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Home My WebLink About04-5451 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION D. C. GUELICH EXPLOSIVE CO., Plaintiff, No. 04 - ~"$I C.;u~L J-€A-Vv VS. COMPLAINT WESTRA CONSTRUCTION, INC. Defendant. FILED ON BEHALF OF Plaintiff COUNSEL OF RECORD OF THIS PARTY: CHARLES E. BOBINIS, ESQUIRE PA I.D. #30665 CHRISTIAN C. HUGEL, ESQUIRE P A I.D. #76062 Bernstein Law Firm, P .C. Firm #718 Suite 2200 Gulf Tower Pittsburgh, PA 15219 412-456-8100 DIRECT DIAL: (412) 456-8102 BERNSTEIN FILE NO. G0053701 MEK007730VOO 1 10/28/2004 . , . , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CNIL DNISION D. C. GUELICH EXPLOSNE CO., Plaintiff, vs. Civil Action No. WESTRA CONSTRUCTION, INC., Defendant. NOTICE AND COMPLAINT 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 upon you, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a Judgment may be entered against you by the Court, without further notice, for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION Two Liberty Avenue Carlisle, P A 17013 Telephone: 717-249-3166 (1-800) 990-9108 MEK007730VOO 1 10/26/2004 . , COMPLAINT I. PARTIES. JURISDICTION AND VENUE 1. Plaintiff D. C. Guelich Explosive Co. ("Guelich") is a Pennsylvania corporation having offices and place of business in Clearfield, Pennsylvania. 2. Defendant Westra Construction, Inc. ("Westra") is a corporation maintaining offices at 4002 Fenton Avenue, Harrisburg, P A 17109. 3. At the times pertinent hereto Defendant Westra contracted with Plaintiff Guelich for drilling and blasting services regarding the construction of a Country Inn and Suites located at 4943 Gettysburg Road, Mechanicsburg, Cumberland County, P A 17055 (the "Project"), as more fully set forth in their Subcontract Agreement with executed Change Order, a true and correct copy being attached and marked as Exhibit "1". 4. The transactions out of which this cause of action arise occurred in Cumberland County, Pennsylvania, and venue resides in this Honorable Court. II. HISTORY 5. As shown by the Subcontract Agreement at Exhibit "1", the subcontract amount between Guelich and Westra was increased to $18,150.34. 6. Pursuant to the terms of the subcontract, Guelich proceeded to provide drilling and blasting services in accordance with the laws of this Commonwealth, including regulations promulgated by the Pennsylvania Department of Labor. MEK007730VOO 1 10/26/2004 7. On account of certain job conditions, the proximity of gas utilities, power lines and highways, Guelich was limited by law in the placement of "shot" near these hazards. Westra and its excavation subcontractor, Handwork Construction, set out "ditch lines" for Guelich to drill and blast, Guelich having no control over whether these lines were placed correctly, whether Westra or its excavation subcontractor subsequently "stuck" to the line in excavating the ditches, and whether job conditions pennitted drilling and blasting in certain areas. 8. Because of the control residing in Westra, and its excavation subcontractor, Guelich's subcontract with Westra, at Subcontract Exhibit "2", Paragraph 8, provides ".. .no back charges may be levied unless agreed to by both parties in writing. D. C. Guelich Explosive Co. reserves the right to take action to correct any situation concerning drilling and blasting". 9. Guelich provided all drilling and blasting services in accordance with its subcontract obligations and in accordance with law and safe blasting procedures. 10. Defendant Westra received and accepted the aforementioned drilling and blasting services. 11. Subsequent to the perfonnance of the drilling and blasting services by Guelich, Westra contacted Guelich asserting a back charge against Guelich for "pecking" done by Handwork Construction. 12. The "pecking" was done without prior notice to Guelich and without giving Guelich the opportunity to inspect to detennine whether the pecking was done in the "line" blasted by Guelich, and to detennine whether additional blasting would have obviated the need for "pecking". 13. Notwithstanding the perfonnance of all conditions precedent by Guelich under its Subcontract Agreement, Westra has failed and refused to pay Guelich the contract balance of $18, 150.34. MEKOO7730VOO 1 10/2612004 14. Gue1ich is entitled to interest on the sums not paid when due at the legal rate of 6% per annum. WHEREFORE, Guelich demands Judgment against Westra Construction, Inc. in the amount of $18,150.34, plus appropriate legal interest and costs. Respectfully submitted, BERNSTEIN LAW FIRM, p.e. /' .-f ~,/ ,-9./-:/ ',./ .--;:;-< By: ---0 /1/----; CharI . Bu mi~U~ A J.D. #30665 Suite 2200 Gulf Tower Pittsburgh, PA 15219 (412) 456-8102 ---- Christian C. Hugel, Esquire P AlD. #76062 502 Market Street Lemoyne, P A 17043 (717) 737-5255 Attorneys for Plaintiff BERNSTEIN FILE NO. G0053701 MEK007730VOO 1 10/28/2004 CONSTRUCTION. INC. www.westrawci.com Westra Construction, Inc. 1---\ Equal Employment Opportunity Contractor /] c{\ d' .J 3129 Wes',a i CORPORATE OFFICE [", PENNSYLVANIA OFFICE i W7185111GlIWAY 49 4002 FENTON AVENIJI~ WAUPUN, WI 53963 IIARRISBURG, PA 17109 PHONE: (920) 324-3545 PIIONE: (717) 561-8098 FAX: (920) 324-5957 FAX: (717) 561-8099 I MINNESOTA OFFICE I I ARIZONA OFFICE 43551'EAVEY ROAD. SUITE 300 2715 W. tiROVERS AVE, SUITE 100 CIIASKA, MN 55318 PIIOENIX, AZ 85053 PIlONE: (952) 556-8700 PIlONE: (602) 795-0070 FAX: (952) 556-5552 FAX: (602) 795-0099 I JOB NO. 1258 SUBCONTRACT AGREEMENT COST CODE 2.130 S THIS AGREEMENT, made and entered into at Harrisburg, Pennsylvania between WESTRA CONSTRUCTION, INC. Harrisburg D.C. Guelich Explosive Co. Contact: - ------ hereinafter referred to as "SUBCONTRACTOR" whose principal address is: Post Office Box 245, Thomasville. PA 17364- Street Address City State this 18th day of Pennsylvania November, 2003 by and referred to as .CONTRACTOR., and Mr. Thom Thompson (717) 792-5263 --"------ - . Zip Code Phone No. (717) 792.5077 4" _ .__.~.__ _____ _. FAX No. RECITALS On or about the 26th day of August 2003 , CONTRACTOR entered into a prime contract with, -' -- - Chon Motel Enterprises, Inc. . ~. . hereinafter called OWNER, whose address is Mechanicsburg, PA 17055 to perform the following work: Construction of Country Inn & Suites, located at: 4943 Gettysburg Road, Mechanicsburg, PA 17055 said work is to be performed in accordance with the Prime Contract and plans and specifications. Said plans and specifications have been prepared by or on behalf of Facilities Pla~ners & Architects, Inc. . _ ___ _.____ H!lrrisb~rg, PA 17110 ___ _ __ SECTION 1 - ENTIRE CONTRACT SUBCONTRACTOR certifies and agrees that he is fully familiar with all of the terms, conditions and obligations of the Contract Documents, as hereinafter defined, the location of the job site, and the conditions under which the work is to be performed, and that he enters into this Agreement based upon his investigation of all of such mailers and is in no way relying upon any opinions or representations of CONTRACTOR. It is agreed that this Agreement represents the entire agreement. It is further agreed that the Contract Documents are incorporated in this Agreement by this reference, with the same force and effect as if the same were set forth at length herein, and that SUBCONTRACTOR and his Subcontractors will be and are bound by any and all of said Contract Documents insofar as they relate in any part or in any way, directly or indirectly, to the work covered by this Agreement. SUBCONTRACTOR agrees to be bound to CONTRACTOR in the same manner and to the same extent as CONTRACTOR is bound to owner under the Contract Documents to the extent of the work provided for in this Agreement, and that is where, in the Contract Documents. reference is made to CONTRACTOR and the work or specifications therein pertains to SUBCONTRACTOR'S trade, craft or type of work then such work or specification shall be interpreted to apply. to SUBCONTRACTOR instead of CONTRACTOR. The phrase "Contract Documents. is defined to mean and include all documents enumerated in Exhibit One attached hereto. Where a provision of such documents is inconsistent with a provision of this agreement, this agreement shall govern. . r.: ~) flO~;\ t"- .