legal description of the
metes and bounds of the Site. Construction Manager shall be entitled to rely upon the accuracy and
completeness of the Contract Documents’ Drawings, Specifications, and of surveys and reports
FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023
prepared or made available by Owner's Architect, engineers and consultants.
4.3 Testing Services. Owner shall furnish such auditing and independent testing
services as in its reasonable judgment may be necessary for the Project, including controlled
inspections to the extent not provided by Trade Contractors.
4.4 Contract Document Deficiencies. Owner promptly shall notify Construction
Manager of any fault or defect in the Work, or non-compliance with the Contract Documents, of
which it becomes aware.
4.6 Approvals and Permits. As necessary, Owner shall secure and pay for
necessary governmental, quasi-governmental and other public agency approvals, easements, licenses,
assessments and charges required for the construction, use or occupancy of the permanent structures
or for permanent changes in existing facilities, including the new building permit.
4.7 Communications. Owner shall communicate with Trade Contractors
principally through Construction Manager, as long as Construction Manager has not been declared in
default hereunder.
4.8 Hazardous Materials. Provided only that Construction Manager shall not
introduce any Hazardous Material into the Project (other than to the extent set forth in the Contract
Documents), Owner shall indemnify and hold Construction Manager harmless from and against any
and all direct claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s
fees and disbursements) arising out of or in connection with the presence of PCB, other
governmentally classified pollutants, contaminants, hazardous materials, hazardous substances,
hazardous waste, or hazardous chemicals (all such governmentally classified categories hereinafter
referred to as “Hazardous Material”), or asbestos abatement, removal, hauling, transportation or
disposal. The foregoing indemnity shall survive the termination of this Agreement and the
completion of the Work to be performed hereunder. To the extent Hazardous Materials are found at
the Project Site and not otherwise contemplated by the scope of the Work; Construction Manager
shall take no action regarding Hazardous Material without first giving Owner written notice thereof.
Construction Manager shall give Owner timely written notice when Construction Manager first
becomes aware of its potential liability for any exposure. Construction Manager shall not knowingly
perform any work involving contact with or exposure to Hazardous Material other than coordination
of the abatement operations, if any, and immediately shall notify Owner as soon as it has reason to
believe or suspect that any Hazardous Material is or may be present. The Owner shall retain the
services of a licensed laboratory to verify the presence or absence of the Hazardous Material reported
by the Construction Manager and, in the event such material or substance is found to be present,
Preview
FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023 EXHIBIT O FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023 AMENDED AND RESTATED CONSTRUCTION MANAGEMENT AGREEMENT This AMENDED AND RESTATED CONSTRUCTION MANAGEMENT AGREEMENT (this “Agreement”) dated as of April 22, 2019 by and between 9 DeKalb Fee Owner LLC, having an office c/o JDS Development Group at 104 Fifth Avenue, 9th Floor, New York, New York 10011 (the “Owner”) and JDS Construction Group LLC, having an office at 104 Fifth Avenue, 9th Floor, New York, NY 10011 (the “Construction Manager”). W I T N E S S E T H: WHEREAS, Owner intends to develop and construct a new mixed use building substantially in accordance with the contract documents (as hereinafter defined) (the “Project”); on a site located at 9 DeKalb Avenue and 340 Flatbush Avenue Extension, Brooklyn, NY 11201 (Block 149, Lots 75, 100) (hereinafter, the Project “Site”); and WHEREAS, Owner wishes to retain Construction Manager to provide certain pre- construction management services as described herein to assist in development of the Project and thereafter; to cause the construction of certain Work required for the Project on a Guaranteed Maximum Price (“GMP”) basis, as hereafter defined, as an at-risk construction manager using trade contractors (“Trade Contractors”) as hereinafter provided; and WHEREAS, Construction Manager, along with Trade Contractors retained by Construction Manager and in isolated cases by Owner, and as hereafter set forth, shall perform all of the required Work, which is comprised of the completed construction required by the Contract Documents, and includes all labor, materials, tools, equipment, temporary utilities, supervision and management necessary to complete the construction of the Project in accordance with the Contract Documents (the “Work”); and WHEREAS, Construction Manager is willing to act in such capacity and cause to be provided through Trade Contractors or its own forces, as hereafter provided, all such labor, material, equipment, tools, equipment, temporary utilities, supervision and management services required for the timely, lien free