Preview
FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023
EXHIBIT P
FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023
ROYAL
CUSTOM HOMES. COMMERCIAL BUILDINGS
AGREEMENT
Agreement made this 3rd day of March, 2017 by and between MAC 60 LLC Owner and Royal Home
Improvements d/b/a Royal Builders Inc, Manager. The Parties agree that Manager will manage the
construction of the premises known as 2357 60* Street, Brooklyn, NY, 11204 (the "Premises") property. The
management fee will be $250,000.00 and insurance of $50,000.00 annually which will be paid as follows:
Deposit of $25,000 upon signing of contract.
First annual payment of $50,000 for insurance when Dept of Building permits are issued.
Balance to be paid monthly as the job progresses.
Managers'
responsibility will include the following:
(1) Obtain quotes for the work to be completed.
(2) Review quotes with Owner and negotiate on Owner's behalf for the best price.
(3) Assign manager's employees as needed at the site.
(4) Purchase all supplies necessary to properly maintain and operate the Premises.
(5) Mamtain insurance for all workers at the Premises and insure all subcontractors
maintain same. All liability policies shall name the Owner as additional insured.
(6) Maintain an accurate set of books and orderly files, insurance policies, receipted
bills, etc.
Owner shall pay all costs associated with the construction including site manager fee and/or will reimburse
Manager for monies advanced. Manager will provide receipts of payment to Owner.
This agreement may be terminated by Owner with cause or by Manager for lack of payment upon
days'
twenty (20) notice. Management fee and insurance payments need to be paid up to date of termination
Dated: March 3, 2017
Manager
M 60 LLC Menachem Markovies
3004 Avenue L . Second Floor. Brooklyn NY 11210 . Tel 718.677.5641. Fax 718.677.3971
Email info@royalbuildersny.com
FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023
EXHIBIT
DefendantsExhibitA 11/18/21CZ
ConsensusDSs
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Job Number f 1 Account Code: [ l
This Agreement is made this 2181day of March, 2017, by and between the
Ó‚NER: MAC 60 LLC
620 Foster Ave Suite 301
Brooklyn, NY 11230
and the
CONSTRUCTOR: Royal Home Improvements Inc dba Royal Bullders inc
3004 Ave L
Brooklyn, NY 11210
Tax identification number (TIN): 11-3431757 Contractor License No., if applicable: 10344
"Parties." at the
The Owner and Constructor are collectively the Notice to the Parties shall be given
above addresses.
PROJECT: 2357 60th St Brooklyn, NY 11204
DESIGN PROFESSIONAL: [ l
1. THE WORK The Constructor shall fumish construction administration and management services and
use the Constructors diligent efforts to perform the Work in an expeditious manner consistent with the
Contract Documents. The Constructor shall provide all labor, materials, equipment. and services
r=r="""ry to fulfill the Constructor's obEgations for the Project in conformance with this Agreement and
the other Contract Documents. The Work shaB be completed in accordance with Exhibit E, "Estimated Time."
Work.*
Budget and Schedule of the The time allotted in Exhibit E shell deline the "Contract
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FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023
2. COMPENSATION Owner shan compensate Constructor for Work performed on the basis of the Cost
of the Work as allowed in article 9 of this Agreement, and Constructors Fee paid in proportion to the
Work performed subject to adjustment as provided herein. Constructor's Fee shall be as follows, subject
below·
to adjustment provided
Management fee of $250,000 will be paid monthly over an 18 month period. Insurance of $50,000
annually. $25,000 upon signing of contract and balance of $25,000 paid quarterly.
Budget"
The "Estimated to complete the Work is $[ ] ([ ÃŽ dollars) ("Estimated Budget"). The
Estimated Budget is not a guaranteed maximum price for the Cost of the Work or Constructor's Fee. If
Constructor becomes aware that the Estimated Budget or Contract Time is to be meam,ead, the
Constructor shall promptly notify the Owner. Such notice will be given in writing prior to performing the
Wbrk in excess of the Estimated Budget, and will include an estimate and explanation of the additional
costs and time.
3. ADJUSTMENT IN CONSTRUCTOR'S FEE An adjustment in Constructors Fee shaA be made as
follows: [ 1.
4. EXHIBITS The following attached exhibits are made part of this Agreement:
EXHIBIT A: General Description of the Work, Approved plans to be provided prior to construction
page(s).
EXHIBIT 8: Existing Contract Documents, [ l page(s).
EXHIBIT C: Progress Schedule, [ I page(s).
EXHIBIT D: Altemates and Unit Prices, [ ] page(s).
