This Agreement, made as of the 3rd day of NOVEMBER in the year 2000 by and
between XXXXXX CONSTRUCTION COMPANY, a New York Corporation, thereinafter called
XXXXXX and TRADE WINDS ENVIRONMENTAL RESTORATION INC., A NEW YORK CORPORATION,
WITH OFFICES LOCATED AT 000 XXXXXXXXXXX XXXXXX, XXX XXXXX, XXX XXXX 00000
(hereinafter called the "Subcontractor").
HEREWITH, that the Subcontractor and Xxxxxx agree as follows:
Description of Work
ARTICLE I. The Subcontractor shall perform and furnish all the work, labor,
services, materials, plant equipment, tools, scaffolds, appliances and other
things necessary for THE SPECIFIC MOLD AND MILDEW REMEDIATION WORK MORE FULLY
DESCRIBED HEREIN (hereinafter called the "Work"), for and at the BEAR XXXXXXX
BUILDING, (hereinafter called the "Project"), located on premises at 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxx, (hereinafter called the "Premises"), as described
in and in strict accordance with the provisions of pages 3A-3F, and with the
terms and provisions of the "general contract" (hereinafter called the ("General
Contract"), between Xxxxxx and BRADIRK 383 ASSOCIATES LLC, D/B/A 383 MADISON
VENTURE, THE DEVELOPMENT MANAGER (HEREINAFTER CALLED "DEVELOPMENT MANAGER"). AS
AGENT FOR XXXXXXX/MADISON AVENUE LLC (HEREINAFTER CALLED "OWNER") dated November
16, 1998 and in strict accordance with the Additional Provisions page(s) 3A, 3B,
3C, 3D, 3E and 3F. [See Rider I]
Contract Documents
ARTICLE II. As it relates to this subcontractor's responsibility, the
Plans, Specifications, General Conditions, Special Conditions, Addenda and
General Contract hereinabove mentioned, are available for examination by the
Subcontractor at all reasonable times at the office of Xxxxxx, all of the
aforesaid, including this Agreement, being hereinafter sometimes referred to as
the Contract Documents. The Subcontractor represents and agrees that it has
carefully examined and understands this Agreement and the other Contract
Documents has investigated the nature, locality and site of the Work and the
conditions and difficulties under which it is to be performed and that it enters
into this agreement on the basis of its own examination, investigation and
evaluation of all such matters and not in reliance upon any options or
representations of Xxxxxx, or of the Development Manager or Owner, or of any of
their respective officers, agents, servants or employees. Xxxxxx represents that
there is nothing in this subcontractors agreement that conflicts with items
contained in any other contract documents pertaining to this project. [See Rider
II]
With respect to the Work to be performed and furnished by the Subcontractor
hereunder, the Subcontractor agrees to be bound to Xxxxxx by each and all of the
terms and provisions of the General Contract and the other Contract Documents,
and to assume toward Xxxxxx all of the duties, obligations and responsibilities
that Xxxxxx by those Contract Documents assumes toward the Development Manager
and the Owner, and the Subcontractor agrees further that Xxxxxx shall have the
same rights and remedies as against the Subcontractor as the Development Manager
and Owner under the terms and provisions of the General Contract and the other
Contract Documents has against Xxxxxx with the same force and effect as though
every such duty, obligation, responsibility, right or remedy were set forth
herein in full. The terms and provisions of this Agreement with respect to the
Work to be performed and furnished by the Subcontractor hereunder is intended to
be and shall be in addition to and not in substitution for any of the terms
and provisions of the General Contract and the other Contract Documents.
This Subcontract Agreement, the provisions of pages 3A - 3F, the provisions
of the General Contract and the other Contract Documents are intended to
supplement and compliment each other and shall, where possible, be thus
interpreted. If, however, any provision of the Subcontract Agreement
irreconcilably conflicts with a provision of the General Contract, the
provisions of pages 3A - 3F and the other Contract Documents, the provisions of
pages 3A - 3F shall first control, then the provisions of this Subcontract
Agreement shall control, and then the provisions of the General Contract shall
control.
The parties recognize that problems and disputes between them may occur and
that it is practicable for them to reach an amicable resolution of same without
the need to resort to formal dispute resolution procedures. In that regard, any
such pledge to participate in good faith in voluntary and non-binding
Alternative Dispute Resolution (ADR) procedures. However, in the event that such
disputes are not resolved by mediation or another ADR procedure as Xxxxxx and
the Subcontractor may agree then such disputes shall be resolved at Xxxxxx'x
sole option either in the manner and forum pursuant to which disputes between
the Development Manager and Owner and Xxxxxx are to be resolved under the terms
of the General Contract or according to law. Furthermore, the Subcontractor
agrees that Xxxxxx shall have the exclusive right to join the Subcontractor as a
party in any dispute resolution procedure (including without limitation ADR
procedures, binding arbitration or other judicial or non-judicial proceeding)
between the Development Manager and Owner and Xxxxxx together with such other
subcontractors or parties as may be appropriate, where in the judgment of Xxxxxx
the issues in dispute are related to the work or performance of the
Subcontractor. Furthermore, the Subcontractor expressly agrees to waive its
right to trial by jury in case Xxxxxx elects to resolve the dispute in
litigation.
ARTICLE III. The Subcontractor shall commence the Work when notified to do
so by Xxxxxx and shall diligently and continuously proceed and complete the Work
and coordinate the Work with the other work being performed on the Project. In
accordance with most project schedules as may be issued from time to time during
the performance of the Work and any other scheduling requirements listed in this
Agreement so as not to delay, impede, obstruct, hinder or infringe with the
commencement, progress or completion of the whole or any part of the Work or
other Work on the Project.
-1-
The Subcontractor shall participate and cooperate in the development of
schedules and other efforts to achieve timely completion of the Work providing
information for the scheduling of the times and sequence of operations required
for the Work to meet Xxxxxx'x overall schedule requirements, shall continuously
monitor the project schedule so as to be fully familiar with the timing, phasing
and sequence of operations of the Work or any other work on the Project, and
shall execute the Work in accordance with the requirements of the project
schedule including any revisions thereto.
Should the progress of the Work or of the Project to be delayed, disrupted,
hindered, obstructed, or interfered with by any fault or neglect or act or
failure to act of the Subcontractor or any of its officers, agents, servants,
employees, subcontractors or suppliers so as to cause any additional cost,
expense, liability or damage to Xxxxxx including legal fees and disbursements
incurred by Xxxxxx (whether incurred in defending claims arising from such delay
or in seeking reimbursement and indemnity from the Subcontractor and its surety
hereunder or otherwise) or to the Development Manager or to Owner or any damages
or additional costs or expenses for which Xxxxxx or the Development Manager or
the Owner may or shall become liable, the Subcontractor and its surety shall and
does hereby agree to compensate Xxxxxx, the Development Manager and Owner for
and indemnify them against all such costs, expenses, damages and liability.
Xxxxxx, if it deems necessary, may direct the Subcontractor to work
overtime and if so directed, the Subcontractor shall work said overtime and,
provided that the Subcontractor is not in default under any of the terms or
provisions of this Agreement or of any of the other Contract Documents, Xxxxxx
will pay the Subcontractor for such actual additional wages paid, if any, at
rates which have been approved by Xxxxxx plus taxes imposed by law on such
additional wages, plus worker's compensation insurance, liability insurance and
levies on such additional wages if required to be paid by the Subcontractor.
