HomeMy WebLinkAbout96-02890
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POWILL, TRACHTMAN, LOOM, CARRLI , BOWMAN, P. C.
BY' C. GRAINGIR BOWMAN, ESQUIRE
ATTORNIY 1.0. NO. 15706
DAVID W. rRANCIS, ISQUIRI
ATTORNIY 1.0. NO. 53718
MICHAlL W. WINrIILD, ESQUIRE
1.0. NO. 72680
114 NORTH SECOND STREET
HARRISBURG, PA 17101
(717) 238-9300
ATTORNEYS rOR PLAINTIFF
REE-TA QUAY CONSTRUCTION, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
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v.
Civil Action - At Law
NATIONAL UNION FIRE INSURANCE
COMPANY
-2S'fi(' Ol(};( \.)U/..,-
Defendant
{j!<
NOTIel!!
You have been sued in court. If yOU wish to defend aaainst
the claims set forth in the followina Daaes. YOU must take action
within twenty (20l days after this comDlaint and notice are
served. bY entering a written aDDearance Dersonallv or bY attorney
and filina in writina with the court your defenses or obiections
to the claims set forth aaainst you. You are warned that if YOU
fail to do so the case may Droeeed without you and a iudgment may
be entered aaainst vou by the court without further notice for any
money claimed in the comDlaint or for any other claim or relief
requested by the Dlaintiff. You may lose money or DroDertv or
other riahts imDortant to YOU.
YOU SHOULD TARE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU-DQ
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.
Court Administrator
Cumberland County Courthouse
4th Floor
1 Courthouse Square
Carlisle, PA 17013-3387
(717) 240-6200
NOT I C I A
Le han demandado a usted en la corte. si usted quiere
defenderse de estas demandas expuestas en las paqinas eiquientes,
ueted tiene viente (20) dias de plazo al partir de la fecha de la
demand a y la notificaeion. Usted debe presentar una aparieneia
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.
of business located at 139 University Place, Pittsburgh, PA
15213.
3. Adams county Asphalt Company ("ACA") is a Pennsylvania
corporation with a principal place of business located at 614
North Front street, P.O. Box 1531, Harrisburg, Pennsylvania 11105.
4. On or about March 12, 1992, ACA submitted a bid to PaDOT
for the rehabilitation and construction of certain improvements to
the rest stop area located on SROOBl (also known as Interstate 81)
in Cumberland County, Pennsylvania ("Project").
5. The scope of the Project work included, among other
things, the installation and extension of the existing on and off
ramps, the expansion of existing parking facilities, drainages,
impr~vements, and the installation of guide rails and lighting.
6. On or about June 3, 1992, ACA was awarded the contract
for the Project by PaDOT ("the Prime Contract"). sometime
thereafter, ACA and PaDOT entered J.nto the Prime Contract for the
performance of the work on the Project. Upon information and
belief, a true and correct copy of the contract is in the
possession of Defendant National Union.
1. Pursuant to the terms of the Prime Contract, and as
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required by the Public Works Contractors' Bond Law of 1961, 8 P.S.
5191 et seq., ACA furnished a payment bond for the protection of
claimants supplying labor and/or materials on the Project, and a
performance bond to ensure ACA's performance of their con~ract
work.
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8. On or about June 12, 1992, ACA as principal, and
Defendant National Union as surety, in accordance with the
obligations set forth in paragraph 7 above, executed Payment Bond
No. 10-61-59 ("Payment Bond") and Performance Bond No. 10-61-59
("Performance Bond"), true and correct copies of which are
attached as Exhibit "A" and incorporated by reference.
9. In or about July 1992, Kee-ta Quay entered into a
subcontract with ACA to perform certain curb and sidewalk work on
tho proj ect (" ACA/ Kee-ta Quay Subcontract"). A true and correct
copy of the ACA/Kee-ta Quay Subcontract is attached as Exhibit
"B", and incorporated by reference.
10. The ACA/Kee-ta Quay Subcontract provided for Kee-ta Quay
to complete certain items of work in accordance with the
specifications of the Prime Contract.
11. Between May 24, 1993, and October 13, 1993, Kee-ta Quay
completed the following items of work in accordance with the
ACA/Kee-ta Quay subcontract ao follows:
a. Mobilization at a lump sum cost of $5750.00
b. One type M Inlet, Item No. 0605-2060 at a unit price of
$1,200.00
c. 3985 If of Plain Cement Concrete Curb, Item 10630-0001,
at a unit price of $13.10/1f for a total amount due of
$51,024.50.
d. 40.00 sy curb cut ramps, Type 1 single, item 10694-0010,
at a unit price of $49.50/sy, for a total due of
$1980.00
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e. 7.67 cy Class A cement concrete, item 11001-0010, at a
unit price of $485.00/cy, for a total due of $3719.95
f. 336.80 sy Reinforced cemont concrete sidewalk, item
19676-0001, at a unit price of $30.00/sy, for a total
due of $10,104.00
g. 13.33 sy concrete picnic pads, item 19676-0002, at a per
unit price of $35.00/sy, for a total due of $466.55.
12. PaDOT inspected all of Kee-ta Quay's above referenced
work, approved it, and ultimately processed it for payment to one
of the parties, as more specifically set forth below.
13. On or about October 13, 1993, PaDOT, through no fault of
Kee-ta Quay, held ACA to be in default of the ACA/PaDOT Contract.
At the close of business October 13, 1993, PaDOT shut down the
project until further notice.
14. On or about October 13, 1993, PaDOT advised National
Union that PaDOT had defaulted ACA, and that PaDOT expected
National Union to assume its obligations under the performance
bond.
15. Upon information and belief, ACA was paid by PaDOT for
work performed by Kee-ta Quay through October 13, 1993 as follows:
a. 100% of Kee-ta Quay's mobilization.
b. 616 lf of Plain cement work, item 10630-0001.
c. 4.97 cy Class A Cement concrete, item 11001-0010.
16. On or about November 3, 1993, National Union instructed
PaDOT not to release any payments to ACA for work performed on the
project without prior written approval of National Union.
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17. On or about March 21, 1994, National Union and PaDOT
entered into a written construction contract take-over agreement
("the takeover agreement") whereby National union agreed to honor
its obligations under the performance bond and complete the work
on the project. A true and correct copy of the takeover agreement
is attached hereto as Exhibit "e" and incorporated by reference.
18. Under the terms of the take-over agreement and the
performance bond, National Union was required to fulfill all
contractual obligations of the Prime Contract.
19. On or about May 27, 1994, and June 24, 1994, PaDOT paid
National Union, by way of several checks, for work performed by
Kee-ta Quay under the ACA/Kee-ta Quay subco~tract during the
period up to October 13, 1993, as follows:
a. One type M Inlet No. 0605-2060.
b. 3279 lf plain cement concrete, item #0630-0001.
c. 43.66 sy curb cut ramps, type 1 single, item #0694-0010.
d. 2.70 cy class A cement concrete, item #1001-0010.
e. 336.80 sy reinforced cement sidewalk, item #9676-0001.
f. 13.33 sy concrete picnic pads, item #9676-0002.
20. Despite receiving payment from PaDOT for work performed
by Kee-ta Quay, National Union has refused to pay Kee-ta Quay,
without any legal justification or excuse.
COUNT I - NATIONAL UNION ~IRB IN8URAHCB CO.
BREACH O~ CONTRACT
21. The averments of paragraphs 1 through 20 are
incorporated herein by reference.
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22.
By entering into the take-over agreement, National Union
aSBumed all contractual obligations of ACA, including the ACA/Kee-
ta Quay subcontract.
23. Despite repeated demands, National Union has refused to
pay Xee-ta Quay for work performed by Kee-ta Quay.
24. By failing to pay Kee-ta Quay, National Union has
breached its assumed contract with Kee-ta Quay.
25. Kee-ta Quay has satisfied all conditions precedent to
bringing this action.
