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3. NutlonullJnlon Fire Insul'llnce Com puny ("Nutionul Union"). upon Inlilrlllulion und
beliel: Is u New YOTk corporutlon nuthorized to do busincss In Pcnnsylvunhl, wilh its princlpul
pluee of business loculed ul 70 Pine Slrcet, New York, NY 10270,
4, On or ublJl/l Murch \2, 1992. ACA submitted u bid toPu\)OT IiII' the rebubilllution
und conslructioll, of certuin improvcmcnts lothc resl stop ureu locuted on SROOII I (ulso known us
Inlerslalc 81) in Cumberlund County, l'cnnsylvunlu ("Projcct"),
5, The scope 'If the Projecl work included, umong other lhlngs, lhc inslullution \lI1d
cxtension of the exisling on und oll'rumps, the expnnslonof existing purking lilcililies, dl'Uinuges,
improvemenls, und the instullalion of guide ruils lInd lighting,
6, On or ubout June 3, 1992. ACA wus uwurdcd lbc conlrucllllT the Project by
l'u\)OT ("lhe Prime ('ontruct"), Somclimc lhcTeuller, ACA lInd Pu\)OT cntered into the Prime
Conlruclll)r the perlllOnllnce of the work onlhe Projcct. Upon inllJrlllution und belief: u true und
correCl copy of the conlrucl is in the possession of \)ef'cndunl ACA.
7, Pursuanllo the tenllS oflhc Prime Conlrucl, lInd us required by lhc Public Works
Conlruclors' Bond Luw of 1967. II P,S, * 19\ el seq" ACA fumished u puymenl bond lllr lhc
pruleclion of c1uimunlS supplying lubor und/or muteriuls on tbe Projecl, and u perlllOllUncc bond 10
ensure ACA's perfOlJ11unce of lheir conlrucl work,
II, In or uboul July 1992, Kee,tu Quuy enlcl'cd inlo a subcontrucl willi Defendunl ACA
10 perlllOn certain curb und sidcwnlk work on the I'roject ("ACA/Kec,tu Quuy SUb':Olllruct"),
A lme und correcl copy ofthc ACAlKcc.la C)ullY Subcontrucl is uttachcd liS Exhibit "A", und
incorporulcd by rclcrence,
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\4, Upon Inlilrlllulion und belief, M'A wus puld hy PnDOT IiII' work perlimlled hy
Kee.lll Quny through Oetoher I~, 199~ ns liJllows:
u, 100% of Kee.tu ()uny's lllohill~llliOll,
h, 616 If of Plnln eellleUl work, Itelllll{)(I~t).t)OO \,
e, 4,97 ey C1uss A Cement concrete, ilelll "'001.0010,
\5, Kee-tu Quny's suheontruet price IiII' these Ilellls of work is $16,230,05, for which
ACA wus paid by PnDOT,
\6, ACA hns ouly pnid Kee,tn Quuy $1 0,4HO,05 lilr lhese items of work, leaving u
balnnec 01'$5,750,00 duc und owing Kee.tu ()uuy,
17, On or nbout May 27, 1994, nnd June 24, 1994. PnDOT puid Nnlionnl Union, by
wuy of severnl checks, IiII' lhe relllulnder of the work perlilrllled by Kee.tn Quny under lhe
ACAlKee-lu ()uuy subeonlrnet.
18, The valuc oflhe work perlilrll1ed by Kee-tu Quay for which NalionallJnion wns
puid by PnDOT is $58.\96,\2,
19, Kce-In Quay assertcd a c1nim uguinst NUlional Union nlthis doekel nUlllbcr under
lhe paymcnt bond,
20, On or nboul June 21, 1996, Kee.ta Quay settled its claim utlhis docket number
uguinsl Nnlional Union for all ilems of work till' which National Union wus puid hy PuDOT, plus
inleresl on lhose ilcms Irol111he dale Nationalllnion was paid hy PaDOT,
21, Kee.la Quay has nol been puid lilT the interesl on the ilellls of work Irom the dUle
puyment wus due by ACA until puymenl was Illude by PaDOT to NutionulUnion, whieb is (rom
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~,U6CQN.1 }1'^SJAGllll MUH
This Agreement moldc and (lnl(ll'cd Inlo lhll day of
Jul . 199ft by an<J bc!ween Ad~ms County AHhal ceo., a
PennYsylvanfi-Corporat"lon, h~vlng a princtpal office .t 614 Horth Front
Street, P.O. 80lt 1531, lIarrlsburg. Pennsylvania mos, hereinafter
called "Contractor", of the one part ' ,
- AND .
ReI! Tn QUllY Clllllltruct lOll
Box 388
lIuntontowll. I'A. 17229
, hereinafter
called the "Subcontractor", of the other part.
WITNESSETH:
1 . On July
between l'onnDot
the Owner, and the Contractor
, 1992, a contract has bHn entered Into
, ',erelnafter called
for the constructIon of SR0081-RI2
which Contract, Addenda, if any, Plans, Specifications, Addenda thereto,
General and Special Conditions all will collectively
be hereinafter referred to as the Principal Contract. The Subcontractor
does represent that It has carefully and fully examined all of the
documents that are collectively designated as the Principal Contract
and Is, thoroughly famtllar with each of them and 5ulxontractor further
represents that the site for the work has likewIse been examined and
the site for the work and the conditions present are known and are
familiar to the subcontractor. The parties hereto agree that the
Principal Contract as herein defined Is Incorporated by reference In
every part Icular In this Subcontract and Is a part hereof. In the
event, however, of any conflict between the provisions of the Subcontract
and of the Principal Contract, the provisions of this Subcontract shall
contro 1 .
2. The Contractor does hereby assign, let over and sublet
to the Subcontractor, and the Subcontractor does hereby covenant and
agree with the Contractor to perfonn and construct In a satisfactory
and workmanl lite manner and In accordance with the terml and cond It Ions
of the Principal Contract, to the approval and acceptance without
condition, of the Owner and of the Contractor, that portion of the
work of the Principal Contract as herein designated as follows:
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(a) Schedule of the .....urk
ITI!K , ~'!.!!!lli ty peocriplion Unit !'dce Amoun t
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0630-001 3564 LF l'la111 CeJllQnt COllcrete (:urb 13.10 46,688.40
0694-0010 40 SY Curb Cut Rampo. Type 1 SinRle '.9.50 1,980.00
1001-0010 12 CY Clnoll A Cement Concrete ,.85.00 5,820.00
9676-0001 624 SY Reinforced Cement Concrete 30.00 18,720.00
S1dewnlk, Special
9000-0000 .... 96 LV Scrccning Fencl! '.5.00 4,320.00
0608..,0001 L.S. Mobilization 5,750.00 5,750.00
Totall .,. $ 83,278.40
f\o QnJI (f.-(.. 01\ ~qdd, II.
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(b) Spednl Cuntlitlonll lo Schl!du1e of Wurk
Of 110ntl, I/O d1!1l1BIlBll!)
L BunCONTMC1'011 '1'0 1'lilll'Olttl WOIlK IN ACCOIUlANGI\ WI,TlI TIIIi PllO.lliCT SPECl FlCATlONH ANl! COlfCllAl:T
DRAWINGS.
2. ALL MATER) AI.s SUI'PLIlr.tl ANl)/Oll lJSliIl UY 'I'lIli SlJllCONTIlAGTOll SIIM.I. Hlil':T Illi(/UIIlliHliNTS ANI)
SPECIFICATIONS FOil TillS PIlOJEC'1' ANlJ AI.L HATlillIAI. Sllll'HENTS TO Ill'; ACCOH1'ANlliIl IlY CEllT"
IFlCATION.
3. SUBCON1'MCTOR IS RESl'ONSIIll.Ii FOil AIJ~ILNS'I'IlA'I'lVli 1'llOCElJlJllliS ANIJ Il~;QUIIU:HENTS ASSOCIATliIl
WITII SUBCONTMCTEIJ SCIlEllUL~; O~' WORK.
4. SUBCONTMCTOR IS IlEQUlItf.IJ '1'0 FURNISIl ~;VlIJliNCE OF INSUllANCIl AS I\EQUl/llill IIY SPECHICATlUNS
AND/oR CONTRACTOR.
5. QUANTITIES OF WORK PlillFORHEIJ AIlE 1'0 1m VElllFlEIJ IIY TilE CON1'l\AGTOll.
6. SUBCONTMG1'OR nOUNI) TO PREVAII.ING WAG~; SCllliIllJL~; <ATTAGIIEIJ). CEIlTH'IEIJ l'AYIlOl.I.S HUST liE
SUBHITTEIJ TO CONTRACTOR IN A TlHE1,Y HANN~;Il.
7. SUBCONTRACTOR SllAl.I. Illi RIiSPONSIIlI.E FOil ANY l'IiNM.TIIiS ASS~;SSJiI) M;AWHT ClJNTMGTOR IJUIi TO
LAGR OF PERFORHANC~; IlY SUIl CONTMC'I'OR.
8. SUBCONTRACTOR 1'0 COHtIliNGli WOIlK WI'I'IIIN /,0 1l0UllS OF NO'l'lCEFRO~1 GONTMCTOIl ANI) PIlOCIiEll
WITII ALL DILIGENCE.
9. CONTRACTOR RESERVES TilE llIClll' TO I SSUIi A JOINT PAvtIliN'I' CIIECK TO SUII-CONTllACTOR MIll/OIl
MATERIAL SUPPLIERS.
to. SUB-GONTI\ACTOR REQUIRl\ll TO UAVE QUAI.IFllW AND l'ENNDOT Al'l'ROVf.IJ SlIl'lillVISOI\ ON PROJECT
AT ALL TIMES.
Il. SUB-CONTRACTOR REQUIRED TO UAVE ALL API'I.ICAIILE SALES TAX INCLUDED IN PRICES,
3. The Subcontractor, by executing this Subcontract,
represents and wanants to the Contl'actor that it is (jualified,
capable. experiellced ant! available to per Conn thl! Schl!dule of
the Work as set forth in paragraph 2 of this Subcontract under
the tel'lDS and conditions of the Principal ContrAct nnd this
Subcontract. ill the ljuantity Ant! for the amount tharein set forth,
and within the tillll! an J.R. dur1n& the execution of the Princ1pal
Conlract. designated. The Subcontractor t!oes further represent
to thl! Conlr8\:tor that where prequalificntion tu parfonn the work
in this contract is required by the lAml!r and is a condition pre-
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cedent to conlroctlng or Dubcontl'octlng to perfono ouch '..ork,
tha t the Subconlroctor io duly 60 pl'l'quoli fled ond wi 11 relllain
prcquol1Cled Cor ouch wOl'k fot' the duration of this Subcontract,
including any addition or extension thereof.
4. PROGRESS O~' WORX - The SUbcont.l"Octor will prompt ly
begin sdd work os ooon 00 he is notified by the Contractor and
wi 11 carry forward and complete SlIid work 08 rapidly 8S the
progreSB oC the work of the Contrllctor w111 permit. The Subcon-
tractor w11l furnish said materials, labor and equipment, prose-
cute said wor.k with diligence, without delay, and will not in any
manner delay or othen.lise interfere with the work of the Contractor
or other Subcontroctors. Should the 5Bid Controctor conclude that
a Subcontractor is unjust ly and without valid reason deloying said
....ork, or the Subcontrllctor has perCol"llled said work in a deficient
or improper manner I he 5hall so not i fy soid Subcontractbr by cert;.
fi ed or registered m.1il, or by telegrmn, selting fOl'th the complain:
in detai 1, and the Subcont ractor wi 11 h,we two (2) days from the re-
ee ipt of said moiled complaint or telegram to COl'rect the cO::lplsint,
In the event Subcontractor fails to comply with said notice and to
cor rect the complaint, 511id Contractor shall have the legal right
to take possession of all equipment, machinery and supplies i\'. and
upon the contract site, including, but not limited to, construction
machinery, equipment and supplies oC the Subcontractor and to use
the same to correct the complaint or to have the complaint correcte~
by subletting this work to others, and said construction machinery
and equipment as needed to be used to correct said \oIork deficiencies
sha 11 be used by the Contractor 01' any subcontractor designated by
the Contractor to so use the same, The Contractor shall charge the
expense oC the correcting work against said Subcontractor and de-
duct the same from the contrnct, and should the amount oC payments
due on said contract be insuCCicient, to collect the said deficiency
from the Subcontractor by legal process and/or surety company, or
its agents, by request or legal process. Upon correction of said
work. or the deficiency, the machinery and equipment of the Subcon-
tractor shall be delivered to Subcontractor, upon mtiee, at the con"
tract site. Subcontractor shall supply skilled and experienced
employees ready and able to work in harmony with the Contractor an~
wi t h other prime contractors and subcontractors and/or their e:ll-
ployees, acceptable to the Contractor, the Owner and the Owner's
re pres ent ati ves.
In performing the Coregolng work the Subcontractor
shall furnish all l/1bor, l'quipment. miltl'dals, supplies nnd every-
thing necessary or inddl'l1tal thereto or in connection with the
pc rformance by it oC its work as required /lnt! ClIlll't! for under the
provisions of the Principal Contract. It is understood IInd agreed
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by the parties hCl'eto that the qUlIntl.ty of ....ork os sho....n above
arc oppl'oximate only A\l~ nre o\lbject to increase or decrease
snd it i8 further un~crotood that all qUllntities of lIork whether
inc reascd or decl'ea5C~ arC to be performed at the unit price
above quoted and agreed upon and thllt the Subcontractor, in all
events, shall be entitled to be pnid Cor that number of units
finally determined upon by the O....ner, if the Oowner's determina-
tion is not acceptable to the Subcontractor, the Contractor shall
appeal such determination to the extent such 16 feasible and per-
llli5 sable at the Subcontractor'l> written l'equest to do 50 and at
the Subcontractor's cost and expcnse.
5. TIME ALLOWED FOR COtlSTRUC'flON OF PROJ ECT - It is
expressly understood and ngrecd by and between the parties hereto
that time is and shall be considered the eSl>ence oC the contract
on the part oC said Subcontractor IInd should the said Sul4contractor
Cail to begin, continue and complete the work' as herein provided
and should the Contractor suffer or pennit said Subcontractor to
occupy more time than required under this agreement, in that event
the said ~ubcontrllctor hereby covenants and agrees to indemnify and
save harmless the said Contractor from any loss or damage which may
be compelled to make good to the (Mner, Cor or on account oC delay
in the completion thereof, insoCar .15 said delay ....as caused by the
said Subcontractor. If the Subcontractor claims he is delayed in
the prosecution oC his ....ork through no fault of his O\itl and that
such delay is costly to him, he shall be entitled only to such com-
pensation Cor such delay as is allowcd and paid Cor such by the
()o,.rner to the Contractor to the extent such is attributable to the
Subcontractor's ....ork. Any such claim by the Subcontractor shall
be submitted to the Contractor in writing, containing all pertinent
details, by the Subcontractor ....ithin ten OD) days of the alleged
delay, Failure of the Subcontractor to give such vrltten notice
....i thin ten (0) days shall terminate any right of the Subcontractor
to make I>uch claim to the Contractor or the Owner.
6. COtlD~ATION OF WORK - The Subcontractor shall provide
s\U ficient. safe and proper facilities at all times Cor the inspec-
tion of the \lork by the Project Engineer, Architect and the Contractor
or their authorized representative, for the inspection of the Sub-
contractor's work IInd materials used or to be used. lie shall, at
once, remove all materials, and take down and rebuild all portions of
the work condemned by the Project F:ngincer, the Architect ond the
Contractor or their representative, upon receivl,ng notice in ....riting
of such condemnation.
7, ~:XTRA ~'ORK - All l'xtrll work to be performed by the
Subcontractor must be condensed to Wl'i t tng /lnd II rote of pay .1greed
upon beCore such work is undenakl'n, Said extra \lork ogreements
must be signed by representatives of the Contractor and Subcontroctor
and \lill be subject to the tenns /lnd conllitions of thill Subcontract
Agreement.
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8. Illt:!iNIF1CA'i'lON OF COlnItACT01~-I'An:lrrS AND I'ATWr
R I Gtl'l'S . The Subcontractor hl'l"cby covcnanlo and ogrces to
l.ndewniCy and olive honnleoo lhe Contl'actor (1'010 /lny and all
c:l/llmo or sulta fl'OIO infdn!:el/lenta of plltl'nte or violation oC
patent dghts, including all cosls /lnd cxpenr.cs to which the
Contl'ocLor IMy be put in defendinB any /lclion lhat IDOl' or he through
the ....ork oC the Subcontl'actor.
9. INDEMNIFICATION OF CONTRACTOR AND OWNER FROM ALL
LIABILITY - The Subcontractor ohsll hove charge of the entire
\Jork until completion and acceptance, and shall alone be Hable
for and shall poy all loss or damage cnulJed by him or by hia ser-
vants, agents or employees to pl'operty, buUdings or adjacent work
Bnd Cor any accident to persons that mill' occur during the per-
formance of the work covered by thllJ Subcontract or at any time
t herellCtel' 115 a consequence of the performance oC said ....ork. The
Subcontractor sh/lll observe nil Hnte and municipalitr 181015, ordi-
nllnces and reBulotions and shl111 deCend and save hnrm ells the Con-
tractor nnd the O.....ner Crom 011 suits and clnims whotsoever Cor 1055
of liCe or injury occurring to e:nployees of the Subcontractor ....ho
perCorm such work. The Subcontractor ngrees to Cully idemnify,
protect nnd sllve h.1rmless the Contractor IInd the Owncr from 1111 H.
ability from all c13ims, loss, dnmage, suits and actions of every
kind and from all costs and expenses in connection with such daLu,
suits and actions due to injuries to persons or damage to property
Io'hether resulting Crom accident, negligence or any other cause what-
60ever occudng during the performance of the work covered by this
Subcontract or at any time theresfter as a consequence of the per-
formance of the same or which may at any time occur or result CrO':l
or be caused by such work and if there arc any such claims unsettled
when the work herein provided for is completed, Cinal settlement by
the Contractor and Subcontractor shall be deferred until such c1al!!l5
are adjusted or suitable special indeoulity acceptoble to the Con-
tractor is provided by the Subcontractor.
10. INSURANCE REQUIREMENTS - The Subcontractor shall take
ou t and pay {or I
(a) Workmen's Compensation llnd Employer's LiAbility In-
6urance in accordance with the laws of the State of Pennsylvania
and the Federal Statutes.
(b) Contractor's Public Liability and Property Damage In-
surance. S.1id policy of insurance will be written to provide for
t he following limits $1,000.000,00 dollArs for all
da":la!;es arising out of bodily injuries to or death of one person,
tlnd subject to thAt limit Cor ellch person, n total of $1.000,000.00
dollars Cor oil dalOages arising out of bodily injuries to or death
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of t'olO or more perBono in anyone occident, and regular con-
tractoro property damnge liability insurance providing for a
limit of not lel.l8 than $l,OOO,OOO.OO dollaro for all
damages arising out of injury to or deotruction of property in
anyone accident and subject to that limit per accident, a total
(or aggregate) limit of $1,000,000.00 dollars
for all damages arising out of injury to or destruction of
property during the policy period. This policy of insurance shall
be endorsed os follows I to cover the explosives and collapse
hazards and injury to or destruction of wires, conduits, pipes,
mains, sewers, or other oimilar property, or any apparatuses in
connection therewith, below the surface of the ground, as such
injury or destruction is caused by and occurs during the use of
mechanical equipment for the pu~)ose of excavating or drillin~ or
injury to or destruction of property at any time resulting there-
from.
I
(c) Public Liability and Property Damage Insurance
covering the operation of any motor vehicle used by or for the
account of the Subcontractor in connection with the work to be
performed under this Subcontract. Said policy of insuronce will
be written to provide for the following minimum limitol Bodily
Injury Liability $1,OOO,UOO,oo dollars each person
and $1,000,000.00 dollars each accident, Property
Damage Liability $1.000,000.00 dollars each accident.
The Subcontractor shall furnish to the Contractor three
(3) copies of the policy and three (3) certificates of insurance
for the following of the above mentioned policies.
(0) Workmen's Compensation.
(b) Contractors Public Liability and Property Damage
Liability Insurance.
(c) Public Liability and Property Damage Insurance
covering the operation of motor vehicles.
All of the above mentioned policies of insurance shall
said policies shall not be changed or cancelled until
written notice has been given to the Contractor.
provide that
15 days
11. TAXES - The Subcontractor shall pay all the Penn~yl-
vania Sales and Use Taxes on all taxable items, and all Federal
Old Age Benefit Taxes, Federal Unemployment Compensation Insurance
on all labor furnished under this contract, as required by t~e
Commonwea lth of Pennsylvania and the Uni ted States Government, as
well as any other taxes, Federal, State or Local, applicable to or
occasioned by the Subcontractor's perfonnance of this contract or
employment of p~rsons hereunder.
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12. cotITRAC'i' CO~U'L IM1CE - 'fhe Subcont rector ohall
hblde by nil referenced ur identified prime contract proviaionB
fOl- federalal.d projectD, IItatutes, rUleD, regulations or pro-
cedureo appllcnble thC?rcto liS well aD by all such prime contract
provioion6 calling for obsel'Vance of certain P(!llnsylvania or
local stalutes, rules, regulations or procedurea ....hether or not
specifically referred to in this subcontract and whether or not
Conno or certificate6 arc ouppUed to the Subcontractor to achieve
such cOlllpliBl1cel without limitation ouch lIlattera inClude Federal
and/or State non-di6crimination pl.ovioions, rc-ncgotiation pro-
v islonB, IDinimum wage prov is ions, lint i kick-back prov 18 ions, pa1
day provisions, dll11y and weekly overtime provisions, payroll de-
ductlun provisions, payroll clossiflcation Bnd apprentice provlllon"
Payment6 under this subcontract may be withheld at any time to the
extent neceBslIry to affect compliance with this "r any other article
of this subcontract. Noreover, the Subcontractors shall maintain
il record of the lotal cost of 011 materials and supplied purchased
for .1I)d incorporated in the work and also the quantities of those
s?ccific materials and supplies and in the units 6ho\o/1l. Upon CO;D-
pletion of the subcontract, this record, together with the final
labor SUllnn.ll.y IIhall be submitted to the State Diatrict Engineer, for
.111 State and Federally assisted projects, for the project on the
State's appropriate fonn for such or on a fonn Bupplied by the prl'lle
contractor in lIccordance with Instructions thereon, The quantities
Cor the listed items shall be reported separately for roadway and
for structures over tventy feet long as measured along the entire
center line of the roadway.
13. ASSIGNMENT OF SUBCONTRACT. None of the rights under
this Subcontract, including assignment of funds, shall be IIssigned
by the Subcontractor without prior written consent from the Con-
tractor, Any attempt to aSBign the Subcontract will operate 8S an
instant forfeiture and repudiation thereof by the Subcontractor
and the rights of the parties shall be determined in the same manner
as though the Subcontractor had at the time of such attempted assign-
ment failed and refused to continue to perform the contract.
14. EXTENSION OF TIME - No allowance of time wi 11 be Ol.]de
the Subcont ractor for de 1 ay in pr cpa ring his drllwings or, in secur-
ing appl'oval of the Owner nnd the Contractor's engineers wTlen such
drawing!> arc not properly prepared for approval of the O\omer !lnd the
Contract.or's engineers.
Extension of time to be granted to the Subcontractor
wi 11 be the snrne only as is granted to the Contrnctor by the (Mner,
and will be in accord.1nce with the, Specifications in the Principal
Contract.
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15. CO~rRAqr AND LABOR AND MATERIAL BONDS - The
Subcontractor Curther agrees that he will simultaneously, with
the execution of this agreement, provide the Contractor, if
requeoted, with 8 Contract Bond, covering 8atisfactory'performance
of the work contracted, the penal sum of 100% of the amount of
the Contract, and on "Additional Bond for Labor and Materials,"
covering the prompt payment in full for utility services rendered
to sub-Subcontractors and for all materialo furnished, rental
for equipment used, and/or labor supplied or performed, in the
prosecution of the work, and also in the penal sum of 10DX of the
amount of the contract. Both bonds muot also be executed by a
Corporate Surety satisfactory to the Contractor.
Payments under this subcontract may be withheld at any time
during the life of same for non-compliance with the above bonding
requirements.
I
16, TERMS OF PAYMENT - The Contractor agrees to pay the
Subcontractor his portion of all payments received by the Contractor
from the Owner within lIeven (7) days after receipt thereof. It is
also understood and agreed that all estimates shall include the
materials on the site if 50 permitted by the Owner as a part of the
current estimates.
It is further understood and agreed that no payment on
account shall operate as an approval of said work or materials, or
any part thereof.
17, APPROVAL OF SUBCONTRACT - It is understood and ageed
by the parties hereto that this agreement is subject to the aP-
proval of same by the Owner,
It is also understooo und agreed that this agreement is
subject to the principal Contract in its entirety, entered into
by the Contractor and the Owner, relating to this particular pro-
ject.
18, CONTRACTOR' 5 RIGIITS TO WITHHOLD PAYMENTS-
IT IS UNDERSTOOD AND AGREED THAT 'filE SUBCONTRAC'COR
SHALL PAY -
(a) All employees unconditionally and not less
often than once II week.
(b) For all ll'onsportlltion and utility services
not later thun the 10th day of the culendar month following that
in which said services arc rendered.
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..
(c) .for ell materiala, tools, rentels, end
oth~r expendable equi~ent not later than the 10th day
of the cal('ndal" month (ollo....ing that in which 6aid materials,
tools, rentalo and equipment are delivered st the Bite of
the project.
A Contractor shall have the right to Io'lthhold payment.
from the Subcontractor, in addition to retain percentages a.
ilia)' be provided in the Principal Contract, of .uch counts II
ilia)' be necessary both to imure compliance with all of the terms
of this Contract by Subcontractor, for work performed by the
Contractor or other subcontractors in accordance with paragraph
I, of this Contract, and as necessar)' to pay all just clailps Cor
labor ond services, rental and materialn furnished in and about
said ....ork, which is the obligation of the Subcontractor to pay.
The Contractor shall have the right, acting as agent of the Sub-
cont ractor, to apply such retained llIIlount to the paycents o( such
just claims and for work required to be perCorcled.
19. SUBCONTRACTOR'S RELEASE TO CONTRACTOR - Upon receipt
of final payment, the Subcontractor docs hereby agree to give the
Contractor a dul)' signed release relieving the Contractor (rOll
an)' 1 iability in regard to monies due under this Subcontract, and
the Subcontractor will certify that all of his obligatioM (or
s~rvices, materials, equipment rental, tools, etc" incurred on
this Subcontract have been paid and that if an{ liability .hou1d
occur on his behalf, then the Subcontractor vi 1 indemnify the
Contractor.
,
,
I '
20. APPROVAL OF QUANTITIES - Prior to the acceptance of
final quantities, the Contractor shall give five (5) days notice
of such quantities fo the Subcontractor for his approval.
21. PRIOR NEGOTIATIONS AND AGREEMENTS - All negotiation.
and agreements prior to the date of this agree:lent are merged herein,
This Subcontract has been read and is fully understood by the Sub-
contractor.
The Contractor and the Subcontractor for the::lselves, their
successors, executors, administrators and assigns, hereby agree
to the full performance of the covenants of this ~greeQent.
22" TERMINATION - If I'ril:Je cont ractor' s work is termina-
ted or abandoned, if Subcontractor cannot work in harmony with
other Contractors, Subcontractors or their employees, is in breach
- 11 -
Oct, 6 '93 12,Yl
KI~1l10D ilK,
TEL 717-550-2113
r. 2
Addendum to Subcontract Aqreeme t datod July 1992, botwoon Adams
County A9p~lt Company and Kee
and sidewalk'work on projoct SR
Rest Arca Job' 526).
- Ta Quay Construction tor Curb
081-R12 Cumborland County (I-Bl
The below listed Changes are mad to the Contract I
ADD:
Item . llli:: Deser1 10n Unit 1'rice ~
0605-2060 1 Type M nlet 1200.00 $ 1,200.00
Or1g l.nal $83,278.40 I
Contract Amountl J
!
New Contract Totall $84,418.40
All other terms and conditions r main tho same,
Adams County Asphalt Co.
Kee - Ta Quay
Title: ------------------
d~__dl:~~l::!
~~
Titler --------------
Datol
~-----------------
Date:
_.(~L{f..J.J~'l___
COHEN & HUNTINGTON, P.c.
~......
Post Office Box 59449
SUIte 818
1515 Marla:l SIm:l
PblJaddphiA, I'cnns}'IvanIa 19102
ROY II. COJIEN
5'm'IfEN II, IIUI'l11NGTOII
IfRVII'/ II. WAXMAN
WI1JELD, HODGI.)Jl.
I08EllT L fIAMCIJN
(115) 56H7oo
.1oX (115) 56H066
.-
10 KINGS IIIGIIWAY wm'
1WlDONfII!1I), NJ 08055
(609) 55405209
0' coumn
. . ALl5A G. nnD
lOHN A. GJUMWl. '
\IIIUJAM 1I.)AME5ON ,
GlOIlll t. ,.w.u '
ROIlllllTA IoL DANXtI. '
10511'II1\. w.um. .
March 1/ 1994
. ~ AI*rt1ID I'f NJ
.. AUO ADIGT1ID IN DC
Mr, Norman Blair
Bond Claims Division
National Union Fire Insurance Company
of Pittsburgh, PA
70 Pine Street
New York, New York 10270
REI Ad8.\l1.8 County Asphalt Company ("ACA")
Bond No. 10-61-59
Projectsl Interstate 81
Claimant I Kee-Ta-Quay Construction
Dear Norman:
~nclosed please find pay estimate n18 along with copies of
cancelled checks, As you can see, check number 21194 is in the
amount of $33.616,01 and check number 021807 is in the amount of
$1/529,20, Additionally/enclosed are copies of the original
checks and memos submitted by ACA to Kee-Ta-Quay,
You have advised ACA that Kee-Ta-Quay has submitted a claim
against the above-captioned bond in the amount of $11 /707,50,
Initially, please note that ACA has been paid $16,~30,05 for work
done by Kee-Ta-Quay on this project, As you can see from the memo
for check number 21194, $8/950,85 of the total amount of the check
was for payment on this project. The checks show that ACA has paid
Kee-Ta-Quay $10/480,05 for this project, Thus, the amount now due
Kee-Ta-Quay is $5,750,00, ACA is currently processing this amount
for payment.
Any additional sums claimed by Kee-Ta-Quay will not be paid by
ACA at this time. The basis for this decision is that ACA has not
been paid by PennDOT for the items which Kee-Ta-Quay is including
in its claim, As you know, there is a clause in ACA/s subcontract
with Kee-Ta-Quay which states that, "the contractor agrees to pay
the subcontractor his aortion of all payments received by the
contractor from the owner," Since ACA has not received any
additional monies from PennDOT / it cannot pay Kee-Ta-Quay the
additional money it is seeking in its claim,
, ,
Mr, Norman Blair
March 1, 1994
Page Two
As soon as ACA pays the remaining $5.750,00 I t will contact
you and send you a copy of the check, Should you need any
additional information, do not hesitate to contact my office,
Thank you for your attention to this matter,
Very~lY yours,
ROY S. CORP
RSC d j
I
Enclosures
CCI Mr. Robert Mumma
ll'UO.f,l.
"
, "
PARTIAL RELEASB
KNOW ALL MEN BY TlIESE FRESENTS, that KEE-TA QUAY has submitted a
claim against Payment Bond Number 10-61-59 in the amount of
$ll,707.50. For and in consideration of the sum of FIVE TlIOUSAND AND
SEVEN HUNDRED FIFTY DOLLARS ($5,750.00), receipt of which is hereby
acknowledged, KEB-TA QUAY does hereby remise, release and forever
discharge ADAMS COUNTY ASPHALT COMPANY (tlACAtI) and NATIONAL UNION PIRB
INSURANCE COMPANY OF PITTSBURGH, PA. ("NUIO), their agents, employees,
officers, directors, partners, predecessors, subsidiaries,
affiliates, successors and assigns and each of them of and
divisions,
I
from any
and all manners and causes of action, debts, suits, dues, accounts,
bonds, covenants, contracts, agraements, judgments, claims and demands
whatsoever, in law or in equity including, but not limited to
$5,750,00 of the $11,707.50 claim on:
The Route 81 Reet Area Project 8R-0081-R12
which against the said ACA or NU, their agents, employees, officers,
directors, partners, predecessors, subsidiaries, divisions,
affiliates, successors and assigns and each of them, the said Kaa-Ta-
Quay, its successors and assigns, or any of them, now has, ever had,
or hereinafter can, sha~l or may have, for or by reason of any cause,
matter or things whatsoever from the beginning of the world to the
date of these presents but only to tha a.tent of $5,750.00.
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned hereby sets its hand and seal this
day of
1994.
witna...
ItBB-TA-QUAY
~'74'40..1L
COHEN & HUNTINGTON, P,C,
F\LE
Allu,ncrt .1......
l'U51 orne. lIux '\9....'1
I!lcv<lllh J'l""r
1 'II 'I Markel Slre.1
l'hlladelphla,I'.nn5ylvanla l'IIOl
IOY 5, COIINN
ITUIIIN N, IIlJI'n'IN<lTON
IANlJlL D, 110001,)1
aolllT L, .IlANKUN
)OIIN A, <lIPJINIIALI.'
(11\)\6401700
.AX (11\) \6401006
010101 I, PALW .
m'll'AlU) 510LlAIII
.mA L, KUlNK'
aolllTA M, .IlANKeL .
.mA),IMml
)01""1, 'lVAS.\IL'
UJoIII K1L<lAUI.. .
)AMII L, IWCK .
IlAlY IWN NINO'
NI1WLI M, DAYlNPOIT .
1101 UlJIIL OAK IOAP
lun'1104
VUIIIIU, NJ lHIOH
(609) 61H444
.AX (609) 617<)111
O. COlJN51L
.. AUlA A, .11LD
August 23, 1996
. AUQ ADMrrno aN ""
.. AUQ ADMITTID IN Dr.
t AUO"munw I.N WD
t, AUO ADNT1TID IN DI
. AUO APNrmD &N NY AND NN
Via raostail. (717) 23'-'321
Michael W. winfield, Esquire
David W. Francis, Esquire
.ow.ll, TraabtaaD, L09aD
eal:l:le , BO....D
14 N. Second street
Harrisburg, PA 17101
a.1 aee-ta Quay eOD.truatioD v. Ad... OOUDty A.phalt, .t al.
ec., cuaberlaDd COUDty, oivil ActioD, ea.e No. .5-42..
Dear Miohael , David:
After further reviewing this matter with my client and
preparing for the oral argument next week, we have determined that
it would be easier and more cost effective to amend our respon.es
to your request for produotion of documents. Acoordingly, the
following is our amended response to request for admission. numbers
4 and 6:
4. PaDOT's defaulting of ACA on this Project was through no
fault of Kee-ta Quay.
Response. Denied. While it has not been alleged that Ke8-ta
Quay's work on the project was defeotive, discovery in the
litigation concerning the default of ACA is ongoing. Moreover, one
of the reasons given for ACA'B default on the Project was its
untimely performance of work on the Projeot. In as much as Kpe-ta
Quay also did not perform its work on the projeot in a timely
fashion, it contributed to ACA's default. The facts and documents
which support this response are Kee-ta Quay'. own payment
Miahael w. winfield, Esquire
David W, Francis, Esquire
.0.811, ~raabtaaD, LoqaD
Clarr18 .. BovaaD
August 23, 1996
Page Two
applications and Robert Mumma's testimony, speaificallY, the
testimony and payment appliaations show that Kee-ta Quay was still
pourin9 conarete and performing other contract work in Oatober
1993, well after the contract oompletion date. Moreover, Kee-ta
Quay's work needed to be oompleted before other work on the Projeot
could be oompleted thus delaying completion on the Project.
6. All the work desaribed in the above request for
admissions was approved by PaDot.
Response I As a result of ACA's default on the Project and the
resulUn9 HU9ation, ACA is without sufficient knowlEidge or
information to know whether Kee-ta Quay's work on the Project
enumerated in Request No, 5, was approved by PaDot. Moreover,
seation 110.05 of the PaDot 408 specifications which were
inaorporated into the oontraat between ACA and PaDot provides that
partial progress payments to the contraator does not mean that
PaDot accepted or approved the material furnished or work
performed.
After you review the amended responses, kindly contact me. I
trust that these responses are now adequate, and you will dismiss
your Motion to compel. I look forward to hearing from you.
Ve~y truly yours,
( 1( I) A\J~(l[( LA__~ , /1'
i:r.aBB IILGARRIrr t:t/,J
RKI1I9k
cal Robert M, Mumma, II (vla raoslml1e (717) 257-5115)
,,""''-1.I17_WlolldUJ
.'
.
("PaDOT"), and engages in suboontract work for genera 1
contractors.
2. Defendant Adams County Asphalt Company ("ACA") is a
Pennsylvania corporation with a principal place of business
located at 614 North Front street, P.O. Box 1531, Harrisburg,
Pennsylvania 17l05.
3. Defendant Brady Contracting Co., Inc. ("Brady"), upon
information and belief, is a pennsylvania corporation with a
principal place of business located at 3605 Hartzdale Drive, Camp
Hill, Pennsylvania l70l1.
4. Defendant National Union Fire Insurance Company
("National"), upon information and belief, is a Pennsylvania
corporation licensed to do business in Pennsylvania, with a
principal place of businass located at 139 University Place,
pittsburgh, PA l52l3.
5. On or about March 12, 1992, ACA submitted a bid to PaDOT
for the rehabilitation and construction of certain improvements to
the rest stop area located on SR0081 (also known as Interstate 81)
in Cumberland county, Pennsylvania ("Project").
6. The scope of the Project work included the installation
and extension of the existing on and off ramps, the expansion of
2
.
J
existing parking facilities, drainages, improvements, and the
installation of guide rails and lighting.
7. On or about June 3, 1992, ACA was awarded the contract
for the Project by PaDOT. sometime thereafter, ACA and PaDOT
entered into a contract for the performance of the work on the
Project. upon information and belief, a true and correct copy of
said contract is in the possession of Defendant ACA.
8. Pursuant to the terms of its contract with PaDOT, and as
required by the public Works contractors' Bond Law of 1967, 8 P.S.
S19l et seq., ACA was obligated to furnish a payment bond for the
protection of claimants supplying labor and/or materials cn the
Project.
9. On or about June 12, 1992, Defendant ACA as principal,
and Defendant National as surety, in accordance with the
obligations set forth in paragraph 8 above, executed Payment Bond
No. 10-61-59 ("Bond"), a true and correct copy of which is
attached hereto as Exhibit "A".
10. In ~r about July 1992, Kee-ta Quay entered into a
subcontract with Defendant ACA to perform certain curb and
sidewalk work on the project ("ACA subcontract"). A true and
correct copy of said Subcontract (including Addendum) is attached
hereto as Exhibit "B", and incorporated herein by reference.
3
...
11. The ACA subcontract provides for the performance of
certain work and the furnishing of certain materials by Kee-ta
Quay, as therein stated, in return for payment in the amount of
$84,478.40.
12. sometime after June 1992, Defendant Brady entered into a
subcontract with Defendant ACA to perform, inter AliA, lighting
and signing work on the project. A true and correct copy of said
subcontract is not in the possession of plaintiff, but upon
information and belief, is in the possession of Defendants ACA and
Brady.
13. On May 24, 1993, Kee-ta Quay entered into a subcontract
with Brady to provide pole foundations for the lighting and
signing work on the project ("Brady subcontract"). A true and
correct copy of said subcontract is attached hereto as Exhibit "C"
and incorporated herein by reference.
14. on or about May 24, 1993, plaintiff Kee-ta Quay began
performing work and furnishing materials on the project in
accordance with the ACA subcontract.
15. Between May 24, 1993, and October 13, 1993, Kee-ta Quay
supplied labor and materials for the project in accordance with
the ACA subcontract and the Brady subcontract.
.
PAYMENT BOND
BOND NO,
10-61-59
KNOW ALL MEN BY THESE PRESENTS, Thet We,
Adams County Asphalt Co,
of __P.O. Box 1531_____
Harrisburg, Pennsylvenie 17101
AS PRINCIPAL. endNat10nal Union Fire Insurance Company of Pittsburgh, PA
70 Pine Stroet, New York, NY 10270
e corporetion, es SURETY. ere held end firmly bound unto the Co..on-
weelth of Pennsvlvenie in the full end just sum of __two million six
_hundred fortY.five thousend eight hundred ~inety end 63/100_ dollar;
"_2.645.190.63_), lawful money of the United States of America,
to be paid to the soid Commonwealth of Pennsylvania. or it Assigns,
to which payment well end truly to be made. we bind ourselves. our
heirs, executors, administrators, end successors, jointly and
severally, ~irmly by these presents.
See lad with our respectiva seals and dated this 12th day of
June
A,O, 19~,
WHEREAS, Tha abova bounden PRINCIPAL has undartaken to
contract w,i,th the said Commonweelth of Pennsylvania. by and
through tha Secretary of Transportation covering tha work
identified balow for approximately the sum of ___two million six
_hundred forty.five thousand eight hundred ninety and 63/100___dollars
($_2.645.190,63_) .
