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Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790
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IN THE COMMON PLEAS COURT OF FRANKLIN COUNTY, OHIO
ALLTANK SYSTEMS, INC.
CASE No. 20 CV 003790
PLAINTIFF,
JUDGE Junie LYNCH
v.
MARKER, INC.
DEPENDANT.
DEFENDANT MARKER, INC.’S MOTION FOR SUMMARY JUDGMENT
Now comes Defendant Marker, Inc. (“Marker,” formerly Thomas & Marker Construction
Company}, by and through undersigned counsel, and hereby respectfully moves this Court for
Summary Judgment pursuant to Ohio Civil Rule 56. A memorandum in support of this Motion
along with evidentiary materials are provided herein.
Respectfully submitted,
THOMPSON, DUNLAP & HEYDINGER, LTD,
Terrence G. Stolly (#0073266)
Hild Rush Ave., P.O. Box 68
Bellefontaine, Ohio 43311-0068
Telephone: 937-593-6065
Facsimile: 937-593-9978
Email: tstolly@tdhlaw.com
ATTORNEY FOR MARKER, INC.
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MEMORANDUM IN SUPPORT.
1. ProcepursL History
This action was commenced by Plaintiff Alltank Systems, Inc. (“Plaintiff”) with the filing
of Plaintiffs Complaint on Aime 12, 2020. Plaintiffs Complaint asserts four causes of action
against Marker, to wit: @) Breach of Contract; (ii) Unjust Enrichment; (iii) Prompt Pay Act
Violation; and (iv) Declaratory Judgment Regarding Funds. Marker, in good faith, filed its
Answer and Counterclaim on June 25, 2020. Marker’s Counterclaim asserts three compulsory
counterclaims against Plaintiff in accordance with Civil Rule 13(A), to wit: @ Breach of
Contract; (ii) Failure to Perform in a Workmanlike Manner; and (iii) Material Misrepresentation.
Plaintiff served its discovery requests upon Marker on July 7, 2020; Marker responded on
August 7, 2020. Marker served its discovery requests upon Plaintiff on July 22, 2020; Plaintiff
responded on September 18, 2020. Marker conducted an Ohio Civil Rule 30(B)(5) deposition of
Plaintiff's owner, Phil Havel, on or about November 20, 2020. Plaintiff conducted the
depositions of Steven Tremper and Danny Berry—employees of Marker—on or about
November 20, 2020. On February 9, 2021, this Court granted Plaintiff's Counsel’s Motion to
Withdraw.
Marker filed its Motion for Partial Summary Judgment on all of Plaintiff's causes of
action on March 19, 2021. In the interest of preserving judicial and private economy, Marker
now respectiully offers its Motion for Summary Judgment as there are no genuine issues of
material facts and Marker is entitled to judgment as a matter of law.
Ui. UnpispuTep Facts
The Ohio Facilities Construction Commission (COFCC”) is the owner of the Roberts
Road Full Service Maintenance Facility public improvements project (the “Project”). Affidavit of
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Kirk Marker (hereinafter Exhibit A). Marker was the general contractor on the Project. Id.
Marker and Plaintiff exchanged a signed letter of intent on or about September 13, 2018
memorializing the agreement for Plaintiff to perform the above-ground fuel-storage tanks scope
of work (the “Scope of Work’) on the Project; the parties fully executed their subcontract on or
about October 15, 2019 (the “Agreement”}. Jd. The initial Project completion date was June 27,
2019. id,
RC, § 153.03 requires contractors and their subcontractors on a public improvement
contract, to participate in the Ohio BWC Drug-Free Workplace Program. Paragraph 6 of the
Scope of Work to the Agreement states that “[flailure to complete [Prevailing Wage]
documentation will result in payment delays.” id. Furthermore, Plaintiff was required, under
Section I of the Agreement’s Terms and Conditions, to notify Marker “of the names of
sub-subcontractors who will furnish labor or materials’ on the Project, and that each
sub-subcontractor and material supplier were also bounds by the terms above. Jd.
Section G(2) of the Agreement states that Plaintiff “will pay all attorney fees, court costs
and other expenses arising from . . . any injury, loss or damage arising out of the performance of
the work or furnishing of the materials .. . by [Plaintiff].”” Jd.
Section H(2)(b) of the Agreement provides Marker the right to withhold current and
future payments due to Plaintiff that are necessary to protect Marker from defective work or
materials of Plaintiff that are not remedied, and from claims filed or likely to be filed as a result
of the aforementioned defects. id.
Section C, titled “Harmony Clause,” is the Agreement’s supplemental conditions of
contract wherein it states: “Should [Plaintiff] at any time neglect to supply a sufficient number of
properly skilled workmen or fail in any respect to prosecute the work with promptness and
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diligence .. . [Marker] may, without prejudice to any other right or remedy, by written notice
terminate the [Agreement] for the said work and employ any other person or persons to finish the
work,” and Plaintiff must pay Marker for the costs to finish the Scope of Work. Id.
Marker exercised its contractual rights prudently and justifiably.
On September 23, 2019, Plaintiff supplied its Affidavit of Subcontractors and Suppliers
to Marker, disclosing onfy Stanwade Metal Products and Alltank Systems. Jd. On October 15,
2019, Plaintiff supplied its Subcontractor and Material Supplier Declaration to Marker,
disclosing Jones & Frank and Davis Pickering Fab, LLC as its only subcontractors and material
suppliers. /d. For these four sub-subcontractors and material suppliers, Plaintiff complied with
the terms of the Agreement by ensuring each participated in the Ohio BWC Drug-Free
Workplace Program and that each provided prevailing wage documentation. /d. However, on
November 15, 2019, Plaintiff engaged Superior Petroleum Equipment, LLC (‘Superior’) as an
additional sub-subcontractor. Id, Plaintiff did not certify that Superior participated in the Ohio
BWC Drug-Free Workplace Program as required by the terms of the Agreement and R.C. §
153.03. id. Neither did Plaintiff provide Superior’s prevailing wage documentation which was
also required by the terms of the Agreement. fd.
Marker concedes that Plaintiff supplied some materials and labor to the Project. id.
However, during the course of the Project, Plaintiff () failed to timely order and deliver
materials to the Project, (ii) failed to properly and timely staff the Project site, (iii) failed to
schedule required inspections, (iv) failed to cure defective work, (v) failed to disclose its
sub-subcontractor, Superior, to Marker, and (vi) failed to perform its contractual obligations
under the Agreement; all of which caused significant critical path delays. Jd. Despite being given
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opportunities to correct its deficiencies, Plaintiff failed to remedy those defects or complete its
Scope of Work. fd.
Marker mitigaied its damages and obligations to OFCC by terminating Plaintiff
and performing, through it and its subcontractors, the remedial work necessary to correct and
complete Plaintiff's Scope of Work at its own costs—an amount of af least $35,400.00. Id.
Additionally, as a direct result of the critical path delays caused by Plaintiff and its defective and
uncompleted work, Marker was forced to pay damages to OFCC in the amount of $46,778.00.
id. Marker has incurred substantial costs to remedy Plaintiff's defective workmanship and
complete its scope of work in addition to the costs for extended general conditions and the
damages it paid to OFCC. Jd. Marker has also incurred damages, to date, amounting to
$19,742.53 in attorney fees and court costs as a direct result of Plaintiffs defective and
uncompleted work. Jd.
TIL STANDARD FOR SUMMARY JUDGMENT
Summary judgment is a procedural device designed to dispose expeditiously and
economically of legal claims for which there is no factual foundation. Cefotex Corp. v. Catreit,
477 US. 317, 327, 106 S.Ct. 2547 (1986). The United States Supreme Court characterizes the
function of summary judgment as follows:
[s]ummary judgment is properly regarded not as a disfavored procedural shortcut,
but rather as an integral part of the [Civil] Rules as a whole, which are designed to
iu secure the just, speedy and inexpensive determination of every action.
The Ohio Supreme Court endorses this view, as well. North v. Pennsylvania RR. Co.,
9 Ohio St. 2d 169, 171, 224 NE. 2d 757 (1967).
‘The propriety of rendering summary judgment hinges upon the tripartite demonstration
thai (1) there is no genuine issue as to any material facts; (2) the moving party is entitled to
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judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that
conclusion is adverse to the party against whom the motion for summary judgment is made.
Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978);
Civ. R. 56(C).
Yo make this showing, the initial burden lies with the movant to inform the Court of the
basis for the motion and identify those portions of the record, including pleadings, depositions,
answers to interrogatories, written admissions, and affidavits that demonstrate the absence of
genuine issue of material fact on the essential element(s) of the nonmoving party’s claims.
Civ. R. 56(C); Dresher v. Burt, 75 Obio St.3d 280, 293, 662 N.E.2d 264 (1996). Upon making
such a showing, the burden shifts to the nonmoving party to show that an issue of fact does exisi,
or that the law does not support a finding in favor of the movant. Dresher, 75 Ohio St.3d at 293.
While a motion for summary judgment must be supported with specific evidence, the
nommoving party bears a reciprocal burden of specificity. Under Rule 56(E), “[wihen a motion
for summary judgment is made and supported as provided in this rule, an adverse party may not
rest upon the mere allegations or denials of his pleadings, but fits] response, by affidavit or as
otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue
for trial.” In view of this requirement, the party must present some evidence in support of the
claims the party must substantiate at trial. See Jackson v, Alert Fire & Safety Equip., Inc., 58
Ohio St.3d 48, 51, 567 N.E.2d 1027 (1991); Pauéd v. Uniroyal Plastics Co., Inc., 62 Obio App.3d
277, 281, 575 N.E.2d 484 (6th Dist.1988).
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TV. Law Anp ARGUMENT
Marker’s First Cause of Action for Breach of Contract should be resolved in
Marker’s faver because {i} Plaintiff failed te perform its contractual
obligations in accordance with the terms of the Agreement; (i) the work that
Plaintiff did do was deficient and failed necessary inspections; and (ili)
Marker was damaged when it had to correct and complete Plaintiff's scope
of work at additional cost.
The essential elements for a Breach of Contract claim are (1) the existence of a valid
contract; (2) performance on the contract by one party; (3) a failure of the other party to perform
its contractual obligations; and (4) damages as a result of the breaching party’s failare to perform
its contractual obligations. Jarupan v. Hanna, 173 Ohio App.3d 284, 2007-Ohio-S08; see also,
Prime Props., Lid. Partnership v. Badah Ents., 8th Dist. Cuyahoga No. 99827, 2014-Ohio-206.
Marker and Plaintiff entered into a valid Agreement. Exhibit A. Plaintiff breached its
obligations under the Agreement by failing to perform its Scope of Work in a timely and
workunanlike manner resulting in numerous deficiencies, delays, and defective work. Jd. Despite
being given opportunities to correct its deficiencies, Plaintiff failed to remedy those defects or
complete its Scope of Work. Jd Marker mitigated its damages and obligations to OFCC by
performing, through it and its subcontractors, the remedial work necessary to correct and
complete Plaintiff's Scope of Work. fa.
Marker was forced to pay damages to OFCC as a direct result of Plaintiff's defective and
uncompleted work causing critical path delays in the entire Project. dd Marker has incurred
substantial costs to remedy Plaintiff's defective workmanship and complete its Scope of Work in
addition to the costs for extended general conditions and the damages it paid to OFCC. Id.
