Free Opening Brief in Support - District Court of Delaware - Delaware

Case due process rights in connection with the decision to tennate the Contract forof 24 Filed 10/25/2006 Page 1 cause. procedural 1:04-cv-00163-GMS Document 306-5
133.

Durki avers , upon information and belief; that the decision by the City and City

Council to tennate the Contract was solely an attempt by the City and URS to ilegally foist the

economic impact of the deficient modified design on Durki and/or its surety.
134.

The City' s termation of Durkin for default has been reported in newspapers and

become "common knowledge
without litation, to

with the public contractig communty, specifically, and

other public agencies and procurement offcials , private owners,

contractors , suppliers, subcontrctors and sureties; all of who Durki relies upon for its very

suval as a business.
135. ' In point of fact, Durld

fist leamed of the City' actions termatig the Contrct

froma"newspaper reporter.
136.

Prior to receivig the City' s notice oftennination, Durld was awaitig a response

to the findigs and report of Durki' s consultants that confed the design deficiencies in the
modified design, together with appropriate diection
by the Contract specifcations.
137.
from the

City, all as provided and prescribed

At all ties

pror to receiving the City' s

notice of default , Durki had fuy

conformed with and to the requiements of the Contract.
138.

At all ties relevant hereto, the City and City Council acted under the color of

state law.
139.

At all ties relevant hereto , URS acted as the agent of the City and under the

color of state law.
140.

All conditions preedent to the rights of Durki and the liabilties of the City, City

KOP:269634v3 3514-4

Case 1:04-cv-00163-GMS Document 306-5 Council ' and UR have been satisfied or'have occured.
141.

Filed 10/25/2006

Page 2 of 24

Subsequent to the CitY' s tennnation of the Cohtract, Dr. Richardson reviewed the

Januar 30, 2004 response from URS, visited the site, and examed additional docllents
relatig to the Project

conditions.
investigation and fidigs ,

142.

As a result of his fuer

Dr. Richardson published a

supplemental report to Federal dated March

2004 in which lie concluded the following:

That the design associated with utilzing the Zone IV materials.in the lowermost

porton of the interor embanent slope was not constrctable
that UR
faied to include an essential element of the design,

as designed in

namely proper

design meases for protective soil cover durg
the reservoir;

constrction and

durg filling of

That fue design associated With

utiing the Zone IV materials was deficient, in

that the soil layer comprised of the Zone IV materials would inevitably fail from
erosion, which would potentialy clog the outlet strctue
reseroir ftom

and

prevent' the'

drg;

Tht UR has approved and overseen the intalation of Zone IV cover soils that
do not meet Project specifications and are highly erosive with reect to surace
water;

That the URS specifications contaned in the Contract do not preclude the use of
highly erosive silty sand in the Zone IV materials , which should not be used on
exposed slopes;

That UR

ha not presented design calculations related to (1) the stabilty of the

KOP:269634v3 3514-

Case 1:04-cv-00163-GMS Document 306-5 Page of 24 pereter embanent system durg normalFiled failed lier conditions,3(2) the and 10/25/2006
stabilty of the liner

and protective soil layer durg drw down of the reservoir

(3) the liner system design and (4) the as- designed and modified underdrai
design, and fuher that the only calculations provided by UR were perfonned
ths year,

and not at the tie

the

design was incorporated into the Contract

documents;

ThtUR ha not presented any field dam to substtiate
margial liner system
and prot

the

adequay of the

tlve layer of soil cover;

Tht URhas represented that other reservoir facilties in the region use simlar
soil covers , but has not presented successful regional examples with both a servce .
history and physical propertes of the soil to aliow a techncal evaluation;

That UR has. failed to appreciate the ballas role of the protective cover soil in
protecting the geomembrane from floating and thereby exposing the subgrade to
full hydrostatic forces;

That UR has understated the potential for leakage though the mimal single
lier system;

That UR has misrepresented the quality of lier
project specifications ,

constrction

reflected in their

in that their level , of qualty contrl for liner constrction

would not meet miimum standards for muncipaIlandfllliers , and is an

industr mium, which would lead to a signficant number of lier defects;
UR has not substatiated the stabilty of the operational cover durng draw down
conditions and has presented no calculation to support their position, despite

KOP:269634v3 3514-04

Case 1:04-cv-00163-GMS request from Durkin on ths subject on September 10 , 4 of 24 Document 306-5 Filed 10/25/2006 Page 2003; receiving a wrtten
. URS ha misrepresented the placement of stone over Fabrifonn as a standard

practice, when in fact, accordig to the manufactuer ofFabriform, ths is the fist
time ths application has

been done , and fuher that it is being done against the

Fabriorm manufacturer

s recommendations;

UR ha misrepresented the stailty analysis of the upper slopes by overstatig
the accuracy of the single test data available on the Fabriormgeotextle interface
and failed to acknowledge t4at ths test ha never been performed before and

therefore no statistical basis for evaluatig the acuracy of the test exists;

UR misrepresented to Durki and the City that it had evaluated the stabilty of
the Fabriform system prior to biddig the Project
and

begig constrction

when in fact UR only evaluated the stabilty of the Fabriform to the geotextile in

2004; .

URS misrepresented that it had evaluated the stabilty

of the riprap stone on the

Fabrifonn and the interface shear strengt when in fact ths stbilty
never been performed; and

apalysis has

URS failed to convey critical consction requiements to Durki prior
commencing constrction, namely that equipment canot operate on the

Fabriform, and the upper soil berm must be placed before the riprap can be
placed.
143.

Dr. Richardson

fuer concluded that the curent URS design presents
constction, and to the City and its residents durg long

unecessar risks to Durki durg

KOP:269634v3 3514'(4

Case 1:04-cv-00163-GMS term operation of the reservoir.

Document 306-5

Filed 10/25/2006

Page 5 of 24

144.

Durki hereby incorporates by reference the foregoing and following paragraphs

as though fully set fort.
145.

By

vie of the above conduct, the City, Cit Council and URS violated and
civi rights

contiue to violate the procedural and substantive due process of Durki , as a result of which the
City, City Council and URS are liable to Durki for the violation of Durki' s
pursuant to 42 D.
C.

1983.

146.

By

vie of such conduct, the City, City Council and UR have caused and are
subcontractors, sureties and owners.
below,

contiuig to cause Durki to suer signficant daages and ireparable har to their reputation
and abilty to contract with suppliers ,

147. ' Durki is entitled to the relief set fort

includig an imedate declartion

that the City materially breached the Contract by refusing to pay Durki for its work, thereby

deprivig Durkin of propert without afordig it
148.

due process.

Afer the declaration of default , the City andUR theatened to confscate

Dur)c' s equipment.
149.

Afer the declaration of default, the City and UR did confscate and convert

materals provided to Durki by its suppliers and subcontrtors.
150.

