This Agreement (the “Agreement”) is made as of October ____, 2021 by and between PREMIER FLOORING FAMILY, LLC, a New York limited liability Company having offices at 259 Hortontown Road, Hopewell Junction, NY 12533, (the “Contractor”), and SUNNYBROOK ASSOCIATION, INC., a New York corporation having offices at 60 Toc Drive, Highland, NY 12528, (the “Association”), with regard to the following facts:
WHEREAS, the Association is the owner and manager of certain real property located at 60 Toc Drive, Highland, New York 12528 in the Town of Lloyd, and comprised of one hundred twenty-two (122) townhomes (individually, the “Unit” or plurally, the “Units”) together which collectively constitute a community (the “Premises”), and;
WHEREAS, each and every unit of the one hundred twenty-two (122) units is to some extent, portion or manner in disrepair, or alternatively is desired by Association to be altered or improved upon by Contractor by means of the Work as set forth herein this Agreement, and;
WHEREAS, the Association desires to hire a general construction contractor for the purposes of performing construction work, alterations, improvements, and/or some manner or type of structural or aesthetic change to the aforementioned Units located at the Premises, and the Contractor wishes to perform the construction work in the manner and upon the terms and conditions set forth herein, and;
NOW THEREFORE, in consideration of the mutual covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
- TERM. The term of this Agreement shall commence on the ___ day of October, 2021 (the “Commencement Date”) and shall continue for a period of no less than 4 weeks, through and including the date that is the Friday of the week which falls 4 weeks from the Commencement Date, unless and until terminated in accordance with the terms set forth in Section 8 herein. Unless and until this Agreement is terminated in accordance with the terms set forth in Section 8 herein, this Agreement shall remain in full force and effect, and both parties shall be mutually bound by the terms herein. Upon completion of the Work, Association shall terminate this Agreement in accordance with the terms set forth in Section 8 herein.
- SCOPE OF WORK. The Work shall mean whatever is done by or required of the Contractor to perform and complete its duties under this Contract, and to perform and complete the Scope of Work as set forth herein (the “Work”), including the following: (i) construction of the whole or a designated part of the Work as herein described; (ii) furnishing of any required insurance; and (iii) the provision or furnishing of labor, supervision, management, financing, services, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage, power, permits and licenses of the Contractor, fuel, heat, light, cooling and all other utilities as required by this Agreement. The Work to be performed by the Contractor is generally described as follows in the Scope of Work:
The Scope of Work shall be set forth in the “Workman Scope of Work”, drafted by the Stony Brook Association, and annexed hereto as “Exhibit A”, and ; further described in a letter entitled “Re: Cover letter for building exterior assessment performed in July 2021.”, annexed hereto as “Exhibit B”, and; further described in a document entitled “Building Exteriors as of July 28, 2021”, annexed hereto as “Exhibit C”, (collectively the “Scope of Work”). The Work may be changed, added to, amended or altered from time to time as may become necessary during performance of the Work, and as mutually agreed upon between the parties, notwithstanding that any material change which shall require a change to the Progress Payments or a material change of the terms of this Agreement shall be agreed upon in writing between Association and Contractor by means of a Change Order (the “Change Order”) which shall be annexed hereto and made a part of this Agreement.
- Contractor agrees to furnish and pay for all management, supervision, financing, labor, tools, fuel, supplies, utilities, equipment and services of every kind and type necessary to diligently, timely, and fully perform and complete in a good workmanlike manner the Work assigned to the Contractor herein.
- The Contractor shall perform all of the Work required, implied or reasonably inferable from, this Agreement.