If, however, the progress of the Work or of the Project be delayed by any
fault or neglect or act or failure to act of the Subcontractor or any of its
officers, agents, servants, employees, subcontractors or suppliers, then the
Subcontractor shall, in addition to all of the other obligations imposed by this
Agreement upon the Subcontractor in such case, and at its own cost and expense,
work such overtime as may be necessary to make up for all time lost in the
completion of the Work and of the Project due to such delay. Should the
Subcontractor fail to make up for the time lost by reason of such delay, Xxxxxx
shall have the right to require other Subcontractors to work overtime and to
take whatever other action it deems necessary to avoid delay in the completion
of the Work and of the Project and the cost and expense of such overtime and/or
such other action shall be borne by the Subcontractor. [Add Rider X (page 3F)
here]
Price
ARTICLE IV. The sum to be paid by Xxxxxx, out of funds received from The
Development Manager or Owner to the Subcontractor for the satisfactory
performance and completion of the Work and of all of the duties, obligations and
responsibilities of the Subcontractor under this Agreement and the other
Contract Documents shall be UNIT RATE NOT TO EXCEED FOUR MILLION ($4,000,000)
DOLLARS (the "Maximum Unit Rate") UNIT RATES IS IN ACCORDANCE WITH THE ATTACHED
PAGE (hereinafter called the Price) subject to additions and deductions as
herein provided. [Insert Rider Y (page 3F) here]
It is specifically understood and agreed that the Subcontractor and Xxxxxx
acknowledge that there is a risk that the Development Manager or Owner, in
breach of the contract with Xxxxxx, may make late payments or may, under certain
circumstances such as insolvency, not make required payments to Xxxxxx. The
parties furthermore acknowledge their agreement that they shall share the risk
of same. As a consequence of the foregoing understanding and consistent with
that allocation of risk, the Subcontractor agrees that Xxxxxx'x receipt of
payment from the Development Manager or Owner on behalf of the Subcontractor's
requisitions for payment (whether interim requisitions or final requisitions
including [illegible]) shall be, to the fullest extent provided by law, a
condition precedent to the right of the Subcontractor to receive payment from
Xxxxxx. In the event that Xxxxxx is not receiving proper payment from the
Development Manager or Owner on account of the Work of the Subcontractor such
that Xxxxxx is not required to make payment to the Subcontractor hereunder,
Xxxxxx may in its sole discretion and to the extent it is legally able to do so,
formally and in writing assign to the Subcontractor the right of Xxxxxx to
pursue claims against the Owner for the payment due to Xxxxxx on behalf of the
Subcontractors's entitlement under the terms of the Subcontract, which
assignment Subcontractor shall be obliged to accept in full and complete
liquidation of the obligations to payment of Xxxxxx to Subcontractor hereunder.
The parties further acknowledge that the Subcontractor is entitled to pursue any
and all rights to which it may be entitled under the New York Lien Law in the
event that Xxxxxx does not pay the Subcontractor amounts due hereunder,
including non-payment resulting from delayed payments or non-payment by the
Development Manager or Owner to Xxxxxx. To the extent that this clause is
inconsistent with such lien rights, this clause is deemed waived for such
purpose only. In the event that Xxxxxx advises Subcontractor that Xxxxxx is
unable to pay Subcontractor by reason of the Development Manager's or Owner's
non-payment to Xxxxxx, Subcontractor agrees that the filing of a lien in full
accordance with the Lien Law and the complete prosecution of that lien claim to
finality in the courts, and collection therefrom, for the amount due to it shall
be a condition precedent to the right of the Subcontractor to file an action in
law or equity against Xxxxxx or its surety in connection with the project.
Further, nothing herein shall be deemed to subrogate or waive the
Subcontractor's right to the claims against Xxxxxx'x sureties, if any. In the
event that Subcontractor files a claim against any or all of Xxxxxx'x sureties,
Subcontractor agrees to stay any proceedings against Xxxxxx'x sureties pending
the resolution of its mechanic's lien action to finality in the courts,
including collection therefrom. Furthermore, nothing herein is intended to limit
or preclude the rights of the Contractor under other terms of this Subcontract
to backcharges, set-offs or other claims against the Subcontractor in regard to
the matters addressed in this Clause or otherwise.
Except as set forth in the provisions on pages 3A-3F, the Price includes
all Federal, State, County, Municipal and other taxes imposed by law and based
upon labor, services, materials, equipment or other items required, performed,
furnished or used for and in connection with the Work including but not limited
to sales, use and personal property taxes payable by or levied or assessed
against the Owner, Xxxxxx or the Subcontractor. Where the law requires any such
taxes to be stated and charged separately, the total price of all items included
in the Work plus the amount of such taxes shall not exceed the Price.
-2-
Monthly Estimate
On or before the last day of each month the Subcontractor shall submit to
Xxxxxx, in the form required by Xxxxxx, a written requisition for payment
showing the proportionate value of the Work installed to that date, from which
shall be deducted a reserved five per cent (5%), all previous payments and all
charges for services, materials, equipment and other items furnished by Xxxxxx
to or chargeable to the Subcontractor, and the balance of the amount of such
requisition, as approved by Xxxxxx and the [illegible] and for which payment has
been received by Xxxxxx from the Development Manager or Owner, shall be due and
paid to the Subcontractor on or about the fifteenth (15th) day of the succeeding
month or in accordance with the Contract Documents.
The obligation of Xxxxxx to make a payment under this Agreement, whether a
progress or final payment, or for extras or charge orders or delays to the Work,
is subject to the express condition precedent of payment therefor by the
Development Manager or Owner. If Xxxxxx has provided payment or performance
bonds or a combination payment and performance bond, the obligation of Xxxxxx
and its surety under any of these bonds to make any payment (whether a progress
payment or final payment) to a claimant on that bond is similarly subject to the
express condition precedent of payment therefor by the Development Manager or
Owner.
The Subcontractor shall submit with its first requisition for payment a
detailed schedule showing the breakdown of the Price into its various parts for
use only as a basis of checking the Subcontractor's monthly requisitions.
Xxxxxx reserves the right to advance the date of any payment (including the
final payment) under this Agreement if, in its sole judgment, it becomes
desirable to do so.
The Subcontractor agrees that, if and when requested to do so by Xxxxxx, it
shall furnish such information, evidence and substantiation as Xxxxxx may
require with respect to the nature and extent of all obligations incurred by the
Subcontractor for or in connection with the Work, or payments made by the
Subcontractor thereon and the monies remaining unpaid, to whom and the reasons
therefor.
Final Payment
Final payment to the Subcontractor shall be within 30 days of substantial
completion of the Work.
Payments
If any claim or lien is made or filed with or against Xxxxxx, the Owner,
the Project, the Premises or the Project funds by any person claiming that the
Subcontractor or any subcontractor or other person under subcontract has failed
to make payment for any labor, services, materials, equipment, taxes or other
items or obligations furnished or incurred for or in connection with the Work,
or if at any time there shall be evidence of such nonpayment or of any claim or
lien for which, if established, Xxxxxx or the Development Manager or Owner might
become liable and which is chargeable to the Subcontractor, or if the
Subcontractor or any subcontractor or other person under subcontract causes
damage to the Work or to any other work on the Project, or if the Subcontractor
fails to perform or is otherwise in default under any of the terms or provisions
of this Agreement, Xxxxxx shall have the right to retain from any payment then
due or thereafter to become due an amount which it deems sufficient to (1)
satisfy, discharge and/or defend against any such claim or lien or any action
which may be brought or judgment which may be recovered thereon, (2) make good
any such nonpayment, damage, failure or default, and (3) compensate Xxxxxx and
the Development Manager or Owner for and indemnify and hold them harmless
against any and all losses, liability, damages, costs and expenses, including
legal fees and disbursements, which may be sustained or incurred by either or
both of them in connection therewith. Xxxxxx shall have the right to apply and
charge against the Subcontractor so much of the amount retained as may be
required for the foregoing purposes. If the amount is insufficient therefor, the
Subcontractor shall be liable for the difference and pay the same to Xxxxxx.
Payments and Non Acceptance
No payment (final or otherwise) made under or in connection with this
Agreement shall be conclusive evidence of the performance of the Work or of the
Agreement, in which or in part, and no such payment shall be construed to be an
acceptance of defective, faulty or improper work or materials nor shall it
release the Subcontractor from any of its obligations under this Agreement, nor
shall entrance and use by the Owner, or any Designee of Owner constitute
acceptance of the Work of any part thereof.
-3-
November 8, 2000 000 Xxxxxxx Xxxxxx Xxxxxxx
Xxx Xxxx, XX
Contract No. 6411A
--------------------------
Mold & Mildew Remediation
GENERAL PROVISIONS:
------------------
This Subcontract shall provide for the furnishing of all labor, materials,
engineering, equipment, tools, supervision, hoisting, rigging, scaffolding
overhead, taxes, etc., as they become necessary for the performance of all Mold
and Mildew Remediation Work for the 000 Xxxxxxx Xxxxxx Project in accordance
with the following Contract Documents and the Additional Information stated
herein:
CONTRACT DOCUMENTS:
------------------
AS PREPARED BY XXXXXX:
---------------------
None.
