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2. As a rcsult of thc eommcncement of thc case, the abovc-entitlcd and numbered
cause is staycd pursuant to II U.S.C. ~362(a).
ARCHER & GREINER, P.C.
Attorneys for Dcfendant McLaren/Hart
Environmcntal Enginccring Corporation
One Centcnnial Square
Haddonfield, NJ 08033
By:
-t (I- ,L,L;o'" ,
JOEL SCHNEIDER
Dated: June 15 ' 2000
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MESIROV GELMAN JAFFE CRAMER & JAMIESON
By: Lawrence A. Serlin, Esquire
Allorney Idcntification No. 42898
1735 Markct Street, Suite 3800
Philadelphia, P A 19103-7598
(215) 994-1276/1034
Allorncy for Plaintifi' Wedgcwood
lIil1s Apartmcnt Associales, L.P.
BERGEN MULTIFAMILY II,INC, and
FMP/MLM II, INC.. trading as
WEDGEWOOD HILLS APARTMENT
ASSOCIATES, L.P.,
COURT OF COMMON PLEAS OF
Plaintiff
CUMBERLAND COUNTY,
PENNSYLVANIA
v.
CIVIL ACTION - LAW
McLAREN/HART, INC.,
Defcndant
NO. q 1- 5:i fI &.;J
--
/JV-
COMPLAINT
NOW COMES plainliff, Bcrgcn Multifamily II, Inc. and FMP/MLM II,Inc., trading as
Wcdgewood Hills Apartment Associates, L.P. ("Wedgewood"), by ils attorneys, Mesirov Gelman
Jaffc Cramer & Jamicson, and avers as follows:
PARTIES
I. Plaintiff Wcdgcwood is a limited partnership which owns and operates the
property locatcd at 3250 Wakcficld Road, Harrisburg. Pcnnsylvania 17109 (the "Propcrty").
2.
Delcndanl McLaren/llart, Inc. ("MeLaren/Hart") is a corporation
.
,
organized under thc laws of the Slatc of California with a principal place of business at 11101
I)u~ulll..:nt Nu,US) 11}35.UI
White Roek Road, Rancho Cordova, Culifornia 95670 and doinll busincss within thc
Commonwealth of Pcnnsylvania,
3. At all times rclcvunt hercto, MeLaren/IIurt held itself out as having
specializcd expllrtisc in the perfonnunce of environmental invcstigations, including Phasc
revicws ofrcal property and in lhe prcparation ofrcports pertaining to such investigations.
4, McLaren/llurt has cxpericnce with thc inspcction of properties for the
purpose of providing environmental reports to bc relied upon by prospcctive purchasers.
INVESTIGATIONS PERFORMED BY McLARENIHART
5. Upon informalion and belief, on February 20, 1996. McLarcn/Hart was
retained by GE Capital Scrvices ("GEeS") to perform cnvironmental duc diligcncc on propcrties
comprising the "Kcystonc Multi-Site Portfolio," whieh included thc Propcrty in qucstion.
6. Thc purpose of thc work to bc performed by McLarcn/Hart was to allow
GECS to evaluatc the potcntial environmental liabilities atthc Property.
7. In conncction with its duc diligencc rcvicw, McLarcn/Hart scnt ilS
rcpresentativc, Paul 1. Michaels ("Michaels"), an Associate Environmental Scientist, to the
Propcrty on Fcbruary 27, 1996,10 perform a sitc visit.
8. On March 19, 1996. McLaren/Hart issued a Phase 1 Report for the
Propcrty prepared by Michaels ("1996 Phasc 1 Report") whieh described the findings of the duc
diligcnee invcstigation, including thc sitc inspcction.
2
Dtll;Uml.:l1l Nu. 05.l1935.U I
9. Nowhere in the 19l)6 Phase I Report is il indicated that twelve (12)
undcrground storagc tanks ("USTs") whieh previously serviccd thc sitc with hcating oil wcre still
prcsent atthc Property, nor that indications of the continucd prcscncc of such tanks, such as /ill
ports and vcnt pipes, werc visibly apparcnt at the Property.
10. Ralhcr, the 1996 Phase I Report issued by McLaren/Hart for the Property
slatcs that "therc was no evidencc of USTs (e,g., Ii II or vent pipes) on thc Propcrty." Thc report
furthcr claims that it was rcportcd by Ms. Helen Wilhelm. Property Manager for the site, that
lherc are currently no USTs loeatcd at the Property.
11. Thcrc was no indication in the 1996 Phasc 1 Rcport of any cvidcnee to
suggeslthc conlinuing presenec of USTs atthc property or of a nccd for any further invcstigation
to dctermine whethcr or not any USTs rcmaincd at the Site.
12. Subscquent to thc issuancc of thc 1996 Phasc 1 Rcport, GECS purchascd
thc Propcrty. Thereaftcr, in mi'\-1996, ncgotiations took plaee bclwccn Wcdgewood and GECS
for sale ofthc Propcrty 10 Wcdgewood.
13. In that a Phasc I rcport had only reecntly bccn pcrformcd for thc Property,
Wcdgcwood entcred into a "Reliance Agrcement" with McLarcn/Hart, for good and valuablc
considcration, entitling Wcdgewood to rely on thc 1996 Phasc 1 Rcportto the samc cxtent as thc
person or entity for whom thc rcport had initially becn prcpared. A truc and corrcct copy of thc
Reliancc Agreement is allaehed hereto a~ Exhibil "A."
14. The Reliance Agreement states that the opinions and recommendations
contained in lhc 1996 Phasc ( Rcport submilled to GECS arc "truc and accuratc to thc bcst
J
DucumCnI Nil. lJ~.1 PJJ5.()1
knowledge und helicf of [McLarcn/llurtl buscd on thc standard of carc und skill ordinarily
cxercised hy membcrs of thc profcssion currently prueticing in the samc loeality under similar
conditions:'
15, Thc Relianee Agrccment ulso incorporales by refercnce the tcrms of the
contruct betwccn McLarcn/llart and GECS, Thc agreemcnt between GECS and McLaren/llart
dated June I, 1994. a true und correct copy of which is attached hereto as Exhibit "B,"
incorporales by rcfcrencc thc ugrcement bctwccn Gcneral Elcctric Company ("GE") and
McLarcn/Hart datcd Oetober 31,1993 (thc "GE/McLaren/Hart Agrecment"). A truc and eorrect
copy of the GElMcLaren/llart Agrccment is attachcd hercto as Exhibil "C."
16. Pursuant to Article V(A)(\)(a) of the GE/MeLarcn/llart Agrecmcnt,
McLaren/llart warrants that it will earry out its dutics in a "professional, complete and compliant
munner," McLaren/llart furthcr warrants that "service(s) pcrformed by or delivercd through
Consultant [McLaren/Hart} shall bc in aceordancc with or beyond cqually qualified, compctent
and expcricnecd eonsultants. and shall conform to thc provisions oflhis Agrccmcnt. . . ."
17. In subsection (c) of Articlc V(A)( I) ofthc samc Agrccment, McLaren/Hart
warrants its work to be "frcc from dcfccts in labor and matcriu!."
18. In reliuncc upon the rcprcsentations and statemcnts conlained in the 1996
Phase I Rcport, Wedgewood procecdcd with its purchasc of the Property. Among othcr things,
Wcdgcwood relicd on thc reprcsentations that thcre were no USTs rcmaining atthc Propcrty.
4
Dm:Uln1.:nl Nu. O~3193~.0I
19. In March. 1997, in conncelion wilh financing sought by Wedgcwood from
Freddic Mae. McLaren/Hart was rctaincd by Dorman & Wilson, Ine., aeting on bchalf of thc
potentiallendcr, to again pcrform a Phase [environmental asscssment ofthc Propcrty,
20. On Junc 3. 1997, McLarcn/Hart issucd its updatcd Phase [ Report for the
Propcrty ("1997 Phasc [ Rcport"), whieh was prcpared by Kristen M. Saycrs ("Saycrs"), a Scnior
Associalc Environmental Scicnlisl.
21. In conncction with the [997 Phase I Report, representatives of
McLaren/Hart, Saycrs and Miehaels. performcd a site visit on April 30, 1997,
22. This time. however, in thc course of the site visit, McLaren/Hart's
representatives determincd that, in fact, twelve USTs were still present at the site, the physical
prescnce of whieh was detcrmined from observations of above-ground piping and fill port caps,
which werc obvious and apparent, and which arc connected to the below-ground tanks.
23. Thcse same pipes and till port caps wcre also obvious and apparent at thc
Propcrty at the time of thc site inspection pcrformed by McLarcn/Hart's representative.
Michacls, on February 29, 1996, when he inspected the Propcrty in the eourse of preparing the
1996 Phase I Report. Y ct, therc was no mcntion of thc prescnee of lhc pipes or thc fill port caps.
nor thc potential or actual prcsencc of USTs atthc Property in thc 1996 Rcport.
24. Notwithstanding that no ncw or additional information relative to the
prcscncc of USTs atthc site was provided to McLaren/Hart in conneetion with the site inspection
conductcd on April 30. 1997, upon realizing that further investigalion was warranled from
5
Dm;umcnl Nu.lJ'sJI9J's.OI
obscrving thc numcrous remaining till ports amI vcnt pipes. Mcl.aren/l [art's representalivcs werc
able to ascertain readily lhat USTs wcrc still prescnt utthc Propcrty.
25. Ultimately, it was dctermincd thattwclve USTs. previously uscd to hold
heating oil for lhc residcnlial buildings comprising thc Property and takcn out of scrviec some
time during lhc 1970's, were still present atlhe Property.
26. As a result of this new and difTerent information from what had been
represcnted in thc 1996 Phase [ Report, Wedgewood was requircd for purposes of its loan
application to rctain thc services of an cnvironmental consultant to pcrform furthcr invcstigation
to dcterminc whelher thc USTs had eauscd any contaminalion to thc Propcrty. as well as
arranging for the removal and propcr closure of thc USTs. Additional environmental
investigation and/or rcmediation expensc may be incurred in the fulurc as work at the Propcrty
progresses.
27. Wcdgewood also has incurrcd legal fees and administrativc staff cxpenses
in connection with issucs raised by the presencc of the USTs at the Property.
28. Furthcr, conccrns raised by the unanticipatcd presencc of USTs at the
Propcrty caused Wcdgewood to bc delayed in locking in a more favorable intercst rate for its
loan, rcsulting in additional loss.
6
DO'Um'"1 Nu_ liB I ~3'_1I I
COUNT I - DREACII OF CONTRACT
29. Thc allcgations contained in thc forcgoing paragraphs arc incorpomtcd
hcrcin by rcfcrenec.
30. By entcring into thc Rcliancc Agrccmcnt, McLarcn/Hart undcrtook to
providc to Wcdgcwood a true and accuratc Phasc 1 Rcport regarding the environmental
conditions atthc Property, in accordance with thc standard of carc and skill ordinarily cxercised
by membcrs of its profcssion currcntly practicing in the samc locality undcr similar conditions.
31. McLarcn/Hart also acknowledged that Wcdgewood was cntitlcd to rely on
the 1996 Phasc 1 Report to thc samc cxtent as and pursuant 10 the agrcements cntercd into
betwcen McLarcn/Hart with GECS. and, by inferenee, thc agrcemcnt bctwccn McLarcn/Hart and
GE.
32, McLarcn/Hart warranted its work to bc frcc from defccts in labor and
matcrials and agrced to promptly correct at its sole cost and cxpcnsc any damagc or loss resulting
from warranty non-conformance or dcfect.
33. McLaren/Hart also agrced to indcmnify, savc, dcfend, and hold harmless
for any damagcs to property or losscs, liabililics, eosts, cxpcnscs and detrimcnts of cvcry naturc
and dcseription (including without limitation, rcasonable attorncys' fccs) arising by reason of any
ncgligcnt act or omission by McLaren/Hart or ils oflieers, cmployccs and agents in conncction
with its serviecs provided undcr thc agrecments.
