HomeMy WebLinkAbout03-5292SLOUG~ FLOORING, INC.
10 South 24th Street
Harrisburg, PA 17103-2099
IN THE COURT OF COJ,~40N Pt. EAS
COUNTY, PENNSYLVANIA.
Civil Action -~X) La~
( ) Equity
FIDk'Tr,TTY ~ DEi~IT
300 Saint Paul Place
: P.O. Box 1227
: Ba!timor~, I~ 21202
versus
Plaintiff(s).&
Address(es)
Defendant(s) &
Address(es)
· PRAECIPE FOR WRIT OF S~S
TO THE PROTHONOTARY OF SAiD COURT:
Please issue writ of summons
X Writ of Summons snail
John G. Milakovic, Esquire
Beckley & Mack~en
212 N. 3rd St., P.O. Box 11998
Harrisb~q. PA 17~108-1998
(717) 233-7691
Names/A0dress/ Telephon No.
of Attorney
in the above-captioned action.
be issued and forwarded to (x)ATtorney (
Si/a~ure of Attorney
Supreme Court ID No. 34843
Date: / /3l 3
)Sheriff
WRIT OF SUI~ONS
TO THE ABOVE NAMED DEFENDANT(S):
YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S)
ACTION AGAINST YOU.
HAS/HAVE COMMENCED AN
Prothonotary
(_ Deputy
( ) Check here if reverse is issued for additional information
~ROTHON. - 55
SLOUGH FLOORING, 1NC.,
Plaintiff
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION-LAW
:
: NO. 03-5292 CIVIL TERM
AFFIDAVIT OF SERVICE OF WRIT OF SUMMONS
I, John G. Milakovic, Esquire, being duly sworn according to law, do depose and say:
1. On October 8, 2003, I mailed the writ of summons to Defendant, Fidelity and Deposit
Company of Maryland, by certified mail, to its office located at 300 Saint Paul Place, P.O. Box
1227, Baltimore, Maryland 21202. A true and correct copy e, fwhat I mailed is hereto attached
marked as Exhibit "A."
2. The return receipt for the certified mail shows th.at the mail was delivered at the
aforesaid address on October 14, 2003, and signed for by someone whose signature is illegible.
A true and correct copy of the aforesaid return receipt is hereto attached marked as Exhibit "B."
I swear that the foregoing is true and correct.
Sworn and subscribed before me
This/~ ~ day of October, 2003.
/16'hn G. Milakovic
Notary
NOTARIAL SEAL
GERALDINE d. SCRBACIC, Notary Public
City of Harrisburg, Dauphin County
My Commission Exp res Nov, 20, 2006
Fidelity and Deposit Company
Of Maryland
300 Saint Paul Place
P.O. Box 1227
Baltimore, MD 21202
October 8, 2003
CERTIFIED MAIL
51834
Re: Slough Flooring~ Inc. v. Fidelity and Deposit~ No. 03-5292 (Cumberland Co.~ Pa)
Dear Sirs:
Enclosed for service upon you is a writ of summons~.
Very truly yours,
B
ECKLEY & MADDEN
/Jolm G. Milakovic
SLOUGH FLOORING, INC.
10 South 24th Street
Harrisburg, PA 17103-2099
Plaintiff(s) &
Address(es)
IN THE COURT OF COte, ION PLEAS
~ COUNTY, PENNSYLVANIA .
( ) Equ;?y
: 300 Saint Paul Place
: P,O. Box ~L227
: Ba!timor¢, MD 21202
TRUE OOPY FROM RECOI
'PRAECIPE FOR WRIT OF SUI~v,O~...S
TO THE PROTHONOTARY OF SAID COURT:
Defendant(s)
Address(eR
Z
Please [ssue writ of summons in the above-captioned action. .~
x Wr)-~ of Summons snail be issued and forwarded to (X)Attorney )3~eriT"f
212 N. 3rd St.~ P.O. ~ 11998
H~isb~, PA 17108-1998 5~ture of Attorney
(717) 233-7691 Supreme Cour~ ID No. 34843
Names/Address/ 7elephon NO. -,,
WRIT ~
TO THE ABOVE NAMED DEFENDANT(S):
YOU ARE NOTIF;ED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE C~HENCED AN
ACTION AGAINST YOU.
) Check here if reverse is issued for
4D
information
· Complete items 1, 2, and 3. Also complete
item 4 if Restricted DeliVery is desired.
· Print your name and address on the reverse
so that we can return the card to you.
· Attach this card to the back of the mailpiece,
or on the front if space permits.
1. ,~ticle Addressed to:
2. Article Number
(Transfer from service label)
PS Form 3811, March 2001
[] Agent
[] Addressee '
D. Is beliv~ [Tom item 1 ? r-i Yes
If YES, enter delivery address below: [] NO
3. Se ' eType
' I~Cer~ifled Maii [] Express Mail
/ [] Regi~stered r-i Return Receipt for Merchandise
~.red Mail [] C.O.D.
I~ Restricted Delivery? (Extra Fee) i--I Yes
7001 2510 0002 2637 7720
Domestic Return Receipt
102595-01 -M-1424
1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
JOHN CHEST,
Plaintiff,
VS.
AMERICAN HONDA COMPANY,
LOWE'S COMPANIES, 1NC., and BRIGGS
& STRATTON,
Defendants.
)
)
)
)
) No. 03-5291 Civil
)
)
)
)
)
)
PROOF OF SERVICE
TO: Curtis R. Long, Prothonotary
The undersigned, Clem C. Trischler, Esquire, of Pietragallo, Bosick & Gordon, hereby
certifies that the Rule issued by the Prothonotary of the Court of Common Pleas of Cumberland
County, Pennsylvania, was duly served upon counsel for the plaintiff, Lawrence J. Rosen,
Esquire, by United States Certified Mail, Return Receipt Requested, postage prepaid on
November 10, 2003. Attached hereto and marked as Exhibit "A" is a tree and correct copy of
the Return Receipt evidencing delivery of the Rule.
Respectfully submitted,
PIETRAGALLO, BOSICK & GORDON
By:
Clem C. Trischler, Esquire p c...-
Patrick J. Doheny, Esquire
The Thirty-Eighth Floor
One Oxford Center
Pittsburgh, PA 15219
(412) 263-2000
Attorneys for Defendant, American Honda
Motor Co., Inc.
SLOUGH FLOORING, INC.,
Plaintiff
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,
Defendant
: 1N THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION-LAW
:
: NO. 03-5292 CIVIL TERM
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
TIlE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
(800) 990-9108
SLOUGH FLOORING, INC.,
Plaintiff
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION-LAW
:
: NO. 03-5292 CIVIL TERM
COMPLAINT
AND NOW comes Slough Flooring, Inc. ("Slough"), by and through its attomeys,
Thomas A. Beckley, Esquire, John G. Milakovic, Esquire, and Beckley & Madden, of counsel,
and files this Complaint, averring as follows:
1. Plaintiff is Slough, a corporation organized and existing m~der the laws of the
Commonwealth of Pennsylvania, with offices located at 10 South 24th Street, Harrisburg,
Pennsylvania.
2. Defendant is Fidelity and Deposit Company of Maryland ("Fidelity"), a corporation
organized and existing under the laws of the State of Maryland, with offices located at 300 Saint
Paul Place, Baltimore, Maryland.
3. This case arises out of a construction project for alterations to the Lemoyne Middle
School of the West Shore School District located in Cumberland County, Pennsylvania. A prime
contractor on said project was Kamand Construction, Inc. ("Kamand"). In connection with its
contract, Kamand procured from Fidelity a labor and materials payment bond, a tree and correct
copy of which is hereto attached marked as Exhibit "A."
4. By a subcontract dated March 23, 2001, Slough and Kamand agreed, in writing, that
Slough would perform flooring work for Kamand on the aforesaid project, in return for which
Kamand agreed to pay Slough the sum of $40,000.00. A true and correct copy of the aforesaid
subcontract is hereto attached marked as Exhibit "B."
5. Kamand and Slough executed two separate change orders to the aforesaid
subcontract, as a result of which the subcontract sum was changed to $30,311.00. True and
correct copies of the aforesaid change orders are hereto attached marked collectively as Exhibit
6. Slough finished its work during the week of October 27, 2002. As of that time,
Slough had satisfied all conditions precedent and had otherwise performed all obligations on its
part to be performed.
I. COUNT ONE--ACTION ON PAYMENT BOND
7. The averments of Paragraphs 1 through 6 of this Complaint are hereby adopted by
reference and incorporated herein.
8. Slough billed the entire adjusted subcontract price by December 10, 2002, the date of
its last payment application to Kamand. To date, however, Slough has been paid only the sum of
$24,804.90, leaving a principal balance due and owing of $5,506.10.
9. Despite demand therefor, Fidelity has failed mad refused to pay the balance owing.
10. The mount demanded does not exceed the maximum requiring submission to
compulsory arbitration.
WHEREFORE, Slough demands judgment in its favor and against Fidelity, in the
principal amount of $5,506.10, plus interest from December 10, 2002, plus costs of suit.
2
II. COUNT TWO-~ACTION FOR BREACH OF BOND TERMS
11. The averments of Paragraphs 1 through 10 of this Complaint are hereby adopted by
reference and incorporated herein.
12. Paragraph 4.1 of the payment bond provides that parties, such as Slough, who have a
direct contract with the contractor (Kamand) are to provide written notice of a claim under the
bond to Fidelity and to the West Shore School District. By letter dated September 29, 2003,
Slough provided the notice required by Paragraph 4.1 of the bond. A true and correct copy o£the
aforesaid notice letter, with copies of the "green card" receipts showing delivery thereof upon the
West Shore School District (on September 30, 2003) and upon Fidelity (on October 14, 2003), is
hereto attached marked as Exhibit "D."
13. Paragraph 6 of the payment bond provides as follows:
6. When the Claimant has satisfied the conditions of Paragraph 4, the Surety
shall promptly and at the Surety's expense take the following actions:
6.1. Send an answer to the Claimant, with a copy to the Owner, within 45 days
after receipt of the claim, stating the amounts that are undisputed and the basis for
challenging any amounts that are disputed.
6.2. Pay or arrange for payment of any undisputed amounts.
14. Fidelity's 45-day period to take the action described in Paragraph 6 of the bond
expired on November 28, 2003. As of that date, Fidelity had neither sent a letter to Slough
stating undisputed amounts or the basis for challenging any amounts in dispute, or paying any
undisputed amounts.
15. Fidelity's failure to comply with Paragraph 6 of the bond, as a matter of law,
constitutes a breach of the terms of the bond and a waiver of Fidelity's right to contest any
amounts as disputed.
3
WHEREFORE, Slough demands judgment in its favor and against Fidelity, in the
principal amount of $5,506.10, plus interest from December 10, 2002, plus costs of suit.
Of Counsel
Beckley & Madden
212 North Third Street
P.O. Box 11998
Harrisburg, PA 17108
(717) 233-7691
Respectfully submitted,
Thomas A. Beckley
J~O.M~lakovic
Attorneys for Slough
4
VERIFICATION
1. David R. Keile~, hc~cby v~ify ~ l am an adu[t indlvk[u~; ~1~ I ~ authorized ~
~e ~s v~fi~fion in ~lf of Slo~ Floo~, Inc.; and '~t ~e f~ ~t fo~ in ~
~i~ pl~ding ~ ~ W ~ ~ of my k~wl~e, info~ation, ~ ~lief. I ~d
~ f~ s~mcn~ ~in ~ ~ ~ject to ~e pc~lties of 18 Pa,C,S, ~, ~lating to
~esi~nt
THE AMERICAN INSTITUTE OF ARCHITECTS
A~A Documen~ A312
Payment Bond
An,/singular rele~qce Io Contractor, Surety, Owner or mhar party shall be considered plural where applk:able.
CONTRACTOR (N~e and Address):
~s~and Construction,
Mechanicsbuxg, PA 17050
OWNER (Name end AcIdr~5}:
West Shore School District
507 Fishing Creek Road
Lewlsberry PA
CONSTRUCTION CONTRACT
D~e: February 12, 2001
SURETY (Name and PNndpal Place of BusinesS:
Fidelity and Deposit Compmny of
Maryland
300 Saint Paul Place P. O. BOX 1227
Baltimore, MD 21202
$1,991,300.00
Amour:One Million Nine Rundred Ninety One Thousand Three Hundred Dollars And No
De~d~k~(Na~andLoc~):Seneral Construction Cents
BONO~/terations to the ~o~e Midge School
D~e: February 12th 2001 $1,991,300.00
~°um:one M~!~on Nine ~undred Ninety One ~ousand Three Hundred ~ll~s ~d No
M~ifi~t~ons~om~se~: ~ N~ ~S~P~e6
CONTRACTOR AS PRINCIPAL
Company; (Corporate Seal)
· Name add Tiqe. J. N/elmel P~atberfor~ V.P.
..O~y.;~lcli. t~nal sisnalure~ appear on page 6)
SUREYY
Corr~G~y: (Corporate Seal}
F'idelity and De~osit/~Cc~r.oany o~
~ryland
N~ea~ Ti~: Robert N. SCriewig
Attorney-iR-Fmot
Cents
fF.O~. }N~ORMA TION ONLY-Name, Ado%ess and Telephone)
A(~E~qT or BROKER: OWNER'S REPRESENTATIVE (Ar~hite~, Ensin~r or
o~r ~):
8trlewi9 ~ndin9 Agency, Inc. ~ayea Laxge Architects
P.O. Box 161, ~ H~ll, PA 17011 321 N. Fgont St., Harrisburg, PA 17101
(717) 737-194~
rile No. SBA~ - 386
A312-1 ~4 4
I The Contractor and the Sure intly ~md severally,
bind them~elve% I~. esr heirs, executors, administrators,
successors and asmgns to. t~ Owner to pay for labor,
materials and e~uipment fum~shed for use In the per~er-
mance of the Construction Contract, which is incorpo-
rated herein by reference.
