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DANEL M. HOBRIGAN
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CLERK OF CO Sy THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
MICHIGAN PRECISION GRADING, ) CASENO.: CV 2011 073930
LLC )
) JUDGE ROWLANDS
Plaintiff, )
)
vs. )
) DEFENDANT THE UNIVERSITY OF
QUALITY ASBESTOS & ) AKRON?S SECOND
DEMOLITION SERVICES, LLC, et ) SUPPLEMENTAL MOTION FOR
al. ) PARTIAL SUMMARY JUDGMENT
) (ORIGINAL FILED JANUARY 18,
Defendants. ) 2012)
)
Defendant The University of Akron (“the University”) moves this Court for Summary
Judgment. As a matter of law, the University’s $331,598.76 claim against the penal amount of
the bid, performance and payment bond (“the Bond”) is entitled to a priority over all other Bond
claimants. Based on the clear and unambiguous terms of the Bond and Construction Contract,
the University’s property damage is, as a matter of law, a proper claim against the penal amount
of the Bond.
This motion is supported by the pleadings, the attached memorandum in support, the
Affidavit of David J. Pierson (“Supplemental Pierson Aff.”), the University’s Motion for Partial
Summary Judgment filed on January 18, 2012 (“Original Motion for Summary Judgment’) and
Mr. Pierson’s Affidavit in support of the Original Motion for Summary Judgment (“Original
Pierson Aff.”). The Original Motion for Summary Judgment and Original Pierson Affidavit are
attached hereto as Appendices 1 and 2 and are incorporated herein by reference as if fullyrewritten. The facts and legal arguments of the University’s Original Motion for Partial
Summary Judgment are incorporated in this Second Supplemental Motion for Partial Summary
Judgment.
BUCKINGHAM, DOOLITTLE & BURROUGHS, LLP
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Frederick M¢ Lombardi #0023474
John L. Reyes #0023508
Joshua D. Nolan #0084592
3800 Embassy Parkway, Suite 300
Akron, OH 44333-8332
(330) 376-5300 (Telephone)
(330) 258-6559 (Facsimile)
flombardi@bdblaw.com
jreyes@bdblaw.com
jnolan@bdblaw.com
Attorneys for Defendant
The University of AkronMEMORANDUM IN SUPPORT
IL STATEMENT OF FACTS AND OF THE CASE
This is a dispute between unpaid laborers and material providers and their general
contractor Quality Asbestos & Demolition Services, LLC (“Quality Asbestos”) and Quality
Asbestos’ surety American Contractors Indemnity Company (“ACIC”) for work performed on a
public improvement on the University’s main campus.’ The remaining parties in this litigation,
including the University, have made claims against the Bond.? The University’s claim is entitled
to priority over the remaining Bond claimants.’ The University’s claim includes the cost to
complete in the sum of $262,000 and nearly $70,000.00 in property damages.* These property
damages are proper claims against the Bond.°
The Original Motion for Summary Judgment and Original Affidavit chiefly addressed the
cost to complete the demolition of Memorial Hall. This Supplemental Motion for Summary
Judgment and Supplemental Affidavit address the payment from the penal amount of the Bond
of both the cost to complete and the property damages.
A. Quality Asbestos was terminated for breaching the Construction Contract.
The University entered into a series of contracts (the “Construction Contract”) with
Quality Asbestos for the asbestos abatement and demolition of Memorial Hall on the
* See Ohio Revised Code §§1311.26, 1311.28, 1311.29 and 1311.32.
? A true and accurate copy of the Bond is attached as Exhibit A to the Supplemental Pierson Aff. in support of
Supplemental Motion for Summary Judgment.
3 See the University’s Original Motion for Partial Summary Judgment (filed on January 18, 2012) at pp. 4-6.
* See Supplemental Pierson Aff. at §f 11-14.
* The University filed a Third-Party Complaint against Quality Asbestos’ insurance company, Endurance American
Specialty Insurance Co. On August 17, 2012, the University filed a Motion for Default Judgment against the
Company,University’s campus (the “Memorial Hall Project”). Pursuant to Ohio law, ACIC provided
Quality Asbestos and the University with bid, performance and payment bonds totaling
$412,000.’ The Bond related to the demolition portion of the Memorial Hall Project has a penal
amount of $350,000. The asbestos abatement portion of the Memorial Hall Project was
completed and accepted by the University.
A number of significant problems arose with the Quality Asbestos’ performance in the
Memorial Hall demolition project and, after proper notice, the University terminated Quality
Asbestos as the Memorial Hall Project’s general contractor on January 24, 2011 3
Quality Asbestos breached its contractual obligation under the General Conditions of the
Construction Contract, including its obligation to protect the worksite and adjacent property from
damage:
24 Protection of the Project
2.4.1 The Contractor shall protect the Work from weather and maintain
the Work and all materials, apparatus, and fixtures free from injury
or damage until Final Acceptance, or Partial Occupancy if
applicable,
Jl The Contractor shall at all times cover or protect the Work.
2 The Contractor, at its expense, shall remove, and replace
with new, any Work damaged as a result of the Contractors
failure to provide coverage or protection.
3 The Contractor, at its expense, shall repair or replace any
adjacent property, including, but not limited to, roads,
walks, shrubbery, plants, trees, or turf, damaged during the
performance of the Work.
4 After the date of Final Acceptance, or Partial Occupancy if
® A true and accurate copy of relevant portions of the Construction Contract are attached as Exhibit B to the
Supplemental Pierson Aff. The contract documents are voluminous and therefore only portions have been provided
to the Court. The University will provide a complete set of contract documents upon request.
T See Affidavit of J. Pierson attached to the University’s Original Motion for Partial Summary Judgment filed
January 18, 2012 (Original Pierson Aff.) at §§2-S and Exhibits C and D to the University’s Original Motion for
Partial Summary Judgment.
* Original Pierson Aff. at [6, Exhibit E of the University’s Motion for Partial Summary Judgment.applicable, the Owner is responsible for protecting and
maintaining all materials, apparatus, and fixtures for the
occupied portion of the Project free from injury or damage.
2.4.2 The Lead Contractor shall protect the Project and existing or
adjacent property from damage at all times and shall erect and
maintain necessary barriers, furnish and keep lighted necessary
danger signals at night, and take reasonable precautions to prevent
injury or damage to individuals or property.
General Condition Section 2.4-2.4.2 attached as Exhibit B to the Supplemental Pierson Aff.
Additionally, General Conditions Section 2.5 (Materials and Equipment) required Quality
Asbestos to “not allow materials or equipment to damage the Project or adjacent property nor to
endanger any individual at, or near, the Site.” It failed to do so.?
Quality Asbestos’ damaged University property including building windows, sidewalks,
trees, electric conduit, lampposts and utilities infrastructure. The University suffered $69,598.76
property damages. The cost of repairing and replacing the University’s damaged property is as
follows:
© Replacement of broken windows $ 5,500.00
© Repairs to sidewalks $ 3,400.00
¢ Repair and replacement of copper piping $ 39,000.00
¢ Repair and replacement of electrical conduit and router $ 19,700.00
© Replacement of two light posts $1,998.76
Total $69,598.76
The University informed ACIC of these damages after Quality Asbestos’ termination.'°
B. Bob Bennett Construction Company, Inc. was the successful bidder on the
contract to complete the Memorial Hall Project.
After the University terminated Quality Asbestos and the completion of the Memorial
° Supplemental Pierson Aff. at { 6.
'© Sce Supplemental Pierson Aff. at | 7. The University, through its counsel, also made repeated demands on
Endurance American Specialty Insurance Co. for payment under Quality Asbestos’ insurance policy on which the
University is a named insured party. The University filed a Third-Party Complaint against the insurance company.
On August 17, 2012, it filed a motion for default judgment when the insurance company failed to appear. See
docket.Hall Project was rebid, the project was let to Bob Bennett Construction Company, Inc. (“Bob
Bennett Construction”). Bob Bennett Construction’s contract included the completion of the
demolition work and repairing the damages to the University buildings and property resulting
from Quality Asbestos’ failure to perform its obligations under the Construction Contract.!! Bob
Bennett Construction costs were $67,600 to repair all of the damages except for the light posts.
The University, on its own, replaced the two light posts at a cost of $1,998.76.’ The total cost to
the University for these repairs was $69,598.76."9
Bob Bennett Construction’s bid to complete the demolition and repair the damages was
$332,800.'4 Because the University replaced the light posts at it own expense, and, thus, not
included in the Bob Bennett Construction Bid, Bob Bennett Construction’s total cost to complete
the Memorial Hall Project, including making all the repairs described above, was $329,600.'
Cc Quality Absestos’ termination triggered the University’s rights under the
Bond.
The Bond for the demolition of Memorial Hall, requires Quality Asbestos to “well and
faithfully perform each and every condition of [the Construction Contract]; and indemnify the
[University] against all damage suffered by failure to perform such [Construction] [C]ontract
according to the provisions thereof and in accordance with the contract documents * * *.”!° The
Bond is not limited to the performance of the scope of work on the project. Rather, it includes
all obligations under the Construction Contract.”
The University’s termination of Quality Asbestos triggered ACIC’s obligations under the
" Supplemental Pierson Aff. at 10.
” Supplemental Pierson Aff. at § 11.
8 id. at 7.
id at G12.
Sid at G13.
'S See Exhibit A.
"7 See Exhibit A.Bond.'® About the time that Quality Asbestos was terminated, the University began receiving a
notice that Quality Asbestos had not paid some of its contractors.
D. Quality Asbestos’ unpaid subcontractors file liens on the University’s
construction funds and then file suit.
As described in more detail in the University’s Original Motion for Partial Summary
Judgment, Plaintiff Michigan Precision Grading, LLC (“Michigan Precision”), Defendant
Gibson Machinery, LLC (“Gibson Machinery”) and Defendant Ohio Machinery Company dba
Ohio CAT (“Ohio CAT”) served and filed affidavits of attested accounts to establish liens
against the public funds remaining in the University’s construction account pursuant to R.C.
§1311.26 and 1311.29.° The University retained the entire amount of the construction funds
remaining for the Memorial Hall Project ($156,673.77).
On July 20, 2011, Michigan Precision filed its Complaint against Quality Asbestos, the
University, ACIC and the other unpaid subcontractors. Michigan Precision’s claims included
breach of contract action against Quality Asbestos, lien foreclosure on the public funds retained
by the University and declaratory judgment to determine the validity and priority of the parties’
claims against the public funds and the Bond.
On January 18, 2012 the University filed its Original Motion for Partial Summary
Judgment asserting that (1) Ohio CAT, Michigan Precision and Gibson Machinery have a valid
lien against the public funds maintained in the construction account ($156,673.77); and (2) that
the University is entitled to a priority over all other claims against the penal amount of the
8 See Original Pierson Aff. at 99; see, also, Exhibit D and F to University’s Original Motion for Partial Summary
Judgment.
° Original Pierson Aff. at 448-14.
? See the University’s Original Motion for Partial Summary Judgment at p.4-6.
2! The University’s Original Motion for Partial Summary Judgment at p.4.