Plaintiff also breached the Agreement by engaging its sub-subcontractor, Superior,
without disclosing that sub-subcontracior to Marker as required by the terms of the Agreement.
id. Superior did not complete the required prevailing wage documentation, nor was it enrolled in
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the Ohio BWC Drug-Free Workplace Program. Jd. Both of these instances of conduct constitute
breach of the terms of the Agreement.
Marker has a right ander the terms of the Agreement to withhold current and future
payments due to Plaintiff that are necessary to protect Marker from defective work or materials
of Plaintiff that are not remedied, and claims filed or likely to be filed as a result of the
aforementioned defects. fd. Marker is also entitled to have its attomey fees and court costs paid
by Plaintiff. dé, Marker exercised its rights prudently and justifiably.
As a result of the aforementioned, there are no genuine issues as to any material fact
involving the allegations of breach of contract and Marker is, therefore, entitled to judgment as a
matter of law as to Marker’s First Cause of Action,
Marker’s Second Cause of Action for Failure to Perform in a Workmanlike
Manner should be resolved in Marker’s favor because Plaintiffs work was
deficient and failed necessary inspections.
The duty to perform in a workmanlike manner arises from the contractual relationship of
the parties; a breach of that duty supports Marker’s Second Cause of Action. Kishmarton v.
Willaim Bailey Constr., inc., 93 Ohio S$t.3d 226, 228-29, 754 N.E.2d 785 (2001) (stating the
“contract governs the warranty of good workmanship; therefore, the warranty of good
workmanship arises from the contract. It can hardly be otherwise.”); see alsa, ¢.g., Vanderschrier
vy. 4aron, 103 Ohio App. 340, 140 N.E.2d 819 (8th Dist. 1957): Lloyd v. William Fannin Bldrs.,
Jnc., 40 Ohio App.2d 507, 516, 320 N.E.2d 738 COth Dist. 1973); Tibbs v. Nat'l Homes Constr.
Corp., 52 Ohio App.2d 281, 292-93, 369 N.B.2d 1218 (ist Dist. 1977); Barton v. Ellis, 34 Ohio
App.3d 251, 252-53, 518 N.E.2d 18 (10th Dist. 1986).
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The above-cited cases, and the hundreds more like them, establish that a party can—and
usually does—maintain and prevail on both a breach of contract claim and a failure to perform in
a workmanlike manner claim.
Plaintiff and Marker entered into a valid Agreement. Exhibit A, By the terms of that
Agreement and Ohio law, both an implied warranty of good workmanship and an express
contractual warranty were imposed on Plaintiff. fd.
Plaintiff breached those warranties when it (i) failed to timely order and deliver materials
to the Project, (i) failed to properly and timely staff the Project site, (ili) failed to schedule
required inspections, {iv} failed to cure defective work, (v)} failed to report its sub-subcontractor,
Superior, to Marker, and (vi) failed to perform its contractual obligations under the Agreement,
id. As a result of Plaintiff's repeated failures, Marker terminated Plaintiff and mitigated its
damages and obligations to OFCC by correcting Plaintiff's defective work and completing
Plaintiff's Scope of Work at its own costs. Jd.
As a result of the aforementioned, there are no genuine issues as to any material fact
involving the failure to perform in a workmanlike manner and Marker is, therefore, entitled to
judgment as a matter of law as to Marker’s Second Cause of Action.
Marker’s Third Cause of Action for Material Misrepresentation should be
resolved in Marker’s favor because Plaintiff used an undisclosed
subcontractor on the Project that did not satisfy contractual requirements.
In order to establish a claim of material or fraudulent misrepresentation, Marker must
show that (1) Plaintiff represented, or where there is a duty to disclose, concealed a fact, (2)
which is material to the Agreement, (3) made falsely, with knowledge of its falsity, or with such
utter disregard and recklessness as to whether it is true or false that knowledge may be inferred,
(4) with the intent of misleading Marker into relying on it, (5) justifiable reliance upon the
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representation or concealment, and (6) a resulting injury proximately caused by the reliance.
Buchanan v. Improved Properties, LLC, 7 N.£.3d 634, 2014-Ohio-263, 4 14 Gd Dist.) (citing
Cardi v, Gump, 121 Ohio App.34 16, 698 N.E.2d 1018 (8th Dist. 1997)).
The Project required that all subcontractors and material suppliers be properly disclosed
and that those identified subcontractors and material suppliers submitted prevailing wage
documentation and participated in the Ohio BWC Drug-Free Workplace Program. Exhibit A.
These requirements were imposed on Plaintiff by the terms of the Agreement. Jd. On September
23, 2019, Plaintiff supplied its Affidavit of Subcontractors and Suppliers to Marker, disclosing
only Stanwade Metal Products and Alltank Systems. /d. On October 15, 2019, Plaintiff supplied
its Subcontractor and Material Supplier Declaration to Marker, disclosing Jones & Frank and
Davis Pickering Fab, LLC as its only subcontractors and material suppliers. id.
Plaintiff complied with the terms of the Agreement for the identified sub-subcontractors
and material suppliers by ensuring each participated in the Ohio BWC Drug-Free Workplace
Program and that each provided prevailing wage documentation. id. However, on November 15,
2019, Plaintiff engaged Superior as an additional sub-subcontractor. fd. Plaintiff did not certify
that Superior participated in the Ohio BWC Drug-Free Workplace Program as required by the
terms of the Agreement. /d. Neither did Plaintiff provide Superior’s prevailing wage
documentation which were also required by the terms of the Agreement. Jd.
At all times, Plaintiff was aware of its contractual obligations to provide such information
and to appropriately disclose its sub-subcontractors and material suppliers, and to supplement the
same upon engaging new entities. Plaintiff knowingly failed to appropriately disclose Superior as
its sub-subcontractor to Marker as it had in September and October 2019 with its other
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sub-subcontractors and suppliers. Plaintiff's actions were undertaken with the intent to mislead
Marker into believing that Plaintiff was conforming to the requirements of the Agreement.
Marker justifiably relied on Plaintiff's September and October 2019 disclosures of its
sub-subcontractors and suppliers. /d When Marker learned that Plaintiff had engaged an
undisclosed, nonconforming sub-subcontractor—Superior—for work on the Project, Marker was
forced to terminate the Agreement with Plaintiff, correct Plaintiff's defective work, and complete
Plaintiff's Scope of Work at its own costs. fd.
As a result of the aforementioned, there are no genuine issues as to any material fact
involving material misrepresentation and Marker is, therefore, entitled to judgment as a matter of
law as to Marker’s Third Cause of Action.
¥. CONCLUSION
There are no genuine issues of material fact; based on the standards set forth in Rule
56(C), Marker is entitled to judgment as a matter of law on all of its causes of action. Marker is,
additionally, entitled to judgment in the amount of $19,742.53 for its attorney fees, court costs
and other expenses arising out of Plaintiff's defective and incomplete work on the Project,
Marker, therefore, respectfully requests that this Court grant its Motion for Summary Judgment.
Respectfully submitted,
THOMPSON, DUNLAP & HEYDINGER, LTD.
OAs,
T111 Rush Ave., P.G. Box 68
Bellefontaine, Ohio 43311-0068
Telephone: 937-593-6065
Facsimile: 937-593-9978
Email: tstolly@tdhlaw.com
ATTORNEY FOR MARKER, INC.
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served upon the
following via email this &s-day of April, 2021:
Jameson K. George
The Law Office of Wright & Associates, LLC
175 S. Third St, Ste. 200
Columbus, OH 43215
jameson@wright-lic.com
Attorney for Plaintiff
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]
WWW
IN THE COMMON PLEAS COURT OF FRANKLIN COUNTY, OHIO
ALLTANK SYSTEMS, INC.
CASE No. 20 CV 003790
PLAINTIFF,
Vv.
JUDGE JULIE LYNCH
MARKER, INC.
DEFENDANT.
AFFID
STATE OF OHIO }
)88:
COUNTY OF LOGAN )
Now comes Kirk Marker, who after first being duly cautioned and swom, according to
law, deposes and says as follows:
1
we
iam over the age of eighteen (18) and have personal knowledge of all facts set forth
herein.
. Lam General Counsel for Marker, Inc. (“Marker”).
The Ohio Facilities Construction Commission (‘OFCC”) is the owner of the Roberts
Road Full Service Maintenance Facility public improvements project (the “Project”}.
See Exhibit A-1.
Marker was the general contractor on the Project.
Plaintiff Altank Systems, Inc. (“Plaintiff”) and Marker exchanged a signed letter of
intent on or about September 13, 2018 memorializing the agreement for Plaintiff to
perform the above-ground fuel-storage tanks scope of work (the “Scope of Work”) on
the Project; the parties fully executed their subcontract on or about October 15, 2019
(the “Agreement”). The original scheduled completion date of the Project was June
27, 2019. See Exhibit A-2.
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6. Plaintiffs Scope of Work—generally, the procurement and installation of gasoline
and diesel fuel tanks, pumps, fuel lines, sensors, and the system’s related electrical
components—was critical to the Project.
7. Contractors and their subcontractors are required to be enrolled in the Ohio BWC
Drug-Free Workplace Program pursuant to RC § 153.03. Additionally, subcontractors
are required to provide prevailing wage documentation for their sub-subcontractors
and suppliers.
8. In order to ensure that all subcontractors, sub-subcontractors, and suppliers are in
compliance with these requirements, and others, these entities are required to be fully
disclosed to the general contractor and, ultimately, the owner.
9. In September and October 2019, Plaintiff disclosed its sub-subcontractors and
suppliers as only Stanwade Metal Products, Alltank Systems, Jones & Frank, and
Davis Pickering Fab, LLC. See Exhibit A-3; Exhibit A-4.
10. By properly disclosing the entities identified in paragraph 9 above, Plaintiff complied
with the statutory and contractual requirements identified in paragraph 7 above.
Marker relies on this disclosure process to ensure it is in compliance on this Project,
as it does on others.
lt. On September 3, 2019, Marker e-mailed Plaintiff informing it that there would be no
further work by other subcontractors in the vicinity of Plaintiff's work, and inquired
as to whether Plaintiff could adjust its timeline. See Exhibit A-5.
12, Marker followed-up on September 13, 2019 requesting confirmation that Plaintiff's
equipment would be delivered on 9/16/19. fa
13. By September 17, 2019, Plaintiffs fuel equipment had still not arrived and Plaintiff
had not responded to the e-mail identified in paragraph 12 above. Jd.
14. On September 20, 2019, the Ohio Department of Commerce, Division of State Fire
Marshall (“Fire Marshal”) approved the Project’s Construction Permit as it related to
the fuel storage tanks in Plaintiff's Scope of Work. See Exhibit A-6.
15. On September 25, 2019, the Fire Marshal conducted a site inspection and pressure
test of the fuel tanks. The inspection resulted in a punch list of items to complete or
remedy on Plaintiff's Scope of Work: (@) electrical; (ii} emergency shut-off-accessible
and visible; (iii) venting; (iv) signage; (v) alarm devices and gauges; (vi) spill
containment-proper material and size at fill station; (vii) condition of hoses; (viii)
grounding and bonding; and (ix) fire extinguisher. See Exhibit A-7.
