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HomeMy WebLinkAbout03-5346EASY DOES IT DRYWALL, 1NC., Plaintiff VS. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED 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 persomdly 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 lc, se money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU' CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 1701.3 Telephone: (717) 249-3166 EASY DOES IT DRYWALL, FtqC COMPLAIi~/T / SEPTEMBER 5, 2003 / DISK 62 EASY DOES IT DRYWALL, INC., Plaintiff VS. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW comes Easy Does It Drywall, Inc., by and through its counsel, Michael L. Bangs, Esquire, and in support thereof files the following Complaint: 1. Plaintiff is EASY DOES IT DRYWALL, INC., a Pennsylvania corporation, with its principal place of business at 5263 Terrace Road, Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant is FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Maryland corporation authorized to do business in Pennsylvania, with its principal place of business at Post Office Box 1227, Baltimore, Maryland, 21203. 3. On or about November 9, 2000, Plaintiffentered into a contract with Kamand Construction, Inc. ("Kamand") to perform certain work on the East Pennsboro High School Construction Project ("Project"). Attached hereto and marked as Exhibit A is a true and correct copy of the subcontract agreement. 4. Plainfiffperformed certain drywall work on the Proje, ct and billed Kamand for the work performed. 5. The total amount due on the contract, with additions, is $329,706.05. Kamand has paid $309,552.85 leaving a balance due Plaintiff of $20,153.20. Attached hereto and marked as EASY DOES IT DRYWALL, INC COMPLAINT / SEPTEMBER 5, 2003 / DISK 62 Exhibit B is a true and correct reconciliation of invoices submi~ted and payments made on the Project. 6. Plaintiff made repeated demands to Kamand to pay the outstanding balance in full. 7. Kamand has recently filed bankruptcy and Plaintiff is unable to collect the amounts due and owing from Kamand. 8. Defendant provided a certain payment bond to secure payment to all entities who provided labor and material used on the Project. Attached hereto and marked as Exhibit C is a true and correct copy of the payment bond. 9. Plaintiff made a demand upon the Defendant to make payment of the amounts due and owing Plaintiff on the Project by Kamand in accordance with the terms of the payment bond. Attached hereto and marked as Exhibit D is a true and correct copy of the demand. 10. Defendant has failed or refused to make payment on the claim. 11. Defendant has breached its duty to provide payment under the payment bond on the Project as a result of its failure to make the payment for the goo,ds and materials supplied by Plaintiff on the Project. 12. Defendant has an obligation under the payment bond to make payment since Kamand, by filing bankruptcy, will not be paying Plaintiff for the work performed on the Project. 13. Plaintiff has been damaged in the amount of $20,153.20 as a result of the failure of Defendant to make payment on the payment bond and in accordance with its terms. EASY DOES IT DRYWALL, INC. COMPLAINT / SEPTEMBER 5, 2003 / DISK 62 WHEREFORE, Plaintiff demands judgment in the amount of $20,153.20, plus interest plus costs of suits. The amounts due and owing are within the arbitration limits. Respectfully submitted, MICI~AEL L. BANGS Attorney for Plaintiff 302 South 18th Street Camp Hill, PA 17011 (717) 730-7310 Supreme Court I13, #41263 EASY DOES IT DRYWALL, ][NC COMPLAFNT / SEPTEMBER 5, 2003 / DISK 62 VERIFICATION LORRAINE R. FLEMING, being duly sworn according to law, deposes and says that she is the President of Easy Does It Drywall, Inc., a Pennsylva~da corporation, and that as such officer, she is authorized to make this Verification on its behalf and that the facts set forth in the foregoing Complaint are tree and correct to the best of her knowledge, information and belief, and further understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. EASY DOES IT DRYWALL, 1NC. BY: /? ' LORRAINE R. FLEMING ,,~ President ~] 4 EXHIBIT A Subcontract Agreement Michael P, Kadllak President CEO William J, Manna Executive Vice President CONSTRUCTION, INC. J, Michael Rutherford Vice President David M, Suder Vice President STANDARD FORM OF AGREEMENT BETWEEN CONTRA CTOR AND SUB CONTIL4 CTOR AGREEMENT made this 9th day of November, 2000 BETWEEN the Contractor: Kamand Construction, Inc. 203 Lynndale Court Mechanicsburg, PA 17050 717-691-9350 Phone 717-691-9790 Fax And the Subcontractor: Easy Does It Dndwall' ~r~ · 5263 Terrace Road Mechanicsburg, PA 17055 Jeff Flemming - Contact 717-975-9795 Phone 717-737-0697 Fax With the Owner: East Pennsboro Area School District 98 South Enola Drive Enola, PA 17025-2796 Dick Burgett - Contact 717-909-5636 Phone For the following project: Contract No.:00094 - SC23 East Pennsboro High School Additions and Alterations Which Contract is hereinafter reJ~rred to as the Prime Contract a~td which provides for the furnishing of labor, materials, equipment, and services in connection with the construction of the project. A copy of the Prime Contract, consisting of the Agreement Between Owner and Contractor (from which compensation amounts may be deleted) and the other Contract Documents enumerated therein has been made available to the Subcontractor. The Contract Documents are available for review by the Subcontractor at all reasonable times at the office of the Con tractor. The Architect for the Project is: Gilbert Architects 626 North Charlotte Street Lancaster, PA 17603 Greg Grissinger - Field Contact John Pndor- Office Contact 717-291-1077 Phone 717-392-3923 Fax 203 Lynndale Court, Mechanicsburg, Pennsylvania 17050 Phone [717) 691 -9350 -:. Fax (717) 691-9790 The Contractor and the Subcontractor Agree as follows: tw~d~ not included Install suspension systems for plaster~dry,vail ceilings Install wire lath for plaster at detailed areas only with partition type-~ Install gypsum lath (sheetrock) for plaster at detailed areas only with partition type~-- Insta. ll~tk~(~kcoat plaster wall finish two coat veneer plaster ~- Install ~kt~t>(~l~kcoat plaster ceiling finish two coat veneer plaster~ Install~re~:(g)<coat plaster soffits two coat veneer plaster-- Patch and repair existing plaster as shown on drawings Install metal furring channels Install structural metal stud.framing Install non-toad bearing metal smd.framing Install metal bracing as required Install bulkhead.framing Install metal stud soffits framing Install light gauge metal stud overhang~facade framing Install 5/8'fire code drywall sheeting, taped, and finished Install 3 W' sound bart insulation in metal stud framing Install 6~ sound bart insulation in metal studd framing Install 3 Vd' Kraft faced fiberglass insulation in metal stud framing Patching not detailed on finish drawings by Kamand Construction Have materials delivered when required. No storage is available on the job-site. If delivery 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 Clean up of related debris to centrally located locations. Kamand to remove debris from centrally located locations to dumpster. ~ ~. ~ d- Bi-weekly drawn for the first ninety (.