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02-4757
IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW EASTERN INDUSTRIES, INC. Plaintiff VS, ANGELO IAFRATE CONSTRUCTION COMPANY and NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, Defendants NO. O;Z-7 CIVIL ACTION NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN 'rWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIMS OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 TELEPHONE: (717) 249-166 TOLL FREE: (800) 990-9108 FITZPATRICK LENTZ & BUBBA, P.C. J(:~.~H"S. D'AMICO, JR., ES(~RE I.D. No. 55645 '"" 4001 Schoolhouse Lane P.O. Box 219 Center Valley, PA 18034-0219 (610) 797-9000 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW EASTERNINDUSTRIES, INC. Plaintiff VS. ANGELOIAFRATE CONSTRUCTION COMPANY and NATIONALFiRE INSURANCE COMPANY OF HARTFORD, De~ndants NO. ~)~.-- CIVIL ACTION COMPLAINT Plaintiff, Eastern Industries, Inc., by and through its counsel, Fitzpatrick Lentz & Bubba, P.C., files the following Complaint and in support thereof avers as follows: 1. Plaintiff, Eastern Industries, Inc. ("Eastern"), is a corporation lawfully doing business in the Commonwealth of Pennsylvania which maintains a place of business at 4401 Camp Meeting Road, 18034. 2. Suite 200, Center Valley, Lehigh County, Pennsylvania Defendant, Angelo lafrate Construction Company ("lafrate"), is believed and therefore averred to be a corporation lawfully doing business in the Commonwealth of Pennsylvania which maintains a principal place of business in Pennsylvania at 6375 Baseshore Road, Suite 6, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. Defendant, National Fire Insurance Company of Hartford ("National"), is believed and therefore averred to be a corporation lawfully doing business within the Commonwealth of Pennsylvania with a principal place of business at CNA Plaza Surety Claims- 13 South, 333 South Wabash Avenue, Chicago, IL 60685. 4. Eastern, the subcontractor, entered into a Subcontract Agreement with lafrate, the contractor, on March 2, 1999, for the project denoted as "Perry County SR-11 Section 008" and owned by Commonwealth of Pennsylvania, Pennsylvania Department of Transportation ("PennDOT"). A true and correct copy of the Subcontract Agreement is attached hereto and marked as Exhibit "A". 5. National, lafrate's surety, issued a Payment Bond to lafrate (Bond #190764327) to secure payment to Eastern, among others, upon completion of their obligations. Eastern is not in possession of a copy of the bond at issue but believes that both Defendants are in possession of the same. 6. At all material times, Eastern completed its contractual duties. Further, its work ended in or about April 2002. 7. Throughout the project, Eastern invoiced lafrate for the work and expenses performed by Eastern in accordance with the Subcontract Agreement. 8. Infrate paid some, but not all of Eastern's invoices. 9. lafrate has failed and refused to pay all sums invoiced and due Eastern. True and correct copies of the unpaid invoices are attached hereto and collectively marked as Exhibit "B". 10. On or about March 8, 2002, and April 17, 2002, Eastern made timely demands for payment on lafrate and National. True and correct copies of the demand letters are attached hereto and collectively marked as Exhibit "C". 11. Fifteen Dollars and Ninety-Seven Cents ($46,115.97). COUNT I CLAIM AGAINST BOND 12. Eastern incorporates by reference Paragraphs Complaint as if fully set forth herein. The principal balance due Eastern is Forty Six Thousand One Hundred 1 through 11 of the 13. Eastern duly performed and fulfilled each and every condition of the contract and each requirement under the bond to secure payment. 14. lafrate has failed to pay the amount rightfully due Eastern. 15. Pursuant to its bond, National is liable to pay Eastern the sum of Forty Six Thousand One Hundred Fifteen Dollars and Ninety-Seven Cents ($46,115.97). 16. Defendants' liability is joint and several. WHEREFORE, Eastern Industries, Inc. demands a judgment in its favor and against lafrate Construction Company and National Fire Insurance Company of Hartford in the amount of Forty Six Thousand One Hundred Fifteen Dollars and Ninety-Seven Cents ($46,115.97) with pre and post judgment, interest and costs of suit. COUNT Il CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT 17. Eastern incorporates by reference Paragraphs 1 through 16 of the Complaint as if fully set forth herein. 18. The Subcontract between lafrate and Eastern falls within the previsions of the Contractor and Subcontractor Payment Act, 73 P.S. §500, et seq. 19. lafrate failed to pay the amount invoiced by Eastern within the time provided under their contract after receipt of the invoices at issue, as required by 73 P.S. §507(c). Thus, in addition to the above balance, Eastern is entitled to recover interest at the rate of one (1%) percent per month or fraction of a month on the balance due and owing from the day after the first payment was missed, through the present. See 73 P.S. §507(d). 20. Because litigation was commenced by Eastern to recover the payments due it, lafrate is subject to a penalty payable to Eastern equal to one (1%) percent per month of the amount wrongfully withheld. See 73 P.S. §512(a). 21. Eastern is also entitled to recover reasonable attorney's fees together with expenses. See 73 P.S. §512(b). WHEREFORE, Eastern Industries, Inc. demands a judgment in its favor and against lafrate Construction Company in the amount of Forty Six Thousand One Hundred Fifteen Dollars and Ninety-Seven Cents ($46,115.97)with applicable penalties, interest, attorney's fees, and costs of suit. COUNT III BREACH OF CONTRACT 22. Eastern incorporates by reference Paragraphs I through 21 of the Complaint as if fully set forth herein. 23. Eastern has demanded payment by lafrate of all sums due under the contract. 24. lafrate has failed to pay the sums rightfully claimed by Eastern. 25. Based on the foregoing, lafrate has breached its contract with Eastern and caused it damages. WHEREFORE, Eastern Industries, Inc. requests that judgment be entered in its favor and against lafrate Construction Company in the amount of Forty Six Thousand One Hundred Fifteen Dollars and Ninety-Seven Cents ($46,115.97)with applicable pre- and post-judgment interest and costs of suit. FITZPATRICK LENTZ & BUBBA, P.C. . 'AMICO, JR.~.~IQUIRE I.D. No. 55645 4001 Schoolhouse Lane P.O. Box 219 Center Valley, PA 18034-0219 (610) 797-9000 Attorney for Plaintiff 5 VERIFICATION [c,~J~lz~_~ ' , an authorized representative of the Plaintiff herein, makes this verification on its behalf, and avers that the facts set forth in the within document are true and correct to the best of his knowledge, information and belief and that he is making these statements subject to the penalties of 18 PA C.S.A. § 4904 relating to unsworn falsifications to authorities. EASTERNINDUSTRIES, INC. Dated: °~/~.~ Io-~ By: Exhibit A SUBCONTRACT AGREEMENT This Agreement is made this .2nd day of March, in the year 1999, by and between Angelo Iafrate Construction Company (Contractor) whose address is 26400 She ,r}vood, Warren, Michigatl 48091 and Eastern Industries~ Inc. (Subcontractor) whose address i's P.O. Box 177 Winfield PA 17889-0177 for the following project: whose OWNER is: SUBCONTRACT AGREEMENT NO. 20000.009 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION 555 WALNUT STREET HARRISBURG, PA 17101-1900 CMS NUMBER: 089050 FEDERAL PROJECT NO: 0AC-X089-105 ARTICLE 2 PERRY COUNTY - S.R. 11, SECTION 008 SCOPE OF WORK 2.1 SUBCONTRACTOR'S WORK The Contractor contracts with the Subcontractor as an independent contractor to provide all labor, materials, equipment and services necessary or incidental to complete the work described in Schedule A for the PrOject in strict accordance with, reasonably inferable from the Subcontract Documents, and consistent with the Progress Schedule. The Subcontractor shall perform its work (the Subcontractor's Work) under the general direction of the Contractor and in accordance with the Subcontract Documents. 2.2 CONTRACTOR'S WORK The Contractor's work is the construction and services required of the Contractor to fulfill its obligations pursuant to its agreement with the Owner (the Work). The Subcontractor's Work is a portion of the Work. 2.3 SUBCONTRACT DOCUMENTS The Subcontract Documents include this Agreement, the Owner-Contractor agreement, special conditions, general conditions, specifications, drawings, addenda, Subcontract Change Orders, amendments and any pending and exercised alternates. The Contractor shall make available to the Subcontractor, prior to the execution of the Subcontract Agreement, copies of the Subcontract Documents to which the Subcontractor will be bound. The Subcontractor similarly shall make copies of applicable portions of the Subcontract Documents available to its proposed subcontractors and suppliers. Nothing shall prohibit the Subcontractor from obtaining copies of the Subcontract Documents fi.om the Contractor at any time alter the Sub'contract Agreement is e ecuted 2.4 CONFLICTS In the event of a conflict between this Agreement and the other Subcontract Documents, this Agreement shall govern. 2.5 EXTENT OF AGREEMENT Nothing in this Agreement shall be construed to create a contractual relationship between persons or entities other than the Contractor and Subcontractor. This Agreement is solely for the benefit of the parties, represents the entire and integrated agreement between the parties, and supersedes all prior negotiations, representations, or agreements, either written or oral. 2.6 DEFINITIONS 1. Wherever the term Progress Schedule is used in this Agreement, it shall be read as Project Schedule when that term is used in the Subcontract Documents. 2. Whenever the term Change Order,is used in this Agreement, it shall be read as Change Document when that term is' used in the Subcontract Documents. 3. Unless otherwise indicated, the term Day shall mean calendar day. ARTICLE 3 SUBCONTRACTOR~S RESPONSHIlLITIES 3.1 OBLIGATIONS The Subcontractor binds itself to the Contractor under this Agreement in the same manner as the Contractor is bound to the Owner and will so bind its subcontractors. 3.2 RESPONSH~II.ITIES The Subcontractor agrees to furnish its best skill and judgment in the performance of the Subcontractor's Work and to cooperate with the Contractor so that the Contractor may fulfill its obligations to the Owner. The Subcontractor shall furnish all of the labor, materials, equipment, and services, including but not limited to, competent supervision, shop drawings, samples, tools, and scaffolding as are necessary for the proper performance of the Subcontractor's Work. The Subcontractor shall provide the Contractor a list of its proposed subcontractors and suppliers, and be responsible for taking field dimensions, providing tests, obtaining required permits and affidavits, ordering of materials and all other actions as required to meet the Progress Schedule. 3.3 INCONSISTENCIES AND OMISSIONS The Subcqntractor shall make a careful analysis and comparison of the drawings, specifications, other Subcontract Documents and information furnished by the owner relative to the Subcontractor's Work. Should inconsistencies or omissions appear in the Subcontract Documents, it shall be the duty of the Subcontractor to notify the Contractor in writing within three (3) days of discovery by the Subcontractor. Upon receipt of notice, the Contractor shall instruct the Subcontractor as to the measures to be taken and the Subcontractor shall comply with the Contractor's instructions. If the Subcontractor performs work knowing it to be contrary to any applicable laws, statutes, ordinances, specifications, building codes, rules or regulations without notice to the Contractor and advance approval by appropriate authorities, including the Contractor, the Subcontractor shall assume full responsibility for such work and shall bear all associated costs, charges, fees and expenses necessarily incurred to remedy the violation. Nothing in this paragraph shall relieve the Subcontractor of responsibility for its own errors, inconsistencies and omissions. 3.4 SITE VISITATION The Subcontractor accepts responsibility for the visual inspection of conditions which could affect the Subcontractor's Work at the Project site, and based on that inspection acknowledges its responsibility to satisfactorily perform the Subeontractor's Work without additional expenses to the Contractor. The Subcontractor shall promptly report any discrepancies between its observations and the Subcontract Documents to the Contractor. 3.5 INCREASED COSTS AND/OR TIME The Subcontractor may submit a Claim as provided in Article 7 if Contractor's clarifications or instructions in responses to requests for information are believed to require additional time or cost. If the Subcontractor fails to perform the reviews and compafisons"required in Paragraphs 3.3 and 3.4, above, to the extent the Contractor is held liable to the Owner because of the Subcontractor's failure, the Subcontractor shall pay the costs and damages to the Contractor. that would have been avoided if the Subcontractor had performed those obligations. 3.6 COMMUNICATIONS Unless otherwise provided in the Subcontract Documents and except for emergencies, Subcontractor shall direct all communications related to the Project to the Contractor. 3.7 SUBMITTALS 3.7.1 The Subcontractor promptly shall submit for approval to the Contractor all shop drawings, samples, product data, manufacturers' literature and similar submittals required by the Subcontract Documents. The Subcontractor shall be responsible to the Contractor for the accuracy and conformity of its submittals to the Subcontract Documents. The Subcontractor shall prepare and deliver its submittals to the Contractor in a manner consistent with the Progress Schedule and in such time and sequence so as not to delay the Contractor or others in the performance of the Work. The approval of any Subcontractor submittal shall not be deemed to authorize deviations, substitutions or changes in the requirements of the Subcontract Documents unless express written approval is obtained from the Contractor and Owner authorizing such deviation, substitution or change. In the event that the Subcontract Documents do not contain submittal requirements pertaining to the Subcontractor's Work, ~he Subcontractor agrees upon request to submit in a timely fashion to the Contractor for approval any shop drawings, samples, product data, manufacturers' literature or similar submittals as may reasonably be required by the Contractor, Owner or Architect. 3.7.2 The Contractor, Owner, and Architect are entitled to rely on the adequacy, accuracy and completeness of any professional certifications required by the Subcontract Documents conceming the performance criteria of systems, equipment or materials, including all relevant calculations and any governing performance requirements. 3.8 COORDINATION The Subcontractor shall: 1. Cooperate with the Contractor and all others whose work may interface with the Subcontractor's Work; 2. Specifically note and immediately advise the Contractor of any such interface with the Subcontractor's Work; and 3. Participate in the preparation of coordination drawings and work schedules in areas of congestion. 3.9 SUBCONTRACTOR'S REPRESENTATIVE The Subcontractor shall designate a person, subject to Contractor's approval, who shall be the Subcontraetor's authorized representative. This representative shall be the only person to whom the Contractor shall issue instructions, orders or directiori~, excepiin an emergency. The Subcontractor's representative is · who is agreed to by the Contractor. 3.10 TESTS AND INSPECTIONS The Subcontractor shall schedule all required tests, approvals and inspections of the Subcontractor's Work at appropriate times so as not to delay the progress of the work. The Subcontractor shall give proper written notice to all required parties of such tests, approvals and inspections. The Subcontractor shall bear all expenses associated with tests, inspections and approvals required of the Subcontractor by the Subcontract Documents which, unless otherwise agreed to, shall be conducted by an independent testing laboratory or entity approved by the Contractor and Owner. Required certificates of testing, approval or inspection shall, unless otherwise required by the Subcontract Documents, be secured by the Subcontractor and promptly delivered to the Contractor. 3.11 CLEANUP The Subcontractor shall follow the Contractor's cleanup directions, at all times keep the premises free from debris resulting from the Subcontractor's Work, and broom clean each work area prior to discontinuing work in that area. If the Subcontractor fails to commence compliance with cleanup duties within twenty-four (24) hours after written notification from the Contractor of non-compliance, the Contractor may undertake necessary cleanup measures without further notice and deduct the cost from any amounts due or to become due the Subcontractor. 3.12 SAFETY 3.12.1 The Subcontractor is required to perform the Subcontractor's Work in a safe and reasonable manner. The Subcontractor shall seek to avoid injury, loss or damage to persons or property by taking reasonable steps to protect: 1. Employees and other persons at the site; 2. Materials and equipment stored at the site or at off-site locations for use in performance of the Work; and 3. All property and structures located at the site and adjacent to work areas, whether or not said property or structures are part of the Project or involved in the Work. 4 At a minimum the Subcontractor agrees to comply with the requirements of the Contractor's safety policy. 3.12.2 The Subcontractor shall give all required notices and comply with all applicable rules, regulations, orders and other lawful requirements established to prevent injury, loss or damage to persons or property. 3.12.3 The Subcontractor shall implement appropriate safety measures pertaining to the Subcontraetor's Work and the Project, including establishing safety rules, posting appropriate warnings and notices, erecting safety barriers, and establishing proper notice procedures to protect persons and property at the site and adjacent to the site from injury, loss or damage. 3.1:l.4 The Subcontractor shall exercise extreme care in carrying out any of Subeontraetor's Work which involves explosive or other dangerous methods of construction or hazardous procedures, materials or equipment. The Subcontractor shall use properly qualified individuals or entities to carry out the Subeontractor's Work in a safe and reasonable manner so as to reduce the risk of personal injury or property damage. 3.12.5 The Subcontractor is required to promptly remedy any loss or damage caused to the work, matefiais, equipment and property referred to in Clauses 3.14.1.2 and 3.14.1.3, if said loss or damage is not covered by insurance required under the Subcontract Documents, but only to the extent caused in whole or in part by the Subcontractor and/or persons or entities performing work for or on behalf of the Subcontractor, regardless of tier, who have furnished labor, materials or services relating to the Subcontractor's Work and for whose acts the Subcontractor may be liable. The Subcontractor shall not be required to remedy any loss or damage which is not attributable to the fault or negligence of the Subcontractor or of any person or entity for whose acts the Subcontractor may not be liable. 3.12.6 The Subcontractor is required to designate an individual at the site in the employ of the Subcontractor who shall act as the Subcontractor's designated safety representative with a duty to prevent accident. Unless otherwise identified by the Subcontractor in writing to the Contractor, the designated safety representative shall be the Subcontractor's a fore mentioned representative listed in 3.9. 3.12.7 The Subcontractor has an affirmative duty not to overload' the structures or conditions at the site and shall take reasonable steps not to load any part of the structures, or site so as to give rise to an unsafe condition or create an unreasonable risk of personal injury or property damage. The Subcontractor shall have the right to request, in writing, from the Contractor loading information concerning the structures at the site. 3.12.8 The Subcontractor shall give prompt written notice to the Contractor of any accident involving personal injury requiting a physician's care, any property damage exceeding Five Hundred Dollars ($500.00) in value, or any failure that could have resulted in serious personal injury, whether or not such an injury was sustained. 3.12.9 Prevention of accidents at the site is the responsibility of the Contractor, Subcontractor, and ail other subcontractors, persons and entities at the site. Establishment ora safety program by the Contractor shall not relieve the Subcontractor or other parties of their safety responsibilities. The Subcontractor shall establish its own 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 Subcontract Documents. The Subcontractor shall comply with the reasonable recommendations of insurance companies having an interest in the Project, and shall stop any part of the Subcontractor's Work which the Contractor deems unsafe until corrective measures satisfactory to the Contractor shall have been taken. The Contractor's failure to stop the Subcontractor's unsafe practices shall not relieve the Subcontractor of the responsibility therefor. The Subcontra~)tor shall notify the Contractor immediately following an accident and promptly confirm ihe notice in writing. A detailed written report shall be furnished if requested by the Contractor. The Subcontractor shall indemnify the Contractor for fines, or penalties imposed on the Contractor as a result of safety violations, but only to the extent that such fines, or penalties are caused by the Subcontractor's failure to comply with applicable s~ety requirements, and only to the extent that such fines or penalties are determined to be the Subcontractor's responsibility based upon the particular failure of compliance cited, and not due to prior or repeated safety violations by the Contractor. 3.13 PROTECTION OF TIlE WORK The Subcontractor shall take necessary precautions to properly protect the Subcontractor's Work and the work of others fi.om 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 remedy the damage and deduct its cost from any amounts due or to become due the Subcontractor, unless such costs are recovered under applicable property insurance. 