16. Marker called Plaintiff on October 7, 2019 to determine if Plaintiff would be on-site
that day as other subcontractors on the Project were unable to complete work until
Plaintiff had installed the fuel dispensers on its Scope of Work. Exhibit 4-5.
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17. Having received no response, Marker followed-up on October 8, 2019 reminding
Plaintiff that it had promised completion of its Scope of Work by the end of
September and that if Plaintiff did not respond by the end of the day, Marker would
terminate Plaintiff and mitigate with another subcontractor. id.
18. Later that afternoon, Marker summarized an earlier phone call with Plaintiff as
Plaintiff affirming that it would be coming to the Project site to complete work.
Marker also placed responsibility for costs due to delay on Plaintiff as a result of it
repeatedly failing to show up to the Project site when required and to complete its
Scope of Work in a timely fashion. Jd.
19. Plaintiff responded to the e-mail above on October 8, 2019 stating, “Be aware we de
not need your threats!” and that the Fire Marshal would be on site to inspect the
next day. Jd. (emphasis in original).
20, Following that inspection wherein the fuel tanks passed their pressure test, Marker
e-mailed on October 9, 2019 informing Plaintiff that it had received an equipment
delivery at the Project and inquiring as to when the fuel pumps would be installed.
id.; see also Exhibit A-7 (stating that the punch list items in paragraph 15 above were
still incomplete).
21. Marker e-mailed Plaintiff on October 15, 2019 asking why Plaintiff's equipment had
not yet been installed and when Plaintiff would complete its Scope of Work. See
Exhibit A-8.
22. In an attempt to move along the Project, Marker told Plaintiff, on October 25, 2019,
to have its inspector on site on 10/28/19 for an inspection of its Scope of Work.
Marker followed-up later that day, having not received a response from Plaintiff. See
Exhibit A-9.
23. On Monday, October 28, 2019, Marker finally heard back from Plaintiff who
informed Marker that it didn’t know when its inspector would be on site; Marker
responded that Plaintiff's inspection, the last of the entire Project, was holding up the
Project’s completion. fd.
24, On October 30, 2019, Marker again reached out to Plaintiff inquiring as to an update
as Plaintiff had still not completed its final inspection. fd.
ho
Oh
. On October 31, 2019, Marker again e-mailed Plaintiff stating that (1) Plaintiff had
failed to show up for its final inspection; (1) failed to attend the required owner’s
training meeting; (iii) had not responded to Marker’s 5 e-mails and several calls; and
(iv) that Plaintiff was the “sole cause of every day of delay, which is subject to
$5,000/day liquidated damages.” Id.
26. Later that same day, Marker e-mailed Plaintiff again stating, “Phil, If you don’t
respond by 5:00pm today confirming that you'll be on site tomorrow morning to
complete the work, your subcontract will be terminated and I will have the work
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completed by others. You will be responsible for the cost to have the work completed
as well as all costs for the delay you have caused.” Jd.
27, Marker sent three (3) e-mails to Plaintiff on November 4, 2019 and one (1) on
November 5, 2019 pleading for an update and indicating thai all other final
inspections on the Project were completed by October 2, 2019 with Plaintiff's Scope
of Work still incomplete; Marker reasserted that Plaintiff would be responsible for the
significant costs due to delay and any costs to hire another subcontractor to complete
the Scope of Work. See Exhibit A-10.
28. Plaintiff finally responded on November 6, 2019, providing Marker with a
hand-drawn wiring diagram and telling Marker to have its electrical subcontractor
complete the Scope of Work. Marker responded that it is Plaintiff's Soope of Work to
terminate—or comnect—the electrical wires on the equipment that was part of the
Scope of Work. See Exhibit 4-11.
29, Marker had informed Ohio Department of Transportation that Plaintiff would be on
site on November 6, 2019 to complete its Scope of Work; Plaintiff again failed to
attend. See Exhibit A-12.
30. On November 7, 2019, Marker discovered that Plaintiff had failed to even order all of
the equipment needed for its Scope of Work that should have been completed, at the
latest, by September 30, 2019. Plaintiff was commanded te have its parts ordered and
to complete its Scope of Work. Exhibit A-10.
31. Equipment for the Scope of Work was delivered on November 8, 2019, however,
Plaintiff was unable to be contacted in a timely manner despite Marker’s efforts.
Marker informed Plaintiff that, once again, it had delayed the date for final inspection
of the Project. Jd.
32, On November 11, 2019, Plaintiff made the excuse that it forgot that its crew would
not be working due to Veteran’s Day observance. Marker demanded to know when
Plaintiff's final inspection would be complete. Jd.
33, Plaintiff failed to show up to the Projeci—or even contact Marker---on November 12,
13, or 14th, 2019. Marker e-mailed Plaintiff stating that the additional costs of delay
would continue to be attributed to Plaintiff, in addition to the costs now required, due
to cold weather, to tent and heat the fuel island in order to properly cure a sealing
compound after Plaintiff's work was completed. Jd.
34. By November 15, 2019, Marker had still received no response from Plaintiff. fd.
ad
a
5.On November 18, 2019, Marker learned that Plaintiff had engaged Superior
Petroleum Equipment, LLC (‘Superior’) on November 15 to complete its Scope of
Work on the Project. Superior is not enrolled in the Ohio BWC Drug-Free Workplace
Program. Superior did not complete the required prevailing wage documentation.
Plaintiff did not disclose Superior in accordance with the terms of the Agreement. See
Exhibit A-13; Exhibit A-14.
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36. Due to Plaintiff's breach described in paragraph 35 above, and due to the
accumulating delays and defective work of Plaintiff, Marker informed Plaintiff that it
was being terminated from the Project. 1d; see also Exhibit A-15.
37. In order to mitigate its damages, Marker engaged Advanced Fuel Systems (“AFS”)
on or about November 21, 2019 to complete Plaintifi’s Scope of Work. See Exhibit
A-16.
38. By November 21, 2019, AFS had completed Plaintiff's Scope of Work, coordinated a
final inspection with the Fire Marshal, completed the Fire Marshal’s punch list
identified in paragraph 15 above, and received a passing inspection—thereby
completing the Project. Exhibit A-7.
39. On December 4, 2019, Marker received a Notice of Intent to Lien from Plaintifi’s
counsel due to, what Plaintiff characterized as, unpaid funds for the Project. See
Exhibit A-17.
40. On December 14, 2019, Marker responded that it denied Plaintiffs claims and
characterizations and offered its summary of the events regarding Plaintiff's
performance on the Project. As a result of costs to hire another subcontractor to
complete Plaintiff's work, completing Plaintiff's required close-out documents, and
costs for extended general conditions, Marker had incurred damages, by December
14, 2019, of at least $35,400.00. See Exhibit A-18.
41. Thereafter, Marker was required to pay OFCC $46,778.00 in backcharges due to the
critical path delays on the Project caused by Plaintiff. See Exhibit A-19.
42. Plaintiff initiated the present lawsuit on June 12, 2020.
43. Section G(2) of the Agreement states that Plaintiff “will pay all attorney fees, court
costs and other expenses arising from .. . any injury, loss or damage arising out of the
performance of the work or furnishing of the materials .. . by [Plaintiff].” Exhibit
A-L.
44. To date, Marker has incurred $19,742.53 in attorney fees and court costs.
Further, Affiant saith naught.
STATE OF OHIO, COUNTY OF , SS:
‘The foregoing instrument was acknowledged before me this ___ day of March, 2021, by
Kirk Marker.
otary Public
Page § of §Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790
OF458 - U27
SUBCONTRACT
PINIREAR & AEARAP S
gw § g3R
CommitnantS MeiStIOies Fuel Storage Tenke Beas TROIS
Gebeontreter: ALCTANK Systems Contractor: Thorias & Marker Construction
BO, Bow 2244268 2084 US 68 South PO Box 280
Cleveland, OH 44922 Balifortaine GH 45844-0250
Phone: 218.805.1688 Phone; SI7-SFRTISI
Fax Fen: SSP-SSMETS
Bt; Bhd Havel Yer: Tay Exempt
Emai: phil@adtantaystams.com Forme: Per Attached Tene and Conditions, lose 8%
Project: Roberts Road FMF (MC-18.0120)
4480 Currency Orive
Sodumiass, OM 48228
Santastes
Pragect Manager: Brandon Gohnug at bachnug@themasmerkar.com or 616.892.1348
Project Supetintensent: Ancty Shaw et 287.639.0204
Beanviption:
‘Yo conplats af work 8s noted on the attached Goope of Work and eubject to oi Terns and Conditions,
Por the sum of $87,403,88
Pleags acknowledge, by signature, recsipt of this ofder within 3 days. ff Subceniractor cannet deliver as and When specified advise fully.
Not veld until signed by both parties.
MARKERIININSoagenkiin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790
SCOPE OF WORK
Commitenent # MG-18720140 Fuel Storage Tanks Date: 12/2018
Subcontracter: AdTank Systams
Project: Roberts Road Full Servios Maintenance Facility (FSMF}
4 To furnish ali iabor, material, and equipmant for all work, including, but not limited fo:
Division: _ Procurement and Contracting Requirements
Division: ot General Requirements
Section 6673 Abova-Ground Fuel-Sterage Tanks
in accordance with the Plans dated 03/16/18, Specifications, anc:
Addendum: 001 through 006. scones
Bulletins: 1 through 685.
ASH O04
Accepted Akematea: WA
Exhibits atlached herein
A. Exhibit A- “Prevailing Wage Requirements” package
B. Exhibit B- Project Schedule dated 11/27/78
2 Work adulitlonaily clarified as follows:
A. includes all materials complete as shown or described
8. inciudes aff work on the attached Scops of Work Matrix
2 Submittats Due: JSFA018
Physical Sampies, ff required, Due: within 1 week of product data approvals
4 Project Schedule as noted:
A. Project Start: enn TEZOTE
8. Project Compietion: Gi72018
©. Anticipated Mobilization: a20i8
Work shail be complated in accordance with the attached project schedule and as coordinated by the Thomas & Marker
Construction Co. Project Superintendent. Coordinate work with all other trades through the Thomas & Marker Construction Co.
Superintendent to ensure proper coordination of ail work,
Schedule updates wilf be generated on a monthly basis, at minimum. Acknowledgement of schedule revision must bs recelved
within $8 hours. Failure to respond with ooncemse will consiliute acceptance of the revisions se made.
& Submit all documents as required by the Terms & Gonditions and Supplemental Ganditions of this subcontract, in addition to
the following terns noted below:
> Current W8 Taxpayer identification Number & Certification Forn
> Completed “Designated Project Contact Request” Form
» EXIGE certification, if applicable.
§ Pay Applications, General (aiso refer to Terns & Conditions):
> Penell pay applications including notarized Subcontractor’s Affidavit of Subcontractors and Suppliers are dus to the Project
Manager no ister than close of business on the 2 is day of the month, projecting Gough month's eng, Submit via emall. PM
will reviaw and provide timely notics of approved pencil pay application,
» Final, notarized, pay applications are to be sant via email to the Project Manager and Accounts Payable by the date notad in
the Terma and Conditiens of this subcontract. Notary stamp roust be visible on the ean in order to process.