completion of the Project and otherwise perform its obligations hereunder; and WHEREAS, Owner has retained SHoP Architects PC as Architect for the Project (“Architect”) and also has engaged either through the Architect or directly, structural, mechanical, electrical and other engineers, inspectors, agencies and consultants normally and customarily retained by architects or owners to design the elements or inspect the construction of the Project (hereafter collectively, inclusive of the Architect, the “Design Team”); ft EXHIBIT Plf's 3, 11/17/22 S FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023 NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein and the sum of one ($1.00) dollar by each party in hand paid to the other, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be legally bound, agree as follows: ARTICLE I (Contract Documents) 1.1 Contract Documents. The “Contract Documents” consist of: (i) this Agreement, together with all Exhibits; (ii) all addenda issued prior to, and all duly executed amendments (including Change Orders, as hereafter defined) and modifications (in both cases with attachments) issued after, execution of this Agreement; (iii) the Drawings; (iv) the Specifications; (v) approved shop drawings; and (vi) the Guaranteed Maximum Price document including all attachments thereto. All of the foregoing are an integral part of this Agreement and are as if attached hereto. In resolving any conflicts among the Contract Documents, the above listed order of priority shall control, with item (vi) having the overriding priority, except to the extent subsequently altered by a Change Order or modification; and within each category, the newer Contract Documents shall be given precedence. The Contract Documents expressly do not include documents such as the advertisement or invitation to bid, the instructions to bidders, sample forms, the Construction Manager's bid or portions of addenda relating to any of these or any other documents. 1.2 State of Contract Documents. Construction Manager acknowledges that as of the execution of this Agreement, the Drawings and Specifications are not complete as of their respective dates indicated and will be subject to revisions, refinements, and clarifications, as well as the issuance of additional Drawings, Specifications and documents in order to fully and completely reflect all components and details of the Project. 1.3 Intent of Contract Documents. Construction Manager acknowledges that it has been and remains fully involved during the pre-construction phase in the review and preparation of the Contract Documents, and is fully participating in and endeavoring to assure the completeness of the scope of Work as contained therein. The intent of the Contract Documents is to include all items necessary for the proper and entire execution and completion of the Work (as hereafter defined). The Contract Documents are complementary, and what is required by one shall be as if required by all provided, however, that performance by Construction Manager shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them, or as being necessary to produce the indicated results. 1.4 Conditions of the Work. Construction Manager represents that it has visited the Site of the Work, become familiar with local conditions, including the labor market, under which the Work is to be performed and correlated personal observations with the requirements of the Contract Documents. FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023 1.5 Ownership of Drawings and Specifications. All Drawings, Specifications and copies thereof shall be furnished by Owner, are solely for Construction Manager’s reference with respect to the Project and shall be used for no other or different purpose. Construction Manager has no ownership interest in the Drawings and Specifications. With the exception of one archival which may be retained by Construction Manager, all Drawings and Specifications shall be suitably accounted for to Owner at completion of the Project. Submission or distribution to meet official regulatory requirements or for other purposes in connection with financing of the Project is not to be construed as publication in derogation of the respective ownership interests of Architect, Design Team members and Owner in the Drawings and Specifications. END OF SECTION. ARTICLE II (Scope of the Work) 2.1 The Work. Construction Manager shall cause to be performed and provided through Trade Contractors, or its own forces with respect to general conditions work (as hereinafter provided), all labor, materials, equipment, tools and services (inclusive of hauling and disposing of all known contaminated (i.e. non-hazardous) soils designated by Owner or its consultants but exclusive of PCB, Hazardous Waste as defined in Section 4.8 or asbestos encapsulation, removal, transportation, hauling or disposal which is to be performed by and under the exclusive direction, supervision and control of others, but in all cases tracked and coordinated by Construction Manager) required for the complete construction of the Project in accordance with the terms of the Contract Documents (the “Work”). All materials and equipment furnished or installed into the Project by Construction Manager shall be new unless otherwise specified in the Contract Documents. Nothing contained in this Agreement shall be deemed to authorize or require the Construction Manager to perform with its own forces any act which would constitute the rendering of professional services, such as the practice of architecture, engineering or laboratory testing. 