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HomeMy WebLinkAbout08-5855 Anthony Stefanon, Esquire I.D.#25497 Justin Stefanon, Esquire I.D.#204580 407 North Front Street P.O. Box 12027 Harrisburg, PA 17108-2027 Attorney for Plaintiffs VIRGINIA M. HOSTETTER, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NATIONAL CONSTRUCTION RENTALS, INC. t/d/b/a NATIONAL RENT-A-FENCE Defendants No. ?e-.sess- CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint is served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier quaja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 Justin Stefanon, Esquire PA Bar ID# 204580 1847 Center Street Camp Hill, PA 17011 (717) 761-6162 VIRGINIA M. HOSTETTER, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, vs. PENNSYLVANIA NATIONAL CONSTRUCTION RENTALS, INC. t/d/b/a NATIONAL No. og- s-s ss L RENT-A-FENCE CIVIL ACTION - LAW Defendants JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff is Virginia M. Hostetter, an adult individual residing at 111 November Drive, Apartment 1, Camp Hill, PA 17011. 2. Defendant National Construction Rentals, Inc. t/d/b/a National Rent-A-Fence (hereinafter "National") is a California corporation, registered in Pennsylvania, with offices or principal place of business located at 52 South Third Street, Fernwood, Delaware County, Pennsylvania, which corporation regularly conducts business in Cumberland County, Pennsylvania. 3. On October 20, 2006 Plaintiff Virginia M. Hostetter was struck by a chain-link fence which was erected near the entrance to the West Shore Branch YMCA at 410 Fallowfield Road, Camp Hill, Cumberland County, PA; which fence was blown over by a gust of wind. 4. Plaintiff was thrown to the ground causing injuries including a transverse fracture of her right humerus and nerve damage in her right arm. 5. The injuries suffered by Virginia M. Hostetter were caused by the negligent 1 erection and maintenance of the aforementioned fence as will be more fully set forth hereinafter. 6. As the result of the aforesaid injuries, Virginia M. Hostetter has undergone an extended course of medical care and treatment including inpatient and outpatient hospital care; surgeries; doctor's visits; medications; and related care and treatment, all of which have caused her to incur medical expenses for the aforesaid care and treatment. 7. As the result of the aforesaid injuries, Virginia M. Hostetter has individually endured great mental and physical pain, anguish, distress, and suffering, and will continue to endure such conditions for the remainder of her natural life. 8. As the result of the aforesaid injuries, Virginia M. Hostetter has suffered both temporary and permanent disabilities and has been prevented from attending to the normal activities of her daily life, all of which have resulted in aggravation, inconvenience, embarrassment and humiliation. COUNTI NEGLIGENCE VIRGINIA M. HOSTETTER V. NATIONAL 9. The averments of the foregoing paragraphs 1 through 8 are incorporated herein by reference. 10. Defendant National was contracted by Lobar Associates, Inc. to lease and erect the aforementioned chain-link fence at the West Shore Branch YMCA as part of a construction project. 2 11. On or about October 25, 2005, Defendant National erected the aforementioned fence at the site of the West Shore Branch YMCA and maintained ownership and control of the fence up to and including the date of the incident which gave rise to this cause of action. 12. Defendant National erected and maintained the aforementioned fence in a negligent manner as further set forth below. 13. The design, construction, maintenance and monitoring of the chain-link fence were negligently performed in the following respects: (a) The bottom of the fence was not weighted down by sandbags, concrete blocks, piles of dirt, or any other object; and (b) The fence was not secured to the adjacent building or to any object permanently affixed to the ground by any means; and (c) The section of fence which struck Mrs. Hostetter was not secured at its upper corners to the adjacent sections of fence; and (d) The fence lacked any type of safety device, signs, warnings, or labels to alert pedestrians to the risk of walking adjacent to said fence in its unsecured condition; and (e) The fence was erected adjacent to the entryway to a public building, commonly used by children and the elderly; and (f) Defendant National did not provide sufficient instructions, signs, warnings, or labels to the lessee of the fence, Lobar Associates, Inc. to ensure ongoing safety in the maintenance, monitoring, and use of the fence. (g) The fence suffered from such other defects as may be identified through 3 continuing investigation and discovery. 14. Defendant National knew or should have known that the unsecured fence in close proximity to the entrance of the West Shore YMCA presented a substantial likelihood of injury and unreasonable risk of harm or damage to persons in the position of Virginia M. Hostetter, should have expected that such persons would not discover or realize the danger or would fail to protect themselves against it, and failed to exercise reasonable care to protect such persons against said danger. 15. Defendant National knew or had reason to know the that fence was or was likely to be dangerous for the use for which it was supplied, had no reason to believe that those for whose use the fence was supplied would realize its dangerous condition, and failed to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous. 16. The aforesaid negligence by Defendant National caused the injuries and damages suffered by Virginia M. Hostetter as set forth in the foregoing paragraphs. 4 WHEREFORE, Plaintiff demands judgment against National for special damages, general damages, delay damages, interest, and costs of suit, in an amount which exceeds the limit of compulsory arbitration under the local rules of the Court of Common Pleas of Cumberland County, Pennsylvania. RESPECTFULLY SURMITTFn By DATE: ?? L Og 5 1847 Center Street Camp Hill, PA 17011 (717) 761-6162 VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing COMPLAINT are true and correct to the best of her knowledge, information, and belief. This Verification is made subject to the penalties of 18 Pa C.S.A. C 4904 relating to unsworn falsification to authorities. DATE: 6 oo,? /,O? 6 r .c_ N Q C7 N C-fl w C) "71 -'C MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 19183-0 Attorney for Defendant National Construction Rental t/d/b/a National Rent-A-Fence VIRGINIA HOSTETTER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 08-5855 vs. NATIONAL CONSTRUCTION CIVIL ACTION - LAW RENTALS t/d/b/a NATIONAL RENT-A-FENCE JURY TRIAL DEMANDED Defendants ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned on behalf of Defendant, National Construction Rental t/d/b/a National Rent-A-Fence, in the above captioned case. MARSHALL DENNEHEY WARNER COLEMAN-di GOGGIN By: t / Christopher M. Reeser, Esquire Attorney for Defendant ID# 73672 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Dated: October 30, 2008 ?,_.. rn E ,-Cr C-3 ?,.. 10 '= MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 19183-0 Attorney for Defendant National Construction Rental t/d/b/a National Rent-A-Fence VIRGINIA HOSTETTER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 08-5855 VS. NATIONAL CONSTRUCTION CIVIL ACTION - LAW RENTALS t/d/b/a NATIONAL RENT-A-FENCE JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I, Christopher M. Reeser, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on October 30, 2008, I served a copy of Defendant's Entry of Appearance via First Class United States mail, postage prepaid as follows: Justin Stefanon, Esquire 1847 Center Street Camp Hill, PA 17011 Attorney for Plaintiff 63--- Christopher M. Reeser -41 SHERIFF'S RETURN - OUT OF COUNTY M ? CASE NO: 2008-05855 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HOSTETTER VIRGINIA M VS NATIONAL CONSTRUCTION RENTALS R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: NATIONAL CONSTRUCTION RENTALS INC TDBA NATIONAL RENT-A-FENCE but was unable to locate Them deputized the sheriff of DELAWARE in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On November 7th , 2008 , this office was in receipt of the attached return from DELAWARE Sheriff's Costs: So answers : __---- r--? Docketing 18.00 ,. Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep Delaware Cc 39.60 Sheriff of Cu erland County Postage 1.76 78.36 11/07/2008 ANTHONY STEFANON Sworn and subscribe to before me this day of A. D. N • It M County to execute this Writ, this Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service r ? y In The Court of Common Pleas of Cumberland County, Pennsylvania Virginia M. Hostetter VS. ,trr4ction Pw I4 !no t7/d/b/a Natir l `tent-A-ince No. '08-5855 civil Now, October 6, 2008, , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Delaware deputation being made at the request and risk of the Plaintiff. Now, , 20 DI , at Jyo'clock M. served the within upon ??& ` at 'sh ., /I by handing to a copy of th al and made known to the contents thereof. So answers, ,:wE.ALIH rF" P1.-i,4,r.SYLYM 1A iy,JT.AF'1AL SEAL -PK, Notary Public NPR ware County qua = 1 gust I MO Swom and subscribed bel me thisd3?day of ?-, 20 Sheriff of County, PA COSTS SERVICE _ MILEAGE _ AFFIDAVIT MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 19183-01407 Attorney for Defendant National Construction Rental t/d/b/a National Rent-A-Fence VIRGINIA HOSTETTER Plaintiff VS. NATIONAL CONSTRUCTION RENTALS t/d/b/a NATIONAL RENT-A-FENCE Defendants TO: Justin Stefanon, Esquire 1847 Center Street Camp Hill, PA 17011 Attorney or Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 08-5855 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to plead to the enclosed Answer with New Matter within twenty (20) days from service hereof or a default judgment may be filed against you. Respectfully submitted, MARSHALL DENNEHEY WARNER COLEM O IN By: Christopher M. Reeser, Esquire Attorney for Defendant National Construction Rentals ID# 73672 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Dated: November 20, 2008 717-651-3509 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 19183-01407 Attorney for Defendant National Construction Rental t/d/b/a National Rent-A-Fence VIRGINIA HOSTETTER Plaintiff vs. NATIONAL CONSTRUCTION RENTALS t/d/b/a NATIONAL RENT-A-FENCE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 08-5855 CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants ANSWER AND NEW MATTER OF DEFENDANT NATIONAL CONSTRUCTION RENTALS t/d/b/a NATIONAL RENT-A- FENCE 1. Denied. Answering Defendant does not have sufficient information to form a belief as to the truth or falsity of the averment in Paragraph 1. 2. Admitted. 3. Denied pursuant to Pa.R.C.P. 1029(e). 4. Denied pursuant to Pa.R.C.P. 1029(e). 5. The averment in Paragraph 5 is a legal conclusion to which no responsive pleading is required. To the extent that the averment in Paragraph 5 is deemed to be factual, that averment is denied pursuant to Pa.R.C.P. 1029(e). 6. Denied pursuant to Pa.R.C.P. 1029(e). 7. Denied pursuant to Pa.R.C.P. 1029(e). 8. Denied pursuant to Pa.R.C.P. 1029(e). COUNTI NEGLIGENCE Virginia M. Hostetter v. National 9. No responsive pleading required. 10. Denied as stated. It is admitted that Lobar rented a chain link fence which was erected around a construction site owned by Lobar Associates at the West Shore YMCA. A true and correct copy of National Construction Rentals' contract with Lobar Associates is attached hereto as Exhibit A. 11. Admitted in part and denied in part. It is admitted that on or about October 25, 2005, National Construction Rentals erected a fence around the construction site owned by Lobar at the West Shore YMCA. It is denied that National Construction Rentals maintained control of the fence up to and including the date of the incident referenced in plaintiffs Complaint. Lobar Associates rented the construction fence from National Construction Rentals and maintained control of the fence at all times relevant to this cause of action. 12. The averment in Paragraph 12 is a legal conclusion to which no responsive pleading is required. By way of further answer, the allegation in Paragraph 12 is denied pursuant to Pa.R.C.P. 1029(e). 13. The allegations of Paragraph 13 and subparagraphs 13(a)-13(f) are legal conclusions to which no responsive pleading is required. By way of further answer and without waiving the objection, the allegation in Paragraph 13 and subparagraph 13(a-f) are denied pursuant to Pa.R.C.P. 1029(e). Subparagraph 13(g) is stricken by Stipulation of the parties. 14. Denied pursuant to Pa.R.C.P. 1029(e). 15. Denied pursuant to Pa.R.C.P. 1029(e). 16. Denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Defendant National Construction Rentals t/d/b/a National Rent-A- Fence request judgment be entered in their favor. NEW MATTER 17. Plaintiffs claims or any amendment to those claims may be barred by the applicable statute of limitations. 18. Plaintiffs claims are barred or limited by the Pennsylvania Comparative Negligence Act, 42 Pa. C.S. §7102. 19. Upon information and belief, the injuries alleged by plaintiff to have occurred as set forth in her Complaint may have been caused by a third party or third parties who are not named as defendants in this action. 20. Upon information and belief, the injuries alleged to have occurred to plaintiff in her Complaint may have been caused by a force of nature beyond the control of Answering Defendant. 21. At all times relevant to this cause of action, Lobar Associates was the lessee of the construction fence which was around the construction site owned by Lobar on the West Shore YMCA's property. The terms and conditions of the rental of the fence are set forth in the contract attached hereto as Exhibit A. WHEREFORE, Defendant National Construction Rentals t/d/b/a National Rent-A- Fence request judgment be entered in their favor. Respectfully submitted, MARSHALL DENNEHEY WARNER COLEM GGIN By: Chns op er M. Reeser, Esquire Attorney for Defendant National Construction Rentals ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Dated: November 20, 2008 EXHIBIT A Tel: (800) 352-5675 www.rentnational.com Lessee: C148681 Lobar Associates Inc 4 Barlo Circle Dillsburg; PA 17019 Bus. Phone: 717-432-3249 Job Site: Job Name: Address: Cross Street: City: Super: Job Phone: Page: 0006 Page: 89 Grid: E04 West Shore YMCA 410 Fallowfield Road Trindle Road Camp Hill, PA 17011 Mark Schrum 717-418-5649 Order No: RO-197988 Order Date: 10/20/05 Ordered by: Mark Schrum Terms: Net 30 days Est. QtY Actual Qty Item Description 4:gAR*-z6 7-44-U- 6' panels A 0 ?0?_ Sand bags Notes: '•$750.00 MINIMUM APPLIES TO THIS CONTRACT`"` -FALLOWFIELD ROAD IS A SMALL STREET OFF OF TRINDLE*" PO Number: Job No: Salesperson: Location: UOM From/Thru Ft 10125/0510/25106 Ea 10/25/05 10/25105 05249 Sara C - Philadelphia 059 Philidelphia Install/ Service Rental Extended One-Time Rate Rate Total 5.09 7.00 INSTALLER USE ONLY Paid By: ? Cash ? Check # CORE DRILLING AT PER FT. . ?OTHER CHARGES AT PER FT. - Aw torized Signature for Above: Law must call to order removal of rental equipment Lessor requires 10 wod* days for removal upon nothx of termhnatlon of Vase. Lessor, as defined In paragraph 1 of the Terms W Condltlara on the reverse W& hereof (Lessor), arses to hmft the properly/equipment spedfied above for Installation and one trip removal. Additional hips for repair, relocation or removal will be bleed A Lessor's prevallIng tale. After thirty (90) calendar day=, K any amount due has tat been paid In M. Lessor strae have the rigid to remove rental equipment and terminate this Contract. In addition. Lessee agrees to pay Lessor's attomey's fees end er WAff1d to erdace payment of dituent bills. Time ConfilTnad Data Time Arrived D 16 '- County Installed Remo 119 % 1: I a ?1\ ?+ ? / ?,Ptlnt Wme) (punt Name) Cll m dl Lessee Signature (Print Name) ). I hKIVID AIN11P q .V1V1111 J."no 1. Lessor and Lessee: National Construction Rentals, inc. Wor National Rent-A•Fence, Co Wor National Mobile-Storage, Co., Wor National Sanitatioa, Co., Wor National Power Pole, Co., ("Lessor'), hereby leases to Customer ("Lessee' ), and Lessee hereby accepts the leased equipment ("Leased Equipment') subject to the following provisions. 2: Lessee's authority: Lessee warrants and represents that it has the right and authority to authorise Lessor to enter upon the property where the Leased Equipment is to be loafed for its installation, repair, relofttion, and/or removal. Lessee warrants that any right of way provided by Lessee from. the location where the Leased Equipment is to be stored to the most convenient public way isoufCtcient to bet' the weight of the Leased Equipment and vehicles reasonably required to perfomt the seiyices berein contracted. It is the intent of this Lease that Lessor shall not be responsible for damage to any private pavement or accompanying subsurface on any route reasonably necessary to perform the sen%tces herein contracted. To the extent any claims are asserted or litigation filed against Lessor as a result of damage to pavement, madways, or the like, Lessee hereby agrees to defend and indemnify Lessor against all such claims or actions, at Lessee's sole cost and expense. 3. Default: To the extent allowed by law, Lessee hereby expressly consents to Lessor or its agents entrance upon the property where the Leased Equipment is located for the purpose of temovia the Leased Equipment, without notice, legal process or prior judicial hearing, if a) Upon termination of this Lease for any reason, Lessee does not cooperate to voluntarily return the Lease Equipment; b) Lessor exercises any of its rights to retake the Leased Equipment as permitted by operation of law; and/or c) Lessor and/or its agents retake the Leased Equipment to protect it from loss, destruction, or damage. Lessee expressly agrees to allow Lessor and/or its agents to break the lock or seat, if any, on the Leased Equipment. Lessee further expressly agrees to pay all costs and expenses incurred by Lessor in retaking the Leased Equipment, includin but not limited to payment of all expenses incurred by the use of repossession agents. Lessee expressly waives all claims for damages and losses physical and pecuniary, caused by retaking the Leased Equipment by Lessor and/or its agents. Lessor shall not be responsible for damage to property in the container(s) if any, durin retaking, and, to t{he extent permitted by law, Lessor shall have the right to either empty the contents of the container(s) at the location where the container(s) islare located, or to take possession of the property and sell the property within the container(s) and offset the costs, expenses, and charges incurred by Lessor during the repossession and to pay any debt of Lessee to Lessor. 4. Use of property: The Leased Equipment shall be used solely in Lessee's business and kept only at the property specified herein and shall not be removed therefrom without prior written consent of Lesso Leased equipment shall be used only within its rated capacity and shall not be used (a) in violation of any law or ordinance and (b) by anyone other than (i) Lessee, (ii) Lessees employee in the course of such employee's regular employment, or (iii) authorized agents of Lessee. Lessee is responsible for obtaining all required street or other permits.' 5. Rent: Lessee agrees to pay rent due at the rate set forth on Page I of this Lease until such time as the Leased Equipment is returned to Lessor and the Lease is paid in full. a. Fence rentals: Fencing is to betneasured upon installation and billed accordingly. The rental price includes installation and removal of chain link or panels. Upon e:piratiun of the rental period, 18 % of the original contract amount trill be charged per month until the fence is removed. Rented fences are not permanent fences and do not meet stateswimming pool inspection codes. Lessor assumes no liability for Lessee's use of rented fences. Lessee is solely obligated to ensure compliance with all applicable laws. b. Portable toilets: A portable toilet cleaning service is available at Lessee's option and expense. c. Other Equipment: All other tangible property that is made available at Lessees option shall require a separate agreement documenting the terms of the service. 6. Compliance with applicable laws: Lessee shall, at its own expense, comply with all state, federal and local laws and regulations affecting the leased Equipment and its use, erection, design and transportation, including licensing and building code requirements, and shall defend, indemnify and hold Lessor harmless from all loss, liability or expense resulting from actual or asserted viotaiitms of any such laws, requirements, or regulations. Lessee is responsible for any state, local or federal taxes, including any property taxes that may apply to the leased property. Obtaining permits a liable to the Leased Equipment is Lessee's sole responsibility. The exact manner in which the Leased Equipment will be used and th° trade or occupation of Lessee and arse qualifications of a are and the control of Lessor. Lessor therefore expressly disclaims any responsibility for Lessee's compliance or failure to comply with OSILA and'or other governmental safety or health regulations or scan ids. 7. Lessee's resoonsibility: Lessee assumes all obligations, and liabilities with respect to possession of the Leased Equipment, and far its use, condition and storage during the Luse. L2isee shall, at Lessees own expense, maintain the Leased Equipment in good condition and in good working order. The rent on the Leased ]Equipment will not be prorated or abated while the Leased Equipment is being serviced or repaired. In addition, it shall be Lessee's sole msponsibility to survey the property on which the Leased Equipment shall be utilized and adequately main the location of all underground utilities, such that Lessor or Lessor's agentsare properly notified of such undergrounci utilities. Such underground utilities includes, but is not limited to, telephone aces, sprinkler lines, and fiber optic cables.. 8. Damage to property: y'r hile the Leased Equipment is in Lessees possessior, lessee shali prevent shy contsmiaation of such Leased Equipment with or from radioactive, volatile, flatumable, explosive, toxic or other hazardous material f including oils, solvents, medical wastes, unsanitary materials, food stuffs, dead animal;, paint, petroleum products, chemicals, asbestos batteries or tims).'In the event of any such contamination, Lessee. si its sole expense, shall lawfully remove and dispose of such contamination, and it o request by Lessor provide docurnentalion theteoft,-If lessee fails'to di of the contamination at the request of Lessor or any governmental official, Lessor may remove and dispose of same with all costs associated wigs said removal and disposal to be charged. to Lessm.? to pay all costs associated therewith. Any and ail cost and expense which results front loss, damage or die destruction of the Leased Equipment or any part thereof from any cause whatsoever, ihchtdinago but not limited to fire, theft, comprehensive losses, collision, upset, vandalism, accident, negligence. abuse, graffiti, Acts of God and public enemy shall be the sole responsibility of Lessee and shall be paid to Lessor to restore or replace said Leased Equipment within 10 days of receipt of invoices therefore. Lessee further agrees to return the leased Equipment in the same condition it was in at installation. Lessee is hereby responsible for all damage or loss to the Leased Equipment even if someone else caused the datrage or lass or the ease of the flares a or kus is ttnknowa Lessee is responsible for the cost of repair up to the vaiue ofthe Leased Equipment or if the Leased Equipment is 'ttreparsble, Lessee shall pay the replacement cost of the Leased nipment. Lessee further assumes all risk and liability for the death of or injury' to any person or property and for all other risk and liability arising from the possession, arse er store of the Leased nipment Lessee shall notify Lessor immediately of any accident, occurrence, or failtue involving the Leased Equipment, and promptly furnish to Lessor in writ rig all info;metion inquired in comtection therewith. 9. Optional Property Damage R'ah•er: Shonlii Lessee accept Damage Waiver, and ,ro;•idee that the Leased Equipment is not i>eing ar'i.ized in violation of the Lease, Lessor shall waive any claim against l Lessee for damage to the Leased Equipment. Nom ithstandirg Lessee's acceptance a the Damage eiver, aid any datuage due io fLq, theft or abuse shall remain the responsibility of Lessee. Note: Damage waiver will not carver destioyed units, or theft; only damaged property 10. Prohibition against subletting or assigning: Lessee shall not scbict the Leased Eguipn:ert, assign or transfer this Lease, or uti:ens isa hire our, r. part with possession of any said Leased Equipment to any person, firm, partnership, assuciation or corporation other than Lessor, without the prior written consist of Lessor. IL Indemnity: Lessee shall indemriFr, defend and hold harmless Lessor, and its agents and empluyres, from and against all claims. loss or damage, including attorneys fees arising as a result of: (a) loss or damage to the Leased Equipment, the property on which the Lea;ed Equipment is utilized or stored, and any underground utilities or otter suRerrane3n articles, the existence and locaton of which Lessee knew or should have known, due to any cause (except for the intentional conduct of Lessor); (b) injury tc or death of any rersoc including but not limited to agents or employees of Lessee; or (e) damage to any property arisinu from the use, condition. possession, or storage of the leased Equipment Lessee shall further reimburse Lessor for all expenses, leases, liabilities, claims of any type,, including reasonable attorney's fees, imposed or or incurred by Lessor as a result of Lessees use or operation of the Leased. Equipment, or as a result of Lessee's fail ire to perform any terms of tots ease. 12. Litigation: Should any claims be asserted or litigation commenced concerning this Leased or the Leased 6;uiomeoi, the Party p cyadint-, in s*Ach litigation shal! be entitled to recover its reasonable attornev's fees and costs incurred as a result of such clai=as or litigation, in addition la such other relief as may be allowed by ear, meluIng attorney's fees atcurred it any bankruptcy or appellate proceeding. t 13. Severabflity: The invalidity of any n.-vision of this Lease, as detcrmdfied by a court of competent judsdicdon shall in no say affect die v:ilidity of an-y other provision hereof. 14. Integrated agreement: Lessee and Lessor agree that this Lease is the cbmpiote and exclusive sudenient of the agreement between the parties, which supersedes and merges all prior imposa.s, understandings and all other agreements, orU or written benveer, the patties. Lessor's faihire to object to previsions contained it any commun:cztion from Lessee shall not be deemed an acceptance dhereof or waives of any provision of this lease. 13. Construction of this Lease: Lessor and Lessee understand, agree, and ackncwledgc that: (•t) this Lease has hrcn freely negotiated by both parties; and (b) that ht any controversy, dispute, or contest over the meaning, interpretation, validity. or enforcement of this Lease, o,' n;,y of its teens or conditinns, there shall be no i iferarce, presumption or conclusion drawn whatsoever against either party by virtue of that party having drafted this Lease or any portion thereof. Additional Tenets: Prices do not include any federal, stag; or fecal taxes or other governmental fees, assassmant or charges on the Leased Equipment. Whenever applicable, the taxes or other fees, assessments or charger will be for the account of Lessee and naay be added to the invoice as a separate change to he paid by Lessee. Omission of a:;, taxes cr fees does not limit Lessee's obligation for paymeat. All risks of loss or damage to the-Leased Equipment shall be borne by Lessee following delivery at the delivery point specified on the face of this order. Cost of transportation from the detivery point will be for Lessee's account. Lessor reserves the ngbt to select the means of shipment and earne), if any, unless spa; tic shipping instructions arq received from Lessee. Lessor shall not be lit.ble for deiays in delivery or nor .delivery of a'I oc part of the Leased Equipment resulting from any cause bLnrond'its control; inclddirig without limitation, act of God, fire, flood, strike, lockout, factory shutdown or alteration., act of civil or militay authority. insurrection, not, war, transportation shortagge or delay, weather, accident, operations of law or governmental regulations, or delay in obtaining or inability to obtain labor or material. Delivery dates will be extended to the'extent of delaj•s ieauitiug from the circumstances described above, and no delivery shall be teemed overdue regardless of` cause if delivery is made within ninety (90) days from the estimated delivery A2te. _ Lesson's liability for failure to deliver the Leased Equipment, regardless of cause, will be limited to the pay-neat to Lessee of such pint of the mut as Lessee may have paid to Lessor. In no event 6484 Lesser be liable for any consequential or special damages. Lessee acknowledges that Lessor is not the manufacturer of the Leased Equipment and that die sole warranty made?Ath respect to the. Leased Equipment is that made. said given by Manufttchuer as ' set forth in Manufacturers current warranty form. Nxcept.as expressly set forth hi such warranty form, no warranty, µkuther of.merchaaatability, fitttesa for purpose or othenvisc, express or implied in fact or by taw, is given by Lessor with respect to any Leased Equipment and no other further ob' ligution or liability shah( Ire merited by Lessor sty reason. o of tanufacuao, tnodificatson alterat?on, ale nr lease of any Leased Equipment, whether for breach of any wanard, negligence of manufacture or ot,pers• set The Leases! Equipment is leased by lessor to Lessee in its current condition. as if, with all faults, if any, with the express understanding of Lessee: The obligations of Lessor set forth in Manufacturers eairrept warranty form shall be the exclusive remedy. of Lessee for arty breath of warranty. In no event shall Lessor be liable for any general, consequential, or incidental damages, including, without limit stion, any damages for loss of use, loss of profits, or cost of iepait . This Lease shall be go%=ed by the Uniform Commercial Code as edopted nil the State of California as effective and iii force on the date of this Lease. - PICKUP TICKET Page: 1 Lessee: C148681 Job Site: 0006 Page: 89 Grid: E04 Lobar Associates Inc Job Name: West Shore YMCA 4 Barlo Circle Address: 410 Fallowfield Road Dillsburg, PA 17019 Cross Street: Trindle Road City/State/Zip: Camp Hilo PA 17011 Super. Mark Schrum Bus. Phone: 717-432-3249 Job Phone: 717-418-5649 Order No: RO-197988 PO Number: 05249 Order Date: 01/26/07 Job No: Ordered by: Mark Schrum Salesperson: Sara C - Philadelphia Terms: Net 30 days Location: 059 Philadelphia, PA am menus Item Description Date Due Qty Type Serial No. / Qty PULL ALL DIVISION INVENTORY ,Z/S/b7 PA6X12 6' panels -$2f 2iG:; Item rAL_L SB Sand bags 10125/05 21 Item - Al 57UNflS 5>ap h, os - t 1 ?? i 1v C ?; U $ Asia. . 1 CCMP,LETE INSTALLER L- VN I ')-o 4 ? . DATE 9- - OTHER b ` PROMO YES OR gO EXTRAS YES OR O A111c9l-C-VALL -b c05,'V- -77D :1JS . ?Lto}s? 14c..ti-Pg ?{ ?,..>G..? Nc...? O M1 T- C- 17A U- CL? (b Q1 C- XI A d-) CrAL(- S9 Ls r2.4S t o . A 0 7 I* Sf VERIFICATION I, Ric Alfano, hereby state and aver that I have read the foregoing document which has been drafted by my counsel. The factual statements contained therein are true and correct to the best of my knowledge, information and belief although the language is that of my counsel, and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. This statement is made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. RICHARD A , Northeast Division Manager National Cov(structioth Rental t/d/b/a National Rent-? 19183-01407AWNM n r-- - r__a ?.a - . ?- c?> ? ? ? "? _ ,? `rr N -- ? ? , . -cs ?- _?"> -, _` ? ,1 ? ^? MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 19183-01407 Attorney for Defendant National Construction Rental t/d/b/a National Rent-A-Fence VIRGINIA HOSTETTER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 08-5855 VS. NATIONAL CONSTRUCTION CIVIL ACTION - LAW RENTALS t/d/b/a NATIONAL RENT-A-FENCE JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I, Christopher M. Reeser, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on November 20, 2008, I served a copy of Answer with New Matter of Defendant National Construction Rentals t/d/b/a National Rent-A-Fence via First Class United States mail, postage prepaid as follows: Justin Stefanon, Esquire 1847 Center Street Camp Hill, PA 17011 Attorney for Plaintiff Chnstopher M. Reeser "i .. F`, J ?,rrj ?/- MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 19183-01407 Attorney for Defendant National Construction Rental t/d/b/a National Rent-A-Fence VIRGINIA HOSTETTER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 08-5855 vs. NATIONAL CONSTRUCTION CIVIL ACTION - LAW RENTALS t/d/b/a NATIONAL RENT-A-FENCE JURY TRIAL DEMANDED Defendants STIPULATION The parties hereby Stipulate and Agree as follows: 1. Subparagraph 13(g) of Plaintiffs Complaint is stricken. 2. Defendant shall have 20 days from the date of the filing of this Stipulation to file its Answer. Ju ' Stefanon, Esquire 1847 Center Street Camp Hill, PA 17011 Attorney for Plaintiff MARSHALL DENNEHEY WARNER COLE GOGGIN By: 6'1-*? Christopher M. Reeser, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant -V MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 19183-01407 Attorney for Defendant National Construction Rental t/d/b/a National Rent-A-Fence VIRGINIA HOSTETTER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 08-5855 VS. NATIONAL CONSTRUCTION CIVIL ACTION - LAW RENTALS t/d/b/a NATIONAL RENT-A-FENCE JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I, Christopher M. Reeser, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on November 19, 2008, I served a copy of Stipulation via First Class United States mail, postage prepaid as follows: Justin Stefanon, Esquire 1847 Center Street Camp Hill, PA 17011 Attorney for Plaintiff (-I- Christopher M. Reeser f7l! t; N t'+J MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 19183-01407 Attorney for Defendant National Construction Rental t/d/b/a National Rent-A-Fence VIRGINIA HOSTETTER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. NATIONAL CONSTRUCTION RENTALS t/d/b/a NATIONAL RENT-A-FENCE Defendants VS. HARRISBURG AREA YMCA and LOBAR ASSOCIATES, INC Additional Defendants No. 08-5855 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally of by attorney and filing in wiring with the Court your defense or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LOCAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 S. BEDFORD STREET CARLISLE, PA 17013 PHONE: (800) 990-9108 NOTICA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en ersona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 S. BEDFORD STREET CARLISLE, PA 17013 PHONE: (800) 990-9108 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 19183-01407 Attorney for Defendant National Construction Rental t/d/b/a National Rent-A-Fence VIRGINIA HOSTETTER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 08-5855 vs. NATIONAL CONSTRUCTION CIVIL ACTION - LAW RENTALS t/d/b/a NATIONAL RENT-A-FENCE JURY TRIAL DEMANDED Defendants VS. HARRISBURG AREA YMCA and LOBAR ASSOCIATES, INC. Additional Defendants COMPLAINT AGAINST ADDITIONAL DEFENDANTS HARRISBURG YMCA AND LOBAR ASSOCIATES, INC. 1. Additional Defendant Harrisburg Area YMCA (hereinafter "YMCA") is a non-profit corporation organized and existing under the laws of the Commonwealth of Pennsylvania with offices or a principle place of business located at 123 Forester Street, Harrisburg, Dauphin County, Pennsylvania. 2. Additional Defendant Lobar Associates, Inc. (hereinafter "Lobar") is a Pennsylvania corporation with offices or a principle place of business located at 4 Barlo Circle, Dillsburg, York County, Pennsylvania. 3. The Plaintiff in this matter, Virginia M. Hostetter, has filed a civil action against Defendant National Construction Rentals, Inc. Plaintiffs Complaint against National Construction Rentals was filed on October 2, 2008 and was served on National Construction Rentals on October 20, 2008. Plaintiffs Complaint is attached hereto as Exhibit A and is incorporated herein without adoption. 4. Plaintiff alleges in her Complaint against National Construction Rentals that she was injured on October 20, 2006, when she was struck by a chain-link fence which was erected near the entrance of the West Shore branch YMCA located in Camp Hill, Pennsylvania. Plaintiff alleges that the fence was blown over by a gust of wind. 5. Plaintiff alleges that her injuries were sustained as a result of the negligent erection and maintenance of the chain-link fence by National Construction Rentals. The specific allegations against National Construction Rentals are set forth in Plaintiffs Complaint. 6. The chain-link fence referred to in Plaintiffs Complaint was rented by Lobar from National Construction Rentals. The contract between National Construction Rentals and Lobar is attached hereto as Exhibit B. 7. Pursuant to the terms and conditions of the contract between National Construction Rentals and Lobar, Lobar assumed all obligations and liability with respect to its possession of the fence that it leased from National Construction Rentals. 8. Upon information and belief, sometime after the chain-link fence was erected, YMCA directed Lobar to place a placard or sign on the chain-link fence. 9. Upon information and belief, the date on which Plaintiff was allegedly injured is a day in which the prevailing weather conditions included high winds. 2 10. Upon information and belief, the chain-link fence blew down only in the section where the sign that the YMCA directed Lobar to post was attached to the chain-link fence. 11. Upon information and belief, the presence of the sign on the chain-link fence was a factual cause of the chain-link fence blowing over because the high winds could not pass through the fence and instead created a "sail effect." COUNT ONE Negligence National Construction Rentals vs. YMCA 12. The averments in Paragraphs 1-11 are incorporated herein by reference. 13. The decision, request or requirement and post by YMCA on Lobar to post a sign on the chain-link fence created a dangerous condition because the fence, which was otherwise erected in a safe manner, became subject to being blown over as a result of winds which are not uncommon in Central Pennsylvania. 14. Should it be judicially determined that National Construction Rentals is liable to Plaintiff, National Construction Rentals asserts a claim for indemnification and contribution against Additional Defendant YMCA, as YMCA is jointly and severally liable with National Construction Rentals and liable over to National Construction Rentals for the full amount of any such liability and/or the comparative share of YMCA's liability. WHEREFORE, Additional Defendant National Construction Rentals requests judgment in its favor and against Additional Defendant Harrisburg Area YMCA. COUNT TWO Vicarious Liability 15. The averments in Paragraphs 1-14 are incorporated herein by reference. 3 16. Lobar acted as the servant, agent, representative or employee of YMCA while performing construction at the West Shore YMCA and in erecting the aforementioned chain-link fence. 17. YMCA retained control of the work site and the means and method of Lobar's performance of work at that site and failed to exercise that control with reasonable care to insure the safety of people in the position of Plaintiff. 18. YMCA is vicariously liable for the actions of Lobar while performing construction at the West Shore YMCA. 19. Lobar maintained the aforementioned chain-link fence in a negligent manner as set forth above. 20. Should it be judicially determined that National Construction Rentals is liable to Plaintiff, National Construction Rentals asserts a claim for indemnification and contribution against Additional Defendant YMCA, as YMCA is jointly and severally liable with National Construction Rentals and liable over to National Construction Rentals for the full amount of any such liability and/or the comparative share of YMCA's liability. WHEREFORE, Additional Defendant National Construction Rentals requests judgment in its favor and against Additional Defendant Harrisburg Area YMCA. COUNT THREE Negligence National Construction Rentals v. Lobar 21. The averments in Paragraphs 1-20 are incorporated herein by reference. 4 22. Lobar posted a sign on the chain-link fence which created a dangerous condition because the fence, which was otherwise erected in a safe manner, became subject to being blown over as a result of winds which are not uncommon in Central Pennsylvania. 23. Should it be judicially determined that National Construction Rentals is liable to Plaintiff, National Construction Rentals asserts a claim for indemnification and contribution against Additional Defendant Lobar, as Lobar is jointly and severally liable with National Construction Rentals and liable over to National Construction Rentals for the full amount of any such liability and/or the comparative share of Lobar's liability. WHEREFORE, Additional Defendant National Construction Rentals requests judgment in its favor and against Additional Defendant Lobar. COUNT FOUR Contractual Claim for Indemnification National Construction Rentals v. Lobar 24. The averments in Paragraphs 1-23 are incorporated herein by reference. 25. Attached hereto as Exhibit B is a copy of the terms and conditions of the agreement between National Construction Rentals and Lobar. Under the terms of the agreement, Additional Defendant Lobar is required to indemnify, defend, and hold harmless National Construction Rentals and its employees, from and against all claims, loss, or damage, including attorney's fees arising as a result of injury or death to any person including but not limited to agents or employees of Lobar. Lobar is also required to reimburse National Construction Rentals for all expenses, losses, liabilities, claims of any type, including reasonable attorney's fees imposed on or incurred by National Construction Rentals as a result of Lobar's use or operation of National Construction Rentals' equipment or as a result of Lobar's failure to perform any terms of the lease agreement. 26. Pursuant to the terms and conditions of the agreement between Lobar and National Construction Rentals, National Construction Rentals is entitled to defense and indemnification from Lobar and National Construction Rentals asserts a claim for defense and indemnification. WHEREFORE, Additional Defendant National Construction Rentals requests judgment in its favor and against Additional Defendant Lobar. MARSHALL DENNEHEY WARNER COLEM GOGGIN By: Christopher M. Reeser, Esquire Attorney for Defendant National Construction Rentals ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Dated: December 3, 2008 6 EXHIBIT A V. Anthony Stefanon, Esquire I.D.