PM: Accounts Payable: go agimarker.com:
Author: Revised 3.30.16
MARKERSFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790
OF458 - U29
SCOPE OF WORK
Commitment & MG-18720140 Fual Storage Tanks Bate: 28/2018
Subcontractor: AllTank Syaisms
Project: Roberts Road Full Service Maintenance Facility (FMF)
> Special Note: Conditional and unconditional waivers are required at the time of pay application submission and upon reosipt
af payment, respectively. Failure to submit will regull in subcontractors exclusion from the monthly contractor's pay application,
Waivers from secend tier vendors are alsa required.
> Prevailing Wage/Certified payroll reports musi acoompeny all pay application submissions, Failure to submit complete PW
documentation will rasulf in payment delays.
> if billing for sored materials: photographic evidence of the material being claimed, certificate of insurance coverage against
damagafthett, and supply-house invoices must accompany pay application.
? Provide confirmation of material procurement (Le. order confirmations) fo Project Manager.
§ All Closeout documentation (Le. Operation & Maintenance Manuals, Warranties, ete.) shall be subrmilted at 75% of the project
duration for this scope of work. Failure to do go will result in payment delays. Final warranties to be submitted inllawing date of
Substantiat Completion
Author: Revised 3.30.16
MARNE RONGFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790
OF458 - U30 i
TERNS AND CONDITIONS
TEREMAS & MARKER
CORSTRUGTION
Sommer ® MONET Fuel Storage Tanks Bete: ERNES
CONTENTS:
8. GONTRAGT WORK.
4. Allwork perfonned imatedais furnished hereunder by Subsomtractor shall be as an Independent contractar and nel as
an agent of employoe of Contractor.
2. Contract Qocumsnt a prepared by: Jerome Boot Arehieets
§ GENERAL
4, Brovicle Dataull copie pf shap drawings andfor product data ac required for matesial andiar system for
approval Subminels must be sccampanied by the enclaaed Thomas & Marker Gonetruction Ca, tranamittal form,
2. Unies the work sex anpberints ardened herein are manuikzefired fram drawings or complete design dats:
furnished by Contraivel, Subcontractor will defend and indamnify Gontrantar and Contractors customers against
‘ony aed all lates apatlinnitiy fay patent Inftingement renting autely from thelr safe and ane.
& ithe work anc sretegiags ang manulactuned from drawings or design data lumished by Oontracior, Subcontrastar will hold fe
conitdenes the contin! bf such drawings of dsis as well sn sny information relating te the srooensing fanilties
af Contractor's intesdied use which Contactar may give Subsontsstsr,
4, Subsontrectar Wal SS Sound by and comply with the provisions, condtions and requimments of any apptinadls
‘Government law, mS OF Content with eeapect to the menuiantuse andiw sain of fhe Kees ordered
ineluding St nat inhind ts these get eth fh the Subcontrect,
o. SCNEOULE. :
4. TRAE, is agnend jhe time: is ef the easence af this Subcontract and the Suboontractor’s promises t perfonn
within the Smniis aghs tified in the Subcontact, Accordingly, # Subsontmctors parlormance te untineely, 848,
agneed that Conrastas wil have the inllowing rights and remedies which are ewmad te be cumudative to each
thier and! to any athey rights and remecties previdied by faw'to wi,
& Requits Subcontractor te reimburse to the Contractor any and all iquidetedt and/or actual damages evllected
front itd Contraster by the Contractor's oustnmer whieh are atlibutabls te or caused by the Subcantractors’
failuch to meat the apecified delivery dats or dates, and in addition, whether or nat such damages are oe
collageg, regiite Subcantrsctor te pay is the Contractor any and all other additional damages the Cantractor
may Sustain, iributabts te or caused by Suboontracior's failure io meet his abtigations under this Subcontract,
inoksSleg But nat Eavied te, ths cont of impravisations: if the performance of his Werk ahd addiional overhead
and ixponse and equipment rental related to stich detay.
b. Canoe! ai ar any partion of this Subcontract with no Eatility or the pact of the Gonintcter on the oper market
S. which have nat been delivered by the sbectiied date or dates of far which the shop drawings, samaes,
tats have net been received on schedule. Any and all costs to the Centzscior aver and
print enecified in this Subsontract, including the Contractor's administration onats, shall bu mlmbursed
Chntractor by Subsontrestee,
2. OVERTIME. Subyonfracter must place sufficient mechanics on project anevor work owertime shifts as required te meet
Themes & Markes Ganatnstion Co.'s completion schedula, Harmony Clause par Sugplemental Gorditions, Section ©
is pari af this agrierient,
3. PROGRESS SCHEOULE, Gubcnntrsctor shall cooperate fuly with Gontrantors requests in the preparation of the
aohadile and any Sugsequent updates and shall make adlustwents as necessary te comply wih changes
necessarily mass $y Contractar fo the progress saheduls,
D. SAFETY. Subcontractor! at a Subcontmetar, agress to comply wth afl protection of persons and property (estety}
requirements ger Sunple:estal Conditions, Section 8. Subsentractor shall assume fill responeabilty fer any and all
consequences which may ae as 2 result of Subsofractor's faifura te comply with these requirements hereunder, neluding:
but fimited to the acceptases cf fines imposed oh the Cantracto’ and any associated costs or damages. Subosnivactor
represents that the work Quel materiais fe be supplied hereunder shall comply with all applicanle aefety jaws, standards
and regulations, whether Sovermental or indusiviel, in effect on the date of delivery of such werk oy materials or kre
in the industry te become ateative after such date,
EL WAGES, Wages shall by prevailing wage standatd.
F, TAXES, Subcontractor dif gssume aff nasponsibility tat end pay all cates amd use taxes, aise opotpation, fsanse or fanchise
iaNes of fees ated ather thst of every kine applicaite te the performance of thst omer.
4. SALES TAX, Stat? of OM ssles isy is net spgdicable for sinterlats incerporated into this project
G. INSURANCE
MARAENSONISTFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790
OF458 - U31
TERMS AND CONDITIONS
Camanttnsent & wo-agiabieo Fuel Storage Terie Qete: 12/8/2018
4, CERTIFICATE OF INSURANCE Subcentractor must fumish to Contractor cetificates of Insuratios 8 days upon
receipt of Subcontrbe and jefe work commenoss er Supplemental Canditians, Section A.
2. INDEMNITY. 51 rector wall Indemnity and hold Coniniotor anc Owner harmiess from and against aif cima, demands.
and fiabitty, or otheradse, of whatsoever kind or neture for any injury, toss or damage arising aut of
the performance afithe work ar furnishing ofthe matetiais hereunder by Guboontranter and/or by any of ubcontractar’s.
subcontractors, whither occasioned by Sutmanteaciors, Buyer's, Oumer's of any subcontractors negligence, Subcontractor
‘il defend af Subsbnitactor’s ow expense any actions based theteon and will pay all attemey fees, court oosts and
ther expenses ariding there tram.
H, SUBCONTRACTOR PR Contractor shall pay tn Subeontractor, ine the full anc complete performance of the Work,
the Gudcontrast Price asec forth on Suboontract.
3, CHANGES. Contraetor mserves the tight to onfer extra work and materiais hereunder or males changes by
ahering, ackling to dr deducting team the work ane! materiaia with the sum due hereunder to be adjusted
soonedingly. No andre werk or materiats shall be made unless upon wsities order fram the Contractor, Hthe value
af such extra work nr materials shall not be determined in a manner agreeable te both parties at the time of
cider for and approval of such work of materiale, Suboontractar shal nevertheless fumish the work or materials
promplly in accor with Conirecter's witten onder and the value shall be detemnined subsequently in
sputes olsuse of the Contrret Qaoumente,
'S, The tallowing terms of payment ehell apply on all Gontractor’s purchases witheut toss:
theraice aspectally arranged belere acceptance of Contactors order. Subcontractor
mruast haven performet x of fe obligations under the Terms and Conditions, including, without imitation, all administrative
‘Wams and conditieds Reon: Contractor shall be: obligated to make payment te Subsontracioy, if Subcontractor is in default of
any term ot provisign Bf the Guaoomtract Contractor shell not be obligated to make payment to Suboontracter until such
defauit is cured, E
a “APPLECATION FOR PAYMENTS. Contractors Application for Payments wil be submited to the Owner
on the Default day of each month. Payment mequeit data must be fo Thomes & Marker
Construction Gs. iy the Seteult day of exch month, All binge must be braben
sul labor and material par apanifications aantion an AA OFO2/783 formes, Bilings will include work te
the end of the month and be based on the percentage completion sppraved by Gener, Architect and
Contractor for each tine fem on Subcontractors Schedule of Values Subsuntrscior shall furnish with each
Appiigation for Paymeni thelr Subvontractar's Atidav® of Subsontracio: and Supplies. Failure of
Subsontiacter fo comply with date and/or manner of submission of the Application for Payments and
Subsontigctors Affidavit may renal in payment delays.
& RIGHT TO WITHHOLD, Contracter may withhold from curent and future paymants due Subsontrscioy amaunts
Raceway to protect Contractor from defective work of materials not remedied, claims fled of Rked te be
ited, Buboontrastor’s isilure to make payments property to worlanen, to subcontractors of te material men,
doute that the order can be completed for the Balance then unpaid, and/or for the Subcontractors failure te
perform hny of the obligations heraumder. ifthe faregaing causes are removed, the wilhhald payments
ss be plomptly mate, Meaid causes ane nol remewed on vritten notios, Contactar may rectify them at
Suboonttactors expanse. When requited by Centractor, payment as herein provided wil bs made only after the
Suboontiactor suppties Contrantar with 2 statement signed by Contractor's customer that af work has bean
satisfactorily completed. Contractor, at its option, may pey such claims of costa and eredit euch amounts ax if
paid te Subcontractor.