3.14 PERMITS, FEES, LICENSES AND TAXES The Subcontractor shall give timely notices to authorities pertaining to the Subcontractor's Work, and shall be responsible for all permits, fees, licenses, assessments, inspections, testing and taxes necessary to complete the Subcontractor's Work in accordance with the Subcontract Documents. To the extent reimbursement is obtained by the Contractor from the Owner under the Owner-Contractor agreement, the Subcontractor shall be compensated for additional costs resulting fi.om taxes enacted after the date of this Agreement. 3.15 ASSIGNMENT OF SUBCONTRACTOR'S WORK The Subcontractor shall not assign the whole nor any part of the Subcontractor's Work without prior written approval of the Contractor. 3.16 IIAZARDOUS MATERIALS To the extent that the Contractor has rights or obligations under the Owner-Contractor agreement or by law regarding hazardous materials as defined by the Subcontract Document within the scope of the Subcontrantor's Work, the Subcontractor shall have the same rights or obligations. 3.17 MATERIALS SAFETY DATA (MSD) SHEETS The Subcontractor shall submit to the Contractor all Material Safety Data Sheets required by law for materials or substances necessary for the performance of the Subcontrantor's Work. MSD sheets obtained by the Contractor from other subcontractors or sources shall be made available to the Subcontractor by the Contractor. 3.18 LAYOUT RESPONSIBILITY AND LEVELS The Contractor shall establish horizontal and vertical control based on information supplied by the own'er. 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 lay out or perform Subcontractor's Work correctly. The Subcontractor shall exercise prudence so that the actual final conditions and details shall re, sult in alignment of finish surfaces. 3.19 WARRANTIES The Subcontractor warrants that all materials and equipment furnished under this Agreement shall be new, unless otherwise specified, of good quality, in conformance with the Subcontract Documents, and free from defective workmanship and materials. Warranties shall commence on the date of Substantial Completion of the Work or a designated portion. CORRECTION OF WORK 3.20.1 If the Architect or Contractor rejects the Subcontractor's Work or the Subeontractor's Work is not in conformance with the Subcontract Documents, the Subcontractor shall promptly correct the Subcontractor's Work whether it had been fabricated, installed or completed. The Subcontractor shall be responsible for the costs of correcting such Subcontractor's Work, any additional testing, inspections, and compensation for services and expenses of the Architect and Contractor made necessary by the defective Subcontractor's Work. 3.20.2 In addition to the Subcontractor's obligation under Paragraph 3.21, the Subcontractor agrees to correct all Subcontraetor's Work performed under this Agreement which proves to be defective in workmanship or materials within a period of one year from the date of Substantial Completion of the Subcontractor's Work or for as long a period of time as may be required by Contract Documents. Substantial Completion of the Subcontractor's Work, or a designated portion, occurs on the date when construction is sufficiently complete in accordance with the Contract Documents. 3.20.3 Not Applicable 3.20.4 If the Subcontractor's correction or removal of Subcontractor's Work destroys or damages completed or partially completed work of the Owner, the Contractor or any separate contractors, the Subcontractor shall be responsible for the cost of correcting such destroyed or damaged construction. 3.20.5 If portions of Subcontractor's Work which do not conform with the requirements of the Subcontract Documents are neither corrected by the Subcontractor nor accepted by the Contractor or Owner, the Subcontractor shall remove such Subcontract6r's Work from the Project site if so directed by the Contractor. 3.21 MATERIALS OR EQUIPMENT FURNISHED 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 exercise proper care in receiving, handling, storing and installing such items. The Subcontractor shall examine the items provided and report to the Contractor in writing any items it may discover that do not conform to requirements of the Subcontract Documents. The Subcontractor shall not proceed to install nonconforming itero_s without further instructions from the Contractor. Loss or damage due to acts or omissions of the Subcontractor shall be deducted from any amounts due or to become due the Subcontractor. 3.22 SUBSTITUTIONS No substitutions shall be made in the Subcontractor's Work unless permitted in the Subcontract Documents, and only upon the Subcontractor first receiving all approvals required under the Subcontract Documents for substitutions. 3.23 USE OF CONTRACTOR'S EQUIPMENT The Subcontractor, its agents, employees, subcontractors or suppliers shall use the Contractor's equipment only with the express written permission of the Contractor's designated representative and in accordance with the Contractor's terms and conditions for such use. If the Subcontractor or any of its agents, employees, subcontractors or suppliers utilize any of the Contractor's equipment, including machinery, 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 9 for any loss or damage (including personal injury or death) which may arise from such use, except to the extent that such loss or damage is caused by the negligence of the Contractor's employees operating the Contractor's equipment. 3.24 WORK FOR OTHERS Until final completion of the Project, the Subcontractor agrees not to perform any work directly for the Owner or any tenants, or deal directly with the Owner's representatives in connection with the Project, unless otherwise directed in writing by the Contractor. 3.25 SYSTEMS AND EQUIPMENT STARTUP With the assistance of the Owner's maintenance personnel and the Contractor, the Subcontractor shall direct the check-out and operation of systems and equipment for readiness, and assist in their initial startup and the testing of the Subcontractor's Work. 3.26 COMPLIANCE WITH LAWS The Subcontractor agrees to be bound by, and at its own costs comply with, ail federal, state and locai laws, ordinances and regulations (the Laws) applicable to the Subcontractor's Work, including but not limited to, equal employment opportunity, minority business enterprise, women's business enterprise, disadvantaged business enterprise, safety and all other Laws with which the Contractor must comply. 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 with Laws, including, but not limited to, any fines, p~naities or corrective measures, except as provided in Subparagraph 3.14. 3.27 CONFIDENTIALITY To the extent the Owner-Contractor agreement provides for the confidentiality of any of the Owner's proprietary or otherwise confidential information disclosed in connection with the performance of this Agreement, the Subcontractor is equally bound by the Owner's confidentiality requirements. 3.28 ROYALTIES, PATENTS AND COPYRIGItTS The Subcontractor shall pay gl royalties and license fees which may be due on the inclusion of any patented or copyrighted materials, methods or systems selected by the Subcontractor and incorporated in the Subcontractor's Work. The Subcontractor shall defend, indemnify and hold the Contractor and Owner harmless from all suits or claims for infringement of any patent rights or copyrights arising out of such selection. The Subcontractor shall be liable for all loss, including all costs, expenses, and attorneys' fees, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Subcontract Documents. However, if the Subcontractor has reason to believe that a particular design, process or product required by the Subcontract Documents is an infringement of a patent, the Subcontractor shall promptly furnish such information to the Contractor or be responsible to the Contractor and Owner for any loss sustained as a result. ARTICLE 4 CONTRACTOR'S RESPONSIBILITIES 4.1 CONTRACTOR'S REPRESENTATIVE The Contractor shall designate a person who shall be the Contractor's authorized representative. The Contractor's representative shall be the only person the Subcontractor shall look to for instructions, orders and/or directions, except in an emergency. The Contractor's representative is the Project Manager 4.2 4.3 PAYMENT BOND REVIEW The Contractor Angelo Iafrate Construction Company, d/b/a Denton Construction Company has provided the Owner a payment bond. The Contractor's payment bond for the Project, if any, shall be made available by the Contractor for review and copying by the Subcontractor. OWNER'S ABILITY TO PAY 4.3.1 The Subcontractor shall have the right upon request to receive from the Contractor such information as the Contractor has obtained relative to the Owner's financial ability to pay for the Work. The Contractor, however, does not warrant the accuracy or completeness of the information provided by the Owner. 4.3.2 If the Subcontractor does not receive the information referenced in Subparagraph 4.3. I with regard to the Owner's ability to pay for the Work as required by the Contract Documents, the Subcontractor may request the information from the Owner and/or the. Owner's lender. 4.4 CONTRACTOR APPLICATION FOR PAYMENT Upon request, the Contractor shall give the Subcontractor a copy of the most current Contractor application for payment reflecting the amounts approved and/or paid by the Owner for the Subcontractor's Work performed to date. 4.5 INFORMATION OR SERVICigS The Subcontractor is entitled to request through the Contractor any information or services relevant to the performance of the Subcontractor's Work which is under the Owner's control. To the extent the Contractor receives such information and services, the Contractor shall provide them to the Subcontractor. The Contractor, however, does not warrant the accuracy or completeness of the information provided by the Owner. 4.6 STORAGE AREAS The Contractor shall allocate adequate storage areas, if available, for the Subcontractor's materials and equipment during the course of the Subcontractor's Work. Unless otherwise agreed upon, the Contractor shall reimburse the Subcontractor for the additional costs of having to relocate such storage areas at the direction of the Contractor. 4.7 TIMELY COMaMUNICATiONS The Contractor shall transmit to the Subcontractor, with reasonable promptness, all submittals, transmittals, and written approvals relative to the Subcontractor's Work. Unless otherwise specified in the Subcontract Documents, communications by and with the S~bcontractor's subcontractors, materialmen and suppliers shall be through the Subcontractor. 4.8 USE OF SUBCONTRACTOR'S EQUIPMENT The Contractor, its agents, employees or suppliers shall use the Subcontractor's equipment only with the express written permission of the Subcontractor's designated representative and in accordance with the Subeontractor's terms and conditions for such use. If the Contractor or any of its agents, employees or suppliers utilized any of the Subcontractor's equipment, including machinery, tools, scaffolding, hoists, lifts or similar items owned, leased or under the control of the Subcontractor, the Contractor shall defend, indemnify and be liable to the Subcontractor as provided in Article 9 for any loss or damage (including personal injury or death) which may arise from such use, except to the extent that such loss or damage is caused by the negligence of the Subcontraetor's employees operating the Subcontractor's equipment. ARTICLE 5 PROGRESS SCHEDULE 5.1 TIME IS OF THE ESSENCE Time is of the essence for both parties. They mutually agree to see to the performance of their respective obligations so that the entire Project may be completed in accordance with the Subcontract Documents and particularly the Progress Schedule. 5.2 SCHEDULE OBLIGATIONS The Subcontractor shall provide the Contractor with any scheduling information proposed by the Subcontractor for the Subcontractor's Work. In consultation with the Subcontractor, the Contractor shall prepare the schedule for performance of the Work (the Progress Schedule) and shall revise and update such schedule, as necessary, as the Work progresses. Both the Contractor and the Subcontractor shall be bound by the Progress Schedule. The Progress Schedule and all subsequent changes and additional details shah be submitted to the Subcontractor promptly and reasonably in advance of the required performance. The Contractor shall have the right to determine and, if necessary, change the time, order and priority in which the various portions of the Work shall be performed and all other matters relative to the Subcontractor's Work. 5.3 OWNER CAUSED DELAY If the commencement and/or progress of the Subcontractor's Work is substantially delayed without the fault or responsibility of the Subcontractor, the time for the Subcontraetor's Work shall be extended by Subcontract Change Order to the extent obtained by the Contractor under the Subcontract Documents, and the Progress Schedule shall be revised accordingly. It shall be a condition precedent to any right of the Subcontractor to recover any damages for delay caused by the Owner that the Contractor first recover such damages from the Owner, or other person or entity liable for the delay. The amount which the Subcontractor may recover from the Contractor shall be limited to the amount actually recovered by the Contractor on behalf of the Subcontractor. 5.4 CONTRACTOR CAUSED DELAY Nothing in this Article shall preclude the Subcontractor's recovery of delay damages caused by the Contractor. 5.5 LIQUIDATED DAMAGES If the Subcontract Documents provide for liquidated or other damages for delay beyond the completion date set forth in the Subcontract Documents, and such damages are assessed, the Contractor may assess a share of the damages, both direct and consequential, against the Subcontractor in proportion to the Subcontractor's share of the responsibility for the delay. This Paragraph shall not 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, both direct and consequential, caused by the Subcontractor's delay. 5.6 MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES 5.6,1 To the extent the Owner-Contractor agreement provides for a mutual waiver of consequential damages by the Owner and the Contractor, the Contractor and Subcontractor waive claims against each other for consequential damages arising out of or relating to this Agreement, including to the extent provided in the Owner-Contractor-agreement, damages for principal office expenses and the compensation of personnel stationed there; loss of financing, business and reputation; and for loss of profit. To the extent applicable, this mutual waiver applies to consequential damages due to termination by the Contractor or the Owner in accordance with this Agreement or the Owner-Contractor agreement. To the extent the Owner- Contractor agreement does not preclude the award of liquidated damages, nothing contained in this Paragraph shall preclude the imposit~ion of such damages, if applicable in accordance with the requirements of the Subcontrac£ Documents. 5.6.2 Damages for which the Contractor is liable to the Owner including those related to Subparagraph 9.1.1 are not consequential damages for the purpose of this waiver. ARTICLE 6 SUBCONTRACT AMOUNT As full compensation for performance of this Agreement, Contractor agrees to pay Subcontractor in current funds for the satisfactory performance of the Subcontractor's Work subject to all applicable provisions of the Subcontract for quantities paid by owner: Item of Work Quantity Unit Unit Price Total See - Schedule ESTIMATED AMOUNT OF SUBCONTRACT PER BASE BID QUANTrlfES $ ARTICLE 7 CHANGES IN TI~E SUBCONTRACTOR'S WORK 7.1 SUBCONTRACT CHANGE ORDERS When the Contractor orders in writing, the Subcontractor, without nullifying this Agreement, shall make any and ail changes in the Subcontractor's Work which are within the general scope of this Agreement. Any adjustment in the Subcontract Amount shall be authorized by a Subcontract Change Order. No adjustments shall be made for any changes performed by the Subcontractor that have not been ordered by the Contractor. A Subcontract Change Order is a written instrument prepared by the Contractor and signed by the Subcontractor stating their agreement upon the change in the Subcontractor's Work. 7.2 CONSTRUCTION CHANGE DIRECTIVES To the extent that the Subcontract Documents provide for Construction Change Directives in the absence of agreement on the terms of a Subcontract Change Order, the Subcontractor shall promptly comply with the Construction Change Directive and be entitled to apply for interim payment if the Subcontract Documents so provide. 7.3 UNKNOWN CONDITIONS If in the performance of the Subcontractor's Work the Subcontractor finds latent, concealed or subsurface physical conditions 'Milch differ materially from the conditions the Subcontractor reasonably anticipated, or if physical conditions are materially different from those normally encountered and generally recognized as inherent in the kind of work provided for in this Agreement, the Subcontract Price and/or the Progress Schedule shall be equitably adjusted by a Subcontract Change Order within a reasonable time after the conditions are first observed. ~ The adjustment which the Subcontractor may receive shall be limited to the adjustment the Contractor receives from the Owner on behalf of the Subcontractor. 7.4 CLAIMS RELATING TO OWNER The Subcontractor agrees to make all claims_for which the Owner is or may be liable in the manner and within the time limits provided in the Subcontract Documents for like claims by the Contractor upon the Owner and in sufficient time for the Contractor to make such claims against the Owner in accordance with the Subcontract Documents. At the Subcontractor's request and expense to the extent agreed upon in writing, Contractor agrees to permit the Subcontractor to prosecute a claim in the name of the Contractor for the use and benefit of the Subcontractor in the manner provided in the Subcontract' Documents for like claims by the Contractor upon the Owner. 7.5 CLAIMS RELATING TO CONTRACTOR The Subcontractor shall give the Contractor written notice of all claims not included in Paragraph 7.4 within five (5) days of the Subcontractor's knowledge of the facts giving rise to 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 7.4 shall be resolved in the manner provided in Article 11. 7.6 ADJUSTMENTS IN SUBCONTRACT AMOUNT If a Subcontract Change Order requires an adjustment in the Subcontract Amount, the adjustment shall be established by one of the following methods: 1. Mutual acceptance of an itemized lump sum 2. Unit prices as indicated in the Subcontract Documents or as subsequently agreed to by the pm-ties and paid according to quantities received by Contractor from the owner. 3. Costs determined in a manner acceptable to the parties and a mutually acceptable fixed or percentage fee. 4. Another method provided in the Subcontract Documents 13 7.7 SUBSTANTIATION OF ADJUSTMENT If the Subcontractor does not respond promptly or disputes the method of adjustment, the method and the adjustment sh0ll 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 Subcontract Amount, an allowance for overhead and profit of the percentage provided in Paragraph 7.8. The Subcontractor may contest the reasonableness of any adjustment determined by the Contractor. The Subcontractor shall maintain for the Contractor's review and approval an appropriately itemized and substantiated accounting, of the following items attributable to the Subcomract Change Order: Labor costs, including Social Security, health, welfare, retirement and other fringe benefits as normo:!ly required, and state workers' compensation insurance. Costs of matefiais, supplies and equipment, whether incorporated in the Subcontractor's Work or consumed, including transportation costs. 3. Costs of renting machinery and equipment other than hand tools. Costs of bond and insurance premiums, permit fees and taxes attributable to the change. Costs of additional supervision and field office personnel services necessitated by the change. 7.8 Adjustments shall be based on net change in Subeontractor's reasonable cost of performing the changed Subcontractor's Work plus, in case of a net increase in cost, an agreed upon sum for overhead and profit as specified in the contract between Contractor and Owner. 7.9 NO OBLIGATION TO PERFORM The Subcontractor shall not be obligated to perform changes in the Subcontractor's Work until a Subcontract Change Order has been executed in accordance with Paragraphs 7.2 and 7.11 have been issued by the Contractor. 7.10 EMERGENCEES In an emergency affecting the safety of persons and/or property, the Subcontractor shall act, at its discretion, to prevent threatened damage, injury or loss. Any change in the Subcontract Amount and/or the Progress Schedule on account of emergency work shall be determined as provided in this Article. 7.11 INCIDENTAL CHANGES The Contractor may direct the Subcontractor to perform incidental changes in the Subcontractor's Work which do not involve adjustments in the Subcontract Amount or Subcontract Time. Incidental changes shall be consistent with the scope and intent of the Subcontract Documents. The Contractor shall initiate an incidental change in the Subcontractor's Work by issuing a written order to the Subcontractor. Such written notice shall be carded out promptly and are binding on the parties. ARTICLE 8 PAYMENT 8.1 PROGRESS PAYMENTS 8.1.1 RETAINAGE The rate ofretainage shall be 0 percent ( . 0 %) which is 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. If the Subcontractor has furnished a bond or security, its work is satisfactory and the Subcontract Documents provide for reduction of retainage at a specified percentage of completion, the Subco~ntractor's retainage shall also be reduced when the Subcontractor's work has attained the same percentage of completion and the Contractor's retainage for the Subcontractor's Work has been so reduced by the Owner. However, if the Subcontractor does no provide such bond or security, the rate of retalnage shall be ._Q_0 percent ¢ 0 %). 8.2.:l STORED MATERIALS Unless otherwise provided in the Subcontract 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 to protect the Owner's and Contractor's interest including transportation to the site. 8.2.3 TIME OF PAYMENT 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 Subcontractor hereby acknowledges that it relies on the credit of the Owner, not the Contractor for payment of Subcontractor's Work. Progress payments received from the Owner for the Subcontractor for satisfactory performance of the Subcontraetor's Work shall be made no later than seven (07) days after receipt by the Contractor of payment from the Owner for the Subcontractor's Work. 8.2.4 PAYMENTS WITHHELD The Contractor may withhoid a Subcontractor payment or nullify a previously approved Subcontractor payment, in whole or in part, as may reasonably be necessary to protect the Contractor from loss or damage based upon: The Subcontractor's repeated failure to perform the Subcontractor's Work as required by this Agreement. Loss or damage arising out of or relating to this Agreement and caused by the Subcontractor to the Owner, Contractor or others to whom the Contractor may be liable. 