SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-KSB/A-1
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended June 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________ to __________
Commission File Number O-26262
U.S. BRIDGE OF N.Y., INC.
(Exact name of registrant as specified in its charter)
New York 11-3032277
(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
53-09 97th Place, Corona, New York 11368
(Address of Principal Executive Offices) (Zip Code)
(718) 699-0100
(Registrant's Telephone Number, including area code)
Securities registered pursuant to Section 12(b) of
the Act:
Title of each class Name of each exchange on which registered
NONE
Securities registered pursuant to Section 12(g) of
the Act:
Common Stock, $.001 par value
(Title of Class)
Common Stock Purchase Warrants
(Title of Class)
Check whether the Issuer (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the past 12
months (or for such shorter period that registrant was required to file such
reports), and (2) has been subject to such filing requirements for the past 90
days. Yes [X] No [ ]
Check if no disclosure of delinquent filers in response to Item 405 of
Regulation S-B is not contained in this form, and no disclosure will be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K [ ].
The aggregate market value of the voting stock on September 30, 1997
(consisting of Common Stock, $.001 par value per share) held by non-affiliates
was approximately $2,590,336 based upon the average closing bid and asked prices
for such Common Stock on said date ($2.56), as reported by a market maker. On
such date, there were 2,302,515 shares of Registrant's Common Stock outstanding.
<PAGE>
PART I
ITEM 1. DESCRIPTION OF BUSINESS
History
U.S. Bridge of N.Y., Inc. ("the Company") was incorporated in the State
of New York, on September 4, 1990, as Metro Steel Structures, Ltd. The Company
amended its Certificate of Incorporation to effect a change in its name to its
current name on January 31, 1995. Additionally, the Company amended its
authorized capital (i) to increase the number of authorized shares of common
stock from 200 to 10,000,000 ("the Common Stock"); (ii) to increase the par
value of the Common Stock from no par value to $.001 par value per share; (iii)
to authorize 500,000 shares of preferred stock, par value $.01 per share ("the
Preferred Stock"); and (iv) to designate 400,000 shares of the Company's
Preferred Stock as "Series A Preferred Stock." Also as of such date, the Company
effected a 29,687.50 for one forward split of its Common Stock, pursuant to
which there became 950,000 shares of Common Stock outstanding.
Pursuant to an agreement and plan of merger by and between the Company
and U.S. Bridge Corp. ("Corp.") effective as of April 25, 1994, Corp. issued an
aggregate of 3,540,000 shares of its common stock to the stockholders of the
Company and One Carnegie Court Associates, Inc. ("One Carnegie") - 2,820,000 to
the stockholders of the Company and 720,000 to the stockholders of One Carnegie
- - in exchange for all of said stockholders' issued and outstanding shares.
Joseph Polito, the principal stockholder of the Company and the sole stockholder
of One Carnegie, received, in exchange for his shares of the Company's Common
Stock and One Carnegie's common stock, 2,380,000 and 720,000 shares,
respectively, of Corp.'s common stock. The "Acquisitions" were accounted for as
a "recapitalization" of Corp. Accordingly, both the Company and One Carnegie
became wholly owned subsidiaries of Corp., of which company Joseph Polito became
an 80% shareholder, which decreased to 75.4% upon the completion of the
Company's initial public offering in August 1995.
Immediately prior to the acquisition of the Company by Corp., the
Company completed a private placement offering of its Common Stock, whereby the
Company sold an aggregate of 148,200 shares (post stock split) of its Common
Stock. The Company received net proceeds of $502,594 after the deduction of
offering expenses of $47,406.
Pursuant to the terms of the acquisition, each subscriber in the
private placement exchanged each Company share held prior to the acquisition for
20,000 post reverse split shares of Corp.'s common stock. Corp. agreed to
register the shares purchased in the private placement in a Registration
Statement under the Securities Act of 1933, as amended (the "Act"), one time
only, upon demand by any of the investors in the private placement, after June
30, 1995.
The Company commenced operations in or about June 1993 to serve
primarily as a general contractor for construction projects sponsored by
federal, state, and local government authorities in New York State and in the
New York City metropolitan area. Previously, through other entities, Joseph
Polito furnished and provided steel erection as a subcontractor for private and
governmental construction projects. Since its commencement of operations in June
1993, the Company has provided steel erection for building, roadway, and bridge
repair projects for general contractors who have been engaged by private and
municipal/governmental customers. As of September 30, 1997, the Company has
completed in excess of eighteen (18) projects, with an aggregate project value
of $22,768,614, and is currently engaged in four (4) projects with an aggregate
value of approximately $19,998,040. The Company plans to
<PAGE>
maintain its subcontractor presence in the steel industry; however, now that it
has obtained general contractor bonding, it intends to focus on obtaining
projects as a general contractor.
Though formed to operate as a general contractor, the Company operated
initially only as a subcontractor. The Company's goals were to become a general
contractor for municipal projects; however, it needed financing to enable it to
obtain bonding, which is required for all municipal projects.
On June 15, 1993, the Company purchased, from Atlas Gem Erectors Co.,
Inc. ("Atlas Gem"), six then existing contracts to perform steel erection
services for the following projects: Stillwell Avenue, 39th Street Bridge
Rehabilitation, Honeywell Street Bridge, New England Thruway, Lemon Creek, and
Kosciuszko Bridge. Upon its sale of these contracts to the Company and its
completion of its final project in September 1994, Atlas Gem ceased operations.
The Company purchased Atlas Gem's contracts to add to its then backlog in order
to avoid a conflict of interest, as the two entities - which were controlled by
Joseph Polito as officer, director, and principal stockholder - were engaging in
similar, but different work.
Recent Developments
In June 1996, the Company entered a prime contracting agreement with
EklecCo, the owner of the Palisades Power Mall located in West Nyack, New York,
to perform structural steel erection services. The estimated aggregate value of
the contract is $10,373,552. The mall is estimated to be approximately 3,900,000
square feet upon completion. The project is to be performed in two phases. The
Company commenced work on Phase I in June 1996. As of September 30, 1997, the
project is 79% complete.
In July 1996, the Company entered into a prime contracting agreement
with Tishman Construction Corporation of New York (construction manager) to
perform steel erection services on the Louis Vuitton Office Tower owned by
Starre Realty and located on East 57th Street in New York, New York.
Commencement of the project was delayed due to conflict not involving the
Company, which conflict since has been resolved. The Company expects to
recommence work on this project by the end of calendar 1997. In or about
December 1996, the Company obtained confirmation of United Casualty and Surety
Insurance Company's willingness to issue a performance bond for the Company as
general contractor of this project; however, the construction manager
subsequently waived its bond requirement. As of September 30, 1997, the project
is 67% complete.
<PAGE>
In October 1996, the Company entered into a subcontracting agreement
with Hannibal Construction Co., Inc. (general contractor) to provide certain
structural steel work for rehabilitation of the Hellgate Viaduct Structures,
located in Philadelphia, Pennsylvania, owned by the National Railroad Passenger
Corporation (AMTRAK). Work on the project has been completed.
In November 1996, the Company entered into a subcontracting agreement
with N.Y. Iron (general contractor) to provide structural steel work for the
Indonesian Mission owned by the United Nations. Work on the contract has been
completed.
In January 1997, the Company entered into a subcontracting agreement
with Humphreys & Harding, Inc. to perform certain structural steel erection work
for the Permanent Mission to the Republic of Korea, located in New York, New
York. The contract price is $1,500,000. As of September 30, 1997, work on the
project is 16% complete.
As of May 1997, the Company was in arrears in the amount of $480,000 in
payments due under its lease with R.S.J.J. Realty Corp. ("RSJJ"). This arrearage
was converted into equity as follows: on June 19, 1997, the Company issued
270,000 shares of common stock to Corp., for the cancellation of the debt owed
to RSJJ. Corp., in turn, issued 200,000 shares of its Common Stock to Joseph
Polito and 150,000 shares of its Common Stock to RSJJ. RSJJ then transferred all
of such shares to RSJJ's mortgagor, which agreed to accept said shares as
payment of RSJJ's outstanding mortgage. See "Item 12. Certain Relationships and
Related Transactions."
In October 1997, the Company's Board of Directors adopted a resolution
decreasing the exercise price of the Company's outstanding public warrants from
$6.00 to $3.00. No other terms of the warrants were amended. In addition, the
Board authorized the Company to prepare and file a post-effective amendment to
its registration statement to update the information therein enabling the
warrants to become exercisable.
<PAGE>
The Company
The following table lists, as of June 30, 1997, (i) all companies in
which Joseph Polito is either an Officer, Director, or principal shareholder;
and (ii) the activities engaged in by such companies with the Company or any of
its subsidiaries:
<TABLE>
<CAPTION>
Year J. Polito's Activities with the Place of
Company Name(1) of Inc. Title Ownership(%) Company and NY Business
<S> <C> <C> <C> <C> <C>
U.S. Bridge Corp.(2) 1988 Pres./Director 61% Parent Company Queens, NY
One Carnegie Court 1990 Pres./Director 0% Subsidiary of Corp. Waldorf, MD
Associates, Inc. (3)(5)(6)
R.S.J.J. Realty Corp.(4) 1983 Pres./Director 100% Leases the offices and Queens, NY
storage space to the
Company
Crown Crane, Inc.(4) 1988 -- 50% Supplies cranes to the Brooklyn, NY
Company for use in the
erection of steel
Atlas Gem Leasing, 1986 Pres./Director 100% Supplies welding Queens, NY
Inc. (4) machines and compressors
to the Company
Atlas Gem Erectors 1986 Pres./Director 100% Sold certain construction No office
Co., Inc. (4)(7) contracts to the Company;
ceased operations 9/94
Gem Steel Erectors 1966 Pres./Director 100% No business relationship; No office
Inc.(4)(8) ceased operations 3/91
Waldorf Steel 1990 Pres./Director 100% Provided steel to the No office
Fabricators, Inc.(3)(5) Company; ceased
operations in 8/95
U.S. Bridge Corp. 1994 Pres./Director 0% Subsidiary of Corp.; No office
(Maryland) (2)(9) ceased operations in 11/96
U.S. Bridge of N.Y., 1990 Pres./Director 56.3% Provides steel erection Queens, NY
Inc.(4)(10) buildings, roadway, and
bridge repair projects
</TABLE>
(1) Except as disclosed hereunder, no company listed is beneficially owned
by another entity; nor does any company have any subsidiaries. No company listed
has conducted any business operations under any name except for its corporate
name, except for Corp. See "-History."
(2) Incorporated in the State of Delaware.
(3) Incorporated in the State of Maryland.
(4) Incorporated in the State of New York.
(5) One Carnegie owned the property, building, and equipment which it
leased to Waldorf Steel Fabricators, Inc. ("Waldorf") prior to August 1, 1995,
as of which date it began leasing to U.S. Bridge Corp. (Maryland) ("MD") until
MD ceased operations in November 1996.
(6) Formed in December 1990, One Carnegie is a wholly-owned subsidiary of
Corp. Joseph Polito, through his ownership of approximately 61% of the
outstanding shares of Corp. may be deemed the beneficial owner of the shares of
One Carnegie owned by Corp.
(7) Ceased operations in September 1994.
(8) Ceased operations in March 1991.
(9) MD was incorporated in the state of Delaware on September 21, 1994 and
is a wholly-owned subsidiary of Corp. It was formed to provide labor for the
fabrication of steel by Waldorf, which it provided until August 1, 1995, when
Waldorf ceased operations.
(10) Joseph Polito, through his ownership of approximately 61% of the
outstanding shares of the Corp., may be deemed the beneficial owner of the
shares of the Company owned by Corp.
<PAGE>
Schedule of Completed Contracts
<TABLE>
<CAPTION>
Project Name Contract Amount Contract Date Type of Contract
- ------------ --------------- ------------- ----------------
<S> <C> <C> <C>
Van Wyck $ 195,500 April 1992 Lump-Sum
39th Street Bridge 2,538,252 June 1993 Lump-Sum
39th Street (Demolition) 679,046 February 1993 Lump-Sum
New England Thruway 2,409,058 June 1993 Lump-Sum
Honeywell 1,100,000 June 1993 Joint Venture (1)
Kosciuszko Bridge 3,034,281 June 1993 Lump-Sum
Stillwell Avenue Bridge 8,084,655 June 1993 Lump-Sum
Cross Bronx Expressway 60,176 March 1994 Lump-Sum
Robert Moses Causeway 540,118 December 1994 Lump-Sum
4th Avenue Bridge 387,965 March 1995 Lump-Sum
201 East 80th Street 1,692,797 May 1995 Lump-Sum
Centereach 186,500 June 1995 Lump-Sum
Pro-Camera 50,275 August 1995 Lump-Sum
UDC 82,400 August 1995 Lump-Sum
Williamsburg Houses (2) 708,450 April 1996 Lump-Sum
South Avenue Plaza 274,045 May 1996 Lump-Sum
Hellgate Viaduct Structures 208,750 Oct. 1996 Lump-Sum
Indonesian Mission 348,000 Nov. 1996 Lump-Sum
Others(3) 188,346 N/A N/A
Total 22,768,614
</TABLE>
(1) Joint venture with John P. Picone, Inc. ("Picone"), whereby the Company
entered into a consulting agreement with Picone, who was awarded the
project. The agreement provided that for 50% of the profits of the
project, the Company would provide Picone with its expertise in steel
erection, supply qualified workers, and oversee the rehabilitation of
the bridge. Picone put the Company's employees on its payroll and
incurred all the expenses of the project.
(2) This project, which bore an original contract price of $2,517,651, was
on hold for a considerable period of time pending a dispute not
involving the Company. The Company believes that it will not return to
this project and thus deems the project complete.
(3) Total estimated project value of a collection of smaller projects completed.
Inasmuch as the Company purchased steel from Waldorf or leases
equipment from Crown Crane, Ltd. or Atlas Gem Leasing, Inc., the Company shall
check prices in the industry prior to engaging in any such transactions and will
transact business with such companies only on terms which may be considered
similar. The audit committee of the Board of Directors intends to exercise
reasonable judgment and take such steps as it deems necessary under all of the
circumstances to resolve any specific conflict of interest which may occur and
will determine what, if any, specific measures, such as retention of an
independent advisor, independent counsel, or special committee, may be necessary
appropriate. The fact that Joseph Polito is an officer, director, and principal
shareholder in other companies, including those that transact business with the
Company, opens the potential that there may be conflicts of interest in
decisions made by Joseph Polito, which may compromise his fiduciary duty to the
Company. Any remedy under state law, in the event such circumstances arise, most
likely would be prohibitively expensive and time consuming. See "Item 1.
Description of Business-Suppliers and Subcontractors."
<PAGE>
Industry Overview
1997 has brought about a resurrection in the construction industry in
the New York City metropolitan area. Major transportation arteries in New York
are under extensive construction programs to increase their ability to handle
the ever increasing volumes of traffic they carry. Work is in progress on the
major thruways, expressways, and parkways across New York State. The Company
currently is preparing subcontracting bids for some of the roadway projects in
the New York City metropolitan area.
These projects positively affect the availability of work in diverse
disciplines in the construction industry: landscaping, concrete, paving, steel,
etc. The Company has qualified as a bidder (and expects to place a bid by the
end of November 1997) for a project for the JFK Airport, international arrivals
building, Korean Air and Lufthansa terminals.
Apart from the infrastructure construction programs, there has been an
impressive increase in the restoration, alteration, and expansion of office
space, residential properties, and public facilities. This increase has resulted
in the Korean Mission subcontracting project. There also appears to be an
infusion of foreign investment capital into the depressed real estate market in
New York, prompting major renovations and alterations. This capital infusion
enhances the value of property and therefore increases the incentive for new
development.
Marketing
The Company obtains its projects primarily through the process of
competitive bidding. Accordingly, the Company's marketing efforts include the
following: (i) subscribing to bid reporting services; (ii) monitoring trade
journals including Engineering Record News, Dodge Report, and Brown's Letter,
Inc.; (iii) monitoring daily newspapers and real estate publications; (iv)
membership and networking in affiliated organizations including Allied Building
Trades; (v) maintaining contracts with developers and other general contractors;
and (vi) requesting notification from various government agencies as to bid
solicitations being requested.
The Contract Process; Bidding
In response to bid requests, the Company submits to the soliciting
entity a proposal detailing its qualifications, the services to be provided, and
the cost of its services. Based on its evaluation of the proposals submitted,
the soliciting entity awards the contract to the bidder it deems appropriate.
Generally, the contract for a project is awarded to the lowest bidder, although
other factors may be taken into consideration.
The Company submits its bids after management performs a detailed
review of the project specifications, an internal review of the Company's
capabilities and equipment availability, and an assessment of whether the
project is likely to attain targeted profit margins. In bidding on contracts,
there are two types of bid requests made by the soliciting entity: a unit cost
bid and a lump-sum bid. The unit cost bid is based upon a cost per unit basis; a
lump-sum bid obligates the Company to complete the project at a fixed price.
With a lump-
<PAGE>
sum bid, the risk of estimating the quantity of units required for a particular
project is on the Company, while with a unit cost bid, the Company must estimate
the per unit cost, not the number of units needed. Any increase in the Company's
unit cost over its unit bid price or cost over its lump-sum bid, whether due to
inefficiency, faulty estimates, weather, inflation, or other factors, must be
borne by the Company and may adversely affect its results of operations.
Upon receipt by a New York City agency of notification that a bid
submitted for a project has been declared the low bid, the city's procurement
policy requires that the New York Finance Committee then approve all funds to be
allocated to such project. During this time, if the Company is the low bidder,
it must provide the New York City agency with such documents as are required -
including a Payment and Performance Bond and a Labor and Material Bond - in
order to be approved to undertake the project. Once the New York City Finance
Committee has cleared the allocation of funds for a project and the agency has
cleared all the documentation required to be submitted by the contractor, a
starting date and time table is set up for the project.
Most government contracts provide for termination of the contract at
the election of the customer, although in such event, the Company is generally
entitled to receive a small cancellation fee. Many of the Company's contracts
are also subject to completion requirements with liquidated damages assessed
against it if schedules are not met.
While Joseph Polito has been in the construction business for many
years, the Company has only recently started bidding on projects as a general
contractor, and the Company may incur unanticipated expenses, problems, or
difficulties which may affect its bid prices and project profitability. Though
the Company has been the low bidder on several public sector and private sector
bids, it has not commenced any Company public or private sector projects as a
general contractor. It has, however, commenced two projects as prime contractor.
The Company expects to act as a general contractor on some of the
projects it will undertake in the near future and will need to hire
subcontractors to perform certain jobs such as electrical and mechanical work,
though it shall continue also to bid as a subcontractor at the request of other
general contractors. As general contractor, the Company will be responsible for
the performance of the entire contract, including work assigned to
subcontractors. Accordingly, the Company is subject to liability associated with
the failure of subcontractors to perform as required under the contract; thus,
the Company may require its subcontractors to furnish Performance Bonds.
Affirmative action regulations, however, require the Company to use its best
efforts to hire minority subcontractors for a portion of the project and some of
these minority subcontractors may not be able to obtain such surety bonds.
Insurance and Bonding
The Company maintains general liability and excess liability insurance,
insurance covering its construction equipment, and workers' compensation
insurance in amounts it believes are consistent with industry practices. The
Company carries liability insurance of $1,000,000 per occurrence which
management believes is adequate for its current operations.
<PAGE>
Although the Company generally has not been required to provide
Performance Bonds to general contractors when acting as a subcontractor, it may
be required to furnish bonds guaranteeing its performance as a subcontractor in
the future. Currently, the Company is serving as a subcontractor on two
projects. For the EklecCo prime contracting project and the Grand Central
Terminal and Korean Mission subcontracting projects, the Company has been
required to provide, and has provided, Performance Bonds and Labor and Material
Bonds.
The Company expects to bid on both private and public sector projects
as a general contractor. Most of these projects, both public and private sector,
shall require Bid Bonds and Payment and Performance Bonds. A Bid Bond is a bond
issued by a bonding company which is usually in an amount equal to 10% of the
bid price and which guarantees that the contractor will be able to produce such
other additional documents and information required in order to commence the
project including the issuance of a Performance Bond. A Performance Bond is a
guarantee by a surety, customarily 100% of the value of the contract amount,
that the contractor will complete the project pursuant to the terms and
conditions of the contract. Most government contracts allow for termination of
the contract at the election of the customer, although in such event, the
Company is generally entitled to receive a small cancellation fee. Many of the
Company's contracts are also subject to completion requirements with liquidated
damages assessed against the Company if schedules are not met. In the past, the
Company has not been materially adversely affected by these provisions as a
subcontractor.
The Company's ability to obtain bonding and its bonding capacity are
primarily determined by its net worth, liquid working capital (consisting of
cash and accounts receivable), past performance, management expertise, the
number and size of projects under construction, and various other factors. The
larger the project and/or the more projects in which the Company is engaged, the
greater the bonding, net worth, and liquid working capital requirements. Surety
companies consider such factors in light of the amount of the Company's surety
bonds then outstanding and the surety companies' current underwriting standards,
which standards may change periodically. Therefore, the Company may be required
to maintain certain levels of tangible net worth in connection with establishing
and maintaining bonding limits. As a practical matter, such levels may limit
dividends, if the Company, which might have been declared and which would limit
corporate funds available for other purposes.
In determining whether to issue a bond, surety companies perform credit
checks and other due diligence disclosure requirements and investigate the
Company's capitalization, working capital, past performance, management's
expertise, and such other factors as are discussed above. The surety companies
require companies receiving bonding to maintain certain amounts of capital and
liquid assets and base the amount of bonding they will issue on a formula, which
is usually based on certain industry standards which take into account such
factors. The surety companies also require that the bonds be personally
guaranteed by Joseph Polito.
<PAGE>
Bonding requirements vary depending upon the nature of the project to be
performed. The Company anticipates paying premiums of between 1 1/4% to 3 1/2%
of the total amount of the contracts to be performed. Since these premiums are
generally payable at the beginning of a project, the Company must maintain
sufficient working capital to satisfy the premium prior to receiving revenue
from the project. Bonding premiums are a line item in the submitted bid and are
included as part of the Company's billing to its clients.
In December 1996, the Company obtained a commitment for a Surety Bond
Line of Credit ($10,000,000 single project limit) from United American Guarantee
Company, Ltd. ("UAGC") for its general contracting projects. This commitment
will allow the Company to pursue those general contracting projects in the
public and private sectors which require performance bonds. To date, it has also
allowed the Company to obtain Performance Bonds and Labor and Material Bonds for
the one prime contracting and two subcontracting projects which have required
same: the EklecCo, Grand Central Terminal, and Korean Mission projects.
Work in Progress; Backlog and Seasonality
Contracts as a subcontractor and general contractor often involve work
periods in excess of one year. Revenue on uncompleted fixed price contracts is
recorded under the percentage of completion method of accounting. NY begins to
recognize profit on its contracts when it first accrues direct costs. As is
standard construction industry practice, a portion of billings may be retained
by the customer until certain contractual obligations are fulfilled.
The following is a list, as of September 30, 1997, of those projects in
which the Company is currently engaged.
<TABLE>
<CAPTION>
Backlog
Contract Party/ Contract Amount at Type of % of job
Project Name Amount Contract Date 9/30/97 Contract Completed
<S> <C> <C> <C> <C> <C>
EklecCo/
Palisades Power Mall(1) ... $10,373,552(2) June 1996 2,178,446 Lump-sum 79%(2)
Lehrer McGovern, Bovis, Inc./
Grand Central Terminal .... 3,706,653 May 1996 1,169,449 Lump-sum 69%(2)
Tishman Construction Corp./
Louis Vuitton N.A.(1) ..... 4,417,835 July 1996 1,457,886 Lump-sum 67%(2)
Humphreys & Harding, Inc./
Korean Mission ............ 1,500,000 Jan. 1997 1,260,000 Lump-sum 16%(2)
Total Signed Contracts ...... $19,998,040 $ 6,065,781
</TABLE>
(1) The Company is prime contractor (similar to general contractor) on this
project.
(2) Completion percentage is as of September 30, 1997 and is based on the
percentage of costs incurred through that date to the estimated cost of the
project.
Though the Company does not believe its business is seasonal, its
operations slow during the winter months due to decreased productivity of
laborer caused by their inability to work in severe weather conditions. As a
result of the foregoing, the Company's costs are increased.
<PAGE>
Suppliers; Subcontractors; Unions
For the year ended June 30, 1997, the Company received approximately
43% of the fabricated steel it required from MD, a subsidiary of Corp. Queens
County Ironworks and New York Iron, Inc. provided the remainder of the steel.
Neither Queens County Ironworks nor New York Iron, Inc. is affiliated with the
Company, Corp., or any other Director or principle stockholder of either
company. MD provided the Company with fabricated steel until November 1996, at
which time MD ceased operating. The prices paid and the terms for the steel
purchased from MD were comparable to competitive prices and terms; therefore,
the Company believes it now will be able to acquire same through other suppliers
at similar prices and on similar terms.
The Company currently depends upon various vendors to supply spare
parts, cranes, and other heavy equipment, and its ability to hire skilled
workers depends upon its ability to comply with certain union agreements and
contracts. The Company rents cranes from Crown Crane, Ltd., a company of which
Joseph Polito is a 50% shareholder, and rents generators and other equipment
from Atlas Gem Leasing, Inc., a company which is wholly owned by Mr. Polito. The
Company believes that there are a sufficient number of vendors, so that in the
event any individual or group of vendors can no longer service the Company's
needs, the Company will be able to find other vendors at competitive prices.
As is standard practice in the construction industry, the Company's
employees, other than its office employees, are not salaried individuals. They
are union employees who are hired on an as-needed, or per project, basis and are
paid an hourly wage which is set by the unions with which they are associated.
The Company hires skilled steel workers represented by the International Union
of Structural Ironworkers local 40, 361, & 417 and International Operating
Engineers locals 14, 14B, 15, 15A, 15C, 15D, and 825 and Cement Masons local
472. The Company must comply with its agreements with the unions, which
agreements regulate all employment issues - including pay, overtime, working
conditions, vacations, benefits, etc. - between the Company and the union
employees. These agreements expire on June 30, 1999.
The Company believes that it has a good relationship with the Unions
and is in compliance with all union agreements. No assurance can be given that
the Company will continue to be in compliance with the Unions or successfully
negotiate extensions to the Company's agreements with such Unions. In the event
problems or conflicts with the Unions arise or there is a loss of skilled steel
and operating engineers, this would have a detrimental effect on the Company's
operations.
The Company's success as a general contractor, in part, will be
dependent upon its ability to hire workers and comply with union contracts and
agreements and its ability to oversee and retain qualified subcontractors to
perform certain work. Although the Company believes that it will be able to
attract subcontractors to bid on projects it bids as general contractor, there
can be no assurance that it will be able to do so. The Company will be
responsible for performance of the entire contract, including the work done by
subcontractors.
Accordingly, the Company may be subject to substantial liability if a
subcontractor fails to perform as required. In addition, in hiring and
overseeing subcontractors, there may be difficulties of which the Company is not
aware.
<PAGE>
Competition
All aspects of the Company's business are, and will continue to be, highly
competitive. The Company is one of many subcontractors which erects and
furnishes steel for projects. Many of these subcontractors have substantially
greater financial resources and sales than those of the Company. When
contractors seek construction contracts, they request bids from numerous
subcontractors based on the various requirements of the project. These
subcontractors compete primarily as to price, name recognition, and prior
performance.
As a general contractor, the Company will be competing with many larger and
more experienced (and thus more established) contractors whose names are more
readily recognized and whose relationships with federal and state municipalities
and agencies, and those private companies who are bidding against the Company,
have been established. The Company is a subcontractor and a general contractor
specializing, but not exclusively, in bridge and roadway repair and replacement
as well and in furnishing and erecting steel structures for buildings. The
Company's competitors are numerous, and many have substantially greater
marketing, financial, bonding, and human resources.
Government Regulation
The Company must comply with the Occupational Safety and Health
Administration ("OSHA"), a federal agency which regulates and enforces the
safety rules and standards for the construction industry. In addition, the
Company must comply with a wide range of other state and local rules and
regulations applicable to its business, including regulations covering labor
relations, safety standards, affirmative action and the protection of the
environment including requirements in connection with water discharge, air
emissions and hazardous and toxic substance discharge. Continued compliance with
OSHA and the broad federal, state, and local regulatory network is essential and
costly. The failure to comply with such regulations or amendments to current
laws or regulations imposing more stringent requirements may have an adverse
effect on the Company's operations. The Company believes that it is in
substantial compliance with all applicable laws and regulations.
Employees
As of June 30, 1997, the Company had three executive officers, two
administrative assistants, one comptroller, one project estimator, and two
employees in the accounting department. The number of union employees the
Company utilizes depends on the number and size of projects in which the Company
is engaged and can range from 10-200 employees, some of whom are employed
full-time and others of whom are employed part-time. These union employees are
represented by the International Union of Structural Ironworkers locals 40, 361
and 417; International Operating Engineers locals 14, 14B, 15, 15A, 15C, 15D,
825; and Cement Masons local 472. The Company's contracts with these Unions,
which contracts regulate all employment issues between the Company and the union
employees - including pay, overtime, working conditions, vacations, benefits,
etc. - expire on June 30, 1999. The Company considers its relationships with the
unions and its employees to be good.
<PAGE>
ITEM 2. DESCRIPTION OF PROPERTY
The Company's office (located at 53-09 97th Place, Corona, New York
11368) consists of approximately 25,000 square feet of office space
(approximately 24,000 square feet of which is utilized for storage space) which
is leased from an affiliate company, RSJJ. RSJJ is owned by the Company's
President, Joseph Polito. The lease, pursuant to which the Company pays rent of
$20,000 per month to RSJJ, expires in March 1998. The Company also leases a yard
for storage material pursuant to an oral agreement with RSJJ, which agreement
requires monthly payments of $3,500. The Company believes that the terms of
these leases are comparable and competitive to those terms which might have been
negotiated with an unaffiliated landlord.
As of May 1997, the Company was in arrears in the amount of $480,000 in
payments due under its lease with RSJJ. This arrearage was converted into equity
as follows: the Company issued 270,000 shares of Common Stock to Corp., for the
cancellation of the debt owed to RSJJ.
Corp., in turn, issued 200,000 shares of its common stock to Joseph Polito and
150,000 shares of its common stock to RSJJ. RSJJ then transferred all of such
shares to RSJJ's mortgagor, which agreed to accept said shares as payment of
RSJJ's outstanding mortgage.
ITEM 3. LEGAL PROCEEDINGS
The Company is not a party to any material litigation and is not aware
of any threatened litigation that would have a material adverse effect on its
business, except for the litigation matters discussed below. The Company
believes that the nature and number of these proceedings are typical for a
construction firm of its size and scope.
Three actions to foreclose upon mechanics liens were commenced by the
Company in the last fiscal year. The first action was commenced in New York
State Supreme Court, Kings County on February 25, 1997. The action names the
Company and Metro Steel Structures, Ltd. as plaintiffs and the Perini
Corporation, Metropolitan Transportation Authority, New York City Transportation
Authority, and Fidelity and Deposit Company of Maryland as defendants. The
Company's claim for relief in this action is $2,199,560. The claim is based upon
filed mechanic's liens and general contract law. The claim is for labor
performed and materials supplied including money owed under the contract and
money due for "extra" work with regard to the rehabilitation of the Viaduct at
the Stillwell Avenue Station of the Coney Island Line in Brooklyn, New York.
This action is still in the discovery phase.
The second action was filed on February 26, 1997 in New York State Supreme
Court, Queens County. It names the Company, Metro Steel Structures, Ltd., and
McKay Enterprises, Inc. as plaintiffs and Perini Corporation, Department of
Transportation of the City of New York, and Fidelity and Deposit Company of
Maryland as defendants. The Company's claim for relief in this action is
$844,932. This claim is based upon filed mechanic's liens and general contract
law. The claim is for labor performed and materials supplied including money
owed under the contract regarding the rehabilitation of the 39th Street Bridge
over the Long Island Rail Road and Amtrak in Queens, New York. This action is
still in the discovery phase.
On February 7,1997, Perini Corporation filed a related action against the
Company and Metro Steel Structures, Ltd. in New York State Supreme Court, Kings
County. Perini's claims against the Company total $1,140,560 and allege
defective work on the Stillwell Avenue project and upon a loss/profit agreement
for both the Stillwell Avenue project and the 39th Street Bridge project. The
Company has counterclaimed for the amounts set forth above in the discussion of
the two actions involving Perini Corporation, and its claims are based upon the
same theories as are
<PAGE>
set forth above.
The Company filed its third action in the New York Supreme Court,
Suffolk County on or about May 13, 1997. The action names Kiska Construction,
the State of New York, acting through the New York State Comptroller, the New
York State Department of Transportation, and the Seaboard Surety company as
defendants. The Company's claim for relief in this action is $279,346. This
claim is based upon filed mechanic's liens and general contract law. The claim
is for labor performed and materials supplied including money owed under the
contract and money due for "extra" work regarding the rehabilitation of the
Robert Moses Causeway Northbound Bridge over the State Boat Channel, in Suffolk
County, New York. This action is still in the discovery phase.
In August 1997, the Company entered into an agreement settling the
January 1997 trademark infringement claim made by The Ohio Bridge Corporation.
The Company has agreed to effect a name change to USA Bridge Construction of
N.Y., Inc. before the end of the 1997 calendar year.
In April 1995, the Company (then Metro Steel Structures, Ltd.)
commenced an Article 78 proceeding in the Supreme Court of the State of New
York, County of New York, against the Commissioners of the State Insurance Fund
and the State Insurance Fund to annul the cancellation of the Company's workers'
compensation policy and to annul the rates, classifications, and premiums
assigned to the Company. This action claims that defendants audited the
Company's books for purposes of assigning the workers' compensation rates and
premiums to be assessed against the Company and thereafter (i) "arbitrarily and
capriciously and without any foundation in law or in fact" assigned to the
Company's employees improper job classifications which were then used unlawfully
as the basis for improperly assessing the highest premium rates which could be
assessed against the Company; (ii) improperly applied said premiums
retroactively; (iii) billed the Company for premiums which were improper and
excessive; and (iv) canceled the Company's workers' compensation policy upon the
Company's failure to tender payment in the improper and excessive amount
demanded by defendants.
The Company is prosecuting this action to the fullest extent possible.
On September 30, 1997, the Company and defendants were scheduled to appear
before the court for a conference in this matter. This matter was adjourned,
however, to October 28, 1997, pending settlement discussions.
In December 1995, the Commissioners of the State Insurance Fund for and
on behalf of the State Insurance Fund commenced suit against Joseph Polito,
Ronald Polito, Steven Polito, the Company, Metro Steel Structures, Ltd. (now
known as the Company), One Carnegie, and others alleging that certain workers'
compensation insurance policies obtained for various insured defendants were
obtained fraudulently and that the defendant corporations failed to pay the
appropriate premiums. The claims against the Company, amounting to approximately
$3 million, are limited to a policy covering the period April 29, 1993 through
December 1994. The Company, Messrs. Polito, and all other defendants are
defending against this action. The action is in the discovery phase, and
settlement negotiations are currently underway.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company did not submit any matters to a vote of its security
holders during the quarter ending June 30, 1997.
<PAGE>
PART II
ITEM 5. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
The Company's Common Stock and Warrants are currently quoted on the
Nasdaq National Stock Market. The following table sets forth representative high
and low sale price quotes as reported by a market maker, during the period from
August 9, 1995 through September 30, 1997. Price quotations reflect prices
between dealers, do not include resale mark-ups, mark-downs or other fees or
commissions.
<TABLE>
<CAPTION>
Common Stock Warrants
Calendar Period Low High Low High
1995
<S> <C> <C> <C> <C>
08/09/95 - 09/30/95 6 7/8 9 3/8 2 7/8 4
10/01/95 - 12/31/95 7 1/4 10 3/8 3 1/2 5 7/8
1996
01/01/96 - 03/31/96 9 3/4 10 1/2 5 1/4 6 1/2
04/01/96 - 06/30/96 9 1/2 10 7/8 5 1/4 6 5/8
07/01/96 - 09/30/96 1 10 3/4 3/16 6
10/01/96 - 12/31/96 1 1/8 2 1/16 3/32 13/32
1997
01/01/97 - 03/31/97 1 3/8 2 3/4 5/32 5/8
04/01/97 - 06/30/97 1 9/16 2 5/8 9/32 17/32
07/01/97 - 09/30/97 2 3/16 2 23/32 1/4 15/32
----------------
</TABLE>
Each Warrant entitles the holders thereof to purchase one share of the
Company's Common Stock at an exercise price of $3.00 per share, respectively,
until August 8, 2000. The Warrants and the underlying shares of Common Stock are
in registered form, pursuant to the terms of a Warrant agreement between the
Company and North American Transfer Co., as warrant agent, so that the holders
of the Warrants will receive upon their exercise and payment therefor,
unrestricted shares of Common Stock.
<PAGE>
As of September 30, 1997, there were approximately 20 holders of record
of the Company's Common Stock, although the Company believes that there are
approximately 1200 additional beneficial owners of shares of Common Stock held
in street name. As of September 30, 1997, the number of shares of Common Stock
outstanding of the Company was 2,302,515.
The Company has paid no dividends and has no present plan to pay
dividends. Payment of future dividends will be determined from time to time by
its board of directors, based upon its future earnings (if any), financial
condition, capital requirements and other factors. The Company is not presently
subject to any contractual or similar restriction on its present or future
ability to pay such dividends.
ITEM 6. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
General
The Company recognizes revenue and costs for all contracts under the
percentage of completion method. Cost of contract revenues includes all direct
material and labor costs and those indirect costs related to contract
performance. General and administrative expenses are accounted for as period
costs and are, therefore, not included in the calculation of the estimates to
complete construction contracts in progress. Material project losses are
provided for in their entirety without reference to the percentage of
completion. As contracts can extend over one or more accounting periods,
revisions in costs and earnings estimated during the course of the work are
reflected during the accounting period in which the facts become known. An
amount equal to the costs attributable to unapproved change orders and claims is
included in the total estimated revenue when realization is probable.
The current asset, "costs and estimated earnings in excess of billings
on uncompleted contracts," represents costs and estimated earnings in excess of
amounts billed on respective uncompleted contracts at the end of each period.
The current liability, "billings in excess of costs and estimated
earnings on uncompleted contracts," represents billings which exceed costs and
estimated earnings on respective uncompleted contracts at the end of each
period.
The Company was formed by Joseph Polito, its President, to serve
primarily as a general contractor for public and private sector construction
projects. The public sector projects are sponsored by federal, state, and local
government authorities in New York State and in the New York City metropolitan
area. Previously, Mr. Polito, through other entities, furnished and provided
steel erection as a subcontractor for private and governmental construction
projects. Since its commencement of operations in June 1993, the Company has
provided steel erection services for building, roadway, and bridge repair
projects for general contractors who have been engaged by private, municipal,
and/or governmental customers.
The Company's operations are substantially controlled by Joseph Polito
since he owns approximately 61% of the outstanding shares of Corp., the parent
company which owns approximately 53.2% of the Common Stock of the Company;
hence, Mr. Polito may be considered the beneficial owner of the Company. Mr.
Polito is also a 100% shareholder of RSJJ. Pursuant to a signed lease agreement
which expires on March 31, 1998, RSJJ leases office space to the Company at a
cost of $20,000 per month. Mr. Polito also has ownership interests in Waldorf
(which ceased operations on August 1, 1995), Crown Crane, Inc., and Atlas Gem
Leasing, Inc., all of which companies provided services to the Company for the
<PAGE>
years ended June 30, 1997, and 1996. During 1997 and 1996, the Company purchased
from MD, a wholly owned subsidiary of Corp., certain materials and labor to
perform steel erection service. For the years ended June 30, 1997 and 1996,
purchases by the Company from MD amounted to $371,321 and $622,050,
respectively. MD ceased operations in November 1996; since then, the Company has
purchased its steel from unrelated parties.
The Company plans to continue to undertake projects as a subcontractor
but will focus on obtaining projects as a general contractor in both the public
and private sectors. In the New York City metropolitan area, there is an
abundance of subcontractors who have significant experience and are competitive
with respect to pricing and level of service. For those general contracting
projects it undertakes, the Company will be responsible for the performance of
the entire contract, including the work to be performed by subcontractors.
Accordingly, the Company may be subject to substantial liability if a
subcontractor fails to perform as required. In addition, unanticipated
difficulties may arise in hiring and overseeing subcontractors. The Company
requires bonding from a New York licensed bonding company in order to bid on
projects as a general contractor.
Though the Company does not believe its business is seasonal, its
operations are generally slow in the winter months due to the decrease in worker
productivity because of weather conditions. Accordingly, the Company may
experience a seasonal pattern in its operating results with lower revenue in the
third quarter of each fiscal year. Interim results also may be affected by the
timing of bid solicitation, the stage of completion of major projects, and
revenue recognition policies.
In determining whether to issue a bond, surety companies perform credit
checks and other due diligence disclosure requirements and require the Company
to maintain certain amounts of capital and liquid assets. Each company bases the
amount of bonding it will issue on a formula (devised individually) which takes
into account, inter alia, the Company's capital and liquid assets. In order for
the Company to obtain and maintain bonding, it must adhere to the requirements
stipulated in the bonding agreements, which agreements vary with each bonding
company. The bonding costs for each bond are incorporated in the contract price
of each job. These costs are carried as a line item in the requisition and are
paid by the customer. Any monies taken from the working capital for this purpose
will be replaced as monthly requisition payments are received from the customer.
Bonding requirements vary depending upon the nature of the projects to be
performed. The Company anticipates paying a fee to bonding companies of between
1 1/4% to 3 1/2% of the amount of the contracts to be performed. Since these
fees generally are payable at the beginning of a project, the Company must
maintain sufficient working capital to satisfy the fee prior to receiving
revenue from the project.
<PAGE>
In December 1996, the Company obtained a bonding commitment for a
surety line of credit ($10,000,000 single project limit) from UAGC for its
general contracting projects. The commitment allows the Company to pursue those
general contracting projects in the public and private sectors which require
performance bonds. To date, it has also allowed NY to obtain Performance Bonds
and Labor and Material Bonds for the one prime contracting and two
subcontracting projects which have required same: the EklecCo, Grand Central
Terminal, and Korean Mission projects.
Year ended June 30, 1997 as compared to the year ended June 30, 1996
Contract revenues for the years ended June 30, 1997 and 1996 amounted
to $15,455,699 and $7,091,396, respectively. This net increase of $8,364,303, or
approximately 118%, is a direct result of the Company's $17,943,400 backlog as
of June 30, 1996. This backlog amount represents the contracts the Company
entered into during the latter part of its June 30, 1996 fiscal year. During the
year ended June 30, 1997, the Company obtained new contracts and change orders
to previous contracts aggregating to approximately $3,600,347. Included in
contract revenues are revenues from joint venture profit sharing agreements on
certain projects. Joint venture revenues for the year ended June 30, 1997
totaled $0 as compared to the year ended June 30, 1996 wherein same totaled
$200,000. Accordingly, revenues for the year ended June 30, 1997 from the
Company's core business, construction contracts, increased by approximately
$8,564,000 as compared to the year ended June 30, 1996. As of June 30, 1997, the
Company's backlog amounted to approximately $6,100,000. Backlog represents the
amount of revenue the Company expects to realize from work to be performed on
uncompleted contracts in progress and from contractual agreements for which work
has not yet commenced. The Company's gross profit for the years ended June 30,
1997 and 1996 has remained constant between 27% and 28%.
For the years ended June 30, 1997 and 1996, the Company purchased from
Waldorf approximately $0 and $180,333, respectively, of the materials and labor
necessary to perform fabrication services. Effective August 1, 1995, Waldorf
ceased operations. Waldorf is under the common control of the Company's majority
stockholder and President. Lastly, for the years ended June 30, 1997 and 1996,
the Company paid $371,321 and $622,050, respectively, to MD for materials and
labor necessary to perform steel erection services. MD is a wholly owned
subsidiary of Corp. In November 1996, MD ceased operations, and the Company
began purchasing material and labor from unrelated third party steel
fabricators. At June 30, 1997, the Company owed MD $62,606, principally for
advances in connection with the above services: such amounts are non-interest
bearing and are due on demand.
General and administrative expenses have increased by $221,302, or 10%,
to $2,342,309 for the year ended June 30, 1997, from $2,121,007 for the year
ended June 30, 1996. The increase in general administration costs is mainly
attributable to an overall increase in the Company's administrative salaries
associated with the material amount of increase in contract revenue and general
corporate overhead.
As of June 30, 1997, the Company increased its allowance for doubtful
accounts to $2,287,000 against its contract receivables. The bad debt expense
associated with the increase in allowance amounted to $1,287,000. The Company
increased its allowance for doubtful accounts based on a review of the factors
surrounding certain mechanic's liens filed for certain projects and an estimate
of the future income of other projects for which no mechanic's liens have been
filed. In management's opinion, the allowance for doubtful accounts at June 30,
1997 will be sufficient to absorb any losses which may be sustained from a
settlement with this and other customers. For the years ended June 30, 1997 and
1996, the Company had three
<PAGE>
unrelated customers, which accounted for approximately 86% and 62%,
respectively, of total revenues. As of June 30, 1997 and 1996, approximately 83%
and 89%, respectively, of contracts and retainage receivables are due from four
and three customers respectively.
Liquidity and Capital Resources
Year ended June 30, 1997 as compared to the year ended June 30, 1996
At June 30, 1997, the Company's working capital amounted to $5,673,712.
The working capital increase is principally attributable to the Company's
contracts receivable. As of June 30, 1997, the Company's net contract receivable
amounted to $8,943,147, approximately $2,424,219, or 27%, of which has been
collected through September 9, 1997.
Net cash provided by operating activities amounted to $58,821 for the
year ended June 30, 1997. The major component of such cash provision was
directly attributed to the Company's income which amounted to $387,340 and
increases in accounts receivable net of increases in its accounts payable,
payroll taxes payable, and accrued expenses. For the year ended June 30, 1996,
the net cash used for operating activities amounted to $2,122,223, which amount
is principally attributable to increases in accounts receivable and costs and
estimated earnings in excess of billings on uncompleted contracts.
With regards to financing activities, the Company provided $485,416 in
cash for the year ended June 30, 1997. Such cash was provided primarily by
advances from affiliates and officers.
As of June 30, 1997, the Company owes approximately $1,349,225 in
payroll taxes and related penalties and interest: $1,033,226 to the IRS and
$315,999 to New York State. As of June 30, 1997, the Company has been making
monthly payments to the respective tax authorities pursuant to oral agreements
negotiated with same.
On August 14, 1995, the Company successfully completed its public
offering. As a result, the Company sold 791,850 shares of Common Stock which
included 91,850 shares in connection with the exercise of the underwriter's
over-allotment options and 494,500 warrants which included 64,500 warrants
pursuant to the underwriter's over-allotment option. The Company yielded total
net proceeds of $2,077,903 after deducting the underwriter's selling expenses
and expense allowance, repayment of bridge loans and promissory notes and
related accrued interest to the bridge lenders and private investors, and the
pre-payment of the first two years' financial consulting agreement with the
underwriter. Simultaneously with the offering, the Company charged all deferred
offering costs incurred to additional paid-in capital which totaled $903,820.
Accordingly, the increase in financial activities amounting to $2,242,802 for
the year end June 30, 1996 was primarily from the Company's initial public
offering.
In June 1997, the Company and Corp. completed a transaction whereby the
Company issued 270,000 shares of its Common Stock to Corp., for the cancellation
of $480,000 in rent debt owed to RSJJ. Corp., in turn, issued 150,000 shares of
its common stock to RSJJ and 200,000 shares of its common stock to Joseph Polito
(RSJJ's president). RSJJ then transferred all of such shares to RSJJ's
mortgagor, which agreed to accept said shares as payment of RSJJ's outstanding
mortgage. As a result of this transaction, Corp. increased its ownership in the
Company to approximately 53.2%. The Company recorded a gain on the forgiveness
of debt in the amount of $243,750, the difference between the debt forgiven of
$480,000 and the fair market value of the stock of $1.75 per share with a 50%,
or $236,260, discount.
<PAGE>
In December 1994, the Board of Directors adopted the 1994 Senior
Management Incentive Plan ("the Management Plan"), which was adopted also by
shareholder consent. The Management Plan provided for the issuance of up to
150,000 shares of the Company's Common Stock in connection with the issuance of
stock options and other stock purchase rights to executive officers and other
key employees. In December 1996, the Board of Directors authorized an amendment
to the Management Plan to increase the amount of shares available to 1,000,000.
In February 1997, pursuant to a Form S-8 Registration Statement filed
with the Securities and Exchange Commission, the Company registered for resale
125,000 shares of Common Stock underlying an option which was issued to Joseph
Polito pursuant to the Management Plan. The option, exercisable at $1.10 per
share (110% of the bid price on November 27, 1996), was exercised on March 25,
1997 and resulted in the issuance of 125,000 shares of Common Stock, 60,000 of
which shares have been resold to date.
ITEM 7. FINANCIAL STATEMENTS
See attached Financial Statements.
ITEM 8. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE
Not Applicable.
<PAGE>
PART III
ITEM 9. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Officers and Directors.
The names, ages, and positions of the Company's executive Officers and
Directors are as follows:
<TABLE>
<CAPTION>
Position with the
Name Age Company
<S> <C> <C>
Joseph M. Polito 63 President and Director
Ronald J. Polito 38 Secretary and Director
Steven J. Polito 35 Treasurer and Director
Philip Neilson 71 Director
Marvin Weinstein 66 Director
</TABLE>
All Directors hold office until the next annual meeting of stockholders or
until their successors are elected and qualify. Vacancies on the Board of
Directors may be filled by the remaining Directors. Officers are elected
annually by, and serve at the discretion of the Board of Directors. There are no
family relationships between or among any Officers or Directors of the
Corporation, except that Joseph Polito is the father of both Steven and Ronald
Polito.
Joseph M. Polito has been the President and a Director of the Company since
its inception in 1990 and prior to April 1994 was the sole shareholder of the
Company. Mr. Polito has been the president and director of Corp. since April
1994. Mr. Polito oversees the running of all of the Company's operations. Since
its inception in 1994, he has also been the president and a director of MD.
Since December 1990, Mr. Polito has been the president and sole director and
shareholder of One Carnegie, a wholly owned subsidiary of Corp. Since 1988, Mr.
Polito has been a 50% shareholder of Crown Crane, Ltd., a company which leases
cranes for construction projects. Since 1986, Mr. Polito has been the president
and 100% shareholder of Atlas Gem Leasing, Inc., a company which leases
generators and other construction equipment. Mr. Polito has also been the
president and sole director and shareholder of Waldorf since 1990. Before it
ceased operating in August 1995, Waldorf fabricated steel and sold same to the
Company. Since 1983, Mr. Polito has been the president and 100% shareholder of
RSJJ, a company which owns and leases real property.
Since 1976, Mr. Polito has been a member of the Allied Building Metal
Industries, Inc. ("ABMII"), a trade association which has the authority to
negotiate with the unions in order to better the construction industry. He was
the president of same from 1992 until 1993. Since approximately 1987, Mr. Polito
has been the Chairman of the Steel Institute of New York, a trade association
similar to the ABMII. From the mid-1980's to the mid-1990's, Mr. Polito was a
member of the Building Trades Association Joint Safety Committee. Since the mid-
1970's, Mr. Polito has been a member of the of the International Union of
Structural Ironworkers, locals 40, 361, and 417. He has been co-chairman of this
organization since the early 1990's.
Ronald J. Polito has been the Secretary and a Director of the Company since
its inception in 1990. From its inception in 1990 until March 1995, he was also
the treasurer of the Company. He has been the secretary and a director of Corp.
since April 1994. Mr. Polito
<PAGE>
oversees the daily progress on all projects and analysis of the final costs
and profits of jobs completed and the preparation and bidding on new projects.
Since its inception in 1994, he has also been the secretary and a director of
MD. Since December 1990, Mr. Polito has been the secretary of One Carnegie and
Waldorf. Since 1983, Mr. Polito has been the secretary of RSJJ. Mr. Polito
received a Bachelor of Science Degree in Civil Engineering from Brooklyn
Polytechnical Institute in 1981. He is the son of Mr. Joseph Polito.
Steven J. Polito was elected Treasurer of the Company in March 1995. He had
previously been a Project Manager and has been a Director of the Company since
its inception in 1990. Mr. Polito oversees the daily operations for projects in
process and projects completed, including purchasing and leasing of materials
and machinery and the distribution of labor. Mr. Polito has been treasurer of
Corp. since March 1995 and a director of Corp. since April 1994. Since its
inception in 1994, he has been the treasurer and a director of MD. Since 1988,
Mr. Polito has been the treasurer of One Carnegie, Waldorf, and RSJJ. He is the
son of Mr. Joseph Polito.
Philip Neilson was elected Director of the Company in June 1995. Mr.
Neilson was the President and a principal shareholder of Adler & Neilson Co.,
Inc., a steel fabricating company, from 1951 to 1997. Currently, Mr. Neilson is
providing private consulting services in the field of steel fabricating. The
Company did not purchase any steel from Adler & Neilson Co., Inc.
Marvin Weinstein was elected Director of the Company in June 1995. Mr.
Weinstein was the President and sole shareholder of M. Weinstein Associates from
1988 to 1996. This company provided consulting services to the companies in the
steel industry. Mr. Weinstein retired in 1996. The Company did not engage M.
Weinstein Associates to provide any consulting services to the Company.
Significant Employees
John G. Bauer has been the chief administrative officer (a non-executive
position) of the Company since February 1995. Since its inception in March 1992,
Mr. Bauer has been the President and a Director of Dynamic Construction
Consulting, Inc. ("Dynamic"), a company of which Mr. Bauer was the founder.
Dynamic provides construction management and consulting services to the Company
and other companies. From July 1988 to March 1992, Mr. Bauer was a Vice
President of Tishman Construction Corp. of N.Y., a construction company.
Michael Panayi has been a structural engineer for the Company since its
commencement of operations in June 1993. From 1987 to 1993, Mr. Panayi was a
structural engineer for Atlas Gem.
William J. Kubilus, a professional estimator in the field of general
contracting and subcontracting since 1966, joined the Company in 1996 to provide
estimating expertise for Corp.'s general contracting and subcontracting bids.
Prior to joining the Company, from 1993 to 1996, Mr. Kubilus was an estimator
for Lazzinarro General Contracting. From 1989 to 1993, he was an estimator for
NICO Construction.
As permitted under the New York Business Corporations Law, the Company's
Certificate of Incorporation eliminates the personal liability of the Directors
to the Company or any of its shareholders for damages for breaches of their
fiduciary duty as Directors. As a result of the inclusion of such provision,
stockholders may be unable to recover damages against Directors for actions
taken by them which constitute negligence or gross negligence or
<PAGE>
which are in violation of their fiduciary duties. The inclusion of this
provision in the Company's Certificate of Incorporation may reduce the
likelihood of derivative litigation against Directors and other types of
shareholder litigation.
Certain Reports
No person who during the fiscal year ended June 30, 1997 was a Director,
Officer, or beneficial owner of more than ten percent of the Common Stock (which
is the only class of securities of the Company registered under Section 12 of
the Securities Exchange Act of 1934 (the "Act") (a "Reporting Person") failed to
file on a timely basis, reports required by Section 16 of the Act during the
most recent fiscal year or prior years, except Joseph Polito did not file a Form
4 with respect to his December 1996 receipt of stock options which were
exercised. Joseph Polito shall file a Form 5 on or before November 26, 1997.
Corp. has not filed a Form 4 for the shares it received in June 1997 with
respect to the debt cancellation regarding the Company's lease. Corp. shall file
a Form 5 with respect to this issuance on or before November 26, 1997. The
foregoing is based solely upon a review by the Company of (i) Forms 3 and 4 as
furnished (during the most recent fiscal year) to the Company in accordance with
Rule 16a-3(d) of the Act; (ii) Forms 5 and amendments thereto as furnished to
the Company with respect to its most recent fiscal year; and (iii) any
representations received by the Company from any reporting persons that no Form
5 is required, except as described herein.
ITEM 10. EXECUTIVE COMPENSATION
Summary of Cash and Certain Other Compensation
The following provides certain information concerning all Plan and
Non-Plan (as defined in Item 402 (a)(ii) of Regulation S-B) compensation awarded
to, earned by, the Company's Executive Officers, during the years ended June 30,
1997, 1996 and 1995.
<PAGE>
Summary Compensation Table
Annual Compensation
<TABLE>
<CAPTION>
(a) (b) (c) (d) (e) (f) (g)
Name Restricted
and Principal Other Annual Stock Options/
Position Year Salary ($) Bonus ($) Compensation ($) Awards ($) (1) SARS (#)
- ------------------ ---- --------------- --------- ---------------- -------------- --------
<S> <C> <C> <C> <C> <C> <C>
Joseph Polito 1997 $330,000 - $ 68,642 (2) - 125,000
President and 1996 300,000 - 111,911 (2) - -
Director 1995 378,000 - 68,200 (2) - 25,000
Ronald Polito 1997 $118,800 - $ 17,194 (3) - -
Secretary and 1996 125,000 - 15,144 (3) - -
Director 1995 121,000 - 21,200 (3) - -
Steven Polito 1997 $86,580 - $ 8,572 (4) - -
Treasurer and 1996 94,000 - 8,275 (4) - -
Director 1995 91,575 - 9,900 (4) - -
</TABLE>
(1) At the end of the fiscal year, Joseph Polito owned 65,000 shares of
Common Stock valued at $ 158,600. Ronald Polito and Steven Polito do
not own any Common Stock of the Company. The valuation is based on the
closing price of Common Stock ($2.44) on June 27, 1997 (the last day of
the fiscal year in which the stock traded), as reported by a market
maker.
(2) Includes (i) the payment of premiums on a life insurance policy of
$10,722, $54,362, and $46,000 for the years ended June 30, 1997, 1996,
and 1995, respectively, (ii) the payment of travel expenses of $50,000,
$50,000, and $22,200 for the years ended June 30, 1997, 1996, and 1995,
respectively, and (iii) the payment of an automobile lease of $7,920
and $7,549 for the years ended June 30, 1997 and 1996, respectively.
See " - Employment Agreement."
(3) Includes (i) payments on an automobile lease of $5,416, $5,416, and
$8,000 for the years ended June 30, 1997, 1996, and 1995, respectively;
(ii) the payment of premiums on a term life insurance policy of $8,510,
$4,684, and $5,800 for the years ended June 30, 1997, 1996 and 1995,
respectively; and (iii) a travel allowance of $3,268, $2,971, and
$7,400, for the years ended June 30, 1997, 1996, and 1995,
respectively.
(4) Includes (i) payments on an automobile lease of $5,304, $5,304, and
$6,700 for the years ended June 30, 1997, 1996, and 1995, respectively;
and (ii) a travel allowance of $3,268, $2,971, and $3,200 for the years
ended June 30, 1997, 1996, and 1995, respectively.
<PAGE>
Stock Options
The following table sets forth certain information concerning the grant
of stock options made during the year ended June 30, 1997 under the
Corporation's 1994 Senior Management Incentive Plan.
OPTION/SAR GRANTS IN LAST FISCAL YEAR
(Individual Grants)
<TABLE>
<CAPTION>
====================================================================================================================================
Individual Grants
- ------------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d) (e)
% of Total
# of Securities Options/SAR's
underlying Granted to
Options/SAR's Employees in Exercise or Base
Name Granted (1) Fiscal Year Price ($/SH) Expiration Date
---- ------------ ------------ ------------- ---------------
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Joseph M. Polito 125,000 100% $1.10 December 1, 2001
====================================================================================================================================
- ------------------------
</TABLE>
(1) Represents incentive stock options granted under the Management Plan.
Mr. Polito exercised this option in full and resold 60,000 shares of
same.
The following table contains information with respect to employees of
the Company and options held as of June 30, 1997.
<TABLE>
<CAPTION>
AGGREGATED OPTION/SAR EXERCISE IN LAST FISCAL YEAR
AND FY-END OPTION/SAR VALUES
================================================================================================================================
(a) (b) (c) (d) (e)
- --------------------------------------------------------------------------------------------------------------------------------
Value of
Unexercised In-The-
Number of Money
Unexercised Options/SAR's at
Options/SAR's at FY- FY-End($)
Shares Acquired on Value End (#) Exercisable/ Exercisable/
Name Exercise (#) (1) Realized($) (2) Unexercisable Unexercisable (3)
---- ----------------- --------------- ------------- -----------------
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Joseph M. Polito 125,000 $100,000 15,000/10,000 0/0
================================================================================================================================
- ----------------------------
</TABLE>
(1) Joseph Polito sold 65,000 of the shares acquired on exercise.
(2) Based on the closing price of Common Stock ($1.90) on March 25, 1997,
as reported by a market maker.
(3) Based on the closing price of Common Stock ($2.44) on June 27, 1997
(the last day of the fiscal year in which the stock traded), as reported by a
market maker. Since the Options are exercisable at $5.50, there is no value to
such options as of such date.
<PAGE>
Employment Agreement
On April 4, 1995, Joseph Polito entered into an employment agreement
with the Company whereby he agreed to devote 80% of his business time to the
affairs of the Company. The agreement is for a term of approximately three years
and expires June 30, 1998. Pursuant to the terms of the agreement, Mr. Polito is
to receive an annual salary of $300,000 until June 30, 1996, with 10% yearly
escalations, subject to adjustment by the Board of Directors. Mr. Polito is also
to receive a yearly non-accountable expense allowance of $50,000. Mr. Polito
received stock options under the Management Plan to purchase 25,000 shares at
$5.50 per share, vesting at the rate of 7,500 in each of April 1996 and 1997 and
10,000 in April 1998. Mr. Polito also has the right to receive a yearly bonus
equal to five percent (5%) of the first $1,000,000, upon reaching $1,000,000,
and five percent (5%) of the next $500,000, upon reaching $1,500,000, and five
percent (5%) after $1,500,000, of all the pre-tax profits of the Company. The
Company shall pay to Mr. Polito a monthly draw of $10,000 against the bonus.
Pursuant to the agreement, the Company shall pay the premiums on a $3,500,000
life insurance policy for the benefit of individuals as directed by Mr. Polito,
with an estimated yearly premium of $80,000. The agreement restricts Mr. Polito
from competing with the Company for a period of one year after the termination
of his employment. The agreement provides for severance compensation to be paid
to Mr. Polito if his employment with the Company is terminated or there is a
decrease in responsibilities or duties following a change in control of the
Company. The severance compensation shall be made in one payment equal to three
times the aggregate annual compensation paid to the Employee during the
preceding calendar year.
Since March 1995 and April 1994, Steven and Ronald Polito have received
annual salaries of $94,000 and $125,000, respectively, from the Company. Both
individuals also receive a car allowance equal to the monthly lease payments on
their automobiles and travel expenses. Ronald Polito receives the payment of
premiums on a life insurance policy of which he chooses the beneficiaries.
Neither individual has entered into an employment agreement with the Company.
1994 Senior Management Incentive Plan
In December, 1994, the board of directors adopted the 1994 Senior
Management Incentive Plan (the "Management Plan"), which was adopted by
shareholder consent. The Management Plan provided for the issuance of up to
150,000 shares of the Company's Common Stock in connection with the issuance of
stock options and other stock purchase rights to executive officers and other
key employees. In December, 1996, the board of directors authorized an amendment
the Management Plan to increase the amount of stock provided for to 1,000,000.
The amendment was adopted by shareholder consent.
The adoption of the Management Plan was prompted by the Company's
desire (i) to attract and retain qualified personnel, whose performance is
expected to have a substantial impact on the Company's long-term profit and
growth potential, by encouraging those persons to acquire equity in the
Corporation; and (ii) to provide the Board with sufficient flexibility regarding
the forms of incentive compensation which the Company will have at its disposal
in rewarding executive Officers, key employees, and consultants without
unnecessarily depleting
<PAGE>
the Company's cash reserves. The Management Plan is designed to augment the
Company's existing compensation programs and is intended to enable the Company
to offer executives, key employees, and consultants a personal interest in the
Company's growth and success through the grant of stock options and/or other
rights pursuant to the Management Plan. It is contemplated that only those
executive management employees (generally the Chairman of the Board,
Vice-Chairman, Chief Executive Officer, Chief Operating Officer, President, and
Vice-Presidents of the Company) who perform services of special importance to
the Company will be eligible to receive compensation under the Management Plan.
As of the date of this Prospectus, the Company's officers and directors are
Joseph Polito, Ronald Polito, Steven Polito and Phillip Neilson, though the Plan
also includes Messrs. Bauer and Panayi. A total of 1,000,000 shares of Common
Stock will be reserved for issuance under the Management Plan.
Unless otherwise indicated, the Management Plan is to be administered
by the Board of Directors or a committee of the Board, if such a committee is
appointed for this purpose (the Board or such committee, as the case may be,
shall be referred to in the following description as "the Administrator").
Subject to the specific provisions of the Management Plan, the Administrator
will have the discretion to determine (i) the recipients of the awards; (ii) the
nature of the awards to be granted; (iii) the dates such awards will be granted;
(iv) the terms and conditions of the awards; and (v) the interpretation of the
Management Plan, except that any award granted to any employee of the Company
who is also a Director of the Company shall also be subject - in the event the
persons serving as members of the Administrator of the Management Plan at the
time such award is proposed to be granted do not satisfy the requirements
regarding the participation of "disinterested persons" set forth in Rule 16b-3
("Rule 16b-3") promulgated under the Exchange Act - to the approval of an
auxiliary committee consisting of not less than two individuals who are
considered "disinterested persons" as defined under Rule 16b-3. As of the date
hereof, the Company has not yet determined who will serve on such auxiliary
committee, if one is required.
The Management Plan generally provides that, unless the Administrator
determines otherwise, each option or right granted shall become exercisable in
full upon certain "change of control" events as described in the Management
Plan, or subject to any right or option granted under the Management Plan
(through merger, consolidation, reorganization, recapitalization, stock
dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate
structure, or otherwise), the Administrator will make appropriate adjustments to
such plans and the classes, number of shares, and price per share of stock
subject to outstanding rights or options. Generally, the Management Plan may be
amended by action of the Board of Directors, except that any amendment which (i)
would increase the total number of shares subject to such plan; (ii) extend the
duration of such plan; (iii) materially increase the benefits accruing to
participants under such plan; or (iv) change the category of persons who can be
eligible for awards under such plan, must be approved by the affirmative vote of
a majority of the shareholders entitled to vote. The Management Plan permits
awards to be made thereunder until November 2004.
Directors who are not otherwise employed by the Company will not be
eligible for participation in the Management Plan. The Management Plan provides
for four types of awards: stocks options, incentive stock rights, stock
appreciation rights (including limited stock appreciation rights) and Restricted
Stock purchase agreements (as described below).
<PAGE>
Stock Options. Options granted under the Management Plan may be either
incentive stock options ("ISOs") or options which do not qualify as ISOs
("non-ISOs"). ISOs may be granted at an option price of not less than 100% of
the fair market value of the Common Stock on the date of grant, except that an
ISO granted to any person who owns capital stock representing more than 10% of
the total combined voting power of all classes of Common Stock of the Company
("10% stockholder") must be granted at an exercise price of at least 110% for
the fair market value of the Common Stock on the date of the grant. The exercise
price of the non-ISOs may not be less than 85% of the fair market value of the
Common Stock on the date of grant. Unless the Administrator determines
otherwise, no ISO or non-ISO may be exercisable earlier than one year from he
date of grant. ISOs may not be granted to persons who are not employees of the
Company. ISOs granted to persons other than 10% stockholders may be exercisable
for a period of up to ten (10) years form the date of grant; ISOs granted to 10%
stockholders may be exercisable for a period of up to five years from he dated
of grant. No individual may be granted ISOs that become exercisable in any
calendar year for Common Stock having a fair market value at the time of grant
in excess of $100,000. Non-ISOs may be exercisable for a period of up to
thirteen (13) years from the date of grant.
Payment for shares of Common Stock purchases pursuant to exercise of
stock options shall be paid in full in (i) cash, (ii) by certified check, or,
(iii) at the discretion of the Administrator by shares of Common Stock having a
fair market value equal to the total exercise price, or (iv) by a combination of
the above. The provision that permits the delivery of already owned shares of
stocks as payment for the exercise of an option may permit "pyramiding." In
general, pyramiding enables a holder to start with as little as one share of
common stock and, by using the shares of common stock acquired in successive,
simultaneous exercises of the option, to exercise the entire option, regardless
of the number of shares covered thereby, with no additional cash or investment
other than the original share of common stock used to exercise the option.
Upon termination of employment or consulting services, an optionee will
be entitled to exercise the vested portion of an option for a period of up to
three months after the date of termination, except that if the reason for
termination was a discharge for cause, the option shall expire immediately, and
if the reason for termination was for death or permanent disability of the
optionee, the vested portion of the option shall remain exercisable for a period
of twelve (12) months thereafter.
On December 2, 1996, the Company granted to Joseph Polito, the
Company's president, an option to purchase 125,000 shares at an exercise price
of $1.10 per share (110% of the market price) in accordance with the Management
Plan. The shares were registered for resale pursuant to a Form S-8 registration
statement filed in February 1997. On March 25, 1997, Joseph Polito exercised the
option. On April 11, 1997, Mr. Polito re-sold 60,000 of these shares.
Incentive Stock Rights. Incentive stock rights consist of incentive
stock units equivalent to one share of Common Stock in consideration for
services performed for the Company. Each incentive stock unit shall entitle the
holder thereof to receive, without payment of cash or property to the Company,
one share of Common Stock in consideration for services performed for the
Company or any subsidiary by the employee, subject to the lapse of
<PAGE>
the incentive periods, whereby the Company shall issue such number of shares
upon the completion of each specified period. If the employment or consulting
services of the holder with the Company terminate prior to the end of the
incentive period relating to the units awarded, the rights shall thereupon be
null and void, except that if termination is caused by death or permanent
disability, the holder or his/her heirs, as the case may be, shall be entitled
to receive a pro rata portion of the shares represented by the units, based upon
that portion of the incentive period which shall have elapsed prior to the
holder's death or disability.
Stock Appreciation Rights (SARs). SARs may be granted to recipients of
options under the Management Plan. SARs may be granted simultaneously with, or
subsequent to, the grant of a related option and may be exercised to the extent
that the related option is exercisable, except that no general SAR (as
hereinafter defined) may be exercised within a period of six months of the date
of grant of such SAR, and no SAR granted with respect to an ISO may be exercised
unless the fair market value of the Common Stock on the date of exercise exceeds
the exercise price of the ISO. A holder may be granted general SARs ("General
SARs") or limited SARs ("Limited SARs"), or both. General SARs permit the holder
thereof to receive an amount (in cash, shares of Common Stock, or a combination
of both) equal to the number of SARs exercised multiplied by the excess of the
fair market value of the Common Stock on the exercise date over the exercise
price of the related option. Limited SARs are similar to General SARs, except
that, unless the Administrator determines otherwise, they may be exercised only
during a prescribed period following the occurrence of one or more of the
following "Change of Control" transactions: (i) the approval of the Board of
Directors of consolidation or merger in which the Company is not the surviving
corporation, the sale of all of substantially all the assets of the Company, or
the liquidation or dissolution of the Company; (ii) the commencement of a tender
or exchange offer for the Company's Common Stock (or securities convertible into
Common Stock) without the prior consent of the Board; (iii) the acquisition of
beneficial ownership by any person or other entity (other than the Company or
any employee benefit plan sponsored by the Company) of securities of the Company
representing 25% or more of the voting power of the Company's outstanding
securities; or (iv) if during any period of two years or less, individuals who
at the beginning of such period constitute the entire Board cease to constitute
a majority of the Board, unless the election, or the nomination for election, of
each new director is approved by at least a majority of the directors then still
in office.
The exercise of any portion of either the related option or the tandem
SARs will cause a corresponding reduction in the number of shares remaining
subject to the option or the tandem SARs, thus maintaining a balance between
outstanding options and SARs.
Restricted Stock Purchase Agreements. Restricted Stock purchase
agreements provide for the sale by the Company of shares of Common Stock at
prices to be determined by the Board, which shares shall be subject to
restrictions on disposition for a stated period during which the purchaser must
continue employment with the Company in order to retain the shares. Payment must
be made in cash. If termination of employment occurs for any reason within six
months after the date of purchase, or for any reason other than death or by
retirement with the consent of the Company of the Company after the six-month
period but prior to the time that the
<PAGE>
restrictions on disposition lapse, the Company shall have the option to
reacquire the shares at the original purchase price.
Restricted shares awarded under the Management Plan will be subject to
a period of time designated by the Administrator (the "restricted period")
during which the recipient must continue to render services to the Company
before the restricted shares will become vested. The Administrator may also
impose other restrictions, terms, and conditions that must be fulfilled before
the restricted shares may vest.
Upon the grant of restricted shares, stock certificates registered in
the name of the recipient will be issued and such shares will constitute issued
and outstanding shares of Common Stock for all corporate purposes. The holder
will have the right to vote the restricted shares and to receive all regular
cash dividends (and such other distributions as the Administrator may
designate), if any, which are paid or distributed on the restricted shares, and
generally to exercise all other rights as a holder of Common Stock, except that,
until the end of the restricted period, (i) the holder will not be entitled to
take possession of the stock certificates representing the restricted shares;
and (ii) the holder will not be entitled to sell, transfer, or otherwise dispose
of the restricted shares. A breach of any restrictions, terms or conditions
established by the Administrator with respect to any restricted shares will
cause a forfeiture of such restricted shares.
Upon expiration of the applicable restriction period and the
satisfaction of any other applicable conditions, all or part of the restricted
shares and any dividends or other distributions not distributed to the holder
(the "retained distributions") thereon will become vested. Any restricted shares
and any retained distributions thereon which do not so vest will be forfeited to
the Company. If prior to the expiration of the restricted period a holder is
terminated without cause or because of a total disability (in each case as
defined in the Management Plan), or dies, then, unless otherwise determined by
the Administrator at the time of the grant, the restricted
period applicable to each award of restricted shares will thereupon be deemed to
have expired. Unless the Administrator determines otherwise, if a holder's
employment terminates prior to the expiration of the applicable restricted
period for any reason other than as set forth above, all restricted shares and
any retained distributions thereon will be forfeited.
Accelerating of the vesting of the restricted shares shall occur, under
the provisions of the Management Plan, on the first day following the occurrence
of any of the following: (a) the approval by the stockholders of the Company of
an "Approved Transaction"; (b) a "Control Purchase"; or (c) a "Board Change."
An "Approved Transaction" is defined as (A) any consolidation or merger
of the Company in which the Company is not the continuing or surviving
corporation or pursuant to which shares of Common Stock would be converted into
cash, securities or other property other than a merger of the Company in which
the holders of the Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock of the surviving corporation immediately
after the merger, or (B) any sale, lease, exchange, or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
of the assets of the Company, or (C) the adoption of any plan or proposal for
the liquidation or dissolution of the Company.
<PAGE>
A "Control Purchase" is defined as circumstances in which any person
(as such term is defined in Sections 13(d)(3) and 14(d)(2) of the Exchange Act),
corporation or other entity (other than the Company or any employee benefit plan
sponsored by the Company) (A) shall purchase any Common Stock of the Company (or
securities convertible into the Company's Common Stock) for cash, securities, or
any other consideration pursuant to a tender offer or exchange offer, without
the prior consent of the Board of Directors, or (B) shall become the "beneficial
owner" (as such term is defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing twenty-five percent
(25%) or more of the combined voting power of the then outstanding securities of
the Company ordinarily (and apart from rights accruing under special
circumstances) having the right to vote in the election of directors (calculated
as provided in paragraph (d) of such Rule 13d-3 in the case of rights to acquire
the Company's securities).
A "Board Change" is defined as circumstances in which, during any
period of two consecutive years or less, individuals who at the beginning of
such period constitute the entire Board shall Cease for any reason to constitute
a majority thereof unless the election, or the nomination for election by the
Company's stockholders, of each new director was approved by a vote of at least
a majority of the directors then still in office.
<PAGE>
ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table sets forth certain information at September 30,
1997, based upon information obtained by the persons named below, with respect
to the beneficial ownership of shares of Common Stock by (i) each person known
by the Company to be the owner of 5% or more of the outstanding shares of Common
Stock; (ii) by each Officer and Director; (iii) and by all Officers and
Directors as a group.
<TABLE>
<CAPTION>
Percent of
Number of Common
Name Shares Stock Owned
- ---- --------- -----------
<S> <C> <C>
U.S. Bridge Corp.(1) 1,240,665 53.5%
53-09 97th Place
Corona, New York 11368
Joseph Polito (2) 1,305,665 56.3%
c/o U.S. Bridge Corp.
53-09 97th Place
Corona, New York 11368
Steven Polito - -
c/o U.S. Bridge Corp.
53-09 97th Place
Corona, New York 11368
Ronald Polito - -
c/o U.S. Bridge Corp.
53-09 97th Place
Corona, New York 11368
Philip Neilson - -
c/o U.S. Bridge Corp.
53-09 97th Place
Corona, New York 11368
Marvin Weinstein - -
c/o U.S. Bridge Corp.
53-09 97th Place
Corona, New York 11368
All Officers and Directors
as a group (5 persons) (2) 1,305,665 56.3%
</TABLE>
(1) Does not include the shares issuable upon the exercise of the Special
Warrant or the voting rights included in the shares of Series A
Preferred Stock issuable upon the happening of certain events.
(2) Joseph Polito owns approximately 61% of the outstanding shares of Corp.
and may be considered the beneficial owner of the shares of the Company
owned by Corp. Includes 15,000 shares issuable upon the exercise of
stock options granted to Joseph Polito, all of which are vested. Does
not include (i) 10,000 shares issuable upon the exercise of options not
presently vested; or (ii) 60,000 shares issued upon the exercise of an
option; these shares have been resold.
<PAGE>
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
On September 1, 1995, in conjunction with the underwriter of the
Company's public offering exercising its over-allotment option to purchase
91,850 additional shares of the Company's Common Stock, the Company exercised
its Special Warrant and purchased 5,665 shares of the Company's Common Stock at
$2.50 per share.
On October 11, 1995, the Company paid One Carnegie $50,000 on behalf of
MD, a wholly owned subsidiary of Corp., for fabrication services performed by
MD. Such payment was treated as a payment on account by the Company to MD. From
July 1995 to October 1995 the Company paid MD approximately $183,000 for the
labor associated with the fabrication of steel.
During the year ended June 30, 1996, the Company purchased
approximately $180,333 of fabricated steel from Waldorf. Such amount represented
approximately 18% of the steel purchased by the Company for the year ended June
30, 1996. Waldorf is wholly owned by Joseph Polito.
During the years ended June 30, 1997 and 1996, the Company paid
$371,321 and $802,383, respectively, to MD for certain materials and labor
necessary to perform steel erection services.
During the years ended June 30, 1997 and 1996, the Company paid
$214,000 and $163,000, respectively, to Crowne Crane, Inc. for leasing of cranes
necessary to perform steel erection services. Joseph Polito owns 50% of Crowne
Crane, Inc.
During the year ended June 30, 1997, the Company paid $35,000 to Atlas Gem
Leasing, Inc. for certain machinery necessary to perform steel erection
services. Atlas Gem Leasing, Inc. is wholly owned by Joseph Polito.
On March 25, 1997, the Company issued 125,000 shares of Common Stock to
Joseph Polito upon exercise by Mr. Polito of an option to purchase 125,000
shares at an exercise price of $1.10 per share. The option was granted under the
Company's Management Plan in December 1996. In February 1997, a Form S-8
Registration Statement was filed with the Securities and Exchange Commission,
registering the sale of these shares underlying the option.
On April 11, 1997, Mr. Polito sold 60,000 of these shares.
On June 19, 1997, the Company was in arrears in the amount of $480,000
in payments due under its lease with RSJJ. The Company leases its administrative
office space and certain storage space from RSJJ, a corporation owned by Joseph
Polito. In accordance with a signed lease agreement which expires on March 31,
1998 the Company pays rent in the amount of $20,000 per month. This arrearage
was converted into equity as follows: the Company issued 270,000 shares of
Common Stock to Corp., for the cancellation of the debt owed. Corp., in turn,
issued 200,000 shares of its common stock to Mr. Polito and 150,000 shares of
its common stock to RSJJ. RSJJ then transferred all of its Corp. shares to its
mortgagor, who agreed to accept said shares as payment of RSJJ's outstanding
mortgage.
See "Item 10. Executive Compensation-Employment Agreement" for
information regarding management's compensation.
<PAGE>
PART IV
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K
(a) The following financial statements of the Company are included as Part II,
Item 8:
<TABLE>
<CAPTION>
Page
<S> <C>
Independent Auditors Report ....................................................... F-1
Balance Sheet ..................................................................... F-2
Statements of Operations .......................................................... F-3
Statement of Stockholders' Equity ................................................. F-4
Statements of cash flows .......................................................... F-5
Notes of financial statements ..................................................... F-6 - F-15
</TABLE>
(b) During the last quarter, the Company filed no reports on Form 8-K.
(c) All exhibits, except those designated with an asterisk (*) which are filed
herewith, previously have been filed with the Commission in connection with the
Company's Registration Statement on Form SB-2, dated August 9, 1995 under file
No. 33-89230-NY and pursuant to 17 C.F.R. ss.230.411. The previously filed
exhibits bear the same exhibit number as indicated below and are incorporated by
reference herein.
<TABLE>
<CAPTION>
<S> <C>
3.1 - Certificate of Incorporation of the Company filed September 4, 1990.
3.2 - Certificate of Amendment to the Certificate of Incorporation of the
Company filed January 31, 1995.
3.3 - By-Laws of the Company.
3.3 - Specimen Common Stock Certificate.
4.1 - Specimen Redeemable Common Stock Warrant Certificate.
4.3 - Form of Redeemable Common Stock Warrant Agreement between the
Company and Continental Stock Transfer & Trust Company.
4.4 - Form of Special Warrant.
4.6 - U.S. Bridge Corp. note issued in January 1995.
4.7 - Form of Promissory Note sold in Private Placement in March 1995.
4.8 - Stock option and Agreement issued to Joseph Polito.
10.2 - Stock Purchase Agreement between Corp. and the Company.
10.3 - Employment Agreement of Joseph Polito.
10.4 - Lease Agreement between the Company and R.S.J.J. Realty Corp.
10.5 - The Company Incentive Stock Option Plan.
10.6 - Agreement between Iron Workers Local Union 40 and the Company.
<PAGE>
10.7 - Agreement between Local Union 14, 14B, 15,
15A, 15C, 15D, International Union of Operating
Engineers, AFL-CIO and the Company.
10.8 - Agreement between Local 780 and the Company.
10.9 - Subcontractor agreement between the Company and McKay Enterprises,
Inc., with respect to the reconstruction of 4th Avenue Bridge.
10.10 - Subcontractor agreement between the Company and Perini Corporation,
with respect to the rehabilitation of Stillwell Avenue Station on Coney
Island.
10.11 - Subcontractor agreement between the Company and
Perini Corporation, with respect to the
rehabilitation of 39th Street Bridge over L.I.R.R.
10.12 - Subcontractor agreement between the Company and KISKA Construction
Corporation-USA, with respect to the rehabilitation of Robert Mosses
Causeway.
10.13 - Agreement between Atlas and the Company pursuant to the sale of
contracts.
10.14 - Promissory Note issued to First Bank of the Americas.
10.15 - Subcontractor agreement between the Company and McKay Enterprises,
Inc., with respect to the rehabilitation of the
Kosciuszko Bridge.
10.17 - Agreement to capitalize the $400,000 debt into 320,000 shares of U.S.
Bridge Corp.
10.18* - Subcontractor agreement between the Company and Trataros
Construction Inc. (the Williamsburg Houses project), dated April 11,
1996.
10.19* - Subcontractor agreement between the Company and Hannibal
Construction Co., Inc. ("the Hellgate Viaduct Structures project), dated
October 30, 1996.
10.20* - Subcontractor agreement between the Company and
N.Y. Iron (the Indonesian Mission project), dated
November 6, 1996.
10.21* - Prime contractor agreement between the Company and
Eklec Co. (the Palisades Power Mall project), dated
June 17, 1996.
10.22* - Subcontractor agreement between the Company and Lehrer McGovern,
Bovis, Inc., dated May 15, 1996.
10.23* - Prime contractor agreement between the Company and
Tishman Construction Corporation of New York, dated
July 24, 1996. (the Louis Vuitton project)
10.24* - Subcontractor agreement between the Company and Humphreys &
Harding, Inc. (the Korean Mission project), dated January 15 1997.
27.1 - Financial Data Schedule.
</TABLE>
<PAGE>
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized, this 7th day of November, 1997.
U.S. BRIDGE OF N.Y., INC.
By: /s/ Joseph M. Polito
Joseph M. Polito, President
In accordance with the Exchange Act, this report has been signed below
by the following persons on behalf of the Registrant and in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Joseph M. Polito President and Director 11/07/97
Joseph M. Polito (Chief Executive Date
Officer)
/s/ Ronald J. Polito Secretary and Director 11/07/97
Ronald J. Polito Date
/s/ Steven J. Polito Treasurer 11/07/97
Steven J. Polito Date
/s/ Phillip Neilson Director 11/07/97
Phillip Neilson Date
/s/ Marvin Weinstein Director 11/07/97
Marvin Weinstein Date
</TABLE>
<PAGE>
U.S. BRIDGE OF N.Y., INC.
INDEX TO FINANCIAL STATEMENTS
FOR THE YEARS ENDED JUNE 30, 1997 AND 1996
<TABLE>
<CAPTION>
Page
Number
<S> <C>
Independent auditors' report .............................................................................. F-1
Balance sheet as of June 30, 1997 ......................................................................... F-2
Statements of operations for the years ended
June 30, 1997 and 1996 ................................................................................... F-3
Statement of stockholders' equity for the years ended
June 30, 1997 and 1996 ................................................................................... F-4
Statements of cash flows for the years ended
June 30, 1997 and 1996 ................................................................................... F-5
Notes to financial statements ............................................................................. F-6 - F-14
</TABLE>
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Stockholders of U.S. Bridge of N.Y., Inc.
We have audited the accompanying balance sheet of U.S. Bridge of N.Y., Inc.
("the Company") as of June 30, 1997 and the related statements of operations,
stockholders' equity and cash flows for the years ended June 30, 1997 and 1996.
These financial statements are the responsibility of the Company's management.
Our responsibility is to
F-1
<PAGE>
U.S. BRIDGE OF N.Y., INC.
BALANCE SHEET
JUNE 30, 1997
<TABLE>
<CAPTION>
ASSETS
Current assets:
<S> <C>
Cash ...................................................... $ 554,025
Cash, restricted .......................................... 214,001
Contracts and retainage receivable, net ................... 8,943,147
Costs and estimated earnings in excess of billings
on uncompleted contracts ................................. 2,225,723
Deferred tax asset ........................................ 239,750
Other current assets ...................................... 80,727
-----------
Total current assets ................................. 12,257,373
Other assets .................................................. 21,445
-----------
Total assets .................................................. $12,278,818
===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable, including cash overdraft
of $119,658 .............................................. $ 3,392,317
Accrued expenses .......................................... 915,016
Payroll taxes payable ..................................... 1,349,225
Due to related parties .................................... 321,894
Income taxes payable ...................................... 507,379
Billings in excess of costs and estimated earnings
on uncompleted contracts ................................. 126,455
Total current liabilities ............................ 6,612,286
Commitments and contingencies (Note 9) ........................ --
Stockholders' equity:
Preferred stock $.01 par value, authorized 500,000 shares,
issued and outstanding -0- ............................... --
Common stock $.001 par value, authorized 10,000,000 shares,
issued and outstanding 2,302,515 ......................... 504,047
Additional paid in capital ................................ 4,459,906
Retained earnings ......................................... 702,579
-----------
Total stockholders' equity ........................... 5,666,532
-----------
Total liabilities and stockholders' equity .................... $12,278,818
===========
</TABLE>
See accompanying notes to the financial statements.
F-2
<PAGE>
U.S. BRIDGE OF N.Y., INC.
STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED JUNE 30,
<TABLE>
<CAPTION>
1997 1996
------------ ----------
<S> <C> <C>
Contract revenue .................................. 15,455,699 $ 7,091,396
Cost of contract revenue .......................... 11,167,130 5,197,215
Gross profit ...................................... 4,288,569 1,894,181
Expenses:
General and administrative ..................... 2,342,309 2,121,007
Bad debt expense ............................... 1,287,000 1,019,127
Total expenses ............................. 3,629,309 3,140,134
Income (loss) from operations before other income
(expense) and provision (benefit) for income taxes 659,260 (1,245,953)
Other income (expenses):
Interest expense ............................... (43,341) (19,285)
Unusual item (Note 6) .......................... -- (441,863)
Gain on forgiveness of accounts payable ........ 243,750 --
Interest income ................................ 10,425 27,478
Total other (expenses) ..................... 210,834 (433,670)
Income (loss) before provision (benefit)
for income taxes ................................. 870,094 (1,679,623)
Provision (benefit) for income taxes .............. 267,629 (855,250)
Net income (loss) ................................. $ 602,465 $ (824,373)
============ ============
Income (loss) per common equivalent share:
Income (loss) before provision (benefit)
for income taxes .............................. $ .44 $ (.93)
============ ============
Provision (benefit) for income taxes ........... $ .14 $ (.47)
============ ============
Net income (loss) .............................. $ .30 $ (.46)
============ ============
Weighted average number of shares outstanding ..... 1,961,265 1,807,354
============ ============
</TABLE>
See accompanying notes to financial statements.
F-3
<PAGE>
U.S. BRIDGE OF N.Y., INC.
STATEMENT OF STOCKHOLDERS EQUITY
FOR THE YEARS ENDED JUNE 30, 1997 AND 1996
<TABLE>
<CAPTION>
Common
stock
Additional Total
paid in Retained stockholders
Shares Amount capital earnings equity
<S> <C> <C> <C> <C> <C>
Balances at July 1, 1995 ......... 1,110,000 $ 502,854 $ 968,306 $ 924,487 $ 2,395,647
Issuance of common stock and
warrants from initial public
offering ........................ 791,850 792 4,007,908 -- 4,008,700
Cost associated with initial
public offering ................. -- -- (903,820) -- (903,820)
Issuance of shares in connection
with exercise of special warrants 5,665 6 14,157 -- 14,163
Net loss for the year
ended June 30, 1996 ............. -- -- -- (824,373) (824,373)
----------- ----------- ----------- ----------- -----------
Balances at June 30, 1996 ........ 1,907,515 503,652 4,086,551 100,114 4,690,317
Issuance of common shares
in connection with the exercise
of options ...................... 125,000 125 137,375 -- 137,500
Issuance of common stock
in connection with settlement
of related party debt ........... 270,000 270 235,980 -- 236,250
Net income for the year
ended June 30, 1997 ............. -- -- -- 602,465 602,465
----------- ----------- ----------- ----------- -----------
Balances at June 30, 1997 ........ 2,302,515 $ 504,047 $ 4,459,906 $ 702,579 $ 5,666,532
=========== =========== =========== =========== ===========
</TABLE>
See accompanying notes to financial statements.
F-4
<PAGE>
U.S. BRIDGE OF N.Y., INC.
STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED JUNE 30,
<TABLE>
<CAPTION>
1997 1996
Cash flows from operating activities:
<S> <C> <C>
Net income (loss) ................................... $ 602,465 $ (824,373)
Adjustments to reconcile net income (loss) to net
cash used for operating activities:
Amortization of financing costs ................. -- 441,863
Bad debt expense ................................ 1,287,000 1,019,127
Deferred income tax benefit ..................... (239,750) --
Gain on issuance of stock ....................... (243,750) --
Decrease (increase) in:
Contracts and retainage receivable ........... (6,789,756) (1,539,045)
Costs and estimated earnings in excess of
billings on uncompleted contracts .......... 207,801 (607,395)
Other current assets ......................... (20,415) (11,256)
Increase (decrease) in:
Accounts payable ............................. 2,946,778 381,199
Accrued expenses ............................. 629,622 (220,934)
Payroll taxes payable ........................ 1,061,559 77,274
Income taxes payable ......................... 507,379 (855,250)
Billings in excess of costs and estimated
earnings on uncompleted contracts ........... 109,888 16,567
----------- -----------
Net cash provided by (used for) operating activities ... 58,821 (2,122,223)
----------- -----------
Cash flows from financing activities:
Financing costs incurred ............................ (35,000) --
Proceeds from (repayments to) officers .............. 273,181 (5,963)
Proceeds from (repayments to) affiliates ............ 128,410 (19,784)
Proceeds from related parties ....................... 118,825 16,752
Proceeds from initial public offering and
exercise of special warrants net of costs .......... -- 3,222,597
Repayment of notes payable .......................... -- (972,000)
----------- -----------
Net cash provided by financing activities .............. 485,416 2,241,602
----------- -----------
Net increase in cash ................................... 544,237 119,379
Cash, beginning ........................................ 223,789 104,410
----------- -----------
Cash, ending ........................................... $ 768,026 $ 223,789
=========== ===========
Supplemental disclosure of cash flow information:
Interest paid ....................................... $ 21,612 $ 11,342
=========== ===========
Taxes paid .......................................... $ 678 $ 704
=========== ===========
Issuance of 270,000 shares of common stock in connection
with settlement of related party debt ................. $ 236,250 $ --
=========== ===========
Issuance of 125,000 shares of common stock in connection
with exercise of options .............................. $ 137,500 $ --
=========== ===========
</TABLE>
See accompanying notes to financial statements.
F-5
<PAGE>
U.S. BRIDGE OF N.Y., INC.
NOTES TO FINANCIAL STATEMENTS
FOR THE YEARS ENDED JUNE 30, 1997 AND 1996
NOTE 1 - ORGANIZATION
U.S. Bridge of N.Y., Inc. ("the Company") is a New York corporation which
provides steel erection for building, roadway and bridge repair projects for
contractors who have been engaged by private and municipal/governmental clients.
During June 1996, the Company began providing prime contracting (similar to
general contracting services). The Company was incorporated on September 4, 1990
and is a 53.23% owned subsidiary of U.S. Bridge Corp. ("Bridge Corp."). The
Company's President is also the majority stockholder 61% of Bridge Corp. and may
be considered the beneficial owner of the Company.
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
a) Use of estimates
The preparation of the financial statements in conformity with
generally accepted accounting principles requires management
to make estimates and assumptions that affect the amounts
reported as assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenue and expenses
during the reporting period. The most significant estimates
with regard to these financial statements relate to the
estimating of final construction contract profits in
accordance with accounting for long-term contracts and
estimating potential liabilities in conjunction with certain
contingencies and commitments. Actual results could differ
from these estimates.
b) Contracts and retainage receivable
Contracts receivable include receivables which represent
amounts billed but uncollected on completed construction
contracts and construction contracts in progress and unbilled
retainage on completed and in progress construction contacts.
The Company utilizes the allowance method for recognizing the
collectibility of its contracts receivable. The allowance
method recognizes bad debt expense based on a review of the
individual accounts outstanding based on the surrounding facts
and estimates made by management.
c) Revenue recognition
The Company recognizes revenue and costs for all contracts
under the percentage of completion method. Cost of contract
revenues includes all direct material and labor costs and
those indirect costs related to contract performance. General
and administrative expenses are accounted for as period costs
and are, therefore, not included in the calculation of the
estimates to complete construction contracts in progress.
Material project losses are provided for in their entirety
without reference to the percentage of completion. As
contracts can extend over one or more accounting periods,
revision in costs and earnings estimated during the course of
the work are reflected during the accounting period in which
the facts become known. An amount equal to the costs
attributable to unapproved change orders and claims is
included in the total estimated revenue when realization is
probable.
F-6
<PAGE>
U.S. BRIDGE OF N.Y., INC.
NOTES TO FINANCIAL STATEMENTS
FOR THE YEARS ENDED JUNE 30, 1997 AND 1996
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Cont'd)
c) Revenue recognition (cont'd)
The current asset, "costs and estimated earnings in excess of
billings on uncompleted contracts", represents costs and
estimated earnings in excess of amounts billed on respective
uncompleted contracts at the end of each period.
The current liability, "billings in excess of costs and
estimated earnings on uncompleted contracts," represents
billings which exceed costs and estimated earnings on
respective uncompleted contracts at the end of each period.
d) Cash and cash equivalents
For purposes of the statements of cash flows, the Company
considers all highly liquid investments purchased with an
original maturity of six months or less to be cash
equivalents. The Company at June 30, 1997 maintains its cash
deposits in accounts which are in excess of federal deposit
insurance corporation limits by $244,625.
As of June 30, 1997, the Company maintains $214,001
of restricted cash securing a credit line from a financial
institution on behalf of US Bridge.
e) Earnings (loss) per common share
Earnings (loss) per common share for the year ended June 30,
1997 and 1996 are based upon the weighted average number of
common stock outstanding during the respective periods.
f) Income taxes
The Company accounts for income taxes in accordance with
Statement of Financial Accounting Standards No. 109,
"Accounting for Income Taxes" which requires the use of the
"liability method" of accounting for income taxes.
Accordingly, deferred tax assets and liabilities are
determined based on the difference between the financial
statement and tax bases of assets and liabilities, using
enacted tax rates in effect for the year in which the
differences are expected to reverse. In addition, future tax
benefits, such as net operating loss carryforwards, are
recognized currently to the extent such benefits are more
likely than not to be realized as an economic benefit in the
form of a reduction of income taxes in future years. Current
income taxes are based on the respective periods' taxable
income for Federal, State and City income tax reporting
purposes.
g) Fair value disclosure as of June 30, 1997
The carrying value of cash, contract and retainage receivable,
accounts payable, and accrued expenses, and payroll taxes
payable are a reasonable estimate of their fair value.
F-7
<PAGE>
U.S. BRIDGE OF N.Y., INC.
NOTES TO FINANCIAL STATEMENTS
FOR THE YEARS ENDED JUNE 30, 1997 AND 1996
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Cont'd)
h) Reclassifications
Certain reclassifications have been made to the June 30, 1996
financial statements in order to conform to the June 30, 1997
presentation.
i) Balance sheet classifications
The Company includes in current assets and liabilities
amounts receivable and payable under construction contracts
which may extend beyond one year. A one-year time period is
used as the basis for classifying all other current assets and
liabilities.
j) Impact of recently issued accounting standards
During 1995, SFAS No. 123, "Accounting for Stock-based Compensation" was
issued. The statement requires the fair value of stock options and other
stock-based compensation issued to employees to be either included as
compensation expense in the income statement, or the pro-forma effect on net
income and earnings per share to be disclosed in the footnotes to the financial
statements commencing in 1996. The Company has elected to adopt SFAS No. 123
effective July 1, 1995.
NOTE 3 - CONTRACTS AND RETAINAGE RECEIVABLE
At June 30, 1997, contract and retainage receivable consist of
the following:
Contracts in progress ................ $ 5,087,169
Completed contracts .................. 4,920,134
Unbilled retainage on completed and in
progress contracts .................. 1,222,844
11,230,147
Less: allowance for doubtful accounts (2,287,000)
$ 8,943,147
NOTE 4 - CONTRACTS IN PROGRESS
At June 30, 1997, costs and estimated earnings in excess of
billings and billings in excess of costs and estimated
earnings on uncompleted contracts consist of the following:
Costs incurred on uncompleted contracts $ 14,025,808
Profits earned to date ................ 4,190,473
------------
18,216,281
Less: billings to date ................ (16,117,013)
$ 2,099,268
F-8
<PAGE>
U.S. BRIDGE OF N.Y., INC.