The City and UR continue to withold

payment

for work performed by Durki

which work has been accepted by the City and UR.
151.

Durkin is entitled to imediate, injunctive relief to halt the continuig ilTeparable

har to its abilty to secure additional work and also to its reputation as a professional contractor.
KOP:269634v33514'(4

Case 1:04-cv-00163-GMSabove conduct, the City, City Council and UR have violated Document 306-5 Filed 10/25/2006 Page 6 of 24 152. By vire of their
and contiue to violate the procedural
and substative dUe ptocess

rights of Durki, as a result of

which the City, City Council and UR are liable' to Durki for violatig Durki' s civil rights,
pursuat to 42 U.
153.
C. Section 1983.

By vire of such conduct, the City, City Council and UR have caused and are

contiuig to cause Durki to sufer damages.
154.

Durld is entitled to and requests the relief set fort

below.

WHREFORE , Plaitiff request the followig relief:
The issuce of injunctive relief to halt the contiuing violations of Durki' s civi
rights includig the declaration that the City, City Council and UR failed to provide the

requied procedurl and substative due process to Durki;
An injunction requig the City, City Council and UR to cease all continuig

unawful conduct, includig the confscation of Durki' s propert, intererence with Durki'
curent and prospective

contracts with its suppliers, subcontrtors, surety and owners;

A declaration that the City' s action to termte the Contract for cause was

wrongf and that it is vacated
An award of compensatory damages against the City, City Council and URS, in an

amount in excess of applicable arbitration limits , plus interest, as permtted by law;

An award of puntive damages against UR, as permtted by law;
Counsel fees and costs , as permtted by law; and

Such other relief as the Cour may deem appropriate.

COUNT n - INTERFRENCE WITH EXISTING AN PROSPECTIV CONTRACTS

KOP:269634v3 3514-0

Case 1:04-cv-00163-GMS Document 306-5 and followig paragraphs as if set fort Page 7 of 24 155. Durkin hereby incorporates the foregoing Filed 10/25/2006
in full herein.
156.

The City, City Council and URS were at all times required to act in good faith and
legitiate

in accordace with law and the

governental interests of the City, and not on the basis

of personal motivatons or bias , or to conceal a defect in UR' modified design .
157.

As set fort

above, the

City, City Council and UR have intentionally interfered
with Federa and by falsely allegig

with Durld' s

existig surety contract

a default, and have

also interfered with prospective contracts which wouldbe. based upon Durkin s peronnance on
the Proj eet.
158.

As set fort

above,

the City, City Council and UR have intentionaly inteered

. with Durki' s existing contrts with Durld' s suppliers and subcontrtors.
159.

By vire of such conduct, the City, City Council and UR have caused and are .
to suffer daages.
below.

contiuig to cause Dur
160.

Durki is entitled to and requests the relief set fort

WHREFORE , Plaitiff requests the followig relief:
An award of compensatory daages agait the City, City Council and URS, in an
amount in excess of applicable arbitration lits ,

plus interest, as permtted by law;

An award of puntive damages agaist

UR in the event such Defendats are

found to have acted outside the scope of their authority, as permtted by law;

Counel fees and costs , as permtted by law;
An injunction requig the City, City Council and URS to cease all contiuing

unawful conduct; and

KOP:269634v33514-04

Case 1:04-cv-00163-GMS the CoUr may306-5 appropriate. Filed 10/25/2006 Such other relief as Document deem

Page 8 of 24

COUN m.. DEFAMTIONffRAE LIABLE
. 161.

Durki hereby incorporates the foregoing and following paragraphs as if set fort

in ful herein.

162.

As set fort

above,

the City, City Council and UR, without privilege to do so,

defamed Durki by falsely stating that Durki was in default.
163.

Upon inormation and belief, the City, City Council and UR , without privilege
Durkin improperly procured the

to do so , have falsely claimed tht have

report of Dr. Richardson, and

fuer stated to personS with the public contrtig
and ' the

communty that the report by Dr.

Richadson was false. (The fu details of the statements are not now lmown to Durki since

same has been concealed by UR
164.

City from Durkj J.

Upon inormation and belief, UR' prepared a "response" to Dr. Richardson

report that,included infonnation and statements tht

UR knew was false and improperly

obtaed.
165.

As set fort

above ,

the City, City Council and UR, without privilege to do so

, have falsely claied that Durki failed to meet the Project specifications.
166.

By

vie of such conduct, the City, City Council and UR have caused and are
below.

contiuig to cause imedate and ireparble damage to Durki' s reputation.
167.

Durki is entitled to and requests the relief set fort
request

WHREFORE, Plaiti

the followig relief:

An award of compensatory damages agaist the City, City Council and UR, in

amount in excess of applicable arbitrtion

liits, plus

interest, as permitted by law;

KOP:269634v3 3514-

Case 1:04-cv-00163-GMS damages agaist UR in the event such Defendants 9 of 24 Filed 10/25/2006 Page are .A award of puntive Document 306-5
found to have acted outside the scope of their authority, as permtted bylaw;

Counel fees and costs, as permitted by law;
An injunction requirig the City, City Council and URS to imediately retract all
false and misleadg statements and to cease all continuing unlawfu conduct; and

Such other relief as the Cour niay deem appropriate.

COUN IV - CONVRSION
168.
in ful herein.

Durki hereby incorporates the foregoing and (ollowig

paragraphs

as if set fort

169.

The City and UR' appropriation of the material purchased by Durki, but not.

paid for 'by the City, was wrongful and constitutes, a conversion of Durki' s propert..
170.

Durki is entitled to reimbursement of the fai market value of the materials

which were wrongfuly converted by the City and UR, as well as the retu

of those

material to

Durki.
WHREFORE, Plaitiff requestS'
the

followig relief:

An award of compensatory daages agaist the City, City Council and UR, in

amount in excess of applicable arbitration limts , plus interest, as pertted
An award of puntive damages agaist

by law;

UR in the event such Defendants are

found to have acted outside the scope of their authority, as permtted by law; Counsel fees and costs , as permtted by law;
The retu

of all materials wrongfly converted by the City and UR; and

Such other relief as the Cour may deem appropriate.

KOP:269634v3 3514-04

Case 1:04-cv-00163-GMS V COUN
171.
in ful herein.

FRUD

Document 306-5 Filed 10/25/2006 AND MISREPRESENTATION

Page 10 of 24
as if set forth

Durki hereby incorporates the foregoing and followig

paragraphs

172.

UR and the City have made the following false and frudulent
inducing and intendig

misrepresentations to Durki,

Durki to rely thereon, to their detrent:

That the Contrct plan and specifications fully disclosed all relevant inormation;

That UR and the City would proceed in good faith to review all design issues;
That UR and the City would review and evaluate Durki' s notice puruant to

2 offue Contrt reasonably, in accrdance with law and in good faith, and in accordance
with their legitiate goverental interests and without regard for persona biases or private
motivations.
173.

