Preview
ngi71 - U36
IN THE COMMON PLEAS COURT OF FRANKLIN COUNTY, OHIO
CIVIL DIVISION
KEEN & CROSS ENVIRONMENTAL —: 1 LG
SERVICES, INC. : Qg. vit ¢ tas 1
504 Northland Blvd. : -
Cincinnati, Ohio 45240,
Plaintiff,
Iv
THE ALBERT M. HIGLEY CO.
12926 Chester Avenuc
|Clevetund, Ohio 44114,
sore t= hand = >
‘OLUMBUS CITY SCHOOLS
899 E. 17" Street : COMPLAINT WITH JURY
DEMAND ENDORSED HEREON
\Columbus, Ohio 43211,
~ and -
‘SAFECO INSURANCE CO. OF
MERIC. A
eas Governors Hill 2 3
cincinnati, Ohio 45249, z =
Defendants. 5 =
Ss 2
8
# S$
D1 SLIVEY MAIIAN 8 FUREY
‘ALEGAL PHOFESS-‘ONAL
ASSOCIATION
1.ONORTH MAN STRITT
‘SUITE “000
DAYTON ObK) 45422-1739
G37 273 6008D9171 - {037
DUNU VEY, MAITAN & FUMES
AcSOAL PROTSSOAL
ASSAICIATION
TG NORIM MAIN STIECT
SUITE 1006
SAYION OID 45402-1738
(ma 77346003,
. compensate Keen &.Cross.for changes in.scope of Kcen &.Cross__work, interfering and.delaying. . 2
FIRST CLAIM FOR RELIEF
1. At all relevant times, Defendant The Albert M. Higley Co (“Higley”) was a
lgencral contractor to Defendant Columbus City Schools for the renovation of the Crestview
Alternative Elementary School located at 251 E Weber Road, Columbus, Franklin County, Ohio
(the “Project”). Plaintiff docs not have a copy of such general contract and therefore 1s not able
ito attach the same to this Complaint.
2. On or about February 15, 2008, Plaintiff Keen & Cross Environmental Services,
inc. (“Keen & Cross”) entered into a subcontract with Higley to perform certain work on the
Project, as described in such subcontract A true and accurate copy of such subcontract 1s
‘attached hereto as Exhibit A and fully incorporated herein.
3. Keen & Cross fully performed its obligations under the above-referenced
contract, but Higley materially breached such contract by, inter alia, failing to properly
IKeen & Cross’ work on the Project, causing Keen & Cross to perform additional work and incur
ladditional expense on the Proyect and failing to pay Keen & Cross for the amounts set forth in
he parties’ contract, as amended.
4. As a direct and proximate result of Higley’s material breaches of contract, Keen
's Cross has becn damaged and 1s entitled to compensatory damages in the sum of
$1,000,891 80
SECOND CLAIM FOR RELIEF
5. Plaintiff incorporates the allegations set forth in Paragraphs | through 4, above, as
if fully rewritien herein.p9171 - q
MANLIVEY MAAN & URRY
ALEGAL PAOHFSSIONAL,
ASSOCIAIION
+0 NORTH MAN STREET
‘Sune 1000
Davros OHIO 43402 trae
07 290.6003
38
6 In the altemative, Keen & Cross performed work on the project which Higley was
contractually or otherwise obligated to perform for Defendant Columbus City Schools, thereby
conferring a benefit upon Higley which Higley accepted and appreciated.
7 The reasonable value of the benefit Keen & Cross conferred upon Higley is in the
sum of $1,000,891.80.
8. If Higley is not required to pay Keen & Cross the sum of $1,000,891.80 under the
‘circumstances of this case, Higley will be unjustly enriched thereby.
THIRD CLAIM FOR RELIEF
9. Plaintiff incorporates the allegations set forth in Paragraphs 1 through 8, above, as
if fully rewritten herein.
10 On April 17, 2009, and in accordance with O.R.C. § 1311.26, Keen & Cross
executed a Claim Affidavit to place a lien upon the public funds otherwise due Higley from
--{iColumbus-City Schools under the prime contract between-Higley and Columbus.City Schools.
A true and accurate copy of such Claim Affidavit is attached hereto as Exhibit B and fully
incorporated herein
Il By Federal Express delivery on April 21, 2009, Keen & Cross caused the Claim
IA ffidavit to be served upon Barbara A. Koelbl, Admimstrator for the Columbus City Schools. A
true and accurate copy of such letter 1s attached hereto as Exhibit C and fully incorporated
hercin.
12, Within thirty (30) days of filing the Clam Affidavit, on April 27, 2009, Keen &
‘Cross caused the Claim Affidavit to be recorded 1n the office of the Franklin County, Ohio
Recorder A true and accurate copy of the Claim Affidavit as recorded is attached hereto asD9171 - 1
PAINLEVES MATIAN 2 FLY
ALIGAL PROFESSIONAL
ASSOCIATION
119 NORTH MAN STREET
SUITE 009
DAYTON CHO 45402 1738
ern 23-800
39
Exhibit B and fully incorporated herein. The Claim Affidavit was filed within the time required
iby statute
13. All statutory and other conditions precedent have been met and the Claim
IA ffidavit constitutes a valid, binding lien upon the public funds otherwise due Higley from the
‘olumbus City Schools on the Project.
14. Upon information and belicf, upon receipt of the Claim Affidavit, Columbus City
Schools retained the funds referenced in the Claim Affidavit from the amounts otherwise due
Higley from the Columbus City Schools under the prime contract, and placed such funds in
lescrow as provided in O.R C. § 153.63 (the “Escrowed Funds”).
15. Pursuant toO R.C. § 1311 28, the Escrowed Funds arc to be released by
columbus City Schools at the times, in the amounts, and to the persons ordered by a court of
Lompetent jurisdiction, or by agreement of Keen & Cross and Higley. The Escrowed Funds arc
kurrently under the control and custody of the-Columbus City Schools. _ . . eee
16. Upon information and belief, pursuant to a contract between Columbus City
[ehoots and Higicy on the above-referenced Project, Columbus City Schools 1s holding the
jéscrowed Funds as payment for work which Higlcy contracted to perform, including payment
for work performed by Keen & Cross as subcontractor as referenced above.
17. As referenced hercin, a dispute has arisen conceming the rights of the parties to
this action to the funds being held by the Columbus City Schools for work on the ahove-
referenced Projcct.
18. Upon information and belicf, all partics to the action may claim some or all of the
funds being held by the Columbus City Schools. All partres who have or may claim an interest
| n the disposition of such funds have been named as partics herein.D9171 - U
DUNUATY, Mass & TURE,
ALEGAL 'OOFESSICNAL
“ASSOCIATION
sD MOHTH YAN SIBECT
‘Sunre reo
Gav1on OO 45402 1730,
(san 273-0003
HO
49. For the reasons sct forth above, pursuant to O.R.C. § 2721.01, et seq., Keen &
Cross 1s entitled to a judgment from this Court declaring the rights of the parties to the funds
being held by the Columbus City Schools To the extent the Court finds that some or all of such
funds are owed to Keen & Cross, Keen & Cross is further entitled to an order pursuant to O.R.C.
's 2721.09 enforcing such declaratory judgment and directing Columbus City Schools to pay such
jsums to Keen & Cross,
FOURTH CLAIM FOR RELIEF
20. Plaintiff incorporates the allegations set forth in Paragraphs | through 19, above,
|
‘as if fully rewritten herein.
| 21. ‘Hagley and Defendant Safeco Insurance Co. of America (“Safeco”) executed a
|
jbond issucd by Safeco for the benefit, inter alia, of Higley’s subcontractors on the above-
referenced Project to pay all lawful claims of such subcontractors for labor performed, or
| and Columbus City Schools (the “Bond™). A true and accurate copy of such Bond is attached
wereta as Exhibit D and fully mcorporated herein.
| 22, Keen & Cross has complicd with all the terms and conditions of the Bond and
lunder the circumstances of this casc as referenced above, Higley owcs Keen & Cross the sum of
$1,000,.891.80, plus interest, which amounts are unpaid by Higley and remain due and owing to
Keen & Cross.
23 By certified mailed dated Apri} 20, 2009, Keen & Cross served a copy of the
Claim Affidavit upon Plainuff and Safeco, which letter and Claim Affidavit constitute the
“Statement of Amount Due” as referenced in O R.C. § 153 56(A) (the “Surety Notice”). A true
Imatenals furnished, in carrying forward, performing, or completing the contract between Higley _D9171 - qa1
DUNEEVEL MAHAN 4 IT RRY
ALEGAL PRITSSIONAL
ASSOCIAHON
| ONORH MAN SIRERT
‘Sulsk 1900
DAYTON OHIO 45402- 738
#807) 223 6003
and accurate copy of such Surety Notice is attached hereto as Exhibit E and fully incorporated
herein.
24. In accordance with O.R C § 153.56(A), within ninety (90) days from the date on
which Keen & Cross last provided materials and/or labor to Higley on the above-referenced
Project, Keen & Cross, through the Surety Notice, duly notified Safeco that Higicy failed and
incglected to make the payments duc to Keen & Cross. The Surety Notice complied with all the
requirements of O R.C. § 153.56 for the perfection of the nght of action under the Bond.
25. More than sixty (60) days have passed since the furnishing of the Surety Notice
lhefore this claim was filed with this Court. This claim was brought within one (1) year from the
date of acceptance of the public project for which the Bond was issued.
26. — All of Keen & Cross’ services and materials for the above-referenced Project
were furnished within Franklin County, Ohio.
--* 27° — All legal requtrements and conditions precedent-have-been met or-have occurred = _
fe perfect Keen & Cross’ right of action against Safeco on the Bond.
28. Safeco is properly a party to this matter so that this Court may make a binding
Hetermination upon the parties hereto to order Safeco to pay the bond amounts to Keen & Cross
hs provided in O.R C. §$§ 2307.06 through .07
29. Keen & Cross has complicd with all terms and conditions of the Bond and is
| nerofore owed on such Bond the sum of $1,000,891.80, plus interest.
WHEREFORE, Plaintiff demands judgment:
1. On its First Claim for Relief against Defendant Albert M Higley Co. in the sum
of $3,000,891.80;D9171 - uaz
2. In the alternative, on its Second Claim for Relief against Defendant Higley in the
em of $1,000,891.80;
3. On its Third Claim for Relief in the form of a declaratory judgment determining
that Keen & Cross 1s entitled to $1,000,891.80 of the funds held in cscrow by the Columbus City
{Schools and an order by this Court directing Columbus City Schools to pay such sums to Keen &
[Cross, plus interest;
4. On its Fourth Claim for Relief against Defendants Higley and Safeco, jointly and
poverally, in the sum of $1,000,891.80, and in the form of an order directing Safeco to pay the
[sum of $1,000,891.80 on its Bond on the Project.
