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HomeMy WebLinkAbout12-74401 {'ZDEC 11 A~ ~~ ~~- P~~t~SYL~Jp,~tl;~ B & B DESIGNED SYSTEMS , INC. IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA SCHRE IBER FOODS , INC . NO.~~ _ 6 ~7 ~y /// ~i Defendant Civil Term NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILLING 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 JUDGEMENT 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 PEOPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 ~ l ~t ~ .` IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA B & B DESIGNED SYSTEMS, INC. vs. SCHREIBER FOODS, INC. MECHANICS LIEN CLAIM AND NOW, this ~~'~ day of December, 2012, Claimant, B & B Designed Systems, Inc., by and through the undersigned counsel, files this claim against the improvements and property at Schreiber Foods, Inc., 208 Dykeman Road, Shippensburg, Pennsylvania 17257, for the debt due to claimant as a subcontractor for labor and materials furnished in electrical materials provided and installing in construction of the improvements therein, and in support makes the following statement: 1. The owner of the property located and situate at Schreiber Foods, Inc., 208 Dykeman Road, Shippensburg, Pennsylvania 17257 is Schreiber Foods, Inc., with corporate offices located at 425 Pine Street, Green Bay, Wisconsin 54301. 2. The improvements and the property that are subject to the claim are labor, services, equipment and material furnished to Schreiber Foods, Inc., Schreiber's Phase II Project, Process Electrical of the Shippensburg Plant Expansion Project at 208 Dykeman Road, Shippensburg, Pennsylvania 17257. STONESIFER ,~ ~ ~. 5-c~ ~~" ~~~ AND KELLEY Cam- / o ~3 ~ ~ A profesrioru[ Corporation ATTORNEYS AT LAW /~ 209 Broadway ~~ ~ 7'~ ~ v' X 2 Hanover, Pennsylvania 17331 a..~ ~1 717-G32-0163 ~t • . •1 , 3. The debt for which claim is made against this property arose as follows: a) The Claimant subcontracted with The Dennis Group, LLC, who contracted with the owner as construction manager for the erection of the owner's Shippensburg located at the subject project. b) The subcontract called for Claimant to supply and install IDF, HMI Panels and Stands, Packaging Cable Trays and Packaging Feeders for Phase II of the Plant Expansion Project for an agreed sum of Three Million Five Hundred Seven Thousand Three Hundred Eighty-Eight and 85/100 ($3,507..388.85) Dollars. A copy of the subcontract between construction manager and subcontractor is attached hereto as Exhibit "A". 4. Claimant supplied the agreed labor and materials, which were accepted by the construction manager and incorporated into the improvements of the Shippensburg Plant Expansion Project at the subject property. 5. Claimant has been paid Three Million Six Thousand Eight Hundred Eighty-Six and 53/100 ($3,006,886.53) toward the debt due for the agreed work, and there is due and owing on the entire contract Five Hundred Thousand Five Hundred Two and 32/100 ($500,502.32) Dollars. A copy of payment history is attached hereto as Exhibit "B". 6. The claimant completed its work (or last supplied materials) on August 9, 2012, which is less than six months before the filing of this claim. STONESIFER AND KELLEY a row„o.ta~ copo~~o~ ATTORNEYS AT LAW 209 Broadway Hanover, Pennsylvania 17331 717-632-0163 7. Written formal notice of the claimant's intention to file this claim was served on the owner on November 9, 2012, more than 30 days before the date of the filing of this claim, by Federal Express. A copy of the formal notice is attached as Exhibit «C„ Respectfully Submitted, STONESIFER AND KELLEY, P.C. << Sc t L. K le , Esqui e LD. #299 209 Broadway Hanover, PA 17331 (717) 632-0163 (telephone) (717) 632-8893 (fax) Attorney for Plaintiff, B & B Designed Systems, Inc. Josep Erb, Jr. E quire I.D. 7 69 209 Broadway Hanover, PA 17331 (717) 632-0163 (telephone) (717) 632-8893 (fax) Attorney for Plaintiff, B & B Designed Systems, Inc. STONESIFER AND KELLEY A Proferriowl Co poration ATTORNEYS AT LAW 209 Broadway Hanover, Pennsylvania 17331 717-632-0163 STONESIFER AND KELLEY A Irrofariona! Corporation ATTORNEYS AT LAW 209 Broadway Hanover, Pennsylvania 17331 717-632-0163 I verify that the statements made in Mechanics Lien Claim are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Date: ~ZI11 ~ L.-. B & B DESIGNED SYSTEMS, INC. .~"/` Y Robert .Parsons, President t THE DE1vrnS GROUP, r.~.c O RI GINA L 1537 Mniu titrret. SprinRRrld, MA01143 Change Order 1'h~nrr: 413.787.1785; I~nt; 413.757.1154 Relocate control conduits at L5 Capper B No: 3153-0410-13 SUBCON9'RAC'1'OR: B&B Designed Systems, Inc. 21334 Croghan Pike, Suile I Orbisonia, I'A 17243 1'Iroee: 814.259.3991 Fn.r: 814.259.3991 Gnnil: ParsonsbCBbsystemsinc.Com UA"I'F,: I -Sep- 12 1'ROJEC'I' NAME: Schreiber Phase 2 I'rojecl CIIANCE IN SCFIEDULC: None CIIANCE, ORDER DCTAIL: 13~@B COII 41: ltelocale cond'ol conduits al LS Capper B $2,792.77 Per RcF U CO's Total CO: $2,792.77 Original Sabconh•act Amount: S69,924.00 Previously Approved CO #1 $253,473.00 Previously Approved CO #2 $222, 113.09 Previously Approved CO #3 $24,009.00 Previously Approved CO #4 $2,736,764.00 Previously Approved CO #5 $7,021.00 Previously Approved CO #G $22,048.46 Previously Approved CO #7 $19,253.84 Previously Approved CO #3 $3,012.81 Previously Approved CO #9 $196,552.31 Previously Approved CO #10 $3,016.23 Previously Approved CO #11 $291.79 Previously Approved CO # 12 ($, ~,R~3 ~IS1 Amnunl Requested this CO: $2,792.77 REVISED SUBCONTRACT AMOUNT: 53,507,388.85 SEND INVOICES TO: The Dennis Croup, LLC, 1537 Mnin Street, Springfield, MA 01 IU3 Attention: Mnrinn Korniyenko Phone/FnxlEmnil: 413.787.1785! 413.787.1786 / korniyenkoQa dennisgrp.com Completed slgnahnes Gelorv indicate approval narl accep-mrce oJ'Ihis C!/ANGE ORDER. Applicntiorr for payment may not be merle nndl the slgued Change Order is returned m T he Uennis Croup, LLC. Aeeeptmree of rhis Cluurge Order is Gerard to the terms ojtlre or/giaal earmacG 'r~.l.~l. ~~ The Dennis Group, LLC ~ ~~ ~ ~~~ Suhcontrnctor EXHIBIT "A" PAGE 1 of 27 Schreiber's Phase II Pr©jec~ ~ ~ ~~ SEr 2 6 2011 ": PROCESS ELECTRICAL ~~~,~ CONTRACT NUMBER 3153-0410 THIS AGREEMENT made this 1" day of August, 2011 by and between THE DENNIS ENGINEERING GROUP, LLC, 1537 Main Street, Springfield, Massachusetts 01103 (the "Construction Manager") and B&B DESIGNED SYSTEMS, INC., 21334 Croghan Pike, Suite 1, Orbisonia, PA 17243 (the "Contractor"). The Construction Manager and the Contractor, in consideration of the covenants set forth herein, agree as follows: The Construction Manager has entered into a Construction Management Agreement with the Owner to provide site management, administrative and technical services solely for the benefit of the Owner and in furtherance of the Owner's interests. 1. THE woRx 1.1 The Construction Manager hereby enters into a contract with the Contractor whereby the Contractor shall: a. Perform the Work which is the total construction and related work, services and materials described in Schedule A hereto and required by the Contract and the Contract Documents as amended by additions, deletions and other revisions to the Work authorized by the Construction Manager in writing; b. Perform the Work required by tbe Contract and the Contract Documents to the reasonable satisfaction of the Construction Manager for the 208 Dykeman Road, Shippensburg, PA 17257; c. Do and fulfill everything indicated by the Contract; and d. Commence the Work by the Commencement Date described in Schedule A hereto and, subject to adjustment in Contract Time as provided for in the Contract Documents, work continuously and diligently without delay or interruption and substantially complete the Work by the Completion Date described in Schedule A hereto. 1.2 The Contractor accepts the relationship of trust and confidence established by this Contract and covenants with the Construction Manager that the Contractor will utilize its best skill, efforts and judgment in fiuthering the interests of the Construction Manager and the Owner in performing its obligations under the Contract Documents; to furnish efficient business administration and supervision; to furnish at all times as adequate supply of qualified workers and quality materials; and to perform the Work in the best way and most expeditious and efficient manner consistent with the interests of the Construction Manager and the Owner and to perform its obligations under the Contract Documents. The Construction Manager agrees to exercise best efforts to enable the Contractor to perform the Work in the best way and most expeditious manner by furnishing information, scheduling work and making payments in accordance with the requirements of the Contracts Documents. 1.3 The intent of the Contract Documents is to include all items necessary for proper execution and completion of the Work and to include the labor, products and services necessary for the proper performance of the Work by the Contractor so that the Work is fit for the purposes intended by the Owner and so that the Project, when completed, is a properly functional and constructed expansion of the Shippensburg manufacturing facility. I.4 The Contract Documents are not intended to specifically set out every operation of labor required to be performed and product required to be provided and item of material required to be supplied by the Contractor. 1.5 The Contract Documents are complementary, and what is required by any one shall be as binding as if required by all. Work not specified in the Contract Documents will be required if it is consistent with and is reasonably inferable from the Contract Documents as being necessary to complete the Work, including all work, whether or not shown or described, which reasonably may be inferred to be required to complete the Wvrk in accordance with all applicable laws, codes and professional standards. Words and abbreviations which have well-known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings unless defined herein or The ncnnis ins croup,l.I.C F-3153, Schreiber Shippensburg Expsnsion Phase II August 1, 2011 3153-0410-SC-process dectrical-BdcB.docx PAGE 2 of 27 modified by any provision of this Contract. 1.6 This Contract shall goverl all work performed by the Contractor for the Construction Manager and Owner, until the termination hereof. Schedule A, attached hereto and made a part of this Contract, contains the scope of work and all specific terms of the project and Work to be performed by the Contractor. In case of a conflict or inconsistency between the terms of this Contract and the terms of Schedule A, the terms of this Contract shall control. The terms of Schedule A may be amended, modified or changed in accordance with the procedures set forth in Section 9 of this Contract. 1.7 The Construction Manager and/or the Owner will provide to the Contractor reasonable, necessary, non-exclusive access to the property or facility designated in Section l.lb for the sole purpose of performing the Work The Contractor will at all times exercise its best efforts to coordinate the Work with the Construction Manager's designated representatives and other contractors or consultants providing services to the Construction Manager and Owner. The Construction Manager may, from time to time, schedule and coordinate the Contractor's Work in conjunction with the work of others, and the Contractor agrees to use its best efforts to comply strictly with the scheduling and coordination, 2. CONTRACT DOCUMENTS 2.1 The following are the Contract Documents referred to in this Agreement: a. Agreement between the Construction Manager and the Contractor, including Schedule A and Attachment 1 b. Drawings (as defined in Schedule A) a Specifications (as defined in Schedule A) 2.2 The Contract Documents form the entire contract between the Construction Manager and the Contractor. 