Durki reasonably relied on.the above fraudulent misrepresentations, to its

detrentas set fort above, only to be termnated for legitimately raising life safety issues and
design deficiencies relating to the constrctabilty of the Project work as requied
Contract.
WHREFORE,

by the

Plaitiff requests the

followig relief:
the

An award of compensatory damages agait

City, City Council and URS, in an

amount in excess of applicable aritration

limits ,

plus interest as permtted by law;

An award of puntive damages agaist UR in the event such Defendats are
found to have acted outside the scope of their authority, as permitted by law;

Counsel fees and cost,

as permitted

by law;
unawful

An injunction requig

UR and the City to cease all contiuig

KOP:269634v33514-0

Case 1:04-cv-00163-GMS conduct; and

Document 306-5

Filed 10/25/2006

Page 11 of 24

Such other relief as the Cour may deem appropriate.

COUNT VI - COMMON LAW CONSPIRACY
174.
in ful herein.

Durki hereby incorporates the foregoing and. following paragraphs as if set fort

175.

Upon inormation and belief, URS and the City have engaged in , and continue to

engage in a common law consiracy to violate Durki' s rights, commt the above intentional
torts , and cause the
176.

Plaiti to suffer daages.
such conduct, UR and the City have caused, and are contiuig

By vire of

to

cause Durki to sufer daages.
177.

Durki is entitled to and reques the relief set fort

below.

WHREFORE , Plaitiff requests the following relief:
An award of compensatory damages agaist the City, City Council and UR,

in

amount in excess of applicable arbitraton

lits ,

plus interest, as permitted by law;

An award of puntive daages

agai UR in the event such Defendants are

found to have acted outside the scope of their authority, as permtted by law;

Counel fees and costs , as permtted by law;
An injunction requirg

UR and the City to cease all continuig unawful

conduct; and
Such other relief as the Cour may deem appropriate. .

COUN vp - BREACH OF CONTRACT
178.

Durki incorporates by reference all prior pargraphs as though full set fort.

KOP:269634v3 3514'(4

Case 1:04-cv-00163-GMS Document 306-5 Filed 10/25/2006 179. The City has materially breached the Contract as follows:

Page 12 of 24

Termatig the Contract for default without followig the prescribed
procedures and without providing the requisite notice required by the Contract and by due

process oflaw;

Termatig the Contract for default without havig proper legal and factu basis therefor, and for reasons which the City either knew or had reason to know
wer not tre;
Failig to pay

for all work performed on time and in full, includig

the

balance of the Contrct

improperly

terated together with lost profits, unabsorbed
and

overhead and other costs;

Failg to pay for al diected

necsar additional and extra work to

address omissions and deficiencies in the Contract documents and the arbitrar
enforcement of specifications by UR, as more fully described in the precedig
paragraphs herein and

Wrongfly appropriatig
for same.
180.

and

convertg the proper of Durki without payment

The foregoing breaches of Contract by the City excuses Durki from all remaing

Contract obligations.

WHREFORE

Plaitiff requests the

followig relief:

An award of compensatory damages agast the City, City Council and URS, in an

amount in excess of applicable arbitration limts , plus interest, as permtted by law;

Counel fees and costs , as pertted

by

law; and

KOP:269634v3 3514"(4

Case 1:04-cv-00163-GMS the Cour may 306-5 appropriate. Filed 10/25/2006 Such other relief as Document deem

Page 13 of 24

POWELL, TRCHTMA, LOGAN,

LOMBARO , P.
By:

C.

ul A. Logan Delaware Supreme Cour il #3339 475 A11endae Road, Suite 200 Kig of Prusia, PA 19406 Telephone: 610- 354- 9700 Telefacsimle: 610-354- 9760 E-mail: mogan(gowelltrachtman. com
Attorneys for Plaitiff

JUY TRI DEMANED
Plaitiff hereby requests a trial by jur
on -all

issues so trable.

Logan
ardo, P.

By:

Paul A. Logan

KOP:269634v3 3514-

Case 1:04-cv-00163-GMS

Document 306-5

Filed 10/25/2006

Page 14 of 24

EXHIT A

": .":'' ' ,
partIQ
In :' ri , :Or

'",
Case 1:04-cv-00163-GMS which , this in$pecton reveae
dejectfvt.

, ', "

.,

-Filed 10/25/2006 Page 15 of 24

': , ' . :

!ncomplet
: re

take suoh meaul's as ar nec

at Document th rk is edl tely CONTCTR siary to complete ,such Wor or

81)11

306-5

y suhde

ftRa co.. (au t of CON 14. 14. It. 'tti Woft,ls siplftcantly dela)'ed arlfBNOINBB pletn ()fth BR ,hal, upon reptofCONTR' , 8O nfnnIl of ENOl. ' , ymenf an for final AppUc
NBBR/an "witho

nvR;

(ri

, Fin Appln
14;12. " Afer

rendti erlnatl
or

tho .Amet, make 11)'-

lor

mtnt:

t ()f tbe balnc d., for tbt
ted aU such eor-

on of 'tI.. Work funy .

R has compJ Mly coplete CONT OWN R for ""0J re , in: 8ti laled in die ' tbe satisfction ' of ' BNOINBBR and: deliv ' the rectns to

beh pletedand acte. Jftlremanlnabaiancto, 1085 tha
ti u
..oM '"

t, and It Qbns h ve '

Bo. :..Ul :op ltru enCofinsura:reulr' by'pah5. rothe evi
""0410,:
rt&ates or ' Inspedo,
makOd
UP"

acronc

with the Contract Docments all maintenanCe

aod

dI.vi ..
for that
and ed .hall

set Qf,

th IUre to the, pay
",or

rerd.

paymen , ' :: proided in parrah 6.:19) ard other d na payment f9ltoin th and . thete " TOR may ' mae, applicado ' (or : pplkitio for ure: for progrs payien It sl11l1i cc

ocmeDts '(as " porti by, .ub tI" catin' for .u

lIy

CONT '
Domel
any, tofinal'
.

c:te
R to

entofthe'bianc due

NOJNBJlR Y(it tho'
t ..hal be

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lJym nt shal be a*mpani

: , by. (0 '" docmentatin

Ied for in

th Cotr

88 p

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aiver of clims.

ins napaymon, exeepttht

incJudini but notJimited ' to tho

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Wtd

, bY

Ubpa~h5.4. (U)ConSetortheswey,

, ' wo.,
: CO

paYinent

fiod in' connection witb as' app :.. Wavers of Llns 1OR maY, f\mlhrceipis' orrel

(88
and(

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lar;
:serViCe,

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r the ,teno. o(
trac

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na Inaplon puu10
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wi th

at spe

othin

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ar fu

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reor

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. lijtlons und

the, Co

monts, , and

ftto

loij

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OW!BR

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an L!'

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i;.