WHEREFORE, Plaintiff Kee-ta Quay demands judgment against
Defendant National Union for $58,196.12 plus interest, costs,
fees, attorney's fees, and such other relief as this Court deems
appropriate.
COUNT II - NATIONAL UNION rIRB INSURANCI CO.
UNJUST IlNRICHMIlNT
26. The averments in paragraphs 1 through 25 are
incorporated herein by reference.
27. Upon information and belief, National Union has been
paid by PaDOT for work performed by Xee-ta Quay in the amount of
$58,196.12, and has refused to pay this to Kee-ta Quay without any
justification or excuse.
29. National Union's receipt of payment from PaDOT for work
performed by Kee-ta Quay is an unjust enrichment at the expense of
Kee-ta Quay.
29. tl'ational Union's actions of directing PaDOT not to make
payment to ACA, receiving payment from PaDOT for work performed by
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Kee-ta Quay, retaining this payment, and refusing to pay Kee-ta
Quay is against the fundamental principles of justice and good
conscience and is patently unfair.
30. As a direct and proximate result of National Union'.
unjust retention of monies paid for work performed by Kee-ta Quay,
Kee-ta Quay has suffered and continues to suffer serious financial
injury.
WHEREFORE, ~ee-ta Quay demands a judgment in its favor and
against Defendant National Union in the amount of $58,196.12, plus
costs and attorney's fees as permitted by law.
COUNT III - NATIONAL UNION rIRI IN8URANCI CO.
PERrORMANCE BOND
31. The averments in paragraphs 1 through 30 are
incorporated herein by reference.
32. Under the terms of the performance bond, National Union
was required to satisfy all contractual obligations of the prime
contract with PaDOT, which included making payment to
subcontractors such as Kee-ta Quay.
33. National Union has failed to pay Kee-ta Quay for work it
performed on the project, in breach of contract and in violation
of its obligations under the performance bond.
34. Kee-ta Quay is an intended third party beneficiary to
the performance bond.
WHEREFORE, Kee-ta Quay demands a judgment in its favor and
against Defendant National Union in the amoun~ of $63,946.12, plus
costs, fees and attorney's fees as permitted by law.
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COUNT IV - NATIONAL UNION rIRB IN8URANCI CO.
PAYKINT BOND
35. The averments in paragraphs 1 through 34 are
incorporated herein by reference.
36. l<ee-ta Quay performed labor and furnished material in
the prosecution of the work provided in the ACA/l<ee-ta Quay
subcontract.
37. l<ee-ta Quay has not been paid in full for the labor and
material supplied on the ACA/l<ee-ta Quay subcontract.
38. l<ee-ta Quay has satisfied all conditions precedent for
entitlement to a claim upon the payment Bond, thereby entitling it
to payment by National Union for materials furnished and labor
supplied on the Project.
39. National Union has failed and refused, without legal
justification, to honor its payment obligation to Kee-ta Quay
under the terms of the Payment bond, despite l<ee-ta Quay's
demands.
WHEREFORE, Kee-ta Quay demands judgment against National
Union for a sum in excess of $63,946.12 plus iuterest, costs and
such other relief as thie court deems appropriate.
COUNT V - NATIONAL UNION ~IRI IN8URANCB CO.
BAD fAITH
40. The averments in paragraphs 1 through 39 are
incorporated by reference.
41. National Union acted as an insurer to subcontractors and
material suppliers providing labor and materials to the project.
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42. Xee-ta Quay is an insured under the terms of the payment
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and performance bonds.
43. National Union's failure to pay Kee-ta Quay amounts due,
after receiving payment directly from PaDOT for work performed by
Kee-ta Quay is a violation of the Pennsylvania Bad Faith statute
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42 Pa.C.S.A. S 8371.
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44. National Union's refusal to pay Kee-ta Quay after demand
was placed upon National Union under the payment and performance
bond is a violation of the Pennsylvania Bad Faith statute, 42
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Pa.C.S.A. 58371.
WHEREFORE, Kee-ta Quay demands judgment in its favor and
against Defendant National Union in the amount of $58,196.12, plus
the following:
(1) interest on the amount of the claim from October 13,
1993 until payment is made in an amount equal to the
prime rate of interest pllls 3';
(2) punitive damages;
(3) assess court costs and attorney's fees against National
Union.
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POWELL, TRACHTMAN, LOGAN,
CARRLE , BOWMAN, P.C.
By
D
I O. #53718
Michael W. Winf
1.0. #72680
114 North Secon
Harrisburg, PA
(717) 238-9300
Date: May 22, 1996
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u. tn. and co:n'aot to the ~a.t of 11'1 )cnowlad9., infonation and
au..r. :I: undal'lItand tb.t any fal.. .tataent. III&da bU'ein a~e
aubject to the pqnaltie. of 11 P..C... 14'04 ~latinr to un.vern
tal.itie.tion to authoriti...
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1FORI1AHCE 80110
BOliO HO.
,-6,-59
K~OW ALL I1E~ BY THESe PRESE~TS. That wo.
Adams Coun'~ Asphalt Co
o~ P,O. Box 1~31
Harrlsburg. Pannsylvania 11101
as PRINCIPAL. and Nationa 1 Union Fi re insurance Company of Pi ttsbur9h, PA
70 Pine Str1!et, New York, NY 10279
. cor~or.tion, as SURETY, are h.ld and tirnly bound unto the Ca.mon-
waalth 01 Ponnsvlvania in tha full and just sum of __two aillion six_
_hundrad tor~r-fiva thousand aight hundrod ninaty and 6S/100__dollars
C, ____2.645.190,63 ____I. lawful monay ot tha Unlted Statas o~
Amarica. to b. paid to t~. said Commonwealth of Pennsylvania. or its
a.signs. to which payment wall and truly to bo mado. we bind our-
s.lv... our h.irs, executors, ed.inistr.tors, and SUCClSsors, jointly
and severally. firmly by thoso presonts,
Sealed with our .aspoctive soals and dated this 12th day of
June
A. D. 19
92
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WHEREAS, the above bounden PRINCIPAL ha. undertaken to
c~ntr.ct wlth the 5~~d C~mmonw..lth of ?en"sy!vani~. ~y ~nd
through th. S.er.t~ry of Trans~ortation ~oyerin9 ~h. ~or~
ident1f:.ed below for apo":~I)(:...at.ly the sum of t',.,o m~l~.:.on 5:')(
_~undr.d for~y-~iv. thousand .i~ht hundred n.:.nety and 6;/:aO___dollars
($___Z,645,190.63__)
For t~o imprqvamont of a cartain Sec~ion of STATE HIGHWAY ,n CUM8ERLAND COUNTY,
P~~N iOWIISHIP, Commonwealtn o~ Pennsylvania, STATE ROUT~ 0041 SECTION R1Z. TM,.
~""oject is located .,:u;1r"ox:.mat.aly 5 mil..s sou'th of C.rlisl. on I"&l i,..oQ Stat:':::"!
~"l.iO CSolllllont 0370, OHsot 01l5l ~o station 649+50 CSeg"ent 03';4, Ofisu
Z;3~) northbound. a"d station 676+00.00 CSegmont 03&5. O~i.et 0025) to statio"
IZ6+00 CSov-ent 0391. Of is at 2194) sou~hbound. for axpa"Ging p.rkin9 ~acili~i.s
,nd l.ntthenint r..ps wi~~ reinforced ceMent concr.te pave..nt, 10ft d.pth,
C1rainag:. i..u.ov....nts. installation 01 guide rail, and installation o-r
Ilgi'lt:.n9. all wHhin an ovonll pro;oc~ length ot 1O.023.i9 fe.t C1.19 milas)
as indicatad on tho drowin9s approvad Oacombor 17, 1990.
and
WHE~EAS, it was on. ~!'1" conditions 01' ~h. .award of ~he Sec:-etary
of i,..n.DG,.tat~on. acting to'" ,nd on b.".lf of the C~IftaQnw.illl::h at
~.nnsylvania. Dursuant t~ ~hicn said contract was unde,..~aktn by ~he
P~!NCIPA~ that ':~.s. ",,...sent's .haule: be .xec'.l~.d. to "ec::me blndint;
y:on ~~e data sa:d c::n~~ac~ ~s aDO"'~v'~ ~~,.. ~~. Ot~~ca of ~~. 3~dg.~.
by ~h. CQmQ~:-all.,...
