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HomeMy WebLinkAbout11-0019COHEN SEGLIAS PALLAS GREENHALL & FURN~AN )p.~.' ~'~ : ,Lr `~' ` '' :~ `_ "~``~ BY: JASON A. COPLEY ~~ 4 ~ 4~ ',. _ W ~~_~ ~ ; ~ ; KATHLEEN J. SELIGMAN Attorney I.D. Nos. 72774/94272 w"~~'`~'~'`~' tz'~°'~' ^C;i.€`s'~'Y United Plaza, 19`}' Floor ~ ~' ~ ~ ~ ~ ~ ~ ~ ~-`~ ~' ~ ~ 30 South 17~' Street Philadelphia, PA 19103 Attorneys for Plaintiff, (215) 564-1700 Herre Bros., Inc. HERRE BROS., INC., 4417 Valley Road Enola, PA 17025-1477, Plaintiff, v. BOSS INSULATION ROOFING, INC., 155 Bossert Boulevard West Milton, PA 17866, Defendant. COU1~T OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION DOCKET NO. Il " 1 NOTICE ~~~1 You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney'and by 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, GO TO OR TELEPHONE THE O~FICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION AIBOUT FINDING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, 'fiHIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENICIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. The Cumberland County Bar Association 32 South Bedford Strut Carlisle, PA 17013 (717) 249-3166 '! Pd . ~9~.ao ~~ly ~j~q~ ~L# ~3t/~ COHEN SEGLIAS PALLAS GREENHALL & FURMAN, P.C. BY: JASON A. COPLEY KATHLEEN J. SELIGMAN Attorney I.D. Nos. 72774/94272 United Plaza, 19`t' Floor 30 South 17`f' Street Philadelphia, PA 19103 Attorneys for Plaintiff, (215) 564-1700 Herre Bros., Inc. HERRE BROS., INC., COURT OF COMMON PLEAS 4417 Valley Road CUMBERLAND COUNTY, PA Enola, PA 17025-1477, . CIVIL ACTION Plaintiff, : v. BOSS INSULATION ROOFING, INC., DOCKET NO. 155 Bossert Boulevard / I _' West Milton, PA 17866, Defendant. COMPLAINT Plaintiff, Herre Bros., Inc. ("Herre") by and through its attorneys, Cohen, Seglias, Pallas, Greenhall & Furman, P.C., hereby files this Complaint against Defendant Boss Insulation Roofing, Inc. ("Boss" or "Defendant") and avers as follows: P- 1. Herre is a corporation organized under laws of the Commonwealth of Pennsylvania, with its principal place of business located at 4417 Valley Road 1, Enola, Pennsylvania 17025-1477, which is located Cumberland County, Pennsylvania. Herre is an HVAC contractor engaged in the business of commercial and public construction. 2. Upon information and belief, Boss is a corporation organized under the laws of the Commonwealth of Pennsylvania, with its principal place of business located at 155 Bossert Boulevard, West Milton, PA 17866. Boss is a roofing contractor. The Project 3. The Pennsylvania Department of General'Services ("DGS") is the "Owner" of the construction project known as "DGS Project 375-1.2 SCI Coal Township," which is located in Northumberland County, Pennsylvania (the "Project"). 4. Herre entered into a construction contract with DGS to perform HVAC services, including but not limited to the replacement of the hot/chilled water loop system, on the Project. S. On January 4, 2008, Herre entered into a subcontract with Boss, whereby Boss agreed to provide roofing materials and services (the "Subcontract"). A true and correct copy of the Subcontract is attached hereto as Exhibit "A." 6. The Subcontract incorporated the plans, specifications and drawings (the "Contract Documents") made part of Herre's Contract with DGS. 7. Pursuant to the terms and conditions of the Subcontract, Boss scope of work included performing its work in strict accordance with the Contract Documents. 8. Paragraph 21.1 of the Subcontract provides, in pertinent part: In the event the Subcontractor fails to comply, or becomes unable to comply, or with reasonable probability (~s determined solely by the Contractor) will become unable to comply with any provisions of this Subcontract; or in the event the Subcontractor fails at any time ... in any respect to prosecute the work with promptness and diligence; .. ,the Contractor may, without taking over the work, immediately and without notice to Subcontractor, furnish the necessary material and labor through itself qr others, to remedy the situation, all at the expense of the Subcontractor. See Exhibit "A." 2 9. After Boss ceased working on the Project, the DGS discovered that Boss failed to properly perform its scope of work on the Project in accordance with the Contract Documents. 10. Specifically, it was discovered that Boss failed to properly "wrap" the top of equipment rails on roof of the Project. 11. As a result of this defective work, DGS contends that there are numerous roof leaks on the Project. 12. DGS has demanded that Herre properly "wrap" the top of the equipment rails, pursuant to the Contract Documents, and repair any and all damage caused by the roof leaks on the Project (the "Corrective Work"). 13. Herre communicated DGS' demand that the Corrective Work be performed to Boss multiple times via telephone and email. 14. Boss refused to perform the Corrective Work. 15. On November 16, 2010, Herre wrote Boss declaring Boss to be in default under the Subcontract and demanding that Boss perform the Corrective Work, pursuant to the terms and conditions of the Subcontract. A true and correct copy of the November 16, 2010 Letter is attached hereto as Exhibit "B." 16. On November 23, 2010, counsel for Herre wrote Boss demanding that it advise counsel whether it intended to perform the Corrective Work by November 30, 2010, or Boss would be declared in default pursuant to Paragraph 21.1 of the Subcontract and Herre would seek indemnification from Boss for any and all damages incurred as result of having to self-perform the Corrective Work. A true and correct copy of the November 23, 2010 Letter is attached hereto as Exhibit "C." 3 17. Boss has failed and/or refused to respond to Herre and/or Counsel's letters and has failed and/or refused to perform the Corrective Work. 18. Having declared Boss to be in default of the Subcontract, Herre has begun to self- perform the Corrective Work. 19. Herre estimates that it will incur at least $310,000 in labor and material costs to perform the corrective work on the Project. 20. All conditions precedent have been performed or are excused or discharged. COUNT I -BREACH OF CONTRACT 21. The averments set forth in the foregoing paragraphs 1-20 are incorporated herein by reference as though set forth at length. 22. Boss materially breached the Subcontract by: A. Failing to properly and adequately perform its work on the Project pursuant to the Contract Documents; and B. Failing and/or refusing to satisfy its obligations, pursuant to the terms and conditions of the Subcontract, to perform and correct its deficient and defective work on the Project. 23. Boss has defaulted pursuant to the terms and conditions of the Subcontract. 24. As a direct and foreseeable result of Boss' material breach and default, Herre has been forced to perform the corrective work. 25. As a direct and proximate result of Boss' material breach and default, Herre will incur damages in excess of $310,000, representing labor and material costs to perform the corrective work. 4 26. Pursuant to the terms and conditions of the Subcontract, Herre is entitled to recover the following damages from Boss: (a) the direct cost Herre incurs to perform the Corrective Work; (b) interest at the prime interest rate plus 2% per annum; (c) attorneys' fees and costs of litigation; (d) profit; (e) general overhead; and (f) other costs and expenses as set forth in Article 21 of the Subcontract. WHEREFORE, Plaintiff, Herre Bros., Inc., demands judgment in its favor and against Defendant, Boss Insulation Roofing, Inc., in the amount in excess of $310,000, plus interest, costs and expenses, attorneys' fees, and all other relief that the Court deems just and appropriate. COUNT II - OUAIVTUMMERUIT/UNJUST ENRICHMENT 27. The averments set forth in the foregoing paragraphs 1-26 are incorporated herein by reference as though set forth at length to the extent that they support a recovery based on quantum meruit/unjust enrichment only. 28. Herre performed the construction activities for Boss is contractually responsible at the Project, for Boss' benefit, fully expecting compensation for the same. 29. Boss has failed and/or refused to perform the Corrective Work on the Project, for which it is responsible. 30. Boss has failed and/or refused to reimburse Herre for the costs it continues to incur as a result of Boss' failure and/or refusal to perform the Corrective Work on the Project. 31. Boss has been unjustly enriched by Here's performance of the Corrective Work on the Project. 32. Herre is entitled to the value of the construction activities it provided on the Project and for which Boss has failed and/ refused to perform. 5 33. The value of the construction activities Herre provided on the Project for which Boss has failed and refused to pay is in excess of $310,000.00. WHEREFORE, Plaintiff, Herre Bros., Inc., demands judgment in its favor and against Defendant, Boss Insulation Roofing, Inc., in the amount in excess of $310,000, plus interest, costs and expenses, attorneys' fees, and all other relief that the Court deems just and appropriate. Respectfully submitted, COHEN, SEGLIAS, PALLAS, GREENHALL & FURMAN, P.C. Dated: December ~, 2010 By; ~ S~ JASON A. C LEY, E QUIRE KATHLEEN J. SELIGMAN, ESQUIRE 30 South 17th Street, 19th Floor Philadelphia, PA 19103 (215) 564-1700 Attorneys for Plaintiff, Herre Bros., Inc. 6 VERIFICATION I, Richard A. McBride, being a duly authorized representative of Herre Bros,, Inc., have read the foregoing Complaint and verify that the factual statements contained therein are true and correct to the best of my knowledge, information, and belief. I understand that this Verification is made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities, which provides that I may be subject to criminal penalties if I make a written false statement that I do not believe to be true. _r. ,... / ~ ~ 7 -~ /._...... Dated: J..._._---~~__.~~--_._,~.~,. -,~ c~. Richard A. McBride President/CEO Herre Bros., Inc. #1157056-v1 06334-0024 u~~ .~j'1~ t` ,~ :~ I N C O R P-O R A T E D 4417 VALLEY R0. • ENOLA, PA 17025-1477 (717) 732-4454 • FAX (717) 732-8208 www.herrebros.com r-- Boss Insulation 8 Roofing, Inc E 155 Bossert Bivd. o West Milton, PA t 7868 0 R ~- 2423 JOB; 1.8,.Og70 RNL ~F,iPI~RSpN~ A~.c DOCUMENTS PuacHas ANU MERCnANU1SE ORDER MU5T REFER iQ if.15 NUMBER ~~'c. SALES EXEMPT ~ U ORDER pAtE 4,1 Herne Bros., Inc H CIO SCi COAL TOWFISHIP p SITE T 0 NpOR REQUESTED SNIP UATE 1 1 •~ LS SUPPLY LL MATERIAL 8 LABOR TC FLASH APPROXIMATELY 279 UNITS 'x11' ~ 8 SMALLER UNIT .ADDITIONAL LggOR g MAT RIAL TO PATCH NUMEROUS SM L HOLES. LABOR 8 MATERIAL TO I STALL 600 SQ. FT. OF NEW RO FING ALONQ W/ANOTHER 320' LO G SEC710N OF NEW ROOF . IN ALL 50 SMALL PIPE BOOTS NE OED FOR LIQHTNING PR TECTION. 2 1.00 LS WO K ON STEEL BRIDGING/CO 414 3 1.00 LS FLA H 10 RF-MTD EQUIP RAiU019 5 1 AO LS FLA3 12 PATE RAIL3 Q BLK/.030 8 1'00 LS FLAS 2 PATE RAILS-G BLK/.031 'lesse Acicne~..~w.._ s_ _ . 227,000.00 227,000.00 57,844.34 57,844.34 18,000.00 18,000.00 18,288.55 16,288.55 1,893.98 1,883.98 ---.- ..,,..,~,.~y "his order is our authorization to ship material or furnish above services in accordance with specifications. sY Lr-~1~OiIT1Yn AuTHna_._.--- i~Fnc,~~~~.,~~~ '"~'" r R --~. ~MFpRIA F;~ Al( OOCUMEF+r$ PURCHASE • • ANO MERCnANCISE ORDER I N C O R t''`O R A T E D MUST REFER TO 4417 VALLEY RD. • ENOLA, PA 170251477 THI$ NUMBER 555 (717) 732-4454 • FAX (717) 732-8208 Www.henebros.cOfTt SALES E7[EMPT 1 0 OAOER PATE ~,~ ~` Boss Insulation 8 Roofing, Inc ,__.. e 155 eossert Stvd. Herre Bras., inc o" West Milton, PA 1786a H CIO SCI COAE. TOWNSHIP o P SITE R T ~-- 2423 ° T!1\IS JOt~: ~'ct{/pIV FO E1 NT VENDOR REOUESrEO SM~P (MTE RNL ~' 7 1.00 LS INST. RQOF CRICKET-ADMIN/.432 ~~ 5,620.32 5,624.32 -' ~~ ~\ f r 1 i r Total 326,847.19 January 4, 2008 1:49 pm, Denise Burkhard PLEASE SEND f 2 SUBMITTA f S FOR APPROVAL. January 9, 2008 10:05 am, De ise Burkhard P.O. >:DITED THIS DATE. Confirming order do not du ~ ti q Cate. '~~.. ~,. Pl~ai. ~..~.......~_•_- This order is our authorization to ship material or furnish above services in accordance with specifications. a irunal~cn c„~., ,.- f ~ S , r ` suecoN•r>~cT #sssa This subcontract, made this ~i'" day of January, 2008 by and between Boss Insulation ~ Roofin hereinafter called the Subcontractor, and Herne Bros., [nc., hereinafter designated the Contractor. g, [nc., WITNESSETH~ That for and in consideration of the mutual promises and covenants herein contained th the Contractor agree as follows: e Subcontractor and Section A. The Subcontractor covenants, promises and a property of every description, and to diligently and full f;sees to furnish all material and personal Y Perform all work hereinafter described for the construction of SCI Coal Township's Replacement of the Hot/Chilled Water Loop System, hereinafter called the P located at 1 Kelley Drive, Coal Township, Pq 17866 for the use and benefit of the De hereinafter designated the Owner; in strict accordance with the Contract between the Contractor an rolect, to be entered into November 15, 2007 and hereb Parunent of Corrections, acknowledges that al! such documents have been made ava able fortheview,~inspection and copyin . Subconu~actor Section B, g The Subcontractor agrees to furnish all nccessa materials, machinery, tools, scaffolding, equipment, engineering, testin hoisting patterns, models, surveys, field measurement, sho drawin s ry management, supervision, labor, g ,all transportation, cartage, handling and conditions, and/or any other act or thing required to diligently and fullg 'protection of work and labor for winter work described in Exhibit "A", attached hereto and hereby made a y perform and complete those portions of the part of this Subcontract. Section C. The Contractor agrees to pay the Subcontractor for the full, and com lete of this Subcontract the sum of $Z27__~pp (wl>ich price is Crm and not subject to escalation) and which i all applicable federal, state and municipal taxes; and f P Performance thereof and in accordance with the terms and provisions of the Su~bcontr~acktop~ume~nts~d rnal Payments on account Section D, The Subcontractor expressly agrees that the Subcontract price includes (a) all work provided for in the drawings and specifications, together with all work reasonably inferable therefrom con i with the scope of the project described in the General Conditions); and unforeseen, including without limiting the generality of the foregoing, taxes, labor and materials, the cost of wh stmt to be borne solely by the Subcontractor. Ali loss or damage arising from an(bofall increase in cost foreseen or unusual obstructions, d~iculties or delays which may be encountered in the prosecution of same or throe h h is action of the elements shall be borne by the Subcontractor. y the work through unforeseen or g the Section E. General Provisions Article I. Definitions 1.1 The tern "Contract" as used herein refers to the Contract beriveen the Owner and the Contract for construction of the Project. 