7
I>m;ul11cnt NI), 1I5JllJH.1I1
34. Wedgcwood has prcscnted its dUll1uge claims to Mel.urenlllurt, which has
failed and rcfused to fullill its obligations undcr thc Reliun';e Agrccment.
35, McLarcnlHart has brcached its contraet with Wcdgcwood by:
a. failing to perform thc work in accordancc with thc conlracts,
includinll any standards, specifications, warranties or guarantccs contained or implied therein;
b. failing to comply wilh all requirements and obligations of the
conlracts;
c, failing to adequately and propcrly perform a Phase I cnvironmental
invcstigation of the Property;
d. failing to idcntify the prcscncc of opcn and obvious piping and fill
port caps associated with underground storage tanks;
e. failing to adcqualcly investigale the potcntial that underground
storage tanks wcre still prcscnt atthc Property;
f. failing to comply with thc standard of carc and skill ordinarily
exercised by membcrs of its profcssion currently practicing in thc samc locality undcr similar
conditions;
g. failing to indcmnify, savc and hold hamllcss Wedgcwood for and
from all damages, losscs, liabilitics, cosls, cxpcnses and other detrimcnts arising by rcason of thc
ncgligcnt acts and/or omissions by MeLarenlHarl and its representatives; and
I
,
.
8
Du.urn.nl Nu. OS3193S,Ol
h. failing to excrcise due carc and eaulion undcr thc circumstances.
36. McLaren/Hall's conduct constilutes a material brcaeh of its conlract wilh
Wcdgcwood.
37, As a rcsult of the brcach of conlruet by McLaren/Hart, Wcdgewood has
incurred and will continuc 10 incur eosts and damages in eonncction with thc following:
a. Investigation of soil and/or groundwatcr in the areas ofthc USTs;
b. Costs and expcnses in conncction with thc rcmoval and disposal of
USTs at the Propcrty;
c. Remediation of contamination, if any, associated with the USTs
and tcsting ,onductcd upon removal;
d. Pcrsonncl costs and additional payments to third parties associatcd
with the> evaluation ofissues related to lhc investigalion and rcmcdiation of the USTs; and
c. Attorncys' fccs incurrcd as a consequence of the breaches by
McLaren/Hart.
WHEREFORE, Wcdgewood Hills Associatcs, L.P., requcsts that judgment be
entcred in its favor and against defendant, McLaren/Hart, Inc., for monctary damagcs and for past
costs and losses in an amounl in cxeess of$25.000. along with dcclaratory rc1icfrcquiringpayment
of all reasonablc futurc costs, expcnses, damagcs and losses relatcd 10 the claim, togcther with
attorneys' fecs, and sucr. othcr and further rcliefas thc Court may decm appropriate.
9
Du,umi:nt No. OS319J5.01
COUNT II. NEGLIGENCE
38.
The allegations contained in thc forcgoing paragraphs are incorporated
I,
hcrein by rcfcrence.
I
10:
,
39.
In undertaking to perform a Phasc 1 investigation of the Property in 1996,
and in subsequcntly reprcscnting to Wedgewood that its 1996 Phase 1 Report was true and
accurate to thc bcst of its knowledgc and belief, McLarcn/Hart owed a duty to Wcdgewood to
conduct itself in all respects in aeeordance with the standard of carc and skill ordinarily excrcised
by members of its profession.
40. In conneetion with thc 1996 Phasc 1 Report, McLarcn/Hart brcached its
duty of earc owcd to Wedgewood by ncgligcntly acting or failing to act in each of the following
respccts:
a. failing to adcquately and properly perform its environmental
invcstigation of thc Property;
b. failing to locate, idcnlify, and rcport the prcscncc of opcn and
obvious piping and lill port caps associatcd wilh USTs;
c. failing to adequately investigatc the potcntialthat USTs wcre still
prescnt at the Propcrty;
d. fuiling to locale, idcntify. and report the prcsence of USTs at the
Propcrty;
10
(JUCUlIlcnl Nu. 033 I'H~.()I
e. tailing to comply with thc standard of carc and skill ordinarily
cxcrcised by membcrs of its profcssion currcntly practicing in thc same loeality under similar
conditions; and
f. failing to cxercisc due carc and caution under the circumstances.
41. As a direct and proximate rcsult of McLaren/Hart's ncgligcnce in
performing thc duties whieh it undcrtook in eonncction with prcparing the 1996 Phase I Rcport,
Wedgewood has incurrcd and will continue to incur costs and damagcs of the typcs sct forth
bclow:
a. Invcstigation of abovc and/or groundwatcr in the areas of the
USTs;
b. Costs and expenses in conncction wilh the removal of USTs althe
Property;
c. Remcdiation of contamination, ifany, associatcd with the USTs;
d, Pcrsonnel costs and additional payments to third parties associatcd
with the evaluation of issucs relatcd to the investigation and remcdiation of the USTs; and
c. Attorneys' fccs incurrcd as a consequence of thc breachcs by
McLaren/Hart.
42. McLarcn/Hart knew or rcasonably should have forescen that Wedgewood
would rely upon thc contcnts of the 1996 Phase I Report to cvalualc the potcntial environmcntal
risks and eosts associated with thc purehasc and opcration of thc Property and would bc damagcd
II
Ducument NI). 05JII).lS.UI
by a failure 10 Illeale, idenlify and rcport the potential cllnlinuing prescncc of USTs at thc
Propcrty.
WHEREFORE. Wcdgcwood Hills Associates, L.P., requcsls that judgment be
cnlercd in its favor and againsl defendanl, McLaren/Hart, Inc., for monctary damagcs and for past
costs and losscs in an amount in cxcess of$25,OOO, along with declaratory rclicfrcquiring payment
of all reasonablc futurc cosls, expenscs, damages and losscs relatcd to the claim, togethcrwith
attorncys' fces, and such olher and furthcr relicfas lhe Court may decm appropriatc.
Rcspcctfully submitted,
~~ O. ~~
Attorncy I.D. No. 42898
Date: Oetobcr 1:., 1997
12
Dueumen! No. ()~J 1935.0 1
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P,2-'O
CORPORATE PURCHASE AGUDfENl' fOil
IIEMEIlIAL DM!'8ItGAnON, IlISJt ABSESSMINT, mASQlLlTY snmiEs
AND/OR ENVIRONMI!.NTAL mtsIGN SERVlC&'J
BY AND aril WY Il:Ul'
GII: CAPITAL ASSJ!:I'MANAGEMENl' CORPOllATlON
AND
Mr' "'UNIRART ENVIRONMENTAL ENGlNEEIUNG COJU'ORAUON
,
.-
l~'lMl-]~Y 6, -1994 9:41_ .~ 'r~ '715 t116'~' -. P.9~
JU. eG . 94 II : 46R'1 GE C_ITfL
P.3-'9
COJl.POIlA11t PURCIIASE AGRF..FMENr FO.1l
REMEDIAL INVFSTIGATlON, RlSIC ~.1EASlB1U1Y mJDlF.S
AND/OR I!m'IRONMENI'KL DFSIGN SERVlcq
TIIJS AGRm!MBNT effcdtve u of the Lu day at JWIlI 1994. by IIId bcts...... GE
CAPITAL ASSEI' MANAGEMENT CORl'ORAnoN ("<JECAM"), a _po..1Io11 IlIV"WoI
WIll<< die laM of die ~ of Delaware md lIIIlDdltea ,1Ihlitfiory of General PWtrII! OlqwIJ,
wlIh. ~ place of~'$;<n. at 2001 Nonb BeIuregml, SUiI.o UOO. ,4~oia. VJrsiala
22311 aDd It 2000 Welt Loop SOUIh, SuiIIll300, 1IowIon, Tcua 71OTI, and McLAlUlNlHAR.T
BNVlRONME'NTAL ENGINEl!RING CORPORATION. a Culpoo~ orp"r~ I1IIder lho Ia1vI
of die Stare at CallConlla 'Irith . principal pW:a of bwinesJ It mOl WhilD Rock Road~Rm:bo
Cordova, c.nronua 9S67O ("Consultant").
WHEREAS CODlUlunt Iw eoleted i.ntD the Corpona Putth.ua A&rccment till'
J<l'nV<!11II IavcIti&Mlon. RIsk As3essment. PeuibIIltJ Sl1Idles lQIJoc Envlronalema1 DeIIp
Serrices ("GE ~") wI1h General EJearic Company on behalf of all of lis 1ftImIu.
lUbIidlmes IDd ;ajI..."j..... comp;miQ ("em"). cll'ecliYO u of Octolvr 31, 1993;
WHEREAS GECAM may from lime to limIl dllIiro to rdaIn 0lNu1tlmt to
pcrimD JlCOfeuioaal envinlnmcnla1lnvemgallon, rilk i!_u......n.t. fca.s.lbllily 1IudJca, ranodiaI
cklip ICnioeIllld/or cmenl ClIYironmenta1 COllSultin& lCC'filX.l 0II1bc 1l:mJa IIIld COIIditiolIIII'.It
fol1h ill Ibe em A&i~;
WHEREAS GECAM and ConlUltant desire to bos bound by the em A.coo......a.l II
mndi&,f to die eneoc let fonh boslow;
NOW. 11IEREfORE. GECAM and Consulwlt, iutendlnt to be Iqllly bound. do
ba1!by a&rcc u fulIowa:
1. AErrou<f1l f.o Be Round by the GE AvmemeJlt. Subject only Co CIIc
movIifioo2M'IS apreSIIJ let fooh ID Iedion 2. below. GECAM and Conlll~ sc= to 110 bound
bJ die IenIU of Ibe em ~. PI'CTfIded !hat rtf=nces to GE ID lbe GB ~ sIJaIJ be
IIll&:ntood ID _ GECAM. A copy of the GE A&t=Ill:IK i& oot"""""l bea(o u I!JhIbIc A mil
a......"".A4 bJ rcfi:rtucc bc:reio for all pu.rpo&eI. 11Ie GB A&n:emelIC u modl(iM betIciD IIWI
be refma1to u \be "CiECAM Acreement. "
2. LlmiWI ModifiC8lioll! \0 GE A=ement. The parties aaree lD illlowinc
limiIed mnd;~ to the GE ACRCI.1Cl1t:
2,1 ~. Every refereN:c In the GE A&a....u~ to Gcuenl EIeclric
Coo.""".)' or em, u dellned Ihen:\n, WIt mean GECAM; r;vay reCCf'CIIa: lD CoaaullInt
IIWIIIlClIII CoDlUltint.
""_\~\OOt
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l\lC'IkM.dey July.6. 1994 9:47~_ .""~IS-;~~.:- P.g..~
JU.. 06'94 1I:47rV1 a: O"'IT~
P.4-'ll
l'.cm1. Tho GIlCAM ~ IbsU be etrcaiww II of 1_1,
1994, aDd cvuy refa'eooc inlbe GE A&rc>cmmc ID lbo cffcci1W1 cbIo II of Qcfnbcr 31,
tm. 1bII_ II of lunc I, 1994,
2.2 GECAM', (".......ttv. CousuItanll'OQOpba tIuI GECAM _ II
Ierriciuc qcat tilt IIllIrt&sge Io.1na dIIt may be Owned by GECAM DC by tbmI parties.
2.2.1 In aueuln& cooIllCll of iolcrat purstUIlr lD JeCIba V.B.7
of Ibc GE Auot""'.... ~..'1taal1CJ'llel1O discloIe my actua.I 01" poce.aIiaI
c.oafJldl of iuteI'Ul 'Nidi ~ Co !be holdu of I IoaIlIen'Iced by GECAM.
AIry CIDlIfIicu of lDI.ercst with IIlCh a bolder IIWI be ""--t 10 be . canlller of
iaIIna wid1 GECAM.
