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03-2000
P.C. HAINES WALL & CEILING CONTRACTORS, INC., Plaintiff v. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, and R.S. MOWERY & SONS, INC., Defendants co r ov NO. CIVIL ACTION NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other 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. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siquientes, 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 dernandas 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 aviso 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 ABOGADO IMMEDIATAMENTE. SI NO IENE BOGADO O SI NO TIENE EL DINERO SUFIClENTE DE PAGAR TAL SERVlClON, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFIClNA CUYA DIRECClON SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASlSTENClA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 Exhibit A T-H A M E R I C A N I N S T I T U T E 0 F A R C H I T E C T Job No. ~162 Phase No. 9251 AIA Document A401 Standard Form of Agreement Between ContraCtor and SubcontraCtOr 1987 EDITION THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSUL TAT ION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. This docu. ment has been approved and endorsed by the American Subcontractors Association and the Associated Specialty Contractors, Inc. AGREEMENT made as of the tventy-seventh Nineteen Hundred and Ninety-nine BETWEEN the Contractor: and the Subcontractor: day of December in the year of R. S. MOVERY & SONS~ INC. 625 Hamilton Street Carlisle, PA 17013 P. C. HAINES VALL & CEILING CONTRACTOR 132 West Broad Street Salunga, PA 17538 The Contractor has made a contract for construction dated The Owner: DEPARTMENT OF THE ARMY Baltimore District, Corps of Engineers Po O. Box 1715, Baltimore, MD 2120)-1715 For the following Project: PH: 717-Z63-545~ / FAX: 717-Z63-7749 PH: 717=898-q72) / FAX: 717-)92-0)50 September 24, 1999 with DUNHAM U.S. ARMY HEALTH CLINIC ADDITION Carlisle Barracks Carlisle, PA' Contract No. DACA31-99-C-O083 which Contact is hereinaRer re.fred to as the Prime Commct and which provides for the ~rnishing of labor, materiMs, equipment and services in connection with the construction of the Project. A copy of the Prime Contract, cons~t~g of the Agreement Between Owner andContmctor (~om which compensation amounts may be deleted) and the other Contact Documents enumerated therein has been made avaUable to the Subcontractor. The Architect for the Project is: EVING-COLE-CHERRY-BROTT~ INC. Federal Reserve Bank Building 100 North Sixth Street Philadelphia, PA 19106-1590 The Contractor and the Subcontractor agree assetforth below. Copyright 1915, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1972, 1978, ©1987 by the American Institute of Architects, 1735 New York Avenue, N.W., Washington, D.C. 20006. Reproduction of thc material herein or substantial quotation of its provisions without written permission of the AIA violates the copyright laws of the United States and will be subject to legal prosecution. AIA DOCUMENT A401 * CONTRACTOR-SUBCONTRACTOR AGREEMENT,) 'I%X.'ELFTH EDITION · AIA® , © 1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 A401-1987 I TERMS AND CONDITIONS OF AGREEMENT BETWEEN CONTRACTOR AND SUBCONTRACTOR ARTICLE I THE SUBCONTRACT DOCUMENTS 1.1. The Subcomract Documents consist of (1) this Agree- .merit; (2) the Prime Contract, consisting of the Agreement between the Owner and Contractor and the other Contract Documents enumerated therein, including Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Agreement between the Owner and Contractor and Modifi- cations issued subsequent to the execution of the Agreement between the Owner and Contractor, whether before or after the execution of this Agreement, and other Contract Docu- ments, if any, listed in the Owner-Contractor Agreement; O) other documents listed in Article 16 of this Agreement; and (4) Modifications to this Subcontract issued after execution of this Agreement. These form the Subcontract, and are as fully a part of the Subcontract as if attached to this Agreement or repeated herein. The Subcontract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations Or agreements, either written or oral. An enumeration of the Subcontract Documents, other than Modifications issued subsequent to the execution of this Agreement, appears in Article 16. 1.2 The Subcontractor shall be furnished copies of the Sub- contract Documents upon request, but the Contractor may charge the Subcontractor for the cost of reproduction. ARTICLE 2 MUTUAL RIGHTS AND RESPONSIBILITIES 2.1 The Contractor and Subcontractor shall be mutually bound by the terms of this Agreement and, to the extent that provisions of the Prime Contract apply to the Work of the Sub- contractor, the Contractor shall assume toward the Subcontrac- tor all obligations and responsibilities that the Owner, under the Prime Contract, assumes toward the Contractor, and the Subcontractor shall assume toward the Contractor aLi obliga- tions and responsibilities which the Contractor, under the Prime Contract, assumes toward the Owner and the Architect. The Contractor shall have the benefit of all rights, remedies and redress against the Subcontractor which the Owner, under the Prime Contract, has against the Contractor, and the Subcontrac- tor shall have the benefit of all rights, remedies and redress against the Contractor which the Contractor, under the Prime Contract, has against the Owner, insofar as applicable to this Subcontract. Where a provision of the Prime Contract is incon- sistent with a provision of this Agreement, this Agreement shall govern. 2.2 The Contractor may require the Subcontractor to enter into agreements with Sub-subcontractors performing portions of the Work of this Subcontract by which the Subcontractor and the Sub-subcontractor are mutually bound, to the extent of the Work to be performed by the Sub-subcontractor, assuming toward each other all obligations and responsibilities which the Contractor and Subcontractor assume toward each other and having the benefit of all rights, remedies and redress each .against the other which the Contractor and Subcontractor have by virtue of the provisions of this Agreement. ARTICLE 3 CONTRACTOR 3.1 SERVICES PROVIDED I~Y THE CONTRACTOR· 3.1.1 The Contractor shall cooperate with the Subcontractor in scheduling and performing the Contractor's Work to avoid conflicts or interference in thc Subcontractor's Work and shall expedite written responses to submittals made by the Subcon- tractor in accordance with Paragraph 4.1 and Article 5. As soon as practicable after execution of this Agreement, the Contractor shall provide the Subcontractor copies of the Contractor's con- struction schedule and schedule of submittals, together with such additional scheduling details as will enable the Subcontrac- tor' to plan and perform the Subcontractor's Work properly. The Subcontractor shall be notified promptly of subsequent changes in the construction and submittal schedules and addi- tional scheduling details. 3.1.2 The Contractor shall Provide suitable areas for storage of the Subcontractor's materials and equipment during the course of the Work. Additional costs to the Subcontractor resulting from relocation of such facilities at the direction of the Contrac- tor, except as previously agreed upon, shall be reimbursed by the Contractor. 3.1.3 Except as provided in Article 14, the Contractor's equip- ment will be available to the Subcontractor only at the Contrac- tor's discretion and on mutually satisfactory terms. 3.2 -COMMUNICATIONS 3.2.1 The Contractor shall promptly make available to the Subcontractor information which affects this Subcontract and which becomes available to the Contractor subsequent to execution of this Subcontract. 3.2.2 The Contractor shall not give instructions or orders directly to employees or workmen of the Subcontractor, except to persons designated as authorized representatives of the Sub- contractor. 3.2.3 The Contractor shall permit.the Subcontractor to request directly from the Architect information 'regarding the percent- ages of completion and the amount certified on account of Work done by the Subcontractor. 3.2.4 If hazardous substances of a type of which an employer is required by law to notify its employees are being used on the site by the Contractor, a subcontractor or anyone directly or indirectly employed by them (other than the Subcontractor), the Contractor shall, prior to harmful exposure of the Subcon- tractor's employees to such substance, give written notice of the chemical composition thereof to the Subcontractor in suffi- cient detail and time to permit the Subcontractor's compliance with such laws. 3.3 . CLAIMS BY THE CONTRACTOR 3.3.1 Liquidated damages for delay, if provided for in Para- graph 9.3 of this Agreement, shall be assessed against the Sub- contractor only to the extent caused by the Subcontractor, the Subcontractor's employees and agents, Sub-subcontractors, suppliers or any person or entity for whose acts the Subcon- AIA DOCUMENT A401 · CONTRACTOR.SUBCONTRACTOR AGREEMENT · TWELFYH EDITION · AIA® · © 1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 A401-1987 2 tractor may be liable, and in no case for delays or causes arising outside the scope of this Subcontract. 3.3.2 Except as may be indicated in this Agreement, the Con- tractor agrees that no claim for payment for services rendered or materials and equipment furnished by the Contractor to the Subcontractor shall be valid without prior notice to the Sub- contractor and unless written notice thereof is given by the Contractor to the Subcontractor not later than the tenth day of the calendar month following that in which the claim originated. 3.4 cONTRACTOR'S REMEDIES 3.4.1 If the Subcontractor defaults or neglects to carry out the Work in accordance with this .Agreement and fails within three working days after receipi of written notice from the Contrac- tor to commence and contMue correction of such default or neglect with diligence and promptness, the Contractor may, after three days following receipt by the Subcontractor of an additional written notice, and without prejudice to any other remedy the Contractor may have, make good such deficiencies and may deduct the cost thereof from the payments then or thereafter due the Subcontractor, provided, however, that if such action is based upon faulty workmanship or materials and equipment, the Architect shall first have determined that the workmanship or materials and equipment are not in accor- dance with requirements of the Prime Contract. ARTICLE 4 SUBCONTRACTOR 4.1 EXECUTION AND PROGRESS OF THE WORK 4.1.1 The Subcontractor shall cooperate with the Contractor in scheduling and performing the Subcontractor's Work to avoid conflict, delay in or interference' with the Work of the Contractor, other subcontractors or Owner's own forces. 4.1.2 The Subcontractor shall promptly submit Shop Draw- ings, Product Data, Samples and similar submittals required by the Subcontract Documents with reasonable promptness and · in such sequence as to cause no delay in the Work or in the activities of the Contractor or other subcontractors. 4.1.3 The Subcontractor.shall submit to the Contractor a schedule of values allocated to the various parts of the Work of this Subcontract, aggregating the Subcontract Sum, made out in such detail as the Contractor and Subcontractor may agree upon or as required by the owner, and supported by such evi- dence as the Contractor may direct. In applying for payment, the Subcontractor shall submit statements based Upon this Schedule. 4.1.4 The Subcontractor shall furnish to the Contractor periodic progress reports on the Work of this Subcontract as mutually agreed, including information on the status of mate- rials and equipment which may be in the course of preparation or manufacture. 4.1.5 The Subcontractor agrees-that the Architect will have the authority to reject Work which does not con.form to the Prime Contract. The Architect's decisions on matters relating tO aesthetic effect shall be final if consistent with the 'intent expressed in 'the Prime Contract. 4.1.6 The Subcontractor shall pay for materials, equipment and labor used in connection with the performance of this Sub- contract through the period covered by previous payments received from the Contractor, and shall furnish satisfactory evidence, when requested by the Contractor, to verify com- pliance with the above requirements. 4.1.7 The Subcontractor shall take necessary precautions to protect properly the Work of other subcontractors from damage caused by operatiop, s under this Subcontract. 4.1.8 The Subcontractor shall cooperate with the Contractor, other subcontractors and the Owner's own forces whose Work might interfere with the Subcontractor's WOrk. The Subcon- tractor shall participate in the preparation of coordinated draw- ings in areas of congestion, if required by the Prime Contract, specifically noting and advising the Contractor of potential con- filets between the Work of the Subcontractor and that bf the Contractor, other subcontractors or the Owner's own forces. 4.2 LAWS; PERMITS, FEES AND NOTICES 4.2.1 Thc Subcontractor shall give notices and comply with laws, ordinances, rules, regulations and orders of public author- ities bearing on performance of the Work of this Subcontract. The Subcontractor shall secure and pay for permits and govern- mental fees, licenses and inspections necessary for proper execution and completion of the Subcontractor's Work, the furnishing of which is requi?ed of the Contractor by the Prime Contract. ~ 4.2.2 The Subcontractor shall comply with Federal, state and local tax laws, social security acts, unemployment compensa- tion acts and workers' or workmefi's compensation acts insofar as applicable to the performance of this Subcontract. 4.3 SAFETY PRECAUTIONS AND PROCEDURES 4.3.1 The Subcontractor shall take reasonable safety precau- tions with respect to performance of this Subcontract, shall comply with safety measures initiated by the Contractor and with applicable laws, ordinances, rules, regulations and orders of public authorities for the safety of persons or property in accordance with the requirements of the Prime Contract. The Subcontractor shall report to the Contractor within three days an injury to an employee or agent of the Subcontractor which occurred at the site. 4.3,2 If hazardous substances of a type of which an employer is required by law to notify its employees are being used on the site by th~ Subcontractor, the Subcontractor's Sub- subcontractors or anyone directly or indirectly employed by them, the Subcontractor shall, prior tO harm .ful exposure of any employees on the site to such sul~stance, give written notice of the chemical composition thereof to the Contractor in suffi- cient detail:and time to permit compliance with such laws by the Contractor, other subcontractors ~md other employers on the site. 4.3.3 In the event the Subcontractor' encounters on the site material reasonably believed to be a~bestos or polychlorinated . biphenyl (PCB) which has not been rendered harmless, the Subcontractor shall immediately stop Work in the area affected and report the condition to the Contractor in writing. The Work in the affected area shall ?esume in the absence of asbestos or polychlorinated biphenyl (PCB), or when it has been rendered harmless, by written agreement of the Contrac- tor and Subcontractor, or in accordance with final determina- tion by the Architect on which arbitration has not been demanded, or by arbitration as provided in this Agreement. The Subcontractor shall not be required pursuant to Article 5 to perform without consent any Work relating to asbestos or polychlorinated biphenyl (PCB). AIA DOCUMENT A401 * CONTRACTOR-SUBCONTRACTOR AGREEMENT · TWELFTH EDITION" ArA® · © t9t~; 3 A401-1987 THE AMERICAN [NSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 4.3.4 To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Subcontractor, the Sub- contractor's Sub-subcontractors, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work in the af- fected area if in. fact the material is asbestos or polychlorina~ed biphenyl (PCB) and has not been rendered harmless, provided that such claJxn, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) in- eluding loss of use resulting therefrom, but only {o the extent caused in whole or in part by negligent acts or omissions of the Contractor, Architect, Owner, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indem- nified hereunder. Such obligation shall not be construed to negate,, abridge, or reduce other fights or obligations of indem- nity which would otherwise exist as to a party or person described in this Subparagraph 4.3.4. 4.4 CLEANING UP 4.4.1 The Subcontractor shall keep the premises and sur- rounding area free from accumulation of waste materials or rub- bish caused by .operations performed under this Subcontract. The Subcontractor shall not be held responsible for unclean conditions caused by other contractors or subcontractors. 4.5 WARRANTY 4.5.1 The Subcontractor warrants to the Owner, Architect and Contractor that materials and equipment furnished under this Subcontract will be of good quality and new unless otherwise required or permitted by the Subcontract Documents, that the Work of this Subcontract will be free from defects not inherent in the quality required or permitted, and that the Work will conform with the requirements of the Subcontract Documents. Work not conforming to these requirements, including substi- tutions not properly approved and authorized, may be consid- ered defective. The Subcontractor's warranty excludes remedy for damage or defect caused by abuse, modifications not ex- ecuted by the Subcontractor, improper or insufficient mainte- nance, improper operation, or normal wear and tear under nor- real usage. This warranty shall be in addition to and not in limitation of any other warranty or remedy required by law or by the Subcontract Documents. 4.6 INDEMNIFICATION 4.6.1 To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the Owner, Contractor, Architect, Architect's consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of the Subcontractor's Work under this Subcontract, provided that such claim, dam- age, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible prop- erty (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Subcontractor, the Subcon- tractor's Sub-subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not' be construed to negate, abddge, or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Paragraph 4.6. 4.6.2 In dairns against any person or entity idemnified under this Paragraph 4.6 by an employee of the Subcontractor, the Subcontractor's Sub-subcontractors, anyone directly" or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Paragraph 4.6 shall not be limited by a limitation on amount or type of damages, compensation o~' benefitS payable by or for the Subcontractor or the Subcontractor's Sub-subcontractors under workers' or workmen;s compensation acts, disability benefit acts or other employee benefit acts. 4.6.3 The obligations of the Subcontractor under this Paragraph 4.6 shall not extend to the liability of the Architect, the Architect's consultants, and agents and employees of anY of them arising out of (1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications, or (2) the giving Of or the failure to give direc- tions or instructions by the Architect, the Architect's con- sultants; and agents and employees of any'of them, provided such giving or failure to give is the primary cause of the injury or damage. 4.7 REMEDIES FOR NONPAYMENT ~,.?.1 Provided the Contractor has received payment Owner, [f the' Contractor does not pay thc Subcontractor through no fault of the Subcontractor, within seven days from the time payment should be made as provided in this Agree- ment, the Subcontractor may, without prejudice to other available remedies, upon seven additiohal days' written notice to the Contractor, stop .the Work 'of this Subcontract until pay- ment of the amount owing has been recei~;ed. The Subcontract Sum shall, by appropriate adjustment, be increased by the amount of the Subcontractor's reasonable costs of shutdown, delay and start-up. ARTICLE 5 CHANGES IN THE WORK 5.1 The Owner may make changes in the Work by issuLng Modifications to the Prime C. ontract. Upon receipt of such a Modification issued subsequent to the execution of the Subcon- tract Agreement, the Contractor shall promptly notify the Sub- contractor of the Modification. Unless otherwise directed by the. Contractor, the Subcontractor shall 'rlot thereafter order materials or perform Work which would be inconsistent with the changes made by the Modifications to the Prime Contract. 6.2 The Subcontractor may be ordered in writing by the Con- tractor, without invalidating this Subcontract, to make changes in the Work within the general scope of this Subcontract con- sisting of additions, deletions or other revisions, including those required by Modifications to the Prime Contract issued subsequent to the execution of this Agreement, the Subcontract Sum and the Subcontract Time being adjusted accordingly. The Subcontractor, prior to the commencement of such changed or revised Work,' shall submit promptly to the Contractor written copies of a claim for adjustment to the Subcontract Sum and Subcontract Time for such revised Work in a manner consis- tent with requirements of the Subcontract Documents. 6.3 The Subcontractor shall make claims promptly to the Con- tractor for additional cost, extensions of time and damages for delays or other causes in accordance with th~ Subcontract AIA DOCUMENT A401 · CONTRACTOR-SUBCONTRACTOR AGREEMENT · TWELFTH EDITION ,, AIA® · ©1987 from the THE AMERICAN INSTITUTE OF ARCHITECTS, 1755 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 A401-1987 4 Documents. A claim which will affect or become part ora claim which the Contractor is required to make under the Prime Con- tract within a speckqed time period or in a specified manner shall be made in sufficient time to permit the Contractor to satisfy the requirements of the Prime Contract. Such claims shall be received by the Contractor not less than two worldng days preceding the time by which the Contractor's claim must be made. 'Failure of the Subcontractor to make such a timely claim shall bind the Subcontractor to the sa. me consequences as those to which the Contractor is bound. ARTICLE 6 ARBITRATION 6.1 Any controversy or claim between the Contractor and the Subcontractor arising out of or related to this Subcontract, or the breach thereof, shall be settled by arbitration, which shall be conducted in the same manner and under the same pro- cedure as provided in the Prime Contract with respect to claims between the Owner and the Contractor, except that a decision by the Architect shall not be a condition precedent to arbitra- tion. If the Prime Contract does not provide for arbitration or falls to Specify the manner and procedure for arbitration, it shall be conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association cur- rently in effect unless the parties mutually agree otherwise. 6.2 Except by written consent of the person or entity sought to be joined, no arbitration arising out of or relating to the Sub- contract shall include, by consolidation or joinder Or in any other manner, any person o~- entity not 'a Party to the Agree- ment under which such arbitration arises, unless it is shown at the time the demand for arbitration is Fried that (1) such person or entity is substantially involved in a common question of fact or law, (2) the presence of Such person or entity is required if complete relief is to be accorded in the arbitration, (3) the inter- est or responsibility of such person or entity in the matter is not insubstantial, and (4) such person or entity is not the Architect, the Architect's employee, the Architect's consultant, or an employee or agent of any of them. This agreement to arbitrate and any other written agreement to arbitrate w!th an additional person or persons referred to herein shall be specifically en- forceable under applicable law in any court having jurisdiction thereof. 