2 with respect to the Owner, this obli§ation shall be
null and void ff the Contractor:
2.1 promptly makes payment, directly or indirectly,
for all sums due Claimants, .and
2.2 Defends, indemnifies and holds harmless the
Owner from claims, demands, liens or sui~ by any
person or entity wbe~e c~alm, demand, lien or suit Is
for the payment for labor, materials or equipment fur-
rushed for use ~n the performance ~ the ConstruCtion
Contrac~ I:~ovided .the.Owr~.r has promptly notified
the Contractor aha the ~urety (at the address
described in Paragraph 12} of any claims, demands,
liens or suits and tendered defense of such claims,
demands, liens or suits to the Contractor and the
SureW, and provided there is no Owner Default.
3 With respect to Claimants, this obligation shall be
null and void ff the Contractor promptly makes pay
menk direcdy of indirectly, for all sums due.
4 The Sure~y shall have no obligation to Claimants
under this Bond until:
4~1 Cia{merits who are employed b.y or have a direct
contract with the Contractor have gwen nolice to the
Surety (al the address described in Paragraph 12) and
sent a copy or ~otice thereof, to the Owner,
that a c aim is being made under this Bond and, with
substantial acCuraCy, the amount of the claim.
4.2 Claimants who do not have a direct contract
with the Conlrac[or:
.1 Have furnished written nO, iCe to the Con-
tractor and sent a copy, or notice thereof, to
the Owner .within 9Odays after having last
performed anor or last furnished materials or
equipment included in the c}aim steering, with
sub~tontial accuracy, the amount of the claim
and ~.e name of t.~party to whom the
materials were furnishedor suppied or for
whom the abel was done or performed; and
.2 Have either received a rejection in whole or
in pan from the Contractor, or not received
.w. ithin 30 day~ of furnishing the above no-
?ce ~,y .cot~l~mu~nication fi.om the Con .aT~.~r
oy wmcn e contractor has indicated the
claim will be paid directly or indirectly; and
.3 Not having been paid within the above 30
day% have sent a writlon notice to the Surety
(st the address described in Paragraph 12} and
sent a copy, or no, ice thereof, ~o the Owner,
stating that a claim Is being made under this
Bond and enclosing a copy of the previous
written notice furnished t~ the Contractor.
5 If a notice required by Parag.mph 4 is given .by t,,~.
Owner to the Contmctof or to the Surety, that ~s surfs-
cient compliance.
6 VVhen the CIl~L~nt has satisfied the conditTons o~
Paragraph 4, the Su. rely shall pr~,o~.y and at the
Surety's exl~ense take the tollowlng actions.
I~.1 ~end an answer to the Claimant, with a oozy to
the Owner, within 4.5 days after recei~ of the ~l&lm,
~atin, g .me .amounts ~at are. undlspute~ and the basis
for cnahengmg any amount~ that are disputed.
6.2 Pay or arrange for payment of any undispueed
amounts.
7 The Surety's total obligation shall not exceed the
amount of this Bond, and the amount of this Bond shall be
credit~.d for any payments made in good faith by the Surety.
8 Amount~ owed by the Owner to the Contractor under
the Consbuct/o~ Contract shall be used for the pealer-
.m. ence of t.ha Construction Contract and to satisF/claims,
i! an.,y~ unaer a. ny C. onstruction Performance B?.nd. By
[he .~ogtractor mt.nighing and. the Owner accepting thb
uone, may agree mat all runes earned by the Contractor
In the .performance of the Cons:ruction Contract are
d. edicato~ to satisfy obligatlom of the Contractor and
the 5ure~y under this gon~l~ subject to the Owner's pr or-
Sty to use the fund~ for the completion of the work.
9 The Surety shall not be liable to the Owner, Claimant~
or others far obligations of the Contractor that are unrelat-
ed to the Construction Contract. The Owner shall not be
liable for pal~'nent of any costs or expenses of any Claim-
ant under this Bond, and shall have under this Bond no obli-
gations.to make payme.nts to, give notices on behalf of~ or
otherwise have obligahons to Claimants under this Bond.
10 Tire Surely hereby waives not~:e of any change,
including change~ of time, to the Constructio~ Contract
or to related subcontracts, purchase orders and other
obligations.
11 No suit or action shall be commenced by a Claimant
under this Bond other than In a court of competent juriS-
dictio.n in the location in which the work or part of the
work ~s located or a~ter the expiration of one year from the
date II) on which the Claimant gave the notice r~luired by
Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last
labor m service was performed by anyone o~ the est mate-
rials or equipment were furnished by anyone under the Con-
slrucflon Contract, whichever of {1) or (2) first occurs. If the
provisions of this Paragraph am void or prohibited by
the minimum period of limitation available to sureties as a
defense in the jurisdiction of the suit shall be applicable.
12 Notice to the Surely, the Ow~e or the Contracto~
shall be mailed or delivered to the address shown on the
signature pa~e. Actual receil~ of notice by .Surety, the
.Owne~.~ o.r the Co.n. tractor, I~ .o?ever accomphshed, shall
oe su11~oent compt~ance as el the date received at the
address shown on the signature page.
13 When this Bond has be~[.n furnished to comply with a
statutory or other legal reqmremem In the location where
t,.he c. onsttu~.ctiOr, was .to be ,performed, any provision in this
t~ona conflicting w th saio statutory of ]egal requirement
shal be deemed deleted herekont and provisions con-
forming to s.uch statutory of other legal requirement shall
be deemed ,ncorporated herein. The intent Is that this
rile No. SBR~ - 386
A312-1984 5
Bond shall be construed as a statuto~/bond and not as a
common law bond.
14 Uppn .request by any per, son o~ enti.ly apjoearin8 to be a
potenfla, I .ben~.lclary 0f .th!s ~ond~ Ihe Contractor shall
pr0mptly./urnlsn a copy ot this uona or shall permit a copy
robe made.
15 DI~FINII'ION$
15.1 Claim. ant: An individual or entity having a direct
contracl w~th the Contrac/or or wJtfl a subcontractor ot
· e Contractor ~ furni.sh labor, materials or equip-
me~t for use in the performance, of the Contract. The
intent of lhJs I~ond shall be Io include without llmlta-
tion in the temps "labor, materials o~ equipment" that
par~ of water, ga% power, light, heat~ oil, gasoline,
telephone service or fanta equipment usedin the
Construction Contract, architectural and engineering
servic~ required for performance of the w6rk o~ the
Contractor and the Contractor's subcont?ctor% and
all othes items .for. which a mechanic's hen may be
a~e~l, in the judsdictj ,o~! where ~ Idx~r, materials
or equipment were furnished.
15.2 Construction Coot~qact: The agreement between
the Owner and the Cor~tractot identified on the si~
n.ature pa~e, it~cluding all Contrac~ Documents aha
ctlange~J thereto.
1s.3 Owner De~eult.: Failure o{the Owner, which has
neither been remedied nor waived, topa¥ the Con-
tractor es m~l. utred by ~ha Cons~ru~ion Cobb'act or to
perfoml_ aha complete o~ co~l¥ with the other terms
MODIFICATIONS TO THIS BOND ARE AS FOLLOWS:
NONE
(Space is provided below for additional signature~ of added padies, other than thos~ appea~ing on the (;over page.)
CONTRACTOR AS PRINCIPAL SURETY
Company: ICorporate Seal) Company: ICorporaee Seal)
Signature: . BLANK Signature:
Name and Title: Name and Title:
Address: Addrese:
BLANK
A~I 2-1984. &
File No. SBA.I - 386
Michael P. Kadilak
President CEO
William J. Manna
Executive Vice President
KAMAND
J. Michael Rutherford
Vice P~eslclen!
David M. Suder
Vice Pleslclent
STANDARD FORM OF AGREEMENT BETWEEN
CONTRA CTO R AND SUB CONTRA CTO R
AGREEMENT made this 23,,~ day of March, ~001
BETWEEN the Contractor.
Kamand Construction, Inc.
203 Lynndale Court
Mechanicsbu~g, PA 17050
717-691-9350 Phone,
717-691-9790 Fax
And the Subcontractor:
Slough Flooring
10 South 24th Street
HarriSburg, PA 17103-2099
Dave Keller - Contact
717-234-2664 Phone
717-233-2819 Fax
With the Owner:
West Shore School District
507 Fishing Creek Road
Lewisberry, PA 1 7339-9411
Duane Yohe - Contact
For the following projec, t: Lemmdne Middle School
Contract No. 01008-SC14 GyTM Flooring & Resilient Flooring
Which Co.ntract is hereinafter rej~rred to as ihe Prime Contract and which proW'des for the
furnishing of labor, materials, equipment, and services in connection with the constr~ction of the
project. A copy of the Prime Contract, consisting of the Agreement Between Owner and.
Contractor (from which compensation amounts mmj be deleted) and the other Contract
Documents enumerated therein Ires been made available to the Subcontractor. The Contract
Documen ts are available for review by the Subcontractor at all reasonable times at the office of the
Contractor.
The Architect for the Project is: HaYes Large Architects
321 North Front Street
Harrisburg, PA 17101
Donald Harris - Contact
717-238-4795 'Phone
717-238-4800 Fax
203 Lynndale Court, Mechanicsburg, Pennsylvania 17050
Phone [717] 691-93'50 *:* Fax (717] 691.-9790
The Contractor and the Subcontractor Agree as follows:
Refinish Gym Floor & Resilient Flooring Complete Including:
Layout
Supply and install vinyl composition tile
Supply and install 4' vinyl base
Supply and install carpet
Supply and install reducer strips
Sand and refinish wood flooring
Install game lines and lettering
Clean up of related debris including disposal off site
Have materials delivered when required. No storage is available on jobsite - if
delivenj is mandatory prior to installation, this subcontractor will have to provide
required storage facilities. Phased projects should have materials shipped in phases
unless storage is provided.
Project to be phased - schedule to follow
- Fa~clu~iorm (m page "2a#)
ARTICLE 1 - THE SUBCONTRACT DOCUMENTS
1.1 The Subcontract Documents consist of(l) this Agreement; (2) the Prime Contract,
consisting of the Agreement between the Owner and the Contractor and the other
Contract Documents enumerated therein; (3) Modifications issued subsequent to the
execution of this Agreement between the Owner and Contractor, whether before or aider
the execution of this Agreement; (4) other documents listed in Article 16 of this
Agreement; and (5) Modifications to this Subcontract issued afier execution of this
Agreement. These form the Subcontract, and are as fully a part of the Subcontracts as if
attached to this Agreement or repeated herein. The Subcontract represents the entire and
in tegrated 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 tile execution of this
Agreement, appears in Article 16.
1.2 Except to the extent of a conflict with a specific term or condition contained in the
Subcontract Documents, the General Conditions governing this Subcontract shall be the
edition of AIA Document A201, General Conditions of the Contract for Constn~ction,
current as of the date of this Agreement.
1.3 The Subcontract may be amended or modified only by a Modification. The
Subcontract Documents shall not be construed to create a contractual relationship of any
kind (1) between the Architect and the Subcontractor, (2) between the Owner and the
Subcontractor, or (3) between any persons or entities other than the Contractor and
Subcontractor.
1.4 The Subcontractor slmll be furnished copies of the Subcontract Documents upon
request, but the Contractor may charge the Subcontractor for the reasonable cost of
reproduction.
2
Refinish Gym Floor & Resilient Flooring Complete Including (continued):
Exclusions - Contract work does not include any removal or replacement
of any furniture or equipment; demolition; floor preparation; major
patching of subfloors; cleaning or waxing; protection or removal of trash
from site. Subcontractor to place their trash in Contractor's dumpster.
2a
1.5 The Subcontractor represents and agrees that it has carefully examined the nature,
localily, and site of the work and the conditions and difficulties under which the work is
to he performed and it enters into this Subcontract on the basis of its own examination,
investigation and evaluation of all such matters and not in reliance upon any opinions or
representations of the Contractor.
1.6 All of the work shall be performed in accordance with all the contract drawings and
specifications and any addenda and modifications thereto. Should it appear that the work
hereby intended to be done or materials to be furnished are not sufficiently detailed or
explained on the drawings or in the specifications, the Subcontractor shall advise the
Con tractor immediately and request such clafffications and shall conform to the same
without extra compensation.
ARTICLE 2 - MUTUAL RIGHT AND RESPONSIBILITIES
2.1 The Contractar and Subcontractor shall be nlutually bound by the lerms of this
Agreement and, to the extent that the provisions of the edition of AIA Document A201
current as of the date of this Agreenlent apply to this Agreement pursuant to Paragraph
1.2 and provisions of the Prinle Contract opply to the work of this Subcontractor, the
Con tractor shall assume toward the Subcontractor all obligations and responsibilities
that the Owner, under such documents, assumes toward the Contractor, and the
Subcontractor shall assume toward the Contractor all obligations and responsibilities
which the Contractor, under such documents, assumes toward the Oumer and the
Architect. The Contractor shall have the benefit of all rights, remedies, and redress
against the Subcontractor which the Owner, under such documents, has against the
Contractor. Where a provision of such documents is inconsistent with a provision of this
Agreement, this Agreenlent shall govern.