- LABOR ONLY. The obligation of Contractor in performance of the Work under this Agreement and the payment by Association of Progress Payments to Contractor as set forth herein, relate to and are exclusively for the payment of and cost of labor as provided by Contractor to Association. Materials of any type, including but not limited to general raw construction materials and appliances, shall be provided by Association, at Association’s sole cost, and at no expense to Contractor, notwithstanding Contractor’s election to purchase any materials shall not constitute a revocation of the terms or rights contained herein this Section 3. In the event Contractor shall procure, agree to procure, or elect to procure with advance notice to or permission from Association, any materials for use in the performance of the Work, Contractor shall submit to Association a bill, receipt, invoice or any other form of proof of cost to or payment made by Contractor, and Association shall reimburse Contractor at the full amount for such materials for which Contractor has procured presently, or has ordered and is awaiting delivery of within five (5) business days of receipt of the same. In the event Contractor shall order materials to be used in performance of the Work which shall be delivered at a later date, Association shall reimburse Contractor within five (5) business days of the ordering of the same, and Association shall not deem delayed, failed, incomplete or outstanding delivery of such materials as excuse for non-reimbursement to Contractor for such amounts paid by Contractor.
- DEPOSIT. Within two (2) business days of the Commencement Date, the Association shall remit to Contractor a deposit in the amount of Four Thousand Dollars ($4,000.00) (the “Deposit”), which shall represent payment of the mobilization costs of the Work. The Deposit shall be applied toward payment of the first weekly Progress Payment as set forth in Section 6 herein.
- INDEPENDENT CONTRACTOR. The Association and Contractor each expressly agree and understand that they are creating an independent contractor relationship, and that Contractor shall not be considered an employee of the Association for any purpose. Contractor is not entitled to receive or participate in any medical, retirement, vacation, paid or unpaid leave, or other benefits provided by the Association to its employees. Contractor is exclusively responsible for all Social Security, self-employment, and income taxes, disability insurance, workers’ compensation insurance, any other statutory benefits otherwise required to be provided to employees, and all fees and licenses, if any, required for the performance of the services hereunder. Immediately upon entering into this Agreement, Contractor agrees to provide the Association with a completed and signed Form W-9, Request for Taxpayer Identification Number and Certification. Association will report all income to Contractor on IRS Form 1099. Contractor understands and agrees that he is solely responsible for all income and/or other tax obligations, if any, including but not limited to all reporting and payment obligations, if any, which may arise as a consequence of any payment under this Agreement. Contractor agrees to indemnify the Association for any claims or obligations asserted to the contrary by Contractor. All Work shall be performed by Contractor and independent contractors chosen by Contractor, and Contractor shall report all income to such independent contractors on IRS Form 1099. Notwithstanding the foregoing, Contractor shall be familiar with all independent contractors by means of a prior established working relationship, and Contractor shall guarantee that all subcontractors produce Work of a quality result. Contractor and independent contractors of Contractor shall provide all tools and equipment necessary in performance of the Work.
- PROGRESS PAYMENTS. Association shall pay on a weekly basis to Contractor the sum of Eight Thousand, Nine Hundred Dollars ($8900) as a Progress Payment (the “Progress Payment”), payable for the Work Week to be performed. Each weekly payment shall be remitted to Contractor no later than 5 p.m. Eastern Standard time on the Saturday the Monday for which the Work Week completes (the “Due Date”). In the event the Association shall fail to remit payment to Contractor by the Due Date, Contractor may, at its sole discretion, choose to not begin the Work Week until the same is received. In the event Contractor shall not begin any given Work Week as set forth herein this Section 7 due to non-payment by the Association, upon receipt of such payment, Contractor, at its sole discretion, may choose to work any forty (40) hours in any combination outside of the Work Week set forth herein which it sees feasible to itself and its sub-contractors or independent contractors, so long as said forty (40) hours shall be completed prior to the Monday in which the following Work Week is to begin.
- WORK WEEK. Contractor and independent contractors under direction of Contractor shall work a standard work week of forty (40) hours on site at the Premises between the days of Monday and Friday, and the hours of 6 a.m. Eastern Standard Time and 8 p.m. Eastern Standard Time of each week (the “Work Week”). Contractor shall provide a minimum of five independent contractors, whom shall be skilled laborers with a prior established business relationship with Contractor, at all times during the standard Work Week. Contractor may at its sole discretion perform more than forty (40) hours of Work in a week, notwithstanding such additional hours shall not affect the amount of the Progress Payment for such week. In the event inclement weather shall limit the ability of Contractor to complete the standard forty (40) hour Work Week as set forth herein, Association may do any of the following:
- Reduce the amount of the Progress Payment due and payable for the following Work Week by an amount directly proportionate with the number of hours by which the Work Week of Contractor was so limited; or
- Permit Contractor to make up the number of hours by which the Work Week was so limited in the following Work Week, or on any other schedule which may be agreeable between Contractor and Association, notwithstanding such make up hours shall be in addition to the standard forty (40) hours of the following Work Week as obligated herein this Section 7.