6.3 The Contractor shall give the Subcontractor prompt writ- ten notice of any demand received or made by the Contractor for arbitration if the dispute involves or relates to the Work, materials, equipment, rights or responsibilities of the Subcon- tractor. The Contractor shall consent to inclusion of the Sub- contractor in the arbitration proceeding whether by joinder, consolidation or otherwise, if the Subcontractor requests in writing to be included within ten days after receipt of the Con- tractor's notice; 6.4 The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law i~ any court having jurisdiction thereof. 6.S This Article 6 shall not be deemed a limitation of rights or remedies which the Subcontractor may have under Federal law, under state mechanics' lien laws, or under applicable labor or material payment bonds unless such rights or remedies are expressly waived by.the Subcontractor. ARTICLE 7 TERMINATION, SUSPENSION OR ASSIGNMENT OF THE SUBCONTRACT ..; 7.1 TERMINATION. BY THE SoBcoNTRACTOR 7.1.1 The Subcontractor may 'terminate the' Subcontract. for the same reasons and under the same circumstances and pro- cedures with respect to the Contractor as the Contractor may terminate with respect to th.e Owner under the Prime Contract, or for nonpayment of amounts due under this Subcontract for 60 days or longer..In the event of such termination by the Sub- contractor for any reason which is not the fault of.the Subcon- tractor', Sub-subcontractors or their agents or employees or other person~ performing portions of the Work under contract with the Subcontractor, the Subcontractor shall be entitled to recover from the Contractor payment for Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, including reasonable overhead, profit and damages. 7.2 TERMINATION BY THE CONTRACTOR ' 7.2.1 If the Subcontractor persistently or repeatedly fails or neglects to carry out the Work in accordance with the Subcon- tract Documents or otherwise to perform in accordance with this Agreement and fails within seve~days-after receipt of writ- ten notice to commence and continue correction of such default or neglect with diligence and promptness, the Contrac- tor may, after seven days following receipt by the Subcontrac- tor of an additional written notice and without prejudice to any - other remedy the Contractor may have, terminate the Subcon- tract and finish the Subcontractor's Work by whatever method the Contractor may deem expedient. If the unpaid balance of the Subcontract Sum exceeds the expense of fir~ishing the Sub- contractor's Work, such excess shall be paid to the Subcontrac- tor, but if such expense exceeds such unpaid balance, the Sub- contractor shall pay the difference to the Contractor. 7.3 ASSIGNMENT OF THE SUBCONTRACT 7.3.1 In the event of termination of the prime Contract by the Owner, the Contractor may assign this Subcontract to the Owner, with the Owner's agreement, Subject to the provisions of the Prime Contract and to the prior rights of the surety, if any, obligated under bonds relating'to the prim~ Contract. If the Work of the Prime Contract has been suspended for more than 30 days, the Subcontractor's compensation shall be equitably adjusted. 7.3.2 The Subcontractor shall not assign the Work of this Sub- contract without the written consent of the Contractor, nor subcontract the whole of this Subcontract without the written consent of the Contractor, nor further subcontract portions of this Subcontract without written notification to the Contractor when such notification is requested by the Contractor. AIA DOCUMENT A401 * CONTRACTOR-SUBCONTRACTOR AGREEMENT * TWELFTH EDITION * AIA® * © 198 / 5 A401-1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W.,.WASHINGTON, D.C. 20006 ARTICLE 8 THE WORK OF THIS SUBCONTRACT 8.1 The Subcontractor shall execute the following portion of the Work described in the Subcontract Documents, including all labor, materials, equipment, services and other items required to complete such portion of the Work, except to the extent specifically indicated in the Subcontract Documents to be the responsibility of others. The scope of Work for this Subcontract covers furnishing and installing steel studs, drywall, insulation in metal studs, gypsum sheathing, vapor barrier, lead shielding in drywall partitions, acoustical ceiling systems, and seismic protection for acoustical ceilings. EXCLUDED from this Subcontract is layout, demolition, dumpster and disposal Costs, grouting of hollow metal frames, fire sating, fire caulking, temporary partitions, temporary weather enclosures, temporary heat, and plaster patch. ..ARTICLE 9 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 9.1 The Work to be performed under this Subcontract shall' be commenced as directed by the General Co,ntractor and subject to authorized adjustments, this Work shall be performed in accordance with a schedule, established by the General Contractor and agreed to by the Subcontractor to permit substantial completion' of the total project not later than April 14, 2002. 9.2 This project has a liquidated damage clause of 8570 per day. In the event substantial completion is not achieved by April 14, 2002, and liquidated damages are imposed and if the Subcontractor materially contributed to the failure to achieve substantial completion by the required date, the Contractor may assess the Subcontractor a portion or the full amount of the liquidated damage sum. 9.3 Time is of the essence' of this Subcontract. 9.4 No extension of time will be valid without the Contractor's written consent after claim made by the Subcontractor in accordance with Paragraph 5.2. AIA DOCUMENT A401 · CONTRACTOR-SUBCONTRACTOR AGREEMENT · TWELFTH EDITION · AIA® · ~1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 A401-1987 6 ARTICLE 10 SUBCONTRACT SUM 10.1 The Contractor shall pay the Subcontractor in current funds for performance of the Subcontract the Subcontract Sum of FIVE HUNDRED NINETY-FOUR THOUSAND AND 00/100 Dollars($596~000.00 .......... -), subject to additions and deductions as provided in the Subcontract Documents. 10.2 The Subcontract Sum is based upon the following alternates, if any, which are described in the Subcontract Documents and have been accepted by the Owner and the Contractor as may be applicable to the Work of this Subcontract. q0.Z.1 All applicable taxes have been included in the Contract Sum. q0.2.2 As a result of your bid proposal and subsequent negotiations. 10.3 Unit prices, if any, are as foUows: NONE 11.1 ARTICLE 11 PROGRESS PAYMENTS Based upon apPlications for payment'submittedto the ContraCtor by thc Subcontractor, corresponding to AppUcations for Payment submitted by the Contractor to the Architect, and Certificates for Payment issued by the Mchitect, the Contractor shall make progress payments on account of the Subcontract Sum to the Subcontractor as provided below and elsewhere in the Subcontract Documents. 11.2 The period covered by each application for payment shall be one calendar month ending on the l~t day of the month.. 11.3 Provided an application for payment is received by the Contractor not later than the twenty-fifth (25th) day of a month, the Contractor shall include the Subcontractor's Work covered by that application in the next Application for Pay- ment which the Contractor is entitled to submit to the Architect. The Contractor shall pay the Subcontractor each progress payment ¢, CONTRACTOR-SUBCONTRACTOR AGREEMENT ' '1WELFTH EDITION ¢, AiAe ,) © 1987 /UA DOCUMENT A401 within three working days after the Contractor receives payment from the Owner. 11.4 If an application for payment is received by the Contractor after the application date fixed above, the Subcontractor's Work. covered by it shall be included by the Contractor in the next Application for Payment submitted to the Architect. " 11 .$ Each application for payment shall be based upon the most recent schedule of values submitted by the Subcontractor in accordance with the Subcontract Documents. The schedule of values shall allocate the entire Subcontract Sum among the various portions of the Subcontractor's Work and be prepared in such form and supported by such data to substantiate its accuracy as the Contractor may require. This schedule, unless objected to by the Contractor, shall be used as a basis for reviewing the Subcontractor's applications for payment. . 11.6 Applications for payment submitted by the Subcontractor shall indicate the percentage of completion of each portion of the Subcontractor's Work as of the end of the period covered by the application for payment. 1 ~ .? Subject to the provisions of the Subcontract Documents, the amount of each progress payment shall be computed as foLlov, is: 11 .?.1 Take that portion of the Subcontract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Subcontractor's Work by the share of the total Subcontract Sum allocated to that portion of the Subcontractor's Work in the schedule of values, less that percentage actually retained; if any, from payments to the Contractor on account of the Work of the Subcontractor. Pending f'mal determination of cost to the Contractor of changes in the Work which have been properly authorized by Construction Change Directive, amounts not in dispute may be included to the same extent provided in the Prime Contract, even though the Subcontract Sum has not yet been adjusted; 11.7.2 Add that portion of the Subcontract Sum properly allocable to materials and equipment delivered and suitably stored at the site by the Subcontractor for subsequent incorporation in the. Subcontractor's Work or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing, less the same percentage retainage required by the Prime Contract to be applied to such materials and equipment in the Contractor's Application for Payment; 11.?.3 Subtract the aggregate of previous payments made by the Contractor; and 11 .?.4 Subtract amounts, if any, calculated under Subparagraph 11.7.1 or 1 1.7.2 which are related to Work of the Subcontractor for which the Architect has withheld or nullified, in whole or in part, a Certificate of Payment for a i:ause which is the fault of the Subcontractor. .. 11.8 SUBSTANTIAL COMPLETION 11.8.1 When the Subcontractor's Work or a designated portion thereof is substantially complete and in accordance with the require- ments of the Prime Contract, the Contractor shall, upon application by the Subcontractor, make prompt application for payment for such Work. Within 30 days following issuance by the Architect of the Certificate for Payment covering such substantially completed Work, the Contractor shall, to the full extent allowed in the Prime Contract, make payment to the Subcontractor, deducting any por- tion of the funds for the Subcontractor's Work withheld in accordance with the Certificate to cover costs of items to be completed or corrected by the Subcontractor. Such payment to the Subcontractor shall be the entire unpaid balance of the Subcontract Sum ifa full release of retainage is allowed under the Prime Contract for the Subcontractor's Woi'k prior to the completion of the entire Project. If the Prime Contract does not allow for a full release of retalnage, then such payment shall be an amount which, when added to previous payments to the Subcontractor, will reduce the retainage on the Subcontractor's substantially completed Work to the same percentage of retainage as that on the Contractor's Work covered by the Certificate. ARTICLE 12 FINAL PAYMENT 12,1 Final payment, constituting the entire unpaid balance of the Subcontract Sum, shall be made by the Contracto~ to the Subcon- tractor when the Subcontractor;s Work is fully performed in accordance with the requirements of the Contract Documents, the' Ar- chitect has issued a Certificate for Payment covering the Subcontractor's completed Work and the Contractor has received payment from the Owner. If, for any cause which is not the fault of the Subcontractor, a Certificate for Payment is not issued or the Contractor does not receive timely payment or does not pay the Subcontractor within three working days after receipt of payment from the Owner, final payment to the Subcontractor shall be made upon demand. 12.1~l Final payment will not be due until a11 of the Subcontractor,s obligations regarding warranties, certifications,' as-built drawings, operating instructions, and punch list items are completed to the satisfaction of the Owner and Architect. 12.2 Before issuance of the final payment, the Subcontractor, if required, shall submit evidence satisfactory to the Contractor that all payrolls, bills for materials and equipment, and all known indebtedness connected with the Subcontractor's Work have been satisfied. AIA DOCUMENT A401 · CONTRACTOR-SUBCONTRACTOR AGREEMENT (, I wI:;LFTH EDITION · AIA® * © 1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 A401-1987 8 13.1 ARTICLE 13 INSURANCE AND BONDS The Subcontractor shall purchase and maintain insurance of the following types of coverage and limits of liability: See Attachment. "A" - :insurance Coverage Requirements. 13.2 Coverages, whether written on an.occurrence or claims-made basis, shall be maintained without interruption from date of commencement of the Subcontractor's Work until date of final payment and termination of any coverage required to be main- tained after fmai payment. 13.3 Certificates of insurance acceptable to the contractor shall be filed with the Contractor prior to commencement of the Sub- contractor's Work. These certificates arid the insurance policies required by this Article 13 shall contain a provision that coverages afforded under the policies will not be cancelled or allowed to expire until at least 30 days' prior written notice has been given to the Contractor. If any of the foregoing insurance coverages are required to remain in force after final' payment and are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the final application for payment as required in Article 12. If any information concerning reduction of coverage is not furnished by the insurer, it shall be furnished by the Subcontractor with reasonable promptness according to the Subcontractor's information and belief. 13.4 The Contractor shal~, furnish to 'the Subcontractor satisfactory evidence of insurance required of the Contractor under the Prime Contract. . . 13.$ Waivers of Subrogation. The Contractor and Subcontractor waive all rights against (1) each 6ther and any of their Subcontrac- tors, Sub-subcontractors, agents and employees, each of the other, and (2) the Owner, the Architeci, the Architect's consuitants~ separate contractors, and any of their subcontractors, sub-subcontractors, agents and employees for damages caL[sed by fire or other perils to the extent covered by property insurance provided under the Prime Contract or 'other property insurance applicable to the Work, except such rights as they may have to proceeds of such insurance held by the Owner as fiduciary. The Subcontractor shall require of the Subcontractor's Sub-subcontractors, agents and employees, by appropriate agreements, written where legally required for validity, similar waivers in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the persot~ or entity had an insurable interest in the property damaged. 13.6 The Contractor shall promptly, upon request of the Subcontractor, furnish a copy or permit a copy to be made of any bond covering payment of obligations arising under the Subcontract. 13.7 This Subcontract does not require Performance and/or Labor and I~aterial Payment Bonds. ARTICLE 14 - TEMPORARY. FACILITIES AND WORKING CONDITIONS 14.1 Unless otherwise provided in this Subcontract, the Contractor shall furnish and make available at no cost to the Subcontractor the following temporary facilities and 'services: Normal electric power, water, and toilet facilities will be provided to the subcontractor at no charge. Not withstanding the above, subcontractor will be required to provide and install temporary facilities or systems as delineated in their scope of work (Article 2 of this subcontract) or in the contract documents. Limited storage areas will be made available to the subcontractor as directed by the General Contractor. Subcontractor's employees shall park vehicles only at locations directed by the General Contractor. Security for stored materials, tools, and equipment will be the responsibility of the subcontractor. Unloading, material handling, and hoisting for work of this subcontract will be the responsibility of the subcontractor. The subcontractor will clean up after his own work, as well as dispose of any packaging materials or other rubbish which he has generated. All waste, rubbish, and unsuitable material shall be legally disposed, of off the site by the subcontractor. ~.2 Specific working conditions: See Pages 9a~ 9b~ and 9c of this Subcontract Agreement. AIA DOCUMENT A401 · CONTRACTOR-SUBCONTRACTOR AGREEMENT * 'I'WI[LFTH EDITION * AIA® * © 1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 A401-1987 ~ 14.2.1 14.2.2 14.2.3 14.2.4 14.2.5 14.2.6 14.2.7 14.2.8 14.2.9 14.2.10 14.2.11 14.2.12 14.2.13 14.2,14 14.2.15 14.2.16 ARTICLE 14.2- WORKING CONDITIONS This project is being administered by our Project Manager, Les Barno. Ail inquiries should be directed to Mr. Barno. Our Site Superintendent is Terry Strock. The job telephone number is not available at this time. Subcontractor shall comply With all requirements of the Right-To-Know Act and MUST supply a copy of their Written Hazard Communication Policy and MSDS information for all hazardous material to be used on THIS project. This data must be received by our Safety Director PRIOR to any work being performed on this job. Any fines and penalties impOsed upon al~d collected from the General Contractor which result from the failure of the subcontractor to comply with laws and regulations pertaining to the Right-To-Know Act, hazardous communications, and other similar regulations, shall be reimbursed by the subcontractor to the General Contractor and the General Contractor is authorized to unilaterally deduct such sums from this subcontract amount. Subcontractor shall be responsible to perform all work in a safe manner in compliance with OSHA Regulations and any special safety requirements of the Owner. Subcontractor shall adhere to a proper Assured Grounding Program. Any fines and penalties imposed upon and collected from the General Contractor which result from the failure of the subcontractor to comply with laws and regulations pertaining to OSHA or other similar regulations,, shall be reimbursed by the subcontractor to the General Contractor and the General Contractor is authorized to unilaterally deduct such sums from this subcontract amount. Subcontractor shall promptly forward submittals to the General Contractor for approval. * Shop Drawings - eight (8) prints; two (2) copies will be returned. * Catalog Cuts - eight (8) copies; two (2) copies will be returned. Subcontractor is required to prepare as-built drawings, maintenance manuals, operating instructions, and deliver warranties covering, his work. As-built drawings shall show any deviations from the contract documents and provide specific dimensional locations for hidden features which may require later access. The Owner will continue to utilize this facility and conduct their normal operations. Subcontractor shall cooperate with the Owner and General Contractor to minimize disruption to the Owner's operation. When requested to do so, the subcontractor shall have an authorized representative in attendance at coordination meetings to commit to schedu!ing requirements. Substitutions fOr specified products are only permitted when specifically requested and approved. Do not submit shop drawings or Catalog information for substitutions which have not been previously authorized. Subcontractor shall pro~ide products to be incorporated into the work of the project that are new, undamaged, and unused at the time of the installation, unless otherwise indicated in the Contract Documents. Subcontractor shall produce, upon request, evidence supporting the source of materials used in the work. The products provided under this Subcontract shall meet or exceed the quality specified in the Contract Documents. The burden of proof of quality for all products provided rests with the Subcontractor. The costs incurred for substantiating quality shall be borne by the Subcontractor. If the Owner accepts substituted materials of a lesser quality than specified, the Owner shall be entitled to a credit equal to the difference in cost of the products specified and the products provided. Subcontractor fully warrants and guarantees for the benefit of the Owner as purchaser the effectiveness, fitness for the purpose intended, quality and merchantability of any item provided and/or installed by such Subcontractor. This subcontractor shall be responsible for all cutting and patching necessary to accommodate the work of this subcontract. Subcontractor shall comply with, but not be limited to, the following: All applicable codes, regulations, and requirements of government bodies and utilities having jurisdiction or authority Anti-Pollution Requirements - Act 247 Underground Utilities - Act 287 Non-Discrimination Provisions regarding employment, PUrchasing of materials, and engaging the services of others Subcontractor sh'all not incorporate in the work nor permit to be brought to the site any materials or substances which are considered "hazardous materials" or "toxic materials" as defined or designated under any act, statute, code, regulation, or ordinance promulgated by any federal, state, or local body. Subcontractor shall dispose of any "hazardous materials", "toxic materials", or any other materials or substances requiring special disposal procedures in a proper legal manner. "Hazardous materials", "toxic materials", and "proper disposal" shall be defined in accordance with all acts, statutes, codes, regulations, or ordinances promulgated by any federal, state, or local body. Subcontractor shall comply with the Drug and Alcohol Policies of R. S. Mowery & Sons, Inc. and the Owner. Smoking is not permitted. Subcontractor shall not erect any signs on the property. Signage mounted on trailers will be permitted. 