~) days - 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 Otoner and the £3ntractor and the other Contract Documents enumerated therein; (3) Modifications issued subsequent to the execution of this Agreement between the Otoner and Contractor, whether before or after the execution of this Agreement; (4) other documents listed in Article 16 of this Agreement; and (5) Modifications to this Subcontract issued after execution of this Agreement. These fornt tlu~ 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 integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. An ,',numeration of the Subcontract Documents, other than Modifications issued subsequent to the execution of this Agreemen t, 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 Construction, current as of the date of this Agreement. The Contractor and the Subcontractor Agree as follows: Layout Install suspension systems for plaster/drywall ceilings Install wire lath for plaster Install g~fpsum lath (sheetrock) for plaster Install three (3) coat plaster wall finish Install three (3) coat plaster ceiling finish Install three (3) coat plaster soffits Patch and repair existing piaster as shown on drawings Install metal furring channels Install structural metal stud framing Install non-load bearing metal stud framing Install metal bracing as required Install bulkhead framing Install metal stud soffits framing Install light gauge metal stud overhang/facade framing Install 5/8'fire code d~fwall sheeting, taped, and finished Install 3 ~, sound bart insulation in metal stud framing Install 6' sound batt insulation in metal studd framing Install 3 ¼' Kraft faced fiberglass insulation in metal stud framing Patching not detailed on finish drawings by Kamand Construction Have materials delivered when required. No storage is available on the job-site. If deliver~d 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 Clean up of related debris to centrally located locations. Kamand to remove debris from centrally located locations to dumpster. ARTICLE1- 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 Conl~ractor, whether before or after the execution of this Agreement; (4) other documents listed in Article 16 of this Agreement; and (5) Modifications to this Subcontract issued after 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 integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Subcontract Documents, other than Modifications issued subsequent to the execution of this Agreement, appears in Article 16. 1.2 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 Construction, current as of the date of this Agreement. 2 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 shall be furnished copies of the Subcontract Documents upon request, but the Contractor may charge the Subcontractor for the reasonable cost of reproduction. 1.5 The Subcontractor represents and agrees that it has carefully examined the nature, locality, and site of the work and the conditions and difficulties under which the work is to be 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 Contractor immediately and request such clarifications and shall conform to the same without extra compensation. ARTICLE 2 - MUTUAL RIGHT AND RESPONSIBILITIES 2.1 The Contractor and Subcontractor shall be mutually bound by the terms of this Agreement and, to the extent that the provisions of the edition of AIA Document A201 current as of the date of this Agreement apply to this Agreement pursuant to Paragraph 1.2 and provisions of the Prime Contract apply to the work of this Subcontractor, the Contractor sludl 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 Owner 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 Agreement shall govern. 2.2 The Contractor may require the Subcontractor to enter into agreements with Sub- subcontractors performing portions of the work of this Subcontract by which the Sub- subcontractor is bound to the Subcontractor, to the extent of the work to be performed by the Sub-subcontractor, to the same extent the Subcontractor is bound to the Contractor, and by which tim Sub-subcontractor assumes all of the obligations and responsibilities that the Subcontractor assumes herein. ARTICLE 3 - CONTRACTOR 3.1 SERVICES PROVIDED BY THE CONTRACTOR 3 3.1.1 The Contractor shall cooperate with the Subcontrac~!or in scheduling and performing the Contractor's work to avoid conflicts or interference in the Subcontractor' s work and shall expedite written responses to submittals made by the Subcontractor in accordance with Paragraph 4.1 and Article 5. As soon as practicable after execution of this Agreement, the Contractor shall provide the Subcontractor copies of the Contractor's construction 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. 3.1.2 The Contractor shall endeavor to provide suitable areas for storage of the Subcontractor' s materials and equipment during the course of the work. 3.~.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 instructions 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 notify its employees are being used on the site by the Contractoi; a subcontractor, or anyone directly or indirectly employed by them (other than the Subcontractor), the Contractor shall, prior to harmful exposure of the Subcontractor' s employees 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 lnj or contributed to by the Subcontractor or any person or entity 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 cahlsed delays. Subcontractor shall further be responsible for actual damages to tim Contractor caused or contributed to by delay caused by the Subcontractor or any person or entifld 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 carnj ohit tim work in accordance with this Agreement and fails within three working days after receipt of written notice from the Contractor to commence and continue correction of such default or neglect with diligence and promptness, the Contractor may, and with prejudice to any other remedy 4 the Contractor may have, make good such deficiencies and may deduct the reasonable cost thereof from the payments then or thereafter due the Subcontractor. ARTICLE 4 - SUBCONTRACTOR 4.1 EXECUTION AND PROGRESS OF WORK 4.1.1 The 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 Ozoner' s own forces. The Contractor sJ~ll 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 time of the performance, the completion date for Subcontractor's work shall be extended. Such extension shall be Subcontractor's sole and exclusive remedy and Subcontractor shall have no claim against the Contractor. 