Keen & Cross further prays for interest on the above sumis, reasonable attorneys’ fees, the
‘costs of the within action and any other and further relief to which it may be entitled.
|
Respectfully submitted,
|
eo we. |. - ee. ee... -DUNLEVEY, MAHAN & FURRY _. _.
By. FDnaf? flim Coorg) ped.
David M. Rickert (0010483)
110 North Main Strect, Suite 1000
Dayton, Ohio 45402
Phone: 937-223-6003
Fax. 937-223-8550
Email: dmr@dmfdayton.com
ATTORNEY FOR PLAINTIFF
JURY DEMAND
Pursuant to Rulc 38(B) of the Ohio Rules of Civil Procedure, Plaintiff demands a trial by
hury of any and all issues triable to a jury in this matter.
7 ? i, (oorgu)
David M. Rickert (0010483)
DUMIVEY MAAN & [URRY
ALEGAT PAOTESSIONAL
‘ASSOCATION
1 ONOTH MAN STTEET 7
‘SUITE 1000
DAYTON O1L0 45402-1738
(asm 223.0005D9171.- U43 WS 5 f
: ‘CO
The Albert M. Higley Co.
CONSTRUCTION MANAGERS 2 8 ee Job No. 081398
Sub-JobNo.. 000 ‘
Galvmous, One 42218, ContractNo: —30850-1
TEL 614-227-5750 Contact Ed Keen
FAX 614-227-5751 Phone: 1-513-674-1700
FAX: 1-513-674-2230
SUBCONTRACT AGREEMENT
THIS AGREEMENT made as of the 15th day of February in the year of 2008_
BETWEEN the Contractor:
and the Subcontractor:
— -(Nameand Address], 8 |
The Project is:
(Name and Address)
The Owner is:
(Name and Address)
The Architect is:
(Name and Address)
THE ALBERT M., HIGLEY CO.
2926 Chester Avenue
Cleveland, Ohio 44114-4414
Keen & Cross Environmental Services, Inc.
-- —504 Northland-Blvd.
Cincinnati, Ohio 45240
Crestview Alternative Elementary
251 E. Weber Road
Columbus, OH 43202
Columbus City Schools
899 East 17" Street
Columbus, OH 43211
Feinknopf, Macioce, Shappa Architects, Inc
995 W. 3™ Avenue
Columbus, OH 43212
The Contractor and Subcontractor in consideration of the terms, covenants and conditions herein contained agree as
set forth below:D9171-- U44 NS Mle
VA
ARTICLE 1. SI ;COPE 0
Ld
12
13
22
23
The Subcontractor agrees to furnish all supervision, labor, materials, tools, scaffold and equipment
necessary to perform all work as set forth in Section 1.2 for the amount set forth in Section 1.3, for the
construction of the Project for the Contractor and the Owner in strict and complete accordance with the
Project plans, specifications, addenda and other documents identified in Schedule A attached hereto, and all
subsequently and duly issued modifications thereto by the Architect and/or Contractor.
The work to be performed by the Subcontractor including all supervision, labor, materials, tools, scaffolds
and equipment, (hereinafter called the WORK), is as follows, (in general caption only), and as further
identified and described in Schedule B attached hereto:
Hazardous Material Abatement & Selective Demolition
In consideration whereof, the Contractor agrees to pay the Subcontractor for the full and faithful
performance of the Work the sum of One Million One Hundred Twei sand Eight Hund:
Five Dollars ($1,120,875 00) (hereinafter “the Subcontract Sum"), The Subcontract Sum includes all
Federal, State, County, Municipal and other taxes imposed by law and based upon labor, services,
materials, equipment or other items required, performed, furnished or used for or in connection with the
Work, including but not limited to sales, use and personal property taxes payable by or levied or assessed.
against the Owner, Contractor or Subcontractor. Where the law requires any such taxes to be stated and
charged separately, the total price of all items included in the Work plus the amount of such taxes shall not
exceed the Subcontract Sum.
The Plans, Specifications, General Conditions, Addenda and General Contract, including this Agreement,
are available for examination by the Subcontractor at all reasonable times at the office of Contractor, and
are hereinafter sometimes referred to as the Contract Documents. The Subcontractor represents and agrees
that it has carefully examined and understands this Agreement and the other Contract Documents, has
investigated the nature, locality and site of the Work and the conditions and difficulties under which it is to
be performed, and that it enters into this Agreement on the basis of its own examination, investigation and
evaluation of all such matters and not in reliance upon any oral or written opinions or representations of
Contractor, or of the Owner, or of any of their respective officers, agents, servants, or employees.
With respect to the Work to be performed and furnished by the Subcontractor hereunder, the Subcontractor
agrees to be bound to Contractor by cach and all of the terms and provisions of the General Contract and
the other Contract Documents, and to assume towards Contractor all of the duties, obligations and
responsibilities that Contractor by those Contract Documents assumes towards the Owner, and the
Subcontractor agrees further that Contractor shall have the same rights and remedies against the
Subcontractor as the Owner under the terms and provisions of the General Contract and other Contract
Documents has against Contractor with the same force and effect as though every such duty, obligation,
responsibility, right or remedy were fully set forth herein. The terms and provisions of this Agreement with
respect to the Work to be performed and furnished by the Subcontractor hereunder are intended to be and
shall be in addition to and not in substitution for any of the terms and provisions of the General Contract
and the other Contract Documents.
This Agreement, the provisions of the General Contract and other Contract Documents are intended to
supplement and complement each other and shall, where possible, be thus interpreted. If, however, any
provisions of this Agreement irreconcilably conflicts with a provision of the General Contract and the other
Contract Documents, the provision imposing the greater duty or obligation on the Subcontractor shall
govern.D9171 .- U45 A Le
ARTICLE 3. CONTRACT TIME.
3.1
3.2
3.3
3.4
The Subcontractor shall commence the Work when notified to do so by Contractor and shall diligently and
continuously prosecute and complete the Work and coordinate the Work with the other work being
performed on the Project, in accordance with the Project Schedule, al] Milestone Dates (as identified in
Article 6) and any other scheduling requirements listed in this Agreement, so as not to delay the
commencement, progress or completion of the whole or any part of the Work or other work on the Project
(hereinafter “Subcontract Time”).
Subcontractor shall prepare and submit a detailed schedule identifying in ample detail, as required by
Contractor, the activities which comprise Subcontractor’s schedule of Work required under this Agrcement.
Subcontractor shall identify all manpower requirements required to support the activity durations of
Subcontractor’s Work and other information as requested by Contractor. The Contractor shall have the
Tight, but not the obligation, to coordinate the Subcontractor’s schedule with the schedules of the
Contractor and the other Subcontractors (hereinafter “Project Schedule”). Subcontractor agrees to abide by
and perform its obligations in accordance with the Project Schedule.
The Contractor reserves the right to modify any portion of the Project Schedule with respect to the
sequence or duration of the Sabcontractor’s Work, the Project or any portion thereof. The Subcontractor
shall use its best skill and judgment to cause the Work to be performed in a prompt and expeditious manner
and m accordance with the Project Schedule, the Milestone Dates or any amendments thereto.
The Subcontractor acknowledges and agrees that ag the Project progresses, the Contractor may change
and/or modify the Project Schedule due to factors inherent in the Work to be performed for the Project. As
a result, Subcontractor’s Work may be resequenced and/or rescheduled by the Contractor in order to
coordinate the work of the Subcontractor with that of other subcontractors or the Owner's other contractors,
ifany, and to accommodate the needs and requirements of the Owner or the Project.
ARTICLE 4. PROGRESS PAYMENTS, _ | - ee .
41
4.2
Prior to submittal of the first Application for Payment, Subcontractor shall submit to Contractor for its
approval, a schedule of values of all portions of the Work, divided and segregated so as to facilitate
Progress Payments under this Agreement (a “Schedule of Values”). To the fullest practical extent, the
Schedule of Values shall be based on the Subcontract Amount as supported by subcontracts and purchase
orders. Subcontractor shall also provide Contractor with all supporting data reasonably requested by
Contractor to substantiate the accuracy of the Schedule of Values. Unless otherwise agreed by Contractor,
each Change Order which increases or decreases the Subcontract Amounts shall be accounted for as a
separate line on the Schedule of Values. Each Application for Payment shall report the status of each
Change Order in addition to the original Schedule of Values. The Schedule of Values may only be
amended by means of a Change Order signed by Contractor.
On or before the 25" day of each month during the performance of the Work, Subcontractor shall submit
to Contractor a written request for payment (an “Application for Payment”). Such Application for Payment
shall be in a form approved by Contractor, which shall set forth the Subcontract Amount incurred to the
date of such Application for Payment, allocated among the categories set forth in the Schedule of Values
and separately stating that portion of the Subcontract Amount that constitutes materials, supplies, systems,
appliances, equipment, fixtures and other items required for or in connection with the construction,
furnishing, or equipping of, or for inclusion in, the Project and all sales and ase taxes payable with respect
to such items. To the extent not previously furnished, each Application for Payment shall be accompanied
by such supporting evidence required by Contractor to verify the Amount included in each Application for
Payment and by original executed partial waivers of all Liens for all Work performed and all services and
materials provided with respect to the Project, to the extent Contractor has made payment to Subcontractor
for such items pursuant to all prior Applications for Payment. Each Application for Payment shall contain
an allocation of the percentage of completion of cach portion of Work as of the end of the period covered
by the Application for Payment. Subject to other provisions of the Contract documents, the amount of each
progress payment shall be computed as follows:D9171 - U46 mh L
43
44
J Take that portion of the Subcontract Amount properly allocable to completed Work as determined
by muluplying the percentage completion of cach portion of the Work by the share of the
Subcontract Amount allocated to that portion of the Work in the Schedule of Values, less retainage
of Eight percent (8%).
2 Add that portion of the Subcontract Amount properly allocable to materials and equipment
delivered and suitably stored at the Site, or stored off site (if provided by the General Contract, for
subsequent incorporation in the completed Work), less retuinage of Eight percent (8%).
3 Subtract the aggregate of previous payments made by Contractor.
4 Subtract amounts for which Contractor, Owner, or Architect has withheld or nullified in a
previous application for payment.
5 Add, upon Substantial Completion of work, a sum sufficient to increase the total payments to One
Hundred percent (100%) of the ful] amount of the Subcontract Amount less amounts withheld for
incomplete Work, unsettled liens and claims or disputes.
Within ten (10) days of receipt of payment for the same from Owner under the General Contract,
Contractor shall make a progress payment to Subcontractor equal to the amount actually received from
Owner less any amounts withheld pursuant to this Agreement or any other Agreement between Contractor
and Subcontractor. It is expressly agreed by and between Contractor and Subcontractor that the receipt by
Contractor of payment from the Owner which includes the requested amount is an express condition
precedent to Contractor's obligation to pay Subcontractor. If Contractor has provided payment and/or
performance bond(s) for the Project, the obligation of the surety under said bond(s) to make any payment to
the Subcontractor (whether an interim or final payment) or any other claimant is subject to an express
condition precedent that Contractor (or its surety) receive payment therefor by the Owner. No payment,
(final or otherwise), made under or in connection with this Agreement shall be conclusive evidence of the
Subcontractors performance of its Work pursuant to this Agreement, in whole or in part, and no such
payment shall be construed to be an acceptance of defective, faulty or improper work or materials nor shall”
payment release the Subcontractor from any of its obligations under this Agreement.