9a 14.2.17 14.2.18 14.2.19 14.2.20 14.2.21 14.2.22 14.2.23 14.2.24 14.2.25 14.2.26 14.2.27 14.2.28 Subcontractor shall obtain and pay for any permits, licenses, and certificates required by Law and/or any public authority for the proper execution and completion of its work. Subcontractor shall furnish proof of payment for all such permits, licenses, and certificates, or proof that no permits, licenses, or certificates are required. This provision does not apply to the Building Permit. Subcontractor shall give all notices and comply with all applicable laws, ordinances, regulations, rules, and orders of any public authority bearing on the performance of the work. If Subcontractor observes that any of. the Contract Documents are at variance therewith in any respect, it shall promptly notify the Contractor in writing. If Subcontractor performs any work knowing it to be contrary to such applicable laws, ordinances, regulations, rules, or orders, it assumes full responsibility therefore and shall bear all costs attributable thereto. General Contractor shall be advised of any Sub-subcontractors to be engaged by the Subcontractor. Sub-subcontractors are subject to approval by General Contractor, which shall not be unreasonably withheld. · " Subcontractor warrants and represents that the subcontractor shall not knowingly or negligently ~°mmunicate or disclose at any time to any person any information in connection with the work of this project, except as may be required to perform the work or by any applicable law. Subcontractor shall furnish, upon delivering signed subcontract, the name of one (1) individual who will act as Project Coordinator for the Subcontractor. Phone 'numbers are to be provided such that the Project Coordinator, or his authorized substitute, can be contacted at all times by the General Contractor. All provisions and regulations of the Federal and State Wages Acts shall be adhered to in the performance of this work. Subcontractor shall promptly correct all work rejected by the Owner, Architect, or Contractor as defective or as failing to conform to the Contract Documents, whether observed before or after substantial completion and whether or not fabricated, installed, or completed. All defective or non-conforming work shall be promptly removed from the site. Subcontractor shall bear all costs of correcting such rejected work. Should the Subcontractor fail to respond in an expedient manner, the Contractor may correct the work and deduct the cost from the Contract Sum of this Subcontract. If, within one year after the date of substantial completion and acceptance of all work performed under the Owner/Contractor Agreement or within such longer period of time as may be prescribed by Law or by the terms of any applicable special guarantee required by the Contract Documents, any of the work is found to be defective or not in accordance with the Contract Documents, Subcontractor shall correct it promptly after receipt of a written notice from the Contractor to do so. The Contractor shall give such notice promptly after discovery of the condition. Subcontractor shall bear the cost of making good all work destroyed or damaged by such removal or correction. If subcontractor receives any directive to perform additional work or modify the requirement of'~he work of this SUbcontract, the subcontractor shall waive the right to additional compensation if he does not advise the General Contractor of any additional cost prior to proceeding with the additional work or change. All claims for additional Costs, extensions of time or otherwise with respect to the work of this Subcontract shall be submitted to the Contractor in the manner provided in the Contract Documents for like claims by the Contractor upon the Owner. Subcontractor is without privity of Contract to the Owner and it agrees by signing this Subcontract that it neither acquires nor intends to acquire any rights against the Owner on a third party beneficiary theory or any others. -. ' ' Subcontractor represents and warrants that any systems, system components, equipment, or products furnished under this Subcontract shall, when used in accordance with manufacturers' documentation, be able to accurately process date and time data (including, but not limited to, calculating, comparing, and sequencing) from, into, and between the 20~ and 21't centuries, and the years 1999 and 2000, including leap-year calculations. For purposes of this clause, the. 21 't century begins January 1, 2000. In the event of any breach of this warranty, Subcontractor shall, at its sole cost and expense, restore the system, system component, equipment, or product to the same level of performance as warranted herein, or repair or replace the system, system component, equipment, or product with conforming product so as to minimize interruption, time being of the essence. In the event of any breach of warranty, Subcontractor will indemnify the General Contractor against any and all claims, demands, costs, expenses (including attorney's fees), and causes of action arising out of or in'any manner relating to the breach. Nothing in this warranty shall be construed to limit any rights or remedies the General Contractor may otherwise have under this Subcontract with respect to defects other than Year 2000 performance. ' Subcontractor shall provide materials for the Owner's later .use or as replacement material as required by the Contract Documents. Subcontractor shall deliver to the Contractor's Superintendent or Project Manager such materials in the required quantities. At the time of delivery, the Subcontractor shall provide a written description of each material provided and the quantities which shall be signed by the Contractor to acknowledge receipt. 9b 14.2.29 The following Contract Clauses are specifically included in this Subcontract as required by the Owner: 52.214-26 52.214-28 52.219-9 52.222~4 52.222-6 52.222-7 52.222-8 52.222-9 52.222-10 52.222-11 52.222-12 52.222-13 52.222-14 52.222-15 52.222-35 52.222-36 52.222-37 52.223-2 52.223-6 52.225-5 52.225-11 52.226-1 52.227-1 52.227-2 52.228-5 52.236-13 52.249-2 I 52.204-7000 52.209-7000 Audit and Records-Sealed Bidding (OCT 1997) Subcontractor Cost or Pricing Data-Modifications - Sealed Bidding (OCT 1997) Small Business Subcontracting Plan (JAN 1999)-Alternate I (JAN 1999) Contract Work Hours and Safety Standards Act - Overtime Compensation (JUL 1995) Davis-Bacon Act (FEB 1995) Withholding of Funds (FEB 1988) 52.236-7000 52.247-7023 52.247-7024 52.214-4028 . 52.222-4026 52.2224027 52.246-12 52.246-21 52.228-4001 Payrolls and Basic Records (FEB 1988) Apprentices and Trainees (FEB 1988) Compliance with Copeland Act Requirements (FEB 1988) Subcontracts (Labor Standards) (FEB 1988) Contract Termination-Debarment (FEB 1988) Compliance with Davis-Bacon and Related Act Regulations (FEB 1988) Disputes Concerning Labor Standards {FEB 1988) Certification of Eligibility (FEB 1988) Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era (APR 1998) Affirmative Action for Workers with Disabilities (JUN 1998) Employment Reports on Disabled Veterans and Veterans of the Vietnam Era (JAN 1999) Clean Air and Water (APR 1984) Drug-Free Workplace (JAN 1997) Buy American Act-Construction Materials (JUN 1997) Restrictions on Certain Foreign Purchases (AUG 1998) Utilization of Indian Organizations and !ndian-owned Economic Enterprise (MAY 1999) Authorization and Consent (JUL 1995) Notice and Assistance Regarding Patent and Copyright Infringement (AUG 1996) Insurance-Work on a Government Installation (JAN 1997) Accident Prevention (NOV 1991 ) Termination for Convenience of the Government (Fixed-Price) (SEP 1996)-Alternate I (SEP 199.6) · Disclosure of Information (DEC 1991) Acquisition from Subcontractors Subject to On-site Inspection under the Intermediate-range Nuclear Forces (INF) Treaty {NOV 1995) Modification Proposals-Price Breakdown (DEC 1991) Transportation of Supplies by Sea (NOV 1995) Notification of Transportation of Supplies by Sea {NOV 1995). Subcontractor Cost or Pricing Data-Modifications:Sealed Bidding (OCT 1997) Equal Opportunity (APR 1984) (Deviation) Affirmative Action Compliance Requirements for Construction Inspection of Construction (AUG 1996) Warranty of Construction (MAR 1994) Required Insurance 9c 15.3 ARTICLE 15 MISCELLANEOUS PROVISIONS 15.1 Where reference is made in this Agreement to a provision of the Gener-zl Conditions or afiother Subcontract Document, the reference refers to that provision as amended or supplemented by other provisions of the Subcontract Documents. 15,2 Pa);ments due ;md unp;fld under this Subcontract sb~ be'a~ interest from the date payment is due at such rate as the parties may agree upon in writing or, ~ the absence thereof, at the legal rate prey;filing from time to tLme at the place where the Project is located. If requested by the General Contractor, the subcontractor shall promptly furnish an all inclusive list of' sub- subcontractors employed by the subcontractor and all material suppliers of the subcontractor. Absent a legitimate dispute, subcontractor authorizes the General Contractor to issue joint checks to suppliers a.qd sub-subcontractors' when subcontractor's account for this project is overdue or subcontractor fails to promptly Pay sub-subcontractors or suppliers for work or materials for which the subcontractor has received payment from the'General Contractor. If the subcontractor is adjudged a bankrupt, or if he makes a general assignment for the benafit of his creditors, or if a receiver is appointed on account of his insolvency, the Contractor is authorized to make payment of sums properly due to all of subcontractor's sub-subcontractors and material suppliers. ARTICLE 16 ENUMERATION OF SUBCONTRACT DOCUMENTS 16.1 The Contract Documents, which constitute the entire Agreement between the Owner and Contractor, are listed in Article 1, and the documents which are applicable to this Subcontract, except fo~'Addenda and Modifications issued after execution of this Subcontract, are enumerated as follows: A listing of the contract documents is attached hereto. We have forwarded with this subcontract tho~e drawings and specificatio'ns wh ch we deem appropriate to this work. A full complement of the contract documents is available for your inspection at the site and at the General Contractor's home office. This Agreement entered into as of the day and year first written above. CON~0NS, INC. (Signature) . ~ Bruce G. R0sendale~ Executive Vice President (Printed name and title) &IA DOCUMENT A40'I · CONTRACTOR-SUBCONTRACTOR AGREEMENT * "r~//ELF'TH EDITION * AIA® · iD 1987 $~NTRACTOR:/~ C. HAINES I~ALL & CEILING CONTRACTOR. (Signature) (Printed name and title) THE AMERICAN iNSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 A401-1987 10 ATTACHMENT "A" INSURANCE COVERAGE REQUIREMENTS 13.1.1 Prior to starting work, the Subcontractor shall obtain the required insurance from a responsible insurer, and shall furnish satisfactory evidence to the Contractor that the Subcontractor has complied with the requirements of this Article 9. Similarly, the Contractor shall furnish to the Subcontractor satisfactory evidence of insurance required of the Contractor by the Contract Documents. 13.1.2 The Contractor and Subcontractor waive all rights against each other and against the Owner, the Architect, separate contractors and all other subcontractors for damages caused by fire or other perils tO the extent covered by property insurance provided under the General Conditions, except such rights as they may have to the proceeds of such insurance. While performing the Work of this subcontract, the Subcontractor shall maintain, at their own cost and expense, the following insurance in a company or companies licensed to do business in the Commonwealth of Pennsylvania. 1. Comorehensive or Commercial General Liability Insurance on an occurrence basis including coverage for direct operations, sublet work, demolition and wrecking, and contractual liability with limits not less than stated below: a. General Aggregate $1,000,000 b. .Products & Completed Operations Aggregate ~1,000,000 c. Personal &Advertising Injury Aggregate ~1,000,000 d. Each Occurrence $1,000,000 Automobile Liability Insurance including coverage for owned, non-owned,,and hired vehicles with limits not.less than stated below: ao Combined Bodily Injury & Property Damage $1,000,000 each occurrence Excess Liability Insurance Workers' Comoensation and Emolover's Liability Insurance. ~2,000,000 each occurrence/aggregate Worker's Compensation - Statutory Employer's Liability: Amounts & coverage as required by law 1 .) Each accident $100,000 2.) Disease-policy .limit $500,000 3.) Disease-each employee 9100,000 R. S. Mowery & Sons, Inc. shall be named as an additional insured on each of these policies except for Workers' Compensation. All insurance policies shall contain a provision that the coverages afforded thereunder shall not be cancelled, nor modified, until at least thirty (30) days prior written notice has been given to R. S. Mowery & Sons, Inc. A Certificate of Insurance shall be filed with R. S. Mowery & Sons, Inc. prior to the commencement of your work. ATTACHMENT "B" Project: Owner: Dunham U.S. Army Health Clinic Addition Carlisle Barracks, Carlisle, PA RSM Job No. 3162 Department of the Army Baltimore District, Corps of Eng. P. O. Box 1715 Baltimore, MD 21203-1715 Contractor: COntract Documents R. S. Mowery & Sons, Inc. 625 Hamilton Street Carlisle, PA 17013 Specifications prepared by the Corps of Engineers and Ewing-Cole-Cherry-Brott, Inc. - dated June 28, 1999. Amendments: I - dated 7/14/99 2 - dated 7/20/99 3 - dated 8/02/99 4 - dated 8/10/99 Drawings as listed below:' Plate Sheet Drawing Number Number Drawing Title Date I A0.1 Cover Sheet 3/22/99 2 A0.2 Construction Phase 1 . 3/22/99 3 A0.3 Construction Phase 2 3/22/99 4 A0.4 Construction Phase 3 3/22/99 5 A1.1 Existing Site Plan 3/22/99 6 A1.2 Demolition Plan 3/22/99 7 A1.3 Layout Plan 3/22/99 8 A1.4 Grading, Stormwater Management, Erosion & Sedimentation 3/22/99 Control and Utility Plan 9 A1.5 Landscape Plan I 3/22/99 10 A1.6 Site Details 3/22/99 11 A1.7 Site Details 3/22/99 12 A1.8 Site Details 3/22/99 13 A1.9 Site Details 3/22/99 14 A2.1 Demolition Plan 3/22/99 15 A2.2 Roof Plan 3/22/99 16 A2.3 Key Plan 3/22/99 17 A2.4 First Floor Plan Alteration Zone 3/22/99 Page I of 6 Number Number Drawing Title Date 48 FP-1.1 AutOmatic Sprinkler Plan 3/22/99 49 FP-1.2 Fire Alarm . 3/22/99 50 FP-1,3 Life Safety Plan 3/22/99 51 C1',1 Test Boring Plan 3/22/99 52 ci.2 Test B0ring Log 3/22/99 53 C1,3 Test Pit Log 3/22/99 54 C1,4 Test Pit Log 3/22/99 55 S0,1 Structural Index and General Notes 3/22/99 56 S2,1 Foundation and First Floor Framing Plan 3/22/99 57 S2.2 Roof Framing Plan 3/22/99 58 S2,3 Partial Framing Plans 3/22/99 59 S3,1 Sections and Details 3/22/99 60 S3,2 Sections and Details 3/22/99 61 , S4,1 Column SChedule and Details 3/22/99 62 S§,1 Typical Details " 3/22/99 63 M~I HVAC Index Sheet 3/22/99 64 M-2 Phasing Plan HVAC Phase I 3/22/99 65 M-3' Phasing Plan HVAC Phase II 3/22/99 66 M-4 Phasing Plan HVAC Phase III 3/22/99 67 M-§ HVAC Demolition First Floor Ductwork & Piping 3/22/99 68 M-6 HVAC Demolition First Floor Ductwork & Piping 3/22/99 69 M-7 HVAC Demolition Crawl Space Piping 3/22/99 70 M-8 HVAC Demolition Crawl Space Piping 3/22/99 71 M-9 HVAc Demolition Roof plan 3/22/99 72 M-10 HVAC Demolition Roof Plan 3/22/99 73 M-1 ~ HVAC New Work Floor Plan Ductwork 3/22/99 74 M-12 HVAC New Work Floor Plan - Piping 3/22/99 75 M-13 HVAC New Work Floor Plan Ductwork 3/22/99 76 M-14 HVAC New Work Floor Plan - Piping 3/22/99 77 M-15 HVAC New Work Roof Plan 3/22/99 Page 3 of 6 Plate I Sheet I Drawing Number Number DraWin~l Title Date 18 A2.5 First Floor Plan New Construction Plan · 3/22/99 19 A2.6 Reflected Ceiling Plan Alteration Plan 3/22/99 20 A2.7 Reflected Ceiling Plan New Construction Plan 3/22/99 21 A2.8 Equipment Plan - Quad A 3/22/99' 22 ' A2.9 Equipment Plan - Quad B 3/22/99 23 ~,2.10 Equipment. Plan - Quad C 3/22/99 24 A2.11 Equipment Plan - Quad D 3/22/99 25 A2.12 Equipment Plan - Quad E 3/22/99 26 A2.13 Equipment Plan ~ Quad F 3/22/99 27 A3.1 Building Elevations 3/22/99 28 A3.2 'Building Sections 3/22/99 29 A3.3 Wall Sections 3/22/99 30 A3.4 Wall Sections & Details 3/22/99 31 A3.5 Details 3/22/99 32 A3.6 Roof Details 3/22/99 33 A3.7 Plan Details 3/22/99 34 A3.8 Plan Details 3/22/99 35 A4.1 Typical PartitiOn Types and Details 3/22/99 36 A4.2 Door Types and Details 3/22/99 37 A4.3 Window/Louver Types and Details 3/22/99 38 A4.4 Equipment Elevations 3/22/99 39 A4.5 Cased Opening Elevations 3/22/99 40 A4.6 Signage Details 3/22/99 41 A4.7 Toilet Room Plans & Elevations 3/22/99 42 A4.8 Door & Frame Schedule 3/22/99 43 A4.9 Door & Frame Schedule 3/22/99 44 A4.10 Finish Schedule 1 & Details 3/22/99 45 A4.11 Fi.nish Schedule 2 3/22/99 46 A4.12 Interior Finishes Floor Plan 3/22/99 47 A4.13 Interior Elevations and Details 3/22/99 Page 2 of 6 Plate Sheet I I Drawing Number Number Drawing Title 'Date 108 P4,1 · Schedules and Details Plumbing 3/22/99 109 HPE. 1 Mechanical Equipment Coordination Schedule 3/22/99 110 HPE-2 Mechanical Equipment Coordination Schedule 3/22/99 111 E-1 Electrical and Communication Cover Sheet 3/22/99 112 EP-1 Phasing Plan - Electrical Phase I 3/22/99 113 EP-2 Phasing plan - Electrical Phase II 3/22/99 114 EP-3 Phasing Plan - Electrical Phase III 3/22/99 115 E-2 Single Line Diagram Demolition 3/22/99 116 E-3 Single Line Diagram - New Work 3/22/99 117 E-4 Single Line Diagram - New Work (cont,) 3/22/99 118 E-5 Floor Plan - Demolition Power and Communication 3/22/99 119 E-6 Floor Plan - Demolition Lighting 3/22/99 120 E-7 Site Plan Electrical Demolition 3/22/99 121 E-8 First Floor Plan (East) Power 3/22/99 122 , . E-9 First Floor Plan (West) Power.' . 3/22/99 123 . T-1 First Floor Plan (East) Communication 3/22/99 124 T-2 First Floor Plan (West) Communication :3/22/99 125 E-lO First Floor Plan (East) Lighting 3/22/99 126 E-11 First Floor Plan (West) Lighting 3/22/99 127 E-12 Roof Plan Power and Lighting Protection 3/22/99 128 E-13 Site Plan Power and Communication 3/22/99 129 E-14 Site Plan Lighting 3/22/99 130 E-15 Room Details Electrical and Communication 3/22/99 131 E-16 Lighting Fixture Schedule 3/22/99 '132 E-17 Lighting FixtUre Schedule (continued) 3/22/99 133 T-3 Diagrams - Communication 3/22/99 134 T-4 Diagrams - Communication (continued) 3/22/99 135 T-5 Diagram - Communications Public Address 8/17/98 136 T-6 Diagram - Communications Public Address 8/17/98 137 T-7 Diagram - Communications Public Address 8/17/95 Page 5 of '6 Plate I Sheet I Drawing Number Number Drawin~l Title Date 78 M-16 HVAC New Work - Mechanical RSM Plans & Sections 3/22/99 79 M-17 HVAC New Work - Mechanical Roof Plans & Sections 3/22/99 80 M-18 HVAC Piping Flow Diagrams Heating & Cooling Systems 3/22/99 81 - rv1-19 HVAC Air Flow Diagrams 3/22/99 82 M-20 HVAC Details " 3/22/99 83 M-21 HVAC Details 3/22/99 84 M-22 HVAC Details 3/22/99 85 M-23 HVAC Details 3/22/99 86 M-24 HVAC Control Diagrams 3/22/99 87 M-2§ HVAC Control Diagrams 3/22/99 88 M-26- HVAC Control Diagrams 3/22/99 89 M-27 HVAC Control Diagrams 3/22/99 90 M-28 HVAC Equipment Schedules 3/22/99 91 M-29 -IVAC Equipment Schedules 3/22/99 92 M-30 HVAC Equipment Schedules '. 3/22/99 93 M-31 HYAC Equipment Schedules 3/22/99 94 HPE-1 Mechanical Equipment Coordination Schedule 3/22/99 95 HPE-2 Vlechanical Equipment Coordination Schedule 3/22/99 96 P0,1 Plumbing Index Sheet 3/22/99 97 P0,2,1 Phasing Plan - Plumbing Phase I 3/22/99 98 P0.2,2 Phasing Plan - Plumbing Phase II 3/22/99 99 P0,2,3 Phasing Plan - Plumbing Phase III 3/22/99 100 P1,1,1 Floor Plan Demolition - Service Piping 3/22/99 101 P1,1,2 Floor Plan Demolition - Drainage '3/22/99 102 P2,1,1 Floor Plan - Alteration Zone Service Piping 3/22/99 103 P2,1,2 Floor Plan- Alteration Zone Drainage 3/22/99 104 P2,2,1 Floor Plan New Construction Zone Service Piping 3/22/99 105 P2,2,2 Floor Plan New Construction Zone Drainage 3/22/99 106 P3,1 Riser Diagrams Plumbing 3/22/99 107 P3,2 Riser Diagrams Plumbing 3/22/99 Page 4 of 6 Number Number Drawing Title Date · 138 T-8 Diagram - Communications Public Address 8/17/98 139 E-18 Panelboard Schedules 3/22/99 140 E-19 Panelboard Schedules (continued) 3/22/99 141 E-20 Standard Details 3/22/99 142 E-21 Standard Details 3/22/99 143 E-22 Grounding System Diagram " 3/22/99 .144 HPE-1 Mechanical Equipment Coordination Schedule 3/22/99 145 HPE-2 Mechanical Equipment Coordination Schedule 3/22/99 Page 6 of 6 VERIFICATION I, Paul Haines, hereby verify that I am the ~/Lt~/~//~ ~ ~ of P~ ~t ItO ~ ~.~"~¢and, as such, I am authorized to verify the averments of the foregoing document are tree and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. {}4904, relating to unsworn falsification to authorities. P.C. HAINES WALL & CEILING CONTRACTORS, INC., Plaintiff Mo TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, and R.S. MOWERY & SONS, INC., Defendants · IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION CERTIFICATE OF SERVICE AND NOW, this 30th day of April, 2003, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. mail, first class, certified, postage prepaid and addressed as follows: Travelers Casualty and Surety Company of America 1 Tower Square Hartford, CT 06183 THO~I~ O W~ ~IAMS, E~QUIRE SHERIFF'S RETURN - REGULAR CASE NO: 2003-02000 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND P C HAINES WALL & CEILING CONT VS TP~AVLERS CASUALTY AND SURETY C ROBERT BITNER , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon R S MOWERY & SONS INC the DEFENDANT , at 1000 BENT CREEK BLVD at 1506:00 HOURS, on the 29th day of April , 2003 MECHANICSBURG, PA 17050 WENDY BODEN, CORP SECRETARY, a true and attested copy of COMPLAINT & NOTICE by handing to ADULT IN CHARGE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 7.59 Affidavit .00 Surcharge 10.00 .00 35.59 Sworn and Subscribed to before me this ~ ~ day of / B6rothonotary / J Answers: R. Thomas Kline 04/30/2003 REAGER & ADLER By, ~m~epu~ty ~?~~ P. C. HAINES WALL & CEILING CONTRACTORS, INC., Plaintiff V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, : and R. S. MOWERY & SONS, INC., : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2000 · CIVIL ACTION PRELIMINARY OBJECTIONS OF DEFENDANTS R. S. MOWERY & SONS~ INC. AND TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA AND NOW, comes the Defendants, R. S. Mowery & Sons, Inc. ("Mowery") and Travelers Casualty and Surety Company of America ("Travelers"), (hereinafter collectively "the Defendants"), through its Counsel, McNees Wallace & Nurick LLC, and files the following preliminary objections to Plaintiff's Complaint: Agreement for Alternative Dispute Resolution 1. Counts II through IV Plaintiff's Complaint purport to bring claims against R. S. Mowery for, inter alia, breach of contract, alleged violation of the Pennsylvania Contractor and Subcontractor Payment Act, and unjust enrichment. 2. The contract between Mowery and P.C. Haines provides that all claims between Mowery and Haines be submitted to arbitration. 3. Pursuant to Rule 1028(a)(6) of the Pennsylvania Rules of Civil Procedure, an agreement for alternative dispute resolution may be raised through preliminary objections. 4. Accordingly, Plaintiff's Complaint against Mowery should be dismissed in its entirety because of a contractual agreement to submit claims to arbitration. Demurrer to Count III 5. Count III of Plaintiffs Complaint purports to bring a claim for violation of the Pennsylvania Contractor and Subcontractor Payment Act (73 P.S. § 501 et seq.). 6. The project as issue is not subject to the Act cited by Plaintiff in Count III. 7. Accordingly, Count III fails to state a claim against R. S. Mowery for which relief can be granted. 8. Count III of Plaintiffs Complaint otherwise fails to state a valid cause of action under the Contractor and Subcontractor Payment Act, and thus fails to state a cause of action against either R. S. Mowery or Travelers. 9. A claim under the Contractor and Subcontractor Payment Act cannot be brought against a surety, and thus, to the extent Plaintiff purports to bring a claim in Count III against Travelers, Count III fails to state a claim against Travelers for which relief can be granted. Demurrer to Count IV 10. Count IV of Plaintiffs Complaint purports to bring a claim for unjust enrichment against R. S. Mowery and Sons. 11. Plaintiffs Complaint avers the existence of a written contract, and thus any claims for unjust enrichment are barred. 12. Accordingly, Plaintiff's claim against R. S. Mowery for unjust enrichment fails to state a cause of action for which relief can be granted. WHEREFORE, Defendants R. S. Mowery and Travelers respectfully request this Honorable Court grant their preliminary objections to Plaintiff's Complaint. Date: May 16, 2003 Respectfully submitted, McNEES WALLACE & NURICK LLC Attorney I.D. No. 47245 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a true and correct copy of the foregoing document was served by U.S. first-class mail, upon the following: Thomas O. Williams, Esquire REAGER & ADLER, P. C. 2331 Market Street Camp Hill, PA 17011 J~mes W. I~utz ' Date: May 16, 2003 P.C. HAINES WALL & CEILING CONTRACTORS, INC., Plaintiff v. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, and R.S. MOWERY & SONS, INC., Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 03-2000 : : CIVIL ACTION NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money clafl~aed 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. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 NOTIClA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siquientes, 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 pot 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 aviso 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 ABOGADO IMMEDIATAMENTE. SI NO IENE BOGADO O SI NO TIENE EL DINERO SUFIClENTE DE PAGAR TAL SERVIClON, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFIClNA CUYA DIRECClON SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENClA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 P.C. HAINES WALL & CEILING CONTRACTORS, INC., Plaintiff V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, and R.S. MOWERY & SONS, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2000 CIVIL ACTION AMENDED COMPLAINT 1. The Plaintiff is P.C. Haines Wall & Ceiling Contractors, Inc. (hereinafter "P.C. Haines"), a corporation incorporated and doing business under the laws of the Commonwealth of Pennsylvania with its principal place of business located 132 West Broad Street, Salunga, Pennsylvania 17538-1108. 