o, Pay ll Bad Reosini of payment by Thomas & Marker Construction Ca. from the Owner for work performed by
Suissontiaator is s condition crecedent te payment by Contactar te Subcontractor for that work,
1 SUB-SUBCONTRACTS, Suteohiractos $s requivad te natily Connecter prior to commencing work, of the names of gud
subcontractors who will fumish labor or materials for any of the work and matetials hereunciar, and Subsantraster tnay not
empiny any te which Gontrador may object, within a ressenatis time, as incompetent or unfit, Ne ferme oF ounditiens
contained herein or work and materials of satvices: performed for Subsontractars ‘by others in canying aut this order shall
qeate any contractial mistion helwnen any subwbeoniractar and Contractor or relieve Subooniractor of respansibility,
After work has commenced, ntracior Wi provide Subsontrasters Aiidavit of Subcontractors and Supplier: with
gaat Apatcation of Paymer
a. LIENS, STOP NOTICES: ANG BOND CLAIMS. & is s condhion ofthis Subsartract that Subcontractor will waive and
retinguish any flen or right ef isn, stop payment nalices and payment bond claims now existing or that hetafier may
afise for the work performed fr materials Aumished hereunder and that paler te receiving payment, Subsontiasier wil exeaute
an indeinnly agreement and hasher of flen an forms atinplied by Contractor, His s futher coraiition of this Subcontract
that, when required by Contractor, prior te recelving payment, Subsentrastar wil tumish Contractor goed and sufficient walver
offen from every pecan, fir: ef comporaton fumishing isbor or matetials under this Subcontract using ferms supplied by
Contractan, may
MARKEROGHNSSSFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790
OF458 - U32
TERNS AND CONDITIONS
: S MARAER
As FAN,
Somedtinant # MOW8120469 Fuel Storage Tanke, Bate: (ARRON
i. WARRANTY, Subso: warrants the work and materials Subcontractor furnishes an this Suboontract to be new, of
and workmanship, in to the specific warranting required by the specifications for the work ang materisis to be
performed, Subsuntractor repair and make good, free of cast te Contractor, any damages ar fault in the work ar matadais
that may sosur during the peliod of ane year {or during a fanger pitied ff required by the specifications, by the face skis hereof
of by the Subcontractor's standard guarantee) from the date of completion of the work and materials and acceptence
fey the cuntorner,
DEFAULTS. Bey one cc ca af the work and material with prompinese or
ce oman asa inte esc
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U10 IN THE COMMON PLEAS COURT OF FRANKLIN COUNTY, OHIO ALLTANK SYSTEMS, INC. CASE No. 20 CV 003790 PLAINTIFF, JUDGE Junie LYNCH v. MARKER, INC. DEPENDANT. DEFENDANT MARKER, INC.’S MOTION FOR SUMMARY JUDGMENT Now comes Defendant Marker, Inc. (“Marker,” formerly Thomas & Marker Construction Company}, by and through undersigned counsel, and hereby respectfully moves this Court for Summary Judgment pursuant to Ohio Civil Rule 56. A memorandum in support of this Motion along with evidentiary materials are provided herein. Respectfully submitted, THOMPSON, DUNLAP & HEYDINGER, LTD, Terrence G. Stolly (#0073266) Hild Rush Ave., P.O. Box 68 Bellefontaine, Ohio 43311-0068 Telephone: 937-593-6065 Facsimile: 937-593-9978 Email: tstolly@tdhlaw.com ATTORNEY FOR MARKER, INC. Page Tofi2Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U11 MEMORANDUM IN SUPPORT. 1. ProcepursL History This action was commenced by Plaintiff Alltank Systems, Inc. (“Plaintiff”) with the filing of Plaintiffs Complaint on Aime 12, 2020. Plaintiffs Complaint asserts four causes of action against Marker, to wit: @) Breach of Contract; (ii) Unjust Enrichment; (iii) Prompt Pay Act Violation; and (iv) Declaratory Judgment Regarding Funds. Marker, in good faith, filed its Answer and Counterclaim on June 25, 2020. Marker’s Counterclaim asserts three compulsory counterclaims against Plaintiff in accordance with Civil Rule 13(A), to wit: @ Breach of Contract; (ii) Failure to Perform in a Workmanlike Manner; and (iii) Material Misrepresentation. Plaintiff served its discovery requests upon Marker on July 7, 2020; Marker responded on August 7, 2020. Marker served its discovery requests upon Plaintiff on July 22, 2020; Plaintiff responded on September 18, 2020. Marker conducted an Ohio Civil Rule 30(B)(5) deposition of Plaintiff's owner, Phil Havel, on or about November 20, 2020. Plaintiff conducted the depositions of Steven Tremper and Danny Berry—employees of Marker—on or about November 20, 2020. On February 9, 2021, this Court granted Plaintiff's Counsel’s Motion to Withdraw. Marker filed its Motion for Partial Summary Judgment on all of Plaintiff's causes of action on March 19, 2021. In the interest of preserving judicial and private economy, Marker now respectiully offers its Motion for Summary Judgment as there are no genuine issues of material facts and Marker is entitled to judgment as a matter of law. Ui. UnpispuTep Facts The Ohio Facilities Construction Commission (COFCC”) is the owner of the Roberts Road Full Service Maintenance Facility public improvements project (the “Project”). Affidavit of Page 2 of 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U12 Kirk Marker (hereinafter Exhibit A). Marker was the general contractor on the Project. Id. Marker and Plaintiff exchanged a signed letter of intent on or about September 13, 2018 memorializing the agreement for Plaintiff to perform the above-ground fuel-storage tanks scope of work (the “Scope of Work’) on the Project; the parties fully executed their subcontract on or about October 15, 2019 (the “Agreement”}. Jd. The initial Project completion date was June 27, 2019. id, RC, § 153.03 requires contractors and their subcontractors on a public improvement contract, to participate in the Ohio BWC Drug-Free Workplace Program. Paragraph 6 of the Scope of Work to the Agreement states that “[flailure to complete [Prevailing Wage] documentation will result in payment delays.” id. Furthermore, Plaintiff was required, under Section I of the Agreement’s Terms and Conditions, to notify Marker “of the names of sub-subcontractors who will furnish labor or materials’ on the Project, and that each sub-subcontractor and material supplier were also bounds by the terms above. Jd. Section G(2) of the Agreement states that Plaintiff “will pay all attorney fees, court costs and other expenses arising from . . . any injury, loss or damage arising out of the performance of the work or furnishing of the materials .. . by [Plaintiff].”” Jd. Section H(2)(b) of the Agreement provides Marker the right to withhold current and future payments due to Plaintiff that are necessary to protect Marker from defective work or materials of Plaintiff that are not remedied, and from claims filed or likely to be filed as a result of the aforementioned defects. id. Section C, titled “Harmony Clause,” is the Agreement’s supplemental conditions of contract wherein it states: “Should [Plaintiff] at any time neglect to supply a sufficient number of properly skilled workmen or fail in any respect to prosecute the work with promptness and Page 3 of 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U13 diligence .. . [Marker] may, without prejudice to any other right or remedy, by written notice terminate the [Agreement] for the said work and employ any other person or persons to finish the work,” and Plaintiff must pay Marker for the costs to finish the Scope of Work. Id. Marker exercised its contractual rights prudently and justifiably. On September 23, 2019, Plaintiff supplied its Affidavit of Subcontractors and Suppliers to Marker, disclosing onfy Stanwade Metal Products and Alltank Systems. Jd. On October 15, 2019, Plaintiff supplied its Subcontractor and Material Supplier Declaration to Marker, disclosing Jones & Frank and Davis Pickering Fab, LLC as its only subcontractors and material suppliers. /d. For these four sub-subcontractors and material suppliers, Plaintiff complied with the terms of the Agreement by ensuring each participated in the Ohio BWC Drug-Free Workplace Program and that each provided prevailing wage documentation. /d. However, on November 15, 2019, Plaintiff engaged Superior Petroleum Equipment, LLC (‘Superior’) as an additional sub-subcontractor. Id, Plaintiff did not certify that Superior participated in the Ohio BWC Drug-Free Workplace Program as required by the terms of the Agreement and R.C. § 153.03. id. Neither did Plaintiff provide Superior’s prevailing wage documentation which was also required by the terms of the Agreement. fd. Marker concedes that Plaintiff supplied some materials and labor to the Project. id. However, during the course of the Project, Plaintiff () failed to timely order and deliver materials to the Project, (ii) failed to properly and timely staff the Project site, (iii) failed to schedule required inspections, (iv) failed to cure defective work, (v) failed to disclose its sub-subcontractor, Superior, to Marker, and (vi) failed to perform its contractual obligations under the Agreement; all of which caused significant critical path delays. Jd. Despite being given Page 4 of 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U14 opportunities to correct its deficiencies, Plaintiff failed to remedy those defects or complete its Scope of Work. fd. Marker mitigaied its damages and obligations to OFCC by terminating Plaintiff and performing, through it and its subcontractors, the remedial work necessary to correct and complete Plaintiff's Scope of Work at its own costs—an amount of af least $35,400.00. Id. Additionally, as a direct result of the critical path delays caused by Plaintiff and its defective and uncompleted work, Marker was forced to pay damages to OFCC in the amount of $46,778.00. id. Marker has incurred substantial costs to remedy Plaintiff's defective workmanship and complete its scope of work in addition to the costs for extended general conditions and the damages it paid to OFCC. Jd. Marker has also incurred damages, to date, amounting to $19,742.53 in attorney fees and court costs as a direct result of Plaintiffs defective and uncompleted work. Jd. TIL STANDARD FOR SUMMARY JUDGMENT Summary judgment is a procedural device designed to dispose expeditiously and economically of legal claims for which there is no factual foundation. Cefotex Corp. v. Catreit, 477 US. 317, 327, 106 S.Ct. 2547 (1986). The United States Supreme Court characterizes the function of summary judgment as follows: [s]ummary judgment is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the [Civil] Rules as a whole, which are designed to iu secure the just, speedy and inexpensive determination of every action. The Ohio Supreme Court endorses this view, as well. North v. Pennsylvania RR. Co., 9 Ohio St. 2d 169, 171, 224 NE. 2d 757 (1967). ‘The propriety of rendering summary judgment hinges upon the tripartite demonstration thai (1) there is no genuine issue as to any material facts; (2) the moving party is entitled to Page 5 of 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U15 judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978); Civ. R. 56(C). Yo make this showing, the initial burden lies with the movant to inform the Court of the basis for the motion and identify those portions of the record, including pleadings, depositions, answers to interrogatories, written admissions, and affidavits that demonstrate the absence of genuine issue of material fact on the essential element(s) of the nonmoving party’s claims. Civ. R. 56(C); Dresher v. Burt, 75 Obio St.3d 280, 293, 662 N.E.2d 264 (1996). Upon making such a showing, the burden shifts to the nonmoving party to show that an issue of fact does exisi, or that the law does not support a finding in favor of the movant. Dresher, 75 Ohio St.3d at 293. While a motion for summary judgment must be supported with specific evidence, the nommoving party bears a reciprocal burden of specificity. Under Rule 56(E), “[wihen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but fits] response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” In view of this requirement, the party must present some evidence in support of the claims the party must substantiate at trial. See Jackson v, Alert Fire & Safety Equip., Inc., 58 Ohio St.3d 48, 51, 567 N.E.2d 1027 (1991); Pauéd v. Uniroyal Plastics Co., Inc., 62 Obio App.3d 277, 281, 575 N.E.2d 484 (6th Dist.1988). Page 6 of 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U16 TV. Law Anp ARGUMENT Marker’s First Cause of Action for Breach of Contract should be resolved in Marker’s faver because {i} Plaintiff