2 See Complaint filed July 20, 2011.Bond.”3
On January 31, 2012, Ohio CAT dismissed its claims against Quality Asbestos and the
other parties in this case.** This terminated Ohio CAT’s claim against the Bond.°
On February 24, 2012, the Gibson Machinery and Michigan Precision, the remaining
claimants against the public funds, filed a joint motion of distribution in which Gibson
Machinery requested that it receive $21,172.14 of its original $73,200 claim and that Michigan
Precision receive $135,501.63 of its original $156,673.77 claim against the public funds.
On the same day, the University supplemented its Motion for Partial Summary Judgment
withdrawing the portion of the Motion for Summary Judgment where it identifies the lien
claimants and the amounts of pro rata distribution of the public funds. Also on the same day,
Michigan Precision filed an opposition to the University’s Original Motion for Partial Summary
Judgment arguing that The Cleveland Builders Supply & Brick Co. v. Village of Garfield Heights
case was inapplicable to the facts here and, thus, the University was not entitled to a priority.
Michigan Precision’s opposition to the University of Akron’s Motion for Partial Summary
Judgment filed on February 24, 2012, On March 12, 2012 the University filed a reply to
Michigan Precision’s opposition.
On March 27, 2012, the Court adopted the amounts stipulated by Gibson Machinery and
Michigan Precision in a distribution order requiring the University to distribute the public funds
per the Court’s Order. See Order distributing the retained funds dated March 27, 2012. The
University complied with the Order and distributed the funds to Gibson Machinery and Michigan
Precision.
3 See University’s Original Motion for Partial Summary Judgment; see also The Cleveland Builders’ Supply &
Brick Co. v. Village of Garfield Heights, 116 Ohio St. 338, 156 N.E. 209 (1927).
* See Notice of Partial Dismissal filed January 31, 2012.
* See id.The Court has yet to rule upon the issue of whether the University is entitled to a priority
over the other claimants as it relates to the penal amount of the Bond. On June 5, 2012 the
University obtained a default judgment in the amount of $330,998.76 against the defaulting
contractor, Quality Asbestos.
I LAW AND ARGUMENT
A Both the Construction Contract and the Bond are clear and unambiguous
and as a matter of law the University’s property damages can be recovered
from the penal amount of the Bond.
Based on the discovery requests received from Michigan Precision, the University
anticipates that Michigan Precision and the other bond claimants will argue that the University’s
property damages are outside the scope of work of its original contract with Quality Asbestos
and, therefore, the University is unable to recover those damages from the penal amount of the
Bond. This argument is misplaced.
In fact, Quality Asbestos and ACIC have a clear and unambiguous contractual obligation
to protect the University from property damage and agreed to pay for these damages. The
contract language in both the Construction Contract and the Bond expressly and unequivocally
support this conclusion?” Because the contract terms of the Construction Contract and the Bond
are clear, a factual determination is unnecessary.” The Court as a matter of law can review the
contract provisions of the Construction Contract and the Bond and find in favor of the
University.”*
The Bond protects the University from any damages resulting from Quality Asbestos’ .
?6 Judgment Order dated June 5, 2012.
7 See Andrefsky v. Shapiro, 9th Dist. No. 22052, 2004-Ohio-7174 citing Refuse Transfer Co. v. Browning-Ferris,
15 Ohio St.3d 321, 322, 474 N.E.2d 271 (1984) (recognizing that if a contract is clear and unambiguous, then its
interpretation is a matter of law and there is no issue of fact to be determined within the context of summary
judgment).
Refuse Transfer Co. v. Browning-Ferris, 15 Ohio St.3d 321, 322, 474 N.E.2d 271 (1984).
See Jd.breach of the Construction Contract.?° Similarly, the Construction Contract’s language clearly
outlines Quality Asbestos’ obligations.>!
Quality Asbestos was obligated “repair or replace any adjacent property, including, but
not limited to, roads, walks, shrubbery, plants, trees, or turf, damaged during the performance of
the Work.” It was also required to protect and repair the work site” There is no dispute that
Quality Asbestos failed to do so.
As a matter of law, the University’s property damages can be recouped through a claim
against the penal amount of the Bond.” The Bond expressly permits the University to be made
whole for Quality Asbestos’ failure to perform under the Construction Contract.
The University respectfully requests that this Court find that the University is entitled to a
priority over all other claimants to the Bond.** And that the clear and unambiguous language in
the Construction Contract and the Bond, as a matter of law, permit the University to recover its
claim against the Bond the $69,598.76 in property damages as well as the cost to complete the
Memorial Hall Project in the sum of $262,000.
Respectfully submitted,
BUCKINGHAM, DOOLITTLE & BURROUGHS, LLP
~“Frederfck M. Lombardi #0023474
John L. Reyes #0023508
Joshua D. Nolan #0084592
3800 Embassy Parkway, Suite 300
Akron, OH 44333-8332
(330) 376-5300 (Telephone)
(330) 258-6559 (Facsimile)
°° See Exhibit A.
3! See Exhibit B.
» See Sections 2.4.2 and Section 2.5 of the General Conditions. (Exhibit B).
* See Andrefsky v. Shapiro, 9th Dist. No. 22052, 2004-Ohio-7174.
* See the University’s Original Motion for Partial Summary Judgment.
10flombardi@bdblaw.com
jreyes@bdblaw.com
jnolan@bdblaw.com
Attorneys for Defendant
The University of Akron
11CERTIFICATE OF SERVICE
A copy of the foregoing was served by regular U.S. mail, postage prepaid, this zt day of
August, 2012, upon the following:
Joseph R. Spoonster, Esq.
Fortney & Klingshirn
4040 Embassy Parkway, Suite 280
Akron, Ohio 44333
Attorney for Plaintiff
Lee M. Brewer, Esq.
Justin D. Owen, Esq.
Alber Crafton, PSC
501 West Schrock Road, Suite 104
Westerville, Ohio 43081-8036
Attorneys for Defendant/Cross-Claimant/
Third-Party Plaintiff American Contractors
Indemnity Company
Bradley L. Greene, Esq.
75 Public Square, Suite 920
Cleveland, Ohio 44113
Attorney for Defendant Ohio Machinery
Steven L. Yashnik, Esq.
3250 West Market Street, Suite 14
Akron, Ohio 44333
Attorney for Defendant S. A. Comunale Co.,
Ine.
Basil W. Mangano, Esq.
Ryan K. Hymore, Esq.
Mangano Law Offices
2245 Warrensville-Center Road, Suite 213
Cleveland, Ohio 44118
Attorney for Defendant Laborers’ Local 894
@AK3:1108635_ v1»
Quality Asbestos & Demolition Services, LLC
300 Atlantic Street
Bay City, MI 48708
Defendant
David Arnold, Esq.
Weston Hurd LLP
The Tower at Erieview
1031 East Ninth Street, Suite 1900
Cleveland, Ohio 44114-1862
Attorney for Defendant/Cross-Claimant
Gibson Machinery, LLC
Stanley E. Stein, Esq.
Robert A. Gaffney Jr., Esq.
Stanley E. Stein & Associates Co., LPA
75 Public Square, Suite 714
Cleveland, Ohio 44113-207
Attorneys for Defendant Ohio Machinery
James C. Carpenter, Esq.
Steptoe & Johnson PLLC
Huntington Center, Suite 2200
41 South High Street
Columbus, Ohio 43215
Attorney for Defendant Company Wrench LLC
Db.
Ur 7
12IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
MICHIGAN PRECISION GRADING, LLC) CASE NO.: CV 2011 07 3930
)
Plaintiff, } JUDGE ROWLANDS
)
vs. )
)
QUALITY ASBESTOS & DEMOLITION ) AFFIDAVIT OF DAVID J, PIERSON
SERVICES, LLC, et al. ) IN SUPPORT OF THE UNIVERSITY
) F AKRON’S SECOND
Defendants. ) SUPPLEMENTAL MOTION FOR
) PARTIAL SUMMARY JUDGMENT
STATE OF OHIO )
ss.
COUNTY OF SUMMIT __ )
1, David J. Pierson, for my Affidavit, testify as follows:
1. 1 am over 21 years of age, and I have personal knowledge of the facts sworn to
herein unless stated upon information and belief.
2. 1 am a resident of Summit County.
3. 1 am the Assistant Vice President of Capital Planning and Facilities Management
for The University of Akron. 1 am responsible for the oversight of major construction projects
on campus, including the asbestos abatement and demolition of Memorial Hall (the “Memorial
Hall Project”).4, The University of Akron (the “University”) contracted with Quality Asbestos &
Demolition Services, LLC (“Quality Asbestos”) as a general contractor on the Memorial Hall
Project in May of 2010.
5. A true and accurate copy of the bid, payment and performance bond (the “Bond”)
provided by Quality Asbestos is attached as Exhibit A. True and accurate copies of the relevant
portions of the University’s Construction Contract with Quality Asbestos are attached to this
Affidavit as Exhibit B.
6. Quality Asbestos breached its contractual obligation under the General Conditions
of the Construction Contract, including its obligation to protect the worksite and adjacent
property from damage. See Exhibit B Sections 2.4 and 2.5. General Conditions Section 2.5
(Materials and Equipment) required Quality Asbestos to “not allow materials or equipment to
damage the Project or adjacent property not to endanger any individual at, or near, the Site.” It
failed to do so.
7. Quality Asbestos damaged University property including building windows,
sidewalks, trees, electric conduit, lampposts and utilities infrastructure. The University suffered
$69,598.76 in property damages as outlined in this chart:
e Replacement of broken windows $ 5,500.00
e Repairs to sidewalks $ 3,400.00
e Repair and replacement of copper piping $ 39,000.00
Repair and replacement of electrical conduit and router $ 19,700.00
Replace lamp posts $ 1,998.76
8. The University informed Quality Asbestos’ surety American Contractors
Indemnity Company (“ACIC”) of these damages after Quality Asbestos’ termination on January
24, 2011.9. After the University terminated Quality Asbestos and the completion of the
Memorial Hall Project was rebid, the project was let to Bob Bennett Construction Company, Inc.
(“Bob Bennett Construction”).
10. Bob Bennett Construction’s contract included the completion of the demolition
work and repairing the damages to the University buildings and property resulting from Quality
Asbestos’ failure to perform its obligations under the Construction Contract.
11. Bob Bennett Construction costs were $67,600 to repair all of the property
damages except for the light posts. The University, on its own, replaced the two light posts at a
cost of $1,998.76.
32. Bob Bennett Construction’s bid to complete the Memorial Hal! Project and repair
the damages was $332,800.
13. Bob Bennett Construction’s total cost to complete the Memorial Hall Project
including repairs was $329,600.
14. The total cost to complete the Memorial Hall Project and repairs the University’s
property damages is $331,598.76.
FURTHER AFFIANT SAYETH NAUGHT.
Sworn to before me and subscribed in my presence at Akron, Ohio, this @Y_ day of
August, 2012.
eAR3:1111652_vb>
BARBARA A FULLER, Notary Public
Residence « Sunmit Couary
State We Jurisécton, Ohio
F My Commission Expires March 22. 2014Bid Bond No. 1000778872-69
Document 00 43 13 - Bid Security Form Ohi@aAS.