2.2 The Contractor lnay require the Subcontractor to enter into agreements with Sub-
subcontractors pelfornling portions of the work of this Subcontract by which the Sub-
subcontractor is bound to the Subcontractor, to the extent of the work to be performed by
tile Sub-subcontractor, to the same extent the Subcontractor is bound to the Contractor,
and by which the Sub-subcontractor assumes all of the obligations and responsibilities
that tile Subcontractor assumes herein.
ARTICLE 3 - CONTRACTOR
3.1 SERVICES PROVIDED BY THE CONTRACTOR
3.1.1 The Contractor shall cooperate with the Subcontractor in scheduling and
perfornling the Contractor's work to avoid conflicts or interj~rence in the Subcontractor' s
work and shall expedite written responses to submittals made by the Subcontractor in
accordance with Paragraph 4.1 and Article 5. As soon as practicable after execution of
this Agreement, the Contractor shall provide the Subcolltractor copies of the Contractor's
constnlction schedule and schedule of submittals, together with such additional
scheduling details as will enable the Subcontractor 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 additional
scheduling details.
3
3.~.2 The Contractor shall endeavor to provide suitable areas for storage of the
Subcontractor' s materials and equipment during the course of the work.
3.1.3 Expect as provided in Article 14, the Contractor's equipment will be available to the
Subcontractor only at the Contractor's discretion and mutually satisfactory terms.
3.2 COMMUNICATIONS
3.2.1 The Contractor shall not give h~structions or orders directly to the Subcontractor' s
employees or to the Subcontractor' s Sub-subcontractors or material suppliers unless such
persons are designated as authorized representatives of the Subcontractor.
3.2.2. If hazardous substances of a type of which an employer is required by law to notifij
its employees are being used on the site by the Contractor, a subcontractor, or anyone
directly or indirectly employed by them (other titan the Subcontractor), the Contractor
shall, prior to harmful exposure of the Subcontractor's e~nployees to such substances, give
written notice of the chemical composition thereof to the Subcontractor in sufficient detail
and time to permit the Subcontractor' s compliance with such laws.
3.3 CLAIMS BY THE CONTRACTOR
The Subcontractor shall be responsible for liquidated damages to the extent provided for
in the Contract Documents for delays caused by or contributed to by the Subcontractor
or any person or entihy for whose acts the Subcontractor may be liable, including all or a
portion of any liquidated damages assessed by the Owner against the Contractor
attributable in whole or in part to such Subcontractor caused delays. Subcontractor shall
fit rther be responsible for actual damages to the Con tractor caused or con tribu ted to by
delay caused by the Subcon tractor or any person or entihd for whom the Subcontractor is
responsible. In the event liquidated damages or actual damages or both are caused by the
Subcontractor and another entity, the Contractor shall have the right to reasonably
apportion said damages between the parties, and such apportionment shall be binding.
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 receipt of written notice frora
the Contractor to comrnence and continue correction of such default or neglect with
diligence and p~vmptness, the Contractor may, and with prejudice to any other remedy
the Contractor may have, nmke good such deficiencies and may deduct the reasonable cost
thereof from the payments then or theread2er due the Subcontractor.
ARTICLE 4 - SUBCONTRACTOR
4.1 EXECUTION AND PROGRESS OF WORK
4.1.1 Tim Subcontractor shall supervise and direct the Subcontractor's work, and 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 Oumer' s own forces. The Contractor shall have the right to modifij the
construction schedule, to suspend, delay or accelerate, in whole or in part, the
commencement or execution of the Subcontractor' s work or vary the sequence thereof
without compensation to the Subcontractor. In the event such a delay or suspension
extends the overall ting of the performance, the completion date for Subcontractor's work
shall be extended. Such extension shall be Subcontractor' s sole and exclusive remedy and
Subcon tractor shall have no claim against the Contractor.
4.1.2 The Subcontractor shall promptly submit seven (7) copies within ten (10) days of
receipt of this agreement, Shop Drawings, Product Data, Samples and similar submittals
required by the Subcontract Documents with reasonable promptuess 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 nzay agree upon or as
required by the Owner, and supported by such evidence as the Contractor may require.
In applying for payment, the Subcontractor shall submit statements based upon this
sclvedule.
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
materials and equipment which may be in the course of preparation, manufacture or
transit.
4.1.5 The Subcontractor agrees that the Contractor and the Architect will each have the
authority to reject work of the Subcontractor, which does not conform to the Prime
Contract. The Architect's decisions on matters relating to aesthetic effect shall be final
and binding on the Subcontractor if consistent with the intent expressed in the Prime
Con tract.
4.1.6 Tile Subcontractor shall pay for all materials, equipment, and labor used in
connection with the performance of this Subcontract through the period covered In/
previous payments received from the Contractor, and shall furnish satisfactory evidence,
when requested by tile Contractor, to verif~j compliance with the above requirements.
Upon request, Subcontractor shall Jitrnish releases and lien waivers.
4.1.7 The Subcon tractor shall take necessanj precautions to protect properly the work of
other subcontractors, and the work of the Contractor and the Owner, 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 toork might interfere with the Subcontractor' s work. The
Subcontractor shall participate in the preparation of coordinated drawings in areas of
congestion, if required by the Prime Contract, specifically noting and advising the
Contractor of potential conflicts between the work of the Subcontractor and that of the
Contractor, other subcontractors, or the Owner's own forces.
4.2 LAW, PERMITS, FEES AND NOTICES
4.2.1. The Subcontractor shall give notices and comply with laws, ordinances, rules,
regulations, and orders of public authorities bearing on performance of the work of this
Subcontract. The Subcontractor shall secure and pay for permits and governmental J~es,
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 ~qith Federal state and local tax laws, Social
Security Acts, Unemployment Compensation Acts and Worker'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 saJet~j precautions with respect to
performance of this Subcontract, shall comply with saJet~d measures initiated by the
Contractor, and with applicable laws, ordinances, rules, regulations, and orders of public
authorities for the safety of persons and 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 the Subcontractor, the Subcontractor' s Sub-
subcon tractors or anyone directly or indirectly employed by them, the Subcontractor
shall prior to harmful expose of any employees on the site to such substance, give written
notice of the chemical composition thereof to the Contractor in sufficient detail and time
to permit compliance with such laws by the Contractor, other subcontractors and other
employers on the site. Hazardous materials shall not be used at the site without prior
written approval of the Contractor.
4.3.3 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or
death to persons resulting from a material or substance, including but not limited to
asbestos or pohJchlorinated biphenyl (PCB), encountered on tim site by the
Subcontractor, tim Subcontractor shall upon recognizing the condition, immediately stop
work in tim affected area and report the condition to the Contractor in writing. When the
material or substance has been rendered harmless, the Subcontractor' s work in the
affected area shall resume upon written agreement of the Contractor and the
Subcontractor. The Subcontract time shall be extended appropriately and the
Subcontract sum shall be increased in the amount of the Subcontractor' s reasonable
additional costs of demobilization, delay and remobilization, which adjustments shall be
accomplished as provided in Article 5 of this Agreement. Subcontractor shall not bring
such materials to the site without written approval of the Contractor, Architect, and
Owner.
4.3.4 To the fidlest extent permitted by law, the Contractor shall indemnify and hold
harmless the Subcontractor, the Subcontractor' s Sub-subcontractors, and agents and
employees of any of them from and against claims, danmges, losses and expenses,
including, but not limited to, attorney's fees, arising out of or resulting from performance
of the Work in the affected area if in fact the nmterial or substance presents the risk of
bodily injury or death as described in Subparagraph 4.3.3. and has not been rendered
6
harmless, provided that such claim, damage, loss or expense is attributable to bodily
injury, sickness, disease or provided that such damage, loss or expense is not due to the
sole negligence ora party seeking indemnity. Such indemnity is limited to an amount, if
any, the Contractor recovers from the Owner or other Subcontractors or suppliers.
4.4 CLEANING UP
4.4.1 The Subcontractor shall keep the premises and surrounding area free from
accumulation of waste materials or rubbish caused by operations performed under this
Subcontract on a daily basis. The Subcontractor shall not be held responsible for unclean
conditions caused by other contractors or subcontractors.
4.4.2 As provided under Subparagraph 3.32, if the Subcontractor fails lo clean up as
provided in the Subcontracts Documents, in the sole opinion of the Contractor, the
Contractor may charge the Subcontractor for the Subcontractor' s appropriate share of
cleanup costs.
4.5 WARRANTY
4.5.1 The Subcontractor warrants to the Owner, Architect, and Contractor that
materials and equipment J~trnished 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 to the requirements of the Subcontract
Documents. Work not conforming to these requirements, including substitutions not
properly approved and authorized, may be considered defective. TI~e Subcontractor's
warranty excludes remedy for damage or defect caused by abuse, modifications not
executed by the Subcontractor, improper or insufficient maintenance, improper
operation, or normal wear and tear under normal usage. This warranty shall be in
addition to and not in limitation of any other warranty or remedy required b?/ the
Subcon tract Documen ts:
4.6 INDEMNIFICATION
4.6.1 To the fullest extent permitted by lmo, the Subcontractor shall indemnifid and hold
harmless flue 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 any such claim,
damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to
injunJ to or destruction of tangible property (other than the work itselJ), but only to the
extent caused by the negligent acts or omissions of the Subcontractor, the
Subcontractor' 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 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 indenraified hereunder. Such obligation shall not be construed to negate, abridge,
or otheneise reduce olber rights or obligations of indemnity, which would otherwise exist
as to a party or person described in this Paragraph 4.6
7
4.6.2 In claims against any person or entity indemnified 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 Subparagraph 4.6.1 shall not be limited by a limitation
on the amount or hype of damages, compensation or benefits payable by or for the
Subcontractor or the Subcontractor' s Sub-subcontractors under Workers' Compensation
Acts, Disability Benefit Acts, or other employee benefit acts.
4.6.3 In the event that a party is requested, but refuses to honor the indemnity
obligations hereunder, then the party indemnifiding shall, in addition to all other
obligations, and upon adjudication of the party's liability for indemnification, pay the
cost of bringing such action including, but not limited to, reasonable attorneys'fees, costs
and expert fees to the party requesting indemnity. This provision shall survive
termination of this Agreement.
4.7 REMEDIES FOR NONPAYMENT
4. Z 1 If the Contractor does not pay tbe Subcon tractor through n o fault of the
Subcontractor, within seven days from the time payment should be made as provided in
this AgreemenL the Subcontractor may, without prejudice to any other available
remedies, upon seven additional days' written notice to the Contractor, stop the work of
this Subcon tract un til payment of the amount owning ~s been received.
Nvh,,ilh~hmdi,~g m~ylhi,~g k, I1~ ~v,d,,,,y, I]~ ,r~iFl t~,y,~,d by tl~ ~nltu~lu~ f~m
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 issned subsequent to the execution of the
Subcontract Agreement, the Contractor shall promptly not~j the Subcontractor of the
Modification. Unless otherwise directed by the Contractor, the Subcontractor shall not
thereafter order materials or perforni work which would be inconsistent with the changes
made by the Modifications to the Prime Contract.
5.2 The Subcontractor may be ordered in writing by the Contractor, without
.invalidating this Subcontract, to make changes in the work within the general scope of
this Subcontract consisting of additions, deletions, or other revisions, including those
required by Modifications to the Prime Contract issned 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 slmll submit promptly to the Contractor written copies of a claim for adjustment to
the Subcontract suni and Subcontract time for such revised work in a manner consistent
with requirements of the Subcontract Documents. The Subcontractor shall proceed with
the changed work as directed by the Contractor while such claim for adjustment is being
determined.
5.3 The Subcontractor shall make all claims promptly to the Contractor for additional
cost, extensions of time, and damages for delays or other causes in accordance with the
Subcontract Documents. A claim zohich will affect or become part ora claim which the
Contractor is required to make under the Prime Contract within a specified 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 tkan two worla'ng 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 tlte sante consequences as those to which the Contractor is bound.
Receipt of payment from the Owner by the Contractor for extra work, damages or any
other claims sl~all be a condition precedent to the right of the Subcontractor to receive
payment from the Contractor for such costs, damages or claims.
AR TICLE 6 - MEDIA TION AND AR BITRA TION 6.1 MEDIA TION
6.1.1 Any claim arising out of or related to this Subcontract except claims as otherwise
provided in Subparagraph 4.1.5 and except those waived in this Subcontract, shall be
subject to mediation as a condition precedent to arbitration or the institution of legal or
equitable proceedings by either party.
6.1.2 The parties shall endeavor to resolve their claims by mediation which, unless the
parties mutually agree otherwise, shall be in accordance with the Construction Industnj
Mediation Rules of the American Arbitration Association currently in effect. Request for
mediation shall be filed in writing with the other party to this Subcontract and the
American Arbitration Association, Philadelphia office. The request may be made
concurrently with the filing of a demand for arbitration but, in such event, mediation
shall proceed in advance of arbitration or legal or equitable proceedings, which shall be
stayed pending mediation for a period of 60 days from the date of filing, unless stayed for
a longer period by agreement of the parties or court order.
6.1.3 The parties stmll share the mediator's Jee and any filing fees equally. The mediation
shall be held in Harrisburg, Pennsylvania. Agreements reached in mediation shall be
enforceable as settlement agreentents in any court having jurisdiction thereof.