2.2 Construction Manager’s Objectives. Construction Manager recognizes the necessity of a close and collaborative working relationship with Owner and agrees: to furnish the skill and judgment of its organization in the performance of this Agreement; to provide Construction Manager's knowledge, insight, ideas, experience and abilities relating to the planning of the construction of the Project; to furnish efficient business administration and superintendence; and to use diligent efforts to arrange for an adequate supply of workmen, materials and equipment in order to complete the Work in an expeditious and economical manner consistent with the interests and objectives of Owner, as made known to Construction Manager. Construction Manager understands that it is the Owner's intent to construct the Project at a competitive cost and in the most expeditious manner consistent with budgetary considerations. END OF SECTION. FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023 ARTICLE III (Construction Manager's Status and Duties) 3.1 Relationship of Trust and Confidence. Construction Manager accepts the relationship of trust and confidence established between it and Owner by this Agreement. The Construction Manager shall furnish efficient business administration, coordination, and management to cause the Work to be performed in the most expeditious and economical manner consistent with the interests of safety and the Owner. The Construction Manager shall cooperate with the Architect and Owner in furthering the interests of the Owner and the Project. 3.2 Trade Contracting. With the exception of general conditions, protections, cleaning, rubbish removal and other portions of the Work customarily performed by Construction Manager’s own forces, the Work shall be performed and materials and equipment supplied under contracts (“Contracts”) with trade contractors, suppliers or vendors (“Trade Contractors”). Construction Manager shall be responsible for any acts, errors or omissions arising out of all Contracts entered into between Construction Manager and Trade Contractors (and any contracts between Trade Contractors and lower tier Trade Contractors) for Work on the Project. Construction Manager shall use its standard form trade contract in contracting out the Work to Trade Contractors pursuant to this Agreement. Copies of the standard form trade contract are attached hereto as Exhibit “A”. 3.2.1 If this Agreement is terminated by Owner pursuant to Article XIV, then Contract, at the option of Owner in its sole discretion, shall be assigned by Construction Manager to Owner, or to such other entity as Owner may direct. In such event, Owner or its designees as of the date of assignment shall assume all of Construction Manager’s post-assignment obligations thereunder; provided, however, that nothing contained herein shall be deemed to release Construction Manager from liability to such Trade Contractor, or to Owner or Owner’s designees, with respect to claims arising from events occurring prior to the effective date of such assignment. 3.3 Construction Manager’s Pre-construction Services. Construction Manager, as part of the Work, shall: (a) consult and meet with Owner and Design Team with respect to the Work and development of the Drawings and Specifications for the Project, including, without limitation, geotechnical considerations and related Site work, all building systems (e.g. MEPs, structural, utilities and vertical transportation) and all governmental or other permits and approvals required in connection with the Project; (b) meet and consult with Owner and Design Team and make recommendations to Owner with respect to the availability and cost of materials (including recommending to Owner the advance ordering / purchase of long lead time items and ordering such long lead time items), equipment and labor; the selection of materials; the selection of building systems and equipment, costs of construction (including the use of and estimates of unit pricing, and costs of alternative designs or materials), construction feasibility and alternative methods of construction, necessary FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023 temporary and support facilities; Site logistics (which shall be planned in detail prior to submission to governmental agencies having jurisdiction) and implemented expressly to facilitate all Work at the Project Site proceeding simultaneously and continuously, including without limitation the work with respect to access points, vertical transportation, protection and Site storage), and utilities and prevalent construction insurance programs presently utilized in the industry; (c) provide and at appropriate intervals at Owner’s request refine Project budget estimates for the Work, including monthly cost projections or forecasts once the major requirements of the Project have been identified; (d) provide, update