2. Defendant, Travelers Casualty and Surety Company of America (hereinafter "Travelers") is a corporation believed and therefore averred to be incorporated and doing business under the laws of the State of Connecticut with its principal place of business located at 1 Tower Square, Hartford, Connecticut 06183. 3. Defendant, R.S. Mowery & Sons, Inc. (hereinafter "Mowery") is a corporation incorporated and doing business under the laws of the Commomvealth of Pennsylvania with its principal place of business located at 1000 Bent Creek Boulevard, Mechanicsburg, Pennsylvania 17050. COUNT I P.C. Haines Wall & Ceiling Contraetors~ Ine.~ v. Travelers Casual ,ty and Surety Company of America 4. Defendant Travelers is in the business of, among other things, providing payment bonds to contractors on public works contracts in Pennsylvania where such payment bonds are required. 5. P.C. Haines brings this action pursuant to, and in compliance with, the Public Works Contractors Bond Law of 1967, 8 P.S. 191, et seq. 6. On or about January 25, 2000, P.C. Haines entered into a written contract with Mowery to perform work and to provide labor and materials for, among other things, drywall, plaster and studding work at the project known as U.S. Army Health Clinic Addition, Carlisle Barracks, Carlisle, Cumberland County, Pennsylvania (hereinafter the "Project"). A true and correct copy of the aforesaid contract is attached hereto as Exhibit "A". 7. The contract between P.C. Haines and Mowery was in the amount of $594,000.00. The contract amount was later revised by signed written approved change orders for extra work in the amount of $3,152.92 plus additional extra work as ordered by Mowery which was performed by P.C. Haines and accepted by Mowery in the amount of $62,310.01, resulting in a revised contract amount in the amount of $659,462.93. 8. As a condition of being awarded the contract, Mowery was required to provide a payment bond to ensure that all subcontractors and material suppliers performing work on or supplying materials to the Project would be paid in full. 9. Mowery provided a payment bond issued by Reliance Insurance Company, Bond No. B2803411. 10. Effective October 3, 2001, Travelers replaced Reliance Insurance Company as the surety on the above referenced bond. A tree and correct copy of the aforesaid payment bond as well as the surety bond endorsement of Travelers is attached hereto as Exhibit "B". 11. In the event of Mowery's failure to pay its subcontractors and/or material suppliers, Travelers, by virtue of the aforesaid payment bond issued on behalf of Mowery on the Project, agreed to be liable for all such costs to the extent of the amount of the bond. 2 12. P.C. Haines, as a subcontractor on the Project, wa~s a third party beneficiary of the surety bond provided by Mowery on the Project. 13. P.C. Haines completed all of its work under the base contract and approved extras which work was valued at $659,462.93. 14. To date, Mowery has paid P.C. Haines the total amount of $566,302.93 leaving a principal amount due and owing P.C. Haines of $93,160.00. 15. Despite demand by P.C. Haines, Mowery has failed and refused to pay P.C. Haines the principal balance due. 16. P.C. Haines has complied with all notice obligations required by law and by the terms of the payment bond. Less than a year has passed from the: date on which P.C. Haines performed the last of its work. 17. All conditions precedent for the bringing of this action have occurred and/or have been performed. WHEREFORE, Plaintiff, P.C. Haines Wall & Ceiling Contractors, Inc., respectfully request this Honorable Court to enter judgment in its favor and against Defendant, Travelers Casualty and Surety Company of America in the amount of $93,160.00, plus cost and interest. COUNT II - BREACH OF CONTRACT P.C. Haines Wall & Ceiling Contractors~ Inc. v. R.S. MoweD' & Sons~ Inc. 18. P.C. Haines incorporates herein by reference the averments of paragraphs 1 through 17 above as if set forth fully herein. 19. P.C. Haines performed work as a subcontractor to Mowery and submitted its applications for payment in the total amount of $597,152.92 for work performed under the base contract and signed written change orders. 3 20. Despite ordering P.C. Haines to perform additional work and accepting the additional work, Mowery has wrongfully denied P.C. Haines fi'oxn submitting applications for payment for the additional work and wrongfully has refused to sign written change orders for the work which work is valued at $62,610.01. 21. The revised contract amount between P.C. Haines and Mowery including the extras ordered and accepted by Mowery. 22. P.C. Haines performed all work and provided the labor and materials in accordance with the contract and extra work orders, in accordance with the contract documents and in a good and workmanlike manner. 23. P.C. Haines submitted applications for payment irt keeping with the contract documents and the orders and directives from Mowery. 24. To date, Mowery has paid the total amount of $56.6,302.93 leaving a principal balance due and owing in the amount of $93,160.00. 25. Mowery's refusal to approve change orders for all[ extra work it ordered and accepted constitutes a breach of contract. 26. Mowery's failure and refusal to pay P.C. Haines in full for all work performed and accepted constitutes a breach of contract. 27. As a result of Mowery's breach of contract, P.C. Haines has suffered damages in the principal amount of $93,160.00. 4 WHEREFORE, Plaintiff, P.C. Haines Wall & Ceiling Contractors, Inc., respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, R.S. Mowery & Sons, Inc., in the amount of $93,160.00, plus costs and interest. COUNT III - IN THE ALTERNATIVE: UNJUST ENRICHMENT P.C. Haines Wall & Ceiling Contractors~ Inc. v. R.S. Mower~? & Sons~ Inc. 28. Plaintiff incorporates herein by reference the averments of paragraphs 1 through 27 above as if set forth fully. 29. The value of the labor and materials provided by P.C. Haines under the orders of Mowery and as directed by Mowery for which Mowery has not yet paid P.C. Haines which work was outside the scope of P.C. Haines' Contract work is $62,310.01. 30. The prices charged by P.C. Haines for the labor and materials are fair and reasonable; they are the prices normally charged by P.C. Haines for such work, and they are the prices Mowery agreed to pay. 31. The extra labor and material provided by P.C. Haines were incorporated into the Project and it is believed and therefore averred that Mowery has received payment from the Owner for the extra work performed by P.C. Haines. 32. As a result of P.C. Haines' extra labor and materials, Mowery has been unjustly enriched in the amount of $62,310.01. 33. It would be unjust to permit Mowery to retain the benefits of P.C. Haines' labor and material without paying for same. 34. Injustice can only be avoided by enforcement of the agreement between P.C. Haines and Mowery. 5 WHEREFORE, Plaintiff, P.C. Haines Wall & Ceiling Contractors, Inc., respectfully requests this Honorable Court to enter judgment in its favor and against Defendant R.S. Mowery & Sons, Inc. under Count III in the amount of $62,310.01, plus costs and interest and such other further relief that this Court deems necessary and proper. Attorney I.D. No. 16267 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, iDA 17011-464 Telephone: (717) 763-1383 Attorneys for Plaintiff 6 T H £ A M E R I C A N I N S T I T U T E 0 E ARCHITECT I Job No. ~1~2 [ I Phase No. 92~I AIA Document A401 Standard Form of Agreement Between Contractor and Subcontractor 1987 EDITION THIS DOCUMENT HAS IMPORTANT LEGAL CONSEOQUENCES; CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. This document has been approved and endorsed by the American Subcontractors Association and the Associated Specialty Contractors, Inc. AGREEMENT made as of the twenty-seventh Nineteen Hundred and Ninety-nine day of December in the year of BETWEEN the Contractor: R. S. HOWERY & SONS, INC. 625 Hamilton Street Carlisle, PA 17013 FAX: 717-2~3-77~9 and the Subcontractor: P. C. HAINES WALL & CEILING CONTRACTOR 132 ~est Broad Street Selunga, PA 17538 The Contractor has made a contract for construction dated The Owner: DEPARTMENT OF THE ARMY Baltimore District, Corps of Engineers P. O. Box 1715, Baltimore, MD 211703-1713 PH: 717-898-1723 / FAX: 717-392-0350 September 2~, 1999 with For the following Project: DUNHAM U.S. ARMY HEALTH CLINIC ADOITION Carlisle Barracks Carlisle, PA Contraot Ho. DACA31-99-C-O083 which Contract is hereinafter referred to as the Prime Contract and which provides for the f~rnishing of labor, materials, equipment and services in connection with the construction of the Project. A copy of the Prinne Contract, consisting of the Agreement Between Owner and Contractor (from which compensation amounts may Be deIeted) and the other Contract Documents enumerated therein has been made available to the Subcontractor. The Architect for the Project is: £WIH$-C0LE-CHERRY-0N011, IHC. Federal Reserve Bank Building 100 Horth Sixth Street Philadelphia~ PA 19106-1590 The Contractor and the Subcontractor agree as set forth be:ow. Copyright 1915, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1972, 1978. ©1987 by thc American Institute of Architects, 1735 New York Avenue, N.W. Washington, D.C, 20006. Reproduction Of the material herein or substantial quotation of its provisions without written permission of the AIA violates the copyright laws of the United States and will be subject to Iegal prosecution. THE AMERICAN INSTITUTE OF ARCHITIiCTS. 1735 NEW YORK AVENL'E. NW. WASHINGTON, DC. 20006 A401-1987 1 TERMS AND CONDITIONS OF AGREEMENT BETWEEN CONTRACTOR AND SUBCONTRACTOR ARTICLE 1 THE SUBCONTRACT DOCUMENTS 1.1. The Subcontract Documents consist of (1) [his Agree- meat; (2) the Prime Contract, consisting of the Agreement between the Owner and Contractor and the other Contract Documents enumerated therein, including Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Agreement between the Owner and Contractor and Mod/fi- cations issued subsequent to the execution of the Agreement between the Owner and Contractor, whether before or after the execution of this Agreement, and other Contract Docu- ments, if any, listed in the Owner-Contractor Agreement; (3) other documents listed in Article 16 of this Agreement; and (4) Modifications to this Subcontract issued after execution of this Agreement. These form the Subcontract, and are as fully a part of the Subcontract as if attached to this Agreement or repeated herein. The Subcontract represents the entire and integrated agreement between the parties hereto and supersedes pdor negotiations, representations or agreements, either written or oral. An enumeration of the Subcontract Documents, other than Modifications issued subsequent to the execution of this Agreement, appears in Article 16. 1.2 The Subcontractor shall be furnished copies of the Sub- contract Documents upon request, but the Contractor may charge the Subcontractor for the cost of reproduction, ARTICLE 2 MUTUAL RIGHTS AND RESPONSIBILITIES 2.1 The Contractor and Subcontractor shall be mutually bound by the terms of this Agreement and, to the extent that provisions of the Prime Contract apply to the Work of the Sub- contractor, the Contractor shall assume toward the Subcontrac- tor all obligations and responsibilities that the Owner, under the Prime Contract, assumes toward the Contractor, and the Subcontractor shall assume toward the Contractor all obliga- tions and responsibilities which the Contractor, under the Prime Contract, assumes toward the Owner and the Architect. The Contractor shall have the benefit of all rights, remedies and redress against the Subcontractor which the Owner, under the Prime Contract, has against the Contractor, and the Subcontrac- tor shall have the benefit of all rights, remedies and redress against the Contractor which the Contractor, under the Prime Contract, has against the Owner, insofar as applicable to this Subcontract, Where a provision of the Prime Contract is incon- sistent with a provision of this Agreement, this Agreement shall govern. 2.2 The Contractor may require the Subcontractor to enter into agreements with Sub-subcontractors performing portions of the Work of this Subcontract by which the Subcontractor and the Sub-subcontractor are mutually- bound, to the extent of the Work to be performed by the Sub-subcontractor, assuming toward each other all obligations and responsibilities which the Contractor and Subcontractor assume toward each other and having the benefit of all rights, remedies and redress each against the other which the Contractor and Subcontractor have by virtue of the provisions of this Agreement. ARTICLE $ CONTRACTOR 3.1 SERVICES PROVIDED I:iy THE CONTRACTOR 3.1.1 The Contractor shall cooperate with the Subcontractor in scheduling and performing the Contractor's Work to avoid conflicts or interference in the Subcontractor's Work and shall expedite written responses to submittals made by the Subcon- tractor in accordance with Paragraph 4.1 and Article 5. As soon as practicable after execution of this Agreement, the Contractor shall provide the Subcontractor copies of the Contractor's con- struction schedule and schedule of submittals, together with such additional scheduling details as will enable the Subcontrac- tor to plan and perform the Subcontractor'$ Work properly, The Subcontractor shall be notified promptly of subsequent changes in the constroction and submittal schedules and addi- tional scheduling details. 3.1.2 The Contractor shaJl provide suitable areas for storage of the Subcontractor's materials and equipment during the course of the Work..Additional costs to the Subcontractor resulting from reIocation of such facilities at the direction of the Contrac- tor, except as previously agreed upon, shall be reimbursed by the Contractor. 3.1.3 Except as provided in Article 14, the Contractor's equip- ment will be available to the Subcontractor only at the Contrac- tor's discretion and on mutually satisfactory terms. 3.2 COMMUNICATIONS 3.2.1 The Contractor shall promptly make available to the Subcontractor information which affects this Subcontract and which becomes available to the Contractor subsequent to execution of this Subcontract. 3.2.2 The Contractor shall not give instructions or orders directly to employees or workmen of the Subcontractor, except to persons designated as authorized representatives of the Sub- contractor. 3.2.3 The Contractor shall permit.the Subcontractor to request directly from the Architect information regarding the percent- ages of completion and the amount certified on account of Work done by the Subcontractor. 3.2.4 If hazardous substances of a type of which an employer is required by law to notify its employees axe being used on the site by the Contractor, a subcontractor or anyone directly or indirectly employed by them (other than the Subcontractor), the Contractor shall, prior to harmful exposure of the Subcon- tractor's employees to such substance, give written notice of the chemical cnmposition thereof to the Subcontractor in suffi- cient detail and time to permit the $ubcontractor's compliance with such laws. 3.3 CLAIMS BY THE CONTRACTOR 3.3.1 Liquidated damages for delay, if provided for in Para- graph 9.3 of this Agreement, shall be assessed against the Sub- contractor only to the extent caused by the Subcontractor, the Subcontractor's employees and agents, Sub-subcontractors, suppliers or an:~, person or entity for whose acts the Subcon- THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, OC 20006 A401-1987 2 tractor may be liable, and in no case for delays or causes arising outside the scope of this Subcontract. 3.3.2 Except as may be indicated in this Agreement, the Con- tractor agrees that no claim for payment for services rendered or materials and equipment furnished by the Contractor to the Subcontractor shall be valid without prior notice to the SuN contractor and unless written notice thereof is given by the Contractor to the Subcontractor not later than the tenth day of the calendar month following that in which the claim originated. 3.4 CONTRACTOR'S REMEDIES 3.4.1 If the Subcontractor defaults or neglects to carry out the Work in accordance with this Agreement and fai/s within th~'~e working days after receipt of written notice from the Contrac- tor to commence and continue correction of such default or neglect with diligence and promptness, the Contractor may, after three days following receipt by the Subcontractor of an additional written notice, and without prejudice to any other remedy the Contractor may have, make good such deficiencies and may deduct the cost thereof from the payments then or thereafter due the Subcontractor, provided, however, that if such action is based upon faulty workmanship or materials and equipment, the Architect shall first have determined that the workmanship or materials and equipment are not in accor- dance with requirements of the Prime Contract. ARTICLE 4 SUBCONTRACTOR 4.1 EXECUTION AND PROGRESS OF THE WORK 4.1.1 The Subcontractor shall cooperate with the Contractor in scheduling and performing the Subcontractor's Work to avoid conflict, delay in or interference with the Work of the Contractor, other subcontractors or Owner's own forces, 4.1.2 The Subcontractor shall promptly submit Shop Draw- ings, Product Data, Samples and similar submittals required by the Subcontract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Contractor or other subcontractors. 4.1.3 The Subcontractor shall submit to the Contractor a schedule of values allocated to the various parts of the Work of this Subcontract, aggregating the Subcontract Sum, made out in such detail as the Contractor and Subcontractor may agree upon or as required by the Owner, and supported by such evi- dence as the Contractor may direct. In applying for payment, the Subcontractor shall submit statements based upon this schedule. 4.1.4 The Subcontractor shall furnish to the Contractor periodic progress reports on the Work of this Subcontract as mutually agreed, including information on the status of mate- rials and equipment which may be in the course of preparation or manufacture. 4.1.5 The Subcontractor agrees that the Architect will have the authority to reject Work which does not conform to the Prime Contract. The Architect's decisions on matters relating to aesthetic effect shall be final if consistent with the intent expressed in the Prime Contract, 4.1.6 The Subcontractor shall pay for materials, equipment and labor used in connection with the performance of this Sub- contract through the period covered by previous payments received from the Contractor, and shall furnish satisfactory evidence, when requested by the Contractor, to verify com- pliance with the above requirements. 4.1.7' The Subcontractor shall take necessary precautions to protect properly the Work of other subcontractors from damage caused by operations under this Subcontract. 4.1.8 The Subcontractor shall cooperate with the Contractor, other subcontractors and the Owner's own forces whose Work might interfere with the Subcontractor'$ Work. The Subcon- tractor shall participate in the preparation of coordinated draw- ings in areas of congestion, if required by the Prime Contract, specifically noting and advising the Contractor of potendal con- flicts between the Work of the Subcontractor and that Df the Contractor, other subcontractors or the Owner's own forces. 4.2 LAWS, PERMITS, FEES AND NOTICES 4.2.1 The Subcontractor shall give notices and comply with laws, ordinances, rules, regulations and orders of public author- ities bearing on performance of the Work of this Subcontract, The Subcontractor shall secure and pay for permits and govern- mental fees, licenses and inspections necessary for proper execution and completion of the Subcontractor's Work, the furnishing of which is required of the Contractor by the Prime Contract. 4.2.2 The Subcontractor shall comply with Federal, state and local tax laws, social security acts, unemployment compensa- tion acts and workers' or workmen's compensation acts insofar as appIicable to the performance of this Subcontract, 4.3 SAFETY PRECAUTIONS AND PROCEDURES 4.3.1 The Subcontractor shall take reasonable safety precau- tions with respect to performance of this Subcontract, shail comply with safety measures initiated by the Contractor and with applicable Iaws, ordinances, rules, regulations and orders of public authorities for the safety of persons or property in accordance with the requirements of the Prime Contract. The Subcontractor shall report to the Contractor within three days an injury to an employee or agent of the Subcontractor which occurred at the site. 4.3.2 If hazardous substances of a type of which an employer is required by law to notify its employees are being used on the site by th~ Subcontractor, the Subcontractor's Sub- subcontractors or anyone directly or indirectly employed by them, the Subcontractor shall, pripr to harmful exposure of any employees on the site to such substance, give written notice of the chemical composition thereof to the Contractor in suffi- cient detail and time to permit compliance with such laws by the Contractor, other subcontractors and other employers on the site. 4.3.3 In the event the Subcontractor encounters on the site material reasonably believed to be asbestos or polychlorinated biphenyl (PCB) which has not been rendered harmless, the Subcontractor shall immediately stop Work in the area affected and report the condition to the Contractor in writing. The Work in the affected area shall resume in the absence of asbestos or polychlodnated biphenyl (PCB), or when it has been rendered harmless, by written agreement of the Contrac- tor and Subcontractor, or in accordance with Final determina- tion by the Architect on which arbitration has not been demanded, or by arbitration as provided in this Agreement. The Subcontractor shall not be required pursuant to Article 5 to perform without consent any Work relating to asbestos or polychlorinated biphenyl (PCB). AIADOCUMENTA40I * CONTRACTOR-SUBCONTRACTORAGREEMENT* T'~ELFTH EDITION · AIA® * ©1987 3 A401-1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, NW., WASHINGTON, D.C. 2000(, 4.3.4 To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Subcontractor, the Sub- contractor's Sub-subcontractors, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work in the af- fected area if in fact the material is asbestos or polychlorinated biphenyl (PCB) and has not been rendered harmless, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) in- eluding loss of use resulting therefrom, but only {o the extent caused in whole or in part by negligent acts or omissions of the Contractor, Architect, Owner, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indem- nified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indem- nity which would otherwise exist as to a party or person described in this Subparagraph 4.3.4. 4.4 CLEANING UP 4.4.1 The Subcontractor shall keep the premises and sur- rounding area free from accumulation of waste materials or rub- bish caused by operations performed under this Subcontract. The Subcontractor shall not be held responsible for unclean conditions caused by other contractors or subcontractors. 4.5 WARRANTY 4.5.1 The Subcontractor warrants to the Owner, Architect and Contractor that materials and equipment furnished under this Subcontract will be of good quality and new unless otherwise required or permitted By the Subcontract Documents, that the Work of this Subcontract will be free from defects not inherent in the quality required or permitted, and that the Work will conform w'ith the requirements of the Subcontract Documents. Work not conforming to these requirements, including substi- tutions not properly approved and authorized, may be consid- ered defective. The Subcontractor's warranty excludes remedy for damage or defect caused by abuse, modifications not ex- ecuted by the Subcontractor, improper or insufficient mainte- nance, improper operation, or normal wear and tear under nor- mai usage. This warranty shall be in addition to and not in limitation of any other warranty or remedy required by law or by the Subcontract Documents. 