3. The Subcontractor's failure to properly pay for labor, materials, equipment or supplies furnished in connection with the Subcontractor's Work. Rejected, nonconforming or defective Subcontractor's Work which has not been corrected in a timely fashion. Reasonable evidence of delay in performance of the Subcontractor's Work such that the Work will not be completed within the Subcontract Time, and that the unpaid balance of the Subcontract Amount is not sufficient to offset the liquidated damages or actual damages that may be sustain by the Contractor as a result of the anticipated delay caused by the Subcontractor. Reasonable evidence den~onstrating that the unpaid balance of the Subcontract Amount is insufficient to cover the cost to complete the Subcontractor's Work. Third party claims involving the Subcontractor or reasonable evidence demonstrating that third party claims are likely to be filed unless and until the Subcontractor furnishes the Contractor with adequate security in the form of a security bond, letter of credit or other collateral or commitment which are sufficient to discharge such claims if established. The Contractor shall give written notice to the Subcontractor, at the time of disapproving or nullifying a payment stating its specific reasons for such disapproval or nullification. When the above reasons for disapproving or nullifying an application for payment are removed, payment will be made for amounts previously withheld. 8.3 FINAL PAYMENT 8.3.1 APPLICATION Upon acceptance of the Subcontractor's Work by the Owner and the Contractor and receipt from the Subcontractor of evidence of fulfillment of the Subcontractor's obligations in accordance with the Subcontract Documents and Subparagraph 8.3.2, the Contractor shall incorporate the Subcontractor's final payment into the Contractor's next application for payment to the Owner without delay, or notify the Subcontractor if there is a delay and the reasons therefor. 8.3.2 REQUIllEMENTS Before the Contractor shall be required to incorporate the Subcontractor's final payment into the Contractor's next application for payment, the Subcontractor shall submit to the Contractor: An affidavit that all 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. 2. Consent of surety to final payment, if required. 3. Satisfaction of required close-out procedures. Certification that insurance required by the Subcontract Documents to remain in effect beyond final payment pursuant to Clauses 9.2.3.1 and 9.2.6 is in effect and will not be canceled or allowed to expire without at least thirty (30) days' written notice to the Contractor unless a longer period is stipulated in this Agreement. Other data, if required by the Contractor or Owner, such as receipts, releases, and waivers oflians to the extent and in such form as may be designated by the Contractor or Owner. Written warrant[es, equipment manuals, startup and testing required in Paragraph 3.28. 7. As-built drawings if required by the Subcontract Documents. 8.3.3 TIME OF PAYMENT Receipt of final 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 Subcontractor hereby acknowledges that it relies on the credit of the Owner, not the Contractor for payment of Subcontractor's Work. Final payment of the balance due of the Contract Price shall be made to the Subcontractor: Upon receipt of the Owner's waiver of all claims related to the Subcontractor's Work except for unsettled liens, unknown defective work, and non-compliance with the Subcontract Documents or warranties. Within seven (07) days after receipt by the Contractor of final payment from the Owner for such Subcontractor's Work. 8.3.4 FINAL PAYMENT DELAY If the Owner or its designated agent does not issue a certificate for final payment or the Contractor does not receive such payment for any cause which is not the fault of the Subcontractor, the Contractor shall promptly inform the Subcontractor in writing. The Contractor shall also diligently pursue, with the assistance of the Subcontractor, the prompt release by the Owner of the final payment due for the Subeontractor's Work. At the Subcontractor's request and expense, to the extent agreed upon in writing, the Contractor shall institute reasonable legal remedies to mitigate the damages and pursue payment of the Subcontractor's final payment including interest. 8.3.5 WAIVER OF CLAIMS Final payment shall constitute a waiver of all claims by the Subcontractor relating to the Subcontractor's Work, but shall in no way relieve the Subcontractor of liability for the obligations assumed under Paragraphs 3.21 and 3.22, or for faulty or defective work or service discovered after final payment. 8.4 LATE PAYMENT INTEREST To the extent obtained by the Contractor under the Subcontract Documents, progress payments or final payment due and unpaid under this Agreement shall bear interest from the date payment is due at the rate provided in the Subcontract Documents. 8.5 CONTINUING OBLIGATIONS Provided the Contractor is making payments on or has made payments to the Subcontractor in accordance with the terms of this Agreement, the Subcontractor shall reimburse the Contractor for any costs and expenses roi' any claim, obligation or lien asserted before or after final payment is made that arises from the performance of the Subcontractor's Work. The Subcontractor shall reimburse the Contractor for costs and expenses including attorney's fees and costs and expenses incurred by the Contractor in satisfying, discharging or defending agains.t, any sue, h claims, obligations or lien including any action brought or judgment recovered. 8.6 PAYMENT USE RESTRICTION Payment received by the Subcontractor shall be used to satisfy the indebtedness owed by the Subcontractor to any person furnishing labor or materials for use in performing the Subcontractor's Work before it is used for any other purpose. 8.7 PAYMENT USE VERIFICATION The Contractor shall have the right at all times to contact the Subcontraetor's subcontractors and suppliers to ensure that they are being paid promptly by the Subcontractor for labor or materials furnished for use in performing thc Subcontractor's Work. 8.8 PARTIAL LII~N 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. ' 8.9 SUBCONTRACTOR PAYMENT FAILURE Upon payment by the Contractor, the Subcontractor shall promptly pay its subcontractors and suppliers the amounts to which they are entitled. In the event the Contractor has reason to believe that labor, materials or other obligations incurred in the performance of the SUbeontractor's Work are not being paid, the Contractor may give written notice of a potential claim or lien to the Subcontractor and may take any steps deemed necessary to assure that progress payments are t~tilized to pay such obligations, including but not limited to the issuance of joint checks. If upon receipt of notice, the Subcontractor does not (a) supply evidence to the satisfaction of the Contractor that the moneys owing have been paid; or (b) post a bond indemnifying the Owner, the Contractor, the Contractor's surety, if any, and the premises from a claim or lien, 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 that may arise out of or relate to any such claim or lien. 8.10 SUBCONTRACTOR ASSIGNMENT OF PAYMENTS The Subcontractor shall not assign any moneys due or to become due under this Agreement, without the written consent the Contractor, unless the assignment is intended to create a new security interest within the 18 scope of Article 9 of the Uniform Commercial Code. Should the Subcontractor assign all or any part of any moneys due or to become due under this Agreement to create a new security interest or for any other purpose, the instrument of assignment shall contain a clause to the effect that the assignee's fight 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 Subeontraetor's Work. 8.11 PAYMENT NOT ACCEPTANCE Payment to the Subcontractor does not constitute or imply acceptance of any portion of the Subcontractor's Work. ARTICLE 9 INDEMNITY, INSURANCE AND WAIVER OF SUBROGATION 9.1 E~DEMNITY 9.1.1 INDEMNITY To the fullest extent permitted by law, the Subcontractor shall defend,' indemnify and hold harmless the Contractor, the Contractor's other subcontractors, the Architect/Engineer, the Owner and their agents, consultants and employees (the Indemnitees) from and against all claims, damages, loss and expenses, including but not limited to attorney's fees, costs and expenses arising out of or resulting from the performance of the Subeontractor's Work. These obligations shall not be interpreted to reduce or negate any other rights or obligations of indemnity otherwise existing with regard as to any party or person described in this Article. 9.1.2 NO LIMITATION ON LIABILITY In any and all claims against the Indemnitees 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 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Subcontractor under workers' compensation acts, disability benefits acts or other employee benefit acts. 9.2 INSURANCE 9.2.1 SUBCONTRACTOR'S INSURANCE Before commen~ing the Subcontractor's Work, and as a condition of payment, the Subcontractor shall purchase and maintain insurance that will protect it from the claims arising out of its operations under this Agreement, whether the operations are by the Subcontractor, or any of its consultants or subcontractors or anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. 9.2.2 MINIMUM LIMITS OF LIABILITY The Subcontractor shall maintain at least the limits 0fliability in a company satisfactory to the Contractor as set forth below: General Liability $1,000,000 Each Occurrence $2,000,000 General Aggregate per Project $1,000,000 Products/Completed Operations Aggregate $1,000,000 Personal and Advertising Injury Automobile Liability $1,000,000 Combined Single Limit Statutory PIP and PPI Covera~ges Worker's Compensation and Employer's Liability $500,000/$500,000/$500,000 9.2.3 NUMBER OF POLICIES Commercial General Liability Insurance and other liability insurance may be arranged under a single poli~:y for the full limits requked or by a combination of underlying policies with the balance provided by an Excess or Umbrella Liability Policy. 9.2.4 CANCELLATION, RENEWAL AND MODIFICATION The Subcontractor shall maintain in effect all insurance coverages required under this Agreement at the Subcontractor's sole expense and with insurance companies acceptable to the Contractor. The policies shall contain a provision that coverage will not be canceled or not renewed until at least thirty (30) days' prior written notice has been given to the Contractor. Certificates of insurance showing required coverage to be in force pursuant to Subparagraph 9.2.2 shall be filed with the Contractor prior to 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 as desired for the Contractor's benefit and charge the expense to the Subcontractor, or terminate this Agreement. 9.2.5 WAIVER OF SUBROGATION 9.2.5.1 The Contractor and Subcontractor waive all rights against .each other, the Owner and the Architect/Engineer, and any of their respective consultants, subcontractors, and sub subcontractors, agents and employees, for damages caused by perils to the extent covered by the proceeds &the insurance provided in Subparagraph 9.2.2, except such fights as they may have to the insurance proceeds. The Subcontractor shall require similar waivers from its subcontractors. 9.2.6 ENDORSEMENT If the policies of insurance referred to in this Article require an endorsement to provide for continued coverage where there is a waiver of subrogation, the owners of such policies will cause them to be so endorsed. 20 ARTICLE I0 CONTRACTOR'S RIGHT TO PERFORM SUBCONTRACTOR'S RESPONSIBILITIES AND TERMINATION OF AGREEMENT 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 Progress Schedule, or fails to make prompt payment to its workers, subcontractors or suppliers, or disregards laws, ordinances, rules, regulations or orders of any public agthority having jurisdiction, or otherwise is guilty of a material breach of a provision ~f this Agreement, the Subcontractor shall be deemed in default of this Agreement. If the Subcontractor falls within three (3) days after written notification to commence and continue satisfactory correction of the default with diligence and promptness, then the Contractor without prejudice to any other rights or remedies, shall have the right to any or all of the following remedies: 1. Supply workers, materials, equipment and facilities as the Contractor deems necessary for the completion of the Subcontractor's Work or any part which the Subcontractor has failed to complete or perform after written notification, and charge the cost, including reasonable overhead, profit, attorney's fees, costs and expenses to the Subcontractor; 2. Contract with one or more additional contractors to perform such part &the Subcontractor's Work as the Contractor determines will provide the most expeditious completion of the Work, and charge the cost to the Subcontractor as provided under Clause 10.1.1.1: and/or 3. Withhold any payments due or to become due the Subcontractor pending corrective action in amounts sufficient to cover losses and compel performance to the extent required by and to the satisfaction &the Contractor. 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 CONTRACTOR If the Subcontractor falls to commence and satisfactorily continue correction of a default within three (3) days after written notification issued under Subparagrapl~ 10. lA, then the Contractor may, in lieu of or in addition to Subparagraph 10.1.1, issue a second written notification, to the Subcontractor and its surety, if any. Such notice shall state that if the Subcontractor fails to commence and continue correction of a default within seven (7) days of the written notification, the Agreement will be deemed terminated. A written notice of termination shall be issued by the Contractor to the Subcontractor at the time the Subcontractor is terminated. The Contractor may furnish those materials, equipment and/or employ such workers or subcontractors as the Contractor deems necessary to maintain the orderly progress of the Work. All costs incurred by the Contractor in performing the Subcontractor's Work, including reasonable overhead, profit and attorney's fees, costs and expenses, shall be 21 deducted from any moneys due or to become due the Subcontractor. The Subcontractor shall be liable for the payment of any amount by which such expense may exceed the unpaid balance of the Subcontract Amount. At the Subeontractor's request, the Contractor shall provide a detailed accounting of the costs to finish the Subeontractor's Work. 10.1.3 USE OF SUBCONTRACTOR'S EQUIPMENT If the Contractor performs work under this Article, either directly or through other subcontractors, the Contractor or other subcontractors shall have the right to take and use any materials, implements, equipment, appliances or tools furnished by, or belonging to the Subcontractor and located at the Project site for the purpose of completing any remaining Subeontractor's Work. Immediately upon completion of the Subcontract Work, any remaining materials, implements, eqUipment, appliances or tools not consumed or incorporated in performance of !he Subcontraetor's Work, and furnished by, belonging to, or d~livered to the Project by or on behalf of the Subcontractor, shall be returned to the Subcontractor in substantially the same condition as when they were taken, normal wear and tear excepted. 10.2 BANKRUPTCY 10.2.1 TERMINATION ABSENT CURE If the 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 requked by this Agreement or otherwise is unable to comply with the requirements for assuming this Agreement under tho applicable provisions of the Bankruptcy Code. 10.2.2 INTERIM REMEDIES If the Subcontractor is not performing in accordance with the Progress Schedule 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, may avail itself of such remedies under this Article as are reasonably necessary to maintain the Progress Schedule. The Contractor may offset against any sums due or to become due the Subcontractor ail costs incurred in pursuing any of the remedies provided 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 costs incurred may exceed the unpaid balance of the Subcontract Price. 10.3 SUSPENSION BY OWNER Should the Owner suspend the Work or any pan which includes the Subcontractor's Work and such suspension is not due to any act or omission of the Contractor, or any other person or entity for whose acts or omissions the Contractor may be liable, the Contractor shall noti~ the SulScontraetor in writing and upon receiving notification the Subcontractor shall immediately suspend the Subcontractor's Work. In the event of Owner suspension, the Contractor's liability to the Subcontractor shall be limited to the extent of the Contractor's recovery on the Subcontraetor's behalf under the Subcontract Documents. The Contractor agrees to cooperate with the Subcontractor, at the Subcontractor's expense, in the prosecution of any Subcontractor claim arising out of an Owner suspension and to permit the Subcontractor to prosecute the claim, in the name of the Contractor, for the use and benefit of the Subcontractor. 10.4 TERMINATION BY OWNER Should the Owner terminate its contract with the Contractor or any part which includes the Subcontractor's Work, the Contractor shall notify the Subcontractor in writing within three (3) days of the termination and upon written notification, this Agreement shall be terminated and the Subcontractor shall immediately stop the Subcontractor's Work, follow all of Contractor's instructions, and mitigat6 all costs. In the event of Owner termination, the Contractor's liability to the Subcontractor shall be limited to the extent of the Contractor's recovery on the Subcontractor's behalf under the Subcontract Documents. The Contractor agrees to cooperate with the Subcontractor, at the Subcontractor's expense, in the prosecution of any Subcontractor cl~m arising out of the Owner termination and to permit the Subcontractor to prosecute the ~laim, in'the name of the Contractor, for the use and benefit of the Subcontractor, or assign the claim to the Subcontractor. 10.$ CONTINGENT ASSIGNMENT OF Ti:I'IS AGREEMENT The Contractor's contingent assignment of this Agreement to the Owner, as provided in the Owner-ContraCtor agreement, is effective when the Owner has terminated the Owner-Contractor agreement for eanse and has accepted the assignment by notifying the Subcontractor in writing. This contingent assignment is subject to the prior rights of a surety that may be obligated under the Contractor's bond, if any. Subcontractor consents to such assignment and agrees to be bound to the assignee by the terms of this Agreement, provided that the assignee fulfills the obligations of the Contractor. 10.6 SUSPENSION BY CONTRACTOR The Contractor may order the Subcontractor in writing to suspend all of 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 Work or interruptions of the Subcontractor's Work for short periods of time shall not be considered a suspension. The Subcontractor shall notify the Contractor in writing within ten (10) days after receipt of the Contractor's order of the effect of such order upon the Subcontractor's Work. To the extent allowed under the Owner-Contractor agreement, the Subcontract Amount or Progress Schedule shall be adjusted by Subcontract Change Order for any increase in the time or cost of performance of this Agreement caused by such suspension. No claim under this Paragraph shall be allowed for any costs incurred more than ten (10) days prior to the Subcontractor's notice to the Contractor. Neither the Subcontract Amount nor the Progress Schedule shall be adjusted for any suspension, to the extent that performance would have been suspended, due in whole or in pan to the fault or negligence of the Subcontractor or by a cause for which Subcontractor would have been responsible. The Subcontract Amount shall not be adjusted for any suspension to the extent that performance would have been suspended by a cause for which the Subcontractor would have been entitled only to a time extension under this Agreement. 10.7 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 Subeontractor's Work performed by the Subcontractor prior to the Contractor's wrongful action, 23 including reasonable overhead and profit on the Subcontraetor's Work performed, less prior payments made. 10.8 TERMINATION BY SUBCONTRACTOR If the Subeontraetor's Work has been stopped for thirty (30) days because the Subcontractor has not received progress payments or has been abandoned or suspended for an unreasonable period of time not due to the fault or neglect of the Subcontractor, then the Subcontractor may terminate this Agreement upon giving the Contractor seven (7) days' written notice. Upon such termination, Subeonti'actor shall be entitled to recover from the Contractor payment for ail Subcontractor's Work satisfactorily performed but not yet paid for, including reasonable overhead, profit and damages. The Contractor's liability for any other damages claimed by the Subcontractor under such circumstances shall be extinguished by the Contractor pursuing said damageo and claims against the Owner, on the Subeontractor's behalf, in the manner provided f6i' in Subparagraphs 10.3 and 10.4 of this Agreement. ARTICLE 11 DISPUTE RESOLUTION 11.1 INITIAL DISPUTE RESOLUTION If a dispute arises out of or relates to this Agreement or its breach, the parties shall endeavor to settle the dispute first through direct discussions. If the dispute cannot be resolved through direct discussions, the parties shall participate in mediation under the Construction Industry Mediation Rules of the American Arbitration Association before recourse to any other form of binding dispute resolution. The location of the mediation shall be the location of the Project. Once a party files a request for mediation with the other party and with the American Arbitration Association, the parties agree to commence such mediation within thirty (30) days of filing of the request. Either party may terminate the mediation at any time after the first session, but the decision to terminate must be delivered in person to the other party and the mediator. Engaging in mediation is a condition precedent to any other form of binding dispute resolution. 