1.2 The term "Contract Documents" as used herein refers to the "Contract" between the Owner a or the Contractor, all plans, drawings, specifications, general conditions, supplemental general conditions, and special conditions, addenda, amendments, and/or instruments of like effect. 1.3 The term "Subcontract" as used herein refers to this Subcontract together with an exhibi attachments or addenda incorporated herewith and referred to herein. 1.4 The term "Subcontract Documents" as used herein refers jointly and/or severally to the afor ts, Contract, Contract Documents and Subcontract. esaid Article 2. Duties of the Subcontractor 2.1 The Subcontractor is bound to the Contractor by the same terms and conditions and to the fu 1 extent by which Contractor is bound to the Owner under the Contract. In the event of any inconsistency between the terms and conditions of the Contract (including the General Condition st and this Subcontract, the more restrictive provisions as applicable to the Subcontractor shall govern. s) 1of16 2.2 When requested to do so by the Contractor, Subcontractor agrees to submit a list of an y proposed sub-subcontractors, and Subcontractor shall not delegate, or further subcontract to others the performance of any of its obligations or work required or contemplated by this Subcontract without prior written consent of the Contractor, which shall not be unreasonably withheld. 2.3 If Subcontractor enters into agreements «~ith any sub-tier subcontractor, it shall require each sub- tler subcontractor to agree in writing to be bound by all provisions of the General Conditions applicable to its work. 2.4 Subcontractor hereby warrants that he has im•estigated and familiarized himself with all laws and codes applicable to its work; with the availability, cost and suitably of equipment, utilities, etc; with the prevailing wage scales, union benefits and workinglconditions, craft jurisdiction, existing labor agreements; all site conditions and restrictions, underground conditions, prevailing weather and climatological conditions; and any other factors which may a8'ect Subcontractor's work. 2.5 Subcontractor further a additional !mss that Contractor shall not be liable to Subcontractor on any claim for payment or additional time or any claim whatsoever if such claims directly or indirectly result from Subcontractor's failure to investigate and familiarize himself with the conditions under which this Subcontract is to be performed. 2.6 Subcontractor warrants it has visited the site and has become familiar with all conditions at the site, including without limitation, the conditions described in the General Conditions. 2.7 Generally, the specifications describe Work which cannot be indicated on the drawings and indicate types, qualities and methods of installation of the various materials and equipment required for the work. It is not intended to mention every item of Work in the specifications which can be adequately shown on the drawings nor to show on the drawings all items of Work described or required by the specifications even if they are of such nature that they could have been shown thereon. All materials or labor for Work which is shown on the drawings or is reasonably inferable therefrom as being necessary to produce a finished job shall be provided by the respective Subcontractors whether or not the Work is expressly covered in the specifications. Article 3. Inte_ er~ation 3.1 This Subcontract constitutes the entire agreement between the correspondence, and oral agreements between the Subcontractop artd Contractored any1 Ex~pt as otherwise provided for herein, no changes, amendments or modifications of the terms hereof shall be valid unless reduced to writing and signed by the parties hereto. Article 4. Pa ment 4.1 Pursuant to the Contract Documents, Owner is obligated to pay Contractor in the following manner: See contr a m n terms attached as Exhi it "E". 4.2 Subcontractor hereby acknowledges that the Contractor has fully disclosed the Owner's manner of payment pursuant to the Contractor Subcontractor Payment Act, 73 P.S. Section 501, et sig. 4.3 Provided Subcontractor's rate of progress and general Contractor and provided that the Subcontractor is in foil complianoce with each and every p ovision of the Subcontract Documents, the Contractor will make partial payments to the Subcontractor on the Contractor pay estimate form in an amount equal to 90% of the estimated value of work and materials incorporated into the Project (and of materials delivered to the Project site and suitably stored by the Subcontractor) and paid to Contractor by Owner, less the aggregate of previous payments, within fourteen (13) days of receipt thereof from the Owner or fourteen (14) days after receipt of Subcontractor's invoice, whichever is later. ~~~ PAYMENT FROM -~ OWNER TO THE CONTRACTOR [S A CONDITION PRECEDENT TO PAYMENT FROM THE CON'T'RACTOR TO THE SUBCONTRACTOR PURSUANT TO THIS ARTICLE. 4.5 ON PENNSYLVANIA PROJECTS, IN CONSIDERATION FOR CONTRACTOR'S AGREEMENT TO ENTER fNTO THE SUBCONTRACT, SUBCONTRACTOR HEREBY AGREES TO WAIVE ALL RIGHTS TO INTEREST ABOVE PENALTIES AND/OR ATTORNEY'S FEES PROVIDED BY THE OC NTR C ORRAND SUBCONTRACTOR PAYMENT ACT, 73 P.S. SECTION 501 ET SEQ 2of16 1.6 ON PENNSYLVANIA PROJECTS, SUBCONTRACTOR HEREBY AGREES THAT, IF THE OWNER REQUIRES CONTRACTOR TO WAIVE ANY OR ALL OF !TS RIGHTS UNDER THE CONTRACTOR ANp SUBCONTRACTOR PAYMENT ACT, 73 P.S. SECTION 501 ET ~.Q;., SUBCONTRACTOR HEREBY AGREES TO SIMILARLY WAIVE ITS RIGHTS UNDER THE ACT. 4.7 Subcontractor acknowledges that in the event payment is not made to Contractor for any reason including, but not limited to, default by the Owner, Subcontractor shall look exclusively to the Owner for payment of any and all funds due under this Subcontract. Subcontractor further agrees that delay in payment for non-payment by the Owner does not create an se Contractor to pay regardless of the extent of the deia Y paste °bl'gation of payment from the Owner if the Owner is delinquent in y. Subcontractor has the right to pursue 4.8 Within ten (10) days of execution, the Subcontractor shall submit to the CanUactor a complete and accurate schedule of values of the various parts of its work. This schedule, when approved by the Contractor, shalt be used as the basis for making payments. 4.9 On a monthly basis, the Subcontractor shall submit a request for partial the schedule of values and representing a true and accurate estimate of the work completed during the immediately precedin payment consistent with provide an accurate inventory f materials suitably stored at the Job sit Each appiicat ontor shall accompanied by such invoices, vouchers, waivers, certifications and affidavits as may be requir d by the Owner and/or Contractor. The Subcontractor agress that any application for payment not in compliance may be held over for processing at the beginning of the a correction of such application, with or without notice to Subcontractor. P Y Penod following 4.10 No partial payment shall constitute acceptance by the Contractor of the work or material for which the partial payment is made; nor shall an Y ght to require fulfillment of all the terms of this Subcontract 1e Contractor shalt p omptly advise the Subcontractor in writing if the Owner or Contractor disapproves of or is withholding all or any of a Request for Payment, including change orders. Even if Subcontractor disagrees with Contractor's disapproval, Subcontractor shall continue to perform al! work under this Subcontract including that in dispute. The Subcontractor shall also take all reasonable steps necessary to ensure that there will be no work stoppage or delay on account of such disapproval. Both parties agree to endeavor to promptly resolve such disputes on an ongoing basis. 4.11 The Subcontractor hereby agrees to reimburse the Contractor in the event of overpayment, together with any costs and expenses including administrative costs and attorney's fees, which the Contractor may incur in securing recovery thereof. 4.12 Contractor expressly reserves the right to issue joint checks to Subcontractor and its materialman, suppliers or subcontractors, or any of Subcontractor's creditors havin claims against the work, for any payments that are, or ma g Potential lien rights and/or to Subcontractor under this agreement. Y become, due and owing by Contractor 4.13 The Contractor may deduct from amounts due or to become due to the Subcontractor on this Project any sum due or to become due to Contractor from the Subcontractor whether or not said sums are in arty way related to this Subcontract or Project. 4.14 to the event Subcontractor is in default of or breaches or fails to comply with any provision of the Subcontract; or in the event that any person asserts, or threatens to assert, any lien or claim, against the Project, the Owner, the Contractor or any Surety arising from Subcontractor's performance of this Subcontract, the Contractor may, at its option, withhold out of an due or to become due to the Subcontractor a sum Y Payments P Y Protect and indemnify the Contractor and the Owner from a111oss, damage and/or expense, ncludin attorn ey's fees and litigation costs, until the condition requiring such measure has been remedied by the Subcontractor to the satisfaction of the Contractor, If the Contractor is compelled to expend monies in defending, discharging or otherwise disposing of any claim or lien in excess of retained or withheld sums, the Subcontractor shall, upon demand, reimburse the Contractor for the excess amount so expended, including reasonable attorney's fees and costs incurred by Contractor incident to such defense and/or incidental to Contractor's collection From Subcontractor of such excess. 4.15 Notwithstanding anything to the con as to time, Contractor shall not b ~o Ib g tedrn o m~ s S°bcontract, and without any limitation Subcontract: a) when such payment will leave a balance wh ch is less then theorettained percentage 3of16 plus an amount adequate to satisfy all obligations of the Subcontractor for labor, materials, tools, etc. furnished or to be furnished by Subcontractor in the performance of its work; b) when Subcontractor is or with reasonable probability (as determined by the Contract ma unable to comply with or completely perform this Subcontract; c) whener•er the Contractor, cin its sole discretion, shall determine that the Project is being or is in danger of being delayed by the Subcontractor, d) pending satisfactory correction, replacement and/or restoration of deficient work, material, or supplies, or of any work rejected if not conforming with this Subcontract or the Subcontract Documents. Article S, Fina1_ pint S.1 Ftnal payment will be made within thirty (30) days after the Subcontractor's work has completed to the satisfaction of the Owner and the Contractor, and the Contractor has received from the Owner written acceptance thereof together with payment in full for this portion of the work. Final payment is subject to Contractor's determination that all the requirements of the Subcontract have been met and discharged by Subcontractor. Pq TO THE CONTRACTOR IS A CONDITION PRECEDENT Tp pq~~. FROM ~R CONTRACTOR TO THE SUBCONTRACTOR PURSUANT TO THIS ARTICLE. 5.2 No final payment shall constitute acceptance by the Contractor of the work or material for which the Tina! payment is made, nor a waiver of any right to require fulfillment of all the terms of this Subcontract. The Subcontractor hereby agrees to reimburse the Contractor in the event of overpayment, together with any costs and expenses, including administrative costs and attorney's fees, the Contractor may incur in securing recovery thereof. Article 6. Financial Condition of ubcontractnr 6.1 [f at any time Contractor in its sole discretion shall determine that the Subcontractor's financial condition has become impaired or unsatisfactory, Subcontractor shall furnish additional security satisfactory to the Contractor within three (3) days after written demand by Contractor. 6.2 The Contractor, Owner's representatives and azchitect at all times shall have free access to the office, shops and yards of the Subcontractor to verify arty information about the work to be performed by the Subcontractor. Article 7. Assienment of Proceeds 7,1 The Subcontractor will make no asst written consent of the Contractor, wh~i h cotnsent s~~nods~Of~s~~~bi tmiihheidou oweveor the Contractor shall not be obligated to any assignee of the Subcontractor on account of payments at any time made in good faith to the assignor and shall not be liable to any assignee of the Subcontractor for any amount in excess of the net sums owing Subcontractor hereunder. 7.2 By making an assignment of the proceeds hereof, the Subcontractor waives any claims against Contractor resulting from Contractor's continued payment to assignees or former assignees, not withstanding notification to Contractor of termination of any such assignment. 7 3 By making an assignment of the proceeds hereof, Subcontractor agrees to assume full liability for the conveyance to assignees of any payments mistakeNy, inadvertently, or otherwise made or addressed to Subcontractor and Subcontractor agrees to defend and hold harmless the Contractor from claim or action of any assignee related to this Subcontract. Article 8. Performance Bond a_nd t a-,.,r...,a .._._ • . 