- TERMINATION. This Agreement may be terminated for any reason, or no reason at all by either party to this Agreement upon five (5) days written notice to the other party. This Agreement may be terminated immediately with material cause by either party to this Agreement.
- NON-SOLICITATION. Association shall not interfere with Contractor’s relationship with, or endeavor to entice away from the Contractor, the Contractor’s clients, employees, independent contractors, sub-contractors or any person who had a material business relationship with the Contractor in the duration of this agreement.
- INSURANCE. The Contractor, Independent Contractors, and any Sub-Contractors shall provide Certificates of Commercial General Liability Insurance and Workers Compensation and Employer’s Liability Insurance and must show Sunnybrook Association, Inc. as Additional Insured. These Certificates of Insurance must be placed on file with the Sunnybrook Association before any payments will be made to the Contractor or any employees of the Contractor, Independent Contractors, and any Sub-Contractors are allowed on Sunnybrook Association property.
Each party agrees to maintain insurance in commercially reasonable amounts calculated to protect itself and the other party to this Agreement from any and all claims of any kind or nature for damage to property or personal injury, including death, made by anyone, that may arise from activities performed or facilitated by this Agreement, whether these activities are performed by that Association, its employees, agents, or anyone directly or indirectly engaged or employed by that party or its agents.
- ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the Association and the Contractor. Specifically, without limitation, this Agreement supersedes any oral communications, rough drawings or plans, negotiations or representations, if any, between the Association and Contractor.
- INTENT AND INTERPRETATION. The intent of this Agreement is to require complete, correct and timely execution of the Work. Any Work that may be required, implied, or inferred by this Agreement or any documents outside of this Agreement or between the parties, as necessary to produce the intended result shall be provided by the Contractor for the fixed price of the Deposit and Progress Payments.
- ASSIGNMENT – Neither party shall have the right to assign any of its obligations or duties under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, either party may, without the consent of the other party, assign the Agreement to an affiliate or subsidiary Association or to any person that acquires all or substantially all of the assets of a party. Contractor may outsource to, use and or hire subcontractors in performance of the Work, the same which shall not constitute assignment for the purposes of this Agreement.
- INDEMNIFICATION. Each party shall indemnify, defend, and hold the other party harmless from and against any and all claims, actions, suits, demands, assessments, or judgments (collectively “Claims”) asserted, and any and all losses, liabilities, damages, costs, and expenses (collectively, “Losses”) (including, without limitation, attorneys fees, accounting fees, and investigation costs to the extent permitted by law) alleged or incurred arising out of or relating to any operations, acts, or omissions of the indemnifying party or any of its employees, agents, and invitees in the exercise of the indemnifying party’s rights herein or the performance or observance of the indemnifying party’s obligations under this Agreement. The Contractor, Independent Contractors, and any Sub-Contractors agree to indemnify Sunnybrook Association for any damage or injury caused by the contractor to our building, employees or residents. Prompt notice must be given of any claim, and the party who is providing the indemnification will have control of any defense or settlement.
- TIME IS OF THE ESSENSE. All of the limitations of time contained herein are of the essence of this Agreement.
- NON-SATISFACTORY WORK. No Progress Payment nor any use or occupancy of the Premises by the Association shall be interpreted to constitute an acceptance of Work not in strict accordance with this Agreement. In the event Association shall not be satisfied with the Work, Association may, at its election, do any of the following:
(a) Provide written notice to Contractor of dissatisfaction with the Work, such notice which shall detail the specific dissatisfaction and the manner in which Association wishes the same to be corrected. Upon receipt of such notice, Contractor may do any of the following:
- Remedy such dissatisfaction in the manner in which Association requested without further cost to Association, and upon any schedule of time outside of the Work Week as specified herein.