11.2 WORK CONTINUATION AND PAYMENT Unless otherwise agreed in writing, the Subcontractor shall continue the Subcontract's Work and maintain the Progress Schedule during any dispute resolution proceedings. If the Subcontractor continues to perform, the Contractor shall continue to make payments in accordance with this Agreement. 11.3 NO LIMITATION OF 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. 11.4 MULTIPARTY PROCEEDING The parties agree that to the extent permitted by Subcontract Document ail parties necessary to resolve a claim shall be parties to the same dispute resolution proceeding. To the extent disputes between the Contractor and Subcontractor involve in whole or in part disputes between the Contractor and the Owner, disputes between the Subcontractor and the Contractor shall be decided by the same tribunal and in the same forum as disputes between the Contractor and the Owner. In the event the provisions for resolution of disputes between the Contractor and the Owner contained in the Subcontract Documents do not permit consolidation or joinder with disputes of third parties, such as the Subcontractor, resolution of disputes between the Subcontractor and the Contractor involving in whole or in part disputes between the Contractor and the Owner shall be stayed pending conclusion of any dispute resolution proceeding between the Contractor and the Owner. At the conclusion of those proceedings, disputes between the Subcontractor and the Contractor shall be submitted again to mediation pursuant to Paragraph 11.1. Any disputes not resolved by mediation shall be decided by the dispute resolution process designated in the Subcontract Documents.~ 11.5 COST OF DISPUTE RESOLUTION The cost of any mediation proceeding shah be shared equally by the parties participating. The prevailing party in any dispute arising out of or relating to this Agreement or its breach that is resolved by a dispute resolution procedure designated in the Subcontract Documents shall be entitled to recover from the other party reasonable attorney's fees, costs and expenses incurred by the prevailing party in connection with such dispute resolution process. ARTICLE 12 MISCELLANEOUS PROVISIONS 12.1 GOVERNING LAW This Agreement shall be governed by the law in effect at the location of the Project. 12.2 SEVERABILITY The partial or complete invalidity of any one or more provisions of this Agreement shall not affect the validity or continuing force and effect of any other provision. 12.3 NO WAIVER OF PERFORMANCE The failure of either party 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 of its rights, shall not be construed as a waiver or relinquishment of term, covenant, condition or right with respect to further performance. 12.4 TITLES The tires 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. 12.5 IMPARTIAL AGREEMENT The parties expressly agree that they both had opportunity to negotiate its terms and to obtain the assistance of counsel in reviewing its terms prior to execution. Therefore, this Agreement shall be construed neither against nor in favor of either party, but shall be construed in a neutral manner. 25 IN WITNESS WHEREOF, the parties to have executed this Subcontract Agreement as of the day and year first written above. SUBCONTRACTOR: Signed in the presence ot~ Witness Subcontractor By Date Prim Name Print Title CONTRACTOR: An~elo lafrate Construction Company Signed in the presence off Date ANGELO IAFRATE CONSTRUCTION CO. Frederick C. Chac¢ Print Name Area Manager Print Title 26 Project Number: 20000 CMS No: 089050 Perry County S,R. 11, Section 008 SCHEDULE"A" SUBCONTRACT FOR ASPHALT PAVING (9) Cost Item Description Unit Quantity Unit Price Extension Code Number 8530- 0305- Bituminous Concrete SY 23,273 $9.40 $218,766.20 140 0003 Base Course, 4" Depth 8530- 0305- Bituminous Concrete SY 12,709 $8.90 $113,110.10 150 0004 Base Course, 4 ~" Dep. 8530- 0305- Bituminous Concrete SY 76,822 $15.90 $1,221,469.80 160 0015 Base Course 10" Depth 8530- 0420- Bituminous Wearing SY 12,387 $3,95 $48,928.65 200 0313 Course ID-2 1 ~" SRL-G 8530- 0420- Bituminous Wearing SY 17,264 $3.75 $64,740.00 210 0333 Course ID-2 1%" SRL-L 8530- 0421- Bituminous Binder SY 12,387 $4.80 $59,457.60 220 0202 Course~ ID-2, 2" Depth 8530- 0421- Bituminous Binder Ton 925 $40.00 $37,400.00 230 0500 Course ID-2 0/~.. 8530- 8651- Paved Shoulders I'"z~---~, SY 7,203 $12.00 890 0103 Type 1 - I ~t,~,.~-~,~,f.") $86,436.00 8530- 0608- Mobilization LS 1.00 $55,000.00 $55,000.00 580 0001 8530- 9300- Asphalt Treated Perm. SY 361,944 $4.00 $1,447,776.00 3140 0001 Base Course 4" Depth 8530- 9300- Asphalt Treated Perm. Ton 63,875 $21.00 $1,341,375.00 3150 0003 Base Course TOTAL $4,694,459.35 -' PRICE CONTRACT, QUANTITIES MAY VARY WITH NO CHANGE TO THE UNIT PRICE. ~ ~ .-~ j:~ ~/~ 10. 11. 12. 13. Project Number: 20000 CMS No: 089050 Perry County S.R. 11, Section 008 SCHEDULE"A" SpECIALTERMSANDCONDITIONS Contractor will supply traffic control for Subcontractor's operations. If SubcontraCtor fails to show up for a prearranged lane closure, Contractor shall deduct $300.00 from payments due to Subcontractor for Contractor's cost for installing and removing the lane closure. Subcontractor will mobilize to perform the requested work within 48 hours of receipt of notice from Contractor. Subcontractor will clean up his own trash, tools and equipment each day work is performed. Subcontractor to perform his work in accordance with all Commonwealth of Pennsylvania Department of Transportation Standards, Specifications, Special Provisions and Plans required for this project. No Performance and Payment bond will be required. Contractor to provide engineering layout, PennDot notification of schedule, erosion and sediment control and access to work areas. Subcontractor's prices include ail required mobilization's to complete all phases of his work. Pdces are based on Asphalt Index of $107.00 Per Ton. Subcontractor to place Asphalt Treated Permeable Base Course using automatic g~.d_e stringline set by Contractor. --'¢~,0,~1,c~ ~ Finished grade tolerances for _/~? Asphalt Treat' ! ed Permeable Base C~m~e sh~~ (x~-~.lf finished grade exceed~-{~ than corrections~shall be made to bring the grade to withir¢ the tolerances allowed or Subcontractor shall be liable for concrete yield losses in area's where ATPM is lower than g~-~.y~, ~n~or pe4353~ties jml2osed due to insufficif~,~ptb,in areas where ATPM Contractor and S'u~b~-o~~eck finish grade on' ~TPM at the end of each day's production and determine if any corrections or allowances have to be made. Subcontractor is required to submit a Safety Program to the Contractor. Subcontractor will be required to attend a Progress/Safety meeting once eve~j two weeks. Meeting will be held in the Contractor's field office at 10:00AM on Fdday. The first meeting date will be Friday March 26~h at 10:00AM. 2 Project Number: 20000 CMS No: 089050 Perry County $.R. 11, Section 008 EXHIBIT "B" ADDITIONAL TERMS FOR SUBCONTRACTORS All employees will wear appropriate work shoes, work clothes and hard hats while on the Project site. In addition, personal protection devices will be used when and wherever warranted or required, i.e., safety glasses/goggles, safety belts and lanyards, etc. A copy of Contractors' Safety and Health Manual will be available at the project Iocetion for your review. Pay quantities will be turned in daily to Contractor's Project Engineer using Subcontractor's Daily Quantity Report, which shall be forwarded to you under separate cover. It is Subcontractor's responsibility to agree to pay quantities with PENNDOT's representative on a daily basis for inclusion Jn the monthly estimate. Failure to do so may delay payment. Subcontractor will submit requisitions using a format to be approved by Contractor. Subcontractor is required to submit proof of full coverage insurance, as required by the Contract Documents, pdor to commencing work. Angelo lafrate Construction Company and Owner shall be named on the policy as an additional insured. The insurance policy shall provide Angelo lafrate Construction Compa6y with a fifteen (15) day wdtten notification of insurance termination or change to the policy, This Subcontract will be fully executed prior to start of construction. Subcontractor will participate in any pre-construction, progress, schedule update or EEO meetings when requested by Contractor. Reasonable notice will be given to allow for attendance. Special caution will be exercised when working near any residential, commercial and public facilities. Utility location services will be notified sufficiently in advance of your work and all personnel will demonstrate an appropriate and professional attitude towards the public. It is Subcontractor's responsibility to redly the location of all existing utilities in compliance with the provisions of the Contract and any governing ru es and regulations. Any conduct by your employees that intentionally causes damage to personal or public property, or act in a manner disrespectful to the public will be grounds for terminating your contract. Particular attention will be paid to timely submission of EEO and Subcontract Documents required by the Commonwealth of Pennsylvania Department of Transportation. Delay in submitting these documents may result in the delay of payment for work performed in the pedod of time dudng which said submittals are delinquent. EXHIBIT "B" ADDITIONAL TERMS FOR SUBCONTRACTORS (Continued) 11. 12. 13. 14. 15. 16. 17. Subcontractor will furnish PENNDOT all necessary matedal certifications and/or inspection reports at the time said materials are delivered to the site. Subcontractor will fumish "Source of Supply" for all materials to be incorporated in its work as required by the Pdme Contract within ten (10) days of the execution of this subcontract agreement. Subcontractor will submit documentation as required by the Pdme Contract, to receive payment for stored materials at least ten (10) days pdor to the estimate cut off period as established by PENNDOT. If applicable, Subcontractor will maintain its status as a certified DBE/MBE/WBE contractor with the PENNDOT for the duration of this contract and file all reports as required by such DBE/MBF_/VVBE status. Particular attention will be paid to the following special provisions: Predetermined minimum wage rates (Copy Attached) Required contract provisions for Federal Aid Construction Contracts (FHWA-1273) (Copy Attached) Notice of Requirement for Affirmative Action to ensure equal employment opportunity (Executive Order 11246), (Copy Attached) Certified payrolls must be submitted weekly. Any excerpts from the Contrac[ Documents that have been attached to this Subcontract Agreement have been included for information purposes only. It is Subcontractor's responsibility to assure familiarity with all provisions of the Contract and to comply with them accordingly. The absence of any attachments extracted from the Contract does not imply that they ara not applicable to this Subcontract Agreement in their entirety. Reference in this Subcontract Agreement to the "Architect" or "Engineer" shall be construed to refer to any representative of the Owner (PENNDOT) duly authorized by the same to enforce the provisions of the Contract. At the end of Article 8.8 add "Subcontractor shall submit partial lien or claim waivers and affidavits to Contractor for approval prior to the first interim payment for work performed, Said first Payment shall be conditioned upon the prior approval of this document by Contractor." 2 ?age I of 9 GENERAL DECISION PA980014 10/09/98 PA14' General Decision Nu~er PA980014 Superseded General Decision No. PA970014 State: Pennsylvania Construction Type: HEAVY HIGHWAY County(ies): ADAMS LEBANON SCHUYLKILL BERKS LEHIGH SNYDER BRADFORD LUZEHNE SULLIVAN C~/~BON LYCOMING SUSQUE~L%NNA COLUMBIA MONROE TIOGA CUMBERLAND MONTOUR UNION DAUPHIN NORTHAMPTON WAYNE JUNIATA NORTHUMBERLJkND WYOMING LACKAWANNA PERRY YORK L~CASTER PIKE HEA%~f AMD HIGHWAY CONSTRUCTION PROJECTS (Excluding Sewer Groutin Projects and Excluding Sewage and Water Treatment Plant Projects Modification Nunfoer Publication Date 0 02/13/1998 1 05/29/1998 2 06/26/1998 3 07/10/1998 4 09/04/1998 5 10/09/1998 COUNTY(ies): ADAMS LEBANON SCHUYLKILL BERKS LEHIGH SNYDER BRADFORD LUZERNE SULLIVAN CARBON LYCOMING SUSQUEHANNA COLUMBIA MONROE TIOGA CUMBERLAND MONTOUR UNION DAUPHIN NORTHAMPTON WAYNE JUNIATA NORTHUMBERLAND WYOMING LACKAWANNA PERRy YORK LANCASTER PIKE C~P0121A 05/01/1998 Rates Fringes EXCEPT LEHIGH ~ND NORTHi~MPTON COUNTIES CARPENTERS/PILEDRIVERMEN 18,98 ........... 5.35 C~/{P0191C 05/01/1994 Rates Fringes REMAINDER OF YORK COUNTY MILLWRIGHTS 18.33 ................ 4.39 CARP0259C 05/01/1995 Rates Fringes ADAMS, BRADFORD, CRRBON (Banks, Lusanne, Lehigh and Northern part of Packer Townships}, CUMBERLAND, COLUMBIA, DAUPHIN, ~JNIATA, LANCASTER, LEBAMON, LUZERNE, LYCOMING, MONTOUR, NORTBUMBERI~%ND, PERRy, SCHUYLKILL, SNYDER, SULLIV/LN, TIOGA, UNION, WYOMING, AMD YORK (New Cun~berland Army Depot and Harrisburg York State Airport} COUNTIES MILLWRIGHTS 19.36 6.43 CA/{P0261E 05/01/1997 Rates LACKAWANNA, SUSQUEHA/~NA, PIKE, AND WAYNE COUNTIES Fringes MILLWRIGHTS 19.77 6.15 CARP0492B 05/01/1996 BERKS COUNTY Rates Fringes MILLWRIGHTS 20.00 6.82 * CARP0600I 05/01/1998 LEHIGH AND NORTHAMPTON COUNTIES: Rates Fringes CARPENTERS/PILEDRIVERMEN 20.58 8.96 * CARP1906B 07/01/1998 LEHIGH AND NORTHAMPTON COUNTIES Rates Fringes MILLWRIGHTS 22.80 9.46 ELEC0126C 06/02/1997 Rates Fringes AD~/4S, CUMBERLAND, DAUPHIN, I~CASTER, LEBANON, J~3NIATA, PERRY AND YORK COUNTIES LINE CONSTRAUCTION: Linemen 21.35 14.75%+2.30 Winch Truck Operators 14.95 14.75%+2.30 Truck Drivers 13.88 14.75%+2.30 Groundmen 12.81 14.75%+2.30 BERKS AND LEHIGH COUNTIES LINE CONSTRUCTION: Linemen 23.05 14.75%+2.30 Winch Truck Operators 16.14 14.75%+2.30 Truck Drivers 14.98 14.75%+2.30 Groundmen 13.83 14.75%+2.30 NORTHAMPTON COUNTY LINE CONSTRUCTION: Linemen and Cable Splicers 25.25 14.75%+2.00 Groundmen 14.97 14.75%+2.00 ELEC1319A 11/30/1997 Rates Fringes BRADFORD, CARBON, COLUMBIA, LACKAWANNA, LUZERNE, LYCOMING, MONROE, MONTOUR, NORTHUMBERLAND, PIKE, SCHUYLKILL, SNYDER, SULLIVAN, SUSQUEHANNA, TIOGA, UNION, WAYNE, AND WYOMING COUNTIES LINE CONSTRUCTION: Lineman 23.76 5.5%+3.50 Winch Truck Operators 16.87 5.5%+3.50 Groundmen 14.97 5.5%+3.50 Truck Drivers 16.63 5.5%+3.50 ELEC2011A 05/01/1988 Rates Fringes Page~ of 9 ADAMS, BERK$, CUMBERLAND, DAUPHIN, JUNIATA, LANCASTER, LEBANON, LEHIGH, NORTHAMPTON, AND PERRY COUNTIES LINE CONSTRUCTION (RAILROAD ONLy) GROUP 1 12.34 6%+.06+A GROUP 2 12.34 6%+.60+A GROUP 3 10.78 6%+.60+A FOOTNOTE: A. PAID HOLIDAYS: New Year's Day, Memorial Day, Independence Day, Labor Day, Election Day, Thanksgiving Day and ' Christmas Day, provided the employee works the day before and after the holiday. LINE CONSTRUCTION CLASSIFICATIONS GROUP 1: Linemen I'.~go 3 o1'9 GROUP 2: Hoisting equipment - when erecting complete towers, erecting framed structures, erecting steel transmission poles, erecting railroad pole extensions and crossbeams and when operating personnel lift baskets. Tension pulling equipment under energized conditions - parallel with other energized circuits or above energized circuits on same structure not to include crossovers. Bundled conductor stringing including static conductors on bundled conductor lines. Excavating augers 36" inches in diameter or larger, 5/8 cubic yard, backhoe and larger, trencher over four feet in depth, bulldozer D-6 (caterpillar) or larger, and blade on finish grade work. GROUP 3: Operators of all other equipment. ENGI0542C 05/01/1998 Rates Fringes POWER EQUIPMENT OPERATORS: HIGHWAY CONSTRUCTION AND WATER LINES CONSTRUCTION (OFF PLANT SITE) GROUP 1 18.28 29.5%+4.46 GROUP 2 i7.34~ 29.5%+4.16 GROUP 3 16.78 29.5%+3.98 GROUP 4 16.55 29.5%+3.97 GROUP 5 15.83 29.5%+3.97 GROUP 6 18.51 29.5%+4.46 POWER EQUIPMNET OPERATORS CLASSIFICATIONS GROUP 1 - Pile drivers, all types of cranes, all types of backhoes, draglines, keystones, all types of shovels, derricks, trench shovels, trenching machines, paver (blacktop and concrete), gradalls, all front end loaders, tandem scrapers, pippin types backhoes, boat captains, batch plant with mixer, drill self contained (drill-master type), CMI Autograde, milling machine, vemeer saw, conveyor loader (euclid type) scraper and tournapulls, bulldozers and tractors, concrete pumps, motor patrols, mechanic welders, log skidder, side boom, bobcat type (with attachments), boring machines including directional boring machines, chipper with boom, hydro ax, machines similar to the above including remote control equipment. GROUP 2 - Spreaders, asphalt plant engineers, rollers (high grade finishing), machine similar to above, including remote control equipment. GROUP 3 - Welding machine, well points, compressors, pump heaters, farm tractors, form line graders, ditch witch type trencher, road finishing machines, concrete breaking machines, rollers, miscellaneous equipment operator, seaman pulverizing mixer, power broom, seeding spreader, tireman- (for power equipment ) conveyors, loaders other than EUC type, conveyors, driller second class, machines similar to the above including remote control equipment. GROUP 4 - Fireman and grease truck GROUP 5 - Oilers and deck hands GROUP 6 - Ail machines with booms (including jibs, masts, leads, etc.) 100 ft. and over. ***TOXIC/HAZXARDOUS WAST REMOVAL*** Add 20 per cent to basic hourly rate for all classifications ENGI0542V 05/01/1998 Rates Fringes HEAVY CONSTRUCTION: POWER EQUIPMENT OPERATORS: GROUP 1 20.26 29.5%+4.46+A GROUP 2 19.98 29.5%+4.46+A GROUP 3 17.44 29.5%+3.99+A GROUP 4 16.31 29.5%+3.97+A GROUP 5 15.85 29.5%+3.97+A GROUP 6 14.97 29.5%+3.87+A FOOTNOTE: A: PAID HOLIDAYS: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day, the the employee works the day before and the day after the holiday. ***TOXIC/HAZXARDOUS WASTE REMOVAL*** Add 20 per cent to basic hourly rate for all classifications POWER EQUIPMENT OPERATORS CLASSIFICATIONS GROUP 1: Machines doing hook work, any m~chine handling machinery, cable spinning m~chines, helicopters, machines similar to the above, including remote control equipment. GROUP 2: Ail types of cranes (except cranes doing hook work), backhoes, cableways, draglines, keystones, shovels, derricks, trench shovels, trenching machines, hoist with two towers, pavers 21E and over, overhead cranes, building hoists (double drum) gradalls, mucking machines in tunnels, front end loaders, tandem scrapers, pippin type backhoes, boat captains, batch plant operators concrete drills, self-contained rotary drills, fork lifts, 20ft, lift and over, scrapers~ tournapulls, spreaders, bulldozers and tractors, rollers (high grade finishing), mechanic-welder, motor patrols, concrete ptumps, grease truck, bob cat type (all attachments), boring machines including directional boring machines, hydro ax, side boom, vermeer saw, chipper with boom, machines similar to the above including remote control equipment GROUP 3: Conveyors, building hoist (single dr%un), high or low pressure boilers, drill operators, well drillers, asphalt plant engineers, ditch witch type trencher, second class driller, forklift truck under 20ft. lift, stump grinder tireman grinder, tireman (for power equipment), machines similar to above including remote control equipment. GROUP 4: Welding machines, well points, compressors, pumps, heaters, farm tractors, form line graders, road finishing machines, concrete breaking machines, rollers, seaman pulverzing mixer, power boom, seeding spreader, chipper without boom, machines similar to the above including remote control equipment. GROUP 5: Fireman. GROUP 6: Oilers and deck hands (personnel boats). Page 4 of 9 Pag~ 5 of 9 IRON0036B 07/01/1998 Rates Fringes CARBON, LEHIGH (Except Fogelsville), NORTHAMPTON AND MONROE (Except Tobyhanna Army Depot) IRONWORKERS: Projects Under 25 Million Dollars 22.25 12.40 Projects Over 25 Million Dollars 22.75 12.40 IRON0404H 07/01/1998 Rates Fringes ADAMS, CUMBERLAND, DAUPHIN, LEBAMON (Western 3/4), LANCASTER (Western part), LYCOMING, MONTOUR, NORTHUMBERLAND, JUNIATA, PERRY, SCHUYLKILL (Western tip to include the twps. of Fearnot, Good Spring, Hegins, Jolett, Klingerstown, Muir, Pittman Haas, Rough and Ready, Sacramento, Spring Glen, Suedberg, Tower City, and Valley View), SNYDER, UNION, AMD YORK COUNTIES IRONWORKERS: Structural, Ornamental 20.00 9.37 Reinforcing 17.25 9.37 IRON0420F 07/01/1998 Rates Fringes BERKS, L~NCASTER (Eastern Part), LEBANON (Eastern 1/4), LEHIGH (Fogelsville), AND SCHUYKILL (Remainder) COUNTIES IRONWORKERS: STRUCTURAL, ORNAMENTAL, AND REINFORCING: Projects $100,000,OOO and greater, (all work) 20.00 11.95 Projects less than $100,000,OOO 19.50 11.95 IRON0489B 07/01/1998 Rates Fringes BRADFORD, COLUMBIA, LACKAWANNA, LUZERNE, MONROE (Tobyhanna Depot only), PIKE, SULLIVAN, TIOGA, SUSQUEHANNA, WAYNE, WYOMING, CARBON (Northern tip - McAdoo), LYCOMING (Southern tip - Hughsville) IRONWORKERS: Structural and Ornamental 21.65 12.70 Reinforcing 18.75 9.71 LABO0158A 05/01/1998 Rates Fringes I~%BORERS: GROUP 1 16.41 4.60 GROUP 2 16.61 4.60 GROUP 3 16.96 4.60 GROUP 4 17.19 4.60 GROUP 5 17.25 4.60 GROUP 6 17.63 4.60 GROUP 7 12.00 4.60 GROUP 8 17.05 4.60 GROUP 9 17.34 4.60 GROUP 10 17.82 4.60 GROUP 11 19.62 4.60 LABORERS CLASSIFICATIONS GROUP 1= Asphalt, tampers, concrete pitmen, puddlers & rubbers, Highway guardrail, right of way and property line fence, Highway slab renforcng placers, laborers, landscape, planters, seeders and arborists, ~gazine tenders, railroad trackmen, & signalmen, leaser beam men (pipe laying, paving machine) GROUP 2: Pnuematic and Electric tool operator jackhammers, paving breakers, concrete saws, whacker vibrators, sheet hammers, steward, chain saws, pipelayers, asphalt rake, lute or screed men, concrete block layers GROUP 3: Caisson-open air below 8 feet, cofferdam open air below 8 feet where excavations for circular caissons and cofferdams 8 ft and below level of natural grade adjacent to starting point, form setters (road) wagon drill diamond point drill, gunite nozzle operators GROUP 4: Blasters GROUP 5: Reinforcing steel placers, bonding, aligning and securing and burning and welding in conjunction with reinforing steel GROUP 6: Concrete surfaces GROUP 7: Flaggers FREE AIR TUNNELS AND ROCK SHAFTS: GROUP 8: Outside laborers in conJuction tunnels & rock shafts GROUP 9: Chuck Tenders, Muckers, Nippers, Miners GROUP 10: Mine=s, Drillers, Blasters, Pneumatic Shield Operators Lining, Spotting & Timers Workmen, Reinforcing Steel placers, Bonding, Aligning and Securing Welders and Concrete Surfaces. GROUP 11: Hazardous/Toxic handler PLAS0008F 05/01/1995 MONROE COUNTY: Rates Fringes CEMENT MASONS 18.54 7.15 PLAS0055B 05/01/1996 COLUMBIA COUNTY: Rates Fringes CEMENT MASONS 19.95 5'~37 PLAS05920 05/01/1998 Rates Fringes BERKS (Except Northeastern