#25497 Justin Stefanon, Esquire 1.0.#204580 407 North Front Street P.O. Box 12027 Harrisburg, PA 17108-2027 Attorney for Plaintiffs VIRGINIA M. HOSTETTER, Plaintiff vs. NATIONAL CONSTRUCTION RENTALS, INC. t/d/b/a NATIONAL RENT-A-FENCE Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 3o CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint is served, by entering a written appearance personally or by attomey and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 NOT1CiA Le han demandado a usted on Is corbe. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) digs de plazo al partir de Is fecha de Is demands y Is notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en Is corte en forma escrita sus persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier quaja o alivio que es pedido en la petition de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ASAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 Justin Stehnon, Esquire PA Bar IDS 204580 1847 Center Street Camp Hill, PA 17011 (717) 761-6162 VIRGINIA M. HOSTETTER, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, vs. PENNSYLVANIA NATIONAL CONSTRUCTION RENTALS, INC. t/d/b/a NATIONAL No. O$- S'8SS L`T RENT-A-FENCE CIVIL ACTION - LAW Defendants JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff is Virginia M. Hostetter, an adult individual residing at 111 November Drive, Apartment 1, Camp Hill, PA 17011. 2. Defendant National Construction Rentals, Inc. t/d/b/a National Rent-A-Fence (hereinafter "National") is a California corporation, registered in Pennsylvania, with offices or principal place of business located at 52 South Third Street, Fernwood, Delaware County, Pennsylvania, which corporation regularly conducts business in Cumberland County, Pennsylvania. 3. On October 20, 2006 Plaintiff Virginia M. Hostetter was struck by a chain-link fence which was erected near the entrance to the West Shore Branch YMCA at 410 Fallowfield Road, Camp Hill, Cumberland County, PA; which fence was blown over by a gust of wind. 4. Plaintiff was thrown to the ground causing injuries including a transverse fracture of her right humerus and nerve damage in her right arm. 5. The injuries suffered by Virginia M. Hostetter were caused by the negligent erection and maintenance of the aforementioned fence as will be more fully set forth hereinafter. 6. As the result of the aforesaid injuries, Virginia M. Hostetter has undergone an extended course of medical care and treatment including inpatient and outpatient hospital care; surgeries; doctor's visits; medications; and related care and treatment, all of which have caused her to incur medical expenses for the aforesaid care and treatment. 7. As the result of the aforesaid injuries, Virginia M. Hostetter has individually endured great mental and physical pain, anguish, distress, and suffering, and will continue to endure such conditions for the remainder of her natural life. 8. As the result of the aforesaid injuries, Virginia M. Hostetter has suffered both temporary and permanent disabilities and has been prevented from attending to the normal activities of her daily life, all of which have resulted in aggravation, inconvenience, embarrassment and humiliation. COUNTI NEGLIGENCE VIRGINIA M. HOSTETTER V. NATIONAL 9. The averments of the foregoing paragraphs 1 through 8 are incorporated herein by reference. 10. Defendant National was contracted by Lobar Associates, Inc. to lease and erect the aforementioned chain-link fence at the West Shore Branch YMCA as part of a construction project. 2 11. On or about October 25, 2005, Defendant National erected the aforementioned fence at the site of the West Shore Branch YMCA and maintained ownership and control of the fence up to and including the date of the incident which . gave rise to this cause of action. 12. Defendant National erected and maintained the aforementioned fence in a negligent manner as further set forth below. 13. The design, construction, maintenance and monitoring of the chain-link fence were negligently performed in the following respects: (a) The bottom of the fence was not weighted down by sandbags, concrete blocks, piles of dirt, or any other object; and (b) The fence was not secured to the adjacent building or to any object permanently affixed to the ground by any means; and (c) The section of fence which struck Mrs. Hostetter was not secured at its upper comers to the adjacent sections of fence; and (d) The fence lacked any type of safety device, signs, warnings, or labels to alert pedestrians to the risk of walking adjacent to said fence in its unsecured condition; and (e) The fence was erected adjacent to the entryway to a public building, commonly used by children and the elderly; and (f) Defendant National did not provide sufficient instructions, signs, warnings, or labels to the lessee of the fence, Lobar Associates, Inc. to ensure ongoing safety in the maintenance, monitoring, and use of the fence. (g) The fence suffered from such other defects as may be identified through 3 continuing investigation and discovery. 14. Defendant National knew or should have known that the unsecured fence in close proximity to the entrance of the West Shore YMCA presented a substantial likelihood of injury and unreasonable risk of harm or damage to persons in the position of Virginia M. Hostetter, should have expected that such persons would not discover or realize the danger or would fail to protect themselves against it, and failed to exercise reasonable care to protect such persons against said danger. 15. Defendant National knew or had reason to know the that fence was or was likely to be dangerous for the use for which it was supplied, had no reason to believe that those for whose use the fence was supplied would realize its dangerous condition, and failed to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous. 16. The aforesaid negligence by Defendant National caused the injuries and damages suffered by Virginia M. Hostetter as set forth in the foregoing paragraphs. 4 WHEREFORE, Plaintiff demands judgment against National for special damages, general damages, delay damages, interest, and costs of suit, in an amount which exceeds the limit of compulsory arbitration under the local rules of the Court of Common Pleas of Cumberland County, Pennsylvania. RESPECTFULLY SUBMITTED. By DATE: ?0 L ©g 1847 Center Street Camp Hill, PA 17011 (717) 761-6162 VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing COMPLAINT are true and correct to the best of her knowledge, information, and belief. This Verification is made subject to the penalties of 18 Pa C.S.A. C 4904 relating to unswom falsification to authorities. DATE: 6 ) O t 6 M-iq W O C7 G= c. G N 0 0 r,» O C"7 --i 1 N C-n O -n 133 C7'I J T C rn v EXHIBIT B Tel: (800) 352-5675 www.rentnational.com Lessee: C148681 Lobar Associates Inc 4 Barlo Circle Dillsburg; PA 17019 Bus. Phone: 717-432-3249 Job Site: Job Name: Address: Cross Street: City: Super: Job Phone: Page: 1 0006 Page: 89 Grid: E04 West Shore YMCA 410 Fallowfield Road Trindle Road Camp Hill, PA 17011 Mark Schrum 717-418-5649 Order No: RO-197988 Order Date: 10/20/05 Ordered by: Mark Schrum Terms: Net 30 days Est. CAY Actual Qty item Description * oQc'AR*f- z-? U 6' panels o? Sand bags Notes: ""$750.00 MINIMUM APPLIES TO THIS CONTRACT- " FALLOWFIELD ROAD IS A SMALL STREET OFF OF TRINDLE' PO Number: Job No: Salesperson: Location: UOM From/Thru Ft 10/25/0510125106 Ea 10/25/05 10!25105 05249 Sara C - Philadelphia 059 Philidelphia Install Service Rental Extended One-Time Rate Rate Total 5.09 7.00 INSTAUER USE ONLY Paid By: ? Cash ? Check # [] CORE DRILLING - AT PER FT. - ?OTHER CHARGES AT PER FT. - Arafbo "d Signature for Move: Latsee must Call to order removal of rental equipment Lessor requires 10 womn days for removal upon notke of termination of lease. Lessor, as defined M paragraph 1 of the Terns and Conditions on the reverse side hereof (lessor!, agrees to fumish the property/equipment gWfled above for Installation and one trip removal. Additional tdps for repair, relocation or removal will be Mtied at Lessor's prevailing rate. Alter tidrty (30) calendar days, K any amount due has act been paid In fun, Lessor shall have the right to remove rental equipment and terminate this Contract. In addition, Lessee agrees to pay Lessor's attorney's fees and er 9;0 Incurred to enfor a peymerd of delinquent Mils. Time Confirmed Date Time Arrived D Zd ? Cotfpty Installed /44 rC ?J Removed Rv M y? - / EPrirtt Name) ?? Qr'1\ t_ s r v w1 Lessee (Prim Name) j. I fi WV1, Ant! k-VnU1 l imflno 1. Lessor and Lessee: National Construction Rentals, inc. Worr National Rent-A-Fence, Co prior National Mobile Storage, Co., Vor National Sanitation, Co., Wor National Power Pale, Co., ("Lessor"), hereby leases to Customer ("Lessee"), and Lessee hereby accepts the leased equipment ('',eased Equipment') subject to the following provisions. 2: Lessees authority: Lessee Warrants and represents that it has the right and authority to authoriie Lessor to enter upon lie property where the Leased Equipment is to be located for its installation, repair, relocation, and/or removal. Lossee warrants that any right of way provided by Lessee fromilie• location where the Leased Equipment is to be stored to the most convenient public way is sufficient to bear the weight of the Leased Equipment and vehicles reasonably required to perform the services herein contracted. It is the intent of this Lease that Lessor shall not be responsible for darnage to any private pavement or accompanying subsurface on any route reasonably necessary to perform the setwiers herein contracted. To the extent any claims are asserted or litigation tiled against Lessor as a result of damage to pavement, roadways, or the like, Lessee hereby agrees to defend and indemnify Lessor against all such claims or actions, at Lessee's sole cost and expense. 3. Default: To the extent allowed by law, Lessee hereby expressly consents to Lessor or its agents entrance upon the property where the Leased Equipment is located for the purposo of removia the Leaned Equipment, without notice, legal process or prior judicial hearing, if a) Upon unnittation of this Lease for any reason, Lessee does not cooperate to voluntarily return the Lease Equipment; b? Lessor exercises any of its rights to retake the Leased Equipment as permitted by operation of law; and/or c) Lessor and/or is agents retake the Leased Equipment to protect it from loss, destruction, or damage. Lessee expressly agrees to allow Lessor and/or its agents to break the lock or seal, if any, on the Leased Equipment. Lessee further expressly agrees to pay all costs and expenses incurred by Lessor in retaking the Leased Equipment, including but not limited to payment of all expenses incurred by the use of repossession agents. Lessee expressly waives all claims for damages and losses physical and pecuniary, caused by retaking the Leased Equipment by Lessor and/or is agents. Lessor .shall not be responsible for damage to pproperty in the container(s) if any, during retaking, and, to the extent permitted by law, Lessor shall have the right to either empty the contents of the container(s) at the location where the contains is/are located or to take possession of the property and sell the properly within the container(s) and onset the costs, expenses, and charges incurred by Lessor during the repossession and to pay any debt of Lessee to Lessor. 4. • Use of Qroperty: The Leased Equipment shall be used solely in Lessees business and kept only at the property specified herein and shall not be removed therefrom without prior written consent of L essoi Leased Equipment shall be used only within its rated capacity and shall not be used (a) in violation of any law or ordinance and (b) by anyone other than (i) Lessee, (ii) Lessee's employee in the course of such employee's regular employment, or (iii) authorized agents of Lessee. Lessee is responsible for obtaining all required street or other permits. 5. Rent: Lessee agrees to fay rent due at the rate .set forth on Page 1 of this Lease until such time as the Leased Eytiipment is returned to Lessor and the Lease is paid in full. a. Fence rentals: Fencing is to be measured upon installation and billed accordingly. The rental price includes installation and removal of chain link or panels. Upon expiration of the rental period, 18 /u of the original contract amount will be charged per month until the fence is removed. Rented fences are not permanent fences and do not meet stateswinuning pool inspection codes. Lessor assumes no liability for Lessee's use of rented fences. Lessee is solely obligated to ensure compliance with all applicable laws. b. Portable toilets: A portable toilet cleaning service is available at Lessee's option and expense. c. Other Equipment: All other tangible property that is made available at Lessees option shall require a separate agreement documenting the terms of the service. 6. Compliance with applicable law:: Lessee shall, at its own expense, comp) with all state, federal and local rows and regulations affecting the leased Equipment and its use, erection, dearest, and transpoRation, including licensing and building code requirements, and shall defend indemnify and ho d Lessor harmless frwrh all loss, liability or expense resulting from at ttsl or ssseRed violations of any such laws, requirements; or regulations. Lessee is responsible for any state, local, or federal taxes, including any property taxes that may apply to the leased ^roperty. Obtaining permits cepplicable to the Lensed Equipment is Lesstt's sole responsibility. The exact manner m which the Leased F,quipme tit will be used and the trade or o:cupation of Lessee and tlrie qualifications of Lessee arc beyond the control of Lessor. Lessor therefore expressly disclaims any responsibility for Lessee's compliance or failure to nomply with OSILA antL'or other governmental safety or health regulations or standards. 7. Lessee's responsibility. Lessee assumes all obligations and liabilities with. respect to possession of the Leased Equipment, and for its esz, condition and storage doting the Luse. Leaseo-shall, at Lessees own expense, maintain the Leased Equipment in good condition and in good working order. The reot on the Leased equipment will not be prorated or abated while the Leased Equipment is being serviced or repaired. ht addition, it shall be Lessee's sole responsibility to survey the property on which the Leased Equipment shall be utilized and adequately mark the location of all underground utilities, such that Lessor or Lessor's agentsare properly notified off such unaergrouna utilities. Such undcrgrourd utilities includes, but is not limited to, telephone lines, sprinkler lines, and fiber optic cables.. 8. Damage to property: While the Leased Equipment is in Lessees possession, lessee shalt pre-rent any conttaniaation of such Leased Equipment with or from radioactive, volatile, tlaz6mable, explosive, toxic or other hazardous material (including oils. solvents, medical wastes,.unsanitwry materals, food stuffs, dead animals, paint, petroleum products, chemicals, asbestos batteries or tires). In the event of any such contamination, Lessee. at its sole expense, shall lawfully remove and dispose or such contamination, and upon request by Lessor, provide documentation thered-HLessee fiAto dispose of the contamination at the request of Lessor or ariv governmental official, Lessor may remove and dispose of same with all costs associated with said removal and disposal to be charged to Lessee. Lessee agree; to pap all toss associated Herewith. Any and all cost and expense which results fiom loss, damage or the destruction of the Leased Equipment or any part thereof from any cause whatsoever, ihcludnn but not limited to fire.. theft, comprehensive losses, collision, upset, vandalism, accident, negligence. abuse, graffiti, Acts of God and public enemy shall be the sole responsibility of Lessee and shall be paid to Lessor to restore or replace said Leased Equipment within 10 days of receipt of invoices therefore. Lessee further agrees to return the Leased Equipment in the same condition it was in at installation. Lessee is hereby responsible for all damage or loss to the Leased Equipment even if someone else caused the damage or loss or the cause of the dima a or loss is tmlmown. Lessee is responsible for the cost of repair up to the value ofthe Leased Equipment or if the leased Equipment is irreparable, Lessee shalt pay the replacement cost of the Leased uipment. Lessee further assumes all risk and liability for the death of or injury to any person or property and for all other risk and liability arising from the possession, tme or storage of the Leased uipment. Lessee shall notify Lessor immediately of any accident, occurrence, or failure involvire the leased Equipment, and promptly firth sn to Lessor in Waiting all information required in :ontrection therewith. 9. Optional Property Damage Waiver: Should Lessee accept Dantage Waiver, and crovidcd that the Lensed Equipment is not being at'l zed in t iolation of the Lease, Lessor shall waive am claim against Lessee for damage to the Leased Equipment Nom ithstandirg Lessee's ac.:eptance, of the Damage Waive-, and any damage due to f)_e, theft or anise shall remain the responsibility of Lessee. Note: Damage waiver will not cover destiayed units, or theft; only damaged property. 10. Prohibition against subletting or assigning: Lessee shall not s. bict the Leased Equipr.,ent, assign or transfer this Lease, or uti:erttisc hire duel, -par! With possession ofany said Leased Equipment to any person, firm, partnership, association or corporation other than Lessor, without the prior wrauen conscatt of Lessor. If. Indemnity: Lessec shall inderm&v, defend and hold harmless Lesser, and its agents and emplo =, from and against all cairns. loss or damage, ircluding attorneys fees arising as a result of (a) loss or damage to the Leased Equipment, the property on which the Leased Equipment is 047.ed or stored and any uudergrqund utilises or other subierrancm articles, the existence and location of which Lessee knew or should have known, due to any cause (except for the inteaticnai conduct of Lessor); (b) in;my to or death of any ?ersor including but not limited to agents or employees of lessee; or (c) damage to any property arising from the use. condition, possession, or storage of the Leased Equipment. Lessee shall furtiter reimburse Lessor for all expenses, losses, liabilities, claims of any rvpe, including reasonable attorney's fees, imposed on or incurred by Lessor as a result of Lessees use or operation of the Leased Equipment, or as a result Of Lessee's failure to perform any terms of dos Lease. 12. Litigation: Should acy claims be asserted or litigation commenced concerning this Leased or the Leased Equipment, the Party prevailin in such litigation shall be entitled to recover its reasonable attorney's fees and costs incurred as a result of such claims of liligation, in addition to sucla other relief as maybe alloucd by'iaw imfudmg aKOrn^y's fees incurred in any bankruptcy or appellate proceeding. i 13. Severability: The invalidity of any provision of this Lease, as detcr.rdrned by a cow: of competent jurisdiction shall in no say aftect the validity of an'y other provision hereof. 14. Integrated agreement: Lessee and Lessor a^rec that this Lease is the cbmpi•+ie 3n.d exclusive suitenient of the agreement between tho parties, which supersedes and merges all prior proiposa R, undcrstandines and all other agreements, orate[ or w; itt'n between the pasties. Lessor's failure to object tc previsions contain.d it any commun: a!ion from Lessee shall not be deemed an acceptance thereof or waiver of any provision of this Lease. 15. Construction of this Lease: L ;sor and Lessee understand, agree, and acknowledge that. ( i) this Lease has been freely negotiated by both parties; and (b) that in any controversy, dispute, of amtest over the meaning, interpretation, validity, or enforcement of this Lease, or .:ay of its terns cr eonditions, ihere shall be no i hfertmoe, presumption or conclusion drawn whatsoever against either party try virtue o, that patty having drafted this Lease or any portion Liiereof. Additional Tenor. Prices do not include any federal, star; or local taxes or other governmental fees. assessmonts or charges on the Leased equipment. Whenever applicable, the taxes or other fees, assessments or charge will Ix for the account of Lessee and may be added to the invoice as a sepataie charge to be pzQ by Lessee. Ontission of ar taxc; cc fiats does not limit Lessee's obligation for payment. All risks of loss or damage to the-Leased Equipment shall be bonne by Lessee following delivery at the delivery point specified on the face of this order. Cost of transportation from the detivery point will be for Lessee's account. L-ssor reserves the right to select the means of shipment and earner, if any, unless spe,, tic shipping instructions arq received from Lessee. Lessor shall not be lii.bie for delays in delivery or nor-delivery of all or art of the Leased Equipment resetting fhont any cause beyond its control; includijg without limitation, act of God, fire, flood, strike, lockout, factory shutdown or alteration., act .1ciyil or militay authority, insurrection, not, war. tra uportatlon shortage or delay, weather, accident, operations of law of govemmental regulations, or delay in obtaining or inability to obtain labor er material. Delivery dues will be extendrd to the extent of delays icmpiuug from the circumstances described above, and no delivery shall be deemed overdme regardless of cause if delivery is made within ninety (90) days from the estimated delivery:d2te Lessor's liability for failure to deliver the Leased Equipment, regardless of cause, will be limited to the pay-petit to Lessee of such part of the rent as Lessee may have paid to Lessor. In no event shall Lessor be liable for any consequential or special damages. Lessee acknowledges that Lessor is not the manufacturer of the Leased Equipment and that the sole wacraaty tttade: i'ith respect to the. Leased Equipment is that trade, and given by Manuft.chuor as ' set forth in Manu.actures's current warranty form. l xcept.w expressly set forth in such warranty form, no warranty, twhethe- of merchantability, fitness fur or othe express in implied in fan or by law, is given by Lessor with respect to any Leased Equipment, and no other further obligation or liability s'ra2j b4 incurred by Lessor in y reason o ntianuf acttire , in oth rcahon alteration, We or lease of any Leased Equipment, whether for breach of any war ant, negligence of manuCactur- or whervi user The Leased Equipment is leased by Lessor to Lessee in its'current condition, as if, with all faults, if any, with the express understanding of Lessee: The obligations of Lessor set forth in Manufacturers current •aarrauty form shall he the exclusive remedy. of Lessee for env breach of warranty, In no event shall lessor be liable for any general, consequential, or incidental damages, including, without limitation, any damages for loss of use, Jbas of profits, or cost of iepair. . This Lease shall be governed by the Uniform Commercial Code as edepted nn the State of California as effective and in force on the date of this Lease. PICKUP TI CKET Page: 1 Lessee: C148681 Job Site: 0006 Page: 89 Grid: E04 Lobar Associates Inc Job Name: West Shore YMCA 4 Barlo Circle Address: 410 Fallowfield Road Dillsburg, PA 17019 Cross Street: Trindle Road City/State/Zip: Camp Hill PA 17011 • Super: Mark Schrum Bus. Phone: 717-432-3249 Job Phone: 717-418-5649 Order No: RO-197988 PO Number: 05249 Order Date: 01/26/07 Job No: Ordered by: Mark Schrum Salesperson: Sara C - Philadelphia Terms: Net 30 days Location: 059 Philadelphia, PA Shi ments Item Description Date Due Qty Type Serial No. / Qty PULL ALL DIVISION INVENTORY PA6X12 6' panels -e2ff aw Item ?l l SB Sand bags 10/25/05 21 Item Al S?W'bS 5 ??p ti Y it COMPUTE INSTALLER Lw jo ";?- DATE - C OTHER Q b PROMO YES OR FNq EXTRAS YES OR AW O-1 , G rAc_ LA,_ 0 c o s ue- -VZD ,'1.? S _ A Lto ?s ? l4 ctiPS C? ? ?-? G.- ? ra c?. _. 0 ?a T... 05-\ ,c. IAA.- tic) fbac-Nc.. 04 01 CtALc.'- V C--P. S% VQ tL C,S c-u r--,ti 9.'5107, VERIFICATION I, Richard Alfano, hereby state and aver that I have read the foregoing document which has been drafted by my counsel. The factual statements contained therein are true and correct to the best of my knowledge, information and belief although the language is that of my counsel, and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. This statement is made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. RICHA ALF NO, Northeast Division Manager National Construction Rental t/d/b/a National Rent-A-Fence 19183-01407AWNM- joinder complaint 6 n ? ? ti _ O s Co { MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 19183-01407 Attorney for Defendant National Construction Rental t/d/b/a National Rent-A-Fence VIRGINIA HOSTETTER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 08-5855 VS. NATIONAL CONSTRUCTION CIVIL ACTION - LAW RENTALS t/d/b/a NATIONAL RENT-A-FENCE JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I, Christopher M. Reeser, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on December 3, 2008, I served a copy of Complaint Against Harrisburg YMCA and Lobar Associates via First Class United States mail, postage prepaid as follows: Justin Stefanon, Esquire 1847 Center Street Camp Hill, PA 17011 Attorney for Plaintiff Christopher M. Reeser C`J C ? $ Y ? 'T1 m ? Y' Fm u co Anthony Stefanon, Esquire I.D. #25497 Justin Stefanon, Esquire I.D. #204580 1847 Center Street Camp Hill, PA 17011 Attorneys for Plaintiff VIRGINIA M. HOSTETTER, Plaintiff vs. NATIONAL CONSTRUCTION RENTALS t/d/b/a NATIONAL RENT-A-FENCE Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 08-5855 CIVIL JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT NATIONAL FENCE AND NOW comes Plaintiff above named, by her attorneys, and replies to the New Matter of Defendant as set forth in the following paragraphs: 17. Denied. Plaintiff sustained injuries on October 20, 2006. Plaintiff's Complaint was filed on October 2, 2008. 18. Denied. The averments of this paragraph are conclusions of law not requiring answer by Plaintiff. Furthermore, Plaintiff specifically denies any causal negligence. 19. Denied. The injuries and damages suffered by Plaintiffs were caused by the acts and omissions of Defendant as set forth in Plaintiffs' Complaint. 20. Denied. The averments of this paragraph are conclusions of law not requiring answer by Plaintiff. 21. Denied. The averments of this paragraph are conclusions of law not requiring answer by Plaintiff. WHEREFORE, Plaintiff demands judgment in accordance with the prayer for relief set forth in Plaintiff's Complaint. DATE: / U O I RESPECTFULLY SUBMITTED, By: JUSTIN STEFANON, ESQUIRE I.D. #204580 1847 Center Street Camp Hill, PA 17011 (717) 761-6162 VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing PLAINTIFFS REPLY TO NEW MATTER OF DEFENDANT NATIONAL FENCE are true and correct to the best of her knowledge, information, and belief. This Verification is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. G a G 1,4 C1 le Virginia M. Hostetter Date: ? d 0 CERTIFICATE OF SERVICE The undersigned hereby certifies that, on the date below written, he served a true copy of the foregoing PLAINTIFFS REPLY TO NEW MATTER OF DEFENDANT NATIONAL FENCE upon the person listed below, at the address set forth, by First Class United States Mail: Christopher M. Reeser, Esquire MARSHALLDENNEHEY 4200 Crums Mill Rd, Ste. B Harrisburg, PA 17112 Attorney for National Fence DATE: RESPECTFULLY SUBMITTED, By: JUSTIN STEFANON, ESQUIRE I.D. #204580 1847 Center Street Camp Hill, PA 17011 (717) 761-6162 C1 ?.a C. L X . l "+p5 + . y ?? r7 I 7 p ; r ` ?r_• -ZY t? ? =r _e SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-05855 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HOSTETTER VIRGINIA M VS NATIONAL CONSTRUCTION RENTALS R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named ADD'TL DEFEND. LOBAR ASSOCIATES INC to wit: but was unable to locate Them deputized the sheriff of YORK in his bailiwick. He therefore serve the within COMPLAINT JOINING ADDL County, Pennsylvania, to On January 7th , 2009 , this office was in receipt of the attached return from YORK Sheriff's Costs: So answer Docketing 18.00 _ Out of County 9.00 Surcharge 10.00 R- Thomas K1' e Dep York County 45.23 Sheriff of Cumberland County Postage .98 83.21 01/07/2009 MARSHALL DENNEHEY WARNER COLEM Sworn and subscribe to before me this day of A. D. rz- r X-r...? - r ?} !. .. Y } ( ? ?I PENNY PRESS OF YORK, INC. Ph (717) 843.4078 Fax (717) 848-1360 COUNTY OF YORK 7 ; 9601E VIC OFFICE OF THE SHERIFF SER ) 45 N. GEORGE ST., YORK, PA 17401 SHERIFF SERVICE ? TYPE NSINM ONLY LPE 1 T4M 12 PROCESS RECEIPT and AFFIDAVIT OF RETURN DO NI H' WACH ANY COPIES 1 PLAINTIFF/S/ 2 COURT NUMBER Virginia Hostetter 200 -5855 Civil 3. DEFENDANTIS/ 4. TYPE OF WRIT OR COMPLAINT NOTICE,CAAD National Construction Rentals, et al Notice & Comp. Addl Deft SERVE nnmc ?r Irrulvluur,L, wmrrnT, Lvnrvrw nvrv, Iv atrcvt arc utaL rcrr nvn yr rrcvrcrcl r lU tat LCVItU, NI 1Rkt,"tU, UK OULU Lobar Associates, Inc. 6. ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO, CITY, BORO. TWP, STATE AND ZIP CODE) AT 4 Barlo Circle, Dillsburg, PA 17019 7. INDICATE SERVICE O PERSONAL PERSON IN CHARGE O DEPUTIZE 0 CER . MAI 1ST CLASS MAIL O POSTED O OTHER NOW 12/9/08 20 I, SHERIFF O $If, PA, do hereby deputize the sheriff of -k COUNTY to execute r d make yet r jotWreof according to law. This deputization being made at the request and risk of the plaintiff. 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE. OUT OF Cumberland ADV FEE PAID BY ATTY NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before shenfrs sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATUNRISTOPHER M. REESER, ESQ. 10. TELEPHONE NUMBER 11. DATE FILED 4200 CRUMS MILL ROAD, STE B, HARRISBURG, PA 17112 17-651-3509 112-8-08 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed). CUMBERLAND CO SHERIFF 13. 1 acknowledge receipt of the wrd 14. DATE RECEIVED 15 Expiration/Hearing Date or complaint as indicated above. MJ MCGILL YCSO 12-11-2008 1-7-09 16. HOW SERVED: PERSONAL ( ) RESIDENCE ( ) POSTED( ) POE( ) SHERIFF'S OF FICE ( ) OTHER SEE REMARKS BELOW 1 . O I hereby certify and eturn a NOT FOUND because I am unable to locate the individual, company, etc. n . ( r narks below.) 18. - AND TITLE IDYAL SERVED `II LIST A RESS HEREOF OT SHO VE ela to LM I NG 19. Date of Service jz--16 20 Time of Service 310M 21. ATTEMPTS Date Time Int. Date Ti Miles Int. Date Time Miles Int. Two Miles nl. Dale I A m] Miles Int. Date Time Miles Int. 22. 23. Advance Costs 24. Service Costs 25. N/F 26. Mileage 27. Postage 28. Sub Total 29. Pound 30. Notary 31. Surchg. 32. Tot. Costs 33 Costs Due eland Check No $100.00 ' ac I l a 2 A31 V46 A. 3 1 1 6-001 - 34. Foniyrt County Costs 35. Advance Costs 36 Service osts 37. Notally Cert. 38. Mdeage/Postage/Not Found 39. Total Costs 40. Costs Due or Retund 41 AFF SO ANSWERS . 42. 4+. p. Sheriff of Deep. Sheriff 45. DATEr NOTARIAL SEA Y I NOTA Y 46. Signature of York 1 47. DATE LISA L. BOWMAN, NOTARY PUBLIC County Sheriff - CITY OF YORK, YORK COUNTY MY C RICHARD P. KE , S 'RIFF ? 12-30-08 OMMISSION EXPIRES AUG. 12, 2009 48. Signature of Foreign 49 DATE County Sheriff 1?. Randall G. Gale, Esquire PA # 26149 THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7648 Attorney for Defendant Harrisburg Area YMCA VIRGINIA HOSTETTER Plaintiff, v. NATIONAL CONSTRUCTIONAL RENTALS t/d/b/a NATIONAL RENT-A-FENCE Defendants, v. HARRISBURG AREA YMCA and LOBAR ASSOCIATES, INC Additional Defendant. : THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 08-5855 JURY TRIAL DEMANDED NOTICE TO PLZAD TO: Plaintiff Virginia M. Hostetter You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a Judgment may be entered against you. TO: Additional Defendant Lobar Associates, Inc. and Defendant National Construction Rentals t/d/b/a National Rent-A-Fence You are hereby notified to file a written response to the enclosed New Matter and Cross Claims within twenty (20) days from service hereof or a Judgment may be entered against you. THOMAS, TH04AS & HAFER, LLP Date: By: Rand 1 G. Gale, Esquire Attorney No. 26149 305 North Front Street, 6th FL P.O. Box 999 Harrisburg, PA 17108-0999 Phone: (717) 255-7648 Fax: (717) 237-7105 Email: rgale@tthlaw.com 675363.1 11 6 Randall G. Gale, Esquire PA # 26149 THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7648 Attorney for Defendant Harrisburg Area YMCA VIRGINIA HOSTETTER Plaintiff, V. NATIONAL CONSTRUCTION RENTALS t/d/b/a NATIONAL RENT-A-FENCE Defendant. V. HARRISBURG AREA YMCA and LOBAR ASSOCIATES, INC. Additional Defendants. : THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION - LAW NO. 08-5855 JURY TRIAL DEMANDED AND NOW, comes the Defendant Harrisburg Area YMCA (hereinafter "YMCA") and files this Answer and New Matter and Cross Claims to the Complaint against Additional Defendant YMCA and Lobar Associates, Inc. (hereinafter "Lobar"). 1. Admitted. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that Plaintiff Virginia M. Hostetter has filed a civil action against Defendant National Construction Rentals, Inc. and that a copy of the Complaint is attached to the Joinder Complaint. The remainder of the averments of paragraph 3 are neither admitted nor denied in that after reasonable investigation the Answering Additional Defendant is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 4-7. Denied. The averments of paragraphs 4 through 7 of the Joinder Complaint are neither admitted nor denied in that after reasonable investigation the Answering Defendant is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 8. Admitted in part and denied in part. It is admitted that after the chain link fence was erected a sign was placed on the chain link fence. It is denied that Additional Defendant YMCA directed Additional Defendant Lobar to place the sign on the chain link fence. The Additional Defendant YMCA requested permission of Additional Defendant Lobar to place the sign on the chain link fence which permission was provided by Additional Defendant Lobar and the sign was placed by personnel from the Additional Defendant YMCA. 2 9. Denied. The averments of paragraphs 9 of the Complaint against Additional Defendants are neither admitted nor denied in that after reasonable investigation the Answering Additional Defendant is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 10. Denied. It is denied that Additional Defendant YMCA directed Additional Defendant Lobar to place the sign. The sign was placed by YMCA personnel after obtaining express permission from Additional Defendant Lobar to place the sign. The remainder of the averments of paragraph 10 of the Complaint Against Additional Defendants are neither admitted nor denied in that after reasonable investigation the Answering Additional Defendant is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 11. Denied. The averments of paragraph 11 of the Complaint Against Additional Defendants are neither admitted nor denied in that after reasonable investigation the Answering Additional Defendant is without sufficient information to form a belief as to the truth of the 3 averments and they are therefore deemed to be denied and proof thereof is demanded. COUNT ONE NEGLIGENCE NATIONAL CONSTRUCTION RENTALS v. YMCA 12. The Answering Additional Defendant incorporates by reference its responses to paragraphs 1 through 11 of the Complaint against Additional Defendants as if set forth at length herein. 13. Admitted in part and denied in part. It is admitted that Additional Defendant YMCA requested permission from Additional Defendant Lobar to place a sign on the fence which permission was expressly provided and the sign was placed by personnel of Additional Defendant YMCA. The remainder of the averments of paragraph 13 of the Complaint Against Additional Defendants are denied and put in issue pursuant to Pa.R.Civ.P. 1029(e). 14. Denied. The averments of paragraph 14 are denied and put in issue pursuant to Pa.R.Civ.P. 1029(e). WHEREFORE, the Additional Defendant Harrisburg Area YMCA demands that judgment be entered in its favor and against all other parties to this action. COUNT TWO VICARIOUS LIABILITY 4 15. The Answering Additional Defendant incorporates its responses to paragraphs 1 through 14 of the Complaint Against Additional Defendants as if set forth at length herein. 16. Denied. It is denied that Additional Defendant Lobar acted as or was in fact the servant, agent, representative or employee of Additional Defendant YMCA while performing construction at the West Shore YMCA or in erecting the temporary chain link construction fence. 17. Denied. It is denied that Additional Defendant YMCA retained control of the work site or means and method of Additional Defendant Lobar's performance of work. The remainder of the averments of paragraph 17 of the Complaint Against Additional Defendants are denied and put in issue pursuant to Pa.R.Civ.P. 1029(e). 18. Denied. It is denied that Defendant Lobar was a servant, agent, representative or employee of Additional Defendant YMCA. On the contrary, Additional Defendant Lobar was at all times an independent contractor and it is denied that Additional Defendant YMCA is vicariously liable for actions of Additional Defendant Lobar while Additional Defendant Lobar was performing construction at the West Shore YMCA. 5 19. Denied. The averments of paragraph 19 of the Complaint Against Additional Defendants are neither admitted nor denied in that after reasonable investigation the Answering Additional Defendant is without sufficient information to form a belief as to the truth of the averments and they are therefore deemed to be denied and proof thereof is demanded. 20. Denied. The averments of paragraph 20 of the Complaint Against Additional Defendants are denied and put in issue pursuant to Pa.R.Civ.P. 1029(e). WHEREFORE, the Additional Defendant Harrisburg Area YMCA demands that judgment be entered in its favor and against all other parties to this action. COUNT THREE NEGLIGENCE NATIONAL CONSTRUCTION RENTALS V. LOBAR 21. The Answering Additional Defendant incorporates by reference its responses to paragraphs 1 through 20 of the Complaint Against Additional Defendants as if set forth at length herein. 22-23. The averments of paragraphs 22 through 23 of the Complaint Against Additional Defendants are directed to a Defendant other than the Answering Additional Defendant and no response is required. 6 WHEREFORE, the Additional Defendant Harrisburg Area YMCA demands that judgment be entered in its favor and against all other parties to this action. COUNT FOUR CONTRACTUAL CLAIM FOR INDEMNIFICATION NATIONAL CONSTRUCTION RENTALS v. LOBAR 24. The Answering Additional Defendant incorporates by reference its responses to paragraphs 1 through 23 of the Complaint Against Additional Defendants as if set forth at length herein. 25-26. The averments of paragraphs 25 through 26 of the Complaint Against Additional Defendants are directed to a defendant other than the Answering Defendant and therefore no response is required. WHEREFORE, the Additional Defendant Harrisburg Area YMCA demands that judgment be entered in its favor and against all other parties to this action. NEW MATTER 27. The Additional Defendant Lobar Associates, Inc. was not an agent, servant, representative or employee of the Additional Defendant Harrisburg Area YMCA and the Additional Defendant Harrisburg Area YMCA is not vicariously liable for Additional Defendant Lobar Associates, Inc. 7 28. At all times relevant hereto the Additional Defendant Lobar Associates, Inc. was an independent contractor. 29. The Additional Defendant Harrisburg Area YMCA incorporates by reference the Construction Contract with Additional Defendant Lobar Associates, Inc. (attached hereto as Exhibit A). 30. Under Section 3.3. SUPERVISION AND CONSTRUCTION PROCEDURES, paragraph 3.3.1 of the Construction Contract between the Additional Defendant Harrisburg Area YMCA and Additional Defendant Lobar Construction, Inc., it is provided that the contractor shall supervise and direct the work and be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the work including the contract. 31. Under Article 10 of the contract between the Harrisburg Area YMCA and Lobar Associates, Inc. for YMCA West Shore Facility Improvements, which Article is entitled Protection of Persons and Property subparagraph 10.1.2. provided that "the contractor is responsible for construction means, methods, techniques, sequences or procedures, and safety precautions and programs in connection with the work." 8 32. The Additional Defendant Lobar Associates, Inc. was responsible for design, construction, erection, maintenance, securing and monitoring the chain-link construction fence in question and had expressly agreed to YMCA signage on its fence structure. 33. The chain-link construction fence was designed, constructed, erected, maintained, secured and monitored by the independent contractor Additional Defendant Lobar Associates, Inc. 34. The chain-link construction fence in question was under the control of Additional Defendant Lobar Associates, Inc. 35. The Additional Defendant Harrisburg Area YMCA was not negligent, and did not cause injury or damages to the Plaintiff. 36. If Plaintiff suffered injuries as alleged, such allegations being specifically denied, Plaintiff's injuries were caused by persons, entities, occurrences, instrumentalities or events unrelated to and not under the control or right of control of the Answering Additional Defendant. 37. Any acts or omissions of Answering Additional Defendant alleged to constitute negligence were not substantial causes or factors, the proximate cause or cause 9 in fact of the subject incident and did not result in any injuries to Plaintiff. 38. The Additional Defendant Harrisburg Area YMCA at all times material hereto acted in a careful, reasonable and prudent manner consistent with the required standard of care. 39. The negligence, acts and/or omissions of other individuals and/or entities may have constituted intervening, superseding causes of the loss and/or injuries alleged to have been sustained by Plaintiff. 40. The event in question involving wind constituted an "Act of God" for which Answering Additional Defendant was not responsible. 41. To the extent Plaintiff has failed to mitigate her damages any recovery may be limited thereby. 42. Plaintiff's claims may be barred, limited or reduced by the Pennsylvania Comparative Negligence Act. 43. Plaintiff may have entered into a release discharging Answering Additional Defendant from any liability in this matter. 44. Plaintiff's claims are barred by the applicable statute of limitations and any claim in this action for sole liability is barred by the statute of limitations as this joinder occurred beyond the two year statute of limitations. 10 CROSS CLAIM VERSUS ADDITIONAL DEFENDANT LOBAR ASSOCIATES, INC. 45. The averments of Plaintiff's Complaint are incorporated by reference without admission or adoption. 46. The Additional Defendant Harrisburg Area YMCA and Additional Defendant Lobar Associates, Inc. entered into a contract for construction, a copy of which is attached as Exhibit "A." 47. Pursuant to the Construction Contract Additional Defendant Lobar Associates, Inc. agreed as follows: 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES 3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters . . . . 48. Pursuant to the construction contract Additional Defendant Lobar Associates, Inc. agreed as follows: ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY 10.1 SAFETY PRECAUTIONS AND PROGRAMS 10.1.2 . . . the Contractor is responsible for construction means, methods, techniques, sequences or procedures, and safety precautions and programs in connection with the Work . . . 11 49. Pursuant to the Construction Contract Additional Defendant Lobar Associates, Inc. agreed as follows: ARTICLE 11 INSURANCE AND BONDS 11.1 CONTRACTOR'S LIABILITY INSURANCE 11.1.1. Change paragraph to read as follows (retain subparagraphs 11.1.1.1 through 11.1.1.8): "11.1.1 The Contractor shall purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located such insurance as will protect the Contractor and also name as additional insured the Owner, the Architect, and consultants to the Architect, from claims set below which may arise out of or result from the contractor's operations under the Contract and for which the contractor may be legally liable, whether such operations be by the Contractor or by a subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable." `11.1.3.1 The Certificate issued by the Contractor's insurance carrier shall name the Owners, the Architect and the architect's consultants as `Certificate Holders' as well as being named as Additional Insured. 11.1.3.4 Other Insurance: A statement must be included in the description of the certificate of insurance, indicating that the insurance as stated on this certificate is primary to any and all other applicable and collectible insurance coverage's." 12 50. Pursuant to the construction contract Additional Defendant Lobar Associates, Inc. agreed as follows: 3.18 INDEMIFICATION 3.18.1 To the fullest extent permitted by law and to the extent claims, damages, losses or expenses are not covered by Project Management Protective Liability insurance purchased by the Contractor in accordance with Paragraph 11.3, the Contractor shall indemnify and hold harmless the Owner, 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 attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or 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 reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Paragraph 3.18. 51. Additional Defendant Harrisburg Area YMCA made demand on Additional Defendant Lobar Associates, Inc. and/or its insurer to take over its defense and to provide defense and indemnity of Additional Defendant Harrisburg Area YMCA in this case as well as to provide insurance coverage to Additional Defendant Harrisburg Area YMCA pursuant to the 13 ij 1 t terms of the construction contract and insurance provided for therein. 52. To date, neither Lobar Associates, Inc. nor its insurer has taken over the defense, or agreed to provide indemnity or insurance coverage to Harrisburg Area YMCA. 53. Additional Defendant Lobar Associates, Inc. is liable to Additional Defendant Harrisburg Area YMCA for the costs of defense of Additional Defendant Harrisburg Area YMCA in regard to this matter arising out of the construction and for indemnification for any damages for which Additional Defendant Harrisburg Area YMCA may be found liable in this matter. 54. If the allegations of Plaintiff's Complaint are proven, true, in whole or in part, the Additional Defendant Lobar Associates, Inc. may be directly liable to Plaintiff and/or Additional Defendant Harrisburg Area YMCA, jointly and severally liable with Additional Defendant Harrisburg Area YMCA, or liable over to Additional Defendant Harrisburg Area YMCA by way of contract or common law indemnity. 55. The Additional Defendant Lobar Associates, Inc. is joined to protect the Additional Defendant Harrisburg Area YMCA's right to indemnity and contribution and the Additional Defendant Harrisburg Area YMCA alleges that said Additional Defendant Lobar Associates, Inc. is alone liable, 14 jointly and severally liable, are liable over to the Additional Defendant Harrisburg Area YMCA with respect to Plaintiffs' cause of action. WHEREFORE, the Additional Defendant Harrisburg Area YMCA demands that judgment be entered against the Additional Defendant Lobar Associates, Inc. and in favor of the Additional Defendant Harrisburg Area YMCA. CROSS CLAIM VERSUS DEFENDANT NATIONAL CONSTRUCTION RENTALS t/d/b/a NATIONAL RENTAL-A-FENCE 56. The averments of Plaintiff's Complaint are incorporated by reference without admission or adoption. 57. If the allegations of Plaintiffs' Complaint are proven true then Defendant National Construction Rentals t/d/b/a National Rent-A-Fence may be directly liable to Plaintiff, jointly and severally liable with Additional Defendant Harrisburg Area YMCA, or liable over to Additional Defendant Harrisburg Area YMCA. 58. The Defendant National Construction Rentals t/d/b/a National Rent-A-Fence is joined to protect Additional Defendant Harrisburg Area YMCA's right to indemnity and contribution and the Additional Defendant Harrisburg Area YMCA alleges that said Defendant National 15 Construction Rentals t/d/b/a National Rent-A-Fence is alone liable, jointly and severally liable, or liable over to the Additional Defendant Harrisburg Area YMCA with respect to Plaintiffs' cause of action WHEREFORE, the Additional Defendant Harrisburg Area YMCA demands that judgment be entered against Defendant National Construction Rentals t/d/b/a National Rent-A-Fence and in favor of the Additional Defendant Harrisburg Area YMCA. THOMAS, THOMAS & SAFER, LLP By: Ra 1 G. Gale, Esquire Attorney No. 26149 305 North Front Street, 6tn FL P.O. Box 999 Harrisburg, PA 17108-0999 Phone: (717) 255-7648 Fax: (717) 237-7105 Email: rgale@tthlaw.com 675393.1 16 VERIFICATION I, JOHN W. MONSTED, have read the foregoing Answer and New Matter and Cross-Claims of Defendant Harrisburg Area YMCA and hereby affirm that it is true and correct to the best of my personal knowledge or information and belief. This Verification and statement is made subject to the penalties of 18 Pa. C.S. §4904 relating to sworn falsification to authorities; I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa.C.S.§4904. J n W. Monsted Dated: 317-0? 625567.3 CERTIFICATE OF SERVICE I, Randall G. Gale, Esquire, Attorney for defendant Harrisburg Area YMCA, do hereby certify that a copy of the foregoing document was served upon the following by enclosing s true and correct copy in envelopes addressed as follows, postage prepaid, and depositing same in the United States Mail at arrisburg, Pennsylvania, on the elday of , 2009: Justin Stefanon, Esquire 1847 Center Street Camp Hill, PA 17011-1703 Melissa A. Montgomery, Esquire Law Offices William J. Ferren & Associates 1500 Market Street, Suite 2920 29th Floor - West Tower Philadelphia, PA 19102 Christopher M. Reeser, Esquire MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Ran&a,1l G. Gale, Esquire 17 ?xl?,d",i ff 931d3S 0006 v _ , #,AIA Document A111° -1997 Standard Form of Agreement Between Owner and Contractor where the basis for payment is the COST OF THE WORK PLUS A PEE with a negotiated Guaranteed Maximum Price AGREEMENT made as of the Fi*r4M{A day of Pe4 fit' in the year Two Thousand and Five (In words, indicate day, month and year) BETWEEN the Owmr: ADDITIONS AND DELETIONS: (Nam;., address and other information) The author of this document has added information needed for its Harrisburg Area YMCA completion. The author may also 123 Forster Street have revised the text of the Harrisburg, PA 17102-3409 original AIA standard form. An Telephone Number: (717) 232-2068 Additions and Deletions Report Fax Number: (717) 234-5859 that notes added information as well as revisions to the standard and the.Contractor: form text is available from the (Name, address and other information) author and should be reviewed. A vertical line in the left margin of INC. LOBAR ASSOCIATES this document indicates where , the sorbs has added necessary 4 Barlo Circle, P.O. Box 432 Information and where the author Dillsburg, PA 17019-0432 has added to or deleted from the Telephone Number: (717) 432-3429 original AIA text. Fax Number: (717) 432-7343 This document has important The Project is: legal consequences. (Name and location) Consultation with an attorney is encouraged with respect to West Shore YMCA - Facility Improvements its completion or modification. Phase Two - Bxailding This document is not intended for 410 Fallowfield Road use in competitive bidding. Camp Hill, PA AIA Document A201-1997, The Architect is: General Conditions of the (Name, address and other information) for Construction, is Contract adopted in this document by reference. Do not use with other Maule & Associates general conditions unless this 395 St. John's Church Road document is modified. Suite 300 Camp Hill, PA 17011 This document has been Telephone Number: (717) 730.2022 the approved and endorsed Fax Number: (717) 730-2023 Associated General Contractors of America. The Owner and Contractor agree as follows. AIA Document A111- -1997. Copyright ®1920,1925,1951,1958,1961,1963,1967,1974,1978,1987 and 1997 by The American Institute of Architects. All rights reserved. WARN NG: This AtO Document is protected by U.S. Copyright Law and International Treatise. Unauthorirsd reprodixtion or distribution of this AIO Document, or any portion of it, may result in severe civil and criminal psnsides, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:15:30 on 10/12/2005 under Order No.1000197055_t which expires on 918/2008, and is rat for resale. User Notea: (3879214196) ARTICLE 1 THE CONTRACT DOCUMENTS The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this Agreement and Modifications issued after execution of this Agreement; these form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract 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 Contract Documents, other than Modifications, appears in Article 15. If anything in the other Contract Documents is inconsistent with this Agreement, this Agreement shall govern. ARTICLE 2 THE WORK OF THIS CONTRACT The Contractor shall fully execute the Work described in the Contract Documents, except to the extent specifically indicated in the Contract Documents to be the responsibility of others. ARTICLE 3 RELATIONSHIP OF THE PARTIES The Contractor accepts the relationship of trust and confidence established by this Agreement and covenants with the Owner to cooperate with the Architect and exercise the Contractor's skill and judgment in furthering the interests of the Owner; to furnish efficient business administration and supervision; to furnish at all times an adequate supply of workers and materials; and to perform the Work in an expeditious and economical manner consistent with the Owner's interests. The Owner agrees to furnish and approve, in a timely manner, information required by the Contractor and to make payments to the Contractor in accordance with the requirements of the Contract Documents. ARTICLE 4 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION § 4.1 The date of commencement of the Work shall be the date of this Agreement 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 Owner. (Inset the date of commencement, if it differs from the date of this Agreement or, if applicable, state that the date will be fixed in a notice to proceed) Approximate mobilization date is the week of 17 October 2005, start date will depend upon receipt of building permit from Township Authority. If, prior to commencement of the Work, the Owner requires time to file mortgages, mechanic's liens and other security interests, the Owner's time requirement shall be as follows: § 4.2 The Contract Time shall be measured from the date of commencement. § 4.3 The Contractor shall achieve Substantial Completion of the entire Work not later than days from the date of commencement, or as follows: (Insert number of calendar days. Alternatively, a calendar date may be used when coordinated with the date of commencement. Unless stated elsewhere in the Contract Documents, insert any requirements for earlier Substantial Completion of certain portions of the Work.) Completion time frame is one (1) year after receipt of building permit and commencement of construction. Portion of Work Substantial Completion date , subject to adjustments of this Contract Time as provided in the Contract Documents. (Insert provisions, if any, for liquidated damages relating to failure to complete on time, or for bonus payments for early completion of the Work.) ARTICLE 5 BASIS FOR PAYMENT § 5.1 CONTRACT SUM § 5.1.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor's performance of the Contract. The Contract Sum is the Cost of the Work as defined in Article 7 plus the Contractor's Fee. AIA Docunwnt A111TM -1997. Copyright ®1920,1925,1951,1958,1961,1963,1967,1974,1978,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This A10 Document Is protected by U.S. Copyright Law and International Trestles. Urrsuliroeized reproduction or distribution of this AIAe Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the taw. This document was produced by AIA software at 12:15:30 on 10/12/2005 under Order No.I D001 97055_l which expires on !'8!2006, and is not for resale. User Notea: (3879214196) § 5.1.2 The Contractor's Fee is: (State a lump sum, percentage of Cost of the Work or other provision for determining the Contractor's Fee, and describe the method of adjustment of the Contractor's Fee for changes in the Work) One Hundred Seventy-Four Thousand, Six Hundred, Ninety-Six Dollars ($174,6%.00). § 5.2 GUARANTEED MAXIMUM PRICE § 5.2.1 The sum of the Cost of the Work and the Contractor's Fee is guaranteed by the Contractor not to exceed Three Million, Four Hundred Ninety-ThreeThousand, One Hundred Forty-Seven Dollars and Zero Cents ($ 3,493,147.00 ), subject to additions and deductions by Change Order as provided in the Contract Documents. Such maximum sum is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would r-ause the Guaranteed Maximum Price to be exceeded shall be paid by the Contractor without reimbursement by the Owner. (Insert specific provisions if the Contractor is to participate in any savings.) Owner will retain 100% of any savings to the GMP. § 5.2.2 The Guaranteed Maximum Price is based on the following alternates, if any, which are described in the Contract Documents and are hereby accepted by the Owner: (State the numbers or other identification of accepted alternates. If decisions on other alternates are to be made by the Owner subsequent to the execution of this Agreement, attach a schedule of such other alternates showing the amount for each ane the date when the amount expires.) § 6.23 Unit prices, if any, are as follows: Description Units Price ($ 0.00) § 52.4 Allowances, if any, are as follows (identify and state the amounts of any allowances, and state whether they include labor, materials, or both.) Allover nce Amount ($ 0.00) Included items § 5.2.5 Assumptions, if any, on which the Guaranteed Maximum Price is based are as follows: § 5.2.6 To the extent that the Drawings and Specifications are anticipated to require further development by the Architect, the Contractor has provided in the Guaranteed Maximum Price for such further development consistent with the Contract Documents and reasonably inferable therefrom. Such further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required, ::hall be incorporated by Change Order. ARTICLE 6 CHANGES IN THE WORK § 6.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work may be determined by any of the methods listed in Section 7.3.3 of AIA Document A201-1997. t 62 In calculating adjustments to subcontracts (except those awarded with the Owner's prior consent on the basis of cost plus a fee), the terms "cost" and "fee" as used in Section 7.3.3.3 of AIA. Document A201-1997 and the terms "costs" and "a reasonable allowance for overhead and profit" as used in Section 7.3.6 of AIA Document A201-1997 shall have the meanings assigned to them in AIA Document A201-1997 and shall not be modified by Articles 5, 7 and 8 of this Agreement. Adjustments to subcontracts awarded with the Owner's prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts. AIA Document A111- -1997. Copyright®1920, 1925, 1951, 1956, 1961,1963, 1967,1974, 1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIAs Document is protected by U.S. Copyright Law and International Trestles. Uneudwrbod reproduction or distribmion of this AIA° Document, or any portion of It, may result In severe civil and mimUsl penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:15:30 on 10/1212005 under Order No.1000197055_7 which expires on 902006, and is not for rerale. User Nol as; (3879214196) § 6.3 In calculating adjustments to the Guaranteed Maximum Price, the terms "cost" and "costs" as used in the above-referenced provisions of AIA Document A201-1997 shall mean the Cost of the Work as defined in Article 7 of this Agreement and the terms "fee" and "a reasonable allowance for overhead and profit" shall mean the Contractor's Fez as defined in Section 5.1.2 of this Agreement. § 6.4 If no specific provision is made in Section 5.1 for adjustment of the Contractor's Fee in the case of changes in the Work, or if the extept of such changes is such, in the aggregate, that application of the adjustment provisions of Section 5.1 will cause substantial inequity to the Owner or Contractor, the Contractor's Fee shall be equitably adjusted on the basis of the Fee established for the original Work, and the Guaranteed Maximum Price shall be adjusted accordingly. ARTICLE 7 COSTS " 0 BE REIMBURSED § 7.1 COST OF THE WORK The term Cost of the Work shall mean costs necessarily incurred by the Contractor in the proper performance of the Work. Such costs shall be at rates not higher than the standard paid at the place of the Project except with prior consent of the Owner. The Cost of the Work shall include only the items set forth in this Article 7. § 7.2 LABOR COSTS § 7.2.1 Wages of construction workers directly employed by the Contractor to perform the construction of the Work at the site or, with the Owner's approval, at off-site workshops. § 7.2.2 Wages or salaries of the Contractor's supervisory and administrative personnel when stationed at the site with the Owner's approval. (If it L intended that the wages or salaries of certain personnel stationed at the Contractor's principal or other offices shall be included in the Cost of the Work, identify in Article 14 the personnel to be included and whether for all or only part of their time, and the rates at which their time will be charged to the Work-) § 7.2.3 Wages and salaries of the Contractor's supervisory or administrative personnel engaged, at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work. § 7.2.4 Costs paid or incurred by the Contractor for taxes, insurance, contributions, assessments and benefits required by law or, collective bargaining agreements and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries included in the Cost of the Work under Sections 7.2.1 through 7.2.3. § 7.3 SUBCONTRACT COSTS § 7.3.1 Payments made by the Contractor to Subcontractors in accordance with the requirements of the subcontracts. § 7.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION y 7.4.1 Costs, including transportation and storage, of materials and equipment incorporated or to be incorporated in the completed construction. § 7.4.2 Costs of materials described in the preceding Section 7.4.1 in excess of those actually installed to allow for reasonable waste and spoilage. Unused excess materials, if any, shall become the Owner's property at the completion of the Work or, at the Owner's option, shall be sold by the Contractor. Any amounts realized from such sales shall be credited to the Owner as a deduction from the Cost of the Work. § 7.5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS § 7.5.1 Costs, including transportation and storage, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned by construction worker.;, that are provided by the Contractor at the site and fully consumed in the performance of the Work; and cost (less salvage value) of such items if not fully consumed, whether sold to others or retained by the Contractor. Cost for items previously used by the Contractor shall mean fair market value. § 7.5.2 Rental charges for temporary facilities, machinery, equipment, and hand tools not customarily owned by construction workers that are provided by the Contractor at the site, whether rented from the Contractor or others, AIA Document A111 ^' -1997. Copyright ®1920,1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIAa Document Is protected by U.S. Copyright Law and International Trestles. Unauthorized reproduction or 4 distribution of this AlA° Document, or any portion of It, may result In severe cMI and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:15:30 on 10/12/2005 under Order No.1000197056 1 which expires on 9/8/2006, and is not for resale. User Notes: (3879214196) and costs of transportation, installation, minor repairs and replacements, dismantling and removal thereof. Rates and quantities of equipm-°nt rented shall be subject to the Owner's prior approval. § 7.5.3 Costs of removal of debris from the site. § 7.5.4 Costs of document reproductions, facsimile transmissions and long-distance telephone calls, postage and parcel delivery charges, telephone service at the site and reasonable petty cash expenses of the site office. § 7.5.5 That portion of the reasonable expenses of the Contractor's personnel incurred while traveling in discharge of duties connected with the Work. y 7.5.6 Costs of materials and equipment suitably stored off the site at a mutually acceptable location, if approved in advance by the Owner. § 7.6 MISCELLANEOUS COSTS § 7.6.1 That pot lion of insurance and bond premiums that can be directly attributed to this Contract: § 7.6.2 Sales, use or similar taxes imposed by a governmental authority that are related to the Work. § 7.6.3 Fees and assessments for the building permit and for other permits, licenses and inspections for which the Contractor is required by the Contract Documents to pay. § 7.6.4 i'ees of laboratories for tests required by the Contract Documents, except those related to defective or nonconforming Work for which reimbursement is excluded by Section 13.5.3 of AIA Document A201-1997 or other provisions of the Contract Documents, and which do not fall within the scope of Section 7.7.3. § 7.6.5 Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents; the cost of defending suits or claims for infringement of patent rights arising from such requirement of the Contract Documents; and payments made in accordance with legal judgments against the Contractor resulting from such suits or claims and payments of settlements made with the Owner's consent. However, such costs of legal defenses, judgments and settlements shall not be included in the calculation of the Contractor's Fee or subject to the Guaranteed Maximum Price. If such royalties, fees and costs are excluded by the last sentence of Section 3.17.1 of AIA Document A201-1997 or other provisions of the Contract Documents, then they shall not be included in the Cost of the Work. § 7.6.6 Data processing costs related to the Work. § 7.6.7 Deposits lost for causes other than the Contractor's negligence or failure to fulfill a specific responsibility to the Owner as set forth in the Contract Documents. § 7.6.8 Legal, mediation and arbitration costs, including attorneys' fees, other than those arising from disputes between the Owner and Contractor, reasonably incurred by the Contractor in the performance of the Work and with the Owner's prior written approval; which approval shall not be unreasonably withheld. § 7.6.9 Expense;, incurred in accordance with the Contractor's standard personnel policy for relocation and temporary living allowances of personnel required for the Work, if approved by the Owner. § 7.7 OTHER COSTS AND EMERGENCIES § 7.7.1 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Owner. § 7.7.2 Costs due to --mergencies incurred in taking action to prevent threatened damage, injury or loss in case of an emerg° ncy affecting the safety of persons and property, as provided in Section 10.6 of AIA Document A201-1997. § 7.7.3 Costs of repairing or correcting damaged or nonconforming Work executed by the Contractor, Subcontractors or suppliers, provided ftt such damaged or nonconforming Work was not caused by negligence or failure to fulfill a AIA Document A111 TM -1997. Copyright ®1920,1925,1951,1958, 1981,1963,1967,1974,1978,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIAe Document Is protected by U.& Copyright Law and International Trestles. Unauthorized reproduction or distribution of this AIAe Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the moximwn extent possible under th ; law. This document was produced by AIA software at 12:15:30 on 10/1212005 under Order No.1000197055_1 which expires on 9/8/2006, and is not for resale. User Notes: (3879214196) specific responsibility of the Contractor and only to the extent that the cost of repair or correction is not recoverable by the Contractor from insurance, sureties, Subcontractors or suppliers. ARTICLE 8 COSTS NOT TO BE REIMBURSED § 8.1 The Cost of the Work shall not include: § 8.1.1 Salaries and other compensation of the Contractor's personnel stationed at the Contractor's principal office or offices other than the site office, except as specifically provided in Sections 7.2.2 and 7.2.3 or as may be provided in Article 14. § 8.1.2 Expenses of the Contractor's principal office and offices other than the site office. § 8.1.3 Overhead ane general expenses, except as may be expressly included in Article 7. § 8.1 A The Contractor's capital expenses, including interest on the Contractor's capital employed for the Work. 81.5 Rental costs of machinery and equipment, except as specifically provided in Section 7.5.2. § 8.1.6 Except as provided in Section 7.7.3 of this Agreement, costs due to the negligence or failure to fulfill a specific responsibility of the Contractor, Subcontractors and suppliers or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable. g 8.1.7 Any cost not specifically and expressly described in Article 7. § SAX Costs, other than costs included in Change Orders approved by the Owner, that would cause the Guaranteed Maximum Price to be exceeded. ARTICLE 9 DISCOUNT, REBATES AND REFUNDS § 9.1 Cash discounts obtained on payments made by the Contractor shall accrue to the Owner if (1) before making the payment, the Contractor included thew in an Application for Payment and received payment therefor from the Owner, or (2) the Owner has deposited funds with the Contractor with which to make payments; otherwise, cash discounts shall accrue to the Contractor. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Contractor shall make provisions so that they can be secured. 9.2 Amounts that accrue to the Owner in accordance with the provisions of Section 9.1 shall be credited to the Owner as a deduction from the Cost of the Work. ARTICLE 10 SUBCONTRACTS AND OTHER AGREEMENTS § 10.1 Those portions of the Work that the Contractor does not customarily perform with the Contractor's own personnel shall be performed under subcontracts or by other appropriate agreements with the Contractor. The Owner may designate specific persons or entities from whom the Contractor shall obtain bids. The Contractor shall obtain bids frorn Subcontractors and from suppliers of materials or equipment fabricated especially for the Work and shall deliver such bids to the Architect. The Owner shall then determine, with the advice of the Contractor and the Architect, which bids will be accepted. The Contractor shall not be required to contract with anyone to whom the Contractor has reasonable objection. § 10.2 If a specific bidder among those whose bids are delivered by the Contractor to the Architect (1) is recommended to the Owner by the Contractor; (2) is qualified to perform that portion of the Work; and (3) has submitted a bid that conforms to the requirements of the Contract Documents without reservations or exceptions, but the Owner requires that another bid be accepted, then the Contractor may require that a Change Order be issued to adjust the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the Owner by the Contractor and the amount of the subcontract or other agreement actually signed with the person or entity designated by the Owner. § 10.3 Subcontracts or other agreements shall conform to the applicable payment provisions of this Agreement, and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner. AIA Document A111 TM -1997. Copyright ®1920,1925, 1951,1958, 1961,1963, 1987,1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: TMs AIAe Document Is protected by U.S. Copyright Law and International Trestles. Uneuthortred reproduction or distribution of this AIA° Document, or any portion of It, may result In severe civil and criminal penalties, and wilt be prosecuted to the maximum extent possible under the few. This document was produced by AIA software at 12:15:30 on 10112/2005 under Order No.1000197W5 _1 which expires on 9/8/2006, and is not for resale. User Notes: (3979214196) ARTICLE 11 ACCOUNTING RECORDS The Contractor shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Contract, and the accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner's accountants shall be afforded access to, and shall be permitted to audit and copy, the Contractor's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Contract, and the Contractor shall preserve these for a period of three years after final payment, or for such longer period as may be required by law. ARTICLE 12 PAYMENTS § 12.1 PROGRESS PAYMENTS § 12.1.1 Based upon Applications for Payment submitted to the Architect by the Contractor and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents. § 12.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows: approved 21st approved § 12.1.3 Provided that an Application fo ayment is.ilaoi wl by the Architect no ater than the Thirtieth day of a month, the Owner shall make paymen o the Contractor not later than the day of the Following month. )yn If an Application fog Payment is by the Architect after the application date fixed above, payment shall be made b by the Owner not later than Ffik4r ( 34k) days after the Architectthe Application for Payment. twenty one 21 approves § 12.1.4 With each Application for Payment, the Contractor shall submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached, and any other evidence required by the Owner or Architect to demonstrate that cash disbursements already made by the Contractor on account of the Cost of the Work equal or exceed (1) progress payments already received by the Contractor; less (2) that portion of those payments attributable to the Contractor's Fee; plus (3) payrolls for the period covered by the present Application for Payment. § 12.1.5 Each Application for Payment shall be based on the most recent schedule of values submitted by the Contractor in accordance with the Contract Documents. The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Contractor's Fee shall be shown as a single separate item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Contractor's Applications for Payment. § 12.1.6 Applications for Payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage of completion shall be the lesser of (1) the percentage of that portion of the Work which has actually been completed; or (2) the percentage obtained by dividing (a) the expense that has actually been incurred by the Contractor on account of that portion of the Work for which the Contractor has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. § 12.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: .1 take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage of completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included as provided in Section 7.3.8 of AIA Document A201-1997; .2 add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work, or if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing; AIA Documsnt A111 TM -1997. Copyright ®1920,1925,1951, 1958, 1961, 1963, 1967, 1974,1978, 1987 and 1997 by The American Institute of Architects. Ail rights reserved. WARNING: This ASO Document is protected by U.S. Copyright Law and International Treatles. Unauthorhred reproduction or 7 distribution of this AIO Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the taw. This document was produced by AIA software at 12:15:34 on 10/1212005 under Order No.1000197055_1 which expires on 9/812006, and is not for resale. User Notes: (3879214196) .3 add the Contractor's Fee, less retainage of Ten Percent ( 10.00% ).The Contractor's Fee shall be computed upon the Cost of the Work described in the two preceding Clauses at the rate stated in Section 5.1.2 or, if the Contractor's Fee is stated as a fixed sum in that Subparagraph, shall be an amount that bears the same ratio to that fixed-sum fee as the Cost of the Work in the two preceding Clauses bears to a reasonable estimate of the probable Cost of the Work upon its completion; e10% Retainage reduced to 5% at 50% completion of project. .4 subtract the aggregate of previous payments made by the Owner; .5 subtract the shortfall, if any, indicated by the Contractor in the documentation required by Section 12.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner's accountants in such documentation; and .6 subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Section 9.5 of AIA Document A201-1997- § 12.1.8 Except with the Owner's prior approval, payments to Subcontractors shall be subject to retainage of not less than Ten Percent ( 10.00% ). The Owner and the Contractor shall agree upon a mutually acceptable procedure for review and approval of payments and retention for Subcontractors. *10% Retainage reduced to 5% at 50% completion of project. § 12.1.9 In taking action on the Contractor's Applications for Payment, the Architect shall be entitled to rely on the azcuracy and completeness of the information furnished by the Contractor and shall not be deemed to represent that the Architect has made a detailed examination, audit or arithmetic verification of the documentation submitted in accordance with Secdon 12.1 A or other supporting data; that the Architect has made exhaustive or continuous on- site inspections or that the Architect has made examinations to ascertain how or for what purposes the Contractor has used amounts previously paid on account of the Contract. Such examinations, audits and verifications, if required by the Owner, will be performed by the Owner's accountants acting in the sole interest of the Owner. § 12.2 FINAL PAYMENT § 12.21 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor when: .1 the Contractor has fully performed the Contract except for the Contractor's responsibility to correct Work as provided in Section 12.2.2 of AIA Document A201-1997, and to satisfy other requirements, if any, which extend beyond final payment; and .2 a final Certificate for Payment has been issued by the Architect. § 12.2.2 The Owner's final payment to the Contractor shall be made at Substantial Completion and issuance of the Architect's final Certificate for Payment, or as follows: § 12.2.3 The Owner' s accountants will review and report in writing on the Contractor's final accounting within 30 days Oter delivery of the final accounting to the Architect by the Contractor. Based upon such Cost of the Work as the Owner's accountants report to be substantiated by the Contractor's final accounting, and provided the other conditions of Section 12.2.1 have been met, the Architect will, within seven days after receipt of the written report of the Owner's accountants, either issue to the Owner a final Certificate for Payment with a copy to the Contractor, or notify the Contractor and Owner in writing of the Architect's reasons for withholding a certificate as provided in Section 9.5.1 of the AIA Document A201-1997. The time periods stated in this Section 12.2.3 supersede those stated in Section 9.4.1 of the AIA Document A201-1997. § 12.2.4 If the Owner's accountants report the Cost of the Work as substantiated by the Contractor's final accounting to be less than claimed by the Contractor, the Contractor shall be entitled to demand arbitration of the disputed amount without a further decision of the Architect. Such demand for arbitration shall be made by the Contractor within 30 days sifter the Contractor's receipt of a copy of the Architect's final Certificate for Payment; failure to demand arbitration within this 30-day period shall result in the substantiated amount reported by the Owner's AIA Document A111- -1997. Copyright ®1920,1925, 1951,1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American institute of Architects. All rights reserved. WARNING: This AIAs Document is protected by U.S. Copyright Law and International Treatise. tlnsutinorbxd reproduction or 8 distribution of this AIAe Document, or any portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the mexlmum extent possible under the law. This document was produced by AIA software at 12:15:30 on 10/12/2005 under Order No.1000197055_1 which expires on 91812006, and is not for resale. user Notes: (3879214196) accountants becoming binding on the Contractor. Pending a final resolution by arbitration, the Owner shall pay the Contractor the amount certified in the Architect's final Certificate for Payment. § 12.2.5 If, subsequent to final payment and at the Owner's request, the Contractor incurs costs described in Article 7 and not excluded by Article 8 to correct defective or nonconforming Work, the Owner shall reimburse the Contractor such costs and the Contractor's Fee applicable thereto on the same basis as if such costs had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price. If the Contractor has participated in savings as provided in Section 5.2, the amount of such savings shall be recalculated and appropriate credit given to the Owner in determining the net amount to be paid by the Owner to the Contractor. ARTICLE 13 TERMINATION OR SUSPENSION § 13.1 The Contract may be terminated by the Contractor, or by the Owner for convenience, as provided in Article 14 of AIA Document A201-1997. However, the amount to be paid to the Contractor under Section 14.1.3 of AIA Document A201-1997 shall not exceed the amount the Contractor would be entitled to receive under Section 13.2 below, except that the Contractor's Fee shall be calculated as if the Work had been fully completed by the Contmaor, including a reasonable estimate of the Cost of the Work for Work not actually completed. § 13.2 The Contract may be terminated by the Owner for cause as provided in Article 14 of AIA Document A201- 1997. The amount, if any, to be paid to the Contractor under Section 14.2.4 of AIA Document A201-1997 shall not cause the Guaranteed Maximum Price to be exceeded, nor shall it exceed an amount calculated as follows: § 13.2.1 Take the Cost of the Work incurred by the Contractor to the date of termination; § 13.2.2 Add the Contractor's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Section 5.1.2 or, if the Contractor's Fee is stated as a fixed sum in that Section, an amount that bears the same ratio to that fixed-sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion; and § 13.2.3 Subtract the aggregate of previous payments made by the Owner. § 13.3 The Owner shall also pay the Contractor fair compensation, either by purchase or rental at the election of the Owner, for any equipment owned by the Contractor that the Owner elects to retain and that is not otherwise included in the Cost of the Work under Section 13.2.1. To the extent that the Owner elects to take legal assignment of subcontracts and purchase orders (including rental agreements), the Contractor shall, as a condition of receiving the payments referr-d to in this Article 13, execute and deliver all such papers and take all such steps, including the legal assignment of such subcontracts and other contractual rights of the Contractor, as the Owner may require for the purpose of fully vesting in the Owner the rights and benefits of the Contractor under such subcontracts or purchase orders. § 13.4 The Work may be suspended by the Owner as provided in Article 14 of AIA Document A201-1997; in such case, the Guaranteed Maximum Price and Contract Time shall be increased as provided in Section 14.3.2 of AIA Document A201-1997 except that the term "profit" shall be understood to mean the Contractor's Fee as described in Sections 5.1.2 and S !ction 6.4 of this Agreement. ARTICLE 14 MISCELLANEOUS PROVISIONS § 14.1 Where reference is made in this Agreement to a provision AIA Document A201-1997 or another Contract Document, the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents. § 14.2 Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate stated below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. (insert rate of interest agreed upon, if any.) 1.50°'. Monthly MA Document A111 ^' -11t97. Copyright ®1920,1925,1951,1958,1961,1963,1967,1974,1978,1967 and 1997 by The American Institute of Architects. AN rights reserved. WARNING: This AtAs Document is protected by U.S. Copyright Law and International Trams. Unauthortzed reproduction or 9 distribution of this AIAs Document, or any portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:15:30 on 10H22oo5 under Order No.1000197055_1 which expires on 9N200E, and is not for resale. User Notes: (3879214196) (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the Owner's and Contractor's principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Legal advice should be obtained with respect to deletions or modifications, and also regarding requirements such as written disclosures or waivers.) § 14.3 The Owner's representative is: (Nam:, address and other information.) Richard A. Curl, President 123 Forster Street Harrisburg, PA 17102-3409 § 14.4 The Contractor's representative is: (Name, address and other information.) Peter Taleff, Jr. A Barlo Circle, P.O. Box 432 Dil3sburg, PA 17019.0432 § 14.5 Neither the Owner's nor the Contractor's representative shall be changed without ten days' written notice to the other party. § 14.6 Other provisions: ARTICLE 15 ENUMERATION OF CONTRACT DOCUMENTS § 15.1 The Contract Documents, except for Modifications issued after execution of this Agreement, are enumerated as follows: § 15.1.1 The Agreement is this executed 1997 edition of the Standard Form of Agreement Between Owner and Contractor, AIA Dor:ument Al 11-1997. § 15.1.2 The General Conditions are the 1997 edition of the General Conditions of the Contract for Construction, AIA Document A201-1997. § 15.1.3 The Supplementary and other Conditions of the Contract are those contained in the Project Manual dated , and are as follows: Document Title Pages § 15.1.4 The Specifi: aticns are those contained in the Project Manual dated as in Section 15.1.3, and are as follows: (Eithc- list the Specifications here or refer to an exhibit attached to this Agreement.) Title of Specifications exhibit: See Exhibit 3 - List Of Specifications & Drawings § 15.1.5 The Drawings are as follows, and are dated unless a different date is shown below: (Either list the Drawings here or refer to an exhibit attached to this Agreement.) Title of Drawings exhibit: See Exhibit 3 - List Of Specifications & Drawings §Adden The u7 titdonc i(faao, ?anftllgvy l-1997 for YMCA West Shore FAcility Improvements -Supplementary Conditions (to A201) Phase Two AIA D*eumwd A111 T" -1997. CopyrWM 01920,1925,1951,1958, 1961,1963,1967,1974,1978, 1987 and 1997 by The American Institute of Architects. All rlphts reserved. WARNING: This AIAe Document Is protected by U.S. CopyftM Law and International Trestles. Unauthorized reproduction or 10 distribution of this AIAe Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:15:30 on 10/12/2005 under Order No.1000197055_1 which expires on 9/812006, and is not for resale. User Notes: (3879214196) Number Date See Exhibit 3 - List Of Specifications & Drawings Pages Portions of Addenda relating to bidding requirements are not part of the Contract Documents unless the bidding requirements are also enumerated in this Article 15. § 15.1.7 Other Documents, if any, forming part of the Contract Documents are as follows: (List here any additional documents, such as a list of alternates that are intended to form part of the Contract Documents. AIA Document A201-1997 provides that bidding requirements such as advertisement or invitation to bid, instructions to Bidders, sample forms and the Contractor's bid are notpart of the Contract Documents unless enumerated in this Agreement. They should be listed here only if intended to be part of the Contract Documents.) Exhibit 1A - LOBAR Revised Proposal Dated 10/12/05 Exhibit 1B - Revised Bid Breakdown Dated 10/12115 Exhil:-it 1C -Revised Scope Of Work Dated 10/12/05 Exhibit 2 - Base Labor & Equipment Rates Exhibit 3 - List Of Specifications & Drawings ARTICLE 16 INSURANCE AND BONDS (List required limits of liabilityfor insurance and bonds. AIA Document A201-1997 gives other specific requirements for insurance and bonds.) Type of insurance Limit of liability ($ 0.00) This Agreement is entered into as of the day and year first written above and is executed in at least three original copies, of which one is to be delivered to the Contractor, one to the Architect for use in the administration of the act, and to a Owner. OWVN1rR (Signature) CONTRACTOR (Sig ure) Richard A url, President Date: 14 ?,AO S (Printed name and title)' Lee E. Eichel ,berger, President Date: ?0l 01 me ttle) (Printed na AIA Doca ment All l- - l N7. Copyright 01920,1925,1951,1958,1981, i963,1967,1974,1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This A10 Document is protected by U.S. Copyright Law and International Tradles. Unaathortmd reproduction or 11 distribution of this AIAe Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extant possible under the law. This document was produced by AIA software at 12:15:30 on 1011212005 under.Order No.1000197055_1 which expires on 9/81200ti, and is not for resale. User Notes: (3879214196) Additions and Deletions Report for AIA Document A 11I'm -1997 This Ad*Jons and Deletions Report, as defined on page 1 of the associated document, reproduces below aU text the author has added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the original AIA text. Added text is shown underlined. Deleted text Is indicated with a horizordW line through the original AIA text. Note: This Additions and Deletions Report Is provided for information purposes only and is not incorporated into or constitute any. part of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 12:15:30 on 10/12/2005. PAGEI AGREEMENT made as of the day of in the year Two Thousand and Five Harrisburg Area YMCA 123 Forster Street Harrisburg. PA 17102-3409 Telephone Number: (717) 232-2068 Fax Number: (7171231-5859 LOB" ASSOCIATES. INC. 4 Barlo Circle. P.O. B&x 432 1Nllsbura, PA 17019-0432 Telephone Number; (717) 432-3429 Fax Number: (717) 437.