Preview
FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024
EXHIBIT 12
FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024
i o
Document A103w - 2017
if ..-2
ARE
-1-its/9
Standard Form of Agreement Between Owner and Contractor where the basis of
payment is the Cost of the Work Plus a Fee without a Guaranteed Maximum Price
AGREEMENT made as of the Ninth clay of Jauuaiy in the year Two Thousand Eighteen
(In words, indicate day, month and year.) ADDITIONS AND DELETIONS2
The author of this document has
BETWEEN the Ownerz added information needed for its
(Name, legal status, address and other information) completion. The author may also
have revised the text of the original
SNL Orix Fort Hamilton, LLC AIA standard form. An Additions and
3491-3507 Fort Hamilton Parkway Deletions Report that notes added
Brooklyn,NY 11218 intormation as well as revisions to the
Telephone Numberz (516) 472-7880 standard form text is available from
Fax Numbers (516) 472-7983 the author and should be reviewed. A
vertical line in the left margin of this
and the Contractorz document indicates where the author
has added necessary information
(Name, legal status, address and other information)
and where the author has added to or
deleted from the original AIA text.
SNL Construction LLC t
3333 New Hyde Park Road, Suite 200 This document has important legal
Lake Success, NY 11042 consequences. Consultation with an
Telephone Numbei-I (516) 472-7880 attorney is encouraged with respect
Fax Number (516) 472-7983 to its completion or modification.
The parties should complete A103TM
for the following Projects
-2017, Exhibit A, insurance and
(Name, location and detailed description) Bonds, contemporaneously with this
Agreement. AIA Document A201m-
SNL Orix Fort Hamilton, LLC 2017, General Conditions of the
3491-3507 Fort Hamilton Parkway Contract for Construction, is adopted
Brooklyn, NY 1 1218 in this document by reference. Do not
use with other general conditions
The Architect unless this document is modihed.
(Name, legal status, address and other information)
Frank G. Relf Architect, P.C.
35 Pinelawn Road, Suite il207W
Melville, NY 1 1746
Telephone Nulnbert (631) 271-4432
The Owner and Contractor agree as follows.
AIA Document M03114 -2017. Copyright(92001, 2007 and 2017 by The American institute of Architects. Ali rights reserved. WARNlNGz This AlA0 Document
is protected by U.S. Copyright Law and international Treaties. Unauthorized reproduction or distribution ofthis AIAQ Document, or any portion of it, may
result in severe civil and criminal penalties, and witi be prosecuted to the maximum extent possible under the law. This document was produced by AIA
1
soitware at 11259126 on 01/29/2018 under Order No.0074i43578 which expires on 01/03/2019, and is not for resale.
User Notest (1347314509)
FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024
TABLE OF ARTICLES
1 THE CONTRACT DOCUMENTS
2 THE WORK OF THIS CONTRACT
3 RELATIONSHIP OF THE PARTIES
4 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
5 CONTRACT SUM
6 CHANGES IN THE WORK
7 COSTS TO BE REIMBURSED
8 COSTS NOT TO BE REIMBURSED
9 DISCOUNTS, REBATES AND REFUNDS
10 SUBCONTRACTS AND OTHER AGREEMENTS
11 ACCOUNTING RECORDS
12 PAYMENTS
13 DISPUTE RESOLUTION
14 TERMINATION OR SUSPENSION
15 MISCELLANEOUS PROVISIONS
16 ENUMERATION OF CONTRACT DOCUMENTS
EXHIBIT A INSURANCE AND BONDS
ARTICLE 1 THE CONTRACT DOCUMENTS
The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other
Conditions), Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed
in this Agreement, and Modifications issued aiier execution of this Agreement, all of which form the Contract and are
as fully a part of the Contract as if attached to this Agreement or repeated herein, The Contract represents the entire
and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements,
either written or oral. If anything in the other Contract Documents, other than a Modification, is inconsistent with this
Agreement, this Agreement shall govern. An enumeration of the Contract Documents, other than a Modification,
appears in Article 16.
ARTICLE 2 THE WORK OF THIS CONTRACT
The Contractor shall fully execute the Work described in the Contract Documents, except as specifically indicated in
the Contract Documents to be the responsibility of others.
ARTICLE 3 RELATIONSHIP OF THE PARTIES
The Contractor accepts the relationship of trust and conidence established by this Agreement and covenants with the
Owner to cooperate with the Architect and exercise the Contractorts skill and judgment in furthering the interests of
the Ownerg to furnish efficient business administration and supervision, to furnish at all times an adequate supply of
workers and materialsg and to perform the Work in an expeditious and economical manner consistent with the industry
AIA Document A103m -2011. Copyrlghtto 2001 2007 and 2017 by The American institute ofArchltects. All rights reserved. WARNiNGz This AIAW Document
is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this NAG) Docuruent, or any portion of it, may
.
2
result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the taw. This document was produced by AIA
software at 11240155 on 01/28/2018 under Order No.0074143578 which expires on 01/03/2019, and is not tor resale.
User Notesz (20D3330157)
FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024
standards. The Owner agrees to furnish and approve, in a timely manner, information required by the Contractor and
to make payments to the Contractor in accordance with the requirements of the Contract Documents.
ARTICLE 4 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
Q 4.1 The date of commencement of the Work shall bez
i
(Check one of the following boxes.)
I I The date of this Agreement.
I I A date set forth in a notice to proceed issued by the Owner.
I 1 Established as followsl
(Insert a date or a means to determine the date of commencement of the Work)
I X I Upon Receipt of Building Permit
If a date of commencement of the Work is not selected, then the date of commencement shall be the date of this
Agreement.
5 4.2 The Contract Time shall be measured from the date of commencement of the Work.
Q 4.3 Substantial Completion
Q 4.3.1 Subject to adjustments of the Contract Time as provided in the Contract Documents, the Contractor shall
achieve Substantial Completion of the entire Workt
(Check one of the following boxes and complete the necessary information.)
I 1 Not later than ( ) calendar days from the date of commencement of the Work.
I X 1 By the following datei 620 Calendar days from date of commencement of work
5 4.3.2 Subject to adjustments of the Contract Time as provided in the Contract Documents, if portions of the Work are
to be completed prior to Substantial Completion of the entire Work, the Contractor shall achieve Substantial
Completion of such portions by the following datesi
Portion of Work Substantial Completion Date
Q 4.3.3If the Contractor fails to achieve Substantial Completion as provided in this Section 4.3, liquidated damages, if
any, shall be assessed as set forth in Section 5.1.6.
I
ARTICLE 5 CONTRACT SUM
5 5.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractoris performance of the
Contract. The Contract Sum is the Cost of the Work as defined in Article 7 plus the Contractor-is Fee. The contract
sum as shown on the Control Estimate is NINE MILLION, FIVE HUNDRED NINETY-SIX THOUSAND, NINE
HUNDRED FIFTEEN DOLLARS AND SIXTEEN CENTS (S9,596,915.16).
5 5.1.1 The Contractoris Feez
(Stare lump sum, percentage of Cost of the Worlg or other provision for determining
zr the Contractor is
Fee.)