part), LEBANON (Eastern part) LANCASTER (Northeastern part). In Berks County through East Greenville, Huffs Church, Fredericksville, Dryville, Lyon Station, Kutztown, Kr~msville and Stoney Run to Lehigh County Line, Thence along Lehigh County Line to Schuylkill County Line to Lebanon County Line, along Lebanon County Line to Route 501 North to Myerstown, Then South through Myerstown to PA Turnpike in Lancaster County, East on Turnpike to Morgantown in Berks County) CEMENT MASONS 20.00 5.14 BERKS (Northeastern part lying North of a line starting from the Southern boundary line of Lehigh County continuing through Huffs Church, Fredericksville, Dryville, Lyon Station, Kutztown, Krumsville, and Stoney run in Berks County to the Lehigh County line), CARBON, LEHIGH, NORTHAMPTON (Northwest part including the Page 6 of 9 Page 7 of 9 towns of Walnutport, Bath, and Northampton) COUNTIES CEMENT MASONS 20.13 6.40 The following portions of LANCASTER, YORK, ADAMS AND CUMBERLAND COUNTIES (Within the following Boundary Lines: starting at the Maryland State Line, North on the Lancaster-Chester County Line to Berks County Line. North to the PA Turnpike, West on the Turnpike to Route 501. North on Route 501 to Lacnaster-Dauphine County Line, then West to the Susquehanna River, cross the river to Route 920 and continue to Goldsboro, Lewisberry and Rossville to Dillsburg, thence to Route 15 to Heidlersburg, thence on . Route 234 to Junction of Route 334, up Route 334 to Route 34 to junction of road immediately South of Hunters' Run; Then to Pine Grove Furnace, Continue on Route 233 to Mont Alto; Thence on Route 997 to road immediately South of Fayetteville; Thence through New Franklin to Marion; Thence to St. Thomas, then on Route eo through Fort Loudon to Franklin County Line at Tuscarora Mts. Then South on the Franklin-Fulton County Line to Maryland State Line) CEMENT MASONS 19.00 6.75 BRADFORD, LACKAWAMNA, LUZERNE, LYCOMING, SCHUYLKILL, SULLIVAN, TIOGA, UNION AND WYOMING COUNTIES CEMENT M~%SONS 20.58 3.55 CUMBERLAND, DAUPHIN, FRANKLIN, FULTON, JUNIATA, PERRY, SNYDER; and parts of ADAMS, LEBANON AND YORK COUNTIES; NORTHUMBERLAND COUNTY (Malta, Dalmatia, Mandata, Urban, Hebe, Berndon, Bed Cross, Rebuck, Greenbrier, Line Mountain, Gowen City, Locust Gap, Kulpmont, Atlas, Excelsior, Treverton, Dornsife, Fishers Ferry, Augustaville, Sunbury, Stonington, Paxinos, Weigh Scales, Shamokin, Mt. Carmel, Natalie, Bear Gap, Elysburg, Snydertown, Fort Aususta, Priestley, House, Northu/nberland, Riverside, and Marion Heights; MONTOUR COUNTY (Grovania, Danville, Mausdale and Moresburg); NORTHUMBERLAND COUNTY (South of the Susquehanna River); MONTOUR COUNTY (South of Route 11 including the Town of Danville) CEMENT MASONS 19.30 5.65 TEAM0229F 05/01/1998 Rates Fringes ADAMS, BERKS, CARBON, COLUMBIA, CUMBERL4%ND, DAUPHIN, JUNIATA, LACKAWANA, LANCASTER, LEBANON, LEHIGH, LUZERNE, LYCOMING, MONROE, MONTOUR, NORTHAMPTON, NORTHUMBERLAND, PERRY, PIKE, SCHUYKILL, SNYDER, SULLIVAN, SUSQUEHA/~NA, UNION, WAYNE, WYOMING, AND YORK COUNTIES TRUCK DRIVERS GROUP 1 21.43 GROUP 2 21.50 GROUP 3 21.99 BRADFORD AND TIOGA COUNTIES TRUCK DRIVERS GROUP 1 13.38 GROUP 2 13.45 GROUP 3 13.94 8.05 8.05 8.05 TRUCK DRIVERS CLASSIFICATIONS GROUP 1 - Stake body truck (single axle, dumpster) GROUp 2 - Dump trucks, tandem and batch trucks, semi-trailers, agitator mixer trucks, Ready-mix and dumpcrete type vehicles, asphalt distributors when used for transportation, stake body truck (tandem) Page 8, of 9 GROUP 3 - Euclid-type, off highway equipment-back or belly dump trucks and double-hitched equipment, straddle (ross) carrier, low-bed trailers WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29 CFR 5.5(a) (1) {v)). In the listing above, the "SU" designation means that rates listed under that identifier do not reflect collectively bargained wage and fringe benefit rates. Other designations indicate unions whose rates have been determined to be prevailing. WAGE DETEP~4INATION APPEALS PROCESS 1.) Has there been an initial decision in the matter? This can be: * an existing published wage determination * a survey underlying a wage determination ~ a Wage and Hour Division letter setting forth a position on a wage determination matter * a conformance (additional classification and rate) ruling On survey related matters, initial contact, including requests for summaries of surveys, should be with the Wage and Hour Regional Office for the area in which the survey was conducted because those Regional Offices have responsibility for the Davis-Bacon survey program. If the response from this initial contact is not satisfactory, then the process described in 2.) and 3.) should be followed. With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the Branch of Construction Wage Determinations. Write to: Branch of Construction Wage Determinations Wage and Hour Division U. S. Department of Labor 200 Constitution Avenue, N. W. Washington, D. C. 20210 2.) If the answer to the question in 1.) is yes, then an interested party (those affected by the action) can request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Pa~t 1.8 and 29 CFR Part 7}. Write to: Wage and Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N. W. Washington, D. C. 20210 The request should be accompanied by a full statement of the interested party,s position and by any information (wage payment data, project description, area practice material, etc.) that the requestor considers relevant to the issue. 3.) If the decision of the Administrator is not favorable, an interested party may appeal directly to the Administrative Review Board (formerly the Wage Appeals Board). Write to: Administrative Review Board U. S. Department of Labor 200 Constitution Avenue, N. W. Washington, D. C. 20210 4.) All decisions by the Administrative Review Board are final. END OF GENERAL DECISION Page 9 of 9 II. V. VI. VII. VI~I. IX. X. XI. XII. P~EQUZRED COIT~RAC~ PROVXSZONS FEDERAL-AID CONSTRuCTzoN CONTRa~S General . . Nondiscrimin~tlo~ [ ........... Nonsegregated Facili~ige ........ Payment of Predetermined Statements and Payrolls ' ' ' Record of Mat°rials, Suppli. L'a d'L bgr' Subletting or Assigning the Contract . . Safety= Accident Prevention False Statements Concerning Hi h~a ~rgJ~c~s' . Implementation of Clean Air Act and Federal Wats: Pollution Control Act . . Voluntary Exclusion .... Certification Regarding Use ATTACHMENTS Page A. Employment Preference for Appalachian Contracts (included in Appalachian contracts only) GENERAL 1. These contract provisions shall apply to ail work performed on the con~:ract by the contractor,s own organization andwith the assistance of workers unde~ the contractor's immediate superintendence and to all work performed on the contract by piecework, station work, or by subcontract. 2. Except as otherwise provided for in each section, the contractor shall insert in each subcontract ali of the stipulations contained in these Required Contract Provisions, and further require their 'inclusion in any lower tier subcontract or purchase order that may in turn be made. The Required Con~ract Provisions shall not be incorporated by reference in any case. The prime contractor shall be respensible for compliance by any subcontractor or lower tier subcontractor with these Required Contract Provisions. 3. A breach of any of the stipulations contained in these Required COntract Provisions shall be sufficient grounds for termination of the contract. 4. A breach of the following clauses of the Require~ Contract Provisions may also be grounds for debarment as provided in 29 CFR 5.12= Section I, paragraph 2~ Section IV, paragraphs 1, 2, 3,'4, and 7~ Section V, paragraphs i and 2a through 2g. .5. Disputes arising out of the labor standards provisions of Sectio~ IV (except paragraph 5) and Section V of these Required Contract Provisions shall not be subject to the-general disputes clause of this contract. Such disputes shali be resolved in accordance with the procedures of the U.S. Department of Labor (DOL) as set forth in 29 CFR 5, .6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the DOL, or the contractor,s employees or their representatives. 6. Selection of Labor= During the performance of this contra~t, the contractor shall not: a. discriminate against labor from any other S~ate, possession, or territory of the United States (except for employment preference for Appalachian contracts, when applicable, as specified in Attachment A), or - i - b. e~ploy convict Labor for any 9u~pose within the L~m£ts of the unless £t is labor performed by cohvicts who are on parole, supervised or p~obat~on. II. NO~ISCRIMINATION (Applicable to all Federal-aid construction con,=acts and to all related eubcont=acts of $10,000 or more.) 1. Equal ~plo~ment ~un~t~= E~al emplo~ent oppor~unity (EEO) retirements not to disc=lminate and to take affl~ative ac~on ~o assure e~al opportunity ae est forth under laws, executive orde=s, rules, regulations (28 CFR 35, 29 CFR 1630 and 41 CFR 60) and orde=s of the Secretary of Labo= as modified by the provis~one p=eec=~bed herein, and ~posed pu=suant =o 23 U.S.C. 140 constitute the EEO and s~cific affl~ative action standards fo= the con~rac~or'e p~Ject act~v~ties under this contract. The E~al Op~=tunity Construction Cont=act Specif~cations se= forth under 41 CFR 60-4.3 and the provie~one of ~he ~erlcan Disabilities Act of 1990 (42 U.S.C. 12101 e~ seq.) set forth under 28 CFR 35 and 29 CFR 1630 are ~ncor~rated by reference in this contract. In the execution of this con~rac~, the con~ractor agree~ to comply with ~he following minimum specific re~irement activities of EEO= a. The contractor w~l work with the S~ate highway agency (S~) and' the Federal Gover~ent in carrying out EEO obligations and ~n their revl~ofhis/he= activities under the contract. b. The contractor will accept as his operating ~licy the following statement~ "It is ~he ~licy of this Company to assure that applicants are employed, and that employees are trea~ed during emplo~ent, without regar.d to their race, rel~glon, sex, color, national orig~n, age or disability. Such action shall include= ~plo~ent, u~rading, demotion, or' transfer~ rec~ltment recruitment adver=ising~ layoff or te~lnation~ rates of pay o= other fo~s of com~nsation~ and selection fo= training, including apprenticeship, preapprenticeship, and/or on-the-.job training." 2. EEO Officer= The contractor will designate and make known to the contracting officers an EEO Officer who will have the res~nsibility for and mus~ be cap~le of effectively a~nistering and promoting an active contractor progr~ of EEO and who must be asslgned ads,ate authority and res~ns~bil~ty do 3. Dissemination of Polic~: All me,ere of the contractor's staff who are ' authorized to hire, su~rvise, promote, and discharge employees, or who reco~end such action, or who are substantially involved in such action, wll! be made fully cognizant of, and will ~plement, the contractor's EEO ~licy and contractual res~onsibili~iee to provide EEO in each grade and classification of To ensure that the above agreement w~11 be met, the following ac=ions will be taken as 'a m~n~um= a. Perlod~c meetings of supervisory and ~reonnel office employees will be conducted before the s~art of ~rk and then not less often than once every six months, at which t~e the contractor's EEO~cy and its ~pl~entation will be reviewed and explained~ The meetings will be conducted by the EEO Officer. -b. All ne~ su~rviso=y o= ~=sonnel office employees will be 'g~ven a thorough indoctrination by ~he EEO Officer, covering all ma~or ascots of the contractor's EEO'obligations within thirty days following their re~=~ng for duty with the contrac=or. c. All ~rsonnel who are engaged In direct rec=ultment for the p=o~ect be instructed by the EEO Officer ~n the contractor's procedu=es for locating and hiring m~nor~ty group employees. - 2 - d. Notices and posters setting forth the COntractor's EEO policy will be placed in areas readily accessible to employees, applicants for employment and potential employees. e. The contractor,s EEO policy and the procedures to implement such policy will be brought to the attention of employees by means of meetings, employee handbooks, or Other appropriate means. 4. Recruitment: When advertising for employees, the contractor will include in all advertisements for employees the notation: 'An Equal Opportunity Employ- er." All such advertisements will be placed in publicat'i0ns having a large circulation among minority groups in the area from which the project work force would normally be derived. a. The contractor will, unless precluded by a valid bargaining agreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minority group applicants. To meet this requirement, the contractor will identify sources of potential minority group employees, and establish with such identified sources procedures whereby minority group applicants may be referred to the contractor for employment consideration. b. In the event the contractor has a valid bargaining agreement providing for exclusive hiring hall referrals, he is expected to observe the provisions Of that agreement to the extent that the system permits the contractor's compliance with EEO contract provisions. (The DOL has held that where implementation of such agreements have the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Executive Order 11246, as amended.) c. The contractor will encourage his present employees to refer minority group applicants for employment. InfOrmation and procedures with regard to referring minority group applicants will be discussed with employees. 5. Personnel Actions: Wages, working conditions, and employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be'taken without regard to race, color, religion, sex, national origin, age or disability. The following procedures shall be followed: a. The contractor will conduct periodic inspections of project sites to insure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel. b. The contractor will periodically evaluate the spread of wages paid within each classification to determine any evidence of discriminatory wage practices. c. The contractor will periodically review selected personnel actions in depth to determine whether there is evidence of discrimination. Where evidence is found, the contractor will promptly take coTrectiE~ action. If the review indicates that the discrimination may extend b~yond the actions reviewed, such corrective action shall include all affected persons. d. The contractor will promptly invest[gate all complaints of alleged discrimination made to the contractor in connection with his obligations under this contract, will attempt to resolve such complaints, and will take appropriate corrective action within a reasonable time. If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of his avenues of appeal. 6. Training and Promotion: a. The contractor will assist in locating, qualifying, and increasing the skills of minority group and women employees, and applicants for employment. - 3 - b. Consistent with the contractor's work force requl~ementa and as permissible under Federal and State regulations, the contractor shall make full use of training programs, i.e., apprenticeship, and on-the-job training programs for the geographlcal area of contract performance. Where feasible, 25 percent of apprentices or trainees in each occupation shall be in their first year of apprenticeship or training. In ~he event a special provision for training is provided under this contract, this subparagraph will be superseded as indicated in the special provision. c. The contractor will advise employees and applicants for employment of available training programs and entrance requirements for each. d. The contractor will periodically review the training and promotion potential of minority group and women employees and will encourage eligible employees to apply for such training and promotion. 7. Unions~ If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use hie/her best efforts to obtain the cooperation of such unions to increase opportunities for minority groups end women within the unions, and to effect referrals by such unions of minority and female employees. Actions by the contractor either directly or through a contractor's association acting as agent will include the procedures set forth below~ a. The contractor will use best efforts to develop, in cooperation with the unions, joint training programs aimed toward qualifying more minority group members and women for membership in the unions and increasing the skills of minority' group employees and women so that they may qualify for higher paying. employment. b. The contractor will use best efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, national origin, age or disability. c. The contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information ie within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, the contractor Shall so certify to the S~A and shall set forth what efforts have been made to obtain such information. d. In the event the union is unable to provide the .contractor with a .-reasonable flow of minority and women referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, national origin, age or disability; making full efforts to obtain qualified and/orqualifiable minority group persons and women. (The Del has held that it shall be no excuse that the union with .which the contractor has a collective bargaining aoreement providing fo~ exclusive referral failed to refer minority employers.) ~n the e%ent the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the S~A. 8. Selection. of Subcontractors, procurement of Materi&ls end Leasing of Equipment: The contractor shall not discriminate on the grounds of race, color, religion, sex, national origin, age or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. a. The contractor shall notify all potential subcontractors and suppliers of his/her EEO obligations under this contract. b. Disadvantaged business enterprises (DBE), as defined in 49 CFR 23, shall - 4 - have equal opportunity to compete for and perform subcontracts which the contrac- tor enters into pursuant to this contract. The contractor will use hie best efforts to solicit bids from and to utlllze DBE subcontractors or subcontractors with meaningful minority group and female representation among their employees. Contractors shall obtain lists of DSE construction firms from SHA personnel. c. The contractor will use his best efforts to ensure subcontractor compliance with their EEO obligations. 9. Records and Re~orts= The contractor shall keep such records as necessary to document compliance with the EEO requirements. Such rec6rds shall be retained for a period of three years following completion of the contract work and shall be available at reasonable times and places for inspection by authorized representatives of the SHA and the FHWA. a. The records kept by the contractor shall document the following: (1) The number Of minority and non-minority group members and women employed in each work classification on the project; (2) The progress and efforts being made in cooperation with unions, when applicable, to increase employment opportunities for minorities and women; (3) The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minority and female employees; and (4) The progress and efforts being made in securing the services of DBE subcontractors or subcontractors with meaningful minority and female repreaent~- tion among their employees. b. The contractors will submit an annual report to the SHA each July for the duration of the project, indicating the number of minority, women, and non-minor- ity group employees currently engaged in each work classification required by ti~e contract work. This information is to be reported on Form PR-1391. ~f on-the-job training is being required by special provision, the contractor will be required to collect and report training data. III. NONSEGREGATED FACILITIES (Applicable to all Federal-aid construction contracts and to all related subcontracts of $10,000 or more.) a. By submission of this bid, the execution of this contract or subcontract, or the consummation of this material supply agreement or purchase order, as appropriate, the bidder, Federal-aid construction contractor, subcontractor, mater.iai supplier, or vendor, as appropriate, certifies that the firm does not maintain or provide for its employees any segregated facilities at any of its establishments, and that the firm does not permit its employees to perform their services at any location, under its control, .where .segregated facilities are maintained. The firm agrees that a breach of ~his certification is a violation of the EEO provisions of this contract. The firm further certifies that no employee will be denied access to adequate facilities on the basis of sex or disability. b. As used in this certification, the term "segregated facilities" means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, timeclocks, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive, or are, in fact, segregated on the basis of race, color, religion, national origin, age or disability, because of habit, local custom, or otherwise. The only exception will be for the disabled when the demands for accessibility override (e.g. disabled parking). - 5 - c. The contractor agrees that it has obtained or will obtain identical certification from proposed subcontractors or material suppliers prior to award of subcontracts or consummation of material supply agreements of $10,000 or,ore and that it will retain such certifications in its files. IV. PAYMENT OF PREDETERMINED MINIMUM WAGE (Applicable to all Federal-aid construction contracts exceeding $2,000 and to all related subcontracts, except for projects located on roadways classified as local roads or rural minor collectors, which are exempt.) a. All mechanics and laborers employed or working upon the site of the work will be paid unconditionally and not less often than once a week and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations (29 CFR 3) issued by the Secretary of Labor under the Copeland Act (40 U.S.C. 276c) the full amounts of wages and bona fide fringe · benefits (or cash equivalents thereof) due at time of payment. The payment shall be computed at wage rates not less than those contained in the wage determination of the Secretary of Labor (hereinafter "the wage determination") which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor or its subcontractors and such laborers and mechanics. The wage determination (includ- ing any additional classifications and wage rates conformed under paragraph 2 of this Section IV and the DOL ~oster (WH-1321) or Form FHWA-1495) shall be ~osted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. For the purpose of this Section, contributions made or costs reasonably anticipated for bona fide fringe benefits under Section 1(b)(2) of the Davis-Bacon Act (40 U.S.C. 276a) on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of Section IV, paragraph 3b, hereof. Also, for the purpose of this Section, .regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in paragraphs 4 and 5 of this Section IV. b. Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time -actuallyworked therein, provided, that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. c. Ail rulings and interpretations of the Davis-Bacon Act and related acts contained in 29 CFR 1, 3, and 5 are herein incorporated by reference in this contract. ~ -' 2. Classiflcetion~ a. The SHA contracting officer shall require that any class of laborers or mechanics employed under the contract, which is not listed in the wage determination, shall be classified in conformance with the wage determination. b. The contracting officer shall approve an additional classification, wage rate and fringe benefits only when the following criteria have been metz (1) the work to be performed by the additional classification requested is not performed by a classification in the wage determination; (2) the additional classification is utilized in the area by the construction industry; - 6 - (3) the proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination; and (4) with respect to helpers as defined in Section IV.4(c), when such a classification prevails in the area in which the work is performed. c. If the contractor or subcontractors, as appropriate, the laborers and mechanics (if known) to be employed in the additional classification or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting'officer to the DOL, Administrator of the Wage and Hour Division, Emplo~nent Standards Administration, Washington, D.C. 20210. The Wage and Hour Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. d. In the event the contractor or subcontractors, as appropriate, the laborers or mechanics to be employed in the additional classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Wage and Hour Administrator for determination. Said Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary e. The wage rate (including fringe benefits where appropriate) determined pursuant to paragraph 2c or 2d of this Section IV shall be paid to all workers performing work in the additional classification from the first day on which work is performed in the classification. 3. Payment of Fringe Benefits: a. Whenever the minimum wage rat~ prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor or subcontractors, as appropriate, shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly case equivalent thereof. b. If the contractor or subcontractor, as appropriate, does not make payments to a trustee or other third person, he/she may consider as a part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, provided, that the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis~Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. 4. Apprentices and Trainees (Programs of the U.S. DOL) and Helpers: a. Apprentices: (1) Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the DOL, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State apprenticeship agency recognized by the Bureau, or if a person is employed in his/her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State apprenticeship agency (where appropriate) to be eligible for probationary employment as an apprentice. (2) The allowable ratio of apprentices to journeyman-level employees on the job slte in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any employee listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate listed in the wage determination for the classification of work actually performed. In addition, .any apprentice pe~forming work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor or subcontractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman-level hourly rate} specified in the contractor's or subcontractor's registered program shall be observed. (3) Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeyman-level hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator for the Wage and Hour Division determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. (4) In the event the Bureau of Apprenticeship and Training, or a State apprenticeship agency recognized by the Bureau, withdraws approval of an appren- ticeship program, the contractor or subcontractor will no longer be permitted to utilize apprentices at less than the applicable'predetermined rate for the comparable work performed by regular employees until an acceptable program is approved. b. Trainees: (1) Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the DOL, Employment and Training Administration. (2) The ratio of trainees to journeyman-level employees on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall We paid. not less than the applicable wage rate on the wage determination for the classification of work actually per- formed. In addi[lon, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. (3) Every trainee must be paid at not less than the rate specified in the approved program.for his/her level of progress, expressed as a percentage of the journeyman-level hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman,level wage rate on the wage determination which provides for less than full fringe benefits for apprentices, inwhich case such trainees shall receive - 8 - the same fringe benefits as apprentices. (4) In the event the Employment and Training Administration withdraws approval of a training program, the contractor or subcontractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. c. Helpers= ~ary ~cord (2) Helpers will be permitted to work o · classification is specified on an a~li-~ ~ a project if the helper == ~= wage oetermination or is approved pursuant to the confo~ance procedure set forth in Section IV.2. Any worker listed on a payroll at a helper wage rate, who is not a helper as defined a~ve, shall be paid not less than the applicable wage rate on the wage dete~ination for the classification of work actually performed. 5. Apprentices and Trainees (Progr~s of the U.S. ~): Apprentices and trainees working under apprenticeship and skill training ~rogr~s which have been certified by the Secretary of Transportation as promot- ing EEO in connection With Federal-aid highway construction progr~s are not subject to the retirements of paragraph 4 of this Section IV. The straight t~e hourly wage rates for apprentices and trainees under such progr~s will be established by the particular progr~s. The ratio of apprentices and trainees to journe~en shall not be greater than pe~itted by the te~s of the particular progr~. 6. Withholding: The S~ shall upon its own action or u~n written re,est of an authorized representative of the DOL withhold, or cause to be withheld, from the contractor or subcontractor under this contract or any other Federal contract with the s~e prime contractor, or any other Federally-assisted contract subject to Davis-Bacon prevailing wage retirements which is held by the s~e prime contractor, as much of the accrued pa~ents or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full ~ount of wages re~ired by the contract. In the event of failure to pay any laborer"or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages re~ired by the contract, the S~ cOntracting officer may, after written notice to the contractor, take such action as may be necessary to cause the suspension of any further pa~ent, advance, or guarantee of funds until such violations have ceased. 7. Ove~e No contractor or subcontractor contracting for any part of the contract work which may re,ire or involve the emplo~ent of laborers, mechanics, watt,eh, or guards (including apprentices, trainees, and helpers described paragraphs 4 and ~ above} shall re. ire pe~= any laborer, mechanic, watt.an, or ~ard in any workweek in which he/she is employed on such work, to Work in excess of 40 hours in such workweek unless such laborer, mechanic, watt.an, or guard receives compensation at a rate not less than one-and-one-half ~neym~n w.~ ies o d ~ t/~ea /'~' - 9 - times his/her basic rate of pay for all hours worked in excess of 40 hours in such workweek. 8. Violation~ Liability for Unpaid Wages; Liquidated Damages= In the event of any violation of the clause set forth in paragraph 7 above, the contractor and any subcontractor responsible thereof shall be liable to the affected employee for his/her unpaid wages. In addition, such contractor shall be liable to the United States (in the case of work done under contract for the District Of Columbia or a territory, to such District or to such territory) for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer, mechanic, watchman, or guard employed in violation of the clause set forth in paragraph 7, in the sum of $10 for each calendar day on which such employee was required or permitted to work in excess of the standard work week of 40 hours without payment of the overtime wages required by the clause set forth in paragraph 7. 9. Withholding for Unpaid Wages and Liquidated Damages: The SHA shall upon its own action or upon written request of any authorized representative of the DOL withhold, or cause to be withheld, from any monies payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other Federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph 8 above. V. STATEMENTS AND PAYROLLS (Applicable to all Federal-aid construction contracts exceeding $2,000 and to all related subcontracts, except for pro)ects located on roadways classified as local roads or rural collectors, which are exempt.) 1. Compliance with Copeland Regulations (29 CFR The contractor shall comply with the Copeland Regulations of the Secretary of Labor which are herein incorporated by reference. 2. Payrolls and Payroll Records~ a. Payrolls and basic records relating thereto shall be maintained by the ~ontractor and each subcontractor during the course of the work and preserved for a period of 3 years from the date of completion of the contract for all laborers, mechanics, apprentices, trainees, watchmen, helpers, and guards working at the site of the work. b. The payroll records shall contain thW name, ~social security number, and address of each such employee; his or her correct classification; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalent thereof the types described in Section 1{b)(2)(S) of the Davis Bacon Act); daily and weekly number of hours worked; deductions made; and actual wages paid. In addition, for Appalachian contracts, the payroll records sh~ll contain a notation indicating whether the employee does, or does not, normally reside in the labor area as defined in Attachment A, paragraph 1. Whenever the Secretary of Labor, pursuant to Section IV, paragraph 3b, has found that-the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in Section l(b)(2)(B) of the Davis Bacon Act, the contractor and each subcontractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program ia financially possible, that the Plan or program has bean communicated in writing to the laborers or - 10 - mechanics affected, and show the cost anticipated or the actual cost incurred in providing benefits. Contractors or subcontractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprentices and trainees, and ratios and wage rates prescribed in the applicable programs. c. Each Contractor and subcontractor shall furnish, each week in which any contract work is performed, to the SHA resident engineer a payroll of wages paid each of its employees (including apprentices, trainees, and helpers, described in Section IV, paragraphs 4 and 5, and watchmen and guards engaged on work during the preceding weekly payroll period). The payroll submitted sha accurately and completely all of the informs · ...... : ...... 1} set out paragraph 2b of this Section V. This information may be submitted in any form desired. Optional Form WH-347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal stock number 029-005-0014-1), U.S. Government Printing Office, Washington, D.C. 20402. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. d. Each payroll submitted shall be accompanied by a "Statement of Compliance,- signed by the contractor or subcontractor or his/her agen% who pays or supervises the payment of the persons employed under the contract and shall certify the following: (1) that the payroll for the payroll period contains the information required to be maintained under paragraph 2b of this Section V and that such information is correct and complete; (2) that such laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than Permissible deductions as set forth in the Regulations, 29 CFR 3; (3) that each laborer or mechanic has be appll~a~le wage rate and fringe ~-~'= en paid not less that the ~lass~lcatlon of worked Derforme~ -- .~ cash equivalent for the oetermlnatlon lncorporated fnto the~on~ac~pec~z~ed an the applicable wage e. The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the "Statement of Compliance- required by paragraph 2d of this Section V. f- The falsification of any of the above certifications may subject the contractor to civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 231. g. The contractor or subcontractor shall ~ake the records required under paragraph 2b of this Section V available for ins ecti · transcription by authorized representatives of th, ~a ~ ....on, copying, or .... , ~,~e ~A, or the DOL, and shall permit such representatives to interviewemployees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the SHA, the FHWA, the DOL, or all may, after written notice to the contractor, sponsor, applicant, or owner, take such actions as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR 1. On all Federal-aid contracts on the National Highway System, except those which provide solely for the installation of protective devices at railroad grade - 11 - crossings, those which are constructed on a force Account or direct labor basis, highway beautification contracts, and contracts for which the total final construction cost for roadway and bridge is less than $1,000,000 (23 CFR 635) the contractor shall: a. Become familiar wi~h the list of epeclfic materials and supplies contained in Form FHWA-47, 'Statement of Materials and Labor Used by contractor of Highway Construction Involving Federal Funds," prior to the commencement of work under this contract. b. Maintain a record of the total cost of all materials and supplies purchased for and incorporated in the work, and also of the quantities of those specific materials and supplies listed on Form FHWA-47, and in the unite shown on Form FHWA-47. c. Furnish, upon the completion of the contract, to the SHA resldent engineer on Form FHWA-47 together with the data required in paragraph lb relative to materials and supplies, a final labor summary of all contract work indicating the total hours worked and the total amount earned. 2. At the prime contractor's option, either a single report covering all contract work or separate reports for the contractor and for each subcontract shall be submitted. VII. SUmn~TTING OR ASSIGNING THE CONTRACT 1. The contractor shall perform with its own organization contract work amounting to not less than 30 percent (or a greater percentage if e~ecified elsewhere in the contract} of the total.original contract price, excluding any specialty items designated by the State. Specialty items may be performed by subcontract and rhea mount of any such specialty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635). a. "Its own organization" shall be construed to include only workers employed and paid directly by the prime contractor and equipment owned or rented by the prime contractor, with or without operators. Such term does not include employees or equipment of a subcontractor, assignee, or agent of the prime contractor. b. "Specialty Items" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid on the contract as a whole and in general are to be limited to minor components of the ..overall contract. 2. The contract amount upon which the requirements set forth in paragraph of Scction VII is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions. 3. The contractor shall furnish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of th~ work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who performs the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the SHA contracting officer detern~inee is necessary to assure the performance of the contract. 4. No portion ~f the contract shall be sublet, assigned or othe~wiee disposed of except with the written consent of the SHA contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the SHA has assured that each subcontract is - 12 - evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract. VIXI. SAFETY: ACCIDENT PREV~/~TXON 1. In the performance of this contract the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the SMA contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. 2. It is a condition of this contract, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under cond{tions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined · under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333). 3. Pursuant to 29 CFR 1926.3, it is a condition of this contract that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333). IX. F~LSE STATEMENTS CONCERNIN~ HIGhWAy PRO~q~CTS In order to assure high quality and durable construction in conformity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors,, suppliers,.and workers on Federal-aid highway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, the ~ollowing notice shall be posted on each Federal-aid highway project (23 CFR 635) an one or more places where it is readily available to all persons'concerned with the project: NOTICE TO AT.~. PERSONNEL ENGAGED ON FEDERAL~AID HIGHWAY PROJECTS 18 U.S.C. 1020 reads as follows: "Whoever being an officer, agent, or employee o~ the United States, of any State or Territory, or whoever, whether ia person, association, firm, or corporation, knowingly makes any false statement, false representation, or false report as to the character, quality, quantity, or cost of the material used or to be used, or th~ quantity or quality of the work perfoA-med or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or Whoever knowingly makes any false statement, false representation, false report or false claim with respect to the character, quality, quantity, or cost of any work performed er to be performed, or materials furnished or to be furnished, in connection with the construction Of any highway or related project approved by the Secretary of Transportation; or Whoever knowingly makes any false statement or false representation as material fact in any statement, certificate, or report submitted pursuant to to provisions of the Federal-aid Roads Act approved July I, 1916, (39 Stat. 355), - 13 - as amended and supplemented; Shall be fined not more that $I0,000 or imprisoned not more than 5 years or both." X. IMPL~I4~f~ATION OF ~.m~N AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT (Applicable to all Federal-aid construction contracts and to all' related subcontracts of $100,000 or more.) By submission of this bid or the execution of this contract, or subcontract, as appropriate, the bidder, Federal-aid construction contractor, or subcontractor, as appropriate, will be deemed to have stipulated as follows: 1. 'That any facility that is or will be utilized in the performance of this contract, unless such contract is exempt under the Clean Air Act, as amended (42 U.S.C. 1857 e__t seq., as amended by Pub. L. 91-604), and under the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 e__t seq., as amended by Pub. L, 92-500), Executive Order 11738, and regulations in implementation thereof (40 CFR 15) is not lasted, on the date of contract award, on the U.S. Environmental Protection Agency (EPA) List of Violating Facilities pursuant to 40 CFR 15.20. 2. That the firm agrees to comply and remain in compliance with all the requirements of Section 114 of the Clean Air Act and Section 308 of the Federal Water Pollution Control Act and all regulations and guidelines listed thereunder. 3. That 'the firm shall promptly notify the SHA of the receipt of any communication from the Director, Office of Federal Activities, EPA, indicating that a facility that is or will be utilized for the contract is under consideration to be listed on the EPA List of Violating Facilities. 4. That the firm agrees to include or cause to be ihcluded the requirements of paragraph i through 4 of this Section X in every nonexempt subcontract, and further agrees to take such action as the government may direct as a means of enforcing such requirements. XI. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INF~LIGIBILITY AND VOLUNTARY EXCLUSION 1. Instr~¢tlons for certification - Prima~ Covered Transactions: (Applicable to all Federal-aid contracts - 49 CFR 29) a. By signing and submitting this proposal, the prospective primary participant is providing the certification set out below. b. The inabillty of a person to provide the certification set out below will not necessarily result in denial of partlcipa~ion in'this covered transaction. The prospective participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective primary participant to furnish .a certification or an explanation shall disqualify such a person from participation in this transaction. o. The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If it is later determined that the prospective primary participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause of default. d. The prospective primary participant shall provide immediate written - 14 - notice to the department or agency to whom this proposal is submitted if any time the prospective primary participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. e. The terms "COVered - - . . 'lower t?er covered trane rt transactAon,- "principal,. "oro~sal .... ~ ., _ ~ereon, primary COVered this clause, have the meanings set out in the Definitions and Coverage sections = =- , ~.u vo~uncarAly excluded,, as used in of. rules implementing Executive Order 12549. You may contact the department or agency to which this proposal is submitted for assistance in obtaining a copy of those regulations. f. The prOSpective primary participant agrees by submitting this proposal that, should the Proposed covered transaction be entered into, knowingly enter into any lower tier covered transaction with a it shall not person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction. g. The prospective primary participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier COvered Transaction,- provided by the department or agency entering into this COvered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covere~ transactions. h. A participant i~ a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not barred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the cert ' · · may decide the method and ~ .......... %f%catAon As erroneous. A a ' ' f-~=..