failed te perform its contractual obligations in accordance with the terms of the Agreement; (i) the work that Plaintiff did do was deficient and failed necessary inspections; and (ili) Marker was damaged when it had to correct and complete Plaintiff's scope of work at additional cost. The essential elements for a Breach of Contract claim are (1) the existence of a valid contract; (2) performance on the contract by one party; (3) a failure of the other party to perform its contractual obligations; and (4) damages as a result of the breaching party’s failare to perform its contractual obligations. Jarupan v. Hanna, 173 Ohio App.3d 284, 2007-Ohio-S08; see also, Prime Props., Lid. Partnership v. Badah Ents., 8th Dist. Cuyahoga No. 99827, 2014-Ohio-206. Marker and Plaintiff entered into a valid Agreement. Exhibit A. Plaintiff breached its obligations under the Agreement by failing to perform its Scope of Work in a timely and workunanlike manner resulting in numerous deficiencies, delays, and defective work. Jd. Despite being given opportunities to correct its deficiencies, Plaintiff failed to remedy those defects or complete its Scope of Work. Jd Marker mitigated its damages and obligations to OFCC by performing, through it and its subcontractors, the remedial work necessary to correct and complete Plaintiff's Scope of Work. fa. Marker was forced to pay damages to OFCC as a direct result of Plaintiff's defective and uncompleted work causing critical path delays in the entire Project. dd Marker has incurred substantial costs to remedy Plaintiff's defective workmanship and complete its Scope of Work in addition to the costs for extended general conditions and the damages it paid to OFCC. Id. Plaintiff also breached the Agreement by engaging its sub-subcontractor, Superior, without disclosing that sub-subcontracior to Marker as required by the terms of the Agreement. id. Superior did not complete the required prevailing wage documentation, nor was it enrolled in Page 7 of 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U17 the Ohio BWC Drug-Free Workplace Program. Jd. Both of these instances of conduct constitute breach of the terms of the Agreement. Marker has a right ander the terms of the Agreement to withhold current and future payments due to Plaintiff that are necessary to protect Marker from defective work or materials of Plaintiff that are not remedied, and claims filed or likely to be filed as a result of the aforementioned defects. fd. Marker is also entitled to have its attomey fees and court costs paid by Plaintiff. dé, Marker exercised its rights prudently and justifiably. As a result of the aforementioned, there are no genuine issues as to any material fact involving the allegations of breach of contract and Marker is, therefore, entitled to judgment as a matter of law as to Marker’s First Cause of Action, Marker’s Second Cause of Action for Failure to Perform in a Workmanlike Manner should be resolved in Marker’s favor because Plaintiffs work was deficient and failed necessary inspections. The duty to perform in a workmanlike manner arises from the contractual relationship of the parties; a breach of that duty supports Marker’s Second Cause of Action. Kishmarton v. Willaim Bailey Constr., inc., 93 Ohio S$t.3d 226, 228-29, 754 N.E.2d 785 (2001) (stating the “contract governs the warranty of good workmanship; therefore, the warranty of good workmanship arises from the contract. It can hardly be otherwise.”); see alsa, ¢.g., Vanderschrier vy. 4aron, 103 Ohio App. 340, 140 N.E.2d 819 (8th Dist. 1957): Lloyd v. William Fannin Bldrs., Jnc., 40 Ohio App.2d 507, 516, 320 N.E.2d 738 COth Dist. 1973); Tibbs v. Nat'l Homes Constr. Corp., 52 Ohio App.2d 281, 292-93, 369 N.B.2d 1218 (ist Dist. 1977); Barton v. Ellis, 34 Ohio App.3d 251, 252-53, 518 N.E.2d 18 (10th Dist. 1986). Page 8 of 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U18 The above-cited cases, and the hundreds more like them, establish that a party can—and usually does—maintain and prevail on both a breach of contract claim and a failure to perform in a workmanlike manner claim. Plaintiff and Marker entered into a valid Agreement. Exhibit A, By the terms of that Agreement and Ohio law, both an implied warranty of good workmanship and an express contractual warranty were imposed on Plaintiff. fd. Plaintiff breached those warranties when it (i) failed to timely order and deliver materials to the Project, (i) failed to properly and timely staff the Project site, (ili) failed to schedule required inspections, {iv} failed to cure defective work, (v)} failed to report its sub-subcontractor, Superior, to Marker, and (vi) failed to perform its contractual obligations under the Agreement, id. As a result of Plaintiff's repeated failures, Marker terminated Plaintiff and mitigated its damages and obligations to OFCC by correcting Plaintiff's defective work and completing Plaintiff's Scope of Work at its own costs. Jd. As a result of the aforementioned, there are no genuine issues as to any material fact involving the failure to perform in a workmanlike manner and Marker is, therefore, entitled to judgment as a matter of law as to Marker’s Second Cause of Action. Marker’s Third Cause of Action for Material Misrepresentation should be resolved in Marker’s favor because Plaintiff used an undisclosed subcontractor on the Project that did not satisfy contractual requirements. In order to establish a claim of material or fraudulent misrepresentation, Marker must show that (1) Plaintiff represented, or where there is a duty to disclose, concealed a fact, (2) which is material to the Agreement, (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (4) with the intent of misleading Marker into relying on it, (5) justifiable reliance upon the Page 8 of 32Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U19 representation or concealment, and (6) a resulting injury proximately caused by the reliance. Buchanan v. Improved Properties, LLC, 7 N.£.3d 634, 2014-Ohio-263, 4 14 Gd Dist.) (citing Cardi v, Gump, 121 Ohio App.34 16, 698 N.E.2d 1018 (8th Dist. 1997)). The Project required that all subcontractors and material suppliers be properly disclosed and that those identified subcontractors and material suppliers submitted prevailing wage documentation and participated in the Ohio BWC Drug-Free Workplace Program. Exhibit A. These requirements were imposed on Plaintiff by the terms of the Agreement. Jd. On September 23, 2019, Plaintiff supplied its Affidavit of Subcontractors and Suppliers to Marker, disclosing only Stanwade Metal Products and Alltank Systems. /d. On October 15, 2019, Plaintiff supplied its Subcontractor and Material Supplier Declaration to Marker, disclosing Jones & Frank and Davis Pickering Fab, LLC as its only subcontractors and material suppliers. id. Plaintiff complied with the terms of the Agreement for the identified sub-subcontractors and material suppliers by ensuring each participated in the Ohio BWC Drug-Free Workplace Program and that each provided prevailing wage documentation. id. However, on November 15, 2019, Plaintiff engaged Superior as an additional sub-subcontractor. fd. Plaintiff did not certify that Superior participated in the Ohio BWC Drug-Free Workplace Program as required by the terms of the Agreement. /d. Neither did Plaintiff provide Superior’s prevailing wage documentation which were also required by the terms of the Agreement. Jd. At all times, Plaintiff was aware of its contractual obligations to provide such information and to appropriately disclose its sub-subcontractors and material suppliers, and to supplement the same upon engaging new entities. Plaintiff knowingly failed to appropriately disclose Superior as its sub-subcontractor to Marker as it had in September and October 2019 with its other Page 10 of 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U20 sub-subcontractors and suppliers. Plaintiff's actions were undertaken with the intent to mislead Marker into believing that Plaintiff was conforming to the requirements of the Agreement. Marker justifiably relied on Plaintiff's September and October 2019 disclosures of its sub-subcontractors and suppliers. /d When Marker learned that Plaintiff had engaged an undisclosed, nonconforming sub-subcontractor—Superior—for work on the Project, Marker was forced to terminate the Agreement with Plaintiff, correct Plaintiff's defective work, and complete Plaintiff's Scope of Work at its own costs. fd. As a result of the aforementioned, there are no genuine issues as to any material fact involving material misrepresentation and Marker is, therefore, entitled to judgment as a matter of law as to Marker’s Third Cause of Action. ¥. CONCLUSION There are no genuine issues of material fact; based on the standards set forth in Rule 56(C), Marker is entitled to judgment as a matter of law on all of its causes of action. Marker is, additionally, entitled to judgment in the amount of $19,742.53 for its attorney fees, court costs and other expenses arising out of Plaintiff's defective and incomplete work on the Project, Marker, therefore, respectfully requests that this Court grant its Motion for Summary Judgment. Respectfully submitted, THOMPSON, DUNLAP & HEYDINGER, LTD. OAs, T111 Rush Ave., P.G. Box 68 Bellefontaine, Ohio 43311-0068 Telephone: 937-593-6065 Facsimile: 937-593-9978 Email: tstolly@tdhlaw.com ATTORNEY FOR MARKER, INC. Page 11 of 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U21 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was served upon the following via email this &s-day of April, 2021: Jameson K. George The Law Office of Wright & Associates, LLC 175 S. Third St, Ste. 200 Columbus, OH 43215 jameson@wright-lic.com Attorney for Plaintiff Page 12 of 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U22 ] WWW IN THE COMMON PLEAS COURT OF FRANKLIN COUNTY, OHIO ALLTANK SYSTEMS, INC. CASE No. 20 CV 003790 PLAINTIFF, Vv. JUDGE JULIE LYNCH MARKER, INC. DEFENDANT. AFFID STATE OF OHIO } )88: COUNTY OF LOGAN ) Now comes Kirk Marker, who after first being duly cautioned and swom, according to law, deposes and says as follows: 1 we iam over the age of eighteen (18) and have personal knowledge of all facts set forth herein. . Lam General Counsel for Marker, Inc. (“Marker”). The Ohio Facilities Construction Commission (‘OFCC”) is the owner of the Roberts Road Full Service Maintenance Facility public improvements project (the “Project”}. See Exhibit A-1. Marker was the general contractor on the Project. Plaintiff Altank Systems, Inc. (“Plaintiff”) and Marker exchanged a signed letter of intent on or about September 13, 2018 memorializing the agreement for Plaintiff to perform the above-ground fuel-storage tanks scope of work (the “Scope of Work”) on the Project; the parties fully executed their subcontract on or about October 15, 2019 (the “Agreement”). The original scheduled completion date of the Project was June 27, 2019. See Exhibit A-2. Page 1 of §Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U23 6. Plaintiffs Scope of Work—generally, the procurement and installation of gasoline and diesel fuel tanks, pumps, fuel lines, sensors, and the system’s related electrical components—was critical to the Project. 7. Contractors and their subcontractors are required to be enrolled in the Ohio BWC Drug-Free Workplace Program pursuant to RC § 153.03. Additionally, subcontractors are required to provide prevailing wage documentation for their sub-subcontractors and suppliers. 8. In order to ensure that all subcontractors, sub-subcontractors, and suppliers are in compliance with these requirements, and others, these entities are required to be fully disclosed to the general contractor and, ultimately, the owner. 9. In September and October 2019, Plaintiff disclosed its sub-subcontractors and suppliers as only Stanwade Metal Products, Alltank Systems, Jones & Frank, and Davis Pickering Fab, LLC. See Exhibit A-3; Exhibit A-4. 10. By properly disclosing the entities identified in paragraph 9 above, Plaintiff complied with the statutory and contractual requirements identified in paragraph 7 above. Marker relies on this disclosure process to ensure it is in compliance on this Project, as it does on others. lt. On September 3, 2019, Marker e-mailed Plaintiff informing it that there would be no further work by other subcontractors in the vicinity of Plaintiff's work, and inquired as to whether Plaintiff could adjust its timeline. See Exhibit A-5. 