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HomeMy WebLinkAbout03-0985HUTTON & RIGGS, INC., Plaintiff, V. IAY R. REYNOLDS, INC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants. [lq THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA IURY TRIAL DEMANDED CIVIL ACTION NO. {~q NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served by entering a written appearance personally, or by an attorney, and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any claim or relief requested by the defendant. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE Cumberland County Bar Association Carlisle PA 17013 (717) 249-3166 1-800-990-9108 HB:46908v1 4450-01 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEME LLEVAR ESTE DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle PA 17013 (717) 249-3166 1-800-990-9108 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. Date: March 4, 2003 C. Gi'a~n~er 4?,6wman I.D. #15706 Kelly H. Decker I.D. #84886 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 Attorneys for Hutton & Riggs, Inc. HB:46908v1 4450-01 Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C. 114 N. Second Street Harrisburg, PA 17101 Phone: (717) 238-9300 C. Grainger Bowman, Esq. I.D. #15706 Kelly H. Decker, Esq. I.D. #84886 Attorneys for HUTTON & riggs, INC. HUTTON & RIGGS, INC., Plaintiff, V. JAY R. REYNOLDS, INC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAL DEMANDED CIVIL ACTION NO. 0.9- q ~'6~ COMPLAINT 1. Plaintiff, HUTTON & riggs, INC. ("Hutton") is a professional corporation organized and existing under the laws of the Commonwealth of Pennsylvania with a principal place of business located at 94 Hidlay Church Road, Bloomsburg, Pennsylvania 17815. 2. Defendant, Jay R. Reynolds, Inc. ("Reynolds") is professional corporation organized and existing under the laws of the Commonwealth of Pennsylvania with a principal place of business located at 1 Brooks Avenue, P.O. Box 326, Willow Street, Pennsylvania 17584-0326. 3. Defendant, Fidelity and Deposit Company of Maryland ("Fidelity") is a Surety organized and existing under the laws of the State of Maryland with a principal place of business located at 200 Berwyn Park - Suite 105, Berwyn, Pennsylvania 19312-1187. 4. Venue is proper in the Court of Common Pleas, Cumberland County because Reynolds regularly conducts business in Cumberland County. 5. For some time, Hutton and Reynolds maintained a contractual and business :vl - relationship with one another whereby Reynolds, a prime general contractor, would enter into contracts with Hutton, as the subcontractor, to perform plumbing insulation on various projects. 6. Between September of 1999 and November of 2000, Hutton and Reynolds entered into subcontracts on four distinct public construction projects in furtherance of Reynolds' prime contracts with the public entities with whom Reynolds contracted to perform certain renovations and additions. 7. Specifically, Hutton entered into subcontracts with Reynolds to provide, among other things, plumbing insulation on four public construction projects relevant to this lawsuit, namely, the East Pennsboro Area School District, the Claremont Nursing and Rehabilitation Center, the Milton Area School District, and the Susquenita Elementary School (collectively referred to as the "Projects"). 8. On each of the these Projects, Reynolds failed to make payments to Hutton for work performed and materials supplied. 9. On each of these Projects, Reynolds improperly terminated Hutton. 10. At all relevant times herein, Hutton served as the subcontractor to Reynolds, the prime general contractor. East Pennsboro Area School District 11. On November 13, 2000, Hutton entered into a written subcontract with Reynolds in connection with the renovations and additions to the East Pennsboro Area High School Project ("East Penn Project"). A true and accurate copy of the subcontract is attached hereto as Exhibit mo :vl - Under the terms of the subcontract, Hutton agreed to furnish all labor and 2 materials for the plumbing insulation in accordance with the plans specifications and Addenda 1 through 5 including but not limited to domestic water piping, all above ground stormwater and hot water storage tanks. 13. The contract specified that the agreed upon contract price was $49,500.00, subject to additions and deductions for changes. 14. In accordance with the subcontract, Hutton submitted a Schedule of Values which was adopted and deemed acceptable to Reynolds. 15. Hutton commenced installation of the plumbing insulation. 16. During the project, Hutton incurred unanticipated costs and expenses for work performed outside the scope of the subcontract. 17. As early as August 27, 2001, Hutton notified Reynolds of the changes and requested a new schedule. 18. In addition, Hutton requested change orders fi'om Reynolds for the extra work it was required to perform. 19. Despite Hutton's request, Reynolds refused and failed to issue change orders but insisted that the work be performed. 20. The amount due and owing Hutton from Reynolds for the extra work performed on the East Penn Project is $18,500.00. 21. Hutton was required to perform the extra work in order to avoid breaching the contract and to avoid being terminated from the project. 22. Hutton has repeatedly demanded payment of the amount due for the work, including the extra work, Hutton performed. :vl - 3 23. On or about January 3, 2002, Reynolds notified Hutton of its intention to terminate Hutton from the project thereby denying Hutton an opportunity to complete the project work. 24. As ofHutton's terrnination from the project, the total amount of work remaining on the Project was approximately $32,777.33. 25. Upon termination from the project, Reynolds took possession of certain equipment owned by Hutton, including but not limited to a lift and a trailer, which together are valued at $30,000.00. 26. Reynolds' termination of Hutton was improper under the circumstances. 27. A total balance of $81,277.33 is due and owing to Hutton from Reynolds on the East Penn Project. COUNT I BREACH OF CONTRACT East Pennsboro Area High School Project 28. Hutton incorporates the above paragraphs as if fully set forth at length herein. 29. Until Hutton was terminated fi-om the Project, Hutton performed its obligations under the subcontract with Reynolds. 30. Reynolds breached the subcontract by failing to pay Hutton for work performed in accordance with the subcontract. 31. Further, as described above, Reynolds breached the subcontract by improperly terminating Hutton from the project without affording Hutton an opporttlnity to complete performance of the work and by failing to return equipment owned by Hutton. 32. Hutton has repeatedly demanded payment from Reynolds of the amount due but :vl - 4 Reynolds has wholly neglected and refused to pay the same or any part thereof. 33. Hutton has repeatedly demanded the return of Hutton's equipment which Reynolds refuses to return. 34. As a direct result of Reynolds' breach, Hutton is owed a balance of $81,277.33 on the East Penn Project. WHEREFORE, Hutton & Riggs, Inc. demands judgment in its favor and against Jay R. Reynolds, Inc. in the amount of $81,277.33 plus costs, fees and attorneys fees as permitted by law. COUNT II BREACH OF BOND OBLIGATIONS Hutton v. Fidelity (East Penn Project) 35. On or about October 20, 2000, Fidelity issued a Labor & Material Payment Bond ("East Penn Payment Bond") ensuring payment in connection with a contract between Reynolds and the East Pennsboro Area School District ("East Penn Owner") to perform certain plumbing construction work for the additions and alterations to the East Penn Project. A true and accurate copy of the East Penn Payment Bond is attached hereto as Exhibit B. 36. The last date upon which Hutton performed labor and/or supplied material called for in the subcontract, all of which were within the scope of the contract between Reynolds and the East Penn Owner, was December 7, 2001. 37. On January 3, 2002, Reynolds notified Hutton of its intention to terminate Hutton from the East Penn Project. 38. Despite Hutton's performance of its work in accordance with the subcontract and :v~ - 5 despite Hutton's repeated demands for payment, Reynolds has failed to pay Hutton for all materials furnished and all labor performed on the East Penn Project. 39. Hutton avers, upon information and belief, that all materials furnished by Hutton have been approved and accepted by the East Penn Owner and under the subcontract, all amounts are due and owing Hutton by Reynolds. 40. Pursuant to the tcrms and conditions of its subcontract, Hutton is entitled to and has made a demand for payment on Reynolds in the amount of $81,277.33. 41. All conditions precedent to the rights of Hutton and the liability of Fidelity have been satisfied. WHEREFORE, Hutton & Riggs, Inc. demands judgment in the amount of $81,277.33, together with attorneys fees, interests, costs of suit and such further relief as the Court deems appropriate. Claremont Nnrsine and Rehabilitation Center 42. On September 26, 2000, Hutton entered into a written subcontract with Reynolds in connection with the renovation and additions to the Claremont Nursing and Rehabilitation Center ("Claremont Project"). A true and accurate copy of the contract is attached hereto as Exhibit C. 43. Under the terms of the subcontract, Hutton agreed to furnish all labor and material for the plumbing insulation in accordance with all plans, specifications and Addenda #1 through #3 and install insulation kits provided by Jay R. Reynolds. 44. The agreed upon contract price was $32,500.00. 45. During the project, Hutton incurred unanticipated costs and expenses for work :vl- 6 performed outside the scope of the subcontract. 46. Despite Hutton's request that Reynolds issue change orders, Reynolds refused to issue change orders but insisted that the work be performed. 47. Hutton was required to perfonr~ the extra work in order to avoid breaching the contract and to avoid being temfinated from the project. 48. The value of the extra work performed by Hutton for which Hutton has not been paid is $3,256.00. 49. On or about January 3, 2002, Reynolds notified Hutton that it would be terminating Hutton from the Claremont Project. 50. As a result of Reynolds' improper termination and failure to pay Hutton for the extra work performed on the Claremont Project, Hutton is entitled to be payment in the amount of $18,746.80. COUNT III BREACH OF CONTRACT Claremont Nursine Home and Rehabilitation Center 51. Hutton incorporates the above paragraphs as if fully set forth at length herein. 52. Until Hutton was terminated from the Project, Hutton fully performed its obligations under the subcontract with Reynolds on the Claremont Project. 53. Reynolds breached the subcontract by failing to pay for work performed in accordance with the subcontract, including extra work in the amount of $3,256.00. 54. Further, as described above, Reynolds breached the subcontract by improperly terminating Hutton from the project without affording Hutton an opportunity to complete performance. :vl - 7 55. Hutton has repeatedly demanded payment from Reynolds of the amount due but Reynolds has wholly neglected and refused to pay the same or any part thereof. 56. As a direct result of Reynolds' breach, Hutton is owed a balance of$18,746.80 on the Claremont Project. WHEREFORE, Hutton 8,: Riggs, Inc. demands judgment in its favor and against Jay R. Reynolds, Inc. in the amount of $18,746.80 plus costs, fees and attorneys fees as permitted by law. herein. 57. COUNT IV BREACH OF BOND OBLIGATIONS Hutton v. Fidelity (Claremont Nursing Home Project) Hutton incorporates paragraphs 41 through 55 as if fully set forth at length 58. On or about August 23, 2000, Fidelity issued a Labor & Material Payment Bond ensuring payment in connection with a contract between the prime general contractor, Reynolds and the County of Cumberland to perform certain plumbing construction work for the renovations to the Claremont Nursing and Rehabilitation Center Project ("Claremont Payment Bond"). A true and accurate copy of the Claremont Payment Bond is attached hereto as Exhibit D. 59. The last date upon which Hutton performed labor and/or supplied material called for in the subcontract all of which were within the scope of the contract between Reynolds and the Claremont Owner was December 7, 2001. 60. On January 3, 2002, Reynolds notified Hutton of its intention to terminate Hutton from the Project. 8 61. Despite Hutton's performance of its work in accordance with the subcontract and despite Hutton's repeated demands for payment, Reynolds has failed to pay Hutton for all materials furnished and all labor performed on the Claremont Project. 62. Hutton avers, upon information and belief, that all materials furnished by Hutton have been approved and accepted by the Claremont Owner and under the subcontract, all amounts pursuant thereto are due and owing Hutton by Reynolds. 63. Pursuant to the terms and conditions of its subcontract, Hutton is entitled and has made a demand for payment on Reynolds in the amount of $18,746.80. 64. All conditions precedent to the rights of Hutton and the liability of Fidelity have been satisfied. WHEREFORE, Hutton & Riggs, Inc. demands judgment in the amount of $18,746.80, together with attorneys fees, interests, costs of suit and such further relief as the Court deems appropriate. Milton Middle and High School 65. On September 16, 1999, Hutton entered into a written subcontract with Reynolds in connection with the renovation and additions to the Milton Middle and High School. A true and accurate copy of the contract is attached hereto as Exhibit E. 66. Under the terms of the subcontract, Hutton agreed to furnish all labor and material for the plumbing insulation in accordance with all plans, specifications and Addenda #1 through :vl - 67. 68. The agreed upon contract price was $62,000.00. During the project, the scope of the work changed requiring Hutton to perform 9 work beyond the scope of the subcontract. 69. Hutton was required to perform the extra work in order to avoid breaching the contract and to avoid being terminated from the project. 70. Hutton requested payment for the extra work it performed in the amount of $2,500.00. 71. On or about January 3, 2002, Reynolds notified Hutton that it would be terminating Hutton from the Milton Project. 72. As a result of Reynolds' improper termination and failure to pay Hutton for the extra work performed, Hutton is entitled to be payment in the amount of $6,995.00. COUNT V BREACH OF CONTRACT Milton School Proiect 73. Hutton incorporates the above paragraphs as if fully set forth at length herein. 74. Hutton has fully performed its obligations under the subcontract with Reynolds on the Milton School Project. 75. As described herein, Reynolds breached the subcontract by failing to pay for work performed in accordance with the subcontract between the parties, including work performed outside the scope of the subcontract which Reynolds demanded Hutton perform in the amount of $2,500.00. 76. Further, as described above, Reynolds breached the contract by improperly terminating Hutton from the project. 77. Hutton has demanded payment fi'om Reynolds of the amount due but Reynolds has wholly neglected and refused to pay the same or any part thereof. :v~ - 10 78. As a direct result of Reynolds' breach, Hutton is owed a balance of $6,995.00 on the Milton Project. WHEREFORE, Hutton & Riggs, Inc. demands judgment in its favor and against Jay R. Reynolds, Inc. in the amount of' $6,995.00 plus costs, fees and attorneys fees as permitted by law. COUNT VI BREACH OF BOND OBLIGATIONS Hutton v. Fidelity (Milton School Project) 79. Hutton incorporates paragraphs 63 through 77 as if fully set forth at length herein. 80. On or about July 6, 1999, Fidelity issued a Labor & Material Payment Bond ("Milton Payment Bond") ensuring payment in connection with a contract between Reynolds and the Milton Area School District ("Milton Owner") to perform certain plumbing construction work for the additions and alterations to the Milton School Project. A true and accurate copy of the Milton Payment Bond is attached hereto as Exhibit F. 81. The last date upon which Hutton performed labor and/or supplied material called for in the subcontract, all of which were within the scope of the contract between Reynolds and the Milton Owner, was December 7, 2001. 82. On or about Jalmary 3, 2002, Reynolds advised Hutton of its intention to terminate Hutton from the Milton Project. 83. Despite Hutton's performance of its work in accordance with the subcontract and despite Hutton's repeated demands for payment, Reynolds has failed to pay Hutton for all materials furnished and all labor performed on the Project. 84. Hutton avers, upon information and belief, that all materials furnished by Hutton :v~ - 11 have been approved and accepted by the Owner and under the subcontract, all amounts pursuant thereto are due and owing Hutton by Reynolds. 85. Pursuant to the terms and conditions of its subcontract, Hutton is entitled and has made a demand for payment on Reynolds in the amount of $6,995.00. 86. All conditions precedent to the rights of Hutton and the liability of Fidelity have been satisfied. WHEREFORE, Hutton & Riggs, Inc. demands judgment in the amount of $6,995.00, together with attorneys fees, interests, costs of suit and such further relief as the Court deems appropriate. Susquenita Elementary School Project 87. On October 16, 2000, Hutton entered into a written subcontract with Reynolds in connection with the renovation and additions to the Susquenita Elementary School. A true and accurate copy of the contract is attached hereto as Exhibit G. 88. Under the terms of the subcontract, Hutton agreed to furnish all labor and material for the plumbing insulation in accordance with all plans, specifications and Addenda #1 through #6 including installation of insulation kits provided by Jay R. Reynolds. The agreed upon contract price was $23,500.00. Hutton performed work in accordance with the subcontract for which it is entitled 89. 90. to be paid. 91. 92. Hutton repeatedly requested payment for the work it performed. On or about January 3, 2002, Reynolds notified Hutton that it would be terminating Hutton from the Susquenita Project thereby denying Hutton an opportunity to :v~ - 12 complete the work. 93. As a result of Reynolds' improper termination and failure to pay Hutton for the extra work performed, Hutton is entitled to be payment in the amount $3,232.55. COUNT VII BREACH OF CONTRACT Susquenita School Project 94. Hutton incorporates the above paragraphs as if fully set forth at length herein. 95. Until Hutton was terminated from the Susquenita School Project, Hutton had performed its obligations under the subcontract with Reynolds on the Susquenita School Project. 96. As described herein, Reynolds breached the subcontract by failing to pay for work performed in accordance with the contract between the parties. 97. Further, as described above, Reynolds breached the contract by improperly terminating Hutton from the project without affording Hutton an opportunity to complete Hutton has demanded payment from Reynolds of the amount due but Reynolds has wholly neglected and refused to pay the same or any part thereof. 99. As a direct result of Reynolds' breach, Hutton is owed a balance of $3,232.55 on the Milton Project. WHEREFORE, Hutton & Riggs, Inc. demands judgment in its favor and against Jay R. Reynolds, Inc. in the amount of $3,232.55 plus costs, fees and attorneys tees as permitted by law. COUNT VIII BREACH OF BOND OBLIGATIONS Hutton v. Fidelity (Susquenita School Project) 100. Hutton incorporates paragraphs 86 through 98 as if fully set forth at length herein. :v~ - 13 performance. 98. 101. Fidelity issued a Labor & Material Payment Bond ("Susquenita Payment Bond") ensuring payment in connection with a contract between Reynolds and the Susquenita School District ("Susquenita Owner") to perfom~ certain plumbing construction work for the additions and alterations to the Susquenita Elementary School. Upon information and belief, Reynolds has a copy of the Susquenita Payment Bond in its possession. Despite requests, Hutton has been unable to obtain a copy of the labor and material payment bond issued to .lay R. Reynolds on the Susquenita School Project. 102. The last date upon which Hutton performed labor and/or supplied material called for in the subcontract all of which were within the scope of the contract between Reynolds and the Susquenita Owner was December 7, 2001. 103. On or about January 3, 2002, Reynolds notified Hutton of its intention to terminate Hutton from the Susquenita Project. 104. Despite Hutton's performance of its work in accordance with the subcontract and despite Hutton's repeated demands for payment, Reynolds has failed to pay Hutton for all materials furnished and all labor performed on the Project. 105. Hutton avers, upon information and belief, that all materials furnished by Hutton have been approved and accepted by the Owner and under the subcontract, all amounts pursuant thereto are due and owing Hutton by Reynolds. 106. Pursuant to the terms and conditions of its subcontract, Hutton is entitled and has made a demand for payment on Reynolds in the amount of $3,232.55. 107. been satisfied. :vl - All conditions precedent to the rights of Hutton and the liability of Fidelity have 14 WHEREFORE, Hutton demands judgment in the amount of $3,232.55, together with costs, attorneys fees, interest as permitted by law. COUNT IX QUANTUM MERUIT All Projects 108. Hutton incorporates all of the above paragraphs as if fully set forth at length herein. 109. Reynolds had notice of Hutton's performance of the work on the East Penn Project, the Claremont Project, the Milton School Project and the Susquenita Project (the "Projects") including the extra work Reynolds insisted that Hutton perform without issuing change orders. 110. 111. The work performed by Hutton on the Projects substantially benefitted Reynolds. Reynolds knew and reasonably expected to pay Hutton for performance of its work in the amount claimed. 112. Reynolds has not paid Hutton for the value of the work performed. 113. Reynolds will be unjustly enriched if it is not required to pay for the work performed by Hutton. 114. The value of the work performed by Hutton, but for which Hutton has not been paid, is $110,251.68 plus costs, fees, and attorneys fees as permitted by law. WHEREFORE, Hutton & Riggs, Inc. demands judgment in its favor and against Jay R. Reynolds, Inc. in the amount of $110,251.68 plus costs, fees, interest and attorneys fees as permitted by law. COUNT X COMMONWEALTH PROCUREMENT CODE All Projects 115. Hutton incorporates the above paragraphs as if fully set forth herein at length. 116. Reynolds' obligations to Hutton are subject to the Commonwealth Procurement Code, 62 Pa.C.S.A. § 3931 et seq. (the "Procurement Code"). 117. Hutton fully performed its obligations under the contract with Reynolds until on or about January 3, 2001 when Reynolds improperly terminated Hutton from each of the four Projects. 118. Reynolds did not provide Hutton with timely notice of deficiency items as required by the Procurement Code. 119. Reynolds has failed to make timely payments despite Hutton's demands to make such payments. 120. Reynolds' failure to pay and failure to pay in a timely manner violates the Procurement Code. 121. Reynolds has refused to provide any reasons for justifying withholding payments. 122. Reynolds' withholding of payments from Hutton on each of the four Projects has been in bad faith. 123. Based upon Reynolds' failure to comply with the Procurement Code, Hutton is entitled to interest, penalties and attorneys fees. 124. Interest and penalties under the Code continue to accrue. :v~ - 16 WHEREFORE, Hutton & Riggs, Inc. demands judgment in its favor and against Jay R. Reynolds, Inc. in the amount of $110,251.68 plus costs, penalties and attorneys fees as permitted by law. Date: March 4, 2003 By: POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. C. Grain-g~r B~/~vman -- Attorney I.D. #15706 Kelly H. Decker Attorney I.D. # 84886 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 :v~ - 17 Exhibit A SUBCONTRACT This A§reeillent, Made this 13th day of November, 2000 by and between Ilutton & Riggs Inc., 94 ttidlay Church Road, Bloomsburg, PA, 17815, hereinafter called the Subcontractor and Jay R. Reynolds, Inc., P. O. Box 326, Willow Street, PA 17584 hereinafter called the contractor. Project: Renovations and Additions to East Pennsboro Area High School 890 Valley St., Enola, PA 17025 Contract No. 13 - Plumbing Construction Owner: East Pennsboro Area School District 890 Valley Street Enola, PA 17025 Architect: Gilbert Architects 626.North Charlotte Street Lancaster, PA 17603 Engineer: Moore Engineering 3637 Columbia Ave. Lancaster, PA 17603 The Contractor and Subcontractor agree as set forth below. CONTRACT DOCUMENTS: a. The Contract Documents for this Subcontract consist of the Agreement and any Exhibits attached hereto, the Agreement between the Owner and Contractor dated October 20, 2000, the conditions of. the Contract between the Owner and Contractor, all Drawings, all Specifications, and all Addenda issued prior to execution of the Agreement between the Owner and Contractor and all Modifications issued subsequent thereto. b. Ail of the above documents are a part of this Subcontract, have been reviewed by the Subcontractor and shall be available for use by the Subcontractor upon his request. WORK TO BE PERFOP~MED: The Subcontractor and the Contractor agree that the materials to be furnished and work to be done by the Subcontractor are: Furnish all labor and material for the plumbing insulation in accordance with all plans, specifications and Addenda #1 through #5 and Bulletin No. 1, including, but not limited to, domestic water piping, all aboveground storm water and hot water storage tank. TIME OF COMMENCEMENT AND COMPLETION OF WORK: a. The Subcontractor agrees to commence his work on notice and shall complete his work by' August 16, 2002 and in accordance wi~h the project schedule. For failure to commence and com~,lete his work on time, the Subcontractor shall be subject to damages and remedies by the Contractor as set forth in other portions of this Agreement. CONS IDERATION: " The Contractor agrees to ~ay the Sub~o~'tractor for 'the performance of his work the' sum of lorry-nine thousand five hundred dollars .... 00/100 ($49,500.00) in current funds, subject to additions and deductions for such changes as may be agreed upon in writing and a~)proved ill writing by the owner, project engineer, or architect, said sum to be paid as (a) PROGRESS PAYMENTS: (1) The Contractor shall pay the Subcontractor monthly progress payments in the amount of 90 percent of the Application submitted. Applications shall be in writing and shall be submitted to the Contractor on or before the 15th day of each month. (2) The Subcontractor shall, before the first application, submit to the Contractor a schedule of values of the various parts of the Work aggregating the total sum of this Subcontract, made out in such detail as the Subcontractor and Contractor may agree upon, or as required by the Owner, and supported by such evidence as to its correctness as the Contractor may direct. This schedule, when approved by the Contractor, shall be used as a basis for Applications for Pa~ent, unless it be found to be in error. In applying for payment, the Subcontractor shall submit a statement based upon this schedule. (3) If payments are made on account of materials or equipment not incorporated in the Work but delivered and suitably stored at the site, or at some other location agreed upon in writing, such payments shall be in accordance with the terms and conditions of the Contract Documents. (4) Unless otherwise provided in the Contract Documents, the Contractor shall pay the Subcontractor each progress payment within 15 working days after the Contractor has received payment from the Owner for labor and material covered in the Application submitted by the Subcontract~. (b) FINAL PAYMENT: (1) Subcontractor shall submit to Contractor a statement signed by the job superintendents of Contractor and Subcontractor, stating that all work covered by this Subcontract has been satisfactorily completed and performed. Upon receipt of said statement, the final payment shall be paid by the Contractor to the Subcontractor within 15 days after the Contractor shall have received the final payment from the Owner on the Prime Contract. (2) Receipted Invoices and Affidavit: As a further condition of progress payments and final payment, the Contractor may require the Subcontractor to furnish receipted invoices for all materials incorporated into the work or placed on the job site, supported by the affidavit of the Subcontractor setting forth that all claims for labor and material have been paid, with the names and addresses of all laborers and materialmen listed. (3) No certificate given or pa~nent made under this contract, except the final certificate or final payment shall be conclusive evidence of the performance of this contract, either wholly or in part, and no payment shall be construed to be an acceptance of defective work or improper materials. PEP~FORMANCE, LABOR~/qD MATEPJ3kL PAYMENT BOarDS: NONE REQUIRED TEMPORA/Iy FACILITIES ~ SERVICES: The Contractor shall furnish and make available at no cost to the Subcontractor the following temporary facilities and services: NONE REQUIRED all other necessary services and facilities are the responsibility of the Subcontractor. SUBCONTPJ%CTOR'S RESPONSIBILITIES: (a) (b) (c) (d) f) The Subcontractor agrees: To be bound to the Contractor by the terms of this Agreement and of the Contract Documents between the Owner and Contractor, and shall assume toward the Contractor all the obligations and responsibilities which the Contractor, by those Docuraents, assumes toward the Owner, and shall have the benefit of all rights, remedies and redress against the Contractor which the Contractor, by those Documents, has against the Owner, insofar as applicable to this Subcontract, provided that where any provisions of the Contract Documents between the Owner'and Contractor is inconsisfent with any provisions of this Agreements, this Agreement shall govern. To submit to the Contractor applications for payment in such reasonable time as to enable the Contractor to apply to the Architect for payment. To make all claims for extras, for extensions of time and for damages for delays or otherwise, to the Contractor in writing before proceeding to execute such work. That this/Subcontract shall.not be assigned unless the Contractor shall first consent thereto in ~iting.. To take out and pay for Employe~'s Liability or Worker's C~mpensation 'Insurance as required by the State in which the work is being performed. To pay all social security, unemployment compensation, sales or other taxes or charges assessed against the wages or salary of the Subcontractor's employees or offiGers or against any materials used itl tile performance of this Subcontract. q'o indemnify the Contractor against the claims o[ all materialme, a[ld (]mploy~:~ Subcontra'ctor, including Court costs and attorney's lees incu[red in the de£enu(~ (h) To furnish as a condition to obtarn~ng payments nereunueL al~ [el~a~e~, u~c~d[ges oL other instrLunents that may be required to release the structure from any and all claims, demands, suits, or whatever kind or nature, arising out of the performance of this Subcontract. (i) To provide adequate insurance to protect all persons not employed by the Subcontractor against claims for damages for personal injury including death, which may arise out of the performance of this Subcontract or by or on account of any act or omission of said Subcontractor, its employees or agents. Certificates of such insurance shall be furnished to the Contractor. (j) To comply with all laws, orders or regulations of the Federal, State or Local Goverru~ent or of any of their respective, subordinate agencies, departments or conuuissions, applicable to the performance of this Subcontract. (k) That no payment shall be made hereunder unless all work schedules to be performed in a substantial and workmanlike manner, and until the Subcontractor has deposited with the Contractor satisfactory releases of liens and claims for liens of all laborers and materialmen, and all other persons in any way performing service or furnishing labor or materials to the Subcontractor on account of this Subcontract for the work in question. (1) That any work done or material furnished failing in the requirements of the Plans, Specifications and this Subcontract, will be removed from the premises and replaced by the Subcontractor at his expense. (m) That time is of the essence of this Subcontract. (n) To furnish, in form approved by the Contractor, and if specified under paragraph 5 or elsewhere h~rein a completion or other bond providing for the payment of all wages and materials. (o) To furnish to the Contractor, upon request, the names and addresses of all Subcontractors and materialmen, together with amounts due or to become due them and to furnish and cause Subcontractors to furnish upon request of the Contractor and on forms furnished by the Contractor, such reports concerning wage scales, payrolls, and otherwise, as the Contractor may require. (p) That no changes from the Plans and Specifications shall be made, and that no extras shall be performed, unless a separate agreement in writing shall have been made before the conunencement of such work or the furnishing of materials. Unless otherwise provided herein, the Contractor will not recognize orders for changes or extras given by employees or representatives of the Contractor on the job. (q) To protect and save harmless the said Contractor against any claim or demand of any persons or property for damage caused hereunder, or any claim or demand for patent fees, royalties or for any invention, machine, article or arrangement that may be used by the Subcontractor in the construction of the work, and agrees to defend any and all actions arising out of any of the foregoing claims; to notify the Contractor of all such claims; to defend it, and pay counsel fees and expenses of all kinds whatsoever in connection therewith; and the Subcontractor further agrees that in event of any injunction or legal action, serving to stop the work, the Contractor shall have the privilege of substituting such other articles of similar kind in order to enable the Subcontractor or to complete the work, and all costs and expense occasioned thereby shall be borne by the Subcontractors. (r) To notify the Contractor in writing or by shop drawings of any special provisions required of the Contractor for the installation of the work to be done by the Subcontractor that are not shown on the plans and specifications in detail, in sufficient time to allow-the Contractor to make these special provisions as the project progresses. In the event the Subcontractor fails to so notify the Contractor, it shall be the responsibility of the Subcontractor to bear the expense for all changes required to properly install his work. (s) Subcontractor shall be responsible for any deviations from the drawings or the specifications, unless the Subcontractor has, in writing, notified the Contractor of such deviations, giving reasons therefore, at the time of submission of preliminary or final shop drawings. (t) To take all reasonable safety precautions with respect to his Work, to comply with all safety measures initiated by the Contractor and with all applicable laws, ordinances, rules, regulations and orders of any public authority for the safety of persons or · property ~n accordance.with the requirements of the Contract Documents. The Subcontractor · shall report t'o the Contractor inuu~diately any injury to any of the'Subcontractor's employees at the site. (u) That all materials and equipment furnished and incorporated by him in the Project shall be ne~ unless otherwise specified, and that all Work under this Subcontract shall be of good quality, free from faults and defects and in conformance with the Contract Documents. All Work not conforming to these standards may be considered defective. This warranty shall be in addition to a~d not in limitation of any other warranty or remedy required by law or by the Contract Documents. ' - · · (v) Promptly submit shop drawings and samples as required in order to perform his work ' efficiently, expeditiously