4.6 INDEMNIFICATION 4.6.1 To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the Owner, Contractor, Architect, Architect's consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of the Subcontractor's Work under this Subcontract, provided that such claim, dam- age, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible prop- erty (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Subcontractor, the Subcon- tractor's Sub-subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation sh:all not be construed to negate, abridge, or otherwise reduce other rights or obligations of indemnity which would othez'wtse exist as to a party or person described in this Paragraph 4.6. 4.6.~) In claims against any person or entity idemnlfied under this Paragraph 4.6 by an employee of the Subcontractor, the Subcontractor's Sub-subcontractors, anyone directly or indirectly employ¢:d by them or anyone for whose acts they may be liable, the indemnification obligation under thb Paragraph 4.6 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Subcontractor or the Subcontractor's Sub-subcontractors under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. 4.6.3 The obligations of the Subcontractor under this Paragraph 4.6 shall not extend to the liability of the Architect, the Architect's consultants, and agents and employees of any of them arising out of (1) the preparation or approval of maps, drawings, opinion:;, reports, surveys, Change Orders, designs or specifications, or (2) the giving of or the failure to give direc- tions or instructions by the Architect, the Architect's con- sultants, and agents and employees of any of them, provided such giving or failure to give is the primary cause of the injury or damage. 4.7 REMEDIES FOR NONPAYMENT ~.7o'1 Provided the Contractor has received payment 0wner~ if the Contractor does not pay the Subcontractor through no ~.ult of the Subcontractor, within seven days from the time payment should be made as provided in this Agree- ment, the Subcontractor may, without prejudice to other available remedies, upon seven additional days' written notice to the Contractor, :;top the Work of this S9bcontract until pay- ment of the amount owing has been received. The Subcontract Sum shall, by appropriate adjustment, be increased by the amount of the Subcontractor's reasonable costs of shutdown, delay and start-up. ARTICLE 5 CHANGES IN THE WORK 5.1 The Owner may make changes in the Work by issuing Modifications to the Prime Contract. Upon receipt of such a Modification issued subsequent to the execution of the Subcon- tract Agreement, the Contractor shall promptly notify the Sub- contractor of the lVlodificatlon. Unless otherwise directed by the Contractor, the Subcontractor shall not thereafter order materials or perfonTt Work which would be inconsistent with the changes made lay the Modifications to the Prime Contract. 5.2 The Subcontractor may be ordered in writing by the Con- tractor, without invalidating this Subcontract, to make changes in the Work within the general scope of this Subcontract con- sisting of additions, deletions or other revisions, including those required by Modifications to the Prime Contract issued subsequent to the execution of this Agreement, the Subcontract Sum and the Subcontract Time being adjusted accordingly. The Subcontractor, pric,r to the commencement of such changed or revised Work, shall submit promptly to the Contractor written copies of a claim for adjustment to the Subcontract Sum and Subcontract Time for such revised Work in a manner consis- tent with requirements of the Subcontract Documents. 5.3 The Subcontractor shall make claims promptly to the Con- tractor for additional cost, extensions of time an~l damages for delays or other causes in accordance with the Subcontract from the THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W, WASHINGTON, D.C. :!0006 A401-1987 4 Documents. A clakn which will affect or become part ora claim which the Contractor is required to make under the Prime Con- tract within a specified time period or in a specified mariner shall be made in sufficient time to permit the Contractor to satisfy the requirements of the Prime Contract, Such claims shall be received by the Contractor not less than two working days preceding the time by which the Contractor's claim must be made, 'Failure of the Subcontractor to make such a timely claim shall bind the Subcontractor to the same consequences ~.s those to which the Contractor is bound. ARTICLE 6 ARBITRATION 6.1 Any controversy or claim between the Contractor and the Subcontractor arising out of or related to this Subcontract, or the breach thereof, shall be settled by arbitration, which shall be conducted in the same manner and under the same pro- cedure as provided in the Prime Contract with respect to claims between the Owner and the Contractor, except that a decision by the Architect shall not be a condition precedent to arbitra- tion. If the Prime Contract does not provide for ~rbitration or fails to specify the manner and procedure for arbitration, it shalI be conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association cur- rently in effect unless the parties mutually agree otherwise. 6.2 Except by written consent of the person or entity sought to be joined, no arbitration arising out of or relating to the Sub- contract shall include, by consolidation or joinder or in any other manner, any person or entity not a party to the Agree- ment under which such arbitration arises, unless it is showo at the time the demand for arbitration is filed that (1) such person or entity is substantially involved in a common question of fact or law, (2) the presence of such person or entity is required if complete relief is to be accorded in the arbitration, (5) the inter- est or responsibility of such person or entity in the matter is not insubstantial, and (4) such person or entity is not the Architect, the Architect's employee, the Architect's consultant, or an employee or agent of any of them. This agreement to arbitrate and any other written agreement to arbitrate with an additional person or persons referred to herein shall be specifically en- forceable under applicable law in any court having jurisdiction thereof. 6.3 The Contractor shall give the Subcontractor prompt writ- ten notice of any demand received or made by the Contractor for arbitration if the dispute involves or relates to the Work, materials, equipment, rights or responsibilities of the Subcon- tractor. The Contractor shall consent to inclusion of the Sub- contractor in the arbitration proceeding whether by joinder, consolidation or otherwise, if the Subcontractor requests in writing to be included within ten days after receipt of the Con- tractor's notice. 6.4 The award rendered by the arbitrator or arbitrators shall be f'mal, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. 6.6 This Article 6 shall not be deemed a limitation of rights or remedies which the Subcontractor may have under Federal law, under state mechanics' lien laws, or under applicable hbor or material payment bonds unless such rights or remedies are expressly waived by the Subcontractor. ARTICLE 7 TERMINATION, SUSPENSION OR ASSIGNMENT OF THE SUBCONTRACT. ~ 7.1 TERMINATION BY THE sUBCONTRACTOR 7.1.1 The Subcontractor may terminate the Subcontract for the same reasons and under the same circumstances and pro- cedures with respect to the Contractor as the Contractor may terminate with respect to the Owner under the Prime Contract, or for nonpayment of amounts due under this Subcontract for 60 days or longer. In the event of such termination by the Sub- contractor for any reason which is not the fault of the Subcon- tractor, Sub-subcontractors or their agents or employees or other person~ performing portions of the Work under contract with the Subcontractor, the Subcontractor shall be entitled to recover from the Contractor payment for Work executed and for proven loss with respect to materials, equipment, too[s, and construction equipment and machinery, including reasonable overhead, profit and damages, 7.2 TERMINATION BY THE CONTRACTOR 7,2.1 If the Subcontractor persistently or repeatedly fails or neglects to carry out the Work in accordance with the Subcon- tract Documents or otherwise to perform in accordance with this Agreement and fails within seven days after receipt of writ- ten notice to commence and continue correction of such default or neglect with diligence and promptness, the Contrac- tor may, after seven days following receipt by the Subcontrac- tor of an additional written notice and without prejudice to any other remedy the Contractor may have, terminate the Subcon- tract and finish the Subcontractor's Work by whatever method the Contractor may deem expedient, If the unpaid balance of the Subcontract Sum exceeds the expense of finishing the Sub- contractor's Work, such excess shall be paid to the Subcontrac- tor, but if such expense exceeds such unpaid balance, the Sub- contractor shall pay the difference to the Contractor. 7.3 ASSIGNMENT OF THE SUBCONTRACT 7.3.1 In the event of termination of the Prime Contract by the Owner, the Contractor may assign th~ Subcontract to the Owner, with the Owner's agreement, subject to the provisions of the Prime Contract and to the prior rights of the surety, if any, obligated under bonds relating to the Prime Contract. If the Work of the Prime Contract has been suspended for more than 30 days, the Subcontractor's compensation shall be equitably adjusted. 7.3.2 The Subcontractor shall not assign the Work of this Sub- contract without the written consent of the Contractor, nor subcontract the whole of this Subcontract without the written consent of the Contractor, nor further subcontract portions of this Subcontract without written notification to the Contractor when such notification is requested by the Contractor. AIA DOCUMENT A401 * CONTRACTOR-SUBCONTKACTOR AGREEMENT * TWELFTH EDITION * AIA® · © 1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, DC, 20006 ARTICLE 8 THE WORK OF THIS SUBCONTRACT 8.1 The Subcontractor shall execute the following portion of the Work described in the Subcontract Documents, including all labor, materials, equipment, services and other items required to complete such portion of the Work, except to the extent specifically indicated in the Subcontract Documents to be the responsibility of others. The scope of Work for this Subcontract covers furnishing and installing steel studs, drywall, insulation in metal studs, Gypsum sheathing, vapor barrier, lead shielding in drywall partitions, acoustical ceiling systems, and seismic protection for acoustical ceilings. EXCLUDED from this Subcontract is layout, demolition, dumpster and disposal costs, grouting of hollow metal frames, fire sating, fire caulking, temporary partitions, temporary weather enclosures, temporary heat, and plaster patch. ARTICLE 9 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 9.1 The Work to be performed under this Subcontract shall be commenced as directed by the General Contractor and subject to authorized adjustments, this Work shall be performed in accordance with a schedule established by the General Contractor and agreed to by the Subcontractor to permit substantial completion of the total project not later than April 1~-, 2002. 9.2 This project has a liquidated damage clause of $570 per day. In the event substantial completion is not achieved by April 14, 2002, and liquidated damages are imposed and if the Subcontractnr materially contributed to the failure to achieve substantial completion by the required date, the Contractor may assess the Subcontractor a portion or the full amount of the liquidated damage sum. 9.3 Time is of the essence of this Subcontract. 9.4 No extension of time will be valid without the Contractor's written c. onsent after claim made by the Subcontractor in accordance with Paragraph 5.2. AIA DOCUMENT A401 · CONTRACTOR-SUBCONTRACTOR AGREEMENT · TWELFTH EDITION · AIA® · el 987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, DC. 20006 A401-1987 6 ARTICLE 10. SUBCONTRACT SUM 10.1 The Contractor shall pay the Subcontractor in current fimds for performance of the Subcontract the Subcontract Sum of FIVE HUNDRED NINETY-FOUR THOUSAND AND 00/100 ................... DoUars($59~,000.00 ..................... ~), subject to additions and deductions as provided in the Subcontract Documents. 10.2 The Subcontract Sum is based upon the following alternates, if any, which are described in the Subcontract Documents and have been accepted by the Owner and the Contractor as may be applicable to the Work of this Subc0n~;ract. 10.2.1 All applicable taxes have been Included in the Contract Sum. 10.2.2 As a result of your bid proposal and subsequent negotiations. 10.3 Unit prices, if any, are as follows: NONE ARTICLE 11 PROGRESS PAYMENTS 11.1 Based upon applications for payment submitted to the Contractor by the Subcontractor, corresponding to Applications for Payment submitted by the Contractor to the Architect, and Certificates for Payment issued by the Architect, the Contractor shall make progress payment8 on account of the Subcontract Sum to the Subcontractor as provided below and elsewhere in the Subcontract Documents. 11.2 Thc period covered by each application for payment shall be one calendar month cnding on the last day of the month. 11.3 Provided an application for payment is received by the Contractor not later than the tventy-flfth (25th) day of a month, the Contractor shall include the Subcontractor'$ Work covered by that application in the next Application for Pay- ment which the Contractor is entitled to submit to the Architect. The Contractor shall pay the Subcontractor each progress payment AIA DOCUMENT A401 · CONTRACTOR-SUBCONTRACTOR AGREEMENT · 'I'~'ELF'rH EDITION · AIA® · © 1987 THE AMERICAN INSTITUTE OF ARCH[TECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C, 20006 A401-a9S? 7 within three working days after the Contractor receives payment from the Owner. 11.4 If an application for payment is received by the Contractor after the applic;ttion date fLxed above, the Subcontractor's Work covered by it shall be included by the Contractor in the next Application for Payment submitted to the Architect. 11.$ Each application for payment shall be based upon the most recent schedule of values submitted by the Subcontractor in accordance with the Subcontract Documents. The schedule of values shall allocate the entire Subcontract Sum among,the various portions of the Subcontractor'$ Work and be prepared in such form and supported by such data to substantiate its accuracy as the Contractor may require. This schedule, unless objected to by the Contractor, shall be used as a basis for reviewing the Subcontractor's applications for payment. 11.8 Applications for payment submitted by the Subcontractor shall indicate the: percentage of completion of each portion of the Subcontractor's Work as of the end of the period covered by the application for payment. 11.? Subject to the provisions of the Subcontract Documents, the amount of each progress payment shall be computed as follows: 11.?.1 Take that portion of the Subcontract Sum property allocable to completed Work as determined by multiplying the percemage completion of each portion of the Subcontractor's Work by the share of the total Subcontract Sum allocated to that portion of the Subcontractor's Work in the schedule of values, less that percentage actually retained, if any, from payments to the Contractor on account of the Work of the Subcontractor. Pending t'mal determination of cost to the Contractor of changes in the Work which have been properly authorized by Construction Change Directive, amounts not in dispute may be included to the same extent provided in the Prime Contract, even though the Subcontract Sum has not yet been adjusted; 11.?.2 Add that portion of the Subcontract Sum properly allocable to materia~ and equipment delivered and suitably stored at the site by the Subcontractor for subsequent incot'poration in the Subcontractor's Work or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing, less the same percenrage retalnage required by the Prime Contract to be applied to such materials and equipment in the Contractor's Application for Payment; 11.?.$ Subtract the aggregate of previous payments made by the Contractor; and 11.?.4 Subtract amounts, if any, calculated under Subparagraph 11,7.1 or 11.7.2 which are related to Work of the Subcontractor for which the Architect has withheld or nullified, in whole or in part, a Certificate of Payment for a ;cause which is the fault of the Subcontractor. 11.8 SUBSTANTIAL COMPLETION 11.8.1 When the Subcomractor's Work or a designated portion thereof is substantially complete and in accordance with thc require_ ments of the Prime Contract, the Contractor shall, upon application by the Subcontractor, make prompt application for payment for such Work. Within 30 days following issuance by the Architect of the Certificate fo r Payment covering such substantially completed Work, the Contractor shall, to the full extent allowed in the Prime Contract, make payment to the Subcontractor, deducting any por- tion of the funds for the Subcontractor's Work withheld in accordance with the Certificate to cover costs of items to be completed or corrected by the Subcontractor. Such payment to the Subcontractor shall be the entire unpaid balance of the Subcontract Sum if a f~li release of rerainage is allowed under the Prime Contract for the Subcontractor's Work prior to the completion of the entire Project. If the Prime Contract does not allow for a full release of retain,age, then such payalent shall be an amount which, when added to previous payments to the Subcontractor, will reduce the retainage on the Subcontractor's substantially compieted Work to the same percentage of retalnage as that on the Contractor's Work covered by the Certificate. ARTICLE 12 FINAL PAYMENT 12.1 Final payment, constituting the entire unpaid balance of the Subcontract Sum, shall be made by tbe Contractog to the Subcon- tractor when the Subcontractor's Work is fully performed in accordance with the requirements of the Contract Documents, the Ar- chitect has issued a Certificate for Payment covering the Subcontractor's completed Work and the Contractor has received payment from the Owner. I f, for any cause which is not the fauIt of the Subcommctor, a Certificate for Payment is not issued or the Contractor does not receive timely payment or does not pay the Subcontractor within three working days after receipt of payment from the Owner, final payment to the Subcontractor shall be made upon demand. 12.1.1 final payment will not be due until ail of the Subcontractor's obligations regarding warranties, certifications, as-built drawings, operating instructions, and punch list items are completed to the satisfaction of the Owner and Architect. 12.2 Before issuance of the final payment, the Subcontractor, if required, shall submit evidence satisfactorT to the Contractor that all payrolls, bills for materials and equipment, and all known indebtedness connected with the Subcontractor's Work have been satisfied, THE AMERICAN INSTITUTE OF ARCHITECTS. 1735 NEW YORK AVENUE, N.W., WASHINGTON, D,C 20006 A401-1987 8 13.1 ARTICLE 13 INSURANCE AND BONDS The Subcontractor shall purchase and maintain insurance of the foLlowing types of coverage and limits of l~ability: See Attachment "A" - Insurance Coverage Requirements. 13.2 Coverages, whether written on an occurrence or claims-made basis, shall be maintained without interruption from date of commencement of the Subcontractor's Work until date of Final payment and termination of any coverage required to be main- talned after t'mal payment. 13.3 Certificates of insurance acceptable to the Contractor shall be Filed with the Contractor prior to commencement of the Sub- contractor's Work. These certificates and the insurance policies required by this Article 13 shall contain a provision that coverages afforded under the policies will not be cancelled or allowed to expire until at least 30 days' prior written notice has been given to the Contractor. If any of the foregoing insurance coverages are required to remaha in force after final payment and are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the Final application for payment as required in Article 12. If any information concerning reduction of coverage is not furnished by the insurer, it shall be furnished by the Subcontractor with reasonable promptness according to the Subcontractor's information and belief. 13.4 The Contractor shal~, furnish to the Subcontractor satis~,tctory evidence of insurance required of the Contractor under the prime Contract. 13.5 Waivers of Subrogation. The Contractor and Subcontractor waive all rights against ( 1 ) each other and any of their Subcontrac- tors, Sub-subcontractors, agents and employees, each of the other, and (2) the Owner, the Architect, the Architect's consuitants~ separate contractors, and any of their subcontractors, sub-subcontractors, agents and employees for damages caused by fire or other perils to the extent covered by property insurance provided under the Prime Contract or other property insurance applicable to the Work, except such rights as they may have to proceeds of such insurance held by the Owner as fiduciary. The Subcontractor shall require of the Subcontractor's Sub-subcontractors, agents and employees, by appropriate agreements, written where legally required for validity, similar waivers in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or other-wise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or othet'wise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. 13.6 The Contractor shall promptly, upon request of the Subcontractor, furnish a copy or permit a copy to be made of any bond covering payment of obligations arising under the Subcontract. 13.7 lhis Subcontract does not require Performance and/or Labor and r4etarial Payment Bonds. ARTICLE 14 TEMPORARY FACILITIES AND WORKING CONDITIONS 14.1 Unless otherwise provided in this Subcontract, the Contractor shall furnish and make available at no cost to the Subcontractor the following temporary facilities and services: Normal electric power, water, and toilet facilities will be provided to the subcontractor at no charge. Not withstanding the above, subcontractor will be required to provide and install temporary facilities or systems as delineated in their scope of work (Article 2 of this subcontract) or in the contract documents. Limited storage areas will be made available to the subcontractor as directed by the General Contractor, Subcontractor's employees shall park vehicles only at locations directed by the General Contractor. Security for stored materials, tools, and equipment will be the responsibility of the subcontractor. Unloading, material handling, and hoisting for work of this subcontract will be the responsibility of the subcontractor. The subcontractor will clean up after his own work, as well as dispose of any packaging materials or other rubbish which he has generated. All waste, rubbish, and unsuitable material shall be legally disposed of off the site by the subcontractor. lZ~.Z Specific working conditions: See Pages 9a, 9b, and 9c of this Subcontract Agreement. AIA DOCUMENT A401 * CONTRACTOR-SUBCONTI{ACTOR AGREE;~IENT · T~0'ELFTH EDITION · AIA· · © 1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W, WASHINGTON, D.C. 20006 A401-1987 9 ARTICLE 14.2 * WORKING CONDITIONS 14.2.1 14.2.2 This project is being administered by our Project Manager, Les Barno. All inquiries should be directed to Mr. Barno. Our Site Superintendent is Terry Strock. The job telephone number is not available at this time. Subcontractor shall comply with all requirements of the Right-To-Know Act and MUST supply a copy of their Written Hazard Communication Policy and MSDS information for all hazardous material to be used on THIS project. This data must be received by our Safety Director PRIOR to any work being performed on this job. Any fines and penalties imposed upon and collected from the General Contractor which result from the failure of the subcontractor to comply with laws and regulations pertaining to the Right-To-Know Act, hazardous communications, and other similar regulations, shall be reimbursed by the subcontractor to the General Contractor and the General Contractor is authorized to unilaterally deduct such sums from this subcontract amount. 