,~O~l. rHI!.~E~IJR~. in. (;:Jnoi1::ons or '::1:'5 Qoiigai:ion :5 5\.1(;:' ~M~~ :,':*
-:h. above bo\,nden PQINr.::.;).~L, as CC'Jn'tiac'::Jr, 5:-10111 :n .Ll r'!s.,ec-l:s
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C~S ~9Z051l, rZ25910 C~lza71CCJNT~AC7J
~dam'" County Asphalt C.
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Title
Titb
NATIONAL UNION FiRE [NSURANCE: CO~PANY
OF p!i7SaURGH. ?A
Surety C.:)!:Igany
"''t~.st
3v
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At~,..n.y-~n-~.ct
HARRY R, .jOHNSON
At~orn.y-in-F.ct C.~~:fication
----- - ------ - --." ------ - --- - - --
-The under$igned .ttorn.y-in-~ac~ by executing this P.rformanc.
Son. c...ti~ies that h./she is lic.nsed with the com..nv named IS
su..ety '0.. this bond bv the P.nnsylvani. Insu..anc. De.a,.t~ent and
that to the b..t 01 hiS/he,. knowledve the Slid su...ty is licensed
,with th. '.nnsylvlnia !nsur.nc. D.p.r~m.nt,
!HST~UCTIQNS - Ple.se s,vn wn.,.. inoic.ted 1<--), If Co"'."at,on.
sign bv ~~.s~d.nt Qr Vice ~~.sid.nt and a~t.s~ bv S.cr.~ary or
Tr..sur.r. ~t~ix sIal. !f Par~n.r5n~~. si9n by .>>ch par~M.r a~d
~i~~.ss s~9n.~~,... of ~.c~ ~.r~~.r. :~ !~=i~~d~al, si;~ ~y
pr~pr:.tor Ind ~l~n.ss. !ndicatl sur.~'l comp~ny. s:~n ~y .~~or'.y-
~n-rac~ C?:. .:.c:.ns.CJ ,:;:.51c:.n~ ;'gent vn>,), oat:aln Wi';;,\.55 $.i9n",;'~r".
If~~x 5ur.t~ ~~mp.ny's s.~i. ~~~ac~ ~O~.~ or ~~~~r~.y t~ ~hlS ~a9..
O~/ll/q2
C~5 ~9Z~S11,rZZS910 CJaZ071(C~HT~.C7i
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':oIENT 10ND
50ND NQ. :0- 5;
KNOW ALL MEN 5Y TNESE PRESENTS, Tha t WI.
~4.ms Count~ ~sgh~Lt C~.
of PO, 50" 1531
Harr:.sb....rv, P.nnsvLvlIn:.. lilOl
.IS PRINCIPAl, and Natlonai Union Fir~ [nsurartCl! CJmoany of PittS:Jurgh. p~
70 Pine $tree~. ,~ew 'Iork, /lY 10270
a corporation, as SURETY. arl hl!d ano firaly bound unto thl Common-
w.alth of Plnnsylvlnia in thl full and just sue of __~~o aillion si,,_
_hundrld forty-tivl thousand livht hundrld nin.~1 and 63/100_ dollars
(t_Z.64.5.&90,63_), 18wtul aonlY ot thl Unitad States at .I..adca,
to b. paid to the said C~mmonwe,lth 01 Pennsylvania, O~ i~ .ssiGns,
to which paymlnt wall and truly to b. ...dl. wa bind oursolvlS. our
heir., ...cutors, Id.inistrators, .nd suc;.saors, jointly Ind
savorally. fir..ly by thasa prlsants,
Soalld with our rlspoctivl .Ial. and datld this 12th ..y of
U'une Q2
A,O, 19.':.--.
WHEREAS. Tho abov. bounden PR!NCr?~L has uncior"akln to
cont~lct with ~he s~id Commonwealth of ?nnsylvan~a. by ino
~hr~u9h the S.e~e~~,..y Qf 1,..~ns~ortat:on cov.,..in9 ~h. ~or~
identifilld b.low fo,.. ,ap,:lro)C::.matt~'1 't~1t sum or 't....~ ::l::l:.on s=..x
_hundred for~y-f~v. ~Mousand ~~~ht huncr.~ nin.t~ ind ~:/l~O___aol~lrs
($__Z,64;,39U.63____),
For thl impr~voment ot . clr~ain Sect:on of S,A'G HIGHHAY 1n CUMBERL.lNO COUNTY,
P!!!lN TOWNSHIP, Commonw..lt,' ot Plnnsybanu, S,.I,E ROUTE 0041 SECTION R1Z, nn.
~"o:.c": i. locat:ed .ppro)(:.ma~.!'1 5 "'I11es south 01 C.r!':',51e on I-al tr-om St.Jt:.on
441+70 (Seq..lnt 03.0. Of':'.at Oil:) to S""on 64;+:0 (!aV"'ln" 0374, OHu"
Z3J31 northbound. and Station 676+00.00 (Solllllnt 03aS, Of~sat 002~) to Stat:on
725+00 (Se9Ollnt 0391, Ot1's.tZ194) southbo"nd. tor ""plndinv park:nv tac~!:t:LS
and len9~h.nin9 ramQS with reinforced cement CQnc~et. ~.v.ment. 10" dep~h,
dratn.",e i..p,.ovellle"1:.s, ins"tallatio" of ~uide raiL ana ln~-:Ill.a't:.on ot
lillh'inll. all within an overall prOloct l.nvth ot 10,OZ3.i9 tlet (1.a9 """S)
a. indicated on tho drawings app_ovld Ooclmblr 17. 1990.
and
:.fHI!~EAS, ~ ~ ....a$ on, of ~~. o::ondi -::. ""5 Qr ~h. ,ward of -:1'1.
Sec:-et.ry of Tr.n.s;:lOr~at1on. aC"'::.n9 -:'or and on benal':' of the CO,","C1n-
'Je.Ith o~ PennSylvoilnloi1. pursuant ':0 ..-nlC::1 SllCJ c~nt;",ac:": ',"i1S l.Ina,,.-:.ak.n
oy -:~I ?~!NCr?AL ~:'at -:h151 ~H"Sol!n~s s:"toulc !:l'l eXlor:'Jt.c. -:J 'o.O::lln.
':i:",:o:!i:'l9 'JPon ,::,"'. oatl! s.ud r:ont"'3C~ :'.5 .1ClO,.01J40 ~:l" 0:.1"'.. Of..;:c. of
~h. Judget. by ':~e C,:]'"g't,..~ll.r
H'y"~ ';";;e~E.'::':~i\E, ~he c~nd:. ~:Jn J-f -:h~.s ~:~:.;a~::;.~ :s 5:":':,": -:,~a-: :of
~M. 'Do"e ~ou"c:en ."Q!NC:?,1,L 5"'ol~~ ..no "'":~ ,;"':h\'lPt~'1 0'" .::aus. ':~ ~.