NOTES TO FINANCIAL STATEMENTS
FOR THE YEARS ENDED JUNE 30, 1997 AND 1996
NOTE 4 - CONTRACTS IN PROGRESS (Cont'd)
Included in the accompanying balance sheet under the
following captions at June 30, 1997:
Costs and estimated earnings in excess of
billings on uncompleted contracts .................. $ 2,225,723
Billings in excess of costs and estimated
earnings on uncompleted contracts .................. (126,455)
$ 2,099,268
NOTE 5 - BACKLOG
The following schedule summarizes changes in backlog on
contracts during the year ended June 30, 1997. Backlog
represents the amount of revenue the Company expects to
realize from work to be performed on uncompleted contracts in
progress at year end and from contractual agreements on which
work has not yet begun.
Backlog balance at July 1, 1996 $ 17,943,400
Change orders to contracts in progress at July 1, 1996 2,486,885
New contracts during the year ended June 30, 1997 1,113,462
------------------
21,543,747
Less: contract revenue earned during
the year ended June 30, 1997 (15,455,699)
--------------------
Backlog balance at June 30, 1997 $ 6,088,048
============
NOTE 6 - PROMISSORY NOTES
On January 16, 1995, an Underwriter commenced and
privately offered on a best-efforts basis, sixteen (16) units
of the Company's securities at a price of $55,000 per unit.
Each unit consisted of a promissory note in the principal
amount of $45,000 bearing interest at 12% per annum, and
10,000 shares of common stock at $1.00 per share. The 160,000
shares sold in this offering were assigned a value of 100% of
the initial public offering price of $5.00 per share. In
relation to the common stock sold in the offering, the Company
recorded deferred financing costs of $640,000 (160,000 shares
at $5.00 per share less original cost of $1.00 per share).
Deferred financing costs were amortized on a monthly basis
until the earlier of March 1996, the due of the related
promissory notes, or the initial public offering of the
Company. As a result, as at June 30, 1997 and 1996, the
Company recorded amortization expense of $0 and $441,863,
respectively. The holders of such shares included their shares
in the Company's initial public offering. The offering was
completed on March 9, 1995 resulting in all sixteen (16) units
being sold netting proceeds to the Company of approximately
$696,851.
F-9
<PAGE>
U.S. BRIDGE OF N.Y., INC.
NOTES TO FINANCIAL STATEMENTS
FOR THE YEARS ENDED JUNE 30, 1997 AND 1996
NOTE 7 - ACCRUED EXPENSES
Accrued expenses consisted of the following at June 30, 1997:
Wages and related union benefits ................... $307,934
Professional fees .................................. 20,000
Accrued insurance expense .......................... 421,885
Accrued interest and penalties ..................... 165,197
$ 915,016
NOTE 8 - INCOME TAXES
The Company has adopted Statement of Financial Accounting
Standards (SFAS) No. 109, "Accounting for Income Taxes".
Income taxes are provided for the tax effects of transactions
reported in the financial statements and consist of taxes
currently due plus deferred taxes related primarily to
differences between the financial and tax basis of assets and
liabilities. The deferred tax assets and liabilities represent
the future tax return consequences of these temporary
differences, which will either be taxable or deductible when
the assets and liabilities are recovered or settled. The
Company's only such significant items relate to its allowance
for doubtful accounts and Section 144 stock issued for
services.
For income tax purposes, the Company reports using a
year end of December 31.
The reconciliation of income tax computed at the federal
statutory tax rate to income tax expense is as follows:
Federal statutory income tax rate 34% Increases (reductions)
resulting from:
State and local income taxes net of federal benefit 13%
Deferred income tax benefit and other miscellaneous
permanent differences (16%)
Effective income tax rate 31%
The tax effects of significant items comprising the Company's
net deferred tax assets as of June 30, 1997 is as follows:
Allowance for doubtful accounts $ 1,073,500
Section 144 restricted stock (114,500)
Less: Valuation allowance (719,250
-------------
Current portion of deferred tax asset $ 239,750
=============
The Company has recorded a deferred tax asset with an
estimated valuation allowance of 75% as of June 30, 1997 based
on the estimated deductibility of the above items in the
future.
F-10
<PAGE>
U.S. BRIDGE OF N.Y., INC.
NOTES TO FINANCIAL STATEMENTS
FOR THE YEARS ENDED JUNE 30, 1997 AND 1996
NOTE 9 - STOCKHOLDERS EQUITY
a) Recapitalization
On April 24, 1994, the Company's parent, Bridge Corp., issued
2,820,000 shares of its own common stock to the previous
stockholders of the Company in exchange for all of the
Company's outstanding shares.
The acquisition of the Company by Bridge Corp, was treated
as a recapitalization for accounting purposes. Accordingly,
after such transaction, the Company was a wholly-owned
subsidiary of Bridge Corp. As discussed in Note 9, the Company
became a majority-owned subsidiary of Bridge Corp as a result
of the Company's initial public offering, the exercise of a
special warrant by Bridge Corp and the exchange of Bridge
Corp, stock for Company stock held by related parties.
b) Initial Public Offering
On August 14, 1995 the Company successfully completed its
public offering. As a result, the Company sold 791,850 shares
which included 91,850 shares in connection with the exercise
of the underwriter's over-allotment options and 494,500
warrants which included 64,500 warrants pursuant to the
underwriter's over-allotment option. The Company yielded a
total net proceeds of $2,077,903 after deducting underwriter
selling expenses and expense allowance, repayment of bridge
loans and promissory notes and related accrued interest to the
bridge lenders and private investors, and the pre-payment of
the first two year's financial consulting agreement with the
underwriter.
Simultaneously with the offering, the Company charged all
deferred offering costs incurred to additional paid-in capital
which totalled $903,820.
Upon the closing of the sale of the Shares and Warrants
offered, the Company sold to the underwriter individually and
not as a representative of the Underwriters, warrants to
purchase 70,000 common shares and 43,000 Warrants exercisable
for a period of four years commencing one year after the IPO
effective date (August 9, 1995) at 120% of the initial
offering price.
c) Special Warrant
On September 9, 1995, the Company's majority stockholder.,
Bridge Corp. purchased at $2.50 per share 5,665 common shares
of the Company by exercising its right pursuant to the terms
of a special warrant issued only to such stockholder in order
to maintain an ownership interest above 50%.
F-11
<PAGE>
U.S. BRIDGE OF N.Y., INC.
NOTES TO FINANCIAL STATEMENTS
FOR THE YEARS ENDED JUNE 30, 1997 AND 1996
NOTE 9 - STOCKHOLDERS EQUITY (Cont'd)
d) Issuance of common stock
i) In December 1994, the board of directors adopted
the 1994 Senior Management Incentive Plan (the "Management
Plan"), which was adopted by shareholder consent. The
Management Plan provided for the issuance of up to 150,000
shares of the Company's Common Stock in connection with
the issuance of stock options and other stock purchase
rights to executive officers and other key employees.
During December 1996, the board of directors authorized an
amendment to the Management Plan to increase the amount of
stock options available to 1,000,000.
ii) In December 1996, the Company granted its
President an option under its Management Plan to purchase
125,000 shares of Common Stock. In February 1997, pursuant
to a Form S-8 Registration Statement filed with the
Securities and Exchange Commission, the Company registered
the sale of the 125,000 shares of Common Stock underlying
the option. The option was exercisable at $1.10 per share
(110% of the bid price on November 27, 1996) and was
exercised March 25, 1997, resulting in the issuance of
125,000 shares of common stock.
iii) During June 1997, pursuant to an agreement with
RSJJ Realty Corp, ("RSJJ"), (a Company wholly-owned by the
Company's President) the Company issued 270,000 shares of
its common stock to RSJJ for settlement of $480,000 of
accrued rent. These shares were then transferred to Bridge
Corp by RSJJ in exchange for shares in Bridge Corp. These
shares have been recorded at the estimated market value at
the date of issuance of $1.75 per share with a 50% haircut
due to the restricted nature of the stock, or $236,750. As
a result, the Company has recorded a gain on the
forgiveness of accounts payable of $243,250.
NOTE 10 - COMMITMENT AND CONTINGENCIES
a) Disclosure of significant estimates - revenue recognition
As outlined in the Summary of Significant Accounting
Policies, the Company's construction revenue is recognized on
the percentage of completion basis. Consequently, construction
revenue and gross margin for each reporting period is
determined on a contract by contract basis by reference to
estimates by the Company's management and engineers of
expected costs to be incurred to complete each project. These
estimates include provisions for known and anticipated cost
overruns, if any exist or are expected to occur. These
estimated may be subject to revision in the normal course of
business.
F-12
<PAGE>
U.S. BRIDGE OF N.Y., INC.
NOTES TO FINANCIAL STATEMENTS
FOR THE YEARS ENDED JUNE 30, 1997 AND 1996
NOTE 10 - COMMITMENT AND CONTINGENCIES (Cont'd)
b) Lease agreement
The Company leases its administrative offices and storage
space pursuant to a signed lease agreement with RSJJ. Such
lease requires monthly payments of $20,000 and expires on
March 31, 1998. Under such lease agreement, the Company is
required to make future minimum lease payments as follows:
Year Ending
June 30,
1998 $ 180,000
===============
Included in general and administrative expenses is rent
expense which amounted to $240,000 for the years ended June
30, 1997 and 1996. In addition, pursuant to an oral agreement
the Company leases a yard for storage material with an
unrelated party which requires monthly payments of
approximately $3,500. Accordingly, total rent expense for the
years ended June 30, 1997 and 1996 amounted to $282,000. As of
June 30, 1997, $66,500 of rent remains unpaid and is included
in accounts payable. During June 1997, the Company issued
270,000 shares of its common stock to settle $480,000 of
accrued rent. (See Note 9(d)(iii) above).
c) Significant customers and vendors
For the years ended June 30, 1997 and 1996, the Company had
three unrelated customers respectively, which accounted for
approximately 86% and 62%, respectively, of total revenues. As
of June 30, 1997 and 1996 approximately 83% and 89% of
contracts and retainage receivables are due from four and
three customers, respectively.
d) Seasonality
The Company operates in an industry which may be seasonal,
generally due to inclement weather occurring during the winter
months. Accordingly, the Company may experience a seasonal
pattern in its operating results with lower revenue in the
third quarter of each fiscal year. Quarterly results may also
be affected by the timing of bid solicitations by governmental
authorities, the stage of completion of major projects and
revenue recognition policies.
e) Bonding requirements
The Company is required to provide bid and/or performance
bonds in connection with governmental construction projects.
To date, the Company has been able to sufficiently obtain
bonding for its private projects. The Company is continuously
pursuing obtaining bonding for its governmental construction
projects. In addition, new or proposed legislation in various
jurisdictions may require the posting of substantial
additional bonds or require other financial assurances for
particular projects.
F-13
<PAGE>
U.S. BRIDGE OF N.Y., INC.
NOTES TO FINANCIAL STATEMENTS
FOR THE YEARS ENDED JUNE 30, 1997 AND 1996
NOTE 10 - COMMITMENT AND CONTINGENCIES (Cont'd)
f) Mechanics liens
As of June 30, 1997, three actions to foreclose upon
mechanics liens filed during the fiscal year were commenced.
Such actions amounted to $3,278,775.
g) Legal Proceedings
i) During January 1997, an action was
commenced by the Ohio Bridge Corporation ("Ohio")
against the Company. Ohio claims that the Company has
infringed its trademark "U.S. Bridge". During August
1997, the Company agreed to effect a name change to "USA
Bridge Construction of NY" before the end of the 1997
calendar year.
ii) The Company is a party to various
claims and legal proceedings incidental to its business.
In management's opinion, the outcome of these claims and
proceedings will not have a material adverse effect on
the financial statements of the Company taken as a
whole.
h) Payroll taxes
As of June 30, 1997, the Company owes approximately
$1,349,225 of payroll taxes and related penalties and
interest. Although as of June 30, 1997, the Company has not
entered into any formal repayment agreements with the
respective tax authorities, it has been making monthly payments based on oral
agreements.
NOTE 11 - RELATED PARTY TRANSACTIONS
a) Purchase of material and labor
For the years ended June 30, 1997 and 1996 the Company
purchased from Waldorf approximately $0 and $180,333,
respectively, of the materials and labor necessary to perform
fabrication services. Effective August 1, 1995 Waldorf ceased
operations. Said vendor is under the common control of the
Company's majority stockholder and President. Lastly, for the
years ended June 30, 1997 and 1996, the Company paid $371,321
and $622,050, respectively, to US Bridge MD for materials and
labor necessary to perform steel erection services. US Bridge
MD is a wholly-owned subsidiary of Bridge Corp. During
September 1996, US Bridge MD ceased operations and the Company
began purchasing material and labor from unrelated third party
steel fabricators. At June 30, 1997 the Company owed US Bridge
MD $62,606, principally for advances in connection with above
services and such amounts are non-interest bearing and due on
demand.
b) Rent expense
Included in general and administrative expenses is rent
expense paid pursuant to a signed lease agreement with a
company wholly-owned by the Company's President. Such rent
amounted to $240,000 for the years ended June 30, 1997 and
1996.
F-14
<PAGE>
U.S. BRIDGE OF N.Y., INC.
NOTES TO FINANCIAL STATEMENTS
FOR THE YEARS ENDED JUNE 30, 1997 AND 1996
NOTE 11 - RELATED PARTY TRANSACTIONS (Cont'd)
c) Employment agreement
On April 4, 1995, the Company entered into an employment
agreement with its President and Director for a term of
approximately three (3) years expiring on June 30, 1998. The
employment agreement provides for an annual salary of $300,000
with a 10% annual escalation. In addition, the President and
Director has been granted options to purchase 25,000 shares of
the Company's common stock, all of which options shall vest
through April 1998. The exercise price of the options shall be
equal to the 110% of the stock price in the initial public
offering. The foregoing options are intended to qualify as
incentive stock options.
d) Due from related parties
During the years ended June 30, 1997 and 1996 the
Company paid certain expenses on behalf of Bridge Corp. These
advances are non-interest bearing and are due on demand. As of
June 30, 1997 such advances to Bridge Corp. amounted to
$18,566 and are included in other current assets.
e) Due to related parties
(i) Since June 1995 the President of
the Company has advanced the Company certain funds. The
advances are non-interest bearing and are due on demand.
At June 30, 1997 amounts due to the President amounted to
$225,368.
(ii) As of June 30, 1997, the Company
owes approximately $96,526 for advances made by
affiliates and related parties on its behalf. Such
advances are non-interest bearing and are due on demand.
F-15
<PAGE>
PROJECT STRUCTURAL & WATER
INTRUSION REPAIRS
AT WILLIAMSBURG HOUSES
GENERAL CONTRACTORS
66464TH STREET
BROOKLYN, NEW YORK 11220
CONTRACT # NY005041
TEL (718) 833-6070, FAX (718) 238-4462
THIS AGREEMENT made as of the 15th day of Feb 1996, between US. BRIDGE OF
NY INC 53-09 97TH PLACE CORONA. NY 11368 (hereinafter "subcontractor") and
TRATAROS CONSTRUCTION, INC. of Brooklyn, NY, the General contractor (11erma:'ter
"contractor") under a prime contract with: Dated: MAY 17. 1994. witnesseth:
1. That Subcontractor agrees, to the complete satisfaction of contractor
and the Owner, to furnish all supervision, labor, materials, equipment,
insurance, small took and incidentals required to timely perform the work set
forth in Rider "C", entitled "Scope of Work', attached hereto and made apart
hereof, all in fill compliance with the contract documents, including addenda
thereto as set forth by the Owner for this project
2. That the Subcontractor has examined the Principal Contract and the
plans, specifications and addenda pertaining thereto. Furthermore, said
Subcontractor is familiar with the nature of the country and the site where said
work is to be done and has entered into this Agreement solely on has own
knowledge and information and on has own estimate of the character and
quantities of material to be used in performing this Agreement The Subcontractor
has not entered into this Agreement on the basis of any representations or
assurances by any employee of CONTRACTOR or of the Owner.
3. That the Principal Contract, so far as it is material hereto, is made a
part of this Agreement and all liabilities incurred and obligations assumed by
CONTRACTOR under said Principal Contract are in turn assumed by the
Subcontractor, so fir as they arise out of or are connected with the work done
or materials furnished under this Agreement The Subcontractor agrees that it
shall be responsible to CONTRACTOR in all respects and to the same extent as
CONTRACTOR is responsible to the Owner under the Principal Contract Wherever
this Agreement is at variance with the Principal Contract or the plans or the
specifications, with reference to the quality, quantity or land of material to
be furnished, the Subcontractor agrees to furnish the greatest quantity and
highest quality of materials specified regardless of whether same be specified
in this Agreement, or in the Principal Contract or in the plans or the
specifications. The Subcontractor shall have no greater rights or remedies
against Contractor by reason of any act or omission of the Owner or its agents
than shall the Contractor itself have against the Owner.
4. No alterations or deviations shall be made in the performance of said
work from that shown on the architect's drawings, except upon the written order
of CONTRACTOR and if said alterations or deviations require the payment of a sum
of money by CONTRACTOR in addition to the sum hereinafter specified, such amount
shall be agreed upon between CONTRACTOR and the Subcontractor and shall be
stated in the order. If such alterations or deviations require a reduction by
the Subcontractor of the amount paid to it, as hereinafter set forth, the amount
of such reduction shall be agreed upon between CONTRACTOR and Subcontractor and
shall be stated in the order.
In the event of a disagreement between CONTRACTOR and the Subcontractor as
to either of the said two amounts last mentioned, the Subcontractor shall
proceed to perform the work pursuant to said order but he may do so Under
Protest and with all rights reserved.
<PAGE>
5. In the event of any additional or extra work or materials not shown on
said drawings or described in said specifications being required or deemed
necessary by CONTRACTOR, CONTRACTOR shall deliver to the Subcontractor a written
order specifying in detail the nature and character of such additional work and
materials and the sum to be paid to the Subcontractor therefore, which sum shall
be agreed upon between CONTRACTOR and the Subcontractor In the event that
CONTRACTOR and the Subcontractor fail to agree upon said amounts, the
Subcontractor shall proceed and perform the extra work and finish such other
materials last mentioned but he may do so Under Protest and with all rights
reserved
When any material is furnished or work is done not shown on the said
drawings or described in said specifications pursuant to the requirements of the
written order of CONTRACTOR as set forth in this paragraph, the furnishings of
said materials and the performance of said work shall be deemed to be done under
and in conformance of the teens of this contract and the provisions of this
Agreement requiring certificates of the architect and/or owner, and final
payment therefore shall apply
6. The Subcontractor shall commence work within 48 hours after notice from
CONTRACTOR and shall from time to time continue therewith as required by CO~CTOW
The work shall be completed in accordance with the project schedule as
established or approved by Owner. Subcontractor agrees that at all times during
the progress of the work to keep sufficient workmen employed on the job and
maintain sufficient materials thereon so that such work may proceed diligently
and without delay Subcontractor further agrees to carry on such work and every
part thereof with due diligence in order to complete and finish the same in a
substantial workmanlike manner and without delay and to so conduct has work that
the progress thereof and the work of the other subcontractors and the completion
of said building shall not be delayed
7. That no part of the work to be performed under this Agreement shall be
sublet, transferred or assigned without the written consent of CONTRACTOR . If
such consent is given, it shall not release the Subcontractor from any
obligation hereunder.
8. That the Subcontractor will observe and conform with all laws,
ordinances and regulations of all Federal, State, City and local authorities
having jurisdiction over the work, and will at its own expense, secure all
permits and approvals necessary for or pertaining to the work to be done under
this Agreement That the Subcontractor guarantees the work to conform to the
rules and regulations of the local building department and all other authorities
having jurisdiction over the work. Where all other conditions precedent to final
payment have been met, the Subcontractor shall not be entitled to such payment
until he has delivered to CONTRACTOR all certificates of approval, bonds,
acceptances, or other certificates or documents required by the Specifications,
by this contract or by the Principal Contract
9. That all materials furnished under this Agreement must be of the best
quality and it is understood that they may be inspected by CONTRACTOR before
and/or after delivery. If rejected by CONTRACTOR they will be held for
disposition at the risk and expense of the Subcontractor and any payment on
account therefore shall be promptly refunded by said Subcontractor In case of
such rejection CONTRACTOR shall have the right to repurchase these materials
elsewhere, and, if the cost of such repurchase should exceed the price set forth
in this Agreement, then the Subcontractor shall be liable to CONTRACTOR for the
fill amount of such excess together with the damages sustained by CONTRACTOR by
reason of the delay
10 Should said work and materials be unsatisfactory to CONTRACTOR or should
the Subcontractor delay or refuse to prosecute the work with reasonable
diligence as required by CONTRACTOR or abandon same or otherwise fail to perform
has or its work, as herein agreed, or fail to comply with any of the agreements
herein on the part of Subcontractor to be performed. or should Subcontractor
become insolvent or file a voluntary petition in bankruptcy, or should an
involuntary petition in bankruptcy be filed against said Subcontractor, or
should any proceeding be filed by or against the Subcontractor under the
Bankruptcy Acts for an Arrangement or any other suitable relief, or should the
Subcontractor make an assignment for the benefit of creditors, or should a
receiver be appointed for the Subcontractor by any court of competent
jurisdiction, then, on giving to the Subcontractor 48 hours written notice of
such default or breach, by certified or registered mail directed to the
Subcontractor at the address hereinbefore set forth, CONTRACTOR may enter upon
the said premises and complete said work itself or by hiring other contractors,
and CONTRACTOR may provide such other material and workmen as may be necessary
to complete such work, or any part thereof, and CONTRACTOR is hereby empowered
to do so as often as it may deem necessary in order to hasten the completion of
this work, without releasing the Subcontractor from liability hereunder.
Thereafter, at CONTRACTOR'S option, it may, upon giving such 48 hours notice,
deem the contract terminated, with the right to CONTRACTOR to complete such work
in the mariner aforesaid In any of such events, all tools, scaffolding,
equipment, and materials on the premises. owned and/or controlled by the
Subcontractor, may be used by CONTRACTOR or its agents to complete said work all
without charge or cost, and
<PAGE>
3 of5 CONTRACTOR shall not be required to transport such tools, scaffolding
or equipment from the premises after such use. .All expenses in connection with
the completion of such work and/or any part thereof, including reasonable
counsel fees, shall be deducted from the amount due or to become due to the
Subcontractor, or, if the sum shall exceed the amount due, the Subcontractor
shall be liable to CONTRACTOR for such difference, and the Subcontractor shall
hold CONTRACTOR harmless from any loss the Contractor may sustain by reason of
the breach by Subcontractor of this Agreement
11. That the consideration fixed herein represents the entire consideration
to be paid by CONTRACTOR~ Any sales tax or other tax imposed by any present or
future law on the labor or materials used by the Subcontractor, or on the
payrolls for such labor, shall be paid by the Subcontractor. The price fixed
herein shall not be increased by reason of any increase in labor or materials
occurring on and after the date hereof for any reason whatsoever, it being
understood that any and all risks of increase in price of labor and materials
have been contemplated by the Subcontractor and have been taken into full
consideration in arriving at the subcontract price set forth herein. It is
further understood that no claim for such increase shall be claimed even though
it may be asserted by the Subcontractor, with or without cause, that the
Subcontractor has been brought into a period of increased labor and materials by
reason of any delays of the Contractor, any of its other subcontractors, the
Owner, or its representative, or other independent contractors employed by it,
or for any other cause whatsoever.*
12. That the Subcontractor agrees to perform all of this work with union
labor of such classifications as to cause no trouble with the unions of the
other trades employed at this job or at the Owner's facility. The Subcontractor
also agrees to coordinate has work with the other trades on the job so as to
avoid disputes and delays in the field
13. That the Subcontractor hereby agrees to and does indemnify CONTRACTOR
and the Owner and hold them harmless from all loss, liability, claims, damages,
suits. actions and proceedings whatsoever (and expenses and counsel fees arising
therefrom) which may be brought on account of injuries or damage to persons or
property or for infringement of patent rights during and because of the
performance of this work except for the sole negligence of CONTRACTOR'S
employees. This indemnification for the benefit of CONTRACTOR and the Owner
shall also be for the benefit of and include any lessor of equipment leased to
CONTRACTOR when such leased equipment is used in connection with the
Subcontractor's performance of this work Said Subcontractor will furnish
CONTRACTOR at once with certificates for Worker's Compensation Insurance, for
commercial general liability insurance, for auto insurance and for property
damage insurance with limits commensurate with the requirements of the prime
contract AU of said insurance shall be written by insurance carrier(s) licensed
by the State of New York (otherwise CONTRACTOR shall have the right to reject
such insurance) and certificates will indicate that Owner and CONTRACTOR are
added insured under the policies.
During the progress of said work, the Subcontractor shall maintain adequate
protection of said work, and shall protect the owners of adjacent property from
injury arising from the carrying out of this contract, and shall make good any
such damage and injury excepting such as may not directly arise out of the
carrying out of this contract
14. That in consideration of the faithful performance by the
Subcontractor of the terms above set forth, CONTRACTOR agrees to pay or cause to
be paid to the Subcontractor, and the Subcontractor agrees to accept from
CONTRACTOR as or for the said Subcontractor's full compensation for all the
materials furnished and all the work done under this Agreement, the total sum of
(See Rider ~'C" Price Schedule ) as follows: During the progress of the work the
Subcontractor will submit payment requisitions to CONTRACTOR not less than one
nor more than two days prior to each date specified in the Principal Contract
for CONTRACTOR to submit requisition for payment to the Owner. If requested by
CONTRACTOR with each payment requisition the Subcontractor shall submit a true
and accurate statement, subscribed and sworn to by the Subcontractor, and in
form and content satisfactory to CONTRACTOR setting forth the number and names
of each and every person who has furnished materials and/or labor for, or who
has sold or rented equipment or supplies to the Subcontractor and which was or
is to be used for or in connection with the work under this contract, and
setting forth also the amount due or to become due to each persons for such
material and/or labor, etc. as of the date of the payment requisition Each of
such statements shall cover the period from commencement of the work hereunder
to the date of the payment requisition. CONTRACTOR hereby expressly reserves the
right to require the Subcontractor to furnish full releases from any and all
persons who have furnished materials and/or labor, etc. for the Subcontractor
applicable to the work under this contract, and for which CONTRACTOR is or may
become liable, and anything herein to the contrary not withstanding. CONTRACTOR
hereby further expressly reserves the right to withhold any amount or amounts
due to become due to the Subcontractor, at or before final payment, until such
release or releases have been furnished Subject
<PAGE>
to the foregoing CONTRACTOR will pay to the Subcontractor upon receipt of
payment from the Owner, a sum equal to ~ percent of the work approved and
accepted by the Owner Receipt of payment by the CONTRACTOR from the Owner for
the Subcontractor's work is a condition precedent to payment by the CONTRACTOR
to the Subcontractor The balance of 5 percent will be paid to the Subcontractor
ninety (90) days after the contract phase work is completed and provided the
work described in thus Subcontract is fully completed and performed in
accordance with the Principal Contract and is satisfactory' to the Owner.
Architect and CON'TRACTOR~ In addition. Subcontractor shall execute and deliver
to CONTRACTOR the usual affidavits and a General Release to CONTRACTOR and to
the Owner in form and content satisfactory to CONTRACTOR No payment or payments
made during the progress of the work shall be construed as an approval or
acceptance of defective work or inferior material
15. In the event that the Owner terminates or cancels the Construction
Contract for any cause whatsoever at any time after the date hereof, this
subcontract shall likewise be deemed cancelled and terminated and, it 15
understood that the Subcontractor shall have no claim of any kind whatsoever
against the CONTRACTOR for breach of the subcontract, for any cause or reason
whatsoever, and that the CONTRACTOR shall be under no liability to the
Subcontractor except that the CONTRACTOR shall be liable to the Subcontractor
only for the difference between the subcontract value of the labor and materials
furnished to the date of said termination or cancellation of the Construction
Contract and the amount therefore paid on account of said subcontract by the
CONTRACTOR to the Subcontractor, provided all materials and labor delivered or
installed comply 'with the contract requirements. In the event the Subcontractor
has materials fabricated for, but not delivered to, the site, the Subcontractor
shall be entitled to payment therefore and shall deliver to the CONTRACTOR a
Bill of Sale for said items. The Subcontractor shall on the CONTRACTOR'S demand
attempt sell said items in open market at prices agreeable to the CONTRACTOR and
if said items are sold, the amount paid by the CONTRACTOR shall be refunded to
the CONTRACTOR If the CONTRACTOR desires delivery of said fabricated materials,
the CONTRACTOR shall have the right to order delivery of said fabricated
materials.
16. CONTRACTOR reserves the right to withhold any moneys payable under this
contract until any and all liens, orders, assignments, or other claims arising
in connection with thus contract, which shall have been filed against the above
premises by the Subcontractor or by any one on account of any claim against or
under said Subcontractor or for the payment of which CONTRACTOR or said premises
shall be liable, shall have been satisfied by said Subcontractor, and, if same
shall not be discharged within ten (10) days after the filing by said
Subcontractor, either by payment or by bonding, CONTRACTOR reserves the right
(but it shall not be obligated so to do) to apply said moneys toward the
satisfaction of any of the foregoing
17 The subcontractor shall be responsible for the clean up of any rubbish,
crates, etc., accumulated in the performance of his work. If same is not done to
the satisfaction of the CONTRACTOR, Subcontractor shall be advised in writing
and if not satisfactorily performed within three (3) days. CONTRACTOR may remove
the rubbish and back charge the Subcontractor for all costs in connection
therewith.
18. In the prosecution of said work, the foreman shall represent the
Subcontractor, and in the absence of the latter all instructions and
notifications given to the foreman shall be binding as if given to the said
Subcontractor. Upon the request, however, of said foreman or of said
Subcontractor, said instructions or notifications shall be reduced to writing
19 In the event that Subcontractor suffers or claims any additional cost,
expense or damage in connection with or arising out of this contract or its
performance or breach, the cause of which in whole or in part is due, directly
or indirectly, to any acts or omissions of the Owner or for which the Owner is
responsible, the parties agree to enter into an agreement to liquidate such
claims upon the terms and conditions set forth in CONTRACTOR'S standard
Liquidating Agreement current as of the date of execution of this subcontract
and which is hereby incorporated herein by reference, or in the form of
Liquidating Agreement attached hereto; such claims shall be identified and set
forth in "Schedule A" to such Liquidating Agreement Except as may be expressly
otherwise provided in such Liquidating Agreement, CONTRACTOR shall have no
liability or responsibility to Subcontractor for any such additional costs,
expense or damage.
20. This Agreement shall be construed in accordance with the laws of the
State of New York as if thus Agreement were executed in the State of New York
and the parties agree to recognize that any suit which can be maintained
pursuant to thus Agreement must be instituted in a court of record within the
State of New York.
21 CONTRACTOR will not, under any circumstances be answerable or
accountable for any fire or theft loss suffered by the Subcontractor. No
materials delivered on the premises to form part of the work shall be removed
therefrom without the consent of CONTRACTOR excepting only such surplus material
as may remain after completion of the work.
22. In the event that the Subcontractor. its agents, servants or employees,
during the course of the job, shall
<PAGE>
use any materials, facilities, places of work or property of CONTRACTOR or
any other subcontractor (including but not limited to scaffolding, tools,
equipment, etc.) the Subcontractor hereby agrees to save and hold CONTRACTOR
harmless from, and to indemnify CONTRACTOR from any claims, demands, damages,
causes of action, decrees and judgments by reason of any injury or loss of life
to persons or damages to property arising out of such use.
23. CONTRACTOR may at any time prior to Or during the progress of the work
demand that within ten days of such demand the Subcontractor deliver to
CONTRACTOR a duly executed surety company performance and payment bond by a
company and agent satisfactory to CONTRACTOR in the amount of this contract and
in a form satisfactory to CONTRACTOR Costs for such bond will be divided as
follows: 2/3 by Tartars and 113 by U.S. Bridge of NY.
24. Subcontractor shall work overtime, Saturdays at the direction of
CONTRACTOR without additional cost to CONTRACTOR if in the judgment of
CONTRACTOR such overtime and Saturday work is necessary due to delays of
Subcontractor.
25. This Agreement embraces the entire understanding and agreement between
the parties and it is hereby agreed that this Agreement supersedes any proposals
heretofore submitted by the Subcontractor. Any oral additions, omissions,
modifications or waivers, are expressly renounced and excluded.
26. This Agreement consists of 5 pages of Terms and Conditions, Rider "A"
three pages, Rider "B" one page and Rider "C" ~ pages and Rider '~" one page.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE HEREUNTO SET THEIR HANDS ON THE
DATE WRITTEN BELOW:
U.S. BRIDGE OF NY INC.
TRATAROS CONSTRUCTION, INC.
<PAGE>
RIDER "A' TO SUBCONTRACT
LIOUIDATING AGREEMENT
AGREEMENT made as of the 15th day of Feb 1996 by and between
TRATAROS Construction, INC., A New York Corporation with offices at 664 64th
Street, Brooklyn, New York 11220 ("TRATAROS") and U.S. BRIDGE INC. ,with
offices at 53-09 97TH PLACE, CORONA, NY 11365
WITNES SETH.
WHERE~, TRATAROS entered into a contract for public improvement with NEW
YORK CITY HOUSING AUTHORITY ("the OWNER"), known as Project No. NY005041
STRUCTURAL AND WATER INTRUSION REPAI~ AT WILLIAMSBURG HOUSES, ('THE Principal
Contract"); and
~ERAAS, TRATAROS has entered into a written agreement with SUBCONTRACTOR
covering work at the Project pursuant to the Principal Contract ("the
Subcontract"); and
WHEREAS, TRATAROS AND SUBCONTRACTOR have performed work for and at the
Project; and
WHEREAS, SUBCONTRACTOR bas asserted certain claims against TRATAROS in
connection with or arising out of the Subcontract or its performance or breach,
tile cause of which is whole or in part is due, directly or indirectly, to acts
or omissions of the OWNER or for which the OWNER is responsible In, which claims
are identified and set forth in Schedule A annexed hereto ('the SUBCONTRACTOR'S
CLAIMS");
WHEREAS, SUBCONTRACTOR has agreed and hereby reconfirms its agreement to
liquidate the SUBCONTRACTOR'S CLAIMS and any liability therefore on the part of
TRATAROS, provided TRATAROS asserts the SUBCONTRACTOR'S CLAIMS against the OWNER
on behalf of SUBCONTRACTOR in the manner hereinafter provided, and
WHEREAS, TRATAROS and SUB CONTRACTOR desire to enter into this Agreement
setting forth all of their rights and obligations as to each oilier in
connection with the SUBCONTRACTOR'S CLALMS.
NOW, THEREFORE, in consideration of the above premises and the
covenants and agreements hereinafter provided, the parties agree as
follows:
1. All of the foregoing recitals are true and complete and are incorporated
herein by this reference thereto.
2. SUBCONTRACTOR agrees to accept in full satisfaction and discharge of the
SUBCONTRACTOR'S CLAIMS or any subsequent revision(s) and or addition(s) thereto,
the amount, collected or recovered, for the SUBCONTRACTOR9S CLAIMS to be paid to
it in liquidation thereof as hereinafter provided. TRATAROS acknowledges its
liability to SUBCONTRACTOR with respect to the SUBCONTRACTOR'S CLAIMS.
3. SUBCONTRACTOR hereby appoints TRATAROS its attorney-in-fact for the
proposes of presenting the SUBCONTRACTORS CL~VIMS to file OWNER; SUBCONTRACTOR
authorizes such claim to be presented either. the name of TRATAROS or
SUBCONTRACTOR, or both. TRATAROS shall present the SUB CONTRACTO. CLAIMS to the
OWNER in the form and manner required by the Principal Contract and the
specifications.
4. TRATAROS agrees to present the SUBCONTRACTOR'S CLAIM to the OWNER and,
at TRATAROS'S sole, arbitrary and unreasonable option, to prosecute same in an
action against the OWNER together with such other claims as TRATAROS may have
arising out of the Project ("TRATAROS'S CLAIMS"); provided, however, that if
TRATAROS 1)prosecutes any such other claims, it shall also prosecute the
SUBCONTRACTOWS CLAIMS.
5. SUBCONTR.\CTOR agrees that the liability of TRATAROS to it fur the
SUBCONTRACTOR'S CLAIMS is limited to whatever recovery TRATAROS is able to
secure from the OWNER either as a result of a negotiated settlement or as are
result of suit initiated in the Supreme Court of the State of New York, iii the
appropriate county or any other court of competent jurisdiction. Upon receipt of
funds, whether the same be the result of a negotiated settlement, arbitration
award or judgement issued by the Court, the amount applicable to the
SUBCONTRACTOR'S CLAIMS LESS TRATAROS'S Contract markup and applicable fees and
disbursements shall be first applied to pay TRATAROS'S expenses (including but
not limited to legal fees and bond premiums) incurred in connection with (a)
mechanic's liens and claims, if any, made against TRATAROS or its payment bond
surety by subcontractors and supplier. of SUBCONTRACTOR and (b) the preparation
negotiation and prosecution of the SUBCONTRACTOR'S CLAIMS, and the balance
remaining shall be made available to SUBCONTRACTOR after payment of any
backcharges or loans and advances from TRATAROS to SUBCONTRACTOR~ It is
understood and agreed that such payment(s) shall constitute full payment,
settlement and discharge of the SUBCONTRACTOR'S CLAIMS, and TRATAROS will be
fully discharged of any and all liability to SUBCONTRACTOR arising out of the
SUBCONTRACTOR'S CLAIMS. Iii the event there is
<PAGE>
no collection or recovery by TRATAROS from the OWNER with respect to the
SUBCONTRACTOR'S CLAIMS or any subsequent revision(s) thereof either by way of
settlement or suit, TRATAROS'S efforts to collect and recover said claims from
the OWNER shall constitute payment, settlement all discharge of the
SUBCONTRACTOR'S CLAIMS, and TRATAROS shall thereby be fully discharged of any
and all such liability to SUBCONTRACTOR.
6. The presentation and prosecution of the SUBCONTRACTOR'S CLAIMS shall in
all respects be subject to the handling, control and discretion of TRATAROS,
including but not limited to the manner and format of such presentation and
prosecution and the decision whether or not to accept any amounts awarded or
offered in settlement of the claims, or to continue with the prosecution thereof
If an award or decision L$ made by a court or jury or by the OWNER or ally
representative or employees of the OWNER in a proceeding which is legally
binding on TRATAROS, SUBCONTRACTOR agrees to be bound by said award or decision.
7.if a settlement or award is made with respect to all the claims presented
and prosecuted by TRATAROS against the OWNER that TRATAROS agrees to accept,
which is in the form of a lump sum amount or in such oilier form that it is
uncertain to TRATAROS what amount, if any, has been allowed for the
SUBCONTRACTOR'S CLAIMS, or if an award providing a specific amount on account of
the SUBCONTRACTOR'S CLAIMS is nude in a proceeding as to which it is uncertain
to 'FRATAROS whether the a1locati~ of such amount is legally binding on
TRATAROS, then TRATAROS shall. in its sole discretion, determine what amount, if
any was or should have been allowed in such settlement or award for the
SUBCONTRACTOR'S CLAIMS. If SUBCONTRACTOR shall be dissatisfied with the amount
so determined by TRATAROS, SUBCONTRACTOR shall have the right to demand
arbitration of the question of what amount, if any, was allowed for the
SUBCONTRACTOR'S CLAIMS in such settlement or award; provided, however, that
demand for such arbitration shall be served upon TRATAROS will 30 days after
SUBCONTRACTOR'S receipt of notice in writing from TRATAROS of its determination
of the amount so payable. Failing such demand for arbitration, SUBCONTRACTC
shall be bound by the determination made by TRATAROS. if SUBCONTRACTOR shall
make a timely demand for arbitration, such arbitration shall be conducted in
accordance with the Construction Industry Arbitration Rules of the American
Arbitration Association in New York, New York, and the costs and expenses of
such arbitration shall be borne equally by the parties hereto The arbitrators
shall have 110 power to decide the underlying merits of the SUBCONTRACTOR'S
CLAIMS or TRATAROS'S CLAIMS, or other matters, but shall be limited as a matter
of their jurisdiction, solely to determining, on the basis of substantial
evidence, the amount, if any, which was allowed for the SUBCONTRACTOR'S CLAIMS
in the settlement or award previously rendered.
8.SUBCONTRACTOR agrees to reimburse TRATAROS ill the proportion that the
SUBCONTRACTOWS CLAIMS as set forth on Schedule A or otherwise submitted to
TRATAROS bear to tile total claims submitted by TRATAROS to the OWNER (as same
may be amended), for legal fees (contingent or otherwise) and disbursements
reasonable and actually expended in the preparation and presentation or
prosecution ("the Prosecution") of the claims against the OWNER and the defense
of any counterclaims brought by the OWNER Such disbursement shall apply to all
services rendered and disbursements incurred by TRATAROS and its counsel in
connection with the prosecution and defense of said claims or counterclaims
against or by the OWNER in connection with the project;
9. Should setoffs or liquidated or other damages be hereafter assessed or
claimed, against TRATAROS by the OWNER or anyone else due to acts or omissions
of SUB CONTRACTOR under or in connection with the Subcontract, SUBCONTRACTOR
shall be liable to TRATAROS for the amount of any such setoffs or damages
awarded against'. TRATAROS which a court, jury or oilier legally binding
determination may find were due to the acts or omissions c SUBCONTRACTOR If a
lump-slim or overall amount of setoffs or liquidated or other damages is awarded
to the OWNER or another against TRATAROS, or if such setoffs or damages are
settled, and it is not possible to allocate such award or settlement as between
TRATAROS and SUBCONTRACTOR, then TRATAROS shall, in its sole discretion
determine the allocation of SUBCONTRACTOR'S liability to TRATAROS. If
SUBCONTRACTOR shall be dissatisille' with such allocation, SUBCONTRACTOR shall
have the right to demand arbitration of die question of what amount, ally, of
such award or settlement is properly allocable to SUBCONTRACTOR; provided,
however, that such arbitration.' shall be demanded within 30 days after receipt
by SUBCONTRACTOR of notice of such allocation from TRATAROS Failing such demand
for arbitration, SUBCONTRACTOR shall be bound by the determination made by
TRATAROS. " SUBCONTRACTOR shall make a timely demand for arbitration, such
arbitration shall be conducted in accordance with the Construction Industry
Arbitration Rules of die American Arbitration Association iii New York, New
York, and the cost and expense's of such arbitration shall be borne equally by
the parties. the arbitrators shall have 110 power to decide di ouderlying merits
of the SUBCONTRACTOR'S CLAIMS, or other matters, but shall be limited as a
matter of tile' jurisdiction, solely to determining, on the basis of substantial
evidence, the amount, if any, which was or should have bee allocated to the SUB
CONTRACTOR by TRATAROS.
<PAGE>
10 In the event that ally clause or item of damage included in the
SUB Contractor's CLAIMS is or is claimed to be the property of any subcontractor
or supplier of SUBCONTRACTOR, then, to the fullest extent provided by law,
SUBCONTRACTOR shall indemnify and hold harmless TRATAROS from and against all
claims, actions, damages. losses, liabilities, costs and expenses, including but
not limited to court costs, litigation expense and attorney's fees (whether or
not litigation is commenced) of whatever nature or type arising out of or
resulting from any such claim or item of damage by any subcontractor or supplier
of SUBCONTRACTOR.
11. The presentation and prosecution of all claims shall be performed by
TRATARO S'S attorney, provided, however, that SUBCONTRACTOR may employ attorneys
of its own choosing at its sole cost and expense to aid, assist or monitor (but
not interfere with) any such presentation or prosecution. SUBCONTRACTOR shall
give its full cooperation and assistance to TRATAROS in the presentation and
prosecution of the SUBCONTRACTOR'S CLAIMS and TRATAROS'S CLA[MS, and produce and
make available to TRATAROS any books, records, documents, information or other
evidence, witnesses, including expert witnesses, and consultants as may be
required or reasonably desired by TRATAROS in connection therewith. Such
evidence, witnesses, including expert witnesses, and consultants as may be
required or reasonably desired to substantiate the SUBCONTRACTOR'S CLAIMS shall
be furnished and provided at the sole expense of SUBCONTRACTOR, such evidence,
witnesses, including expert witnesses, and consultants as may be required or
reasonably desired to substantiate TRATAROS'S CLAIMS shall be provided at the
sole expense of TRATAROS. Any expert witnesses or consultants retained by
TRATAROS'S counsel as may be required or reasonably desired to substantiate
matters common to all claims shall be provided at the joint expense of TRATAROS
and SUBCONTRACTOR, such expense to be equitably allocated between their by
counsel Oil tile basis of the time spent by such expert witness or consult on
each claim, or, in counsel's sole discretion, oil any other equitable basis, and
SUBCONTRACTOR shall pay TRATAROS its share of these costs as so determined.
12 Except as herein specifically provided, it is understood that tile
Subcontract remains in full force and effect in all respects binding upon
parties, and nothing herein shall release SUBCONTRACTOR from claims or liability
for personal injury or property damage, nor from claims grounded in negligence
or products liability, or from remaining obligations imposed upon it by the
Subcontract including but not limited to obligations in connection with
guarantees, warranties, defective work or materials and testing requirements.
13. This Agreement supersedes and merges all prior understandings,
negotiations, representations and agreements, whether written or oral, with
respect to the subject matter of this Agreement, and shall inure to the benefit
of and be binding upon the respective heirs, assignees, representatives and
successors of die parties hereto.
14. Other than as expressly set forth in paragraph "13", above, nothing in
this Agreement is intended to create or enhance any rights in any person not a
party hereto.
IN ~VITNESS HEREOF, the parties have caused this Agreement to be signed by
their duly authorized officers as of the day and year first above written.
TRATAROS CONSTRUCTION CORP.
U.S. BRIDGE OF NY, INC.
<PAGE>
In accordance with terms of the contract, you are required to provide the
following information within five (5) working days:
A) Name and Address of Material Vendor/Supplier:
B) Name of Material Fabricator:
C) Name of Equipment Rental Distributor:
<PAGE>
D) Certified Payroll Report;
E) Certificate of Insurance;
F) Proposed Delivery Schedule;
G) Proposed Itemized Contract Cost Breakdown, including Labor, Materials,
Equipment;
H)Certified Statement Confirming Labor Benefits Contributions have been
satisfied
Be advised that progress payments and/or final payment, payment of retainage,
shall be subject to receipt, acceptance and verification of Item "A'9 through
"H" mentioned above.
SUB CONTRACTOR
U S. BRIDGE, INC.
<PAGE>
RIDER "C" Continued
Structural and Water Intrusion Repairs at Williamsburg Houses Contract
#NY005041; Lead and Asbestos Abatement
U.S. Bridge
33-09 97th Place
Corona, NY 11368
1. SCOPE OF WORK
A. The subcontractor shall furnish all submittals, materials, labor and
equipment for the performance of the Lead & asbestos abatement work at the
Williamsburg Houses project, in strict conformance with the contract documents
and all regulatory requirements.
B. The lead and asbestos abatement work includes but is not limited to the
following.
1. Removal of all roof flashing materials which contain asbestos down to
existing roof deck or substrate and chimney asbestos abatement as shown on
drawings.
2. Removal of asbestos tile in kitchen and broom closets.
3. Lead abatement of bathroom ceilings and walls.
4. Lead abatement of kitchen ceilings and walls.
5. Lead abatement of kitchen walls for column repairs.
6. Lead abatement of window headers and cladding of same.
7. Removal and disposal of fourth floor bathroom doors.
8. Removal and disposal of wood baseboards.
9. Critical barriers and security barriers as required to complete the
above work.
10. Temporary roof protection after asbestos removal. Per spec. Sect.
07220.1.03.B.6.
11. Hoisting of materials and equipment as required.
12. Disposal of all hazardous asbestos and lead waste, not limited to:
a. HEP~ vacuum contents.
b. Paint chips and spot abrasive.
c. Woodwork, metal window liners, and other components removal from the
building.
d. Filtered waste water used during caustic paint removal process.
e. any other items contaminated with lead-based paint or items produce as a
result of lead based paint activity.
<PAGE>
C. applicable Specifications Sections are as follows:
1. 01040 Project Coordination
2. 02080 Removal and Disposal of asbestos Materials
3. 02090 Lead Based Paint abatement
It is understood that the words "contractor" and "general contractor'8 used
in the specifications sections listed above, are referring to U.S. Bridge of NY.
D. Exclusions to the subcontract:
1. Power and electrical hook-ups and disconnects less than lOamps.
2. Hot and cold water supply and drainage
3. Replacement Doors, Hardware (except where damaged by subcontractor) and
baseboards.
<PAGE>
RIDER "C" Continued
2. PRICE SCHEDULE
The unit prices applicable to the abatement work are as follows:
<TABLE>
<CAPTION>
BID DESCRIPTION UNIT ESTIMATED UNIT EXTENSION
ITEM QUANTITY PRICE
<S> <C> <C> <C> <C>
3. Lump sum price per
building for all
asbestos abatement
work on roofs
including disposal. Bldg. 15 18,000 270,000
4. Lump sum price per
apartment (4th
floor Apts) for
all asbestos
abatement in
kitchen floors
and broom closets,
including disposal. Apt. 318 135.00 42,930
5. Lump sum price per
Chimney for all
asbestos abatement
work on chimneys to
be removed including
disposal. Each 4 4,499 17,996
6. Lead-Based Paint
abatement of all
baseboards (removal of
baseboards and trim). L. F. 47,500 2.35 111,625
7. Lead-Based Paint Abatement of
kitchen and bathrooms
ceilings, including decontamination,
set up and clean up.
(4th. floor apts.). Sq.Ft. 45,000 2.50 112,500
8. Lead-Based Paint abatement
of kitchen ceilings, (up to 40 Sq. Ft.)
including decontamination, set
up and clean up.
(Occupied apts). Each 400 224 89,600
</TABLE>
<PAGE>
RIDER "C'1 Continued
<TABLE>
<CAPTION>
BID DESCRIPTION UNIT ESTIMATED UNIT EXTENSION
ITEM QUANTITY PRICE
9. Lead-Based paint -abatement of kitchen columns in occupied apartments
disposal of hazardous waste, set-up decontamination,
and clean up.
<S> <C> <C> <C> <C>
Each 16 380 6,080
10. Lead-Based paint
abatement of
kitchen columns in
(4th. floor apts).
including disposal
of hazardous
waste, set-up,
decontamination,
and clean up. Each 45 380 17,100
11. Lead-Based paint abatement
of door frames including, set-up,
decontamination and clean up. (4th floor
apts). L. F. 40,000 2.75 110,000
12. Lead-Based paint abatement
(encapsulate kitchen and bathroom walls)
in all 4th
floor apts. S.F. 130,000 .90 117,000
13. Lead-Base paint abatement of window
headers (aluminum enclosures).
4th. floor apts). L. F. 10,200 3.50 35,700
14. Lead-Based paint abatement (removal)
of bathroom doors including
hardware.
(4th. floor apts). Each 320 135 43,200
</TABLE>
<PAGE>
RIDER "C" Continued
<TABLE>
<CAPTION>
BID DESCRIPTION UNIT ESTIMATED UNIT EXTENSION
ITEM QUANTITY PRICE
<S> <C> <C> <C> <C>
15. Lead-Based paint
abatement of window
header s/al urn mum
enclosures for
structural shoring
purposes. Include
install at ion/removal
and disposal of
security part it ions.
(Unoccupied apts). Each 76 920 69,920
16. Lead-Based paint
abatement of window
headers/aluminum
enclosures for
structural shoring
purposes. Include
installation/removal
and disposal of
security partitions
with ~.C. modifications.
(Occupied acts). Each 420 1,100 462,000
17. Hazardous lead waste
disposal for items
6, 7, 8, 11, 12, 13,
14, 16 pt. 250 208 52,000
</TABLE>
The total cost of the abatement work is estimated to be $1,557,631.00. The
final cost may be affected by quantities of work performed.
<PAGE>
Subcontractor's attention is specifically directed to the following contract
specification sections which are incorporated herein:
A. Special Notice to Contractors
Par. 1. Liquidated Damages.
Par. 3. Incorporation of Contract Documents
Par. 7. Commencement of Physical Work.
B. Instructions to Bidders
Par. 4. Incorporation of Contract Documents
Par. 12. A thru F Equal Opportunity..
Par. 13. For Fed. Funded contracts.
C. Form of Proposal.
D. General Conditions.
E. Amendments to General Conditions
Par. 13. Time of Completion
Par. 46. Hours of Work.
F. Supplementary General Conditions.
G. Special Conditions.
Par. 1. LPC Approval
Par. 5. Resident Employment and Business Opportunity; Section 3 which read
as follows: The Contract Work to be performed pursuant to this contract with the
Authority is assisted under the Comprehensive Grant Program which provides
direct federal Financial Assistance from HUD and is subject to the requirements
of Section 3 of the Housing and urban developments Act of 1968, as amended, 12
U.S.C. 1701u ("Section 3"), as amended by the Housing and Community developments
Act of 1992. Section 3 requires that to the greatest extent feasible,
opportunities for job training and employment be given to lower income residents
of the areas of the Section 3 Covered Project, and contracts for work in
connection with the contract work shall be awarded to business concerns which
are located in or owned in substantial part by persons residing in, the area of
the Section 3 Covered Project.
H. General Requirements - Division 1
Section 01340 - Submittals and Substitutions
Section 01500 - Temporary Facilities
Section 01600 - Materials & Equipment
New York City Housing Authority
SUBCONTRACT ~51O1O-OO1
THIS AGREEMENT made this 30thday of October 1996
BETWEEN CONTRACTOR: HANNIBAL C0NSTRUCTION CO., INC.
------- ----------- -------- ------------ ---- ----
159 West 127th Street
--- ---- ----- ------
New York, NY 1O~27
--- ----- -- -----
212-6632000
-----------
Fax 212-666-1679
--- ------------
ATT:,Bi1l King
--------- ---
and CONTRACTOR: U.S. BRIDGE OF NY, INC.
53-09 97th Place
Corona, NY 11368
(718) 699-0100
Fax (718) 760-5696
Attn: Joseph Polito
NOTICE: THIS AGREEMENT MAY REQUIRE ARBITRATION OF DISPUTES. See Article 32.
WHEREAS,, Contractor has made a contract for construction dated 199 with
CUSTOMER: National Railroad Passenger Corporation (AMTRAK)
30th & Market Streets
Philadelphia, Pennsylvania 19104
For the following Project: Contract DP 5277-0001 with
Modification 001 and 002 Bearing Rehabilitation
Hell gate Viaduct Structures
(hereinafter referred to as the "Prime Contract") which provides for the
furnishing of labor, materials, equipment and services in connection with the
construction of the Project
Project Owner
(if different from Customer)
Architect or Engineer
(if different from Customer)
(In the event Contractor's Prime Contract is with Owner of the Project,
references to "Customer" shall also mean "Owner" and references to "Owner" shall
also mean "Customer. All references herein to "Customer" and/or "Owner-" in the
context of review, approval, inspection or contract administration shall include
"Architect" or "Engineer" acting within the scope of authority delegated to such
party by Owner); and
WHEREAS, Subcontractor has agreed. for and In the stead of Contractor, to
fulfill and perform the part of the Prime Contract that is hereinafter
described;
<PAGE>
NOW, THEREFORE, the parties hereto, intending to be legally bound, do
hereby agree as follows:
SCOPE OF WORK:
1. Subcontractor shall furnish all supervision. labor, materials, supplies,
services. tools, equipment and facilities and do and perform all things
necessary for the construction and completion of the Work as set forth on
"SCHEDULE A - SCOPE OF WORK." attached hereto, in strict accordance with the
terms of this Agreement and the Contract Documents and all things indicated
therein or reasonably implied or inferable therefrom.
CONTRACT DOCUMENTS:
2. The Contract Documents for this Agreement consist of the Prime Contract;
the Conditions of the Prime Contract (General, Supplementary, Special and other
conditions); Drawings, Specifications and Addenda included in the Prime
Contract; all other documents contained or referenced in the Prime Contract; and
all 'Modifications or Change Orders issued subsequent thereto (see attached
"SCHEDULE C CONTRACT DOCUMENTS"). All of the above Contract Documents are fully
incorporated herein, and Subcontractor acknowledges that it has read and is
familiar with all of the terms and conditions therein and with the respective
rights, obligations and liabilities of Contractor and Customer thereunder.
In the performance of this Agreement, Subcontractor agrees to be bound to
Contractor by the terms of the Contract Documents and shall assume toward
Contractor all the obligations and responsibilities which Contractor, under the
Contract Documents, assumes toward the Customer. Subcontractor shall have the
benefit of all rights, remedies and redress against Contractor which Contractor,
by the Contract Documents, has against the Customer. It is understood that in
the event of conflict or inconsistencies between the provisions of this
Agreement and the Contract Documents, this Agreement shall govern. The foregoing
notwithstanding, any claims of Subcontractor, whether for extension of time,
changes in the Work, adjustment, damages or otherwise, must be submitted in
accordance with the procedures set forth in the Contract Documents, and
Subcontractor's remedy and recovery shall be limited to adjustments authorized
and approved by Customer.
SHOP DRAWINGS:
3. Subcontractor shall prepare such drawings as are necessary to completely
show the details of its Work and shall secure approval thereof by Contractor and
by such other parties as may be required by the Contract Documents in writing
before proceeding with the Work to which such drawings shall relate. Approval of
such drawings by Contractor or others shall not relieve Subcontractor of its
obligation to conform its Work properly with work of other contractors and to
perform fully the terms and conditions hereof and of the Contract Documents.
TIME OF COMPLETION:
4. Subcontractor shall complete all Work hereunder according to the
following schedule:
Pursuant to schedule submitted by Subcontractor within ten (10) days after
receipt of this Agreement, subject to Contractor's approval. Otherwise. Work
shall be performed according to the schedule prepared by Contractor.
Subcontractor's schedule shall be consistent with the requirements of any
outline schedule furnished by Contractor and Contractor's obligations under the
Contract Documents (see attached "SCHEDULE B - PROJECT SCHEDULE").
Time is of the essence in the performance of Subcontractor's obligations
hereunder. Contractor may, from time to time, make revisions in the schedule,
subject to Subcontractor's consent, provided however, Subcontractor hereby
consents to such reasonable revisions as necessary to maintain Subcontractor's
schedule approved by Contractor and
<PAGE>
Contractor's obligations under the Contract Documents. In the event of
Subcontractor's failure to adhere to the agreed schedule, as modified by
authorized rime extensions and/or revisions, Subcontractor shall be liable to
Contractor for alt delay damages, liquidated or otherwise, payable by Contractor
to Customer as the result of Subcontractor's delay, in addition to such actual
delay damages and/or acceleration costs suffered by Contractor and its
subcontractors as a consequence thereof, and such sums may be deducted from
Subcontractor's applications or payment hereunder. Subcontractor may be required
to accelerate its Work to maintain the agreed schedule at no expense to
Contractor.
EXTENSION OF TIME:
5. Should Subcontractor be delayed in the performance or completion of the
Work hereunder by Contractor or Contractor's other subcontractors or by any acts
or causes beyond the control of Subcontractor which are excused under the
Contract Documents, Contractor will extend the foregoing work schedule for a
period of time equivalent to any such delay. This time extension shall be the
sole remedy for such delays unless caused solely by Contractor or Contractor's
other subcontractors or unless and to the extent delay costs are reimbursed by
Customer, Owner or other responsible party. Failure of Subcontractor to give
written notice of claim to Contractor for time extensions and delay costs at
least five (5) business days before the time specified in the Contract Documents
shall bind Subcontractor to the same consequences as Contractor is bound.
Failure of Subcontractor to give Contractor written notice of delay and claim
for time extensions arid potential delay damages within five (5) business days
after the onset of delays or interference caused by Contractor shall constitute
a waiver by Subcontractor of all rights to time extensions and for compensation
for delays to the extent otherwise recoverable as set forth above. In no event
shall the extension of time afforded Subcontractor hereunder exceed that granted
by Customer under the Contract Documents with respect to such claim, unless
Contractor or Contractor's other subcontractors are the sole cause of
Subcontractor's delay.
CONDITIONS UNDER WHICH CONTRACTOR MAY CO~L(pound)TE THE WORK:
6. If Subcontractor, at any time in the judgment of Contractor, shall fail
to supply a sufficiency of properly skilled workmen or of materials, tools,
equipment, facilities or supplies of the proper quality, or fail in any respect
to prosecute the Work with promptness arid diligence, or fail in the performance
of any of its obligations hereunder. and shall, within three (3) days after
receipt of written notice from Contractor fail to remedy such default; or if
Subcontractor shall interfere with or disrupt, or threaten to interrupt with or
disrupt. the operations of Customer, Owner or Contractor n any manner, whether
by reason of labor dispute or otherwise; or if the presence of the Subcontractor
or his agents or employees upon the Owner's premises or the fact that this
Agreement has been made results in acts by third parties which interfere with or
disrupt the operations of Customer, Owner or Contractor in any manner, whether
by reason of a labor dispute, picketing, boycotting or otherwise; or if a
petition in bankruptcy shall be filed by or against Subcontractor or if
Subcontractor shall become insolvent and fails to furnish adequate assurances of
future performance within seven (7) days or otherwise is unable to continue the
Work, Contractor may, in any such event, either terminate this Agreement or
exclude Subcontractor and its employees and agents from the Work or any
designated portion thereof without terminating this Agreement. Contractor,
having exercised either of the above elections, may enter upon the premises and
take possession of all materials, tools, equipment, facilities and supplies
thereon, and may finish said Work or portion thereof either by providing the
necessary labor and additional materials, tools, equipment, facilities and
supplies for finishing said Work or portion thereof or by contracting with other
parties Subcontractor shall not be entitled, in any event, to receive any
further payment under this Agreement or otherwise in connection with the Work
after such notice is sent or given until said Work shall be wholly finished, at
which time if the unpaid balance of the amount to be paid Subcontractor under
this Agreement shall exceed the cost and expense of finishing the Work, such
excess shall be paid by Contractor to Subcontractor: but, if such cost and
expense including damages incurred through Subcontractor's default shall exceed
such unpaid balance, Subcontractor shall be liable for and shall pay such
difference to Contractor. The cost and expense of completing the Work as herein
provided and damages incurred through Subcontractor's default shall be audited
and certified by Contractor If Contractor wrongfully terminates Subcontractor,
the Subcontractor shall be entitled to recover only Subcontract ~45IO1O-OOI
Contractor Initial Page 3 of 17 Subcontractor Initial
<PAGE>
the pro rata Subcontract Price for Work performed. but not paid for, prior
to the termination and incidental damages directly resulting from the
termination, in no event shall the Subcontractor be entitled to recover
anticipated profit upon unperformed Work or any other damages incurred or
alleged to be incurred in connection with such termination
SUBCONTRACT PRICE AND PAYMENT:
Contractor agrees to pay Subcontractor for satisfactory performance of
Subcontractor's Work the sum of ONE HUNDRED SEVENTY NINE THOUSAND AND
OO/100($179,000.00 subject to additions and deductions as herein provided, in
full and complete compensation for all work performed and furnished hereunder
Progress payments, less retainage of five percent (5%), shall be made to
Subcontractor for Work satisfactorily performed no later than ten (10) days
after receipt by Contractor of payment from Owner for Subcontractors Work.
subject to the express condition precedent that Contractor shall have received
payment therefor unless payment withheld due to causes within the sole control
of Contractor for which Subcontractor is not responsible Subcontractor shall
make applications for payment in the manner prescribed n the Contract Documents
and in time for the Contractor to submit per the Contract Documents. If
retainage is reduced by Customer and paid to Contractor for Subcontractor's
Work, or no longer withheld by Customer for Subcontractor's Work, corresponding
subcontract retainage will be reduced or no longer withheld accordingly,
provided that Subcontractor is performing its Work in time and in conformance
with this Agreement.
When required by Contractor or Customer, and as a prerequisite for payment,
Subcontractor Shall provide affidavits partial lien waivers and releases for
itself and from each of its subcontractors and material suppliers evidencing
receipt of progress payments. All payments made by Contractor to Subcontractor
are made to, and accepted by, Subcontractor as trustee for the benefit of
Subcontractor's employees, material suppliers and lower tier subcontractors, and
Subcontractor shall so apply the payments from Contractor before using any part
thereof for any other purpose
No payment of premium time shall be made to Subcontractor unless such
premium time is authorized in writing by Contractor prior to the working
thereof; but if premium time is so authorized, the premium will be paid for as
extra compensation to Subcontractor over and above the subcontract price. Such
premium will be paid for at the premium rates established by the applicable wage
scale for each craft plus payroll taxes thereon and any workers' compensation
insurance premium that Subcontractor 5 required to pay on account of such
premium time No payment will be made for public liability insurance, overhead,
supervisory services, profit or other charges. Invoices for premium time must
show a breakdown of payroll taxes by percentage and, if a percentage for
workers' compensation premium is applied. evidence that such premiums are
applicable must be submitted. Premium time incurred by reason of Subcontractor's
failure to adhere to the schedule for performance of the Work shall be at the
expense of Subcontractor without payment or reimbursement by Contractor
WITHHOLDING OF PAYMENTS:
8. In addition to amounts retained under Article 7 of this Agreement and in
addition to its other remedies, Contractor may withhold and retain from time to
time out of moneys due Subcontractor hereunder, amounts sufficient fully to
reimburse and compensate itself. Customer or Owner for any loss or damage either
or both of them may sustain, or to indemnify itself and the Owner against any
liens, claims, damages, obligations or liabilities which may be asserted against
any or all of them, or their property, or Surety, by reason of or as a result of
any acts or omission of Subcontractor, its employees, representatives, licensees
or subcontractors in connection with or related to the performance of this
Agreement, including failure to pay its workmen, benefit plans of its employees.
taxes. ~ubcoiitractOr5 or suppliers and inexcusable delays in performance and
completion of the Work. or by re~~oi1 of ai1~ oilier claims Contractor may, have
against Subcontractor in connection with this or any other contract After giving
.subcontractor notice of and reasonable opportunity to satisfy or bond over
amounts due and owing to any creditor
<PAGE>
for Work provided hereunder, Contractor shall have the right, but not the
obligation, to direct payments owed by Contractor to Subcontractor directly to
Subcontractor's creditors, either by joint check payable to both the creditor
and the Subcontractor or by check directly payable to the creditor, in either
case reducing the amount owed to Subcontractor by the amount of such direct
payment.
FINAL PAYMENT:
9. As express conditions precedent to final payment of all sums due
Subcontractor hereunder:
(I) Subcontractor shall have given Contractor and Customer evidence
satisfactory to them of compliance with all requirements of the Contract
Documents (including without limitation furnishing of as-built drawings when
required and waiver, removal or discharge of all liens, claims. obligations and
liabilities which may be asserted),
(ii) Contractor and Customer shall finally approve and accept
Subcontractor's Work; and
(iii) Contractor shall have received payment from Customer for Work
performed by Subcontractor
Payments made pursuant to this Agreement by Contractor shall not be
construed as the waiver of any breach hereof by Subcontractor or as an
acceptance of defective work or of work not in conformance with the terms and
conditions of this Agreement and of the Contract Documents. Subcontractor's
acceptance of final payment shall constitute a final waiver of any and all
claims against Contractor, Customer or otherwise arising out of or in connection
with this Agreement or the Work hereunder.
CHANGES AND EXTRAS:
10. Contractor reserves the right to make changes in, deductions from and
additions to the Work upon written order to Subcontractor. Before proceeding
with any Work involving possible claims by Subcontractor for adjustments in
compensation or time of performance, Subcontractor shall submit in writing to
Contractor a detailed estimate of the price and additional time, if any,
required for such Work and shall secure from Contractor a written order
describing such Work and fixing Subcontractor's compensation and time. in the
event any deductions from the Work result in a material change in the value of
the Work, an equitable adjustment shall be made by the parties hereto in the
subcontract price. Agreement on any change order shall constitute a final
settlement of all items covered therein, subject to performance thereof and
payment therefor as provided in this Agreement. If Contractor and Subcontractor
fail to agree as to the amount of the adjustment, the Work shall proceed as
directed in writing by Contractor while the adjustment is being determined,
which written direction shall not be unreasonably withheld. Failure of
Subcontractor to give Contractor notice of claim and estimate of time and price
prior to proceeding with Work which is the subject of said claim shall operate
as a waiver by Subcontractor of all rights to adjustments in compensation or
time of performance. Any change order or extra work performed without
Contractor's prior written authorization pursuant to the foregoing procedures
shall be at Subcontractor's risk without right of payment or reimbursement under
contract, quantum meruit or otherwise. No prior waiver of notice or failure to
enforce the procedures herein for written orders shall constitute a waiver of
the requirements of this section for written notice to Contractor and written
order from Contractor in connection with subsequent claims for changes or
extras. In no event shall the increase in the subcontract price or the extension
of time, if any, afforded to Subcontractor hereunder exceed hat granted to
Contractor under the Contract Documents with respect to any change in the Work
initiated by Customer or Owner.
INSPECTION:
11. Contractor, Customer and Owner shall have the right, but not the
obligation, to inspect and approve all Work at all times, but the giving or
failure to give any such approval shall not relieve Subcontractor of
responsibility for
<PAGE>
the' proper performance of the Work. Subcontractor shall provide
sufficient, safe and proper facilities at all times for such inspection of the
Work, and shall furnish full information concerning all materials entering into
the Work.
DEFECTIVE WORK:
12. Subcontractor shall, at any time prior to the completion of the Work
and within forty-eight (48) hours after receiving written notice from
Contractor, proceed at Subcontractor's sole cost and expense to remove from the
premises all materials rejected by Contractor, Customer or Owner, whether
assembled or not, and to dismantle all portion's of the Work which shall be
rejected as unsound or improper or in any way failing to conform to the
requirements of this Agreement or the Contract Documents, and to replace the
rejected Work with materials conforming to the requirements of this Agreement
and the Contract Documents and acceptable to Contractor, Customer and Owner, and
to further pay for or replace at its own expense all work damaged or destroyed
thereby
RESPONSIBILITY FOR WORK:
13. Prior to the completion of the Work by Subcontractor and the acceptance
thereof by Contractor, Customer and Owner, all the Work shall remain at the risk
of Subcontractor and Subcontractor shall repair and/or replace any and all loss
or damage to the Work, regardless of the cause of the damage, at Subcontractor's
own cost and expense, provided that the loss or damage was not caused by
Contractor or Contractor's other subcontractors. Subcontractor shall repair,
restore and replace any real or personal property, including tools and
equipment, belonging to Owner, Customer or Contractor which Subcontractor or his
subcontractors or suppliers, or their respective employees or invitees, may
damage or destroy while on Contractor's and Owner's premises.
WARRANTY:
14. Subcontractor shall repair or replace at its own expense, as directed
by Contractor or Customer and at Owner's convenience, any defects in workmanship
or materials which appear within one (1) year from the date of the final
acceptance of the Subcontractor's Work, provided however, that Subcontractor
guarantees the Work to the full extent and for the full period provided in the
Contract Documents (even if longer than the above one (1) year period).
WORKERS' COMPENSATION A~ND EMPLOYMENT TAXES:
15. Subcontractor shall provide and pay, and require his subcontractors, if
any, to provide and pay, and to secure the payment of:
(1) Compensation for occupational diseases and for injuries sustained by or
death resulting to employees of Subcontractors as required by state and federal
laws, including the laws of each state wherein any work hereunder is performed
and where employment contracts of such employees were made and any applicable
Federal laws regarding maritime or Federal employment.
(ii) Contributions and payments with respect to employees of Subcontractor
and his subcontractors to state unemployment compensation funds when and as
required by such unemployment compensation laws.
(iii) Contributions, taxes and premiums payable under Federal and State
laws measured upon the payroll of employees engaged in the performance of Work
under this Agreement.
Upon written request, Subcontractor shall furnish Contractor with
satisfactory evidence that Subcontractor and its subcontractors have complied
fully with all of the requirements of law In any event Subcontractor shall
indemnify and save harmless Contractor, Customer and Owner from and against any
and all actions, claims, damages. fines,
<PAGE>
penalties. attorneys' fees and costs resulting from Subcontractor's failure
to fully comply with all such laws or to purchase such insurance.
TAXES:
16 Subcontractor shall pay all sales, excise, privilege. occupational and
other taxes applicable to materials and supplies furnished or Work performed
hereunder and shall save Contractor, Customer and Owner harmless from liability
for any such taxes.
INDEMNITY:
17. Subcontractor shall indemnify, defend, and hold harmless Contractor,
its officers, employees and agents, the owner of Contractor's rented equipment
used by Subcontractor, and only to the extent required by the Contract Documents
those parties which Contractor is required to indemnify, defend and hold
harmless under the Contract Documents (Contractor and all other parties
collectively "Indemnitees") from and against any and all claims, fines. damages,
losses and expenses whatsoever (including those for bodily injury, personal
injury, sickness, disease or death - hereinafter "Personal Injury'9 or for
injury to or destruction of tangible property including loss of use resulting
therefrom - hereinafter "Property Damage"), in law and in equity, arising out
of; related to or resulting from the performance of Subcontractor's Work
hereunder; or arising out of, related to or resulting from Subcontractor's
borrowing employees of Contractor; or arising out of, related to or resulting
from Subcontractor's use of the Project premises or equipment, facilities, and
other property of Indemnitees (including without limitation tools, cranes,
hoists, watercraft, manlifts, stairs, ramps, ladders, platforms, and scaffolds
used by Subcontractor and its employees, invitees and those of its
subcontractors).
To the fullest extent permitted by law, Subcontractor expressly understands
and agrees that Subcontractor's hereinabove obligation to Indemnitees shall
extend to any such claim resulting from Personal Injury or Property Damage,
regardless of whether or not such claim is caused or alleged to be caused in
part by any joint, concurrent or independent act or omission by Indemnitees
(negligent or otherwise, whether active or passive), or whether or not caused in
whole or in part by unseaworthiness of watercraft or defects in premises,
equipment or facilities used by Subcontractor, but only to the extent such claim
does not arise out of or result from the sole active negligence or willful
misconduct of Indemnitees (other than employees of Contractor borrowed by
Subcontractor). If Indenmitee is an architect, engineer or surveyor, this
indemnity shall not extend to the liability of such Indenmitee arising out of
the preparation or approval of maps, drawings, opinions, reports, surveys,
change orders, designs or specifications by such Indemnity, or Out of the giving
or the failure to give directions or in5tructions by such Indenmitee, where the
giving or the failure to give any directions or instructions is the primary
cause of Personal Injury or Property Damage.
In claims against Indemnitees resulting from Personal Injury to employees
of Subcontractor, those of its subcontractors or anyone directly or indirectly
employed by them, Subcontractor's hereinabove obligation to Indemnitees shall
not be limited by any limitation on the amount or type of damages, benefits or
compensation payable by or for Subcontractor under Worker's Compensation Acts,
Disability Benefit Acts or other employee benefit acts, and Subcontractor
expressly waives any such statutory or constitutional immunity.
Subcontractor, at Subcontractor's sole expense, shall promptly dispose of
all such claims, defend all lawsuits filed against Indemnitees on the account
thereof; pay all judgments rendered against Indemnitees in such lawsuits
(including any prejudgment interest assessed against any Indemnitees hereunder),
and reimburse Indemnitees in cash upon demand for all reasonable expenses
incurred by Indemnitees on the account thereof including, but not limited to,
attorneys' fees, expert witness fees, consultant fees, and court costs, whether
incurred defendant,' the underlying action or incurred enforcing this
indemnification. Subcontractor's obligations to defend Indemnitees shall survive
any judicial determination invalidating, in whole or in part, this Article 17
and shall apply regardless of whether or
<PAGE>
not Indemnitees are found liable for negligence, in whole or in part.
Subcontractor expressly understands and agrees that this Article 17 is supported
by specific consideration included in the subcontract price in the amount of 1%
of the subcontract price and that Subcontractor shall purchase the insurance
specified elsewhere herein for the benefit of Indemnitees to the extent this
indemnity is not otherwise enforceable under the law In no event shall
Subcontractor's legally enforceable indemnity obligation hereunder be limited to
the amount of any insurance available to or provided by Subcontractor.
RESPONSIBILITY FOR SAFETY OF PERSONS:
18. The safety of Subcontractor's employees on Contractor's and Owner's
premises, or any invitee who enters upon the premises for reasons relating to
this Agreement, shall be the sole and exclusive responsibility of Subcontractor.
Subcontractor shall at all times maintain safe working conditions and good order
among its employees and shall not employ on the Work any unfit person or anyone
not skilled in the work assigned to him. Subcontractor shall confine its
employees, invitees, and equipment to that portion of the Project premises where
the Work under this Agreement is to be performed or to roads and access leading
to and from such work Sites, or to any other areas which Owner, Customer or
Contractor may permit Subcontractor to use. Prior to starting any work at the
Project premises, Subcontractor shall submit its safety program to Contractor
for review by Contractor. Subcontractor shall take all reasonable measures and
precautions at all times to prevent injuries to or the death of any of its
employees, invitees and other persons engaged in the Work or other work in
connection with the Project. Such measures and precautions shall include, but
shall not be limited to, all safeguards and warnings necessary to protect all
such persons from and against any conditions which could be dangerous and to
prevent accidents of any kind whenever work is being performed in proximity to
hazardous conditions, facilities, or any moving or operating machinery or
equipment. Subcontractor shall promptly report to Contractor all accidents or
occurrences resulting in injuries to Subcontractor's employees or third parties,
or damage to property of third parties, arising out of or in the course of the
Work, and, when requested, shall frilliness Contractor with a copy of reports
made by Subcontractor to its insurer or to others of such accidents and
occurrences, including statements or any other investigative material.
INSURANCE REQUIREMENTS.'
19. The Subcontractor shall purchase and maintain insurance in accordance
with "SCHEDULE E - INSURANCE AND IBONDS," unless otherwise agreed in writing by
Contractor.
PERMITS AND LICENSES:
20. Except for licenses and permits obtained by Contractor, Customer or
Owner under the Contract Documents, Subcontractor shall secure and pay for all
licenses and permits required for its compliance with all laws, ordinances, and
regulations of the proper public authorities in the performance of its Work.
Subcontractor shall be responsible for all damages and shall indemnify, save
harmless and defend Contractor, Customer and Owner from and against all damages,
fines, penalties and liability therefor, which may arise out of the failure of
Subcontractor to secure and pay for any of said licenses and permits or to
comply with said laws, ordinances and regulations.
PATENTS:
21. Subcontractor agrees to indemnify, save harmless and defend Contractor,
Customer and Owner from and against any and all Suits, legal proceedings,
claims, demands, damages, costs and attorneys' fees incident to any infringement
or to any claimed infringement of any patent or patents in the manufacture. sale
or use of any materials or appliance furnished by Subcontractor under this
Agreement. Contractor shall have the right to approve selection of counsel
appointed by Subcontractor to defend Contractor.
<PAGE>
COOPERATION WITH OTHER CONTRACTORS:
22. All construction forces employed by Subcontractor and its
subcontractors shall at all times be acceptable to Contractor. Customer and
Owner and shall be subject to safety rules and other regulations in force or to
be established at the premises on which this Agreement is to be performed.
Subcontractor and its subcontractors, if any, shall cooperate with Contractor
and other contractors on the premises and shall so carry on their work that
Contractor and other contractors shall not be hindered, delayed or interfered
with in the progress of their work, and so that all of such work shall be a
finished and complete job of its kind.
CLEANING -UP OF PREYTISES:
23. During the progress of the Work, Subcontractor shall store materials
and equipment in an orderly manner and shall keep the premises at all times free
from debris and obstructions. Upon completion of the Work, Subcontractor shall
remove all temporary buildings or facilities erected or installed by
Subcontractor or its subcontractors, all construction equipment, surplus
materials and supplies belonging to Subcontractor or its subcontractors, and
shall leave the premises and the Work in perfect order, clean and ready for use.
SUBLETTING AND ASSIGNING:
24. Subcontractor shall not sublet or assign this Agreement or the Work
hereunder or any part thereof without the written consent of Contractor. ~n case
such consent is given, it shall not relieve Subcontractor from any of the
obligations of this Agreement, and any subcontractor or assignee shall be
considered the agent of Subcontractor and, as between the parties hereto,
Subcontractor shall be and remain liable as if no such subletting or assignment
had been made. Lower-tier subcontracts are subject to the provisions of this
Agreement, and Subcontractor's subcontracts shall incorporate all provisions of
the Contract Documents and this Agreement. Subcontractor hereby assigns to
Contractor all subcontracts and material orders relating to the Work provided
such assignment shall be effective only in the event of default or termination
under Article 6 and then only if Contractor gives specific written notice to
Subcontractor and Subcontractor's subcontractors and material suppliers, and
without liability on part of Contractor until Contractor affirmatively so
accepts the assignment.
APPLICABLE LAWS AND REGULATIONS:
25. Any provision required to be included in a contract of this type by any
applicable and valid Federal, State and local law, ordinance, rule or regulation
shall be deemed to be incorporated herein. In the performance of this Agreement
Subcontractor shall comply with all applicable and valid laws, ordinances, rules
and regulations. This Agreement shall be governed by and interpreted in
accordance with the law of the Commonwealth of Pennsylvania, without reference
to its conflict of laws provisions, unless other law is expressly stated in the
Contract Documents as applicable to the dispute.
WAIVER OF BREACH, SEVERABILITY AND INTEGRATION:
26. Any failure by Contractor at any time, or from time to time, to enforce
or require the strict keeping and performance by Subcontractor of any of the
terms or conditions of this Agreement or of the Contract Documents, shall not
constitute a waiver by Contractor of a breach of any such terms or conditions,
and shall not affect or impair such terms or conditions in any way, or the right
of Contractor any time to avail itself of such remedies as it may have for any
such breach or breaches of such terms or conditions. If any term or condition of
this Agreement or portion
<PAGE>
ARBITRATION AND MEDIATION:
thereof is rendered unenforceable under the law, all remaining terms and
conditions not affected by such determination shall remain in full force and
effect and shall be binding upon the parties hereto. The terms of this Agreement
supersede any prior written or oral proposals, negotiations, representations,
terms or understandings. No modification to this Agreement and no waiver of
rights hereunder shall be valid or binding unless agreed in writing by both
parties.
BONDS:
27. The Subcontractor shall provide a payment bond and a performance bond
if required by '9SCHEDULE E -INSURANCE AND BONDS." Failure of Subcontractor to
promptly provide such required bonds shall be a material breach of this
Agreement and shall entitle Contractor to invoke the termination provisions of
Article 6 hereof and to such other remedies as may be available at law or in
equity.
EQUAL EMPLOYMENT OPPORTUNITY:
28. The Subcontractor agrees to comply with all applicable Federal, State,
and Local laws, ordinances, rules and regulations concerning employment
policies, affirmative action plans and subcontracting to disadvantage
businesses. Hiring goals and provisions of the Contract Documents concerning
Equal Employment Opportunity (and disadvantaged subcontractors, if applicable to
this Agreement) are included as part of the Contract Documents applicable to
this Agreement.
NO THIRD PARTY BENEFICIARIES:
29. To the maximum extent permitted by law, nothing under this Agreement
shall be construed to give any rights or benefits in this Agreement to anyone
other than Contractor and Subcontractor, and all duties and responsibilities
undertaken pursuant to this Agreement will be for the sole and exclusive benefit
of Contractor and Subcontractor and not for the benefit of any other party.
INDEPENDENT CONTRACTOR AND CONTROL OF THE WORK:
30. Subcontractor shall perform the Work under this Agreement as an
independent contractor with exclusive control of the direction and supervision
of the means and methods of performing the Work in accordance with the
requirements of this Agreement and the Contract Documents. Subcontractor shall
be solely responsible and liable for all safeguards, protections and warnings
necessary to prevent Personal Injury or Property Damage arising out of Work
performed under or related to this Agreement, including without limitation
barricading or removing Subcontractor's employees and invitees from hazardous
situations over which it has no control and promptly reporting such conditions
to Contractor. The approval by Contractor, Customer or Owner of the methods of
doing the Work or the failure of Contractor, Customer or Owner to call attention
to improper or inadequate methods or to require any change in methods or to
direct Subcontractor to take any particular precautions or to refrain from doing
any particular thing shall not excuse Subcontractor in case of Personal Injury
or Property Damage. In the event Contractor should, at the request of
Subcontractor, furnish workmen to Subcontractor for any purpose, including
without limitation operation of Contractor's rented or owned equipment which is
used by Subcontractor, Subcontractor shall direct and supervise such workmen and
shall be responsible for their actions while so engaged, and they shall be
deemed to be borrowed employees of Subcontractor.
TERMINATION FOR CONVENIENCE:
31. In the event the Contract Documents provide for termination of the
contract for convenience, Subcontractor shall be bound to Contractor by all such
provisions of the Contract Documents in the same manner as Contractor is bound
to Customer.
<PAGE>
32. In the event the Contract Documents provide for arbitration or
mediation of disputes, Subcontractor shall be bound by all such provisions of
the Contract Documents to Contractor in the same manner as the Contractor is
bound to Customer, provided however that if any dispute between Contractor and
Subcontractor does not involve Customer, then Contractor in its sole discretion
shall not be required to arbitrate or mediate the dispute.
NOTICES:
33. All notices called for or contemplated herein shall be in writing and
shall be deemed given when personally delivered or when both telefaxed and
mailed, postage prepaid, by first class mail to the designated representative of
the C6ntractor or Subcontractor at the telefax number and address shown on the
face of this Agreement. The designated representative and/or the address and
telefax number may be changed by either party by notice to the other party in
the manner aforesaid, provided that such notice shall expressly refer to this
Article 33 and plainly state the change.
SCHEDULES:
34. The following Schedules are attached to and form part of this
Agreement:
SCHEDULE A - SCOPE OF WORK
SCHEDULE B - PROJECT SCHEDULE
SCHEDULE C - CONTRACT DOCUMENTS
SCHEDULE E - INSURANCE AND BONDS (2 pages)
SPECIAL TERMS AND CONDITIONS:
35.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement the
day and year first above written.
Witness: CONTRACTOR
By
Title
Witness: SUBCONTRACTOR
By
Title
<PAGE>
SCHEDULE A - SCOPE OF WORK
The Subcontractor shall construct and complete the following Work:
I. Replace 16 existing bearings with new at 138th Street abutment in the
Bronx and at the 29th Street abutment in Queens.
2. Install four steel troughs on fascia girders at the 138th Street
overpass in the Bronx.
3. Remove approximately 4~ of concrete from the wing walls to free four
girder ends at the 138th Street abutment in the Bronx.
Clarifications:
General Contractor to furnish hydraulic jacks lifting beams, stools and
bolts. General Contractor to arrange access to the Queens jobsite.
The following work is the responsibility of others and is excluded from the
Work of this Agreement:
1. Materials
2. Maintenance and protection of railroad, vehicular and pedestrian traffic
3. Flagmen
4. Removal of paint, field painting or touch-up painting
5. Disposal of contaminated (if any) material
6. Overtime work
<PAGE>
SCHEDULE B - PROJECT SCHEDULE
Subcontractor shall perform its Work in accordance with the following
outline Project Schedule:
Complete all work including Punch List by January 6, 1997.
<PAGE>
SCHEDULE C - CONTRACT DOCUMENTS
The Contract Documents, which are incorporated by reference and included as
part of this Agreement, consist of the following documents:
1. The Prime Contract, the Conditions of the Prime Contract (General,
Supplementary, Special and other conditions) and all other documents contained
or referenced in the Prime Contract.
2. Drawing Number Revision Date
C3
S6
S7
59
510 1
SII
AB Sketches 1, 2 and 3 dated 7/31/96 trough details ConServ shop drawings
for expansion bearing, 2196 and 2197 AB shop drawing 3 trough details
3. Specification Number Title Date
Specifications for bearing rehabilitation Hellgate Viaduct Structure
Revised 6/Z'95 by Parsons, Brinkerhall, Quade & Douglas, Inc.
4. Addendum Number Date
5. Modifications or Change Orders to the Prime Contract issued subsequent to the
execution of the Prime Not applicable to Subcontractor's work.
Contract:
6. Other Documents: NONE
<PAGE>
SCHFDULE E INSURANCE AND BONDS
[NSURANCE NEEDED
E.l Prior to the commencement of the Subcontractor's work, the
Subcontractor shall procure and maintain in full force and effect for the
duration of the term of this Agreement the following insurance coverages and
minimum limits with insurance companies acceptable to Contractor.
COMMERCIAL GENERAL LIABILITY INSURANCE
E.2 The policy shall be written on an occurrence basis with limits not less
than 51,000,000 Combined Single Limit (550,000 limit for Fire Legal Liability).
The coverage provided shall be at east as broad as ISO Form CGOOO I or ISO Broad
Form GL0404, including coverage for Premises-Operations. Independent
Contractors, Contractual Liability (no watercraft or employee bodily injury
exclusion), Broad Form Property Damage including explosion, collapse and
underground hazards. Products-Completed Operations, Personal and Advertising
Injury Liability and Fire Legal Liability. If the policy contains a general
aggregate limitation, then the policy shall be endorsed to provide at least a
52,000,000 specific aggregate for the Work on this project. The policy shall
name Contractor, its officers, employees and agents and all parties required by
the Prime Contract as Additional Insureds (hereinafter collectively "Additional
Insureds). The policy shall also include a cross liability or severability of
interest clause and shall be primary and noncontributory insurance for all acts
or omissions or any other liability of Additional Insureds arising out of
Subcontractor's ongoing operations performed for Additional Insureds or
Subcontractor's use of premises, equipment and facilities of Additional
Insureds. Any other insurance maintained by Contractor for its own benefit, or
for the benefit of other Additional Insureds hereunder, shall be excess and
noncontributory. Any other insurance maintained by other Additional Insureds
hereunder shall also be excess and noncontributory towards Subcontractor's
primary insurance if required by the Prime Contract toward Contractor.
Contractor's general liability policy has been or will be endorsed to apply as
excess over and noncontributory with any valid and collectible insurance
(collectible insurance includes Subcontractor's deductibles and self-insured
retentions) available to Additional Insureds on Subcontractor's policies.
COMMERCIAL I BUSINESS AUTOMOBILE LIABILITY INSURANCE
E.3The policy shall contain limits of not less than 51,000,000 Combined
Single Limit and include coverage for "any auto" or "all owned, hired and
non-owned autos." The coverage shall be at least as broad as ISO Form CAOO0 I,
shall include Contractual Liability coverage applicable to this agreement and
shall name Contractor and all parties required by the Prime Contract as
Additional Insured(s).
EXCESS UMBRELLA LIABILITY INSURANCE
E.4The policy(ies) shall be written with limits of not less than S
3,000,000 Combined Single Limit per occurrence and aggregate for this project,
and coverages shall. as a minimum, follow form of Subcontractor's General
Liability, Automobile Liability. and Employer's Liability coverages, including
contractual liability coverage and coverage afforded to Additional Insured(s).
WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE
E.5The policy shall provide coverage for statutory benefits and Employer's
Liability coverage ofSl,000,000 per occurrence. The policy shall be endorsed to
include USL&HW Compensation Act coverage and Maritime (Jones Act) coverage if
applicable to the work.
BUILDERS' RISK INSURANCE
<PAGE>
E.6 Builder's Risk insurance furnished for Subcontractor's Work on Project
Site: NONE
Deductible Amount: n/a Purchased by: n/a
Waiver of Subrogation on Builders' Risk Policy (applies only if Builder's
Risk policy or similar property insurance is furnished by Contractor, Customer
or Owner) - Contractor and Subcontractor waive all rights against (1) each other
and any of their Subcontractors, Sub-subcontractors, agents and employees, each
of the other, and (2) provided that an insured interest exists, against the
Owner, the Architect, the Architect's consultants, separate contractors, and any
of their subcontractors, sub-subcontractors, agents and employees, for damages
caused by fire or other perils to the extent covered by Builder's Risk or other
similar property insurance provided under the Prime Contract or specified above
and applicable to the Work. except such rights as they may have to proceeds of
such insurance. All requirements of the Prime Contract relating to any
Owner-furnished property insurance are incorporated by reference.
SPECIAL INSURANCE REQUIRED
E.7 The following special insurance coverages are required for this
project:
CERTIFICATES OF INSURANCE
E.8 Prior to commencing the Work, Subcontractor shall provide a Certificate
of insurance, completed and signed by an authorized agent of its insurance
company(ies), as evidence of Subcontractor's compliance to Schedule E of this
Agreement. FAILURE OF CONTRACTOR TO ENFORCE THIS REQUIREMENT SHALL NOT
CONSTITUTE A WAIVER OF SUBCONTRACTOR'S OBLIG~ONS TO PROVIDE INSURANCE AS
SPECIFIED HEREIN. In the event that the Subcontractor fails to obtain and keep
in full force and effect any of the insurance requirements under this Agreement,
Contractor may purchase, but is not obligated to purchase, such coverage and use
any funds payable to the Subcontractor to satisfy any premium requirements.
The Certificate Holder shall be:
Hannibal Construction Co American Bridge Company
Att: Bill King Attn: Ralph J. Whitney
159 w. 127th St. Three Gateway Center, Suite 1100
New York, NY 10027 Pittsburgh, PA 15222-1004
212-663-2000
Fax 212-666-1679
Telephone:412-562-4400
Telefax:412-562-4478
All policies shall be endorsed to provide mandatory 30 days written notice
of cancellation or non-renewal (1 0 days in event of nonpayment) to Certificate
Holder. Failure to inform Certificate Holder of cancellation or non-renewal.
without securing replacement coverage equivalent to that specified herein, shall
constitute a material breach of contract to provide insurance. Contractor shall
rely on Certificates of Insurance as evidence of compliance by the insurance
policies in all respects with the requirements of this Schedule E unless
expressly stated otherwise
<PAGE>
thereon or in any attachments thereto. All deductibles, self-insured
retentions and exclusionary endorsements affecting coverage for the Additional
[insureds must be fully disclosed and are subject to approval of Contractor.
Subcontractor shall be solely responsible for and shall solely pay all
deductibles, self-insurance or similar retentions. NONCONFORMING INSURANCE SHALL
NOT RELIEVE SUBCONTRACTOR OF. ITS OBLIGATION TO PROVIDE INSURANCE AS SPECIFIED
HEREIN unless waived in writing by Contractor, and this obligation shall survive
this Agreement even though Subcontractor has completed its Work and has been
fully paid.
PAYMENT AND PERFORMANCE BONDS
E.9 The Subcontractor shall provide a Payment Bond and a Performance Bond
in the amount of ___________________________________ . The cost of the bonds is
included in the Subcontract Price. Bonds to be executed on Contractor's form by
corporate surety acceptable to Contractor. Surety must be registered in the
State of the Project and must be U.S. Treasury listed for the amount of the
bond.
U.S. BRIDGE OF N.Y., INC.
53-09 97TH PLACE
CORONA, NEW YORK 11368
718-699-OlOOlFax: 718-760-5696
November 6, 1996
N.Y. Iron
842 Rockaway Avenue
Brooklyn, NY 11212
RE: Indonesian Mission United Nations New York, NY
Gentlemen:
We are pleased to quote you a price on the above referenced project for the
lump sum of S210,OO0.00 (Two Hundred Ten Thousand Dollars).
The proposal does not include erection of angles attached to walls as per
section 1 & 2 on drawing E2 and on section 1, 2 & 4 on drawing E3.
Exclusions:
oMiscellaneous iron, stairs and railings.
o Field measurements.
oGrouting & dry packing.
oFire watch
oProtection of existing.
oPremium time.
oP.E. stamp on drawings.
oRemoval of existing.
oField cleaning of existing steel.
oField paint or touch-up.
oArchitectural mechanical HVAC and specifications.
oMetal joist
o Hilti bolts.
o Expansion bolts
o Inspection fees.
o Master mechanic.
o Teamster.
o Standby trades.
very truly yours,
Ronald J. Polito
ARTICLE 1
THE CONTRACT DOCUNTENTS
1.1
The following documents shall constitute integral parts of this Agreement
(this "Agreement"), the whole collectively to be known and referred to as "the
Contract":
(a) This document;
(b) The Contract Documents including the following:
Exhibit "A" Bid Proposal and Form, including the General Conditions and
Requirements
Exhibit "B" Bid Modifications, including the Project General Conditions and
Requirements
Exhibit "C" List of applicable Contract Drawings. Plans and Specifications
Exhibit "D" Schedule of Values
Exhibit "E" Unit Price Schedule
Exhibit "F" Job Schedule (actual)
Exhibit "G" General Terms of Insurance and Certificate of Insurance (actual)
Exhibit "H" "How to Get Paid" memo
Exhibit "I" W-9 Tax Identification Number Form
Exhibit "J" Cost Break Down by Trades Schedule [lender optional]
Exhibit "K" Assignment of Project Documents [lender optional]
Exhibit "L" Contractor's Consent Form [lender optional]
Exhibit "M" Tax Exempt Certificate [if applicable]
<PAGE>
Exhibit 'N" Construction Payment Request Form
Exhibit "0" The Commitment Memorandum
Exhibit "P" Scope of Work-Form
Exhibit "Q" The Precontract Memorandum
Exhibit "R" Notice to Proceed
(c) All Addenda;
(d) All Supplementary Agreements to the Contract.
(e)Civil and Architectural Drawings, Plans and Specifications issued by the
Architect dated May22, 1996, per Exhibit C
(f) Structural Drawings, Plans and Specifications dated June 5, 1996 per
Exhibit C
Any discrepancy or claimed ambiguity between or among the substantive terms
of this document and any other Contract Document shall be controlled by giving
priority to such documents in the following order, the first having the highest
priority:
(a) This Document;
(b) The Commitment Memorandum (Exhibit 0)
(c) The General Conditions and Requirements; and
(d) The Specifications and Drawings.
<PAGE>
PRIME CONTRACT BETWEEN EKLECCO AND CONTRACTOR
CONTRACT#PC-38
This AGREEMENT is (illegible) effective as of the 17th day of June. 1996
(the "Effective Date"), between (the "Contractor") and the Owner ("EklecCo").
The Project is: Palisades Center
Scope of Work: Erection of Structural Steel
The Contractor is: US Bridge of New York, Inc.
53-09 97th Place
Corona, NY 11368
Phone (718) 699-0100
Fax (718) 760-5696
Contractor's Authorized Agent: Ronald or Joseph Polito
Contract's Authorized Attorney:
EklecCo's Authorized Agent: Thomas J. Valenti, ("Agent")
EklecCo's Authorized Attorney: Eric Alderman Associates, LLP
4 Clinton Square, Suite 101
Syracuse NY 13202
(315) 422-6666 Telephone
(315) 422-5050 Fax
The Architect is: Dal Pos Architects
4 Clinton Square
Syracuse NY 13202
(315) 422-0201
The Site Engineer is: O'Brien & Gere Engineers
500 Brittonfield Parkway
East Syracuse NY 13057
(315) 437-1600
The Mechanical Engineer is: Robson & Woese Inc.
5895 Enterprise Parkway
East Syracuse NY 13057
(315) 445-2650
Structural Engineer is: Thorson Baker & Associates
8979 Brecksville Road
Brecksville OH 44141
(216) 546-9720
EklecCo and Contractor agree as set forth in the following pages.