and in a manner that will not cause delay in the progress of the Work of the Contractor or other Subcontractors. (w) To comply with all laws and regulations (state and federal) relating to wages,, hours, overtime, record-keeping, equal emplo~nent opportunity, etc they apply to this project. - as 10. CONTRACTOR'S ~{ESPONSIBILITIES: The Contractor agrees: (a) To be bound to the Subcontractor by the terms of this agreement and of the Contract Documents between the Owner and the Contractor and to assume toward the Subcontractor all the obligations and responsibilities that the Owner, by those Documents, assumes toward the Contractor, and to have the benefit of all rights, remedies and redress against the Subcontractor which the Owner, by those Documents, has against the Contractor, insofar as applicable to this Subcontract, provided that where any provision of the Contract Documents between the Owner and the Contractor is inconsistent with any provision in this Agreement, this Agreement shall govern. (b) To promptly notify the Subcontractor of' all modifications to the Contract between the Owner and the Contractor which affect this Subcontract and which were issued or entered into subsequent to the execution of this Subcontract. (c) That if he fails to make payments to the Subcontractor as herein provided for any cause not the fault of the Subcontractor, within seven days from the time payment should have been made, the Subcontractor may, upon seven days' additional written notice to the Contractor, stop his Work without prejudice to any other remedy he may have. (d) To make no demand for liquidated damages for delay in any sum in excess of such amount as may be specifically named in this Subcontract, and no liquidated damages shall be assessed against this Subcontract for delays or causes attributed to other Subcontractors or arising outside the scope of this Subcontract. (e) That no claim for payment for services rendered or materials and equipment furnished by the Contractor to the Subcontractor shall be valid without prior written notice to the Subcontractor. (f) To cooperate with the Subcontractor in scheduling and performing his Work to avoid conflicts or interference in the Subcontractor's Work. (g) To permit the Subcontractor to be present and to submit evidence in any arbitration proceeding involving his rights. ACCEPTANCE: The Contractor and the Subcontractor agree that: (a) If on the date of the execution of this Subcontract, the Prime Contract between the owner and the Contractor has not yet been executed, then if such Prime Contract shall not be so executed and delivered, for any reason whatsoever, the Contractor shall be under no obligation to the Subcontractor herein by virtue of this Subcontract. (b) If the Prime Contract for the project herein mentioned is with the Federal or State Government, or any of their subdivisions, agencies, or representatives, this subcontract shall be subject to any right of termination contained in such Prime Contract. In the event of such termination allowance which shall be made to it by the Government for the work covered herein, less the proportionate share of the Contractor's overhead allocated thereto. (c) In the event the Subcontractor is not acceptable to the Owner and/or the Architect for any reason whatsoever, the Contractor shall be under no obligation or responsibility to the Subcontractor, and this Subcontract shall become null and void. (d) Before the commencement of any work the parties shall furnish to each other copies of all collective bargaining agreements to which either of them may be a party and which pertain to any labor to be performed on the project. TERMINATION FOR FAILLrRE TO WORK: Should the Subcontractor fail to prosecute the work to the satisfaction of the Contractor, or should he at any time become insolvent, or refuse to follow the Plans and Specifications, or fail to perform the work in a good and workmanlike manner, or cause by any action the stoppage of the work of other subcontractors performing work upon this property, or fail to comply in any other respect with this subcontract; then, upon the happening of the foregoing events, or any one of more of them, the Subcontractor agrees that the Contractor may, by three days' written notice mailed to the subcontractor at his last known residence or place of business, or notice delivered at such place, or to the foreperson in charge of the work, terminate this Subcontract and take over the work and prosecute the same to completion by contract or otherwise, and enter into and take possession of the work, materials, tools, appliances and equipment needed to complete such work, and make such payment as the Contractor deems necessary for the discharge in whole or in part of the claims, liens or claims for liens, of any person in privity'with the Subcontractor on account of this' Subcontract; and'the Subcontractor agrees that the expense of such notice and of the c6mpletion of such work, and the amount paid for the discharge or payment on account of claims, liens, or claims for liens, and the expense thereof, shall be deducted from the amount due or to become due the Subcontractor, and if more than the amount due, then the Subcontractor shall be liable to the Contractor for the difference, and the Contractor may hold, sell or otherwise realize upon any · material, machinery, tools, or other equipment upon the premises on account of such difference in case the Subcontract Shall fail or refuse to pay the sam~; all without ·prejudice to any other remedy the Contractor may have. If the Subcontractor shall aba'ndon the work, the Contractor shall be under no obligation to give any notice whatsoever prior to taking over the work. 12. 13. 11. LIENS AND CLAIMS: The Subcontractor hereby expressly waives, releases and relinquishes any and all right to maintain, or have filed or maintained any mechanic's lien or claim against the aforesaid pr~mises, or any part thereof, or any building or buildings thereon, for or on account of any work, labor and materials performed or furnished under this agreement, and agrees that no such lien or claim shall be so filed or maintained by or on behalf of the Subcontractor; and the Subcontractor further agrees to save the Contractor harmless from the lien or claim for liens against the aforesaid premises or any part thereof, or any buildings thereon, of any subcontractor, or any persons acting through or under the Subcontractor, and agrees, that if at any time there shall be any evidence of the filing or maintenance of any such lien or claim for lien the Contractor shall have the right to deduct from the amount otherwise due to the Subcontractor hereunder, an amount sufficient to indemnify it for any or all loss or damages which may result from such lien or claim; and the Subcontractor further agrees that this waiver shall be an independent covenant, and shall operate and be effective, not only with respect to materials furnished or labor performed under this subcontract, but also with respect to any and all materials furnished or labor performed under any subcontract supplemental to this principal subcontract, and under any subcontract for extra labor or materials for the above described premises. EXCLUSIVITY: This Document includes all the agreements between the Contractor and the Subcontractor for the specific Project named herein, and any changes hereto shall be made in writing and executed by both the Contractor and Subcontractor. ADDITIONAL ~MS: (a) The Subcontractor shall submit one copy of: Form No. G805 "List of Subcontractors" This form is used to identify each item of material or a subcontractor which will be used in the project. The items shall be listed using the title as shown in the specifications and reference the specification section, page and paragraph along with the applicable manufacturer or subcontractor, s complete name and address. (b) The Subcontractor under this Subcontract Agreement shall be subject to the approval of the Owner, Architect and Engineer. In the event the Owner, Architect or Engineer refuses to approve the Subcontractor, for whatever reason, the agreement may be canceled by the Contractor with no liability on the part of the Contractor. (c) Kindly submit 10 copies of submittal data, as required by the specifications for approval within 5 days. Each item shall be identified by title, section, page and paragraph nun%bet given in the Specifications. Do not release materials or proceed until after you have received proper approvals. (d) After approvals, kindly submit 4 sets of operating and maintenance instructions for all materials supplied. The instructions shall consist of data supplied by the manufacturer giving complete information on the following: (1) Identify each item per title in the Specifications and reference the page and paragraph number. (2) Installation procedures. (3) Operating instructions. (4) Maintenance instructions. (5} Detailed parts list. (6) Reco~ended spare parts. (7) Address and telephone nurabers of nearest supplier for each item. (e) Ail material and equipment furnished under this Subcontract Agreement shall be guaranteed by the Subcontractor to the Contractor and Owner to be fit and sufficient for the purpose intended. (f) Subcontractor shall submit Weekly Payroll Certification, Form LIPW-128, to this office weekly. Monthly payments will be withheld until received Copies of these forms will be forwarded to you. ' (g) Provisions of the contract requiring compliance with: (.1) Prevailing Minimum Wage. Predetermination (if applicab!e)~ (2) Equal OpportuDity Employment (3) Buy American Act (4) Pennsylvania Steel Products Procurement Act (5) Non-Discrimination Clause Agreement (see attached Exhibit "A" (h) All sales and use taxes are included in the Subcontract Agreement The Subcontractor agrees and consents to all additional terms and conditions set forth above. IN WITNESS WHEREOF, they have hereunto set their hands the day and year first above written. Attest: Contractor: Jay R. Reynolds, Inc. Brian FitzGerald, Droject Coordinator Attest: (I I O?\.Subonmrl hmon} ' KEYNOLDS, _, INC. MECHANICAL CONTRACTORS BROOKS AVE. · EO. BOX 326 · WILLOW STREET, PA 17584-0326 · PHONE (717) 464-2755 · FAX (717) 464-2784 · E-MAIL: jrri~epix.n¢! EXHIBIT A NON-DISCRIMINATION CLAUSE AGREEMENT TillS FORM MUST BE NOTARIZED BY ALL CORPORATIONS, PARTNERSttlPS OR SOLE OWNERS During the term of this contract with JAY R. REYNOLDS, INC. and the contractor ~ & RIGGS INC. agrees as follows: (Contractor means other party to the contract) (l) Contractor shall not discriminate against any employee, applicant for elnployment, independent contractor or any other person because of race, color, religious creed, ancestry, national origin, age, sex or non-job related disability. Contractor shall take affirmative action to insure that applicants are employed, without regard to their race, color, religious creed, ancestry, national origin, age, sex or non-job related disability. Such affirmative action shall include, but is not limited to: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other looms of compensation, and selection for training. Contractor shall post in conspicuous places, available to employees, agents, applicants for employment, and other persons, a notice to be provided by the contracting agency setting forth the provisions of this nondiscrimination clause. (2) Contractor shall, in advertisements or request for employment placed by it or on its behalf, state all qualified applicants will receive consideration for employment without regard to race, color, religious creed, ancestry, national origin, age, sex, or non-job related disability. (3) Contractor shall send each labor union or worker's representative with which it has a collective bargaining agreement or other contract of understanding, a notice advising said labor union or workers' representative of its commitment to the nondiscrimination clause. Similar notice shall be sent to every other source of recruitment regularly utilized by Contractor. (4) It shall be no defense to a finding of noncompliance with this non-discrimination clause that Contractor had delegated some of its employment practices to any union, training program, or other source or recruitment which prevents it from meeting its obligations. However, if the evidence indicates that the Contractor was not on notice of the third-party discrimination or made a good faith effort to correct it, such factor shall be considered in litigation in determining appropriate sanctions. (5) Where the practice of a union or any training program or other source of recruitment will result in the exclusion of minority group persons, so that Contractor will be unable to meet its obligations under this non- discrimination clause, Contractor shall then employ and fill vacancies through other nondiscritninatory employment procedures. · (6) Contractor shall comply with ali state and federal laws prohibiting discrimination in hiring or employment opportunities. In the event Of Contractor's non-compliance with the'non-discrimination clause of the contract of with any such laws, this contract may be terminated or suspended, in whole or in part, and Contractor may be declared temporarily ineligible for further Com,nonwealth contracts, and other sanctions may be imposed and remedies invoked.. (7) Contractor shall furnish all necessary employment documents and records to, and permit access to its books, records, and accounts by, the contracting agency and Office of Administration, Bureau of Affirmative Action, for purposes of investigation to ascertain compliance with the provisions of this clause. If Contractor does not posses documents or records reflecting the necessary information requested it shall furnish such information on reporting forms supplied by the contracting agency or the Bureau of Affirmative Action. (8) Contractor shall actively recruit ~ninority subcontractors or subcontractors with substantial minority representation among their employees. (9) Contractor shall include the provision of this nondiscri~nination clause in every subcontractor, so that such provision will be binding upon each subcontractor. (10) Contractor obligations under this clause are litnited to the Contractor's facilities within Pennsylvania or where the contract is for purchase of goods manufactured outside of Pennsylvania, the facilities at which such goods are actually produced. IN WITNESS WHEREOF, the contractor has caused this agreement to be executed this '~ ~7 day of .'~,~6~'/~.-/~, :~, 20 .F?, with the intention of being legally bound thereby. ' ' IF A CORPORATION: ATTEST: '"~..---~ Secretary or Treasurer or Assistant (Corporate Seal) z_P'resident or"VJc'e President /' Subscribed and sworn to before me the ~Q '~ 44.3 (Notary Seal) day of /'L/~~ 20070 [MASTER\FORMS\NONDISC2J Exhibit B RENOVATIONS AND ADDITIONS TO THE EAST PENNSBORO AREA HIGH SCHOOL- ~Pg01 "DOcuMENT o0615. PAYMENT BOND KNOW ALL MEN BY THESE PKESENTS that we, JAY R. REYNOLDS ~ INC. Corporation o ~rg~nized ~ existi~ under the laws of the Comuu~ealth of Pem~ylgania as Principal, (h~r~inat~er called the "Principal"), and FIDELITY AND DEPOSIT COMPANY OF MARYLAND ,a Maryland corporation (hereinafter called thc "Surety"), are held and firmly bound unto the East Pennsboro Area School District, hereafter called ~he "Obligce"), for the use and benefit of claimants as hereinafter defined, in the sum of Seven Hundred Eighty-three Thou.saD.d Ei_~ht Hundred DO~LA]{S ($ 783,8.00.0O ), lawful money of the United States of America, for the payment of which the Principal and the Surety bind themselves and their respective successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Obligee is a 'contracting body" under the provisions Of Public Works Contractors' Bond Law of 1967, as mended (the "Act"); and WHEREAS, The Principal intends to enter into an agreement dated · (~C-ffV/;~s~ ~..8 ,2000 (the "Contract"), withObligee for Contract ~13 - Plumbing Construction for East Pennsboro Area High School which Contract is by reference made a pan of this Bond; and WHEREAS, the Act requires that the Principal shall furnish this Bond to the Obligee before an award of the Contract shall be made to the Principal by the Obligee; NOW, THEREFORE, the terr~ and conditions of this Bond are and shall be that if the Principal shall promptly make payment to all eln!mants ns defined in the Act for aH labor and mnterial used or reasonably required for use in the performance of the Contract, limn this obligation shah be void; otherwise it shall remain in full force and effect, subject, howeamr, to thc following con. lions: This Bond shah be interpreted and enforced in accord.ce with the Act and the laws of the Commonwealth of Pennsylvania. The Principal and the Surety agree that exclusive jurisdiction and venue for any litigation conceim_i~g this Bond and the lransacfioas contemplated shall ex/st in the Cmnbedand County~ Penng-ylvania. Court of Common Pleas. The Principal and the Surety consent to such jurisdiction and venue. The Principal sad Surety further agree that aH disputes shall be resolved by non-jm'y trial (nnd the'Princ/pal and Surety hereby waive any fight lo a ju-w trial) nad thnt ail service of process, including any ingrument t0 institute suit, shall be effective if served in accordance with Pennsylvania law. PAYMENT BOND 00615 - I Power of'AttomeY FIDELITY AND DEPOSIT COMPANY OF MARYLAND HOME OFF:iCE: P.O. BOX t227, BALTIMORE, MD 21203-122'/ Know ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a co,potation of the State of Maryland, by W. B. WALBRECHER, Vice-President, and T. E. SMITH, Assistant Secretary, in porsuan~ of authority granted by Article VI, S~ction 2, of the By-L~ws of said Company, which are set forth on the rewrse side hereof and ~re hereby certified to b~ ia full forc~ and effect on the date hereof, does hereby nominate, constitute and appoint Joseph P. NoR, Dennis Dvorch~,k~ Lueila G. Kauffmnn, David R. Bradbury, Anth~)ny M. Macinanti and Debra L. Rineer, all of Lancaster, Pennsylvania, EACH its true and lawful agent and Attorney-in-Fact, to make, execute, se. al and deliver, for, and on its behalf as surety, and as its act and deed: any and all bonds and undertakings and thc cxcoution of such bonds or undertakings in pursuance of these presents, sh~gl~as binding u~.~aid Company. as fully and a~nply, to ali intents .and · purpose~, as if they had been duly executed and acknowledged by thc re~,~lccted offi,~Rh, c Company at its offic~ in Baltimore, Md., in their ovm proper l~rsons. This power of attorney/evokes that iss~d on beh~.,,-i~r~scph P. N~L,tk.~dated S~pt~mbcr 9, 1996. The said Assist~-~t Secretary does hereby certify that the extract ~,,r~h on the r~"~gidc hcgof is a true copy of Article VI, S~ction 2, of thc By-Laws of said Company, and is now in force. [lq WITNESS WHEREOF, the said Vice-President and Ass~cretazy h~.~ranto subscribed their names and affixed the Corporate Seal of the said FIDELITY AND DEPOSIT COMPANY OF IVlARY~ this 24th d~l~.-~eptembcr, A.D. 1997. ATTEST: FIDELITY A.I~ID.~POSIT NY OF MARYLAND On this 24th day of Scpgmbcr, A.D. 1997, before~tfi~crib~r, a Notary Public of thc State of Maryland, duly commissioned and qualified, came W. B. WALBRECHER, Vice-Presidcm and T. E. ~g[~l~], Assistant S¢cr~ta~ of tls FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to mc personally know~ m be tis individuals and o,J~i~N'~escribed in and who execnted the'preceding insmm~nL and th,~d ~-ac.h aclmowlcdge, d thc execution of thc same, and being by mc duly,~vs~vcrally and ~aoh for himself deposeth and suil~ that they are the s~i.'d officers of the Compa~.y aforesaid, and that the seal affmed to the pre~g instrument is the Corporate Seal. of said Company, and that the sad Corporat~ S~al and tiger signatures as such offic,~s were duly affixed and subscribed to the said instrument by thc amhority and direction of the said Corporation. IN TESTIMONY WHEREOF, 1 have hereunto s~t my hand and affixed my Official S~I the day and year first above written. My Co~hmiss~f£xpires: August 1, 2000 CERTII~ICATE I, the undersigned, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certif3' that thc original Power of Attome~ of which thc foregoing is a full, true and correct copy, is in full force and effec~ on the date of this certificate; and I do further g~nify ~ thc Vice-~ident who executed 'the said Power of At~mey was one of the addRiomd Vic~-l~.aldcuts specially authorized by the Board of Directors to appoint any ARomcy-in-Faet as provi4ed in Art~.'cle VI, Section 2, of the By-Laws of the FIDELri'Y AND DEPOSIT COMPANY OF MAR¥1..~AND. This Power of Attorney and C~-~tific. at¢ may be signed ~ facsimile undo' and by authority of the following ~-solution of the Board of Di~cturs of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 10th day of May, 1990. RESOLVED: "That the facsimile or mechanically reproduced seal of thc company and facsimile or mechanically reproduced signature of any Vice-Pmsideot, Secretary, or Assistant Secretazy of thc Company, whetlgr made he~tofor~ or hegat~r, wherever appearing upon a c~rtified copy of any power of att~mc~, issued by thc Company, shall be valid and binding upon the Company with thc same fore~ and effect as though manually affixed." IN TF_~TIMOlq¥ WHEREOF, ! have h~reunto subscritmd my name and a~flxcd the corporam seal of the said Comwmy, this dzs~tant Secretary L 1428-156-6543 AGENT: PHONE: MURRAY INSURANCE ASSOOIATES, INC. 39 N. Duke Street Lancaster, PA 1760Z 717/397/9600 FAX 717/397/2218 RENOVATIONS AND ADDITIONS TO .THE EAST PENNSBORO AREA[~IGH SCHOOL - #990 I 2. The Surety hereby waives notice ol and e. onsents (a) to all alterations or amendments to the Contract and Co) to all extensions of time for performance of the Contract or other forbearance; and the Surety a~ees that its obligations under this Bond shall not thereby be released or affected in any manner. 3. The Surety shall not be liable under this Pa>~nen! Bond in the aggregate in excess ~f~he sum above stated. SIGNED and SEALED this Chad C. Graybili, g~ecretary JAY R. REYNOLDS, INC. ay~R./Rlynol'ds, ~jident ' Tl~ed Name/Tith Include information on separate sheet indicating Sure~y agent, physical address, phone and facsimile numbers. PAYMHNT BOND 00615 - 2 Exhibit C This Agreement, Made this 26th day of September, 2000 by and between Hutton & Riggs Insulation, RD #5, Box 210, Bloomsburg, PA, 17508-0368, hereinafter called the Subcontractor and Jay R. Reynolds, Inc., P. O. Box 326, Willow Street PA 17584 hereinafter called the contractor. ' Project: Renovations & Additions to Claremont Nursing and Rehabilitation Center Contract No. 4 - Plumbing Carlisle, PA Owner: Architect: Commissioners of Cumberland County One Courthouse Square Carlisle, PA 17013 IBA, Inc. 200 Airport Road New.Cumberland, PA 17070 Engineer: IBA, Inc. 200 Airport Road New Cumberland, PA 17018 The Contractor and Subcontractor agree as set forth below. 1. CONTRACT DOCUMENTs: a. The Contract Documents for this Subcontract consist of the Agreement and any Exhibits attached hereto, the Agreement between the Owner and Contractor dated August 17, 2000, the conditions of the Contract between the Owner and Contractor, all Drawings, all Specifications, and all Addenda issued prior to execution of the Agreement between the Owner and Contractor and all Modifications issued subsequent thereto. b. Ail of the above documents are a part of this Subcontract, have been reviewed by the Subcontractor and shall be available for use by the Subcontractor upon his request. 2. WORK TO BE PERFORMED: The Subcontractor and the Contractor agree that the materials to be furnished and work to be done by the Subcontractor are: Furnish all labor and material for the plumbing insulation in accordance with all plans, specifications and Addenda ~1 through #3. Install lay guard insulation kits provided by Jay R. Reynolds, Inc. TIME OF C'DMMENCEMENT A/gD COMPLETION OF WORK: a. The Subcontractor agrees to commence his work on notice and shall complete his work by August 17, 2002 in accordance with the prQject schedule. For failure to commence and complete his work on time, the Subcontractor shall be subject to damages and remedies by the Contractor as set forth in other portions of this Agreement. CONSIDERATION: The Contractor agrees to pay the Subcontractor for the performance of his work the sum of Thirty-two thousand five hundred Dollars ($32,500.00} 'in current funds, sub.ject to additions and deductions for such chang'es as may be agreed .upon in writing and approved in writing by the owner, project engineer, or architect, said sum to be paid as follows: (1) The Contractor shall pay the Subcontractor monthly progress payments in the amount of 90 percent of the Application submitted. Applications shall be in writing and shall be submitted to the Contractor on or before the 15th day of each month. (2) The Subcontractor shall, before the first application, submit to the Contractor a schedule of values of the various parts of the Work aggregating the total sum of this Subcontract, made out in such detail as the Subcontractor and Contractor may agree upon, or as required by the Owner, and supported by such evidence as to its correctness as the Contractor may direct. This schedule, when approved by the Contractor, shall be used as a basis for Applications for Payment, unless it be found to be in error. In applying for payment, the Subcontractor shall submit a statement based upon this schedule. (3) If payments are made on account of materials or equipment not incorporated in the Work but delivered and suitably stored at the site, or at some other location agreed upon in writing, such payments shall be in accordance with the terms and conditions of the Contract Documents. (4) Unless otherwise provided in the Contract Documents, the Contractor shall pay the Subcontractor each progress payment within 15 working days after the Contractor has received payment from the Owner for labor and material covered in the Application submitted by the Subcontractor. (b) FINAL PAYMENT: (i) Subcontractor shall submit to Contractor a statement signed by the job superintendents of Contractor and Subcontractor, stating that all work covered by this Subcontract has been satisfactorily completed and performed. Upon receipt of said statement, the final payment shall be paid by the Contractor to the Subcontractor within 15 days after the Contractor shall have received the final payment from the Owner on the Prime Contract. (2) Receipted Invoices and Affidavit: As a further condition of progress payments and final payment, the Contractor may require the Subcontractor to furnish receipted invoices for all materials incorporated into the work or placed on the job site, supported by {he affidavit of the Subcontractor setting forth that all claims for labor and material have been paid, with the names and addresses of all laborers and materialmen listed. (3) No certificate given or payment made under this contract, except the final certificate or final payment shall be conclusive evidence of the performance of this contract, either wholly or in part, and no payment shall be construed to be an acceptance of defective work or improper materials. PERFOPd~A_NCE, IJkBORAND MATERIJkL PAYR4ENT BONDS: TEMPORARY FACILITIES .AND SERVICES: The Contractor shall furnish and make available at no cost to the Subcontractor the following temporary facilities and services: NONE REQUIRED all other necessary services and facilities are the responsibility of the Subcontractor. SUBCONTRACTOR'S RESPONSIBILITIES: (a) (b) (c) (d) (e) (f) (g) The Subcontractor agrees: To be bound to the Contractor by the terms of this Agreement and of the Contract Documents between the Owner and Contractor, and shall assume toward the Contractor all the obligations and responsibilities which the Contractor, by those Documents, assumes toward the Owner, and shall have the benefit of all rights, remedies and redress against the Contractor which the Contractor, by those Documents, has against the Owner, insofar as applicable to this Subcontract, provided that where any provisions of the Contract Documents between the Owner and Contractor is inconsistent with any provisions of this Agreements, this Agreement shall govern. To submit to the Contractor applications for payment in such reasonable time as to enable the Contractor to apply to the Architect for payment. To make all claims for extras, for extensions of time and for damages for delays or otherwise, to the Contractor in writing before proceeding to execute such work. That this Subcontract shall not be assigned unless the Contractor shall first consent thereto in writing. To take out and pay for Employer's Liability or Worker's Compensation Insurance as required by the State in which the work is being performed. To pay all social security, unemployment compensation, sales or other taxes or charges assessed against the wages or salary of the Subcontractor's employees or officers or against any materials used in the performance of this Subcontract. To indemnify the Contractor against the claims of all materialmen and employees of the Subcontractor, includi~lg Court costs and attorney's fees incurred i~ the defense3 of any litigation instituted by any officer, employee, laborer or materialmen of the Subcontractor, to 'which the Contractor is made a party.. other instruments that may be required to release the Structure from any and all clx' demands, suits, or whatever kind or nature, arising out of the performance of this ims, Subcontract. ('i) To provide adequate insurance to protect all persons not employed by the Subcontractor against claims for damages for personal injury including death, which may arise out of the performance of this Subcontract or by or on account of any act or omission of said Subcontractor, its employees or agents. Certificates of such insurance shall be furnished to the Contractor. (j) To comply with all laws, orders or regulations of the Federal, State or Local Government or of any of their respective, subordinate agencies, departments or commissions, applicable to the performance of this Subcontract. (k) That no payment shall be made hereunder unless all work schedules to be performed in a substantial and workmanlike manner, and until the Subcontractor has deposited with the Contractor satisfactory releases of liens and claims for liens of all laborers and materialmen, and all other persons in any way performing service or furnishing labor or materials to the Subcontractor on account of this Subcontract for the work in question. (1) That any work done or material furnished failing in the requirements of the Plans, Specifications and this Subcontract, will be removed from the premises and replaced by the Subcontractor at his expense. (m) That time is of the essence of this Subcontract. (n) To furnish, in form approved by the Contractor, and if specified under paragraph 5 or elsewhere herein a completion or other bond providing for the payment of all wages and materials. (o) To furnish to the Contractor, upon request, the names and addresses of all Subcontractors and materialmen, together with amounts due or to become due them and to furnish and cause Subcontractors to furnish upon request of the Contractor and on forms furnished by the Contractor, such reports concerning wage scales, payrolls, and otherwise, as the Contractor may require. (p) That no changes from the Plans and Specifications shall be made, and that no extras shall be performed, unless a separate agreement in writing shall have been made before the commencement of such work or the furnishing of materials. Unless otherwise provided herein, the Contractor will not recognize orders for changes or extras given by employees or representatives of the Contractor on the job. (q) To protect and save harmless the said Contractor against any claim or demand of any persons or property for damage caused hereunder, or any claim or demand for patent fees, royalties or for any invention, machine, article or arrangement that may be used by the Subcontractor in the construction of the work, and agrees to defend any and all actions arising out of any of the foregoing claims; to notify the Contractor of all such claims; to defend it, and pay counsel fees and expenses of all kinds whatsoever in connection therewith; and the Subcontractor further agrees that in event of any injunction or legal action, serving to stop the work, the Contractor shall have the privilege of substituting such other articles of similar kind in order to enable the Subcontractor or to complete the work, and all costs and expense occasioned thereby shall be borne by the Subcontractors. (r) To notify the Contractor in writing or by shop drawings of any special provisions required of the Contractor for the installation of the work to be done by the Subcontractor that are not shown on the plans and specifications in detail, in sufficient time to allow the Contractor to make these special provisions as the project progresses. In the event the Subcontractor fails to so notify the Contractor, it shall be the responsibility of the Subcontractor to bear the expense for all changes required to properly install his work. (s) Subcontractor shall be responsible for any deviations from the drawings or the specifications, unless the Subcontractor has, in writing, notified the Contractor of such deviations, giving reasons therefore, at the time of submission of preliminary or final shop drawings. (t) To take all'reasonable safety precautions with respect to his Work, to comply with all safety measures initiated by the Contractor and with all applicable laws, ordinances, rules, regulations and orders of any public authority for the safety of persons or property in accordance with the requirements of the Contract Documents. The Subcontractor shall report to the Contractor immediately any injury to any of the Subcontractor's employees at the site. (u) That all materials and equipment furnished and incorporated by him in the Project shall be new unless otherwise specified, and that all Work under this Subcontract shall be of good quality, free from faults and defects and in conformance with the Contract Documents. All Work not conforming to these standards may be considered defective. This warranty shall' be in addition to and not in limitation 'of any other warranty Or remedy required by law or by the contract Documents. (v) Promptly submit shop drawings and samples as required in order to perform his work efficiently, expeditiously and in a manner that will not cause delay in the progress of the Work of the Contractor or other Subcontractors. (w) 'Fo comply with all laws and regulations (state and federal) relating to wages, hours, overtime, record-keeping, equal employment opportunity, etc they apply to this p~oject. . as 10. CONT~CTOR'S RESPONSIBILITIES: The Contractor agrees: To be bound to the Subcontractor by the terms of this agreement and of the Contract Documents between the Owner and the Contractor and to assume toward the Subcontractor all the obligations and responsibilities that the Owner, by those Documents, assumes toward the Contractor, and to have the benefit of all rights, remedies and redress against the Subcontractor which the Owner, by those Documents, has against the Contractor, insofar as applicable to this Subcontract, provided that where any provision of the Contract Documents between the Owner and the Contractor is inconsistent with any provision in'.this Agreement, this Agreement shall govern. (b) To promptly notify the Subcontractor of all modifications to the Contract between the Owner and the Contractor which affect this Subcontract and which were issued or entered into subsequent to the execution of this Subcontract. (c) That if he fails to make payments to the Subcontractor as herein provided for any cause not the fault of the Subcontractor, within seven days from the time payment should have been made, the Subcontractor may, upon seven days' additional written notice to the Contractor, stop his Work without prejudice to any other remedy he may have. (d) To make no demand for liquidated damages for delay in any sum in excess of such amount as may be specifically named in this Subcontract, and no liquidated damaoes shall be assessed against this Subcontract for delays or causes attributed to other Subcontractors or arising outside the scope of this Subcontract. (e) That no claim for payment for services rendered or materials and equipment furnished by the Contractor to the Subcontractor shall be valid without prior written notice to the Subcontractor. (f) To cooperate with the Subcontractor in scheduling and performing his Work to avoid conflicts or interference in the Subcontractor's Work. (g) To permit the Subcontractor to be present and to submit evidence in any arbitration proceeding involving his rights. ACCEPTA/~CE: The Contractor and the Subcontractor agree that: (a) If on the date of the execution of this Subcontract, the Prime Contract between the owner and the Contractor has not yet been executed, then if such Prime Contract shall not be so executed and delivered, for any reason whatsoever, the Contractor shall be under no obligation to the Subcontractor herein by virtue of this Subcontract. (b) If the Prime Contract for the project herein mentioned is with the Federal or State Government, or any of their subdivisions, agencies, or representatives, this subcontract shall be subject to any right of termination contained in such Prime Contract. In the event of such termination allowance which shall be made to it by the Government for the work covered herein, less the proportionate share of the Contractor's overhead allocated thereto. (c) In the event the Subcontractor is not acceptable to the Owner and/or the Architect for any reason whatsoever, the Contractor shall be under no obligation or responsibility to the Subcontractor, and this Subcontract sha.ll become null and void. (d) Before the commencement of any work the parties shall furnish to each other copies of all collective bargaining agreements to which either of them may be a party and which pertain to any labor to be performed on the project. TERMINATION FOR FAILURE TO WORK: Should the Subcontractor fail to prosecute the work to the satisfaction of the Contractor, or should he at any time become insolvent, or refuse to follow the Plans and Specifications, or fail to perform the work in a good and workmanlike manner, or cause by any action the stoppage of the work of other subcontractors performing work upon this property, or fail to comply in any other respect with this subcontract; then, upon the happening of the foregoing events, or any one of more of them, the Subcontractor agrees that the Contractor may, by three days' written notice mailed to the subcontractor at his last known residence or place of business, or notice delivered at such place, or to the foreperson in charge of the work, terminate this Subcontract and take over the work and prosecute the same to completion by contract or otherwise, and enter into and take possession of the work, materials, tools, appliances and equipment needed to complete such work, and make such payment as the Contractor deems necessary for the discharge in whole or in part of the claims, liens or claims for liens, of any person in privity with the Subcontractor on account of this Subcontract; and the Subcontractor agrees that the expense of such notice and of the completion of such work, and the amount paid for the discharge or payment on account of claims, liens, or claims for liens, and the expense thereof, shall be deducted from the amount due or to become due the Subcontractor, and if more than the amount due, then the Subcontractor shall be liable to the .Contractor for the difference, and the Contractor may hold, sell or otherwise realize upon any material, machinery,-tools', or other equipment upon the premises on account of such differehce in case the Subcontract shall fail or refuse to pay the same; all without prejudice to any other remedy the Contractor may have. If the Subcontractor shall abandon the work, the Contractor shall be under no obligation to give any notice whatsoever prior to taking over the work. 11. 