as permitted and maintain a Construction Schedule for the Work (indicating all construction activities); (e) review the Contract Documents as they are being prepared by Architect for the purpose of evaluating same and using its best efforts in making recommendations to Owner and Architect with respect to the following: (i) the availability of labor, materials and supplies; (ii) elimination of possible conflicts and/or overlapping jurisdictions among the various trades or overlapping responsibilities among Trade Contractors; (iii) (x) obvious conflicts and omissions and (y) variations from customary construction practices and methods as discovered by Construction Manager, diligent efforts having been made, which, in the opinion of Construction Manager, may cause difficulties or occasional delay in the performance of the Work, it being expressly understood, however, that by review of the Contract Documents under this Section 3.3, Construction Manager does not thereby assume responsibility for design errors and omissions; (iv) discrepancies and deficiencies observed by Construction Manager in and among the Contract Documents, or between the Contract Documents and existing conditions at the Project; (v) conduct of construction operations utilizing good construction practices; (vi) costs of labor, materials, supplies, tools and equipment to be used in the performance of the Work; (vii) unit prices and alternates; FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023 (viii) required adjoining property owner protection, and temporary and Project support requirements; (ix) construction detailing; and (x) construction economies through alternative methods, materials, or concepts, consistent with Owner's requirements and sound construction practices. (f) consistent with its obligations hereunder, the Construction Manager shall investigate and become familiar with all existing field conditions revealed by information furnished by Owner pursuant to Section 4.2 below, or that are apparent from a visual inspection of the Project Site, shall compare them with what is provided in the Contract Documents and shall report to the Owner any visible or otherwise known inconsistencies, errors or omissions in connection therewith. 3.4 Construction Manager’s Construction Services. Beginning with the earlier of: (i) initiation of excavation work or (ii) initiation of any on-Site construction under Construction Manager’s management, and thereafter until completion of the Work, Construction Manager shall, as part of the Work: (a) procure estimates at Owner’s request from Trade Contractors proposed for each of the required elements of the Work. Construction Manager shall review, analyze and level each bid and conduct negotiations with bidders to obtain the most favorable price and terms consistent with Owner's goals of economy; review with Owner Construction Manager’s recommendations with regard to awarding Contracts for the Work. (b) supervise the performance of the Work by Trade Contractors and coordinate and schedule the Work of all Trade Contractors on the Project. Cooperate in the monitoring of the Work by Architect and other Design Team members in order to assure that Trade Contractors complete their respective portions of the Work in accordance with the Contract Documents and all legal requirements. (b1) Construction Manager shall prepare and maintain, on a current basis, an on-site record-keeping system, including, but not limited to: (i) records of all changes in the Work necessitated by Change Orders; (ii) Construction Schedules; (iii) submittal log; and (iv) daily/weekly reports, which shall record manpower breakdowns on a Trade Contractor-by-Trade Contractor basis with a description of the Work being performed each day by each Trade Contractor, accidents, weather conditions, and other Work-related information. (b2) continuously monitor the condition of all adjoining properties, and any other properties expressly required to be monitored by any authority having jurisdiction, and verify that all required and prudent safety precautions and protections are maintained in place and in a condition appropriate for their purpose. Construction Manager shall assist Owner in working with, and coordinating the activities of, all utility providers and Trade Contractors so that all required FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023 access to and installations at the Project Site are expedited and facilitated in a timely manner. Owner shall be responsible for securing any access and/or licenses required to lawfully enter upon any neighboring property for purposes of performing the Work and protecting neighboring properties. (c) Construction Manager shall review and approve, subject to Owner’s approval, a detailed trade payment breakdown for each Trade Contractor of all tiers prior to the first requisition received from that Trade Contractor. Construction Manager also shall review the Work performed by each Trade Contractor to determine whether the Work has progressed to the point indicated on its Application for Payment and that it is being performed in strict accordance with the Contract Documents, and guard Owner against defects and deficiencies in the Work, advising