6.2 ARBITRATION
6.2.1 Any claim arising out of or related to this Subcontract, except claims as otherwise
provided in Subparagraph 4.1.5 and except those waived in this Subcontract, shall be
subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes
by mediation in accordance with the provisions of Paragraph 6.1.
6.2.2. Claims not resolved by mediation shall he decided by arbitration which, unless the
parties mutually agree otherwise, shall be in accordance with the Construction Industnd
Arbitration Rules of the Anterican Arbitration Association currently in effect. Demand
for arbitration shall be filed in writing with the other party to this Subcontract and with
the American Arbitration Association, Philadelphia office.
6.2.3 A demand for arbitration shall be made within the time limits specified in the
conditions of the Prime Contract as applicable, and in other cases within a reasonable
time after the claim has arisen, and in no event shall it be made after the date when
9
institution of legal or equitable proceedings based on such claim would be barred by the
applicable statute of limitations.
6.2.4 Limitation on Consolidation or ]oinder - except [nd written consent of the person or
entity sough to be joined, no arbitration arising out of or relating to the Subcontract shall
include, by consolidation or joinder or in any other manner, any person or entity not a
party to the Subcontract under which such arbitration arises, unless it is shown at the
time the demand for arbitration is filed that (1) such person or entity is substantially
involved in a common quesl~bn 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 interest 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 emplo~e, 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 enforceable under applicable law in any court having jurisdiction
thereof
6.2.5 Claims and Timely Assertion of Claims - the party filing a notice of demand for
arbitration must assert in the demand all claims then known to that party on which
arbitration is permitted to be demanded. Any arbitration hearing shall be held in
Harrisburg, Pennsylvania.
6.2.6 Judgment on Final Award - the award rendered by the arbitrator or arbitrators
shall be final, and judgment may be entered upon it in accordance with the Pennsylvania
Statutory Arbitration Law, 42 Pa. C.S.A., Section 7301, Chapter A.
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 procedures 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 Subcontractor for any reason which is not the fault of the
Subcon tractor, Sub-subcontractor, or their agents or etnployees or other persons
performing portions of the work under con tract with the Subcon tractor, the
Subcontractor shall be entitled to recover from the Contractor payment for work
execu ted.
7.2 TERMINATION BY THE CONTRACTOR
7.2.1 If the Subcontractor persistently or repeatedly fails or neglects to carnj out the
work in accordance with the Subcon tract Documen ts or othenoise to perform in
accordance with this Subcontract and fails within seven days aJier receipt of written
notice to commence and continue correction of such default or neglect with diligence and
promptness, the Contractor may, without prejudice to any other remedy the Contractor
may have, terminate the Subcontract and finish the Subcontractor' s work by whatever
method the Contractor may dee~n expedient. If such expense and damages exceed such
unpaid balance, the Subcontractor shall pay the difference to the Contractor. In addition
10
to the foregoing, the Contractor may terminate the Subcontract for the same reasons and
circumstances, and in accordance with the same procedures, as the Owner may terminate
the Prime Contact as provided in the General Conditions of the Prime Contract or
elsewhere.
Z2.2 If the Owner terminates the Contract for the Owner's convenience, the Contractor
shall deliver written notice to the Subcontractor.
Z2.3 Upon receipt of written notice of termination, the Subcontractor shall:
1. Cease operations as directed by the Contractor in the notice;
2. take actions necessary, or that the Contraclor may direct, for the protection
and preservation of the work; and
3. except for work directed to be performed prior to the effective date of
termination stated in the notice, terminate all existing Sub-subcon tracts and
purchase orders and enter into no further Sub-subcontracts and purchase orders.
7.2.4 In case of such termination for the Owner's convenience, the Subcontractor shall
be entitled to receive payment for work executed, and costs incurred by reason of such
termination, if Contractor is entitled to such payment. Receipt of payment by the Owner
to the Contractor for such termination of the Subcontract shall be a condition precedent
to the right of the Subcontractor to payment for termination.
7.3 SUSPENSION BY THE CONTRACTOR FOR CONVENIENCE
7.3.1 The Contractor may, without cause, order the Subcontractor in writing to suspend,
delay or interrupt the work of this Subcontract in whole or in part for such period of time
as the Contractor may determine. In the event of suspension ordered by the Contractor,
the Subcon tractor may be en titled to an equitable adjust men t of the Subcon tract time and
Subcontract suni, if Contractor has received payment by the Owner for such suspension.
Z3.2 An adjustment shall be made for increases in the Subcontract time and
Subcontract sum, including profit on the increased cost of performance, caused by
suspension, delay, or interruption. No adjustment shall be made to tire extent:
1. That performance is, was or would have been so suspended, delayed or
interrvpted by another cause for which the Subcontractor is responsible;
2. that an equitable adjustment is made or denied under anolher provision of this
Subcontract.
Z4 ASSIGNMENT OF THE SUBCONTRACT
7.4.1 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 tlve Prime Contract and to the prior rights of the suret~d, if any, obligated
under bonds relating to the Prime Contract. In such event, the Owner shall assume the
Contractor's rights and obligations under the Subcontract Documents. If the work of the
Prime Contract has been suspended for more tluan 30 days, the Subcontractor' s
compensation may be equitably adjusted.
7.4.2 The Subcontractor shall not assign the work of this Subcontract without the
written consent of the Contractor, nor subcontract the whole of this Subcon tract without
11
the written consent of the Contractor, nor ~rther subcontract portions of this
Subcontract without written notice to the Contractor when such notification is requested
by the Contractor.
ARTICLE 8 - THE WORK OF THE SUBCONTRACT
8.1 The Subcon tractor shall exea~te the following portion of the work described in the
Subcontract Documents, including all labor, materials, equip~nent` 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.
ARTICLE 9 - DATE OF COMMENCEMENT AND SUBTANTL4L COMPLETION
9.1 The Subcontractor' s date of commencement is the date from which the Contract time
of Paragraph 9.3 is measured; it shall be the date of this Agreement, as first written
above, unless a different date is stated below or provision is made for the date to be fixed
in a Notice to Proceed issued by the Contractor.
9.2 Unless the date of commencement is established by a Notice to Proceed issued by the
Contractor, or the Contractor Ires commenced visible work at the site under the Prime
Contract, the Subcontractor shall noti~./ the Contractor in writing not less titan five (5)
days before commencing the Subcontractor' s work to pernfft the timely filing of
mortgages, mechanic's liens and other security interests.
9.3 The Work of This Subcontract shall be substantially completed not later tlmn
August` 2002, subject to adjustments of this Subcontract Time as provided in the
Subcontract Documents.
9.4 With respect to the obligations of both the Contractor and the Subcontractor, time is
of the essence of this Subcontract.
9.5 No extension of time will be valid without the Contractor's written consent after
claim made by the Subcontractor in accordance with Paragraph 5.3.
ARTICLE 10 - SUBCONTRACT SUM
10:1 Tile Contractor slmll pay the Subcontractor in current funds for perforniance of the
Subcontract the Subcontract Sum of Forty Thousand Dollars ($40,000.00), 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.
Alternate:G-1
Alternate:G-2
Alternate:G-3
Alternate:G-4
A Iternate:G-5
A Iternate:G-6
Description: Replace gym bleachers
Description: Replace cast stone wall grille
Description: Rework roof coping units
Description: Replace windows and in fill system
Description: Asbestos abatement in corridors
Description: Pressure clean exterior masonry
10.3 Unit prices, if any, are as follows: N/A
12
ARTICLES 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 payments on account of the Subcontract sum to the Subcontractor as
provided below and elsewhere in the Subcontract Documents. Unless the Contractor
provides the Owner with a payment bond in the j~dl penal sum of the Contract Sum,
payments received by the Contractor and Subcontractor for work properly performed by
their contractors and suppliers shall be held tnd the Contractor and Subcontractor for
those contractors or suppliers who performed work or furnished materials, or both, under
contract with the Contractor or Subcontractor for which payment was made to the
Contractor by the Owner or to the Subcontractor by the Contractor, as applicable.
Nothing contained herein slrall require money to be placed in a separate account and not
connningled with money of the Contractor or Subcontractor, shall create any fiduciary
liability or tort liability on the part of the Contractor or Subcontractor for breach of trust
or shall entitle any person or entity to an award of punitive damages against the
Contractor or Subcontractor for breach of the requirements of this provision. Acceptance
of periodic progress payments tn./the Subcontractor slrall constitute a waiver of any and
all claims by the Subcontractor against the Contractor or the Owner or any payment
bond unless such claims are expressly reserved on the face of the Application for
Payment. Upon request, Subcontractor shall furnish affidavits and release of claims and
lien waivers in a form acceptable to Contractor.
11.2 The period covered by each application for payment shall be one calendar month
ending on the last day of the month, or as follows: Payment shall be made within ~ven
(D ~ys a~er receipt of payn~nt ~om the Owner by the ~ntractor. Subcontractor s~ll
submit its applicahon for payment monthly or pursuant to a sd~dule es~blished ~
Contractor. Rc~qpt of pay~'~l by ~n~r ~m ~ncr ~]mll bc a condttto~
p~y,,,-,, t .1,,dI l~ *dely ~a,,t.d by fi,.ll
11.3 ]fan application for payment is received by the Con tractor 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.
11.4 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
sd~edule 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 nmy required. This schedule, unless objected
to by the Contractor, slmll be used as a basis for reviewing the Subcontractor' s
Application for Payment.
11.5 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.
13
11.6 Subject to the provisions of the Subcontract Documents, the amount of each
progress payment shall be computed as follows:
11.6.1 Take that portion of the Subcontract sum properly allocable to completed work as
determined by multipl~ng 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 Subcontractar's work in the schedule of values, less ten percent (10%) retainage.
Pending final determination of cost to the Contractor of changes in the work which have
been properly authorized by the Contractor, amounts not in dispute shall be included to
the same extent provided in the Prime Contract, even though the Subcontract sum has
not yet been adjusted.
11.6.2 Add that portion of the Subcontract sum properly allocable to materials and
equipment delivered and suitably stored at the suite by the Subcontractor for subsequent
incorporation in the Subcontractor' s work or, if approved by the Contractor, 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
Con tractor's application for paymen t;
Subtract the aggregate of previous payments made by the Contractor; and
11.6.4 Subtract amounts, if any, calculated under Subparagraph 11.Z1 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.
11.6.5 The Contractor may withhold payment from the Subcontractor, in whole or in
part, for any failure of the Subcontractor to perform per the terms and conditions of the
Subcontract Documents or for the reasons and circumstances by which the Owner may
withhold payment from the Contractor, regardless of whether or not tim Owner actually
has withheld payment fi'om the Con tractor.
11.7 Upon the partial or en tire disapproval by the Contractor of the Subcontractor's
application for payment, the Contractor shall provide written notice to the Subcontractor.
When the basis for the disapproval has been remedied, the Subcontractor shall be paid the
amounts withheld.
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 requirements 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 Con tractor shall, to the full
extent allowed in the Prime Contract, make payment to the Subcontractor, deducting any
portion of the funds for the Subcontractor" 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 fidl release of retainage is allowed under the Prime Contract for the Subcontractor' s
14
work phor to the completion of the entire project. If the Prime Contract does not allow
for a ftdl release of retainage, then such payment shall be an amount which, when added
to previous payments lo the Subcontractor, will reduce the retainage on the
Subcon tractor's substantially completed work to the same percentage of retainage as that
on the Contractor's work covered by the certificate. I;ayment Iv thc Ovnlruclur by lh~
~ Payment to the Sitbcontractor shall no constitute acceptance of work.
ARTICLE 12 - FINAL PAYMENT
12.1 Final payment, constituting the entire unpaid balance of the Subcontract sum, shall
be made by the Contractor to the Subcontractor when the Subcontractor' s work is fully
performed in accordance with the requirements of the Subcontract Documents, the
Architect has issued a certificate for payment covering the Subcon tractor's completed
work, and the Contractor has received payment from the Owner. F~y,,~nt ti, the
~unlr~tlur l'y lhe O,,m~ Umll l~v , ~.ml[l[~,n ~,,v, r.t~t,I I~. II~e . ;~ld ~,f ll,¢ q.~l.~\,~d,m lot
vf t]~ ~,d,,tlat. Final payment shall ~ nla~ ten (10) ~ys after receipt of same Md t~
Contractor pom the Owner.
12.2 Before issuance of the final paymenL 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. Acceptance of final payment by Subcontractor shall constitute a waiver of
any and all claims against the Contractor, Owner, or Surehd. Subcontractor shall pursue
a general release andfinal lien waiver in a form acceptable to Contractor.
ARTIECLE 13 - INSURANCE AND BONDS
13.1 The Subcontractor shall purchase and maintain insurance of the following t~jpes of
coverage and limits ofliabililay coverages in the forms and limits as set forth in the
Owner-Contractor Agreement or suclt limits as set forth below, whichever is greater:
Commercial General Liability, including coverage for Premise-Operations, Independent
Co~itractors' Protective, Products-Completed Operatwns, Contractual Liability, Personal
hqu~y, and Broad Form Property Dmnage fincluding coverage for Explosion, Collapse,
and Underground Hazards):
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$1,000,000 Personal and Advertising Injury
$2,000,000 Products-Completed Operations Aggregate
$ 100,000 Fire Damage
The policy slmll be endorsed to have the General Aggregate apply to this project only.
Products and Completed Operations insurance slmll be maintained for a minimum period
of at least two (2) years after either ninety (90) days following substantial completion or
final payment, whichever is earlier.