4.1.2 The Subcontractor shall promptly submit within ten (10) days of receipt of this agreement ten (10) copies of Shop Drawings, Product Data, Samples and similar submittals required by the Subcontract Documents with reasonable promptness and in such sequence as to cause no delay in the work or in the activities of the Contractor or other subcontractors. 4.1.3 The Subcontractor shall submit to the Contractor a schedule of values allocated to the various parts of the work of this Subcontract, aggregating the Subcontract Sum, made out in such detail as the Contractor and Subcontractor may agree upon or as required by the Owner, and supported by such evidence as the Contractor may require. In applying for payment, the Subcontractor shall submit statements based upon this schedule. 4.1.4 The Subcontractor shall furnish to the Contractor periodic progress reports on the work of this Subcontract as mutually agreed, including information on the status of 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 authorihd 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 Contract. 4.1.6 The Subcontractor shall pay for all materials, equiFment, and labor used in conne, ction with the performance of this Subcontract through the period covered by prewous payments received from the Contractor, and shall furnish satisfactory evidence, when requested by the Contractor, to verif~y compliance with the above requirements. Upon request, Subcontractor shall furnish releases and lien waivers. 5 4.1.7 The Subcontractor shall take necessary 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 work 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 fees, licenses and inspections necessary for proper execution and completion of the Subcontractor's work, the furnishing of which is required of the Contractor by the Prime Contract. 4.2.2 The Subcontractor shall comply with Federal, state and local tax laws, Social Security Acts, Unemployment Compensation Acts and Worker's Compensation Acts insofar as applicable to the performance of this Subcontraot. 4.3 SAFETY PRECAUTIONS AND PROCEDURES 4.3.1 The Subcontractor shall take reasonable safety precautions with respect to performance of this Subcontract, shall comply with safety measures initiated by the Contractor, and with applicable laws, ordinances, rules, regulations, and orders of public authorities for the safety of persons 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 ora type of which an empk~yer is required by law to notifid its employees are being used on the site by the Subcontractor, the Subcontractor' s Sub- subcontractors 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 che~nical 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, i~cluding but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Subcontractor, the Subcontractor shall, upon recognizing, the condition, immediately stop work in the 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 6 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 fullest extent permitted by law, the Contractvr shall indemnij5d and hold harmless the Subcontractor, the Subcontractor' s Sub-subcontractors, 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 Work in the affected area if in fact the material or substance presents the risk of bodily inju~d or death as described in Subparagraph 4.3.3. and has not been rendered harmless, provided that such claim, damage, loss or expet,tse 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 to clean up as provided in the Subcontracts Documents, in the sole opinion of the Contractor, the Contractor may charge the Subcontractor for the SubconlZactor' 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 furnished under this Subcontract will be of good quality and new unless otherwise required or permitted by the Subcontract Documents, that the work of this Subcontract will be free from defects not inherent in the quality required or permitted, and that the work will conform to the requirements of the Subcontract Documents. Work not conforming to these requirements,, including substitutions not properly approved and authorized, may be considered defective. The 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 by the Subcontract Documents. 4.6 INDEMNIFICATION 4.6.1 To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the Owner, Contractor, Architect, Architect's consultants, and agents, and employees of any of them from and against claims, damages, losses, and expenses, including, but not limited to attorney's fees, arising out Cf or resulting from performance 7 of the Subcontractor' s work under this Subcontract, prowided that any such claim, damage, loss or expense is attributable to bodily inju~d, sickness, disease or death, or to injury 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 indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce other rights or obligations of indemnity, which would otherwise exist as to a party or person described in this Paragraph 4.6 4.6.2 In 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 type 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 indemnid~ding 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 4.7.1 If the Contractor does not pay the Subcontractor through no fault of the Subcontractor, within seven days from the time payment should be made as provided in this Agreement, the Subcontractor may, without prejudice to any other available remedies, upon seven additional days' written notice to the Contractor, stop the work of this Subcontract until payment of the amount owning has been received. Notwithstanding anything to the contrary, the receipt of payment by the Contractor from the Owner shall be a condition precedent for payment to the Subcontractor by the Contractor unless the Owner's failure to have made timely payment shall have been caused exclusively by the Contractor. ARTICLE 5 - CHANGES IN THE WORK 5.1 The Owner may make changes in the work by issuing Modifications to the Prime Contract. Upon receipt of such a Modification