AS PREPARED BY THE ARCHITECT:
----------------------------
None.
ADDITIONAL PROVISIONS/SCOPE:
---------------------------
It is understood and agreed that all work performed under this Contract
will be in strict accordance with the information reflected in the Contract
Documents listed in page 3A of this Contract and the following
amplifications and clarifications which shall supersede the information
listed in page 3A if a conflict arises.
1. Pricing for night and weekend work:
----------------------------------
Laborer, first 8 hours per shift $67.50 per hour plus tax
Supervisor, first 8 hours per shift $75.00 per hour plus tax
Project Management, as required,
first 8 hours per shift $85.00 per hour plus tax
Principal, as required,
first 8 hours per shift $150.00 per hour plus tax
Personnel Protective Equipment
(Masks, Filters, Suits, etc.) $25.00 per man-day plus tax
Microban, or similar Biocide $40.00 per gallon plus tax
Lock-down encapsulant with Biocide $44.00 per 5-gallon pail plus tax
Materials: Poly, tape, bags, etc. $Cost plus 21% plus tax
Equipment including HEPA vacs,
scaffold, airless sprayers, etc. $Blue Book costs plus 21% tax
2. Man hours and materials used to be verified daily through Trade Wind's
reports which must be signed by a Xxxxxx Staff Member.
3. Trade Winds to submit requisitions every two weeks to Xxxxxx. Payment on
requisitions to thirty days after requisition approval by Xxxxxx and Bear
Xxxxxxx.
4. Trade Winds to be covered under project O.C.I.P. Trade Winds to submit
Two Million Dollars Automobile Insurance.
5. Costs for stand-by trades and rubbish removal are excluded.
6. No finance charges are included in this contract.
7. This contract includes multiple obligee bonds on Xxxxxx bond forms for
Performance and Labor and Material.
-3A-
8. This contract includes zero retention.
-3B-
Exhibit A
[Trade-Winds Logo]
PROPOSAL
No. 00-02509B
To: Xx. Xxxx Xxxxxxxx
Xxxxxx Construction Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX
Date: Nov. 3, 2000
Re: Bear Xxxxxxx Headquarters, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX
Dear Xx. Xxxxxxxx:
Trade-Winds Environmental Restoration, Inc. is pleased to provide you with
a proposal for services. The following is a brief description of the work, our
proposed schedule and associated fees. If you should have any questions
regarding this proposal, please contact this office.
Trade-Winds shall supply all supervision, labor, materials, and equipment
required to decontaminate visibly moldy sheetrock as outlined in the Xxxxxxx
Environmental Report for the above referenced location. Trained Union personnel
(Local 78) shall perform all work in accordance with Federal and State
regulations. Hygienatics will approve methodologies for clean up, which will be
developed and revised on a case-by-case basis.
Pricing for Night and Weekend Work:
Laborer, first 8 hours per shift: $67.50 per hour plus tax
Supervisor, first 8 hours per shift: $75.00 per hour plus tax
Project Management, as required,
first 8 hours per shift: $85.00 per hour plus tax
Principal, as required, first 8 hours per shift: $150.00 per hour plus tax
Personnel Protective Equipment
(masks, filters, suits, etc.): $25.00 per man-day plus tax
Microban, or similar Biocide: $40.00 per gallon plus tax
Lock-down encapsulant with Biocide: $44.00 per 5-gallon pail plus tax
Materials: poly, tape, bags, etc.: $Cost plus 21% plus tax
Equipment: including HEPA vacs, scaffold,
airless prayers, etc.: $Blue Book cost plus 21% plus tax
This is a Time and Materials Subcontract
Tax will be added unless a Certificate of Capital Improvement on Tax Exempt form
is filed with this office prior to the start of this project.
-3C-
Proposal No. 00-02509B
Page 2
Notes:
Price assumes electric and water are available on site and will be provided free
of charge. All stand-by trades are excluded from our scope. Pricing assumes that
Trade-Winds shall be included under the OCIP, and therefore excludes any and all
insurance costs. We shall work a total of nine 11-hours shifts (10 working hours
with a one hour lunch) per week as follows: Monday through Sunday evenings (7
shifts) and Saturday and Sunday days (2 shifts). We estimate that all work shall
be completed as per the above scope within 4 (four) months. All work after 8
hours per day or 40 hours per week per laborer, supervisor or management will be
billed at time and one half. Principal - Xxxxxxx X'Xxxxxx - Project Manager -
Xxxx Xxxxxxx, or management will be billed at time and one half. Principal -
Xxxxxxx X'Xxxxxx, Project Manager - Xxxx.
Terms: All invoices are due paid within 30 days. Due to the scope of this
project we shall invoice every two weeks.
Trade-Winds shall provide dual-obligee Payment and Performance bonds in a form
to be specified by Xxxxxx Construction. Trade-Winds' work will be evaluated by
Young Laboratories, Hygienatics and Xxxxxx Construction.
We appreciate the opportunity to provide pricing for the above referenced work.
Should you have any questions or concerns, please do not hesitate to contract
me.
Very truly yours,
/s/ Xxxxxxx X'Xxxxxx
Xxxxxxx X'Xxxxxx, President
Trade-Winds Environmental Restoration, Inc.
Please incorporate this proposal into the final form of Sub Contract.
-3D-
11/9/00
Rider 1
The Subcontractor is being engaged to provide services (the "Work") related
to the decontamination of designed areas ("Work Areas") determined to contain
mold on certain installed gypsum wallboard materials located at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, XX (the "Project") owned by Xxxxxxx/Madison LLC (the "Owner")
in accordance with the proposal dated November 2, 2000 prepared by the
Subcontractor, a copy of which is attached as Exhibit A hereto, which Xxxxxx
hereby accepts, is incorporated herein by reference and constitutes an integral
part of this Agreement (the "Proposal"). Should any provisions of this Agreement
conflict with provisions contained in the Proposal, the provisions in the
Proposal shall control.
The Subcontractor shall prepare a Preliminary Work Plan - Means and Methods
document (the "Work Plan"). Subcontractor and Xxxxxx agree and understand that
Owner has hired Hygienactics Environmental Services Inc. (the "Quality Control
Supervisor") to work with Subcontractor to review and approve the methodologies
and scope of the Work. Subcontractor's only responsibilities hereunder shall be
to perform, in all material respects, the services set forth in the Work Plan,
as approved by the Quality Control Supervisor. Subcontractor agrees to perform
the Work within the scope of the Work Plan, as approved by the Quality Control
Supervisor, and acknowledges that it shall be liable for any material deviations
from such Work Plan. Subcontractor shall not be liable to Xxxxxx or Owner for
any Work not designated in the Work Areas or specified in the Work Plan, as
approved by the Quality Control Supervisor, or for any Work which Subcontractor
is not reasonably able to perform.
Rider 2
Payment for all services rendered by Subcontractor shall be made pursuant
to the terms of the Proposal. Xxxxxx acknowledges and agrees that this Agreement
is a time and materials subcontract and that there is no fixed limit on the
amount of actual costs which may be reasonably incurred in connection with the
Project. The Subcontractor shall provide weekly projections ("Estimates") by
5:00 P.M. on Wednesday of each week until completion of the Work identifying (a)
the estimated cost of the Work for the next 7 day period which shall be defined
as beginning at 6:00 A.M. Saturday of each week of Work, and (b) a weekly
revised estimate of the projected total cost of the Work. It is understood by
the Subcontractor and Xxxxxx that the submitted estimates shall not limit the
amount of actual costs.
Rider 3
Notwithstanding anything to the contrary, Subcontractor shall not be liable
to Xxxxxx, Owner or any other person or entity for any claims, losses,
liabilities or damages caused, arising or occurring as a result of
Subcontractor's performance of the Work as approved by the Quality Control
Supervisory, except for Subcontractor's negligence in the performance thereof.
Without limiting the generality of the foregoing. Subcontractor shall not be
liable to Xxxxxx, Owner or any other person or entity for damages to person or
property caused, arising or occurring as a result of mold or related problems,
for which Subcontractor has been retained hereunder if Subcontractor has
performed, in all material respects, its duties as approved by the Quality
Control Supervisor.