Regardless of the terms of payment provided for herein, the Contractor shall not be required to make any
payments that would leave a balance due to the Subcontractor insufficient to cover the retained percentage
plus an amount sufficient to satisfy all obligations of the Subcontractor for labor, materials, equipment,
services, etc., furnished or to be furnished by the Subcontractor hereunder.
ARTICLE 5. FINAL PAYMENT.
5.1
The final payment shall be due within forty-five (45) days after the completion and acceptance of the Work
by the Contractor, Architect, and the Owner, provided first, however, that (i) Contractor shall have received
final payment thereof from the Owner, (ii) the Subcontractor shall have furnished evidence satisfactory to
Contractor that there arc no claims, obligations or licns outstanding or unsatisfied for labor, services,
materials, equipment, taxes or other items performed, furnished or incurred for or in connection with the
Work, (iii) delivery of all guaranties, warranties, bonds, instruction manuals, performance charts, diagrams,
as-built drawings and similar items required of Subcontractor or its suppliers or subcontractors and (iv) the
Subcontractor shall have executed and delivered in a form satisfactory to Contractor a General Release
Tunning to and in favor of Contractor and the Owner. The satisfaction of all aforesaid requirements is an
express condition precedent to Contractor's obligation to make final payment to Subcontractor.
ARTICLE 6. PROGRESS AND COMPLETION.
6.1
The Subcontractor acknowledges that performance of the Work and Substantial Completion of the Project
within the Subcontract Time is an essential condition of this Agreement. Following commencement, the
Subcontractor shall carry the Work forward with competent, adequate, properly skilled forces to maintainD9171 ~ U47 ‘Wo 1.
6.2
63
6.4
progress in accordance with the Project Schedule. The Work shall not be suspended or shut down, but shall
progress continuously and expeditiously, unless otherwise approved by the Contractor.
The Subcontractor agrees to prosecute and complete the Work in accordance with the Milestone Dates set
forth in the Contract Documents or as otherwise set forth in Schedule D, attached hereto.
To the extent provided in the General Contract, should the progress, performance or completion of any
portion or portions of or the whole of the Work contemplated in the Contract be delayed as the result of:
J Any act or neglect of Owner or any of its agents, affiliates, or representatives;
2 Any acts or omissions of any separate contractor engaged by Owner to work on the Project;
3 Any Change Order requested by the Owner if the Change Order included additional time;
4 Labor strikes, work slowdowns or stoppages, or other actions intended to adversely affect the
transportation of matenals or equipment or the progress of the Work, which is not the result of
strikes or work stoppages prohibited by Article 18;
5 Tornado, fire, hurricane, blizzard, earthquake, flood, other acts of God, or any other natural event
not within the control of the Subcontractor that prevents the progress of the Work;
6 Delay authorized by the Owner pending resolution of a dispute;
7 Acts of the public enemy, acts of the State, Federal or local Government in its sovereign capacity;
8 Any other cause which the Contractor or the Owner determines may justify a delay;
- 9 -— - Removal of. asbestos and toxic or hazardous substances from the Site that is not within the Scope
of the Work,
10 Delays for a reasonable period incurred to investigate any claim by the Subcontractor for
concealed conditions;
Al The occurrence of unusually severe weather-related delays in excess of forty (40) work days per
twelve (12)}-month period;
12 Order of any court of competent jurisdiction enjoining the performance of the Work that is not
proximately caused by the actions or inactions of the Subcontractor; or
13 Delays proximately caused solely by the actions or inactions of the Contractor and not otherwise
caused, in whole or in part, by any event listed in Sections 6.3.1 through 6.3.13 above;
the time of completion of the portion or portions of the Work directly affected by such delay, and the
Subcontract Time, shall, upon request of the Subcontractor as provided in Section 6.4, be extended by a
reasonable period, in no event to exceed the time lost thereby. The Subcontractor and the Contractor agrec
that the existence and duration of any delay in the progress, performance or completion of any portion or
portions of the whole of the Work shall be exclusively established through the Project Schedule as affecting
or impacting the Critical Path of the Contractor’s performance. Delays which do not affect or impact the
Critical Path of Contractor's performance as reflected on the Project Schedule shall not be eligible for an
extension to the Subcontract Time.
Should the Subcontractor reasonably believe, in accordance with Section 6.3, that it is entitled to an
extension of time for completion of any portiun or portions of the Work, the Subcontractor shall, within
forty-eight (48) hours after the occurrence of the cause of the delay, notify the Contractor, in writing, of
such belief, setting forth (a) the cause for the delay, (b) a description of the portion or portions of WorkD9171 - U48 hy
ao
affected thereby, (c) an estimate of the probable effect of such delay on the progress and completion of the
Work, and (d) all details pertinent thereto. A subsequent written application for the specific number of
days of extension of time requested shalt be made by the Subcontractor to the Contractor within seven (7)
days after the effects of the delay can be ascertained through use of the Project Schedule. Any change in
the Subcontract Time resulting from such claim(s) shall be authorized by a Change Order.
65 It is a condition precedent to the consideration or prosecution of any claim for an extension of time that the
foregoing provisions regarding the timing of notice be strictly adhered to in cach and every instance and, if
the Subcontractor fails to comply, the claim shall be deemed to have been waived.
6.6 To the extent any change in the Work would significantly affect the time and progress of the Work in the
opinion of the Subcontractor, the Subcontractor shall make any request for time extension no later than
when the related Change Order request is first submitted to the Contractor.
67 The Subcontractor agrees that it shall have no claim for an increase in the Subcontract Amount for delay,
disruption, interference, acceleration or hindrance caused, in whole or in part, by reason of the events set
forth in Sections 6.3.4 through 6.3.7, and 6.3.9 through 6.3.12. The Subcontractor agrees to accept, as its
sole and exclusive remedy with respect to such events, an extension of contract time unless the Contractor
elects to accelerate Subcontractor’s performance hereunder in lieu of providing said extension of time. If
Contractor elects to accelerate Subcontractor’s performance, Contractor agrees to adjust the Subcontract
Amount for the premium portion of any, wages and associated benefits incurred by the Subcontractor
attributable to the acceleration in performance.
6.8 Tt is recognized and agreed by the Subcontractor that no claim for an increase in the Subcontract Tune for
either acceleration, delay disruption, interference or hindrance will be allowed based on changes in the
Project Schedule which are of the type ordinarily experienced in projects of simular size and complexity or
pursuant to Sections 3.3 and 3.4.
cote e 6.9 ~ -If-the Subcontractor is delayed, accelerated, disrupted, interfered or hindered on account of or resulting
from the conditions set forth in Sections 6.3.1 through 6.3.3 or 6.3.8, the Subcontractor agrees that it shall
have no claim nor right to any cost reimbursement, compensation or damages from the Contractor except to
the extent that the Contractor is entitled to and actually receives a corresponding cost reimbursement,
compensation or damages from the Owner pursuant to the General Contract for said delays, acceleration,
disruption, interference or hindrance. The Subcontractor agrees that any claim or right to any cost
reimbursement, compensation or damages for the above shall be governed by the terms and conditions of
Article 12 and the Subcontractor agrees to accept, as its sole and exclusive remedy, the amount, if any,
actually received by the Contractor from the Owner, less the costs and expenses set forth in Article 12.
6.10 Ifthe Subcontractor is delayed on account of or resulting from the conditions set forth in Section 6.3.13, the
Subcontractor agrees that its claim(s) for an increase in the Subcontract Amount shall be lumited to the
actual cost incurred by the Subcontractor for maintaining an extended presence on the Site for the period of
delay, any increase in the cost of labor or materials and any Contractor approved demobilization and
remobilization costs. The Subcontractor agrees that it shall have no claim(s) and waives recoverability for
same against the Contractor for consequential, special, incidental or indirect loss, cost or expense on
account of or resulting from the conditions set forth in Section 6.3.13.
6.11 | The Subcontractor shalf fumish such manpower, materials, facilities and equipment and shall work such
hours, including night shifts and premium time operations, as may be necessary to insure the prosecution
and completion of the Work within the Subcontract Time. If Work actually in place falls behind the Project
Schedule for reasons that are the responsibility of the Subcontractor, and it becomes apparent that the Work
will not be completed within the Subcontract Time, as adjusted, the Subcontractor agrees that it will, as
necessary, accelerate its effort at no additional cost to the Contractor to improve its progress. Such
acceleration shall include as necessary some or all of the following actions:
ak Increase manpower and crafts;D9171- 'U49 Mo ta
6.12
6.13
6.14
2 Increase the number of working hours per shift, shifts per working day, working days per week, or
the amount of equipment, or any combination of the foregoing; and/or
3 Reschedule activities.
The Contractor may also require the Subcontractor to submit a revised schedule and description of
corrective actions it intends to take to assure completion of Work within the Subcontract Time. If the
Contractor reasonably finds the proposed plan not acceptable, it may require the Subcontractor to submit
revisions.
Failure of the Subcontractor to substantially comply with the requirements of Section 6.11 shall be
considered grounds for a determination by the Contractor that the Subcontractor is failing to prosecute the
Work with such diligence as will ensure its completion within the time specified.
The Contractor may, at the Contractor’s convenience and without cause, order the Subcontractor in writing
to suspend, delay or interrupt the Work in whole or in part for such period of time as the Contractor may
determine. If the Contractor suspends, delays or interrupts the Work for the Contractor’s convenience, the
Contractor shall pay to the Subcontractor the actual direct cost of such suspension, delay, or mterruption,
taking into account all relevant facts, and the Subcontract Time shall be increased by the period of such
suspension, delay, or interruption. No adjustment shall be made to the extent:
ad That performance is, was or would have been so suspended, delayed or interrupted by another
cause for which Subcontractor is responsible; or
2 That an equitable adjustment is made under another provision of this Agreement.
ARTICLE 7. CONSIGNING,
- - 71
- The Subcontractor in making or ordering shipments shall not consign or have consigned materials,
equipment or any other items in the name of Contractor. Contractor is under no obligation to make
payment for charges on shipments made by or to the Subcontractor but may, at its option, pay such charges,
in which case the Subcontractor shall reimburse Contractor for the amount of such payments plus a service
charge of twenty-five percent (25%) of the amount so paid.
ARTICLE 8. SHOP DRAWINGS.
82
8.3
Notwithstanding the dimensions given on the Plans, Specifications and other Contract Documents, it shall
be the obligation and responsibility of the Subcontractor to take such measurements as will insure the
proper matching and fitting of the Work covered by this Agreement with contiguous work,
The Subcontractor shall prepare and submit to Contractor such shop drawings as maybe necessary or
required by the Contract Documents to describe completely the details and construction of the Work.