2,2.2 The GECAM A&reemcllt IhaII be iDIc.",dtd to require
COOl"""'" 10 act in 1be best iolcreJt DC ilr lbc benelll of GECAM mIIoc the
bolder of Ihe applicable loan wbe4 requlred WIder lbo GB ~ ID sa ID Ibo
bQt iDleml or for Ibe benefit of GECAM.
2.3 Health and Safetx. Ths lint IeIUlII:lI of aeaioa V.B.3 of 1he GI!
~Il ahaU be replacrd wid\1IIc followln,:
ConsuIwIt shall immcdiaIdy briD& Ii) Ihe ........1"" of GB and GECAM mr
CXlIIditioa ~--;"C \be beaId1 and &a&ty of (I) My employee 01" scent of
enn.......... or OECAM, (u) of ID1 empJoyee or a&a1I: of my ~
~. COl~-*Ir DC lob<:onlnl:Iur of either of 1bctn, (ili) of any bu..u...... or
employee at ~em of any bortoowc, wiIb re.tpeCllD IlrJ IoIa senicaI or 10 be
acnlad or now ex bertloCore 0WIICd at Co be 0WDCd by GECAM, (Iv) of II'lJ
boldct. or employee or ",em of any holdcr, of any 10m seniocd or liD be &c:rTIa:d
or IIOW or ba'r:IOfotc owned Of to be 0WIII'ld by GECAM, IX (v) of my """""-r of
tbc penI plblic.
2.4 Reauired Inro,ance. To d1c Q1ml dut Coasullam >Minto;.".
F4.;"UUUE&1t1I1a1painIwJt mIIor PoUutioD Liability insuranI:e II required IIId appco....d
by GI! pvtS\Ild Co section VI.A.7 of the GE! Acreemcm. Con5ultaDt will hue co~Ued
wiIh d1c OECAM AgreemeDl. '
2.5 Evidence of In....rance. To Ibe a~ lIut Inaurancc n:quIred by
lbll (lE ~ sbaII be IaIlsfaaory Ii) GE and Ih.a1 CoNu.ItaDl providc& tbe RqUlred
iIIIIur.uIa: catificareI in a llmely IlWIIJU tAl em, all as required by sedion VI. B of die OB
A&-mcnt. Coouultaot wiIJ h:ne complied willi section VI.B Ibe GECAM Apeemcot.
._IlKll'K\OOl
2
~
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.-
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JU. ffi '94 11'4al1 G( a,'lTl\..
--
P.~
wiIb a copy 10:
Batbara B, Mad'luUl. EIq,
GEIJUlCO
Ollc R1ftt RDId 31i13E
Sdlll~, N/l'II York 123-6
Telealpy: (518) 38H64~
Foe Consultant:
SIqIhe4 J. Myen, CI!P
McLan:nIIbn EllYirnn"'C'llal
&,:iDeerlDJ Cofpotl\iou
21 Msdlsoo ^_ Eat.
AJbany, New York 12203
2.11 Rele.... of Lie no , 1bc flDt senleDce of ICCtioIl XU.X: II1IIJ be
IlIpbccd with the foUowlllg;
CooauItanllhaIlllQC file my 1ie4 01' CIICUIIIbnIIcc attrlbulabltllO my Work:
pedolmed IIIldec l!1c CECAM ~ 8lJ/JJoc aDy Work R.eIeaso Jsaued
henwdcr, IIpOlI lIlY property IIOW or bemolixe oomed or 10 be 0WIICd by
GECAM 01' IIpOlIIIIIY property M11d1 _ II oolbWal Cor Ioms ICI"ricod at CO
be Ienlced by GECAM or IS co1larecal flll' ~ now or bemofure D'MlCd or 10
be IJWIIOld by GECAM, /lllI' shall Consultant IlIffec any 01 lis 1Ubcomu1anls.
1Ubamtra.cIon, lIldIor Yendors 10 file any IUd1 lien or ~
2.12 COnlnd Ilenefit ""chant'". Sectiou XU.M ahaJI be replaced wilh
Ibo~;
n..-..... GE and GECAM have exJstiq .....A:l-.l.l witb Ill3Ily Jenico aod
c...wa>dity parIOtn and '-'1use lUbsQIIlial cost bencfitJ to Ga, GECAM Iud
<,,,,,...11_ IRI}' be adtlcV3blc: by Coa.!,dllmt'l lIIillrorinn of IUcb COllltl<:l
alenJlom, ConsuIt3ot I&nClIo 1denciC}' ~ for IW!tri'l& QlIU by
mll~ belIefllS IVIibble Cram aislInI GE CXIIll(acb IIId CurtbI:r to UIO but .
eft'0fU In obtaining Iud! colt beoeftta MI'll available aod feasible. If oost uvlIIgs
II1l adJlcwed IS I resuk oflhls bcu etlbru COIIlraa beucfit excIIaII:t:, CooauIIaut
md GECAM :wce 1h31 my cost savln,ta reaIlDld will be &hated equally by GE
and GECAM with CoIuuJtanlln a rnanru &l'CepttbJe to GE. GF.cAM and
Colo..,It""l, SimilarJy, Conrulbnt agrees ID -n: wiIb GE and GECAM to
Identify oppor1UnitieJ (or reducloll elIvirolllllelllll aenicea' com of ~
SUJlIllicn in ochcI' commoclily/=vice areas utlliziog .........ed beneflCl of Ihl..
001IIna..
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4
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2.13 Exhiblls. Exhibit.s B and D shaJJ be modified to rcflect OECAM IS
Ihc purclwcr beforc Ihey arc used. Exhibit C shall tontlnuc 10 rcfcr 10 the base rate as
Ihc maximum rltCs charged 10 any OJ! affiliate or rcla1ed tompany. By way of
explanation, if lower rates arc negotiated or provided 10 any OE cntity, Ihc OECAM
aarecmcnt will be IUlomalically IltlCnded such Ihat Ihc lower raleS bctomc the bue raleS
hcrcin.
3. Incornoralion of OE A2Tumcnl. 1lIc OE Agreement Is incorporated
hcrcin by rcfcrcnce as if fully rcstated hercin, subject 10 Ihc provisioN of section 2, abovc.
4. Multiole Counteryarts. This agreement may be cxecuted in multlplc
counterparts, cach of which taken IOgclher shall constiwte Ihe original agreement.
IN WITNESS WHEREOF, Ihe parties hcrclO havc made and entered inlo,lhe
GECAM Agreement as of the day and year lirst above written.
GE CAPITAL ASSET MANAGEMENT
CORPORATION
By:
McLARENIHART ENVIRONMENTAL
ENGlNEERiRl'ORATION
By: IA,4 OJ ..
ICHARD W. CATON
DIRECTOR OF CONTRACTS
John M. Olurch
Tillc: Senior Vice President
Title:
t{ /,,/1'1
THE FOREGOING GECAM AGREEMENT IS
APPROVED IN FORM AND SUBSTANCE BY:
GENERAL ELECTRIC COMPANY
By:
~ i3 11-11..-1.
Barbara B. MacPhail
TItle: GElRECO Project Manager.contracts
JSI\OOZ4\042791\OOI
s
"
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2.13 ErlIibils. ErlIibiu B and D shall be modified to reflect OECAM as
the purcha$Cl' before lIIey are used. Exhibit C shall continue to refer to the bue rale as
the maximum raICS charged to any GE affiliate or Telated company. By way of
explanation, if lower rates are negotiated or provided to any GE entily, the GECAM
screement will be aUlOmatically amended such lIIat lIIe lower rates become the bue ra1CS
herein,
3. Incorooralion of GE A2r...menr. The GE Agreement is incorporated
herein by reference as if fully restated herein, subject to lIIe provisions of section 2. above.
4. Mulliole Counlerosns. This agreement may be executed in multiple
counterparu, each of which ulcen IOgelller shall constitute the original agreement.
IN WITNESS WHEREOF, the panics hereto have made and entered IRIO the
GECAM Agreement as of lIIe day and year first above written. -
McLARENIHART ENVIRONMENTAL
ENGlN CORPORATION
By:
Tille: Senior Vice President
Title:
rz/fD/qy
THE FOREGOING GECAM AGREEMENT IS
APPROVED IN FORM AND SUBSTANCE BY:
GENERAL ELECTRIC COMPANY
By:
Barbara B. MacPhail
TlUe: OEIRECO Project Manager-Contracts
JSl\OOZ4\04Z194\OOI
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JU.. Il& '94 1l:4~ a: c.,-ITA..
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EXJDBIT /I.
THE GE AGREEMENr
~
rtl6~~
.-
OR\G\NAL
CORPORATE PURCHASE AGREEMENT FOR
REMEDIAL INVESTIGATION. RISK ASSESSMENT. FEASIBILITY STUDIES
AND/OR ENVIRONMENTAL DESIGN SERVICES
BY AND BETWEEN
GENERAL ELECTRIC COMPANY
aIm
McLAREN/HART ENVIRONMENTAL ENGINEERING CORPORATION
Effective October 31, 1993
CPA No. 1392
ARTICLE I - SERVICES
A. ScoDe ..
B. Re1ease(sl
C. Chanaes
ARTICLE
II -
A.
B.
ARTICLE III -
A.
B.
C.
ARTICLE IV -
A.
B.
C.
,.
TABLE OF CONTENTS
. . . .
.
. . . .
.
of Work
. . . .
. .
TERM; PERIOD OF PERFORMANCE
~..,......
Period of Performance
COMPENSATION
~ ....
Full Compensation
Compensation for Chanaes
.
INVOICING AND PAYMENT
Reimbursement
Invoicina . . . . .
Invoicina for Chanaes
ARTICLE V - LEGAL RESPONSIBILITY; STANDARD OF PERFORMANCE
A. Standard of Perf~rmance: Warranties
B. Consultant Responsibi1itv
C. Indemnitv......
D. Conseauentia1 Damaaes
.
ARTICLE
VI -
A.
B.
C.
D.
ARTICLE
VII -
A.
B.
C.
INSURANCE AND BONDS
Reauired Insurance
Evidence of Insurance
Bonds . . . . .
Consultant's Liabilitv
TERMINATION; CANCELLATION
GE's Termination for Convenience
GE's Cancellation for Cause
Consul tant' s Termination , . . .
ARTICLE VIII - PATENTS; OWNERSHIP OF PLANS; DATA RIGHTS
A. Use or Desianation of Patented Products or
Processes , . . .
B. Ownership of Plans . .
ARTICLE
IX -
A.
B.
C.
CONFIDENTIALITY .. . .
Confidential Treatment
No Communication
No Publication
ARTICLE X - RECORDS; AUDITS
ARTICLE XI - KEY PERSONNEL
ARTICLE XII - MISCELLANEOUS
.
2
2
3
3
4
4
4
4
4
7
7
8
8
8
9
9
9
10
14
15
15
15
16
16
16
17
17
17
18
18
18
18
i,
18
19
19
19
19
20
20
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
M.
N.
EXHIBITS
A.
B.
C.
D.
E.
F.
"
Applicable Law . . . . . . . . . . . 20
Aqreement Administration . . . . . . 20
Document Retention Reauirements 20
Successors and Assiqns: Subcontracts 2J
Set Off . . . . . . . 2J
Independent Contractor 2J
Survival . . . 24
Nonwaiver . . . . 24
Notices . . . . 24
No Anci11arv Aqreements: No Third partv
Beneficiaries. 24
Release of Liens . . . . . 24
Complete Aqreement . . . . 25
Severability . . . . . . . 25
Contract Benefit Exchanqe 26
,
1;
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Scope of Services
Change Notice
Category Rates for Consultant's Billable Personnel
and Other Changes
Sample Invoice
Equipment Rental, Miscellaneous Material
Evaluation Criteria
,-
CORPOR.".TE PURCIIASE AGREEMENT FOR
REMEDIAL INVESTIGATION. RISK ASSESSMENT. FEASIBILITY STUDIES
AND/OR ENVIRONMENTAL DESIGN SERVICES
THIS AGREEMENT effective the 31st day of October, 1993, by and
between GENERAL ELECTRIC COMPANY, (including all of its affiliates,
subsidiaries and associated companies) a corporation organized
under the laws of the State of New York, with a principal place of
business at 3135 Easton Turnpike, Fairfield, Connecticut 06431
(hereinafter referred to as "GE"), and McLAREN/HART ENVIRONMENTAL
ENGINEERING CORPORATION, a corporation organized under the laws of
the State of California with a principal place of business at 11101
White Rock Road, Rancho Cordova, California 95670, (hereinafter
referred to as "ConSUltant").