8.1 a... ,~,a~enar is net The Contractor shall have the right to require any Subcontractor to furnish bonds covering the faithful performance of the Contract and the payment of all obligations arising thereunder as welt as lien discharge bonds pursuant to Waiver of Liens and Release Article detailed below. The failure of the Subcontractor to furnish a bond within seven (7) days after having been given notice of such requirements by Contractor shall constitute sufficient cause for termination of this Contract without notice. Article 9. Unit Price Basis 9. l~he terms of this Subcontract provide for the payment of work performed on a unit rice the unit of measurement for payment shall be one for work certified. Verification ofpveightssor 4of16 quantities will be Curnished at the time of delivery. [n the event the actual quantity per{•o~ed, Contactor shalt have the right to measure the q ant tylof ~ o k in place and make Fnal settlement on the basis of such measurement. Unit prices shall be the same for both additions and deductions. Article 10. Eauiament and Facilities l0.1 The Subcontractor shall provide at its own ex equipment; plant; utilities; sen~•ices' storage sheds;p ro ksh pste oftiCe~l ~rst~a d orse,nergency treatment facilities and any other facility he may deem necessary for the com lete rfo all work required under this Subcontract, and shall remove an P ~ rmance of clean and restore the site and premises at the completion of the w rkh installations and thoroughly 10.2 If the Subcontractor has occasion to utilize any of the facilities of the Contractor, when and if available, Subcontractor shall pay an equitable portion of the cost thereof. The Contractor shall bear no responsibility for any toss or damage from any cause whatsoever arising from Subcontractor's use of such facilities. Article 11. Submittals 11.1 The Subcontractor a grees to submit, in sufficient number, aU shop or fabrication drawings, design and performance data, test, samples. operating and/or maintenance manuals for use in the Performance of this Subcontract as directed by the Contractor within thi execution of the Subcontract uNess directed to do so within a lesser ~ (30} days after 11.2 Approval of any of the foregoing by the Contractor, the Owner or the Ownerhs authorized a eat shall under no circumstances alter the requirements of the Subcontract Documents or constitute acceptance by the Contractor of any method, material or equipment not acceptable to the Owner or the Owner's authorized agent. 11.3 The Subcontractor agrees that the cost of any of the foregoing required hereunder is included in the amount of this Subcontract. Article 12, Mat ri s Furnished by Contractor 12.1 [t rs hereby agreed by Subcontractor, if furnishing labor only for the finishing, installation or erection of materials furnished by Contractor, that the following costs, without restriction, aze to be fully recovered by Contractor from Subcontractor; a} the full cost of material required to replace due to damage by the Subcontractor; b) the full cost of removing rejected materials when not properly installed or supplied by Subcontractor; and ~) the full cost of altering any work of Subcontractor not accepted by the Owner's authorized agent. Article 13. Cuttin Patchin and Blockin 13.1 The Subcontractor shall obtain Contractor's approval for and shall do an cuttin , blocking necessary to complete this work hereunder, and such work shall ~ g patching and same standards and shall match any work performed pursuant to the Contract Docue eats ~ to the Article 14, Maint-- e"~~of Site 14.1 Subcontractor agrees to keep the premises and all finished work clean at all times and to remove from the site all scrap and waste materials resulting from work under the Subcontract within twenty-four (24) hours after receipt by him from Contractor of written notice to do so. 14.2 The Subcontractor shall properly cover and protect the work of others from damage due to the Pe~•ormance of the work required under this Subcontract, and Subcontractor shall promptly clean, restore, or pay for the replacement of any such work damaged or soiled in the performance of its own work. 14.3 Subcontractor further agrees to furnish protection at all times for its own work and all materials stored for use under this Subcontract and to bear and be solely liable for all loss and/or damage of any kind to or in connection with said work and materials at any time prior to the final completion and acceptance thereof, unless said loss or damage is caused solely by the negligence of the Contractor and is subject to recovery under such applicable insurance policies as may be in effect. 1 ~ 4 If the Subcontractor Fails to promptly perform such cleaning, protection and/or repair as directed Sof1G by the Contractor, the Contractor shall have the right to proceed with such cleaning, protection and/or repair, and Subcontractor, on demand therefor, shall repay to the Contractor the actual cost of such work plus a reasonable percentage to cover Contractor's superc•ision, insurance, tax and overhead. Article I5. Payment to . uanliers and ub suhcnnrrarrn.~ I5. I Prior to performing any Work concerning, relating to, or under this Subcontract and whenever so requested by Contractor, Subcontractor shall disclose, in writing, to Contractor, the names, addresses, telephone numbers, a description of the labor and/or material to be provided, the contract amount, payments made and balances due for all sub-subcontractors, materials suppliers and/or other persons and entities that have or will, supply or transport goods, materials, equipment, machinery, fixtures, services or labor under any agreement with Subcontractor for the Subcontractor's Work under this agreement. In addition, the Subcontractor ma performing any Work concemi y, prior to provide a copy of all such agreeme is to ContractoraeThte disclosures be 1~~ ~S ontractor to a condition precedent to Subcontractor performing any work at the Pro~ct, butyin n ~en~shall the Contractor's failure to enforce this requirement be deemed to be a waiver of Contractor's right to so demand disclosure by Subcontractor. 15.2 Subcontractor shall pay for all materials and supplies furnished and for ail work, labor and services performed as required under this Subcontract, shall execute partial and final releases of liens upon demand by the Contractor, and shall indemnify Contractor and Owner against and save them and the premises harmless from any and all claims, demands, liens or suits, for all such material and supplies purchased and for all work, labor and services performed by others, including reimbursement of attorney's fees and arty other costs of defense incurred. 15.3 The Subcontractor agrees and covenants that money received for the performance of this Subcontract shall be used solely for the benefit of persons and firms supplying labor, materials, supplies, tools, machines, equipment, plant or services exclusively for this Project in connection with this Subcontract; that money paid to the Subcontractor pursuant to this Subcontract shall immediately become and constitute a trust fund for the benefit of said persons and firms, and shall not in any instance be diverted by Subcontractor to any other purpose until all obligations and claims arising hereunder have been fully discharged. Article 16, Warranties 16.1 The Subcontractor warrants and guarantees the work and materials which he performs or furnishes under this Subcontract and agrees to make good, at its own expense, any defect in materials or workmanship which may occur or develop prior to Contractor's release from responsibility to the Owner. The Subcontractor further agrees to assume, as a direct obligation to the Contractor and/or the Owner, any guarantees or warranties which would otherwise be the responsibility of the Contractor or other subcontractors, when such gtarantees or warranties have been cancelled as a result of the Subcontractor's operations in performance of this Subcontract. 16.2 Without limitation of the foregoing or other obligations of the Subcontractor provided for in dtc Subcontract Documents, immediately upon the Contractor's demand, the Subcontractor, at its own expense, shall repair, replace, restore or rebuild, at the Contractor's option, any work in which defects in materials or workmanship may appear, or which is otherwise not in conformance with the other warranties of the Subcontractor hereunder, or to which damage may occur because of such defects or lack of conformance, within one (1) year or such longer period as required by the Specifications from the date of the Owner's and architect's final acceptance of the project. [f the Subcontractor fails to comply, the Contractor may correct such defect or lack of conformance, as the case may be, and the Subcontractor shall immediately reimburse the Contractor thereof. Article 17. Time of Performance 17.1 Time is of the essence and the Subcontractor agrees to keep himself thoroughly informed as to the overall progress of the Project; to commence and to prosecute the work undertaken hereunder in a prompt and diligent manner whenever such work, or any part of it, becomes available, or at such time or times as the Contractor may direct, so as to promote the genera! progress of the entire Project; and Subcontractor shall not by delay or otherwise interfere tivith or hinder the work or progress of the Contractor or any other subcontractor. 6of16 17,2 Upon Contractor's request, Subcontract shall furnish such evidence as the Contractor may require relating to Subcontractor's ability to fully perform this Subcontract. in the manner and within the time established as herein provided and cash flow expenditures for labor for its work (which shall include the estimated payroll for each of the trades it will employ by subcontract). 17.3 The Contractor exclusively shall control scheduling and coordination of the work, including the periodic updating and re-sequencing thereof, if any and the Subcontractor shall comply therewith. The Contractor shall have the right to schedule other work at the same time and in the same areas as the Subcontractor's work and Contractor rnay, at its sole discretion, schedule work during a time of winter conditions. The determination of when winter conditions exist shall rest exclusively with the Contractor. 17.4 The Subcontractor agrees to notify the Contractor of its objection to, or inability to comply with, any directive, notification, order, schedule or revisions thereof dealing with the time or times of its performance hereof, and to do so within three (3) days of Contractor's issuance thereof. 17.5 Specific requirements as to the time of performance shalt take precedence over the more general requirements of this article. 17.6 [n the event of any failure of Subcontractor to complete its work within the required tune, the Subcontractor hereby agrees to reimburse the Contractor for arty and all actual and/or liquidated damages that may be assessed against the Contractor by the Owner, which are directly or indirectly attributable to work caused by the Subcontractor's failure to comply fully with the foregoing provision, 17.7 Subcontractor also agrees to pay to the Contractor such damages as the Contractor may sustain by reason of any delay, directly or indirectly, attributable to or caused by the Subcontractor, including, but not limited to, recovery of Contractor's overhead and expense related to the managing and supervising of the prime Contract work. 17.8 At the request of the Contractor, the Subcontractor shall perform certain parts of the work before other parts, add extra manpower, or order overtime labor in order to comply with the project schedule, all without an increase in the Subcontract price, unless otherwise specifically provided in the General Conditions. 17,9 If in order to expedite the final completion of the Work Contractor requests Subcontractor to work overtime at a time when Subcontractor is not in default in any of the provisions of this contract, Subcontractor agrees to work said overtime and it is understood that Contractor shall pay Subcontractor therefore only the Subcontractor's extra labor costs over the rate for regular time during the period of such overtime, including additional insurance and taxes incurred by Subcontractor with respect thereto. Time slips covering said overtime must be submitted to Contractor's authorized agent for checking and approval. No commissions, fees, overhead, or profit is to be charged by or allowed to Subcontractor for or on account of said overtime. However, if Subcontractor shall at any time be behind in the work herein contemplated, or if in the opinion of the Contractor, Subcontractor is delaying the progress of the work necessary to complete the Project, then and in either such event, if requested by Contractor, Subcontractor shall cause to be performed overtime work as may be necessary to keep abreast with the general progress of the work at the Project, and in either such event the cost and expense of such overtime shall be borne entirely by Subcontractor, 17.10 If the Subcontractor shall be delayed in the prosecution or completion of the Subcontract Work by the act, neglect or default of the Contractor, the Architect, the Owner, or any other subcontractor employed by the Contractor upon the project, or by any damage caused by fire or other casualty for which the Subcontractor is not responsible, or by general strikes or lockouts caused by acts of employees, then the time fixed by the Contractor for the completion of the Subcontract Work shall be extended for such period of time as shall be determined and fixed by the Architect as the time lost by reason of any or all of the causes aforesaid. This shall be Subcontractor's sole and exclusive remedy for such delay and in no event shall Contractor be responsible for any increased costs, charges, expenses or damage of any kind resulting from any such delays. No allowance of an extension of time for performance of this Subcontract will be granted, unless a claim therefor is presented to the Contractor in writing and within forty-eight (48) hours of the occurrence of the cause thereof, and then only if the Contractor agrees to such an extension of time in its sole discretion. 