-7343 iVest Shore YMCA - Facility Improvements Phase Two - Buildine 410 Fallowfield Road Damn Hill. PA Maine & Assodates 395 St. John's Church Road Suite 300 Camp HiB. PA 17011 Telephone Number: (717) 730-2022 Fax Number: (717) 736-202 Additions and Detationa Report for AIA Document A111 TH-1997. Copyright ®1920,1925,1951, 1958, 1961,1963,1967,1974,1978,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Low and international Trestles. Unauthorized reproduction or distribution of this AIA• Document, or any portion of It, may result in sewn civil and crimind penalties, and Will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:15:30 on 10/1 2120 05 under Order No.1000197055_1 which expires on 9/812006, and is not for resale. User Notes: (3879214196) PAGE 2 Awrombute meblU tion date is the week of 17 October 2005, start date will depend upon recejpt of building permit from Township Authority. Comol gion time frame is one (1) year after receipt of buiidbu permit and commencement of construction. PAGE 3 One Hundred Seventy-Four Thousand, Six Hundred. Ninety-Six Dollars 3174496.00). § 5.2.1 The sum of the Cost of the Work and the Contractor's Fee is guaranteed by the Contractor not to exceed Three Million Four Hundred Ninety-ThreeThousand. One Hundred Forty-Seven Dollars and Zero Cents ($ 3.493.147.00 ), subject to additions and deductions by Change Order as provided in the Contract Documents. Such maximum sum is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Contractor without reimbursement by the Owne: Qwner will retain 100% of any savings to the GMP. PAGE 7 § 121.3 Provided that an Application for Payment is received by the Architect not later than the Thirtieth day of a month, the Owner shall make payment to the Contractor not later than the T &th day of the Following month. If an Application for Payment is received by the Architect after the application date fixed above, payment shall be made by the Owner not later than Thirty (30 ) days after the Architect receives the Application for Payment. PAGE 8 .3 add the Contractor's Fee, less retainage of Ten Percent ( 10.00% ).The Contractor's Fee shall be computed upon the Cost of the Work described in the two preceding Clauses at the rate stated in Section 5.1.2 or, if the Contractor's Fee is stated as a fixed sum in that Subparagraph, shall be an amount that bears the same ratio to that fixed-sum fee as the Cost of the Work in the two preceding Clauses bears to a reasonable estimate of the probable Cost of the Work upon its completion; *10% Retainage reduced to 5% at 50% completion of project. § 12.1.8 Except with the Owner's prior approval, payments to Subcontractors shall besubject to retainage of not less than Ten Percent ( 10.x% ). The Owner and the Contractor shall agree upon a mutually acceptable procedure for review and approval of payments and retention for Subcontractors. *10% Retainage reduced to 5% at 50% completion of project. § 12.2.2 The Owner's final payment to the Contractor shall be made no law "H 30 days the at Substantial Camoletion and issl.ance of the Architect's final Certificate for Payment, or as follows: PAGE 9 1.50% Monthly PAGE 10 Richard A. Curl, President 123 Forster Street Harri.;bura. PA 17102-3409 Additions and Deletions Report for AIA Document A1117' -1997. Copyright ®1920,1925,1951,1958,1961,1963,1967,1974.1978, 1987 and 1997 by The American Institute of Arddeats. AN rights rsaswed. WARNING: This AIAe Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution at this ALO Document, or any portion of it, may resuN In severe civil and criminal penalties, and will be prosecuted to the maximum exlent possible under the law. This document was produced by AIA software at 12:15:30 on 10/12(2005 under Order No.1000197055_t which expires on 91612006, and is not for resale. User Notes: (3879214196) Peter Taleff. Jr. 4 Barlo Circle. P.O. Boa 432 i;ftburg. PA 17019-0432 Seam T#W P"" Title of Specifications exhibit: See Exhibit 3 - List Of Soedficadons & Drawings Number Date P#e of Drawings exhibit: See Exhibit 3 - List Of 5oeMcations & DrawWn PAGE 11 See Exhibit 3 - Lisa Of Soeddaid- am & Drawings Exhibit 1A - LOBAR Revised Proposal Dated 10/12/05 Exhibit 1B - Revised Bid Breakdown Dated 10/12/05 Exhibit 1C - Revised Scope Of Work Dated 10/12105 Exhibit 2 - Base Labor & Eaninment Rates jxWbit 3 - List Of.ruecifications & Drawings Richard A. Curl. President Lee E. Eichelbereer. President Date: Date: AddM{orm and Daktbns Report for AIA Document Ati1*a -1997. CopydgM 01M, 1925,1951,1958,1961, 1963,1967,1974,1978,1987 and 1997 by The Amerxsm Institute of Architects. All rights M"rved. WARNING: This A10 Document Is protected by U.S. Copyright Low and International 3 Treaties. Unauthorized reproduction or distributlon of this AIO Document, or any portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:15:34 on 10/1212005 under Order No. 1000197055_1 which expires on 902006, and is not for resale. user Notes: (3879214196) Ce ' rcadoon of Document's Authenticity AIA® Document D401 TM - 2003 I, Lee E. Eichelberger, President, hereby certify, to the best of my knowledge, information and belief, that I created the attached final document simultaneously with its associated Additions and Deletions Report and this certification at 12:15:30 on 10/12/2005 under Order No. 10001970551 from AIA Contract Documents software and that in preparing the attached final document I made no changes to the original text of AIA® Document Al 11Tm -1997 - Standard Form of Agreement Between Owner and Contractor where the basis for payment is the COST OF THE WORK PLUS A FEE with a negotiated Guaranteed Maximum Price, as published by the AIA in its software, other than those additions and deletions shown in the associated Additions and Deletions Report. (Signed) (Title) (Dated) AIA Docurnent D401- - 2003. Copyright O 1992 end 2005 by The American inedlute of Arcldteds. All rights reserved. W ARNiNR: This AIA° Document is protecled-by U.S. Copyright Low and international Trestles. Unsuthortzed reproduction or distribution of this AIO Docu»ent, or any portion of It, mey result In severe civil and crhninal penalties, and will be prosecuted to the maxintum extent possible under the law. This documert was produced by AIA softwere at 12:1530 on 10/12!2005 under Order No.1000197055_i which expires on 9/812006, and is not for resale. Uaw Notes: (3879214196) rr A ASSOCIATES 4 BARLO CIRCLE P.O. BOX 432 DILLSBURG, PA 17019-0432 October 12, 2005 Re: GMP Proposal for: West Shore YMCA - Facility Improvements Phase Two - Building 410 Fallowfield Road Camp Hill, PA 17011 Dear Mr. Curl: Lobar Associates is pleased to submit the following "revised and jointly agreed upon" Guaranteed Maximum Price (GMP) of Three Million Four Hundred Ninety Three Thousand One Hundred Forty Seven ($3,493,147.00) Dollars to complete all construction of the above referenced project. The delivery method of the project will be Cost plus Fee, and will not exceed the GMP amount previously stated. The revised GMP reflects the omission of the 10% contingency, reimbursement costs for Electricity and Water usage, and a portion of the second layer of supervision. Lobar Associates and their subcontractors will have access to the owner's electrical power and water at no charge. All savings below the GMP will be 100% Owner retained. Our Budget is based on the Proposal Set of Plans and Specifications as prepared by Maule & Associates, and Addendums One thru Seven. Please see Clarifications and Exclusions at the end of the enclosed Scope of Work. We confirm that the project will be completed within one (1) year from receipt of the building permit. The permit application has been submitted to the Township and is under their review for approvals. We have included a "Revised" itemized Cost Breakdown, per CSI 16 division format for the Project, for attachment to the contract. An AIA Schedule of Values will be submitted for acceptance prior to the first application for payment. We are extremely grateful for the opportunity to perform the construction services for the Facility Improvements and look forward to the successful and timely completion of the project.. Very truly yours, Lobar Associates,,IInc. Peter Taleff, Jr. Vice President, Client Business Services BEST PLACES vpftM .4& &JIMA to work in I •?'? N? TEL: (717) 432-3429 FAX: (717) 432-7343 Mr. Richard A. Curl President Harrisburg Area YMCA 123 Forster Street Harrisburg, PA 17102-3409 BID PROPOSAL FORN WEST SHORE YMCA f CAMP HILL, PA CSI, Itemized Constructs [-_ Division 1 - G66eral F Division 3 - Division 5 - Division 6 - Wood & f sion 7 - Thermal & Moisture Prc Division 12 - Fu Div 13 - Water Feature F Division '1 D C 11- "REVISED" II, BLOB ;et Line item $ ants ` 407,987 N.I.C. - 371,815 SUBTOTAL COST 140,355 244,139 38,413 229,626 2,633 107,300 244,000 55,810 371,465 219,401 ,318,451 1 N.I.C. - BY OWNER E-)ti,k t-6 17 l 13 .. , 1- .-.--_ . _..??. 40414V4,7.47 Lobar Associates Pagel 10/1212005 WEST SHORE YMCA - FACILITY IMPROVEMENTS Phase II - Building Construction Scope of Work "REVISED" 1. Liability Insurance 2. Cost Engineering & Constructability reviews 3. Payment & Performance Bonds (See line item cost breakout) 4. All required Local/County/State Permits 5. Mobilization costs 6. Job Signage 7. Layout 8. Project Management 9. "Full Time' On-Site Supervision and coordination 10. "In-House" Scheduling and coordination 11. On-Site Office 1 Storage Trailer 12. Temporary Safety Fencing and Temporary Entrances 13. O.S.H.A. Safety Protection 14. On-Site Safety Meetings 15. First Aid Equipment 16. Temporary Weather Protection 17. Temporary Electric costs (Source from Owners existing) !Cost Deleted - Ejgj" by Owner at No Cost. 18. Temporary Water costs (Source from Owners existing) Deleted - Fur id by (3wner at No Cost. 19. Temporary Toilets 20. On-site communication equipment (Cell phones, etc.) 21. Progressive & final cleanup 22. Dumpsters 23. As built drawings and close-out documents Div. 02 Earthwork: 1. Project stakeout from established survey hubs 2. Grade checks and confirmations 3. Erosion & Sedimentation Control 4. Selective site & building demolition and removal per plans 5. Site cut & fill as required 6. Re-spread & finish grade topsoil at disturbed areas 7. Patch existing asphalt paving where disturbed by new construction 8. Extend sanitary sewer and domestic water and rain leaders as required 9. Grass seeding and mulching at disturbed areas 10. Building footing excavation & compacted backfill, and stone base under basement pad and ramp 11. Water Meter Pit NOTE: *Rock excavation and/or Removal of Contaminated Soils, if encountered, are included. Hazardous materials abatement is NOT included. Div. 03 Concrete: 1. Reinforced concrete building footings and foundation walls, per plans. INCL Underpinning @ E. ExpanW,500.00) 2. Building Slabs-on-Grade, including VB, WWM, construction & control joints, and cure & seal. 3. Slabs-on-Deck, including, WWM, expansion and control joints, and cure & seal. 4. Precast concrete plank where shown 5. Elevator slabs & pit walls. 6. Exterior concrete stoops, slabs, walks, ramps and landings Lobar Associates, Inc. Page 1 WEST SHORE YMCA - FACILITY IMPROVEMENTS Phase H - Building Construction Div. 04 Masonry 1. Ground face CMU w/ colored mortar, as selected by Owner. 2. Sitting wall and cap 3. CMU back-up, elevator shaft walls, and stair towers as shown 4. Masonry reinforcement per standard practices. 5. Grout filled bond beams w/ reinforcing steel where required. 6. Masonry lintels at elevator, stair tower, and window openings, as required 7. Patching of disturbed wall areas, as required Div. 05 Metals: 1. Structural steel framing, to include columns and beams, per plans 2. Steel bar joists and metal floor and roof decking w/ all required accessories, per plans. 3. Steel lintels at window openings for brick facing, where required. 4. Pan stair systems w/ hand railings and wall handrails. 5. Railings at stairs, ramps, and pool, as shown 6. Elevator sill angle, elevator pit ladder, and hoist beam Div. 06 Wood and Masks: 1. Fire rated roof blocking as required, and wall blocking at interior metal stud partitions for mounting of toilet partitions, accessories, and cabinets 2. Base & wall cabinets and counter top Cafd/Vending 104; Counters, millwork and tops, Sales A105; Wall cabinets and rods Child Watch A-Al 12, B-Al 11, and Pre-school/Kinderg A109; Base & wall cabinets and counter top Changing Station Child Watch A A112; Base & wall cabinets and counter top Senior B-A116; Counter and supports Computer Center C135; Reception A106 Millwork, cabinetry and tops 3. All related millwork and trims for the above mentioned cabinetry Div. 07 Moisture Protection and Insulation: 1. Below grade waterproofing at foundation walls and elevator pit walls as shown on plans 2. Membrane roofing, gutters, downspouts, flashings and sheetmetal copings, and all related roof accessories per plan/spec 3. Sanitary caulking at countertops and joint sealants at wall expansion and control joints, and EIFS joints and perimeters. 4. Vapor and air barriers, thermal and building insulation per plans and specifications. 5. Exterior Insulation Finish System (EIFS) 6. Standing Seam roof systems per plan/spec Div. 08 Doors. Windows and Glass: 1. Hollow metal frames, wood & metal doors, and all finish hardware per plans/spec 2. Floor access door and roof hatch 3. Aluminum Entrances, doors, and window frames per plan/spec 4. All required glass and glazing per plan/spec 5. All finish hardware per plan/spec Div. 09 Finishes: 1. Gypsum board systems 2. Suspended tile ceilings 3. Ceramic tile floors and base 4. Wood and Rubber athletic flooring and base 5. Carpet, resilient flooring and base Lobar Associates, Inc. Page 2 WEST SHORE YMCA - FACILITY IMPROVEMENTS Phase 11- Building Construction 6. Painting per finish schedule Div, 10 Specialties' 1. Fire extinguishers per plan/spec 2. Flagpole per plan/spec 3. Signage and Graphics per plan/spec 4. Pedestrian Control Devices per plan/spec 5. Operable Partitions per plan/spec 6. Architectural Sunscreens per plan/spec 1. Toilet Accessories per plan/spec Div, 11 Eauinment• 1. Division not used. All equipment by owner. Div. 12 Furnishings: 1. Entrance Mats per plan/spec. Div. 13 Special Construction: 2. All required materials, labor, and equipment for new Water Slide and deep pool modifications per plan/spec 3. All required materials, labor, and equipment for new Water Feature Pool per plan/spec Div. 14 Conveyor Systems: 1. One (1) 4500# holeless hydraulic elevator w/ front and rear doors 2. Two (4) stop (2-front/2-rear), 125 fp.m. 3. All controls, operational system, and finishes per plan/spec Div. 15 Mechanical: 1. Fine Protection System complete, per NFPA 13, wet system, and per all applicable State and Local codes, per plan/spec 2. Plumbing Systems complete, per plan/spec, and per all applicable State and Local codes 3. HVAC Systems complete, per plans, and per all State and Local codes Div. 16 Electrical: 1. Electrical systems complete, per plan/spec and all applicable codes Clarifications and Exclusions: 1. Assume Climbing Walls are self supporting. No structural steel and wood supports are included. 2. No Hazardous materials abatement is included, if encountered. 3. Only one (1) door is allowable, per code in the elevator equipment room. We have included alterations to the electric room and adjoining closet area to accommodate the electrical closet. Lobar Associates, Inc. Page 3 ASSOCIATES 4 BARLO CIRCLE P.O. BOX 432 DILLSBURG, PA 17019-0432 EXHIBIT "2" BASE LABOR & EQUIPMENT RATES 9127105 Construction .?Mechanic $34.941Hour Foreman + $1.00 Truck Expense $42.581Hour Superintendent/Gen. Superintendent + $1.001Hr. Truck Expense $48.501Hour Project Manager $48 50IHour Facilities Engineer $56 22IHour Draftsman $40.901Hour Project Administrator $40.90/Hour Secretary $33.88IHour Computer Consultant $52.58IHour Project Executive $71.001Hour *All General Contractor Costs Le. Labor, Materials, Equipment, Subcontracts, Etc Plus 10% Ove,Mhead, 5% Profit, And 1 % Bond Cost. **Condensed Time Frames, Labor Intensive Activities, Work Occurring During Peak Construction Months, And Change OrderslService Work May Require Additional Labor Premium Adds. TEL: (717) 432-3429 BEST PLACES ? MU1L-' FAX: (717) 432-7343 to work in rVW ?., ',: MssWBuMwAm& L.-A LOBAR ASSOCIATES EQUPMENT TIME SHEET - 2004-2005 J08JCODE F -?- 01600 . EOUIPT. PACKAGE it __. WIE SUPEPANTENDENTIFOREMANIETC. vr. e ouncF EQUIPT. TOTAL ASSOC4 gBJTAI EQUnAENT TYPE NO. UNITS CODE RATE PER DAY M T W TH F S 5 TOTAL CHARGE Air rwlJack Hammer $140.00 Alummun Brake WACC 150.00 _ Aluminum WaMc Plank 90' $15.00 _ -- Doily 1WO-D' -- ArtlksAafon Boom l1R 45' (2) $250.00 ,,hoe 580 Case (4) E&- 3285.00 . ?Bxnft ka pWvi material egni _ $25,00 Barricades W"ll 1.00 F Bender-Cater for Reba) $MOD _ _ juabip Rod jowl (3) $6.00 Chain Saw (Go) 555.00 - _ _ chop Saw Mehl Swd) $25.00 Coup-4-Long (caM 310.00 , s Cowa* Blm*o Irrstaahnp {? _ 310.00 t _ _ Concrete 8x11 FW $10.OD _ - - Comete PowerTrowel 36', Or $80.00 Goomi to Stralpht Edge (12'-',"" 18' 20'} each _ 315.00 Comate VP,rata f40OD - _ _ Demo Saw (Eie) wlslade $100.OD D6oac Dotty {toter Assoc.} $20.00 Drywall Cart 31000 _ kage (l arge) E- - $?`fl0 . . _ Power 6 Hand Tools E-Package _ X00 _ E-P (Smarr) Hand ToolsOdy _ $25.00 EUfs Jack C &1vVr, (set of 4) 10.00 - EVE Cath GAid - $20.00 k W. or 42' [$25.DO - 2x2 Flat Cart $10.00 30x84 Rat Cart _ $20.00 Fork Lift t.'dlesco } $370.00 ~ Fork Lift Man Basket $10.00 Fork Lift Concrete Hopper - $20.DD Fork Lift Stone Hopper _ $20.00 - - Fork Lift Jib Boom ' - - - $20.00 Folk Lift Spreader Bar 320.00 Fresno Trowel wManc to 310.00 - _ Box $5 nn _..- Gas Go 212 or 5 Gallon 3200 _ Genermtors'-6W-8D00 watts $58 OO _ 1t Brlnder4'-7' - - Hait1 Cart $10.00 - - H?4sI>y Caps (tor Rebar; per i' $5.0D , Heater (smart Ele) $5.00 Heater (150,000 BTU) LP Fuel Extra $X(N) Healer (400,000 BTU} LP Fuel Extra _ w 375.00 - Jack Hammer (Ele) wffi t $65.00 Jack 10 Ton 55.00 i -- ';_:ay. Wall {L WAssoc) _ $10.00 . _ Jersey V161 Ctatnp (Kw=) $50.00 s ,. Joiner (fox would) y $15.00 Ladder S1i.,.5 - $10.00 _ _ Ladders step w-10'-12' 320 tJ0 L hdd FanenslWt 32'-W - moo _ _ _ Laser Ce&nj - - - $50.00 f LaserTransitwAAgs _ 550.00 REMARKS: NOTES: t ftW TOTAL CHARGED TO THE PROJECT FOR THIS WEEK 1. All equipment includes W finless noted otherwise. (exceptions L.P. Heaters) 2. Saws with damond blades ire based upon normal sawing- Excessive blade use will be extra. 3. Project A be charged for each day @ Project Ukdurfing non-use days, please retum equipment ASAP so other projects can benefit from use. 4. Equipment damaged on projectlabused will be charged to project 5, Any equipment sent out to projects tlasst be at clean operating con ftn if not notify Equipment Department w10in 3 hours. 8. Any equipment returned dirty and cwt operating properly wN be charged to each project unless you notify Equipment Department in advance. 7- AD rental equipwOepars to equlpmenbloob must go 3trough Equipment Department. 8. Fuel sucrarge added poatd rig market increase 9. All EquoTod rates are based on a normal 8 hr workday. Page 1 EGtNPT, SO URCE EQUPE TDTx- WE PER MY M T W TH F S S UNTfS CODE AaaeC .. ECOPMENT TYPE NO. 1135'? "eer saw ? _ ' ?' p?eil Crirr tX11 RNrreef Tpt?das? ?? Ak f+tedwre? (wdb t]tera ?? _ PakM Juk 00 Panef lift Plate or 0 s? 0 P& C ft Or Pullet P04AN d Sew 0 S1000 - - wMsY Sun; Hose PMW* Air 00 _. 5100 . Pnewn Wisher - $10.00 90 S` i Reed ftm wT r}-e= i2 00 Root is* PA"HNWWM- go >iam 3dW tittmess 00 $1. SftTnft Cone 00 $15. ? SWOA Cbcular7IM, Worm Drive Saw $10 00 . w 0 --- $s o * soellokitp AAMMMMM 0o SodlsB salter _ M ' it 9rJRar Lift f3otaria 2Q $15.00 ? Yak (tun MOM N W*IS 5263.00 8114 Loader /68••773 4 585.00 _? stdd LAaderBacidrotAtt. (7091 00 . _•.-? 5100 . Bhid Lfldeit street (Plus wear) 00 $15 . SM Looft Pallet Fake Wkx At Etc $60.00 Snow Pbw Truck 00 5 51 . ? ? _ 1 S100d 0 A wn Stall t rlQ (fang Box Kit (lobar 00 suction for 3wo AMC.) $10. $95A0 - -- Table Saw TV - $86.00 Torch set it 8otea Oxy-W, $15.00 .- . -- Yra?et Ot1ce Storege Erxbs,d Fled l+? ? M Tools REMARKS: NOTES: TOTAL CHARGED TO THE PROJECT FOR THIS WEEK 1. All equipment kdxles fuel urttess noted otherwise. (exceptions LP. Heaters) 2. taws YA diamond blades are based upon normal sawkg. Excessive blade use wiq be extra. rduding non-use days, 3. Project will be charged fa each day Project k ' 0 aft "Mum equpment ASAP so other projects can benefit tram use. 4. Eq*nent damaged on pr*d/abusW wII be charged to project 3 hourscan opwadrrg conddtdon H 5. Any equipment serif out b nst be in not w*ly Eopipment D"Nbv ent within will be charged to S. Any equipment tadunad &V and not operating prgxOy . each project ur0ass you notify Equipment Dep$rdtrerrt in advance' 7. All wit equprnerrtt VW 10 aqua muse 90 through EquOMM Departmen 8. Fuel sucharge &d M pending market inwMe p 9. All EquipfTooi rates are based on a normal S hr. workday. tRft M EXHIBIT 3 SPECIFICATIONS & DRAWING LIST FOR WEST SHORE YMCA SPECIFICATIONS Specifications/ Draw ng No.1 Title Date Prepared By Latest Addendum Revision Specifications West Shore YMCA Facility 7125105 Maule & Associates - Manual Improvements - Phase Two - Building Construction PLANS Specifications/ Drawing NoJ Title Date Prepared By Latest Addendum Revision - Title Page - Note: Structural - _ Drawings Mislabeled 3 of 5 Grading/Utility Plan 51120104 Maule & Associates, #5 Architects 517105 D-1 First Floor Plan - 10120104 Maule & Associates, #3 Demolition Architects 6117105 D-2 Second Floor Plan 10120104 Maule & Associates, #4 Demolition Architects 6117105 D-3 Building Elevations 1119105 Maule & Associates, #2 Demolition Architects 6117105 A-1 First Floor Plan 10120104 Maule & Associates, #6 _ Architects 6117105 A-2 Second Floor Plan 10120104 Maule &Associates, #4 Architects 6117105 A-3 Filter Rooms Plan 10120104 Maule & Associates, #4 Architects 2122105 A-4 Roof Plan 10120104 Maule & Associates, #3 Architects 6117105 A-5 First Floor Plan - North 10120104 Maule & Associates ; #7 Enlargement Architects 6117105 PLANS Specifications/ Drawing No.l rile Date Prepared By Latest Addendum Revision A-6 First Floor Plan - South 10120104 Maule & Associates, #5 Enlargement Architects 6117105 A-7 Second Floor Plan - North 10120104 Maule & Associates, #5 Eniar ement Architects 6117105 A-8 Filter Rooms Plan - South 10120104 Maule & Associates, #4 Enlargements Architects 6117105 A-9 Reflected Ceiling Plan - 10120104 Maule & Associates, #6 First Floor - North Architects 6117105 A • 10 Reflected Ceiling Plan - 10120104 Maule & Associates, #5 First Floor - South Architects 6117105 A-11 Reflected Ceiling Plan - 10120104 Maule & Associates, #5 Second Floor -North Architects 6117105 A-12 Building Elevations Key 1119105 Maule & Associates, #3 Architects 6117105 A-13 North & West Elevations 1119105 Maule & Associates, #1 Architects 6117105 A-14 South & East Elevations 1119105 Maule & Associates, #1 Architects 6117105 A-15 Wall Sections 4120105 Maule &Associates, #1 Architects 6117105 A-16 Wall Sections 4120105 Maule & Associates, #1 Architects 6117105 A-17 Wall Sections 4120105 Maule &Associates, #1 Architects 6117105 A-18 Wall Sections 4120105 Maule & Associates, #1 Architects 6117105 A-19 Stair & Elevator Sections 4120105 Maule & Associates, #1 - Architects 6117105 A-20 Room Finish Schedule 10120104 Maule & Associates, #6 Architects 6117105 A-21 Door&Window 4120105 Maule & Associates, #1 Schedules Architects 6117105 A-22 Door & Window Details 4120105 Maule & Associates, #1 Architects 6117105 A-23 Details 1119105 Maule & Associates, #1 Architects 6117105 A-24 Details 4120105. Maule & Associates, #2 Architects 815105 ID-1 Flooring Pattern Plan No Date Diversified Design - PLANS Specifications/ Drawing No./ Title Date Prepared By Latest Addendum Revision 5-1 Foundation Plan - Front 7122105 Maule & Associates, - Area Architects/Francis Stearns, PE S-2 Foundation Plan - Rear 7122105 Maule & Associates, - Area Architects/Francis Stearns, PE S-3 Second Floor Plan - Front 7122105 Maule & Associates, - Area Architects, Francis Stearns, PE 5-4 Roof Framing Plan - Front 7122105 Maule & Associates, - Area Architects/Francis Stearns, PE S-5 Roof Framing Plan - Rear 7122105 Maule & Associates, - Area Architects/Francis Stearns, PE 5-6 General Notes 7122105 Maule & Associates, - Architects/Francis Steams, PE MP-1 Mechanical Roof Plan 5131105 David V. Klinger, PE, 115105 Consulting En g. M-1 First Floor North HVAC 5131105 David V. Klinger, PE, 115105 Plan Consulting En g. ^.4-2 Second Floor North HVAC 5131105 David V. Klinger, PE, 115105 Plan Consulting En g. _ M-3 Second Floor South HVAC 5131105 David V. Klinger, PE, 115105 Plan Consulting En g. P-1 First Floor North 5131105 David V. Klinger, PE, 115105 Plumbing Plan Consulting En g. P-2 First Floor South 5131105 David V. Klinger, PE, 115105 Plumbing Plan Consulting En g. P-3 Second Floor North 5131105 David V. Klinger, PE, 115105 Plumbing Plan Consulting En g. _ E-1 Lighting Plan - First Floor 10120104 Kichman Engineering - North Associates, Sealed 611105 E-2 Power Plan - First Floor 10120104 Kichman Engineering - North Associates, Sealed 611105 _ E-3 Special Systems Plan - 10120104 Kichman Engineering - First Floor North Associates, Sealed 617105 PLANS Specifcationsl Drawing No.l Title Date Prepared By Latest Adaendum Revision E-4 Lighting Plan - First Floor 10120104 Kichman Engineering - South Associates, Sealed 611105 E-5 Power Plan - First Floor 10120104 Kichman Engineering - South Associates, Sealed 611105 E-6 Special Systems Plan - 10120104 Kichman Engineering - First Floor South Associates, Sealed 611105 E-7 Lighting Plan -Second 10120104 Kichman Engineering - Floor North Associates, Sealed 611105 E-8 Power Plan - Second 10120104 Kichman Engineering - Floor North Associates, Sealed 611105 E-9 Special Systems Plan - 10120104 Kichman Engineering - Second Floor North Associates, Sealed 611105 E-10 Power & Special Systems 10120104 Kichman Engineering - Plan - Second Floor Associates, Sealed South 611105 E-17 Electrical Plan - New 10120104 Kichman Engineering - Water Feature Filter Associates, Sealed Room; Power & Special 611105 Systems Plan - Filter Rooms E-12 Notes & Details 10120104 Kichman Engineering - Associates, Sealed _ 611105 E-13 Schedules 10/20/04 Kichman Engineering - Associates, Sealed 611105 FP-1 First Floor Fire Protection 5131105 David V. Klinger, PE, 115105 Plan Consulting Engineer FP-2 Second Floor Fire 5131105 David V. Klinger, PE, 115105 Protection Plan Consultin Engineer AC-1 Alternate "A"- 6117105 Wade Associates, Inc. - Renovations To Existing Swimming Pool & Deep Tank& New Water Aquatic Facilities Slide Plan & Details Consultants PLANS Specifi ationsl Drawing No.l Title Date Prepared By Latest Addendum Revision AC'-2 Alternate "B"- New Water 6117105 Wade Associates, Inc - Feature Pool Plan, Sections, Swimming Pool & & Details Aquatic Facilities Consultants AC-3 Alternate "B'- New Water 6117105 Wade Associates, Inc - Feature Location Plan, Pool Swimming Pool & Equipment Room Plan, & Aquatic Facilities Water Features Details Consultants ADDENDA #7 Addendum #1 To RFP 811105 - - #2 Addendum #2 To RFP 813105 - - #3 Addendum #3 To RFP 814105 - - 4 Addendum #4 To RFP 818105 - - #5 Addendum #5 To RFP 8110105 - - #6 Addendum #6 To RFP 8111105 - - #7 Addendum #7 To RFP 8115105 - - .t 1997 EDITION AIA DOCUMENT General Conditions of the Contract for Construction TABLE OF ARTICLES 1. GENERAL PROVISIONS 2. OWNER 3. CONTRACTOR 4. ADMINISTRATION OF THE CONTRACT S. SUBCONTRACTORS 6. CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 7. CHANGES IN THE WORK 8. TIME 9. PAYMENTS AND COMPLETION 10. PROTECTION OF PERSONS AND PROPERTY 11. INSURANCE AND BONDS I A201-1997 This document has impor- tant legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. This document has been approved and endorsed by The Associated General Contractors of America. 12. UNCOVERING AND CORRECTION Of WORK 13. MISCELLANEOUS PROVISIONS 14. TERMINATION OR SUSPENSION OF THE CONTRACT 01997 A I A S AM DOCOMW A2014997 GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION cAunow Yoir should use an original AIA document with the AIA logo printed in red. An original assures that changes will not be obscured as may occur when documents are reproduced. The American Institute of Architects 1735 New tbrk Avenue. N.W. Gap 19511915 IM aM 1W.1951•>99419i119E'1 wK w. wQ wk iw, w9w by The American Institute of Architects. WasMng?or , D.C. 20006-5292 .Wtaamtt Eftm. Mpeoducrion of the nwerlal herein or substantial quotation of as provisions without written permission of the NA vlduas the w"rW* km of da united Swes and will subject the violator to ko pnoseaftion. WARNING: Urttfasnsed phatoaop flt0 vklsW US. oepp*t laws and will subjW lea vk&W to I%W poaaauttwL t H) o e 0o 0.o 019!7 AIA• AIA DOCUMENT A2t7 4"7 GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION The American Instiwte of Architects 1735 Now York Avenue, N.W. WashiAgton. D.C. 20006-5292 INDEX Acceptance of Nonconforming Work 9.6.6, 9.9.3, 123 Acceptance of Work 9.6-6,9.&Z 9.9.3, 9.10.1, 9.10.3,12-3 Aaess to Wack 3.19, 6a.1,Ua Accident Prevention 4.2-3,10 Acts and Omissions 312 8, 315, 42-3, 438, 4 41, &}r, 9.5.1, 3.2-3-3.2, 10.2.5.13.4.2,13.7,41 Addenda L1.1, 3.11 Additional Costs, Claims for 434 4-3-5,+1.6) 6.1.t, 1o.3 Additional inspections and Testing 9.8.3, U-M,13.5 Additional Time, Claims for . 44.4, 4.3-7.9-3-2 ADMINISTRATION OF THE CONTRACT 3.1-3;4,0.+ 9.5 Advertisement or Imitation to Bid 1.1.1 Aesthetic Effect 4.213.4.5.1 Allowances 3.9 Ail-risk Insurance 11.4.1.1 Applications for Payment "5,7.3.8,9.2,93,9.4,9.5.1.9.6.3,9.7.1,9.8.5- 9.10,11-1.3, WL4.1443 Approvals 2-4,3-1-3- 3-5,21-10-2-3-12,4-2-7s 9.32.134.2,13.5 Arbitration 0-14-4,4-5-1-+5-2-4-6, &3.1,9.7.1, I1.4.9,11410 Architect ' 4.1 Architect, Definition of 4.1.1 Architect, Extent of Authority 24-3127, 4.2+ 4.3.6, 4.4 5-266-17-1-2-7.3.6.7-4. 9.2, 9.3-1,94 9.5-9-8.3,9.10.1,9-10-3. ILI, M.2.1' 13.5.1.13.5.2,14.1.4 14.2.4 Architect, Limitations of Authority and ResponsWity 2-Lt, 3-3-3,3-124 312»8, 3-rL10, 4.1-2, 42-1, 42-, 4.2.3.4.2.6, 4.2.7.4.2.10. 4.2.12, 4-2-13-4.4 5-2.1, 7.4,9.+2.9.6.+ 9.6.6. Architect's Additional Services and Expenses . 2-q,11.4.L1. D-LI,13.5-2,13.5.3,14.2-4 Architeces Administration of the Contract 3.1-3-4.2,4.34 4.4 94 9.5 Architect's Approvals 2-43.1.3,3.5.1,3:10.2.4.2.7 Architect's Authority to Reject Work 3.5-1,4-,L6, m3.2. i2aa Architect's Copyright 1.6 Architects Decisions 4-244-Z7,4-MI, 4.2-r2+ 4.1-13.4-34 441, 4.4.5, 4.46, 4.5,6.3,7.3.6.7-3.9, S L3, &3t, 9.2.9.4, 9.5.1, 9-L4,9-9a, 13.5s,14aa,14-2-4 Architect's Inspections 4a.2, 40..9, 434.9.4-2.9-&3, 9.9.2, 9•toa, t3.5 Architeft's instructions 30..3, 3}1, 4-2.6, 4.2.7, 4.2.8, 7-4-,12.1,13.5.2 Architect's Interpretations +2-12-42 .12, 4-3.6 Architect's Project Representative 4.2.to Architect's Relationship with Conuactor 3-7-3,21-10,3-11,31-M 33C 34 4.L2, 4A.3, 40..4.34 4.44,44-7,5-z, 6.2-2-7. &}l, 90., 93.9 4 9-5,51-7, 9.6, 9.9,10.2-6.10.3,11.3,4.4.7, 1& 1-3.4.2,13.5 Architect's Relationship With Subcontractors 1-L2, 4.2.3, 4.2.4, 4.2.6.9.6.3, 9.6.4,11.4.:7 Architect's Representations 9+4.2.9.5.1, 9-10.1 Architect's Site Visits 4.2-26 4.2-5, 4.2-9,4-34 9.4.19.3.L 9.90., 00.4 13.5 . ` Asbestos 10.}1 Attorneys' Fees 3.1&1, 9.10.'410.3.3 Award of Separate Contracts 6.1.1, 6.1.2 Award of Subcontracts and Other Contracts for Portions of the Work 53 Basic Definitions 1.1 Bidding Requirements lace, ra.7. 5.2.1,11.53 Boiler and Machinery Insurance 11-4.2 Bonds, Lien 9.10.2 Bonds, Performance, and Payment 7.3-64,9.6.7.9.10.3; 11.4.9,11,5 Building Permit 3.7.1 Capitalization 13 Certificate of Substantial Completion 9-8-3,.9-8-4 945 Certificates for Payment 4.2.51 4.2.91 9-3-3,9-4, 9.5.9.6.1, 9.6.6, 9.7.1, 9aoa, 9.10.3,1}7.141.1.3.14-2.4 WARNING: Unlicensed photoooprtn` rbMhs US. oopytyht le„ vs tu+d wUl subad the rlolaror to Ngai peoseeetlon. L Certificates of Inspection, Testing or Approval 13.5.4 Certificates of insurance 9.10.2,11.1.3 Change Orders I.1.1. L41. 34a, 3L23, 3.1 Us 3.128. 4.2.8, +3.+ 4.3.9, 5.2.3, 7.1, 72, 7.3, 8.3.1.9.3.1.1, 9.10.3, 21.4.1.2. 1144 21.4.9, 121.2 Change Orders, Definition of 7.21 CHANGES IN THE WORK 3-11,441-6. 1, 8.3:1, 9.3-1.1,11.4.9 Claim, Definition of 43.1 Calms and Disputes 333, 43.44, 4.5,4.6.6.1.1,6.3,7.3.8- 9.33, 9-10-4- 10-13 Claims and Timely Assertion of Claims 4.413 Claims for Additional Cost 3.2-3,4.3.4,433, 4.3.6, 6.1.1, 7-3410-3.2 Claims for Additiond Time 3.2.3, 4.34, 437, 6411, &3.2,10.3.2 Claims for Conceded or Unlalown Conditions 43.4 Claims for Damages 9.6.7,10.33. 3.2$, 3A, 4.3ao, 6.141, 8-3-3,9-5-1, 11.1.1, IL4.5.114.7,14a-3,14-2-4 Claims Subject to Arbitration 4.4.1, 4.541, 4.6.1 Cleaning Up VS, 6.3 Conditions of the Contract LL1, LL7, 61.1, 6.1.4 Consent, Written 1.6.3.4.2.3.1x.8, 3.14.2.4.1.2.4.3.4.4.6.4, 9.3.2, 9.&5.9.9.1, 9.10-2, 9.10.3,114.1,1}2,13.4.2 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 11.4, 6 Construction Change Directive. Definition of 7-3-1 Construction Change Directives 1.1.1, 3.128, 4-2-8,4-3-90-1,73.9-3-1-1 Construction Schedules, Contractor's L4-L2,3-10s 3.12.1, 3.=2,4-3-7-2,6-1-3 Contingent Assignment of Subcontracts 5.4, W2-L2 Continuing Contract Performance 43.3 Contract, Definition of 112 CONTRACT, TERMINATION OR SUSPENSION Of THE 5.41.1. tL4.9,14 Contract Adaunistmtion 3.1.3, 4,51A 9.5 Contract Award and Execution, Conditions Relating to 3.7-1,330,5.2.6.1, iLL3,1146,11.5.1 Contract Documents, The 1.1, 1.2 Contract Documents, Copies Furnished and Use of L6, 2.2.5.53 Commencement of Statutory Limitation Period Contract Documents, Definition of T3.7 1.1.1 commencement of the Work, Conditions Relating to 2.2.1, 3.2.1, 34.1,3.7.2.3.10.1,3.=6,4.3.5,5-=, 5.2-3.6a 2, &1.2, 8.2.2, &3x,11.1,11.4.1,11.¢6,11.5.1 Commencement of the Work, Definition of 8.1.2 communications Facilitating Contract AdmiziW=tion 3.9a, 4.2.4 Completion, Conditions Relating to 2.6.1,34.43.11,31%4.2.2.4.2-9,9.2,94-%g.& ,9..9.119.10,22.2.13.7,. W.2 COMPLETION, PAYMENTS AND 9 Completion, Subsladtial 4.2.9, LLi, &1.3.8.2.3; 9.4-2,9.8, 9.9.1, 9.1o.3; 9.10.4.'L 12-2,13-7 Compliance with Laws 1-6a. 32.4 3-6,17,3-12-10,333-4-14, 44-3,4-6-4, 4.6.6, 9.6.4,10.2.2,1 L1.11-4,13.1,13.4,13.5.1, 13.5.2,13.6, 14.1.1,14.2.1-3 Concealed or Unknown Conditions 4.3-4,8.3.1.10.3 Contract Sum 3.8,+3.+ +3.5,445,5.2-3,7.2- 7.3, 7-4.9.1, 942, 9.5.1.4, 9.6.7, 9-7,10-3-2,1141,14-24 143-2 Contract Sum, Definition of 9.1 Contract Time 4.34.4.3-7.44-5.5-2-3.7-2-1.3-7.3,74- 8aa, L2, 831 9.5.1.9.7,10.3.2,111.1,143.2 Contract Times Definition of &1.I CONTRACTOR Contractor, Definition of 3a, 6.L2 Contractor's Construction Schedules L4a.2, 3.10, 3-121, 3.122, 43.7.2, 6.1.3 Contractor's Employees 3.32.343, 3&2, 39, 3.18.2, 4-L3, 4.2.6,10.2,10.3, 1LLI.11.4.7, W1, 14.2.L1, Contractor's Liability Insurance TL1 WARNING: Unbcomed Owwopy ft violelw U.S. caRr%M laws and will sW*o the violator to IMW pmseci on. o a oo. .oo° 01297 AIAO MA DOCUMENT AMI-1997 GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION The American Institute of Arddtects 1735 New York Avenue, N.W. Washington, D.C. 20006-5292 i II(? 0 0 00 .oo 01997 AIA• AIA DOCUMENT AX"-7197 GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION Contractor's Relationship with Separate Contractors and Owner's Forces 3.12.5, 3.14.2, 4.2.4.6, 11.4.7,12.1.2, 12.2.4 Contractor's Relationship with Subcontractors 1" 33.2. 3.18.16 3.18.2, 5, 9.6.2, 9.6.7, 9.10.2; I14L2, 1L4.7, IL4.8 Contractor's Relationship with the Architect 1.1-2,1.6, 3.1-3.3-2.1-31.2,3.2.3,3.3.1,3-+2- 3.5.1, 3.7-3.3-10-3.11,332. 3x6,31$, 4J.2.4-1.3,4-7.4.14 4.4.1, 447, 5.2, 6.2.2, 7, &3.1-9-24 9.3, 9.4, •5.9.7. 9.8, 9.9,10.2.6,10.3,11.3,11.4.7,12,13.4.2.13.5 Contractor's Representations L5.2, 3.5.1, 3.12.6, 6.2.2, 8.21, 9.3,3.9.8.2 Contractor's Responsibility for These Performing the Work 3.3.24 318, 4-2-3.4-3-8,5-3-1. 6.1-3.6.2.6.3, 9.5.1, to Contractor's Review of Contract Documents 1.5.2.3-2.37.3 Contractor's Right to Stop the Work 9.7 Contractor's Right to Terminate the Contract 4.310.14.1 Contractor's Submittals 3.10,3.11.3.M 4.2.7, 5.21, 5-2-3,7-3-6.9-26 9-3- 9.8-L 9-&3-9-9-1-9-10,2.9.10.3,11-1.3,11-5.2 Contractor's Superintendent 3.9,10.2.6 Contractor's Supervision and Construction Procedures L2-2-3-3-3-4,3-32-10,4-L2,4-Z-7,4-3-3,6.1.3,6.2.4, 7.1-3,7.34 7.3.6.8.2.10,12,14 Contractual Liability Insurance 1111.8. ILI,11.3 Coordination and Correlation 1.2,1.5.24 3.3.1. 31o, 3.iz.6. 61.3, 6.21 Copies Furnished of Drawings and Specifications 1.6,.2-2.5,3.11 Copyrights 1.6, 317 Correction of Work 2.3.2.4, 37.4 4.2.1.9.42.9.8x, 943, 9.9.1,12.1.2, 12-2,13.7-1.3 Correlation and Intent of the Contract Documents 1.2 Cost, Definition of 7.3.6 costs 24 3.2-3.3.74 3.8.2.3.15.2, 4-3,54-2, 6.1-1.6-2.3, 7.13-3,7.3-6,7-17.7-111, 910.2,10.3.2,10:5, IL3, 11.4, 121, 12.21,122.4,13.5,14 Cutting and Patching 6.2-5.3.14 Damage to Construction of Owner or Separate Contractors 3.14.2+ 6.2.4, 9.2.1.5,10.2.1.2, 10.25, io.6, ua,1L4. 12.2.4 Damages, Claims for 3.2-3.3-M 4.310, 6.1.1, &3.3,9.5.1,9.6.7,10.3-3. 11.1.1,11.4.5, 11.4.7, 14.1.3,14.2.4 Damages for Delay 6.1.1, 43-9.5-1.6,51.7,10-3.2 Date of Commencement of the Work, Definition of ILL2 Date of Substantial Completion, Definition of 81.3 Day, Definition of B.L4 Decisions of the Architect 4.2.6, 42.7, 4.2.11, 4-2-12.4-2-13-4-3-4,4-4-1,44-5, 4.4.6, 4-5,6-3,7.-3-(h 7.}8.8.1.3.8.3.1.9.2.9.4, 9.5.1, 9.84, 991.1352.142.2,14.2.4 Decisions to Withhold Certification 941,95,9.7. KLI-3 Defective or Nonconforming Work, Acceptance, Rejection and Correction of 2.3,24t 35x. 4.2.6,6.7-5.9.5.1,9.5.2.9-6-6, 9.8.2, 9-9-3,9-10-+ 12.2I, 137•L3 Defective Work, Definition of 3.5.1 Definitions Lt. 23.1,11,3.5.1.3.12.1,3-12-21 3.12.3, 4.1.1, 4-3-1,5-1) 6.1.2, 7.2.1.7.3.1, 7.3.6.8.1.9.1, 9.8.1 Delays and Extensions of. Time 3.2.3.43.1, 4.3.4, 4.371 445.5.217.Zi. 7.3.1.741, 7.5.1, 2.3, 9.5.1, 9.7.1,10.}2,10.6.1,14.3.2 Disputes 414 43.44 4.5,4.0.6-3,7-3-8 Documents and Samples at the Site 3.11 Drawings, Definition of I.L5 Drawings and Specifications, Use and Ownership of 11.1,1.3, 2.2.5, 3.11, 5.3 Effective Date of Insurance 8.2.2, 11.1.2 Emergencies 43.5,10.6.14.1-1.2 Employees, Contractor's 3.3.2.343.3.&1, 3.9.3.18.2,4-2.3,4.16, lo.2,10.3, 11.11, IL4.7, 14.1,14.213 Equipment, Labor, Materials and L1.30-1-6,34 35.1, 3.8.2, 3.&3,3-12.3.13.3.15.1. 4.2.6.4.27, 5.2.4 6.2.1, 7.36, 9.32.9.33.9.5••3, 9.10-4 10.2.1,10.2.4,1421-2 Execution and Progress of the Work LL3,1.2.1, 1.2.2.2.23, 2.2.5, 3a; 33.3.4,.35,3.7, 3.10, 3-12,3-14- 4.2.2, 4- 3.4.33 6-2-2,7-1-3- 7-3-+ 8.2.9.5.9.9.1, 10: 2.10.3, 12.2,14.143 Extensions of Time 3.1-3,41-3.1, 4.34.4.3.7, 4.4.5.5.2.3, 7.2•.7.3, 7.41, 9.5.1.9.7.1,10.3.2.10.63,14.3.2 Failure of Payment 4-3-6-9-5-1-3,9.7.9-10.2,14.1-1.3,42.1.2,13.6 The American Institute Damage to the Work of Architects 3.14-2.9.9.1,10.2-1.2,10.2.5,10-6,11411.2-4 1735 New Ybrk Avenue. N.W. Washington, D.C. 20006-5292 WARNING: Unaannd photoc*Im? vk&M U.S. coprrW lawn and will subject"viohtor to ho FroaaNi m L Faulty Work (See Defective or Nonconforming Work) Final Completion and Final Payment 42.1, 42.9, 4.3.2, 9.8.2, 9.10, ILL2, ILLS, 13.4.1, 11.4.5, M3.1,13.7,14.2.4,14.43 Financial Arrangements, Owner's 2.11,13.2.2,14.1.1.5 Fire and Extended Coverage Insurance u4 GENERAL PROVISIONS 1 Governing Law 13.1 Guarantees (Sec Warranty) Hazardous Materials 10.2.4,10,,10.5 Identification of Contract Documents 1.5.1 Identification of Subcontractors and Suppliers 5.21 Indemnification . 