issued subsequent to the execution of the Subcontract Agreement, the Contractor shall promptly notifid the Subcontractor of the Modification. Unless otherwise directed by the Contractor, the Subcontractor shall not thereafter order materials or perform 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 issued subsequent to the execution of this Agreement, the Subcontract sum and the Subcontract time being adjusted accordingly. The Subcontractor, prior to the commencement of such changed or revised work shall submit promptly to the Contractor written copies ora claim for adjustment to the Subcontract sum 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 tile Contractor while suc,~ 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 which 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 t,~ permit the Contractor to satisfid the requirements of the Prime Contract. Such claims shall be received by the Contractor not less than two working days preceding the time by which the Contractor's claim must be made. Failure of the Subcontractor to make such a timely claim shall bind the Subcontractor to the same consequences 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 shall be a condition precedent to the right of the Subcontractor to receive payment from the Contractor for such costs, damages or claims. ARTICLE 6 - MEDIATION AND ARBITRATION 6.1 MEDIATION 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, slmll be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either parted. 6.1.2 The parties shall endeavor to resolve their claims ~! mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. Request for mediation shall be filed in writing with the other pari~j to this Subcontract and the American Arbitration Association, Philadelphia office. ?[he 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 equitabi'e proceedings, which shall be stayed pending mediation for a period of 60 days from the date of fiting, unless stayed for a longer period by agreement of the parties or court order. 6.1.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in Harrisburg, Pennsylvania. Agreements reached in mediation shall be enforceable as settlement agreements 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 be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industnj Arbitration Rules of the American 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 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 by 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 question o f 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 employee, the Architect's consultant or an employee or agent of any of them. This agreement to arbitrate and any other written agreement to arbitrate with an additional person or persons reJ~rred 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 pearing 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 ASSIGNi~4ENT 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 longe, r. In the event of such 10 termination by the Subcontractor for any reason which is not the fault of the Subcontractor, Sub-subcontractor, or their agents or employees or other persons performing portions of the work under contract with the Subcontractor, the Subcontractor shall be entitled to recover from the Contractor payment for work executed. 7.2 TERMINATION BY THE CONTRACTOR 7.2.1 If the Subcontractor persistentIy or repeatedly fails or neglects to carry out the work in accordance with the Subcontract Documents or otherwise to perform in accordance with this Subcontract and fails within seven days after receipt of written notice to connnence and continue correction of such default or neglect with diligence and promptness, the Contractor may, without prejudice to an!/other remedy the Contractor may have, terminate the Subcontract and finish the Subcontractor' s work by whatever method the Contractor may deem expedient. If such expense and damages exceed such unpaid balance, the Subcontractor shall pay the difference to the Contractor. In addition 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. 7.2.2 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 necessand, or that the Contractor :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-subcontracts and purchase orders and enter into no further Sub-subcontracts and purchase orders. Z2.4 In case of such termination for the Owner's convenience, the Subcontractor shall be entitled to receive payment for work executed, and cosls 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 Subcontractor may be entitled to an equitable adjustment of the Subcontract time and Subcontract sum, if Contractor has received payment by ~!he Owner for such suspension. 7.3.2 An adjustment shall be made for increases in the Subcontract time and Subcontract sum, including profit on the increased cost o. f performance, caused by suspension, delay, or interruption. No adjustment shall be made to the extent: 11 1. That performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Subcontractor is responsible; 2. that an equitable adjustment is made or denied under another provision of this Subcon tract. 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 the Prime Contract and to the prior rights of the surety, 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 than 30 days, the Subcontractor' s compensation may be equitably adjusted. Z4.2 The Subcontractor shall not assign the work of this Subcontract without the written consent of the Contractor, nor subcontract the w~le of this Subcontract without the written consent of the Contractor, nor further 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 Subcontractor shall execute the following portion of the work described in the Subcontract Documents, including all labor, materials, equipment, services and other items required to complete such portion of the work, exce~vt to the extent specifically indicated in the Subcontract Documents to be the responsibility of others. ARTICLE 9 - DATE OF COMMENCEMENT AND SUBTANTIAL 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 dif~rent 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 has commenced visible work at the site under the Prime Contract, the Subcontractor shall notifij t~ Contractor in writing not less than five (5) days before commencing the Subcontractor s work to permit the timely filing of mortgages, mechanic's liens and other security interests. 9.3 Tim Work of This Subcontract shall be substantially completed not later than August Ist, 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. 