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" " " 14. ii, ",oa

truc.tlon and final inspetion, and . : Work duri " : NEBR' ' review ' , the flOa Appliction " OJ Pament and Contraot ' as rered by , acpanyq documentatlQR rk has ben , th tb , Douments, ENOINBBR; is, 88 sfed under the' . . oth ,0bJlp and , Comp1e

Ib ba of BNGlNBBR' .--ofBNOI

AR.Ui

WORK AN

'

th

OWNBR M.,

n fufUlo Bt:O INEBR wil. . COntrct Douments have fina AP tion for days afer relpt of within ten ,

without cause" OWNBR may 'usperi Of no MOre . ' pe and wrtJna to than niney da)' by' noki in nd1cate in writing BNOINBBR Paymen ' BNOINBBR whi wnl' fix th da on Which. Work wlU bQ , ymet !And pros t the App"catton to' OWNBR for pay. roumo. th ' Wod on th da of wUI ' also slve written, u.tmnt In tho men\.,, At th .-e time. ENOINBER shill be allowed an

CONTR

th

retio,
ra ,
14. IS.

1$. 1., ,AI any time , and

the Wotk or an Poion

thfor a

CON'R

no to

, OWNBR and

subjec to the provlsiona of tum the BNQINBB wil .. Clrwlsc, , TRCfR. Indicating in wrltins , tho
mae the nessary

acptal

NTR.

tht the Work

ooN'R Is so Oxed. CONTR ahalthre" TI" contr Otl\,
" Contra

romendftnalpayment.lnwhlchca CONTRRshll' th ApUcation.
rralona and resubmit

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to

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WNBR M48

oran extension of dlr;tly attr ut'o to any IUch susponslon ved clm theror as provide In, makes an a

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Or

Artes II

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presentatio to OWNER of the Appca:thiry days afer tho , ronn tion al)d accpanylna docntalon, in s remmention and and iubsta and witb BNGINBBR' by ENOl. ' notiee of aCeptabilty" tho amnt' remmnd OWNBR to . NBER wDl becme due and wil be , pad by

aprie

15.2. Upon, the,
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Case 1:04-cv-00163-GMS
= ::t

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2. 9 is acUusted frm time to

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risdlction;
' authority of

Suppliers and others; aM
IS. 4A.

2. If coN' AcR: ' disregards th
14; '

(or ' reonable expenses diretry attributable to '

'BNOINEER'or
r.. ,

tin
nof be paid on .
or
r .

NTR#R()thmvi
y. after ' Stv

e viQ18te s In any, sub-

CONtR shall '
.ntlcpat
out of. or relU

Ccnt of IOS8

of

stanila way any provisiOs of tho Contract'DOcumots;
ER '
ted by Laws and

Prfits ,

r ' revenue

kJ arising' ,

from such, tenninatin:

CONTCTR (an
oiice and'

tho SU
Ma, Stop

any.) seven days
r " '

esuratlOns.

the' exte penni terinat , the servlc of
m thnlte and

Wri or

:' . i'

I'

.,:i

15-'. , If, through no act o fault'o fCONTAcrR' the ' I 8USPe ed for a peiiod of mc;:th ninety da b)" er:an order of court ther p'ubllc ihor" OWN ER O e)' could fail ac(on anY' Application f9 R for r ,ENGlNBB ItY, lIt to CO Nr"'CTR (whhoU BR, irty days . er ' is submi ed or: O teri. . Payment withl :trpas or convers n), tncol'rat iI' th e 'Yoat all any sum 'finall)" ER ' ' fall. for thirty day, s to pay and eqlpm nt stored at th ske or for wh chO : aI. ma)'. upn ba" paid CONT crR' but lch ~' 8tor: els where. : , determined , .. be, due then ven days ' 'Wtten notiCe , to OWNER an , BNOINB len . I .. eX finl h the Work ,as OWNER. may' deem and provided OWNER or i!NOINBBR do not remedy such entitl such, cas CONTRACR shall noS unpaid ; , suspenslo,: or failure . hin ch time, terminate tbe AgreIs fini lied; If any further ' payment unt!1 the ' WOJ , . ,. , ba'a ment a d , overt' OWNBR payaencon the iame tenns of ,1he Contract- rice exqeds, ' all cl lms. cbts":, , provided in, pa rapb..5. 4. . (nUeil , of terinating the sustained bY'OWNBR arisins Out of or losses and damases ' ement aM ' with9Ut ' preudice ' to any other nght , wil be pad : , ss' ori luch resulting from ;completing the dam- , , remedy, if ENOI BE.R has failed to act'on an Application , to CONTRCTR. If such claims. costs, losles and' is submitted, , or ' R shalt pay for, Payment within thirty: da)' afe ais excehuch unpaid batance,.CONT OWNER has , failed for.hirt ,days to pay CONTRAC'R (he difference to OWNER. ' Such chUms, costs. losses ' and any su m finally determ ned to be duc; (:ONTRACTR may dates Incurr, by OWNER will be reviewed by , upon seven day , written notice to OWNER and ENOINBBR as to their resonablenesi and:when so approved by vided that NEER, stop the Work unti ' payment o all uch amunts due ENGINEBR Incoq;rated In a Chnsc Order. p e pro isioris inciuding Interet there whon exercising any rights Of remedies under this paph CONTRACfR" I S :are not inte ed, to p ude- CO Is parrapb . of reired to 9btan the Iow st pri for OWNER shall not m making claim under Arcles 11 and 12 for TRACTR the Work performed. or Cotrct Thos or otherwise an Incse in Contract irey attrbutale, to CONTA for e pen8es or damae 10 t r- " hav is , 15.3. ' Wher, rmitted by TOR I stopping Work .. R1ini by OWNBR. th termination wil no atec any rits' or remedies of OWNER apnst CONTRAR ihen' , or which may thereer accroe: Any retontion or paymnt of

, CONTRACTR; exclude CONTRAC1R possei8ion' Of il,e W rk and ~f' tnl , cql, t appliances,. lite and' use t same, to th full xte

CONTAcrR'

nel' at '

us ..