Owner upon discovery of any uncorrected defect or deficiency. Construction Manager shall require any Trade Contractor to stop Work or any portion thereof and require special inspection or testing of any Work determined by Construction Manager, or Owner not to be in accordance with the Contract Documents whether or not such Work is then fabricated, installed or completed. If, at any time before acceptance of the Work, Owner, or Construction Manager has reasonable cause to believe that any part of the Work is not in accordance with the Contract Documents, Owner may direct Construction Manager to require the responsible Trade Contractor to remove or uncover, at Trade Contractor’s own cost and expense, any portion of the completed Work. If defective, Construction Manager shall require the Trade Contractor, at its own cost and expense and after correcting the deficiency within five (5) days of notice thereof, or if such defect cannot be cured within five (5) days, then in any event within thirty (30) days, to restore or cause to be restored the Work to the standard required by the Contract Documents, as directed by Owner. If such Work is not defective, Owner shall bear the cost of removing, uncovering and replacement to the standard required by the Change Order issued in connection therewith. Notwithstanding the foregoing, to the extent that any Work shall be covered contrary to the requirements of a Contract Document or prior written direction of Owner, Architect or Construction Manager, the responsible Trade Contractor shall bear all costs in connection with removal, uncovering and replacement regardless of whether the Work in fact complies with Contract Documents’ requirements. (c1) advise Owner if Construction Manager has good reason to believe that any Trade Contractor may be incapable of completing its work in a timely manner and promptly consult in good faith with Owner whenever Owner expresses a concern that any Trade Contractor(s) is performing in a manner that puts the Project at risk and in both cases, discuss with the Owner what actions, both current and contingent, Construction Manager intends to take to address Owner’s concerns and maintain required Project progress and cost. (d) perform general conditions, cleaning and similar services normally performed by Construction Manager. Closely supervise all concrete and steel erection operations in terms of avoiding spillage from concrete buckets, damage from crane swings and materials so as to avoid injury and damage to all surrounding areas, persons and property. Notwithstanding the foregoing, to the extent any such spillage occurs, Construction Manager shall take immediate measures to effect a full clean-up. (e) arrange for and monitor the early procurement and expediting of long- FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023 lead materials and equipment required in connection with the Work, and advise Owner with respect to potential delays in their purchase and delivery and, in the case of delays in any Work directly contracted by Owner, impact on the Construction Schedule. (f) schedule and conduct job meetings with Owner and Design Team when necessary, and when otherwise reasonably required by Owner, and coordinate meetings with appropriate parties as necessary. (g) with the exception of controlled inspections, which shall be the responsibility of Owner; identify and cause to have made by others such tests as shall be required, necessary or appropriate. (h) obtain all necessary licenses and permits, except if and to the extent that the same, under applicable law or practice, must be or are normally obtained by Owner, Architect or Trade Contractors and, in such event, cooperate and coordinate with Owner, Architect, or Trade Contractors, as the case may be, in obtaining and maintaining in good standing such licenses and permits. Notwithstanding the foregoing, Owner shall secure and pay for the building permit and any licenses required from adjoining property owners. (i) keep for Owner’s review and copying such accounts and cost records, in addition to those specified in Article XVIII, as customarily are maintained by Construction Manager on similar projects and in the construction industry generally, including cost records required in connection with time and material and unit price Change Order work. (j) if required by local ordinance, provide a dedicated, full-time Site Safety Manager (which may be provided through a third party, in which event such costs shall be included as part of the Fees described in Article VIII) through the complete enclosure of the building(s) at the Project, and thereafter with Owner’s approval may scale back from full-time to part time, but in any event shall be on Site as is reasonably necessary to oversee the Work. The Site Safety Manager shall make available to all Trade Contractors, Construction Manager’s “Site Safety Program and Manual”, compliance with which shall be mandatory, and continually review (in the nature of continuous surveys of the Site whenever construction activity is taking place) the safety programs of Trade Contractors and make appropriate recommendations to ensure the Project safety program is implemented and adhered to. Construction Manager routinely