12 9.5 No extension of time will be valid without the Contractor's written consent aJ~er claim made by the Subcontractor in accordance with Para. graph 5.3. ARTICLE 10 - SUBCONTRACT SUM 10.1 The Contractor shall pay the Subcontractor in current funds for performance of the Subcontract the Subcontract Sum of Three Hundred Thirty Four Thousand Dollars ($334,000.00), subject to additions and deductions as provided in the Subcontract Documents. 10.2 The Subcontract Sum is based upon the following ailternates, if any, which are described in the Subcontract Documents and have been accepted by the Owner and the Contractor. A.2 A.7 A.8 A.11 A.14 10.3 Unit prices, if any, are as follows: N/A ARTICLES 11 - PRO GRESS 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 Docurrutnts. Unless the Contractor provides the Owner with a payment bond in the full penal sum of the Contract Sum, payments received by the Contractor and Subcontractor J'or work properly performed by their contractors and suppliers shall be held by 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 shall require money to be placed in a separate account and not commingled with money of the Contractor or Subcontractor, shall create any fiduciand 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 punit:ive damages against the Contractor or Subcontractor for breach of the requirements of this provision. Acceptance of periodic progress payments by the Subcontractor shall 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 fao: 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: Paynumt shall be made within seven 13 (7) days after receipt of payment from the Owner by the Contractor. Subcontractor shall submit its application for payment monthly or pursuant to a schedule established by Contractor. Receipt of payment by Contractor from Owner shall be a condition precedent to the right of Subcontractor to receive payment unless failure to have received payment shall be solely caused by fault of Contractor. 11.3 If an application for payment is received by the Contractor after the application date fixed above, the Subcontractor' s work covered by it shall be included by the Contractor in the next Application for Payment submitted to the Architect. 11.4 Each application for payment shall be based upon the most recent schedule of values submitted by the Subcontractor in accordance toith the Subcontract Documents. The schedule of values shall allocate the entire Subcontract sum among the various portions of the Subcontractor' s work and be prepared in such form and supported by such data to substantiate its accuracy as the Contractor may required. This schedule, unless objected to by the Contractor, shall 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. 11.6 Subject to the provisions of the Subcontract Docu~,,nts, the amount of each progress payment shall be computed as follows: Payment within seven (7) days of payment by the owner. 11.6.1 Take that portion of the Subcontract sum properly allocable to completed work as determined by multiplying the percentage completion of each portion of the Subcontractor' s work by the share of the total Subcontract sum allocated to that portion of the Subcontractor's work in the schedule of values, less 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 payment; 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. 14 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 the Owner actually has withheld payment from the Contractor. 11.7 Upon the partial or entire disapproval by the Contractor of the Subcontractor' s application for payment, the Contractor shall provide w~;tten 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. I 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 A~chitect of the certificate for payment covering such substantially completed work, the Contractor shall, to the full extent allowed in the Prime Contract, make payment to the Subcontractor, deducting any 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 full release ofretainage is allowed under the Prime Contract for the Subcontractor's work prior to the completion of the entire project. If the Prime Contract does not allow for a full release of retainage, then such payment shall be an amount which, when added to previous payments to the Subcontractor, will reduce the retainage on the Subcontractor' s substantially completed work to the san~,, percentage of retainage as that on the Contractor's work covered by the certificate. Payment to the Contractor by the Owner shall be a condition precedent to the right of the Subcontractor to receive payment. Payment to the Subcontractor shall no constit,~te 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 Subcontractor's completed work, and the Contractor has received payment from the Owner. Payment to the Contractor by the Owner shall be a condition precedent to the right of the Subcontractor to receive final payment unless failure of Contractor to receive payment is solely the fault of the Contractor. Final payment slmll be made ten (10) days after receipt of same by the Contractor from the Owner. ~2.2 Before issuance of the final payment, the Subcontractor, if required, shall submit evidence satisfactory to the Contractor that all payrolls, bills for materials and equipment, and all known indebtedness connected with the Subcontractor' s work have been satisfied. Acceptance of final payment by Subcontn~ctor shall constitute a waiver of 15 any and all claims against the Contractor, Owner, or Sun;ry. Subcontractor shall pursue a general release and final 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 types of coverage and limits of liability coverages in the forms and limits as set forth in the Owner-Contractor Agreement or such limits as set forth below, whichever is greater: Commercial General Liability, including coverage for Premise-Operations, Independent Contractors' Protective, Products-Completed Operations, Contractual Liabilit~d, Personal Injury, and Broad Form Property Damage (including 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 shall be endorsed to have the General Aggrega~!e apply to this project only. Products and Completed Operations insurance shall 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. Automobile Liabilit~j (owned, non-owned and hired vehici!es) 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. ~3.2 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 aJter final payment to the Subcontractor, whichever is later. ~3.3 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 Ires been given to the Contractor. If any of the foregoing insurance coverages are required to remain in force after final payment and are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with 16 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 tJ~ Subcontractor' s information and belief. 