For tha improvemant of a certain Section of STATE HIGHWAY in CUMBERLAND COUNTY,
PENN TOWNSHIP, Commonwealth of Pennsylvanie. STATE ROUTE 0011 SECTION Rl2, This
project is located approximately 5 miles south of Carlisle on I-II from Stetion
441+70 (Segment 0370. Offset OilS) to Station 649+50 (Sagment 0374, Off.et '
2335) northbound. and Stetion 676+00,00 (Segment 0315. Offset 0025) to Station
726+00 (Segment 0391. Offset 2194) oouthbound. for e.panding parking facilitias
and langthaning ramps with reinforced cemant concrete pevement. 10" depth,
dreinage improvements. instelletion of guide rail, and installation of
lighting, ell within en overell projact length of 10.023,79 feet CI,I9 milea)
a. indicatad on the drawings approved December 17, 1990,
and
WHEREAS, it Was one of the conditions of the award of the
Sacratary of Transportation, acting for and on bahalf of tha Common-
wealth of Penn.ylvania. pursu.nt to which said contract was undartekan
by tha PRINCIPAL that the.e prasant. should by a.acuted, to bacoma
binding upon tha data .eid contract i. approvad for tha Offica of
tha Budgat, by the Comptrollar,
NOH, THEREFORE. Tha condition of this obligation i. .uch that if
tha abova boundan PRINCIPAL shall and will promptly or causa to ba
05/11"92
23
CMS,0920511,T225910,COS20711CONTRACT)
,.
"
,d 'n full .11 luma of mon.v which mav b. dut bv contr.ctor or
thlrwil" to tnv individual, firm. p.rtn.rlhlp, .aaoc'ation, or
.r,.rIUon, for all m.terhla furnillhed or Ilb.r luppH.d or
'.rf.rm.d in the proll.cution of tha work, wh.th.r or not the a.id .
, t.ri.l or l.bor .nt.r.d into .nd b.c.m. c.mpon.nt Plrta of th. work
~ ,.prov.m.nt cont.mpl.t.d, .nd for r.nt.1 .f th. .qulpm.nt ua.d .nd
'..rvic'lI r.nd.r.d bv public utilitl'lI in, or ln conn.ction with, th.
,rol.cution of auch work. th.n thlll oblig.ti.n to b. void, oth.rwla.
t. r.maln in full forc. .nd .ff.ct,
Th. PR1NC1PAl .nd SURETY h.r.bv. jointly and aav.rlllv, agr..
with th. oblig.. h.r.in th.t any individual, firm. partn.rllhip,
....chUon or c.rpor.ti.n. which h.1I POl'form.d l.bor or furniah.d
..t.ri.l in tho pros.cutl.n of the work .11 provid.d, .nd .nv public
utility which h.. r.nd.r.d s..vice. in. or in conn.cti.n with, the
prol.cution of such work. .nd which h'lI not b..n p.id in full th.r.-
for. m'v SUI in ,"umpslt on thill P.vment Bcnd in hh, th.ir, or itll
own n.m. ,nd m.y prosecute tho slme to fin.1 judg.m.nt for auch aum or
.um. I' m.y b. justly duo him, them, or it, .nd h.v. .~.cution th.r.-
on. Provided, how.v.r. th.t th. C.mmonwe.lth sh.ll n.t b. li.bl. for
tho p.yment of .ny cost. .r .~p.n5'S of .uch suit,
R.covlry by .ny individu,l, firm. p.rtn.rship, 'lI.oci.tion or
corpor.tion h.r.und.r sh.ll b. .ubj.ct to tho provi.ion. of the
"Public Work. C.ntrlct.r.' Bond l.w of 1967". Act No, 385, .pprov.d
D.cemblr 20. 1967. P,l, 869, which Act sh.ll be incorp.r.t.d h.r.in
.nd m,d. . p.rt herlof. IS fully .nd compl.tely .. th.ugh it. pro-
visions w.r. fully ,nd .t length her.in r.cited,
1t i. further provided th,t .ny .It.r,ti.ns which mey b. m.d. in
the t.rm. of the contrlct or in the work to be don. or mlteri.ls to b.
furnish.d or l.b.r to be .uppli.d or p.rformed und.r it or the giving
by the Commonwe.lth of .ny .xt.nsion of time for the performlnc. of
tho cont'r.ct or .nv oth.r forb'l"nc. on tho p.rt of .1th.r the
Commonw..lth or the PR1NC1PAl to the oth.r. .h.ll not in .ny w.v
r.l.... the PR1NC1PAl .nd the SURETY or SURET1ES or .ithar or any of
th.m. their h.ira. .x.cutor.. .dmini.tr.tor.. .ucc...or. or ...iGns
from th.ir li.bility h.r.und.r, notic. to tho SURETY .r SURET1ES of
.nv .uch .ltar.tion, .xten.ion. or forb..ranc. b.ing harabv w.iv.d,'
1N HlTNESS WHEREOF. th. .aid PR1,NC1PAl .nd SURETY h.v. duly
.x.cut.d thi. Bond und.r s..l th. d,y ,nd v..r fir.t .bov. writt.n,
05/11/92
24
CMS,D9205ll.T225910,coa2071CCONTRACT)
'~"""'"''.''.''_-lol.''''' .
(8) Schedule of the ....'ork
ITI!K-1 ~u8ntity peocdplli..!l Unit Price Amount
0630-001 3564 LP Plnin Cement Concrete Curb 13.10 46,688.40
0694-0010 40 SY Curb Cut Rompo, Type 1 Single 49.50 1,980.00
1001-0010 12 CY ClaRs A Cement Concrete 485.00 5,820.00
9676-0001 624 SY Reinforced Cement Concrete 30.00 18,120.00
Sidewalk, Special
9000-0000 .... 96 LP Screening Pence 45.00 4.320.00
0608-0001 LotS. Hobllhation 5,750.00 5,150.00
Totnl: ... $ 83,278.40
f\o ~JI E)..<.., GI\ ~d:~. II,
SZh.~..A.. Ol,'otl.,f;:l4..f:. () 0)")
no (\'\.PT. J no .Subb~.
2>J /I I ~.)... ~;
- 3 -
"
.'
(IJ) SI'l'dRl COlll11t 10110 to Schedule of Work
(1. r nOlle, 60 l1eOif,IlRte)
1. SUBCONTRAC'I'OR TU 1'lilll'OI\M WOIIK IN M:CUllIJAtH:li WITII 'l'llIi 1'llO,JP,C'I' HI'~:Cllo'lCATIONH ANIl I:UN'I'IlAC'I'
DIlAWINllS.
2. ALl. MATIIRIAl.S S\JI'l'l.lIi11 ANn/1I11 liSEn IIY 'l'l1Ii SlIlICONTI\ACTOll SIIAl.I. MliE'I' 1li':llll1IUiMIINTS ANn
SPIICIFlCA'I'IUNS FUll TillS PllO.JECT ANn ALl. HATElllAl. lillll'HENTS TO IIli ACCOMI'ANlliD BY CIiR'I'-
IFlCATlON.
3. SUBCON'I'RACTOR IS R~;SI'UNSIIII,li 1'l1ll AIJHINSTIIA'\'lVli I'I1OclmlJlUiS AND IllllllJ1l1IiM~:NTS ASHOCIA'1'1I1l
WlTll SUBCONTRAC'I'EU SCIlEUlJl.~: OF WORK.
4, SlJBCON'I'RACTOR Iii R~;IlUll11m TII FIIIlNI SII IIV JllIiNCI' 01" I NSlJllANCIi AS Rt;IIU llllW IIY HPIICU'ICA'flONS
ANIl/OR CON'l'RACTUR.
5. QUANTlTlliS UF WURK PlillFUllMW All Ii TO Ill'; VlilllHEIl lly Tllli CONTRM:TOR,
6. SUBCONTRACTOR IlOUNIJ TO l'IUiVMl.INI: WM:ri HCIII',nlJLli <ATTAClIl\IJ). Clilnn'Lt:1J l'AYllOl.LS HUST BII
SUBMl'f'l'lill TO CONTRACTUR IN A 'I'lHlil.Y HANNliR,
7. SUBCONTRACTOR SHAl.I. IHi IlllSPlINS I 111.1', I'UR ANY l'ENAI,'I'lI',S ASSliSSlill M:A1NST CUIl'l'llACTUR nUll TU
LACK OF PliRFORMANCE BY SUB CONTRACTOR.
8, SUBCONTRACTUR TO COHfIliNGE WIIRK WITIIIN ',0 1I0lJllS (Il.' NonCli FROM CUNTI\ACTUll ANIJ 1'llllCIIW
WITH ALL 1l1Ll<lliNCE.
9. CONTRACTOR RESERVES TilE II1(al'l' TU ISHIii': A .JUINT I'AY/lEUT CllliCK TU SUll-CUU'l'I\Al:,\'OR AND/Oll
MATERIAL SUPPLlliRS.
lO. SUB-CONTIlACTOR RlilllJ1RIiIl TO IIAVli 111IAI.I1'lIW A1H1 I'ENNIJUT Al'PllOVIiIl SIII'I\IlV 1 SUll UN I'RO,IV.C'I'
AT ALL TIMES.
II. SUB-CONTIlACTOR REQlJIREll 'I'll HAVE ALL M'I'l.ICAIILI'; SALES TAX INCLllIlIW I N PRICES,
3. The Suucuntractor, by l'xecuting thls SulJcuntract,
l'epresents and warrants to the Contrllctor that lt 11 IIUllliUt,I,
capaule, experienced and available to petroni the Schcdule of
the Work as set forth in paragraph 2 of thls Subcuntl'Rct under
the tenDS IInd conditions oC thc }'r1ndpRl Ccntrnllt nnd thi.
Subcontract, ln thc qUAntity nnd Cor the amount therein uot earth,
And within the time liS 111, t1ur illl'. the cxecution oC tho rr indpsl
Conlract, designAted. Tile Subcolltrllctor does further represent
to the Contractor thllt wllarc prc'I\JlIllfl.clltlon to pelfurm the work
in this contract is rC1luire<.l by the OWner and is (1 cundl.tion pre-
- 4 -
cedent to contracting or oubcontl'6cling to perCollD such work,
that the Subcontractor i8 duly so pl'(lq\lAl1C1ed and will remain
prequall.C1ed for ouch wOI.k for the dUl'ation of this Subcontract,
including any addition or extension thereof.
4. PROGRESS OF WORK - The Subcontractor will promptly
begin said work as 800n 88 he is notified by the Contractor and
wi 11 carry forward and complete 6IIid work 118 rapidly as the
progress of the work of the Contractor wl.11 permit. The Subcon-
tractor wl.1l funlish sllid materials, labor and equipment, prose-
cute said work with diligence, without delay, and will not in any
manner delay or otherwise interfere with the work of the Cor,tractor
or other Subcontractors. Should the said Contractor conclude that
a Subcontractor is unjustly and without valid reason delaying said
....orl<., or the Subcontractor has performed said work in a deficient
or improper manner, he shall so notify said Subcontractor by cert~.
fi ed or registered mail, or by telegl'iUll, setting forth the complaint
in detai 1, and the Subcont ractor wi 11 have two (2) days from the reo
ce i pt of said mailed complaint or telegr/llD to correct the CO::lplaint.
In the event Subcontractor fails to comply with said notice and to
correct the complaint, said Contractor shall have the legal right
to take possession of all equipment, machinery and supplies in and
upon the contract site, including, but not llmited to, construction
machinery, equipment and supplies of the Subcontractor and to use
the same to correct the complaint or to have the complaint corrected
by subletting this work to others, and said construction machinery
and equipment as needed to be used to correct 58id work defic1enciu
sha 11 be used by the Contractor or any subcontractor designated by
the Contractor to so use the same, The Contractor shall charge the
expense of the correcting work against said Subcontractor and de-
duct the same from the contract, and should the amount of payment I
due on said contract be insufficient, to collect the said deficiency
from the Subcontractor by legal process and/or surety company, or
its agents, by request or legal process. Upon correction of ,aid
work, or the deficiency, the machinery and equipment of the Subcon-
tractor shall be delivered to Subcontractor, upon n::>tice, at the con-
tract site. Subcontractor shall supply skilled and experienced
employees ready ami able to work in hannony with the Contractor and
wi th other prime contractors and subcontractors and/or their ~-
ployees, acceptable to the Contractor, the Owner and the Owner',
re presentatives.
In performing the foregoing work the Subcontractor
sha 11 furnish all labor, equipment, materials, supplies and every-
thing necessary or incidental thereto or in connection with the
perfonnance by it of its work 115 required IInd called for under the
provisions of the Principal Contract. It is understood and agreed
- 5 -
by the p6t'ties hereto that the qUllntity of ....ork as shoYn above
are approximate only and are subject to increase or decrease
and it is further underatood that 1111 qunntities of work ....hether
increased or decreased are to be performed at the unit price
above quoted and agreed upon and that the Subcontractor, in all
events, shall be entitled to be paid for that n~nber of unit.
finally determined upon by the Owner, if the Owner'. determina-
tion is not acceptable to the Subcontractor, the Contractor shall
appeal such detennination to the extent such 11 feuible and per-
missable at the Subcontractor's ....ritten request to do so and at
the Subcontractor'. cost and expense.
S. TIME ALLOWED FOR CONSTRUCTION OF PROJECT. It i.
expressly understood and agreed by and between the parties hereto
that time is and shall be considered the essence of the contract
on the pArt of said Subcontractor and should the said Subcontractor
fail to begin, continue and complete the work as herein provided
and should the Contractor suffer or permit said Subcontractor to
occupy more time than required under this agreement, in that event
the said Subcontractor hereby covenants and agrees to indemnlfy and
save harmless the said Contractor from any loss or damage which ms)'
be compelled to make good to the OWner, for or on account of delay
in the completion thereof, insofar as said delay was caused by the
said Subcontractor. If the Subcontractor claims he is delayed in
the prosecution of his work through no fault of his own and that
such delay is costly to him, he shall be entitled only to luch com-
pensation for such delay as is allowed and paid for luch by the
Qvner to the Contractor to the extent such is attributable to the
Subcontractor's work, Any such claim by the Subcontractor Ihall
be submitted to the Contractor in writing, containing all pertinent
details, by the Subcontractor within ten (10) days of the alle&ed
delay. failure of the Subcontractor to glve such written notice
within ten (10) days shall terminate any right of the Subcontractor
to make such claim to the Contractor or the Owner.
6. CONDEMNATION or WORK. The Subcontractor shall provide
sufficient, safe and proper facilities at all times for the inspec-
tion of the work by the Proj ect Engineer, Architect and the Conlractor
or their authorized representative, for the inspection of the Sub-
contractor's work and materials used or to be used. He shall, at
once, remove all materials, and take down and rebuild all portions of
the work condemned by the Project Engineer, the Architect and the
Contractor or their representative, upon receiving notice in writing
of such condemnation.
7. EXTRA WORK - All ext rR work to be p(>\,(oltnl'd by the
Subcontractor must be condensed to writing Rnd a rnte of pill' /lgreed
upon before such work is undertaken, Said extra work agreement.
must be signed by representativel of the Contractor and Subcontractor
and will be subject to the terms Rnd condition. of thll Subcontract
Asreement.
- 6 .
.'
8, lllF.MNl f1 CATlON OF COtffRACTOR-I'ATElITS AND PATENT
RlGHTS - The Subcontractor hereby covenants ond agree a to
indemnify ond Dave hal"mleos the Contractor hom allY and all
clAimo or ouits frOIQ infringements of patents or violation of
patent rights, including all costs and expenses to which the
Contractor may be put in defendin8 any action that IDAY arise through
the work of the Subcontractor,
9. IND~:HNIF1CATlON OF COH1'RACTOR AND OWNER FROH ALl,
LIABILITY - The Subcontractor shall have charge of the entire
work ulltil completion and acceptance, and shall alone be liable
for and shall pay all loss or damage caused by him or by his ser-
vants, agents or employees to property, buildings or adjacent work
and for any accident to persons that may occur during t~e per-
fOl-mance of the work covered by this Subcontract or at any time
thereafter <15 a consequence of the performance of said work. The
Subcontractor shall observe all state and municipality laws, ordi-
nances ond reeulotions and shAll defend and save hArmless the Con-
tractor and the Owner frolD all suits and claims whatsoever for 105s
of life or injury occurring to e~ployees of the Subcontractor who
pc r form such loIork. The Subcontractor agrees to fully idellDllfy,
protect and save hannless the Contractor and the Owner from all li-
ability froiD all claims, loss, damage, suits and actions of every
kind and from all costs and expenses in connection with such claUns,
suits and actions due to injuries to persons or damage to property
whether resulting from accident, negligence or any other cause what-
soever occuring during the performance of the work covered by thl.
Subcontract or at any time thereafter as a consequence of the per-
formance of the same or which may at any time occur or result fr~
or be caused by such work and if there are any auch claims unsettled
when the work herein provided for is completed, final settlement by
the Contractor and Subcontractor shall be deferred until such cla~
are adjusted or suitable special indemnity acceptable to the Con-
tractor is provided by the Subcontractor.
10. INSURANCE REQUlREMElITS - The Subcontractor shall take
ou t and pay for I
(a) Workmen's Compensation and Employer's Liability In-
surance in accordance with the laws of the State of Pennsylvania
and the Federal Statutes.
(b) Contractor's Public Liability and Property Damage In-
surance. Said policy of insurance will be written to provide for
the following limits $1,000,000.00 dollars for all
dCL~a&es arising out of bodily injuries to or death of one person,
and subject to that limit for each person, 8 total of $1,000,000.00
dollars for all damages arising out of bodily injuries to or death
. 7 -
of two or more peroons in any onu occident, and regular con-
tractors property damnge liability insurance providing for a
limit of !lot leos than $1,000,000.00 dollars for all
damages arising out of injury to or deotruction of property in
anyone accident and subject to that limit per accident, a total
(or aggregate) limit of $1,000,000.00 dollara
for all damages arising out of injury to or destruction of
property during the policy period. This policy of insurance shall
be endorsed as follows I to cover the explosives and collapse
hazards and injury to or destruction of wires, conduits, pipes,
mains, sewers, or other similar property, or any apparatuses in
connection therewith, below the surface of the ground, as such
injury or destruction is caused by and occurs during the use of
mechanical equipment for the purpose of excavating or drilling or
injury to or deotruction of property at any time resulting there-
from.
(c) Public Liability and Property Damage Insurance
covering the operation of any motor vehicle used by or for the
account of the Subcontractor in connection with the work to be
performed under this Subcontract. Said policy of insurance will
be written to provide for the following minimum limitsl Bodily
Injury Liability $1,000,000.00 dollars each person
and $1,000,000.00 dollars each accident, Property
Damage Liabi 11 ty $1.000,000.00 dollars each accident.
The Subcontractor shall furnish to the Contractor three
(3) copies of the policy and three (3) certificates of insurance
for the following of the above mentioned policies.
(a) Workmen's Compensation.
(b) Contractors Public Liability and Property Damage
Liability Insurance.
(c) Public Liability and Property Damage Insurance
covering the operation of motor vehicles.
All of the above mentioned policies of insura~ce shall
said policies shall not be changed or cancelled until
written notice has been given to the Contractor.
11. TAXES - The Subcontractor shall pay all the Pennsyl-
vania Sales and Use Taxes on all taxable items, and all Federal
Old Age Benefit Taxes, Federal Unemployment Compensation Insurance
on all labor furnished under this contract, as required by the
COlIDDonwealth of Pennsylvania and the United States Government, as
well as any other taxes, Federal, State or Local, applicable to or
occasioned by the Subcontractor's parfonnance of this contract or
employment of persons hereunder.
provide that
15 day.
- 8 -
.'
12. calUMCT COHI'I,IAtlCF. - 'l'ho Subcontrsctor shall
~bide by all referenced or identified primo contract provision.
for federal ail! projects, ststutes, rules, regulations or pro-
cedures applicable thereto liS ....ell AS by all such prime contract
provioions calling for observonce of certain Pennsylvania or
local ststutes, rules, regulAtions or procedures ....hether or not
specifically referred to in this subcontract and ....hether or not
fonn8 or certificates are suppUed to the Subcontractor to achieve
Bueh compliancel without lilOitstlon ouch lDottera include Federal
and/or State non-discrimination provision., re-negotistion pro-
vision8, IDinimUIII ....sge provision., anti kick-bsck provhlon'i psy
day provislons dAily and weekly overtime provhions, payro 1 de-
duction provls[uns, payroll clnsslClcntlon and apprentlce provi.ionl.
Payments undel. this subcontl'act Ulily bo withheld at any time to the
extent necessary to affect compllnnce with th1e \lr any other article
of this subcontrnct. Moreover, the Subcontractors shall ~aintain
a record of the total cost of all mnterillle and supplies purchased
C01" .1nd incorporated in the work and Also the qUAntities of those
6?ecific matedals and supplies and in the units shown. Upon COil!-
pletion oC the subcontract, this record, together with the rinal
labor S\IIlonal"Y ohall be aubmitted to the State District Engineer, (or
all State and federally assisted projects, for the project on the
St a te I s appropriate form for such or on a fonn supplied by the prime
contractor in accordance with instructions thereon. The quantities
for the listed items shall be reported separately for roadway and
for structures over ~enty feet long as measured along the entire
center line of the roadway.
13. ASSIGNMENT or SUBCONTRACT - None of the rights under
this Subcontract, including assignment of funds, shall be s66igned
by the Subcontractor without prior written consent from the Con-
tractor. Any attempt to assign the Subcontract will operate 8S an
instant forfeiture and repudiation thereoC by the Subcontractor
and the rights of the parties shall be deternined in the lame manner
as though the Subcontractor had at the time of 8uch attempted usign-
ment failed and refused to continue to perfonn the contract.
14. EXTENSION or TIME - No allowance of time wi 11 be made
the Subcontractor for delay in preparing his drawings or, in seeur-
i ng approva I of the Owner and the Cont ractor' s engineer s Wrlen such
drawings are not properly prepared f.or approval of the ().,mer and the
Contractor's engineers.
Extension of time to be granted to the Subcontractor
loIi 11 be the same only 8S is granted to the Contrnctor by the Owner,
aDd ....ill be in accordance with the Specifications in the Principal
Contract.
- 9 -
15. CONTRAC,'f AND I.ABOR AND MATERIAL BONDS ~ The
Subcontractor further agrees that he will simultaneously, with
the execution of this agreement, provide the Contractor, if
requested, with a Contract Bond, covering satisfactory'performance
of the work contracted, the pensl sum of 10D% of the amount of
the Contract, and an "Additional Bond for Labor and Matedale,"
covering the prompt payment in full for utility services rendered
to sub-Subcontractors and for all materials furnished, rental
for equipment used, and/or labor supplied or performed, in the
prosecution of the work, and also in the penal sum of 100% of the
amount of the contract. Both bonds must also be executed by a
Corporate Surety satisfactory to the Contractor.
Payments under this subcontract may be withheld at any time
during the life of same for non-compliance with the above bonding
requirements.
16. TERMS OF PAYM};NT - The Contractor agrees to pay the
Subcontructor his portion of all payments received by the Contractor
from the Owner within ~eveJl (7) days after receipt thereof. It is
also understood and agreed that all estimates shall include the
materials on the site if so permitted by the Owner as a parc of the
current estimates,
It is further understood and agreed that no payment on
account shall operate as an approval of said work or materials, or
any part thereof.
17.
by the parties
proval of same
APPROVAL OF SUBCONTRACT - It is understood and ageed
hereto that this agreement is subject to the ap-
by t he Owner,
It is also understood and agreed that this agreement is
subject to the principal Contract in its entirety, entered into
by the Contractor and the Owner, relating to thia particular pro-
ject.
18. CONTRACTOR 'S RIGlffS TO WITHHOLD PAYMENTS-
IT IS UNDERSTOOD AND AGREED THAT THE SUBCONTRAC'COR
SHALL PAY -
(a) All employees unconditionally and not less
often than once a week,
(b) For all transportlltion and utility services
not later than the 10th day of the calendar month following that
in which said services are rendered,
- 10 -
.'
(c) for all materials, toola, rentals, and
ot h~r expendable equipL1ent not later than the 10th day
of the cul(lndal" month following that in which &aid materiah,
tooll, rentals and equipment are delivered at the aite of
the project.
A Contractor shall have the right to withhold payment.
from the Subcontractor, in addition to retain percentagea II
IDay be provided in the Principlll Contract, of .uch a::lount. II
IDay be necessary both to inJure compliance with all of the terms
oC this Cont ract by Subcontractor, for work performed by the
Contractor or other subcontractors in accordance With paragraph
4 of this Contract, and as necess,uy to pay all just claims for
1 abor and services, rental and materials furnished in and about
said work, which is the obligation of the Subcontractor to PIlY.
. The Contractor shall have the right, acting 85 agent of the Sub-
cont ractor, to apply such retained lUllount to the paycents of such
just claims and for work required to be perCol"Cled.
19. SUBCONTRACTOR'S RELEASE TO CONTRACTOR - Upon receipt
of final payment I the Subcontractor does hereby agree to give the
Contractor a duly signed release relieving the Contractor from
any liability in regard to monies due under this Subcontract, and
the Subcontractor will certify that all of hil obligations for
iierviees, materials, equipment rental, tools, etc., incurred on
this Subcontract have been paid and that if an{ liability .hould
occur on his behalf, then the Subcontractor wi 1 indemnify the
Contractor.
20. APPROVAL OF QUANl'lTlES - Prior to the acceptance of
final quantities, the Contractor shall give five (5) days notice
oC such quantities fo the Subcontractor for his approval.
21. PRIOR NEGOTIATIONS AND AGREEMENTS - All negot iat ionl
and agreements prior to the date of this agree::Jent are merged herein,
This Subcontract has been resd and is fully understood by the Sub-
contractor.
The Cont ractor and the Subcontractor (or the::Jselves, their
successors, executors, a(~inistr8tors and assigns, hereby agree
to the Cull performance of the covenants oC this agreement.
22. TERMINATION - If prine contractor's work is termina-
ted or abandoned, if Subcontractor cannot work in hAllIlony witb
other Contractors, SlIbcontractors or their employees, is in breach
- 11 -
iJr.t, '" '93 l2135
~ l~IBiJB I~I(,
TEL 717-558-2l13
p, ;2
Addendum to Subcontract Agreeme t datod July 199~, between Adami
County AIP~lt company and Kee - Ta Quay Construction tor Curb
and ildewalk'work on Project SR 081-R1~ Cumberland County (1-91
Reat Area Job . 526).
The below lilted Changes are mad to the Contract:
ADD:
Item . S2.ll Ducrtp ton !:lnit Price amh
060S-::l060 1 Type M nlet 1200.00 $ 1,200.00
Orlgtnal contract Amount: $83,278.40 \
.1
New Contract Total I $84,470.40 (
All other terms and condittons r main the same.
Adame County Alphalt Co.
------------------------
Titlel ---.--------------
Datel ------------------
~
"
'II'
I,
:i
I,
,I
I
I(ee - Ta Quay
d~_J;)fLUt_:i::l~
Titlel --~~--
Datel _~!iL~.J.?A__-
CCoqt'A ,t,"1
COMMONWEALTH NONDISCRIMINATION CLAUSE
(All Contracts)
~. "';::0.':.\
(!)
Om fOg ,,,, I.,m 01 "". 'Ontl'':', Contl.Jclor iJl1rvlfs /1$ 'ollow$
\ I~ ,'t'Coclor shall not discriminate against any
emplnye :.,'(>1, 'anI lor p.mployment, Indllp~ndent con,
tractOl." ,"" ''',"" person because 01 race, color,
r~li\:lous r.'~~1, ~"r'.,;try, national origin. age, " sex
::.:mtr.' Il" s'lll la',~ al'irmatlv~ aCIIf)n 10 In:i'Jre that
ijppIIC,'''', (tr', ;f1Iployed, and thai employo~ or agents
are tr.:','!,)d during employment, without ,ega,d to Iheir
race color religiOUS c,eerJ, ancest'y, nallonal f)"gln,
Coge. or ~c', Such alllrm~llve action shalllncl'Jd€:, bllt
is nOllirn'ted to: emplni ment. upgrading, demotion or
tranoler, r~crOJltmcnt or re~rultmenl nrJvcrtl~lng; layort
or termination; rates 01 payor other forms of compen'
sail on; and selection lor training, Contractor ~hall post
In cllnspicuovs places, a'ldllable to employes, agents,
applicants lor ~mployment. and I)ther persons. a notice
to be prOVldp.d tl'y the conlracllng ~gency selling forth
the provlsiof" 01 this nondiscrimination clause,
2, CCll',actor shall, In advertisement:; or requests for
employment placed by It ur on Its beh2lf, state thnt all
quallliea appll.;Jnts will receive consl<1e'at1on 1('
emplc'tmenl IVlltlOUt regard Ie racp., color, rellgiou<
creed, anceSlry, national oflgln, age or sex,
3, Contraclor shall send cach Inbo' union or
workers' representative wllh which I~ has a collectlv~
barllsin'ng agreement or other r.ontract 0' unde'stan,
ding, a nollce advising said labor union or workers'
represenlatlve 01 Its commitment to Ihls nondlscrlmlna,
tlon claur,~ Similar notice s'lJII be sent to every olh~r
oo~rt;p' 0' 'f:,'rt~ltment re':;u!arly utilized by Contractor
4, It shall be no del',,1se to a finding 01 non
corn~llan~"! with t~ljs "o",j:,icrimlnatton clc.1'Jse t"a~ C:,)r'.
~r3r.tor han delegatee som~ 01 Its employment rrrtct:ci.'S
to any union, tr21ning program, or other source 0' recruit,
ment which prevents It from meeting lis obligations,
However, if Ihe evidence Indicates that Ihe Contractor
was not on notice of lhe Ihlrd,party discrimination 0'
made a good lalth eltorllo correcl II. ~uch 'actor shall
te conSlde'ed In mlllgatlon in determllllng approrriatli
sanctions,
5, Where thn practices of a union 01 "ny training pro,
EXHIBIT
':'.-'
'".:"
gram or othllr source 01 recruitment will resullln tho ex,
cluslon 01 mlnorlly group persons, 50 that Contractor
will be unable to meel Its obligations under this non,
discriminatiOn clause, Conlraclor shall then employ and
1111 vacancle~ through olher nond'scrlminatory employ'
ment procedures,
6, Contractor shall comply wllh all 51ate and fede~al
laws prohlblllng rJlscrirnlnation In hiring or employment
opportunities, In the event of Contractor's non.
compliance with the nondl~r.'1rrlinatlol' r.lause 01 Ihls
contrect or wllh any such laws, thiS contraCt may be ler'
mlnated or suspended, in whole or In pari, and Contrac,
tor may be declared temporarily Ineligible lor further
Commonwealth contracts, end other sanctl~lns may be
Imposed and remedies Invoked,
7, Contractor sholl furnish all necessary employ'
ment documents and reCOrds to, and parrnlt access to
Its books, records, and Accounts by, the contracting
agency and the Oltlce of Administration, Bureau 01 Af.
flrmallve Action, for purposes 01 Investigation to ascer,
taln compllanr.e with the provisions of this clause, It
Contractor does not possoss documents or records
reflecting the necessary Information requested, It shall
lurnlsh such Information on reporllng forms supplied by
the contracting agency or the Bureau o! Altlrmative
Action,
8, Contractor shall actlvel't recruit minority subcon,
tractors (jr subcontractors with substantial minority
representation among their employes,
9, Contractor Shill, Include the provisions or thiS
nondiscrimination clause In eVArY ~\Ihcon!racl. so thilt
such provision' will be bll'd'~g upon each
Subcontractor,
10, Contraclor obligations under Ihls clause are
limited to the Contractor's facilities within Pennsylvania
or, where the contract Is lor purchase of goods manufac'
tured outside 01 Pennsylvania, the lacllltles at which
suCh goods are aCIoJslly ploduced
A
CC,42870 (1'82) , . 0
COMMONWEALTH CONTRACTOR INTEGRITY PROVISIONS '.
" Dallnlllona,
a, Conlldanllll Inlo,mlllon moons Inlo,matlon Ihalls nol public knowlodoo, or IVlllabl. 10 Iho public
on roquosl, dlsclosu,o 01 which would Olvo on unlalr, unolhlcol, 0' 1110001 odvonlaoo 10 Inolhor doslrlno 10
conl,acl wllh Iho Commonwoollh,
b, Con..n' moans w,llIon pormlulon slgnod by 0 duly aulhorlzod o"icor or omployo 01 Iho Commonwaa~h,
provldad Ihal whoro Iho malorlal lacls havo boon disclosed, In writing, by proquallllclillon, bid, proposal, or
conl,acluall.,ms, Iho Commonwoallh sholl bo doemod 10 hava consonl.d by vlrtuo 01 o..cutlon ollhls ag,oomont.
C, Conl'lclo, moans Iho Individual or onlily Ihol has onlorod Inlo Ihls agroomonl wllh Iho Commonwoo~h,
Including dl,oclolS, olllcor, partnors, manaoors, koy omployos, and owno,s 01 moro Ihan a 5'!. Inlorul.
d, Flnlnclallnla,..' moans:
(1) ownorshlp 01 moro Ihan a 5% Inlorosl In any buslnoss; or
(2) holding a pesltlon as an olllcor, dlroclor, Irusloo, partner, omployo, 01 Iho IIko, or holding any
position 01 monogamonl.
a, a'llultV moons any paymonl 01 moro than nominal monola,y valuo In Iho lo,m 0' cash, Iravol,
.nto,lalnmonl, giltS; moals, lodging, loans, subscriptions, advancos, doposllS of monoy, servlcos, omploymonl,
0' conl,acls 01 any kind.
2, Tho conlraclO' shall malnlaln Iho hlghosl slandards 01 Inlog,lIy In Iho porlo,manco 0' Ihls ag,oomonl
and shall lako no action In violation 01 slalo 0' 'odo,al lows, ,ogulallons, 0' olhor loqulromonls Ihal govarn
cont,actlng wllh Iha Commonwoallh,
3, Tho conl,aclor shall not disclose 10 othors any conlldontlal Inlormallon galnod by vlrtuo 0' this ag,oomonl.
4, Tho conl,aclo, shall nOl, In connection with Ihls or eny olhor ag,oemonl wllh Iho Commonwoallh,
dll.ctly 0' Indl,octly, offar, conlor, or ag,ee 10 conler any pocunlary bonolll on anyono IS consldo,allon lor Iha
doclslon, opinion, rocommandatlon, volo, otho, a..rclsa 01 discretion, 0' violation 01 a known logal duly by any
o"lco, or omploye 01 Iho Commonwoollh,
5, Tho contraclor shall nOl, In connection wllh this or any olhor agroement wllh Iho Commonwoallh,
dlroclly or Indirectly, offor, glvo, or agrea or promise 10 give to anyono any gralulty lor Iho bonolit of or allha
dlroctlon 0' raquast 0' any office, 0' employe ollhe Commonweallh,
IS, excopl wllh Iho consonl 01 Iho Commonwoallh, nellher Iho conlraclo, no, anyono In privily wllh him
.h.II aceapl or agreo 10 accopt Irom, or givo or agreo 10 give 10, any person, any gralully I,om any person In
connoctlon wllh Ihe porlo,manco 01 work undor Ihls egreomenl except as provided Iher.ln,
7. excopt wllh Iho consanl 01 Iha Commonwaallh, Iho <onlraclor shall nol hava allnanclal inlarast in any
olhar conl,actor, subconlraclor, 0, suppliar providing sarVlcas, labor, or material on Ihls projacl.
8, Tha conlraclor, upon being Inlormod Ihal any violation 01 Ihose provisions has occurred or may occur,
shall Immadlallly notlly the Commonweallh in wrillng,
8, Tha conlractor, by axacullon 01 Ihls agroemonl and by Iho submission 01 any bills or Invoioos lor
paymant pUlluanllharalo, carllllos and raprasonls Ihal ho has nol vlolalad any 01 thou provisions,
10, Tho conlraclor, upon Iho Inquiry 0' roquasl ollho Inspoclor Geno,al 01 Ihe Commonwaallh or allY 0'
thai olllclal's agenls or rop,asenlatlvas, shall provida, or it approprlata, maka plomplly avallabla for Inspoctlon
0' copying, any Inlo,mallon 01 any Iype or lo,m dumod lelevant by Ihe Inspaclo, Gon.rallo Iha conlraclor's
Inlogrlly or "sponsiblllly, as Ihoso larms aro dalinod by Iho Commonwaallh's ..alulos, regulations, or managomonl
dlracllvas, Such Inlormallon may Include, bul shall not bo Iimllod 10, tho conlloclor's buslnus 0' linancial
"co,ds, documonts 0' 1II0s 01 any Iypo or lorm which relor 10 or concarn Ihls agrunlonl. Such In'ormalion shall
b. ,atalnad by Iho conlraclor 'or a poriod ollhroe yurs boyond th. larmlnallon ollho conlra,,' unloss olho/wiso
provld.d by law,
11. For violation 0' any 01 Iha abovo provisions, Iho Commonwoalth may lerminala Ihl, and any olha,
.g,aam.nl wllh Iho conlraclor, claim IIquldalod damages in an amount oqual to tho valu. of anything ,ocolvod
In bleach 01 Ih..a p,ovl.lons. claim damagos for all oxponses Incurrod In oblainlng another conI roc to' to
completa parlormane. haraunder, and deba, and suspand tho conl,acto, hom doing busln." w~h Iha Commonw.a~h,
Tha.. ,Ighl' .nd "m.dl.. .,. cumulatlv., and Ih. us. 0' nonuse of any ona shall not Pfoclud. th. u.. 01 .11 0,
, _ Iny otha" Tha.. ,ight. Ind ,amodla. I.. In Idditlon 10 tho.. th. Commonwaalth m.y hlv, undar law, .Ialula,
.' ~ogul.llon, 0, olhaMI.., EXHIBIT B
,.~t'1;"1
EXECUTIVE ORDER 11246
NOTICE or RF.QUlREHENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY
1. The Offaror's or Bidder'y sttention is called to tho "Equal Opportunity
Clause" and the "Standard hdeul Equal Employment Opportunity COllstruction Contract
Specificstions" set forth herein,
2. Tha sosls and timetsb1en for minority and foma1e participation, expressed
in percentage terms for the Contractor's aggresate workforce in each trade on all
construction work in the covered nren, are as fol10wol
Timetables
*Coala for minority
participation in
each tude
*Coals for female
participation in
each trade
SEE ATTACHED
APPENDIX 8, C OR D
SEE ATTACHED
APPENDIX A
* The houra of minority and female employment is to be reported monthly, by the
contractor, on Standard Form 257 (to be supplied by the Pennsylvania Department
of Transportation) and expresned in percentage tenDS of the Contractor's aggre-
sate workhours for each trade (croft).
These goals are applicable to all the Contrnctor's construction work (whether
or not it is Federal or federally assisted) perfonDed in the covered area, If the
contractor per fOnDS construction work in a geographical area located outside of the
covered area, it shall apply the soals eatablished for such geographical area Whare
the work is actually performed, With regard to this second area, the contractor
also is subjec' to the soals for both ita federally involved and non-federally in-
volved construction.
The Contractor's compliance with the Executive Order and the regulations in
41 CFR Part 60-4 shall be based on its implementation ~f the Equal Opportunity
Clause, specific affirmative action obligations req\lired by the apecifications set
forth in 4l CrR 60-4.3(a), and its efforts to meet the goals, The hours of minority
and female employment and training must be subotantially uniform throushout the
langth of the contract, and in each trade, and the contrnctor shall make a good faith
effort to employ minorities and women evenly on each of its projects. The transfer
of minority or female employes or trainees from Contract~r to Contractor or from
project to project for the sole purpose of meeting the Contractor's goals shnll be
a violetion of the contract, the Executive Order snd the regulations in 4l CFR
Part 60-4. Compliance with the goals will be measured against the total work houra
performed,
3. The Contractor sholl provide written notification to the Pennsylvania
Department of Transportation within lO working days of award of any construction
aubcontract in excess of $10,000 at any tier for construction work under the contract
reaultinQ from this solicitation, The notification sholl list the name, address and
telephone number of the aubcontractor; employer identification number of the subcon-
tractor; eatimated dollar amount of the subcontract; eatimated atarting and completion
datea of the aubcontrect; and the geogrRphical area in which the subcontract is to be
perfor_d.