7of16 Article 18. Chances in Work 18.1 Contractor may at any time and without invalidating this Subcontract, by written order and tivithout notice to surety, make changes in the work herein contracted for consisting of additions, deletions or other revisions, and the Subcontractor shall proceed with the work as directed. If said changes cause an increase or decrease in the cost of performance or in the time required for performance an equitable adjustment shall be made when a request is timely made by Subcontractor, but only upon the written approval of Contractor. Nothing herein shall excuse the Subcontractor from proceeding with the prosecution of the work as changed. 18.2 The Subcontract Price shall be adjusted as may be agreed upon bct<vcen the parties before any work is changed, In pricing changes in the work, Subcontractor shall use rates approved by ~ Contractor in accordance with the following provision. Within ten (10) days of this Subcontract being signed, Subcontractor shall provide Contractor a list of proposed labor rates for additional work that may arise on the Project. The rates shall identify the followin required fringe benefits; (3) required taxes; (4) required insurances and (5) (other required (abort) mark-ups. Contractor shall have the exclusive right to reject Subcontractor's labor rates and establish a reasonable labor rate that Subcontractor shall use to price changed work. The overhead and profit for changed work, tmless otherwise limited by the agreement between Owner and Contractor, shall be limited to: (1) a ten percent (10%) mark-up on the Approved Labor Rates for overhead and profit: (2) a five percent (5%) mark-up on actual material and equipment costs for overhead and profit; and (3) if such work requires that Subcontractor use a subcontractor, Subcontractor shall limit its subcontractor as set-forth above and Subcontractor shall be limited to a mark-up of its subcontractor's total of five percent {5%) for Subcontractor's overhead and profit. All pricing submitted by Subcontractor to Contractor for changed work shall separately list the labor, material and equipment costs as required herein. If changed work results in a deletion of any of the Subcontractor's work then the fair and reasonable value of the deleted work, as determined by Contractor, Architect or Owner, plus fiRcen percent (15%) for overhead and profit, shall be deducted from the Subcontract Price. 18.3 (f Contractor and Subcontractor are unable to agree on the price for the changed work, Contractor shall have the right to order Subcontractor to proceed with the changed work on a time and material basis. When changed work, other than overtime ordered by Contractor, is performed on a time and material basis, unless otherwise limited by the agreement between Owner and Contractor, Subcontractor shall receive: (1) the actual cost of labor including a~licable insurance and payroll taxes, based upon the Approved Labor Rates, plus ten percent (10%) for overhead and profit, and (2) the actual cost of material and equipment, plus five percent (S%) for overhead and profit. Unless otherwise provided for in this Subcontract, the foregoing labor and material costs shall be limited to the following; cost of materials (including sales tax and cost of delivery), cost of labor (including social security, old age, and unemployment insurance and fringe benefits required by agreement or custom); workers or workmen's compensation insurance; bond premiums; rental value of equipment and machinery; and the additional costs of field supervision, with all other costs and expenses deemed to be covered by the allocation for overhead allowed herein. In performing changed work on a time and material basis, if such work requires that Subcontractor use a subcontractor, Subcontractor shall limit its subcontractor as set-forth above and Subcontractor shall be limited to a mark-up of its subcontractor's cola! of five percent (5%) for Subcontractor's overhead and profit. Whenever changed work is performed on a time and material basis, Contractor shall have the right to audit Subcontractor's books, records, documents and other evidence bearing on the costs and expenses of the Subcontractor for such changed work. 18.4 No extension to Subcontractor's time of performance as a result of changed work shall be allowed under this Subcontract unless authorized by Contractor in writing. The value of the changed work requested by Subcontractor shall include all costs for delay and disruption to Subcontractor's work. Subcontractor shall not be entitled to any additional compensation for delay and disruption caused by the changed work unless such costs are requested and approved by the Owner. In no event, shalt Subcontractor be entitled to compensation for the collective impact of changed ~ti•ork. Article 19. Claims for Extra Work andlor Addirinnat r~ moensation 19.1 The Subcontractor agrees to make any claims to the Contractor for damages or additional compensation based on any alleged extra or additional work, including claims pursuant to Article 18 herein, within three (3) days of being given notice of a change or the discovery of the condition 8of16 giving rise to request for additional compensation or damages or within suA`icient tune (48 hours prior to the amount of time set forth in the notice requirement in the Contract bet~~•een Contractor and Owner for like claims) to permit Contractor to advise the Owner in the manner provided in the Contract Documents for like claims, whichc~~er is shorter. The Contractor will not be liable to the Subcontractor on account of any claim not timely or properly presented or until it is allowed by the Owner. Payment by Owner to Contractor (and receipt of funds by Contractor) for claims by Subcontractor is a condition precedent to payment by Contractor to Subcontractor for such claims and this paragraph shall not serve contradict the work required by this Subcontract in Sections A, B and D above. 1 ~• 2 The Subcontractor agrees that any liability of the Contractor to the Subcontractor on any claim of any sort by the Subcontractor against Contractor arising in whole or in part out of any act, omission, default, order, directive, decision or change by the Owner, or which could be the subject of a claim by the Contractor against the Owner, shall be liquidated and limited to whatever the Contractor actually receives from the Owner, if anything, as a result of the presentation of a claim based thereon to the Owner, and the Subcontractor shall have no other or further claims whatsoever against the Contractor based thereon or in any way related thereto. Any claim prosecuted hereunder shall be subject to the sole direction and control of the Contractor, 19.3 If the Subcontractor encounters any condition which forms the basis of a claim for extra compensation or time, or any other type of claim, it shall be its duty to give written notice to the Contractor prior to commencing any work involving said condition so the Contractor may inspect said condition and take such steps as Contractor deems necessary. In the absence of such notice to the Contractor, Subcontractor shall be fully liable for any and all expense, loss or damage resulting from said condition. It is also agreed that Subcontractor shall not be entitled to any additional payment or compensation under this Subcontract without the express written approval or Contractor. No officer, employee or agent of Contractor is authorized to direct any Extra Work by oral order except minor changes in the work not involving extra cost or time. 19.4 All excavation work the Subcontractor is required to perform pursuant to this Subcontract is unclassified and Subcontractor agrees that it has included in its price all types of earth and soil, which shall include, but not be limited to, any pebbles, boulders and bedrock, municipal waste, rubbish, and garbage and ail types of debris of the construction industry such as wood, stone, concrete, plaster, brick, steel, pipe, wire, paper and glass, but does not include unforeseen concrete foundations, walls or slabs. All materials which are unclassified shall be removed to the required widths and depths to accommodate the work at no additional cost to Contractor. Article 20. Dis utes 20.1 In the event of any dispute between the Contractor and the Owner which involves the work required to be performed by Subcontractor under this Subcontract, or in the event of any dispute between Contractor and Subcontractor which involves a claim against the Owner for either additional compensation and/or an extension of time under the Contract Documents, Subcontractor agrees to be bound to Contractor and Contractor agrees to be bound to Subcontractor to the same extent that Contractor is bound to the Owner by the terms of the Contract Documents and by all decisions or findings made thereunder by the persons so authorized in the Contract Documents, or by an administrative agency or court of competent jurisdiction, whether or not Subcontractor is a party to the proceedings before said person, agency or court. 20.2 If any dispute or claim is prosecuted or defended by the Contractor, and Subcontractor is not directly a party or litigant, Subcontractor agrees to cooperate fully with Contractor and shall pay or reimburse Contractor for all expenses and costs, including reasonable attorney's fees, incurred in connection therewith to the extent of the Subcontractor's interest in such claim or dispute. 20.3 It is expressly understood and agreed in connection with the determination of such claim or disputes that Contractor shall never be liable to Subcontractor to any greater extent than Owner is liable to Contractor. 20.4 In the event of any claim or dispute between Contractor and Subcontractor, it is further specifically agreed by the parties hereto that no claim shall interfere with the performance «~ork required to be performed under this Subcontract. 9of16 Article 21. Default Z 1. t In the event the Subcontractor fails to comply, or becomes unable to comply, or with reasonable probability (as determined solely by Contractor) w•il! become unable to comply, with any of the provisions of this Subcontract; or in the event Subcontractor fails at any time to supply a sufficient number of properly skilled workmen with suffcient materials, equipment or plant of proper quality or fails in any respect to prosecute the work with promptness and diligence; or causes by any action or omission a stoppage of or delay in the work of the Contractor or other subcontractor of Contractor; or in the event Subcontractor abandons its work or any part thereof; and such failure, inability or deficiency (as determined solely by Contractor) is not corrected within one day after written demand by the Contractor to the Subcontractor, the Contractor may, in addition to and without prejudice to any other right or remedy, take over and complete the performance of the Subcontract, at the expense of the Subcontractor; or the Contractor may, without taking over the work, immediately and without notice to Subcontractor, furnish the necessary materials and labor through itself or others, to remedy the situation, all at the expense of the Subcontractor. 21.2 The parties hereto further agree that any of the following shall, at the option of the Contractor, constitute inability to comply with the provisions of this Subcontract for purposes of this article: a) the filing of a petition in bankruptcy or a petition for the appointment of a receiver by or against the Subcontractor, b) the insolvency of the Subcontractor or its inability to meet its debts as they mature; c) the establishment of a receivership or any committee of creditors involving Subcontractor's business or assets, or the making of an assignment for the benefit of Subcontractor's creditors; or d) the failure or refusal of Subcontractor to respond to any written order or notice duly issued by the Contractor. 21.3 Subcontractor hereby waives any and all defenses, claims or causes of action against Contractor based in whole or in part on the contention that Subcontractor would have been able to comply with the Subcontract. 21.4 [t is further agreed that the Contractor shall have access to and may take possession of the Subcontractor's material, tools, and equipment which may be located at the site of the work or en route to the site that may be necessary to prosecute the work hereunder to completion, all without liability on the part of the Contractor for any damage or other injury to such materials, tools and equipment. 21.5 Upon any action by the Contractor pursuant to this article, the Subcontractor shall not be entitled to further payment on this Subcontract until the work has been completed and accepted by the Owner and payment therefore has been received by the Contractor from the Owner. 21.6 [f the expense incurred by the Contractor exceeds the unpaid balance due, the Subcontractor agrees to promptly pay the difference to the Contractor together with interest thereon at the rate of the prime rate plus 2% per annum until paid, and the Contractor shall have a lien upon al[ material, tools, and equipment taken possession of to secure the payment thereof. 21.7 With respect to expenses incurred by the Contractor pursuant to this article, it is hereby agreed that the costs and expenses chargeable to the Subcontractor as herein before provided shall include, without restriction, the cost of materials, labor, subcontracts, purchase orders, transportation, equipment and expense thereon, supplies, services, insurance, taxes, appliances, tools, utilities, power used or consumed, supervision, administration, job overhead, travel, attorney's fees, legal and accounting fees and expenses, Contractor's general overhead as allocated to the work and other costs and expenses incurred or sustained by the Contractor, plus ten percent (10%) profit on the actual cost of the work performed as well as on the amount of claims paid by the Contractor for Subcontractor or for which it deems itself liable. 21.8 In no instance will any action whatsoever taken by the Contractor pursuant to this Subcontract relieve or mitigate Subcontractor's full and absolute responsibility for any and a!I of the Subcontractor's obligations under this Subcontract. 