13.4 The Contractor shall furnish to the Subcontract satisfactory 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 Subcontract. I3.6 Performance Bond and Payment Bond: 13.7 PROPERTY INSURANCE 13.7.1 Subcontractor shall provide property and equipment insurance for the full value 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 work 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 waive 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 of their subcontractors, sub-subcontractors, agents and employees for damages caused by fire or other causes of loss to the extent covered by properihd 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 ()zoner as a fiduciary. The Subcontractor shall require of the Subcontractor' s Sub-subcontractors, agents, and employees, by appropriate agreements, written where legally required for vatidity, similar waivers in favor of the parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an: insurable interest in the property damaged. ARTIECLE 14 ~ TEMPORARY FACILITIES AND WORKING CONDITIONS 14.1 The Contractor shall furnish and make available to ,the Subcontractor the following temporary 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 17 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 ID badges must be worn Project is phased - multiple trips required Act 34 Forms must be provided to obtain ID badges 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 This 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 must 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 One Thousand Dollars ($1,000.00) per calendar day for submittals delayed past forty-five (45) days from the notice to proceed and One Thousand ($1,000.00), per calendar day of delay past completion date for each phase as identified by the contract documents. ARTICLE 15 - MISCELLANEOUS PROVISIONS 15.1 Where reference is made in this Subcontract to a prcroision of another Subcontract Document, the reference refers to the provision as amended or supplemented by other provisions of the Subcontract Documents. 15.2 Payments due and unpaid under this Subcontract s~all 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 interest to the Subcontractor. 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. 18 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 Mechanics' Lien or claim against the project, the property, or any improvements thereon or against any monies due or to become due from the Owner to the Contractor or from the Contractor to the Subcontractor, for or on account of any work, labor, seroices, materials, or equipment or other terms furnished in connection with the work or any change order, the Subcontractor agrees to satisJ~j, remove, or discharge such lien or claims at its own expense by bond, payment or otherwise within ten (10) days of the date of the filing thereof. If Subcontractor shall fail to do so, the Contractor shall have the right, in addition to all other rights and remedies provided in the Contract Documents or by law, to satisfad, remove or discharge such liens or claims by whatever means the Contractor chooses at the entire expense of the Subcontractor, including legal fees and expenses. ARTICLE 16 - ENUMERATION OF SUBCONTRACT DOCUMENTS 16.1 The Subcontract documents, except for Modifications issued after execution of this Subcontract, are enumerated as follows: 16.1.1 This executed Standard Form of Agreement Between Contractor and Subcon tractor; 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-Contractor Agreement; 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 Agreement: Modification 1 Modification 2 Modification 3 Modification 4 Modification 5 Date 25 August 2000 Date 28 August 2000 Date I September 2000 Date 6 September 2000 Date 8 September 2000 16.1.4 Other Documents, if any, forming part of the Subcontract Documents are as follows: Wage Rates Specifications - 09050, 09060, 09110, 09210, 09218, 09250, 07210, 05400 Drawings - AO. 1 through Al1.12 Phased schedule  m~e.....,.,,~,zent entered int° as °f the da..y and year fi~'s~ t°~ f(ff'mand Cons"'"'~ "' ' - truction, Inc.- Michael P. Kadilak, President (Printed name and title) 19 EXHIBIT B Reconciliation Statement STATEMENT EAST PENNSBORO HIGH SCtlOOL KAMAND CONSTRUCTION INVOICE NO. DESCRIPTION AMOUNT AMT. PAID AMT. DUE 1037 Application No. 1 $60,500.00 $60,500.00 $0.00 1065 Application No. 2 $15,000.00 $15,000.00 $0.00 1071 Application No. 3 $63,550.00 $63,544.20 $5.80 T1074 Work Order Tickets $3,382.50 $3,044.25 $338.25 T1088 Work Order Tickets $3,390.50 $3,390.50 $0.00 1089 Application No. 4 $53,700.00 $50,197.35 $3502.65 1090 Application No. 5 $32,150.00 $29,835.00 $3,215.00 T1091 Work Order Tickets $1540.00 $1540.00 $0.00 T1093 Work Order Tickets $1,725.35 $1,725.35 $0.00 1102 Application No. 6 $22,800.00 $20,520.00 $2,280.00 1096 Change Order $1,165.00 $1,165.00 $0.00 1097 Change Order $1,850.00 $1,850.00 $0.00 T1101 Work Order Tickets $2,232.50 $2,232.50 $0.00 1108 Change Order $1,990.00 $1,990.00 $0.00 1110 Application No. 7 $20,400.00 $18,560.00 $1,840.00 T1116 Work Order Tickets $1,325.00 $1,325.00 ! $0.00 1136 Application No. 8 $5,500.00 $4,950.00 $550.00 1146 Application No. 9 $4,400.00 $3,960.00 $440.00 1145 Application No. 10 $3,000.00 $2,700.00 $300.00 1160 Change Order $1,768.00 $1,591.20 $176.80 1173 Application No. 11 $4,540.00 $4,085.50 : $454.50 T1144 Work Order Tickets $2,155.00 $1,940.00 $215.00 T1172 Work Order Tickets $835.00 $0.00 15835.00 T1183 Work Order Tickets $1,632.00 $0.00 $1,632.00 Statemem for East Pennsboro High School Page 2 of 2 INVOICE NO. DESCRIPTION AMOUNT AMT. PAID AMT. DUE 1197 Application No. 12 $15,180.00 $13,662.00 $1,518.00 T1213 Work Order Tickets $250.00 $0.00 $250.00 T1214 Work Order Ticket $167.20 $0.00 $167.20 T1171 Work Order Tickets $3,578.00 $1,145.00 $2,433.00 TOTALS $329,706.05 $309,552.85 $20,153.20 EXHIBIT C Payment Bond Jun-ZS-2003 03:1Tm Fro~-Ea;t Pennsboru Area School D~trlct 717 T$2 gg2T T-?'g~ P.00~-/008 F-;$0 'AND ADD{T~O.N$ TO T~'~ EAST PAYmenT Y~NOW ALL M~N BY TI~.$£ 2~2.SEhr~ Ka~nd ~onst~uction, Inc. Fideli:y and D~osit Company of ,A Maryland ¢or~mration'autborlze~ ~o 40 bus.~ezz in ~A ~M, Fsve Million, Three Hu~d~e~ TwentF Nine ~ousand--O0/lO0 ~L~ Renovations and Additions aw~ of cbc C~:~ ~ ~ ~e to ~e P~ by the NOW, ~D~, ~e ;e~ ~ c~ti~s o[~ ~ a~ PAY~-'qT I~OND 0061 ~. 