shall inspect the Work to check safety precautions or programs for the Project, and shall ensure that its Site Safety Manager is certified, as required by the New York City Department of Buildings and applicable law. The performance of these services by Construction Manager shall be in addition to the responsibility of Trade Contractors for safety of persons or property and for compliance with all federal, state and local safety, health and environmental statutes, rules, regulations and orders and all other requirements of law, including, without limitation, the Construction Safety Act of 1969 and the Williams-Steiger Occupation Safety and Health Act, as the same from time to time may be amended. FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023 (k) provide reasonable assistance to and cooperation with Owner, in any legal actions or proceedings that may arise out of or relate to the Work (other than those arising from disputes between the Owner and Construction Manager), including appearances, for three (3) years after issuance of the final temporary certificate of occupancy for the Project in connection with such actions or proceedings. (l) with respect to Construction Manager’s one (1) year warranty and guarantee of Work only; secure, verify that the length and commencement are as specified herein and assist the Owner, for one (1) year after the date of Substantial Completion of the Work, in obtaining the performance by Trade Contractors of all warranty and guarantee obligations and the correction of incomplete and/or deficient Work. (m) assess the adequacy of all shop drawings, samples and/or submittals from Trade Contractors for transmittal to Design Team member(s) for review and when adequate for that purpose; establish a shop drawing, sample and submittals’ submission schedule for the flow of required information among Trade Contractors and Design Team members to assure the orderly and timely exchange and approval of required information (the submission schedule shall allow the Architect and Design Team member(s), absent unusual circumstances, ten (10) days after receipt of shop drawings, samples and/or submittals from Construction Manager to review and reject or approve same); coordinate (and monitor through the shop drawing, sample and submittals’ submission schedule) the submission by Trade Contractors and approval by Architect and other consultants of all required shop drawings, samples, catalog cuts and other submissions; maintain a log of all such submissions; enforce Trade Contractor’s shop drawing submission obligations; advise Owner periodically as to the status of such submissions; advise Owner and Architect of any errors in such submissions that are discovered by Construction Manager (without assuming Architect’s responsibility for reviewing and approving such submissions); and coordinate the various disciplines after the Architect's approval of the respective shop drawings and before action. (n) at all times cause the Site to be kept free from rodents, vermin and other pests and the accumulation of waste material or rubbish caused by the Work. Upon Substantial Completion of the Project, Construction Manager shall cause all remaining waste material and rubbish to be removed from and about the Site as well as, other than to the extent required for then remaining punch list work, all tools, construction equipment, machinery and surplus materials. Construction Manager shall not knowingly permit the introduction, installation or incorporation into the Project of any Hazardous Material (as defined in Section 4.8), and promptly shall advise Owner if it believes or becomes aware that the Contract Documents require the incorporation of any such material. (o) review requests for changes by Owner or Architect, submit recommendations to Owner regarding same, make independent recommendations regarding changes to the Work to enable expeditious and economical completion of the Work, participate in negotiating Trade Contractor change orders, prepare and process written Change Orders and transmit same to Owner. All “Change Orders” which cause an increase in the Guaranteed Maximum Price or an extension of the Construction Schedule first shall be sent for review by Owner, and shall require FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023 Owner's prior written approval, it being agreed that minor changes with an anticipated cost of less than such amount as provided in the Construction Loan or such other loan entered into by Owner from time to time may be authorized by Construction Manager field orders without Owner's prior consent. (p) prepare and submit monthly Applications for Payment in accordance with Article XI and the Contract Documents. (q) if requested, cooperate with Owner in the selection and retention of professionals and other consultants in connection with the Work. (r) consult with Owner and Architect in connection with any interpretations of the Contract Documents; promptly give notice to Owner and Architect of any dispute or claim which may arise during construction of the Project, and participate in good faith in the resolution of any such dispute or claim. (s) subject to the provisions of Section 11.10, make recommendations to Owner