14.2.3 Subcontractor shall be responsible to perform all work in a safe manner in compliance with OSHA Regulations and any special safety requirements of the Owner. Subcontractor shall adhere to a proper Assured Grounding Program. Any fines and penalties imposed upon and collected from the General Contractor which result from the failure of the subcontractor to comply with laws and regulations pertaining to OSHA or other similar regulations, shall be reimbursed by the subcontractor to the General Contractor and the General Contractor is authorized to unilaterally deduct such sums from this subcontract amount. 14.2.4 Subcontractor shall promptly forward submittals to the General Contractor for approval. · Shop Drawings ~ eight (8) prints; two (2) copies will be returned. · Catalog Cuts - eight (8) copies; two (2) copies will be returned. 14.2.5 Subcontractor is required to prepare as-built drawings, maintenance manuals, operating instructions, and deliver warranties covering his work. As-built drawings shall show any deviations from the contract document~; and provide specific dimensional locations for hidden features which may require later access. 14.2.6 The Owner will continue to utilize this facility and conduct their normal operations. Subcontractor shal~ cooperate with the Owner and General Contractor to minimize disruption to the Owner's operation. When requested to do so, the subcontractor shall have an authorized representative in attendance at coordination meetings to commit to scheduling requirements. 14.2.7 14.2.8 Substitutions for specified products are only permitted when specifically requested and approved. Do not submit shop drawings or catalog information for substitutions which have not been previously authorized. Subcontractor shall pro~ide products to be incorporated into the work of the project that are new, undamaged, and unused at the time of the installation, unless otherwise indicated in the Contract Documents. Subcontractor shall produce, upon request, evidence supporting the source of materials used in the work. The products provided under this Subcontract shall meet or exceed the quality specified in the Contract Documents. The burden of proof of quality for all products provided rests with the Subcontractor. The costs incurred for substantiating quality shall be borne by the Subcontractor. If the Owner accepts substituted materials of a lesser quality than specified, the Owner shall be entitled to a credit equal to the difference in cost of the products specified and the products provided. 14.2.9 Subcontractor fully warrants and guarantees for the benefit of the Owner as purch;~ser the effectiveness, fitness for the purpose intended, quality and merchantability of any item provided and/or installed by such Subcon'tractor. 14.2.10 This subcontractor sharl be responsible for all cutting and patching necessary to accommodate the work of this subcontract. 14.2.11 Subcontractor shall comply with, but not be limited to, the following: Ali applicable codes, regulations, and requirements of government bodies and utilities having jurisdiction or authority Anti-Pollution Requirements - Act 247 Underground Utilities - Act 287 Non-Discrimination Provisions regarding employment, purchasing of matedals, and engaging the services of others 14.2J2 Subcontractor shall not incorporate in the work nor permit to be brought to tho site any materials or substances which are considered "hazardous materials" or "toxic materials" as defined or designated under any act, statute, code, regulation, or ordinance promulgated by any federal, state, or local body. 14.2.14 Subcontractor shall comply with the Drug and Alcohol Policies of R. S. Mowery ~ Sons, Inc. and the Owner. 14.2.15 Smoking is not permitted. 14.2.16 Subcontractor shall not erect any signs on the property. Signage mounted on trailers will be permitted. 14.2.17 14.2.18 14.2.19 14.2.20 14.2.21 14.2.22 14.2.23 14.2.24 14.2.25 14.2.26 14.2.27 14.2.28 Subcontractor shall obtain and pay for any permits, licenses, and certificates required by Law and/or any public authority for the proper execution and completion of its work. Subcontractor shall furnish proof of payment for all such permits, licensee, and certificates, or proof that no permits, licenses, or certificates are required. This provision doss not apply to the Building Permit. Subcontractor shall give ail notices and comply with all applicable laws, ordinances, regulations, rules, and orders of any public authority bearing on the performance of the work. If Subcontractor observes that any of the Contract Documents are at variance therewith in any respect, it shall promptly notify the Contractor in writing. If Subcontractor performs any work knowing it to be contrary to such applicable laws, ordinances, regulations, rules, or orders, it assumes full responsibility therefore and shall bear all costs attributable thereto. General Contractor shall be advised of any sub-subcontractors to be engaged by the Subcontractor. Sub-subcontractors are subject to approval by General Contractor, which shall not be unreasonably withheld. - Subcontractor warrants and represents that the subcontractor shall not knowingly or negligently communicate or disclose at any time to any person any information in connection with the work of this project, except as may be required to perform the work or by any applicable law. Subcontractor shall furnish, upon delivering signed subcontract, the name of one { 1) individual who will act as Project Coordinator for the Subcontractor. Phone numbers are to be provided such that the Project Coordinator, or his authorized substitute, can be contacted at all times by the General Contractor. All provisions and regulations of the Federal and State Wages Acts shall be adhered to in the performance of this work. Subcontractor shall promptly correct all work rejected by the Owner, Architect, or Contractor as defective or as failing to conform to the Contract Documents, whether observed before or after substantial completion and whether or not fabricated, installed, or completed. All defective or non-conforming work shall be promptly removed from the site. Subcontractor shall bear all costs of correcting such rejected work. Should the Subcontractor fail to respond in an expedient manner, the Contractor may correct the work and deduct the cost from the Contract Sum of this Subcontract. If, within one year after the date of substantial completion and acceptance of all work performed under the Owner/Contractor Agreement or within such longer period of time as may be prescribed by Law or by the terms of any applicable special guarantee required by the Contract Documents, any of the work is found to be defective or not in accordance with the Contract Documents, Subcontractor shall correct it promptly after receipt of a written notice from the Contractor to do so. The Contractor shall give such notice promptly after discovery of the condition. Subcontractor shall bear the cost of making good all work destroyed or damaged by such removal or correction. If subcontractor receives any directive to perform additional work or modify the requirement of the work cf this subcontract, the subcontractor shall waive the right to additional compensation if he does not advise the General Contractor of any additional cost prior to proceeding with the additional work or change. All claims for additional costs, extensions of time or otherwise with respect to the work of this Subcontract shall be submitted to the Contractor in the manner provided in the Contract Documents for like claims by the Contractor upon the Owner. Subcontractor is without privity of Contract to the Owner and it agrees by signing this Subcontract that it neither acquires nor intends to acquire any rights against the Owner on a third party beneficiary theory or any others. Subcontractor represents and warrants that any systems, system components, equipment, or products furnished under this Subcontract shall, when used in accordance with manufacturers' documentation, be able to accurately process date and time data (including, but not limited to, calculating, comparing, aqd sequencing) from, into, and between the 20=h and 21" centuries, and the years 1999 and 2000, includingleap-year calculations. For purposes of this clause, the 21't century begins January 1, 2000. Intheevent of any breach of this warranty, Subcontractor shall, at its sole cost and expense, restore the system, system component, equipment, or product to the same level of performance as warranted herein, or repair or replace the system, system component, equipment, or product with conforming product so as to minimize interruption, time being of the essence. In the event of any breach of warranty, Subcontractor will indemnify the General Contractor against any and all claims, demands, costs, expenses (including attorney's fees), and causes of action arising out of or in any manner relating to the breach. Nothing in this warranty shall be construed to limit any rights or remedies the General Contractor may otherwise have under this Subcontract with respect to defects other than Year 2000 performance. ' Subcontractor shall provide materials for the Owner's later use or as replacement material as required by the Contract Documents. Subcontractor shall deliver to the Contractor's Superintendent or Project Manager such materials in the required quantities. At the time of delivery, the Subcontractor shall provide a written description of each material provided and the quantities which shall be signed by the Contractor to acknowledge receipt. 9b 14.2.29 The following Contract Clauses are specifically included in this Subcontract as required by the Owner: 52.214-26 52.214-28 52.219-9 I 52.222-4 52.222-6 52.222-7 52.222-8 52.222-9 52.222-10 52.222-11 52.222-12 52.222-13 52.222-14 52.222-15 52.222-35 52.222-36 52.222-37 52.223-2 52.223-6 52.225-5 52.225-11 52.226-1 52.227-1 52.227-2 52.228-5 52.236-13 52.249-2 I 52.204-7000 52.209-7000 52.236-7000 52.247-7023 52,247-7024 52.214-4028 52.222-4026 52.222-4027 52.246-12 52.246-21 52,228-4001 Audit and Records-Sealed Bidding (OCT 1997) Subcontractor Cost or Pricing Data-Modifications ~ Sealed Bidding {OCT 1997) Small Business Subcontracting Plan (JAN 1999)-Alternate I (JAN 1999) Contract Work Hours and Safety Standards Act * Overtime Compensation (JUL 1995) Davis-Bacon Act (FEB 1995} Withholding of Funds (FEB 1988) Payrolls and Basic Records (FEB 1988) Apprentices and Trainees (FEB 1988) Compliance with Copeland Act Requirements (FEB 1988) Subcontracts (Labor Standards) (FEB 1988) Contract Termination-Debarment (FEB 1988) Compliance with Davis-Bacon and Related Act Regulations (FEB 1988) Disputes Concerning Labor Standards (FEB 1988) Certification of Eligibility (FEB 1988) Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era (APR 1998) Affirmative Action for Workers with Disabilities (JUN 1998) Employment Reports on Disabled Veterans and Veterans of the Vietnam Era (JAN 1999) Clean Air and Water (APR 1984) Drug-Free Workplace (JAN 1997) Buy American Act-Construction Materials (JUN 1997) Restrictions on Certain Foreign Purchases {AUG 1998) Utilization of Indian Organizations and Indian-owned Economic Enterprise (MAY 1999) Authorization and Consent (JUL 1995) Notice and Assistance Regarding Patent and Copyright Infringement (AUG 1996) Insurance-Work on a Government Installation (JAN 1997) Accident Prevention {NOV 1991 ) Termination for Convenience of the Government (Fixed-Price) (SEP 1996)-Alternate I (SEP 1996) Disclosure of Information (DEC 1991) Acquisition from Subcontractors Subject to On-site Inspection under the Intermediate-range Nuclear Forces (INF) Treaty (NOV 1995) Modification Proposals-Price Breakdown (DEC 1991) Transportation of Supplies by Sea (NOV 1995) Notification of Transportat{on of Supplies by Sea (NOV 1995) Subcontractor Cost or Pricing Data-Modifications-Sealed Bidding (OCT 1997) Equal Opportunity (APR 1984) (Deviation) Affirmative Action Compliance Requirements for Construction Inspect[on of Construction (AUG 1996) Warranty of Construction (MAR 1994) Required Insurance 9c ARTICLE 15 MISCELLANEOUS PROVISIONS 15.1 Where reference is made in this Agreement to a provision of the General Conditions or another Subcontract Document, the reference refers to that provision as amended or supplemented by other provisions of the Subcontract Documents. 15.2 Payments due and unpaid under this Subcontract shall bear interest from the date payment is due at such rate as the pazties may agree upon in writing or, in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. 15.3 If requested by the General Contractor, the subcontractor shall promptly furnish an all inclusive list of sub- subcontractors employed by the subcontractor and all material suppliers of the subcontractor. Absent a legitimate dispute, subcontractor authorizes the General Contractor to issue joint checks to suppliers and sub-subcontractors when subcontractor's account for this project is overdue or subcontractor fails to promptly pay sub-subcontractors or suppliers for work or materials for which the subcontractor has received payment from the General Contractor. If the subcontractor is adjudged a bankrupt, or if he makes a general assignment for the benefit of his creditors, or if a receiver is appointed on account of his insolvency, the Contractor is authorized to make payment of sums properly due to all of subcontractor's sub-subcontractors and material suppliers. ARTICLE 16 ENUMERATION OF SUBCONTRACT DOCUMENTS 16.1 The Contract Documents, which constitute the entire Agreement between the Owner and Contractor, are listed in Article 1, and the documents which are applicable to this Subcontract, except for Addenda and Modifications issued after execution of this Subcontract, are enumerated as follow.=:: A listing of the contract documents is attached hereto. We have forwarded with this subcontract those drawings and specifications which we deem appropriate to this work. A full complement of the contract documents is available for your inspection at the site and at the General Contractor's home office. This Agreement entered into as of the day and year first written above· CON~ONS, IHC. (Sig.at.re) ~ Bruce Go Rosendale? Executive Vice President (Printed name and title) S~/~NTRAC'TOR: ~ C. HAINES T/ALL & CEILING CONTHACTOH~ (Signature) (Printed name an~ title) THE AMERICAN iNSTITUTE OF ARCHITECTS, 1735 NEW YORI( AVENUE. N.W., WASHINGTON. D.C. 20006 A401-1987 10 ATTACHMENT "A" INSURANCE COVERAGE REQUIREMENTS 13.1.1 Prior to starting work, the Subcontractor shall obtain the required insurance from a responsible insurer, and shall furnish satisfactory evidence to the Contractor that the Subcontractor has complied with the requirements of this Article 9, Similarly, the Contractor shall furnish to the Subcontractor satisfactory evidence of insurance required of the Contractor by the Contract Documents. 13.1.2 The Contractor and Subcontractor waive all rights against each other and against the Owner, the Architect, separate contractors and all other subcontractors for damages caused by fire or other perils to the extent covered by property insurance provided under the General Conditions, except such rights as they may have to the proceeds of such insurance. While performing the Work of this subcontract, the Subcontractor shall maintain, at their own cost and expense, the following insurance in a company or companies licensed to do business in the Commonwealth of Pennsylvania. Comorehenslve or Commercial General Liability Insurance on an occurrence basis including coverage for d~rect operations, sublet work, demolition and wrecking, and contractual liability with limits not less than stated below: a. General Aggregate $1,000,000 b. Products & Completed Operations Aggregate $1,000,000 c. Personal & Advertising Injury Aggregate $1,000,000 d. Each Occurrence $1,000,000 Automobile Uabilitv Insurance including coverage for owned, non-owned,.and hired vehicles with limits not less than stated below: a. Combined Bodily Injur,/& Property Damage $1,000,000 each occurrence 3. Excess Liability Insurance $2,000,000 each occurrence/aggregate 4. Workers' Comcensation and Emolover's Liabilltv Insurance Worker's Compensation - Statutory Employer's Liability: 1 .) Each accident 2.) Disease-policy limit 3.) Disease-each employee Amounts & coverage as required by law $100,000 $500,000 $100,000 R. S. Mowery & Sons, Inc. shall be named as an additional insured on each of these policies except for Workers' Compensation. All insurance policies shall contain a provision that the coverages afforded thereunder shall not be cancelled, nor modified, until at least thirty (30) days prior written notice has been given to R. S. Mowery & Sons, Inc. A Certificate of Insurance shall be filed with R. S. Mower'/& Sons, Inc. prior to the commencement of your work. ATTACHMENT "B" Project: Owner: Dunham U.S. Army Health Clinic Addition Carlisle Barracks, Carlisle, PA RSM Job No. 3162 Department of the Army Baltimore District, Corps of Eng. P. 0. Box 1715 Baltimore, MD 21203-1715 Contractor:: Contract Documents R. S. Mowery & Sons, Inc. 625 Hamilton Street Carlisle, PA 17013 Specifications prepared by the Corps of Engineers and Ewing-Cole-Cherry-Brott, Inc. - dated June 28, 1999. Amendments: I - dated 7/14/99 3 ~ dated 8/02/99 2 - dated 7/20/99 4 - dated 8/10/99 Drawings as listed below: Plate Sheet Drawing Number Number Drawin~l Title Date 1 A0.1 Cover Sheet 3/22/99 2 A0.2 Construction Phase 1 3/22/99 3 A0.3 Construction Phase 2 3/22/99 4 A0.4 Construction Phase 3 3/22/99 5 A1.1 Existing Site Plan 3/22/99 6 A1.2 Demolition Plan 3/22/99 7 A1.3 Layout Plan 3/22/99 8 A1.4 Grading, Stormwater Management, Erosion ,& Sedimentation 3/22/99 Control and Utility Plan 9 A1.5 Landscape Plan 3/22/99 10 A1.6 Site Details 3/22/99 11 A1.7 Site Details 3/22/99 12 A1.8 Site Details 3/22/99 13 A1.9 Site Details 3/22/99 14 A2.1 Demolition Plan 3/22/99 15 A2.2 Roof Plan 3/22/99 16 A2.3 Key Plan 3/22/99 17 A2.4 First Floor Plan Alteration Zone 3/22/99 Page 1 of 6 Plate Sheet Drawing Number Number Drawing Title Dat.e 48 FP-I.1 Automatic Sprinkler Plan 3/22/99 49 FP-1.2 Fire Alarm 3/22/99 50 FP-1.3 Life Safety Plan 3/22/99 51 C1.1 Test Boring Plan 3/22/99 52 C1.2 Test Boring Log 3/22/99 53 C1.3 Test Pit Log 3/22/99 54 C1.4 Test Pit Log 3/22/99 55 S0.1 Structural Index and General Notes 3/22/99 56 S2.1 Foundation and First Floor Framing Plan 3/22/99 57 S2.2 Roof Framing Plan 3/22/99 58 $2.3 Partial Framing Plans 3/22/99 59 S3.1 Sections and Details 3/22/99 60 S3.2 Sections and Details 3/22/99 61 S4.1 Column Schedule and Details 3/22/99 62 S5.1 Typical Details 3/22/99 63 M-1 HVAC Index Sheet 3/22/99 64 M-2 Phasing Plan HVAC Phase I 3/22/99 65 M-3 Phasing Plan HVAC Phase II 3/22/99 66 M-4 Phasing Plan HVAC Phase III 3/22/99 67 M-§ HVAC Demolition First Floor Ductwork ,~, Piping 3/22/99 68 M-6 HVAC Demolition First Floor Ductwork ,~, Piping 3/22/99 69 M-7 HVAC Demolition Crawl Space Piping 3/22/99 70 M-8 HVAC Demolition Crawl Space Piping 3/22/99 71 M-9 HVAC Demolition Roof Plan 3/22/99 72 M-lO HVAC Demolition Roof Plan 3/22/99 73 M-11 HVAC New Work Floor Plan Ductwork 3/22/99 74 M-12 HVAC New Work Floor Plan - Piping 3/22/99 75 M-13 HVAC New Work Floor Plan Ductwork 3/22/99 76 M-14 HVAC New Work Floor Plan - Piping 3/22/99 77 M-15 HVAC New Work Roof Plan 3/22/99 Page 3 of 6 Number Number Drawing Title Date 18 A2.5 First Floor Plan New Construction Plan 3/22/99 19 A2.6 Reflected Ceiling Plan Alteration Plan 3/22/99 20 A2.7 Reflected Ceiling Plan New Construction Plan 3/22/99 21 A2.8 Equipment Plan - Quad A 3/22/99 22 A2.9 Equipment Plan - Quad B 3/22/99 23 A2.10 Equipment Plan - Quad C 3/22/99 24 A2.11 Equipment Plan - Quad D 3/22/99 25 A2.12 Equipment Plan - Quad E 3/22/99 26 A2.13 Equipment Plan ~ Quad F 3/22/99 27 A3.1 Building Elevations 3/22/99 28 A3.2 Building Sections 3/22/99 29 A3.3 Wall Sections 3/22/99 30 A3.4 Wall Sections & Details 3/22/99 31 A3.5 Details 3/22/99 32 A3.6 Roof Details 3/22/99 33 A3.7 Plan Details 3/22/99 34 A3o8 Plan Details 3/22/99 35 A4,1 Typical Partition Types and Details 3/22/99 36 A4.2 Door Types and Details 3/22/99 37 A4.3 Window/Louver Types and Details 3/22/99 38 A4.4 Equipment Elevations 3/22/99 39 A4.5 Cased Opening Elevations 3/22/99 ¢0 A4.6 Signage Details 3/22/99 41 A4.7 Toilet Room Plans & Elevations 3/22/99 42 A4.8 Door & Frame Schedule 3/22/99 43 A4,9 Door & Frame Schedule 3/22/99 44 A4.10 Finish Schedule I & Details 3/22/99 45 A4.11 Finish Schedule 2 3/22/99 46 A4.12 Interior Finishes Floor Plan 3/22/99 47 A4.13 Interior Elevations and Details 3/22/99 Page 2 of 6 Plate I Sheet I Drawing Number Number Drawing Title Date 108 P4.1 Schedules and Details Plumbing 3/22/99 109 HPE-1 Mechanical Equipment Coordination Schedule 3/22/99 110 HPE-2 Mechanical Equipment Coordination Schedule 3/22/99 111 E-1 Electrical and Communication Cover Sheet 3/22/99 112 EP-1 Phasing Plan ~ Electrical Phase I 3/22/99 113 EP-2 Phasing Plan - Electrical Phase II 3/22/99 114 EP-3 Phasing Plan - Electrical Phase III 3/22/99 115 E-2 Single Line Diagram Demolition 3/22/99 116 E-3 Single Line Diagram - New Work 3/22/99 117 E-4 Single Line Diagram - New Work (cont. I 3/22/99 118 E-5 Floor Plan - Demolition Power and Communication 3/22/99 119 E-6 Floor Plan - Demolition Lighting 3/22/99 120 E-7 Site Plan Electrical Demolition 3/22/99 121 E-8 First Floor Plan (East) Power 3/22/99 122 E-9 First Floor Plan (West) Power 3/22/99 123 T-1 First Floor Plan (East) Communication 3/22/99 124 T-2 First Floor Plan (West) Communication 3/22/99 125 E-lO First Floor Plan (East) Lighting 3/22/99 126 E-11 First Floor Plan (West) Lighting 3/22/99 127 E-12 Roof Plan Power and Lighting Protection 3/22/99 128 E-13 Site Plan Power and Communication 3/22/99 129 E- 14 Site Plan Lighting 3/22/99 130 E-15 Room Details Electrical and Communication 3/22/99 131 E-16 Lighting Fixture Schedule 3/22/99 132 E-17 Lighting Fixture Schedule (continued) 3/22/99 133 T-3 Diagrams - Communication 3/22/99 134 T-4 Diagrams - Communication (continued) 3/22/99 135 T-5 Diagram - Communications Public Addr,ess 8/17/98 136 T-6 Diagram - Communications Public Address 8/17/98 137 T~7 Diagram - Communications Public Address 8/17/98 Page 5 of 6 Plate Sheet I Drawing Number Number Drawin~l TitleI Date 78 M-16 HVAC New Work - Mechanical RSM Plans & Sections 3/22/99 79 M-17 HVAC New Work - Mechanical Roof Plans & Sections 3/22/99 80 M-18 HVAC Piping Flow Diagrams Heating & Cooling Systems 3/22/99 81 M-19 HVAC Air Flow Diagrams 3/22/99 82 M-20 HVAC Details 3/22/99 83 M-21 HVAC Details 3/22/99 84 M-22 HVAC Details 3/22/99 85 M-23 HVAC Details 3/22/99 86 M-24 HVAC Control Diagrams 3/22/99 87 M-25 HVAC Control Diagrams 3/22/99 88 M-26- HVAC Control Diagrams 3/22/99 89 M-27 HVAC Control Diagrams 3/22/99 90 M-28 HVAC Equipment Schedules 3/22/99 91 M-29 HVAC Equipment Schedules 3/22/99 92 M-30 HVAC Equipment Schedules 3/22/99 93 M-31 HVAC Equipment Schedules 3/22/99 94 HPE-1 Mechanical Equipment Coordination Schedule 3/22/99 95 HPE-2 Mechanical Equipment Coordination Schedule 3/22/99 96 P0.1 Plumbing index Sheet 3/22/99 97 P0.2.1 Phasing Plan - Plumbing Phase I 3/22/99 98 P0,2.2 Phasing Plan - Plumbing Phase II 3/22/99 99 P0.2.3 Phasing Plan - Plumbing Phase III 3/22/99 100 P1.1.1 Floor Plan Demolition - Service Piping 3/22/99 101 P1,1.2 Floor Plan Demolition - Drainage 3/22/99 102 P2.1.1 Floor Plan - Alteration Zone Service Piping 3/22/99 103 P2.1.2 Floor Plan- Alteration Zone Drainage 3/22/99 104 P2.2.1 Floor Plan New Construction Zone Service Piping 3/22/99 105 P2.2.2 Floor Plan New Construction Zone Drainage 3/22/99 106 P3.1 Riser Diagrams Plumbing 3/22/99 107 P3.2 Riser Diagrams Plumbing 3/22/99 Page 4 of 6 Plate I Sheet J Drawing Number Number Drawin~l Title Date 138 T-8 Diagram - Communications Public Address 8/17/98 139 E-18 Panelboard Schedules 3/22/99 140 E-19 Panelboard Schedules (continued) 3/22/99 141 E-20 Standard Details 3/22/99 142 E-21 Standard Details 3/22/99 143 E-22 Grounding System Diagram 3/22/99 144 HPE-1 Mechanical Equipment Coordination Schedule 3/22/99 145 HPE-2 Mechanical Equipment Coordination Schedule 3/22/99 Page 6 of 6 u~/~uo l~:ou '~'/±l flu '/~UU HAg-CORPS ENGRS ~002/004 PAYMENT BOND I~.,~¢, |OMB No.:9000-0045 [See instructions on reverse) --i October i, 1999 I R. S. Mowery & sons, Inc. 625 Hamilton Street Carlisle, PA 17013 T'YP6 OF QRGANI~TION f"X" one.