~ wy wnAcn ~t de~: -- · P rt~cApant principals. Each participant may. -=~,.~nes =ne elzgibility of its nOnprocurementportion of the "Lists ~ but is not required to, check the Parties Excluded From Federal Procurement or Nonprocurement Programs- (Nonprocurement List) which is compiled by the General Services Administration. i. Nothing contained in the fore can establishment of a ...... g g shall be c~--~ ..... . certification re_.i;Jju~ ~.rec~rds An order to rende~"~'~=O ~-quire partlcipant is n~ re~,~e~U~s ciau~e. The knowledge and h th~ prudent ~er--- ' ~ =' u uu excee~ that which :- .. ~-~on ~ o~u An =ne ordinary course ~ =~ · ~ normally pOSsessed b a ~ ~ uusAness dealings. Y J- Except for transactions authorized under paragraph f of these instructions, if a participant in a COVered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Primary Covered Transactions 1. The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: · a. Are not presently debarred, suspended, proposed for debarment, declared · neligible, or voluntarily excluded from Covered transactions by any Federal department or agency; b. Nave not within a 3-year period preceding this proposal been convicted of or had a civil Judgement rendered against them for commission of fraud or a Criminal offense in COnnection with obtaining, attempting to obtain, or - 15 - porforming a public (Federal, State or local) transaction or contract under a public transaction; violation o~ Federal or State antitrust statutes or con~n£as£on of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with co~ml£ssion of any of the offenses enumerated in paragraph lb of this certification; and d. Have not within a 3-year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. 2. Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. 2. Instructions for Certification - Lower Tier Covered Transactions~ (Applicable to all subcontracts, purchase orders and other lower tier transactions of $25,000 or more - 49 CFR 29) a. By signing and submitting this proposal, the prospective lower tier is providing the certification set out below. b. The certification in this clause is a material representation of fact upon which reliance was placed when thistransaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department of agency with which this transaction originated may pursue available remedies, includlng suspension and/or debarment. c. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. d. The terms 'covered transaction,' 'debarred,? -suspended," "ineligible,' 'primary covered transaction," "participant,' 'person,' "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and coverage sections of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. e. The prospective lower tier participant agrees by submitting this proposal' that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible~ or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled -Certification Regarding Debarment, Suspension, Ineligibility andVoluntary Exclusion-Lower Tier Covered Transaction,' without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. g. A participation in a covered transaction may rely upon a certification Of a prospective participant in a lower tier covered transaction that is not de- barred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the - 16 - Nonproourement List. h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. i. Except for transactions authorized under paragraph e of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who ii suspended, debarred, ineligible, or voluntarily excluded from participation ~n this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. Certification Regarding Debarment, Suspension, Ineligibility aud Voluntaz-f Exclusion--Lower Tier C~vered Transactions= 1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded participation in this transaction by any Federal department or agency, from 2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. XII. CERTIFICATION REGARDIN(] USE OF CON~ACT FUNDS FOR LOBBYING (Applicable to all Federal-aid construction contracts and to all related subcontracts which exceed $100,000 - 49 CFR 20) 1. The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. b. If any funds other than Federal appropriated funds have been paid or will be paid to any pe, rson for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying,- in accordance with its instructions. 2. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for makina or enterin imposed by 31 U.S.C. ~ ~__ - . g into this transaction · . 135.. ~-~ person WhO fails to file the required certifacataon shall be subject to a civil penalt of no not more than $100,000 for each such failure. Y t less than $10,000 and - 17 - 3. The prospective participant also agrees by subm£tt£ng his or her bid or proposa~ ~hat he or she 8hall require that the language of th£m cert~f£cation be included in all lower tier subcont=actm, wh£ch exceed $100,000 and that all much reclp£en~s 8hall certify and d£mclome accordingly. - 18 - EXECUTIVE ORDER 11246 NOTICE OF .REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY 1~ The Offeror's or Bidder's attention is called to the "Equal Opportunity Clause" and the "Standard Federal Equal Employment Opportunity ConstructiOn Contrzct Specifications set forth herein. 2. The goals and timetables for minority and female participation, expressed in percentage terms for the Contractor's aggregate workforce in each trade on all construction work in the covere~ area, are' as follows: Time.tables *Goals for minority participation in each trade *Goals for female participation in each trade SEE ATTACHED SEE ATTACHED APPENDIX B, C OR D APPENDIX A The.'hours of minority and female employment is to be reported monthly, by the contractor, on Standard Form 257 (to be supplied by the Pennsylvania Department of Transportation) and expressed in percentage terms of the Contractor's aggre- gate workhours for each trade (craft). These goals are applicable to all the Contractor's construction work (whether or not it is Federal or federally assisted) performed in the covered area. If the contrac~or'perfor~s construction work in a geographical area located outside 'of the covered area, it .shall apply the goals established for such geographical area where the work is.actually performed. With regard to this second area, the contractor also is subject to the goals for both its federally involved and non-federally in- volved construction. The Contractor's compliance with the Executive Order and the regulations in 41 CFR Part 60-4 shall be based on its implementation of the Equal.Opportunity · Clause, Specific affirmative action obligations required by the specifications set' forth in 41 CFR 60-4.3(a), and its efforts to meet the goals. The hours of minority and female employment and training must be ·substantially uniform throughout the length of ~he contract, and in each trade, and the contractor shall make a good faith effort to e~ploy minorities and women evenly on each of its projects.. The transfer of .minority or female employes or trainees from Contractor to Contractor or from ' p~oject to project fo~ the sole.purpose of meeting the Contractor's goals shall be .a violation, of the contract,.the Executive Order and the regulations in 41 CFR Part 60-4, Compliance with the goals will be measured against the total work hours performed. 3.'.~he Contractor shall provide written notification to the Pennsylvania. Department of Transportation. within 10 working days of award of any construction subcontrac~ ih excess of $10,000 at any tier for construction work under-the contract resulting from this solicitation. The notification shaI1 list the name, address and telephone n,,m~er of the subcontractor; employer identification number of the subcon- · tractor;.estimated dollar amount of the subcontract; estimated starting -and compl6tion dates of the subcontract~ ~nd the geographical area in which the subcontract is to be · performed. · 4. As used in this Notice, and in the contract resulting from this solicita- tion, the "covered area" is indicated in the special provision entitled "E.E.O. Covered Area". Goals for females are listed in Appendix A, and for minorities includes the areas listed in Appendix B, C or D. STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION CONTRACT SPECIFICATIONS (EXECUTIVE ORDER 11246) 1. As used in these specifications: a. "Covered area" means the geographical area described in the solicitation from which this contract resulted; b. "Director" means Director, Office of Federal Contract Compliance Programs, United States Department of Labor, or any person to whom the Director delegates authority; c. "Employer identification number" means the Federal Social Security number used on the Employer's Quarterly Federal Tax Return, U.S. Trea- sury Department Form 941; and d. "Minority " includes: (1) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin); (2) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish Culture or origin, regardless of race); (3) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and · - (4) American Indian or Alaskan Native (all persons having origins in any of the original peoples of North America and maintaining identifiabletribal affiliations through membership and partici- pation or co--,unity identification). 2. Whenever the contractor, or any subcontractor at any tier, subcontracts a portion of the work involving any construction trade, it shall physically include in each subcontract in excess of $10,000 the provisions of these specifications and the Notice which contains the applicable goals for minority and female participation and which is set forth in the solicitation from which this contract resulted. 3. If the contractor is participating (pursuant to 41 CFR 60-4.5) in a Hometown Plan approved by the U~'S. Department of Labor in the covered area either individ~ally or through an association, its affirmative action obligations on all work in the Plan area (including goals and timetables) shall be in accordance with that Plan for those trades which have unions participating in the Plan. Contractors must be able to dum- onstrate their participation in and compliance with the provisions of any such Home- town Plan. Each Contractor or Subcontractor participating in an approved Plan is individually required to comply with i~s obligations under the EEOclause, and to ~ake a good faith effort to achieve each goal under the Plan in each' trade in which it has employes. The overall good faith performance by other Contractors or Sub- contractors toward a goal in an approved Plan does not excuse any covered Contractor's or Subcontractor's failure to take good faith efforts to achieve the Plan goals and timetables. 4. The Contractor shall implement the specific affirmative action standards provided in paragraphs 7a through p of these specifications. The goals set forth in the solicitation from which this contract resulted are expressed as percentages of the total hours of employment and training of minority and f~male utilization the Contractor should reasonably be able to achieve in each construction trade in which it has employes in the covered area. Covered construction Contractors performing construction work in geographical areas where they do not have a Federal or Federally assisted construction contract shall apply the minority and female goals established for the geographical area where the work is being performed. Goals are published periodically in the Federal Register in notice form, and such notices may be obtained from any Office of Federal Contract Compliance Programs office or from Federal procure- ment contra~ting officers~ The Contractor is expected to make substantially uniform progress toward its goals in each craft during the period specified. 5. Neither the provisions of any collective bargaining agreement, nor the fail- ures by a union with whom the Contractor has a collective bargaining agreemenC~ to refer either minorities or women shall excuse the Constructor's obligations under · these specifications, Executive Order 11246, or the regulations promulgated pursuant thereto. 6. In order for the nonworking training hours of apprentices and trainees to be counted in meeting the goals, such apprentices and trainees must be employed by the Contractor during the training period, and the Contractor must have made a commitment · to employ the apprentices and trainees ak the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training program~ approved by the U.S. Department of Labor. 7. The Contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the Contractor's compliance with these specifications shall be based upon its efforts to achieve maximum results from its actions. The Contractor shall document these efforts fully, and shall implement affirmative action steps at least as extensive as the following: a. Ensure and maintain a working environment free of harassment, intimidation, and coercion of all sites, and in all facilities at which the Contractor's employes are assigned to work. The Contractor, where possible, will assign two or more women to each construction project. The Contractor shall specifically ensure that all foremen, superintendents, and other on-site supervisory personnel are aware of and carry'out the Contractor's obligation to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities. b. Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the.Contractor or its unions have employment oppor- tunities available and maintain a record of the organizations' responses. c. Maintain a current file of the names, addresses, and telephone numbers of each minority and female off-the-street applicant and minority or female referral from a union, a recruitment source or comunity organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the Contractor by the union or, if referred, not employed by the Contractor, this shall be documented in the file with the reason therefor, along with whatever additi6nal actions the Contractor may have taken. d. Provide immediate written notification to the Pennsylvania Department of Transportation when the union or unions with which the Contractor has a collective bargaining agreement has not referred to the Contractor a minority person or woma~ sent by the Contractor, or when the Contractor has other information that the union referral process has impeded the Contractor's efforts to meet its obligations. e. Develop on-the-job training opportunities and/or participate in training programs for the area which expressly includemlnorities and women, including up- grading programs and apprenticeship and trainee programs relevant to the Contractor's employment needs, especially those programs funded or approved by the Department of Labor. The COntractor shall provide notice of these programs to the sources compiled under 7b above. f. Disseminate the Contractor's EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the Con- tractor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, annual report, etc; by specific review of the policy with all management personnel and with all minority and female employes at least once a year; and by posting the company EEO policy on bulletin boards accessible to all employes at each location where construction work is performed. g. Review, at least annually, the company's EEO policy and affirmative action obligations under these specifications with all employes having any responsibility for hiring, assignment, layoff, termination or other employment decisions including specific review of these items with on-site supervisory personnel such as Superin- dentents~ General Foreman, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter. ~. Disseminate the Contractor's EEO policy externally by including it in any advertising in the news media, specifically including minority and female news media, and providing written notification to and discussing the Contractor's EEO policy with other Contractors and Subcontractors with whom the Contractor does or anticipates doing business. i. Direct its recruitment efforts, both oral and written, to minority, female and community organizations, to schools with minority and female students and to minority and female recruitment and training organizations serving the Contractor's recruitment area and employment needs. Not later than one month prior to the date for the acceptance of 'applications for apprenticeship or other training by any recruitment source, the~Contractor shall send written notification to organizations such as the above, describing the openings, screening procedures, and tests to be used in the selection process. J. Encourage present minority and female employes to recruit other minority persons and women and, where reasonable, provide after school, s-mmer and vacation employment to minority and female youth both on the site and in other areas of a Contractor's workforce. k. Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR Part 60-3. 1. Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel for promotional opportunities and encourage these employes to seek or to prepare for, through appropriate training, etc; such opportunities. m. Ensure that seniority practices, job classifications, work assignments and other personnel practices, do not have a discriminatory effect by continually moni- toring all personnel and employment related activities to en~ure that the EEO policy and the Contractor's obligations under these specifications are being carried out. n. Ensure that all facilities and company activities are nonsegregated except that separate or single-user toilet and necessary changing facilities shall be provided to assure privacy between the sexe~ / o. Document and maintain a record o~ all solicitations of offers for subcon- tracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority/and female contractor associations and other business associations. / - p. Conduct a review, at least annually of all supervisors' adherence to and performance under the Contractor's EEO policies and affirmative action obligations. 8. Contractors are encouraged to participate in voluntary associations which assist in fulfilling one or more of their affirmative action obligations (7a through' p). The efforts of a contractor association, joint, contractor-union, contractor- community, or other similiar group of which the contractor is a member and partici- pant, may be asserted as fulfilling any one or more of its obligations under 7a through p or these SpecificatiOns provided that the contractor actively participates in the group, make every effort to assure that the group has a positive impact on the employment of minorities and women in the Industry, ensures that the concrete benefits of the program are reflected in the Contractor's minority and female work- force and can provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the Contractor. The obligation to comply, however, is the Contractor's and failure of such a group to fulfill an obligation shall not be a defense for the Contractor's noncompliance. 9. A single goal for minorities and a separate single goal for women have been established. The Contractor, however, is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and non-minority. Consequently, the Contractor may be in violation of ehe Executive Order if a particular group is employed in a substantially disparate manner (for example, even though the Contractor has achieved its goals for women generally, the Contractor may be in violation of the Executive Order if a specific minority group of women is underutilized). 10. The Contractor shall not use the goals and timetables or affirmative action standards to discriminate against any person because of race, color, religion, sex or national origin. 11. The Contractor shall not enter into any Subcontract with any person or firm debarred from Government contracts pursuant to Executive Order 11246. 12. The Contractor shall carry out such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension, termination and cancellation of existing subcontracts as may be imposed or ordered .pursuant to Executive Order 11246, as amended, and its implementing regulations, by the Office of Federal Contract Compliance Programs. Any Contractor who fails to carry out such sanctions and penalties shall be in violation of these specifications and Executive Order 11246, as amended. 13. The Contractor, in fulfilling its obligations under these specifications, shall implement specific affirmative action steps, at least as extensive as those standards prescribed in paragraph 7 of these specifications, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If the Contractor fails to comply with the requirements of the Executive Order, regulations, or these specifications, the Pennsylvania Department of Transportation shall proceed in accor- dance with 41 OFR 60-4.8. 14. The Contractor shall designate a responsible official to monitor all employ- ment related activity to ensure that the company EEO policy is being carried out to submit reports relating to the provisions hereof as may be required by the Govern- ment and to keep records. Records shall at least include for each employe the name, address, telephone numbers, construction trade,, union affiliation if any, employe identification number when a~i~d, social seourity number, race, sex, status (e.g., mechanic, apprentice, trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in an easily underscandable and retrievable form; however, to the degree that existing records satisfy this require- ment, Contractors shall not be required to maintain separate records. 15. Nothing herein provided shall be construed a~ a limitation upon the appli- cation of other laws which establish different standards of compliance or upon the application of requirements for the hiring of local or other area resident (e.g., those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program). Exhibit B 0 EASTERN INDUSTRIES, INC. 4401 CAMP MEETING ROAD · SUITE 200 · CENTER VALLEY, PA 18034-9454 IVER RESPONSIBLE, WINFIELD QUARRY (570>522-7156 WHICH RELEASES EASTERN INDUSTRIES FROM WEIGHT vIOLATIONS DTO: ANGELO IAFRATE CONST.' CO CUST. NO. JOB NO. T.: P.O. NO. : Accum,.tlat ed DATE 19.31 (Metric) Tonnes = 21.28 Tons TRUCK ~NT PROD. DESCRIPTION Trips = 1' GROSS 1 i 200 A~RSHTO #8 (lB) r : TARE' ~yHE ' ' WEIGHT CHECKER PRICE tE'F~/ ~<~ HAUL TAX ~l~9.3~d~etric) Tonnes = 21.