12, Marker followed-up on September 13, 2019 requesting confirmation that Plaintiff's equipment would be delivered on 9/16/19. fa 13. By September 17, 2019, Plaintiffs fuel equipment had still not arrived and Plaintiff had not responded to the e-mail identified in paragraph 12 above. Jd. 14. On September 20, 2019, the Ohio Department of Commerce, Division of State Fire Marshall (“Fire Marshal”) approved the Project’s Construction Permit as it related to the fuel storage tanks in Plaintiff's Scope of Work. See Exhibit A-6. 15. On September 25, 2019, the Fire Marshal conducted a site inspection and pressure test of the fuel tanks. The inspection resulted in a punch list of items to complete or remedy on Plaintiff's Scope of Work: (@) electrical; (ii} emergency shut-off-accessible and visible; (iii) venting; (iv) signage; (v) alarm devices and gauges; (vi) spill containment-proper material and size at fill station; (vii) condition of hoses; (viii) grounding and bonding; and (ix) fire extinguisher. See Exhibit A-7. 16. Marker called Plaintiff on October 7, 2019 to determine if Plaintiff would be on-site that day as other subcontractors on the Project were unable to complete work until Plaintiff had installed the fuel dispensers on its Scope of Work. Exhibit 4-5. Page 2 of §Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U24 17. Having received no response, Marker followed-up on October 8, 2019 reminding Plaintiff that it had promised completion of its Scope of Work by the end of September and that if Plaintiff did not respond by the end of the day, Marker would terminate Plaintiff and mitigate with another subcontractor. id. 18. Later that afternoon, Marker summarized an earlier phone call with Plaintiff as Plaintiff affirming that it would be coming to the Project site to complete work. Marker also placed responsibility for costs due to delay on Plaintiff as a result of it repeatedly failing to show up to the Project site when required and to complete its Scope of Work in a timely fashion. Jd. 19. Plaintiff responded to the e-mail above on October 8, 2019 stating, “Be aware we de not need your threats!” and that the Fire Marshal would be on site to inspect the next day. Jd. (emphasis in original). 20, Following that inspection wherein the fuel tanks passed their pressure test, Marker e-mailed on October 9, 2019 informing Plaintiff that it had received an equipment delivery at the Project and inquiring as to when the fuel pumps would be installed. id.; see also Exhibit A-7 (stating that the punch list items in paragraph 15 above were still incomplete). 21. Marker e-mailed Plaintiff on October 15, 2019 asking why Plaintiff's equipment had not yet been installed and when Plaintiff would complete its Scope of Work. See Exhibit A-8. 22. In an attempt to move along the Project, Marker told Plaintiff, on October 25, 2019, to have its inspector on site on 10/28/19 for an inspection of its Scope of Work. Marker followed-up later that day, having not received a response from Plaintiff. See Exhibit A-9. 23. On Monday, October 28, 2019, Marker finally heard back from Plaintiff who informed Marker that it didn’t know when its inspector would be on site; Marker responded that Plaintiff's inspection, the last of the entire Project, was holding up the Project’s completion. fd. 24, On October 30, 2019, Marker again reached out to Plaintiff inquiring as to an update as Plaintiff had still not completed its final inspection. fd. ho Oh . On October 31, 2019, Marker again e-mailed Plaintiff stating that (1) Plaintiff had failed to show up for its final inspection; (1) failed to attend the required owner’s training meeting; (iii) had not responded to Marker’s 5 e-mails and several calls; and (iv) that Plaintiff was the “sole cause of every day of delay, which is subject to $5,000/day liquidated damages.” Id. 26. Later that same day, Marker e-mailed Plaintiff again stating, “Phil, If you don’t respond by 5:00pm today confirming that you'll be on site tomorrow morning to complete the work, your subcontract will be terminated and I will have the work Page 3 of 5Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U25 completed by others. You will be responsible for the cost to have the work completed as well as all costs for the delay you have caused.” Jd. 27, Marker sent three (3) e-mails to Plaintiff on November 4, 2019 and one (1) on November 5, 2019 pleading for an update and indicating thai all other final inspections on the Project were completed by October 2, 2019 with Plaintiff's Scope of Work still incomplete; Marker reasserted that Plaintiff would be responsible for the significant costs due to delay and any costs to hire another subcontractor to complete the Scope of Work. See Exhibit A-10. 28. Plaintiff finally responded on November 6, 2019, providing Marker with a hand-drawn wiring diagram and telling Marker to have its electrical subcontractor complete the Scope of Work. Marker responded that it is Plaintiff's Soope of Work to terminate—or comnect—the electrical wires on the equipment that was part of the Scope of Work. See Exhibit 4-11. 29, Marker had informed Ohio Department of Transportation that Plaintiff would be on site on November 6, 2019 to complete its Scope of Work; Plaintiff again failed to attend. See Exhibit A-12. 30. On November 7, 2019, Marker discovered that Plaintiff had failed to even order all of the equipment needed for its Scope of Work that should have been completed, at the latest, by September 30, 2019. Plaintiff was commanded te have its parts ordered and to complete its Scope of Work. Exhibit A-10. 31. Equipment for the Scope of Work was delivered on November 8, 2019, however, Plaintiff was unable to be contacted in a timely manner despite Marker’s efforts. Marker informed Plaintiff that, once again, it had delayed the date for final inspection of the Project. Jd. 32, On November 11, 2019, Plaintiff made the excuse that it forgot that its crew would not be working due to Veteran’s Day observance. Marker demanded to know when Plaintiff's final inspection would be complete. Jd. 33, Plaintiff failed to show up to the Projeci—or even contact Marker---on November 12, 13, or 14th, 2019. Marker e-mailed Plaintiff stating that the additional costs of delay would continue to be attributed to Plaintiff, in addition to the costs now required, due to cold weather, to tent and heat the fuel island in order to properly cure a sealing compound after Plaintiff's work was completed. Jd. 34. By November 15, 2019, Marker had still received no response from Plaintiff. fd. ad a 5.On November 18, 2019, Marker learned that Plaintiff had engaged Superior Petroleum Equipment, LLC (‘Superior’) on November 15 to complete its Scope of Work on the Project. Superior is not enrolled in the Ohio BWC Drug-Free Workplace Program. Superior did not complete the required prevailing wage documentation. Plaintiff did not disclose Superior in accordance with the terms of the Agreement. See Exhibit A-13; Exhibit A-14. Page 4 of SFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U26 36. Due to Plaintiff's breach described in paragraph 35 above, and due to the accumulating delays and defective work of Plaintiff, Marker informed Plaintiff that it was being terminated from the Project. 1d; see also Exhibit A-15. 37. In order to mitigate its damages, Marker engaged Advanced Fuel Systems (“AFS”) on or about November 21, 2019 to complete Plaintifi’s Scope of Work. See Exhibit A-16. 38. By November 21, 2019, AFS had completed Plaintiff's Scope of Work, coordinated a final inspection with the Fire Marshal, completed the Fire Marshal’s punch list identified in paragraph 15 above, and received a passing inspection—thereby completing the Project. Exhibit A-7. 39. On December 4, 2019, Marker received a Notice of Intent to Lien from Plaintifi’s counsel due to, what Plaintiff characterized as, unpaid funds for the Project. See Exhibit A-17. 40. On December 14, 2019, Marker responded that it denied Plaintiffs claims and characterizations and offered its summary of the events regarding Plaintiff's performance on the Project. As a result of costs to hire another subcontractor to complete Plaintiff's work, completing Plaintiff's required close-out documents, and costs for extended general conditions, Marker had incurred damages, by December 14, 2019, of at least $35,400.00. See Exhibit A-18. 41. Thereafter, Marker was required to pay OFCC $46,778.00 in backcharges due to the critical path delays on the Project caused by Plaintiff. See Exhibit A-19. 42. Plaintiff initiated the present lawsuit on June 12, 2020. 43. Section G(2) of the Agreement states that Plaintiff “will pay all attorney fees, court costs and other expenses arising from .. . any injury, loss or damage arising out of the performance of the work or furnishing of the materials .. . by [Plaintiff].” Exhibit A-L. 44. To date, Marker has incurred $19,742.53 in attorney fees and court costs. Further, Affiant saith naught. STATE OF OHIO, COUNTY OF , SS: ‘The foregoing instrument was acknowledged before me this ___ day of March, 2021, by Kirk Marker. otary Public Page § of §Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U27 SUBCONTRACT PINIREAR & AEARAP S gw § g3R CommitnantS MeiStIOies Fuel Storage Tenke Beas TROIS Gebeontreter: ALCTANK Systems Contractor: Thorias & Marker Construction BO, Bow 2244268 2084 US 68 South PO Box 280 Cleveland, OH 44922 Balifortaine GH 45844-0250 Phone: 218.805.1688 Phone; SI7-SFRTISI Fax Fen: SSP-SSMETS Bt; Bhd Havel Yer: Tay Exempt Emai: phil@adtantaystams.com Forme: Per Attached Tene and Conditions, lose 8% Project: Roberts Road FMF (MC-18.0120) 4480 Currency Orive Sodumiass, OM 48228 Santastes Pragect Manager: Brandon Gohnug at bachnug@themasmerkar.com or 616.892.1348 Project Supetintensent: Ancty Shaw et 287.639.0204 Beanviption: ‘Yo conplats af work 8s noted on the attached Goope of Work and eubject to oi Terns and Conditions, Por the sum of $87,403,88 Pleags acknowledge, by signature, recsipt of this ofder within 3 days. ff Subceniractor cannet deliver as and When specified advise fully. Not veld until signed by both parties. MARKERIININSoagenkiin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 SCOPE OF WORK Commitenent # MG-18720140 Fuel Storage Tanks Date: 12/2018 Subcontracter: AdTank Systams Project: Roberts Road Full Servios Maintenance Facility (FSMF} 4 To furnish ali iabor, material, and equipmant for all work, including, but not limited fo: Division: _ Procurement and Contracting Requirements Division: ot General Requirements Section 6673 Abova-Ground Fuel-Sterage Tanks in accordance with the Plans dated 03/16/18, Specifications, anc: Addendum: 001 through 006. scones Bulletins: 1 through 685. ASH O04 Accepted Akematea: WA Exhibits atlached herein A. Exhibit A- “Prevailing Wage Requirements” package B. Exhibit B- Project Schedule dated 11/27/78 2 Work adulitlonaily clarified as follows: A. includes all materials complete as shown or described 8. inciudes aff work on the attached Scops of Work Matrix 2 Submittats Due: JSFA018 Physical Sampies, ff required, Due: within 1 week of product data approvals 4 Project Schedule as noted: A. Project Start: enn TEZOTE 8. Project Compietion: Gi72018 ©. Anticipated Mobilization: a20i8 Work shail be complated in accordance with the attached project schedule and as coordinated by the Thomas & Marker Construction Co. Project Superintendent. Coordinate work with all other trades through the Thomas & Marker Construction Co. Superintendent to ensure proper coordination of ail work, Schedule updates wilf be generated on a monthly basis, at minimum. Acknowledgement of schedule revision must bs recelved within $8 hours. Failure to respond with ooncemse will consiliute acceptance of the revisions se made. & Submit all documents as required by the Terms & Gonditions and Supplemental Ganditions of this subcontract, in addition to the following terns noted below: > Current W8 Taxpayer identification Number & Certification Forn > Completed “Designated Project Contact Request” Form » EXIGE certification, if applicable. § Pay Applications, General (aiso refer to Terns & Conditions): > Penell pay applications including notarized Subcontractor’s Affidavit of Subcontractors and Suppliers are dus to the Project Manager no ister than close of business on the 2 is day of the month, projecting Gough month's eng, Submit via emall. PM will reviaw and provide timely notics of approved pencil pay application, » Final, notarized, pay applications are to be sant via email to the Project Manager and Accounts Payable by the date notad in the Terma and Conditiens of this subcontract. Notary stamp roust be visible on the ean in order to process. PM: Accounts Payable: go agimarker.com: Author: Revised 3.30.16 MARKERSFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U29 SCOPE OF WORK Commitment & MG-18720140 Fual Storage Tanks Bate: 28/2018 Subcontractor: AllTank Syaisms Project: Roberts Road Full Service Maintenance Facility (FMF) > Special Note: Conditional and unconditional waivers are required at the time of pay application submission and upon reosipt af payment, respectively. Failure to submit will regull in subcontractors exclusion from the monthly contractor's pay application, Waivers from secend tier vendors are alsa required. > Prevailing Wage/Certified payroll reports musi acoompeny all pay application submissions, Failure to submit complete PW documentation will rasulf in payment delays. > if billing for sored materials: photographic evidence of the material being claimed, certificate of insurance coverage against damagafthett, and supply-house invoices must accompany pay application. ? Provide confirmation of material procurement (Le. order confirmations) fo Project Manager. § All Closeout documentation (Le. Operation & Maintenance Manuals, Warranties, ete.) shall be subrmilted at 75% of the project duration for this scope of work. Failure to do go will result in payment delays. Final warranties to be submitted inllawing date of Substantiat Completion Author: Revised 3.30.16 MARNE RONGFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U30 i TERNS AND CONDITIONS TEREMAS & MARKER CORSTRUGTION Sommer ® MONET Fuel Storage Tanks Bete: ERNES CONTENTS: 8. GONTRAGT WORK. 4. Allwork perfonned imatedais furnished hereunder by Subsomtractor shall be as an Independent contractar and nel as an agent of employoe of Contractor. 