<PAGE>
ARTICLE 2
THE WORK; TERMINATION OF THE WORK
2.1
In consideration of the payments to be made by EklecCo as provided in
Article 6 below. Contractor agrees, at its own sole cost and expense, to furnish
and perform, without exception, all the labor, services and management and to
furnish and install all the materials, plant and equipment necessary to complete
in good, substantial, workmanlike, warranted and approved manner the Work,
described by the Contract Documents, as well as all other work incidental or
related thereto reasonably necessary for a complete and acceptable Scope of Work
for this Project (the "Work") within the time specified and in accordance with
the terms, conditions and provisions of the Contract:
Contractor has been informed by EklecCo and acknowledges that it is
Contractor's sole and independent responsibility to obtain all necessary
information and documents to bid the Contract. Contractor has satisfied itself,
without limitation, that to submit a complete, knowing, binding, LUMP SUM BID,
its bid has been based on all inquiry and documents it deems necessary and
appropriate, and it will in all respects comply in its Work with all local,
town, county, state and federal health, environmental, zoning, building,
plumbing, electrical, sanitary, safety or other codes, ordinances, rules,
regulations, laws or requirements, and that without exception or condition,
Contractor shall be bound by the LUN~ SUNI CONTRACT PRICE (Article 6), except as
specifically set forth in the Contract or a Supplementary Agreement. However,
nothing in this section 2.1 shall impose on Contractor responsibilities relating
to obtaining Site Plan approval.
2.2
The Work including and without limitation is that included in Bid Proposal
and Form and Contract Requirements, the General Conditions and Requirements, the
Contract and Exhibit "P"
2.2.1.
Contractor shall perform its Work to the satisfaction of EklecCo.
Contractor shall abide by all orders, directions and requirements of EklecCo or
EklecCo's Agent. EklecCo or Agent shall be entitled to: interpret the Contract
and any Supplementary Agreement: will, in its commercial reasonable judgment,
decide all questions in connection with the Work; and may reasonably modify
portions of the Work and the Specifications to meet unforeseen conditions or
circumstances arising during the course of the Work. EklecCo, in its
commercially reasonable judgment, will determine the quality and acceptability
of all parts of the Contractor's Work.
<PAGE>
(a) Contractor warrants that all Work, phasing and timing of Work, and all
materials, equipment and appliances are to be as specified in the Contract, and
all Work is warranted and guaranteed to be performed in a workmanlike manner,
acceptable to EklecCo. EklecCo and its agents, architects and engineers shall be
the judge of the quality and acceptability of materials and all aspects of the
Work.
(b) EklecCo or Agent may from time to time issue additional instructions to
Contractor as may be necessary to amplify, augment, modify or clarify the
Contract or the Contract Documents. These instructions may be in the form of
drawings, specifications, interpretations and orders, and will be in connection
with a Supplementary Agreement, unless in connection with a Supplementary
Agreement, such additional instructions shall not be at additional cost to
EklecCo.
(c) The issuance by EklecCo of any payment for any Work prior to Final
Completion, or prior to Final Acceptance and Final Payment by Lender, or, where
applicable, Tenant, shall not preclude EklecCo, Agent, Lender or Tenant, as
applicable, from questioning the acceptability, quality or validity of
Contractor's Work, and shall not constitute a bar or waiver of any rights or
require payment therefor, where it appears to EklecCo Agent, Lender or Tenant,
as applicable, that the Work or materials are inadequate, defective or
insufficient in any manner.
2.2.2
In the event the materials or Work are unacceptable prior to the time any
payment is due, upon receipt of written notice from EklecCo. Contractor shall
have three (3) days to correct the defects at its own expense, and any payment
then due under the Contract shall become due as part of the next regular pay
request period or within 45 days of the completion date of the correction. In
the event the defect cannot be cured within three (3) days, Contractor shall
nevertheless commence substantial work toward the cure within three (3) days and
provide EklecCo with a written schedule thereafter for completion and prosecute
and complete all work necessary to correct the defect(s) with all necessary and
possible speed and diligence.
2.2.3
In the event that defects in the materials or Work are discovered after
paying Contractor any sum due, and within 365 days of the date of completion and
final acceptance of the Work, then, upon receipt of written notice from EklecCo.
Contractor shall have ten (10) days to correct the defects at its own expense.
If Contractor fails, in the sole judgment of EklecCo, to so correct
satisfactorily, within the time specified, EklecCo shall have the right to cure
the defects, and Contractor shall reimburse EklecCo for any and all costs
incurred therein, as described in section 2.2.4 below. In the event the defect
cannot be cured within ten (10) days. Contractor shall nevertheless commence
substantial work toward the cure within ten (10) days and issue to EklecCo a
written schedule for completion and thereafter prosecute and complete all work
necessary to correct the defect(s) with all necessary and possible speed and
diligence.
<PAGE>
2.2.4
If, in the sole judgment of EklecCo, Contractor at any time fails to
satisfactorily correct the defects within the time specified in section 2.2.3
above, EklecCo shall have, in addition to any right provided by law, each of the
following rights:
(a) Correct the defects or cause another Contractor to correct the defects,
and deduct all of the costs therefor from the amount owed Contractor, and, in
addition, collect from Contractor any cost of correction of the defects in
excess of the amount owed the Contractor, including any premium associated with
a supplemental contract,
(b) Accept the Work and issue a credit to EklecCo for the defective or
deficient quality, against the Contract amount then or to become due, and
(c) In the event of Contractor's delay, default or failure timely to
correct a defect in the Work or materials, Contractor acknowledges there will be
unascertainable costs associated with the delay in addition to other
ascertainable costs. If the Work is not satisfactorily performed within the time
specified in the Contract, or within any time extension granted by EklecCo,
Contractor shall pay to EklecCo, in order to compensate EklecCo solely for
unascertainable costs caused by such delay, the sum of $1,000 per day as settled
and liquidated damages for such portion of the damages caused by such
nonperformance. Such payment shall be in addition to and in no event shall
relieve Contractor from liability for those damages and costs which can be
ascertained and for any other direct and consequential damages resulting from
any reasons other than delay, or as specified in the Contract.
2.3
Contractor shall protect its Work until Final Completion and Final
Acceptance of the Work by EklecCo, and Contractor shall make good or replace at
no expense to EklecCo any damage to its Work from whatever cause which may occur
prior to Final Acceptance by EklecCo, except Force Majeure (see section 2.8
below) or as covered by applicable Builder's Risk Insurance.
2.3.1.
The issuance by EklecCo of any payment for any Work prior to Final
Completion, or Final Acceptance and Final Payment by EklecCo, or, where
applicable, Lender or Tenant, shall not preclude EklecCo, Agent, Lender or
Tenant from questioning the acceptability, quality or validity of Contractor's
Work, and shall not constitute a bar or waiver of any rights, or require payment
therefor, where it appears to EklecCo, Lender or Tenant that the Work or
materials are inadequate, defective or insufficient m any manner
<PAGE>
2.4.1
Upon 72 hours Notice to Contractor, and without prejudice to any other
rights or remedies EklecCo may have by law or under the Contract, EklecCo may
terminate Contractor's right to proceed with its Work or a portion thereof in
the event of any of the following:
(a) If in EklecCo's commercially reasonable judgment, Contractor refuses or
fails to timely or adequately supply a sufficiency of properly skilled workmen,
or equipment, or materials of the proper quality, or to perform any of its
obligations hereunder with sufficient diligence to insure completion of the Work
within the time specified: or
(b) If Contractor shall fail to obey: any local, state or federal laws,
rules, regulations, permits, ordinances; or the directions from, through or as a
result of any quality control or other inspectors for the project; or reasonable
and material orders from EklecCo; or fail to obtain necessary or required
licenses or permits; otherwise substantially violate any provision of the
Contract; or
(c) If Contractor becomes insolvent, adjudicated bankrupt or shall tile a
petition for voluntary bankruptcy, reorganization or other relief pursuant to
Federal bankruptcy laws, or makes an assignment for the benefit of creditors. In
this regard, Contractor shall he required, upon EklecCo's request and at any
time, to provide EklecCo with reasonable documentation as to its financial
condition; or
(d) If a receiver or liquidator shall be appointed for Contractor or any of
its property and shall not be dismissed within twenty (20) days after such
appointment, or the proceedings in connection therewith shall not be stayed upon
appeal within the said twenty (20) days: or
(e) If EklecCo becomes dissatisfied for just cause with the manner in which
Contractor is prosecuting the Work; or
(f)If Contractor's Work shows negligent acts or omissions or intentional or
reckless disregard for EklecCo's rights or the best interests of the Project; or
(g) Upon termination of EklecCo's right to proceed for reasons outside
EklecCo's control, a material change in the financial circumstances of the
Project after the commencement date of this Contract, or as provided elsewhere
in this Agreement.
2.4.2
Upon Contractor's receipt of Notice of Termination of Contractor's right to
proceed with the Work, EklecCo shall be entitled to enter upon the Site and to
have the Work completed in such manner as EklecCo in its sole and absolute
discretion may determine.
<PAGE>
Contractor agrees to assign and deliver to EklecCo all material and
material orders related to the Project.
2.4.3
If EklecCo terminates Contractor's right to proceed with the Work for any
reason, Contractor shall not be entitled to receive any further payment, except
as provided in section 2.4.4 below.
CONTRACTOR'S SURETY MUST BE NOTIFIED BY CONTRACTOR OF THE
FOLLOWING SECTION 2.4.4:
2.4.4
Upon terminating the Work or Contractor's notice to proceed, if the unpaid
balance otherwise due and payable to Contractor exceeds the costs of completing
the Work (the "Completion Costs") as provided in this section 2.4.4 , including,
without limitation, the costs of additional inspection, architectural or
engineering services, premiums on supplemental contracts, an allowance of
eighteen percent (10%) for EklecCo's supervision and overhead, plus attorneys'
fees and costs and any damage for delays, such excess shall he paid to the
Contractor. If the Completion Costs exceed the unpaid balance, the Contractor
and its Surety shall he liable to EklecCo for the excess and shall reimburse
EklecCo for such excess within twenty (20) days following written Notice. For
the purpose of this calculation, in NO event shall the unpaid balance due
Contractor at any time, including upon a termination for ANY reason; (I) exceed
the quantum meruit value of the work performed by Contractor; (ii) be calculated
by reference to a contract schedule of values; or (iii) exceed the Lump Sum
Contract Price, when taken together with all of EklecCo's Completion Costs for
the Work, Upon termination of Contractor's right to proceed for any reason
within section 2.4.1 (g) of this Agreement, Contractor shall be entitled to
reasonable demobilization costs, but shall be entitled to any lost profits,
consequential loss, lost opportunity costs, or any other costs or damages of a
like or similar nature.
2.4.5
As a condition of any payment or account reconciliation under this Article,
Contractor must provide all applicable backup and executed Waiver of Lien Forms
in a form acceptable to EklecCo, from each of Contractor's subcontractors, and
their vendors and material suppliers.
2.5
Contractor agrees to cooperate fully with EklecCo, and, as applicable,
Lender and Tenant, and other contractors, subcontractors, trades, utilities and
governmental authorities and agents in the faithful and timely completion of the
Project. This section 2.5 shall be included in all Contracts between Contractor
and its subcontractors, and between EklecCo and all other contractors at the
Project.
<PAGE>
2.6
Contractor agrees that it included in its Lump Sum Contract Price for the
Work under the Contract ANY potential additional work due to the fact that it
does not have an exclusive Site for the Work, that the Project may in whole or
in part be "fast tracked" or performed under adverse weather, coordination or
site or off-site conditions. Contractor agrees it will make no claim for
additional costs for those reasons or because of interferences of any trades,
other contractors, utility work or similar interferences, or the necessity or
desirability of or delays occasioned by coordination issues, delay in
deliveries, by opening certain portions of the Project to traffic, delivery of
materials, installation of utilities and roads, or partial or full occupancy
before the entire Work is completed.
2.7
Contractor shall cooperate with other contractors, subcontractors and
trades employed at the Project including in the cleanup of the Project site.
2.7.1
Contractor agrees that if it is awarded this Scope of Work, it will meet,
as soon as practicable, with all other contractors which will he on site during
the duration of Contractor's Work, and agrees to resolve all inter-contractor
conflicts and coordination problems. EklecCo's Agent shall be available to
moderate such disputes only after contractors have been unable to resolve any
such dispute without Agent's intervention within a time deemed reasonable by
Agent, then the Contractor agrees that EklecCo shall have the authority to
determine the resolution of the dispute and effect enforcement of such
resolution through all lawful means, including the imposition of Back Charges to
a Contract.
2.7.2
Contractor will be solely responsible for maintaining a clean working area
at all times and for properly trucking all material off the job Site daily (see
Article 3, section O of the General Conditions and Requirements). For this
Project, Contractor is required to utilize Miehle Sanitation for all waste
hauling from the site.
2.8
Contractor shall not be liable for, charged with or assessed any damages if
Contractor is delayed in the progress of the Work by any act or occurrence
beyond Contractor's reasonable control, including, but not limited to, any act
of God, or the public enemy, unforeseeable acts of any municipality, local,
state or federal agencies or other public bodies or governmental agencies or
departments, insurrection, fire not of Contractor's cause, restrictions or
freight embargoes ("Force Majeure"). In the event Contractor is delayed by
reason of any of the foregoing, then the time for completion of the Work shall
be extended for such reasonably comparable period as to take into consideration
all such delays by a "no cost" schedule Change Order. Contractor shall give
EklecCo reasonably prompt, but in no event later than 72 hours Notice, of the
occurrence of any such delay and the details as to the delay's anticipated
duration and effect upon the completion date or adjusted completion date for the
Work, failure to provide such Notice shall act as and constitute a WAIVER by
Contractor of any claim for time extension under this section 2.8.
<PAGE>
2.9
It shall be part of Contractor's Work to comply with all laws, rules,
ordinances, orders and directions as provided in this Contract, and to provide
all documentation required of Contractor by this Contract or otherwise
reasonably required by EklecCo pursuant to this Contract.
2.9.1
As part of its Work, and included in its Lump Sum Contract Price provided
in Article below, Contractor shall keep all documents and backup, perform all
reporting, and make all payments of, necessary for and in compliance with, all
state, local and federal laws and regulations pertaining to wages and benefits,
including, but not limited to any contractual agreements affecting the Project
concerning prevailing or other wages and benefits and any agreement(s) with one
or more trades pertaining to the Project.
2.10
The Parties acknowledge that EklecCo is responsible to provide inspection
and testing services for the Project, and, as applicable, for the Work, except,
in the event the Contractor fails to properly notify the Inspection Services of
the need or timing for any testing, or Contractor fails to meet performance or
other Contract standards, and/or Contractor is required to rectify unacceptable
Work which causes additional Inspection Services or expenses, or delay in the
Work of another contractor or trade, Contractor shall he responsible and pay for
any and all additional Inspection, Testing and related fees and expenses.
ARTICLE 3
COMPLETION OF THE WORK
3.1
TIME IS OF TIE ESSENCE OF THE CONTRACT. Contractor proceeds with the Work
at its own risk and expense unless the Work is commenced pursuant to a Notice to
Proceed. The Work to be performed under the Contract shall he commenced no later
than June 17, 1996 and completed no later than (See Exhibit "F') subject to
authorized modifications or extensions. Contractor understands and agrees that
the completion date and duration, not commencement date control Contractor's
obligations as to the timing of the Work. Substantial and Final completion shall
he determined according to Article 8 of this Agreement and Article 6B of the
General Conditions and Requirements.
<PAGE>
ARTICLE 4
MODIFICATIONS OF THE WORK
4.1
Modification of the Work shall be pursuant to a written Change Order or
Settlement Agreement authorized and executed by Agent, or a Backcharge,
collectively or individually, each hereafter referred to as a "Supplementary
Agreement".
4.2
Any change, alteration, adjustment or deviation (a "Modification") from or
of the Contract shall be made only upon written Supplementary Agreement,
approved by EklecCo, and may, therefore, become an add, deduct or equal no
change to the amount of the Work and/or the Lump Sum Contract Price due, as set
forth in Article 6 of this Agreement.
4.2.1
EklecCo may make Modifications in the Work as provided in the Contract
Documents. The Contractor shall he reimbursed only for material Modifications in
the Work resulting in a Change Order or Settlement Agreement, then, only as
authorized by EklecCo, in advance, by an executed Change Order or Settlement
Agreement, and then, payment shall be due only after the subject Work is
completed. Payment to Contractor on Change Orders shall be pursuant to Article 7
below.
4.2.2
For Modifications authorized by Change Order, the cost of the Change Order
shall be determined by EklecCo in its reasonable commercially judgment, in one
of the following ways:
(a) Unit prices or hourly rates previously approved; or
(b) An agreed lump sum price; or
(c) A negotiated price set forth in a Change Order; or
(d) Cost of Materials, Equipment and Labor plus a Fee.
4.2.3
The Contractor's Fee on any Change Order shall be:
(a) For work performed by the Contractor's own forces (that is workers on
the Contractor's direct payroll): ten percent (10%).
(b) For work performed by a Sub-contractor's forces: five percent (5%).
<PAGE>
4.3
No Modification of the Work shall be effective unless first approved by
EklecCo or as required by the Construction Lender unless it interferes with the
progress of the project.
4.4
If Contractor fails to comply with section 2.10 or section 4~5 of this
Contract, then Contractor shall pay for all costs and expenses of the Inspection
and Testing service, or other trade that is affected by Contractors failure to
comply. In the event Contractor disputes the imposition of any such cost or
exposure, EklecCo reserves the right to resolve such dispute as provided in
section 2.7.1 of this Contract.
4.5
Contractor has been given one or more of a schedule to complete its Scope
of Work. which is annexed as Exhibit 'F" to this Contract, outlining start and
completion dates and duration periods for each scope. In any circumstance in
which the start date of the schedule remains unaffected, Contractor shall have
no right to additional fees, costs or expenses relating to schedule change. In
the event of a schedule change which effects the duration, total hours on site
or end date of the schedule, Contractor may request a Change Order pursuant to
section 4.2.1 above, provided, that the change is due in whole or in part to the
acts, omissions, or conduct of another contractor or trade, and then, the remedy
for any such claim for additional compensation shall either be monetarily paid
for by the trade or other trade that is responsible for such delay, or will be a
change in the schedule at EklecCo's discretion.
ARTICLE 5
CONTRACTORS REPRESENTATIONS, WARRANTY AND GUARANTEE
5.1
(a) CONTRACTOR REPRESENTS AND WARRANTS ITS WORK AS FREE FROM DEFECTS IN
MATERIALS AND WORKMANSHIP AND FIT FOR THE PURPOSES FOR WHICH IT IS INTENDED OR
FORESEEABLY MAY BE USED. CONTRACTOR GUARANTEES ALL OF ITS WORK AGAINST DEFECTS
IN MATERIALS OR WORKMANSHIP FOR THE RESPECTIVE PERIODS STATED IN THE CONTRACT
DOCUMENTS, BUT NOT LESS THAN A PERIOD OF TWELVE (12) MONTHS FOLLOWING THE DATE
OF FINAL ACCEPTANCE OF SUCH WORK BY EKLECCO. CONTRACTOR SHALL EXECUTE A SEPARATE
WRITTEN GUARANTEE IF REQUESTED BY EKLECCO.
(b) UNDER THE GUARANTEE OF THIS ARTICLE 5, CONTRACTOR SHALL MAKE GOOD, AT
ITS OWN EXPENSE AND WITHOUT DELAY, ANY DEFECTS OR FAILURE OF ANY PART OF THE
WORK DUE TO POOR OR FAULTY WORKMANSHIP, MATERIALS, MANUFACTURE OR INSTALLATION,
OR DUE TO THE FAILURE OF ANY EQUIPMENT OR MATERIALS TO SATISFACTORILY PERFORM AS
REQUIRED BY THE CONTRACT, THE SPECIFICATIONS OR THIS REPRESENTATION,WARRANTY AND
GUARANTY. CONTRACTOR SHALL ALSO, AT ITS OWN EXPENSE, MAKE GOOD ANY DIRECT OR
CONSEQUENTIAL DAMAGE TO EKLECCO OR ANY PART OF THE PROJECT CAUSED BY SUCH
FAILURE.
<PAGE>
WITH RESPECT TO LATENT DEFECTS, CONTRACTOR AGREES THAT ANY LATENT DEFECT IN
MATERIAL OR WORKMANSHIIP WHICH IS IDENTIFIED WITHIN TWENTY-FOUR (24) MONTHS
FOLLOWING THE DATE OF FINAL ACCEPTANCE OF THE WORK AND PAYMENT OF THE FINAL
RETENTION AMOUNTS ("GUARANTY PERIOD") SHALL BE CORRECTED AT THE CONTRACTOR'S
EXPENSE WITHIN SIXTY (60) DAYS FOLLOWING NOTICE; PROVIDED, HOWEVER THAT IF THE
DEFECT OR REQUIRED CORRECTION ADVERSELY AFFECTS THE OPERATION OF THE PROJECT OR
THE CONTINUATION OF ANY WORK, THE CORRECTION SHALL TAKE PLACE IMMEDIATELY. ANY
WORK REPLACED OR REBUILT DURING THE ABOVE MENTIONED GUARANTY PERIOD SHALL BE
SIMILARLY GUARANTEED FOR A TWELVE (12) MONTH PERIOD STARTING FROM THE DATE OF
ACCEPTANCE OF THE REPAIR, RECONSTRUCTION OR REPLACEMENT.
5.2
(a) WITHOUT LIMITING THE EFFECT OF OTHER WARRANTIES OR REPRESENTATIONS.
EXPRESSED OR IMPLIED, RELATING TO THE CONTRACT, CONTRACTOR WARRANTS AND
REPRESENTS THAT THE CONTRACTOR CAREFULLY HAS EXAMINED ALL THE CONTRACT
DOCUMENTS, THE SITE OF THE PROJECT AND IS FAMILIAR WITH ALL ASPECTS OF THE SITE
AND PROJECT AS THEY RELATE TO THE WORK HEREIN SPECIFIED. THE SCHEDULE OF WORK
AND THE ACTUAL OR POTENTIAL WEATHER, SITE, SITE SUPERVISION, CONTROL AND
COORDINATION, PROJECT, SCHEDULE AND CONTRACTOR PROBLEMS THAT MAY ADVERSELY
AFFECT THE CONTRACTOR'S WORK, ITS SCHEDULE AND THE PROFITABILITY OF ITS BID, AND
THAT NONETHELESS, CONTRACTOR HAS BID AND CONTRACTED THE WORK AS SET FORTH ON A
LUMP SUM BASIS AND ACTED IN ACCORDANCE WITH THAT KNOWLEDGE, UNDERSTANDING AND
EXAMINATION. AND HAS MADE A PART OF THE CONTRACT ANY L[MITATIONS TO THE CONTRACT
OR CONTRACTOR'S WORK ARISING FROM SUCH EXAMINAT'ION. CONTRACTOR UNDERSTANDS THAT
EKLECCO HAS RELIED ON CONTRACTOR'S COMPLIANCE WITH THIS SECTION 5.2 IN AWARDING
THE CONTRACT.
<PAGE>
(b) CONTRACTOR FURTHER WARRANTS THAT CONTRACTOR IS FINANCIALLY SOLVENT.
EXPERIENCED IN THE WORK, EXPERIENCED IN THE SIZE AND MAGNITUDE OF THE WORK,
CAPABLE OF PERFORMING "FAST TRACK" PROJECTS AND COMPETENT TO PERFORM THE WORK IN
ACCORDANCE WITH THE REQUIREMENTS OF THE CONTRACT AND THE SCHEDULE SET FORTH IN
THE CONTRACT DOCUMENTS.
(c) DURING THE PERFORMANCE OF ITS WORK, CONTRACTOR WILL AT ALL TIMES COMPLY
WITH. AND WILL NOT VIOLATE ANY APPLICABLE FEDERAL, STATE, COUNTY, OR LOCAL
STATUTES, LAWS, ORDERS, REGULATIONS. RULES, ORDINANCES, CODES, LICENSES AND
PERMITS OF ANY COURT, AGENCY OR GOVERNMENTAL AUTHORITIES, INCLUDING, WITHOUT
LIMITATION, THOSE RELATING TO ENVIRONMENTAL MATTERS, INCLUDING WITHOUT
LIMITATION, (I) THE CLEAN AIR ACT, THE FEDERAL WATER POLLUTION CONTROL ACT OF
1972, THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976 ("RCRA" ), 42 U.S.C.
SECTION 69 ET SEQ. THE COMPREHENSIVE ENVIRONNNTAL RESPONSE, COMPENSATION AND
LIABILITY ACT OF 1980 (AND ANY AMENDMENTS OR EXTENSIONS THEREOF)("CERCLA"), 42
U.S.C. SECTION 9601 ET SEQ.. THE TOXIC SUBSTANCES CONTROL ACT ("TSCA"). THE
HAZARDOUS MATERIALS TRANSPORTATION ACT, AS AMENDED (49 U.S.C. SECTION 1801 ET
SEQ.), THE RESOURCE CONSERVATION LAW AND ANY AMENDMENTS OR EXTENSIONS TO ANY
SUCH STATUTES, LAWS, ORDERS, REGULATIONS, RULES, ORDINANCES, CODES. LICENSES AND
PERMITS, AND (II) ALL OTHER APPLICABLE ENVIRONMENTAL REQUIREMENTS.
5.3
CONTRACTOR SHALL NOT TERMINATE ANY SUBCONTRACT FOR THE PROJECT HAVING A
CONTRACT OR WORK WITH A VALUE OVER ONE HUNDRED THOUSAND DOLLARS ($100,000),
WITHOUT THE PRIOR W'RIT'TEN APPROVAL OF EKLECCO AND, AS APPLICABLE, ITS TENANT
AND CONSTRUCTION LENDER.
5.4 CONTRACTOR HAS TAKEN ALL STEPS NECESSARY TO LAWEULLY AUTHORIZE THE
EXECUTION OF THIS CONTRACT, AND THAT THIS IS A LAWEULLY BINDING AGREEMENT WHICH
DOES NOT VIOLATE ANY OTHER AGREEMENT TO WHICH CONTRACTOR OR ITS PRINCIPALS ARE A
PARTY OR ARE BOUND.
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ARTICLE 6
THE LUMP SUM CONTRACT PRICE
6.1
(a) EklecCo agrees to pay and Contractor agrees to accept the total. lump
sum consideration of Eight Million Two Hundred Thousand Dollars $8,200,000
(00/100) (the "Lump Sum Contract Price"), as full and sole compensation for
completion of the Work, installation of all materials, use of all equipment and
performance of all obligations under the Contract. The Lump Sum Contract Price
includes Contractor's calculation of and representation that Sales Tax is in the
amount of $38,000.00. Nothing contained in this sections 6.1 shall in any way
relieve Contractor from paying an amount of Sales Tax greater than that stated
in this section, or in otherwise complying with the terms of section 6.1(a) and
6.1(b) below. By executing this Contract, EklecCo has not accepted any
responsibility for paying Sales Tax, nor has EklecCo ratified or adopted
Contractor's calculation of Sales Tax in the event that the Sales Tax actually
due is greater.
(b) In arriving at and agreeing to the Lump Sum Contract Price, Contractor
has taken into consideration all of the requirements of this Contract, including
section 2.6 above, and all costs and expenses incurred and all loss or damages
which may be sustained by reason of delay and the elements, whether arising out
of the place, adverse weather, general conditions or the nature of the Work,
including the existence of other contractors on the job. or for or by reason of
any unforeseen obstruction or difficulty encountered in the prosecution of the
Work. and further taking into account all expenses incurred by, or in
consequence of the or discontinuance of the Work as specified by the terms of
its Contract, and for faithfully completing the Work in good. substantial,
workmanlike warranted and approved manner as herein provided. and for
maintaining the Work in good condition until Final Acceptance.
(c) Subject to section 6.1(b) above, if the Contractor is delayed at any
time in the progress of the Work by any act or neglect of EklecCo, or through
any contractor directly employed by EklecCo, and as a result of such an act or
neglect of EklecCo, or by material changes ordered by EklecCo in the Scope of
the Work, or by reason of lire or any other reason completely beyond the control
of the Contractor. then the sole remedy of Contractor is that the required
completion date, or the duration of any affected Scope of Work as set forth in
the final progress schedule as amended from time to time. shall be extended by
the amount of time that the Contractor shall have been actually and directly
delayed thereby. Contractor's sole right and remedy for delay defined under this
section shall be not more than a day for day extension of time, provided, that
each day of extension shall be added to the schedule consecutively, including
Saturdays, Sundays and legally recognized holidays
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6.2
Contractor understands and acknowledges that there is in effect applicable
to the Project a Prevailing Wage Agreement by which all workers on site shall be
paid the Prevailing Wage, and the fringe benefits applicable to trades working
on the Project.
ARTICLE 7
PROGRESS PAYMENTS
7.1
Based upon Contractor's Application for Payment properly submitted to
EklecCo and subject to revision and/or approval by EklecCo, EklecCo shall make
progress payments to Contractor on account of the Lump Sum Contract Price, as
provided in the Contract Documents (see Exhibit H), for the period indicated on
the Application for Payment as follows:
7.2.1
On or before the 25th of each calendar month, Contractor shall submit to
EklecCo a written and properly completed and documented Contractor's Requisition
("Requisition1'). upon a form provided by or approved by EklecCo, setting forth
a certification of the amount of work performed, equipment used and materials
installed by Contractor under the Contract through the date of Requisition,
together with the value thereof, together with a certification and
acknowledgment by Contractor and all subcontractors. vendors and suppliers that
they have been paid in full for any work, equipment or materials which are the
subject of any previous Requisition pursuant to section 7.8 below, together with
any payment request documents required by Lender pursuant to section 7.3.2
below. If the day on which the Contractor is to deliver its Requisition to
EklecCo, is a Saturday, Sunday or legally recognized holiday, such Requisition
shall be due on the next succeeding day which is not a Saturday, Sunday or
legally recognized holiday.
7.2.2
If the Contractor1s Requisition is subject to audit, or if EklecCo has any
reasonable doubt as to the validity or accuracy of the content of Contractor's
Requisition, then Contractor's right to payment for the disputed amount or any
amount necessarily relating to disputed Work or the completion of disputed Work,
may, in EklecCo's sole discretion, be denied by EklecCo. SUCH DENIAL SHALL NOT,
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UNDER ANY CIRCUMSTANCES, BE THE BASIS FOR CONTRACTOR'S SUSPENSION, DELAY OR
ABANDONMENT OF THE WORK.
7.3.1
Subject to sections 7.2 1 and 7.2.2 above. Contractor shall be entitled to
receive progress payments for its Work performed during the payment periods
established in the Contract. After EklecCo receives Contractor's properly
completed and documented Requisition. and any required payment request form, and
provided EklecCo has received payment, for the work from Lender or Tenant, as
applicable, EklecCo shall mail to Contractor on or about the 15th day of the
month the amount shown on the Requisition as the value of work completed and
materials installed, less:
(a) A retainage of 10% (the "Retainage"). Notwithstanding any other
provision of the Contract, Retainage may not be released until after final
issuance of a Certificate of Occupancy and all applicable payment terms of the
Tenant's Lease or a Commercially Recognized Construction Loan Agreement (the
"Construction Loan Agreement") between EklecCo and its Construction Lender are
satisfied.
(b) The aggregate of previous payments;
(c) The Cash discount provided in section 7.4 below; and
(d) All sums considered necessary by EklecCo. in its sole discretion, to
reflect accurately: (1) The difference between the amount shown on such
Requisition and the actual value of work performed and materials installed: or
(2) To protect EklecCo, the Project and Site from any claim or loss resulting
from Contractor's failure to advance and complete the Work or otherwise to meet
the terms of the Contract.
(e)EklecCo shall not be subject to any penalty, nor shall Contractor be
entitled to any damages in the event Contractor's payment is delayed, as
applicable, by EklecCo's Lender's or Tenant's failure to timely advance a
monthly or other payment to EklecCo when and as due.
7.3.2.
Contractor shall execute and deliver such statements as to progress,
certificates of completion, payments to subcontractors and suppliers, as
EklecCo, Tenant or EklecCo's Construction Lender may request, in addition to all
other requirements of this Article 7.
7.4
EklecCo shall be entitled to a Cash Discount of two percent (2%) (the "Cash
Discount") with respect to any payment timely made to Contractor pursuant to
section 7.3.1 above. provided, EklecCo timely receives Contractor's Requisition,
properly completed and documented; and where and as applicable (for e.g. see
sections 7.2.2 and 7.9) if payment is made by EklecCo at a time other than as
provided in section 7.3.1 or after resolution of any dispute relating to
outstanding payment on a prior Requisition.
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7.5
In no event shall Contractor be entitled to receive any form of payment for
Work prior to the earlier of EklecCo's actual receipt of payment from EklecCo or
Lender or Tenant, as applicable, for that Work or twenty four (24) months after
the completion of the Work.
7.6
If the day on which EklecCo is to mail a payment to the Contractor is a
Saturday. Sunday or legal holiday, such payment date shall be extended to the
next succeeding day which is not a Saturday, Sunday or legal holiday.
7.7.1
Contractor's Requisition for one-half of the Retainage may be submitted no
sooner than thirty (30) days after Final Completion of the Contract Scope of
Work, acceptance of the Work by EklecCo, and, if applicable, its Tenant or
Construction Lender. Contractor's Requisition for the balance of the retainage
may be submitted no sooner than 90 days after Final Completion of the Contract
Scope of Work and acceptance of the Work by EklecCo, and, if applicable, its
Tenant or Construction Lender, and receipt of Final Payment by EklecCo, unless
earlier directed to be paid by the Tenant or Construction Lender(see section
7.7.2 below) Payments of retainage shall also be subject to Cash Discount under
the terms of section 7.4 above.
7.7.2
In the event EklecCo's Construction Lender or Tenant requires a return of
Retainage different than provided in section 7.7.1 above. then EklecCo may
require Contractor to obtain a Bond for Warranty Work or other sufficient
security, as EklecCo chooses and deems appropriate, at Contractor's sole cost
and expense.
7.8.1
Before any payment shall be made by EklecCo, and as a condition thereof,
Contractor shall submit to EklecCo in addition to a Contractor Payment Request
(see Exhibit "N"), and any other documents reasonably required by EklecCo or
EklecCo's Tenant or Construction Lender, a "Payment Receipt and Waiver of Right
to File Lien" in a form acceptable to EklecCo with respect to labor performed,
and equipment and materials furnished, through the date of Contractor's previous
payment Requisition. Contractor also shall submit to EklecCo documentary
evidence, acceptable to EklecCo, of payment by Contractor of and to all its
subcontractors', suppliers' and vendors' bills for labor, equipment, materials
and other expenses or indebtedness incurred by Contractor in the performance of
the Work.
7.8.2
In the event there are any unpaid bills or indebtedness for such labor,
materials or other expenses, provided that no liens have been filed by any
subcontractor, vendor or materialman. EklecCo may, at its discretion, withhold
from any payment otherwise due to Contractor an amount sufficient to pay such
indebtedness or expenses. In the event any such lien has been filed by any
subcontractors, vendors or materialmen, Contractor shall within (3()) days of
the filing of such lien satisfy of record said lien either by payment or filing
are sufficient undertaking, all at Contractor's sole cost and expense (see
section 9.3 below).
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7.8.3
Contractor shall at all times give to EklecCo sufficient evidence that the
Project is free from all liens and claims arising out of the Contractor's work
including, without limitation. estoppels or signed "Payment Receipt and Waiver
of Right to File Lien" forms from all subcontractors and suppliers. in a form
acceptable to its Construction Lender.
7.8.4
Any omission or misstatement with respect to the Contractor's requirements
of this section 7.8 shall be deemed material, and, Contractor agrees, shall
constitute sufficient grounds to vacate any lien filed by Contractor until such
time as the misstatement or omission is cured by payment in full to the
Subcontractor or vendor. Contractor shall have this same provision in all of its
subcontracts and purchase orders.
7.9
If the Work performed by Contractor is on a unit price basis, Contractor
understands that quantities of work performed as reflected on Contractor's
Requisition for Payment must agree with EklecCo's computations of the quantities
of Work performed. In any event, regardless if the Work performed is on a Lump
Sum Contract Price, or unit price basis, if there is disagreement regarding
quantities of Work performed, EklecCo may, in its sole discretion. pay the lower
quantity pending resolution of the difference to EklecCo's satisfaction. In
order to resolve such difference. Contractor promptly shall provide EklecCo with
all documents, work papers, backup and calculations relating to unit costs and
quantities upon EklecCo '5 request.
7.10
Contractor's acceptance of Final Payment for the Work shall constitute a
complete release and discharge of EklecCo from all claims and of all liability
to Contractor for all things done or furnished in connection with the Work,
including any act or neglect of EklecCo relating to or arising from the
Contract. However, payment, final or otherwise, shall not operate to release
Contractor or its surety from any obligation under the Contract, nor shall any
payment be construed to be an acceptance of defective Work or improper
materials.
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ARTICLE 8
FINAL ACCEPTANCE AND PAYMENT
8.l
Final payment, constituting the entire unpaid balance of this Lump Sum
Contract Price shall be paid by EklecCo to the Contractor in accordance with
Article 7, such that Final and complete Payment will be made. provided the Work.
including all Supplementary Agreements and Change Orders, having been completed
and Backcharges deducted. the Contract fully performed, the requirements listed
in Article 6C of the General Conditions have been complied with, and the
Application for Payment, including release of funds placed on "Hold" pursuant to
Article 7, have been accepted and approved by EklecCo.
8.2
NOTWITHSTANDING ANY OTHER PROVISION OF THE CONTRACT, FINAL ACCEPTANCE AND
PAYMENT MAY NOT BE MADE UNTIL ALL TERMS OF THE CONTRACT AND CONSTRUCTION LOAN
AGREEMENT APPLICABLE TO ACCEPTANCE AND PAYMENT, ARE SATISFIED.
ARTICLE 9
INSURANCE AND BOND REQUIREMENTS
9.1
The Contractor shall carry insurance as listed below and furnish to EklecCo
a certification of insurance before construction is started. The certification
must indicate that the insurance will not be canceled when the work specified
therein is in progress without 30 days prior written notice to EklecCo. EklecCo,
and if reasonably requested by EklecCo, any local, state or federal entity
having an interest in and jurisdiction over the property and EklecCo's
Construction Lender, MUST be named as additional named insureds on ALL policies
of insurance.
TYPE LIMITS OF INSURANCE
Workers Compensation & Disability Benefits Statutory
Employers Liability $1,000,000.
Contractors General Liability
Each Occurrence (Combined Single Limit) $1,000,000.
General Aggregate (Per Project) $3,000,000.
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Contractors Auto Liability
Each Occurrence (Combined Single Limit) $1,000,000.
Umbrella Coverage
Each Occurrence $3,000,000.
Aggregate (Per Project) $5,000,000.
Performance, Payment, Material As required by EklecCo
and Warranty Bonds
EklecCo's and Contractors Protective Liability
Each Occurrence $2,000,000.
** Additional Named Insured: EklecCo
The insurance shall conform with the coverage described in Exhibit "G".
9.2
Each party waives on behalf of each Party's insurer, any and all claim or
right or right of subrogation of any such insurer against the other Party for
loss or damage to the property so insured, other than loss or damage resulting
from the will full act or neglect of the other Party. Each Party agrees to
procure and maintain in force at all times during the application of this
Contract, and all extensions and renewals hereof a waiver of subrogation clause
attached to and made a part of each of its insurance policies in the following
form:
WAIVER OF SUBROGATION
This insurance shall not be invalidated should the insured waive in
writing, prior to a loss, any or all rights of recovery against any Party for a
loss occurring to the property described herein, caused by or resulting from the
hazards or perils insured by this policy.
Notice is accepted by this provision that the insured has agreed in
writing, prior to a loss, to WAIVE any or all of such rights of recovery from
EklecCo, its officers, partners, agents, employees, principals and invitees.
9.3
Contractor shall pay off and discharge any and all debts and obligations
incurred pursuant to performing the work set out in the Contract. including but
not limited to obligations owed to vendors and suppliers of materials, and to
subcontractors and
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Subcontractors' sub-subcontractors and their suppliers. Contractor
specifically agrees to defend, indemnify and bold EklecCo, Lender and Tenant
harmless from and against any and all claims or liability arising in any way out
of or as a result of the performance of the Contract, including the reasonable
costs of EklecCo's legal counsel for advice, negotiation, drafting and
litigation, together with all lien, filing, bonding and litigation expenses.
9.4
Notwithstanding any other provision of this Agreement, if arid to the
extent EklecCo agrees to reimburse Contractor for insurance or bond requirements
under this Article 9. such reimbursement shall be at cost only. Contractor shall
not be entitled to charge profit or overhead on the cost of such insurance or
bonds.
9.5
Notwithstanding any other provision of this Agreement, EklecCo agrees it
will not take a two percent (2%) discount against the payment of any requisition
for the reimbursement cost nor will EklecCo hold any retainage on the
reimbursement cost for any such insurance or bonds.
ARTICLE 10
(Intentionally Omitted)
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1
Terms used in this Agreement which are defined in the Contract Documents
shall have the meanings designated in those Contract Documents.
11.2
The Contractor may not assign, sublet, subcontract or delegate any part or
the whole of its Work, rights or duties, nor any money due or to become due to
Contractor under the Contract. Any assignment, sublet, subcontract or delegation
of its Work, rights or duties by Contractor shall be VOID, unless upon prior
Notice to and written receipt of approval of EklecCo and, as applicable, its
Tenant or Construction Lender.
11.3
Contractor shall cooperate with EklecCo in the creation, maintenance,
storage and retrieval of all documents applicable to the Project; Contractor
shall retain all its records in retrievable form for six (6) years from the date
of final acceptance; EklecCo shall have access to all Contractor's documents
applicable to the Project upon request and no later than after 72 hours Notice.
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11.4
Contractor shall have absolutely no claim under any circumstances
for consequential damages arising from or relating to the
Contract.
11.5
In the event EklecCo terminates Contractor's Notice to Proceed
for a reason specified in section 2.4.1(g) above, Contractor
shall have no claim for damages other than direct, actual and
necessary demobilization costs arising from EklecCo's failure to
proceed with or finish any part or all of the Project or
Contractor's Scope of Work; EklecCo shall have NO obligation
whatsoever to the Contractor in the absence of an executed Notice
to Proceed issued to Contractor by EklecCo.
11.6
Contractor shall be required to execute and deliver such
statements as to progress, certificates of completion, payments
to subcontractors and Suppliers, and the like, as EklecCo, or as
applicable, its Lender or Tenant, may from time to time request.
11.7
Where the Contract provides for the exercise of EklecCo's
judgment or discretion. such judgment or discretion shall be
reasonably exercised under all the conditions and circumstances
existing, and/or anticipated by EklecCo at the time of the
exercise of EklecCo's judgment or discretion.
ARTICLE 12
LIMITATION OF EKLECCO'S AND ITS PARTNERS' LIABILITY
12.1
Contractor, its partners, shareholders, successors and assigns are limited
solely to the estate, interest and property of EklecCo in the real property, and
improvements to the real property. upon and for which the Work is being
performed, for the satisfaction of any of Contractor's remedies, or for the
satisfaction of any liens, rights or the collection of any damages, judgment or
other judicial process with respect to any of the terms and conditions of the
Contract, or any other obligations created by, under or related to the Contract.
12.2
Contractor, shall not have any recourse to or against any other property or
assets of EklecCo or its partners affiliates, alter egos, trusts, trustees,
beneficiaries, successors, assigns, nor shall EklecCo or its agents, employees,
partners, affiliates, representatives, insurers, nor shall any of EklecCo's
banking institutions or trusts be subject to levy, execution or other
prejudgment or judgment enforcement or attachment for the satisfaction of
Contractor's remedies arising from or relating to the Contract.
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12.3
EklecCo's partners, affiliates, trusts, trustees and beneficiaries are not
and shall not become personally liable under the Contract, nor shall they be
named in any action arising from or relating to a breach of the Contract.
ARTICLE 13
SAFETY PRECAUTIONS AND PROCEDURES.
13.1
Contractor agrees to abide by the requirements of the Occupational Safety
and Health Act of 1970, as amended, and all other federal, state, and local
laws, rules, regulations or ordinances relating to the Work, including, but not
limited to, the maintenance of records required by the Act at the Site,
immediate compliance with any OSHA officer's request or notice of violation, and
compliance with all standards of the Act now or in the future.
13.2
Contractor must comply specifically with OSHA 1910.1200 and maintain a
written Hazard Communication Program, including but not limited to the
following:
(a) proper container labeling:
(b) procuring, maintaining and submitting copies to EklecCo of all Material
Safety Data Sheets (MS DS) required on the job; and
(c) employee training and information
13.3
In addition, Contractor agrees to enact and follow its own safety policy,
including but not limited to, the following:
(a) Contractor's appointing one or more of its employees to act as a
Project Safety Committee; and
(b) Where applicable, Contractor shall follow the rules and procedures as
outlined in EklecCo's Loss Prevention Manual, including compliance with the
required Accident Reporting Procedures.
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13.4
Contractor is solely and fully responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the Work and
Work Site including general Project Site conditions. Contractor acknowledges and
agrees that it is fully responsible for the supervision and control of the Work
and of Contractor's employees, subcontractors or supplies and the manner in
which the Work is performed. Contractor acknowledges that most on-the-job
accidents resulting in personal injury or property damage are related to the use
of scaffolding accidents relating to elevations, ladders, construction staging
or to the noncompliance by personnel to the OSHA rules, regulations or standards
regarding wearing of hard hats, safety helmets and safety eye-wear. Contractor
agrees that it will fully comply with all safety regulations. rules and
standards which may have application to the Work relating to the use of
scaffolding, ladders, elevations and construction staging and to the proper use
of hard hats, safety helmets and safety eye-wear, and Contractor agrees that it
shall be Contractor's sole responsibility to insure that each of its employees,
subcontractors and suppliers are also fully aware of and in compliance with all
such rules, regulations and standards at all times.
13.5
Contractor shall fully protect, defend, indemnify and save EklecCo harmless
from and against all liability, judgments damages, costs and expenses arising
from the failure, omission, or neglect of Contractor or Contractor's employees,
agents, subcontractors and suppliers to comply with the requirements of this
Article 13 and with the Occupational Safety and Health Act of 1970, as amended,
other federal and state and local safety requirements. Contractor's obligation
to defend, indemnity and save EklecCo harmless will extend to any citations(s)
and proposed penalty(ies) issued to any entity by OSHA or other governmental
agency arising out of performance of the Contract by Contractor, its employees
or any subcontractor or supplier of Contractor.
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ARTICLE 14
ADDRESSES AND TERMS FOR NOTICES
14.1
(a) All Notices shall be delivered in one of the following ways: certified
mail, return receipt requested; telefax between the hours 5:30 a.m. and 7:00
p.m. Monday - Saturday with originating machine confirmation notice attached to
the original hard copy and produced upon demand: or hand delivered with either a
signed receipt or affidavit of service retained by the party giving Notice.
If to EklecCo:
EklecCo
4 Clinton Square
Syracuse, New York 13202
ATTN: Thomas J. Valenti
Phone: (315) 422 - 0090
Fax: (315) 422 - 3569
If to Contractor:
US Bridge of New York
53-09 97th Place
Corona, NY 11368
ATTN: Ronald or Joseph Polito
Phone: (718) 699-0100
Fax: (718) 760-5696
ARTICLE 15
GOVERNING LAW
15.1
The Contract shall be governed by laws of the State of New York. This
Agreement was entered into, and the place of trial of any action between EklecCo
and the Contractor relating to the subject matter of the Contract shall be In
New York Supreme Court, Onondaga County, New York.
ARTICLE 16
SAVINGS CLAUSE
16.1
Should any part of the Contract be found to be invalid or illegal by reason
of any existing or subsequently enacted legislation or by any decision of a
court of competent jurisdiction, it [illegible] that such findings shall not
[illegible] remainder of the Contract and the remaining paragraphs or parts
shall remain in lull force and effect.
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ARTICLE 17
WAIVERS
17.1
No inspection or approval by EklecCo. Agent, the Tenant or Lender, or any
of their respective employees, nor any order or certification by EklecCo, Agent.
Tenant or Lender, nor payment shall operate as a waiver of any provisions of the
Contract.
17.2
(a) No failure of either Party to insist upon performance of any term of
the Contract shall be deemed a waiver of the effect any other term of the
Contract. unless specifically provided in the Contract.
(b) No waiver of any breach of the Contract shall be construed to be a
waiver of any other prior or subsequent breach.
17.3
To the extent allowed by law, each Party waives its right to a trial by
jury of any claims arising from a breach or interpretation of the Contract.
ARTICLE 18
INTEGRATION CLAUSE
18.1
(a) The Parties agree that there are no understandings or agreements with
respect to the Contract which are not set forth herein, that the Contract and
the Contract Documents contain the entire agreement between Contractor and
EklecCo, and that the Contract Documents shall be the sole evidence of the
content and meaning of the Contract Documents. The Contract cannot be modified
except in writing signed by the Parties hereto.
(b) All EklecCo's remedies in the Contract shall be construed as being
cumulative in addition to any other remedy.
IN WITNESS WHEREOF, the Parties have hereto set their hands and seals
effective the day and year first above written.
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NOTICE: THIS IS A LEGALLY BINDING CONTRACT. IT AFFECTS SUBSTANTIAL LEGAL
RIGHTS.
THIS CONTRACT IS NOT A STANDARD AIA PRIME CONTRACT FORM. YOU SHOULD READ
EACH PART AND THE WHOLE FULLY AND CAREFULLY BEFORE YOU EXECUTE IT. IF YOU HAVE
ANY QUESTIONS, YOU SHOULD CONSULT WITH YOUR LAWYER.
EKLECCO WILL STRICTLY BIND YOU TO THE REQUIREMENTS AND OBLIGATIONS OF THIS
CONTRACT.
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BID PROPOSAL FORM and INSTRUCTIONS TO BIDDER
DATE: 2/13/96
BID PACKAGE No. E-076S
SCOPE OF WORK BEING BID: STRUCTURAL SHELL ERECTION
1. PROJECT AND PROJECT LOCATION:
Palisades Power Mall
Route 59
West Nyack. New York 10994
2A. PROJECT DEVELOPER
EklecCo
2B. MAILING ADDRESS:
4 Clinton Square
Syracuse, NY 13202
315-422-0090
315-422-3569 (fax)
2C. CONTACT FOR QUESTlONS ON THIS BID PACKAGE
Mike Barney 315-422-0090
315-422-3569 (fax)
3. PURPOSE OF BID PROPOSAL
The EklecCo intends with this bid Proposal Form to procure a Bidder to
perform all necessary and associated work to adequately and properly
complete the Scope of Work pursuant to this Bid Proposal. Bidders are
welcome and encouraged to submit any and all potential design changes
and alternates which may result In cost savings and/or acceleration of
the schedule. Please submit base bid pursuant to the plans and
specifications, and attach separately any potential alternates or
comments. You may not change, add to or delete from the Scope of Work
described In your base bid.
4. GENERAL SCOPE OF WORK:
Erection and installation of structural shell including precast
concrete columns, steel columns, steel beams, floor decks, roof decks
and roof joist according to the Plans and Drawings by Thorson Baker &
Associates as per the drawing list attached as (Exhibit "A"), and
Sequencing and Grading Plan by EklecCo attached as ("Exhibit C"). Also
includes all other work normally associated with the erection and
installation of structure at a shopping center, required by and
necessary for a completed project as indicated in the bid documents.
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5. BID REUTRN:
Bid Due: March 1, 1996
Deliver To: Mike Barney
EklecCo
4 Clinton Square
Syracuse, NY 13202
Or Via Fax: (315) 422-3569.
6. BID DRAWINGS FOR THE PALISADES POWER MALL
A. To obtain a complete set of drawings and specifications for
approximately $40, please contact:
Liverpool Blue Print
429 1/2 Electronics Boulevard
Liverpool NY 13088
(315) 457-0472
Contact: Scott Taylor
Please request drawings for bid #E-076.
B. Attached to this Bid Document are the following:
I. Drawing list attached as Exhibit "A"
II. Sample copy of a Certificate of Insurance with necessary
Project coverage requirements, attached as Exhibit "B".
III. Sequencing and Grading plan attached as Exhibit "C".
7. PERFORMANCE AND PAYMENT BONDS:
If requested by Developer, can bidder provide a performance and payment bond?
Yes No (Circle One)
YOUR COST OF BOND PER THOUSAND: $ 10.00
NAME OF YOUR BONDING COMPANY:
United American Guarantee Company Ltd. ADDRESS: 85 Central Street, Boston,
Massachusetts 02103
CONTACT PERSON: Thomas P. Carrigan Sr.
TELEPHONE: (617) 357 - 4470
FAX: (617) 357 - 4480
<PAGE>
NAME OF YOUR INSURANCE AGENT: Serres, Visone & Rice
ADDRESS: 108 Greenwich Street
New York, NY 10006
CONTACT PERSON: Joseph DeMattina
TELEPHONE: (212) 349 - 3500
FAX: (212) 608 - 5112
8. DESCRIPTION OF WORK
Bidder will be expected and required to provide all necessary and appropriate
labor, materials, toots, equipment, supervision and coordination to erect
structural shell elements pursuant to the Plans and Specifications. The Bidder's
Scope of Work shall also include but is not limited to:
A. Bidder shall erect steel beams, columns, roof joist, shear studs, floor
decking. roof decking, and precast columns, which will be delivered to the site.
B. Bidder shall be responsible for accepting all pr~purchased steel,
decking. and precast columns, and shall unload, ~l'ake-out, inventory, and
inspect all such matenal.
C. The Work must conform to all local, state and federal codes, rules,
regulations and specifications and the directions of any agency or Authority
having jurisdiction on this Project. including but not limited to the Town of
Clarkstown, Rockland County, New York State Thruway Authority, New York State
Department of Transportation, OSHA and New York State Department of
Environmental Conservation.
D. The Project is subject to prevailing wage rates applicable to the West
Nyack and Rockland County region, and all prevailing benefits of any collective
bargaining agreements applicable to trades working on the Project. All work will
be awarded on a merit basis.
E. Bidder shall be responsible to coordinate with all other Bidders on site
during the construction of this Project to ensure the proper completion of
Bidder's scope of work within the specified time limits. Bidder's job supervisor
shall participate fully in Bidders' meetings as required and needed.
F. Bidder must supply all shear studs and erection bolts.
G. Bidder will be responsible for securing and paying for all permits,
licenses and fees required by this Scope of Work.
H. Bidder shall include all applicable tax in its Lump Sum Bid.
I. The EklecCo Prime Contract is available for review and discussion upon
request.
J. Bidder has incorporated the above items into its base bid and
acknowledges that it is in receipt and fully includes such documents and
requirements In Its Lump Sum Base Bid Price, with no exceptions.
<PAGE>
9. COST BREAKDOWN FOR COMPARISON EVALUATIONS
A: Structural Erection $(Material)
$ 6,135,000.00 (Labor)
$ not included (tax)
$ 6,135,000.00 (TOTAL)
B. Steel Decking Installation $(Material)
$ 3,525,000.00 (Labor)
$ not included (tax)
$ 3,525,000.00 (TOTAL)
C. Steel Joist Installation $(Material)
$ 699,000.00(Labor)
$ not included (tax)
$ 699,000.00 (TOTAL)
D. Sheer Stud Supply and Installation $ 320,000.00(Material)
$ 865,000.00 (Labor)
$ not included (tax)
$ 1,185,000.00 (TOTAL)
E. Erection Bolt Supply and Installation $ 369,000.00 (Material)
$(Labor)
$ not included (tax)
$ 369,000.00 (TOTAL)
F. General Conditions and Requirements $
Mobilization $ 315,000.00
Supervision & Engineering $
Insurance $
Other $
G. TOTAL $ 689,000.00(Material)
$ 11,218,000.00(Labor)
$ not included (tax)
$ 12,222,000.00(TOTAL)
X Twelve million two hundred and twenty two thousand 00/100 Dollars
9. COST BREAKDOWN FOR COMPARISON EVALUATIONS
A: Structural Erection $(Material)
$ 5,874,000.00(Labor)
$ not included (tax)
$ 5,874,000.00(TOTAL)
B. Steel Decking Installation $(Material)
$ 2,460,000.00(Labor)
$ not included (tax)
$ 2,460,000.00(TOTAL)
C. Steel Joist Installation $(Material)
$ 565,000.00(Labor)
$ not included (tax)
$ 565,000.00(TOTAL)
D. Sheer Stud SuppIy and
Installation $ 275,000.00(Material)
$ 725,000.00(Labor)
$ not included (tax)
$ 1,000,000.00(TOTAL)
E. Erection Bolt Supply and
Installation $ 325,000.00(Material)
$(Labor)
$ not included (tax)
$ 325,000.00(TOTAL)
F. General Conditions and
Requirements $
Mobilization $ 300,000.00
Supervision & Engineering $
Insurance $
Other $
G. TOTAL $ 600,000.00(Material)
$ 9,924,000.00 (Labor)
$ not included (tax)
$ 10,524,000.00(TOTAL)
X Ten million five hundred and twenty four thousand 00/100 Dollars
<PAGE>
10. UNIT PRICES:
A. Structural Shell Erection
<TABLE>
<CAPTION>
<S> <C>
1. Structural Steel $per/ton
2. Precast Concrete Columns $per/column
3 Decking Sper/square
4. Roof Joist $per/ton
5. Sheer Studs $per/stud
6. Erection Bolts $per/bolt
</TABLE>
11. SUBSTITUTION AND/OR VALUE ENGINEERING
Bidder is welcome to submit on separate company letterhead and attach
with this Bid Proposal Form any potential substitutions for value
engineering which could result in a cost savings to the Project.
Bidder's base lump sum price should be bid pursuant to the plans and
specifications. Any cost savings found to be acceptable will be
incorporated into the final base lump sum price. Bidder is welcome to
bid breakouts or small pieces of the erection job. Please submit any
single tower price in writing on company letterhead.
12. ADDITIONAL INFORMATlON REQUESTED:
The following information must be submitted with the Bid Proposal Form:
A. Copy of Bidder's Certificate of Insurance.
B. Reference list with contacts and telephone numbers of recent
projects.
C. Critical path schedule.
13. BID SUBMITTED BY:
Firm Name: U.S. Bridge of N.Y., Inc.
Address: 53-09 97th Place, Corona, NY 11368
Contact: John G. Bauer
Telephone No.: (718) 699 - 0100
Fax No.: (718) 760 - 5696
Authorized Signature:
Name: (Please Print):
Title: CAO
<PAGE>
February 13, 1996
From: Michael Barney
EklecCo
Four Clinton Square
Syracuse, N.Y. 13202
315 422-0090
To: All Structural Shell Erection Bidders:
Re: Cost Breakdown Addendum
Please substitute item number 9 (Cost Breakdown for Comparison Evaluations) in
bid package E076s with the following 6 page Cost Breakdown. This Addendum will
give EklecCo the flexibility to evaluate and award sections of work if feasible.
Reference the enclosed Area Map in order to breakdown the bid Into the six (6)
distinct areas for pricing. This small Area Map is identical to the larger Area
Map enclosed with the original bid.
Sincerely,
Mike Barney
EklecCo
(2) Enclosures
<PAGE>
[GRAPHIC]
<PAGE>
9. COST BREAKDOWN FOR COMPARISON EVALUATIONS
Area 1:
<TABLE>
<CAPTION>
<S> <C>
A: Structural Erection $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
B. Steel Decking Installation $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
C. Steel Joist Installation $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
D. Sheer Stud SuppIy and Installation $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
E. Erection Bolt Supply and Installation $ (Material)
----------------
$ (Labor)
---------------
$ (tax)
----------------
$ (TOTAL)
----------------
F. General Conditions and Requirements $
Mobilization $
Supervision & Engineering $
Insurance $
Other $
G. TOTAL $ (Material)
--------------------------
$ (Labor)
--------------------------
$ (tax)
-------------------------
$ (TOTAL)
-------------------------
</TABLE>
9
<PAGE>
<TABLE>
<CAPTION>
Area 3:
<S> <C>
A: Structural Erection $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
B. Steel Decking Installation $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
C. Steel Joist Installation $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
D. Sheer Stud SuppIy and Installation $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
E. Erection Bolt Supply and Installation $ (Material)
----------------
$ (Labor)
---------------
$ (tax)
----------------
$ (TOTAL)
----------------
F. General Conditions and Requirements $
Mobilization $
Supervision & Engineering $
Insurance $
Other $
G. TOTAL $ (Material)
--------------------------
$ (Labor)
----------------------------------------
$ (tax)
-------------------------
$ (TOTAL)
-------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Area 4:
<S> <C>
A: Structural Erection $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
B. Steel Decking Installation $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
C. Steel Joist Installation $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
D. Sheer Stud SuppIy and Installation $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
E. Erection Bolt Supply and Installation $ (Material)
----------------
$ (Labor)
---------------
$ (tax)
----------------
$ (TOTAL)
----------------
F. General Conditions and Requirements $
Mobilization $
Supervision & Engineering $
Insurance $
Other $
G. TOTAL $ (Material)
--------------------------
$ (Labor)
----------------------------------------
$ (tax)
-------------------------
$ (TOTAL)
-------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Area 5:
<S> <C>
A: Structural Erection $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
B. Steel Decking Installation $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
C. Steel Joist Installation $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
D. Sheer Stud SuppIy and Installation $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
E. Erection Bolt Supply and Installation $ (Material)
----------------
$ (Labor)
---------------
$ (tax)
----------------
$ (TOTAL)
----------------
F. General Conditions and Requirements $
Mobilization $
Supervision & Engineering $
Insurance $
Other $
G. TOTAL $ (Material)
--------------------------
$ (Labor)
----------------------------------------
$ (tax)
-------------------------
$ (TOTAL)
-------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Mall Area:
<S> <C>
A: Structural Erection $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
B. Steel Decking Installation $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
C. Steel Joist Installation $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
D. Sheer Stud SuppIy and Installation $ (Material)
----------------
$ (Labor)
----------------
$ (tax)
----------------
$ (TOTAL)
----------------
E. Erection Bolt Supply and Installation $ (Material)
----------------
$ (Labor)
---------------
$ (tax)
----------------
$ (TOTAL)
----------------
F. General Conditions and Requirements $
Mobilization $
Supervision & Engineering $
Insurance $
Other $
G. TOTAL $ (Material)
--------------------------
$ (Labor)
----------------------------------------
$ (tax)
-------------------------
$ (TOTAL)
-------------------------
TOTAL LUMP SUM BID FOR ALL AREAS (IF APPLICABLE) $ TOTAL
-------------------------
</TABLE>
<PAGE>
EklecCo
PALISADES POWER MALL PROJECT
GENERAL CONDITIONS AND REQUIREMENTS
INDEX
<TABLE>
<CAPTION>
<S> <C>
1 .......................... GENERAL PROVISIONS
A ........ General Provision I
B ........ Definitions 1
1 The Contract 1
2 The Contract Documents 1
3 The Work
4 The Project
C ........ Execution, Correlation, Intent and Interpretations 1
D ........ Copies Furnished and Ownership 2
2 .......................... OWNER
A ........ Definitions 2
B ........ Information to be Provided to Contractor 3
C ........ Administration of Contract 3
3 .......................... CONTRACTOR
A ........ Definitions 3
B ........ Review of Contract Documents 4
C ........ Supervision and Construction Procedures 4
D ........ Labor and Materials 4
E ........ Warranty S
F ........ Sales and Use Tax 6
G ........ Permits, Fees and Notices 6
<PAGE>
H ........ Superintendent 7
I ........ Responsibility for Those Performing the Work 7
J ........ Progress Schedule 7
K ........ Drawings and Specifications at the Site 8
L ........ Shop Drawings, Submittals, and Samples 8
M ........ Use of Site 9
N ........ Cutting and Patching Work 9
0 ....... Cleaning Up 9
P ........ Access to Work 10
Q ........ Royalties and Payments 10
4 .......................... SUB-CONTRACTORS
A ........ Definition 10
B ........ Award of Subcontracts and Other Contracts
for Portions of the Work 10
C ........ Subcontractual Relations 11
5 .......................... SEPARATE CONTRACTS
A ........ Owners Right to Award Separate Contracts 12
B ........ Responsibility Among Contractors 12
6 .......................... PAYMENTS AND COMPLETION
A ........ Schedule of Values 13
B ........ Substantial Completion 13
C ........ Final Completion and Final Payment 13
7 .......................... PROTECTION OF PERSONS AND PROPERTY
A ........ Safety of Persons and Property 14
B ........ Fire Protection 15
C ........ Emergencies 15
<PAGE>
8 .......................... INSURANCE
A ........ Contractor's Liability Insurance 16
9 .......................... UNCOVERING AND CORRECTION OF WORK
A ........ Uncovering the Work 16
B ........ Correction of Work 16
C ........ Acceptance of Defective or Non-Conforming Work 17
10 ......................... PERFORMANCEBOND 17
11 ......................... TESTS 17
12. PROJECT MEETINGS
A ........... General Provisions 18
1 . Purpose 18
B ........... Execution 18
I .... Meeting Schedule 18
2 .. Meeting Location 19
3 .. Project Meetings 19
13. SUBMITTALS AND SUBSTITUTIONS
A ........... General 20
1 .. Description 20
2 .. Quality Assurance 20
<PAGE>
3 Submittals 21
4 Substitutions 21
B ........ Products 22
1 Shop Drawings 22
2 Manufacturers' Literature 22
C ........ Execution 22
1 Identification of Submittals 22
2 Grouping of Submittals 23
3 Timing of Submittals 23
4 Consultant's Review 23
14 ......................... SCHEDULE OF VALUES
A ........ Description 24
B ........ Submittals 24
15 ......................... TEMPORARY FACILITIES AND CONTROLS
A ........ General 25
1 Description 25
2 Product Handling 25
B ........ Products 25
1 Temporary Utilities 25
2 Field Offices and Sheds 26
3 Enclosures 27
4 Temporary Fencing 27
5 Communication Equipment
C ........ Execution 27
1 Maintenance and Removal 27
16 ......................... RIGHT AND REMEDIES 28
</TABLE>
<PAGE>
EklecCo
GENERAL CONDITIONS AND REQUIREMENTS
ARTlCLE 1 - GENERAL PROVISIONS
A. ANY PROVISION OF THESE GENERAL CONDITIONS AND REQUIREMENTS
WHICH IS IN CONFLICT WITH THE CONTRACT SHALL YIELD TO AND BE
CONTROLLED BY THE APPLICABLE PROVISION (S) OF THE CONTRACT.
B. DEFINITIONS
1.THE CONTRACT - The Contract consists of the
documents identified at Article I of the Contract.
The Contract represents the entire and integrated
agreement between the Parties and supersedes all
prior negotiations, representations or agreements,
either written or oral, including, to the extent
inconsistent, the Bid Documents.
2. THE CONTRACT DOCUMENTS - The Contract Documents
consist of all the written documents annexed to and
made a part of the Contract referred to in Article 1
of the Contract, and other documents specifically
referred to in the Contract as constituting the
Contract Documents, including without limitation:
these General Conditions and Requirements, the
Drawings, the Specifications, the Pre-Contract
Memorandum, the Instruction to Bidders and other Bid
Documents, all Addenda, the Scope of Work Form and
all Modifications by Supplemental Agreement. A
Modification or Supplemental Agreement is (I) a
written addendum or amendment to the Contract signed
by both Parties; or (2) a Back charge or Change
Order.
3. THE WORK - The term "Work" means the construction and
services required by the Contract Documents, and
includes all labor, materials, equipment,
coordination, supervision and services provided or to
be provided by the Contractor to fulfill the
Contractor's obligations under the Contract. All Work
shall be completed of the highest quality, in a good
and workmanlike manner, using only first-class new
materials free of all liens and encumbrances.
4. THE PROJECT - The Project is the total construction
developed or owned by EklecCo of which the Work
performed under the Contract and Contract Documents
may be the whole or a part.
C. EXECUTION, CORRELATION, INTENT AND INTERPRETATIONS
1. The Contract Documents shall be signed in not less than
triplicate by EklecCo and the Contractor.
2. By executing the Contract, the Contractor represents
that the Contractor has visited the Site,
familiarized itself with the local and site
conditions under which the Work is to be performed,
and correlated its observations with the requirements
of the Contract Documents.
<PAGE>
3. The Contract Documents are complementary. and what
is required by any one shall be as binding as if
required by all. The intention of the Contract
Documents is to include all labor, materials,
equipment, services and other items necessary for
the proper execution and completion of the Work. It
is intended that work not covered under any heading,
section, branch, class or trade of the
Specifications nonetheless shall be supplied unless
it is omitted elsewhere in the Contract Documents,
or it is reasonably inferable therefrom as being
unnecessary to produce the results intended by
EklecCo.
4. The organization of the Specifications into
divisions, sections, and articles, and the
arrangements of Drawings shall not control the
Contractor in dividing the Work among
Sub-Contractors or in establishing the timing or
extent of Work to be performed by any trade.
5. Words which have well-known technical or trade meanings
are used herein in accordance with such recognized meanings.
6. Written interpretations necessary for the proper
execution or progress of the Work, in the form of
drawings or otherwise, will by issued by EklecCo or
its Agent, architects and engineers, and once
issued, shall become part of the Contract
Documents.
7. Figured dimensions will take precedence over scale
dimensions. Details shall take precedence over
scale drawings. All dimensions shall be field
verified by the Contractor whenever possible prior
to the commencement of work. The Contractor shall
immediately report all conflicts and discrepancies
in writing to EklecCo.
8. In the case of an inconsistency or other
circumstance giving rise to interpretation between
Drawings and Specifications or within any Contract
Document not clarified by addendum, the better
quality or greater quantity of Work Shall be
provided by Contractor in accordance with EklecCo'
interpretation at no additional cost to EklecCo.
D. COPIES FURNISHED AND OWNERSHIP
1. All Drawings, Specifications and copies thereof
furnished by EklecCo are, and shall remain its
property. No part or the whole of any such Drawings
and Specifications are to be used on any other
project, and, with the exception of one contract set
for each party to the Contract, any such documents
are to be returned to EklecCo on request at the
completion of the Work.
ARTICLE 2- OWNER
A. DEFINITIONS
I. The term Owner means EklecCo, or its authorized
representative, irrespective of any title or
designation given EklecCo in any contract between
EklecCo and a third party.
<PAGE>
2. The term EklecCo is the partnership formerly known as
Pyramid Company of Rockland or its Agent, Thomas J. Valenti.
B. INFORMATION TO BE PROVIDED TO CONTRACTOR
1. EklecCo will furnish surveys describing the physical
characteristics and legal limits for the Site of the Project.
2. The Contractor will be furnished one copy of
Drawings and Project Manuals for a non-refundable
fee. Additional sets will be furnished at the same
rate.
C. ADMINISTRATTON OF CONTRACT
1. EklecCo will provide general administration of the
Contract; Contractor is responsible for
administration of the Work. EklecCo is not, and will
not act in the capacity of a general contractor,
contractor or construction manager, unless, at its
sole option, it is required to do so by the breach
or default of Contractor. However, EklecCo shall
have no obligation to so act as a general
contractor, contractor or construction manager, and
under no circumstances shall any liability attach to
EklecCo for so acting, nor shall EklecCo's so acting
relieve Contractor of any of its rights hereunder.
2. EklecCo shall at all times have access to the Work
wherever it is in preparation and progress. The
Contractor shall provide adequate facilities for such
access.
3. EklecCo may make periodic visits to the Site to
familiarize itself generally with the progress and
quality of the Work and to determine in general if
the Work is proceeding in accordance with the
Contract Documents. Such visits shall not in any way
relieve Contractor from Contractor's sole and
independent obligation to assure the progress and
quality of its Work, and Contractor's coordination of
its Work with others.
4. Based on observations, and any other information
EklecCo deems appropriate, together with the
Contractor's Requisition for Payment, EklecCo shall
determine the amounts owing to the Contractor
consistent with the Contract Documents, subject at
all times to its Lender's approval.
ARTICLE 3- CONTRACTOR
A. DEFINITIONS
I. The term Contractor means the person, entity or
organization identified as such in the Contract and
is referred to throughout the Contract Documents as
if singular in number. The term Contractor means the
Contractor or its authorized representative.
<PAGE>
B. REVIEW OF CONTRACT DOCUMENTS
1. The Contractor shall carefully study and compare the
Contract Documents and any Supplementary Agreement, and
shall, prior to execution, report in writing to EklecCo any
error, misstatement, inconsistency or omission in any
Contract Documents. The failure of Contractor to make such
written report shall constitute a waiver of Contractor1s
right to claim such as an error, inconsistency, omission or
misstatement in the Contract Documents or Supplementary
Agreements.
2 If the Contractor performs any construction activity knowing
it involves an error, inconsistency or omission in or from the
Contract Documents, the Contractor shall assume responsibility
for such performance and shall bear all costs for correction,
and such performance shall constitute a waiver of any claim by
Contractor against EklecCo, arising from such error,
inconsistency or omission.
3. The Contractor shall take all necessary and appropriate field
measurements and observe and identify all conditions and other
information and make them, together with the Contract
Documents, known to and understood by its construction
manager, together with the Contract Documents before
commencing activities.
C. SUPERVISION AND CONSTRUCTION PROCEDURES
1. Contractor shall organize, supervise, coordinate and direct the
Work, using its best skill and attention.
Contractor shall be solely responsible for all construction
means, methods, techniques, sequences, phasing, coordination
and procedures, and for coordinating and protecting all
portions of the Work under the Contract.
2. In relation to EklecCo, Contractor shall not be relieved of
its obligations to perform the Work in accordance with the
Contract Documents, either by activities or duties of the
Architect, Engineer or by tests, inspections or approvals
required or performed by persons other than the Contractor,
even if hired or paid for by EklecCo.
3. The Contractor shall be responsible for inspection of
portions of the Work of other contractors as well as the
Contractor's own Work already performed to determine that
such other contractor's portions are in proper condition to
receive subsequent Work, independently of any other
inspections which may be applicable to Contractor's Work.
D. LABOR AND MATERIALS
I. Unless otherwise specifically noted, the Contractor shall provide and
pay for all labor, materials, equipment, tools, construction equipment and
machinery, water, heat, utilities, transportation, and other facilities and
services necessary for the proper and timely execution and completion of the
Work.
2. The Contractor shall use whatever materials are available which can be
pre-fabricated provided such fabrication is consistent with the quality
requirements of the specifications.
<PAGE>
EklecCo
3. The Contractor shall, at all times, enforce strict discipline, safety,
cleanliness, proper conduct and good order among its employees, representatives,
consultants, Sub-Contractors and Vendors, and shall not employ on the Project or
for the Work any unfit person or entity or anyone unskilled in the task assigned
to that person or entity.
4. The Contractor shall advise EklecCo of the source from which its labor
will be obtained. If labor is obtained by the Contractor pursuant to a
collective bargaining agreement, the Contractor shall provide a copy of such
agreement to EklecCo before the commencement of the Work at the Project.
Contractor shall not assign or subcontract any portion of the Work without first
notifying EklecCo and recovering EklecCo's written approval.
5. Whenever the Contractor shall have a cause of action in a labor dispute
against a labor organization for injunctive relief in the state or federal
court, the Contractor shall have the duty to proceed forthwith to obtain such
relief.
6. Within twenty (20) days after the Contract has been executed, Contractor
shall submit to EklecCo three (3) copies of a complete list of major products or
materials proposed for installation, tabulated by specification section number
and title, listing the following information:
a. Name and address of manufacturer/supplier
b. Trade name
c. Model and catalog number
d. Manufacturer's data, including reference standards and performance test
data.
7 EklecCo will consider only a formal written request for the substitution
of products in place of those products specified (the "Specified").
8. By making a request for substitution of material, equipment or labor
(the "Proposed Substitute"), the Contractor shall make such request in writing,
separately for each such substitution and shall:
a) represent that the Contractor has personally investigated the Proposed
Substitute and determined that it is equal or superior in all respects to that
Specified;
b) represent that the Contractor will provide the same warranty for the
Proposed Substitute that the Contractor would for that Specified;
c) certify that the cost data presented is complete and includes all
related costs under this Contract;
d) coordinate the installation of the Proposed Substitute, as accepted by
EklecCo and Tenant, making such changes at Contractor's sole cost and expense as
may be required for the Work to be complete in all respects according to
schedule duration and completion;
e) represent that the Proposed Substitute complies with all architectural,
engineering and local, state and federal requirements, rules, laws and
regulations;
<PAGE>
f) provide a list of all effects of substitution on this Contract or other
contracts; and
g) designate, as appropriate, availability of replacement, maintenance or
repair.
E. WARRANTY
1. The Contractor warrants to EklecCo that all material and equipment
furnished under this Contract will be new unless otherwise specified, and that
all Work will be of good and workmanlike quality, free from faults and defects,
fit for its intended purposes and in conformity with the Contract Documents. All
Work not so conforming to all these standards may be considered by EklecCo as
defective. If required by EklecCo, the Contractor shall furnish satisfactory
evidence as to the kind and quality of materials and equipment.
2. If required by EklecCo, Contractor shall provide a Warranty Bond at the
time of acceptance of Contractor's Work, which Warranty Bond shall be at
Contractor's expense, and contain, without limitation, a provision that
attorney's fees due EklecCo as obligee under the Bond are included in the Bond
coverage.
F. SALES AND USE TAX
I. The Contractor shall pay sales, consumer, use and similar taxes for the
Work or any portions thereof provided by the Contractor which are legally,
enacted when bids are received or negotiations concluded, whether or not yet
effective or merely scheduled to go into effect.
G. PERMITS. FEES AND NOTICES
I. The Contractor shall timely secure and pay all permits, governmental
fees and licenses necessary for the proper execution and completion of the Work,
which are specified as Contractor's responsibility and applicable at the time
the bids are received or negotiations concluded.
2. The Contractor shall give all notices and comply with all laws,
ordinances, rules, regulations and orders of any governmental or public
authority bearing on the performance of the Work. If the Contractor observes
that any of the Contract Documents pertaining to the Work are at variance
therewith in any respect, it shall promptly notify EklecCo in writing, and any
necessary changes shall be adjusted by appropriate Modification, at Contractor's
sole cost and expense. If the Contractor performs the Work or any activity which
is contrary to such laws, ordinances, rules and regulations, Contractor shall
assume full responsibility therefore and shall bear all costs attributable
thereto, including indemnification of EklecCo pursuant to the Contract.
3. The Contractor shall provide all Notices and Samples required by the
Contract Documents in a timely manner, best calculated to provide actual
information and Notice to EklecCo.
4. The Contractor shall notify EklecCo five (5) days prior to achieving any
construction milestones.
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5. Contractor shall notify EklecCo testing agency at least 72 hours prior
to placing of concrete to allow for inspection. Nothing contained herein shall
relieve Contractor from its sole responsibility for engineering and construction
of framework.
H. SUPERINTENDENT
1. The Contractor shall employ a competent, experienced and responsible
Superintendent and necessary assistants who shall be at the Project Site at all
times during the progress of the Work. The Superintendent shall represent the
Contractor and all communications given to or received from the Superintendent
shall be as binding as if communicated with Contractor. The Superintendent shall
be knowledgeable of all phases of the Contract and the Work and requirements
thereof.
2. The Superintendent shall carry a portable phone at all times and shall
be available to address questions or emergencies at the Site, 24 hours a day,
seven days a week for the duration of the Project.
I. RESPONSIBILITY FOR THOSE PERFORMING THE WORK
1. The Contractor shall be fully responsible for the acts and omissions of
all its employees and all its Consultants, Sub-Contractors and Vendors, their
agents and employees, and all other persons performing any of the Work under
agreement or contract with the Contractor.
J. PROGRESS SCHEDULE
1. Within 48 hours after being awarded the Work, Contractor shall submit a
detailed progress schedule ("Progress Schedule") for the Work for EklecCo's
approval. The Progress Schedule shall be related to the entire Project to the
extent required by the Contract Documents. The Project Schedule shall indicate
sequencing and the dates for the starting and completion of the various stages
of construction and shall be revised by Contractor as required by the conditions
of the Work subject to EklecCo approval, and consistent with the Contract.
Nothing contained herein shall change the actual start and completion dates for
all of the Work contained in Article 3 of the Contract. Failure to provide such
Progress Schedule at any stage shall relieve EklecCo of any responsibility for a
delay claim by Contractor, in addition to any other remedy otherwise available
to EklecCo.
2. The Contractor shall participate in all schedule and job meetings as
directed by EklecCo.
3. The Contractor shall prepare and keep current a schedule of submittals,
for EklecCo's approval, which is coordinated with the Contractor's construction
schedule and allows EklecCo reasonable time to review submittals.
4. The Contractor shall conform to the most recent written schedules for
the Project.
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5. Unless otherwise specified in the Contract Documents, a normal work day
shall be considered twelve (12) hours a day, with work commencing at 6:00 A.NI.
and ending at 6.00 P.M.; six (6) days a week. Unless otherwise specified in the
Contract, only work necessary to complete the schedule beyond the Contractor's
Scope of Work Lump Sum Contract Price, may result in Contractor's request for a
Change Order, pursuant to Section 4.2.1 of the Contract.
K. DRAWINGS AND SPECIFICATIONS AT THE SITE
1. The Contractor shall maintain at the Site for EklecCo's benefit, one
copy of all Drawings, Specifications, Addenda, approved Shop Drawings, Change
Orders and other Modifications, in good order and marked to record all changes
made during performance of the Work.
2. Upon completion of the Work, As-Built Drawings in a form and content
approved by EklecCo, shall be delivered by the Contractor to EklecCo. By
submitting the "As-Built" Drawings, Contractor certifies and represents that the
Work was built as shown on the drawings. This submission shall be a condition to
EklecCo's making Final Payment.
3. EklecCo may require that the Contractor secure EklecCo's approval of the
current status of the Project Record Documents prior to submitting each request
for progress payment, at the 30%, 60% and 90% steps of Contract completion.
L. SHOP DRAWINGS. SUBMITTALS AND SAMPLES
1. Shop Drawings are drawings, diagrams, illustrations, schedules,
performance charts, brochures and other documents which are prepared by the
Contractor or any Sub-Contractor, manufacturer, supplier or distributor, and
which illustrate some portion of the Work.
2. Product Data are illustrations, standard schedules, performance charts,
instructions, brochures, diagrams and other information furnished by the
Contractor to illustrate materials or equipment for some portion of the Work.
3. Samples are physical examples furnished by the Contractor to illustrate
materials, equipment or workmanship and to establish standards by which the Work
will be judged by EklecCo.
4. The Contractor shall review, stamp with its approval and submit with
reasonable promptness and in orderly sequence, all Shop Drawings, Product Data
and Samples required by the Contract Documents or by EklecCo so as to cause no
delay in the Work or in the work of any other contractor. Shop Drawings, Product
Data and Samples shall be properly identified as specified, or as EklecCo may
require. At the time of submission, the Contractor shall inform EklecCo in
writing of any deviation in the Shop Drawings or Samples form the requirements
of the Contract Documents.
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EklecCo
5. By approving and submitting Shop Drawings, Product Data and Samples, the
Contractor thereby represents that it has determined and verified all field
measurements, field construction criteria, materials, catalog numbers and
similar data, or w ill do so, and that it has checked, coordinated and conformed
each submittal with the requirements of the Work and of the Contract Documents.
6. The Contractor shall direct specific attention in writing or on
resubmitted Shop Drawings to revisions other than the correction requested by
EklecCo or its architects or engineers on previous submissions.
7. Approval of Shop Drawings, Product Data or Samples by EklecCo or its
Agent shall not relieve Contractor of responsibility for any deviation from the
requirements of the Contract Documents unless Contractor has informed EklecCo in
writing of such deviation at the time of submission and EklecCo has given
written approval to the specific deviation. In no event shall such approval by
EklecCo relieve Contractor from responsibility for errors or omissions in the
Submittals.
8. No portion of the Work requiring a Shop Drawing, Product Data or Sample
submission shall be commenced until the submission has been approved by EklecCo
and Tenant's Appropriate Consultant. All such portions of the Work shall be in
accordance with approved Shop Drawings, Product Data and Samples.
M. USE OF SITE
1. The Contractor shall confine operations at the Site to areas permitted
by law, ordinances, permits, the direction of EklecCo and the Contract Documents
and shall not unreasonably encumber the Site with materials or equipment, or
interfere with access to or use of the Site by others.
2. Upon reasonable Notice from EklecCo, or reasonable request from another
Contractor due to staging or sequencing requirements, Contractor shall move or
relocate materials or equipment as directed, at no cost to EklecCo.
N. CUTTING AND PATCHING WORK
1. The Contractor shall do all cutting, fitting or patching of its Work
that may be required to make its several parts fit together properly and shall
not endanger any Work by cutting, excavating or otherwise altering the Work or
any part of it, unless specifically noted otherwise.
O. CLEANING UP
1. On a daily basis, Contractor shall keep the areas affected by its Work,
and the Work, free from accumulation of waste materials or rubbish caused by its
operations. Throughout its Work and at the completion of the Work, Contractor
shall remove all its waste materials and rubbish from and about the Project as
well as all its tools, construction equipment, machinery and surplus materials,
and shall clean all glass surfaces and leave the Work "broom clean" or its
equivalent, except as otherwise specified. The failure of Contractor to comply
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with this condition shall entitle EklecCo to arrange for such clean up and
rubbish removal services as EklecCo in its sole discretion deems necessary, and
to Back Charge Contractor for the actual or apportioned costs of same, plus all
applicable administrative charges.
P. ACCESS TO WORK
1. The Contractor shall provide EklecCo access to the Work in preparation
and progress wherever located, at all times.
Q. ROYALTIES AND PAYMENTS
1. The Contractor shall pay all royalties and license fees. Contractor
shall defend all suits and claims for infringement of any patent rights and
shall save EklecCo harmless from all loss on account thereof including
reasonable attorneys fees and litigation expenses, except that EklecCo shall be
responsible for all such loss when a particular design, process or the product
of a particular manufacturer or manufacturers is specified, but if the
Contractor has reason to believe that the design, process or product specified
is an infringement of a patent, the Contractor shall be responsible for such
loss unless it promptly gives such information to EklecCo.
ARTICLE-4 SUB-CONTRACTORS
A. DEFINITION
I.A Sub-Contractor is a person or organization who has a direct or indirect
agreement or contract with a Contractor to perform any of the Work at the Site
and includes, where appropriate, Vendors. The term "SubContractor" is referred
to throughout the contract Documents as if singular in number and means a
SubContractor or any authorized representative thereof. All subcontractors must
appear on a list submitted by Contractor pursuant to Section B4 below.
2. Nothing contained in the Contract Documents shall create any contractual
relation between EklecCo and any Sub-Contractor.
B. AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK
1. Unless otherwise specified in the Contract Documents or in the bidding
requirements, the Contractor shall furnish in writing to EklecCo with its bid,
and update not later than 10 days after Notice of Award, the following: (a) a
list of the principal portions of the Work and the names of persons or entities
responsible for
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each one; (b) the names of persons or entities proposed as manufacturers
for each of the products identified in the Scope of Work, and, where applicable,
the name of the installing Sub-Contractor; (c) a Sub-Contractor/Vendor
Evaluation Sheet for each Sub-Contractor or Vendor listed by Contractor pursuant
to this paragraph, and EklecCo shall promptly notify the Contractor if EklecCo
has reasonable objections to any Sub-Contractor or Supplier on such list; (d) a
copy of each contract with each Sub-Contractor or Supplier, or an abstract of
the terms of such contracts.
2. The Contractor shall not contract with any Sub-Contractor, Vendor or any
person or organization (including those who are to furnish materials or
equipment fabricated to a special design) proposed for any portions of the Work
designated in the Contract Documents, who has been rejected by EklecCo or
Tenant. The Contractor will not be required to contract with any Sub-Contractor
or person or organization against whom it has a reasonable objection.
3. If in its sole judgment and discretion, EklecCo a Tenant or municipality
or governing body having jurisdiction over work refuses to accept any
Sub-Contractor, Vendor or person or organization on a list submitted by the
Contractor in response to the requirements of the Contract Documents, the
Contractor shall submit an acceptable substitute within three (3) business days.
4. The Contractor shall not make any substitution for any Sub-Contractor or
person or organization who has been accepted by EklecCo unless the substitution
is accepted in advance in writing by EklecCo.
5. Contractor shall not enter into any Subcontract the terms of which are
in conflict with the Contract and Contract Documents. Contractor shall make a
part of its contracts or Purchase Orders with Sub-Contractors and Vendors
respectively, all such terms and requirements as are necessary to make such
sub-contracts and Purchase Orders in compliance with the Contract Documents, and
to promote the timely, efficient and effective goals of the Contract Documents.
6. Nothing in this section shall be interpreted or construed to create any
obligation of EklecCo to any Sub-Contractor, potential Sub-Contractor, Vendor or
Supplier, except as provided under the statutory and common law of the State of
New York.
C. SUBCONTRACTUAL RELATIONS
I. All work performed for the Contractor by a Sub-Contractor shall be
pursuant to an appropriate written agreement between the Contractor and the
Sub-Contractor (and where appropriate between Sub-Contractor and
Sub-sub-contractors) which shall, at a minimum, contain provisions that:
a. Preserve and protect the rights of EklecCo under the Contract with
respect to the Work to be performed under the subcontract so that the
subcontracting thereof will not prejudice such rights; and
b. Require that such Work be performed in accordance with the requirements
of the Contract Documents; and
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c. Require submission to the Contractor of applications for payments under
each subcontract to which the Contractor is a party in proper form and within a
reasonable time to enable the Contractor to apply for payment and which comply
with EklecCo's payment terms; and
d. Contain a waiver all rights the contracting parties may have against one
another for damages caused by fire or other perils covered by the property
insurance, except such rights as they may have to the proceeds of such insurance
held by EklecCo as trustee; and
e. Require as a condition of each payment, submission of a "Payment Receipt
and Waiver of Right to File Lien" to the Contractor in the format required by
EklecCo; and
f. Contain all such provisions as are required for compliance by Contractor
with the Contract, EklecCo's Construction or Permanent Loan Agreement, other
contractor's contracts, any contract with the Town of Clarkstown, State of New
York, The United States, any lender and any Contract between EklecCo and Tenant.
ARTICLE 5- SEPARATE CONTRACTS
A. OWNER'S RIGHT TO AWARD SEPARATE CONTRACTS
I. EklecCo reserves the right to award separate contracts in connection
with separate portions of the Project under these or similar Conditions of the
Contract. This has been carefully considered by the Contractor in formulating
and submitting its bid to EklecCo.
2. When separate contracts are awarded for different portions of the
Project, the "Contractor" in the Contract Documents in each case shall be the
Contractor who signs each separate contract.
B. RESPONSIBILITY AMONG CONTRACTORS
1. The Contractor shall afford other contractors reasonable opportunity for
the introduction and storage of their materials and equipment and the execution
of their work and shall properly connect and coordinate its Work with theirs.
2. The Contractor shall inspect and promptly report to EklecCo any apparent
discrepancies or defects in such work by other contractors that render it
unsuitable for such proper execution and results. Failure of the Contractor to
inspect and report shall constitute acceptance of the other contractor's work as
fit and proper to receive the Contractor's Work, except as to defects which may
develop in the other contractor's work after the execution of the Contractor's
Work, in which case, Contractor shall be responsible to settle any dispute
between it and any such other contractor.
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EklecCo
3. The Contractor shall promptly remedy any damage to the Work, or work
area of others, caused by the Contractor, to be completed prior to construction
by other contractors. All such remedial work shall be considered as part of the
Contract Work.
4. If another contractor brings a claim against EklecCo, on account of any
costs or damages alleged to have been sustained by such other contractor to its
work or by delay in the availability or access to its work area, by reason of
the act, omission or conduct of Contractor, EklecCo shall notify the Contractor,
who shall defend such proceedings at the Contractor's sole expense, and if any
judgment or award against EklecCo arises therefrom, the Contractor shall
indemnify and hold EklecCo, its partners, agents, representatives and employees,
harmless and shall promptly pay or satisfy any judgment or award, and shall
reimburse EklecCo for all reasonable litigation costs and attorney's fees which
EklecCo has incurred.
ARTICLE 6- PAYVIENTS AND COMPLETION
A. SCHEDULE OF VALUES
1. Before the Contractor commences the Work, Contractor shall submit to
EklecCo a Schedule of Values of the various portions of the Work, including
quantities, aggregating the total consideration, fairly divided so as to
facilitate payments to Contractor, prepared in such form as acceptable by
EklecCo, and supported by such data to substantiate its correctness as EklecCo
may require. Each item in the Schedule of Values shall include Contractor's
proper share of applicable taxes, overhead and profit. This schedule, when
approved by EklecCo, shall be used as a basis for the Contractor's Requisition
for Payment, but may not be used by Contractor for any other purpose.
B. SUBSTANTIAL COMPLETION
1. Substantial Completion is the stage in the progress of the Work when the
Work or designated portion thereof is sufficiently complete in accordance with
the Contract Documents so EklecCo can occupy or utilize the Work for its
intended use, and EklecCo can obtain a certificate of occupancy or other local
approval for the Work, if appropriate.
2. When the Contractor considers that the Work, or a portion thereof is
substantially complete, EklecCo shall prepare and submit to Contractor, prior to
EklecCo's acceptance, a comprehensive list (the "Punch List") of items to be
completed or corrected. The Contractor shall proceed promptly to complete and
correct items on the Punch List. Failure to include an item on the Punch List
does not alter the responsibility of the Contractor to complete all Work in
accordance with Contract Documents.
3. Upon receipt of the Contractor's Punch List, EklecCo and/or the
municipality or governing body having jurisdiction over the Work will make an
inspection to determine whether the Work or designated portion thereof is
substantially complete. If EklecCo's inspection discloses any item, whether or
not included on the Contractor's Punch List, which is not in accordance with the
requirements of the Contract Documents, the
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EklecCo
Contractor shall complete or correct each such item. The Contractor shall
then submit a request for another inspection by EklecCo to determine Substantial
Completion.
C. FINAL COMPLETION AND FINAL PAYMENT
I. Upon receipt of Contractor's written Notice that the Work is ready for
final inspection and final acceptance, EklecCo, and such others as may be
designated by a Tenant or Lender, will make such inspection.
2. Neither Final Payment, nor any remaining retained percentage, shall
become due until the Contractor submits to EklecCo the following:
a. An affidavit or certificate that payrolls, bills for materials and
equipment and other indebtedness connected with the Work have been paid or
otherwise satisfied, including but not limited to "Payment Receipt and Waiver of
Right to File Lien" from Sub-Contractors and suppliers, other releases or
waivers of liens and claims, and releases of security interest or encumbrances
arising out of the Contract, together with an executed agreement whereby
Contractor indemnifies and holds harmless EklecCo and from any claim or matter
which might arise from a breach of Contractor's representation of payment
described herein, to the extent and in such form as may be designated by
EklecCo;
b. A one-year guarantee or warranty of the Work which runs from midnight of
the day upon which all the Work was finally accepted;
c. All guarantees, warranties and service manuals for equipment installed,
in a form approved by EklecCo;
d. Project Record or "As-Built" drawings approved by EklecCo and Tenant;
and
e. Final acceptance of the Work by the Owner, Construction Lender and
Tenant, as applicable.
ARTICLE 7- PROTECTION OF PERSONS AND PROPERTY
A. SAFETY OF PERSONS AND PROPERTY
1. The Contractor shall take all reasonable precautions for the safety of,
and shall provide all reasonable protection to prevent damage, injury or loss
to:
(a) all employees of the Contractor or who are performing the Work, and all
other persons who may be affected thereby; and
(b) all the Work and all materials and equipment to be incorporated
therein, whether in storage on or off the Site, under the care, custody or
control of the Contractor or any of its Sub-Contractors; and
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EklecCo
(c) other property at the Site or adjacent thereto, including trees,
shrubs, lawns, walks, pavements, roadways, structures and utilities not
designated for removal, relocation or replacement in the course of construction.
2. Contractor shall comply with all applicable laws, ordinances, rules,
regulations and lawful orders of any public authority having jurisdiction for
the health and safety of the public, persons or property or to protect the
public, persons or property from damage, injury or loss. Contractor shall erect
and maintain, as required by existing conditions and progress of the Work, all
necessary safeguards for health, safety and protection, including the erection
and maintenance of barriers and the posting and maintenance of danger signs and
other warnings against hazards, as promulgating safety regulations and notifying
owners and users of adjacent utilities.
3. When the use or storage of explosives or other hazardous materials or
equipment is necessary for the execution of the Work, the Contractor shall
exercise the utmost care and shall carry on such activities under the
supervision of properly qualified personnel, and in compliance with all laws,
rules and regulations;
4. All damage or loss to any property referred to in Article 7 A-I (b)
above, shall be remedied by the Contractor. All damage or loss to any property
referred to in Article 7A-l (c) above, caused by the Contractor, its employees
or agents shall be remedied by the Contractor, at Contractor's cost and expense.
5. Contractor shall designate a responsible member of its organization at
the Site whose duty shall be the prevention of accidents. This person shall be
the Contractor's superintendent unless otherwise designated in writing to
EklecCo by the Contractor.
6. Contractor shall not load or permit any part of the Work to be loaded so
as to endanger its safety.
7. Contractor shall be responsible for identifying and giving EklecCo, in
writing, Notice of any safety hazards immediately upon discovery.
B. FIRE PROTECTION
1. Contractor is to develop and follow a fire fighting program through out
all phases of any construction and demolition Work involved. The program shall
provide for Contractor to maintain at the Site of the Work effective fire
fighting equipment (the "Fire Fighting Equipment") Sufficient to meet all fire
hazards related to the Work as they occur.
2. The Fire Fighting Equipment shall be conspicuously located and readily
accessible at all times, and be maintained in operating condition. The Fire
Fighting Equipment shall include, but is not limited to, a fire extinguisher of
a type suitable for extinguishing all types of fire that may ignite from the
combustible materials and equipment in the Contractor's scope of Work.
C. EMERGENCIES
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1. In any emergency affecting the safety of persons or properly, Contractor
shall act, using its discretion reasonably applied, to prevent threatened
damage, injury or loss.
ARTICLE 8- INSURANCE
A. CONTRACTOR'S LIABILITY INSURANCE
1. Original Certificates of lnsurance, in accordance with the requirements
of the Contract Documents, acceptable to EklecCo shall be filed with EklecCo
prior to commencement of the Work. These certificates shall contain a provision
that coverages afforded under the policies will not be canceled until at least
forty-five (45) days after written Notice has been given to EklecCo. Where
required by Tenant or Lender, Tenant and/or Lender shall be named as an
Additional Named Insured. In addition, where required by Tenant or Lender,
Contractor shall purchase and keep in force, Contractor's Liability Insurance in
Contractor's name insuring any of Contractor's Indemnification obligations to
EklecCo under the Contract.
2. In the event Contractor shall fail to obtain or maintain any Insurance
required by the Contract, EklecCo shall have the right, but not the obligation,
without notice immediately to purchase such Insurance, all of the costs of which
shall be reimbursed to EklecCo by Contractor either directly, or through
non-contestable Back charge, at EklecCo's option.
ARTICLE 9- UNCOVERING AND CORRECTION OF WORK
A. UNCOVERING THE WORK
1. If any Work should be covered by Contractor ("Covered Work"), (or by
another as a result of Contractors direction, acts or omissions) prior to any
necessary inspection, including an inspection by EklecCo, or any building
inspector having appropriate jurisdiction, Contractor must, if required by
EklecCo or such inspector, uncover the Covered Work for inspection, and recover
it at the Contractor's sole expense, without Modification Agreement, and, if at
all possible, without change in Contract duration or schedule.
B. CORRECTION OF WORK
1. Contractor shall promptly correct all Work rejected by EklecCo, Tenant
or Lender as defective or as failing to conform to the Contract Documents.