Ohio Department of Administrative Services www.ohio.gow/sao
e: StateArchOM@das,state.oh.us
General Services Division
State Architect’s Office + 4200 Surface Road + Columbus, Ohio 43228-1395 v: 614.466.4761 + f: 614.644.7982
FORM OF BID GUARANTY AND CONTRACT BOND
(As prescribed by Ohio Reviserl Code Section 153.571)
KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned
Qality Asbestos & Demolition joe
, as Principal, at
300 Atlantic Street, Bay City, Michigan 48708 (Address)
and American Contractors Indemnity Company as Surety, are hereby heid and firmly bound
unto the State of Ohio, as Obligee, in the penat sum of the dollar amount of the Bid submitted by the Principal to
the Obligee on (date) June 1, 2030 to undertake the Project known as:
Project Number: __ 100019
Memorial Hall Demolition
Project Name:
Contract Description: Demolition
(e.g., General Trades, Plumbing, HVAC, Electrical)
‘The penal sum, referred to herein, shall be the dolar amount of the Principal's Bid to the Obligee,
incorporating any additive alternate Bids made by the Principal on the date referred to above to the Obligee,
which are accepted by the Obligec. In no case shall the penal sum exceed the amount of dollars
(Ss O9_*#4%_). (If the preceding line is left blank, the penal sum will be the full amount of the
Principal's Bid, including add alternates. Altematively, if completed, the amount stated shafl not be less than the
full amount of the Bid, including Alternates, in dotlars and cents. A percentage js not acceptable.) For the
payment of the pena! sum well and truly to be made, we hereby joinily and severally bind ourselves, our heirs,
executors, administrators, successors and assigns.
THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas the above-named Principat
has submitted a Bid for the above referenced Project;
NOW, THEREFORE, if the Obligee accepts the Bid of the Principal, and the Principal fails to enter ino &
proper contract in accordance with the Contract bid, Plans, Specifications, detalls and bilis of material; and in the
event the Principal pays to the Obligce the difference, nat to exceed ten percent of the penal sum hereof between
the ainount specified in the Bid and such larger amount for which the Obligee may in good faith contract with the
Bidder determined by the Obligee to be the next lowest responsive and responsible to perform the Work covered
by the Bid; or in the event the Obtigee does not award the Contract to such next lowest responsive and responsible
Bidder and resubmits the Project for bidding, the Principal pays to the Obligec the difference not to exceed ten
percent of the penal sum hereof between the amount specified in the Bid, or the costs, in connection with the
resubmission, of printing new Contract Documents, required advertising and printing and mailing notices to
prospective Bidders, whichever is less, then this obligation shall be null and void, otherwise to remain in full force
and effect, (f the Obligee accepts the Bid of the Principal, and the Principal, within 10 days after the awarding of
the Contract, enters into 4 proper Contract and executes the Contract Form in accordance with the Contract
Documents, including without limitation the Bid, Plans, Specifications, details, and bills of material, which said
Contract is made a pari of this Bond the same as though set forth herein; and
NOW ALSO, IF THE SAID Principal shal! well and faithfully perform each and every condition of such
Contract; and indemnify the Obligee against all damage suffered by failure to perform such Contract according to
the provisions thereof and in accordance with the Contract Documents, including without Limitation Plans,
2010 Edition (Jan. 2010) Bid Security Form
M140-01-00 43 13-85, Bid Bond No. 1000778872-69
State Archheas Office
Specifications, details, and bills of material therefore; and shal! pay all lawful claims of Subcontractors, Material
Suppliers and laborers for labor performed and materials furnished in the carrying forward, performing or
completing of said Contract; we, agreeing and assenting that this undertaking shall be for the benefit of any
Subcontractor, Matcrial Suppliers or laborer having a just claim, as well as for the Obligec herein; then this
obligation shall be void; otherwise the same shall remain in full farce and effect; it being expressly understood
and agreed that the liability of the Surety for any and all claims hereunder shall in no event exceed the penal
amount of this obligation as herein stated.
THE SAID Surety hereby stipulates and agrees that no modifications, omissions or additions, in or to the
terms of said Contract, the Work thereunder or the Contract Documents, including without limitation the Plans
and Specifications, therefore, shall in any way affect the obligations of said Surety on its bond, and it does hereby
waive notice of any such modifications, omissions or additions in or to the terms of the Contract, the Wark, or Ihe
Contract Documents, including without limitation the Plans and Specifications,
SIGNED AND SEALED this 26th day of __May . 2010
PRINCIPAL:
Quality Asbestos & Demolition Services, LIC
By: 3}:
Title:
SURETY: American Contractors SURETY INFORMATION:
Indemnity Company
601 S. Figueroa St., Suite 1600
am a Street
By: ovis indehsfet Ios Angeles, CA 90017
City State Zip
Attorney-in-Fact Barry W, Berman
(330) 649-0990
Telephone Number
SURETY AGENT'S INFORMATION:
Construction Bonding Specialists, LIC
Agency Name
29445 Beck Road, Suite A-209
Street
Wixom, Michigan 48393
City State Zip
(248) 349-6227
Telephone Number
END OF DOCUMENT
Bid Security Form 2010 Ecitlon (Jan. 2010)
Page 00 43132 M140-01-00 43 13-85Document 00 52 16 - Contract Form olay
The University of Akron www.uakron.edu
Purchasing Department vi 330.972.7340
£: 330.972.5564
Lincoln Building, 2" Floor « Akron, Ohio 44325-9001
This Contract, as evidenced by this Contract Form, made by and between:
Quatity Asbestos & Demotition Service, LLC
. 300 Atlantic Street
Bay City, MI 48708
(the "Contractor") and The University of Akron (the “Owner”),
In consideration of the mutual promises hercin contained, the Owner and the Contractor agree as set forth
betow:
ARTICLE 1 ~ NATURE OF CONTRACT
hi ‘The Contractor shall perform the entire Work described in the Contract Documents and
reasonably inferable as necessary to produce the results intended by the Contract Documents for:
Contract No, 100019
Memoria! Hall Demolition
Time & Materials to provide Demolition for the Memorial Hall Demolition including Alternates G-1, G-3
&GS
ARTICLE 2 - COMPENSATON
2b The Owner shall pay for the performance of this Contract, subject to additions and deductions as
provided in the Contract Documents, the Contract Sum of $348,900.00, comprised of the
following:
Base Bid $328,400.00
Alternate $20,500.00
2.2 The Owner shall pay the Contractor upon receiving Contractor Payment Requests certified by the
Associate and recommended by the Lead Contractor and the Owner as provided in the Contract
Documents.
ARTICLE 3 — TIME OF PERFORMANCE
31 ‘The Contractor shall diligently prosecute and complete all Work such that Final Acceptance
occurs in 45 consecutive days, following-the date of the Notice to Proceed, unless an extension of
time is granted by the Owner in accordance with the Contract Documents, The period established
in this paragraph is referred to as the Contract Time,
2007 Edition (January 2010) Contract Form ~ Stipulated Sum (Mulliple-Prime Contract)
Page 00 52 16-1
M140-01-00 52 16-CFProjoct No; 100019 Memorial Hall Demalition
32 The Contractor must perform and complete all Work under the Contract within the established
Contract Time, and each applicable portion of the Work must be completed upon its respective
Milestone date, unless the Contractor timely requests, and the Owner grants, an extension of time
in accordance with the Contract Documents.
a3 The Contractor’s failure tc complete all Work within the period of lime specified, or failure to
have the applicable portion of the Work completed upon any Milestone date, shall entitle the
Owner to retain or recover from the Contractor, as Statutory Delay Forfeiture, the applicable
amount set forth in the following table for each and every calendar day thereafter until Contract
Completion or the date of completion of the applicable portion of the Work, unless the Contractor
timely requests, and the Owner grants, an extension of time in accordance with these Contract
Documents. The Stututory Delay Forfeiture amount is applicable ta Milestone dates only when so
stated in this Contract Form,
STATUTORY DELAY- FORFEITURE SCHEDULE
Contract Sum r Da
Less than $50,000 $150
From $50,000.01 to $150,000 $250
From $150,000.01 to $500,000 $500
From $500,000.01 10 $2,000,000 $1,000
From $2,000,000.01 to $5,000,000 $2,000
From $5,000,000.0! to $10,000,000 $2,500
More then $10,000,000 $3,000
34 ‘The Owner’s right to recover the Statutory Delay Forfeiture amount does not preclude any right
of recovery for actmal damages.
ARTICLE 4 - CONTRACT DOCUMENTS
4.1 The Contract Documents embody the entire understanding of the parties and form the basis of the
Contract between the Owner and the Contractor, .
42 ‘The Contract and any modifications, amendments, or alterations thereto shall be governed,
construed, and enforced by and under the laws of the State of Ohio.
43 If any term or provision of the Contract, or the application thereof to any Person or circumstance,
is finally determined, to be invalid or unenforceable by a court of competent jurisdiction, the
remainder of the Contract or the application of such term or provision to other Persons or
circumstances, shall not be affected thereby, and each term and provision of the Contract shail be
valid and enforced to the fullest extent penmitted by law,
Contract Form - Stipulated Sum (Muttipie-Prime Contract) 2007 Edition (January 2010)
Page 00 52 16-2 M140-01-00 52 16-CFProjact No: 100019 Memorial Hall Demolition
44 The Contract shall be binding on the Contractor and Owner, their successors and assigns, in
respect to all respective covenants and obligations contained in the Contract Documents, but the
Contractor may not assign the Contract without the prior written consent of the Owner.
ARTICLE 5 - EFFECTIVENESS
3.1 It is expressly understood by the Contrector that none of the rights, duties, and obligations
described in the Contract Documents shall be valid and enforceable unless the Director of the
Office of Budget and Management first certifies that there is a balance in the Owner's
appropriation not already encumbered to pay exiating obligations.
52 The Contmct shall become binding and effective upon execution by the Owner and approval by
the Attomey General,
53 Thig Contract Form has been executed in several counterparts, each of which shall constitute a
complete original Contract Form, which may be introduced in evidence or used for any other
purpose without production of any other counterparts.
5.4 Any signatory hereto may deliver a copy of its counterpart signature page to this Contract Fonn
via fax, e-mail, or the State’s Web-based project management system (“OAKS CI”). Each
signatory hereto shall be entitled to rely upon a signature of any other signatory delivered in such
@ manner as if such signature were an original.
ARTICLE 6 - REPRESENTATIONS
61 The Contractor represents and warrants that it is not subject to an unresolved finding for recovery
under Ohio Revised Code (O.R.C.") Section 9.24, Ef this representation and warranty is found to
be false, the Contract is void, and the Contractor shall immediately repay to the Owner any funds
paid under this Contract.
6.2 The Contractor hereby certifies that neither the Contractor nor any of the Contractor's partners,
officers, directors, shareholders nor the spouses of any such person have made contributions in
excess of the limitations specified in O.R.C, Section 3517.13.
63 In avcordance with Executive Order 2007-015, the Contractor, by signature on this document,
certifies that it: (1) has reviewed and understands Executive Order 2007-015, (2) has reviewed
and understands the Ohio ethics and conflict of interest laws, and (3) will take ne action
inconsistent with those laws and this order. The Contractor understands that failure to comply
with Executive Order 2007-015 is, in itself, grounds for termination of this contract and may
result in the loss of other contracts with the State of Ohio.
6.4 The Contractor certifies that it is currently ia compliance and will continue to adhere to the
_Tequirements of Ohio ethics laws.