2.3 If there is a conflict within the Contract Documents: a. The order of priority of documents from highest to lowest shall be: 1. Agreement between the Construction Manager and the Contractor, including Schedule A and Attachment 1, 2. Drawings, 3. Material and Finishing Schedules, 4. Supplementary Conditions, 5. Dennis Group Job Site Safety Plan 6. Division 1 of the Specifications, 7. Divisions 2 through 16 of the Specifications b. Later dated documents shall govern over earlier documents of the same type. 3. DEFINITIONS The following Definitions shall apply to all Contract Documents. a. Contract or Agreement The Contract is the Agreement between the Construction Manager on behalf of the Owner and the Contractor and the undertaking by these parties to perform their respective duties, responsibilities, and obligations as prescribed in the Contract Documents and represents the entire agreement between these parties. b. Contract Documents The Contract Documents consist of the Contract and those documents listed in Article 2 of the Agreement - CONT1tACT DOCUMENTS and amendments agreed upon between these parties. c. Owner The Owner is the person or entity identified as such in the Agreement. The term Owner means the Owner or the Owner's authorized agent or representative as designated to the Construction Manager in writing. The Dennis Engineering Group, LLC F-3153, Schreiber Shippansburg Expansion Phase Q August 1, 201 L 3153-0410-SC-process electrical-BBeB.docx Page 3 of 27 d. Construction Manager The Construction Manager is the person or entity identified as such in the Agreement. The term Construction Manager means the Construction Manager or the Construction Manager's authorized agent or representative as designated to the Contractor in writing. e. Contractor The Contractor is the person or entity identified as such in the Agreement. The term Contractor means the Contractor or the Contractor's authorized agent or representative as designated to the Construction Manager in writing. f. Subcontractor A Subcontractor is a person or entity having a direct contract with the Contractor to perform a part or parts of the Work, or to supply Products fabricated to a special design for the Work. g. Supplier A Supplier is a person or entity having a direct contract with the Contractor to supply Products not fabricated to a special design for the Work h. Project The Project means the total construction contemplated of expansion of the Shippensburg manufacturing facility of which the Work may be the whole or a part, including without limitation, all of the work required to be performed pursuant to the construction management contract entered into between the Owner and the Construction Manager. i. Work The Work mesas the total construction and related services defined in Article 1 of the Agreement -THE WORK -and required by the Contract and the Contract Documents as amended by additions, deletions and other revisions to the Work authorized by the Construction Manager in writing. j. Place of the Work and Project Site The Place of the Work and the Project Site is the designated site or location of the Work identified in Article I . lb of the Agreement -THE WORK. k. Product Product or Products means material, machinery, equipment, and fixtures forming the Work, but does not include machinery and equipment used to prepare, fabricate, convey, or erect the Work, which are referred to as construction machinery and equipment. 1. Provide Provide means to supply and install. m. Contract Price The Contract Price is the amount stipulated in Article 4 of the Agreement -CONTRACT PRICE. n. Contract Time The Contract Time is the time stipulated in Article 1 of the Agreement -THE WORK from the Commencement Date until the Completion Date for the Work. o. Working Day Working Day means a day other than a Sahrrday, Sunday, or a holiday that is observed by the construction industry in the area of the Place of the Work. p. Change Order A Change Order is a written amendment to the Contract prepared by or submitted to the Construction Manager by the Contractor and signed by the Construction Manager stating its reasonable determination of - The change in the Work; - The method of adjustment or the amount of the adjustment in the Contract Price, if any; and - The extent of the adjustment in the Contract Time, if any. Tlx Dennis Engineering Group, I,I.C F 3153, Schreiber Shippensburg Expansion Phase It August 1, 201 I 3153-0410-SC-proctss electrical-B&B.docx Page 4 of 27 4. CONTRACT PRICE The Contract Price and total amount payable by the Construction Manager to the Contractor for the performance of the Work, which includes all taxes, is: Sixty-Nine Thousand, Nine Hundred Twenty-Four Dollars and Zero Cents $69,924.00 All amounts are in US funds. 5. PERFORMANCE OF WORK 5.1 The laws of the Place of the Work shall govern the Work. 5.2 All Work and services shall be performed by qualified workers, subcontractors and suppliers. The Contractor shall furnish and pay for all necessary trade permits, licenses, approvals, certificates, labor, materials, services, supervision, scaffolding, tools, equipment, and any and all miscellaneous items and fees deemed necessary to fully perform and complete the Work, in cooperation with others employed by, through and/or under the Construction Manager, in a good and workmanlike manner satisfactory to the Construction Manager, Architect, Engineer and Owner. The Contractor shall also pay all sales, consumer use, and other similar taxes on materials and equipment supplied under or used in connection with this Contract. 5.3 The Contractor shall provide and pay for labor, Products, tools, construction machinery and equipment, water, heat, light, power, transportation, sales tax and other facilities and services necessary for the performance of the Work in accordance with the ContracK. 5.4 Products provided shall be new. Products that are not specified shall be of a quality consistent with those specified and their use acceptable to the Construction Manager and approved by the Construction Manager in writing. 5.5 The Contractor shall be responsible for the proper performance of the Work whether the Contract Documents and the design of the Work and the Project permit such performance or not. 5.6 The Contractor shall commence the Work by the Commencement Date and work continuously and diligently and without delay or intemtption so as to substantially complete the Work by no later than the Completion Date. The date of substantial completion of the Work shall be the date when all of the Work has been completed and accepted by the Construction Manager and the Owner as completed, functioning and properly available for beneficial use by the Owner with only motor aesthetic items to be completed, which items shalt be completed within thirty (30) days thereafter. The Contractor shall notify the Construction Manager whar the Work is substantially completed by issuing a written statement that the Work is substantially complete and ready for operation or beneficial use. The intent of the parties is that to achieve substantial completion, the only items remaining after substantial completion will relate to minor aesthetic matters, the correction of which will not interfere with the Construction Manager's or the Owner's use of the Work as completed. 5.7 Time is of the essence of the Contractor's obligations under this Contract, and the Contractor acknowledges that the Construction Manager and the Owner will suffer losses on account of the Contractor's failure to fully complete the Work in a timely fashion in accordance with this Contract 5.8 The Contractor shall perform the Work in accordance with the Contract and the Contract Documents and shall take all necessary precautions to protect the work of others and the property of the Construction Manager and the Owner from damage caused by the Contractor's operations. 5.9 The Contractor shall give all notices required under and comply with all applicable laws, by-laws, rules, regulations, resolutions, ordinances, orders of public authorities, specifications and requirements of any corporation, board, committee, commission, agency or other authority regulating or having jurisdiction over the Work and all city, county, state and federal statutes and regulations relating to the Work and shall correct any violations thereof to the reasonable satisfaction of the Construction Manager. The Dennis Engiaedin8 ~P, L1-C F-3153, Schrd'ber Shippensburg Expansion Phase II August 1, 2011 3153-0410-SC-process elxtrical-B&B.docx PAGE 5 of 27 5.10 If any of the work is required to be inspected or approved by any public authority, the Contractor shall cause such inspection or approval to be performed. No inspection performed or fails to be performed hereunder shall be a waiver of any of the Contractor's obligations hereunder, or be construed as an approval or acceptance of the Work or any part thereof. 5.11 The Contractor shall review the Contract Documents and shall report promptly to the Construction Manager in writing any error, inconsistency, or omission the Contractor may discover. The Contractor shall be responsible to the Construction Manager and the Owner for any damages suffered or costs incurred by the Construction Manager and the Owner resulting from such errors, inconsistencies, or omissions if they were discovered or reasonably discoverable by the Contractor and not reported to the Construction Manager and the Owner in writing. If the Contractor does discover any error, inconsistency, or omission in the Contract Documents, the Contractor shall not proceed with the work affected until the error, inconsistency, or omission has been rectified to the reasonable satisfaction of the Construction Manager. 5.12 The Contractor shall be responsible for verifying that the Contract Documents are in compliance with the applicable laws, ordinances, rules, regulations and codes relating to the Work, to the preservation of the public health and to construction safety, from the date of commencement to the date of completion of the Work. If the Contract Documents are at variance therewith, or if changes are made to the applicable Laws, ordinances, rules, regulations or codes which require modification of the Contract Documents, the Contractor shall modify the Contract Documents as required, deliver the modified Contract Documents to the Construction Manager for its written approval, and shall perform the Work in compliance with the applicable laws, ordinances, rules, regulations and codes relating to the Work, to the preservation of the public health and to construction safety. 5.13 If the Contractor performs work contrary to any laws, ordinances, Hiles, regulations, or codes, then the Contractor shall be responsible for and shall correct the violations thereof and shall pay to the Construction Manager the costs, expenses, and damages attributable to the failure to comply with the provisions of such laws, ordinances, rules, regulations, or codes. 5.14 Further, the Contractor shall, in performing the Work, comply with any applicable laws, ordinances, rules, regulations and orders of public authorities relating to the presence or use of hazardous substances at the Project Site, and before using, in connection with the Project, any material or substance included in any applicable hazardous substance list issued by a governmental agarcy or departmart having jurisdiction over the Project, the Contractor shall furnish the Construction Manager with a copy of the material safety data sheet (MSDS) or equivalart for such material or substance and shall submit to all appropriate governmental agencies or departmarts any information or documartation with respect to the use of such material or substance that is required by applicable laws, ordinances, rules or regulations to be so submitted. If the Contractor. a. Encounters toxic or hazardous substances or materials at the Place of the Work, or b. Has reasonable grounds to believe that toxic or hazardous substances or materials are present at the Place of the Work, then the Contractor shall: c. Take all reasonable steps to ensure that no person suffers injury, sickness, or death and that no property is injured or destroyed as a result of exposure to or the presence of the substances or materials, and d. Immediately report the facts to the Construction Manager in writing. 5.15 'The Contractor shall promptly submit shop drawings and samples to be approved as required by the Construction Manager, Architect, Engineer and Owner, prior to installation of any units, so as to perform the Work expeditiously and in a manner that will not cause delay in the progress of the Project 5.16 The Contractor shall submit shop drawings and samples to the Construction Manager to review in orderly sequence and sufficiently in advance so as to cause no delay in the Work or in the work of other contractors and subcontractors. Upon request of the Contractor or the Construction Manager, they jointly shall prepare a schedule of the dates for submission and return of shop drawings. The Contractor shall submit shop drawings in the form The Dennis Engineering Group, I.I.C F-3153, Schreiber Shipperssburg Expansion Phase II August 1, 20(1 3153-0410.SC-process electrical-B&B.docx PAGE 6 of 27 specified or as the Construction Manager may direct. Shop drawings that require approval of any legally constituted authority having jurisdiction shall be submitted to such authority by the Contractor for approval. The Contractor shall review all shop drawings prior to submission to the Construction Manager. The Contractor represents by this review that: the Contractor has determined and verified all field measurements and field construction conditions, or will do so; Product requirements; catalogue numbers; and similaz data and that the Contractor has checked and coordinated each shop drawing with the requirements of the Work and of the Contract Documents. The Contractor shall confirm this review of each shop drawing by stamp, date, and signature of the person responsible. At the time of submission the Contractor shall notify the Construction Manager in writing of any deviations in the shop drawings !rom the requirements of the Contract Documents. The Construction Manager will review and return shop drawings in accordance with the schedule agreed upon, or otherwise with reasonable promptness so as to cause no delay. The Construction Manager's review is for conformity to the design concept and for general arrangement only. The Construction Manager's review shall not relieve the Contractor of responsibility for errors or omissions in the shop drawings or for meeting all requirements of the Contract Documents unless the Construction Manager expressly notes the acceptance of a deviation on the shop drawings. Upon the Construction Manager's request, the Contractor shall revise and resubmit shop drawings that the Construction Manager rejects as inconsistent with the Contract Documents unless otherwise directed by the Construction Manager. The Contractor shall notify the Construction Manager in writing of any revisions to the resubmission other than those requested by the Construction Manager. 