6041
Q 5.1.2 The method of adjustment of the Contractoris Fee for changes in the Workz
Cost Plus Fee
AIA Document A103m -2017. Copyrightto 2001, 2007 and 2017 by The American Institute oi Architects. All rights reserved. WARNiNGz This At/A9 Document
is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this Aikta Document, or any portion of may
It,
result in severe civil and criminal penalties, and will he prosecuted to the maximum extent possible under the law. This document was produced by AiA
software at 0924158 on 01/31/2018 under Order No.0074143578 which expires on O1/03/2019, and ls not for resale.
User Notesz (1366575682)
FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024
Q 5.1.3 Limitations, if any, on a Subcontractoris overhead and profit for increases in the cost of its portion of the Workt
I
10170 overhead, SM) fee
Q 5.1.4 Rental rates for Contractor-owned equipment shall not exceed TEN percent ( 10 ck) of the standard rental rate
l
paid at the place of the Project.
Q 5.1.5 Unit prices, if anyz
(Identifv the item and state the unit price and quantity limitations, if any, to which the unit price will be applicable.)
item Units and Limitations Price Per Unit (50.00)
Q 5.1.6 Liquidated damages, if anyz
(Insert terms and conditions for liquidated damages, ifany.)
Q 5.1.7 Otherz
(Insert provisions for bonus or other incentives, if any, that might result in a change to the Contract Sum.)
5 5.2 Control Estimate
5 5.2.1 The Contractor shall prepare and submit to the Owner, in writing, a Control Estimate within l4 days of
executing this Agreement. The Control Estimate shall include the estimated Cost of the Work plus the Contractoris
Fee. The Control Estimate shall he used to monitor actual costs and the timely performance of the Work. The
Contractor shall update the Control Estimate with each Application for Payment as needed to reflect changes in the
Work.
Q 5.2.2 The Control Estimate shall include
.1 the documents enumerated in Article 16, including all Modifications theretog
.2 made by the Contractor in the preparation of the Control Estimate, including
a list of the assumptions
assumptions under Section 5.2.4, to supplement the information provided by the Owner and contained
in the Contract Documents,
.3 a statement of the estimated Cost of the Work organized by trade categories or systems and the
Contractorls Feeg
.4
l
5 5.2.3 The Contractor shall meet with the Owner and Architect to review the Control Estimate. In the event that the
Owner or Architect discovers any inconsistencies or inaccuracies in the information presented, they shall promptly
notify the Contractor, who shall make appropriate adjustments to the Control Estimate. When the Control Estimate is
acceptable to the Owner, the Owner shall acknowledge it in writing. The Owneris acceptance of the Control Estimate
does not imply that the Control Estimate constitutes a Guaranteed Maximum Price.
Q 5.2.4 To the extent that the Contract Documents are anticipated to require further development, the Contractor shall
provide in the Control Estimate for such further development consistent with the Contract Documents and reasonably
inferable therefrom. Such further development does not include changes in scope, systems, kinds and quality of
materials, finishes or equipment, all of which, if required, shall he incorporated in a revised Control Estimate by
mutual agreement of the parties.
Q 5.2.5 The Contractor shall develop and implement a detailed system of cost control that will provide the Owner and
Architect with timely information as to the anticipated total Cost of the Work. The cost control system shall compare
the Control Estimate with the actual cost for activities in progress and estimates for uncompleted tasks and proposed
changes. This information shall be reported to the Owner, in Writing, no later than the Contractor-is first Application
for Payment and shall be revised and submitted with each Application for Payment.
AIA Document A103W - 2011. Copyrlghtg 2001, 2007 and 2017 by The American Institute of Architects. All rights reserved. WARMNG1 This AIAQ Document
is protected by U.S. Copyright Law and international Treaties. Unauthorized reproduction or distribution of this MAE DOi1tlmi)I\i, or any portion of it, may
lnit.
result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA
4
I software at 11140255 on 01/26/2018 under Order No.O074143578 which expires on 01/03/2019, and ls not for resale.
User Notesz (2003330157)
FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024
Q 5.2.6 The Owner shall authorize preparation of revisions to the Contract Documents that incorporate the agreed-upon
assumptions contained in the Control Estimate. The Owner shall promptly furnish such revised Contract Documents
to the Contractor. The Contractor shall notify the Owner and Architect of any inconsistencies between the Control
Estimate and the revised Contract Documents.
ARTICLE 6 CHANGES IN THE WORK
Q 6.1 The Owner may, without invalidating the Contract, order changes in the Work within the general scope of the
Contract consisting of additions, deletions or other revisions. The Owner shall issue such changes in writing. The
Architect may make minor changes in the Work as provided in Article 7 of AIA Document A201-M-20 17, General
Conditions of the Contract for Construction. The Contractor shall be entitled to an equitable adjustment in the Contract
Time as a result of changes in the Work. The Contractor shall incorporate all changes in the Work and Contract Time
as separate entries in the Control Estimate.
5 6.2 Increased costs for the items set forth in Article 7 which result from changes in the Work shall become part of the
Cost of the Work, and the Contractorls Fee shall be adjusted as provided in Article 5.
Q 6.3 If the Contractor receives any drawings, specifications, interpretations or instructions from the Owner or
Architect which are inconsistent with the Contract Documents, or encounters unanticipated conditions, any of which
will result in a significant change in the Cost of the Work or estimated date of Substantial Completion in comparison
with the Control Estimate, the Contractor shall promptly notify the Owner and Architect in writing
Q 6.4 If no specific provision is made in Article 5 for adjustment of the Contractoris Fee in the case of changes in the
Work, or if the extent of changes is such, in the aggregate, that application of the adjustment provisions of Article 5
will cause substantial inequity to the Owner or Contractor, the Contractoris Fee shall be equitably adjusted on the
same basis that was used to establish the Fee for the original Work.
ARTICLE 7 COSTS TO BE REIMBURSED
Q 7.1 Cost of the Work
Q 7.1.1 The term Cost of the Work shall mean costs necessarily incurred by the Contractor in the proper performance of
the Work. The Cost of the Work shall include only the items set forth in this Article 7.
Q 7.1.2 Where, pursuant to the Contract Documents, any cost is subject to the Owneris prior approval, the Contractor
shall obtain such approval in writing prior to incurring the cost.
5 7.1.3 Costs shall be at rates not higher than the standard paid at the place of the Project, .
5 7.2 Labor Costs
Q 7.2.1 Wages or salaries of construction workers directly employed by the Contractor to perforrrr the construction of
the Work at the site or, .
Q 7.2.2 Wages or salaries of the Contractoris supervisory and administrative personnel when stationed at the site and
performing Work, .
Q 7.2.2.1 Wages or salaries of the Contractorls supervisory and administrative personnel when performing Work and
stationed at a location other than the site, but only for that portion of time required for the Work, and limited to the
personnel and activities listed belowz
(Idenrijfjr the personnel, type of activity rmd, if applicable, any agreed upon percentage of time to be devoted to the
Work.)
Q 7.2.3 Wages or salaries of the Contractoris supervisory or administrative personnel engaged at factories, workshops
or while traveling, in expediting the production or transportation of materials or equipment required for the Work, but
only for that portion of their time required for the Work.