Contractor shall bear all cost of correcting such rejected Work,
<PAGE>
including the cost of the architect's, engineer's, consultant's EklecCo's
additional services thereby made necessary.
2. If, within one year after the Date of Final Completion and Acceptance by
EklecCo or within such longer period of time as may be prescribed by law or by
the terms of any applicable conditions required by the Contract Documents, any
of the Work is found to be defective or not in accordance with the Contract
Documents, Contractor shall correct it promptly after receipt of a written
notice from EklecCo to do so, unless EklecCo has previously given Contractor a
specific written acceptance of such condition of defect or non-compliance.
3. All defective or non-conforming Work shall be removed from the Site if
necessary and the Work shall be corrected to comply with the Contract Documents
without cost to EklecCo. The Contractor shall bear the cost of making good all
work, including work of others destroyed or damaged as a result of such removal
or correction.
4. If Contractor fails to remove and correct such defective or
non-conforming work, EklecCo may remove and correct it, at the Contractor's
expense, pursuant to the Contract Documents.
C. ACCEPTANCE OF DEFECTIVE OR NON-CONFORMING WORK
1. If EklecCo prefers to accept defective or non-conforming work, it may do
so instead of requiring removal and correction, in which case a Change Order
will be issued to reflect an appropriate reduction in the Contract Sum, or, if
the amount is determined after final payment, it shall be paid promptly by
Contractor.
ARTICLE 10-PERFORMANCE BOND
A. Contractor shall indicate that it can furnish bonds covering the
faithful performance of the Contract and the payment of all obligations arising
thereunder, including performance of its Work, payment of its bills. removal of
liens and warranty of work, if; and as required in the Contract Documents.
ARTICLE 11 -TESTS
A. If the Contract Documents, or any applicable laws, ordinances, rules,
regulations, orders or permit or approval conditions of any public authority
having jurisdiction require any Work to be inspected, tested or approved,
Contractor shall give EklecCo and such public authority timely notice of
readiness and of the date arranged, so EklecCo and such public authority may
make such inspection, testing or approval. Unless the Contract Documents
specifically provide otherwise, Contractor shall bear all costs of such
inspections, tests and approvals, and any Work necessary after inspection, to
gain any required approvals.
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B. If EklecCo reasonably determines that any Work requires special
inspection, testing, or approvals which Article II, Subparagraph A above does
not include, EklecCo will instruct Contractor to order such special inspection,
testing or approval. If such special inspection or testing reveals a failure of
the Work to comply (I) with the requirements of the Contract Documents or (2)
with any applicable laws, ordinances, rules, regulations, orders or permit or
approval conditions of any public authority having jurisdiction, Contractor
shall bear all costs thereof; including any architect's, engineer's,
consultant's or agent's additional services made necessary by such failure. If
such special testing or inspection reveals that the Work complies with the
Contract and applicable laws, EklecCo shall bear all costs thereof.
C. Contractor shall timely provide to EklecCo all certificates of
inspection and testing pursuant to its Scope of Work, based upon inspection of
the Work; inspection to be done by others. EklecCo shall provide inspection and
testing services, as outlined in Section 2.10 of this Contract.
D. Neither an inspection, nor observations by EklecCo of inspections, tests
or approvals by Contractor or any other persons shall relieve Contractor from
its obligations to perform the Work in accordance with the Contract Documents.
E. Contractor shall indemnify, defend and hold harmless EklecCo and its
agents, employees, partners, representatives. successors, attorneys, insurers
and assigns from any and all claim, causes of action, cross claims,
counterclaims, third-party actions or matters, whether in law or in equity,
arising from or relating to EklecCo's usage or reliance upon tests or documents
required and secured under this section.
ARTICLE 12- PROJECT MEETINGS
A. GENERAL PROVISIONS
1. PURPOSE
To provide a forum for the Contractors on the Project to have an orderly
daily review during progress of the Work, for systematic discussion of
coordination, scheduling and details. EklecCo will require Contractors
participation at project meetings throughout the construction period, to meet
their contractual obligations and to take all necessary action to keep the Work,
the Project and Site operating smoothly and efficiently, without delay or
interruption, during construction of the Project.
2. For those persons designated by the Contractor to attend and participate
in project meetings. Contractor shall provide required authority to commit the
Contractor to solutions agreed upon in the project meetings.
B. EXECUTION
1. MEETING SCHEDULE
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a. Project meetings will be held daily at 6:30 a.m. or at such other or
additional time as designated by EklecCo.
b. Contractor will be subject to a fine of S200 for each missed meeting.
2. MEETING LOCATION
a. EklecCo will establish a meeting location. To the maximum extent
practicable, meetings will be held on the job site, at a location to be
determined by EklecCo.
3. PROJECT MEETINGS
a. Attendance
i. Contractor's Superintendent is required to attend each and every
meeting.
ii. To the maximum extent practicable, Contractor will assign the same
person or persons to represent the Contractor at project meetings throughout
progress of the Work. Whoever is assigned is expected to be sufficiently
knowledgeable and experienced to provide meaningful participation.
iii. Subcontractors, materials suppliers, and others may be invited to
attend those project meetings in which their aspect of the Work is involved.
b. Typical agenda
i. Contractors' Review progress of the Work since last meeting, including
status of submittals for approval.
ii. Contractors' Review coordination of work with other trades.
iii. Contractors' Review schedules.
iv. Contractors' Identify problems which impede planned progress.
v Contractors' Develop corrective measures and procedures to regain planned
schedule.
vi. Contractors' Review quality issues
vii. Contractors' Review safety issues
viii. Complete other current business.
c. EklecCo's participation in Project meetings
1. EklecCo may, but need not have a representative attend Project meetings.
Such attendance at a Project meeting by a EklecCo representative shall be for
informational purposes only unless intervention by EklecCo is required pursuant
to the terms of the Contract.
<PAGE>
ARTICLE 13- SUBNTITTALS AND SUBSTITUTIONS
A. GENERAL
1. DESCRIPTION
a. Work included: Create submittals required by the Contract Documents, and
revise and resubmit as necessary to establish compliance with the specified
requirements.
b. Related Work:
i. Documents affecting work of this Article include, but are not
necessarily limited to, the General Conditions, Supplementary Conditions, and
Division I of these Specifications.
ii. Individual requirements for submittals also may be described in
pertinent Articles of the Specifications.
iii. Contractor must submit Material Safety Data Sheets (MSDS) for all
potentially hazardous chemicals or materials to be used in Contractor's scope of
work.
c. Work not included:
i. Non-required submittals will not be reviewed by EklecCo or its
Consultants.
ii. The Contractor may require its subcontractor to provide drawings,
setting diagrams and similar information to help coordinate the Work, but such
data shall remain between the Contractor and its subcontractors and will not be
reviewed by EklecCo or its Consultant.
2. QUALITY ASSURANCE
a. Coordination of submittals:
i. Prior to each submittal, carefully review and coordinate all aspects of
each item being submitted.
<PAGE>
ii. Verify that each item and the submittal for it conform in all respects
with the specified requirements. Contractor is solely responsible for
correctness of dimensions and quantities and fitting to other work; verification
of physical interrelation of elements of the Work from plans and specifications
and in the field; fabrication procedures; construction methods; techniques and
sequences.
iii. Contractor is to review, sign and stamp each submittal. By affixing
the Contractor's signature and stamp to each submittal, Contractor certifies
that coordination has been performed. Submittals will not be reviewed by EklecCo
or Consultant without prior review by the Contractor.
b. Substitutions:
i. The Contract is based on the standards of quality established in the
Contract Documents. EklecCo reserves the right to decline Substitutions which
are not listed at time of bidding.
ii. The following products do not require further approval except for
interface with the Work:
A) Products specified by reference to standard specifications such as ASTM
and similar standards.
B) Products specified by manufacturer's name and catalog model number.
iii. Do not substitute materials. equipment. or methods unless such
substitution has been specifically approved in writing, in advance, for this
Work by EklecCo.
c. "Or equal":
i. Where the phrase "or equal", or "or equal as approved by the
Consultant", occurs in the Contract Documents, do not assume that the materials,
equipment, or methods will be approved as equal unless the item has been
specifically so approved for this Work in advance, in writing by the Consultant,
offer notice to EklecCo.
ii. The decision of the Consultant as approved by EklecCo shall be final.
SUBMITTALS
a. Make submittals of Shop Drawings, Samples, substitution requests and
other items in accordance with the provisions of this Section.
<PAGE>
EklecCo
4. SUBSTITUTIONS
a. All substitution recommendations will also require the submittal of a
complete listing of all other work areas which may be affected by the
substitution along with a list of costs savings potential before and after all
affected areas have been factored. EklecCo will rely on such listing.
B. PRODUCTS
1. SHOP DRAWINGS
a. Scale and measurements: Shop Drawings are to be made accurately to a
scale sufficiently large to show all pertinent aspects of the item and its
method of connection to the Work.
b. Types of prints required:
i. Submit Shop Drawings in the form of one sepia transparency of each sheet
plus three blue line or black line prints of each sheet.
ii. Blue prints alone will not be acceptable.
c. Review comments of the Consultant will be shown on the sepia
transparency when it is returned to the Contractor. The Contractor may make and
distribute such copies as are required for its purposes.
2. MANUFACTURERS' LITERATURE
a. Provide Sample(s) identical to the precise article proposed to be
provided. Identify per Section C. I. below.
b. Number of Samples required:
i. Unless otherwise specified, submit Samples in the quantity which is
required to be returned, plus two which will be retained by EklecCo and
Consultant.
ii. By written pre-arrangement in specific cases, a single Sample may be
submitted for review and, when approved, be installed in the Work at a location
agreed upon by EklecCo.
<PAGE>
PRIVILEGED CONFIDENTIAL
MEMORANDUM
TO: E-076S File Steel Erection
FROM: Jim Bold
DATE: June 12, 1996
RE: A meeting between Joe Polito, Ron Polito, and Jim Bold
The purpose of the meeting was to discuss the US Bridge of New York, Inc
proposal relating to Palisades Center
Ron and Joe Polito presented their revised pricing, which reflected some
revised union work rule changes and some additional aggressive pricing on their
part from a management stand point. Their revised price at the on set of the
meeting was $8,500,000.00. We continued the discussions relative to schedule,
specifically discussing Tower I and our need for accelerating their proposed
schedule for Tower I as it relates to the turn over of the Home Depot space. The
issue of accelerating the Tower I schedule ended up as shift work using two
shifts on Tower I of seven hours each with a make up day on Saturday. Joe
discussed with both the Operating Engineer's union and the Iron Workers Union
the proposed arrangement. They both agreed that the shift work for the steel
would be at straight time, plus the make up on Saturday at straight time. The
operating engineers agreed to man both shifts at straight time. We finalized the
negotiation at $8 200.000.00. Joe responded that was agreeable, but with a
two-week pay cycle. I took it back to the group and the group countered saying
we would only be able to make one intermediate payment to US Bridge of New York,
Inc. relating only to the Tower I portion.
Our final agreement is $8,200,000.00 with one intermediate payment and our
previously agreed upon payment terms that are invoice on the 25th, pay on the
15th with a 2% discount.
<PAGE>
MEMORANDUM
TO: E-0765 File. Steel Erection
FROM: Jason Teller
DATE: June 12, 1996
RE: A meeting between Ron and Joe Polito of US Bridge of New York, Inc.
ATTENDEES:
EklecCo: Jason Teller
Pete Teller
Jim Bold
Mike Barney
Pete started the meeting by explaining that prior to this award we wanted
to go through a few additional issues We may have covered some of those issues
already and some may not have been, but we just wanted to clarify them. Once
discussed, Jason will dictate a memorandum and this memorandum will be an
exhibit to the contract should we award to US Bridge of New York, Inc.
The first issue was the union situation. US Bridge of New York, Inc. is a
union contractor and Pete Teller stated that we do not want any problems on the
site, EklecCo does not want disharmony. EklecCo has no problem with US Bridge of
New York, Inc. functioning as a union contractor, but did not want any problems
with any of the other contractors on the site. For example, if US Bridge of New
York, Inc. has a master mechanic on site, this will not effect any other
contractors working there. This is not a union job, it is an open shop with a
prevailing wage agreement. If there were any union trouble makers on the site,
we would expect them to be removed. Joe Polito responded, "My workers on the
site are iron workers, not organizers, so we will remove them if necessary". Joe
also added, "There will be a two gate system in place if needed and my workers
will honor a two-gate system and continue to work if necessary because my
workers will use it if there are pickets."
Pete Teller then explained he thought it was a good time to bring up the
prevailing wage agreement that EklecCo has signed with the unions. The unions
and EklecCo have agreed to work in harmony. Pete Teller stated that if the
unions were to picket this job for any reason, it would then void this
prevailing wage agreement. Joe responded, "I know how the agreement was put
together."
Pete Teller then asked Mike Barney to review his discussions on flexibility
and schedule, realizing we have covered it several times but also this morning.
Mike exclaimed that due to possible land problems in Phase lit may be necessary
to do some of the erection, possibly area 7 and area 8, out of sequence or at a
later date. Joe Polito agreed that they had discussed this earlier and whatever
<PAGE>
areas that EklecCo needs US Bridge of New York, Inc can adjust the timing
on areas 7 and 8. He can do the other areas out of sequence as long as the
fabricator can supply his two cranes that he will have in each area Joe also
stated, "If necessary, we would shut down the cranes and remobilize
Joe Polito then brought up the roadways he is expecting to see out on the
site. He needs two strips down the pad. I noted that the entire building pad has
a 3.5' lift of stone, geogrid, and fabric serving as a construction mat and this
should be sufficient. Pete Teller brought up the soft area that we recently
encountered near Tower 3, where the mud wave occurred, and that it would be a
good idea to avoid this area when erecting. Joe Polito stated, "That is what
Mike Stewart does out on the site and we can work around it."
Pete Teller then asked Jim Bold to review the shift work that was
negotiated earlier today for Tower 1. Jim explained that basically the agreement
was that US Bridge of New York, Inc. would employ two seven hour back to back
shifts each day and that they would have a make up day on Saturdays. This
agreement went for iron workers as well as operators. Saturdays will serve as a
rain day make up. This allows us to accelerate the Tower 1 schedule beyond what
is shown in the contract schedule but we are unable to ascertain the effect it
will have on the schedule at this point. Joe Polito agreed with this assessment.
Joe stated, "I can only agree to durations at this point for schedule. Only
after I meet with the foundation contractor, fabricators, and see the site
progress can I nail down the exact dates."
Pete Teller thought it was a good time to bring up the contract
administrators that EklecCo has out in the field are basically out there to
administer the contract. They really do not have a tremendous amount of
knowledge of construction, so EklecCo is relying heavily on US Bridge of New
York, Inc. as experts in the steel erection area." Joe stated, "I understand".
Pete Teller stated, "I hope that I can say with a straight face that US
Bridge of New York, Inc. has had adequate time to review the drawings as the
negotiations have been going on since March." Everyone laughed and Joe Polito
responded, "Yes. we have had plenty of time and we know the drawings very well."
US Bridge of New York, Inc. has had plenty of time to review the plans,
accepts them, and are comfortable with the plans. Joe Polito asked about the
survey on the site, what would be provided. I explained to Joe Polito that
EklecCo has provided a benchmark and two column lines that intersect at one
column point. The foundation contractor then takes it to do all of his layout
that US Bridge of New York, Inc. will then survey and continue. US Bridge has
been told that the responsibility for the survey is theirs and the
responsibility for the anchor bolts is handed from the foundation contractor to
them and it is US Bridge of New York, Inc.'s responsibility to review and accept
them if they are correct or work out any problems directly with the foundation
contractor.
<PAGE>
PRIVILEGED & CONFIDENTIAL
MEMORANDUM
TO: E-076S File: Steel Erection
FROM: Mike Barney
DATE: June 4,1996 (10:00 a.m.)
RE: Phone conversation with Joe Polito of US Bridge
ATTENDEES:
EklecCo: Jason Teller
Mike Barney
Jim Bold
I asked Joe Polito to give us an update on his phone conversation with Gary
Gaydos of the local union that was scheduled to take place earlier this morning.
Joe went on to explain the phone conversation. The unions are very concerned
that if they give special treatment for this project the entire prevailing wage
for this entire region would be affected in the same manner. Jason Teller jumped
in and explained that this job is not a prevailing rate wage job per say, but we
have agreed to pay the prevailing wage rates. Joe went on to explain that the
unions are not allowed to have two rates. If they were to give us favoritism on
the rate then the State could go to court and get the same rate Joe then
explained that Gary Gaydos said he is still thinking about the rate. I then
reaffirmed our meeting with Joe at the site tomorrow at 3:00 p.m. with Jason and
Pete Teller.
cc: Jason Teller
Pete Teller
Jim Bold
Joe Mareane
<PAGE>
COMMITMENT
MEMORANDUM
TO: Steel Erection File
FROM: Chris Montrose
DATE: May 31, 1996
RE: Meeting with US Bridge and EklecCo
Present from US Bridge via teleconference are Vice President, Ron Polito,
President, Joe Polito and on Site Supervision, Mike Stewart. Carolyn Frani and
Chris Montrose are present from EklecCo. US Bridge representatives understand
that they can interrupt the dictation of this memorandum at any time to make any
additions and/or changes to the dictation.
I started the meeting out by explaining to US Bridge that EklecCo is
obtaining a Commitment Memo from the top three bidders for steel erection. Once
the memos are complete they are presented to the group along with the bids. U.S.
Bridge understands the Commitment Memo is evaluated seriously by the group in
order to determine who will be awarded this Contract.
I next asked US Bridge, putting price aside what can they offer EklecCo for
the erection of steel that would convince EklecCo to award the steel erection
contract to them9 Joe Polito stated "We are committed to service and
coordination. We will handle all of the coordination for this Project." Joe also
stated, "We have access to our own men. I have guys setup from Canada currently
and I also have men from the local unions." Joe continued by stating, "I am the
co-chairman of the union funds in the area".
Joe stated, "If awarded this job, I would have Mike Stewart set up an
Advance Shipment List which would be given to our fabricators." Joe stated, "We
divide the building up into subdivided areas and we basically build the building
on paper to give to the fabricator."
Joe stated, "We continually check with the fabricator to make sure that he
will be able to meet the schedule that we have given them. We order the steel
from the fabricator."
I asked Joe, Ron and Mike about their coordination with the fabricator and
how would they handle any possible field conflicts. Joe stated, "We will
coordinate very closely with the fabricator and detailer to get the job done in
a fast time."
Joe wanted to add to the memo, that he has requested if they are awarded
this project that they want an immediate meeting with our fabricator and the
detailer so they can be brought up to speed and put on the same page as one
another and work together harmoniously.
<PAGE>
PRIVILEGED & CONFIDENTIAL
I explained to US Bridge that we have Contract Administrators on site and
have no Construction Managers or General Contractors. I also explained that our
Contract Administrators have no previous construction experience, and this was
done purposely, so their opinions are unbiased. I asked US Bridge how they would
handle filling in any gaps that would develop on site due to this condition. Joe
stated, "We will coordinate with the other trades. We will also copy the
Contract Administrators on any of the information that develops between this
coordination to make them aware of what is happening." Joe also stated, "We are
ready and willing to take on this responsibility." I explained to Joe that we
have a morning meeting every morning at approximately 7.30 and at least one
representative from each Scope of Work attends that meeting to put any issues on
the table that they may have to coordinate the overall Project. Joe stated,
"This would work good for us." He also said that they have a surveying crew that
will continually be on site and one member from the survey crew will attend the
meeting along with Mike Stewart.
I next explained to US Bridge, that if EklecCo were to hire their company,
it would be because of their expertise. EklecCo, as the Developer, looks to the
people we hire to have all of the expertise. Joe stated, "The main thing we have
to offer is our expertise. I have been trying to get this across for the past
two months. One of our strongest suits is coordinating and getting the entire
package together using our expertise." Joe then wanted to add, "The expertise is
used best in the early part of the Project when the fabricator, detailers and
erectors meet to get everyone on the same page and start the coordination
process on the right foot."
I next asked, "What is the last mall project that US Bridge worked on9" Joe
stated, "It was the Concourse Plaza, and we used three cranes on this project
and erected approximately 5,000 to 6,000 tons of steel." Joe stated, "We have
built numerous buildings in the past and I have been in the business since 1956
and opened my own business in 1966, so I have a lot of experience under my
belt."
I next told Joe since he has worked on many projects in the past, he
understands that flexibility is key in any project. Joe stated, "You have to be
flexible. As long as the steel is not missing in the building and access is
still available, we will be able to move around at your direction and be very
flexible".
If for some reason the Scope of Work changes and a Change Order becomes
necessary, US Bridge is not to go ahead with any work without written
authorization. Joe stated "we use what is called a DAN form. Which is a
notification form given to EklecCo which shows any changes that have evolved,
and if they affect or do not affect our project, we even flag any drawing
changes and make EklecCo aware of the changes."
In closing I asked US Bridge if they could sum up their overall commitment
to us. Joe stated, "We are very, very interested in getting this work. We are
the people for this Project. We are willing to give a full commitment for this
work and do the best job for you."
<PAGE>
PRIVILEGED & CONFIDENTIAL
MEMORANDUM
TO' Steel Erection File E-076(S)
FROM. Mike Barney
DATE. May 24,1996 at 2:00 p.m.
RE: Phone Conversation with Joe Polito from US Bridge
I opened the phone conversation by explaining that we would be sending U.S.
Bridge the newest and most revised plans dated 5/22/96, two blue line copies, in
addition to one set of sepias. Joe asked that they be delivered on Tuesday, May
28,1996 rather than Saturday.
I explained to Joe that there are changes on these plans, however, we
expect no cost impact from the changes. I explained that changes are really the
nature of our business and I am sure that there will be more changes as tenancy
progresses. I then explained to Joe that US Bridge's pricing and Contract are
"in line" and the next step is to make sure that their Scope of Work is equal to
their competitors.
I then explained to Joe that it is EklecCo's intent when awarding the Scope
of Work to include everything necessary to complete the structural steel and
accessories. We are buying a Structural Erection package for all the steel
required to erect the structure. As I said earlier, "Plans are in progress and
there will be changes as design and tenancy progress."
I then continued by reviewing a checklist of EklecCo's expectations from US
Bridge and other steel erection bidders that we would award the work to.
+ The Erector would be responsible for accepting the anchor bolts from the
foundation contractor. Joe explained that US Bridge has survey included in their
price. US Bridge will survey the anchor bolts to make sure they are correct. If
they are not correct, it will not be US Bridge's responsibility to fix them. l
explained to Joe that it will not be US Bridge's responsibility to fix, however,
it will be US Bridge's responsibility to coordinate with the foundation
contractor to get the work completed correctly and Joe agreed.
+ I said, "As you know, Joe the plans are in progress and there may be
additional changes. It will be the erector's responsibility to coordinate all
changes at no additional cost." Joe explained, "I understand 100% and like I
told you at the meeting in Syracuse, US Bridge will coordinate everything." Joe
explained that once they are awarded the job, they will put together an entire
schedule from the delivery of joist, deck and steel all the way out to
<PAGE>
PRIVILEGED & CONFIDENTIAL
completion of each section. Once the detailed schedule is agreed upon with
EklecCo, they will coordinate and facilitate all deliveries of all material and
accept all material on site and take responsibility for it. The only time
EklecCo will get involved is after US Bridge has exhausted everything that they
can do to make sure the suppliers respond and they don't. Joe agreed, and
explained that he doesn't think that will happen on this job
+ It will be the erectors responsibility to relocate all x-bracing at no
additional cost, as necessary Joe explained that he has no problem with that and
for the record, it makes it a lot easier if we can give the erector a lead time
with these relocation type issues.
+ It will be the Steel Erectors obligation to clean any mud off the steel
before it is erected. Joe said, "That is no problem, before it goes up, they
pick it up with a lift and hit the edge with a jammer, and all of the mud just
falls off. " I explained to Joe that the steel will be painted after it is
erected. If that is clean enough to paint, that's fine I explained.
+ I explained to Joe that it would be the Erectors responsibility to
schedule and coordinate with the joist supplier, deck supplier, steel
fabricators and concrete column suppliers as well as many others. Joe said, "I
thought I already took care of this back in Syracuse during our meeting, but we
are very willing to coordinate with all suppliers." Joe explained that they will
give a "pre-schedule". Then Joe explained the "pre-schedule" to me as a
durational schedule and stated once the durational schedule is put together, US
Bridge contacts all of the suppliers so they have plenty of lead time in order
to deliver the needed material to site. Joe explained that they do this for each
derrick right down to the truck and right down to the piece
+ I explained to Joe that access around the site will be the erectors
responsibility whether it be on mats, a rock pad, or whatever is out there. Joe
explained that US Bridge needs clear access to the building and once they have
that they take care of the rest.
+ I explained to Joe that our schedule is paramount and EklecCo needs the
capability to speed up or slow down the erection process. US Bridge's
flexibility will include mobilization of additional cranes Joe said, "That is no
problem, put it in the Contract." Joe continued by saying if the steel is ready,
they could mobilize one or two more rigs in addition to the four they have
scheduled. I explained to Joe in addition to mobilization of another crane, in
order to meet the job schedule, it may be necessary for the erector to add
shifts, or overtime in order to meet the schedule. Joe said, "That's fine and it
is included in our Bid." I next explained to Joe that we are always looking for
ways to speed up the schedule, but for any reason EklecCo chooses to slow down
the schedule, they also need that flexibility. Joe said. "I am glad that you
told me that up front so l can negotiate a price for this with his erectors
(sub-contractors to US Bridge)." I explained to Joe that the speed or slow down
will be at no cost to EklecCo. Joe said, "I can handle that."
I asked Joe to explain the guide wire system for stability that they will
be using. Joe started to explain the guide wire system and I interrupted Joe and
explained to him that we would need additional guide wires from a normal job so
we will have the capability to erect precast panels before the building is
totally erected. Joe explained that once US Bridge gets the new structural
plans, they will put together a guide drawing for EklecCo's approval. I
concurred.
I explained to Joe that there are changes on the plans. One of the changes
that we know about is
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PRIVILEGED & CONFIDENTIAL
in Tower 1, BJ's. The changes are the BJ's TMA, which is a Tire Maintenance
Area, the Loading Dock and the BJ's Entrance These will all be changing and I
explained to Joe whatever erector gets this portion, we will have to erect
something different than what is on the plans. Joe explained that he has no
problem with that as long as they have access back to the point so they can get
a Cherry Picker into that area. Joe also said there would be no cost to EklecCo
for this change. Joe also said, "With all of the changes that are going to
happen, it is all going to come down to communication and coordination and that
is US Bridge's strong point."
The erector will have to be responsible for sequencing the work. EklecCo
will have the ability if they choose to dictate as to where the erector will be
working. Joe explained that they are flexible and don't have a problem with
moving around as long as they can access the portion of work Joe explained that
they cannot bring in helicopters to erect the steel on the inside of the
building at no cost, but as long as they can access it there are no problems.
Joe then explained a discussion that we had in Syracuse in a prior meeting,
in sequencing US Bridge is willing to take our derrick schedule and is willing
to break it into smaller derricks that will be easier to work with. He will
relabel the derrick schedule and coordinate with the fabricator so the derricks
are sequenced and delivered correctly for erection.
I explained to Joe that EklecCo wants a commitment from US Bridge that we
don't want to be nickeled and dimed and no Change Orders for moving X-Braces,
loading docks, or change in steel size. Joe explained the only time there is a
Change Order, is if the change is significantly more work than the original work
that was replaced. Joe also explained that the only cost associated with going
with much heavier steel is the added connecting materials. Joe explained that a
"pick is a pick," and it won't cost us any more.
I explained to Joe that it is the erectors responsibility to include all
coordination, facilitation of deliveries, coordination of erection drawings,
derricking, deliveries and acceptance of deliveries. Joe explained that he has
covered this several times, but agrees 100%.
The last point Joe and I covered was safety cable. Joe explained that they
will install one cable for their iron worker obligation at 60". The 60" inch
cable or high cable is permanent and meant to stay in place for the future. Joe
explained that if EklecCo wishes, we could tie all of our net into this wire and
make it permanent, lift up the net when the slabs are poured and then tack it
down. I explained to Joe that I did not understand this 100% and this issue
along with several others that Jason and I will want to cover Tuesday morning,
after Memorial Day weekend when Jason is back in the office. Joe said, "that is
fine" and he expects a call along with Ron.
Before we hung up, Joe asked how they looked for the job. I explained to
Joe their pricing is in line and their Contract is now in line, the only things
we have to put behind us on Tuesday are the remainder of the Scope of Work
issues, and to finalize the unit prices and we will move on from there to the
commitment memorandum. Joe said, "Great."
cc: Jason Teller
Joe Polito
Ron Polito
Jim Bold
<PAGE>
PRIVILEGED & CONFIDENTIAL
Scope of Work
Structural Steel Erection for the Palisades Center
Contractor shall furnish and install all, but not limited to, necessary and
appropriate labor, materials, equipment, supervision, coordination,
mobilization, and taxes necessary to erect the structural steel for Palisades
Center as per plans and specifications
1. Contractor shall be responsible for all coordination with the structural
steel fabricators, detailers, joist and deck suppliers, structural engineer,
foundation contractors, precast column suppliers and all other contractors that
affect the structural steel erection scope of work.
2. Contractor shall be responsible to coordinate and schedule all
deliveries of the structural steel elements that are necessary for the
structural steel erection scope of work.
3. Contractor agrees to provide, all but not limited to, erection bolts,
shear studs, welding material, etc. necessary to complete the structural steel
erection scope of work.
4. Contractor agrees to install all pour stop, deck closure, metal decking,
and shear studs as necessary and indicated on the Contract plans.
5. Contractor has provided a deduct price for the erection of areas 7 and 8
of $957,000.00 if EklecCo elects not to erect this portion of work.
6. Contractor agrees to provide all necessary matting for the safe
operation of a crane, if necessary
7 Contractor has included in his lump sum contract price the coordination
and erection of all precast columns.
8. Contractor has included the erection of the joist, joist girders, and
bridging as shown on the contract plans
9. Contractor agrees to examine all delivered materials prior to accepting
them to ensure that they are in proper condition after shipping and report any
discrepancies in writing directly to the suppliers.
10. Contractor agrees to coordinate all necessary testing and inspection
and accommodate all scheduling necessary for any owner, state, local, or federal
inspections as may be necessary
11. Contractor understands that the intent of this contract is a 100% turn
key erection package for Tower I and the entire mall.
10
<PAGE>
MEMORANDUM
TO: E-076(S) US Bridge File
FROM: Mike Barney
DATE: May 23, 1996 5:40 p.m.
RE: Phone Conversation with Ronnie Polito
Ronnie Polito called to explain a couple of schedule changes and that they
would be using four cranes starting on July 7,1996
He also explained that he talked to Jason Teller earlier this afternoon and
that they were hoping to get a Letter of Intent tomorrow I explained that I did
not know the content of his and Jason's conversation, but in my opinion we have
a lot of issues to work through before there is a Letter of Intent or Contract
signed. Ronnie asked, "What things need to be complete9" I explained. "We have
to go through all Unit Price Schedules and both need to be comfortable with the
numbers as well as a business memo " I also explained to Ronnie that the
business memo is what we expect from both parties once the Contract is signed.
Ronnie replied by saying "Okay, what we will do is spend the whole day on it
tomorrow and go through everything, and then we will go from there."
cc: Jason Teller
Ron Polito
<PAGE>
PRIVILEGED & CONFIDENTIAL
MEMORANDUM
TO: E-0765 File: Steel Erection
FROM: Mike Barney
DATE: May 23,1996
RE: Phone Conversation with Ron Polito of U.S. Bridge
Ron Polito called me and we proceeded to go through the schedule that I
faxed him earlier this afternoon. He explained to me the dates that he would be
expecting to be capable of obtaining.
<TABLE>
<CAPTION>
<S> <C> <C>
Area Start Finish
1 6/3/96 7/7/96
2, 3, 4 7/10/96 9/12/96 (plus adding two weeks for deck and studs)
5, 6, 7,8 9/13/96 11/12/96 (deck an additional two weeks to final completion date of 11/25/96)
</TABLE>
I explained to Ron that these dates are promising, however there are areas
that are subject to very strict scheduling. I explained to Ron these areas are
Area 1, the beginning of Area 3, and the finish date for Areas 7 and 8. Ron said
he understood and he would take a look at what he would have to do to get closer
to our proposed schedule in these areas especially. I then explained to Ron that
I had been going through picks and piece counts all day and I see that our
schedule could be obtained with no less than five cranes. Ron explained that he
would be using 3 cranes for his schedule. I stated that I was impressed that
they could get that amount of work done in that short of time with only 3
cranes, I had expected them to use more. Ron explained that the only way they
can accelerate the schedule is to actually add more man power and more cranes.
The reason they are not willing to do that is because of cash flow. Ron
explained if we could help them out with cash flow in the beginning of the job
they can add more cranes and obtain our schedule. I told Ron I would go back to
the group and explain this to them and we would go from there but until then we
need to do the best we can with the 3 and 4 crane scenario that we have been
moving and talking about the entire time. Ron said that is great.
I then apologized to Ron for any misunderstandings that we may have had
with the job in the past and I explained that there are several issues we must
clear up before we can award the job. I told Ron that Jason and I would be
contacting him tomorrow to work through all the open issues. Ron said there is
no hard feelings and we will move forward tomorrow.
Ron Polito, U.S. Bridge (via facsimile)
Jason Teller, EklecCo
<PAGE>
MEMORANDUM
TO E-076S File: Steel Erection
FROM. Mike Barney
DATE: May 22, 1996
RE: Phone conversation with Joe Palito of U.S. Bridge
In the phone conversation I explained to Joe that there are several open
issues that we have to close before EklecCo can make the final decisions on the
steel erection award. First of which is the price breakdown for Tower VII and
Tower VIII. Joe explained that he has guys working on it and we will be getting
it tomorrow. The second open issue is the area schedule breakdown for the job
schedule. Joe then explained that I would need to send him our target dates for
each area for him to evaluate whether or not our schedule is still realistic. I
told him that I would send over our revised schedule breakdown and the
sequencing that we were targeting today and he would evaluate it and have his
revised schedule, or the agreement to our schedule, answered by tomorrow. The
other two areas that we have to complete are the business memorandum. which is
an outline of everything that is included and excluded in the entire business
deal. I explained to Joe that both myself, him, and Ronnie would have to be
included in that conversation and that it would have to be documented fully so
that we can evaluate the bids "apples to apples". The memorandum we have to
complete is the commitment memorandum, which is apart from the business deal and
explaining and detailing what U.S. Bridge will be committing to in order to get
this job. I explained to Joe that EklecCo weighs this commitment memorandum very
heavily and all of these things have to be completed before we can make a final
determination of who is awarded the Scope of Work.
<PAGE>
Target Dates
Job Schedule Area Breakdown
Area 1(commonly known as Tower I): includes Walmart, Sam's Club, and Home Depot.
Start Date: June 3,1996
Finish Date: July 5,1996
Area 2: includes column lines 1 - 10
Start Date: June24, 1996
Finish Date: July 20,1996
Area 3: includes column lines 10 - 19
Start Date: June 17,1996
Finish Date: September 14,1996
Area 4: includes column lines 19 - 28
Start Date: July29, 1996
Finish Date: October 19,1996
Area 5: includes column lines 28 - 38 and column lines C - S,
Excluding Tower 7 and Tower 8.
Start Date: August 26,1996
Finish Date: November 2,1996
Area 6: includes column lines 30 - 38 and column lines S - Z.
Start Date: September 16,1996
Finish Date: November 2, 1996
Area 7: includes Tower 7
Start Date: July 29,1996
Finish Date: August 31,1996
Area 8: includes Tower 8
Start Date: July 29,1996
Finish Date: August31. 1996
<PAGE>
MEMORANDUM
TO Steel Erection & Fabrication File
FROM: Mike Barney
DATE; 4/9/96
RE: Meeting with US Bridge in Syracuse
Present at the meeting were Jason Teller and Mike Barney of EklecCo and Joe
and Ronnie Polito of US Bridge.
The meeting started out with an introduction of EklecCo and the Project as
well as the status. We then moved on to an explanation of US Bridge, the
company. Joe explained that he has been on his own since 1966 doing this type of
business. He was the largest steel erector in the City for several years.
In the late 1980's, they did $45,000,000 a year in just erection. Joe
explained that he is the cochairman of the union funds. He is also on the New
York City's Safety Committee. He is also the Council President of the Building
Congress and Chairman of the Steel Institute. He remains extremely active in
these groups and in turn, allowing him to have no problem manning any size job.
He can get as much manpower as he needs.
Joe explained the key to the job is setting the job up in the beginning by
making sure that steel is on site and making sure that steel gets to the site
banded and derricked correctly.
Joe also explained his company has always liked doing their own
coordination by making sure the steel is trucked and fabricated correctly and
that details make sense up front and correctly.
Joe continued by explaining his fabrication business. He showed us a
brochure. It is 4.5 acres of building under the roof with a 13 acre yard. It is
located in Waldorf, Maryland. It is approximately 6 hours from the site. They
are very familiar with supplying the NY area.
Their last largest erection job recently was in 1993, approximately 4,000
tons at the Manhattan Repair. It is very similar to our job, it was four levels.
Seacrest did that job and the contact is Peter Vandershoot. They will provide us
with the number so we can give them a call. They also
<PAGE>
did Concourse Shopping Plaza. There was approximately 7,000 tons and was
completed in 1990. This was very similar to our Project as well. They ran 3
cranes on that Project. They will provide me with James Sella's number as well.
Joe stated that they would man the job with a coordinator who would be
their top guy, a surveying crew, a general foreman, walking boss, which Joe
called the "whip", he just walks around making sure that everyone is on their
toes, a foreman for each crane crew, a deck crew and they sub that out. They
have done decking in the past themselves, but for this Project they would sub
They pull from the union hall for a lot of their work and also get help
from other workers as well.
I asked what average picks they would get per crane crew per day. Joe
explained it would most likely be 60 picks per day per rig. However, it depends
on what they are erecting. Columns they average about 40 per day and Concrete
columns they average about 15 a day.
Joe then continued by explaining that their experience would save them time
and a lot of steps. US Bridge estimated about 260,000 bolts while Harry Hillman
estimated 225,000 although all of them are in their price.
Jason then asked about schedule. Joe explained it is on 6 month schedule
with approximately 150 working days, plus inclement weather, that is working
with about 3 rigs. However, they said they have the capability, as long as the
steel is there and there is room, to move up into more rigs to accomplish the
schedule. Joe explained on the World Wide Project, they ran 6 rigs. US Bridge's
key to success in erecting is coordination with the fabricator.
Their insurance coverage is $2,000,000 up to $10,000,000.
They do different types of work, bridges, lead and asbestos abatement and
demolition.
Jason asked if US Bridge was in litigation a jot. Joe responded, they have
been in litigation with the schools that they did work for in the past.
US Bridge is supplying us with several references after the meeting for us
to call. They will be breaking down their bid into different categories and will
get us a price on the fabrication of steel.
Joe thought it was necessary to re-derrick and renumber the derricks in
order to make the job run smoothly so they can erect two floors at a time.
We looked at the possibility of some problems that we may have to overcome
at the wall connections and beam to beam connections.
Their cranes weigh about 168 tons each.
They do all engineering in house on their own. They would put two trailers
on site acting as air
<PAGE>
compressor and welding banks. They would also supply a welding bank for
their deck installer.
Jason reviewed our terms as well as payment terms of requisition on the
25th and payment on the 15th and the 2% discount and 10% retainage, 5% released
after 30 days and the other 5% after 6 months.
Joe continued to explain that for fabrication, they really could use a job
quickly and we would have to make a decision quickly so they can respond in a
timely fashion for fabrication.
They did break down a price for us as follows:
Phase 1 is $5,250,000
Phase 2 is $4,139,000
Tower 1, which they referred to as Phase 3 is $1,140,000
<PAGE>
Tower I, Phase I, & Phase II Structural Drawing List
Revised: 5/22/96
Engineer: Thorson Baker & Associates. Inc.
Phase I & Phase II Structural (Palisades Center)
<TABLE>
<CAPTION>
Drawing # Drawing Date Latest Revision
- --------- ------------ ---------------
<S> <C> <C>
SG-1 10/02/95 05/22/96
SD-1 10/02/95 05/22/96
SD-2 10/24/95 05/22/96
SF-1 10/02/95 05/22/96
SF-2 10/02/95 05/22/96
SF-3 10/24/95 05/22/96
SF-4 11/15/95 05/22/96
SF-5 02/15/96 05/22/96
SF-6 03/21/96 05/22/96
S-1 10/02/95 05/22/96
S-2 10/02/95 05/22/96
S-3 10/02/95 05/22/96
S-4 10/02/95 05/22/96
S-5 10/02/95 05/22/96
S-6 10/02/95 05/22/96
S-7 10/02/95 05/22/96
S-8 10/02/95 05/22/96
S-9 10/24/95 05/22/96
S-10 10/24/95 05/22/96
S-11 10/02/95 05/22/96
S-12 10/02/95 05/22/96
S-13 10/02/95 05/22/96
S-14 11/15/95 05/22/96
S-15 01/08/96 05/22/96
S-15A 05/08/96 05/22/96
S-16 11/15/95 05/22/96
S-17 05/08/96 05/22/96
S-18 11/15/95 05/22/96
S-19 11/15/95 05/22/96
S-20 11/15/95 05/22/96
S-21 11/15/95 05/22/96
S-22 11/15/95 05/22/96
S-23 02/15/96 05/22/96
S-24 04/08/96 05/22/96
S-25 01/18/96 05/22/96
S-26 01/19/96 05/22/96
S-28 02/06/96 05/22/96
S-29 02/06/96 05/22/96
S-30 02/08/96 05/22/96
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Drawing # Drawing Date Latest Revision
- --------- ------------ ---------------
<S> <C> <C>
S-31 04/03/96 05/22/96
S-32 04/03/96 05/22/96
S-33 04/08/96 05/22/96
S-33A 04/08/96 05/22/96
S-34 04/08/96 05/22/96
S-35 04/08/96 05/22/96
S-36 04/03/96 05/22/96
S-36A 05/22/96 05/22/96
S-37 04/03/96 05/22/96
S-38 05/08/96 05/22/96
S-39 05/06/96 05/22/96
S-40 05/06/96 05/22/96
S-41 05/06/96 05/22/96
S-42 04/08/96 05/22/96
S-43 05/01/96 05/22/96
S-44 05/08/96 05/22/96
</TABLE>
<PAGE>
Tower I, Structural Drawing List
Revised: 6/5/96
Engineer Thorson Baker & Associates. Inc.
Tower 1(Walmart.The Home Depot. Sams Club drawings)
<TABLE>
<CAPTION>
Drawing # Drawing Date Latest Revision
- --------- ------------ ---------------
<S> <C> <C>
SG-1 01/24/96 03/27/96
SF-1 11/08/95 06/05/96
SF-2 08/11/95 06/05/96
SF-3 08/11/95 06/05/96
S-1 08/11/95 06/05/96
S-2 08/11/95 06/05/96
S-3 09/20/93 06/05/96
S-4 09/20/93 06/05/96
S-5 09/20/93 06/05/96
S-6 09/20/93 01/24/96
S-7 08/11/95 01/24/96
S-8 08/11/95 06/05/96
S-9 11/08/95 06/05/96
</TABLE>
<PAGE>
SECTION 05120 - -STRUCTURAL STEEL
PART 1- GENERAL
1.1 RELATED DOCUMENTS
A. Drawings and general provisions of Contract, including
General and Supplementary Conditions and Division 1
Specification sections, apply to work of this Section.
1.2 DESCRIPTION OF WORK
A. Extent of structural steel work is shown on drawings,
including schedules, notes and details to show size and
location of members, typical connections, and type of
steel required.
B. Structural steel is that work defined in American
Institute of Steel Construction (AJSC) "Code of Standard
Practice" and as otherwise shown on drawings. It includes
steel columns, base plates7 beams, and other steel items
which are a part of the building structure.
C. In addition, furnish to the installer involved, such items
as bolts, anchor bolts, inserts, clip angles, and sleeves,
required for attachment of items specified in this
Section, together with placement drawings and tolerances.
This includes all plates and beam anchorage.
D. Related Work Specified Elsewhere:
1. Section 03300 - Setting anchor bolts and embedded
plates in concrete.
2. Section 05400 - Cold-formed metal framing.
3. Section 05500 - Loose steel lintels and other
miscellaneous metal fabrications.
4. Section 07250 - Sprayed-on fireproofing.
5. Section 09900 - Painting - Touch up painting.
E. Work Provided by Others:
I. By the Owner - Payment of costs for testing and
inspection as described hereinafter.
<PAGE>
1.3 QUALITY ASSURANCE
A. Source Quality Control: Materials and fabrication procedures are subject
to inspection and tests in mill, shop, and field, conducted by a qualified
inspection agency. Such inspections and tests will not relieve Contractor of
responsibility for providing materials and fabrication procedures in compliance
with specified requirements. Promptly remove and replace materials or fabricated
components which do not comply.
1. The structural steel supplier shall certify that
high strength bolts have been manufactured in the United
States and meet the designated ASTM specifications.
2. High strength bolts without the manufacturer's
identifying symbol shall not be used.
B. Design of Members and Connections: Details shown are typical; similar
details apply to similar conditions, unless otherwise indicated.
C. Codes and Standards: Comply with provisions of the following:
1. AISC "Code of Standard Practice for Steel Buildings
and Bridges".
2. AISC "Specifications for the Structural Steel for
Buildings", including the "Commentary" and Supplements
thereto as issued.
3. AISC "Specifications for Structural Joints using
ASTM A 325 or A 490 Bolts" approved by the Research Council
on Riveted and Bolted Structural Joints of the Engineering
Foundation.
4. AWS D1.1 "Structural Welding Code".
5. ASTM A 6 "General Requirements for Delivery of
Rolled Steel Plates, Shapes, Sheet Piling and Bars for
Structural Use".
6. AISC "Architecturally Exposed Structural Steel".
D. Qualifications for Welding Work: Qualify welding processes and welding
operators in accordance with AWS "Standard Qualification Procedure". Provide
certification that welders to be employed in work have satisfactorily passed AWS
qualification tests. If recertification of welders is required, retesting will
be Contractor's responsibility.
<PAGE>
A. Product Data: Upon Engineer's request submit producer's or
manufacturer's specifications and installation instructions for following
products. If requested, submit laboratory test reports and other data to show
compliance with specifications, including specified standards.
1. Structural steel and high strength bolt
certification as noted in quality assurance.
2. Structural steel (each type), including certified
copies of mill reports covering chemical and physical
properties.
3. High strength bolts (each type), including nuts and
washers.
4. Structural steel primer paint.
5. Shrinkage-resistant grout.
B. Shop Drawings:
1.Submit shop drawings prepared under supervision of a
registered structural engineer, including complete details
and schedules for fabrication and assembly of structural
steel members, procedures and diagrams. Include details of
cuts, connections, camber, holes, and other pertinent data.
2. Indicate welds by standard AWS symbols, and show
size, length, and type of each weld. Provide setting
drawings, templates, and directions for installation of
anchor bolts and other anchorages to be installed by others.
Provide calculations used for designing connections.
3. AISC standard double angle connection details shall
be used for all connections that are not otherwise detailed
on the drawings. Where the reactions of beams and girders
are not shown on the drawings, the connections shall be
designed to support the maximum allowable uniform load as
indicated in the load tables of the AISC Manual of Steel
Construction for the given beam size and span.
4. Shop drawings shall indicate the date of the
structural drawings that were used to prepare the shop
drawings.
5. Shop drawing submittals shall consist of a direct
reading transparency plus 2 prints of each drawing.
<PAGE>
PRIME CONTRACT PRE-CONTRACT MEMORANDUM
PROJECT: Palisades Center MEETING DATE: Syracuse
OWNER: EklecCo MEETING PLACE: Model Room
DEVELOPER: EklecCo PEOPLE PRESENT: Mike Barney
CONTRACTOR: US Bridge Jim Bold
Joe Polito
Ron Polito
1. DISCUSSION ON PURPOSE OF MEETING
AND MEMORANDUM X__YES __ NO
Discussion: (see attached)
2. CHECKLIST ON DISCUSSION OF NATURE AND CONTENT OF CONTRACT
X YES NO (A) LUMP SUM CONTRACT (6.1 and 6.2)
- ----- -----
X YES NO (B) THE DOCUMENTS THAT CONSTITUTE THE CONTRACT
(1.1)
X YES NO (C) SCOPE OF WORK
(D) INDEPENDENT CONTRACTOR DILIGENCE IN EXAMINING (2.1):
X YES __ NO
(i) the site
X YES __ NO
(ii) plans and specifications
X YES __ NO
(iii) EklecCo review and acceptance of plans & specs
revised
X YES __ NO
(iv) local, state, federal laws, rules, ordinances,
codes (zoning, building, health, electrical, plumbing,
sanitary, etc.)
X YES __ NO
(v) environmental laws ----- X YES NO (vi) other (see
attached) ---- -----
X YES __ NO (E) WORK MUST BE DONE TO EKLECCO'S SATISFACTION (2.2.1)
- ---
X YES __ NO
(i) All disputes resolved by EklecCo's judgment ---
<PAGE>
C. Test Reports: Submit copies of reports of tests conducted
on shop and field bolted and welded connections. Include
data on types of tests conducted and test results.
D. Certification: Where sprayed fireproofing is required on
steel surfaces to be painted, coordinate with
fireproofing installer by providing certification of
compatibility and performance of primer paint used
relative to the fireproofing material.
1.5 DELIVERY, STORAGE AND HANDLING
A. Deliver materials to site at such intervals to insure
uninterrupted progress of work. Deliver anchor bolts and
anchorage devices, which are to be embedded in
cast-in-place concrete or masonry, in ample time to not
delay work.
B. Store materials to permit easy access for inspection and
identification. Keep steel members off ground, using
pallets, platforms, or other supports. Protect steel
members and packaged materials from corrosion and
deterioration.
C. Do not store materials on structure in a manner that might
cause distortion or damage to members or supporting
structures. Repair or replace damaged materials or
structures as directed.
PART 2- PRODUCTS
2.1 MATERIALS
A. Metal Surfaces, General: For fabrication of work which will be
exposed to view, use only materials which are smooth and free of
surface blemishes including pitting, seam marks, roller marks, rolled
trade names and roughness. Remove such blemishes by grinding, or by
welding and grinding, before cleaning, treating and applying of
surface finishes.
B. Structural Steel Shapes, Plates and Bars: ASTM A 36 or ASTM A
572, grade 50 as noted on drawings.
C. Cold-Formed Steel Tubing: ASTM A 500, Grade B.
D. Steel Pipe: ASTM A 53, Type B or S, Grade B, black, except
where indicated to be galvanized. Provide Type S (seamless) where
exposed to view.
<PAGE>
E. Anchor Bolts: ASTM A 36, nonheaded type unless otherwise
indicated.
F. High Strength Threaded Fasteners: Heavy hexagon structural
bolt, heavy hexagon nuts, and hardened washers, of quenched and
tempered medium carbon steel, complying with ASTM A 325. All bolts
shall be marked with the manufacturer's identifying symbol.
G. Electrodes for Welding: Comply with AWS Code.
H. Structural Steel Primer Paint:
1.Fabricator's standard, fast-curing, lead-free, universal
primer, selected for good resistance to normal atmospheric corrosion,
for compatibility with finish paint systems indicated and for
capability to provide a sound foundation for field-applied topcoats
despite prolonged exposure; complying with performance requirements of
FS TT-P-645.
2. Where prime painted steel is to receive sprayed-on
fireproofing, steel shall be furnished un-primed.
3. Primer paint shall be compatible with finish coats on
architecturally exposed steel.
I. Nonmetallic Shrinkage-Resistant Grout: Pre-mixed, noncorrosive,
nonstaining product containing selected silica sands, portland cement, shrinkage
compensating agents, plasticizing and water reducing agents, complying with
CE-CRD-C62 1.
2.2 FABRICATION
A. Shop Fabrication and Assembly: Fabricate and assemble
structural assemblies in shop to greatest extent possible.
Fabricate items of structural steel in accordance with AISC
Specifications and as indicated on final shop drawings.
Provide camber in structural members where indicated.
Properly mark and match-mark materials for field assembly.
Fabricate for delivery sequence which will expedite erection
and minimize field handling of materials.
B. Connections:
1. Weld or bolt shop connections, as indicated.
<PAGE>
2. All field connections shall be bolted. Only use
field welded connections where detailed on
structural drawings. Each field welded connection
shall be fully detailed on erection drawings.
3. Provide high strength threaded fasteners for all
bolted connections.
C. High Strength Bolted Construction: Install in accordance with
AISC "Specifications for Structural Joints using ASTM A 325 or A 490
Bolts".
D. Welded Construction: Comply with AWS Code for procedures,
appearance and quality of welds, and methods used in correcting
welding work.
E. Equipment Supports and Mechanical Opening Framing: Framing
shown on structural drawings is for general arrangement only and may
require modification to suit the actual purchased equipment.
Coordinate with mechanical trades for necessary certified drawings
before starting fabrication. Steel Fabricator shall provide a complete
job ready for installation of equipment, and Contract price shall
cover this requirement regardless of subsequent modifications to
framing shown on drawings, at no extra cost to the Owner.
F. Holes for Other Work: Provide holes required for securing
other work to structural steel framing, and for passage of other work
through steel framing members, as shown on final shop drawings.
Provide threaded nuts welded to framing, and other specialty items as
indicated to receive other work. Cut, drill, or punch holes
perpendicular to metal surfaces. Do not flame cut holes or enlarge
holes by burning. Drill holes in bearing plates.
2.3 SHOP PAINTING
A. General: Shop prime structural steel exposed to view which is
not to be spray fire proofed, except those members or portions of
members to be embedded in concrete or mortar. Paint embedded steel
which is partially exposed on exposed portions and initial 2" of
embedded areas only.
1. Do not paint surfaces which are to be welded or
high-strength bolted with friction-type connections.
B. Surface Preparation: After inspection and before shipping,
clean steelwork to be painted. Remove loose rust, loose mill scale,
and spatter, slag or flux deposits. Clean steel in accordance with
Steel Structures Painting Council (SSPC) as follows.
<PAGE>
1. All interior steel exposed to view 5P6 commercial blast
cleaned.
2. All exterior steel exposed to weather SPIO near white
blast cleaned.
3. All other steel 5P3 power tool cleaned.
C. Painting: Immediately after surface preparation, apply
structural steel primer paint in accordance with manufacturer's
instructions and at a rate to provide dry film thickness of not less
than 2.0 mils. Use painting methods which result in ~l] coverage of
joints, corners, edges and exposed surfaces.
D. Paint Systems: Review painting specifications for finish paint
systems. Coordinate surface preparations of steel and type of primer
used with specifications and the manufacturer's recommendations to
insure compatibility.
PART 3 - EXECUTION
3.1 INSPECTION
A. Before starting erection of structural steel, verily all
bearing elevations and anchor bolt locations. Report any
discrepancies to the Engineer. Do not proceed until
corrections have been made.
3.2 ERECTION
A. Temporary Shoring and Bracing: Provide temporary shoring and
bracing members with connections of sufficient strength to
bear imposed loads. Remove temporary members and connections
when permanent members are in place and final connections
are made. Provide temporary guy lines to achieve proper
alignment of structures as erection proceeds.
B. Temporary Planking: Provide temporary planking and working
platforms as necessary to effectively complete work.
C. Anchor Bolts: Furnish anchor bolts and other connectors
required for securing structural steel to foundations and
other in-place work. Furnish templates and other devices as
necessary for presetting bolts and other anchors to accurate
locations.
D. Setting Bases and Bearing Plates:
1. Clean concrete and masonry bearing surfaces of
bond-reducing materials and roughen to improve bond to surfaces
<PAGE>
Clean bottom surface of base and bearing plates.
Set loose and attached base plates and bearing
plates for structural members on wedges or other
adjusting devices.
2. Tighten anchor bolts after supported members have
been positioned and plumbed. Do not remove wedges
or shims, but if protruding, cut off flush with
edge of base or bearing plate before packing with
grout.
3. Pack grout solidly between bearing surfaces and
bases or plates to ensure that no voids remain.
Finish exposed surfaces, protect installed
materials, and allow to cure. For proprietary
grout materials, comply with manufacturer's
instructions.
E. Field Assembly:
1. Set structural frames accurately to lines and
elevations indicated. Align and adjust various
members forming a part of a complete frame or
structure before permanently fastening. Clean
bearing surfaces and other surfaces which will be
in permanent contact before assembly Perform
necessary adjustments to compensate for
discrepancies in elevations and alignment.
2. Level and plumb individual members of structure
within specified AISC tolerances. For beams which
support steel joists, maintain such tolerances as
will assure specified minimum joist bearing.
Tolerances shall not be accumulative. Temperature
corrections shall be applied so that the structure
will be plumb and will have clearances specified
at 70 degrees F.
3. Splice members only where indicated on structural
drawings or as accepted on shop drawings.
4. Tighten friction bolts in accordance with AISC by
the turn-of-the-nut method, by the direct tension
indicator or by properly calibrated wrenches.
5. Bearing bolts shall be tightened such that all
plies of connecting material have been brought into
snug contact with a minimum torque of 75 to 100
if-lbs.
F. Erection Bolts: on exposed welded construction, remove erection
bolts, fill holes with plug welds and grind smooth at exposed surfaces.
<PAGE>
G. Comply with AISC Specifications for bearing, adequacy of
temporary connections, alignment, and removal of paint on surfaces
adjacent to field welds. Do not enlarge unfair holes in members by
burning or by use of drift pins. Ream holes that must be enlarged to
admit bolts.
H. Cutting and Fitting: Should any difficulties be encountered,
the Contractor shall request written instructions from the Engineer,
before proceeding with the work. No cutting of sections, either
flanges, webs, stems or angles shall be done without permission of the
Engineer, unless cutting is shown.
I. Touch-Up Painting: All touch-up painting of steel to receive
finish paint shall be by painting contractor. Touch-up of steel not
receiving finish paint is not required.
3.3 QUALITY CONTROL
A. An independent testing and inspection agency shall be
engaged to inspect high-strength bolted connections and
welded connections and to perform tests and prepare test
reports. Testing agency shall conduct and interpret tests
and State in each report whether test specimens comply
with requirements, noting any deviations therefrom.
B. Testing work shall be done under supervision of a registered
engineer. After completion of the work of this Section,
testing agency shall certify that work conforms to
structural drawings. This certification shall bear
registered engineer's seal.
C. Provide access for testing agency to places where structural
steel work is being fabricated or produced so that required
inspection and testing can be accomplished. Testing agency
may inspect structural steel at plant before shipment;
however, Engineer reserves right, at any time before final
acceptance, to reject material not complying with specified
requirements.
D. Correct deficiencies in structural steel work which
inspections and laboratory test reports have indicated to be
not in compliance with requirements. Perform additional
tests, at Contractor's expense, as may be necessary to
reconfirm any noncompliance of original work, and as may be
necessary to show compliance of corrected work.
E. Field Bolted Connections: Inspect in accordance with
AISC specifications. Check at least one bolt on every
connection. Bearing Bolts tightened to a snug fit
condition only require a visual inspection. Friction
bolts require a turn of the nut or calibrated wrench
method inspection.
F. Shop and Field Welding: Inspect and test during
fabrication and/or erection of structural steel.
Certify welders and conduct inspections and tests as
required. Record types and locations of defects found
in work. Record work required and performed to
correct deficiencies. Perform visual inspection of
all welds, and perform ultrasonic tests of full
penetration welds in accordance with ASTM E 164.
END OF SECTION
<PAGE>
SECTION 05210- STEEL JOISTS
95130 030496
PART 1- GENERAL
1.1 RELATED DOCUMENTS
A. Drawings and general provisions of the Contract, including
General and Supplementary Conditions and Division 1
Specification sections, apply to work of this Section.
1.2 DESCREPTION OF WORK
A. Extent of steel joists is shown on drawings, including
basic layout and type of joists required. The work
includes steel joists, bridging, headers, erection bolts
and joist end anchors.
B. Definition: The term "Steel Joists" as used herein includes
not only the applicable Series units as classified by Steel
Joist Institute, but also joist girder units, all as
indicated.
C. Related Work Specified Elsewhere:
1. Section 05120 - Structural steel including loose
individual or continuous bearing plates, and bolts or
anchors for such plates.
D. Work Provided by Others:
1. By the Owner - Payment of costs for testing and
inspection as described herein.
1.3 QUALITY ASSURANCE
A. Standards: Provide joists fabricated in compliance with Steel Joist
Institute (STI) Standard Specifications, Load Tables and Weight Tables for
types of joists indicated, and as herein specified.
B. Qualification of Field Welding:
1. Quality welding processes and welding operators in
accordance with the American Welding Society (AWS)
Standard Qualification Procedure.
<PAGE>
2. Joists welded in place are subject to inspection
and testing. Expense of removing and replacing any
portion of steel joists for testing purposes will
be borne by Owner if welds are found to be
satisfactory. Remove and replace work found to be
defective and provide new acceptable work.
1.4 SUBMITTALS
A. Product Data: Upon Engineer's request submit
manufacturer's specifications and installation
instructions for each type of joist and accessories.
Include manufacturer's certification that joists comply
with SJI Specifications.
B. Shop Drawings:
1. Submit detailed drawings showing layout of joist units,
special connections, jointing and accessories. Include mark,
number, type, location and spacing of joists and bridging.
Provide design calculations and section properties for all joist
girders and for joists with special loading requirements.
2 Provide templates or location drawings for installation of
anchor bolts and/or bearing plates.
3. Shop drawings shall indicate the date of the structural
drawings that were used to prepare the shop drawings.
4. Shop drawing submittals shall consist of a direct reading
transparency plus 2 prints of each drawing.
1.5 DELIVERY, STORAGE AND HANDLING
A. Deliver, store and handle steel joists as recommended in SJI
Specifications. Handle and store joists in a manner to avoid
deforming members and to avoid excessive stresses.
PART 2 - PRODUCTS
2.1 MATERIALS
A. Steel: Comply with SJI Specifications.
<PAGE>
B. Bolts:
1. High strength threaded fasteners shall conform to ASTM
A325.
2. All erection bolts shall conform to ASTM A325.
C. Steel Primer Paint: Comply with SJI Specifications;
asphalt type coating not permitted. Primer paint shall be
compatible with finish coats on architecturally exposed
joists. See Architectural Specification's for additional
requirements.
2.2 FABRICATION
A. General: Fabricate steel joists in accordance with SJI
Specifications. Joists in place shall be capable of resisting
uplift loads as indicated on drawings.
B. Holes in Chord Members: Provide holes in chord members
where shown for securing other work to steel joists; however,
deduct area of holes from the area of chord when calculating
strength of member per AISC Section 1.14.
C. Extended Ends: Provide extended ends on joists where
shown, complying with manufacturer's standards and requirements
of applicable SJI Specifications and load tables.
D. Bridging: Provide horizontal and diagonal type bridging
for open web joists, complying with SJI Specifications. Provide
bridging anchors for ends of bridging lines terminating at walls
or beams. (For joist girders, provide bottom chord bracing as
shown or as required by manufacturer.)
E. End Anchorage: Provide end anchorages to secure joists to
adjacent construction, complying with SJI Specifications.
F. Header Units: Provide header units to support tail joists
at openings in floor or roof system not framed with steel shapes.
G. See Architectural Specifications for surface preparation,
and required primer for compatibility with the final paint
finish. Paint system shall be in strict accordance with
Architectural Paint Specifications.
<PAGE>
H. Identification: Use manufacturer's standard method to
identify steel joists before leaving shop, attached in manner to
be visible alter erection. Show identification code on shop
drawings.
PART 3 - EXECUTION
3.1 INSPECTION
A. Before starting erection of steel joists, verily all bearing
elevations and that minimum bearing tolerances specified by
SJI are provided. Report any discrepancies to the
Architect/Engineer. Do not proceed until corrections have
been made.
3.2 ERECTION
A. General: Place and secure steel joists in accordance with
SJI Specifications, final shop drawings, and as herein specified.
B. Placing Joists:
1. Do not start placing steel joists until supporting
work is in place and secured. Place joists on supporting
work, adjust and align in accurate locations and spacing
before permanently fastening.
2. Provide minimum 2-1/2" bearing for K-series joist on
steel.
3. Provide minimum 4" bearing for K-series joist on
masonry or concrete.
4. Provide minimum 4" bearing for LH and DLH series
joist and joist girders on steel.
5. Provide minimum 6" bearing for LH and DLH series
joist and joist girders on masonry or concrete.
6. Provide temporary bridging, connections, and anchors
to ensure lateral stability during construction. Where open
web joist lengths are 40 feet and longer, install a center
row of bolted bridging to provide lateral stability before
slackening of hoisting lines.
C. Bridging: Install bridging simultaneously with joist
erection, before construction loads are applied. Anchor ends
of bridging lines at top and bottom chords where terminating
at walls or beams.
<PAGE>
D. Fastening Joists:
1. Field weld joists to supporting steel framework in
accordance with SJI Specifications for type of joists used.
Coordinate welding sequence and procedure with placing of joists.
E. Touch-Up Painting For Joist That Receive Finish Coats:
After joist installation, paint field bolt heads and nuts,
and welded areas, abraded or rusty surfaces on joists and
steel supporting members. Wire brush surfaces and clean
with solvent before painting. Use same type of paint as
used for shop painting.
3.3 QUALITY CONTROL
A. An independent testing and inspection agency shall be
engaged to inspect welded connections and to certify that
the work is in accordance with structural drawings.
Testing agency shall conduct and interpret tests and state
in each report whether test specimens comply with
requirements, noting any deviations therefrom.
B. Testing work shall be done under supervision of a
registered engineer. After completion of the work of this
Section, testing agency shall certily that work conforms
to structural drawings. This certification shall bear
registered engineer's seal.
END OF SECTION
<PAGE>
SECTION 05300 - METAL DECKING
PART l - GENERAL
1.1 RELATED DOCUMENTS
A. Drawings and general provisions of the Contract, including General and
Supplementary Conditions and Division 1 Specification sections, apply to work of
this Section.
1.2 DESCRIPTION OF WORK
A. Extent of metal decking is indicated on drawings, including basic layout
and type of deck units required.
B. Related Work Specified Elsewhere:
1. Section 09900 - - Field painting of underside where exposed.
C. Work Provided by Others:
1. By the Owner - Payment of costs for testing and inspection as
described hereinafter.
1.3 QUALITY ASSUAANCE
A. Codes and Standards: Comply with provisions of the following codes and
standards, except as otherwise indicated or specified:
1. MSI 'Specification for the Design of Cold-Formed Steel Structural
Members".
2. AWS Dl.3 "Structural Welding Code"
3. SDI "Design Manual for Floor Decks and Roof Decks".
B. Qualification of Field Welding: Quality welding processes and welding
operators in accordance with AWS "Welder Qualification" procedures of AWS Dl.1.
C. Testing: Welded decking and shear connectors in place are subject to
inspection and testing. Remove work found to be defective and replace with new
acceptable work.
<PAGE>
E. Composite Floor Deck Units: Fabricate deck units with integral embossing
or raised pattern to furnish mechanical bond with concrete slabs. Fabricate open
beam deck units with fluted section having inter locking side laps; of metal
gauge and depth as shown.
2.4 ACCESSORIES
A. Roof Sump Pans: Fabricate from single piece of 14 gage galvanized sheet
steel with level bottoms and sloping sides to direct water flow to drain.
Provide sump pans of adequate size to receive roof drains and with bearing
flanges not less than 4" wide. Recess pans not less than 4" below roof deck
surface, unless otherwise required by deck configuration. Holes for drains will
be cut in the field.
B. Metal Closure Strips: Fabricate metal closure strips, for openings
between decking and other construction, of 13 gage sheet steel. Form to provide
tight-fitting closures at open ends of flutes and sides of decking.
C. Provide metal pour stop at all edges of concrete construction (including
floor openings) except where edge angle is detailed. Pour stop shall be of gage
as recommended by manufacturer for specific conditions with a minimum of 20
gage.
2.5 SHOP PAINTING
A. Chemically clean and phosphate treat (nongalvanized) metal roof deck
units and accessories, and apply 1 coat of paint baked-on by manufacturer's
standard method. Paint primer shall be in strict conformance with architectural
specifications.
PART 3 - EXECUTION
3.1 INSTALLATION
A. General: Install deck units and accessories in accordance with
manufacturer's recommendations and final shop drawings, and as specified herein.
B. Placing Deck:
1. Place deck units on supporting steel framework and
adjust to final position with ends accurately
aligned and bearing on supporting members before
being permanently fastened. Do not stretch or
contract side lap interlocks.
<PAGE>
2. Coordinate and cooperate with structural steel
erector in locating decking bundles to prevent
overloading of structural members.
3. Do not use deck units for storage or working platforms
until permanently secured
C. Fastening Deck:
1. Fasten deck units to steel supporting members by welding
as noted on drawings.
2. Comply with AWS requirements and procedures for
manual shielded metal arc welding, appearance and
quality of welds, and methods used in correcting
welding work. Use welding washers where indicated
on drawings.
3. Mechanically fasten side laps of adjacent deck units as
noted on drawings.
D. Cutting and Fitting: Cut and neatly fit deck units and
accessories around other work projecting through or
adjacent to the decking, as shown.
E. Reinforcement at Openings: Provide additional metal
reinforcement and closure pieces as required for strength,
continuity of decking and support of other work shown.
F. Roof Sump Pans: Place over openings provided in roof
decking and weld to top decking surface. Space welds not
more than 12" oc with at least one weld at each corner.
G. Hanger Slots or Clips: The use of hanger slots or clips to
receive hangers for support of ceiling construction, air
ducts, diffusers or lighting fixtures, is not permitted.
H. Closure Strips: Provide metal closure strips at open
uncovered ends and edges of decking, and in voids between
decking and other construction. Weld into position to
provide a complete decking installation.
I. Touch-Up Painting: Alter decking installation, wire brush,
clean and touchup scarred areas, welds and rust spots on
top and bottom surfaces of decking units and supporting
steel members. Use same type as shop paint.
3.2 QUALITY CONTROL
<PAGE>
100295 STRUCTURA~5S1T20EEL9 F
A. An independent testing and inspection agency shall be
engaged to inspect deck installation including deck
welding, and to certify that the work is in conformance
with Contract Documents.
B. Inspection work shall be done under supervision of a
registered engineer. After completion of the work of this
Section, testing agency shall certify that work conforms
to Contract Documents. This certification shall bear
registered engineer's seal.
END OF SECTION
<PAGE>
<TABLE>
<CAPTION>
PC-38
- ----------------------------------------------------------
- ----------------------------------------------------------
<S> <C> <C> <C> <C>
Area 1: (Tower I): $ 1,049,222.0O $ 73,00000 $ 7,778.00 $1,130,000.00
Includes Walmart, BJ's and Home Depot
- ----------------------------------------------------------
- ----------------------------------------------------------
General Conditions $ 100,00000 $ $ 100,000.00
- ----------------------------------------------------------
- ----------------------------------------------------------
Area 2: (Phase I) includes column lines 1 - 28 inclusive. $ 3,683,894 $234,000.00 $ 18,106.00 $3,936,000.00
- ----------------------------------------------------------
- ----------------------------------------------------------
General Conditions $ 300,000.00 $ - $ - $ 300,000.00
- ----------------------------------------------------------
- ----------------------------------------------------------
Area 3: (Phase II) Includes column lines 28-45 inclusive. $ 2,441,88400 $ 180,00000 $ 12,11600 $2,634,000.00
- ----------------------------------------------------------
- ----------------------------------------------------------
General Conditions $ 100,00000 $ - $ - $ 100,000.00
- ----------------------------------------------------------
- ----------------------------------------------------------
TOTALS: $ 7,675,000 GO $ 481,00000 $ 38,000 GO $8,200,000.00
- ----------------------------------------------------------
</TABLE>
<PAGE>
U.S. BRIDGE OF N.Y., INC. PALISADES P0WER MALL:
May 29 1996
UNIT PRICES E-076(S)
Revision I - 5/24/96
Revision 2 - Added price 5129/96
<TABLE>
<CAPTION>
<S> <C> <C>
Floor Deck Erection $ 0.58 Per Sq. ~.
Roof Direct Erection S 0.15 Per Sq. Ft
Joint Erection $125.00 Per Piece
-------
Steel Erection $268.00 Per Ton
-------
Precast Column Erection $300.00 Per Piece
Added X. Brace Erection s790.00 Per X Brace (wind brace 2 pcs. Angles)
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C>
Hourly Rate
Standard Overtime
Foreman $ 80.00 Per Hour $115.00 Per Hour @ Ii
----------- -----------
Crane & Operator $225.00 Per Hour $420.00 Per Hour @ D.T.
----------- -----------
Welder S 85.00 Per Hour $125.00 Per Hour @ 11/2
--------- --------
Iron worker S 77.50 Per Hour S~10.00 Per Hour 1 1/2
--------- --------
</TABLE>
Shear Stud $1.30
Roof Frame lnstallation 250.00
(HVAC Unit Frame)
Roof Drain Frame)
<PAGE>
U.S. Bridge of N.Y., Inc.
[Graphic]
<PAGE>
U.S. Bridge of N.Y., Inc.
[Graphic]
<PAGE>
EXHIBIT "G~ - CERTIFICATE OF INSURANCE
PC-38
Contractor acknowledges and agrees that they will provide to EklecCo an
original Certificate of Insurance with all terms in accordance with the attached
Sample Certificate of Insurance no later than Wednesday, June 19,1996.
<PAGE>
[Graphic]
<PAGE>
EKLECCO
HOW TO GET PMD
FIRST PAYMENT:
1. Included in the Contract is a sample of the "Contracror Requisition for
Payment Form", annexed as Exhibit N, which you will use to invoice each month.
This sample form will contain the "Schedule of Values" for the Scope of Work to
be completed.
2. Within ten (10) days afier execution of the Contract, you will receive an
actual "Contractor's Requisition for Payment Form" completed with the Schedule
of Values which were agreed to in the Contract. You should fill-in the values
completed to date, percent completed to date and the gross amount claimed due
with cash requisition. Return to EklecCo ("EkiecCo") by the 25th of the month
for processing.
3. Be certain that an authorized officer of the company signs and has the
signature notarized. In addition, if an architect's or engineer's certification
or approval is required, be certain that this is also done. The submitted
Requisition constitutes Contractor's sworn certification of the amount and value
of Work it claims it has completed to the date of the Requisition.
4. This Requisition will be reviewed and processed by EklecCo personnel.
5. Along with each payment check, EklecCo will prepare a "Contractor Waiver of
Lien" form. This form must be signed and notarized prior to EklecCo releasing
your check on or about the 15th of the month.
6. Additional amounts added to the Requisition will be paid for the Work
completed, ONLY if a Change Order, in compliance with Section 4.2.1 of the
Contract, has been executed.
7. Any time the 25th falls on a weekend or holiday, the due date for "Contractor
Requisition for Payment Form" will be the next business day. Likewise, the due
date for checks will be the next business day if the 15th falls on a weekend or
holiday.
NEXT AND EVERY ADDITIONAL PAYMENT:
1. Prior to the 25th of each month, you will receive from EklecCo a new
"Contractor Requisition for Payment Form". The form will show current contract
values, as well as prior payments.
<PAGE>
2. You will need to fill in the blank Requisition form and then the cycle
described above will start again.
FIRST RETAINAGE PAYMENT:
1. Prior to issuance of the first Retainage payment on the Contract, Contractor
must sign and submit a "Job Completed Memorandum of Understanding", a "Written
Guarantee" and a completed "Punch List" to be signed by an authorized EkiecCo
representative. The first retention payment cannot be requested at the same time
as the final payment. EklecCo will not issue the "Contractor Requisition for
Payment Form" for retention payment. Please request retention on your o~vn
invoice form, showing project, contract number, scope of work, date completed
and amount requested.
R E M E M B E R ~
1. YOU MUST NAVE YOUR REQUISITION FILLED OUT, SIGNED, NOTARIZED AND IN EKLECCO'S
HANDS AT THE ADDRESS STATED BELOW BY 4:00 PM, THE 25TH OF THE MONTH, IN ORDER TO
BE PAID ON THE 15th OF THE FOLLOWING MONTH.
2. PAYMENT WILL BE MADE ONLY ON CHANGE ORDERS IN COMPLIANCE WITH SECTION 4.2.1
OF THE CONTRACT AND TIMELY SUBMITTED BY THE 25TH OF THE MONTH.
3. YOU MUST SIGN AND HAVE NOTARIZED THE "CONTRACTOR'S WAIVER OF LIEN" FORM AND
ALL RELATED DOCUMENTS PRIOR TO RECEIVING YOUR CHECK.
4. ONLY ORIGINALS WILL BE ACCEPTED. FAX COPIES WILL NOT BE ACCEPTED.
Mail to: EklecCo
4 Clinton Square
Syracuse, New York 13209
Attn: Financing Department
Questions should be addressed to EklecCo at the above address
or phone (315) 422-0090.
<PAGE>
PARTIAL PAYMENT RECEIPT, GUARANTEE AND
WAIVER OF RIGHT TO FILE LJEN
CONTRACT NO:
CONTRACT DATE:
CONTRACT SCOPE:
PROJECT:
REQUISITION DATE:
PAYMENT DATE:
FROM:
TO:
Original Contract Amount Total Contract Adjustments to Date Revised
Contract Amount to Date
Amount Paid to Date Including this Payment Total Net Amount Paid to Date
The undersigned Contractor, Subcontractor or Supplier hereby acknowledges
receipt this date of _______________ and the aggregate payments received to date
as stated above.
The undersigned hereby certifies that the amounts set forth above are true and
correct. The undersigned also represents, warrants and certifies that: all of
its employees, Suppliers and Vendors have been paid all amounts which are due
and owing as of the date hereof, that there are no liens filed and/or lien
rights claimed by any Suppliers, Vendors or Subcontractors; and all necessary
executed lien waivers and/or releases have been obtained by Contractor.
In consideration for the amount paid to the undersigned to date, on account of
all Work, labor, equipment, material or services furnished or performed pursuant
to the above Contract and relating to EklecCo and the Project, the undersigned
WAIVES and RELEASES, to the extent allowed by Law, all liens or rights of liens
the undersigned now has or may be entitled to claim or assert, arising from or
in any way relating to the Work to date in connection with Contract No. as of
the date of execution of this instrument.
The undersigned hereby CERTIFIES that;
1. For the period above, the Contractor or its Supplier and/or
Subcontractors performed no Work on the Project beyond the Scope of
Work set forth in the Contract or for which Contractor or its Suppliers
and/or Subcontractors are or may be entitled to claim additional
compensation from EklecCo, nor did Contractor or its Suppliers or
Subcontractors make any changes in, or additions to the Work to be
performed and material to be furnished or installed by the Contractor
under the Contract, and
<PAGE>
[Graphic]
<PAGE>
EXHIBIT "J"
COST BREAKDOWN
This document may be requested from EklecCo's Construction Lender at a later
date, and Contractor understands that they may be required to supply such
information.
<PAGE>
EXHIBIT "K"
ASSIGNMENTOF PROJECT DOCUMENTS
This document may be requested from EklecCo's Construction Lender at a later
date, and Contractor understands that they may be required to supply such
information
<PAGE>
EXHIBIT "L
CONSTRUCTION CONSENT FORM
This document may be requested from EklecCo's Construction Lender at a later
date, and Contractor understands that they may be required to supply such
information
<PAGE>
[Graphic]
<PAGE>
MEMORANDUM
TO: E-0765 File: Steel Erection
FROM: Jason Teller
DATE: June 12, 1996
RE: A meeting between Ron and Joe Polito of US Bridge of New York, Inc.
ATTENDEES:
EklecCo: Jason Teller
Pete Teller
Jim Bold
Mike Barney
Pete started the meeting by explaining that prior to this award we wanted to go
through a few additional issues. We may have covered some of those issues
already and some may not have been, but we just wanted to clarify them. Once
discussed, Jason will dictate a memorandum and this memorandum will be an
exhibit to the contract should we award to US Bridge of New York, Inc.
The first issue was the union situation. US Bridge of New York, Inc. is a union
contractor and Pete Teller stated that we do not want any problems on the site,
EklecCo does not want disharmony. EklecCo has no problem with US Bridge of New
York, Inc. functioning as a union contractor, but did not want any problems with
any of the other contractors on the site. For example, if US Bridge of New York,
Inc. has a master mechanic on site, this will not effect any other contractors
working there. This is not a union job, it is an open shop with a prevailing
wage agreement. If there were any union trouble makers on the site, we would
expect them to be removed. Joe Polito responded, "My workers on the site are
iron workers, not organizers, so we will remove them if necessary. Joe also
added, There will be a two gate system in place if needed and my workers will
honor a two-gate system and continue to work if necessary because my workers
will use it if there are pickets."
Pete Teller then explained he thought it was a good time to bring up the
prevailing wage agreement that EklecCo has signed with the unions. The unions
and EklecCo have agreed to work in harmony. Pete Teller stated that if the
unions were to picket this job for any reason, it would then void this
prevailing wage agreement. Joe responded, ~l know how the agreement was put
together."
Pete Teller then asked Mike Barney to review his discussions on flexibility and
schedule, realizing we have covered it several times but also this morning. Mike
explained that due to possible land problems in Phase lit may be necessary to do
some of the erection, possibly area 7 and area 8, out of sequence or at a later
date.
Joe Polito agreed that they had discussed this earlier and whatever
<PAGE>
areas that EklecCo needs US Bridge of New York. Inc. can adjust the timing
on areas 7 and 8. He can do the other areas out of sequence as long as the
fabricator can supply his two cranes that he will have in each area Joe also
stated, "If necessary, we would shut down the cranes and remobilize
Joe Polito then brought up the roadways he is expecting to see Out on the site.
He needs two stripes down the pad. I noted that the entire building pad has a
3.5' lift of stone, geogrid, and fabric serving as a construction mat and this
should be sufficient. Pete Teller brought up the soft area that we recently
encountered near Tower 3, where the mud wave occurred, and that it would be a
good idea to avoid this area when erecting. Joe Polito stated, "That is what
Mike Stewart does out on the site and we can work around it."
Pete Teller then asked Jim Bold to review the shift work that was negotiated
earlier today for Tower 1. Jim explained that basically the agreement was that
US Bridge of New York, Inc. would employ two seven hour back to back shifts each
day and that they would have a make up day on Saturdays. This agreement went for
iron workers as well as operators. Saturdays will serve as a rain day make up.
This allows us to accelerate the Tower 1 schedule beyond what is shown in the
contract schedule but we are unable to ascertain the effect it will have on the
schedule at this point. Joe Polito agreed with this assessment. Joe stated, "I
can only agree to durations at this point for schedule. Only after I meet with
the foundation contractor, fabricators, and see the site progress can I nail
down the exact dates."
Pete Teller thought it was a good time to bring up the contract administrators
that EklecCo has out in the field are basically out there to administer the
contract. They really do not have a tremendous amount of knowledge of
construction, so EklecCo is relying heavily on US Bridge of New York, Inc. as
experts in the steel erection area." Joe stated, "I understand".
Pete Teller stated, ~l hope that I can say with a straight face that US Bridge
of New York, Inc. has had adequate time to review the drawings as the
negotiations have been going on since March." Everyone laughed and Joe Polito
responded, "Yes, we have had plenty of time and we know the drawings very well."
US Bridge of New York, Inc. has had plenty of time to review the plans, accepts
them, and are comfortable with the plans. Joe Polito asked about the survey on
the site, what would be provided. I explained to Joe Polito that EklecCo has
provided a benchmark and two column lines that intersect at one column point.
The foundation contractor then takes it to do all of his layout that US Bridge
of New York, Inc. will then survey and continue. US Bridge has been told that
the responsibility for the survey is theirs and the responsibility for the
anchor bolts is handed from the foundation contractor to them and it is US
Bridge of New York, Inc.'s responsibility to review and accept them if they are
correct or work out any problems directly with the foundation contractor.
<PAGE>
1
MEMORANDUM _____
An EklecCo Project
TO: Joe Polito, Ron Polito, Mike Stewart
Peter Teller, Jason Teller and Dave Mistretta
FROM: Tom Valenti
DATE: June 18, 1996
RE: U.S. Bridge - PC-38
Steel Erection
We are sitting with Joe & Ron Polito and Mike Stewart of U.S. Bridge. Jason
Teller, Peter Teller and Dave Mistretta of EklecCo and Tom Valenti is dictating
the memo, but everyone understands they can jump in at any point and make a
correction or addition or subtraction. When we started out this morning Mike was
not able to be with us because he was on another job. Ron and Joe were kind
enough to wait until 12:00 p.m. to get started. I was late even for that
appointment. I explained to Joe, Ron and Mike that this was my only project and
that I had invested ten years of my life in it. I further explained that if we
were to sign with U.S. Bridge we would be paying more than we would for another
contractor and we had to make sure that we had their full commitment. I stated
that it was especially important to have Mike, U.S. Bridge's superintendent at
the meeting.
During some light conversation, we got some unfortunate news and found out that
Ron could have been a doctor but chose to be a steel erector and we are
questioning his entire decision making process and everything he has said so far
today, we are not sure if it is true. Of course we are kidding. Joe's background
is as a civil engineer and so is Ron's. Joe got in the steel erection business
in the late fifties and has had several companies and, his latest U.S. Bridge,
is a publicly owned company. Joe well understands the problems with the banking
industry today and that was one of the reasons he went public. Going public made
it much easier for him to raise capital.
I explained to Joe that one of our problems is that since 1991, the banks and
real estate developers have a little bit of a different relationship than they
did in the 1980v5 and the banks are not so liberal anymore with change orders.
In addition I explained to Joe, that we were looking
<PAGE>
at this to be a no-change order job. Joe stated that he has looked at the plans
and doesn't see any problems with the plans. He looks at this as a repetitive
job that is no problem and doesn't see the need for any change orders. Of course
the exceptions to that would be if there were any material tenant changes.
Mike who has been with Joe since 1968, is going to be the supervisor on site, he
will be here everyday. Mike runs the job from top to bottom. Basically he builds
the job first on paper. One of the things Mike said was that as soon as possible
he needs Derrick plans so that he can get his schedules together. He showed us
an example of the schedule that he produces for the erection procedure. In
effect, he puts the project together on paper from beginning to end. Mike says
that he likes to keep guys doing one kind of work for a period of time so that
they improve on the job. That gives him an opportunity to determine whether or
not he has any bad eggs. Joe stated that they have a mule driver named Mario who
comes in and determines whether or not people are working up to par and if not
Mario fires them. Joe stated that typically they fire and rehire about 20% of
the work force. Mike stated that the biggest issue for him is making sure that
he gets sequencing down correctly and as he said earlier getting the plan down
on paper so that the job proceeds smoothly. Mike also said he works very well
with other trades, union and non-union. He said that he would rather cooperate
than fight.
The next thing we talked about was coordination. Joe understands that we are
dealing with two fabricators, a deck supplier, and a joint supplier, and also a
supplier of precast columns. Joe says that U.S. Bridge will take the
responsibility for all coordination with those suppliers, such that, U.S. Bridge
will be sending shipping lists to the fabricators stating the pieces that they
need and the rough schedule that they need them from beginning to end. Joe
stated that Dave will be copied on all of the correspondence.
Mike will also be at the morning meeting every morning with the other
contractors. Mike also requested, and Jason and Peter agreed, that both
fabricators should be at the morning meetings. Dave agrees and he will see to it
that they are present. Joe stated that they are used to dealing with the
fabricators and often times they have a job where they will be the fabricators.
He said that this job will be treated in the same manner. Joe stated that in
looking at potential problems that can come up with the fabricator that minor
mistakes would be handled by U.S. Bridge in the field such as where there is a
mispunched hole in a piece they would either cut in another hole or rough hang
it. He stated that he cannot take the financial responsibility for major
problems, but will take the responsibility for making sure the fabricator
corrects any major problems. Overall Joe understands that U.S. Bridge is going
to take overall responsibility for making sure that the fabricator gets the
steel On-site in the proper sequencing and at the proper time.
Joe stated that he needs a hammer in order to enforce that the fabricator
produces on time and properly. Pete said that we would have U.S. Bridge put
together a schedule and have everybody
<PAGE>
including the fabricators agree to it and then after that if the fabricators
were off schedule, U.S. Bridge could impose penalties on the fabricators that
are stated within our contract with the fabricators. EklecCo will empower U.S.
Bridge to impose the penalties on the fabricators if they do not live up to
their obligations.
Again we talked about the fact that we were looking at this as a no-change order
job. Again Joe reiterated he didn't see any reasons for change orders and
further said that he was the expert and we were not and we were also looking for
a no problem job. (Joe said that I was the one who said I wasn't an expert and
I'm willing to testify in court that I am not.)
We talked about the fact that there was going to be a potential for relocating
X-braces. Joe said that as long as we were moving the X-braces prior to
installation that wasn't a problem. Other more significant changes that would
result because of a material change from a tenant or a change that we make would
result in a change order.
We talked about flexibility and the fact that often with a retail development
there are situations that result either because of government, a lender, or a
tenant, that might require priorities changing from one area to another. Joe did
not believe that was going to be a problem. We also talked about the potential
for slow downs. Joe believed that slow-downs were a problem and that rather than
slowing down he would rather stop he stated that there would not be a problem if
we had to stop for a week and then come back.
We then talked about the start-up and Joe stated in talking to the Tower 1
foundation contractor it looked like there was a problem that would result in
not being able to start until two weeks from Wednesday. On further discussion
about this we have concluded that by the middle of next week the precast columns
could start in the middle of the building and we were going to see if we could
further affect the foundation contractor to make that start date move up.
Not later than Monday the Tower 1 delivery list for the fabricator would be
prepared. Ron talked about doing that in pieces and getting parts of that
fabrication & shipping list done sooner. The list that would be ready on Monday
would be just for Tower 1 and the rest of the job would go in sequence building
by building based on EklecCo's schedule. Joe talked about the fact that he would
like to have sixty men on the job as optimum in terms efficiency. He said that
works well with the unions having giving them the concession on the "four tens"
and the make up day on the fifth day.
In that regard we talked about past memos and Joe said that the commitments that
were made in the prior memos were still all good except the only issue in one of
the previous memos dealt with shift work and that would have to change. Joe
feels that doing it this way would work better because he feels that working
with the sixty men would be a lot better than working with one
<PAGE>
Joe would like to thank us for the job. I reminded him that I didn't sign it
yet. hundred and twenty because of the time it would take to build up to one
hundred and twenty.
We talked about schedule and Mike stated that they were looking at something
between a six to an eight week schedule with the last two weeks being "clean up"
without the crane (X-bracing, etc.), but Mike needed the Derrick plans in order
to finalize this. Jason said that the drawings would get out to them as soon as
possible along with a list of contacts from the suppliers. Joe stated that if we
needed an extra rig as long as they got a weeks worth of work out of the rig,
there would be no problem providing the extra crane. Joe stated that he had
spoken to the site contractor and Joe and Mike were aware of site conditions.
Joe said that certainly the Tower 1 area presented no problem and he was aware
of the site conditions out on the rest of the property and that he understood
that there was a soft spot that could be worked around in the Tower 3 area. I
mentioned I wanted to make sure that we were not going to be hit for extras for
matting or other problems related to the site conditions. Joe said that he
didn't see that as a problem. Joe stated that he will coordinate with the site
contractor and be able to work around the site contractor and with the site
contractor. They have already had discussions with the site contractor and both
Mike and Joe think that he is doing a very good job and believe that they can
work with them.
Joe also understands that we may have a timing problem with the lumber yard and
agrees that they might have to come back and complete the steel erection on the
lumber yard properly.
As far as weather is concerned if it becomes an issue in later months in
November the contract provides for a make-up day when weather does not permit
them to work. Joe educated me that you can't do iron work in the rain or the
snow at all.
We talked a little bit about the union situation, Joe says that he has been
having good cooperation from the operators and the iron workers and his men
should be no problem in terms of working along with non-union contractors.
<PAGE>
PRIVILEGED & CONFIDENTIAL
COMMITMENT
MEMORANDUM
TO: Steel Erection File
FROM: Chris Montrose
DATE: May 31,1996
RE. Meeting with US Bridge and EklecCo
Present from US Bridge via teleconference are Vice President, Ron Polito,
President, Joe Polito and on Site Supervision, Mark Stewart. Carolyn Frani and
Chris Montrose are present from EklecCo US Bridge representatives understand
that they can interrupt the dictation of this memorandum at any time to make any
additions and/or changes to the dictation.
I started the meeting out by explaining to US Bridge that EkelcCo is obtaining a
Commitment Memo form the top three bidders for steel erection. Once the memos
are complete they are presented to the group along with the bids. U.S. Bridge
understands the Commitment Memo is evaluated seriously by the group in order to
determine who will be awarded this Contract.
I next asked US Bridge, putting price aside what can they offer EklecCo for the
erection of steel that would convince EklecCo to award the steel erection
contract to them? Joe Polito stated ~We are committed to service and
coordination. We will handle all of the coordination for this Project." Joe also
stated, "We have access to our own men. I have guys set up from Canada currently
and I also have men from the local unions." Joe continued by stating, -~ am the
co-chairman of the union funds in the area
Joe stated, "If awarded this job, I would have Mike Stewart set up an Advance
Shipment List which would be given to our fabricators." Joe stated, "We divide
the building up into subdivided areas and we basically build the building on
paper to give to the fabricator."
Joe stated, "We continually check with the fabricator to make sure that he will
be able to meet the schedule that we have given them. We order the steel from
the fabricator."
I asked Joe, Ron and Mike about their coordination with the fabricator and how
would they handle any possible field conflicts. Joe stated. "We will coordinate
very closely with the fabricator and detailer to get the job done in a fast
time."
<PAGE>
Joe wanted to add to the memo, that he has requested if they are awarded this
project that they want an immediate meeting with our fabricator and the detailer
so they can be brought up to speed and put on the same page as one another and
work together harmoniously.
I explained to US Bridge that we have Contract Administrators on site and have
no Construction Managers or General Contractors. I also explained that our
Contract Administrators have no previous construction experience, and this was
done purposely, so their opinions are unbiased. I asked US Bridge how they would
handle filling in any gaps that would develop on site due to this condition. Joe
stated, "We will coordinate with the other trades. We will also copy the
Contract Administrators on any of the information that develops between this
coordination to make them aware of what is happening.~ Joe also stated,- We are
ready and willing to take on this responsibility." I explained to Joe that we
have a morning meeting every morning at approximately T30 and at least one
representative from each Scope of Work attends that meeting to put any issues on
the table that they may have to coordinate the overall Project. Joe stated,
"This would work good for us." He also said that they have a surveying crew that
will continually be on site and one member from the survey crew will attend the
meeting along with Mike Stewart.
I next explained to US Bridge, that if EklecCo were to hire their company, it
would be because of their expertise. EklecCo, as the Developer, looks to the
people we hire to have all of the expertise. Joe stated, "The main thing we have
to offer is our expertise. I have been trying to get this across for the past
two months. One of our strongest suits is coordinating and getting the entire
package together using our expertise." Joe then wanted to add, "The expertise is
used best in the early part of the Project when the fabricator, detailers and
erectors meet to get everyone on the same page and start the coordination
process on the right foot."
I next asked, "What is the last mall project that US Bridge worked on?" Joe
stated, "It was the Concourse Plaza, and we used three cranes on this project
and erected approximately 5,000 to 6,000 tons of steel." Joe stated, "We have
built numerous buildings in the past and I have been in the business since 1956
and opened my own business in 1966, so I have a lot of experience under my
belt."
I next told Joe since he has worked on many projects in the past, he understands
that flexibility is key in any project. Joe stated, "You have to be flexible. As
long as the steel is not missing in the building and access is still available,
we will be able to move around at your direction and be very flexible".
If for some reason the Scope of Work changes and a Change Order becomes
necessary, US Bridge is not to go ahead with any work without written
authorization. Joe stated "we use what is called a DAN form. Which is a
notification form given to EklecCo which shows any changes that have evolved,
and if they affect or do not affect our project, we even flag any drawing
changes and make EklecCo aware of the changes."
In closing I asked US Bridge if they could sum up their overall commitment to
us. Joe stated, "We are very, very interested in getting this work. We are the
people for this Project. We are willing to give a full commitment for this work
and do the best job for you.
<PAGE>
Scope of Work
Structural Steel Erection for the Palisades Center
Contractor shall furnish and install all, but not limited to, necessary and
appropriate labor, materials, equipment, supervision, coordination,
mobilization, and taxes necessary to erect the structural steel for Palisades
Center as per plans and specifications.
1. Contrac~or shall be responsible for all coordination with the structural
steel fabricators, detailers, joist and deck suppliers, structural engineer,
foundation contractors, precast column suppliers and all other contractors that
affect the structural steel erection scope of work.
2. Contractor shall be responsible to coordinate and schedule all
deliveries of the structural steel elements that are necessary for the
structural steel erection scope of work.
3. Contractor agrees to provide, all but not limited to, erection bolts,
shear studs, welding material, etc. necessary to complete the structural steel
erection scope of work.
4. Contractor agrees to install all pour stop, deck closure, metal decking.
and shear studs as necessary and indicated on the Contract plans.
5. Contractor has provided a deduct price for the erection of areas 7 and 8
of $957,000.00 if EklecCo elects not to erect this portion of work.
6. Contractor agrees to provide all necessary matting for the safe
operation of a crane if necessary
7. Contractor has included in his lump sum contract price the coordination
and erection of all precast columns.
8. Contractor has included the erection of the joist, joist girders, and
bridging as shown on the contract plans.
9. Contractor agrees to examine all delivered materials prior to accepting
them to ensure that they are in proper condition after shipping and report any
discrepancies in writing directly to the suppliers.
10. Contractor agrees to coordinate all necessary testing and inspection
and accommodate all scheduling necessary for any owner, state, local, or federal
inspections as may be necessary.
11. Contractor understands that the intent of this contract is a 100% turn
key erection package for Tower I and the entire mall.
<PAGE>
X YES __ NO (ii) Contractor will be held to highest standards
X YES __ NO (iii) EkiecCo's rights on Contractor's failure to satisfy ( ),
including liquidated damages (2.2.3) Supplementation (2.2.3(a)) and termination
(2.4.1)
X YES __ NO (F)RISKS TO CONTRACTOR OF LUMP SUM BID (2.6)
X YES __ NO (G) TIME OF THE ESSENCE FOR COMPLETION OF THE WORK (3.1)
X YES __ NO (H) MODIFICATIONS TO THE WORK
(i) By written agreement in advance only (4.0)
(ii) Basis for payment (4.1.2)
(I) CONTRACTOR'S REPRESENTATION
X YES __ NO(i) Experience and capacity (5.2(a))
X YES __ NO(ii) Financial Solvency (5.2(b))
X YES __ NO(iii) Quality of Work (5.1)
X YES __ NO(iv) Compliance with all laws (5.2(c))
(J) PAYMENT PROCEDURE
X YES __ NO(i) Timing (7.2.1)
X YES __ NO(ii) Requisition documents (7.8)
X YES __ NO(iii) Payment (or part) withheld (7.3.1, 7.32, 7.4, 7.5)
X YES __ NO (K) FINAL ACCEPTANCE AND PAYMENT (Art. 8)
X YES __ NO (L) INSURANCE AND PAYMENT (Art. 9)
X YES __ NO (M) IDA PROJECT/SALE AND USE TAX EXEMPTION (Art. 10)
X YES __ NO (N) LEGALLY BINDING CONTRACT/STRICTLY ENFORCED
<PAGE>
DISCUSSION
1. Purpose of Meeting and Memorandum:
2. Nature and Content of Contract:
<PAGE>
Read and Understood Agreed:
Contractor Date
EKLECCO Date
<PAGE>
NOTICE TO PROCEED
DATE: June 12,1996
PROJECT: Palisades Center
CONTRACTOR: U.S. Bridge of New York Inc.