-3E-
Rider X
Notwithstanding anything contained in this Agreement to the contrary, Xxxxxx and
Subcontractor acknowledge and agree that the nature of the work to be performed
by Subcontractor under this Agreement necessarily involves a certain amount of
interference with the progress and completion of other work on the Project and
that the timing of the completion of the Work cannot be guaranteed by the
Subcontractor. Subcontractor shall use commercially reasonable efforts to
perform the Work in accordance with Xxxxxx'x overall scheduling requirements so
as to not unreasonably interfere with the progress and completion of the other
work on the Project. Xxxxxx acknowledges and agrees that, to that extent that
Subcontractor uses such commercially reasonable efforts, Subcontractor shall not
have any liability to Xxxxxx, Development Manager, Owner or any other party for
any delays in the completion of the Work or any delays or interference with the
progress or completion of other work on the Project.
Rider Y
Notwithstanding anything to the contrary contained in this Article IV, if the
sum to be paid by Xxxxxx to the Subcontractor for the satisfactory performance
and completion of the Work and of all duties, obligations and responsibilities
under this Agreement is likely to exceed the Maximum Unit Rate, such Maximum
Unit Rate may be increased provided that the Subcontractor provides Xxxxxx with
an estimate of such overage within a reasonable time prior to exceeding the
Maximum Unit Rate.
-3F-
Extension of Time
ARTICLE V. Should the Subcontractor be delayed, obstructed, hindered or
interfered with in the commencement, prosecution or completion of the Work by
any cause including but not limited to any act, omission, neglect, negligence or
default of Xxxxxx or of anyone employed by Xxxxxx or by any other contractor or
subcontractor on the Project, or by the Architect, Owner or their contractors,
subcontractors, agents or consultants, or by damage caused by fire or other
casualty or by the combined action of workers or by governmental directive or
order in no way chargeable to the Subcontractor, or by any extraordinary
conditions arising out of war or government regulations, or by any other cause
beyond the control of and not due to any fault, neglect, act or omission of the
Subcontractor, its officers, agents, employees, subcontractors or suppliers,
then except where in the General Contract, or other contract documents has
specific requirements at variance with the foregoing, in which case the
requirements of the General Contractor , or other contract documents shall
govern the Subcontractor shall be entitled to an extension of time for a period
equivalent to the time lost by reason of any and all of the aforesaid causes;
provided, however, that the Subcontractor shall not be entitled to any such
extension of time unless the Subcontractor (1) notifies Xxxxxx in writing of the
cause or causes of such delay, obstruction, hindrance or interference with
within forty eight (48) hours of the commencement thereof and (2) demonstrates
that it could not have anticipated or avoided such delay, obstruction, hindrance
or interference and has used all available means to minimize the consequences
thereof.
The Subcontractor agrees that it shall not be entitled to nor claim any
cost reimbursement, compensation or damages for any delay, obstruction,
hindrance or interference to the Work except to the extent that Xxxxxx is
entitled to corresponding cost reimbursement, compensation or damages from the
Owner under the Contract Documents for such delay, obstruction, hindrance or
interference and then only to the extent of the amount, if any, which Xxxxxx on
behalf of the Subcontractor, actually receives from the Owner on account of such
delay, obstruction, hindrance or interference.
It shall be an express condition precedent to any obligation on the part of
Xxxxxx to make payment of any such cost, reimbursement, compensation or damages
to the Subcontractor hereunder that Xxxxxx shall first be determined to be
entitled to such compensation on behalf of the Subcontractor and then receive
such payment from Owner.
The Subcontractor agrees that it shall contribute a fair and proportionate
share of the costs of advancing the claims of the Subcontractor for delay,
including but not limited to legal and other professional fees.
Freight Charges and Shipments
ARTICLE VI. The Subcontractor in making or ordering shipments shall not
consign or have consigned materials, equipment or any other items in the name of
Xxxxxx. Xxxxxx is under no obligation to make payment for charges on shipments
made by or to the Subcontractor but may, at its option, pay such charges in
which case the Subcontractor shall reimburse Xxxxxx for the amount of such
payments plus a service charge of twenty-five percent (25%) of the amount so
paid.
Dimensions
ARTICLE VII. Notwithstanding the dimensions on the Plans, Specifications
and other Contract Documents it shall be the obligation and responsibility of
the Subcontractor to take such measurements as will insure the proper matching
and filling of the work covered by this Agreement with contiguous work.
Shop Drawings
The Subcontractor shall prepare and submit to Xxxxxx such shop drawings as
may be necessary to describe completely the details and construction of the
Work. Approval of such shop drawings by Xxxxxx and/or Architect shall not
relieve the Subcontractor of his obligation to perform the Work in strict
accordance with the Plans, Specifications, the Additional Provisions hereof and
the other Contract Documents, nor of its responsibility for the proper matching
and filling of the Work with contiguous work and the coordination of the Work
with other work being performed on the site, which obligation and responsibility
shall continue until completion of the Work.
The Subcontractor's submission of a shop drawing to Xxxxxx shall constitute
the Subcontractor's representation, upon which Xxxxxx may rely, that the
Subcontractor has reviewed the submission for accuracy and compliance with all
plans, specifications, the additional provisions hereof and the other Contract
Documents and that whatever engineering is required to be performed, same has
been performed by a qualified and licensed engineer. Furthermore, the review of
the Shop Drawings by Xxxxxx shall not constitute an undertaking by Xxxxxx to
identify deficiencies in the submission, that being an undertaking within the
sole responsibility of the Subcontractor.
Continuous Work
Should the proper and accurate performance of the Work hereunder depend
upon the proper and accurate performance of other work not entered by this
Agreement, the Subcontractor shall carefully examine such other work, determine
whether it is in fit, ready and suitable condition for the proper and accurate
conformance of the Work hereunder, use all means necessary to discover any
defects in such other work and before proceeding with the Work hereunder, report
promptly any such improper conditions and defects to Xxxxxx in writing and allow
Xxxxxx a reasonable time to have such improper conditions and defects remedied.
Interpretation of Plans and Specifications
ARTICLE VIII. The Work hereunder is to be performed and furnished under the
direction and to the satisfaction of both the Architect and Xxxxxx. The decision
of the Architect as to the true construction, meaning and intent of the Plans
and Specifications shall be final and binding upon the parties thereto. Xxxxxx
will furnish to the Subcontractor such additional information and Plans as may
be prepared by the Architect to further describe the Work to be performed and
furnished by the Subcontractor and the Subcontractor shall conform to and abide
by the same.
The Subcontractor shall not make any changes, additions and/or omissions in
the Work except upon written order of Xxxxxx as provided in Article IX hereof.
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Changes, Orders, Additions and Deductions.
ARTICLE IX. Xxxxxx reserves the right, from time to time, whether the Work
or any part thereof shall or shall not have been completed, to make changes,
additions and/or omissions in the Work as it may deem necessary, upon written
order to the Subcontractor. The value of the work to be changed, added or
omitted shall be stated in said written order and shall be added in or deducted
form the Price. The value of the work to be changed, added or omitted shall be
determined by the lump sum or unit prices, if any, stipulated herein for such
work. If no such prices are stipulated, such value shall be determined by
whichever of the following methods or combination thereof Xxxxxx may elect:
(a) By adding or deducting a lump sum or an amount determined by a unit
price agreed upon between the parties hereto.
(b) By adding (1) the actual net cost to the Subcontractor or labor
in accordance with the established rates, including required union benefits,
premiums the Subcontractor is required to pay for worker's compensation and
liability insurance, and payroll taxes on such labor, (2) the actual cost to the
Subcontractor of materials and equipment and such other direct costs as may be
approved by Xxxxxx less all savings, discounts, rebates and credits, (3) an
allowance of 10% for overhead on items (1) and (2) above, and (4) an allowance
of 5% for profit on items (1), (2) and (3) above.
Special Provisions
Should the parties hereto be unable to agree as to the value of the work to
be changed, added or omitted, the Subcontractor shall proceed with the work
promptly under the written order of Xxxxxx from which order the stated value of
the work shall be omitted, and the determination of the value of the work shall
be referred to the Architect whose decision shall be final and binding upon the
parties hereto.