AIA Document A1 03w -2017. Copyrlghtte 2001, 2007 and 2017 by The American Institute ofArchliecis. Aii rights reserved. WARNiNGz This AIM) Document
is protected by U.S. Copyright Law and international Treaties. Unauthorized reproduction or distribution oi this AIAE DOGUT\1et1l,Dr any portion of it, may
init.
5
resuit in severe civil and criminal penalties, and wiii be prosecuted to the maximum extent possible under the law. This document was produced by AIA
I software at 11140255 on 01/26/2018 under Order No.0O7/M43578 which expires on 01/03/2019. and is noi for resale.
User Notesz (2003330157)
FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024
5 7.2.4 Costs paid or incurred by the Contractor, as required by law or collective bargaining agreements, for taxes,
insurance, contributions, assessments, and benefits and, for personnel not covered by collective bargaining
agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions,
provided such costs are based on wages and salaries included in the Cost of the Work under Sections 7.2.1 through
7.2.3.
Q 7.2.5 If agreed rates for labor costs, in lieu of actual costs, are provided in this Agreement, the rates shall remain
unchanged throughout the duration of this Agreement, unless the parties execute a Modification.
5 7.3 Subcontract Costs
Payments made by the Contractor to Subcontractors in accordance with the requirements of the subcontracts and this
Agreement.
Q 7.4 Costs of Materials and Equipment incorporated in the Completed Construction
Q 7.4.1 Costs, including transportation and storage at the site, of materials and equipment incorporated, or to be
incorporated in the completed construction.
Q 7.4.2 Costs of materials described in the preceding Section 7.4.1 in excess of those actually installed to allow for
reasonable waste and spoilage. Unused excess materials, if any, shall become the Ownerls property at the completion
of the Work or, at the Owneris option, shall be sold by the Contractor. Any amounts realized from such sales shall be
credited to the Owner as a deduction from the Cost of the Work.
5 7.5 Costs of Other Materials and Equipment, Temporary Facilities and Related items
Q 7.5.1 Costs of transportation, storage, installation, dismantling, maintenance, and removal of materials, supplies,
temporary facilities, machinery, equipment and hand tools not customarily owned by construction Workers that are
provided by the Contractor at the site and frilly consumed in the performance of the Work. Costs of materials, supplies,
temporary facilities, machinery, equipment, and tools, that are not frilly consumed, shall be based on the cost or value
of the item at the time it is first used on the Project site less the value of the item when it is no longer used at the Project
site. Costs for items not fully consumed by the Contractor shall mean fair market value.
5 7.5.2 Rental charges for temporary facilities, machinery, equipment, and hand tools not customarily owned by
construction workers that are provided by the Contractor at the site and the costs of transportation, installation,
dismantling, minor repairs, and removal of such temporary facilities, nrachinery, equipment, and hand tools. Rates and
quantities of equipment owned by the Contractor, or a related party as defined in Section 7.8, The total rental cost of .
any such equipment may not exceed the purchase price of a comparable item.
Q 7.5.3 Costs of removal of debris from the site of the Work and its proper and legal disposal.
Q 7.5.4 Costs of the Contractoris site office, including general oftice equipment and supplies.
5 7.5.5 Costs of materials and equipment suitably stored off the site at a mutually acceptable location, subject to the
Owneris prior approval.
5 7.6 Miscellaneous Costs
Q 7.6.1 Premiums for that portion of insurance and bonds required by the Contract Documents that can be directly
attributed to this Contract.
5 7.6.1.1 Costs for self-insurance, for either full or partial amounts of the coverages required by the Contract
Documents, with the Owneris prior approval. t
Q 7.6.1.2 Costs for insurance through a captive insurer owned or controlled by the Contractor, with the Ownerls prior
approval.
Q 7.6.2 Sales, use, or similar taxes, imposed by a governmental authority, that are related to the Work and for which the
Contractor is liable.
AIA Document M0310 - 2017. Copyright O 2001, 2007 and 2017 by The American Institute otArchiiects. All rights reserved. WARNtNGz This Al/W Document
is protected by U5. Copyright Law and international Treaties. Unauthorized reproduction or distribution ofthis NAG Document, or any portion of it, may
inil.
result in severe civil and crirnirral penalties, and will be prosecuted to the maximum extent possible under the law. This documentwas produced by AIA
6
I software at 11 140155 on 01/26/2018 under Order No.007414357B which expires on 01/03/2019, and is not tor resale.
User Notesz (2003330157)
FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024
5 7.6.3 Fees and assessments for the building permit, and for other pennits, licenses, and inspections, for which the
Contractor is required by the Contract Documents to pay.
Q 7.6.4 Fees of laboratories for tests required by the Contract Documents, except those related to defective or
norrcorrforming Work for which reimbursement is excluded under Article l3 of AIA Document A201-2017 or by
other provisions of the Contract Documents, and which do not fail within the scope of Section 7.7.3.
Q 7.6.5 Royalties and license fees paid for the use of a particular design, process, or product, required by the Contract
Documents.
5 7.6.5.1 The cost of defending suits or claims for infringement of patent rights arising from requirements of the
Contract Documents, payments made in accordance with legal judgments against the Contractor resulting from such
suits or claims, and payments of settlements made with the Owneris consent, unless the Contractor had reason to
believe that the required design, process, or product was an infringement of a copyright or a patent, and the Contractor
failed to promptly funrislr such information to the Architect as required by Article 3 of AIA Document A201-2017.
The costs of legal defenses, judgments, and settlements shall not be included in the Cost of the Work used to calculate
the Contractor-is Fee.
5 7.6.6 Costs for comrnunications services, electronic equipment, and software, directly related to the Work anci
located at the site, with the Owneris prior approval.
5 7.6.7 Costs of document reproductions and delivery charges.
Q 7.6.8 Deposits lost for causes other than the Contractoris negligence or failure to fulfill a specific responsibility in the
Contract Documents.
Q 7.6.9 Legal, mediation and arbitration costs, including attorneys, fees, other than those arising Q-om disputes between
theOwner and Contractor, reasonably incurred by the Contractor after the execution of this Agreement in the
performance of the Work and with the Owneris prior approval, which shall not be unreasonably withheld.
Q 7.6.10 Expenses incurred in accordance with the Contractor-is standard written personnel policy for relocation and
temporary living allowances of the Contractor-is personnel required for the Work, with the Owner-is prior approval.
Q 7.6.11 That portion of the reasonable expenses of the Contractoris supervisory or administrative personnel incurred
while traveling in discharge of duties connected with the Work.
5 7.7 Other Costs and Emergencies
i 5 7.7.1 Other costs incurred in the performance of the Work, .
Q 7.7.2 Costs incurred in taking action to prevent threatened damage, injury, or loss, in case of an emergency affecting
the safety of persons and property, as provided in Article l0 of AIA Document A20 P2017.
5 7.7.3 Costs of repairing or correcting damaged or nonconforming Work executed by the Contractor, Subcontractors,
or suppliers, provided that such damaged or nonconforming Work was not caused by negligence of, or failure to fulfill
a specific responsibility by, the Contractor, and only to the extent that the cost of repair or correction is not recovered
by the Contractor from insurance, sureties, Subcontractors, suppliers, or others.