CONTRACT NO.: PC-38
CONTRACT AMOUNT: $8,200,000
CONTRACTOR SHALL PROCEED WITH ITS WORK IN ACCORDANCE WITH AND SUBJECT TO THE
ABOVE CONTRACT UPON RECEIPT OF THIS NOTICE TO PROCEED.
Dated:
Thomas J. Valenti, Partner
SUBCONTRACT AGREEMENT
STRUCTURAL STEEL/METAL DECK/SELECTIVE DENIOLITION
TRADE CONTRACT
BETWEEN LEHRER McGOVERN BOVIS, INC.
&
U.S. BRIDGE OF NEW YORK, INC.
GRAND CENTRAL TERMINAL RESTORATION
RETAIL AREA
<PAGE>
Agreement made this 15th day of May 1996 by and between LEHRER McGOVERN BOVIS,
INC., with an office at 200 Park Avenue, New York, New York 10166 herein
"Contractor") and US Bridge of New York Inc. with an office at 53~9 97th Place
Corona. New York l 1368 herein "Subcontractor"). The Owner is Metro North
Commuter Railroad , with an office located at 347 Madison Avenue. New York NY
10017 herein "Owner"). The Developer is Grand Central Terminal Venture. Inc.,
with an office located at 220 East 42nd Street New York NY 10017 herein
Developer"). Contractor has been engaged by Developer regarding the construction
of a project generally described in Paragraph 1 hereof (11erein the "Project").
Contractor herewith engages Subcontractor to perform the work generally
described in Paragraph 3 hereof and Paragraph 1 10 of the General Conditions
attached hereto herein, collectively, the "Work"). Subcontractor hereby agrees
to perform the Work in accordance with all the documents set forth in Paragraph
5 hereof (11erein the "Contract Documents").
1.
The Project is the Grand Central Terminal Restoration I Retail at a site located
at Grand Central Station New York.
2. The "Architect/Engineer" is the firm of Beaver Blinder Belle 41
East l Th Street New York NY 10003 I Goldman Coneland
Associates Ii West 19th Street New York NY 10011
The Subcontractor shall provide and furnish all labor,
materials, tools, supplies, equipment, services, facilities,
supervision, administration, and all the items required by the
Contract Documents for the proper and complete performance and
acceptance of the following Work in strict accordance with the
Contract Documents:
Structural Steel Metal Deck Selective Demolition Work for Retail
4.
The Subcontractor shall be paid for the Work the sum of Three Million Three
Hundred & Nine Thousand & Thirty-three DOLLARS (S 3 309 033 00 I herein the
"Contract Price"). payment SHALL BE MADE ONLY FROM FUNDS ~HICH CONTRACTOR HAS
ACTUALLY RECEWED IN HAND F~OM THE DEVELOPER AND DESTGNATED BY DEVELOPER FQR
DISBURSE~NT TO SUBCONTRACTOR. SUBCONTRACTOR AGREES TO LOOK SOLELY TO SUCH FUNDS
FOR PAYMENT. SUBCONTRACTOR ~~~ERSTANDS AND AGREES THAT CONTRACTOR SHALL HAVE NO
LIABILITY OR RESPONSIBILITY FOR ANY REASON WHATSOEVER FOR ANY AMOUNTS DUE OR
CLA~ED TO BE DUF TO SUBCONTRACTOR EXCE?T TO THE EXTENT THAT CONTRACTOR ~AS
ACTUALLY RECEIVED FUNDS FROM DEVELOPER SPECIHCALLY DESIGNATED FOR DISBURSEMENT
TO SUBCONTRACTOR STIBCONTRACTOR ACKNOWLEDGES THAT CONTRACTOR HAS MADE NO
REPRESENT~ONS OR WARRANTIES REGARDING DEVELOPER'S FTNANCTA~. ABILITY TO PERFORM
THE SUBCONTRACTOR REPRESENTS THAT IT HAS INSPECTED THE PROJECT AND HAS S~SFIED
ITSELF AS
<PAGE>
TO THE CONDITION THEREOF AND THAT THE CO~CT PRICE TS JUST AND
REASONABLE CONIPENS~ON FOR ALL THE WORK AND FOR The SUBCONTRACTOR'S
ASSUMPTION OF THE RISK OF ALL FORESEEN AND UNFORESEEN RISKS HA7ART)S.
AND DWFTCULTIES TN CONNE~ON with TFTF
PERFORMANCE OF THE WORK.
5. The Contract Documents, sometimes hereinafter referred to collectively as the
"Contract", are listed below and shall constitute the Contract.
This Subcontract
General Conditions
- Special Conditions
- The Drawings and Specifications listed on Exhibt A Exhibit B (general
scope of Subcontractor's Work) consisting of pages
Exhibit C (Insurance Requirements) consisting of five pages
exhibit D (Unit Prices) consisting of 3 pages (Note: the setting forth of
unit prices shall not be construed to require Contractor to engage Subcontractor
to perform the work for which unit prices are listed)
Exhibit E (Alternates) consisting of page
- Exhibit F (Bonding Requirements and Sample Bond Forms) consisting of ~
pages
- Exhibit G (MBE/WBE/ Affirmative Action Requirements
- Exhibit K (Tax Exemption)
The Subcontractor is bound by the terms of all Contract Documents.
6. Subcontractor shall furnish performance, and labor and material payment
bonds for one hundred percent (100%) of the Contract Price, said bonds
to be in form and with sureties satisfactory to Contractor. The
premiums on such bonds shall be paid by Subcontractor and are included
in the Contract Price.
7. TT~1tE IS OF THE ESSENCE in the commencement of the Work and the
performance of the Contract and the Work. Subcontractor shall be liable
for all direct and consequential damages arising out of any failure to
perform the Work in accordance with the terms and provisions of the
Contract.
8. Subcontractor acknowledges that it has reviewed the Contract Documents
and accepts them with full responsibility and liability for the
performance thereof, and neither Owner nor Developer nor Contractor
shall have responsibility or liability for the performance of the Work.
9. Notices, demands or requests shall be in writing, delivered in person
or mailed by registered or certified mail, postage prepaid, or by the
sending of a telegram addressed to the parties hereto at their
addresses above stated. Notices to the Subcontractor shall be to the
attention of John Bauer and to Contractor shall be to the attention of
its President and the person whom Contractor designates as the Project
Manager.
<PAGE>
10. The Contract constitutes the entire agreement between
the parties. Subcontractor agrees that any Claims
against Contractor, irrespective of an alleged breach
by Contractor of the Contract, shall be based,
nonetheless, upon the Contract and the Contract Price,
and shall in no event be based upon an asserted fair
and reasonable value of the Work performed.
11. No representations or other agreements have been made
other than as set forth in the Contract, which may not
be changed, nor any term or provision thereof waived
except in writing signed by Contractor's duly
authorized agent or officer.
12. If Subcontractor is a partnership, limited partnership,
association or joint venture, the separate entities
which comprise Subcontractor shall be jointly and
severally bound by the terms and conditions of the
Contract Documents, and shall be jointly and severally
liable to Contractor, Developer and Owner for any
failure to perform the Work in strict accordance with
the Contract Documents.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first written above.
U.S. Bridge of New York. Inc.
Subcontractor
[Optional - to be used if Subcontractor is a Joint Venture]
By:
Name:
Title:
<PAGE>
LEHRER MCGOVERN BOVIS, INC.
GENERAL CONDITIONS
<PAGE>
INDEX
<TABLE>
<CAPTION>
<S> <C>
ARTICLES PAGE
ARTICLE 1 DEFINITIONS 1
ARTICLE 2 SUBCONTRACTOR'S CONTRACT DOCU~~IENTS 2
ARTICLE 3 ARCHITECT/ENGINEER; CO~~1UNICATIONS; COVERING/UNCOVERING
THE WORK/CUTTING AND PATCHING 4
ARTICLE 4 ACCESS 5
ARTICLE 5 SUBCONTRACTOR'S RESPONSIBILITIES 5
ARTICLE 6 DEFAULT OF SUBCONTRACTOR 9
ARTICLE 7 LEGAL REQUIREMENTS/SIMILAR MATTERS 10
ARTICLE 3 BUILDINGS MATERLLLS/EQUIPMENT/PROCESSES 11
ARTICLE 9 TESTING/INSPECTIONS 12
ARTICLE 10 GUARANTEES 13
ARTICLE 11 INDEMNIFICATION 13
ARTICLE 12 INSURANCE/BONDS 14
ARTICLE 13 TIME IS OF THE ESSENCE/SUBCONTRACTOR'S PROSECUTION OF THE
WORK/DELAY/OVERTIME 15
ARTICLE 14 SHOP DRAWINGS AND SAMPLES 16
ARTICLE 15 PROTECTION/SAFETY AND ACCIDENT PREVENTION/CQNSTRUCTION
PRACTICES AT THE SITE 13
ARTICLE 16 CORRECTION OF WORK 19
ARTICLE 17 ACCEPTANCE OF THE WORK/EARLY OCCUPANCY 20
ARTICLE 18 PAYMENTS/NO LIENS 20
ARTICLE 19 CHANGE ORDERS/CLAIMS FOR EXTRA COST/TIME EXTENSIONS 23
ARTICLE 20 TE~MINATION BY CONTRACTOR 25
ARTICLE 21 COOPERATION WITH LENDERS 25
ARTICLE 22 SURVTVING PROVISIONS 26
ARTICLE 23 CAPTIONS 26
ARTICLE 24 SEVERABILITY 27
ARTICLE 25 ASSIGNMENT 27
ARTICLE 26 NOWAIVER 27
ARTICLE 27 APPLICABLE LAW 27
</TABLE>
<PAGE>
ARTICLE 1. DEFINITIONS
1.1 The "Contract Documents" consist of the documents set forth in
Paragraph 5 of the Subcontract Agreement to which these General Conditions are
appended, and any and all modifications, addenda and amendments thereto which
may be furnished to Subcontractor from time to time.
1.2 The terms "Contract" and "Contract Documents" are used interchangeably
herein and are identical in meaning.
1.3 The "Contract Price is the sum set forth in Paragraph 4 of the
Subcontract Agreement.
1.4 BY EXECUTING THE SUBCONTRACT AGREEMENT, SUBCONTRACTOR REPRESENTS AND
WARRANTS TO DEVELOPER AND TO CONTRACTOR THAT (i) SUBCONTRACTOR IS AND WILL BE
FINANCL~ILY RESPONSIBLE AND HAS AND WILL HAVE SUFFICIENT LIQUIDITY TO MEET ITS
ELNANCIAL RESPONSIBILITIES UNDER THE CONTRACT AND FOR ALL OTHER PROJECTS IN
WHICH SUBCONTRACTOR IS OR MAY BECOME IN ~VOLVED: (ii) SUBCONTRACTOR HAS
CAREFULLY EXA~IINED THE DRAWINGS, SPECIFICATIONS AND ASSOCIATED DOCU\~IENTS AND
HAS VISITED AND EX~MINED THE SITE, OR DEEMS SUCH VISIT AND EX~NIINATION TO BE
UNNECESSARY; (iii) FROM SUBCONTRACTOR'S I~~'ESTIGATION, SUBCONTRACTOR HAS
SATISFIED ITSELF AS TO THE NATURE AND LOCATION OF THE PROPOSED WORK, THE GENERAL
AND LOCAL CONDITIONS, AND ALL MATTERS WHICH MAY IN ANY WAY AFFECT THE WORK OR
ITS PERFORMANCE; (iv) THE WORK, WHEN CO~LETED, WILL COMPLY FULLY WITH ALL
APPLICABLE BUILDING AND SAFETY CODES, REGULATIONS AND CONSTRUCTION REQUIREMENTS
IMPOSED OR ENFORCED BY ANY GOVERNMENTAL AGENCIES AND IN EXISTENCE ON THE DATE OF
EXECUTION OF THIS AGREEMENT, WITHOUT REGARD TO ANY ERRORS, ONIISSIONS OR
DEFICIENCIES IN THE DRAWINGS AND SPECIFICATIONS AND (v) SUBCONTRACTOR FULLY
UNDERSTANDS THE INTENT AND PUPPOSE OF THE CONTRACT DOCUMENTS. CLAIMS FOR
ADDITIONAL COMPENSATION AND/OR EXTENSION OF TIME RELATING TO SUBCONTRACTOR'S
NON-COMPLIANCE WITH ITS REPRESENTATIONS AND WARF~TIES IN THE PRECEDING SENTENCE
WILL NOT BE ALLOWED.
1.5 The term "Owner" means the entity so designated in the Subcontract
Agreement.
1.5.1 The term "Developer" means the entity so designated in the
Subcontract Agreement.
1.6 The term "Contractor" means the entity so designated in the Subcontract
Agreement.
1.7 The term "Other Subcontractors" means Subcontractors and/or
sub-subcontractors other than Subcontractor and Subcontractor's
sub-subcontractors, irrespective of tier.
1.8 The term "Architect/Engineer" means the entity so designated in the
Subcontract Agreement and also includes Architect/Engineer's representatives;
Developer's, Owner's or Architect/Engineer's consultants; and Developer's or
Architect/Engineer's engineering firms and their successors arid assigns.
1.9 The term "Subcontractor" means the individual, partnership, firm,
corporation or business entity who or which has signed the Subcontract Agreement
as Subcontractor. The term also includes Subcontractor 5 subcontractors and
suppliers irrespective of tier.
<PAGE>
1.10 The term "Work" means: the furnishing of all labor and/or materials by
Subcontractor, at or for the benefit of the Project; unless specifically
excepted, the furnishing by Subcontractor of all equipment, supplies, plant,
tools, scaffolding, transportation, superintendent, inspections and temporary
construction of every nature; that which is to be produced and supplied pursuant
to the Contract; and the obligation of Subcontractor to visit the Project site,
and to fully acquaint and familiarize itself with the site, surrounding and
subsurface conditions and the character of the operations to be carried on at
the site, and make such investigations as Subcontractor may deem fit or as may
be prudent for Subcontractor to fully understand the facilities, physical
conditions and restrictions attending the Work.
1.11 The term "Other Work means the work of Other Subcontractors.
1.12 The term "Project" is the total construction designed by
Architect/Engineer of which the Work is a part.
1.13 The term "days" means calendar days unless otherwise stated.
1.14 The term "Legal Requirements" means any and all requirements of law,
code, permit, regulation, rule, order, judgment, decree, ordinance, or provision
of any federal, state, or local government, agency, authority, or court
pertaining to the Work, the Project, or the Contract.
ARTICLE 2. SUBCONTRACTOR'S CONTRACT DOCUMENTS
2.1
The Contract Documents are complementary and are intended to
include and imply all items required for the proper execution and
completion of the Work. Any item of Work mentioned in the
Specifications and not shown on the Drawings, or shown on the
Drawings and not mentioned in the Specifications, shall be
provided as if shown and mentioned in both.
2.2
The Drawings and Specifications are to be treated by Subcontractor
as "scope" documents which indicate the general scope of the
Project in terms of the architectural design concept, the overall
dimensions, the type of structural, mechanical, electrical,
utility, and other systems, and an outline of major architectural
elements. As "scope" documents, the Drawings and Specifications do
not necessarily indicate or describe all items required for the
full performance and proper completion of the Work. The Contract
is let with the understanding that Subcontractor is to furnish for
the Contract Price all items required for proper completion of the
Work. Subsequent Drawings and Specifications which may more
completely detail certain requirements of the Work may be issued,
at the option of the Architect/Engineer, for the purpose of
construction, but there is no obligation to issue such additional
documents.
2.3
The Work shall be first class and be in accordance with the best
standards of the construction industry in the city where the
Project is located. Subcontractor shall be responsible for
providing a sufficient quantity of materials, parts and equipment
for installation of all items of the Work indicated, described or
reasonably inferable from the Contract Documents.
2.4
The Specifications generally describe Work which cannot be readily indicated on
the Drawings, such as types, qualities and methods of installation for materials
and equipment. It is not intended to describe every item of Work in the
Specifications which can be shown on the Drawings nor to show on the Drawings
all items of Work which can be described in the Specifications even if such
items are
<PAGE>
of such nature that they could have been shown on the Drawings or
described in the Specifications. All materials and labor for the
Work which are shown on the Drawings or described in the
Specifications or are inferable therefrom as necessary to produce
a finished job shall be provided by Subcontractor.
2.5
The Specifications are separated into titled sections for
convenience only and not to suggest the trade or craft involved.
2.6
Where "as shown", "as indicated", "as detailed" or words of
similar import are used, reference is made to the Drawings unless
otherwise stated. Where "as directed", "as required", "as
permitted", "as authorized", or words of similar import are used,
the direction, requirement, permission, authorization, approval,
acceptance or selection by Contractor is intended unless otherwise
stated. "Provide" means "provide complete in place', that is,
furnish and install, ready for operation and use.
2.7
Any reference to standard specifications of a society, institute,
association or governmental authority is a reference to the
standard specifications of such organization that are in effect at
the date of Subcontractor's bid. If such standard specifications
are revised prior to completion of any part of the Work to which
such revision would pertain, Subcontractor may, if acceptable to
Contractor, perform such work in accordance with the revised
standard specifications.
2.8
The standard specifications referred to above, except as modified
in the Specifications, shall have full force and effect as though
printed in the Specifications. The manufacturers and trades
involved are assumed to be familiar with such standard
specifications. Architect/Engineer will furnish, on request,
information as to how copies of standard specifications may be
obtained.
2.9
In the event there is a discrepancy between the various Contract Documents, the
following order of priority will be used:
2.91 Exhibits to the Subcontract Agreement; however, nothing
in Exhibit B shall vary the Drawings and Specifications
and/or the General Conditions unless and to the extent
that it is explicitly stated in Exhibit B that the
Drawings and Specifications and/or the General
Conditions are varied;
2.9.2 Subcontract Agreement;
2.9.3 General Conditions;
2.9.4 Drawings and Specifications;
2.9.5 If the discrepancy is between the Drawings and the
Specifications, or within the Specifications, or within
the Drawings, then the discrepancy shall be submitted
to Contractor. The general rule for interpretation will
be that the discrepancy will be resolved in favor of
providing the better quality or greater quantity of
work and/or materials. The decision of Contractor as to
which of the conflicting requirements shall govern
shall be final, and Subcontractor shall perform the
Work in accordance with such decision and without any
change in the Contract Price. Contractor may solicit
the advice of Architect/Engineer under Paragraph 3.2
hereof.
2.10 Dimensions shall not be determined by scale or rule. Figured
dimensions shall be followed. If figured dimensions are lacking, they shall be
supplied by Architect/Engineer on Subcontractor's
<PAGE>
request made to the Contractor. Subcontractor is responsible for
coordinating the Drawings and Specifications with field conditions
and reporting to Contractor and Architect/Engineer any
discrepancies.
2.11
All copies of Drawings and Specifications are the property of
Owner and Developer and are not to be used on any other projects.
The Drawings and Specifications are to be returned to Contractor
on its request. Drawings, specifications, and other design
documents prepared by the Architect/Engineer and copies thereof
furnished to the Subcontractor, are for use solely with respect to
this Project. They are not to be used by Subcontractor on other
projects or for additions to this Project outside the scope of the
Work without the prior written consent of Contractor and
Developer.
2.12
Subcontractor shall take field measurements and verify field conditions and
compare such field measurements and field conditions with the Plans and
Specifications before activities are commenced. Errors, inconsistencies or
omissions discovered are to be reported to Contractor at once. Any work done by
the Subcontractor with respect to any portion of the Work affected by such
error, discrepancy, conflict, misunderstanding, or variance will be at
Subcontractor 5 own risk and Subcontractor shall bear all costs and loss arising
therefrom. Nothing in this paragraph shall modify or compromise any warranties
and representatives made by Subcontractor in the Contract Documents.
ARTICLE 3, ARCHJTECT/ENGINEER: COMMUNICATION COVERING UNCOVERING THE
WORK/CUTTING AND PATCHING
3.1 NEITHER ARCHITECT/ENGINEER NOR CONTRACTOR. OWNER OR DEVELOPER SHALL BE
RFSPONSTBLF FOR: CONSTRUCTION MEANS METHODS TECHN'OUES SEOUENCES OR PROCEDL'RFS
OF SUBCONTRACTOR: SAFETY PRECAUTIONS AND PROGRAMS OF ST;BCONTRACTOR THE ACTS OR
OMISSIONS OF SUBCONTRACTOR OR THE FAILURE OF SUBCONTRACTOR TO CARRY OUT THE WORK
IN ACCORDANCE WITH THE CONTRACT DOCUMENTS
3.2 Unless Developer otherwise determines, Architect/Engineer shall be, in
the first instance, the interpreter of the Drawings and Specifications,
excluding discrepancies therein (which are governed by Paragraph 2.9.5).
3.3 If any Work has been covered contrary to the requirements of the
Contract Documents or to the specific instructions of Developer,
Architect/Engineer or Contractor before such Work has been observed by them,
such Work shall, upon request of Contractor, promptly be uncovered for
observation and/or testing at Subcontractor's sole cost and expense, and if
found not to be in accordance with the Contract Documents, be replaced and
recovered at Subcontractor's sole cost and expense.
3.4 If any Work has been covered which has not been required by the
Contract Documents or by specific instruction by Developer, Architect/Engineer
or Contractor to be observed by Developer, Architect/Engineer or Contractor
prior to being covered, Contractor or Developer may request to see the Work in
question and it shall be uncovered promptly by Subcontractor as directed. If
such Work is found to be in accordance with the requirements of the Contract
Documents? Subcontractor shall be reimbursed by Developer for the cost of such
uncovering and recovering. If such Work is found not to be in accordance with
the Contract Documents, the cost of uncovering, replacement and recovering shall
be at the expense of Subcontractor.
<PAGE>
3.5 Upon request of Contractor, Subcontractor shall place its engineering
personnel (or such engineering or consulting firm as Subcontractor may have
engaged in connection with the Work) at Architect/Engineer's, Developer's and/or
Contractor's disposal for checking the Work. When layouts of the Project site or
Work are to be made, Subcontractor shall notify Architect/Engineer in reasonably
sufficient time so that Architect/Engineer may be present.
3.6 Architect/Engineer is not authorized to make any changes or
modifications in the Contract Documents except for written revisions of the
Drawings and Specifications approved by Developer.
3.7 Subcontractor shall be responsible for all cutting and patching, as
approved by Architect/Engineer or Contractor, necessary for the installation of
the Work. If Subcontractor, as part of the Work, is responsible for placing
sleeves and/or hangers and they are not placed in time or are improperly placed,
Subcontractor shall be responsible at its expense for all resulting forming,
drilling, and other corrective work required to be done to the Work and to Other
Work, including patching.
All cutting, fitting, patching and drilling by Subcontractor shall be done
promptly and so as to leave the Work and other Work in conditions and appearance
acceptable to Developer.
3.9 Structural members shall not be cut except by written authorization and
pursuant to direction of Architect/Engineer.
3.10 Permission to patch and/or repair any areas or items of Work and Other
Work shall not constitute a waiver of Developer's right to require complete
removal and replacement of said areas or items of Work and/or Other Work, if, in
Developer's opinion, said patching or repair does not satisfactorily restore the
required quality and appearance of the Work and/or Other Work.
3.11 All communications between (i) Architect/Engineer and Subcontractor
and (ii) between Developer and Subcontractor shall be through Contractor.
ARTICLE 4. ACCESS
Developer, Architect/Engineer and Contractor, upon request, promptly shall
have access to the Work, whether at the Project, in storage or in manufacture or
preparation. Subcontractor shall provide proper and safe facilities for such
access and for inspection at the Project site, at the place of storage or
elsewhere.
ARTICLE 5. SUBCONTRACTOR1S RESPONSIBILITIES
Subcontractor agrees, in addition to all other responsibilities and duties under
the Contract:
5.1 To carefully study and compare, one with the other, all Drawings,
Specifications and other instructions and at once report in writing to
Contractor any error or omission (including variance from any Legal
Requirements); and to subsequently proceed with the Work in accordance with
instructions from Contractor concerning such error, omission, or variance.
5.2 To use all necessary means to discover and to notify Contractor in
writing of any defect in Other Work upon which the satisfactory performance of
the Work may depend, and to allow a reasonable
<PAGE>
amount of time for remedying such defects. If Subcontractor should proceed
with the Work, Subcontractor shall be considered to have accepted and be
responsible for such Other Work unless over Subcontractor's written objection,
Subcontractor shall have proceeded pursuant to written instructions from
Contractor.
5.3 To submit to Contractor promptly upon its request, information with
respect to the names, responsibilities and titles of the principal members of
Subcontractor's staff.
5.4 To furnish, at Subcontractor's expense, sufficient temporary facilities
and shanties, material storage rooms, field offices, etc., which shall be placed
in locations designated by Contractor. When it becomes necessary, due to the
progress of the Project, for Subcontractor to relocate such facilities,
shanties, rooms, and/or offices, Subcontractor will do so in an expeditious
manner and at no additional cost. Shanties, storage rooms, field offices, etc.,
shall be equipped with fire extinguishers and shall be of fireproof material
only, such as concrete, gypsum block, rated drywall, or sheet metal.
5.5 To pay: Contractor's charges for hoisting; costs of repair to Other
Work attributable, in whole or in part, to the fault or negligence of
Subcontractor; and Contractor's charges for removal of rubbish attributed by
Contractor to Subcontractor, and any cleanup related to Subcontractor or the
Work.
5.6 To comply with all Legal Requirements; to appear at hearings,
proceedings or in court in respect of such compliance or in respect of
violations or claimed violations of Legal Requirements; to pay any fines or
penalties imposed for said violations; and to pay all legal fees, fines and
penalties incurred by or imposed upon Owner, Developer, Contractor and Other
Subcontractors relating to Subcontractor's compliance. violations or claimed
violations. Without limiting the foregoing, Subcontractor will appear at
hearings, proceedings and/or in court and consent to its substitution as a party
defendant in respect of all summonses and claimed violations arising Out of or
relating to the Work.
Not to display on or about the Project site any sign, trademark or other
advertisement.
5.8 That before any subcontractor or supplier is employed by Subcontractor,
the name of such subcontractor or supplier shall be submitted in writing to
Contractor, and no subcontractor or supplier shall be employed unless acceptable
to Contractor. Each subcontractor and supplier shall be bound by all Contract
Documents to the same extent and with the same effect as if the subcontractor or
supplier were the Subcontractor. Subcontractor shall cause subcontractors and
suppliers to comply with all the Contract Documents. Subcontractor shall be
responsible for all the acts, omissions, work, material and equipment of its
subcontractors and suppliers and all persons either directly or indirectly
employed by any of them.
5.9 That in the event of any dispute as to whether any item or portion of
the Project work is within the scope of the Work to be performed by
Subcontractor or any dispute as to whether Subcontractor is entitled to an extra
payment, Subcontractor shall continue to proceed diligently with the performance
of the Work, the Contract, and the disputed Work. The resolution, by agreement
or otherwise, of the disputed Work, shall be made between Subcontractor and
Contractor with reasonable promptness, subject to and on condition that
Developer thereafter confirms the resolution and agrees to be liable for and pay
Subcontractor the amount of any agreed-upon extra payment. In no event shall
delay in such resolution excuse prompt performance by Subcontractor of the Work,
the Contract, and the disputed work.
<PAGE>
5.10 To: (i) furnish a competent and adequate staff and use its best skill
and attention for the proper administration, coordination, supervision and
superintendent of the Work; (ii) organize the procurement of all materials and
equipment so that they will be available at the time they are needed for the
Work; (iii) keep an adequate force of skilled workers on the job to complete the
Work in strict accordance with all requirements of the Contract Documents; (iv)
maintain throughout the duration of the Work a competent superintendent and any
necessary assistants, all of whom shall be acceptable to Contractor and shall
not be changed without the consent of the Contractor; (v) enforce discipline and
order among Subcontractor's employees and not to employ at the Project any unfit
person or anyone not skilled in the task assigned; (vi) provide supervision by
experts in all aspects of the application of the materials, equipment or system
being fabricated and installed; and (vii) submit to Contractor the names,
responsibilities and titles of the principal members of Subcontractor's staff.
5.11 That directions given to Subcontractor's superintendent shall be
binding upon Subcontractor.
5.12 Not to assign nor sublet the Contract as a whole, not to assign any
monies due or to become due under the Contract, without the prior written
consent of Contractor. Any such assignment or subletting of the Contract or of
monies due under the Contract without the prior written consent of Contractor
shall be void, and the purported assignee shall acquire no rights in, under or
to the Contract or monies.
5.13 To afford Other Subcontractors reasonable opportunity for introduction
and storage of their materials and for the execution of Other Work.
5.14 To give all notices and comply with all Legal Requirements relating to
the terms and conditions of employment of any employee who is employed in
connection with the Work, including, without limitation, the applicable
provisions of the Fair Labor Standards Act, the Fair Employment Practices Law
and the Equal Pay Act.
5o15 Not to discriminate against any employee who is employed in connection
with the Work or applicant for such employment because of age, race, creed,
color, sex, affection preference, ancestry, marital status, religion or national
origin. Subcontractor shall take affirmative action and cause all of its
respective subcontractors to take affirmative action to afford equal employment
opportunities without discrimination because of age, race, creed, color, sex,
affectional preference, ancestry, marital status, religion or national origin.
Such action shall be taken with reference to, but not be limited to,
recruitment, employment, job assignment, promotion, upgrading, demotion,
transfer, layoff, termination, rates of pay and other forms of compensation, and
selection for training, including apprenticeship and on-the-job training.
5.16 To comply with all plans, guidelines and policy determinations
relating to the employment of minority groups, established by any public
authority, trade association, or any other organization designated by
Contractor.
5.17 To obtain and pay for all permits, licenses, governmental fees and
certificates of inspection necessary for the prosecution and completion of the
Work.
5.18 That if any Work is performed which is contrary to Legal Requirements,
to promptly make all changes as required and take all other corrective action to
comply therewith and pay all costs arising therefrom.
<PAGE>
5.19 Subcontractor acknowledges and agrees that pursuant to the tax exempt
status of the Project, no amount of New York State sales or use taxes will be
included in the contract price for any goods and/or property that will become an
integral component of the Work. Subcontractor shall pay, whenever assessed, all
applicable federal, and local taxes on all materials, labor or services
furnished by or through Subcontractor and all taxes arising out of
Subcontractor's operations, which may be imposed upon or be collected from
Owner, Developer or Contractor or become a lien against the Project as a result
of or arising out of the Work. Such taxes shall include, but not be limited to,
occupational, sales, use, excise, old age, employee, lease, benefit and
unemployment taxes, customs duties and all income, franchise, license and other
taxes now in force or hereafter enacted.
5.20 To pay all royalties and license fees applicable to the Work.
Subcontractor shall defend, indemnify and hold Owner, Developer,
Architect/Engineer and Contractor harmless of, from and against any and all
suits, demands and claims for infringement of any patent rights except to the
extent that a particular design, process or product is specified in the Contract
Documents. The foregoing exception shall be inapplicable if Subcontractor had or
should have had reason to believe the design, process, or product infringed upon
a patent, and failed to give written notification to Contractor of same.
5.21 That any review or consideration by Developer, Architect/Engineer, or
Contractor of any method of construction, invention, appliance, process,
article, device or material of any kind shall be for its general adequacy for
the Work and shall not be an approval for the use thereof by Subcontractor in
violation of any patent or other rights of any third person.
5.22 That if any provision of the Contract Documents conflicts with any
agreement among members of a trade association, or with a union or labor council
which regulates the work to be performed by a particular trade, to reconcile
such conflict without delay or damage to Developer or to Contractor. In the
event the progress of the Work is delayed by such conflict, Contractor may
require that other material or equipment of equal or better kind and quality be
provided at no additional cost to Developer. This right of substitution shall
not limit other rights which Developer may have concerning such delay.
5.23 To employ labor that is compatible with the labor of Other
Subcontractors; to take all steps necessary to avoid labor disputes; and to be
responsible for any delays and damages to Owner or Developer caused by such
disputes.
5.24 The Subcontractor shall confirm operations at the site to areas
permitted by law, ordinances, permits and the Contract Documents, and as set
forth in the Special Conditions to the Subcontract shall not unreasonably
encumber the site with materials and equipment. The Subcontractor shall not
perform any portion of the Work outside the areas of the Project Site owned or
controlled by Developer, Owner or designated as part of the Project Site in the
Contract Documents unless Subcontractor gives thirty (30) days advance written
notice to Contractor, and Developer is able to obtain permission from the
appropriate parties to proceed with the Work or to permit access pursuant to
Developer's agreements with the owners and/or tenants of said areas. Any work
permitted outside of the Site owned by Owner shall be scheduled in a manner as
to cause or occasion a minimum of inconvenience or disturbance to or
interference with the normal operations of the Owner, abutters and the public.
Subcontractor shall prosecute such operations expeditiously and restore the
affected area and other areas needed for access to their original conditions
immediately upon completion of such operations unless otherwise specified.
<PAGE>
6.1 An Event of Default on the part of Subcontractor shall occur upon the
happening of any one or more of the following events:
6.1.1 a refusal or neglect by Subcontractor to supply a sufficient number
of skilled workers, a sufficient quantity of materials of the specified quality,
or a sufficient amount of equipment, parts, and Systems of the specified
quantity and performance requirement;
6.1.2 a failure by Subcontractor to prosecute the Work with diligence and
promptness;
6.1.3 an act or omission by Subcontractor which stops, delays, interferes
with, or damages the Work or any Other Work;
6.1.4 any other failure by Subcontractor to perform any other terms and
conditions of the Contract;
6.1.5 a determination by Contractor that the Work or any portion of the
Work is not being performed in accordance with the Contract;
6.1.6 the filing by or against Subcontractor of a petition under the
Bankruptcy Code or for other debtor or insolvency relief;
6.1.7 the filing by or against Subcontractor of proceedings in furtherance
of liquidation or dissolution;
6.1.8 the acknowledgment by Subcontractor of insolvency;
6.1.9 a determination by Contractor that Subcontractor has been acting or
failing to act in a manner that evidences financial difficulties on the part of
Subcontractor; and/or
6.1.10 the failure to pay any subcontractor monies which Subcontractor has
been paid by Contractor.
6.2 Upon the happening of an Event of Default, Contractor shall have the
rights, in addition to any other rights and remedies provided by the Contract or
by law, after five (5) days written notice from Contractor to Subcontractor
mailed, delivered, or telegraphed to the last known address of Subcontractor, or
after such shorter period, with or without notice, as may be deemed by
Contractor to be appropriate under the circumstances, to:
6.2.1 cause to be performed or furnished, at Subcontractor's expense, such
labor and equipment, parts, systems and materials, and/or to incur at
Subcontractor's expense such other expenses (including, but not limited to,
legal fees) in respect of the Work and/or Event of Default as may be necessary,
or deemed by Contractor to be advisable, and to deduct the said expenses from
monies, if any, due or to become due to Subcontractor; and/or
6.2.2 terminate the Project activities but not necessarily the Contract) of
Subcontractor for all or any portion of the Work, enter upon the Project site,
and take possession, for the purpose of completing the Work, of all materials,
equipment, scaffolds, tools, shanties, facilities,
<PAGE>
in appliances and other items, all of which Subcontractor hereby transfers,
assigns and sets over to Contractor for such purpose; and/or
6.2.3 employ, at Subcontractor's expense, any person, firm, corporation or
Other Subcontractor to complete the Work, and provide at Subcontractor's expense
all labor, Services, materials, equipment and other items required therefor;
and/or
6.2.4 terminate the Contract and proceed, at Subcontractor's expense as in
Subparagraphs 6.2.1, 6.2.2 and/or 6.2.3.
6.3 Upon the happening of an Event of Default and to effectuate the
provisions of Paragraph 6.2, Contractor may engage Subcontractor's
subcontractors and suppliers. Subcontractor shall not be entitled to receive any
further payment until the Work shall be wholly completed to the satisfaction of
Contractor and Developer and shall have been accepted by Contractor and
Developer, at which time, if the unpaid balance, if any, of the Contract Price
at the time of Subcontractor's default shall exceed the costs and expenses
incurred in completing the Work and curing Subcontractor's default, such excess
shall be paid to Subcontractor; but if such costs and expenses shall exceed such
unpaid balance, then Subcontractor shall pay the difference to Contractor. Such
costs and expenses shall include not only the cost of completing the Work to the
satisfaction of the Contractor and Developer and of performing and furnishing
all labor, services, materials, equipment and other items required therefor, but
also all losses, damages, costs and expenses, whether direct or consequential,
including, without limitation, legal fees and disbursements, sustained, incurred
or suffered or to be sustained, incurred or suffered by Owner, Developer and/or
Contractor by reason of or resulting from the Event of Default.
6.4 In addition to all other rights which Contractor has under the Contract
Documents, Contractor ~hal1 have the right to stop the Work upon the occurrence
of an Event of Default. Contractor's right to stop the Work is in addition to
any and all other remedies available to Contractor and does not give rise to any
duty to exercise this right for the benefit of the Subcontractor or any other
person or entity.
6.5 Without limitation, an Event of Default shall not be deemed waived or
discharged by:
6.5.1 action taken or not taken by Contractor or Developer in respect of
the occurrence giving rise to an Event of Default; and/or
6.5.2 course of dealing by Contractor; and/or
6.5.3 delay on the part of Contractor in exercising any right under the
Contract; and/or
6.5.4 payment to Subcontractor; and/or
6.5.5 inspection, testing, or approval by Developer, Architect, Engineer,
or Contractor of any portion of the Work.
ARTICLE 7. LEGAL REQUIREMENT/SIMILAR MATTERS
<PAGE>
13 7.1 Subcontractor shall comply with, and cooperate with Other
Subcontractors, Contractor, Architect/Engineer, and/or Developer in complying
with Legal Requirements, including but not limited to OSHA requirements. Among
other things, Subcontractor shall be responsible for performing corrective work
within abatement periods, appealing from decisions or orders, requesting
extensions on abatement periods, and furnishing such information or evidentiary
material as may be necessary or as may be requested by Contractor to fully
protect the rights and interests of Owner, Developer, Architect/Engineer, and
Contractor with respect to possible, threatened or pending proceedings or
orders.
7.2 Without limitation, Subcontractor shall indemnify Owner, Developer
and/or Contractor pursuant to Article 11 hereof in respect of Paragraph 7.1 and
the responsibilities of Subcontractor specified in Paragraphs 5.6, 5.14, 5.15,
5.16, 5.17,5.18, 5.19 and 5.20 pertaining to Legal Requirements.
ARTICLE 8. BUILDINGS MATERIALS/EQUIPMENT PROCESSES
8.1 Unless otherwise specified, all materials and equipment that are part
of the Work shall be new and shall be of the quality required by the Contract
Documents. Subcontractor shall, upon request of Contractor, furnish satisfactory
evidence as to kind and quality of all materials and equipment. All workmanship
shall be of such quality as will result in first class work in accordance with
the Contract Documents.
8.2 Any work, materials or equipment which do not conform to the Contract
Documents may be rejected by Contractor, in which case they shall be replaced by
Subcontractor at its expense.
8.3 When work or more products are specified for an item of Work, any one
is acceptable and the choice is left to Subcontractor. When only one product is
specified and the term "or equal is used in connection with the product,
Subcontractor may offer a substitute product, which will completely accomplish
the purpose of the specified product, and be subject to approval by Contractor
and Architect/Engineer.
8.4 Requests for permission to substitute a product, material or process
for that specified in the Contract Documents must be accompanied by evidence
that the proposed substitution: (i) is equal in quality and serviceability to
the specified item; (ii) will not entail changes in detail and construction of
Other Work; (iii) will be acceptable to the Architect/Engineer in achieving
design and artistic intent; and (iv) will not result in a cost disadvantage.
Subcontractor shall furnish with such request such drawings, specifications,
samples, performance data and other information as may be required to assist in
determining whether the proposed substitution is acceptable. The burden of proof
of acceptability shall be upon Subcontractor. If an approved substitution
affects Other Work or otherwise necessitates any redesign, Subcontractor shall
pay all costs thereof.
8.5 Subcontractor shall prepare and submit lists, in triplicate, to
Contractor of all manufactured or fabricated products proposed for the Work.
Such lists shall include such information on materials, equipment and fixtures
as may be required by Contractor for preliminary approval. Approval of such
lists shall not be construed as a substitute for the shop drawings,
manufacturer's descriptive data and samples which are required by the Contract
Documents, but rather as a base from which more detailed submittals shall be
developed for final approval by Contractor.
<PAGE>
8.6 Manufacturers' nameplates shall not be permanently attached to
ornamental and miscellaneous metal work, doors, frames, millwork, exposed
surfaces and other fabricated or manufactured products to be placed in finished
spaces if, in Contractor's opinion, the nameplates would be objectionable. The
preceding sentence does not apply to Underwriters' labels where required, nor to
manufacturers' name and rating plates on mechanical and electrical equipment.
8.7 Each major component of mechanical and electrical equipment shall have
the manufacturer's name, address, model number and rating on a plate securely
affixed in a conspicuous place, as required in the mechanical and electrical
sections of the Specifications.
8.8 In case of any differences or conflicts between the requirements of the
manufacturer's instructions or specifications and the requirements of the
technical sections of the Specifications, the instructions or specifications
having the more detailed and precise requirements specifically applicable to the
Work, as determined by Architect/Engineer, shall govern.
ARTICLE 9. TESTTNG/TNSPECTIONS
9.1 Developeror Contractor may, but shall not be obligated to, retain the
services of testing laboratories, agencies, and/or professional engineers to
perform the tests (including control balancing and adjusting) and make the
required inspections and reports specified in the Contract Documents or deemed
necessary in case of questioned items. Such testing laboratories, agencies
and/or professional engineers shall conduct and interpret the tests. A copy of
each test report deemed necessary in case of questioned items shall, at
Contractor's option, be made available to Subcontractor.
9.2 Subcontractor shall furnish samples of all materials and component
parts to be used as test specimens. Subcontractor shall furnish labor and
facilities at the Project site as necessary in connection with testing and
inspection services.
9.3 Except as otherwise specified in other Contract Documents or elsewhere
in these General Conditions, Subcontractor shall pay for all laboratory
services, tests, testing laboratories, agencies, professional engineers,
engineering inspections and reports required by the Contract Documents, the
Architect/Engineer, or Contractor. Testing laboratories and professional
engineers shall be subject to Contractor's approval.
9.4 Without limiting the provisions of Paragraph 9.3, the cost of testing
laboratories, agencies. and/or engineers for the convenience of Subcontractor in
its scheduling and performance of the Work, or related to remedial operations or
possible deficiencies shall be borne by Subcontractor.
9.5 The nature and scope of testing services, agencies and/or inspections
performed by laboratories and engineers retained by or on behalf of Developer or
Contractor shall be in accordance with Legal Requirements or as otherwise
specified in the Contract Documents and shall be consistent with recognized good
standards of engineering practice.
9.6 If, in the performance of any testing, control, balancing, adjusting or
similar work to be performed by or on behalf of Subcontractor, it is the opinion
of Contractor or Architect/Engineer that Subcontractor has failed to
substantiate the ability to perform such Work, Subcontractor shall, at its
expense, retain the services of a testing laboratory, agency or service
organization which is satisfactory to Contractor and Architect/Engineer for the
performance of such work.
<PAGE>
9.7 Contractor may instruct Subcontractor to order special inspection,
testing or approval as Contractor deems necessary. If such special inspection or
testing reveals a failure of the Work to comply (i) with the requirements of the
Contract Documents. or (ii) with Legal Requirements, Subcontractor shall bear
all costs of such Developer-directed special inspection, special testing and
correction.
9.8 The observations of or participation by Developer, Architect/Engineer,
or Contractor in inspections or tests by persons other than Subcontractor, shall
not relieve Subcontractor from its obligations to perform the Work in accordance
with the Contract Documents.
9.9 If the Specifications or any Legal Requirements require any portion of
the Work to be specifically tested or reviewed, Subcontractor shall give
Contractor timely written notice of such test or review.
ARTICLE 10. GUAR~~~TFFS
10.1 Subcontractor guarantees to Owner, Developer and Contractor all Work
against defects in materials and workmanship and for conformity with the
Contract Documents for a period equal to the greater of: one (1) year from the
date of Project completion; such period as may be specified in other Contract
Documents; or such period as may be specified by Legal Requirements. If any part
of the Work is found after Project completion not to comply with the Contract
Documents, the guarantee period thereon shall commence on the date such part of
the Work is corrected to comply with the Contract Documents.
10.2 Subcontractor promptly shall, after receipt of written notice, correct
any defects in materials, equipment and workmanship which may develop within the
guarantee period, and also correct and/or repair and/or replace any damage to
Other Work or the Owner's property caused by defective materials, equipment or
workmanship and the repairing of same.
10.3 The foregoing guarantee and obligations shall not deprive Contractor
of any action, right or remedy otherwise available for breach of any of the
provisions of the Contract Documents. The periods referred to above shall not be
construed as a limitation on the time in which Contractor may pursue such other
action, right or remedy.
10.4 Satisfaction of the aforementioned guarantee obligations shall be
deemed to be a material component of Subcontractor's contractual obligation to
perform the Work. The Contract shall not be deemed to be duly performed until
all guarantee obligations hereunder are satisfied. Performance bonds required of
Subcontractor shall include the performance of guarantee obligations and shall
not contain clauses limiting the time to sue upon said bonds to less than the
applicable guarantee period.
ARTICLE 11. INDEMNIFICATION
11.1 To the maximum extent permitted by law, Subcontractor hereby assumes
the entire responsibility and liability for any and all damage (direct or
consequential) and injury (including death), of any kind or nature whatsoever.
to all persons, whether or not employees of Subcontractor, and to all property
and business or businesses, caused by, resulting from, arising out of, or
occurring in connection with (i) the Work; (Ii) the performance or intended
performance of the Work; (iii) the performance or failure to perform the
Contract; or (iv) any occurrence which happens in or about the area where the
Work is
<PAGE>
being performed by Subcontractor, either directly or through a
subcontractor, or while any of Subcontractor's property, equipment or personnel
is in or about said area
11.2 Except to the extent, if any, expressly prohibited by law, should any
such damage or injury referred to in Paragraph 11 1 be sustained, suffered, or
incurred by Owner, Developer, Architect/Engineer, or Contractor or should any
claim for such damage or injury be made or asserted against any of them,
including any alleged breach of any statutory duty or obligation on the part of
Owner, Developer, Architect/Engineer or Contractor, Subcontractor shall
indemnify and hold harmless Owner, Developer, Architect/Engineer and Contractor,
their officers, agents, partners, employees, affiliates and subsidiaries
hereinafter collectively referred to as ~Indemnitees~), of, from and against any
and all such damages, injuries, and claims and further, from and against any and
all other loss, cost, expense, and liability, including without limitation.
legal fees and disbursements, that any Indemnitee may directly or indirectly
sustain, suffer or incur as a result of such damages, injuries and claims; and
Subcontractor agrees to assume, on behalf of any and all Indemnitees the defense
(with counsel satisfactory to the party indemnified) of any action at law or in
equity, or other legal proceeding, which may be brought against any Indemnitee
upon or by reason of such damage, injury, or claim and to pay on behalf of every
Indemnitee, the amount of any judgment, decree, award, or order that may be
entered against each said Indemnitee in any such action or proceeding. In the
event that any such claim, loss, cost, expense, liability, damage or injury is
sustained, suffered, or incurred by, or is made, asserted or threatened against
any Indemnitee, Contractor shall, in addition to all other rights and remedies,
have the right to withhold from any payments due and to become due to
Subcontractor an amount sufficient in Contractor's judgment to protect and
indemnify the Indemnitee from and against any and all such claim, loss, cost,
expense, liability, damage or injury, including legal fees and disbursements; or
Contractor, in its discretion, may require Subcontractor to furnish a surety
bond satisfactory to Contractor guaranteeing such protection, which bond shall
be furnished by Subcontractor within five (5) days after written demand has been
made therefor. In the event more than one Subcontractor is connected with an
event or occurrence (or a series of events or occurrences) covered by this
indemnification, then all such Subcontractors shall be jointly and severally
responsible to the Indemnitees, and the ultimate responsibility among such
indemnifying Subcontractors shall be settled or otherwise determined by separate
proceedings and without loss, expense, or damage to any Indenmitee.
11.3 Nothing in Article 11 shall be construed to require any
indemnification which would make Article 11 void or unenforceable or to
eliminate or reduce any indemnification or rights which any Indemnitee or
Subcontractor has by law. In the event that any term, paragraph or provision of
Article 11 is found void or unenforceable, it shall not thereby invalidate or be
construed to invalidate any other term, paragraph or provision contained in
Article it or elsewhere in this Contract, all of which shall remain in full
force and effect.
ARTICLE 12. INSURANCE/BONDS
12.1 The terms and conditions of insurance to be provided by Subcontractor
are described in the Insurance Exhibit attached to the Subcontract Agreement.
Neither Owner, Developer, nor Contractor, nor their agents, employees or
assigns, shall be liable to Subcontractor or its agents, employees or assigns
for any loss or damage covered by the insurance policies described in the
aforementioned Insurance Exhibit.
12.2 Irrespective of whether Subcontractor is required to provide
performance, labor, and material surety bonds under the terms of the Subcontract
Agreement, Contractor shall have the right from time to time during the course
of the Work, and upon written recommendation of Contractor's legal counsel, to
require Subcontractor to furnish bonds for one hundred percent (100%) of the
Contract Price (with sureties and in form and amount acceptable to Developer and
Contractor) covering the faithfull performance of the Contract and the payment
of all obligations arising thereunder. Such bonds shall be furnished within ten
(10) days after Subcontractor has been given written notice of such requirement
by Contractor.
12.3 If an action for bodily injury and/or property damage is commenced
against Owner and/or Developer or Contractor, which in the opinion of
Contractor's counsel or insurance coordinator is covered by the indemnity
provisions of Article 11, Subcontractor shall. upon Contractor's written
request, promptly cause Subcontractor's insurance carrier to have its attorneys
appear timely in the action on behalf of Owner and/or Developer or Contractor
and provide the defense of Developer and/or Owner or Contractor.
ARTICLE 13. TIME IS OF THE ESSENCE / SUBCONTRACTOR'S PROSECUTION OF THE
WORK/DELAY/OVERTIME
13.1 TIME IS OF THE ESSENCE / SUBCONTRACTOR'S PROSECUTION OF THE WORK.
Subcontractor shall be responsible for all direct, incidental, and consequential
damages to Owner, Developer and to Contractor arising from any delay of
Subcontractor, its subcontractors and suppliers, in performing or completing the
Work in accordance with the time requirements of Paragraph 13.2 hereof. The
indemnity provisions of Article II are applicable to such damages and to claims
arising in respect thereto.
13.2 Subcontractor shall do all things necessary to ensure the prosecution
of the Work in accordance with any one or more of the following as determined by
Contractor in its absolute and sole discretion:
13.2.1 Project schedules and revisions thereof, given from time to time by
Contractor to Subcontractor;
13.2.2 the time requirements for various portions of Work, which said
requirements are made known from time to time by Contractor or Other
Subcontractors to Subcontractor;
13.2.3 the requirements of the Project including. but not limited to,
coordination requirements as may from time to time be known to Subcontractor or
be made known by Contractor or Other Subcontractors to Subcontractor;
13.2.4 schedules of the Work provided by Subcontractor to Contractor upon
Contractor's request.
13.3 Should the progress of the Work and/or Other Work be delayed by any
fault, neglect, act, or failure to act of Subcontractor or any of its
subcontractors or suppliers so as to cause any additional cost, expense,
liability or damage to Owner and/or Developer and Contractor or for which Owner
and/or Developer or Contractor may become liable, Subcontractor shall hold
Contractor harmless from and indemnify Contractor against all such additional
cost, expense, liability or damage in accordance with the provisions of Article
11.
<PAGE>
13.4 The Work shall be performed during regular working hours, except that
in the event of emergency or when necessary to perform the Work in accordance
with the requirements of Paragraph 13.2, Work shall be performed at
Subcontractor's cost and expense (including Contractor's standby and other
general conditions costs) on night shifts. overtime, Saturdays, Sundays,
Holidays and at other rimes, if permission to do so has been obtained in writing
from Contractor. Without limiting the requirements of the preceding sentence, if
the progress of the Work or of the Project has been delayed by any fault,
neglect, act, or failure to act of Subcontractor or any of its subcontractors or
suppliers, Subcontractor shall work such overtime, at Subcontractor's cost and
expense as aforesaid, as Contractor shall deem necessary or desirable to make up
for all time lost and to avoid delay in the completion of the Work and of the
Project. The failure by Contractor to direct Subcontractor to engage in such
overtime work shall not relieve Subcontractor of the consequences of its delay.
13.5 Subcontractor shall commence the Work upon written notice by
Contractor.
13.6 Contractor may direct acceleration of the Work in order that it may be
performed in advance of the schedules, time requirements and Project
requirements described in Paragraph 13.2 hereof. If so directed, Subcontractor
shall increase its staff and/or work overtime. Subcontractor will not be
entitled to additional compensation for work performed outside of regular
working hours, except as authorized in writing by Contractor. Provided that
Subcontractor is not in default under the Contract, and Contractor has issued
the aforesaid authorization, there shall be added to the Contract Price an
actual out-of~pocket amount equal to : (i) additional wages actually paid, at
rates which have been approved by Contractor; (ii) taxes imposed by law on such
additional wages; (iii) premiums for worker's compensation and liability
insurance if required to be paid on such additional wages.
WRITTEN AUTHORIZATION FOR OVERTIME WHICH EXCEEDS $500.00 IN ANY ONE WEEK
SHALL BE INVALID UNLESS CONFIRMED IN WRITING BY Contractor's PROJECT MANAGER IT
BEING UNDFRSTOOD THAT CONTRACTOR'S ON-Sit SUPERINTENDENT SHALL ~OT HAVE
AUTHORITY TO AUTHORTZE SUCH OVERTIME WHTCH EXCEEDS 5500 go IN ANY ONE WEEK
ARTICLE 14. SHOP DRAWINGS AND SAMPLES
14.1 The term "shop drawings" means: fabrication, erection, layout and
setting drawings; manufacturers standard drawings; schedules; descriptive
literature, catalogs and brochures; performance and test data; and all other
drawings and descriptive data pertaining to materials, equipment, systems and
methods of construction as may be required to show that the materials,
equipment, systems, and methods of construction and the position thereof conform
to the requirements of the Contract Documents. The term "manufactured" applies
to standard units usually mass produced, and the term "fabricated" applies to
items specifically assembled or made out of selected materials to meet
individual design requirements. Shop drawings shall establish the actual detail
of all manufactured or fabricated items; indicate proper relation to adjoining
work; amplify design details in proper relation to physical spaces in the
structure; and incorporate minor changes of design or construction to suit
actual conditions.
14.2
The term samples" means natural materials, fabricated items, equipment, devices,
appliances or parts specified in the Contract Documents, and any other samples
as may be required by Architect/Engineer to determine whether the kind, quality,
construction, workmanship, finish, color
<PAGE>
and other characteristics of the materials etc., proposed by Subcontractor
conform to the required characteristics of the various portions of the Work.
14.3 Subcontractor shall promptly submit all shop drawings and samples as
to cause no delay in the Work and Other Work. Subcontractor shall submit all
shop drawings and samples through Contractor for Architect/Engineer's review.
Review by Architect/Engineer shall not relieve Subcontractor from its
responsibility in preparing and submitting adequate and accurate shop drawings
and samples. By submitting shop drawings and samples, Subcontractor represents
and warrants that it has determined and verified all materials, field
measurements, and field construction criteria pertaining thereto, and has
checked and coordinated this information with the Work, Other Work and the
Contract Documents. Any submission which, in Architect/Engineer's opinion is
incomplete, contains numerous errors or has not been checked or only checked
superficially, will be returned not reviewed by Architect/Engineer for
resubmission by Subcontractor.
14.4 In reviewing shop drawings, Architect/Engineer need not verify
dimensions and field conditions. Architect/Engineer will review shop drawings
and samples only for conformance with the design concept of the Work and for
general detailing. Architect/Engineer's review shall not be construed as a
complete check nor shall it relieve Subcontractor from responsibility for any
deficiency that may exist or from any departures or deviations from the
requirements of the Contract Documents, unless Subcontractor has, in writing,
specifically called Architect/Engineer's attention to each specific deviation at
the time of submission. Nor shall Architect/Engineer's review relieve
Subcontractor from responsibility for errors in shop drawings; responsibility
for proper fitting of the Work, the necessity of furnishing any Work required by
the Contract Documents which may not be indicated on shop drawings when
reviewed; and the necessity of providing sufficient quantities of items.
14.5 Shop drawings must be properly identified with the name of the Project
and dated. Submission must be accompanied by a letter of transmittal referring
to the name of the Project and to the Specification section number for
identification of each item, and stating qualifications, departures or
deviations, if any, from the Contract Documents. Shop drawings. for each portion
of the Work, shall be numbered consecutively and the numbering system shall be
retained throughout all revisions. Each drawing shall have a clear space for the
stamp of Architect/Engineer.
14.6 Subcontractor shall submit reproducible sepia transparencies and
prints of each shop drawing as requested by Contractor, and such other drawings
as required under the various sections of the Specifications until final
approval by Architect/Engineer is obtained. Subcontractor shall submit copies in
number as requested by Contractor of manufacturers' descriptive data, drawings,
and literature for materials, equipment and fixtures, including catalog sheets,
showing dimensions, performance characteristics and capacities. wiring diagrams
and controls; schedules; and other pertinent information as required or
requested.
14.7 Subcontractor shall make any corrections required by
Architect/Engineer and shall resubmit corrected shop drawings or new samples
until approved. Subcontractor shall direct specific attention in writing to
revisions other than the corrections requested by Architect/Engineer.
14.8 No portion of the Work requiring a shop drawing or sample submission
shall be commenced until the submission has been approved in writing by
Architect/Engineer. All such portions of the Work shall be in accordance with
Architect/Engineer's approved shop drawings and samples.
14.9 If a considerable range of color, graining texture or other
characteristic may be anticipated in finished products, a sufficient number of
samples of the specified materials shall be furnished by
<PAGE>
Subcontractor to indicate the full range of such characteristics which will
be present in the furnished products; and such products delivered or erected
without submittal and approval of full range samples shall be subject to
rejection. Except for range samples, and unless otherwise called for in the
Specifications, samples shall be submitted in duplicate. All samples shall be
marked, tagged or otherwise properly identified with the name of Subcontractor,
the name of the Project, the purpose for which the samples are submitted and the
date, and shall be accompanied by a letter of transmittal containing similar
information, together with the Specification section number or drawing number
concerning which the sample is submitted.
ARTICLE 15. PROTECTION/SAFETY AND ACCIDENT PREVENTION/CONSTRUCTION
PRACTICES AT THE SITE
15.1 Subcontractor shall continuously protect the Work, Other Work, and the
property of Owner and others from damage, injury or loss arising in connection
with the Work. Owner and/or Developer or Contractor shall not be responsible for
any loss or damage to the Work, however caused, until after final acceptance
thereof by Developer, nor shall Owner, Developer or Contractor be responsible
for loss of or damage (however caused) to materials, tools, equipment,
appliances and other personal property of Subcontractor used in the performance
of the Work.
15.2 Subcontractor shall remove all snow and ice as may be required or
requested for the proper protection and prosecution of the Work. Subcontractor
shall provide and maintain adequate protection against weather so as to protect
the Work from injury or damage.
15.3 Subcontractor shall employ only methods of construction, erection,
hoisting, rigging, forming, scaffolding, and cribbing, and use only tools,
structures, etc., at the Project site which conform to OSHA and other Legal
Requirements.
15.4 Subcontractor shall confine its equipment, the storage of materials
and the operations of workers to the areas permitted by Legal Requirements or as
may be established by Contractor, and shall not unreasonably encumber the
Project site with equipment and materials.
15.5 Subcontractor shall enforce Contractor's instructions and all Legal
Requirements regarding signs, advertisements, fires, smoking, alcoholic
beverages, and the possession of firearms by any person at the Project site.
15.6 Subcontractor shall prevent dust and smoke from interfering with the
normal activities of others.
15.7 Subcontractor, as necessary for the Work, shall provide flagmen, erect
proper barricades and other safeguards, and post danger signs and other warnings
as warranted by hazardous and existing conditions.
15.8 Subcontractor hereby represents that it has fully familiarized itself
with the loss prevention, safety and protection clauses of the Special
Conditions to the Subcontract; to the full extent stated therein, Subcontractor
has responsibility for maintaining a proper and sufficient safety and loss
prevention program covering the Work and covering its employees, agents and
subcontractors while at the Project site. In the event Contractor institutes a
safety and loss prevention program affecting the entire Project, Subcontractor
shall comply with such program. Subcontractor shall designate a responsible
member of its organization whose duties shall include loss and accident
prevention and
<PAGE>
who shall have the responsibility and full authority to enforce the
aforesaid programs. This person shall hold meetings with the representatives of
Other Subcontractors to ensure that all workers and subcontractors understand
and comply with the programs. Subcontractor shall cooperate fully with
Contractor, all insurance carriers, and all loss prevention engineers and their
personnel regarding loss and accident prevention. Subcontractor recognizes that
its performance of the Subcontract and operations attendant thereto, may
necessarily be carried on adjacent to and within the right of-way of the Owner.
The tracks within this right of way may be operating tracks, and no changes in
operating schedules are contemplated to accommodate Subcontractor's operations.
15.9 Subcontractor shall promptly report in writing to Contractor and to
Subcontractor's insurance carriers all accidents arising out of, or in
connection with, the performance of the Work, whether on or off the Project
site, which caused death, bodily injury or property damage, giving full details
and statements of witnesses. In addition, if death or serious injuries or
serious damages are caused, the accident shall be reported to Contractor
immediately by telephone or in person.
15.10 Subcontractor, its subcontractors and suppliers, shall cooperate
fully with all interested parties regarding claims handling procedures, and
Subcontractor shall cause to be provided such legal defense as is required by
the provisions of Paragraph 12.3 hereof.
15.11 In an emergency affecting life, the Work, Other Work, or Owner's
property, Subcontractor, without special instructions or authorization from
Contractor, shall take the action necessary to deal adequately with such
emergency. Notice of any such action shall be given by Subcontractor to
Contractor as soon as is practicable.
15.12 All areas of the Work shall be maintained by Subcontractor in a neat
and orderly condition and free from accumulation of waste materials and rubbish
during the entire construction period. crates, cartons, flammable waste
materials, and trash shall be removed by Subcontractor from Work areas at the
end of each working day to a location directed by Contractor. kept All its
15.13 Subcontractor shall clean and maintain the Work and the area in which
the Work is in progress, as required by the Contract or as directed by
Contractor.
15.14 When directed by Contractor, Subcontractor shall dismantle and remove
from the Project site all construction and installation equipment, fences,
scaffolding, shanties, surplus materials, rubbish and supplies belonging or
attributed to Subcontractor or the Work.
ARTICLE 16. CORRECTION OF WORK
16.1 If Contractor deems it inexpedient to repair damage to property caused
by Subcontractor or its subcontractors or suppliers, to correct improper Work,
or to insist on completion of uncompleted Work, a deduction from the Contract
Price as determined by Contractor shall be made.
16.2 Subcontractor shall promptly remove and replace all Work rejected by
Contractor as falling to conform to the Contract Documents, and Subcontractor
shall pay the expense of making good all Other Work destroyed or damaged by such
removal or replacement. Contractor to advise if our work is unsatisfactory prior
to its being covered or encased as long as Contractor has prior knowledge of
such deficiencies.
<PAGE>
16.3 If Subcontractor does not promptly correct or remove and replace
rejected Work, Contractor may, at the expense of Subcontractor, correct or
remove and replace the rejected Work. This right is in addition to all other
rights which Contractor has under the Contract Documents.
ARTICLE 17. ACCEPTANCE OF THE WORK/EARLY OCCUPANCY
17.1 The Work will be accepted, after inspection by Architect/Engineer,
when, in its, Contractor's opinion, the Work has been completed in accordance
with the Contract Documents except for the most minor of adjustments.
17.2 Before acceptance of the Work, Owner may use or occupy space or spaces
in the Project.
17.3 In the event that, under Paragraph 17.2, Owner desires to use or
occupy a portion of the Project prior to completion of the entire Project,
Subcontractor shall cooperate with Developer and Contractor in promptly making
available for Owner's use so much of the Work as is necessary for the Owner's
use or occupancy.
17.4 In respect of partial occupancy or use under Paragraph 17.2 hereof,
Subcontractor shall have no responsibility for increased expenses of operating
the building systems that would not have been incurred if there were no such
partial occupancy. Owner's use or occupancy of such portion of the Project shall
not constitute acceptance of any Work, materials and equipment which are not in
accordance with the Contract Documents, nor relieve Subcontractor from its
obligations to complete the Work and to remain responsible for loss or damage
due to or arising out of defects in, or malfunctioning of any Work, nor relieve
Subcontractor from any unfulfilled obligations or responsibilities under the
Contract.
ARTICLE 18. PAY~IENTS/NO LIFNS
18.1 CONTRACTOR SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY AMOUNTS
DUE OR CLANED TO BE DUE SUBCONTRACTOR FOR ANY REASON WHATSOEVER EXCEPT TO THE
EXTENT THAT CONTRACTOR HAS ACTUALLY RECEIVED FUNDS FROM DEVELOPER SPECIFICALLY
DESIGNATED FOR DISBURSEMENT TO SUECONT? ACTOR RECEIPT OF THESE FUNDS BY
CONTRACTOR SHALL BE A COND~ON PRECEDENT TO SUBCONTRACTOR'S RIGHT TO RECEPIB
PAYMENT Subcontractor acknowledges that the Contract Price must be paid from
funds to be received by Contractor from Developer. Accordingly, Subcontractor
hereby:
(a) agrees that the Contract Price shall be a non-recourse obligation and
that the liability of Contractor shall be limited to any funds actually received
by Contractor from the Developer attributable to Subcontractor's Work; and
waives Subcontractor's rights to assert any claim, demand, right, or cause
of action against Contractor for any portion of the Contract Price (unless and
to the extent that Contractor actually receives funds from the Developer
attributable to Subcontractor's Work).
<PAGE>
Subcontractor agrees that this Section does not merely relate to timing of
payment but rather establishes a contingency upon which payment to Subcontractor
(or any of its subcontractors) shall rely.
18.2 Promptly after acceptance of Subcontractor's bid, Subcontractor shall
prepare for Contractor's approval a Trade Payment Breakdown showing the values
of the various portions of the Work in such detail and with such supporting
evidence as Contractor may require. No Application for Payment by Subcontractor
will be processed by Contractor until the aforesaid approval has been given.
18.3 On or before the 20th day of each month during the progress of the
Work, Subcontractor shall submit to Contractor an Application for Payment in
affidavit form, sworn to by a principal officer of Subcontractor, which shall
include the following:
18.3.1 The names and addresses of all Subcontractor's subcontractors and
suppliers;
18.3.2 The amount of each subcontract or the price of each purchase order
for supplies;
18.3.3 the amount paid to Subcontractor to the date of the Application for
Payment;
18.3.4 the amount requested by Subcontractor on the current Application for
Payment;
18.3.5 the balance that will be due after the payment requested is made;
18.3.6 any additions to and subtractions from the Contract Price in
accordance with the Contract Documents;
18.3.7 the amount being withheld for retention;
18.3.8 the percentage of completion of each detailed portion of the Work
listed in the Trade Payment Breakdown.
18.4 Each Application for Payment shall provide for a retention of ten
percent (10%) of the amount due until completion of the Work and acceptance
thereof by Contractor and Developer. Subcontractor shall furnish with each
Application for Payment such documentation, material invoices, evidence of
equipment purchases, rentals and other details of cost as Developer, Owner's
and/or Developer's construction lender, or Contractor may require from rime to
time. With Contractor's approval, an Application for Payment may reflect Work
that is expected to be completed by the end of the month to which the
Application for Payment is applicable.
18.5 With each Application for Payment, Subcontractor shall submit to
Contractor a duly executed waiver or partial waiver of lien in the form approved
by Contractor, and acknowledged under oath by a principal officer of
Subcontractor. In addition, Subcontractor shall, with each Application for
Payment, furnish an affidavit, in the form approved by Contractor and sworn to
by a principal officer of Subcontractor, stating the amount of prior payments to
Subcontractor's subcontractors and suppliers in respect of the Project and the
amount to be owing and due by Subcontractor to its subcontractors and suppliers
through the end of the period covered by the Application for Payment.
18.6 Payments for stored material shall only be made if Contractor
specifically approves in writing. If payments are to be made on account of
materials and equipment not incorporated in the Work but delivered and suitably
stored at the Project site or at some other location agreed upon by Contractor
<PAGE>
in writing, such payments shall be conditioned upon submission by
Subcontractor of bills of sale and other documents satisfactory to Developer's
and/or Owner's construction lender to establish Owner's title to such materials
and equipment and to otherwise protect Developer's and/or Owner's interests
including applicable insurance and transportation to the Project site.
18.7 Contractor may decline to approve an Application for Payment in whole
or part and/or may decline to make a payment because of evidence of:
18.7.1 defective Work or material;
18.7.2 claims filed or evidence indicating probable filing or making of
claims;
18.7.3 failure of Subcontractor to make payments to its subcontractors or
to suppliers for labor, services, materials or equipment;
18.7.4 reasonable doubt that the Work can be completed for the unpaid
balance of the Contract Price;
18.7.5 damage to Other Subcontractors;
18.7.6 unsatisfactory prosecution of the Work;
18.7.7 erroneous estimates by Subcontractor of the value of the Work
performed;
18.7.8 unauthorized deviations from the Contract Documents;
18.7.9 any other failure of Subcontractor to perform pursuant to the
Contract.
18.8 When, as, and if all the above grounds for declining approval are
removed, payment shall be made for amounts withheld.
18.9 Final payment of the unpaid balance, including retention, shall be
made on an Application for Final Payment in form approved by Contractor.
18.10 The Application for Final Payment shall be accompanied by the same
type of documents, information, and affidavits as set forth hereinabove for an
application for progress payment except, however, that the following additional
conditions shall be fulfilled:
18.10.1 a full and final release and waiver of all liens and claims in
connection with the Work shall be submitted by each of Subcontractor's
subcontractor or supplier who has performed work or supplied materials to the
Project on behalf of Subcontractor, such waiver to be in a form approved by
Contractor. In the event that any such release and waiver of lien is not or
cannot be furnished, then there shall be furnished to Contractor a bond or other
security satisfactory to Contractor to indemnify Owner, Developer or Contractor
against any such lien or claim;
18.10.2 Subcontractor shall have made or caused to have been made, all
corrections in the Work required to remedy any defects therein and obtain
compliance with the directions of Contractor and with the Contract;
<PAGE>
18.10.3 Subcontractor through Contractor shall have delivered to Developer
all written guarantees, warranties, bonds, operating and maintenance manuals,
instructions and as-built drawings required by the Contract Documents;
18.10.4 Architect/Engineer shall have issued a Final Certificate for
Payment, if required by Developer;
18.10.5 the General Release referred to in the following paragraph has been
delivered.
18.11 Acceptance by Subcontractor of the Final Payment shall constitute a
release of Owner, Developer and Contractor of and from all liability for all
things done or not done or furnished or not furnished in connection with the
Work, and for every act, omission, or neglect, if any, relating to or arising
out of the Project. Before final payment, Subcontractor shall also execute and
deliver a General Release to Contractor naming Owner, Developer and Contractor,
said General Release to be in such form as Contractor may provide.
18.12 To the extent permitted by law, Subcontractor shall not suffer or
permit any lien or other encumbrance to remain of record as a claim against the
building or the Project site or against any monies due or to become due for any
Work performed or materials furnished by. to or on behalf of Subcontractor, or
any of its subcontractors or suppliers; nor shall Subcontractor suffer or permit
any such lien or other encumbrance to be so filed because of any claim or demand
against, or any action or non-action of, Subcontractor or any of its
subcontractors or suppliers. If any such lien or other encumbrance has been so
filed, Subcontractor shall promptly cause the removal or discharge thereof from
the building and the Project site, and no payment shall be made to Subcontractor
until said lien or other encumbrance has been removed or discharged or there has
been furnished to Contractor, Developer and Owner a bond or other security
satisfactory to Contractor, Developer and Owner protecting and holding harmless
the Developer, Owner and Contractor from any liability. fees, or costs
(including, without limitation. attorneys' fees) in connection therewith.
18.13 The failure of Subcontractor after ten (10) days written demand by
Developer or Contractor, to remove or discharge a lien or other encumbrance
filed by Subcontractor or by Subcontractor's subcontractor or supplier, shall
constitute breach of the Contract.
18.14 No certificate issued or payment made to Subcontractor nor any
partial or entire use or occupancy of the Project site shall be an acceptance of
any Work not in accordance with the Contract Documents or be deemed evidence of
proper performance of the Work. either in whole or in part, or be construed as
an acceptance of defective workmanship or improper materials.
18.15 Subcontractor shall have delivered to Contractor all reproducible
final drawings showing the Work "as built,,, and all guarantees and operation
and maintenance instructions for equipment and apparatus.
ARTICLE 19. CHANGE ORDERS/CLAIM FOR EXTRA COST/'TIME EXTENSIONS
19.1 Contractor may order changes in the Work consisting of additions,
deletions, and revisions. The Contractor shall have the right to delete Work
from the Contract for any reason whatsoever and to direct Other Subcontractors
to perform such work, and in such event Subcontractor shall have no claim
against Developer, Contractor or Owner for such deletion of work or for breach
of Contract.
<PAGE>
The Contract Price and completion time requirements shall be adjusted as
set forth below to the extent that Developer in its sole discretion agrees to
such adjustment. All changes in the Work shall be authorized only by written
Change Orders executed by Contractor's Project Manager except that emergency
work may be authorized by Contractor through an order signed by its field
superintendent. All changes in the Work shall be performed pursuant to the
Contract Documents.
19.2 Any increase or decrease to the Contract Price resulting from a change
in the Work shall be determined in one or more of the following methods as
deemed applicable by Contractor to a specific situation:
19.2.1 by mutual acceptance of a lump sum, properly substantiated and
itemized;
19.2.2 by unit prices stated in the Contract or if none are stated, as
agreed upon;
19.2.3 by the sum of the following in the order stated: (i) the actual and
reasonable out-of-pocket cost of additional materials; (ii) the actual and
reasonable out-of-pocket cost of additional labor base wage only); (iii) an
amount for overhead and profit for Subcontractor and its subcontractors equal in
the aggregate to twenty-one percent (21 %) of the actual and reasonable
out-of-pocket costs of base wages and material, and (iv) actual additional
out-of-pocket employee benefits, insurances, welfare, taxes and other fringes.
19.3 If Subcontractor objects to the method of determining the increase or
decrease of the Contract Price deemed applicable by Contractor, Subcontractor
shall nonetheless promptly proceed with the additional, revised or deleted Work
involved. The increase or the decrease for such Work shall then be resolved by
the parties by agreement or otherwise on the basis of value but in no event
shall such value exceed the actual and reasonable out-of-pocket cost or cost
savings to the Subcontractor of the additional, revised, or deleted Work.
19.4 When both increases and decreases are involved in any one change, the
allowance for overhead and profit shall be figured on the basis of the net
increase, if any.
19.5 If Subcontractor claims an increase in the Contract Price or an
extension in the completion rime requirements by reason of a change in the Work,
Subcontractor shall give Contractor written notice thereof within ten (10) days
after Subcontractor's knowledge of the occurrence of the matter giving rise to
such claim. This notice shall be given by Subcontractor before proceeding to
execute the changed Work, except in an emergency endangering life or property in
which case Subcontractor shall proceed in accordance with Paragraph 15.11
hereof. No such claim shall be valid unless notice is given as aforesaid.
Subcontractor shall proceed to execute the Work, even though the increase or
time extension has not been agreed upon.
19.6 Should Subcontractor be obstructed or delayed in the commencement,
prosecution or completion of the Work, without fault on its part, by reason of:
failure to act, direction, order, neglect, delay or default of the Developer,
the Architect/Engineer, the Contractor, or any Other Subcontractor employed upon
the Project; by changes in the Work; fire, lightning, earthquake, enemy action,
act of God or similar catastrophe; by Government restrictions in respect to
materials or labor; or by an industry-wide strike beyond Subcontractor 5
reasonable control, then Subcontractor shall be entitled to an extension of time
to perform the Work which shall be equal to the time lost by reason of any or
all of the causes aforesaid, but no claim for extension of time on account of
delay shall be allowed unless a claim in writing therefor is presented to
Contractor with reasonable diligence but in any event not later than ten (10)
days after the commencement of such claimed delay. Except for the causes
specifically listed above in this Paragraph 19.6, no other cause or causes
of delay shall give rise to an extension of time to perform the Work. The
granting of an extension is conditioned upon Subcontractor's timely submission
of the aforesaid written notice. Subcontractor expressly agrees not to make and
hereby waives any claim for damages. including those resulting from increased
labor or material costs. on account of any delay obstruction or hindrance for
any cause whatsoever whether or not foreseeable and whether or not anticipated
including but not limited to the aforedescribed causes and agrees that the sole
right and remedy therefor shall be an extension of time. provided the requisite
condition as to written claim has been met.
19.7 Subcontractor shall not be allowed an extension of time unless
Subcontractor has established to Contractor's satisfaction that the delay
claimed by Subcontractor is to a portion of the Work on the critical path of the
work schedule.
19.8 IT IS EMPHASIZED THAT NO MONETARY RECOVERY MAY BE OBTAINED BY
SUBCONTRACTOR FOR DELAY TI\11E EXTENSTONS FOR DELAY ARE LIMITED TO TT{E SPECIFIC
CAUSES SET FORTH IN PARAGRAPH 19 6 HEREOF AND. THEN ONLY UPON COMPLIANCE WTTH
THE N~CE AND PROOF REOUTREMENTS OF PARAGRAPHS 19 6 AND 19 7 HEREOF
19.9 IT TS SPECTFICALLY AGREED BY SUBCONTRACTOR THAT UNDER NO CIRCUMSTANCES
WILL SUBCONTRACTOR LOOK TO OR ~AKE ANY CLAIM AGAINST CONTRACTOR OR
ARCHTTECT/ENGTNEER FOR THE CONSEOUENCES OF ANY DELAY RESU~NG FROM DIRE~ONS GIVEN
OR NOT GIVEN BY CONTRACTOR INCLUDING SCHEDULING AND COORDINATTON OF THE WORK OR
RESULTING FROM ARCHITECT/ENGINEER'S PREPARATION OF DRAWINGS AND SPECIFICATIONS
OR REVIEW OF SHOP DRAWINGS
ARTICLE 20. TERMINATION BY CONTRACTOR
In addition to all termination rights for cause under the Contract
Documents, Contractor shall have the right, for any reason or for no reason, and
at any time, by written notice to Subcontractor, to terminate the Contract and
require Subcontractor to cease the Work hereunder. In the event that Contractor
shall terminate the Contract pursuant to this Article 20, Subcontractor shall be
paid a pro rata portion of the Contract Price based on the Work in place prior
to such termination as Contractor shall determining, and Subcontractor shall be
entitled to no other payment.
ARTICLE 21. COOPEPATJON WITH LENDERS
Subcontractor shall at all times cooperate, to the course of its
performance of the Work and of the Contract, with any entity or entities
providing financing for the Project, and shall agree in writing to all changes
and modifications to the Contract Documents which are requested by such entity
or entities that do not impose any substantial additional burdens on
Subcontractor or materially reduce or limit Subcontractor's rights.
Subcontractor shall supply such information and certifications as reasonably may
be required from time to time by the aforesaid lending entity or entities in
order that Owner or Developer can satisfy conditions to lender's obligations to
make advances upon Owner's or Developer's construction loan.
<PAGE>
SPECIAL CONDITIONS to Contract dated May 15,1996 between Lehrer McGovern
Bovis, Inc. & U.S. Bridge of New York, Inc.
Grand Central Terminal Restoration/Retail LMB Project No.2458.03
Trade: Structural Steel/ Metal Deck/Selective Demolition
The provisions of these Special Conditions modify or clarify and/or
add to the Contract Documents. To the extent that there is any
contract or ambiguity between the provisions of these Special
Conditions and the terms and conditions of the Contract Documents, the
stricter, more comprehensive, more demanding requirement or provision
shall control, subject to Paragraph 4 of the Trade Contract Agreement
and Articles 18 and 19 of the General Conditions. Unless otherwise
defined herein, all terms shall be defined as set forth ~ the Trade
Contract Agreement, General Conditions and Project Specifications.
TLME RESTRICTIONS
1. All work on occupied tenant towers shall be on off hours which are
defined as 6:00 P.N{. through 7:00 A.NL Monday through Friday, and
1:00 P.M. through 6:00 A.M. Saturday, and all day Sunday.
2. No movement of material is permitted through public areas between
hours of 7:00 A.M. to 10:00 A.~L and 4:00 P.M. to 7:00 P.M.
3. Personnel access between hours of 10:30 P.M. to 5:30 A.M. is limited
to 105 East 4~d Street. All other times use Elevator "B" at 43rd
Street entrance.
MATERIAL/PERSONNEL ACCESS
4. All access into the building shall be through entrances designated by
the Contractor. Subcontractor's personnel shall abide by all security
and building access requirements required by the building management.
5. This Subcontractor is fully aware of the difficulties in facilitating
deliveries and of unloading materials, equipment, and manpower at
this site. The cost of short bed trucks, off hour deliveries of
equipment and associated charges are included in the subcontract
price. This Subcontractor will coordinate deliveries to comply with
the requirements of the New York City Department of Transportation
and other governing agencies. Trucks and materials shall not block
the sidewalks.
6. Material may be delivered through the 43rd Street delivery entrance
off Lexington Avenue or via rail.
7. Subcontractor may access the terminal via Metro-North work train.
Work trains may be made available to deliver material from BN yard
(225th Street off Broadway) to GCT.
a) A minimum of 12 days advance notice is required.
b) Subcontractor to assume all responsibility to schedule and pay
for the use of a Metro-North work train.
<PAGE>
SPECIAL CONDITIONS to Contract dated May 15,1996 between Lehrer McGovern
Bovis, Inc. & U.S. Bridge of New York, Inc.
Grand Central Terminal Restoration I Retail LMB Project No.2458.03
Trade: Structural Steel/ Metal Deck/Selective Demolition
8. Freight access during construction period is permitted via use of
Elevator "B" at 43rd Street loading area and is limited to the hours
of 7:00 A.M. to midnight, 5 days/weeks without charges. There will be
charges at other hours.
9. Subcontractor shall prepare and submit for review, coordination and
approval site logistic plan indicating personnel, material and
equipment to be used within Subcontractor's work areas.
LIFE SAFETY
10. Subcontractor is advised and understands that all areas of Grand
Central Terminal are designated "No Smoking". The Contractor will
enforce this requirement strictly. Violating personnel will incur
minimum fine of $500.00 (five hundred dollars) per occurrence.
11. Gasoline/gas powered tools may not be used in the tunnel. Torches for
soldering or burning are excluded from this restriction, subject to
the conditions of paragraph 16 below.
12. Subcontractor is responsible for supplying all labor, material and
equipment for firewatches including fire extinguishing equipment
during welding, burning and similar operations.
13. Subcontractor must provide all necessary and required shields,
screens and protective blankets for personnel and material during all
welding, burning or other similar operations.
14. Subcontractor shall not cause any n9ise to exceed level of 50db at
any point 3'4)" away from space or area at which work is being
conducted. Contractor will utilize his best effort within industry
standards to comply Le. mufflers, etc. customary to this Trade
Contractor's work
15. Prior to loading of any floors in Grand Central Terminal for storage
or delivery purposes Subcontractor shall obtain authorization in
writing from General Contractor to assure that allowable uniform live
loads are not exceeded. Allowable loads on structure are stated in
the specifications.
16. No burning or welding is allowed prior to obtaining written approval from
Lehrer McGovern Bovis.
PROTECTION OF METRO-NORTH
<PAGE>
SPECIAL CONDITIONS to Contract dated May 15,1996 between Lehrer McGovern
Bovis, Inc. & U.S. Bridge of New York, Inc.
Grand Central Terminal Restoration I Retail L~IB Project No.2458.03
Trade: Structural Steel/Metal Deck/Selective Demolition
17. All shutdowns of active permanent or temporary services
(Subcontractor tie-ins, ~.e. electrical, water, etc.) shall be
coordinated through the General Contractor. Shutdowns may be required
to be performed during off-hours. Any and all costs of off-hours work
required for shutdown tie-in is included in the Contract price and
shall not be the basis of a request for change order. where such
shutdowns are required, Subcontractor shall provide written
notification at least seventy-two (72) hours in advance and must
obtain approval from the Owner/General Contractor prior to
proceeding.
18. Track outages must be scheduled in advance through Contractor. Track
outages may be allowed from 9:30 P.M. to 5:30 A.M. during weekdays
and all hours during Saturday and Sunday. Third rail will be
de-energized by Metro-North.
19. Request for track outages are to be submitted (14) days in advance of
the date such outage is desired. No work may actually commence until
an authorized Metro-North representative affirmatively advises that
necessary protection forces are stationed, and that work may proceed.
20. Subcontractor may not claim for any lost time due to non availability
of track outages, or conflict with usage by Metro-North.
Subcontractor acknowledges that the track outage can neither be
guaranteed nor accurately predicted.
21. Except as expressly provided herein, use of other Metro-North
facilities including, but not limited to elevators and public toilets
is prohibited. Contractor will designate a temporary toilet facility
for use of Subcontractor.
22. Under no circumstances shall Subcontractor personnel cross an active
track without supervision of a Metro-North flagman. All request for
flagman shall be made in writing to Contractor no less than 14 days
in advance. No delay claims shall be made due to unavailability of
flagman.
23. No construction related activity shall interfere with Metro-North's
tenant and/or operation and public use of space.
24. Subcontractor shall not reduce width of any passage entrance or other
access to Grand Central Terminal without prior written approval from
the General Contractor.
25. No Subcontractor signage shall be displayed except as required by NYC
Building Department
26. Subcontractor equipment and materials shall at all times maintain 16'~"
clearance from top of rail.
<PAGE>
SPECIAL CONDITIONS to Contract dated May 15,1996 between Lehrer McGovern
Bovis, Inc. & U.S. Bridge of New York, Inc.
Grand Central Terminal Restoration I Retail L~ Project No.2458.03
Trade: Structural Steel/ Metal Deck/Selective Demolition
27. All Sub contractor personnel traveling within 15'~" of track
centerline shall be accompanied by a MetroNorth flagman.
28. When loading a flatbed, the load shall not exceed the width of the
car (10'O") and height of 12' from the top of the rails.
29. Subcontractor shall ensure that all work areas are kept flee of
accumulations of waste and rubbish, that occupied areas and
passageways are kept unobstructed, and that work activities are
confined to authorized areas.
30. Subcontractor shall strictly adhere to all instructions and
directions issued by Metro~North to prevent disturbance or
interference with its business operations and shall promptly comply
with any stop work orders, and shall at all times manage the Work to
minimize disturbance or interference to Metro North's operations.
31. Subcontractor shall at all times enforce compliance with Owner's rules
and regulations governing its properties and operations.
32. Subcontractor shall direct the course of its construction operations
so as to safeguard the tracks, rolling stock and other equipment and
appurtenances of Metro-North from being damaged in any manner and
agrees to be financially responsible for same.
33. Subcontractor shall comply with all requirements of Metro-North
applicable to this type of construction and agrees not to perform any
operations which might foul the right-of-way until Subcontractor has
complied with such rules and procedures.
$4. An operating track will be considered fouled when any equipment or
material is or may be brought closer than fifteen (15) feet from
gauge of near rail. A crane, derrick or similar piece of equipment
shall also be considered as fouling the track when it is brought over
the right-of-way within the prism created by the ten-foot rule. The
same rules will apply to the fouling of power, communication and
signal lines or to storage of materials.
35. Without regard to the rules on fouling, whenever any part of the Work
may affect the safety or movement of trains, the method of doing the
same shall first be submitted to Contractor for approval, and may not
be performed without such approval. Contractor's approval shall not
release Subcontractor from any of his obligations under this
Agreement.
<PAGE>
SPECIAL CONDITIONS to Contract dated May 15,1996 between Lehrer McGovern
Bovis, Inc. & U.S. Bridge of New York, Inc.
Grand Central Terminal Restoration I Retail L~ Project No.2458.03
Trade: Structural Steel/Retail Deck/Selective Demolition
36. Subcontractor may not store materials or equipment upon Metro North
property without first obtaining written permission from Contractor.
HISTORIC L~NDMAKK
37. This project takes place in an historic landmark building.
Subcontractors shall treat materials, fixtures and objects regardless
of apparent condition with utmost care-
38. No work involving cutting or removal of historic surfaces or items
shall occur without Architect/Engineer's 'S approval.
39. As inaccessible areas are exposed by surface removal, Subcontractor
may be required to temporary halt work, at no additional cost, for
further architectural investigation and recording.
SITE I~WESTIGATION
40.
Subcontractor shall carefully inspect the site of the Work, and shall
independently and fully satisfy itself with respect to all surface, subsurface,
concealed, exposed and other physical conditions at the site, all general and
local conditions, and all other matters which might in any way affect the
Contract or its performance. Neither the Owner, Contractor, or the Architect/
Engineer has made and shall not make representation as to the nature, existence
or location of any conditions, existing installations, or obstacles that that
may be encountered, whether concealed or exposed, or any general or local
conditions which may in any way affect the Contract or its performance, and
nothing contained in the Contract Documents shall be construed as such a
representation. [omitted] The Subcontractor shall satisfy itself as to the
accuracy of all grades, elevations, dimensions and locations. In all cases of
interconnection of its Work with existing or other work, it shall verify at the
site all dimensions relating to such existing or other work. Any errors due to
the Subcontractor's failure to so verify all such grades, elevations, locations
or dimensions shall be promptly rectified by the Subcontractor without any
increase to the Contract Price.
Subcontractor hereby represents that it is experienced in the
construction of buildings in New York City, familiar with all
applicable building codes, standards, and regulations, to our trade and
aware that conditions encountered in the course of substantial
renovation projects frequently are not anticipated or accommodated by
the Architect/Engineer's plans and specifications. Subcontractor shall
expect adjustments and modifications to the Work as called
<PAGE>
SPECIAL CONDITIONS to Contract dated May 15,1996 between Lehrer McGovern
Bovis, Inc. & U.S. Bridge of New York, Inc.
Grand Central Terminal Restoration/Retail LMB Project No.2458.03
Trade: Structural Steel/Metal Deck/Selective Demolition
for in the Contract Documents in order to accommodate existing
conditions at the site as they eventually may be found to exist, and
shall perform such adjusted or modified work as per unit prices in
Contract.
THE SUBCONTRACTOR'S OBUG~ON TO PROCEED WITH WORK
41. Subcontractor shall at all times promptly proceed with the Work as
ordered and directed by Contractor in writing. Subcontractor shall not suspend
all or any part of the Work or refuse to comply, with any order or direction of
Contractor pending reasonable negotiating of any dispute or for any other
reason. Any such suspension or refusal shall be a material breach of the
Contract. Subcontractor may reserve whatever right, if any, Subcontractor may
have to make claim with respect to any order, direction, action or inaction of,
the Contractor by giving notice as required by Paragraph 45 of these Special
Conditions, and by advising in writing, prior to proceeding with the work in
question, that Subcontractor is proceeding under protest
HOLIDAY RESTRICTIONS
42. Subcontractor shall not schedule nor perform any activities that
require any overnight inspection or support of any kind by Contractor
or Metro-North or that interferes with the operation of trains or the
flow of passengers from I p.m. through midnight on the eve of each
holiday and from 12:01 a.~ through midnight the day of each holiday.
The holidays subject to the foregoing are:
o New Year's Day
o President's Day
o Memorial Day
o Independence Day
o Labor Day
o Thanksgiving Day
o Christmas Day
Subcontractor's compliance with the foregoing holiday scheduling
provisions shall in no way be a basis for any claim for delays or
additional payment under the contract.
43. In addition, Subcontractor shall not schedule nor perform any
activities that interfere with the operation of trains or the flow of
passengers from 1 p.~ through 9 p.m. on the eve of Rosh Hashanah, the
eve of Yom Kippur, the eve of the first day of Passover, and December
23rd.. Activities such as, but not limited to, the set-up, relocation
and dismantling of protective barriers, barricades, scaffolding an the
like, and any activities that produce loud noises, dusts, fumes,
<PAGE>
SPECIAL CONDITIONS to Contract dated May 15,1996 between Lehrer McGovern
Bovis, Inc. & U.S. Bridge of New York, Inc.
Grand Central Terminal Restoration I Retail L~~IB Project No.2458.03
Trade: Structural Steel/Metal Deck/Selective Demolition
airborne contaminants and other discharges will be considered as
interfering with the operation of trains and the flow of passengers.
44. The date 0(pound) observance at the worksite of all the foregoing
will be as determined by Metro~North. For any holiday that is to be
observed on a Sunday or Monday, the designated eve of such a holiday,
which will be subject to the above restrictions, shall be the
preceding Friday.
NOTICE
45. Notice of any claim by Subcontractor for extra compensation or damages
of any Sort shall be given in writing to Contractor within three (3) working
days after the first act, omission, occurrence, or circumstance upon which the
claim is based. The purpose of this notice is to give Contractor the opportunity
to promptly: (a) to cancel or revise orders or directions, change plans,
mitigate or remedy circumstances giving rise to the claim or take other action
that may be desirable, ~) to monitor and verify the facts and circumstances as
they occur, and (c) to verify any costs and expenses claimed by Subcontractor
contemporaneously as they are incurred. Notice is required whether or not
Contractor, the Owner, or the Architect/Engineer is aware of the facts or
circumstances which constitute the basis for Subcontractor's claim, and no
action or conduct of Contractor, the Owner, or the Architect/Engineer shall be
regarded as a waiver of such notice requirement, except only a written statement
to that effect signed by Contractor. Failure of Subcontractor to give written
notice as required shall conclusively be deemed to be a waiver and release of
any claim, and such notice shall be a condition precedent to the Subcontractor's
right to make any claim arising out of, under, or in connection with the
Contract or its performance.
GOVERNING LAW AND JURISDICTION
46. The Contract, and any and all questions and disputes arising out of or
relating to it, shall be governed by the laws of the State of New York.
47. Any action, proceeding1 claim, or cause of action brought by Contractor
or Subcontractor against the other, arising out of or relating to the
Contract or the breach thereof, shall be brought only in the Courts of
the State of New York, in the venue in which the project site is
located, and the parties hereby consent to the jurisdiction of said
courts for the purpose of any such action or proceeding.
MISCELL~NEOUS ITEMS
<PAGE>
SPECIAL CONDITIONS to Contract dated May 15, 1996 between Lehrer McGovern
Bovis, Inc. & U.S. Bridge of New York, Inc.
Grand Central Terminal Restoration/ Retail L~ Project: No.2458.03
Trade: Structural Steel/Metal Deck/Selective Demolition
4$. The Subcontractor represents and warrants that all shop drawings
shall be prepared by persons and entities possessing expertise and
experience in the trade for which the shop drawing is prepared.
49. All notices required to be given by Subcontractor under the General
Conditions shall be given by Subcontractor within seven (7) rather
than ten (10) days. Within three (3) days after such notice is given,
Subcontractor shall give to Contractor its best estimate (and reasons
therefor) of (a) the period of delay likely to ensue from the
circumstances set forth in the notice and ~) the steps which
Subcontractor has taken or intends to take to mitigate the effects of
such circumstances.
50. The Subcontract Price will not be increased and no extension of time
will be granted on account of errors, omissions, ambiguities or
conflicts in the Drawings and Specifications, or variances between
the Drawings and Specifications and such laws, ordinances,
regulations and rules, which Subcontractor recognized or reasonably
should have recognized and failed to report to Contractor.
51. If Subcontractor at any time after the date of this Agreement
discovers any errors, omissions, ambiguities or conflicts in or
between any Drawings and Specifications or any variances in any
Drawings and Specifications with any legal requirements,
Subcontractor shall notify Contractor in writing and await
Contractor's determination and clarification before proceeding with
the Work in question. Any Work performed before such determination
and clarification shall be at Subcontractor's sole risk and expense.
52. Subcontractor shall be responsible for laying out the Work and for
checking and for reporting to Contractor, for correction, any
inconsistencies in dimensions indicated on the Drawings.
Subcontractor shall in no case attempt to determine a dimension by
scaling a Drawing. The Concourse/Utilities Price and the Retail Price
will not be increased on account of any such inconsistencies in
dimensions.
53. Subcontractor shall keep an accurate record of all deviations from
the Drawings and Specifications which may occur in the Work as
actually constructed and all other conditions of the Work as actually
constructed. Upon completion 0(pound) the Work, Subcontractor shall
furnish to Contractor a full and complete set of such mylar as-built
drawings for all aspects of the Work not later than sixty (60) days
after completion of Subcontract. Final payment to Subcontractors will
not be made without acceptable as-built drawings having been
delivered to Contractor.
54. Time is of the essence of this Agreement. Subcontractor2s failure to
meet its Substantial Completion Date or the Final Completion Date may
cause increased costs and damages to Owner, including without
limitation, increased
<PAGE>
SPECIAL CONDITIONS to Contract dated May 15, 1996 between Lehrer McGovern
Bovis, Inc. & U.S. Bridge of New York, Inc.
Grand Central Terminal Restoration/ Retail L~ Project No.2458.03
Trade: Structural Steel/ Metal Deck/Selective Demolition
administrative costs, interest costs, loss of rental income and loss
of use, and Subcontractor shall be liable to Contractor and/or Owner
for delays.
55. If Contractor so authorizes Subcontractor, in writing, Subcontractor
shall proceed with and may requisition payment for the Work covered
by the Change Order in the absence of a fully executed Change Order.
56. Subcontractor shall warrant all of the Work for a period of two (2)
years from the issuance of certificate of final completion by Contractor or the
date of final payment, whichever occurs first, against any defective
workmanship, equipment or materials, and shall be responsible for any damage to
any other portion of the Work or the Project resulting therefrom. Subcontractor
shall promptly correct any such defect in the Work at Subcontractor's expense
upon notice from Contractor or Owner during such period, and shall be
responsible for all costs incurred in repairing or replacing any such defective
workmanship, equipment and materials and damage to other portions of the Work or
the Project In the event that Subcontractor performs any corrective work after
the first year of such two-year warranty period, Subcontractor's warranty with
respect to such corrective work shall extend until twelve (12) months alter such
corrective work was performed. Acceptance will occur on an area by area basis,
although warranty of the work shall be for a period of two years from issuance
of Owners certificate official completion.