- SECTION 2 - SCOPE OF SERVICES . (. \:, 1\)\)~ SUBCONTRACTOR agrees to furnish all permits, licenses, supervision, labor, services, materials, Installation, cauIJ~, cartage, hoisting, supplies, equipment, scaffolding, teols, insurance, taxes and other facilities of every kind and description required for the prompt and efficient execution of the work described herein and to perform the work necessary or incidental to complete: PROVIDE ALL LABOR, MATERIALS, EQUIPMENT, TOOLS AND SUPERVISION TO PERFORM DRILLING AND BLASTING OF APPROXIMATELY 900 LF. OF UTILITY PIPELINES IN COMPLIANCE WITH ALL APPLICABLE LOCAL, STATE AND FEDERAL CODES AND LAWS AND AS SPECIFICALLY OUTLINED IN YOUR WRITTEN QUOTATION OF NOVEMBER 17, 2003, ATTACHED AS EXHIBIT TWO. ALL FOR $17.95/LF. QUANTITIES TO BE VERIFIED BY A REPRESENTATIVE OF WESTRA CONSTRUCTION, INC, PLEASE NOTE. WESTRA CONSTRUCTION. INC. FilED A STIPULATION AGAINST LIENS IN CUMBERLAND COUNTY COURTHOUSE. All DEBRIS CREATED BY YOUR COMPANY MUST BE TAKEN TO A WESTRA PROVIDED DUMPSTER AT THE END OF EACH WORKDAY. CONTRACTOR WILL ALSO FOLLOW WESTRA CONSTRUCTION, INC. SUBCONTRACTOR SAFETY POLICIES, AND WEAR HARD HATS AND SAFETY GLASSES AT ALL TIMES. for the project in strict accordance with the Contract Documents and as more particularly, though not exclusively, specified k\ E C E. \ 'V "=" j EXHIBIT ONE - CONTRACT DOCUMENTS EXHIBIT TWO - D.C. GUELlCH EXPLOSIVE CO. QUOTATION DATED NOVEMBER 17.2003 ; II I l.i!l ,II II \ \ Submit N/A copies of product data and/or shop drawings for approval. Unsigned Subcontract - 0: Vendor (2), C: PM, FS Signed Subcontract- 0: Vendor (1), PM (1), C: ACCT, FS Page 1 of 4 0-452 EXHIBIT.4-. . !' ~" "\ .~'; 11 \, .~ ill"..'" \ ~r t-.... :1...- ~ { ,~} .r ~ l .'. 7/03 3129 SECTION 3 - CONTRACT PRICE CONTRACTOR agrees to pay SUBCONTRACTOR for the strict performance of his work, the sum of: INOT TO EXCEED SIXTEEN THOUSAND, ONE HUNDRED FIFTY-FIVE DOLLARS AND ZERO CENTS........., I $16,155.00 subject to additions and deductions for changes in the work as may be agreed upon, and to make payment in accordance with the Payment Schedule, Section 4. SECTION 4 - PAYMGNT SCHEDULE CONTRACTOR agrees to pay SUBCONTRACTOR in monthly payments of 1100.00 I % of labor and materials which have been placed in position and for which payment has been made by OWNER to CONTRACTOR. The remaining ~ % shall be retained by CONTRACTOR until he receives final payment from OWNER, but not less than thirty-five days after the entire work required by the Prime Contract has been fully completed in conformity with the Contract Documents and has been delivered and accepted by OWNER, ARCHITECT and CONTRACTOR. Subject to the provisions of the next sentence the retained percentage shall be paid to SUBCONTRACTOR promptly after CONTRACTOR receives his final payment from OWNER. SUBCONTRACTOR agrees to furnish, if and when required by CONTRACTOR, payroll affidavits, receipts. vouchers. releases of claims for labor, material and subcontractors performing work or furnishing materials under this Agreement, all required owners manuals, product data, record drawings and guarantees, all in form satisfactory to CONTRACTOR, and it is agreed that no payment hereunder shall be made, except at CONTRACTOR'S option, until and unless such payroll affidavits, receipts, vouchers or releases or any or all of them, have been furnished. Any payment made hereunder prior to completion and acceptance of the work, as referred to above, shall not be construed as evidence of acceptance of any part of SUBCONTRACTOR'S work. SUBCONTRACTOR shall furnish lien releases to CONTRACTOR when requested and payment may be conditioned on the furnishing of lien releases. SUBCONTRACTOR shall submit all invoices to Westra Construction, Inc. on the I 25TH I day of each month complete through the ILASTI day of that month. Any invoices received after 90 days following completion of contract will not be paid. SECTION 5 - GENERAL SUBCONTRACT PROVISIONS General Subcontract Provisions on Pages 3 and 4 are an integral part of this Agreement SECTION 6 - SPECIAL PROVISIONS A CONDITION OF THE CONTRACT IS THAT: Hard Hats and safety glasses must be worn by your personnel on site at all times. O.S.H.A. Safety Standards will be followed and enforced on the job site at all times. CONTRACTOR'S OFFER EXPIRES: If a counterpart of this instrument, signed by both CONTRACTOR and SUBCONTRACTOR, is delivered to Contractor within fifteen (15) days from date of this Subcontract Agreement, Agreement shall thereupon become a contract binding both CONTRACTOR and SUBCONTRACTOR. Otherwise, CONTRACTOR reserves the right to rescind this offer. Return with your subcontract a certificate of insurance (see sample insurance certificate with appropriate limits enclosed). This certificate does not need to be project specific. Certificate must contain a blanket additional insured and waiver of subrogation to general liability, auto & umbrella in respect to work performed by insured. It is the subcontractor's responsibility to maintain a current certificate of insurance with Westra at all times. Payment will not be made unless a current certificate is on file. All requests for payment must be submitted on either a "Partial or Final Pay Request", referencing the above-mentioned Subcontract Agreement number. Invoices not referencing this Subcontract number and the proper jab number will be returned. IN WITNESS WHEREOF: The parties hereto have executed this Agreement for themselves, their heirs, executors, successors, administrators and assignees on the day and year first above written. SUBCONTt:ii;ACTOR D.C. Guelich EXPloSI.ve Co. Signature !{ I$J .. . NamefTitle __ -12 'V A / ~ e c.. G II ell (. \ fj?,p-s Date: I~~.~ -- 03 [ ] Corporation [ )Partnership [ )Proprietorship (Seal) CONTRA~. 'f4M2nstr~c. Signature~. \ __ Richard Krisch Senior Project Manager Date: \ihaJQj _H_--.. - ---------- RECEIVED "'UPON EXECUTION, PLEASE RETURN ALL COPIES OF THIS AGREEMENT. WE WILL FORWARD YOUR EXECUTED COPY.. Page 2 of 4 ill I 'I d )illlj Unsigned Subcontract - 0: Vendor (2), C: PM, FS Signed Subcontract - 0: Vendor (1), PM (1), C: ACCT. FS 0-452 7/03 General Subcontract Provisions A' INSURANCE SUBCONTRACTOR shall seaJI". and malntaln WOO"" Compensation, Employ.rs Liab""y, Public LlablllIy, and p"""",,, Dam_lnsutallCO ror the SUBCONTRACTOR and lis .mployees with a company or companl.s saliSladory to the CONTRACTOR and lumlsh certlllcatos wanantlng not I.s. than Wrty days notice 01 cancellation or malonal chang. In any policy to lho CONTRACTOR. The certlfk:al.. mllSl be proYIded belOf. wort< beQlns naming CONTRACTOR and 0Wn0< 01 the ProJIId as addltionalln'lBed. and coyeragos 'equlred must proyld. the minimum lIablnly limn. olAllned below, whlell may be Increased al CONTRACTOR'S opllon. "the SUBCONTRACTOR lalls to furnish a certificate of Insurance evldendng appropriate coyersottS, fhe CONTRACTOR may wfthhold payment from SUBCONTRACTOR LWltiI such lime as appropriate coverages are purcn.'ed and evld.,nce bV certlflcatss of lnsufanco. 1 Workers Compensation Insurance of at least statutory "mlts ;nld an states endoraemen11hatl be seC\l'ed and mat~fled .. requtred by the taws of the state whe,.., the worit is located. Thts Insurance shall cover an empkJvess wno will be porlomring any 01 tile oI>Ilgatlon. assumed by Ihe SUBCONTRACTOR unelllr Ihe conorad document.. Employers Liablllly IImitJ or $ 500,000 Each Accident I $ 500.000 Disease Polley Limlll $ 500,000 Dlse... EaCh EnIjIIoye. sl1all be required. 2. Comm..claI General Llablllly Insurance (occurrence lann only) .hall be .ecured and maintained by SUBCONTRACTOR _ tho fo_ng minim.... ,mitJ: $ 2,000,000 General Aggregale. $ 2.000,000 Products and Completed Operallons Aggregal., S 1,000.000 Porsonaland Advertising Injury, S 1,000,000 Each Occurrence, S 50.000 Fire Damage (any one fire), S 5,000 Medical Exp<!nse (anyone penonl. attaCl1 CG,2S03, S 1,000,000 Aggregat. Limit p.rprolecl (copy an_I, Coyerage to lrclude corCractual "ability and when app\lcabl. E.plo.lon, Collapse and Unde<Vround hazartl.. 