regarding the advisability of pre-purchasing materials and equipment to be incorporated into the Work, facilitate arrangements for on and off-Site storage of the same, if approved in advance by Owner (including such arrangements as Owner shall deem necessary or desirable for (i) access to such materials for the purpose of verification, inspection and removal of the same, (ii) protecting Owner's title to such materials, free and clear of all liens, encumbrances and rights of others, and (iii) segregating, identifying, insuring and protecting same). (t) consult with Owner in the preparation, inspection and completion of punch lists, promptly undertake and continue the performance of punch list work, participate in conducting inspections required to determine Substantial Completion of the Work and compliance with punch lists, and participate in the final inspection of the Work. (u) coordinate, cooperate and conduct with Owner's maintenance or operational personnel during start-up and testing of utilities, equipment and all systems. (v) cooperate and consult with Owner, Architect, their consultants and engineers in closing-out each Trade Contractor and receive and transmit to Owner all required guarantees, warranties, waivers and consents of surety or SDI carrier (if necessary), affidavits, releases, certificates of compliance (if required), maintenance manuals, waivers of lien, as-built Drawings, training session audio/video tapes, and other documents required by the Contract Documents and the Contracts prior to final payment being made. (w) maintain a complete set of Drawings, Specifications, Contracts, purchase orders, shop drawings, and related documents at the Project Site office or at Construction Manager's principal office. (x) assure, coordinate and monitor enforcement of guarantees and FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023 warranties of Trade Contractors for a period of one (1) year from the date of Substantial Completion of the Work. (y) timely provide all required insurance, insurance certificates and endorsements in accordance with the Contract Documents, and maintain required insurance coverage throughout the duration of the Project, including the completed operations period. (z) timely obtain all temporary certificates of occupancy, including the coordination and conducting of all on-Site inspections by governing agencies having jurisdiction over the Project; and coordinate and cooperate with Owner’s expeditor’s (as applicable) efforts to secure a permanent certificate of occupancy and complete all required documents and filings. (aa) immediately take such action as reasonably may be necessary in an emergency to protect life and property, and notify Owner of such actions as soon as practicable. Construction Manager shall be entitled to additional compensation, equitably negotiated between the parties and/or an extension of time on account of such emergency, to the extent that there is a demonstrable impact to the Construction Schedule such that the Project Substantial Completion Date may be extended, and/or costs to perform expedited, out-of-sequence or overtime Work may be approved, unless the emergency was caused by the negligent acts or omissions of Construction Manager (or anyone else for whom Construction Manager is legally liable), in which case no adjustments shall be made. (ab) arrange for and maintain as required (i) extermination and other pest control and elimination services during construction, (ii) Site security at all times, and (iii) temporary utilities, in all cases until Substantial Completion of the Work, or as otherwise directed by Owner. 3.5 Guaranties and Warranties. Notwithstanding anything to the contrary contained in this Agreement: (a) Construction Manager warrants and guarantees all Work performed and materials and equipment furnished under this Agreement against defects in materials and workmanship for a period of one (1) year from the date of Substantial Completion of the Work. Construction Manager, promptly after receipt of written notice thereof, shall make good any deficiencies in the Work or incomplete Work which may develop within periods for which affected materials, equipment and workmanship are guaranteed. (b) all warranties and extended repair/replacement obligations provided under the Contract Documents shall be for the benefit of and enforceable by Owner and its successors and assigns, and all warranties which extend for more than one (1) year shall be assigned to Owner, who shall enforce those warranties after expiration of the one (1) year guaranty period. (c) Construction Manager shall obtain and deliver to Owner any Contract Document required specific warranties given by Trade Contractors providing labor, materials or FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023 equipment to the Project. (d) all warranties and extended repair/replacement obligations provided under the Contract Documents are in addition to and not in limitation of any other rights Owner may have under the Contract Documents, including without limitation those arising out of a breach of contract or as otherwise provided by law or equity. Nothing contained in this Section 3.5 shall be construed to establish a period of