1 Kaman~ ConsC~'~CCion~ Inc. J. ~tchael Ru~erford,, 'Vige Pgesi~emt ~ O~ DOCUIV~'"NT EXHIBIT D Demand June 26, 2003 Mr. Glenn Speicher Surety and Financial Claims Zurich N/A P.O. Box 17138 Baltimore, MD 21297-1138 Dear Mr. Speicher: Per our telephone conversation today, I am writing this le~er to officially file a claim for payments not received for work performed at East Pennsboro High School, Enola, PA. We were contracted by Kamand Construction, Inc. to perform the drywall in this school, and to date have not been paid in full. Attached is a statement showing each bill issued and balance owed. The total owed is $20,153.20. Please contact ns if you need additional information. Tl~mk you for your assistance in this matter. Sinc~e~, Lorraine R. Fleming President STATEMENT EAST PENNSBORO HIGH SCHOOL KAMAND CONSTRUCTIO1~ INVOICE NO. DESCRIPTION AMOUNT AMT. PAID AMT. DUE 1037 Application No. 1 $60,500.00 $60,500.00 $0.00 1065 Application No. 2 $15,000.00 $15,000.00 $0.00 1071 Application No. 3 $63,550.00 $63,544.20 $5.80 T1074 Work Order Tickets $3,382.50 $3,044.25 $338.25 T1088 Work Order Tickets $3,390.50 $3,390.50 $0.00 1089 Application No. 4 $53,700.00 $50,197.35 $3502.65 1090 Application No. 5 $32,150.00 $29,835.00 $3,215.00 T1091 Work Order Tickets $1540.00 $1540.00 $0.00 T1093 Work Order Tickets $1,725.35 $1,725.35 $0.00 1102 Application No. 6 $22,800.00 $20,520.00 $2,280.00 1096 Change Order $1,165.00 $1,165.00 $0.00 1097 Change Order $1,850.00 $1,850.00 $0.00 T1101 Work Order Tickets $2,232.50 $2,232.50 $0.00 1108 Change Order $1,990.00 $1,990.00 t0.00 1110 Application No. 7 $20,400.00 $18,560.00 $1,840.00 T1116 Work Order Tickets $1,325.00 $1,325.00 $0.00 1136 Application No. 8 $5,500.00 $4,950.00 $550.00 1146 Application No. 9 $4,400.00 $3,960.00 $440.00 1145 Application No. 10 $3,000.00 $2,700.00 $300.00 1160 Change Order $1,768.00 $1,591.20 $176.80 1173 Application No. 11 $4,540.00 $4,085.50 $454.50 T1144 Work Order Tickets $2,155.00 $1,940.00 $215.00 T1172 Work Order Tickets $835.00 $0.00 $835.00 T1183 Work Order Tickets $1,632.00 $0.00 $1,632.00 Statement for East Pennsboro High School Page 2 of 2 INVOICE NO. DESCRIPTION AMOUNT AMT. PAID AMT. DUE 1197 Application No. 12 $15,180.00 $13,662.00 : $1,518.00 T1213 Work Order Tickets $250.00 $0.00 $250.00 T 1214 Work Order Ticket $167.20 $0.00 $167.20 T1171 Work Order Tickets $3,578.00 $1,145.00 $2,433.00 TOTALS $329,706.05 $309,552.85 $20,153.20 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 & Deposit Company of Maryland EASY DOES IT DRYWALL, INC. : Plaintiff, : FIDELITY AND DEPOSIT COMPANY : OF MARYLAND : Defendant. : COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 03-5346 - LAW ENTRY OF APPE~c~ TO THE PROTHONOTARY: Kindly enter this firm's appearance on behalf of Defendant Fidelity and Deposit Company of Maryland ill this civil action. Ellsworth, Carlton, Mixell & ~aldman, P.C. November 10, 2003 ooert T. Carlton, Jr. Attorneys for Defendant Fidelity and Deposit Company of Maryland 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 & Deposit Company of Maryland EASY DOES IT DRYWALL, INC. : : Plaintiff, : FIDELITY AND DEPOSIT COMPANY : OF MARYLAND : Defendant. : COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 03-5346 - LAW I, Robert T. Carlton, Jr., I caused a true and correct appearance to be served by first class mail Michael L. Bangs 302 South 18th Street Camp Hill, PA 17011 CERTIFICATE OF SERVICE certify that on November 10, 2003, copy of the foregoing entry of upon: Robert T. Carlton, Jr. ELLSWORTH, CARLTON, MIXELL BY: ROBERT T. CARLTON, JR., Attorney I.D. No.: 25050 1105 Berkshire Boulevard, Wyomissing, PA 19610 (610) 374-1135 & WALDMAN, P.C. ESQ. Suite 320 Attorneys for Defendant Fidelity & Deposit Company of Maryland EASY DOES IT DRYWALL, INC. : Plaintiff, : FIDELITY AND DEPOSIT COMPANY : OF MARYLAND : : Defendant. : COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 2003-5346 - LAW NOTICE TO PLEAD To: Michael L. Bangs, Esquire 302 South 18th Street Camp Hill, PA 17011 Attorney for Plaintiff You are hereby notified to enclosed new matter within twenty file a written response to the (20) days from service hereof or a judgment may be entered against you. Ellsworth, Carlton, Mixell & Waldman, P.C. Robert T. Car~lton, dr. Attorneys for Defendant Fidelity and Deposit Company of Maryland 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 & Deposit Company of Maryland EASY DOES IT DRYWALL, INC. : Plaintiff, : FIDELITY AND DEPOSIT COMPANY : OF MARYLAND : : Defendant. : COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 2003-5346 LAW DEFENDANT FIDELITY AND DEPOSIT COMPANY OF ~a. RYLAND'S ANSWER AND NEW MATTER Defendant Fidelity and Deposit Company of Maryland ("F&D")answers the correspondingly numbered paragraphs of Plaintiff Easy Does It Drywall, Inc.'s ("Easy Does It") Complaint as follows: 1. After reasonable investigation F&D is without knowledge or information sufficient to form a belief averments of this paragraph. 2. Admitted in part, denied in part. is a Maryland Pennsylvania. It is as Easy located at 3. as to the truth of the It is admitted that F&D corporation authorized t9 do business in is denied that F&D's principal place of business Does It avers. F&D's principal place of business is 3910 Keswick Road, Baltimore, Maryland. Admitted in part, denied in part..It is admitted that on or about November 9, 2000, Easy Does It entered into a subcontract with Kamand Construction, Inc. ("Kamand") by which Easy Does It as subcontractor agreed to perform drywall and related work in connection with Kamand's contract with the East Pennsboro School District for renovations and additions to -zhe East Pennsboro Area High School. After reasonable investigation F&D is without knowledge or information sufficient to from a belief as to the truth of the remaining averments of this paragraph. 4. Admitted. Denied. It is specifically denied that there is a balance from Kamand to Easy Does It. To the contrary, as a result of the total amount of the contract is $278,348.73. Kamand has paid By reason of back charges from Kamand to It owes Kamand the sum of $26,049.27. due change orders and back charges, between Kamand and Easy Does It $304,398 to Easy Does It. Easy Does It, Easy Does 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. 6. After reasonable investigation F&D is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph. 7. Admitted in part, denied in part. It is admitted that on or about July 8, 2003 Kamand filed a petition for relief under Chapter 11 of the United States Bankruptcy Code in the United States District Court for the Middle Distriot of Pennsylvania, Case No. 03-04018. It is denied that there are any amounts due and owing from Kamand to Easy Does It. 8. Admitted. 