12. 13. LIENS AND CLAIMS: The Subcontractor hereby expressly waives, releases and relinguishes any and all right to maintain, or have filed or maintained any mechanic's lien or claim against the aforesaid premises, or any part thereof, or any building or buildings thereon, for or on account of any work, labor and materials performed or furnished under this agreement, and agrees that no such lien or claim shall be so filed or maintained by or on behalf of the Subcontractor; and the Subcontractor further agrees to save the Contractor harmless from the lien or claim for liens against the aforesaid premises or any part thereof, or any buildings thereon, of any subcontractor, or any persons acting through or under the Subcontractor, and agrees, that if at any time there shall be any evidence of the filing or maintenance of any such lien or claim for lien the Contractor shall have the right to deduct from the amount otherwise due to the Subcontractor hereunder, an amount sufficient to indemnify it for any or all loss or damages which may result from such lien or claim; and the Subcontractor further agrees that this waiver shall be an independent covenant, and shall operate and be effective, not only with respect to materials furnished or labor performed under this subcontract, but also with respect to any and all materials furnished or labor performed under any subcontract supplcrtental to this principal subcontract, and under ~ny subcontract for extra labor or materials for the above described premises. EXCLUSIVITY: This Doctunent includes all the agreements between the Contractor and the Subcontractor for the specific Project named herein, and any changes hereto shall be made in writing and executed by both the Contractor and Subcontractor. 2%DDITIO~tAL TEP~4S: (a) The Subcontractor shall submit one copy of: Form No. G805 "List of Subcontractors" or Form No. GSC-23 "Request for Approval of Materials and/or Subcontractors" This form is used to identify each item of material or a subcontractor which will be used in the project. The items shall be listed using the title as shown in the specifications and reference the specification section, page and paragraph along with the applicable manufacturer or subcontractor's complete name and address. (b) The Subcontractor under this Subcontract Agreement shall be subject to the approval of the Owner, Architect and Engineer. In the event the Owner, Architect or Engineer refuses to approve the Subcontractor, for whatever reason, the agreement may be canceled by the Contractor with no liability on the part of the Contractor. (c) Kindly submit 10 copies of submittal data, as required by the specifications for approval within 5 days. Each item shall be identified by title, section, page and paragraph nuntber given in the Specifications. Do not release materials or proceed until after you have received proper approvals. (d) After approvals, kindly submit 4 sets of operating and maintenance instructions for all materials supplied. The instructions shall consist of data supplied by the manufacturer giving complete information on the following: (1 Identify each item per title in the Specifications and reference the page and paragraph number. (2 Installation procedures. (3 Operating instructions. (4 Maintenance instructions. (5 Detailed parts list. (6 Recommended spare parts. (7) Address and telephone numbers of nearest supplier for each item. (e) Ail material and equipment furnished under this Subcontract Agreement shall be guaranteed by the Subcontractor to the Contractor and Owner to be fit and sufficient for the purpose intended. (f) Subcontractor shall submit Weekly Payroll Certification, Form LIPW-128, to this office weekly. Monthly payments will be withheld until received. Copies of these forms will be forwarded to you. (g) Provisions of the contract requiring compliance with: (1) Prevailing Minimum Wage Predetermination (if applicable) (2) Equal Opportunity Employment (3) Buy funerican Act (4) Pennsylvania Steel Products Procurement Act (5) Non-Discrimination Clause Agreement (see attached Exhibit "A") . h) Ail sales and use taxes are included in the Subcontract Agreement amount. The Subcontractor agrees and consents to all additional terms and conditions set forth above. IN ~ITNES~ WHEREOF, they have hereunto set their hands the day and year first above written. Attest: ~/~~ ~ ~~/ Valerie W. Boos ' - Contractor: .. Jay R. Reynolds, Inc. Brian K. Martin, Project Manag Subcontractor: '~.~. ?~/. By: ' ,~.~ [VAL\ I 106\SubcontractHutton] --RECORD OF TELEPHONE AND VERBAL QUOTATIO}? Quoted By: ~7' Phone No: 57.-3g%-0988 Bid Taken By: ~' ~-V~ Date: f- 7-00 Time: Addendas: Alternate Bids: Is sales tax included: Any exceptions to plans & specs:., QUA/TrIX"f . / DESCRIPTION I UNIT BID I TOTAL BID ;t:;z, ~oo ! I I ! I I Are these your best prices? [ MAS TE R / FORMS/QUOTE S ] Revised Form Date 9-16-93 Exhibit Payment Bond AIA Document A31 2 - Electronic Format CONTR. ACTOR r,x~.:,,.'_' ~-,,d JAY R. REYNOLDS, INC. 1 Brooks Avenue - P. O. Box 326 Willow Street, PA 17584-0326 0 W~ ER. [',Varec and ,4ddcess): COUNrY OF CUMBERLAND One Courthouse Square Carlisle, PA 17013 SURETY [:Vcmc aaa' Prmct?.ai .o!acc of Bttsme.r:;: FIDELITY AND DEPOSIT COMPA~ OF MARYLAND 200 Be. rwyn Park - Su1 te 105 Berwyn, PA ].9312-1187 CONSTRUCTION CONTRACT Date: August 17, 2000 Amount: SIX ~ FIFtY-FOUR THOUSAND FIVE HUNDR~ .~ID 00/100 ($654,500.00) Description ,',va,,,e o,,a' Location/: Contract No. 4 - Plumbing - Renovations to The Clarm, ont Nursing and Rehabilitation Center, 375 Clarmont Drive, Carlisle, PA 17013 BOND Date (Not cartier than Construction Contract Date): August 23, 2000 Amount: SIX HUNDRED FIFI'Y-FOUR THOUSAND FIVE HUNDRED AND 00/100 Modifications to this Bond: iX] None CONTtLACTOR AS PRANC[PAL Company: (Corporate Seal) JAY R. REYNOLDS, INC. ($654,500.00) [ ] See Pag.~ SURETY Coml:anv: MARYLA(N%C o rporate Seal) FIDI!~Li'~fY AND DEPOSIT COMPAN~ OF Name and T~le: Luella G. Kauffman//) Attorney-in-Fact (Any additional signatures appear on the l~t page) (FOR iNFOR~fA TION ONLY- Name, Address and Telephone~ AGENT or BROKER: MURRAY 1-NSURANCE ASSOCIATES, INC. 39 N. Duke Street, Lancaster, PA (717) 397-9600 17602 OWNER'S REPRESENTATIVE (Architect, Engineer or other part5.'): AIL DOCUMENT A312- PERFORMANCE BOND AND PAYMENT BOND · DECEMBER 19114 ED. · AIL ~, THE AMER. ICAN INSTITUTE OF ARCHITECTS. I.'35 NEXt,' YORK AVENUE. N.W.. WASHINGTON. D.C.. 20006-5292 · THIRD PRINTING · MARCH 1987. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subj::t to legal prose:ution. This document w~ cleo:toni:ally produc:d with p=rmission of the Al,\ and can b: r:produced xvithout violation until :he date of expiration as noted b=low. Electronic Format A3 I2- 1954 Use.- Document: A312.CON -- I i,"I 1,'1999. AIA License Numb.~r 100918. which expires on I,'7:'2000 -- Page =5 'I The Contractor and the Surety, jointly and severally bind the.rose!yes, their heirs, executors, administrators, successors and ~,,l_n, to :ne Owner to pay for labor, materia!s and equi.c,'-n~'nt furnished for use in the performance of the Const."'Jc:ion Contrac:. which is incorporated herein by rer~re.q ce. 2 \Vith respect to the Owner. this obligation shall be null and void if the Cont'ractor: 2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants. and 2.2 Defends, indemnifies and holds harmless the Osvner from claims, demands, liens or suits by any person or entity, whose claim, demand, lien or suit is for the payment for labor, materials or equipment furnished for use in the performance of the Construction Contract, provided the Owner has promptly notified the Contractor and the SureD. (at the address described in Paragraph 12) of ans. claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to the Contractor and the SureD,, and provided there is no Owner Default. 3 With respect to Claimants. this obligation shall be null and void if the Contractor promptly makes payment, directly or indirectly, for all sums due. 4 The Surety. shall have no obligation to Claimants under this Bond until: 4.1 Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond'and, with substantial accuracy, the amount of the claim. 4.2 Claimants who'do not have a direct contract with the Contractor: .1 Have furnished written notice to the Contractor and sent a copy, or notice thereof, to the Owner, within 90 days after having last performed labor or last furnished materials or equipment included in the claim stating, with substantial accuracy, the amount of the claim and the name of the party, to whom the materials were furnished or supplied or for whom the labor was done or performed; and .2 Have either received a rejection in whole or in paa from the Contractor, or not received within 30 days of furnishing the above notice an,.' communication from the Conn',actor by which the Contractor has indicated the claim will be paid directly or indirectly; and .3 Not having been paid within the above 30 days. have sent a written notice to the Sure .tS, (at ;he address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and enclosing a copy of the previous wrirten notice furnished to the Contractor. 5 If a notice required by Paragraph 4 is given by the Owner to the Contractor or to the Surety., that is sufficient compliance. 6 When the Claimant has satisfied the conditions of Paragraph 4, the Surety shall promptly and at the Sureto."s expense take the following actions: ~.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for[ challenging any amounts that are disputed. 6.2 Pay or arrange for payment of any undisputed i~mounts. 7 The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. 8 Amounts owed by the Owner to the Contractor undes,,the Construction Contract shall be used for the performanc, of the Construction Contract and to satis~ claims, if any, under any Construction Performance Bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and the Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. 9 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claimant under this AIA DOCUMENT A312- PERFOI~MANCE BOND AND PAYMENT BOND · DECEMBER 1981 ED. · AIA ®- THE AMERICAN INSTITUTE OF ARCHITECTS. 1735 NEW YORK AVENUE, N.W., WASHrNGTON. D.C., 20006-5292 · THIRD PRINTING · MARCH 1997. WARNING; Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with pcmaission of thc AIA and can be rcproduc::d '.vlthout violation until thc date o£cxpiration as noted below. Electronic Format A312-1984. User Document: A312.CON -- I 1:'11/1999. AIA License Number 100918. which expires on 1/7.'2000 -- Pa_.qe ~'6 - Bon,d, and s~halI have under this Bond no obligations to m,.~k.e payments to. give notices on behalf of, or otherwise have obligations to Claimants under this Bond. '10 The Surev hereby waives notice of any change, in:!uding changes of time. to the Construction Contra:: or to reiate:i subcontracts, purchase orders and other obligations. 11 No suit or as:ion shall be ..... ,~ ,-a,,,m~n~_~ by a Claimant under this Bond other than in a court, of competent jurisdiction in the location in which the work or p~ of the work is located or after the expiration of one year fi.om the date Iii) on which the Claimant ~_av." the notice reouired, by Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of(l) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable 12 Notice to the Surety., the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, the Owner or the Contractor, however accomplished, shall be sufficient cornpiiance as of the date received at the address shown on the signature page. 13 When this Bond has been furnished to comply with a statutory, or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory, or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory, or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutoD' bond and not as a common law'bond. MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: 14 Upon reouest bv ans' person or entl~' aopearino to be a potential beneficiao' of this Bond, the Contractor s~,all promptly furnish a copy of this Bond or shall pe.,"mit a cop3, to be made. 15 DEFINITIONS 15.1 Claimant: An individual or entity having a direst contract with the Contractor or with a subzon~ac~or of the Contractor to furnish labor, materials or equipment for use in the performance of the Contract. The intent of this Bond shall be to include without limi;ation in the terms "labor. materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construmion Contract. architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. 15.2 Construction Contract: The agreement benveen the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto. 15.3 Owner Default: Failure of the Owner. which has neither been remedied nor waived, to pay the Contractor as required by the Construction COntract or to perform and complete or comply with the other re,was thereof. (Space is provided below for additional signatures of added parties, other than those appearing on the cov, r page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Signature: Name and Title: Name and Title: AIA DOCUMENT A312- PERFORMANCE BOND AND PAYMENT BOND - DECEMBER 1984 ED. - AIA :~,- THE AMERICAN INSTITUTE OF ARCHITECTS. 1735 NEW YORK AVENUE. N.W.. WASHINGTON. D.C.. 20006-5292 - THIRD PRiNTING · MARCH 1987. WARNING: Unlicensed pi~otocopyin_".3 violates U.S cnpyright laws and is subje:t ~o I:_gal prosecution. This docum:nt was el:c:ronically produced with permission or' th: AIA a.d :an be r:prOduz.:d without violation until l. ht: da~: ot'expiration ~ noted b=low. Electronic Format A312-198-'. User Document: A312.CON -- 1 l:'l 1/1999. AIA License Number 100918, which expires on 1.'7,'2000 -- Page =- Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAND HOME OFFICE: P.O. BOX 1227, BALTIMORE, MD 21203-1227 Know ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND. a corporation of the State of Maryland. by W. B. WALBRECHER. Vice-President. and T. E. SMITH. Assistant Secretary. in pursuance of authority granted by Article VI. Section 2, of the By-Laws of said Company. which are set forth on the reverse side hereof and are' hereby certified to be in full force and effect on the date hereof, does hereby nominate, constitute and appoint Joseph P. Nolt, Dennis Dvorchak, Luella G. Kauffman, David R. Bradbury, Anthony M. Macinanti and Debra L. Rineer, all of Lancaster, Pennsylvania. EACH its true and lawful a~ent and Attorney-in-Fact. te.O.~.a...k~el e_~e_cu~e: sea. I and d.e!iv.e.r, for., and on its b?.atf as surety, and_ as'its act and d?d: any and all bonds~and undertakings and the x~u,u, msucn oonos or unuert~mgs m pursuance otmese presents, sh~d-K~ as bind ng u~aid Compan). as fully and amply, to all intents and purposes, as if they had been duly executed and acknowledoed by the reo. e~lected offi~he Company at its office in Baltimore. Md.. in their oxvn proper persons. This power of attorney revokes that issued o~ beh~s-eph P. Ng~..~dated September 9. 1996. The said Assistant Secretao' does hereby certify that the extract.~4~t~ on the r~de hereof is a true cop)' of Article VI. Section 2. of the By-Lav,'s of said Company, and is now in force. ^(l,~"x~.) ~<.~.~,~x,b~ IN WITNESS WHEREOF. the said Vice-President and Ass' '3,3~cretarv haff~(~nto sub~c4~ ,~ ...................... the -ai~ "'""-"~ .................. , ~,..~-<.. ~ -,AT<',zy' o · ~u ,.~..a,.~ ,mu amxcu me ~orporate heal oI ~ u FILtI::,L,I/I AINI) DLVUbll COMPANY OF M~,RY~ this 24th d~eptember. A.D. 1997. ATTEST: FIDELITY Ac~.b2EPOSIT ~.~ANY OF MARYLAND Coun~ofBaltimore ff '%,~"-~^q'~'~ On this 24th day of September. A.D. 1997, bcfor~th~scriber? a Nota~/Public of the State of Mal!lai-~d, duly commissioned and qualified, came W. B. WALBRECHER. Vice-President ~nd T. E..,,.~I~ Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to me personally known to be the individuals and o,,tlke-~'-~described in and who executed the preceding instrument, and they each acknowledo~ed the execution &the same. and bein~ bv me duly~"~.everallv and each for himself deposeth and saith, that the}' are the said officers &the C~mpany aforesaid, and that the seal affixed to the pre-'~ng instrun~ent is the Corporate Seal of said Companv, and that the said Corporate Seal and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporation. IN TESTIMONY WHEREOF. I have hereunto set my hand and affixed my Official Seal the day and year first above written. Cardl J. Fader /~ Notary Public CERTIFICATE I, the undersigned, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY' OF MARYLAND. do hereby certify that the original Power of Attorney of which the foregoing is a full, true and correct cop)', is in full force and effect on the date of this certificate: and I do further certify that the Vice-President who executed the said Power of Attorney was one of the additional Vice-Presidents specially authorized by the Board of Directors to appoint any Attorney-in-Fact as provided in Article VI, Section 2, of the By-Laws of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND. This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board &Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meetino duly called and held on the 10th da,,' of May - . . , 1990. RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facmmde or mechanically reproduced signature of any Vice-President, Secretary, or Assistant Secretary. of the Company, whether made heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and bindin2 upon the Company with the same force and effect as thou2h manually affixed." ' - - . IN TESTIMONY WHEREOF, 1 have hereunto subscribed my name and affixed the corporate seal of the said Company. this 23rd day of August Assistant Secretary ' L1428-156-6543 EXTRACT FROM BY-LAWS OF FIDELITY AND DEPOSIT COMPANY OF MARYLAND "Article VI. Section 2. The Chairman of the Board, or the President, or any Executive Vice-President, or any of the Senior Vice- Presidents or Vice-Presidents specially authorized so to do by the Board of Directors or by the Executive Committee, shall have power. by and with the concurrence of the Secretary. or any one of the Assistant Secretaries, to appoint Resident Vice-Presidents, Assistant Vice-Presidents and Attorneys-in-Fact as the business of the Company may require, or to authorize any person or persons to execute on behalf of the Company any bonds, undertakings, recognizances, stipulations, policies, contracts, agreements, deeds, and releases and assignments of judgements, decrees, mortgages and instruments in the nature of mortgages .... and to affix the seal of the Company thereto. ' ~ Exhibit E SUBCONTRACT Tili$~i~reelllent, Made this 16th day of September, 1999 by and between Hutton & Riggs Insulation], RD ~5, Box 210, Bloomsburg, [~A 1-;815, hereinafter called the Subcontractor and Jay R. Reynolds, Inc., p. O. Box 326 Willow Street, PA contractor. ' 1758~ hereinafter called the Project: Additions & Alterations to the Milton Middle and High School Milton, PA Plumbing Construction Owner: Milton Area School District 700 Mahoning Street Milton, PA 17847 Architect: Hayes Large Architects Logan Boulevard & 5~h Avenue P.O. Box 1784 Altoona, PA 16603 Engineer: H.F. Lenz Company 1407 Scalp Avenue Johnstown, PA The Contractor and Subcontractor agree as set forth below. 1. CONTRACT DOCUMENTS: a. The Contract Documents for this Subcontract consist of the Agreement and an}, Exhibits attached hereto, the Agreement between the Owner and Contractor dated September 9, the conditions of the Contract between the owner and Contractor, all Drawings, all 1999, Specifications, and all Addenda issued prior to execution of the Agreement between the Owner and Contractor and all Modifications issued subsequent thereto. b. All of the above documents are a part of this Subcontract, have been reviewed by the Subcontractor and shall be available for use by the Subcontractor upon his request. WORK TO BE PERFORb~ED: The Subcontractor and the Contractor agree that the materials to be furnished and work to be done by the Subcontractor are: Furni.~;h and install the plumbing insulation in accordance with Specification Section 15440 in its entirety and a].l applicable plans and other applicable specifications and Addendums 1 through 4, including Alternate P-1. TIPIE OF COMPIENCEMENT AND COMPLETION OF WORK: a. The Subcontractor agrees to commence his work on notice and shall complete his work as the job progresses in accordance with the project schedule or shgll occur sooner. For failure to co~unence and com[~lete ;]by July 15, 2001, whichever is work on time, the Subcontractor Shall be subject to damages and re~h~d'ies by the Contractor as set forth in other portions of this Agreement. '- · CONSIDERATION ~ The Contractor agrees to pa]~ the Subcontractor for the performance of his work the Sum of Sixty-Two Thousand Dollars ($62,000.00) Jn Current funds, subject to additions and deductions for such changes as' may be agreeJ upon -in writing and approved in writing, by the owr~e'.r, project engineer, of arc. hitect, said~sum to be paid as follows: Ia) PROGRESS PAY~'-IENTS: (1) The Contractor shall pay the Subcc.~tractor mor~thly progress t:-a'~'ments in the ;~mo%int of 90 [,ercent el the App! ication .subm] trod. A[~[]] [cations shall be ]ri writing an¢] shall bo submitted %o the Contr.]eke[ on o~ b~3for~ the 20 da~, of each mot]th. _ (2) The Subcontractor shall, before the first application, submit to the Contractor a schedule of values of the various parts of the Work aggregating the total stun of this Subcontract, made out in such detail as the Subcontractor and Contractor may agree upon, or as required by the Owner, and supported by such evidence as to its correctness as the Contractor may direct. This schedule, when approved by the Contractor, shall be used as a basis for Applications for Payment, unless it be found to be in error. In applying for payment, the Subcontractor shall submit a statement based upon this schedule. (3) If payments are made on account of materials or equipment not incorporated in the Work but delivered and suitably stored at the site, or at some other location agreed upon in writing, such payments shall be in accordance with the terms and conditions of the Contract Documents. (4) Unless otherwise provided in the Contract Documents, the Contractor shall pay the Subcontractor each progress payment within 14 working days after the Contractor has received payment from the Owner for labor and material covered in the Application submitted by the Subcontractor. (b) FINAL PAYMENT: (1) Subcontractor shall submit to Contractor a statement signed by the job superintendents of Contractor and Subcontractor, stating that all work covered by this Subcontract has been satisfactorily completed and performed. Upon receipt of said statement, the final pavement shall be paid by the Contractor to the Subcontractor within 14 days after the Contractor shall have received the final payment from the Owner on the Prime Contract. (2) Receipted Invoices and Affidavit: As a further condition of progress payments and final payment, the Contractor may require the Subcontractor to furnish receipted invoices for all materials incorporated into the work or placed on the job site, supported by the affidavit of the Subcontractor setting forth that all claims for labor and material have been paid, with the names and addresses of all laborers and materialmen listed. (3) No certificate given or payment made under this contract, except the final certificate or final payment shall be conclusive evidence of the performance of this contract, either wholly or in part, and no payment shall be construed to be an acceptance of defective work or improper materials. PERFORbiA/qCE, I~%BORi~NI) MATERIi~L PAYMENT BONDS: NOT REQUIRED TEMPORARy FACILITIES ~ SERVICES: The Contractor shall furnish and make available at no cost to the Subcontractor the following temporary facilities and services: NOT APPLICABLE all other necessary services and facilities are the responsibility of the Subcontractor. SUBCONTRACTOR, S RESPONSIBILITIES: The Subcontractor agrees: (a) To be bound to the Contractor by the terms of this Agreement and of the Contract Documents between the Owner and Contractor, and shall assume toward the Contractor all the obligations and responsibilities which the Contractor, by those Documents, assumes toward the Owner, and shall have the benefit of ali ri · against the Contractor which the ~ .......... ~hts, remedies and redress · ~u,,tLd~tOr, Dy tt~ose Documents, has against the Owner, insofar as applicable to this Subcontract, provided that where any provisions of the Contract Documents between the Owner and Contractor is inconsistent with any provisions of this Agreements, this Agreement shall govern. To submit to the Contractor applications for payment in such reasonable time as to enable the Contractor to apply to the Ar. chitect for payment. To ma'ke all claims .for extras, for extensions of time and for damages for delays or otherwise, to the Contractor in writing before proceeding to execute such work. That this Subcontract shall not be assigned unless the Contractor shall first consent thereto in writing. To take out and pay for Employer's Liability or Worker's Compensation Insurance as required by the State in which the work is being performed. To pa.y all social security, unemployment compensation, sales or other taxes or charges assessed a~ainst the wages or salary of the Subcontractor,.s employees or officers or against any. materials used in the performance of this S'ubcontract.. · . To indemnify the Contractor against the claims of all materialmen and employees of the Subcontractor, including Court costs and attorney's fees incurred in the defense of any litigation instituted by any officer, employee, laborer or materialmen of the Subcontractor, to which the Contractor ~$ made a party. To furnish as a condition to obtaining Other instr~nents that may be required payments hereunder all releases, discharges or to release the structure from any and all claims, demands, ~uits, or whatever kind or nature, arising out .of the performance of this Subcontract. (c) (d) (e) (g) ti) To provide adequate insurance to protect all persons not employed by the Subcontractor against claims for damages for personal injury including death, which may arise out of the performance of this Subcontract or by or on account of any act or omission of said Subcontractor, its employees or agents. Certificates of such insurance shall be furnished to the Contractor. (j) To comply with all laws, orders or regulations of the Federal, State or Local Gover~nent or of any of their respective, subordinate agencies, departments or commissions, applicable to the performance of this Subcontract. (k) That no payment shall be made hereunder unless all work schedules to be performed in a substantial and workmanlike manner, and until the Subcontractor has deposited with the Contractor satisfactory releases of liens and claims for liens of all laborers and materialmen, and all other persons in any way performing service or furnishing labor or materials to the Subcontractor on account of this Subcontract for the work in question. (1) That any work done or material furnished failing in the requirements of the Plans, Specifications and this Subcontract, will be removed from the premises and replaced by the Subcontractor at his expense. (m) That time is of the essence of this Subcontract. (n) To furnish, in form approved by the Contractor, and if specified under paragraph 5 or elsewhere herein a completion or other bond providing for the payment of all wages and materials. (o) To furnish to the Contractor, upon request, the names and addresses of all Subcontractors and materialmen, together with amounts due or to become due them and to furnish and cause Subcontractors to furnish upon request of the Contractor and on forms furnished by the Contractor, such reports concerning wage scales, payrolls and otherwise, as the Contractor may require. ' (p) That no changes from the Plans and Specifications shall be made, and that no extras shall be performed, unless a separate agreement in writing shall have been made before the co~encement of such work or the furnishing of materials. Unless otherwise provided herein, the Contractor will not recognize orders for changes or extras given by employees or representatives of the Contractor on the job. (q) To protect and save harmless the said Contractor against any claim or demand of any persons or property for damage caused hereunder, or any claim or demand for patent fees, royalties or for any invention, machine, article or arrangement that may be used by the Subcontractor in the construction of the work, and agrees to defend any and all actions arising out of any of the foregoing claims; to notify the Contractor of all such claims; to defend it, and pay counsel fees and expenses of all kinds whatsoever in connection therewith; and the Subcontractor further agrees that in event of any injunction or legal action, serving to stop the work, the Contractor shall have the privilege of substitutinq such other articles of similar kind in order to enable the Subcontractor or to complete the work, and all costs and expense occasioned thereby shall be borne by the Subcontractors.' (r) To notify the Contractor in writing or by shop drawings of any special provisions required of the Contractor for the installation of the work to be done by the Subcontractor that are not shown on the plans and specifications in detail, in sufficient time to allow the Contractor to make these special provisions as the project progresses. In the event the Subcontractor fails to so notify the Contractor, it shall be the responsibility of the Subcontractor to bear the expense for all changes required to properly install his work. (s) Subcontractor shall be responsible for any deviations from the drawings or the specifications, unless the Subcontractor has, in writing, notified the Contractor of such deviations, giving reasons therefore, at the time of submission of preliminary or final shop drawings. (t) To take all reasonable safety precautions with respect to his Work, to comply with all safety measures initiated by the Contractor and with all applicable laws, ordinances, rules, regulations and orders of any public authority for the safety of persons or property in accordance with the requirements of the Contract Documents. The Subcontractor shall report to the Contractor immediately any injury to any of the Subcontractor's employees at the site. (u) That all materials and equipment furnished and incorporated by him in the Project shall be new unless otherwise specified, and that all Work under this Subcontract shall be of good quality, free from faults and defects and in conformance with the Contract Documents. All Work not conforming to these standards may be considered defective. This warranty shall be in addition to and not in limitation of any other warranty or remedy required by law'or by the Contract Documents. (v) · Promptly s~bmit shop drawings and samples as required in order to perform his work ~ - efficiently, expeditiously and in a manner that will not cause delay in'the progress of the Work of the Contractor or other Subcontractors. (w) To comply with all laws and requlations (state and federal) relating to wages, )]ours, overtime, record-keeping, equal ~?mplo~nent o~por~unit y, etc. as t:hey apply I:© this project. _ 10. CONTRACTOR'S RESPONSIBILITIES: .