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p.id in ful! .11 S~ 0# ~on.V ~hlCh ..V b. due bv ~ .rlcto~ or
oth.r-wis., ~o .ny individual, f:.r", p.rtner.hi,,, ISSQc:..t:on, or
corpor,tion, for .11 ..t.r:.ls furnished or tabor supplied or
per1or..d 1n the prO..cut:on or the ~ork, whither or not the .aid
~.t.r~.l or L.bor .nt.rld :'nt~ and blcam. co~pan.n~ P."~S at the work
or i..rov.mlnt c~nt,.pll~'c. .nd far ,.,ntal 01 ~~. ,quiPG.nt us.d and
s.rvic.. ,..nd.,...d bv S>>l"Ibl~c It'tiHtils in, or in c:Jnnlct:.on w:.th, the
pro..cut:on of such work, thin this obl:.;.tion t: !:. void. o't:l'1.,-""i.s.
tr:t ,....in in full tore:. .ne: ,"TIC":..
Th. P~INCIPAl .nd SURETY h.r.by. jQintlv snd ..v.rallv. s~r..
with the oblig.. h.,..in t~t .ny individu.l. '1,..:n. pe,.t':1,,.,hip,
associ.tion or corpor.tio", which has p,,.1or.ed 1100r or furnish.d
lIat.rial in the prQ.acutiQIl Qf the work .. prQvid.d. .nd .nv public
utility which h.. rendered servic... in, or in connec~ion with, the
"rQ..cutiQn Qf .uch wQrk, .nd which has not bun ..sid in full th....-
1or, ..V su. in Issu.psit on this PaYMent lond in his, their, or its
Qwn ns.. and ..y p...s.cut. the .... t. fi.nsl jU~~.II.nt fQr such sum Qr
su.. ss ..y b. justly due hi... th... Qr it. snd h.v. ex.c~tiQn th.ra-
Qn, PrQvid.d. hQw.v.r. that the CO....Qnw..1th .hall ROOt b. Iisbl. fQr
the pav-ent 0# .ny cost~ or e~pens.s 01 such suit.
Recov.ry by any indiv:d~al, 'ir~, Q.rtn.rshj~. Issociation or
corpor'.t:.on ....r.und.r shIll b. 11,Ibjae't: to tha j:)r'ovisions of the
"Public Works Cont~.c't:grs' Bond law 0' 1967", Ac': :ie. sas. 'PP"ove~
December' 20. 196;. P,L. .!ci9. which Ac~ shall be inc~r;:lo,.a,:,d nere,:,:"I
and made a par-t her.oT. IS ful~'1 .and completely IS t~otJc;n :.ts p,..,-
....:.sions We,.e tully ilnd at ~.ng~n her.:.n recited.
I":: is furthe,. p,.o....~d.d 'that any ..Iterations 'Wtu.ch "'.'/ be mad. in
~h. terms of the contract or in ,:h. 'Wor~ ~o b. dona or alt,ril!S ~o Qe
fu~nish.d or l~bo,. to be SUGolild or per10raed under it or the viving
by the COftaonw..l~h of Iny .x~.n.ion of t:~. for ~h. par7or~.nce of
~he contr.c~ or any other forb.ar.nee on the p.r~ of .ithe,. the
Common",..lth or the P!lINCIPAl tQ the oth.r. .11811 nQt in .ny wsv
r.l.as. ~he PRINC:PAL .no the SURETY Qr SURETIES or .ith.r or any 01
them, their heirs, executors. adminis~,..to,.s. sue:assors or Issigns
frQm th.ir liabi!ity h.round.r. nQtic. tQ tha SUR~TY or SURETIES of
any such .ltarat:on. extension. or forbe.rance being he,.eov ~aived.
1/1 WITNESS WHBEOF. the .aid PRIIlCIPAl .nd SURETY have duly
executed thjs lond und.r s.al the day and y.ar tirs~ above wri~ten.
O!/II/92
24
C~S.0920~11,T22!9to,c~a2011(C~NT~ACT)
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SUBCONTRACT AGREEMENT
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Adams County Asphalt Co.
. Contractor
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WITH
lee T. ~y CoDlltructiOD
Su contractor
PROJECT: RRD081-RI2 Cueberland County
WRK: Curb. Sidewalk
DATE;' IlIly
19 92
Contra(tor's Job Code No.
,...'.....I...;..W.-.....-.._;.. ."...._....-_............__
(a) Schedule of the Work
, ITl'JI , g"uant l_t..l peacr1p~ Unit Price Aoount
0630-001 3564 U' Plain Ceaent Concrete Curb 13.10 46,688.40
0694...()010 40 SY Curb Cut Ra.ps, Type 1 Single 49.50 1,980.00
1001-0010 12 CY Closs A CII.ent Concrete 485.00 5,820.00
9676-0001 624 SY Reinforced C...nt Concrete 30.00 18,120.00
Sidevalk, Special
90OO...()OOO .... 96 LP Screening Pence 45.00 4,320.00
0608...()001 L.S. Mobilization 5,750.00 5,750.00
Total: ... $ 83,278.40
(
1\0 ~~)I EM... 0 1\ ~d~ h II, nO ()'\,PT, .~ nO ..subb~ .
yJ!;, pt^ ~U()ti~ .~ CJ'Y) 2>l" I C\.l... y~
- 3 .
-... _.. .,.- ..,- ......... '. ,
..
(b) Special Conditions to Schedule of Work
(If none, 80 designate)
1. SUBCONTRACtOR TO PERFORM WORK IN ACCORDANCI'; Wl'I'lI TilE PROJECT SPECIFICATIONS ANIl CONTRACT
DRAWINGS.
2. ALL HATERIALS SUPPLIED Alm/UIl USED DY TilE SUDCONTRACTOR SHALL HEET IU'.QUIREHENTS AND
SPECIFICATIONS FOR TillS PROJECT ANIl ALL MATERIAL SIIlPHENTS TO DE ACCOMPANIED BY CERT-
IFICATION.
3. SUBCONTRACTOR IS RESPONSIBLE FOR AIlHINSTRATIVE PROCEDURES AND REQUIREMENTS ASSOCIATED
WITH SUBCONTRACTED SCHEDULE OF WORK.
4. SUBCONTRACTOR IS REQUIRED TO FURNISII EVIDENCE OF INSURANCE AS REQUIRED DY SPECIFICATIONS
AND/OR CONTRACTOR.
5. QUANTITIES OF WORK PERFORMED ARE TO DE VERIFIED BY THE CONTRACTOR.
6. SUBCONTRACTOR BOUND TO PREVAILING WAGE SCIIEDULE <ATTACHED). CERTIFIED PAYROLLS HUST BE
SUBHITTED TO CONTRACTOR IN A TIHELY HANNER.
1. SUBCONTRACTOR SHALL BE RESPONSIBLE FOR ANY P~;NALTIES ASSESSEIJ AGAINST CONTRACTOR DUE TO
LACK OF PERFORMANCE BY SUB CONTRACTOR.
8. SUBCONTRACTOR TO COHHENCE WORK WITIIlN 48 HOURS OF NOTICE FROH CONTRACTOR AND PROCEED
WITH ALL DILIGENCE.
9. CONTRACTOR RESERVES TilE RICIIT TO ISSUE A JOINT PAYHENT CHECK TO SUD-CON'fRACTOR AND/OR
MATERIAL ,SUPPLIERS.
10. SUB-CONTRAC1'OR REQUIRED TO IIAVE QUALIFIED AND PENNI>OT APPROVED SUPERVISOR ON PROJECT
AT ALL TIHES.
11. SUB-CONTRACTOR REQUIRED TO HAVE ALL APPLICABLE SALES TAX INCLUDED IN PRICES.
3. The Subcontractor, by executing this Subcontract,
represents and warrants to the Contractor that it is qualified,
capable, experienced and available to perform the Schedule of
t.he Work as let forth in paragraph 2 of this Subcontract under
t.he tenDS and conditions of the Principal Contract and this
Subcontract, in the quantity and for the !lI!lOunt therein set forth.
and within the tilDe as is, during the execution of tho Principal
Contract, designated. The Subcontractor does further represent
to the Contractor that where prequalification to perform the work
in this contract is required by the Owner and is a condition pre-
- 4 -
cedent to contracting or subcontracting to perform such work,
that the Subcontractor 18 duly 60 pfl'qualified and will remaln
prequalified for such work {or the duration of this Subcontract,
including any addition or extension thereof.