9. Admitted in part, denied in part. It is admitted that demand was made. For the reasons more fully set forth in its answer to the foregoing paragraph 5 and the New Matter set forth below, F&D denies that there are any amounts due and owing from Kamand to Easy Does It. 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. 10. Admitted in part, denied in part. It is admitted that F&D has not made payment to Easy Does It. For the reasons more fully set forth in its answer to the foregoing paragraph 5 and the New Matter set forth below, F&D denies that there are any amounts due and owing from Kamand to Easy Does It. 11. Denied. It is specifically denied that F&D has breached any duty to Easy Does It for the reason that there are not any payments due and owing from Kamand to Easy Does It. 12. Denied for the reason that are not any payments due and owing from Kamand to Easy Does It. 13. Denied for the reason that are not any payments due and owing from Kamand to Easy Does It. WHEREFORE, Defendant Fidelity and Deposit Company of Maryland demands that judgment be entered in its favor and that Plaintiff Easy Does It Drywall, Inc.'s Complaint be dismissed with prejudice. NEW MATTER 14. The Complaint can be granted. 15. Kamand's fails to state a claim upon which relief 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 Easy Does It's claims inure to F&D's benefit and F&D incorporates those defenses, set-offs and counterclaims by reference. 16. As a result of change orders and back charges, the total amount of the contract between Kamand and Easy Does It on the East Pennsboro High School Construction Project is $278,348.73. Kamand has paid $304,398 to Easy Does It. By reason of back charges from Kamand to Easy Does It, Easy Does It owes Kamand the sum of $26,049.27. 17. Easy Does It also performed work as a subcontractor to Kamand on a federal construction project, Contract Number DAHA36- 99-D-0011, at Ft. Indiantown Gap in Annville, Pennsylvania (the "Ft. Indiantown Gap Project"). 18. On or about February 3, 2003, the United States Department of Labor, Employment Standards Wage and Hour Division determined, and notified Easy Does It, that five of Easy Does It's employees on the Ft. Indiantown Gap Project were underpaid in the 4 amount of $6,388.96 as a result of Davis Bacon and Related Acts and Contract Work Hours Safety Standards Act violations by Easy Does It on the Ft. Indiantown Gap Project. 19. Notwithstanding the Department of Labor's demand that it do so, Easy Does It has at all times material to this civil action, both before and after February 3, 2003, failed and refused to pay the underpaid wages. 20. As a result of Easy Does It's failure and refusal as set forth in paragraph 19 above, the United States of America has withheld $6,388.96 from contract funds otherwise due and owing to Kamand as general contractor on the Ft. Indiantown Gap Project. 21. As a result of all of the foregoing, Easy Does It owes $6,388.96 to Kamand, which amount F&D is entitled to assert as a set-off to Easy Does It's claim in this civil action. 22. Easy Does It's claim is barred in whole or in part by the applicable statute of limitations. 23. Easy Does It's claim is barred, Ln whole or in part, by the doctrines of waiver, WHEREFORE, Defendant demands that judgment be estoppel and laches. Fidelity and Deposit Company of Maryland entered in its favor and that Plaintiff Easy Does It Drywall, Inc.'s Complaint be dismissed with prejudice. Ellsworth, Carlton, Mixell & Waldman, P.C. B y: _~7----~~_~ Robert T. CarltonI Jr. Attorneys for Defendant VERI______FICATIO~ 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 to the best of my knowledge, based upon documents furnished to me President of Kamand Construction, Inc. This verification is made subject Pa.C.S. ~ 4904 relating to unsworn November 14, 2003. Dated: and New Matter are true and correct information and belief and are also by Michael Kadilak the to the penalties of 18 falsification to authorities. Robert T. Ca . 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 m.co Attorneys for Defendant Fidelity & Deposit Company of Maryland EASY DOES IT DRYWALL, INC. : Plaintiff, : FIDELITY AND DEPOSIT COMPANY : OF MARYLAND : : Defendant. : COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 03-5346 - LAW CERTIFICATE OF SERVIC~ I, Robert T. Carlton, Jr., certify that I caused a true and correct copy of the foregoing Matter to be served by first class mail upon: Michael L. Bangs 302 South 18th Street Camp Hill, PA 17011 on November 14, 2003, Answer and New Robert 7 :~ Jr. EASY DOES IT DRYWALL, INC., Plaintiff VS. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-5346 CIVIL TERM CIVIL ACTION - LAW RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form: ,~ PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: MICHAEL L. BANGS, counsel for the Plaintiff in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim ofthe Plaintiff in the action is $20,153.20, plus interest plus costs of suit. The following attorneys are imerested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Michael L. Bangs, Esquire, and Robert T. Carlton, Jr., Esquire (Ellsworth, Carlton, Mixell & Waldman, 1105 Berkshire Boulevard, Suite 320, Wyomissing, Pennsylvania, 19610). WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, ~, ~-, MICHAEL L. BANG~_~ ORDER OF COURT AND NOW, [~/~vt~ t36tt ~ ~~' 20~4, in~comderatiog~,ofthe foregoigg petition, j~~d~squire, Esquire, ~d ~ ~ ~ , Esqu~e~e appointed ~bi~ators in the above-captioned action (or actions) as prayed for. 0 v$ OATH 1N THE COURT Ob coMMoN PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. AWARD We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award:  (Note: If damages for delay,~re awarded, their, shall, be s.eparately s, tatedJ · Arbitrator, dissents. (insert name if~p~cabl~) ~ ~d' DateofHearing: ~., ~OiZ. OOL~ ~k ~F %- Date of Awed: ~&~ 50[Z00q ~. ~o~m~ o~ [~ o~ ~w~ Now, the ~ ~yof ~C~ ,200q,at /2:/7 , F.M.,theaboveaw~d was entered upon the docket ~d notice th~eof given by mail to ~e pa~ies or thek a~omeys. ~ibi~ators'compensafion to be ~o,~ o~ Paid upon appeal: Pro~onom~ ~ , 90.00 EASY DOES IT DRYWALL, 1NC., Plaintiff VS. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant ) ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-5346 CIVIL TERM CIVIL ACTION - LAW pRAECIPE TO THE PROTHONOTARY: Please mark the judgment "satisfied" and the case settled and discontinued. Re s{ ~ect fully submitted, ~ v~'f~'i'/ vMICHAEL L. B~NGS (~ Attorney for Plaintiff 429 South 18th S'treet Camp Hill, PA 17011 (717) 730-7310 Supreme Court ID #41263 Date: May 28, 2004