6.5 The Contractor represents and warrants that it has not provided any material assistance, as that
term is defined in O.R.C, Section 2909.33(C), to an organization that is identified by, and
included on, the United States Department of State Terrorist Exclusion List and that it has
2007 Edition (January 2010) Contract Form - Stipulated Sum (Mullipte-Prime Contract)
M140-01-00 62 16-CF Page 00 52 16-3Project No: 100019
Mamorial Half Demolition
truthfully answered “no” to every question on the “Declaration Regarding Material
Assistance/Non-assistance {o a Terrorist Organization (“DMA”). The Contractor further
represents and warrants that it has either (1) registered with the Obio Business Gateway (“OBG")
to file for DMA pre-certification or (2) has provided or shall provide its DMA to the Owner prior
to execution of this Contract Form. If these representations and warranties are found to be false,
the Contract is void and the Contractor shall immediately repay to the Owner any funds paid
under this Contract.
IN WITNESS WHEREOF, the parties hereto have executed this Contract Form.
oy Dermes LUe,
CONTRACTOR -
Date: : tae (8 Zot By:
(Authorized Signature)
‘ chess
Print or type Contractor Name)
“Rate Sr Perec euwnel .
(Print or type Authorized Signature
Name and Title)
OWNER
By: Cra aleoss net_/ Bay Date: bhi ft co
“Andrew Roth fv Oo
Director of Purchasing
RICHARD CORDRAY, OHIO ATTORNEY GENERAL
Approved as to Form
yew : SS DAN
By: fea — Does Loe 10
Assistant Attomey General
END OF DOCUMENT
Contract Form — Stipulated Sum (Multple-Prime Contract) 2007 Edition {January 2010)
Page 00 62 16-4
M140-01-00 52 16-CFOhi®AS
1.11.6 The Contractor shall cooperate fully with requests for additional EDGE information and
documentation from the EOD or the Contracting Authority.
ARTICLE 2 - THE CONTRACTOR
2.1 Construction Procedures
2.1.1 The Contractor is solely responsible for and has control over all construction means, methods,
manners, techniques, sequences, and procedures and for coordinating all portions of the Work.
L If the Contract Documents give instructions that affect construction means, methods,
manners, techniques, sequences, or procedures, the Contractor shall evaluate the jobsite
safety of them and, except as stated below, shall be fully and solely responsible for the
jobsite safety of the means, methods, manners, techniques, sequences, or procedures.
2 If the Contractor determines that the means, methods, manners, techniques, sequences, or
procedures may not be safe, the Contractor shall give timely written notice to the Owner,
the A/E, and the Contracting Authority. The Contractor shall not proceed with that
portion of the Work without further written instructions from the A/E. Any modification
of the Contract shall be in accordance with Article 7.
2.1.2 The Contractor shall lay out and coordinate all lines, levels, elevations, and measurements for all
the Work, coordinate and verify existing conditions, and notify the A/E of discrepancies and
conflicts before proceeding with installation or excavation.
2.1.3. The Contractor shall perform alt cutting, fitting, or patching required for the Work and shall not
endanger the Project by cutting, excavating, or otherwise altering the Project, or any part of it.
Jl If the Contractor requires sleeves for the Work, the Contractor shall furnish and
coordinate installation of the sleeves in the work of others. The Contractor is responsible
for the exact location and size of all holes and openings required to be formed or built for
the Work, and shall coordinate with any work performed by others.
2 ‘The Contractor shall coordinate and allow sufficient time for installation of work by
others before covering or closing the applicable portion of the Work.
3 The Contractor’s patching shalt match and blend with the existing or adjacent surface(s).
2.1.4 The Contractor shall comply with O.R.C. Sections 3781.25 through 3781.32. In addition, before
starting excavation or trenching, the Contractor shall determine the location of any underground
utilities and notify any public authority or utility having jurisdiction over the Project and secure
any required approval.
J The Contractor shall give notice at least 2 business days in advance of excavation to the
owners of underground utilities registered with the Ohio Underground Utility Protection
Services (“OUPS” at w:
underground utilitics shown on the plans and specifications who are not registered
members of OUPS. The owner of an underground utility is required within 48 hours
notice to stake, mark, or otherwise designate the location of its utilities in the construction
area together with its approximate depth. In the event that any underground utility owner
fails to timely perform, the Contractor shall notify the A/E and contact the owner of the
underground utility.
2010 Edition Jan. 2010) General Conditions ~ Stipulated Sum (Multipte-Prime Contract)
M140-01-00 72 16-GC Page 00 72 16-11
UA00195State Architects Office
2.1.5 The Contractor shall install all Work in accordance with the Contract Documents and any
installation recommendations of the manufacturer, including required temperature and humidity
limits for installation of the various materials.
2.1.6 The Contractor shall comply with all requirements and conditions of the National Pollutant
Discharge Elimination System (“NPDES”) gencral permit, including, but not limited to,
implementing and maintaining the sedimentation and erosion control measures specified in the
storm water pollution prevention plan prepared by the A/E pursuant to subparagraph 2.9.4, which
are related to the Work, maintaining records of its construction activities, removing materials no
longer required, and taking proper action if there is a reportable quantity spill.
2.1.7 The Contractor shall communicate with the Contracting Authority and the Owner through the
ALE.
2.1.8 Ifthe Contracting Authority decides, at any time and in its sole discretion, to utilize the State’s
Web-based project management system, known as the OAKS Capital Improvements
(“OAKS CI") module, for the Project, the Contractor shall use OAKS Cl for all compatible
services required under this Contract. All costs for the Contractor’s use of OAKS C] for the
Project shall be included in the Contract Sum, and additional compensation shall not be provided.
If the Contractor is unfamiliar with the proper use of OAKS CI, the Contractor shall provide its
employees for training without additional compensation.
2.2 Review of Contract Documents and Field Conditions
2.2.1 Before starting each portion of the Work, the Contractor shall carefully study and compare the
vatious Contract Documents relative to that portion of the Work, shall take field measurements of
any existing conditions related to that portion of the Work, and shall observe any conditions at the
Site affecting it.
2.2.2 lfthe Contractor finds any perceived ambiguity, conflict, error, omission, or discrepancy on or
between any of the Contract Documents, or between any of the Contract Documents and any
Applicable Law, the Contractor, before proceeding with the Work, shall promptly submit a
Request for Interpretation (“RFI”) to the A/E for an interpretation or clarification.
J Before submitting any RFI to the A/E, the Contractor shall carefully review the Contract
Documents to ensure that the Contract Documents do not answer the RFT.
2 The A/E shall respond to an RFI within 3 days of receiving the RFI.
3 Any interpretation or clarification of the Contract Documents made by any Person other
than the A/E, or in any manner other than writing, shall not be binding and the Contractor
shall not rely upon it.
A Ifthe Project is administered using OAKS Ci, the Contractor shall submit RFs to the
A/E through the OAKS CI “Request for Interpretations” business process.
2.2.3. Ifthe Contractor believes that it is entitled to an adjustment of the Contract Sum or Contract
Time, or both, on account of clarifications or instructions issued by the A/E in response to a RFE,
the Contractor may request an adjustment to the Contract by giving written notice under
subparagraph 7.2.3 within 7 days of receiving the A/E’s RFI response.
2.24 lfthe Contractor does not notify the A/E per subparagraph 2.2.3, the Contractor will have
accepted the RFI response without an adjustment to the Contract Sum or Contract Time.
General Conditions — Stipulated Sum (Multiple-Prime Contract) 2010 Edition Jan. 2010)
Page 00 72 16-12 M140-01-00 72 16-GC.
UA00196Obi@AS
2.3 Construction Supervision
2.3.1 Unless waived by the Contracting Authority in writing, the Contractor shall provide continuous
supervision at the Site by a competent superintendent when any Work is being performed and the
Contractor’s superintendent shall not be involved with any work other than the Project.
2.3.2 The Contractor's project manager and superintendent shall each have the responsibility and
authority to act on behalf of the Contractor. All communications to the Contractor's project
manager or superintendent shall be binding as if given directly to the Contractor.
2.3.3. The Contractor shall submit an outline of the qualifications and experience of the Contractor's
proposed project manager and proposed superintendent, including references, to the A/E within
10 days of the Notice to Proceed.
Al The Contracting Authority reserves the right to reject the Contractor's proposed project
manager or proposed superintendent. Failure to notify the Contractor of the rejection
within 30 days of receiving the required information shall indicate that the Contracting
Authority has no objection.
2 Tf the Contracting Authority rejects the Contractor's proposed project manager or
proposed superintendent, the Contractor shall replace the project manager or
superintendent (as appropriate) with someone acceptable to the Contracting Authority at
no additional cost.
23.4 The Contractor shall not replace its project manager or superintendent without prior written
approval of the Contracting Authority.
J If the Contractor proposes to change its project manager or superintendent, the Contractor
shall submit written justification for the change to the A/E, along with the name and
qualifications of the Contractor's proposed replacement.
2 The procedure provided in subparagraph 2.3.3 shall be conducted to evaluate the
Contractor's proposed project manager or superintendent.
2.4 Protection of the Project
2.4.1 | The Contractor shall protect the Work from weather and maintain the Work and all materials,
apparatus, and fixtures free from injury or damage until Final Acceptance, or Partial Occupancy if
applicable,
Jl The Contractor shall at all times cover or protect the Work.
2 The Contractor, at its expense, shall remove, and replace with new, any Work damaged
as arcsult of Contractor's failure to provide coverage or protection.
3 The Contractor, at its expense, shall repair or replace any adjacent property, including,
but not limited to, roads, walks, shrubbery, plants, trees, or turf, damaged during
performance of the Work.
4 After the date of Final Acceptance, or Partial Occupancy if applicable, the Owner is
responsible for protecting and maintaining all materials, apparatus, and fixtures for the
occupied portion of the Project free from injury or damage.
2.4.2 The Lead Contractor shall protect the Project and existing or adjacent property from damage at all
times and shall erect and maintain necessary barriers, furnish and keep lighted necessary danger
signals at night, and take reasonable precautions to prevent injury or damage to individuals or
property.
2010 Edition (Jan. 2010) General Conditions — Stipulated Sum (Multiple-Prime Contract)
M140-01-00 72 16-GC Page 00 72 16-13
UA00197State Archited’s Olfice
24.3 The Contractor shall not load, nor permit any part of the Project to be loaded, in any manner that
endangers the Project, or any portion thereof. The Contractor shall not subject any part of the
Project or existing or adjacent property to stress or pressure that endangers the Project or
property.
2.4.4 The Contractor shall provide all temporary bracing, shoring, and other structural support required
for safety of the Project and proper execution of the Work.
2.4.5 Vibration, Noise, and Dust Control
a In occupied buildings, vibrations, noise and dust control shall be provided. The Lead.
Contractor or other Separate Contractor responsible for creating dust shall install dust
barriers as required by the construction operations.
2 Exhaust of unfiltered air, dust, construction debris or other undesirable products released
into the exterior atmosphere or into occupied areas of the building outside the Site will
not be permitted. The Project Manager reserves the right to limit or stop the continuation
of work if proper air quality standards are not maintained.