4. PROGRESS OF WORK - The Subcontractor will promptly
befin said work as 800n as he is notified by the Contractor and
wi 1 carry forward and complete said work as rapidly as the
progress of the work of the Contractor will permit. The Subcon-
tractor will furnish said materiala, labor and equipment.prose-
cute uid work with diligence, without delay, and will not in any
manner delay or otherwise interfere with the work of the Contractor
or other Subcontractors. Should the 6aid Contractor conclude that
a Subcontractor is unjustly and without valid reason delaying said
....ork. or the Subcontractor has perfonoed 6e1d work in a deficient
or improper msnner, he shall so not i ry said Subcontractor by cert:-
fied or registered mail. or by telegram, setting forth the complain:
in detail, and the Subcontractor will have two (2) days {rom the n-
ceipt of said mailed complaint or telegram to correct the cO::lplaint.
In the event Subcontractor laih to comply with 6a1d notice and to
correct the complaint, said Contractor shall have the legal right
to take possession of all equipment, machinery and supplies in and
upon the contract site, including, but not limited to, construction
machinery. equipment and supplies of the Subcontractor and to use
the same to correct the complaint or to have the complaint corrected
by subletting this work to others, and said construction machinery
and equipment as needed to be used to correct uid work deficiencies
shall be used by the Contractor or any subcontractor designated by
the Contractor to so use the same, The Contractor shall charge the
expense of the correcting work against said Subcontractor and de-
duct the s3lDe from the contract, and 6houId the amount of payment.
due on said contract be insufficient. to collect the &aid deficiency
from the Subcontractor by legal process and/or surety company. or
its agent s, by reques t or legal process. Upon correction of .aid
~ork, or the deficiency, the machinery and equipment of the Subcon.
tractor shall be delivered to Subcontractor. upon ootice, at the con-
tract site. Subcontractor shall supply skilled and experienced
employees ready and able to work in harmony ~ith the Contractor and
~ith other prime contractors and subcontracto.s and/or their ~-
ployees, acceptable to the Contractor. the Owner and the Owner',
representatives.
In performing the foregoing work the Subcontractor
sha 11 furnish all labor. equipment. materials. stlppl i('s and every-
thing necessary or incidental thereto or in connection with the
petrOI-mance by it of it6 work as r(''1uired and called for under the
provisions of the Principal Contract. It is understood and agreed
- 5 -
by the parties lH!l'elO that the quantity of work as 5hoYll above
are approximate only And are subject to increue or decrease
and it 18 Curther understood that all quantities of work whether
increased or decreased are to be perfonncd at the unit price
above quoted and agreed upon and that thl' Subcontractor, in all
events, shall be entitled to be paid for that number of units
finally determined upon by the Owner, if the Owner's determina-
tion i, not acceptable to the Subcontractor, the Contractor shall
appeal such determination to the extent such 1s feasible and per-
missable at the Subcontr.ctor', written request to do '0 .nd at
the subcontractor', cost and expense.
~. TIME ALLOWED FOR CONSTRUCTION OF PROJECT - It is
expreGsly understood and agreed by and between the parties hereto
that time is and shall be considered the essence of the contract
on the part of said Subcontractor lInd should the u~d Subcontractor
C.il to begin, continue and complete the work' as herein provided
'and should the Contractor suffer or pennit said Subcontractor to
occupy more time than required under this agreement, in th.t event
the said Subcontractor hereby covenants and agrees to indemnify and
s....e harmless the said Contractor from any loss or damage which may
be compelled to make good to the Owner, for or on account of delay
in the completion thereof, insofar as said delay was c.used by the
said Subcontractor. If the Subcontractor claims he is delayed in
tbe prosecution of his work through no fault of his O\ID and that
such delay is costly to him, he shall be entitled only to such com-
pensation for such delay as is allowed and paid for such by the
Owner to the Contractor to the extent such is .ttribut.ble to the
Subcontractor's work. Any such claim by the Subcontr.ctor shall
be submitted to the Contractor in writing, containing all pertinent
details, by the Subcontractor within ten (10) days of the alleged
de lay. Failure of the Subcont ractor to &i ve such vd ttell not ice
within ten (10) days shall terminate any ri&ht of the Subcontractor
to make such claim to the Contractor or the OImer.
6. CONDEMNATION OF WORK - The Subcontractor shall provide
sufficient, safe and proper facilities at all times for the inspec-
tion of the work by the Project Engineer, Architect and the Contractor
l)r their authorized representative, for the inspection of the Sub-
contractor's work and materials used or to be used. He ahall, at
once, remove all materials, and take down and rebuild all portions of
the work condemned by the Project Engineer, the Architect and the
Contractor or their representative, upon receiving notice in writing
of such condemnation.
7. EXTRA WORK - All ex! rA wOI'k to be perfolmed by the
Subcontractor must be condensed to writing lInd a rate of pay agreed
upon before such work i8 undertah'n, Said extra \lork agreements
must be signed by representative8 of the Contractor and Subcontractor
and will be subject to the terms lInel condition8 of thi. Subcontract
Agl'cement.
- 6 -
8. IPt~NlfICATION OF CO~rRACTOR-PATENTS AND PATENT
RIGHTS. The Subcontractor hereby covenant. and agree. to
ind(>mnify and save hal"lllleoe the Contractor frODl any and all
c 1Idms or lulta frOlll infrinGement. of patent. or violation oC
patent rights, including all costs and expense. to which the
Contractor IMY be put in defendins aoy action that may arise through
the ~ork of the Subcontractor.
9. INDEMNIFICATION OF CONTAACTOR AND OWNER FROH ALL
LIABILITY - The Subcontractor shall have charfe of the entire
~ork until completion and acceptance, and sha 1 alone be liable
for and shall pay all loss or damage caused by him Or by hi. .er-
vants, agents or employee. to property, bUilding. or adjacent work
and for any accident to person. that may occur during t~e per-
formance of the work covered by this Subcontnct or at any time
thereafter as a consequence of the performance of .aid work. The
Subcontractor shAll observe all state and municipalitr laws, ordi-
nances and regulations and shall defend and save harm ess the Con-
tractor and the Owner from all suits and claiNs whatsoever for loss
of life or injury occurring to e~ployees of the Subcontractor who
perform such work. The Subcontractor agrees to fully idelllJ'\1fy,
protect and save harmless the Contractor and the Owner from all li-
ability froiD all claims, loss, damage, suits and actions of every
kind and from all costs and expenses in connection with such claw,
suits and actions due to injuries to persons or damage to property
whether resulting from accident, negligence or any other cause vhat-
soever occuring during the performance of the work covered by thi.
Subcontract or at any time thereafter as a consequence of the per-
formance of the same or ~hich lDay at any time occur or result frO'Jl
or be caused by 6uch ~orK and if there are any 8uch claiQS un.ettled
when the ~ork herein provided for is completed, final settlement by
the Contractor and Subcontractor shall be deferred until luch cla~
are adjusted or suitable spedal indeomity acceptable to the Con-
tractor is provided by the Subcontractor.,
10. INSURANCE REQUIREMENTS - The Subcontractor shall take
ou t and pay for I
(a) Workmen's Compensation and Employer', Liability In-
surance in accordance with the laws of the State of Pennsylvania
and the Federal Statutes.