Approval of such shop drawings by Contractor and/or the Architect shall not relieve the Subcontractor of
its obligation to perform the Work in strict accordance with the Plans, Specifications, the Additional
Provisions hereof and other Contract Documents, nor of its responsibility for the proper matching and
fitting of the Work with contiguous work.
The Subcontractor shall submit to the Contractor, with sufficient promptness and in such sequence as to
cause no delay in the progress of the Work or the Work of the Contractor or any separate subcontractor, all
Shop Drawings, Product Data and Samples required by the Contract Documents. The Subcontractor shall
indemnify the Contractor from all loss, cost and expense (including all attorney's fees and expenses)
incurred by the Contractor that may arise from or relate to any claim or allegation that the Subcontractor’s
submission of Shop Drawings, Product Data and Samples affected the progress of the Work or the Work of
the Contractor or any separate subcontractor.D9171 - U50 \ tL.
84
85
8.6
The Subcontractor’s submission of Shop Drawings to the Contractor shall constitute the Subcontractor’s
representation that the Subcontractor has reviewed the submission for accuracy, completeness, and
compliance with all Contract Documents. The Subcontractor shall not be relieved of responsibility for any
deviation from the requirements of the Contract Documents by the Contractor's, the Architect's or the
Owner's review of Shop Drawings, Product Data or Samples unless the Subcontractor has specifically
informed the Contractor or the Owner in writing of such deviation at the time of submission and the
Contractor or Owner has given written approval to the specific deviation. The Subcontractor shall not be
relieved from responsibility for errors or omissions in the Shop Drawings, Product Data or Samples,
including, without limitation, any failure to comply with the Contract Documents, by the Contractor's, the
Architect's or the Owner’s review thereof.
The Subcontractor shall make any corrections required by the Owner and shall resubmit the required
number of corrected copies of Shop Drawings or new Samples. Resubmittal of Shop Drawings
necessitated by required corrections shall not be a cause for extension of Subcontract Time. The
Subcontractor shall direct specific attention in writing or on resubmitted Shop Drawings, Product Data or
Samples, to revisions other than the corrections requested on previous submittals.
‘When professional certifications or calculations of performance criteria for materials, systems, designs or
equipment is required by the Contract Documents, the Contractor shall be entitled to rely upon the accuracy
and completeness of such calculations and certifications. The Subcontractor agrees to indemnify and hold
harmless the Contractor from all loss, cost and expense (including attorneys fees and expenses) incurred
due to any allegation that the certifications or calculations of performance criteria for materials, systems,
designs or equipment is inadequate, in error or not in conformance with the Contract Documents.
ARTICLE 9. SUITABILITY OF OTHERS WORK.
9.1
Should the proper and accurate performance of the Work hereunder depend upon the proper and accurate
performance of other work not covered by this Agreement, the Subcontractor shall carefully examine such
other work, determine whether it is in fit, ready and suitable condition for the proper and accurate
performance of the Work hereunder, use all means necessary to discover any defects in such othér work,
and before proceeding with the Work hereunder, report promptly any such improper conditions and defects
to Contractor, in writing, and allow Contractor a reasonable time to have such improper conditions and
defects remedied. Should Subcontractor fail to provide written notice to Contractor, as required herein,
before proceeding or taking remedial action, Subcontractor shall assume the full and sole responsibility and
liability for all cost, expense or damage incurred by Subcontractor for said installation or remedial action
and/or incurred by Contractor in correcting said defect in the Work (including replacement of
Subcontractor's work or material) and Subcontractor releases Contractor from all liability and agrees to
indemnify Contractor from all costs, expenses or damages, (including attorney's fees and expenses),
incurred thereby.
ARTICLE 10. PLANS.
10.1
10.2
The Work hereunder is to be Performed and furnished under the direction and to the satisfaction of the
Owner, the Architect and Contractor. The decision of the Owner or the Architect as to the true
construction, meaning and intent of the Plans and Specifications shall be final and binding upon the
Subcontractor. Contractor will furnish to the Subcontractor such additional information and plans as may
be prepared by the Architect to further describe the Work to be performed and furnished by the
Subcontractor. Subcontractor shall conform and abide by the same. The Subcontractor shal] not make any
changes, additions and/or omissions in the Work except upon written order of Contractor as provided in
Article 11 hereof.
The Subcontractor shall maintain at the Site or at such other locations as it may identify to Contractor from
time to time, for its use and that of the Contractor, one copy of all Drawings, Specifications, Addenda,
reviewed Shop Drawings, Change Orders and other Modifications, in good order and marked to record all
changes made during construction, Reviewed Shop Drawings, Product Data, Samples, Drawings, etc.,D9171 -'U51 me A
marked to record changes between as built conditions and design conditions shall be delivered to the
Contractor upon completion of the Work.
10.3. At completion of the Work and before final certificate of completion is issued, the Subcontractor shall turn
over to the Contractor, all sets of Drawings which were stamped and approved by the Building Department,
and all permits or certificates issued for the Work.
10.4 The parties hereby agree that Contractor shall have the irrevocable, nonexclusive right to utilize and/or
copy any designs, Drawings, Specifications or Contract Documents, coordination and other documents
prepared by Subcontractor for the Project in the event Contractor completes the Work with another
subcontractor upon the material and continuing default of the Subcontractor after written notice thereof and
termination by Contractor in accordance with this Agreement, expands the Project, corrects any
deficiencies, or makes any renovations or repairs to the Project. The Contractor agrees that it shall remove
all identification legends and symbols including all seals, stamps and other items which identify
Subcontractor as the author of the Drawings and Specifications. The Contractor shall neither hold out nor
attribute any altered, modified or revised Drawings and Specifications to be the work product of
Subcontractor, Any alteration, modification or revision to the Drawings and Specifications will be
performed by architects and/or engineers suitably licensed who will be deemed architects or engineers of
record for all work performed with the altered Drawings and Specifications. The Subcontractor shall have
no responsibility for the Contractor's use of designs, Drawings, Specifications, or other Contract
Documents as permitted herein The Contractor acknowledges the Subcontractor Construction Documents
as instruments of professional service. Nevertheless, the Contractor shall have a nonexclusive irrevocable
license as provided herein in all documents and copyrightable works prepared under or pursuant to the
Subcontract.
ARTICLE 11. CHANGES.
11.1 Contractor reserves the right, from time to time, whether the Work, or any part thereof, shall or shall not
— -bave.been completed, to make changes, additions and/or omissions in the Work as it may deem necessary,
upon written order to the Subcontractor. The value of the work to be changed, added or omitted shall be ~
stated in said written order and shall be added to or deducted from the Subcontract Amount.
11.2 The value of the work to be changed, added or omitted shall be determined by the lump sum or unit prices,
if any, stipulated herein for such work If no such prices are stipulated, such value shall be determined by
whichever of the following methods or combination thereof Contractor may elect:
al By adding or deducting a lump sum or an amount determined by the unit prices listed in
Schedule C attached hereto, or as may be otherwise agreed upon between the parties hereto.
2 By adding (1) the actual net cost to the Subcontractor of labor in accordance with the established
rates, including required union benefits and payroll taxes and insurance, (2) the actual cost to the
Subcontractor of materials and equipment and such other direct costs as may be approved by
Contractor, (3) an allowance of 10% for overhead on items(1) and (2) above, and (4) an
allowance of 5% for profit on items (1), (2) and (3) above.
11.3. Should the parties hereto be unable to agree as to the value of the work to be changed, added or omitted, the
Subcontractor shall proceed with the work promptly under the written order of Contractor, and the
determination of the value of the work shall be subject to the provisions of Articles 12 or 30 herein.
11.4 In the case of omitted work, Contractor shall have the right to withhold from payments due or to become
due to the Subcontractor an amount which, in Contractor's opinion, is equal to the value of such work until
such time as the value thereof is determined by agreement of the Architect or the provisions of Articles 12
or 30 herein.4 ’ Lo
D9171 - U52 mA :
11.5
All changes, additions or omissions in the Work ordered in writing by Contractor shall be deemed to be a
part of the Work hereunder and shall be performed and furnished in strict accordance with all of the terms
and provisions of this Agreement and the other Contract Documents,
ARTICLE 12. EXTRAS,
12.1
12.2
If the Subcontractor makes a cluim for an increase to the Contract Sum, Subcontractor shall give Contractor
written notice of same within five (5) days (or such shorter period of time as set forth in the Contract
Documents) after the occurrence of the event giving rise to such claim. This notice shall be given by the
Subcontractor and approval to proceed issued by the Contractor, in writing, before the Subcontractor
proceeds to perform said extra work or incur said extra expense. Subcontractor agrees that said written
notice and written approval to proceed are conditions precedent to Subcontractor's right to assert said claim
against Contractor and Subcontractor waives any claim if Subcontractor fails to comply with the above
provisions. The Subcontractor further agrees not to proceed with the performance of any extra work or
incur said extra expense hereunder unless the same shall be fully agreed upon in writing by the Contractor
prior to the performance of any such extra work or incur said extra expense. In the event that agreement
cannot be reached as to the value of said extra work or extra expense, at the Contractor's direction, the
Subcontractor shall proceed with said extra work or extra expense under protest and may seek remedy in
accordance with the procedures as stated in this Agreement and the other Contract Documents.
Notwithstanding the above, the Subcontractor agrees that it shall accept, as full and complete satisfaction of
any and all claims against the Contractor for extras or extra expense, pursuant to this Agreement, the
amount, if any, that the Contractor actually receives by settlement, negotiation, judgment or otherwise from
the Owner for said extras or extra expense. The Subcontractor acknowledges and agrees that it has no
claim or demand and will not seek recovery from the Contractor except to the extent of the recovery
actually obtained by the Contractor from the Owner. The Contractor agrees to submit the Subcontractor's
claim for extras or extra expense in accordance with the terms and conditions of the General Contract in the
form and substance as presented by the Subcontractor to the Contractor. The Subcontractor agrees to
provide the Contractor with all necessary assistance required by the Contractor to advance the
Subcontractor’s claim for extras Or extra expense including, but not limitéd tO, éxpert advice and assistance: ~~
The Subcontractor agrees to promptly reimburse the Contractor, upon demand, for all cost and expense
(including attommey’s fees and expenses) incurred by the Contractor in advancing the Subcontractor’s
claims for extras or extra expense to the Owner. Should the Subcontractor fail to promptly reimburse the
Contractor within fourteen (14) days from demand, the Subcontractor acknowledges that it has waived said
claim for extras or extra expense and has fully and completely released the Contractor from any further
responsibility to the Subcontractor unless the Contractor agrees in writing otherwise.
ARTICLE 13. INSPECTION/REJECTION OF THE WORK.