21.9 In the event the employment of the Subcontractor is terminated by the Contractor for cause under this Article and it is subsequently determined by a court of competent jurisdiction that such termination Fvas without cause, such termination shalt thereupon be deemed a Termination for Convenience under Article 22 and the provisions of Section ZZ, l shall apply. Article 22. Termination for Convenience 22.1 The Contractor may, at any time, terminate this Subcontract in whole or in Conuactor's convenience and without cause. Termination by the Contractor under thr~s paragraph 10 of 16 shall be by notice of termination delivered to the Subcontractor specifying the extent of termination and the effective date of such termination, the Subcontractor shall recover as its sole remedy payment for work properly performed in connection with the terminated portion of the work prior to the effective date of termination and for items properly and timely fabricated off the Project site, deli~~ered and stored in accordance with the Contractor's instructions. The Subcontractor hereby waives and forfeits all other claims for payment and damage, including, «~thout limitation, anticipated profits. Article 23. Coord____ ~ _~~an 23.1 The Subcontractor agrees to perform the work called for in this Subcontract in such a manner that he will not injwe or damage any other work performed by the Contractor or any other subcontractor. 23.2 The Subcontractor further agrees to cooperate with the Contractor and other subcontractors whose work might interfere with the Subcontractor's work and to prepaze sketches ar~d drawings as directed, and/or to participate in the preparation of coordinated drawings in areas of congestion, specifically noting and advising the Contractor of any such interference. 23.3 The Subcontractor agrees to have a representative present at regulazly scheduled jobsite coordination meetings. This representative must be a principal of the company or designated project manager who has the authority to comply with all scheduling and other requests of the General Contractor. It is further agreed that the Subcontractor's representative shall appear promptly at the designated meeting time. If the Subcontractor fails to attend these meetings on a timely basis, the Contractor shall have the right to declare the Subcontractor in default of this Subcontract, and seek all Legal remedies in accordance with the terms of this Subcontract. Article 24. Indemnification 24.1 The Subcontractor agrees for itself and its inswes to indemnify, defend and hold harmless Contractor, Architect, Owner and their pazent subsidiary and afTliated companies and their respective agents, officers, directors, employees and assigns from and against any and all IiabiGties, claims, losses, damages, penalties, costs or expenses (including but not limited to court costs and reasonable attorney's fees) for damage to property of whatsoever kind or natwe or injury to persons (including, but not limited to death) arising out of or due to or claimed to have arisen out of or been due to design, manufacture, delivery, installation, use, maintenance, repair, or operation of any part of all of the goods, material, and equipment, if any, supplied by Subcontractor, or the performance of the work by Subcontractor, its agents, independent contractors, Sub-Subcontractors, vendors, and each of their agents, officers, or employers, or any other of their operation, no matter by whom performed for or on behalf of Subcontractor. Subcontractor's obligations under this indemnity shall not extend to property damage or personal injury caused by the sole negligence of the indemnitee or its agents, officers, directors, employees, and assigns. 24.2 In the event and to the extent that a claim is made by an employee of Subcontractor against an indemnitee hereunder, the intent of this Article is that Subcontractor shall and it hereby agrees to indemnify Owner, Engineer, Contractor and their parent, subsidiary, or affiliated companies and each of their agents, officers, directors, employees and assigns to the same extent as if the claim was made by a non~mployce of Subcontractor. Accordingly, in addition to the above provisions, and in order to render the parties' intent and this indemnity agreement fully enforceable, Subcontractor, in an indemnification claim hereunder, hereby expressly and without reservation waives any defense or immunity it may have under any applicable Worker's Compensation Laws or any other statute or judicial decision disallowing or limiting such indemnification and consents to a cause of action for indemnity. Said waiver and consent to indemnification is made irrespective of and specifically waiving any defense or immunity under any statute or judicial decision disallowing ar limiting such indemnification. 24.3 The Subcontractor shall bear any expense of an indemnitee because of any claim or other matter indemnified against hereunder, including reasonable attorney's fees and court costs in the defense of, or preparing for the defense against, any such claim, even if such claim or any lawsuit arising therefrom is groundless, false or fraudulent. If any such claim has not been settled or discharged when the Work is finished, final settlement behveen the Contractor and the Subcontractor and final payment of the Subcontract Price and the acceptance of the Work shall be deferred until any I 1 of 16 such claim is paid or settled or the Subcontractor provides a bond, acceptable to the Contractor, in its sole discretion, to satisfy such claim. At the request of any indemnitee, Subcontractor shall retain an attorney to represent such indetnnitce in the defense of any such claim, provided, however, that any attorney employed in such defense must be satisfactory to such indemnitce. Article25. Elimination or Reduction of Work 25. I In the event of elimination or reduction of the work to be performed under this Subcontract by reason of termination or modification of the Contract Documents or a change in the work to be done thereunder, either in accordance with the terms of the Contract or the Contract Documents or by default by Owner, Subcontractor shall not be entitled to recover from Contractor more than its fair and equitable portion of any sums received by Contractor for work done or materials supplied by this Subcontractor on this Subcontract. The rights and claims of the Contractor, other subcontractors and third parties shall be taken into consideration in determining Subcontractor's fair and equitable share. Article 26. Collective Bargaining A>;rcements and Labor Hannonv 26.1 Subcontractor shall comply with, observe and be bound by atl terms and provisions of any collective bargaining agreements executed by Contractor or on Contractor's behalf. Subcontractor shall indemnify and save Contractor harmless from and against any claim, including court costs and attorney's fees, resulting in any manner whatsoever from Subcontractor's failure to comply with the provisions of this article of this Subcontract. In the event Subcontractor fails or refuses to comply with, observe or be bound by any terms or provision of any such collective bargaining fume shed to Subcontractor by Contractor Subcontracfito 1 shall be deemed to~be inodefaulteof this Subcontract. 26.2 If directed by Contractor, Subcontractor shall perform all work with union labor and equipment. 26.3 The Subcontractor accepts all responsibility to maintain labor harmony with all trades working on this project during the perforn~ance of Subcontractor's Work. Furthermore, Subcontractor will endeavor to provide all contacts, coordination and agreements with such local labor organizations as are required to ensure such harmony and without disruption of work in any manner, Article 27. Pemuts and Comvliance with Law 27.1 Subcontractor shall obtain and pay for all permits, licenses and official inspection made necessary by its work and shall comply with all laws, ordinances and regulations bearing on the work required under this Subcontract. 27.2 Without limitation of any other provision hereof, if the Subcontractor performs any Work which is contrary to such laws, ordinances, codes, rules and regulations, he shall make all changes as required to comply therewith and bear all costs arising therefrom without additional reimbursement. Article 28. Inde n ent Contractor 28.1 The Subcontractor certifies that he is "an independent Contractor" subject, as an employer, to all applicable statutes and regulations with respect to such status. Article 29. Emoloyee~ 29.1 The Subcontractor shall not employ any person in performance of this Subcontract whose employment might be reasonably objected to by the Contractor or Owner and hereby agrees to promptly remove from the Project any such person or party. Article 30. Notice 30.1 Written notice, where required by the terms of this Subcontract, may be accomplished by personal delivery of said notice or by use of the United States mail or a facsimile communication. The written notice shall become effective upon the date stated therein, or, if no such date is stated, upon the date upon which delivery is complete. 30.2 Personal delivery is complete when the notice is delivered to the Subcontractor or its representative at the Project or at the office address of the Subcontractor appearing in this 12 of 16 Subcontract. The Subcontractor shall, al all times during its..avork on this Project, have a representative authorized to receive written notices present on the Project site during all nonnai working hours. [n the absence of such a representative, personal delivery is complete when the notice is delivered to any of its subcontractors, supervisors or workmen, or in their absence, left in a conspicuous place on the Project site in the area of Subcontractor's work. 3t).3 If facsimile is used, completion of the facsimile will have a confirmation notice attached thereto, to indicate that the fax has been sent in its entirety, and shall have a date reflected thereon. 30.4 When regular or overnight mail is used, delivery is complete for the on the date first occurring among the following: a) on the day the com~municationas~phred by Subcontractor evidenced by a return receipt furnished by the United States Post Office Department or by any recognized messenger or delivery service, or b) on the third day after the notice is deposited in the U.S. mail addressed to the Subcontractor at its last known address. Article 3 I. Superintendent 31.1 The Subcontractor shat! at all times maintain a qualified and skilled superintendent or foreman at the site of the work who shall be satisfactory to the Owner, the Owner's authorized agent and/or the Contractor. Such superintendent or foreman shall be duly and legally authorized to represent and act for the Subcontractor with respect to all matters in connection with or arising out of work under this Subcontract Article 32. Subcontractor'c Decline with Owne 32.1 It is agreed that all of Subcontractor's dealings with the Owner's authorized agent, the Owner, or any other party named in the Contract Documents shall be through the Contractor. 32.2 The Subcontractor further agrees that he shall not make any agreement with the Owner's authorized agent or with the Owner pertaining to any phase of the performance of this Subcontract. Article 33. Contributions Taxes and Inswance 33.1 The Subcontractor agrees to and does hereby accept full and exclusive liability for the payment of all contributions, taxes, insurance of any description whatever, now or hereafter imposed by any authority, which are measwed by the wages, salaries or other remunerations paid to persons employed by Subcontractor on work performed pursuant to the terms of this Subcontract. 33.2 Subcontractor further agrees to and does hereby accept full and exclusive liability for the payment of all personal property taxes, inventory taxes, sales taxes, use taxes, excise tares, fuel taxes, transportation taxes, franchise taxes, and all other taxes, and/or tax assessments in any manner whatsoever relating to the materials, supplies, tools, machinery, equipment and plant which may be purchased, acquired, rented or used by Subcontractor relating to all work performed under this Subcontract. Article 34. In ce 34.1 Subcontractor shall require its Subcontractor to provide and maintain at all times during the performance of the Sub-Subcontractor's Subcontract, Workmen's Compensation and Employer's Liability insurance for protection of the Sub-Subcontractor's employees, as required by taw; and inswance covering Public Liability Properly Damage and Sub-Subcontractor's Contractual Liability under its Subcontract (including but not limited to all work performance and operation of automobiles, trucks and other vehicles, excess, asbestos and mold, the values of which are itemized in Exhibit "H"). The insurance provided by the Sub-Subcontractor shall meet all of the requirements of this Subcontract including any and all coverage required of Contractor by the contract documents. All insurance required hereunder shall be maintained in full force and effect in a company or companies satisfactory to Contractor, at the Subcontractor's expense, and until performance in full hereof has been accomplished and final payment has been issued in evidence thereof. Further, such insurance shall be subject to the requirement that Contractor must be notified by thirty (30) days written notice before cancellation of any such policy. In the event of the threatened cancellation for non-payment of premium, Contractor may pay the same for Subcontractor and deduct the said payment from amounts then or subsequently owing to the Subcontractor hereunder. In the event Contractor, in its sole discretion, determines that Subcontractor is not maintaining the insurance required by this Subcontract, Contractor shall have 13 of 16 the right to immediately terminate this Subcontract without any notice to Subcontractor. 34.2 Certificates of insurance must be filed with the Contractor within thi execution of this Subcontract or prior to commencement of work, whichevder is cerjeedateNof payment shall be considered due and owing hereunder until certificates of insurance satisfactory to the Contractor have been received in its office. 