WHEREAS, GE may from time to time desire to. retain a
consultant to perform professional environmental investigation,
risk assessment, feasibility studies, remedial design services
and/or general environmental consulting services, (hereinafter
referred to a "Service(s)" or "Work") in connection with projects
related to GEls past, present, or anticipated operations,
facilities, and/or property (hereinafter referred to as
"Project(s)");
WHEREAS, Consultant represents and covenants that it has the
requisite personnel, competence and skill, and physical resources
necessary to perform Services in response to GEts requirements; and
WHEREAS, Consultant intends and will strive to consistently
perform/deliver services to GE that offer the best in quality,
technical expertise, regulatory expertise, reliability, creativity,
customer service, and cost effectiveness (in design and approach);
said services to be to be of lowest cost to GE taking into account
factors such as administrative costs, fe)s, direct costs, overhead,
regulatory requirements and other items of relevance. As such, the
parties agree that it is the intent of this Agreement that the most
cost effective and highest quality approach will be the goal of
services provided hereunder the first time and every time; and
WHEREAS, GE and Consultant wish to enter into an agreement
under which Consultant may perform from time to time service(s) in
response to GEts requirements in exchange for such consideration
and on such terms and conditions as may be set forth hereinbelow;
NOW, THEREFORE, GE and Consultant, intending to be legally
bound, do hereby agree as follows:
ARTICLE I - SERVICES
A. Scope
Service(s) to be performed by Consultant pursuant to this
Agreement include remedial investigation, risk assessment,
"
feasibility studies, environmental design services and/or general
environmental conSUlting services as more fully set forth in
Exhibit "A", attached hereto and incorporated herein, and Work
Release(s) to be issued hereunder.
B. Releaselsl of Work
~
~
,
i
I
I
;
i
,
I
From time to time, GE may identify one or more Project(s) in
connection with which GE may desire performance of Service(s). In
any such case, if and as requested by GE, Consultant upon
acceptance of such request will prepare and submit its proposal for
performance of such Service(s) for GE's review. Such a request for
proposal may be on a competitive basis or on a sole or single
source basis, at GE's sole option. GE may at any time after a
mutual agreemen~ as to scope, schedule and pricing, in its sole
discretion, issue a Work Release on GE's Purchase order/Service
Order form authorizing Consultant to perform Work as ,described
therein and incorporating this Agreement by reference.- No work
shall commence until a mutual agreement is reached regarding scope,
schedule and price. Subj ect to mutual agreement of GE and
Consultant and to the provisions of Article V.B.7 regarding
Conflicts of Interest, Consultant shall immediately proceed to
perform Service(s) in accordance with any such Work Release and all
terms and conditions of this Agreement, except to the extent the
Work Release expressly stipulates otherwise.
C. Chanqes
GE must approve or direct by issuance of a Change
Order/Purchase Order any changes in the Service(s) to be performed
by Consultant pursuant to this Agreement and/or any Work Release(s)
issued hereunder which impact per task costs causing per task
overruns. If either party hereto desires a change, Consultant
shall, if and as requested by GE, prepare a proposed Change Notice
for GE's review in SUbstantially the form attached hereto and
incorporated as Exhibit "B", Thereafter, GE's approval of any such
Change Notice or GE's issuance of its Purchase order/Change Order
shall be Consultant's authorization to proceed, and Consultant
shall immediately proceed with the Work in accordance with. this
Agreement and any applicable Work Release, as so amended. In lieu
of the foregoing procedure, and at the GE's sole discretion, GE may
elect to direct a change by issuing a Purchase Order/Change Order
or a Change Notice documenting a directed change which shall be
Consultant's authorization to proceed, and Consultant shall
immediately proceed with the Work in accordance with this Agreement
and any applicable Work Release, as so amended. Any Change Notice
or Purchase Order/Change Order approved or issued by GE shall
contain a beief description of any added, deleted, and/or modified
Service(s) . Any Change Notice or Purchase order/Change Order
documenting an approved change shall set forth cost and schedule
impacts, if and as applicable, under any affected Work Release; any
Change Notice or Purchase Order/Change Order documenting a directed
)
"
change shall be subject to an equitable adjustment, if and as
applicable, reflecting cost and schedule impacts which the parties
hereto shall agree upon prior to final payment under any affected
Work Release.
ARTICLE II - TERM: PERIOD OF PERFORMANCE
A. ImJn
Unless terminated or cancelled pursuant to Article VII (GE's
Termination for Convenience/GE's Cancellation for
cause/Consultant's Termination) hereof, this Agreement shall be
effective as of October 31, 1993, and shall be deemed to otherwise
automatically renew itself indefinitely without further action by
either party. Consultant agrees that the discounted base rates (as
per Exhibit C) and equipment and other material charges (as per
Exhibit E) shall be the maximum rates and charges to GE pursuant to
this Agreement and these rates and charges shall be valid for at
least a two (2) year period beginning as of the effective date
above set forth in this Article II(A).
B. Period of Performance
In the event of the expiration of this Agreement pursuant to
Section "A" of this Article II, Consultant shall complete its
performance of any Work Release(s) then pending in accordance with
all specifications, terms, and conditions of such Work Release(s)
and all terms, conditions, and requirements of this Agreement. In
any such case, the specifications, terms and conditions of such
Work Release(s), and the terms, conditions, and requirements of
this Agreement, shall be deemed to have survived expiration,
termination, and/or cancellation of this Agreement with respect to
such pending Work Re1ease(s) as though no expiration of this
Agreement had taken place.
ARTICLE III - COMPENSATION
A. Fee
Subject to the limitations set forth in Section "B" of this
Article, for performance of Service(s) under any Work Release(s)
issued pursuant to Article I of this Agreement, GE agrees to pay
Consultant a fee (hereinafter referred to as "Fee"), equivalent to:
1. Compensation to Consultant for its performance
calculated by mUltiplying the Category Rates for Consultant's
Billable Personnel, attached hereto and incorporated herein as
Exhibit "C", by the number of hours spent by Consultant's Billable
Personnel directly performing Service(s) under any applicable Work
Release(s) issued hereunder, provided that the sum(s) so calculated
shall be deemed to compensate Consultant fully and finally for all
4
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of its direct and indirect labor costs, overhead charges, general
and administrative expenses, and profits, including but not limited
to the following:
a. Charges associated with time of
any and all of Consultant's
executive, marketing, legal,
financial, accounting, billing,
clerical, typing, stenographic,
secretarial, and unbillable and
unapplied management and non-
management personnel and functions;
V
I
~
I
I
b. home and branch office costs
including but not limited to space,
heat, light, water, local telephone
and access charges, incoming
facsimiles, in house personal and
desk top com~uters, word processing,
and all CADD services (hardware,
software and operator), other
utilities, and office supplies and
equipment;
c. costs associated with social
security, unemployment, real and
personal property, and income taxes:
d. sick leave, vacation, and
holiday allowances;
e. Workers I Compensation, property
and casualty, professional liability
(errors and omissions), and other
insutOance costs as required in
Article VI; and
f. any and all other out-of-pocket
charges, costs, and expenses
(including OSHA required training and
medical monitoring), except as
specifically set forth below in
Subsection 2 of Article III, Section
A.
2. The direct cost, without adders and/or markups of any
kind (with the exception of subcontracted drilling services as per
Paragraph (i) below), of reasonable, necessary, and proper out-of-
pocket expenses actually incurred in connection with performance by
Consultant of Service(s) authorized by GE pursuant to Article I
hereof including and limited to the following:
5
.'
a. Reasonable travel (coach on
airlines) and living expenses on
trips made with GE's prior written
approval (personal automobile
reimbursement to be limited to and
consistent with current IRS rate of
28(: per mile but automatically
modified as per IRS publications);
b. reproduction expenses connected
with preparation of sets of reports,
calculations, drawings, bills o.~
material, and/or specifications
(xerox copies not to be reimbursed by
more than 5(: per standard (11" x 17"
or smaller) copy);
c. fees paid to outside
consultants, laboratories (only GE
approved laboratories may be
utilized), and/or vendors furnishing
services or materials, engaged by the
Consultant, with GE's prior approval,
to assist the Consultant in
performing any of the Service(s)
called for under this Agreement and
if directly for use in connection
with this Agreement or any Work
Release;
d. premium portion of an'y overtime
paid, provided said overtime was
worked at GE's request and with its
prior approval;
e. long distance telephone charges
reimbursed at cost provided costs are
tracked by Consultant and verifiable
by means of GE's audit (otherwise
included in Paragraph 1 (b) above);
facsimile transmissions to be
reimbursed at no more than 50C;: per
page for outgoing transmissions (no
reimbursement for incoming
transmissions) ; postal and other
carrier charges reimbursed at cost
provided costs are tracked by
Consultant and verifiable by means of
GE's audit (otherwise included in
Paragraph l(b) above);
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f. equipment rental (as per
Exhibit E), outside printing charges,
outside computer charges and expenses
and miscellaneous materials
reimbursed at cost as per Exhibit E
attached and incorporated by
reference hereto; in house/personal
computers, word processing and all
CADD services (hardware, software and
operator) included in Paragraph lIb)
above;
g. permi ts, licenses (other than
professional licenses), and other
specific fees required for GE
specific Project(s) only and paid by
Consultant;
h. premiums applicable to any
additional insurance required by GE
pursuant to Subsection 7 of section
"A", or "bonds" required under
Section "C" of Article VI, as
applicable, in connection with any
Work Release(s) issued hereunder; and
i.
will
plus
subcontracted drilling services
be compensated at a rate of cost
a 5% adder.
B. Full Comoensation
Unless and to the extent expressly provided otherwise by the
provisions of one or more Work Releases(s):
1. Consultant I s compensation for Work performed pursuant
to this Agreement shall be determined in accordance with the
provisions of Section "A" of this Article, and the Fee(s) paid
under Section "A" of this Article shall constitute the entire
amount(s) to be paid by Consultant for performance of service(s)
hereunder; and
2. Consultant's invoice(s) for any Project(s) shall not
exceed any maximum payment obligation ("not to exceed") of GE set:
forth in the applicable Work Release.
C. Compensation for Chanqes
GE's approval of any Change Notice documenting an approved
change or GE's issuance of any change Notice or Purchase
order/Change Order documenting an approved or directed change
pursuant to the provisions of section "C" of Article I hereof
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shall, if and as applicable, increase or decrease the maximum
payment obligation ("not to exceed") of GE set forth in a Work
Release. Any payment by Consultant to GE as a result of any Change
Notice shall be due immediately and may, at GE'S sole option, be
offset against any then outstanding or future invoice(s) from
Consultant or, if a refund of payments previously made to
Consultant, be paid by Consultant within ten (10) days after the
date of GE's invoice(s) therefor. GE shall not be obligated to pay
Consultant for any change unless GE has approved or issued the
applicable Change Notice in writing in advance.
ARTICLE IV - INVOICING AND PAYMENT
A. Reimbursement
Unless otherwise expressly provided in an individual Work
Release and agreed to by Consultant, GE shall reimburse Consultant
monthly in accordance with the provisions of this Article IV and
Article III hereof for the performance of Service(s) pursuant to
this Agreement.
