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HomeMy WebLinkAbout01-06183 "'"1" ~>~~ ", . , '0r~$!\"""""", W A YPOINT BANK, Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW '--t- : NO. 01 - ~IRd Clu;l l~ DOVERGF,LP, Defendant : JURY TRIAL DEMANDED NOTICE YOU HA VB BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 1-800-990-91 '-..". '1,-"':"- "1'" . --~ !-' ~ F"ll'f'-d s' ,'C ". ,~', ',' ~ " - ", ,,-~ ~- ~' ~~ 4. Michael W. Winfield, Esquire Attorney J.D. No. 72680 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for Plaintiff W A YPOINT BANK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. : CNIL ACTION - LA W ~ : NO. 0\ - G:.IR1 (]lu~l I~ DOVER GF, LP, Defendant : mRY TRIAL DEMANDED COMPLAINT NOW COMES, Plaintiff, Waypoint Bank, by and through its attorneys, Rhoads & Sinon LLP, and hereby avers the following: 1. Plaintiff is Waypoint Bank ("Waypoint"), a federal savings bank and successor to York Federal Savings & Loan Association, with a principal place of business located at 235 North Second Street, Harrisburg, Dauphin County, Pennsylvania. 2. Dover GF, LP ("Dover"), upon information and belief, is a limited partnership organized and existing under the laws of the Commonwealth of Pennsylvania with a principal place of business at 1000 North Front Street, Suite 500, Wormleysburg, Cumberland County, Pennsylvania. 3. On or about November 28,2000, Defendant entered into a Standard Form of Agreement between Owner and Contractor ("Dover/Ziegler Agreement") with Bryan A. 400132.1 "'-.~ ,',~. "c','-"".' . e_ -'C , "~_,, -- -,~ ,-. r< "';-1 c_ _ ,_ -'f" ' ,~ r "c, e,_ , - " ~ :::i;:,,,, ,,~"o' - "- . - ~- l , " Ziegler Excavating & Paving, Inc. ("Ziegler") for site work related to the construction of a new Giant Food store and retail shops in Dover, Pennsylvania (the "Project"). A true and correct copy ofthe Dover/Ziegler Agreement is attached hereto as Exhibit "A". 4. Pursuant to the terms of the Dover/Ziegler Agreement, Ziegler was to receive payment in the amount of $1,340,000, in the form of monthly progress payments based upon a schedule of values submitted by Ziegler, which allocated the entire contract sum among the various portions of the work to be performed. 5. On or about April 7, 2000, Waypoint executed an agreement with Ziegler pursuant to which Waypoint purchased, and Ziegler assigned, among other things, certain of Ziegler's accounts receivables for the Project ("WaypointlZiegler Agreement"). A true and correct copy of the WaypointlZiegler Agreement is attached hereto as Exhibit "B". A true and correct copy of the list of accounts receivables for the Project purchased by Waypoint from Ziegler is attached hereto as Exhibit "C". 6. As Owner of the accounts receivable for the Project, Waypoint has the same rights and remedies against Dover vis-a-vis the accounts receivables as Ziegler had. 7. Upon information and belief, Ziegler defaulted under the terms of its contract with Dover, and abandoned the Project. 8. Upon information and belief, at the time Ziegler defaulted on its contract with Dover, Ziegler had performed work amounting to $506,690, and had submitted applications for payment to Dover for said amount. -2- :-=:r~}lW.~,l '- "f ,'.,,,"___." ~ - :"1 ", ., ^ - , "~'~~,-~ ,;;:c.'''''~' "". --,,~-,~ \ 9. Upon information and belief, Ziegler was paid only $96,219 by Dover for the work performed under its contract, notwithstanding that it performed work and submitted applications for payment amounting to $506,690. 10. Under the terms of the Waypoint/Ziegler Agreement, Waypoint purchased, and Ziegler assigned, $334,802.60 of the $506,690 in receivables for the Project. II. On or about March 23, 2001, Waypoint notified Dover through its Project Representative of Waypoint' s rights to collect upon Ziegler's accounts receivables, and demanded payment of the $334,802.60 sum. 12. Notwithstanding Waypoint's demand, Dover has refused to make any payment to Waypoint. 13. Although Dover has asserted to Waypoint that it maintains defenses to payment, it has refused to provide documentation to support that any such defenses exist, although Waypoint has requested same. COUNT I - BREACH OF CONTRACT 14. Paragraphs I through 13 are incorporated herein by reference as if set forth here at length. 