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4. AI ulod in this Notice, snd in the contract resulting from thie solicita-
lon, the "covered area" 18 indicsted in the specIal prov18ion entitled "E.f..a.
lvered Area". G0019 for femnles are listed In AppendIx A, and for minoritiell
~ludes the areas listed in Appendix B, C or D.
tANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION CONTRACT SPECIFICATIONS
IUCUTIVE ORDER l1246)
1. As used in these specifications:
a. "Covered area" means the geographical area described In the 80licitation
from which this contract resu1tedl
b. "Dirlctor" l1Ieans Director, Office of Federal Contract Compliance Progralllll,
United States Department of Labor, or any person to whom the Director
delegates authority,
c. "Employer ident if icat ion number" means the Federal Social Security
number used on the Employer's Quarterly Federal Tax Return, U.S, Trea-
sury Department Form 941, and
d, "Minority" in:ludes:
(l) Black (all persons having ~rigins in any of the Black African
racial groups not of Ills panic origin),
(2) lIispanic (all persons of Mexican, Puerto Rican, Cuban, Central or
South American or other Spanish Culture or origin, regardless of
race),
(3) Asian and Pacific Islander (all persons having origins in any of
the original peoples of the Far East, Southeast Asia, the Indian
Subcontinent, or the Pacific Islands); and
(4) American Indian or Alaskan Native (all persons haVing origins in
any of the original peoples of North America and maintaining
identifiable tribal affiliations through membership and partici-
pation or community identification),
2. Whanever the contractor, or any subcontractor at any tier, subcontracts a
rtion of the work involving any construction trade, it shall phYSically include in
~h .ubcontract in excess of $10,000 th~ provisions of these specificalions and the
tice Which contains the applicable goals for minority and female participation and
lch ia set forth in the solicitation frol1l which this contract resulted.
), If the contractor is participating (pursuant to 41 CFR 60-4.5) in a Hometown
In approved by the U.S. Department of Labor in the covered area either indiVidually
through en asaociation, its affirmative action obligations on all work in the Plan
la (including goals and til1letables) shall be in accordance with that Plan for those
Id.. which have unions participating in the Plan. Contractora must be able to dem-
Itr.te their participntion in and compliance with the provisions of any auch Home-
m Plan. Each Contractor or Subcontrsctor participating in an approved Plan is
Ilvldually raquired to comply with its obligations under the EEO clause, and to
,e . lood faith effort to achievI each goal under the Plan in each trade in which
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it ha. employes. The overllll good faith performance by other Contrnctors or Sub-
contractor. towllrd Il gon1 in nn Ilpproved Pllln does not excuse OilY covered Controctor'o
or Subcontuctor's fB1Lure to tllke good fulth eHorto to Ilchieve the P1011 goals and
timatables.
4, The contracto~ shalL lmplcment the speclfic affirmative nctlon stnndards
provl<Jud in plll'llgraphs 70 through P of thene spedflcntlonll, The gonln set forth in
thu sllLicitotion from which this contract rellulted nrc expreslled as percentagell of
the total. hours of emp10ymllnt alld trainlnll of mlnorlt', nml female utilizntion the
Contract ,r should rensonllbly be able to achieve In each construct lon tflule in whlch
it has empl,yss in the covered arell. Covered construction Contrnctoro performJnll
construction work in geographical nreos where they do not hnve n Federal or Federally
Ilsslsted construction contract shull apply the millorlty and femnle golllo est.,bllshed
for the geogrsphicaL area where the work is being performed, Gonls nre published
periodically in the FederllL Register in notice form, Ilnd such notices may be obtained
from any Office of Federal Contract Compllunce Programs office or from FedernL procure-
ment contrllcting officers, The Contrnctor io expected to mnke substnntinlly uniform
progreso toward ita gouls in each craft during the period specified,
5. Neither the provisions of any collective bargaining ngreement, nor the fail-
ures by Il union with whom the Contractor hilS a collective bllrgllining agreement, to
refer either minorities or women shall excuse the Constructor's obliglltions under
these specifications, Executive Order 1l246, or the regulntions promulgated pursuant
there to,
6, In order for the nonworking trnining hours of apprentices Ilnd trllinees to be
counted in meeting the goalS, such apprentices and trainees munt be employed by the
Contractor during the training period, and the Contrnctor must have made n commitmcnt
to employ the apprentices and trainees nt the compLetion of their trnining, subject
to the Ilvllllabil1ty of employmel\t opportunities, Trainees must be trnined pursuant
to training programs approved by the U.S, Department of Labor.
7. The Contrllctor shall take specific affirmlltive actions to ensure equal
employment opportunity, The evaluation of the Contractor's compliance with these
specifications shall be based upon ita efforts to achieve maximum results from its
actions. The Contractor shall document thene efforts fulLy. and shaLl implement
affirmative action steps at least as extensive as the following:
a. Ensure Ilnd mllintllin Il working environment free of hnrassment, intimidation,
snd coercion of all sites, and in all facilities at which the Contractor's employes
are assigned to work. The Contrnctor, where possible, will Ilssign two or more
women to each construction project. The Contractor shall specif1clllly ensure that
alL foremen, superintendents, and other on-site supervisory personnel are aware of
and carry out the Contractor's obligation to maintain such n working environment.
with specific attention to minority or female individuals working nt such sites or
in such facilities.
b, Establish and maintain a current list of minority and female recruitment
sources. p~ovide written notificlltion to minority and female recruitment sources and
to community organizations when the Contractor or its unions have employment oppor-
tunities available and maintain a record of the organizntiolls' responses,
c, Maintain a current file of the namen, addresses. and telephone numbers of
each minority and female off-the-street applicant and minority or femnle referral
from a union, a recruitment Bource or community organization and of what action wa.
,
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taken with respect to each such lndivldun1, If such Individual was sent to the
union hiring hall for referral nnd wno not referred back to the Contrnctor by the
union or, if referred, not employed by the Contractor, this shall be documented in
th. file with the reason therefor, n10ng wlth whatever additional actions the
Coutractor may hnve taken,
d. Provide immediate written notificntlon to the Pennsylvania Department of
Transportation when the union or uniono with which the Contractor hss a collective
bargaining agreement has not reforred to the Contrnctor a minority person or woman
aent by the Contractor, or when the Contrnctor hao other information that the union
referral process has impeded the Contractor's efforts to meet Its obligations,
e. Develop on-the-job trainillg opportunitios and/or participate in trsining
progrsms for the area which expressly include minorities and women, including up-
grading programs and apprenticeship and trninee programs relevant to the Contractor'a
employment needs, eapecially those programs funded or approved by the Deportment of
Labor. The Contractor shall provide notice of these programs to the sources compiled
under 7b above.
f. Disseminate the ContractQr'o EEO policy by providing notice of the policy to
unions and training programs and requesting their cooperation in assisting the Con-
tractor in meeting its EEO obligations; by including it in any policy manual and
collective bargaining agreement; by publicizing it in the company newspaper, annual
report, etc; by specific review of the policy with all management personnel and with
all minority and female employes at least once a year; and by posting the company
EEO policy on bulletin bonrds accessible to all employes at each location where
construction work is performed.
g. Review, st least annually, the company's EEO policy and affirmntive action
obligations under these specifications with all employes having bny responsibility
for hiring, assignment, layoff, termination or other employment decislolls including
Ipecific review of these items with on-site supervisory persorlroel such as Superin-
dentents, General Foreman, etc., prior to the initiation of construction work at any
job site. A written record shall be wade and maintalllLd identifying the time and
place of these meetings, persons attending, subject matter discussed, and dispos1tion
of the subject matter.
h. Disseminate the Contractor's EEO policy externally by including it in any
advertising in the news media. specifically including minority and female news media,
and providing written notification to nnd discussing the Contractor's EEO policy with
other Contractors and Subcontractors with whom the Contrnctor does or anticipates
doing business.
i. Direct its recruitment efforts, both oral and written, to minority, female
and community organizations. to schools with minority and female students and to
minority and female recruitment and training organizations serving the Contractor's
recruitment area and employment needs, Not later than one month prior to the date
for the acceptance of applications for apprenticeship or other training by sny
recruitment source, the Contractor shall send written notification to organizations
lush as the above, describing the openingo, screening procedures, and tests to be
uled in the selection process.
j. Encourege present minority and female employes to recruit other minority
parlons and women and, where reaoonable, provide after school, summer and vacation
employment to minority and female youth both on the site and in other areas of a
CoDeractor'a workforca.
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k. Validate all teats and other selection requirements where there io nn
oblisation to do so under 41 CFR Pnrt ~O-),
l. Conduct, st least annually, an inventory and evaluation st least of all
mlnority and female personnel for promotional opportunities and encouraso these
employes to seek or to prepare for, through appropriate training, etc; such
opportunities.
m. Ensure that seniority practices, job clnssifications, work assignmellts and
other personnel practices, do not have a discriminatory effect by continu~lly moni-
toring all personnel nnd employment related activitios to ensure that the EEO policy
and the Contrsctor's obligatlons undor these specifications nre being carr led out,
n. Ensure thst all facilities and company activities are nonsegregated oxcept
that separate or single-user toilet and necessary changing facilities shall be
provided to assure privacy between the sexes.
o. Document and Dl4intain n record of all solicitations of offers for subcon-
tracts from minority nnd female construction contractors nnd suppliers, including
circulation of solicitations to minority and femnle contractor associations and
other business associations,
p. Conduct a review, at least annually of all supervisors' adherence to and
performance under the Contrnctor'o EEO policies and affirmative action obligations,
8. Contractors are encouraged to participate in voluntary associations which
assist in fulfilling one or more of their affirmative action obligotions (70 through
pl. The efforts of a contractor asoociation, joint contractor-union, contractor-
community, or other similiar group of which the contractor is a member and partici-
pant, may be asserted as fulfilling anyone or more of itn obligations under 7a
through p or these Specifications provided that the contractor sctively participates
in the group, make every effort to assure that the group has n ponitive impact on
the employment of minorities and women in tbe Industry, ensures that the concrete
benefits of the progrem are reflected in the Contractor's minority and female work-
force and can provide access to documentation which demonstrates the effectiveness
of actions taken on behalf of the Contractor, The obligation to comply, however,
is the Contractor's and failure of such a group to fulfill an obligntion shall not
be a defense for the Contractor's noncompliance,
9. A single goal for minorities and a separate single goal for women have
been eetablished, The Contractor. however, is required to provide equal employment
opportunity and to take affirmative action for all minority groups, both male and
female, and all women, both minority and non-minority, Consequently, the Contractor
may be in violation of the Executive Order if a particular group is employed in a
eubstantially disparate manner (for example, even though the Contractor has achieved
its goals for women generally, the Contractor may be in violation of the Executive
Order if a specific minority group of women is underutilizedl,
lO. The Contractor shall not use the goals and timetables or affirmative action
Btandards to discriminaLft against any person because of race, color, religion, sex
or national origin.
ll. The Contrsctor shall not enter into any Subcontract with any person or
fira debarrad from Government contracts pursuant to Executive Order 1l246.
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12. The Contractor sholl carry out such S8l1ctions and penBlths for violation
of these specIfications and of tho Equn1 Opportunity C1nuBe, including nusponaion,
termination and cancellation of existing subcontrllctll nil may be imposod or ordered
pursuant to Executive Order 11246, as amended, Bnd ita implementillg regulntlons, by
the Office of Federal Contract ComplIance ProgromB, Any Contractor who fal1B to
carry out auch sanctlona and pellalties shall be ln vllllation of these Bpeciflcations
and Executive Order 11246, nB amendod.
13. The Contractor, in fulfilling itB obllgationo under theBe specifications,
ahall implement speciflc affirmative action stepB, at leaBt as extennive as those
Itandards preecr ibed in paragraph 7 of these spec l f iCII t ions, so as to achieve maximum
results from its efforts to enoure equal employment opportunity, If the Contractor
fails to comply with the requirements of the Executive Order, regulations, or these
Ipecifications, the Pennsylvania Deportment of Transportntion shnl1 proceed in accor-
dance with 41 CFR 60-4,8.
14. The Contractor shall designate a responsible official to monitor all employ-
ment related activity to ensure that the company EEO policy Is being carried out to
lubmlt reports relatIng to the provisions hereof as may be required by the Govern-
ment end to keep records. Records shall at least include for ench employe the nome,
address, telephone numbers, construction trade, union affiliation if any, employe
identification number when assigned, aocial security number, race, sex, atatus
(e.g., mechanic, apprentice, trainee, helper. or laborer), dates of changeo in status,
hours worked per week In the indicated trade, rate of pny, and locations at which the
work was performed, Records shall be maintained in on easily understandable and
retrievable form; however, to the degree that existing records satisfy this require-
ment, Contractors sholl not be required to maintain separate records.
l5. Nothing hereIn prOVided sholl be construed as n limitation upon the appli-
cation of other laws which establish different standnrds of compliance or upon the
application of requirements fQr the hiring of locnl or other area resident (e,g.,
those under the Public Works Employment Act of 1977 and the Community Development
Block Grant Program).
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II"r,11 fllrrh~r nnrlc\', till! lollowlnll Ko,llH (or rnlnorlt., OItlll-
? ~ t 11'11 : ", ~ ,I'~ II "0 n H t r u c l I" n c r ,I (t 6 h lIll b" 1 n c Iud" d l n ~. u ,Itn u I
o I I \. d L' I ., i t \' ., t1 ~ L :" ~ l.' d ton" t ~ '. c t 1. I,) n c: U 11 t r Ii t.: t rt .. n d !i lJ b (' 0 n l r.J ~ t .,
~n cX.'cs", uf ~l~)IU(JU to b~ I)l'rform~d in the rl!/'ipCl'tLvl! l~ovurud
u',-/,I., ~n lOlL' ('1.};nII'on,-,'.Ilth I)r PUl\ntiylvanL.a, rhl! ~1I..t~, ilrl! applt.
lJh!I' '"~I thl- "I'n~t.\-.':t(}r'ti l.gKru~.jr.ll on-Slll.! 1.".1l1strl,lctlon work-
tor.,' rll;~;lrJl\'s,. pI' ,...ilPt Ip!r thnt ....0rkfn((I! l:. pl.!rfOrlnlll~ wurk
IJn il f,,'~h'r.ll. 'I..!tJL.raLlv aK~lAtt!d 1)( non-f\lduraLLy l'ctiltad
,1}lIhlr'H.:tL\11l l:~'ntraL'L tor !-i'lb~.()tltrl(t. Tll1.') ,\ppcndlx 'i 'ihulJ hr
u~u<l JOIntly Wltll Appun"lx A,
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COAL
(PERCENIl_
:rantun - \H l:'..l!t:5-Balrr~ PA
IS,\ COU"tl~l:
~OrCIh.~d.i" P~nn;lyLvlni;1..,.......... 'l.')
PA L~~kuwnnnd; PA Luz~rn~;
P^ ~Innrou
H1-S~ISA C~U:ll i,,~, , . , , , ' . , , , , , , , , , , " :, ~
P,\ Co lllmb 1.:1: P,\ \oI~';'h': p,; i'~"mil'o~
,111a;ns p~ r_l..L_~~\
ISA Countlu:
\oIil1iarnsport, P.\..........,........ 1.0
PA L~cornln~
In-S~ISA Countiefl.................... 0.7
PI. Carnervn; PA Centre:
PA Cle~rfleIJ: PA ClInton:
n. Elk; PA Jefferson; P.I Montour;
PI. Non lIumberlllnd; P.\ S"~c1er;
PA Sullivan: FA Unlon
'ie,~
ISA Count lea:
E r le, P..\............................ 2.8
PA Ede
In-S~ISA Count led. . , . , , . , . , , , . , , , . , " 1.8
P.\ Clarion; PA Crawford;
PI. For..sc; PA Vella"~o; P,I WlIrren
_tl.~bur&I,!.l-..!~
ISA Count I"s
,\lc.oon., PA..,..................... 1.J
P.\ Blalr
Johnstown, PA...................... 1. 1
PI. C3mhria; 1'.\ Somerset
Pltc..burKh. Pl\..................... 6.3
P.I Suver; PA Wuhlngton;
PA Wutllordand I PA Allegheny
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Pitt~b'JfI!h. P,\ (Conlntllad)
Non-SHSA Countl.1......,......,.., 4,~
PA Arrnstron6: PA Badford;
PA 8utlur; PA fayette: PA Gre~ne;
PA lndwn.l; MIl '\Ile ':.'.:ny:
MD Garr~~~. ~V Mineral
Hardshuq~ - York - L~ncas ter. P,\
SHSA Countles:
Harr1.sburg, PA.................. 6.2
PA Curnberland; PA Dauphin;
PA Perry
L.3nCo1ster. PA..................'. 2.0
PA I.lIncas ter
York, PA........................ 2.l
PA Adams: PA York
Non-SHSA Countles....,............ ),l
P^ Franklin: Pol Fulton;
PA Huntingdon; PA Juniata;
PA L..banon; P^ Mifflin
Phihdelphl~...!~
SMSA Counties:
Allentown-Bethlehern-
ElIston, PA-NJ................... 1.6
PA Carbon; PA Lehigh:
P,\ Northampton; ~.1 W,Hrel\
Phlladelphl~. P,\-NJ".",..,." 11.j
PA Bucks; PA Chest.r;
PA Del.1warC!. P/\ ~lontgomerY:
PA Phl\;\dalph~lI; N.I 8urHngton;
N.J Camden; NJ CllHtl:e9tt'r
ReadinK. PA..................... 2.S
PA Berks
Non-SMSA Countie~,.. "., ..'...... 14,S
Pol Schuylkill; DE Kent; DE Suss..;
N,I Cap.. Hay
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2. On or about May 28, 1996, ACA served upon Kee-Ta Quay
its Response to Kee-Ta Quay's Request tor Admissions and Answers
to Interroqatories, true and correct copies ot which are attaohed
hereto as Exhibits "C" and "0" and incorporated by reterence.
3. ACA tailed to sutticiently and tully respond to Request
tor Admission and Interroqatory No. 4 in the tollowinq
particulars I
a. Kee-Ta Quay requested ACA admit that
"PennOOT's dehultinq ACA on its projoot was through no
fault of Kee-Ta Quay."
b. In the event ACA respon~ed with anythinq except an
unqualified admission, ACA was directed to "state all tacts
and identify all documents in support of (its] denial or
qualitied admission" and to "set forth the specific actions
or inactions of Kee-Ta Quay which (ACA] allege(s]
contributed to the default."
c. ACA denied the Request tor Admission, but tailed
to state ~ tacts or identify ~ documents in support
thereot. Rather, ACA responded "PennOOT's defaulting ot ACA
on this project is currently in litigation, discovery is
ongoing. ACA will not know all the reasons it was defaulted
on this projeot until discovery is complete."
4. ACA tailed to sutficiently and tully respond to Request
tor Admission and Interrogatory No. 6 in the followinq
particulars I
2
~'
a. Kee-Ta Quay requested ACA to admit that "all the
work described in [Request No.5] was approved by PaDOT."
b. In the event ACA responded with anything except an
unqualiUed admission, ACA was directed to "state all facts
in support of [its] denial or qualified admission" and to
"[i]dentify each item of work performed by Kee-Ta Quay that
[ACA] contend[s] waa approved by PaDOT."
c. ACA denied t.he ~tiQuest for Admission, but failed
to state ~ facts in support of its denial or identify ~
item of work which was approved by PaDOT. Rather, ACA
responded "Although PennDOT paid ACA for ..., that does not
mean that PennDOT approved this work."
5. ACA failed to answer Kee-Ta Quay's Interrogatories
"fully and completely" as required by Pa. R.C.P. No. 4006(a) (2).
6. ACA has failed to "admit or deny the matter or set
forth in dutail the leasons why the answering party cannot
truthfully do so" in accordance with Pa. R.C.P. No. 40l4(b).
7. On June 5, 1996 counsel for Kee-Ta Quay sent a letter
to counsel for ACA advising counsel for ACA of the above
deficiencies and requesting supplemental responses. A true and
correct copy of this letter is attached hereto as Exhibit "E" and
incorporated by reference.
8. On June 17, 1996, ACA's counsel responded to the above
letter, proclaiming that ACA's responses to Kee-Ta Quay's Requast
for Admissions and Interrogatories are sufficient. A true and
3
J
The tenn "ACA" means Adams County Asphalt Company, Inc" Defendant in this action,
The term "nrady" shall mean Brady Contracting Company, Inc" Delcndant in this action,
The term "National Union" shall mean National Union Fire Insurance Company,
Defendant in this action,
The term "PaDOT" shallmenn the Commonwealth of Pennsylvania, Department of
Transportation.
The term "the work" or "the project" shall refer to the work perfomled by ACA pursuant
to Penn DOT Contract No, 082071 for the construction of certain improvements to the rest stop
area located on S,R, 0081 in Cumberland County, Pennsylvania,
RrqurSIS
I, The subcontract bctwecn ACA and Kee-ta Quay on this project called for Kee-ta
Quay to perform the following work at the following prices:
PnDor Item /I Descnpllon Unit Price
0605-2060 Type M Inlet $I,200,00/inlet
0608-0001 Mobilization $ S.7s0,00Ilump sum
0630-001 Plain Cement Concrete Curb $13.10Ilf
0694-0010 Curb cut ramps $49,sO/sy .
1001-0010 Class A Cement Concrete $48S,00/cy
9676-0001 Reinforced Cement Concrete Sidewalk, Special $30,00/sy
9676-0002 Picnic pads $3S.00/sy
2, Kee-ta Quay performed work for Adams County Asphalt on this project from May
24, 1993 until October 13, 1993
3, On or about October 13, 1993. ACA was defaultcd by PaDOT on this project,
2
,
Kee-ta Quay:
PaDOT Item 11
IkwiJ21lon Qwm~ Kee.ta Ouay Price
M
Type M Inlet I $1,200,00
Plain Cement Concrete Curb 32791f $42,954,90
Curb cut ramps 43,66sy $2,161.17
Class A Cement Concrete 2,7cy $1,309,50
Reinforced Cement Sidewalk 336,80sy $10,104,00
Picnic pads 13,33sy $466,55
S58,196,12
0605-2060
0630-0001
0694-0010
1001-0010
9676-0001
9676-0002
Total
10, National Union was paid the amounts set forth in the above request for admission
with the knowledge and consent of ACA.
II, ACA has filed a complaint against PaDOT before the COlllmonwealth of
Pennsylvania, Board of Claims at Docket No, 1809, in which ACA avers at paragraph 51 that it
completed approximately 94% of the work on the Project.
12, The 94% of the work averred to be completed in the above referenced complaint
includes all of the items of work completed by Kee-ta Quay,
13. The above referenced complaint was verified by Robert M, Mumma, President of
Adams County Asphalt,
Date: April 29, 1996
POWELL, TRACHTMAN, LOGAN,
CARil & B:WMAN, PC
By/dJ
David W Francis
114 North Secund Street
lIarrisburg, P A 17\ 0 I
(717) 238-9300
Attorney's for KCC-lO ()uay Construction
4
.
2. The words "describe", "slate", "state facts", "provide inlimllation" or similar
instructions or temls sholl mean to describe and state fully with ,Ill relevant details, by relerence to
underlying rather than ultimate facts, conclusions or gcneralities, and to particularize as to timc,
place and manner, unless the context indicates othcrwise. Furthermore. thesc terms ShRII be
deemed to include a renuesllhAI vou Idenllfv (RS thRt tt'rm Is dcnnt'd helow) 1111 wltnt'ues
And olher Ilenons who Ilossess IIlV fRCls. knowled~e or IlIformlllloll which 15 t'mbodit'd in the
answer 10 Ihe Inlerrol!Rlorv. and Ihat vou Idenlify (RS thRt term 15 denned bt'low) each Rnd
everv document (RS Ihallerm Is donned below) which Inclndt's or refen 10 onv oftbe fRcts.
referenced or Informallon sel f9Mh In Ihe Answer 10 the Interro~olorv. or on whieh xou
relied unOR In whole or In Dart In nrenarinsr the answer '0 the hllerroRnlorv.
3. The term "document" includes without limitation, any wrillen, recorded or graphic
mAlleI', however produced or reproduced, manually, mechanically, electronically, or othcrwise,
including, but not limited to, correspondence, telegrams, notes or other wrillen communications;
notes or oral communication, telephone conversations, meetings or other notes recording any
information or conversations; calendars, appointment books, logs, diaries, notcbooks or similar
materials; invcstigative files and materials; contracts or agreements; memoranda; reports; studies;
recordings, films, or video materials; computer printout or media; tapes or casselles; analyses;
projections; workpapers; orders; invoices; telephone messages, photographs, charts or other visual
materials; compilations of data or information; plans, drawings, specifications; test results; or other
materiaJlrom which data or other information can be obtained The term "document" also includes
any non-identical copies, draft of any of the foregoing, in addition to the original documents, which
copies and drafts include writings, notations, corrections or markings peculiar to such copy or
draft.
4. The term "identifY" as used in connection with a pcrson or entity means to set forth
his, her or its full name, residential and employment address if a natural person, and location if not a
natural person
The term "identifY" as used in connection with a document mcans to slate its date, the
identity ofits author(s), the identity ofits sender(s), the identify of the person(s) or entily(ies) to
whom it was addressed, the identity of the recipient(s), a description of the title and formal of the
document, the number of pages of the document, the identity of each person known or believed to
have possession, custody, control of or access to any copy or original of the document, and a
detailed description of the substance and content of the document
5.
5.
acti()n.
6
action.
The terms "Kee-ta Quay" means Kee-ta Quay Construction, Plainlitfin this action
The term" ACA" means Adams County Asphalt Company, Inc Defendant in this
The term "Brady" shall means Brady Contracting Company, Inc. Defendant in this
2
The term "ACA" means Adams County Aspholt Company, Inc., Delimdont in this action
The term "lIrody" shalllllcan Brady Contracting Company, Inc., Delcndont in this action.
The tenn "NationallJnlon" shalllllean NationallJnion Fire Insurance Company,
Defendant in this action.
The term "PI\DOT" shall mean the Commonwealth of Pennsylvania, Department of
Transportation.
The term "the work" or "the project" shall refer to the work performed by ACA pursuant
to Penn DOT Contract No. 082071 for the construction of certain improvements to the rest stop
area located on S.R. 0081 in Cumberland County, Pennsylvania.
Requests
1. The subcontract bctwccn ACA and Kee-la Quay on lhis project called lor Kee.ta
Quay to perform the following work at the following prices: Denied,
PaDOT Item # D " Unit Pdg
escnpllon
0605-2060 Type M Inlet $1,200.00/inlet
0608-0001 Mobilization $ 5,750.00/lump sum
0630-001 Plain Cement Concrete Curb $1110/lf
0694-0010 Curb cut ramps $49.50/sy
1001-0010 Class A Cemenl Concrete $485.00/cy
9676-0001 Reinlorced Cement Concrete Sidewalk, Special $30.00/sy
9676-0002 Picnic pods $35.00/sy
2. Kee-ta Quay perlormed work for Adams County Asphalt on this project from May
24, 1993 until October 13, 1993
fulmi trod.
1 On or about October 13, 1993, ACA was defaulted by PaDOT on this project.
^(lmi tteel.
2
Kee-ta Quay: /.}In iL,<1 ,
PaDOr llernJt
l!l:illJJ2ililJl QWIll.tJJ~ Kee-la OUQY Pricl:
fJllil
Type M Inlet I SI,200.00
Plain Cement Concrete Curb 327911' S42,95490
Curb cut ramps 43.66sy $2,161.17
Class A Cement Concrete 2.7cy SI,309.50
Reinforced Cement Sidewalk 336.80sy $10,10400
Picnic pads 13.33sy $466.55
S58,196.12
0605-2060
0630-0001
0694-0010
1001-0010
9676-0001
9676-0002
Total
10. National Union was paid the amounts set forth in the above request for admission
with the knowledge and consent of ACk !l:mied,
11. ACA has tiled a complaint against JlaDOT before the Commonwealth of
Pennsylvania, Board of Claims at Docket No 1809, in which ACA avers at paragraph 51 thaI it
completed approximatcly 94% of the work on the Project. J\dmittccl,
12. The 94% of the work averred to be completed in the above referenced complaint
includes all of the items of work completed by Kee-ta Quay. lIdmittcd.
13. The abovc referenced complaint was verified by Robert M. Mumma, President of
Adams Coullty Asphalt lIdmitted.
mHEN & IlUNTINGroN, p,c.
BY:~'
REMm KII.GI\RRIFF, IRE
Attorney for D.Jfcndilllt,
Mama County Asphalt Co., Inc.
D.Jted: S /ZB ('1ft
Date: April 29, 1996
4
2 The words "describe", "slate", "~tate facts", "provide inlilfllllltion" or similar
instructions or terms shall mean to describe and state lully with uJJ rclevlInt details, by reference to
underlying rBther than ultimate Incts, conclusions or genemlities, and to plIrticulllrize as to time,
place and manner, unless the context indicates otherwise. Jo'urthwllore. these terms shull be
drenled to include a reouest lhn' vou identify (liS thot tern. Is denned below) 811 wltnellses
IlIId other Ilersons who IlOSSt'SS allv fltcts. knowled~e or Informntlon which Is embodied In the
IInswer to the Interrol!lItorv. IIlId thnt VOII I~entifv (liS IhnltwlI is den lied below) ellch ""J!
everv docllmelll (liS thaI term Is dt'nnt'd below) wbich illellldt's or refers to IIIIV of the f.lcts.
referenced or Informllllon set forth In the Answer to the Inlerrol!atorv. or on which vou
relied liDO" ~n whole or in Dart in nrenorinrz the Answer to the InterrollRtorv.
3. The term "document" includes without limitation, any wrillen, recorded or graphic
maUer, however produced or reproduced, manually, mecbanically, electronically, or otherwise,
Including, but not limited to, correspondence, telegrams, notes or other wriuen communications;
notes or oral communication, telephone conversations, meetings or other notes recording any
information or conversations; calendars, appointment books, logs, diaries, notebooks or similar
materials; investigative files and materials; contracts or agreements; memorBnda; reports; studies;
recordings, films, or video materials; computer printout or media; tapes or cassettes; analyses;
projections; workpapers; orders; invoices; telephone messages; photographs, charts or other visual
materials; compilations of data or information; plans, drawings, specifications; test results; or other
material from which data or other information can be obtained. The term "document" also includes
any non-identical copies, draft of any of the foregoing, in addition to the original documents, which
copies and drafts include writings, notations, corrections or markings peculiar to such copy or
draft.
4. The term "identify" as used in connection with a person or entity means to set forth
his, her or its full name, residential and employment address if a natural person, and location if not a
natural person.
The term "identifY" as used in connection with a document means to state its date, the
identity of its author(s), the identity ofils sender(s), the identifY of the person(s) or entity(ies) to
whom it was addressed, the identity of the recipient(s), a description of the title and format of the
document, the number of pages of the document, the identity of each person known or believed to
have possession, custody, control of or access to any copy or original of the document, and a
detailed description of the substance and content of the document.
5.
The terms "Kee.ta Quay" means Kee-ta Quay Construction, Plaintifl'in this action.
5.
action.
The term "ACA" means Adams County Asphalt Company, Inc. Defendant in this
6.
action.
The term "Brady" shall means Brady Contracting Company, Inc., Defendant in this
2
.,,"'~II'oJl., ~",J."'" ",,, "P"'f' (!)
lAW nil It I.')
POWELL, TRACI-ITMAN, LOGAN, CARRLE b} BOWMAN
A t>ltlltl'l'lIIIN^1 . \lttl'llJtAII'lt.
I." NllJtIU .,)lllINU \lItlll
(/11) ;),11\ 11:100
fAL..IMIU 11111 ;1.I1l ')'~'I
.1li/~lTIlC.IJL"'IIIlOAl>
I(U-lC, OF PIUJ~M^ PA 10..Of)
(l}IO) l'1".U/OO
FAX (610) :H\".Olf)O
~uln l;lf)
811 CHURCH IlG\n
(1II11RY ItlLL. NJ 060Q;1
(BOt)) 663.0021
fAX (600) 663.11:)00
MICIIML c ftl.AOITMAN
PAUL A Lf,XAN.....
(.UNTJll'IlO CAIU.U.
l~ GIlAINl:O. BOWMAN
IUCU^IlU I ^mfNHLltll., JIl
JONAlIMN K, Il00UN
JOIL P ..u.II..nfU'~.
MAkK ~ McKAIN-
nHAN N UALlfk.HAOf"
MVIl) T_ 80lCfJU
~lVIN .. WAT~N
DAVID 'II fRANCI~
U1VIH C, IARo.UU-
1'.0111\ T 1 IM1ARO.
MAllIA r COUNTRY-
MICHAEL"" "'INfllLO-
ANDRI'" I CLAU'u
IIMI.RIIBURC, I'^ 1/101
June 5, 1996
Of COUN!lll
MLPlt I l'O""tL~ J~
MlJ\ICIt 'II LIPDU.
yn I'AX
..M.~O ^DMITTlP IN NJ
fAUO APMITTIP IN He
'AUO ADMITTlO IN Mb
-AUO ADMlrTlD IH DI
PLf^~ II.fPLY TO
Harrisburg
Renee Kilgarriff, Esq.
Cohen & Huntington
P.O. Box 59449
philadelphia, PA 19102
Re: Kee-ta Quay v. Adams county Asphalt et al.
No. 96-4296 civil (Cumberland county C.P.)
Dear Renee:
We recently reviewed your answers to Kee-ta Quay's Request
for Admissions and Interrogatories related thereto, and have
found two of your responses to be deficient and incomplete under
the Pennsylvania Rules of civil Procedure. I will refer to each
deficiency specifically below.
First, with regard to Request for Admission and
Interrogatory #4, you deny that "PaDOT's defaulting of ACA on
this project was through no fault of Kee-ta Quay", but then fail
to state any facts or identify any documents in support of this
denial. Rather, you vaguely state that "PaDOT's defaulting of
ACA on this project is currently in litigation and discovery is
ongoing. ACA will not know all the reasons it was defaulted on
this project until discovery is complete." This response is
vague, nonresponsive, and therefore deficient under the
Pennsylvania Rules of civil Procedure. Please be aware that we
have reviewed all the pleadings, discovery and deposition
transcripts in the PaDOT/ACA litigation presently pending before
the Board of Claims at both dockets. As you know, Kee-ta Quay
has never been mentioned in any of the pleadings or in the
discovery. ACA has always claimed that it was defaulted because
(1) PaDOT changed the notice to proceed; (2) PaDOT refused to
approve project personnel; (3) PaDOT overreached in the
JI.IN II H:1b 1,lklb~M 11:1
.....e.I..i
.
COHEN & HUNTINGTON, P.C,
Allo,nc."t lib'"
PIlII Office BOll ~9449
Elevemh rloor
1 ~ 1 ~ Markel Slreel
PhUadelphla, Pennsylvania 19102
01010. .. 'i\I.IA~ '
IDYAlD II4UAI II
'mIL, KLINK'
IOIDTA M. _II.'
,maJ..MITH
JOImt J, ..AI.... '
IlNa I\II.GAAII" .
IAMI. ... 'LOCK .
NAlY II.I.IN IIIMO I
NIXl)II M. DAVIHPOlr'
011) 564.1'00
Mil U IS) ~jo.I<166
UOZ lAUUI. OAIC lOAll
SUrrlIl}j
VOlHlI5, tq 0100
(61)9) 62H444
,,^X (61)9) 6Z7.cml
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IOIIH A. OUIIIIW.I. '
June 17, 1996
O' COUNS'"
.. AUSA O,'WD
via racsimile (717) 238-9325
. ALMO ADMIl7IllI1< HI
.. AlSO Al>NITI'ID If\I DC
I AUO ADmnD IJ'f NO
Ir ALlOADNmlDIM DI
. -'uo ADNmID IN NY Az-'D NN
via Requl&r Nail
Michael W. wintield, Esquire
'ovell, Trachtman, Loqan,
carrle , Bowman, P.C.
114 North second Street
Harrisburg, PA 17101
.e. Ise-ta Quay Construction v. Adams county Asphalt company,
et al.
Our ~ile No. 5174-40
Dear Hichael:
Please be advised that I have received your June 5, 1996
correspondence reqardinq ACA's Response to Kee-Ta-Quay's Request
tor Admissions and Interrogatories. with respect to Kee-Ta-Quay's
objection to Response and interrogatory number 4 wherein ACA denies
that PennDot's defaulting of ACA on the project wali through no
fault of Kee-Ta-Quay, it is ACA's position that the response to the
interroqatory and the Request for Admission is adequate. Althou9h
you have reviewed the pleadin9s and discovery which have taken
place to date in the PennDot litigation, it i. important to note
that Robert MUMa's deposition was not taken and discovery is still
ongoing in that matter. until di.oovery i8 complete, there is no
way for ACA to state that Kee-Ta-Quay was not partly responsible
for ACA's default on that Project. Additionally, it has recently
come to my attention that Kee-Ta-Quay may be responsible for some
of the liquidated damage. which were aSliessed again~t ACA on that
project because Kee-Ta-Quay did not complete its Contract work in
a timely fashion. ACA does not have any specitic documents which
would point to this contention other than Kee-Ta-Quay's own records
and payment applications and Bob Mumma's testimony. Kee-Ta-Quay's
records show that Kee-Ta-Quay was still pourin9 concrete and
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Kce-Ta Quay Construction
VS.
Adams County Asphalt c,?mpllny, Inc.
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COMMONWHAI/I'II OF PI\NNA I
COllNTY OF llAlIPIIIN:
HHHHIFI"B Rl\'l'lIRN
Nil, 95-4296 Civil Term
PAlIIl 449
AND NOW:
August 15th
Complail.'l~ ! ~otic:e
III 95 ,III 9r43
A.~l,
SEHVlm TilE
Wl'l'IIIN
._~.......-.
lIPON
Adams co. Asphalt Co., Inc.
IIY PI\HSONALI.Y
IJANIlING '1'0
Teresa McMurtrie, Receptionist and person in charge at time of
service
A TRUE ATTJ>/'l'I'Ell COpy OF TilE OlllOlNAJ. complaint & Notice
AND MAKINO KNOWN '1'0 her
TilE CON'n:N'I'S TIIEREOF AT their place
of business, 614 N. front st. Harrisburg,Pa.
SO ANSWERS
~,..-.,.... t..J1'-'
...~?/. \tW\M~
SHERIFF OF DAUPHIN COUNTY, PCNNA
IIY. . ;).'I:,j, .r: (~('<~Jre....
DEPUTY SIIEIlIFF
. ".swnrn and SUhflCt(;i Qd ~()
b(>:S,f7j';"1.;~\ 1~ . ilY of .August 11) 95
lXj c.vfV C;..., f lW4ta)
PHOTIIONOTARY
SIIEIlIFF'S COST ~. p>.So
S.IA
5. Admitted in part and denied in part. It is admitted that ACA
submitted a bid to Pennsylvania Department of Transportation
(IPennDOT"). However, the bid is a writing which speaks for itself and
any charaoterization or interpretation thereof is expressly denied.
6. Admitted.
7. Admitted.
a. Admitted in part and denied in part, It is admitted that ACA
furnished a payment bond for the protection of claimants supplying labor
and/or materials on the Project. However, the payment bond and ACA's
contract wJ,th PennDot are writings WIUl.:il speak for themselves and any
charaoterization or interpretation thereof is expressly denied.
9. Admitted.
10, Admitted in part and denied in part, It is admitted that in
July 1992, ACA entered into a subcontract with Kee-ta Quay, The
subcontract is a writing which speaks for itself and any
characterization or interpretation thereof is expressly denied.
11, Denied. The subcontract is a writing which speaks for itself
and any charactsrization or interpretation thereof is expressly denied,
12. Admitted in part and denied in part. It is admitted that ACA
entered into a subcontract with Brady contracting Company, Inc.
("Brady") . However, the subcontract is a writing which speaks for
itself and any characterization or interpretation thereof is expressly
denied.
13. Denied. ACA is without suffJcient knowledge or information to
form a belief as to the truth of the allegations in this paragraph and
therefore denies the sl1me. Moreover, the subcontract is a writing
which speaks fOl' itself and any characterization or interpretation
thereof is expressly denied.
14. Admitted.
15. Admitted in part and denied in part. It is admitted that
Ree-ta Quay supplied labor and materials for the Project beginning May
24, 1993. It is denied however that the labor and materials supplied to
the project were in accordance with the ACA subcontract. Moreover, ACA
is without sufficient knowledge or information to form a belief as to
the truth of the allegation that Kee-ta Quay supplied labor and
materials for the Project through october 13, 1993 and therefore denies
same. By way of further answer, ACA is without sufficient knowledge or
information to form a belief as to the truth of the allegation that Kes-
ta Quay supplied labor and material for the project in accordance with
its subcontract with Brady and therefore denies same.
16. Denied.
COUNT I
ADAMS COUNTY ASPHALT COMPANY. INC.
17. ACA incorporates paragraphs 1 through 16 above as though set
forth at length herein.
18. Admitted in part and denied in part. It is admitted that
Ree-ta Quay supplied labor and materials to ACA on the Project beginning
May 24, 1993. However, it is denied that Kee-ta Quay supplied labor and
3
materials to ACA in accordance with the subcontract. Finally, ACA is
without sufficient knowledge or information to form a belief as to the
truth of the allegations in the remainder of the paragraph and therefore
denies same.
19. Denied. The allegations set forth in this paragraph are
conclusions of law to which no response is required. By way of further
answer, ACA denies that Kee-ta Quay is entitled to payment in full for
the work performed and the materials supplied to the Project.
20. Denied. ACA is without sufficient knowledge or information to
form a belief as to the truth of the allegation that Kee-ta Quay has
fully and properly performed its obligations under the subcontract and
therefore denies same. ACA has paid Kee-ta Quay and has offered to pay
Kee-ta Quay for all of the work that it can confirm was performed by
Kee-ta Quay on the project and that was paid to !lCA by PennDot.