B. Invoicinq
1. Consultant shall invoice GE under this Agreement on
or before the tenth (lOth) day of each calendar month for any
amount (s) due hereunder for the preceding calendar month. GE shall
make payment to Consultant of any undisputed amount(s) properly
invoiced within forty-five (45) days after receipt by GE of a
correct and conforming invoice.
2. Each invoice submitted by Consultant hereunder shall
provide detailed cost breakdowns by task for each Project in a
format acceptable to and at no additional cost to GE inClUding, but
not limited to, the number of hours by date and by task worked by
each billable Consultant employee assigned to the Project, the
applicable billing rate(s) for each such employee, total cost for
each such employee by task and appropriate supporting detail
required by GE, plus any itemized charges necessarily, reasonably,
properly, and actually incurred by Consultant in connection with
the Project during the time period for which Consultant is entitled
to reimbursement hereunder, costs by tasks incurred by the Project
to date and the remaining budget on a per task basis. Invoices
require documentation for all direct charges over $100 (i. e.
subcontractor invoices, rental/purchased items, expense reports).
(Sample invoice incorporated herein as Exhibit D)
3. The final invoice submitted by Consultant for any
Project(s) shall include the following certification: "This invoice
is for final payment for Work on the Project authorized under Work
Release No. , dated , 19__, and the
undersigned represents that all subconsu1tants, contractors and
subcontractors at any tier on said Project have been paid in full."
t-
8
C. Invoicinq for Chanqcs
In addition to the Fee, payments as provided in Section "C" of
Article III for a change authorized under Section "c" of Article I
may be invoiced on or before the tenth (lOth) day of the month
following the month in which the amount due therefor is determined.
In all other respects, the invoicing and payment provisions of this
Article shall apply to the Work, as changed.
ARTICLE V - LEGAL RESPONSIBILITY: STANDARD OF PERFORMANCE
A. Standard of Performance: Warranties
1. Scoce
a. Genera 1 . Consul tan t unders tands and
aCknowledges that the Work performed hereunder mqy involve
hazardous or toxic sUbstance(s)/waste(s) and laws, regulations, and
government agency policy and guidance documents related thereto.
Consultant represents and warrants that it is technically,
financially, and legally ready, willing, and able to perform
Services in response to each Work Release issued hereunder and that
it is familiar with and knowledgeable about the applicable laws,
regulations, and government agency policy documents to the extent
necessary to carry out its duties under any Work Release(s) issued
hereunder in a professional, complete, and compliant manner.
Consultant further warrants that Service(s) perfo~ed by or
delivered through Consultant shall be in accordance with or beyond
equally qualified, competent and experienced consultants, and sha:;'l
conform to the provisions of this Agreement and the provisions of
the Work Release(s) (including without limitation any associated
drawings, specifications, bills of material, and calculations
contained or incorporated therein). Consultant also warrants that
GE's title and appurtenant rights to all de1iverab1es or other
documentation, plans, and data referred to in Article VIII.S shall
be free and unencumbered by claims from Consultant or any third
party.
b. Desion, Consultant warrants any Service(s)
furnished by or delivered through Consultant against defects with
respect to design(s) if and to the extent such design(s) has been
furnished by or through Consultant.
c. Field Work. Consultant warrants that any field
related Service(s) delivered by or through Consultant hereunder
shall be free from defects in labor and material, that any
equipment utilized in connection with performance hereunder shall
be safe and in proper working order, and that any material(s)
and/or equipment incorporated in the Work shall be new, properly
cleaned and decontaminated and of first class quality (unless
otherwise expressly consented to in writing by GE) .
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d. Compliance with Laws. Consultant warrants for
itself and its officers; directors; employees; agents; and
subconsultants; vendors; contractors; and subcontractors at any
tier, and their respective agents and employees, compliance with
all applicable Federal, State or Commonwealth, and local laws,
regulations, ordinances, Executive Orders, codes, standards,
permits, and licenses specifically including, but not limited to,
those concerning health, safety, and the protection of the
env ironment and those concerning Equal Employment Opportunity,
Employment of Veterans, Employment of the Handicapped, Employment
Discrimination Resulting from Age, Utilization of Disadvantaged and
Minority Business Enterprises.
e. Patents, Consultant
design(s) furnished by or through Consultant
claim(s) of patent infringement.
warrants that any
shall be free of any
f. Measurements. Performance and Producti vi tv.
In order to review and evaluate baseline measurement which are
included in Exhibit C (base rates); Article III (Compensation) and
Exhibit F (Evaluation criteria), at GE's request Consultant agrees
to meet on a quarterly basis for the purpose of evaluating
performance based Upon baseline measures contained herein and for
the further purpose of defining/adjusting any such measures as
appropriate. Notwithstanding the foregoing, GE agrees to work with
Consultant to ensure that Consultant is able to provide ongoing
cost reductions in administrative and other charges and to increase
and improve productivity.
2. Remedv
In the event of any warranty nonconformance or defect,
Consultant shall, with due attention to GE's requirements and
needs, promptly correct, to GE's satisfaction and at Consultant's
sole cost and expense, the nonconformance or defect, together with
any and all damage or loss to the Work resUlting therefrom
(including without limitation reprocurement or reconstruction
occasioned thereby). In the event of a breach of the warranties
set forth in Paragraph "d" of Article V.A.l, Consultant agrees to
indemnify, save, defend, and hold harmless GE in accordance with
the provisions of Subsection "2" (Compliance with Applicable Laws)
of Article V.C hereof. In the event of a breach of the warranties
set forth in Paragraph "e" of Article V.A.l, Consultant agrees to
indemnify, save, defend, and held harmless GE in accordance with
the provisions of Subsection "5" (Patents, Copyrights and
Trademarks) of Article V.C hereof.
B. Consultant Responsibi1itv
The Consultant shall be responsible
omissions of its officers; directors;
subconsu1tants; vendors; and Contractors;
to GE for the acts and
employees; agents; and
and subcontractors at any
,
:i
I
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tier, and their respective agents and employees. The Consultant
shall remain primarily responsible and liable for performance of
the Service(s), regardless of whether GE has given approval or
consent to a particular subconsultant, vendor, Contractor, or
subcontractor at any tier, subcontract document(s), and/or any
other matter in connection therewith. Further, it is recognized
that the matters dealt with in Paragraphs 1 through 8 of this
Article V, Section "B", are important to GE and material to
Consultant's performance of this Agreement, and, therefore,
Consultant represents and warrants that any Work performed by or
through Consultant on or in connection with any Work Release(s)
issued hereunder shall be performed in accordance with the
fOllowing paragraphs:
1. Environmental Records
If and as applicable, Consultant shall maintain ,complete
records of the chain of custody and control of all environmental
samples and waste materials handled, transported, and/or disposed
of as a result of Consultant's activities under th~s Agreement, and
Consultant shall deliver all such records pertaining to an
individual Work Release to GE in accordance with instructions from
GE and when requested by GE, but in no event later than the time
when Consultant's performance pursuant to any Work Release has been
completed.
2. Hazardous and Toxic Material{sl
Consultant agrees that it shall inform its officers;
directors; employees; agents; subconsul tants; vendors; contractors;
and subcontractors at any tier; and any other party which may come
into contact with hazardous or toxic material(s) as a result of
Consultant's performance or failure to perform hereunder of the
nature of such materia1(s) and any health or environmental risk(s)
associated herewith. In this regard, Consultant will exercise its
independent judgment as to whether it should consult with a more
knowledgeable party to determine the nature and extent of any such
risk(s) .
3. Health and Safetv
Any condition threatening the health and safety of any
emp10yee(s) or agent(s) of Consultant or GE, of any employee or
agent of any subconsultant, vendor, contractor or subcontractor of
either of them, or of any member of the general public shall be
immediately brought to the attention of GE. Consultant is
responsible for adopting, maintaining, and complying with an
adequate health and safety plan, which must be in accordance with
any and all applicable laws, rules and regulations, and supporting
employee information and other records for conduct of its
operations, a conformed copy of the current version of which has
been furnished to GE. Consultant shall furnish GE copies of such
I
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,#
plan, as it may be updated or ~evised from ti~e to time, during the
term of this Agreement. Nothing contained in this Section shall be
deemed to relieve Consultant of its responsibilities under this
Agreement, at law, or in equity, or to imply any approval by GE of
Consultant's health and safety plan contents or documents, or to
make GE restlonsib1e for any act or omission of Consultant with
respect to compliance or noncompliance with said plan.
4. Oualitv Assurance and Control
Any condition threatening to adversely affect quality
assurance and control of Consultant's performance hereunder shall
be inunediately brought to the attention of GE. Consultant is
responsible for adopting, maintaining, and complying with an
adequate quality assurance and control plan for conduc.t: of its
operations, a conformed c~py of the current version of which has
been furnished to GE. Consultant shall furnish GE conformed copies
of such plan, as it may be updated or revised from time to time,
during the term of this Agreement. Nothing contained in this
Section shall be deemed to relieve Consultant of its
responsibilities under this Agreement, at law, or in equity, or to
imply any approval by GE of Consultant I s quality assurance and
control plan contents or documents, or to make GE responsible for
any act or omission of Consultant with respect to compliance or
noncompliance with said plan.
5. Traininq and Oualifications
Consultant is responsible for assuring that any and all
Consultant personnel and any and all personnel engaged by or
through Consultant have been properly trained and are fully
qualified (in accordance with any and all applicable laws, rules
and regulations) to perform their respective duties as assigned by
or through Consultant. Consultant shall maintain appropriate
records of the training and qualifications of its personnel
assigned to Work under this Agreement and shall assure that, as may
be required under the law of any jurisdiction related to
performance of any Work Release issued hereunder, such personnel
possess any requisite licenses and/or certificates required or
generally recognized as appropriate to performance of duties to
which they are assigned. Nothing contained in this Section shall
be deemed to relieve Consultant of its responsibilities under this
Agreement, at law, or in equity, or to imply any approval by GE of
Consultant's training or personnel qualifications standards or to
make GE responsible for any act or omission of Consultant with
respect thereto.
6. Monitorinq, Samp1inq. Reportinq, and Sample Disposal
All monitoring and sampling activities shall be conducted in
a manner consistent with the rights of third parties and any access
and security requirements applicable to the site involved. Reports
12
;~- ...-...--. -..------. --- "---. -... .~. "
--''f ". -~~p
i '"', -,
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of monitoring and sampling with any associated laboratory analyses
and findings shall be made in a format acceptable to GE and to
appropriate local, state and federal agencies, but, at minimum,
shall rGflect the sample identification and chain-of-custody
procedures consistent with those required by the U.S. Environmental
Protection Agency's Office of Enforcement and Compliance
Moni toring, as set forth in the National Enforcement Investigations
Center (OONEICOO) ooNEIC POlicies and Procedures Manual".
Laboratories selected to conduct sample analysis shall be subject
to approval of GE. Disposal of samples on site or off site shall
be made in full compliance with all applicable legal requirements
of any government or agency having jurisdiction thereof.
Consultant shall retain any sample(s) for a minimum period of
forty-five (45) days unless specified otherwise in the applicable
Work Release. Before disposing of any samp1e(s), Consultant shall
notify GE, and GE may require that such sample(s) be retained for
an additional specified period. Sample disposal arrangements shall
be subject to approval by GE. Nothing contained in thi~ Section
shall be deemed to relieve Consultant of its responsibilities under
this Agreement, at law, or in equity, or to imply any approval by
GE of Consultant's monitoring, sampling, reporting, and/or sample
disposal activities under this Agreement (except insofar as GE may
grant express approval with respect to selection of source(s) for
laboratory sample analysis or sample disposal site(s)).