13.1
14.1
The Subcontractor shall at all times provide sufficient, safe and proper facilities for the inspection of the
Work by Contractor, the Architect, and their authorized representatives in the field, at shops, or at any other
place where materials or equipment for the work are in the course of preparation, manufacture, treatment or
storage, The Subcontractor shall, within twenty-four (24) hours after receiving written notice from
Contractor to that effect, proceed to take down all portions of the Work and remove from the premises all
materials, whether worked or unworked, which the Architect, Owner, or Contractor shall condemn as
unsound, defective or improper or as in any way failing to conform to this Agreement or the Plans,
Specifications or other Contract Documents, and the Subcontractor, at its own cost and expense, shall
replace the same with proper and satisfact
Preview
ngi71 - U36 IN THE COMMON PLEAS COURT OF FRANKLIN COUNTY, OHIO CIVIL DIVISION KEEN & CROSS ENVIRONMENTAL —: 1 LG SERVICES, INC. : Qg. vit ¢ tas 1 504 Northland Blvd. : - Cincinnati, Ohio 45240, Plaintiff, Iv THE ALBERT M. HIGLEY CO. 12926 Chester Avenuc |Clevetund, Ohio 44114, sore t= hand = > ‘OLUMBUS CITY SCHOOLS 899 E. 17" Street : COMPLAINT WITH JURY DEMAND ENDORSED HEREON \Columbus, Ohio 43211, ~ and - ‘SAFECO INSURANCE CO. OF MERIC. A eas Governors Hill 2 3 cincinnati, Ohio 45249, z = Defendants. 5 = Ss 2 8 # S$ D1 SLIVEY MAIIAN 8 FUREY ‘ALEGAL PHOFESS-‘ONAL ASSOCIATION 1.ONORTH MAN STRITT ‘SUITE “000 DAYTON ObK) 45422-1739 G37 273 6008D9171 - {037 DUNU VEY, MAITAN & FUMES AcSOAL PROTSSOAL ASSAICIATION TG NORIM MAIN STIECT SUITE 1006 SAYION OID 45402-1738 (ma 77346003, . compensate Keen &.Cross.for changes in.scope of Kcen &.Cross__work, interfering and.delaying. . 2 FIRST CLAIM FOR RELIEF 1. At all relevant times, Defendant The Albert M. Higley Co (“Higley”) was a lgencral contractor to Defendant Columbus City Schools for the renovation of the Crestview Alternative Elementary School located at 251 E Weber Road, Columbus, Franklin County, Ohio (the “Project”). Plaintiff docs not have a copy of such general contract and therefore 1s not able ito attach the same to this Complaint. 2. On or about February 15, 2008, Plaintiff Keen & Cross Environmental Services, inc. (“Keen & Cross”) entered into a subcontract with Higley to perform certain work on the Project, as described in such subcontract A true and accurate copy of such subcontract 1s ‘attached hereto as Exhibit A and fully incorporated herein. 3. Keen & Cross fully performed its obligations under the above-referenced contract, but Higley materially breached such contract by, inter alia, failing to properly IKeen & Cross’ work on the Project, causing Keen & Cross to perform additional work and incur ladditional expense on the Proyect and failing to pay Keen & Cross for the amounts set forth in he parties’ contract, as amended. 4. As a direct and proximate result of Higley’s material breaches of contract, Keen 's Cross has becn damaged and 1s entitled to compensatory damages in the sum of $1,000,891 80 SECOND CLAIM FOR RELIEF 5. Plaintiff incorporates the allegations set forth in Paragraphs | through 4, above, as if fully rewritien herein.p9171 - q MANLIVEY MAAN & URRY ALEGAL PAOHFSSIONAL, ASSOCIAIION +0 NORTH MAN STREET ‘Sune 1000 Davros OHIO 43402 trae 07 290.6003 38 6 In the altemative, Keen & Cross performed work on the project which Higley was contractually or otherwise obligated to perform for Defendant Columbus City Schools, thereby conferring a benefit upon Higley which Higley accepted and appreciated. 7 The reasonable value of the benefit Keen & Cross conferred upon Higley is in the sum of $1,000,891.80. 8. If Higley is not required to pay Keen & Cross the sum of $1,000,891.80 under the ‘circumstances of this case, Higley will be unjustly enriched thereby. THIRD CLAIM FOR RELIEF 9. Plaintiff incorporates the allegations set forth in Paragraphs 1 through 8, above, as if fully rewritten herein. 10 On April 17, 2009, and in accordance with O.R.C. § 1311.26, Keen & Cross executed a Claim Affidavit to place a lien upon the public funds otherwise due Higley from --{iColumbus-City Schools under the prime contract between-Higley and Columbus.City Schools. A true and accurate copy of such Claim Affidavit is attached hereto as Exhibit B and fully incorporated herein Il By Federal Express delivery on April 21, 2009, Keen & Cross caused the Claim IA ffidavit to be served upon Barbara A. Koelbl, Admimstrator for the Columbus City Schools. A true and accurate copy of such letter 1s attached hereto as Exhibit C and fully incorporated hercin. 12, Within thirty (30) days of filing the Clam Affidavit, on April 27, 2009, Keen & ‘Cross caused the Claim Affidavit to be recorded 1n the office of the Franklin County, Ohio Recorder A true and accurate copy of the Claim Affidavit as recorded is attached hereto asD9171 - 1 PAINLEVES MATIAN 2 FLY ALIGAL PROFESSIONAL ASSOCIATION 119 NORTH MAN STREET SUITE 009 DAYTON CHO 45402 1738 ern 23-800 39 Exhibit B and fully incorporated herein. The Claim Affidavit was filed within the time required iby statute 13. All statutory and other conditions precedent have been met and the Claim IA ffidavit constitutes a valid, binding lien upon the public funds otherwise due Higley from the ‘olumbus City Schools on the Project. 14. Upon information and belicf, upon receipt of the Claim Affidavit, Columbus City Schools retained the funds referenced in the Claim Affidavit from the amounts otherwise due Higley from the Columbus City Schools under the prime contract, and placed such funds in lescrow as provided in O.R C. § 153.63 (the “Escrowed Funds”). 15. Pursuant toO R.C. § 1311 28, the Escrowed Funds arc to be released by columbus City Schools at the times, in the amounts, and to the persons ordered by a court of Lompetent jurisdiction, or by agreement of Keen & Cross and Higley. The Escrowed Funds arc kurrently under the control and custody of the-Columbus City Schools. _ . . eee 16. Upon information and belief, pursuant to a contract between Columbus City [ehoots and Higicy on the above-referenced Project, Columbus City Schools 1s holding the jéscrowed Funds as payment for work which Higlcy contracted to perform, including payment for work performed by Keen & Cross as subcontractor as referenced above. 17. As referenced hercin, a dispute has arisen conceming the rights of the parties to this action to the funds being held by the Columbus City Schools for work on the ahove- referenced Projcct. 18. Upon information and belicf, all partics to the action may claim some or all of the funds being held by the Columbus City Schools. All partres who have or may claim an interest | n the disposition of such funds have been named as partics herein.D9171 - U DUNUATY, Mass & TURE, ALEGAL 'OOFESSICNAL “ASSOCIATION sD MOHTH YAN SIBECT ‘Sunre reo Gav1on OO 45402 1730, (san 273-0003 HO 49. For the reasons sct forth above, pursuant to O.R.C. § 2721.01, et seq., Keen & Cross 1s entitled to a judgment from this Court declaring the rights of the parties to the funds being held by the Columbus City Schools To the extent the Court finds that some or all of such funds are owed to Keen & Cross, Keen & Cross is further entitled to an order pursuant to O.R.C. 's 2721.09 enforcing such declaratory judgment and directing Columbus City Schools to pay such jsums to Keen & Cross, FOURTH CLAIM FOR RELIEF 20. Plaintiff incorporates the allegations set forth in Paragraphs | through 19, above, | ‘as if fully rewritten herein. | 21. ‘Hagley and Defendant Safeco Insurance Co. of America (“Safeco”) executed a | jbond issucd by Safeco for the benefit, inter alia, of Higley’s subcontractors on the above- referenced Project to pay all lawful claims of such subcontractors for labor performed, or | and Columbus City Schools (the “Bond™). A true and accurate copy of such Bond is attached wereta as Exhibit D and fully mcorporated herein. | 22, Keen & Cross has complicd with all the terms and conditions of the Bond and lunder the circumstances of this casc as referenced above, Higley owcs Keen & Cross the sum of $1,000,.891.80, plus interest, which amounts are unpaid by Higley and remain due and owing to Keen & Cross. 23 By certified mailed dated Apri} 20, 2009, Keen & Cross served a copy of the Claim Affidavit upon Plainuff and Safeco, which letter and Claim Affidavit constitute the “Statement of Amount Due” as referenced in O R.C. § 153 56(A) (the “Surety Notice”). A true Imatenals furnished, in carrying forward, performing, or completing the contract between Higley _D9171 - qa1 DUNEEVEL MAHAN 4 IT RRY ALEGAL PRITSSIONAL ASSOCIAHON | ONORH MAN SIRERT ‘Sulsk 1900 DAYTON OHIO 45402- 738 #807) 223 6003 and accurate copy of such Surety Notice is attached hereto as Exhibit E and fully incorporated herein. 24. In accordance with O.R C § 153.56(A), within ninety (90) days from the date on which Keen & Cross last provided materials and/or labor to Higley on the above-referenced Project, Keen & Cross, through the Surety Notice, duly notified Safeco that Higicy failed and incglected to make the payments duc to Keen & Cross. The Surety Notice complied with all the requirements of O R.C. § 153.56 for the perfection of the nght of action under the Bond. 25. More than sixty (60) days have passed since the furnishing of the Surety Notice lhefore this claim was filed with this Court. This claim was brought within one (1) year from the date of acceptance of the public project for which the Bond was issued. 26. — All of Keen & Cross’ services and materials for the above-referenced Project were furnished within Franklin County, Ohio. --* 27° — All legal requtrements and conditions precedent-have-been met or-have occurred = _ fe perfect Keen & Cross’ right of action against Safeco on the Bond. 28. Safeco is properly a party to this matter so that this Court may make a binding Hetermination upon the parties hereto to order Safeco to pay the bond amounts to Keen & Cross hs provided in O.R C. §$§ 2307.06 through .07 29. Keen & Cross has complicd with all terms and conditions of the Bond and is | nerofore owed on such Bond the sum of $1,000,891.80, plus interest. WHEREFORE, Plaintiff demands judgment: 1. On its First Claim for Relief against Defendant Albert M Higley Co. in the sum of $3,000,891.80;D9171 - uaz 2. In the alternative, on its Second Claim for Relief against Defendant Higley in the em of $1,000,891.80; 3. On its Third Claim for Relief in the form of a declaratory judgment determining that Keen & Cross 1s entitled to $1,000,891.80 of the funds held in cscrow by the Columbus City {Schools and an order by this Court directing Columbus City Schools to pay such sums to Keen & [Cross, plus interest; 4. On its Fourth Claim for Relief against Defendants Higley and Safeco, jointly and poverally, in the sum of $1,000,891.80, and in the form of an order directing Safeco to pay the [sum of $1,000,891.80 on its Bond on the Project. Keen & Cross further prays for interest on the above sumis, reasonable attorneys’ fees, the ‘costs of the within action and any other and further relief to which it may be entitled. | Respectfully submitted, | eo we. |. - ee. ee... -DUNLEVEY, MAHAN & FURRY _. _. By. FDnaf? flim Coorg) ped. David M. Rickert (0010483) 110 North Main Strect, Suite 1000 Dayton, Ohio 45402 Phone: 937-223-6003 Fax. 937-223-8550 Email: dmr@dmfdayton.com ATTORNEY FOR PLAINTIFF JURY DEMAND Pursuant to Rulc 38(B) of the Ohio Rules of Civil Procedure, Plaintiff demands a trial by hury of any and all issues triable to a jury in this matter. 7 ? i, (oorgu) David M. Rickert (0010483) DUMIVEY MAAN & [URRY ALEGAT PAOTESSIONAL ‘ASSOCATION 1 ONOTH MAN STTEET 7 ‘SUITE 1000 DAYTON O1L0 45402-1738 (asm 223.0005D9171.- U43 WS 5 f : ‘CO The Albert M. Higley Co. CONSTRUCTION MANAGERS 2 8 ee Job No. 081398 Sub-JobNo.. 