6. REPRESENTATIONS AND COVENANTS 6.1 The Contractor acknowledges that the Contractor has visited tbe Project Site and is familiar with the conditions under which the Work is to be performed, and fully understands the Work including the obligations and responsibilities which the Construction Manager has assumed toward the Owner pursuant to the Construction Management Agreement entered into between the Construction Manager and Owner. 6.2 The Contractor is knowledgeable and experienced in providing services comparable to the Work and it will at all times perform services in a professional and responsible manner consistent with fire standard of care, diligence and skill ordinarily exercised by similar professionals under similar circumstances in accordance with customarily accepted, good and sound professional practices and procedures. 6.3 It has all professional licenses, certifications and similar governmental authorizations required for contractors performing services such as the Work and will obtain all necessary licenses, building and other permits and similar authorizations from local, state and federal authorities required for it to perform the Work. 6.4 The Contractor shall employ a competent Supervisor and necessary assistants who will be in attendance at the Project site daily for substantially the entire day during performance of the Work. The Supervisor will represent the Contractor, and all written and verbal notices, directions, instructions and other communications given to the Supervisor shall be as binding on the Contractor as if given to the Contractor. The Contractor shall not replace the Supervisor without the consent of the Construction Manager. 6.5 The Contractor shall be responsible for receiving and safeguarding materials delivered to or for the Work by or for the Contractor. The Construction Manager and the Owner shall not be in any way responsible therefore notwithstanding the giving of any receipt for any of the said materials. 6.6 All equipment, goods and materials furnished and used in connection with the Work shall be (i) of good and merchantable quality; (ii) free from defects in design, materials and workmanship; (iii) possess the characteristics represented by any specifications described in Schedule A; (iv) fit for the purpose for which designed; (v) capable of meeting all applicable performance criteria, and (vi) new, unused and in original unbroken packaging upon delivery to 208 Dykeman Road, Shippensburg, PA 17257, unless otherwise agreed. 6.7 The Contractor shall accept all decisions made by the Construction Manager regarding the storage of the Contractor's materials and equipment at the job site (inside or outside the building), even if the location for storage is not desirable to the Contractor. If the Owner selects an area outside of a building for the storage of any materials or equipment and the existing ground conditions are such that a sand, gravel or wood base is required, as determined by the Construction Manager, the Contractor shall make all the necessary arrangements at its own expense for such temporary facilities including adequate covering. 6.8 All automobiles and other vehicles of the Contractor shall be parked in the parking area designated by the Construction Manager. The Dennis Engineering Group, I.I.C 6 August 1, 2011 F-3153, Schreiber Shippensbusg Expansion Phase li 3I53-0410-SC-process eixtrical-B&B.docx PAGE 7 of 27 6.9 During and upon the completion of the Work, the Contractor will: (i) keep the prenuses under its control clean, neat and orderly; (ii) protect all work in progress and all property under its control from damage; (iii) remove all trash, debris, waste materials, and rubbish, as well as its tools, equipment, machinery, surplus materials, from and around the prenuses, and (iv} remove and properly recycle or dispose of all hazardous materials (new, used or waste materials) in accordance with all applicable laws. If the Contractor fails to comply with this Paragraph, the Construction Manager may remedy any infraction at the Contractor's expense. If multiple violations of the abovementioned should occur, a penalty will be applied as outlined in section 19.15. 6.10 The Contractor shall make (or cause to be made) full payments when due of all compensation to the Contractor's Service Team, all vendors, and any other persons rendering services or furnishing materials in connections with this Contract. 6.11 The Contractor shall prepare and submit to the Construction Manager prior to the first application for payment, a construction schedule for the Work that indicates the timing of the major activities of the Work and provides sufficient detail of the critical events and their inter-relationship to demonstrate the Work will be performed in conformity with the Contract Time. The construction schedule shall not exceed the time limits current under the Contract Documents and shall be updated and revised at appropriate intervals as required by the conditions of the Work and Project and as requested by the Construction Manager. 6.12 During the performance of the Work, the Contractor shall comply with all of the Owner's rules and regulations and any and all federal, state and local laws, rules, regulations, and orders of public authority applicable to the Work and the premises where the Work is to be performed, including but not limited to, federal and state tax and social security laws, the Occupational Safety and Health Act, the Fair Labor Standards Act and the Americans and Disabilities Act. 6.13 The Contractor shall assemble for the Construction Manager's approval six (b) complete bound copies of all operating and maintenance instructions, manuals and data from all manufacturers of new equipment whose equipment is or will be installed in the Work Recommended spare part information shall be submitted as soon as possible and prior to substantial completion of the Work b.14 The Contractor shall maintain in good order at the site one record copy of the drawings, specifications, product data, samples and shop drawings. These documents shall be updated and marked-up to indicate "as built" conditions. All documents and drawings shall be wrapped, marked and delivered to the Construction Manager upon substantial completion of the Work. Final payment will be withheld pending submittal and the Construction Manager's acceptance of the "as built" documentation. 6.15 The Contractor shall maintain all cost, expense, payroll and related financial records and accounts pertaining to the Work performed by the Contractor under this Contract (the "Records' for a period of three years after the Work is paid for by the Construction Manager or until the conclusion of any litigation or administrative proceeding arising under or materially concerning this Contract or the Work. The Owner and/or the Construction Manager shall have the right to audit, copy and inspect the Records at all reasonable times during the course of the Work and for the period during which the Records are maintained under this paragraph. 7. CONTRACTOR'S SERVICES TEAM 7.1 The Contractor shall designate the name of its key project employee who will manage the Project and the Work and all other employees, agents, independent contractors and subcontractors who will perform the Work (collectively, the "Contractor's Services Team'. The Contractor's Services Team shall be subject to approval by the Construction Manager. The Contractor shall not subcontract or delegate the performance of any of its duties hereunder without the Construction Manager's written approval, which approval maybe withheld for any or no reason. 7.2 The Contractor warraats that all Work supplied by the Contractor's Service Team shall be supplied by personnel who are careful, skilled, experienced, licensed or certified as necessary, and competent in their respective trades or professions. 7.3 The Contractor must obtain the Construction Manager's prior written consent in order to remove or substitute its key project employee or any other member of the Contractor's Service Team or to add any person to the Contractor's Service Team prior to the completion of the Work The Dennis Engineering Group, I.L.C F-3153, Schreiber Shippensburg Expansion Phase 11 August 1, 2011 3153-0410-SC-process electrical-B&cB.docx PAGE 8 of 27 7.4 The Construction Manager may require removal of any individual named to the Contractor's Service Team at any time by written notification to the Contractor effective upon receipt. 8. PAYMENT NOTE: INVOICES MUST BE RECEIVED BY THE 25TH DAY OF EACH MONTH FOR PROCESSING WITHIN THE NEXT MONTH'S PAYMENT CYCLE. 8.1 The Construction Manager shall pay the Contractor and the Contractor shall accept the sum set forth in Section 4, in full payment for the proper performance of this Contract and all obligations of the Contractor under this Contract, subject to the additions and deductions provided for in Section 9 of this Contract. 8.2 Ia order to receive payment, the Contractor will submit a requisition for payment to the Construction Manager, in a form acceptable to the Construction Manager, for any and all pre-approved actual costs and expenses due for the Work immediately upon completion of the Work described in the requisitions for payment. The Contractor will withhold ten percent (10%) of the amount due in each invoice ("Retainage'~ until final completion of the Contractor's Services. The Construction Manager may withhold from each invoice, or from any single invoice for Work, sums for (i) invoice amounts which are not adequately supported; (ii) defective work or materials not corrected; (iii) the Contractor's failure to make proper payments to subcontractors, suppliers and the like; and/or (iv) if the Work, or any part of the Work, has not been completed in accordance with this Contract. ff the grounds for the Construction Manager's withholding payments under this Paragraph are removed, the Construction Manager will pay to the Contractor all withheld amounts; provided, however, that the Construction Manager will not be liable for interest or late penalty payments related to any retained or withheld amounts. 8.3 The Construction Manager will pay the Contractor, under the conditions stated in Paragraph 8.2, within thirty (30) days after the last day of each calendar month, provided that the Construction Manager has received payment from the Owner for the work of the Contractor included in its requisition for payment and provided further that the Contractor has complied with all the insurance and bonding requirements stated in the contract and contract documents and has provided, with the requisition for payment, a Conditional Waiver of Lien Rights and Acknwowledgement of Payment as provided in Attachment 1. The sum of the progress payments made to the Contractor shall never exceed ninety percent (90%) of the value of the Work performed and completed at the Project by the Contractor, less the withholding permitted by the Contract or the Contract Documents or by law or is equity, and provided that the unpaid balance of the Contract Price shall at all times be sufficient in the judgment of the Construction Manager to complete the Work and to pay any unpaid claims for which the Contractor, the Construction Manager or the Owner may be liable. 