7. Conflicts of Interest
It is recognized that the performance by Consultant in the
context of Consultant's other involvements could present both GE
and Consultant with questions involving possible conflicts of
interests. Accordingly, Consultant agrees to disclose to GE any
situation involving an actual or potential conflict of interest
which may arise, directly or indirectly, in the course of
performance by Consultant of any obligation pursuant to this
Agreement or any Work Release issued hereunder. With respect to
any such disclosure, GE shall review with Consultant and shall
determine the most appropriate course of action, including but not
limited to withdrawal, cancellation or termination of Work
Release(s) or this Agreement itself if GE should determine .that
such course of action is in its best interests under the
circumstances then prevailing, and provided further that Consultant
reserves the right to decline an individual Wo~k Release in the
event that its acceptance would represent a potential or actual
conflict of interest.
B. Substance Abuse
The parties agree that all Work to be performed under this
Agreement shall be performed in compliance with Consultant's
program for maintaining a drug-free work force and work place.
Consultant is responsible for adopting and maintaining its own
program for assuring a drug-free work force and work place, a
1)
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conformed copy of the current version of which has been furnished
to GE. Should such program be updated or revised from time to
time, Consultant shall furnish GE conformed copies of such program.
Nothing contained in this Section shall be deemed to relieve
Consultant of its responsibilities under this Agreement or to imply
any approval by GE of Consultant's program contents or documents,
or to make GE responsible for any act or omission of Consultant
with respect to compliance or noncompliance with said program or
laws or regulations relating to a drug-free work force or work
place.
C. Indemnitv
1. General To the extent permitted by applicable law,
Consultant shall at all times indemnify, save, defend, and hold
harmless GE and its officers, directors, employees, and agents from
and against all claims, injuries (including without ,limitation
wrongful death) to persons (including without limitation employees
of Consultant and GE) and damages to property of GE and others,
losses, liabilities, finp.s, penalties, costs, expenses, and
detriments CJf every nature and description (including without
limitation reasonable attorneys' fees) to which GE may be subjected
by reason of any negligent act or omission of Consultant; its
officers; directors; employees; agents; and/or its subconsultants;
suppliers; contractors and subcontractors at any tier, and/or their
respective agents and employees (except where any such claim,
damage, loss, liability, cost, expense, and/or detriment is due to
GE's negligence in which instance said losses above referenced will
be apportioned as to GE'S and Consultant's respective negligence).
2. Compliance with Applicable Laws. Consultant shall
at all times indemnify, save, defend, and hold harmless GE and its
officers, directors, employees, and agents from and against all
claims, losses, liabilities, damages, fines, penalties, fees
(including without limitation attorney's fees), costs, and expenses
of whatsoever kind or nature arising out of or in connection with
noncompliance by Consultant, or any of its officers; directors;
employees; agents; or any of its subconsultants; ve~dors;
contractors; or subcontractors at any tier, or their respective
agents or employees, with any applicable Federal, State or
Commonwealth, or local law, regulation, ordinance, Execu'tive order,
code, standard, permit, or license including, but not limited to,
those concerning health, safety, and the protection of the
environment.
J. Existina Contamination. The presence of
contamination on any site or in any facility as of the date of
commencement of Consultant I s performance under any Work Release
shall not in and of itself give rise to any duty on the part of
Consultant to indemnify GE hereunder. Notwithstanding the
foregoing, Consultant's indemnity obligations shall apply to the
14
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presence of any contamination or the release ~f any hazardous or
toxic substance(s) caused by or contributed to by any negligent or
wi1ful1 act or omission of Consultant or any person or firm engaged
by or through Consultant.
4. stiDu1ated Penalties. Consultant shall reimburse GE
for GE's payment of any stipulated penalty pursuant to any order,
1ecree, or other legal instrument or process of any court, agency,
or other governmental entity which arises out of any failure by
Consultant, or any person or firm engaged by or through Consultant,
tc perform in accordance with the provisions of this Agreement or
any Work Re1ease(s) issued hereunder.
5. Patents. CODvriohts. and Trademarks. Consultant
agrees to indemnify, save, defend, and hold harmless GE against any
and all damages, losses, liabilities, fees (including without
limitation attorney's fees), costs and expenses of whatspever kind
or nature arising directly or indirectly from any- claim of
infringement of any patent, copyright, or trademark due to any act
or omission connected with Service (s) rendered by or through
Consultant.
D. Consequential Damaqes
Except for the protections afforded GE pursuant to section "C"
of this Article with respect to claims of third parties, neither
party shall be responsible to the other for lost revenues, lost
profits, cost of capital, claims of customers, or other special,
indirect, consequential, or punitive damages.
ARTICLE VI - INSURANCE AND BONDS
A. Required Insurance
Prior to performing any Service(s), Consultant shall obtain,
and thereafter maintain in full force and effect until such time as
performance of all Services subject to this Agreement is completed
and accepted by GE, the fOllowing insurance coverages:
1. Workers' Compensation insurance in accordance with
the requirements of the applicable laws of the jurisdiction (State
or Commonwealth) in which Work is to be performedj
2. Employer's Liability insurance with a limit of not
less than Five Hundred Thousand Dollars ($500,000);
J. Public Liability and Property Damage insurance,
including Contractual Liability coverage with respect to
indemnifications set forth in this Agreement and any Work
Re1ease(s) issued hereunder, with limits of not less than One
Million Dollars ($1,000,000) per person per accident or occurrence
for bodily injury (including but not limited to wrongful death) and
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One Million Dollars ($1,000,000) per accident or occurrence for
property damage;
4. Errors and Omissions (Professional LiabiEty)
insurance with limits of not less than Five Million Dollars
($5,000,000) ;
5. Automobile insurance for owned 01:: hired vehicles with
limits for public liability of not less than One Million Dollars
($1,000,000) per person per accident or occurrence for bOdily
injury (including but not limited to wrongful death) and limits of
not less than One Million Dollars ($1,000,000) per accident or
occurrence for property damage;
6. Umbrella/Excess Liability insurance with a limit of
liability of not less than Ten Million Dollars ($10,000,000); and
7. Environmental Impairment and/or Po11ution:Liability
insurance with limits of not less than One Million Dollars
($1,000,000) with further coverage on a Work Release basis as
requested and approved by GE.
B. Evidence of Insurance
All insurance required by this Agreement shall be with
companies or governmental agencies and on forms satisfactory to GE,
and no such insurance shall be deemed to be in effect until such
time as validly issued certificates of insurance satisfactory to GE
are delivered to GE, which certificates shall require the insurance
carrier to notify GE at least thirty (:\0) days prior to expiration,
termination, or modification of any policy of insurance required or
approved by Agreement or GE under this Article. certif ica tes shall
be delivered to GE prior to commencement of performance of
Service(s), and Consultant shall assure that updated certificates
of insurance consistent with the provisions of this Agreement are
furnished to GE in a timely manner sufficient to maintain
Consultant's compliance with the provisions of this Article.
C. Bonds
GE reserves the right to require and to secure Consultant's
performance and payment obligations hereunder by one or more bonds
applicable to any Work Release(s) issued hereunder. Any such
bond(s) shall be from a surety and in form and content acceptable
to GE.
D. Consultant's Liabi1itv
Nothing contained in this Article VI shall be construed as
limiting Consultant's liability to GE or any third party.
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ARTICLE VII - TERMINATION: CANCELLATION
A. GE's Termination for Convenience
GE may terminate this Agreement and/or any Work Release(s)
issued hereunder for convenience at any time, without prejudice to
any claims which either party may have against the other, by
written notice to the Consultant at least seven (7) days prior to
the stated termination date, In such event, Consultant shall take
such steps as may be directed in GE's notice of termination and
shall be reimbursed for Service(s) rendered prior to the stated
date of termination plus all reasonable, actual, necessary, and
proper costs incurred at GE' s request after the stated date of
termination. In no event shall the total payment(s) made to
Consultant exceed any maximum payment obligation ("not to exceed")
agreed to in accordance with Subsection B.2 of Article III hereof,
as adjusted by any Change Notice(s) and/or Purchase Order~s) /Change
Order(s) approved or directed by GE pursuant to Secti:on "e" of
Article r and Section "C" of Article III hereof. In any event, the
invoicing and payment requirements set forth in Article IV hereof
shall be observed. Consultant may terminate this Agreement by
providing GE with at least thirty (JO) days written notice, except
for Work under accepted Work Releases and other Agreement
provisions including, but not limited to, warranty Obligations,
survival Obligations, insurance and indemnity requirements.
B. GE's Cancellation for Cause
GE may cancel this Agreement and/or any Work Release(s) issued
hereunder for cause at any time, without prejudice to any claims
which either party may have against the other, by written notice
and by providing an opportunity to cure to the Consultant at least
seven (7) days prior to the stated cancellation date. In such
event, Consultant shall take such steps as may be directed in GE's
notice of cancellation and shall be reimbursed for services(s)
rendered prior to the stated date of cancellation plUS all
reasonable, actual, necessary, and proper costs incurred at GE's
request after the stated date of cancellation, less the value of
any c1aim(s) which the GE may have against Consultant including,
but not limited to, the cost of completing Consultant's Work. In
no event shall the total payment(s) made to Consultant exceed any
maximum payment Obligation ("not to exceed") agreed to in
accordancp. with Subsection B.2 of Article III hereof, as adjusted
by any Change Notice(s) and/or Purchase Order(s)/Change Order(s)
approved or directed by GE pursuant to Section "C" of Article I and
Section "C" of Article III hereof, less the value of GE's claim(s)
against Consultant. In any event, the invoicing and payment
requirements set forth in Article IV hereof shall be observed. In
addition to any other causes for which GE may cancel this Agreement
and/or any Work Release hereunder, and without limiting the
generality of the foregoing, Consultant acknowledges that its
breach of any Agreement provisions or obligations related to
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environmental considcloations and/or the health, safety, and welfare
of its employees, GE's cmp10yees, any other personnel at any Work
site, and/or any third parties or members of the general pUblic
shall be cause for cancellation of this Agreement.
C, Consultant's Termination
Consultant may elect to terminate this Agreement on the second
anniversary date of the effective date of this Agreement by
providing GE with written notice at least ninety (90) days prior to
this second anniversary date.
ARTICLE VIII - PATENTS: OWNERSHIP OF PLANS: DATA RIGHTS
A. Use or Desiqnation of Patented Products or Processes
Without GE's prior written approval, Consultant warFants that
it will not use, designate for use, or allow others under its
contrc1 to use or designate for use, in connection with the Work,
any patented or patent pending article, method or device which
involves or requires payment of any license, fee or royalty in
addition to the compensation agreed to under this Agreement.
Consultant further warrants that the Work to be performed under
this Agreement does not infringe upon any patents, trademarks,
trade secrets, or copyrights of third parties, and Consultant shall
take all necessary actions to ensure that no such infringement
occurs. In the event any claims are made as set forth above or in
addition to Consultant's obligations under Article V(c) Indemnitv,
and at GE's sole option, Consultant agrees to tender a defense on
behalf of GE. Consultant shall make no settlement of any such
claims without prior written approval from GE.
B. Ownership of Plans
All original tracings of drawings and specifications, designs,
reports, bills of material, instruments, calculations, and other
documentation (regardless of medium) prepared by or through
Consultant shall be GE's property, with full and unrestricted
rights of ownership and use vested in GE, and shall be delive~ed to
GE in accordance with deliverable work product and schedule
provisions of Work Release(s) issued pursuant to this Agreement,
but for any individual Work Release not later than the time, as
applicable, of completion of performance, postponement,
termination, or cancellation of Service(s) thereunder.
ARTICLE IX - CONFIDENTIALITY
Consultant for itself and its subcontracts, subcontractors,
and/or vendors agrees to following provisions:
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A. Confidential Treatment
Consultant will treat as confidential, and use only for
benefit of GE, identification of the nature and extent of its Work
hereunder, its Work product hereunder whether deliverable or
nondeliverable, and all data, plans, processes, formulae,
manufacturing procedures, and any other confidential matter which
GE has heretofore disclosed or may hereafter disclose to
Consultant, its subconsultants, vendors, contractors, at any tier,
or their respective agents or employees, or permitted Consultants,
its subconsultants, vendors, and/or subcontractors at any tier, or
their respective ilgents or employees to observe, in connection with
fulfillment of this Agreement.