~ Reliance Insurance Company 3 Parkway Philadelphia, PA 19102 pennsylvania PENAL SUM OF BOND L oo ieee 00 I~ACA31- 99-C-°083 ~ealth Clinic Addition OBLIGATION: CONDITIONS: WITNESS: PRINCIPAL a. Seal CORPO~ lES1 Corporate Sea{ Jr. · 4~itne~ FORM 25A (~v. 1(~ HAO-CORPS E~IGRS SURff, T~ BOND EI~BoRSZi~ 004/004 l~liaacc I n~Jrat~e ~ Contra~t S ~'c~7 ~ ' ami $~re.~ C,~ust~' TUTI:~- P,W''t 09/15/2003 12:05 FAX 717 730 7385 REAGER & ABLER ~002 V~RIIrlCAT~ON I, Paul Haines, hereby verify tlmt I am the President of P.C. Haines Wall & Ceiling Coutractors, Inc. and, as such, I am anthodzed to verify the avcrmants of the foregoing document are tree and correct to my personal knowledge, information and belief. I understand that false statements hcr~in am made subject to the penaltic~ of 18 Pa. C.$..~4904, relating to unswom falsification to authorities. Date: Paul Haines CERTIFICATE OF SERVICE AND NOW, this 25th day of September, 2003, I h~reby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. mail, first class, certified, postage prepaid and addressed as follows: James W. Kutz, Esquire McNees, Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 THoM P.C. HAINES WALL CONTRACTORS, IN( TRAVELERS CASU2 SURETY COMPAN5 and R.S. MOWERY ~ I, Christine M. is attached hereto as l~ and addressed to Defe Mowery & Sons, Inc. Street, P.O. Box 1166 attached hereto as Exl CEILING 'laintiff ,. LTY AND OF AMERICA, SONS, INC., )efendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2000 CiVIL ACTION CERTIFICATE OF SERVICE 2iccocioppo, verify that on November 3, 2003, I caused the Notice which :hibit A to be placed in the United States mail, first class, postage prepaid dants at Travelers Casualty and Surety Company of America and R.S. :/o James W. Kutz, Esquire, McNees, Wallace & Nurick, LLC, 100 Pine Harrisburg, PA 17108-1166. A copy of the certificate of mailing is ibit B. Christine M. Ciccocioppo, Paralegal REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011-4642 Telephone: (717) 763-1383 P.C. HAI/xFES WALL CONTRACTORS, IN( TRAVELERS CASU2 SURETY COMPANY and R.S. MOWERY & TO: Travelers Cast R.S. Mowery c/o James W. McNees, Wall 100 Pine Street P.O. Box 1166 Harrisburg, PA DATE OF NOTICE: YOU ARE IN DEFAI APPEARANCE PERS COURT YOUR DEFI: YOU. UNLESS.YOU A JUDGMENT MAY MAY LOSE YOUR P THIS NOTICE TO A CANNOT AFFORD ( OUT WHERE YOU £ CEILING taintiff ;TY AND DF AMERICA, SONS, INC., ..fendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2000 CIVIL ACTION IMPORTANT NOTICE and Surety Company of America and Sons, Inc. ~tz, Esquire :e & Nurick, LLC 17108-1166 Iovember 3, 2003 2T BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN )NALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE qSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, 3E ENTERED AGAINST YOU WITHOUT A HEARING AND YOU :OPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE ,AWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR NE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND kN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 EXHIBIT "A" Re sp ect fullffqs u)ff~dyr~ Thod, f~'O~. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 170tl-4642 Telephone: (717) 763-1383 Attorneys for Plaintiff U.S. POSTAL MAY BE USED PROVIDE FOR KEAG~ 2331 Iv ',-,az.t qJ ~ Travele~ c/o Jam~ 1 O0 Pim iRVICE CERTIFICATE OF MAILING ] .oA/flxfeeherein~tam?~s. DOMESTIC AND INTERNATIONAL MAIL, DOES NOT Sta eano~ SURANCE --POSTMASTER ~~trent ~ery,~ ~ons, mc. I ~ I'-~ W~{utz, Esquire I ~ I0 ~lCl{, LLC [ ffi { ,~, IttlJ ~,treet/PA)~3ox 11'66 ~ 2~ PS Form 3817 Mar. 1989 EXHIBIT "B" P. C. HAINES WALL & CEILING CONTRACTORS, INC., Plaintiff V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, and R. S. MOWERY & SONS, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2000 CIVIL ACTION NOTICE TO PLEAD TO: P.C. HAINES WALL & CEILING CONTRACTORS, INC. and its Attorney YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED ANSWER WITH NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE EN'FERED AGAiNST YOU. McNEES WALLACE & NURICK LLC By es W quire Attorney I.D. No. 47245 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (71'7) 232-8000 Attorneys fbr Defendants Dated: November 5, 2003 P. C. HAINES WALL & CEILING CONTRACTORS, INC., Plaintiff V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, and R. S. MOWERY & SONS, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2000 CIVIL ACTION ANSWER, NEW MATTER AND COUNTERCLAIM TO AMENDED COMPLAINT AND NOW, come the Defendants, Travelers Casualty and Surety Company of America ("Travelers"), and R. S. Mowery & Sons, Inc. ("Mowery") (hereinafter collectively "Defendants"), through their counsel, McNees Wallace & Nurick LLC, and aver as follows: Admitted upon information and belief. Admitted. Admitted. COUNT I P. C. HAINES V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA 4. Admitted in part. By way of further answer, Travelers is in the business of providing various insurance and surety products, including payment bonds, in multiple states. 5. Denied. Paragraph 5 avers a conclusion of law to which no response is required. Accordingly, the same is denied. 6. Admitted in part and denied in part. It is admitted that P. C. Haines entered into a written contract with Mowery to perform certain work as a subcontractor with respect to a project at the Carlisle Barracks, Carlisle, Pennsylvania, relating to the U. S. Army Health Clinic addition (the "Project"). By way of further answer, the contract, being a writing, speaks for itself, and accordingly Plaintiffs characterization of the terms of same are denied. By way of further answer, the subcontract incorporated additional documents by reference, and therefore it is denied that the entire contract was attached to the Complaint as Exhibit A. 7. Admitted in part and denied in part. It is admitted that the original contract amount with respect to the subcontract between Mowery and Haines was $594,000.00 to perform the work described in the subcontract documents. It is further admitted that certain written approved change orders were agreed to by the parties during the performance of the work. It is denied that additional extra work was ordered by Mowery which was performed by Haines and accepted by Mowery in the amount of $62,310.01, and it is further denied that the revised contract amount was $659,462.93. To the contrary, additional work in the amount of $3,152.92 was ordered by Mowery and performed by Haines, and was pai,cl for by Mowery. Additionally, a deduct change order was tentatively agreed to verbally by the parties in the amount of $26,316.58, due to Mowery having to engage another subcontractor as a result of, inter alia, the need to correct defective work performed by Haines. By way of further answer, the revised contract amount is undetermined, as it must be adjusted by the deduct change order, as well as a change relating to the finish on certain walls in Phase III, which was extra work ordered by Mowery and the Owner, the reasonable value of which is approximately $12,000. The contract amount should also be adjusted by selected other proposed change orders, the reasonable value of which is $4,000. By way of further answer, Mowery paid Haines a total of $566,302.92, and is entitled to withhold payment of the approximate contract balance of $20,000 because Mowery's counterclaim exceeds the contract balance. 2 8. Denied. Paragraph 8 avers a conclusion of law to which no response is required. Accordingly, the same is denied. By way of further answer, the: terms of the payment bond speak for themselves, and Plaintiff's characterization of same are denied. By way of further answer, Haines has been paid all amounts to which it is contractually entitled for all work performed. 9. 10. 11. Admitted. Admitted. Denied. Paragraph 11 avers conclusions of law to which no response is required. Accordingly, the same are denied. To the extent a response is deemed necessary, Paragraph 11 is specifically denied. It is denied that Defendant Travelers "agreed to be liable" for all costs alleged by subcontractors and material suppliers not to have beem paid by Mowery. By way of further answer, Mowery has paid Haines the full contract amount to which Haines is entitled, and has a counterclaim against Haines for additional costs incurred by Mowery. 12. Denied. Paragraph 12 avers a conclusion of law to which no response is required. Accordingly, the same is denied. To the extent a response is deemed necessary, it is specifically denied that Haines was a third party beneficiary of the bond provided by Mowery for the Project. 13. Denied. It is specifically denied that Haines completed all of the work under its base contract, and it is further denied that "approved extras" resalted in a work performed valued at $659,462.93. To the contrary, Haines failed to perform all of is work on the Project, and Mowery was required to have work performed by other subcontractors as a result of Haines' failure to perform its contract work. By way of further answer, paragraph 7 above is hereby incorporated by reference. 3 14. Admitted in part and denied in part. It is admitted that Mowery has paid Haines a total amount of $566,302.93 to date. It is denied that there is arty amount due and owing to Haines. Indeed, Mowery has suffered damages as a result of Haines' actions, which are more fully set forth in the Counterclaim below. By way of further answer, paragraph 7 above is hereby incorporated by reference. 15. Admitted in part and denied in part. It is admitted that Haines has claimed extra costs and Mowery has refused to pay the extra costs claimed by Haines. It is denied that such costs reflect a "principal balance" due, and it is further denied that Mowery has failed to make any required payments to Haines. By way of further answer, paragraph 7 above is hereby incorporated by reference. 16. Denied. Paragraph 16 avers conclusions of law to which no response is required. Accordingly, the same is denied. 17. Denied. Paragraph 17 avers a conclusion of law to which no response is required. WHEREFORE, Defendant Travelers requests judgment in its favor and against P. C. Haines. COUNT II BREACH OF CONTRACT Defendants incorporate herein by reference the responses to Paragraphs 1-17 18. above. 19. Admitted in part and denied in part. It is admitted that Haines performed work as a subcontractor to Mowery, and it is further admitted that Haines submitted Applications for Payment on a regular basis. By way of further answer, the Applications for Payment, being 4 writings, speak for themselves, and Plaintiffs characterization of same are denied. By way of further answer, paragraph 7 above is hereby incorporated by retErence. 20. Admitted in part and denied. It is admitted that Haines was asked to perform additional work as agreed to by Mowery and the Owner, for certain limited additional work items. It is denied that Mowery has wrongfully denied Haines from submitting Applications for Payment for such additional work, and it is further denied that Mowery has wrongfully refused to sign change orders. It is also denied that the additional work performed by Haines totaled $62,610.01. By way of further answer, while Haines performed limited additional work pursuant to written change orders, Haines' work was also faulty, and a deduct change order was issued in the amount of $26,316.58, after a tentative verbal agreement by the parties, which Haines ultimately refused to sign. By way of further answer, paragraph 7 above is hereby incorporated by reference. 21. Denied. Paragraph 21 is unclear, and appears to contain a typographical error, and therefore Paragraph 21 is denied. To the extent a response :is deemed necessary, it is denied that the revised contract amount between Haines and Mowery is as otherwise stated in Haines' Complaint. By way of further answer, paragraph 7 above is hereby incorporated by reference. 22. Denied. It is specifically denied that Haines pertbrmed all work and provided all labor and materials in accordance with the contract and extra work orders, and in accordance with the contract documents, in a good and workmanlike manner. To the contrary, Haines' work performed on this subcontract was faulty in many respects, and Mowery was forced to have Haines' workforce either supplemented or was forced to have repairs and corrective work performed as a result of Haines poor performance. 5 23. Admitted in part and denied in part. It is admitted that Haines submitted Applications for Payment from time to time throughout the Prqiect. It is denied that such applications were in accordance with contract documents and the "orders and directives from Mowery." To the contrary, Haines failed to submit Applications for Payment reflecting, among other things, the deduct change order agreed to by the parties. By way of further answer, paragraph 7 above is hereby incorporated by reference. 24. Admitted in part and denied in part. It is admitted that Mowery has paid Haines a total of $566,302.93 to date. It is denied that there is any balance due and owing to Haines. To the contrary, Haines' work was of poor quality, and Mowery is entitled to a counterclaim, as more fully set forth below. By way of further answer, paragraph 7 above is hereby incorporated by reference. 25. Denied. Paragraph 25 avers a conclusion of law to which no response is required. Accordingly, the same is denied. To the extent a response is deemed necessary, it is denied that Mowery refused to sign change orders for extra work it ordered, and it is further denied that Mowery breached its contract with Haines in any respect. To the contrary, to the extent Mowery ordered extra work, as a result of requests by the Owner, such extra work was paid for by Mowery. By way of farther answer, Mowery complied with the terms of its subcontract with Haines in all respects. By way of further answer, paragraph 7 above is hereby incorporated by reference. 26. Denied. Paragraph 26 avers a conclusion of law to which no response is required. Accordingly, the same is denied. To the extent a response is deemed necessary, it is denied that Mowery failed or refused to pay Haines for any work Haines performed, and it is further denied that Mowery breached its contract with Hames in any respect. To the contrary, Haines has been 6 paid for all of its work, and Mowery has complied with all of the contract terms. By way of further answer, paragraph 7 above is hereby incorporated by reference. 27. Denied. Paragraph 27 avers a conclusion of law to which no response is required. Accordingly, the same is denied. To the extent a response is deemed necessary, it is denied that Mowery breached its contract with Haines, and it is further denied that Haines has suffered any damages whatsoever as a result of any alleged breaches of contract. By way of further answer, Mowery complied with all of its contract terms, and has fully paid Haines for any work performed. By way of further answer, paragraph 7 above is hereby incorporated by reference. WHEREFORE, Defendant R. S. Mowery requests this Honorable Court to enter judgment in its favor and against PlaintiffP. C. Haines. COUNT III IN THE ALTERNATIVE: UNJUST ENRICHMENT P. C. HAINES V. IL S. MOWERY & SONS~ IN(~ 28. Paragraphs 1-27 above are hereby incorporated by reference. 29. Denied. It is denied that the value of the labor and materials provided by Haines on the project for which Mowery has allegedly not yet paid Haines is $62,310.01, and it is further denied that Mowery ordered any work which was "outside the scope" of Haines' contract work for which is has not already paid. To the contrary, Mower:? simply required Haines to conform with the terms of its subcontract, which Haines failed to do in several respects, thus resulting in corrective work required to be performed. By way of further answer, Haines has beenpaidin full for thevalue of labor and materials that it provided on the Project. Bywayof further answer, paragraph 7 above is hereby incorporated by reference. 7 30. Denied. Paragraph 30 avers conclusions of law 1:o which no response is required. By way of further answer, the term "prices" is undefined in Paragraph 30, and thus Mowery is unable to respond to the averments of Paragraph because it is w~gue and unclear. By way of further answer, the amounts that Mowery agreed to pay Haines for the full amount of subcontract work is set forth in the subcontract documents. The limited extra work orders were specifically agreed to by the parties, as was the deduct change order. By way of further answer, Mowery is without sufficient information as to what "prices" are normally charged by P. C. Haines to respond to the remaining averments of Paragraph 30. Accordingly, the same are denied. By way of further answer, paragraph 7 above is hereby incorporated by reference. 31. Denied. It is specifically denied that Haines provided "extra labor and materials" on the Project for which it has not been paid. It is further denied that Mowery has received payment from the Owner and has not paid Haines any money that Haines is entitled to under its subcontract with Mowery. By way of further answer, Paragraph7 above is hereby incorporated by reference. 32. Denied. It is specifically denied that Haines provided "extra labor and materials" for which it has not been paid. It is also denied that Mowery has been unjustly enriched in the amount of $62,310.01. To the contrary, Haines has been paid fi)r all of the contract work performed, and there has been no "enrichment" of any sort to Mowery. By way of further answer, paragraph 7 above is hereby incorporated by reference. 33. Denied. Paragraph 33 avers a conclusion of law to which no response is required. Accordingly, the same is denied. To the extent a response is deemed necessary, it is denied that it would be "unjust" to permit Mowery to retain the benefit of labor, without purportedly paying 8 for same. Indeed, Mowery has paid Haines for all of the labor and materials provided in the Project. By way of further answer, paragraph 7 above is hereby incorporated by reference. 34. Denied. Paragraph 34 avers a conclusion of law to which no response is required. Accordingly, the same is denied. To the extent a response is deemed necessary, it is denied that "injustice can only be avoided by enforcement of the agreement: between Haines and Mowery." Indeed, it is denied that any "injustice" exists, except as it relates to the counterclaim of Mowery as set forth below as a result of Haines' defective work. By way of further answer, paragraph 7 above is hereby incorporated by reference. WHEREFORE, Defendant R. S. Mowery requests this Honorable Court to enter judgment in its favor and against Plaintiff P. C. Haines. NEW MATTER 35. Haines' claims are barred due to its own breaches of contract, as more fully set forth in Mower~fs counterclaim versus Haines below, which is hereby incorporated by reference in its entirety. 36. Haines' claims are barred by Mowery's right of set-off, as more fully described in Mowery's Counterclaim below, which is hereby incorporated by reference. 37. Haines' claims are barred because it has been paid in full for the work for which it is contractually entitled to be paid. 38. Haines' claims are barred to the extent Haines did not follow the subcontract procedures for changes to the work and the submission of claims for same. 39. Haines' claims for extra work are barred to the extent such claims exceed the reasonable value of tho alleged extra work performed. 9 40. Count III of Haines' Complaint is barred because Haines has pleaded the existence ora contract, and thus no claim of unjust enrichment exists. 41. Haines' Complaint fails to state a cause of action for which relief can be granted. COUNTERCLAIM R. S. MOWERY v. P. C. HAINES BREACH OF CONTRACT The original subcontract amount between Mowery and P. C. Haines was 42. $594,000. 43. Throughout the course of the contract, signed written change orders in the amount of $3,152.92 were agreed to by the parties through Change Orders 1, 2 and 4, resulting in a revised contract amount o f $597,152.92. 44. At a meeting held between representatives of Mowery and Haines to discuss proposed Change Order 3, a tentative agreement was reached on the amount ora deduct change order which would be issued as a result of Haines' defective work, and Mowery's requirement to engage another subcontwactor to supplement Haines' workfome, and to correct Haines' defective work. 45. At the meeting between Mowery and Haines to discuss the deduct change order, Haines admitted that some of its work was faulty, and that it was proper for Mowery to supplement Haines' wotkfome and backcharge Haines for appropriate amounts. 46. Notwithstanding the tentative agreement between Mowery and Haines as to the approximate cost of the deduct change order, Haines refused to sign Change Order No. 3 when it was issued. 10 47. The fair and reasonable value of the deduct change order, as reflected in proposed Change Order No. 3, was $26,316.58, which amount included, inter alia, paying Haines for certain limited additional work. 48. In Phase III, the owner issued an extra work directive to Mowery relating to the finishes in certain rooms, and Mowery requested that Haines perform this extra work. The fair market value of this extra work was $12,000, and Mowery was paid that amount by the Owner for said extra work. 49. In Phase III, Haines submitted several proposed small change orders for alleged extra work performed. While no agreement was reached as to the specific amounts of the extra work performed, Mowery believes, and therefore avers, that the fair market value of extra work performed for which proposed change orders were submitted by Haines is approximately $4,000. 50. Accordingly, the revised contract amount betwe~m Mowery and Haines, including the approved change orders, the deduct change order which was tentatively approved, and the proposed change orders for extra work which have not been formally agreed to by the parties, is approximately $586,000. 51. To date, Mowery has paid Haines the sum of $566,302.92, leaving an unpaid contract balance of approximately $20,000. 52. Throughout the Project, Haines failed to comply with its subcontract obligations in numerous respects, including, but not limited to: (1) constantly failing to man the job approphately to allow its work to be completed in a timely and workmanlike fhshion; (2) performing faulty work which was below the standards required by the subcontract; 11 (3) damaging existing work; and (4) failing to perform its work promptly, and in accordance with Project schedules. 53. As a result of Haines' breaches of contract described above, Mowery was forced to take steps to supplement Haines' workforce, and to correct faulty work performed by Haines. 54. As a result of Haines' breaches of contract described above, the Project was delayed significantly, and Mowery believes, and therefore avers, that Haines was responsible for delaying the overall Project completion by approximately ten weeks. 55. As a result of delays to the Project caused by Haines, Mowery suffered significant additional costs, including, inter alia, extended general conditions of approximately $40,000. 56. Mowery is entitled to withhold any alleged contract balance due and owing to Haines because its cmmterclaims against Haines far exceed any alleged balance due and owing to Haines. 