34.3 Subcontractors' liability policy must list as additional insured both Contractor and the Owner of the Project. Subcontractor's policy shall be the primary policy 34.5 To the fupest extent permitted by applicable law, Subcontractor waives all subrogation rights against Contractor, Owner, and any of their agents and employees: (!)for damages caused by fire or other perils to the extent covered by property insurance provided under the Principal Contract, this Subcontract or other property insurance applicable to the Work, except such rights as they may have to proceeds of such insurance held by Owner or Contractor as fiduciary; and (2) for other claims to the extent arising out of a loss or claim covered by Subcontractor's liability, automobile or worker's compensation inswance. Subcontractor shall require of Subcontractor's sub-subcontractors, agents and employees by appropriate agreements, written where legally required for validity, similar waivers in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be e13'ective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. Article 35. Effec_____ ~vo ~a~e 35.1 The effective date of this Subcontract is intended by both parties to be the date indicated at the beginning of this Subcontract. The dates appearing by the signatures at the end of this document merely indicate the dates that the signatures were affixed. Article 36. Waiver of Liens and Releases 36.1 If Contractor posts a bond guaranteeing payment for goods, materials, and equipment supplied, labor or services provided to the Project by Subcontractors, then Subcontractor agrees to waive its right to file a mechanics' lien and that no mechanics' liens, notices, or claims, or materialrr-an's liens, notices, or claims, or any other liens or claims of any kind whatsoever will be filed, enforced, or maintained with respect to the goods, materials, and equipment supplied, labor or services performed pursuant to this Subcontract against the Project for which they are supplied or Performed, or against the owner, real property, building, or other improvements of which the Project is a part, or any part or parts thereof or the apptutenances thereto by Subcontractor, its successors and assigns. If the bond posted by Contractor guar'antces payment for goods, materials, and equipment supplied, labor or services provided to the Project by sub-subcontractors, suppliers, materialman and other entities pursuant to a contract with Subcontractor, then Subcontractor shall obtain lien waivers from such sub-subcontractors, suppliers, materialman and other any other similazly situated entities, stating that liens may not be filed on the Project and provide written notice of this lien waiver provision to its sub-subcontractors, suppliers, materi~alman, and all other persons or entities acting by, through, or under it or them, prior to and before any labor or services arc performed, or goods, materials, or equipment are supplied to the Project pursuant to this Subcontract. 36.2 If Contractor posts a bond guaranteeing payment for goods, materials, and equipment supplied, or labor or services performed by Subcontractor, then, in the event a mechanics' lien, notice, or claim, or materialman's lien, notice, or claim, or construction lien claim, or lien, or any other lien or claim of any kind whatsoever is filed, enforced, or maintained by Subcontractor and/or any of Subcontractor's sub-subcontractors, suppliers, materialman, and all other persons or entities acting by, through, or under it or them, then Subcontractor shall defend, indemnify, and hold Contractor harmless from such liens and/or claims, and shall also cause said mechanics' lien, notice, or claim, or materialman's lien, notice, claim, construction lien claim, or other lien of any kind whatsoever, to be discharged in accordance with applicable law. Subcontractor also agrees to pay and reimburse Contractor for all costs, expenses and attorney's fees incurred by Contractor in defending, responding to and/or discharging liens or claims filed by Subcontractor and/or any of Subcontractor's sub-subcontractors, suppliers, matenalman, and all other persons or entities acting 14 of 16 by, t}uough, or under it or them whenever a valid lien waiver is in place on a Project. 36.3 As a prerequisite to payment, Subcontractor agrees that it will execute, in a form satisfactory to owner, all documents required by Contractor that evidence, ensure, and guarantee that the Subcontractor has made payment for all Work performed in connection with this Subcontract, including, but not limited to, Releases and Partial Waiver of Liens, in consideration for each and Very payment and up the date covered by the payment, whether partial or final. Said Releases and Partial Waiver of Liens shall include, whenever so requested by Contractor, and in a form acceptable to Contractor, Partial Waiver of Liens and Release of claims, costs, expenses, fees, charges, changes, change orders, or change order requests that arise out of or relate to Subcontractor's Work performed from all contractors, suppliers, persons and/or entities that have, or will, provide labor, materials, equipment, machinery, fixtures, services, or labor under any agreement(s) with Subcontractor for the Subcontractor's Work under this Subcontract. A sample Partial Lien Waiver and Release Form is attached hereto as Exhibit "C" to this Subcontract. Contractor reserves the right to modify the form of this Partial Lien Waiver and Releitse. 36,4 The Subcontractor, when required by the Contractor as a condition precedent to the making of hnal payment hereunder, shall furnish to the Contractor a full and complete release and discharge, in a form satisfactory to the Contractor, of all liens, claims and demands arising out of or relating to the Subcontract work and any and all materials furnished, work done and equipment used in connection therewith. Furthermore, if, prior to final payment, the Owner or any party providing financing for the Project requests a release of liens from the Subcontractor, the Subcontractor shall execute and deliver such release of liens in a form satisfactory to the Owner or such other party. Article 37. Applicable Law 37.1 The law of the State in which the project is located, not including choice of law analysis, shall be applicable to this Contract and shall be used to decide any dispute related to this Contract. Article 38. Deternlirtation of Disputes 38.1 Any dispute arising out of or related to this Subcontract shall be governed by the laws of the Commonwealth of Pennsylvania. Subcontractor submits to personal juri diction in Mercer County, Pennsylvania, and expressly waives any right to select venue or object to any venue selected by Contractor; in any action arising out of or related to this Subcontract or any bond(s) posted by Contractor. Subcontractor agrees that if any dispute arising out of or related to this Subcontract, or brought against any bond(s) posted by Contractor, cannot be resolved amicably, Contractor has an express right to select venue for appropriate legal or equitable proceedings (including arbitration pursuant to Section 38.2) in Mercer County, Pennsylvania or the site of the Project. Subcontractor acknowledges that Contractor's Bonding Company is an intended third- party beneficiary of this provision. 38.2 If a dispute arising out of or relates to this Contract, or breach thereof, and if the dispute cannot be settled through pre-litigation negotiations, the Contractor and Subcontractor agree, at the Contractor's sole election, to subject the dispute to arbitration administered by the American Arbitration Association under its Construction Industry Arbitration Rules whereby a judgment on the award rendered by the Arbitrator(s) may be entered in any Court having jurisdiction thereof. Under such circumstances, the Arbitrator(s) shall have the exclusive power to determine issues of arbitrability. Such arbitration shall be final and binding upon the parties. Article 39. Nondiscrimination in Emplo ment 39.1 UNLESS EXEMPT 1N ACCORDANCE WITH EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, DURING THE PERFORMANCE OF THIS CONTRACT, THE SUBCONTRACTOR AGREES AS FOLLOWS: 3y•2 The Subcontractor will not discriminate against any employee, or applicant for employment because of sex, race, religion, color or national origin. The Subcontractor will take a~rmative action to ensure that applicants are employed and that employees are treated during employment without regard to their age, sex, religion, color or national origin. The Subcontractor agrees to post in conspicuous places, available to the employees and applicants for employment, notices to be provided setting forth the provisions of the nondiscrimination clause. IS of 16 39.3 The Subcontractor will state, in all solicitations or advertisement for employees, placed by or on behalf of Subcontractor, that all qualified applicants will receive consideration for employment without regard to sex, race, religion, color or national origin. 39,4 The Subcontractor will comply with all provisions of Executive Order 112.36 of September 24, 1965 and the rules, regulations and relevant orders of the Secretary of Labor. 39.5 The Subcontractor will furnish all information and reports required by Executive Order l 1246 of September 24, 1965 and by the rules, regulations and orders of the Secretary of Labor„ or pursuant thereto, and +vill permit access of his books, records, and accounts by the administ@ring agency and the Secretary of Labor for purposes of investigation to ascertain compliancd with rules, regulations and orders. 39.6 In the event the Subcontractor is in non-compliance with the nondiscrimination citruses of the Contract or with any of the said rules, regulations or orders, this Contract may be canceled, terminated or suspended in whole or in part, and the Subcontractor may be declared iheligible for further government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965 and such other sanctions as may be imposed and remedies invoked as provided in the said Executive Order nor by rules, regulations or orders of the Secretary of Labor, or as otherwise provided by Law. 39.7 The Subcontractors will include the provisions of Paragraph One (1) through Seven (7) in every Sub-Contract or Purchase Order unless exempted by rules, regulations acrd orders of the Secretary of Labor issued pursuant to Executive Order 11246 of September 24, 1965, so that suclh provisions will be binding upon each Sub-contractor or Vendor. The Subcontractor will take such action with respect to any Sub-subcontract or Purchase Order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance; providejd however, that in the event the Subcontractor becomes involved in, or is threatened with, litigation with a Sub-subcontractor or vendor as a result of such direction by the administering agency, the Subcontractor may request the United States to enter into such litigation to protect the interests of the United States. Section F Special Provisions: The below listed exhibits are attached hereto and made a part of this Subcontract: "A" - Scope of Work "13" -List of Drawings "C" -insurance Requirements "D" -Release of Lien Form "E" -Payment Terms Witness Denise Y. urkhard, Mech. Admin. Assistan Witness HERRE BROS., INC. By ilham H. Euker, Vp p 1 -`-` ate BOSS INSULATION & ROOFING, INC. y ate 16 of 16 r ~~ ~ ~~~ November 16, 2010 ;. I N C O R P O R A E O 4417 Valley Road Enola, PA 17025-1477 717.732.4454 Phone 717.732.8208 Fax www.herrebros.com MECHANfCAL AND ELECTRICAL CONTRACTORS Mr. Max Bossert Boss Insulation & Roofing Company, Inc. 155 Bossert Blvd. West Milton, PA 17866 Reference: SCI Coal Township "Roof Leaks" Dear Mr. Bossert, Confirming our telephone conversation held on Monday, Novernb~r 15, 2010, you indicated to me that Boss Roofing will not be returning to the above referenced project to remediate roof insulation issues at 271 equipment rail locations. As discussed, I informed you that Herre Bros., Inc. has no other ctjoice at this time but to hire another roofing contractor to perform work which Boss Roofing failed to properly do per the specifications. In particular, Boss Roofing failed to wrap the top of the equipment rails which tias resulted in numerous roof leaks throughout the prison complex where work was performed. The specifications for this project clearly state that the top of the equipment rails are to be wrapped. The Owner has ordered us to remediate the problem. You indicated to me that you realize your workers failed to do the' work and they are no longer employed but you cannot provide the requirced manpower to make the necessary repairs. As I stated, please be advised that Hen:e Bros., Inc. will not pay Bloss Roofing the retention owed in the amount of $32,644.00. Also, it' is our intention to pursue legal action against Boss Roofing. to recuperate all cost(s) associated with hiring a roofing company to perform the required contract work. In addition, we will also be seeking reimbursement of our cost to provide the required labor to lift the rollers and piping at efach equipment rail location to allow the top to be wrapped. Please be advised that this is our official notification, in accordance with Article 21.1 of our contract agreement with your firm, that Boss Roofing is in Default of your contract with Herre Bros., Inc. and you haves one day to respond to this letter and make the decision to perform the required contract work. If we do not receive communication from you by jthe close of business on Friday, November 19, 2010, Herre Bros., Inc. will'take over the work of Boss Roofing and remedy the situation at the cost(s) bf Boss Roofing. Mr. Max Bossert Boss Insulation & Roofing Company, Inc. November 15, 2010 Page Two Mr. Bossert, I implore you to reconsider your decision to not remedy the roof issues caused by your firm. ~' I have attached correspondence from the Owner (DGS) regarding roof INCORPORATED leak issues. Please take the time to review this information. Should you have any questions or require any additional information, please do not hesitate to contact me. Sincerely, G William E. Rollyson Manager Mechanical Division Cc: Rick McBride Kevin Baker Darla Stare MECHANICAL AND ELE( TRICAI_ CONTRACTORS 11111 Page 1 of 2 William Rollyson From: Klinikowski, Norm [NKLINIKOWS@state.pa.us] Sent: Friday, November 05, 2010 10:20 AM To: William Rollyson; Rick McBride Cc: Zimmerman, Richard (DGS); Tassin, Marcel; Corbin, David; Doug A. Stouffer Subject: FW: Roof leaks Bill I know Joe and Sharon were going to attempt to get this survey test accomplished lalst Thursday. I have not seen the outcome of the results however from Dep Supt McMillan's attached comments, the results focus on the workmanship around the equipment support rails installed under your contract as the origin of these leaks. There are three potential avenues for these leaks that have been presented many times previously in a very objective manner in the presence of HB personnel: Infiltration of water at the pipe roller base assemblies through the rain shield and into the building. Poor or inconsistent workmanship in applying EPDM and insulation at the ba$e of the equipment support rails, columns and supports throughout the housing units, corridors, admin, program services and central services complexes Absent protection of the roof during project construction from the effects of welding and slag, point loads and impact While there is no argument that the roofs are fifteen years old, the institution has spent considerable resources to repair or at least stabilize these roofs over the last 18 months, and if this report is accurate, the results of the test substantiate the claim the leaks are prevalent and related to the areas affected under your contract. Additionally the majority of leaks are found directly under the project area. Since then has there been any consultation with other roofing material suppliers or contractors to determine an appropriate solution for the professional to review to fix these problems in an effective permanent manner since the weather is closing an opportunity to make the necessary repairs and have you developed a schedule to accomplish this work? Is a copy of the survey results available for review? I sent same roofing materialr information to you the other week that may offer some assistance. Also, Joe made a good point that the insulation thickness varies on the roof. This vu~ould create an elevation discrepancy between the HSS 12 x 2 to which the equipment support rails are fastened and the surrounding layer of insulation where this tube is embedded. The professional should be consulted as to the proper method to handlle this problem since the detail on drawing M-401 Detail C indicates the requirement td provide a built up section of insulation around the base of the equipment support to prevent any depression or ponding of water 11/16/2010 bill Page 2 of 2 Your prompt response and attention to this continued problem is appreciated I will do what I can to help you but we need to get attention to these conditions immediately, Thank you Norm -----Original Message----- From: Mcmillan, Robert Sent: Friday, November O5, 2010 9:45 AM To: Sieg, Harry Cc: Zimmerman, Richard (DGS); Klinikowski, Norm Subject: Roof leaks Harry as the staff member responsible for the Herre Bros project I must bring the following concems',to you and request follow up action and information. I have been informed that the testing conducted the other might revealed that the alleged (bad) roofs were not responsible for the roof leaks. If fact the roofs were determined'to be in decent shape. In several locations the roofs were determined to be intact and we have serious leak. This leads us back to the pate rails being the cause of the leaks. Do you have any idea what the plan of action is to deal with the leaks or when corrective action will begin? There are overtwo-hundred and seventy pate rails om this project and will all of them be corrected? I am increasingly concerned due to water leaking out of electrical lights in several locations and on the gym floor. We have had to relocate staff offices and take office areas oi'f line due to the leaks. With cold weather approaching fixes will become increasingly difficult and damage to our building and equipment will continue. Also, the last response from the professional concerning pate rails not being on 10K joists proved to be a misleadingly due to the fact that the condition does exist. Where are we at with this? We have and continue to spend significant money for staff escorts on this project that had a completion date of December of 2008. Robert A. McMillan I DSFM Department of Corrections 1 Kelley Drive I Coal T'wp., PA 17866 Phone: 570.644.7890 Ext 2407 Fax: 570.644.4890 www cor state oa.us I www governor state.oa.us This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication in error, please immediately notify the sender and then delete the communication from your electronic mall system. 11/16/2010 ~~~~~ ~o Kathleen J. Seligman Attorney At Law C~v Sys PAitAs November 23, 2010 ~n s t~rr,.(`~r* . ~ i,-R sue, ATiD FACS~ Mr. Max Bossert Boss Insulation & Roofing, Inc. 155 Bossert Boulevard West Milton, PA 17866 Re: Herne Bros., Inc. and SCI Coal Township Project Dear Mr. Bossert: Unked Plaza, 19th Fioor 30 South 17th Street Philadelphia, PA 19103 T 215.564.1700 I F: 267.238.4417 kseligmanOoohenseglias.com www.cohenseglias.com This law firm represents Herne Bros., Inc. ("Herre'~ with respect to the SCI Coal Township Project (the "Project'. On or about January 4, 2008, Boss Insulation and Roofing, Inc. ("Boss's entered into a subcontract with Herne to providing roofing materials and services at the Project (the "Subcontract"). Pursuant to n'it'. William Rollyson's letter dated November 15, 2010, and the accompanying attachments, the Owner of the Project has discovered defects with respect to ficall Boss failed to perform its work according to the Project Boss' work on the Project. SpeC1 y~ ment rails on the Project, which has resulted Specifications and properly wrap the top of the equip in numerous roof leaks. The Owner has dem to Article 21~of the Subcontrac~Herre hereby remedy the roof leaks on the Project. Pursuant demands that Boss fulfill its contractual obligations to perform the corrective work. Herne demands that Boss perform the corrective work on the Project. If Boss fails or refuses to advise Herne of its intention to perform the corrective work by Novembeer 30, ZO10, Herne will consider Boss to be in default of the Subcontract anll~ Ve° o ho ~h but to self- Subcontract. Upon Boss' default of the Subcontract, Herne ~ ~~~ b Herne ~ a perform the corrective work and seek indemnification for any damag Y result of Boss' default and any and all re~m~ ~st~a ~ ~ g~ amt ~~ p~~~o reserves any and all legal nghts and paragraphs 21.6, 21.7 and 24.1 of the Subcontract. This letter shall be my last communication with Boss before Herne self-performs the corrective work and initiates legal action. Please guide yourself accordingly very truly ours, - KATHLEEN J. ELIG ICJS/jk cc; Herne Bros., Inc. Philadelphia I Pittsburgh I ~Imington Harrisburg I New Jersey SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor d Tfs?r ?n`zr.ital, v-il( FEB -8 A 0.' r79, Herre Brothers, Inc. Case Number vs. 2011-19 Boss Insulation Roofing, Inc. SHERIFF'S RETURN OF SERVICE 01/05/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Boss Insulation Roofing, Inc., but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Union County, Pennsylvania to serve the within Complaint and Notice according to law. 02/01/2011 03:05 PM - Union County Return: And now February 1, 2011 at 1505 hours I, Ernest R. Ritter III, Sheriff of Union County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Boss Insulation Roofing, Inc. by making known unto Max Bossert, Owner of Boss Insulation Roofing, Inc. at 155 Bossert Boulevard, West Milton, Pennsylvania 17866 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $37.00 February 04, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF HERRE BROS., INC., : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PA VS. : DOCKET NO. 11-19 CIVIL BOSS INSULATION & ROOFING, INC., : CIVIL ACTION r= -n Defendant j -, ?-- -- TO: David Buell, Prothonotary -: , -- c-: Please enter my appearance on behalf of Boss Insulation & Roofing, Inc. in c . above matter. Date:1I 1-?J Brian W. Ulmer, Esquire I.D. No. 80116 23 North Derr Drive Lewisburg, PA 17837 (570) 522-1092 10 TAP; Brian W. Ulmer, Esquire 1 F C3 23 North Derr Drive Lewisburg, PA 17837 r'UZ4BERL00 COUNTY (570) 522-1092 pEtI 3SYLVANIA Attorney for Defendant Boss Insulation & Roofing, Inc. HERRE BROS., INC., : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PA VS. : DOCKET NO. 11-19 CIVIL BOSS INSULATION & ROOFING, INC., : CIVIL ACTION Defendant : NOTICE TO PLEAD You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering-a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiffs. 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. The Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 _? ILV' Brian W. Ulmer, Esquire, I.D. No. 80116 Attorney for Defendant. 23 North Derr Drive Lewisburg, PA 17837 (570) 522-1092 HERRE BROS., INC., : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PA vs. : DOCKET NO. 11-19 CIVIL BOSS INSULATION & ROOFING, INC., : CIVIL ACTION Defendant ORDER AND NOW, this day of 2011, upon consideration of Defendant's Preliminary Objection, it is hereby ORDERED that Plaintiffs Complaint is dismissed. BY THE COURT: J. HERRE BROS., INC., Plaintiff vs. BOSS INSULATION & ROOFING, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA : DOCKET NO. 11-19 CIVIL CIVIL ACTION DEFENDANT'S PRELIMINARY OBJECTION NOW COMES, Defendant Boss Insulation & Roofing, Inc., by and through its attorney Brian W. Ulmer, Esquire, who respectfully represents as follows: 1. Plaintiff Herre Bros., Inc. filed a Complaint against Defendant Boss Insulation & Roofing, Inc. which was served on or about February 2, 2011. 2. Plaintiff is suing Defendant based on a Subcontract which is included as Exhibit B of Plaintiff's Complaint. 3. Article 38.1 on page 15 of Plaintiff's Exhibit B dictates the determination of any disputes. 4. Article 38.1 states that "Subcontractor submits to personal jurisdiction in Mercer County, Pennsylvania, and expressly waives any right to select venue or object to any venue selected by Contractor, in any action arising out of or related to this Subcontract or any bond(s) posted by Contractor." 5. Article 38.1 further states that "Subcontractor agrees that if any dispute arising out ofor related to this Subcontract, or brought against any bond(s) posted by Contractor, cannot be resolved amicably, Contractor has an express right to select venue for appropriate legal or equitable proceedings (including arbitration pursuant to Section 38.2) in Mercer County, Pennsylvania or the site of the Project. 6. As noted in paragraph three of Plaintiffs Complaint, the project in question was located in Northumberland County. 7. Read in conjunction, the key parts of Article 38.1 permit Plaintiff to select the venue for this matter, which can be either Mercer County or Northumberland County. 8. Defendant is not objecting to Plaintiff's right to select the venue. 9. Defendant cannot object to Plaintiff selecting either Mercer County of Northumberland County as the venue for this proceeding. 10. However, Plaintiff's selection of Cumberland County for this matter is impermissible under Pa.R.C.P. 1028(a)(1) as well as Article 38.1 of the Subcontract. WHEREFORE, Defendant respectfully requests dismissal of Plaintiff's Complaint and any other such relief as may be deemed necessary. Respectfully submitted, 0-: kJ' W, Brian W. Ulmer, Esquire, I.D. No. 80116 Attorney for Boss Insulation & Roofing, Inc. 23 North Derr Drive Lewisburg, PA 17837 (570) 522-1092 VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: o? 124I ?1- 0- Irv. (,(;C.. HERRE BROS., INC., : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PA VS. : DOCKET NO. 11-19 CIVIL BOSS INSULATION & ROOFING, INC., : CIVIL ACTION Defendant CERTIFICATE OF SERVICE I hereby certify that on this date I served a copy of the foregoing document upon the following by U.S. first class mail, postage prepaid: Kathleen J. Seligman, Esquire 30 South 17th Street, 19th Floor Philadelphia, PA 19103 Date: P- W, LIQ,._._._. Brian W. Ulmer, Esquire, I.D. No. 80116 Attorney for Boss Insulation & Roofing, Inc. 23 North Derr Drive Lewisburg, PA 17837 (570) 522-1092 FILED-OFFICE 0 T?IE* r,O s 110NOTAF.,Y '011M R 10 AM11:Ct; CU",13ERLAND COUNTY PENNSYLVANIA COHEN SEGLIAS PALLAS REENHALL & FURMAN, P.C. BY: JASON A. COPLEY STEVEN M. WILLIAM Attorney I.D. Nos. 72774/62051 240 North Third Street 7t' Floor Harrisburg, PA 17101 Attorneys for Plaintiff, (717) 234-5530 Herre Bros., Inc. HERRE BROS., INC., 4417 Valley Road Enola, PA 17025-1477, v. BOSS INSULATION & 155 Bossert Boulevard West Milton, PA 17866, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION J NC., : DOCKET NO. 2011-19 CIVIL S Plaintiff, Herre Bros., Greenhall & Furman, P.C., Defendant, Boss Insulation & NS ("Herre") by and through its attorneys, Cohen, Seglias, Pallas, by files this Answer to the Preliminary Objections filed by ofing, Inc. ("Boss" or "Defendant") and avers as follows: 1. Admitted. 2. Admitted in part and denied in part. It is admitted that the Subcontract that serves the basis for some of the claim against Defendant is attached Herre's Complaint as Exhibit A (not Exhibit B, as alleged by D fendant) (the "Subcontract"). It is further admitted that one of Herre's claims is based on the Subcontract. The remainder of this paragraph is specifically denied, and proof, to the extent 3. Denied. The characterizations of the S wholly consistent with the is demanded. ntract is a writing that speaks for itself, and all by Defendant are specifically denied to the extent not 4. Admitted in part and denied in part. It is admitted only that Defendant has properly quoted a portion of Artcle 38.1. The Subcontract is a writing that speaks for itself, and all characterizations of the Sub ontract by Defendant are specifically denied to the extent not wholly consistent with the S 5. Admitted in properly quoted a portion of all characterizations of the wholly consistent with the S 6. Admitted. 