EXHIBIT E: Estimated Budget and Schedule of the Work.
PARTIES'
5. REl..ATIONSHIP AND ETHICS The Parties each agree to proceed with the Project on the
basis of mutual trust, good faith, and fair dealing. The Parties shall perform their obligations with integrity,
other
ensuring at a minimum that each: (a) avoids conflicts of interest and promptly discloses any to the
or
Party; and (b) warrants that it has not and shall not pay nor receive any contingent fees or gratuities to
from the other Party, including its agents, officers, and employees, subcontractors, or otheis for whom
they may be liable, to secure preferential treatment.
6. CONSTRUCTOR'S RESPONSIBILITIES The Constructor shall be responsible for supervision and
coordination of the Work, including the construction means, methods, techniques, sequences, and
procedures utilized, unless the Contract Documents give other specific instructions.
6.1. Except for permits and fees that are the responsibility of the Owner pursuant to this Agreement,
the Constructor shall obtain all necessary permits, licenses, and renewals pertaining to the Work.
6.2. The Constructor shall pay all applicable taxes legally enacted when bids are received or
negotiations concluded for the Work provided by the Constructor.
6.3. In the event that the Owner elects to perform work at the geographical area of the Project,
("Worksite") directly or by others retained by the Owner, the Constructor and Owner shall coordinate
the activities of all forces at the Worksite and shall agree upon fair and reasonable schedules and
operational procedures for Worksite activities. The Owner shall require each separate contractor to
cooperate with the Constructor and assist with the coordination of activities and the review of
construction schedules and operations.
6.4.in order to facilitate its responsibilities for completion of the Work in accordance with and as
reasonably inferable from the Contract Documents, prior to commencing the Work, the Constructor
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FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023
;
shall examine and compare the drawings and specifications with information fumished by the Owner
pursuant to section 7.1; relevant field measurements made by the Constructor; and any visible
conditions at the Worksite affecting the Work.
6.5. COMPLIANCE WITH LAWS The Constructor shall comply with all laws. The Constructor shall be
liable to the Owner for all loss, cost, or expense, attributable to any acts or omissions by the
Constructor, its employees, subcontractors, and agents for failure to comply with laws, including fines,
penalties, or corrective measures.
6.6. WARRANTY
6.6.1. The Work shall be executed in accordance with the Contract Documents in a workmanlike
manner. The Constructor warrants that all materials and equipment shall be new unless
otherwise specified, of good quality, in conformance with the Contract Documents, and free from
defective workmanship and materials. The Constructor further warrants that the Work will be free
from material defects not intrinsic in the design or materials required in the Contract Documents.
caused by normal
The Constructor's warranty does not include remedies for defects or damages
wear and tear during normal usage, use for a purpose for which the Project was not intended,
improper or insufficient maintenance, modifications performed by the Owner or others retained by
Owner, or abuse.
6.6.2. If, prior to the Date of Substantial Completion and within one year after the date of
Substantial Completion of the Work, any portion of the Work is found to be not in conformance
with the Contract Documents ("Defective WorlC), the Owner shall promptly notify the Constructor
in writing. Unless the Owner provides written acceptance of the condition, the Constructor shall
and bear the expense of additional
promptly correct the Defective Work at Its own cost and time
services required for correction of any Defective Work for which it is responsible.
6.7. SAFETY The Constructor shall have overall responsibility for safety precautions and programs in
the performance of the Work, except that the Constructors subcontractors shall also be responsible
for the safety of persons or in the performance of their work, and for compliance with the
property
provisions of laws. The Constructor shall seek to avoid injury, loss, or damage to persons or property
other persons at the Worksite; materials and
by taking reasonable steps to protect its employees and
equipment stored at on-site or off-site locations for use In the Work; and property located at the
Worksite and adjacent to Work areas, whether or not the property is part of the Work.
6.8. HAZARDOUS MATERIALS A Hazardous Material is any substance or material identified now or
in the future as hazardous under any federal, state, or local law or regulation, or any other substance
or material which may be considered hazardous or otherwise subject to statutory or regulatory
requirement goveming handling, disposal, or clean-up. The Constructor shall not be obligated to
commence or continue work until any Hazardous Material discovered at the Worksite has been
independent
removed, or rendered or determined to be harmless by the Owner as certified by an
govemment agency. If the Constructor incurs
testing laboratory and approved by the appropriate
additional costs or is delayed due to the presence or remediation of Hazardous Material, the
Constructor shall be entitled to an equitable adjustment in the Contract Time.