B. No Communication
Consultant will not divulge the same to others, or use the
same in any way which may be to GE's detriment, without~E's prior
written consent, except information in the public domain prior to
such disclosure, or information which is independently supplied to
Consultant other than through a breach of this Article or a similar
provision in any other Agreement, or which Consultant is compelled
to disclose by legal order or process so long as Consultant
provides no less than fifteen (15) business days advance notice of
the compelled disclosure to GE so that, if desired, GE may seek an
appropriate protective order or other legal redress.
C. No Publication
Consultant will refrain for any purpose from displaying,
publishing, or publicizing any document or copy or reproduction
thereof belonging to GE without prior written authorization from a
responsible officer of GE, unless such document has been previously
published in the public domain by GE.
ARTICLE X - RECORDS: AUDITS
Consultant shall prepare and maintain detailed accounting
records of all actual, reasonable, and necessary direct and
indirect labor, subcontracted labor, purchased materials, overhead
and general administrative charges, and reimbursable expenses
properly allocable to Work performed hereunder. Such records, as
well as systems of accounting and financial control employed by
Consultant hereunder, shall be subject to GE's approval and shall
be of such accuracy and detail as to permit GE to assess and
protect fully its financial interests under this Agreement.
Consultant shall permit or arrange for GE to have access to and to
audit at all reasonable times all such records, correspondence,
account books, purchase orders, subcontracts, invoices, cancelled
checks, payroll details (records/register), and other records
relating in any way to Work performed under this Agreement and/or
any Work Re1ease(s) issued hereunder. Consultant shall preserve
19
,-
all records at its sole cost and expense for a period of at least
five (5) years fOllowing completion of any Project for which work
has been awarded under this Agreement and/or any Work Release(s)
issued hereunder. In the event that Consultant shall thereafter
wish to dispose of such records, Consultant shall first furnish GE
at least thirty (30) days advance written notice of such intent,
and GE shall have the right (but not the obligation), at its sole
cost and expense, to take possession of such records and to arrange
for their delivery to GE.
ARTICLE XI - KEY PERSONNEL
~.
~
,
,
"Key Personnel" are considered to be essential to the Work
performed in any Work Release(s) where such personnel are
designated. With respect to and for the duration of the Work to be
performed by Consultant pursuant to any such Work Release (s) ,
Consultant agrees not to remove, replace, or reassign Key'Personnel
without GE's prior written consentl If Key Personnel become
unavailable for reasons beyond Consultant's control for assignment
to Work under any applicable Work Release (s), Consultant shall
immediately notify GE and shall submit information (including but
not limited to proposed substitutions) in sufficient detail to
permit GE to evaluate the impact of the situation on the Work to be
performed. Prior to substitution of Key Personnel, Consultant
shall obtain GE's written consent as to the acceptability of
replacement personnel.
ARTICLE XII - MISCELLANEOUS
A. Aoo1icab1e Law
Any issue involving the SUfficiency, formation, course of
performance, administration, construction, and/or interpretation of
this Agreement and/or any Work Re1ease(s) issued hereunder shall be
governed by the applicable laws of the State of New York, excluding
its choice of laws and conflicts of laws rules.
B. Aqreement Administration
In consultation with Corporate Environmental Programs (CEP),
the administration of this Agreement will be performed by the Real
Estate and Construction Operation (RECD) of the General Electric
Company with full authority to approve, authorize, and execute all
Agreement modifications or amendments.
C. Document Retention Requirements
Due to the need to ensure that records generated during the
performance of GE's projects are maintained in an appropriate,
effective and organized manner with respect to document retention
requirements imposed by law as well as GE's auditing requirements,
the following guidelines apply to all proj ect records maintained by
20
,<
Consultant including typed documents, handwritten communications
and notes, tapes and electronically stored information or data.
1. Documents prepared by Consultallt
a) Drafts
only finalized documents should be retained.
All draft documents (inclUding paper and
electronic copies, and any annotated copies
containing comments or other markings) should
be destroyed upon finalization (e.g. submittal
to and approval of document by GEi
finalization of letter or report to
governmental agency). Draft documents should
be maintained no longer than six months after
finalization.
b) Meetino Notes, Loos. Records of Communication
All documents prepared internally by
Consultant such as meeting notes, records of
communication (e.g. telecoms) and other
similar documents should be maintained for a
period of time no longer than six months after
the preparation of such documents.
c) Accountino Records
Consultant should maintain detailed
accounting records of all actual, reasonable,
and necessary direct and indirect labor,
subcontracted labor, purchased materials,
overhead and general administrative charges,
and reimbursable expenses properly allocable
to work performed under this Agreement. All
such records should be maintained for a period
of at least five (5) years (or such longer
period as specified by GE following completion
of any project for which work has been awarded
under this contract and/or work release).
d) Insurance Records
Consultant should maintain all records
evidencing required insurance coverages under
this Agreement and/or any Work Release for a
period of at least twelve (12) years (or such
longer period as specified by GE following
completion of any project for which work has
been awarded under this Agreement and/or work
release.
21
"
e) Patents, Licenses
Consultant should maintain all records
relating to any patents or licenses used in
connection with work performed under this
contract and/or Work Release for a period of
at least twelve (12) years following
completion of any project for which such work
has been awarded under this Agreement and/or
work release.
"
k
r
f. Final Documents
Consultant should maintain all final
documents for a period of time no longer than
seven (7) years, following completion of any
project for which work has been awarded under'
this Agreement and/or Work Release.
2. Documents Prepared bv others
Documents prepared by
by Consultant should
Consultant's document
provisions.
others and reviewed
be subject to
retention policy
3. Confidential Documents
Any confidential correspondence or
documentation prepared by or received by
Consultant should be clearly marked as such
and should be maintained in a secure and
protected filing system, separate from other
project documentation.
4. Leqa1 Reauirements
Record retention procedures are necessary
to ensure that records are kept according to
the requirements of governmental agencies. To
the extent that Consultant's document
retention policy provisions are not consistent
with legal requirements with respect to record
retention, Consultant shall comply with
applicable legal requirements.
5. Matters in Litiqation
With respect to documents
matters currently involved in
Consultant and its counsel should
related to
litigation,
consult with
22
GE and its counsel as to whether modifications
to these guidelines are appropriate.
D. Successors and Assiqns: subcontracts
1. This Agreement, and every covenant, condition, and
provision thereof, shall work to the benefit of and be binding upon
the GE and the Consultant, and each of their respective partners,
heirs, and legal representa~ives, successors, and permitted
assigns.
2. Consultant shall not assign, delegate, sublease, or
transfer all or any part of its interest in this Agreement without
the prior written consent of the GE. Any such attempt at
assignment, delegation, sUbleasing, or transfer without GElS prior
written consent shall b6 null, void, and of no force and effect.
3. Consultant shall not hire any subconsultants or
otherwise subcontract any part of the Service(s) to be performed
under this Agreement without GE's approval in writing. In the
event GE shall grant such approval, any charges for extra work or
for changes performed by subconsultants or other subcontractors
shall be reimbursed by GE at actual cost to Consultant without
addition of any overhead, general and administrative charges, or
profit by Consultant.
4. GE shall have the right to employ other consultants
and/or contractors in connection with any Project(s) without the
Consultant's approval and without payment of any additional
compensation to Consultant.
E. Set Off
Any amount owing at any time from Consultant to GE or any of
its affiliated companies may be set off against amounts due and
payable by the GE to the Consultant for Services supplied under
this Agreement. Consultant agrees to specify in all subcontracts,
subconsultant agreements, and purchase orders entered into by it in
furtherance of the performance of the Services contemplated hereby
that amounts payable by it thereunder shall be subject to set off
by it on behalf of the GE for amounts owing by such subconsu1tants,
vendors, contractors, and/or subcontractors at any tier to GE or
any of its affiliated companies.
F. Indeoendent Contractor
Consultant is and shall remain for all intents and purposes an
independent contractor, and shall have no power, nor represent any
power to bind GE or to assume or create any obligation, express or
implied, on behalf of GE, unless specifically authorized by this
Agreement or any Work Re1ease(s) issued hereunder.
23
G. Survival
Any provision setting forth an obligation or duty of
Consultant which by its nature is not expected to or cannot be
performed during the actual or projected life of this Agreement
and/or and Work Release issued hereunder shall be deemed to survive
'suspension or completion of performance, expiration, termination,
or cancellation of this Agreement and/or any Work Release issued
hereunder.
H. Nonwaiver
Failure by either party to insist upon strict performance of
any of the terms and conditions of this Agreement, or to exercise
any right or privilege contained in this Agreement, shall not be
construed aR a waiver unless in writing and signed by the party to
be charged. Any waiver at any time by either party of 'any term,
condition, right, or privilege contained in this Agreement shall
not be deemed to be a waiver of any other term, condition, right,
or privilege or a waiver of the same term, condition, right, or
privilege at any other time.
I. Notices
Any notice submitted under this Agreement shall be deemed
given if in writing and addressed to:
For GE:
For Consultant:
Barbara B. MacPhail, Esq.
GE/RECO
One River Road 36/3E
Schenectady, NY 12345
Stephen J. Myers, CEP
McLaren/Hart Environmental
Engineering Corporation
28 Madison Avenue Ext.
Albany, New York 12203
J. No Anci11arv Aoreements: No Third Partv Beneficiaries
Unless specified otherwise in this Agreement and/or any
applicable Work Release(s), GE and Consultant agree that there are
no other agreements in connection with the performance of Services
hereunder and that there are no intended third party beneficiaries
of Services performed pursuant to this Agreement.
K. Release of Liens
Consultant shall not file any lien attributable to any Work
performed under this Agreement and/or any Work Release issued
hereunder, upon any property now or heretofore owned or to be owned
by GE, nor shall Consultant suffer any of its subconsu1tants,
subcontractors, and/or vendors to file any such lien or
encumbrance. Upon request of GE, Consultant shall execute or, if
24
.'
requested by GE, arrange for the execution of a release of lien(s),
in form and manner acceptable to GE, which release shall be
applicable to any and all Work performed pursuant to this Agreement
and any Work Release(s) issued hereunder,
L. Comc1ete Aqreement
This Agreement, including, but not limited to, any and all
~xhibit(s) attached hereto and incorporated herein, together with
any and all Work Release(s) issued hereunder, and any Exhibit(s),
Attachment(s), Schedule(s), and Appendix(ices) attached thereto and
incorporated theretn, does and shall constitute and represent the
complete agreement of the parties and supersedes any previous
communications, representations, correspondence, and/or agreements,
whether verbal or written, with respect to the subject matter
hflreof.
M. Severabi1itv
If any provision of this Agreement or of any Work Release(s)
issued hereunder is held invalid by a court of competent
jurisdiction, such provision shall be severed from this Agreement
or any Work Release(s), as applicable, and, to the fullest extent
possible, the remaining provisions shall continue in full force and
effect.
25
N. Contract Benefit Exchanoe
Because GE has existing contracts with many service and
commodity partners and because substantial cost benetits to GE and
Consultant may be achievable by Consultant's utilization ot such
contract extensions, Consultant agrees to identify opportunities
for reducing costs by utilizing benefits available from existing GE
contracts and further to use best efforts in obtaining such cost
benefits where available and feasible. If cost savings are
achieved as a result of this best efforts contract benefit
exchange, Consultant and GE agree that any cost savings realized
will be shared equally by GE and Consultant in a manner acceptable
to GE and to Consultant. Similarly, Consultant agrees to work with
GE to identify opportunities for reducing environmental services'
costs of GE-contracted suppliers in other commodity/service areas
utilizing selected benefits of this contract.
IN WITNESS WHEREOF, the parties hereto have made and entered into
this Agreement as of the day and year first above written.