(a) The Contractor agrees: To be bound to the Subcontractor by the terms of this agreement and of the Contract Documents between the Owner and the Contractor and to assume toward the Subcontractor all the obligations and responsibilities that the Owner, by those Documents, assumes .toward the Contractor, and to have the benefit of all rights, remedies and redress against the Subcontractor which the Owner, by those Documents, has against the Contractor, insofar as applicable to this Subcontract, provided that where any provision of the Contract Documents between the Owner and the Contractor is inconsistent with any provision in this Agreement, this Agreement shall govern. (b) To promptly notify the Subcontractor of all modifications to the Contract between the Owner and the Contractor which affect this Subcontract and which were issued or entered into subsequent to the execution of this Subcontract. (c) That if he fails to make payments to the Subcontractor as herein provided for any cause not the fault of the Subcontractor, within seven days from the time payment should have been made, the Subcontractor may, upon seven days' additional written notice to the Contractor, stop his Work without prejudice to any other remedy he may have. (d) To make no demand for liquidated damages for delay in any sum in excess of such amount as may be specifically named in this Subcontract, and no liquidated damages shall be assessed against this Subcontract for delays or causes attributed to other Subcontractors or arising outside the scope of this Subcontract. (e) That no claim for payment for services renlared or materials and equipment furnished by the Contractor to the Subcontractor shall be valid without prior written notice to the Subcontractor. (f) To cooperate with the Subcontractor in scheduling and performing his Work to avoid conflicts or interference in the Subcontractor's Work. (g) To permit the Subcontractor to be present and to submit evidence in any arbitration proceeding involving his rights. ACCEPTANCE: The Contractor and the Subcontractor agree that: (a) If on the date of the execution of this Subcontract, the Prime Contract between the owner and the Contractor has not yet been executed, then if such Prime Contract shall not be so executed and delivered, for any reason whatsoever, the Contractor shall be under no obligation to the Subcontractor herein by virtue of this Subcontract. (b) If the Prime Contract for the project herein mentioned is with the Federal or State Gover~nent, or any of their subdivisions, agencies, or representatives, this subcontract shall be subject to any right of termination contained in such Prime Contract. In the event of such termination allowance which shall be made to it by the Government for the work covered herein, less the proportionate share of the Contractor's overhead allocated thereto. (c) In the event the Subcontractor is not acceptable to the Owner and/or the Architect for any reason whatsoever, the Contractor shall be under no obligation or responsibility to the Subcontrac.tor, and this Subcontract shall become null and void. (d) Before the commencement of any work the parties shall furnish to each other copies of collective bargaining agreements to which either of them may be a party and which pertain to any labor to be performed on the project. TERMINATION FOR FAILURE TO WORK: Should the Subcontractor fail to prosecute the work to the satisfaction of the Contractor, or should he at any time become insolvent, or refuse to follow the Plans and Specifications, or fail to perform the work in a good and workmanlike manner, or cause by any action the stoppag~ of the work of other subcontractors performing work u~0n this property, or fail to comply in any other respect with this subcontract; then, upon the happening of the foregoing events, or any one of more of them, the Subcontractor agrees that the Contractor may, by three days' written notice mailed to the subcontractor at his last known residence or place of business, or notice delivered at such place, or to the foreperson in charge of the work, terminate this Subcontract and take over the work and prosecute the same to completion by contract or otherwise, and enter into and take possession of the work, materials, tools, appliances and equipment needed to complete such work, and make such payment as the Contractor deems necessary for the discharge in whole or in part of the claims, liens or claims for liens, of any person in privity with the Subcontractor on account of this Subcontract; and the Subcontractor agrees that the expense of such notice and of the completion of such work, and the amount paid for the discharge or payment on account of claims, liens, or claims for liens, and the expense thereof, shall be deducted from the amount due or to become due the Subcontractor, and if more than the amount due, then the Subcontractor shall be liable to the Contractor for the difference, and the Contractor may hold, sell or otherwise realize upon an~ material, machinery, tools, or other equipment upon the pr~mises on account of such differe~c~ in case the Subcontract shall fail or refuse to pay the same; all without prejudice to any other remedy the Contractor may have. If the Subcontractor shall abandon the work, the Contractor shall be under no obligation to give any notice whatsoever prior to taking over work. 11. 12. 13. LIENS AND CLAIMS: The Subcontractor hereby expressly waives, releases and relinquishes any and all right to maintain, or have filed or maintained any mechanic's lien or claim against the aforesaid premises, or any part thereof, or any building or buildings thereon, for or on account of any work, labor and materials performed or furnished under this agreement, and agrees tha~ no such lien or claim shall be so fileu or maintained by or on behalf of the Subcontractor; and the Subcontractor further agrees to save the Contractor harmless from the lien or claim for liens against the aforesaid premises or any part thereof, or any buildings thereon, of any subcontractor, or any persons acting through or under the Subcontractor, and agrees, that if at any time there shall be any evidence of the filing or maintenance of any such lien or claim for lien the Contractor shall have the right to deduct from the amount otherwise due to the Subcontractor hereunder, an amount sufficient to indemnify it for any or all loss or damages which may result from such lien or claim; and the Subcontractor further agrees that this waiver shall be an independent covenant, and shall operate and be effective, not only with respect to materials furnished or labor performed under this subcontract, but also with respect to any and all materials furnished or labor performed under any subcontract supplemental to this principal subcontract, and under any subcontract for extra labor or materials for the above described premises. EXCLUSIVITY: This Document includes all the agreements between the Contractor and the Subcontractor for the specific Project named hereiD, and any changes hereto shall be made in writing and executed by both the Contractor and Subcontractor. ADDITIONAL TEP/~S: (a) The Subcontractor shall submit one copy of: Submission of Subcontractors and Sources of Materials This form is used to identify each item of material or a subcontractor which will be used in the project. The items shall be listed using the title as shown in the specifications and reference the specification section, page and paragraph along with the applicable manufacturer or subcontractor's complete name and address. (b) The Subcontractor under this Subcontract Agreement shall be subject to the approval of the Owner, Architect and Engineer. In the event the Owner, Architect or Engineer refuses to approve the Subcontractor, for whatever reason, the agreement may be canceled by the Contractor with no liability on the part of the Contractor. (c) Kindly submit 9 copies of submittal data, as required by the specifications for approval within 10 days. Each item shall be identified by title, section, page and paragraph nu~er given in the Specifications. Do not release materials or proceed until after you have received proper approvals. (d) Kindly submit 5 sets of installation instructions and rough-in information within 10 days. Each item shall be identified by title, section, page and paragraph number given in the Specifications. This is for the Owner's use. (e) After approvals, kindly submit 5 sets of operating and maintenance instructions for all materials supplied. The instructions shall consist of data supplied by the manufacturer giving complete information on the following: (1) Identify each item per title in the Specifications and reference the page and paragraph n~nber. (2 Installation procedures. (3 Operating instructions. (4 Maintenance instructions. (5 Detailed parts list. (6 Reconunended spare parts. (7 Address and telephone numbers of nearest supplier for each item. (f) All material and equipment furnished under this Subcontract Agreement shall be guaranteed by the Subcontractor to the Contractor and Owner to be fit and sufficient for the purpose intended. (g) Subcontractor shall submit Weekly Payroll Certification, Form LIPW-128, to this office weekly. Monthly payments will be withheld until received. Copies of these forms will be forwarded to you. Valerie W. Boos (h) Provisions of the contract requiring compliance with: .(1) Prevailing Minimum Wage Predetermination (if applicable) (2) Equal Opportunity Employment (3) Buy American Act (4) Pennsylvania Steel Products Procurement Act (5) Material on this order shall be in compliance with the Steel Products Procurement Act of March 3, 1978 and amended July 30, 1984, Act 144. (6) The Utilization of Disadvantaged Business Enterprises (DBE) covering both Women Owned Businesses and Minority Owned Businesses. (7) Non-Discrimination Clause Agreement (see attached Exhibit "A") . (i) All sales and use taxes are included in the Subcontract Agreement amount. The Subcontractor agrees and consents to all additional terms and conditions set forth above. IN WITNESS WHEREOF, they have hereuntc set t~%eir hands the day and year first above written. Contractor: .Jay R. Reynolds, Inc. By: Br ~n~z ~F,i t zGera ld , Proje._~ Mans Subcontractor: ~~ [VAL\1094\SUBCON'rhutlon&riggs] , ? Exhibit F ?AYME .NT BOND KNOW ALL MEN BY THESE PRESENTS that we, Jay R. Reynolds, Inc., One Brooks Avenue, Post Office Box 326, Willow Street, PA 17584, as Principal (the 'Principal'). and ~q'r,,Fr.'m'~ ~ DEi~OS/3~ COMPANY OF M~_~N~). ~ 200 ~ Es.d% Suite 105, Berwyn, PA 19~12-1187 . a Corporation organized and existing under laws of the St:ate _ of t.'a~....~ ~] ., as Surety (the 'Surety'). are held and firmly bound unto Milton Area School District, as Obligee (the 'Obllgee'). as hereinafter set forth, In the full and Just sum of One Million Three Hundred Forty-Three Thousand Eight Hundred and No/100 Dollars ($1,343,800.00)lawful money of the United States of America, for the payment of which sum we bind ourselves, our heirs, executors, administrators, successors and assigns, Jointly and severally, firmly by these presents. WITNESSETH THAT: WHEREAS, The Principal heretofore has submitted to the Obligee a certain proposal, dated May 12, 19{i9 (the 'Proposal"), to pedorm certain Plumbing Construction Work for the Additions and Alterations to the Milton Middle and High School for the Obllgee, In connection with the Milton Area School DIstrict pursuant to plans, specifications and other related documents constituting the Contract Documents, which are Incorporated into the Proposal by reference (the 'Contract Documents'), ss prepared by Hayes Large Architects, Logan Boulevard & Fifth Avenue, Altoona, Pennsylvania; and WHEREAS. The Obligee is a 'contracting body' under proVisions of Act No. 385 of the General Assembly of the Commonwealth of Pennsylvania, approved by the Governor on December 20, 1967, known as and cited as the 'Public Works Contractors' Bond Law of 1987' (The 'Act"); and WHEREAS, The Act, in Section 3 (a). required that, before an award'shall be made to the Prlndpal by the Obligee In accordance with the Proposal, the Principal shall furnish this Bond to the Obllgee, with this Bond to become binding upon the award of a contract to the Principal by the Obllgee in accordance with the Proposal; and WHEREAS. It also is a condition of the Contract Documents that this Bond shall be furnished by the Principal to the Obligee; and WHEREAS. Under the Contract Documents, it Is provided, Inter alia. that if the Principal shall fumlsh this Bond to the Obligee, and if the Obligee shall make an award to the Principal in accordance with the Proposal. then the Principal and the Obllgee shall enter Into an agreement with respect to performance of such work (the · Agreement'), the form of which Agreement is set forth in the Contract Documents. NOW, THEREFORE, the terms and conditions of this'=Jond are and shall be that I! the Principal and any subcontractor of the Principal to whom any portJon of the work under the Agreement shall be subcontracted, and if all assignees of the Principal and of any such subcontractor, promptly shall pay or shall cause to be paid, In full. all money which may be due any claimant supplying labor or materials In the prosecution and performance of the work In accordance with the Agreement and In accordance with the Contract Documents, Including any amendment, extension or addition to the Agreement and/or to the Contract Documents. for material furnished or labor supplied or labor performed, then this Bond shall be void; othemvlsa, this Bond shall be -,nd shall remain in force and effect. This Bond, as provided by the Act, shall be solely for the protection of claimants supplying labor or materials to the principal or to any subcontractor of the Principal in the prosecution of the work covered by the Agreement, Including any amendment, extension or addition to the Agreement. The term 'clalmanL' when used herein, and as required by the Act, shall mean any lndMdual, firm, parthership, association, or corporation. The phrase 'labor or materials,' When used herein and as required by the Act, shall Include publlc utility cornices and reasonable rentals of equipment, but only for periods when the equipment rented ia actually used at the site of the work covered by the Agreement. As required by the Act, the provisions of this Bond shall be applicable whether Page 1 of 3 or not the material furnished or labor performed enters into and becomes a component part of the public building, public work or public improvement contemplated by the Contract Documents and the Agreement. As provided and required by the Au't, the Principal and the Surety agree that any claimant, who has performed labor or furnished material In the prosecution of the work In accordance with the Agreement and in accordance with the Contract Documents, Including any amendment, extension or addition to the Agreement and/or to the Contra~t Documents, and who has not been paid therefore, In full, before the expiration o! ninety (90) days after the day on which such claimant performed the last of such labor or furnished the last of such materials for which payment Is claimed, may institute an action upon this Bond, in the name of the claimant, in assumpslt, to recover any amount due the claimant for such labor or material, and may prosecute such action to final Judgment and may have execution upon the judgment; Provided, however, that: (a) any claimant who has a direct contractual relationship with any subcontractor of the Principal, but has no contractual relatlonshlp, express or Implied, with the Principal, may institute an action upon this Bond only if such claimant first shall have given written notice, served In the manner provided in the Act, to the Principal, within ninety (90) days from the date upon which such claimant performed the la, st of the labor or furnished the last of the materials for which payment Is claimed, sating, with substantial accuracy, the amount cialmed and the name of the person for whom the work was performed or to whom the material was furnished; and (b) no action upon this Bond shall be commenced after the expiration of one (1) year from the day upon which the last of the labor was performed or material was supplied, for the payment of which such action Is Instituted by the claimant; and (c) every action upon this Bond shall be Instituted either In the appropriate court of the County where the Agreement Is to be performed or of such other County as Pennsylvania statutes shall provide, or in the United States district court for the district In which the project, to which the Agreement relates, Is situated, and not elsewhere, This Bond is executed and delivered under and subject to the Act, to which reference hereby Is made. The Principal and. the Surety agree that any alterations, changes, and/or additions to the Contract Documents, and/or any alterations, changes and/or additions to the work to be performed under the Agreement In accordance with the Contract Documents, and/or any alterations, changes and/or additions to the Agreement, and/or any gMng by the Obliges of any extensions of time for the performance of the Agreement In accordance with the Contract Documents, and/or any act of forbearance of either the Principal or the Obliges toward the other with respect to the Contract Documents and the Agreement, and/or the reduction of any percentage to be retained by the Obliges as permitted by the Contract Documents and by the Agreement, shall not release, in any manner whatsoever, the Principal and the Surety. or either of them, or their heirs, executors, adm{nlstratom, successors and assigns, from liability and obligations under this Bond; and the Surety, for value received, does waive notice of any such alterations, changes, additions, extensions of time, acts of forbearance and/or reduction of retained percentage. ' Provided, that it Is expressly agreed that this Bond shall be deemed automatically and Immediately, without formal and separate amendments hereto, upon amendment to the Contract Documents not Increasing the contract price more than twenty percent (20%), so as to bind the Principal and the Surety to the full and faithful performance of the Contract Documents as so amended. The term 'Amendment', wherever used in this Bond and whether referring to this Bond, the Contract Documents, or the Agreement, shall Include any altsratlon, addition, extension or modification of any character whatsoever. Provided, further, that no final settlement between the Obliges and the Principal shall abridge the right of any beneficiary hereunder, whose claim may be unsatisfied. I! the Principal Is a foreign corporation (Incorporated under any laws other than those of the Commonwealth of Pennsylvania,) then further terms and conditions of this Bond are and shall be that the Principal or the Surety shall not be discharged from liability on this Bond, nor this Bond surrendered until sum Principal files with the Obliges a certificate from the Pennsylvania Department of Revenue evidencing the payment In full of all bonus, taxes, penalties and Interest, and a certificate from the Bureau of Employment and Unemployment Compensation of the Pennsylvania Department of Labor and Industry, evidencing the payment of all unemployment Page 2 of 3 compensation, contributions, penalties and Interest due the Commonwealth from said Principal or any foreign corporation, subcontractor thereunder or for which liability has accrued but the time for payment has not arrived, all In accordance with provisions of the Act of June 10, 1947, P.L. 493, of the Commonwealth of Pennsylvania. IN WITNESS WHEREOF, the Principal and the Surety cause this Bond to be signed, sealed and delivered this 6r_h. day of July ,1999. ATTEST: JAY R. REYNOLDS, INC. BY: President (CORPORATE SEAL) or (if epprooriate) WITNESS: Valerie W. Boos WITNESS: Del:~a L. (CORPORATE SEAL) dAY R. REYNOLDS, INC. · AuthoriZed Representative Brian M. FitzGerald, Vice President Attached appropriate proof, dated as of the same date as the Bond, evidencing authority to execute In behalf of the corporation. ~'q'~3.'r'~ ~ D]~3SZT GCt~AN~ OF MA.R.~ ~.~[Gor~o~ Surety) 39 N. Duke Street (Address) T~,n,"~tert PA 17602 (City, State, Zip) · ' Attach an appropriate power of attorney, dated ss of the same date as the Bond, evidencing the authority of the Attorney-In-fact to act In behalf of the corporation. NOTE: Date of Bond must not be prior to date of Notice of Intent to Award. If Principal Is partnership, ell partners should execute Bond. IMPORTANT: Surety companies executing Bonds must appear on the Commonwealth o! Pennsylvania Insurance Department's most current licensed company list and be authorized to transact business in the Commonwealth of Pennsylvania. Page 3 of 3 Exhibit G SUBCONTRACT This Agreement, Made this 16th day of October, 2000 by and between Hutton & Riggs Inc., 94 l{idlay Church Road, Bloomsburg, PA, 17815, hereinafter called the Subcontractor and Jay R. Reynolds, Inc., P. O. Box 326, Willow Street, PA 1-7584 hereinafter called the contractor. Project: Additions and Renovations Susquenita Elementary School 1725 Schoolhouse Road Duncannon, PA 17020-9540 Plumbing Construction Owner: Susquenita School District 1725 Schoolhouse Road Duncannon, PA 17020-9540 Architect: Crabtree, Rohrbaugh & Associates 20 North Market Square, Suite 800 Harrisburg, PA 17101 Engineer: Lewis Consulting Engineers 2 Market Plaza Way Mechanicsburg, PA 17055 The Contractor and Subcontractor agree as set forth below. CONTRACT DOCUMENTS: a. The Contract Documents for this Subcontract consist of the Agreement and any Exhibits attached hereto, the Agreement between the Owner and Contractor dated August 22, 2000, the conditions of the Contract between the Owner and Contractor, all Drawings, all Specifications, ahd all Addenda issued prior to execution of the Agreement between the Owner and Contractor and all Modifications issued subsequent thereto. b. All of the above documents are a part. of this Subcontract, have been reviewed by the Subcontractor and shall be available for use by the Subcontractor upon his request. WORK TO BE PERFORMED: The Subcontractor and the Contractor agree that the materials to be furnished and work to be done by the Subcontractor are: Furnish all labor and material for the plumbing insulation in accordance with al.[ plans, specifications and Addenda #1 through #6. Install lay guard insulation kits provided by Jay R. Reynolds, Inc. TIME OF COMMENCEMENT ARgI) COMPLETION OF WORK: a. The Subcontractor agrees to commence his work on notice and shall complete his wgrk by November 15, 2001 in accordance with the project schedule. For failure to commence and complete his work on time, the Subcontractor shall be subject to damages and remedies by the Contractor as set forth in other portions of this Agreement. CONSIDERATION:. ... The Contractor agrees to pay the Subcontractor for the performance of his work the. sum of Twenty-three thousand five hundred Dollars ($23,500.00) in current funds, subject to additions and deductions for such changes as may be agreed upon in writing and approved in writing by the owner, project engineer, or architect, said sum to be paid as follows: (b) (]) The Contractor shall pay tile Subcontractor monthly progress payments in the amount of 90 percent of the Application submitted. Applications shall be in writing and shall be submitted to the Contractor on or before the 15th day of each month. (2) The Subcontractor shall, before the first application, submit to the Contractor a schedule of values of the various parts of the Work aggregating the total sum of this Subcontract, made out in such detail as the Subcontractor and Contractor may agree upon, or as required by the Owner, and supported by such evidence as to its correctness as the Contractor may direct. This schedule, when approved by the Contractor, shall be used as a basis for Applications for Payment, unless it be found to be in error. In applying for payment, the Subcontractor shall submit a statement based upon this schedule. (3) If payments are made on account of materials or equipment not incorporated in the Work but delivered and suitably stored at the site, or at some other location agreed upon in writing, such payments shall be in accordance with the terms and conditions of the Contract Documents. (4) Unless otherwise provided in the Contract Documents, the Contractor shall pay the Subcontractor each progress payment within 15 working days after the Contractor has received payment from the Owner for labor and material covered in the Application submitted by the Subcontractor. FINAL PAYMENT: (1) Subcontractor shall submit to Contractor a statement signed by the job superintendents of Contractor and SubContractor, stating that all work covered by this Subcontract has been satisfactorily completed and performed. Upon receipt of said statement, the final payment shall be paid by the Contractor to the Subcontractor within 15 days after the Contractor shall have received the final payment from the Owner on the Prime Contract. (2) Receipted Invoices and Affidavit: As a further condition of progress payments and final payment, the Contractor may require the Subcontractor to furnish receipted invoices for all materials incorporated into the work or placed on the job site, supported by the affidavit of the Subcontractor setting forth that all claims for labor and material have been paid, with the names and addresses of all laborers and materialmen listed. (3) No certificate given or payment made under this contract, except the final certificate or final payment shall be conclusive evidence of the performance of this contract, either wholly or in part, and no payment shall be construed to be an acceptance of defective work or improper materials. PEI~FORbIANCE, I2%BOR AND MATERIAL PAYMENT BONDS: TEMPORARY FACILITIES AND SERVICES: The Contractor shall furnish and make available at no cost to the Subcontractor the following temporary facilities and services: NONE REQUIRED all other necessary services and facilities are the responsibility of the Subcontractor. SUBCONTRACTOR'S RESPONSIBILITIES: The Subcontractor agrees: (a To be bound to the Contractor by the terms of this Agreement and of the Contract Documents between the Owner and Contractor, and shall assume toward the Contractor all the obligations and responsibilities which the Contractor, by those Documents, assumes toward the Owner, and shall have the benefit of all rights, remedies and redress against the Contractor which the Contractor, by those Documents, has against the Owner, insofar as applicable to this Subcontract, provided that where any provisions of the Contract Documents between the Owner and Contractor is inconsistent with any provisions of this Agree.ments,' this Agreement shall govern. (b To submit to the Contractor applications for payment in S~ch reasoJable time as to enable the Contractor to apply to the Architect for payment. (c To make all claims for extras, for extensions of time and for damages for delays or otherwise, to the Contractor in writing before proceeding to execute such work. (d That this Subcontract shall not be assigned unless the Contractor shall first consent thereto in writing. (e 'To-take o~t and pay for Employer's Liability or W0rker.'s Compensation Insu'rance.as required by the State in which the' work. is being pe.rfo~med. (f To pay all social security, unemployment compensation, sales o~ other taxes or charges assessed against the wages or salary of the Subcontractor's employees or officers or against any materials used in the performance of this Subcontract. (g 7'0 indemnify the Contractor against the claims of all materialmen and employees of the litigation instituted by any officer, employee, laborer or materialmen of the Subcontractor, to which the Contractor is made a party. ' h) (1) (m) (n) (o) (p) (q) (r) (s) (t) (u) (v) (w) To furnish as a condition to obtaining payments hereunder all releases, discharges or other instruments that may be required to release the structure from any and all claims, demands, suits, or whatever kind or nature, arising out of the performance of this Subcontract. To provide adequate insurance to protect all persons not employed by the Subcontractor against claims for damages for personal injury including death, which may arise out of the performance of this Subcontract or by or on account of any act or omission of said Subcontractor, its employees or agents. Certificates of such insurance shall be furnished to the Contractor. To comply with all laws, orders or regulations of the Federal, State or Local Government or of any of their respective, subordinate agencies, departments or commissions, applicable to the performance of this Subcontract. That no payment shall be made hereunder unless all work schedules to be performed in a substantial and workmanlike manner, and until the Subcontractor has deposited with the Contractor satisfactory releases of liens and claims for liens of all lakorers and materialmen, and all other persons in any way performing service or furnishing labor or materials to the Subcontractor on account of this Subcontract for the work in question. That any work done or material furnished failing in the requirements of the Plans, Specifications and this Subcontract, will be removed from the premises and replaced by the Subcontractor at his expense. That time is of the essence of this Subcontract. To furnish, in form approved by the Contractor, and if specified under paragraph 5 or elsewhere herein a completion or other bond providing for the payment of all wages and materials. To furnish to the Contractor, upon request, the names and addresses of all Subcontractors and materialmen, together with amounts due or to become due them and to furnish and cause Subcontractors to furnish upon request of the Contractor and on forms furnished by the Contractor, such reports concerning wage scales, payrolls, and otherwise, as the Contractor may require. That no changes from the Plans and Specifications shall be made, and that no extras shall be performed, unless a separate agreement in writing shall have been made before the commencement of such work or the furnishing of materials. Unless otherwise provided herein, the Contractor will not recognize orders for changes or extras given by employees or representatives of the Contractor on the job. To protect and save harmless the said Contractor against any ~laim or demand of any persons or property for damage caused hereunder, or any claim or demand for patent fees, royalties or for any invention, machine, article or arrangement that may be used by the Subcontractor in the construction of the work, and agrees to defend any and all actions arising out of any of the foregoing claims; to notify the Contractor of all such claims; to defend it, and pay counsel fees and expenses of all kinds whatsoever in connection therewith; and the Subcontractor further agrees that in event of any injunction or legal action, serving to stop the work, the Contractor shall have the privilege of substituting such other articles of similar kind in order to enable the Subcontractor or to complete the work, and all costs and expense occasioned thereby shall be borne by the Subcontractors. To notify the Contractor in writing or by shop drawings of any special provisions required of the Contractor for the installation of the work to be done by the Subcontractor that are not shown on the plans and specifications in detail, in sufficient time to allow the Contractor to make these special provisions as the project progresses. In the event the Subcontractor fails to so notify the Contractor, it shall be the responsibility of the Subcontractor to bear the expense for all changes required to properly install his work. Subcontractor shall be responsible for any deviations from the drawings or the specifications, unless the Subcontractor has, in writing, notified the Contractor of such deviations, giving reasons therefore, at the time of submission of preliminary or final shop drawings. To take all reasonable safety precautions with respect to his Work, to comply with all safety measures initiated by the Contractor and with all applicable laws, ordinances, rul.es, regulati.ons and. orders of any public authority for the safety of persons or property in accordance With the requirements of the Contract Documents. The Subcontractor shall report to the Contractor immediately any injury to any of the Subcontractor's employees at the site. That all materials and equipment furnished and incorporated by him in the Project shall be new unless otherwise specified, and that all Work under this Subcontract shall be of good quality, free from faults and defects and in conformance with the Contract Documents. All Work not conforming to these standards may be considered defective. This w~rranty shall be in addition to and not in limitation of any other warranty or remedy required b~ law ~r by the Contract Documents. . Promptly submit shop drawings and samples as required in order to perform his work efficiently, expeditiously and in a manner that will not cause de]ay in the progress o-f the Work of the Contractor or other Subcontractors. To comply wi th all laws and regulations (sta~le and federal ) relatir]g Lo wages, hours, overL~me, reco£d-ke~p~g, <zqu~l ~m[~] ©~,;n~:rlt op}~ortuni ty, etic. a~ ! h~, a?pl y to this project. 10. CON~FRACTOR'S RESPONSIBILITIES: (9) The Contractor agrees: To be bound to the Subcontractor by the terms of this agreement and of the Contract Documents between the Owner and the Contractor and to assume toward the Subcontractor all the obligations and responsibilities that the Owner, by those Documents, assumes toward the Contractor, and to have the benefit of all rights, remedies and redress against the Subcontractor which the Owner, by those Documents, has against the Contractor, insofar as applicable to this Subcontract, provided that where any provision of the Contract Documents between the Owner and the Contractor is inconsistent with any provision in this Agreement, this Agreement shall govern. (b) To promptly notify the Subcontractor of all modifications to the Contract between the Owner and the Contractor which affect this Subcontract and which were issued or entered into subsequent to the execution of this Subcontract. (c) That if he fails to make payments to the Subcontractor as herein provided for any cause not the fault of the Subcontractor, within seven days from the time payment should have been made, the Subcontractor may, upon seven days' additional written notice to the Contractor, stop his Work without prejudice to any other remedy he may kave. (d) To make no demand for liquidated damages for delay in any sum in excess of such amount as may be specifically named in this Subcontract, and no liquidated damages shall be assessed against this Subcontract for delays or causes attributed to other Subcontractors or arising outside the scope of this Subcontract. (e) That no claim for payment for services rendered or materials and equipment furnished by the Contractor to the Subcontractor shall be valid without prior written notice to the Subcontractor. (f) To cooperate with the Subcontractor in scheduling and performing his Work to avoid conflicts or interference in the Subcontractor's Work. (g) To permit the Subcontractor to be present and to submit evidence in any arbitration proceeding involving his rights. ACCEPTANCE: The Contractor and the Subcontractor agree that: (a) If on the date of the execution of this Subcontract, the Prime Contract between the owner and the Contractor has not yet been executed, then if such Prime Contract shall not be so executed and delivered, for any reason whatsoever, the Contractor shall be under no obligation to the Subcontractor herein by virtue of this Subcontract. (b) If the Prime Contract for the project herein mentioned is with the Federal or State Government, or any of their subdivisions, agencies, or representatives, this subcontract shall be subject to any right of termination contained in such Prime Contract. In the event of such termination allowance which shall be made to it by the Government for the work covered herein, less the proportionate share of the Contractor's overhead allocated thereto. (c) In the event the Subcontractor is not acceptable to the Owner and/or the Architect for any reason whatsoever, the Contractor shall be under no obligation or responsibility to the Subcontractor, and this Subcontract shall become null and void. (d) Before the commencement of any work the parties shall furnish to each other copies of all collective bargaining agreements to which either of them may be a party and which pertain to any labor to be performed on the project. ~ER~4INATION FOR FAILLrRE TO WORK: Should the Subcontractor fail to prosecute the work to the satisfaction of the Contractor, or should he at any time become insolvent, or refuse to follow the Plans and Specifications, or fail to perform the work in a good and workmanlike manner, or cause by any action the stoppage of the work of other subcontractors performing work upon this property, or fail to comply in any other respect with this subcontract; then, upon the happening of the foregoing events, or any one of more of them, the Subcontractor agrees that the Contractor may, by three days' written notice mailed to the subcontractor at his last known residence or place of business, or notice delivered at such place, or to the foreperson in charge of the work, terminate this Subcontract and take over the work and prosecute the same to completion by contract or otherwise, and enter into and take possession of the work, materials, tools, appliances and ~quipment needed to complete such work, and make such payment as the Contractor deems necessary for the discharge in whole or in part of' the claims, liens or claims for liens, Of any person in privity with the Subcontractor on account of this Subcontract; and the Subcontractor agrees that the expense of such notice and of the completion of such work, and the amount paid for the discharge or payment on account of claims, liens, or claims for liens, and the expense thereof, shall be deducted from the amount due or to become due the Subcontractor, and if more than the amount due, then the Subcontractor shall be liable to the Contractor for the difference, and the .Contractor may hold, sell or otherwise' realize upon any material, machinery, tools, or other equipment upon the premises on account of such difference in case the Subcontract shall fail or refuse to pay the sam~i all without prejudice to any other remedy the Contractor may have. If the Subcontractor shall abandon the work, the Contractor shall be under no obligation to give any notice whatsoever prior to taking over the ~ork. 12. 