8.4 Provided that the Construction Manager has received final payment from the Owner for the work of the Contractor included in its final requisition for payment, the final payment of the amount reasonably determined by the Construction Manager as payable to the Contractor shall be made forty-five (45) days aRer the Work is fully completed and accepted by the Construction Manager and Owner, Less the withholding permitted by the Contract or the Contract Documents or by Iaw or in equity, provided that the requisition for final payment, in a form and substance satisfactory to the Construction Manager, is delivered to the Construction Manager no later than five (5} days after the Project is fully completed, provided there does not exist any unpaid claims for which the Contractor, the Construction Manager or the Owner may be liable, provided the Contractor delivers to tbe Construction Manager a sworn statement that all accounts for labor, subcontractors, products, construction machinery and equipment and other indebtedness which may have been incuaed by the Contractor in the performance of the Work and for which the Construction Manager or the Owner might in any way be held responsible have been paid in full, provided the Contractor has delivered to the Construction Manager all written documents, records, as-built drawings, certificates, guarantees and warranties received by or available to the Contractor, its subcontractors and suppliers and all maintenance and operating instructions, manuals and data for the machinery or equipment supplied or installed by the Contractor, and provided the Contractor shall provide a Final Conditional Waiver of Lien Rights and Acknowledgement of Payment in the form set forth in Attachment 1 for itself and each of its subcontractors and material suppliers which shall show that such entities acknowledge payment of all previous progress payments. 8.5 No payment shall be made to the Contractor on account of any requisition for payment submitted hereunder unless the Contractor shall have submitted to the Construction Manager satisfactory evidence of the payment by the Contractor of all indebtedness incurred by the Contractor for materials, equipment and labor included in any requisition for payment previously paid hereunder. The Dennis Engineering Group, LLC F-3I53, Schreiber Shipptnsburg Expansion Phase II August 1, 2011 3 (53-0410-SGprocess electrical-B&B.docx PAGE 9 of 27 8.6 The Construction Manager may cause the proceeds of any payment payable hereunder to the Contractor to be applied directly to the payment of any indebtedness owed by the Contractor to any party who has performed Work or supplied materials or equipment used in or in connection with the performance of this Contract provided such Work or such materials or equipment have been included in any requisition for payment paid hereunder and the Contractor has failed to pay such party promptly after the Contractor has received payment hereunder on account of such work, materials or equipment. 8.7 The submission by the Contractor of a requisition for final payment hereunder shall constitute a representation by the Contractor that no part of the Work included in such requisition for payment is affected by any title retention or security agreement made either by Contractor or by any party who has performed Work or has supplied materials or equipment used in or in connection with the performance of this Contract. 8.8 The Construction Manager may withhold from payments to the Contractor such amounts as the Construction Manager may reasonably determine are equal to the amount or estimate of any losses incurred or damages suffered, or to be incurred or suffered, by the Construction Manager or the Owner for which the Contractor may be responsible. 8.9 The Construction Manager may withhold from payments to the Contractor any sums required by law or in equity to satisfy any liens and written notices of lien against the Work for which the Contractor or any of its subcontractors or suppliers may be responsible and any third party monetary claims against the Contractor which are enforceable against the Construction Manager or the Owner or for which .the Construction Manager or the Owner may be responsible, phrs an additiona125% thereof for costs. 8.10 The Contractor shall pay, satisfy or vacate any liens from title to the Project for which the Contractor or any of its subcontractors or suppliers maybe responsible and any third party monetary claims against the Contractor which are enforceable against the Construction Manager or the Owner or for which the Conshuction Manager or the Owner may be responsible, and if the Contractor fails to do so, then the Construction Manger or the Owner may, but is not obliged to, do so and to pay money or to post security to pay, satisfy or vacate from title to the Project any such liens and monetary claims and the full amount of such payments made or security posted maybe withheld from payments to the Contractor. 8.11 The Construction Manager may withhold from payments to the Contractor an amount reasonably determined by the Construction Manager to be sufficient to cover the cost of completing the Work, including without limitation, a reasonable allowance determined by the Construction Manager to cover the cost of corrections to the Work performed by the Contractor that may be required under Article 11-CORRECTION OF WORK - WA,RR.AN'I'Y. 8.12 The Construction Manager may withhold from payments to the Contractor an amount reasonably determined by the Construction Manager to be sufficient to cover the cost of satisfying the Contractor's obligations to the Construction Manager and the Owner under the Contract and the Contract Documents, including without limitation, the Contractor's warranty obligations. 8.13 The Construction Manager may also withhold from payments to the Contractor all expenses incurred or to be incurred by the Construction Manager or the Owner in the enforcement or defense of claims brought under or pursuant to the Work, the Contract or the Contract Documents, including without limitation the amount of the Construction Manager's and the Owner's actual and estimated attorney fees and legal fees and disbursements, out of pocket expenses and the greater of the Construction Manager's and the Owner's overhead and administration charges referable thereto and 15% of the amount of any withholding made pursuant to the Contract. 8.14 The Construction Manager may at any time apply the amounts withheld under the Contract to satisfy the obligations of the Contractor to the Construction Manager or the Owner under the Contract or the Contract Documents. 8.I5 The Construction Manager may withhold the amounts permitted by the Contract until all of the Contractor's obligations to the Construction Manager and the Owner under the Contract or the Contract Documents have been performed, to the Construction Manager's reasonable satisfaction, until the expiration of all warranty periods for the Work and the Products. 8.16 No payment by the Construction Manager under the Contract nor partial or entire use or occupancy of the Work by the Construction Manager or the Owner or any other person shall constitute an acceptance of any portion of the Work or Products that are not in accordance with tbe requirements of the Contract Documents. 'Ihe Dennis Engineering Group, LL.C F-3153, Schnriber Shippenslxug Expa~uion Phase II August 1, 2011 3 (53-0410-SC-process electrical-B&B.docz PAGE 10 of 27 8.I7 The Construction Manager shall not be liable for payment of any requisition for payment submitted by the Contractor after uinety (90) calendar days from the completion of the Work included in the requisition for payment. 9. CHANGES IN WORK 9.1 The Construction Manager may at any time order a change in the Work, consisting of additions, deletions or other revisions to the Work, including a deletion of all of the remaining work under the Contract, by issuing a request for Change Order, and any increases or decreases in the Contract Price on account of any change in the Work shall, at the option of the Construction Manager, be either slump-sum price agreed upon between the Construction Manager and Contractor, or (i) for omitted work, the estimated value of the labor, materials and equipment omitted by Contractor and (ii) for additional or extra work, the cost of same. Cost shall be defined as the actual cost of labor, equipment rentals and materials necessary to perform the additional or extra work at the rates as described in Schedule A hereto, which rates are fully loaded, inclusive of all taxes, insurance, overhead and profit with no shift differential premium allowed for day, night or evening shifts. 9.2 On the receipt of a request for a Change Order from the Construction Manager, the Contractor shall present, in a form acceptable to the Construction Manager, a method of adjustment or an amount of adjustment in the Contract Price, if any, and the adjustment in the Contract Time, if any, for the proposed change in the Work. 9.3 The Contractor agrees to perform additional work and to provide additional products and to supply additional materials required by the Construction Manager for the same price or at the same pricing structure as for the same or similar work, products and materials in the original Contract Price, subject to the Construction Manager's and the Owner's entitlement to a lower price if available at the time. 9.4 Invoices on a time and material basis for additional work under a change order, shall be submitted complete with daily timesheets signed by the Construction Manager with labor charged per the above-mentioned rates and with material invoices showing amark-up on the actual substantiated cost of the materials only. 9.5 The Contractor and all its subcontractors and suppliers shall keep an accurate account of the costs of all changes in the Work along with all supporting documents such as receipts, invoices, purchase orders, tax and insurance records, payroll records, checks and other documents which shall be subject to audit by the Construction Manager or the Owner during the performance of the Work and thereafter for three years after the date of completion. Such records shall be presented in such a manner as the Construction Manager or the Owner directs. 9.6 The Contractor shall be responsible to obtain a written Change Order from the Construction Manager authorizing additional work or products and specifying the price thereof. The Contractor shall not perform a change in the Work without a Change Order signed by the Construction Manager. No additional work may be billed until a Change Order is executed by the Construction Manager and delivered to the Contractor. 9.7 The Construction Manager and the Owner shall not be liable for the price or value of any additional work performed or products provided or materials supplied on a contractual or quantum merit basis, or otherwise, if the Contractor has not obtained a Change Order prior to the commencement of additional work or the provision of additional products or the supply of additional materials. No act or omission on the part of the Construction Manager or the Owner shall be deemed to be a waiver of this provision which shall be strictly enforced notwithstanding any act or omission of the Construction Manager or Owner. 9.8 If the Construction Manager is not satisfied with the price quoted by Contractor with respect to any additional or extra work, the Construction Manager may engage another party to perform such additional or extra work and, in such event, Contractor shall cooperate fully with any such other party. The Contract Price shall not be increased on account of any additional or extra work or on account of any change in the Work unless such additional or extra work or such change in the Work has been authorized in writing by the Construction Manager. 10. PROTECTION OF PERSONS AND PROPERTY 10.1 Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. Contractor shall take all reasonable precautions for the safety of and shall provide all reasonable protection to prevent damage, injury or death to: (a) all employees on the Work and all other persons who may be affected thereby; (b) all the working materials and equipment to be incorporated therein, whether in The Dencus Eogmeenng Group, I,LC 10 August 1, 2011 F-3153, Schrd'ber Shippensburg Expansion Phase I[ 3153-0410.SC-process electrical-8&B.docx PAGE 11 of 27 storage on or off the site, under the care, custody or control of Contractor or any of its subcontractors; and (c) the property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of constnlckion. Contractor shall give all notices and comply with all applicable laws, ordinances, rules, regulations and lawful orders of any public authority bearing on the safety of persons or property or their protection from damage, injury or loss. Contractor shall erect and maintain, as required by existing conditions and progress of the work, all reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent utilities. 10.2 The Contractor shall be solely responsible for construction safety at the Place of the Work and for compliance with the rules, regulations, and practices required by the applicable construction health and safety legislation and shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Work as described in The Dennis Group -Job Site Safety Plan issued November 2007. 10.3 The Contractor shall provide, erect and maintain proper warning signals, signs, lights, barricades, fences, flag persons and police supervision, if required, on and in respect of the Work, and shall take all other necessary precautions for the protection of the Work and the safety of the public, the workers and others as required in carrying out the Work, all in conformance with the applicable construction health and safety legislation and any revisions thereto. 