GENERAL ELECTRIC COMPANY
McLAREN/HART ENVIRONMENTAL
ENGINEE NG CORPORATION
lRleHARR.W-ffiN~ {iZ.A3
DIRECTOR OF CONTRACTS
By
Title
By
By
Title
- ~.
By
Title
26
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MESIROV (;ELMAN JAFn: CRAMER & JAMIESON
By: Lawrcnec A. Serlin. Esquire
Attorncy Identificution No. 42898
1735 Market Streel. Suite 3800
Philadclphia, PA 19103-7598
(215) 994-1000
Attorncy for Pluintill' Wcdgcwood
Hills Apartment Associates, L.P.
BERGEN MULTIFAMILY II, INC. and
FMPIMLM II, INC., trading as
WEDGEWOOD HILLS APARTMENT
ASSOCIATES, L.P.,
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
v.
CIVIL ACTION - LAW
McLAREN/HART, INC.,
Defcndant
NO. 97-5581
AFFIDA VIT OF SERVICE OF COMPLAINT
COMMONWEALTH OF PENNSYLVANIA
SS
COUNTY OF PHILADELPHIA
Kyle D. Gibson, being duly sworn according to law deposcs and says:
1. I am a paralegal with the law firm of Mesirov Gelman Jaffe Cramer and
Jamieson which rcprcsents lhe plaintiffin thc above eaptioned matter.
2. On October 21, 1997, I servcd defendant McLaren/Hart, Inc. with a truc and
correct copy of thc Complaint in this action via certified mail, rcturn rcecipt rcquested, c/o Steven E.
Mair, Vice Presidcnt and Gcncral Counsel, McLaren/Hart. Inc., 11101 White Rock Road, Rancho
Cordova, CA 95670. The signed certified mail return receipt is attaehcd hcrcto as Exhibit A.
(""'"'. I .....__1
.!...I".f ,~. ) \ ("1;.",,,,,_,. ~
KYLE ~\ GIBSON
SWORN TO AND SUBSCRIBED
BEFORE ME THIS ,~Isr DAY
OF OC /-r;b...- ,1997.
, /1 Y?I
'(f~"'L<J... .' l-/J [3
NOTARYPU8L
NOTARIAL SEAL
CAROl L. MERTZ. Notary Publlc
Docu nl N&'~P2S!l!~" PhK.. County
M, com",..."", Ex . Mon:I1 2&, ~
MESIROV GELMAN JAFFE CRAMER & JAMIESON
By: Catherine M, Ward, Esquire
Attorney Identification No. 54530
1735 Market Street, Suite 3800
Philadelphia, PA 19103-7598
(215) 994-1276/1034
Attorney for PlaintiffWedgewood
Hills Apartment Associates,L.P,
BERGEN MUL nF AMIL Y II, INC. and
FMPIMLM II, INC., trading as
WEDGEWOOD HILLS APARTMENT
ASSOCIATES, L,P"
COURT OF COMMON PLEAS OF
Plainlilf
CUMBERLAND COUNTY,
rENNSYL VANIA
CIVIL ACTION - LAW
v.
McLAREN/HART, INC"
Defendant
NO. 97-5581
SUBSTlTION OF COUNSEL
Please withdraw my appearance as attorney for Plaintiff, Wedgwood Hills Apartment
Associates, L.P. in the above-captioned matter,
~d~
La rence'. Serlin, Esquire
/I,
Please enter my appearance as attorney for Plaintiff, Wedgwood Hills Apartment
Associates, L.P. in the above-captioned matter,
~/r.~
Catherine M, Ward, Esquire
j
\
ARCHER & GREINER
A Profcssional Corporation
3700 Bell Allantic Tower
1717 Areh Strect
Philadelphia. Pcnnsylvania 19103
(215) 568-4166
By: Joel Schneidcr, Esquire
PA Attorney J.D. No. 32246
Attorncys for Dcfendant McLarenlHnrt, Inc.
NOTICE TO PLEAD:
You arc hcreby notificd 10 filc a
written responsc to the (neloscd
Ncw Matter within twcnty days
from serviec hcreof or judgment
may be entercd against you.
BERGEN MUL nF AMIL Y II, INC. and
FMP/MLM II. INC., lrading IlS
WEDGEWOOD HILLS APARTMENT
ASSOCIATES, L.P.,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYL VANIA
NO. 97-5581
CIVIL ACTION - LAW
Plaintiff,
v.
McLAREN/HART. INC..
Defendant.
DEFENDANT McLAREN/HART, INC.'S
ANSWER TO PLAINTIFF'S
COMPLAINT WITH NEW MATTER
Dcfendant McLarenIHnrt, Inc. ("McLaren/Hart"), responds as follows to plaintiffs
eomplaint:
PARTIES
I. McLarenIHart is without knowledge or infonnation sufficient to fonn a belief IlS
to the truth of these avennents.
2. Admitted.
3. Dcnied IlS stated. McLaren/Hart hIlS conducted environmental investigations,
including PhllSe I reviews of rcal property, and hIlS prepared reports pertaining to such
20-21. Admittcd.
22. Admitted in part; denied in part, It is admitttd that during the April 30, 1997 site
visil, McLaren/Hart's rcprcscntatives uneovcred cvidence which indicated that USTs were still
present althe site. It is denied that McLaren/Hart's representativcs dctermined the physical
presenee of twelvc USTs from observations of above-ground piping and fill port caps, which
werc obvious and apparcnt or which are connectcd to the bclow-ground tanks.
23. Admittcd in part; denied in part. It is admitted that the 1996 Phase I Report does
not mention thc prcscnce of pipes or fill port caps. It is denied thatthc pipes and fill port caps
wcrc obvious and apparcnt or that Mr. Michacls inspccted the Property on February 29, 1996. It
is further denied thatthcrc was no menlion of thc potcntial or actual prcscnce of USTs atthc
Properly in the 1996 Report.
24. Denicd. It is dcnied that McLaren/Hart was ablc to asccrtain readily thaI USTs
wcrc still prescnt on thc propcrty from obscrving numcrous fill ports and vcnt pipes. It is further
dcnicd that no new or additional information relativc to thc presence of lhe USTs at the sitc was
providcd to McLaren/Hart during the April 30, 1997 inspcction.
25. Denied. It is dcnied lhat McLaren/Hart ultimately determined that twelve USTs
wcre slill prcsent at thc Property.
26-28. McLarcn/Hart is wilhout knowledgc or information sufficient to form a belief as
to the truth ofthesc avermcnts.
4
COUNT I . BREACH OF CONTRACT
29. McLaren/Hurl ineorporales hcrein by rcference as though fully set forth atlcngth
its answcrs to paragraphs 1-28 abovc.
30-33. Denicd. By way of further rcsponsc. thc Agrcement, which is attached as Exhibit
A to plaintiff'R complain I, spcaks for itself.
34. Admitted in part; denied in purl. It is admitted that plaintiff has presented damagc
claims to McLaren/Hart. It is denicd lhat McLarcn/Hart has any obligations undcr the Reliance
Agreement which it failcd and refused to fulfill.
35-36. Denicd. It is dcnied lhat McLarcn/Hart breached any contract with Wcdgewood.
The remaining avenncnts in these paragraphs constitute conclusions oflaw to which no response
is requircd.
37. Dcnicd. Thc avennent that McLarenlHart brcached ils contract is denied.
McLaren/Hart is without knowledge or infonnation sufficicntto fonn a belief as to the truth of
the remaining avcnncnts.
WHEREFORE, defendant McLaren/Hart dcmands thatjudgmcnt be entered in its favor
and against plaintiff togethcr with such othcr and furthcr rclief as this Court dccms just and
propcr.
COUNT II . NEGLIGENCE
38. McLarenlHart ineorporates hcrein by rcfcrencc as though fully set forth at length
its answers to paragraphs 1-37 above.
5
39-42. It is dcnicd that McLaren/llart brcached any duty of carc 10 Wcdgcwood. By way
of furthcr response, thc avcrmcnts in thcse paragraphs constitute conclusions of law to which no
rcsponsc is requircd. M"Laren/Hart is without knowlcdge or information sufficicntto form a
belicf as to thc remaining avcrments in these paragraphs.
WHEREFORE, defcndant McLarcn/Hart dcmands thaI judgmcnt be cntcred in its favor
and against plaintiff together with sueh othcr and furthcr rclicfas this Court deems just and
propcr.
NEW MATTER
I, Plaintiff's complaint fails to state a claim upon which rclief can be granted.
2, McLarenlHart denies the existcnce of any duty owcd to plaintiff and, in any event,
dcnies violating any such duty, if any such duty is found to have existed.
3. The injuries and damagcs complaincd ofwcrc the proximate rcsult of the
negligence or inaction of othcr parties or of third parties ovcr whom McLarcn/Hart had no
control and for whose aclions McLarcn/Hart is notliablc.
4, The injurics and damages complaincd of were caused by superseding and
intcrvening acts and/or negligencc of othcr partics or of third parties over whom McLarenlHart
had no control and for whosc actions McLarcn/Hart is notliablc.
5. Thc relicf sought in plaintiff's complaint is barrcd, in wholc or in part, because of
plaintiffs contributory ncgligencc, comparative ncgligcnee and/or assumption of the risk.
6
6. Plaintiff's claims arc barred in whole or in part by thc applicable statute of
limitations.
7.
Plaintiff's claims are barrcd by thc statute of frauds.
8.
plaintiff.
No act or admission of McLaren/Hart was thc cause of any alleged hann to the
9.
Plaintiffs claims are barred by lack of privity.
10.
Plaintiffs claims are barred by failure of consideration.
11.
Plaintifrs claims are barrcd by thc doctrine of waiver.
12.
Plaintifrs claims are barred by the doctrine of laches.
13.
Plaintiffs claims are barrcd by thc doctrine of estoppel.
14. If any contractual duty is found to exist to plaintiff, which is denied, then the
contract is unenforceable bccause of thc failure to perform all conditions preccdent.
15. Plaintiff has failed to mitigatc damages.
16. Plaintiff's claims are barred and/or limited to the extent that there are defenses to
any and all of plaintiff's contractual and quasi-contractual claims.
17. Plaintiff's claims are barred by the doctrine of accord and satisfaction.
7
CERTIFICATE OF SERVICE
I, Jocl Schneider, hereby certify thut on Junuary 20, 1998, I caused to be served a true and
corrcct copy of the Ibregoing plcading on thc below namcd counscl, via United States first-class
mail, postage prepaid:
Cathcrinc M. Ward, Esquire
Mcsirov Gclman Jaffe Cramcr & Jamieson
1735 Market Strecl, Suite 3800
Philadelphia, PA 19103.7598
6",1 ~,/,IU.; ,t...--
J EL CHNEIDER (1.0, No, 32246)
2'12723
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
NO, 97-55~1
f ;!.r:U -(;::;::C!:
CF "". r .... ,,' ':'JU.l't
BERGEN MULTIFAMILY II, INC.
and FMP/MLH II, INC.,
trading aa WEDGEWOOD HILLS
APARTMENT ASSOCIATES, L.P.,
nr, "'I ~ I ,.. 0'''6
'"1U ~-..,." /. i:, t ...JO.j
CUI', ,,' ! ,,' ," ""['(
1.-_............. ; .l; ".....-'..11
I"'". ,'"..,.. ^
.L:";-\~lL,', \.,
Plair.tIff.
v.
MCLAREN/HART, INC.,
Defendant.
DEFENDANT MCLAREN/HART. INC.'S
ANSWER TO PLAINTIFF'S COMPLAINT
WITH NEW MATTER
JOEL SCHNEIDER, ESQUIRE
PA Attorney 1.0, No. 32246
Aeca.. . a......
.~COfttIOItATlON
COUNHLLOfta AT LAW
1700 HU AT\.ANnc lOWIN
1717 AItCH IT"r"
il'HK.AOEL.I"t<<A.'WNH.VL'lI'AH....I.IOI
(215) 568-4166