3 In certain occupied buildings, tasks might be of such a nature that noise and vibration
cannot be tolerated. In such spaces, work shall be scheduled for other than normal
working hours. The Contractor is cautioned that weekend or overtime work, if required,
shall be performed at no additional cost. Permission to work other than standard hours
shall be received from the Contracting Authority prior to the occurrence. Weekend and
overtime work shail be reflected in the Construction Progress Schedule.
4 Vibration control and control of transmission of noise are the responsibility of the
Contractor whose operations are creating the conditions. Principal considerations which
shail be given to noise and vibration control are:
A Noise control in compliance with Occupational Safety and Health Administration
(“OSHA”) requirements for the health and safety of building occupants; control
shall be for all areas of the facility, including equipment rooms, boiler rooms, and
fan rooms.
2 Vibration control to limit sound produced by construction equipment, and for
protection of the equipment existing in a building and the building structure
Preview
DANEL M. HOBRIGAN 419: 36 pyr nus27 BIOS guniil cou CLERK OF CO Sy THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO MICHIGAN PRECISION GRADING, ) CASENO.: CV 2011 073930 LLC ) ) JUDGE ROWLANDS Plaintiff, ) ) vs. ) ) DEFENDANT THE UNIVERSITY OF QUALITY ASBESTOS & ) AKRON?S SECOND DEMOLITION SERVICES, LLC, et ) SUPPLEMENTAL MOTION FOR al. ) PARTIAL SUMMARY JUDGMENT ) (ORIGINAL FILED JANUARY 18, Defendants. ) 2012) ) Defendant The University of Akron (“the University”) moves this Court for Summary Judgment. As a matter of law, the University’s $331,598.76 claim against the penal amount of the bid, performance and payment bond (“the Bond”) is entitled to a priority over all other Bond claimants. Based on the clear and unambiguous terms of the Bond and Construction Contract, the University’s property damage is, as a matter of law, a proper claim against the penal amount of the Bond. This motion is supported by the pleadings, the attached memorandum in support, the Affidavit of David J. Pierson (“Supplemental Pierson Aff.”), the University’s Motion for Partial Summary Judgment filed on January 18, 2012 (“Original Motion for Summary Judgment’) and Mr. Pierson’s Affidavit in support of the Original Motion for Summary Judgment (“Original Pierson Aff.”). The Original Motion for Summary Judgment and Original Pierson Affidavit are attached hereto as Appendices 1 and 2 and are incorporated herein by reference as if fullyrewritten. The facts and legal arguments of the University’s Original Motion for Partial Summary Judgment are incorporated in this Second Supplemental Motion for Partial Summary Judgment. BUCKINGHAM, DOOLITTLE & BURROUGHS, LLP hh. | Ae StL Frederick M¢ Lombardi #0023474 John L. Reyes #0023508 Joshua D. Nolan #0084592 3800 Embassy Parkway, Suite 300 Akron, OH 44333-8332 (330) 376-5300 (Telephone) (330) 258-6559 (Facsimile) flombardi@bdblaw.com jreyes@bdblaw.com jnolan@bdblaw.com Attorneys for Defendant The University of AkronMEMORANDUM IN SUPPORT IL STATEMENT OF FACTS AND OF THE CASE This is a dispute between unpaid laborers and material providers and their general contractor Quality Asbestos & Demolition Services, LLC (“Quality Asbestos”) and Quality Asbestos’ surety American Contractors Indemnity Company (“ACIC”) for work performed on a public improvement on the University’s main campus.’ The remaining parties in this litigation, including the University, have made claims against the Bond.? The University’s claim is entitled to priority over the remaining Bond claimants.’ The University’s claim includes the cost to complete in the sum of $262,000 and nearly $70,000.00 in property damages.* These property damages are proper claims against the Bond.° The Original Motion for Summary Judgment and Original Affidavit chiefly addressed the cost to complete the demolition of Memorial Hall. This Supplemental Motion for Summary Judgment and Supplemental Affidavit address the payment from the penal amount of the Bond of both the cost to complete and the property damages. A. Quality Asbestos was terminated for breaching the Construction Contract. The University entered into a series of contracts (the “Construction Contract”) with Quality Asbestos for the asbestos abatement and demolition of Memorial Hall on the * See Ohio Revised Code §§1311.26, 1311.28, 1311.29 and 1311.32. ? A true and accurate copy of the Bond is attached as Exhibit A to the Supplemental Pierson Aff. in support of Supplemental Motion for Summary Judgment. 3 See the University’s Original Motion for Partial Summary Judgment (filed on January 18, 2012) at pp. 4-6. * See Supplemental Pierson Aff. at §f 11-14. * The University filed a Third-Party Complaint against Quality Asbestos’ insurance company, Endurance American Specialty Insurance Co. On August 17, 2012, the University filed a Motion for Default Judgment against the Company,University’s campus (the “Memorial Hall Project”). Pursuant to Ohio law, ACIC provided Quality Asbestos and the University with bid, performance and payment bonds totaling $412,000.’ The Bond related to the demolition portion of the Memorial Hall Project has a penal amount of $350,000. The asbestos abatement portion of the Memorial Hall Project was completed and accepted by the University. A number of significant problems arose with the Quality Asbestos’ performance in the Memorial Hall demolition project and, after proper notice, the University terminated Quality Asbestos as the Memorial Hall Project’s general contractor on January 24, 2011 3 Quality Asbestos breached its contractual obligation under the General Conditions of the Construction Contract, including its obligation to protect the worksite and adjacent property from damage: 24 Protection of the Project 2.4.1 The Contractor shall protect the Work from weather and maintain the Work and all materials, apparatus, and fixtures free from injury or damage until Final Acceptance, or Partial Occupancy if applicable, Jl The Contractor shall at all times cover or protect the Work. 2 The Contractor, at its expense, shall remove, and replace with new, any Work damaged as a result of the Contractors failure to provide coverage or protection. 3 The Contractor, at its expense, shall repair or replace any adjacent property, including, but not limited to, roads, walks, shrubbery, plants, trees, or turf, damaged during the performance of the Work. 4 After the date of Final Acceptance, or Partial Occupancy if ® A true and accurate copy of relevant portions of the Construction Contract are attached as Exhibit B to the Supplemental Pierson Aff. The contract documents are voluminous and therefore only portions have been provided to the Court. The University will provide a complete set of contract documents upon request. T See Affidavit of J. Pierson attached to the University’s Original Motion for Partial Summary Judgment filed January 18, 2012 (Original Pierson Aff.) at §§2-S and Exhibits C and D to the University’s Original Motion for Partial Summary Judgment. * Original Pierson Aff. at [6, Exhibit E of the University’s Motion for Partial Summary Judgment.applicable, the Owner is responsible for protecting and maintaining all materials, apparatus, and fixtures for the occupied portion of the Project free from injury or damage. 2.4.2 The Lead Contractor shall protect the Project and existing or adjacent property from damage at all times and shall erect and maintain necessary barriers, furnish and keep lighted necessary danger signals at night, and take reasonable precautions to prevent injury or damage to individuals or property. General Condition Section 2.4-2.4.2 attached as Exhibit B to the Supplemental Pierson Aff. Additionally, General Conditions Section 2.5 (Materials and Equipment) required Quality Asbestos to “not allow materials or equipment to damage the Project or adjacent property nor to endanger any individual at, or near, the Site.” It failed to do so.? Quality Asbestos’ damaged University property including building windows, sidewalks, trees, electric conduit, lampposts and utilities infrastructure. The University suffered $69,598.76 property damages. The cost of repairing and replacing the University’s damaged property is as follows: © Replacement of broken windows $ 5,500.00 © Repairs to sidewalks $ 3,400.00 ¢ Repair and replacement of copper piping $ 39,000.00 ¢ Repair and replacement of electrical conduit and router $ 19,700.00 © Replacement of two light posts $1,998.76 Total $69,598.76 The University informed ACIC of these damages after Quality Asbestos’ termination.'° B. Bob Bennett Construction Company, Inc. was the successful bidder on the contract to complete the Memorial Hall Project. After the University terminated Quality Asbestos and the completion of the Memorial ° Supplemental Pierson Aff. at { 6. '© Sce Supplemental Pierson Aff. at | 7. The University, through its counsel, also made repeated demands on Endurance American Specialty Insurance Co. for payment under Quality Asbestos’ insurance policy on which the University is a named insured party. The University filed a Third-Party Complaint against the insurance company. On August 17, 2012, it filed a motion for default judgment when the insurance company failed to appear. See docket.Hall Project was rebid, the project was let to Bob Bennett Construction Company, Inc. (“Bob Bennett Construction”). Bob Bennett Construction’s contract included the completion of the demolition work and repairing the damages to the University buildings and property resulting from Quality Asbestos’ failure to perform its obligations under the Construction Contract.!! Bob Bennett Construction costs were $67,600 to repair all of the damages except for the light posts. The University, on its own, replaced the two light posts at a cost of $1,998.76.’ The total cost to the University for these repairs was $69,598.76."9 Bob Bennett Construction’s bid to complete the demolition and repair the damages was $332,800.'4 Because the University replaced the light posts at it own expense, and, thus, not included in the Bob Bennett Construction Bid, Bob Bennett Construction’s total cost to complete the Memorial Hall Project, including making all the repairs described above, was $329,600.' Cc Quality Absestos’ termination triggered the University’s rights under the Bond. The Bond for the demolition of Memorial Hall, requires Quality Asbestos to “well and faithfully perform each and every condition of [the Construction Contract]; and indemnify the [University] against all damage suffered by failure to perform such [Construction] [C]ontract according to the provisions thereof and in accordance with the contract documents * * *.”!° The Bond is not limited to the performance of the scope of work on the project. Rather, it includes all obligations under the Construction Contract.” The University’s termination of Quality Asbestos triggered ACIC’s obligations under the " Supplemental Pierson Aff. at 10. ” Supplemental Pierson Aff. at § 11. 8 id. at 7. id at G12. Sid at G13. 'S See Exhibit A. "7 See Exhibit A.Bond.'® About the time that Quality Asbestos was terminated, the University began receiving a notice that Quality Asbestos had not paid some of its contractors. D. Quality Asbestos’ unpaid subcontractors file liens on the University’s construction funds and then file suit. As described in more detail in the University’s Original Motion for Partial Summary Judgment, Plaintiff Michigan Precision Grading, LLC (“Michigan Precision”), Defendant Gibson Machinery, LLC (“Gibson Machinery”) and Defendant Ohio Machinery Company dba Ohio CAT (“Ohio CAT”) served and filed affidavits of attested accounts to establish liens against the public funds remaining in the University’s construction account pursuant to R.C. §1311.26 and 1311.29.° The University retained the entire amount of the construction funds remaining for the Memorial Hall Project ($156,673.77). On July 20, 2011, Michigan Precision filed its Complaint against Quality Asbestos, the University, ACIC and the other unpaid subcontractors. Michigan Precision’s claims included breach of contract action against Quality Asbestos, lien foreclosure on the public funds retained by the University and declaratory judgment to determine the validity and priority of the parties’ claims against the public funds and the Bond. On January 18, 2012 the University filed its Original Motion for Partial Summary Judgment asserting that (1) Ohio CAT, Michigan Precision and Gibson Machinery have a valid lien against the public funds maintained in the construction account ($156,673.77); and (2) that the University is entitled to a priority over all other claims against the penal amount of the 8 See Original Pierson Aff. at 99; see, also, Exhibit D and F to University’s Original Motion for Partial Summary Judgment. ° Original Pierson Aff. at 448-14. ? See the University’s Original Motion for Partial Summary Judgment at p.4-6. 