5 7.8 Related Party Transactions
Q 7.8.1 For purposes of Section 7.8, the term Hr-elated partyll shall mean (1) a parent, subsidiary, affiliate, or other entity
having common ownership of, or sharing common management with, the Contractor, (2) any entity in which any
stockirolder in, or management employee of, the Contractor holds an equity interest in excess of ten percent in the
aggregateg (3) any entity which has the right to control the business or affairs of the Contractor, and (4) any person, or
any member of the immediate family of any person, who has the right to control the business or affairs of the
Contractor.
Q 7.8.2 If any of the costs to be reimbursed arise from a transaction between the Contractor and a related party, the
Contractor shall notify the Owner of the specific nature of the contemplated transaction, including the identity of the
AIA Document A103m -2017. Copyrlghtia 2001, 2007 and 2017 by The American institute otArchiteets. All rights reserved. WARNlNGr This AIAQ Document
n It is protected by U.S. Copyright Law and international Treaties. Unauthorized reproduction or distribution ofthis AIAQ Document, or any portion of ii, may
7
I I
result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the iaw. This document was produced by AIA
/ software at 11140155 on 01/26/2018 under Order No.0O74t43578 which expires on 01/03/2019, and is not for resale.
User Notesz (2003330157)
FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024
related party and the anticipated cost to be incurred, before any such transaction is consummated or cost incurred. If
the Owner, aiier such notification, authorizes the proposed transaction in writing, then the cost incurred shall be
included as a cost to be reimbursed, and the Contractor shall procure the Work, equipment, goods, or service, from the
related party, as a Subcontractor, according to the terms ofAi1icIe I0. If the Owner fails to authorize the transaction in
writing, the Contractor shall procure the Work, equipment, goods, or service from some person or entity other than a
related party according to the terms of Article 10.
ARTICLE 8 COSTS NOT TO BE REIMBURSED
Q 8.1 The Cost of the Work shall not include the items listed belowz
.1 Salaries and other compensation of the Contractorts personnel stationed at the Contractor-is principal
office or offices other than the site office, except as specifically provided in Section 7.2, or as may be
provided in Article 15,
.2 Bonuses, profit sharing, incentive compensation, and airy other discretionary payments, paid to anyone
hired by the Contractor or paid to any Subcontractor or vendor, unless the Owner has provided prior
approval,
.3 Expenses of the Contractorts principal office and offices other than the site office,
.4 Overhead and general expenses, except as may be expressly included in Article 7,
.5 The Contractoris capital expenses, including interest on the Contractor-is capital employed for the
Work,
.6 Except as provided in Section 7.7.3 of this Agreement, costs due to the negligence of, or failure to
fulfill a specific responsibility of the Contract by, the Contractor, Subcontractors, and suppliers, or
anyone directly or indirectly employed by any of them or for whose acts any of them may be liableg and
.7 Any cost not specifically and expressly described in Article 7.
ARTICLE 9 DISCOUNTS, REBATES AND REFUNDS
Q 9.1 Cash discounts obtained on payments made by the Contractor shall accrue to the Owner if (1) before making the
payment, the Contractor included the amount to be paid, less such discount, in an Application for Payment and
received payment from the Owner, or (2) the Owner has deposited funds with the Contractor with which to make
payments, otherwise, cash discounts shall accrue to the Contractor. Trade discounts, rebates, refunds, and amounts
received from sales of surplus materials, and equipment shall accrue to the Owner, and the Contractor shall make
provisions so that they can be obtained.
Q 9.2 Amounts that accrue to the Owner in accordance with the provisions of Section 9.1 shall be credited to the Owner
as a deduction from the Cost of the Work.
ARTICLE 10 SUBCONTRACTS AND OTHER AGREEMENTS
5 10.1 Those portions of the Work that the Contractor does not customarily perform with the Contractoris own
personnel shall be perfonrred under subcontracts or other appropriate agreements with the Contractor. The Owner may
designate specific persons from whom, or entities from which, the Contractor shall obtain bids. The Contractor shall
obtain bids from Subcontractors, and from suppliers of materials or equipment fabricated especially for the Work, who
are qualified to perform that portion of the Work in accordance with the requirements of the Contract Documents.
Q 10.2 Subcontracts or other agreements shall conform to the applicable payment provisions of this Agreement, and
shall be awarded on the basis of a lump sum. .
Q 10.3 The Contractor shall prepare, for the Architectis review and the Ownerls acceptance, a procurement schedule
for items that must he ordered well in advance of construction. The Contractor shall expedite and coordinate the
ordering and delivery of materials that must be ordered well in advance of construction. If the Owner agrees to procure
any items prior to the Owner-is approval of the Control Estimate, the Owner shall procure the items on terms and
conditions acceptable to the Contractor. Upon the Owneris approval of the Control Estimate, the Owner shall assign
all contracts for these items to the Contractor and the Contractor shall thereafter accept responsibility for them.
ARTICLE 11 ACCOUNTING RECORDS
The Contractor shall keep full and detailed records and accounts related to the Cost of the Work, and exercise such
controls, as may be necessary for proper financial management under this Contract and to substantiate all costs
incurred. The accounting and control systems shall be satisfactory to the Owner. The Owner and the Owneris auditors
shall, during regular business hours and upon reasonable notice, be afforded access to, and shall be permitted to audit
AIA Document A103w -2017. Copyrlghtg 2001,2007 and 2017 by The American institute of Architects. Ali rights reserved. WARNiNGz This Ai/W Document
is protected by U,S. Copyright Law and international Treaties. Unauthorized reproduction or distribution of this MAE Document, or any portion of it, may
result in severe civii and criminal penaities, and wiit be prosecuted to the maximum extent possible under the law. This document was produced by AIA
8
soitware at 11140155 on 01/26/2018 under Order No,0074143578 which expires on 01/03/2019, and is not for resale.
User Notesz (2003330157)
FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024
and copy, the Contractor-is records and accounts, including complete documentation supporting accounting entries,
books, job cost reports, correspondence, instructions, drawings, receipts, subcontracts, Subcontractoris proposals,
Subcontractoris invoices, purchase orders, vouchers, memoranda, and other data relating to this Contract. The
Contractor shall preserve these records for a period of three years afier final payment, or for such longer period as may
be required by law.
ARTICLE 12 PAYMENTS
Q 12.1 Progress Payments
Q 12.1.1 Based upon Applications for Payment submitted to the Architect by the Contractor, and Certificates for
Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum, to the
Contractor, as provided below and elsewhere in the Contract Documents.
Q 12.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the
month, or as followsi
Q 12.1.3 Provided that an Application for Payment is received by the Architect not later than the
Sm day of a month, the
Owner shall make payment of the amount certified to the Contractor not later than the 25th day the same month. If an
of
Application for Payment is received by the Architect after the application date fixed above, payment of the amount
certified shall be made by the Owner not later than thirty ( 30 ) days after the Architect receives the Application for
Payment.
(Federal, state or local laws may require payment within a certain period of time.)