13. LIENS AND CLAIMS: T~e Subcontractor hereby expressly waives, releases and relinquishes any and all right to maintain, or have filed or maintained any mechanic's lien or claim against the aforesaid premises, or any part thereof, or any building or buildings thereon, for or on account of any work, labor and materials performed or ~urnished under this agreement, and agrees that no such lien or claim shall be so filed or maintained by or on behalf of the Subcontractor; and the Subcontractor further agrees to save the Contractor harmless from the lien or claim for liens against the aforesaid premises or any part thereof, or any buildings thereon, of any subcontractor, or any persons acting through or under the Subcontractor, and agrees, that if at any time there shall be any evidence of the filing or maintenance of any such lien or claim for lien the Contractor shall have the right to deduct from the amount otherwise due to the Subcontractor hereunder, an amount sufficient to indemnify it for any or all loss or damages which may result from such lien or claim; and the Subcontractor further agrees that this waiver shall be an independent covenant, and shall operate and be effective, not only with respect to materials furnished or labor performed under this subcontract, but also with respect to any and all materials furnished or labor performed under any subcontract supplemental to this principal subcontract, and under any subcontract for extra labor or materials for the above described premises. EXCLUSMTY: This Document includes all the agreements between the Contractor and the Subcontractor for the specific Project named herein, and any changes hereto shall be made in writing and executed by both the Contractor and Subcontractor. ~DITIO~AL TEP/4S: (a) The Subcontractor shall submit one copy of: Form No. G805 "List of Subcontractors" or Form No. GSC-23 "Request for Approval of Materials and/or Subcontractors" This form is used to identify each item of material or a subcontractor which will be used in the project. The items shall be listed using the title as shown in the specifications and reference the specification section, page and paragraph along with the applicable manufacturer or subcontractor's complete name and address. (b) The Subcontractor under this Subcontract Agreement shall be subject to the approval of the Owner, Architect and Engineer. In the event the Owner, Architect or Engineer refuses to approve the Subcontractor, for whatever reason, the agreement may be canceled by the Contractor with no liability on the part of the Contractor. (c) Kindly submit 10 copies of submittal data, as required by the specifications for approval within 5 days. Each item shall be identified by title, section, page and paragraph number given in the Specifications. Do not release materials or proceed until after you have received proper approvals. (d) After approvals, kindly submit 4 sets of operating and maintenance instructions for all materials supplied. The instructions shall, consist of data supplied by the manufacturer giving complete information on the following: (! Identify each item per title in the Specifications and reference the page and paragraph number. (2 Installation procedures. (3 Operating instructions. (4 Maintenance instructions. (5 Detailed parts list. (6 Recommended spare parts. (7 Address and telephone numbers of nearest supplier for each item. (e) All material and equipment furnished under this Subcontract Agreement shall be guaranteed by the Subcontract6r to the Contractor ~nd Owner to be fit and sufficient f~r the purpoEe intended. (f) Subcontractor shall submit Weekly Payroll Certification, Form LIPW-128, to this office weekly. Monthly payments will be withheld until received. Copies of these forms will be forwarded to you. (g) Provisions of the co~tract requiring compliance with: (1) Prevailing Minimum Wage Predetermination (if applicable) (2) Equal Opportunity Employment (3) Buy American Act (4) Pennsylvania Steel Products Procurement Act (5) Non-Discrimination Clause Agreement (s~e attached Exhibit "A") . (h) All sales and uhe taxes.are included in the Subcontract Agreement amount. a 6 The Subcontractor agrees and consents to all additional terms and conditions set forth above. IN WITNESS WHEREOF, they have hereunto set their hands the day and year first above written. Attest: ~~ ~~6 Contractor: Jay R. Reynolds, Inc. Brian K. Martin, Project Manage [ I 105\.Subconlrl lutton ] JAY R. Y__NOLDS, INC. MECHANICAL CONTRA CTORS BROOKS AVE. - PO. BOX 326 · WILLOW STREET, PA 17584-0326 · PIIONE (717) 464-2755 · FAX (717) 464-2784 · E-MAIL: jrri(~epix.net EXHIBIT A NON-DISCRIMINATION CLAUSE AGREEMENT THIS FORM MUST BE NOTARIZED BY ALL CORPORATIONS, PARTNERSHIPS OR SOLE OWNERS During the term of this contract with JAY R. REYNOLDS, INC. and the contractor ~ ~ ,/tL4_,/,/3 _Z-A/O_ agrees as t~ollows: ' ((3~o-dtractor mea~s other party to the contract) (1) Contractor shall not discriminate against any employee, applicant for employment, independent contractor or any other person because of race, color, religious creed, ancestry, national origin, age, sex'or non-job related disability. Contractor shall take affirmative action to insure that applicants are employed, without regard to their race, color, religious creed, ancestry, national origin, age, sex or non-job related disability. Such affirmative action shall include, but is not limited to: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training. Contractor shall post in conspicuous places, available to employees, agents, applicants for employment, and other persons, a notice to be provided by the contracting agency setting forth the provisions of this nondiscrimination clause. (2) Contractor shall, in advertisements or request for employment placed by it or on its behalf, state ali qualified applicants will receive consideration for employment without regard to race, color, religious creed, ancestry, national origin, age, sex, or non-job related disability. (3) Contractor shall send each labor union or worker's representative with which it has a collective bargaining agreement or other contract of understanding, a notice advising said labor union or workers' representative of its commitment to the nondiscrimination clause. Similar notice shall be sent to every other source of recruitment regularly utilized by Contractor. (4) It shall be no defense to a finding of noncompliance with this non-discrimination clause that Contractor had delegated some of its employment practices to any union, training program, or other source or recrnitment which prevents it from meeting its obligations. However, if the evidence indicates that the Contractor was not on notice of the third-party discrimination or made a good faith effort to correct it, such factor shall be considered in litigation in determining appropriate sanctions. (5) Where the practice ora union or any training program or other source of recruitment will result in the exclusion of minority group persons, so that Contractor will be unable to meet its obligations under this non- discrimination clause, Contractor shall then employ and fill vacancies through other nondiscriminatory employment procedures. (6) Contractor shall comply xvith all state and federal laws prohibiting discrimination in hiring or employment opportunities. In the event of Contractor's non-compliance with the non-discrimination clause of the contract of with any such laws, this contract may be terminated or suspended, in whole or in part, and Contractor may be declared temporarily ineligible for fiwther Commonwealth contracts, and other sanctions may be imposed and remedies invoked. EXHIBIT A NON-DISCRIMINATION CLAUSE AGREEMENT THIS FORM MUST BE NOTARIZED BY ALL CORPORATIONS, PARTNERSHIPS OR SOLE OWNERS During lhe term of this contract with JAY R. REYNOLDS, INC. and the contractor ~ ~ ,/'LCI/~ --~g/~-. agrees as ((~-tltractor means other party to the con!tact) (1) Contractor shall not discriminate against any employee, applicant for employment, independent contractor or mW olher imrs,m bectmsc ofrnce, color, religions creed, anccslry, nnlional origin, age, sex or non-joh related disabili .ty. Contractor shall post in conspicuous place& available lo eanplo3x'e& ~gents, applic,,mts 6,~r employment, and other persons, a notice to be provided by the contracting agency setting forth the provisions of this nondiscrimination clause. (2) Contractor shall, in advertisements or request for employment placed by it or on its behalf, state all qualified ~pplican~s will receix, e consideration for 0mployme~t without ~gard to race, color, religious creed, ancestry, [/~ Co~xl~'aclor slmll semi each h~l~r ration or worker's representative with which it has a collective bargaining utilized by Contractor. had (4) It shall be no defense to a finding of noncompliance with this non-discrimination clause that Contractor ~,h~xmNM ~n.w o~' im omplox~enl pmcli~s lo any union. Iraining program, or off,er sonrce or recruim~ent which prevents t~x~lu.~-Sma r~f mina,-5D, group persons, so thal Conn'acmr will be tmable *~o meet its obligations uarter t~is nm,- discrimination clause, Contractor shall then employ and fill vacancies through other nondiscriminatory employment procedures. (6) Contractor shall comply with all state and federal laws prohibiting discrimination in hiring or'employment opportunities. In the event of Contractor's non-compliance with the non-discrimination clause of the contract ofwifl~ any such laws, this contract may be terminated or suspended, in whole or in part, and Contractor may be declared temporarily ineligible for fi~rlher Commonweald~ contracts, and other sanctions may be imposed and remedies invoked. (7) Contractor shall furnish all necessary employment documents and records to, and permit access to its books, records, and accounts by, the contracting agency and Office of Administration, Bureau of Affirmative Action, for purposes of investigation to ascertain compliance with the provisions of this clause. If Contractor does not posses documents or records reflecting the necessary information requested it shall furnish such information on reporting forms supplied by the contracting agency or the Bureau of Affirmative Action. (8) Contractor shall actively recruit minority subcontractors or subcontractors with substantial minority representation among their employees. (9) Contractor shall include the provision of this nondiscrimination clause in every subcontractor, so that such provision will be binding upon each subcontractor. (10) Contractor obligations under this clause are limited to the Contractor's facilities within Pennsylvania or where the contract is for purchase of goods manufactured outside of Pennsylvania, the facilities at which such goods are actually produced. IN WI'INESS WHEREOF, the contractor has caused this agreement to be executed this ~ day of ~P--.~'~q.--, ~?O'O, with the intention of being legally bound thereby. IF A CORPORATION: ATTEST: ~ ~ Secretary or Treasurer or Assistant (Corporate Seal) /~ffresident or Vice President IF A PARTNERSItIP OR SOLE OWNER: WITNESS: BY Subscribed and sworn to before me the (Notary Seal) day of ~ M A STER\FOR MS\NON DI5:;C2 ] (7) Contractor shall furnish all necessary employment documents and records to, and permit access to its books, records, and accounts by, the contracting agency and Office of Administration, Bureau of Affirmative Action, for purposes of investigation to ascertain compliance with the provisions of this clause. If Contractor does not posses documents or records reflecting the necessary information requested it shall furnish such information on reporting forms supplied by the contracting agency or the Burean of Affirmative Action. (8) Contractor shall actively recruit minority subcontractors or snbcontractors with substantial minority representation among their employees. (9) Contractor shall include the provision of this nondiscrimination clause in every subcontractor, so that such provision will be binding upon each subcontractor. (I0) Contractor obligations under this clause are limited to the Contractor's facilities within Pennsylvania or where the contract is for purchase of goods manufactured outside of Pennsylvania, the facilities at which such goods are actually produced. IN WITNESS WHEREOF, the contractor has caused this agreement to be executed this c~¥~' day of /~)g/o'~-, c,~t)O~, with the intention of being legally bound thereby. IF A CORPORATION: ATTEST: ~ ~ Secretary or Treasurer or Assistant (Corporate Seal) /~'l~resident or ~'~m[-15r-esident IF A PARTNERSHIP OR SOLE OWNER: WITNESS: BY Subscribed and sworn to before me the (Notary Seal) ~O/.j ag day of (_Ot~/o'~t... '5'~90g77) J M.4,q*rI:R\FOR MS\NON DISC21 VERIFICATION I verify that the statemems made the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statemems made are subject to the penalties of 18 Pa.C.S. {}4904 relating to unswom falsification to authorities. HB:44252v2 2664-14 HB 46881vl HUTTON & RIGGS, INC. Plaintiff VS. JAY R. REYNOLDS, INC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants · IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY, PENNSYLVANIA · JURY TRIAL DEMANDED · CIVIL ACTION NO. 03-985 Civil PRAECIPE TO THE PROTHONOTARY OF SAID COURT: Kindly enter my appearance on behalf of Defendants, Jay R. Reynolds, Inc. and Fidelity & Deposit Company of Maryland with regard to the above-captioned matter. By: Respectfully submitted, CALDWELL & KEARNS ~~m~er, j~'~ s Esq ' i I.D. NoYQJT159 rare 3~ 'orth Front Street Harrisburg, PA 17110 (717) 232-7661 Dated: CERTIFICATE OF SERVICE Iv\ ~X~ 2003, I hereby certify that I have AND NOW, this~ day of , served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Kelly H. Decker, Esquire Powell, Trachtman, Logan, Carrle, Bowman & Lombardo 114 North Second Street Harrisburg, PA 17101 54735 By: CALDWELL & KEARNS SHERIFF'S RETURN - OUT OF COUNTY ~CASE NO: 2003-00985 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HUTTON & RIGGS INC VS JAY R REYNOLDS INC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: JAY R REYNOLDS INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of LANCASTER County, Pennsylvania, to serve the within COMPLAINT & NOTICE On April 10th , 2003 , this office was in receipt of the attached return from LANCASTER Sheriff's Costs: Docketing Out of County Surcharge Dep Lancaster Co 18.00 9.00 10.00 47.30 .00 84 .30 So answers : R. [Th0~as- ~l-~n~ Sheriff of Cumberland County 04/10/2003 POWELL TRACHTMAN LOGAN CARRLE Sworn and subscribed to before me this ~l~ day of ~003 A.D. Prothonotary SHERIFF'S RETURN - OUT OF COUNTY ~CASE NO: 2003-00985 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HUTTON & RIGGS INC VS JAY R REYNOLDS INC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: FIDELITY & DEPOSIT COMPANY OF MARYLAND but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of CHESTER County, Pennsylvania, to serve the within COMPLAINT & NOTICE On April 10th , 2003 , this office was in receipt of the attached return from CHESTER Sheriff's Costs: Docketing 6.00 Out of County 9.00 Surcharge 10.00 Dep Chester Co 29.99 .00 54.99 So answ~ ..... ~~ R( Thomas Kline ~ Sheriff of Cumberland County o /zo/2oo3 POWELL TRACHTMAN LOGAN CARRLE Sworn and subscribed to before me this fz;~ day of ~ o~OtlJ A.D. ~ I Prothonotary In The CoUrt of Common Pleas of Cumberland County, Pennsylvania Hutton & Ri§gs inc VS. Jay R. Reynolds, Inc et al SERVE: Fidelity & Deposit Company of Ma~o~and 03,985civil March 6, 2003 hereby deputize the Sheriff of .., I, SHERIFF OF CUMBERLAND COUNTY, PA, do Chosto. r CoulIty to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, [IhtkQ,C.~k i~.'~ ,2003 , at I I:q$' .. o'clock ~ M. served the within upon FT~OeJ,.iT"7_ ~. Doq~5,'T' Corr~Pr~"[ ofz at ~c~ t~¥,~, ?/h"q~ ~u, r6 Io~' by handing to l-rv~¥ rr)~J and made known to copy of the original So answers, the contents the ~:...,~ - County, PA COSTS SERVICE MILEAGE AFFIDAVIT 8HERII r"'S OFFICF I. PLAINTIFF/S/ Hutton & Riggs Inc 3. DEFENDANT/S/ 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA 17608-3480 · (717)299-8200 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN SERVE Jay R. Reynolds Inc 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC., TO BE SERVED. 2 COURT NUMBER 03-985 civil !4. TYPE OF WRIT OR COMPLA NT: Notice and Ccmplain~ Reynolds, Inc. 6. ADDRESS (Street or RFD, Apartment No., City, Boro, Twp., State and ZIP Code) AT 1 Brooks Aven,,e Willow Street, PA 17584 7. INDICATE UNUSUAL SERVICE: ~['DEPUTIZE [] OTHER ~ Now, H~ ~ ~ -~ancaster , I, SHERIFF OF ~ COUNTY, PA., do h_.~,,.erj~yj~3utize the Sbe_.~ff~ef County to execute this Writ~tu~n_tbeseof~.~_dl~¢ ~. to law. This deputation being made at the request and risk of the plaintiff. ~_i'__'?~~~' n ,. 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: C~nberland NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching a,~y property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attach ment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriff's sale thereof. 9. SIGNATURE of ATTORNEY or other ORIGINATOR J 10. TELEPHONE NUMBER 1 1. DATE C GRAINGER BOWMAN 717-238-9300 3/5/03 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed) CUMBERLAND CO SHERIFF' S OFFICE ' ~ . . BELOW THIS LINE 13. acknow, led.ge rec.e, lpt of the wr t ~. NAME of Authonzed LCSO Deputy or Clerk co · , ~. Expiration/Hearing date mplaln[as mo~cated above ~' t 6. I hereby CERTIFY and RETURN that I [] have personally served, have legal evidence of service as shown in "Remarks" [] have executed as shown in "Remarks", the writ or complaint described on the individua, co'~ny, corporation etc., at the address shown above oro~ the individual, coml~any, cor- poration, etc at the address inserted below by handing a TRUE and ~STED COPY thereof. 17. [] I hereby certify and return a NOT FOUND ~ecause I am unable,to locate the individual, company, corporation, etc., named above. (See remarks below) 20'; tdadt;e:~ ;f~ph ,et or RFD,Apartme~y~ Del. Iht, S.T.A.: 34.~ 37. MY COMMISSION EXPIRES 38. I ACKNOWLEDGE RECEIPT OF TH'~ SHERIFF,S RETURN SIGNATURE OF AUTHORIZED ISSUINC~AUTHORITY AND TITLE. } 39 Date Received 1. WHITE - Issuing Authority 2. PiNK - Attorney 3. CANARY - Sheriff's Office 4. BLUE - Sheriff's Office HUTTON & RIGGS, INC. Plaintiff VS. JAY R. REYNOLDS, INC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants · IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY, PENNSYLVANIA · JURY TRIAL DEMANDED · CIVIL ACTION NO. 03-985 Civil NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Counterclaim and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Cumberland County Bar Association Carlisle, Pennsylvania 17013 (717) 249-3166 HUTTON & RIGGS, INC. Plaintiff VS. JAY R. REYNOLDS, INC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants · 1N THE COURT OF COMMON PLEAS ' CUMBERLAND COUNTY, PENNSYLVANIA · JURY TRIAL DEMANDED · CIVIL ACTION NO. 03-985 Civil NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted Debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo a viso o notificacion, y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Lawyer Referral Service Cumberland County Bar Association Carlisle, Pennsylvania 17013 (717) 249-3166 HUTTON & RIGGS, INC. Plaintiff VS. JAY R. REYNOLDS, INC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants · IN THE COURT OF COMMON PLEAS ' CUMBERLAND COUNTY, PENNSYLVANIA · JURY TRIAL DEMANDED · CIVIL ACTION NO. 03-985 Civil NOTICE TO PLEAD To: Hutton & Riggs, Inc. c/o Kelly H. Decker, Esquire Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C. 114 North Second Street Harrisburg, PA 17101 YOU ARE HEREBY NOTIFIED, that the New Matter set forth herein contains averments against you to which you are required to respond within twenty (20) days after service thereof. Failure by you to do so may constitute an admission· CALDWELL & KEARNS By: pinger, Esquire ( Atts]mey{~.D~. No. 07159 xQ,681 Norttv-Front Street Harrisburg, PA 17110 (717) 232-7661 HUTTON & kIGGS', INC. Plaintiff VS. JAY R. REYNOLDS, INC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants · IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY, PENNSYLVANIA · JURY TRIAL DEMANDED · CIVIL ACTION NO. 03-985 Civil DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIM OF DEFENDANT JAY R. REYNOLDS, INC. AND NOW, comes the Defendants, Jay R. Reynolds, Inc. and Fidelity & Deposit Company of Maryland, by and through their attorneys, Caldwell & Keams, and submits the following Answer with New Matter to the Complaint of Plaintiff, Hutton & Riggs, Inc., and Counterclaim of Defendant, Jay R. Reynolds, Inc., stating in support thereof, as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. The averments of paragraph 4 set forth a conclusion of law to which no further response is required or appropriate. 5. Denied as stated. It is not known what is meant by the words, "for some time", and after reasonable investigation, the Answering Defendants are without knowledge or information sufficient to form a belief as to the truthfulness of the averments of this paragraph and proof thereof is demanded if relevant. By way of further response, however, it is acknowledged that Plaintiff and Jay R. Reynolds, Inc. (hereinafter "Reynolds") did have certain contractual relationships to perform plumbing insulation, and/or plumbing related, work pursuant to the following written contracts: 9. ' The a~,erments of paragraph 9 set forth a conclusion of law to whic]~ no further response is required or appropriate. In the event and to the extent a response is required, it is averred that Reynolds properly terminated Plaintiff Hutton formally on each the Terminated Projects, and in fact by Hutton's refusal to complete punch-list work on the Susquenita Project, in accord with the specific contract provisions, to which the parties agreed. Specifically, after appropriate and timely notice from Reynolds, Hutton failed to properly man and complete the Project work, and Reynolds was required to terminate Hutton in order to fulfill its obligations with the various public bodies. 10. Admitted. East Pennsboro Area School District (East Pennsboro Projec0 11. Admitted. 12. Denied. The characterizations by the Plaintiff of its specific written contract obligations is improper and inappropriate as the actual written contract specifically sets forth Hutton's obligations and references made therefor to said contractual provisions, and the various plumbing specifications, addenda and plans referenced therein or subsequently issued. 13. It is admitted that paragraph 4 of the subcontract does provide the sum as averred in this paragraph. 14. It is admitted only that a Schedule was submitted and approved in accord with paragraph 4 of the contract. 15. Admitted. 16. Denied. It is specifically denied that Hutton incurred any costs or expenses that could not have been anticipated and/or were to be performed outside of the reasonable scope of 3 the agreemen[ b~twe~n Reynolds and Hutton. By way of further response, in view of the generality of the averment, and Hutton's failure to ever provide supporting documentation at any required time, Reynolds, after reasonable investigation, is without sufficient knowledge or information to form a belief as to the truth of the averment of this paragraph and proof thereof is demanded, if relevant. 17. Denied as stated. In response thereto, it is admitted that by letter dated August 27, 2001, Hutton, responding to a demand by Reynolds to complete the subject work, responded that it requested a new completion schedule and additional compensation for alleged damages and costs. By way of further response, the averment of this paragraph, due to the nonspecificity of the averment, Reynolds, after reasonable investigation, is without sufficient knowledge or information to form a belief as to the truth of the averment of this paragraph and proof thereof is demanded, if relevant. In further response, Hutton failed at any relevant time to support or document any such assertion as required by the contract. 18. Denied as stated. In response thereto, Reynolds did not issue any change orders by virtue of the fact that Hutton failed and/or refused to present any supporting information or documentation at any time, and to this date, that it was entitled to any such change orders as required by the contract. It is furthermore noted that Hutton was required to make any claims for additional time or costs and expenses prior to proceeding to execute such work, which obligation was breached by Hutton as specifically provided in the contract. In further response, Hutton performed no extra work and proof to the contrary is demanded, if relevant. 19. Denied as stated. In further response thereto, see Defendants' response to paragraph 18, which incorporated by reference. 4 20. ' Denie~t. It is denied that there is any amount due and owing Hutton from Reynolds for alleged extra work on the basis that no extra work was to be performed by Hutton for which it should be compensated, and furthermore Hutton breached the agreement between the parties with regard to any claims for extra work compensation, thereby forfeiting its right thereto. Alternatively, by virtue of the lack of specificity and documentation with regard to this averment, Reynolds, after reasonable investigation, is without sufficient knowledge or information to form a belief as to the troth of the averment of this paragraph and proof thereof is demanded, if relevant. 21. Denied. As hereinbefore stated in the preceding paragraphs, it is denied that Hutton performed extra work and/or properly complied with the contractual provisions concerning any extra work, and therefore is not entitled to any extra compensation. By way of further answer, the averments of paragraph 21 set forth a conclusion of law to which no further response is required or appropriate. Alternatively, by virtue of the lack of specificity of the averment, Reynolds, after reasonable investigation, is without sufficient knowledge or information to form a belief as to the truth of the averment of this paragraph and proof thereof is demanded, if relevant. 22. Admitted in part and denied in part. It is admitted that Hutton has claimed, on occasion, payment for sums allegedly due under the contract and for alleged extra work. It is specifically denied that Hutton is entitled to any further compensation for work or alleged extra work by reasons hereinbefore stated in paragraphs 18 and 20 which are incorporated herein, with regard to the extra work, and by virtue of Hutton's breach of the contract, which went uncured by 5 Hutton and, tl~erefor~, Hutton was properly terminated by Reynolds, who thereafter incurred substantial damages as hereinafter provided to complete Hutton's responsibility. 23. Admitted in part and denied in part. It is admitted that, on or about January 3, 2002, Reynolds did notify Hutton, as provided in the contract, that it had failed to properly maintain work progress on the Project, and failure to return to the site within three (3) days and to properly man the Project would result in termination in accord with Article 10 of the subcontract agreement. Hutton failed to respond in a timely manner to said letter and it was, therefore, Hutton's own actions or inactions which resulted in its termination and loss of opportunity to complete the project and cure its own breach. 24. Denied and denied as stated. By way of further response, it is acknowledged that the unpaid balance on Plaintiff Hutton' s contract was said sum alleged. However, by virtue of Plaintiff Hutton's default and termination, Reynolds incurred or may incur some additional costs with regard to failure of Plaintiff Hutton to pay for materials previously paid by Reynolds to Hutton supplied by Specialty Products and Insulation, which indeed may be an expense of Reynolds in a sum in excess of $5,951.31. 25. Admitted in part and denied in part. It is admitted that, upon termination from the Project, Reynolds took possession of certain equipment owned by Hutton, as it was specifically authorized to do pursuant to the termination provisions contained in Article 10 of the subcontractor agreement between the parties. Additionally, it is furthermore denied that said property had a value as alleged, but it is asserted that the true value of said property was approximately $4,400.00, and proof to the contrary is demanded, if relevant. 6 26. ' Denied. The averments of paragraph 26 set forth a conclusion of law to which no further response is required or appropriate. 27. Denied. It is specifically denied that any sum is due Hutton with regard to the subcontractor agreement for the East Pennsboro Project in view of the lack of Hutton to properly perform its work thereunder, whereupon it was properly terminated and Reynolds was required to complete the Project at its own cost and expense, which cost was approximately $32,704.09. Furthermore, Reynolds was fully within its fights, as set forth in the subcontractor agreement, to maintain possession and control of the property by virtue of Hutton's default on this and the other Projects, for which Reynolds had to perform and incur damages as hereinafter more specifically set forth. By way of further response, Hutton is not entitled to any sums for extra work, as no extra work was performed, nor did Hutton properly follow its contractual obligations with regard to any claims or requests for extra work, to include the timely submission of appropriate documentation and justification, thereby releasing, waived or forfeiting its right to COUNT I BREACH OF CONTRACT Hutton v. Reynolds (East Pennsboro ProjecO 28. Answering Defendant Reynolds incorporates its responses to paragraphs 1 through 27 by reference as if fully set forth at length herein. 29. Denied. Thc averments of paragraph 29 set forth a conclusion of law to which no further response is required or appropriate. In the event and to thc extent any or all of such averments are found not be conclusions of law, Hutton failed to properly man and complete its obligations on the East Pennsboro Project, and for such reasons, was properly terminated. 7 any such claim(s). 30. ' Denied. The averments of paragraph 30 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments of this paragraph are found not to be a conclusion of law, Reynolds paid all obligations to Hutton for labor performed or materials supplied prior to Hutton's breach of the subcontract agreement and no further sums are due and owing by virtue of Hutton's breach. 31. Denied. The averments of paragraph 31 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments of this paragraph are found not to be a conclusion of law, Reynolds incorporates its response to paragraphs 18, 20, 23 and 25 by reference thereto. 32. Denied. By way of further response, Reynolds incorporates its response to paragraph 22 by reference thereto. 33. Denied. By way of further response, Reynolds incorporates its response to paragraph 25 by reference thereto. 34. The averments of paragraph 34 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments of this paragraph are found not to be a conclusion of law, Reynolds incorporates its response to paragraph 27 by reference thereto. WHEREFORE, by reasons hereinbefore stated, Reynolds demands judgment be entered in its favor and this Count I be dismissed 8 COUNT II BREACH OF BOND OBLIGATIONS Hutton v. Fidelit~ (East Pennsboro Project) 35. Admitted in part and denied in part. It is admitted that the payment bond attached as Exhibit "B" to the Plaintiff's Complaint is a copy of the payment bond issued with respect to the East Pennsboro Project. The remainder of the allegation is denied on the basis that the payment bond speaks for itself. 36. Denied. After reasonable investigation, Answering Defendant, Fidelity & Deposit Company of Maryland (hereinafter "Fidelity") is without sufficient knowledge or information to form a belief as to the truth of this averment and proof thereof is demanded, if relevant. Alternatively and in further response, Fidelity has been advised by Reynolds that Reynolds reasonably believes that Hutton performed no work on the East Pennsboro Project after approximately October 29, 2001. 37. Admitted. 38. Denied. By way of further answer, Fidelity has been advised by Reynolds that Hutton did not perform in accordance with the subcontract agreement, and was properly terminated in accord with the subcontract agreement, and had been previously paid for all materials furnished and labor performed on the East Pennsboro Project. 39. Denied. After reasonable investigation, Fidelity is without sufficient knowledge or information to form a belief as to the truth of this averment and proof thereof is demanded, if relevant. Alternatively, Fidelity has been advised, and therefore avers, that all amounts properly due Hutton have been paid in full. 9 40. ' Denied. The averments of paragraph 40 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments do not constitute a conclusion of law, same are denied. By way of further answer, Fidelity's obligation pursuant to the subcontract is for the initial contract amount and any approved change orders, to which it has been advised there was none that would change the original contract price of $49,500.00. Alternatively, in further response, Fidelity has no obligation for work not performed by Hutton after it was terminated from the East Pennsboro Project or for extra work for which Hutton did not follow its contractual obligations for approval by Reynolds, and by the owner, even if such indeed was extra work, which is not acknowledged or admitted, and proof thereof is demanded, if relevant. 41. The averments of paragraph 41 set forth a conclusion of law to which no further response is required or appropriate. WHEREFORE, by reasons hereinbefore stated, Fidelity demands judgment be entered in its favor and this Count II be dismissed. Claremont Nursing and Rehabilitation Center (Claremont Pro|eeO 42. Admitted. 43. Denied. The characterization by the Plaintiff of its specific written contractual obligations is improper and inappropriate as the actual written contract specifically sets forth Hutton's obligations and references made therefor to said contractual provisions, and the various plumbing specifications, addenda and plans referenced therein or subsequently issued. 44. It is admitted that paragraph 4 of the subcontract does provide such sum as averred in this paragraph. 10 45. ' Denied. It is specifically denied that Hutton incurred any costs or expenses that could not have been anticipated and/or were to be performed outside of the reasonable scope of the agreement between Reynolds and Hutton. By way of further response, in view of the generality of the averment, and Hutton's failure at any relevant time, to include the present, to provide supporting documentation and follow the required change order procedure provided in the contract, Reynolds, after reasonable investigation, is without sufficient knowledge or information to form a belief as to the truth of the averment of this paragraph and proof thereof is demanded, if relevant. 46. Denied as stated. In further response thereto, see Defendants' response to paragraph 45, which incorporated by reference. 47. Denied. As hereinbefore stated in the preceding paragraphs, it is denied that Hutton performed extra work and/or properly complied with the contractual provisions concerning any extra work, and therefore is not entitled to any extra compensation whatsoever. By way of further answer, the averments of paragraph 47 set forth a conclusion of law to which no further response is required or appropriate. Alternatively, by virtue of the lack of specificity of the averment, Reynolds, after reasonable investigation, is without sufficient knowledge or information to form a belief as to the truth of the averment of this paragraph and proof thereof is demanded, if relevant. 