3.17, 3.12., 9.10.2,10.3.3,10.5,11.41.2,1L4.7 Information and Services Required of the Owner 2-1.2.2.36 3.2.4 3a2,4, 32.2.10, 4.2.7, 4.33, 6a.3, 6.1.4, 6.2.5, 9-3-2.9-6-4.9-64 9.9.4 9.10.3,10.3.3, 11.2, 1L413.5.1,13.5.2,14A.L4,141.t Injury or Damage to Person or Property 4.34,1o.2, Io.6 Inspections 3.L3.3-3.3-3.7a. 422, 4.2-6.4-19,942,9.8.2, .943,9-9-2- 9-10.1,12 2.1,13.5 Instructions to Bidders LIA Instructions to the Contractor 3.2.3, 3.3.1, 3 8.1, 4.2.9,5.2.1,7* 12,8.2-2,13-5.2 Insurance 3.18.1, 6.11.7.36, &2.1, 9.12,59-8-4. 9.9x, 9.10.2. 9.10.5, u Insurance, Boiler and Machinery 1L42 Insurance, Contractor's Liability 11.1 Insurance, Effective Date of 8.2.2,1LL2 Insurance, Lou of Use 1143 Insurance, Ownei s Liability 1L2 Insurance, Project Management Protective Liability 1L3 Insurance, Property 1o.2.5,114 Insurance, Stored Materials 9.3.2, u.4-14 INSURANCE AND BONDS 11 Insurance Companies, Consent to Partial Occupancy 9.9.1,114L5 Insurance Companies, Settlement with 1L410 Intent of the Contract Documents 1.2-1,4.L7,4.2.12,42-13,7.4 Interest 13.6 Interpretation 1.2.3,1.4, 41.1, 4.3.1.5.1, 61.2.81.4 Interpretations, Written 4.2.11, 4.2.12, 4.3.6 Joinder and Consolidation of Claims Required 46.4 Judgment on Final Award 4.6.6 Labor and Materials, Equipment 1.1.3, LI.6, 3.4, 3.5.1, 3.8.2, 3,8.3, 3.L4 3.13,.3.15.1, 42-6.4-2-7.5-2.1-6.2-1.7-3.6,9.3.2,9.3.3,9.3.1.3, 9.10.2,10.2.1,10-14 14.2.1.2 Labor Disputes &3.1 Laws and Regulations L6,3-2-26 36, 37, 312.10, 313, 4.LI, 44.8, 46, 9.649.9a,1o.2.2., Im,11.4,131,134,135.1,135.2. 13.6, 14 Liens 2.1.2, 4.4.8, 8.2.2, 9.33, 9.10 Limitation on Consolidation or Joinder 4.6.4 Limitations, Statutes of 4.6-3, 12-2-6,13.7 Limitations of Liability 2-3,12-43-5-10-7-1 3-U-8,3.12.10,3.17,3.18, 4.2.6, 4-2-7,4-2-M 6.2.2, 9.4.2;9.6.+ 9.6.7.9.10.4,10.33, 10-2.5,11.1.2,11.2-1,11.4.7,12.2.5,1342 Limitations of Tune 7-1-2,2-2,2-4,3.2.1,3.7.3,3.10,3-11,3-17-5,3-15-1, 4-2-7-4-3-4-4,4-5,4-6,5-2, 5-3,54,6-7-4,7-3,74, 8.2-9.2,9.3.1.9.3.3,9.4.1,9.5.9-C 9.7-9.8,9.9, 9-10,111.3, 11-4.LS 1L4.6. 11.41o, 12.2, 13.5, 13.7, 14 Lou of Use Insurance IL43 Material Suppliers 1-6,3-t2-1,4-2-+ 4x.6, 5.2.1, 9-3,9421 9.6, 9.10.5 Materials, Hazardous 10.x.4,10.3,10.5 Materials, Labor, Equipment and 1.1.3, 1.1.6,1.6.1, 34.3.5.1, 3.8.2, 3.8-2,3,3.M 3.13, 3.15.1, 42.6, 4.2-7,5.2J, 6.2.1.7.36, 9.3.2, 9.3.3, 9.5•L3, 9-10.2,.10,2.1, to.2.4,14.2.L2 Means, Methods, Techniques, Sequences and Procedures of Construction 3-3-1.3-12-10,4-2-2,4-2-7,9-4-2 Mechanic's Lien . 4.48 WARMING: Unacensed phetowp ft violates us, copyrW kws end vA subject the violator tq 1%0 proseanton. jltl O O 61997 AIAm ALA DOCUMENT A=4997 GENERAL CON017IONS OF THE CONTRACT FOR CONSTRUCTION The American Institute of Architects 1735 New York Avenue. N.W. Washington, D.C. 20006-5292 lily 0 0 00. .?O 01997 AIAO AIA DOCUMENT A2tf14W GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION The Artxrian Institute of Architects 1735 New York Avenue, N.W. Washington, D.C. 20006-5292 Mediation 441,4.4.5.4.4.6,4.+8,4.5,4.6.1,4.6.2,8.3.1,10.5 Minor Changes in the Work L1.1, 3.12.8, 4.2-9,4.3.6,7.1,7.4 MISCELLANEOUS PROVISIONS 13 Modifications, Definition of LI.1 Modifications to the Contract 1.1.1,1-1-4,3-7-3,3-Ili 41.2, 4.2.1, 5-2-3,79 L3-1,9-7. 1&3.2,11-4.1 Mutual Responsibility 62 Nonconforming Work, Acceptance of 9.6.6, 9.9.3.12 Nonconforming Work, Rejection and Correction of 2.3.24- 3.5-1.4-2-6.6-2.5-9.5-1,9.&:). 9.9.3.9.10.4, 12.2.1, ]3.7.1.3 Notice 2.2.1, 2-3% 24 3-2-3,3-3-1,3-7.2,3-7A 3.129, 43, 11.1.3, 44& 46.5.5.2.1, &2.2.9.7,9.10,10.2.2. 11-46,12.2.2,12.2.4,13.3,13.51.135.2,14.1,142 Notice, written 2.3.2.4.3-3-1,3-9,312-9,3-1230, 43, 448.46.5• 5.2.1, 8.2.2- 9.7, 910,10.2.2,10.3, ILL3, 11.4.6, 12.2.2,12-24,13.3,14 Notice of Testing and Inspections 135.1,13.5.2 Notice to Proceed &2.2 Notices, Permits, Fees and 2.2.2, 3.7, 3.13.7.36.4,1o.2.2 Observations, Contractor's 1.546 3-2,3-7-3-4-3-4 Occupancy 2.2.2, 9.6.6.9.8,1'.4.1-5 Orders, Witten I.Ll, 2.3 3.9, 43.6, 7, 8.2.2,11-49,12.1,12.2-13.5:2, 14.3.1 OWNER 2 Owner, Definition of 21 Owner, Information and Services Required of the 7.1.2, 2.2, 3.2.1, 312.4,. 3.12.10, 4.2-7+ 43.3.6.L3, 6.14 6.2-5.9-3-2.9-6-1.9-6.4,9.9.2.9-10.3,10-3-3- 11.2, 1L4,13.5a,13.5.2.14•LL4, 141.4 Owners Authority L6, 2AA, 2.32.4, 3.42, 3.81, 3.12.10, 3.142, 4L2, 4.L3,4-2-+ 4-2-9,4-3-6,447,5-2-4 5.2.4.5.4.1, 6.1.6-3-7.2-1.7-3.1, 8.2.2, 8.3.i- 9.3-4.9-3-2.9-5-1. 9.9.1,'9.10.2,10.3.2,1LL3,1L31,1L43,11.410, 12.2.2, 12.3.1,13.2.2,143+ 144 Owner's Financial Capability 2.2.],13.2.2,14.1.7.5 Owners Liability Insurance tL2 Owner's Loss of Use Insurance 1'.43 Owner's Relationship with Subcontractors 1.1.2. 5.2. 5.3, 54 9.64 9.10.2,14.2.2 Owner's Right to Carry Out the Work 2'A,12-L+ 14.2.2.2 Owner's Right to Clean Up Owner's Right to Perform Construction and to Award Separate Contracts 9.1 Owner's Right to Stop the Work 23 Owner's Right to Suspend the Work 143 Owner's Right to Terminate the Contract 142 Ownership and Use of Drawings. Specifications and Oiler Instruments of Service LL1, Lilt "5,3-2-1,3-11-4 3.171, 4.2-14 5.3 Partial Occupancy or Use 9.6.6,1.9,1L4.1.5 Patching, Cutting and . 334, 6.2.5 Patents 3.17 Payment, Applications for 4.7.5.7.3.8, 9.24 93.94 9-5-1,9-64% 9.7.L 9-&5- 9-10-1,9-10-3t 9.10.5, IL1.3,14.2-4,1443 Payment. Certificates for 4-'L5,4-,Lg. 9.3.3,9.4,9-5,9.6j, 9.6.6, 9.7.1, 9.10.1, 910.3,13.7, 14.1.1.3,142.4 Payment, Failure of 43.,,, 9-5.1.3,9.7,9.10,2,14A.1.3,142 12,13.6 Payment, Final 4-2-1,4-2-9,4-3-2.9.8-2. 9.10, W.2, ILL3,11.4.1, 11.4.5.12.31.137.14.241443 Payment Bond, Performance Bond and 7.3-6.4,947-9-10.3,1149, 115 Payments, Progress 4-3-3,59-3,949-&5.9-10-3,13A 14.2-3 PAYMENTS AND COMPLETION 9 Payments to Subcontractors 542, 9.5.L3,9.6.2,9.6.3,9.6.4,9.6.7.11.4.& 14.2.1.2 PCB 10.31 Performance Bond and Payment Board 7.3.64 9.6.7, 9.10.111.49, T1.3 Permits, Fees and Notices 2-2.2.3.7.3-13.7-3-64 10.22 PERSONS AND PROPERTY, PROTECTION OF 10 Polychlorinated Biphenyl 10.3.1 WARNING: Unkmed Photoa vblahs U.S. coP7right biws and will subw do vlobw to Mpl pnowitim. Product Data, Definition of 3.122 Product Data and Samples, Shop Drawings 3.11, 3.12, 4.2.7 Progress and Completion 4.7-2, 4.33, 62, 9.8, 9.9.2,141.4 Progress Payments 4.3-3,9.3.9.9,9-8.5,9.10.3,13.6,14.2-3 Project, Definition of the 1.1.4 Project Management Protective Liability Insurance 113 Project Manual, Definition of the 1.1.7 Project Manuals 225 Project Representatives 4.2-10 Property Insurance io.7-5, TL4 PROTECTION OF PERSONS AND PROPERTY 10 Regulations and Laws 1.6,3.2.36 3.6,3.7, 3.12.10, 3.13, 4.1.1, 448, 4.6, 9.6.4, 9.9.1,10.2.2,1 t1, 11.4,1319 134 13.6,14 Rejection of Work 3.5.1, 4.2.6, nLLt Releases and Waivers of Liens 9.10.2 Representations 1.5-2,3.5a, 332.6,6.2-2,8.2.t, 9.3.3,9.4.2,'9.5.1, 9.8.2, 9.10.1 Representatives 2.1.1, 3.1.1, 3-9,4-1-t, 4.2.1, 4-2-10,5.1.1, 5.1.2,13.2.1 Resolution of Claims and Disputes 4.4,4.5, 4.6 Responsibility for Those Performing the Work 33.2, 3.18, 4-2-3,4-3-8- 5-3-1,6.1.3,6.:L 6.3, 9.5.1,16 Retainage 9.3.1.9.6.2,9.8.5.9-9-1,9.10.2,9.10.3- Review of Contract Documents and Field Conditions by Contractor 1.5.2, 32, 37.3, 312.7, 6.1.3 Review of Contractor's Submittals by Ownet and Arrrhitect 3-10.1-3.10.2.3-11, 332,4.2,5:2, 6.1.3, 9.2, 9.8.2 Review of Shop Drawings, Product Data and Samples by Contractor 312 Rights and Remedies 1.1.'4 2-3,2-4.3-5-1, 3.15.24 4-2-6,4-34A 4.5-4-6.5-3. 5.4, 6.1, 6.3,7.3.1. &:3, 9.5.2,9.7;10.2.5,10.3,1L=. 12.2.4,13.4,14 Royalties, Patents and Copyrights 3.17 Rules and Notices for Arbitration 46.2 Safety of Persons and Property 10.2,10.6 Safety Precautions and Programs 3.3-1,4.2-2.4-2.7-5.3-1. 1&1, 10.2,10.6 Samples, Definition of 3.12.3 Samples, Shop Drawings, Product Data and 3.11,3.12,4.2-7 Samples at the Site, Documents and 3.11 Schedule of values 92,9-3-1 Schedules, Construction 1.41.2, 3.10, 3121, 3.1L2, 4.3.7.2, 6.1.3 Separate Contracts and Contractors 1.1.4, 312.5, 3.4.2, 424 4.27, 4.16.4, 6,11.3a, u.4.7, 12.1.2, 12.25 Shop Drawings, Definition of 3.12.1 Shop Drawings, Product Data and Samples 3.11, 3.12, 4.2.7 Site, Use. of 3.13, 6.1.1,6.7-1 Site inspections 1.2-2,3-2-1,3-3-3,3-7-It 4-2,4-3 .4, 9.4.2, 9.10.1,13.5 Site Visits, Architect's 4.2.2,4.2.9.4.3.4,9.4.24 9.5.1,9.9.2,910.1,13.5 Special Inspections and Testing 4.2.11, 12.2.1,13.5 Specifications, Definition of the 1.1.6 Specifnations, The 1.2.1.1.2.4,1.1.7,1.2.2,1.6, 3.11.3-12.1% 3.17 Statute of Limitations 4.6.3,122.6,13.7 Stopping the Work L3,4.3.6.9-7, lo.3,14a Stored Materials 6.2.1, 9.32, 30.2.1.2, 10.24, 11.4.1:4 Subcontractor, Definition of 5.1.1 SUBCONTRACTORS 5 Subcontractors, Work by 1.2.2.332.3.12.1, 4.2-3,3.2.-% 5.3-5.4-9.3.1-2,9-6-7 Subcontracttal Relations 53, 54 9.3.1:-1.9.6, '9.1010.2.1,11.47,11.4.8,14.1, W2.4 14-3.2 Submittals 1.6.3.10, 311, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.?, 9.3, 9.8> 9.9.1, 9-to.x, 9.10.3,11.1.3 Subrogation, Waivers of 6.ta,1145,11.4.7 Substantial Completion 4.29, &1-1, 8.1.3, 9.4.2,1-8,9-9-1,9-10-3, 9.1042, M2,13-7 Substantial Completion, Definition of 9.8.1 WARNING- Un&awd photowpyldg violates U& copyright laves and vA subject *a vlolatw to IMO pnosawrwt. tq{ 0 0 Off. 01197 AIAO AIA DOCMIUM A2M"7 GENERAL CONDITIONS Of THE CONTRACT FOR CONSTRUCTION The American Institute of Architects . 1735 New York Avenue, N.W. Washington, D.C. 20006.5292 o, o a4 Cbo OT997 AIA• AIA DOCVMiNT A2M4ff7 GENERAL. CONDITIONS. OF THE CONTRACT FOR CONSTRUCTION The American Institute of Architects 1735 New York Avenue, N.W. Washington. D.C. 20006.5292 Substitution of Subcontractors 5.2-3,5-L4 Substitution of Architect 4.1.3 Substitutions of Materials 34.21 3.5.1, 7.3.7 Sub-subcontractor, Definition of 5.1.2 Subsurface Conditions 4.3.4' Successors and Assigns A.2 Superintendent 33,10.2.6 Supervision and Construction Procedures *1-2-2,33, 34.3.12.10, 4.2.2, 42.7, 4.3.3, 6.1.3, 6.2.4, 7-L3.7-3.6,9.2, &3.1,94.2, 10,12,14 Surety 447-541-2,9-8.5, 9.to.2, 910.3,14.x.2 Surety, Consent of 9.10.2, 9.10:3 Surveys 2.2.3 Suspension by the Owner for Conyenience 14.4 Suspension of the Work 5.42,14.3 Suspension or Termination of the Contract 4.3.6,5.4..Lt,11-4.9,14 Taxes 3.6, 3.8-2-1-7.3-6.4 Termination by the Contractor 4.31o,14J Termination by the Owner for Cause 4.3-10,5.4.1.1,14.2 Termination of the Architect 41.3 Termination of the Contractor 142.2 TERMINATION OR SUSPENSION OF THE CONTRACT 14 Tests and Inspections 3.1.3, 3.3.3, 4-12,4.2-6-4.2.9,9.+2,9-8.3,9.9.2- 9.10.1,10-3.2, 11.41.1,12.2.1,13.5 TIME e Time, Delays and Extensions of 3-2-3-4-3-1,4-34 4.3.7, 4-4-5.5-L3,7-2-1,7-3-1, 741.7-5-1. 83.9.5-1.9-7.1,10.3-2,30.6.1, 43.2 Time limits " 2A-242-2, 2.4.3.2.1.3.7.3, 3.10, Sat, 3IL5, 315.1, 4:6 +3,4.+ 45. 46, 5.2, 5-3,54 6-2.4,7.3.74 &2,9.49.3.49.3.3,9449.5,9.6,9.7,9.8,9.9, 9.10,11.1.3,11-4.1.5, 11.4.6,11.4.10,12.2,13.5,13.7,14 Time Limits on Claims 43.2, 43.4 4.3.8, +4-+5,4-6 Title to Work .9-3-2,9.3.3 UNCOVERING AND CORRECTION OF WORK 12 Uncovering of Work 1L1 Unforeseen Conditions 4.34 8.3.1,10.3 Unit Prices 4-3-9,7-3-3-2 Use of Documents 1.11. 1.6.2-2.5-3.12.6,5.3 Use of Site 3.18, 6.1.1, 6.2.1 Values, Schedule of 111119-3-1 Waiver of Claims by the Architect 1}4.2 Waiver of Claims by the Contractor 4-3-10,9-10-% 11-4-7,1142 Waiver of Claims by the Owner 4-3-10,9-9.3% 9-10-3269-10-4- u43,11.45,11.4.7. 11.2.2.1,134.2,14.2.4 Waiver of Consequential Damages 43.110, 14.L4 Waiver of Liens 9.10.2-9.10.4 Waivers of Subrogation 6.1.1,11.4.5,11.4.7 Warranty 35, +2-9,4-3-5-3,9.3.3,9.&4.9.9.1.9.10.4,12.2-2- 13-7J-3 Weather Delays 43.7.2 Work, Definition of i.L3 Written Consent 1-6,3.4.2,3.12.8,3-42.4-1.2,4-3-4.+64 9-3-2- 9.&S. 9.9.1, 9.10.2.9-10,3, 11-4-1,13-2,13-4-2 Written Interpretations 4-7-13.+2-12,4.3.6 Written Notice 2.3, 2-4, 3-3.1, 39, 3.12.9, 3.12.10, 4-3,448,4.6-5, 5.2.1, &=, 9.7, 9.1o, 1o." to.3; t1.L3,11.4.6, 12.22,12.2.413.3,14 Written Orders 11.1, 2-3, 3-9,4-3-6% 7, 8.2.2,11.4.9,12.1.11..2,13.5.2, 14.3.1 WARNING: UnRcwid photocbpft vialaas U.S. cgwW Isms Mid will stbjat tha videwr to lapl pmecwion. ARTICLE 1 GENERAL PROVISIONS 1.1 BASIC DEFINITIONS 1.1.1 THE CONTRACT DOCUMENTS The Contract Documents consist of the Agreement between Owner and Contractor (hereinafter the Agreement), Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract, other documents listed in the Agreement and Modifications issued after execution of the Contract. A Modification is (i) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work issued by the Architect Unless specifically enumerated in the Agreement,'the Contract Documents do not include other documents such as bidding requirements (advertisement or invitation to bid, Instructions to Bidders, sample forms, the Contractor's bid or portions of Addenda relating to bidding requirements). 1.1.2 THE CONTRACT The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract maybe amended or modified only by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind (t) between the Architect and Contractor, (2) between the Owner and a Subcontractor or Sub-subcontractor, (3) between the Owner and Architect or (4) between any persons or entities other than the Owner and Contractor. The Architect shall, however, be entitled to performance acrd enforcement of obligations under the Contract intended to facilitate performance of the Architect's duties. 1.13 THE WORK The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. 1.1.4 THE PROJECT The Project. is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the Owner or by separate contractors. 1.1.5 THE DRAWINGS ' The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams. 1.1.6 THE SPECIFICATIONS The Specifications are that portion of the Contract Documents consisting of the written require- ments for materials, equipment, systems, standards and workmanship for the Work, and perfor- mance of related services. o 0 .o oo. ?o 1.1.7 THE PROJECT MANUAL t The Project Manual is a volume a s s e m b l e d f o r the W o r k which may include the bidding . 0 1 9 9 7 A 1 A requirements, sample forms, Conditions of the Contract and Specifications. AIA DOCUMENT A201-19s7 GENERAL CONDITIONS - OF THE CONTRACT FOR 11 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS CONSTRUCTION 1.2.1 The intent.of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are The A Institute fftM t Architects f of 1735 New York Avenue. N.W. Washington, D.C. 2OD06-5292 WARNING. Unhwmad photocopying vlaWas Us. eopyrIsM laws and will kubjed Ow vb1ow to lapf peoneutbn. complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results. 1.2.2 Organization ofihe Specifications into divisions, sections and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. 1.23 Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. 1.3 CAPITALIZATION 1.3.1 Terms capitalized in these General Conditions include those which are (1) specifically defined, (2) the titles of numbered articles and identified references to Paragraphs, Subparagraphs and Clauses in the document or (3) the titles of other documents published by the American Institute of Architects. 1.4 INTERPRETATION 1.4.1 . In the interest of brevity the Contract Documents frequently omit modifying words such as "all" and "any" and articles such as "the" and "an," but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. 1.5 EXECUTION OF CONTRACT DOCUMENTS 1.5.1 The Contract Documents shall be signed by the Owner and Contractor. If either the Owner or Contractor or both do not sign all the Contract Documents, the Architect shall identify such unsigned Documents upon request. 1.5.2 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become generally familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. 1.6 OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS OF SERVICE 1.6.1 The Drawings, Specifications and other documents, including those in electronic form, prepared by the Architect and the Architect's consultants are Instruments of Service through which the Work to be executed by the Contractor is described. The Contractor may retain one record set. Neither the Contractor nor any Subcontractor, Sub-subcontractor or material or equipment supplier shall own or claim a copyright in the Drawings, Specifications and other documents. prepared by the Architect or the Architect's consultants, and unless otherwise indicated the Architect and the Architect's consultants shall be deemed the authors of them and will retain all common law, statutory and other reserved rights, in addition to the copyrights. All flj? copies of Instruments of Service, except the Contractor's record set, shall be returned or suitably r, o accounted for to the Architect, on request, upon completion of the Work. The Drawings, °oo3 6° ZE- Specifications and other documents prepared by the Architect and the Architect's consultants, and copies thereof furnished to the Contractor, are for use solely with respect to this Project. They are 01997 A I A ® not to be used by the Contractor or any Subcontractor, Sub-subcontractor or material or AIA DOCUMENT A2MI1117. equipment supplier on other projects or for additions to this Project outside the scope of the Work GENERAL CONDITIONS without the specific written consent of the Owner, Architect and the Architect's consultants. The OF THE CONTRACT FOR CONSTRUCTION Contractor,. Subcontractors, Sub-subcontractors and material or equipment suppliers are authorized to use and reproduce applicable portions of the Drawings, Specifications and other The American t of Architects s c documents prepared by the Architect and the Architect's consultants appropriate to and for use in 1735 New York Avenue, H.W. Washington, D.C. 20006-5292 WARNING: Unikmad photocopying violates U.S. copyright lows and will s0ged the violator to legal praaacution. the execution of their Work under the Contract Documents. All copies made under this authorization shall bear the statutory copyright notice, if any, shown on the Drawings, Specifications and other documents prepared by the Architect and the Architect's consultants. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of the Architect's or Architect's consultants' copyrights or other reserved rights. ARTICLE 2 OWNER 2.1 GENERAL 2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all matters requiring the Owner's approval or authorization. Except as otherwise provided in Subparagraph 4.2a, the Architect does not have such authority. The term "Owner" means the Owner or the Owner's authorized representative. 2.1.2 The Owner shall furnish to the Contractor within fifteen days after receipt of a written request, information necessary and relevant for the Contractor to evaluate, give notice of or enforce mechanic's lien rights. Such information shall include a correct statement of the record legal title to the property our which the Project is located, usually referred to as the site, and the Owner's interest therein. 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER 2.2.1 The Owner shall, at the written request of the Contractor, prior to commencement of the Work and thereafter, furnish to the Contractor reasonable evidence that financial arrangements have been made to fulfill the Owner's obligations under the Contract. Furnishing of such evidence shall be a condition precedent to commencement or continuation of the Work. After such evidence has been furnished, the Owner shall not materially vary such financial arrangements without prior notice to the Contractor. 2.2.2 Except for permits and fees, including those required under Subparagraph 3.7.1, which are the responsibility of the Contractor-under the Contract Documents, the Owner shall secure and pay for necessary approvals, easements, assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities. 2.23 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a legal description of the site. The Contractor shall be entitled to rely on the accuracy of information furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work. 2.2.4 Information or services required of the Owner by the Contract Documents shall be furnished by"the Owner with reasonable promptness. Arry other information or services relevant to the Contractor's performance of the Work under the Owner's control shall be furnished by the Owner after receipt from the Contractor of a written request for such information or services. 2.2.3 Unless otherwise provided in the Contract Documents, the Contractor will be furnished, free of charge, such copies of "Drawings and Project Manuals as are reasonably necessary for execution of the Work. ' 23 OWNER'S RIGHT TO STOP THE WORK 23.1 if the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph ins or persistently fails to carry out Work in WARNING: Unlicnwd photooopft violates US copyright laws and will subod the wolaw to ispm prosecution. 11?) 0 0 0 01!97 AIAO AIA DOCUMENT A2WI"7 GENERAL CONPm710NS OF THE CONTRACT FOR CONSTRUCTION The Amerkan Institute of ArchlWs 1735 New York Avenue. N.W. WashirWon, D.C. 20006.5292 accordance with the Contract Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the-cause for such order has been eliminated; however,.the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity, except to the extent required by Subparagraph 6.1.3. 2.4 OWNER'S RIGHT TO CARRY OUT THE WORK 2.4.1 If the Contractor defaults or neglects to carry out the Work in accordance with the. Contract Documents and fails within a seven-day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may after such seven-day period give the Contractor a second written notice to correct'such deficiencies within a three-day period. If the Contractor within such three-day period after receipt of such second notice fails to commence and continue to correct any deficiencies, the Owner may, without prejudice to other remedies the Owner may have, correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the reasonable cost of correcting such deficiencies, including Owner's expenses and compensation for the Architects additional services made necessary by such, default., neglect or failure. Such action by the Owner and amounts charged to the Contractor are both subject to prior approval of the Architect. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the Owner. ARTICLE 3 CONTRACTOR 3.1 ' GENERAL 3.1.1 The Contractor is the person or entity identified as sudh in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Contractor" means the Contractor or the Contractor's authorized representative. 3.1.2 The Contractor shall perform the Work in accordance with the Contract Documents. 3.13 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract. Documents either by activities or duties of the Architect in the Architect's administration of the Contract, or by tests, inspections or approvals required or performed by persons other than the Contractor. 31 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR 31.1 Since the Contract Documents are complementary, before starting each portion of the Work, the Contractor shall carefully study and compare the various Drawings and other Contract Documents relative to that portion of the Work; as well as the information furnished by the Owner pursuant to Subparagraph 2.23, shall take field measurements of any existing conditions related to that portion of the Work and shall observe any conditions at the site affecting it. These obligations are for the purpose of facilitating construction by the Contractor and are not for the llj` purpose of discovering errors, omissions, or inconsistencies in the Contract Documents;. however, any errors, inconsistencies or omissions discovered by the Contractor shall be reported o c promptly to the Architect as a request for information in such form as the Architect may require. , 0 0 3.2.2 - Any design errors or omissions noted by the Contractor during this review shall be !UA 01297 DOCUMENTA,MI -11A!!•7 reported promptly to the Architect, but it is recognized that the Contractor's review is made in the GENERAL CONDITIONS Contractor's capacity as a contractor and not as a licensed design professional unless otherwise OF THE CONTRACT FOR specifically provided in the Contract Documents. The Contractor is not required to ascertain that CONSTRUCTION the Contract Documents are in accordance with applicable laws, statutes, ordinances; building The American Institute codes, and rules and regulations, but any nonconformity discovered by or made known to the of Architects Contractor shall be reported promptly to the Architect. 173S New York Avenue, N.W. Washington, D.C. 20006-5292 WARNING: UaNumad photocoWna violates U.S. coprrialrt laws and will subject the violator to legal prosecution. 0 3.2.3 If the Contractor believes that additional cost or time is involved because of clarifications or instructions issued by the Architect in response to the Contractor's notices or requests for information pursuant to Subparagraphs 3.2-1 and 3.2.2, the Contractor shall make Claims as provided in Subparagraphs 4.3.6 and 4.3.7. If the Contractor fails to perform the obligations of Subparagraphs 3.2.1 and 3.2-2, the Contractor shall pay such costs and damages to the Owner as would have been avoided if the Contractor had performed such obligations. The Contractor shall not be liable to the Owner or Architect for damages resulting from errors, inconsistencies or omissions in the Contract Documents or for differences between field measurements or conditions and the Contract Documents unless the Contractor recognized such error, inconsistency, omission or difference and knowingly failed to report it to the Architect. 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES 3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best shill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures,and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the Owner and Architect and shall not proceed with that portion of the Work without further written instructions from the Architect. If the Contractor is then instructed to proceed with the required means, methods, techniques, sequences or procedures without acceptance of changes proposed by the Contractor. the Owner shall be solely responsible for any resulting loss or damage. 3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Con- tractor's employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors. 3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. 3.4 LABOR AND MATERIALS 3.4.1 unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and- -services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. 3.4.2 The Contractor may make substitutions only with the consent of the Owner, after evaluation by the Architect and in accordance with a Change Order. 11jf 3:4.3 The. Contractor shall enforce strict discipline and good order among the Contractor's o 0 employees and other persons carrying out the Contract. The Contractor shall not permit °oo oe employment of unfit persons or persons not skilled in tasks assigned to them. 01997 AIAD AIA DOCUMENT A2("4"7 3.5 WARRANTY 3.5.1 The Contractor warrants to the Owner and Architect that materials and equipment GENERAL CONDITIONS Of THE CONTRACT FOR furnished under the Contract will be of good quality and new unless otherwise required or CONSTRUCTION permitted by the Contract Documents, that the Work will-be free from defects not inherent in the h quality required or permitted, and that the Work will conform to the requirements of the Contract e American Institute T of Architects V35 New `cork Avenue, N.W. Washington, D.C. 20006.5292 WARMING: Un&ensed photocopying vblo»s Us. copyright lows and will sAjed On violator to legal pmsecatl m Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Architect, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. 3.6 TAXES 3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the Work provided by the Contractor which are legally enacted when bids are received or negotiations concluded, whether or not yet effective or, merely scheduled to go into effect. 3.7 PERMITS, FEES AND NOTICES 3.7.1 unless otherwise provided in the Contract Documents, the Contractor shall secure and pay for the building permit and other permits and governmental fees, licenses and inspections necessary for proper execution and completion of the Work which are customarily secured after execution of the Contract and which are legally required when bids are received or negotiations concluded. 3.7.2 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders of public authorities applicable to performance of the Work 3.73 It is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are at variance therewith, the Contractor shall promptly notify the Architect. and Owner in writing, and necessary changes shall be accomplished by appropriate Modification. 3.7.4 If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, and rules and regulations without such notice to the Architect and Owner, the Contractor shall assume appropriate responsibility for such Work and shall bear the costs attributable to correction. 3.8 ALLOWANCES 3.8.1 The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for such amounts and by such persons or entities as the Owtner may direct, but the Contractor shall not be required to employ persons or entities to whom the Contractor has reasonable objection. 3.8.1 Unless otherwise provided in the Contract Documents: . .1 allowances shall cover the cost to the Contractor of materials and equipment delivered at the site and all required taxes, less applicable trade discounts; .2 Contractor's costs for unloading and.handling at the site, labor, installation costs, -overhead, profit and other expenses contemplated for stated allowance amounts shall be included in the Contract Sum but not in the allowances; .3 whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect. 01997 A I A O (i) the difference between actual costs and the allowances under Clause 3.8.2.1 and AU DoCttMENt (2) changes in Contractor's costs under Clause 3.8.2-2- GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION 3.83 Materials and equipment under an all owance shall be selected by the Owner in sufficient time to avoid delay in the Work. The American Inst itute Of Architects 1735 New York Avenue, N.W. Washington, D.C. 20006-5292 WARNING: UnIcamed photeco"bIg v"tes US. copyght laws and will subject the violator to. legal prosecution. 3.9 SUPERINTENDENT 3.9.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing. Other communications shall be similarly confirmed on written request in each case. 3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES 3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner's and Architect's information a Contractor's construction schedule for the Work The schedule shallnot exceed time limits current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the Work and Project, shall. be related to the entire Project to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work 3.10.2 The Contractor shall prepare and keep current, for the Architect's approval, a schedule of submittals which is coordinated with. the Contractors construction schedule and allows the Architect reasonable time to review submittals. 3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the Owner and Architect. 3.11 DOCUMENTS AND SAMPLES AT THE SITE 3.11.1 The Contractor shall maintain at the site for the Owner one record copy of the Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and marked currently to record field changes and selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be available to the Architect and shall be delivered to the Architect for submittal to the Owner upon completion of the Work. 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES 3.12.1 Shop Drawings are drawings; diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work 3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other infoormatiob furnished by the Contractor to illustrate materials or equipment for some portion of the Work 3.12.3 Samples are physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. 3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Contract Documents the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect is subject to. the limitations of Subparagraph 4:2.7. Informational submittals upon which the Architect is not expected to take responsive action may be so identified in the Contract Documents. Submittals which am not required by the Contract Documents may be returned by the Architect without action. 3.12.5 The Contractor shall review for compliance with the Contract Documents, approve and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals required by WARNING; unltcamed pimdocca " viclales U.S. copy ftta lows and wal subject the viclaw to 6VI pnuacvtlon. 11( 0 0 01997 AIA® 'AIA DOCUMENT A2W4W GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION The American Institute of Architects 1735 New York Avenue, N.W. Washington, D.C. 20006-5292 the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. Submittals which are not marked as reviewed for compliance with the Contract Documents and approved by. the Contractor may be returned by the Architect without action. 3.12.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. 3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the Architect. 3.12.8 The Work 6" be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Architect's approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Architect in writing of such deviation at the time of submittal and (r) the Architect has given written approval to the specific deviation -as a minor change in the Work, or (s) a Change Order or Construction Change Directive has been issi?ed authorizing the deviation. The Contractor shall not be relieved. of responsibility for errors or omissions in Shop Drawings, Product Data, Samples or similar submittals by the Architect's approval thereof. 3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings; Product Data, Samples or similar submittals, to revisions other than those requested by the Architect on previous submittals In the' absence of such written notice the Architect's approval of a resubmission shall not apply to such revisions. 3.123o The Contractor shall not be required to provide professional services which constitute the practice of architecture or engineering unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Contractor needs-to provide' such services in order to carry out the Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. The Contractor shall not be required to provide professional services in violation of applicable law. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the Owner and the Architect will specify all performance and design criteria that such services must satisfy. The Contractor shall cause such services or certifications to be provided by a.properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to the Architect.. The Owner and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, 00 .oo certifications or approvals performed by such design professionals, provided the Owner and Architect have specified to the Contractor all performance and design criteria that such services O 19 9 7 A I A 9 must satisfy. Pursuant to this Subparagraph 3a2-ho, the Architect will review, approve or take other AIA appropriate action on submittals only for the limited purpose of checking for conformance with GENERAL NERAL CO ONDDITIONS CONDITIONS OF THE CONTRACT FOR information given and the design concept expressed in the Contract Documents. The Contractor CONSTRUCTION shall not be responsible for the adequacy of the performance or design criteria required by the the American Insthute Contract Documents. of Architects . 1735 New Yb* Avenue, N.W. Washin". D.C. 20006-5292 WARNING: uRkma d pholocoprlne rbww us. copnyht laws and win sublw t6 violator to ftw pt=mik m I 3.13 USE OF SITE 3.13.1 The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits 'and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. 3.14 CUTTING AND PATCHING 3.14.1 The Contractor shall be responsible for cutting, fitting or patching =Mired to complete the Work or to make its.parts fit together properly. 3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the Owner or a separate contractor except with written consent of the Owner and of such separate contractor, such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. 3.15 CLEANING UP 3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall rernove ham and about-the Project waste materials, rubbish, the Contractor's tools, construction equipment, machinery and surplus materials. 3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and the cost thereof shall be charged to-the Contractor. 3.16 ACCESS TO WORK 3.16.1 The Contractor shall provide the owner and Architect access to the Work in preparation and progress wherever located. 3.17 ROYALTIES, PATENTS AND COPYRIGHTS 3.17.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for.infringement of copyrights and patent rights and shall hold the Owner acid Architect harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents or where the copyright violations are contained in Drawings, Specifications or other doaiments prepared by the Owner or Architect However, if the Contractor has reason to believe that-the required design, process or product is an infringement of a copyright or a patent, the Contractor shall be responsible . for such loss unless such information is promptly furnished to the Architect 3.18 INDEMNIFICATION 3.18.1 To the fullest extent permitted by law and to the extent claims, damages, losses or expenses are not, covered by Project Management Protective Liability insurance purchased by the Contractor in accordance with paragraph 11.3. the Contractor shall indemnify and hold harmless the Owner, Architect, Architect's consultants,-and agents and employees of any of them from and against claims, damages, losses and ncpenses, including but not limited to attorneys' fees, arising out of or resulting from performance of theValrkk, provided that such claim, damage, loss or expense is attributable to bodily injury, sicimess, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be WAtiMING! Uok WWW Photon Vft vWWW US. CWYf t Iwn WW WIN SU*d the VIOW r to 1W1 pro$Mtk e. tl{l 0 0 01997 AIAG AIA DOCUMENT AZWI9W GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION The American Institute of Architects 1735 New York Avenue. N.W. Washington, D.C. 20006-5292 construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Paragraph 3.18. 3.18.2 In claims against any person or entity indemnified under this Paragraph 3.18 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under Subparagraph 3.18.1 shall not be limited by a limitation. on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers' compensation acts, disability benefit acts or other employee benefit acts. ARTICLE 4 ADMINtSTRATION.OF THE CONTRACT 4.1 ARCHITECT 4.1.1 The Architect is the person lawfully licensed to practice architecture or an entity lawfully practicing architecture identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The tens "Architect" means the Architect or the Architect's authorized representative. 4.1.2 Duties, responsibilities and Iilnitations of authority of the Architect as set forth in the Contract Documents shall not be restricted, modified or extended without written consent of the Owner, Contractor and Architect. Consent shall not be unreasonably withheld. 413 if the employment of the Architect is terminated, the Owner shall employ anew Architect against whom the Contractor has no reasonable objection and whose status under, the Contract Documents shall be that of the former Architect. 4.2 ARCHITECTS ADMINISTRATION OF THE CONTRACT 4.2,1 The Architect will provide administration of the Contract as described in the Contract Documents, and will be an Owner's representative (1) during construction, (I) until final payment is due and (3) with the Owner's concurrence, from time to time during the one-year period for correction of Work described in Paragraph 12.2. The Architect will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents, unless otherwise modified in writing in accordance with other provisions of the Contract. 4.2.2 The Architect, as a representative of the Owner, will visit the site at intervals appropriate to the stage of the Contractor's operations (i) to become generally familiar with and to keep the Owner informed about the progress and quality of the portion of the Work completed, (z) to endeavor to guard the Owner against defects and deficiencies in the Work, and (3) to determine 111 general if .the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work The Architect will neither have control over or charge of, nor be II responsible for, the construction means, methods, techniques, sequences or procedures, or for the I{ safety precautions and programs in connection with the Work, since these are solely the o a Contractor's rights and responsibilities under the Contract Documents, except as provided in mac e° Subparagraph 3.3.1. 0 1 9 9 7 A.I A G 4.2.3 The Architect will not be responsible for the Contractor's failure to perform the Work in AIA DOCUMENT AWI-1"7 accordance with the requirements of the Contract Documents. The Architect will not have GENERAL CONDITIONS control over or charge of and will not be responsible for acts or omissions of the Contractor, OF THE CONTRACT FOR CONSTRUCTION Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work. The American institute of Architects 1735 New York Avenue, N.W. Washington, D.C. 20006.5292 . WARNING: UnkeraW pholooopying viobNs U.S. copyright Inns and wN sAod the vialator to lepI prosecution. 4.2.4 Communications Facilitating Contract Administration.. Except as otherwise provided in the Contract Documents or when direct communications have- been specially authorized, the Owner and Contractor shall endeavor to communicate with each other through the Architect about matters arising out of or relating to the Contract Communications by and with the Architect's consultants shall be through the Architect. Communications by and, with Subcontractors and material suppliers shall be through the Contractor. Communications by and with separate contractors shall be through the Owner. 4.25 Based on the Architects evaluations of the Contractor's Applications for Payment, the Architect will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. 4.2.6 The Architect will have authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessaryor advisable, the Architect will have authority to require inspection or testing of the Work in accordance with Subparagraphs 13.5-2 and 13.5.3, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to' the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons or entities performing portions of the Work. 4.2.7 The Architect will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action will be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the Owner, Contractor or separate contractors, while allowing sufficient time in the_Archited's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities; or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect's review of the Contractor's submittals shall not relieve the Contractor of the obligations under Paragraphs 3.3, 3.5 and 3.m The Architect's review shall not constitute approval of safety precautions' or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. 4.2.6 The Architect will prepare Change Orders and Construction Change Directives, and may authorize minor changes in the Work as provided in Paragraph 7.4. 4.2.9 The Architect willconduct inspections to determine the date or dates of Substantial Completion and the date of final completion, will receive and forward to the Owner, for the Owner's review and records, written warranties and related documents required by the Contract Il{ and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. 