Q 12.1.4 With each Application for Payment, the Contractor shall submit the cost control information required
demonstrate that payments already made by the Contractor on account of the Cost of the Work equal or exceed
progress payments already received by the Contractor for the period covered by the present Application for Payment,
less that portion of the progress payments attributable to the Contractoris Fee.
Q 12.1.5 Applications for Payment shall show the Cost of the Work actually incurred by the Contractor through the end
of the period covered by the Application for Payment and for which the Contractor has made or intends to make actual
payment prior to the next Application for Payment.
Q 12.1.6 In accordance with AIA Document A201-2017 and subject to other provisions of the Contract Documents,
the amount of each progress payment shall be computed as followsz
Q 12.1.5.1 The amount of each progress payment shall first includet
.1 The Cost of the Work as described in Article 7,
.2
Preview
FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024 EXHIBIT 12 FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024 i o Document A103w - 2017 if ..-2 ARE -1-its/9 Standard Form of Agreement Between Owner and Contractor where the basis of payment is the Cost of the Work Plus a Fee without a Guaranteed Maximum Price AGREEMENT made as of the Ninth clay of Jauuaiy in the year Two Thousand Eighteen (In words, indicate day, month and year.) ADDITIONS AND DELETIONS2 The author of this document has BETWEEN the Ownerz added information needed for its (Name, legal status, address and other information) completion. The author may also have revised the text of the original SNL Orix Fort Hamilton, LLC AIA standard form. An Additions and 3491-3507 Fort Hamilton Parkway Deletions Report that notes added Brooklyn,NY 11218 intormation as well as revisions to the Telephone Numberz (516) 472-7880 standard form text is available from Fax Numbers (516) 472-7983 the author and should be reviewed. A vertical line in the left margin of this and the Contractorz document indicates where the author has added necessary information (Name, legal status, address and other information) and where the author has added to or deleted from the original AIA text. SNL Construction LLC t 3333 New Hyde Park Road, Suite 200 This document has important legal Lake Success, NY 11042 consequences. Consultation with an Telephone Numbei-I (516) 472-7880 attorney is encouraged with respect Fax Number (516) 472-7983 to its completion or modification. The parties should complete A103TM for the following Projects -2017, Exhibit A, insurance and (Name, location and detailed description) Bonds, contemporaneously with this Agreement. AIA Document A201m- SNL Orix Fort Hamilton, LLC 2017, General Conditions of the 3491-3507 Fort Hamilton Parkway Contract for Construction, is adopted Brooklyn, NY 1 1218 in this document by reference. Do not use with other general conditions The Architect unless this document is modihed. (Name, legal status, address and other information) Frank G. Relf Architect, P.C. 35 Pinelawn Road, Suite il207W Melville, NY 1 1746 Telephone Nulnbert (631) 271-4432 The Owner and Contractor agree as follows. AIA Document M03114 -2017. Copyright(92001, 2007 and 2017 by The American institute of Architects. Ali rights reserved. WARNlNGz This AlA0 Document is protected by U.S. Copyright Law and international Treaties. Unauthorized reproduction or distribution ofthis AIAQ Document, or any portion of it, may result in severe civil and criminal penalties, and witi be prosecuted to the maximum extent possible under the law. This document was produced by AIA 1 soitware at 11259126 on 01/29/2018 under Order No.0074i43578 which expires on 01/03/2019, and is not for resale. User Notest (1347314509) FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024 TABLE OF ARTICLES 1 THE CONTRACT DOCUMENTS 2 THE WORK OF THIS CONTRACT 3 RELATIONSHIP OF THE PARTIES 4 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 5 CONTRACT SUM 6 CHANGES IN THE WORK 7 COSTS TO BE REIMBURSED 8 COSTS NOT TO BE REIMBURSED 9 DISCOUNTS, REBATES AND REFUNDS 10 SUBCONTRACTS AND OTHER AGREEMENTS 11 ACCOUNTING RECORDS 12 PAYMENTS 13 DISPUTE RESOLUTION 14 TERMINATION OR SUSPENSION 15 MISCELLANEOUS PROVISIONS 16 ENUMERATION OF CONTRACT DOCUMENTS EXHIBIT A INSURANCE AND BONDS ARTICLE 1 THE CONTRACT DOCUMENTS The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this Agreement, and Modifications issued aiier execution of this Agreement, all of which form the Contract and are as fully a part of the Contract as if attached to this Agreement or repeated herein, The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. If anything in the other Contract Documents, other than a Modification, is inconsistent with this Agreement, this Agreement shall govern. An enumeration of the Contract Documents, other than a Modification, appears in Article 16. ARTICLE 2 THE WORK OF THIS CONTRACT The Contractor shall fully execute the Work described in the Contract Documents, except as specifically indicated in the Contract Documents to be the responsibility of others. ARTICLE 3 RELATIONSHIP OF THE PARTIES The Contractor accepts the relationship of trust and conidence established by this Agreement and covenants with the Owner to cooperate with the Architect and exercise the Contractorts skill and judgment in furthering the interests of the Ownerg to furnish efficient business administration and supervision, to furnish at all times an adequate supply of workers and materialsg and to perform the Work in an expeditious and economical manner consistent with the industry AIA Document A103m -2011. Copyrlghtto 2001 2007 and 2017 by The American institute ofArchltects. All rights reserved. WARNiNGz This AIAW Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this NAG) Docuruent, or any portion of it, may . 2 result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the taw. This document was produced by AIA software at 11240155 on 01/28/2018 under Order No.0074143578 which expires on 01/03/2019, and is not tor resale. User Notesz (20D3330157) FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024 standards. The Owner agrees to furnish and approve, in a timely manner, information required by the Contractor and to make payments to the Contractor in accordance with the requirements of the Contract Documents. ARTICLE 4 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION Q 4.1 The date of commencement of the Work shall bez i (Check one of the following boxes.) I I The date of this Agreement. I I A date set forth in a notice to proceed issued by the Owner. I 1 Established as followsl (Insert a date or a means to determine the date of commencement of the Work) I X I Upon Receipt of Building Permit If a date of commencement of the Work is not selected, then the date of commencement shall be the date of this Agreement. 5 4.2 The Contract Time shall be measured from the date of commencement of the Work. Q 4.3 Substantial Completion Q 4.3.1 Subject to adjustments of the Contract Time as provided in the Contract Documents, the Contractor shall achieve Substantial Completion of the entire Workt (Check one of the following boxes and complete the necessary information.) I 1 Not later than ( ) calendar days from the date of commencement of the Work. I X 1 By the following datei 620 Calendar days from date of commencement of work 5 4.3.2 Subject to adjustments of the Contract Time as provided in the Contract Documents, if portions of the Work are to be completed prior to Substantial Completion of the entire Work, the Contractor shall achieve Substantial Completion of such portions by the following datesi Portion of Work Substantial Completion Date Q 4.3.3If the Contractor fails to achieve Substantial Completion as provided in this Section 4.3, liquidated damages, if any, shall be assessed as set forth in Section 5.1.6. I ARTICLE 5 CONTRACT SUM 5 5.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractoris performance of the Contract. The Contract Sum is the Cost of the Work as defined in Article 7 plus the Contractor-is Fee. The contract sum as shown on the Control Estimate is NINE MILLION, FIVE HUNDRED NINETY-SIX THOUSAND, NINE HUNDRED FIFTEEN DOLLARS AND SIXTEEN CENTS (S9,596,915.16). 