3. BUSIne.. Automobll. Uablllty COYerlng 'any aulO. Including a" Owned, Non-Owned and Hired Auto lIabll~y shall be HCOJred and mainlained by SUBCONTRACTOR In tl1e lollowing combined singl.llmlt 01 $ 1,000,000. 4. Umbrella Liability with a minimum "mil or S 1.000,000 Each Occurrence and $ 1,000,000 Al1llregate may be reqUired in the evenc the above oullined coverages are nol sumclent. 5, In the .Yen! 0Wn0< h.. not provided build"" rts!< coyerag. the SUBCONTRACTOR shalt purcI1as. and malntain property Insuranal 10 pRllect lit. inl._. on 011 job relaled material. and equipment This Include., bIJIls nol limited to Installation FloaterlBuIkl\ngS Risk, Tool and Equipment Floater, etc. CONTRACTOR will not be r..ponsibl. for damage to, Of 10.. 01, SUBCONTRACTOR'S materia! and/or eqUipm.nI while located on the job sll., willie In transil or etsewhere. B: GENERAL INOEMNITY To the hJll... ,"ent permllted by law, tho SUBCONTRACTOR. lis subcontract..., agent. and employee. snail Indemnily and hold hannl... tile CONTRACTOR, Owner. ArcIlIIecl, ArcIlilect's Consullant., Ag.nts and Employees or any of them from and against dalms. damages. losses and expenses. InCluding but not limited to anomey's fees. arising oul 01 or resulling lrom perf"""anc. 01 the SUBCONTRACTOR'S wort< under II1is Subcontrad. proylded tI1at such dalm. damage. Iou or expense Is attt1tuable to bodily Injury, Sickness. disease or death, Of to lnjucy to dOO1ludlon 01 tangibl. property (other lhan lho Wool< 1I.etf), bIJIonly 10 lhe ..lent caused by the negligent act. or omissions of the SUBCONTRACTOR. a sub-subconttactO(, anyone direcUy or Indirectly empaoyed by them. at anyone for whose acts they may be Jiabte. This IndemniflcaUon obligation exists reoan1less of ~her Dr nol such claim. damage. loss or expense Is caused in oan bV a party Indemnified. However, Ihelawa' the slale where lhe Injury exists may provide for the apportlonmenl of the loss. In claim. agalnSl any penon Of entity Irclemnilied untI..lhl. PlO1IiSlon 8 by any employee of the SUBCONTRACTOR, a stJl>..ubcontractor. .n"",. directly or Indirectly employed by lhem or anyone lor whose acl. they may be liabie. Ihe indemnification obligation und.r this Provl.lon B shall not be IImlled by . IImllatlon on lhe amooot or Iype of damages, compensation or benefits payable by or for the SUBCONTRACTOR or a sut)-subomtractor ooder workers' or WOI1tmen', compensaUon acts, dlsabUlty benefll acts or other emptoyee beneCit acts c: BONDING OF SUBCONTRACTOR ConcurTently wltII "'. ..ecutlon 01 tN. Agreem.nt, or at any lime during Its perfonnance, SUBCONTRACTOR .hatl, II reqUired by CONTRACTOR, e.ecU. a Labat and Material Bond and/or Perionnano:e Bond, In an amounI equal 10 100% 01 the Contract Pric.ln Section 3, plus the net _ate 01 any Change OIll""lssued. Said bonds shall be exOC\lled by a corporale surety acceplable to CONTRACTOR and shllll be In . 101m .atlslactorY 10 CONTRACTOR. SUBCONTRACTOR sIlall pay the premium on said bond. unless otherwi.. provided herein or In lhe Contract Documents. D: TIME Time is the ..sence olW. Agteement. II .hlIlI be SUBCONTRACTOR'S obllgallon to conform to CONTRACTOR'S progress SChedUle, subjed 10 CONTRACTOR'S modlllcallon. ""'ell I. Incorporated herein by tills r.'O(ence and made . part hereor. SUBCONTRACTOR shall prepare and oblaln approval.. reqUired by the Contract Documents lor ai' shop drawtng.. detail.. sampl.., am do all Olher Ihlngs nece.sary and _at to lhe pro.ll(UtIon 0111. _In conIomlance wilh \he said JlIOOIIlSS SChedule. SUBCONTRACTOR .hall coonllnate lhe _ coY_ by thi. Subcontract with t1181 of all other COnlrac1ors, .ubconlnlClors, and of the CONTRACTOR In a m..,nerlha! win lacilitat. lhe .,fldent completion of "'. entire wort<. CONTRACTOR shall have complete conlrol 01 the premls.. on wIllChth. wool< 1.10 be perfOmled and shall have lhe rIg/11 10 decide the lime or order In whlChlhe various portions 01 tII. wort< shall be .nstalled or tl1e priority of lho _ 01 other subconlractors and, In general, all mati... representing the "m.ly and onlerty conduct 01 the wool< 01 SUBCONTRACTOR on the premise. SUBCONTRACTOR shan Iurnlsh COpi.. or all pun:hase olll"" lor any equlpm.nt or material. and delivery schedul. of same wllh ."""'1.. conflrmallon 10 lhe CONTRACTOR when required by tho CONTRACTOR. ' Should SUBCONTRACTOR be delayed In lhe pnl1OCI.ItIon or completion oIlho wol1< by the act, ne~'ecl Of delaul\ of OWNER, 01 ARCI1ITECT. or of CONTRACTOR, or should SUBCONTRACTOR be d.layed w81llnglor malonal., if required by Ihls CONTRACT, 10 belurnlshed by OWNER or CONTRACTOR, or by damage caused hy fire cr Olhor casually lor wI1fc/I SUBCONTRACTOR IS nol responsible, or by Ihe combined action 0' tII. _kmen, In no way cauJed by. or I'IlSU/lIng rmm deI.ulI or collusion on the Dart 01 SUBCONTRACTOR, or In lho event 01 alocl<out by CONTRACTOR. then the <<me hereIn l11<ed lor lhe compiellon 01 wort< shan be ""tended the number 01 days that SUBCONTRACTOR has thus been delayed. but no IIIIowance or .xtension shall be made unless a c1alm Iherelor Is presenled In wnllng to the CONTRACTOR wltIIln 018 hours 01 lhe commencement of .uch delay, and untIer no circumstances shall the 11m. 01 complellon be ...ended 10 a dal. wIllCh will pr.vent CONTRACTOR 'rom completing lhe entire project within the 11m. tIIal OWNER allows CONTRACTOR fOI such comptellon. No claim. lor addltlonat compensalion or damagoslor delays, _her In tII. lurnl.hlng 01 material by CONTRACTOR, or delays by otller subcontractors or OWNER, will be a_ by the CONTRACTOR. and said ..tension 0' lime ror the completion shall be tl1e sol. remedy 01 SUBCONTRACTOR: provided, however, that In Ih. event. and In such evenlonly, tIIat CONTRACTOR obIalns additional compensallon lrom OWNER on ACCOUnt 01 such delays SU8CONTRACTOR may be entitled to such portion 01 the addIlIona! compensation so _ed by CONTRACTOR from OWNER a. I. equllable Under all ollhe clrcumst8nCOl. Nothing herein conIaIned shall require CONTRACTOR 10 m._. any clalm against OWNER lor .uch delays, and ill. .pecllIcalfy agreed tIIal the Iallure of CONTRACTOR to pro.ecute any suCh cI.1m agalnsl OWNER shall not entllle SUBCONTRACTOR 10 any clalm lor damag.. against CONTRACTOR. E: CHANGES IN THE WORK SUBcoNTRACTOR hereby ag.... to make any and all c:I1ang.., 'urnlsh the material and perf""" tile wo" thal CONTRACTOR may require, without nlJllifylng this Agreement, at a reasonabte addllkH1 ro, Of reduction from, the Contract Price SOIled herein, and pro rata to tI1e same. SUBCONTRACTOR Shall adhere slrIdly to tile plans and specIflcaUons unIeU a chang. therelrom i. .\thortzed In whllng. Uf1de< no condillons shaft SUBCONTRACTOR make any chang.., either as addition. or ded"'lons, wllholll tile _en order 01 tile CONTRACTOR and CONTRACTOR shaN not pay 0I't'/ extra chafves made by tI1e SUBCONTRACTOR that have not been agreed upon in advance In writing by CONTRACTOR, and. In no ""ent, shall CONTRACTOR make payment ror any .uch .xlra chafv" unl... and until the CONTRACTOR Ilse1r recelY.. payment from OWNER. SUBCONTRACTOR shall submil Immedlalely 10 the CONTRACTOR. wrillen copl.. or Its cosl or credil proposal lor cI1anges In the wool<. Disputed "'"'" shall be p<!rfonned as onl..ed In writing by the CONTRACTOR and the prager cost or oredK tw.aI<downs _elor shall be sullmllled wllhout delay by SUBCONTRACTOR to CONTRACTOR. Unsigned Subcontract, 0: Vendor (2), C: PM, FS Signed Subcontract. 0: Vendor (I), PM (1), C: ACCT, FS SUBCONTRACTOR sha" give notice of claims relating to any wort< lor _'xlr. compenaaIlon Is asserIed wllhin 15 days on.. .__Is pelfOmled Of SU8CONTRACTOR shall be deemed 10 haYe abandoned 0I't'/ claim lherefo IIlhe SUBCONTRACTOR Inlllale. a .ullstllutlon, dO'llallon or c:I1ange In lhe wort< wI1lch allodl lhe SCOp<! 