(b) Contractor's Public Liability and Property Damage In-
surance. Said policy of insurance will be written to provide for
t he following l1mi t s $1,000,000.00 dollars for all
d~a&es arising cut of bodily injuries to or death of one person,
llnd subject to that limit for each person. a total of $1.000,000.00
dollars for all damages arising out of bodily Injuries to or death
- 7 -
of two or more persons in anyone Icef.dent, and regular con.
tractors property damage liability insurance providing for a
limit of not len than $1,000,000.00 dollars for all
damages ari.ing out of injury to or destruction of property in
anyone accident and subject to that limit per accident, a total
(or aggregate) limit of $1,000,000.00 dollars
for all damages arising out of injury to or destruction of
property during the policy period. This policy of insurance shall
be endorsed al follows 1 to cover the explosives and collapse
hazards and injury to or destruction of wires, conduits, pipes,
~inl, seWel'l , or other similar property, or any appsratules in
connection therewith, below the surface of tl.e gro\D'ld, as such
injury or destruction is caused by and occurs during the use of
mechanical equipment for the purpose of excavating or drillin~ or
injury to or destruction of property at any time resulting there-
from.
(c) Public Liability and Property Damage Insurance
covering the operation of any motor vehicle used by or for the
account of the Subcontractor in connection with the work to be
performed under this Subcontract. Said policy of insurance will
be written to provide for the following minimum limits: Bodily
Injury Liability $1,000,000.00 dollars each person
and $1,000,000.00 dollars each accident, Property
Damage Liability $1,000,000.00 dollars each accident.
The Subcontractor shall furnish to the Contractor three
(3) copies of the policy and three (3) certificates of insurance
for the following of the above mentioned policies.
(a) Workmen's Compensation.
(b) Contractors Public Liability and Property Damage
Liability Insurance.
(c) Public Liability and Prope.ty Damage Insurance
covering the operation of motor vehicles.
All of the above mentioned policies of insurance shall
aaid policies shall not be changed or cancelled until
written notice has been given to the Contractor.
11. TAXES - The Subcontractor shall pay all the Pennsyl-
vania Sales and Use Taxes on all taxable items, and all Federal
Old Age Benefit Taxcs, Federal Unc~ployment Compensation Insurance
on all labor furnished under this contract, as required by the
CO:DIDonwealth of Pennsylvania and the United States Government, as
well as any other taxes, Fedcral, State or Local, applicable to or
occasioned by the Subcontractor's performance of this contract or
employment of persons hereunder.
provide that
l~ days
- 8 -
12, CONTRACT COMPI. lANCE - The 5ubcont rector 8hall
abide by all rerer~nccd or identified prlme contract provision.
Cor Federal aid projects, statutes, rulea, regulstions or pro-
cedures appli~able thereto 8S well 8S by all 8uch prime contrect
provisions calling Cor obsel~ance oC certain Pennlylvania or
local ststutes, rules, regulations or procedures whether or not
specifically referred to in thh lIubcontract and whether or not
Corma or certificates are supplied to the Subcontractor to achieve
such compliance. without limitation Buch matter. include Federal
and/or State non-discrimination proviaion., re-negotiation pro-
visions, minimum wate provlsionl, anti kick-back provilioris, PlY
day provisions, dai y and weekly overtime provisions, payroll de-
duction provisions, payroll classification and apprentice provillon.,
Payments under this subcontract may be withheld at any time to the
extent necessary to affect compliance with thi. ~r any other article
of this subcontract. Moreover, the Subcontractors shall maintain
a record of the total cost of all materials and supplies purchssed
for and incorporated in the work and also the quantities of those
s?eciCic materials and supplies and in the units shown. Upon co~-
pletion of the subcontract, thiG record, together with the final
labor 6U1lDDary shall be submitted to the State Diatrict Engineer, for
all State and Federally assisted projects, for the project on the
State's appropriate form for such or on a form aupplied by the pri~e
contractor in accordance with instructions thereon. The quantities
for the listed items shall be reported separately for roadway and
for structures over twenty feet long as measured along the entire
center line of the roadway.
13. ASSIGNMENT OF SUBCONTRACT - None of the rights under
this Subcontract, including assignment of funds, shall be assigned
by the Subcontractor without prior written consent from the Con-
tractor. Any attempt to assign the Subcontract will operate IS an
instant forfeiture and repudiation thereof by the Subcontractor
and the rights of the parties Ihall be determined in the lame manner
as though the Subcontractor had at the time of such attempted assign-
ment failed and relused to continue to perform the contract.
14. EXTENSION OF TIME - No a llowance of time vi 11 be made
the Subcontractor for delay in preparing his drawings or, in lecur-
ing approval of the Owner and the Contractor's engineers when luch
drawings are not properly prepared for approval of the Chmer and the
Contractor's engineers.
Extcn5ion of time to be granted to the Subcontractor
wi 11 be the fi<lme only as is granted to the Contractor by the OImer,
and will be in accordance ....ith the Spccifications in the Principal
Contract.
- 9 -
15. CONTRACT AND LA>>OR AND MATERIAL BONDS - The
Subcontractor further agrees that he will simultaneously, with
the execution of thia agreement, provide the Contractor, if
requested, with a Contract Bond, covering satisfactory'performance
of the work contracted, the penal SUIII of 100% of the amount of
the Contract, and an "AdditionRl Bond for Labor and Materiale,"
coverlng the prompt payment in full for utility services rendered
to sub-Subcontractors and for all materials furnished, rental
for equipment used, and/or labor supplied or performed, in the
prolecutlon of the work, and a100 In the penal SUlD of 100% of the
amount of the contract. Both bonds must also be executed by a
Co~porate Surety satisfactory to the Contractor.
Payments under this subcontract may be withheld at any time
during the 11fe of same for non-compliance with the above bonding
requirements.
16. TERMS OF PAYMENT - The Contractor agrees to pay the
Subcontractor his portion of all payments received by the Contractor
from the Owner within leven (1) days after receipt thereof. It is
also understood and agreed that all estimates shall include the
materials on the site if so permitted by the Owner as a part of the
current estimates.
It is further under~tood and agreed that no payment on
account shall operate as an approval of said work or materials, or
Mny part thereof.
17.
by the parties
proval of salDe
APPROVAL OF SUBCONTRACT - It is understood and <igeed
hereto that this agreement is subject to the ap-
by the Owner.
It is also understood and agreed that this agreement is
subject to the principal Contract in its entirety, entered into
by the Contractor and the Owner, relating to this particular pro-
ject.
18. CONTRACTOR' S RIGIITS 1'0 WITHHOLD PAYMENTS-
IT IS UNDERSTOOD AND AGREED THAT THE SUBCONTRACTOR
SHALL PAY -
(a) All employees unconditionally and not less
often than once a week.
(b) For all ll-i1nsportallon and utility services
not later than the 10th day of the calendar month following that
in which said services are rendered,
- 10 -
~
(c) ror all materials, tooh, rentala, and
other expendable equipt::el)t not later than the 10th day
of the calPndar month follo...lng that in which uid lDateriah,
toola, rentala and equipment 8l'e delivered at the elte of
the project.
A Contractor shall have the right to withhold paymenta
from the Subcontractor, in addition to retain percenUgea u
tIlay be provided in the Principal Contract, of auch !COW'ltl II
tIley be necessary both to insure compliance with all of the tel"1ll'
of thh Contract by Subcontractor, Cor work performed by the
Contractor or other subcontr.ctors in accordance with paragraph
~ of this Contract, 6nd as necessary to pay all just claims for
labor and services, rental and materials furnished in and about
said work, which is the obligation of the Subcontractor to pay.
The Contractor shall have the ri ght, act ing II agent of the Sub-
contractor, to apply such retained amount to the paycents of such
just claims and for ...ork required to be perlomed.
19. SUBCONTRACTOR'S RELEASE TO CONTRACTOR . Upon uce ipt
of Cinal payment. the Subcontractor does hereby agree to give the
Cant ractor a duly signed rehas e re liev ing the Contractor frOlll
any liability in regard to 1II0nies due under this Subcontract, and
the Subcontractor will certify that all of hh obligation. for
services, material!>, equipment rental, tooh, etc., incurred on
this Subcontract have been paid and that if anr liability lhould
occur on his behalf, then the Subcontractor wi 1 indemnify the
Contractor.