15
Au tomobile Liability (owned, non-owned and hired vehicles)for bodily injury and
property damage:
$1,000,000 Each Accident
Other Coverage:
Excess Liability Other than Umbrella for Each Occurrence - $5,000,000
Aggregate - $5,000,000
Contractor shall be named an additional insured and provided with certificates of
insurance prior to the commencement of Subcontractor's work.
13.2 Coverages, written on an occurrence basis, shall be maintained without
interruption from date of commencement of the Subcontractor' s work until date of final
payment or date coverage is required to be maintained afler Jinal payment to the
Subcontractor, whichever is later.
13.3 Certificates of insurance acceptable to the Contractor shall be filed with the
Contractor prior to commencement of the Subcontractor' 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 canceled 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 afler jSnal payment and are reasonably available,
an additional certificate evidencing continuation of such coverage slmll be submitted with
the final application or 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 shall furnish to the Subcontract satisfactond evidence of insurance
required of the Contractor under the Prime Contract.
13.5 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
Subcon tract.
13.6 Performance Bond and Payment Bond:
13.7 PROPERTY INSURANCE
13.Z1 Subcontractor shall provide property and equipment insurance for the full tmlue
of the Subcontractor' s work, including property and equipment insurance coverage for all
materials and equipment stored off-site or in transit whether or not such ioork is covered
under the project property insurance, unless the Contractor issues a specific written
waiver of the requirements that the Subcontractor provide property and equipment
insurance for the full value of the Subcontractor' s work.
13.8 WAIVERS OF SUBROGATION
13.8.1 The Contractor and Subcontractor ~oaive all rights against (1) each other and any
of their subcontractors, sub-subcontractors, agents and employees, each of the other, and
(2) the Owner, the Architect, the Architect's consultants, separate contractors, and any
16
of their subcon tractors, sub-subcon tractors, agen ts and employees for damages caused by
fire or other causes of loss 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 O~oner as a fiduciary. The
Subcontractor shall require of the Subcontmctor' s Sub-subcontractors, agents, and
employees, by appropriate agreements, written where legally required for validity, similar
waivers in favor of the part~s enumerated herein. The policies shall provide such ~oaivers
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 ~oould otherwise have a duty of
indemnification, contractual or otherwise, did not pay the insurance premium directly or
indirectly, and whether or not the person or entity bad an insurable interest in the
proper~d da~ttaged.
ARTIECLE 14 - TEMPORARY FACILITIES AND WORKING CONDITIONS
14.1 The Contractor shall fitrnish and make available to the Subcontractor the following
temporand facilities, equipment and services; these shall be furnished at no cost to the
Subcontractor unless otherwise indicated below:
14.1.1 The Subcontractor is responsible for verifiding the dimensions and elevations at
the site by field measurements prior to ordering materials or in any way commencing to
perform work. The Subcontractor shall be solely responsible for monitoring the progress
of the project and for coordinating and performing all field measurements in a timely
manner sufficient to support the Project Schedule
14.2 Specific working conditions: No Smoking Policy
14.2.1 All work shall be performed in accordance with Subcontractor's safety program
and Contractor's Safety Program (a copy of which will be posted at the job site).
14.2.2 71frs Agreement contains an Equal Opportunity Provision by which
Subcontractor agrees not to discriminate against any employee or applicant for
employment by reasons of race, color, religion, sex, or national origin.
14.2.3 Subcontractor shall supply all MSDS information for materials utilized in its
work to the Contractor's Superintendent. Prior to coming on site MSDS information
mnst be on file.
· 14.2.4 For prevailing wage projects, certified payroll submissions are required.
14.2.5 For school projects, Act 34 clearances are required.
14.2.6 A bond is not required.
14.2.7 Subcontractor shall be subject to liquidated damages of Five Hundred
Dollars ($500.00) per calendar day.
17
ARTICLE 15 - MISCELLANEOUS PROVISIONS
15.1 INhere reference is made in this Subcontract to a provision of another Subcontract
Document, the reference refers to the provision as amended or supplemented by other
provisions of the Subcon tract Docu men ts.
15.2 ?ayments due and unpaid under this Subcontract slmll bear interest from the date
payment is due at such rate as the parties 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. Receipt of payment of interest from the Owner is a condition precedent to the
payment of in terest to the Subcon tractor.
15.3 Retainage and any reduction thereto is as follows: Ten Percent (10%)
15.4 This Agreement is governed by the laws of the Commonwealth of Pennsylvania
without application of its choice of law provisions.
15.5 If any Subcontractor, laborer or material supplier of the Subcontractor or any other
person directly or indirectly acting for or through it files a Meclmnics' Lien or claim
against the project, the properhd, or any improvements thereon or against any monies due
or to become due fivnl the Owner to the Contractor or from the Contractor to the
Subcontractor, for or on account of any work, labor, services, materials, or equipment or
other ternls fitrnished in connection with the work or any clmnge order, the
Subcontractor agrees to satisfij, remove, or discharge such lien or claims at its own
expense by bond, payment or othel~vise within ten (10) days of the date of the filing
thereof. If Subcontractor shall fail to do so, the Contractor slulll have the right, in
addition to all other rights and remedies provided in the Contract Documents or by law,
to satisfiJ, remove or discharge such liens or claims by whatever means the Contractor
chooses at the entire expense of the Subcontractor, inchlding legal fees and expenses.
ARTICLE 16 - ENUMERATION OF SUBCONTRACT DOCUMENTS
16.1 The Subcontract documents, except for Modifications issued afler execution of this
Subcontract, are enumerated as follows:
16.1.1 This executed Standard Form of Agreement Between Con tractor and
Subcontractor;
16.1.2 The Prime Contract, consisting of the Agreement between the Owner and the
Contractor dated as first entered above and the other Contract Documents enumerated in
the Owner-Con tractor Agreemen t;
16.1.3 The following Modifications to the Prime Contract, if any, issued subsequent to
the execution of the Owner-Contractor Agreement but prior to the execution of this
A greemen t:
Modification 1
Modification 2
Modification 3
Modification 4
Date 2 January 2001
Date 6 January 2001
Date 12 January 2001
Date 12 January 2001
18
Modification 5
Date 16 ]anztary 2001
16.1.4 Other Documents, if any, forming part of the Subcohtract Documents are as
follows:
Wage Rates
Specifications 09650, 09590 and 09680
Drawings Al through A22
This Agreement entered into as of the day and year first written above.
Kamand Constn,ction, Inc.
Slough Flooring, Inc.
L Michael Rutherford, Vice President
(Printed name and title)
(Printed name and title)
19
CHANGE ORDER
April 26, 2002
Slough Flooring
10 South 24a' Street
Harrisburg, PA 17103-2099
Attention: Mr. Stuart Shomper
RE: SUB-CONTRACT gO]O08-SC14
Change Order
Dear Stuart:
The subject sub-contract has been amended as follows:
1. Delete VCT installation and materials in corridors: ($11,606.00) TOTAL ADDITIONAL COST: ($11,606.00)
This Change Order becomes part of and in conformance with the existing contract. All other
terms and conditions remain the same.
ORGINAL CONTRACT: $ 40,000.00
PREVIOUS CHANGE ORDER: $ 0.00
TH1S CHANGE ORDER: $ (11,606.00)
REVISED CONTRACT: $ 28,394.00
Signature "i ? J-~,~,-'*~': /~'~)t~/-~,,.~.'-'a~
Kamand ConStruCtion, g'n~..
Date -5'"-,/('~'/
ACCEPTANCE OF CHANGE ORDER-
Authorized ~/'~
~Dalough Flooring.lnc.
v~ R. Ke~er, President
Cc: file site
B. Dugan
Date May 1,
2002
2002
CHANGE ORDER
December 2, 2002
Slough Flooring
l0 South 24m Street
Harrisburg, PA 17103-2099
Attention: Mr. Stuart Shomper
RE: SUB-CONTRACT #01008-SC 14
Change Order #02
Dear Stuart:
The subject sub-contract has been amended as follows:
_~_/~_~-LCLc/_t~}.!. Patch and sand concrete per worksheet:
~,~,e WII ~,b/~. Patch sub floor:
vet i.
.~ ~Z~'r) TOTAL ADDITIONAL COST:
$],328.00
$ 314.00
$ 275.00
$1,917.00
This Change Order becomes part of and in conformance with the existing contract. All other
terms and conditions remain the same.
ORGINAL CONTRACT: $ 40,000.00
PREVIOUS CHANGE ORDER: $ (11,606.00)
THIS CHANGE ORDER: $ 1,917.00
REVISED CONTRACT: $ 30,311.00
^.thor, zed
Kamand Construction,
Date
ACCEPTANCE OF CHANGE ORDER-
Authorized ~-/'~/~'~-/~
hvid R. Keller, President
Cc: ~le
site
B. Dugaa
L~ate December 5, 2002
51834
September 29, 2003
Fidelity and Deposit Company of
Maryland
300 Saint Paul Place
P.O. Box 1227
Baltimore, MD 21202
CERTIFIED MAIL
Re: Alterations to Lemovne Middle School
Dear Sirs:
We represent Slough Flooring, Inc. ("Slough"), which was a subcontractor of your
principal, Kamand Construction, Inc., on the above-referenced project. For your convenience,
we are enclosing a copy of Slough's subcontract with Kamand, as well as ail change orders
agreed to with respect to that subcontract. Also, for your reference, we are enclosing a copy of
the Payment Bond which you issued for the project.
Although Slough finished its work during the week of October 27, 2002, and has billed
the entire amount of the subcontract, including retainage, there still remains unpaid and due to
Slough the sum of $5,506.10.
Thc purpose of this letter is to provide you with the notice required by Paragraph 4.1 of
your bond, that Slough is making a claim for the principai baiance of $5,506.10, plus interest
from December I0, 2002 (the date of Slough's last payment application). By copy of this letter
to the Owner, we are also providing it with the notice required by Paragraph 4.1 of your bond.
We look forward to your response pursuant to Paragraph 6 of the bond.
Cc: West Shore School District
Very truly yours,
BECKLEY & MADDEN
~Milakovic
· Complete items 1.2. and 3. Also complete ,~ Rece~ by (P/ease Pn'n~ ~J~.
· Pdnt your name and address on the reverse ! .... ~-' ....
so that we can return the card to you.
· Attach this card to the back of the mailpiece,
or on the front if space permits.
1. Article Addressed to:
2, Article Number
(r~.~f~ f~o~.r~ ~/) 7001 2510
PS Form 3811, Mamh 2001
r-I Agent
X ~ ~] Addressee
D. Is deiiver~ address-'di~emnt from item l ? ~1 Yes
If YES, enter deliver,/address below: ~] No
[~Certified Mail ~-I Express Mail
[] Registered I-] R~urn Receipt for Merchandise
[] Insured Mail r-I C.O.D.
4. Restricted Delivery? (Extra F6e) [~] Yes
0002 2637
Domestic R~um Receipt
7706
102595-01 -M*7424
· Complete ~erns 1, 2, arid 3. Also complete
item 4 if Restricted Delivery is c~esired.
· Print your r~me and address on the reverse
so that we can return the ~ to you.
· Attach this card to the back of the mailpiece,
or on the front if space ~mits.
West Shore Sc.bool District
5Q7 Fishing Creek Road
Lewisberry PA 17339~9411
~ 7001 1140 0000 9629
Ps Form 3811, Mamh 2001
3. Service Type
D Registered i-] Return Receipt for Merchandise
4. Restrictsd DeliveP/? (Extra Fee) i-3 Yes
0811 File: , 051834
CERTIFICATE OF SERVICE
It is hereby certified that a copy of the foregoing document was this day served upon the
following persons in the manner below indicated.
FIRST CLASS MAIL
Fidelity and Deposit Company of Maryland
300 Saint Paul Place
P.O. Box 1227
Baltimore, MD 21202
Dated:
ELLSWORTH, CARLTON, MIXELL & WALDMAN, P.C.
BY: ROBERT T. CARLTON, JR., ESQ.
Attorney I.D. No.: 25050
1105 Berkshire Boulevard, Suite 320
Wyomissing, PA 19610
(610) 374-1135 Attorneys for Defendant
Fidelity and Deposit Company
of Maryland
SLOUGH FLOORING, INC. :
Plaintiff, :
FIDELITY AND DEPOSIT COMPANY :
OF MARYLAND :
:
Defendant. :
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION-LAW
NO: 03-5292 CIVIL TERM
ENTRY OF APPF2~RANCE
TO THE PROTHONOTARY:
Kindly enter this firm's appearance on behalf of
Fidelity and Deposit Company of Maryland in this civil
Defendant
action.
Ellsworth, Carlton, Mixell
& Waldman, P.C.
By:. / d~'/~/~--~
Robert T. Carlton, Jr.
Attorneys for Defendant
Fidelity and Deposit Company
of Maryland
January 9, 2004
ELLSWORTH, CARLTON, MIXELL & WALDMAN,
BY: ROBERT T. CARLTON, JR., ESQ.
Attorney I.D. No.: 25050
1105 Berkshire Boulevard, Suite 320
Wyomissing, PA 19610
(610) 374-1135
SLOUGH FLOORING, INC. :
Plaintiff, :
FIDELITY AND DEPOSIT COMPANY :
OF MARYLAND :
Defendant. :
P.O.