48. Denied. It is denied that there is any amount due and owing Hutton from Reynolds for alleged extra work on the basis that no extra work was to be performed by Hutton for which it should be compensated, and furthermore Hutton breached the agreement between the parties with regard to any claims for extra work compensation, thereby forfeiting its right thereto. 11 Alternatively, by virtue of the lack of specificity and documentation with regard to this averment, Reynolds, after reasonable investigation, is without sufficient knowledge or information to form a belief as to the troth of the averment of this paragraph and proof thereof is demanded, if relevant. 49. Admitted in part and denied in part. It is admitted that, on or about January 3, 2002, Reynolds did notify Hutton, as provided in the contract, that it had failed to properly maintain work progress on the Project, and failure to return to the site within three (3) days and to properly man the Project would result in termination in accord with Article 10 of the subcontract agreement. Hutton failed to respond in a timely manner to said letter and it was, therefore, Hutton's own actions or inactions which resulted in its termination and loss of opportunity to complete the project. 50. Denied. The averments of paragraph 50 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments are found not to be a conclusion of law, same are denied. By way of further response, it is specifically denied that Hutton was improperly terminated, but indeed was properly terminated in accord with the subcontract agreement by its failure to properly maintain the Project and complete its contractual responsibilities as described in the preceding paragraph. Indeed, as more specifically set forth in the following new matter and counterclaim, Reynolds incurred costs of approximately $30,125.77 to complete Hutton's responsibilities. In addition, by virtue of Plaintiff Hutton's default and termination, Reynolds incurred or may incur some additional costs with regard to failure of Plaintiff Hutton to pay for materials previously paid by Reynolds to Hutton supplied by Specialty Products and Insulation, which indeed may be an 12 expense of Reynolds'in a sum in excess of $1,917.82. In further response, Hutton never provided at. any relevant or required time appropriate supporting documentation to indicate any entitlement to extra work and it is furthermore denied that any extra work was performed, or to be performed, by Hutton and proof thereof is demanded, if relevant. Hutton, therefore, forfeit and waived any rights to any such claim. COUNT III Hutton v. Reynolds (Claremont Project) Answering Defendant Reynolds incorporates its responses to paragraphs 1 51. through 50 by reference as if fully set forth at length herein. 52. Denied. The averments of paragraph 52 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of such averments are found not be conclusions of law, Hutton failed to properly man and complete its obligations on the Claremont Project, and for such reasons, was properly terminated. 53. Denied. The averments of paragraph 53 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments of this paragraph are found not to be a conclusion of law, Reynolds paid all obligations to Hutton for labor performed or materials supplied prior to Hutton's breach of the subcontract agreement and no further sums are due and owing by virtue of Hutton's breach. 54. Denied. The averments of paragraph 54 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments of this paragraph are found not to be a conclusion of law, Reynolds incorporates its response to paragraphs 23 and 25 to this Count by reference thereto. 13 55. Denidd. By way of further response, Reynolds incorporates its response tg paragraph 22 to this Count by reference thereto. 56. The averments of paragraph 56 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments of this paragraph are found not to be a conclusion of law, Reynolds incorporates its response to paragraph 27 to this Count by reference thereto. WHEREFORE, by reasons hereinbefore stated, Reynolds demands judgment be entered in its favor and this Count III be dismissed COUNT IV Hutton v. FideliW (Claremont Project) 57. Answering Defendant Reynolds incorporates its responses to paragraphs 1 through 56 by reference as if fully set forth at length herein. 58. Admitted in part and denied in part. It is admitted that the payment bond attached as Exhibit "D" to the Plaintiff's Complaint is a copy of the payment bond issued with respect to the Claremont Project. The remainder of the allegation is denied on the basis that the payment bond speaks for itself. 59. Denied. After reasonable investigation, Fidelity is without sufficient knowledge or information to form a belief as to the truth of this averment and proof is demanded, if relevant. By way of further response, however, Fidelity has been advised, and therefore avers, that the last date on which Hutton performed labor and/or supplied materials was on or about October 29, 2001. 60. Admitted. 14 61. Denidd. By way of further answer, Fidelity has been advised by R~ynold~ that Hutton did not perform .in accordance with the subcontract agreement, and was properly terminated in accord with the subcontract agreement, and had been previously paid for all materials furnished and labor performed on the Claremont Project. 62. Denied. After reasonable investigation, Fidelity is without sufficient knowledge or information to form a belief as to the truth of this averment and proof thereof is demanded, if relevant. Alternatively, Fidelity has been advised, and therefore avers, that all amounts properly due Hutton have been paid in full. 63. Denied. The averments of paragraph 63 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments do not constitute a conclusion of law, same are denied. By way of further answer, Fidelity's obligation pursuant to the subcontract is for the initial contract amount and any approved change orders, to which it has been advised there was none that would change the original contract price of $32,500.00. Alternatively, in further response, Fidelity has no obligation for work not performed by Hutton after it was terminated from the Claremont Project or for extra work for which Hutton did not follow its contractual obligations for approval, even if such indeed was extra work, which is not acknowledged or admitted, and proof thereof is demanded, if relevant. Alternatively, after reasonable investigation, Fidelity is without information or knowledge sufficient to form a belief as to the truth of the averments, and same are denied and proof demanded, if relevant. 64. Denied. The averments of paragraph 64 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the 15 averments are deterrflined not to be a conclusion of law, Fidelity incorporates by reference its responses to paragraphs 59, 61 and 63 of this Count. WHEREFORE, by reasons hereinbefore stated, Fidelity demands judgment be entered in its favor and this Count IV be dismissed. 65. _Milton Middle and High School (Milton Project) Admitted. 66. Denied. The characterizations by the Plaintiff of its specific written contract obligations is improper and inappropriate as the actual written contract specifically sets forth Hutton's obligations and references made therefor to said contractual provisions, and the various plumbing specifications, addenda and plans referenced therein or subsequently issued. 67. It is admitted that paragraph 4 of the subcontract does provide the sum as averred in this paragraph. 68. Denied. It is specifically denied that Hutton incurred any costs or expenses that could not have been anticipated and/or were to be performed outside of the reasonable scope of the agreement between Reynolds and Hutton. It is denied the scope of the work was changed and proof thereof is demanded. By way of further response, in view of the generality of the averment, Reynolds, after reasonable investigation, is without sufficient knowledge or information to form a belief as to the truth of the averment of this paragraph and proof thereof is demanded, if relevant. 69. Denied. As hereinbefore stated in the preceding paragraphs, it is denied that Hutton performed extra work and/or properly complied with the required contractual provisions concerning any extra work, and therefore is not entitled to any extra compensation whatsoever. 16 By way of furiher answer, the averments of paragraph 69 set forth a conclusion of'law to ~vhich no further response is required or appropriate. ~ Alternatively, by virtue of the lack of specificity of the averment, Reynolds, after reasonable investigation, is without sufficient knowledge or information to form a belief as to the truth of the averment of this paragraph and proof thereof is demanded, if relevant. 70. Denied that at any required/relevant time prior to termination of the contract Hutton made such a demand. It is furthermore denied that there is any amount due and owing Hutton from Reynolds for alleged extra work on the basis that no extra work was to be performed by Hutton for which it should be compensated, and furthermore Hutton breached the agreement between the parties with regard to any claims for extra work compensation, releasing, waiving and thereby forfeiting its right thereto. Alternatively, by virtue of the lack of specificity and documentation with regard to this averment, Reynolds, after reasonable investigation, is without sufficient knowledge or information to form a belief as to the truth of the averment of this paragraph and proof thereof is demanded, if relevant. 71. Admitted in part and denied in part. It is admitted that, on or about January 3, 2002, Reynolds did notify Hutton, as provided in the contract, that it had failed to properly maintain work progress on the Project, and failure to return to the site within three (3) days and to properly man the Project would result in termination in accord with Article 10 of the subcontract agreement. Hutton failed to respond in a timely manner to said letter and it was, therefore, Hutton's own actions or inactions which resulted in its termination and loss of opportunity to complete the project. 17 72. Denidd. By way of further answer, it is specifically denied that Hutton is entitled to any sum due for extra work or work performed as its breached its contract with Reynolds, whereupon Reynolds had to perform the remaining work of Hutton at its expense, which will be more specifically set forth in said new matter and counterclaim, incurring costs of approximately $8,503.77. In addition, by virtue of Plaintiff Hutton's default and termination, Reynolds incurred or may incur some additional costs with regard to failure of Plaintiff Hutton to pay for materials previously paid by Reynolds to Hutton supplied by Specialty Products and Insulation, which indeed may be an expense of Reynolds in a sum in excess of $727.16. In further response, Hutton never provided appropriate documentation to indicate any entitlement to extra work thereby waiving, releasing or forfeiting any right to now claim same. It is furthermore denied that any extra work was performed, or to be performed, by Hutton and proof thereof is demanded, if relevant. It is furthermore noted that, even in the event that Hutton performed any extra work, it did not follow its contractual obligation to cease such extra work, and is thereby ban'ed from asserting any such claim. COUNT V BREACH OF CONTRACT Hutton v. Reynolds (Milton Pro|ect) 73. Answering Defendant Reynolds incorporates its responses to paragraphs 1 through 72 by reference as if fully set forth at length herein. 74. Denied. Thc averments of paragraph 74 set forth a conclusion of law to which no further response is required or appropriate. In thc event and to the extent any or all of such averments are found not be conclusions of law, Hutton failed to properly man and complete its obligations on the Milton Project, and for such reasons, was properly terminated. 18 75. Denidd. The averments of paragraph 75 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments of this paragraph are found not to be a conclusion of law, Reynolds paid all obligations to Hutton for labor performed or materials supplied prior to Hutton's breach of the subcontract agreement and no further sums are due and owing by virtue of Hutton's breach. There was no work to be performed outside the scope of the contract and Hutton failed to timely or properly claim such, thereby waiving, forfeiting and releasing any rights to now assert such claim(s). 76. Denied. The averments of paragraph 76 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments of this paragraph are found not to be a conclusion of law, Reynolds incorporates its response to paragraph 23 to this Count and paragraph 74 by reference thereto. 77. Denied that at any require&relevant time prior to termination of the contract Hutton made such a demand. By way of further response, Reynolds incorporates its response to paragraph 22 to this Count and paragraph 75 by reference thereto. 78. The averments of paragraph 78 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments of this paragraph are found not to be a conclusion of law, Reynolds incorporates its response to paragraph 27 to this Count and Paragraph 75 by reference thereto. WHEREFORE, by reasons hereinbefore stated, Reynolds demands judgment be entered in its favor and this Count V be dismissed 19 COUNT VI BREACH OF BOND OBLIGATION Hutton v. Fidelity (Milton Project) 79. Answering Defendant Reynolds incorporates its responses to paragraphs 1 through 78 by reference as if fully set forth at length herein. 80. Admitted in part and denied in part. It is admitted that the payment bond attached as Exhibit "F" to the Plaintiff's Complaint is a copy of thc payment bond issued with respect to the Milton Project. The remainder of the allegation is denied on the basis that thc payment bond speaks for itself. 81. Denied. After reasonable investigation, Fidelity is without sufficient knowledge or information to form a belief as to the truth of this averment and proof is demanded, if relevant. By way of further response, however, Fidelity has been advised, and therefore avers, that the last date on which Hutton performed labor and/or supplied materials was on or about November 5, 2001. 82. Admitted. 83. Denied. By way of further answer, Fidelity has been advised by Reynolds that Hutton did not perform in accordance with the subcontract agreement, and was properly terminated in accord with the subcontract agreement, and had been previously paid for all materials furnished and labor performed on the Milton Project. 84. Denied. After reasonable investigation, Fidelity is without sufficient knowledge or information to form a belief as to the truth of this averment and proof thereof is demanded, if relevant. Alternatively, Fidelity has been advised, and therefore avers, that all amounts properly due Hutton have been paid in full. 20 85. Denied. The averments of paragraph 85 set forth a conclusion ofl~w to ~hich no further response is required or appropriate. In the event and to the extent any or all of the averments do not constitute a conclusion of law, same are denied. By way of further answer, Fidelity's obligation pursuant to the subcontract is for the initial contract amount and any approved change orders, to which it has been advised there was none that would change the original contract price of $62,000.00. Alternatively, in further response, Fidelity has no obligation for work not performed by Hutton after it was terminated from the Milton Project or for extra work for which Hutton did not follow its contractual obligations for approval, even if such indeed was extra work, which is not acknowledged or admitted, and proof thereof is demanded, if relevant. 86. The averments of paragraph 86 set forth a conclusion of law to which no further response is required or appropriate. WHEREFORE, by reasons hereinbefore stated, Fidelity demands judgment be entered in its favor and this Count VI be dismissed. Susquenita Elementary School Project 87. Admitted. 88. Denied. The characterization by the Plaintiff of its specific written contractual obligations is improper and inappropriate as the actual written contract specifically sets forth Hutton's obligations and references made therefor to said contractual provisions, and the various plumbing specifications, addenda and plans referenced therein or subsequently issued. 89. It is admitted that paragraph 4 of the subcontract does provide the sum as averred in this paragraph. 21 90. The a;eerments of paragraph 90 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent that any or all of the averments are determined not to be a conclusion of law, same are denied and it is averred that Hutton has been paid in accordance with the subcontract agreement for all sums to which it is entitled. By way of further response, Reynolds proposed to Hutton that such remaining work to be completed would be timely paid, but Hutton refused to complete its obligations and responsibilities. 91. Admitted that such requests were made, but at that time, Hutton had breached various other contract obligations to Reynolds and had refused/failed to complete its work on the Susquenita Project. 92. Denied. By way of further response, no such termination was actually issued on the Susquenita Project. 93. Denied. The averments of paragraph 93 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averment is determined not to be a conclusion of law, Hutton is not entitled to compensation for any work or extra work by virtue of its breach of the contracts on the other Projects (East Pennsboro, Claremont and Milton) and failed to complete its work on the Susquenita Project. COUNT VII BREACH OF CONTRACT Hutton v. Reynolds (Snsquenita Projee0 94. Answering Defendant Reynolds incorporates its responses to paragraphs 1 through 93 by reference as if fully set forth at length herein. 95. Denied and denied as stated. It is denied that Hutton was terminated for the Susquenita Project. Hutton failed/refused to complete its contractual obligations for the 22 Susquenita Project. ~ee also the responses to paragraphs 91 through 93, which are incorporated by reference. 96. Denied. The averments of paragraph 96 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments of this paragraph are found not to be a conclusion of law, Reynolds paid all obligations to Hutton for labor performed or materials supplied prior to Hutton's breach of the subcontract agreement and no further sums are due and owing by virtue of Hutton's breach and breach of the other Projects, hereinbefore stated (East Pennsboro, Claremont and Milton). 97. Denied. Reynolds incorporates its responses to paragraphs 90, 91, 92, 93 and 95 by reference thereto. Hutton's own actions to refuse to complete the Susquenita Project and cure the breaches on the other Projects created any loss of opportunity. 98. Denied. By way of further response, Hutton made no such demand until after it had failed to cure its breach of its obligations on all of the Projects and thereby was not entitled to any sums by reason of its breaches on all of the Projects. 99. The averments of paragraph 99 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments of this paragraph are found not to be a conclusion of law, Reynolds incorporates its response to paragraphs 96, 97 and 98 by reference thereto. WHEREFORE, by reasons hereinbefore stated, Reynolds demands judgment be entered in its favor and this Count VII be dismissed 23 COUNT Villi BREACH OF BOND OBLIGATIONS Hutton v. Fidelity_ (Susquenita Project) 100. Answering Defendant Reynolds incorporates its responses to paragraphs 1 through 99 by reference as if fully set forth at length herein. 101. Admitted in part and denied in part. A Payment Bond was issued with respect to the Susquenita Project and is attached hereto, marked Exhibit "A". Thc remainder of thc allegation is denied on thc basis that the payment bond speaks for itself. 102. Denied. After reasonable investigation, Answering Defendant, Fidelity & Deposit Company of Maryland (hereinafter "Fidelity") is without sufficient knowledge or information to form a belief as to thc truth of this averment and proof thereof is demanded, if relevant. Alternatively and in further response, Fidelity has been advised by Reynolds that Reynolds reasonably believes that Hutton performed no work on the Susquenita Project after approximately November 9, 2001. 103. Denied. After reasonable investigation, Fidelity is without sufficient knowledge or information to form a belief as to thc truth of this averment, and proof thereof is demanded, if relevant. Alternatively, Fidelity has been advised by Reynolds that Hutton was not formally terminated for this Project. 104. Denied. By way of further answer, Fidelity has been advised by Reynolds that Hutton did not perform in accordance with the subcontract agreement, and had been previously paid for all materials furnished and labor performed on the Susquenita Project and/or as offset by other obligations of Hutton that Reynolds was required to assume and is assuming, to include a claim for payment of materials of Specialty Products and Insulation for the Susquenita Project 24 for which Re~nolds ~tid previously pay Hutton, but Hutton did not pay to Specialty Products and Insulation. 105. Denied. After reasonable investigation, Fidelity is without sufficient knowledge or information to form a belief as to the truth of this averment and proof thereof is demanded, if relevant. Alternatively, Fidelity has been advised, and therefore avers, that all amounts properly due Hutton have been paid in full and or as offset by other obligations of Hutton that Reynolds was required to assume. 106. Denied. The averments of paragraph 106 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments do not constitute a conclusion of law, same are denied, and Fidelity incorporates by reference its responses to paragraphs 104 and 105. 107. The averments of paragraph 107 set forth a conclusion of law to which no further response is required or appropriate. WHEREFORE, by reasons hereinbefore stated, Fidelity demands judgment be entered in its favor and this Count VIII be dismissed. COUNT IX QUANTUM MERUIT All Projects 108. Defendants incorporate all of its responses in the above paragraphs by reference thereto as if fully set forth. 109. Admitted in part and denied in part. It is admitted that Reynolds had notice of Hutton's commencement of work on the Projects and Hutton was properly paid therefor until Hutton's termination, whereupon Reynold's properly exercises its legal and contractual rights. It 25 is denied that Hutton ever submitted any substantiated or proper claim for extra work on any of the Projects at any required times and proof thereof is demanded. Reynolds had no obligation to consider unsubstantiated claims for added compensation whatsoever. 110. Denied. The averments of paragraph 110 set forth a conclusion of law to which no further response is required or appropriate. 111. Denied. The averments of paragraph 111 set forth a conclusion of law to which no further response is required or appropriate. 112. Denied. The averments of paragraph 112 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments do not constitute a conclusion of law, Reynolds has fully paid Hutton for the value of all work performed and/or prior to Reynolds proper termination of Hutton's subcontracts. 113. Denied. The averments of paragraph 113 set forth a conclusion of law to which no further response is required or appropriate. 114. Denied. By way of further answer, Reynolds has fully paid Hutton for all work performed and materials supplied, and owes no further sums for value of work performed on any of the Projects. Indeed, by virtue of Hutton's breach, Reynolds has been required to complete the performance of Hutton's work and has incurred costs of approximately $71,333.63, including the estimated value of the equipment, which Reynolds took possession as provided by the contract, and in addition, Reynolds was furthermore required to respond to and defend claims of Specialty Products and Insulation for materials on the Projects, which Reynolds had paid Hutton, totaling $9,645.14, resulting in further loss and expenses in addition thereto to Reynolds, as more fully set forth in the New Matter and Counterclaim. 26 WHEiLEFOI3,~E, Reynolds demands that judgment be entered in its favor and Count IX be -dismissed. COUNT X COMMONWEALTH PROCUREMENT CODE All Projects 115. Answering Defendant Reynolds incorporate all of its responses in thc above paragraphs by reference thereto as if fully set forth. 116. Denied. Thc averments of paragraph 116 set forth a conclusion of law to which no further response is required or appropriate. 117. Denied. Thc averments of paragraph 117 set forth a conclusion of law to which no further response is required or appropriate. In thc event and to thc extent any or all of the averments arc determined not to bca conclusion of law, Hutton has not completed performance on any of the four Projects for thc reasons hereinbefore set forth, requiring Reynolds to incur replacement costs. By way of further answer, Hutton was properly terminated from each of the Projects hereinbefore identified duc to failure to perform same as required by its contractual obligations. 118. Denied. The averments of paragraph 118 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments are determined not to be a conclusion of law, to the contrary, Reynolds did provide, for each and every Project Hutton was terminated or failed to perform specific written notice to Hutton of its breach, and Hutton, on each and every Project, failed or refused to timely cure same or complete its contractual obligations. 27 119. Denied. The averments of paragraph 119 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments are determined not to be a conclusion of law, as repeatedly stated, Reynolds has fully and timely paid Hutton for all work performed and materials supplies to the date of Hutton's breach and failure to complete its contractual responsibilities. 120. Denied. The averments of paragraph 120 set forth a conclusion of law to which no further response is required or appropriate. 121. Denied. The averments of paragraph 121 set forth a conclusion of law to which no further response is required or appropriate. In the event and to the extent any or all of the averments are determined not to be a conclusion of law, on the contrary, Reynolds has provided, for each and every Project, the specific basis for termination and/or refusal to pay any sums due, whereupon Reynolds was required to complete performance of the Projects as was Hutton's obligation prior to its respective terminations. 122. Denied. The averments of paragraph 122set forth a conclusion of law to which no further response is required or appropriate. 123. Denied. The averments of paragraph 123 set forth a conclusion of law to which no further response is required or appropriate. 124. Denied. The averments of paragraph 124 set forth a conclusion of law to which no further response is required or appropriate. WHEREFORE, Reynolds demands that judgment be entered in its favor and Count X be dismissed. 28 NEW MATTER In further response to PlaintiffHutton's Complaint, Defendants Reynolds and Fidelity assert the following New Matter, to wit: 125. Defendants incorporate, by reference thereto, paragraph 1 through 124 of their Answer as if same were fully set forth. 126. All of Plaintiff's claims against Fidelity are barred by statute of limitations and/or by the specific terms of the Payment Bonds for each of the Projects to assert such claims. 127. Fidelity's responsibility under the Bonds is limited to labor actually performed and materials actually supplied and in accord with all provisions of the contracts, to include written approval of any change orders or as otherwise provided in the operative contract. 128. Plaintiff's Complaint fails to set forth any cause of action upon relief can be granted against Defendant Fidelity. 129. Defendants Fidelity and Reynolds have no obligations at this time to Plaintiff Hutton by virtue of Hutton's failure to cure its breach of contract and/or complete performance of the contracted work for each and all of the Projects. 130. Plaintiff's claims and damages are barred or limited by the doctrine of mitigation. 131. Hutton breached its contractual obligations for each and all of the Projects, and was properly terminated on all Projects, with the exception of the Susquenita Project in which it was not terminated, but failed or refused to complete its contractual obligations. 132. Hutton is not entitled to claims for alleged additional work on any of the Projects for the following reasons: 29 (a) it never timely submitted any supporting documentation to even properly consider compensation of alleged additional work on any of the Projects; (b) it failed to adhere to the terms of the respective contracts regarding claims for change orders and additional compensation; (c) it breached its contractual obligations and was properly terminated, thereby releasing, waiving and/or forfeiting any entitlement to any further sums; (d) it did not perform any additional work for which any additional compensation is due, even if it had not breached its contractual obligations and/or followed the mandated procedure for approval of change orders; (e) it has been fully paid for all work performed and materials supplied for each and all of the Projects' (f) Plaintiff waived and/or released any claims for alleged extra work by failure to comply with the contracts for the Projects; (g) Plaintiff's claims sounding in contract against Defendant Reynolds fail to set forth a cause of action; and (h) Plaintiff's claims for extra work are barred by estoppel. 133. Plaintiff Hutton failed to perform all of its required and specified work under each contract for all of the Projects, and was properly terminated in accord with Article 10 of the contract for the East Pennsboro, Milton and Claremont Projects, and for failure to perform its responsibilities under the Susquenita Project, thereby forfeiting any further monies due thereunder and entitling Reynolds to exercise its fights thereunder to perform the work and take possession of property of Hutton to minimize Reynolds' costs, damages and losses. 30 134. By virtue of Plaintiff Hutton' s actions or inactions, Defendant Reynolds was required to perform Hutton's responsibilities under the Projects, all at cost to Reynolds of $71,333.63, which exceeded the remaining sums due Hutton by approximately $11,567.00. 135. The true value of the equipment of which Reynolds took possession, as it was entitled under the subcontract agreements, was but $4,480.00. 136. Hutton did not perform, nor were there any circumstances which would entitle Hutton to any compensation for additional work under the contracts for any of the Projects. 137. Hutton failed to follow the contractual provisions in each and all of the subcontracts agreements to assert any claims for additional compensation for which it claimed it was entitled, and as a result, such are precluded by the law and/or provisions of the respective subcontract documents. 138. Hutton has failed to state a claim for which relief can be granted for violation of the Commonwealth Procurement Code. 139. Hutton has failed to state a claim for which relief can be granted for violation of quantum meruit. 140. Hutton has been paid for all actual work performed and materials suppled for each of the Projects, and is not entitled to any further sums by virtue of its failure to timely perform its contractual obligations and timely cure defaults after written demand. 141. Plaintiff's right to properly assert claims for work and/or extra work were forfeit and terminated by its breach of its obligations for the Projects, thereby furthermore resulting in Reynold's sustaining damages in excess of any sums otherwise due Hutton, if any be proven. 31 142. Any l~sses sustained by Hutton were due to its own actions and inactions and failure to perform its subcontract obligations for the Projects. 143. Any claims for extra work for any of the Projects are barred by laches. 144. Hutton failed to pay its supplier, Specialty Products and Insulation, for materials supplied to the Projects, for which Reynolds had paid Hutton, which supplier has now made claim against Reynolds in the total amount of $9,625.14, which is more specifically identified in the following counterclaim. 145. The last date that Hutton performed services on the various Projects is as follows: (a) East Pennsboro Project - October 29, 2001 (b) Claremont Project - October 29, 2001 (c) Susquenita Project - November 9, 2001 (d) Milton Project - November 5, 2001 WHEREFORE, the Defendants Reynolds and Fidelity respectfully request this Honorable Court grant judgment in their favor and against Plaintiff Hutton, together with attorneys' fees and costs of suit. COUNTERCLAIM OF DEFENDANT REYNOLDS DIRECTED TO PLAINTIFF HUTTON 146. Defendants incorporate, by reference thereto, paragraph 1 through 145 of their Answer and New Matter as if same were fully set forth. Claremont Pro|eet 147. As a result of Hutton's breach of its contractual obligations and termination under the Claremont Project, Reynolds was required to expend costs of $30,125.75 to complete 32 said obligations, which exceeded the remaining contract amount due to Hutton at the time of termination by $13,739.70. 148. Furthermore, Hutton failed to pay its supplier, Speciality Products and Insulation, with regard to materials for which Reynolds had paid Hutton for the Claremont Project, and for which Reynolds has received claim from Specialty Products and Insulation in the amount of $1,917.82. 149. By virtue of Hutton's breach of the contract on the Claremont Project, Reynolds suffered damages of $15,657.52, plus legal costs and expenses in defending same, for which demand is asserted. Milton Project 150. As a result of Hutton's breach of its contractual obligations and termination under the Milton Project, Reynolds was required to expend costs of $8,503.77 to complete said obligations, which exceeded the remaining contract amount due to Hutton at the time of termination by $1,133.52. 151. Furthermore, Hutton failed to pay its supplier, Speciality Products and Insulation, with regard to materials for which Reynolds had paid Hutton for the Claremont Project, and for which Reynolds has received claim from Special Products and Insulation in the amount of $727.16. 152. By virtue of Hutton's breach of the contract on the Claremont Project, Reynolds suffered damages of $1,860.68, plus legal costs and expenses in defending same, for which demand is asserted, for which demand is asserted. 33 East Pennsboro Project 153. As a result of Hutton's breach of its contractual obligations and termination under the East Pennsboro Project, Reynolds was required to expend costs of $32,704.09 to complete said obligations, noting the remaining contract amount due to Hutton at the time of termination was $32,777.32. 154. Furthermore, Hutton failed to pay its supplier, Speciality Products and Insulation, with regard to materials for which Reynolds had paid Hutton for the Claremont Project, and for which Reynolds has received claim from Special Products and Insulation in the amount of $5,951.31. 155. By virtue of Hutton's breach of the contract on the East Pennsboro Project, Reynolds suffered damages of $5,951.31, for which demand is asserted. Susquenita Project 156. Hutton failed to pay its supplier, Speciality Products and Insulation, with regard to materials for which Reynolds had paid Hutton for the Susquenita Project, and for which Reynolds has received claim from Special Products and Insulation in the amount of $1,028.85. 