~8 Tons TOTAL TIME 07': 21~i 32 ~ ID~' 29287 70940 28380 ~28 TN) EASTERN INDUSTRIES, INC. 4401 CAMP MEETING ROAD · SUITE 200 · CENTER VALLEY, PA 18034-9454 WINFIELD.. QUARRY <570) 522-7156 RIVER RESPONSIBLE, WHICH'~RELEASES EASTERN LD TO: ANGEt_O IAFRATE CONST.~ CO CUST. NO. JOB NO. ST.: .. : , ~ P.O.'NO. AccumLtlat ed DATE 39.41 (Metric) Tonnes =. 43.44 Tens TRUCK J~NT PROD, DESCRIPTION INDUSTRIES FROM WEIGHT VIOLATIONS: ,TIME 1~.~9.09 Trips = 2. GROSS 72700 "~ :' :11 2~ ~ASHTO 08 (l-B) ' ........ ,,, ?.,,. ,; ........... ,,.TARE ..... 28~80=_ .r',o.. !IGHEm~' ' // 'WEIGHT ...... ' ' ....... NET~,..~~ 16 TN> r: - ~ BY~~ CHEOKER.~ PRICE '" : ~' IVER~ ~ ~ ~ _ ~/ ~/ HAUL ~ ~NATUR~~/~'TH ~ ~ /~ TAX ~ ~. ~e~P~c) Tonnes = ~. [6 Tons TOTAL ~ EASTERN INDUSTRIES, INC. 4401 CAMP MEETING ROAD ° SUITE 200 · CENTER VALLEY, PA 18034-9454 WINFIELD QUARRY (570) 522-7 i56 DRIVER RESPONSIBLE, WHICH~RELEASES EASTERN SOLDTO: C~ ....... ~ ........ UP. ~, : DEST.: ....., Acoumulat ed 123.07.~. (Metric)Tonnes = 135.66 Tons PLANT PROD. DESCRIPTION Trips = 6 BY - CHECKER __ . DRIVER TR ~ ~ INDUSTRIES FROM WEIGHT VIOLATIONS. P.O.,NO, DATE ~~FIME 14:23:49 mi TRUCK TARE . NET ~ 83 TN) PRICE ~l~l ?~ HAUL TAX 0 0 0 ~0 O~ ~30:~ 0~ HOq mO © Omo~ 0 0 0 000000000000000000000000000000000000000000000000000000000~ 000000000000000000000000000000000000000000000000000000000 000000000000000000000000000000000000000000000000000000000 000000000000000000000000000000000000000000000000000000000 00000000000000000000000000000000000000000000000000~-- EASTERN INDUSTRIES, INC. 4401 CAMP MEETING ROAD'SUITE200°CENTER VALLEY, PA18034-9454 LIVERPOOL QUARRY (7i7)444-2140 DRIVER RESPONSIBLE, WHICH RELEASES EASTERN INDUSTRIES FROM WEIGHT )LDTO: ANSELO I'AFRATE CONST' CO ': '! CMS089059 SR ll&lS" ~ST.: Accumulated 113.44 (Metric) Tonnes = 125.05 Tons 'LANT PROD. DESCRIPTION Trips = 6 216 500 2A STONE WEIGHT CHECKER TR # GUST. NO. JOB NO. P.O. NO. DATE TRUCK GROSS TARE NET PRICE HAUL TAX TOTAL 29200 ~83 TN) VIOLATI0,NS,·,, , , TIME 07:12:45~, ID# 29292~ EASTERN INOUSTRIES, INC. 4401 CAMP MEETING ROAD ° SUITE 200 · CENTER VALLEY. PA 18034-9454 ~ '~_~ LIVERPOOL QUARRY A (717) 444-2140 DRIVER RESPONSIBLE, WHICH' RELEASES EASTERN INDUSTRIES FROM WEISHT VIOLATIONS ' ~OLDTO: ANGELO IAFRATE CONST. CO GUST. NO. JOB NO. )EST.: CMSO89059 SR 11&15 P.O. NO. Accumulated DATE .TIME- 10 t.3i/: 35 1139.44,..(Metric)-,F[onnes..'=,1256-Ol Tons - TRUCK PLANT PROD. DESCRIPTION Trips = 59 GROSS 69920 216 500 2A STONE --,. ~ TARE 29040, PO NET NEIGHEC~~'~' /' ~.~ ~ ~. WEIGHT __.44 BY //1_/~ ~.~_?~.~-' CHECKER' PRICE ~~)~__ ~?~;/ HAUL "~ DRIVERS . , · ' ' CO · TAX 18,54 (Metric) 'Tonnes =:20.44 Tons TOTAL EASTERN INOUSTRIES INC. .., 4401 CAMP~MEETING ROAD 'SUITE 200 · CENTER VALLEY, PA 18034-9454 . .! ' ' LIVERPOOL ~UARRY : (717) 444-2140 DRIVER RESPONSIBLE, W~ICH~RELEASES EASTERN INDUSTRIES FROM~WEISHT VIOLAIIONS ~OLD TO: ANSELO IAFRATE .CONST;' CO GUST. NO. ~ JOB NO. )EST.: CMS08~059 SR l l&15 P.O. NO. A~cumulat ed DATE 19.88..(Metric) F[onnes =.21.91 Tons TRUCK P~NT PROD. DESCRIPTION Trips = I GROSS ~16 100 AASHTO ~le-.(~l) TARE BY - =~ ~ - .' ' HECKER_ PRICE 3RIVERS ~ ~ ~ ,~~ HAUL BIGNA~R' ~ ....... _ ~~ TAX 'TINE.. 16:38:10 m~i, ID#,. ~9~77..;,,..'~ ~3 72640 ~ - 288~0. r~o: ~ 91 TN) .-~J O 0 0 0 0 ~0 oo 0 8686-1.6~,- (01,~) x~.~ 009~1.6~ (01.9) 9686-1,6S:(01-9) x'~t 0090'~6/: (0'-9) ~696-1-6~:(01.9) x'a::l 0090-L6¢ (01-9) mde3uoOiupcl $EP-17-2002 ?UE 02~I9 PM EII & SLO F~× NO, 6108671886 P, 01/02 g 0 0 Ln I VIMOOS-OEI 9~9~I ] ,, -, (]N¥$O3H$¥~A 0~.60 I'/t 0 0 ]V~O£ XVZ ]NVH liN 8SO~9 NON~Z 'ON'O'a 'ON ~0~ lsno 03 %LSN03 3.L~4~1 033~NU :0/(]]~ SNOI J.b']O i 6 ~S~6-~80eL Vd 'AB]]¥A WBiNaO . 00~ 3£1ns . aVOa 9NII3:3~ dior0 ~0~ 'ONI ~SalI~ZSnClNI NUaZSVa -IVJ.OJ. ]NVH . -~ S90~9 ~t/VO 'ON 'O'a 'ON iON 'i8~0 ,Z~:, u .~'-,.,:::.~ ~ ~,Z. :, ) '~INI 'S]II::I.LSnONI 0 0 I ~ o ~ ZOO o 0~ o o o o AdO0 301~::10 0 0 0 0 0 0 ~ : :lOIEJcl ~ ' (N/ ~6~' I=IN '. 00 ~'~';E! E]I~¥.L, ',~ ' 09E~L9 SSOI~IE) i0'" . 0 T 06 #C~j~O__I NOA~.L · '~ ?~:9o ~~0 ~J. va ~~1~ 'ON 'O'd .i ' "' ' i~i~~.L ~ON 'isno 03 ·/SN03 B/~ 4~I O~SN~ :OIQ]OS 'ONI 'SEIlI:IJ. SnONI CO ,' ~vJ. Oi CZ); XVI CZ) " .' 301Ual CO' ,;' (NJ. ~ liN ~ 0~9~ SS0"9 :i ~ 'ON '0'~ :~ · ~0~ 'ON gOP suoi T9"0~ = seuu~i · uoi ~'o~ = s~'uuo~ (~ pe ~eTnmnoo~ I~OSBQ 'OOUd INV-Id T T ~S :'lS~Q 03 ~iSN03 B&Ua~UI OqBgNU :OiO90S 'ONI 'S=H I:I.LSnON i suol 0,'~ = sauuo£ (oT.l~aW) +;I'6I 'ON 80r ' SNOII~']OI ~ 0 ::l.Lya JJ~o;~ 'ON ,'O'd ' ,' :'ISB ~ 'ONSOI' TI 1~' ~J~ON'iSno '" 03 "iSNO3 3i~a~l On3BN~ :oiaqc /HSI3~ ~0~4 'sBIa/SnoNI N~/S~ s~S~B']~ 'HD~HM' ~']SISNOdS~a ^aa~nD ~f~6d~sogl. Vd 'A~]qVA i~BJ. N30 · 00~ ~±lns ·avou DNIJ_q~PI dJN¥O $0H, "Pl[~J[l fc:t':l[IH I _ctnf"l&ll 1~1]-4'~1 I _ctx-fq EII& SLC FaN NO, 6108671886 P, 01/02 ~EP-20-2002 FRI 02:01 PM $EP-20-2002 FRI 02:01 PM EII& SLO F,~X NO, 6108671886 .6.?, ,'~.~, %? ~)~ (~,.,~,~_~ 511161 2005 I,P, ~ BINOER P, 02/02 aOUel~8 ~nQ lS~d o£ peppy ~uo~N ~d Jo e§~eqo eoFuaS '$~C] OB lan 99'£LL'8£ $ S~a&l Pa~3~J*uo3 lOaUUad leto1 1l'080'8~ .66'80& $ : ~6'~ $ A~ 6~'6£[ ~000-6666 ~£0-0~0 0G0680 ~ 800 uoj%oe$ '[[00 '~'$ selsuno3 JepAu$ ~ e$aiunp ,Ajje8 $3gJ~Uo3qn$ ~OOUUe~ EO/6[/~O :a~VO /,ZI, O-6~Z.I. Vd 'Ple!iU!~A O~OL[ Vd 'DJnqs31ugqoeH 9 e~!n8 'pmo~ eJoqses~8 ~L[9 ANVdNO3 NOIIORB±SNOO ~lYUaVl O930N¥ :01 O,Z8-:i ZOO/ZOO'd 98(~-1 666,Zt'ZSOlS Z/.I. xoa 'O'cJ 'ONI '~;:llNYd~O0 lJ~9~.).$ ,;;10 NOI$1AI(] ~IOIOANI ':31'JI 'SqI~ISII~MI N~lSV~-~OaJ ffV6[:60 ZOOZ-~l-dg$ Exhibit C Eastern Indusb'ies, Inc. A Division of Stabler Companies Inc. One Source · All Services 4401 Comp Meeting Road ° Suite 200 Center Valley, PA 18034 (610) 866-0932 · Fax (610) 867-1886 wv~v. eastern-ind.com March 8, 2002 National Fire Insurance Company of Hartford Attention: Bond Claims Department CNA Plaza 31S Chicago, IL 60685 Certified Mail 7000 0600 0028 5533 7341 Gentlemen: This letter is to notify your company that Eastern Industries, Inc. is demanding payment against Payment Bond #190764327 issued to Angelo Iafrate Construction Company of Mechanicsburg, PA. The amount owed to Eastern Industries is $7,536.65. (See invoices and delivery tickets enclosed.) The project was for Perry County SR-11 Section 008. CMS #089050. We are also notifying Iafrate Construction Company and PennDOT by mail of our intent. Please do not hesitate to call me to discuss this situation. Very truly yours, Joel Polsky Credit Manager JP/jw c: Angelo Iafrate Construction Company Certified Mall 7000 0600 0028 5533 7334 Attention: Mathew Milliet-Project Manager 6375 Baseshore Road, Suite 6, Meehanicsburg, PA 17050 Pennsylvania Department of Transportation, Disttict 8-0 Certified Mai17000 0600 0028 5533 7327 Attention: Barry Hoffman, District Engineer 2140 Herr Street, Harrisburg, PA 17130-1699 construction materials * construction services · building supplies Eastern Industries, Inc. A Division of Stabler Companies Inc. One Source · All Services 4401 Camp Meeting Road · Suite 200 Center Valley, PA 18034 [610) 866-0932 · Fax (610) 867-1886 www.eastern-ind.com April 17, 2002 National Fire Insurance Company of Hartford Certified Mail 7000 0600 0028 5533 7280 Attention: Tom Mosea, Bond Claims Department CNA Plaza 31S Chicago, IL 60685 Dear Mr. Moses: This letter is to notify your company that Eastern Industries, Inc. is demanding payment against Payment Bond//190764327 issued to Angelo Iafrate Construction Company of Mechanicsburg, PA. The amount owed to Eastern Industries is $38,713.68. (See invoices enclosed.) The project was for Perry County SR- l 1 Section 008. CMS//089050. This is the second part of our claim. We are also notifying Iafrate Construction Company and PennDOT by mail of our intent. Please do not hesitate to call me to discuss this situation. Credit Manager JP/jw Enclosurc$ c: Angelo Iafrate Construction Company Certified Mail 7000 0600 0028 5533 7266 Attention: Mathew Milliet-Project Manager 6375 Baseshore Road, Suite 6, Meohaniesburg, PA 17050 Pennsylvania Deparhnent of Transportation, District 8-0 Certified Mai17000 0600 0028 5533 7259 Attention: Barry I-Ioffman, District Engineer 2140 Herr Street, Harrisburg, PA 17130-1699 construction materials · construction services · building supplies SHERIFF'S RETURN - REGULAR CASE NO: 2002-04757 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND EASTERN INDUSTRIES INC VS ANGELO IAFRATE CONST CO ET AL DAWN KELL Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ANGELO IAFRATE CONSTRUCTION COMPANY the DEPENDANT at 1612:00 HOURS, on the at 6375 BASESHORE ROAD SUITE 6 9th day of October 2002 MECHANICSBURG, PA 17050 by handing to LAVIER SHOENL~KER PROJECT MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff,s Costs: Docketing 18.00 Service 6.90 Affidavit .00 Surcharge 10.00 .00 34.90 Sworn and Subscribed to before me this &-~ day of ~[ 0 ~ ~ A.D. ~rothonotary ~ R. Thomas Kline ~0/21/2002 FITZPATRICK LENTZ BUBBA Deputy She~if f SHERIFF'S RETURN - U.S. CASE NO: 2002-04757 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND EASTERN INDUSTRIES INC VS. A-NGELO IAFRATE CONST CO ET AL CERTIFIED MAIL R. Thomas Kline Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT ,NATIONAL FIRE INSURANCE COMPANY OF HARTFORD by United States Certified Mail postage prepaid, on the 9th day of October ,2002 at 0000:00 HOURS, at CNA PLAZ SURETY CLAIM-13 SOUTH 333 SOUTH WABASH AVE CHICAGO, IL 60685 and attested copy of the attached COMPLAINT & NOTICE with a true Together receipt card was signed by CHARLEI WATSON 10/14/2002 Additional Comments: The returned on Sheriff's Costs: Docketing 6.00 Cert Mail 9.07 Affidavit .00 Surcharge 10.00 .00 25.07 Paid by FITZPATRICK LENTZ BUBBA Sworn and subscribed to before me this ~ day of~g~_~ ~0~2~ A.n. Pr6t~ono[ary on 10/21/2002 · Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mailpiece, .._._or on the front if space permits. 1. Article Addressed to: National Fire Insurance Company of Hartford CNA Plaza Surety Claims 13 South 333 South Wabash Avenue Chicago, IL 60685 7001 2510 0009 1017 PS Form 381 ~, August 2001 A. Signature x D. Is delivery address different from item If YES, enter delivery address below: 3. Service Type ~ Certified Mail [] Express Mail [] Registered [] Return Receipt f r-i Insured Mail [] C.O.D. 4. Restricted Delivery? (Extra Fee) 8510 Domestic Return Receipt 02-4757 civ EASTERN INDUSTRIES, INC., Plaintiff ANGELO IAFRATE CONSTRUCTION CO. and NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, Defendants In the Court of Common Pleas of Ctm~berland County, Pennsylvania Civil Action - Law No. 02-4757 ANGELO IAFRATE CONSTRUCTION COMPANY'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Defendant Angelo Iafrate Construction Company ("Iafrate") by and through its counsel, Duane Morris LLP and pursuant to Rule 1028 of the Pennsylvania Rules of Civil Procedure respectfully files its Preliminary Objections to Plaintiff's Complaint, and in support thereof states the following: 1. On or about September 30, 2002, Plaintiff Eastern Industries, Inc. ("Eastern") initiated this action by Complaint in the Court of Common Pleas of Cumberland County against Iafrate and Co-Defendant National Fire Insurance Company of Hartford. 2. This action concerns a dispute between Eastern and Iafrate arising out of a Subcontract Agreement entered into between the parties on March 2, 1999, with regard to the construction project denoted as "Perry County SR 11 Sec. 008." 3. Specifically, Eastem's Complaint contains several causes of action, including a claim against a payment bond, violation of the Contractor and Subcontractor Payment Act pursuant to 73 P.S. § 500, et seq., and a claim alleging breach of the aforementioned Subcontract Agreement. 4. Eastern's Complaint also seeks the recovery of $.46,115.97, together with applicable pre-and post-judgment interest and cost of suit, all of which arise out of the Subcontract Agreement and concern the dispute between the pa~rties stemming from the same. I. PRELIMINARY OBJECTION - AGREEMENT FOR ALTERNATIVE DISPUTE in full. RESOLUTION 5. Paragraphs 1 through 4 above are incorporated herein by reference as if set forth 6. Pursuant to Pennsylvania Rule of Civil Procedure 1028 (a) (6), Iafrate files this Preliminary Objection to Eastem's Complaint as a result of the iparties prior agreement for alternative dispute resolution. 7. Article 11 of the Subcontract Agreement provides that, "if a dispute arises out of or relates to this Agreement or its breach, the parties shall endeavor to settle the dispute first through direct discussions. If the dispute cannot be resolved through direct discussions, the parties shall participate in mediation under the Construction Industry Mediation Rules of the American Arbitration Association before recourse to any other form of binding dispute resolution ..... Engaging in mediation is a condition precedent to any other form of binding dispute resolution." See Exhibit A to Plaintiff's Complaint, Subcontract Agreement - 11.1, p. 24. (Emphasis Added) 8. As of the filing of Eastem's Complaint, the parties had not requested nor taken part in any mediation program, nor has Eastern ever made a formal or informal request for the same. Eastern has failed to satisfy the above referenced, condition precedent whereby it has failed to submit this claim to mediation prior to filing of the within lawsuit. 10. Eastem's Complaint must be dismissed inasmuch as there is an existing prior agreement for alternative dispute resolution which has not been satisfied. WHEREFORE, Defendant, Angelo Iafrate Construction Company, respectfully requests this Honorable Court to sustain its Preliminary Objection and dismiss Eastern Industries, Inc.'s Complaint in full. Date: Respectfully submitted, Attorney I.D. No. 22002 Thomas L. Isenberg, Jr. Attorney I.D. No. 76652 DUANE MORRIS LLP 305 N. Front Street, 5th Fl. P. O. Box 1.003 Harrisburg, PA 17108-1003 (717) 237-5500 Attorneys fbr Defendant Angelo Iafi'ate Construction Company HBG\107770.1 3 CERTIFICATE OF SERVICE And now, this ~. ay of ~ ~ 200~ I, Barbara L. Swider, a secretary with the law firm of Duane Morris, LLP, do hereby certify that I have served a true and correct copy of the foregoing document on the person(s) listed below at their respective addresses, via first-class mail, postage prepaid. Joseph S. D'Amico, Jr., Esq. Fitzpatrick Lentz & Bubba, P.C. 4001 Schoolhouse Lane P.O. Box 219 Center Valley, PA 18034-0219 Attorneys for Plaintiff National Fire Insurance Company of Hartford CNA Plaza Surety Claims 13 South 333 South Wabash Avenue Chicago, IL 60685 Co-Defendant Barbara L. Swider IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW 'EASTERN INDUSTRIES, INC., Plaintiff Vo ANGELO IAFRATE CONSTRUCTION CO. ' and NATIONAL FIRE INSURANCE COMPANY ' OF HARTFORD . Defendants No.: 02-4757 EASTERN INDUSTRIES INC.'S RESPONSE IN OPPOSITION TO PRELIMINARY OBJECTIONS BY ANGELO IAFRATE CONSTRUCTION CO. Plaintiff, Eastern Industries, Inc., ("Eastern") by and through its counsel, Fitzpatrick Lentz & Bubba. P.C., files a Response in Opposition to Angelo Iafrate Construction Co.'s ("Iafrate") Preliminary Objections as follows: 1. Admitted. In further response, the suit involves a claim not only against Iafrate as contractor, but its surety, National Fire Insurance Company of '.Hartford ("National Fire")· Further, the suit was filed, in part, pursuant to a bond obtained by Iafrate and issued by National Fire following proper notice pursuant to 8 P.S. § 194 and prior to the expiration of the one year statute of limitations applicable to a bond provided under 42 Pa. C. S.A. § 5523. 2. Denied as stated. The averments of Paragraph 2 refer to the Complaint which accurately sets forth the nature of the dispute and sums due Eastern by Iafrate and its surety National Fire. 3. Admitted. In further response, the suit also includes a claim under the bond within the time provided under Pennsylvania law. 4. Denied as stated. Eastern seeks the recovery of $46,11:5.97 together with all interest, fees and penalties lawfully due under law, including those fees and penalties allowed under the Contractor and Subcontractor Payment Act; 73 P.S. § 500 et. seq.. 5. Eastern incorporates by reference Paragraphs 1 through 4 of its Response as if fully set forth herein. 6. Admitted in part. Denied in part. Eastern admits Iafrate's stated basis for filing the Objections is the cited alternative dispute resolution clause. Easl:ern denies the alternative dispute resolution clause referred to by Iafrate is applicable Or enforceable in the instant suit for the reasons more fully set forth below. 7. Denied as stated. The averments of Paragraph 7 refer to a writing which document must be read as a whole. Further, the dispute resolution procedure outlined by Iafrate does not encompass binding dispute resolution; thus, it is of no force and effect. Further, pursuant to the clear terms of the contract at issue, more specifically, § 11.3, "(n)othing in this Article (11) shall limit any rights or remedies not expressly waived by the Subcontractor or which the Subcontractor may have under lien laws or payment bonds." (parenthetical added.) The instant suit includes a claim against the payment bond which, under pennsylvania law, must be instituted within specific and limited time periods. Thus, pursuant to the clear dictates of the Agreement, the dispute resolution clause is inapplicable as it would otherwise hm~t Eastern s fights as a subcontractor to act against the payment bond which claim has been timely asserted, in this action. 8. Denied as stated. Eastern denies that it has made no attempts to mediate the dispute between the parties. On the contrary, there were numerous exchanges of information concerning the basis of Eastern,s claim which claim has been rejected by Iafrate. Further, Iafrate has advised the bonding company of its basis for denying Eastern's claim for payment which grounds are baseless. Moreover, at no prior time did Iafrate refer to the subject dispute resolution clause or seek mediation despite several months extension of time to answer the Complaint or otherwise address Eastern's claim. Thus, the instant objection is merely interposed for additional delay and to prejudice Eastern's rights against the National Fire bond. 9. Denied. Eastern denies there is a binding'dispute resolution clause as averred by Iafrate. On the contrary, the clause is inapplicable because it would prejudice Eastern's right to seek payment of the sums due it pursuant to the payment bond for the subject project. 10. Denied. Eastern denies its complaint must be dismissed and further denies there is a prior agreement for alternative dispute resolution which is enforceable and must be satisfied. On the contrary, the dispute resolution clause is inapplicable pursuant to the clear terms of the Subcontractor Agreement. Alternatively, to the extent the Court orders the parties to participate in a futile mediation process, it should stay the instant suit rather than dismiss the action so as to ' ' t claim against the preclude the rtmning of the statute of limitationS and Eastern s :rlgh to pursue a surety National Fire. WHEREFORE, Eastern respectfully requests this Honorable Court overrule Iafrate's Preliminary Objections and compel it to Answer the Complaint or; alternatively, stay the proceedings pending the mediation process so as to preclude the passing or nmning of the statute of limitations for a claim by Eastern on the National'Fire bond. Respectfully submitted, FITZPATRICK LENTZ & BUBBA, P.C. J0s(~g~t g. D'Amico, Jr., L-~re I.D. No. 55645 4001 Schoolhouse Lane P,O. Box 219 Center Valley, PA 18034-0219 (6i0) 797-9000 Attorney for Plaintiff CERTIFICATE OF SERVICE~ I, Joseph S. D'Amico, Jr., Esquire, attorney for the Plaintiff, do hereby certify that a copy of the within document has been served on counsel for Plaintiff by First Class United States Mail, postage pre-paid at the following address: Thomas L. Isenberg, Jr., Esquire: Duane Morris 305 North Front Street 5th Floor P.O. Box 1003 Harrisburg, PA 17108-1003 FITZPATRICK LENTZ & BUBBA, P.C. DATE: I.D. No. 55645 4001 Schoolhouse Lane P.O. Box 219 Center Valley, PA 18034-0219 (610) 797-9000 Attorney for Plaintiff PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY/OF CUMBERLAND COUNTY: Please list the within matter for the next: Pre-Trial Argument Court Argument Court CAPTION OF CASE (entire caption must be stated in full) Eastern Industries, Inc., (PlaintifO Angelo Iafrate Construction Co. and National Fire Insurance Company of Hartford, (Defendant) ¥$. No.' 02-4757 CiG Action g~ 2002 1. State matter to be argued (i. e., plaintiff's motion for new trial, defendant's demurrer to. complaint, etc.): Angelo Iafrate Construction _'cOmpany., s. Pr.eliminary . Objections to PlainLiffi-~ Complaint 2. Identify counsel who will argue case: (a) for plaintiff: (b) for defendant: Thomas L. Isenberg, Jr. I will notify all parties in writing within two days that this caze has been listed for argument. _ Company Dated: CERTIFICATE OF SERVICE And now, this ~.,.O day of ~ 2003, I, Patricia Z. Glusko, a secretary with the law firm of Duane Morris, LLP, y certify that I have served a true and correct copy of the foregoing document on the person(s) listed below at their respective addresses, via first-class mail, postage prepaid. Joseph S. D'Amico, Jr., Esq. Fitzpatrick Lentz & Bubba, P.C. 4001 Schoolhouse Lane P.O. Box 219 Center Valley, PA 18034-0219 Attorneys for Plaintiff National Fire Insurance Company of Hartford CNA Plaza Surety Claims 13 South 333 South Wabash Avenue Chicago, IL 60685 Co-Defendant Patricia Z. ~sko IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PI~ CIVIL ACTION-LAW EASTERN INDUSTRIES, INC., Plaintiff No.: 02-4757 ANGELO IAFRATE CONSTRUCTION CO. ' and NATIONAL FIRE INSURANCE COMPANY " OF HARTFORD Defendants PRAECIPE AND POWER OF ATTORNEY FOR SATISFACTION AND/OR TO THE PROTHONOTARY/CLERK OF SAID COURT: You are hereby authorized, empowered, and directed to enter, as indicated, records thereof: A.. 1.__ The within suit is Settled, Discontinued, Ended and costs paid. 2. X The within suit is Settled, Discontinued, Ended WITH Prejudice and ct 3.__ The within suit is Settled, Discontinued, Ended WITHOUT Prejudice ant B. 1.__ Satisfaction of the Award in the within suit is acknowledged. 2.__ Satisfaction of Judgment, with interest and costs, in the within matter is C. __ Other: WITNESS (If signer is other than a registered attorney): Attorney Attorney or Notary of authorizi( Joseph S. D'Ami~ Type or print name of ab COST PAYMENT VERIFICATION I UNDERSTAND THAT THE ABOVE ACTION CANNOT BE FILED AND DO! COSTS HAVE BEEN PAID, INCLUDING SHEKIPFS COSTS; AND HEREBY COSTS HAVE BEEN PAID. I UNDERSTAND THAT FALSE STATEMENTS, SUBJECT TO THE PENALTIES OF 18 Pa.C.S. SEC. 4904 RELAT]~ FALSIFICATION TO AUTHORITIES. ~ .~,~( k,.J Signature NNSYLVANIA ?ERMINATION he following on the ~ts paid. ! costs paid. eknowledged. Jr. >ye signer 2KETED UNTIL ALL VERIFY THAT ALI, HEREIN ARE MADE qG TO UNSWORN