Attorneys for Defendant
Fidelity and Deposit Company
of Maryland
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION-LAW
NO: 03-5292 CIVIL TERM
CERTIFICATE OF SERVICE
I, Robert T. Carlton, Jr., Esquire, certify that on January 9,
2004, I caused a true and correct copy of the foregoing Entry of
Appearance to be served by first class mail upon:
John G. Milakovic, Esquire
Beckley & Madden
212 North Third Street
P.O. Box 11998
Harrisburg, PA 17108-1998
Robert T. Carlton,
ELLSWORTH, CARLTON, MIXELL & WALDMAN,
BY: ROBERT T. CARLTON, JR., ESQ.
Attorney I.D. No.: 25050
1105 Berkshire Boulevard, Suite 320
Wyomissing, PA 19610
(610) 374-1135
Attorneys for Defendant
Fidelity and Deposit Company
of MaryLand
SLOUGH FLOORING, INC. :
:
Plaintiff, :
FIDELITY AND DEPOSIT COMPANY :
OF MARYLAND :
:
Defendant. :
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION-LAW
NO: 03-5292 CIVIL TERM
NOTICE TO PLEAD
TO: John G. Milakovic, Esquire
Beckley & Madden
212 North Third Street
P.O. Box 11998
Harrisburg, PA 17108-1998
Attorneys for Plaintiff
You are hereby notified to file
enclosed New Matter within twenty (20)
a judgment may be entered against you.
a written response to the
days from service hereof or
Ellsworth, Carlton, Mixell
& Waldman, ?.C.
Robert T. Carlto/, Jr.
Attorneys for Defendant
ELLSWORTH, CARLTON, MIXELL & WALDMAN,
BY: ROBERT T. CARLTON, JR., ESQ.
Attorney I.D. No.: 25050
1105 Berkshire Boulevard, Suite 320
Wyomissing, PA 19610
(610) 374-1135
Attorneys for Defendant
Fidelity and Deposit Company
of Maryland
SLOUGH FLOORING, INC. :
Plaintiff, :
FIDELITY AND DEPOSIT COMPANY :
OF MARYLAND :
:
Defendant. :
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION-LAW
NO: 03-5292 CIVIL TERM
ANS~ERA~D NEW MATTER
Defendant Fidelity and Deposit Company of Maryland ("F&D") by
it counsel, Ellsworth, Carlton, Mixell & Waldman, P.C., answers the
correspondingly numbered paragraphs of Plaintiff Slough Flooring,
Inc.'s ("Slough") Complaint as follows:
1. After reasonable investigation F&D is without knowledge or
information sufficient to form a belief as to the truth of the
averments of paragraph 1 of Slough's Complaint.
2. Admitted in part, denied in part.
is a Maryland corporation. It is denied
located at 300 St. Paul
are now located at 3910
3. Admitted.
It is admitted that F&D
that F&D's offices are
Place, Baltimore, Maryland. F&D's offices
Keswick Road, Baltimore, Maryland.
4. After reasonable investigation F&D is without knowledge or
information sufficient to form a belief as to the truth of the
averments of paragraph 4 of Slough's Complaint.
5. After reasonable investigation F&D is without knowledge or
information sufficient to form a belief as to the truth of the
averments of paragraph 5 of Slough's Complaint.
I. COUNT ONE-ACTION ON PAYMENT BOND
6. F&D incorporates by reference the averments of its answers
to paragraphs 1 through 5 of Slough's Complaint.
7. After reasonable investigation F&D is without knowledge or
information sufficient to form a belief as to the truth of the
averments of paragraph of Slough's Complaint.
8. After reasonable investigation F&D is without knowledge or
information sufficient to form a belief as to the truth of the
averments of paragraph 8 of Slough's Complaint.
9. Admitted in part, denied in part. It is admitted that
Slough has made demand and that F&D has refused to make payment.
After reasonable investigation F&D is without knowledge or
information sufficient to form a belief as to the truth of the
averments of paragraph 8 of Slough's Complaint that there is a
"balance owing." By way of further answer, Slough has at all times
material to this civil action refused all of F&D's reasonable
requests for information and documentation so that F&D could
conduct a reasonable investigation into the validity of Slough's
2
claim.
10. Denied. There averments of this paragraph are
conclusions of law which do not require a response and are
therefore deemed denied.
WHEREFORE, Defendant Fidelity and Deposit Company of Maryland
demands that judgment be entered in its favor and against Plaintiff
Slough Flooring, Inc. and that Count One of Slough's Complaint be
dismissed with prejudice.
II. COUNT TWO-ACTION FOR BREACH OF BOND TERMS
11. F&D incorporates by reference the averments of its
answers to paragraphs 1 through 10 of Slough's Complaint.
12. Admitted in part, denied in part. It is admitted that a
true and correct copy of Slough's notice letter is attached as
Exhibit "D" to Slough's Complaint. It is denied that this letter
is the notice required by paragraph 4.1 of the bond. Because the
bond is in writing, its terms and conditions speak for themselves
and to the extent that the averments of this paragraph are
inconsistent therewith, those averments are denied. By way of
further answer, after reasonable investigation F&D is without
knowledge or information sufficient to form a belief as to the
truth of the remaining averments of this paragraph.
13. Denied. Because the Bond is in writing its terms and
conditions speak for themselves and to the extent that the
of this paragraph are inconsistent therewith, those
averments
averments are denied. By way of further answer, the Bond was
furnished to comply with the requirements of section 3(a) (2) of the
Public Works Contractors' Bond Law of 1967, 8 P.S. ~ 193(a) {2) .
The Bond provides in paragraph 13 that:
When this Bond has been furnished to comply with a
statutory or other legal requirement in the location
where the construction was to be performed, any provision
in this Bond conflicting with said statutory or legal
requirement shall be deemed deleted therefrom and the
provisions conforming to such statutory or other legal
requirement shall be deemed incorporated herein. The
intent is that this Bond shall be construed as a
statutory bond and not as a common law bond.
Accordingly, to the extent that paragraphs 4 and 6 of the Bond
conflict with the requirements of the Public Works Contractors'
Bond Law of 1967, those paragraphs are deemed deleted.
14. Denied. It is denied that F&D's 45 day period to respond
expired on December 4, 2003. To the contrary, F&D responded to
Slough's counsel's letter of October 15, 2003 by letter dated
October 27, 2003, from W. Glenn Speicher, Jr., Esquire, to Slough's
counsel. A true and correct copy of this letter is attached hereto
as Exhibit "A" and incorporated by reference herein. In this
letter, Mr. Speicher enclosed three proof of claim forms and
requested that Slough complete the forms "in as much detail as
possible on the face of the forms themselves with documentation
supporting your client's claim attached to each form .... " By
letter dated November 3, 2003, Slough's counsel refused to provide
the information and documentation requested in Mr. Speicher's
4
letter and therefore prevented F&D from gathering sufficient
information to comply with paragraph 6 of the Bond. A true and
correct copy of this letter is attached hereto as Exhibit "B" and
incorporated by reference herein. By way of further answer,
Slough's refusal to provide the information and documentation
requested in Mr. Speicher's letter, excused F&D from complying with
Paragraph 6 of the payment bond.
averments
15.
F&D incorporates by reference the
of its answer to paragraph 13 of Slough's Complaint.
Denied. The averments of this paragraph are legal
conclusions which do not require an answer and are therefore deemed
denied.
WHEREFORE, Defendant Fidelity and Deposit Company of Maryland
demands that judgment be entered in its favor and against Plaintiff
Slough Flooring, Inc. and that
dismissed with prejudice.
Count Two off Slough's Complaint be
NEWMATTER
16. The Complaint and each Count thereof
claim upon which relief can be granted.
17. Because Slough has a statutorily conferred
fails to state a
right of
action pursuant to the Public Works Contractors' Bond Law of 1967,
8 P.S. ~ 191-202, it does not have a common law right of action as
for breach of bond terms and Count I1 of its Complaint is legally
insufficient.
18. Slough's claim for breach of bond terms is legally
insufficient because the Bond was furnished to comply with the
requirements of section 3{a) (2) of the Public Works Contractors'
Bond Law of 1967, 8 P.S. ~ 193(a) (2). The Bond provides in
paragraph 13 that:
When this Bond has been furnished to comply with a
statutory or other legal requirement in the location
where the construction was to be performed, any provision
in this Bond conflicting with said statutory or legal
requirement shall be deemed deleted therefrom and the
provisions conforming to such statutcry or other legal
requirement shall be deemed incorporated herein. The
intent is that this Bond shall be construed as a
statutory bond and not as a common law bond.
Accordingly, to the extent that paragraphs 4 and 6 of the Bond
conflict with the requirements of the Public Works Contractors'
Bond Law of 1967, those paragraphs are deemed deleted and they do
not afford a basis for a claim as plead in Count II of Slough's
Complaint.
19. Slough's claim is barred in whole or in part by the
applicable statute of limitations.
20. Kamand's liability as principal is primary and F&D's
liability as surety is secondary, accordingly all of Kamand's
defenses, set-offs and counterclaims to Slough's claims inure to
F&D's benefit and F&D incorporates those defenses, set-offs and
counterclaims by reference.
21. Slough has refused all of F&D's reasonable requests for
information so that F&D could not investigate the validity of
Slough's claim and Slough's refusal to cooperate prevented and
therefore excused F&D from answering Slough"s claim within the time
and in the manner set forth in paragraph 6 of the Bond.
WHEREFORE, Defendant Fidelity and Deposit Company of Maryland
demands that judgment be entered in its favor and against Plaintiff
Slough Flooring, Inc. and that Slough's Complaint and all Counts
thereof be dismissed with prejudice.
Ellsworth, Carlton, Mixell & Waldman, P.C.
Robert T. Carlton, Jr.
Attorneys for Defendant
Fidelity and Deposit Company
of Maryland
January 14, 2004
VERIFICATION
I, Robert T. Carlton, Jr., state that I am counsel for
Defendant Fidelity and Deposit Company of Maryland ("F&D") in this
civil action. I am making this verification on behalf of F&D
because F&D's representatives are outside the jurisdiction of the
court and the verification of none of them can be obtained within
the time allowed for the filing of this pleading. The facts set
forth in the foregoing Answer and New Matter are true and correct
to the best of my knowledge, information and belief.
This verification is made subject to the penalties of 18
Pa.C.S. ~ 4904 relating to unsworn falsification to authorities.
Dated: January 14, 2004.
Robert T. Carlt6n, Jr.
JRH 06 2004 ll:5ORH HP LRSERJET 3200 800329810S p. 12
O Zulich NO~ Amel'ica
W. Glenn Speicher, Jr.
ZU RICH Senior Claims Counsel
Surety and Financial Claims
P.O. Box 17138
Baltimore, MD 21297-1138
Street: 3910 Keswick Road, 5tb Floor
Baltimore, MD 21211
Phone: 800-654-5855 Ext. 9
Fax: 800-329-6106
Email: w.glenn.speicher@zurichna.com
John G. Nlilalrovic, Esq.
Becldey & Madden
212 North Third St.
Ham. sburg, PA 17108-1998
October 27, 2003
Claim No.:
Bond No.:
Project:
Your Client:
638 0030465
Kamand Construction, Inc.
PAY 8515487
LeMoyne Middle School
Slough Floo~ing Inc.
Dear Mr. Milakovic:
This will identify the undersigned as a Senior Claims Counsel worldng for the Surety and Financial Claims
Unit of Zurich Nomh Am~ This unit has now taken over respomibility for all ~-bims handling in
connection with bonds written by Fidelity and Deposit Company of Ma..yland. Futme co~respundence in
connection w/th the above matter should be referred to my attention at the above ad&ess. In all
communications, please utilize the appropriate claim number
This will acknowledge receipt of your clienfs claim in the mount of $5,506.10 for hbor and/or materials
fl,mkhed m connection with the above referenced project involvi~-g Kamand Constmctiun, Inc. Th/s
may include retainage which may not yet be payable under the Con=act
You will please find enclosed three Proof of Claim fom~s for your use in documennng your clienfs claim
against our Bond. These forms should be completed in as much detail as possible on the face of the
forms themselves with documentation supporting your client's claim attached to each fo~m (i.e. two
complete sets of documentation). Documentation supporting your client's rl~im ill ta~s instance would
include copies of any subcontracts, signed purchase orders, signed invoices, signed delivery tickets, etc. In
addition, please provide the last date that your client's company either performed the work or supplied
mat~,ls claimed for on these pro}ects. Please note that these forms must be nota~Zed. Upon
completion, two of these forms should be returned m my attention; the third form is for your own
records.
Should you have any questions regarding this correspondence or the enclosed forms, please do not
hesitate m contact the undo'signed directly.
JRM 06 2004 ll:50RM HP LRSERJET 3~00
· Page 2
80032B6106
October 27, 2003
p.13
Please be advised that this action is taken at this llme, and these forms are released, without waiver of or
prejudice to any of the rights and defenses, past or present, known or unknown, which either FiSel;ty and
Deposit Company of Matyhnd or Kamand Consm~on, Inc. may have in this matter.
Vet/Truly Yours,
Zurich North America
Surety and Financial Chinas
For Fidelity & Deposit Company of Marylmd
W. Glenn Speicher, Jr.
Senior C:hi ~ms Couaset
Cc: Kammd Construction, Inc.
"JA~ 06 2004 ll:49RH HP LRSERJET 3200 8003296106 p. 11
BECKLEY & I~I~D DE N
51834
November 3, 2003
W. Glenn Speicher, Jr., Esquire
Senior Claims Counsel
Zurich North America
P.O. Box 17138
Baltimore, MD 21297-1138
Re: Claim No.: 6380030465
Principal: Kamand Construction, In~
Bond No.: PAY8515487
Project: Lemoyne Middle School
Claimant: Slou~h Flooring~ Inc.