<PAGE>
EXHIBIT "B" TO CONTRACT, DATED MAY 15,1996, BETWEEN LEHRER McGOVERN BOVIS,
INC. & US BRIDGE OF NEW YORK
Trade: Structural Steel/Metal Deck/Selective Demolition Grand Central
Terminal I Retail L~ Project ~2458.O3
1.This Scope of Work is intended to indicate, but not limit, die work to be
performed. The scope shall include, but is not limited to all necessary labor,
material, accessories, equipment, hardware, fasteners, tools, layout,
engineering, supervision, hoisting, scaffolding, shop drawings, packaging,
trucking, freight, delivery, permits, insurance, applicable taxes and all other
services required for die complete performance of die Structural Steel I Metal
Deck Selective Demolition and all related work for this project in accordance
with this Scope of Work and die Drawings and Specifications listed in Exhibit
"A" attached to die Subcontract.
2. The Work shall be furnished and installed in accordance with die
Drawings and Specifications prepared by die Architect and/or Engineer for die
Project. Any deviation from said Drawings and Specifications shall require prior
written approval from die Architect and/or Engineer and die General Contractor.
Any correction work required as a result of unapproved deviations shall be
charged to die Subcontractor.
3. Subcontractor acknowledges having visited die job site to familiarize
himself with die work area and all existing conditions. Subcontractor shall
field measure all existing conditions as required.
4. Subcontractor represents that he is familiar with and has expertise in
die performance of this trade. Further, die Subcontractor knows of; and agrees
to die Project requirements for premium quality consistent with a first class
building and working in a historic landmark type facilities in accordance with
the best practices of the trade, industry and Drawing and Specifications.
Subcontractor is aware of the Project Requirements regarding access and hours of
operation.
5. Subcontractor has examined die Drawings and Specifications listed in
Exhibit "A" and shall identify all options and costs savings available to die
Owner while providing highest quality system. Modifications made to conform to
the legal requirements and good construction practice will be included at no
additional costs.
6. All work is to be performed in accordance with die latest safety
standards as established by legal requirements, Q.S.H.A. all other applicable
regulatory bodies.
7. General Contractor may require Subcontractor to perform all work in
areas out of sequence if required if reasonable. In addition, Subcontractor may
be required to leave out portions of his work for temporary services and return
at a later date to complete die work. Comeback time will be at no additional
cost to die Owner or General Contractor.
8. Ten days after award of die Contract, this Subcontractor will submit
shopdrawing submittal schedule to die General Contractor. This Subcontractor
will then prepare complete shop drawings and present required submittals for
approval as required by die Architect at no additional cost to Owner.
Subcontractor shall submit samples of all materials for approval, as described
in die Specifications. The material used on the Project shall match the approved
samples in all situations, and shall be strict accordance with that approved.
Both shop drawing
<PAGE>
and sample submissions must be in accordance with the schedule. This
Subcontractor will only work from and use approved drawings and samples.
9. If Specification requires, Subcontractor shall provide mock-ups of his
Work, by performing such work in an area designated by the General Contractor in
advance of his normal sequence for the project. Such work will be critiqued by
General Contractor, Owner, and Architect/Engineer. Subcontractor shall then
perform his work( in accordance with those comments at no additional cost as
transmitted to Subcontractor by General Contractor.
10. This Subcontractor shall provide General Contractor with the names and
addresses of material manufacturers, suppliers and second tier subcontractors
anticipated to be used, including utilizing ~I/WBE entities. These
subcontractors shall be governed by all Terms and Conditions (including
insurance requirements) of die Contract between Subcontractor and Owner. No
subcontractors may be used, solicited or allowed to enter the job site without
prior written approval from General Contractor.
11. This Subcontractor shall attend weekly job meeting scheduled by the
General Contractor, and will properly coordinate the work with other trades and
resolve matters related to completion of work on schedule. If required, a
principal shall also attend. The work of this Subcontractor shall be performed
in a manner that does not impede or delay another Subcontractor in the
performance of his work. Subcontractor's Project Manager shall attend weekly
construction coordination meetings at the job site as scheduled.
12. This Subcontractor will be prudent in the execution of its works so as
not to damage existing construction. Protection of existing is by others while
performing his work in accordance with the Special Conditions. Any work
performed by others, previous, existing, and/or new, that is damaged by this
Subcontractor or his employees or agents shall be the responsibility of this
Subcontractor to replace at no additional cost to the Owner.
13. All deliveries of material shall be coordinated with the General
Contractor's field personnel, in accordance with the Special Conditions. The
contract price includes all off-hour deliveries, if required. Under no
circumstances shall off-hours deliveries occur without prior consent of the
General Contractor. Subcontractor shall provide flagmen for traffic control as
and when required. Subcontractor shall comply with all traffic regulations for
the City of New York and shall be responsible for any fines or violations caused
by any Subcontractor's vehicles or personnel.
14. This Subcontractor will be fully responsible for all engineering
coordination, and layout of this work. Bench marks shall be provided by the
General Contractor and Axis lines. All other survey work required for this
Subcontractor's work shall be this Subcontractor's responsibility.
<PAGE>
15. Subcontractor will be responsible for rigging and hoisting all
necessary equipment and material. Subcontractor shall have the use of elevator
for hoisting not to exceed elevator's weight limitation for material only.
Arrangements for use will be made at least 72 hours in advance with the General
Contractor's field supervisory personnel. Subcontractor shall furnish labor,
materials and equipment to erect, dismantle and transport any scaffold required
to complete his work. If Engineer or Elevator Operator is required, Contractor
includes this cost. It is the responsibility of this Subcontractor that should
this Subcontractors work necessitate a master mechanic, it will be the sole
responsibility of this Subcontractor.
16. All materials delivered shall be adequately protected from weather at
all times, and shall be received and stored at the job site in an approved area
and manner as established by the General Contractor.
17. This Subcontractor is responsible for handling and managing rubbish
generated by his trade. This subcontractor is responsible to place all rubbish
in containers provided by L~MB LMB is responsible for providing and removal of
containers; and/or a location identified by the General Contractor. This
subcontractor must keep his work place exceptionally clean on a daily basis. In
case this subcontractor does not keep the work area clean, L~ will remove and
clean the area after giving notification to this subcontractor and backcharge
this subcontractor for cost of appropriate union trades(Laborers, etc.).
18. Subcontractor shall alert the General Contractor to the areas that have
been completed, and work shall be reviewed on an area by area basis.
Subcontractor shall cooperate in determining the proper programs for protecting
and securing finished spaces.
19. If Subcontractor's shanties are permitted by Owner, they shall be of
fireproof construction and fire protected and shall be placed and relocated when
and where directed. This Subcontractor includes two (2) moves as directed by the
General Contractor. Light, power, A/C & sprinkler/fire protection for such
shanties shall be the responsibility of this Subcontractor.
20. This Subcontractor shall maintain a (Central Project Foreman) at the
job site during any time in which his employees are working on this Project.
This contractor's field supervisory staff shall speak English fluently.
21. Alcohol, drugs and weapons shall not be allowed on the job site under
any circumstances, and shall be cause for immediate expulsion. Subcontractor is
advised and understands that all areas of Grand Central Terminal are designated
~o Smoking". Subcontractor will enforce this requirement strictly.
22. The work of this Subcontractor shall commence upon execution of this
contract or notification to proceed. This Subcontractor must immediately satisfy
specific contract requirements, which will otherwise prohibit on-site
activities, delay work, and/or prevent payment. These 3 of 19
<PAGE>
requirements are:
22.1 Insurance Compliance (see Exhibit "C") in 10 calendar days
22.3 Bonding Compliance (see Exhibit "F") in 25 calendar days
22.4 Submittal, Fabrication and Installation Schedule in 10 working days
22.5 Trade Payment Breakdown Compliance in 10 calendar days MBE/WBE
Subcontracting Plan in 10 working days
23. The Subcontractor is required by O.S.H.A regulations to institute a
hazard communication program. Under said program, Subcontractor must inform both
the General Contractor and all other Subcontractors on the site of any hazardous
chemicals being used by Subcontractors' employees on this Project. The
Subcontractor shall provide General Contractor and all other Subcontractors with
copies of a Material Safety Data Sheet [\(pound)ISDS], must warn other
Subcontractors in Subcontractor's work area of the existence of any hazardous
chemicals, must insure that any containers containing hazardous chemicals are
appropriately labeled, and must maintain an inventory of any such chemicals. The
Subcontractors shall have an employee trained in safety practices on site during
all operations.
24. This project is subject to Certificate of Capital Improvement and
consequently exempt from associated taxes.
95, All formal notices to be Sent in duplicate to:
<PAGE>
Lehrer McGovern Bovis, Inc.
200 Park Avenue-9th Floor
New York, NY 10166
Lehrer McGovern Bovis, Inc.
200 Park Avenue-9th Floor
NewYork , NY 10166
<PAGE>
Attn: Brian Peters Attn: Mark Nelson
Senior Vice-President Senior Vice-President General Counsel
26. This Subcontractor shall abide by all requirements of Metro North
Railroad for Work in or adjacent to areas of the terminal. All workers are to
attend a Safety Class prior to being allowed to work in the Terminal. This
Contract shall make every effort to minimalize the impact of all construction
activity to pedestrians. Specific requirements for all work in these areas
enumerated under Special Conditions of this contract.
27. Subcontractor is advised and understands that this project requires the
wearing of hard hats at all times in work areas. Violators will incur fine of
five hundred dollars per occurrence. A subsequent violation will be reason for
immediate dismissal.
28. Subcontractor is advised that safety goggles must be worn in the areas
by all personnel whether engaged in work or observing.
<PAGE>
29. All professional engineering and design costs, performance of site
surveys, investigate analysis, etc. which may be required for the preparation
and submission of the Subcontractor's shop drawings, details, calculations,
procedures, and performance of coordination are included in the Contract.
30. Furnish and install all safety devices for welders, grinders, etc., as
required by codes and O.S.H.A. Welder's certificate submitted a minimum often
(10) business days prior to work starting.
31. Should questions of union jurisdiction arise, the Subcontractor shall
immediately take steps to settle such disputes and will use such labor as may be
determined to have jurisdiction, at no additional cost to the Owner. Should
Subcontractor fall to take expeditious actions, Subcontractor will be
responsible for any time lost as a result of delays arising from such disputes.
32. The Subcontractor shall submit to the General Contractor's office an
accurate manpower count by 8:00 A.M. of each day for manpower working within the
Terminal that day. In addition, the Subcontractor shall include a brief
description of the work that is being performed and the area the work being
performed and the manpower assigned to the task(s).
33. All cutting, chasing, chopping required for performance of this trade
shall be this Subcontractor 5 responsibility. All cutting, chasing a~ Selective
Demolition areas is to be performed by this Contractor.
34. This Subcontractor shall submit to General Contractor a Trade Payment
Breakdown within ten (10) day of award. Trade payment breakdown should
delineation of various major scope items as identified in Exhibit "B", Scope
Item No.55. Upon approval by the General Contractor, the Trade Payment Breakdown
with labor and material allocations shall be used for requisition purposes. This
will also apply to subsequent change orders.
35. The use of any mechanical equipment such as cranes, chain falls, etc.
Is acceptable provided same meets safe practice. This Subcontractor shall
provide all jurisdictional labor as required. This Subcontractor to include all
necessary engineering and drawings with a N.Y.C. licensed P.E. stamp identifying
all loading requirements to be applied to existing floors due to material
deliveries and/or use of mechanical rigging equipment, for review by the
Structural Engineer of Record.
36. This Subcontractor is responsible for power hook ups and associated
costs for his equipment and machinery. Power sources to be provided to work
areas by LMB. Provide fused disconnects as required. This also applies to all
Subcontractor's electrically driven tools or above 110 volts high power
consumption. Subcontractor shall schedule electrical hook-ups in advance.
<PAGE>
37. Penetrations are not to be made without prior notification of and
authorization to proceed from, the General Contractor. Subcontractor is to
provide shop drawings identifying location and size of penetrations which are
required to be approved prior to proceeding with the work.
38. Qualifications and exclusions contained in Subcontractor's proposal for
this work are not accented or agreed to unless specifically incorporated in this
Scope of Work.
39. Perform all tests that are required and specified by code or good
practice. This Subcontractor shall notify the General Contractor 72 hours prior
to start of such test to allow Owner's and/or General Contractor representative
time to be present. In the event that this is not accomplished, the General
Contractor reserves the right to request another test.
40. Contract amount includes all permits, licenses, certificates, U.L.
labels, guarantees, test reports, coordinating and scheduling inspections,
applications and necessary fees pursuant to specifications, codes and any
governmental agency having jurisdictions.
41. Lehrer McGovern Bovis, Inc. safety personnel will issue citations upon
non compliance with safety requirements by this Subcontractor's field personnel.
Upon issuance of every citation, S500.00 dollars will be backcharged to this
Subcontractor
42. This Subcontractor acknowledges that LEHRER McGOVERN BOVIS, INC. and
Metro-North are extremely safety conscious and will not tolerate any non
compliance with safety rules.
43. This Subcontractor will be responsible for horizontal and vertical
movement of their material and equipment. Elevator freight car available to this
Subcontractor at no charge, during normal working hours. Subcontractor must
schedule use time with General Contractor's field personnel. Arrangements must
be made at least 72 hours in advance. Any scheduled lift time which is not
utilized by missed delivery or canceled within 24 hours of delivery will be
charged to this Subcontractor ~ ~300.00Ihr. This Subcontractor understands that
they shall not be reimbursed for any loss of time due to freight car or hoist
down time and or waiting time.
44. All material and equipment not capable of being hoisted in house
elevators shall be rigged and hoisted by this Subcontractor at his own cost.
This Subcontractor includes all cost and assumes all responsibility for any
additional protection of existing finishes and loading and or support
requirements needed due to this Subcontractor's rigging loading hoisting needs.
45. Construction schedule will be issued and updated by General Contractor
on BI-weekly basis. This Subcontractor is required to provide weekly updates
covering activities relating to this trade.
46. Before starting any work, this contractor shall examine the existing
work of others, to which the new work is to be applied, and shall notify the
General Contractor in writing of all defects which would effect the quality or
performance and/or the appearance of this work to be installed. 6 of 19
<PAGE>
Proceeding with the work constitutes this Contractors acceptance of the
existing conditions as having met all requirements for proper installation. This
clause is only applicable if above mentioned existing work by others was
completed under this specific renovation project
47. This Subcontractor shall warrant all of the work for a period of two
years from issuance of Owner's Certificate of Final Completion against any
defective workmanship, equipment or materials. This Contractor will be
responsible for damages to any other work resulting from above. Acceptance will
occur on an area by area basis, although warranty of the work shall be for a
period of two years from issuance of Owners certificate official completion, or
no later than a start date of July 1998 for this warranty period to commence.
48. LNIB has the right to authorize in writing this Subcontractor to
proceed with extra work, overtime and/or premium time in the absence of a fully
executed change order or agreed upon price. If a price can not be agreed upon
within 72 hours after commencement of work, unit prices may be applicable.
49. Includes strict compliance with NIBEIWBE and other affirmative action
requirements as enumerated in Exhibit ~'G".
50. This subcontractor includes all provisions for operating his tools and
equipment's, including power, water, etc. Utilities and water must be to work
are
51. This subcontractor to furnish his superintendent and lead Foreman with
radio, keyed to LMB channel. Radio to be kept 'ON" at all times when working on
project. No work is to be performed with Out the presence of Foreman on the job
at all times.
52. Subcontractor is aware that some areas of his work may contain
asbestos/lead paint material. Upon encountering this situation, the
Subcontractor shall notify the General Contractor immediately. This area will be
inspected by Asbestos/Lead Paint Consultant. A previous survey has been
conducted wherever possible to identify A. C. M.. and leadpaint contained
materials.
SCHEDULING REQUlREMENTS
53.1 Time is of the essence and this trade contractor shall diligently and
continuously execute the work and coordinate the work with other work being
performed on the project, in accordance with project schedule and in manner not
to interfere impede, delay , obstruct and or hinder the progress or completion
of whole or any part of the project. This subcontractor to provide at 8:00 A.M.
each day to LMB's Superintendent a manpower count which will indicate number of
supervision, journeyman, apprentices, etc. whom are on the job site that day.
53.2 In (20) calendar days from award this subcontractor to submit overall
project schedule. After review and approval the same will be incorporated into
LMB Project Schedule. 7of19
<PAGE>
This contractor to utilize Microsoft Project or Primavera Scheduling
software only. This subcontractor shall participate and cooperate in the
development of the project schedule providing information for the scheduling and
sequencing of its work to meet over all scheduling requirements.
53.3 LNIB will conduct bi-weekly scheduling meetings and will issue weekly
scheduling revisions . This subcontractor to incorporate the schedule and adjust
manpower accordingly. These adjustments, should they become necessary, are to be
mutually agreed upon.
53.4 In 10 Calendar days from award of this contract, this trade contractor
to submit a 90 day schedule indicating all activities including but not limited
to submittals, shopdrawings , fabrication and installations . All long lead
items have to be identified and submitted in "Expediting Log".
53~5 This subcontractor is aware that he will not be able to follow a
continuous schedule; but when contractor starts an area we expect to complete
the work in this area therefore, this subcontractor is to be prepared to perform
certain elements in accordance with field requirements, and as directed by the
Contractor. Any comeback time required to perform work left out or done out of
sequence due to construction scheduling or to satisfy other construction
requirements, is included at no additional expense to the Owner or Contractor.
Multiple visits may be required due to job conditions.
53.6 Should the progress of work or the project schedule be delayed as
result of this subcontractor's neglect or act or failure to act as to cause any
additional cost, expenses, liability or damage to LNIB or the Owner, this
subcontractor does agree to compensate LNIB and the owner for and indemnify them
against all such costs ,expenses, damages and liabilities.
53.7 This Subcontractor or work will occur during the Second Quarter of
1996, and all work must be completed by the middle of the Second Quarter of
1997. Specific areas will be mutually agreed upon.
<PAGE>
b. Balance of the work on this drawing T.B.D.
S-211 a. Steel for Grand Stair February 1997
b. Steel for East Escalator - ~y Others)
c. 5E4 framing A.S.A.P.
d. Column W14 X 257 ~y Others)
5-2111 Columns for East Escalator
S-214 Steel for 416 Lexington Avenue A. S.A.R
S-216 a. Steel for Grand Stair February 1997
b. Steel for East Escaia~or ~y Others)
c. W14 X 257 (13y Others)
S-217 a. Steel for IRT ramp access to
Main Concourse A.S.A.P.
b. 42nd Street ramp & EOB ramp October 1996
S-218 a. EOB ramp October 1996
b. PE-3 elevator & stair in ticket office T.B.D.
c. Balance of the work on tius drawing T.B.D.
S-220 Steel for Campbell Apartment stair T.B.D.
S-221 Steel for Federal Express & East Shuttle T.B.D.
S-222 West Escalator Steel ~y Others)
S-224 42nd Street Retail Area T.B.D.
S-225 a. Steel for service elevators (SE-i and SE-2) A.S.A.P.
b. Steel for compactor room A.S.A.P.
S-225.l Steel for ser'~ce elevators posts & columns A.S.A.P.
S-226 Steel for grand stair February 1997
54. The specific scope of this Subcontractor shall include but not limited
to the following:
a) Drawings and Specifications titled as Grand Central Tenninal Retail
Development Plans and Specifications as indicated in Exhibit "A" of this
contract.
b) All Structural Steel fetal Deck and Selective Demolition etc. as it
relates to the following areas:
Lower Concourse Level: Part Framing Plan Elevation, Mezzanine Level, West
Side Part Plan, East half Part Framing Plan, Oyster Bar Part Framing Plan,
Grillage Part Plan.
Main Concourse Level: Part Framing Plan Elevation: 44'-3", Vanderbilt entry
at 42nd Street Part Framing Plan, Part Plan at elevation 68'-0", Shuttle Passage
at elevation +44.25', Vanderbilt entry elevation +56.00', Campbell stair
platform Ticket Booths, Waiting Area and Tenant Storage, East Side Part Framing
Plan, 42nd Street Passage Part Framing Plan at the lower landing 36'- 75,.
<PAGE>
Part Framing Plan at Depew Place level, existing platform at elevation 37',
76, intermediate levels, Training Shed level Lower Platform level
New Cable Gallery Support Framing Plan Alternate 2, Grillage Part Plan.
55. The Scope of Work shall include everything required to fabricate,
deliver and erect all Structural Steel in accordance with this Scope and the
Drawings and Specifications. The Drawings and Specifications are to be treated
by the Subcontractor as construction documents which indicate the general scope
of the project in terms of the architectural design concept, the overall
dimensions, the type of stauctural, mechanical, electrical, utility, and other
systems, and an outline of the major architectural elements.
The following items are not intended to exclude any other items of work
required by the Architect{Engineer, or that may be required by local code or
good construction practice.
56. Scheduling and determining site access will be required to be
coordinated with Lehrer McGovern Bovis in advance of any site activity. It is
essential that this Subcontractor review the Special Conditions, specifically
subheading "Material Personnel Access", items ~ 5, 6, 7, 8,and9.
57. Prior to making deliveries to the site, this Subcontractor will confirm
with Lehrer McGovern Bovis, the shape, weight, length and configuration of
members or a preferred group or members so as to best determine the safest, most
efficient and least disruptive method. Access to be provided by L.M. B.,
although all safety measures (i.e. flagmen, caution tape) to be the
responsibility of this Trade Contractor.
58. This Subcontractor is aware that Lehrer McGovern Bovis has loading
requirements as listed in the following areas with specific elevator restriction
at each individual location listed as follows:
a) Primary loading at 43rd Street loading dock, concourse level. Access to
Terminal before 7:00 AM and after 9:30 PM, or schedule forty-eight (48) hours in
advance for minimum one (1) hour loading time between 7:30 A.M. to 3:30 P.M.
b) Graybar Passage.
c) Lexington Avenue Passage.
d) Graybar Building at 44th Street behind the Post Office Building and
Met-Life Building, an existing loading dock is available for delivery during
normal working hours.
<PAGE>
e) This Subcontractor includes any and all protection of this
Subcontractors work. All standbys associated with this trade work is included.
Standby for deliveries only are excluded. All costs for off-hour deliveries are
included by this Subcontractor.
59 This Subcontractor includes all welding machines with all associated
stand-by, union labor necessary to complete all work. In accordance with
mutually agreed Lehrer McGovern Bovis' Scheduling Requirements.
60. Scheduling Milestones: This subcontractor includes a good faith effort
to meet the general contractors work area milestone dates listed as follows:
Date: Description Dwg. A.S.A.P. 42nd Stre2t Passage Phase I, IA S217 A.S.A.R
Compactor (Part Depew PL) S225 A.S.A.R Service Elevator SEl and 5E2 5225 A.
S.A.R Monumental Stairs S211, S216 & S226 A.S.A.R 42nd St. Passage Phase II S218
1-15-97 Passenger Elevator PE2 5214 2-1-97 Balance Dwgs S214 & S215
61. The Trade Contractor's insurance carrier is to be approved by the
General Contractor. Insurance certificates along with any other required
documentation properly stated as described in Exhibit "C" must be on file with
the General Contractor prior to commencement of work. No work is to be performed
and no payments shall be made until the above requirements have been properly
satisfied and are on file in the office of the General Contractor.
62. Subcontractor has examined the Drawings and Specifications listed in
Exhibit "A" and shall identify all options and cost savings available to the
Owner while providing highest quality systems. Modifications made to conform to
code and good practice will be included at no additional cost. (Cost savings
must be identified separatelv).
63. All work shall be in accordance with the requirements (;f the
N.Y.S.B.C. Structural Engineer, Architect, MTA and Metro North Railroad and any
governmental agencies having jurisdiction.
64. This work will be performed in complete compliance with OSHA
regulations and those of all other agencies having jurisdiction on this Project
and shall conform with the fire rating requirements of the ASTN, the Architect
and local codes.
65. All work operations shall be coordinated through the General Contractor
prior to proceeding.
<PAGE>
EXH~IT "B" TO CONTR~~CT, DATED NIAY 15,1996, BETWEEN LEIRRER McGOVERN
BOVIS, INC. & US BRIDGE OF NEW YORK
Trade: Structural Steel/Metal Deck/Selective Demolition Grand Central
Terminal I Retail L~ Project ~2458.O3
66. Furnish and install all Coordination to be by this Subcontractor
inclusive of delivery schedule. Include for reinforcing of metal deck at all
penetrations (i.e. PIVAC, plumbing, etc.) as shown on the structural drawings.
Additional openings will be as per unit price schedule. Include for reinforcing
of concrete pour stops as required. Coordination of details at moment connection
and other special conditions shall be shown on shop drawings.
67. Paint all structural members as per specifications, required by
Contract Documents.
68. Furnish and install all metal decking and supports as required. Provide
all slab penetrations as shown on drawings.
69. Furnish and install three (3) lines of perimeter safety cables 42"
above finish floor with turn buckles at each column with removable snap clip
links, at all columns, at all floors and interior openings in accordance with
OSHA requirements and per requirements of all other governmental agencies having
jurisdiction. \Where no columns exists such as at setbacks and roofs, the
Subcontractor will provide supports for the cables, maintenance of cables and
netting is by this Subcontractor. Prior to demobilizing this Subcontractor will
walk the site with L~ and the carpenter to inspect all perimeter safety cables
and supports to ensure an acceptable installation is in place, and only than
will the carpenter accept the installations without qualification.
70. Furnish and install shear connectors, as shown on contract drawings.
71. This Subcontractor includes all erection of structural steel and metal
deck out of sequence at the east ramp specifically headed from in an eastern
direction between column no's 100 to 108 and 62 to 72 as shown on the drawings.
72. Examine all steel prior to shipment to the job site to insure that the
steel be free of loose mill scale, rust, etc. and provide properly marked steel.
This Subcontractor shall also remove any loose mill scale from steel prior to
erection.
73. Check anchor bolts, piers with New York City licensed surveyor - to be
supplied to Lehrer McGovern Bovis, and foundation work prior to the commencement
of structural steel. This Subcontractor is responsible for furnishing anchor
bolts, templates, and drawings as specified and required. Subcontractor to set
column base plates. (Grouting of base and leveling plate by others.) This
Subcontractor shall include the realignment of anchor bolts found to be 1/4" out
of tolerance.
74. All welding to conform with Metro North Rules and Regulations, both in
the shop and in the field shall be done by certified welders, and the
appropriate certification must conform to Metro North Railroad Rules and
Regulation be available upon request.
<PAGE>
75. The Subcontractor includes tolerances and cambers in accordance with
AlSC and the Contract Documents listed in Exhibit "A". Special care is to be
taken at elevator shafts.
76. Include all guying and bracing required to maintain the plumbness of
the work arid the proper positioning of the members until the members are fully
locked in their final position.
77. Include perimeter protection at all interior openings as customary to
this Subcontractors trade work and in accordance with all OSHA regulations and
Scope Item #69 of this Scope of Work.
78. Include all spandrel reinforcing and special connections as required,
and as shown on the structural drawings.
79. This Subcontractor includes all work requlred at expansion joint
including all plates, beams, frictionless coatings, pour stops, etc. required
for a complete installation as shown on the drawings.
80. This Subcontractor includes all moment connections as shown on the
Contract drawings.
81. This Subcontractor includes all special support steel arid bracing
required for this contractor to perform his work as indicated on the Structural
Drawings.
82. Included is all architectural exposed structural steel, turn buckles,
etc., shown on drawings and identified in the scope of work
83. This Subcontractor includes all special work required at loading docks,
ramps and drive-thrus including, but not limited to, requirements for special
slab thickness, changes in slab thickness, additional support members, depressed
slab conditions, and any other work shown on Structural Documents.
84. It is agreed by this Subcontractor that web shear plates and stiffeners
for columns, beams or girders that are required by the specifications or sound
engineering, even though not specifically shown on the Contract Drawings, shall
be furnished and installed by the Subcontractor as part of this Contract.
85. All of the Subcontractor's work, both shop and field, shall be tested
and inspected by a testing agency in accordance with the specifications. Such
compensation for the testing agency shall be borne by the Owner and coordinated
by the General Contractor.
The Subcontractor shall cooperate fully with the personnel of such testing
agency and the Subcontractor shall provide at no additional cost to the Owner,
manpower, blueprints, facilities, scaffolds, properly calibrated torque
wrenches, etc. to reasonably assist the testing agency personnel in their
execution of their testing arid inspection of welding, high strength bolts, etc.
It shall be the responsibility of this Subcontractor to notify the testing
agency prior to
<PAGE>
commencement of the Subcontractor's work for both shop fabrication and
field erection. The Subcontractor shall not perform any work unless such testing
agency personnel are present. It shall be the responsibility of this
Subcontractor to notify the testing agency in sufficient time to allow for
travel arrangements prior to commencement of the Subcontractor's work. Costs
incurred for inspections for rejected materials or unapproved installations will
be by this Subcontractor.
86. For purposes of complying with the requirements of the Building Code of
the City of New York, which calls for a Certification of On-Site Inspection, the
Subcontractor will furnish to the General Contractor all information of
positions of cranes, derricks, guy lines, derrick engines, etc. along with
pertinent loads for the operating of such equipment certified as to accuracy and
location by a Professional Engineer, licensed to practice in the State of New
York, engaged by this Subcontractor.
87. Any modification or bracing, shoring, posting for rigging equipment to
the structure must be submitted to, and approved by the Structural Engineer arid
the General Contractor. The Structural Engineer employed by this Subcontractor
shall provide any calculations or drawings required by local codes or ordinances
covering the analysis of any loads imposed to the permanent structure, and shall
if required, affix a licensed professional engineer's seal to same.
a) Drawings showing rigging equipment, locations, and all connections and
additional steel that will be added to the structure if required to support the
rigging equipment.
b) Calculations for all loading conditions for rigging equipment.
Calculations must take into account varying conditions within the structure,
lighter steel at top of building, etc.
88. This Subcontractor is aware of the structural capacities of areas to be
used for the Subcontractor's equipment and material storage and shall not exceed
rated capacities without taking appropriate steps to compensate for the position
of the construction loads which may exceed the design criteria. Any
modification, temporary or permanent, to the building's structural frame
required to support the Subcontractor's equipment arid its loads will be made by
the Subcontractor at his own cost. Calculations for modification must be
submitted and approved.
89. The Subcontractor shall furnish, place, arid remove any temporary
bracing required to stabilize the structural steel frame due solely to erection
by Subcontractor of the structural steel. Arty modification to the structure
must be submitted and approved by the structural engineer and reviewed by the
General Contractor.
90. Subcontractor shall coordinate his work with that of other trades, as
closely as possible, inclusive of power requirements for welding. Weekly
coordination meetings with any other
<PAGE>
trades affected by this Subcontractor's work may be called by the General
Contractor for this purpose.
91. The Subcontractor will not have his name on steel members or display
any other advertising materials without the express written consent of the
General Contractor.
92. Subcontractor's detailer and erector selection shall be subject to
General Contractor's approval if they are to be subcontracted.
93. This Subcontractor shall provide sufficient equipment and manpower to
properly perform the structural steel and metal deck work in the time allotted.
94. Subcontractor shall provide at all times a safe pedestrian thrufare
while performing work. Temporary partitions to be installed by the General
Contractor at work areas.
95. The Subcontractor shall provide a survey for verification of in place
steel.
96. If any steel members or steel decks are required to be erected out of
sequence, or to be omitted to temporary holes, shafts, hoists, etc., as required
for the sequencing of construction by other trades, this work shall be as
directed by the General Contractor and shall be included.
97. This Subcontractor shall provide whatever safety planking is necessary
to protect all openings in accordance with the regulations of all governmental
agencies having jurisdiction as customary and for the use of this Subcontractor.
98. This Subcontractor will install deck reinforcing outside perimeter
columns necessary to properly support deck. This Subcontractor shall install
straps or angles on perimeter of existing pour stops as required to properly
support pour stops. This Subcontractor shall properly close declining around all
interior columns. This Subcontractor shall include a survey and control lines on
each floor and install edge stops and lintels. To include a post erection as
built survey of erected steel at the new 416 Lexington construction and
verification of elevations at all other work areas.
99. The Subcontractor shall include column flashing plates at areas where
the metal deck is discontinuous at the columns.
1 OQ. The Subcontractor is required by OSHA regulations to institute a
hazard communication program. Under said program, Subcontractor must inform both
the General Contractor and all other trade Subcontractor's on the site of any
hazardous chemicals being used by trade subcontractor's employees on this
project. The Subcontractor shall provide the General Contractor and all other
trade Subcontractor's with copies of a Material Safety Data Sheet ~SDS), must
warn other trade Subcontractor's working the area of the existence of any
<PAGE>
hazardouschemicals, must insure that any container's containing hazardous
chemicals are appropriately labeled, and must maintain as inventory of any such
chemicals.
101. The Subcontractor shall provide all anchor bolts and base plates with
approved location drawings in adequate time for setting in place by excavation
and foundation Subcontractor. All other embedded steel in concrete below grade
is excluded from this contract.
102. Immediately upon award, Subcontractor shall provide site logistics
information, including proposed erecting equipment locations and any required
designed bracing requirements to the General Contractor without causing delay.
Any design modifications required to the foundation including additional bracing
or reinforcing shall be the responsibility of this Subcontractor.
103. Special attention shall be given in expediting all mill orders.
104. Defective welds, bolts or other materials not approved by Engineer or
inspector shall be repaired or replaced at no additional cost.
105. Subcontractor shall provide the following schedule information for the
review of the General Contractor. This information shall be provided with the
Subcontractor's Bid Proposal on the bid due date:
a) Prepare and submit proposed logistics plan per work area location when
area is turned over to U.S. Bridge of NY
b) Mobilization 2 wks after award -
c) Prepare and submit any required bracing and additional reinforcing
requirements for erection work per work area when area is turned to U.S. Bridge
of NY..
d) Prepare and submit anchor bolt/leveling plate beam bearing plates and
cast in location drawings, delivery schedule and shop drawings to be provided to
L.M.B. once work areas are turned over to U.S. Bridge of NY.
e) Prepare and submit structural steel shop drawings per work areas
location when areas are turned over to U.S. Bridge of NY..
<PAGE>
f)Bar chart schedule of construction activities and all
engineering/approval and fabrication for lead time requirements after work areas
are turned over to U.S. Bridge of NY.
106. This Subcontractor is required to prepare and submit to Lehrer
McGovern Bovis a Protection Plan", - Hazard Communication" and Safety Plan in
accordance with OSHA Requirements for this project, which will be reviewed by
Lehrer McGovern Bovis, and Corporate Safety.
107. Subcontractor includes all shoring, bracing and posting required to
ensure stability and integrity for all items as it relates to "Selective
Demolition". After the demolition subcontractor removes any designated slab
area, this subcontractor will cut and drop any necessary structural steel with
removal of this steel by the Demolition subcontractor. This subcontractor
includes all welding, bolting, burning and chopping as allowed by Metro North,
layout, survey work, scaffolding, equipment and all standby's associated with
the work.
108. This subcontractor excludes shoring of metal deck during the concrete
pour operation.
109. This subcontractor includes all standby's associated with equipment
utilized to install structural steel. i.e. cranes, derricks, cherry pickers,
et.al. All overtime associated with 416 Lexington staging of crane, cherry
picker, derrick et.al. is included. In addition, the demobilization of all
equipment with associated standby's is included for this Trade Subcontractors
work
110. This subcontractor includes firewatch in accordance with bid
documents.
Ill. Power is available for this subcontractors work in all work areas for
equipment requirements above 110 volts.
112. This subcontractor includes pre-heat of structural steel as a ~25.000
allowance.
113. This subcontractor includes reinforcing Column No's. 34, 39, 44, 50,
58 and 74 in accordance with sketches - SK-S-l00 thru SK-S-103 dated 4/25/96 and
Contract Drawing S-211 Detail
114. This subcontractor includes additional 8'-0" L.F. of welding for
angles (Total of ~ locations) in accordance with sketch SK-S- 104 - dated
4/25/96 associated with Detail - "Q" on Drawing S-201.
115. This subcontractor includes all "On-Hold" areas as an allowance which
have sized members identified on the contract drawings.
<PAGE>
116. This subcontractor includes CAD As-Built drawings to be provided on
mylars at the completion of this subcontractors installation of work.
117. This subcontractor includes the cable gallery as shown on the contract
drawings S-225.l.
118. This subcontractor includes all work associated with Detail No.48 on
Drawing No. S-405.
119. This subcontractor includes phasing of 42nd Street Passage in three
phases, per L.M.B. Color Phasing Plan Titled: "Hot & Crusty/42nd Street Passage
Work" and Phasing Requirements identified on the contract drawings.
120. This subcontractor includes all costs associated with power Hook-Up
for disconnects above 110 volts.
121. This subcontractor includes two (2) story shoring at the East
Escalator and S-220 may require two (2) story shores. This work identifies Note:
~A" and "B" in the diamond symbol on Drawing 5-1 08. Included are all shoring
requirements as stated on Drawing No. 5-201.
122. This Subcontractor shall include all engineering, layout and surveying
as required to perform the work. One (1) north-south axis line, one (1)
east-west axis line, and one (1) benchmark at each location demolition is
required. ~'1iere the work to be performed occurs within existing areas of Grand
Central Terminal, the General Contractor shall have the option of providing the
Subcontractor with either baseline(s) and a benchmark or designating a given
starting point from existing work or this Subcontractor can retain the drywall
Subcontractor for layout at your own cost.
123. This Subcontractor will chop, burn, and sawcut all work after the
layout has been performed by the structural steel Subcontractor for the
"Selective" Demolition phase of demolition, removal, and carting is included by
this Subcontractor.
124. This Subcontractor includes furnishing all labor and material
necessary to perform "Selective Demolition" as shown on the Drawings and
Specifications. Included is all shoring, bracing and posting as shown and
specified. All engineering requirements as related to the "Selective Demolition"
work, and engineer, for shoring, bracing and posting is included to ensure
stability and integrity is maintained. This Sub-Contractor includes all welding,
bolting, burning and chopping as allowed by Metro North, layout, survey work,
scaffolding, equipment and all standby's associated with the work. All debris
will be placed in containers, provided and removed by others.
125. This Subcontractor includes coping and modifying existing structural
steel as shown on Contract Drawing SA.
126. This Subcontract excludes prime painting of all structural steel to
comply with spray fireproofing requirements.
<PAGE>
EXHIBIT C
GRAND CENTRAL TERMINAL
REVITALIZATIO N
LMB PROJECT #2458
INSURANCE REQUIREMENTS
In this Exhibit C, the phrase "General Contractor" refers to the General
Contractor named on page 1 of the Sub Contract.
Sub Contractor shall provide insurance as follows:
1. Workers Compensation and Employers Liability
(a) Statutory Workers Compensation (including occupational disease)
in accordance with the law and including the Other States
Endorsement.
(b) Employers Liability Insurance with a limit of at least $5003CC0.
(c) Waiver of Subrogation.
2. Commercial General Liability ("CGL") with a combined single limit for
Bodily Injury, Personal Injury and Property Damage of at least
$5,CCO,OCO per occurrence and aggregate. The general aggregate limit
shall apply on a per project basis. The limit may be provided through a
combination of primary and umbrella/excess liability policies.
Coverage shall provide and encompass at least the following:
a. X, C and U hazards, where applicable;
b. Independent Contractors;
C. Blanket Written Contractual Liability covering all Indemnity Agreements,
including General Conditions, Article 11 "Indemnification";
d. Products Liability and Completed Operations, with the provision that
coverage shall extend for a period of at 36 (thirty-six) months from Project
completion;
e. CGL coverage written on an occurrence form;
f. Endorsement naming GCT VENTURE, INC., METRO-NORTH, METROPOLITAN TRANSPOR
TA TJON AUTHORITY, ARCHITECT, AMERICAN PREMIER UNDER WRITERS, INC., THE NEW YORK
AND HARLEM RAILROAD COMPANY., THE OWASCO RIVER RAIL WA Y INC., N.Y.C. TRANSIT
AUTHORITY, CONNECTICUT DEPARTMENT OF TRANSPORTATION AND THEIR AFFIUA TES AND
SUBSIDIARIES AND THE EMPLOYEES, AGENTS, PARTNERS AND OFFICERS OF EACH,
METROPOLITAN UFE INSURANCE COMPANY, Lehrer McGovern Bovis, Inc. and Lehrer
McGovern Bovis, Inc.'s parent and affiliates (to the extent applicable) as
Additional insureds;
g. Waiver of Subrogation; and
h. Policy to be primary as respects the coverage afforded the Additional
Insureds.
l of 5
<PAGE>
commerciaI Automobile Liability (including all owned, leased, hired and
non-owned automobiles) with a combined single limit for Bodily Injury
and Property Damage of at least $1,000,000 per occurrence. The limit
may be provided through a combination of primary and umbrella/excess
liability policies.
4. Umbrella and/or excess liability policies may be used to comply with
CGL, Auto Liability and Employers Liability limits shown above.
5. Asbestos Testing/Asbestos Abatement coverage (for contracts involving
the Testing/Abatement of Asbestos) in the amount of $5,COC,OCO. Such
coverage will include as Additional Insureds those entities listed in 2f
of this Exhibit C.
6. Lead paint abatement coverage (where applicable) in the amount of
$5,000,000. Such coverage include as Additional Insureds those entities
listed in 2f of this Exhibit C.
7. Contractors pollution legal liability insurance in the amount of
~5,000,000. Such coverage will include as Additional Insureds those
entities listed in ~ of this Exhibit C.
8. A Certificate of Insurance indicating the Project must be submitted,
approved, and available to Lehrer McGovern Bovis, Inc. prior to
commencement of work1 and provide for 30 days written notice prior to
cancellation, non-renewal or material modification in any policy to:
RISK MANAGEMENT DEPARTMENT
LEHRER McGOVERN BOVIS, INC.
200 PARK AVENUE, 9TH FLOOR
NEW YORK, NEW YORK 10166
ATTN: AU MOHAMEDI
A "model" Certificate of Insurance 5 attached. A Certificate of
Insurance, when submitted to the Contractor, constitutes a warranty by
Sub Contractor that:
A. Blanket Contractual Liability under the Commercial General
Liability Policy has been endorsed to cover the Indemnitees
specified in Paragraph 11 of the General Conditions to the Sub
Contract between the Sub Contractor and the General/Contractor.
B. The Commercial General Liability Policy names as Additional
Insureds GCT VENTURE, INC METRO-NORTH, METROPOLITAN TRANSPORTA
TIONA UTHORITY, ARCHITECT, AMERICAN PREMIER UNDERWRITERS, INC.,
THE NEW YORK AND HARLEM RAILROA COMPANY, THE OWASCO RIVER
RAILWAY, INC., N.Y.C. TRANSITAUTHORITY, CONNECTICUT DEPARTMENT
OF TRANSPORTATION AND THEIR AFFIUATES AND SUBSIDIARIES AND THE
EMPLOYEES, AGENTS, PARTNERS AND OFFICERS OFEAC~ METROPOLITAN UFE
INSURANCE COMPANY Lehrer McGovern Bovis, Inc. and Lehrer
McGovern Bovis, Inc.'s parent and affiliates (to the extent
applicable).
2of5
<PAGE>
C. With respect to the Excess Liability Insurance, the following policies
are scheduled as primary:
Commercial General
Automobile Liability
Employers Liability
D. The insurance policies for all Sub Contractor's insurance shall include
a waiver of subrogation as follows:
"It is agreed that in no event shall these insurance companies
have any right of recovery against GCT VENTURE1 INC.,
METRO-NORTH, METROPOLITAN TRANSPORTATION AUTHORITY, ARCHITECT,
AMERICAN PREMIER UNDERWRITERS, INC., THE NEW YORK AND HARLEM
RAILROAD COMPANY, THE OWASCO RIVER RAILWAY, INC., N.Y.C.
TRANSITAUTHORITY, CONNECTICUT DEPARTMENT OF TRANSPORTATION AND
THEIR AFFILIATES AND SUBSIDIARIES AND THE EMPLOYEES, AGENTS,
PARTNERS AND OFFICERS OF EACH, METROPOLITAN LIFE INSURANCE
COMPANY, or Lehrer
McGovern Bovis, Inc."
E. The insurance policies shown are endorsed to be primary as respects any
other insurance available to any Additional Insured.
9. All insurance carriers must: (i) be licensed in the State where the
Project is located; and (ii) be rated at least A in Best's.
10. The Sub Contractor shall secure, pay for, and maintain Property
Insurance necessary for protection against loss of owned, borrowed, or rented
capital equipment and tools, including any tools owned by employees, and any
tools, equipment, staging, towers, and forms owned, borrowed or rented by the
Sub Contractor. The requirement to secure and maintain such insurance is solely
for the benefit of the Sub Contractor. Failure of the Sub Contractor to secure
such insurance or to maintain adequate levels of coverage shall not obligate GCT
VENTURE, INC., METRO-NORTH, METROPOLITAN TRANSPOR TA TION AUTHORITY, ARCHITECT,
AMERICAN PREMIER UNDERWRITERS, INC., THE NEW YORK AND HARLEM RAILROAD COMPANY,
THE OWASCO RIVER RAILWAY, INC., N.Y.C. TRANSlT AUTHORITY, CONNECTICUT DEPARTMENT
OF TRANSPORTATION AND THEIR AFFILIATES AND SUBSIDIARIES AND THE EMPLOYEES,
AGENTS, PARTNERS AND OFFICERS OF EACH, METROPOLITAN LIFE INSURANCE COMPANY,
Lehrer McGovern Bovis, Inc. or their agents and employees for any losses, and
GCT VENTURE, INC., METRO-NORTH, METROPOLITAN TRANSPORTATION AUTHORITY,
ARCHITECT, AMERICAN PREMIER UNDERWRITERS, INC., THE NEW YORK AND HARLEM RAILROAD
COMPANY, THE OWASCO RIVER RAILWAY, INC.7 N.Y.C. TRANSIT AUTHORITY, CONNECTICUT
DEPARTMENT OF TRANSPORTATION AND THEIR AFFILIATES AND SUBSIDIARIES AND THE
EMPLOYEES, AGENTS, PARTNERS AND OFFICERS OF EACH, METROPOLITAN LIFE INSURANCE
COMPANY, Lehrer McGovern Bovis, Inc. and their agents and employees shall have
no such liability. The property insurance shall include a Waiver of Subrogation
in favor of all parties required to be named as additional insureds under the
Contract
11. Should the Sub Contractor engage a sub-subcontractor, the same
conditions applicable to the Sub Contractor under these Insurance Requirements
shall apply to each sub-subcontractor.
3 of 5
<PAGE>
[graphic omitted]
<PAGE>
Exhibit 91D" - Unit Prices to Contract dated May 15, 1996 between Lehrer
McGovern Bovis, Inc. & U.S. Bridge of New York, Inc.
Trade: Structural Steel I Metal Deck I Selective Demolition Grand Central
Terminal I Retail LMB Project #2458.03
The following Unit Prices shall be used when required by the Lehrer McGovern
Bovis, Inc. for all additions and/or deletions to the contract quantities and
shall be inclusive of furnishing and installing all material, labor, insurance,
overhead, profit, equipment, hoisting, scaffolding, appliances, permits,
applicable taxes, delivery and supervision, and shall remain in effect for the
entire duration of the project. Items covered by these unit prices shall be
furnished and installed in accordance with the final specifications and drawings
and in quantities and locations as directed by Lehrer McGovern Bovis, Inc.
1 On a per penetration basis, reinforcing of metal deck opening, before
concrete in place.
a.Opening between flutes $450/opening
b. Opening through one flute $450/opening
<PAGE>
c. Opening through two or more flutes $1,100/opening
2 To furnish and install additional steel, and re-drafting, as follows,
rolled at mill.
a.For a change in weight only prior to fabrication. $3,500/opening
b. For pieces added or deleted weighing
over 200 lbs. per piece and under
500 lbs. per piece. Add.- 10,000 7500/ton delete
c.For pieces added or deleted weighing over
Add.-l0,000 7500/ton delete
d. For pieces added or deleted weighing under
200 lbs. per piece. Add.-l0,000 7500/ton delete
<PAGE>
Exhibit 11D" - Unit Prices to Contract dated May 15, 1996 between Lehrer
McGovern Bovis, Inc. & U.S. Bridge of New York, Inc.
Trade: Structural Steel I Metal Deck I Selective Demolition Grand Central
Terminal I Retail LNIB Project #2458.03
3 To provide additional steel penetrations over and above those sho~~n
$___lea. on Contract Documents.
<PAGE>
In Shop In Field
6" diameter (m~':.) $ 240Ie~ $ 600/ea.
12" diameter (m~x.) $ 275 Ie~ $850/ea
12" X 6" (m~x.) $ 450Ie~ $llOO/ea
24" X 12" (m~':.) $ 525 lea. $1800/ea
20" X 24" (mix.) $ 750Ie~ $2250/ea
40" X 14" (max.) $ l2SOIea. $4500/ea
50" X 14" (mix.) $ 2250Ie~ $78001ea
4 To furnish and install additional grip stays. $3.00/ea.
5 Furnish and install additional shear connector studs. $450.00/ea
6 Furnish, deliver and unload at job site for installation by others.
a. Anchor bolts. $25.00/ea
b. Column leveling plate. $15.00/ea
7 Drafting rates. $75.00/hr.
8 Shop rates $75/hr.
9 Furnish and install additional hung lintels.
10 Three (3) cable safety railings, furnish, delivered, installed, removed
including all accessories and supports.
<PAGE>
Exhibit "D" - Unit Prices to Contract dated May 15, 1996 between Lehrer
McGovern Bovis, Inc. & U.S. Bridge of New York, Inc.
Trade: Structural Steel I Metal Deck I Selective Demolition Grand Central
Terminal I Retail LNIB Project #2458.03
11 Provide all labor and material necessary to patch opening in metal deck
on a comeback basis. $1,600/ea
12 Furnish all labor and material necessary to touch-up structural steel
with specified factory French $500.00/s.f.
13 Crane picks on straight time $1,500/ea
14 Crane picks on overtime $2,500/ea
<PAGE>
Hourly Labor Rate Breakdown to Contract dated May 15,1996 between Lehrer
McGovern Bovis, Inc. & U~S. Bridge of New York
Grand Central Terminal Restoration I Retail Trade: Structural Steel I Metal
Deck I Selective Demolition
HOURLY LABOR RATE BREAKDOWN GCTV-RETAIL PROJECT NO.2458.03
To
SUBCONTRACTOR:
ADDRESS:
TELEPHONE NO.
TRADE CLASSIFICATION:
LOCAL UNION #:
EFFECTIVE DATE: From
Straight Time Over Time Premium Time
BASE RATE
OVERHEAD
PROFIT
FEDERAL UNEMPLOYMENT TAX
STATE UNEMPLOYMENT TAX
WELFARE FUND
PENSION FUND
VACATION FUND
ANNUNITY FUND
PAlD HOLIDAY
WORKMEN'S COMPENSATION
PUBLIC LIIABILITY (BODILY INJURY)
PROPERTY DAMAGE INSURANCE
OTHER
TOTAL CHARGE PER HOUR
Note. This rate sheet to be completed in conformity with the contract
documents and as prerequisite for extra work billings
<PAGE>
Exhibit "E" - Alternates to Contract dated May 15, 1996 between Lehrer
McGovern Bovis, Inc. & U.S Bridge of New York, Inc.
Grand Central Terminal I Retail LMB Project #2458.03 Alternates Trade:
Structural Steel I Metal Deck
The General Contractor may elect, by written authorization, to accept the
following additional items of work, in which case the following alternate prices
shall apply. These prices shall not increase by any change in material prices,
wage rates, or any other escalatory factors, for the duration of this project.
Alternate prices are "All Inclusive", including labor, material, supervision,
tools, equipment, insurance, fringe benefits, overhead, profit, applicable
taxes, engineering, layout, fabrication, freight, delivery, hoisting, storage,
coordination and Payment I Performance Bond premium and all other things
necessary for a complete job.
Alternate No.1
Delete Pollution Liability Insurance Requirements as outlined in the
Insurance Exhibit "C" - Item 7.
Deduct S 25.000 Lump Sum
Alternate No.2
Provide all costs associated with premium for added MBEIWBE percent.
Add S -0- Lump Sum
<PAGE>
EXHIBIT F
Any bid not
accompanied by an acceptable Bid Bond may be rejected.
LEHRER MCGOVERN BOVIS, INC.
GRAND CENTRAL TERMINAL
LMB PROJECT #2458.03
BID BOND REQUIREMENTS
ALL BONDS ARE TO BE PREPARED IN DUPLICATE
All BIDDERS SHALL PROVIDE THE FOLLOWING:
Bid Bond for Ten Percent (10%) of the amount Bid, submitted
on the attached Bid Bond form. ALL SlGNATURES AND SEALS MUST
BE IN PLACE.
BID BONDS MUST BE ACCOMPANIED BY THE FOLLOWING:
Valid Power of Attorney with sufficient limits for the full
Contract Amount Corporate and Surety Acknowledgment
completed and notarized. Current Financial Statement of the
issuing Surety Company.
IMPORTANT
In lieu of this format, an AlA Document A310 Bid Bond may be used. Bid Bonds
will be obtained from Surety Companies with a Best's Rating of "A" (Excellent)
or better. In addition, the Surety shall have a Best's Financial Size Category
equivalent to at least Class ~ However, if the Proposed bid exceeds $1,000,000,
then a higher financial size category will be required.
Bid Bonds must be provided in a separate envelope marked as follows:
Bid Bond for (Contractors Name) provided in conjunction with bid for LMB
Project ~2458.O~.
<PAGE>
BID BOND
KNOW ALL MEN BY THESE PRESENTS:
That as Principal and as Surety, are
held firmly bound unto LEHRER MCGOVERN BOVIS, INC. AND G.C.T. VENTURE, INC.
as obligees in the sum of TEN PERCENT OF THE AMOUNT BID US DOLLARS (10% of the
amount Bid) for the payment of which sum, well and truly to be made, the
Principal and Surety bind themselves, their heirs, executors, administrators,
successors and assigns, jointly and severally firmly by these presents.
WHEREAS, the Principal has submitted a bid for:
RESTORATION OF GRAND CENTRAL TERMINAL LMB PROJECT #2458.03
NOW THEREFORE, if the Obligees shall accept the bid of the Principal and the
Principal shall enter into a Contract with the Obligees in accordance with the
terms of such bid, and give such bond or bonds as may be specified in the
bidding or Contract Documents with good and sufficient surety for the faithful
performance of such Contract and for the prompt payment of labor and material
furnished in the prosecution thereof, or in the event of the failure of the
Principal to enter such Contract and give such bond or bonds, if the Principal
shall pay to the Obligees the difference not to exceed the penalty hereof
between the amount specified in said bid and such larger amount for which the
Obligees may in good faith contract with another party to perform the Work
covered by said bid, then this obligation shall be null and void, otherwise to
remain in full force and effect.
Signed, sealed and dated
(Principal)
(Witness) By:
(Title) (seal) (Surety)
(Witness) By:
BID BOND
PAGE 1
<PAGE>
PERFORMANCE BOND
CO-OBLIGEE
Bond No. Premium Amount $
KNOW ALL MEN BY THESE PRESENTS,
That we, (full name and address of Contractor) (hereinafter called the
Principal). as Principal, and
(full name and address of Surety) a corporation duly organized under the
laws of the state of called the Surety), as Surety, are held and firmly bound
unto:
(hereinafter
LEHRER MCGOVERN BOVIS, INC.
200 PARK AVENUE
NEWYORK,NY 10166
And
G.C.T. VENTURE, INC.
220 EAST 42ND STREET
NEW YORK, NY 10166
as their interests may appear, (hereinafter celled the Obligees).
in the sum of
U.S. Dollars (S ), for the payment of which we, the said Principal and the
said Surety, bind ourselves, our heirs, executors, administrators, successors
and assigns, jointly and severally, firmly by these presents.
WHEREAS, the Principal entered into a certain Contract dated LEHRER
MCGOVERN BOVIS. INC. for:
RESTORATION OF GRAND CENTRAL TERMINAL. LMB PROJECT #2458.03
which is hereby referred to and made a part hereof as if fully set forth
herein.
19 with
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the
Principal shall promptly and faithfully perform said Contract, then this
obligation shall be null and void; otherwise it shall remain in full force and
effect.
The Surety hereby waives notice of any alteration, or extension of time
made by the Obligees or either one of them.
- Whenever Principal shall be, and declared by Obligees or either one of
them, to be in default under the Contract, the Obligees having performed their
obligations thereunder, the Surety shall promptly remedy the default by one of
the following:
1) Complete the Contract in accordance with its terms and conditions.
PERFORMANCE BOND
CO-OBLIGEE
PAGE 1
<PAGE>
2) The above named Principal and Surety hereby jointly and severally
agree with the Obligees that every claimant as herein defined) who
has not been paid in full before the expiration of a period of
ninety (90) days after the date of which the last of such
claimant's work or labor was done or performed) or materials were
furnished by such claimant, may sue on this bond for the use of
such claimant1 prosecute the suit to final judgment for such sum or
sums as may be justly due claimant1 and have execution thereon. The
Obligees or either of them shall not be liable for the payment of
any cost or expenses of any suit
3) No suit or action shall be commenced hereunder by any claimant
a) After the expiration of one (1) year following the date on which
Principal ceased work on said Contract, it being understood, however, that if
any limitation embodied in this bond is prohibited by any law controlling the
construction hereof, such limitation shall be deemed to be amended so as to be
equal to the minimum period of limitation permitted by such law.
b) Other than in a state court of competent jurisdiction in and for the
county or other political. subdivision of the state in which the Project, or any
part thereof, is situated, or in the United States District Court for the
district in which the Project, or any part thereof, is situated, and not
elsewhere.
4) The amount of this bond shall be reduced by and to the extent of any
payment of payments made in good faith hereunder.
Principal and Surety shall not be liable to the Obligees or any of them
unless the Obligees or any of them have performed the obligations to the
Principal in accordance with the terms of said Contract
Principal and Surety shall not be liable to all Obligees in the aggregate
in excess of the penal sum above stated. Sealed with our seals and dated this
day of 19 --
Attested by:
Attested by:
Principal
by:-
(Title) (seal)
Surety
by:
Attorney-in Fact
(seal)
LABOR AND MATERIAL PAYMENT BOND
CO-OBLIGEE
PAGE 2
<PAGE>
LABOR AND MATERIAL PAYMENT BOND
CO-OBLIGEE
Bond No. Premium Amount $
KNOW ALL MEN BY THESE PRESENTS, That we.
(full name and address of Contractor)
(hereinafter call the Principal), as Principal, and
(full name and address of Surety)
a corporation duly organized under the laws of the state of called the Surety),
as Surety, are held and firmly bound unto:
(hereinafter
LEHRER MCGOVERN BOVIS, INC.
200 PARK AVENUE
NEWYORK,NY 10166
And
G.C.T. VENTURE, INC.
220 EAST 42ND STREET
NEW YORK,NY 10166
as their interests may appear, (hereinafter celled the Obligees).
in the sum of
U.S. Dollars (S ), for the payment of which we, the said Principal and the said
Surety, bind ourselves, our heirs, executors, administrators, successors and
assigns, jointly and severally, firmly by these presents.
WHEREAS, the Principal entered into a certain Contract dated LEHRER
MCGOVERN BOVIS, INC. for:
RESTORATION OF GRAND CENTRAL TERMINAL. LMB PROJECT #2458.03
which is hereby referred to and made a part hereof as if fully set forth
herein. 19 with
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the
Principal shall promptly make payment to all claimants as hereafter defined, for
all -labor and material used or reasonably required for use in the performance
of the Contract, then this obligation shall be void; otherwise it shall remain
in full force and effect, subject, however, to the following conditions;
1) A claimant is defined as one having a direct contract with the
Principal or a subcontractor of the Principal, for labor, material, or
both, used or reasonably required for use in the performance of the
Contract, labor and material being construed to include that part of
water, gas, power1 light, heat, oil, gasoline, telephone service or
rental of equipment directly applicable to the Contract
LABOR AND MATERIAL PAYMENT BOND
CO-OBLIGEE
PAGE 1
<PAGE>
2) Obtain a bid or bids for completing the Contract in accordance with
its terms and conditions, and upon determination by Surety of the
lowest responsible bidder, or if the Obligees elect, upon
determination by the Obligees and the Surety jointly of the lowest
responsible bidder1 arrange for a contract between such bidder and
Obligees, and make available as Work progresses (even though there
should be a default or a succession of defaults under the contract or
contracts of completion arranged under this paragraph) sufficient
funds to pay the cost of completion less the balance of the Contract
price; but not exceeding, including other costs and damages for which
the Surety may be liable hereunder, and pursuant to the Contract, the
amount set forth in the first paragraph hereof. The term "balance of
the Contract price," as used in this paragraph, shall mean the total
amount payable by Obligees to the Principal under the Contract and
any amendments thereto, less the amount properly paid by Obligees to
the Principal.
3) Pay to the Obligees the full amount of the penal sum above stated.
Any suit under this bond must be instituted before the expiration of two
(2) years from the date on which final payment under the Contract falls due.
No right of action shall accrue on this bond to or for the use of any
person or corporation other than the Obligees named herein or the heirs,
executors, administrators, successors or assigns of the Obligees.
Principal and Surety shall not be liable to the Obligees or any of them
unless the Obligees or any of them have performed the obligations to the
Principal in accordance with the terms of said Contract.
Principal and Surety shall not be liable to all Obligees in the aggregate
in excess of the penal sum above stated. Sealed with our seals and dated this
day of 19 --
Attested by:
Attested by:
Principal
by:
(Title) (seal)
Surety
by:
Attorney-in-Fact(seal)
PERFORMANCE BOND
CO-OBLIGEE
PAGE 2
<PAGE>
EXHIBIT F
ATTN: MR. RAY TOTILLO
LEHRER MCGOVERN BOVIS, INC.
GRAND CENTRAL TERMINAL
LMB PROJECT #2458.03
PERFORMANCE & PAYMENT BOND REQUIREMENTS
ALL BONDS ARE TO BE PREPARED IN DUPLICATE
CONTRACTOR SHALL PROVIDE THE FOLLOWING:
Co-Obligee Performance bond and a Co-Obligee Labor and Material
Payment Bond, written in the full contract amount. ALL SIGNATURES AND
SEALS MUST BE IN PLACE.
BONDS MUST BE ACCOMPANIED BY THE FOLLOWING:
Valid Power of Attorney with sufficient limits for the full Contract
Amount Corporate and Surety Acknowledgment completed and notarized.
Current Financial Statement of the issuing Surety Company.
IMPORTANT
Attached are the required Co-Obligee Bond formats for LMB. If they are
unacceptable to your Surety Company, LMB will accept an "AlA 311"
form, plus a Dual Obligee rider with the word "strictly" removed,
(should read "in accordance with the terms of the contract") ONLY.
Surety Bonds will be obtained from Surety Companies with a Best's Rating of "A"
(Excellent) or better. In addition, the Surety shall have a Best's Financial
Size Category equivalent to at least Class ~ If the Performance Band is issued
in an amount exceeding $1 ,CCC,OCC, then a higher financial size category will
be required.
If the contractor fails to obtain the Surety Bonds in accordance with the above,
the Construction Manager or Owner reserves the right to grant an exception to
these requirements or to reject the Surety Bonds based on inadequate financial
protection.
When completed, please forward all bonds to:
LEHRER MCGOVERN BOVIS, INC.
CIO GRAND CENTRAL TERMINAL
200 PARK AVENUE
NEWYORK,NY 10166
<PAGE>
Revised 1/29/96
EXHIBIT G
EEC I PAYROLL PACKAGE
GRAND CEARAL STATICN TERMINAL
PHASE III: RETAIL, STRUCTURAL WORK
This Construction Payroll/EEC Package has been prepared to assist each
contractor/subcontractor in meeting all Equal Employment ~ Action requirements
for this project. All documentation required by this package must be submitted
to the following address:
Carol A Garvin
Asst. Vice President
Lehrer McGovern Bovis, Inc.
200 Park Avenue, 9th fi
New York, NY 10166
212) 592-68~3
INSTRUCTIONS
ITEM I - CONTRACTORS AFFI~TI~ ACTION PLAN
All prime contractors are required to document their good faith efforts in
soliciting M/WBE participation. The attached form should be returned with the
bid document noting the firms they've solicited and/or have awarded subcontracts
to. A mandatory goal of 15% MBE/l0% WBE is required.
ITEM II - WAGE REQUIREMENT LEP.
All persons authorized to sign payrolls must be listed on this form.
Preconstruction Statement: states that you have read the information attached
regarding your construction payroll requirements
Fringe Benefits Statement: if fringe benefits are paid on behalf of the workers
into approved third-party funds, the contractor shall submit a list of the
fringe benefits paid the hourly amount for each fringe benefit, and each should
identify the organization (5) where they transmit the funds.
A Deductions or contributions made which are mandated by Federal1 State or
Local laws are not considered fringe benefits -
B. If fringe benefits are not paid ~o an approved fund, the worker must
receive the basic hourly rate D1u5 any fringe benefit amounts which are
indicated in the applicable Wage Decision of the project. The total amount would
become the minimum basic hourly rate and must be reflected on the
<PAGE>
payroll report. If the overtime occurs during the time the worker is
performing on this project, the contractor would revert to the minimum basic
hourly rate (1e53 fringes) and compute the time and one-half on this amount.
The Wage Requirement Letter is due with submission of first payroll.
ITEM III - WH-347 PAYROLL FORM
The first payroll report submitted must be marked Initial" payroll 4.1. The last
week of work performed by the contractor/subcontractors must be marked as Final
payroll #__ All Payrolls are to be numbered consecutively beginning with number
and are due on a weekly basis.
A. Initial payroll #1 must include the contractor subcontractor IRS # on
the right front side of the form.
B. The complete name, address, social security number, race and sex must
be indicated on the payroll on which the employee first appears.
Identify any address changes thereafter. Race, sex and social
security number must appear on every payroll. Omission of any of
these items will result in returning for completion.
C. This form must be submitted, in duplicate, to our office on a weekly
basis. If no work was performed during any given week, a statement on
the payroll report form, with an original signature or letter stating
"~o work performed" will suffice.
D. Payroll Certification (reverse side of ~~-347) must be certified
manually by an officer of your company or by. an employee who has
been authorized to sign payroll systems.
E. A copy of the Apprentice or Trainee Agreement for each apprentice or
trainee must be attached to the payroll on which the worker appears.
You can obtain these from the Bureau of Apprenticeship & Training
ITEM IV - SECTION 220 - WAGE DECISION
The rates noted in this booklet are State Wage Rates to be used as a minimum
guideline on this project. Contractor/subcontractors may not pay less than the
amounts noted in this booklet.
ITEM V - WORKFORCE PROJECTION
All contractor/subcontractors are required to submit an estimate of their labor
force for the duration of the project. This report is due prior to commencement
of work.
<PAGE>
ITEM VI - MONTHLY EMPLOYMENT UTILIZATION REPORT -
(PROJECT SPECIFIC)
This form is to be completed by each contractor/subcontractor for contracts in
excess of $10,000 and signed by an officer/partner of the corporation.
The reports are to cover a four-week period during the term of the contract, and
shall include the total work hours actually worked for each employee level in
each designated trade for the entire reporting period
This report is to be submitted directly to Lehrer McGovern Bovis no later than
the fifth (5th) of each month.
ITEM VII - APPRENTICE CERTIFICATION
These sample letters will assist you in requesting apprentice certificates from
the appropriate division within the Bureau of Apprentice Training. Please refer
to your Collective Bargaining Agreement for the appropriate apprentice ratio for
each trade.
ITEM VIII - MINORITY/FEMALE WORKEORCE GOALS
All contractor/subcontractors are required to provide good faith efforts in
utilizing minorities and females in their workforce. The percentage goals are
noted by trade category and represents total hours worked.
ITEM IX - AFFI~MATIVE ACTION STANDARDS
Each contractor/subcontractor must comply with all sixteen steps to document
their good faith efforts in employment for minorities and females.
ITEM X - EQUAL OPPORTUNITY CLAUSE
The contractor/subcontractor must include the equal opportunity clause in all
subcontracts.
ITEM XI - EEC POSTERS
These posters must be posted at the jobsite, along with a copy of the wage scale
for your respective trades.
ITEM XII - SEXUAL HARASSMENT FACT SHEET
If you do not have a company policy, it is suggested that you copy this onto
your company's letterhead and have your employees read and sign in
acknowledgement.
<PAGE>
ITEM XIII - MTA DISADVNTAGED BUSINESS ENTERPRISE VENDOR
LIST
Contains listing of MTA certified firms by trade.
PRECONSTRUCTION STATEMENT - All firms are required to attend a preconstruction
conference to review relevant documents pertaining to this project prior to
commencement of work.
Document due prior to commencement of work:
a)Contractors Affirmative Action Plan
b)Sub-tier Contractors Contract or Purchase Order
c)Wage Requirement Letter
d)Workforce Projection
Documents due after commencement of work:.
a) WH-347
b) Trainee and/or apprentice certificate
c) Monthly Employment Utilization Report (CC-257)
d) Sub-tier Affidavit of Payment
<PAGE>
[Graphic Omitted]
<PAGE>
[Graphic Omitted]
<PAGE>
[Graphic Omitted]
<PAGE>
[Graphic Omitted]
<PAGE>
[Graphic Omitted]
<PAGE>
Metropolitan Transportation Authority
August 8, 1995
Mr. Jack Train
GCT Ventura1 Inc.
LaSalle Partners
22G East 42nd Street, Suite 3200
New York1 N.Y. 10017
Re: Development Agreement between Metropolitan Transportation authority and
GCT Venture, lflC.1 Developer for Work Relating to Grand Central Terminal Retail
Development dated as of 4/1/94.
Dear Jack:
The purpose of this letter to clarify the position of the Authority in regard
to the imposition of State and Local sales taxes
According to the agreement for services between GCT Venture, Inc., (GCTVI)
and Lehrer McGovern Bovis, Inc., (LMB) GTVI has authorized LMB to act as its
agent in the acquisition of materials, and other purchases In connection with
the services for the GCT Retail Development. Pursuant to the provisions of
Article 5 Title 11,Section 1275 of the New York State Public Authorities Law,
Metropolitan Transportation Authority 18 exempt from all state and local
taxes on purchases made directly, or by MTA's contractors, subcontractors,
etc., when acting as agent for MTA.
this statement takes the places of a tax exemption certificate and may be
shown, and a photocopy retained, to any Interested party regarding tax
matters pursuant to the above contract.
Richard W. Eaddy
Director
Real Estate Development
cc: L Freundlich
<PAGE>
Lehrer McGovern Bovis, Inc. Park Avenue
New York, N.Y. 10166
LMB JOB NO. 2458.03
Grand Central Terminal Venture Retail
EL: (212) 592 - 6700 FAX: (212)592-6988
REQUISITIONING INSTRUCTIONS
We are attaching herewith the following forms:
a. Requisition for Payment
b. Trade Payment Breakdown
c Affidavit and Waiver of Lien
d Rate Sheet
e Final Release
f Consent Of Surety Company To Reduction in or Partial Release of Retainage
(if bonded)
g Consent Of Surety Company To Final Payment (if bonded)
Forms (a) through (f) are the only forms that will be accepted for
submitting requisitions for payrnent Any requisitions submitted using other
forms will be returned
The affidavit and waiver of Lien is to be used for each requisition
submitted The Affidavit of Payments applies to the current requisition being
submitted: the Waiver of Lien is to be completed starting with your first
requisition. NOTE: ALL DATES MUST BE CONSISTENT WITH AND REFLECT THE CURRENT AND
PREVIOUS APPLICATIONS APPROPRIATELY. NO PAYMENT WILL BE MADE UNTIL SATISFACTORY
DOCUMENTATION IS RECEIVED.
All insurance certificates must be submitted and approved with Contract
requirements prior to submitting or processing of requisitions
No PAYMENT WILL BE MADE UNTIL SATISFACTORY INSURANCE CERTIFIACTES ARE
RECEIVED.
Once an amount has been approved for payment no FURTHER monies can be
approved until a new requisition has been received Until final payment has been
made on a contract. requisitions should be submitted each month even if no
payment is requested. REQUISITIONS MUST INCLUDE Accompanying DOCUMENTS, i.e.
BILLS OF SALE, INVENTORY L~URANCE, IF APPROPRIA T~
The Trade Payment Breakdown The purpose of the Trade Payment Breakdown
Schedule it to provide details of the contract and any change orders together
with a breakdown of the work completed to Date Please use separate sheets for
all contract value and change orders work (to match with summary sheet of
Requisition).
The Requisition for Payment This schedule includes the following:
a: The figures under Contract and Orders and Value of Work Completed are
the totals as indicated on the Trade Payment Breakdown
b.Deductions include retained percentage and amount as per the contract,
total payments requisitioned to the date of the current requisition.
c The Balance Due for This Request it the Total Value of the work completed
less Total Deductions.
Time and material work is handled by the issuance of change orders and can
be processed only upon completion of the attached Rate Sheets for each labor
category. in duplicate. and in conformance with the Contract Field tickets
are to be submitted to the Superintendent. Contractor must obtain the
written approval of the Superintendent for all field rickets. Field ticket
without the Superintendents approval will not be processed. Invoices are to
be submitted to the Project Manager for issuance of change order with a copy
of the approved field ticket These approved change orders are to be included
in your monthly requisitions for payment.
REQUISITION FOR PAYMENT
<PAGE>
[graphic omitted]
<PAGE>
[graphic omitted]
<PAGE>
[graphic omitted]
<PAGE>
FINAL RELEASE
FINAL WAIVER OF CLAIMS AND LIENS AND LEASE OF RIGHTS
<TABLE>
<CAPTION>
<S> <C> <C>
Date Contract Date
'project Grand Central Terminal Venture Project Contract Price
--------------------------------------
lob/Phase Name GOTY - Retail Change Orders
Job/Phase ~ 458.01 Total Adjusted Contract Price
Address Gr2nd Central Terminal Amount Previously Paid
City New York City Amount Previously Billed And Not Yet Paid
County Manhattan Balance Due - Final Payment
State New York
Owner Lehrer McGovern Bovis, Inc
</TABLE>
The undersigned hereby acknowledges that the above Balance Due
when paid represents payment in full for all labor, materials. etc., furnished
by the below named Contractor or Supplier in connection with its work on the
above project in accordance with the Contact made by it with Lehrer McGovern
Bovis. Inc.
In consideration of the amounts and sums previously received, and
the payment of _______________________________________________________________
being the full and Final )payment amount due. the below named Contractor or
Supplier does hereby waive and release Lehrer McGovern Bovis, Inc., CCI' Venture
Inc., and LaSalle Pi: from any and all claims and liens and rights of liens upon
the premises described above, and upon improvements now or hereafter thereon,
and upon the monies or other considerations due or to become due from Lehrer
McGovern Bovis ,Inc.. OCT Venture Inc., and/or LaSalle Partners or from any C
person, firm or corporation said claims. liens and rights of liens being on
account of labor, services, materials, fixtures or apparatus heretofore
furnished by the o, named Contractor or Supplier to the Project' The premises as
to which said claims and liens are hereby released are identified as follows:
Grind Central Terminal
The undersigned further represents and warrants that he/she is
duly authorized and empowered to sign and execute this waiver on his/her own
behalf and on behalf of the company or business for which he/she is signing that
it has properly performed all work and furnished all -materials of the specified
quality per plans and specifications and in a good and workmanlike manner, fully
and completely that it has paid for all the labor, materials. equipment and
services that it has used or supplied. that it has no other outstanding and
unpaid applications. invoice, retentions, oldbacks, expenses employed in the
prosecution of work, chargebacks or unbilled work or materials against Lehrer
McGovern Bovis, Inc., OCT Venture Inc., and/or LaSalle Partners , as of the date
of the aforementioned last and final payment application; and any materials
which have been supplied or incorporated into the above premises were either
taken from its fully paid or open stock or were folly paid ~r and supplied on
the last and final payment application or invoice
The undersigned further agrees to defend, indemnify and hold
harmless Lehrer McGovern Bovis, Inc., OCT Venture Inc., and/or LaSalle Partners
or any losses or expenses (including without limitation reasonable attorneys,
fees) should any such claim, lien, or right of lien be asserted by the below
named Contractor or Supplier or by any of its or their laborers, materialmen or
subcontractor
In addition. for and in consideration of the amounts and Sums
received, the below named Contractor or Supplier hereby waives, releases and
relinquishes any and all claims, rights or causes of action in equity or law
whatever arising out of through or under the above mentioned contract and the
performance of work pursuant thereto.
The below named Contractor or Supplier further guarantees that
all portions of the work furnished and ~ are in accordance with the Contract and
that the terms of the Contract with respect to this guarantee will remain in
effect for the period specified in said Contract
<PAGE>
Lehrer McGovern Bovis, GCTV, MNRR HOT WORK PROCEDURE
A PURPOSE:
The intent of the "Hot Work" procedure is to implement fire protection
precautions, minimize the potential of a fire on the project and formally notify
all the parties.
B. SCOPE:
This procedure will encompass hot work operations conducted by all
contractors, subcontractors, and sub-tier contractors, without exceptions.
C DEFINITION:
"Hot Work" is considered to be flame equipment, gas or are cutting,
welding, brazing, cad welding ,sawzall cutting and spark-producing equipment
D. GENERAL PRECAUTioNS:
The following general conditions will apply to each hot work operation:
1. A hot work provided by Lehrer McGovern Bovis is required and must be in
the contractor's possession before any work begins. Each contractor/ involved in
hot work operations is required to request a hot Work permit 24 hours prior to
actual intended hot work.
2. Hot work operations are limited to the area and time specified in the
hot work permit
3. Hot work cannot begin on or near any container or equipment that does
contain, did contain flammable liquids until the fire and/or explosive hazard
has been eliminated and/or protected.
4. Storage 'areas of compressed gas cylinders containing oxygen or fuel
gases must be according to Federal, State or local regulations. Gas and oxygen
cylinders are limited to seven cylinders per gas for each contractor. No propane
heating cylinders are permitted on the project Empty cylinders must be removed
from the building immediately. All compressed gas cylinders must be stored
upright, capped and secured.
FINAL REVISION May 30, 1996
<PAGE>
5. A fire detection suppression system cannot be made inoperable without
the express written permission of Lehrer McGovern Bovis. If torch or welding
work occurs within 3 feet of said system, the area must be protected by the
contractor conducting the work, from accidental discharge by a means or method
approved by GCTVIMNRR (i.e. MOP). I,
6. Combustible materials subject to hot work operations must not be stored
closer than 35 feet of the hot work operations.
7 Precautions must be taken by use of fire blankets or fire stop to ensure
fire safety to areas below.
8. A minimum of one crew member, other than the person doing the hot work,
must act as the designated fire watch at all times that the hot work operation
is in progress and for one hour thereafter. A copy of the hot work permit to be
maintained by the fire watch person.
9. The firewatch must remain within 50 feet of the hot work; be supplied
with a minimum of one (1) twenty pound ABC drychemical fire extinguisher: know
who to call to report a fire; and be familiar with the operations of the
extinguishing equipment
10. An additional firewatch may be required on the other side of any wall
or partition if the hot work ~ performed adjacent to the wall or partition.
11. The equipment, including hoses, gauges, leads, cords, being used must
be in good condition, inspected on a regular basis, and must be immediately
removed from service if found to be defective.
12. Barriers, protecting screens, or warning signs must be used to alert
the other trades or facility employees of the work being done.
13. The Contractor must contact the Lehrer McGovern Bovis Office in case of
fire emergency 212-867~9191; and in police department emergency - 212-3406911.
14. Should the use of a fire extinguisher be necessary, a fully charged
replacement is required before work can resume.
15. The hot work area must be inspected for one hour after hot work ceases
and again at the end of normal work shift (whichever is later).
FINAL Revision
May 301 1996
<PAGE>
Lehrer McGovern Bovis J GCTV MNRR
HOT WORK PERMIT
[graphic omitted]
<PAGE>
contractor
|
LMB
|
GCTV/MNRR
|
FIRE SAFETY
|
LMB
|
CONTRACTOR
Tishman
September 13, 1996
U.S. Bridge of New York, Inc.
53-09 97th Place
Corona, New York 11368
Att: Mr. Ronald Polito
Re: Louis Vuitton N.A. Office Tower
East 57th Street
New York, New York
Trade:
Structural Steel/Metal Deck
Gentlemen:
Enclosed please find fully executed copy of the contract for the above noted
trade for your use and information.
Very truly yours,
TISHMAN CONSTRUCTION CORPORATION OF NEW YORK
As Agent for Starre Realty
William Stanton Vice President
WS:erf
Enc.
Tishman Construction Corporation of New York 666 Fifth Avenue, New York, NY
10103 (212)399-3600 Fax (212)957-9791
<PAGE>
PROJECT: LOUIS VUITTON N.A. OFFICE TOWER
East 57th Street
New York, New York
TRADE: STRUCTURAL STEEL/METAL DECK
OWNER: Starre Realty
130 East 59th Street
New York, New York 10022
(herein called the "Owner") acting by and through
CONSTRUCTION Tishman Construction Corporation of New York
MANAGER 666 Fitth Avenue
New York, New York 10103
(herein called the "construction Manager") as agent for
Owner and
CONTRACTOR: U.S. Bridge of New York, Inc.
53-09 97th Place
Corona, New York 11368
(herein called the "contractor")
Until the Contractor is notified in writing by the Owner to the
contrary, all actions to be taken by, all approvals, notices, consents,
directions, and instructions to be given by, all notices and plans to be
delivered to, all determinations and decisions to be made by, and, In general,
all other action to be taken by, or given to, the Owner, shall be taken, given
and made by, or delivered or given to, the Construction Manager in the name and
on behalf of the Owner. The Owner (and not the Construction Manager) shall be
solely obligated to the Contractor for all sums required to be paid hereunder to
the Contractor.
As used herein:
(i) "Architect" shall mean:
Hillier/Eggers
440 Ninth Avenue
New York, New York 10022
(ii) "Building" shall mean:
Office Building located at 17,19 & 21 East 57th Street (iii)
"Indemnitees" shall mean:
Starre Realty; 1896 Corp.; R.L.J. Associates, L.P.; AEZ Corporation;
Louis Vuitton, NA, Inc.; Groupe George V; Metropole Realty Advisors,
Inc.; NTX Interiors, Inc.; Tishman Construction Corporation of New
York and their respective parent companies, corporations and/or
partnerships and their owned, controlled, affiliated, associated and
subsidiary companies, corporations, and/or partnerships and the
respective agents, consultants, principals, partners, servants,
officers, stockholders, directors and employees of each.
(iv) "Site" shall mean:
The project encompasses 17,19 & 21 East 57th Street which is located
on the Northside of East 57th Street and sounded by 600 Madison Avenue
on the North; 590 Madison Avenue on the East: and 15 East 57th Street
on the West as indicated by Lovell & Belcher Site Survey dated October
26,1995.
WHEREAS, Owner has undertaken the construction of the Building on the Site
in accordance with the drawings and specifications prepared by the Architect;
and
WHEREAS, Construction Manager has agreed to act as agent for Owner in
connection with the construction work of the Building; and
WHEREAS, Owner desires to let and Contractor desires to perform a portion
of the construction work;
NOW, THEREFORE, Owner and Contractor agree as follows:
<PAGE>
CONTRACTOR TO COMPLY WITH PLANS AND SPECIFICATIONS
1. The Contractor shall provide for the Site all the labor, supervision and
materials hereinafter set forth in exact accordance with specifications hereto
annexed or described herein and as shown on plans, drawings and details prepared
by the Architect, which plans, drawings and details are to be returned to the
Owner upon the completion of the work. Such additional drawings as may be
necessary to explain and detail the work will be furnished by the Owner, and are
to be conformed to, except where inconsistent with original plans and
specifications. The plans, drawings and details, and the specifications are
intended to supplement one another, and any work or materials shown, mentioned
or reasonably implied in one and not in the others are to be furnished by the
Contractor without extra charge. The enumeration of particular items in this
contract or in the specifications shall not be construed to exclude other items.
The intention of the documents is to include all labor, materials, engineering,
equipment, transportation, tools, plant, appliances, appurtenances and other
facilities, whether specified herein or not, necessary for the proper execution
and completion of the work. Contractor must refer any question respecting the
specifications, plans, drawings and details, about which it is in doubt, or
which seems to admit of a dual interpretation, to the Owner for its decision, by
which Contractor must abide.
DUTIES OF CONTRACTOR
2. The Contractor recognizes the relations of trust and confidence
established between it and the Owner by this contract. The Contractor covenants
and agrees with the Owner to furnish its best skill and judgment and to
cooperate with the Owner and Construction Manager in forwarding the best
interests of the Owner. The Owner and Construction Manager shall have the right
to exercise complete supervision and control over the work to be done by the
Contractor, but such supervision and control shall not in any way limit the
obligations of the Contractor.
SHOP DRAWING
3. The Contractor shall, at its own cost and expense, furnish the Owner
within a reasonable period from the date hereof, all shop drawings, schedules,
reports, diagrams, layouts, setting plans, cuts, explanations, catalogue
references, samples and other data regarded by the Owner as necessary, in the
number required by the Owner for submission to the Owner for its approval,
correction, rejection or disapproval. The Owner's and/or the Architect's and
Consultants' approval of such shop drawings, schedules, reports, diagrams,
layouts, setting plans, cuts, explanations, catalogue references, samples and
other data shall not relieve the Contractor from responsibility for deviations
from the contract, specifications and/or drawings, unless it has, in writing,
called the Owner's attention to such deviations, at the time of delivery of such
shop drawings, schedules, reports, diagrams, layouts, setting plans, cuts,
explanations, catalogue references, samples and other data to the Owner, nor
shall it relieve Contractor from responsibility for errors. The Contractor shall
make any corrections required by the Owner, file with the Owner corrected copies
and furnish such other copies as may be needed. The Contractor shall make all
submissions of shop drawings directly to the Owner for Its approval. No
submission shall be made directly to the Architect, unless approved by Owner,
and if any submission is so made, the approval or modifications authorized by
the Architect shall not be binding upon the Owner unless and until the Owner has
granted its approval thereto. The Contractor shall obtain shop drawings from
other contractors and coordinate its work to avoid interference with other
contractors work. The Contractor shall furnish its shop drawings to other
contractors.
SPECIFICATIONS VARIED BY LAWS
4. The Contractor shall furnish, without extra charge, all work and
materials not mentioned or shown, but generally included under this class of
contract, necessary for the proper execution and completion of the work, and
also any work or materials of the kind herein contracted for required to conform
the Building to all laws and the Rules and Regulations of all Municipal
Departments, the Board of Fire Underwriters and all other authorities having
jurisdiction.
MEASUREMENTS VARIED BY JOB CONDITIONS
5. Dimensions on plans are to be followed [Remainder Intentionally Omitted]
OWNER TO INTERPET SPECIFICATIONS
6. The Owner shall decide all questions which may arise as to the
performance, quantity, quality, acceptability, fitness and rate of progress
of the work or materials furnished under this contract. It shall decide all
questions which may arise as to the interpretation of the specifications and
of drawings and as to their fulfillment on the part of the Contractor, and as
to defects in the Contractor's work, The Owner, whose interpretation of and
decision as to the meaning of the plans, drawings, details and specifications
or any part thereof shall be final. All interpretations and decisions to be
consistent with industry standard practices.
<PAGE>
INDEMNITY VIOLATION OF LAW
7. (a) The Contractor agrees to perform the work in a safe and proper
manner and so as to comply with all laws and ordinances referring to such work,
and will indemnify and save the Indemnitees harmless (such Indemnity, as used in
this Article, to include the defense of all claims made against the Indemnitees)
against all penalties for violation of same and any and all costs and damages
Incurred In connection therewith. Wherever used in this contract, an Indemnity
is referred to as being provided for the indemnitees, said indemnity shall be
extended to their respective parent companies, corporations, and/or partnerships
and their owned, controlled, associated, affiliated and subsidiary companies,
corporations and/or partnerships and the respective agents, consultants,
principals, partners, servants, officers, stockholders, directors and employees
of each.
The general administration of the construction by the Construction
Manager, as agent of the Owner, is for the sole purpose of representing the
Owner's interests, in determining that the work Is being properly executed.
While the Construction Manager shall provide the Contractor with assistance and
direction In prosecuting the work, such action will not relieve the Contractor
from any responsibility for the work, Including, but not limited to
responsibility for construction means, methods, techniques, sequences or
procedures or for safety precautions and programs in connection with the work.
In no event shall the Owner or Construction Manager be liable to the Contractor.
either in tort or otherwise, for any costs or damages, whether asserted directly
against the Owner or Construction Manager or by the way of indemnification in
whole or part, resulting from any act, direction, supervision, instruction or
coordination furnished to the Contractor by the Owner or Construction Manager or
the failure to furnish same, which directly or indirectly affects the
performance of the Contractor, unless the Contractor, before complying therewith
to its damage, or in the case of a failure to act, within five (5) days after
such omission has occurred, objects in writing to the Construction Manager to
said act or omission and notifies it in writing that same will result in
monetary costs or damages to the Contractor. Failure by the Contractor to
furnish said notice of objection in writing as required herein shall constitute
an irrevocable waiver and release of all claims for damages against the
Construction Manager arising therefrom.
PROPERTY DAMAGE
(b) The Contractor hereby assumes entire responsibility for any and all
damage or injury of any kind or nature to property, including adjoining
property, caused by or resulting from the execution of the work or occurring in
connection therewith, and agrees to Indemnify and save harmless the Indemnitees
from and against all claims, liabilities, damages, loss and expense incurred by
or imposed upon the Indemnitees for damage or Injury to such property, however
such damage or injury may be caused, whether such claims, liabilities, damages,
loss or expense arise from or are caused directly or indirectly by (i) the
negligence of the Contractor or any subcontractor, to him or the agents or
employees of either of them, in the performance of work under this contract, or
the use by the Contractor or 8ny his subcontractor, or the agents or employees
of either of them, of any materials, tools, hoists, ladders, implements,
appliances, scaffolding ways, works, machinery or other property, or (ii) the
negligence of the Indemnitees, whether attributable to a breach of statutory
duty or administration regulation or otherwise or (iii) injury or damage to
property for which liability is imputed to the Indemnitees; or (iv) any other
manner; provided, however, that the foregoing indemnity shall not extend to a
case where such damage or injury is caused by the sole negligence of any of the
Indemnitees. The Contractor shall be solely responsible for the safety of its
work and of all equipment and materials to be used therein until final
completion and acceptance of the same and shall promptly at its own expense
repair any damage or Injury to same, unless such damage or injury is cause by
the sole negligence of any of the Indemnitees.
PERSONAL INJURIES
(c) The Contractor shall properly guard its work and areas affected
by its work and properly perform its work to prevent any person or persons
from being injured by it or by the condition of the Site or by the condition
of any other place where work incidental to the project is being performed,
and shall in all respects comply with any and all provisions of the law and of
local ordinances relating to construction work, including but not limited to
maintenance of danger signals, barriers, lights and similar safeguards
respecting falling materials and in and about all excavations, protruding
nails, hoists, openings, scaffolding, stairways and other parts of the work
and adjacent and other areas where the same are required. The Contractor
agrees to indemnify and save harmless the Indemnitees from and against all
liability, damage, loss, claims, demands, actions and expenses, including but
not limited to attorney's fees which arise or are claimed to arise out of or
is connected with any accident or occurrence which happens, or is alleged to
have happened in or about the place where such work is being performed,
whether at the Site or other place, (1) while the Contractor is performing the
work, either directly, or indirectly through a subcontractor of the Contractor
or materials or vendors agreement, or (2) while any of the Contractor's or
said subcontractor's property, work in progress, equipment or personnel are in
or about such place or the vicinity thereof by reason of or as a result of the
performance of the work, including without limiting the generality of the
foregoing, all liability, damages, loss, claims, demands and actions on
account of personal injury, death or property loss to any Indemnitee, any
Indemnitee's employees, agents, subcontractors or invitees, any other
Contractor, its employees,
<PAGE>
agents, subcontractors or invitees, or to any other persons, whether based upon
or claimed to be based upon, statutory (including, without limiting the
generality of the foregoing, worker's compensation), contractual, tort or other
liability of any Indemnitee, and whether or not caused or claimed to have been
caused by active or Inactive negligence or other breach of duty by any
Indemnitee, any lndemnrtee's employees, agents, subcontractors, or invitees, or
any other person as long as the Indemnitor or its subcontractor or its
materialman or vendor was negligent in whole or in part.
In the event that 100 per cent indemnity is prohibited by law under the
Paragraph above, then the extent of Indemnity under said paragraph shall be
limited to the portion of the damages (whether from personal injury, death dr
property damage) not attributable to the percentage of negligence of the
Indemnitee.
It is further agreed that, if the Contractor subcontracts or delegates
to ethers the work or any part thereof, said subcontractors and/or delegates and
their agents, servants and/or employees, for the purpose of contractual
Indemnity only, shall all be deemed servants and/or employees of the Contractor
so that any negligence on the part of the subcontractors or the delegates or
their agents, servants and/or employees shall be deemed the negligence of the
Contractor for purposes of indemnity under this Article 7.
It Is further agreed that, if the Contractor subcontracts or delegates
to others the work or any part thereof, the contractor will have the
subcontractors and/or delegates agree to indemnify the Indemnitees in the same
manner as the Contractor has agreed to indemnify the Indemnitees under this
Article 7 and shall deliver a true copy of said agreement to the Construction
Manager. In the absence of such agreement or the delivery of same prior to the
subcontractors or delegates commencing their work, the Contractor will be held
liable to indemnify the Indemnitees in the same manner and to the same extent
that the subcontractors and/or delegates would have been required to indemnify
the Indemnitees if such agreement had been made. Whether or not the Contractor
secures or delivers an agreement by the subcontractors and/or delegates to
indemnity the Indemnitees as provided herein, the Contractor's independent duty
to Indemnify the Indemnitees pursuant to the terms of the contract, shall remain
in full force and effect.
The Contractor's requirements of indemnity under this Article 7 shall
be read cumulatively, and no paragraph of indemnity shall be read so as to
restrict in any way any other paragraph of indemnity. The purpose of these
indemnity paragraphs is to give the Indemnitees that greatest right of indemnity
against the Contractor allowed by law.
DAMAGE INDEPENDENT CONTRACTORS
(d) The Contractor agrees to Indemnify and hold the Indemnitees
harmless by reason of any liens, claims, demands, judgement or other
liabilities, which may be asserted against the Indemnitees by any other
Independent contractor on the job, and which arise out of any act or omission of
the Contractor.
WITHOLDING OF PAYMENTS TO EFFECT INDEMNITY
(e) In the event of any such liability, loss, expense, damage or
injury, or if any claim or demand for damages is made against the Indemnitees,
the Owner may withhold from any payment due or thereafter to become due to the
Contractor under the terms of this contract. an amount sufficient in its
judgment to protect and indemnify Indemnitees for any and all such claims,
liability, expense, loss, damage, or injury, or tne Owner, in its discretion
may require the Contractor to furnish a surety bond satisfactory to the Owner,
guaranteeing such protection, which bond shall be furnished by the Contractor
within five (5) days after written demand has been made therefore.
(f) The indemnification obligation of the Contractor under this Article
7 shall not be limited in any way by any limitation on the amount or type of
damages, compensation or benefit payable by or for the Contractor or any
Subcontractor under Workmen's Compensation Acts, Disability Benefit Acts or
other employee benefits acts, and is in addition to any rights to
indemnification which. may exist at law.
INSURANCE
8. Unless otherwise provided for by the attached Insurance Rider.
prior to commencement of any work under this contract, and until completion
and final acceptance of the Work, the Contractor and each and every
subcontractor shall, at its own expense, maintain the following insurance on
its own behalf and for the protection of the Owner, Construction Manager and
all other indemnities named in this Contract:
a. Comprehensive General Liability
b. Worker's Compensation
c. Comprehensive Automobile Liability
d. All other insurance protection required by the Owner
All of the above coverages shall comply with the specific requirements
contained in the Insurance Rider hereby attached and made a part of this
contract.
<PAGE>
SIGNS
9. Contractor shall not place any signs, billboards or posters on any portion
of the Site, Building, the property or fences (temporary or permanent)
surrounding the same, except upon prior written permission received from the
Owner, and then only of a size, material, color and type and at a location
approved by the Owner.
TOOL SHEDS
10. If so required by Owner, the Contractor shall, at its own cost, provide,
erect and maintain, at locations designated by the Owner, fireproof tool sheds
for storing the Contractor's tools, materials and equipment. The Contractor
shall relocate its tool sheds as requested by the Owner at the Contractor's
own cost. The Owner or Construction Manager will not be responsible for any
clothing, tools, materials or equipment lost, damaged, stolen or destroyed.
CONDITION OF PREMISES AND ADJACENT PROPERTY
[INTENTIONALLY OMITTED]
OWNER TO DEDCIDE IN EVENT OF CONFLICT
12. Whenever the specifications shall be at variance, in conflict or with
any of the provisions of this contract, the Contractor shall advise the Owner
and the interpretation and decision of the Owner shall be final and binding on
the Contractor.
INSPECTION
13. The Contractor shall provide sufficient, proper and safe facilities at all
times for the inspection of the work by Architect, the Owner, Construction
Manager, Mortgagees, the Municipal and/or State inspectors, and their
authorized representatives. If any work is covered up without the approval of
the Owner, it must, if required by the Owner, be uncovered for inspection at
the Contractor's expense. The Contractor shall afford and provide at all times
to the Architect, the Owner, the Construction Manager and their
representatives satisfactory evidence of the quality of materials used and
complete information in writing as to where materials to be used in the
performance of this contract are being manufactured or assembled, and full and
free access to all shops and manufactories for the purpose of Informing
themselves as to the general condition and progress of the materials herein
contracted to be used or Installed. The Contractor shall instruct such
suppliers and manufacturers to give full and accurate information in writing
directly to the Owner on any questions concerning quality, performance,
delivery status, and such other data as may be requested by the Owner.
MATERIALS AND EQUIPMENT
14. All materials and equipment are to be new and of the best quality of the
kind specified unless material or equipment of Inferior type Is distinctly
specified, and the Contractor shall, if required by the Owner, furnish
satisfactory evidence of the kind and quality of materials and equipment. The
Contractor shall, if required by the Owner, obtain the manufacturer's written
recommendation that the material arid equipment is designed and appropriate
for the use intended. Such materials and equipment shall not be subject to any
conditional bill of sale, security agreement, financing statement, chattel
mortgage, or any other claim, lien or encumbrance. Materials and equipment
shall be promptly delivered and distributed where Owner may require or direct,
as needed for the uninterrupted and speedy progress and completion of the
work, and so as not to encumber the Site unreasonably. The Contractor shall,
if required by the Owner, cause the materials (1) to be manufactured in
advance, (2) to be warehoused either at the factory or elsewhere, as directed
by the Owner, (3) to be delivered to the Site promptly when so instructed by
the Owner and (4) to be relocated or removed from the Site at the cost of the
Contractor. Care must be exercised by the Contractor against overloading any
parts of floors, roofs, scaffolding and other installations. All materials
delivered at the Site which are to form a part of the work herein specified
shall not be removed without the consent of the Owner, but the Contractor will
have the right to and shall remove all its surplus material after completion.
<PAGE>
LABOR
15. All work is to be done in the best manner and by persons skilled in
the type of work to be performed. All labor employed under this contract shall,
at the option of the Owner, to the extent permitted by law, be union and/or that
recognized by and in harmony with the local Building Trades Employers'
Association and Contractor shall not employ any labor which may cause dissension
with other workers on the Site, by whomsoever employed. The Contractor shall
give the work constant attention and supervision through a responsible
representative or superintendent, and any necessary assistants. Such
representative shall be authorized to act for the Contractor in all matters
relating to the work, and all directions given him shall be as binding as if
given to the Contractor. The Contractor shall also keep a competent foreman at
the Site while work is in progress, and enforce strict discipline among its
employees, including the Owner's regulations with regard to fires, smoking and
other hazards. The Owner is given the right to require the Contractor to remove
Immediately any employee or agent employed at the Site whom the Owner deems
incompetent or a hinderance to the proper progress of the work, and such person
shall not again be employed in the work without the prior consent of the Owner.