6.9.MATERIALS BROUGHT TO THE WORKSITE The Constructor shall be responsible for the
proper delivery, handling, application, storage, removal, and disposal of all materials and substances
brought to the Worksite by the Constructor in accordance with the Contract Documents and used or
consumed in the performance of the Work.
6.10. SUBMITTALS The Constructor shall submit to the Owner and Design Professional for review
and approval all shop drawings, samples, product data, and similar submittals required by the
Contract Documents. Submittals may be submitted in electronic form if required in accordance with
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FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023
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NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023
ConsensusDocs 200.2 and section 7.5. The Constructor shall be responsible to the Owner for the
accuracy and conformity of its submittals to the Contract Documents. The Constructor shall prepare
and deliver its submittals to the Owner and Design Professional in a manner consistent with the
Schedule of the Work and in such time and sequence so as not to delay the performance of the Work
or the work of the Owner and others retained by the Owner. The Constructor submittals shall identify
in writing for each submittal all changes, deviations, or substitutions from the requirements of the
Contract Documents. The approval of any Constructor submittal shall not be deemed to authorize
deviations, substitutions, or changes in the requirements of the Contract Documents unless express
written approval is obtained from the Owner specifically authorizing such deviation, substitution, or
change. Further, the Owner shall not make any change, deviation, or substitution through the
submittal process without specifically identifying and authorizing such deviation to the Constructor.
The Owner shall be responsible for review and approval of submittals with reasonable promptness to
avoid causing delay. The Constructor shall perform ali Work strictly in accordance with approved
submittals. The Owner's approval does not relieve the Constructor from responsibility for Defective
Work resulting from errors or omissions of any kind on the approved shop drawings.
6.11. WORKSITE CONDITIONS If the conditions encountered at the Worksite are (a) subsurface or
other physical conditions which are materially different from those indicated in the Contract
Documents, or (b) unusual and unknown physical conditions which are materially different from
conditions ordinarily encountered and generally recognized as inherent in the Work provided for in the
Contract Documents, the Constructor shall stop Work and give prompt written notice of the condition
to the Owner and Design Professional. The Constructor shall not be required to perform any work
relating to the unknown condition without the written mutual agreement of the Parties.
6.12. CUTTING, FITTING, AND PATCHING The Constructor shall perform cutting, fitting, and
for the work
patching necessary to coordinate the various parts of the Work and to prepare its Work
of the Owner or others retained by the Owner.
6.13. CLEANING UP The Constructor shall regularly remove debris and waste materials at the
Worksite resulting from the Work. Prior to discontinuing Wbrk in an area, the Constructor shall clean
the area and remove all rubbish and its construction equipment, tools. machinery, waste, and surplus
materials. The Constructor shall minimize and confine dust and debris resulting from construction
activities. At the completion of the Work, the Constructor shall remove from the Worksite all
construction equipment, tools, surplus materials, waste materials, and debris.
7. OWNER'S RESPONSIBILITIES Any information or services to be provided by the Owner shall be
provided in a timely manner.
7.1. FINANCIAL INFORMATION Before commencing the Work and thereafter at the written request
of the Constructor, the Owner shall provide the Constructor with evidence of Project financing.
Evidence of such financing shall be a condition precedent to the Constructor's commencing or
in Project
continuing the Work. The Constructor shall be notified prior to any material change
financing.
7.2. WORKSITE INFORMATION The Owner shall provide at the Owners expense and with
reasonable promptness the following, which the Constructor shall be entitled to rely upon for its
accuracy and completeness:
7.2.1. information describing the physical characteristics of the Worksite, including surveys,
Worksite evaluations, legal descriptions, data, or drawings depicting existing conditions,
subsurface, and environmental studies, reports, and investigations;
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.- CONTENT sECuREID: 1D7CF0FD.7CF8
FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023
7.2.2. tests, inspections, and other reports dealing with environmental matters, hazardous
material and other existing conditions, including structural, mechanical, and chemical tests
law·
required by the Contract Documents or by and
7.2.3. any other information or services requested in writing by the Constructor that are relevant
to the Constructors performance of the Work and under the Owners control. Legal descriptions
shall include easements, title restrictions, boundaries, and zoning restrictions. Worksite
descriptions shall include existing buildings and other construction and all other pertinent
Worksite conditions. Adjacent property descriptions shall include structures, streets, sidewalks,
aceys, and other features relevant to the Work. Utility details shall include available semices,
lines at the Worksite and adjacent thereto, and connection points. The information shall include
pubHe and private information, subsurface information, grades, contours, and elevations,
drainage data, exact locations and dimensions, and benchmarks that can be used by the
Constructor in laying out the Work.