However, ACA has previously informed Kee-ta Quay that it had no way of
verifying the fact that Kee-ta Quay performed $73,045,00 worth of work
on the project and requested Kee-ta Quay to provide the information to
support such a claim. To date, Kee-ta Quay has failed to provide such
information. Accordingly, ACA denies that Kee-ta Quay fully and
properly performed its Obligations under the subcontract and denies that
Kee-ta Quay is owed $73,045.00.
21. Admitted in part and denied in part. It is admitted that ACA
has paid Kee-ta Quay $10,480.05 for the work performed and the materials
supplied on the Project since that was the amount that ACA was paid by
PennDot. It is specificallY denied, however, that there is a balance
due and owing Kee-ta Quay of $62,564.95. On the contrary, ACA has only
4
been paid by PennDot for approximately $5,000.00 more of the work which
was performed by Kee-ta Quay and has offered to pay Kee-ta Quay that
amount. Kee-ta Quay has not accepted that offer, As far as the
remaining balance is concerned, ACA is without sufficient knowledge or
information to form a belief as to the truth of the allegation that that
amount is d\le and owing Kee-ta Quay and therefore denies same.
Moreover, ACA has not been paid that amount by PennDot and pursuant to
the terms of ACA's subcontract with Kee-ta Quay, ACA is not required to
pay that amount until it is paid to ACA by PennDot.
22. The allegations But forth in this paragraph lire conclusions of
law to which no response is required. By way of further of answer, it
is denied that ACA breached the subcontract with Kee-ta Quay.
23. Admitted in part and denied in part. It is admitted that ACA
has not paid Kee-ta Quay $62,564,95. It is specifically denied,
however, that that amount is due and owing to Kee-ta Quay.
WHEREFORE, Adams County Asphalt Company respectfully requests that
this Honorable Court enter judgment in favor of Adams County Asphalt
company and against Kee-ta Quay Construction and award Adams County
Asphalt company interest, attorney's fees and costs of suit.
COUNT II
BRADY CONTRACTING COMPANY
24. ACA incorporates paragraphs 1 through 23 above as though set
forth at length herein,
,5
25. ACA is without sufficient knowledge or information to form a
belief as to the truth of the allegations in this paragraph and
therefore denies same.
26. ACA is without sufficient know:edge or information to form a
belief as to the truth of the allegations in this paragraph and
therefore denies same.
27. ACA is without sufficient knowledge or information to form a
belief as to the truth of the allegations in this paragraph and
therefore denies same.
28. The allegations in this paragraph are conclusions of law to
which no response is required. By way of further answer, ACA is without
sufficient knowledge or infor.mation to form a belief as to the truth of
the allegations in this paragraph and therefore denies same.
29. ACA is without sufficient knowledge or information to form a
belief as to the truth of the allegations in this paragraph and
therefore denies same.
WHEREFOR!, Adams County Asphalt Company respectfully requests that
this Honorable Court enter judgment in favor of Adams County Asphalt
company and against Kee-ta Quay construction and award Adams county
Asphalt company interest, attorney's fees and costs of suit.
COUNT III
NATIONAL UNION FIRE INSURANCE CO. (IN THE ALTERNATIVE)
30. ACA incorporates paragraphs 1 through 29 above as though set
forth at length herein.
6
31. Admitted.
32. ACA is without sufficient knowledge or information to form a
belief as to the truth of the allegations in this paragraph and
therefore denies same.
33. Denied. ACA has paid or has offered to pay Kee-ta Quay for
all of the work it performed on the project which was paid for by
PennDot pursuant to the terms of the ACA subcontract, ACA is without
sufficient knowledge or information to f.orm a belief as to the truth of
the allegation that Kee-ta Quay performed additional labor or supplied
additional materials to the Project for which it was not paid and
therefore denies same. Moreover, ACA is without sufficient knowledge or
information to form a belief as to the truth of the allegation that Kee-
ta Quay performed work and/or supplied labor on the Project pursuant to
the Brady subcontract.
34. Denied. The allegations in this paragraph are conclusions of
law to which no response is required.
35. The allegations in this paragraph are conclusions of law to
which no response is required,
WHERBFORB, Adams County Asphalt Company respectfully requests that
this Honorable Court enter judgmont in favor of Adams County Asphalt
Company and against Kee-ta Quay construction and award Adams county
Asphalt company interest, attorney's fees and costs of suit.
NBW MA'r1.D
36. ACA incorporates paragraphs 1 through 35 above as though Bet
forth at length herein,
7
37. Kee-ta Quay has failed to state a cause of action upon which
relief can be granted.
38. Keo-ta Quay's claim is barred by the statute of Limitations.
39. Kee-ta Quay's claim is barred by the statute of Frauds.
40. Kee-ta-Quay's Complaint is barred by the doctrine of waiver
and/or estoppel.
41. Kee-ta Quay's claim is barred by the doctrine of accord and
satisfaction.
42. Kee-ta Quay's claim is barred by the terms of its subcontract
with ACA since ACA has not been paid for Kee-ta Quay's work by PennOot.
43. Kee-ta Quay reserves the right to raise each and every defense
which may be disclosed during the course of discovery in these
proceedings.
WHBRBFORB, Adams County Asphalt Company respectfully requests that
this Honorable Court enter judgment in favor of Adams County Asphalt
Company and against Kee-ta Quay Construction and award Adams County
Asphalt Company interest, attorney's fees and costs of suit.
COHEN' HUNTINGTON, P.C.
BYI )S'
oy 8. Cohen, EAquir
Attorney 1.0. No. 323 2
Renee ~ 19arriff, Esquire
Attorney 1.0. No. 67580
Attorneys for Defendant,
Adams county Asphalt company
Ino.
DATED I
C S/
1
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B:\l17~O.ANS
8
JOB lAVA', "QUID
'1. 'up~... cou~t I.D. .0. 15312
IAIIIV A. UOIITIIAL, "QUID
'1, 'up~'" cou~t I.D, .0. 55612
DOOLD' " lAVA.
101 '.!.D. It~..t
.o.t 011 iCe Boll '32
..~~i.burt, '.DD'r1vIDil 11108-0'32
Tl1.pbolll'
'11l.
1111) 236-3200
(1111 236-6163
Atto~D.r lo~ oal.a4IDta
NATIOIIAL lIIIlOII 'IU 1..IIIUUrC. eo,
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
KEE-TA QUAY CONSTRUCTION,
Plaintiff
ADAMS COUNTY ASPHALT
COMPANY, INe.,
NO. 95-4296 CIVIL TERM
and
BRADY CONTRACTING CO., INC.,
and
NATIONAL UNION FIRE
INSURANCE COMPANY,
Defendants
: JURY TRIAL DEMANDED
ANSWIR WITH NIW MATTIR O. DI.INDANT,
NATIONAL UNION 'IRI IHSURANCI COMPANY TO
COMPLAINT 0' PLAINTI". KII-TA QUAY CONSTRUCTION
AND NOW, comes Defendant, National Union Fire Insurance
Company ("National union"), by and through their counsel,
Reynolds & Havas, a Professional corporation, and hereby files
this Answer with New Matter to the Complaint of Plaintiff, Kee-Ta
Quay Construction ("plaintiff"), averring the following in
support thereof:
ANSWIR
1. Denied. After reasonable investigation, National
Union is without knowledge or information sufficient to form a
belief as to the truth of the avermentB of this paragraph and
they are, therefore, denied.
2. Admitted upon information and belief.
3. Denied. Atter reasonable investigation, National
Union i. without knowledge or information sufficient to form a
beliet as to the truth of the averments of this paragraph and
they are, therefore, denied.
4, Denied. It is specifioally denied that National
Union's principal place of business is located at 139 University
Place, PittSburgh, Pennsylvania, 15213. On the contrary,
National Union's principal place of business is located at 70
Pine street, New York, New York, 10270.
5. Denied. After reasonable investigation, National
Union is without knowledge or information sufficient to form a
belief as to the truth of the averments of this paragraph and
they are, therefore, denied.
6. Denied. After reasonable investigation, National
Union is without knowledge or information sufficient to form a
belief as to the truth of the averments of this paragraph and
they are, therefore, denied.
7. Admitted in part and denied in part. It is
admitted upon information and belief that on or about June 3,
1992, Defendant, Adams County Asphalt company, Inc. ("ACA"), was
awarded a contract by the Pennsylvania Department of
Transportation ("PennDOT"). After reasonable investigation,
National Union is without knowledge or information sufficient to
2
torm a belief as to the truth of the remaining averments ot this
paragraph and they are, therefore, denied.
8. Denied. The averments of this paragraph state a
conclusion ot law to which no response is required and they are,
theretore, denied. By way of further answer, the contract
between ACA and PennDOT ("the contract") and the public Works
Contractors' Bond Law of 1967, 8 Pa. Cons. Stat. 5191 ~ ~.
("the Bond Law"), being in writing, speaks for themselves and the
averments relating thereto are, therefore, denied.
9. Admitted in part and denied in part, It is
admitted that on or about June 12, 1992, National union, as
surety, executed a Payment Bond ("the Bond") (Bond No. 10-61-59),
on behalf of ACA, as principal, and that a true and correct copy
of said Bond is attached to plaintiff's Complaint as Exhibit "A".
The remaining averments of this paragraph state a conclusion of
law to which no response is required and they are, therefore,
denied.
10. Admitted in part and denied in part. It is
admitted that attached to Plaintiff's Complaint as Exhibit "B" is
a copy of a document titled Subcontract Agreement - Adams County
Asphalt company Contractor with Kee-Ta Quay construction
Subcontractor ("the ACA subcontract"). The ACA Subcontract,
being in writing, speaks for itself and, therefore, the averments
relating thereto are denied. By way ot further answer, atter
3
reasonable investigation, National union is without knowledge or
information sufficient to form a belief as to the truth of the
averments of whether a true and correct copy of the entire ACA
Subcontract is attached to plaintiff's Complaint all Exhibit "B"
and the averments relating thereto are, therefore, denied.
11. Denied. The ACA Subcontraot, being in writing,
speaks for itself and the averments relating thereto are,
therefore, denied.
12. Denied. After reasonable investigation, National
Union is without knowledge or information sufficient to form a
belief as to the truth of the averments of this paragraph and
they are, denied. By way of further answer, any subcontract
entered into between Defendant, Brady contracting company, Inc.
("Brady") and ACA, being in writing, speaks for itself, and the
averments relating thereto are, therefore, denied.
13. Admitted in part and denied in part. It is
admitted that attached to plaintiff's Complaint as Exhibit "C"
are certain documents. After reasonable investigation, National
Union is without knowledge or information sufficient to form a
belief as to the truth of whether said documents are, in fact, a
subcontract agreement between Plaintiff and Brady. By way of
further answer, any such subcontract, being in writing, speaks
for itself and the averments relating thereto are, therefore,
denied.
4
14. Denied. The averments of this paragraph state a
oonolusion of law to which no response is required and they are,
therefore, denied. After reasonable investigation, National
Union is without knowledge or information sufficient to form a
belief as to the truth of the averments of this paragraph and
they are, tharefore, denied.
15. Denied. The averments of this paragraph state a
oonolusion of law to which no response is required and they are,
therefore, denied. By way of further answer, after reasonable
investigation, National Union is without knowledge or information
sufficient to form a belief as to the truth of the averments of
this paragraph and they are, therefore, denied.
16. Denied. The averments of this paragraph state a
conclusion of law to which no response is required and they are,
therefore, denied. By way of further answer, after reasonable
investigation, National Union is without knowledge or information
sufficient to form a belief as to the truth of the averments of
this paragraph and they are, therefore, denied.
COUNT I
ADAMS COUNTY ASPHALT COMPANY. INC.
17. The answers contained in paragraphs 1 through 16
inclusive hereof are incorporated by referenced herein as set
forth in their entirety.
5
lB. _ 23. Denied. The averments of this paragraph are
direoted to a Defendant other than National Union and, therefore,
there is no need to answer same. However, to the extent said
paragraphs imply any liability whatsoever on the part of National
Union, then same are speoifioallY denied.
WHEREFORE, Defendant, National union Fire Insurance
company, demands judgment in its favor and against plaintiff,
Kee-Ta Quay Construction, with costs assessed to Plaintiff.
COUNT II
BRApY COI~RACTING co.. INC.
24. The answers contained in Paragraphs 1 through 23
inclusive hereof are incorporated by refer~nced herein as set
forth in their entirety.
25. _ 29. Denied. The averments of this paragraph are
directed to a Defendant other than National Union and, therefore,
there is no need to answer same. However, to the extent said
paragraphs imply any liability whatsoever on the part of National
Union, then same are specifically denied.
WHEREFORE, Defendant, National Union Fire Insuranoe
company, demands judgment in its favor and against plaintiff,
Kee-Ta Quay construction, with costa assessed to plaintiff.
6
OOUMT III
MATIOKAL UMIOK 'III IM.ORABOI COKPABY
(in the alternative)
30. The answers contained in Paragraphs 1 through 29
inclusive hereof are incorporated by referenced herein as set
forth in their entirety.
31. Denied. The averments of this paragraph state a
conclusion of law to which no response is required and they are,
therefore, denied. By way of further answer, the ACA
subcontract, being in writing, speaks for itself, and, therefore,
the averments relating thereto are denied.
32. Denied. The averments of this paragraph state a
conclusion of law to which no response is required and they are,
therefore, denied. By way of further answer, the Brady
subcontract, being in writing, speaks for itself, and, therefore,
the averments relating thereto are denied.
33. Denied. The averments of this paragraph state a
conclusion of law to which no response is required and they are,
therefore, denied.
34. Denied. The averments of this paragraph state a
conclusion of law to which no response is required and they are,
therefore, denied.
35. Denied. The averments of this paragraph state a
conclusion of law to which no response is required and they are,
therefore, denied. By way of further answer, it is specifically
7
denied that National union has refused without legal obligation
to honor any obligations to Plaintiff. Further, the subjeot
Bond, being in writing, speaks for itself and the averments
relating thereto are, therefore, denied,
WHEREFORE, Defendant, National Union Fire Insuranoe
company, demands judgment in its favor and against plaintiff,
Kee-Ta Quay construction with costs assessed to plaintiff.
NBW MATTIR
37. The answers contained in paragraphs J1 through 36
inclusive hereof are incorporated by reference herein as if set
forth in their entirety.
38. Plaintiff commenced this action by filing a
Complaint on or about August 23, 1995.
39. Pursuant to section 5523(3) and 5502(a) of the
Judioial Code, and 42 Pa. Cons. stat. S5523(J) and 5502(a), a
claimant under a payment bond is required to commence an aotion
liithin one year from the date of the cause of action accrued.
The cause of action under a payment bond accrues on the day the
last of the labor or material was supplied by the claimant.
40. As stated in Paragraph 15 of Plaintiff's
Complaint, plaintiff last supplied labor and materials to the
project on October 13, 1993. Accordingly, Plaintiff's payment
bond olaims against National Union are barred by the applioable
statute of limitations.
8
41. The Bond specifically incorporates by reference
the Bond Law.
42. The Bond Law requires any claimant who has a
direct contractual relationship with any subcontractor of the
prime contractor to give written notice of its claim to the
principal within ninety (90) days of the qate the labor was last
performed or the material was last furnished.
43. The notice is to be served by registered or
certified mail, postage pre-paid, in an envelope addressed to the
contractor at any place where his office is r.egularly maintained
for the transaction of business or served in any manner by which
l~gal process may be served.
44. Plaintiff has failed to provide ACA with written
notice of its claim within ninety (90) days of the date the labor
was last performed or the material was last furnishad, as
required by the Bond.
45. Alternatively, even if Plaintiff did provide
notice to ACA of its claim within ninety (90) days, which is
expressly denied, said notice was not sent to ACA in the manner
provided in 8 Pa. Cons. Stat. S194.
46. Accordingly, Plaintiff is estopped and legally
prevented from asserting any claims against National Union under
the Bond with respect to the Brady Subcontract.
9
47. To the extent that Plaintiff seeks reoovery in
oontraot, Plaintiff materially breaohed the terms and oonditions
of the ACA and Brady suboontraots and the change orders thereto,
and, therefore, it is not entitled to relief thereon.
48. Plaintiff'a recovery is barred by its failure to
mitigate its damages.
49. If plaintiff sustained damages as alleged in its
Complaint, which is specifically denied, said damages were caused
by the acts and/or omissions of peraons or entities other than
National Union and, therefore, National Union is not liable to
Plaintiff.
50. If Plaintiff sustained damages as alleged in its
Complaint, which is specifically denied, said damages were caused
by the acts or omissions of Plaintiff and, therefore, National
Union is not liable to plaintiff.
51. As surety, National Union is entitled to, and
does, assert any and all rights and defenses that ACA, its
principal, has to Plaintiff's claims.
10
./
..
("PaDOT"), and engages in, among other things, subcontract work
for general contractors.
2. Defendant Adams County Asphalt company ("ACA") is a
Pennsylvania corporation with a principal place of business
located at 614 North Front street, P.O. Box 1531, Harrisburg,
Pennsylvania 17105.
3. DefEndant Brady contracting co., Inc. ("Brady"), upon
information and belief, is a Pennsylvania CorporAtion with a
principal place of business located at 3605 Hartzdale Drive, camp
Hill, Pennsylvania 17011.
4. Defendant National Union Fire Insurance company
("National"), upon information and belief, is a Pennsylvania
corporation licensed to do business in Pennsylvania, with a place
of business located at 139 university Place, Pittsburgh, PA
15213.
5. On or about March 12, 1992, ACA submitted a bid to PaDOT
for the rehabilitation and construction of certain improvements to
the rest stop area located on SR0081 (also known as Interstate 81)
in Cumberland county, Pennsylvania ("Pr.oject").
6. The scope of the Project work included, among other
things, the installation and extension of the existing on and off
ramps, the expansion of existing parking facilities, drainages,
improvements, and the installation of guide rails and lighting.
7. On or about June 3, 1992, ACA was awarded the contract
for the Project by PaDOT ("the Prime contract"). Sometime
thereafter, ACA and PaDOT entered into the Prime Contract for the
2
~
~
performance of the work on the project. upon information and
belief, a true and correct copy of the contract is in the
possession of Defendants ACA and National Union.
8. Pursuant to the terms of the Prime contract, and as
required by the Public Works contractors' Bond Law of 1967, 8 P.S.
5191 et seq" ACA furnished a payment bond for the protection of
claimants supplying labor and/or materials on the project, and a
perform~nce bond to ensure ACA's performance of their contract
work.
9. On or about June 12, 1992, Defendant ACA as principal,
and Defendant National as surety, in accordance with the
obligations set forth in paragraph 8 above, executed Payment Bond
No. 10-61-59 ("Payment Bond") and Performance Bond No. 10-61-59
("Performance Bond"), trlle and correct copies of which are
attached as Exhibit "A" and incorporated by reference.
10. In or about July 1992, Ree-ta Quay entered into a
subcontract with Defendant ACA to perform certain curb and
sidewalk work on the projec.t ("ACA/Ree-ta Quay Subcontract"), A
true and correct copy of the ACA/Ree-ta Quay Subcontract is
attached as Exhibit "B", and incorporated by reference.
11. The ACA/Ree-ta Quay Subcontract provided for Ree-ta Quay
to complete certain items of work in accordance with the
specifications of the Prime contract.
12. Sometime after June 1992, Defendant Brady entered into a
subcontract with Defendant ACA to perform, among other things,
lighting and signage work on the project. A true and correct copy
3
.
<
of this subcontract is not in the possession of Plaintiff is
believed to be in the possession of Defendants ACA and Brady.
13. Some time in May, 1993, Kee-ta Quay and Brady orally
negotiated a subcontract pursuant to which Kee-ta Quay would
provide concrete light-pole foundations on the project. Kee-ta
Quay informed Brady that its price to perform the work was $210.00
per cubic yard of concrete material placed.
14. subsequently, Brady issued a Purchase Order to Kee-ta
Quay for the pole-foundation contract work (the "Brady P.o.").
Despite Kee-ta Quay's information that they would supply the
concrete at the price of $210.00 per cubic yard, the Brady P.O.
provided for payment on a per unit basis of $210.00 per pole
foundation.
15. On or about May 24, 1993, Kee-ta Quay signed the Brady
P.O. containing the $210.00 per unit placed payment term. A true
and correct copy of this P.O. is attached as Exhibit "C" and
incorporated by reference.
16. Between May 24, 1993, and october 13, 1993, Kee-ta Quay
completed the following items of work in accordance with the
ACA/Kee-ta Quay subcontract as follows:
a. Mobilization at a lump sum cost of $5750.00
b. One type M Inlet, Item No. 0605-2060 at a unit price of
$1,200.00
c. 3985 lf of Plain Cement Concrete Curb, Item #0630-0001,
at a unit price of $13.10/lf for a total amount due of
$51,024.50.
4
~
~
d. 40.00 sy curb cut ramps, Type 1 single, item #0694-0010,
at a unit price of $49.50/sy, for a total due of
$1980.00
e. 7.67 cy Class A cement concrete, item #1001-0010, at a
unit price of $485.00/cy, for a total due of $3719.95
f. 336.80 sy Reinforced cement concrete sidewalk, item
#9676-0001, at a unit price of $30.00/sy, for a total
due of $10,104.00
g. 13.33 sy concrete picnic pads, item #9676-0002, at a per
unit price of $35,OO/Sy, for a total due of $466.55.
17. Between May 24, 1993 and October 13, 1993, Kee-ta Quay
supplied 35 Pole foundations, Type Fe, item #0910-0154 at a per
unit price of $210.00 per unit, for a total amount due of
$7350.00. This work was performed in accordance with the Brady
P.o.
18. PaDOT inspected all of Kee-ta Quay's above referenced
work, approved it, and ultimately processed it for payment to one
of the parties, as more specifically set forth below.
19. On or about October 13, 1993, PaDOT, through no fault of
Kee-ta Quay, held ACA to be in default of the ACA/PaDOT Contract,
At the close of business October 13, 1993, PaDOT shut down the
project until further notice.
20. On or about October 13, 1993, PaDOT advised National
Union that PaOOT had defaulted ACA, and that PaDOT expected
National union to assume its obligations under the performance
bond.
5
.
21. upon information and belief, ACA was paid by PaOOT for
work performed by Kee-ta Quay through October 13, 1993 as followsl
a. 100\ of Kee-ta Quay's mobilization.
b. 616 If of Plain cement work, item 10630-0001.
c, 29 Pole foundations, type FC, item #0910-0154.
d. 4.97 cy Class A Cement concrete, item #1001-0010.
22, On or about Novomber 3, 1993, National Union instructed
PaOOT not to release any payments to ACA for work performed on tho
project without prior written approval of National Union,
23. On or about March 21, 1994, National Union and PaOOT
entered into a written construction contract take-over agreement
("the takeover agreement") whereby National union agreed to honor
its obligations under the performance bond and complete the work
on the project. A true and correct copy of the takeover agreement
is attached hereto as Exhibit "0" and incorporated by reference.
24. Under the terms of the take-over agreement and the
performance bond, National Union was required to fulfill all
contractual obligations of the Prime Contract.
25. On or about May 27, 1994, and June 24, 1994, PaOOT paid
National Union, by way of several checks, for work performed by
Kee-ta Quay under the ACA/Kee-ta Quay subcontract and Brady P.O.
during the period up to October 13, 1993, as follows:
a, One type M Inlet No. 0605-2060.
b. 3279 If plain cement concrete, item #0630-0001.
c. 40 sy curb cut ramps, type 1 single, item #0694-0010.
d. 6.00 Pole foundationa, Type FC, item #0910-0154.
6
.
.
e. 2.70 cy class A cement concrete, item #1001-0010.
t. 336.80 sy reinforced cement sidewalk, item #9676-0001.
g. 13.33 sy concrete picnic pads, item #9676-0002.
26. Despite receiving payment from PaDOT for work performed
by Kee-ta Quay, National Union has refused to pay Kee-ta Quay,
without any legal justification or excuse.
COUNT I -- ADAMS COUNTY ASPHALT COMPANY, INC.
27. Averments 1-26 are incorporated herein by reference.
28. Between May 24, 1993 and October 13, 1993, Kee-ta Quay
supplied $74,244.50 labor and materials to ACA in accordance with
the ACA/Kee-ta Quay Subcontract.
29. Kee-ta Quay has fully performed its work under the ACA
subcontract and is entitled to payment in full.
30. ACA has paid Kee-ta Quay $10,480.05 for work performed
and materials supplied, leaving a balance due and owing of
$63,764,45.
31. ACA's failure to pay Kee-ta Quay in full is a material
breach of contract.
32, Despite repeated demands, ACA has failed and/or refused
to pay Kee-ta Quay.
WHEREFORE, Plaintiff Kee-ta Quay demands judgment against
Defendant ACA for $63,764.45 plus interest, costs, fees,
,
attorney s fees, and such other relief as this Court deems
appropriate.
7
COUNT II -- BRADY CONTRACTINO CO., INC.
33. Averments 1-32 are incorporated herein by reference.
34. Between May 24, 1993 and october 13, 1993, Kee-ta Quay
installed 35 pole foundations in accordance with the Brady P.O"
and is entitled to be paid in full.
35. Brady's failure to pay Kee-ta Quay is a material breach
of contract.
36. Despite repeated demands, Brady has failed and/or
refused to pay Kee-ta Quay all amounts properly due under the law.
WHEREFORE, Plaintiff Kee-ta Quay demands judgment
against Defendant Brady in the amount of $7,350.00 plus interest,
,
costs, fees, attorney s fees, and such relief as this Court deems
appropriate.
COUNT III -- NATIONAL UNION FIRB INSURANCB CO.
BRBACH or CONTRACT
37. The averments of paragraphs 1 through 36 are
incorporated herein by reference.
38. By entering into the take-over agreement, National Union
assumed all contractual obligations of ACA, including the ACA/Kee-
ta Quay subcontract,
39. Despite repeated demands, National Union has refused to
pay Kee-ta Quay for work performed by Kee-ta Quay.
40. By failing to pay Kee-ta Quay, National Union has
breached its assumed contract with Kee-ta Quay.
41. Kee-ta Quay has satisfied all conditions precedent to
bringing this action.
8
~
WHEREFORE, plaintiff Kee-ta Quay demands judgment against
Defendant National Union for $63,764.45 plus interest, costs,
,
fees, attorney s fees, and such other relief as this Court deems
appropriate.
COUNT IV - NATIONAL UNION rIRI INSURANCE CO.
UNJUST BNRICHMENT
42. The averments in paragraphs 1 through 41 are
incorporated herein by reference.
43. Upon information and belief, National Union has been
paid by PaDOT for work performed by Kee-ta Quay in the amount of
$59,274.95, and has refused to pay this to Kee-ta Quay without any
justification or excuse.
44. National Union's receipt of payment from PaDOT for work
performed by Kee-ta Quay is an unjust enrichment at the expense of
Koe-ta Quay.
45. National Union's actions of directing PaDOT not to make
payment to ACA, receiving payment from PaDOT for work performed by
Kee-ta Quay, retaining this payment, and refusing to pay Kee-ta
Quay is against the fundamental principles of justice and good
conscience and is patently unfair.
46. As a direct and proximate result of National Union's
unjust retention of monies paid for work performed by Kee-ta Quay,
Kee-ta Quay has suffered and continues to suffer serious financial
injury.
9
.
WHEREFORE/ Kee-ta Quay demands a judgment in its favor and
against Defendant National Union in the amount of $59/274.95/ plus
costs and attorney/s fees as permitted by law.
COUNT V - NATIONAL UNION 'laB INSURANce CO.
PBa'ORNANCI BOND
47. The averments in paragraphs 1 through 46 are
incorporated herein by reference.
48. Under the terms of the performance bond, National Union
was required to satisfy all contractual obligations of the prime
contract with PaDOT, which included making payment to
subcontractors such as Kee-ta Quay.
49. National Union has failed to pay Kee-ta Quay for work it
performed on the project/ in breach of contract and in violation
of its obligations under the performance bond.
50. Kee-ta Quay is an intended third party beneficiary to
the performance bond.
WHEREFORE, Kee-ta Quay demands a judgment in its favor and
against Defendant National union in the amount of $63,764.45/ plus
costs/ fees and attorney's fees as permitted by law.
COUNT VI - NATIONAL UNION rlae INSURANCE CO.
PAYMENT BOND
51. The averments in paragraphs 1 through 50 are
incorporated herein by reference.
52. Kee-ta Quay performed labor and furnished material in
the prosecution of the work provided in the ACA/Kee-ta Quay
subcontract.
10
~
53. Kee-ta Quay performed labor and furniahed material in
the proaecution of the work provided for in the Brady P.O.
54. Kee-ta Quay has not been paid in full for the labor and
materi~l supplied on either the ACA/Kee-ta Quay aubcontract or the
Brady P.O.
50. Kee-ta Quay haa satisfied all conditions precedent for
entitlement to a claim upon the Payment Bond, thereby entitling it
to payment by National for materials furnished and labor supplied
on the project.
56. National has failed and refuaed, without legal
justification, to honor ita payment obligation to Kee-ta Quay
,
under the terms of the Payment bond, despite Kee-ta Quay s
demands.
WHEREFORE, Kee-ta Quay demanda judgment against National
Union for a aum in exceas of $71,114.45 plus interest, costs and
auch other relief as this court deema appropriate.
COUNT VII - NATIONAL UNION VIRB INSURANCB CO.
BAD VAITH
57. The averments in paragraphs 1 through 56 are
incorporated by reference,
58. National Union acted as an insurer to subcontractor a and
material auppliers providing labor and materiala to the project.
59. Kee-ta Quay is an inaured under the terms of the payment
and performance bonds.
60. National Union'a failure to pay Kee-ta Quay amounts due,
after receiving payment directly from PaDOT for work performed by
11
Ibhlblt A
.
,FORMAMCE BOliO
BOliO MO.
.-6 i-59
(NOW ALl MEN BY THES':: PRESENTS. That WI.
A~lms Co"n'~ Asphalt Co.
or PO. Box L~.\I
Ha"ub"r\l. Pannsylv.nu 17101
u PRINCIPAl. In~ National Union Fire [nsurance Company of Pittsburgh, PA
70 Pine Strllet, New Yvrk, NY l027Q
I .orpor.t~on. IS SURETY. ar. hll~ an~ rirmly bo"n~ "nto tha Common-
wa.lth of P.nnsylvani. in the f"11 an~ j"s. s"m of __two Dillion .ix_
_h"ndr.~ forty-five tho"san~ .i\lht h"ndra~ ninaty an~ 63/IOO__~011Ir.
(, _2.645.490.63 l. Ilw1'ul money of the Un,t.~ States of
Amarica. to be pai~ to thl said Commonwealth of P.nnsylvania. or its
a.silln.. to which plyment WIll and truly to bl ma~l. w. ain~ O"r-
s.lve., our heirs, .;lClc:utars, .dm:i.ni.si:r.tar:s, and successors, jointly
and slv.rally. firmly by thlSe praslnts.
Slelad with our resPI.tive seels and datad this ~day or
June 92
A.D. 19_.
flHE:lEAS. the abovl aound.n PRINCIPAL has "nd,dak.n to
contract wi~h the said C~mmo"w..lth of ?nnsyt....ilnia, :y ~"d
through the S.~r.tary of Transoortation cov.r~n~ ~h. _Qr~
idlntif~.d b.lo~ for a~or~xim.t.ly the sum o~ __t~o mil~lon six
_~undr.d ~or~y-fiv. thous~nd .isht hundr.d n~n.ty ~nd 63/~OO___doll.rs
(,___2.645.a90.63__).
For the improvement of a certain Section of STATE HIGHWAY in CUMBERlAND COUNTY.
PENN TOWIISHIP. Commonwlalth of P.nnsylvania. STATE ROUTE 0041 SECTION R12. Th1S
or.;ect i. locat.~ approximat.ly 5 mil.s .o"th of Carlisl. .n I-al trom Station
4..l-70 (Sellment 0.\70, Offut 0115) to Station 649-50 (Segm.nt 03i4. Of1'...t
233') northboun~. an~ Station 676+00.00 (Se\lm.nt 034S. Oft..t 002') t. Station
7H"00 (Segment 0391. Ott...t 2194) .ou.hboun~. tor .xpen~inll p.rkinll fadlihos
and 1.n9~h.ninQ r.mpS wi~M r.inIQ~c.d cement concrete pav.mlnt, La" depth,
dr.inelll iDP,.ov.mlnt... in.tallation ot Ilui~e reil. .nd i""tallation ot
ligh~nll. .11 within .n oVI,.all proj.ct length of 10,023.79 f.et (1.a9 millS)
a.. indiceta~ on the ~r.winll. approve~ Oe..mbl" 17. 1990.
and
WHEREAS, it we. one the con~iHons of the .ward ot the S.cr.tar,!
of Tran.portation. actinll for an~ on beh.lf ot the Comaonw.alth of
'tnnsylvlni" purSulnt ta whicn .aid contract ~.s undertak.n bv the
P~!NCtPAl thet the.e pr..ants should bl ex.c~t.d. t. bee om. blndinll
upon t~. dati .aid c=rl'tr"'c~ ~s IPprov.d 10,. ~h. Ot-:l'ic. of ~~. !yd91":,
by the Comot,..ll.r.
NO~I, THERE::ORE. fi11 conditions or ~ni..s oaligatian :.s sucn ~M.t if
the above bound.n P~!~C:?AL, I. cantr.c~or, snalL in .Ll r.sP'c~.s
O'/IV92
20
C~S.0920S11.T22'91Q.C042Q71(CONT~AC7)
10ND NO. :'J- 5,
KNOW All MEN IY THESE PRESENTS. Tnat "'".
~4iJmS C.,un t', ..!.sQh.l t Co.
of p O. lo~ l5Jl
H."''''~$bu,." Ptnnsyh'.n:.. l; LO L
~s PRINCIPAL. and ,~at:onal Union Firq :nS~rance (~mo.any of :;), t.~sou r'th t o~
MEN T 1l)~jO
70 Pine Stree~, .~ew 'Iori(, NY :0270
. ~orpor.t~Qn, a~ SURETY, ~r. h.ld and i~rmly bound unto the C~mmon-
~I.lth of PlnnsvL.lni. in t~1 lull and lust sum of __tlooO m111ion s,~_
_hundrld forty-ti," thous.nd 119ht hundrlo ninlty and 651100_ doll.r.
(,_Z.645.&90.6J_I. la..tul monl', of thl Unihd St..u ot ~mldc.,
to b. p.id to the sald C"mmonw..Lth of ~.nnSyLv.nl~, or t~ Issigns,
to ~hich p.yment well .nd t~ylV to b. mid., we bind ours.lv.~, our
heirs, e)(lcutOr-S, Idministr.tars, and successors, j01.ntl'/ end
s.vlr.lly. tirmly by th.s. prl.lnts.
S..lld ..ith our r.sp.eti.1 ...ls and d.tld t~lS t2th d.y ot
June
A.D. 1923-.
WHEREAS, Th. abo," bound.n PR!HC:P~L n.. unelr.aken to
contr.c't with 'tn. silld Commonw.alth or ?ennsyLvan:.a, by ana
~hrQu9h the Secretary of rransportat~on eoverinq ~h. ~or~
tdentifi,d b.law for .QPro~~m~t,ly t~,. sum of ~~o m~~~:on 5~X
_hundred for~y-fiv. ~hous~nd tight hun~r,q nin~ I~d ~;/tJO___~c~~ars
< f_Z.64S.HO. 6J_I.
For the improv.m.nt of . clrtaln S.et!.n of Si~TE HIGHWAY Ln CUMBERLAND COUNTY.
P!WN TOWNSHIP. Common.... 1 .~ of Pennsvb.nu. 5i ~'re ROUTe OOal SECTION R1Z. TIn.
prQ:e~~ is Loca~.d ,por~x~ma~,ly S ml1.5 south of C.r1isl. on r.al from Stat~on
441-70 (Se~m.nt 0570. oH..t Oll~) to 5,a.,.n 649.30 (Se~m.n. 0374. Off...
ZS55l nor,hbound. and St."on 676.00.00 (SI9m.nt OJ3S. Oh'..t OOZ~) to St.h.n
7ZS.00 (S.~m.nt 059L. Ot1..t Z194) .out~bound. f.r e~p.ndin~ .Irk'n~ fac!ll'!e"
and 1.nQth.nin~ ramps wlth reinforced clm.nt cancrlte ~.vem.n~1 10" d.p~h,
d~ain.9' imp~ov.m.nts, instal1ltlon of guide rail, and ins~.11.tion of
li~h~!n9, all ..ithin an ..erall pro;lc. len~th ot IO.OZ3.i9 feet (l.a9 miles)
a. indic.t.d on the dr...in~s approvld C.cemb.r 17. 1990.
.nd
~H!~!AS, i,: .,.,.. onl of the -:ondi 't~Qns of ~h. '\oJ.rod of ~h.
Secretary of Tr.n.por~ation, Ic~~n9 for and on behalf of t~1 Common-
...1th of Plnnsylv~nil, p~rsuant ~o ~nlC~ 5~ld ~ont~ac~ ~.s under~.k.n
~y ~h. P~INCIPAL that th... prlSln1:S 5Moulc by .x'C~t'CI t~ ~.~am.
:i~~in1 ~pon the da~. said cont~act ~5 iQoroved ~or ~h. O~~~c. o~
":h. 3ud'iet, by thl C~rnQ't~Qller.
NOW, i"HE~E:=''J;\E, 7'h. ':.::Indi~:.~n ~~ -:h:..s ocl~;a-::.:n ~.s Sl.;c~ -::-:a": ~1'
the .bov. bounoen pqINC:PAL snall .na wl1~ =r'mp1:~~ or caus' to b.
o '/11/9Z
Z5
C~S.C9Z~'1:.TZZ~910.CJ&ZOil(CONTRACi)
peld ~n fyl ~ all's.. of '"0""''( ...hJ.eh m_v b. d",. by 0: ,rleto'" or
oth,r""15', to ."y LndivlGUilL, f~rm, partnersnlp, '$sQcilt~Qn, or
corPQrat:.on, for ILL m.t.r~als r...,rn1snld or L.bor It..lPD1:'ld or
~.r10rmld ~n tn. pro..cut~Qn ~r the ~ork, wh.~n.r Qr not tn. .aid
m.tlr\ll or lacor entlrld ~ntO .nd be~lme eompon.n~ Plrts of tnl work
or ""Iprov,m.n":: cont'mpL.t.~. .nd fo,' rt"tll of the equi.pmlnt us.o .nd
Slr'/tels ,..ru~e,...d by p",bl:..: I.n:.litils ln, or lon ~Qnnect:.on '~i.th, '!:h.
p,.o..o:vt:.on of SUCh wQrk., thin this obl:.r;.t:.tJn to b. ",olod, o~h.,..,,oj~.s.
to rlmaln ~n fuLL force .na ,ff.~t.
Tho P~INCIPAL Ind SURETY horlby, jointly and loverllly. Igrll
with the obUg.. hlrdn that .ny individu,l. fir",. old.'.rshio,
Issoc~ation or corporltion, which has porformed l.bdr or furnishod
matlrial in the pro'"cut~on of tho wdrk IS providld, .nd Iny public
utility which ha, rlndorld .erv,cI. in, or in connoctlon with. tho
orosocut~on of .uch work. and which has not been Plid in full thore-
for, may IUI in Issumpsit on this P.yment Bond in his, their, or its
dwn namo Ind m,y pros.cuto tho ..mo to finll judglmont for ouch ,um or
sums a. may bo justly dUI him. thlm, or it. Ind have Ixocution thore-
on. Provided. howlvlr. that tho Commonwlalth shall not bo liablo for
tho poymlnt of any costs or Ixpensas of luch .uit,
RI<=ov.,.y by .ny individual, firm, I:'ar'tnersnip, as.soc~ltion or
corporation h.r.~nd.r snaLl 01 subj.c~ to tn. provis~Qns or tne
"Public ~lork.s Contractars' Bond Llw of L967", Ac": No, 5.35, IPl:)roveo::
Doclmber 2Q. 196;. P,L, 469. whi<h Ac~ Ih.ll be ~ncoroo,"..d hlrl~,"
and made I par": h.r,or, .s ~~L~y and <=ompl.t,ly is ~~o~~n its p~~-
visions wert f~lly and at l.n9~n her.~n r.c~t.d.
[~ is further provided ~h.t any alterations wnlC~ may be made in
~h. terms of tn, contrac~ or in ~h. wor~ to be done or Matlrial. to Qe
furnished or labor to b. SUQPLi.d or p.rrormld ~n~.r it or the 9iv~n9
by the Commonw.alth of any .xten.ion ot t~m' for ~n. p.r~orm.n~. or
~he eontr.c~ or any other forb.arln~. on the par~ of .ither the
Commonwoalth or thl P~INCIPAL to tho other. shell not in any w.y
r.l..so ~nl PRINC:?AL .nd tho SURETY or SURETIES or eithor 0" .ny ot
thlm, their heirs, IXI<=utors, administrators, su~;.ssors or assigns
from th.ir l~.bili;y horlundor. notico to tho SURETY or SUREi.ES ot
.ny luch .lteration, Ixt.nsion, or forbear.nee be,:,n-; h.,..by waived,
ltI WliNESS IolHE~!DF, tho said PRIIICIPAL and SUREiY havo dulY
oXoc~tld this Sond undor so.l tho d.y and y.ar f>rst Iboye writtln.