15. As Owner of Ziegler's accounts receivables on the Project, and assignee of Ziegler's rights created therein, Waypoint has the same enforcement rights against Dover as Ziegler would otherwise have. - 3 - "';'T~~I~,:_^_~"",'r,'"_~;,;~"_",,,,__, ~""_, _"' '-"I- f'- - ."'~ ""- ~ r'~'"~" "~:r.;;" \ 16. Dover's failure and refusal to make payment to Waypoint of the amounts due and owing on the accounts receivables constitutes a breach of contract for which Dover is liable to Waypoint. WHEREFORE, Waypoint demands judgment against Dover OF, LP in the amount of $334,802.60, along with interest, costs of suit, and such other relief as deemed reasonable and appropriate by this Court. COUNT II - ACTION FOR PENALTIES. INTEREST AND ATTORNEYS FEES PURSUANT TO THE CONTRACTOR/SUBCONTRACTOR PAYMENT ACT 17. Paragraphs 1 through 16 are incorporated herein by reference as if set forth here at length. 18. In failing to remit payment to Waypoint after notice of the sale and assignment of accounts receivables to Waypoint, Dover failed to comply with the payment provisions set forth in its contract with Ziegler. 19. Pursuant to Section 12 of the Contractor/Subcontractor Payment Act, 73 P.S. S512, a contractor is entitled to an award of penalties, interest and attorneys fees for all amounts wrongfully withheld from payment by an Owner. 20. Upon information and belief, Dover has wrongfully withheld payment of the amounts owed on the accounts receivables owned by Waypoint. -4- '-' '''' <, -,'- I,,~ "I ' "__ p.,_ ~ " - ;," c ~ ~"', - v~,~'-' . 21. Waypoint, as Owner of the accounts receivables and assignee of Ziegler's rights, is entitled to pursue against Dover the remedies afforded by the Contractor/Subcontractor Payment Act. 22. Waypoint is entitled to interest at 1 % per month, penalties at 1 % per month, and attorneys fees as a result of Dover's actions in failing to remit payment. WHEREFORE, Waypoint demands judgment against Dover GF, LP in the amount of $334,802.60, along with interest, costs of suit, attorneys fees, and penalties, as provided by the Contractor/Subcontractor Payment Act, and such other costs as deemed reasonable and appropriate by this Court. Respectfully su By: - 5 - --,:;,\j'i'f~!\I!I:;l"l;",,,,,- _ "--, I 'C' ." .. , r VERIFICATION David E. Zuern, deposes and says, subject to the penalties of 18 Pa. C.S. S4904 relating to unsworn falsification to authorities, that he is the President of Way point Bank, that he makes this verification by its authority and that the facts set forth in the Complaint are true and correct to the best of his knowledge, information Date: Ir~/ \-'t~~i;," , "'~'" .~ . ,~-"~ '1' ~.--I- ~- , -.,' .-'- -,. ~" -. - " .'. ~ . AlA Document A101JCma Standard Form of Agreement Between Owner and Contractor where the basis of payment is a STIPULATED SUM 1992 CONSTRUCTION MANAGER-ADVISER EDITION THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. The 1992 Edition of AlA Document A2011Cma. Genetal Conditions of /he ContIact to< Consfruction. C<>ns/luc:OOn Manager-i\dviser Edition. is adopted in this document by reference. Do not usa ,.;u, other genetal conditions un/6Ss this c/ocument is modified. AGREEMENT made as of the Twenty Eight day of tIn -US, Indica.. 0Sy, month _ _.J Two Thousand November in the year of BETWEEN the Owner (Nllme__J DOVER GF, LP 1000 NORTH FRONT STREET SUITE 500 WORMLEYSBURG. PA 17043 and the Contractor: (Nsme__J BRYAN A. ZIEGLER EXCAVATING & PAVING. INC. RR#3 BOX 362 PALMYRA, PA 17078-9731 For the following Project: (IncludS detaiI6d dlIscripliOn of ProililCt, location. address and $COp8) NEW GIANT FOOD STORE #306 & RETAIL SHOPS (DOVER MARKETPLACE) PA ROUTE 74 & PALAMINO ROAD DOVER,PA The Construction Manager is: (Name and address) DENNIS J. SCHMIDT GENERAL CONTRACTOR. INC. 1000 NORTH FRONT STREET, STE. 500 WORMLEYSBURG, PA 17043 . The The Engineer is: (Nsmoa"" -J RJ.FISHER & ASSOCIATES. INC. 1546 BRIDGE STREET NEW CUMBERLAND, PA 17043 The Owner and Contractor agree as set forth below. Copyriglt 1975,1980, 1m by The American Institute of Architects, 1735 New YOl1l: Avenue, N.W. Wash.,gron, D.C. 20006-5292. Aeproduction of the mal8lial Herein or substantial quotation of its provisions without !he written permission of the AlA viOlates the copyright taws of the United States and will subject the violator to legal prosecutiOn. I AlA DOCUMENT Al01/CMa . OWNER.CONTRACTOR AGREEMENT, CONSTRUCTION MANAGER-ADVISER EDITION. AlA. 1992 . THE AMERICAN INSTITUTE OF ARCHITECTS. 