7.3. MECHANICS AND CONSTRUCTION LIEN INFORMATION Within seven (7) Days after
receiving the Constructors written request, the Owner shall provide the Constructor with the
information necessary to give notice of or enforce mechanics lien rights and, where applicable, stop
notices. This information shall include the Owners interest in the real property on which the Project is
located and the record legal title.
7.4. BUILDING PERMIT, FEES, AND APPROVALS Except for those required of the Constructor
pursuant to this Agreement, the Owner shall secure and pay for all other permits, approvals,
and fees required for the development, construction, use, or occupancy of
easements, assessments,
permanent structures or for permanent changes in existing facilities, including the building permit.
7.S. DOCUMENTS IN ELECTRONIC FORM If the Owner requires that the Owner, Design
Professional, and Constructor exchange documents and data in electronic or digital form, prior to any
such exchange, the Owner, Design Professional, and Constructor shall agree on a written protocol
goveming a(I exchanges in ConsensusDocs 200.2 or a separate addendum.
8. SUBCONTRACTS Work not performed by the Constructor with its own forces shall be performed by
subcontractors. The Constructor agrees to bind every subcontractor and material supplier (and require
every subcontractor to so bind its subcontractors and material suppBers) to all the provisions of this
Agreement and the Contract Documents as they apply to the subcontractors and material suppRers
portions of the Work.
9. COST OF THE WORK
The Owner agrees to pay the Constructor for the Cost of the Work as defined in this article. This
payment shall be in addition to the Constructors Fee. The Cost of the Work includes:
9.1. wages paid for labor in the direct employ of the Constructor in the performance of the Work;
9.2. :
workers'
9.3. cost of all employee benefits and taxes including but not limited to compensation,
unemployment compensation, social security, health, welfare, retirement, and other fringe benefits as
required by law, labor agreements, or paid under the Constructors standard personnel policy, insofar
as such costs are paid to employees of the Constructor who are included in the Cost of the Work in
the two subsections immediately above;
9.4. reasonable transportation, travel, hotel, and moving expenses of the Constructors personnet
Incurred in connection with the Work;
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CoNTENTsECUREID: 1D7CFeFDJCFS
FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023
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NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023
9.S. cost of all materials, supplies, and equipment incorporated in the Work, including costs of
inspection and testing if not provided by the Owner, transportation, storage, and handling;
9.6. payments made by the Constructor to subcontractors for Work performed under this
Agreement;
9.7. cost, including transportation and maintenance of all materials, supplies, equipment, temporary
facilities, and hand tools not owned by the workers that are used or consumed in the performance of
the Work, less salvage value or residual value; and cost less salvage value on such items used, but
not consumed, that remain the property of the Constructor,
9.8. rental charges of an necessary machinery and equipment, exclusive of hand tools owned by
workers, used at the Worksite, whether rented from the Constructor or Others, including instaHation,
repair and replacement, dismantling, removal, maintenance, transportation, and delivery costs. Rental
from unrelated third parties shall be reimbursed at actual cost. Rentals from the Constructor or its
affiliates, subsidiaries, or related parties shall be reimbursed at the prevaNing rates in the locality of
the Worksite up to eighty-five percent (85%) of the value of the piece of equipment;
9.9. cost of the premiums for all insurance and surety bonds which the Constructor is required to
procure or deems necessary, and approved by the Owner, including any additional premium incurred
as a result of any increase In the Cost of the Work;
9.10. sales, use, gross receipts, or other taxes, tariffs, or duties related to the Work for which the
Constructor is liable;
9.11. permits, fees, licenses, tests, and royalties;
9.12. repmduction costs, photographs, facsimile transmissions, long-distance telephone calis, data
processing services, postage, express delivery charges, data transmission, telephone service, and
computer-related costs at the Worksite, to the extent such items are used and consumed in the
performance of the Work or are not capable of use after completion of the Work;
9.13. an water, power, and fuel costs necessary for the Work;
9.14. cost of removal of all non-hazardous substances, debris, and waste materials;
9.15. costs incurred due to an emergency affecting the safety of persons or property;
9.16. legal, mediation, and arbitration fees and costs, other than those arising from disputes between
the Owner and the Constructor, reasonably and property resulting from the Constructors performance
of the Work;
9.17. all costs directly incurred in the performance of the Work or in connection with the Project, and
not included in the Constructor's Fee as set forth in article 2. which are reasonably Inferable from the
Contract Documents.