O!d 1/92
24
CMS.D920!II.T2Z!910.c~a2011(C~"TRACTl
,.\.mtrc~n Homt ,.\..StUrine. CO' lny
:'Iallo"al Union FIre Insur2"e. _ Jmpa"y or Plllsburah, Pi.
P""r';:.1 B.J"" omu " III 11M ~"... ,~" YOd..~ y ',t1:7tJ
pt)\\ EI< ')F A rro 1<.' F.'t
(', ~ ~ 'J _ ',' .) '. ::. .~
~'l_.'._ . .,
Thai A.~~r"I....., Horn. .~""'" Compq" . :ow- 't'on nlfl'Onuon, In4 ,~'I\O".Il.'t1IQI't F:n 1"'101""'" CJim"'''y 01 ?111.\ny,\I'. ~I, · ,'I~"I'I"'"'' :.~I'
K. 'OW ALL ,"IE.'! BY THESE PRESE:-'iS:
,s.o.c. w."1. ~.,~.. 1ppD'1I1
...,\I."~H! I. ~lil.:.'cll Hurl R. JD~D. ~,li':"..:e! O'H~i1.ll., M.utilll. Purc.:l!. ~.tlc::~c! T:~.N~C: Di P'IiJdc!ph,~. P,.,,,
I" 1,...& ....~ ".(~ ^Iwnr,(a,...",l'an. "".. hfi& t~""'r' 10 uU'~~. 04 III !)cull bolldA. "'444r'\.1&1.P, ~~wncu 'n~ Olft.r (onll'1l;U Q( ,"".r.:T',,11l'f Ir,~
o1Olltt::~, _.1 U'IC 1U1"" lJWrwd. ..\MIl '" lhIlOUW oj ,u II","",UL &1'14 t.a OI,ul<<nt ~ ctlmpany II\CAC"
IN \\ l~'"ESS \VHER.EOF. "",.n"'. II."., ,....'''"" C>1lIp'.".. ,'1'"0." V.,O. f)", I.,.,.,... C>mo..y o( rullO''''', P,. ,." ..""."
Il\n. ~~~..,:.I
1921
Pre$ILie:u
rr/\ 7"':' .; ~ '-rAt YOP..'
eOl '7~ vF ......tr.~. "fO::P...X;1o;
~ ::--~(fk:~cL.
--- I U
en It'll. ~ ..:.;....1 ';.... "!-.... ,~#'.'
!)c(O."T ~.: .:J,mc the 11)(7'''' umlj:O:: Ol~...'"Cr ot ,~~~~I\ :i.:ll'r.<
oW",..,':or :"'''"p.lIW anll ...1I0IUJ l'.'\J.or. r:rt 1,,,...;11\.;'1: c.:~~n~
~t ~,;:;: ,:to PI..:O me ?C~Jllv 1ll~'I'I ;., )c Ir.: '41,:~~1l:...J1 .",
~air:~ :::.::",,'=>cO:: ~c:",::n. .nd KUo-V:':;-C:: lr.al W C::':-.lc':1 ..'c
(orr;: '. ,'.Jt;~mC,'1 In~ IlrOJ,O:I.l Il'Ic I&I~ oi ,..0..: :O;:f'?Oncn.:,""
Inert:': ~ ..tnonrv of ~IJ ~lr..."'C.
~H. . ~C:;:',!O
....,., ~'Jcjj(. ~I.'f ~. ........ ! ="
I'to. O'.NC40!::'~J.
0...11".0 ,,, 'N.,ICO....II... ~I"
rtlml bOil.. !,.. 11. L.......:~
CERTIFlC..\.TE
!!.,,,:-
~.::'"':~.'"..;r.. l':';~':~:'\ ,j',e S.....~ 01 _,1":;:'::1:' ,\r.'tll:':,,":J1'l Hom. ..usUl'2nn C;m";-lr.:t and .';.ltlO"~1 t..'.~lon Fire 1""",/"30(: CJm1=.n~ Q( ,':I~~U;
on "'l~ : 1':'6.
'R.!Z.S~ ....,:.~, ~:'.~I :nt C:~m~n::1 ot lIa :l....oN. :l'l.. ?:U"';:~I,~' J"Y '-iu ~:o:&IC:erH bC,and hcrt:Ov 1.10 'Ylnon:.'J:~ '''!XIlnl ,\nom.:It"nor3(::0 rc:~mc:",:
(or ~;~.: " . C:1.~"')( ;:\1: ..:...m.:........:u c.:::.': ~.:,...~ .~.~.;I:"::'t.;~;:. :'l::~ncu ,and och.r ('Qntr:lCU o{ Ln"::mmt~ ~1...I.nlln'P .)1)1i~IOry In tn. ;11'"U1 ::l~~:
10 )11::," . 'l,,,,:a~ tr.("..:~r;:cH'2t: s..::l';: :,'::' (.""'711':" 1:\ :j'.: ::,:,.~,,::,:n ~(ILS IIUWty bWlncu;
'W": :,:' 'Z::J. 1"~1 In, 1l~"IUru Ir.~ 1:1:t~:U)n:. vf ...':,",: .;::...::-:: Jn4 tn, ~I oJ ~. CDmpany rn.:t I). am.ICG to I"Y ''Ie:' Potur ot Allom,,! or :0 any ':G:
rtl.1II..; '::"110 I)'l' (;..:Ill'ftllc. In..,! It" I..",. ~~.~~,. J,1:,'r:lC~ or :'"11'11;11' )c.a""1 ,~a (IQllltII. "cn"~ru or!Ullmllc ....11 willi' ....Iid and ')1"clnl'"IC:
CJm:" ~:. ".:n. sa .cru.toJ "'tlllU?C-' :0 II'I!, I)~n;. ',;'.'::~':'L.;:.. ,':::~a:.aM' Qr oln,: Cl)lIlnn at ~cS.mnl"'" ",r "I.T\t1;\1 oJoliplOI"! In In. 11I1\1" tn.:1of;
'R!':.!': ::' '!:). t:u: ;,":' 11.":\ .""Qm.~...n,i"h': ':c~.".:::~ I I ",::t:.s"11 .'I'"J"nuon llUl the ron;C1ltl ;'U.oI..IIQn, ol:,i ~e :n cat'.., ,'TUV Inle:": I" .wen :MlIl(~t
11.11. ',.::': ;;'. U11~ l1':U: :0 l:'c ,'\01 :.uc: ::U" .....: ~;: Ji,' .:I:~ J~.' :iU::'tt,iI'~'" Jue:'! AUl:~::/.'n,;r1.."t.'
t. t:~~..':' .1. i' ....;:.. s.:,:~:,:,:,",. <Jl ,r."...-~,' ,l';.:"~ ......., ...';: '':';.~::,:r,', ~r.': :'(".l;,~,~~ll.','uon r:~t. :.~::,j.r:.:'.;: ',:,:,~~:"'" :;;' 1':I~Ut'Jl'I. P1. ~a ~1n:::I~ ':~1I'. :~
':"0 -: ;;' ,,",eL,: ':'::j:'\Jr2UOnJ. m'': :111 ?:'''~~ :,;;.;:..~.C', ,:01"':; :ur:ll.:a~l ':O,(~..:O, He .;".
~oJf':1i ~ o' ;-:~.t ," ~:. '.,,':.
,"O~~.
:""...!'t,,'''. ""..
.. ~.: .. ~ ,
, ". ,,,,!, t' :~: " :'-.,: '..":'. I,~': uTcC"'..
I;\, \\ : T:\ 1::5::; \\'H E R'::: Cr' : ",' , '..".' .. ".', .",. ,,': .",.., ... ,,,~,...,I. ,<:, " .,,~ ;":",~:",,
,,~~ .1:', ," June
",
.,
~ ~ f,A.. . /( w..J.
~:iZ;:bC:h ,\f, Tuck. 5c::,o:,.,
(4) Schedule of the .....ork
1 TIOt , ~lJJInllJ~ P~B.s!.!1?.t..!..O.n ~ Price Amount
0630-001 3564 1.1' I'lllln Cement Concrete Curb 13.10 46,688.40
0694-0010 40 SY Curb Cut RIImpK, Type I Single 49.50 1,980.00
1001-0010 12 CY CIIlK" ^ Cement Concrete 485.00 5,820.00
9676-0001 624 SY Reinforced Cement Concrete 30.00 18,720.00
Sidewalk, Special
9000..0000 .... 96 LP Screening Pence 45.00 4,320.00
0608-0001 L.a. HobllIzat Ion 5,750.00 5,750.00
Totall ... . 83,278.40
1\0 ~51 6-.<... 01\ ~G~ L II.
.jtb ptA OUcJtL- -I04kO 01')
no ()'\.PT. i no ~bb.~.
.3/" I ~.L ~~
- 3 .
.'
(u) SI'"dn 1 CUI\ll1llollB to Schedule of Work
(If llone, BO dcoigllRle)
1. SUnCON'1'RAC'I'OI\ '1'0 l'I';I\I'OI\M WlIllK IN M:ClIllIJANCI'; WI'1'1I '1'111'; l'IIO,lliC'1' Hl'liCU'ICA'1'IONS ANIl CUNTRAC'f
I>RAWINGS.
2. AI.l, MNl'lIRI AI.S SIII'I'l.lIm ANII/OIt IISlm IIY 'l'IIE SIIIICON'I'IIM:'I'OIl SIIM,I, Mlili'l' 11Ii1IUlIlIiM~;N'1'S ANIl
SPECIFlCA'1l0NS FOil 'l'IIIS I'IIO,II':C'I' MHl ALL MA'lN\lAI. SlIlI'MliNTH TO Ill', ACCOMI'hNlI\IJ BY C~;R'I'~
IFICATlON.
3. SUBCON'rRAC'1'OR IS RliSI'ONSI8l,1I ~oOR AIlMINS'rIlNl'l Vii l'IIOClmlll\~;S ANll RlilllllRliMENTS ASSOC1ATEI>
WITtl SUBCONTRACTf,1l SClIf,IlUI.E OF WORK.
4. SUBCONTRAc'rOR IS 11F:llUlREI> '1'0 FUIUHSlI liVlIJliNCE tnO INSIIIIANC~: AS REllUlIlIiIJ 8Y SPEClFlCA'flONS
ANI>/OR CONTRAC'l'OR.
5. QUANTlTlES OF WURK PIiRFOI\MIiII ARE TO liE VliR1FlEU IIY 'l'IlE CUNTRAC'WIl.
6. SUBCUNTRAC'I'OI\ 1l0llNI> '1'0 I'REVAlJ.lNll WAGE SClIliIlULli (A'I''I'AClllill). C~;Rnn~:1l I'AYROI.I.S MUST BE
SUBMITTED TO CONTRACTOR IN A TiME1,Y HANN~;R.
/. SUBCONTRACTOR SIIAI.I. 1m RESPONSlllJ,E FOR ANY I'liNAI:l'n:s ASSESS liD AGAINST CUNTRAc'rOR llUE TO
LACK OF PERFORMANCE BY SUB CONTRACTOR.
8. SUBCONTRACTOR TO COMMliNCli WORK WITlIIN 1.6 1I0URS m' NonCE FROM CONTRACTOR ANll PRUCEEll
WITH ALL DILIGENCE.
9. CONTRACTOR RESliRYfo.S 'filE R1GlIT TO ISSUE A JUlNT I'AYMliNT CIIF.CK TU SUIl-CUN'rllAGTOR ANll/OR
MATERIAL SUPPLIERS.
10. SUB-CONTRAC'I'\lI\ REl/UIREIJ TU lIAVE qUAI,IFlFI> ANI> I'F.NNI>OT M'PROYEI> SUI'EIlVISOR ON PROJECT
AT ALL TiMES.
II. SUB-CONTRACTOR REqUIREIJ TO lIAVE: ALL APPLlCAIlLE SALliS TAX INCLIIDW IN PRICES.
3. The Subcontractor, by exec\lting this Subcontract,
representB and ....arrants to the Contrar.:tor that it is qualified,
capable. experienced and available to perronn t.he Schedule of
the Work as set forth in paragraph 2 of this Subcontract under
the tenllS and conditions of the Principnl Contract and this
Subcontract, in the quantity lIntl for the amount therein set forth,
And ....ithin the tilae as is, during the execution of the Principal
Contract, designated. The Subconlloactor does further represent
to the Contractor that where I'requalification to perfonn the work
in this contract is required by the Owner and is a condition pre-
- 4 -
cedent to conlractlng al' subcontractLng to pl!rfOllQ oUl'h work,
that the Subcontractor io duly so Pll!'jllllliried and will remain
prequalified for ouch work fOf the duration of thia Subcontract,
including any addition 01' exlension thereof.
4, PROGRESS OF WORK - The Subcontractor will promptly
begin said work 00 ooon as he is notified by the Contractor and
wi 11 carry forward and complete &/lid work liS rapidly as the
progreSl of the work of the Contractor will permit. The Subcon-
tractor will furnish oaid materials, labor and equipment, prose-
cute said work with diligenc~, without delay, and will not in any
manner delay or othendse interfere with the work of the Contractor
or other Subcontractors. Should the said Contractor conclud~ that
a Subcontrllctor is unjustly and without valid reason delaying said
...'ork, or the SubcontrActor has performed said work in a deficient
or improper manner, he sholl so notify said Subconlrsctor by cert~.
fied or registered mail, or by telegrrnu, setting forth the complaint
in detail, and the Subcontractor will have two (2) days from the re'
ceipt of said mailed complaint or telegrlUll to COl"rect the cO::lpleint,
In the event Subcontractor falls to comply with said notice and to
correct the complaint, said Contractor shall havfl the legal right
to take possession of all equipment, machinery and suppliu in and
upon the contract site, including, but not limited to, construction
machinery, equipment and supplies of the Subcontractor and to us.
the same to correct the complaint or to have the complaint corrected
by sublet ting this work to others, and said construction machinery
and equipment as needed to be used to correct uid work defichnciu
shall be used by the Contractor or any subcontractor designated by
the Contractor to 50 use the SlUIle, The Contractor shall chari' the
expense of the correcting work against said Subcontractor and de-
duct the same from the contract, and should the amount of payments
due on said contract be insufficient, to collect the said deficiency
from the Subcontractor by legal process and/or .urety company, or
its agents, by request or legal process. Upon correction of uid
work, or the deficiency, the machinery and f'quipment of the Subcon-
tractor shall be delivered to Subcontractor, upon rotice, at the COD'
tract site. Subcontractor shall supply skilled and experienced
emp loyees ready And abl e to work in hal-mony wi th the Cont ractor and
with other prime contractors and subcontractors and/or their ~-
ployees, acceptable to the Contractor, the Owner and the Owner'.
representatives.
In performing the foregoing work the Subcontractor
shAll furnish all lAbor, equipment, materials, supplies and every-
thing neceSSAry or incidental thereto or in connection with the
performance by it of its work as required and called for under the
provisions of the Principal Contract. It is understood and agreed
- 5 -
by t he pan ie9 hl!l"eto that the q\lllllt ity of ....ork 115 6hQ'WTl above
lire IIpproximate ollly And are B\lbject lo incre/l5e or decrl!ose
and it ia further undl'rlllOod that all quantities oC work whethl!r
ine reaBed or decrellscd are to be performed at the unit price
above quoted and agreed upon and l hat. the Subcontractor, in all
events shall be entitled to be pu1d for that number of unit.
(l.nallY determined upon by the O....ner, if the Owner'. determine-
t ion is not acceptable to the Subcont ractor, the Contractor shall
appeal such detennination to the extent such il feuible and per-
millsable at the Subcontractor'. ....ritten loequest to do 10 and at
the Subcontractor'. cost and ('xpense.
5. TlME ALLOWED FOR CONSTRUCTION OF PROJECT - It h
expressly understood and agreed by and bet....een the parties hereto
that time is and shall be considered the essence oC the contract
on the part oC said Subcontractor nnd should the 68id S\;bcontractor
Cai 1 to begin, continue and complete the ....ork as herein provided
and should the Contractor BuCCer or pennit said Subcontractor to
oc c upy lDore tilDe than requi red under this agreement, in that event
the said Subcontractor hereby covenants and agrees to indemnify and
save harmless the said Contractor from any loss or damage which IDay
be compelled to lDake good to the O\.mer, for or on account of delay
in the completion thereof, insofar as said delay was caused by the
said Subcontractor. If the Subcontractor claims he is delayed 1n
the prosecution of his work through no fault of his wn and that
8uch delay is costly to him, he shall be entitled only to luch com-
pensation for luch delay as is allowed and paid for luch by the
Ovner to the Contractor to the extent such is attributable to the
Subcontractor's work. Any such claim by the Subcontractor Ihall
be submitted to the Contractor in writing, containing all pertinent
details, by the Subcontractor within ten (0) days of the alleged
del ay. Fai lure of the Subcontractor to give such written notic.
..,i thin ten (0) days shall teIlDinate any right of the Subcontractor
to !Dake luch claim to the Contractor or the Owner.
6. CONDEMNATION OF WORK - The Subcont ractor shall provide
sufficient, safe and proper Cacilities at all timel for tht! inspec-
tion of the \lork by the Project Engineer, Architect and the Conlractor
or their authorized representative, for the inspection of the Sub-
contractor's work and materials used or to be used. He shall, at
once, remove all lDaterials, and take down and rebuild all portions of
the work condemned by the Project Engineer, the Architect and the
Contractor or their representative, upon receiving notice in writing
of such condemnation.
7. EXTRA WORK - All ext ra work to be performed by the
Subconlracwr IDust be condensed to writing anc\ A rate of pay agreed
upon before such work 1a undertaken. Said extra work agreementa
must be signed by representativea of the Contractor and Subcontractor
and will be .ubject to the teIlDs and conditiona of this Subcontract
Agreement.
- 6 -
.'
8. IIH:l-INU'ICA'1'lON OF COIHRACTOR-I'An:N'rS AND I'ATLNT
RIGHTS - The Subcontractor hereb, covenanta nnd agree a to
IndemnlCy and oave harmle88 the Contrlll.:tor frOlll IIn, and all
<' 1 aims or Buits CrolQ infrlngementB of Plltent. or violation of
patent d&hts, including all costl and expen6eB to which the
Contl"/l\;tor 11\11)' 00 put in deCendlnB an)' action that may arise through
the work of the Subcontractor.
9. INDEMNIFICATION OF CON'fRACTOR AND OWNER FROM ALL
LIABILITY - The Subcontractor shall have charfe of the entire
\Jork until completion and acceptance, and sha 1 alone be llable
for and Ihall pay all losl or damage cauoed by him or by hia ser-
vants, agents or employees to property, buildings or adjacent work
and for any accident to persons that may occur during tile per-
formance of the work covered by this Subcontract or at any time
thereafter as a cOllsequence of the performance of said work. The
Subcontractor shill 1 ObSl?l"Ve all state find municipality laws, ordi-
nances and reeulations and shall delend and save hormles. the Con-
tractor Bnd the Owner from all suits and claims whlltsoever for 1051
of life or injury occuloring to e:nployees of the Subcontractor who
perform such work. The Subcontractor agrees to fully idellDllfy
protect Bnd save h.1l"lllless the Contractor and the Owner from a11 li-
ability froiD all claims, loss, damage, suits and actions of every
kind and from all costs and expenses in connection with .uch claw,
suits and actions due to injuries to persons or damage to property
\Jhether resulting from accident, negligence or any other cause what-
soever occuring during the performance of the work covered by this
Subcontract or at any time thereafter as a consequence of the per-
formance of the same or \Jhich may at any time occur or result frCl':l
or be caused by such work and if there are any such claims unuttled
\Jhen the work herein provided for is completed, final settlement by
the Contractor and Subcontrac~or shall be deferred until Buch cl.Uns
are adjusted or suitable spec~al indemnity acceptable to the Con-
tractor is provided by the ~~tcontractor.
10. INSURANCE REQUIREMENTS - The Subcont ractor shall take
ou t and pay for I
(a) Workmen's Compensation and Employer', Liability In-
surance in accordance with the laws of the State of Pennsylvania
and the Federal Statutes.
(b) Contractor's Public Liability and Property Damage In-
:5urance. Said policy of insurance will be written to provide for
the following limits $1,000,000.00 dollars for all
da::la&es srising out of bodily injuries to or death of one person,
and subject to that limit for each person, a total of $1,000.000.00
dollars for all damages arising out of bodily injuries to or deatb
- 7 -
of two or more persons in anyone eccident, end regular con-
trectors property dMlnge liebility insurance providing for e
limit of not loSB then $1,000,000.00 doll ere for all
damages arising out of injury to or destruction of property in
anyone accident and 8ubject to that limit per eccident, a total
(or aggregete) limit of $1,000,000.00 dollars
for all damages arising out of injury to or destruction of
property during the policy period. This policy of insurance ahall
be endorsed as followsr to cover the explosives and collapse
hazards and injury to or destruction of wires, conduits, pipes,
mains, sewers, or other similar property, or any apparatuses in
connection therewith, below the surface of the ground, as such
injury or destruction is caused by and occurs during the use of
mechanical equipment for the pUt.pose of excsvating or drillin~ or
injury to or destruction of property at any time resulting there-
from.
(c) Public Liability and Property Damage Insurance
covering the operation of any motor vehicle used by or for the
account of the Subcontractor in connection with the work to be
performed under this Subcontract. Said policy of insurance will
be written to provide for the following minimum limitsr Bodily
Injury Liability $1,000,000.00 dollars each person
and $1,000,000.00 dollars each accident, P:o:opert1
Damage Liabill ty $1,000,000.00 dollars each accident.
The Subcontractor shall furnish to the Contractor three
(3) copies of the policy and three (3) certificates of insurance
for the following of the above mentioned policies.
(a) Workmen's Compensation.
(b) Contractors Public Liability and Property Damage
Liability Insurance.
(c) Public Liability and Property Damage Insurance
covering the operation of motor vehicles.
All of the above mentioned policies of insurance shall
said policies shall not be changed or cancelled until
written notice has been given to the Contractor.
11. TAXES - The Subcontractor shall pay all the Pennsyl-
vania Sales and Use Taxes on all taxable items, and all Federal
Old Age Benefit Taxes, Federal Unemployment Compensation Insurance
on all labor furnished under this contract, as required by the
COllllDonwealth of Pennsylvania and the Uni ted States Government, as
well as any other taxes, Federal, State or Local, applicable to or
occasioned by the Subcontractor's performance of this contract or
employment of persons hereunder.
provide that
15 day.
- 8 -
"
12. COIHRACT COHI'LIAtICE - Tho Subcont rector shall
Abide I>y all 1'(.fHl'llCed or i~('ntifl('d pdmo contract provision.
for rederal /lid projects, statutes, rules, regulatlolls or pro-
cedures SppliCAble thereto liS well AS by all such prime contrsct
provisions c/ll11.ng for observance of ccrtll1n Penn8ylvonia or
loc/ll st/ltutes, rules, rq:ulRtions or procedurce whether or not
specifically referred to In this subcontract and whether or not
conna or certificlltes are supplied to the Subcontractor to achieve
such compli/lnce I without lilOltat ion 8uch lIIotters include Federal
and/or Stste non-discrimin/ltion provisiona, re-negotiation pro-
visions, IDlnilDUlD wage provision., /lnti kick-back provillon'i pa,
day prov18ions dally and weekly overtime proviliona, payro 1 de-
duction provisions, payroll clnuiflcation IInd apprentice provhionl.
Payments under this subcontract Dlay be withheld at any time to the
extent necessary to affect compliance with thh ':>1' any other article
of thif:l subcontract. Noreover, the Subcontractors shllll maintain
a record of the total cost of all InAterlals and supplies purchased
for and incorpolooted in the work and also the quantities of those
5?eci fic materials and supplies and In the units ahown. Upon COal-
p let ion of the subcontract, this record. together with the final
labor sUIJDDary shall be submitted to tht. State District Engineer, for
a 11 State and Federally assisted projects, for the project on the
State's appropriate form for such or on a form 8upplied by the prl.me
contractor in accordance with instl"Uctions thereon. The quantities
for the ll.sted items shall be reported separately for roadway and
for structures over twenty feet long as measured along the entire
center line of the roadway.
13. ASSIGNMENT OF SUBCONTRACT - None of the rights under
this Subcontract, including assignment of funds, .hall be assigned
by the Subcontractor without prior written consent from the Con-
tractor. Any attempt to assign the Subcontract will operate as an
ins tant forfeiture &nd repudiation thereof by the Subcontractor
and the rights of the parties .hall be determined in the same manner
as though the Subcontractor had at the time of luch attempted IISsign-
ment faUed and refused to continue to perform the contract.
14. EXTENSION OF TIME - No allowance of time will be made
the Subcontractor for delay in preparing his drawings or, in secur-
i ng approva 1 of the Owner IInd the Cont ractor' 8 engineers wflen such
drawings are not properly prepared for approval of the o...-ner and the
Contractor's engineers.
~xtl'nsion of time to be granted to the Subcontractor
6ame only 85 is Branted to the Contractor by the Ovner,
in accordance with the Specifications in the Principal
will be the
and will be
Contract,
- 9 -
15. CONTRACT AND LABOR AND MATERIAL IlONDS - The
Subcontractor further agrees that he ....ill simultaneously, with
the execution of this agreement, provide the Contractor, if
requested, with a Contract Bond, covering satisfactory' performance
of the ....ork contracted, the penal sum of 100% of the amount of
the Contract, and an "Additional Bond for Labor and Materials,"
coverf,ng the prompt payment in full for utility services rendered
to 8ub-Subcontractors and for ell materials furnished, rental
for equipment used, and/or labor supplied or performed, in the
prosecution of the work, and a180 in the penal sum of 100% of the
amount of the contract. Both bonds must also be executed by .
Corporate Surety satisfactory to the Contractor.
Payments under this subcontract may be ....ithheld at any time
dllring the life of same for non-compliance with the above bonding
requirements.
16. TERMS OF PA~;NT - The Contractor agrees to pay the
Subcontractor his portion of all payments received by the Contractor
from the Owner within .even (1) days after receipt thereof. It is
also understood and agreed that all estimates shall include the
materials on the site if so permitted by the Owner as a part of the
current estimates.
It is further understood and agreed that no payment on
account shall operate as an approval of said work or materials, or
any part thereof.
17. APPROVAL OF SUBCONTRACT - It is understood and ageed
by the parties hereto that this agreement is subject to the ~p-
proval of same by the Owner.
It is also understood and agreed that this agreement is
8ubject to the principal Contract in its entirety, entered into
by the Contractor and the Owner, relating to this particular pro-
ject.
18. CONTRACTOR'S RIGHTS TO WITHHOLD PAYMENTS-
IT IS UNDERSTOOD AND AGREED THAT THE SUBCONTRAC'rOR
SHALL PAY -
(a) All employees unconditionally and not less
often than once a week.
(b) For all transportation and utility services
not later than the 10th day of the calendar month follo....ing that
in which said services are rendered.
- 10 -
.'
(c) ror all materials, toole, rentale, and
ot her expendable eq\llpt.~ent not lAter than the 10th day
of the calendlll' month follo....1ng thllt in which uid materiah,
tooh, rentals and equipment are delivered at the Blte of
the project.
A Contractor shall have the right to withhold pa)'Ulentl
from the Subcontractor, in addition to retain percent agel a.
ma)' be provided in the Principal Contract, of luch a::Iountl II
ma)' be necessary both to imure compliance with all of the terma
of this Contract by S\lbcontractor, for work perfol1lled by the
Contractor or other subcontractors in accordance ",ith paragraph
4 of this Contract, and as necessary to pay all just claims Cor
labor and services, rental and materials furn1shed in and about
said work, which is the obligation of the Subcontractor to pay.
The Contractor shall have the right, acting as agent of the Sub-
contractor, to apply such retained llIIlount to the paycentll of such
just claims and for ....ork required to be perfomed.
19. SUBCONTRACTOR'S RELEASE TO CONTRACTOR. Upon receipt
of final payment, the Subcontractor does hereby agree to give the
Contractor a duly signed release relieving the Contractor frCQ
Any I iability in regard to monies due under this Subcontract, and
the Subcontractor will certify that all of his obli<iona fo'!:
services, materials, equipment rental, tooh, etc., incurred on
this Subcontract have been paid and that if an7 liability Ihould
occur on his behalf, then the Subcontractor will indemnify the
Contractor.
20. APPROVAL OF QUANTITIES - Prior to the acceptance of
final quantities, the Contractor shall give five (~) days notice
of such quantities fo the Subcontractor for his approval.
21. PRIOR NEGOTIATIONS AND AGREEMENTS - All negotiation.
lInd agreements prior to the date of this agree::lent are merged herein.
This Subcontract has been read and is fully understood by the Sub-
contractor.
The
successors,
to the full
Cont ractor Bnd the Subcontractor for thenselves. their
executors, administrators and assigns, hereby agree
per f ormance 0 f the covenants of this agreement.
22. TERMINATION ~ If prir:Je contractor' 5 work is tel'11lina-
ted or abandoned. if Subcontractor cannot work in harmony with
other Contractors, Subcontractors or their employees, is in breach
- 11 -
\
..
.
WHEREAS, the SURETY issued its performance and payment
bonds, each in the amount of $2,645,890.63 and dated June 12,
1992, guarant.eing, in accordance with the terms thereof, the
faithful performance by ACA of the Contract I and,
WHEREAS, by letter dated September 8, 1993, from the
District Engineer, Engineering District 8-0. OBLIGEE advi.ed ACA
of OBLIGEE's intent to declare ACA in default of the Contractl
and.
WHEREAS, by letter dated October 13. 1993, a true and
~orrect copy of which is attached hereto as Exhibit "A", the
OBLIGEE declared ACA in default of the Contract and called upon
the SURETY to discharge its bond obligationsl and.
WHEREAS, by letter dated October 13, 1993. a true and
correct copy of which is attached hereto as Exhibit "B", the
OBLIGEE called upon the SURETY to remedy the default and complete
or procure the completion of the Contract ("Completion Work") in
accordance wi th the contract documents and SURETY has agreed with
the OBLIGEE to perform its obligations under the bonds subject to
certain terms, conditions and/or requirements to which the
parties hereto have agreed and which terms, conditions and/or
requirementu are hereinafter set forth I and.
. .
2
WHEREAS, the Replacement Contractor has entered or will
enter, into a separate agreement Is) with the SURETY under which
Replacement Contractor has agreed or will agree to perform the
,
Completion Work under the Contract, in strict accordance with the
terms and conditions of the Contract.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, it is understood and agreed as
follows:
1. The foregoing recitals are incorporated herein bv
reference as if ~et forth at length.
2. SURETY hereby agrees to take over Completion work and
the OBLIGEE agrees to accept Robert A. Kinsley, Inc., as the
Replacement Contractor to perform said Completion Work.
3. Upon execution of the Replacement Contractor's
agreement, and prior to the physical start of Completion Work, a
preconstruction conference ("Conference") shall be held with
representatives of ~Jle Surety, Replacement Contractor and
OBLIGEE'S Engineering District 8-0. At the Conference a schedule
together with a plan to complete said Completion Work no later
than April 30, 1994, having delays resuLting from andlor
consideration of pre-existing site condit.ions, e.q. frozen andlor
icy ground due to previous winter storms andlor temperatures
. .
4
during the winter of '93-'94, current weather conditions
("current" measuring during the period in 1994 in which site work
is being or was intended to be done by Surety), or agreement
between OBLIGEE and SURETY shall be presented by the SURETY for
the purposes of establishing mutual agreement on the duration of
Comp!etion Work.
4. The Replacement Contractor will commence work no later
than seven (7) calendar days after the Conference and shall
complete the Completion Wcrk within the time as set forth in the
schedule as approved at the Conference or as amended by
subsequent written agree"e,t between the OBLIGEE and the SURETY.
S. The Agreement will be administered by the OBLIGEE, and
the OBLIGEE will deal directly with the SURETY or SURETY's
-
designated representative in administering the Agreement. .'he
SURETY hereby authorizes the Replacement Contractor as the
SURETY's designated representative to deal directly with the
OBLIGEE in discussing and negotiating only such matters which
have no effect upon the value and/or scope of Completion Work
and/or upon the time in which Completion Work is to be performed.
6. The OBLIGEE shall pay directly to the SURETY the amounts
and unit prices for work completed in accordance with the
Agreement. This sum is to be paid in the manner provided by the
Contract, and nothing herein shall limit or waive SURETY's right
. ,
5
for additional compensation, if provided for under the Contract,
Agreement or related documents.
7. The parties hereto hereby acknowledge and agree that, by
this Agreement and/or by operation of law, equity or both, SURETY
has succeeded to all the rights of ACA to payment and to all the
rights of the OBLIGEE, inclUding, but not limited to, the
OBLIGEE's right to set-off funds for any loss sustained on the
Contract and/or the Agreement against any funds that may be due
ACA on any other contract between OBLIGEE and ACA, subject to the
provisions of Paragraph 11.
8. It is understood and agreed that nothing in this
Agreement shall alter, affect, or vary the rights and obligations
of the parties under the terms of the original Contract between
the OBLIGEE and ACA and the performance ann paymerl_ bonds issued
thereunder by SURETY except as provided herein: and OBLIGr.E
agrees that SURETY's total liability under this Agreement, the
Contract, and the conditions of the foregoing performance and
payment bonds issued on behalf of ACA shall not exceed the penal
amount of the performance bond, and all payments made and to be
made by SURETY are deemed made pursuant to the SURETY's
obligation under said bonds and will be charged against the penal
amount of said performance bond.
9. The OBLIGEE and the SURETY acknowledge that nothing
herein shall extend, limit, alter, amend or waive either party's
, ,
6
rights, defenses or obligations as provided for under the
Contract documents or the bonds except as expressly provided
otherwise in this Agreement.
10. The obligation of the SURETY to third parties as the
result of the issuance of its payment bond for and on behalf of
ACA shall not be affected by this Agreement.
11. The SURETY acknowledges the actual assessment of
liquidated damages by the OBLIGEE prior to date of declaration of
default, but the SURETY fully reserves all rights to request any
appropriate extensions of time and/or to ((ntest the validity of
any assessment of liquidated damages. ~he SURETY does not waive,
prejudice or in any way adversely affect any claim or defense of
any kind or nature that it, as surety or as contractor, might
have against the OBLIGEE. The OBL:GEE wi.l not release any
Contract funds to ACA without written consent of the SURETY.
12. The OBLIGEE represents that portions of work completed
by ACA may not have met the requirements of the Specifications,
drawinqs and Contract and that the SURETY will be held
responsible for the cost Is) associated with the correction of
meetinq said requirements that may have been paid for by OBLIGEE
to ACA, inCluding but not limited to, incidental work.
. .
7
13. The parties hereto do not intend, by any provision
hereof, to create any third party beneficiary rights upon anyone
not a pKrty hereto, nor to confer any benefit upon or enforceable
rights hereunder or otherwise upon anyone other than the parties
hereto, any such intent or construction being expressly denied.
For example, the parties acknowledge that nothing contained
herein shall be deemed to extend or increase the rights of any
claimant as defined in the bonds, or either of them.
14. The SURETY expressly reserves all prior rights,
equitable liens and rights to subrogation that would be the
OBLIGEE's, the Laborers', or Materialmen's or Adam. County
Asphalt's under the Contract or at law or equity, as well as its
own rights dating back to the execution of the performance and
payment bonds, including but not limited to those rights and
remedies that may accrue during ,',e completion of the Contract.
No waiver of such rights is agreed to or implied or intended
regardless of any provisions of this Construction Contract
Takeover Agreement to the contrary.
15. The OBLIGEE expressly reser'ves all prior rights,
equitable liens and rights to subrogation that would be the
SURETY's, the Laborers', or Materialmen's or Adams County
Asphalt's under the Contract or at law or equity, as well as its
own rights dating back to the execution of the performance and
payment bonds, including but not limited to those rights and
remedies that may accrue durinq the completion of the
, ,
8
G
o
.
1t~~~(])~ O[jJ~~
C}-j U
~~~~ 41
Fo. 12151375.9501
Trllfflc Ele~-trieel & Ughtlng Co., Ine, .
22300 North Fifth Slreel
Reading, PD. 19605
March 30, 1994
RECEIVED
MAR 3 1 1994
Cey.;STR'~'C':'I~ ~II r
OlSTfiICT 1'-0
H"lJll5.ilUAG. "A
Commonwealth of pennsylvania
Department ot Transportation
Engineering District 8-0
2140 Herr street
Harrisburg, PA 17103-1699
Attn: Barry G. Hottman, P.E.
District Engineer
t""'rI A. ,'L. ":J A~P( '-'" A l\
RE: CUmberland county
S.R. 0074-005 and S.R. 0174-004
Contract No. 082146
Dear Mr. Hottman:
We are in receipt ot your letter dated March 22, 1994 informing
us that the Department teels our quote at $110.00 per linear toot of
2" conduit, bored is extremely high and can not ~ justified.
The Department is now in the process of awarding our company
the following project:
CUmberland County
S. R. Oll4-004
Contract No. 082147
Bid Date: January 25, 1994
On this particular project there is 319 linear feet of Boring on SR
114, which our linear foot price was $117.00.
Within the past two years, we have completed various projects
tor either private developers or townships in CUmberland County that
required boring under state highways. Generally speaking, we have
encountered very poor underground conditions, mainly solid rock. on
these bores.
We feel that based on our past experience with boring in that
area and also that the Department is in the process of awarding us a
project in Cumberland County for a similiar unit price, that our
linear foot price of $110.00 tor this project is justifiable.
~ Member cf Intemetlonel Munielpel Slgnel A..ocietlon
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'l'ransportation ("PaCOT") project to rehabilitate the rest stops
locatod along Interstate 81 in Cumberland County.
2, ACA filed an answer on October 17, 19951 National Union
filed an answer on February 5, 19951 Brady has not yet filed an
answer.
3. subsequent to filing the complaint, counsel for Kee-ta
Quay reviewed documents at PaCOT pursuant to the Pennsylvania
Right-to-Know Act, 66 Pa. Cons. stat. S 66.2, which revealed,
among other things, that National Union was paid by PaCOT for work
performed by Kee-ta Quay under Kee-ta Quay's subcontract with ACA
and Kee-ta Quay's subcontract with BradYI that National Union
directed PaCOT not to make any payments to ACA for work performed
(which included work performed by Kee-ta Quay) 1 and that National
Union entered into a Construction Contract Take Over agreement
with PaCOT in which they assumed ACA's duties and responsibilities
under the prime contract.
4, Also subsequent to the filing of the complaint, counsel
for Kee-ta Quay reviewed documentation supplied by Brady which
revealed that the amount due Kee-ta Quay is less than the amount
claimed in the original complaint.
5. As a result of this new information, Kee-ta Quay
prepared and filed Kee-ta Ouav construction's ,First Amended
comDlaint ("Amended Complaint"), a copy of which is attached as
Exhibit A. The material amendments in the Amended Complaint
include additional causes of action against National Union as
2
,
follows: Breaoh of contraot, unjust enriohment, third-party
benefioiary on the performanoe bond, and bad faith.
6. On or about March 6, 1996, Counsel for National Union
advised counsel for Kee-ta Quay that they would not consent to the
Amended Complaint.
7. Counsel for ACA and Brady have both oonsented to the
Amended Complaint.
8. Pleadings in this matter are not yet olosed. Virtually
no disoovery has yet oocurred.
9. National Union will not be prejudioed by permitting Kee-
ta Quay to amend its oomplaint.
WHEREFORE Plaintiff Kee-ta Quay construction respeotfully
requests that this Court grant its petition for Leave to File
Amended complaint NYnQ fIQ ~, and direot defendants to file a
written response within twenty (20) days from service of this
Order.
Respeotfully submitted,
POWELL, TRACHTMAN, LOGAN,
::RR~& Bo;;N~'C'1
~g~r Bowman
I.D. #15706
David W. Francis
I.D. #53718
114 North Seoond street
Harrisburg, PA 17101
(717) 238-9300
Attorneys for plaintiff
Datel Maroh 7, 1996
3
.
Exhibit A
~"HllI'''<~., "~J ,.,. '.", II;" "I'" ,'Il 6)
.
(lblllOT"), unu onguqUB in, amon,! 01 hor th i nql3, uuhL'ontl-.ICI work
tor qanoral contractors,
2. Dotandant Adam~ county A"phalt company ("ACA") in a
Pennsylvania corporation with a prlncipul placo 01 business
located at 614 North Front streot. P.O. Box 1531. lIardsburg,
pennsylvania 17105.
3. Defendant Brady contracting co., Inc. ("Brady"), upon
information and belief, is a Pennsylvania Corporation with a
principal place of business located at 3605 Hartzdale Drive. camp
Hill, Pennsyivania 17011,
4. Defendant National Union Fire Insurance company
("National"), upon information and belief. is a pennsylvania
corporation licensed to do business in Pennsylvania. with a place
of business located at 139 university Place. Pittsburgh, PA
15213.