011110 wor or the "p<!n.. or Olh.. Irlld.s. SUBCONTRACTOR shall be lIabl. for lhe expen.. lhereof. No chanQe. alteration Qr modlflcaUon In or deviations from UUs Subcontract or the planS Qr sPedftcatlons., whether made in the manner herein pro'lided or not. shaM release or exonerate. In whole or In pan any IWet';' on Ill';' bond glv.n In connection with IN. Subcontracl and _r Owner nor CONTRACTOR shall be under any obIlgallon to nomy the surety or sureties of any such change. F: DAMAGES CAUSED BY DELAYS In lhe soIeludgment of lhe contrador. should SUBCONTRACTOR d.lauK In th. proper performance of Its ",""" lhereby causing delay to lhe prim. conolad wort<, ft shall be lIabl.lor any and all .... and damages, including nquldaled d.mages. sustained by CONTRACTOR as a reoull thereat. SUBCONTRACTOR shall not be nable under tt~s paragraph If SUCh defau" be caused by OICtS of God or other reasons beyond' Ute control of SUBCONTRACTOR, concerning whIch, however. notice at occurrence ot same shall be given WI'Mitlng WIIthln 24 hOurs by SUBCONTRACTOR to CONTRACTOR. G: LIENS ANO THIRD.PARTY CLAIMS SUBCONTRACTOR shall al alltlm.. Indemnily and .av. CONTRACTOR and Own.r harml... against lIablflty for claim. and liens lor labor porlormed or malonal used or lumIshed 10 be used on the job, under this conIr8cl, Including any cost. and .._. lor attorney" lees and aIllnctdentol or consequectlal damag.. resulltng '" CONTRACTO~ or 0Wn0< Irom such claim. or liens. Further, In case a claim Is raised or .uIt on'uch claim" brOtlOht, SUBCONTRACTOR sluln d.'end .aId claim Of sull alitJ own cost and e'pense, and wtJI pay and sa~sly.ny.uch claim, lien or judgment a. may be .slabIls"'" by the deciSion or the t~bunalln lUll. SUBCONTRACTOR agrees within I.n (10) days aner wrillen d.mand to caus. the ofleel or any claim, sun or lien 10 be removed rrom Ih. pr.ml.e. and In lhe ev.nt SUBCONTRACTOR shall falt so to do, CONTRACTOR I. auIho~zed 10 use wI1ateYer means In lIS discretion It may deem appropriat.IO cause .aId claim. lien or suit 10 be removed or dIsmiSsed and the cos11hereol, lOgether with r.asonable _mev's I.... shat1 be immediately due .nd payabl. to CONTRACTOR by SUBCONTRACTOR. SUBCONTRACTOR m.y IltlQale any 'uch claim. lI.n or sUiI provided n caus..the .ReeI Ihereol to be removed, promptly In Idyance, from the premise., and shall further do such tiling. as may be necessaty to cause owner not to withhold any monl.. due to CONTRACTOR lrom OWNER by reason 01 ,uellllens or 1lUlls. n is understood and agreed that the fun _lit faithful performance of this SubQ)ntrad on the part of SUBCONTRACTOR (Including lhe payment 01 any obligations due 'rom SUBCONTRACTOR to CONTRACTOR, and any amounts due to labor or materialmen furnishlng labor or malerlal for said work) I. a condition precedert to SUBCONTRACTOR'S right 10 receive paym.nt for lhe wort< perfOmled, and any mont.. paid by CONTRACTOR 10 SUBCONTRACTOR under Ihe leons Of thiS Subcontract shall be Im""""ed with a lrustln la..... 01 18bot and materlalm.n lurnlshlng labor and mate~aI 10 SUBCONTRACTOR lOf lho ..... h..eIn 'ubcontracted. H' RECOURSE BY CONTRACTOR: tn 111. event that SUBCONTRACTOR at any tlm. r.lus.. or _I.cts to lUaply a 1U(fId.nt number 01 property sltlJIed wort<men or a sufficient quantity of material. of proper quality, or be adjudlca1ed a banlullpt, or fllos an arrangement proceeding. 0' commits any act of insotvency, or makes an a5~Qnment for beneftt of credncn whhDut CONiRACTOR'S aJnsent. or rall. to make prompt payment to its materlatmen and laborers. or 'alls in any respect, Including .ny fabor dl.putes, 10 property and dtllgenlly prosecute lhe wort< covered by I"" Suboontrad, or _e. delinquent wUh respect to contributions or payments required to be made to any Heafth and Welfare, Pension, Vacatton, Appr.ntlceshlp or olher .mpIoye. benofil program or trust, or lallslo Iulflll any 01 the ptOYlsions 01 Paragraph J of Ihese General Subcontractor Provisions, or otherwls. fall. to perfOfTl\ fully ont and all 01 the agreement. herein contained, CONTRACTOR may, at II. option, .fter giving whll.n nolle. to SUBCONTRACTOR, provide .ny such labor and mal.rials a. may be necessary and deduct the COlt "'....., Icom any money lhen due Of therealler 10 become due to lhe SUBCONTRACTOR under Ihl. Subcontract: or CONTRACTOR may, alltS opllon. leanlnale SUBCONTRACTOR'S rig"'lO pmcoed with tI1e ...rk ond. In thai event. CONTRACTOR _ have the ng/11 to enter upon the 1II"n\se. ollhe project and tBke po....sion, IOf tho purpose 01 compiellng the _ included under thl, Subcontract, of all mal.rial., tools, and appliances of SUBCONTRACTOR, .nd may employ any o!hllt """"" or p<!rsons to nnlsh Ih. _ and provide lhe mate~aI. "'ererore. In case 01 such termination of SUBCONTRACTOR'S rlgltllo proceed wllt1lhe ,"""", said SUBCONTRACTOR shall not be entilled 10 receive a1Y 'urther payment under this Agre.ment until lhe _ undonal<en by CONTRACTOR In its prime rontlOd I. completBly ftnllhed, At thai lime, Illhe unpaid balance 01 any amount to be paid under 111I. Subconlract, ..coedslho ",,_.1_ by CONTRACTOR In nnlshlng SUBCONTRACTOR'S wool<, .uch exc... sI1aII be paid by CONTRACTOR II> SUBCONTRACTOR when all olher provisions lor payment have been saUslled. "such .xpens. shall exceed such lI'Illald b"'.nce, then SUBCONTRACTOR shall prompJly pay 10 CONTRACTOR Ih. amount by _ 'uch .._ ..coedS .uch unpaid balance. The ..pense rel.lTed 10 In 1111. paragraph shall Include .xpenses incurTed by CONTRACTOR loI' fllmishinQ malerlal.. for supplementing Of flnl.1IIng lhe _, lor attomey's lees, and any damages .ustalned by CONTRACTOR by r....n 01 SUBCONTRACTOR'S delaull. pius a m8rirup 0115% General Overhead and 10'l10 ProM on any and all 01 such expen..s, and CONTRACTOR .haIl have a lien upon all material., tools and appliances t._en possession or, II aforesakt, to secure Ihe payment fhereof. The notice referred to In thl, PlAQraph \'A" be luMdent al'd QJmplele wilen hand delIV.red, laxed, emalled or mailed 10 SUBCONTRACTOR allts addre.. _In this Agreemen\. CONTRACTOR may withhold, or on account 01 subsequently dlscoy_ evidence, nu11l1y the whol' or. part 01 any payment under SECTION 4 to such ..tent as may be necessary 10 proted CONTRACTOR 'rom loss, Including costs and anomey's fees, on accounl af (1) d.lectlv. wort< not remedied: (2) daUnt flied by SUBCONTRACTOR, 1I. .ubcontractor or its _erl'" supplier Of ",asonable evldenc.lndk:allng probable filing of claim on this Project or another project under conlrad wIIh Westra Construcllon. I"".; (3) lanure 01 SUBCONTRACTOR 10 mall. payment. properly to Its _ractors or for malonal, labor, or for frtl1Q8 benefits: (ot) a reasonable doobC thai this Subcontract can be completed for the balance then unpaid; (5) damage to analher subcontractor. When (he above grounds are removed. SUf;h amooots as are lhen due and O\llring shall be paid or aedited to SUBCONTRACTOR. I: TE~MlflATION OF AGREEMENT In the ev.nt tile prim. contract is terminated prlor 10 Its complellon, SU8CONTRACTOR shell be entilled only 10 payment for lhe worIl actually completed by II aI the pro Iale ollhe p~ce herein .Ol forth unless CONTRACTOR Ilse1l recelv.. additional compensallon or damag.. on account 01 such tl!lTl1lnallon: In _ O'Iont, SUBCONTRACTOR .hall be .nUlledto IUCI1 proportion 01 lhe addlllonat compensation or dam_. Bct"""y rectived a. I. equftable under all of Ih. circumstances. Noll1lng hereln contained _ require CONTRACTOR to maI<e any claim ag8lns1 0Wn0< for SUd\ eddIllonal compensation or dam_.1n lhe eYen! at t_1on belorw compiellon. and ft ,. Sl>ecit\cally agreed that Ih. fallur. 01 CONTRACTOR 10 prosecute any .uch clalm agatns1 Owner shall not entitle SUBCONTRACTOR 10 any claim lor additional compensotlon or damag.. agalnsl CONTRACTOR. Nolwithslandlng the preceding paragraph. CONTRACTOR res""'os the absolute rIgItllo temtlnale Ihls Subcontract. In lhe event 01 1enn\nal1on without cause, SUBCONTRACTOR shall be entllled to payment only as follows: 1. COst 01 the wool< 8clually compteled In conlomllty with 1111. Subcontract: plus 2. 