5 5.1.1 The Contractoris Feez (Stare lump sum, percentage of Cost of the Worlg or other provision for determining zr the Contractor is Fee.) 6041 Q 5.1.2 The method of adjustment of the Contractoris Fee for changes in the Workz Cost Plus Fee AIA Document A103m -2017. Copyrightto 2001, 2007 and 2017 by The American Institute oi Architects. All rights reserved. WARNiNGz This At/A9 Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this Aikta Document, or any portion of may It, result in severe civil and criminal penalties, and will he prosecuted to the maximum extent possible under the law. This document was produced by AiA software at 0924158 on 01/31/2018 under Order No.0074143578 which expires on O1/03/2019, and ls not for resale. User Notesz (1366575682) FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024 Q 5.1.3 Limitations, if any, on a Subcontractoris overhead and profit for increases in the cost of its portion of the Workt I 10170 overhead, SM) fee Q 5.1.4 Rental rates for Contractor-owned equipment shall not exceed TEN percent ( 10 ck) of the standard rental rate l paid at the place of the Project. Q 5.1.5 Unit prices, if anyz (Identifv the item and state the unit price and quantity limitations, if any, to which the unit price will be applicable.) item Units and Limitations Price Per Unit (50.00) Q 5.1.6 Liquidated damages, if anyz (Insert terms and conditions for liquidated damages, ifany.) Q 5.1.7 Otherz (Insert provisions for bonus or other incentives, if any, that might result in a change to the Contract Sum.) 5 5.2 Control Estimate 5 5.2.1 The Contractor shall prepare and submit to the Owner, in writing, a Control Estimate within l4 days of executing this Agreement. The Control Estimate shall include the estimated Cost of the Work plus the Contractoris Fee. The Control Estimate shall he used to monitor actual costs and the timely performance of the Work. The Contractor shall update the Control Estimate with each Application for Payment as needed to reflect changes in the Work. Q 5.2.2 The Control Estimate shall include .1 the documents enumerated in Article 16, including all Modifications theretog .2 made by the Contractor in the preparation of the Control Estimate, including a list of the assumptions assumptions under Section 5.2.4, to supplement the information provided by the Owner and contained in the Contract Documents, .3 a statement of the estimated Cost of the Work organized by trade categories or systems and the Contractorls Feeg .4 l 5 5.2.3 The Contractor shall meet with the Owner and Architect to review the Control Estimate. In the event that the Owner or Architect discovers any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Contractor, who shall make appropriate adjustments to the Control Estimate. When the Control Estimate is acceptable to the Owner, the Owner shall acknowledge it in writing. The Owneris acceptance of the Control Estimate does not imply that the Control Estimate constitutes a Guaranteed Maximum Price. Q 5.2.4 To the extent that the Contract Documents are anticipated to require further development, the Contractor shall provide in the Control Estimate for such further development consistent with the Contract Documents and reasonably inferable therefrom. Such further development does not include changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall he incorporated in a revised Control Estimate by mutual agreement of the parties. Q 5.2.5 The Contractor shall develop and implement a detailed system of cost control that will provide the Owner and Architect with timely information as to the anticipated total Cost of the Work. The cost control system shall compare the Control Estimate with the actual cost for activities in progress and estimates for uncompleted tasks and proposed changes. This information shall be reported to the Owner, in Writing, no later than the Contractor-is first Application for Payment and shall be revised and submitted with each Application for Payment. AIA Document A103W - 2011. Copyrlghtg 2001, 2007 and 2017 by The American Institute of Architects. All rights reserved. WARMNG1 This AIAQ Document is protected by U.S. Copyright Law and international Treaties. Unauthorized reproduction or distribution of this MAE DOi1tlmi)I\i, or any portion of it, may lnit. result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA 4 I software at 11140255 on 01/26/2018 under Order No.O074143578 which expires on 01/03/2019, and ls not for resale. User Notesz (2003330157) FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024 Q 5.2.6 The Owner shall authorize preparation of revisions to the Contract Documents that incorporate the agreed-upon assumptions contained in the Control Estimate. The Owner shall promptly furnish such revised Contract Documents to the Contractor. The Contractor shall notify the Owner and Architect of any inconsistencies between the Control Estimate and the revised Contract Documents. ARTICLE 6 CHANGES IN THE WORK Q 6.1 The Owner may, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions. The Owner shall issue such changes in writing. The Architect may make minor changes in the Work as provided in Article 7 of AIA Document A201-M-20 17, General Conditions of the Contract for Construction. The Contractor shall be entitled to an equitable adjustment in the Contract Time as a result of changes in the Work. The Contractor shall incorporate all changes in the Work and Contract Time as separate entries in the Control Estimate. 5 6.2 Increased costs for the items set forth in Article 7 which result from changes in the Work shall become part of the Cost of the Work, and the Contractorls Fee shall be adjusted as provided in Article 5. Q 6.3 If the Contractor receives any drawings, specifications, interpretations or instructions from the Owner or Architect which are inconsistent with the Contract Documents, or encounters unanticipated conditions, any of which will result in a significant change in the Cost of the Work or estimated date of Substantial Completion in comparison with the Control Estimate, the Contractor shall promptly notify the Owner and Architect in writing Q 6.4 If no specific provision is made in Article 5 for adjustment of the Contractoris Fee in the case of changes in the Work, or if the extent of changes is such, in the aggregate, that application of the adjustment provisions of Article 5 will cause substantial inequity to the Owner or Contractor, the Contractoris Fee shall be equitably adjusted on the same basis that was used to establish the Fee for the original Work. ARTICLE 7 COSTS TO BE REIMBURSED Q 7.1 Cost of the Work Q 7.1.1 The term Cost of the Work shall mean costs necessarily incurred by the Contractor in the proper performance of the Work. The Cost of the Work shall include only the items set forth in this Article 7. Q 7.1.2 Where, pursuant to the Contract Documents, any cost is subject to the Owneris prior approval, the Contractor shall obtain such approval in writing prior to incurring the cost. 5 7.1.3 Costs shall be at rates not higher than the standard paid at the place of the Project, . 5 7.2 Labor Costs Q 7.2.1 Wages or salaries of construction workers directly employed by the Contractor to perforrrr the construction of the Work at the site or, . Q 7.2.2 Wages or salaries of the Contractoris supervisory and administrative personnel when stationed at the site and performing Work, . Q 7.2.2.1 Wages or salaries of the Contractorls supervisory and administrative personnel when performing Work and stationed at a location other than the site, but only for that portion of time required for the Work, and limited to the personnel and activities listed belowz (Idenrijfjr the personnel, type of activity rmd, if applicable, any agreed upon percentage of time to be devoted to the Work.) Q 7.2.3 Wages or salaries of the Contractoris supervisory or administrative personnel engaged at factories, workshops or while traveling, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work. AIA Document A1 03w -2017. Copyrlghtte 2001, 2007 and 2017 by The American Institute ofArchliecis. Aii rights reserved. WARNiNGz This AIM) Document is protected by U.S. Copyright Law and international Treaties. Unauthorized reproduction or distribution oi this AIAE DOGUT\1et1l,Dr any portion of it, may init. 5 resuit in severe civil and criminal penalties, and wiii be prosecuted to the maximum extent possible under the law. This document was produced by AIA I software at 11140255 on 01/26/2018 under Order No.0O7/M43578 which expires on 01/03/2019. and is noi for resale. User Notesz (2003330157) FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024 5 7.2.4 Costs paid or incurred by the Contractor, as required by law or collective bargaining agreements, for taxes, insurance, contributions, assessments, and benefits and, for personnel not covered by collective bargaining agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries included in the Cost of the Work under Sections 7.2.1 through 7.2.3. Q 7.2.5 If agreed rates for labor costs, in lieu of actual costs, are provided in this Agreement, the rates shall remain unchanged throughout the duration of this Agreement, unless the parties execute a Modification. 