- Provide in writing a proposed alternative resolution to Association. In the event the same is unacceptable to Association, Association shall have the right to terminate this Agreement immediately as material cause in accordance with the terms set forth herein Section 8 of this Agreement.
(b) Provide written notice of termination of this Agreement in accordance with the terms set forth herein Section 8 and Section 17 of this Agreement.
- NOTICES. Any notices, consents or approvals permitted or required to be given in accordance with this Agreement shall be sent by registered or certified United States mail (with postage prepaid), overnight mail service, or personal delivery, addressed as follows, and shall be deemed to have been given (i) if sent by registered or certified mail, on the fifth (5th) business day following deposit in the United States mail, (ii) if sent by overnight mail, on the date that is recorded as delivered to the intended recipient, (iii) if personally delivered, upon receipt:
If to Association: Sunnybrook Association, Inc.
60 Toc Drive
Highland, NY 12528
If to Contractor: Premier Flooring Family, LLC
259 Hortontown Road
Hopewell Junction, NY 12533
- DEFAULT. If at any time Association fails to cure any default in the terms set forth herein this Agreement or in the performance of any other covenant or agreement for five (5) business days after delivery of written notice under this Agreement, then Contractor may, at its option and without limiting Contractor in the exercise of any other right or remedy Contractor may have on account of such default, do any of the following:
(a) By notice in any form, electronic, written or otherwise, and in whichever means chosen by Contractor, to Association, immediately revoke this Agreement and upon such revocation and without further demand or notice; or
(i) Halt any and all Work until such fault is cured by Association; or
(ii) Pursue any and all remedies available to Contractor at equity or at law.
- DEFINITION OF “CONTRACTOR”. The term “Contractor” shall mean only the person or entity that may from time to time hold Contractor’s interest under this Agreement. In no event shall Contractor have any personal liability under this Agreement.
- LIMIT OF LIABILITY. In no event shall either party be liable for any incidental or consequential damages. Contractor’s liability and Association’s exclusive remedy for any cause of action arising in connection with this Agreement or the use of the Premises or the Work, whether based on negligence, strict liability, breach of warranty, breach of contract, or equitable principles, is expressly limited to, at Association’s option, replacement of the Work solely in the Unit which is the subject of such claim, or repayment of the portion of the Progress Payment proportionately determined as the percentage of the forty (40) hour week for which such the subject Unit of the Premises was worked on, and for that portion of the Premises with respect to which damages are claimed.
- ATTORNEYS’ FEES. In the event of any litigation or other proceeding between the parties hereto to enforce any provision or right hereunder, the unsuccessful party to such proceeding shall pay the successful party all costs and expenses (including, without limitation, reasonable attorneys’ fees incurred by such successful party), which shall be included in and as part of any judgment rendered in such litigation.
- SEVERABILITY. It is agreed that if any provision of this Agreement is determined to be void by a court of competent jurisdiction, then such determination shall not affect any other provision of this Agreement and all such other provisions shall remain in full force and effect; provided, however, that if any provision obligating Association to make any payments hereunder is determined to be void or unenforceable, Contractor may, at its sole option, immediately terminate this Agreement without any notice or waiting period.
- WARRANTY OF AUTHORITY. The person executing this Agreement on behalf of Association hereby covenants and warrants that Association is a duly qualified organization in its state of formation and all required steps have been taken prior to the date hereof to qualify Association to do business in the State of New York; that all taxes have been paid to date; and that all forms, reports, fees, and other documents necessary to comply with applicable laws have been or will be filed when due. Association hereby represents and warrants that, except in the case of individual persons executing this Agreement on their own behalf, the persons executing this Agreement on behalf of Association are duly authorized to so execute this Agreement, binding Association to the terms and provisions hereof, and that upon the request of Contractor, Association shall provide evidence adequate in Contractor’s judgment to prove the authority of the executing persons.