57. Accordingly, Mowery is entitled to extra costs in excess of $20,000as a result Haines' breaches of contract. 12 WHEREFORE, R. S. Mowery respectfully requests judlgnent in its favor, and against P. C. Haines, in an mount in excess of $20,000. Respectfully submitted, McNEES WALLACE & NURICK LLC By Attorney I.D. No. 47245 I00 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys fi>r Defendants Dated: November 5, 2003 13 VERIFICATION Subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities, I hereby certify that I am John F. Anthony, Project Manager, R. S. Mowery & Sons, Inc., and that the facts set forth in the foregoing Complaint are true and correct to the best of my information and belief. Dated: (] JohnF. Anthe~y )~ CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this 5th day of November, 2003, a tree and correct copy of the foregoing document was served by U.S. Mail, first-class, postage prepaid upon the following: Thomas O. Williams, Esquire REAGER & ADLER, P. (2. 2331 Market Street Camp Hill, PA 17011 ~'~ ~JJa~!s~. Kutz 14 P.C. HAINES WALL & CEILING CONTRACTORS, INC., Plaintiff TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, and R.S. MOWERY & SONS, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2000 CIVIL ACTION NOTICE TO PLEAD To: Travelers Casualty and Surety Company of America and R.S. Mowery & Sons, Inc. c/o James W. Kutz, Esquire McNees, Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PLAINTIFF'S REPLY TO NEW MATTER AND ANSWER TO COUNTERCLAIM WITH NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully~miJt~l, REAGER ~/ADI~RJ P.C'~ Attorney I.D. No. 16267 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Attorneys for Plaintiff P.C. HAINES WALL & CEILING CONTRACTORS, INC., Plaintiff V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, and R.S. MOWERY & SONS, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2000 C1VIL ACTION PLAINTIFF'S REPLY TO NEW MATTER AND ANSWER TO COUNTERCLAIM WITH NEW MATTER 35. Denied. The averments of paragraph 35 constitute conclusions of law to which no responsive pleading is required. 36. Denied. The averments of paragraph 36 constitute conclusions of law to which no responsive pleading is required. 37. Denied. It is specifically denied that Mowery has paid Haines all monies due under the contract. By way of further response, Haines incorporates herein by reference its Complaint. 38. Denied. The averments of paragraph 38 constitute conclusions of law to which no responsive pleading is required. By way of further response, Haines followed all procedures under the subcontract. 39. Denied. It is specifically denied that the extra work performed by Haines does not have the value set forth in Haines' Complaint. On the contrary, the value of the work is in keeping with the actual value of the work performed. 40. Denied. The averments of paragraph 40 constitute conclusions of law to which no responsive pleading is required. 41. Denied. The averments of paragraph 41 constitute conclusions of law to which no responsive pleading is required. PLAINTIFF'S ANSWER TO COUNTERCLAIM 42. Admitted. 43. Admitted. It is admitted that the parties signed three (3) written change orders with a total value of $3,152.92. By way of further answer the Defendant ordered the Plaintiff to perform additional work which work was performed and accepted which had additional value of $62,310.01 for which Defendant has failed and refused to pay. 44. Admitted in part; denied in part. It is admitted only that a meeting was held between representatives of Mowery and Haines to discuss proposed Change Order #3. It is specifically denied that any agreement was reached on the amount of the deduct change order inasmuch as Haines never agreed to any deduction as Haines did not perform any defective work and did not damage work of any other contractors. By way of further response, at the conclusion of the meeting, Mowery indicated that it would come back to Haines with a dollar amount which it would agree to pay Haines. 45. Admitted in part; denied in part. It is again admitted that there was a meeting between Mowery and Haines to discuss Change Order 3. Any characterization that this Change Order was agreed by Haines to be a deduct change order is denied. By way of further answer it is denied that Haines admitted to performing faulty work. It is further denied that Haines performed any faulty work. On the contrary Haines performed all of its work in a workmanlike manner and as promptly as job conditions would permit. 46. Admitted in part; denied in part. It is admitted that Haines has refused to sign Change Order 3. It is denied that there was any agreement by Haines that Change Order 3 be a deduct change order inasmuch as Haines never agreed to a deduction in payments for alleged 2 faulty work. By way of further answer Haines performed all of its work in a workmanlike manner and as promptly as project conditions would permit. 47. Denied. It is denied that a fair and reasonable value of Change Order 3 was a deduction of $26,316.58. By way of further answer it is not reasonable that any deduction be taken from Haines. By way of further response proposed Change Order 3 substantially undervalued the amount of Haines' extra work which was ordered by Mowery and accepted by Mowery. 48. Admitted in part; denied in part. It is admitted that in Phase 3 the owner of the Project directed Mowery to perform certain extra work in certain rooms and that Mowery in turn requested that Haines perform this extra work. It is denied that the fair market value of this extra work was $12,000.00. By way of further response, the extra work performed by Haines had a value of $29,061.44. By way of further answer, Mowery signed Haines' time and material tickets which evidence the extra work performed by Haines' and Haines subsequently submitted invoices for the extra work which was authorized, ordered and accepted by Mowery, which Mowery has wrongfully failed and refused to pay. 49. Admitted in part; denied in part. It is admitted that Haines submitted several proposed change orders for extra work ordered by Mowery which was performed by Haines. It is specifically denied that the value of this extra work was $4,000.00. By way of further answer the actual value of the work is $11,494.40 as reflected in the invoices submitted by Haines. By way of further answer the invoices reflect the work performed in the signed time and material tickets as authorized by Mowery. 50. Denied. It is specifically denied that the proper value of the revised contract between the parties is $586,000.00. By way of further response, Haines incorporates herein by 3 reference its Complaint, specifically paragraph 7. The proper value for the revised contract between the parties is $659,462.93. 51. Admitted in part; denied in part. It is admitted that Mowery has paid Haines a total sum of $566,302.92. It is specifically denied that there is an unpaid balance of $20,000.00. By way of further answer Haines incorporates herein by reference it's Complaint filed in this matter, specifically paragraphs 7, 13 and 14. 52. Denied. It is specifically denied that Haines failed to comply with its subcontract obligations. On the contrary performed all of its work under the contract including extra work ordered by Mowery in a good and workmanlike manner and as promptly as Project conditions permitted. (1): Denied. It is specifically denied that Haines failed to properly man the job. By way of further answer by the actions and in actions of Mowery in failing to enforce the schedule and to properly coordinate the subcontractors under its control Haines was denied access to its work in a timely manner which caused serious delays in Haines' ability to perform its work. Any and all delays in the completion of the Project were caused by Mowery and contractors other than Haines. (2): Denied. It is specifically denied that Haines performed any of its work in a faulty manner. On the contrary, Haines performed all work in a good and workmanlike manner and consistent with all industry and subcontract standards. (3): Denied. It is specifically denied that Haines damaged any existing work. On the contrary it was Mowery and other contractors that damaged existing work causing extra work to be performed by Haines and others. 4 (4): Denied. It is specifically denied that Haines failed to promptly perform its work in accordance with project schedules. By way of further response Mowery knowingly permitted predecessor contractors to perform work in a manner inconsistent with the approved project schedules which forced Haines to suffer from untimely access to its work. Mowery's continued failure to properly enforce the schedule and coordinate the work of the contractors under its control denied Haines timely access to its work. By way of further answer, Haines performed its work as promptly as Project conditions permitted. Haines provided Mowery with written notice of its lack of access and delays to its work. 53. Denied. The averments of paragraph 53 constitute conclusions of law to which no responsive pleading is required. To the extent an answer is judicially deemed required Haines denies each and every factual averment. 54. Denied. The averments of paragraph 54 constitute conclusions of law to which no responsive pleading is required. By way of further answer Haines was not responsible for any delays on the Project. On the contrary, Mowery, by and through its actions and inactions and failure to properly enforce the schedule and coordinate the work of the contractors caused the delays on the Project, and specifically caused Haines to suffer from lack of access to its work in a timely manner. 55. Denied. It is specifically denied that Haines was the cause of any delays on the Project. It is further denied that Mowery suffered any damages on the Project. By way of further response, to the extent that Mowery suffered any damages on the Project it was due to its own actions or inactions and not by the actions or inactions of Haines. 5 56. Denied. The averments of paragraph 56 constitute conclusions of law to which no responsive pleading is required. By way of further answer Haines incorporates herein by reference its Complaint filed in this action. 57. Denied. The averments of paragraph 57 conclusions of law to which no responsive pleading is required. By way of further answer it is specifically denied that Mowery is entitled to any extra costs. By way of further answer, Haines incorporates herein by reference its Complaint filed in this action as if set forth fully herein. WHEREFORE, Plaintiff, P.C. Haines Wall and Ceiling Contractors, Inc. respectfully requests this Honorable Court to dismiss the Countemlaim ofR.S. Mowery Sons, Inc. with prejudice and costs. PLAINTIFF'S NEW MATTER TO DEFENDANT~ ILS. MOWERY & SONS~ INC.'S COUNTERCLAIM 58. Plaintiff incorporates herein by reference the averments contained in its Complaint and paragraphs 1 through 57 as if set forth fully. 59. Defendant failed to properly manage the Project and failed to provide a qualified superintendent on thc Project throughout the Project. Defendant's Counterclaim fails to state a cause of action upon which relief may 60. be granted. 61. 62. Defendant's Counterclaim is barred due to Defendant's breach of the contract. To the extent that the Defendant suffered any damages, which damages are specifically denied, any and all such damages were incurred as a result of the actions or inactions of the Defendant or the Defendant's representatives, agents or subcontractors other than the Plaintiff. 63. damages. 64. Defendant's Counterclaim is barred due to its failure to mitigate its alleged Any and all damages or costs alleged to have been incurred by the Defendant relating to damaged existing work was caused by the Defendant and contractors other than the Plaintiff. 65. The Plaintiff performed its work as quickly as practicable given the circumstances of delays, disruptions and out of sequence work caused by Defendant and/or the Defendants other subcontractors. The Plaintiff was not responsible for delaying the overall completion of the 66. Project. 67. The Defendant failed to properly manage and coordinate the work of the contractors under its control on the Project to ensure timely access and completion of the work by the Plaintiff in accordance with project schedules. 68. Defendant's claims are barred due to the doctrines of waiver and estoppel. 69. Defendant ordered Plaintiff to perform repair work of Plaintiff's completed work and the work of the painter for damages caused by other contractors and has refused to pay for same. 70. Defendant failed to enforce the project schedule and to perform work in accordance with the schedule which caused, among other things, out of sequence work, delays to Plaintiff's work, and damage to Plaintiff' s work by other contractors. 71. Defendant unreasonably and without justification failed to pay the Plaintiff for work performed by the Plaintiff which was acknowledged by the Defendant to be outside the scope of the Plaintiff' s original contract work. 7 72. The Plaintiff properly submitted time and material slips which were signed by Defendant's authorized superintendent for extra work ordered by Defendant and subsequently submitted invoices for this extra work but Defendant has failed and refused to pay for the work. WHEREFORE, Plaintiff, P.C. Haines Wall and Ceiling Contractors, Inc. respectfully requests this Honorable Court to dismiss Defendant, R.S. Mowery & Sons, Inc.'s Counterclaim with prejudice and costs. t~re Attorney I.D. No. 16267 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiff 8 CERTIFICATE OF SERVICE AND NOW, this ~'-~day of November, 2003, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. mail, first class, certified, postage prepaid and addressed as follows: James W. Kutz, Esquire McNees, Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 THOi~fit%~O~. WILLIAMS, ESQUIRE VIRII~ICA'IION I, Paul I-IaineS, hereby vexify that I ~xn the prosident of P.C. Haines Wall & cdlitlg ConlraO:or~, Inc. and, aa such, I am authorize~d to verify tho avcrmon~ of thc foregoing do~um,:at arc tree and oorr~t to my pel~onal knowledge, information and belief. I unders~d That false statements hcrt~ a~e made s~bje0t 1o the penalties of 15 Pa. C.$. §4904, relating to u~swom falsifioation to autho,.,iiie$. i.d £~LI-868-L[L inwd ~I~:II ~0 9~ ~o~ P.C. HAINES WALL & CEILING CONTRACTORS, INC., Plaintiff V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, and R.S. MOWERY & SONS, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2000 CIVIL ACTION PRAECIPE TO REPLACE VERIFICATION TO .PLAINTIFF~ P.C. HAINES WALL & CEILING CONTRACTORS~ INC2:; REPLY TO NEW MAI'I'ER AND ANSWER TO COUNTERCLAIM WITH NEW MATTER TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please replace Plaintiff, P.C. Haines Wall & Ceiling Contractors, In ' ' c. s previously flied verification with the verification attached hereto at Attachment "A". Date: December 2, 2003 Respectfully submitted, REAGER & 3/,DLF~.C' /~/~ Thomas O. Williams, Esquire Attorney I.D. No. 67987 Theodore A. Adler, Esquire Attorney I.D. No. 16267 2331 Market Street Camp Hill, PA 17011-4642 Telephone: (717) 763-1383 Attorneys for Defendants -- 11/21/2003 16:07 FAX 717 730 7306 REAG~R & AI)L~R ~011 I, Paul Haines, hereby verify that ! am thc Prcsideat of P.C. Haines Wall & Ceiling ContraCtors, Inc. and, as such, I am authorized to verify the averments of thc foregoing docttm,: at arc true and corrcot to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S, ~4904, relating to unswo~n falsification to authorities. ?sul'l~sines / - - CERTIFICATE OF SERVICE AND NOW, this 2nd day of December, 2003, I hereby verify that I have caused a true and correct copy of the foregoing Praecipe to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: James W. Kutz, Esquire McNees, Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 ThoC~s O Wdhams, Esq ' P. C. HAINES WALL & CE1LING CONTRACTORS, INC., Plaintiff TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, and R. S. MOWERY & SONS, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2000 CiVIL ACTION REPLY OF DEFENDANT R. S. MOWERY & SONS, INC. TO PLAINTIFF'S NEW MATTER TO COUNTERCLAIM AND NOW, come the Defendants, Travelers Casualty and Surety Company of America ("Travelers"), and R. S. Mowery & Sons, Inc. ("Mowery") (hereinafter collectively "Defendants"), through their counsel, McNees Wallace & Nufick LLC, and aver as follows. Reply of Defendant R. S. Mowery to Plaintiff's New Matter to Counterclaim 58. Defendant R. S. Mowery hereby incorporates by reference the averments contained in its Answer, New Matter and Counterclaim in paragraphs 1-57 as though fully set forth. 59. Denied. It is specifically denied that Defendant failed to properly manage the project and/or failed to provide a qualified superintendent on the project throughout the project. To the contrary, Mowery properly managed the project at all times, and had a qualified superintendent on the project at all times. 60. Denied. Paragraph 60 avers a conclusion of law to which no response is required. Accordingly, the same is denied. To the extent a response is deemed necessary, it is specifically denied that Mowery% Counterclaim failed to state a cause of action for which relief can be granted. By way of further answer, Mowery's counterclaim is hereby incorporated by reference as if fully set forth. 61. Denied. Paragraph 61 avers a conclusion of law to which no response is required. Accordingly, the same is denied. To the extent a response is deemed necessary, it is specifically denied that Defendant Mowery's Counterclaim is barred due to Mowery's alleged breaches of contract. To the contrary, Mowery has not breached its contract. By way of further answer, Paragraphs 1-57of Defendants' Answer, New Matter and Counterclaim are hereby incorporated by reference. 62. Denied. It is denied that any alleged damages of Mowery were incurred as a result of inactions or actions of Mowery or its representatives, agents or subcontractors. To the contrary, Mowery's damages alleged in its counterclaim were as a result of the actions ofP. C. Haines. By way of further answer, Paragraphs 1-57 of Defendants' Answer, New Matter and Counterclaim are hereby incorporated by reference. 63. Denied. Paragraph 63 avers a conclusion of law to which no response is required. Accordingly, the same is denied. To the extent a response is deemed necessary, it is specifically denied that Mowery's counterclaim is barred due to any alleged failure to mitigate damages. To the contrary, Mowery took all necessary steps to mitigate its damages. By way of further answer, Paragraphs 1-57 of Defendants' Answer, New Matter and Counterclaim are incorporated by reference. 64. Denied. It is specifically denied that the cost which Mowery incurred relating to damaged existing work were either caused by Mowery or contractors other than Plaintiff. By way of further answer, Defendants' Answer, New Matter and Counterclaim are incorporated by reference. 65. Denied. It is specifically denied that Plaintiff performed its work "as quickly as practicable," at any time on the project. It is further denied that Defendant Mowery and/or other subcontractors caused any delays, disruptions or out of sequence work for P. C. Haines. By way of further answer, Paragraphs 1-57 of Defendants' Answer, New Matter and Counterclaim are incorporated by reference. 66. Denied. It is specifically denied that Plaintiff was not responsible for delaying the overall completion of the project. To the contrary, as alleged in Mowery's Answer, New Matter and Counterclaim, which is hereby incorporated by reference in its entirety, Plaintiff was responsible for some delays to the overall project completion. 67. Denied. It is specifically denied that Defendant Mowery failed to properly manage or coordinate the work with contractors under its control on the project, and it is further denied that Mowery failed to insure timely access to any of Plaintiff"s work in accordance with the project schedules. By way of further answer, Defendants' Answer, New Matter and Counterclaim are incorporated by reference in their entirety. 68. Denied. Paragraph 68 avers a conclusion of law to which no response is required. Accordingly, the same is denied. By way of further answer, Paragraphs 1-57 of Defendants' Answer, New Matter and Counterclaim are incorporated by reference. 69. Denied. It is specifically denied that Mowery ordered Plaintiff to perform repair work of Plaintiffs completed work and the work of the painter for damages caused by other contractors for which Mowery has refused to pay. By way of further answer, Paragraphs 1-57 of Defendant's Answer, New Matter and Counterclaim are incorporated by reference in their entirety. 70. Denied. It is specifically denied that Defendant Mowery "failed to enforce the project schedule," and it is further denied that Mowery failed to perform work in accordance with its schedule. It is also denied that any actions of Mowery caused any delays to Plaintiff's work, or caused Plaintiff to work out of sequence. It is further denied that any actions of Mowery caused damage to Plaintiffs work by other contractors. By way of further answer, Defendant's Answer, New Matter and Counterclaim are hereby incorporated by reference in their entirety. 71. Denied. Paragraph 71 avers a conclusion of law to which no response is required. Accordingly, the same is denied. To the extent a response is deemed necessary, the averments of Paragraph 71 are specifically denied. By way of further answer, it is denied that Mowery unreasonably and without justification failed to pay Plaintiff for any work performed. It is further denied that Mowery has allegedly failed to pay Plaintiff for any work which was outside the scope of Plaintiffs original contract work. To the contrary, Mowery has paid Defendant more money than to which it is entitled. By way of further answer, Defendant's Answer, New Matter and Counterclaim are hereby incorporated by reference in their entirety. 72. Denied. It is specifically denied that Plaintiff "properly submitted time and material slips" which were signed by Mowery's authorized superintendent for alleged extra work ordered by Defendant. It is further denied that Defendant performed any alleged extra work for which it has not already been paid. By way of further answer, Defendant's Answer, New Matter and Counterclaim are incorporated by reference in their entirety. WHEREFORE, Defendant R. S. Mowery hereby respectfully requests that this Honorable Court dismiss all claims ofP. C. Haines Wall and Ceiling Contractors, grant 4 judgment on Mowery's counterclaim, and grant Mowery interest and costs as requested in its counterclaim. Respectfully submitted, McNEES WALLACE & NURICK LLC By James W~. ~utz, Esquire Attorney I.D. No. 47245 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants Dated: December 30, 2003 VERIFICATION Subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities, I hereby certify that I am Donald H. Mowery, President, R. S. Mowery & Sons, Inc., and that the facts set forth in the foregoing document are tree and conrect to the best of my information and belief. Dated: Donald I~I. CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this 30th day of December, 2003, a true and correct copy of the foregoing document was served by U.S. Mail, first-class, postage prepaid upon the following: Thomas O. Williams, Esquire REAGER & ADLER, P. C. 2331 Market Street Camp Hill, PA 17011 Kutz P.C. HAINES WALL & CEILING CONTRACTORS, INC., Plaintiff V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, and R.S. MOWERY & SONS, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-2000 CIVIL ACTION pRAECIPE TO DISCONTINUI.~ TO THE PROTHONOTARY: · · ,---,:~ o~,unterclaim as settled and Please mark the above-captioned lawsmt ~ncmm,~ ~,~ discontinued with prejudice. Respectfu . i Thomag O. Williams, Esquire Attorney I.D. No. 67987 REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011-464 Telephone:: (717) 763-1383 Attorney for Plaintiff Attorney ll.D. No. 47245 McNees, 'Wallace & Nurick, LLC 100 Pine :Street P.O. Box 1166 Harrisburg, PA 17108-1166 Telephone: (717) 237-5441 Attorneys for Defendants