2. Contract Qocumsnt a prepared by: Jerome Boot Arehieets § GENERAL 4, Brovicle Dataull copie pf shap drawings andfor product data ac required for matesial andiar system for approval Subminels must be sccampanied by the enclaaed Thomas & Marker Gonetruction Ca, tranamittal form, 2. Unies the work sex anpberints ardened herein are manuikzefired fram drawings or complete design dats: furnished by Contraivel, Subcontractor will defend and indamnify Gontrantar and Contractors customers against ‘ony aed all lates apatlinnitiy fay patent Inftingement renting autely from thelr safe and ane. & ithe work anc sretegiags ang manulactuned from drawings or design data lumished by Oontracior, Subcontrastar will hold fe conitdenes the contin! bf such drawings of dsis as well sn sny information relating te the srooensing fanilties af Contractor's intesdied use which Contactar may give Subsontsstsr, 4, Subsontrectar Wal SS Sound by and comply with the provisions, condtions and requimments of any apptinadls ‘Government law, mS OF Content with eeapect to the menuiantuse andiw sain of fhe Kees ordered ineluding St nat inhind ts these get eth fh the Subcontrect, o. SCNEOULE. : 4. TRAE, is agnend jhe time: is ef the easence af this Subcontract and the Suboontractor’s promises t perfonn within the Smniis aghs tified in the Subcontact, Accordingly, # Subsontmctors parlormance te untineely, 848, agneed that Conrastas wil have the inllowing rights and remedies which are ewmad te be cumudative to each thier and! to any athey rights and remecties previdied by faw'to wi, & Requits Subcontractor te reimburse to the Contractor any and all iquidetedt and/or actual damages evllected front itd Contraster by the Contractor's oustnmer whieh are atlibutabls te or caused by the Subcantractors’ failuch to meat the apecified delivery dats or dates, and in addition, whether or nat such damages are oe collageg, regiite Subcantrsctor te pay is the Contractor any and all other additional damages the Cantractor may Sustain, iributabts te or caused by Suboontracior's failure io meet his abtigations under this Subcontract, inoksSleg But nat Eavied te, ths cont of impravisations: if the performance of his Werk ahd addiional overhead and ixponse and equipment rental related to stich detay. b. Canoe! ai ar any partion of this Subcontract with no Eatility or the pact of the Gonintcter on the oper market S. which have nat been delivered by the sbectiied date or dates of far which the shop drawings, samaes, tats have net been received on schedule. Any and all costs to the Centzscior aver and print enecified in this Subsontract, including the Contractor's administration onats, shall bu mlmbursed Chntractor by Subsontrestee, 2. OVERTIME. Subyonfracter must place sufficient mechanics on project anevor work owertime shifts as required te meet Themes & Markes Ganatnstion Co.'s completion schedula, Harmony Clause par Sugplemental Gorditions, Section © is pari af this agrierient, 3. PROGRESS SCHEOULE, Gubcnntrsctor shall cooperate fuly with Gontrantors requests in the preparation of the aohadile and any Sugsequent updates and shall make adlustwents as necessary te comply wih changes necessarily mass $y Contractar fo the progress saheduls, D. SAFETY. Subcontractor! at a Subcontmetar, agress to comply wth afl protection of persons and property (estety} requirements ger Sunple:estal Conditions, Section 8. Subsentractor shall assume fill responeabilty fer any and all consequences which may ae as 2 result of Subsofractor's faifura te comply with these requirements hereunder, neluding: but fimited to the acceptases cf fines imposed oh the Cantracto’ and any associated costs or damages. Subosnivactor represents that the work Quel materiais fe be supplied hereunder shall comply with all applicanle aefety jaws, standards and regulations, whether Sovermental or indusiviel, in effect on the date of delivery of such werk oy materials or kre in the industry te become ateative after such date, EL WAGES, Wages shall by prevailing wage standatd. F, TAXES, Subcontractor dif gssume aff nasponsibility tat end pay all cates amd use taxes, aise opotpation, fsanse or fanchise iaNes of fees ated ather thst of every kine applicaite te the performance of thst omer. 4. SALES TAX, Stat? of OM ssles isy is net spgdicable for sinterlats incerporated into this project G. INSURANCE MARAENSONISTFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U31 TERMS AND CONDITIONS Camanttnsent & wo-agiabieo Fuel Storage Terie Qete: 12/8/2018 4, CERTIFICATE OF INSURANCE Subcentractor must fumish to Contractor cetificates of Insuratios 8 days upon receipt of Subcontrbe and jefe work commenoss er Supplemental Canditians, Section A. 2. INDEMNITY. 51 rector wall Indemnity and hold Coniniotor anc Owner harmiess from and against aif cima, demands. and fiabitty, or otheradse, of whatsoever kind or neture for any injury, toss or damage arising aut of the performance afithe work ar furnishing ofthe matetiais hereunder by Guboontranter and/or by any of ubcontractar’s. subcontractors, whither occasioned by Sutmanteaciors, Buyer's, Oumer's of any subcontractors negligence, Subcontractor ‘il defend af Subsbnitactor’s ow expense any actions based theteon and will pay all attemey fees, court oosts and ther expenses ariding there tram. H, SUBCONTRACTOR PR Contractor shall pay tn Subeontractor, ine the full anc complete performance of the Work, the Gudcontrast Price asec forth on Suboontract. 3, CHANGES. Contraetor mserves the tight to onfer extra work and materiais hereunder or males changes by ahering, ackling to dr deducting team the work ane! materiaia with the sum due hereunder to be adjusted soonedingly. No andre werk or materiats shall be made unless upon wsities order fram the Contractor, Hthe value af such extra work nr materials shall not be determined in a manner agreeable te both parties at the time of cider for and approval of such work of materiale, Suboontractar shal nevertheless fumish the work or materials promplly in accor with Conirecter's witten onder and the value shall be detemnined subsequently in sputes olsuse of the Contrret Qaoumente, 'S, The tallowing terms of payment ehell apply on all Gontractor’s purchases witheut toss: theraice aspectally arranged belere acceptance of Contactors order. Subcontractor mruast haven performet x of fe obligations under the Terms and Conditions, including, without imitation, all administrative ‘Wams and conditieds Reon: Contractor shall be: obligated to make payment te Subsontracioy, if Subcontractor is in default of any term ot provisign Bf the Guaoomtract Contractor shell not be obligated to make payment to Suboontracter until such defauit is cured, E a “APPLECATION FOR PAYMENTS. Contractors Application for Payments wil be submited to the Owner on the Default day of each month. Payment mequeit data must be fo Thomes & Marker Construction Gs. iy the Seteult day of exch month, All binge must be braben sul labor and material par apanifications aantion an AA OFO2/783 formes, Bilings will include work te the end of the month and be based on the percentage completion sppraved by Gener, Architect and Contractor for each tine fem on Subcontractors Schedule of Values Subsuntrscior shall furnish with each Appiigation for Paymeni thelr Subvontractar's Atidav® of Subsontracio: and Supplies. Failure of Subsontiacter fo comply with date and/or manner of submission of the Application for Payments and Subsontigctors Affidavit may renal in payment delays. & RIGHT TO WITHHOLD, Contracter may withhold from curent and future paymants due Subsontrscioy amaunts Raceway to protect Contractor from defective work of materials not remedied, claims fled of Rked te be ited, Buboontrastor’s isilure to make payments property to worlanen, to subcontractors of te material men, doute that the order can be completed for the Balance then unpaid, and/or for the Subcontractors failure te perform hny of the obligations heraumder. ifthe faregaing causes are removed, the wilhhald payments ss be plomptly mate, Meaid causes ane nol remewed on vritten notios, Contactar may rectify them at Suboonttactors expanse. When requited by Centractor, payment as herein provided wil bs made only after the Suboontiactor suppties Contrantar with 2 statement signed by Contractor's customer that af work has bean satisfactorily completed. Contractor, at its option, may pey such claims of costa and eredit euch amounts ax if paid te Subcontractor. o, Pay ll Bad Reosini of payment by Thomas & Marker Construction Ca. from the Owner for work performed by Suissontiaator is s condition crecedent te payment by Contactar te Subcontractor for that work, 1 SUB-SUBCONTRACTS, Suteohiractos $s requivad te natily Connecter prior to commencing work, of the names of gud subcontractors who will fumish labor or materials for any of the work and matetials hereunciar, and Subsantraster tnay not empiny any te which Gontrador may object, within a ressenatis time, as incompetent or unfit, Ne ferme oF ounditiens contained herein or work and materials of satvices: performed for Subsontractars ‘by others in canying aut this order shall qeate any contractial mistion helwnen any subwbeoniractar and Contractor or relieve Subooniractor of respansibility, After work has commenced, ntracior Wi provide Subsontrasters Aiidavit of Subcontractors and Supplier: with gaat Apatcation of Paymer a. LIENS, STOP NOTICES: ANG BOND CLAIMS. & is s condhion ofthis Subsartract that Subcontractor will waive and retinguish any flen or right ef isn, stop payment nalices and payment bond claims now existing or that hetafier may afise for the work performed fr materials Aumished hereunder and that paler te receiving payment, Subsontiasier wil exeaute an indeinnly agreement and hasher of flen an forms atinplied by Contractor, His s futher coraiition of this Subcontract that, when required by Contractor, prior te recelving payment, Subsentrastar wil tumish Contractor goed and sufficient walver offen from every pecan, fir: ef comporaton fumishing isbor or matetials under this Subcontract using ferms supplied by Contractan, may MARKEROGHNSSSFranklin County Ohio Clerk of Courts of the Common Pleas- 2021 Apr 06 8:57 AM-20CV003790 OF458 - U32 TERNS AND CONDITIONS : S MARAER As FAN, Somedtinant # MOW8120469 Fuel Storage Tanke, Bate: (ARRON i. WARRANTY, Subso: warrants the work and materials Subcontractor furnishes an this Suboontract to be new, of and workmanship, in to the specific warranting required by the specifications for the work ang materisis to be performed, Subsuntractor repair and make good, free of cast te Contractor, any damages ar fault in the work ar matadais that may sosur during the peliod of ane year {or during a fanger pitied ff required by the specifications, by the face skis hereof of by the Subcontractor's standard guarantee) from the date of completion of the work and materials and acceptence fey the cuntorner, DEFAULTS. Bey one cc ca af the work and material with prompinese or ce oman asa inte esc