CONTR

NTC'R'

II

to reive

ENQI. ,

coNTR"s

se

be

. money. duo

CONTR bY' OWNER wil ri 'releae CONTR frm libility.
. 15.4. Upon soven das '

exlstlng
' ARTICLE 16-ISP,Um RBSOwTON
, If

Pr

p8rph.,

writte noice to

CONTRAR

an BNGINEBR. OWNBR maYt withOut cause and withou
preudiCe to any other riht or remedy of
termnate the

nt. In su ca,

CONTR sha1l

OWNBR. elet to

CONTR have ag on tho method and 'prour , betwe them that may ne under th ,Aent. such
and to tho ,extent

that O

BR an

for rosolvlna disputes

be pad (without dup icatio of any ite

dispute resolutin method and prure,
fort In Bxhiblt

I: ,

Ji

Wo for an Douments prr to tho eRecaccordnce with the tlve dato 0( tennnatlon. Indudl", fir and renablo sums
for

cO Cotr

athe ,heo and' o . pa heref. If no suh aamont on the method aod proure for relvi luc disputes has ,
ben reed,

QC-A, " Dispute Reslutin ,

If any. shal be as set
.Ament," to be

verbead and prot on such Work;

. .' t

and

subj to tho provisio ofpaph '. 10,

' I. an 9. 12, OWNBR and

CONTR miy exeR'Jso

Case 1:04-cv-00163-GMS

Document 306-5

Filed 10/25/2006

Page 17 of 24

EXlBIT B

. "

", ,
CITY OF NEWARK

Case 1:04-cv-00163-GMS Road" P. O. Box :190 . Newark,Filed 10/25/2006 Document 306-5 Delawlu6 197(t). O:390 220 Elktn
302.368-

Page 18 of 24

7022

ax 302. 366.7160 . http://newark. dl:. uft

November 21, 2003

FIRST CLASS AND RfiGISTERED MAIL Donald M. Durkin Contracting, Inc. 1310 Industrial Blvd., Suite 201 Southampton, PA 18966
FIRST CLASS AND REGISTERED MAIL Agent: . Federal ' Insurance Company
One Libert Place

1660 Market Street
Philadelphia, PA 19103-7301
. Dear Sir or Madam:

The Shepherd Agency 7061 Camp HIli Road Suite 200

Fprt Washington, PA 19034 .

SUBJ:

City of Newark Contract No. . 02-

Construotlon of 8 Water Supply Reservoir Bond No. 8128..
On behalf of the CItV

of Newark, Delaware, I am writing to Inform you that we

Bre now considering declaring Donald M. Durkin Contracting, Inc. (DMD) In default of unlc1p81 Contract No. 02.. 02, pertaining to Construction of a Municipal Water Newark Supply Reservoir. This precautionary letter ha$ become necessary following DMD'

failure to present a response to a means. and methods for continuation of the project

In accordance wIth our contract.
As provided In the DMD performance bond on file with
requesting that 8
Corporation representatives and the C1ty

the

City, we are

of Newark. This meeting shall take place within fifteen (15) days of your receipt of this lerter. The Intent of the meeting wil
be to discuss methods for DMD' s faithful completion of this contract oonslstent with Its agreement with the City.

conference be held Including surety representatlvBs, DMD, URS

u 11'-_....,,,'"

.d

096L'ON

L609

19& 9Il

lNOJ NI MnO OlVNOO

d9t:lI 100l ' gl'H

Case 1:04-cv-00163-GMS Page 2 November 21, 2003

Document 306-5

Filed 10/25/2006

Page 19 of 24

schedule this meeting or to ask any questions prompted by this letter.

Please contact Assistant Administrator Carol Houck at 302- 366- 7020 to

1;w-.
Carl F. Luft

City Managet
CSH/bk Carol S. Houck, Assistant Administrator Roger A. Akin, City Solicitor Joseph A. Dombrowski, Director of Water & Wastewater Joseph Kula, URS

c:

e.

09SL'ON

L609

tge 9ll

MINOJ

HnO OlYNOO

Wd9t:ll tOOl ' 9l'Je

,.. ,/ -

,.

, "

Case 1:04-cv-00163-GMS

This document has important legal consequences: consultation with an attorney is encouraged with

Document 306-5 respect to its compJetion orFiled 10/25/2006 Page 20 of 24 modification.

STANAR
GENERA CONDITIONS
OF THE CONSTRUCTION CONTCT.
" J

Prepared by

Engneers Joint Contract Documents
and
Iss':ed and Published Jointly By
NATIONAL
SOCIETY OF PROfESSIONAL ENGINEERS
fOUNDED 19:1

Commttee

PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE
-, J

, NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS

A practice division of the

AMIUCAN- CONSULTmo ENGINEERS' COHNCiL '
AMERICAN SOCIE

OF CIVIL ENGINEERS

CONSTUCTON SPECIFICATIONS INSTITUTE
, J

This document has been approved and endorsed

The ASso.iateG
, ,JI

5:;.;

... of America

-' A,

, 1

Agreements for Engnering (198 Hdition). l\r gudace in the preparon of Conditions, see Guide to the Supplementa Prpation of Supplementa' Condtions (No. 191()17) (199 Edition). When bidding is iJivolved, the StadanfForm oflnstrctions to Bidders (No. 1910-12) (199 Edition) may be used.
Services and Contmc Doments (No. 1910-9)
ElCD No. 1910(199 Editi)

chane in one may other. Comments cocerning their usage ar, contaned in theIiCommenta on necita

These General Conditions have been prepared for use with the Owner-Cntractor Agrments (No. 191()A1910-A-2) (199 Editns). Their provisio ar 1 or interrte and

a chae in th

CC1241

;; :,"::"") .:jj")j"'-..... ":-..... . :' ' ;\ . ) , :.',

--- ..-. .
Document 306-5 Filed 10/25/2006 Page 21 of 24

--

Case 1:04-cv-00163-GMS

;' r"

surety or other

shal not give rise to any duty on the par of OWNER to exercise this rit for the beefit of CONTcrR or any

pay all claims

pay.

to rea ableness). If any such acceptance occurs prior to
Corctn or Renwwd of Defective Work:
13. 11. If reuire by ENGINEER, CONTcrR shall prmptly, as direed , eithercoiTt all defective Wor, wheer or not fabcaed; instaled or complet, or, if the Work has rejecte by ENGINEER, reove it from the site an

OWNER' s evaluation of and determination to accept such defective Work (such costs to be approved by ENGINEER as

, costs, losses and damages

attributable to

shall be entitled to an appropriate decreae in the Contract
. Prce, and, if the paes are unable to ag as, to the amount

ENGINEER' s recommendation of final paymet , a Change Order wil be issued incorprating the necessary revisions in the Contract Douments with respe to the Work; and OWNER

I 1'

frm such correcon or removal (incuding but not limited to all
cots of repar or replaceent of work of others).
13. u.

pay ail claims, cost,

re

be

it with Work that is not

defective.

losses and

dames caused by or resulting

CONTR shall

OWNER.

thereof, OWNER may make a claim therefor as provided iit Article II. If the accptqce ocurs after such reommendation, an approprite amount will be paid by CONTRACTR to

OWNER May

COt Defective Work:
by . orifCON-

"i
i ,

Coctn Perid:
12. 1.