10'l10 01 co.ls rel..oed to In Paragraph 1 aboV., lor overll.lId and prolll. There shall be deducted 110m sucII sum. II proylded In thI. _apIIlhe _01 0I't'/ paymenII made to SUBCONTRACTOR prtor 10 lhe dllle 01 lennlnallon 01 tIllS Subcontract. SUBCONTRACTOR shall not be entllled 10 any claim, or claim 0' lien, against CONTRACTOR or agalnsl 0Wn0< lor any additional co~1on or damages In lhe event: or such termination and payment. In lhe event lhi. AGreement is termlnlll"" lor cause. SUBCONTRACTOR shall 110\ be entitled 10 roceiYe any further payment unllllhe "'"'" und."""en by CONTRACTOR In III prime contraclls completely fl__ At tI1at time, il the amount. .arned but not paid SUBCONTRACTOR before said I_Ion ""coed lho ..penseslncucred by CONTRACTOR In finishing SUBCONTRACTOR'S ...rt<, any .xce.. after all damage. haYe beenlndemnilled s_ be paid by CONTRACTOR 10 SUBCONTRACTOR: but. II such expense _I..coed It1e said amount earned and unpaid. SUBCONTRACTOR shall promptly pay 10 CONT~GSE!Eense ..ceeds.aId sum. The exp<!nse Il1QJlTed by CONTRACTOR. II lust rei I I R' ..pen.elor furnishing maleilals, for flnishlng the ",""" lor attorney's I , . CTOR by ",ason 01 SUBCONTRACTOR'S dofoull. '1/ I. 41 'r ,III i Page 3 of 4 0,452 7/03 General Subcontract Provisions J: LABOR RELATIONS Employment 01 labor by SUBCONTRACTOR shall be e/leeled under condlllons wIlIch are sallsfactory 10 CONTRACTOR. SUBCONTRACTOR snau keep a represenlaUve at lhe job slle during all limes when SUBCONTRACTOR'S wor1c Is In _ess and such represenlatlve shall be authorized to represent SUBCONTRACTOR as to aU ph.... 01 Ihe _. Prior 10 commencement of the WOr1c, SUBCONTRACTOR 'hall notlly CONTRACTOR wtoo SUBCONTRACTOR'S reo<..entatlv.l. to be and. In lhe .vent of any chang. of __Ill".. SUBCONTRACTOR sholl notlly CONTRACTOR wtoo Ih. now """"....oIlv.l. to be o<\Of to such chang. beComing oIlect".. S/louId thefe be plclcetlng on the CONTRACTOR'S job srt. and CONTRACTOR establishes a r.....ed gate for SUBCONTRACTOR'S purpose, it shall be the obligatiOn 01 Ih. SUBCONTRACTOR 10 conl..... Ih. proper performance of Its 'MH'k without Interruption or deley. SUBCONTRACTOR wllllndemnlry and hold harmles. CONTRACTOR lrom and agalns. any lIab1l11y, loss, damag., cost, d"ms, lM'8tds, Jucrgmenls. flnes. IJlpenseS. inctudlng IIllgatlon expenses. reasonabfe attorney's 'ees and;my ......00... -INV be Incurred by "'" CONTRACTOR re,ulUng lrom SUBCONTRACTOR'S failure 10 fulllll the ooyen&ntS set ranh (n this. paragraptt K: LAYOUT RESPONSIBILITY CONTRACTOR shall establish principal ..Is itnes and levels whereupon SUBCONTRACTOR shalt lay out and snart be stl1dly respons~e (at the accuracy oJ Its work and Jar any >>Oss or damage to oU'ter oontracttul engaged In work on lhe sH. by .....n or f..lure 01 SUBCONTRACTOR to set out or perfonn Ita wor1c mrrectly. SUBCONTRACTOR shall exercfse ptUdence 10 thai actual final conditions and details sha" result in perfect alignment of finish surfaces. L: WORKMANSHIP EvefY Dan of "'. wor1c herein clescrlbed shalt be executed In strict acconlance wllh "'e Conlract DoWmentsln Ih. mosl sound. 'M)rkmanllke. and substantial mannef'. AIf v..orkmanshlp shall be or the best or hs several klrds, and an materials u.ed In "'. wor1c herein described snail be furnished In ample quantities to radlllal.the proper and ppedltlous execullon of the work, and shafl be new and the best of their respective kindS, except such materials 85 may be .x.....ly provided In the Contract Docurn.nts to be othel'Nl'e. SUBCONTRACTOR will rl!l>air any worl< dedared incomplet. or unsatl.lactory by Owner. An:hiIec1, or CONTRACTOR. Including o<ovldt"lllmmedllll. attention to punchIfst Items. M: PROVISION FOR INSPECTION SUBCONTRACTOR shall fumlsh 10 CONTRACTOR and Its representallves ample facilities al all limes fOf Inspecting materials at the site of construction, at the shops. or any place where materials under this Agreement maY' be in 00.... of ~paralion. process. manufacture or trealment SUBCONTRACTOR shall rurlher furnish 10 CONTRACTOR as often as required. full reports 01 the progress of th. wor1c at any place whe.. materials under thts Agreem<!nt may be in the 00.... 01 preparation or manufacture, said reports to show lhe prog..ss of suct1 p..p..atlon and manulactur. In such delaM as may be required by CONTRACTOR. Including any plans, drawings, or diagrams In """'e of preparatiOn N: MATERIALS FURNISHED BY OTHERS In the event the scope of work lndurJes Installation or materials or eQulpmene rurnlshed by others, 11 shalf be the responsibility or SUBCONTRACTOR to 8Xamt"e lhe Items so provided and thereupon handle, store and install the items with such sid" and case as to insure a satisfactory lns.tatlatlon. loss Of damage due to acts or SUBCONTRACTOR shall be cnaoved 10 lhe acCOOnlof SUBCONTRACTOR and dedutled from monies due under this Aoreemem, 0: PROTECTION OF WORK SUBCONTRACTOR shall elledlvely Seal" and ,,",Iect its _ hereunder and ..sum. full responsibility for lhe condilion thereol until final acceptance by Architect, Owner and CONTRACTOR. SUBCONTRACTOR lurther agr... to provide ouch proIeellon as is necGSS"'Y to proIect the _ and the _men of the CONTRACTOR and ot.... subcontractors from lis operations. SUBCONTRACTOR shall be lIab1. lor any Ios. or damage 10 any ...,r1r In place or to any equipment and materials on the job sit. caused by SUBCONTRACTOR or its agents, employees or guests. Landscaping, sidewalkS, cLrils. gutters, pavement and grounds shall be crossed only aI designated places Any subcontractor. Its aQentS ()r 'MJrtc.men. who crosses at any other place assumes the entire Wit Qf replacement of any broken. cracked or damaged sidewalks. CUltls. gutters, pav.ments or grouncls, In addllion 10 any other damag.s, reo_ess of who else has clllssed ove< lhese non-d.slgnated places. P: EQUIPMENT The SUBCONTRACTOR shall provide all power operated tools and equipment necessary ror the performance o( this 'M)rk and shall furnish aU fuel. extension cords, or olher temporary wiring rrom the power soun:e supplied bV (he General Contractor. Such items f"""shed by the SUBCONTRACTOR shalt comply with current N.E.M A connguraUon requirements. . In lhe event SUBCONTRACTOR shall use CONTRACTOR'S equipment or ladmles. II shall retmburs. CONTRACTOR at a predetermined rate, ur1less otherNiae stated herein. Further, tt1at In SO doing SUBCONTRACTOR ..sum.. an responsibility lor, and shall hold CONTRACTOR harmless from any claim., actions, demands, damages. liabilities, Of expenses, induding anomey's fees, resulling (rom the use of such equipment or radlltles by SUBCONTRACTOR or lis agents, employ.... Of pennlleeS. Q: CLEAN-UP During the course of construction, SUBCONTRACTOR shall remove from It'le site wasle materials. debn.. crales, cartons, trash or OCher maten., brOught ana the site. but not incorporated Into the W'OJ1I:, tills necessa,., 10 maintain the o<emlses In a clean and orderly condillon. The above applies _her supplied by SUBCONTRACTOR or not so long as the SUBCONTRACTOR IS Installing or handling the lI.m Involved. Keep lhe _ arealn a~aI.~nd clean <x>ndlllon at all Umes. Upon comoietlon of the _ under Ihlt Subcontract. SUBCONTRACTOR .haIl remov. from "'" sHe a1llemporary struclures incident to lis operllllon and clean all surfaces, IIxtures, equipm.nl, etc.. relaling 10 tile pelformanc. of \his Subcontract. II required by lhe project superinlenden\. .ach SUBCONTRACTOR shall be responslble for .....plng Ih. ..... lhey _ed Immediately aller they a.. lIn1shed with lhe phase of worlr Involved. Safety makes time lhe 8S5ence of d11s paragraph and therefore if SUBCONTRACTOR 'ails to perform a clean up runctlon. CONTRACTOR may proceed with thai runctlon as "Judg.s necessary and In Ih. manner " may d..m expedient, and lhe cosllhereor shall be charged 10 SUBCONTRACTOR and dedtJcted lrom monies due under this Subcontract . R: GUARANTEE SUBCONTRACTOR guerantees aD malerlals and worlrmanshlp and agree, 10 replace at hi. sole cost and expense, and to the satlslactJon or CONTRACTOR, any and all malerlals adjudged deredive or Improperly Inslalled as well as guarant.. the OWNER and CONTRACTOR against 1Iab/lily. loss or damage arising rrom said installation dutfng a pertorl of one year from complellon and acceotance or the wor1c mvered by the prim. corlract. "however. the period 01 g.......,.. Is sUputated In ..eess 01 one year by the Contract Documents. SUBCONTRACTOR shall be bound during Ih.longer period slipuIated. S: INDEMNIFICATION FROM PATENT RIGHTS SUBCONTRACTOR shalllnderMlry and hold CONTRACTOR hannless