5. On or about March 12, 1992. ACA submitted a bid to PaDOT
for the rehabilitation and construction of certain improvements to
the rest stop area located on SR008l (also known as Interstate 81)
in Cumberland county, Pennsylvani~ ("project").
6. The scope of the Project work included. among other
things, the installation and extension of the existing on and off
ramps, the expansion of existing parking facilities, drainages,
improvements, and the installation of guide rails and lighting.
7. On or about June 3, 1992. ACA was awarded the contract
for the Project by PallOT (lithe Prime contract"). sometime
thereafter, ACA and PaDO'!' entered into the Prime Contract for tho
;~
performance of the work on the Project. Upon inform"!. I on and
belief, a true and correct copy of the contract is in tho
possession 01 Delendantu ACA ,Ind National lInion.
B. Pursuant to the terms ot the Prime contract. and os
required by the Public Works Contractors' Llond Law of 196'/, B P.S.
5191 et seq., ACA furnished a payment bond for the protection of
claimants supplying labor and/or materials on the Project. and a
performance bond to ensure ACA's performance of their contract
work.
9. On or about June 12, 1992, Defendant ACA as principal.
and Defendant National as surety, in accordance wi.th the
obligations set forth in paragraph B above, executed Payment Bond
No. 10-61-59 ("payment Bond") and Performance Bond No. 10-61-59
("Performance Bond"), true and correct copies of which are
attached as Exhibit "A" and incorporated by reference.
10. In or about July 1992. Kee-ta Quay entered into a
subcontract with Defendant ACA to perform certain curb and
sidewalk work on the Project ("ACA/Kee-ta Quay subcontract"). A
true and correct copy of the ACA/Kee-ta Quay subcontract is
attached as Exhibit "B", and incorporated by reference.
11. The ACA/Kee-ta Quay Subcontract provided for Kee-ta Quay
to complete certain items of work in accordance with the
specifications 01 the Prime Contract.
12. sometime after June 1992. Defendant Brady entered into a
subcontract with Defendant ACA to perform, among other things,
lighting and signage work on the Project. A true and correct copy
.I
of thia subcnntrllCt. is not in t.ho pouso/lsion 01 l'laintifl iB
belie~ed to bo in tho pOBRe/lRion of Defendants ACA IInd Brady.
13. Some timo in May. I'J'J3, Kee-t.a Quay i1nd Brady orally
negotiated a subcontract pursuant to which Koe-ta Quay would
provide concr<:!to light-polo foundations on tho l'rojf!ct. Kee-ta
Quay informed Brady that its price to perform the work was $210.00
per cubic yard of concrete material placed.
14. Subsequently, Brady issued a purchaae order to Kee-ta
Quay for the pole-foundation contract work (the "Brady P.O.").
Despite Keo-ta Quay's information that they would supply the
concrete at the price of $210.00 per cubic yard. the Brady P.O.
provided for payment on a per unit basis at $210.00 per pole
foundation.
15. On or about May 24, 1993, Kee-ta Quay signed the Brady
P.O. containing the $210.00 per unit placed payment term. A true
and correct copy of this P.O. is attached as Exhibit "C" and
incorporated by reference.
16. Between May 24,1993. and October 13.1993. Kee-ta Quay
completed the fallowing items of work in accordanco with the
ACA/Kee-ta Quay Subcontract as follows:
a. Mobilization at a lump Bum cost of $5750.00
b. One type M Inlet. Item No. 0605-2060 at a unit price of
$1,200.00
c. 3985 If of Plain Cement Concrete Curb, Item #0630-0001,
at a unit price of $ll.10/lf for iI total ilmount due 01
$51,024.50.
4
d. 40.0() flY curb l.'ut ralUpfl, 'l'ypo I ulnglo, IIL!lII #uc,'jo\-I)OIl).
at a unit prleo of $4~.hO/Uy, for 0 totol duo of
$1980.00
e. 7.67 cy ClnBs A coment concreto. Item #10l)I-001U, ot 11
unit price of $485.0n/cy, tor 11 totol due at $3119.95
f. 336.80 sy Reinforced cement concrete sidew111k, item
#9676-0001, at a unit price of $30.00/sy. for a total
due of $10,104.00
g. 13.33 sy concrote picnic pads, item #9616-0002, at n per
unit price of $35.00/sy, for a total due of $466.55,
17. Between May 24. 1993 and october 13, 1993, Kee-ta Quay
supplied 35 Pole foundations, Type FC, item #0910-0154 at a per
unit price of $210.00 per unit. for 11 total amount due of
$7350.00. This work was performed in 11ccordance with the Brady
P.O.
18. PaDOT Inspected all of Kee-ta Quay's above referenced
work, approved it, and ultimately processed it for payment to one
of the parties. as more specifically set forth below,
19. On or about October 13, 1993, PaDOT, through no fault of
Kee-ta Quay, held ACA to be In default of the AC^/l'aDO'!' Contract.
At the close of business October 13, 1993, PaDOT shut down the
project until further notice.
20. On or about October 13. 1993. PallO'!' advi,;ed National
union that ('aDO'!' had defaulted ACA, and that PallOT expected
National Union to assume Ita obllqatlonn under the performance
bond.
~)
n. Upon information ilnd beliot, ACA WiW paid by pallO'I' to/'
work performed by Kee-tll QUilY throll'lh october II, 1991 ilS tallows:
a. 100% of Kee-to QUily'B mobillMation.
b. 616 lf of Plain coment work, item #0610-0001,
c. 29 Polo foundations, type FC, item #0910-0154.
d. 4.97 cy Class A Cement concrete, item #1001-0010.
22. on or about November 3, 1993, National Union instructed
PaOOT not to release any payments to ACA for work performed on the
project without prior written approval of National Union.
23. On or about March 21, 1994, National Union and paOOT
entered into a written construction contract take-over agreement
("the takeover agreemant") whereby National Union agreed to honor
its obligations under the porformance bond and comploto the work
on the project. ^ true and correct copy of the takeover agreement
is attached hereto as Exhibit "0" and incorporated by reference.
24. Under the terms of the take-over agreement and the
performance bond, National Union was required to fulfill all
contractual obligations of the Prime Contract.
25. On or about May 2'1, 1994, and June 24, 1994, PaD01' paId
National Union, by way of several checks, for wnrk performed by
Kee-ta Quay under the ACA/Kee-ta Quay subcontracc and urady 1',0.
during the period up to October 13, 1993, as follows:
a. One type M Inlet No. 060~-2060.
b. 3279 If plain cement concrotc, ltom #0610-0001.
c. 40 sy cllrb cut ['amps, typo I ninqlQ, item #0694-0UIO.
d. 6.00 Pole foundation,;, Typo FC, item #0910-0154.
"
WHEREFORE, PlAintiff Keo-ta Quay demAnds judgmont Against
Defendant NAtional Union for $6J,764,4~ plus Interest, costs,
,
fees, attorney 8 feeB, nnd Huch other relief AS this court deems
appropriate.
COUNT IV - NATIONAL UNION FIRE INOURANCE CO.
UNJUST ENRICHMENT
42. The averments in paragraphs 1 through 41 arc
incorporated herein by reference.
43. Upon information and belief, National union has been
paid by PaDO'r for work performed by Kee-ta Quay in the amount of
$59,274.95, and has refused to pay this to Kee-ta Quay without any
justification or excuse.
44. National Union'S receipt of payment from PaDOT for work
performed by Kee-ta Quay Is an unjust enrichment at the expense of
Kee-ta Quay.
45. National Union'S actions of directing PaDOT not to make
payment to ACA, receiving payment from PaDOT for work performed by
Kee-ta Quay, retaining this payment, and refusing to pay Kee-ta
Quay is against the fundamental principles of justice and good
conscience and is patently unfair.
46. As a direct and proximate result of National Union'S
unjust retention of monies paid for work performed by Kee-ta Quay,
Kee-ta Quay has suffered and continues to suffer serious financial
injury.
9
.
WHEREfORE, Ken-to Quay demands 0 Judgment in its tovor ,Inct
against Defendunt National Union in the amount 01 $59,214.9b, plus
costs and attorney's tees as permitted by law.
COUNT V - NATIONAL UNION rIR~ INSURANCE CO.
PERFORMANCE BOND
47. The averments in paragraphs 1 through 46 are
incorporated herein by reference.
48. Under the terms of the performance bond, National Union
was required to satisfy all contractual obligations of the prime
contract with PaDOT, which included making payment to
subcontractors such as Kee-ta Quay.
49. National Union has failed to pay Kee-ta Quay for work it
performed on the project, in breach of contract and in violation
of its obligations under the performance bond.
50. Kee-ta Quay is an intended third party beneficiary to
the performance bond.
WHEREFORE, Kee-ta Quay demands a judgment in its favor. and
against Defendant National Union in the amount of $63,764.45, plus
costs, fees and attorney's fees as permitted by law,
COUNT VI - NATIONAL UNION FIRE INSURANCE CO.
PAYMENT BOND
51, The averments in paragraphs 1 through bO arc
incorporated herein by reference.
52. Kee-ta Quay performed labor and furnished material in
the prosecution of the work provided in the ACA/Kee-ta Quay
subcontract.
10
.
5:1, I<ee-ta Quay porformed labor and furnlHhud material In
the prosecution of thu work provided for in the "rady P.O,
54. I<cu-ta Quay has not been paid In full lor the labor and
material supplied on either the ACA/I<ee-ta Quay Kubcontract or the
Brady P.O.
55. Kee-ta Quay has satisfied all conditions precedent for
entitlement to a claim upon the payment Bond, thereby entitling it
to payment by National for materials furnished and labor supplied
on the project.
56. National has failed and refused, without legal
,
under the terms of the payment bond, despite Kee-ta Quay s
justification, to honor its payment obligation to Kee-ta Quay
demands.
WHEREFORE, Kee-ta Quay demands judgment against National
union for a sum in excess of $71,114.45 plus interest, costs and
such other relief as this court deems appr.opriate.
COUNT VII - NATIONAL UNION FIRE INSURANCE CO.
BAD FAITH
57. The averments in paragraphs 1 through 56 are
incorporated by reference.
58. National Union acted as an insurer to subcontractors and
material suppliers providing labor and materials to the project.
59. Kee-ta Quay is an insured under the terms of the payment
and performance bonds.
60. Notional Unlon'R failure to pay Kee-ta Quay amounts due,
after receiving payment directly from PaOOT for work performed by
11
'f 'J~M^NCE 801lU
10110 NO
'l'-':)~__
(NOI< ALL ME~ BY rNfSi'. PRESENTS, That WI, ___-.'..
Adams c..)lJnr'l ~sph.lt ClJ .._____._.--.
0+ P Q el)~ l~JL
HOIrr15blJr'J. P.nnSyl"'Bnlo1 lllO L_________ - ___._~___
a~ PRINCIPAL. anq 1~,Jtll)no\l Union Flnl ,nsur~nce Como~/lY,.o__~_!_lt;;sbur~n. P)
iO PIne Strut. New y,jrk, NY (0271)
. ~ar~Qrlt~on, .$ SURETY, are h.ld and firmly a~und unto ~h. Common~
wlalth 01 PennSylvania ~n the full and Just sum of __t~Q mllllon six_
_nundrld fod'l-fivl thousand eight hundrld nlnlty and 6J/!00._doll.r~
(, _Z,645,490,6J ), lawTul mon.', of 'no Un,~.d Stahs of
~m.rlca. to b. pa:.d to the said Commonwealth or P,nnsylvanlO1, or its
Issivns, to which Plyment well ",d tr\Jl'1 to bt made, WI bind our-
s.lves, our h,ir"J, t)(IC:U1:0rS, Idministr.tor'el, and $UCcusors, jointly
.nd ~Ivlrally, firmly by theso pr.~.nts.
Stal.d wlth OlJr ,..e~p.c:tive s..ls .nd dated this 12th ~.'l of
June
AD 19..E-
~IHE~E~5, t~e .bavQ bounden PRINCIPAL has under~ak~n ~J
e::l";:,~iJC<: ...,lth o:hlf !Sa~cj (.:'Jmmonw..lth or ?nnsy~"an:.ol. =y,)I'':
<:hr?ugh the S.cr~tar'l of Transportat:on cover:~9 :Mt ~or'
~cent~f:.d below for aparox:mate!y the 5~m or __t~o m~l~:Qn 5~~
_"uncrlld 1"or':,,/--tvllt -:hoLJsand ei..ht hunc:red n:.nijt'/ and ol/:OO_..dollar:s
(I 2,645,490 6J )
For th. Improvlmlnt of . clrtain S.c~ion of STATE HIOHI<AY ,n CUMBE~L~ND COUN7~,
~~NN iOl<tlSHIP, Common.....Lth of Pennsy!van~a, STAiE ROUTE 0031 SC:C710N R12. Th,"
proJect ~s located .pprox~m~tely S mlles sou':h o~ C~rl:'51t on I.al t~o~ S~a~::~
4..1-;0 (Se9m.n, OJ70. O""~et 0115) to Station 649+50 (S'9",lnt OJ74, Offse'
ZJJ~J northbound, end Stat~on 676+00,00 (Sogmln': OJ3S, OH..t OOZ~) to Station
;2S...00 (Se9ment 0591, Qf'fset 2l94) sou'thbound. Tor ."penc:.:.ng park:.ng fac:.l.:.t:.o!s
InC2 llng'th.nin9 ,.amps wi ~,' reinforced cement concrete pavtGlent, 10" dep'(h.
orain.age iaUJrove",ents. l.nstall.ation of guide "'11, and s.n..s~allatJ.on of
llgn~ng, .11 "'/l~hin an overall p"'ojtC~ length of 10,023.79 f..t (1.&9 mlle.s:
as indicated on the drawings app,..oved Decembe,. 17,1990.
.nd
WHE~EAS. ~t ....as one the conditions of the ~ward of th. St!c~,tar'/
of ir~n5Po,..~at:on. aet:n9 for ~nd on behalf of the C~mDon~~alth of
Ptnnsvlvania. ~vrsv.nt t.:'J whlcn s.~d c~ntra~t ~as 4n~~r~~kfn by thp.
PQ!NC!PAI. that these pres.nt.:s shovlc: b~ ot:-<e"'::..lted. to ~ftc.::m. blnC:1.n<;
\J;:on the d.a~" sa:d ;.::n~.-ac:': :5 a~crov"o:: .:-:,. ':~l! IJ"';;:,:p' oJ:"' -:'e ;'':Co;/!,:,
by ~he C~mPt~Ql~l!r
"
,'4ml. iHE,~E.=()RE, inlt ,::Jndil.::.ons or ::1:'5 "oi:;at::.on :.5 sue.., ~,":at ;.;;
,:he .bo..... bO\Jnden I'QINC:P:'L, "5 contrac':or. s:lall :.n ,,11 r'!S;J.C:":'s
O~/t~/?2
20
C:-tS, OnOS!!. rZ2~910 coa2071(CJNT~AC:
:1ENl liltn:
lilND NO,
~ :
KNOH All ME~ P lHESE pqE5i'~l5, ",.'
w"",..m'$ t;':)lJnt'l ~5.,tl" L. (,J
P I) l o. 1511 ,.______.__.
"f..rr~'Sbur9, P."n~.'Yl"oln~..
w.,
of
,;101__.__ ....
~s PRINCEPAL, .n~
,~lltilmr.11 UI11l)f\ '-\p! :nSIJr3nce r~Jm[JMll
I) f :) 1 ~:!:JlJ r';" I
'.1 ,~
70 P,ne 5tre~~, ,~ew!or" NY ,0210
a corporatien, ~~ 5U~ETY, ~r. h~l~ dnll ~:rmly bound unto th. C~mmon-
....It" 0# P,nnSylvanl" :.n (he fuLL and "J.5'i: 5um of _t....o II'I111l0" 5:...._
_hundrld forty-f,ve thousand <lght hundreQ nlnety .nd 63/100_ dollar.
(._Z,64.5,190.6J_J, l~wtul mon.', or ~h. United State, or -'mer:.ca,
to be paid 1:0 the 'SO):.d C.,mmonwlalth or ?I!nn:sylvlnlol. Qr ~t .55:.qn:s,
to '",hieh payment "",.11 .nd trl,ll'l to btl "tade, w. blniO olJr'Sllv.s, OlJr
heirs, e,xl..utor:s, adm).ni5~r.tor:s, olnd 5UC';I:ssors, )oln,;l'/ .nd
sevor811y, firmly by thosa prOSlnt.>,
S..led with our re5P'c~:'V' seals ~nd dated tM:.s t2t~ cay ot
,!une 02
- _A,O, 19~
~jHE~E.AS, Th. abo...." bounden pq!NC:?,~l has ...mc:e,.~aken to
~ontrIlC~ 1,oI:.~h ~h. s.ld Commonw6l'al':~ of~.nn$yLvan~,J, Ov.in!::
~nrou9h the S.c~~~J"~ of rranspor~3'::an ~~~ertn9 ~~@ ...o"~
~dent~ti.d below for ~pp,.ox~matei~ t~~ ~um of ~~o n~:::on
_hundrtd for~y-f~~e :housanc .:~n~ huncr~c nln.t~ .nd o:/:JO
(,_2,445,390,65_ )
!5:';.c
. ,
~o..ars
For the impr~vemlnt of e clr'aln S.c.,on of STaTE HIGHHAY ,n CUMBE~LaND COUNTY,
P~~IN TOWNSHIP, Commonweal,h or P.nnSyl,.nlO, STaTE ~OUTE 0031 SECTION R1Z In,.
;:ll"';):,-et is Loc:a-:ftd o1PQr,=,x~ma:.l'l 5 IT'Illtt5 south of C.r!:..:sllt Qn !-.51 -:"rol1l St.t:c'"
441...70 (Segment 0370. Of-:'5.-: all:) ':,J 5:01-::.on 64';";':0 (Se9rne"-: 0374. Otis.:
2535) northbound, end Sta,:on 674>00 00 (Segment 033S, Of~.et OOZ~) '0 S"":on
i2~"OO (S.gmln't 039L. Of'f.set 2194) sc:)u~~bolJnd, tor ,)(pl"o::.n.; P8r!o(:.ng rac:'!:''::t5
and 1.nQ'thlnin9 ramps \ooI1,:h ,.elnro,..ceo cement conc:-.t. ;l.Vtm.nt. 10" dePth,
drainjl9. imp,..ovements. lns'tallat:.on of 1ulce rail. ana J.ns"tallat::.on or
l.:.gh"ing, all \onthln an ovtra11 pro)'!";"':: ten9"CM of 10,02's.79 fe.t (~.aq iTn:o!s:
as indic:atad on tn. d,..awlngS approved O.clImoer 1;, 1990.
and
""HEREAS, :.~ was one of ":,~fJ ''::JnrJl ::Jns aT' the oi""'it,..:: oJ;" :,-"
5ec:-.tary of Tl"an.s;Jor'':.illt::.on. ,ic"::r,., ~,'J" .lnd on bena.i.f of 't~. Common-
..ealth of P.nnSyl.~olnlol. PLJrsuan<: -IJ ....nt.::' '53':.~ <::3nt,-3":": .....as 'JnC1.,..~akdf'
':)'1 ":~e ?~!NC~?AL :,'1;1t -:heslt pr~S~...t5 S,'l1lJL'; ':J'/ tXIIO::'J-::tlL;. :J ':)It,::;nf!
':=-...-::.,~~ 'JPon ~~@ ,~,J-'! 5;]1r.i c~nt:'";),~-: ~5 .)~\.H"'1""I!O .::,. t~n ;1~"':'::1I lJ~
~hl!t 3udget. by ~~'! ':.~mp't~':)l.ll!r
Nu:.i. 1HE::1.E:=:;i\E. ~~t! -::Jndl"::'.Jn .J": ~,.,:..s .:::l:.;a-::..:,-; ~~ ,....:- -"":01": ~...
.~. aoove ~o~ncftn JqrNC:?~L sn3i~ dnr] ~l~: :r?mp~:'1 or ~3u5' :J :3.
~~/1~/tJ2
23
C1S "92'~", 1:2~.J,O cJS2,"(CJNPAC:
POfl.l' ~n flJI. ..~~"I, Of .';'IIlt"I'( ...(llC~1 ",..y b. dl.ll! ':,' ,; ,-~.:':Q" (1r
otherw1S., ~IJ ill'IY lndivllJU01L. r:f+m, lartnfllrsl'1u1. ,P.50r::..t:'lJn, or
(;l3rporilt:'Qf1, "'"r .1L mAt.r:..~~i rlJr"ll$nMd 1)(' l.bl". I5lJPlJll.d or
JHtr1'Qrrned ~n tn.. prosecut:.'Jf1 IJr !hl ,,,,,I),-k, wheth.r llr not the ~~~d
,"a~lr~ll or L..a..,r .nt''''.lJ ~ntJ IInd b.o:.;ame compon,n~ po1r-:s Qf the '""I)r'"
.,,.. uUJrQ".me"t cQnt,,"pL.a~.', .and ~or ,..ntal c)r ~~I .<nJ\~m.nt i.Jsel1 i"\~
s.r"tC'S r.n~.r.d by p\Jbl:.': lJr".l~nes In, or In r:')"neeL"n ,...:.th, '::'1.
proSI~',,,l't:.on or 5IJcn work, ~h." thl'1 ocl:''W81::'lJI1 t:: ~., '101';, lJ-:::"'I.r',",,~"S.t
':0 rlm.:L" ~,., rlJll forc. ~nr: "rtll~ ~
Thl P~INCIPAL Ind SURETY hlrlb',. JOintly and "vIral I'" agru
'""ith the obll~e. h.r.in that .any I.ndl"1.duaL. f:. r"l1 , parol;',",\l!r'1hip,
.55oc~ation Qr corporation, which has perforMld 1'00" or tur~ishe~
m~t.rial in the prOl$lcut::'On of the work as provl.dltd, and ,ny publ:.c
utility which hi. rlnd.r.d ser"'!,c,. 1n, or in connectlon with, the
~ros.cution 01 slJcn work, and which ha5 not been pa:Ld ,," full th.,......
for, may sue In assUMPsit on 1:h15 Payment Bond ln hlS, thelr, or l~S
own na.. Ind .ay pros.cut. th. sa.e to tinal jud9.ment for such $um or
SU~ IS uy be justly due him, them, 0" it, .nd have l)Cec'Jtion ther.-
on, Provided, howlvor. that tho Commonw.alth shall ndt bl liabll for
the payment of any cost$ or .xpenses 01 such suit.
Reco",ry by ilny indi"lcual, firm, Plirtnersn:L;:I. olSSOC:::'olc.Qn I)r
corporation h.r"lJnder shall O. subJect to the pro\l:.s:.ons of 'the
"Pucl::.c ~Iork.s Cont:-8c'tOr,,' !lJnd Law of L967", Ac': ~lo. 53~. apgrov"~
December 20, L96i. P,L. alii, wn::.ch Ac~ shall be :.nc~";Jo"'J":IC: her,,::."
and ma~e a ~ar"':; her.oT. as '7lJl~', and completely as t~olJr;n :~5 P"''J-
~~5ion5 we~. ful11 and iI~ l~n~':" here:n r~c::.~ad.
I": is further I',..ov-:.ded that .any alterations ....hl.::"l .113'1 ::e "ade ~n
~M. t.r~s of 1:he contrac': or :.n ,:h. ....or~ ~o b. done or ~3~er:.als to ~e
furnished or ~abo" to be slJPolild or perform.d IJnc.r :.t or t~e g:.v~~~
by the Commonwealth OT any .x~.nslon or t:~e for ~h. p.r~o,.~anee or
":h. c;ontrac~ or any other 'forbearance on the ~ar': ':If .1 the" -:h.
CommonweaLth or the PRINCIPAL to the othe,., shaLl no't :.n any w..y
~.l.as. t~1 PRINC:?Al and the SURETY or SURETIES or eltner 0" any of
them. their helrs. .xecutQ"~, admlnls'trators, SUC::.5S0rS or aS$lgns
trom ~heir l:.ai::l::.l:.t', h..,...unde,., not1cI to the SUR!;iY or SUREi'ZES or
any such a1 t.ra t:. on. ex":ilns.. an. or forbearancl beln9 hertov wa:. '1.d.
ltI HliNE55 HHE~EOF, the .ud PRJlICIPAL and SURET1' havo duly
executld thls aond under seal ~h. day and ye.r fi,.~t abovt w,.it~.n.
O~/l1/9Z
24
C~S,~920~llT2Z!910 CJS2071(C~HT~.C~;
.
(1)) 51'pdn 1 cllIllllllulIB to ScherJ\lle of Wrnk
(1 f none, ~u den IBnnte)
1. SUIlCONTMCTOIl TO 1'1'.im1llM WlIIlK IN M:COIOlMCi'. WITII 'I'm: 1'llll.JECT SI'I';ClI'ICA'I'IlJN:; ANIJ cON'rMCT
DRAWINGS.
l. AI,I. MAn;RIAI,S SUPI'I,IEIJ ANI)/l)H 116EII IlV '1'111'; 6lJllCONTRAC'/'OH 611ALL HEi'.'/' IlMllJ1I1F,HF.NTS ANIJ
SPECIFICATIONS FOR TillS I'IIO,JEC'I' ANII ALl, HAn:IlIAl. SIIlI'HI',NT6 TO IIi'. ACCUHI'AN I EIJ IlY CERT-
IFlCATION.
3. SUBCONTMCTOR IS R~;SI'ONS1ULF. FUR AIJH1N6T11A'I'I Vi'. I'ROC~;IJUHES ANII ImllUIRF.H~;Nl'S ASSUC1ATlm
WITIl SUBCONTRACTEO SCIIEIlUI,E m' WOIlK.
4. SUBCONTMCTOR IS REQUIIlW TO FURNlSII ~:V11II';NC~; U~' INSURANCE AS 1l~;(IUIRlm UY SPF.C1FlCA'flONS
ANO/OR CONTRACTOR.
5. QUANTITIES OF WORI( PI';IlFORH~;1J AlII'; TO Ill'; VERIFlEU UY '1'IIE CONTRACTUIl.
6. SUBCONTMCTOIl BOUNIl TO l'IlF.VAILINll WAG~: SCIlEUlll.l, <ATTAClllm), CEllTlnW PAYIlOl.L6 HUST BE
SUBHITTED TO CONTMCTUIl IN A TIHEI.V HANN~;R,
7. SUIlCONTMCTOIl SllALI. II Ii HF.SI'ONSlIlI.E FOIl ANY l'ENAI.TlES ASSI';SSEIJ AI:A\NS'I' CON'/'RACTOIl OUF. TO
LACK OF PERFORMANCE BY SUB CONTIlACTOR.
8. SUBCONTMCTOR TO COHH~;NCF. WORI( WITIIIN '.11 1I00JllS O~' NUTlCE FROM CONTIlACTOR ANIJ PROCEED
WITIl ALL DILIGENCE.
9. CONTRACTOR RESERVES TIIF. I\LGII'I' TO ISSUI'; A ,lOIN'/' PAYMENT CIIECK TO SUll-CON'l'llIICTOR ANO/OR
MATERIAL SUPPLIERS.
10. SUB-CONl'IlACTUR REIIUIRW TO llAVF. lllJAI.1HI';1I ANII \'ENNIJOT AI'I'Il0Vi'.1l SUI'F,IIVISUR ON I'RO,JECT
AT ALL TIHES.
11. SUB-CONTRACTOR RF.QlJIRW TO IIAVi'. Al.l. A1'I'J.ICAIILE SAL~;S TAX I NCI.Ollf.J1 IN PRICi'.S,
3. The Subcontractor, by executing this Subcontract,
represents Ami .....arrants to t he Contractor that it is qUAlified,
capable, experlencl'd alltl available to pHfono th~ Schedule of
the Work ns set forth in parngraph '1. of this Subcontract under
the tel"IDS ollll conditions of the Principal Contrnct and this
Subcontract, In the quantity and for the al'lOunl therein set forth.
....nd 'rlithin Ihe time nil !,". ~!ul'inr, lhe execul10n of the Principal
Conlrnct. <I!'signated. Ihe .,ubcontrllctor dues further rel'l"eSent
~o the Conll'.1Clor thnt when' pl"eq\lalifil'lltioll to perronn the work
1n this cunll,lCt Is requi1('u by the Owner 1l1lJ is a condition pre-
- '. -
cl'dt>nt to (olllrnd In!', or lIullltllllrnl'llllg to Ill.dollO Budl work,
lhlll the $Ubcolllrndor In duly 60 1'11"I"nllfil'd RIl,I will remain
pr(''lualiCiI'<'\ for lI\lch work fllr the dllllltlon of this ~ulH;onlract I
including any oddilion or l!xll'1l5iun lht>reoC.
4, PROGRESS m' WORK - The Sub\:ontl"8ctor wi 11 promptly
begin s8id work 06 800n as he is notified by the Contractor and
wi 11 carry for\lard IInd complete 6/lid \.lor\<. 118 rapidly 88 the
progreSll of the work of the Contrnctor will permit. The Subcon-
tractor will Curni sh B/lid lDaterials, labor and equipment, prose-
cute 5aid work with diligence, without delay, and will not in any
manner delay or othe1'.,16e interfere with the work oC the Contractor
or othar Subcontl"llctors. Should the snid Contractor conclude that
a Subcontrllctor is unjust ly and without valid reason delaying said
\o'ork or the SubColltl'nctor hns performed Baid war\<. in a deficient
or l~proper lIlnnnt>r, he 6holl 50 notify snld Subconlractor by cerl~.
{i cd or registered mnil, or by telegl'illn, setting forth the complain:
in detd 1, and the Subcont ractor wi 11 have two (2) days from the reo
ceipt oC said mnlled complaint or te1t>grnm to correct the cO::lplaint,
In the event Subcontractor Cails to comply with said notice and to
cor rect the compla int, said Contractor shall have the legal right
to take possession of all equipment, machinery and supplies in and
upon the contract 6ite, including, but not limited to, construction
machinery, equipment and supplies of the Subcontractor and to use
the same to correct the complaint or to hsve the complaint corrected
by subletting this work to others, and said construction machinery
and equipment as needed to be used to correct &aid work deficienciu
shall be used by the Contractor or any subcontractor designated by
the Contractor to so use the same, The Contractor shall charge the
expense of the correcting ....ork against said Subcontractor and de-
duct the $"me from the contract, and 6hould the amount of payments
due on said contract be insufficient. to collect the said deficiency
from the Subcontractor by legal process and/or surety company. or
its agents, by request or legal process. Upon correction of said
work, or the deficiency, the machinery and equipment of the Subcon-
tractor shall be delivered to Subcontractor, upon rptice, at the con.
tract site. Subcontractor shall supply skilled and experienced
e.mployees ready and able to work ill hal-mony with the Contractor and
wi th other pdme contractors and subcontractors and/or their ~.
ployees, Acceptable to the Contractor, the Owner and the Owner',
representatives.
In perfol'millg the fOll'going work the SUbcolltl',1ctor
shAll furnish nil 11.lbor, l''luipment, mat..rinls, supplies and every-
thing lIecesslHY or lllcidf>nt nl thereto or In cunni'ctlon with the
pel fOllOilllce by It of it6 "".nk ns H''luirl'd nnd 1'1I11<'d for under the
provisions of the Pdndpol Contract. It is un,lel'6lood and agreed
~ 5 -
by the I'II1tic5 IWlelo thllt the qUlllltity of work as ~h()""n above
8fe IIpploxilllllte ollly 1\11<.1 lire 8ubjet'l to incre.16e or decrease
and it io funher undl'l'lJtood lhnt 011 qUllntitie6 of \lork Whelher
increa6ed or decreosl'd BT(! to be perf'nmed lit the unit price
above quoted and agreed upon and that the Subcontractor, in all
events, shall be entitled to be pnid for that number of unit.
finally detel1nined upon by the O....ner, if the Owner'. determina-
tion is not occeptable to the Subcontl'actor, the Contractor sholl
appeal such detennination to the extent Iluch h feuible and per-
missable at the Subcontractor'. written request to do so and at
the Subcontractor'. cost and expense.
5, TIME ALLOWED FOR CONSTRUCTION OF PROJECT - It l.e
expressly understood and agreed by and between the parties hereto
that time is and shall be considered the essence of the contract
on the p8ft of said Subcontractor nnd should the 6nid Subcontrnctor
(ai 1 to begin, continue nnd complete the work ns herl'in provided
nnd should the Contractor suffer or pennit said Subcontractor to
occupy more time than required under this agreClllent, in that event
the said Subcontractor hereby covenants and agrees to indemnify and
save harmless the said Contractor from any loss or damage which may
be compelled to make good to the Owner, for or on account of delay
in the completion thereof, insofar as said delay was caused by the
said Subcontractor. If the Subcontractor claims he is delayed in
the prosecution of bis work through no fault of his 0Y11 and that
such delay 1& costly to him, he shall be entitled only to such com-
pensation for such delay as is allowed and paid for such by the
~er to the Contractor to the extent such is attributable to the
subcontractor's work. Any such claim by the Subcontractor shall
be submitted to the Contractor in writing, containing all pertinent
details, by the Subcontractor within ten (10) days of the alleged
delay, failure of the Subcontractor to give such written notice
wi thin ten (0) days shall tenninate any right of the Subcontractor
to make, such claim to the Contractor or the Owner.
6. CONDEMNATION OF WORK - The Subcontractor shall provide
swficient. safe and proper facilities at all times for the inspec-
tion of the work by the Project Engineer, Architect and the Conlractor
or their authorized representative, for the inspection of the Sub-
contractor's work and materials used or to be used. lie shall, at
once. fl'IDove all materi/lls, and take do....n lint! rebuild all portions of
the work condemned by the Project Engilll'er, the Architect and the
Contractor or their representative, upon recpiving notice in writing
of such condemnation.
7. ~:XTRA WORK. All extra worK to be pl'l(oltDpd by the
Subcontractor must be cOllllpnset! to writing /lnt! II rnte of pay agreed
upon befol'e such work Is \IIHlertaK,'n. Said (~xtra work Agrccments
muS t be signed by reprl'Gl'nt at i ves of l he Cont ractor and Subcontractor
and will be subject to the tenns /lnd condi,tlons of thie Subcontract
Agreement.
- 6 -
8, ll>fJHlIFlCATJON at' COIIlHACIOR-I'^n:IHS MIU 1'^'IWr
R Jt;/ITS - The ~ju!J\'ollt I'/letor IH'I'l'Ly l'UVl'llllllt 8 and agrel'8 to
indl'lllll1fy and UIIVl' hnlllll..B8 the COlltlactor fr(JtQ AllY Alld ftll
cll\lms or suits frolU illhlngelllL'llts of P/ltt'lll. or viol at Ion or
plltl'llt dghts, Illcludlng all C06tS /llld l'xpell6l'8 to which thl!
CUlltl/ldor UlIlY lx> pUI In d...fendlnB Any /Inion thst IQl\Y adsl! through
the work of the Subcontractor.
9. INDEHNU'ICATlON OF CONTRA('~J'OR AND O\oINER FROM ^LL
LIABILITY - The SubcontrActor shall have charte of the entire
work until completion /lnd acceptance, /lnd sh8 1 alone be liable
for and shall pay all loss or damage cAuGed by him or by hie ser.
vants, agents or employees to property, buildings or adjecent work
and for any occident to persons that may occur during t~e per-
formance of the work covered by this Subcontract or at any time
thereafter as 11 cOllsequence of the performance of said work. The
SubcontrActor shAll obsl'l-ve all &tate ftnd munlcipnlity lows, ordi-
nances Illld r('Bulations and shl1ll dL'fend and save hAnDless the Con-
tractor IIlld the Owner frolD all suits and clAims whatsoever Cor loss
of life or injury occurring to e~ployees of the Subcontractor who
perform such work. The Subcontractor agrees to fully idemnlfy,
protect and save h.lI'mless the Contractor IInd the Owner from all li-
ability froiD all claims, loss, dnmage, suits and actions of every
kind and from a 11 cos t s .lnd expense s in connection wi th such claw,
suits and actions due to Injuries to persons or damage to property
whether resulting from accident, negligence or any other cause what-
soever occuring during the performance of the work covered by this
Subcontract or at any time thereart~r as a consequence of the per-
formance of the same or which lDay at any time occur or result Cr~
or be cllused by such work and if there are any 8uch claims un.ettled
when the work herein provided for is completed, final settlement by
the Contractor and Subcontractor shall be deferred until such clai~
are adju61ed or suitable spedal indemnity acceptable to the Con-
tr~ctor is provided by the Subcontractor,
10. INSURANCE REQUIREMENTS - The Subcontractor shall take
out and pay for I
(8) Workmen's Compensation lInd Employer's Liability In-
surance in accordance with the laws of the State of Pennsylvania
and the F~deral Statutes.
(b) Cont ractor' s Public J.lo1bil ily and Prop~1 ty Dam.lge In-
surance, Said policy of insurance wi 11 be wdtten to provide for
the following limits $.,000.000.00 dollars for all
da:~a&es arising out of bodily injuries to ur death of one person,
Rlld subject to thllt limit for each 1)('1'50n, n total of $1,000,000.00
dollars for 1111 d;lIn.ll.\L'S arising (I\lt of bodi ly Injur1(,B to or death
- 7 -
of two or more persons in anyone accident, and regular con-
tractors property damage liability insurance providing for a
limit of not leBS than $I,OOO,OllO.OO dollars for all
damages arising out of injury to or uC8truction of property in
anyone accident ond subject to that limit per accident, a total
(or aggregate) limit of $I,OOO,lIOO.OO dollars
for all damages arising out of injury to or destruction of
property during the policy period. This policy of insurance shall
be endorsed a8 followsl to cover the explo8ives and collapse
hazards and injury to or destruction of wires, conduits, pipes,
~ain8, sewers, or other similar property, or any spparatuses in
connection therewith, below the surface of the ground, as such
injury or destruction is caused by and occurs during the use of
mechanical equipment for the purpose of excavating or drillin~ or
injury to or destruction of property at any time resulting there-
from.
(c) Public Liability and Property Damage Insurance
covering the operation of any motor vehicle used by or for the
account of the Subcontractor in connection with the work to be
performed under this Subcontract. Said policy of insurance will
be written to provide for the following minimum limits: Bodily
Injury Liability $1,000,000.00 dollars each person
and $1,000,000.00 dollars each accident, Property
Damage Liability $1,000,000.00 dollars each accident,
The Subcontractor shall furnish to the Contractor three
(3) copies of the policy and three (3) certificates of insurance
for the following of the above mentioned policies.
(a) Workmen's Compensation.
(b) Contractors Public Liability and Property Damage
Liability Insurance.
(c) Public Liability and Property Damage Insurance
covering the operation of motor vehicles.
All of the above mentioned policies of insurance shall
aaid policies shall not be changed or cancelled until
WTitten notice has been given to the Contractor.
11. TAXES - The Subcontractor shall pay all the Pennsyl-
vania Sales and Use Taxes on all taxable items, and all Federal
Old Age Benefit Taxes, Federal Unemployment Compensation Insurance
on all labor furnished under this contract, as required by the
Commonwealth of Pennsylvania and the United States Government, as
well as any other taxes, Federal, State or Local, applicable to or
occasioned by the Subcontractor's performance of this contract or
employment of persons hereunder,
provide that
1 ~ days
- 8 -
12. curHl\AC'I' COIWL\AlH,t: - The SubcontrActur 8hall
"hide uy All \'ef'>l'l>ll('l>,1 or IJI>ntlfll'll prllDe contract provision.
fOl' Federal ni~ plojed8, Utlltutl'6, rules, regulAtions or pro-
cedllres appllcnble thl'\'l'to liS Wl'll 118 by all 8uch prime contl'Act
provisions callillg f'lr uhSl'IVAIll'1' uf certAin PennsylvAnia or
10c/ll statutes, lules, rl'gullltlunu or procedures whether or not
speclficnlly refeneJ to in this suucont\'act and ",hether or not
fonn8 or certiBcAtes are 8upplll'd to the Subcontractor to achieve
such compliance, wlthollt limitation lIuch lJlotter. include Federal
and/or State non-discrimination pruvision., re-negot1stion pro-
visions, rninltnWII wage provisions, /Inti kick-back provhiona, peT
day pl'OV 18ions. dAily and week 1 y overt ilDe provh iona. payroll de-
duction provisions, pnyroll clAssification and apprentice provllioll',
Pa)'lnents under this subcontract \lI,lY be withheld at any time to the
(>x'tent necessary to affect compliance with thls -:II' any other article
of this uuhcontract. HoreOVI?I', the Subcontractors shAll msintaln
II record of the totnl cost of :Ill lIIAterials and supplies purchased
for and incorporated In the wurk and Rho the quantities of those
5,lecl Bc materials and supplies and in the units shown. Upon COill-
pletlon of the Buhcontrnct, this record, together with the !lnal
labor BUJlDDary shall be submitted to the State Dietdct Engineer, for
a 11 State and Federally assisted projects, for the project on the
State's appropriate forlD for such or on a form supplied by the pd'lle
contractor in accordance with Instnlctions thereon. The quantities
for the listed items shall be reported separately for roadway and
for structures over twenty feet long as measured along the entire
center line of the roadway.