In the case of omitted work Xxxxxx shall have the right to withhold from
payments due or to become due to the Subcontractor an amount which, in Xxxxxx'x
opinion, is equal to the value of such work until such time as the value thereof
is determined by agreement or by the Architect as hereinabove provided.
All changes, additions or omissions in the Work ordered in writing by
Xxxxxx shall be deemed to be a part of the Work hereunder and shall be performed
and furnished in strict accordance with all of the terms and provisions of this
Agreement and the other Contract Documents, Subcontractor accepts the
responsibility to keep its surety informed of and obtain consent of its surety
to all such modifications to its contract. The obligations of Subcontractor's
Surety shall not be reduced, waived or adversely affected by the issuance of
such change orders, additions or deductions even if Subcontractor fails to
inform surety of same and Subcontractor does not obtain consent of the surety to
such modifications. Contractor and other beneficiaries of such bonds shall have
no obligation to inform or advise subcontractor's surety of any Change Order,
Addition, Deduction or Modification.
Inspection and Defective Work
ARTICLE X. The Subcontractor shall at all times provide sufficient, safe
and proper facilities for the inspection of the Work by Xxxxxx, the Architect,
the Development Manager and their authorized representatives in the field, at
shops and at any other place where materials or equipment for the Work and in
the course of preparation, manufacture, treatment or storage. The Subcontractor
shall, within twenty-four (24) hours after receiving written notice from Xxxxxx
in that effect proceed to take down all portions of the Work and remove from the
premises all materials whether worked or unworked, which the Architect or Xxxxxx
shall condemn as unsound, defective or improper or as in any way failing to
conform to this Agreement or the Plans, Specifications or other Contract
Documents, and the Subcontractor, at its own cost and expense, shall replace the
same with proper and satisfactory work and materials and make good all worn,
damaged or destroyed by or as a result of such unsound, defective, improper or
nonconformed work or materials or by the taking down, removal or to replacement
thereof.
Failure to Prosecute, etc.
ARTICLE XI. Should the Subcontractor at any time refuse use or neglect to
supply a sufficiency of skilled workers or materials of the proper quality and
quantity, or fail in any respect to prosecute the Work with promptness and
allegiance, or cause by any act or omission the stoppage, impede, obstruct,
hinder or delay of or interference with or damage to the work of Xxxxxx or of
any other contractors or subcontractors on the Project, or fail in the
performance of any of the terms and provisions of this Agreement or of the other
Contract Documents, or should the Architect determine that the Work or any
portion thereof is not being performed in accordance with the Contract
Documents, or should there be filed by or against the Subcontractor a petition
in bankruptcy or for an arrangement or reorganization, or should the
Subcontractor become insolvent or be adjudicated a bankrupt or go into
liquidation or dissolution, either voluntarily or involuntarily or under a court
order, or make a general assignment for the benefit of creditors, or otherwise
acknowledge insolvency, then in any of such events, each of which shall
constitute a default hereunder on the Subcontractor's part, Xxxxxx shall have
the right, in addition to any other rights and remedies provided by this
Agreement and the other Contract Documents or by law, after three (3) days
written notice to the Subcontractor mailed or delivered to the last known
address of the latter, (a) to perform and furnish through itself or through
others any such labor or materials for the Work and to deduct the cost thereof
from any monies due or to become due to the Subcontractor under this Agreement,
and/or (b) to terminate the employment of the Subcontractor for all or any
portion of the Work, either upon the premises and take possession for the
purpose of completing the Work, of all materials, equipment, scaffolds, tools,
appliances and other items thereon, all of which the Subcontractor hereby
transfers, assigns and sells over to Xxxxxx for such purpose, and to employ any
person or persons to complete the Work and provide all the labor, services,
materials, equipment and other items required thereafter. In case of such
termination of the employment of the Subcontractor, the Subcontractor shall not
be entitled to receive any further payment under this Agreement until the Work
shall be wholly completed to the satisfaction of Xxxxxx and the Architect and
shall have been sampled by them, at which time, if the unpaid balance of the
amount to be paid under this Agreement shall exceed the cost and expense
incurred by Xxxxxx in completing the Work, such expenses shall be paid by Xxxxxx
to the Subcontractor, but if such cost and expenses shall exceed such unpaid
balance, then the Subcontractor or the surety shall pay the difference to Xxxxxx
and the Architect and of performing and furnishing all labor, services,
materials, equipment and other items required therefor, but also all losses,
damages, costs and expenses (including legal fees and disbursements incurred in
connection with reprocurement in defending claims arising from such default and
in seeking recovery of all such costs and expenses from the Subcontractor and/or
its surety), and disbursements sustained, incurred or suffered by reason of or
resulting form the Subcontractor's default.
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It is recognized that if the Subcontractor institutes or has instituted
against it a case under Title 11 of the United States Code (Bankruptcy Code),
such event could impair or frustrate the Subcontractor's performance of this
Agreement. Accordingly, it is agreed that upon the occurrence of any such event,
Xxxxxx shall be entitled to request of Subcontractor or its trustees or other
successor adequate assurances of future performance. Failure to comply with such
request within ten (10) days of delivery of the request shall entitle Xxxxxx, in
addition to any other rights and remedies provided by this Agreement or by law,
to terminate this Agreement. Pending receipt of adequate assurances of
performance and actual performance in accordance herewith, Xxxxxx shall be
entitled to perform and furnish through itself or through others any such labor,
materials or equipment for the Work as may be necessary to maintain the progress
of the Work and to deduct the cost thereof from any monies due or to become due
to the Subcontractor under this Agreement. In the event of such bankruptcy
proceedings, this Agreement shall terminate if the Subcontractor rejects this
Agreement or if there has been a default and the Subcontractor is unable to give
adequate assurance that it will perform as provided in this Agreement or
otherwise is unable to comply with the requirements for assuring this Agreement
under the applicable provisions of the Bankruptcy Code.
Loss of Damage to Work
ARTICLE XII. Xxxxxx shall not be responsible for any loss or damage in the
Work to be performed and furnished under this Agreement, however caused, until
after final acceptance thereof by Xxxxxx and the Architect, nor shall Xxxxxx be
responsible for loss of or damage to materials, tools, equipment, appliances or
other personal property owned, rented or used by the Subcontractor or anyone
employed by it in the performance of the Work, however caused.
Fire Insurance
Xxxxxx or Owner shall enact and maintain fire insurance (with extended
coverage, if specified or otherwise required) upon all Work, materials and
equipment incorporated in the Project and all materials and equipment on or
about the Premises intended for permanent use or incorporation in the Project or
incident to the construction thereof, the capital value of which is included in
the cost of the Work, but not including any contractors machinery, tools,
equipment, appliances or other personal property owned, rented or used by the
Subcontractor or anyone employed by it in the performance of the Work.
The total value of the property described above as insurable under this
Article and as shown on the approved monthly requisition provided for in Article
IV, plus the total value of similar property incorporated in the Project or
delivered on the Premises during the month, but not included in said
requisition, as reported by the Subcontractor to Xxxxxx for insurance purposes
only, shall determine the total value of the Subcontractor's work, materials and
equipment to be insured under this Article.
The maximum liability to the Subcontractor under this insurance shall be
for not more than that proportion of any loss which the last reported value of
the insured property have to the actual value of said property at the time of
such last report, and in the event for more than the actual loss.
In the event of a loss insured under this Article, the Subcontractor shall
be bound by any adjustment which shall be made between Xxxxxx or the Owner and
the insurance company or companies. Loss, if any, shall be made payable to
Xxxxxx and/or the Owner, as the interests may appear, for the account of whom it
may concern.
Cleaning Up
ARTICLE XIII. The Subcontractor shall, of its own cost and expense, (1)
keep the Premises free at all times from all waste materials, packaging
materials and other rubbish accumulated in connection with the execution of its
Work by collecting and depositing said materials and rubbish in locations or
containers as designated by Xxxxxx from which it shall be removed by Xxxxxx from
the Premises without charge, (2) clean and remove from its own Work and from all
contiguous work of others any spilling, staining, mortar, plaster, concrete or
dirt caused by the execution of the Work and make good all defects resulting
therefrom, (3) at the completion of its Work in each area, perform such cleaning
as may be required to leave the area "broom clean", and (d) at the entire
completion of its Work, remove all of its tools, equipment, scaffolds, shanties
and surplus materials. Should the Subcontractor fail to perform any of the
foregoing to Xxxxxx'x satisfaction, Xxxxxx shall have the right to perform and
complete such work itself or through others and charge the cost thereof to the
Subcontractor.