agalnsl any claim, suit Of action, or any alleged violation or inrr\ngement or palent rightS which may be mad. agalnSI CONTRACTOR by ..ason or Ih. use in connectlOn with or as a pad or lhe perfo<mance 01 the wor1c or the furnishing of the meterfals hereunder. or .nythlng _I. now or may hereafter be cov.red by patent, lXlPyright Of trademar1c, and also against alt.xpense, Inc:IudIno aIlomey's f.... which CONTRACTOR may IrlQJT In d.r.ndlng or adjusting any such claim, suit a< adlon. T: ASSIGNMENT OF CONTRACT SuecONTRACTOR shall nol, withoul written Q)nsent of CONTRACTOR, assign. transfer, f'Or $ubfel any portion or par1 of the wort!; required bv this Subcontract nor aSSfQn any payments hereunder 10 others. CONTRACTOR may aNlgn or transfer the whole or part of ltis SubQ)ntract, and his rights hereunder, to any corpotallon, individual. or partnership. U' INDEPENDENT CONTRACTOR SUBCONTRACTOR Is an independent contrador and shan be at ht$ sole cost and expense, and WthotA: Increase II Ihe Con'rad Price. comply will all laws, rules. ordinances. and reoulallons 01 all governing bodl.s having jurl1dlcliO, over lhe wort!;: obtain aU necessary permits and licenses therefor, pay all manufacturers' taxes. saleslaxes, ule tax processing taxes. and aU rederal and slate tu:es, Insurance and contrtbuUo". for Sod.. Security and Untmploymel wlllch are ff1elllurDd by waoet, sarlri.., Of other remunermlott paid to SUBCONTRACTOR'S emploYHI, whether Ittvted under eldlUng or aubaequenUy enacted laws., rules, or regulaUona, SUaCONTRACTOR. upon request. lI'Ia" furnish tw'dence uti.ractOf}' to CONTRACTOR that any or aU of the foregoing obliQ.1ons have been fulftlled. v: IMPACT ON PERFORMANCE Any act or omission 01 CONTRACTOR ..nlch SUBCONTRACTOR mlghl ct_ as an ..wse for hla 0,," lanure to perfonn .haIl be deemed waived by SUBCONTRACTOR u...... he .halt notlry CONTRACTOR at hie Intention 10 assen such excuse w1ttMn len days alter the octUTBOCe of any such act or omIssion. W. ARBITRATION Any controVeBY or ctalm arising OUI or relating 10 this Jlgr_, or the breach \hereof. shall be _. at lhe opliol of the Conlractor, by arbitration In acconlance with lhe Construcllon Industry Atbllrallon Rules of the American ASsoclat'on 01 Arbitration and judgment uporllhe awanl rendered by lhe Arbllratorts) may be entered In any courl having jurisdiction Illereof. X. ATTORNEY'S FEES In the even! either CONTRACTOR or SUBCONTRACTOR Inslhutes suit In court against lhe other party, or against Ihe surety 01 SUCh party, In comectlon wIIh any dlspul. or mailer arising lInder \his Subcontract. and If CONTRACTOR o<evails In lhal suh, CONTRACTOR ,hall be enlllled 10 recover from lhe SUBCONTRACTOR Its attorney's rees It1 reasonable amount. wtIlch shan be determined by lhe court and Included In the judgment In said suit Y. MATERIALS Submlttats (brochureS, shoo drawtng., and samples) shall be sent to CONTRACTOR as reqlifed by ger1GCat contract buI in no cas. shalllhls pertotI..ceetl 30 d.ys beyond recelol of lhe subconlrot1 agreement fa< ....chlled.. approval. All malerlalsto be as .pecilled In lhe contrac:l documents and musl be otrtcIty ad_to. If however.lhe product_ been dlsconllrwed or cannot be furnished lor a specific .....,n. SUBCONTRACTOR Is to notify CONTRACTOR within .0 days from receipt 01 the corlract wlIh lhe proposed .ubstllul. and must obtain lhe WIlllen applDvol 0' the An:hitect. Unless olho.....se restricted by the general contract, allsubslilullon requests musl be submitted within fS days lrom Ihe date 01 the General Contract. Any expense Incurred by Ihe CONTRACTOR, other subcontractolS, 5UIJIlI1erI or OWNER beCause 01 a subs1ltut. mate<1aI or method, .ven though approved by the awanllng authority or their ",...senlaliv., shall be ..lmbursed to the party Incurring the ..pense. All subSlllullona must be approved by "'" ARCHITECT, OWNER and CONTRACTOR. Any and alt mlllerials specl1led or called fOr on lhe plans to be furnished under this _n of .he worlr will be so furnished and Installed. even thOugh they may be specined or shown In another section of the pians and/or specifications. If dupUcac:lon does occ~. credit will be required from both SUBCONTRACTORS and change ordetl Issued 10 adjust the mntract price. Z: INDEMNITY CLAUSE RE: SAFETY SUBCONTRACTOR shalt at his own expense oonfonn to lhe baste safely policy of the CONTRACTOR and a>mpIy wilh all laws, anlers. regulations and alatules wllh resoect 10 safety, accId..... _""'Ion, safelyequlpmenl & prac\lces and shallmmply wi'" all specmc safely requirements promulgated by any gov_ _Y. including. witheM IImllallon, Ih. requlremenlS 0' Ih. Occupallonal Salety Heallh Act 01 IgrO. lnc:I....v.. and all succeuors and amenclm.",. IhereIO, and all standards and reoulatlons which have been Of shall be promulgated by the pantes Of agencles which edmlnlsler said Acta. SUBCONTRACTOR shall have and ..erclse ,iAl responslblllty "" compliance lhereunder by Itsell, lis agents. employ.... m".lIa1men, and subaIroaclo~ with "'soect to Ita portion 01 the _ on Ws Project; and shllll directly receiv., resoond 10, defend and be resoonstl>le for any cIIIIlon. a_. Rne or penalty by reason of SUBCONTRACTOR'S fallur. or failures of SUBCONTRACTOR'S agents. ernpIoy_, materialmen and subcontractor to so comply. SUBCONTRACTOR shalf Indemnfy and hold hannl... CONTRACTOR and OWNER (Including lheir agents and employees) lrom and against any Nab/Illy, loss, damag.. cost. dalm.. awards. judgment., t1nes, e'pen.... including litigation .xpenses, ........ble attorney's lees. dalm. Of lIeblllty for hann to persons (Including death resulllng lherelrom)or property. .xpenseslrtCUrTed punuanI to Of att.ndanllO any hearings or meeting and any Olher applicable cost caused or alleged to have been cauSed by SUBCONTRACTOR'S fall.... 10 fulM lhe covenants selforlh In IhIs _raph, including but not Ilmlled to lhe use of CONTRACTOR'S. OWNER'S Of others equlpment, holslor e\evalots, and/or scaffolds. In lhe evenl SUBCONTRACTOR rails to comply with any citatiOn Issued by the Secretary of Labor, any onl.r Issued by the OccupalJon;11 Safety and Health Review Commlulon of any olher body responsible for the administration and/Or enforcement of any stalute, reguaUon Of ordinance relating 10 occ:upalfonm health R safely within lhe period specified In any such dfaUan or order, CONTRACTOR may, In his dlscrellon, enrdse the rJohl:s and remedies provided him under the 'erms of thi. Subcontract. Including. but not IImlled to, the <IlIhis and r.medies provided In P..agraph H Recourse by Contractor M: INDEMNITY ClAUSE FOR EOUAL EMPLOYMENT OPPORTUNITIES VIOlATIONS SUBCONTRACTOR shall al his 0"" .xpen.. con'onn 10 the equal opportunlly requlremenls 01 the corIract documents .nd 10 like policies or Ih. CONTRACTOR and In addition, shalt tomply with all equal employment ooooflunlly requlrem.nts 01 the Civil Righi. Act 01 tll64, and any other appIlcalll. f_, ..at., or local act, onler. s'atul. or ordinances. plans or programs. Incluslv.. and all successors and amendmllrla lherelo, and all plans. programs, slandanls and regulations which hov. been or sIlart be promulgated or approved by "'e pa1les Of agencl.s which adminlst.r said Acts or Onlers. (hereinafter collectively ..'erred 10 as EEO _). SUBCONTRACTOR shall have and exercise full "ljXlnslblllty lor compliance hereuncler by Itself. Ita agents. employ_, materialmen and subconlractors wllh respedlo Its ponlon 01 the Voll", on this project: II shaff dI1edly receIv. and respond to. defend and be responsibl. ror any dlallon. orrIfl{. dalm. ctwve. or criminal or civil actJons. arising by reason 01 the lallure of SUBCONTRACTOR Of lis agents. employe.., matertalmen and SUb<:onlrllCtors 10 so comply. reo",,"esa 0' _hfl{ s.uch non-tompliance results 'rom active Of' passive acts or nmlSsinns or whether such non-cQmpliance Is the sole or contributory cause 01 any of IhoSe mailers against which SUBCONTRACTOR II obIIgaled hereunder to indemnify and hold hannless CONTRACTOR. SUBCONTRACTOR shalllndemnlly and hold hermIess CONTRACTOR lrom and ag..nst any Ilablllty loSS Oncludlng any Io.s 01 profits Of JlRlspecllve lIllYantage occasioned by lhe 