10.4 The Contractor shall have the sole responsibility for the design, erection, operation, maintenance, and removal of temporary supports, structures and facilities and the design and execution of construction methods required in their use. The Contractor shall engage and pay for registered professional engineering personnel skilled in the appropriate disciplines to perform those fimctions referred to herein where required by law or by the Contract Documents and in all cases where such temporary supports, structures, and facilities and their method of construction are of such a nature that professional engincering skill is required to produce safe and satisfactory results. 10.5 The Contractor shall protect the Work and the Owner's property and property adjacent to the Place of the Work from damage that may arise as the result of the Contractor's operations under the Contract, and shall be responsible for any such damage. 10.6 Should the Contractor in the performance of the Contract damage the Work, the Owner's property, or property adjacent to the Place of the Work, the Contractor shall be responsible for making good such damage at the Contractor's expense. 10.7 Should damage occur to the Work or the Owner's property for which the Contractor is not responsible, as provided herein, the Contractor shall make good such damage to the Work and, if the Owner so directs, to the Owner's property. The Contract Price and Contract Time shall be adjusted. 10.8 If the Contractor has caused damage to the work of another contractor on the Project, the Contractor agrees upon due notice to settle with the other contractor by negotiation or arbitration. If the other contractor makes a claim against the Owner or the Construction Manager on account of damage alleged to have been so sustained, the Owner or the Construction Manager shall notify the Contractor and may require the Contractor to defend the action at the Contractor's expense. The Contractor shall satisfy a final order or judgment against the Owner or the Construction Manager and pay the costs incurred by the Owner or the Construction Manager arising from such action. If the Contractor becomes liable to pay or satisfy a final order, judgment, or award against the Owner or the Construction Manager, then the Contractor, upon undertaking to indemnify the Owner and the Construction Manager against any and all liability for costs, shall have the right to appeal in the name of the Owner or the Construction Manager such final order or judgment to any and all courts of competent jurisdiction. 11. CORRECTION OF WORK -WARRANTY 11.1 Contractor warrants to the Owner and the Construction Manager that all materials and equipment incorporated in the Work shall be new and that all Work shall be of good quality, free from faults and defects and in conformance with the requirements of the Contract Documents. The Construction Manager shall have the right to inspect the Work and to reject portions of the Work which in its opinion is not is accordance with the requirements of the Contract Documents, and Contractor shall promptly replace rejected portions of the Work in a manner satisfactory to the Construction Manager. The Contractor shall cornet Work that does not conform to the Contract Documents immediately so as not to delay the Completion Date. The Construction Manager is authorized to require the The Dennis Engineering Group, LLC 11 August 1, 20l 1 P-3153, Schreiber Shippeosburg Expansion Phase II 3153-0410-SC-process electrical-B&B.docx PAGE 12 of 27 Contractor to perform work, which in the Construction Manager's opinion is in accordance with the requirements of the Contract Documents. This warranty shall directly benefit the Construction Manager and the Owner. 11.2 The Construction Manager will have authority to require the Contractor to perform work, which in the Construction Manager's opinion is irl accordance with the requirements of the Contract Documents. During the progress of the Work, the Construction Manager may furnish Supplemental Instructions to the Contractor and the Contractor will comply with same. 11.3 The warranty periods for the Work and under the Contract are the longer of one year from the date of the Construction Manager's final payment to Contractor of all sums due for the Work and the warranty periods provided to the Contractor, or to the Construction Manager or Owner, by the Product manufacturers far each Product supplied, installed or provided. 11.4 Upon the Construction Manager's or the Owner's notice and access for Contractor to the premises and/or equipment or materials at issue, Contractor agrees to (i) re-execute, at no additional cost to Owner, any Work which was not performed in compliance with this Contract and/or Schedule A; (ii) remedy, at no additional cost to Owner, any defects due to faulty materials or workmanship (including, if applicable, the repair or replacement of any materials, goods, or equipment supplied as part of the Work), which appear within the warranty period as stated in Paragraph 11.3; and (iii) repair, replace or restore, at no additional cost to Owner, any other goods, equipment, materials, fixtures, equipment or other items which are injured or damaged by Contractor's noncompliant or defective Work, materials, goods or equipment. If Contractor does not begin to correct any deficiency within a reasonable time from the Owner's notice, the Owner shall have the right to re-perform the Services with its own labor or by contract with others and to repair or replace any defective or noncompliant goods, materials or equipment and to charge Contractor with all reasonable expenses and costs relating thereto. The Owner's rights under this Paragraph are nonexclusive and are in addition to the Owner's other rights in law and equity. 11.5 Nothing contained herein shall be construed to establish a period of limitation with respect to any of the obligations of the Contractor under this agreement including, without limitation, the Contractor's obligation to comply with the Contrast Documents or the time within which proceedings maybe commenced to establish the Contractor's liability under the Contract. 11.6 The Contractor shall promptly remove from the Place of the Work and replace or re-execute defective work that has been rejected by the Construction Manager or the Owner as failing to conform to the Contract Documents whether or not the defective work has been incorporated in the Work and whether or not the defect is the result of poor workmanship, use of defective products, or damage through carelessness or other act or omission of the Contractor. 11.7 The Contractor shall make good promptly other Contractors work destroyed or damaged by such removals or replacements at the Contractor's expense. 11.8 If in the opinion of the Construction Manager it is not expedient to correct defective work or work not performed as provided in the Contract Documents, the Construction Manager may deduct from the amount otherwise due to the Contractor the difference in value between the work as performed and that called for by the Contract Documents. 11.9 The Contractor shall correct promptly, at the Contractor's expense for labor, materials and equipment, all defects and deficiencies in the Work that appear prior to and during the warranty periods specified in the Contract and in the Contract Documents. 11.10 The Construction Manager or the Owner shall promptly give the Contractor notice in writing of observed defects and deficiencies that occur during the warranty periods. 11.11 The Contractor shall correct or pay for the cost of correcting all defects and deficiencies in the Work and pay for all damages suffered by the Construction Manager or the Owner as a result of such defects and deficiencies in the Work, including without limitation those damages resulting from corrections made under the requirements of the Contract. l I.12 T'he Construction Manager may deduct from amounts otherwise payable to the Contractor, all amounts paid or payable by the Construction Manager or the Owner to satisfy the Contractor's obligations to the Construction Manager or the Owner under the Contract, including without limitation, the Contractor's warranty obligations. The Donis Engineering Gnwp, LI.C 12 August 1, 2011 F-3153, Schreiber 5hippensbmg Expansion Phase lI 3153-0410-SC-process electrical-BBcB.docz PAGE 13 of 27 . ' 11.13 The Contractor shall be responsible for obtaining Product warranties on behalf of the Owner from the manufacturers of the Products supplied, installed or provided. These Product warranties shall be issued by the manufacturer to the benefit of, and in the name of, the Owner and the Construction Manager and shall supplement the warranty provided by the Contractor to the Owner and the Construction Manager. 12. INDEMNIFICATION 12.1 Contractor shall, to the fullest extent permitted by law or in equity, and to the extent that any such claims, losses, liabilities or expenses are caused by auy act or omission of Contractor, or anyone directly, or indirectly employed by the Contractor, or anyone whose acts the Contractor maybe liable for, indemnify and hold harmless the Constriction Manager, Owner, Architect, Engineer and their employees, agents and other persons for whom at law or in equity they are responsible, from and against any and all claims, losses, liabilities and expenses, including any attorney's fees and legal fees and disbursements arising out of or in nay manner caused by, connected with, or resulting from, the Contractor's negligence in the performance of this Contract or the presence of the Contractor or the Contractor's employees, agents and other persons for whom at law or in equity it is responsible on the Project. Without limiting the generality of the foregoing, the Contractor shall indemnify and hold harmless the Construction Manager, Owner, Architect, Engineer and their employees, agents and other persons for whom at law or in equity they are responsible fiom and against all claims, demands, losses, costs, damages, actions, suits or proceedings by third parties that arise out of, or are attributable to, the Contractor's performance of the Contract, the Work performed or the Products provided. 13. WAIVER OF CLAIMS 13.1 As of the date of the final payment to the Contractor, the Contractor expressly waives and releases the Owner and the Construction Manager from all claims against the Owner and the Construction Manager, including without limitation, all claims for payment and all claims that may arise from the negligence of or breach of contract by the Construction Manager or the Owner, except those claims made in writing to tbe Owner and the Construction Manager prior to such final payment. 14. DISPUTE RESOLUTION 14.1 All claims for damage made against the Construction Manager or the Owner during the performance of the Work shall be made in writing to the party liable within a reasonable time after the first observance of such damage and if undisputed shall be confirmed by Change Order. Disputed claims shall be resolved as set out in this Article. 14.2 The Construction Manager and Contractor shall make all reasonable efforts to resolve any disputes which arise by amicable negotiations and agree to provide, without prejudice, frank, candid and timely disclosure of relevant facts, information and documents to facilitate these negotiations. 14.3 Within a reasonable time after a claim, dispute or other matter in question herein has arisen, the Construction Manager or the Contractor may mutually agree to request a Project Mediator to assist the parties to reach agreement on any unresolved dispute. The mediated negotiations shall be conducted in accordance with the latest edition of the Construction Industry Mediation Rules of the American Arbitration Association. la no event shall the request for mediation be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations or in equity. 