000 ‘ Galvmous, One 42218, ContractNo: —30850-1 TEL 614-227-5750 Contact Ed Keen FAX 614-227-5751 Phone: 1-513-674-1700 FAX: 1-513-674-2230 SUBCONTRACT AGREEMENT THIS AGREEMENT made as of the 15th day of February in the year of 2008_ BETWEEN the Contractor: and the Subcontractor: — -(Nameand Address], 8 | The Project is: (Name and Address) The Owner is: (Name and Address) The Architect is: (Name and Address) THE ALBERT M., HIGLEY CO. 2926 Chester Avenue Cleveland, Ohio 44114-4414 Keen & Cross Environmental Services, Inc. -- —504 Northland-Blvd. Cincinnati, Ohio 45240 Crestview Alternative Elementary 251 E. Weber Road Columbus, OH 43202 Columbus City Schools 899 East 17" Street Columbus, OH 43211 Feinknopf, Macioce, Shappa Architects, Inc 995 W. 3™ Avenue Columbus, OH 43212 The Contractor and Subcontractor in consideration of the terms, covenants and conditions herein contained agree as set forth below:D9171-- U44 NS Mle VA ARTICLE 1. SI ;COPE 0 Ld 12 13 22 23 The Subcontractor agrees to furnish all supervision, labor, materials, tools, scaffold and equipment necessary to perform all work as set forth in Section 1.2 for the amount set forth in Section 1.3, for the construction of the Project for the Contractor and the Owner in strict and complete accordance with the Project plans, specifications, addenda and other documents identified in Schedule A attached hereto, and all subsequently and duly issued modifications thereto by the Architect and/or Contractor. The work to be performed by the Subcontractor including all supervision, labor, materials, tools, scaffolds and equipment, (hereinafter called the WORK), is as follows, (in general caption only), and as further identified and described in Schedule B attached hereto: Hazardous Material Abatement & Selective Demolition In consideration whereof, the Contractor agrees to pay the Subcontractor for the full and faithful performance of the Work the sum of One Million One Hundred Twei sand Eight Hund: Five Dollars ($1,120,875 00) (hereinafter “the Subcontract Sum"), The Subcontract Sum includes all Federal, State, County, Municipal and other taxes imposed by law and based upon labor, services, materials, equipment or other items required, performed, furnished or used for or in connection with the Work, including but not limited to sales, use and personal property taxes payable by or levied or assessed. against the Owner, Contractor or Subcontractor. Where the law requires any such taxes to be stated and charged separately, the total price of all items included in the Work plus the amount of such taxes shall not exceed the Subcontract Sum. The Plans, Specifications, General Conditions, Addenda and General Contract, including this Agreement, are available for examination by the Subcontractor at all reasonable times at the office of Contractor, and are hereinafter sometimes referred to as the Contract Documents. The Subcontractor represents and agrees that it has carefully examined and understands this Agreement and the other Contract Documents, has investigated the nature, locality and site of the Work and the conditions and difficulties under which it is to be performed, and that it enters into this Agreement on the basis of its own examination, investigation and evaluation of all such matters and not in reliance upon any oral or written opinions or representations of Contractor, or of the Owner, or of any of their respective officers, agents, servants, or employees. With respect to the Work to be performed and furnished by the Subcontractor hereunder, the Subcontractor agrees to be bound to Contractor by cach and all of the terms and provisions of the General Contract and the other Contract Documents, and to assume towards Contractor all of the duties, obligations and responsibilities that Contractor by those Contract Documents assumes towards the Owner, and the Subcontractor agrees further that Contractor shall have the same rights and remedies against the Subcontractor as the Owner under the terms and provisions of the General Contract and other Contract Documents has against Contractor with the same force and effect as though every such duty, obligation, responsibility, right or remedy were fully set forth herein. The terms and provisions of this Agreement with respect to the Work to be performed and furnished by the Subcontractor hereunder are intended to be and shall be in addition to and not in substitution for any of the terms and provisions of the General Contract and the other Contract Documents. This Agreement, the provisions of the General Contract and other Contract Documents are intended to supplement and complement each other and shall, where possible, be thus interpreted. If, however, any provisions of this Agreement irreconcilably conflicts with a provision of the General Contract and the other Contract Documents, the provision imposing the greater duty or obligation on the Subcontractor shall govern.D9171 .- U45 A Le ARTICLE 3. CONTRACT TIME. 3.1 3.2 3.3 3.4 The Subcontractor shall commence the Work when notified to do so by Contractor and shall diligently and continuously prosecute and complete the Work and coordinate the Work with the other work being performed on the Project, in accordance with the Project Schedule, al] Milestone Dates (as identified in Article 6) and any other scheduling requirements listed in this Agreement, so as not to delay the commencement, progress or completion of the whole or any part of the Work or other work on the Project (hereinafter “Subcontract Time”). Subcontractor shall prepare and submit a detailed schedule identifying in ample detail, as required by Contractor, the activities which comprise Subcontractor’s schedule of Work required under this Agrcement. Subcontractor shall identify all manpower requirements required to support the activity durations of Subcontractor’s Work and other information as requested by Contractor. The Contractor shall have the Tight, but not the obligation, to coordinate the Subcontractor’s schedule with the schedules of the Contractor and the other Subcontractors (hereinafter “Project Schedule”). Subcontractor agrees to abide by and perform its obligations in accordance with the Project Schedule. The Contractor reserves the right to modify any portion of the Project Schedule with respect to the sequence or duration of the Sabcontractor’s Work, the Project or any portion thereof. The Subcontractor shall use its best skill and judgment to cause the Work to be performed in a prompt and expeditious manner and m accordance with the Project Schedule, the Milestone Dates or any amendments thereto. The Subcontractor acknowledges and agrees that ag the Project progresses, the Contractor may change and/or modify the Project Schedule due to factors inherent in the Work to be performed for the Project. As a result, Subcontractor’s Work may be resequenced and/or rescheduled by the Contractor in order to coordinate the work of the Subcontractor with that of other subcontractors or the Owner's other contractors, ifany, and to accommodate the needs and requirements of the Owner or the Project. ARTICLE 4. PROGRESS PAYMENTS, _ | - ee . 41 4.2 Prior to submittal of the first Application for Payment, Subcontractor shall submit to Contractor for its approval, a schedule of values of all portions of the Work, divided and segregated so as to facilitate Progress Payments under this Agreement (a “Schedule of Values”). To the fullest practical extent, the Schedule of Values shall be based on the Subcontract Amount as supported by subcontracts and purchase orders. Subcontractor shall also provide Contractor with all supporting data reasonably requested by Contractor to substantiate the accuracy of the Schedule of Values. Unless otherwise agreed by Contractor, each Change Order which increases or decreases the Subcontract Amounts shall be accounted for as a separate line on the Schedule of Values. Each Application for Payment shall report the status of each Change Order in addition to the original Schedule of Values. The Schedule of Values may only be amended by means of a Change Order signed by Contractor. On or before the 25" day of each month during the performance of the Work, Subcontractor shall submit to Contractor a written request for payment (an “Application for Payment”). Such Application for Payment shall be in a form approved by Contractor, which shall set forth the Subcontract Amount incurred to the date of such Application for Payment, allocated among the categories set forth in the Schedule of Values and separately stating that portion of the Subcontract Amount that constitutes materials, supplies, systems, appliances, equipment, fixtures and other items required for or in connection with the construction, furnishing, or equipping of, or for inclusion in, the Project and all sales and ase taxes payable with respect to such items. To the extent not previously furnished, each Application for Payment shall be accompanied by such supporting evidence required by Contractor to verify the Amount included in each Application for Payment and by original executed partial waivers of all Liens for all Work performed and all services and materials provided with respect to the Project, to the extent Contractor has made payment to Subcontractor for such items pursuant to all prior Applications for Payment. Each Application for Payment shall contain an allocation of the percentage of completion of cach portion of Work as of the end of the period covered by the Application for Payment. Subject to other provisions of the Contract documents, the amount of each progress payment shall be computed as follows:D9171 - U46 mh L 43 44 J Take that portion of the Subcontract Amount properly allocable to completed Work as determined by muluplying the percentage completion of cach portion of the Work by the share of the Subcontract Amount allocated to that portion of the Work in the Schedule of Values, less retainage of Eight percent (8%). 2 Add that portion of the Subcontract Amount properly allocable to materials and equipment delivered and suitably stored at the Site, or stored off site (if provided by the General Contract, for subsequent incorporation in the completed Work), less retuinage of Eight percent (8%). 3 Subtract the aggregate of previous payments made by Contractor. 4 Subtract amounts for which Contractor, Owner, or Architect has withheld or nullified in a previous application for payment. 5 Add, upon Substantial Completion of work, a sum sufficient to increase the total payments to One Hundred percent (100%) of the ful] amount of the Subcontract Amount less amounts withheld for incomplete Work, unsettled liens and claims or disputes. Within ten (10) days of receipt of payment for the same from Owner under the General Contract, Contractor shall make a progress payment to Subcontractor equal to the amount actually received from Owner less any amounts withheld pursuant to this Agreement or any other Agreement between Contractor and Subcontractor. It is expressly agreed by and between Contractor and Subcontractor that the receipt by Contractor of payment from the Owner which includes the requested amount is an express condition precedent to Contractor's obligation to pay Subcontractor. If Contractor has provided payment and/or performance bond(s) for the Project, the obligation of the surety under said bond(s) to make any payment to the Subcontractor (whether an interim or final payment) or any other claimant is subject to an express condition precedent that Contractor (or its surety) receive payment therefor by the Owner. No payment, (final or otherwise), made under or in connection with this Agreement shall be conclusive evidence of the Subcontractors performance of its Work pursuant to this Agreement, in whole or in part, and no such payment shall be construed to be an acceptance of defective, faulty or improper work or materials nor shall” payment release the Subcontractor from any of its obligations under this Agreement. Regardless of the terms of payment provided for herein, the Contractor shall not be required to make any payments that would leave a balance due to the Subcontractor insufficient to cover the retained percentage plus an amount sufficient to satisfy all obligations of the Subcontractor for labor, materials, equipment, services, etc., furnished or to be furnished by the Subcontractor hereunder. ARTICLE 5. FINAL PAYMENT. 5.1 The final payment shall be due within forty-five (45) days after the completion and acceptance of the Work by the Contractor, Architect, and the Owner, provided first, however, that (i) Contractor shall have received final payment thereof from the Owner, (ii) the Subcontractor shall have furnished evidence satisfactory to Contractor that there arc no claims, obligations or licns outstanding or unsatisfied for labor, services, materials, equipment, taxes or other items performed, furnished or incurred for or in connection with the Work, (iii) delivery of all guaranties, warranties, bonds, instruction manuals, performance charts, diagrams, as-built drawings and similar items required of Subcontractor or its suppliers or subcontractors and (iv) the Subcontractor shall have executed and delivered in a form satisfactory to Contractor a General Release Tunning to and in favor of Contractor and the Owner. The satisfaction of all aforesaid requirements is an express condition precedent to Contractor's obligation to make final payment to Subcontractor. ARTICLE 6. PROGRESS AND COMPLETION. 