9.18. DISCOUNTS All discounts for prompt payment shall accrue to the Owner to the extent such
payments are made directly by the Owner. To the extent payments are made with funds of the
Constructor, all cash discounts shall accrue to the Constructor. AH trade discounts, rebates, and
refunds, and all retums from sale of surplus materials and equipment, shall be credited to the Cost of
the Work.
9.19. FINANCIAL RECORDS Constructor shall keep such full and detailed accounts as are
necessary for proper financial management under this Agreement. Constructor shall maintain a
complete set of all books and records prepared or used by Constructor with respect to the Project.
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NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023
Owner shall be afforded access to all Constructors records, books, correspondence, instructions,
drawings, receipts, vouchers, memoranda, and similar data relating to this Agreement. Constructor
shall preserve all such records for a period of three years after the final payment or longer where
required by law. Constructor agrees to use reasonable skill and Judgment In the preparation of cost
estimates, but does not warrant or guarantee them.
10. PAYMENT
10.1. PROGRESS PAYMENTS The Constructor shall submit to Owner and, if directed, the Design
Professional a application for payment when contractor deems appropriate. . The application for
payment shall consist of the Cost of the Work performed, including the cost of material suitably stored
on the Worksite or at other locations approved by Owner, along with a proportionate share of the
Constructors Fee. The Constructor shall also include an estimate of the additional costs necessary to
complete the Work. Approval of payment applications for such stored materials stored off-site shan be
conditioned upon submission by Constructor of bills of sale and applicable insurance or such other
procedures satisfactory to Owner to establish Owners title to such materials, or otherwise to protect
Owners interest, including transportation to the Worksite. Before submitting the next application for
payment, Constructor shall fumish to Owner a statement accounting for the disbursement of funds
received under the previous application. The extent of such statement shall be as agreed upon
between the Parties.
10.2. Within seven (7) Days after receipt of each monthly application for payment, Owner shall give
written notice to Constructor of Owners acceptance or rejection, in whole or in part, of such
application for payment Within fifteen (15) Days after accepting such application, Owner shall pay
directly to Constructor the appropriate amount for which application for payment is made, less
amounts previously paid by Owner. If such application is rejected in whole or in part, Owner shall
indicate the reasons for its rejection. If the Parties cannot agree on a revised amount, then, within
fifteen (15) Days after its initial rejection in part of such application, Owner shall pay directly to
Constructor the appropriate amount for those items not rejected by Owner, for which application for
payment is made, less amounts previously paid by Owner. Those items rejected by Owner shall be
due and payable when the reasons for the rejection have been removed.
10.3. ADJUSTMENT OF CONSTRUCTOR'S PAYMENT APPLICATION The Owner may adjust or
reject a payment application or nullify a previously approved payment application, in whole or in part,
as may reasonably be necessary to protect Owner from loss or damage based upon the following, to
the extent that Constructor is responsible for such under this Agreement
10.3.1. the Constructors repeated failure to perform the Work as required by the Contract
Documents;
10.3.2. loss or damage for which the Owner may be liable arising out of or relating to this
Agreement and caused by the Constructor to the Owner or to others retained by the Owner to
whom the Owner may be liable;
10.3.3. the Constructors failure to properly pay subcontractors or materials suppliers in
connection with the Work following receipt of such payment from the Owner,
10.3.4. Defective Work not corrected in a timely fashion;
10.3.5. reasonable evidence of delay in performance of the Work such that the Work will not be
completed within the Contract Time; and
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. CONTENTsECuREID: 1D7CF0FD-7CF6
.
FILED: KINGS COUNTY CLERK 04/26/2023 07:32 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 04/26/2023
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10.3.6. unless arising from Owners non-payment for the performance of the Work, uninsured
third-party claims involving the Constructor or reasonable evidence demonstrating that third-party
claims are likely to be filed unless and until the Constructor fumishes the Owner with adequate
security in the form of a surety bond, letter of credit, or other collateral or commitment which is
sufficient to discharge such claims if established.
No later than seven (7) Days after receipt of an application for payment, the Owner shall give
written notice to the Constructor disapproving or nullifying it or a portion of it, specifying the
reasons for the disapproval or nullification. When the above reasons for disapproving or nullifying
an application for payment are removed, payment shall be made for the amounts previously
withheld.
10.4. PAYMENT DELAY If for any reason not the fault of the Constructor, the Constructor does not
receive a progress payment from the Owner within seven (7) Days after the time such payment is