20. APPROVAL or QUANTITIES - Prior to the acceptance of
final quantities, the Contractor shall give fiv~ (5) days notice
of such quantities fo the Subcontractor for his approval.
21. PRIOR NEGOTIATIONS AND AGREEMENTS - All negot ht ion.
~nd agreements prior to the date of this agree:::lent are merged herein.
This Subcont ract has been read and is fully understood by the Sub-
contractor.
,
The Contractor and the Subcontractor for theoselves, their
successors, executors, adminis l rators and assigns, hereby agree
to the full perfol-mance of the covenants of this agree.clent.
22, n:RMINATlON - If pdlJC contractor'l\ work i6 termina-
ted or abandoned, if Subcontractor cannot work in harmony with
other Contractor6, Subcont rBctol-S or their employees, is in breach
- 11 -
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220lGCS/jc con.truc.
3/9/94
Aqreement No.
Fedenl. ID No.
Oi~o7/-1/
/.1",u9.,1J"1- Q
CONSTRUCTION CONTRACT TAKEOVER AGREEMENT
THIS CONSTRUCTION conTRACT TAKEOVER AGREEMENT ("the
Aqr.ement"), made and entered into this oJ \
day, of
N"\c...\",,[\-'"
, 1994, by and between the Pennsylvania Department
of Transportation her~inafter referred to as the OBLIGEE,
and
National. Onion Fire Insurance Company of Pittsburgh, Pa.,
.
hereinafter referred to as the SURETY.
WITNESSETH
WHEREAS, Adams County Asphalt Company (hereinafter referred
to ai ACA) entered into a contract with the OBLIGEE for various
improvements identified as Contract Number 082071 ("the
Contract"), which is incorporated herein by ref.erence as thouqh
physically attached; and,
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WHEREAS, the SURETY ia.ued it. performance and payment
bo~da, each in the amount of $2,645,890.63 and dated June 12,
1992, guaranteeing, in accordance with the terms thereof, the
fdthfuJ. performance by ACA of the Contract, and,
WHEREAS, by letter dated September 8, 1993, from the
District Engineer, Engineering District 8-0, OBLIGEE advised ACA
of OBLIGEE'. intent to declare ACA in default of the Contract,
and,
WHEREAS, by letter dated October 13, 1993, a true and
"orrect copy of which is attached hereto as Exhibit "A", the
OBLIGEE dechred ACA in defaul t of the Contract and caHed upon
the SURETY to discharge its bond obUgations, and,
WHEREAS, by letter dated October 13, 1993, a true and
correct copy of which is attached hereto as Exhibit "B", the
OBLIGEE called upon the SURETY to remedy the default and complete
I
or procure the completion of the Contract (RCompletion Work") in
accordance with the contract documents and SURETY has agreed with
the OBLIGEE to perform its obUgations under the bonds subjecl; to
certain terms, conditions and/or requirements to which the
parties hereto have agreed and which terllls, conditions and/or
r~uirements are hereinafter set forth, and,
2
~
WHEREAS, the Rep!acement Contractor hae entered or wi!!
enter, into a separate agreement(s' with the SURETY under which
Rep!aceme~t Contractor has agreed or wi!! agree to pertorm the
Completion Work under the Contract, in etrict accordance with the
terme and conditione of the Contract.
NOW, THEREFORE, in consideration ot the mutua! promises and
covenants contained herein, it is underatood and agreed as
to!!ows:
1. The toregoing recitals are incorporated herein bv
reterence as if ~et forth at length.
2. SURETY hereby agrees to take over Completion work and
the OBLIGEE agrees to accept Robert A. KinSley, Inc., 45 the
Rep!acement Contractor to perform said Completion Work.
3. Upon execution of the Rep!acement Contractor's
agreement, and prior to the 'physical atart ot Con.,,!etion Work, a
preconatruction conterence ("Conterence"' eha!! be held with
representative a ot the Surety, Rep,Lacement Contractor and
OBLIGEE's Engineering District 8-0. At the Conference a schedule
toqether with a plan to complete said Completion Work no later
than April 30, 1994, having delays resulting from and/or
consideration of pre-existing site conditions, e.q. frozen and/or
icy ground due to previous winter storms and/or temperatures
, .
4
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durinq the winter of '93-'94, current weather conditions
(-current- measurinq durinq the period in 1994 in which site work
is beinq or wal intended to be done by Surety), or aqreenent
between OBLIGEE and SURETY shall be presented by the SURETY for
the purpoles of e.tablishinq mutual aqreement on the duration of
Completion Work.
4. The Replacement Con~ractor will commence work no later
than leven (7) calendar days after the Conference and shall
complete the Completicn Work within the time as set forth in the
schedule a. approved at the Conference or as amended by
subsequent written aqreerr~'t between the OBLIGEE and the SURETY,
5. The Agreement will be administered by the OBLIGEE, ane
the OBLIGEE will deal directly with the SURETY or SURETY's
designated representative in administerinq the Agreement. lhe
SURETY hereby authorizes the Replacement Contractor as the
SURETY's designated representative to deal directly with the
OBLIGEE in discussinq and negotiating only such matters which
have no eftect upon the value and/or Icope of Completion Work
and/or upon the time in which Completion Work is to be performEd.
6. The OBLIGEE shall pay directly to the SURETY the amounts
and unit prices for work completed in accordance with the
Agreement, This sum is to be paid in the manner provided by the
Contract, and nothing herein shall limit or waive SURETY's right
, .
5
,-')
for additional compensation, if provided for under the Contract,
Agreement or related documents.
.
7. ,The parties hereto hereby acknowledge and agree that, by
this Agreement and/or by operation of law, equity or both, SURETY
has succeeded to all the rights of ACA to payment and to all the
rights of the OBLIGEE, inClUding, but not limited to, the
OBLIGEE's right to set-off funds for any loaa suatained on the
Contract andlor the Agreement against any funds that may be due
ACA on any other contract between OBLIGEE and ACA, subject to the
provisions of Paragraph 11.
8. It is understood and agreed that nothing in this
Agreement shall alter, affect, or vary the rights and Obligations
of the parties under the terms of the original Contract between
the OBLIGEE and ACA and the performance and paymen~ bonds issued
thereunder by SURETY except as provided hereinl and OBLIGEE
agrees that SURETY' a total liability under this Agreement, the
Contract, and the conditions of the foregoing performance and
payment bonds issued on behalf of ACA ahall not exceed the penal
amount of the performance bondl and all payments made and to be
made by SURETY are deemed made pursuant to the SURETY's
obligation under 84id bonds and will be charged against the penal
amount of said performance bond.
9. The OBLIGEE and the SURE'rY acknowledge that nothing
herein shall extend, limit, alter, amend or waive either party's
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6
rights, defens.s or ob!igatiQns as provided for under the
Contract documents or the bonds except as express!y provided
otherwise in this Agreement.
10. The ob!igation of the SURETY to third parties as the
relu!t of the issuance of its payment bond for and on behalf of
ACA Iha!! not be affected by this Agreement.
11. The SURETY acknow!edges the actua! assessment of
!iquidated damages by the OBLIGEE prior to date of dec!aration of
default, but the SURETY fu!!y reserves all rights to request any
appropriate extensions of time and/or to (.<,ntest the vaHdity of
any alsessment of !iquidated damages. The SURETY does not waive,
prejudice or in any way adverse!y affect any claim or defense of
any kind or nature that it, as surety or as contractor, might
have against the OBLIGEE. The OBLIGEE wi.! not re!ease any
Contract funds to ACA without written consent of the SURETY.
12. The OBLIGEE represents that portions of work completed
by ACA may not have met the requirements of the Specifications,
drawings and Contract and that the SURETY wi!! be held
responsib!e for the cost(s) associated with the correction of
meeting said requirements that may have been paid for by OBLIGEE
to ACA, inc!uding but not !imited to, incidental work.