5 7.3 Subcontract Costs Payments made by the Contractor to Subcontractors in accordance with the requirements of the subcontracts and this Agreement. Q 7.4 Costs of Materials and Equipment incorporated in the Completed Construction Q 7.4.1 Costs, including transportation and storage at the site, of materials and equipment incorporated, or to be incorporated in the completed construction. Q 7.4.2 Costs of materials described in the preceding Section 7.4.1 in excess of those actually installed to allow for reasonable waste and spoilage. Unused excess materials, if any, shall become the Ownerls property at the completion of the Work or, at the Owneris option, shall be sold by the Contractor. Any amounts realized from such sales shall be credited to the Owner as a deduction from the Cost of the Work. 5 7.5 Costs of Other Materials and Equipment, Temporary Facilities and Related items Q 7.5.1 Costs of transportation, storage, installation, dismantling, maintenance, and removal of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by construction Workers that are provided by the Contractor at the site and frilly consumed in the performance of the Work. Costs of materials, supplies, temporary facilities, machinery, equipment, and tools, that are not frilly consumed, shall be based on the cost or value of the item at the time it is first used on the Project site less the value of the item when it is no longer used at the Project site. Costs for items not fully consumed by the Contractor shall mean fair market value. 5 7.5.2 Rental charges for temporary facilities, machinery, equipment, and hand tools not customarily owned by construction workers that are provided by the Contractor at the site and the costs of transportation, installation, dismantling, minor repairs, and removal of such temporary facilities, nrachinery, equipment, and hand tools. Rates and quantities of equipment owned by the Contractor, or a related party as defined in Section 7.8, The total rental cost of . any such equipment may not exceed the purchase price of a comparable item. Q 7.5.3 Costs of removal of debris from the site of the Work and its proper and legal disposal. Q 7.5.4 Costs of the Contractoris site office, including general oftice equipment and supplies. 5 7.5.5 Costs of materials and equipment suitably stored off the site at a mutually acceptable location, subject to the Owneris prior approval. 5 7.6 Miscellaneous Costs Q 7.6.1 Premiums for that portion of insurance and bonds required by the Contract Documents that can be directly attributed to this Contract. 5 7.6.1.1 Costs for self-insurance, for either full or partial amounts of the coverages required by the Contract Documents, with the Owneris prior approval. t Q 7.6.1.2 Costs for insurance through a captive insurer owned or controlled by the Contractor, with the Ownerls prior approval. Q 7.6.2 Sales, use, or similar taxes, imposed by a governmental authority, that are related to the Work and for which the Contractor is liable. AIA Document M0310 - 2017. Copyright O 2001, 2007 and 2017 by The American Institute otArchiiects. All rights reserved. WARNtNGz This Al/W Document is protected by U5. Copyright Law and international Treaties. Unauthorized reproduction or distribution ofthis NAG Document, or any portion of it, may inil. result in severe civil and crirnirral penalties, and will be prosecuted to the maximum extent possible under the law. This documentwas produced by AIA 6 I software at 11 140155 on 01/26/2018 under Order No.007414357B which expires on 01/03/2019, and is not tor resale. User Notesz (2003330157) FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024 5 7.6.3 Fees and assessments for the building permit, and for other pennits, licenses, and inspections, for which the Contractor is required by the Contract Documents to pay. Q 7.6.4 Fees of laboratories for tests required by the Contract Documents, except those related to defective or norrcorrforming Work for which reimbursement is excluded under Article l3 of AIA Document A201-2017 or by other provisions of the Contract Documents, and which do not fail within the scope of Section 7.7.3. Q 7.6.5 Royalties and license fees paid for the use of a particular design, process, or product, required by the Contract Documents. 5 7.6.5.1 The cost of defending suits or claims for infringement of patent rights arising from requirements of the Contract Documents, payments made in accordance with legal judgments against the Contractor resulting from such suits or claims, and payments of settlements made with the Owneris consent, unless the Contractor had reason to believe that the required design, process, or product was an infringement of a copyright or a patent, and the Contractor failed to promptly funrislr such information to the Architect as required by Article 3 of AIA Document A201-2017. The costs of legal defenses, judgments, and settlements shall not be included in the Cost of the Work used to calculate the Contractor-is Fee. 5 7.6.6 Costs for comrnunications services, electronic equipment, and software, directly related to the Work anci located at the site, with the Owneris prior approval. 5 7.6.7 Costs of document reproductions and delivery charges. Q 7.6.8 Deposits lost for causes other than the Contractoris negligence or failure to fulfill a specific responsibility in the Contract Documents. Q 7.6.9 Legal, mediation and arbitration costs, including attorneys, fees, other than those arising Q-om disputes between theOwner and Contractor, reasonably incurred by the Contractor after the execution of this Agreement in the performance of the Work and with the Owneris prior approval, which shall not be unreasonably withheld. Q 7.6.10 Expenses incurred in accordance with the Contractor-is standard written personnel policy for relocation and temporary living allowances of the Contractor-is personnel required for the Work, with the Owner-is prior approval. Q 7.6.11 That portion of the reasonable expenses of the Contractoris supervisory or administrative personnel incurred while traveling in discharge of duties connected with the Work. 5 7.7 Other Costs and Emergencies i 5 7.7.1 Other costs incurred in the performance of the Work, . Q 7.7.2 Costs incurred in taking action to prevent threatened damage, injury, or loss, in case of an emergency affecting the safety of persons and property, as provided in Article l0 of AIA Document A20 P2017. 5 7.7.3 Costs of repairing or correcting damaged or nonconforming Work executed by the Contractor, Subcontractors, or suppliers, provided that such damaged or nonconforming Work was not caused by negligence of, or failure to fulfill a specific responsibility by, the Contractor, and only to the extent that the cost of repair or correction is not recovered by the Contractor from insurance, sureties, Subcontractors, suppliers, or others. 