PROTECTION OF WORK AND EQUIPMENT
16. The Contractor during the construction of its work and while it is
working on the Site in any capacity whatever, and until the completion' of the
project, shall protect all unfinished work and all materials on the Site, all
adjacent property and all tools, plants, equipment and other appliances for the
Contractor's use or Incidental thereto for the execution of this contract,
whether furnished by the Contractor or Owner, from rain, water. frost and the
elements and from all other kinds of damage which may be caused in any manner
whatsoever, and the Contractor shall be entirely responsible for any loss or
damage done to said work, materials, tools, plant, equipment and other
appliances in any manner aforementioned, excepting damage by fire to materials
incorporated into the work or delivered to the Site for incorporation into the
work, even though the particular work damaged may be finished at the time and
the Contractor may be working in some other portion of the Site, and the
Contractor hereby agrees that it will not hold the Indemnitees responsible for
any such loss or damage, by whomsoever caused.
UNSOUND WORK OR MATERIALS
17.The Contractor, upon receiving notice from the Owner that the
Contractor has furnished inferior, improper or unsound work or materials
(including equipment) (whether worked or unworked), or work or materials at
variance with that which is specified, will, within twenty-four (24) hours,
proceed to remove such work or materials and make good all other work or
materials damaged thereby, and, at the option of the Owner, the Contractor shall
immediately replace such work or materials with work or materials as specified.
The removal, replacement and repair shall be performed on "off hours" or
overtime with manpower sufficient, In the judgment of the Owner, so as not to
interrupt or delay the Owner's construction schedule and so as to avoid
disturbance to occupants of the completed Site and/or Building. If the
Contractor does not remove such unsound work within a reasonable time, the Owner
may remove it and may store the material at the expense of the Contractor. If
the Contractor does not pay the expenses of such removal within ten (10) days'
time thereafter, the Owner may, upon (10) days' written notice, sell such
materials at auction or at private sale and shall account for the net proceeds
thereof, after deducting all the costs and expenses that should have been borne
by the Contractor and all expenses of the sale. The Owner shall have the
authority at all times, until final completion and acceptance of the work, to
inspect and reject work and materials which in its judgment are not in
conformity with the drawings and specifications, and its decision in regard to
character and value of work shall be final and conclusive on both contracting
parties. If the Owner permits said work or materials to remain, the Owner shall
be allowed the difference in value or shall at its election have the right to
have said work or materials repaired or replaced, as well as the damage caused
thereby, at the expense of the Contractor, at any time within one year after the
completion of the entire project. or within such longer period as may be covered
by any guaranty; and neither payments made to the Contractor, nor any other acts
of the Owner, shall be construed as evidence of acceptance, waiver or estoppel.
Any expense incurred by the Owner in connection with the foregoing, shall be
borne by the Contractor, and the Owner may withhold money due to the Contractor
or recover money already paid to the Contractor, to the extent of such expense.
FITTING OF THIS WORK WITH OTHER WORK
18. The Contractor will furnish all labor, implements, tools, scaffolding,
rigging, hoisting and other items required to carry on its work, In the most
approved and up-to-date manner; and shall do the necessary incidental cutting of
woodwork. brick, stone, masonry, plaster, cement, iron, metal or other material
for the installation of its work, and will do all patching in connection
therewith; but cutting is to be avoided where possible. The Contractor will, if
required by Owner, do all necessary cutting, fitting and patching of its own
work that may be required to make the several parts come together properly, and
fit the work to receive or be received by work of other contractors shown upon,
or reasonably implied by, the drawings and specifications. The Contractor shall
not endanger any work by cutting, digging or otherwise. In laying out its work,
Contractor shall also examine the work installed by others and the shop drawings
of the work to be installed by others prior to the beginning of the installation
of its own work. If the Contractor begins its work, the starling of such work
shall be conclusively deemed to mean that it accepts all preceding work as
suitable and
<PAGE>
proper to receive its work, unless it has notified the Owner in writing to the
contrary before starting. In the event of failure of the Contractor and another
contractor to agree as to the extent of cooperation to be exhibited or of work
to be done by either, to Insure the carrying out of their respective agreements,
such disagreement shall be resolved by the Owner whose decision shall be final
and binding upon all parties.
RUBBISH REMOVAL
19. The Contractor shall at all times keep the Site free from accumulation of
waste materials or rubbish caused by its employees or work and, at the
completion of the work, it shall remove all its tools, scaffolding and surplus
materials and shall leave its work broom clean or its equivalent. The Contractor
shall daily, or less frequently as the Owner may require. collect its rubbish at
places where directed by the Owner and shall remove the rubbish from the Site
without unnecessary delay. The Contractor shall do all required cleaning within
twenty-four(24) hours notice from the Owner, whether verbal or in writing, and
if the Contractor fails to do such cleaning to the satisfaction of the Owner,
the Owner may do the cleaning and charge the Contractor for all costs incurred.
COMPLIANCE WITH LAW
20. The Contractor shall procure and pay for all permits, licenses, approvals,
certificates and authorizations necessary to the prosecution and completion its
work and deliver evidence of the same to the Owner. All work shall be done in
strict accordance with all laws, ordinances, rules, regulations and requirements
of the Board of Underwriters and all Municipal, State, Federal and other
authorities having jurisdiction. Where drawings and specifications conflict with
the law, the law is to be followed The Contractor shall promptly notify the
Owner, the respective departments or official bodies when its work is ready for
inspection and shall, at once, do all work required to remove any violations or
to comply with such inspections, without additional charge to the Owner. The
Contractor shall perform all work necessary to obtain approvals of the
authorities mentioned above without additional cost to the Owner.
LIENS
21. If at any time, there shall be evidence of any lien or claim for which, if
established, the Owner might become liable, or which should, In any event, be
charged to the Contractor, the Owner shall have the right to retain, out of any
payment due or thereafter to become due, an amount sufficient to indemnify the
Owner against such lien or claim, including bond premiums and attorneys' fees,
and to apply the same in such manner as Owner deems proper to secure protection
and/or satisfy such claim and liens. Should there prove to be any such lien or
claim after all payments are made to the Contractor, it shall repay the Owner
all sums which may be compelled to pay in discharging such lien or claim,
including any and all legal fees or other charges.
PATENTS
22. The Contractor will not unlawfully use or install any patented article, and
agrees to Indemnify and save the Indemnitees harmless from any claim and against
all damage which the Indemnitees may sustain by reason of the use or
installation of such patented article, and at its own cost and expense to defend
any action, whenever Instituted, brought against the Indemnitees or their
respective successors or assigns, founded upon the claim that any such article,
or any part thereof, infringes any such patent. In the event of any such claim
or damage, the Owner may withhold from any payment due or thereafter to become
due to the Contractor, an amount sufficient in its judgment to protect and
indemnify the Indemnitees for any such claim or damage, or the Owner may require
the Contractor to furnish a surety bond satisfactory to the Owner providing for
such protection and indemnity. which bond shall be furnished by the Contractor
at its own cost and expense, within five (5) days after written demand has been
made therefor. The Contractor shall pay all royalties, fees and other claims in
connection with patented articles which it uses under this contract. In the
event of any injunction or legal action serving to stop the work, the Owner
shall have the privilege of requiring the Contractor to substitute such other
articles of like kind as will make it possible to proceed with and complete the
work, and all cost and expenses occasioned thereby shall be borne by the
Contractor.
ASSIGNMENT
23. (a) The interests, rights, powers, duties and liabilities of the parties
hereto shall be binding upon, and shall enure to the benefit of, the respective
successors and assignees of the parties; but the Contractor shall not assign or
transfer its interest in this contract or assign or transfer any right it may
have under the same or the proceeds payable hereunder or any part hereof, or
subcontract or delegate to others the work or any part thereof, unless the
written consent thereto of the Owner is first procured, and any assignment or
subcontract made in violation of this provision shall be null and void. Any such
subcontract shall provide that it is subject to the provisions of this contract
and shall provide that the Contractor has all the rights and remedies against
the subcontractor that the Owner has against the Contractor under this contract
and shall expressly incorporate all such provisions as far as the same are
applicable and no such subcontract shall be valid without the consent of the
Owner endorsed thereon. The Contractor agrees that it is as fully responsible to
the Owner for the acts and omissions of its subcontractors and of persons either
directly or indirectly employed by them, as it is for the acts and omissions of
persons directly employed by it. Nothing contained in this contract shall
<PAGE>
create any contractual relationship between any subcontractor and the Owner, or
create any obligation on the part of the Owner to pay or to see to the payment
of any sum to any subcontractor. The Owner may, without limitation, assign this
contract, or any portions thereof, or any rights arising hereunder, including
any guaranties or warranties of workmanship or material.
CHANGE OF STATUS
(b)In the event that the project should be abandoned by the Owner,
the Owner shall have the right, at any time, to send a written notice to the
Contractor, terminating this contract, in which event, the Owner shall pay the
Contractor for all work actually provided up to the date of the sending of such
notice and shall reimburse the Contractor for all costs and expenses actually
expended and Incurred (amounts "incurred" to be limited as though Contractor's
suppliers and subcontractors had received a similar notice and were bound by a
similar provision in their agreements) up to said date which are not cancellable
or recoverable by the Contractor, arid the Contractor shall not receive any
markup for overhead and profit except to the extent of a reasonable markup on
said amount so paid and reimbursed and the parties hereto shall, except as
otherwise provided hereinabove, be released of all future liability or
obligations under this contract.
TIME OF ESSENCE
24.The Contractor shall commence and complete work and deliveries of
material at the times hereinafter mentioned or as soon thereafter as required by
the Owner or as extended by other provisions of this contract. Where the dates
for the commencement or completion of work on the making of deliveries are not
specified after the time fixed for such commencement, such work or deliveries or
the part of the same concerning which no dates are given shall be commenced
[INTENTIONALLY OMITTED] as soon as practical and shall be prosecuted and
completed with all possible diligence and speed or as otherwise directed by the
Owner. The time stated in this contract for the commencement, prosecution and
completion of this work and the deliveries and installation of material shall be
deemed of the essence of this contract.
CCOPERATION WITH OTHER CONTRACTORS
25.The Contractor must keep itself informed of the conditions at the
Site, so as not to delay the 'delivery of materials or the installation of the
work called for In this contract. It is expressly agreed that the Contractor
must cooperate with and extend every possible facility to other contractors
employed at the Site. and must afford all other contractors reasonable
opportunity for the Introduction and storage of their materials and execution of
their work. The Contractor recognizes that efficient construction of the project
requires that all the work thereon be coordinated and therefore agrees to accept
the determination of the Owner as to the time when work of the Contractor shall
begin and the manner in which it shall progress in connection with other work
involved iii the said construction. It further agrees that the direction of the
Owner with respect thereto shall be complied with fully and promptly.
DELAYS IN GENERAL
26.(a) Should the Contractor be delayed by fault of the Owner,
Construction Manager, Architect or any other contractor, or by abnormal weather
conditions, then the time fixed for the completion of the work shall be extended
for a period equivalent to the time so lost. The Owner, Construction Manager or
Architect shall not be held responsible for any loss or damage sustained by the
Contractor through delay caused by the [INTENTIONALLY OMITTED] abnormal weather
conditions, or by any other cause beyond the control of the Owner, Construction
Manager or Architect.
STRIKES
(b) Should the Contractor be delayed by general strikes or lockouts throughout
the trade, then time for the completion of the work shall be extended for a
period equivalent to the time lost, or the Owner shall, at its option, have the
right to terminate this contract and to employ other contractors to finish the
work and provide the materials therefor, and to pay the Contractor pro rata for
materials and work already supplied, or this contract price, reduced by the cost
to the Owner of completing the work for which provision Is made herein,
whichever is less.
NOTICE TO OWNER
(c) None of the foregoing causes of delay shall be deemed a valid excuse for
failure to start, perform or complete the work or deliveries at the times
specified, unless the Contractor has notified the Owner in writing of the
alleged cause of delay within forty-eight (48) hours after the commencement
knowledge thereof.
ADDITIONAL LABOR
(d) Should the Contractor fail, refuse or neglect to supply a
sufficiency of workmen or to deliver the materials with such promptness as to
prevent the delay in the progress of the work, or fail in any respect diligently
to commence and prosecute the work and proceed to the point to which the
Contractor should have proceeded hereunder, or if the different parts thereof
are not commenced, prosecuted, finished, delivered or installed on time as
herein specified or if the Contractor shall fail In the performance of any of
the covenants of this contract, the Owner shall have the right to direct the
Contractor, upon three (3) days' written notice, at the Contractor's cost and
expense to furnish such additional labor and to expedite deliveries of materials
(or the Owner may furnish such labor and expedite such deliveries at the cost to
the Contractor), which labor or expediting shall, in the Owner's opinion, be
sufficient to speed up and complete the work as herein provided.
<PAGE>
OVERTIME
(e)If such additional labor shall not be available, the Owner shall
have the right to direct the Contractor, at the latter's own cost and expense,
to work overtime to such an extent as will be sufficient, in the Owner's
opinion, to speed up and complete the work as herein provided.
REMEDIES OF OWNER
(f) The Contractor agrees that if it delays the speedy progress of the work so
as to cause loss or damage to the Owner or to other contractors, then it shall
reimburse the Owner and such other contractors for such loss. In addition to the
foregoing, the Owner shall have the right, after three (3) days' written notice
to the Contractor, to provide any such labor, additional labor, overtime labor
and materials and to deduct the cost thereof from any moneys then due or
thereafter to become due to the Contractor. Permission by the Owner for delayed
finishing shall not be construed as a waiver of the Owner's right to be
compensated by the Contractor for damage resulting from such delay.
TERMINATION BY OWNER
(g)If the Contractor shall fail to comply with any of the provision
of this contract on its part to be performed, the Owner shall have right after
three (3) days' written notice to the Contractor, to terminate this contract and
the employment of the Contractor, to take possession of the Contractor's
materials, tools, plant, equipment and appliances used or to be used for the
construction, whether on or off the Site, (and for that purpose to enter the
premises of the Contractor) and to cause the entire remaining work to be
finished and the materials therefor to be furnished by another contractor or
contractors or by day's work, as the Owner deems fit; and the Contractor shall
not be entitled to any further payment until all the work specified in this
contract shall be finished, at which time, if the unpaid balance of the amount
to be paid under this contract shall exceed the expense incurred by the Owner in
finishing the work, including overhead, attorneys' fees and damage incurred
through the default of the Contractor, such excess shall be paid to the
Contractor, but if such expense shall exceed such unpaid balance, the Contractor
shall pay the difference to the Owner. After the work has been completed, the
Contractor may remove such materials, tools, plant, equipment and appliances as
remain, but neither the Owner nor the Construction Manager shall be liable for
anything that has been lost, stolen, destroyed, worn or used. In addition,
without terminating this contract, the Owner may, under the circumstances set
forth above, terminate the Contractor's right to proceed with any part of the
work or with the furnishing of any part of the labor and/or materials.
PERFORMANCE BOND AND PAYMENT BOND
27. The Contractor, within five (5) days after notice by the Owner
given at any time prior to the completion of the work, shall at its own cost and
expense, furnish to the Owner performance and payment bonds Issued by a surety
company satisfactory to the Owner, and in form satisfactory to the Owner,
guaranteeing the due and prompt performance of all of the terms of this contract
on the part of the Contractor to be performed, and the prompt payment of all
amounts to be paid by the Contractor for labor and materials. In the event that
the Contractor fails to furnish the bonds as aforesaid, the Owner shall have the
option of declaring the Contractor to be in default and of exercising any or all
of the rights set forth in this contract. Bonds shall be written at standard
rates of surety companies authorized to do business in the State in which the
Site is located and may, at the Owner's option, be placed directly by the Owner
at the Contractor's cost and expense.
BANKRUPTCY
28. If, prior to the commencement of this contract, the Contractor
shall be adjudged a bankrupt or becomes insolvent, or if any petition under the
Bankruptcy Act of the United States is filed by or against the Contractor, or if
it should make an assignment for the benefit of creditors, or if a receiver of
the Contractor's property should be appointed, or if any judgment is taken
against the Contractor and execution is issued thereon, or if the property of
the Contractor passes into the hands of any legal representative, then and in
any of those events, the Owner may, at its option, terminate this contract and
the employment of the Contractor, with the same rights and privileges set forth
in Article 26.
ACCELERATION OF PERFORMANCE
29. If the Owner shall desire the Work of the Contractor hereunder to
be performed with greater speed than is herein contracted for, the Contractor
shall, without affecting or abridging the rights of the Owner set forth in any
Article hereof, upon receipt of a written order from the Owner, employ overtime
Work as so ordered. Direct cost of the premium time for all labor utilized by
the Contractor In such overtime work as shown on the time slips checked and
approved each day by the Construction Manager shall be paid by Owner to the
Contractor, but no overhead, supervision costs, commission or other costs shall
be charged thereon.
NO WAIVER
30. The failure of the Owner to insist in any one or more instances upon a
strict compliance with any provision of this contract, or to exercise any option
herein conferred, shall not be construed as a waiver or relinquishment of the
right of the Owner thereafter to require a compliance with such provision of
this contract. or a waiver of the right of the Owner thereafter to exercise such
option, but such provision or option will remain in full force and effect.
<PAGE>
GUARANTY
31. The Contractor hereby agrees to repair and make good any damage, defects or
fault in the premises that may appear within one year after completion, or
within such longer period as may be provided In the specifications, guaranty or
other writing, as the result of imperfect or defective work or materials
furnished by the Contractor (even if such defects or imperfections be latent) or
work or materials at variance with what is specified. All materials furnished or
installed (except where otherwise expressly specified) shall be subject to a
guaranty of one year from the date of (a) completion of the entire project, (b)
the making of final payment by the Owner to the Contractor, (c) the issuance of
a final Certificate of Occupancy, or (d) the discontinuance of the use of
permanently Installed work for temporary construction purposes, whichever is
latest. Contractor hereby agrees to make any and all repairs which may become
necessary, during the guaranty period, on account of faulty materials furnished
or faulty workmanship performed, and the guaranty period [INTENTIONALLY OMITTED]
in a prompt and expeditious manner or reasonable period from receipt of written
notice, without cost to and to the satisfaction of the Owner. All rights
acquired by the Owner through guaranties by the Contractor shall enure to the
benefit of the Owner, its successors and assigns. In addition to the foregoing,
any equipment warranties secured by the Contractor, including those in excess of
one (1) year, and any bond or guaranty which may be required under the plans or
specifications, shall also enure to the benefit of the Owner, its successors and
assigns.
PAYROLL AND SALES TAXES
32. The Contractor hereby accepts exclusive liability and shall hold the Owner
and Construction Manager harmless for the payment of contributions pursuant to
any Unemployment Insurance Law, Old Age Retirement Benefits Law and any other or
similar Social Security Law or Payroll or Income Tax now or hereafter enacted by
any City, State or Federal Government or any subdivision of either, levied or
based upon the payroll of the Contractor for employees partly or wholly engaged
in the work covered by this contract. The Contractor agrees to furnish all
necessary information to enable the Owner to comply fully with all the
requirements of such laws. All sales and use taxes are included in the contract
price and are to be paid by the Contractor. In the event that any law is or has
been passed. or any rule or regulation pursuant thereof is enacted, which
requires the Owner to pay, either directly or indirectly, the amount of any such
tax, or should any such law, rule or regulation direct the Owner to collect the
same, or make the Owner liable for the collection thereof, or make the Owner
responsible therefor, it is covenanted and agreed that the Contractor shall
fully and completely make all payments therefor, and shall fully and completely
Indemnify and save the Owner harmless from any and all such taxes. It is further
agreed that the Owner shall have the right to deduct the amount of any and all
such taxes from the contract price at any time the Owner may, in its sole
discretion, deem it advisable, to the end that the Owner may not be under
liability therefor whatsoever, it being agreed that the Owner shall have the
right to deduct any and all such moneys from the next payments due under this
contract and from the retained percentages. If any Sales Tax provides any
exemption from tax for capital improvements, Owner agrees to provide Contractor
with the necessary certification and Contractor agrees not to charge tax with
respect to the furnishing of labor and/or materials as long as said exemption
provision is in effect.
HOISTING AND FACILITIES
33. The Contractor shall provide for hoisting all tools, materials and
equipment. The Contractor shall, at its own expense, install and maintain all
necessary meter equipment and wiring from the temporary street service to its
various items of equipment. The Owner shall have the right to utilize the
Contractor's wiring at no additional cost and the Contractor shall return to the
Site when so directed by the Owner to remove all such temporary wiring and
equipment. Should the Owner direct that the Contractor use a meter, servicing
more than one contractor and/or the Owner, the Contractor shall pay its
proportionate part of all charges. Such proportions shall be fixed by the Owner
and the apportionment shall be binding upon the Contractor.
PRICE NOT ADJUSTED FOR RISING COSTS
34. The Owner agrees to pay the sum herein set forth in current funds for such
work and materials, and in the manner and at the times herein set forth. Said
sum is intended to Include all increases in cost, foreseen or unforeseen,
including, without limiting the generality of the foregoing, taxes, labor and
materials, all of which is to be borne solely by the Contractor. All loss or
damage arising from any of the work performed under this contract through
unforseen or unusual obstructions, difficulties or delays which may be
encountered in the prosecution of same or through the action of the elements
shall be borne by the Contractor. It is mutually agreed between the parties
hereto that no payment made under this contract, shall be conclusive evidence of
the performance of this contract, either wholly or In part, nor shall it be
construed to be an acceptance of defective work or improper material, or an
approval of any of the items in any requisition made or bill rendered. All bills
or requests for payments must be presented in writing.
SCHEDULE OF VALUES
35. (a) Prior to the commencement of work hereunder, Contractor shall prepare
and submit to Owner, for Owner's approval, a "Schedule of Values" furnishing a
complete, detailed and itemized breakdown of the various divisions of the work,
including values for materials and labor. The total of this cost breakdown shall
be equal to the Contract Price.
<PAGE>
PROGRESS PAYMENTS
(b) On or before the 26th day of each calendar month the Contractor shall
forward to the Owner, for its approval, a written statement showing the amount
due or to become due and including the last day of that calendar month. The
Contractor shall attach to each such application for payment, an acknowledgement
or payment to the date of the last advance, as well as a statement of any back
charges and credits to which the Owner is entitled, a sworn statement of any
claim for charges or extras due to the Contractor, such claim not to be valid
unless made at the time and in the manner aforesaid, a sworn statement setting
forth all amounts, if any, owed by Contractor to its subcontractors and
suppliers, and a Schedule of Values showing the percentages of the various
divisions of work completed, including values for materials and labor. All
requisitions shall be made on and in compliance with Owner's standard form of
Contractor's requisition and shall be subject to the terms thereof, Including
the submission of sworn statements from Contractor's subcontractors and vendors.
The Owner. on or about the final day of each calendar month, shall remit to the
Contractor 90% of the amount so requisitioned by the Contractor and as approved
by the Owner. In addition to the said retainage of 10%, the Owner shall also
retain a sum sufficient in its opinion, to complete the work in accordance with
the terms of this contract. Moreover, in each instance of requisition prior to
completion, the Contractor shall certify to the Owner that the cost of the work
remaining to be done under this contract does not exceed 90% of the balance of
the contract price unpaid. In no event will the Owner be required to pay in
excess of 90% of the contract price prior to the completion of all the work the
Contractor is obligated to perform under this contract.
WITHOLDING OWNER
(c) The Owner may withhold payment to the Contractor on account of (i) BY the
failure of the Contractor to comply fully with any requirements of this
contract, Including the failure of the Contractor to make payments to
subcontractors or for material or labor. (2) the failure of the Contractor to
prevent the filing of liens or claims to avoid the reasonable probability of the
filing of liens or claims against the Owner, the project or the Contractor, and
(3) damage to another contractor by reason of acts or failure to act of the
Contractor.
FINAL PAYMENT
(d) The balance owing to the Contractor under the terms of this contract shall
be due and payable within sixty (60) days after
(1) the completion of all work in this contract, Including patching and the
furnishing of missing material,
(2) acceptance thereof by the Owner, and
(3) receipt by the Owner of (A) all Contractor's "as built" drawings,
records and related data; (B) all guaranties and warranties to which the Owner
is entitled hereunder; (C) all permits, licenses, approvals, certificates and
'authorizations required by any authority having jurisdiction; (D) a general
release from the Contractor on the Owner's standard form in favor of the Owner,
Construction Manager and Owner's sureties, if any; and (E) satisfactory proof
that all claims, including taxes, growing out of tile work to be performed
hereunder and any liens growing out of the same which shall have been filed or
recorded, have been released.
TRUST FUNDS
36. Any and all funds payable to the Contractor hereunder are hereby
declared to constitute trust funds in the hands of the Contractor, to be applied
first to the payment of claims of subcontractors, architects, engineers,
surveyors, laborers and materialmen arising out of the described work, to claims
for utilities furnished and taxes imposed, and to the payment of premiums on
surety bonds and other bonds filed and premiums on insurance accruing during the
construction of the described work, before application to any other purpose.
Whenever required by the Owner, it shall be the duty of the Contractor to file
with the Owner a verified statement, in form satisfactory to the Owner,
certifying the amounts then due and owing from the Contractor for labor and
materials furnished under the terms of this contract, setting forth herein the
names of the persons whose charges or claims for labor, materials or supplies
are unpaid, and the amount due each respectively.
CHANGES AND EXTRAS
37. The Owner, without invalidating this contract. may order extra work or make
changes by altering, adding to or deducting from the work, the Contract Price to
be adjusted accordingly. The Contractor shall not make any alterations or omit
anything, or perform additional or extra work, except upon written order signed
by the Owner. The Owner shall at any time have the right to order extra work to
be performed on (a) Lump Sum Proposal, (b) Unit Prices, or (c) Time and Material
Basis. No request for payment for extra work will be honored unless accompanied
by such written order. All such work shall be executed under the provisions of
this Contract. The Owner's choice of the manner in which the extra work is to
proceed is described as follows:
(A) Lump Sum Proposal
The Contractor will within ten (10) days after receipt of the Owner's
communication submit his Lump Sum Proposal. This Proposal will be itemized
and segregated by labor and material for the various components of the
work. No aggregate labor total will be acceptable. The Contractor will
furnish with his Proposal
<PAGE>
supporting data consisting of Subcontractor's and vendor's signed proposals. The
Contractor will be allowed 15% for overhead and profit on labor performed by his
own forces and material purchases. Subcontractors, likewise, will be permitted
an allowance of 15% for overhead and profit on their own work. The Contractor
will be further allowed a 6% commission on all of his subcontractor's work, 6%
overhead and profit will be allowed on equipment rented by the Contractor or
subcontractor. The Contractor may include in his labor proposal only those
workmen and foremen directly involved in the work. All other supervision is
included in the 15% overhead and profit allowed. Contractor will be entitled to
payment for labor, union fringe benefits, insurance. unemployment insurance,
soda security and taxes paid on labor. No overhead or profit will be allowed on
social security, unemployment insurance or other insurances or premium time.
Contractor's material costs wilt include invoiced costs, transportation,
applicable sales or use taxes, actual rental costs or discounted local published
rental rates. Use o~ small tools is included in the Contractors's overhead and
profit. Overhead and profit as outlined above includes all other costs
whatsoever beyond those enumerated. if any of the extra work included in the
Lump Sum Proposal is covered by Contract Unit Prices, the Owner may elect to use
these unit prices within the Lump Sum Proposal. No overhead and profit may be
applied to these unit prices. The entire value of the change will be the net
difference of the work to which will be applied overhead and profit percentages.
(B) Unit Prices:
The Contractor will submit within ten (10) days after receipt of the Owner's
communication his written proposal itemizing the quantities of each item of work
for which there is an applicable Unit Price contained in the Contract. The
quantities must be itemized in relation to each specific contract drawing. Unit
prices will be applied to net differences of quantities of the same item.
(C) Time and Material:
Should the Owner elect to have any extra work performed on a time-and material
basis in lieu of Lump Sum Proposal or Unit Prices, and so notifies the
Contractor in writing, the Contractor shall perform such work at actual cost
(without any charge for administration, clerical expense, supervision or
superintendence of any nature whatever, including foremen, or the cost, use or
rental of tools or plant) plus 15 percent for overhead and profit. To this
figure the Contractor may add Unemployment Insurance and Old Age Retirement
Benefits taxes paid on labor required for the extra work. Moreover, if tile
Contractor procures the performance of extra work by others than its own
employees, the Contractor shall not be entitled to greater payment than that to
which it would have been entitled if it had itself furnished the labor and
materials required in connection with the work to be performed under this
provision. The Contractor will submit to the Owner daily time and material
tickets. These tickets will include the identification number assigned to this
work, the location and description of the work, the classification of labor
employed including workmens' names and social security numbers, the material
used, the equipment rented (not tools) and any other information ordered by the
Owner.
Where any such additional work is ordered as provided In this Contract, the
Contractor shall, for such purposes, permit the Owner to audit its books. The
Contractor shall produce any and all data which the Owner may request for the
purpose of determining the correctness of the changes. The Contractor shall keep
such full and detailed accounts as may be necessary to reflect its operations
with respect to such changes and extras, and the system adopted shall be such as
is satisfactory to the Owner. The Owner, Construction Manager, their agents and
employees, shall be afforded access at all reasonable times to the Contractor's,
Subcontractor's and Vendor's books, correspondence, instructions, receipts,
vouchers. memoranda and records of all kinds, relating to all work under this
Contract as well as to such changes and extras, and the Contractor shall
preserve the same for a period of six years after final payment hereunder. In
regard to the foregoing and generally, the Contractor hereby authorizes the
Owner and Construction Manager to check directly with its suppliers of labor and
materials the charges for such labor, materials and other items appearing in the
Contractor's bills rendered to the Owner, to confirm balances due and obtain
sworn statements and waivers of lien.
In the case of disagreement as to the amount to be paid or credited the
Contractor shall promptly comply with the order and payment to Contractor or
credit to the Owner shall be made in accordance with the contract payment
provisions up to the reasonable estimated value of the change as determined by
Owner.
Unless and until the Owner shall elect either the lump sum, the unit price
method or time and material, the Contractor shall maintain and submit daily
records of labor, material and equipment used in the work which have been
acknowledged thereon daily by the Construction Manager. In any event,
Construction Manager shall have the right to order such changes in the work to
proceed promptly prior to the submission of any proposal and/or Construction
Manager's election.
<PAGE>
Any work included in this contract shall be performed by the Contractor at no
extra cost to the Owner despite any order from the Owner to the Contractor which
might contemplate such work as an extra.
NO DELAY BY CONTRACTOR
38. Notwithstanding the fact that a dispute, controversy or question shall have
arisen in the interpretation of any provision of this contract the performance
of any work, the delivery of any material, the payment of any moneys to the
Contractor, or otherwise, the Contractor agrees that it will not directly or
indirectly stop or delay any work or part of its work on its part required to be
performed or stop or delay the delivery of any materials on its part required to
be furnished hereunder, pending the determination of such dispute or controversy
in a timely manner.
SCHEDULING
39. The scheduling of construction operations for the project will be monitored
by a method to be chosen by the Owner. The Contractor, and its subcontractors,
if required, shall furnish all scheduling information requested by the Owner at
such time and In such form and detail as requested for its particular trade.
Such information shall be furnished within 2 weeks of the request and shall
further be revised from time to time when requested either prior to and/or at
any time during performance of its work.
Information submitted by the Contractor or others, acceptance or approval by the
Owner and the scheduling that may be developed and Implemented by the Owner or
Construction Manager shall not constitute the basis of any claim by Contractor
or its subcontractors for damage or delay nor excuse the Contractor's
performance as required herein.
BILLS AND NOTICES
40. A bill, statement, notice or communication which one of the parties hereto
desires to serve upon the other shall be deemed sufficiently given and rendered
if sent by registered or certified mail, return receipt requested, addressed to
the other party at the address set forth herein. The time of the rendition of
such bill, statement, notice or communication shall be deemed to be the time
when the same was mailed and each day's notice shall be construed to mean a
period of twenty-four (24) hours from the time of mailing.
RIGHTS AND REMEDIES
41. All Rights and Remedies of Owner under this Contract shall be
cumulative and shall be In addition to all other Rights and Remedies of Owner
provided by law.
NO ORAL MODIFICATION
42. This contract constitutes the entire agreement between the parties. The
Contractor affirms and agrees and represents and warrants that only the
statements, representations and promises expressly contained In this Contract
have been relied upon by him and have induced him to enter into this Contract.
No provision of this contract shall be changed or modified, nor shall this
Contract be discharged, in whole or in part, except by an agreement in writing
signed by the party against whom the change, modification or discharge is
claimed or sought to be enforced, nor shall any waiver of any of the conditions
or provisions of this contract or of any of the rights of either of the parties
hereunder be effective or binding unless such waiver shall be in writing and
signed by the party claimed to have given, consented to or suffered the waiver.
In the eve rit any written change or modification is made as aforesaid, the
Owner's rights and remedies under this contract and under any bond given to the
Owner, in accordance with the requirements of this Contract, shall in no way be
prejudiced or impaired, and the bond shall apply and be in full force and effect
with respect to this contract as so changed and modified.
SAVING CLAUSE
43. If any of the provisions hereof shall contravene or be invalid under the
laws of the jurisdiction where it Is to be performed, such contravention or
invalidity shall not invalidate the whole contract or any other provision
thereof, but this contract shall be construed as if not containing the
provisions held to be invalid, and the rights and obligations of the parties
shall be enforced accordingly.
EQUAL OPPORTUNITY CLAUSE
44. In connection with the execution of this contract, the Contractor shall not
discriminate against any employee or applicant for employment because of race,
color, religion, sex or national origin. Contractor shall use best efforts to
hire both minority and female employees whenever qualified individuals apply for
employment. The Contractor shall take affirmative action to ensure that
applicants are employed, and that employees are treated during their employment
without regard to their race, color, religion, sex or national origin. Such
action shall include, but not be limited to the following: employment,
upgrading, demotion or transfer; recruitment or recruitment advertising; layoff
or termination; rates of pay or other forms of compensation; and selection for
training, including apprenticeship. In conjunction with this provision, the
Contractor shall conduct its business In accordance with all federal, state and
local laws and/or ordinances pertaining to programs concerning affirmative
action and equal opportunity.
EXCULPATION OF PARTNERS
45. No general or limited partner or shareholder of the Owner or other Owner or
other holder of any equity interest in the Owner shall be personally liable
<PAGE>
to this agreement or other holder of any equity interest In any such party shall
be personally liable for the performance of any such party's obligations under
this agreement. The liability of Owner for Owner's obligations under this
agreement shall be limited to Owner's interest in the Property, and the
Contractor shall not look to any of Owner's other assets seeking either to
enforce Owner's obligations under this agreement or to satisfy a judgment for
Owner's failure to perform such obligations. The Contractor will not enter into
any agreements with third parties without the inclusion of any exculpatory
clause similar to that set forth herein, limiting Owner's obligations to Owner's
obligations to Owner's interest in tile property.
MARGINAL NOTES
46. Marginal notes used in this contract are inserted only as a matter of
convenience and for reference, and they in no way define, limit or describe the
scope or intent of this contract, nor do they in any way affect this contract.
OWNER BENIFICIAL OCCUPANCY
47. If, before final acceptance the Owner desires to occupy the project or any
part thereof which is completed or partly completed, or to place or intall
therein certain equipment and furnishings; the Owner shall have the right to do
so and the Contractor shall in no way interfere with or object to such occupancy
by the Owner.
AFFIRMATIVE ACTION
48. The Construction Manager has a long standing practice of encouraging the
participation of Minority and Women owned firms in its business opportunities.
Accordingly, the contractor shall make every good faith effort to subcontract
with minority and women owned firms in the performance under this contract.
Additionally, the Construction Manager is an Equal Employment Opportunity
Employer and will expect all the contractors to secure Minorities and Women in
the workforce to the maximum extent possible. This policy shall be supplemented
by such specific goals and obligations imposed by governmental authorities
and/or as otherwise specified in the Contract documents.
LABOR AND MATERIALS TO BE FURNISHED BY CONTRACTOR
All labor, materials, equipment, tools, appliances, services, delivery,
hoisting, scaffolding, permits, testing. engineering. layout, supervision,
coordination and all other operations required for the complete performance of
all specified and related work stated herein, in accordance with the Contract
Drawings, Specifications, Riders and other Contract Documents listed or
referenced herein, all of which become part of this Contract.
CONTRACT PRICE
This Contractor shall perform all work set forth herein for the contract price
of THREE MILUON NINE HUNDRED AND SEVEN THOUSAND SEVEN HUNDRED FIFTY DOLLARS
($3,907,750.00) including all applicable taxes, overhead and profit.
CONTRACT DOCUMENTS
Rider "A", General Addendum, dated May23, 1996 Rider "B", List of Drawings and
Specifications, dated May 9, i996 Rider "C", Alternates and Unit Prices, dated
March 25,1996 Rider "D", Industrial and Commercial Incentive Program, dated
March 20,1996 Insurance Rider - dated December 5,1995
TIME OF PERFORMANCE
This Contractor represents that he has sufficient manpower, equipment and
materials available to expedite all phases of his work schedule. Work in any
area shall commence upon 48 hours notice from the Construction Manager. Work
shall proceed in sequence and direction as required by the Construction Manager
and as provided for in the Time and Performance Section of Rider "A".
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly
executed as of the day and year first above written.
OWNER: STARRE REALTY
ACCEPTED:
<PAGE>
U.S, BRIDGE OF NEW YORK, INC.
BY:
AGENT: Tishman Construction Corporation of New York
(construction manager)
BY:
William Stanton, vice President
<PAGE>
RIDER "A"
GENERAL ADDENDUM
LOUIS VUITTON NA. OFFICE TOWER
EAST 57TH STREET
NEW YORK, NEW YORK
May 23,1996
TRADE: STRUCTURAL STEEL/METAL DECK
Notwithstanding anything In the other Contract Documents to the contrary, all
provisions of this addendum shall supercede any conflicting provisions of other
Documents. All other provisions of the Contract shall remain In full force and
effect.
A. GENERAL CONDITIONS
1. The Contractor represents that he Is familiar with, and has expertise
In the work of this Scope. The Contractor further agrees that he will
provide all work for the Scope as may be required to make a complete job
of that which may not be fully defined In the Contract Documents.
2. It is understood that all work of the Contractor shall be In strict
accordance with the Building Code of the City of New York and any rules
and regulations of the Building Department of the City of New York and
any other government agencies having jurisdiction. Where there is any
conflict in any provisions, the most stringent shall apply.
3. The Contractor shall comply with all of the legal regulations,
including OSHA safety regulations and regulations of municipal. city,
local, and other government agencies having jurisdiction concerning the
work of this Contractor. The Contractor shall give all notices and
comply with all laws, ordinances, codes, rules and regulations bearing
on the conduct of the work. If the Contractor performs any work which
is contrary to such laws, ordinances, codes, rules, and regulations, he
shall make all changes to comply therewith and bear all costs arising
therefrom.
4. All work on this Project will be subject to New York City Equal
Employment Opportunity regulations. The Contractor shall comply with
the Affirmative Action Plan embodying the requirements of the city and
other governing agencies.
5. The Contractor shall be fully responsible for all field measurements
and layout of his work. Axis lines and bench marks will be established
by the Construction Manager at grade only. All subsequent layouts shall
be performed by the Contractor who shall solely be responsible to
maintain the line and grade required.
6. The Contractor shall provide and pay for, place, relocate and remove
any and all of his required office trailer(s) or shanties when and
where directed. Structures shall be of fire resistant materials. It is
understood that the Contractor is responsible for acquisition,
maintenance, and subsequent removal of all utility and telephone
services required for his office trailer(s). The Contractor will be
responsible to provide and maintain his own storage rooms, including
protection and security. Each structure this Contractor maintains must
contain an appropriate number of automatic fire extinguishers as
manufactured by AD-X CORP., PEMALL or BUCKEYE FIRE EQUIPMENT CO. The
use of shanties and/or office may not be possible for this Project and
will only be allowed upon approval of Construction Manager.
7. Cost of Master Mechanic, if required, will be prorated between all
contractors on the job at the time who require or contribute to the
requirement of the service of such Master Mechanic. The Master Mechanic
will be employed by the contractor having the most Operating Engineers
on the job or, if an equal number of engineers are employed by more
than one (1) contractor, by the last contractor on the job whose
operations require such an employee. 100% of overtime cost for the
master mechanic will be charged to Contractor causing such cost to be
incurred. Cost of the teamster foreman during regular working hours
will be by Owner. Overtime costs caused by this Contractors deliveries,
unloading, operations etc., will be charged to this Contractor.
8. Temporary light, power and water will be provided during normal
working hours at no cost to the Contractor. Should the Contractor work
prior to or later than normal working hours or on Saturdays, Sundays,
or Holidays, he shall pay all costs including the cost of standby
trades, provided such overtime is required due to the Contractor's
failure to maintain schedule.
9. The Contractor has examined the site and the Contract Documents and
reviewed with the Construction Manager the designated areas of access,
delivery, and storage for the Contractor's use. He agrees that such
areas are satisfactory and sufficient for his needs in the prosecution
of his work In conformance with the terms of this Contract. Any changes
in such areas shall not be permitted without the approval of the
Construction Manager, which if approved, shall be at no additional cost
to the Owner.
10. The Contractor shall at his own expense collect and dispose of his
debris in a trash container located at grade level In a location
designated by the Construction Manager. Trash container will be
furnished and unloaded by others. Hoist costs will not be charged for
debris removal.
<PAGE>
RIDER "A"
GENERAL ADDENDUM
LOUIS VUITTON NA. OFFICE TOWER
EAST 57TH STREET
NEW YORK. NEW YORK
TRADE: STRUCTURAL STEEL/METAL DECK
A. GENERAL CONDITIONS - continued
11. The Contractor is aware that unless Included as part of the Scope of
this Contract, perimeter and/or Interior protection will be In place by
others, Including netting toeguards and cables or railings. The
Contractor shall remove same If required for Installation of his work
and shall replace such protection or provide a suitable substitute In
accordance with OSHA or other jurisdictional requirements, when he is
not working in the area.
12. All hoisting and hoisting requirements are the Contractor's
responsibility. Should the Contractor use the Construction Manager's
material hoist, he will be charged a rental of $300.00/hour straight or
overtime. Use of hoist shall be scheduled by the Construction Manager.
13. Any temporary openings required for subsequent installation of
Contractor's work must be brought to the attention of the Construction
Manager prior to completion of the pertinent work in the area of the
opening needed. Failure to request access will result in the Contractor
assuming all costs involved in providing, rebuilding and refinishing the
required access.
14. The Contractor must take special care in stocking his material on
floors to allow other trades free access to their work and not to overload the
slabs.
15. The Contractor shall comply with all federal and local laws regarding
noise control. Mufflers, whisperized compressors, and other noise
abatement and protection devices shall be used throughout the
Contractor's work.
16. The Contractor will provide protection necessary to safeguard his own
work, as well as the work of other trades, from damage by his own operations.
17. The Contractor will visit and carefully examine the premises upon
which the building is being erected and familiarize himself with the
existing conditions and difficulties that may affect the execution of his
work. The Contractor is aware that his work is being performed adjacent to
existing buildings that are in service. The Contractor agrees that he will
take all necessary steps to avoid damages to the existing construction.
Any damages caused by this Contractor will be repaired by the Contractor
at no additional cost to the Owner. The Contractor is cautioned that due
to the location of this Job he may encounter certain areas of special
coordination involving traffic congestion, building access, material
delivery, etc. It is understood that the Contractor is aware of these
conditions and the Contractor will not attempt to seek additional monies
for hardships that may arise due to his having to take special measures
and precautions regarding same.
18. It may be necessary for this Contractor to leave openings in his work
or omit portions of work temporarily in order that other trades can
perform their work. It is understood that the work of filling in openings
or completing such undone portions of the work may be required to be
performed at different times and intervals including those alter the
Contractor has completed his primary work. All of the foregoing shall be
done within the Contract Price.
19. Should any questions of union jurisdiction arise, the Contractor shall
immediately take steps to settle such disputes and will use such labor as
may be determined to have jurisdiction, at no additional cost to the
Owner. Should he fail to take expeditious action, he will be responsible
for any time lost because of delays arising from such a dispute.
20. All permits except the actual building permit required for any part of
the Contractor's work shall be procured and paid for by the Contractor.
This shall also apply to those permits required to be obtained in the name
of the Owner.
21. The Contractor shall note that Insurance requirements are stated in
the Insurance Rider attached hereto and made part of this contract.
22. The Contractor shall direct his field foreman to submit complete Daily
Reports covering his work on a daily basis. These reports shall include
the names of Contractor's personnel on the jobsite, description of work
engaged In, major equipment deliveries, accidents, visitors to the site,
subcontractor manpower information, overtime, and any other information
requested by the Construction Manager.
23. The Owner reserves the right to prohibit Contractor his Subcontractor,
suppliers, etc. from using the Site, the Project name or their affiliation
with Owner, for publicity or advertisement of any kind whatsoever.
24.There shall be no extensions of time permitted or extras or costs in
any manner paid by the Owner or Construction Manager for walk-up time that
may be incurred as a result of lilt or vertical transportation breakdown.
The Contractor and its employees must continue to work and walk to the
place of the work,
<PAGE>
RIDER "A"
GENERAL ADDENDUM
LOUIS VUITTON NA OFFICE TOWER
EAST 57TH STREET
NEW YORK. NEW YORK
TRADE: STRUCTURAL STEEL/METAL DECK
A. GENERAL CONDITIONS - continued
if necessary, during any lift or vertical breakdown1 it being
acknowledged that such breakdowns occur from time to time on all construction
sites.
25. A Certificate of Capital Improvement has been issued for this
project. Contractor hereby acknowledges that the Contract amount stated
herein, has been based on the appropriate rules and regulations as it
pertains to Sales Tax requirements.
28. Manufacturers, suppliers, vendors, Contractors, or subcontractors
are required to comply with the OSHA Hazard Communication Standard 29
CFR 1910.1200 and 29 CFR 1926.59 and supply TISHMAN with the appropriate
Material Safety Data Sheet, including updates, at the time of Initial
shipment of the hazardous material to the project.
27. The Contractor is aware of Site Safety Plan required by the Building
Department, and of the requirements of said Plan and shall comply fully
with said Plan and cooperate with Site Safety Manager. He shall include
all costs associated with Site Safety Program by supplying all necessary
protection, flagman, etc.
B. SPECIAL CONDITIONS
1. Contractor understands that this Contract will be subject to the
requirements of Executive Order No.50 (April 25,1980) as amended by
Executive Orders 94 (June 20,1986) and 108 (December 29,1986) and the
Industrial and Commercial Incentive Program (I.C.I.P.), and that he must
comply with all of the rules and regulations of said Executive Orders
and the I.C.I.P. as described in the documents to be attached to and
made part of the contract documents.
This Contract is dependent upon Contractor being approved by the
Division of Labor Services (DLS) in accordance with the I.C.I.P. and
Executive Order No.50 and Executive Orders No.94 and No.108.
Contractor is to submit all paperwork as required by I.C.I.P. and the
Executive Orders No.50, No.94 and No.108 on a weekly basis. Payment will
not be made until all paperwork is submitted correctly.
2. The Contractor is aware of the requirements of the Department of
Transportation Bureau of Traffic regulations regarding restricted
vehicle lengths and times of operation in the geographical area in which
the project Is situated. The Contractor agrees that there shall be no
additional costs to the Owner as a result of these restrictions.
3. For purposes of complying with the requirements of the Building Code
of the City of New York, which calls for a Certificate of On-Site
Inspection, the Contractor shall furnish to the Construction Manager
information on the position of cranes, derricks, guy lines, etc., along
with pertinent loads from the operation of such equipment certified as
to accuracy and location by a Professional Engineer licensed to practice
in the State of New York. engaged by the Contractor. The Contractor is
aware of the structural capacities of areas to be used for its'
equipment and material storage and shall not exceed rated capacities
without taking appropriate steps to compensate for the imposition of any
construction loads which may exceed the design criteria of the new and
existing structure or the capacity of the existing roadways, sidewalks
and curbs. Any modification, temporary or permanent, to the building
structure required to support the Contractor's equipment including
foundations for tower cranes shall be made by the Contractor and
reviewed by the Engineer of Record. The Contractor shall furnish, place
and remove any temporary bracing required to stabilize the existing and
new structure due solely to his work. All costs associated with the
above requirements are included in the Contract Price.
4. All of the Contractor's work, both shop and field, shall be tested
and inspected by a testing agency in accordance with the
Specifications. Such testing agency shall be selected by the
Construction Manager and all compensation for the testing agency shall
be borne by the Construction Manager. The Contractor shall cooperate
fully with the personnel of such testing agency and the Contractor
shall provide at no additional cost to the Construction Manager,
manpower, drawings, facilities, scaffolds, properly calibrated torque
wrenches, etc., to reasonably assist the testing agency personnel in
their execution of their testing and inspection of welding, high
strength bolts, etc., in shop or on site. It shall be the
responsibility of this Contractor to notify the Construction Manager
prior to commencement of the Contractor's work. The Contractor shall
not perform any work unless such testing agency personnel are present,
and said testing agency personnel shall not impede this Contractor's
work.
5. The Contractor agrees that at the conclusion of his operations at
the project site, he will remove his hoisting equipment by lowering
such equipment down the side of the building, including hoist engines.
The Construction Manager will not allow openings to remain in the upper
floors to permit lowering of such equipment within the confines of the
building.
<PAGE>
RIDER "A"
GENERAL ADDENDUM
LOUIS VUITTON NA. OFFICE TOWER
EAST 57TH STREET
NEW YORK. NEW YORK
TRADE: STRUCTURAL STEEL/METAL DECK
B.SPECIAL CONDITIONS - continued
6.The Contractor shall place his hoisting equipment in locations approved
by Construction Manager. Any separate hoist engines shall be relocated
not more than once as the project progresses if required by the
Construction Manager so as to avoid Interference with work of other
Contractors.
7.Contractor Is aware that his work is being performed adjacent to
existing buildings and shall take all necessary steps to avoid damage to
the existing construction and surrounding buildings and streets. Any
damage caused by Contractor is to be repaired by Contractor at no
additional cost to Owner.
8.This Contractor shall cooperate, as directed by the Construction
Manager1 with other Contractors that shall be commencing operations on
the site prior to this Contractor's completion and demobilization. These
other Contractor's Include, but are not limited to concrete, curtain
wall, utilities, foundation and elevator.
9.No material shall be stored outside of the construction fence without
Construction Manager's approval. Special precautions shall be taken to
provide adequate housekeeping of site Including but not limited to
sweeping of sidewalks and removal of debris, caused by contractors work,
from the adjoining streets daily, or more often if needed.
10. Should the Contractor propose any design changes that might save in
fabrication or erection time or costs, he shall submit his proposal,
drawings, calculations, etc., for approval by the Construction Manager
and Engineer of Record. This Contractor will assume all costs for
reimbursing the Engineer of Record. This Contractor will assume all
costs for reimbursing the engineer of Record for all fees incurred as a
result of said changes.
11. The Contractor will relocate power generations equipment as directed
by the Construction Manager to Insure orderly progress of the following trades.
12. The Contractor is aware of the attached Contract Form. Proposed
revisions to this Form will not be entertained without submission of a
written request with the Contractor's Bid Proposal.
13. Contractors logistics and delivery plans must be in conformance with
the Construction Manager's requirements as approved by their Mayor's
Traffic and Construction Coordination Council.
C. SCOPE OF WORK
Without restricting the generality of work which shall be performed within the
Contract Price, it is clearly understood and agreed that the Contractor shall
provide all material, labor, trucking, hoisting, engineering, scaffolding, power
hookups, protection, shop drawings, taxes, permits, layout, equipment,
supervision, insurance, etc., necessary for the furnishing and installation of
all specified and related work contained herein in accordance with the Contract
Drawings, Specifications, Addenda and Riders, all of which become part of this
Contract.
The Scope of Work shall Include, but not be limited to, all the work in the
following Specification Section(s), except such work as may be specifically
excluded In Paragraph "D" "WORK NOT IN CONTRACT".
Specification Section - 05120 - Structural Steel dated 3112196
- 05300 - Metal Decking dated 3112196
This Contractor shall be responsible for examining all of the Documents listed
on the "List of Drawings and Specifications" and all items related to this
Contractor's work, and called for In these Documents, shall be included in this
Contract.
In addition to the above Specifications, this Contractor's work will include,
but not be limited to the following items, clarifications and/or modifications:
STRUCTURAL STEEL
1. This Contractor shall furnish beam bearing plates, wall connection
plates, elevator tie down beams and 3 elevator hoist beams 8WF 40 and anchor
bolts, as shown in the Contract Documents, complete with setting plans and any
templates required for others to install.
<PAGE>
RIDER "A"
GENERAL ADDENDUM
LOUIS VUITTON NA. OFFICE TOWER
EAST 57TH STREET
NEW YORK. NEW YORK
TRADE: STRUCTURAL STEEL/METAL DECK
C. SCOPE OF WORK - continued
<PAGE>
The Contractor understands and agrees that beam bearing plates and wall
plates and anchor bolts will be required at the site prior to his
beginning erection and will be set by the Foundation Contractor. This
Contractor Snail survey the location of all beam bearing plates and
anchor bolts sufficiently In advance of erection so that required
corrective work can be accomplished by others without delaying erection.
The Contractor shall also Immediately review the anchor bolt setting
plan prepared by others and advise the Construction Manager of any
discrepancy with the Contract Documents. These items will be shop
painted as specified.
2. The Contractor shall furnish and install all other items shown and
specified Including, but not limited to:
a. All shear stud connectors.
b. All steel members, connection material and reinforcement material
connected to steel. c. All deck supporting angles as shown and
required to support the deck around structural members.
d. Plate material for attachment of rebar to steel members. This
Contractor shall furnish and install female threaded rebar
couplers at all locations where rebar is shown welded to steel.
3.Contract includes the furnishing and Installation of perimeter safety
cable with turnbuckles as required in accordance with OSHA requirements
and per requirements of all other governmental agencies having
jurisdiction. Perimeter cables around each floor shall be broken up Into
segments as directed by the Construction Manager. Where no columns exist
such as at the roof, and Interior shafts, this Contractor will provide
supports for the cables. The maintenance of same is Included on working
floors only. Others will maintain after this Contractor has completed
his work on each floor. Removal of cables shall be by others. Alter
removal of cables, they shall become the properly of the Contractor if
he removes them from the project site when directed by the Construction
Manager.
4. The Contractor shall, as directed by the Construction Manager, omit
the erection of designated members and/or metal deck as necessary for
temporary holes, shafts, hoists, etc., for operations of other
Contractors. The members are to be stored In approved off-site locations
until the Construction Manager requires their installation. There shall
be no claims for additional costs for the installation of these omitted
members, if such installation takes place while the Contractor's main
equipment and manpower is still on the job site.
5. The Construction Manager shall furnish at no cost to the Contractor
facilities for hoisting of the Contractor's personnel to a level of not
more than ten (10) floors below the working level. The Construction
Manager accepts no responsibility for any costs the Contractor incurs
due to breakdowns of the personnel hoisting facilities.
6. Hoisting of stairs, elevator machinery and mechanical equipment, is
included as an allowance Contract Price and Schedule in accordance with the
following:
a. 34 for MEP of which 8-10 will be at roof level.
b. 6 for Elevator Contractor, plus elevator rail supports.
c. All metal stairs.
Allowance for this work is $70.000 unused portion will be credited back
to Owner.
7. This Contract Includes the furnishing of holes of a diameter not to
exceed the diameter of the holes for the Contractor's structural bolts,
for other trades, provided that Information for Location and quantity
of such holes is furnished to the Contractor prior to final approval of
the Contractor's shop drawings.
8. Included in Contract Price as an allowance, are the following
additional openings not currently required by the contract drawings and
specifications; unused portion will be credited back to Owner.
a. 50 penetrations up to 6"
b. 50 - 8" x 24" penetrations - reinforced.
Allowance for this work is $5,000.00 and $25,000.00 respectively.
9. Contractor will provide as part of the Contract Price both reinforced and
non-reinforced holes in the structural steel as shown in the Contract
Drawings and as itemized in C.8 above.
10. Steel erection will be performed by a mutually agreed upon steel
erector.
<PAGE>
RIDER "A"
GENERAL ADDENDUM
LOUIS VUITTON NA OFFICE TOWER
EAST 57TH STREET
NEW YORK. NEW YORK
TRADE: STRUCTURAL STEEL/METAL DECK
C. SCOPE OF WORK - continued
11. This Contractor shall design, submit drawings for, furnish and install
any temporary connections, shoring and/or bracing, as required, to
accommodate any erection stresses or loads and/or provide lateral bracing as
necessary to resist displacements, during the erection process.
12. This Contractor shall furnish and Install the following elevator
steel connecting to steel, In addition to elevator items noted
elsewhere:
a. Elevator hoist beams, elevator separator beams.
b. Elevator rail support steel as required between floor levels
at all extra height floors, for all elevator rails.
13. The Structural Steel frame shall be erected true and plumb and
within the tolerances called for In the AISC Code of Standard Practice.
The Contractor will install all necessary guy wires and/or bracing for
plumbing the structural steel frame, maintaining such plumbness and
stabilizing the structural steel frame due to loads Imposed by the
Contractor's equipment. This Contractor shall position sleeves in the
work of the Metal Deck to protect said temporary guy wires and/or
bracing and permit their subsequent removal, after placing concrete. It
is agreed that such sleeves shall be of sufficient size for guy wires
and/or bracing only and shall not provide for accessories and
connections.
14. It is agreed by this Contractor that he will commence his work at the
jobsite prior to the full completion of the work of the Foundation
Contractor and will cooperate with the Construction Manager In every way,
In order that the work of the Foundation Contractor and all other
Contractors may be prosecuted efficiently in every way.
15. Shop painting of steel shall be as specified. All exposed steel shall
be galvanized as specified.
16. All dunnage steel and steel required for the support of water tanks,
cooling towers, window washer tracks and pedestals, etc., as Indicated.
17. There will be no ramp into the cellar and the perimeter foundation
walls will not be backfilled. This Contractor understands and agrees that
all erection out of the cellar will be accomplished by utilizing a mutually
agreed upon method with the Construction Manager, and can not be done from
the street. Should it be determined that the Contractor will place a crane
along the sidewalk and/or above the foundation walls he shall provide all
vault and/or foundation wall bracing, piers, piles, footings, bridging,
etc., to accommodate any platforms, crane loads, timber mats, etc., used
for his work with the costs for same included in the Contract Price.
This Contract includes the temporary shoring of all existing and new
concrete foundation walls if required for this Contractor's work.
18. Connections: The Contractor shall accept full responsibility for the
design of all connections as required to resist the loads and reactions
shown on the contract drawings and as specified, except for those
completely designed and detailed on the Contract Documents. The Contractor
shall certify that the detailing of all connections has been done under the
supervision of a Registered Professional Engineer whose name and
registration shall appear in the affidavit. Signed and sealed calculations
must be submitted to the Engineer of Record for review. Shop connections
not indicated on the Structural Drawings shall be prepared by fabricator
and submitted to the Engineer of Record for review. Where connections are
Indicated In the Structural Drawings, no deviation from the approved type
and method thereof shall be made without the approval of the Engineer.
19. Contractor to survey structure as erection is proceeding and submit
same to Construction Manager for each tier.
20. Also included In Contract price are the following:
a. 18 weeks of a master mechanic (50% of the time). ($30,000.00 Allowance)
b. Cost of a master mechanic, full time, during the climbing of derrick
and/or crane.
c. 15 tons of structural steel in addition to that shown on Contract
Drawings. Tonnage consists of approximately ten (10) added pieces including all
connections and added weight to structural members now shown on Contract
Drawings.
d. 100% Performance and Payment Bonds from a Surety listed In the current
federal register.
e. At "Magic Room", four (4) corner posts 20 feet high i plus four (4) ten
foot horizontal beams, not currently shown on Contract Drawings.
Unused portion of allowances will be credited back to Owner.
<PAGE>
RIDER "A"
GENERAL ADDENDUM
LOUIS VUITTON NA. OFFICE TOWER
EAST 57TH STREET
NEW YORK. NEW YORK
TRADE: STRUCTURAL STEEL/METAL DECK
C. SCOPE OF WORK - continued
METALDECK
<PAGE>
1. It is agreed that this Contractor will schedule metal deck erection
In a manner that eliminates the use of wood safety planking. However.
this Contractor will Install planking over permanent shaft openings such
as elevators1 stairs, etc., until such time as cable protection can be
Installed by this Contractor. Should the nature of this project dictate
any other safety measures1 as required by any governmental agency having
jurisdiction or standard union requirements for this Contractor1s work
only, this Contractor will provide such safety measures without any
claims for additional cost.
2. This Contractor shall hoist, supply and erect the metal deck and
perform all other work required for a complete metal deck installation
ready for concrete. Layout for openings, closures, stops, etc., shall be
from axis lines provided by this Contractor at each floor. It Is
understood that all metal deck shall be COMPOSITE NON-CELLULAR metal
deck. Deck system shall be in accordance with New York City BSA
Requirements, supplied without hangar tabs, as specified. This shall
include but not be limited to the following:
a. Furnish. install and weld all metal deck in accordance with the Contract
Documents. Deck shall be field cut, as required.
b. Temporarily secure all material when placed and/or stored on all floors.
c. Omit areas required for temporary construction openings or access and
cover over such areas when directed, at no additional cost to the Construction
Manager.
d. Furnish and install all closures and stops, including toe guards and
reinforcing material for openings in metal deck. Such items will be properly
secured and correctly located so as not to Interfere 'with the work of other
trades. Coping of such items around inserts, anchors, columns, at skewed beams
and girders, etc., as required for this Contractor's installation is included in
the Contract Price.
3. Furnish and install reinforcing material and accessories to
accommodate all unframed Metal Deck openings shown in the Structural Drawings.
Reinforcement for additional openings shall be provided according t
the Unit Price in Rider "C".
4. Contract includes the delivery of the metal deck and accessories to
the jobsite, properly packed, for this Contractor's Installation.
Contractor shall closely coordinate packaging and delivery of deck with
steel erection, to achieve completely installed and welded decks (ready
for concrete) immediately following the installation of Structural Steel
Members.
5. Contractor guarantees that all deck furnished under this Contract
shall not be altered in any way that would affect the fire rating
provided by the type and thickness of spray fireproofing and reinforced
concrete indicated. Should the deck deviate from the Contract
Requirements and the combination of deck, concrete and spray
fireproofing no longer complies with the New York City Building Code,
this Contractor shall pay all costs involved in affecting remedial
measures. Contractor shall furnish metal deck which will not have any
deleterious matter, such as excessive oil, dust, etc., that will
adversely affect the adhesion of the spray on fireproofing or the
concrete to be placed on the deck.
6. The Contractor shall furnish, and install closure strips at all
locations requiring such closures to allow the complete 'installation
of deck ready for concrete. The Contractor shall furnish, deliver and
Install closure angles at the perimeter of the building, and at all
interior openings as required. Such closures strips and closure angles
shall function as concrete forms and be sufficiently rigid to
adequately support men, material and equipment prior to and during the
placing of concrete without additional reinforcement. Such closure
strips and closure angles shall not deform during placing of concrete
and shall also be sufficiently tight to prevent leakage of concrete.
Edge stops at the perimeter shall be made high enough to provide a toe
guard after concrete has been poured in accordance with the
requirements of OSHA or other governmental agencies having
jurisdiction. On floors where additional thickness of concrete is
required as shown on Contract Drawings such closure angles shall be
supplied to suit additional thickness and provide for toe guard above
the concrete at exterior perimeter where required, only. Erection of
these items shall be coordinated so as to ensure said requirements.
7. This Contractor shall engineer all decking in a manner which
minimizes the need for field cutting of the deck. The metal deck shall
be fabricated so that longitudinal cutting, and cutting at butt joints,
will not he required to achieve installation. In areas requiring the
deck to be skew cut, the Contractor will provide the deck in varying
lengths to minimize field cutting and handling of deck.
<PAGE>
RIDER "A"
GENERAL ADDENDUM
LOUIS VUITTON NA OFFICE TOWER
EAST 57TH STREET
NEW YORK, NEW YORK
TRADE: STRUCTURAL STEEL/METAL DECK
C. SCOPE OF WORK - continued
<PAGE>
8. This Contractor shell provide layout drawings for the Installation of
the metal deck, shear studs and accessories.
9. The Contractor shall submit calculations demonstrating the ability of
the metal deck to carry the design loads within the stress, deflection
and span limitations specified. Shoring of deck will not he permitted
unless specifically noted in the Structural Drawings.
10. The Contractor agrees that the deck can function as planking for
other trades. It is understood, however, that any material storage end
buggy traffic will be on runs furnished by others end supported over
structural members.
11. Closure plates end cell closures included throughout building at all
areas as shown and detailed except at Sections 1 end 2 of Drawing 5601
which will have supports furnished by Others however, cell closures
shall be furnished at Sections 1 & 2 of S~01'.
D. WORK NOT IN CONTRACT
1.Touch-up and field paint
2. Miscellaneous iron.
3.Anchors, sleeves, bolts and inserts for other trades.
4.Mullions and supports at "Magic Room".
5.Rebar couplers.
6. Welding of reinforcing steel to structural members.
7.Sheave beams.
8. Setting and grouting of beams bearing plates and setting of anchors
bolts and wall connection plates.
9. Grouting of column base plates.
10. Filling of beam pockets with masonry or grout.
11. Protection of roofs of adjacent buildings.
E. TIME OF PERFORMANCE
This Contractor shall immediately expedite the submission of shop drawings and
ordering of materials and equipment so that work of this Contract shall be
Installed in sufficient time to comply with the Project Construction Schedule.
This Contractor agrees that the following specific scheduling intervals shall be
maintained by him and coordinated 'with other trades provided that the work of
others has advanced sufficiently to permit the sequencing as called for:
1. Work under this Contract shall commence Immediately upon receipt of
instructions from the Construction Manager and shall proceed when and
where directed, with sufficient labor and material, to allow the entire
Project to be completed in accordance with the Project Construction
Schedule. The work under this Contract shall be coordinated with the
work of other trades in order not to delay the progress of the job. The
Contractor shall follow all interim schedules that may be issued by the
Construction Manager as the job conditions require.
2. A schedule for all drawings, schedules, literature, samples,
certifications, etc., as required by the Specifications shall be
completed and submitted for approval within two (2) weeks of Contract
award.
3. All sample submissions required by the Specifications shall he
submitted at the same time as submission of the schedule and literature
indicating such material.
4. Shop drawings shall be submitted in a uniform flow as drawings for
each area of the building are completed, and not accumulated for a
single submission.
<PAGE>
RIDER "A"
GENERAL ADDENDUM
LOUIS VUITTON N.A. OFFICE TOWER
EAST 57TH STREET
NEW YORK, NEW YORK
TRADE: STRUCTURAL STEELIMETAL DECK
E. TIME OF PERFORMANCE - continued
5. The Contractor understands that work of this trade may not be
continuous and that he may be required to work out of sequence at the
direction of the Construction Manager. There shall be no charges for
"comeback time" or out of sequence work.
6. The Contractor shall be prepared to commence his work during the 3rd
quarter of 1996 or as directed by Construction Manager provided that the
work of others has advanced sufficiently to permit such a start and
shall be capable of completing his work by February 28, 1997, including
removal of all hoisting equipment and cleanup.
7. The following milestones shall apply to the performance of this
Contractor's work:
a. Start of steel erection in field August 16. 1996.
b. Substantial completion of field work by February 14. 1997.
<PAGE>
RIDER "B"
UST OF DRAWINGS AND SPECIFICATIONS
LOUIS VUITTON NA. OFFICE TOWER
EAST 57TH STREET
NEW YORK. NEW YORK
May 9,1996
<TABLE>
<CAPTION>
Drawing No. Description Date
ARCHITECTURAL DRAWINGS
<S> <C> <C>
Cover Sheet 4/26/96
A0.01 Drawing List 4/26/96
A0.02 General Notes 4/26/96
A0.03 Information Sheet 4/26/96
A2.01 Floor Plans - Sub-cellar and Cellar Plan (Levels 0-00) 4/26/96
A2.02 Floor Plans - Level 1-2 4/26/96
A2.03 Floor Plans - Level 3-4 4/26/96
A2.04 Floor Plans - Level 5-6 4/26/96
A2.05 Floor Plans - Level 7-8 4/26/96
A2.06 Floor Plans - Level 9-10 4/26/96
A2.07 Floor Plans - Level 11-12 4/26/96
A2.08 Floor Plans - Level 13-14 4/26/96
A2.09 Floor Plans - Level 15-16 4/26/96
A2.10 Floor Plans - Level 17-18 4/26/96
A2.11 Floor Plans - Level 19-20 4/26/96
A2.12 Floor Plans - Level 21-22 4/26/96
A2.13 Floor Plans - Level 23-23A 4/26/96
A2.14 Floor Plans - Roof & Geometric Layout 4/26/96
A3.01 Building Elevation - South & West 4/26/96
A3.02 Building Elevation - North & East 4/26/96
A3.03 Void
A3.04 Building Section 4/26/96
A3.05 Building Sections 4/26/96
A3.06 Building Section 4/26/96
A3.21 Wall Sections 4/26/96
A3.22 Wall Sections 4/26/96
A3.23 Wall Sections 4/26/96
A3.24 Wall Sections 4/26/96
A3.25 Wall Sections 4/26/96
A3.26 Wall Sections 4/26/96
A4.01 Enlarged Stair Plans 4/26/96
A4.02 Enlarged Stair Plans 4/26/96
A4.03 Enlarged Stair Plans 4/26/96
A4.04 Enlarged Stair Plans 4/26/96
A4.05 Enlarged Stair Plans 4/26/96
A4.06 Enlarged Stair Plans 4/26/96
A4.07 Enlarged Stair Plans 4/26/96
A4.08 Enlarged Stair Plans 4/26/96
A4.21 Enlarged Stair Sections 4/26/96
A4.22 Enlarged Stair Sections 4/26/96
A4.23 Enlarged Stair Sections 4/26/96
A4.31 Stair Details 4/26/96
A4.32 Stair Details 4/26/96
A4.33 Stair Details 4/26/96
A5.01 Interior Elevations 4/26/96
A5.02 Interior Elevations 4/26/96
A5.03 Interior Elevations 4/26/96
<PAGE>
A6.02 Reflected Ceiling Plans Level 1 4/26/96
A6.12 Reflected Ceiling Plans Level 22 4/26/96
A6.13 Reflected Ceiling Plans Level 23A 4/26/96
A7.01 South Elevation/Glass Types/Ceramic Frit Pattern Types 4/26/96
A7.02 East Elevation/Glass Types/Ceramic Frit Pattern Types 4/26/96
A7.03 North Elevation/Glass Types/Ceramic Frit Pattern Types 4/26/96
A7.04 West Elevation/Glass Types/Ceramic Frit Pattern Types 4/26/96
A7.04A Partial Elevation Ceramic Frit Pattern "A" 4/26/96
A7.05 Plan/Section/Elevation @ Southwest Corner Floors 3-9 4/26/96
A7.06 Plan/Section/Elevation @ South Facade 4/26/96
A7.07 Plan/Section/Elevation @ Southeast Corner Floor 4 4/26/96
</TABLE>
<PAGE>
2 of6
RIDER "B"
LIST OF DRAWINGS AND SPECIFICATIONS
LOUIS VUITTON N.A. OFFICE TOWER
EAST 57TH STREET
NEW YORK, NEW YORK
<TABLE>
<CAPTION>
Drawing No. Description Date
ARCHITECTURAL DRAWINGS - continued
<S> <C> <C>
A7.08 Plan/Section/Elevation @ Southwest Comer Floors 11-22 4/26/96
A7.09 Plan/Section/Elevation @ Southeast Corner Floors 11-22 4/26/96
A7.10 Plan/Section/Elevation @ East Facade Floors 17-22 4/26/96
A7.11 Plan/Section/Elevation @ West Facade Floors 19-22 4/26/96
A7.11A Plan/Section/Elevation @ West Facade Floors 1~23 4/26/96
A7.12 Plan/Section/Elevation @ Southeast Corner Floor 4 4/26/96
A7.13 Plan/Section/Elevation @ South Facade Floor 23 4/26/96
A7.14 Plan @ Feature Element - Floor 10 4/26/96
A7.15 Section/Elevation @ Feature Element - Floor 10 4/26/96
A7.16 Plan/Section/Elevation @ West Facade - Floor 11 4/26/96
A7.17 Plan @ Southwest Corner Floor 23 4/26/96
A7.19 Typical Details 4/26/96
A7.19A Typical Details - Alternate 4/26/96
A7.20 Plan Details 4/26/96
A8.01 Roof Details 4/26/96
A8.02 Roof Details 4/26/96
AB.03 Roof Details 4/26/96
A8.04 Roof Details 4/26/96
A8.05 Roof Details 4/26/96
A8.11 Masonry Details 4/26/96
A8.12 Exterior Wall Plan Details 4/26/96
A8.13 Exterior Wall Plan Details 4/26/96
A8.31 Wall Section Details 4/26/96
A6.51 Louver/Window Details 4/26/96
A9.01 Interior Partition Types 4/26/96
A9.11 Interior Plan Details 4/26/96
STRUCTURAL DRAWINGS
S-001 General Notes 1 4/26/96
S-002 General Notes 2 4/26/96
<PAGE>
S-101 Foundation Plan (Sub Cellar) & Cellar Floor Framing Plan 4/26/96
S-102 Level 1 & 2 Floor Framing Plans 4/26/96
S-103 Level 3 & 4 Floor Framing Plans 4/26/96
S-104 Level 5 & 6 Floor Framing Plans 4/26/96
S-105 Level 7 thru 9 & Level 10 Framing Plans 4/26/96
S-106 Level 11 & 12 Floor Framing Plans 4/26/96
S-107 Level 13 & 14 Floor Framing Plans 4/26/96
S-108 Level 15 & 16 Floor Framing plans 4/26/96
S-109 Level 17 & 18 Floor Framing Plans 4/26/96
S-110 Level 19 & 20 Floor Framing plans 4/26/96
S-111 Level 21 & 22 Floor Framing Plans 4/26/96
S-112 Level 23 & 23A Mezzanine Floor Framing Plans 4/26/96
S-113 Roof Framing Plan 4/26/96
S-201 Column Schedule 4/26/96
S-202 Column Details 1 4/26/96
S-203 Column Details 2 4/26/96
<PAGE>
S-301 N-S Wind Frame Elevations & Schedules 3/12/96
S-302 E-W Wind Frame Elevations 4/26/96
S-303 E-W Wind Frame Schedules 3/15/96
S-304 Wind Frame Details 1 3/15/96
S-401 Typical Foundation Section & Details 1 3/12/96
S-402 Typical Foundation Section & Details 2 4/26/96
S-403 Foundation Sections & Details 3 4/26/96
S-404 Foundation Sections & Details 4 3/15/96
S-405 Foundation Sections & Details 5 3/15/96
S-406 Foundation Sections & Details 6 3/15/96
S-501 Typical Sections & Details 1 3/12/96
</TABLE>
<PAGE>
RIDER "B" May 9,1996
LIST OF DRAWINGS AND SPECIFICATIONS
LOUIS VUITTON NA OFFICE TOWER
EAST 57TH STREET
NEW YORK, NEW YORK
<TABLE>
<CAPTION>
<S> <C> <C>
Drawing No. Description Date
STRUCTURAL DRAWINGS - continued
S-502 Typical Sections & Details 2 4/26/96
S-503 Typical Sections & Details 3 4/26/96
S-601 Superstructure Sections & Details 1 4/26/96
S-602 Superstructure Sections & Details 2 4/26/96
S-603 Superstructure Sections & Details 3 4/26/96
S-604 Superstructure Sections & Details 4 4/26/96
S-605 Superstructure Sections & Details 5 4/26/96
S-606 Superstructure Sections & Details 6 4/26/96
S-103A Level 3 & 4 Floor Framing Plans - Alternate No.1 3/12/96
S-104A Level 5 & 6 Floor Framing Plans - Alternate No.1 3/12/96
S-105A Level 7 thru 9 & 10 Floor Framing Plans - Alternate No.1 3/12/96
S-106A Level ii & 12 Floor Framing Plans - Alternate No.1 3/12/96
S-107A Level 13 & 14 Floor Framing Plans - Alternate No.1 3/12/96
S-108A Level 15 & 16 Floor Framing Plans - Alternate No.1 3/12/96
MECHANICAL DRAWINGS
M-1.01 Symbols List and Notes 3/12/96
M-1.02 General Notes 4/26/96
M-2.01 Sub-Cellar and Cellar HVAC Floor Plans 4/26/96
M-2.02 HVAC Floor Plans Level 1-2 4/26/96
M-2.03 HVAC Floor Plans Level 34 4/26/96
M-2.04 HVAC Floor Plans Level 56 4/26/96
M-2.05 HVAC Floor Plans Level 7-8 4/26/96
M-2.06 HVAC Floor Plans Level 9-10 4/26/96
M-2.07 HVAC Floor Plans Level 11-12 4/26/96
M-2.08 HVAC Floor Plans Level 13-14 4/26/96
M-2.09 HVAC Floor Plans Level 15-16 4/26/96
M-2.10 HVAC Floor Plans Level 17-18 4/26/96
M-2.11 HVAC Floor Plans Level 19-20 4/26/96
M-2.12 HVAC Floor Plans Level 21-22 4/26/96
M-2.13 HVAC Floor Plans Level 2~23A 4/26/96
M-2.14 Roof Level 4/26/96
M-3.01 Typical Floor Core Plan & Section 4/26/96
M-3.02 3rd Floor MER Part Plan 4/26/96
M-3.03 Level 22 Sections 4/26/96
M-3.04 Cellar Part Plan 4/26/96
M-3.05 HVAC Level 2 MER Part Plan 4/26/96
M-4.01 Hot Water Riser Diagram 4/26/96
M-4.02 Condenser Water and Fuel Riser Diagrams 4/26/96
M-4.03 Air Riser Diagrams 4/26/96
M-4.04 Steam Service layout Detail 4/26/96
<PAGE>
M-5.01 HVAC Equipment Schedules Sheet #1 4/26/96
M-5.02 HVAC Equipment Schedules Sheet #2 4/26/96
M-5.03 HVAC Equipment Schedules Sheet #3 4/26/96
M-5.04 HVAC Equipment Schedules Sheet #4 4/26/96
M-6.01 HVAC Details Sheet #1 3/13/96
M-6.02 HVAC Details Sheet #2 3/13/96
M-6.03 HVAC Details Sheet #3 3/13/96
M-6.04 HVAC Details Sheet #4 3/13/96
M-6.05 HVAC Details Sheet #5 3/13/96
M-6.06 HVAC Details Sheet #6 3/13/96
M-6.07 HVAC Details Sheet #7 3/13/96
M-6.08 HVAC Details Sheet #8 4/26/96
</TABLE>
<PAGE>
RIDER "B" May 9,1996
LIST OF DRAWINGS AND SPECIFICATIONS
LOUIS VUITTON NA OFFICE TOWER
EAST 57TH STREET
NEW YORK, NEW YORK
<TABLE>
<CAPTION>
<S> <C> <C>
Drawing No. Description Date
ELECTRICAL DRAWINGS
E-1.1 Symbol List, General Notes and Schedules 4/26/96
E-2.1 Sub-Cellar and Cellar Floor Plans - Lighting and Power 4/26/96
E-2.2 Level 1 and 2 Floor Plans - Lighting and Power 4/26/96
E-2.3 Level 3 and 4 Floor Plans - Lighting and Power 4/26/96
E-2.4 Level 5 and 6 Floor Plans - Lighting and Power 4/26/96
E-2.5 Level 7 and 8 Floor Plans - Lighting and Power 4/26/96
E-2.6 Level 9 and 10 floor Plans - Lighting and Power 4/26/96
E.2.7 Level 11 and 12 Floor Plans - Lighting and Power 4/26/96
E-2.8 Level 13 and 14 Floor Plans - Lighting and Power 4/26/96
E-2.9 Level 15 and 16 Floor Plans - Lighting and Power 4/26/96
E-2.1O Level 17 and 18 Floor Plans - Lighting and Power 4/26/96
E-2.11 Level 19 and 20 Floor Plans - Lighting and Power 4/26/96
E-2.12 Level 21 and 22 Floor Plans - Lighting and Power 4/26/96
E-2.13 Level 23 and 23A Floor Plans - Lighting and Power 4/26/96
E-2.14 Level 23 and 23A Floor Plans - Power 4/26/96
E-2.15 Roof level floor Plan - Lighting and Power 4/26/96
E-2.16 Level 22 to Roof Stair Lighting Layout 4/26/96
E-3.1 Switchboard Room Part Plan 4/26/96
E-3.2 Electric Typical MER Plan 4/26/96
E-4.1 Light and Power Riser Diagram 4/26/96
E-4.2 Single Line Diagram 4/26/96
E-4.3 Telephone/Comm/Datam - Riser Diagram 3/13/96
E-5.1 Distribution Panel Schedules 4/26/96
E-5.2 Panel Schedules 4/26/96
E-5.3 Panel Schedules 4/26/96
E-5.4 Panel Schedules 4/26/96
E-6.1 Facade Lighting - South Elevation 4/26/96
E-6.2 Facade Lighting Details 3/13/96
E-6.3 Facade Lighting Dimming - Single Line Diagram 4/26/96
E-6.4 Lobby Fixture and Control Detail 3/13/96
FA-1.1 Fire Alarm Symbols List and General Notes 4/26/96
FA-2.1 Sub-Cellar and Cellar Fire Alarm Plans 3/13/96
FA-2.2 Level I and 2 Fire Alarm Plans 4/26/96
FA-2.3 Level 3 and Typical Fire Alarm Plans 4/26/96
FA-2.4 Level 21 and 22 Fire Alarm Plans 4/26/96
FA-2.5 Level 23 and 23A Fire Alarm Plans 3/13/96
FA-2.6 Roof Level Fire Alarm Plan 3/13/96
FA-4.1 Fire Alarm System Riser Diagram 4/26/96
PLUMBING DRAWINGS
P-1.0 Site Plan, Symbol List and Notes 4/26/96
<PAGE>
P-2.01 Plumbing Plans Sub-Cellar and Cellar 5/09/96
P-2.02 Plumbing Plans Level 1-2 4/26/96
P-2.03 Plumbing Plans Level 3 & Typical Level 4/26/96
P-2.07 Plumbing Plans Level 11-12 4/26/96
P-2.08 Typical Plumbing Plans Level 13-20 4/26/96
P-2.12 Plumbing Plans Level 21-22 4/26/96
P-2.13 Plumbing Plans Level 23-23A 4/26/96
P-2.14 Plumbing Plan Roof Level 4/26/96
P-3.01 Plumbing Plan Level 2-20 Typical Toilet Room 4/26/96
P-3.02 Plumbing Part Plan Level 1 RPZ Assembly Detail 4/26/96
P-4.01 Sanitary and Storm Drainage Riser Diagrams 4/26/96
P-4.02 Fire Standpipe Riser Diagrams 5/09/96
P-4.03 Water Riser Diagram 5/09/96
</TABLE>
<PAGE>
RIDER "B" May 9,1996
LIST OF DRAWINGS AND SPECIFICATIONS
LOUIS VUITTON NA OFFICE TOWER
EAST 57TH STREET
NEW YORK, NEW YORK
<TABLE>
<CAPTION>
<S> <C> <C>
Drawing No. Description Date
PLUMBING DRAWINGS - continued
P-6.01 Plumbing Details 3/13/96
P-6.02 Plumbing Details 3/13/96
P-6.03 Plumbing Details 4/26/96
FIRE PROTECTION DRAWINGS
SP-1.0 Symbol List & Notes 3/13/96
SP-2.01 Sprinkler Plans Sub-Cellar & Cellar 4/26/96
SP-2.02 Sprinkler Plans Levels 1-2 4/26/96
SP-2.03 Sprinkler Plans Level 3 and Typical Level 4 through Level 8 4/26/96
SP-2.06 Sprinkler Plans Levels 9-10 4/26/96
SP-2.07 Sprinkler Plans Levels 11-12 4/26/96
SP-2.08 Sprinkler Plans Levels 13-20 4/26/96
SP-2.12 Sprinkler Plans Levels 21-22 4/26/96
SP-2.13 Sprinkler Plans Levels 23-23A 4/26/96
SP-4.01 Sprinkler Riser Diagram 5/09/96
SP-6.01 Sprinkler Details 3/13/96
SPECIFICATIONS
01010 Summary of Work 12/18/95
01300 Submittals 12/18/95
01600 Product Requirements 12/18/95
01700 Construction Procedures 12/18/95
02220 Excavatlon1 Filling & Grading 12/18/95 03300 Concrete12/18/95
04200 Unit Masonry 03/12/96 (Pg. 5 4/26/96)
05120 Structural Steel 03/12/96
05300 Metal Deck 03/12/96
05500 Metal Fabrication 04/26/96
05510 Metal Stairs & Railings 01/24/96
07115 Self-Adhesive Sheet Waterproofing 03/12/96
07140 Metal Oxide Waterproofing 03/12/96
07160 Bituminous Dampproofing 03/12/96
07190 Vapor and Air Barriers 04/26/96
07250 Sprayed-on Fireproofing 03/12/96
07275 Firestopping 03/12/96
07411 Manufactured Metal Roof Panels 04/26/96
07530 Single Ply Membrane Roofing 01/24/96
07550 Protected Membrane Roofing 01/24/96
07570 Traffic Coating 04/26/96
07600 Flashing and Sheet Metal 03/12/96
07700 Roof Specialties and Accessories 03/12/96
07901 Exterior Joint Sealers 03/12/96
08801 Glazing For Punched Windows 03/12/96
08900 Curtain Walls 04/26/96
08923 Glazed Aluminum Punched Window System 04/26/96
09820 Cementitious Coatings 03/12/96
10200 Louvers and Vents 01/24/96
11010 Exterior Maintenance System 01/24/96
14200 Elevators 12/18/95
15010 General Provisions For Plumbing & Fire Protection Work 03/13/96
15050 Protection Work 04/26/96
15060 Piping and Fitting Materials 03/13/96
15070 Hangers. Supports, Anchors, Guides & Foundations 03/13/96
15080 Valves 03/13/96
15180 Insulation 03/13/96
15300 Fire Standpipe System 04/26/96
15310 Fire Suppression Systems 03/13/96
15440 Plumbing Fixtures 04/26/96
15453 Plumbing Pumps 03/13/96
15458 Domestic Water Heaters 04/26/96
</TABLE>
<PAGE>
RIDER "B"
LIST OF DRAWINGS AND SPECIFICATIONS
LOUIS VUITTON NA OFFICE TOWER
EAST 57TH STREET
NEW YORK. NEW YORK
<TABLE>
<CAPTION>
<S> <C> <C>
Drawing No. Description Date
SPECIFICATIONS - continued
15480 Domestic Water System 04/26/96
15490 Soil, Waste, Vent & Storm Water Systems 03/13/96
15501 General Provisions 03/13/96
15510 Pipes and Pipe Fittings 03/13/96
15515 Pipe Specialties 04/26/96
15520 Valves 03/13/96
15525 Steam Pressure Reducing Valve Stations 04/26/96
15526 Expansion and Compression Tanks 03/13/96
15530 Condensate Pumps & Receiver Sets 03/13/96
15540 Centrifugal Pumps 03/13/96
15547 Vibration Control 04/26/96
15549 Insulation 04/26/96
15632 Emergency Generator Support Systems 03/13/96
15683 Air Cooled Rooftop Self-Contained Package Unit 04/26/96
15665 Vertical Water Cooled Self-Contained Package Units 04/26/96
15666 Horizontal Water Cooled Self-Contained Package Units 04/26/96
15692 Cooling Towers 04/26/96
15718 Unit Heaters 03/13/96
15754 Fans 04/26/96
15755 Heat Exchangers 03/13/96
15760 Air Handling Units 03/13/96
15762 Acoustical Treatment 04/26/96
15790 Air Coils 03/13/96
15820 Automatic Temperature and System Control 04/26/96
15820A Automatic Temperature and System Control BMS
(Alternate Price) 04(26/96
15830 Heating Equipment 04/26/96
15853 Electric Heating Cable 03/13/96
15880 Sheet Metal Work 04/26/96
15885 Air Filters 03/13/96
15932 Grilles, Register and Diffusers 03/13/96
15970 Electric Motors, Motor Controls and Wiring Diagrams 03/13/96
15980 Thermometers and Gauges 03/13/96
15990 Testing, Adjusting and Balancing 03/13/96
15995 Painting 03/13/96
15997 Water Treatment and Chemical Cleaning Systems 04/26/96
16010 General Provisions For Electrical Work 03/13/96
16110 Raceways 03/13/96
16112 Surface Raceways 03/13/96
16120 Wire and Cable 03/13/96
16130 Boxes and Fittings 03/13/96
16140 Wiring Devices 03/13/96
16160 Cabinets and Enclosures 03/13/96
16195 Electrical Identification 03/13/96
16420 Service Entrance 03/13/96
16425 Main Switchboard and Service Switches 03/13/96
16435 Grounding 03/13/96
16440 Disconnects 03/13/96
16445 Emergency Distribution Switchboard 03/13/96
16465 Bus Duct 03/13/96
16470 Panelboards 03/13/96
16495 Automatic Transfer Switch 04/26/96
16500 Lighting Fixtures and Lamps 04/26/96
16620 Packaged Engine Generator System 04/26/96
16720 Automatic Fire Detection and Alarm 04/26/96
16742 Telephone 03/13/96
</TABLE>
NOTE: The above list of documents contains all drawings and specifications
for the project. These documents are available for examination at the
Construction Manager's office. Contractor shall be responsible for information
contained within all of these documents.
<PAGE>
RIDER "C"
ALTERNATES AND UNIT PRICES
LOUIS VUITTON NA. OFFICE TOWER
EAST 57TH STREET
NEW YORK, NEW YORK
March 25, 1996
TRADE: STRUCTURAL STEEL/METAL DECK
At the Owner's option In accordance with the article entitled "Changes and
Extras" of the Contract, the following Alternates end Unit Prices shall be
used for all additions and/or deletions to the Scope of Work and shall be
inclusive of furnishing and Installing of 911 material, labor, trucking,
overhead, profit, equipment, hoisting, engineering, scaffolding, power
hookups, protection, shop drawings, taxes, permits, appliances, delivery end
supervision end shell remain in effect until completion of the project. Items
covered by these prices shell be furnished in accordance with the
Specifications and in quantities and locations as directed by the Construction
Manager.
ALTERNATES
<PAGE>
1. In the event the Contractor is not required to provide 100% Performance
and 100% Labor and Material Payment Bonds DEDUCT $57,750
UNIT PRICES
1. For addition or deletion of members similar to the average members of
the Base Contract, not Including metal deck
<TABLE>
<CAPTION>
<S> <C>
Grade 46 $2,300.00/ton
Grade 50 $2,400.00/ton
</TABLE>
2. For increase or decrease in the weights of members that are part of the
Base Contract
<TABLE>
<CAPTION>
<S> <C>
Grade 46 $ 750.00/ton
Grade 50 $ 800.00/ton
</TABLE>
<PAGE>
3. For addition or deletion of A46 members weighing 200 lbs. $ 2800.00/ton
4. Hoisting of material for other trades per pick including crew $
1,800.00/ton
5. Web penetrations
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
unreinforced
(less than 6" diam.) Field $ 500.00/ea Shop $ 275.00/ea
a. Type "A" (4" x 8" Avg. or 8" diam.)
Reinforced Field $ 650.00/ea Shop $ 325.00/ea
b. Type "B"
(To 8" x 12" Avg.) Field $ 1,300.00/ea Shop $ 400.00/ea
c. Type "C"
(To 12" x 24") Field $ 1,400.00/ea Shop $ 500.00/ea
d. (To 14" x 40") Field $ 1,800.00/ea Shop $ 600.00/ea.
</TABLE>
6. Add or Deduct metal deck (20 ga) $ 4.00 /sf
7. For addition or deletion of stud shear connectors including detailing
costs $ 3.00 /sf
FIRMNAME: US Bridge of N.Y.
<PAGE>
RIDER MDN
INDUSTRIAL AND COMMERCIAL INCENTIVE PROGRAM
LOUIS VUITTON NA. OFFICE TOWER
EAST 57TH STREET
NEW YORK, NEW YORK
March 20, 1996
I. CONTRACT PROVISIONS
The Contractor in executing any contract benefiting from the I.C.I.P.
agrees that It:
1. Will not discriminate against any employee or applicant for employment
because of race, creed1 color1 national origin, sex, age, disability,
marital status, sexual orientation, or citizenship status with respect to
all employment decisions Including but not limited to recruitment. hiring.
upgrading, demotion, downgrading, transfer, training, rates of pay or
other forms of compensation, layoff, termination, and all other terms and
conditions of employment;
2. will not discriminate In the selection of Subcontractors on the basis
Of the Owner's , Partners' or Shareholders' race, creed, color, national
origin9 sex, age, disability', marital status, sexual orientation or
citizenship status;
3. will state In all solicitations or advertisements for employees placed
by or on behalf of the Contractor that all qualified applicants will
receive consideration for employment without regard to race, creed, color,
national, origin, sex, age, disability, marital status, sexual orientation
or citizenship status or is an equal employment opportunity employer;
4. will send to each labor organization or representative of workers with
which It has a collective bargaining agreement or other contract or
memorandum of understanding, written notification of its equal employment
opportunity commitments;
5. will not award subcontracts with a dollar value of $750,000 or more or
allow such subcontractors to commence work until he or she has submitted a
completed employment report to DLS and until DLS approves or fails to
respond within 15 business days of receipt of completed employment report;
6. will require any Subcontractor who, due to change orders, reach
$750,000 submit an employment report to DLS. If a Subcontractor does not
submit an employment report the applicant will be found in noncompliance
and the Department of Finance will be notified to impose sanctions;
7. will permit DLS access to the project site and to all books, records
and will file certified payroll records as required by DLS;
8. DLS has the right to suspend work on this project for a Contractors'
failure to allow DLS access to their workforce;
9. will not engage In moving employees from on-job-site to another in
order to create the appearance of compliance with applicable laws,
regulations or executive orders designed to ensure equal employment
opportunity;
10.will submit to the jurisdiction of DLS for the purposes of determining
compliance with these representations and will cooperate with DLS in
attempting to cure any instances of non-compliance with Article 22
regulations;
11.will terminate, suspend, or not award any subcontract entered into in
connection with the project described in I.C.I.P. applications with any
Subcontractor found by DLS to be in violation of any provision of these
representatives;
12.will Include or cause to be included in all contracts or subcontracts
for amounts In excess of $750,000 entered into In connection with this
project the following provision: In consideration for and as a condition
of this contract, the contractor or subcontractor agrees that during its
performance it: (this paragraph should be followed by paragraphs (1)
through (10) above}.
13. will employ trainees for training level jobs and participate in
on-the-job training programs which have been approved by DLS, in the event
that the construction work which it undertakes In connection with this
project should employ four or more lourney-level em~lovees in a particular
trade for at least four consecutive weeks, as such terms are defined by
the prevailing practice in the industry. The Contractor shall be
considered to employ four journey-level employees in a particular trade
whose aggregate works hours equal the number of hours that four lull-time
journey-level employees would have worked in a work week, as such terms
are defined by the prevailing practice in the industry for the particular
trade;
14.will make a good faith effort to achieve a ratio of at least one trainee
to four journey-level employees for each trade on the project. "Good faith
- -------------------- efforts" shall mean:
a. documented efforts to secure trainees from training programs approved by
the DLS;
<PAGE>
RIDER "D"
INDUSTRIAL AND COMMERCIAL INCENTIVE PROGRAM
LOUIS VUITTON NA OFFICE TOWER
EAST 57TH STREET
NEW YORK. NEW YORK
I. CONTRACT PROVISIONS - continued
b. documented efforts through the New York State Department of
Employment, Training Assistance Plan Centers and community and CMI
rights groups to identify candidates for training positions and to
sponsor these persons for entrance into approved training programs; and
c. written notification to DLS In the event of an inability to secure
trainees pursuant to clauses (a) and (b) of this subparagraph, and
requesting DLS' assistance in securing trainees, Neither the provisions
of any collective bargaining agreement nor the refusal by a union with
whom the contractor has collective bargaining agreement to recognize
the validity of the training program shall excuse the contractor's
obligation to provide training pursuant to these regulations.
15.will attempt to provide continuous employment for trainees after
completion of the construction being undertaken in order to enable them to
complete their course of training.
16.will refer, recommend and sponsor, if union affiliated, any of its
trainees for union membership who can perform the duties of a qualified
journey-level employee or who have satisfactorily completed the training
program; and assure that such former trainees will receive journey-level
wage and free benefits, whether or not union membership is granted after
such referral, recommendation or sponsorship and that their employment
shall be continued if possible;
17.will supply DLS with such additional Information and reports as it may
require; permit OLS access to the project site and to its books, records
and accounts and otherwise cooperate with and submit to the jurisdiction
of DLS for the purpose of ensuring compliance with these provisions which
OLS may find;
18.will supply DLS with such additional information and reports as it may
require; permit DLS access to the project site and to its books, records
and accounts and otherwise cooperated with and submit to the jurisdiction
of OLS for the purpose of ensuring compliance with these provisions which
DLS may find;
19.will pay to the Department, in the event of its own or its contractor's
failure to provide training, where applicable, pursuant to the
regulations, to the required number of trainees for the required number of
weeks, and amount equal to the difference between the wages and fringe
benefits paid to the trainees and the wages and fringe benefits which
would have been paid to first term trainees under the prevailing wage
schedule In effect at the time the trainees would have been employed had
the number and duration of the positions been as required, unless the
Contractor or applicants or their successors, where applicable, can
demonstrate that it made a good faith effort to provide training and was
unsuccessful; in the event of a Contractor's failure to provide training,
where applicable, the applicant shall have the right to recover from
noncomplying contractor any amounts accessed against it under this
provision.
II. CONTRACTOR RESPONSIBILITIES
1. The Contractor shall treat all employees and applicants for employment
without unlawful discrimination as to race, creed, color, national origin,
sex, age, disability, marital status or sexual orientation in all
employment decisions including but not limited to recruitment, hiring,
compensation, training/apprenticeship, promotion, upgrading, demotion,
transfer, lay-off and termination and all other terms and conditions of
employment;
2. The Contractor shall develop and submit to the DLS for its approval a
written Equal Employment Opportunity Policy statement which explicitly
states the chief executive officer's commitment to equal employment
opportunity and assigns overall responsibility for implementation and
provides for reporting and monitoring procedures.
3. The Contractor shall disseminate its equal employment opportunity
policy internally as follows:
(a) Include the policy in employee and supervisor manuals, if any;
(b) publicize the policy and company achievements In equal employment
In company newspapers, magazines, annual reports, and other company
publications;
(c) discuss and explain the policy in training sessions and other
meetings with employees, executives, management, and supervisory
personnel, indicating individual responsibility for effective
implementation;
(d) meet with union officials to inform them of the policy, review
all contractual provisions to insure they are nondiscriminatory, and
bargain with respect to the inclusion of nondiscrimination clauses in
all union agreements; and
(e) post the policy on company bulletin boards.