0 0 d. .o off. o0 4.2.10 If the Owner and Architect. agree, the Arcbitect, will provide one or more project representatives to assist in carrying out the A r c h i t e c t ' s responsibilities at the site. The duties, O 1 9 9 7 A I A O responsibilities and limitations of authority of such project representatives shalt be as set forth in AIA DOCUMENT A201.19107 GENERAL CONDITIONS an exhibit to be incorporated in the Contract Documents. OF THE CONTRACT FOR CONSTRUCTION 4.2.11 The Architect will interpret and decide matters concerning performance under, and requirements of the Contract Documents on written request of either the Owner or Contractor. The t1? institute 1735 New York Avenue. N.W. Washington, D.C. 20006-5292 WARNING: Un ad photocopy vlolatas 115: eapppWit laws and wal s41W tW vtolaor to legal p,osecuft . The Architect's response to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable promptness. If no agreement is made concerning the time within which interpretations required of the Architect shall be.furnished in compliance with this Paragraph 4.2, then delay shall not be recognized on account of failure by the Architect to furnish such interpretations until 15 days after written request is made for them. 4.2.12 Interpretations and decisions of the Architect will be consistent with the intent of and reasonably inferable from -the Contract Documents and will be in writing or in the form of drawings. When making such interpretations and initial decisions, the Architect will endeavor to secure faithful performance by both Owner and Contractor, will not show partiality to either and will not be liable for results of interpretations or decisions so rendered in good faith. 4.2.13 The Architect's decisions on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents. 43 CLAIMS AND DISPUTES 43.1 Definition: A Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matter; in question between the Owner and Contractor arising.out of or relating to the Contract. Claims must be initiated by written notice. The responsibility to substantiate Claims shall rest with the party making the Claim. 4.3.2 Time Limits on Claims. Claims by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. Claims must be initiated by written notice to.the Architect and the other party. 433 Continuing Contract Performance. Pending final resolution of a Claim except as otherwise agreed in writing or as provided in Subparagraph 9.7:1 and Article 14, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract Documents. 43.4 Claims for Concealed or Unknown Conditions. If conditions are 'encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by the observing party shall be given to'the other party promptly before conditions are disturbed and in no event later than 21 days-after'first observance of the conditions. The Architect will promptly investigate such conditions and, if they differ materially and cause. an kixrease or decrease in the Contractor's cost of, or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Tknne? , or both. If the 11{y Architect determines that the conditions at the site are not materially different from those 0 o indicated in the Contract Documents and that no change in the terns of the Contract is justified, °oo oo° the Architect shall so notify the Owner and Contractor in writing, stating the reasons. Claims by either party in opposition to such determination must be made within 2a days alter the Architect O 1 9 9 7 A i A • has given notice of the decision. If the conditions encountered are materially -different, the AIA DOCUMENT AMMfil7 Contract Sum and Contract Time shall be equitably adjusted, but if the Owrier and Contractor GENERAL CONDITIONS cannot agree on an adjustment in the Contract Sum or Contract Time, the adjustment shall be OF THE HE CONTRACT FOR CONSTRUCTION referred to the Architect for initial determination, subject to further proceedings pursuant to Paragraph 4.4. The American Institute of Architects 1i35 Now York Avenue, N.W. Washington, D.C. 20006-5292 WARNING: Unlicensed pWowpy6t vlobw U.S. wpp*t inn esd WIN sutjeo the VhA@ r to b*W pioseaelM. 435 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is -not required for Claims relating to an emergency endangering life or property arising under Paragraph io.6. 43.6 If the Contractor believes additional cost is involved for reasons including but not limited to (i) a written interpretation from the Architect, (2) an order by the Owner to stop the Work where- the Contractor was not at fault, (3) a written order for a minor change in the Work issued by the Architect, (4) failure of payment by the Owner, (5) termination of the Contract by the Owner, (6) Owner's suspension or (7) other reasonable grounds, Claim shall be filed in accordance with this Paragraph 4.3. 43.7 CLAIMS FOR ADDITIONAL TIME 43.7.1 If the Contractor wishes to make Claim for an increase in the Contract Time, written notice as provided herein shall be given. The Contractor's Claim shall include an estimate of cost and of probable effect of delay on progress of the Work. In the case of a continuing delay only one Claim is necessary. 43.7.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could.not have been reasonably anticipated-and had an adverse effect on the scheduled construction. 43.9 Injury or Damage to Person or Property if either party to the Contract suffers injury or damage to person or property because of an act or omission of the other party, or of others for whose acts such party is legally responsible, written notice of such injury or damage, whether or not insured, shall be given to the other party within a reasonable time not exceeding 21 days after discovery. The notice shall-provide sufficient detail to enable the other party to investigate the matter. 4.3.9 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities originally contemplated are materially changed in a proposed Change Order or Construction Change Directive so that application of such unit prices to quantities of Work proposed w?ll cause substantial inequity to the Owner or Contractor; the applicable unit prices shall be equitably adjusted. 43.10 Claims for Consequential Damages. The Contractor and Owner waive Claims against each other for consequential damagesarising out of -or relating to this Contract. This mutual waiver includes: .1 damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation,.and for loss.of management or employee productivity or of the services of such persons; and .2 damages incurred by the'Contractor for 'principal office expenses including the compensation of personnel stationed there, for losses of financing, business and repu- tation, and for loss of profit except anticipated profit arising directly from the Work. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with Ankle ill. Nothing contained in this Subparagraph 4.3.10 shalt be deemed to preclude an awaid of liquidated direct damages, when applicable, in accordance with the requirements of the Contract Documents. 4.4 RESOLUTION OF CLAIMS AND DISPUTES 4.4.1 Decision - of Architect. Claims, including those alleging an error or omission by the Architect but excluding those arising under Paragraphs 10.3 through io.5, shall be referred initially to the Architect for decision. An initial decision by the Architect shall be required as' a WARNING: UnNc nsW photocopft viohes U.S. copyright laws aid will s dqW tM violator to kpl prwamoWn. 14j? 0 0 °o, o0 Oh!!7 AIA• AM DOWN1ENT A2014M GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION The American Institute of Architects 1735 New York Avenue, N.W. waswrWo t, D.C. 20006-5292 t condition precedent to mediation, arbitration or litigation of all Claims between the Contractor and Owner arising prior to the date final payment is due, unless 3o days have passed after the Claim has been referred to the Architect with no decision having been rendered by the Architect. The Architect will not decide disputes between the Contractor and persons or entities other than the Owner. 4.4.2 The Architect will review Claims and within ten days of the receipt of the Claim lake one or more of the following actions: (i) request additional supporting data from the claimant or a response with supporting data from the other party, (2) reject the Claim in whole or in part, (3) approve the Claim, (4) suggest a compromise, or (g) advise the parties that the Architect is unable to resolve the Claim if the Architect lacks sufficient information to evaluate the merits of the Claim or if the Architect concludes that, in the Architect's sole discretion, it would be inappropriate for the Architect to resolve the Claim. 4.4.3 In evaluating Claims, the Architect may, but shall not be obligated to, consult with or seek information from either party or from persons with special knowledge or expertise who may assist the Architect in rendering a decision. The Architect may request the Owner to authorize retention of such persons at the Owner's expense. 4.4.4 If the Architect requests a party to provide a response to a Claim or to funaish additional supporting data, such party shall respond, within ten days after receipt of such request, and shall either provide a response on the requested supporting data, advise the Architect when the response or supporting data will be furnished or advise the Architect that no supporting data will be furnished. Upon receipt of the response or supporting data, if any, the Architect will either reject or approve the Claim in whole or in part. 4.43 The Architect will approve or reject Claims by written decision, which shall state the tea= sons therefor and which shall notify the parties of any change in the Contract Sum or Contract Time or both. The approval or rejection of a Claim by the Architect shall be final and binding on the parties but subject to mediation and arbitration. 4.4.6 When a written decision of the Architect states that (t) the decision is final but subject to mediation and arbitration and (2) a demand for arbitration of a Claim covered by such decision must be made within 3o days after the date on which the party making the demand receives the final'written decision, then failure to demand arbitration within said 3o days' period shall result in the Architect's decision becoming final and binding upon the Owner and Contractor. If the Architect renders a decision after arbitration proceedings have been initiated, such decision may be entered as evidence, but shall not supersede arbitration proceedings unless the decision is acceptable to all parties concerned. 4.4.7 Upon receipt of a Claim against the.Contractor or at any time thereafter, the Architector the Owner may, but is not obligated to, notify the surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Contractor's default, the Architect or the Owner fill may, but is not obligated to, notify the surety and request the surety's assistance in resolving the controversy. 0 0 4,4.8 If a Claim relates to or is the subject of a mechanic's lien, the party asserting such Claim may proceed in accordance with applicable law to comply with the lien notice or filing deadlines 01197 AIAO AM DOCUMENT A7M"y prior to resolution of the Claim by the Architect, by mediation or by-arbitration. GENERAL. CONDITIONS OF THE CONTRACT FOR 4.5 MEDIATION CONSTRUCTION 4.5.1 Any Claim arising out of or related.to the Contract, except Claims relating.to aesthetic The American Institute effect and except those waived as provided for in Subparagraphs 4.3.10, 9a0.4 and 9ao.5 shall, after of Architects initial decision by the Architect or 3o days after submission of toe Claim to the Architect, be 1735 Nevr York Avenue. N.W. Washington, D.C. 20006.5292 WARNING: Uni wwW photocopy vloleles US. copyrISbr hwn wW wag supra the violow to heal p,oseaitbn. subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party. 4.5.2 The parties shall endeavor to resolve their Claims by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. Request for mediation shall be filed in writing with the other party to the Contract and with the American Arbitration Association. 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 6o days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. 4.53 The parties shall share the mediator's fee and any filing fees equally..The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. 4.6 ARBITRATION 4.6.1 Any Claim arising out of or related to the Contract, accept Claims relating to aesthetic effect and except those waived as provided for in Subparagraphs 4.3ao,9.io.4 and 9.10.5, shall, after decision by the Architect or 3o days after submis£ion of the Claim to the Architect, be subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with the provisions of Paragraph 4.5. 4.6.2 -Claims not resolved by mediation shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect. The demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association, and a copy shall be filed with the Architect. 4.6.3 A demand for arbitration shall be made within the time limits specified in Subparagraphs 44.6 and 4.6.1 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 as determined pursuant to Paragraph i3q. 4.6.4 Limitation on Consolidation or Joinder. No arbitration arising out of or relating to the Contract shall include, by consolidation or joinder or in any -other.manner, the Architect, the Architect's employees or consultants, except by written consent containing specific reference to the Agreement and signed by the Architect, Owner, Contractor and any other person or entity sought to be pined. No arbitration shall include,' by consolidation or joinder or in any other manner, parties other than the Owner, Contractor, a separate contractor as described in Article 6 and other persons substantially involved in a common question of fact or law whose presence is required if complete relief is to be accorded in arbitration. No person or entity other than the Owner, Contractor or a separate contractor as described in Article 6 shall be included as an original third party or additional third party to an arbitration whose interest or responsibility is insubstantial: Consent to arbitration involving ari additional person or entity shall not constitute consent to arbitration of a Claim not described therein or with a person or entity not named or described therein. The foregoing agreement to arbitrate and other agreements to arbitrate.with an additional person or entity duly consented to by parties to the Agreement shall be specifically enforceable under applicable law in any court having jurisdiction thereof. WARNING: UnNamed p& t copyBta violeMs US. copprVd-h n and WIN subject the violator to legal proseoAlon. It1 0 0 0199.7 AIAO ABA DOCUMENT A20i- W GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION The American Institute of Architects 1735 New York Avenue, N.W. Washington, D.C. 20006-5292 4.6.5 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. 111 • O O ° •oo 01997 AIA*• AM DOCUMENT A20149117 GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION The American Institute of Architects 1735 New York Avenue, N.W. Washington, D.L. 2OM-5292 4.6.6 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 applicable law in any court having jurisdiction thereof. ARTICLES SUBCONTRACTORS 5.1 DEFINITIONS 5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site. The term "Subcontractor". is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorised representative 'of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. 5.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the site. *The term "Sub-subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub-subcontractor or an authorized representative of the Sub-subcontractor. 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK 51.1 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as. practicable after award of the Contract, shall furnish in writing to -the Owner through the Architect the names of persons or entities (including those who are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work. The Architect will promptly reply to the Contractor in writing stein whether or not the Owner or the Architect, after due investigation, has reasonable objection to any such proposed person or entity. Failure of the Owner or Architect to reply promptly shall constitute notice of no reasonable objection. 5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner or Architect has made reasonable and timely objection. The Contractor shall not be required to contract -with anyone to whom the Contractor has made reasonable objection. 5.2.3 if the Owneror Architect has reasonable objection to a person or entity proposed by the Contractor, the Contractor shall propose another to whom the Owner or Architect has no reasonable objection. If the proposed but rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall -be issued before commencement of the substitute. Subcontractor's Work. However, no increase in the Contract Sum of Contract Time shall be allowed for such change unless the Contractor has acted promptly and responsively in submitting names as required. 5.2.4 The Contractor shall not. change a Subcontractor, person or entity previously selected if the Owner or Architect makes reasonable objection to such substitute. 5.3 SUBCONTRACTUAL RELATIONS 53.1 By appropriate agreement, written where legally required for. validity, the Contractor shall require each Subcontractor, to. the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the wAmmG: unkw&W phatowpying vickm U.S. copyright laws and will PAJW the violator to 1@0 prwsanbn. Subcontractors Work, which the Contractor, by these Documents, assumes toward the Owner and Architect. Each subcontract agreement shall preserve and protect the rights of the Owner and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to the Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, remedies and redress against the Contractor that the Contractor, by the Contract Documents, has against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements With Sub-subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agree- ment, copies of the Contract Documents to which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub-subcontractors. 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS 5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the owner provided that. a assignment is effective onlyAfter termination of the Contract by the Owner for cause pursuant to Paragraph i4.2 and only for those subcontract agreements which the'Owner adcepts by notifying the Subcoi tractor and Contractor in writing; arid a assignment is subject to the prior rights of the surety, if airy, obligated under bond relating to the Contract. 5.4.2 Upon such assignment, if the Work has been suspended for more than 3o days, the Subcontractor's compensation shall'be equitably adjusted for increases in cod resulting from the suspension. ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS 6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the site under Conditions of the Contract identical or substantially similar to these including those portions related to insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is involved because of such action by the Owner, the Contractor !hall make such Claim as provided in Paragraph 43. 6.1.2 When separate contracts are' awarded for different portions of the Project or other construction or operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner-Contractor Agreement. 6.13 The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other separate. contractors and the Owner in reviewing their construction schedules when directed to do sec The Contractor shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then coristitute the schedules to be used by the Contractor, separate contractors and the Owner until subsequently revised. 6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to the same obligations and to have the same rights which apply to the WARNING: Unikennd photoonpyklg vk&M U.S. copyright hews and will "Joe the vialator ro legal prosawtkuL llll a o 01997 AIAO AM DOCUMENT A2014107 GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION The American Institute of AMMtects 1735 New York Avenue, N.W. Washington, M.C. 20006-5292 Contractor under the Conditions of the Contract, including, without excluding others, those stated in Article 3, this Article 6 and Articles io, ii and LL 6.2 MUTUAL RESPONSIBILITY 6.2.1 The Contractor shall afford the Owner and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents. 6.2.2 If part. of the Contractor's Work depends for proper execution or results upon construction or operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect apparent discrepancies or defects in such other construction that would render it unsuitabk for such proper execution and results. Failure' of the Contractor so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or partially completed construction is 6t and proper to receive the Contractor's Work, except as -to defects not then reasonably discoverable. 6.2.3 The Owner shall be reimbursed by the Contractor for casts incurred by the Owner which are payable to a separate contractor because of delays, improperly timed activities or defective construction of the Contractor. The Owner shall be responsible to the Contractor :for costs incurred by the Contractor because of-delays, improperly timed activities, damage to the Work or defective construction of a separate contractor. 6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the Owner or separate contractors as provided in Subparagraph lo.2.5. 6.25 The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Subparagraph 3.14. 6.3 OWNER'S RIGHT TO CLEAN UP 63.1 If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their-respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the Owner may clean up and the Architect will allocate the cost among those responsible. ARTICLE 7 CHANGES IN THE WORK 7.1 GENERAL 7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work, subject to the limitations stated in this Article 7 and elsewhere in the Contract ilk( Documents. 7.1.2 A Change Order shall be based upon agreement among the Owner, Contractor and Architect; a Construction Change Directive requires agreement by the Owner and Architect and O 1 9 9 7 A I A O may or may not be agreed to by the Contractor, an order for a minor change in the Work may be AM DOWMENT A2011-1"7 issued by the Architect alone. GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION 7.13 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the Contractor shall proceed promptly, unless.otherwise provided in the Change The American Institute Order, Construction Change Directive or order for a minor change in the Work. of Architects 1735 New York Avenue, N.W. Washington, D.C. 20006-5292 wAMWG: Unikumed photocopying vldatas U.S. copyrW laws and coat subject the violator to 6MW pramuftL L 7.2 CHANGE ORDERS 7.2.1 A Change Order is a written instrument prepared by the Architect and signed by the Owner, Contractor, and Architect, slating their agreement upon all of the following: .1 change in the Work, .2 the amount of the adjustment, if any, in the Contract Sum; and 3 the extent of the adjustment, if any, in the Contract Time. 7.2.2 Methods used in determining adjustments to the .Contract Sum may include those listed in Subparagraph 7.3.3. 73 CONSTRUCTION CHANGE DIRECTIVES 73.1 A Construction Change Directive is a written order prepared by the Architect and signed by the Owner and Architect, directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions,. deletions or other revisions, the Contract, Sum and Contract Time being adjusted accordingly. 73.2 A Construction Change Directive shall be used in the absence of total agreement on the terns of a Change Order. 73.3 If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment shall be based on one of the fallowing methods: a mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation;. .2 unit prices stated in the Contract Documents or subsequently agreed upon; 3 cost to be determined in. a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or .4 as provided in Subparagraph 7.3.6. 73.4 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved and advise the Architect of the Contractor's agreement or disagreement with the method, if arty, provided in the Construction Change Directive for determining.the proposed adjustment in the Contract Sum or Contract Time. 73.5 A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor therewith, including adjustme4 in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Change Order. 7.3.6 If the Contractor does not respond promptly or disagrees with the method for adjustment in the Contract Sum, the method and the adjustment shall be determined by the Architecton the basis of reasonable expenditures and savings of those performing the Work attributable to the change, including, in case of an increase in the Contract Sum, a reasonable allowance for overhead and profit. In such case, and also under Clause 7.3.3.3, the Contractor shall keep and present, in such form as the Architect may prescribe, an itemized accounting together with appropriate supporting data. Unless otherwise provided in the Contract Documents, costs for the purposes of this Subparagraph 7.3.6 shall be limited to the following: a costs of labor, including social security, -old age and unemployment insurance, fringe AU 'DOCUMENT A2AW11117 benefits required by agreement or custom, and workers' compensation insurance; GENERAL CONRITIONS .2 costs of materials, supplies and equipment, including cost of transportation, whether OF THE CONTRACT FOR incorporated or consumed; CONSTRUCTION 3 rental costs of machinery and equipment, exclusive of hand tools, whether rented from The American Institute the Contractor or others; of Architecis U35 New York AverAw N.W. Washington, D.C. 20006-5292 WARNING: Unlicensed photooopylve plates US. copyrVe laws and will subject the violator to kri proseanion. A costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes related to the Work; and s additional costs of supervision and field office personnel directly attributable to the change. 7.8.7. The amount of credit to be allowed by the Contractor, to the Owner for a deletion or change which results in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change. 73.8 Pending final determination of the total cost of a Construction Change Directive to the Owner, amounts not in dispute for such changes in the Work shall be included in Applications for Payment accompanied by a Change Order indicating the parties' agreement with part or all of such costs. For any, portion of such cost that remains in dispute, the Architect will make an interim determination for purposes of monthly, certifcation for payment for•thoie costs. That determination of cost shall adjust the Contract Sum on the same basis as a Change Order, subject to the right of either party to disagree and assert a claim in accordance with Article 4. 73.9 . When the Owner and Contractor agree with the determination made by the Architect concerning the adjustments in the Contract Sum and Contract Tune, or otherwise reach agreement upon the adjustments, such agreement shall be effective immediately and shall be recorded by preparation and execution of an appropriate Change Order. • 7.4 MINOR CHANGES IN THE WORK 7.4.1 The Architect will have authority to order minor changes in the Work riot involving adjust- ment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order'and shall be binding on the Owner and Contractor. The Contractor shall carry out such written orders promptly. ARTICLE 8 TIME ILI DEFINITIONS 8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. 8.1.2 The date of commencement of the Work is the date established in the Agreement. 8.13 The date of Substantial Completion is the date certified by the Architect in accordance with paragraph 9.& 8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically defined. 11?? 8.2 PROGRESS AND COMPLETION 8.2.1 Tune limits stated in the Contract Documents are of the essence of the Contract. By 7 ° executing the Agreement the Contractor confirms that the Contract Time is a reasonable period o• o a o for performing the Work.' o U 1997 A IA AIA DOCUMENT nmttfsr 0 8.2:2 The Contractor shall not knowing1Y> except by agreement or instruction of the Owner in GENERAL CONDITIONS Writing, prematurely commence operations on the site or elsewhere prior to the effective date of OF THE CONTRACT FOR insurance required by Article it to be furnished by the Contractor and OwneL The date of CONSTRUCTION commencement of the Work shall not be changed by. the effective date of such insurance. Unless . The Amerken Institute the date of commencement is established by the Contract Documents or a notice to proceed given of Architects 1735 New York Avenue, N.W. Washington, D.C. 20006-5292 WARNING: Unikensad photocopying videtes U.S. wpr*t laws and will subject the vfoletor fa Iegei proseaotlan. 'by the Owner, the Contractor shall notify the Owner in writing not less than five days or other agreed period before commencing the work to permit the timely filing of morgages, mechanic's liens and other security interests. 9.23 The Contractor shallproceed expeditiously with adequate forces and shall achieve Substantial Completion. within the Contract Time. 93 DELAYS AND EXTENSIONS OF TIME 93.1 If the Contractor is delayed at any time in the commencement or progress of the Work by an act or neglect of the Owner or Architect, or of an employee of either, or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner pending mediation and arbitration, or by other causes which the Architect determines may justify delay, then the ContractTime shall be extended by Change Order for such reasonable time as the Architect may determine. a3.2 Claims relating to time shall be made in accordance with applicable provisions of Paragraph 4.3. e.33 This Paragraph 8.3 does not preclude i+ecovery of damages for delay by either party under other provisions of the Conti ad Documents. ARTICLE 9 PAYMENTS AND COMPLETION 9.1 CONTRACT SUM 9.1.1 The Contract Sum is stated in the Agreement and, including authorized adjustments,is the total amount payable by the-Owner to the Contractor for performance of the Work under the Contract Documents. 9.2 SCHEDULE OF VALUES 9.2.1 Before the first Application for Payment, the Contractor shall submit to the Architect a schedule of values allocated to various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Contractor's Applications for Payment. 93 APPLICATIONS FOR PAYMENT ' 9.3.1 At least ten days before the date established for each progress payment, the Contractor shall submit to the Architect an itemized Application for Payment for operations completed in accordance with the schedule of values. Such application shall be 'notarized, if required, and supported by such data substantiating the Contractor's Tight to payment as the Owner or Architect may require, such as copies of requisitions from Subcontractors and material suppliers, and reflecting retainage if provided for in the Contract Documents. 9.3.1.1 As provided in Subparagraph 7.3.8, such applications may include requests for payment on account of changes in the Work which, have been properly authorized by Construction Change Directives, or by interim determinations of the Architect, but not yet included in Change Orders. 93a.2 Such applications may not include requests for payment for portions of the Work for which the Contractor does not intend to pay to a Subcontractor or material supplier, unless such Work has been performed by others whom the Contractor intends to pay. WARURN: Uakwa d pbe ac"Ing wolves U.S. eorjeq t i.w: and will subject tiw violow to I%W pmaeution. a? 0 0 Ate. .p0 01997 AIA• AtA OMUNIENT A2014"I GENERAL CON61TIONS OF THE CONTRACT FOR CONSTRUCTION The American Institute of Architects 1735 New York Avenue, N.W. Wast*Vorx D.C. 20006.5292 9.3.2 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If Approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon com- pliance by the Contractor with.procedures satisfactory to the (honer to establish the Owner's title to such materials and equipment or otherwise protect the Owner's interest, and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. 9.33 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment. all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall,'to the best of the Contractor's knowledge, information and belief, be free and dear of liens, claims, security interests or encum- brances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials and equipment relating to the Work. 9.4 CERTIFICATES FOR PAYMENT 9.4.1 The Architect will, within seven days after receipt of the Contractor's Application for Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Architect determines is properly due, or notify the Contractor and Owner in writing of the Architect's reasons for withholding certification in whole or in part as provided in. Subparagraph 9.5.1. 9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect to the Owner, based on the Architeces. evaluation of the Work and the data comprising the Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents. The foregoing representations.are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Architect. The issuance' of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment will not be a representation that the Architect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, (2) reviewed construction means, metbods,.techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment, or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 9S DECISIONS TO WITHHOLD CERTIFICATION !1{1 9.S.1 The Architect may withhold a Certificate for Payment in whole -or in part, to the extent reasonably necessary to protect the Owner, if in the Architect's opinion the representations to the g o Owner required by Subparagraph 94.2 Cannbt be made. If the Architect is usable to certify ° payment. in the amount of the Application, the Architect will notify the Contractor and Owner as provided in Subparagraph. 941. If the Contmctor.and Architect cannot agree on a revised amount, 01097 A I A O Au ttocvMtn Azar-tt»r the Architect will PromPtiY.issue a Certificate for Payment for the amount for which the Architect GENERAL CONDITIONS is able to make such representations to the Owner. The Architect may also withhold a Certificate OF THE CONTRACT FOR for Payment or, because of subsequently discovered evidence, may nullify the whole or a part of a CONSTRUCTION Certificate for Payment previously issued, to such extent as may be necessary in the Architect's The American, Institute of AmMteds 1735 New York Avenue, N.W. Washington, D.C. 20006-5292 i ` WARNIM Uni =wW photo Wft viohlas U.S. coPrright Iews and wal subject the vioLtor b legal pnuaatlion. opinion to protect the Owner from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Subparagraph 3.3.2, because of a defective Work not remedied; a third party claims filed or reasonable evidence indicating probable fling of such claims unless security acceptable to the Owner is provided by the Contractor, 3 failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment; A reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; s damage to the Owner or another contractor, s 'reasonable evidence that the Work will not be completed within the Contract Time, and that,the unpaid.balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or a persistent failure to carry out the Work in accordance with the Contract Documents. 9.5.2 When the above reasons for withholding certification are removed, certification will be made for amounts previously withheld. 9.6 PROGRiSS PAYMENTS 9.6.1 After the Architect has issued a Certificate for Payment, the Owner shall make payment in the manner and within the *time provided in the Contract Documents, and shall so notify the Architect. 9.6.2 The Contractor-shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the amount paid to the Contractor on account of such Subcontractor's portion of the Work, the amount to which.said Subcontractor is entitled, reflecting percentages actually retained hazn.payments to the Contractor on account of such Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub-subconfctors in a similar manner. 9.63 The Architect will, on request, furnish to a Subcontractor, if practicable, information regarding percentages of completion or amounts applied for by the, Contractor and action taken thereon by the Architect and Owner on account of portions of the Work done by such Subcontractbr. 9.6.4 Neither the Owner nor Architect shall have an obligation to.pay or to see to the payment of money to a Subcontractor except as may otherwise be required by law. 9.6.5 payment to material suppliers shall be treated in a manner similar to that provided in Subparagraphs 9.6.2, 9.6.3 and 9.6.4. 9.6.6 A Certificate for payment, a 'progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not in accordance with the Contract Documents. 9.6.7 Unless the Contractor provides the Owner with a payment bond in the full penal sum of the Contract Sum; payments received by "the Contractor for Work properly performed by Subcontractors and suppliers shall be held'by the Contractor -for those Subcontractors or suppliers who performed Work or furnished materials, or both, under contract with the Contractor.for which payment was made by the Owner. Nothing contained herein shall require money to be placed in a separate account and not commingled with money of the Contractor, shall create any fiduciary liability or tort liability on the part of the Contractor for breach of trust or shall entitle any person or entity to an award of punitive damages against the Contractor for breach of the requirements of this provision. WARNING: Unacerued phorocapybg YMms U.S. copyr4ht Was and will su4w rM violator to Wo prosealnon. Ilt D p 01997 AIA® •A!A DOCtrM[MT A2014997 GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION The American Institute of Architects 1735 New Ybrk Avenue, N.W. Washington, D.C. 20006-5292 9.7 FAILURE OF PAYMENT 9.7.1 If the Architect does not issue a Certificate for Payment, through no fault of the Contractor, within seven days after receipt of the Contractor's Application for Payment, or if the Owner does not pay'the Contractor within seven days after the date established in the Contract Documents the amount certified by the Architect or awarded by arbitration, then the Contractor may, upon seven additional days' written notice to the Owner and Architect, stop the Work until payment of the amount owing has been received. The Contract Time shall be extended appropri- ately and the Contract Sum shall be increased by the amount of the Contractor's reasonable costs of shut-down, delay and start-up, plus interest as provided for in the Contract Documents. 9.8 SUBSTANTIAL COMPLETION 9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use. 9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Contractor shall prepare and submit to the Architect a comprehensive list of items to be completed or corrected prior to final payment. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract DocUnients. 9.8.3 Upon receipt of the Contractor's list, the Architect will make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the Architect's inspection discloses any item, whether or not included on the Contractor's list, which is not sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work or designated portion thereof for its intended use, the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the Architect. In such case, the Contractor shall then submit a request for another inspection by the Architect to determine Substantial Completion. 9.8.4 When the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. 9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if any, the Owner shall make payment of retainage applying to such Work or designated portion thereof. Such payment shall be adjusted for Work llj? that is incomplete or not in accordance with the requirements of the Contract Documents. dodo 9.9 PARTIAL OCCUPANCY OR USE 9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work O 19 9 7 A 1 A • at any stage when such portion is designated by separate agreement with the Contractor, AU DOCUMENT A201'O provided such occupancy or use is consented to by the insurer as required under Clause 1L4.1.5 and GENERAL CONDITIONS authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use OF THE CONTRACT FOR CONSTRUCTION may commence whether or not the portion is substantially complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, The American IHW.Is retainage, if any, security, maintenance, heat, utilities, damage to the Work and insurance, and of Arcltiteus 173S New York Avwv^ N.W. Washington, D.C. 20006.5292 WARNING: Unawnsed photoc*ft vlohtas US. copr W hws and wai subjact the vh htw to lead prosedotion. I? u have agreed in writing concerning the period for correction of the Work and commencement of warranties requited by the Contract Documents. When the Contractor considers a portion substantially complete, the Contractor shall prepare and submit a list to the Architect as provided under Subparagraph 9.8.2. Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the progress of the Work shall be determined by written agreement between the Owner and Contractor or, if no agreement is reached, by decision of the Architect. 9.9.2 Immediately prior to such partial occupancy or use, the Owner, Contractor and Architect shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work 9.93 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not' constitute acceptance of Work not complying with the requirements of the Contract Documents. 9.10 FINAL COMPLETION AND FINAL PAYMENT 930.1 Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection and, when the Architect finds the Work acceptable under the Contract Documents and the Contract fully performed, the Architect will promptly issue a final Certificate for Payment stating that to the best of the Architect's knowledge, information and belief, and on.the basi4 of the Architect's on-site visits and inspections, the Work has been completed in accordance with terms and conditions of the'Contract Documents and that the entire balance found to be due the Contractor and noted in the final Certificate is due and payable. The Architect's final Certificate for Payment will constitute a further representation that conditions listed in Subparagraph 9.ro.2 as precedent to the Contractor's being entitled to final payment have been fulfilled. 9.10.2 Neither final payment nor any remaining retained percentage shall become duo until the Contractor submits to the Architect (r) an affidavit 'that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have ban paid or otherwise satisfied, (2) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be canceled or allowed to expire until at least 3o days' prior written notice has been given to the Owner, (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period requited by the Contract Documents, (4) consent of surety, if any, to final payment and (5), if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the Owner. If a Subcontractor refuses to furnish a release or waiver required by the Owner, the Contractor may famish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the Owner all money that the Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees. 9.103 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor or by issuance of Change'Otders affecting final completion, and the Architect so confirms, the Owner shall, upon application by the Contractor and certifi- cation by the Architect, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that WARNING: Unkwued photocVykV,notetes u6. cW taht bws and wM mAlftt th. viobtor to legal pmommon. 