2! The University’s Original Motion for Partial Summary Judgment at p.4. 2 See Complaint filed July 20, 2011.Bond.”3 On January 31, 2012, Ohio CAT dismissed its claims against Quality Asbestos and the other parties in this case.** This terminated Ohio CAT’s claim against the Bond.° On February 24, 2012, the Gibson Machinery and Michigan Precision, the remaining claimants against the public funds, filed a joint motion of distribution in which Gibson Machinery requested that it receive $21,172.14 of its original $73,200 claim and that Michigan Precision receive $135,501.63 of its original $156,673.77 claim against the public funds. On the same day, the University supplemented its Motion for Partial Summary Judgment withdrawing the portion of the Motion for Summary Judgment where it identifies the lien claimants and the amounts of pro rata distribution of the public funds. Also on the same day, Michigan Precision filed an opposition to the University’s Original Motion for Partial Summary Judgment arguing that The Cleveland Builders Supply & Brick Co. v. Village of Garfield Heights case was inapplicable to the facts here and, thus, the University was not entitled to a priority. Michigan Precision’s opposition to the University of Akron’s Motion for Partial Summary Judgment filed on February 24, 2012, On March 12, 2012 the University filed a reply to Michigan Precision’s opposition. On March 27, 2012, the Court adopted the amounts stipulated by Gibson Machinery and Michigan Precision in a distribution order requiring the University to distribute the public funds per the Court’s Order. See Order distributing the retained funds dated March 27, 2012. The University complied with the Order and distributed the funds to Gibson Machinery and Michigan Precision. 3 See University’s Original Motion for Partial Summary Judgment; see also The Cleveland Builders’ Supply & Brick Co. v. Village of Garfield Heights, 116 Ohio St. 338, 156 N.E. 209 (1927). * See Notice of Partial Dismissal filed January 31, 2012. * See id.The Court has yet to rule upon the issue of whether the University is entitled to a priority over the other claimants as it relates to the penal amount of the Bond. On June 5, 2012 the University obtained a default judgment in the amount of $330,998.76 against the defaulting contractor, Quality Asbestos. I LAW AND ARGUMENT A Both the Construction Contract and the Bond are clear and unambiguous and as a matter of law the University’s property damages can be recovered from the penal amount of the Bond. Based on the discovery requests received from Michigan Precision, the University anticipates that Michigan Precision and the other bond claimants will argue that the University’s property damages are outside the scope of work of its original contract with Quality Asbestos and, therefore, the University is unable to recover those damages from the penal amount of the Bond. This argument is misplaced. In fact, Quality Asbestos and ACIC have a clear and unambiguous contractual obligation to protect the University from property damage and agreed to pay for these damages. The contract language in both the Construction Contract and the Bond expressly and unequivocally support this conclusion?” Because the contract terms of the Construction Contract and the Bond are clear, a factual determination is unnecessary.” The Court as a matter of law can review the contract provisions of the Construction Contract and the Bond and find in favor of the University.”* The Bond protects the University from any damages resulting from Quality Asbestos’ . ?6 Judgment Order dated June 5, 2012. 7 See Andrefsky v. Shapiro, 9th Dist. No. 22052, 2004-Ohio-7174 citing Refuse Transfer Co. v. Browning-Ferris, 15 Ohio St.3d 321, 322, 474 N.E.2d 271 (1984) (recognizing that if a contract is clear and unambiguous, then its interpretation is a matter of law and there is no issue of fact to be determined within the context of summary judgment). Refuse Transfer Co. v. Browning-Ferris, 15 Ohio St.3d 321, 322, 474 N.E.2d 271 (1984). See Jd.breach of the Construction Contract.?° Similarly, the Construction Contract’s language clearly outlines Quality Asbestos’ obligations.>! Quality Asbestos was obligated “repair or replace any adjacent property, including, but not limited to, roads, walks, shrubbery, plants, trees, or turf, damaged during the performance of the Work.” It was also required to protect and repair the work site” There is no dispute that Quality Asbestos failed to do so. As a matter of law, the University’s property damages can be recouped through a claim against the penal amount of the Bond.” The Bond expressly permits the University to be made whole for Quality Asbestos’ failure to perform under the Construction Contract. The University respectfully requests that this Court find that the University is entitled to a priority over all other claimants to the Bond.** And that the clear and unambiguous language in the Construction Contract and the Bond, as a matter of law, permit the University to recover its claim against the Bond the $69,598.76 in property damages as well as the cost to complete the Memorial Hall Project in the sum of $262,000. Respectfully submitted, BUCKINGHAM, DOOLITTLE & BURROUGHS, LLP ~“Frederfck M. Lombardi #0023474 John L. Reyes #0023508 Joshua D. Nolan #0084592 3800 Embassy Parkway, Suite 300 Akron, OH 44333-8332 (330) 376-5300 (Telephone) (330) 258-6559 (Facsimile) °° See Exhibit A. 3! See Exhibit B. » See Sections 2.4.2 and Section 2.5 of the General Conditions. (Exhibit B). * See Andrefsky v. Shapiro, 9th Dist. No. 22052, 2004-Ohio-7174. * See the University’s Original Motion for Partial Summary Judgment. 10flombardi@bdblaw.com jreyes@bdblaw.com jnolan@bdblaw.com Attorneys for Defendant The University of Akron 11CERTIFICATE OF SERVICE A copy of the foregoing was served by regular U.S. mail, postage prepaid, this zt day of August, 2012, upon the following: Joseph R. Spoonster, Esq. Fortney & Klingshirn 4040 Embassy Parkway, Suite 280 Akron, Ohio 44333 Attorney for Plaintiff Lee M. Brewer, Esq. Justin D. Owen, Esq. Alber Crafton, PSC 501 West Schrock Road, Suite 104 Westerville, Ohio 43081-8036 Attorneys for Defendant/Cross-Claimant/ Third-Party Plaintiff American Contractors Indemnity Company Bradley L. Greene, Esq. 75 Public Square, Suite 920 Cleveland, Ohio 44113 Attorney for Defendant Ohio Machinery Steven L. Yashnik, Esq. 3250 West Market Street, Suite 14 Akron, Ohio 44333 Attorney for Defendant S. A. Comunale Co., Ine. Basil W. Mangano, Esq. Ryan K. Hymore, Esq. Mangano Law Offices 2245 Warrensville-Center Road, Suite 213 Cleveland, Ohio 44118 Attorney for Defendant Laborers’ Local 894 @AK3:1108635_ v1» Quality Asbestos & Demolition Services, LLC 300 Atlantic Street Bay City, MI 48708 Defendant David Arnold, Esq. Weston Hurd LLP The Tower at Erieview 1031 East Ninth Street, Suite 1900 Cleveland, Ohio 44114-1862 Attorney for Defendant/Cross-Claimant Gibson Machinery, LLC Stanley E. Stein, Esq. Robert A. Gaffney Jr., Esq. Stanley E. Stein & Associates Co., LPA 75 Public Square, Suite 714 Cleveland, Ohio 44113-207 Attorneys for Defendant Ohio Machinery James C. Carpenter, Esq. Steptoe & Johnson PLLC Huntington Center, Suite 2200 41 South High Street Columbus, Ohio 43215 Attorney for Defendant Company Wrench LLC Db. Ur 7 12IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO MICHIGAN PRECISION GRADING, LLC) CASE NO.: CV 2011 07 3930 ) Plaintiff, } JUDGE ROWLANDS ) vs. ) ) QUALITY ASBESTOS & DEMOLITION ) AFFIDAVIT OF DAVID J, PIERSON SERVICES, LLC, et al. ) IN SUPPORT OF THE UNIVERSITY ) F AKRON’S SECOND Defendants. ) SUPPLEMENTAL MOTION FOR ) PARTIAL SUMMARY JUDGMENT STATE OF OHIO ) ss. COUNTY OF SUMMIT __ ) 1, David J. Pierson, for my Affidavit, testify as follows: 1. 1 am over 21 years of age, and I have personal knowledge of the facts sworn to herein unless stated upon information and belief. 2. 1 am a resident of Summit County. 3. 1 am the Assistant Vice President of Capital Planning and Facilities Management for The University of Akron. 1 am responsible for the oversight of major construction projects on campus, including the asbestos abatement and demolition of Memorial Hall (the “Memorial Hall Project”).4, The University of Akron (the “University”) contracted with Quality Asbestos & Demolition Services, LLC (“Quality Asbestos”) as a general contractor on the Memorial Hall Project in May of 2010. 5. A true and accurate copy of the bid, payment and performance bond (the “Bond”) provided by Quality Asbestos is attached as Exhibit A. True and accurate copies of the relevant portions of the University’s Construction Contract with Quality Asbestos are attached to this Affidavit as Exhibit B. 6. Quality Asbestos breached its contractual obligation under the General Conditions of the Construction Contract, including its obligation to protect the worksite and adjacent property from damage. See Exhibit B Sections 2.4 and 2.5. General Conditions Section 2.5 (Materials and Equipment) required Quality Asbestos to “not allow materials or equipment to damage the Project or adjacent property not to endanger any individual at, or near, the Site.” It failed to do so. 7. Quality Asbestos damaged University property including building windows, sidewalks, trees, electric conduit, lampposts and utilities infrastructure. The University suffered $69,598.76 in property damages as outlined in this chart: e Replacement of broken windows $ 5,500.00 e Repairs to sidewalks $ 3,400.00 e Repair and replacement of copper piping $ 39,000.00 Repair and replacement of electrical conduit and router $ 19,700.00 Replace lamp posts $ 1,998.76 8. The University informed Quality Asbestos’ surety American Contractors Indemnity Company (“ACIC”) of these damages after Quality Asbestos’ termination on January 24, 2011.9. After the University terminated Quality Asbestos and the completion of the Memorial Hall Project was rebid, the project was let to Bob Bennett Construction Company, Inc. (“Bob Bennett Construction”). 10. Bob Bennett Construction’s contract included the completion of the demolition work and repairing the damages to the University buildings and property resulting from Quality Asbestos’ failure to perform its obligations under the Construction Contract. 11. Bob Bennett Construction costs were $67,600 to repair all of the property damages except for the light posts. The University, on its own, replaced the two light posts at a cost of $1,998.76. 32. Bob Bennett Construction’s bid to complete the Memorial Hal! Project and repair the damages was $332,800. 13. Bob Bennett Construction’s total cost to complete the Memorial Hall Project including repairs was $329,600. 14. The total cost to complete the Memorial Hall Project and repairs the University’s property damages is $331,598.76. FURTHER AFFIANT SAYETH NAUGHT. Sworn to before me and subscribed in my presence at Akron, Ohio, this @Y_ day of August, 2012. eAR3:1111652_vb> BARBARA A FULLER, Notary Public Residence « Sunmit Couary State We Jurisécton, Ohio F My Commission Expires March 22. 