Compliance with Law and Permits
ARTICLE XIV. The Subcontractor shall obtain and pay for all necessary
permits and licenses pertaining to the Work and shall comply with all federal,
state, municipal and local laws, ordinances, codes, rules, regulations,
standards, orders, notices and requirements, including but not limited to those
relating to safety, discrimination in employment, fair employment practices at
equal employment opportunity, and whether or not provided for by the Plans,
Specifications, General Conditions or other Contract Documents, without
additional charge or expense to Xxxxxx and shall also be responsible for and
correct at its own cost and expense, any violations thereof resulting from or in
connection with the performance of its Work. The Subcontractor shall at any time
upon demand furnish such proof as Xxxxxx may require showing such compliance and
the correction of such violations. The Subcontractor agrees to save harmless and
indemnify Xxxxxx from and against any and all loss, equity, claims, actions,
proceedings, liability, damages, fines, penalties, costs and expenses, including
legal fees and disbursements caused or occasioned directly or indirectly by the
Subcontractor's failure to comply with any of said laws, ordinances, rules,
requisitions, standards, orders, notices or requirements or to correct such
violations therefore resulting from or in connection with the performance of
Work.
Labor to be Employed
ARTICLE XV. The Subcontractor shall not employ men, means, materials or
equipment which may cause strikes, work stoppages or any disturbances by workers
employed by the Subcontractor, Xxxxxx or other contractors or Subcontractors on
or in connection with the Work or the Project or the location thereof. The
Subcontractor agrees that any disputes as to jurisdiction of [illegible] shall
be adjusted in accordance with any plan for the settlement of jurisdictional
disputes which may be in effect either nationally or in the locality in which
the Work is being done and that it shall be bound and abide by all such
adjustments and settlements of jurisdictional disputes, provided that the
provisions of this Article shall not be in violation of or in conflict with any
provisions of law applicable to the settlement of such disputes. Should the
Subcontractor fail to carry out or comply with any of the foregoing provisions,
Xxxxxx shall have the right, in addition to any other rights and remedies
provided by this Agreement or the other Contract Documents or by law, after
providing written notice mailed or delivered to the last known address of the
Subcontractor, to terminate this
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Agreement or any part thereof or the employment of the Subcontractor for all or
any portion of the Work, and, for the purpose of completing the Work, enter upon
the Premises and take possession in the same manner, to the same extent, and
upon the same terms and conditions as set forth in Article XI of this Agreement.
Taxes and Contributions
ARTICLE XVI. The Subcontractor for the Price herein provided, hereby
accepts and assumes exclusive liability for and shall indemnify, protect and
save harmless Xxxxxx and the Owner from and against the payment of:
1. All contributions, taxes or premiums (including interest and penalties
thereon) which may be payable under the Unemployment Insurance Law of the State,
Federal Social Security Act, Federal, State, County and/or Municipal Tax
Withholding Laws, or any other law, measured upon the payroll of or required to
be withheld from employees, by whomever employed, engaged in the Work as it
performed and furnished under this Agreement.
2. All sales, use, personal property and other taxes (including interest
and penalties therefor required by any Federal, State, County, Municipal or
other law to be paid or collected by the Subcontractor or any of its
subcontractors or vendors or any other person or persons acting for, through or
under it or any of them, by reason of the performance of the Work or the
acquisition, ownership, furnishing or use of any materials, equipment, supplies,
labor, services or other items for or in connection with the Work.
3. All pension, welfare, vacation, annuity and other union benefit
contributions payable under or in connection with labor agreements with respect
to all persons, by whomever employed, engaged in the Work to be performed and
furnished under this Agreement.
In furtherance of, and in addition to the agreements, duties, obligations
and responsibilities of the Subcontractor with respect to the payment of sales,
use, personal property and other taxes set forth in Articles IV and XVI of this
Agreement, the Subcontractor agrees to reimburse and otherwise indemnify Xxxxxx
and the Development Manager and Owner for any expenses, including legal fees and
obligation arising from or related to the Subcontractor's failure to pay any
sales, use, personal property or other taxes based upon labor, services,
materials, equipment or other items acquired, performed, furnished or used for
or in connection with the Work.
Patents
ARTICLE XVII. The Subcontractor hereby agrees to indemnify, protect and
save harmless Xxxxxx and the Owner from and against any and all liability, loss
or damage and to reimburse Xxxxxx and the Owner for any expenses, including
legal fees and disbursements, to which Xxxxxx and the Owner may put because of
claims or litigation on account of infringement of alleged infringement of any
letters, patent or patent rights by reason of the Work or materials, equipment
or other items furnished by the Subcontractor in his performance.
Mechanics, Liens or Claims
ARTICLE XVIII. Subcontractor acknowledges that its rights to remedies
pursuant to New York's Mechanic's Lien Law, shall be governed to the fullest
extent permitted by law, by this clause. Subcontractor agrees that its rights to
pursue a lien shall be limited to that portion of its subcontract price which is
unpaid and due at the time of filing a lien claim under the terms of this
subcontract. Subcontractor agrees that it shall not file liens for any sum which
is not due hereunder and specifically agrees and covenants that it will not file
liens for some which it may contend are due as damages by reason of delays or
other such claims unless such sums are agreed due to Subcontractor by written
contract modification. Subcontractor agrees that its lien rights, whatever they
may be, are reduced by each payment made to Subcontractor by Contractor or any
other party on behalf of Contractor. Subcontractor acknowledges that a claim
lien filed by it may be disruptive of Project finances and could have an adverse
impact on Contractor's relationships with the Owner and its other
subcontractors. Therefore, Subcontractor further agrees that if it files a lien
claim which is not permitted by law, or which contains claims which are not
permissible hereunder or pursuant to law, or which is negligently or
purposefully overstated, Contractor shall be entitled to receive from
Subcontractor all its damages arising therefrom and further be held harmless and
indemnified by Subcontractor from all claims of Owner and other subcontractors
arising therefrom.
If any subcontractor, laborer, material man or supplier of the
Subcontractor of any other person directly or indirectly acting for, through or
under it or any of them files or maintains a lien or claim, whether a mechanics'
lien or an attached account or otherwise, a mechanic's lien or claim against the
Project or Premises or any part thereof or any interests therein, or any
improvements thereon or against any monies due or to become due from the Owner
to Xxxxxx or from Xxxxxx to the Subcontractor, for or on account of any work,
labor, services, materials, supplies, equipment or other items performed or
furnished for or in connection with the Work or under any change order or
supplemental agreement for extra or additional work in connection with the
Project, the Subcontractor agrees to cause such liens and claims to be
satisfied, removed or discharged at his own expense by bond, payment or
otherwise within ten (10) days from the date of the filing thereof, and upon its
failure to do so Xxxxxx shall have the right, in addition to all other rights
and remedies provided under this Agreement and the other Contract Documents or
by law, to cause such items or claims to be satisfied, remedied or discharged by
whatever means Xxxxxx chooses, at the entire cost and expense of the
Subcontractor (such cost and expense to include legal fees and disbursements).
The Subcontractor agrees to indemnify, protect and save harmless Xxxxxx and the
Owner from and against any and all such liens and claims and actions brought or
judgments rendered thereon, and from and against any and all loss, damages,
liability, costs and expenses, including legal fees and disbursements, which
Xxxxxx and/or the Owner may sustain or incur in connection therewith.