14.4 Ifnon-binding mediation fails to solve a claim, dispute or other matter in question herein, the parties may mutually agree to refer the claim, dispute or other matter in question herein to be finally resolved by arbitration under the latest edition of the Construction Industry Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted in the jurisdiction of the Place of the Work 14.5 The award rendered by the arbitrator(s) shall be final and judgment may be entered upon it in accordance with applicable law in the court having jurisdiction at the Place of the Work. 15. INSURANCE AND BONDS 15.1 Until the Work is fully completed and accepted by the Construction Manager and Owner, the Contractor shall pay for and maintain with companies satisfactory to the Construction Manager, worker's compensation, employer's liability and comprehensive general liability insurance, including insurance coverage for premises operations, The Dma~s ~g~~ng ~uP> L~.,C 13 August 1, 20l t F-3153, Schroiber Shippensbuig Facpe~ion Phase Il 3153-0410.SC-process elxtrical-B&cB.dcez PAGE 14 of 27 independent contractors, completed operations, contractual liability, personal injury liability, property damage (broad form), bodily injury (occurrence in lieu of accident coverage), XCU hazards liability and automobile liability for all owned, used and hired automobiles, in the following amounts: (i) Worker's Compensation Iusurance The Statutory Maximum; (ii) Employer's Liability Insurance $5,000,000/each person (iii) Public Liability and Automobile Liability Insurance Personal Injury $5,000,000/total liability coverage $1,000,000/each occurrence Property Damage $5,000,000/total liability coverage $1,000,000/each occurrence 15.2 Any insurance policy required to be maintained hereunder by the Contractor shall provide that the Construction Manager shall be notified in writing within thirty (30) days of the effective date of any change in or cancellation of such policy and shall recite the name of the Project and the location of the Project Site. 15.3 The Contractor shall, before commencing the Work, deliver to the Construction Manager Certificates of Insurance, in form and substance satisfactory to the Construction Manager, indicating that the Contractor is in compliance with the insurance requirements set forth herein and that the contractual liability insurance of the Contractor covers the indemnification provision set forth in Article 12. Furthermore the Contractor shall, before commencing the Work, pay for any and all Bonds as required in conjunction with the Work to be performed by the Contractor, and cause the Bonds to be issued and delivered to the Construction Manager. 15.4 The Contractor shall provide the aforesaid insurance insuring the Owner, the Construction Manager, and their agents and employees by obtaining either (i) an endorsement to the Contractor's insurance policy designating the Owner's and the Construction Manager's agents and employees as additional insured, or (ii) obtaining an Owner and the Constriction Manager's protective liability insurance policy designating the Owner, the Construction Manager, and their agents and employees as the additional insured. 15.5 The Construction Manager and the Contractor do not waive any rights against each other and the agents and employees, each or the other. The Contractor shall be subject to the Absolute DB Liability even if the Construction Manager or the Owner's insurance covers the loss, such Owner and the Construction Manager's insurance being considered "access" coverage. 15.6 Note that, until accepted for beneficial use by the Owner, the Contractor is responsible for the loss of or damage to all materials, equipment, tools or other items owned or rented by the Contractor or its agents whether located off site, on site or in transit. 16. COOPERATION AND LABOR POLICY 16.1 Contractor shall not employ any labor which shall interfere either with the execution of any work at the Project or with labor harmony at the Project Site. Contractor shall properly connect and coordinate the Work with the work of other parties employed by, through or under the Owner or the Construction Manager. Contractor shall not, in performing this Contract, discriminate against any patty because of race, creed, color, religion, sex or national origin. 17. WASTE REMOVAL 17.1 Contractor shall at all times keep the Project Site tidy and free from accumulation of waste material and debris, and shall promptly remove from the Project Site, any accumulation of waste material and debris that arises out of the operations of the Contractor. At the completion of the Work, the Contractor shall remove from and about the Project Site the Contractor's tools, construction equipment, machinery, surplus materials, waste materials and debris in accordance with alI applicable laws and regulations, and leave its area of the Project Site broom clean. 18. FORCE MAJEURE 18.1 If Contractor is delayed in the performance of the Work by any act, neglect or default of the Construction Manager or Owner, or of any other party employed by, through or under the Construction Manager or Owner, or by any damage caused by fire, lightning, earthquake, cyclone, or other such cause completely beyond the control of Contractor, then the Completion Date shall be extended for a period equivalent to the time lost by reason of any of The Dennis Engineering Group. I.LC 14 August 1, 20l 1 F-3153, Schreiber Shippensburg Expansion Phase [I 3153-0410-SC-process elxtrical-BBcB.docx PAGE 15 of 27 such cause. Contractor shall not be entitled to an extension of time for any delay unless Contractor gives the Construction Manager written notice of delay within f ve (5) days after the commencement of delay. 18.2 Without limiting the generality of the foregoing, the incidents of default set out in Article 19 -CONSTRUCTION MANAGER'S REMEDIES -shall be deemed to be causes that are within acrd not beyond the Contractor's control and shall not entitle the Contractor to an extension of the Contract Time or the Completion Date. 18.3 The Contractor shall not be entitled to payment of any costs incurred or damages suffered by it as a result of any delay, and its sole remedy shall be an extension of the Completion Date or the Contract Time if it is entitled thereto. 19. CONSTRUCTION MANAGER'S REMEDIES 19.1 In the event that there exists a reasonable indication in the judgment of the Construction Manager that Contractor will not be able to fully complete the Work by the Completion Date, the Construction Manager may, upon three (3) Working Days' written notice to Contractor and without prejudice to any other remedy the Construction Manager may have, order Contractor to prosecute the Work on an overtime basis and Contractor shall, at its own expense, promptly commence and continue to perform the Work on such basis to the extent necessary to cause the Work to be fully completed in a timely fashion in accordance with this Contract. 19.2 If Contractor fails to perform the Work diligently and properly or fails to perform any provisions set forth in this Contract or Contract Documents, the Construction Manager may, upon three (3) Working Days written notice to Contractor and without prejudice to any other remedy the Construction Manager may have, make good such deficiency of Contractor and deduct the cost thereof from any payments then or thereafter due Contractor hereunder. Further, if Contractor fails to perform any provision set forth in this Contract, the Construction Manager may, upon three (3) Working Days written notice to Contractor and without prejudice to any other remedy the Construction Manager may have, stop the Work of Contractor, take possession of all materials, equipment, tools and machinery at the Project Site owned by Contractor and finish the Work by whatever method the Construction Manager may deem expedient. 19.3 If the Contractor should be adjudged banlaupt, or make a general assignment for the benefit of creditors because of the Contractor's insolvency, or if a receiver or monitor is appointed because of the Contractor's insolvency, the Construction Manager may, without prejudice to any other right or remedy the Construction Manager may have, by giving the Contractor or receiver or monitor or trustee in barilQUptcy notice in writing, terminate the Contract. 19.4 If the Contractor fails to perform any of its obligations under Contract or the Contract Documents, including without limitatioq neglecting to prosecute the Work properly or within the time allotted to the Contractor for doing so or causing stoppage or delay of or interference with the Work or other work on the Project, then the Construction Manager may, without prejudice to any other right or remedy the Construction Manager may have, notify the Contractor in writing that the Contractor is in default of the Contractor's obligations and instruct the Contractor to correct the default in the three (3) Working Days immediately following tbe receipt of such notice, unless the Construction Manager is of the opinion that it is appropriate in the circumstances for the Contractor or the Construction Manager to immediately correct the default, in which case the Construction Manager may direct the Contractor to do so immediately or the Construction Manager may itself correct the default without notice to the Contractor and the Contractor's liability to the Construction Manager shall be determined as if the three (3) Working Days notice was in fact given to the Contractor and the Contractor failed to correct or commence correction within the notice period. 19.5 If the Contractor is delayed in the performance of the Work due to strikes, lock-outs, work stoppages, work interruption, Iabor disputes, picketing, non-availability of materials, equipment or labor, or to any other reason whatsoever (excluding an act of the Construction Manager contrary to the provisions of the Contract Documents), including without limitatioq its own forces labor disputes, strikes or lock-outs (including labor disputes, strikes or lock-outs decreed or recommended for its members by a recognized contractors association of which the Contractor is a member or to which the Contractor is otherwise bound), then the Construction Manager may, without prejudice to any other right or remedy the Construction Manager may have, notify the Contractor in writing that the Contractor is in default of the Contractor's obligations and instruct the Contractor to correct the default in the three (3) Working Days immediately following the receipt of such notice, unless the Construction Manager is of the opinion that it is appropriate is the circumstances for the Contractor or the Construction Manager to immediately correct tbe default, in which case the Construction Manager may direct the Contractor to do so immediately or the Construction Manager may itself correct the default without notice to the Contractor and the Contractor's liability to the The Damis Engineering Group, LLC 15 August 1, 2011 F-3153, Scht+eiber Shippeasburg Expansion Phase II 3153-0410-SC-process electrical-B&B.docz PAGE 16 of 27 Construction Manager shall be determined as if the three (3) Working Days notice was in fact given to the Contractor and the Contractor failed to correct or commence correction within the notice period. 19.6 If the Contractor fails to correct the default in the time specified or subsequently agreed upon, then without prejudice to any other right or remedy the Construction Manager may have, the Construction Manager rnay: a. Correct such default and deduct the cost thereof, including without limitation, the withholding permitted by the Contract, the Contract Documents, by law or in equity from any payment then or thereafter due the Contractor, and/or b. Terminate the Contractor's right to continue with the Work in whole or in part and/or terminate the Contract. 19.7 If the Construction Manager terminates the Contractor's right to continue with the Work or terminates the Contract as provided in the Contract or by law or in equity, then the Construction Manager shall be entitled to: a. Take possession of the Work and Products, utilize the construction machinery aad equipment and subject to the rights of third parties, finish the Work by whatever method the Construction Manager may consider expedient, and b. Withhold further payment to the Contractor, including without limitation, retain the withholding permitted by the Contract or the Contract Documents or by law or in equity from any payment then or thereafter due the Contractor, and c. Charge the Contractor for the cost of completing the Work, including without limitation a reasonable allowance determined by the Construction Manager to be sufficient to cover the cost of corrections to the Work performed or to be performed by the Contractor that are or may be required under Article 11 -CORRECTION OF WORK - WARRANTY, and d. On the expiration of the warranty periods, charge the Contractor the amount by which the cost of comecdons to the Contractor's work under Article 11 -WARRANTY exceeds the allowance provided for such corrections, if any, and e. Payment by the Contractor of the Construction Manager's and the Owner's damages suffered and losses and expenses incurred in consequence of the default, including without limitation, the amount of the Construction Manager's and the Owner's attorney and client legal fees and disbursements, out of pocket expenses and the greater of the Construction Manager's and the Owner's overhead and administration charges referable thereto and 15% of the amount of the damages suffered and losses and expenses incurred. 19.8 The Contractor's obligation under the Contract as to quality, correction and warranty of the Work performed by the Contractor up to the time of termination and thereafter shall continue in force after such termination. 19.9 If the Contractor fails to perform any of its obligations under Contract or the Contract Documents, then the Contractor shall pay to the Construction Manager and Owner any damages suffered and losses and expenses incurred by the Construction Manager and Owner in consequence of the Contractor's failure to perform, including without limitation, the amount of the Construction Manager's and the Owner's solicitor and client legal fees and disbursements, out of pocket expenses and the greater of the Construction Manager's and the Owner's overhead and administration charges referable thereto and 15% of the amount of the damages suffered and losses and expenses incurred. 