7. Denied. This To the extent that this Court the extent that Defendant alle Northumberland County, and answer Article 38.1 merely and denied in part. It is admitted only that Defendant has ;le 38.1. The Subcontract is a writing that speaks for itself, and )ntract by Defendant are specifically denied to the extent not states conclusions of law to which no answer is required. s an answer is required, this paragraph is specifically denied to that Herre's choice of venue is limited to Mercer County and 10f, to the extent relevant, is demanded. By way of further that venue is proper in Mercer County or Northumberland 2 County; nothing in Article 38.1 prohibits Herre from bringing this action in any other County wherein venue is also proper, such as Cumberland County. 8. Admitted. 9. Admitted. By w4y of further answer, pursuant to Article 38.1, Defendant is not entitled to object to any venue 10. Denied. This r To the extent that this Court and proof, to the extent relev, forth in the Affidavit that is venue is proper in County. WHEREFORE, Plai Court overrule Defendant's Complaint in this case within as this Court deems just and Preliminary Objections, pu Subcontract, Plaintiff, Herre this case to a County of made by Herre. tgraph states conclusions of law to which no answer is required. ms an answer is required, this paragraph is specifically denied, is demanded. By way of further answer, and for the reasons set ached hereto as Exhibit A, and pursuant to Pa.R.Civ.P. 2179, County because the Subcontract was formed in Cumberland Herre Bros., Inc., respectfully requests that this Honorable ninary Objections, order Defendant to file an Answer to the ity days from the date of the Order, and grant such other relief opriate. In the alternative, if this Court sustains Defendant's it to Pa.R.Civ.P. 1006(e), and in accordance with the , Inc., respectfully requests that this Honorable Court transfer 's choosing. 3 Respectfully Dated: ,?` COHEN SE IAS P LLAS GREEN LL & RMAN, P.C. BY: 4 JASON A. COPLEY, ESQUIRE jcopley@cohenseglias.com STEVEN M. WILLIAMS, ESQUIRE swilliams@cohenseglias.com 240 North Third Street, 71h Floor Harrisburg, PA 17101 (717) 234-5530 Attorneys for Plaintiff, Herre Bros., Inc. EXHIBIT A Being duly sworn ac 1. I, Richard A. 2. I am employed by 3. On or about Pennsylvania Department of Gf limited to the replacement of the as "DGS Project 375-1.2 SCI AFFIDAVIT to law, the undersigned deposes and says: .e, am an adult individual over the age of 18. re Bros., Inc. ("Herre"), and my job title is President/CEO. fiber 7, 2007, Herre entered into a contract with The Ll Services to perform HVAC services, including but not chilled water loop system at the construction project known Township" (the "Project"). 4. In or about Octo er 2, 2007, Boss Insulation and Roofing, Inc. ("Boss") sent a quoteibid to Herre to provide c rtain roofing materials and services for the Project ("Boss's Services"). 5. At a date not Herre's Complaint (the "S 6. On or about J signed the Subcontract at its 7. On or about J County, Pennsylvania a Date: S14-11 to me, Boss signed the Subcontract, which is Exhibit A to '), offering to provide Boss' Services. 14, 2008, after Boss had signed the Subcontract, Herre in Cumberland County, Pennsylvania. y 14, 2008, Herre transmitted from its office in Cumberland copy of the Subcontract to Boss. Richard A. McBride nsP - Print ame: COMMONWI COUNTY OF On this, the J/ day Commonwealth of Pennsyl 6'An r d c B cr ' ? 2- , who Bros., Inc., a Pennsylvania corps foregoing instrument for the pul its President. Witness my hand and My commissions expires: NOTARIAL SEAL AMY MCKENSIE, NOTARY HAMPDEN COMMISSIONI ER EXPIRES 11 #1222173-v1 06334-0045 1IA . ss. )f March 2011, before me a Notary Public in and for the ,ania, the undersigned officer, personally appeared acknowledged himself to be the c3) en C d of Herre ration, and that as such, being authorized to do so, executed the loses contained therein by signing the name of the company as seal the day and year aforesaid. Nom blic 512013 2 VERIFICATION 1, Richard A. McBride, -ng a duly authorized representative of Herre Bros., Inc., have read the foregoing Answer and erify that the factual statements contained therein are true and correct to the best of my knowl ge, information, and belief. I understand that this Verification is made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unworn falsification to authorities, which provides that may be subject to criminal penalties if I make a written false statement that I do not believe to The true. Dated: 3 /q / I I Richard A. McBride President/CEO Herre Bros., Inc. I hereby certify that the this day to the following: Answer was sent by first class mail, postage prepaid Brian W. Ulmer, Esquire 23 North Derr Drive Lewisburg, PA 17837 Attorney for Defendant Respectfully submitted, Cohen Seglias Pallas Greenhall & Furman PC Date: S1 1? \1? By: ak-??a - Alison A. Zortman, Legal istant 240 North Third Street, 7`h oor Harrisburg, PA 17101. (717) 234-5530 Attorneys for Plaintiff Pr /P PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Argument Court.) CAPTION OF CASE (entire caption must be stated in full) HERRE BROS., INC. vs. BOSS INSULATION & ROOFING, INC. (List the within matter for the next ------------------------------------ C o „03 W 2 rm = MW zm ?1a -< tV w ° vC-) -v 0 Es 3 > N -i N 2011-19 Civil c? a -i t??t TO C ?n ?-4m y No. Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Steven M. Williams, Esquire, Cohen Seglias Pallas Greenhall & Furman, P.C. (Name and Address) 240 North Third Street, 7th Floor, Harrisburg, PA 17101 (b) for defendants: Brian W. Ulmer, Esquire (Name and Address) 23 North Derr Drive, Suite 4, Lewisburg, PA 17837 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: May 27, 2011 Signature Steven M. Williams, PA I.D. 62051 Print your name Plaintiff March 21, 2011 Attorney for Date: INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. CERTIFICATE OF SERVICE I hereby certify that the foregoing Praecipe was sent by first class mail, postage prepaid this day to the following: Brian W. Ulmer, Esquire 23 North Derr Drive Suite 4 Lewisburg, PA 17837 Attorney for Defendant Respectfully submitted, Cohen Seglias Pallas Greenhall & Furman PC Date: March 21, 2011 By: ? ? ?W- 4 (}?? A ison A.Zortman, egal sista 240 North Third Street, 7t loor Harrisburg, PA 17101 (717) 234-5530 Attorneys for Plaintiff HERRE BROS., INC., Plaintiff vs. BOSS INSULATION & : ROOFING, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 11-0019 CIVIL C'J c rnCc =rn zM - ? <r--t3> ra C) c r- IN RE: DEFENDANT'S PRELIMINARY OBJECTION BEFORE HESS, P.J. AND GUIDO J. ORDER -v 3 N c.n CJ7 AND NOW, this day of July, 2011, following argument, the Court concludes that Article 3 8.1 of the agreement between the parties does not preclude the choice of Cumberland County as the venue in this case. In addition, other than a reference to Pa.R.C.P. 1028(a)(1), the defendant's preliminary objection fails to state a reason why venue in Cumberland County is improper or otherwise rebuts plaintiff s contention that the contract was accepted here. Accordingly, the preliminary objection of the defendant to venue is DENIED. ? Steven M. Williams, Esquire For the Plaintiff Brian W. Ulmer, Esquire For the Defendant v`T? 11 11 ?I c?z rn rn q c:) o-n xF; ° raj Arn BY THE COURT, r `. 1 ONOTAt Brian W. Ulm 'r, Esquire 23 North Derr Drive Lewisburg, PA 17837 l1*iDERLAND COUNTY (570) 522-109 ? ?#SMANIA Attorney for Defendant Boss Insulation & Roofing, HERRE BROS'., INC., : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PA VS. :DOCKET NO. 11-19 CIVIL BOSS INSULATION & ROOFING, INC., : CIVIL ACTION Defendant DgFFNDANT'S ANSWER TO PLAINTIFF'S COMPLAINT NOW,, COMES, Defendant Boss Insulation & Roofing, Inc., by and through its attorney Brian W. Ulmer, Esquire, who respectfully represents as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Denied, as Defendant properly performed its scope of work. Strict proof of same is demanded. 10. Denied, as Defendant properly wrapped the top of equipment rails on the roof. Strict proof of same is demanded. 11. Den?ed, as the work was not defective, Defendant has no evidence of any such leaks and if leaks are present, they are not the fault of Defendant. Strict proof of same is demanded. 12. Defendant is without sufficient knowledge, information or belief to form a respon?e as to what DOS has demanded of Plaintiff. To the extent an answer is required, denied. Strict proof of same is demanded. 13. Denied, as Plaintiff implies that corrective work was necessary by Defendant and in fact (nothing Defendant did needed to be corrected. Strict proof of same is demanded. 14. Denied, as Plaintiff implies that corrective work was necessary by Defendant and in fact) nothing Defendant did needed to be corrected, thus there was no refusal. Strict proof of same is demanded. 15. Admitted that Plaintiff s Exhibit B is a letter. The letter is a document which speaks for itself and contains legal conclusions to which no response is necessary. To the extent an answer is otherwise required, denied. Strict proof of same is demanded. 16. Adm*d that Plaintiff s Exhibit C is a letter. The letter is a document which speaks for itself and contains legal conclusions to which no response is necessary. 'To the extent an answer is otherwise required, denied. Strict proof of same is demanded. 17. Denied, as Plaintiff implies that corrective work was necessary by Defendant and in fact nothing Defendant did needed to be corrected. Strict proof of same is demanded. 18. Deni4 as Defendant was not in default and Defendant has no idea what work Plaintiff has performed. Strict proof of same is demanded. 19. Defendant is without sufficient knowledge, information or belief to form a response. To the extent an answer is required, denied. Strict proof of same is demanded. 20. Plaints Paragraph 20 is a legal conclusion to which no response is required. To thellextent an answer is required, denied. Strict proof of same is demanded. COUNT I-BREACH OF CONTRACT 21. Paragraphs 1-20 are incorporated by reference as if completely set forth herein. 22. Denied, as Defendant did not breach the Subcontract: A. Defendant properly and adequately performed its work on the project. Strict proof Of same is demanded. B. De,fendant satisfied its obligations and did not perform deficient or defective work.i, Strict proof of same is demanded. 23. Plaintiff's Paragraph 23 is a legal conclusion to which no response is required. To 4 extent an answer is required, denied. Strict proof of same is demanded. 24. Plain?iff s Paragraph 24 is a legal conclusion to which no response is required. To the extent an answer is required, denied. Strict proof of same is demanded. 25. Plaintiff s Paragraph 25 is a legal conclusion to which no response is required. To the extent an answer is required, denied. Strict proof of same is demanded. 26. Plaintiffs Paragraph 26 is a legal conclusion to which no response is required. To the extent an answer is required, denied. Strict proof of same is demanded. WH?REFORE, Defendant respectfully requests dismissal of Plaintiff s Complaint and any other such relief as may be deemed necessary. II 27. Paragraphs 1-26 are incorporated as if completely set forth herein. 28. Denied as Plaintiff's Paragraph 28 is incomprehensible. Strict proof of same is demanded. 29. Denied, as Defendant performed all necessary and required work. Strict proof of same i demanded. 30. Admit?ed that Defendant has not paid Plaintiff, as Defendant owes nothing to Plaintiff and no costs incurred by Plaintiff are attributable to Defendant. 31. Plaintiff s Paragraph 31 is a legal conclusion to which no response is required. To then extent an answer is required, denied. Strict proof of same is demanded. 32. Plaintiff's Paragraph 32 is a legal conclusion to which no response is required. To the extent an answer is required, denied. Strict proof of same is demanded. 33. Defendant is without sufficient knowledge, information or belief to form a To the extent an answer is required, denied. Strict proof of same is Defendant respectfully requests dismissal of Plaintiff s Complaint and any other such relief as may be deemed necessary. Respectfully submitted, tU ? - Brian W. Ulmer, Esquire, I.D. No. 80116 Attorney for Boss Insulation & Roofing, Inc. 23 North Derr Drive Lewisburg, PA 17837 (570) 522-1092 VERIFICATION Brian W. Ulmer, Esquire, hereby states that he is the attorney for Defendant, which is outside the jurisdiction of the Court and/or the verification could not be obtained within the time allowed for the filing on the pleading, that he is authorized to make this verification pursuant to Pa.R.C.P. 1024(c) and that statements made in the foregoing document are used upon information supplied by Defendant and are true and correct to the best of his knowledge, information and belief. Furthermore, it is counsel's intention s to substitute al verification from Defendant as soon as it is received by counsel. The undersigned understands that this statement is made subject to the penalties of 18 Pa.C.S. (Section 4904 relating to unsworn falsification to authorities. Date: Brian W. Ulmer, Esquire Attorney for Defendant HERRE BROS., INC., : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PA vs : DOCKET NO. 11-19 CIVIL BOSS INSULATION & ROOFING, INC., : CIVIL ACTION Defendant CERTIFICATE OF SERVICE I hereby certify that on this date I served a copy of the foregoing document upon the following by U.S. first class mail, postage prepaid: Steven M. Williams, Esquire 240 N',. 3d Street, 7`" Floor Harri;`burg, PA 17101 Date: `11'1 Brian W. Ulmer, Esquire, I.D. No. 80116 Attorney for Boss Insulation & Roofing, Inc. 23 North Derr Drive Lewisburg, PA 17837 (570) 522-1092 BRIAN W. ULMER, ESQ. 23 North Den Drive, Suite 4 Lewisburg, Pennsylvania 17837 Phone (570) 522-1092 Fax (570) 522-1093 July 30, 2011 Prothonotaryhs Office Cumberland County Courthouse One Courtho a Square Carlisle, PA 17013-3387 Re: Herre Br;os., Inc. v. Boss Insulation & Roofing, Inc. (No. 2011-19 Civil) To Whom It May Concern: Refe ence is made to the above-captioned case. Enclosed please find an original and one cop of an answer to be filed in this matter. Should you have any questions or need more information, please contact me. Sincerely yours, 6L k,,.cco,- Brian W. Ulmer, Esquire Enclosures) cc: Steven vl. Williams, Esquire (w/encl)