OWNER may have the

emergency wh delay would cause serious risk of loss or dame, Wor coed rejeced Work removed and

an replace any e to " oter Work or ' the wor of thm. If CONTCTR do not prmptlyreslting wi the tes of suc instrctons, or in an coly
or remove

an (ij) sasfly

ftmth site an

tive

with OWNR' s written instrctons: (i corr such defecWor or, if it has be rejeced, by OWNER, remve it
replace it with Work that is not

ti as may be pre by Laws or Reglaons or by the " terms of any aplicale speal guartee by the Cotrct D0 uments or by any spec provision , of the Contn Douments, y Work is found to be defective CONTCTR shall promptly, cost to OWNR an in accrdance
period of

Completin or such lonr

sc

If within one yea afer the date of Substantial

Conti Dom ts, or if GONTCIR fails to comply.
may, " afer seven days '
rights and remedies
with any other provisiOn of the Contrt

TRcrR fals to peonn the Work in accordance with the
Doments , OWNER
written notice to

Work or to remove and replace rejeced Work as require ENGINEER in acrdance with

13. 14. If CONTACR fails within a reanable time afer wrten notice from ENGINEER - to corr defective

pah 13.

reuj

corrt and remedy any such deficiency. In exerising the

CONTcrR,

with

co

ot

defective.

rer CONTR.

losses and d es . or resulting from such remova and (including but not limte to all costs of or replacemet of work of other) will be paid by

replact

rep, and all claims . costs, caus by

defective

or the

dames inculTed or sustaned by OWNER in ex:ercising such

repreentatives , agents and employee , OWNER's other contrctors and ENGINEER and ENGINEER' s Consultats access to the site to enable OWNER toexereise the rights and remedies under this parph, All clams, costs, losses and

elsewher. CONTCIR shal auow OWNER, OWNER'

OWNER has paid CONTCTR " but which ar

tion equipment and machinery at the site and incorpte in the Work all materials and equipment store at the site or for which

possesion of CONTcrR' s tools, appliance, construc-

an suspend CONTRCIR' s services related thereto, tae
store

remedial actn, OWNER mayexcludeCONTRAR from all or par of the site, tae possession of all or pa of the Work,

uner t ispah ce expeitiously. In connetiOn with OWNER shall prosuch corrtive and

ij
:I

13. In spe cirCmsta wher it pacular item of equipmet is p ii continuou sece befor Substati Coq1leton of all the Wor, th for that

12.

may sta to run frlQ &t eaer date if so provided in CheSpecations or by Writt Amendmet.

coon peri

rights and remedies ' wil be chared agnst CONTCfR and a Qlange Order will be issed incorang the necess " revisions in the Contrct Docments with to the Work; and OWNBR shall"be entied to an ap in the

relac under this pa 13. 12, th corron peod
nder with

Wo reulting therfT)

13. 12.3.

Whre

defective

Wor (and damae to other
ha

additinal peod of one

re

be

co,

removed or

amount theref, OWNER may make a claim II. Suc claims, cost, los and damages prvided in wil include but not be limited to all costs of repar or replacemet of work of others destryed or damaged by corrion, , removal or replacement ofCONTCfR' defeCtive Work.

Cotr Prce, and, if the

redec

pa

unable to agree as to the

Ar

theor

to such Work wil be exteded for an
yea afer such

moval and replacement has

be

cdrr

or re-

of OWNER' s rights and remedies hereunder.

Contrct Times (or Milestones) becus of any delay in the' peonceofthe Woratt'btale to the exercise by OWNER

CONTR shal no be

allowed an extension of the

satisfctorly completed.

Aceep of Defeclve Wor:
13. 13.
replament of

ARTICLE I4-PAYMENT 10 CONTRACTR AND
COMPLETION
removal and

If, instea of reuiring corron or
defective

i) I

prer foacc it, OWNER may do so. CONTCTR shall

Wor, OWNER (and, prior to ENGINEER' s remmendation offina payment, alo ENGINEER)

Schdu oj Val:

pah 2. 9 wil serve as the basis for progre payments and
CC1279
'0'.

14. 1. The schedule of

values esblished as provided

' (

.,, , -.: :;, , ,

Case 1:04-cv-00163-GMS

Document 306-5

Filed 10/25/2006
14... 1.
the

Page 22 of 24

wil be incorPrated into a form , of Application for Payment acceptale to ENGINEER. Progrss payments on accont of
Unit Price Work wil be based on the number of units completed.

Work haS progresed to the point

indicated

A(p1kn for Prores
14. 2. At leat

Paymen:
established

twenty days before the dat

, each progress payment (but not inore often than once a month), CONTCTR shall submit .to E GlNEER for
teview an Application for Payment filed out and signed by CONTCTR covering the Work completed as of the date
of the Application and

for

tests caled for in the Contrct Douments, to a fina determnatin of quantities and classifcations for Unit Prce Work under paraph 9. 10, and to any other qualifications staed in th remmendation), and
14.5. 3. the beng entitl to such
fulfile in so

14... 2. the quaity of the Work is generlly in accdance with the Contract Documents (subject to an evaluation fthe Work as a functioning whole prior to or upon Substatial Competion, to the reultS of any subsequent

coitins preent to CONTRAClR'

docmentation as is reuire

accompaied by such supprting
by

the Contrct Douments. If

observe the Work
However, by
exhaustive or

paymet appe to have ben fa as it is ENGINEER' s reponsibilty to

ment not incorpftted in the Work but delivere and suitably
store at the site or at another lotion .agree to in writing, th Application for Payment shall also be accmpanied by a bill of sale , invoice Or other documentaion warnting. that OWNER has received the materials an equipment fre and

payment is reuested on the bais of materials and ' equip-

wil no therey be deemed to

remmending any such payment ENGINEER have represte that: 6)
continuou on-site insptins
have

be mae
.i

to check the quaity or th quatity of

dea of all Liens
aDd other

and evidence that the

materials
therein,

equipment ar covere by. appropriate property insurace
arngements to protect OWNER ' sinteret

or issues betwee' th paes th mi"t entitle , lOR to be paid additiy by OWNER or entitle OWNER to
withhold payment to

Cotr Douments or (ii)

reponsibilties speficaly assigned to ENGINEER in the
tht ther may not be

the Work beyond the

other

all of which wil be satisfactory to OWNER. The amount of
retainae with resPect to

(XNTR.
redation
or

CONT

matt

stpulated in the Agrment.

progss payments

wil be as

14. 6. ENGINEER' of any payment, including fina payment, shal not mea that' ENGINEER' is

CONTR'
14.3.