Assignment and Subletting
ARTICLE XIX. To the fullest extent permitted by law, Subcontractor agrees
that it shall not assign, sell, transfer, delegate or encumber any rights,
duties or obligations arising under this Agreement including, but not limited
to, any right to receive payments hereunder, without the prior written consent
of Xxxxxx in its sole discretion and the giving of any such consent to a
particular assignment shall not dispense with the necessity of such consent to
any further or other assignments. In the event subcontractor assigns, sells,
encumbers or otherwise transfers its right to any monies due or to become due
under this Agreement or security for any loan, financing or other indebtedness
(hereafter "Assignment"), notification to Xxxxxx of such Assignment must be sent
by courier mail, return receipt requested, to the Purchasing Manager in charge
of the business unit responsible for the construction of the Project and the
Assignment shall not be effective as against Xxxxxx until Xxxxxx provides its
written consent to such Assignment. Subcontractor agrees that any such
Assignment shall not relieve Subcontractor of any of its agreements, duties,
responsibilities or obligations under this Agreement and the other Contract
Documents and shall not create a contractual relationship or a third party
beneficiary relationship of any kind between Xxxxxx and such assignee or
transferee. Subcontractor further
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agrees that all of Turners defenses and claims arising out of this Agreement
with respect to such Assignment are reserved, unless expressly waived in writing
by a duly authorized corporate officer. Subcontractor hereby agrees to indemnify
and hold harmless Xxxxxx form and against any and all lost, cost, expense or
damages Xxxxxx or Owner has or may sustain or incur in connection with such
Assignment.
Termination for Convenience
ARTICLE XX. Xxxxxx shall have the right at any time by written notice to
the Subcontractor, to terminate this Agreement without cause and require the
Subcontractor to cease work hereunder, in which case, provided the Subcontractor
be not then in default. Xxxxxx shall indemnify the Subcontractor against any
damage directly resulting from such termination. In the event of such a
termination for convenience, the Subcontractor shall be entitled to payment
pursuant to the terms of the subcontract for all Work performed as of the date
of termination, together with reasonable costs of remediation and such other
reasonable costs as may be encountered by the Subcontractor and directly
attributable to such termination. However, the Subcontractor shall only be
entitled to profit on that portion of the work actually performed and approved
for payment to the date of termination together with retainages held upon
payments made prior thereto. Subcontractor waives any claim for loss of
anticipated profits in the event Xxxxxx exercises this clause.
Accident Prevention
ARTICLE XXII. The Subcontractor agrees that the prevention of accidents to
workmen charged upon or in the Work is its responsibility. The Subcontractor
agrees to comply with all Federal, State, Municipal and local laws, vicinity of
the ordinances, rules, regulations, codes, standards, orders, notices and
requirements concerning safety as shall be applicable to the Work, including,
among others, the Federal Occupational Safety and Health Act of 1970, as
amended, and all standards, rules, regulations and orders which have been or
shall be adopted or issued thereunder, and with the safety standards established
during the progress of the Work by Xxxxxx. When so ordered, the Subcontractor
shall stop any part of the Work which Xxxxxx deems unsafe until corrective
measures satisfactory to Xxxxxx have been taken, and the Subcontractor agrees
that it shall not have nor make any claim for damages growing out of such
stoppages. Should the Subcontractor neglect to take such corrective measures,
Xxxxxx may do so at the cost and expense of the Subcontractor and may deduct the
cost thereof from any payments due or to become due to the Subcontractor.
Failure on the part of Xxxxxx to stop unsafe practices shall in no way relieve
the Subcontractor of his responsibility therefor.
The Subcontractor acknowledges the receipt of The Xxxxxx Corporation's
policies on "Safety", "Drug and Alcohol Abuse" and "Sexual Harassment". Subject
to applicable law this Subcontractor further agrees to be bound to those
policies as a part of the supplemental and special conditions to the contract
for construction of the project.
In the event that hazardous substances of a type of which an employer is
required by law to notify its employees are being used or stored on the site by
the Subcontractor, the Subcontractor's sub-subcontractor and anyone directly or
indirectly employed or otherwise retained by them or either of them, the
Subcontractor shall immediately provide written notice of the chemical
composition thereof (including, without limitation, a copy of the applicable
Material Safety Date Sheet) to Xxxxxx, in sufficient time to permit compliance
with such laws by Xxxxxx, other subcontractors and other employees on the site.
In the event that the Subcontractor encounters on the site material reasonably
believed to be hazardous substances (including, without limitation, asbestos or
polychlorinated byphenyl) which has not been rendered harmless,
the Subcontractor shall immediately stop Work only in the area affected and
immediately report the condition to Xxxxxx in writing. Work in the affected area
shall resume when such hazardous substances has been rendered harmless or
removed as determined by Xxxxxx in his sole and absolute discretion. To the
extent of Subcontractor's responsibilities hereunder, Subcontractor does
indemnify and save harmless Xxxxxx from and against any and all loss, injury,
claims, actions, proceedings, liability, damages, fines, penalties, cost and
expenses, including legal fees and disbursements, caused or occasioned directly
or indirectly by the Subcontractor in regard to such hazardous substances.
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Liability for Damage and Personal Injury
ARTICLE XXIII. The Subcontractor hereby assumes entire responsibility and
liability for any and all damage or injury of any kind or nature whatever
(including death resulting therefrom) to all persons, whether employees of any
tier of the Subcontractor or otherwise, and to all property caused by, resulting
from, arising out of or occurring in connection with the execution of the Work,
or in preparation for the Work, or any extension, modification, or amendment to
the Work by change order or otherwise. Except to the extent, if any, expressly
prohibited by statute and excluding from this indemnity such acts or omissions,
if any, of the party indemnified for which it is not legally entitled to be
indemnified by the Subcontractor under applicable law, should any claims for
such damage or injury (including death resulting therefrom) be made or asserted,
whether or not such claims are based upon Xxxxxx'x or the Development Manager or
Owner's alleged active or passive negligence or participation in the wrong or
upon any alleged breach of any statutory duty or obligation on the part of
Xxxxxx or the Development Manager or Owner, the Subcontractor agrees to
indemnify and save harmless Xxxxxx, the Development Manager and Owner, their
officers, agents, servants and employees from and against any and all such
claims and further from and against any and all loss, cost, expense, liability,
damage, penalties, fines or injury, including legal fees and disbursements that
Xxxxxx and the Owner, their officers, agents, servants or employees may directly
or indirectly sustain, suffer or incur as a result thereof and the Subcontractor
agrees to and does hereby assume, on behalf of Xxxxxx, the Development Manager
and Owner, their officers, agents, servants and employees, the defense of any
action of law or in equity which may be brought against Xxxxxx and/or the
Development Manager and Owner, their officers, agents, servants or employees
upon or by reason of such claims and to pay on behalf of Xxxxxx, the Development
Manager and Owner, their officers, agents, servants and employees, upon demand,
the amount of any judgment that may be entered against Xxxxxx and/or the
Development Manager and Owner, their officers, agents, servants or employees in
any such action. In the event that any such claims, loss, cost, expense,
liability, damage, penalties, fines or injury arise or are made, asserted or
threatened against Xxxxxx, the Development Manager and Owner, their officers,
agents, servants or employees, Xxxxxx shall have the right to withhold from any
payments due or to become due to the Subcontractor an amount sufficient in its
judgment to protect and indemnify Xxxxxx, the Development Manager and Owner,
their officers, agents, servants and employees from and against any and all such
claims, loss, cost, expense, liability, damage, penalties, fines or injury,
including legal fees and disbursements, or Xxxxxx in its discretion may require
the Subcontractor to furnish a surety bond satisfactory to Xxxxxx guaranteeing
such protection, which bond shall be furnished by the Subcontractor within five
(50 days after written demand has been made thereby.
In furtherance to but not in limitation of the indemnity provisions in this
Agreement, Subcontractor hereby expressly and specifically agrees that its
obligation to indemnify, defend and save harmless as provided in this Agreement
shall not in any way be affected or diminished by any statutory or
constitutional immunity it enjoys from suits by its own employees or from
limitations of liability or recovery under worker's compensation law.
Compensation and Liability Insurance
Before commencing the Work, the Subcontractor shall procure and maintain,
at its own expense, until completion and final acceptance of the Work at least
the following insurance from insurance companies satisfactory to Xxxxxx.
1. WORKERS COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE in accordance
with laws of the State in which the Work is situated. OCIP
2. COMPREHENSIVE GENERAL LIABILITY INSURANCE INCLUDING COMPLETED
OPERATIONS, CONTRACTUAL LIABILITY INSURANCE AGAINST THE LIABILITY ASSUMED
HEREINABOVE, and including INDEPENDENT CONTRACTORS LIABILITY INSURANCE if the
Subcontractor sublets to another all or any portion of the Work, Personal Injury
Liability, Broad Form Property Damage (including combined operations), and
Explosion, Collapse and Underground Hazards, with the following minimum limits.