2014Bid Bond No. 1000778872-69 Document 00 43 13 - Bid Security Form Ohi@aAS. Ohio Department of Administrative Services www.ohio.gow/sao e: StateArchOM@das,state.oh.us General Services Division State Architect’s Office + 4200 Surface Road + Columbus, Ohio 43228-1395 v: 614.466.4761 + f: 614.644.7982 FORM OF BID GUARANTY AND CONTRACT BOND (As prescribed by Ohio Reviserl Code Section 153.571) KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned Qality Asbestos & Demolition joe , as Principal, at 300 Atlantic Street, Bay City, Michigan 48708 (Address) and American Contractors Indemnity Company as Surety, are hereby heid and firmly bound unto the State of Ohio, as Obligee, in the penat sum of the dollar amount of the Bid submitted by the Principal to the Obligee on (date) June 1, 2030 to undertake the Project known as: Project Number: __ 100019 Memorial Hall Demolition Project Name: Contract Description: Demolition (e.g., General Trades, Plumbing, HVAC, Electrical) ‘The penal sum, referred to herein, shall be the dolar amount of the Principal's Bid to the Obligee, incorporating any additive alternate Bids made by the Principal on the date referred to above to the Obligee, which are accepted by the Obligec. In no case shall the penal sum exceed the amount of dollars (Ss O9_*#4%_). (If the preceding line is left blank, the penal sum will be the full amount of the Principal's Bid, including add alternates. Altematively, if completed, the amount stated shafl not be less than the full amount of the Bid, including Alternates, in dotlars and cents. A percentage js not acceptable.) For the payment of the pena! sum well and truly to be made, we hereby joinily and severally bind ourselves, our heirs, executors, administrators, successors and assigns. THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas the above-named Principat has submitted a Bid for the above referenced Project; NOW, THEREFORE, if the Obligee accepts the Bid of the Principal, and the Principal fails to enter ino & proper contract in accordance with the Contract bid, Plans, Specifications, detalls and bilis of material; and in the event the Principal pays to the Obligce the difference, nat to exceed ten percent of the penal sum hereof between the ainount specified in the Bid and such larger amount for which the Obligee may in good faith contract with the Bidder determined by the Obligee to be the next lowest responsive and responsible to perform the Work covered by the Bid; or in the event the Obtigee does not award the Contract to such next lowest responsive and responsible Bidder and resubmits the Project for bidding, the Principal pays to the Obligec the difference not to exceed ten percent of the penal sum hereof between the amount specified in the Bid, or the costs, in connection with the resubmission, of printing new Contract Documents, required advertising and printing and mailing notices to prospective Bidders, whichever is less, then this obligation shall be null and void, otherwise to remain in full force and effect, (f the Obligee accepts the Bid of the Principal, and the Principal, within 10 days after the awarding of the Contract, enters into 4 proper Contract and executes the Contract Form in accordance with the Contract Documents, including without limitation the Bid, Plans, Specifications, details, and bills of material, which said Contract is made a pari of this Bond the same as though set forth herein; and NOW ALSO, IF THE SAID Principal shal! well and faithfully perform each and every condition of such Contract; and indemnify the Obligee against all damage suffered by failure to perform such Contract according to the provisions thereof and in accordance with the Contract Documents, including without Limitation Plans, 2010 Edition (Jan. 2010) Bid Security Form M140-01-00 43 13-85, Bid Bond No. 1000778872-69 State Archheas Office Specifications, details, and bills of material therefore; and shal! pay all lawful claims of Subcontractors, Material Suppliers and laborers for labor performed and materials furnished in the carrying forward, performing or completing of said Contract; we, agreeing and assenting that this undertaking shall be for the benefit of any Subcontractor, Matcrial Suppliers or laborer having a just claim, as well as for the Obligec herein; then this obligation shall be void; otherwise the same shall remain in full farce and effect; it being expressly understood and agreed that the liability of the Surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated. THE SAID Surety hereby stipulates and agrees that no modifications, omissions or additions, in or to the terms of said Contract, the Work thereunder or the Contract Documents, including without limitation the Plans and Specifications, therefore, shall in any way affect the obligations of said Surety on its bond, and it does hereby waive notice of any such modifications, omissions or additions in or to the terms of the Contract, the Wark, or Ihe Contract Documents, including without limitation the Plans and Specifications, SIGNED AND SEALED this 26th day of __May . 2010 PRINCIPAL: Quality Asbestos & Demolition Services, LIC By: 3}: Title: SURETY: American Contractors SURETY INFORMATION: Indemnity Company 601 S. Figueroa St., Suite 1600 am a Street By: ovis indehsfet Ios Angeles, CA 90017 City State Zip Attorney-in-Fact Barry W, Berman (330) 649-0990 Telephone Number SURETY AGENT'S INFORMATION: Construction Bonding Specialists, LIC Agency Name 29445 Beck Road, Suite A-209 Street Wixom, Michigan 48393 City State Zip (248) 349-6227 Telephone Number END OF DOCUMENT Bid Security Form 2010 Ecitlon (Jan. 2010) Page 00 43132 M140-01-00 43 13-85Document 00 52 16 - Contract Form olay The University of Akron www.uakron.edu Purchasing Department vi 330.972.7340 £: 330.972.5564 Lincoln Building, 2" Floor « Akron, Ohio 44325-9001 This Contract, as evidenced by this Contract Form, made by and between: Quatity Asbestos & Demotition Service, LLC . 300 Atlantic Street Bay City, MI 48708 (the "Contractor") and The University of Akron (the “Owner”), In consideration of the mutual promises hercin contained, the Owner and the Contractor agree as set forth betow: ARTICLE 1 ~ NATURE OF CONTRACT hi ‘The Contractor shall perform the entire Work described in the Contract Documents and reasonably inferable as necessary to produce the results intended by the Contract Documents for: Contract No, 100019 Memoria! Hall Demolition Time & Materials to provide Demolition for the Memorial Hall Demolition including Alternates G-1, G-3 &GS ARTICLE 2 - COMPENSATON 2b The Owner shall pay for the performance of this Contract, subject to additions and deductions as provided in the Contract Documents, the Contract Sum of $348,900.00, comprised of the following: Base Bid $328,400.00 Alternate $20,500.00 2.2 The Owner shall pay the Contractor upon receiving Contractor Payment Requests certified by the Associate and recommended by the Lead Contractor and the Owner as provided in the Contract Documents. ARTICLE 3 — TIME OF PERFORMANCE 31 ‘The Contractor shall diligently prosecute and complete all Work such that Final Acceptance occurs in 45 consecutive days, following-the date of the Notice to Proceed, unless an extension of time is granted by the Owner in accordance with the Contract Documents, The period established in this paragraph is referred to as the Contract Time, 2007 Edition (January 2010) Contract Form ~ Stipulated Sum (Mulliple-Prime Contract) Page 00 52 16-1 M140-01-00 52 16-CFProjoct No; 100019 Memorial Hall Demalition 32 The Contractor must perform and complete all Work under the Contract within the established Contract Time, and each applicable portion of the Work must be completed upon its respective Milestone date, unless the Contractor timely requests, and the Owner grants, an extension of time in accordance with the Contract Documents. a3 The Contractor’s failure tc complete all Work within the period of lime specified, or failure to have the applicable portion of the Work completed upon any Milestone date, shall entitle the Owner to retain or recover from the Contractor, as Statutory Delay Forfeiture, the applicable amount set forth in the following table for each and every calendar day thereafter until Contract Completion or the date of completion of the applicable portion of the Work, unless the Contractor timely requests, and the Owner grants, an extension of time in accordance with these Contract Documents. The Stututory Delay Forfeiture amount is applicable ta Milestone dates only when so stated in this Contract Form, STATUTORY DELAY- FORFEITURE SCHEDULE Contract Sum r Da Less than $50,000 $150 From $50,000.01 to $150,000 $250 From $150,000.01 to $500,000 $500 From $500,000.01 10 $2,000,000 $1,000 From $2,000,000.01 to $5,000,000 $2,000 From $5,000,000.0! to $10,000,000 $2,500 More then $10,000,000 $3,000 34 ‘The Owner’s right to recover the Statutory Delay Forfeiture amount does not preclude any right of recovery for actmal damages. ARTICLE 4 - CONTRACT DOCUMENTS 4.1 The Contract Documents embody the entire understanding of the parties and form the basis of the Contract between the Owner and the Contractor, . 42 ‘The Contract and any modifications, amendments, or alterations thereto shall be governed, construed, and enforced by and under the laws of the State of Ohio. 43 If any term or provision of the Contract, or the application thereof to any Person or circumstance, is finally determined, to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the Contract or the application of such term or provision to other Persons or circumstances, shall not be affected thereby, and each term and provision of the Contract shail be valid and enforced to the fullest extent penmitted by law, Contract Form - Stipulated Sum (Muttipie-Prime Contract) 2007 Edition (January 2010) Page 00 52 16-2 M140-01-00 52 16-CFProjact No: 100019 Memorial Hall Demolition 44 The Contract shall be binding on the Contractor and Owner, their successors and assigns, in respect to all respective covenants and obligations contained in the Contract Documents, but the Contractor may not assign the Contract without the prior written consent of the Owner. ARTICLE 5 - EFFECTIVENESS 3.1 It is expressly understood by the Contrector that none of the rights, duties, and obligations described in the Contract Documents shall be valid and enforceable unless the Director of the Office of Budget and Management first certifies that there is a balance in the Owner's appropriation not already encumbered to pay exiating obligations. 52 The Contmct shall become binding and effective upon execution by the Owner and approval by the Attomey General, 53 Thig Contract Form has been executed in several counterparts, each of which shall constitute a complete original Contract Form, which may be introduced in evidence or used for any other purpose without production of any other counterparts. 5.4 Any signatory hereto may deliver a copy of its counterpart signature page to this Contract Fonn via fax, e-mail, or the State’s Web-based project management system (“OAKS CI”). Each signatory hereto shall be entitled to rely upon a signature of any other signatory delivered in such @ manner as if such signature were an original. ARTICLE 6 - REPRESENTATIONS 61 The Contractor represents and warrants that it is not subject to an unresolved finding for recovery under Ohio Revised Code (O.R.C.") Section 9.24, Ef this representation and warranty is found to be false, the Contract is void, and the Contractor shall immediately repay to the Owner any funds paid under this Contract. 6.2 The Contractor hereby certifies that neither the Contractor nor any of the Contractor's partners, officers, directors, shareholders nor the spouses of any such person have made contributions in excess of the limitations specified in O.R.C, Section 3517.13. 63 In avcordance with Executive Order 2007-015, the Contractor, by signature on this document, certifies that it: (1) has reviewed and understands Executive Order 2007-015, (2) has reviewed and understands the Ohio ethics and conflict of interest laws, and (3) will take ne action inconsistent with those laws and this order. The Contractor understands that failure to comply with Executive Order 2007-015 is, in itself, grounds for termination of this contract and may result in the loss of other contracts with the State of Ohio. 6.4 The Contractor certifies that it is currently ia compliance and will continue to adhere to the _Tequirements of Ohio ethics laws. 6.5 The Contractor represents and warrants that it has not provided any material assistance, as that term is defined in O.R.C, Section 2909.33(C), to an organization that is identified by, and included on, the United States Department of State Terrorist Exclusion List and that it has 2007 Edition (January 2010) Contract Form - Stipulated Sum (Mullipte-Prime Contract) M140-01-00 62 16-CF Page 00 52 16-3Project No: 100019 Mamorial Half Demolition truthfully answered “no” to every question on the “Declaration Regarding Material Assistance/Non-assistance {o a Terrorist Organization (“DMA”). The Contractor further represents and warrants that it has either (1) registered with the Obio Business Gateway (“OBG") to file for DMA pre-certification or (2) has provided or shall provide its DMA to the Owner prior to execution of this Contract Form. If these representations and warranties are found to be false, the Contract is void and the Contractor shall immediately repay to the Owner any funds paid under this Contract. IN WITNESS WHEREOF, the parties hereto have executed this Contract Form. oy Dermes LUe, CONTRACTOR - Date: : tae (8 Zot By: (Authorized Signature) ‘ chess Print or type Contractor Name) “Rate Sr Perec euwnel . (Print or type Authorized Signature Name and Title) OWNER By: Cra aleoss net_/ Bay Date: bhi ft co “Andrew Roth fv Oo Director of Purchasing RICHARD CORDRAY, OHIO ATTORNEY GENERAL Approved as to Form yew : SS DAN By: fea — Does Loe 10 Assistant Attomey General END OF DOCUMENT Contract Form — Stipulated Sum (Multple-Prime Contract) 2007 Edition {January 2010) Page 00 62 16-4 M140-01-00 52 16-CFOhi®AS 1.11.6 The Contractor shall cooperate fully with requests for additional EDGE information and documentation from the EOD or the Contracting Authority. ARTICLE 2 - THE CONTRACTOR 2.1 Construction Procedures 2.1.1 The Contractor is solely responsible for and has control over all construction means, methods, manners, techniques, sequences, and procedures and for coordinating all portions of the Work. L If the Contract Documents give instructions that affect construction means, methods, manners, techniques, sequences, or procedures, the Contractor shall evaluate the jobsite safety of them and, except as stated below, shall be fully and solely responsible for the jobsite safety of the means, methods, manners, techniques, sequences, or procedures. 