Dear Mr. Speicher:
We are in receipt of your letter dated October 27, 2003, relative to the above-referenced
claim. In response to your letter, please be advised that we have already provided your company
with everything required by Paragraph 4. l of your payment bond, by virtue of our initial letter to
Fidelity dated September 29, 2003, and we are not required to provide the additional materials
requested in your letter.
Accordhag to Paragraph 6 of your payment bond, your company is supposed to pay
Slough promptly any undisputed mounts and, within 45 days of your receipt of our initial letter,
respond in writing to us by telling us the araoan~s that ~u'e tmdi~pated and fl~e basis, if any, for
challanging any disputed amount. Your October 27t~ letter does not comply with Paragraph 6 of
your payment bond and Slough has not received any payment from your company.
We shall proceed accordingly.
Very Ixuly yours,
BECKLEY & MADDEN
ELLSWORTH, CARLTON, MIXELL & WALDMAN,
BY: ROBERT T. CARLTON, JR., ESQ.
Attorney I.D. No.: 25050
1105 Berkshire Boulevard, Suite 320
Wyomissing, PA 19610
(610) 374-1135
P.e.
Attorneys for Defendant
Fidelity and Deposit Company
of Maryland
SLOUGH FLOORING, INC.
Plaintiff,
FIDELITY AND DEPOSIT
OF MARYLAND
Defendant.
COMPANY
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION-LAW
NO: 03-5L~92 CIVIL TERM
CERTIFICATE OF SERVICE
I, Robert T. Carlton, Jr., Esquire, oertify that on January
14, 2004, I caused a true and correct copy of the foregoing Answer
and new Matter to be served by first class mail upon:
John G. Milakovic, Esquire
Beckley & Madden
212 North Third Street
P.O. Box 11998
Harrisburg, PA 17108-1998
R~~~n, Jr.
SLOUGH FLOORING, INC.,
Plaintiff
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,
Defendant
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION-LAW
:
: NO. 03-5292 CIVIL TERM
;
:
PLAINTIFF'S PRELIMINARY OBJECTIONS TO PARAGRAPH 20 OF
DEFENDANT'S NEW MATTER
AND NOW comes Plaintiff ("Slough"), by and through its attorneys, Thomas A.
Beckley, Esquire, John G. Milakovic, Esquire, and Beckley & Madden, of counsel, and files
these preliminary objections to Paragraph 20 of thc New Matter contained in Defendant's
Answer to Slough's Complaint, and states as follows:
I. Motion To Strike for Failure To Conform To Rule of Court
1. Pa.R.Civ. P. 1019(a) requires that the "material facts on which a ... defense is based
shall be stated in a concise and summary form." See~4llen v. £ipson, 8 D & C 4th 390 (Lycoming
Co. 1990)(applying Rule 1019(a) to allegations in new matter and striking non-conforming
allegations).
2. In violation of Rule 1019(a), Paragraph 20 of Defendant's New Matter does not
contain any material facts nor are any material facts pleaded anywhere in Defendant's Answer
which would support the averments contained in Paragraph 20.
WHEREFORE, Slough respectfully requests that the Court strike Paragraph 20 of
Defendant's New Matter for failure to conform to Rule 1019(a).
IL Motion for a More Specific Pleading
3. A pleading, in order to be sufficiently specific, must at least inform the opposing party
of the issues to be met. See Yacoub v. Lehigh Valley Medical ,4ssociates, 805 A.2d 579, 588
(Pa. Super. 2002).
4. Contrary to the specificity rule, Paragraph 20 of Defendant's New Matter alleges only
that Defendant seeks to incorporate by reference "all of [its principal's] defenses, set-offs and
counterclaims to Slough's claims," without anywhere identifying what those alleged "defenses,
set-offs and counterclaims" are.
WHEREFORE, Slough respectfully requests that Defendant be required to file a more
specific pleading wherein Defendant sets forth exactly what, if any, alleged e~enses, set-offs
and counterclaims,, of Defendant's pnncipal Defendant is ass~--:- . .-. .
·~mng in mis action.
Dated:
Of Counsel
Respectfully submitted,
Beckley & Madden
212 North Third Street
P.O. Box 11998
Harrisburg, PA 17108
(717) 233-7691
Thomas A. Beckley
Attorneys for Slough
2
CERTIFICATE OF SERVICE
It is hereby certified that a copy of the foregoing document was this day served upon the
following persons in the manner below indicated.
FIRST CLASS MAIL
Robert T. Carlton, Jr., Esquire
Ellsworth, Carlton, Mixell & Waldman, P.C.
1105 Berkshire Boulevard
Suite 320
Wyomissing, PA 19610
Dated:
Jo~(f~ G. Milakovic
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please I i-~t th~ within matter for the next AIgn~,ent Court.
CAPTION OF CASE
(entir~ caption must be stated in
SLOUGH FLOORING, INC.,
( pi aintiff)
FID~/.TTY AND DEPOSIT CC~4PANY OF MARYLAND,
( D~fendant )
No. 03-5292 Civil - law
X~ 2003
State matter to be argued (i.e., plaintiff's motion for new trial, defendant's
d~m~=r to cu,%~l~nt, etc. ): Plaintiff's Preliminary Objections to Para-
graph 20 of Defendant's New Matter
2. Identify counsel who w4 ] ] argue case:
(a) for plaintiff: John G. Milakovic, Esquire
~ess: Beckley & Madden
212 N. 3rd St., P.O. Box 11998
Harrisburg, PA 17108-1998
(b) for defe~4~nt: Robert T. Carlton, Jr., Esquire
A~]~ress: Ellsworth, Carlton, Mixell & Waldman, P.C.
1105 Berkshire Blvd., Suite 320
Wyc~aissing, PA 19610
3. I w411 notify al l parties in writing within t~ days that tbJ~ e~e bas
been listed for ~t.
4. Argunent Court Date: March 24, 2004
tome-] for
ELLSWORTH, CARLTON, MIXELL & WALDMAN,
BY: ROBERT T. CARLTON, JR., ESQ.
Attorney I.D. No.: 25050
1105 Berkshire Boulevard, Suite 320
Wyomissing, PA 19610
(610) 374-1135
Poe.
Attorneys for Defendant
Fidelity and Deposit Company
of Maryland
SLOUGH FLOORING, INC. :
Plaintiff, :
FIDELITY AND DEPOSIT COMPANY :
OF MARYLAND :
Defendant. :
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION-LAW
NO: 03-5292 CIVIL TERM
NOTICE TO PLEAD
TO: John G. Milakovic, Esquire
Beckley & Madden
212 North Third Street
P.O. Box 11998
Harrisburg, PA 17108-1998
Attorneys for Plaintiff
You are hereby notified to file a written response
enclosed Amended New Matter within twenty (20) days from
hereof or a judgment may be entered against you.
to the
service
Ellsworth, Carlton, Mixell
& Waldman, P.C.
Robert T. Carlton, Jr.
Attorneys for Defendant
ELLSWORTH, CARLTON, MIXELL & WALDMAN,
BY: ROBERT T. CARLTON, JR., ESQ.
Attorney I.D. No.: 25050
1105 Berkshire Boulevard, Suite 320
Wyomissing, PA 19610
(610) 374-1135
Attorneys for Defendant
Fidelity and Deposit Company
of Maryland
SLOUGH FLOORING, INC. :
:
Plaintiff, :
FIDELITY AND DEPOSIT COMPANY :
OF MARYLAND :
:
Defendant. :
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION-LAW
NO: 03-5292 CIVIL TERM
ANS~'ERA~D AMENDED NEW MATTER
Defendant Fidelity and Deposit Company of Maryland ("F&D") by
it counsel, Ellsworth, Carlton, Mixell & Waldman, P.C., answers the
correspondingly numbered paragraphs of Plaintiff Slough Flooring,
Inc.'s ("Slough") Complaint as follows:
1. After reasonable investigation F&D is without knowledge or
information sufficient to form a belief as to the truth of the
averments of paragraph 1 of Slough's Complaint.
2. Admitted in part, denied in part. It is admitted that F&D
is a Maryland corporation. It is denied that F&D's offices are
located at 300 St. Paul Place, Baltimore, Maryland. F&D's offices
are now located at 3910 Keswick Road, Baltimore, Maryland.
3. Admitted.
4. After reasonable investigation F&D ts without knowledge or
information sufficient to form a belief as to the truth of the
averments of paragraph 4 of Slough's Complaint.
5. After reasonable investigation F&D is without knowledge or
information sufficient to form a belief as to the truth of the
averments of paragraph 5 of Slough's Complaint.
I. COUNT ONE-ACTION ON PAYMENT BOND
6. F&D incorporates by reference the averments of its answers
to paragraphs 1 through 5 of Slough's Complaint.
7. After reasonable investigation F&D is without knowledge or
information sufficient to form a belief as to the truth of the
averments of paragraph of Slough's Complaint.
8. After reasonable investigation F&D is without knowledge or
information sufficient to form a belief as to the truth of the
averments of paragraph 8 of Slough's Complaint.
9. Admitted in part, denied in part. It is admitted that
Slough has made demand and that F&D has refused to make payment.
After reasonable investigation F&D is without knowledge or
information sufficient to form a belief as to the truth of the
averments of paragraph 8 of Slough's Complaint that there is a
"balance owing." By way of further answer, Slough has at all times
material to this civil action refused all of F&D's reasonable
so that F&D could
validity of Slough's
requests for information and documentation
conduct a reasonable investigation into the
claim.
10. Denied. There averments of this paragraph are
conclusions of law which do not require a response and are
therefore deemed denied.
WHEREFORE, Defendant Fidelity and Deposit Company of Maryland
demands that judgment be entered in its favor and against Plaintiff
Slough Flooring, Inc. and that Count One of Slough's Complaint be
dismissed with prejudice.
II. COb-~T TWO-ACTION FOR BREACH OF BO~'D TERMS
11. F&D incorporates by
answers to paragraphs 1 through
12. Admitted in part,
reference the
10 of Slough's
denied in part.
averments
Complaint.
of its
It is admitted that a
inconsistent therewith, those averments are denied. By way of
further answer, after reasonable investigation F&D is without
knowledge or information sufficient to form a belief as to the
truth of the remaining averments of this paragraph.
13. Denied. Because the Bond is in writing its terms and
conditions speak for themselves and to the extent that the
averments of this paragraph are inconsistent therewith, those
true and correct copy of Slough's notice letter is attached as
Exhibit "D" to Slough's Complaint. It is denied that this letter
is the notice required by paragraph 4.1 of the bond. Because the
bond is in writing, its terms and conditions speak for themselves
and to the extent that the averments of this paragraph are
averments are denied. By way of further answer, the Bond was
furnished to comply with the requirements of section 3(a) (2) of the
Public Works Contractors' Bond Law of 1967, 8 P.S. § 193(a) (2).
The Bond provides in paragraph 13 that:
When this Bond has been furnished to comply with a
statutory or other legal requirement in the location
where the construction was to be performed, any provision
in this Bond conflicting with said statutory or legal
requirement shall be deemed deleted therefrom and the
provisions conforming to such statutory or other legal
requirement shall be deemed incorporated herein. The
intent is that this Bond shall be construed as a
statutory bond and not as a common law bond.
Accordingly, to the extent that paragraphs 4 and 6 of the Bond
conflict with the
Bond Law of 1967,
14. Denied.
expired on December
Slough' s counsel's
requirements of the Public Works Contractors'
those paragraphs are deemed deleted.
It is denied that F&D's 45 day period to respond
4, 2003. To the contrary, F&D responded to
letter of October 15, 2003 by letter dated
October 27, 2003, from W. Glenn Speicher, Jr., Esquire, to Slough's
counsel. A true and correct copy of this letter is attached hereto
as Exhibit "A" and incorporated by reference herein. In this
letter, Mr. Speicher enclosed three proof of claim forms and
requested that Slough complete the forms "in as much detail as
possible on the face of the forms themselves with documentation
supporting your client's claim attached to each form .... " By
letter dated November 3, 2003, Slough's counsel refused to provide
the information and documentation requested in Mr. Speicher's
4
letter and therefore prevented F&D from gathering sufficient
information to comply with paragraph 6 of the Bond. A true and
correct copy of this letter is attached hereto as Exhibit "B" and
incorporated by reference herein. By way of further answer,
Slough's refusal to provide the information and documentation
requested in Mr. Speicher's letter, excused F&D from complying with
Paragraph 6 of the payment bond. F&D incorporates by reference the
averments of its answer to paragraph 13 of Slough's Complaint.
15. Denied. The averments of this paragraph are legal
conclusions which do not require an answer and are therefore deemed
denied.
WHEREFORE, Defendant Fidelity and Deposit Company of Maryland
demands that judgment be entered in its favor and against Plaintiff
Slough Flooring, Inc. and that Count Two of Slough's Complaint be
dismissed with prejudice.
AMENDED NEWMATTER
Pursuant to Pa.R.C.P. 1028(c) (1), F&D asserts the following
Amended New Matter.
16. The Complaint and each Count thereof fails to state a
claim upon which relief can be granted.
17. Because Slough has a statutorily conferred right of
action pursuant to the Public Works Contractors' Bond Law of 1967,
8 P.S. ~ 191-202, it does not have a common law right of action as
for breach of bond terms and Count II of its Complaint is legally
insufficient.