Wcr

of

Ti:
and

all Wor, materials and equipment coVer by :lny, Application
foc Payment, wheth

CONTR WaJts

guee th title to

cale to the fushng or peonnce of Wor, or for any
fal1ure of

CONTR to c:mpy with Laws anfor any filur of Reglatins appli
CONTcrR .to peon or
furnsh Work in

seuen or procure of constron, or the saety preus an
incdent ther"

ibleforCONTRACIR' s meas, meths, technique, .

pr

dea of all Liens.
pas to ,OWNER no later than th
Review of Applions

incote in the Proje or not, wil
time of paymet fre and

accord with the Cotrct Doments.

for ProgrPapnJ

days ea Aplicaon for Payment, eith indiceaf, rept of in writing a

14.4. ENGINEER will, within ten

OWNER, or return th Applican eang in wrting ENGINEER' me paymt. In the latter

rendation of payment and Prt
to

th

days

OWNER with ENGINEER'
7)

reniti, ten of parah 14. bee due and wh CONTCfR.
by OWNER to

ne coons anrebliit th af
ba

res CONTR iod- ' for resing to remca; CONTR
may make
Appliction. Ten

th Applicn

14. 7 ENGINEER may to the whole or any pa of any payment if, in ENGINEER' s opinion, it would be to make the rentations to OWNER refem to in 14.5. ENGINEER may also refuse to men any such paymet , or, bese of subsuently disovere evider or the reults of subsequent inspeons or tests, nullify any such payment preusly remmended, to such extent as may be in ENGINEER' s opinion to protec OWNER from 1os

re

recnd

incO

pah
14.

rein

ben

pretatin of th Apication

14. 7.2. the

for Payment

ten Amenmet or
14. 7.3. '
tive

da Cotr c:mconor rering
1. , the Wo
is

nebese:
rep1acmen

defective" or copleted Work has

Chan

Price has be

remened wil (subje to tbe prvisioofthe last sen. due wil be paid

th amunt

reuce Order,

by Writ-

OWNER ha ben require to colT

Work or colete Work in
14.

t3. 14,

acance with parra

defec-

14.5. ENGINEER' s recmmendon of any payment re quested in an Application for Paymnt wil constitute a represetation by BNGINEER to OWNER, on ENGINEER'
on-site obsemtions of the exected WM as .an exprien an qualified desig professional and 0! ENGINEER' s review of the Application foc Payment and th accmpnyirm dat an scedule, that to the best of ENGfNBER' s knowledge, information and belief:

currnc of any of the events enumerated in parahs
15. 2.1 through 15. 4 inclusve.

7.4. E1'GINBERhas actua knowledge of the

reened by ENGINEER beuse:
the Wor,

OWNER may reuse to make payment of the full amount
7.5. clams . have ben made agnst

acct of CONTRActRs performance or furnishing of
CC1280

OWNER on

- :)!,.' " ' ,, 'j , ;,
::, : ' '', , , I

. '. -

',

.,
Filed 10/25/2006 Page 23 of 24
ENGINEER in writing prior to ENGINEER'
definitive certficae of SubstantiaJ
s issuing the
ENGINEER' afored recommendation wil beCompleti, OWNER and binding on

Case 1:04-cv-00163-GMS

Document 306-5

J:"

satisfactory to OWNER ' to satisfaction and of suchUens, ,
speific Bond'

Work, except where CONTRACIR has delivered a

14. 6. Liens have been fied in connection with the

disce

secure the

CONTRAR unti fiaJ paymet. '

"I
: Fl

14. 7. there ar other items entitling OWNER to a set-off aganst the amount remmended , or

14.

rece of any of the events enumeraed in
, 14.7. 1 thl"ugh 14.
, inclusive;
3 or

8. OWNER has, actuaJ knowledge of the ocurpaihs 15. 2.1
throgh 15. 2.4

pahs
ns for

14. OWNER shall have the rit to exclude CONTCTOR from the Work afer the date of Substanti Completion, but OWNER shal alloW reonable complete or COIT , items on the tentative, list

9.

CONTR

acc

Par Utin:
pa of th Wor whiCh: (J has speifcay ben identified in th Contrct Doments; or ('u') OWNER ENGINEER and GONTR ag constes a
sepaused

j ; II

but OWNER must, giveCONTCIR immediate written notice (With a copy to ENGINEER) stating
sUch acton and proptly pay

f.J;1
1"'

withheld or any adjustmnt threto to by OWNER CONTRACIR, when COlTects to OWN ER' s satisfacton th reons for such aCllon.
Substti Compleon:
14. 8;

ag CONTR

CONT(;R th amount

th r

statially coinl

'4. 10. Use by OWNER at OWNER' s option ofany sub-

so

nttey functining an, usle pa of the Work tht ca be . by OwNER for its inteed purpse withut siificat

ferce witt CONT'
14. 10.

of the Work, may be
When consider Ihe entire Work intended useCONTCIRshaJl notfy
the entire

pletion of all the Work subjec to tbe following:

Peor render acis Substi ,
of the
prir to

inter-

Com-

rey fori

CONTCIR

f) I
91,

Wor is substantiaJly comPlete (excet for items speificaly listed by CONTCTOR as incomplete) and reques that ,ENOI EER issue a certcate of Substatial Competin Withn a renable time therr, OWNER, and ENGINEER shall mae an inspetion of: the Work to detennne the sta of copletiOn. If ENGINEER dos not consider, the Work sub-

an aNGlNEER in wrting that

OwNER

CONTR

statily complete,

inwrtic1 giving the

ENGINEER wil and deliver to OWNER a tentative cecate of SubstatiaJ Copletion which shall fix the date of Substati Completn. There shall be attache to the certificate a tentave list of items
to be completed or COlTected before

th Worksubstantially complete,

rens thereor. IfENOINEER considers ,

aNOINEER wil noti

CONTCIR

pre

shal have seven .days afer

:/J

any provisions of th

ated list If, afer coiderng sucb objections, ENGINEER concudes that the
certficae or

durng which to mae wrtten objecti

rept

finaJ payment. OWNER of the tentative cecate

to ENGINEER as to

" i:
'

.1,

tbWork sUbsttily COlete, ENGI. NEER will within said foorteeitdays execte and deli OWNER CONTcrR. a delillitive ceficae of er SubCOfupleti (with a revise tentative list of items to comPleted , or coiT rdiCcng. such chaes the tentative certficate as ENGINEBR beieves justified afer . C(qsidertion of any objecons ftom OWNER. At the time of deliver of Ihe tentative certcate of SubSntial Completion ENGINEER will deliyer to OWNER an written remmendation as to division of

th rens theror. If, after con$eratioh of OWNER' objes, EN OINEER consider

ceca OWNER notfy CONTR in wring, stang
fourteen days afer submssion of thcteitatie

WOr is not sUbstantily coete, ENQINEER wilfwiChin

OWNR to use any such OWNER beieves to be reay for its intened us sUbstatiaily compete. If CON': 'TRCTR. that such pa of the Work is substantially coplte, CONTcrR to OWNER wiD and ENGINEER that su pa of th Work is substatially compete and reuest ENGINEER to issue a , ice of SII Quleton for t pa of the Work. at anytime may no. OWNER and ENGINEER , in, wrting , that CONTCTR considers any such pa of Wor rey for its inteed us and UbstatilY complete and ENGINEBR to issue a cecate of Silbstatial Completion for that Pa of the Work Within a reanable afer eith such reues, OWNER, an ENGINEER shal mae aD inspeon of th pa of th Wor ' to detenne its eton. If ENGINEER do no consder tht of th Wor to be coete, ENGINBIJR wil not OWN an
par of th
Work which