6.1 The Subcontractor acknowledges that performance of the Work and Substantial Completion of the Project within the Subcontract Time is an essential condition of this Agreement. Following commencement, the Subcontractor shall carry the Work forward with competent, adequate, properly skilled forces to maintainD9171 ~ U47 ‘Wo 1. 6.2 63 6.4 progress in accordance with the Project Schedule. The Work shall not be suspended or shut down, but shall progress continuously and expeditiously, unless otherwise approved by the Contractor. The Subcontractor agrees to prosecute and complete the Work in accordance with the Milestone Dates set forth in the Contract Documents or as otherwise set forth in Schedule D, attached hereto. To the extent provided in the General Contract, should the progress, performance or completion of any portion or portions of or the whole of the Work contemplated in the Contract be delayed as the result of: J Any act or neglect of Owner or any of its agents, affiliates, or representatives; 2 Any acts or omissions of any separate contractor engaged by Owner to work on the Project; 3 Any Change Order requested by the Owner if the Change Order included additional time; 4 Labor strikes, work slowdowns or stoppages, or other actions intended to adversely affect the transportation of matenals or equipment or the progress of the Work, which is not the result of strikes or work stoppages prohibited by Article 18; 5 Tornado, fire, hurricane, blizzard, earthquake, flood, other acts of God, or any other natural event not within the control of the Subcontractor that prevents the progress of the Work; 6 Delay authorized by the Owner pending resolution of a dispute; 7 Acts of the public enemy, acts of the State, Federal or local Government in its sovereign capacity; 8 Any other cause which the Contractor or the Owner determines may justify a delay; - 9 -— - Removal of. asbestos and toxic or hazardous substances from the Site that is not within the Scope of the Work, 10 Delays for a reasonable period incurred to investigate any claim by the Subcontractor for concealed conditions; Al The occurrence of unusually severe weather-related delays in excess of forty (40) work days per twelve (12)}-month period; 12 Order of any court of competent jurisdiction enjoining the performance of the Work that is not proximately caused by the actions or inactions of the Subcontractor; or 13 Delays proximately caused solely by the actions or inactions of the Contractor and not otherwise caused, in whole or in part, by any event listed in Sections 6.3.1 through 6.3.13 above; the time of completion of the portion or portions of the Work directly affected by such delay, and the Subcontract Time, shall, upon request of the Subcontractor as provided in Section 6.4, be extended by a reasonable period, in no event to exceed the time lost thereby. The Subcontractor and the Contractor agrec that the existence and duration of any delay in the progress, performance or completion of any portion or portions of the whole of the Work shall be exclusively established through the Project Schedule as affecting or impacting the Critical Path of the Contractor’s performance. Delays which do not affect or impact the Critical Path of Contractor's performance as reflected on the Project Schedule shall not be eligible for an extension to the Subcontract Time. Should the Subcontractor reasonably believe, in accordance with Section 6.3, that it is entitled to an extension of time for completion of any portiun or portions of the Work, the Subcontractor shall, within forty-eight (48) hours after the occurrence of the cause of the delay, notify the Contractor, in writing, of such belief, setting forth (a) the cause for the delay, (b) a description of the portion or portions of WorkD9171 - U48 hy ao affected thereby, (c) an estimate of the probable effect of such delay on the progress and completion of the Work, and (d) all details pertinent thereto. A subsequent written application for the specific number of days of extension of time requested shalt be made by the Subcontractor to the Contractor within seven (7) days after the effects of the delay can be ascertained through use of the Project Schedule. Any change in the Subcontract Time resulting from such claim(s) shall be authorized by a Change Order. 65 It is a condition precedent to the consideration or prosecution of any claim for an extension of time that the foregoing provisions regarding the timing of notice be strictly adhered to in cach and every instance and, if the Subcontractor fails to comply, the claim shall be deemed to have been waived. 6.6 To the extent any change in the Work would significantly affect the time and progress of the Work in the opinion of the Subcontractor, the Subcontractor shall make any request for time extension no later than when the related Change Order request is first submitted to the Contractor. 67 The Subcontractor agrees that it shall have no claim for an increase in the Subcontract Amount for delay, disruption, interference, acceleration or hindrance caused, in whole or in part, by reason of the events set forth in Sections 6.3.4 through 6.3.7, and 6.3.9 through 6.3.12. The Subcontractor agrees to accept, as its sole and exclusive remedy with respect to such events, an extension of contract time unless the Contractor elects to accelerate Subcontractor’s performance hereunder in lieu of providing said extension of time. If Contractor elects to accelerate Subcontractor’s performance, Contractor agrees to adjust the Subcontract Amount for the premium portion of any, wages and associated benefits incurred by the Subcontractor attributable to the acceleration in performance. 6.8 Tt is recognized and agreed by the Subcontractor that no claim for an increase in the Subcontract Tune for either acceleration, delay disruption, interference or hindrance will be allowed based on changes in the Project Schedule which are of the type ordinarily experienced in projects of simular size and complexity or pursuant to Sections 3.3 and 3.4. cote e 6.9 ~ -If-the Subcontractor is delayed, accelerated, disrupted, interfered or hindered on account of or resulting from the conditions set forth in Sections 6.3.1 through 6.3.3 or 6.3.8, the Subcontractor agrees that it shall have no claim nor right to any cost reimbursement, compensation or damages from the Contractor except to the extent that the Contractor is entitled to and actually receives a corresponding cost reimbursement, compensation or damages from the Owner pursuant to the General Contract for said delays, acceleration, disruption, interference or hindrance. The Subcontractor agrees that any claim or right to any cost reimbursement, compensation or damages for the above shall be governed by the terms and conditions of Article 12 and the Subcontractor agrees to accept, as its sole and exclusive remedy, the amount, if any, actually received by the Contractor from the Owner, less the costs and expenses set forth in Article 12. 6.10 Ifthe Subcontractor is delayed on account of or resulting from the conditions set forth in Section 6.3.13, the Subcontractor agrees that its claim(s) for an increase in the Subcontract Amount shall be lumited to the actual cost incurred by the Subcontractor for maintaining an extended presence on the Site for the period of delay, any increase in the cost of labor or materials and any Contractor approved demobilization and remobilization costs. The Subcontractor agrees that it shall have no claim(s) and waives recoverability for same against the Contractor for consequential, special, incidental or indirect loss, cost or expense on account of or resulting from the conditions set forth in Section 6.3.13. 6.11 | The Subcontractor shalf fumish such manpower, materials, facilities and equipment and shall work such hours, including night shifts and premium time operations, as may be necessary to insure the prosecution and completion of the Work within the Subcontract Time. If Work actually in place falls behind the Project Schedule for reasons that are the responsibility of the Subcontractor, and it becomes apparent that the Work will not be completed within the Subcontract Time, as adjusted, the Subcontractor agrees that it will, as necessary, accelerate its effort at no additional cost to the Contractor to improve its progress. Such acceleration shall include as necessary some or all of the following actions: ak Increase manpower and crafts;D9171- 'U49 Mo ta 6.12 6.13 6.14 2 Increase the number of working hours per shift, shifts per working day, working days per week, or the amount of equipment, or any combination of the foregoing; and/or 3 Reschedule activities. The Contractor may also require the Subcontractor to submit a revised schedule and description of corrective actions it intends to take to assure completion of Work within the Subcontract Time. If the Contractor reasonably finds the proposed plan not acceptable, it may require the Subcontractor to submit revisions. Failure of the Subcontractor to substantially comply with the requirements of Section 6.11 shall be considered grounds for a determination by the Contractor that the Subcontractor is failing to prosecute the Work with such diligence as will ensure its completion within the time specified. The Contractor may, at the Contractor’s convenience and without cause, order the Subcontractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the Contractor may determine. If the Contractor suspends, delays or interrupts the Work for the Contractor’s convenience, the Contractor shall pay to the Subcontractor the actual direct cost of such suspension, delay, or mterruption, taking into account all relevant facts, and the Subcontract Time shall be increased by the period of such suspension, delay, or interruption. No adjustment shall be made to the extent: ad That performance is, was or would have been so suspended, delayed or interrupted by another cause for which Subcontractor is responsible; or 2 That an equitable adjustment is made under another provision of this Agreement. ARTICLE 7. CONSIGNING, - - 71 - The Subcontractor in making or ordering shipments shall not consign or have consigned materials, equipment or any other items in the name of Contractor. Contractor is under no obligation to make payment for charges on shipments made by or to the Subcontractor but may, at its option, pay such charges, in which case the Subcontractor shall reimburse Contractor for the amount of such payments plus a service charge of twenty-five percent (25%) of the amount so paid. ARTICLE 8. SHOP DRAWINGS. 