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13. The parties hereto, do not intend, by any provision
hereof, to creat, any third party beneficiary rights upon anyone
not a party hereto, nor to confer any benefit, upon or enforceable
rights hereunder or otherwise upon anyone other than the parties
hereto, any luch intent or construction being expressly denied.
For example, the partie. acknowled~e that nothing contained
herein Ihall be deemed to extend or increa.e the rights of any
claimant al defined in the bonds, or either of them.
14. The SURETY expre.sly reserves all prior rights,
equitable liens and rights to subrogation that would be the
OBLIGEE's, the Laborers', or Materialmen's or Adam, County
Asphalt'. under the Contract or at law or equity, as well as its
own rights dating back to the execution of the performance and
payment bonds, including but not limited to those rights and
remedies that may accrue during . >,e completion of the Contract.
No waiver of such rights is agreed to or implied or intended
regardle.. of any provisions of this Construction Contract
Takeover Agreement to the contrary.
,15. The OBLIGEE expressly reserves all prior rights,
equitable liens and rights to subrogation that would be the
SURETY's, the Laborers', or Materialmen's or Adams County
Asphalt's ul\der the Contract or at law or equity, as weU as its
own rights dating back to the execution of the performance and
payment bonds, including but not limited to those rights and
remedies that may accrue durinq the completion of the
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Cg....o.... .~,.. 01' .........."......
01... ,....., O. '........0.'..'.0..
............... .......,'..."....... 1'110
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Octcbu 13, 1993
Cumblrland County
S.R. 0081, Section R12
Fed. Proj. No. 044-0111-079
Contract No. 082071
Bond No. 10-61-59
.
National Union Fir. In.urancI Co.pany
of P1tt.buzgh, 'A.
70 Pine Stu.t
PO Box 1035
New York, NY 10270
An..n'IOH I
Kr. IIomu 11&11'
IoDd Cla1aa Dlvl110D
Gentlemen I
Tnl. l.ttlr i. to notify you, al lurlty, of thl failurl
of your In.urld, Adami County Alph.lt Company, to complete
the work on tbl &boVI rlflrlncld projlct ln accordancl witb
the terma of tbl contract.
Accordingly, thl contractor hi. beln notlfild by letter
of thil lame dAti, and I am now notltyln; your company, a.
lurlty, tbat tbe contractor, Ad... Ccunty Alphalt Company 1.
in dltault aDd you ar. r.qulr.d to complete the contract tor
tb. lubject project, a. w.ll a. to othervl.. .av. and k..p
baml... the COIIICInwlalth trOll any and all 10.... incurre4
ln campl.tlng tb. contract In accordanc. wlth thl tlrma and
con41tiou of your cOIDPany' I lurny banda.
Tbla 11 an oftic1al notlc. of d.fault and your offlclal
notlc. to cQlplete the contract and of your comPAnY'.
11ability tor &DY 10.... incurr.d in completion of tbe
contr.ct tor tbe proj.ct und.r tbl t.rma of your company'.
obligationl.
A copy of tbe p.rformAnc. band exlcuted by your
rlpr...ntat1vl, Harry R. John.on, Attorn.y-in-ract, 1s
Inclo..d for your immediate reflrenc..
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Ad&llll County .upbdt. COIIIpany
P.;. 2
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.l...e .dviae UI immedi.tely of the individU&~ you
deligD&t. to bave cOlllpl.te authority to lpaak for and bind
the ~urety in all m&t~.r. r.latin; to the completion of tbe
contract and to wboaa all noticII, orderl, directiona, and
d.t.rain.tionl relative to tbe project may be ;lven. Direct
all inquire. and correapon4ence relatin; to tbil default
action to Mr. Robert M. Pada, '.1., Divllion Cbief, Contract
KaDa;ement Divilion, Bureau of Conltruction and Material.,
Room l2l2, TrADIportation and Safety Building, Bard.burg,
'ennlylv&Di. 17120. Mr. '.da'. t.lepbone number i. (717)
717-7194.
Sincerely,
u~_
:5:" 1"'" ~
Deputy Secretary for Tranaportacion
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11(3~(!tC!)~ ~lD~Q
Fa., 12151375-9501
Tnlfflc Electricel & Lighting Co.. Inc. .
22300 Nonh Fifth Slrllel
Re.ding, Pa. 1 9605
March 30, 1994
RECEIVED
MAR 3 1 1994
cOtoOSTRlIC':' ,0.; ~!J T
DISTRICT fI-O
H.""'RlSiUAG. ,.A
COlllllonv.alth at PeMsylvania
Dlpartlllent ot Transportation
F.nqineering District 8-0
2140 Herr Street
Harrisburg, PA 17103-1699
Attn: Barry G. HC1tfman, P.E.
District Engin_er
RE: CUlIIberland county
S.R. 0074-005 and S.R. 0174-004
Contract No. 082146
hJA-'T'L -:,
A.~pr~" 41\
Dear Mr. Hoffman:
We are in receipt ot your letter dated March 22, 1994 informing
us that the Departlllent teels our quote of $110.00 per linear foot of
2" conduit, bored is extremely high and can not be justified.
The Department is now in the process of awarding our company
the tollowing project:
CUlIIberland County
S.R. 0114-004
Contract No. 082147
Bid Date: January 25, 1994
On this particular project there is 319 linlJar teet of Boring on SR
114, which our linear toot price vas $117.00.
Within the past two years, we have completed various projects
for either private developers or townships in CUmberland County that
required boring under state highways. Generallr speaking, we have
encountered very poor underground conditions, ma nly solid rock, on
these bores.
We teel that based on our past experience with boring in that
area and also that the Department is in the process of awarding us a
project in Cumberland County for a similiar unit price, that our
linear foot price of $110.00 for this project is justifiable.
tii!ii:I M8mbe, of Intemetlonal Municipal Signal ...oeletlon
.
~-
Commonwealth ot Pennsylvania
Department ot Tranlportation
Paql 2
"arch 30, 1994
We look forward to hearinq trom you at {our earli.lt pOII1ble
convenience. If you Iboulc1 bave any quelt onl, pleale ;ive u. .
call.
Very truly yours,
TELCO, INC.
~Cl.II' "_-
Richard A. Bivner
Prea1c1ent
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POWILL, TRACHTIIAN, LOOM, CAJUU.I , 1IOlIMAH, P. C.
BY' C. GRAINGIR 8OIIKAN, ISQUIRI
AT'tOIUlIY J.D. NO. 15706
DAYID W. rRAIICIS, ISQUID
AT'tOIUlIY I.D. NO 5371B
MICHAlL W. WINrIILD, ISQUIRI
AT'tOIUlIY I.D. NO. 726BO
114 NORTH SICOND STRlIT
HARRISBURG, PA 17101
(717) 23B-9300
ATTOIUlIlYS FOR PLAINTIrr
KEE-TA QUAY CONSTRUCTION,
Plaintiff
.
.
IN THB COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
v.
: Civil Action - At Law
NO. 96-2890
NATIONAL UNION FIRE INSURANCE
COMPANY
Defendant
PRABCIPB TO DIBCOHTlHUB WITH PRBJUDIC.
TO THE PROTHONOTARY:
Upon authority of the Plaintiff Kee-ta Quay Construction,
kindly dismils the above action with prejUdice.
Datel Jun. 28, 1996
By
CERTIFICATE OF SERVICE
AND NOW, on June 28, 1996, I hereby oertify that I hay.
lerved a true and correct copy of the within Pr~ecipe to
Diloontinu. with Prejudice upon the followinq perlon(l) by
reqular first class United statel mail, postaq. prepaid.
Barry Kronthal, Esq.
Reynolds , Havas
101 Pine street
P.O. Box 932
Harri8burq, PA 17108-0932
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