TRCTR in writing to

1. OWNER " at any time may reuest CON-

pet

8g

an

ce,

tati CON1R

CONrR ti

i-t

$I

repe there and aCC thereo. .
. Of

sub$tay compet, the s 14;8 and ' 14.9 wil ,apy ' with repe to ceon of SubshJnti Coeton of pa of the 'Wor" and ' th division of responsibiltytht in
Work to be"
prviSiOn of

th pa of th

in&Mth

re

Sutily CON1R hi wrttheror If
ENGINER considers

Stti

fr

the teq iremets of parah insurace. -

14;10.2 No oCupacy or sepate opetion of par ' th wOr Wil be accmpished prior to Compliance with
15

in repe

of property

CONTR

Fbu Insct:

ties, insurance and wlUties and guantee. Unles OWNER, . and CONTCTR agre otherwise in writing and so infoam

CONTRARWith resp to secrity, opetion, saety, nwntenance, hea
utli

ing final payment between 9WNBR a"d

rensibilities pend-

enti Wor or an

tRC1R. an

fro CONTR ag inspetioowith cote, that the portn ther ENOINBaR will mae Ii fina
'14.

11. Upon wrttn notice

is

OWNER and CONwill notfy CONTCTR in wrting of all

CC1281

Case 1:04-cv-00163-GMS

Document 306-5

Filed 10/25/2006

Page 24 of 24

tht pacula in which this iipeon reveas shall' the CONTR immediately
incolete or defective.

Work is

, CONTC1R.
pletion of the Wor

tae such meaures as ;u necssary to

complete such Wor or

remey such deficiencis.

is sigfindy delayed an if ENGINEER so cofirm, OWNER shal, upo fina AplCti for Payment an remmation of BNOI-

14. 14.

If, throgh no falt ofCONmR. fina 00-

rept ofCONT'

Fin

Apn
to the

for &;ment:

NEER im Witht, tennating th due for porton ment of th

. caes or other

rens with the Contrct Domets acrdinstrctions, scules, guartees, Bonds, ceopng evienc finsu reuire by
all mantenanc pah

14. i2.

After CONTCfR has completed all such co-

satisfon of BNGlNEER an deliver in

'York , funy of comped am accpt. If the rening baanc to be hed by . OWNER for Work no MlY coeted OrCOCd is and if BOns have stpuated in the

ba

th
pa

Agt, make pay.
1.

threnae
ben

by: (i all docmentati cale for in th Cotr Domets, of insura not1imited to the e of th suy, ifany, to fina 13, 00 by subpah 5.4. and legly efecve paymt, and (iii) , waver (sasfactory to OWNER) of all Uens arsing out of or in coneCtion wit the WOr In lie of such relea or

cete pa 6. pr apication for fina paymApplicaon fo. pr' prureshal be accmpa Th fina Paymnt
of inspeion nWed-up rec. documents (as 19) and oth ocment, CONTin
payments.
may mak fOr
following the

paymt of th balanc du for tht ' sent of the Wor fuly coted an acpted . poio Of R to BNGlNBBR with theAp. sUbied by. c:tifor su ptymt. Su' paymet sba be mad
th surety to th

fuis
and

Agme,

le th

as reuire

th wrtte co-

sh un'

th ter
Wai

coitnsgovem fili payment, excet
ver of claims.

tht

it shal no

const a

(excetaS preiosly deliver)

inngbu

coete

co

reui

of

CI:
an acctanc of final 'paymetwUl
claims bY OWNER agns
afer Onal

reea

14.15. The mang

infuUan an afavit Of 10Rtiy fuish rept or ai reipts inc\udeall CONTR an eqip for which a Uen cold la, seh bills an ' , be fied, aI (ii) all payrls, maen: an equit with th Worfor which OWNER '
that: (i the

fi of Uens waVe

constute:

and as approved' by

re

OWNR, CON'-

15J. :a .waver of all coNT aPng
14.
fro defediveWork pa

exc c;ms arsingft unSie UCns,

an to
Coct

1t, ,

otinedneeoed iai 80y way be or OWNER' pro mit or othrwse sati. If any Subctraorfull, be rept in Super fals to fuoU su a rele or colatera sastONTR mayfuis a Bond or ot fatory to OvyNER to indemnify qWNER
reponsibe have
paid' or

fl" sped thn, oreotfCONTR' scontiauiOO .Donts; an th

or the

iOs to coy fr faluray.spe pt:. ten
wih th
of

liti

agnst any Uen.

OWNER oth thn tho' previslyma in wrting an still

14. 15.2

unsed.
TEINATION
. At

awaveiotailclmsbyCONTRapil

Fin Pqrinttll4

Acd:
ba
of ENGINEeR'
of ' the
for Pa

ARTJCLE IS-OSPBNSIONOFWORK AND
;r

, 14.13. If" on the Woa .durng ,

NBEI

w , of

,

obti wit, an co co' Dot$ Qmtr. afwri BNGlNEER' reetn reor thfi Apiicti for Wi te
' have be fuUe
tt' soth
unde th

)'iog DQmet$, ENGINEBR is
, days

Apic Rq dotisatb
th , fina
as

aI fi inson, and ENOIand

by the Co the Wor ha

OWNM4I sqi, Wfr
. , 15. 1.

BNGlNEER '

Paymt, indicate io

to OWNER fo.payof paymt and prt th Appf 'ENGlNEER will also give wrtten met. At the e wOrk . is that notice , to OWNeR IS. Oth acptale subje to the proVisions of rern th Apication to: CONerse, ENGINEER wil

sa ti. CONTR .n

. ENGINEER whic

wit cause, OWNER maysus-, ' pe mo an Po pe the W9d or by no inthforaCO qf noRan wrtiOg to days Ih nine the da onwh. WOl wlf be , ,
y tll1 .nd

wi fix

pa 14.

TRCIR. indicating in writing the rens for
RCmmeoo fina payment, in whic

to OWNER of th Apicain appro form . lioo an acpaying . rendati an an substa. an wiENOINBBR'
Thrty day; afer, the prtation

ma th

nec

cotions an .ebmit

caCONT Shll the Applicon.

re

sO fixed. CON'R sh bealed an 8(usl in the . Cctr Pr or an cxteniO of th Cotr Ti, _bo.
direy at'btabie to any su suSpsi ifCO maes. an liproved claim thor as pro\1 in
R.'

reme. CONTRR

shal

R\ -the Wor

on th date

and 12.
OwNBR M41
IS.
folloWing events:

Arcl, 1 I

amnt reCn by SNGIno of aCAtabiity, thBo win be , pad by OWNaR' to due beme
NBBR wil

CIta,

Upo the , oirree of anyon ,or mo of
CC1282