- ENTIRE AGREEMENT. It is understood and acknowledged that there are no oral agreements between the parties hereto affecting this Agreement and that this Agreement supersedes and cancels any and all previous negotiations, arrangements, brochures, agreements, and understandings, if any, between the parties hereto or displayed by Contractor to Association with respect to the subject matter thereof, and none thereof shall be used to interpret or construe this Agreement. This Agreement contains all of the terms, covenants, conditions, warranties, and agreements of the parties relating in any manner to the Work, and shall be considered to be the only agreement between the parties hereto and their representatives and agents. None of the terms, covenants, conditions or provisions of this Agreement can be modified, deleted or added to except in writing signed by the parties hereto. All negotiations and oral agreements acceptable to both parties have been merged into and are included herein. There are no other representations or warranties between the parties, and all reliance with respect to representations is based totally upon the representations and agreements contained in this Agreement.
- GOVERNING LAW. The internal laws of the State of New York shall govern the validity, construction, performance, and enforcement of this Agreement. Should either party institute legal action to enforce any obligation contained herein, it is agreed that the venue of such suit or action shall be the county in which the Premises is located.
- NO INTERPRETATION AGAINST DRAFTER. Although the provisions of this Agreement were drawn by Contractor, this Agreement shall not be construed either for or against Contractor or Association but shall be interpreted in accordance with the general tenor of its language.
- CUMULATIVE RIGHTS. The various rights, options, elections, powers, and remedies contained in this Agreement shall be construed as cumulative, and no one of them shall be exclusive of any of the others or of any other legal or equitable remedy that either party might otherwise have in the event of breach or default in the terms hereof. Furthermore, the exercise of one right or remedy by such party shall not impair its right to any other right or remedy until all obligations imposed upon the other party have been fully performed.
- RELATIONSHIP OF PARTIES. Nothing contained in this Agreement shall be deemed or construed by the parties hereto or by any third person to create the relationship of Employer and Employee or of partnership or of joint venture or of any association between Association and Contractor, and neither this method of computation of fees nor any other provision contained in this Agreement nor any acts of the parties hereto shall be deemed to create any relationship between Association and Contractor other than the relationship of a Association which has hired an independent contractor.
- JURY TRIAL. The parties hereto shall and they hereby do waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way connected with this Agreement, the relationship of Contractor and Association, Association’s use or occupancy of the Premises and/or any claim of injury or damage.
- INDEPENDENT COVENANTS. Association’s performance of Association’s covenants and obligations pursuant to this Agreement shall be a condition precedent to Contractor’s duty to perform Contractor’s covenants and obligations pursuant to this Agreement.
- COMPLIANCE WITH LAW. Each party shall comply in all respects with all applicable legal requirements governing the duties, obligations, and business practices of that party and shall obtain any permits or licenses necessary for its operations. Neither party shall take any action in violation of any applicable legal requirement that could result in liability being imposed on the other party.
- MODIFICATION. This Agreement can be modified only in writing executed by the parties hereto.
- FORCE MAJEURE. Any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes therefor, governmental actions, enactment of new or changes to laws of either the state or federal level, civil commotions, fire or other casualty, pandemic, and other causes beyond the reasonable control of the party obligated to perform shall excuse the performance of such party for a period equal to any such prevention, delay or stoppage; this Section 33 shall apply to any period during which Contractor may be forced to halt Work due to any such force majeure circumstance, and shall commence simultaneously at such time as Contractor resumes Work in accordance with the terms and conditions set forth herein.
Force Majeure shall not include;
- Financial distress nor the inability of either party to make a profit or avoid a financial loss; or
- Changes in market prices or conditions; or
- A party’s financial inability to perform its obligation hereunder for any reason or under any circumstance.
Upon the occurrence of a Force Majeure event, the suffering party shall provide prompt written notice, in accordance with the terms set forth in Section 17 herein, describing in reasonable detail, the occurrence and the expected duration of the event’s effect on the suffering Party. A disruption in such suffering party’s performance which lasts, or is reasonably expected to extend beyond a duration of, ninety (90) days, shall be material cause for termination of this Agreement.
- COUNTERPARTS. This Agreement may be executed in separate counterparts, each of which shall be an original and all of which when taken together shall be but one agreement.
Remainder of Page Intentionally Left Blank
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have executed this Agreement on the day and year first above written.
Sunnybrook Association, Inc.,
a New York corporation
Premier Flooring Family, LLC
a New York limited liability Company.
Name: Gregory Purdy
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