13. ASSIGNMENT OF SUBCOtlTRACT - None of the rights under
this Subr.:ontract, including assignment of funds, shall be S5slgned
by the Subcontractor without prior written consent from the Con-
tI'actor. Any attempt to assign the Subcontract will operate 86 an
instant forfeiture and repudiation thereof by the Subcontractor
and the dghts of the parties shall be detel'1lllned in the same manner
as though the Subcontractor had at the time of such attempted assign-
ment failed and refused to continue to perform the contract.
14. EXTENSION OF TIME - No ll110wance of time ..,ill be made
the Subcontractor for delay in prel'81'ing his drs",lngs or, in secur-
ing ,lpproval of the Owner nnd the Contr:lctor's engineers wIlen such
drawings are not properly l'l'ep/lred for approval of the O\.-ner and the
Contractor's ent:lncers.
Extl'lI!;lon of tllll!! to be t:ranted to the Subcontractor
wi 11 bc the ".1101.' only IlS Is granll'll to the Contractor by the o....ncr,
8~HI will be in aCc(lIllalll'C with the :;l'l'dflcatlon5 in the Principal
Cuntract.
- 9 -
15. CONTRAGl' AND LABOR ANI> MAn:RIAL BONDS - The
subcontractor furLh~r flgrcc6 that he will simultaneously, with
the execution of Lhio 8gre<'J111'nt, provide the Contractor, if
requested, with s Contract Jlond, covering satisfactory'performancl'
of the work contracted, the penal sum of 100% of the amount of
the Contract. and an "Additionsl Bond for Labor and Materials,"
covering the prompt payment in full for utility services rendered
to sub_Subcontrsctors and for all materials furnished, rental
for equipment used, and/or labor supplied or performed, in the
prosecution of the work, and also in the penal sum of 100% of the
amount of the contract. Both bonds must also be executed by 8
Corporate Sur~ty satisfactory to the Contractor.
Payments under this subcontract may be withheld at any time
during the life of same for non-compliance with the above bonding
requirements.
16. TERMS OF PAYM};NT - The Contractor agrees to pay the
subcontractor his portion of all payments received by the Contractor
from the Owner within Heven (1) days after rl!ceipt thereof. It is
also understood and agreed that all estimates shall include the
materials on the site if 50 permitted by the Owner as a part of the
current estimates,
It i6 further understood and agreed that no payment on
account shall operate as an approval of said work or materials, or
any part thereof.
17. APPROVAL OF SUBCO~rRACT - It i6 understood and ageed
by the parties hereto that this agreement is subject to the aP-
proval of same by the Owner,
It is also understood and agreed thdt this agreement is
subject to the principal Contract in its entirety, entered into
by the Contractor and the Owner, relating to this particular pro.
~ect.
18. CONTRACTOR'S RIGHTS TO WITtulOLD PAYMENTS-
IT IS UNDERSTOOD AND AGREED THAT THE SUBCONTRACTOR
SHALL PAY -
(n) All empluyees unconditionHlly and not less
often than once a week.
(b) For 1111 {1.,IllSpoIllltion /lnd utility services
not latl!r than thl! 10th day of the c/llendar month following that
in which said servic(!s 1Irc l'l.ndcrcd,
- 10 -
(d For nil matl'r1111o, toola, tentals, and
ot lwr expendnble l'qulpt:.ent not Inter than the 10th day
o( the cnll'ndnr month (ollo."ing thllt in ....hich 6aid lDaterlall,
to01o, rentalo and equipment arc delivered at the site of
thel project.
A Contractor shall havc the right to \lithhold payment.
(rom the Subcontractor, in addition to retain percentages al
may be provided in the Pdnc1pal Contract. of luch 1C0unta u
may be necessary both to ill6ure compliance witb all of the terma
of thia Contract by Subcontractor, for work perfol1lled by the
Cont ractor or other subcontrectors in accordance with paragraph
4 of this Contract, find a6 necessary to pay all just claims (or
1 abor and services, rental and materials furni&hed in end aoout
said work, which is the obligation of the Subcontractor to pay.
The Contractor shnll have the dght, acting 85 agent of the Sub-
contractor, to apply such retained amount to the paycents o( such
just claims and (or ....ork required to be perfomed.
19, SUBCONTRACTOR'S RELEASE TO CONTRACTOR - Upon receipt
of !inal payment, the Subcontractor does hereby agree to give the
Contractor a duly signed release relieving the Contractor !roaa
any 1 iability in regard to lDonies due under this Subcontract. and
the Subcontractor will certify that all of his obligations for
services, materials, equipment rental, too1&, etc.. incurred on
this Subcontract have been paid and that if any liability Ihould
occur on his behalf, then the Subcontractor \lil1 indemnify the
Contractor.
20. APPROVAL OF QUANTIT1ES - Prior to the acceptance of
final quantities. the Contractor shall give five (~) days notice
of such quantities fo the Subcontractor for his approvll.
21. PRIOR NEGOTIATIONS AND AGREEMENTS - All negot iat ionl
snd agreements prior to the date of this agree::lent are merged herein.
This Subcontract has been read and is fully understood by the Sub-
contractor.
The Conl ractor lInd the Suhcontractor for t hl':lselves, their
S\lCCessors, executors, al~ninistrllt:ors and assigns, hereby agree
to the full pedolloance of the COVl'nants of this agltl'r;)l'nt.
77, n~k~\lN^HOt'l. If I'riJ:ll' contractor's work is tl'lmina-
led or nbllndoned, i( SUblolltr.1l'tor cannot work in halUlony with
othl'r Contl'IlCtlH6, Subl'onlrllctors or their employees, is 1n br(.ach
- 11 -
WHEREPS, the SURETY issued its performance and payment
bonds, each in the amount of $2,645,890.63 and dated June 12,
1992, guaranteeing, in accordance with the terms thereof, the
faithful performance by ACA of the Contract; and,
WHEREAS, by letter dated September 8, 1993, from the
District Engineer, ,Engineering District 8-0, OBLIGEE advised ACA
of OBLIGEE's intent to declare ACA in default of the Contract;
and,
WHEREAS, by letter dated October 13, 1993, a true and
~orrect copy of which is attached hereto as Exhibit "A", the
OBLIGEE declared ACA in default of the Contract and called upon
the SURETY to discharge its bond obligations; and,
WHEREAS, by letter dated October 13, 1993, a true and
correct copy of which is attached hereto as Exhibit "B", the
OBLIGEE called upon the SURETY to remedy the default and complete
,
or procure the completion of the Contract ("Comp!etion Work") in
accordance with the contract documents and SURETY has agreed with
the OBLIGEE to perform its obligations under the bonds subject to
certain terms, conditions andlor requirements to which the
parties hereto have agreed and which terms, conditions andlor
requirements are hereinafter set forth: and,
, .
2
WHEREAS, the original Contract amount payable to ACA for the
satisfactory completion of the Contract was $2,645,890.6JI and,
WHEREAS, the original Contract amount has been adjusted by
virtue of positive and negative change orders aggregating a net
increase of $8,J29.781 and,
.
WHEREAS, the OBL~GEE has paid ACA $2,045,244.01 for work
both completed by ACA and accepted by OBLIGEE prior to the
aforesaid declaration of default; and,
WHE~AS, the OBLIGEE has assessed liquidated damages in the
amount of $116,000.00 from money due or to become due to ACA
pursuant to the contract provisions for Construction Engineering
Liquidated Damages.
WHEREAS, the OBLIGEE acknowledges that the balance of
$492,976.40 ("Contract Balance") remains available to SURETY for
Completion Work, and,
WHEREAS, the SURETY desires to arrange for Completion Work
and proposes to have same performed by Robert A. Kinsley, Inc.,
Box 2J2, R.D.' 8, York, Pa. 1740J-9808 (hereinafter referred to
as .~placement Contractor"), which is a competent and
prequalified (in accordance with 67 Pa. Code Chapter 457)
contractor, and,
, ,
3
WHEREAS, the Replacement Contractor has entered or will
enter, into a separate agreement Is) with the SURETY under which
Replacemen~ Contractor has agreed or will agree to perform the
Completion Work under the Contract, in strict accordance with the
terms and conditions of the Contract.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, it is understood and agreed as
follows:
1. The foregoing recitals are incorporated herein bv
reference as if ~et forth at length.
2. SURETY hereby agrees to take over Completion Work and
the OBLIGEE agrees to accept Robert A. Kinsley, Inc., as the
Replacement Contractor to perform said Completion Work.
3. Upon execution of the Replacement Contractor's
agreement, and prior to the physical 'start of Completion Work, a
preconstruction conference ("Conference") shall be held with
representatives of the Surety, Replacement Contractor and
OBLIGEE's Engineering District 8-0. At the Conference a schedule
together with a plan to complete said Completion work no later
than April 30, 1994, having delays resulting from and/or
consideration of pre-existing site conditions, e.q. frozen and/or
icy ground due to previous winter storms and/or temperatures
, .
4
tor additional compensation, it provided for under the Contract,
Agreement or related documents.
,
7. The parties hereto hereby ack~owledge and agree that, by
this Agreement and/or by operation of law, equity or both, SURETY
has succeeded to all the rights of ACA to payment and to all the
rights of the OBLIGEE, incLUding, but not limited to, the
OBLIGEE's right to set-off funds for any 1055 sustained on the
Contract and/or the Agreement against any funds that may be due
ACA on any other contract between OBLIGEE and ACA, subject to the
provisions of Paragraph 11.
8. It is understood and agreed that nothing in this
Agreement shall alter, affect, or vary the rights and obligations
of the parties under the terms of the original Contract between
the OBLIGEE and ACA and the performance ann paymer,'. bonds issued
thereunder by SURETY except ~s provided herein: and OBLIGr.E
agrees that SURETY's total liability under this Agreement, the
Contract, and the conditions of the foregoing performance and
payment bonds issued on behalf of ACA shall not exceed the penal
amount of the performance bond: and all payments made and to be
made by SURETY are deemed made pursuant to the SURETY's
obligation under said bonds and will be charged against the penal
amount of said performance bond.
9. The OBLIGEE and the SURETY acknowledge that nothing
. . herein shall extend, limit, alter, amend or waive either party's
6
rights, defenses or ob!igations aB provided for under the
Contreet documents or the bonds except as expressly provided
otherwise in this Agreement.
10. The obligation of the SURETY to third perties as the
result of the issuance of its payment bond for and on behalf of
ACA sha!! not be affected by this Agreement.
11. The SURETY Acknowledges the actua! assessment of
liquidated damages by the OBLIGEE prior to date of declaration of
default, but the SURETY fully reserves a!! rights to request any
appropriate extensions of time and/or to (,l,ntest the validity of
any assessment of liquidated damages. The SURETY does not waive,
prejudice or in any way adverse!y affect any claim or defense of
any kind or nature that it, as surety or as contractor, might
have against the OBLIGEE. The OBLIGEE wi.! not release any
Contract funds to ACA without written consent of the SURETY.
12. The OBLIGEE represents that portions of work completed
by ACA may not have met the requirements of the Specifications,
drawings end Contract and that the SURETY wi!! be held
responsible for the cost(s) associated with the correction of
meeting said requirements that may have been paid for by OBLIGEE
to ACA, including but not limited to, incidental work.
, .
7
13. The parties hereto do not intend, by any provision
hereof, to creatfl any third party bflneficiary rights upon anyonl!
not a party hereto, nor to confflr any benefit upon or enforceable
rights hereunder or otherwise upon anyone oth.r than the partifls
hereto, any such intent or construction being expressiy denied.
For exampie, the parties acknowledge that nothing contained
herein shall be deemed to extend or increase the rights of any
ciaimant as definfld in the bonds, or either of them.
14. The SURETY expressly reserves aii prior rights,
equitabie liens and rights to subrogation that would be the
OBLIGEE's, the Laborers', or Materialmen's or Adam! County
Asphalt's under the Contract or at law or equity, as weil as its
own rights dating back to the execution of the performance and
payment bonds, inciuding but not limited to those rights and
remedies that may accrue during. ',e compietion of the Contract.
No waiver of such rights is agreed to or implied or intended
regardless of any provisions of this Construction Contract
'Takeover Agreement to the contrary.
15. The OBLIGEE expressly reserves all prior rights,
equitable liens and rights to subrogation that would be the
SURETY's, the Laborers', or Materialmen's or Adams County
Asphalt's under the Contract or at law or equity, as well as its
own rights dating back to the execution of the performance and
payment bonds, including but not limited to those rights and
remedies that may accrue during the completion of the
, .
8
Q
o
.
U-[3~(!j(!)~ ~~~~
CJ-j u
~~~~& y/
Fa" 12161376.9601
T/1Ifflc Electricel & Ughllng Co.. Inc.
22300 Nonh Fifth Street
Reading, Pa. 19606
March 30, 1994
RfCEfVEO
MAR 3 1 1994
CJl.ST!ltJCilc:r.o l1'1"
01 srli leT r.:]
H.~RIl' :;.aURG. ~A
Commonwealth of Vennsylvania
Department ot Transportation
Engineering District 8-0
2140 Herr Street
Harrisburg, PA 17103-1699
Attn: Barry G. Hoffman, P.E.
District Engineer
hJA."\'l.. -::,
AfP(Or ,-,v A 1\
RE: CUmberland county
S.R. 0074-005 and S.R. 0174-004
Contract No. 082146
Dear Hr. Hottman:
We are in receipt of your letter dated March 22, 1994 informing
us that the Department teels our quote ot $110.00 per linear foot of
2" conduit, bored is extremely high and can not be justified.
The Department is now in the process of awarding our company
the following project:
CUmberland County
S. R. 0114-004
Contract No. 082147
Bid Date: January 25, 1994
On this particular project there is 319 linear feet of Boring on SR
114, which our linear foot price was $117.00.
Within the past two years, we have completed various projects
tor either private developers or townships in CUmberland county that
required boring under state highways. Generally speaking, we have
encountered very poor undergt'ound conditions, mainly solid rock, on
these bores.
We feel that based on our past experience with boring in that
area and also that the D~partment is in the process of awarding us a
project in Cumberland county for a similiar unit price, that our
linear foot price of $110.00 for this project is justifiable.
~ Member of Intemetionel Municlpel Signel iUeocietlon
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - AT LAW
NO. 95-4296 CIVIL TERM
KEE-TA-QUAY CONSTRUCTION,
plaintiff
ADAMS COUNTY ASPHALT COMPANY, :
INC., I
:
and
BRADY CONTRACTING CO., INC.,
and
NATIONAL UNION FIRE INSURANCE
COMPANY
Defendants
MOTION TO COMPEL DISCOVERY AND rOR SANCTIONS
iYR8UANT TO fA R.C.P. NO. 4019141
plaintiff Kee-Ta-Quay Construction ("Kee-Ta-Quay"), by and
through its attorneys powell, Trachtman, Logan, Carrle & Bowman,
P.C., hereby moves this Court for an Order compelling Discovery
and for sanctions pursuant to Pa. R.C.P. No. 4019(a) against
Defendant Adams county Asphalt company, Inc. ("ACA") on the
following grounds:
1. On March 5, 1996 Kee-Ta-Quay, by United states mail,
postage prepaid, served upon ACA, Request for the Production of
Documents. A true and correct of this request is attached hereto
as Exhibit "A" and incorporated by reference.
2. ACA failed to answer and/or respond to Kee-Ta-Quay's
request within the thirty-day period specified in Pa. R.C.P. No.
4009.
3. On April 26, 1996, Kee-Ta-Quay's counsel sent a letter
via facsimile transmission to ACA's counsel requesting ACA'S
oompliance with Kee-Ta-Quay's disoovery request. A true and
correot oopy of this letter is attached hereto as Exhibit "8" and
incorporated by reference.
4. subsequently on May 6, 1996, hearing no response from
ACA's counsel, Kee-Ta-Quay's counsel sent a follow-up letter via
tacsimile transmission to ACA's counsel again requesting ACA's
compliance with Kee-Ta-Quay's discovery request. Kee-Ta-Quay's
cQunsel further advised ACA's counsel that if ACA failed to
comply within ten days, Kee-Ta-Quay would be seeking jUdicial
intervention by this Court. A true and correct copy of this
letter is attached hereto as Exhibit "C" and incorporated by
reference.
5. As of the day of this Motion, ACA and/or its counsel
have failed to comply or otherwise respond to Kee-Ta-Quay's
discovery request or to the various letters by Kee-Ta-Quay's
counsel.
WHEREFORE, Kee-Ta-Quay respectfully requests this court
issue an Order compelling ACA to produce the documents that were
requested by Kee-Ta-Quay in its Request for production of
Documents within ten days, and award Kee-Ta-Quay its reasonable
2
IxhlbltA
If any document herein requested was formerly in the possession, custody or control of
ACA and has been lost 0, destroyed, defendant is rr;quested to submit in lieu of each document a
written statement which:
1. Describes in dlltallthe nature of the document and ilS contents;
2. Identifies the person who prepared or authored the document and, if applicable, the
person to whom the document was sent;
3. Specifies the date on which the document was prepared or transmitted or both;
4. Specifies, if possible, the date on which the document was lost or destroyed, and if
deslroyed, the conditions of, or reasons fo" such deslruction and the persons requesting and
perfonning the destruction.
If any documents otherwise required to be produced by this request are withheld,
defendant shall identify the document by stating its date, author, recipients, and the reason for
withholding.
This request for production of documents is continuing and any document obtained or
located subsequent to produ~'tion which would have been produced had it been available or its
existence known at the time is to be supplied without delay.
DEFINITIONS
A. The word "document" or "documents" refers 10 any printed, written, taped, recorded,
g,aphlc, computerized print-out, or other tangible matter, from whatever source, however
produced or reproduced, whether in draft or otherwise, whether sent or received, or neither. It
includes, but is not limited to, the original, a copy (if the original is not available) and all non-
identical copies (whether different from the original because of notes made on or attached to the
copy or otherwise) of any and all writings. correspondence, letters, telegrams, cables, telexes,
contracts, proposals, agreements, minutes, acknowledgments, notes memoranda, analyses,
projections, work papers, books, forecasts or appraisals, papers, records, reports, climes,
statements, questionnaires, schedules, computer programs or data, books of account, calendars,
graphs, charts, transcripts, tapes, transcripts or recordings, photographs, pictures or film, ledgers,
registers, worksheetll, summaries, digests, financial statements, and all other infonnation or data,
,ecords or compilations, including all underlying supporting or preparatory material now in your
possession, custody or control, or available to you, your counsel, accountants, agents,
representatives or associates, "Document" or "~ specifically includes documents kept
by individuals in their desks, ~t home or elsewhere.
B. The term "j:<>mmunication" or communi~" includes or requests infomlation
relating to all oral communications and "documents" (as described above), whether or not any
2
such documents, or infonnatlon contained therein, was transmllled by its author to any other
penon.
C. The tenn "~," '')'Q1I[,'' "ACA," or other reference tn anyone to whom this Request
for the Production of Documents are directed shall mean Adams County Asphalt Company, Inc.,
Its directors, officers, employees, agents, and representatives, as well as any allomeys, experts,
investigators or persons acting or purporting to act on its behalf.
D. The tenn "lhulllim" shall mean the project for the Improvements to SROO81,
Section RI2, as Identified in PaDOT Cont,act No. 082071
E, The tenn "PaDOT" shall mean the Commonwealth of Pennsylvania, Department of
Transpiration.
F. The leml "~tional Unio,," shall mean National Union Fire Insurance Company.
G. The tenn "DmlIt' shall mean Brady Contracting Co., Inc.
H. The tenn "Kinsl~" shall mean Robert A. Kinsley, Inc.,
DOCUME~TSTOBEPRODUCED
I. All documents which refer to, relate to, or pertain in any manner to the work
perfonned by Kee.ta Quay on the project. This includes, but is not limited to, log books.
Inspection reports, requests for payment or other document as thattenn is defined above,
2, All documents which refer to, relate to, or pertain in any manner to the quantity of
work perfonned by ACA on the project prior 10. the default. This Includes, but Is not limited to,
copes oflog books, inspection reports, quantities books, requests for payment, estimate payments
or other itemized breakdowns of work perfonned on the project.
3, All documents which refer to, relate to, or pertain in any manner to the perfonnance
and payment bonds supplied to ACA by National Union in coMection wilh this project. including,
but not limited to, any master indemnity agreements, any correspondence between National Union
and ACA, or any other document as defined above,
4. All financial records reflecting receipts, disbursements, credits and all of the financial
transactions relating to the project, including all sources of original entry.
5. All documents which refer 10, relate to, or pertain in any manner to any claim made
upon the payment bond supplied by ACA in accordance with the contract documents for this
project,
3
6. All dllClllllentll which refe, Ill, ,chile III, III IIeulln 'n any IIIIUlller III II"yment(II) made
by PaDOT to ACA fllr wnrk Ile.tillmelllln Ihe fllllJecl ThillncludcN, but III nlllllmited to, cllllies
of requests for payment (Inchullnl! itemlled hll!lIkllllwnN IIfllulUltitiUN Jle,'i.mned) copies of checks
received trom PaOOT, all cllrreNllUndence, CtImllllll'r luhuollts, conl,actor's esllmale reports,
CMS estimate infomlatlon, II' IlIIY III her dllClIlIlell1 ilK IhattemlIs detllled above
7, All documentK which rete, Ill, ,chile III, or IIerllllll III any mallller 10 payment(s) made
by PaDOT tl) NationallJnlon Ihr wurk flllrtillllll,'(1 nlllhc prujcct. Thlllncludes, but is not limited
to, copies ofchcckK received IhlmI'IIUOT, 1111 currelllllllllellcc, clllllputer prlnlouts, contractor's
estimate reportl, eMS eltimlle illlilllllatlllll, nr IIny olher documenll aa thattenn il defined
above,
8, All document I which ,eler Ill, ,e1ale II. or Ile,llIllI in any lIIanner to payment(s) made
by National Union tl) ACA fllr work perti.llll1ed nil the pruject. This Includes, but Is not limited
to, copes ofchccka ,eceived I'o,m IlaUOT, alll:mre8plllldencc, computer printouls, contractor's
estimate reports, CMS estimale IlIthrrllalilln, or IIIIY III he. dllcumenls as that term is defined
above,
9. All documents which reler to, relale 10, or IIef'lain in any manner 10 payment(s) made
by National Union to any lIuhwnlrllctnr, Kuh'KllhcolltrllCIO" IIr malerial supplier who performed
work for ACA on Ihe projecl
10, All documelltK which reler Ill', relale tn, ur IIertaill in any manne, to payment(s) made
by ACA to any subcontraclur, suh'KubconlrnclUr, or lIIalerial supplier who performed work 1'0'
ACA on the project.
II, All cortespondence between ACA and National Union ,elating to the project.
12, All cortespondence between ACA IInd IllIDOT relallngto the project.
I J. All cortespondence bel ween ACA alld Brady relating to the project.
14. All cortespondence between NalillnallJnilln and Drady relating to the project.
IS, All complaints, allSWer8, counle,.c1l1ims, writs of summons, pleadings, discovery,
depositions, intertogatorieK, rel\ueKt~ 'ii, sdmis810llS, requests for the production of documents,
docket entries, settlement allreemenls ur nlher legal documents which refer to, relate to, or
pertain in any manne, 10 any c111111l 11111111181 AC A rclllting to the project.
16. All complaints, IlIIswers, cuunler.c1alms, wrils of summons, pleadings, discovery,
depositions, Intertogatorie8, rCllue8ts for admissions, requests for the production of documents,
docket entries, se\llement IIl!reelllcnls nr nlher legal dncumellts which refer to, relate to, or
..
lAW l>lllll\
POWEll., IRAClITMAN, l.oc;AN, CARRLE B BOWMAN
^ l'tHllI\'\IIi"^1 "IIIj'l)Il."lllltj
II.' I'll III 1 II '0,., ll/H 'd~111
t/lll .' IH '1100
'AI\IJl.lIII'11I1t ."111 ,n;ll,
.,ijl ,.,um c,U~PlI \lOAl>
!tINe. Of PIl!'~~I^ flA lo.-Of)
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April 26, 1996
or coul'UU
RA~PlIl POlfIL~ JR
PATRICK If ~IPPL!'
nA..lAX
-MW ^DMITTlO IN NJ
.....UO ADMITTlD I'" NC
.AUO ADMITTlP IN MP
_"'UO ^OMITTI" IN 01
P\1A.l1 KIP\Y TO
Harrisburg
Renee Kilgarriff, Esq.
.Cohen & Huntington
1515 Market street, suite
P.O. Box 59449
Philadelphia, PA 19102
818
Re: Kea-ta Quay Construction v. Adams county Asphalt
company, Inc. and Brady contracting co., Inc. and
National Union Fire Insurance company
Docket No. 95-4296 civil Term (cumberland Countv C.P.\
Dear Renee:
This letter is in follow up to our telephone conversation of
this afternoon in which you advised me that you could not
recommend to your client that he pay any interest to Kee-ta Quay
on the outstanding amount due on the contract. I simply aannot
understand the logic of your position that your client is not
responsible tor the payment of prejudgment interest because you
presented her with a partial release in April, 1994. Initially I
note that the partial release was n2t acceptable to Kee-ta Quay
in April 1994. At that time, approximatelY 6 months of interest
had accrued on the $5750.00, tor a total in excess of $5900.00.
By signing the partial release, Kee-ta Quay may have waived this
interest, just like you are suggesting they waive interest now.
Moreover, the fact that Kee-ta Quay did not execute the
partial release does not mean that they waive prejudgment
interest. The award of prejudgment interest in contract disputes
is a matter of legal entitlement and right. In Fernandez v.
~8vin, 519 Pa. 375, 548 A.2d 1191 (pa. 1988), the supreme Court
of Pennsylvania noted that "for over a century it has been the
law of the commonwealth that the right to interest for money
Ms. Kilgarriff
April 26, 1996
Page 2
owing in contract is a legal right." In addition, the payment Qt
interest is not contingent upon when it is demanded. ~
MetroDolitan Edison ComDanv v. Old House Manor. Inc., 334
Pa.Super 25,482 A.2d 1062 (1984). Based upon these cases, I
oannot guess what possible legal authority you have tor
suggesting that your client not pay interest. If you have.any
legal authority, I would \ike to see it.
Please be advised that I have been told by Kee-ta Quay to
pursue the entire amount of their lawful claim, and not one penny
less. with that in mind, let me recap the current status of
settlement negotiations: National Union has offered Kee-ta Quay
$62,000.00 to settle its claim for those items ot work for which
National Union was paid by PaDOT. This offer is short by
$5309.00 in interest. Kee-ta Quay will not settle with either
National Union or Adams County Asphalt until this interest is
accounted for. Either ACA or National Union must pay it; Kee-ta
Quay really doesn't care which. Both of you are responsible for
it. secondly, Kee-ta Quay will not settle with ACA unless the
interest on the outstanding balance is paid. If Kee-ta Quay is
required to pursue this matter to litigation in Cumberland
county, we will demand payment of all legal fees incurred as a
result of ACA's failure to pay amounts lawfully and justly due.
Finally, Kee-ta Quay served a request for production of
documents on ACA on March 5, 1996, which required you to file a
written response within thirty (30) days, and to produce the
documents at our offices .on April 8, 1996. You have not produced
the documents nor received an extension of time in which to
respond. Please see to it that this request is responded to
expeditiously. Please consider this a good faith eftort at
resolving a discovery dispute before seeking jUdicial
intervention.
Please call me if you have any questions.
Very truly yours,
POWELL, TRACtlTMAN, LOGAN,
:~n & BO~N )'C'
~ Francis
DWF/mak
cc: Jack Clark
Barry Kronthal, Esq. ~
Dean Piermattei, Esq.
LI>W OIflO'\
POWELL, TRACHTMAN, LOGAN, CARRLE ~ BOWMAN
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May 6, 1996
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IA.UC) ADMITTlD IN NJ
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fU,\\1 WLY TO
Harrisburg
Renee Kilgarriff, Esq.
Cohen & Huntington
P.O. Box 59449
philadelphia, PA 19102
Re: Kee-ta Quay v. Adams county Asphalt et al.
No. 96-4296 Civil (Cumberland county c.P.)
Dear Renee:
This letter is in follow-uP to my letter of April 26, 1996.
As you know, Kee-ta Quay sent a request for prOduction of
documents to ACA on March 5, 1996, which requested ACA to file a
written response within thirty (30) days, and produce the
documents at our offices on April 8, 1996. You have not produced
the documents nor received an extension of time in which to
respond.
On April 26, 1996, I sent you a letter by fax restating the
above facts and advising you to respond to our request for the
prOduction ot documents expeditiously. Ten days has now expired,
and we have received no reply from you.
Your comment that you could not recommend to your client
that he pay any interest to Kee-ta Quay has made it perfectly
clear that Kee-ta Quay's claim against Adams county Asphalt is
not going to settle. Accordingly, Kee-ta Quay is entitled to
inspect the documents requested on March 5, 1996.
Please consider this letter a second effort at resolving
this discovery dispute. Please also be advised that if ACA does
not comply with the request for the production of documents
\
v.
Attorneys for Defendant
Adams oo~1I1UU1L Co.,
IIJCI>~I (~ (f
YOU NIl hI.I.IB'f ""'..~
10 PLlAD101HI_.'9 .-:.
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WITHIN WJINIY.......
SEfMClIA JCl.ORA....'
JUOG~....I_.Mf'"' . .
c06\\lr r I ~.
OUIIR~
ATTO~NEY FOR
CIVIL ACTION . AT LAW
NO. 95.42" CIVIL Tlax
COBIH . BUKTIHGTOB, P.O.
IYI aoy.. coben, Isquire
AttornlY I.D. HO. 32342
IYI aln.. ailqarriff, Isquir.
AttornlY I.D. Ko. 67580
1511 Klrk.t .tre.t, lltb rloor
.biladllphia, ..nnsylvania 1'102
(211) ....1700
UI.TA QUAY CONSTRUCTION,
plainUtf,
ADAMS COUNTY ASPHALT COMPANY,
INC. ,
and
lRADY CONTRACTING COMPANY,
INC.,
and
NATIOIAL UNION rIRI INSURANCI
COII.UY ,
Defendants.
ANSWIR TO K.I-TA-OUAY'S rIRST AMENDED
COMPLAINT AND NEW MATTER
Defendant, Adams county Asphalt company ("ACA"), by and through its
undersigned counsdl, hereby responds to the First Amended Complaint of
Kee-ta Quay Construction ("Kee-ta Quay") as follows:
1. Admitted upon information and belief.
2, Admitted.
3. Admitted upon information and belief.
4. Admitted upon information and belief.
5. Admitted i" part and denied in part. It is admitted that ACA
submitted a bid to Pennsylvania Department ot Transportation
(IPennDOT"). However, the bid is a writing which speaks tor itselt and
any oharacterization or interpretation thereof is expressly denied.
6. Admitted.
7. Admitted.
8. Admitted in part and denied in part. It is admitted that ACA
turniehed a payment bond for the protection of claimants supplying labor
and/or materials on the Project. However, the payment bond and kCA's
contract with PennDot are writings which speak for themselves and any
characterization or interpretation thereof is expressly denied.
9. Admitted.
10. Admitted in part and denied in part. It is admitted that in
July 1992, ACA entered into a subcontract with Kee-ta Quay. The
subcontract is a writing which speaks for itself and any
characterization or interpretation ther.eof is expressly denied.
11. Denied. The subcontract is a writing which speaks for itself
and any characterization or interprotation thereof is expressly denied.
12. Admitted in part and denied in part. It is admitted that ACA
entered into a subcontract with Brady Contracting Company, Inc.
("Brady"). However, the subcontract is a writing which speaks tor
itself and any characterization or interpretation thereof is expressly
denied.
13. Denied. ACA is without suff icient knowledge or information to
torm a belief as to the truth of the allegations in this paragraph and
theretore denies the same.
14. Denied. ACA is without sufficient knowledge or information to
torm a beliet as to the truth of the allegations in this paragraph and
2
theretore denies same. Moreover, the purchase order is a writing which
speaks for itselt and any characterization or interpretation thereof is
expressly denied.
15. Denied. ACA is without sufficient knowledge or intormation to
torm a beliet as to the truth of the allegations in this paragraph and
th6retore denies same. Moreover, the purchase order is a writing which
spaaks tor itself and any characterization or interpretation thereot is
expressly denied.
16. Denied.
17. Denied. ACA is without sufficient knowledge or information to
torm a belief as to the truth of the allegations in this paragraph and
therefore denies same.
18. Denied,
19. Admitted in part; denied in part. It is admitted that PennDot
sent ACA a letter on October 13, 1993 advising ACA it was held in
def.ault of the contract. It is specifically denied that the detault was
through no tault ot Kee-Ta Quay.
20. Admitted upon intormation and belief.
21. Admitted in part; denied in part. It is admitted that ACA was
paid for 29 pole foundations, type Fe, item #0910-0154. However, ACA is
without sufticient knowledge or information to form a beliet as to the
alleqation that this work was performed by Kee-Ta Quay and there tore
denies same.
22. Admitted upon information and belief.
23. Admitted in part; denied in part. It is lldmitted upon
information and beliet that National Union and PennDot entered into a
3
Contract Takeover Agreement. However, that Agreement is a writing which
speaks tor itselt and any characterization or interpretation thereof is
expressly denied.
24. Denied. The Takeover Agreement is a writing which speaks tQr
itselt and any characterization or interpretation thereot is expressly
denied.
25.
26.
Admitted upon intormation and belief.
Admitted upon intormation and belief.
COUNT I
ADAMS COUNTY ASPHALT COMPANY. INC.
27. ACA incorporates paragraphs 1 through 26 above as though set
torth at length herein.
28. Admitted in part and denied in part, It is admitted that
Kee-ta Quay supplied labor and materials to ACA on tho Project beginning
May 24, 1993. However, it is denied that Kee-ta Quay supplied labor and
materials to ACA in accordance with the ACA subcontract. Finally, ACA
is without sutficient knowledge or information to form a beliet as to
the truth ot the allegations in the remainder of the paragraph and
theretore denies same.
29. Denied. The allegations set forth in this paragraph are
conclusions ot law to which no response is required. By way of turther
answer, ACA denies that Kee-ta Quay is entitled to payment in tull and
that Kee-Ta Quay fully performed its work under the ACA Subcontract
because Kee-Ta Quay has not paid all of its suppliers on the Project as
requir~d by the Subcontract.
4
30. Admitted in part and denied in part. It is admitted that ACA
has paid Ree-ta Quay $10,480.05 for the work performed and the materials
supplied on the project since that was the amount that ACA was paid by
P~nnDot. It is specifically denied, however, that there is a balance
due and owing Kee-ta Quay of $63,764.45. On the contrary, ACA has only
been paid by PennDot tor approximately $5,000.00 more ot the work which
was pertormed by Kee-ta Quay, However, ACA does not owe that money to
Kee-Ta Quay because Kee-Ta Quay has not paid all of its suppliers on the
Project as required by the subcontract and ACA is withholding this money
as it is permitted to do under the subcontract. As far as the remaining
balance is concerned, ACA is without sufficient knowledge or information
to torm a beliet as to the truth of the allegation that amount is due
and owing Kee-ta Quay and therefore denies same. Moreover, ACA has not
been paid that amount by PennDot and pursuant to the terms ot ACA 's
subcontract with Kee-ta Quay, ACA is not required to pay that amount
until it is paid to ACA by PennDot.
31. The allegations set forth in this paragraph are concl.usions of
law to which no response is required. By way of further or answer, it
is denied that ACA breached the subcontract with Kee-ta Quay. Rather,
by not paying its suppliers, Kee-Ta Quay breached the subcontract.
32. Admitted in part and denied in part. It is admitted that ACA
has not paid Kee-ta Quay $63,764.45. It is specifically denied,
however, that that amount is due and owing to Kee-ta Quay.
WBIRlrORI, Adams County Asphalt company respectfully requests that
this Honorable Court enter judgment in favor of Adams county Asphalt
company and against Kee-ta Quay construction and award Adams county
Asphalt Company interest, attorney's fees and costs of suit.
5
COUNT II
BRADY CONTRACTING COMPANY
33. ACA incorporates paragraphs 1 th.ough 32 above as though set
forth at length herein.
34. ACA is without sutticient knowledge or intormation to torm a
belief as to the truth of the allegations in this paragraph and
there tore denies same.
35. The allegations in this paragraph are conclusions of law to
which no response is required. By way of further answer, ACA is without
sutficient knowledge or information to form a belief as to the truth at
the allegations in this paragraph and therefore denies same.
36. ACA is without sufficient knowledge or information to torm a
belief. as to the truth of the allegations in this parl1graph and
therefore denies same.
WB!a!rOaB, Adams County Asphalt company respectfully requests that
this Honorable Cou~t enter judgment in favor of Adams County Asphalt
company and against Kee-ta Quay Construction and award Adams county
Asphalt company interest, attorney's fees and costs ot suit.
COUNT nI
NATIONAL UNION rIRE INSURANCE CO. IIN TH~ ALTERNATIV!1
37. ACA incorporates paragraphs 1 through 36 above as though set
forth at length herein.
38. The allegations in this paragraph are conclusions ot law to
which no response is required.
39. ACA is without sufficient knowledge or information to torm a
beliet as to the truth of the allegations in this paragraph and
theretore denies same.
6
40. The allegations in this paragraph are conclusions of law to
which not response is required, By way of further answer, ACA is
without sutt1cient knowledge or information to torm a belief as the
truth at the allegations in this paragraph and therefore denies same.
41. The allegations in this paragraph are conclusions of law to
which not response i. required, By way of further answer, ACA i.
without sutt1cient knowledge or information to form a beliet as thlll
truth ot the allegations in this paragraph and there tore denies same.
WKIRlrORI, Adams County Asphalt company respectfully requests that
this Honorable Court enter judgment in favor of Adams County Asphalt
Company and against I<ee-ta Quay Construction and award Adams County
Asphalt Company interest, attorney's fees and costs of suit.
COUNT IV
NATIO~AL UNION PIRE INSURANCE COMPANY
rlNJUST ENRICHMENT
42. ACA incorporates paragraphs 1 through 41 above as though set
forth at length herein.
43. Denied. ACA is without sufficient knowledge or intormation to
form a belief as to the truth of the allegations in this paragraph and
therefore denies same.
44. Denied. The allegations in this paragraph are conclusions at
law to which no response is required. By way of further answer, ACA is
without sutficient knowledge or information to form a belief as to the
truth ot the allegations in this paragraph and therefore denies same.
45. Denied. The allegations in this paragraph arc conclumions of
law to which no response is required. By way of further answer, ACA is
without sutticient knowledge or information to form a beliet as to the
truth ot the allegations in this paragraph ~nd therefore denies same.
7
46. Denied. The allegations in this paragraph are conolusions ot
law to which no response is required. By way of further answer, ACA i.
without sutticient knowledge or information to form a beliet as to the
truth ot the allegations in this paragraph and therefore denies same.
WHIRlrORI, Adams county Asphalt company respoottully requests that
this Honorable Court enter judgment in favor of Adams county Asphalt
Company and against Kee-tll Quay construction and award AdAms county
Asphalt company intarest, attorney's fees and costs of suit.
COUNT V
N~TION~L UNIPN FIRE INSUR~NCE COMPANY
PERrORKANCB BOND
47. ACA incorporates paragraphs 1 through 46 above as though set
torth at length herein.
48. Denied. The allegations in this paragraph are conclusions ot
law to which no response is required, By way of further answer, ACA is
without sufticient knowledge or information to form a belief as to the
truth ot the allegations in this paragraph and therefore denies same.
49. Denied. The allegations in this paragraph are conclusions ot
law to which no response is required. By way of further anSWer, ACA is
without sutficient knowledge or information to form a beliet as to the
truth of the allegations in this paragraph and therefore denies same.
50. Denied. The allegations in this paragraph are conclusions ot
law to which no response is required. By way of further answer, ACA is
without sutticient knowledge or information to form a beliet as to the
truth ot the allegations in this paragraph and therefore denies same.
WHIRlrORI, Adams county Asphalt company respectfully requests that
this Honorable Court enter judgment in favor of Adams county Asphalt
Company and against Kee-ta Quay construction and award Adams County
Asphalt company interest, attorney's fees and costs of suit.
B
COUNT VI
.~TION~L UNION 'IRE INSURANCE COMP~NY
PAYMIINT BOND
51. ACA incorporates paragraphs 1 through 50 above as though set
torth at length herein.
52. Admitted.
53. ACA is without sutficient knowledge or information to torm a
belief as to the truth ot the allegations in this paragraph and
there tore denies same.
54. Denied.
55. The allegations in this paragraph are conclusions ot law to
which no response is required, By way of further answer, ACA denies
that Kee-TA Quay has satisfied all conditions precedent under the
payment bond.
56. Admitted in part; Denied in part. It is admitted that
National Union has not paid Kee-Ta Quay. It is specifically denied,
however, that National Union did not have legal justification tor
tailing to pay Kee-Ta Quay.
WllllrOII, Adams county Asphalt Company respectfully requests that
this Honorabl~ court enter judgment in tavor of Adams county Asphalt
,company and against Kee-ta Quay Construction and award Adams County
Asphalt company interest, attorney's fees and costs of Quit.