limitation with respect to other obligations which the Construction Manager might have under the Contract Documents. Establishment of the one-year guaranty period as described herein relates only to the specific obligation of the Construction Manager to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Construction Manager’s liability with respect to the Construction Manager’s obligations other than specifically to perform guaranty work. (e) Construction Manager shall coordinate with its Trade Contractors and as required by the Contract Documents to secure from Trade Contractors the most stringent warranties available to them, and all other specific guarantees required by the Contract Documents. All guarantees or warranties of equipment or materials furnished to the Construction Manager or Trade Contractor by any manufacturer or supplier shall be deemed to run for the benefit of the Owner and its designees. (f) The one year construction warranty available to Owner from Construction Manager pursuant to this Agreement is for the sole and exclusive benefit of Owner and expressly excludes any third party beneficiaries (excepting the Lender), and Owner expressly agrees that there shall be no assignment of this one year warranty, other than to the extent required by Lender as permitted herein, without Construction Manager’s prior written approval, to be granted or withheld in its sole discretion. END OF SECTION. ARTICLE IV (Owner's Responsibilities) 4.1 Required Information. Owner with reasonable promptness shall provide all information reasonably requested regarding its requirements for the Project. 4.2 Design Professionals and Consultants. Owner shall retain the Architect and, either directly or through the Architect, all other professional and technical consultants required for the design of, preparation of Drawings and Specifications for, and inspection of the Project. As applicable, Owner also shall furnish all necessary surveys describing the physical characteristics, subsurface conditions, soil reports, legal limitations, utility locations and a legal description of the metes and bounds of the Site. Construction Manager shall be entitled to rely upon the accuracy and completeness of the Contract Documents’ Drawings, Specifications, and of surveys and reports FILED: KINGS COUNTY CLERK 04/24/2023 12:47 PM INDEX NO. 507943/2020 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 04/24/2023 prepared or made available by Owner's Architect, engineers and consultants. 4.3 Testing Services. Owner shall furnish such auditing and independent testing services as in its reasonable judgment may be necessary for the Project, including controlled inspections to the extent not provided by Trade Contractors. 4.4 Contract Document Deficiencies. Owner promptly shall notify Construction Manager of any fault or defect in the Work, or non-compliance with the Contract Documents, of which it becomes aware. 4.6 Approvals and Permits. As necessary, Owner shall secure and pay for necessary governmental, quasi-governmental and other public agency approvals, easements, licenses, assessments and charges required for the construction, use or occupancy of the permanent structures or for permanent changes in existing facilities, including the new building permit. 4.7 Communications. Owner shall communicate with Trade Contractors principally through Construction Manager, as long as Construction Manager has not been declared in default hereunder. 4.8 Hazardous Materials. Provided only that Construction Manager shall not introduce any Hazardous Material into the Project (other than to the extent set forth in the Contract Documents), Owner shall indemnify and hold Construction Manager harmless from and against any and all direct claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees and disbursements) arising out of or in connection with the presence of PCB, other governmentally classified pollutants, contaminants, hazardous materials, hazardous substances, hazardous waste, or hazardous chemicals (all such governmentally classified categories hereinafter referred to as “Hazardous Material”), or asbestos abatement, removal, hauling, transportation or disposal. The foregoing indemnity shall survive the termination of this Agreement and the completion of the Work to be performed hereunder. To the extent Hazardous Materials are found at the Project Site and not otherwise contemplated by the scope of the Work; Construction Manager shall take no action regarding Hazardous Material without first giving Owner written notice thereof. Construction Manager shall give Owner timely written notice when Construction Manager first becomes aware of its potential liability for any exposure. Construction Manager shall not knowingly perform any work involving contact with or exposure to Hazardous Material other than coordination of the abatement operations, if any, and immediately shall notify Owner as soon as it has reason to believe or suspect that any Hazardous Material is or may be present. The Owner shall retain the services of a licensed laboratory to verify the presence or absence of the Hazardous Material reported by the Construction Manager and, in the event such material or substance is found to be present,