0 0 0 O O 01997 AIAG AIA DOCUMRNT A=41987 GENERAL CONDITIONS OF ThE CONTRACT FOR CONSTRUCTION The American.Instilute of Architects 1735 New York Avenue, N.W. Washington, D.C. 20006-5292 portion of the Work fully completed and accepted shall be submitted by the Contrador to the Architect prior to certification of such payment. Such payment shall be made under terms and conditions governing.final payment, except that it shall not constitute a waiver of claims. 9.10.4 The making of final payment shall constitute a waiver of Claims by the Owner except those arising from: .1 liens, Claims, security interests or encumbrances arising out of the Contract and unsettled; .2 failure of the Work to comply-with the requirements of the Contract Documents; or .3 terms of special warranties required by the Contract Documents. 9.10.5 Acceptance of final payment by the Contractor, a Subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment. ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY 10.1 SAFETY PRECAUTIONS AND PROGRAMS 10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. 101 SAFETY OF PERSONS AND PROPERTY 101.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection: to prevent damage, injury or loss to: a employees on the Work and other persons who may be affected thereby; .2 the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under can:, custody or control of the Contractor or the Contractor's Subcontractors or Sub-subcontractors; and a other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 10.2.2 The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons or properly or their protection from damage, injury or loss. 10.23 The Contractor shall erect and maintain, as required by exisiing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. 101.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. 10.25 The Contractor shall promptly remedy damage and loss (other than damage or loss $d o insured under property insurance required by the Contract Documents) to property referred to in ob Clauses 1o.2.1.2 and io.2.t.3 caused in whole or in part by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly. employed by any .of them, or by anyone for WXUMIE/R?AI A whose acts they may be liable and for which the Contractor is responsible under Clauses 1o.2.t.2 GENERAL CONOITIONS and 10.7-1.3, except damage or loss attributable to acts or omissions of the Owner or Architect or OF THE CONTRACT FOR anyone directly or indirectly employed by either of them, or by anyone for whose acts either of CONSTRUCTION them may be liable, and not attributable to the fault or negligence of the Contractor. The The American Institute foregoing obligations of the Contractor are in addition to the Contractor's obligations under of Archltects Paragraph 3.1& 1735 New York Avenue, N.w. Washington, D.C. 20006-5292 WARNING: Unlicensed photocopying vbietes U.S. copyrW laws and wia subject the vkAw to I%W prosecution. 1 10.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect. 10.2.7 The Contractor shall not load or permit any part of the construction or site to be loaded so as to endanger its safety. 103 HAZARDOUS MATERIALS 103.1 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 polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the Contractor shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to the Owner and Architect in writing. 103.2 The Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Contractor and, % the event such material or substance is found to be present, to verify that it has been rendered harmless. Unless otherwise required by the Contract Documents, the- Owner shall furnish in writing to the Contractor and Architect the names and qualifications of persons or entities who are to perform tests verifying 'the presence or absence of such material or substance or who are to perform the task of removal or safe containment of such material or substance. The Contractor :and the Architect will promptly reply to the Owner in writing stating whether or not either has reasonable objection to the persons or entities proposed by the Owner. If either the Contractor or Architect has an objection to a person or entity proposed by the Owner, the Owner shall propose another to whom the Contractor and the Architect have no reasonable objection. When the material or substance has been rendered harmless, Work in the affected area shall resume upon written agreement of the Owner and Contractor. The Contract Time shallbe extended appropriately and the Contract Sum shall, be increased in the amount of the Contractor's reasonable additional costs of shut-down, delay and start-up, which adjustments shallbe accomplished as provided in Article 7. 1033 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contractor, Subcontractors, 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 attor- neys' 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 injury or death as described in Subparagraph 10.3a and has not been rendered harmless. provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death; or to injury to or destruction of tangible property (other than the Work itself) and provided that such damage, loss or expense is not due to the sole negligence of a party seeking indemnity. 10.4 The Owner shall not be responsible under Paragraph io:3 for materials and substances brought to the site by the Contractor unless such materials or substances were required by the Contract Documents. f 10.5 If, without negligence on the part of the Contractor, the Contractor is bead liable for the a?- remediation of a hazardous material or substance solely by reason of performing Work as cost-of required by the Contract Documents, the Owner shall indemnify the Contractor for all cost and .01997 A 1 A • expense thereby incurred, AIA DOCUNKUT A2W "7 GENERAL CONDITIONS Of THE CONTRACT FOR 10.6 EMERGENCIES CONSTRUCTION 10.6.1 In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss. Additional compensation or htt cts Institute acts of of ArArchitects 1735 New York Avenue, N.W. Washington, D.C. 20006.5292 WARNING: Unikweed phoUmpft vioiihs U.S. roP7rW laws and v#2 sul)ad the vlobtor to bpi p,osmW im extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Paragraph 4.3 and Article 7. ARTICLE 11 INSURANCE AND BONDS 11.1 CONTRACTOR'S LIABILITY INSURANCE mu The Contractor shall purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located such insurance as will protect the Contractor from claims set forth below which may arise out of or result from the Contractor's operations under the Contract and for which the Contractor may be legally liable, whether such operations be by the Contractor or by a Subcontractor or by anyone directly or indirectly employed by any of than, or by anyone for whose acts any of them may be liable. a claims under workers' compensation, disability benefit and other similar employee benefit ads which are applicable to the Work to be performed; s claims for damages because of bodily injury, occupational sickness or disease, or death of the Contractor's employees; .3 claims for damages because of bodily injury, sickness or disease, or death of any person other than the Contractor's employees; .4 claims for damages insured by usual personal injury liability coverage; s claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom; A claims for damages because of bodily injury, death of. a person or property' damage arising out of ownership, maintenance or use of a motor vehicle; a claims for bodily injury or property damage arising out of completed operations; and a claims involving contractual liability insurance applicable to the Contractor's obligations under Paragraph 3.tg. 111.2 The insurance required by. Subparagraph ii-la shall be written for not less than limits of liability specified in the Contract Documents or required by law, whichever coverage is greater. Coverages, whether written on an occurrence or claims-made basis, shall be maintained.without interruption from date of commencement of the Work until date of final payment and termination of any coverage required to be maintained after final payment. 11.13 Certificates of insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work These certificates and the insurance policies required by this Paragraph na shall contain a provision that coverages afforded under the policies will not be canceled or allowed'to expire until at least 3o days' prior written notice has been given to the Owner. If any of the foregoing insurance coverages. are required to remain in force. after final payment and are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the final Application for Payment as required by Subparagraph 9.io.2. Information concerning reduction of coverage on account of revised limits or claims paid under the General Aggregate, or both, shall be furnished by the Contractor with reasonable fill promptness in accordance with the Contractor's information' and belief. 11.2 OWNER'S LIABILITY INSURANCE °o?. .oc 11.2.1 The Owner shall be responsible for purchasing and maintaining the Owner's usual liability insurance. 01997 AIAO AM DOCUMENT AA'GM 47 113 PROJECT MANAGEMENT PROTECTIVE LIABILITY INSURANCE GENERAL CONDITIONS 113.1 Optionally, the Owner may require the Contractor to purchase and maintain Project OF THE CONTRACT FOR CONSTRUCTION Management Protective Liability insurance from the Contractor's usual sources as. Primary coverage for the Owner's, Contractor's and Architect's vicarious liability for construction The American Institute operations under the Contract. Unless otherwise required by the Contract Documents, the Owner of Architects 1735 New York Avenue, N.W. Washington. D.C. 20006-5292 WARUMM Unacerssad photoeWft violates 1)3. copyriott laws and will subject the vlolaror to Iylat prosecution. shall reimburse the Contractor by increasing the Contract Sum to pay the cost of purchasing and maintaining such optional insurance coverage, and the Contractor shall not be responsible for purchasing 'any other liability insurance on behalf of the Owner. The minimum limits of liability purchased with such coverage shall be equal to the aggregate of the limits required for Contractor's Liability Insurance under Clauses t1.1.1.2 through 11.1.1.5. 113.2 To the extent damages are covered by Project Management Protective Liability insurance, the Owner, Contractor and Architect waive all rights against each other for damages, except such rights as they may have to the proceeds of such insurance. The policy shall provide for such waivers of subrogation by endorsement or otherwise. 11.3.3 The Owner shall not require the Contractor to include the Owner, Architect or other persons or entities as additional insureds on the Contractor's Liability Insurance coverage under Paragraph na. 11.4 PROPERTY INSURANCE 11.4.1 Unless otherwise provided, the Owner shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located, property insurance written on a builder's risk "all-risk" or equivalent policy form in the amount of the initial Contract Sum, plus value of subsequent Contract modifications and. cost of materials supplied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise provided in the Contract Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance, until final payment has been made as provided in Paragraph 91o.or until no person or entity other than the Owner has an insurable interest in the property required by this Paragraph 11.4 to be covered, whichever is later. This insurance shall include interests of the Owner, the Contractor, Subcontractors and Sub-subcontractors in the Project. 11.4.1.1 Property insurance shall be on an "all-risk" or equivalent policy form and shall include, without limitation, insurance against the perils of fire (with extended coverage) and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious "mischief, collapse, earthquake, flood, windstorm, fatsework, testing and_startup, temporary buildings and debris rempval including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for Architect's and Contractor's services and expenses required as a result of such insured loss. 11.4.1.2 If the Owner does, not intend to purchase such property insurance required by the Contract and with all of the coverages in the amount described above, the Owner shall so inform the Contractor in writing prior to commencement of the Work. The Contractor may then effect insurance . which will protect the interests of the Contractor, Subcontractors and Sub-subcontractors in the Work, and by appropriate Change Order the cost thereof shall be charged to the Owner. If the Contractor is damaged by the failure or neglect of the Owner to purchase or maintain. insurance as described above, without so notifying the Contractor in writing, then the Owner shall bear all reasonable costs properly attributable thereto. 11.4.13 If the property insurance requires deductibles, the Owner shall pay costs not covered 0 0 because of such deductibles. 01997 AIA• •AU? DOCUMENT A201-1"T 11.4.1.4 This property insurance shall cover portions of the Work stored off the site, and also GENERAL CONDITIONS portions of the Work in transit. OF THE CONTRACT FOR CONSTRUCTION 11.4.1.5 Partial occupancy or use in accordance with Paragraph 9.9 shall not. commence until the The Af1 kan institute insurance company or companies providing property insurance have consented to such partial of ArcNieds 1735 New York Avenue, N.W. Washington, D.C. 20006-5292 WARNING: UrJkwo l phetocopykV violates U.S. cW1r1& laws asd will subject the violator to least prosecution. occupancy or use by endorsement or - otherwise. The Owner and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. 11.4.2 Boiler and Machinery Insurance. The Owner shall purchase and maintain boiler and machinery insurance required by the Contract Documents or by law, which shall specifically cover such insured objects during installation and until final acceptance by the Owner, this insurance shall include interests of the Owner, Contractor, Subcontractors and Sub-subcontractors in the Work, and the Owner and Contractor shall be named insureds. 11.43 Loss of Use Insurance. The Owner, at the Owner's option, may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner's property due'to fire or other hazards, however caused. The Owner waives all rights of action against the Contractor for loss of use of the Owner's property, including consequential losses due to fire or other hazards however caused. MA If the Contractor requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance polity, the Owner shall, if possible, include such insurance, and the cost thereof shall be charged to the Contractor by appropriate Change.Order. 11.4.5 If during the Project construction period the Owner insures properties, real or personal or both, at or adjacent to the site by property insurance under policies separate from those insuring the Project, or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the Owner shall waive all rights. in accordance with the terms of Subparagraph u.4.7 for damages caused by fire or other causes. of loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. ti.4.6 Before an exposure to loss may. occur, the Owner shall file with the Contractor a copy of each policy that includes insurance coverages required by this Paragraph iL+ Each policy shall contain all generally applicable conditions, definitions, exclusions and endorsements related to this Project. Each policy shall contain a provision that the policy will not be canceled or allowed to expire, and that its limits will not be reduced, until at least 3o days' prior written notice has been given to the Contractor. 11.4.7 Waivers of Subrogation. The Owner and Contractor waive all rights against (i) each other and any of their subcontractors, sub-subcontractors, agents and employees, each of the other, and (2) the Architect, Architect's consultants, separate contractors described in Article 6, if any, 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 property insurance obtained pursuant to this Paragraph u.4 or other property insurance applicable to the Work, except such rights as they have ' till to proceeds of such insurance held by the Owner as fiduciary. The Owner or Contractor, as appropriate, shall require of the Architect, Architect's consultants, separate contractors described o ° in. Article 6, if any, and the subcontractors, sub-subcontractors, agents and employees of any of them, by appropriate agreements, written where legally required for validity, similar waivers each 01197 AIAO in favor of other parties enumerated herein. The policies shall provide such waivers of A1A DMIGDFT A201- "? subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a. GENERAL CONDITIONS person or entity even though that person or entity-would otherwise have a duty of indemnifica- OF THE CONTRACT FOR tion, contractual or otherwise, did not pay the insurance premium directly or indirectly, and CONSTRUCTION whether or not the person or entity had an insurable interest in the property damaged. The American Institute of Architects 1735 New York Avenue, N.W. Washlrgpn, D.C. 20006-5292 wmmma. unliomsed photowpft violates U3. c" %0. laws and will wblad the violator to tail ismsewtion. 11.4.8 A loss insured under Owner's property insurance shall be adjusted by the Owner as fiduciary and made payable to the Owner as fiduciary for the insureds, as their interests may appear, subject to requirements of arty.applicable mortgagee clause and of Subparagraph u4ao. The Contractor shall pay Subcontractors their just shares of insurance proceeds received by the Contractor, and by appropriate agreements, written where legally required for validity, shall require Subcontractors to make payments to their Sub-subcontractors in similar manner. 11.4.9 If required in writing by a party in interest, the Owner as fiduciary shall, upon occurrence of an insured ioss,•give bond for proper performance of the Owner's. duties. The cost of required bonds shall be charged against proceeds received as fiduciary. The Owner shall deposit in a separate account proceeds so received, which the Owner shall distribute in- accordance with such agreement as the parties in interest may reach, or in accordance with an arbitration award in which case the procedure shall be as provided in Paragraph 4.6. If after such loss no other.special agreement is made and unless the Owner terminates the Contract for convenience, replacement of damaged property shall be performed by the Contractor after notification of a Change in the Work in accordance with Article 7. 11.4.10 The Owner as fiduciary shall have power to adjust and settle a loss with insurers unless one of the parties in interest shall object in writing within five days after occurrence. of loss to the Owner's exercise of this power, `if such objection is made, the dispute shalt be' resolved as provided in Parigraphs 4.5 and 4.6. The Owner as fiduciary shall, in the case of arbitration, make settlement with insurers in accordance with directions of the' arbitrators. If distribution of insurance proceeds by arbitration is required, the arbitrators will direct such distribution. 11.5 PERFORMANCE IM ANDAWMENT BOND 11.5.1 The Owner shall have the right to require the Contractor to furnish bonds covering faithful performance of the Contract and payment of obligations arising thereunder as stipulated in bidding requirements or specifically required in the Contract Documents on the date of execution of the Contract. 11.5.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract, the Contractor shall promptly furnish a copy of the bonds or shall permit a copy to be made. ARTICLE 12 UNCOVERING AND CORRECTION.OF WORK 12.1 UNCOVERING Of WORK ' 12.1.1 If a portion of the Work is covered contrary to the'Architect's request or to requirements specifically expressed in the Contract Documents, it must, if required in writing by the Architect, be uncovered for the Architect's examination and be replaced at the Contractor's expense without change in the Contract Time. 12.1.2 if a portion of the Work has been covered which the Architect has not specifically requested to examine prior to its being covered, the Architect may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner's expense. If such Work is not in accordance with the Contract Documents, correction shall be at the Contractor's expense unless the'condition was caused by the Owner or a separate contractor in which event the Owner shall be responsible for payment of such costs. WARNING: Unkowal photocopft violates U.S. copOW laws and wal.subJaet the viabW 10 legal p,onanlon. it o, o °d• a 01997 AIAO AU1 DOCUMENT A20141997 GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION The American Institute of ArcNWM tr-6.New York Avenue, N.W. Washington, D.C. 20006-5292 tlj? O O 01897 ,AIA® AIA DOCUMENT A2014M GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION The American Institute of Arctdtects 1735 New Ybrk Avenue, N.W. Wsshir!Ston, D.C. 200065292 121 CORRECTION OF WORK 121.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION 121.1.1 The Contractor shall promptly correct work rejected by the Architect or failing to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed. or completed. Costs of correcting such rejected Work, including additional testing and inspections and compensation for the Architect's services and expenses made necessary thereby, shall be at the Contractor's expense. 121.2 AFTER SUBSTAKM COMPLETION 12.2.2.1 in addition to the Contractor's obligations under paragraph 3.5,i& within one year afterthe date of Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties established under. Subparagraph 9.9a, or by terms of an applicable special warranty required by the Contract Documents; any of the Work is found to be -not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance of such condition. The Owna shall give such notice promptly after discovery of the condition. During the one-year period for correction of Work, if the Owner fails to notify the Contractor and-give the Contractor an opportunity to make the core8on, the Owner waives the rights to require correction by the Contrxtor and to make a claim for breach of warranty. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the Owner or Architect, the Owner may correct it in accordance with Paragraph 2-4. 12.2.2.2The one-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work 12.2.23The one-year period for correction of Work shall not be extended by corrective Work performed by the Contractor pursuant to this Paragraph res. 12.23 The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. 12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the Owner or separate contractors caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of .the Contract Documents. 12.2-S Nothing contained in this Paragraph 12.2 shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Establishment of the one-year period for correction of Work as described in Subparagraph 12x2 relates only to the specific obligation of the Contractor to cornett the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may besought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than specifically.to correct the Work. 123 ACCEPTANCE OF NONCONFORMING WORK 123.1 If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made. WARNING: Unpcanad photoeopft violates U.S. coprrtal?t lows and will subject tim vblator to InO pmmw lon. ARTICLE 13 MISCELLANEOUS PROVISIONS 13.1 GOVERNING LAW 13.1.1 The Contract shall be governed by the law of the place where the project is located. 13.2 SUCCESSORS AND ASSIGNS 13.2.1 The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representadva of such-other party in respect to covenants, agreements and obligations contained in the Contract Documents. Except as provided in Subparagraph 13.2.2, neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. 131.2 The Owner may, without consent of the Contractor, assign the Contract' to an institutional lender providing construction financing for the Project. in such event, the lender shalt assume the Owner's rights and obligations under the Contract Documents. The Contractor, shall execute all consents reasonably required to facilitate such assignment. 133 WRITTEN NOTICE 13.3.1 Written notice shall•b e deemed to have been duly served if delivered in person to the individual or a mernber of the, firm or entity or to an officer of the corporation for which it was intended, or if delivered at or sent by registered or certified mail to the last business address known to the party giving notice. 13.4 RIGHTS AND REMEDIU 13.4.1 Duties and obligations imposed-by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law. 13.4.2 No action or failure to act by the Owner, Architect or Contractor shall constitute a waiver of a right or duty afforded them under-the Contract, nor shall 'such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as maybe specifically agreed in writing. 13.5 TESTS AND INSPECTIONS 13.5.1 Tests, inspections and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be made at an appropriate time. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to the Owner, of with the appropriate public authority, and shall bear all related costs of tests, inspections and approvals. The Contractor shall give the Architect timely notice of when and where tests and inspections are to be made so that the Architect may be present for such procedures. The Owner shall bear costs of tests, inspections or approvals which do not become requirements until after bids are received or negotiations concluded. 13.3.2 if the Architect, Owner or public authorities having jurisdiction determine that portions of the Wdrk require additional testing, inspection or approval not included under Subparagraph i3.5.a, the Architect will, upon written authorization from the Owner, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the Architect of when and where tests and inspections are to be made so that the Architect may be present for such procedures: Such costs, except as provided in Subparagraph 13.5.3, shall be at the Owner's expense. WARNING: Unllcm l pholocMirev"tes U.S. cWfftlit laws and will =bjW the Molsw to WVI. rvwWIon. ll? a o ca ?bo 01997 AIAO •AIA DOCUMENT A2M 1917 GENERAL CONDITIONS Of THE CONTRACT FOR CONSTRUCTION The American Institute of Afddtects 1735 New York Avenue, N.W. Washington, D.C. 20006-5292 jr 13.5.3 If such procedures for testing, inspection or approval under Subparagraphs t3.3a and 13.5.2 reveal failure of the portions of the Work to comply with requiremeats established by the Contract Documents, all costs made necessary by such failure including those of repeated procedures and compensation for the Architect's services and expenses shall be at the Contractor's expense. 135.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to the Architect. 135:5 If the Architect is to observe tests, inspections or approvals required by the Contract Documents, the Architect will do so promptly and, 'where -practicable, at the normal place of testing. 135.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. 13.5 INTEREST 13.6.1 Payments due and unpaid under the Contract Documents shall bear interest fiorn 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. 13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD 13.7.1 As between the Owner and Contractor: a Before Substantial Completion. As to acts or failures to act ocnaring prior to the relevant date of Substantial Completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Substantial Completion; . .2 Between Substantial Completion and Final Certificate for Payment. As to. acts or failures to act occurring subsequcnt to the relevant date of Substantial Completion and prior to issuance of the final Certificate for Payment, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events hot later than' the date of issuance of the final Certificate for payment; and 3 After Final *Certificate for Payment. As to acts or failures to ad occurring after the relevant date of issuance of the final Certificate for Payment, any applicable statute of limitations shall commence -to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date of any act or failure to act by the Contractor pursuant to any Warranty provided under Paragraph 3.5, the date of any correction of the Work or failure to correct the Work by the Contractor under Paragraph 12.2, or the date of actual commission of any other ad or failure to perform any duty or obligation by the Contractor or Owner, whichever occurs last. 111 ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT c c 14.1 TERMINATION BY THE CONTRACTOR oo. eo° 14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of 3o con- secutive days through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or O 19 9 7 •A 1 A O their agents or employees or any other persons or entities performing portimu of the Work under ACA DOCUMENT A201 4M reasons: direct or indirect contract with the Contractor, for any of the following GENERAL CONDITIONS a issuance of an order of a court or other public authority having jurisdiction Which OF THE CONTRACT FOR CONSTRUCTION - requires all Work to be stopped; a an act of government, such as a declaration of national emergency which requires all Institute The American of Architects Work to be stopped; 1735 New York Avenue, N.W. Washington, D.C. 20006-5292 WAl NIM Uaftmmd Owftw"" vMWw U.S. eopniSM lows and vA =*a eta v"W to lead pm ecu"an. - , a because the Architect has not issued a Certificate for Payment and has not notified the Contractor of the reason for withholding certification as provided in Subparagraph 9.4.1, or because the Owner has not made payment on a Certificate for Payment within the time stated in the Contract Documents; or .4 the Owner has failed to furnish to the Contractor promptly, upon the Contractor's request, reasonable evidence as required by Subparagraph 2.2a. 143.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor, Sub-subcontracor or their agents or employees or any other persons or entities perfarmi rg portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work by the Owner" as described in Paragnph 14.3 constitute in the aggregate more than ioo percent of the total number of days scheduled for completion, or i2o days in any 363-day.period, whichever is less. 14.13 If one of the reasons described in Subparagraph r4aa or 4.t.2 exists, the Contractor may, upon seven days' written notice to the Owner and Architect, terminate the Contract and recover from the Owner payment for Work ex=iled and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, including reasonable overhead, profit and damages. 14.1.4 If the Work is stopped for a period of 6o consecutive days through no actor fault of the Contractor or a Subcontractor or their agents or employees or any other persons, performing portions of the Work under cantrad with the Contractor because the Owner has persistently failed to fulfill the Owner's obligations under the Contract Documents with respect to matters important to the progress of the Work, the Contractor may, upon seven additional days' written notice to the Owner-and the Architect, terminate the Contract and recover from the Owner as provided in Subparagraph 41.3. 142 TERMINATION BY THE OWNER FOR CAUSE 14.2.1 The Owner may terminate the Contract if the. Contractor. .t persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper materials; s fails to make payment to Subcontractors for materials or labor in accordance' with the respective agreements between the Contractor and the Subcontractors; .3 persistently disregards laws, ordinances, or rules, regulations or orders of a public authority having jurisdiction; or A otherwise is guilty of substantial'breach of a provision of the Contract Documents. 14.2.2 When any of the above reasons exist, the Owner, upon certification by the Architect that sufficient cause exists to justify such action, may without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor's surety, if any, seven days' written notice, terminate employment of the Contractor and may, subject to any prior rights of the surety: a take possession of the site and of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Contractor, s accept assignment of subcontracts pursuant to Paragraph 5.4; and .3 finish the Work by whateverzeaconable method the Owner may deem, expedient. Upon request of the Contractor, the Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the Owner in finishing the Work. 14.23 When the Owner terminates the Contract for one of the reasons stated in Subparagraph 14.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished. WAANIMG: UnUmmed photocopying va>lates US. copyright hrm and wal subpa an Walator to hVI prossa m !!j 0 0 o bo C 01997 AIAO AIA DOGUMMT Am14997 GENERAL CONOITiONS OF THE CONTRACT FOR CONSTRUCTION TI* American Institute of Archhacts V35 New York Avenue, N.W. Washblgrm D.C. 20006-5292 14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Arddteces services and expenses made necessary thereby, and other damages incurred by the Owner and not expressly waived, such excess shall *be paid to the Contractor. If such cats and damages exceed the unpaid balance, the Contractor shall pay the dif- ference to the Owner. The amount to be paid to the Contractor or Owner, as the case maybe, shall be certified by the Architect, upon application, and this obligation 'for payment shall survive termination of the Contract. 143 SUSPENSIOIi sY THE'OWNER FOR CONVENIENCE 1433 The Owner may, without cause, order the Contractor in writing to suspend, delay or inter- rupt the Work in whole or in part for such period of bale as the Owner may determine. 143.2 The Contract Sum and Contract Time shall be adjusted forincreases in the cat and time caused by suspension, delay or interruption as described in Subparagraph 43.1. Adjustment of the Contract Sum shall include profit No adjustment shall be made to the extent: .1 that performance ice, was or would have been so suspended, delayed'or interrupted by . another cause for which the Contractor is responsible, or .2 that an equitable adjustment is 'made or denied under another provision of the Contract. 14.4 TERMINATION BY THE OWNER FOR CONVENIENCE 14.4.1 The Owner may, at any time, terminate the Contract for the Owner's convenience and without cause. 14.4.2 upon receipt of written notice. from the, Owner of such termination for the Owner's convenience, the Contractor shall: .1 cease operations as directed by the Owner in the notice, .2 take actions necessary, or that the Owner 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 subcontracts and purchase orders and enter into no further subcontracts and purchase orders. 14.43 In case of such termination for the Owner's convenience, the Contractor shall be entitled to receive payment for Work executed, and costs incurred by reason of such termination, along with reasonable overhead and profit on the Work not executed. 111 o Q 01997 AIA® ' MA DOCUMitaT A20111197 GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION The American Institute of ArcNiects 1735 New Yoh Avenue, N.W. Wa Nn Inv D.C• 20006.5292 2W WARNiMti: Unkamsd phoocupying violates U.S. copy W laws nsd wi6 subject the vbkW 10 Ngal P-6-11- The following supplements, modifies, changes, deletes from and otherwise amends the Standard Form of Agreement Between Owner and Contractor, AIA'Document Al l l; 1997 Edition ("A greement"). Except as modified below, all provisions of the Agreement shall remain in Weet as part of the Contract Requirements. ARTICLE 1- - OONTRACT DOCUMENTS This article is reused tQ read asfollows: The Contract Documents shall consist of those documents enumerated in the General Conditions of the Contract for Construction, as amended by the .Supplementary Conditions.. All references to the General Conditions of the Contract for Conduction or to-AIA Document A201-1997 shall mean and refer to the AIA Document A201-199.7 as amended by the Supple ntary Conditions, and included as part of the Contract Docus for this Project. ARTICLE 7 - COSTS TO BE' REIMBURSED 7.6.8 This paragraph is deleted. ARTICLE 11- ACCOUNTING RECORDS In the last line, the word "faree" is changed to the word "four". 12.1.3 This p h is.rerised to read as follo "'The Owner shall ar?ake t to the Contractor in the amount certified by the Architect r than fo 45) days after the Owner receives cafe of Payment from the 'feet " ARTICLE 13 - TERMINATION OR SUSPENSION 13.1. This paragraph Is revised to read as follows: "The Contract may be terminated only as provided in the General and SUpplementary Conditions.". 13.2 This paragraph is revised to read as follows: . "In the event that the Contract is terminated, then the amount, if any, to be paid to the Contractor pursuant to the General and supplementary 369630.1 not cause the Guaranteed Maximum Price to be Conditions shall exceeded, nor shall it exceed an amount calcula#ed as follows:" 13.3 The first sentence of this paragraph is deleted. 114 This paragraph is deleted ARTICLE 14 -MISCELLANEOUS PROVISIONS 14.2 This paragraph is revised to read asfollows: "Payments due and unpaid under the Contract shall bear iaterest from the date payment is due at the legal rate prevailing. from time to time at the place where the Project is located." ARTICLE 16 - INSURANCE AND BONDS Add the foliowing.• "Insurance and Bond requiremc ats are set forth M" the General and Supplementary.Conditions." END SUPPLEMENTARY CONDITIONS The following supplements modify, change, delete from, or add to .the "General Conditions of the Contract for Construction", AIA Document A201, 1997 Edition. Where any article, paragraph, such or clause of the General Conditions is modified or deleted by these Supplementary Conditions, the unaltered provisions of that article, paragraph, subparagraph or clause shall remain in effect as part of the Contract Requirements. 1.1 BASIC DEFINITIONS 1.1.1 THE CONTRACT DOCUMENTS Change first sentence to read as follows: The Contract Documents consist of the Agreement between Owner and Contractor (hereinafter the Agreement), General 'Conditions of the Contract for Construction (ALA A201-1997, as amended) Supplementary Conditions, Stipulation Against Mechanic's Liens, Performance Bond (AIA A312) and Payment Bond (AIA A312), Contractor's Affidavit of Payment of Debts and Claims (AIA 0706), Contractor's Affidavit of Release of Liens (AIA 0706A), the Drawings, Specifications, Addenda issued prior to execution of the Contract, other documents listed in the Agreement and Modifications issued after execution of the Contract." Add a sub Article as follows: 111.1.8 STIPULATION AGAINST MECHANIC'S LIENS The term "Stipulation,Against Mechanic's Liens" and the term "Wavier Against Liens" shall be interchangeable throughout the Contract Documents. 1.2 CORRELATION AND CONTENT OF THE CONTRACT DOCUMENTS 1.2.2 Add the following language to the end of the paragraph: ,The. Contractor and each Subcontractor. shall evaluate and satisfy themselves as to the conditions and limitations under which the Work is to be -performed, including, without limitation (1) the location, condition, layout, and nature of the Project site and surrounding areas, (2) generally prevailing climactic conditions, (3) anticipated labor supply and costs, (4) availability and cost of materials, tools, and equipment, and (5) other similar issues. The Owner assumes no responsibility or liability for the safety of the Project site. The Contractor shall be solely responsible for providing a safe place for the performance. of the Work. The Owner shall not be required to make any adjustmtnt in either the Contract Sum, Contract Time, or any Milestone Date in connection with any, failure by the 569799.1 Contractor or any Subcontractor to comply with the requirements of this Paragraph" 1.2.4 Add a sub-Article as follows: "124 In the event of inconsistencies within or between parts of the Contract Documents or between Contract Documents, and applicable standards,' codes, or ordinances, the Contractor shall (1) provide the better quality or greater quantity of the Work or (2) comply with the more stringent requirement, either or both in accordance with.the Architect's interpretation The terms and conditions of this Paragraph 1.2.4, however, shall not relieve the Contractor of any of the obligations set forth in Paragraphs 3.2 and 3.7." ARTICLE 2. OWNER 2.1 GENERAL 2.1.2 Delete this paragraph in its entirety. 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER 2.2.1 Delete this paragraph in its entirety. 2.4.1 In the ninth line, change the period after the word "failure" to a comma and insert the following: "including the Owner's reasonable attorneys' fees.'; strife the following sentence: "Such action by the Owner and amounts charged to the Contractor are both subject to prior approval of the Architect." ARTICLE 3 CONTRACTOR 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR 3.2.3 Delete the last sentence. 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES Add the following new paragraph: "33.4 The Contractor who is awarded the general construction portion of the Project shall provide for the coordination of the Work of its own forces and of all separate contractors. Contractors shall cooperate therewith -as provided in. Paragraph 6.2 and expressly agree to cooperate with the General Contractor in all matters of scheduling and coordination, and acknowledge the rights and responsibilities of the General Contractor in discharging this obligation." 3.4 LABOR AND MATERIALS 3.4.2 Change paragraph to read as follows: -2- "3.4.2 The Contractor may make substitutions only in accordance with requirements of the Project Manual and after evaluation by the Architect." 3.5 WARRANTY 3.5.2 Add the following new paragraph: "3.5.2 The Contractor agrees to assign the'Owner at the time of Substantial Completion of the Work, any and all manufacturer's warranties relating to materials.and labor used in the Work In connection therewith, Contractor further agrees to perform the Work in such a manner consistent with and so as to preserve any and all manufacturer's warranties." 3.7 PERMITS, FEES-AND NOTICES 3.7.4 Change the paragraph to read as follows: "33.4 If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, and/or rules and regulations without such notice to the Architect and Owner, the Contractor shall assume appropriate responsibility for such Work, shall bear the costs, damages, and expenses attributable to correction, and shall indemnify Owner, Architect, and Architect's Consultants for all such costs, damages and expenses, including reasonable attorneys' fees." 3.9 SUPERINTENDENT Add the following new paragraph: "3.9.2 If the Owner or the Architect has reasonable, objections to any superintendent or assistant, the` Contractor shall submit a substitute to whom the Owner or the Architect has no reasonable objection; no increase in the Contract Sum or Contract Time shall be allowed for any such substitution." 