COUNT VII
NATION~L UNION rIlE INSURANCE COMPANY
B~D FAITH
57. ACA incorporates paragraphs 1 through 56 above as though set
torth at length herein.
9
58. The allegations in this
which no response is required.
5g. The allegations in this
whioh no response is required.
60. The allegat.ions in this
which no response is required.
61. The allegations in this
paragraph are conclusions ot law to
paragraph are conolusions of law to
paragraph are conclusions of law to
paragraph are conclusions ot law to
which no response is required.
WKIRlrORI, Adams County Asphalt Company respecttully requests that
this Honorable Court enter judgment in favor of Adams County Asphelt
Company and against Kee-ta Quay Construction and award Adams County
Asphalt Company interest, attorney's fees and costs of suit.
NEW MATTE~
62. ACA incorporates paragraphs 1 through 61 above as though set
forth at length herein.
63. Kee-ta Quay has failed to state a cause of action upon which
reliet can be granted.
64. Kee-ta Quay's claim is barred by the statute ot Limitations.
65. Kee-ta Quay's claim is barred by the statute of Frauds.
66. Kee-ta-Quay's Complaint is barred by the doctrine ot waiver
and/or estoppel.
67. Kee-ta Quay's claim is barred by the doctrine ot accord and
satisfaction.
68. Kee-ta Quay's claim is barred by the terms of its subcontract
with ACA since ACA has not been paid for Kee-ta Quay's work by PennDot.
69. Kee-Ta Quay's claim is barred by the terms ot its subcontract
with ACA since Kee-Ta Quay has not paid all of its suppliers on the
Project as required by the Subcontract.
10
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3. NlIlillllulllllioll Firc Insllnlncc CompllllY ("NUllonlllllnlon"). UpOIl inlill'flllllion lInd
belicf. is 1I Ncw YllI'k corporlllloll uuthof'i/cd to do busincss In I'cnnsylvlInill. with its principlll
plllce ofbllslness locUlcd lit 70 I'lne Strcct, Ncw Yurk, NY 10270.
4, On orllllllut MlIrch 12, 1'1<)2, t\('^ sllbmiucd 1I bid toPlIl>OTlilr thc rchubilitlllilln
lInd COIlS!l'uelllln of ccrtllln Improvcmcnts tothc rcsl stop lIrcllloclllcd on SROOK I (lIlso known liS
Inlerslllle KI) in Cumbcrlllnd Counly,PcnllsylVllnlll ("Projcct").
5. The scope oflhc Projccl work Included, umol'lg othcr Ihlngs, Ihe Instllllutlon lInd
eXlenslonofthe exisling onllnd olTnullps. thc expllnsioll of cxistlng Pllrklng llldlllics, dminllgcs,
Improvemenls, und Ihc insllllllltlonof guidc rails und IIghling,
6, Onlll' lIbout June 3, 1 '1<)2. AC^ wus awardcd the cOlllrnctlllr thc Projccl by
PlIDOl ("the Prlmc Conlrnct"). Sometimc thcrcllncr, ACA lInd PlIDIH enlcred Inlothe Primc
Contmctlllr Ihc perlllmlllllCe ofthc work on the I'roject. lIponlnllll'llllltionllnd bcllef, a true lInd
correcl copy oflhc contmct is Inlhc posscsslonoflkfcndllnt ACA.
7. Pursuant to the tcrms oflhc Prlmc Conlmcl, and liS rcqulrcd by thc Public Works
Conlrnctors' Bond Luw of 1967, K P,S, * I 'II cl scq.. ACA liJrnishcd 1I paymcnt bond lilrthc
prolecllon of c1ulmants supplying lubor und/ur n1Utcrlals onlhe Projcct. und 1I perflll'll1UnCC bond 10
ensu,c ACA's perllll'llluncc of their contrncl work.
K. In or uboul July 1992. Kec-tu QUllY enlercd into u subcontracl with Delendunl ACA
to pcrlllnll ccrtuin curb und sidcwulk work onthc Projcct ("ACAlKce-tu Quay Subcontmcl"),
A lrue und corrccl copy oflhc ACAlKcc-ll\ QUllY Subcontrnct is uttllchcd us Exhibit "A", and
incorporulcd by rcfercncc,
21l1U
2
14, lJpollllllilllllutloll uml hdl~r, At'A wus 11111d hy PullOT till' work p~rlilrmcd hy
Kcc-tu Quuy through < letohcr 11, 199.1 us li,II'lws:
u, I OO'Yo, or Kcc-IU <)uuy's mohlll/lltioll,
h, 61611' or Pluill c~mcllt work, It~IllII06.l0.000 I,
c, 4.97 cy Cluss A t'cmcllt concr~tc, Itcm/II 00 1-00 I O.
IS, Kcc-tn Quuy's sllhcolltl',lcl rrlc~ till' thcsc itcms orwurk is $16.230,OS, lilr which
ACA wus puld hy PuIlOT.
16. ACA hus ollly puld Kcc-tu l)nuy $1 O,4HO.OS IiII' thcsc Itcms or work, Icuvtng u
hulunec of$S,7S0.00 duc und owing Kcc-tul)lIuy.
17, 011 or UhllUt Muy 27. 1994,und JUIlC 24,1994, PullOT puld NlItiollullJnion, hy
WllY of scvernl chceks, IiII' thc rcmuilldcr orth~ work Pl'rtimncd hy Kcc-tu Quuy ulldcr thc
ACA/Kcc-tu Quuy suhcolltrnct.
18. Thc vuluc ofthc work pcrlimncd hy Kcc-tu Quuy till' which NlItiollul Ulllon wus
paid hy PaDOT is $S8.196,12.
19, Kcc-tu Quay asscrtcd u c1ail11l1guinst NutillllllllJniollutthis dockctllumhcr under
the paymcnt hond,
20. On or uhout JUIlC 21, 1996, Kc~.tll Quuy sclllcd its c1uim mthis dockctlllll11hcr
against NutionullJllion IiII' all itcms of work IiII' which NutionullJllillll wus puid hy PuDOT. plus
intcrest on thosc itcms rromthc dutc NutionallJnioll wus puid hy PuDO'\'.
21. Kcc-tu Quuy hus Ilot hccn paid IiII' thc intcrcst 011 the itcms of work Iromthc dutc
payment was duc hy ACA until paymcnt wus Illude hy PuDOT to NutionallJlliol1, which is Ih1l11
200.1
4
,., '~."""""~~_""h._' .
, ,
(0) Schedule of the Work
ITI!K , g.u8nt 1 ty Dl.!8cdptlon Unit Price Amount
0630-001 3564 LF P1111.n ClIlllent Concrete Curb 13.10 46,688.40
0694-0010 40 SY Curb Cut RompR. iype I Sl.ngle ,.9.50 1,'180.00
1001-0010 12 CY ClnaR ^ Cement Concrete ,.85.00 5,820.00
9676-0001 624 SY Reinforced Cement Concrete 30.00 18.720.00
Sidewalk. Specilll
9000-0000 .... 96 LF Screening Fence 45.00 4,320.00
0608-0001 L.S. Hoblll.zation 5.750.00 5,750.00
Totnl: ... $ 83,278.40
f\o ~S) EM. , 01\ ~c-H.ll.
sA~ pl..A i)uotc -I<~/) Dr)
no r"ll.Pr.
Sill I 'i .J-
I
i () (
-Je, 0 ..:::x)bb~.
~t;
- 3 .
..
"
(LJ) Specinl Cunll1t lons to Schellule or Work
(lC nOlle, 60 lleoi&llote)
1. SUBCONTRACTOII '1'0 1'I\I\liOJIM WOItK IN M:COllllANCI'; WL'I'II '1'111\ l'ItOJliC'I' SI'~:ClliICNI'WNS ANlJ CONTRACT
DRAWINGS,
2. ALl. HNI'IiI\lA',S Slll'l'l.lI\1) ANn/Oil 1J61i11 IlY '1'111\ SIJIlCON'I'llAC'I'OIl SIIALI. HliJiT IllillUlIlliMIiNTS Ai'll>
SPECll!'lCATLONS FOil TillS l'ItO,J[ie'l' ANI) M.I, tlA'l'Iil\lM, SIIIPMENTS TO B~; ACCOHPANIElJ BY CEllT-
IFICATLON.
3, SUBCONTMCTOIt IS llESI'ONSllll,Ji FOR ADHlNSTItA'l'l Vii 1'Il0CliIlUllES Ai'll> R~;ljU IllliH~;N'I'S ASSOCIATED
W11'1I SUBCONTAAC1'El> SCIIEDIJI,E O~' WORK.
4, SUBCON'l'MCTOR IS IIEljUIRlilJ '1'0 ~'URNISII IWlUliNCli OF INSUllANCE AS IllillUIRElJ IlY SPECIFlCATlONS
AND/OR CONTRACTOR,
5, QUANTlTlES OF WOlIK PliRFOllM~;l> Allli TO Illi Vl\lllFlElJ lIY '1'II1i CONTMCTOIl.
6. SUBCONTRACTOR BOUNl> '1'0 I'll/WAlLING WMHi SCllliIlULIi (NI"I'ACIIED) , CEllTlFllilJ PAYROLLS MUST BE
SUBMITTEl> TO CONTMC'I'OIl IN A TlMEI,Y HANNEIl,
7, flUBCON'I'MCTOIl SIIM.I. IHi 1l~:SI'ONSLIlLfi FOil ANY I'I,;NM,TLES ASSliSSElJ AGAINST CON'l'llACTOIl l>UE 1'0
LACK OF PERFORMANC~; BY SUIl CON'I'IlAC'I'OlI,
U, SUBCONTMC'I'OIl '1'0 commNCIi WOIlK WITHIN I,ll 1I0UI16 OF NOTlCE FROM CON'l'IlJ\C'I'OIl Ai'll> 1'1l0CliEl>
WITH ALL DILIGENCE,
9, CONTRACTOR IlESlillVES TilE \\lml'l' '1'0 LSSlJli A JO Ii'll' I'AYHI\NT CIIECK 1'0 SUB-CON'I'MCTOIl ANlJ/OIl
MATERIAL SUPPLIEIlS,
10, SUB-CONTllAC'I'OIl 1l~;lllJlll/ilJ '1'0 IIAV~; QUAI.IFlI\I) AND I'WNDO'I" Al'PROVlilJ SUl'l\llVlSOIl ON PIlOJECT
AT ALL TIMES.
11. SUB-CONTRACTOIl 1l~;QUIIlEIl '1'0 IIAVIi AI.l. APPLlCAIlI,~: SALliS TAX INCLUl>EIl IN PIlICES.
3. The Subcontractor, by executing this Subcontract,
represent6 and warrnnts to the Contractor that it is (IUnliCied,
capable, experienced <lnd available to perronn the Schedule of
the Work as set forth in paragraph 2 of this Subcontract under
the tenos ond conditions of the Principal Contract and this
Subcont.ract, in the II\Hllltlty ond for the amount therein set forth,
And \lithin the t illle nfl 19, dUt'ill!', the execution of the Principal
Cont roc t., des ignate.!. The Subcont ractor does rur ther represent
to the Contractot' thaI: where pt-equalification to perform the work
in this controct is required by the Owner and is a conditIon pre-
- '. -
ced~~nt to contracting 0\' D~lbcontl'acting to perCorm Dueh work,
that the Subcontractor io duly 50 prequAl1Cied And will remain
prequol1fl.ed Cor Iluch work Cor the duration oC thi6 Subcontract,
including any addition or extension thereof.
4, PROGRESS OF WORK - The Subcontractor wi 11 prompt ly
begin uid work liB Boon 110 he is notified by the Contractor and
wi 11 tarry Corward and complete 6aid work as rapidly 110 the
progre56 oC the work of the Contractor will permit. The Subton-
tractor will furnish said materials, labor and equipment, prose-
cute 58id work with dil1gnnce, without delay, and will not in any
manner delay or othen..ise interfere with the work of the Contrsctor
or other Subcontractors, Should the said Contractor conclude that
a SubcontrActor is unjustly and without valid reason delaying said
....ork, or the Subcontractor has pel"Conned said work in a deficient
or improper monner, he 5hllll so notify said Subcontractor by cert;-
Cied or registered mail, or by telegram, setting Corth the complain:
in detail, And the Subcontractor will have two (2) dAYB Crom the u-
ceipt of said mailed complaint or telegram to correct the cO::Jplaint,
In the event Subcontractor fails to comply with said notice and to
correct the complaint, SAid Contractor shall have the legal right
to take possession of all equipment, machinery and supplies in and
upon the contract site, including, but not limited to, construction
machinery, equipment And supplies of the Subcontractor and to use
the same to correct the complaint or to hove the complaint correctec
by subletting this work to others, and said construction machinery
and equipment os needed to be used to correct &aid work defl.c1enciu
shall be used by the Contractor or any subcontractor designated by
the Contractor to so use the same. The Contractor 6hall charge the
expense of the correcting work against said Subcontractor and de-
duct the same from the contract, and should the amount of payments
due on said contract be insufCicie'nt, to collect the said deCiciency
from the Subcontractor by legal process and/or surety company. or
its agents, by request or legal process, Upon correction of said
....ork, or the deficiency, the machinery and equipment of the Sub con-
tractor shall be delivered to Subcontractor, upon ootice, at the con-
tract site. Subcontractor shall supply skilled and experienced
employees ready and able to work in harmony ....ith the Contractor one!
with other prime contractors and subcontractors and/or their ~-
ployees, acceptable to the Contractor, the Owner and the Owner's
re presenta t i ves,
In performing the foregoing work the Subcontractor
shall furnish all Inbor. equipment, matedals, supplies and every-
thing necessary or incidentnl thereto or in connection with the
perfonnance by it of its ,",(Hk as required and called for under the
provisions of the Principal Contract. It is understood and agreed
- s -
by the parties hHeto that the qUllnt1ty of .....ork liS ,holo'll above
are approximate only and lire Bul;jl!ct to increase or decrease
and it is further undcretood that all quantities of work whether
inc reased or decl'ellscd arc to be performed at the unit price
above quoted and IIgrced upon snd thllt the Subcontractor, in all
events, shall be entitled to be pllid for that nlJlllher of unit.
finally determined upon by the Owner, if the Owner'l determina-
tion is not acceptable to the Subcontractor, the Contractor shall
app c al such det e nnina t ion to the extent 6uch is fe86ible IInd per-
lIlissable at the Subcontractor's written l'equest to do so and a~,
the Subcontractor's cost and expense.
5, TIME ALLOWED FOR CONSTRUCTION OF PROJECT - It 11
expressly understood IInd agreed by and bet.....een the parties hereto
tha t time is IInd shall be considered the essence of the contract
on che part of said Subcontractor Bnd should the said Subcontractor
fai 1 to begin, continue and complt'te the .....ork. as herein provided
and should the Contractor suffer or permit said Subcontractor to
occupy mOl'e time than required under this agreement, in that event
the said Subcontractor hereby covenants and agrees to indl!lllnify and
save harmless the said Contractor from any loss or damage which !Day
be compe 11 ed to make good to the Owne r , for or on sccount of de lay
in the completion thereof, insofar as said delay was caused by the
said Subcontractor. If the Subcontractor claims he i5 delayed in
the prosecution of his work through no fault of his 0\i1l and that
such delay i5 costly to him, he shall be entitled only to such COlli-
pensation for such delay as is allowed and paid for luch by the
O'Wner to tie Contractor to the extent such 11 attributable to the
Subcontractor's work. Any such claim by the Subcontractor shall
be submitted to the Contractor in writing, containing all pertinent
details, by the Subcontractor within ten (0) days of the alleged
delay. Fai lure of the Subcontractor to give such written notice
wi thin ten (10) days shall tenninate any right of the Subcontractor
to lDake such claim to the Contractor or the O\.mer.
6. CONDEMNATION OF WORK - The Subcontractor shall provide
suf ficlent, safe and proper facilities at all times Cor the inspec-
tion of the ....ork by the Project Engineer, Architect and the Contractor
or their authorized representative, for the inspection of the Sub-
contractor's ....ork and materials used or to be used, He shall, at
once, remove all materials, and take down and rebuild all portions of
the work condemned by the Project Engineer, the Architect and the
Contractor or their representative, upon receiving notice ln writing
of such condemnation.
7. EXTRA WORK - All ext lOll work to be performed by the
Subcontractor must he condensed' to writing And a rate of pay agreed
upon before such work 1& undertaken, Said extra work agreements
must be signed by representatives of the Contractor and Subcontractor
and will be subject to the tenns And conditions of this Subcontract
Agreement.
- 6 -
,.
8, Jl)~:MNn'IC^1'lON Ot' COtITHACIOH-I'ATWTS ANI) l'ATWr
R 1 GilTS - 'l'he SUhcoflt r lIC tor hHl!by C OVl! 1111 11 t S lInd IIfP'(> (!8 to
Indl!llllliCy and olive hormleBB the ContrActol' froID Any Ilnd all
clllIms or suIts hOlD Infdngeml!flts of pntl!nts or vIolatIon of
patent dghts, IncludIng /Ill costs /lnd expenses to whIch the
Contractor 1M)' 00 put In defendInB /In)' /JctIon that IDII)' adse through
the wOl'k of the Subcontracto~,
9, INDEHNU'ICATlON OF CONTRACTOR AND OWNER fROli ALL
LIABILITY - The Subcontractor shall have charge of the entire
work until completion and acceptance, lInd shall alone be 11able
for and shall pay all loss or damage cllused by him or by hie ser-
\' ants, agents or employees to property, buildIngs or adjacent work
and for any accident to persons that may occur during t~e per-
formance of the work covered by this Subcontract or at any timo
thereafter 05 0 consequence of the performance of said work. The
Subcontractor shllll observe /Ill stllte IInd municipality laws, ordi-
nances and reeulations /lnd sholl defend nnd save hllnDlen the Con-
tractor and the Owner frOlD 811 S\Jits Ilnd claims whlltsoever for loss
of life or injury occuning to e:nployces of the Subcontractor who
perform such work, The Subcontractor agrees to fully idemnify,
protect and save harmless the Contractor IInd the Owner from all li-
ability from all clal.ms, loss, damage, suits and actIons of every
\c. ind and from all costs and expenses in connection with such claw,
suits and actions due to injuries to persons or damage to property
whether resulting from accident, neglIgence or any other cause what-
soever occuring during the performance of the work covered by thil
Subcontract or at any time thereafter as a consequence of the per-
formance of the same or which may at any time occur or result frO':l
or be caused by such work and if there are any such claims unsettled
when the work herein provided for is completed, final settlement by
the Contractor and Subcontractor shall be deferred until such cl.ai!!ls
are adjusted or suitable special indemnity acceptable to the Con-
tractor is provided by the Subcontractor,
10. INSURANCE REQUIREMENTS - The Subcontractor shall take
ou t and pay for I
(a) Workmen's Compensation and Employer's Liability In-
surance in accordance with the laws of the State of Pennsylvania
and the Federal Statutes.
(b) Contractor's Public Liability and Property Damage In-
surance, Said policy of insurance will be written to provide for
the following limits $1,000.000.00 dollars for all
da.::lages arising out of bodily injuries to or death of one person,
/lnd subject to that limit for each person, 11 total of $1.000.000.00
dollars for all damages arising out of bodi ly injuries to or death
- 7 -
of t'tlO or more personB in anyone accident, and regular con-
tractors propl'l'ty dnmnge liability insurance providing for a
limit of not less than $1,000,000.00 dollars for all
damages arising out of injury to or destruction of property in
anyone accident and subject to that limit per accident, a total ,.
(or aggregate) limit of $1,000.000.00 dollars
for all damages arising out of injury to or destruction of
property during the policy period. This policy of insurance shall
be endorsed as followst to cover the explosives and collapse
hazards and injury to or destruction of wires, conduits, pipes,
Mainl, sewers, or other similar property, or any apparatuses in
connection therewi th, be low the surface of the ground, as Buch
injury or destl~ction is caused by and occurs during the use of
mechanical equipment for the purpose of excavating or drilling or
injury to or destruction of property at any tlme resulting there-
from.
(c) Public Linbility and Property Damage Insurance
covering the operation of any motor vehicle used by or for the
account of the subcontractor in connection with the work to be
performed under this Subcontract, Said policy of insurance will
be written to provide for the following minimum limitsl Bodily
Injury Liability $1,000,000.00 dollars each person
and $1,000,000.00 dollars each accident, Property
Damage Liability $1,000,000.00 dollars each accident,
The Subcontractor shall furnish to the Contractor three
(3) r.opies of the policy and three (3) certificates of insurance
for the following of the above mentioned policies,
(a) Workmen's Compensation.
(b) Contractors Public Liability and Property Damage
Liability Insurance.
(c) Public Liability and Property Damage Insurance
covering the operation of motor vehicles.
All of the above mentioned policies of insurance shall
said policies shall not be changed or cancelled until
written notice has been given to the Contractor.
11. TAXES _ The Subcontractor shall pay all the Pennsyl-
vania Sales and Use Taxes on all taxable items, and all Federal
Old Age Benefit Taxes, Federal Unemployment Compensation Insurance
on all labor furnished under this contract, as required by the
COl\1lDonwealth of Pennsylvania and the United States Government, as
well as Bny other taxes, Federal, State or Local, applicable to or
occasioned by the Subcontractor's performance of this contract or
employment of persons hereunder.
provide that
1~ days
- 8 -
..
12, cotnRAC'I" CO~\I'L I Allct: - The Subconl rIIcl or shall
hblJc by oil r~f~r~nced or idenlified prime conlract provision.
fOl' Federal oid projecls, Iltalut~s, rules, regulntions or pro-
ccclurCB oppl1l'/Ihle lh~reto 110 well os by all such pdlDe controct
provioions calling for obsel"vance of certain Pennsylvonia or
local otalutes, rules, regulations or procedurel ",!Iether or not
6pec1ficolly referred to in thls subcontract and ",!Iether or not
fOI'oS or certificates ore supplied to the Subcontractor to achieve
HICh compliance, without lilOitotion ouch lIIotters include Federal
and/or Stote non-discrimination provioions, ro-negotiation pro-
visions, IDinimulD wage provisions, /lnti kick-back provisionsi pay
day provisions, dnlly Rnd weekly overtime prov1eions, payro 1 de-
duc lion provi6ions, payroll classification and apprentice provi.ionl.
Payments undel' this subcontl'act may be withheld at any time to the
extent necessary to affect compliance with this .:>r any other article
o[ this sulJcontrnct. tloreover, the SulJcontractors sholl trialntsln
a record of the total cost of all moterials and supplies purchased
(or .lnd Incorpornted in the work and olso the quontities of those
s?ccific materials and supplies and in the units shown. Upon COill"
pletion of the subcontract, this record, together with the !inal
labor SllJlDD,1l"Y shnll be submitted to the State District Engineer, for
a 11 State and Federally IIssisted projects, for the project on the
St a te 's aPP1'opriatc fonn [or such or on a fonn Buppl ied by the prime
contractor In accordance 'With instl'uctions thereon, The quantltles
Cor the 1 isted items shall be reported separately for roadway and
[or st\"'\Jctures over twenty feet long as measured along the entire
center line of the roadway.
13. ASSIGNMENT OF SUBCONTRAl..'T - None of the rights under
th i s Subcontract, including assignment of funds, shall be assigned
by the Subcontractor wlthout prior written consent [rom the Con-
tractor. Any attempt to assign the SulJcontract will operate 86 an
ins tant forfeiture and repudiation thereof by the Subcontractor
and the rights o[ the parties shall be detennined in the same manner
as though the Subcontractor had at the time of such attempted 8uign-
ment Coiled and refused to continue to perfonn the contract.
14. EXTENSION OF TIME - No allowance of time ....ill be made
the Subcontractor for delay in preparing his drawings or, in secur-
ing appl"oval of the OWner nnd the Contr.lctor's engineers wTlen such
drawings are not properly l,repared [or Ilpproval of the O-.mer and the
Contractor's engineers,
f.xtensioll oC time to be gl"anted to the Subcontractor
wi 11 lJe the f.,1me only liS is granted to the Contractor by the OImer,
nnd will lJe in accordance with the Specifications in the Principal
Contract,
- 9 -
15. CON1'RA~~ AND I~BOR AND MATERIAL BONDS - The
Subcontractor furthcr agrecs that he will simultancously, with
the execution of this agreemcnt, provide the Contractor, if
requested, with a Contract Bond, covcring satisfactory' performance
of the work contracted, the penal sum of 100% of thc amount of
the Contract, and an "Additional Bond for Labor and Materials,"
covering the prompt payment in full for utility services rendered
to Bub-subcontractors Bnd for all materials furnished, rental
for equipment used, and/or labor supplied or performed, in the
prosecution of the work, and also in the pcnal sum of 100% of the
amount of the contract. Both bonds must also be executed by a
Corporate Surety satisfactory to the Contrac~or.
Payments under this subcontract may be withheld at any time
during the life of same for non-compliance with the above bonding
requirements.
16. TERMS OF PA~:NT - The Contractor agrees to pay the
Subcontractor his portion of all payments received by the ContrdctOr
from the Owner within Heven (7) days after receipt thereof. It is
also understood and agrecd that all cstimates shall include the
materials on thc site if so permitted by the Owner as a part of the
current estimates.
It is further understood and agreed that no payment on
account shall operate as an approval of said work or materials, or
any part thereof.
17. APPROVAL OF SUBCO~rRACT - It is understood and ageed
by the parties hereto that this agrcement is subject to the ap-
proval of same by the Owner.
It is also understood and agreed that this agreement is
subject to the principal Contract in its entirety, entered into
by the Contractor and the Owner, relating to this particular pro-
ject.
18. CONTRACTOR 'S RIGIITS TO WITHHOLD PAYMENTS-
IT IS UNDERSTOOD AND AGREED THAT THE SUBCONTRAC'WR
SHALL PAY -
(a) All employees unconditionally and not less
often th~n once a week.
(b) For all transportation and utility services
not later than the 10th day of the calendar month following that
in which said services are rendered.
- 10 -
,.
(c) For alllDaterlalu, toola, rentals, and
ot her expendable equlp:.1ent not later than the 10th day
of the cal(>ndal' month follo....ing that In which uid lDAterinh,
tools, rentals nnd equipment are delivered at the site of
the project,
A Contractor shall have the right to withhold payment.
from the Subcontl'actor, in addition to retain percentages u
lIlay be provided in the F'dnc1plll Contract, of .uch It:lounta ..
lIlay be necessary both to insure compliance with all of the terms
of this Contract by Subcontractor, for work perfonned by the
Cont ractor or other subcontractors in nccordance With paragraph
" of this Contrllct, and as necessary to pay all just claims for
1 abor and services. rental and m1lterials furnished in and about
slIid work, which is the obliglltion of the Subcontractor to pay.
The Contractor shall have the right, acting U /If-ent of the Sub-
cont ractor. to apply such retained IUDount to the paycents of such
just claims and for ....ork required to be pcrCol'"Qed.
19, SUBCONTRACTOR I S RELEASE TO CONTRACTOR - Upon rece ipt
of final payment, the Subcontractor does hereby agree to give the
Contractor a duly signed release relieving the Contractor frOal
any liability in regard to monies due under this Subcontract, and
the Subcontractor will certify that all of his obligations for
services, materials, equipment rental, tools, etc., incurred on
this Subcontract have been paid and that if ani liability .hou1d
occur on his behalf, then the Subcontractor iii 1 indemnify the
Contractor.
20. APPROVAL OF QUANTITIES - F'rior to the acceptance of
final quantities, the Contractor shall give five (5) days notice
of such quantities fo the Subcontractor for his approval.
21, PRIOR NEGOTIATIONS AND AGREEMENTS - All negot!at ions
end agreements prior to the date of this agree::lent are merged herein.
This Subcontract has been read and is fully understood by the Sub-
contractor.
The Contractor and the Subcontractor (or the::.st'lves, their
successors. executors, administrators Ilnd assigns. hereby agree
to the full performance of the covenants of this agreement.
22. TERMINATION - If prfrJe c.ontr,lctor's work is termina-
ted or abllndonn.d, if Subcontr.lctor cannot work in harmony with
other Contractors, Subcont ractors or their employees, is in breach
~ 11 -
COHEN & HUNTINGTON, p,c.
-......
Post omce Bo. 59....9
SuIte 818
1515 Matkft SIred
PhlJaddphJa, 1'n1nA~ 19102
~OY & COllIN
mPIIIN N. IfUN11NGTON
SI1VIN I\. WAXlMN
!MlIIIL D. HOOOI.}J.
~ODIJlT L raAMalN
(11'1'6"'700
',\ll(m56ol'~
10 JaNGSIOGHWAY WISf
HADDOHrIILD, NJ OIOn
(609) \~32C)9
JOHN A. Ga.uMIAIJ. .
WWJAM D. )AMI5ON ,
GlOMI!. PA1J.A5 '
~ODlllTA M. ntANXII. '
JOSIPIII WA55IL '
March 1, 1994
0' COIJNIEL
. . A.IJ5A 0, fI!LD
. AUO ADMmII) IN NJ
.. AUO ADMITIID IH DC
Mr, Norman Blair
Bond Claims Division
National Union Fire Insurance company
of Pittsburgh, PA
70 Pine Street
New York, New York 10270
RE. Ad&IU County Asphalt Company ("ACA")
Bond No. 10-61-59
projectsl Interstate 81
Claimant I Kee-Ta-Quay Construction
Dear Norman:
Enclosed please find pay estimate 1118 along with copies of
cancelled checks, As you can see, check number 21194 is in the
amount of $33,616,01 and check number 021807 is in the amount of
$1,529,20. Additionally, enclosed are copies of the original
checks and memos submitted by ACA to Kee-Ta-Quay,
You have advised ACA that Kee-Ta-Quay has submitted a claim
against the above-captioned bond in the amount of $11,707,50,
Initially, please note that ACA has been paid $16,230,05 for work
done by Kee-Ta-Quay on this project, As you can see from the memo
for check number 21194, $8,950,85 of the total amount of the check
was for payment on this proj ect. The checks show that ACA has paid
Kee-Ta-Quay $10,480,05 for this project. Thus, the amount now due
Kee-Ta-Quay is $5,750,00. ACA is currently processing this amount
for payment.
Any additional sums claimed by Kee-Ta-Quay will not be paid by
ACA at this time. The basis for this decision is that ACA has not
been paid by PennDOT for the items which Kee-Ta-Quay is including
in its claim. As you know, there is a clause in ACA's subcontract
with Kee-Ta-Quay which states that, "the contractor agrees to pay
the subcontractor his Dortion of all payments received by the
contractor from the owner," Since ACA has not received any
additional monies from PennDOT, it cannot pay Kee-Ta-Quay thefadditional money it is seeking in its claim.
PARTIAL RI!LIlASIl
KNOW ALL MEN IlY THESE PRESENTS, that JI:!lIl-TA QUAY has submitted a
claim against Payment Bond Number 10-61-59 in the amount of
$11,707.50, For and in consideration of the sum of FIVE THOUSAND AND
SEVEN HUNDRED FIFTY DOLLARS ($5,750,00), receipt of which is hereby
acknowledged, JI:!lIl-TA QUAY does hereby remise, release and forever
discharge ADAMS COUNTY ASPHALT COMPANY (IIACA") and NATIONAL UNION PIRIl
INSURl\.NCIl COMPANY OJ' PITTSBURGH, PA. (IINUII), their agents, employees,
officers, directors, partners, predecessors, SUbsidiaries, divisions,
affiliates, successors and assigns and each of them of and from any
and all manners and causes of action, debts, suits, dues, accounts,
bonds, covenants, contracts, agreements, judgments, claims and demands
whatsoever, in law or in equity including, but not limited to
$5,750,00 of the $11,707.50 claim on:
The Route 81 Rest Area project 8R-0081-R12
which against the said ACA or NO, their agents, employees, officers,
directors, partners, predecessors, subsidiaries, divisions,
aftiliate~, successors and assigns and each ot them, the said Itee-Ta-
Quay, its successors and assigns, or any of them, now has, ever had,
or hereinafter can, sha~l or may have, for or by reason ot any cause,
matter or things whatsoever from the beginning of the world to the
date of these presents but only to the e.tent of $5,750.00.
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned hereby sets its hand and seal this day of
1994.
"1 tne...
ItBIl-TA-QUAY
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4. Admitted in part. Denied in part. It is admitted that ACA
submitted a bid to Pennsylvania Department of Transportation
(lIPennDO'l'lI). However, the bid is a writing which speaks for itself and
any characterization or interpretation thereot is expressly denied.
5. Denied. The bid and ACA's contract with PennDot are writings
which speak tor themselves and any characterization on interpretation
thereof is expressly denied.
6. Admitted.
1. Admitted in part. Denied in part. It is admitted that ACA
turnished a payment bond tor the protection ot claimants supplying labor
and/or materials on the Project and a performance bond to ensure ACA's
performance of their contract work. However, the payment and
pertormance bonds and ACA's contract with PennDot are writings which
speak tor themselves and any characterization or interpretation thereot
is expressly denied.
8. Admitted in part. Denied in part. It is admitted that in
July 1992, ACA entered into a subcontract with Kee-ta Quay. The
Subcontract is a writing which speaks for itself and any
characterization or interpretation thereof is expressly denied.
9. Denied. The Subcontract is a writing which speaks tor itselt
and any characterization or interpretation thereof is expressly denied.
10. Admitted in part. Denied in part. It is denied that Kee-ta
Quay performed 3985 lt ot plain cement concrete curb. Rather, it is
alleged that Kee-ta Quay pertormed 3895 1f ot plain cement concrete
curb. It is turther denied that Kee-ta Quay has performed its work in
2
accordance with the ACA/Kee-ta Quay Subcontract. On the contrary, Kee-
ta Quay has tailed and refused to pay one of its suppliers on the
projeot as required by the subcontract and tailed to complete its work
in a timely manner. The remaining allegations in this paragraph are
admitted.
ll. Admitted in part. Denied in part. It is admitted that
PennDot processed the above-mentioned work for payment. However, as a
result ot the fact that PennDot defaulted ACA on the project, resulting
in litigation between ACA and pennDot, ACA is without sufficient
knowledge or information to torm a belief as to the truth of the
allegation that PennDot inspected and approved all of Kee-ta Quay's work
and therefore denies the same. By way of further answer, section 110.05
ot the pennsylvania Department of Transportation ("PennDot"), 408
specitications which were incorporated into the contract between ACA and
PennDot provides that partial progress payments to the contractor do not
mean that PennDot accepted or approved the material furnished or work
porformed.
12. Admitted in part. Denied in part. It is admitted that
PennDot shut down the project on October 13, 1993. However, the
statement that the detaulting of ACA was through no fault of Kee-ta Quay
is a conclusion of law to which no response is required. By way of
turther answer, it is specifically denied that PennDot's detaulting ot
ACA was through no fault of Kee-ta Quay. In fact, one of the reasons
given for ACA's default was its untimely performance of work on the
project. In as much as Kee-ta Quay did not perform its Subcontract work
on the Project in a timely fashion, it contributed to ACA's detault.
3
13. Admitted in part. Denied in part. It is admitted that ()n
October 13, 1993, PennDot advised National Union that PennDot had
detaulted ACA. However, that correspondence is a writing whic,\ speaks
for itselt and any characterization or interpretation thereof. is denied.
14. Admitted.
US. Admitted.
16. Admitted in part.
paid Kee-ta Quay $10,480.05.
Denied in part. It is admitted that ACA
It is specitically denied, however, that
there is a balance ot $5,750.00 due and owing Kee-ta Quay.
17. Admitted upon intormation and belief.
18. Admitted upon information and beliet.
19. Admitted upon intormation and belief.
20. Admitted upon information and belief.
21. Admitted in part. Denied in part. It is admitted that Kee-ta
Quay was not paid tor this interest. It is specifically denied that
this interest is due and owing Kee-ta Quay since Kee-ta Quay has failed
and retused to pay one ot its suppliers on the Project as required by
the Subcontract.
COUNT I - BREACH or CONTRACT
22. ACA incorporates paragraphs 1 through 21 above as though set
forth at length herein.
23. Admitted in part and denied in part. It is admitted that
Kee-ta Quay supplied labor and materials to ACA on the Project beginning
May 24, 1993. However, it is denied that Kee-ta Quay supplied labor and
materials to ACA in accordance with the ACA subcontract.
4
:14. Denied. The allegations set torth in this paragraph are
oonolusion. ot law to which no response is required. By way at turther
answer, ACA denies that Kee-ta Quay iB entitled to payment irl tull and
that Kee-Ta Quay tully pertormed its work under the ACA Subcontract
becau.e Kee-Ta Quay has not paid all at its suppliers on the project as
required by the Subcontract nor did Kee-ta Quay perform its work in a
timely manner as required by the subcontract.
25. Admitted in part. Donied in part. It is admitted that ACA
has paid Kee-ta Quay $10,480,05 tor the work performed and tho materials
supplied on the Project since that was the amount that ACA was paid by
PennDot. It is specifically denied, however, that there is a balance
due and owing Kee-ta Quay at $5,750.00. On the contrary, ACA does not
owv that money to Kee-Ta Quay because Kee-Ta Quay has not paid allot
its suppliers on the Project as required by the Subcontract and ACA is
withholding this money as it is permitted to do under the Subcontract.
26. Admitted in part. Denied in part. It is admitted that ACA's
counsel torwarded the correspondence to National Union and Kee-ta Quay
which are attached to Plaintitf's Second Amended Complaint as Exhibits
B-E. However, said correspondence are writings which speak tor
themselves and any characterization or interpretation thereot is
expressly denied. By way ot further answer, said correspondence were
all prior to litigation and were otters ot settlement. However,
subsequent to allot the correspondence attached as Exhibits B-E, it was
discovered that Kee-ta Quay did not pay its supplier, McDermitt
Concrete, Inc.
5
27. Admitted in part. Denied in part. It is admitted that ACA
has retus.d to pay Kee-ta Quay $5,750.00 and any interest on that
amount. It is specitically denied, however, that that money is due and
owing Kee-ta Quay as a result of their breach of the Subcontract by
tailing to pay a supplier.
28. Denied. Rather, ACA is entitled by the Suboontraot to
withhold this money from Kee-ta Quay because they failed to pay one of
their suppliers.
29. Admitted in part. Denied in part, It is admitted that ACA
has not paid Kee-ta Quay $5,750,00 or any interest on that amount. It
is specitically denied, however, that this money is due Kee-ta Quay.
WHIRI~OR., Adams County Asphalt Company respectfully requests that
this Honorable Court enter judgment in favor of Adams County Asphalt
Company and against Kee-ta Quay Construction and award Adams County
Asphalt company interest, attorney's fees and costs of suit.
COUNT II - INTEREST
NATIONAL UNION ~IRB INSURANCI CO. IIN THI ALTIRNATIVII
30. ACA incorporates paragraphs 1 through 29 above as though set
torth at length herein.
31. The allegations in this paragraph are conclusions of law to
which no remponse is required. By way of further answer, the
Subcontract is a writing which speaks for itself and any
characterization or interpretation thereot is expressly denied.
32. The allegations in this paragraph are conclusions ot law to
which response is required.
6
33. The allegations in this paragraph are conclusions at law to
which no response is required, By way of further answer, it is denied
that ACA owes Kee-ta Quay $2,142.90 in interest because Kee-ta Quay
breaohed the subcontract by failinq to pay one of its suppliers.
34. The allegations in this paragraph are conclusions of law to
which no response is required, By way ot turther answer, ACA denies
that Kee-ta Quay is entitled to this interest,
35. Admitted in part. Denied in part. It is admitted that ACA
has retused to pay this interest. It is specifically denied that this
interest is due Kee-ta Quay as a result of the fact that the Subcontract
entitles ACA to withhold money from Kee-ta Quay as a result its failure
to pay a supplier.
WHIRIlrORI, Adams county Asphalt company respectt1l11y requests that
this Honorable Court enter judgment in favor of Adams county Asphalt
Company and against Kee-ta Quay construction and award Adams County
Asphalt Company interest, attorney's fees and costs of suit.
HI. HATTER
36. ACA incorporates paragraphs 1 through 35 above as though set
torth at length herein.
37. Kee-ta Quay has failed to state a cause of action upon which
reliet C4n be granted.
38. Kee-ta Quay's claim is barred by the statute of Limitations.
39. Kee-ta Quay's claim is barred by the statute of Frauds.
40. Kee-ta-Quay's Complaint is barred by the doctrine of waiver
and/or estoppel.
41. Kee-ta Quay's claim is barred by the doctrine of accord and
satisfaction.
7
cmRTI.IC~TIOK O. SmRVICm
I, amKmm KXLGARRX.., m8QUIRI, attorney tor Plaintitt, Ada.e
county Asphalt company, do hereby certity that I have served a true
and correct copy ot the Second Amended complaint and New Matter on
september 19, 1996 by U.S. Regular Hail, as tolloWSI
David Francis, Esquire
Michael W. wintield, Esquire
powell, Tracht.an, Loqan
Carrle i Bowman, ,.C.
114 North Second street
Harrisburg, PA 17101
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