19.10 Notwithstanding anything set forth above to the contrary, the damages suffered by the Construction Manager or Owner for loss of use of the Project prior to completion of the Work shall be paid or allowed by the Contractor to the Construction Manager byway of liquidated damages as hereinafter set out and not otherwise. 19.11 If the Contractor fails to complete the Work by the Completion Date or if the Contractor fails to complete the Stages of the Work described in Schedule A hereto by the completion dates described in Schedule A hereto, then the Contractor shall pay or allow to the Construction Manager for damages for loss of use of the Project for the period of time prior to completion of the Work by the Contractor, the sum described in Schedule A hereto as liquidated damages and not as a penalty for the period during which the said Work shall so remain or have remained incomplete as a genuine pre-estimate of the damages which the Construction Manager and Owner expects to incur T~'Q I)rnnis ~-g8 ~uP> I.L.C 16 August I, 2011 F-3153, Schreiber Shippensburg Facpansion Phase II 3153-0410-SGprocess electrical-BdtB.docx PAGE 17 of 27 for such loss of use of the Project during this time period, which genuine pre-estimate the Contractor accepts as accurate and incontrovertible. The Construction Manager may deduct such liquidated damages from any money due or to become due to the Contractor wider this Contract. 19.12 In addition to the right of the Construction Manager to stop the Work of Contractor for cause as set forth herein, the Construction Manager may, upon three (3) Working Days written notice to Contractor, terminate this Contract without cause. In the event that the Construction Manager terminates this Contract as set forth herein without cause, the Construction Manager shall promptly pay to Contractor a reasonable portion of the Contract Price, less the aggregate of all payments made hereunder by the Construction Manager on account of the Work performed prior to the date of such termination and Contractor shall, concurrently with the payment by the Construction Manager to Contractor of the amount set forth herein above, sell, assign, transfer and otherwise set over unto the Construction Manager any and all materials, equipment, supplies, drawings, contractual rights and other property acquired and/or produced by Contractor in connection with the Work 19.13 If Contractor fails to resolve all punchlist items within 60 days of substantial completion of the Work, the Construction Manager will reduce Contractor's contract amount by 10%. If Contractor fails to perform the Work as defined and agreed upon in the contract documents, and the Construction Manager is required by the Owner to return to the Project Site to supervise Contractor in remedying the deficient work, Contractor shall be responsible for all costs incurred by the Construction Manager in connection with this supervision, including, without limitation, out of pocket expenses, travel expenses, administrative fees, and Construction Management fees. 19.14 If the Work of the Contractor is found to be deficient by the Occupational Safety and Health Administration, or any other local or national authority, the Construction Manager may, at its option, deduct any fines, levies or associated costs from the Contract Price or upon written notice to Contractor, terminate this Contract. In the event that the Construction Manager terminates this Contract as set forth herein, the Construction Manager shall promptly pay to Contractor a reasonable portion of the Contract Price, less the aggregate of all payments made hereunder by the Construction Manager on account of tbe Work performed prior to the date of such termination and any costs incurred by the Construction Manager associated with the aforementioned deficiency. Contractor shall, concurrently with the payment by the Construction Manager to Contractor of the amount set forth herein above, sell, assign, transfer and otherwise set over unto the Construction Manager any and all materials, equipment, supplies, drawings, contractual rights and other property acquired and/or produced by Contractor in connection with the Work. 19.I5 Contractor's compliance with clean up, damage control, trash removal and all premise care as outlined under section 6.9, and any Contractor Work Rules and safety rules and regulations required by the Owner, is mandatory. Daily random inspections may occur. If the Contractor fails to comply with these rules and regulations, the following penalties will be applied: a. Any non-compliance with premise care, Contractor Work Rules and safety rules and regulations will be brought to the attention of the field supervisor as a written warning for his employee's first non-compliance. The written warning will be provided by means of the daily audit. b. A second violation by the same employee will also be provided in writing and a deductive change order for $1,000 will be imposed. c. A third violation by the same employee will warrant dismissal of that employee from the jobsite, and a deductive change order for 2% of the contract will be applied. d. Five cumulative penalties of any level will warrant the Contractor be removed from the site and no longer do work at the Owner's facility. The audit sheet will be provided to the Construction Manager, Contractor's management, the field supervisor and Owner's management. 20. SUBLETTING AND ASSIGNMENT 20.1 The Contractor shall not assign the Contract or any portion thereof or any amounts due or to become due hereunder, or subcontract all or any portion of the work, without the written consent of the Construction Manager, which consent may be withheld for any reason or no reason. The Dennis Engineering Group, LI-C 17 August 1, 201 I F-3153, Schreiber ShippensMrrg Expansion Phase II 3153-0410-SC-process electrical-BBcB.docx PAGE 18 of 27 21. CONFIDENTIALITY 21.1 Contractor shall treat and maintain as confidential all information and not use or disclose to others during the term of this Agreement and for five (5) years thereafter, except as necessary to perform the Work hereunder, any information (including any technical information, experience or data) regarding the Owner's products, plans, programs, plants, processing, costs, equipment, operations or customers, and/or the chemical composition or quantity of wastes emanating from the Owner's facilities, which may be disclosed to, or come within knowledge of Contractor or its agents in the performance of this Agreement, without the prior written consent of the Owner. The provisions of this Article shall not apply to any information that Contractor or its agents establish: a. Has been published and is or becomes part of the public domain other than by acts or omissions of Contractor or its agents; b. Has been furnished or made known to Contractor or its agents by third parties (other than those acting directly or indirectly for or on the behalf of Owner or the Construction Manager) as a matter of legal right and without violating any confidentiality obligations of such third parties to Owner, c. Was in possession of Contractor, or its agents prior to disclosure by Owner or the Construction Manager and was not acquired by Contractor or its agents directly or indirectly from Owner or the Construction Manager, or d. If required by law or any governmental or regulatory authority to be disclosed (provided that prior to any such disclosure, Contractor or its agents shall give Owner or the Construction Manager no less than three (3) business days prior written notice of its intent to disclose and the reasons for disclosure). 22. RECEIPT OF AND ADDRESSES FOR NOTICES, REPORTS, APPROVALS AND INSTRUCTIONS All notices, reports, approvals and instructions given or required under the Contract shall be is writing, unless otherwise stated in the Contract, and shall be delivered by personal delivery, courier, facsimile transmission, registered mail or regular mail to the Construction Manager or Contractor at their addresses and fax numbers set out in the Contract. Written notices, reports, approvals and instructions between the parties shall be considered to have been received by the addressee on the date of delivery, same day courier, dispatch or facsimile transmission or on the Ss' working day after the date of mailing. The Owner. The Construction Manager: The Dennis Group, LLC 208 Dykeman Road Shippensburg, PA 17257 The Contractor. Schreiber Foods, Inc. 425 Pine Street Greenbay, WI 54301 23. APPLICABLE LAW B&B Designed Systems, Inc. 21334 Croghan Pike, Suite 1 Orbisonia, PA 17243 The terms and conditions of this Contract shall be construed in accordance with the laws of the State of PA in which the Project is located. 24. NO WAIVER No action or failure to act by the Construction Manager shall constitute a waiver of any right or duty afforded under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach therefore, except as may be specifically agreed by the Construction Manager is writing. 25. ENTIIZE AGREEMENT The Contract supersedes all prior negotiations, representations or agreements, either written or oral, relating in any manner to the Work, including without limitation, the bidding documents that are not expressly listed in Article 2 -CONTRACT DOCUMENTS. The Contract maybe amended only as provided in the Contract Documents. The Dennis Engineering Group, LLC 18 F-3153, Schreiber Shippensburg Expansion Phase I[ PAGE 19 of 27 Augusl 1, 2011 3153-0410-SC-process dectrical-B&B.docx 26. SUCCESSION The Contract Documents are to be read into and form part of this Contract and the whole shall constitute the Contract between the parties and subject to the law and the provisions of the Contract Documents shall endure to the benefit of and be binding upon the parties hereto, their respective heirs, legal representatives, successors and assigns. IN WITNESS WHEREOF, and by the hands of their duly authorized representatives, the Construction Manager and the Contractor, have each executed this Contract as of the day and year first aboy~-~ritfiei~ SIGNED AND DELIVERED in the presence of THE ,LLC The Dennis Engineering Group, I,I.C F-3153, Schreiber Shippensburg Expansion Phase II ~~G~~jPer: o -, ~~,~(1(r ` Name: Dennis Title: sident I have authority to bind the corporation. B&B DESIGNED SYSTEMS, INC. (Contract/ Per: ~`~~ (~/J ~'Y 1.)~a-^ Name• Sol1S Title: ~.si ~ I have authority to bind the corporation. 19 PAGE 20 of 27 August I, 2011 3153-0410.SC-process elxtricat-Bt3tB.docx SCHEDULE A TO TIIE CONTRACT BETWEEN THE CONSTRUCTION MANAGER AND THE CONTRACTOR 1 The Work of the Contractor under the Contract Documents is to include, but not be limited to the following: 1.1 Scope of Work 1.1.1 Supply and Install IDF for Schreiber Shippensburg Expansion Phase II 1.1.2 Supply and Install HMI Panels and Stands for Phase II 1.1.3 Supply and Install Packaging Cable Tray for Phase II 1.1.4 Supply and Install Packaging Feeder for Phase II 2 The Commencement Date for the performance of the Work under the Contract is June 23, 2011. 3 The Completion Date for the completion of the Work under the Contract is July 1.2011. 4 The Contractor's rates for its actual cost of labor as defined in the Contract for additional and extra work is as follows: TIME SUPERVISOR LABORER APPRENTICE STRAIGHT TIME $45.00 $40.00 $32.00 OVERTIME $61.00 554.00 $43.00 SATURDAYS $61.00 S54.00 $43.00 SUNDAYS/AOLIDAYS 583.00 $74.00 559.00 5 The Contractor's rates for its actual cost of rentals as defined in the Contract for additional and extra work is equal to 110% (one hundred and ten percent) of its actual cost of the rentals. 6 The Contractor's rates for its actual cost of materials as defined in the Contract for additional and extra work is equal to 110% (one hundred and ten percent) of its actual cost of the materials. 7 The Stages of the Work and the completion dates for the Stages of the Work are as follows: ,. STAGES. OF THE .WORK ,.. 'COMPLE.TION DATE WEEK NO, 1. Site Mobilization 23-Jun-11 0 2. Work Co leted O1-Jul-1 I 1 Time is of the essence and the Parties agree these dates are critical to the success of the project and if the Contractor fails to complete the Work on or before the completion dates, the project will be harmed and the Owner and Construction Manager will suffer damages. 8 Intentionally Deleted The Dennis Engineering (]coup, I.LC 20 F-3 I53, Schreiber Shippd~cburg Expansion Plnse II August 1, 2011 3153-0410-SGprocess electrical-B&B.docx PAGE 21 of 27 9 Technical Documents List SPECIFICATIONLIST ;SpecificatYon `Number `_ Specification Title Release/Date - 01300 Administrative R uirements A ! 