'UIll8nsfOn. can<:e1Ia1lon Of lennlnatlon of any contrac:l, Of CONTRACTOR'S e1lg/blllly lhere/or). damage. OIlsta, daim.. awanl.. ludgments. IIn.s. ..pens.s, Including IIl1QaUon ..penses, ..osonabl. attorney's ,_, claims or Ilablllty ror harm to persons or property, .xpenses Incurred oursuant fo a< attenclanllo any hearing or rMetIng or OIly 01'- .p~ cosls wh"'" may be Incurred by CONTRACTOR resulllng from SUBCONTRACTOR'S faltur. to fulfill the __s 581 forth 'n tNt paragraph. In the event SUBCONTRACTOR falla to comply wIIh any of.he aforementioned EEO laws. or any Judgm...... onler or award ISsued by lhe Office 01 Federal Cortfrad Compliance, Urlled States Department 0' LabOf, or any other lederel, sla'. or local agency or any court of I,..,. or any olher body ..sponslble for the adminlslrallon and/or .nforcement or any EEO laws. wilhln lhe periorlspecilled In any such laws, judgment. onler Of awera. contractDr may, In his dlsaetlon ....erds. the rights and remedies provk:led him uncler "'" terms olWs S<obcontracI, InCludIng but not tlmlted to. lhe rlghls and remedies provided in Paragraph H, Recourse by Contractor. BB: DISPOSAL OF EXCESS DIRT Th. SUBCONTRACTOR shall" his own exp..... haul away lheir excess dirt rrom Ihe site unl.ss directed to the conlrary In WIlling by the Job Superintendent CC: RECORD DRAWINGS If required by 'he lXlnIratl doc""'..... a SIll or pia.. and speciflCSllons labeled "re<onI" dtaWings: will be avall_ on lhe job site. Each SUBCONTRACTOR must maintain IhIs set up to dat. wIIh aIt the changes III any) In oompllance with the contract documer1S. ThIs "reaJnf' set must be updated _least onc. a week. DO. COMPLIANCE BY OTHERS R E eEl V l:: l.J All second lIer or other type subcontractors of SUBCONTRACTOR shalloomoly with all requirements herein. ; II { II :~ .lllli Unsigned Subconfract . 0: Vendor (2), C: PM, FS Signed Subcontract - 0: Vendor (I), PM (1), C: ACCT, FS Page 4 of 4 7/03 0"452 Exhibit One - Contract Documents Country Inn & Suites Mechanicsburg, P A Chon Motel Enterprises, Inc. Country Inn & Suites Mechanicsburg, Pennsylvania Job # 1258 To Subcontract # 3129, dated November 18, 2003, between WESTRA CONSTRUCTION, INC. and D. C. GUELICH EXPLOSIVE COMPANY I. Contract between OWNER and WESTRA CONSTRUCTION, INC., dated August 26, 2003. II. THIS CONTRACT INCLUDES, BUT IS NOT LIMITED TO THE FOLLOWING: . The subcontractor is responsible for all quantities ordered, coordination of deliveries, warranties, unloading, and storage of materials. · Clean up and removal of all debris created by your work force. No recyclable materials are to be placed in Westra Construction, Inc. provided dumpster. · Any additional work beyond your contract must be approved in writing by the Superintendent or Project Manager of Westra Construction, Inc. Work completed without approval will be at the subcontractor's own risk. · Adherence to the project schedule. · Adherence to Westra Construction, Inc. 's, Safety Policy. III. Contract Specifications Country Inns & Suites By Carlson - Standards of Architecture & Construction - June 2002 Country Inns & Suites By Carlson - Standards of Interior Design - June 2002 IV. CONTRACT DRAWINGS INDEX OF DRAWINGS: DATED LATEST REV. DATE SITE DRAWINGS: Sheet I of9 Cover Sheet Sheet 2 of9 Existing Features Plan Sheet 3 of9 Site Plan Sheet 4 of9 Grading Plan Sheet 5 of 9 Misc. Details REL~'- 04121/03 04/07/03 04/07/03 04/07/03 04/07/03 10/07/03 10/07/03 09/ I 0/03 09/10/03 10/07/03 Initials: rn,,\ 1\ ~. Dated: RECt:l v c, OFf" II' . .. " ;l / fll: i Initials: Dated: "rl EXHIBIT TWO COUNTRY INN & SUITES MECHANICSBURG, PA t'AJt ,,(Il'I '''"J-flun D.C. GUELICH EXPLOSIVE CO. High E)CpIosives - Ammonium Nitrate F9f1illz9f P.O. BOX 245 THOMASVILLE, PA 17364 Richard Krisch Westra Con9truCtion Inc. 4002 Fenton Ave. Harrisburg, P A 17109 Re:Sanitary. Sewer off Rassmayne Road Mr. Krisch; . Thank you for the opportunity to prepare this proposal on the above referenced project. Our prices are as fellows: November 17.2003 Drill and Blast SawBr Trench (approx. 600ft @ 10ft. deep )..............................$l1.95Jlln.fl The above. proposal is ~sed 01"1 the foUowing: D.C. Guelich Explosive Co. is' responsible for. 1. Drill and blast operations to be performed in compliance with Title 25, PA Code, Chapters. 210 and 211. . 2. Blasting "ability insurance. ----3.-ABBist inObtainiriirPA DEP Blasting-Activity Permit 4. SqM<tulB delivery and use of explosive materials so that at no timB will storagB magazines be neCBs&ary onsite. 5. Special bonding.Of permits - additional charge. 6. One seismograph per btast. it necessary. . 7.-A11 qUantities tci-OO-cilcilitea from blast reports-a:na drill logs. 8. No back charges may be leVied unless agreed upon by both parties In wridng. D.C. ~U8nch Explosive Co. reserves the right to take action to correct any situation concerning drilling and blasting. .9. All provisions of this proposal will become an integral part of any subcontract agreement. Westra Construction Inc. is responsible for; 1. Traffic control, patrol vehicles and signs. . 2. Blasting notices if required. 3. Provide engineering data for determining depth of holes and grades. .4. locate e)Cisting utifitlea. (one call ) 5. Off road fuel for drifts. 6. Stemming materials to blast site. ( 1 B stone ) 7. Pre and post blast surveys if mquired. .. "., 8. Equipment and operator suitable for pfacement of blasting mats it requir9d.__/~ ,.. ~'- .......- RECEIVED nF ' .. t f) [, IDn.J Due to lacaUo", rock formation, and the possibility of voids, mud seams etc. a percentage of oversize material may be encountered. , . D.C. Guelich Explosive Co. reserves the right to suspend blasting operations when the blaster in charge determines blasting operations will cause damage to any existing roadway, utilities, structure or hann or injury to any person. Any additional b1asdng done or requimd by Westra Construction Inc. should this situation occur, will be at the sole liability of Westra Const. ~ ... ~~ EXHIBIT TWO COUNTRY INN & SUITES MECHANICSBURG, PA Prices are based on the above mentioned parameters. If parameters change, the job may be done on 8 time and'materlals basis. or an adjustment of focMge costs. Once notice to proceed Is given and the project is halted cb to no fatJt of D.C. Guelich Explosive Co. drill nmtaI, administrative fees, mobilization and demplilization charges wid be invoiced. Thank you once again for this OPPOrtunity. If you have any QUeadOl'18. pleaS9 contact me at 717 ~ 792-5263 (office) or 717-813-1354 ( cell ). ~~ Them Thompson Yark Area Manager AECEIVcU . flEe 0 !j 100] '-----~-- .., '~~~t',~,~'";,,,\;,~,;,,,,~,""J-.<1,;,.~,jj,t;~_~~-,-;,:~i':.~~{' ',' "T .:- -, ~WeStia;'j~~Mlestra Construction, Inc. f~f~7;~~';Eco.~"TRUc.iioN(":'NC3;:)J~~p';-"~'r:;J Equal Employment Opportunity Contractor V.,'"7:~~-"~:~estraw~i.com ;,~_~;.;?,~ " ;-"'. ~ ",., -". .' ".', -~--........... '"~'lr,;- --'~'i:~i'+ItTf;~"IQ'!"".~f:~~~"Mlfk.,,;i";'~,,,,~~~~~#o""'~_~'V~~,,,~_~__,,~ '.'. ',,' ;\. ". - -, ~-~, ~-., , " ",..,., . . f: . [J CORPORATE OFFiCE Ji{J:PENNSYL VANIA OFFICE 0 MINNESOTA OFFICE .CJARIZONA OFFICE < '. , ~'::');;';'<0/7~85 HlGHWAYA9" " \" <"~ :'4002"FENTON AVENUE '4355-PEAVEY ROAD: SUITE'300""'2715W:~GROVERS;'YE;'SUITEl00:2;;~ F~\;:'~":;;!:~c:'WAtiPUN.WI 53963- . HARRISBURG,PA 17109 CHASKA,MN 55318 PHOEN~;AZ8505:)'-""- , . ft,;.;';:L~.,;~~i~PHONE; (920) 324.3545 .. PHONE: (717) 561.8098 PHONE: (952) 556-8700 PHqN~:;f (602)i79~"()()ZO~ ":-~f~~~;, .. ~:;, fi~~j\",:~ffii:, (920) 324-S951 . '. . .. .'. . FAX,.. (717) S"..... . . FN< (9") SS6-SSS2 FAX, "(602) ,.,:00..' ""'M.. .' \ ,. . k~:"~''''~':;;o.~!.c'' . " , . ~.'i;'~ , "'",. I'~",:,i :i.:~To;~5$~;i; D.C. Guelich ExpfosiveCo. 0 :5~tco;:~t:~: Mr. Thom.Thompson.:. -, ... CHANGE ORDER NUMBER: I 1 ~~:'::~~:!!/,;~:~~>,;:'~\:' Post Office Box 245 :-. Date: I Monday, May 10, 20 ~,'~'!'r;.'.' Thomasville. PA.l7364- Exist. Agreement Date: I 11/18/2003 r~j~ct:IChon Motel Enterprises. Inc., Agreement #: I SC I 3129 I S IJOb #: I "~'~:Ylj<::;.l,_~,::..,. ,-..'''~,'''''';l'''-.~_.~.. .':.......:.~.', ".", " '~.,.: ~ "'i"'J!;~..~.!".,. -::-",!I;,""li""'-c';'",..,,,~ , , _ >'d. _ ,,,, ..,,,~ "'.,.,.