157. By virtue of Hutton's breach of the contract on the Susquenita Project, Reynolds suffered damages of $1,028.85, for which demand is asserted. All Projects 158. The total amount incurred by Reynolds to complete all of the four Projects, and also to pay the Bond claim against Reynolds for Speciality Products and Insulation, as 34 hereinbefore related in the previous paragraphs, resulted in net damages sustained by Reynolds of $16,712.57, for which demand is made. WHEREFORE, the Defendants Reynolds and Fidelity respectfully request this Honorable Court grant judgment in their favor and against Plaintiff Hutton in the sum of $16,712.57, together with attorneys' fees and such additional fees and costs incurred by Reynolds in defense of the Specialty Products and Insulation claims, and as otherwise authorized by law, and costs of suit. By: Respectfully submitted, CALDWELL & KEARNS i~3°:~~r!SeEe5 !quire Harrisburg, PA 17110 (717) 232-7661 Attorneys for Defendants 03-247/55641 35 VERIFICATION I, Jay R. Reynolds, as President of Jay R. Reynolds, Inc., hereby verify that the averments in the foregoing Answer with New Matter and Counterclaim are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. By: j~. Retyn-o lds; Presid6,~t -' 30 VERIFICATION I, ~b/. ~,i'l,,~,$,r ~___,~~, as ~"~'t'~ ~$~/" ofFidelity & Deposit Company of Maryland, hereby verify that the averments in the foregoing Answer with New Matter are tree and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification to authorities. By: W. WILLIAM COOKSON, CLAIM COUNSEL 31 CERTIFICATE OF SERVICE AND NOW' this '~'~kn' day °f ~ ~'~x , 2003, I hereby certify that I have served a copy of the within document on the fo~wing by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Kelly H. Decker, Esquire Powell, Trachtman, Logan, Carrie, Bowman & Lombardo, P.C. 114 North Second Street Harrisburg, PA 17101 CALDWELL & KEARNS By: ~~x 14:16 Payment Bond AIA Document A312 - Electronic Format CONYRACTOR(Nam¢=,d~Wr=,): JAY R. REYNOLDS, INC. P.O. Box 326 Willow Street, PA 17584 FIDELITY A~ DEPOSIT COHPANY OP HAKYLAND 200 Berwyu Park, Suite 10~ Bec~yu~ PA ~3t~-1187 SUSQUENITA SCHOOL DISTRICT 1725 Schoolhouse Road Duncamnon, PA 17020-9540 CONSTRUCTION CONTRACT Daze: August 22, 2000 Amount $482,000.00 (Four ltuudred Eighty-Two Thousand Dollars) DescriptionOVca. e~:~tL~ra,..~: Contract #1509-2 - Plumbing Construction Additions and Renovations to Susquenita Elem. School, 1725 Schoolhouse BOND Date 0qo~ earlier than Conslrucfion Contract Date): Angus t 29, 2000 Amount: $482,000.00 (Four Modit~ca~ons m ~is Bond: CONTRACTO~ AS PRINCIPAL Company: JAY R~. REYNOLDS, INC. Hundred Eighty-Two (Coq,orate Serd) Thousand Dollars) [~ Non: SURETY Company: FIDELITY AND DEPOSIT Road, Duncannon, PA [ ] See Page COMPAbPf OF MARYLAND Attorney-in-Fac t ~ uoz (AnyaddidonMs;gnamr~ appearon ~el~page) (FORINFORM/I~ON ONLY-Nam~ dddtw-~andTdephone) AGE'NTo~BROKEpc Hurray Insurance Associates, Inc. 39 N. Duke Street, Lancaster, PA 17602 717-397-9600 OWNER'S REPP. ESENTATIVE (Architect. En85neer or other part~): AZA DOCUMENT .%~12- P~I~FOR~4^NCi5 BOND AND ~A~ ~. '~ ~' ' ~ ~' ~ ~C~ ~ OF ~C~C~ 1735 ~W YO~ A~. N_W~ W~I~O~ON, D.C. 2~5292 - ~1~ P~O · ~ 19~. W~ Un~ Electronic Format A3 t2-191M User Document: A3 ]2_CON -- 4/30/'2000. AIA I.{cense Number 100224, which wires on 10/6/2000 - Page #$ 04/15/2003 TUE 14:17 FAX 717 464 2784 JAY R REYNOLDS OO3 I The Contrac~r and the Surety, jointly a~d Severally bind themselves, d~eit heir% exRcutor~, ,administrators, s~cce~or$ ~d assigns to the Owner to pay for labor, matcrinls a~d equipment famished for use i~ the performance of the Construction Contract, which is incotoor,~ted herein by 2 With ~espec~ to th~ Owoer, bis obligation ~ell be null and void if the Contractor.. 2/! Promptly makes l:~yment, directly or indire~y, for all sums due Claimant~. a.,ld 2.2 De~d$, indemnifies md holds harmle~ the Owner fxom claims, demands, liens or suits by any person or en0ty whose claim, demand, ik"n or suit is for ~he payment for labor, maTeri~ls or eqUipmenx furnished for use in the performance of the Conslxuction Contract, provided the Owner has promptly notified the Contractor a~d the SureLy (at the address described in Paragraph 12) of any c~aims, demands, liens or suits and tendcrcd defense of suc,~ claims, de. ma. ntis, liens or suks to the Contractor and the Surety. and provided there is no Owner Default. 3 With re~pe~t m Claimants, this obligation shall be null and void if ~e Con~r ~ompUy mak~ ~Ym~t, d~ly or ~d~ectly. for all ~ due. 4 The Surety shall have no ob)igafion to Claimantx under lhis Bond until: 4.1 Claimams who are employed by or have a direct conlra~ wi~h the Contractor have given nork:~ to the Sun~ (at the address dascribed in Paragraph 12) and ~m a copy. or notice thereof, £o the Owner, s~ating lhat a claim is being made m~der this Bond and, with sllbst~ntial acc~-acy, the amount of~be claim. 4.2 Ch/mants who do no[ have a direct conttac~ with Ibe Contra~or. ,1 Have furnished wrinen notice to the Conlractor and sent a copy, or notice thereof, to the Owney, within 90 days after having last performed labor or last furnLd~ed materials or equipment included in ~e claim stating, with ~bstmfial accuracy, the amotmi of ~e claim and the name of the par~ to whom the materials were f~rnished or supplied or for whom ~c labor ~ done or performed; and .2 Have either received a rejec~Jon,in wholo or in pan fi'om thc Contractor, or not received wi~in 30 days of furnishing the above notice any communication from ~e Comractor by which Ihe Contractor has indicated ~bc claim will be paid directly or indirectly; and .3 Not having been paid within U~e above 30 days, have sent a written notice m ~e Surety (at the address desto'bed in Paxagraph 12) and ~ent a copy. or notice thereof, to the o~n~-, smdng that a ~}aim Ls being made under this Bond and enclosing a copy of the previous written notice furnished to thc Corltraclor. 5 Ifa notice required by Paragraph 4 is given by the Owner to the Co,,rrac~or or to ~e Surety, that is sufficient compliance. 6 When ~he ClaJman! ha_~ satisfied the conditiorm of Paragraph 4, dtc Surety shall promptly and ~ the Surety's expense take the following actions: 6.1 Send an answer to the CtaJmam, with a copy to the Owner, within 45 days after receipt of ~he claim, stating the amounts that are Undisputed and the basis for challenging any amoums that ~re disputed. 6.2 Pay or arrange for payment of any undisputed amount.5. ? The Su~:ty's total obligation shall not exceed the amoun! of this Bond, and the amount of this Bond shall be credked for ~y payments made in good faith by the Surety, 8 Amoum~. ow~l by the O~n~ to the Comractor under ~e Con,ruction Con~t shall be used for the l~'formance of the Conseu~ion Contract and to satisfy claims, ff any, under any Co~l~u,.~on PelYormance Bond. By the Court.tot ~uraishin§ a~d ~e Owner acc~ting this Bond, they agree Ihat all funds earned by the Con~'actor in the perforraa.qce of the Cons~ructon Contra~ are dedicated to satisfy obligafiolas of the Contractor ~d the Surety under this Bond, subject to ~he Owner's pric~-ity to use the fimds for the completion of rite wor~ 9 The Surcgt shall not be liable to the Owner, Claimants or other~ for obllgafions of the Contractor tha~ are ttrffehted lo the Construction Contracz. The Owner ~all not be liable for ~ paymcnt of imy co$1~ or expenses of a~y Claimant under this DOCUMENT A312- Pff]U~ORMANCE BOND A'NI~~£ ' ~CH/TEC-I~. 1735 CI~M~LeR. 196,4 ED. - ALs. ~. ~ AMER.I~TE O~ ~d wi~aut V~Jn~on untjJ ~c ~ o/cxp~ion ~ ~f~ ~, . ........... , O.u~ ~A ~ ~ ~ Elc~onic Fo~at A312- I Us~ ~cument: AS 12. CON .L 4/30/2000. AIA Lic~e Numb~ 1~224. whi~ ~P~es on 10/6~000 - Page ~6 I I I I ! I ! I I I I I I I I I 04/15/2003 TUE 14:17 FAX 717 464 2784 Bond, ~d shall ha,~¢ unQer t~$ l$ona no o~Aanons ~u mo~= paymc~ to, gi~e notices on beha}f of, or othe~ise have obligations to Claim~ under Thh Bond. 10 The Surety hereby waives ,not/ce of any change, including chan&~ of time, to the Consn"oc~ion Con~rac~ or to related subconn'acts, purchase orders and other obl{gadons. JAY R REYNOLDS t~] 004 14 Upon request by any person or entity appear/ng to be a potenfia} beneficiary of this Bond, ~h~ Connector shall prompdy fi~mish a copy of~is Bond ~ shall ~i~ a co~ to be made. 11 No .~uh or action shall be commenced by a Claimant under ibis Bond other than in a cou~ of competent jurisdiction in lhe lo~adon in which the work or p/fit of the work is localed or after the expiration of one year fi.om the date (l) on which the Claimant gav~ the aoti~ requited by Subparagraph 4.1 or Clause ~-.2.~, or (2) otx which the last labor or service was perforr~ed by anyone or the last materials or equiprtlerg were. famished by anyone under the Construct[on Contracl, whichever of(I) or (2) first occurs. If the provisions of this Paragraph are void or pmhiblted by law, ~he minimum g~riod of limita6on available lo sureties as a defense in the ~urisdietion of the suit shall be applicable 12 Notice to the Surety.. thc Owner or the Contractor shall be mailed or delivered ~o the address shown on the $iEnature page. Acr~al ~ceipt of notice by Sur=W, ~e ~er or ~e Con~or. how~ accomplished, ~$1 be Sa~t compliance ~ of ~e ~te ~ce/ved at ~e ad~s ~ho~ ~ · c signa~re p~e. 13 When this Bond has been furnished to comply with a smtutoD, or other legal requJremem/~ the location where the co~sa'uction was to be performed, any provL~fon bt th/s Bond conflicting with said statutory or legal requirement shall lac deemed deleted hcr~from and provisions confv~ming to ~uch smmzory or other legs/ requirement shall be deemed in~rporated herein. The /nt~nt is th~ ~i$ Bond shall b, construed ~ a statulory bond ~d not as a common law bond. 15 DEFINITIONS 15.1 Claimant: An individual or emiry hav/ng a direct c0nLra~ with thc Contractor or w~h a subcontractor of the Conlractor [o rum{ah labor, matc:r/aL~ or equipment for use ill the performance of the Contract_ The intq~t of this Bond shall be to include withou~ limitation in the terms "labor, mamrials or equipment" thru pa~ of water, gas, ~,wer, light, heat, oil, gasoline, telephone service or rental ~tuipment used bt the Construction Contract, architectural and engineex/ng gervices required fi~r perfonr~ance of the work or the Contractor and the Contra~or's -~ubconlractor$~ and all other ilems for which a mechanic's lien may be asser~d in thc jurisdiction whom the labor, materiaL~ or eq~ipme_qt were furnishe& 15.2 Constrdcfion Cgntrac~. The aiteement between ~¢ O~er a.qd the Contractor identified on the signana-e page, includbt§ ali Conwa~ Documcr~ts and chan§c~ 15.3 Owner Defauli; Fa/lur~ of the Owner, which has neither been remedied nor waived, m pay ~e Contractor ea' required by thc Con .Sl?uction Contract or w perform and complete or comply wi~ the other terms thereof. MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: (Space/a provided below for additional signatures of added parties, o{her ~han ~h .or.,e appearing on the ~ver page.) CONTKACTOR AS PRINCIPAL Company: (Corpvra~o s~ J S~naram and Title: Name ~ T~e: DOCUMENT A3]l- PERFORMANCE 8OND AND PA~ ~ - D~B~[: 19~ ~. - A~ ~ ~ A~ ~~ OF AR~S. ]735 ~W YO~ AV~U~ N.W~ WAS~ON, D.C. 2~ - ~ ~0 - MAR~ 19S7. W~; Unl~scd Eleca~onic Formal A312-191~4 User Doeumene A312.CObI -4/$0/2000. AIA License Number 100224. which expires on i 0/6/2000 ~ Page #7 04115/2003 TUE 14:18 FAX 717 4B4 Z784 R KE~ULD~ ~uu~ Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAND hOME OFFIGE; P.O. Know ALL MEN BY TI-II~RE PRESENTS: That the F1DELITY AND DEPOSIT COMPANY* OF MARYLAND, a corporation of thc Sta~e of Maryland, by W. I~. WALBRECHER, Vic~-Presldent, and T. E. SMITH, Assistan! Secrela~. in pursuance of authority &ranted by Article VL Section 2, of lilt By-Laws of said Company, which are set forth on thc tcvcts¢ side hereof and are hereby certified to be in full force and effect on the date hereof, does hereby nominate, constitute and appoint Joseph P. Noir, Dennis Dvorchak, Luelta G. Kauffman, David IL Bradbury, Anthony M. Mn¢inanti nnd Debra L. Rineer, all of Lancaster, Pennsylvania, EACH its true and lawful agent and Attorney-in-Fact, to make, execute, ~eal and deliver, for, and on its beha/f as surety, and a~ its act and deed: any and all bonds and undertakings and the execution of such bonds or undertakings in pu~uance of th~s¢ presents, sh/l~.be as binding t~b.R~said Company, as fully and amply, to all int~nt~ and purposes, as if they had been duly executed and acknowledged by the rc~lected o~he Company az its ol~ic~ in Balfmor¢, Md., in their own proper persons. This power of attorney l~vok~s that issued on beh~ph P. No,~r'daied S~ptember 9, 1996. The said Assistant Secretary does he,by certify thai thc' c~ on the r~n~-,~de ho'eof is a true copy of A~iclc VL Section 2. of thc By-~, or said Company. ~d ~ ,ow in rD=. IN Wfi NF. SS WHEREOF. thc said Vice-Presldonl and Aa~cr~taty hg~a,.q~'finto subscribed their names and affixed the Corporate S~at or the said FIDELITY AND DEPOSIT COMPANY OF MAR¥~,~'this 24th ~.~6plember. A.D. 1997. ATTEST: FIDELITY n~D~I:~i~POSlT~C.C~tI~ANY OF MARYLAND County of Balltm~c On this 2 th ~iay of September, A.D. 1997, befo~,~?oscribcr, a Notary Public of thc State of Mm-yland, duly co iss'oned and quallf~nL came W. R WALBRECHER. Vicc-Presldem and T. E.~I~ A~si~am Secretary ofthe FIDELITY AND DEPOSIT COMPANY OF MARYLAIqD, Io mc personally known ~o be thc individuals and o~.~'desctibed in and who execuled the pl~eccdin§ instrument, and they each acknowledged :he execution oft. he same. and bclng by mc dal~.~.~.;/~*vcrally and each tbr himself deposeth and sa|ltl, that they ate the said offer, t3 of die Company aforesaid, a~d that thg seal affixed to the p'~ffnlg inslxument is the Collx~ra~c Sca] o£ said Company, and that the said Corporate Seal and their signatures as such o~¢¢t~ were duly at, xed an~'subscribe, d to the said irkntru~ by the authority and direction of the said Corporation. IN '~F..STI]~ON'Y ~VH~REOF, ! tlavG hereunto ~et my Ila~ld a~d affixed my Official $cal the day and year f~t abow writ~¢a. Car~l J. Fader ~_ Notary Public My Cot~missi~ Expires: Augu:~ l, 2000 CERTIFICATE l, th~ undersigned, Assistant ~ecrctaty of thc FID£LITY AND DEPOSIT coMpANY OF MARYLAND, do hereby certify that the original Power of AUorney of which thc foregoing is a full. ~tue and correct copy, is in full force and effect on Ibc date of this certificate; and l do further certify that the Vice-Prasident who ~.c-cuted the said Power of Attorney was one of the additional Vice*Presidents specially anb'~n~zed by the Board of Directo~ to appoim any Attorney-in-Fact as pmvlde~d in Article VI, Se~,ion 2, of the By-Law~ of thc FIDELITY AND DEPOSIT COMPANY OF MARYLAND. This Power of Attorney and Cenifirn~e may be slgnrxl by facsimile trader and by authorily of the following rcsoluti0n ofthe Board of Directors of thc FIDELITY AND DEPOSIT CO]~IPANY OF MARYLAND at a meeting duly called and held on the 10th day of May, 1990. RESOLVED: "That th~ facsimilc or mechanic, ally rcp~'odu~d seal of the company and faeaimilc or mechanically reproduced $isnature of any Vice-President, Secretary, or Assistan! Seargtary of thc Company, whether made be~tofon: or hereafter, wherever appearing upon a certified copy of any power of al~Orncy issued by the C:O~INUly, shah be valid and binding upon the Company with thc ~aTl¢ force and effect as though manually afl~xcd.~ IN TESTIMONY WHEREOF, ! have hereunto subscribed my name and alii×ed tht con, orate ~eal of the said Company, this 29th .d~of August 2000 A~lstant Secretary L 1428- ! 56-654~ 04/15/2003 TUE 14:18 FAX 717 464 2784 JAY R REYNOLDS 006 EXTRACT FROM BY-LAWS OF FIDELITY AND DEPOSIT COMPANY OF MARYLAND "Article VI, Section 2. Thc Chairman of the Board, or the Pr~id~t, or any Executive Vic~Presidcnt, or any of the Senior Vice- Presidents or Viee-Pre~idents specially authorized so to do by the Board of Directors or by thc l~xccufivc Commitua:, shall have power, by and with the concurrence of the Secretary or any one of the Asaistam S¢cretar/e~, to appoint Resident Vice~-Presid~nts, Assistant Vice-Presidents and Attorncys-in-Fac~ as thc business oft. he Company my require, or to authorize any person or persons to execute on behalf of the Company any Ix, nas, undertakings, recogniw, qce. s, stipulations, policies, contracts, agreements, deeds, and releases and assignments of judgements, decrees, mortgages and instruments in d~e namrc of mortgalges,...and to affix the seal of the Company thcr~to-" ~IUTTON & RIGGS, INC., Plaintiff, V. [AY R. REYNOLDS, INC. and 7IDELITY & DEPOSIT COMPANY OF VlARYLAND, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVAND JURY TRIAL DEMANDED CIVIL ACTION 03-985-Civil NOTICE TO PLEAD TO: Jay R. Reynolds, Inc. and Fidelity & Deposit Company of Maryland c/o James Clippinger 3631 North Front Street Harrisburg, PA 17110 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN REPLY TO THE WITHIN HUTTON & RIGGS, INC.'S NEW MATTER WITHIN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. Date: May 19, 2003 C. Grai~g~r-Ii~wman - I.D. #15706 Kelly H. Decker I.D. #84886 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 HB:47589v1 4450-01 Powell, Trachtman, Logan, Carrie, Bowman & Lombardo, P.C. 114 N. Second Street Harrisburg, PA 17101 Phone: (717) 238-9300 C. Grainger Bowman, Esq. I.D. #15706 Kelly H. Decker, Esq. I.D. #84886 Attorneys for HUTTON & riggs, INC. TTON & RIGGS, INC., Plaintiff, V. lAY R. REYNOLDS, INC. and FIDELITY & DEPOSIT COMPANY OF vIARYLAND, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAL DEMANDED CIVIL ACTION 03-985-Civil HUTTON & RIGGS, INC.'S REPLY TO NEW MATTER OF DEFENDANT JAY R. REYNOLDS, INC. AND ANSWER TO COUNTERCLAIM WITH NEW MATTER Plaintiff Hutton & Riggs, Inc., by and through its attomeys Powell, Trachtman, Logan, Carrie, Bowman & Lombardo, P.C. hereby replies to the New Matter of Defendant Jay R. Reynolds, Inc. and Fidelity & Deposit Company of Maryland, and answers the Counterclaim of Defendant Jay R. Reynolds, Inc. as follows: REPLY TO NEW MATTER 125. Paragraph 125 is an incorporation paragraph to which no response is required. 126. Denied as a conclusion of law to which no response is required. To the extent the allegations are deemed factual, the payment bonds for each of the projects are documents which speak for themselves and any characterization Of them is therefore denied. 127. Denied as stated. The Bonds speak for themselves and therefore any characterization of them is denied. By way of further answer, Hutton actually performed labor and supplied materials for which it has not been paid by Reynolds. HB:47588v1 4450-01 128. Denied as a conclusion of law to which no response is required. 129. Denied as a conclusions of law to which no response is required. To the extent a response is required, the allegations are denied. By way of further answer, plaintiff was unable to complete performance of the contracted work for each of the projects by virtue of Reynolds' improper termination of plaintiff. Hutton intended to return to the project and complete the work upon full payment by Reynolds for work performed. 130. Denied as a conclusion of law to which no response is required. 131. Denied as a conclusion of law to which no response is required. To the extent the allegations in this paragraph are deemed factual, it is specifically denied that plaintiff was properly termination on any or all projects. It is further denied that plaintiff failed or refused to complete its contractual obligations. Rather, Reynolds denied plaintiff the opportunity to complete performance by virtue of Reynold's improper termination of Hutton. 132. Denied as to each and every subparagraph of this paragraph. a. Denied as stated. To the contrary, Hutton timely provided supporting documentation concerning its additional work on the projects. b. Denied. Hutton repeatedly requested change orders for additional work that Reynolds required that Hutton perform. However, Reynolds refused to provide written change orders but required Hutton to perform the work. c. Denied as a conclusion of law to which no response is required. To the extent the allegations are deemed factual, Reynolds, not Hutton, breached its contractual obligations by improperly terminated plaintiff and not issuing change orders while requiring Hutton to perform work. HB:47588v1 4450-01 2 d. Categorically denied. Plaintiff incorporates the paragraphs of its complaint as if fully set forth herein. e. Denied. It is specifically denied that Plaintiff has been fully paid for all work performed and materials supplied for each and all of the projects. Plaintiff incorporates each and every paragraph of the complaint as if fully set forth herein. f. Denied as a conclusion of law to which no response is required. By way of further answer, the contracts are documents which speak for themselves and any characterization is therefore denied. g. Denied as a conclusion of law to which no response is required. h. Denied as a conclusion of law to which no response is required. 133. Denied. It is specifically denied that Hutton failed to perform all of its required and specified work under each contract for all of the projects. It is further denied that Hutton was properly terminated on the projects. Rather, because Reynolds improperly terminated Hutton from the projects, Hutton was denied the opportunity to complete its work on each of the projects. By way of further answer, the contracts are documents which speaks for itself, and any characterization is therefore denied. It is further denied that Hutton has forfeited monies due. In fact, Hutton is entitled to payment for work performed. With respect to Reynolds rights under the contracts, the contracts are documents which speak for themselves and any characterization is therefore denied. Hutton demands immediate return of the equipment retained by Reynolds. 134. Plaintiff is without knowledge sufficient to form a belief as to the truth of the averments in paragraph 134, and therefore they are denied. Strict proof is demanded at trial. HB:47588v1 4450-01 3 135. Denied. The subcontract agreement is a document which speaks for itself, and any characterization of it is therefore denied. By way of further answer, it is specifically denied that the true value of the equipment of which Reynolds took possession was $4,480.00. Strict proof is demanded at trial. 136. Denied. In fact, Hutton did perform extra work for which it is entitled to be paid. By way of further answer, the contracts are documents which speak for themselves and any characterization is therefore denied. 137. Denied as a conclusion of law to which no response is required. By way of further answer, the contracts are documents which speak for themselves, and any characterizations are therefore denied. Strict proof is demanded at trial. 138. Denied as a conclusion of law to which no response is required. Plaintiff incorporates each and every paragraph of the complaint as if fully set forth herein. 139. Denied as a conclusion of law to which no response is required. Plaintiff incorporates each and every paragraph of the complaint as if fully set forth herein. Denied. Plaintiff incorporates all of the averments of its complaint as if fully set 140. forth herein. 141. Denied as a conclusion of law to which no response is required. To the extent the allegations are deemed factual, they are denied. 142. Denied. To the contrary, Hutton performed in accordance with the obligations set forth in the subcontracts for all of the projects. 143. Denied as a conclusion of law to which no response is required. 144. Admitted in part, denied in part. It is admitted only that Hutton did not pay HB:47588v1 4450-01 4 Specialty Products and Insulation for all of the materials supplied to the projects. The remaining allegations in this paragraph are denied as Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. 145. Denied as stated as to each subpart of this paragraph. Hutton performed services on the various projects until at least December 7, 2001. WHEREFORE, Plaintiff Hutton & Riggs, Inc. respectfully requests that this Honorable Court grant judgment in its favor and against Defendants Jay R. Reynolds, Inc. and Fidelity & Deposit Company of Maryland, together with attorneys' fees, interests, and costs of suit, as well as any other fees deemed appropriate. HUTTON & RIGGS, INC.'S ANSWER TO COUNTERCLAIM OF DEFENDANT REYNOLDS 146. Paragraph 146 is an incorporation paragraph to which no response is required. Plaintiff Hutton incorporates its complaint as well as its reply to the new matter of Reynolds as if fully set forth herein. Claremont Project 147. Denied. The allegations that Hutton breached its contractual obligation arc denied as conclusions of law to which no response is required. By way of further answer, Hutton did not breach any of its contractual obligations, rather Reynolds breached its obligations by improperly terminating Hutton from the project and failing to allow Hutton the opportunity to complete its work on the project. With regard to Reynolds' costs to complete the project work, a~er reasonable investigation, Hutton is without'sufficient knowledge or information to form a belief as to the truth of these averments, and therefore they are denied. Strict proof is demanded at trial. 148. Admitted in part, denied in part. It is admitted only that Hutton did not fully pay HB:47588v1 4450-01 5 its supplier, Specialty Products and Insulation. However, that is because Hutton was improperly terminated fi.om the project and Reynolds took possession of the materials. At all times, Hutton intended to return to the project to complete the work upon full payment for work performed on the Claremont project. Strict proof is demanded at trial. 149. Denied as a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Hutton breached the contract on the Claremont project. After reasonable investigation, Hutton is without knowledge sufficient to form a belief as to the truth of the alleged suffered damages of Reynolds, and therefore these allegations are denied. Milton Project 150. Denied. The allegations that Hutton breached its contractual obligations on the Milton Project are denied as conclusions of law to which no response is required. By way of further answer, Hutton did not breach any obligations under the Milton project subcontract. Rather, Reynolds breached its obligations by improperly terminating Hutton from the project and by failing to allow Hutton an opportunity to complete its work under the contract. With regard to Reynolds' alleged expenditures to complete the project, after reasonable investigation, Hutton is without knowledge or information sufficient to form a belief as to the allegations in this paragraph and therefore they are denied. 151. Admitted in part, denied in part. It is admitted only that Hutton did not fully pay its supplier, Specialty Products and Insulation. However, that is because Hutton was improperly terminated fi.om the project and Reynolds took possession of the materials. At all times, Hutton intended to return to the project to complete the work upon full payment by Reynolds for work performed on the Milton project, improperly identified by Reynolds in this paragraph as the HB:47588vl 4450-01 6 Claremont Project. Strict proof is demanded at trial. 152. Denied. It is denied that Hutton breached the contract as a conclusion to which no response is required. With regard to Reynolds' alleged damages, Hutton is without knowledge or information sufficient to form a belief as to the truth of these allegations, and therefore they are denied. East Pennsboro Project 153. Denied. The allegations that Hutton breached its contractual obligations on the East Pennsboro Project are denied as conclusions of law to which no response is required. By way of further answer, Hutton did not breach any obligations under the East Pennsboro subcontract, rather, Reynolds breached its obligations by improperly terminating Hutton from the project and by failing to allow Hutton an opportunity to complete its work under the contract. As to Reynolds' alleged expenditures to complete the project, after reasonable investigation, Hutton is without knowledge or information sufficient 'to form a belief as to the allegations in this paragraph and therefore they are denied. 154. Admitted in part, denied in part. It is admitted only that Hutton did not fully pay its supplier, Specialty Products and Insulation. However, that is because Hutton was improperly terminated from the project and Reynolds took possession of the materials. At all times, Hutton intended to return to the project to complete the work upon full payment for work performed on the East Pennsboro project, improperly referred to by Reynolds in this paragraph as the Claremont project. 155. Denied. It is denied that Hutton breached the contract as a conclusion to which no response is required. As to Reynolds' alleged damages, Hutton is without knowledge or HB:47588v1 4450-01 7 information sufficient to form a belief as to the truth of these allegations, and therefore they are denied. Susqnenita Project 156. Admitted in part, denied in part. It is admitted only that Hutton did not fully pay its supplier, Specialty Products and Insulation. However, that is because Hutton was improperly terminated from the project and Reynolds took possession of the materials. At all times, Hutton intended to return to the project to complet.e the work upon full payment for work performed on the Susquenita project. 157. Denied. It is denied that Hutton breached the contract as a conclusion to which no response is required. With regard to Reynolds' alleged damages, Hutton is without knowledge or information sufficient to form a belief as to the truth of these allegations, and therefore they are denied. All Projects 158. Denied. After reasonable investigation, Hutton is without information or knowledge sufficient to form a belief as to the truth of the averments in paragraph 158, and therefore they are denied. WHEREFORE, Plaintiff Hutton & Riggs, Inc. respectfully requests that this Honorable Court grant judgment in its favor and against Defendants Jay R. Reynolds, Inc. and Fidelity & Deposit Company of Maryland in the sum of$110,251.68, plus costs, fees, interest and attorneys' fees as permitted by law. NEW MATTER TO COUNTERCLAIM OF JAY R. REYNOLDS, INC 159. Plaintiff Hutton hereby incorporates by reference its complaint and all of the HB:47588v1 4450-01 8 162. limitations. 163. 164. 165. 166. otherwise. 167. failures. 168. above paragraphs as if fully set forth here at length. 160. At all times, Hutton performed all of its contractual obligations and performed its responsibilities whether contractual or otherwise. 161. Defendants' counterclaim fails to state a cause of action against plaintiff upon which relief can be granted. Defendants' claims are barred in whole or in part by the applicable statutes of Defendants' claims are barred in whole or in part by the doctrine of laches. Defendants' claims are barred in whole or in part by the doctrine of waiver. The Defendants' claims are barred in whole or in part by the doctrine of estoppel. Plaintiff Hutton did not breach any duty or obligation owed, contractual or Any damages sustained by defendants were caused entirely by its own acts or Hutton was improperly terminated from the projects and therefore denied an opportunity to complete its work. Hutton is entitled to its claims for any and all additional work on each of the four projects. Any losses sustained by defendant was due to its own actions or inactions and failure to perform its contractual obligations for the projects. 169. 170. of Reynolds. 171. Reynolds is in material breach of the contracts on each of the four projects. Reynolds' counterclaim should be dismissed for failure of performance on the part Reynolds is not entitled to payment because of its own material breaches of HB:47588v1 4450-01 9 contract. 172. Reynolds' failure to perform work and provide payment to Hutton as required by the terms of the contract constitutes non-performance of the contract barring Reynolds' counterclaim. 173. Reynolds repeatedly failed to issue change orders to Hutton on the projects, despite Reynolds' repeated requests. 174. Reynolds is not owed any monies by Hutton; to the contrary, Hutton is owed monies by Reynolds. 175. Hutton demands immediate return of the lift and trailer in accordance with the Agreement. WHEREFORE Plaintiff Hutton & Riggs, Inc. respectfully requests that this Honorable Court grant judgment in its favor and against Defendants Jay R. Reynolds, Inc. together with costs, fees, attorneys' fees, and any other costs and fees as permitted by law. Date: May 19, 2003 HB:47588vl 4450-01 Respectfully submitted, POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. C. Grainger t3~w/nhn I.D. #15706 Kelly H. Decker I.D. #84886 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 10 0~/08/2003 0~:25 ~57038~228 v n_Uq,, I verify that the statements made the foregoing Hutton andRlggs, Inc. 's~lnswer to New Matter of Defendant Jay R. Reynolds, Inc. and ~tnswer to Counterclaim with New Matter are true and cOrrect to the best of my knowledge, infonnatlon and belief. I undemtamt that any false st~nts made are subject to tl~ peaalties of 18 Pa.C.S. §4904 relating to unsworn falsification to attlt~rities. I-IB;44252v2 2~4-14 HB 4~881v'1 CERTIFICATE OF SERVICE AND NOW, on May 19, 2003, I hereby certify that I have served a tree and correct copy of the within Hutton & Riggs, Inc.'s Reply to New Matter of Defendant Jay R. Reynolds, Inc. and Answer to Counterclaim with New Matter upon the following person(s) by regular first class United States mail, postage prepaid. James R. Clippinger, Esq. Caldwell & Keams 3631 N. Front Street Harrisburg, PA 17110 Kelly H. DeLq~er HB:47625v1 4450-01 ~3~TTON & RIGGS, INC., Plaintiff, V. JAY R. REYNOLDS, INC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants. IN THE COURT OF COMMON PLEAS, ~UMBERLAND COUNTY, PENNSYLVANI2 JURY TRIAL DEMANDED CIVIL ACTION 03-985-Civil PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Please substitute the attached original verification page of Joy Ann Hutton for the faxed verification page that was attached to Hutton & Riggs, Inc.'s Reply to New Matter of Defendant Jay R. Reynolds, Inc. and Answer to Counterclaim with New Matter which was served and filed on May 19, 2003. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. Date: May 20, 2003 C. 6rain~er~owman~ I.D. #15706 Kelly H. Decker I.D. #84886 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 HB:47639v1 4450-01 VERIFICATION I verify that the statements made the foregoing Hutton and Riggs, Inc. 's Answer to New Matter of Defendant Jay R. Reynolds, Inc. and Answer to Counterclaim with New Matter are true and correct to the best of my knowledge, information and belief. I understand that any false statements made are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. HB:44252v2 2664-14 HB 46881vl CERTIFICATE OF SERVICE AND NOW, on May 20, 2003, I hereby certify that I have served a true and correct copy of the within Praecipe to Substitute Verification upon the following person(s) by regular first class United States mail, postage prepaid. James R. Clippinger, Esq. Caldwell & Keams 3631 N. Front Street Harrisburg, PA 17110 Kelly H. DeckJer ' HB:47625v1 4450-01 HUTTON & RIGGS, 1NC. Plaintiff VS. JAY R. REYNOLDS, 1NC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants : 1N THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : JURY TRIAL DEMANDED : CIVIL ACTION NO. 03-985 Civil DEFENDANT, JAY R. REYNOLDS, INC.'S, REPLY TO NEW MATTER OF PLAINTIFF~ HUTTON & RIGGS, INC. AND NOW, comes the Defendant, Jay R. Reynolds, Inc. by and through its attorneys, Caidwell & Kearns, and submits the following Reply to Plaintiff's New Matter, stating in support thereof, as follows: 159. This paragraph but incorporates by reference the averments contained in Plaintiff's Complaint, and in response thereto, Defendant, Jay R. Reynolds, Inc. (hereinafter, "Reynolds") incorporates its responses to said same paragraphs as if fully set forth by reference thereto. 160. Denied. Plaintiff Hutton did not perform its contractual obligations or perform its responsibilities by virtue of its abandonment of ail of the Projects and failure to cure said default, as more particularly set forth in the Answer with New Matter and Counterclaim of Defendant Reynolds, which averments are all incorporated herein by reference thereto as if same were fully set forth. 161. Denied. The averments of paragraph no. 161 set forth a conclusion of law to which no response is required or appropriate. 162. Denied. The averments of paragraph no. 162 set forth a conclusion of law to which no response is required or appropriate. 163. Denied. The averments of paragraph no. 163 set forth a conclusion of law to which no response is required or appropriate. 164. Denied. The averments of paragraph no. 164 set forth a conclusion of law to which no response is required or appropriate. 165. Denied. The averments of paragraph no. 165 set forth a conclusion of law to which no response is required or appropriate. 