18. Slough's claim
insufficient because the
requirements of
Bond Law of 1967, 8 P.S. § 193(a) (2).
paragraph 13 that:
for breach of bond terms is legally
Bond was furnished to comply with the
section 3(a) (2) of the Public Works Contractors'
The Bond provides in
When this Bond has been furnished to comply with a
statutory or other legal requirement in the location
where the construction was to be performed, any provision
in this Bond conflicting with said statutory or legal
requirement shall be deemed deleted therefrom and the
provisions conforming to such statutory or other legal
requirement shall be deemed incorporated herein. The
intent is that this Bond shall be construed as a
statutory bond and not as a common law bond.
Accordingly, to the extent
that paragraphs 4 and 6 of the Bond
requirements of the Public Works Contractors'
those paragraphs are deemed deleted and they do
for a claim as plead in Count II of Slough's
conflict with the
Bond Law of 1967,
not afford a basis
Complaint.
19. Slough's
applicable statute
20. Slough has
claim is barred in whole or in
of limitations.
refused all of F&D's reasonable
investigate the
to
part by the
requests for
validity of
prevented and
information so that F&D could not
Slough's claim and Slough's refusal cooperate
therefore excused F&D from answering Slough's claim within the time
and in the manner set forth in paragraph 6 of the Bond.
21. Kamand's liability as principal is primary and F&D's
6
liability as surety is secondary, accordingly all of Kamand's
defenses, set-offs and counterclaims to Slough's claims inure to
F&D's benefit and those defenses, set-offs and counterclaims are as
follows.
22. F&D avers upon information and belief that the work
performed by Slough was not acceptable to the School District.
23. As a result, the School District has not accepted
Slough's work, has not paid Kamand in full for Slough's work and
has assessed a backcharge against Kamand in an amount in excess of
the amount claimed by Slough.
24. By reason of the foregoing, and pursuant to 62 Pa.C.S.A.
~ 3931-3939 ("the Prompt Payment Act"), the amount claimed by
Slough is not justly due and owing to Slough and Kamand, and thus
F&D, is not obligated to pay Slough.
WHEREFORE, Defendant Fidelity and Deposit Company of Maryland
demands that judgment be entered in its favor and against Plaintiff
Slough Flooring, Inc. and that Slough's Complaint and all Counts
thereof be dismissed with prejudice.
Ellsworth, Carlton, Mixell & Waldman, P.C.
Robert . Carltoh, Jr.
Attorneys for Defendant
Fidelity and Deposit Company
of Maryland
7
VERIFICATION
I, Robert T. Carlton, Jr., state that I
Defendant Fidelity and Deposit Company of Maryland
civil action. I am making this
because F&D's representatives are
court and the verification of
am counsel for
("F&D") in this
verification on behalf of F&D
outside the jurisdiction of the
them can be obtained within
none of
the time allowed for the filing of this pleading. The facts set
forth in the foregoing Answer and Amended New Matter are true and
correct to the best of my knowledge, information and belief.
This verification is made subject to the penalties of 18
Pa.C.S. ~ 4904 relating to unsworn falsification to authorities.
Dated: February 20, 2004.
Robert T. Carlton,/ Jr.
2004 ll:SORH
W. Glenn Speicher, Jr.
ZUP. ICH Senior Claims Counsel
Surety and Financial Claims
P.O. Box 17138
Baltimore, MD 21297-1138
HP LRSER3ET ~200
8003296106
Street: 3910 Keswick Road, 5~" Floor
Baltimore, MD 21211
Phone: 800-654-5855 Ext. 9
Fax: 800-329-6106
Email: w.glenn.$peicher@zudchna.com
October 27, 2003
p.12
John G. Milakovic, Esq.
Beckley & Madden
212 Notth Third St.
Harrisburg, FA 17108-1998
Claim No.:
Bond Nh.:
Project:
Your Client:
638 0030465
Kamand Cnnsm~cdo~, Inc.
PAY 8515487
LeMoyne Middle School
Slough Flooring Inc.
Dear Mr. Milakovic:
· a Senior Claims Counsd working fo£ the Surety and Financial Claims
This will identify the unders~aed as
Unit of Ztmch North Arnica. This unit has now taken over responsibility for ~LI rl.lnas handling in
connection with bonds written by Fidelity and Deposit Company of Maryland. Future correspondence in
connection with the above matter should be referred to my artenlion at the above ad&ess. In all
communications, please utilize the appropriate claim number
This will acknowledge receipt of your client's claim in the amount of S5,506.10 for labor and/or materials
furnished in connection ~th the above referenced project involving Kamand Construction, Inc. This
may include retainage which may not yet be payable under the Contract
You vail please find enclosed three Proof of Claim foxms for your use in documenmag your clienfs claim
against our Bond. These lomas should be completed in as much detail as possible on the face of the
forms themselves ',:~rith documanmdon supporting your client's el,lin attached m each form (i.e. two
complete sets of documentation). Documemafinn supporting your client's claim ill t.his instance would.
include copies of any subcontracts, signed purchase orders, signed invoices, signed delivery tickets, etc. In
addition, please provide the Last date that your client's company either perfonmed the work or supplied
materials rl~inaed for on these projects. Please note that these forms must be notarized. Upon
completion, two of these forms should be returned to my attention; the third form is for your own
Skould you have :my questions regarding this correspondence or the enclosed forms, please do not
hesitate to contact the tm-dm:signed directly.
JRH 06 200~ ll:50AH HP LRSER~ET 3~00
· Page 2
8003296106
October 27, 2003
p.13
Please be advised that ~ action is takm at this time, and these forms are ~eased, without waiver of or
prejudice to any of the rights and defenses, past or present, known or unknown, which either Pid~;ty and
Deposit Company of Maryland or Kamand Consrsuc6on, Inc. may have in this matter.
Vev/TrulyYourg
Zurich North A_,rerici
Surety am] Finandal Claims
For F;&li~y & Deposit Gompmy of Mar~d
W. Glenn Spelt-her, Jr.
Senior Chlms Counsel
Cc: Kammd Construction, Inc.
JRM 06 2004 ll:4BRM HP LRSERJET 3200 8003236106 p.11
November 3, 2003
W. Glenn Speicher, Jr., Esquire
Senior Claims Counsel
Zurich North America
P.O. Box 17138
Baltimore, MD 21297-1138
Re: Claim No.: 6380030465
Principal: Kamand Construction, Inc.
Bond No.: PAY8515487
Project: Lemoyne Middle School
Claimant: Slough FIoorinm Inc.
Dear Mr. Speicher:
We are in receipt of your letter dated October 27, 2003, relative to the above-referenced
claim. In response to your letter, please be advised that we have already provided your company
with everything required by Paragraph 4.1 of your payment bond, by virtue of our initial letter to
Fidelity dated September 29, 2003, and we are not required to provide the additional materials
requested tn your letter.
Ac¢ordhag to Paragraph 6 of your payment bond, your company is supposed to pay
Slough promptly any undisputed amounts and, within 45 days of your receipt o£our initial letter,
respond in writing to us by telling -as the amounxs that a~'c ta~di~puted and the basis, if ax~y, for
ehaDenging any disputed amount. Your October 27~ letter does not comply with Paragraph 6 of
your payment bond and Slough has not received any payment from your company.
We shall proceed accordingly.
Very Ixuly yours,
BECKLEY & MADDEN
ELLSWORTH, CARLTON, MIXELL & WALDMAN,
BY: ROBERT T. CARLTON, JR., ESQ.
Attorney I.D. No.: 25050
1105 Berkshire Boulevard, Suite 320
Wyomissing, PA 19610
(610) 374-1135
P.e.
Attorneys for Defendant
Fidelity and Deposit Company
of Maryland
SLOUGH FLOORING, INC. :
Plaintiff, :
FIDELITY AND DEPOSIT COMPANY :
OF MARYLAND :
:
Defendant. :
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION-LAW
NO: 03-5292 CIVIL TERM
20,
and Amended New Matter
CERTIFICATE OF SERVICE
I, Robert T. Carlton, Jr., Esquire, certify that on February
2004, I caused a true and correct copy of the foregoing Answer
to be served by first class mail upon:
John G. Milakovic, Esquire
Beckley & Madden
212 North Third Street
P.O. Box 11998
Harrisburg, PA 17108-1998
Robert T. Carl~on, Jr.
SLOUGH FLOORING, INC.,
Plaintiff
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION-LAW
: NO. 03-5292 CIVIL TERM
PLAINTIFF'S REPLY TO AMENDED NEW MATTER OF DEFENDANT
AND NOW comes Slough Flooring, Inc. ("Slough"), by and through its attorneys,
Thomas A. Beckley, Esquire, John G. Milakovic, Esquire, and Beckley & Madden, of counsel,
and files this Reply to the Amended New Matter of Defendant ("Fidelity") contained in
Fidelity's Answer to Slough's Complaint, and responds to each of the numbered paragraphs in
said Amended New Matter as follows:
16. Denied. This Paragraph of Fidelity's Amended New Matter consists of a conclusion
of law to which no further reply is required.
17. Denied. This Paragraph of Fidelity's Amended New Matter consists of a conclusion
of law to which no further reply is required. Nonetheless, by way of further reply, it is well
settled that a public payment bond may, as here, provide a claimant with greater rights and
remedies than provided by statute.
18. Denied. This Paragraph of Fidelity's Amended New Matter consists of a conclusion
of law to which no further reply is required. Nonetheless, by way of further reply, it is denied
that Paragraphs 4 and 6 of the payment bond at issue in this case conflict with any provision of
the Bond Law. Further, it is well settled that a public payment bond may, as here, provide a
claimant with greater rights and remedies than provided by statute.
19i Denied. This Paragraph of Fidelity's Amended New Matter consists of a conclusion
of law to which no further reply is required.
20. Denied. To the contrary, Slough complied in total with its obligations pursuant to
Paragraph 4.1 of the Bond. The averments of Paragraph 12 of Slough's Complaint in this case
are hereby adopted by reference and incorporated herein.
21. Denied. This Paragraph of Fidelity's Amended New Matter consists of a conclusion
of law to which no further reply is required. Nonetheless, by way of further reply, Fidelity has
waived any fight it may have had to assert the defenses, set-offs, and counterclaims of its
principal, by Fidelity's failure and refusal to comply with its obligations under Paragraph 6 of the
Bond. The averments of Count II of Slough's Complaint in this case are hereby adopted by
reference and incorporated herein.
22. After reasonable investigation, Slough is without knowledge or information
sufficient to form a belief as to the truth of the matters asserted. By way of further reply, Fidelity
has waived any defense based upon such matters.
23. After reasonable investigation, Slough is without knowledge or information
sufficient to form a belief as to the truth of the matters asserted. By way of further reply, Fidelity
has waived any defense based upon such matters.
24. Denied. This Paragraph of Fidelity's Amended New Matter consists of a conclusion
of law to which no further reply is required. By way of further reply, Fidelity has waived any
defense based upon such matters. Moreover, the cited statute provides only that payments
wrongly not made thereunder may expose the contractor to interest, penalties, and attorneys' fees
and costs; the statute does not supercede contractual provisions for when payment is due. In this
regard, in the present case, the subcontract between Slough and Fidelity's principal does not
2
contain a provision making payment by the owner to Fidelity's principal a condition precedent to
payment of Slough. Finally, Fidelity's principal never provided Slough with the statutorily-
required notice of deficiency item and, accordingly, any right to withhold Slough's money has
been waived.
WHEREFORE, Slough continues to demand judgment in its favor and against Fidelity
as more fully set forth in Slough's Complaint in this matter.
Dated:
Of Counsel
Beckley & Madden
212 North Third Street
P.O. Box 11998
Harrisburg, PA 17108
(717) 233-7691
Respectfully submitted,
Thomas A. Beckley
/J~an G. Milakovic
Attorneys for Slough
?19 255 2819 P.~2
SLOUGH FLOORING,
05-89-2004 ~4:06PM
TOTAL P.02
CERTIFICATE OF SERVICE
It is hereby certified that a copy of the foregoing document was this
following persons in the manner below indicated.
day served upon the
FIRST CLASS MAIL
Robert T. Carlton, Jr., Esquire
Ellsworth, Carlton, Mixell & Waldman, P.C.
1105 Berkshire Boulevard
Suite 320
Wyomissing, PA 19610
Dated:~/t ~
SLOUGH FLOORING, INC.,
Plaintiff
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,
Defendant
: IN THE COURT ,OF COMMON PLEAS OF
: CUMBERLAND COLrNTY, PENNSYLVANIA
:
: CIVIL ACTION-LAW
:
: NO. 03-5292 CIVIL TERM
PRAECIPE
TO THE PROTHONOTARY:
Please mark the above-captioned matter settled, discontinued and ended.
Dated: April 19, 2004
Of Counsel
Beckley & Madden
212 North Third Street
P.O. Box 11998
Harrisburg, PA 17108
(717) 233-7691
Respectfully submitted,
Thomas A. Beckley ~
akovic
Attorneys for Plaimiff
CERTIFICATE OF SERVICE
It is hereby certified that a copy of the foregoing document was this day served upon the
following persons in the manner below indicated.
FIRST CLASS MAIL
Robert T. Carlton, Jr., Esquire:
Ellsworth, Carlton, Mixell & Waldman, P.C.
1105 Berkshire Boulevard
Suite 320
Wyomissing, PA 19610
Dated:
J~G. Milakovic