~__,... ..... .__. .' ....O~E:1PL:'EAS~SiGN ~ND':RETURN'BOTH COPIES TQ W.ESTAA'.CONSTRUCTION,'INC, :WE'WILL RI;TURN <" .~;; .:.... .':> :". I!~" .... .' ,'.' . '. .", ''':' . -.. '-'YOUR EXECUTED COPIES'ii?THANK YOU "k''', '., ., ",'_'_. _~ 1'._, .<, fl~"':!:or.' ".:~ ......:..J!o ........ .' ..,..... ',' ,~.,.' .' , ,\" ; .'.. .. " .. E" :..~;:i. " .::> "N;'~h> ." '" '. . '. ". .' i:':t.::: Wo. hereby agree to make the change(s) specified below:::::{';; ':." ;.' ,. .. t .~._~ __'''_.. __'_ _ _. _ _. '" . '_"__. ____. ______._ _'___ .__.. ___.. _.____ _..._____. _ _..._._____...-__. _"_'__ '_. '_ _'_ ;!~ .': 'Cost Code 112.1305 CC #511 :. ~~f,;..C~'.I~:~:.-.:'''::..'~'..'.~::.'~.~'~'.''.'..'~:_~-_:~-'~'.~'.-':'.':' . :..... :...~-...,,- - -.....--...--.. -'-""_.. ... ,,_. ...... ,~~...: ;:~ . Increase subcontract agreement to cover additional frillrn and blasting charges. f~~~~~;:0:-~. -,,-:~:~:f~=--~~::;: :-~~~~, :'--~~~ ."'";..~~:~.,'.:.,'., . .' ~, . '" .. ....,f-:." , .:,'.. . ..' .'. ~<");C"',?U?fl"'~'" .". I.., · ..... .. .. . .. -.,' ""r'ddAY"l'll 2UU4""'" c......;. __J~.: _. . . . ~~.~~~~~~;,,~~~:---,.==~~::::~ :~~;;'3:~,' .~;;"',:::. =s:~.:;;-c~-~;.'.. ~:' ~. .... ....~..~ ........ .. .;7".. "',.., "-:::'M -::--::;:-;;.~.., ~-.-.-. "- - .-.-- .- - -.----....,.---..p:eSi1i~WoI.,~.-........___.._... ____ __! .....0;: ._.... ..........~~..._... ::~i;ifi~f~~~~;~~,~t;~::,:::+:-., ::~---'---~~ :~:.: ---,---:--'---"- - ..' -:< '. . ~~~:-/<:.i ~., ."-::'/ .........:... ....... .~..~ -.:'::".",;:- ~_...__.---.-----._.--_._-..,..------u-~'(-.2-t}.-.2QUJt---.-_._-.-----______.. .' ~:" ~!.~~.?;;:;l;':~:,;;:!;;;";;1:'~~ ~.,,,::. . : ~',~~"'~ ;':;' .:' _. ,. '. . ..,.;, ~ '.I.~; c;. " . rWE'AG.REE ,......lo:m...,h. """",o(s'spoclfl.. above .. ... "".. " -- - : - - n -.' -: -- - : -- _ -: -.>' " t 'I - . $1,995-34 I \~ ' :. '{-..fOFf.ERQR:.:~t. ....~:..~.~.~hiD.C;'.GU.IICh;eIOStJ::,V o. ,.,.'_ : ....: ,....<::......".. ;.~,:" ...... .....:...... ~.....:. ': .:.,' .""" "':.11'''''':'' '. ~};;~;,;}\':/'~ ~'." .,' PREVIOUS CONTRACT AMOUNT... >' ;. I . $1615500, I.... iW.:, SI9~"~~:: ' ./ ~:.: r "T- . . "'~""'" ' . '.., . ::' ':: .':,.. . :.,'-: 1.-' ') D~lo: ., <:",-, 17",,(. "., '. .,. ." ' . 1~~ '-!l!MSED CONTRAcT TOTAl.: _ n ... ,> ''''', I" ". '$1 r 150.34 I ,. ;' ..;, .-..,.,.... - <" ",," '. 'C.. .~.....' " ~ _~" '" , . ~ ..;. '~I~ -rl~~:~~;;:;::r~;~~ =~~::~.~;. '.; ::':,2' ,:,~ bi:~": ~~\}.> ~. ....: .~ ". . ,All work to bo perfonned under same lerms and conditions as'. ;;..... 'r" .' ~:0ti:r.;;,:)",;,~ L,,:,;;,.~,,_~,~. Richa'rd- K-n'sch-;' '. .. \" .. ..... ,.... . "'., .. . '.. ~..,.' "'.!, ."'t.. .... .' Illi! · "Is;>~cifled In original conlract unless ~!herwise stipulated. )t:x:';',1,---:J11 ~":.;;:.,~' ;, :, \';;',~ "'~'S I P . t M . . .,". :: " .~ .~.. ,;. .. ..' ..' '.' ',:..:...., . ,.,>I'! ", '."',,-,;,,.,,,,, ,- '. "~" ~)'" el10r rOJec anager.... "'.' ~,I:: '. ',,\:,;:'< '. . . . ""~:;';;;;;;;;i'i'~ Tef. oCf'iJ#.., '. . ......, \',::i : . :. . . ",- . ...'," . .. . ..c<,:~~:::. . __ :)'. '. NOTE: This ClJange .Order becomes part of and in conformance \Vi~h;~~h, exis'ting contract. . ",. . .' ,,' '. '" ~. ,.. ',. -, .. .. ".' . ..~!:"'~,~'f~/;. ~.2r:it.';:~UnSigned Change Order - O:'Vendor (2).C: PM, ACCT. FS '. VE NO 0 R .:~...., "'~;;'i'~;~'.:Slgned Change Order - 0: Vendor (1). PM (1). C: ACCT. FS " ~~~:;:'. " -' :~.. ~ ,t!"1 CHANGE ORDER ." . '.; \: 1258 ,:. ".. . A!TIQunt;,' . .. ---. I -----.--..---.-7"':' ;.. , '~ ,".--;':''; . ,.,;,...,~)\.: $1 ~995~~" 1~{~'~ ~i\f~''-!Jf:'' - ~>, ~'!.<;:jv.iJ -, ,.. . ~ ~'^ ~:."I~ . ...~:J . ....1 ;. .. . I .~':'-:""7"-- --:-----::. . ~ ~~.y:..." J- .:':.~ ?} :", 1'/~<" >""'~~~~'~::'ri.~ ..~' (.~d..,::.." ~ " ,.'. '-::,-~,.: .. -'''.'. ... .., ....,' . , . -.--....----..-.- . ,. c',/:" Sv37 VERIFICATION The undersigned does hereby verify under penalty of peI]ury, that he/she IS President , of D.C.Guelich Explosive Co. , Plaintiff herein, that he/she is duly authorized to make this Verification and that the facts set forth in the foregoing COMPLAINT are true and correct to the best of his /her knowledge, information and belief. lur~ , (Sign in Blue Ink) MEK00773 OVOO 1 10/26/2004 N (:) 'Ig.. ~ '1 Crt .Crt ,() ,.." c c;:;.:> ~ "- W ~ :r}5 ~.::.';) ..r;- ~ () 0 ~ 8 N ,- f,J! c> , -i l"1'i:D ~ <" r- ..0 -J (/J N :ge:J ...~,. ~ ?~:< I.D C) , a' fi' p:. :1">- :?r? ~~;;, ::J: ;;''':':; -r-~ 1- C5 :,.,~ () urn ::;1 :--1 J> .., ~.CJ co -< "' .J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION D. C. GOELlCH EXPLOSIVE CO., Plaintiff, No. 04-5451 Civil Term 'IS. WESTRA CONSTRUCTION, INC. PRAECIPE TO SETTLE AND DISCONTINUE WITHOUT PREJUDICE Defendant. FILED ON BEHALF OF PlaintifI COUNSEL OF RECORD OF THIS PARTY: CHARLES E. BOBINIS, ESQUIRE P A J.D. #30665 CHRISTIAN C. HUGEL, ESQUIRE PA J.D. #76062 Bernstein Law Finn, P.C. Firm #718 Suite 2200 Gulf Tower Pittsburgh, PA 15219 412-456-8100 DIRECT DIAL: (412) 456-8102 BERNSTEIN FILE NO. G005370l ~E~007872"001 12/7/2004 .. ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION D. C. GUELICH EXPLOSIVE CO., Plaintiff, vs. Civil Action No. 04-5451 Civil Term WESTRA CONSTRUCTION, INC., Defendant. PRAECIPE TO SETTLE AND DISCONTINUE WlTHOUT PREJUDICE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Settle and discontinue without prejudice the above-captioned matter upon the records of the Court and mark the costs paid. ~ ~ . Bob] PA J.D. #30665 Attorneys for Plaintiff Suite 2200 Gulf Tower Pittsburgh, PA 15219 (412) 456-8100 BERNSTEIN FILE NO: G0053701 Sworn to and subscribed before me this -80#) day of ap0Q~~ , 2004 11/,\ {\\ru)~~o ~ ..J:::t~ Notary Public NWEA~':~NNSYL\,j~'ANIA Michelle L Grah8m. Notary Public Cily OI~. Allegheny County My CommieIIon expires Apr. 16. 2008 Member. PennsylvanlB AssoclBtlon Of NotBrles MEK007872VOO 1 12/7/2004 (") ~ "i>- \:" ;::Rr~ ~f;; ~~U =< 2:::-:) 4e: )>c: ~ =<: .. '" r--> <::$ c::::> .s:- o rT1 n N co o .,., ~~ -08 ::0 l- 00 ::t =+~ '20 ':'--rn S dE =-< "'-..1 :J;:. w o ~ SHERIFFIS RETURN - OUT OF COUNTY CASE NO: 2004-05451 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DC GUELICH EXPLOSIVE CO VS WESTRA CONSTRUCTION INC R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: WESTRA CONSTRUCTION INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On November 30th, 2004 f this office was In receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin Co 31.25 .00 68.25 11/30/2004 BERNSTEIN LAW FIRM So answer~ / __?:._,./......:-~ ....~~<:!..:~;:._..-~.::.;~. ... -..... -_...-- ~~=;~-:/ R. IThomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this (., 'S day of C~ / 0l(JV5 A.D. C h1~ P~t~ In The Court of Common Pleas of Cumberland County, Pennsylvania D.C. Guelich Explosive Co. VS. Westra Construction Inc No. 04-5451 civil Now, ~b'revb~r~, 7004 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made atthe request and risk of the Plaintiff. ~r?/ y.#' :or ~~","~~~J , . Sheriff of Cum berland County, P A Affidavit of Service Now, ,20_, at 0' clock M. served the within upon at by handing to copy of the original a and made !mown to the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before me this_day of ,20_ COSTS SERVICE MILEAGE AFFIDA VIT $ $ . . '" @Hite of tqp ~4P:rifI William T. Tully Solicitor J, Daniel Basile Chief Deputy Mary Jane Snyder Real Estate Deputy Michael W, Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania DC GUELICH EXPLOSIVE CO vs County of Dauphin WESTRA CONSTRUCTION INC Sheriff's Return No. 6893 -T - -2004 OTHER COUNTY NO. 04 5451 AND NOW:November 18, 2004 at 7:51AM served the within NOTICE & COMPLAINT upon WESTRA CONSTRUCTION INC by personally handing to BONNIE BERKOBEN-OFFICE MANAGER 1 true attested copy{ies) of the original NOTICE & COMPLAINT and making known to him/her the contents thereof at 4002 FENTON AVE HARRISBURG, PA 17109-0000 Sworn and subscribed to So Answers, :;K~ before me this 19TH day of NOVEMBER, 2004 Sheriff of Dauphin County, Pa. ~ Nor ARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. 1, 2006 ,~ -~~- lJ t::t:"" /1 By . '1~ 11 v~Vfiun Deputy Sheriff Sheriff's Costs:$31.25 PD 11/09/2004 RCPT NO 201337 TS