3.9.3 Add the following new paragraph: "3.9.3 If during the course of the Project, the Owner reasonably concludes that the Superintendent is not carrying out the duties of the Contractor in accordance with the Contract Documents, the Owner may direct the Contractor to replace such Superintendent at no additional cost to Owner!' 3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES 3.10.1 Change paragraph to read as follows: "3.10.1 Within 15 days after the award of the Contract, the Contractor who is awarded the general construction portion of the Project shall prepare and submit for the Owner's and Architect's information a Contractor's construction schedule for the Work. The schedule shall not exceed time limits current under the Contract -3- Documents,-shall be revised at appropriate intervals as required_by the conditions of the Work and Project, shall be related to the entire Project to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work. All other Contractors shall cooperate with the General Contractor by providing scheduling and other relevant information about their Work for use in the preparation of the Construction Schedule by the General Contractor." 3.10.2 Change paragraph to read as follows: "3.10.2 Within 1S days after the award of the Contract, the Contractor shall prepare and submit to the Architect a schedule of shop drawing submittals. The schedule of shop drawing submittals shall be coordinated with the Contractor's construction schedule and shall allow the Architect reasonable time to review submittals." 3:10:3 Change paragraph to read as follows: "3.10.3 The Contractor shall complete any portion or portions of the Work in such order as may be stated in the Project Manual; or - in the absence of specification requirements stating -the order of the Work, the Contractor shall perform the Work in general accordance with the most recent schedule submitted to the Owner and the Architect. All. Work shall be so arranged and Contractors shall perform their Work so as to complete the Work by the date set forth in the Contract.". 3.10.4 Add the following new paragraph: "3.10.4 In the event that the progress of the Work falls behind the most recent approved schedule of the Work, the Contractor shall prepare. a recovery schedule. depicting the strategy and means to recover all lost time, at no additional cost to the Owner including, where approved by the Owner, working overtime and in multiple shifts. Failure to timely prepare such a recovery schedule shall be a material breach of the requirements of the Contract Documents." 3.11 DOCUMENTS AND SAMPLES AT THE SITE 3.11.1, Change paragraph to read as follows: "3.11.1 The Contractor shall maintain in a safe place at the site one record copy of all Drawings, Project Manual, Addenda, Written Modifications, Change Orders, Construction Change Directives, Field Orders, and written interpretations and clarifications in good order and annotated to show all changes made during construction. Annotations on the Drawings shall show changes in the Work occasioned by field conditions or Owner/Architect authorized changes to the Work All notations shall be dimensioned where the location of the changed item is different than that originally shown and shall show all underground utilities, sewer lines -and the like which have been installed by the Contractor, giving accurate dimensions from column centers and/or exterior building walls. These -4- shall be available to the Architect -and shall be delivered to the Architect for submittal to the Owner upon completion of the Work." 3.131 Add the following new paragraph: "3.13.2 Only materials and equipment which are to be used directly in the Work shall be brought to and stored on the Project site by the Contractor. Materials or equipment no longer required for the Work shall be promptly removed from the Project site. Protection of construction materials and equipment stored at the Project site from weather, theft, damage or all other adversity is solely the responsibility of the Contractor." 3.18 INDEMNIFICATION 3.18.3 Add the following new paragraphs: "3.18.3 The . Contractor's indemnity obligations under this sub-Article 3.18 shall, but not by way of limitation, specifically include, all fines, penalties, and punitive damages arising out o& or in connection with, any violation of or failure to obtain, ,any permit or other approval of a public authority applicable to the Work, by the Contractor or any entity for whom the Contractor is responsible. 3.18.4 In the event Contractor fails to honor its indemnification obligations pursuant to this sub-Article 3.18 upon the assertion of any claim, damage, loss or expense, then Owner, in addition to any other right pursuant to the Contract Documents, may withhold from any payments due or to become due to the Contractor an amount sufficient to protect the Owner from any such claim, damage, loss or expense, including attorneys' fees and expenses reasonably necessary for the defense thereof as determined by the Owner and Architect" ARTICLE 4 ADMINISTRATION OF THE CONTRACT 4.1 ARCHITECT 4.1.3 Change paragraph to read as follows: "4.1.3 If the employment of the Architect is terminated, the Owner shall employ a new Architect whose status under the. Contract Documents shall be that of the former Architect" 4.3 CLAIMS AND DISPUTES -5- 4.3.1 Add the following to the end of the paragraph: "The Owner shall not be required to asserta claim as a condition precedent to exercising any rights vested in it by the Contract Documents, by applicable decisional or statutory law, or by principles of equity." 4.3.4 In -the tenth line, after the words "Contract Documents" insert the following. "or that a reasonable pre-bid or-pre-contract inspection by the Contractor would have uncovered the condition," In the thirteenth line, after the word "different" insert the following. "and could not 'have been discovered by a reasonable pre bid or pre-contract inspection by Contractor." 4.3.7.1 In the second line, strike "of the cost and"; -add the following to the end of the paragraph: "Extensions of time shall be the sole remedy available to the. Contractor for delays of any kind. Contractor expressly acknowledges that it shall not be entitled to claim or to recover any damages of any kind on account of any asserted delays, regardless of the cause of the delay or the responsibility of the Owner in whole or in part for any such delay." 4.3.10 . Delete this paragraph in its entirety. 4.4 RESOLUTION OF CLAIMS AND DISPUTES 4.4.1 Change the second sentence of this paragraph to read as follows: "An initial decision by the Architect shall be required as a condition precedent to the Contractor's right to formally pursue a claim against the Owner in any forum, unless thirty days have passed after the Claim has been referred to the Architect with no decision having been rendered by the Architect." 44.5 Change the last sentence of this paragraph to read as follows: "The approval or rejection of a Claim by the Architect shall be final and binding on the parties, but subject to the claims process set forth in Section 4.6 of the General Conditions, as revised hereby." 4.4.8 Delete this paragraph in its entirety. 4.5 MEDIATION' 4.5.1 Delete this paragraph in its entirety. 4.5.2 Delete this paragraph in its entirety. -6- S 4.5.3 Delete this paragraph in its entirety. 4.6 ARBITRATION Change sub-article title to read "DISPUTE RESOLUTION" 4.6.1 Change paragraph to read as follows: "4.6.1 All claims, disputes and other matters in.question between the Contractor and the Owner arising out of or relating to this Agreement, the Project, the Work, the Contract. Documents or the breach thereof (hereinafter defined .as a "Claim") may, at the Owner's sole option, and only upon the exercise of that sole option by the. Owner, together or separately as the Owner sees fit, and irrespective of whether asserted by the Contractor or the Owner, be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then pending, or by litigation in the -state or federal court in the venue where the Project is located." 4.6.2 Change the paragraph to read as follows: "4.6.2 In the event that the Contractor wishes to assert a Clain against the Owner, the Contractor shall, as a condition precedent thereto, file a Notice of Claim in writing with the Owner, specifically describing the nature and amount of the Claim in the same detail as required by the Pennsylvania Rules of Civil Procedure for the filing of a Complaint The Contractor may not unilaterally elect arbitration or cause arbitration to occur, or elect to commence an . action in a court of competent jurisdiction regarding a Claim The Owner 'has- the sole discretion to decide whether or not any Claim shall be submitlod for arbitration, or litigated in a'court of law or equity, and shall notify the Contractor of its election within 20 days of the receipt of the -Contractor's Notice of Claim - The failure by the Owner to respond in this time period will be deemed an election against arbitration, and in favor of litigation in the Pennsylvania Court. of Common Pleas of the county where the project is located, or in the United States District Court where the Project is located. Only those. Claims that are included in, the Notice shall be preserved. Any Claim not included in the Notice shall be deemed waived." 4.6.3 Change the paragraph to read as follows: "4.6.3 If the Owner notifies Contractor in response to a timely asserted Notice of Claim that it has elected- arbitration, the Contractor shall file a 'notice of demand for arbitration with the American Arbitration Association, and shall be responsible for the payment of all filing fees. If the Owner wishes to submit any Claim to arbitration, the Owner shall file a notice of demand for arbitration with the American Arbitration Association and with the Contractor. The Owner may elect in its notice of demand for arbitration, or in any response to a notice of demand filed by the Contractor after arbitration has been elected by the Owner, to have the discovery rights and procedures provided by the Federal Rules of Civil Procedure -7- f Available and enforceable within any such arbitration proceeding. Nothing herein shall be construed as requiring the Owner to elect arbitration of any Claim." 4.6.4 Change the paragraph to read as follows: "4.6.4 In the event that the Owner elects to arbitrate any Claim asserted, the arbitration may include by consolidation, joinder or in any manner, at the Owner's sole option, any other entities or persons whom the Owner believes to be substantially involved in a common question .f fact or law.. In the event that more than one Claim shall be in existence at the same.tine, the. Owner may, at its sole option, decide which of such Claims shall be arbitrated and which shall not be arbitrated. Such decision shall befinal, and no arbitration shall be authorized to consider, decide, or make any award on any Claim which Owner has determined shall not be arbitrated." 4.6.5 Change the paragraph to read as follows: "4.6.5 For any Claim that the Owner elects arbitration as provided herein, the Owner shall, in its sole discretion, select the locale for the arbitration. Any request or demand for arbitration hereunder, shall be made before the date when institution of legal or equitable proceedings, based on such claims, dispute, or other matter in question would be barred by the applicable statue of limitations." 4.6.6 Change the paragraph .to read as follows: "4.6.6 Notwithstanding any other rights or obligations of either of the parties under any Contract Documents or Agreements, the Contractor shall carry on with the performance of its services and duties hereunder during the pendency of any Claim, .and the Owner shall continue to make payments to.the Contractor in accordance with the Contract Documents. However, the Owner shall be under no obligation to make payments to the Contractor on or against such Claims during the pendency of any arbitration or other proceeding to resolve such Claims" ARTICLE 5 SUBCONTRACTORS 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK 51.1 Change paragraph to read as follows:. "5.2.3 If the Owner or Architect has reasonable objection to a person or entity proposed by the Contractor, the Contractor, shall submit a substitute to whom the Owner and Architect have no reasonable objection. However, no increase -in the Contract Sum or Contract Time shall be allowed for such substitution. 5:3 SUBCONTRACTUAL RELATIONS 5.3.1 Delete "written where legally required for validity," from the first line. -8- ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CON13tACTORS 6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION WORK AND TO AWARD SEPARATE CONTRACTS 6.1.3 Delete this paragraph. 6.2 MUTUAL RESPONSIBILITY "6.2.3 The Owner shall be reimbursed by the Contractor for costs incurred by the Owner which are payable to -a -separate contractor because of delays, improperly timed activities, failure to coordinate construction activities and operations in accordance with Paragraph 33.4, or defective construction of the Contractor. Notice to. Owner of claim.s related thereto shall authorize Architect to withhold certification of payment in accordance with Paragraph 9.5.1." 8.2 PROGRESS AND COMPLETION Add the following new paragraph: "8.2.4 Liquidated Direct Damages: 8.2.4.1 The Contractor acknowledges and recognizes that the Owner is entitled to full and beneficial occupancy and use of the completed Work following expiration of the Contract Time. The Contractor further acknowledges and agrees that if the Contractor fails to complete substantially or cause the Substantial Completion of any portion of the Work within the Contraci Time, the Owner will sustain extensive damages and serious loss as a result of such failure. The amount of such damages will be extremely difficult to ascertain. Therefore, the Ownei and the Contractor agree that if the Contractor fails to achieve Substantial Completion of the Work within the Contract Time, the Owner shall be entitled to retain or recover from the Contractor, as liquidated direct damages and not as a penalty, the following per diem amounts commencing upon the first day following expiration of the Contract Time and continuing until the diite of Substantial Completion. Such liquidated direct damages are hereby agreed to, be a reasonable pre-estimate of damages the Owner will incur as it result of delayed completion of the Work. 8.2.4.2 Should all the Work of the Project not be completed by the expiration. of the Contract Time, there shall be deducted from the final payment as liquidated damages, but not as , a penalty, the sum of $2,500 per. day., . Such Liquidated Damages shall continue until the Work is certified as completed and accepted by the Owner. and Architect. 8.2.4.3 The owner may deduct liquidated damages from any unpaid amounts then or thereafter due the Contractor under this Agreement. Any liquidated direct damages not so deducted from any unpaid amounts due the Contractor shall be -9- payable to the Owner at the demand of the Owner, together with iaterest from the date of the demand at a rate of 1.5% per month. 8.2.4.4 With regard to the, above stated Liquidated Damages, in no case shall total assessed damages be limited to any specific fined sum 8.2.4.5 The Owner agrees that the date when such Liquidated Damages shall cease to accrue shall be that date that the Architect advises that the Project is Substantially Complete. Where Work is stopped by the Architect, for any cause not due to the fault or negligence of the Contractor, Liquidated Damages shall be waived for that period until the Work is again resumed by written order of the Architect. 8.2.4.6 In addition to Liquidated Damages, the Contractor shall pay to the Owner, or the Owner may deduct from any unpaid amounts then or thereafter due the Contractor, the cost of extended professional services incurred by the Owner as a result of the Contractor's delay, including but not limited to extended services of the Architect's onsite representatives, the Owner's legal representatives, and/or any other professional services related to the Project. 8.2.4.7 If any Contractor shall be responsible, in the opinion of the Owner, for delay in the actual time of completion of any other Contractor employed by the Owner in performance of any other portion of the Work, then the Contractor so determined to be responsible shall be liable for and shall pay to the Owner the fixed, agreed and liquidated direct damages otherwise attributable to such other Contractor." 8.3 DELAYS AND EXTENSIONS OF TIME. 8.3.3 Strike this paragraph in its entirety. ARTICLE 9 PAYMENTS AND COMPLETION 9.4 CERTIFICATES FOR PAYMENT Add the following new paragraph: "9.4.3 Monthly payments to the Contractor will be made on the basis of submission prepared by the Contractor. The Contractor's Requisition for Payment Due will require the breakdown of 'total Work complete to date of submission. From this total, retainage will be withheld from each progress payment in the amount of ten (10%) percent of the amount due the Contractor until fifty (5001a) percent of the Contract Work is completed When the Contract is fifty (50°0) percent completed, one-half of the amount retained by the Owner shall be returned to the Contractor, provided that the Architect approves the application for payment, and provided Ru-ther that the Contractor is making satisfactory progress and there is no specific cause for greater withholding. * The sum or sums withheld by the Owner from the Contractor after the Contract Work is Aft (500A) percent completed shall not exceed five (5%) percent of the value of completed Work based on monthly progress payment requests; provided, however, that in the event a dispute -10- arises between the Owner and any Prime Contractor, which dispute is based upon increased costs claimed by one Prime Contractor occasioned by delays or other actions of another Prime Contractor, additional retainage in the sum of one and one-half times the amount of any possible liability may be withheld until such time as a final resolution is agreed to by all parties directly or indirectly involved unless the Contractor causing the additional claim furnishes a Bond satisfactory to the Owner to indemnify such Owner against the claim. All monies retained by the Owner may be withheld from the Contractor until Substantial Completion of the Contract." 9.9 SUBSTANTIAL COMPLETION 9.8.1 Add the following to the end of this paragraph: 'No portion of the Work will be considered substantially complete until all of the following requirements have.been met~ .1 all of the project parts and systems are accessible, operable and usable by the Owner, including the site work and HVAC system testing and balancing; .2 the Project is clean, as defined elsewhere in the Contract Documents; .3 preliminary operation and maintenance manuals have been . submitted to the Architect; .4 preliminary training of the Owner's personnel has taken place as required elsewhere in the specifications; and .5 annotated Record Drawings have been submitted to the Architect; .6 and, all Federal, State and local authorities having jurisdiction over the Project have issued the requisite certifications and/or. approvals so that the Owner can occupy or utilize the Work for its intended Purpose- 11 9.8.4 Add the following sentence to the end of the paragraph: "The Owner shall be entitled -to withhold 2.0 times -the estimated cost of the items set forth in the list accompanying the Certificate of Substantial Completion, as determined initially by the Contractor, subject to the approval by the Architect. These amounts shall be deducted from any payments due and, owing Contractor and held until all items have been completed to the satisfaction of the Owner and the Architect. 9.10 FINAL COMPLETION AND FINAL PAYMENT 9.10.2 After "(5)", add the following to this paragraph: "(6) All record documents set forth in Paragraph 3.11" 10.1 SAFETY PRECAUTIONS AND PROGRAMS Add the following new paragraph: 10.1.2 The Contractor is reminded that all construction sites are subject to the Occupational Safety and Health Act (OSHA). As such, inspections of the workplace may be conducted by a Compliance Safety and Health Officer at any time. The Contractor is responsible for construction means, methods, techniques, sequences or procedures, and safety precautions and programs in connection with the Work. The Contractor shall bring work sites that are unsafe into compliance with the OSHA requirements. Failure to bring the workplace into compliance shall be sufficient cause for the Owner to reduce or withhold payment. Fines assessed to the Owner, the Architect or agents of either, as a result of an OSHA citation shall be deducted from payments to the Contractor." 10.2 . SAFETY OF PERSONS AND PROPERTY Add the following new paragraph: "10.2.4.1 When the transportation, storage, and use of explosives is necessary for the execution of the Work, the Contractor shall familiarize itself with, abide by, and perform said Work in accordance with, all Federal, State and local regulations pertaining thereto. The Contractor shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the transportation, storage, and use of such explosives,. including, but not limited to, all Work requiring the coordination with other separate contractors and as otherwise set forth in Paragraph 3.3, and in connection with the protection of persons and property which :may be affected by the transportation, storage, and use of such explosives. Contractors shall give written notice to all persons potentially impacted by such transportation, storage and use of such explosives." -12- Add the following new paragraph: "14.4.1 No asbestos-containing materials or PCB shall be used on this Project." 11.1 CONTRACTOR'S LIABILITY INSURANCE 11.1.1 Change paragraph to read as follows fretain subparagraphs 11.1.1.1 through "11.1.1 The. Contactor shall purchase from and maintain in -a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located such insurance as will protect the Contractor and also nano as additional juzid. Owner, the Architect, and consultants to the Architect, from claims set forth below which may arise out of or result from the Contractor's operations under the Contract and for which the Contractor may be legally liable, whether such operations be by the Contractor or.by a subcontractor or by anyone directly or indirectly employed.by any of them, or by anyone for whose acts any of them may be liable." 11..1.2. Change the paragraph to read as follows: "11.1.2 The insurance required by Subparagraph 11. shall be written for not less than limits of liability specified in the Contract Documents or required by ; law, whichever coverage is greater. Coverages must be written on an occurrence basis and shall be maintained without interruption from date of commencement of the Work until date of final payment and termination of any coverage required to be maintained after final payment." Add the following new paragraphs: "11.1.2.1 The required insurance and amounts shall, unless otherwise specified as a special term of the Contract, be as follows: Commercial General Liability Insurance with a minimum acceptable limit of coverage of $1,000,000 per occurrence, $2,000,000 aggregate. Coverage must include contractual and products/completed operations liability. .2 Business Auto Liability Insurance with a minimum acceptable limit of coverage of $1,000,000 combined single limit for bodily injury and property damage, $2,000,000 aggregate. Coverage must include owned, hired and non-owned vehicles. .3 Workers' Compensation Insurance must provide benefits as mandated by the State Workers' Compensation Statute. Minimum acceptable -13- t Employer's Liability limit is $100,000 for bodily injury by accident and $100,000 for bodily injury by disease. .4 Excess Liability Insurance with a minimum acceptable limit of coverage of $5,000,000 per occurrence and aggregate. Such coverage shall be excess of the general liability insurance, business auto liability insurance, and employers liability as required by this Contract." "11.1.2.2 Special hazards, if there is a possibility of such hazards existing on the Work contemplated, shall be covered by rider or riders to the policy or policies in amounts acceptable to the Owner. One such ssible hazard, and amount of protection to be provided, is as follows: . i Blasting - One Hundred Thousand ($100,000.00) Dollars. (Example Onlyy' "11.1.2.3 The Contractor shall maintain during the construction period and for an additional period of two (2) years, from the date of completion of the Project, Completed Operations Insurance in the amount of One Million ($1,000,000.00) Dollars. Contractor shall submit to the Owner a certificate of such insurance on -an annual basis throughout the period stated above." 11.1.3 Revise the second sentence to read as follows: "11.1.3 These certificates and the insurance policies required by this Paragraph 11.1 shall contain a provision that coveiages. afforded under the policies will not be canceled or allowed to expire until at least 30 days prior written notice has been given to all Certificate Holders by certified mail with return receipt requested." Add the following new subparagraphs: "11.1.3.1 The Certificate issued by the Contractor's insurance carrier shall name the Owner, the Architect and the Architect's consultants as `Certificate Holders' as well as being named as Additional Insured. 11.1.3.2 Cancellation Clause: Shall contain a 30-day notice of cancellation. 11.1.3.3 The following wording or similar language is not permitted on the Certificate: .1 endeavor to. .2 but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives. .3 This certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage afforded by the policies below. -14- 11.1.3.4 Other Insurance: A statement must be included in the description of the certificate of insurance, indicating that the insurance as stated on this certificate is primary to any and all other applicable and collectable insurance coverages." Add the following new paragraph: "11.1.4 As required by Paragraph 5.3.1, the Contractor shall require all .subcontractors furnishing labor or materials for the Project to take out and maintain the same Commercial General Liability =Insurance, Business Auto Liability Insurance, Workers' Compensation Insurance, and Excess Liability Insurance as required to be provided by the Contractor in accordance with the Contract so as to protect the subcontractor and also name the Owner, Architect, the Architect's consultants and the Contractor as additional insured." 11.3.3 Delete this paragraph in its entirety. 11.4 PROPERTY INSURANCE 11.4.1.2 Delete this paragraph in its entirety. 1.1.4.1.3 Change paragraph to read as follows: 11.4.1.3 If-the property insurance requires deductibles, the Contractor shall pay the costs not covered because of such deductibles." Add the following new paragraph: "11.4.1.6 The insurance required by Paragraph 11.4 is not intended to cover machinery, tools or equipment owned or rented by the Contractor which are utilized in the performance of the Work but not incorporated into the permanent improvements. . The Contractor (at their discretion) shall carry first party property insurance on his equipment and tools which shall be subject to the provisions of Subparagraph 11.4.7. - The Contractor is responsible for all related insurance premiums, deductibles, and retained losses if not insured. The Owner will not supply fast party property insurance coverage for the Contractor's equipment and/or tools." 11.4.6 Change paragraph to read as follows: "11.4.6 Before an exposure to loss may occur, the Contractor shall file with the Owner a copy of each policy that includes insurance coverage required by this Paragraph 11.4. Each policy shall contain all generally applicable conditions, definitions, exclusions and endorsements related to this Project. Each policy shall contain a provision that the. policy will not be canceled or allowed to expire, and. that its limits will not be reduced until at least 30 days' prior written notice has been given to the Owner, certified mail with return receipt requested." 11.5 PERFORMANCE BOND AND PAYMENT BOND -15- 11.5.1 Change paragraph to read as follows: 1111.5.1 The Contractor shall famish a Performance Bond and Payment Bond which meets the following requirements: .1 A Performance Bond at one hundred percent of the Contract amount, conditioned upon the faithful perfomnance of the. Contract in accordance with the. Contract Documents. Such Bond shall be solely for the protection of the Owner. .2 A Payment'Bond at one hundred percent of the Contract amount.. Such Bond shall be solely for the protection of claimants supplying labor or materials to the Prune Contractor to .whom the Contract was awarded, or to any of his subcontractors, in the prosecution of the Work provided for in such Contract, and shall be conditioned for the prompt payment of all such material furnished or labor supplied or performed.in the prosecution of the work `Labor or materials' shall include public utility services and reasonable rentals of equipment, but only for periods when .the equipment rented is actually used at this site. .3 Each of such Bonds shall be executed by one or more surety companies legally authorized to do business in the jurisdiction where the Project is located .4 A Power of Attorney of the surety company must also accompany each Bond, dated as of the issue date of the Bond" Add the following new sub Article paragraph: "11.6 INSURANCE CARRIERS 11.6.1 All insurance coverages required to be obtained and maintained by the Contractor shall be furnished by reputable insurers company authorized to do business on a direct basis in the jurisdiction Nyhere the Project is located or otherwise acceptable to the Owner." ARTICLE 12 UNCOVERING AND CORRECTION OF WORK 12.3 ACCEPTANCE OF NONCONFORMING WORK -16- 12.3.1 Add the following to the end of the paragraph: `"The Architect shall have no authority to bind the Owner to accept work to which the Owner -objects as' being deficient or otherwise inconsistent with the requirements of the Contract Documents" 13.2 SUCCESSORS AND ASSIGNS 13.2.2 Change paragraph. to read as follows: "13.2.2 The Owner may, without consent of the Contractor, assign the Contract to ail institutional lender providing construction and/or permanent financing for the Project. In such event, the lender shall assume the Owner's rights and obligations under the Contract Documents. The Contractor shall execute all consents reasonably required to facilitate such assignment." Add new sub-Article to read as follows: "13.8 WAIVER OF LIENS 13.8.1 Contractor hereby expressly waives, releases and relinquishes any and all right to maintain, or have filed or maintained, any mechanics lien or claim against any of the Owner's property, or any part thereof, or any building or buildings thereon, for or on account of any work,. labor, equipment and/or materials performed, furnished or supplied for the Project, and agrees that no such lien or claims shall be filed or maintained by or on behalf of Contractor, its Subcontractors, suppliers or materialmen of any tier. Contractor fin-ther agrees to indemnify, defend and hold the Owner harmless from any lien or claim for liens filed against the Owner's property by any subcontractor, supplier, or materialmen to Contractor, or to any of Contractor's subcontractors,- materialmen or suppliers. Prior to performing any work on the Project, Contractor shall execute a stipulation against liens in a form satisfactory to the Owner and cause the same to be filed in the appropriate court. ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT 14.2 TERMINATION BY THE OWNER FOR CAUSE 14.2.2 Delete "upon certification by the Architect that sufficient cause exists to justify such action," from the first sentence. 14.2.4 In the second line- after the phrase "and other damages incurred by the Owner'', insert a comma and add the following. "including but not limited to attorneys' fees and other professional. fees and expenses" 14,2.5 Add the following new paragraph: -17- 41 "14.2.5 In the event the Owner terminates the Contract for cause, and it is later determined by a court, arbitrator, or panel of arbitrators, that sufficient cause for termination did not exist, then the termination shall be converted to a termination for convenience pursuant to Section 14.4, and Contractor shall be limited to the compensation set forth in that section, and to no other damages of any kind." 14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE 14.3.2 Delete the sentence "Adjustment of the Contract Sum shall include profit." 14.4.3 In the second line, insert a period after the word "termination" and delete the remainder of the paragraph. -18- C't 7 rv C ?? c 3 "r7 ^r fZ'S i 1 ry ? _ ' _I ? } 3 1 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 19183-01407 Attorney for Defendant National Construction Rental t/d/b/a National Rent-A-Fence VIRGINIA HOSTETTER Plaintiff VS. NATIONAL CONSTRUCTION RENTALS t/d/b/a NATIONAL RENT-A-FENCE Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 08-5855 CIVIL ACTION - LAW JURY TRIAL DEMANDED vs. HARRISBURG AREA YMCA and LOBAR ASSOCIATES, INC. Additional Defendants DEFENDANT NATIONAL CONSTRUCTION RENTALS' ANSWER TO NEW MATTER AND CROSSCLAIMS OF ADDITIONAL DEFENDANT HARRISBURG AREA YMCA 27. The allegation in Paragraph 27 is a legal conclusion to which no responsive pleading is required. 28. The allegation in Paragraph 28 is a legal conclusion to which no responsive pleading is required. 29. No responsive pleading required. 30. The document referenced in Additional Defendant's New Matter speaks for itself and to the extent that the allegation in Paragraph 30 of Additional Defendant's New Matter is inconsistent with the document, that allegation is denied. 31. The document referenced in Additional Defendant's New Matter speaks for itself and to the extent that the allegation in Paragraph 31 of Additional Defendant's New Matter is inconsistent with the document, that allegation is denied. 32. Admitted. 33. Admitted. 34. Admitted. 35. The allegation in Paragraph 35 is a legal conclusion to which no responsive pleading is required. 36. The allegation in Paragraph 36 is a legal conclusion to which no responsive pleading is required. 37. The allegation in Paragraph 37 is a legal conclusion to which no responsive pleading is required. 38. The allegation in Paragraph 38 is a legal conclusion to which no responsive pleading is required. 39. The allegation in Paragraph 39 is a legal conclusion to which no responsive pleading is required. 40. The allegation in Paragraph 40 is a legal conclusion to which no responsive pleading is required. 41. Admitted. 42. Admitted. 43. Denied. Answering Defendant does not have sufficient information to form a belief as to the truth or falsity of the allegation in Paragraph 43 and proof thereof is demanded at trial. 44. The allegation in Paragraph 44 is a legal conclusion to which no responsive pleading is required. WHEREFORE, Defendant National Construction Rentals request judgment be entered in its favor. CROSSCLAIM v. Lobar Associates Inc. 45-55. The allegations in Paragraphs 45-55 are directed at a party other than Answering Defendant and therefore no responsive pleading is required. WHEREFORE, Defendant National Construction Rentals request judgment be entered in its favor. CROSSCLAIM v. National Construction Rentals t/d/b/a National Rent-A-Fence 56. No responsive pleading required. 57. The allegation in Paragraph 57 is a legal conclusion to which no responsive pleading is required. 58. The allegation in Paragraph 58 is a legal conclusion to which no responsive pleading is required. WHEREFORE, Defendant National Construction Rentals request judgment be entered in its favor. MARSHALL DENNEHEY WARNER COLE OGGIN By: _ ;!! Christopher M. Reeser, Esquire Attorney for Defendant National Construction Rentals ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Dated: April 1, 2009 717-651-3509 Ttlar 31. 09 09:35a Ake DiFiore 610-623-8896 p.1 VERIFICATION I, Jane DiFiore, hereby state and aver that I have read the foregoing document which has been drafted by my counsel. The factual statements contained therein are true and correct to the best of my knowledge, information and belief although the language is that of my counsel, and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. This statement is made subject to the penalhies cf 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. JAKE DiFIt? , egional Manager, National 60nstructicn`R&ntai t/d/b/a National Rent-A-Fence 19183-01407 OF THE PP()T,4"-, TAPY, 2009 APR -2 PM 12:5 9 i r t `s? + ?V??NA MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 171.12 717-651-3509 Our File No. 19183-01407 Attorney for Defendant National Construction Rental t/d/b/a National Rent-A-Fence VIRGINIA HOSTETTER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 08-5855 VS. NATIONAL CONSTRUCTION CIVIL ACTION - LAW RENTALS t/d/b/a NATIONAL RENT-A-FENCE JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I, Christopher M. Reeser, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on April 1, 2009, I served a copy of Defendant National Construction Rentals' Answer to New Matter and Crossclaim of Additional Defendant Harrisburg Area YMCA via First Class United States mail, postage prepaid as follows: Justin Stefanon, Esquire 1847 Center Street Camp Hill, PA 17011 Attorney for Plaintiff Randall G. Gale, Esquire Thomas Thomas & Hafer PO Box 999 305 N. Front Street, 6th Floor Harrisburg, PA 17108-0999 Attorney for Defendant Harrisburg Area YMCA Melissa A. Montgomery, Esquire William J. Ferren & Associates 1500 Market Street, Suite 2920 29th Floor, West Tower Philadelphia, PA 19102 Attorney for Defendant Lobar Associates Christopher M. Reeser -ON OF THE PROT OMTARY 2009 APR --2 Pty 12: S 9 v " VIRGINIA HOSTETTER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 08-5855 VS. NATIONAL CONSTRUCTION CIVIL ACTION - LAW RENTALS t/d/b/a NATIONAL RENT-A-FENCE JURY TRIAL DEMANDED Defendants VS. HARRISBURG AREA YMCA and LOBAR ASSOCIATES, INC. Additional Defendants WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the appearance of the undersigned as counsel for Defendant, National Construction Rentals t/d/b/a National Rent-A-Fence, in the above-captioned case. MARSHALL D NEHEY WARNER COLE GGIN By: Christopher M. Reeser, Esquire I.D. 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 f ¦rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr? ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned as counsel for Defendant, National Construction Rentals t/d/b/a National Rent-A-Fence, in the above-captioned case. WILLIAM J. FERREN & ASSOCIATES By: Melissa A. Montgomery, Esquire Attorney for Defendant 1500 Market Street, Suite 2920 29th Floor, West Tower Philadelphia, PA 19102 FILE s-+i0i CIE OF THE 2009 NOV 23 PM 2= 0 G J 1,41 ¦ . VIRGINIA HOSTETTER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : No. 08-5855 VS. NATIONAL CONSTRUCTION CIVIL ACTION - LAW RENTALS t/d/b/a NATIONAL RENT-A-FENCE JURY TRIAL DEMANDED Defendants vs. HARRISBURG AREA YMCA and LOBAR ASSOCIATES, INC. Additional Defendants WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the appearance of the undersigned as counsel for Defendant, National Construction Rentals t/d/b/a National Rent-A-Fence, in the above-captioned case. MARSHALL DENNEHEY WARNER COLEMAN rIN By. - i! Christopher M. Reeser, Esquire I.D. 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned as counsel for Defendant, National Construction Rentals t/d/b/a National Rent-A-Fence, in the above-captioned case. WILLIAM J. FERREN & ASSOCIATES By: Melissa A. ntgomery, Esquire Attorney for Defendant 1500 Market Street, Suite 2920 29th Floor, West Tower Philadelphia, PA 19102 Fil.ED-i r°:rPCE T 11 i `? n%lrjTARY 7004 DEC 30 P 1: 19 Cu ?` MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Our File No. 19183-01407 Attorney for Defendant National Construction Rental t/d/b/a National Rent-A-Fence VIRGINIA HOSTETTER COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 08-5855 VS. NATIONAL CONSTRUCTION CIVIL ACTION - LAW RENTALS t/d/b/a NATIONAL RENT-A-FENCE JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I, Christopher M. Reeser, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on December 28, 2009, I served a copy of Defendant National Construction Rentals' Withdrawal of Appearance/Entry of Appearance via First Class United States mail, postage prepaid as follows: Justin Stefanon, Esquire 1847 Center Street Camp Hill, PA 17011 Attorney for Plaintiff Randall G. Gale, Esquire Thomas Thomas & Hafer PO Box 999 305 N. Front Street, 6th Floor Harrisburg, PA 17108-0999 Attorney for Defendant Harrisburg Area Melissa A. Montgomery, Esquire William J. Ferren & Associates 1500 Market Street, Suite 2920 29th Floor, West Tower Philadelphia, PA 19102 Attorney for Defendant Lobar Associates YMCA Christopher M. Reeser FILLt _'M 2009 DEC 30 C11 1: 1 Vist ?1' WILLIAM J. FERREN & ASSOCIATES BY: Glenn M. Campbell, Esquire Attorney ID#: 51059 10 Sentry Parkway Suite 301 Blue Bell, PA 19422 (215) 274-1745 Attorney for Defendants, Lobar Associates, Inc. and National Construction Rentals VIRGINIA M. HOSTETTER, COURT OF COMMON PLEAS : CUMBERLAND COUNTY V. LOBAR ASSOCIATES, INC., = r T, NATIONAL CONSTRUCTION NO.: 08 5855 CIVIL „ RENTALS and HARRISBURG AREA YMCA WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of Defendants, Lobar Associates, Inc., and National Construction Rentals, with regard to the above-captioned matter. WILLIAM J. FERREN & ASSOCIATES BY: M ISSA A. MONT ERY, ESQUIRE Attorney for Defendants ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, Lobar Associates, Inc., and National Construction Rentals, with regard to the above-captioned matter. WILLIAM J. FEN & ASSOCIATES BY: EtNN M. CAMPBELL, ESQUIRE Attorney for Defendants / . FILED-OFFi r OF THE PROTHONOTARY 2011 APR -5 PM 12. 19 CUMBERLAND COUNT`! PENNSYLVANIA ANTHONY STEFANON, ESQUIRE I.D.#25497 JUSTIN STEFANON, ESQUIRE I.D.#204580 1847 Center Street Camp Hill, PA 17011-1703 Attorney for Plaintiff VIRGINIA M. HOSTETTER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. NATIONAL CONSTRUCTION RENTALS t/d/b/a NATIONAL RENT-A-FENCE Defendants CIVIL ACTION - LAW NO. 08-5855 JURY TRIAL DEMANDED PRAECIPE FOR SETTLEMENT AND DISCONTINUANCE TO THE PROTHONOTARY: Mark the above-captioned matter settled and discontinued. RESPECTFtgeCY SUBM ANTHONY ST AN I.D.#25497 1847 Cente Street Camp Hil, PA 17011 (717) 761-6162 , ESQUIRE ' rJ? DATE: - LI" CERTIFICATE OF SERVICE The undersigned hereby certifies that, on the date below he served a true copy of PRAECIPE FOR SETTLEMENT AND DISCONTINUANCE, on the persons listed below, at the addresses set forth, by First Class United States Mail: Christopher M. Reeser, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for National Construction Rentals Randall G. Gale, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street, Sixth Floor P.O. Box 999 Harrisburg, PA 17108-0999 Attorney for Defendant Harrisburg Area YMCA Glenn M. Campbell, Esquire William J. Ferren & Associates 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 Attorney for Lobar Associates, Inc. RESPECTF Y SUB TED, By: I.D.#25497 1847 Cente reet Camp Hill, PA 17011 (717) 761-6162 N, ESQUIRE Date: OK- e(- ?,Olt