5 7.8 Related Party Transactions Q 7.8.1 For purposes of Section 7.8, the term Hr-elated partyll shall mean (1) a parent, subsidiary, affiliate, or other entity having common ownership of, or sharing common management with, the Contractor, (2) any entity in which any stockirolder in, or management employee of, the Contractor holds an equity interest in excess of ten percent in the aggregateg (3) any entity which has the right to control the business or affairs of the Contractor, and (4) any person, or any member of the immediate family of any person, who has the right to control the business or affairs of the Contractor. Q 7.8.2 If any of the costs to be reimbursed arise from a transaction between the Contractor and a related party, the Contractor shall notify the Owner of the specific nature of the contemplated transaction, including the identity of the AIA Document A103m -2017. Copyrlghtia 2001, 2007 and 2017 by The American institute otArchiteets. All rights reserved. WARNlNGr This AIAQ Document n It is protected by U.S. Copyright Law and international Treaties. Unauthorized reproduction or distribution ofthis AIAQ Document, or any portion of ii, may 7 I I result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the iaw. This document was produced by AIA / software at 11140155 on 01/26/2018 under Order No.0O74t43578 which expires on 01/03/2019, and is not for resale. User Notesz (2003330157) FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024 related party and the anticipated cost to be incurred, before any such transaction is consummated or cost incurred. If the Owner, aiier such notification, authorizes the proposed transaction in writing, then the cost incurred shall be included as a cost to be reimbursed, and the Contractor shall procure the Work, equipment, goods, or service, from the related party, as a Subcontractor, according to the terms ofAi1icIe I0. If the Owner fails to authorize the transaction in writing, the Contractor shall procure the Work, equipment, goods, or service from some person or entity other than a related party according to the terms of Article 10. ARTICLE 8 COSTS NOT TO BE REIMBURSED Q 8.1 The Cost of the Work shall not include the items listed belowz .1 Salaries and other compensation of the Contractorts personnel stationed at the Contractor-is principal office or offices other than the site office, except as specifically provided in Section 7.2, or as may be provided in Article 15, .2 Bonuses, profit sharing, incentive compensation, and airy other discretionary payments, paid to anyone hired by the Contractor or paid to any Subcontractor or vendor, unless the Owner has provided prior approval, .3 Expenses of the Contractorts principal office and offices other than the site office, .4 Overhead and general expenses, except as may be expressly included in Article 7, .5 The Contractoris capital expenses, including interest on the Contractor-is capital employed for the Work, .6 Except as provided in Section 7.7.3 of this Agreement, costs due to the negligence of, or failure to fulfill a specific responsibility of the Contract by, the Contractor, Subcontractors, and suppliers, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liableg and .7 Any cost not specifically and expressly described in Article 7. ARTICLE 9 DISCOUNTS, REBATES AND REFUNDS Q 9.1 Cash discounts obtained on payments made by the Contractor shall accrue to the Owner if (1) before making the payment, the Contractor included the amount to be paid, less such discount, in an Application for Payment and received payment from the Owner, or (2) the Owner has deposited funds with the Contractor with which to make payments, otherwise, cash discounts shall accrue to the Contractor. Trade discounts, rebates, refunds, and amounts received from sales of surplus materials, and equipment shall accrue to the Owner, and the Contractor shall make provisions so that they can be obtained. Q 9.2 Amounts that accrue to the Owner in accordance with the provisions of Section 9.1 shall be credited to the Owner as a deduction from the Cost of the Work. ARTICLE 10 SUBCONTRACTS AND OTHER AGREEMENTS 5 10.1 Those portions of the Work that the Contractor does not customarily perform with the Contractoris own personnel shall be perfonrred under subcontracts or other appropriate agreements with the Contractor. The Owner may designate specific persons from whom, or entities from which, the Contractor shall obtain bids. The Contractor shall obtain bids from Subcontractors, and from suppliers of materials or equipment fabricated especially for the Work, who are qualified to perform that portion of the Work in accordance with the requirements of the Contract Documents. Q 10.2 Subcontracts or other agreements shall conform to the applicable payment provisions of this Agreement, and shall be awarded on the basis of a lump sum. . Q 10.3 The Contractor shall prepare, for the Architectis review and the Ownerls acceptance, a procurement schedule for items that must he ordered well in advance of construction. The Contractor shall expedite and coordinate the ordering and delivery of materials that must be ordered well in advance of construction. If the Owner agrees to procure any items prior to the Owner-is approval of the Control Estimate, the Owner shall procure the items on terms and conditions acceptable to the Contractor. Upon the Owneris approval of the Control Estimate, the Owner shall assign all contracts for these items to the Contractor and the Contractor shall thereafter accept responsibility for them. ARTICLE 11 ACCOUNTING RECORDS The Contractor shall keep full and detailed records and accounts related to the Cost of the Work, and exercise such controls, as may be necessary for proper financial management under this Contract and to substantiate all costs incurred. The accounting and control systems shall be satisfactory to the Owner. The Owner and the Owneris auditors shall, during regular business hours and upon reasonable notice, be afforded access to, and shall be permitted to audit AIA Document A103w -2017. Copyrlghtg 2001,2007 and 2017 by The American institute of Architects. Ali rights reserved. WARNiNGz This Ai/W Document is protected by U,S. Copyright Law and international Treaties. Unauthorized reproduction or distribution of this MAE Document, or any portion of it, may result in severe civii and criminal penaities, and wiit be prosecuted to the maximum extent possible under the law. This document was produced by AIA 8 soitware at 11140155 on 01/26/2018 under Order No,0074143578 which expires on 01/03/2019, and is not for resale. User Notesz (2003330157) FILED: KINGS COUNTY CLERK 04/15/2024 03:51 PM INDEX NO. 504378/2019 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 04/15/2024 and copy, the Contractor-is records and accounts, including complete documentation supporting accounting entries, books, job cost reports, correspondence, instructions, drawings, receipts, subcontracts, Subcontractoris proposals, Subcontractoris invoices, purchase orders, vouchers, memoranda, and other data relating to this Contract. The Contractor shall preserve these records for a period of three years afier final payment, or for such longer period as may be required by law. ARTICLE 12 PAYMENTS Q 12.1 Progress Payments Q 12.1.1 Based upon Applications for Payment submitted to the Architect by the Contractor, and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum, to the Contractor, as provided below and elsewhere in the Contract Documents. Q 12.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as followsi Q 12.1.3 Provided that an Application for Payment is received by the Architect not later than the Sm day of a month, the Owner shall make payment of the amount certified to the Contractor not later than the 25th day the same month. If an of Application for Payment is received by the Architect after the application date fixed above, payment of the amount certified shall be made by the Owner not later than thirty ( 30 ) days after the Architect receives the Application for Payment. (Federal, state or local laws may require payment within a certain period of time.) Q 12.1.4 With each Application for Payment, the Contractor shall submit the cost control information required demonstrate that payments already made by the Contractor on account of the Cost of the Work equal or exceed progress payments already received by the Contractor for the period covered by the present Application for Payment, less that portion of the progress payments attributable to the Contractoris Fee. Q 12.1.5 Applications for Payment shall show the Cost of the Work actually incurred by the Contractor through the end of the period covered by the Application for Payment and for which the Contractor has made or intends to make actual payment prior to the next Application for Payment. Q 12.1.6 In accordance with AIA Document A201-2017 and subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as followsz Q 12.1.5.1 The amount of each progress payment shall first includet .1 The Cost of the Work as described in Article 7, .2