82 8.3 Notwithstanding the dimensions given on the Plans, Specifications and other Contract Documents, it shall be the obligation and responsibility of the Subcontractor to take such measurements as will insure the proper matching and fitting of the Work covered by this Agreement with contiguous work, The Subcontractor shall prepare and submit to Contractor such shop drawings as maybe necessary or required by the Contract Documents to describe completely the details and construction of the Work. Approval of such shop drawings by Contractor and/or the Architect shall not relieve the Subcontractor of its obligation to perform the Work in strict accordance with the Plans, Specifications, the Additional Provisions hereof and other Contract Documents, nor of its responsibility for the proper matching and fitting of the Work with contiguous work. The Subcontractor shall submit to the Contractor, with sufficient promptness and in such sequence as to cause no delay in the progress of the Work or the Work of the Contractor or any separate subcontractor, all Shop Drawings, Product Data and Samples required by the Contract Documents. The Subcontractor shall indemnify the Contractor from all loss, cost and expense (including all attorney's fees and expenses) incurred by the Contractor that may arise from or relate to any claim or allegation that the Subcontractor’s submission of Shop Drawings, Product Data and Samples affected the progress of the Work or the Work of the Contractor or any separate subcontractor.D9171 - U50 \ tL. 84 85 8.6 The Subcontractor’s submission of Shop Drawings to the Contractor shall constitute the Subcontractor’s representation that the Subcontractor has reviewed the submission for accuracy, completeness, and compliance with all Contract Documents. The Subcontractor shall not be relieved of responsibility for any deviation from the requirements of the Contract Documents by the Contractor's, the Architect's or the Owner's review of Shop Drawings, Product Data or Samples unless the Subcontractor has specifically informed the Contractor or the Owner in writing of such deviation at the time of submission and the Contractor or Owner has given written approval to the specific deviation. The Subcontractor shall not be relieved from responsibility for errors or omissions in the Shop Drawings, Product Data or Samples, including, without limitation, any failure to comply with the Contract Documents, by the Contractor's, the Architect's or the Owner’s review thereof. The Subcontractor shall make any corrections required by the Owner and shall resubmit the required number of corrected copies of Shop Drawings or new Samples. Resubmittal of Shop Drawings necessitated by required corrections shall not be a cause for extension of Subcontract Time. The Subcontractor shall direct specific attention in writing or on resubmitted Shop Drawings, Product Data or Samples, to revisions other than the corrections requested on previous submittals. ‘When professional certifications or calculations of performance criteria for materials, systems, designs or equipment is required by the Contract Documents, the Contractor shall be entitled to rely upon the accuracy and completeness of such calculations and certifications. The Subcontractor agrees to indemnify and hold harmless the Contractor from all loss, cost and expense (including attorneys fees and expenses) incurred due to any allegation that the certifications or calculations of performance criteria for materials, systems, designs or equipment is inadequate, in error or not in conformance with the Contract Documents. ARTICLE 9. SUITABILITY OF OTHERS WORK. 9.1 Should the proper and accurate performance of the Work hereunder depend upon the proper and accurate performance of other work not covered by this Agreement, the Subcontractor shall carefully examine such other work, determine whether it is in fit, ready and suitable condition for the proper and accurate performance of the Work hereunder, use all means necessary to discover any defects in such othér work, and before proceeding with the Work hereunder, report promptly any such improper conditions and defects to Contractor, in writing, and allow Contractor a reasonable time to have such improper conditions and defects remedied. Should Subcontractor fail to provide written notice to Contractor, as required herein, before proceeding or taking remedial action, Subcontractor shall assume the full and sole responsibility and liability for all cost, expense or damage incurred by Subcontractor for said installation or remedial action and/or incurred by Contractor in correcting said defect in the Work (including replacement of Subcontractor's work or material) and Subcontractor releases Contractor from all liability and agrees to indemnify Contractor from all costs, expenses or damages, (including attorney's fees and expenses), incurred thereby. ARTICLE 10. PLANS. 10.1 10.2 The Work hereunder is to be Performed and furnished under the direction and to the satisfaction of the Owner, the Architect and Contractor. The decision of the Owner or the Architect as to the true construction, meaning and intent of the Plans and Specifications shall be final and binding upon the Subcontractor. Contractor will furnish to the Subcontractor such additional information and plans as may be prepared by the Architect to further describe the Work to be performed and furnished by the Subcontractor. Subcontractor shall conform and abide by the same. The Subcontractor shal] not make any changes, additions and/or omissions in the Work except upon written order of Contractor as provided in Article 11 hereof. The Subcontractor shall maintain at the Site or at such other locations as it may identify to Contractor from time to time, for its use and that of the Contractor, one copy of all Drawings, Specifications, Addenda, reviewed Shop Drawings, Change Orders and other Modifications, in good order and marked to record all changes made during construction, Reviewed Shop Drawings, Product Data, Samples, Drawings, etc.,D9171 -'U51 me A marked to record changes between as built conditions and design conditions shall be delivered to the Contractor upon completion of the Work. 10.3. At completion of the Work and before final certificate of completion is issued, the Subcontractor shall turn over to the Contractor, all sets of Drawings which were stamped and approved by the Building Department, and all permits or certificates issued for the Work. 10.4 The parties hereby agree that Contractor shall have the irrevocable, nonexclusive right to utilize and/or copy any designs, Drawings, Specifications or Contract Documents, coordination and other documents prepared by Subcontractor for the Project in the event Contractor completes the Work with another subcontractor upon the material and continuing default of the Subcontractor after written notice thereof and termination by Contractor in accordance with this Agreement, expands the Project, corrects any deficiencies, or makes any renovations or repairs to the Project. The Contractor agrees that it shall remove all identification legends and symbols including all seals, stamps and other items which identify Subcontractor as the author of the Drawings and Specifications. The Contractor shall neither hold out nor attribute any altered, modified or revised Drawings and Specifications to be the work product of Subcontractor, Any alteration, modification or revision to the Drawings and Specifications will be performed by architects and/or engineers suitably licensed who will be deemed architects or engineers of record for all work performed with the altered Drawings and Specifications. The Subcontractor shall have no responsibility for the Contractor's use of designs, Drawings, Specifications, or other Contract Documents as permitted herein The Contractor acknowledges the Subcontractor Construction Documents as instruments of professional service. Nevertheless, the Contractor shall have a nonexclusive irrevocable license as provided herein in all documents and copyrightable works prepared under or pursuant to the Subcontract. ARTICLE 11. CHANGES. 11.1 Contractor reserves the right, from time to time, whether the Work, or any part thereof, shall or shall not — -bave.been completed, to make changes, additions and/or omissions in the Work as it may deem necessary, upon written order to the Subcontractor. The value of the work to be changed, added or omitted shall be ~ stated in said written order and shall be added to or deducted from the Subcontract Amount. 11.2 The value of the work to be changed, added or omitted shall be determined by the lump sum or unit prices, if any, stipulated herein for such work If no such prices are stipulated, such value shall be determined by whichever of the following methods or combination thereof Contractor may elect: al By adding or deducting a lump sum or an amount determined by the unit prices listed in Schedule C attached hereto, or as may be otherwise agreed upon between the parties hereto. 2 By adding (1) the actual net cost to the Subcontractor of labor in accordance with the established rates, including required union benefits and payroll taxes and insurance, (2) the actual cost to the Subcontractor of materials and equipment and such other direct costs as may be approved by Contractor, (3) an allowance of 10% for overhead on items(1) and (2) above, and (4) an allowance of 5% for profit on items (1), (2) and (3) above. 11.3. Should the parties hereto be unable to agree as to the value of the work to be changed, added or omitted, the Subcontractor shall proceed with the work promptly under the written order of Contractor, and the determination of the value of the work shall be subject to the provisions of Articles 12 or 30 herein. 11.4 In the case of omitted work, Contractor shall have the right to withhold from payments due or to become due to the Subcontractor an amount which, in Contractor's opinion, is equal to the value of such work until such time as the value thereof is determined by agreement of the Architect or the provisions of Articles 12 or 30 herein.4 ’ Lo D9171 - U52 mA : 11.5 All changes, additions or omissions in the Work ordered in writing by Contractor shall be deemed to be a part of the Work hereunder and shall be performed and furnished in strict accordance with all of the terms and provisions of this Agreement and the other Contract Documents, ARTICLE 12. EXTRAS, 12.1 12.2 If the Subcontractor makes a cluim for an increase to the Contract Sum, Subcontractor shall give Contractor written notice of same within five (5) days (or such shorter period of time as set forth in the Contract Documents) after the occurrence of the event giving rise to such claim. This notice shall be given by the Subcontractor and approval to proceed issued by the Contractor, in writing, before the Subcontractor proceeds to perform said extra work or incur said extra expense. Subcontractor agrees that said written notice and written approval to proceed are conditions precedent to Subcontractor's right to assert said claim against Contractor and Subcontractor waives any claim if Subcontractor fails to comply with the above provisions. The Subcontractor further agrees not to proceed with the performance of any extra work or incur said extra expense hereunder unless the same shall be fully agreed upon in writing by the Contractor prior to the performance of any such extra work or incur said extra expense. In the event that agreement cannot be reached as to the value of said extra work or extra expense, at the Contractor's direction, the Subcontractor shall proceed with said extra work or extra expense under protest and may seek remedy in accordance with the procedures as stated in this Agreement and the other Contract Documents. Notwithstanding the above, the Subcontractor agrees that it shall accept, as full and complete satisfaction of any and all claims against the Contractor for extras or extra expense, pursuant to this Agreement, the amount, if any, that the Contractor actually receives by settlement, negotiation, judgment or otherwise from the Owner for said extras or extra expense. The Subcontractor acknowledges and agrees that it has no claim or demand and will not seek recovery from the Contractor except to the extent of the recovery actually obtained by the Contractor from the Owner. The Contractor agrees to submit the Subcontractor's claim for extras or extra expense in accordance with the terms and conditions of the General Contract in the form and substance as presented by the Subcontractor to the Contractor. The Subcontractor agrees to provide the Contractor with all necessary assistance required by the Contractor to advance the Subcontractor’s claim for extras Or extra expense including, but not limitéd tO, éxpert advice and assistance: ~~ The Subcontractor agrees to promptly reimburse the Contractor, upon demand, for all cost and expense (including attommey’s fees and expenses) incurred by the Contractor in advancing the Subcontractor’s claims for extras or extra expense to the Owner. Should the Subcontractor fail to promptly reimburse the Contractor within fourteen (14) days from demand, the Subcontractor acknowledges that it has waived said claim for extras or extra expense and has fully and completely released the Contractor from any further responsibility to the Subcontractor unless the Contractor agrees in writing otherwise. ARTICLE 13. INSPECTION/REJECTION OF THE WORK. 13.1 14.1 The Subcontractor shall at all times provide sufficient, safe and proper facilities for the inspection of the Work by Contractor, the Architect, and their authorized representatives in the field, at shops, or at any other place where materials or equipment for the work are in the course of preparation, manufacture, treatment or storage, The Subcontractor shall, within twenty-four (24) hours after receiving written notice from Contractor to that effect, proceed to take down all portions of the Work and remove from the premises all materials, whether worked or unworked, which the Architect, Owner, or Contractor shall condemn as unsound, defective or improper or as in any way failing to conform to this Agreement or the Plans, Specifications or other Contract Documents, and the Subcontractor, at its own cost and expense, shall replace the same with proper and satisfact