2 If the Contractor determines that the means, methods, manners, techniques, sequences, or procedures may not be safe, the Contractor shall give timely written notice to the Owner, the A/E, and the Contracting Authority. The Contractor shall not proceed with that portion of the Work without further written instructions from the A/E. Any modification of the Contract shall be in accordance with Article 7. 2.1.2 The Contractor shall lay out and coordinate all lines, levels, elevations, and measurements for all the Work, coordinate and verify existing conditions, and notify the A/E of discrepancies and conflicts before proceeding with installation or excavation. 2.1.3. The Contractor shall perform alt cutting, fitting, or patching required for the Work and shall not endanger the Project by cutting, excavating, or otherwise altering the Project, or any part of it. Jl If the Contractor requires sleeves for the Work, the Contractor shall furnish and coordinate installation of the sleeves in the work of others. The Contractor is responsible for the exact location and size of all holes and openings required to be formed or built for the Work, and shall coordinate with any work performed by others. 2 ‘The Contractor shall coordinate and allow sufficient time for installation of work by others before covering or closing the applicable portion of the Work. 3 The Contractor’s patching shalt match and blend with the existing or adjacent surface(s). 2.1.4 The Contractor shall comply with O.R.C. Sections 3781.25 through 3781.32. In addition, before starting excavation or trenching, the Contractor shall determine the location of any underground utilities and notify any public authority or utility having jurisdiction over the Project and secure any required approval. J The Contractor shall give notice at least 2 business days in advance of excavation to the owners of underground utilities registered with the Ohio Underground Utility Protection Services (“OUPS” at w: underground utilitics shown on the plans and specifications who are not registered members of OUPS. The owner of an underground utility is required within 48 hours notice to stake, mark, or otherwise designate the location of its utilities in the construction area together with its approximate depth. In the event that any underground utility owner fails to timely perform, the Contractor shall notify the A/E and contact the owner of the underground utility. 2010 Edition Jan. 2010) General Conditions ~ Stipulated Sum (Multipte-Prime Contract) M140-01-00 72 16-GC Page 00 72 16-11 UA00195State Architects Office 2.1.5 The Contractor shall install all Work in accordance with the Contract Documents and any installation recommendations of the manufacturer, including required temperature and humidity limits for installation of the various materials. 2.1.6 The Contractor shall comply with all requirements and conditions of the National Pollutant Discharge Elimination System (“NPDES”) gencral permit, including, but not limited to, implementing and maintaining the sedimentation and erosion control measures specified in the storm water pollution prevention plan prepared by the A/E pursuant to subparagraph 2.9.4, which are related to the Work, maintaining records of its construction activities, removing materials no longer required, and taking proper action if there is a reportable quantity spill. 2.1.7 The Contractor shall communicate with the Contracting Authority and the Owner through the ALE. 2.1.8 Ifthe Contracting Authority decides, at any time and in its sole discretion, to utilize the State’s Web-based project management system, known as the OAKS Capital Improvements (“OAKS CI") module, for the Project, the Contractor shall use OAKS Cl for all compatible services required under this Contract. All costs for the Contractor’s use of OAKS C] for the Project shall be included in the Contract Sum, and additional compensation shall not be provided. If the Contractor is unfamiliar with the proper use of OAKS CI, the Contractor shall provide its employees for training without additional compensation. 2.2 Review of Contract Documents and Field Conditions 2.2.1 Before starting each portion of the Work, the Contractor shall carefully study and compare the vatious Contract Documents relative to that portion of the Work, shall take field measurements of any existing conditions related to that portion of the Work, and shall observe any conditions at the Site affecting it. 2.2.2 lfthe Contractor finds any perceived ambiguity, conflict, error, omission, or discrepancy on or between any of the Contract Documents, or between any of the Contract Documents and any Applicable Law, the Contractor, before proceeding with the Work, shall promptly submit a Request for Interpretation (“RFI”) to the A/E for an interpretation or clarification. J Before submitting any RFI to the A/E, the Contractor shall carefully review the Contract Documents to ensure that the Contract Documents do not answer the RFT. 2 The A/E shall respond to an RFI within 3 days of receiving the RFI. 3 Any interpretation or clarification of the Contract Documents made by any Person other than the A/E, or in any manner other than writing, shall not be binding and the Contractor shall not rely upon it. A Ifthe Project is administered using OAKS Ci, the Contractor shall submit RFs to the A/E through the OAKS CI “Request for Interpretations” business process. 2.2.3. Ifthe Contractor believes that it is entitled to an adjustment of the Contract Sum or Contract Time, or both, on account of clarifications or instructions issued by the A/E in response to a RFE, the Contractor may request an adjustment to the Contract by giving written notice under subparagraph 7.2.3 within 7 days of receiving the A/E’s RFI response. 2.24 lfthe Contractor does not notify the A/E per subparagraph 2.2.3, the Contractor will have accepted the RFI response without an adjustment to the Contract Sum or Contract Time. General Conditions — Stipulated Sum (Multiple-Prime Contract) 2010 Edition Jan. 2010) Page 00 72 16-12 M140-01-00 72 16-GC. UA00196Obi@AS 2.3 Construction Supervision 2.3.1 Unless waived by the Contracting Authority in writing, the Contractor shall provide continuous supervision at the Site by a competent superintendent when any Work is being performed and the Contractor’s superintendent shall not be involved with any work other than the Project. 2.3.2 The Contractor's project manager and superintendent shall each have the responsibility and authority to act on behalf of the Contractor. All communications to the Contractor's project manager or superintendent shall be binding as if given directly to the Contractor. 2.3.3. The Contractor shall submit an outline of the qualifications and experience of the Contractor's proposed project manager and proposed superintendent, including references, to the A/E within 10 days of the Notice to Proceed. Al The Contracting Authority reserves the right to reject the Contractor's proposed project manager or proposed superintendent. Failure to notify the Contractor of the rejection within 30 days of receiving the required information shall indicate that the Contracting Authority has no objection. 2 Tf the Contracting Authority rejects the Contractor's proposed project manager or proposed superintendent, the Contractor shall replace the project manager or superintendent (as appropriate) with someone acceptable to the Contracting Authority at no additional cost. 23.4 The Contractor shall not replace its project manager or superintendent without prior written approval of the Contracting Authority. J If the Contractor proposes to change its project manager or superintendent, the Contractor shall submit written justification for the change to the A/E, along with the name and qualifications of the Contractor's proposed replacement. 2 The procedure provided in subparagraph 2.3.3 shall be conducted to evaluate the Contractor's proposed project manager or superintendent. 2.4 Protection of the Project 2.4.1 | The Contractor shall protect the Work from weather and maintain the Work and all materials, apparatus, and fixtures free from injury or damage until Final Acceptance, or Partial Occupancy if applicable, Jl The Contractor shall at all times cover or protect the Work. 2 The Contractor, at its expense, shall remove, and replace with new, any Work damaged as arcsult of Contractor's failure to provide coverage or protection. 3 The Contractor, at its expense, shall repair or replace any adjacent property, including, but not limited to, roads, walks, shrubbery, plants, trees, or turf, damaged during performance of the Work. 4 After the date of Final Acceptance, or Partial Occupancy if applicable, the Owner is responsible for protecting and maintaining all materials, apparatus, and fixtures for the occupied portion of the Project free from injury or damage. 2.4.2 The Lead Contractor shall protect the Project and existing or adjacent property from damage at all times and shall erect and maintain necessary barriers, furnish and keep lighted necessary danger signals at night, and take reasonable precautions to prevent injury or damage to individuals or property. 2010 Edition (Jan. 2010) General Conditions — Stipulated Sum (Multiple-Prime Contract) M140-01-00 72 16-GC Page 00 72 16-13 UA00197State Archited’s Olfice 24.3 The Contractor shall not load, nor permit any part of the Project to be loaded, in any manner that endangers the Project, or any portion thereof. The Contractor shall not subject any part of the Project or existing or adjacent property to stress or pressure that endangers the Project or property. 2.4.4 The Contractor shall provide all temporary bracing, shoring, and other structural support required for safety of the Project and proper execution of the Work. 2.4.5 Vibration, Noise, and Dust Control a In occupied buildings, vibrations, noise and dust control shall be provided. The Lead. Contractor or other Separate Contractor responsible for creating dust shall install dust barriers as required by the construction operations. 2 Exhaust of unfiltered air, dust, construction debris or other undesirable products released into the exterior atmosphere or into occupied areas of the building outside the Site will not be permitted. The Project Manager reserves the right to limit or stop the continuation of work if proper air quality standards are not maintained. 3 In certain occupied buildings, tasks might be of such a nature that noise and vibration cannot be tolerated. In such spaces, work shall be scheduled for other than normal working hours. The Contractor is cautioned that weekend or overtime work, if required, shall be performed at no additional cost. Permission to work other than standard hours shall be received from the Contracting Authority prior to the occurrence. Weekend and overtime work shail be reflected in the Construction Progress Schedule. 4 Vibration control and control of transmission of noise are the responsibility of the Contractor whose operations are creating the conditions. Principal considerations which shail be given to noise and vibration control are: A Noise control in compliance with Occupational Safety and Health Administration (“OSHA”) requirements for the health and safety of building occupants; control shall be for all areas of the facility, including equipment rooms, boiler rooms, and fan rooms. 2 Vibration control to limit sound produced by construction equipment, and for protection of the equipment existing in a building and the building structure