Combined Single Limit. OCIP
3. COMPREHENSIVE AUTOMOBILE LIABILITY INSURANCE covering all owned,
non-owners and hired automobiles used in connection with the Work, with the
following minimum limits:
Bodily injury (including death) $2,000,000.00 per accident
and Property Damage
Before commencing the Work, the Subcontractor shall furnish a certificate,
satisfactory to Xxxxxx from each insurance company showing that the above
insurance is in force, displaying policy numbers, dates of expiration, and
limits of liability thereunder, and further providing that the insurance will
not be canceled or changed until the expiration of at least thirty (30) days
after written notice of such cancellation or change has been mailed to and
received by Xxxxxx. Xxxxxx, the Owner and other entities as may be reasonably
requested shall be named as an additional insured under those policies of
insurance. It is expressly agreed and understood by and between Subcontractors
and Xxxxxx that the insurance afforded the additional insureds shall be primary
insurance and that any other insurance carried by Turn er shall be exempt of all
other insurance carried by the Subcontractor and shall not contribute with the
Subcontractor's insurance. Subcontractor further agrees to provide endorsements
on its insurance policies which shall state the foregoing, however,
Subcontractor's failure to provide such endorsement shall not affect
Subcontractor's agreement hereunder.
-9-
If the Subcontractor fails to procure and maintain such insurance, Xxxxxx
shall have the right, but not the obligation, to procure and maintain the said
insurance for and in the name of the Subcontractor and the Subcontractor shall
pay the cost thereof and shall furnish all necessary information to make
effective and maintain such insurance or at Xxxxxx'x option, Xxxxxx may offset
the cost incurred by Xxxxxx against amounts otherwise payable to Subcontractor
hereunder.
Bonds
ARTICLE XXIV. The Subcontractor shall furnish to Xxxxxx a performance bond
in the amount of $ and a separate payment bond in the amount of
$ , the term and contents of such bonds and the Surety or Sureties
thereon to be satisfactory to Xxxxxx. The Payment and Performance Bonds shall be
issued on Xxxxxx Multiple Obligee Bond Forms No. 112 and 111, 5/94. Xxxxxx
Construction Company, Bradirk 383 Associates LLC, d/b/a 383 Madison Venture and
Xxxxxxx/Madison Avenue LLC shall be listed as co-obligees. Such bonds shall be
furnished to Xxxxxx within ten (10) calendar days after Subcontractor has
executed this Agreement or within such other time period agreed to by Xxxxxx in
writing. In the event Subcontractor fails to furnish such bonds to Xxxxxx within
the time period as hereinabove provided, such failure shall constitute a default
under this Agreement in which event Xxxxxx shall have all of the rights and
remedies provided in Article XI hereof with respect to default on the part of
Subcontractor including, without limitation, the right to terminate this
Agreement.
Without limiting the responsibilities of Subcontractor and his Surety under
the terms of this Agreement, Subcontractor and its Surety hereby agree to
promptly pay all lawful claims of subcontractors, material men, laborers,
persons, firms or corporations for labor of services performed or materials,
supplies, machinery, equipment, rentals, fuels, oils, tools, appliances,
insurance and other items furnished, used or consumed in connection with the
prosecution of the Work provided for in said Subcontract and any and all
modifications thereof and shall indemnify and save harmless Xxxxxx of and from
all liability, fees, damage and expense, including interest costs and attorney
fees, which Xxxxxx and/or the Surety may sustain by reason of Subcontractors or
its Surety's failure to do so.
Severability
ARTICLE XXV. In the event that any provision or any part of a provision of
this Agreement shall be finally determined to be superseded, invalid, illegal or
otherwise unenforceable pursuant to applicable laws by an authority, having
jurisdiction, such determination shall not impair or otherwise affect the
validity, legality, or enforceability of the remaining provisions or parts of
provisions of this Agreement which shall remain in full force and effect as of
the unenforceable provision or part were deleted.
Entire Agreement
ARTICLE XXVI. This Agreement constitutes the entire agreement between the
parties hereto. No oral representations or other agreements have been made by
Xxxxxx except as stated in the Agreement. This Agreement may not be changed in
any way except as herein provided, and no term or provision hereof may be waived
by Xxxxxx except in writing, signed by its duly authorized officer or agent. The
marginal descriptions of any term or provision of this Agreement are for
convenience only and shall not be deemed to amend, restrict or alter the
content, meaning or effect thereof.
The said parties, for themselves, their heirs, executors, administrators,
successors and assigns, do hereby agree to the full performance of all of the
terms and provisions herein contained.
IN WITNESS WHEREOF, the parties to these presents have hereunto set
their hands as of the day and year first above written.
XXXXXX CONSTRUCTION COMPANY
In the Presence of (Witness)
/s/ [illegible] By: /s/ Xxxxxxx Xxxxxx
---------------------------------- -------------------------------
Purchasing Manager
Date: 11/15/00
------------------
TRADEWINDS ENVIRONMENTAL RESTORATION
INC.
In the Presence of (Witness)
By: /s/ Xxxxxxx X'Xxxxxx
---------------------------------- -------------------------------
Date: 11/14/00
------------------
Subcontractors New York State Unemployment No.
------------------- ---------------
(Insert State and Register No. for State in which the Work is to be performed)
Subcontractor's License No.
--------------
(Insert License No., if any, for State of locality in which the Work
is to be performed)
Subcontractors New York State Sales Tax Registration No.
------------------ -------
(Job Location)
-10-
XXXXXX CONSTRUCTION COMPANY
--------------------------------------------------------------------------------
SUBCONTRACTOR OFFICE DATE
Trades-Winds NEW YORK 12/6/00
Environmental Restoration, Inc. -----------------------------------------
000 Xxxxxxxxxxx, Xxxxxx XXXXXXXX XXXXXX
Xxx Xxxxx, XX 00000 Bear Xxxxxxx 6411 A0
Attn: Xxxxxxx X'Xxxxxx /000 Xxxxxxxxxx Xxxxxx
-------------------------------------------
SUBCONTRACT WORK SUB NO.
MOLD REMEDIATION 09670
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
CHANGE ORDER NO. ADDITION The terms and conditions of the original
Subcontract for the above work shall
A-001 TO CONTRACT govern this change
PRICE
--------------------------------------------------------------------------------
RE: CHANGE ESTIMATE CE-802 DATED NOVEMBER 30, 2000.
Gentlemen:
Confirming our mutual agreement, the scope of your BEAR XXXXXXX -
000 Xxxxxxxxxx Xxxxxx Contract dated November 15, 2000, is hereby amended
as follows:
The following pending items are now finalized in this Change Order A-001:
Additional Mold Remediation & Cleaning $2,000,000.00
TOTAL ADDITION $2,000,000.00
In consideration of the above, your Trade Contract shall be INCREASED in
the amount of TWO MILLION DOLLARS AND NO CENTS ($2,000,000.00), which completes
all work on the above change and constitutes payment in full therefore. All
changes include Trade Contractor Bond as applicable.
Kindly acknowledge your acceptance of this Change Order by signing in the
space provided below, on the three copies enclosed, and return them to Xxxxxx
Construction Company 000 Xxxxx Xxxxxx - 0xx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx, for execution on our behalf, after which one (1) copy will
be returned to you for your records.
This Subcontract revision constitute complete agreement regarding
compensation to this Subcontractor for both the extension of time and revised
cost for the above changed work and constitutes a final settlement of all claims
arising out of this Subcontract revision including, without limitation, all
claims for delays, disruptions, accelerations and impacts.
Very truly yours,
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx Xxxxxx 12/07/00 /s/ Xxxx Xxxxxxxx
------------------------ ---------------------------- ------------------
Xxxxxx X. Xxxxx Xxxxxxx Xxxxxx Xxxx Xxxxxxxx
Project Engineer Purchasing Manager Project Executive
Accepted by:
/s/ Xxxxxxx X'Xxxxxx
--------------------------
Xxxxxxx X'Xxxxxx
Trade-Winds
cc: X. Xxxx, X. Xxxxxx, X. Xxxxxxxx, X. Xxxxxx, X. Xxxxxxxxxx, X. Xxxxxxxxx,
X. Xxxxxxx, File 09670-Green