166. Denied. The averments of paragraph no. 166 set forth a conclusion of law to which no response is required or appropriate. In the event and to the extent any or all of the averments of paragraph no. 166 are found not to be a conclusion of law and/or fact, same are denied. By way of further answer, Plaintiff Hutton did breach its contractual obligations to Defendant Reynolds by abandoning the Projects without completing same and performing its required responsibilities following demand, as more particularly set forth in Defendant Reynolds Answer with New Matter and Counterclaim, the averments of which are all incorporated herein by reference thereto as if same were fully set forth. 167. Denied. The averments of paragraph no. 167 set forth a conclusion of law to which no response is required or appropriate. 168. Denied. The averments of paragraph no. 168 set forth a conclusion of law to which no response is required or appropriate. In the event and to the extent any or all of the averments of paragraph no. 168 are found not to be a conclusion of law and/or fact, same are denied. By way of further answer, as set forth in the Answer with New Matter and Counterclaim of Defendant Reynolds, at no time did PlaintiffHutton perform additional work for which it was entitled to compensation and/or at no relevant time did PlaintiffHutton provide any appropriate and required substantiating documentation that it performed any additional work and was, therefore, not entitled to any additional compensation whatsoever, as alleged. In further response, Defendant Reynolds incorporates its responses as contained in its Answer with New Matter and Counterclaim by reference thereto as if same were fully set forth. 169. The averments of paragraph no. 169 set forth a conclusion of law to which no response is required or appropriate. In the event and to the extent any or all of the averments of paragraph no. 169 are found not to be a conclusion of law and/or fact, it is specifically and categorically denied that Defendant is in material breach of any of the subject contracts and, to the contrary, timely and fully performed its obligations thereunder. Indeed, it was Plaintiff Hutton who breached said contracts by abandoning the Projects and/or failing to timely complete the work thereon as more fully set forth in Defendant Reynold's Answer with New Matter and Counterclaim, which is incorporated herein by reference as if same were fully set forth. 170. The averments of paragraph no. 170 set forth a conclusion of law to which no response is required or appropriate. In the event and to the extent any or all of the averments of paragraph no. 170 are found not to be a conclusion of law and/or fact, Defendant Reynolds incorporates its response to paragraph no. 169 by reference thereto. 171. The averments of paragraph no. 171 set forth a conclusion of law to which no response is required or appropriate. In the event and to the extent any or all of the averments of paragraph no. 171 are found not to be a conclusion of law and/or fact, Defendant Reynolds incorporates its response to paragraph nos. 168 and 169 by reference thereto. 172. The averments of paragraph no. 172 set forth a conclusion of law to which no response is required or appropriate. In the event and to the extent any or all of the averments of paragraph no. 172 are found not to be a conclusion of law and/or fact, Defendant Reynolds incorporates its response to paragraph nos. 168 and 169 by reference thereto. 173. Denied. As more fully set forth in Defendant Reynold's Answer with New Matter and Counterclaim, which is incorporated herein by reference thereto, Defendant Reynolds did not issue any change orders by virtue of the fact that Plaintiff Hntton failed and/or refused to present any supporting information or documentation at any relevant time that it was entitled to any such change orders or additional compensation as required by the various subject contracts. It is furthermore noted that Plaintiff Hutton, pursuant to the written contract documents, was required to claims for additional time or costs and expenses prior to proceeding to executing such work, which obligation was breached by Plaintiff Hutton. In further response, Plaintiff Hutton performed no extra work and was entitled to no compensation even in the event it complied with the contract documents, which it clearly and specifically failed to do. 174. The averments of paragraph no. 174 set forth a conclusion of law to which no response is required or appropriate. 175. Admitted in part and denied in part. It is admitted that Plaintiff Hutton has made such a demand for return, but it is denied that Plaintiff Hutton has any right of entitlement to such return and, in further response, Defendant Reynolds incorporates its response as contained in paragraph nos. 25-27 of its Answer with New Matter and Countemlaim, which is incorporated by reference thereto. WHEREFORE, the Defendant Reynolds respectfully requests this Honorable Court grant judgment in its favor and against Plaintiff Hutton in the sum of $16,712.57, together with attorneys' fees and such additional fees and costs incurred by Reynolds in defense of the Specialty Products and Insulation claims, and as otherwise authorized by law, and costs of suit. Respectfully submitted, Dated: By: CALl Att 3631~ ~ELL & KEARNS ~;rq 1~ s9quir e rth Front Street Han'isburg, PA 17l 10 (717) 232-7661 Attorneys for Defendants 03-247/57226 VERIFICATION I, Jay R. Reynolds, as President of Jay R. Reynolds, Inc., hereby verify that the avermems in the foregoing Reply to New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification to authorities. By: &l~. R~no'lds, l~resi'~nt CERTIFICATE OF SERVICE AND NOW, this ~day of C~ ,2003, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Kelly H. Decker, Esquire Powell, Trachtman, Logan, Carrie, Bowman & Lombardo, P.C. 114 North Second Street Harrisburg, PA 17101 CALDWELL & KEARNS By: ~~ Powell, Trachtman, Logan. Carrie & Lomhardo, PC. 114 N. Second Street Harrisburg, PA 17101 Phone: (717) 238-9300 Kelly H. Decker, Esq. I.D. #84886 Attorneys for Plaintiff HUTTON & riggs, INC HUTTON & RIGGS, 1NC., Plaintiff, V. JAY R. REYNOLDS, 1NC. and ~IDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants. N THE COURT OF COMMON PLEAS, 2UMBERLAND COUNTY, ?ENNSYLVANIA IURY TRIAL DEMANDED :IVIL ACTION 03-985-Civil MOTION OF COUNSEL KELLY H. DECKER, ESQ. AND THE LAW FIRM OF POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. TO WITHDRAW AS COUNSEL FOR PLAINTIFF NOW COMES, Kelly H. Decker, Esq. and the law firm of Powell, Trachtman, Logan, Carrie & Lombardo, P.C. ("Petitioner") filing this motion to withdraw as counsel for Plaintiff and in support thereof aver as follows: 1. On March 4, 2003, Plaintiff' Hutton & Riggs, Inc. ("PlaintiffTM) instituted the above-captioned action by filing a Complaint. 2. On April 29, 2003, Defendants Jay R. Reynolds, Inc. and Fidelity & Deposit Company of Maryland ("Defendants") filed an answer, new matter and counterclaim to the Complaint. 3. 4. 5. On August 29, 2003 discovery was served by Plaintiff on Defendants. On September 25, 2003, Defendants responded to Plaintiff's discovery requests. Despite a fee agreement requiring payment by Plaintiff of Petitioner's legal services on an hourly basis and for reimbursement of copying costs and notwithstanding the HB:49694v1 4450-01 submission of monthly invoices to the Plaintiff, Plaintiffhas failed to pay Petitioner for any fees and costs incurred since approximately April of 2002. 6. The continued representation of Plaintiff without payment of these litigation costs, including legal services and expenses has resulted in and will fm~ther result in an unreasonable financial burden on Petitioner, and good cause exists therefore under Rule 1.16(c)(5) of the Pennsylvania Rules of Professional Conduct for Petitioner' s withdrawal. 7. Plaintiff was notified in writing on numerous occasions that the decision not to pursue the action in accordance ~vith the engagemeut agreement was grounds for Petitioner's withdrawal. 8. On February 19, 2004, Plaintiffwas notified in writing that Petitioner was providing Plaintiff 30 days to substitute counsel if Plaintiff wished to continue to pursue this action. Plaintiff was further notified that at the expiration of thirty (30) days, Petitioner would withdraw as counsel. 9. Again, on February 24, 2004, Plaintiff was notified in writing that Petitioner would withdraw as counsel within 30 days. 10. Plaintiff has determined not pursue this lawsuit !in accordance with the engagement agreement entered into with Powell Trachtman. 11. Plaintiff has failed and refused to cure the aforementioned deficiencies. 12. Effective December 31, 2003, C. Grainger Bowman, Esq. resigned from Powell, Trachtman, Logan, Carrie & Lombardo, P.C. However, he did not withdraw his appearance from this case. At all times relevant hereto, Plaintiff remained a client of the firm Powell, Trachtman, Logan, Carrle & Lombardo, P.C. and Kelly H. Decker, Esq. remained counsel for Plaintiff. HB:49694v1 4450-01 13. I certify that counsel for Defendants, James Clippinger, concurs in this motion provided that Hutton & Riggs, Inc. obtain "replacement" counsel of record within 45 days of the Court's order so that the case may timely proceed. WHEREFORE, C. Grainger Bowman, Esq. Kelly H. Decker, Esq. and Powell, Trachtman, Logan, Carrle & Lombardo, P.C. respectfully request that this motion to withdraw as counsel be granted. Respectfully submitted, POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. Kelly H. Decl~er I.D. #84886 114 N. Second Street Harrisburg, PA 17101 (717) 238-9300 Attorneys.~r Plaint!Il' Date: April 5, 2004 HB:49694vl 4450-01 CERTIFICATE OF SERVICE AND NOW, on April 5, 2004, I hereby certify that I have served a tree and correct copy of the within Motion of Counsel, Kelly H. Decker, Esq. and the Law Firm of Powell, Trachtman, Logan, Carrie & Lombardo, P.C. to Withdraw as Counsel for Plaintiff upon the following person(s) by regular first class United States mail, postage prepaid. James R. Clippinger, Esq. Caldwell & Keams 3631 N. Front Street Harrisburg, PA 17110 By ~.(_J~.~ H-~ Kelly H. D~er HB:47625vl 4450-01 HUTTON & RIGGS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JAY R. REYNOLDS, INC., and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants CIVIL ACTION - LAW NO. 03-0985 CIVIL TERM ORDER OF COURT AND NOW, this 12th day of April, 2004, upon consideration of the Motion of Counsel Kelly H. Decker, Esq., and the Law Finn of Powell, Trachtman, Logan, Carrie & Lombardo, P.C. To Withdraw as Counsel for Plaintiff', a Rule is hereby issued upon Plaintiff and Defendants to show cause why the relief requested should not be granted. RULE RETURNABLE within 10 days of service. BY THE COURT, C. Grainger Bowman, Esq. Kelly H. Decker, Esq. Powell, Tmchtman, Logan, Carrle & Lombardo, P.C. 114 N. Second Street Harrisburg, PA 17101 Attorneys for Plaintiff ff/JWesley Ole~/~h, ~ L-j. James R. Clippinger, Esq. 3631 N. Front Street Harrisburg, PA 17110 Attorney for Defendants Xi'v~(i'~OHlO~d ?,',LL -JO Hutton & Riggs, Inc. 94 Hidlay Church Road Bloomsburg, PA 17815 Plaintiff :re Powell, Trachtman, Logan, Can'le & Lombardo, P.C. 114 N. Second Street Han-isburg, PA 17101 Phone: (717) 238-9300 Kelly H. Decker, Esq. I.D. t/84886 Attorneys for Plaintiff HUTTON & r/ggs, INC. HUTTON & RIGGS, 1NC., Plaintiff, V. JAY R. REYNOLDS, 1NC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants. IN THE COURT OF COMMON PLEAS, EUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAL DEMANDED 2IVIL ACTION 03-985-Civil MOTION TO MAKE RULE ABSOLUTE Petitioners Kelly H. Decker, Esq. and the law firm of Powell, Trachtman, Logan, Carrle, & Lombardo, P.C., hereby file this motion to make role absolute pursuant to Rule 206.7 and in support of which states as follows: 1. On April 5, 2004, the Petitioner filed a Motion of Counsel Kelly H. Decker, Esq. and the law firm of Powell, Trachtman, Logan, Carrle & Lombaxdo, P.C. to Withdraw as Counsel for Plaintiff Hutton & Riggs, Inc. 2. On April 12, 2004, the Court issued a Rule to Show Cause, directing that any answer to the motion be filed within ten days of the date entered. A copy of the Motion and Rule to Show Cause are attached hereto as Exhibit A. 3. A copy of the Court's Order was served upon Counsel for Defendant and upon PlaintiffHutton & Riggs, Inc. 4. An answer or other responsive pleading to the Motion was due on or before April 22, 2004. HB:50254vl 4450-01 5. As of this date, no answer or other responsive pleading has been filed in response to the Motion. 6. Pursuant to Pa.R.C.P. 206.7, if no answer has been timely filed, all averments of fact in the motion may be deemed admitted for the purposes of this subdivision and the court shall enter an appropriate order. WHEREFORE, Petitioners Kelly H. Decker, Esq. and Powell, Trachtman, Logan, Carrle & Lombardo, P.C. respectfully requests that the Court grant PelStioner's Motion to Withdraw as Counsel for Plaintiff Hutton & Riggs, Inc. and grant such other relief as this Court deems just and appropriate. Date: April 26, 2004 By: POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. Kelly H. Dec!~er, Esq. ED. #84886 114 North Second St. Harrisburg, PA 17101 (717) 238-9300 Attorney for Plaintiff HB:50254vl 4450-01 CERTIFICATE OF SERVICE AND NOW, on April 26, 2004, I hereby certify that I have served a true and correct copy of the within Motion to Make Rule Absolute upon the following person(s) by regular first class United States mail, postage prepaid. James R. Clippinger, Esq. Caldwell & Kearns 3631 N. Front Street Harrisburg, PA 17110 Hutton & Riggs, Inc. 94 Hidlay Church Road Bloomsburg, PA 17815 Kelly H. D~cker HB:47625vl 4450-01 HUTTON & RIGGS, 1NC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND Cou2qTY, PENNSYLVANIA CIVIL ACTION - LAW JAY R. REYNOLDS, INC., and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants NO. 03-0985 CIVIL TERM ORDER OF COURT AND NOW, this 5th day of May, 2004, upon consideration of the Motion To Make Rule Absolute filed by Kelly H. Decker, Esq., and the Law Firm of Powell, Trachtman, Logan, Carrie & Lombardo, P.C., the motion is granted and the Rule issued on April 12, 2004, is made absolute and Kelly H. Decker, Esq., and the Law Firm of Powell, Trachtman, Logan, Carrie & Lombardo, P.C., are permitted to withdraw as counsel for Plaintiff. BY THE COURT, C. Grainger Bowman, Esq. Kelly H. Decker, Esq. v, Powell, Trachtman, Logan, Carrle & Lombardo, P.C. 114 N. Second Street Harrisburg, PA 17101 Attorneys for Plaintiff vrjames R. Clippinger, Esq. 3631 N. From Street Harrisburg, PA 17110 Attorney for Defendants A  tWesley Oler,~h~., J. HUTTON & RIGGS, INC. Plaintiff VS, JAY R. REYNOLDS, INC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : JURY TRIAL DEMANDED : CIVIL ACTION NO. 03-985 CIVIL PETITION TO DISMISS PLAINTIFF'S COMPLAINT AND NOW, come Defendants Jay R. Reynolds, Inc. and Fidelity & Deposit Company of Maryland, by and through its attorneys, Caldwell & Kearns, and files the within Petition to Dismiss Plaintiff's Complaint; and in support thereof, avers as follows: 1. On or about March 4, 2003, Plaintiff Hutton & Riggs, Inc., ("Plaintiff"), filed a Complaint against Defendants Jay R. Reynolds, Inc. and Fidelity & Deposit Company of Maryland, ("Defendants"). 2. Plaintiff is a professional corporation organized and existing under the laws of the Commonwealth of Pennsylvania with a principal place of business located at 94 Hidlay Church Road, Bloomsburg, Pennsylvania. 3. On or about April 29, 2003, Defendants filed an Answer with New Matter and Counterclaim to Plaintiff's Complaint. 10. On or about May 19, 2003, Plaintiff Replied to Defendants' New Matter and Answered Defendants' Counterclaim with New Matter. On or about June 2, 2003, Defendant Jay R. Reynolds, Inc. Replied to Plaintiff's New Matter. On or about April 5, 2004, Plaintiff's Counsel, Kelly H. Decker, Esquire and the Law Firm of Powell, Trachtman, Logan, Carrie, Bowman & Lombardo, P.C., filed a Motion to Withdraw as Counsel for Plaintiff. Defendants' Counsel concurred with Plaintiff's Motion to Withdraw as Counsel provided that Plaintiff obtain replacement counsel of record within 45 days of the Court's Order so that the case may timely proceed. A true and correct copy is attached as "Exhibit A". On or about April 12, 2004, the Court issued a Rule to Show Cause why Plaintiff's Motion to Withdrawal as counsel should not be granted. See "Exhibit B". On or about April 26, 2004, Plaintiff's counsel filed a Motion to Make Rule Absolute. See "Exhibit C". On or about May 5, 2004, this Honorable Court entered an Order granting the relief requested and permitting Plaintiff's Counsel, Kelly H. Decker, Esquire and the Law Firm of Powell, Trachtman, 11. 12. 13. Logan, Carrie, Bowman & Lombardo, P.C., to Withdraw as Counsel. See "Exhibit D". A Corporation is permitted to appear in Court only through an attorney licensed to practice law. Walacavage v. Excel12000, 331 Pa. Super. 137, 142,480 A.2d 281,283 (1984). Counsel for Defendants, by certified letter dated May 11, 2004, did inquire of Plaintiff as to whether they would promptly obtain substitute counsel as Defendants wished to pursue and complete formal discovery. A true and correct copy of said correspondence is attached hereto with the return receipt card signifying receipt on or about May 13, 2004. See "Exhibit E". Previously, Defendants did serve on or shortly after April 29, 2003, Request for Production of Documents, which previous counsel did file a belated response on or about July 16, 2003, and thereafter produced copies of Plaintiff's files, but which did not contain any documents supporting the allegations contained in the Complaint. Accordingly, Defendants sought and seeks timely further discovery, but has been prevented to do so by the withdrawal of previous legal counsel and Plaintiff's failure to retain substitute counsel, thereby precluding the action to proceed in a proper and timely manner. 14. To date, Plaintiff has failed to respond to Defendants' correspondence of May 11,2004, Exhibit "E", or to otherwise retain legal counsel. 15. Accordingly, the Defendants request that Plaintiff's Compliant be dismissed with prejudice. WHEREFORE, Defendants Jay R. Reynolds, Inc. and Fidelity & Deposit Company of Maryland respectfully request this Honorable Cour~ grant the Petition to Dismiss, and dismiss Plaintiff's Complaint with prejudice. Respectfully submitted, CALDWE~& KEARNS BY: J~e~ing~, Esquire Harrisburg, PA 17110 (717) 232-7661 Attorney for Defendants CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Hutton & Riggs, Inc. 94 Hidlay Church Road Bloomsburg, Pennsylvania 17815 CALDWELL & KEARN,S Dated: 03247/75082 Exhibit A HUTTON & RIGGS, INC., Plaintifl~ JAY R, REYNOLDS, INC. and FIDEI,ITY & DEPOSIT COMPANY OF MARYLAND, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAl, DEMANDED CIVIL ACTION 03-985-Civil ORDER AND NOW, this ___ day of 2004, upon consideration of'the within Motion of Counsel Kelly If. Decker, Esq. and the Law Firm of Powell. Traclmnan, Logan, Carrie & Lombardo, P,C. to Withdraw its Counsel for Plaintil'tk and any response therelo, it is hereby ORDERED that the Motion to Withdraw is GRANTED. ,J. HB 49~394vl 4450-01 Phone (717) 238 9300 Kelly H Decker, Esq ID #84886 Auorncys tbr Plaintiff I IUTJON & riggs. IN£ HUTTON & R1GGS, INC., Plaintiff, JAY R. REYNOLDS, INC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants. iN THE COURi' OF COMMON PI .EAS. CUMBERLAND COUN FY, PENNSYL¥'ANIA JURY TRIAL DEMANDED CIVIL ACTION 03-985-Civil M~OTION OF COUNSEL KELLY H. DECKER, ESQ. AND THE LAW FIRM OF POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. TO WITHDRAW AS COUNSEL FOR PLAINTIFF~ NOW COMES, Kelly' H. Decker, Esq. and the law firm ofPoweII. Frachtman, Logan, Carrie & Lombardo, P.C. ("Petitioner") filing this motion to withdraw as counsel lbr Plaintiff and in support thereof aver as follows: 1. On March 4, 2003, PlaintiffHutton & Riggs, Inc. ("Plaintiff") instituted the above-captioned action by filing a Complaint. 2. On April 29, 2003. Defendants .la3, R. Reynolds, Inc. and Fidelity & Deposit Colnpany of Maryland CDefendants') filed an answer, new matter and cotmterclaim to the Cmnplaint. 3. 4. 5. On August 29, 2003 discovery was served by Plaintiff on Defendants. On September 25. 2003, DefeDdants respoDded to Plaintiff-s discovery requests. Despite a fee agreement requMng payment by PlaiDtiffof Petitioner's legal services on an hom-ly basis and lbr reimbursement of copying costs and notwithstanding tim HB 49694vl 4450 01 submissiol~ ofmonthl.v invoices to tile Plaintiff. Plaintiff has thilcd to pay Pctiticmcr lbr trax IL'es and costs incurred since approximalely April of 2002. 6. 'lhe continued representation of Plaintiff without payment of fl~ese litigation costs, including legal services and expenses has resulted in and will further result in an unreasonable financial burden on Petitioner, and good cause exists thereibre under Rule 1.16(c)(5) of the Pennsylvania Rules of Professional Conduct for Petitiouer's withdrawal. 7. Plaintiff was notified in writing on numerous occasions that the decision nol to pursue the action in accordance witl~ lhe engagement agreement was g~ounds for Petitioner's withdrawal. 8. On February 19, 2004, Plaintiff was notified in writing that Petitioner was providing Plainliff 30 clays to substitute counsel if Plaintiff wished ~o continne to pursue this action. Plaintiffwas filrther notified that at the expiration ofthirB, (30) days, Petitioner would withdraw as counsel. 9. Again, on February 24, 2004. Plaintiff was notified in writing lhat Petitioner would withdraw as counsel within 30 days. 10. Plaiutiffhas determined not pursue this lax~.suit in accorda~ce with the engagement agreement entered into with Powell Trachtman. 1 ~. Plaintiff has ~5iled and refused ~o cure the albrementioned deficiencies. 12. Effective December 31, 2003, C. Grainger Bowman. Esq. resigned fi-om Powell, Trachtman, Logan, Carrie & Lombardo. P.C. However, he did not withdraw his appearance fi-om this case. At all times relevant hereto, Plaintiffremained a client of the firm Powell, Trachtman, l.ogan, Carrie & Lombardo, P.C. and Kelly H. Decker, Esq. remained counsel for Plaintifl~ HB 49694vl 4450-01 l x I certif}' lhat counsel lbr [)eFcndants. James (;lippinger. concurs in this motion provided that Hutton & Riggs, Dm. obtain ~h'ep]acemenC' counsel of rccord within 45 days of the Court's order so that the case may timely proceed. WHEIKE'FORE, C. Grain,get Bow]nan. Esq. Kelly [t. Decker, Esq. and Powell, Trachtman, Logan~ Carrie & Lombardo, P.C. respectfully request that this motion to withdraw' as counsel be granted. Respectfully sub~nitted, POWELL, TRACHTMAN. LOGAN, CA~E & LOMBARDO. P.C. - ~ ,? , ~, Kelly tf. Decider I.D. #84886 114 N. Second Streel I tarrisburg, PA 1710 I (717) 238-9300 Date: April 5. 2004 HB49694v1 4450 01 CERTIFICATE OF SERVICE AND NOW, on April 5, 2004, t hereby certify that I have served a true and correct copy of the within Motion of Counsel, Kelly H. Decker, Esq. and the Law Firm of Powell, Trachtman, Logan, Carrie & Lombardo, P.C. to Withdraw as Counsel for Plaintiff upon the following person(s) by regular first class United States mail, postage prepaid. James R. Clippinger, Esq. Caldwell & Kearns 3631 N. Front Street Ha~-isburg, PA 17l 10 Kelly l-l. l?(ec}~er HB:47625¥1 4450 01 Exhibit B HUTTON & R1GGS, INC., Plaintiff JAY R. REYNOLDS, INC., and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants 1N THE COURT OF COMMON PLEAS OF CU/vlBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-0985 CIVIL TERM ORDER OF COURT AND NOW, this 12~h day of April, 2004, upon consideration of the Motion of Counsel Kelly H. Decker, Esq., and the Law Firm of Powell, Trachtman, Logan, Carrie & Lombardo, P.C. To Withdraw as Counsel for Plaintiff, a Rule is hereby issued upon Plaintiff and Defendants to show cause why the relief requested should not be ~anted. RULE RETURNABLE within 10 days of service. C. Grainger Bowman, Esq. Kelly H. Decker, Esq. Powell, Trachtman, Logan, Carrie & Lombardo, P.C. 114 N. Second Street Harrisburg, PA 17101 Attorneys for Plaintiff 363mes R. Clippinger, Esq. ! N. Front Street Harrisburg, PA 17110 Attorney for Defendants BY THE COURT, Hutton & R/ggs, Inc. 94 Hidlay Church Road Bloomsburg, PA 17815 Plaintiff :rc Exhibit C Phone (7/7}218-9300 Kelly H Decke~.Esq I D. #84886 Altomeys fm Plaintiff HUTTON & riggs, IN(: HUTTON & RIGGS, 1NC., Plaintiff. JAY R. REYNOLDS, INC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA JURY TRIAL DEMANDED CIVIL ACTION 03-985-Civil MOTION TO MAKE RULE ABSOEUTL_r Petitioners Kelly H. Decker, Esq. and thc law finn of Powell, Trachtman, Logan, Carrie, & Lombardo, P C., hereby file this motion to make rule absolute pursuant to Rule 206.7 and in support of which states as follows: I. On April 5, 2004, the Petitioner filed a Motion of Counsel Kelly H. Decker, Esq. and the law finn ofPowell, Trachtman, Logan, Carrie & Lombardo, P.C. to Withdraw as Counsel for Plaintiff Hutton & Riggs, Inc. 2. On April 12, 2004, the Court issued a Rule to Show Cause, directing that any answer to the motion be filed within ten days of the date entered. A copy of the Motion and Rule to Show Cause are attached hereto as Exhibit A. 3. A copy of the Coral's Order was served upon Counsel for Defendant and upon PlaintiffHutton & Riggs, Inc. 4. All answer or other responsive pleading to tile Motion was due on or before April 22,2004. HB:50254v 1 4450-01 5. As of this date, uo answer or other respousive pleading has been filed in response to the Motion. 6. Pursuant to Pa. RC.P. 206.7, if no answer has been timely filed, all averments of fact in the motion may be deemed admitted for the purposes of this subdivision and the conn shall enter an appropriate order. WHEREFORE, Petitioners Kelly H. Decker, Esq. and Powell, Trachtman, Logan, Carrie & Lombardo, P.C. respectfully requests that the Court grant Petitioner's Motion to Withdraw as Counsel for PlaintiffHutton & Riggs, Inc. and grant such other relief as this Court deems just and appropriate. Date: April 26, 2004 By: POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. Kelly tt. Decl4er, Esq. I.D. #84886 114 Ninth Second St. Harrisburg, PA 17101 (7t 7) 2380300 A ttorn©'for Plcmmjfl HB:50254vl 4450 01 HUTTON & RIGGS, [NC, Plaintiff. JAY R. REYNOLDS, [NC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY. PENNSYLVANIA .IURY TRIAL DEMANDED CIVIL ACTION 03-985-Civil ORDER AND NOW, this ~__. day of 2004, upon consideration of the within Motion of Counsel Kelly } 1. Decker, Esq. and the Law Finn of Powell, Trachtman, Logan, Carrie & Lombardo, P.C. to Withdraw as Counsel For Plaintiffs and any response thereto, it is hereby ORDERED that the Motion to Wilhdraw is GRANTED. ,J. EXHIBIT Exhibit HUTTON & R1GGS, INC., IN THE COURT OF COMnMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION- LAW JAY R. REYNOLDS, INC., and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendants : NO, 03-0985 CIVIL TERM ORDER OF COURT AND NOW, this 5th day of May, 2004, upon consideration of the Motion To Make Rule Absolute filed by Kelly H. Decker, Esq., and the Law Firm of Powell, Trachtman, Logan, Carrie & Lombardo, P.C., the motion is granted and the Rule issued on April 12, 2004, is made absolute and Kelly H. Decker, Esq., and the Law Firm of Powell, Trachtman, Logan, Carrie & Lombardo, P.C., are permitted to withdraw as counsel for Plaintifl: BY THECOURT, C. Grainger Bowman, Esq. Kelly H. Decker, Esq. Powell, Trachtman, Logan, Carrle & Lombardo, P.C. 114 N. Second Street Harrisburg, PA 17101 Attorneys for Plaintiff Jarr~es R. Clippinger, Esq. 3/(,J31 N. Front Street ,,/'Harrisburg, PA 17 l 10 Attorney fbr Defendants Hutton & Riggs, Inc. 94 Hidlay Church Road Bloomsburg, PA 17815 Plaintiff :rc Exhibit E CALDWELL ~ KEARNS a PF~OFES~IONAL EORPO$~ATION ATTORNEYS AT LAW 3~31 NORTH FRONT STREET HARRISBURG, PENNSylVANIA 17II0-1533 May 11, 2004 VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED Hutton & Riggs, Inc. 94 Hidlay Church Road Bloomsburg, PA 17815 OF COUNSEL RICHARD L KEARN$ CARL g WASS the firm~caldwellkeams.com Re: Hutton & Riggs, Inc. v. Jay R. Reynolds, Inc., et al. Civil Action No. 03-0985 (Cumberland County) Dear Sir/Madam: As counsel for Jay R. Reynolds, Inc. and Fidelity & Deposit Company of Maryland in the above-referenced action, I am in receipt of Judge J. Wesley Oler, Jr.'s Order of May 5, 2004 permitting Kelly H. Decker, Esquire and the law firm ofPowell, Trachtman, Logan, Carrie & Lombardo, P.C. to withdraxv as counsel for Hutton & Riggs, Inc. I wish to pursue and complete formal discovery in this matter, and to that end 1 would ask that you advise me no later than forty-five (45) days from the Court's Order o£May 5, 2004 of substitute legal counsel. If 1 am not noti fled of substitute counsel within said period of time, 1 shall plan to petition the Cour~ to te~Tninate the action. I will await your response. Very truly yours, James R. Clippinger CALDWELL & KEARNS JRC:dlj cc: Jay R. Reynolds W. William Cookson, Esquire Kelly H. Decker, Esquire 03-247/72807 HUTTON & RIGGS, INC., Plaintiff JAY R. REYNOLDS, INC., and FIDELITY & DEPOSIT COMPANY OF: Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-985 CIVIL TERM ORDER OF COURT AND NOW, this 13th day of July, 2004, upon consideration of Defendants' Petition To Dismiss Plaintiff's Complaint, it is ordered that: 1. A Rule is issued upon Plaintiff to show cause why Defendants are not entitled to the relief requested; 2. Plaintiff shall file an answer to the petition witihin 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Monday, September 27, 2004, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. 6. Briefs shall be submitted at least seven days prior to argument. BY THE COURT, Hutton & Riggs, Inc. 94 Hidlay Church Road Bloomsburg, PA 17815 Plaintiff, pro se James R. Clippinger, Esq. 3631 North Front Street Harrisburg, PA 171 I0 Attorney for Defendants :re HUTTON & RIGGS, 1NC. Plaintiff VS. JAY R. REYNOLDS, INC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : JURY TRIAL DEMANDED CIVIL ACTION NO. 03-985 CIVIL AFFIDAVIT OF SERVICE PURSUANT TO pa_.~R.C.P. 237.1 COMMONWEALTH OF PENNSYLVANIA : ; SS2 cOUNTY OF DAUPHIN : AND NOW, this __.day of July, 2004, personally appeared before me a Notary Public in and for said County and State, JAMES R. CLIPPINGER, ESQUIRE, and files this Affidavit on behalf of Defendants, who does affirm that as attorney of record of Defendants, Jay R. Reynolds, Inc. and Fidelity & Deposit Company of Maryland, he did serve upon Plaintiff, Hutton & Riggs, Inc., the Order of Judge J. Wesley Oler, Jr., dated July 13, 2004, by mailing a true and correct copy of same by United States certified mail, return receipt requested at Harrisburg, Pennsylvania. Attached to this is Postal Form 3811 indicating acceptance by Hutton & Riggs at 94 Hidlay Church Road, Bloomsburg, PA 17815 on July 21, 2004. A copy of the cover correspondence with a copy of the certified mail receipt ~rm are all collectively attached hereto as Exhibit Jame~lippinger~re Sworn to and subscribed before me this __ day of July 2004. Notary Public My Commission Expires 76306 CALDWELL & KEARNS ATTORNEYS AT LAW 363I NORTH FRONT STREET HARRISBURG, PENNSYLVANIA 17110-1533 July 16, 2004 OF COUNSEL RICHARD I KEARNS CARL G WASS THOMAS D. CALOWELL' JR thefir mtJc~ldwellkeams.corn VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED Hutton & Riggs, Inc. 94 Hidlay Church Road Bloomsburg, PA 17815 Re: Hutton & Riggs, Inc. v. Jay R. Reynolds, Inc., et al. Civil Action No. 03-0985 (Cumberland County) Dear Sir/Madam: Please find enclosed herewith a true and correct copy of the Order of Judge J. Wesley Oler, Jr. of July 13, 2004 with a true and correct copy of the Petition for Dismissal &s referenced therein. Very truly yours, James R. Clippinger CALDWELL & KEARNS JRC:dlj cc: Jay R. Reynolds W. William Cookson, Esquire 7004 0550 0000 2622 2696 HUTTON & RIGGS, 1NC. Plaintiff VS. JAY R. REYNOLDS, INC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND Defendants : IN THE COUq[~T OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : : JURY TRIAL DEMANDED : CIVIL ACTION NO. 03-985 CIVIL ~MOTION TO MAKE RULE ABSOLUTE AND NOW, comes James R. Clippinger, Esquire, atto:mey for Defendants Jay R. Reynolds, Inc. and Fidelity & Deposit Company of Maryland, and moves your Honorable Court to make absolute the Order of Court issued by your Honorable Court on July 13, 2004, and in support thereof sets forth the following: 1. On July 8, 2004, said Defendants, Jay R. Reynolds, Inc. and Fidelity & Deposit Company of Maryland, filed a Petition to Dismiss Plaintiff's Complaint with prejudice for the reasons set forth therein. 2. On July 13, 2004, your Honorable Court issued an Order of Court in the form of a Rule issued upon the Plaintiff to show cause why the Defendants' Petition for Dismissal should not be granted, which Order of Court required that the Plaintiff file an answer to the Petition within twenty-one (2 I) days of the date of the Order, or July 13, 2004, a copy of which was sent to the last known address of the Plaintiff, Hutton & Riggs, Inc. al: 94 Hidlay Chumh Road, Bloomsburg, Pennsylvania 17815 by the Court as noted on the Order. A true and correct copy of said Order of Court is attached hereto and marked Exhibit "A". 3. In addition, the undersigned, by letter dated July 16, 2004, by certified mail, did additionally send a true and correct copy of the Order of Court of July 13, 2004 to said Plaintiff. A true and correct copy of the cover correspondence and copy of the certified receipt card indicating the receipt thereof by the said Plaintiff on July 21, 2004 is attached hereto as Exhibit 4. No action has been taken by the Plaintiff and no response has been filed to the Rule within twenty-one (21) days of the date of the Order or within twenty-one (21) days from the date of additional service of the Order by Defendants' counsel. 5. As no answer has been flied, all averments of fact in the Petition for Dismissal are deemed admitted pursuant to Pa.R.C.p. 206.7, and it is appropriate for your Honorable Court to enter an appropriate order. WHEREFORE, we respectfully pray your Honorable Court make absolute the Order of Court issued July 13, 2004 and the relief requested be granted and the action terminated with prejudice. 03~247/76932 Respectfully submitted, CALDWELL & KEARNS Attorney ~[.D. 3~o.~0515~ 3631 NO/th Front Street Harrisburg, PA 17110 (717) 232-7661 HUTTON & RIGGS, INC., Plaintiff JAY R. REYNOLDS, INC., and FIDELITY & DEPOSIT COMPANY OF Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-985 CIVIL TERM ORDER OF COURT AND NOW, this 13th day of July, 2004, upon consideration of Defendants' Petition To Dismiss Plaintiff's Complaint, it is ordered that: 1. A Rule is issued upon Plaintiff to show cause why Defendants are not entitled to the relief requested; 2. Plaintiff shall file an answer to the petition within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Monday, September 27, 2004, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlislb, Pennsylvania. 6. Briefs shall be submitted at least seven days prior to argument. BY THE COURT, Hutton & Riggs, Inc. 94 Hidlay Church Road Bloomsburg, PA 17815 Plaintiff, pro se ~/4J~(~mes R. Clippinger, Esq. J 3631 North Front Street / Harrisburg, PA 17110 Attorney for Defendants :rc CALDWELL ~ KEAIRNS ATTORNEYS AT LAW HARRISBURG, PENNSYLVANIA 171lO-1533 VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED Hutton & Riggs, Inc. 94 Hidlay Chnrch Road Bloomsburg, PA 17815 July 16, 2004 thefirm~caldWellkearns.com Re: lluttoa & Riggs, Inc. v. Jay R. Reynolds, Inc., ,et al. Civil Action No. 03-0985 (~'umberland Count),) Dear Sir/M'adam: Please find enclosed herewith a tree and con-ect copy of the Order of Judge J. Wesley Oler, Jr. of July 3 2004 ',vilh a tree and con-ect copy of the Petition for Dismissal tis referenced /hereto Very truly yours, James R. Clippinger JRC:dlj CALDWELL & KEARNS cc: Jay R. Reynolds 75907 W. William Cookson, Esquire CERTIFICATE OF SERVICE AND NOW th' t,'3 ~ .'~ , ~s/~ day of ~, 2004, I hereby certify that I have served a copy of the within document on the~3ollowing by de,positing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Hutton & Riggs, Inc. 94 Hidlay Church Road Bloomsburg, PA 17815 CALDWELL & KEARNS By ~ / HUTTON & RIGGS, 1NC. Plaintiff VS. JAY R. REYNOLDS, 1NC. and FIDELITY & DEPOSIT COMPANY OF MARYLAND Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : : JURY TRIAL DEMANDED : C1VIL ACTION NO. 03-985 CIVIL ORDER AND NOW, this t _T/.~ day of August 2004, the Rule to Show Cause issued by this Court on July 13, 2004 is MADE ABSOLUTE and Defendants' relief requested is granted and the above-captioned action is hereby terminated with prejudice. BY THE COURT: .~.~dde~Wesl~y ~ler,