20-Ma -11 01400 ali uirernents A / 20-Ma -11 01500 Tem ora Facilities A / 20-M -1 l 01600 ProducCR uirements A / 20-Ma -11 01700 Execution R iretnents A / 20-Ma -I 1 01780 Closeout Submittals A / 20.Ma -I 1 00.02.01 Schreiber Foods' E i ment Electrical Standard B / 23-A r-07 079200 Division 7-Joint Sealants 03-Jan-10 03582P a51G Fire Rated Details 03-Ian-10 16010 General Provision A / 23-Feb-10 16050 Process Electrical A / 23-Feb-10 16110 Racewa s on-Process A l 23-Feb-10 1 G 120 Conductors 600 A / 23-Feb-10 1G130 Boxes on-Process A/23-Feb-10 16140 Wirin Devices and Device Plates A / 23-Feb-] 0 DRAWING LIST Drawing Number Drawing Title Release/Date E0.00 ELEC PROCESS -COVER SHEET 3 / 24-Jun-10 E0.02 ELEC PROCESS -LEGEND AND SYMBOLS I ! 09-Jun-10 E0.02A ELEC PROCESS - NEMA CLASSIFICATION FIRST FLOOR I / 09-Jun-10 E0.02B ELEC PROCESS - NEMA CLASSIFICATION -WALK-ON CEILING 1 / 09-Jun-10 E0.02C ELECTRICAL PROCESS -CABLE TRAY SECTIONS OVERALL PLAN 0 / 12-A r-10 E0.02D ELEC PROCESS -CABLE TRAY ROOF SUPPORTS OVERALL PLAN 0 / 12-A r-10 E0.02E ELEC PROCESS -CABLE TRAY/FIRST FLOOR LIGHTS OVERALL PLAN 0 / 12-A r-10 E0.02F ELECTRICAL PROCESS -CABLE TRAY/WALK-ON CLG LIGHTS PLAN 0 / 12-A r-10 E2.OOA ELEC -OVERALL FIRST FLOOR PLAN I / 09-tun-10 E2.OOB ELEC -OVERALL WALK-ON CEILING PLAN 1 / 09-Jun-10 E2.2I ELEC -RAW RECEIVING WALK-ON CEILING PART PLAN 0 / 09-Jun-10 E2.22 ELEC -RAW RECEIVING WALK-ON CEILING PART PLAN 0 / 09-Jun-10 E2.25 ELEC - BLENDING/HTST/FERM WALK-ON CEILING PART PLAN I / 09-Jun-10 E2.26 ELEC - HTST/ UARK SEP/PAST CIP WALK-ON CEILING PART PLAN 1 / 09-Jun- ] 0 E2.27 ELEC - MECHJRAW CIP/CONY ROOM WALK-ON CEILING PART PLAN 1 / 09-Jun-10 E.2.28 ELEC -FILLER SUITE'S (& 2 WALK-ON CEILING PART PLAN 1 / 09-Jun-10 E2.29 ELEC -FILLER SUITE'S 3, 4 & 5 FUTURE WALK-ON CLG PART PLAN 1 / 09-Jun-10 The Dennis Engineering Group. I.I.C 21 F-3153, Schreiber Shippensbutg Expactsion phase II Augvst 1, 2011 3153-0410-SGprocess electrical-B&B.docx PAGE 22 of 27 Drawing Number Drawing Title Release/Date E2.32 ELEC -ELECTRICAL ROOM WALK-ON CEILING PART PLAN 1 / 09-Jun-10 E2.50 ELEC -LINES 1-4 PACKAGING PART PLAN 1 / 09-Jun-10 E2.G0 ELEC -CABLE TRAY SECTIONS 0 / 09-Jun-10 E2.G1 ELEC -CABLE TRAY SECTIONS 2 / 09-Jun-l0 E2.62 ELEC -CABLE TRAY SECTIONS i / 09-]un-] 0 E4.OOA PROCESS ELEC POWER- OVERALL YOGURT E UIPMENT LAYOUT B / 21-tun-10 E4.OOB PROCESS ELEC POWER -OVERALL WALK-ON CEILING E LAYOUT B / 21-Jun-10 E4.01 PROCESS ELEC POWER-ENLARGED RAW RECEIVING AREA B / 21-Jun-10 E4.02 PROCESS ELEC POWER -ENLARGED RAW RECEIVING AREA C / 23-Jun-10 E4.05 PROCESS ELEC POWER - ENLARGED BLENDING/HTST/FERM LAYOUT C / 23-Jun-10 E4.06 PROCESS ELEC POWER- ENLGD HTST/ UARK SEP/PAST CIP LAYOUT C / 23-Jun-10 E4.07 PROCESS ELEC POWER-ENLGD MECHJRAW CIP/CONV ROOM LAYOUT C! 23-Jun-(0 E4.08 PROCESS ELEC POWER -ENLARGED FILLER SUITES 1 & 2 LAYOUT C / 23-tun-10 E4.09 PROCESS ELEC POWER - ENLGD FILLER SUITES 3,4 & 5 LAYOUT C / 23-Jun-10 E4.11 PROCESS ELEC POWER -ENLARGED PACKAGING LINES 1 & 2 LAYOUT C / 23-Jun-10 E4.12 PROCESS ELEC POWER- ENLARGED PACKAGINIG LINES 3 & 4 LAYOUT C / 23-Jun-10 E4.14 PROCESS ELEC POWER -ENLARGED PACKAGING LINES 1 & 2 LAYOUT C / 2,4-Jun-10 E4.15 PROCESS ELEC POWER -ENLARGED PACKAGING LINES 3 8c 4 LAYOUT C / 23-Jun-10 E4.16 PROCESS ELEC POWER-ENLARGED PALLETIZING AREA LAYOUT C / 24-Jun-10 E4.17 PROCESS ELEC POWER-ENLARGED PALLETIZWG AREA LAYOUT C / 24-Jun-]0 E4.I9 PROCESS ELEC POWER -ENLARGED WHEY AREA PUMPS & TANKS B / 21-Jun-10 E4.21 PROCESS ELEC POWER-ENLARGED WALK-ON CEILING ABOVE RCVG B / 21-Jun-10 E4.22 PROCESS ELEC POWER -ENLARGED WALK-ON CEILING LAYOUT C / 23-Jun-10 E4.23 PROCESS ELEC POWER -ENLARGED WALK-ON CEILING LAYOUT B / 21-Jun-] 0 E4.24 PROCESS ELEC POWER -ENLARGED ELEC RM 242 B / 21-Jun-10 E4.25 PROCESS ELEC POWER - ENLGD WALK-ON CLG ABOVE TEAM OFFICES B / 21-Jun-10 EG.00 ELEC PROC NETWORK DIAGRAM -PRODUCTION AND MCC AREAS M / 25-Jun-10 EG.O1 ELEC PROC NETWORK DIAGRAM -FILLER AND MAINTENANCE AREAS M / 25-Jun-10 EG.02 ELECTRICAL PROCESS NETWORK DIAGRAM -PACKAGING AREA L / 25-Jun-10 EG.03 PROCESS NETWORK DIAGRAM - IDF DETAILS C / 25-Jun-I 0 E8.00 ELECTRICAL -ONE-LINE 3 / 21-Jun-10 E8.01 DISTRIBUTION SCHEDULES B / 21-Jun-10 E8.02 480V PANELBOARD SCHEDULES B / 21-Jun-10 E8.03 480V PANELBOARD SCHEDULES C 124-Jun-10 E8.04 120/208 PANELBOARD SCHEDULES B / 21-Jun-10 E8.05 MCC3SCHEDULES F/2t-Jun-10 E8.06 MCC3A SCHEDULES F / 21-Jun-10 E8.07 MCC3B SCHEDULES F / 21-Jun-10 The Dennis Engineering Group. LLC 22 F-3153, Schreiber Shippeasbutg Expansion Phase II August 1, 20l 1 3153-0410-SC-process electrical-B&B.docx PAGE 23 of 27 Drawing Number Drawing Tilde ' ReleaSe/Date E8.08 MCC3C SCHEDULES F / 21-Jun-l0 E8.09 MCC3D SCHEDULES F / 21-Jun-10 E8.10 MCC3E SCHEDULES F / 21-Jun-10 E8.11 MCC3E SCHEDULES F / 21-Jun-10 E8.12 MCC3D SCHEDULES G / 21-Jun-10 E8.13 MISC. SCHEDULES C / 2I-Jun-10 E8.I4 MISC. SCHEDULES D / 21-Jun-10 E9.01 ELECTRICAL PROCESS -DETAILS 2 / 21-Jun-10 ADDENDUMLIST Addendum : ; _.. D.,ate. , ..:. Number 1 22 June 2010 2 25 June 2010 77~e Dennis Engineering Group, LLC 23 F-3153, Schreiber Shippensburg Expansion Phase I[ August 1, 2011 3 t 53-0410-SC-process ehxtrical-B&B.docx PAGE 24 of 27 Attachment I CONDTTIONAL ~~VAIVER AND RELEASE UPON PROGRESS PAYMENT Invoice No. Upon receipt by the undersigned of a check in the sum of $ (amount of check) payable to (payee or payees of check) and when the check has been properly endorsed and has been paid by the bank upon which it is drawn, this document shall become effective to release any mechanic's lien, stop notice or bond right the undersigned has on the job of Schreiber Foods, Ina. (Owner) located at 208 Dykeman Road, Shippensburg, PA, to the following extent. This release covers a progress payment for labor, services, equipment or material furnished to Schreiber Foods, Inc. through (date) only and does not cover any retentions retained before or after the release date; extras furnished before the release date for which payment has not been received; extras or items furnished after the said release date. Rights based upon work performed or items furnished under a written change order which has been fully executed by the parties prior to tbe release date are covered by this release unless specifically reserved by the claimant in this release. This release of any mechanic's lien, stop notice, or bond right shall not otherwise affect the contract rights, including rights between parties to the contract based upon a rescission, abandonment, or breach of the contract, or the right of the undersigned to recover compensation for furnished labor, services, equipment or material covered by this release if that furnished labor, services, equipment or material was not compensated by the progress payment. Before any recipient of this document relies on it, said party should verify evidence of payment to the undersigned. Further, the undersigned agrees to indemnify the Owner by reason of any loss or damage which the Owner may sustain as a result of any mechanics lien arising out of services rendered, work performed and/or materials furnished prior to the aforesaid date by any of the subcontractors, laborers or materiahnen of the undersigned. Dated: (Company Name) BY Its: Notary to execute the secfion below (must be fully complete and sealed}. STATE OF COUNTY OF Sworn to and subscribed before me this day of , 20_, by the of (Seller), on behalf of the Seller. NOTARY PUBLIC My Commission Expires: [SEAL] Prepared by: (Printed Name) Address: T7~e 17umis Bngineaing Group, I.I.C 24 August 1, 2011 F-3153, Schreiber Shippensburg Expansion Phase [I 3153-0410.SC-process electrical-B&B.docx PAGE 25 of 27 The Dennis Fagincaing ('croup, LLC 25 F 3[53, Schreiber Shippensburg Expansion Phase II August 1, 2011 3153-0410-SC-process elcctrical-BBcB.docx PAGE 26 of 27 .~ ~ r r Attachment 1 CONDITIONAL WAIVER AND RELEASE UPON FINAL PAYMENT Invoice No. Upon receipt by the undersigned of a check in the sum of $ (amount of check) payable to (payee or payees of check) and when the check has been properly endorsed and has been paid by the bank upon which it is drawn, this document shall become effective to release any mechanic's lien, stop notice or bond right the undersigned has on the job of Schreiber Foods, Inc. (Owner) located at 208 Dykeman Road, Shippensburg, PA, to the following extent. This release covers the final payment to the undersigned for all labor, services, equipment or material furnished on the job, except for disputed claims for additional work in the amount of $ Before any recipient of this document relies on it, the party should verify evidence of payment to the undersigned. Further, the undersigned agrees to indemnify the Owner by reason of any loss or damage which the Owner may sustain as a result of any mechanics lien arising out of services rendered, work performed and/or materials furnished by any of the subcontractors, laborers or materiahnen of the undersigned. Dated: (Company Name) By: Its: Notary to execute the section below (must be fully complete and sealed). STATE OF Sworn to and subscribed before me this day of the on behalf of the Seller. COUNTY OF 20_, by of (Seller), NOTARY PUBLIC [SEAL] Prepared by: (Printed Name) Address: The Dennis Engineeang Group. ~-C 26 F-3153, Schrd'ber Shippensburg Expansion phase tI My Commission Expires: PAGE 27 of 27 August 1, 2011 3153-0410-SC-process elxtrical-B&B.dcex 12106/201 Z 10:15:49 AM Contract Amount: 3,507,388.85 Invoice Estimate No No Description 15022 15052 15079 15084 15113 15154 15176 ~(}}~~ ~~,~ 15201 "' I'~ C.~ "'"1 Scar re.~ ~ Fc~:c'ls 15269 15333 15393 15448 t~J X x H bd H H tb 686 Designed Systems, Inc. Page 1 of 1 Contract Receivables Report AS OF: 12!6/2012 31453 Schreiber Food Phase 2 1566 The Dennis Group, LLC Invoice Date Paid Amount Invoiced Amount Balance Received Due Net Retainage Receivable 7/21/2011 2/21/2012 189,098.00 189,098.00 0.00 0.00 8/24/2011 2/21/2012 254,101.60 254,101.60 0.00 0.00 9/1!2011 2/21/2012 400,000.00 400,000.00 0.00 0.00 9/22/2011 2/21/2012 802,558.28 802,558.28 0.00 0.00 10/24/2011 2/21/2012 504,735.22 504,735.22 0.00 0.00 11/28/2011 2/21/2012 411,669.34 411,669.34 0.00 0.00 12/19/2011 2/21/2012 222,597.11 222,597.11 0.00 0.00 1/9/2012 1/9/2012 2,045.00 2,045.00 0.00 0.00 3/29/2012 5/21/2012 218,818.96 218,818.96 0.00 0.00 5/31/2012 8/21/2012 3,308.02 3,308.02 0.00 0.00 7/27/2012 445,593.00 0.00 445,593.00 445,593.00 9/5/2012 54,909.32 0.00 54,909.32 54,909.32 ---------- 3,509,433.85 ---------- - 3,008,931.53 --------- 500,502.32 --------- ---------- 0.00 500,502.32 Grand Total: 3,509,433.85 3,008,931.53 500,502.32 0.00 500,502.32 (.,ass Sr,w. ;TG~/$ - ~o~Dys.c=G`~ ~aovs.m7 3~O~U88.S5 3co~b~.53 v r NOTICE OF INTENTION TO FILE MECHANICS' LIEN CLAIM AGAINST YOUR PROPERTY TO: Schreiber Foods, Inc. 208 Dykeman Road Shippensburg, Pennsylvania 17257 Schreiber Foods, Inc. Corporate Office 425 Pine Street Green Bay, WI 54301 >TONESIFER AND KELLEY a rmfr.,,e,,,i r ~,.ra.;o„ A'1'I'ORNEYS AT LAW 2D9 Broadway ianover, Pennrylvania 17331 7I7-G32-01 G3 You are hereby notified that B & B Designed Systems, Inc., is a subcontractor under a contractual arrangement with your contractor The Dennis Group, LLC, and has furnished labor and/or materials in connection with the erection, construction, alteration or repair of an improvement to your property at Schreiber Foods, Inc., Shippensburg Plant, 208 Dykeman Road, Shippensburg, Pennsylvania 17257. The labor and/or materials furnished by the subcontractor consisted of Schreiber's Foods, Phase 2, Shippensburg Expansion Project, Process EIectricai Contract #3153- 0410. The subcontractor's work was completed and the last of the specified labor and/or materials was furnished by the subcontractor on August 9, 2012. The amount still due and payable by the contractor to the subcontractor is Four Hundred Forty- Five Thousand Five Hundred Ninety-Three and 00/100 ($445,593.00) Dollars and Fifty-Four Thousand Nine Hundred Nine and 32/100 ($54,909.32) Dollars, for a total amount of Five Hundred Thousand Five Hundred Two and 32/100 ($500,502.32) Dollars. Unless payment of the amount due is made within 30 days after service of this formal notice on you, the subcontractor intends to file a mechanics' lien claim for this amount against your property. The filing of the claim will result in a lien against your EXHIBIT "C" w r property, and proceedings to enforce the lien may result in a judgment against you and the forced sale of your property. /J Date: ~ ~ ~ ~~ ~~ STO~TESIFER AND KELLEY, P.C. 209 Broadway Hanover, PA 17331 (717; 632-0163 (telephone) (717) 632-8893 (fax) Attorney for Subcontractor, B & B Designed Systems, Inc. ~TONESIFER HIV D KELLEY nrroxrters nr [.nW 209 8roadwav Hanover, Pennsylvania 17331 717-G,i2-OI G3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA B & B DESIGNED SYSTEMS, INC., : NO. 7440-2012 Plaintiff vs. : Civil Term 4 -; SCHREIBER FOODS, INC., sYl Defendant y� PRAECIPE TO DISCONTINUE ACTION THE PROTHONOTARY: Kindly mark this action satisfied, released and discontinued. Respectfully Submitted, STONESIFER AND KELLEY, P.C. Jo -p r E. Erb, I'squire I. •57869 209 Broadway Hanover, PA 17331 (717) 632-0163 (telephone) (717) 632-8893 (fax) 11 9 s6 p8 a STONESIFER 06 1' /O 9 y7 AND KELLEY y� A Professional g Corporation 2 11 ATTORNEYS AT LAW ��� J 209 Broadway Hanover,Pennsylvania 17331 717-632-0163