<PAGE>
RIDER "D" March 20, 1996
INDUSTRIAL AND COMMERCIAL INCENTIVE PROGRAM
LOUIS VUITTON NA OFFICE TOWER
EAST 57TH STREET
NEW YORK. NEW YORK
II. CONTRACTOR RESPONSIBlLITIES - continued
4. The contractor shall disseminate its equal employment opportunity policy
externally as follows:
(a)inform all recruiting sources verbally and In writing of company policy,
stipulating that these sources actively recruit and refer members of all
protected groups for all protected groups for all positions;
(b)incorporate the equal employment opportunity policy into all purchase
orders, contracts, etc., covered by Article 22 regulations; and
(c)communicate the policy in all solicitations or advertisements for
employees placed by or behalf of the contractor.
5. An executive of the Contractor shall be appointed as director or manager
of the company's equal employment programs with sufficient resources to
carry out the responsibility. His or her identity should appear on all
internal and external communications on the company's equal employment
policy and programs. His or her responsibilities should Include:
(a)developing policy statements, equal employment programs, internal and
external communication techniques and programs;
(b)assisting in the identification of problem areas;
(c)assisting line management in arriving at solutions to problems;
(d)designing and implementing audit and reporting systems that will:
(1) measure effectiveness of the contractor's policy and implementing
programs including supervisors' and management's adherence to the equal
employment opportunity policy;
(2) indicate need for remedial action;
(3) determine the degree to which the Contractor's equal employment
objectives have been let;
(4) serve as liaison between the contractor and enforcement agencies;
(5) serve as liaison between the contractor and minority organizations,
women's organizations, advocate or~anizations for other protected groups and
community action groups concerned with equal employment opportunity.
(6) The Contractor shall make every effort to ensure that protected class
members (Blacks, Hispanics, Asians indigenous Native Americans and Women) are
employed consistent with their availability in NYC.
(7) The Contractor will ensure that all Subcontractors with a dollar value
of $750,000 or more will complete and forward an Employment Report to OLS for
approval BEFOR~ contract award or work commence~.
(8) The Contractor shall ensure the maintenance of weekly certified payroll
records for themselves as well as any subcontractor with a dollar value of
$750,000 or more.
(a) Certified payroll records must be maintained for all Contractors
employed on site. Contractors and Subcontractors required to comply with the
trainee provisions of Article 22 and will be required to submit certified
payrolls to DLS on a monthly basis. No work performed payrolls must be submitted
to cover all weeks when no work was performed between submission of the initial
payroll report and final payroll report. Certified payrolls must contain:
1. Name and address of contractor/subcontractor;
2. Federal ID Number;
3. Project name and location (print on payroll);
4. DLS project Number;
5. Contract Number (Block & Lot);
6. Payroll Number (1nitlal thru final);
7. Week ending date;
8. Name, address and social security number of employees;
9. Trade and classification code of employees; and
10. Sex, race/ethnic identification of employees (see attached codes).
<PAGE>
RIDER "D"
INDUSTRIAL AND COMMERCIAL INCENTIVE PROGRAM
LOUIS VUITTON NA OFFICE TOWER
EAST 57TH STREET
NEW YORK. NEW YORK
II. CONTRACTOR RESPONSIBILITlES - continued
PAYROLL RECORDS THAT ARE SUBMITTED TO DLS THAT DO NOT CONTAIN ALL REQUIRED
INFORMATION WILL BE FORWARDED BACK TO THE CONTRACTOR1 SUBCONTRACTOR,
CONSTRUCTION MANAGER OR CONSULTANT AS INCOMPLETE.
Attachments needed:
1. Statement of compliance with an original signature:
2. Trainee Agreement or Trainee Profile for all trainees (send In with the
payrolls as the trainees show up on the job). Acceptable trainee
agreements or profiles are from the Bureau of Apprenticeship and
Training;
3. Apprentice Agreements (where applicable); and
4. List of supervisory employees (eg. nonworking foremen) with proper
documentation.
(a) If any work to be performed on this project is dangerous or
hazardous work to which apprentices or trainees cannot be
assigned1 the Contractor agrees to provide written documentation
of such work. Documentation shall include written confirmation by
the appropriate union that the apprentices or trainees may not be
assigned to such work due to its hazardous nature.
The Contractor further agrees to specify the journey
level workers performing such hazardous or dangerous work and the
hours in which they are directly engaged In such work upon
submission of each payroll record to DLS. The Contractor
understands that failure to provide this documentation prior to
DLS' payroll audit will result in a waiver of the Contractor's
right to exclude such work from DLS computations regarding the
number of trainee hours required.
<PAGE>
LABOR AND MATERIAL
December 5, 1995
INSURANCE RIDER
PROJECT: Louis Vuitton NA Office
Tower East 57th Street
New York1 New York
TRADE: Structural Steel/Metal Deck
INSURANCE
Prior to commencement of any work under this Contract and until all obligations
under this contract are fulfilled, the Contractor and each and every
Subcontractor of the Contractor shall, at its sole expense1 maintain the
following Insurance on its own behalf, and furnish to the Owner and/or
Construction Manager, certificates of insurance evidencing same and reflecting
the effective date of such coverage as follows:
Theterm "Contractor" 'and/or "Subcontractor"' as used In
this Insurance rider, shall mean and Include
Contractors and Subcontractors of every tier.
A. Workers Compensation and Occupational Disease Insurance in accordance
with the applicable law or laws: Employer's Liability Insurance with
Limit of Liability of at least Five Hundred Thousand ($500,000)
Dollars.
The Contractor shall provide a copy of the "Employer's First Report of
Injury" or its equivalent to Tishman Construction Corporation of New
York, 666 Fifth Avenue New York, New York 10101, Attn: Insurance
Department, within thirty (30) days of any Injury or Illness to any
employee of the contractor arising out of, or alleged to have arisen
out of or during the course of work performed on this project.
B. Commercial General Liability with a combined Bodily Injury and
Property Damage limit of not less than TEN Million ($10,000,000.00)
Dollars per occurrence and In the aggregate. The aggregate must be
applicable on a per project basis. Coverage must include the
following perils: (The limit may be provided through a combination of
Primary and Umbrella/Excess Liability policies).
1. Contractual Liability for liability assumed under this Contract and all
other Contracts relative to the project.
2. Completed Operations/Products Liability with a two (2) year extension
beyond completion and acceptance of the project
3. Broad Form Property Damage
4. "XC&U" Perils, where applicable
5. Personal Injury Liability (A, B, & C)
6. Independent Contractors
7. Endorsement (CG2O1O or its equivalent) must be furnished reflecting the
inclusion of the interests of Starre Realty, 1896 Corp.; R.L.J. Associates, L.P.
.; AEZ Corporation; Louis Vuitton NA, Inc.; Groupe George V; Metropole Realty
Advisors, Inc.; NTX Interiors, Inc. and Tishman Construction Corporation of New
York, and their respective parent companies, corporations and/or partnerships
and their owned, controlled, affiliated, associated and subsidiary companies,
corporations, and/or partnerships and the respective agents, consultants,
principals. partners, servants, officers, stockholders, directors and employees
of each and all other Indemnitees named In the Contract as Additional insured:.
8. Coverage Is to be endorsed to reflect that the Insurance provided is to
be primary for the Contractor, Owner, Construction Manager and all other
Indemnitees named In the Contract.
9. Coverage is to be provided on an "occurrence" basis with carriers
licensed and admitted to do business in the State of New York or otherwise
acceptable to the Owner and Construction Manager.
10. A Copy of the policy and/or endorsement(s) and any other documents
required to verify such insurance are to be submitted with the appropriate
certificate(s), or upon the request of Tishman Construction Corporation of New
York.
C. Commercial Automobile Liability Insurance covering the use of all Owned,
Non-Owned, and Hired Vehicles with a combined Bodily Injury and Property Damage
Limit of at least One MillIon ($1,000,000) Dollars. Automobile Insurance must
include all additional insureds.
<PAGE>
Vuitton NA
LABOR AND MATERIAL
December 5,1995
D. Where an Off Project Site Property exposure exists, the Contractor at its
sole expense shall furnish to the Owner and/or Construction Manager Certificates
of Insurance and other required documentation evidencing the following coverage
which shall provide for the Interests of Starre Realty, 1896 Corp.; R.LJ.
Associates, L.P.; AEZ Corporation; Louis Vuitton NA, Inc.; Groupe George V;
Metropole Realty Advisors, Inc.; NTX Interiors, Inc. and Tishman Construction
Corporation of New York to be named as Lois Payees and shall contain a provision
requiring the Insurance carriers to waive their rights of subrogation against
all Indemnitees named In the contract.
"All Risk" Property Insurance on all materials1 equipment and supplies intended
to become a permanent part of the construction stored on premises away from the
project site and while in transit, until actually delivered to the project site.
Coverage is to be provided a replacement cost basis. Contractor shall be
responsible for all deductibles.
E. The above Insurance shall each contain the following wording verbatim:
"Starre Realty, and Tishman Construction Corporation of New York are interested
in the maintenance of this insurance and It is agreed that this Insurance will
not be canceled1 materially changed or not renewed without at least a thirty
(30) day prior advance written notice to Louis Vuitton NA, Inc. 130 East 5~h
Street, New York, New York Attn: Franklin Dickinson, Director and Tishman
Construction Corporation of New York, 666 Fifth Avenue, New York, New York
10103, Attn: insurance Department, and Metropole Realty Advisors, Inc., 681
Fifth Avenue, 9th Floor, New York, New York 10022, Attn: Robert Siegel, by
certified mall - return receipt requested."
F. The amount of insurance contained In aforementioned Insurance coverages,
shall not be construed to be a limitation of the liability on the part of the
Contractor or any of their Subcontractors.
G. The Contractor shall file certificates of insurance prior to the commencement
of work and/or payment with the Owner and/or Construction Manager which shall be
subject to the Owner and Construction Manager's approval of adequacy of
protection and the satisfactory character of the Insurer.
In the event of failure of the Contractor to furnish and maintain said insurance
and to furnish satisfactory evidence thereof. the Center and/or Construction
Manager shall have the right (but not the obligation) to take out and maintain
the same for all parties on behalf of the Contractor who agrees to furnish all
necessary information thereof and to pay the cost thereof to the Owner and/or
Construction Manager immediately upon presentation of a bill.
H. Prior to commencement of any work under this Contract and until completion
and final acceptance of the work, the Owner at its sole expense will provide and
maintain the following insurance for itself, Contractors and Subcontractors
performing work or services In connection with the project.
"All Risk" Property Insurance on the project and all materials, equipment and
supplies located at the project site which are to become a permanent pert of the
construction, while awaiting erection and until completion of erection. Coverage
is provided on a replacement cost basis.
NOTE: In addition to the standard policy exclusions:
1. No coverage is provided for Temporary Structures and Contractor's Tools and
Equipment
2. No coverage is provided for losses resulting from Flood and
Earthquake.
3. No coverage is provided for any material, equipment, or supplies located away
from or in transit to the project site. 4. All covered losses are subject to a
$(10.000.O0) deductible which shall be the responsibility of the contractor,
where applicable.
I. Any type of insurance or any Increase of limits of liability not described
above which the Contractor requires for its own protection or on account of
statute shall be its own responsibility and at its own expense.
J. The carrying of the insurance described shall in no way be interpreted as
relieving the Contractor of any responsibility of liability under this Contract.
K. Any policies effected by the Contractor on their Owned and/or Rented
Equipment and Materials shall contain a provision requiring the insurance
carriers to waive their rights of subrogation of Starre Realty, 1896 Corp.;
R.LJ. Associates, LP.; AEZ Corporation; Louis Vuitton NA, Inc.; Groupe George V;
Metropole Realty Advisors, Inc.; NTX Interiors, Inc. and Tishman Construction
Corporation of New York and all other indemnitees named in the Contract.
L. Should the Contractor engage a Subcontractor, the same conditions will apply
under this contract to each Subcontractor, however, the Subcontractor shall be
required to maintain limits of liability of not less than One Million
($1,000,000) Dollars per occurrence and In the aggregate, with said limits
applicable on a per project basis, or such greater limits as may be required by
the Contractor.
SUBCONTRACTOR AGREEMENT
JOB -~ 9616 PAY ITEM#05100 ~FOR INTERNAL USE ONLY)
ARTICLE 1
AGREEMENT
This Agreement made this___ day of December 13 1996. by and between _______
Humphreys & Harding. Inc.
hereinafter called the Contractor and U.S. Bridge of N.Y.. Inc.
thereinafter called the Subcontractor. to perform part of the Work on the
following project:
ARTICLE 2
PROJECT:
Permanent Mission
To The Republic Of Korea
335-337 E. 45th Street
New York. New York
OWNER:
Republic of Korea Mission
To the United Nations
866 UN Plaza (Suite 300)
New' York, New York 10017
ARCHITECT:
Pei Cobb Freed & Partners
600 Madison Avenue - -
New York, New York 10017
CONTRACTOR:
Humphreys & Harding, Inc.
420 Lexington Avenue
New York, New York 10170
SUBCONTRACTOR:
U.S. Bridge of N.Y., Inc.
53-09 97th Place
Bronx, New York 11368
CONTRACT PRICE; One Million Five Hundred Thousand Dollars ($1,500,000) FOR
Structural Steel Work as further described in this Agreement arid all attached
Riders. Notice to the parties shall be given at the above addresses.
<PAGE>
SCOPE OF WORK
2.1 SUBCONTRACTOR' WORK. The Contractor contracts with the Subcontractor as
an independent contractor. to perform the work described in Rider A. The
Subcontractor shall perform such work (hereinafter called the "Subcontractors
Work') under the general direction of the Contractor and in accordance with this
Agreement and the Contract Documents.
2.2 CONTRACT DOCUMENTS. The applicable Contract Documents which are
incorporated into this Agreement and which are binding on the Subcontractor are
set forth in Article 16. Upon the Subcontractor's request the Contractor shall
furnish a copy of any part of these documents. Nothing in the Contract Documents
shall be construed to create a contractual relationship between persons or
entities other than the Contractor and Subcontractor.
2.3 CONTRACT OBLIGATIONS. With respect to the Work to be performed and
furnished by the Subcontractor, the Subcontractor agrees to be bound to the
Contractor by each and all of the terms and provisions of the Contract Documents
set forth in Article 16. and to assume toward the contractor all the duties.
obligations and responsibilities that the Contractor by those Contract Documents
assumes toward the Owner. Subcontractor agrees further that the Contractor shall
have the same rights and remedies as against the Subcontractor as the Owner.
under the terms and provisions of the Contract Documents. has against the
Contractor with the same force and effect as though every such. obligation.
responsibility, right or remedy were set forth herein in full. The terms and
provisions of the Contract Documents, with respect to the Work to be performed
and furnished by the Subcontractor, are intended to be and shall be in addition
and not in substitution for any of the terms and provisions of this Agreement.
2.4 CONFLICTS. In the event of a conflict between this Agreement and the
Contract Documents. this Agreement shall govern.
ARTICLE 3
SCHEDULE OF WORK
3.1 TIME IS OF THE ESSENCE. Time is of the essence to this Agreement: and
the parties agree to mutually cooperate with each other so that the entire
Project may be completed in accordance with the Contract Documents and the
Schedule of Work. The Contractor may prepare a Schedule of Work and revise such
Schedule as the Work progresses.
3.2 DUTY TO BE BOUND. The Subcontractor shall provide the Contractor with
any requested scheduling information for the Subcontractors Work. The Schedule
of Work and all subsequent changes thereto shall be furnished to the
Subcontractor. The Subcontractor agrees to be bound to the Schedule of Work and
any subsequent revisions.
3.3 SCHEDULE CHANGES. The Subcontractor recognizes that changes will be
made in the Schedule of Work and agrees to comply with changes.
3.4 PRIORITY OF WORK. The Contractor shall have the right to decide the
time. order and priority in which the various portions of the work shall be
performed and all other matters relative to the timely and orderly conduct of
the Subcontractors Work. The Subcontractor shall commence its work within three
(3) days of notice to proceed from the Contractor; and if such work is
interrupted for any reason the Subcontractor shall resume such work within two
working days from the Contractors notice to do so.
ARTICLE 4
CONTRACT PRICE
The Contractor agrees to pay the Subcontractor for the satisfactory
performance of the Subcontractor's Work the amount stated in Article I subject
to additions or deductions per Article 6.
ARTICLE 5
PAYMENT
5.1 GENERAL PROVISIONS
5.1.1 SCHEDULE OF VALUES. The Subcontractor shall provide a schedule of
values satisfactory to the Contractor and the Owner no more than fifteen (15)
days from the date of execution of this Agreement.
5.1.2 ARCHITECT VERIFICATION. Upon request the contractor shall give the
Subcontractor written authorization to obtain directly from the Architect the
percentage of completion certified for the Subcontractors Work.
5.1.3 PAYMENT USE RESTRICTION. Every payment received by the Subcontractor
shall be used to satisfy the indebtedness owed by one Subcontractor to any
person furnishing labor or materials for use in performing me Subcontractor's
Work in this Project before it is used in any other manner.
5. 1.4 PAYM(pound)NT USE VERIFICATION. The Contractor may at any time
require the Subcontractor to furnish a notarized affidavit that all finds by the
Subcontractor have been used to pay the Subcontractor's obligations incurred in
the performance of the Subcontractors Work on this Project. The Contractor shall
have the right at all times to contact the Subcontractor's subcontractors and
suppliers to ensure that the same are being paid promptly by the Subcontractor
for labor or materials homicide for use in performing the Subcontractor's Work.
5.1.5 PARTIAL LIEN WAIVERS AND AFFIDAVITS. As a prerequisite for payment,
the Subcontractor shall provide. in a form satisfactory to the Owner and the
Contractor. partial lien or claim waivers and affidavits from the Subcontractor.
and its subcontractors and suppliers for the completed Subcontractor's Work.
Such waivers may be made conditional upon payment.
5.1.6 SUBCONTRACTOR PAYMENT FAILURE. Upon payment by the Contractor.
Subcontractor shall promptly pay its lower-tier subcontractors and material
suppliers the amounts to which they are entitled. In the event the Contractor
has reason to believe that labor. material or other obligations (including
employee benefits) incurred in the performance of the Subcontractor's Work are
not being paid. the Contractor may give notice to the Subcontractor and may take
any steps deemed necessary to assure that progress payments are utilized to pay
such obligations including but not limited to the issuance of joint checks. If
upon receipt of such notice. the Subcontractor does not (a) supply evidence to
the satisfaction of the Contractor that the moneys owing to the claimant(s) have
been paid: or (b) post a bond indemnifying the Owner, the Contractor, and the
Contractor's surety, if any, and the premises from any claim or lien: then the
Contractor shall have the right to withhold from any payments due or to become
due to the Subcontractor a reasonable amount to protect the Contractor from any
and all loss. damage or expense including attorney's fees arising out of or
relating to any claim or lien until the claim or lien has been satisfied by the
Subcontractor.
SUBCONTRACTOR ASSIGNMENT OF PAYMENTS. The Subcontractor shall not assign
any moneys due to or become due under this Contract. or under an Change Order
thereto. without the written consent of Contractor. unless such assignment is
intended to create a new security interest within the scope of Article 9 of the
Uniform Commercial Code. Should Subcontractor assign all or any part of any
moneys due or to become due under this Contract to create a new security
interest or for any other purpose. the instrument of assignment shall contain a
clause to the effect that the assi2nee's right in and to any money due or to
become due to the Subcontractor shall be subject to the claims of all persons.
firms and corporations for services rendered or materials supplied for the
performance of the work under this Subcontract and any Change Orders. 5.1.8
PAYMENT NOT ACCEPTANCE. Payment to the Subcontractor does not constitute or
imply acceptance of any portion of the Subcontractor's Work. 5.1.9 OWNER
RESPONSIBILITY FOR PAYMENTS. The Subcontractor hereby acknowledges that it
relies upon the credit of Owner, not the Contractor. for all payments for the
Subcontractor's Work. The Subcontractor shall have the right to receive from the
Contractor such information as the Contractor has obtained relative to the
Owner's financial ability to pay for the Work.
5.2 PROGRESS PAYMENTS
5.2.1 APPLICATION. Subcontractor's application for progress payment shall
be itemized and supported by substantiating data as required in the Contract
Documents for the Contractor's payment application. Subcontractor's applications
shall be notarized if required. Subcontract payment applications may include
payment requests - on account of properly authorized Change Orders. The
Subcontractor's progress payment application for work performed in the preceding
payment period shall be submitted to the Contractor per the terms of this
Agreement and specifically Subparagraphs 5.1.1.5.2.2 and 5.2.4 for approval of
the Contractor and Owner and Architect or Designated Representatives.
The Contractor shall forward. without delay, the approved value to the
Owner for payment.
5.2.2 RETAINAGEISECURITY. The rate of retainage shall be equal to the
percentage retained from the Contractor's payment by the Owner for the
Subcontractor's Work provided the Subcontractor furnishes a bond or other
security to the satisfaction of the Contractor.
<PAGE>
If the Subcontractor has furnished such bond or security and if its work is
satisfactory. and if the Contract Documents provide for reduction of retainage
at a specified percentage of completion, the Subcontractor's retainage shall
also be reduced when the Subcontractors Work has been so reduced by the Owner.
However if the Subcontractor does not provide such bond or security, the rare of
retainage shall be ten percent ~ [10%)
5.2.3 TIME OF APPLICATION. The Subcontractor shall submit progress payment
applications to the Contractor no later than the 25th day of each payment period
indicating work performed up to and including the last day of the payment period
indicating work completed and. to the extent allowed under Subparagraph 5.2.4.
costs for materials suitably stored during the preceding payment period.
5.2.4 STORED MATERIALS. Unless otherwise provided in the Contract
Documents. and if approved in advance by the Owner. applications for payment may
include materials and equipment not incorporated in the Subcontractor's Work but
delivered to and suitably stored at the site or at some other location agreed
upon in writing. Approval of payment applications for such stored items on or
off the site shall be conditioned upon submission by the Subcontractor of bills
of sale and applicable insurance or such other procedures satisfactory to the
Owner and Contractor to establish the Owner's title to such materials and
equipment or otherwise protect the Owner's and Contractor's interest therein.
including transportation to the site. All costs for material storage shall be
borne by the Subcontractor and are included in the Contract Price.
5.2.5 PAYMENTS. The Subcontractor expressly agrees that payment from the
Owner to the Contractor for the Subcontractor's work is a condition precedent to
the Contractor's obligation to make payment to the Subcontractor: and agrees
that no payment shall be made to the Subcontractor unless and until the
Contractor receives payment from the Owner for the Subcontractor's Work.
Payments to the Subcontractor for satisfactory performance of the
Subcontractor's Work shall be made no later than ten (10) days alter receipt by
the Contractor of payment from the Owner for the Subcontractor's Work.
5.3 FINAL PAYMENT
5.3.1 APPLICATION. Upon acceptance of the Subcontractor's Work by the
Owner, the Contractor. and if necessary, the Architect; and upon the
Subcontractor furnishing evidence of fulfillment of the Subcontractor's
obligations in accordance with the Contract Documents and Subparagraph 5 3.2.
the Contractor shall forward the Subcontractor's application far final payment
without delay.
5.3.2 REQUIREMENTS. Before the Contractor shall be required to forward the
Subcontractor's application for final payment to the Owner, the Subcontractor
shall submit to the Contractor.
(a) an affidavit that ail payrolls. bills for materials and equipment, and
other indebtedness connected with the Subcontractor's Work for which the Owner
or its property or the Contractor or the Contractor's surety might in any way be
liable. have been paid or otherwise satisfied:
(b) consent of surety to final payment. if required:
(c) satisfaction of required closeout procedures;
(d) certification that insurance required by the Contract Documents to
remain in effect beyond final payment pursuant to Paragraph 13.4 is in effect
and will not be cancelled or allowed to expire without at least thirty (30) days
written notice to the Contractor unless a longer period is stipulated in the
Contract, arid
(e) other data if required by the Contractor or other, such as receipts,
releases, and waivers of liens to the extent and in such form as may be
designated by the Contractor or Owner. Final payment shall constitute a waiver
of all claims by the Subcontractor relating to the 5ubcont:ractor's Work. but
shall in no way relieve the Subcontractor of liability for the obligations
assumed under Paragraph 9.10. or for faulty or defective work appearing after
final payment.
5.3.3 TIME OF FINAL PAYMENT. Final payment of the balance due of the
Contract Price shall be made to the Subcontractor:
(a) upon receipt of Owner's waiver of all claims related to die
Subcontractor's Work except for unsettled liens. unknown defective work. arid
non-compliance with the Contract Documents or warranties: and
(b) within seven (7) days alter receipt by the Contractor of final payment
from the Owner for such Subcontractor's Work.
<PAGE>
ARTICLE 6
CHANGES. CLAIMS AND DELAYS
6.1 CHANGES. The Contractor reserves the right to make changes. additions
and deletions to the Subcontractor's Work. All such changes shall be made
by-written order to the Subcontractor. No adjustments to the Contract Price
shall be made unless the Subcontractor has received a written Change Order from
the Contractor's authorized Representative as provided in Paragraph 7 1. The
Subcontractor shall proceed with all work directed by a Change Order whether or
not a Contract Price adjustment has been agreed upon between the Contractor and
the Subcontractor.
6.2 CLAIMS RELATING TO OWNER. With respect to changes in the
Subcontractor's Work arising from or caused by acts or omissions of the Owner.
the Subcontractor agrees that the amount of any adjustment in the Contract price
or contract time shall be limited to the adjustment received by the Contractor
from the Owner on account of the Subcontractor's Work. The Subcontractor agrees
to make all claims resulting from acts or omissions of the Owner n the same
manner and within the time limits provided in the Contract Documents for like
claims by the Contractor upon the Owner: and Subcontractor agrees to make such
claims in sufficient time for the Contractor to make such claims against the
Owner in accordance with the Contract Documents. The Contractor agrees to permit
the Subcontractor. at the Subcontractor's expense. to prosecute a claim in the
name of the Contractor for the use and benefit of the Subcontractor in the
manner provided in the Contract Documents for like claims by the Contractor upon
the Owner.
6.3 CLAIMS RELATING TO CONTRACTO~ The Subcontractor shall give the
Contractor written notice of all claims not included in Paragraph 6.2 within
five (5) days of the occurrence of the event for which claim is made: otherwise.
such claims shall be deemed waived. All unresolved claims, disputes and other
matters in question between the Contractor and the Subcontractor not relating to
claims included in Paragraph 6 2 shall be resolved in the mariner provided in
Article 14.
6.4 ADJUST~~NT LN CONTRACT PRICE. If a Subcontract Change Order requires an
adjustment in the Contract Price. the adjustment shall be established by one of
the following methods:
1. mutual agreement on a lump sum with sufficient information to
substantiate the amount:
2. unit prices already established in the Contract Documents or if not
established by the Contract Documents then established by mutual agreement for
this adjustment; or
3. a mutually determined cost plus allowance for overhead and profit as
specified in Rider A.
6.5 SUBSTANTIATION OF ADJUSTMENT. If the Subcontractor does not respond
promptly or disputes the method of adjustment. the method and the adjustment
shall be determined by the Contractor on the basis of reasonable expenditures
and savings of those performing the Work attributable to the change, including,
in the case of an increase in the Contract Price. an allowance for overhead and
profit of as specified in Rider A.
The Subcontractor shall maintain for the Contractor's review and approval
an appropriately itemized and substantiated accounting of the following items
attributable to the Subcontract Change Order:
1. labor costs. including Social Security, health, welfare. retirement and
other fringe benefits as normally retired. and state workers' compensation
insurance;
2. costs of materials. supplies. and equipment. whether incorporated or
consumed in the Work. including transportation costs;
3. costs of renting, either from the Contractor or from others, of'
machinery and equipment other than hand tools;
4. costs of bond and insurance premiums, permit fees and taxes attributable
to the change; and
5 costs of additional supervision and field office personnel services
necessitated by the change.
6.6 DELAY. If the progress of the Subcontractors Work is substantially
delayed without the fault or responsibility of the Subcontractor, then the time
for the Subcontractor's Work shall be extended by Subcontract Change Order to
the extent outlined by the Contractor under the Contract Documents; and the
Schedule of Work shall be revised accordingly.
<PAGE>
The Contractor shall not be liable to the Subcontractor for any damages or
additional compensation as a consequence of delays caused by any person not a
party to this Agreement unless the Contractor has first recovered the same on
behalf of understood and agreed by the Subcontractor that apart from recovery
from said person. the Subcontractor's sole and exclusive remedy for delay shall
be an extension in the time for performance of the Subcontractor's Work.
6.7 UQUIDATED DAMAGES. If the Contract Documents provide for liquidated or
other damages for delay beyond the completion date set forth in the Contract
Documents, and such damages are assessed. then the Contractor may assess same
against the Subcontractor in proportion to the Subcontractor's share of
responsibility for such delay However the amount of such assessment shall not
exceed the total amount assessed against the Contractor.
Nothing set forth herein shall limit the Subcontractor's liability to the
Contractor for the Contractor's actual delay damages caused by the
Subcontractor's delay. The Subcontractor shall be liable to the Contractor for
the Contractor's actual damages caused by the Subcontractor's delay.
ARTICLE 7
CONTRACTOR'S OBLIG.AT~~NS
7.1 AUTHORIZED REPRESENTATIVE. The Contractor shall designate one or more
persons who shall be the Contractor's authorized representative(s) on-site and
off-site. Such authorized representative(s) shall be the only person(s) the
Subcontractor shall look to for instructions, orders and/or directions, except
in an emergency.
7.2 STORAGE AREAS. The Contractor may allocate adequate storage areas. if
available. for the Subcontractor's materials and equipment during the course of
the Subcontractor's Work.
7.3 TIMELY COMMUNICATIONS. The Contractor shall transmit. with reasonable
promptness. all submittals, transmittals. and written approvals relating to the
Subcontractor's Work.
7.4 NON-CONTRACTED SERVICES. The Contractor agrees, except as otherwise
provided in this Agreement, that no claim for non-contracted construction
services rendered or materials famished shall be valid unless the Contractor
provides the Subcontractor notice: (a) prior to furnishing of the services and
materials. except in an emergency affecting the safety of persons or property
(b) In writing of such claim within three (~) days of first famishing such
services or materials: and (c) the written charges for such services or material
no later than the fifteenth (15th) day of the calendar month following that in
which the claim originated.
ARTICLE 8
SUBCONTRACTOR'S OBLIGATIONS
8.1 OBLIGATIONS DERIVATIVE. The Subcontractor binds itself to the
Contractor under this Agreement in the same manner as the Contractor is bound to
the Owner under the Contract Documents arid will so bind its lower-tier
subcontractors. The Subcontractor shall make available to its lower-tier
subcontractors the Contract Documents which are binding on the lower-tier
subcontractors.
8.2 RESPONSIBILITIES. The Subcontractor shall Flemish all of the labor,
materials. equipment, and services. including, but not limited to, competent
supervision, shop drawings, samples. tools, arid scaffolding as are necessary
for the proper performance of the Subcontractor's Work in strict accordance with
and reasonable inferable from the Contract Documents arid this Agreement.
The Subcontractor shall provide a list of proposed subcontractors and
suppliers. be responsible for taking field dimensions. providing tests. ordering
of materials and all other actions as required to meet the Schedule of Work. -
8.3 SHOP DRAWINGS. The Subcontractor shall be responsible to the Contractor
for the accuracy arid conformity with the Contract Documents of its own shop
drawing and other submittals that pertain to its work. in the same manner as the
Contractor is responsible therefore to the Owner. Shop drawing, or their
approval by the Contractor. shall not be deemed to authorize deviations or
substitutions from the requirements of the Contract Document.
8.4 INCONSISTENCIES AND OMISSIONS. Should inconsistencies or omissions
related to the Subcontractor's Work appear in this Agreement or in the Contract
Documents, the Subcontractor shall notify the Contractor in writing within three
(3) working days of the Subcontractor's discovery thereof.
<PAGE>
8.5 TEMPORARY SERVICES. The Subcontractor shall furnish all temporary
services and/or facilities necessary to perform its work. exceed as provided in
Article 16. Said article also identifies those common temporary services. if
any, which are to be furnished by the Subcontractor.
8.6. COORDINATION. me Subcontractor shall.
(a) cooperate with the Contractor and all others whose work may interfere
with the Subcontractor's Work:
(b) specifically note and immediately advise the Contractor of any such
interference with the Subcontractor's Work: arid (c) participate in the
preparation of coordination drawings and work schedules in areas of congestion.
8.7 AUTHORIZED REPRESENTATIVE. The Subcontractor shall designate one or
more persons who shall be the authorized Subcontractor's representative(s)
on-site and off-site. Such authorized representative(s) shall be the only
persons) to whom the Contractor shall issue instructions. orders or directions.
except in an emergency.
8.8 PROVISION FOR INSPECTION. The Subcontractor shall notify the Contractor
when portions of the Subcontractor's Work are ready for inspection. The
Subcontractor shall at all times furnish the Contractor and its representatives
adequate facilities for inspecting materials at the site or any place where
materials under this Agreement may be in the course of preparation. process.
manufacture or treatment.
The Subcontractor shall furnish to the Contractor. in such detail and as
often as required. full reports of the progress of the Subcontractor's work
irrespective of the location of such work.
8.9 CLEANUP. The Subcontractor shall follow the Contractor's cleanup and
safety directions: and shall at all times keep the building and premises free
form debris and unsafe conditions resulting from the Subcontractor's Work: and
shall broom clean each work prior to discontinuing work in the same.
If the Subcontractor fails to immediately commence compliance with cleanup
duties within twenty-four (24) hours after written notification from the
Contractor of non-compliance. the Contractor may implement such cleanup measures
without further notice and deduct the cost thereof from any amounts due or to
become due the Subcontractor.
8.10 SAFETY. The prevention of accidents on or in the vicinity at its Work
is the Subcontractor's responsibility. even if the Contractor establishes a
safety program for the entire Project. Subcontractor shall establish a safety
program implementing safety measures. policies and standards conforming to those
required or recommended by governmental and quasi-governmental authorities
having jurisdiction and by the Contractor and Owner. including, but not limited
to. requirements imposed by the Contract Documents. Subcontractor shall comply
with the reasonable recommendations of insurance companies having an interest in
the Project. and shall stop any part of the Work which the Contractor deems
unsafe until corrective measures satisfactory to Contractor shall have been
taken. The Contractors failure to stop Subcontractor's unsafe practices shall
not relieve Subcontractor of the responsibility therefor. Subcontractor shall
notify the Contractor immediately following any accident and promptly confirm
the notice in writing by the subcontractor. A detailed written report shall be
furnished if requested by the Contractor. Subcontractor shall indemnity the
Contractor for fines, damages. or expenses incurred by the Contractor because of
the Subcontractor's failure to comply with safety requirements.
8.11 PROTECTION OF THE WOR~ The Subcontractor shall take necessary
precautions to properly protect the Subcontractor's Work and the work of others
from damage caused by the Subcontractor's operations. Should the Subcontractor
cause damage to the Work or property of the Owner. the Contractor or others. the
Subcontractor shall promptly remedy such damage to the satisfaction of the
Contractor, or the Contractor may so remedy and deduct the cost thereof from any
amounts due to or become due the Subcontractor. -
8.12 PERMITS. FEES AND LICENSES. The Subcontractor shall give adequate
notices to authorities pertaining to the Subcontractor's Work and secure and pay
for all permits fees. licenses. assessments, inspections and taxes necessary to
complete the Subcontractor's Work in accordance with the Contract Documents and
this Agreement.
8.13 SUBCONTRACTOR ASSIGNMENT OF WORK~ The Subcontractor shall not assign
the whole nor any part of the Subcontractor's Work without prior written
approval of the Contractor. The Contractor's approval shall not be unreasonably
withheld. Lower-tier subcontractors and suppliers previously approved by the
Contractor may be listed in Article 16.
<PAGE>
8.14 NON-CONTRACTED SERVICES. The Subcontractor agrees. except as otherwise
provided in this Agreement. that no claim for non-contracted construction
services rendered or materials furnished shall be valid unless the Subcontractor
provides the Contractor notice:
(a) prior to furnishing of the services or materials. except in an
emergency affecting the safety of persons or property; (b) in writing of such
claim within three (3) days of furnishing such services or materials; and (c)
the written charge for such services or materials no later than the fifteenth
(15th) day of the calendar month following that in which the claim originated.
8.15 MATERIALS SAFETY. To the extent that pollutants. hazardous or toxic
substances, hazardous waste. asbestos. or PCB's. the Subcontractor shall comply
with all provisions of federal. state or local laws or regulations pertaining to
such materials.
ARTICLE 9
SUBCONTRACT PROVISIONS
9.1 LAYOUT Responsibility AND LEVELS. The Subcontractor shall lay out and
be strictly responsible for the accuracy of the Subcontractor's Work and for any
loss or damage to the Contractor or others by reason of the subcontractor's
failure to set out or perform its work correctly. The Subcontractor shall
exercise prudence so that the actual final finish surfaces. When the
subcontractor installs work which is on top of another trades work he shall
assure himself of the acceptability of that trades work.
9.2 WORICYIANSHIP. Every part of the Subcontractor's work shall be executed
in strict accordance with this Agreement and the Contract Documents in the most
sound. workmanlike. and substantial manner. All workmanship shall be of the best
of its several kinds, and all materials used in the Subcontractor's Work shall
be furnished in ample quantities to facilitate the proper and expeditious
execution of the work. and shall be new except such materials as may be
expressly provided in the Contract Documents to be otherwise.
9.3 MATERIALS FUR~NISHED BY OTHERS. In the event the scope of the
Subcontractor's Work includes installation of materials or equipment furnished
by others, it shall be the responsibility of the Subcontractor to examine the
items so provided thereupon handle. store and install the items with such skill
and care as to ensure a satisfactory and proper installation. Loss or damage due
to acts of the Subcontractor shall be deducted from any amounts due or become
due the Subcontractor.
9.4 SUBSTITUTIONS. \.'o substitutions shall be made in the Subcontractor's
Work unless permitted in the Contract Documents and only then upon the
Subcontractor first receiving all approvals required under the Contract
Documents for substitutions. The Subcontractor shall indemnify. the Contractor
as a result of such substitutions, whether or not the Subcontractor has obtained
approval thereof.
9.5 USE OF CONTRACTOR'S EQUIPMENT. The Subcontractor. its agents.
employees. subcontractors. or suppliers shall not use the Contractor's equipment
without express written permission of the Contractor's designated
representative.
If the Subcontractor or any of its agents, employees. suppliers or
lower-tier subcontractors utilize any machinery, equipment. tools. scaffolding,
hoists. lifts or similar items owned. leased or under the control of the
Contractor. the Subcontractor shall defend. indemnify and be liable to the
Contractor as provided in Article 12 for any loss or damage (including personal
injury or death) which may arise from such use.
9.6 CONTRACT BOND REVIEW. The Contractors Payment Bond for the Project. if
any, may be reviewed and copied by the Subcontractor.
9.7 PRIVITY. Until final completion of the Project the Subcontractor agrees
not to perform any work directly for the Owner or any tenants thereof, or deal
directly with the Owner's representatives in connection with the Project. unless
otherwise directed in writing by the Contractor. All Work for this Project
performed by the Subcontractor the Subcontractor shall be processed and handled
exclusively by the Contractor.
9.8 SUBCONTRACT BOND. If a Performance or Payment Bond is not required of
the Subcontractor under Article 16. then within the duration of this Agreement,
the Contractor may require such bonds before work is started and the
Subcontractor shall provide the same. Said bonds shall be in the full amount of
this Agreement in a form and by a surety satisfactory to the Contractor. The
Subcontractor shall be reimbursed for cost for same when such cost is paid by
the Owner.
<PAGE>
In the event the Subcontractor shall fail to provide promptly such
requested bones. the Contractor may terminate this Agreement i5 accordance with
Paragraph 10.1 of this Agreement.
9.9 WARRANTY. The Subcontractor warrants its work against all deficiencies
and defects in materials and/or workmanship and as called for in the Contract
Documents. The Subcontractor agrees to satisfy such warranty obligations which
appear within the warranty period established in the Contract Documents without
cost to the Owner or the Contractor. If no warranty is required of the
Contractor in the Contract Documents. then the Subcontractor shall warrant its
work as described above for the period or' one year form the date of acceptance
of the Subcontractor's Work. The Subcontractor further agrees to execute prior
to final payment any special warranties that shall be required for the
Subcontractor's Work.
ARTICLE 10
RECOURSE BY CONTRACTOR
10.1 FAILURE OF PERFORMANCE.
10.1.1 NOTICE TO CURE. if the Subcontractor refuses or fails to supply
enough properly skilled workers, proper materials, or maintain the Schedule of
Work. or it fails to make prompt payment for its workers. lower-tier
subcontractors or suppliers. disregards laws. ordinances. rules. regulations. or
orders or public authority having jurisdiction. or otherwise fails to comply
with any provision of this Agreement, the Subcontractor may be deemed in default
of this Agreement upon written notice from the Contractor. If the Subcontractor
fails within three (3) working days after written notification to commence and
continue satisfactory correction of such default with diligence an promptness.
then the Contractor without prejudice to any rights or remedies, shall have the
right to any or all of the following remedies:
(a) supply such number of workers and quantity of materials. equipment and
other facilities as the Contractor deems necessary for the completion of the
Subcontractor's Work or any part thereof which the Subcontractor has failed to
complete or perform after the aforesaid notice; and charge the cost thereof to
the Subcontractor who shall be liable for the payment of same including
reasonable overhead. profit and attorney's fees: (b) contract with one or more
additional contractors to perform such part of the Subcontractor's Work as the
Contractor shall determine will provide the most expeditious completion of the
total Work and charge the cost thereof the Subcontractor: (c) withhold payment
of any money's due the Subcontractor pending corrective action in amounts
sufficient to cover losses and compel performance to the extend required by and
to the satisfaction of the Contractor: and (d) in the event of an emergency
affecting the safety of persons or property. the Contractor may proceed as above
without notice.
10.1.2 TERMINATION BY CONTRACTO~ If the Subcontractor fails to commence and
satisfactorily continue correction of a default within three (3) working days
after written notification issued under Subparagraph 10 1.1. then the Contractor
may, in lieu of or in additions to Subparagraph 10.1.1, issue a second written
notification, to the Subcontractor arid its surety, if any, terminating this
Agreement. Upon termination. the Contractor shall. without limitation. have the
following rights and remedies:
(a) The Contractor may take and use any materials, implements, equipment,
appliances or tools furnished by or belonging to the Subcontractor and located
at the Project.
(b) The Contractor may also furnish those materials. equipment and/or
employ such workers or subcontractors as the Contractor deemed necessary to
maintain the orderly progress of the Work.
(c) All costs incurred by the Contractor in performing the Subcontractor's
Work, including reasonable overhead. profit and attorney's fees, shall be
deducted from any moneys due or become due the Subcontractor. The Subcontractor
shall be liable for the payment of any amount by which such expenses may exceed
the unpaid balance of the Contract Price.
10.2 TERMINATION FOR CONVENIENCE. The Contractor shall have the right at
any time by written notice to the Subcontractor, to terminate this Agreement and
require the Subcontractor to cease work hereunder; in which case, provided the
Subcontractor be not then in default. the Contractor shall pay the Subcontractor
the reasonable cost of the Subcontractor's Work plus a reasonable profit thereon
as performed to the date of such termination arid the Subcontractor shall
furnish all records and documents in order for the Contractor to determine the
costs of the
<PAGE>
work. The Subcontractor shall furnish all records and documents in order for the
Contractor to determine the costs of the work. The Subcontractor shall not be
entitled to anticipated profits on work unperformed or on materials or equipment
unfurnished.
10.3 BANKRUPTCY
10.3.1 TERMINATE ABSENT CURE. If Subcontractor files a petition under the
Bankruptcy Code. this Agreement shall terminate if the Subcontractor or the
Subcontractor's trustee rejects the Agreement or, if there has been a default.
the Subcontractor is unable to give adequate assurance that the Subcontractor
will perform as required by this Agreement or otherwise is unable to comply with
the requirements for assuming this Agreement under the applicable provisions of
the Bankruptcy Code.
10.3.2 INTERMEDARIES. If the Subcontractor is not performing in accordance
with the Schedule of Work at the time a petition in bankruptcy is filed, or at
any subsequent time. the Contractor. while awaiting the decision of the
Subcontractor or its Trustee to reject or to assume this Agreement and provide
adequate assurance of its ability to perform hereunder, may avail itself of such
remedies under this Article as are reasonably necessary to maintain the Schedule
of Work. The Contractor may offset against any sums due or become due the
Subcontractor all costs incurred in pursuing any of the remedies provided
hereunder. including, but not limited to. reasonable overhead. profit. and
attorney's fees. The Subcontractor shall be liable for the payment of any amount
by which such expense may exceed the unpaid balance of the Contract Price.
10.4 SUSPENSION BY OWNER, Should the Owner suspend its contract with the
Contractor or any part which includes the Subcontractor's Work. the Contractor
shall so notify the Subcontractor in writing and upon written notification the
Subcontractor shall immediately suspend the Subcontractor's Work. In the event
of such Owner suspension. the Contractor's liability to the Subcontractor is
limited to the extent of the Contractor's recovery on the Subcontractor's behalf
under the Contract Documents. The Contractor agrees to permit the Subcontractor,
at the Subcontractor's expense. to prosecute a claim in the name of the
Contractor for the use and benefit of the Subcontractor in the manner provided
in the Contract Documents for like claims by the Contractor upon the Owner.
10.5 TER,MINATION BY OWNER. Should the Owner terminate its contract with
the Contractor or any part which includes the Subcontractor's Work, the
Contractor shall so notify the Subcontractor in writing and upon notification.
this Agreement shall be terminated and the Subcontractor shall immediately stop
the Subcontractor's Work. follow all of the Contractor's instructions. and
mitigate all costs. In the event of such Owner termination, the Contractor's
liability to the Subcontractor is limited to the extent to the Contractor's
recovery on the Subcontractor's behalf under the Contract Documents. The
Contractor agrees to permit the Subcontractor. at the Subcontractor's expense.
to prosecute a claim in the name of the Contractor for the use and benefit of
the Subcontractor in the manner provided in the Contract Documents for like
claims by the Contractor upon the Owner.
10.6 ASSIGNMENT OF SUBCONTRACT. The Contractor may assign this Subcontract
at any time. Subcontractor hereby consents to such assignment and agrees to be
bound to the assignee by the terms of this Subcontract.
1O.7 SUSPENSION BY CONTRACTOIL The Contractor may order the Subcontractor
in writing to suspend. delay, or interrupt all or any part of the
Subcontractor's Work for such period of time as may be determined to be
appropriate for the convenience of the Contractor. Phased or interrupted Work
when required or scheduled shall not be deemed a suspension of Work. The
Subcontractors shall notify the Contractor in writing within ten (10) working
days after receipt of the Contractor's order of the effect of such order upon
the Subcontractor's Work. To the extent allowed the Contractor under the
Contract Documents, the Contract Price or contract time shall be adjusted by
Subcontract Change Order for any increase in the time of cost of performance of
this Agreement caused by such suspension. delay or interruption. No claim under
this Article shall be allowed for any cost incurred more than ten (10) working
days prior to the Subcontractor's notice to Contractor. Neither the Contract
Price nor the contract time shall be adjusted under this Article for any
suspension, delay or interruption to the extent that performance would have been
so suspended, delayed, or interrupted by the fault or negligence of the
Subcontractor or by a cause for which Subcontractor would have been responsible.
The Contract Price shall not be adjusted under this Article for any suspension.
delay or interruption to the extent that performance would have been suspended.
delayed or interrupted by a cause for which
<PAGE>
the Subcontractor would have been entitled only to a time extension under this
Agreement.
10.8 WRONGFUL EXERCISE. If the Contractor wrongfully exercises any option
under this Article. the Contractor shall be liable to the Subcontractor solely
for the reasonable value of work performed by the Subcontractor prior to the
Contractor's wrongful action. including reasonable overhead and profit on the
Work performed less prior payments made.
ARTICLE 11
LABOR RELATIONS
11.1 LABOR HARMONY. Subcontractor must work in harmony with other trades
and other contractors and subcontractors on site. Subcontractor's labor disputes
must not interfere with the purpose of the work and must be resolved promptly.
if labor disputes involving the Subcontractor adversely impact the project, the
Contractor may take corrective action under the provisions of Article 10.
ARTICLE 12
INDEMNIFICATION
12.1 SUBCONTRACTOR'S PERFOR~VIANCE. To the fullest extent permitted .by
law, the Subcontractor shall defend. indemnify and hold harmless. the Contractor
(including the affiliates. parents and subsidiaries. their agents and employees
and other contractors and subcontractors and all of their agents and employees
and. when required of the Contractor by the Contract Documents, the Owner, the
Architect. Architect's consultants, agents and employees from and against all
claims, damages, loss and expenses. including but not limited to attorneys fees.
arising out of our resulting from the performance of the Subcontract provided
that:
(a) any such claim. damage, loss or expense is attributable to bodily
injury, sickness, disease, or death, or to injury to or destruction of tangible
property (other than the Sub-contractor's Work itself) including the loss of use
resulting therefrom, to the extent caused or alleged to be caused in whole or
part in any negligent act or omission of the Subcontractor or anyone directly or
indirectly employed by the Subcontractor or for anyone for whose acts the
Subcontractor may be liable, regardless of whether it is caused in part by a
party indemnified hereunder:
(b) such obligation shall not be construed to negate. or abridge. or
otherwise reduce any other right or obligation or indemnity which would
otherwise exist as to any parry of person described in this Article 12.
12.2 NO LIMITATION UPON LIABILITY. In any and all claims against the Owner.
the Architect Architects consultants. agents and employees. the Contractor
(including its affiliates, parents and subsidiaries) and other contractors or
subcontractors, or any of their agents or employees. by any employee of the
Subcontractor. anyone directly or indirectly employed by the Subcontractor or
anyone for whose acts the Subcontractor may be liable. the indemnification
obligation under this Article 12 shall not be limited in any way be any
limitation on the amount or type of damages, compensation or benefits payable by
or for the Subcontractor under worker's or workman's compensation acts,
disability benefit acts or other employee benefit acts.
12.3 COMPLIANCE WITH LAWS. The Subcontractor agrees to be bound by, and at
its own cost comply with all federal, state and local laws, ordinances and
regulations (hereinafter collectively referred to as "laws") applicable to the
Subcontractor's Work including, but not limited to. equal employment
opportunity, minority business enterprise. women's business enterprise, safety
and all other laws with which the Contractor must comply according to the
Contract Documents. The Subcontractor shall be liable to the Contractor and the
Owner for all loss. cost and expense attributable to any acts of commission or
omission by the Subcontractor. its employees and agents resulting from the
failure to comply therewith, including, but not limited to, any fines, penalties
or corrective measures.
12.4 PATENTS. Except as otherwise provided by the Contract Documents. the
Subcontractor shall pay all royalties and license fees which may be due on the
inclusion of any patented materials in the Subcontractor's Work. The
Subcontractor shall defend all suits for claims for infringement of any patent
rights arising out of the Subcontractor's Work. which may be brought against the
Contractor or Owner, and shall be liable to the Contractor and Owner for all
loss. including all costs, expenses, and attorney's fees.
l2.5 PAYROLL AND MISCELLANEOUS TAXES. Subcontractor hereby accepts and
assumes full and exclusive liability for the payment of all state and municipal
sales and materials taxes and contributions. taxes or premiums which may be
payable or required under all applicable laws including
<PAGE>
but without limitation the State Unemployment Insurance Act. Federal Social
Security Act. and any applicable unemployment 'insurance. compensation or
reserve law, as to all employees engaged in the performance of the Work. The
Subcontractor further agrees to sign an agreement in form and content as may be
provided in regulations promulgated by the State or other authority having
jurisdiction acting under or pursuant to applicable law and/or regulations.
including' but not limited to the furnishing of such assurance by bond.
guaranty, financial statement or other instrument as may be prescribed and
required under such regulations. in order to effectively vest in the
Subcontractor. and relieve the Contractor. from liability for contributions owed
by reason of wages paid to employees of the Subcontractor. Subcontractor shall
comply with the rules and regulations which may be issued by the Commissioner of
Internal Revenue. Secretary of the Treasury, or their designee. for the
enforcement of the Federal Social Security Act as to employees engaged in the
performance of the Work and the Subcontractor shall indemnify and hold harmless
the Contractor against any claim or demand or liability regardless of what
taxing authority or other parry asserts that Subcontractor has failed to make
the subject contribution) for contributions or taxes owed by reason of wages
paid to employees of the Subcontractor engaged in the performance of the Work.
ARTICLE 13
INSURANCE
13.1 SUBCONTRACTOR'S INSURANCE. Prior to start of the Subcontractor's Work.
the Subcontractor shall procure for the Subcontractor's Work and maintain in
force Worker's Compensation Insurance. Employer's Liability Insurance on an
occurrence basis. and all insurance required of the Contractor under the
Contract Document. The Contractor. Owner and other parties as designated in the
Contract Documents shall be named as additional insured on each of these
policies except for Worker's Compensation. This insurance shall include
contractual liability insurance covering the Subcontractor's obligations under
Article 12.
13.2 LMINIMUM LIMITS OF LIABILITY. The Subcontractor's Comprehensive or
Commercial Liability Insurance and Comprehensive Automobile Liability Insurance.
as required by Paragraph 13.1, shall be written with limits of liability as
shown on attached Rider B.
13.3 NUMBER OF POLICIES. Comprehensive or Commercial General Liability
Insurance and other liability insurance may be arranged under a single policy
for the full limits required or by a combination of underlying policies with the
balance provided by an Excess or Umbrella Liability Policy',
13.4 CANCELLATION. RENEWAL OR MODIFICATION. The Subcontractor shall
maintain in effect all insurance coverage required under this Agreement at the
Subcontractor's sole expense and with insurance companies acceptable to the
Contractor. All insurance policies shall contain a provision that the coverages
afforded thereunder shall not be cancelled or not reduced. nor restrictive
modifications added. until at least thirty ~30) days prior written notice has
been given to the Contractor unless otherwise specifically required in the
Contract Documents. Certificates of Insurance. or certified copies of policies
acceptable to the Contractor. shall be filed with the Contractor prior to the
commencement of the Subcontractor's Work. In the event the Subcontractor fails
to obtain or maintain any insurance coverage required under this Agreement, the
Contractor may purchase such coverage and charge the expense thereof to the
Subcontractor, or terminate this Agreement. The Subcontractor shall continue to
carry completed operations liability insurance for at least two years after
final payment. The Subcontractor shall fourths the Contractor evidence of such
insurance at final payment and one year thereafter.
13.5 BUILDER'S RISK INSURANCE. Upon written request of the Subcontractor.
the Contractor shall provide the Subcontractor with a copy of the Builder's Risk
policy of insurance or any other equipment insurance in force for the Project
and procured by the Contractor. The Subcontractor shall satisfy itself prior to
commencement of the Subcontractor's Work. If the Owner or Contractor have not
purchased Builder's Risk insurance for the full insurable value of the
Subcontractor's Work less a reasonable deductible, then the Subcontractor may
procure such insurance as will protect the interests of the Subcontractor, its
subcontractors and their subcontractors in the Work, and, by appropriate Change
Order. the cost of such additional insurance shall be reimbursed to the
Subcontractor.
If not covered under the Builder's Risk policy of insurance or any other
property or equipment insurance required by the Contract Documents. the
Subcontractor shall procure and maintain at the Subcontractor's own expense.
property and equipment
<PAGE>
insurance for portions of the Subcontractor's Work stored off the site or
in transit. when such portions of the Subcontractor's Work are to be included in
an application under Article 5.
13.6 ENDORSEMENT. If the policies of insurance referred to in this Article
require an endorsement to provide for continued coverage where there 5 a waver
of subrogation. the owners of such policies will cause them to be so endorsed.
ARTICLE 14
ARBITRATION
14.1 AGREEMENT TO ARBITRATE. All claims. disputes. and matters in question
arising out of. or relating to, this Agreement or the breach thereof. except for
claims which have been waived by the making or acceptance of final payment and
except for the claims described in Paragraphs 14 2 and 14.3, shall be decided by
arbitration in accordance with the Construction Industry Arbitration Rules of
the American arbitration Association then in effect unless the parties mutually
agree otherwise. Notwithstanding other provisions in the Agreement. this
agreement to arbitrate shall be governed by the Federal Arbitration Act.
14.2 OWNER RELATED CLAIMS. If the Subcontractor's demand for arbitration,
Is related, in whole or in part. to any claim between the Owner and the
Contractor. then the Subcontractor's claim shall not be the subject of a
separate arbitration proceeding. Instead the Subcontractor shall. at its own
expense. present such claim to the forum in which the Owner and the Contractor
are proceeding on such claim; and the Subcontractor shall be conclusively bound
by the decision of that forum which respect to the Subcontractor's claim.
14.3 EXCEPTIONS. The agreement to arbitrate shall not apply to any claim of
contribution or indemnity asserted by one party to this Agreement against the
other parry and arising out of an action brought in a state or federal court or
in arbitration by a person who is under no obligation to arbitrate the subject
matter of such action with either of the parties hereto or does not consent to
such arbitration; or the Subcontractor's claim is related. in whole or in part,
to any claim between the Owner and the Contractor.
14.4 APPL1CABILITY OF ARBITRATION. In any dispute arising over the
application of this Article. the question of arbitrability shall be decided by
the appropriate court and not by arbitration.
14.5 NOTICE OF DEMAND. Notice of the demand for arbitration shall be tiled
in writing with the other party to this Agreement and with the American
Arbitration Association. The demand for arbitration shall be made as required in
the Contract Documents or within a reasonable time after written notice of the
claim. dispute or other matter in question would be barred by the applicable
statute of limitation. whichever shall first occur. The location of the
arbitration proceedings shall be the location of the Contractor's principal
place of business.
14.6 AWARD. The award rendered by the arbitrator(s) shall be final and
judgment may be entered upon it in accordance with applicable law in any court
having jurisdiction.
14.7 WORK CONTINUATION AND PAYMENT. Unless otherwise agreed in writing, the
Subcontractor shall carry on the Work and maintain the Schedule of Work pending
arbitration. !f the Subcontractor is continuing to perform, the contractor shall
continue to make payments in accordance with this Agreement.
14.8 NO LIMITATION RIGHTS OR REMEDIES. Nothing in this Article shall limit
any rights or remedies not expressly waived by the Subcontractor which the
Subcontractor may have under lien laws or payment bonds.
14.9 SAME ARBITRATIONS. To the extent not prohibited by their contracts
with others. the claims and disputes of the Owner. Contractor. Subcontractor and
other subcontractors involving a common question of fact or law shall be heard
by the same arbitrator(s) in a single proceeding.
ARTICLE 15
CONTRACT INTERPRETATION
15.1 LAW AND EFFECT. This Agreement shall be governed by the laws of the
State in which the Project is located.
15.2 SEVERABILITY AND WAIVEIL The partial or complete invalidity of any one
or more provisions of this Agreement shall not affect the validity or continuing
once and effect of any other provision. The failure of either party hereto to
insist, in any one or more instances, upon the performance of any of the terms,
covenants or conditions of this Agreement or to exercise any right herein. shall
not be
<PAGE>
construed as a waiver or relinquishment of such term. covenant. condition
or right as respects further performance.
15.3 TITLES. The titles given to the Articles of this Agreement are for
ease of reference only and shall not be relied upon or cited for any other
purpose.
15.4 ENTIRE AGREEMENT. This Agreement is solely for the benefit of the
signatories hereto and represents the entire and integrated agreement between
the parties hereto and supersedes all prior negotiations, representations. or
agreements. either written or oral.
ARTICLE 16
SPECIAL PROVISIONS
16.1 PRECEDENCE. It is understood the work to be performed under this
Agreement including the terms and conditions thereof. is as described in
Articles I through 16 together with all attached Riders.
16.2 SCOPE OF WORK. The Subcontractor shall perform all work necessary or
incidental to complete the Work as described in Article I for the Project in
strict accordance with this Agreement, the Contract Documents. and as more
particularly set forth in Rider A 'Scope of Work".
16.3 OTHER SPECIAL PROViSi6NS. (Insert here any special provisions required
by this Agreement.)
16.4 CONTRACT DOCUMENTS. The Contract Documents shall consist of the
following documents: (List applicable Contract Drawings including
specifications. drawings, addenda modifications. and exercised alternates.
Identify with general description. sheet numbers. and latest date including
revisions.)
RIDER B INSURANCE REQUIREMENTS MINIMUM LIMITS OF LIABILITY.
RIDER C CAPITAL IMPROVEMENT/OR TAX EXEMPT CERTIFICATES.
RIDER D- DRAWINGS AND SPECIFICATIONS.
RIDER E - HUMPHREYS & HARDINGS, INC. SPECIAL PROVISIONS
RIDER F - SCHEDULE
<PAGE>
PERMANENT MISSION
TO THE REPUBLIC OF KOREA
335-337 E. 45th STREET
NEW YORK, NEW YORK
RIDER 'A'
#05100 STRUCTI~~L STEEL & METAL DECK WORK
Provide all labor, materials, equipment, engineering and supervision to perform
Structural Steel & Metal Deck Work to include, but not limited to production,
fabrication, delivery and erection of structural steel and metal decking
assemblies in accordance with the following specification sections:
DIVISION 1 - GENERAL REQUIREMENTS - ALL SECTIONS
STRUCTURAL DRAWN1G BOOK P4560400
SPECIFICATION SECTION 05100 STRUCTURAL STEEL
SPECIFICATION SECTION 05300 METAL DECK AND STUD SHEAR CONNECTORS
and all related design documents shown in Rider 'D' of this agreement as
prepared by Pei, Cobb, Freed & Partners.
The following work is also to be included in the Structural Steel & Metal
Decking:
A. GENERAL:
1. Labor Harmony Subcontractor shall ensure labor harmony during the course of
it work.
2. Temporary Structures and Field Offices: The Subcontractor shall construct
and maintain, in locations approved by the General Contractor, temporary
structures, offices, material sheds, storage sheds, or other similar
enclosed structures required for the performance of its work.
Subcontractor shall construct or place temporary structures on, or secured
to adequate foundation material. Provide connections to utility services
(telephone I fax, electric, etc.) at its own cost with the Electrical
Subcontractor. (Use of construction Managers equipment and services is not
permitted.) Subcontractor shall provide OSHA compliant steps and landings
at entrance doors as required.
3. Noise Controls: The Subcontractor shall ensure that the work will be
executed in a careflil and orderly manner; with the least possible noise
or disturbance to the occupants of adjacent buildings, properties, or to
the public. Subcontractor shall ensure that gasoline and diesel fuel
operated equipment or vehicles shall be equipped with proper mufflers and
insulators so that noise will be reduced to a minimum. Subcontractor shall
ensure that pneumatic equipment shall be of a type and size, suitable for
condition of use,
<PAGE>
PERMANENT MISSION
TO THE REPUBLIC OF KOREA
3~5-337 E. 45th STREET
NEW YORK, NEW YORK
RIDER 'A'
#05100 STRUCTU~AL STEEL & METAL DECK WORK
selected for maximum noise control. Subcontractor shall utilize every
reasonable means to minimize vibration and noise. Blasting or similar
operations will not be allowed. No construction activity exceeding 75 dba
decibels as measured at the project property line shall be allowed to start
before 8:00 A.NI. or extended beyond 6:00 P~M.
4. Pest and Rodent Control: Subcontractor to perform pest and rodent
controlling activities as necessary, within its work and storage area(s)
to maintain site free of infestation during the work. These activities
must be approved by General Contractor.
5. Security: Subcontractor to secure and protect its working & storage areas,
equipment and office(s) during the course of its work.
6. Pollution Control & Cleaning: The Subcontractor shall not, in connection
with the work, discharge smoke, dust, or other contaminants into the
atmosphere or discharge any fluids or materials into any lake, river,
stream, or channel as will violate regulations of the Department of
Buildings. Control accumulated waste materials and rubbish from its work
and dispose in containers provided by the General Contractor. Burning of
materials is not permitted.
7. Maintenance: Subcontractor to provide periodic maintenance and cleaning
for its temporary facilities and equipment. The Subcontractor shall
maintain its protection in proper and safe condition and in accordance
with all applicable life & health safety codes. The Subcontractor shall
maintain access to its work and storage areas without blocking access of
subsequent trades.
8. Removal: Subcontractor to completely remove all of its temporary
facilities. Subcontractor shall clean and repair damage caused by
installation or by use of its temporary facilities. Subcontractor to
restore existing facilities and utilities used for its temporary purposes
and scheduled to remain to original condition.
9. Temporary Power: Subcontractor to provide its own power (i.e. generator) and
to include all associated standby trades for its own operations.
10. Existing Bench Mark Survey: Subcontractor will be provided with a bench
mark survey with major axis lines and elevations. All required engineering
layout from this information necessary to perform the work is by this
Subcontractor. This Subcontractor is to
<PAGE>
PERMANENT MISSION
TO THE REPUBLIC OF KOREA
335-337 E. 45th STREET
NEW YORK, NEW YORK
RIDER 'A'
05l00 STRUCTURAL STEEL & 'METAL DECK WORK
deliver to the General Contractor an anchor bolt survey prepared by a
licensed surveyor and which shows the true position of each anchor bolt as
well as the bolt pattern required by the steel fabricator. This survey must
be delivered at least direct days prior to steel erection.
11. As-Built Survey: Subcontractor is to provide a complete engineers survey
upon completion of its work, from an approved licensed surveyor.
12. Maintaining Access to Site: The Subcontractor shall maintain adequate
provisions to facilitate access and mobility of fire apparatus, and other
emergency and / or service vehicles, equipment and personnel to the site.
13. Street Openings: The Subcontractor shall not make any street or sidewalk
openings / cuts that deviate from the Contract Documents for any reason.
14. Barriers: Furnish, install and maintain OSHA compliant barriers, as well
as barriers required to prevent public entry, to provide traffic control,
to protect the work, existing facilities, streets, trees, paths rock work,
gates, etc., from construction operations.
15. OSHA Requirements: Subcontractor to provide all labor and material for
site protection as required by local, state and OSHA rules and regulations
for any and all hazards created as a result of the work of this contract.
16. Streets: Do not close or obstruct streets, walks or other occupied or used
facilities without permission from the Department of Highways. If
permission is granted by the General Contractor, provide alternate routes
around closed or obstructed traffic ways as required by regulations.
17. Access to Work: Maintain access to site. During wet periods, the
Subcontractor shall provide site / soil stabilization where necessary to
allow for its construction equipment.
18. Dust Control: Subcontractor shall control dust at site by moistening
surfaces and / or providing other acceptable forms of dust control to
prevent dust being a nuisance. Sweep streets in the vicinity of site
entrances and exits daily, to alleviate dust and mud in the streets.
<PAGE>
PERMANENT MISSION
TO THE REPUBLIC OF KOREA
335-337E. 45th STREET
NEW YORK, NEW YORK
RIDER 'A'
#05100 STRUCTURAL STEEL & METAL DECK WORK
19. Coordination: Subcontractor shall provide all required engineering and
coordination for its work and other associated trades. It will be the
responsibility of this contract to produce coordinated layout drawings for
interface with all other related trades. As-Built conditions will be
incorporated in the same manner.
20. Existing Utilities & Structures: Subcontractor is responsible for
protecting, existing or new utilities, walls and trees. Subcontractor is
responsible for all the repair of any damage to existing utilities, walls and
trees resulting from its work.
21. Snow & Ice Removal: Subcontractor shall provide snow and ice removal
for site access for its employees
22. Cleaning: Subcontractor is responsible for all clean up of all rubbish,
generated by its workers so as to maintain a safe and clean site. General
Contractor will review the site conditions daily and notify Subcontractor of any
deficiencies.
23. Schedule of Values: Subcontractor's contract price shall be broken down
in manner acceptable to the General Contractor.
24. Adjacent Property: It is understood by this Subcontractor that the
adjacent property is not available for the storage of any material and or
equipment.
25. Master Mechanic: Subcontractor understands that the pro-rata share of
the cost of a Master Mechanic, if required, is included in the cost of this
contract. ---------------
26. Performance & Payment Bond: Subcontractors Price includes ~ costs
associated with a Performance and Payment Bond.
27. Shop Drawings: Subcontractors price includes the submission of three
(3) reproducible sepias and five (5) blue line prints. -------------
28. Privacy of the Owner: The Subcontractor acknowledges and understands
that the project is intended to house the Ambassador of the Permanent Mission of
the Government of the Republic of Korea to the United Nations. and that
therefore the utmost care must be utilized to keep all of the plans,
specifications, and drawings for the project as well as floor layouts and uses,
strictly confidential. The Subcontractor shall not divulge information
concerning the Owner of the project to anyone (except for information concerning
the project required
<PAGE>
PERMANENT MISSION
TO THE REPUBLIC OF KOREA
335-337 E. 45th STREET
NEW YORK~ NEW YORK
RIDER 'A'
#05100 STRUCTURAL STEEL & METAL DECK WORK
for applications for permits, and except to the Architect's consultants.
the Contractor, and others performing work on a need to know basis),
without the Owner's prior written consent. The Subcontractor shall obtain
similar agreements from all of its Subcontractors and Subconsultants. The
Owner reserves the right to release all information as well as to time its
release, from or content. Notwithstanding, the foregoing, this provision
shall not apply to information that is in the public domain. The provisions
of this article shall survive the expiration or termination of this
agreement.
B. STRUCTURAL STEEL -05100:
1. Subcontractors work includes all permits for its steel erection.
2. Subcontractors work includes the coordinating and furnishing of the
following items to the foundation and superstructure concrete subcontractors:
base, bearing & leveling plates, wall plates and anchor bolts and all embeded
structural items.
3. Subcontractors work includes the furnishing and installation of the
following items: beams, columns, girders, bracing, trusses, elevator separator,
hoist beams, sill angles, posts, struts and hangers support brackets, seat
angles, metal deck supports, lintels attached to structural steel, and
associated connections.
4. Subcontractors work includes galvanizing, shop priming and field touch
up as specified.
5. Subcontractors work includes a pre-installation anchor~bolt survey.
6. Subcontractors work includes four (4) anchor bolts and enlarged base
plates at the cellar level.
7. Subcontractors work includes the furnishing and installation of exposed
structural steel and two (2) coat paint finish @ top of building.
8. Subcontractors work includes the splicing, plumbing and leveling of the
cellar and 1st floor structural members as may be required to allow for the
installation of the 1st floor supported slab.
<PAGE>
PERMANENT MISSION
TO THE REPUBLIC OF KOREA
335-337 E. 45th STREET
NEW YORK, NEW YORK
RIDER 'A'
#05 OC STRUCTURAL STEEL & METAL DECK WORK
9. Subcontractor shall furnish and install OSHA double cable ~ 60" and 42"
at building perimeter.
10.Subcontractor shall furnish and install metal angles and single cable at
all interior deck openings. Subcontractor shall also provide metal decking or
plank to cover deck openings.
11.Subcontractors work includes fire watch as required.
12.Subcontractor shall supply all welding and burning certifications as
required.
13. Subcontractors work includes the supplying of mill certificates in a
timely fashion.
14. Subcontractor shall provide impending loads to be exerted on first
floor slab, for design and shoring installation bt others required for crane
installation and use.
C. METAL DECKING AIND STUD SHEAR CONNECTIONS -05300:
1. Subcontractors work includes all permits for metal deck assembly
placement.
2. Subcontractors work includes the following: Non-cellular metal decking,
flashing saddles, sumps, closure members, cover plates, metal screed ~ building
perimeter & openings, metal flashing and closure plates around all columns and
penetrations, hanger tabs, cutting and forming of holes an openings to support
temporary and permanate construction, miscellaneous supports and shoring framing
as shown on the contract documents.
3. Subcontractors work includes all field touch up as specified.
4. Subcontractors work includes shear stud ferrule removal.
D. USE OF ERECTION EQUIPMENT BY OTHER TRADES:
1. Subcontractors price includes 1/2 hour picks for the following trades
on regular time:
Plumbing - 2 Lifts
Electrical - 4 Lifts
Mechanical - 6 Lifts
Misc. Metals 5 Lifts
<PAGE>
PERMANENT MISSION
TO THE REPUBLIC OF KOREA
335-337 E. 45th STREET
NEW YORK, NEW YORK
RIDER 'A'
#05100 STRUCTUR~L STEEL & METAL DECK WORK
2. At die end of subcontractors erection period, subcontractor shall turn
over the crane to the exterior wall erector. Exterior wall erector shall
be responsible for rental and crane removal at the completion of their
work.
E. SCHEDULE/LOGISTICS:
1. The project completion date for Structural Steel & Metal Deck Work is
June 15, 1997. Subcontractor shall perform all submittals, fabrication and
installation of the work to meet the time requirements for the work as defined
by the project schedule completion date as outlined. The project schedule shown
in Rider 'F' of this agreement is to serve as a guideline for meeting the stated
end date. Any and all required refinements to this schedule, as a result of
detailed Subcontractor information, shall not entitle this Subcontractor to
additional monies for the work.
a) Subcontractor agrees to commence die submittal process immediately after
award of this contract, and Notice of Award I Letter of Intent of this contract.
b) Subcontractor will mobilize, order material and continue required
operations no later than one (1) week after Notice of Award I Letter of Intent.
c) Subcontractors work shall include two (2) mobilizations for structural
steel:
1.Approx. March 15, 1997, erect cellar & 1st floor steel, plumb & level) as
required for the installation of the 1st floor supported slab.
2.Approx. May 1, 1997, erect 2nd floor through completion of structural
steel.
d) Subcontractor shall complete metal deck work by March 15, 1996.
2. It is understood that the subcontractor cannot close 45th Street for
steel erection. Therefore subcontractors equipment and counter weight must be
contained within the 40'-0" envelope from the building to the outside dimension
of the 8'-0" parking lane. Subcontractors price shall include either of three
(3) erection methods: I.Crawling tower crane and associated cribbing & shoring.
2.Cherry picker & guy derrick. 3.Cherry picker & 140 ton Link-Belt truck crane.
<PAGE>
PERMANENT MISSION
TO THE REPUBLIC OF KOREA
335-33~, E. 45th STREET
NEW YORK, NEW YORK
RIDER 'A'
#05100 STRUCTURAL STEEL & METAL DECK WORK
F. EXCLUSIONS:
1. Sales Tax.
2. Field & mill testing & inspections. (By General Contractor)
3. Cutting & patching of concrete. ~y Superstructure Concrete
Subcontractor)
4. Setting or grouting of base & leveling plates and anchor bolts. (13y
Superstructure Concrete Subcontractor)
5. Loose lintels.(By Miscellaneoud Iron Subcontractor)
6. Superstructure Concrete shoring design & installation. (13y
Superstructure Concrete Subcontractor)
G. UNIT PRICE LIST:
The following unit prices will be used at the sole direction of the general
contractor, and are for additions and deletions to the Subcontract Scope. These
prices are inclusive of all labor, materials, waste, transportation, tools,
equipment, overhead, administrative costs and profit. The unit prices are in
effect for the life of the project.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
DESCRIPTION: UNIT ADDITION DELETION
Structural Steel:
A36 & Assemblies S/LBS 1.20/lb .90/lb
ASO & Assemblies S/LBS 1.40/lb 1.15/lb
Metal Deck:
20 gague, 2" & Shear Studs S/SF 4.00/sf 3.00/lb
Shear Studs S/EA 4.00/ea 3.00/lb
</TABLE>
Labor Units:
The following labor rates are listed by craft and classification and are to
include base wages, benefits, taxes, insurance, payroll costs, overhead and
profit.
Craft Classification Straight Time
Hourly Rate Overtime Hourly Rate
Operator 15 Oiler $85/hr
Operator 14 Journeyman $105/hr
Local 40 Foreman $110/hr
journeyman $108/hr
Apprentice $100/hr
Welder $123/hr
<PAGE>
PERMANENT MISSION
TO THE REPUBLIC OF KOREA
335-337 E. 45th STREET
NEW YORK, NEW YORK
RIDER 'A'
#05100 STRUCTURAL STEEL & METAL DECK WORK
<TABLE>
<CAPTION>
Craft Classification
Straight Time Overtime
Hourly Rate Hourly Rate
<S> <C>
Drafts Person $60/hr
Crane $200/hr
</TABLE>
- END OF RIDER "A" -
<PAGE>
PERMANENT MISSION
TO THE REPUBLIC OF KOREA
335-337 E. 45th STREET
NEW YORK. NEW YORK
RIDER 'B'
INSURANCE REQUIREMENTS
The subcontractor will be required to execute H&H standard subcontract from
which is available for review in H&H main and job site offices which contains a
Broad Form Hold Harmless Clause. The Subcontract Form requires the Subcontractor
to carry the following insurances.
a.Worker's compensation insurance as required by State Law for all persons
employed in connection with the construction.
b.Contractor S Public Liability Insurance including Contractual Liability
Insurance against the liability assumed in the Broad Form Hold Harmless Clause.
including the Contractor S Protective Liability Insurance if the subcontractor
sublets to another all or any portion of the work with the following minimum
limits:
Comprehensive General Liability
a. Bodily Injury $2.000.000 Per Accident
b. Property Damage $1,000.000 Per Accident
c.Automobile Liability Insurance covering all owned and hired automobiles
used in connection with the work with die following limits:
a. Bodily; Injury and Property Damage
(Combined Single Limit) $3.000.000 Per Accident
Excess (Umbrella) Liability $5.000.000 Per Accident
d. Each policy of Required Subcontractor Insurance shall contain an
agreement by the insurer that such policy shall not be concealed or amended. or
any coverage reduced. without at least thirty (~0) days prior written notice by
registered mail to H&H/: and endorsement designating Humphreys & Harding Inc.
The Republic of Korea Pei Cobb Freed & Partners. The Pyne Company. Leslie E.
Robertson Associates. and Jaros Baum & Boiles as additional insured.
<PAGE>
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<PAGE>
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<PAGE>
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<PAGE>
Permanent Mission of The
Republic of Korea
335-337E. 45th Street
New York. New York
RIDER "E"
KOREAN MISSION TO THE UNITED NATIONS
1. GENERAL REOUREMFNTS:
a. These Special Provisions are in addition to the Requirements of the
General Conditions of the Construction Contract between The Republic of Korea
(ROK) and Humphreys & Harding, Inc. (General Contractor). In case of
contradictions these Special Provisions shall govern, except where specifically
noted otherwise.
b. ft is the Subcontractor's responsibility to submit and keep two (2)
copies of Certificates of Insurance with General Contractor Accounting
Department. Work cannot start until Insurance Certificates are submitted,
reviewed and approved.
c. Each Subcontractor shall be prepared to provide Insurance in accordance
with the requirements of Rider "B" of the Subcontract Agreement.
d. No payment will be made to the Subcontractor after the expiration date
noted on the latest submitted Insurance Certificate.
e. The Subcontractor, and? any lower tiered Subcontractors, warrant that
prior to the submission of their Lump Sum Proposal. a visit to the site has been
performed for the purpose of fully understanding and accepting all conditions in
and around the construction site.
f. Subcontractor agrees that this Project Site is located in an area of
high traffic congestion; and Subcontractor shall endeavor to schedule the work
so as to minimize disruption of traffic and not to incur delays to the project
schedule by reason of traffic.
g. Subcontractor agrees to abide by all terms and conditions described in
the ROK contract with General Contractor. A copy will be made available upon
reasonable notice for review at General Contractor's office during normal
working hours.
2. STORAGE OF MATERIALS:
Subcontractor is hereby notified that facilities for storage may not be
available at the job site. It is the responsibility of this Subcontractor to
make whatever arrangements may be necessary for storage offsite to insure proper
supply of materials to the job to meet
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Permanent Mission of The
Republic of Korea
335-337 E. 45th Street
New York. New York
RIDER "E"
d. Temporary toilet facilities for work persons.
e. Subcontractors may be responsible for providing hoisting for their
materials. Hoisting is to be performed during normal working hours.
Subcontractors who deliver material on off hours or on weekends / holidays will
be responsible for all required stand-by trades and costs.
f. Excluding only tests and testing performed by a Testing Engineer /
Laboratory in the employ of the (Owner, & General Contractor) the Subcontractor
shall be responsible for the execution of all tests and testing required by the
Specifications and by all Governmental Authorities having jurisdiction, and
shall pay the costs of all such tests and testing. The Subcontractor shall
submit certified results of the tests to General Contractor for the Architect's
approval. If directed in writing by General Contractor. the Subcontractor shall
provide additional tests and testing, performed by approved personnel working
under the direction and supervision of General Contractor. The additional tests
and testing would be for the purpose of establishing compliance with the
Contract; and should proper compliance be established, the direct charges for
the additional test and testing will be paid by the owner. Should non-compliance
with the contract be established, the Subcontractor shall pay for all charges
and costs, direct or indirect, incurred by reason of correcting the work. Any
repeat tests required because of the test result showing material not to conform
to specifications shall be paid for by the Subcontractor.
g. Subcontractor and their work persons will not be allowed to use the
telephones at the General Contractor's field office.
h. Removal of rubbish from the site will be performed by General
Contractor. Subcontractors will be responsible to place all their debris and
rubbish into the containers provided by General Contractor on a daily basis.
Failure by the Subcontractor to adhere to this provision will be grounds for
General Contractor to back charge their account to perform this service.
i. General Contractor will provide the main axis lines and bench marks
around the site. The Subcontractor shall layout its own work from these lines
and bench marks and shall be responsible for damage or loss due to incorrect
layout or performance of its work. Final layouts to be approved by General
Contractor.
<PAGE>
Permanent Mission of The
Republic of Korea
335-337 F. 45th Street
New York. New York
RIDER "E"
progress schedule requirements. All job site storage locations must have
prior approval of General Contractor The Subcontractor is not guaranteed
continued use of such storage locations. Upon request by General Contractor, the
Subcontractor will relocate at his/her own expense, the material and equipment
as required for building and site work requirements and progress. Payment for
all stored materials will be subject to General Contractor requirements and
prior approval.
b. The storage of materials and apparatus, on site, shall be permitted only
to the extent approved by General Contractor. If materials and apparatus so
stored, obstruct the progress of any portion of the work. they shall be moved by
the Subcontractor without reimbursement of cost, from place to place or from the
premises, as General Contractor may direct. The cost of off-site storage I
staging areas and storage facilities for bulk materials and large quantities of
materials, if necessary, shall be included in the subcontractor's price.
3. SERVICES PROVIDED BY GENERAL CONTRACTOR:
General Contractor will provide the following services at the job site (as
progress of the building and site allows) for the benefit of Subcontractors
without cost to them, except as may be otherwise stated oi
a. Watch person services may be provided. General Contractor will not be
responsible for loss on the account of their or otherwise, of the property of
any Subcontractor or their employees, including construction materials not yet
accepted by the Owner I General Contractor.
b. Water for construction purposes is available. Any special requirements
for water shall be borne by the Subcontractor.
c. Electric current for normal construction purposes from 8:00 A.M. to 3:30
P.M., Monday through Friday, consisting of 120/208 volts, three-phase,
four-wire, 60 Hz. A.C. will be available on site according to General
Contractor's Specifications for Temporary Light and Power. All costs resulting
from connections to this power source will be by the Subcontractor. Each
Subcontractor will provide information for shanty requirements. Each
Subcontractor will be required to pay for any extension of Temporary Light and
Power beyond General Contractor's Specifications, that may be required for its
work.
<PAGE>
Permanent Mission of The
Republic of Korea
335-337E. 45th Street
New York. New York
RIDER "E"
j. The Subcontractor shall, at all times during the course of the work.
cooperate with General Contractor in carrying out General Contractor's
programs for pest and vermin control and cleanliness of the building
and site. The Subcontractor and its Subcontractor's will only store
gasoline and other flammable liquids in and dispense the same from
Underwriter Laboratories' listed safety containers and in conformance
with the recommendations of the National Board of Fire Underwriters.
Tarpaulins utilized by the Subcontractor or its Sub-Subcontractors
shall have the Underwriters Laboratories' approval and shall comply
with Federal Specifications CCC-D-746. The Subcontractor shall properly
secure and maintain the securing of all of its tarpaulins during the
course of the project and especially prior to and during sever weather.
4. REOUTREMENTS OF SUBCONTRACTORS:
b. Subcontractor shall designate one or more senior persons. who have full
authority, individually to act for Subcontractor under and with respect to the
Contract. The acts of each such representative shall be fully binding to the
Subcontractor. The Subcontractor may change it's designation of any
representative by five (5) days prior written notice to General Contractor by
Certified Mail, all prior acts of such authorized representatives shall remain
binding upon the Subcontractor.
c. Subcontractor shall enforce strict discipline and good order at all
times among the Subcontractor's employees.
d. Before starting the work, Subcontractor shall designate one or more
employees as the Subcontractor's Superintendent, who shall be present on the
Project Site with any necessary assistance, when Subcontractor is performing
work. Subcontractors Superintendent shall be a senior and responsible employee
of the Subcontractor, who is qualified for such assignment. Upon request by
General Contractor, Subcontractor shall replace this individual if it is
determined, in General Contractor opinion, that the supervision level is
inadequate to properly perform the work.
e. Locations of Subcontractor's items of plant and tools such as hoists,
mixers, cutters, etc., must be approved by General Contractor Superintendent.
f. When temporary utilities have been installed, any Subcontractor working
before the hours of 7:30 A.M. and after 4:30 P.M., on a normal working day,
Monday through Friday,
<PAGE>
Permanent Mission of The
Republic of Korea
335-3'~7 E. 45th Street
New York, New York
RIDER "E"
shall note that he must bear the added cost. if any, for providing
temporary light and power, or other temporary services outside these hours
unless such overtime is being worked at the request of General Contractor's
Superintendent. Subcontractor must notify General Contractor's Superintendent by
12:00 P.M. of any date work is to be performed on an overtime basis.
g. Subcontractors shall pay for cost of installation of temporary lights,
power, heat and telephone for their user at their changing area.
h. Subcontractors shall provide the scaffolding and related equipment
required in connection with their own work.
i. Subcontractor shall protect from damage and be responsible for their own
work until accepted in accordance with the terms of the Contract.
j. Subcontractors are expected to perform out-of-sequence work. The
terminology "out of sequence work" shall also include "comeback work" made
necessary by removal of plant, temporary wiring, piping or hoisting guy, etc.,
which are not removed until the building I site is substantially complete. and
shall also include a normal and reasonable amount of "comeback" to complete work
in each area I floor. Subcontractors shall include in their proposals. the cost
of this work.
k. In addition to standards of governing agencies mentioned in the Contract
Documents, it should be noted that the Local Building Inspector also has
jurisdiction.
1. Subcontractor shall include all cutting required by trade jurisdiction
in connection with their work, or caused by omission or negligence on the part
of the Subcontractor. Patching will be performed by others but charged to the
Subcontractor in cases of omission or negligence on their part.
m. Subcontractor shall be responsible for correction of any damage to the
work of preceding trades during the performance of their work.
n. Subcontractor will, within fifteen (15) working days after award of
subcontract, prepare and submit to General Contractor an acceptable detailed
schedule in an approved
<PAGE>
Permanent Mission of The
Republic of Korea
335-337E. 45th Street
New York, New York
RIDER "E"
formar (suretrak) outlining phases of the work. clearly stating critical
dates. manpower requirements, shop drawing schedule, long lead items,
fabrication dates, delivery and testing schedule and schedule of values.
Schedules are to be updated, formatted, or supplemented as required by General
Contractor. No progress payment will be issued to the Subcontractor until all
conditions stated above are satisfactorily met as judged by General Contractor
0. The Subcontractor shall also be responsible for final cleaning of their
work. This shall include removal of marks, stains, fingerprints, dirt, paint.
etc.' regardless of origin. The finished product shall be cleaned to the
complete satisfaction of General Contractor and the Architect before final
approval is requested and granted.
p. There are no provisions for on-site parking.
q. Each Subcontractor shall have responsible representation at coordination
meetings held in General Contractor's offices, when scheduled by General
Contractor. This responsible representation will include the authority by
Subcontractor management to respond to all matters pertaining to the agreement
with General Contractor to include labor, engineering, purchasing and expediting
requirements. These meetings will be held as often as required to arrange for
satisfactory coordination of all building and site trades so as not to impede
job progress. Subcontractors falling to abide by the provisions shall be held
responsible for any delays and / or expenses incurred due to coordination
difficulties in I with their trades.
r. Subcontractor may review the General Conditions of the Contract of
Construction. The Plans and Specifications covering the work of other trades,
shall be the responsibility of this Subcontractor for coordination of their work
with others.
s. Subcontractor shall submit shop drawings, prints, reproducibles, catalog
cuts, brochures, samples, etc., in the following quantities: 1. Shop Drawings -
3 sepia + 5 prints. (Architectural & Structural) 2 sepias + 6 prints (Electrical
& Mechanical) 2. Catalog cuts & Brochures - 9 copies (Architectural) 11 copies
(Electrical & Mechanical) 3. Samples -4 Samples are required.
t. When materials are specified to be furnished by others or furnished and
delivered only, it
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Permanent Mission of The
Republic of Korea
335-337E. 45th Street
New York. New York
RIDER "E"
shall be understood that such materials are to be furnished and delivered
F.O.B. site, and the receiving, unloading, handling and other work thereafter
will be furnished by each Subcontractor installing the materials as part of his
Contract Scope.
u. Should, in the opinion of General Contractor, it become necessary for
General Contractor to supplement the Subcontractors expediting efforts in order
to maintain job progress. then all costs incurred by General Contractor for this
effort will be back charged to the Subcontractor as General Contractor may
elect.
v. By 9:30 A.M. of each working day, Subcontractor must submit to General
Contractor Project Superintendent the following information:
1. The number of persons working at the site, broken down to indicate
classification, i.e., forepersons. journey persons, apprentices, etc., including
second tier Subcontractors, and a count of minorities and female employees.
2. Brief description of the work and where it is being performed, including
quantities of materials to be placed i.e., yards of concrete poured, tonnage and
number of pieces of steel in place, list ofmajor equipment, etc.
w. Access to the site will be via existing New York City streets and gates
per General Contractor Site Logistic Plan.
x. In the event that the Subcontractor shall introduce upon the project any
equipment. tools, plant, labor, or services in connection with the work, which
when added to the equipment tools, plant labor and services employed upon the
project by other & subcontractors will, pursuant to the provisions of any
applicable code, ordinance, regulation, or agreement, necessitate the employment
of additional labor, services, or equipment on the project, the Subcontractors
shall be responsible for any payments for their pro rata share of the cost of
such additional labor, services and equipment.
y. The Subcontractor is solely responsible for determining and supervising
all temporary and permanent erection and construction sequences. techniques or
methods required for its work and for preventing the overloading of any
temporary or permanent members or areas of the project. The Subcontractor shall
take positive action to ensure the discharge of these responsibilities and to
ensure the safety of all persons and the safe performance of its work, subject
to the concurrence of Construction Manager.
<PAGE>
Permanent Mission of The
Republic of Korea
335-337 E. 45th Street
New York, New York
RIDER "E"
that such policy shall not be canceled or amended. or any coverage reduced,
without at least thirty (30) days prior 'written notice by registered mail to
General Contractor and endorsement designating ROK, Humphreys & Harding, Inc.
Pei, Cobb Freed & Partners.
8. CHANGES TO THE CONTRACT:
a. No overhead or profit will be allowed on premium time authorized, to
perform contract work.
b. Allowable charges for changes.
For each Subcontractor involved with work performed by his own forces: 10%
overhead and 5% profit of the cost of his work, plus 15% for second tier
Subcontractors. In no case shall the applicable percentage for overhead and
profit for all tiers of subcontractors exceed 16% Overhead shall include the
following:
1. Supervision and superintendents. Not forepersons)
2. Timekeeper wages.
3. Clerical work.
4. Small tolls.
5. Incidentals general office and plant expense.
All changes in the work shall be submitted in the following manner. Change
Order Requests failing to comply with this form will be returned for correction.
a. Materials FOB Job Site (Itemized Breakdown) $
b. *Rent of Equipment (List Separately) $
c. Labor (Itemized Breakdown) $
d. Second tier Work (if applicable, same
breakdown as shown above) with 15%
Overhead & Profit $
e. **Overhead & Profit - 15% for items
(a) + (b) + ( c) $
<PAGE>
Permanent Mission of The
Republic of Korea
335-337 E. 45th Street
New York, New York
RIDER "E"
f. 5% for item (d) $
g. Payment & Performance Bond ('f Applicable) $
TOTAL $
* Rates not in excess of those prevailing in area.
* *If deductive changes. this figure to be 10% when both additions and
deductions are involved in any one change, the allowance for general
condition items and fee shall be figured on the basis of net increase and
decrease if any.
General Contractor will issue to the Subcontractor one (1) set of prints of
the Contract Drawings and Specifications at the start of its Subcontract and the
same of any revised drawings during the performance of his contract, which may
affect the scope of their Subcontract work. Subcontractors shall be responsible
for cost of reproducing additional prints for their own use their supplier's
use.
c. Requests for Change orders are to be submitted in duplicate to General
Contractor. Each shall state which Change Order Request number is being quoted.
Change Order Requests. when issued, are to be estimated and the quote returned
to General Contractor within (10) days of receipt. Any extensions of time
required must be so noted. If no written response from the Subcontractor I
Vendor is received within the ten (10) day period, General Contractor will
require that the work be performed at a cost established by General Contractor.
9. MONTHLY INVOICE:
a. The formal Subcontractor I Vendor invoice shall be submitted to
General Contractor no later that the 13th and 25th of each month with
the value of the work projected through the end of that month.
b. The General Contractor's formal Bi- monthly invoice to the owner
shall be submitted no later than the 5th day of each month with the
value of the work projected for the period in question. General
Contractor is to receive payment from the Owner the following month and
will expeditiously make payments to the Subcontractor.
<PAGE>
Permanent Mission of The
Republic of Korea
335-337E. 45th Street
New York, New York
RIDER "E"
c. General Contractor's Affidavit and Release of Lien from the
Subcontractor will be required on a monthly basis, and will be required at all
retention reduction and final payment requests.
d. Retainage will be held pursuant per General Contractor's standard
Subcontract terms.
10. SAFETY & PROTECTION:
a. The Subcontractor shall provide for protecting the lives and health of
employees and other persons; preventing damage to property, material, supplies,
and equipment; and avoiding work interruptions. For these purposes the
Subcontractor shall provide
General Contractor the following:
1. Written site specific Safety Program.
2. Written Hazardous Material Communication Program and Material Safety
Data Sheets
2. Provide appropriate safety barricades, signs and signal lights.
3. Comply with standard issued by Federal, State, and local authorities.
4. Ensure that any additional measures that General Contractor determines
to be reasonably necessary for this purpose shall be taken.
b. General Contractor will hold safety meetings on a scheduled basis each
month with on site personnel from each trade performing work on the site. At
least one (1) representative (foreperson level or above) from each Subcontractor
must be present. Each Subcontractor will be required to review with its
employees all items discussed. In addition, General Contractors Site Safety
Coordinator will hold regular meetings with individual forepersons, and shop
stewards. All supervisory personnel shall be continually on the alert for safety
hazards and report these and all accidents and injuries to General Contractor
immediately. Accident reports shall be submitted to General Contractors field
office the same day of the accident.
c. Fire Protection - The Subcontractor shall conform to all applicable fire
regulations.
d. Any costs to General Contractor for Federal, State or Local fines and I
or penalties resulting from Subcontractor's operations will be back charged to
their account
<PAGE>
Permanent Mission of The
Republic of Korea
335-337 E. 45th Street
New York, New York
RIDER "E"
e. All safety equipment or weather protective gear required to perform the
work of the Subcontractor is to be supplied by the Subcontractor.
f. All flag persons required for deliveries to the site are to be furnished
by the subcontractor.
g. The Subcontractor shall ascertain exact locations of utilities, shown on
the Contract Drawings, that may be affected by its work on this project. and
shall also be responsible for any damage or injury that may result from working
on or near these utilities.
h. If the Subcontractor encounters utilities that are not shown on the
Contract Drawings, the Subcontractor shall protect such utilities and notify
General Contractor, and shall take such action as reasonably required to
minimize the damage and shall promptly restore the system to operating
condition.
i. All Subcontractors are responsible to replace any protection removed
during the course of their work. Any cost to repair or replace protection
removed by the Subcontractor will be borne by the Subcontractor deemed
responsible in the opinion of General Contractor.
11.MAINTENANCE REOUIREMENTS:
a. The Subcontractor shall orient and instruct the maintenance personnel
designated by General Contractor in the operation of all equipment.
b. The Subcontractor shall furnish General Contractor with two complete
sets of neatly bound folders, containing the connection and control diagrams,
opting and maintenance instructions, cuts of all architectural, mechanic cal,
electrical, etc.. as installed, including catalogs or parts listed from the
prime manufacturer, and not based on local dealers stock number systems.
c. The Subcontractor shall provide maintenance instructions, etc.. prior to
ROK occupancy of the site and building(s).
12.ENGINEERING:
a. Upon award of a Subcontract, General Contractor will supply one (1) set
of Sepias and one (1) set of specifications to the Subcontractor. If more
drawings, sepias or specifications are needed, they can be obtained from the
printer at the expense of the Subcontractor.
<PAGE>
Permanent Mission of The
Republic of Korea
335-337 E. 45th Street
New York, New York
RIDER "E"
b. Within fifteen (15) working days after award of Subcontract. the
Subcontractor shall submit to General Contractor, a schedule indicating the time
frame when shop drawings, catalog cuts and samples are to be submitted. The
schedule shall include sufficient detail to indicate the number of each. No
progress payment will be made until satisfactory schedule is submitted.
c. Shop Drawing, Sample and Manufacturers Literature. etc. quantities, see
article 4, Subparagraph r
d. All Submittals shall be accompanied by a transmittal form properly
filled out. listing each item as well as the listing of any ASTM, Federal or
other standard reference specified or applicable and such information as may be
required by the specifications for the materials being submitted. Any deviations
from the contract requirements shall be so stated on the transmittal form.
e. Upon review of the submittals by the Architect I Engineer one (1) of
each item, print, sample, etc.) will be returned to the Subcontractor for
action. If an architectural Subcontractor desires to receive a sepia in addition
to the print mentioned above, an additional sepia should be included in the
submission.
f. Shop drawings shall show in detail. external connections, adjoining
attachments, adjoining materials, mechanical I electrical characteristics as
appropriate, conforming to the requirements of the specification section(s). Any
proposed variation I substitution I deviation from the specified and I or design
information must be approved by General Contractor prior to submission and shall
be clearly marked on each submission and its accompanying transmittal. All
equipment requiring electrical wiring shall include a specific wiring diagram
for that equipment indicating point-to-point connections, even if schematic.
g. The products and materials of manufacturers referred to in the Contract
Drawings and Specifications are intended to establish the standard of quality
and design required by the Architect. Unless specifically approved by General
Contractor and Architect, there will be no substitutions entertained for the
products of' material specified within the design documents.
h. The Subcontractor shall submit one (1) sepia and two (2) blueprints of
all As-Built drawings. The drawings shall be clearly marked "As-Built".
<PAGE>
Permanent Mission of The
Republic of Korea
335-337 E. 45th Street
New York, New York
RIDER "E"
e. All shop and field labor including supervision and engineering layout
costs.
f. All temporary utilities required, including safety precautions.
g. All costs of standby trades during or beyond normal working hours.
h. All transportation, freight, insurance, taxes (if applicable), overhead
and profit.
<PAGE>