1735 NEW YORK AVENUE, N.W. WASHINGTON. DC. 20006-5292 . WARNING: Unl/cen_ photocopying violates U.s. Copyr!ghtlawa and will BUb)ect \he Ylolator to legal p_uUon. A101/CMa-1992 1 - '-~, """" , . H.'"C. . ~- -. , . ARTICLE 1 THE CONTRACT DOCUMENTS The Conllact Documents cOnsist oIlhIs Agreement, Conditions 01 the Contract (General, SUppl8mentary and other Condilions), Drawings, SpeclflcaIIon, Addenda Issued prior to execution oIlh1s Agreement, other documen1s IIslecIIn litis Agreement and Modificalions Issued alter execution 01 litis AgI88lllenl; lItese fonn lite Contract. and 818 as fully a part of the contract as ff all8Ched to litis Agreement or repeated herein. The Contract replllS9llts the entire and integrated agreement between the palties hereto and prior negotiations, representations or agreemants, eithar written or oral. An enumeration of the Contract Documents, ollter than Modifications, appears in Article 9. ARTICLE 2 . THE WORK OF THIS CONTRACT The Contract shall execute the entire Work described in the Contract Documents, except to the eXlent specifically indicated in the Contract Documents to be the responsibility of others, or as follows: ALL WORK IS SPECIFIED IN PLANS PREPARED BY R.J. FISHER & ASSOCIATES, INC. PERTAINING TO SITE DEMOl.ITION, EROSION CONTROl., BUl.K EXCAVATION AND Fill, STORM SEWER, SANITARY SEWER, WATER SERVICES, CONCRETE CURBING, CONCRETE WAl.KS AND ISLANDS, WIDENING OF ROADS, RAINWATER COl.LECTION SYSTEM, ELECTRIC TRENSCHING, BITUMINIOUS PAVING, LINE PAINTING, SIGNAGE, BOlLARDS, TRAFFIC SIGNAL, SITE LAYOUT, ALL PENN DOT WORK, FINE GRADING AND SEEDING, AND ALL LANDSCAPING. ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION' 3.1 The date of commencement is the date Irom which the Contract Time 01 Paragraph 3.2 is measured, and shall be the date of this Agreement, as first written above, unless a different date is stated below or provision is made lor the date to be fixed in a notice to proceed issued by the Owner. (Insert t/'te date 01 commencement, if it diffBtS from the date of this Agf'fH)NrltfMt or, if applicable, statelhat the date w;1i be fixed in 8 notICe to pIDC86d). WITHIN TEN (1 0) DAYS OF THE NOTICE TO PROCEED AS ISSUED BY THE OWNER AND AS SOON AS PERMITS ARE OBTAINED. Unless the date of commencement is established by a notice to proceed issued by the Owner, the Contractor shall notify the Owner, through the Construction Manager, in writing not less than five days before commencing the Work to pennitthetimely liling 01 mortgages, mechanic's liens and other securily interests. 3.2 The Contractor shall achieve Substantial Completion of the entire Work not later than (Insert the caJeru1ar date or number of caJendar days after th8 t1ate 01 CDI1JIIIlIIJC8mt Also in$8t'f any fBQlJiremsnts for artier SUbstsntial Completion of certain portions of tM Wot1c, if not stated eJs8W1lere in 1/16 Cantraa Documents.) TWO HUNDRED FORiY (240) CAl.ENDAR DAYS. ,subject to adjustments 01 this Contract Time as provided in the Contract Documents. (Insert ProvisionS. if any. for liquidatSCI damages relB.ting to failure to COI'lfJ/6te on 1im9.) AlA DOCUMENT A 101/CMa . OWNER.CONTRACTOR AGREEMENT. CONSTRUCTION MANAGER-ADVISER EDITION' AlA' 1992 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W. WASHINGTON, DC. 20006-5292 . WARNING: Unllcenaed photocopying v101a1e8 U.S. Copyrtghllawa and will subjeclIhe vlolstor to Iegol prosecution. A101/CMa-1992 2 ".ymt ,"- ,.,.., -,., "_I,_M"^ 1'- ~- I" <'- ," -",,^- ,-~ !- '. .DnN,.. . . CONnIACI'IUII 4.1 The Owner 8hBI1 pey 1I1e ConlIal;U In CIIIl8l'4 f\nI8 ~~~.,.;.;... pe.fO;illance ilI111eCclnlnlct 1I1e Conlnlct Sum ill ONE MlLJ.lON, THREE HUNDRED FORTY ntoUSAND . . 00lIlInI. IS 1,3040,000.00 ). 8llbIect II) 4IlddIIIal. 8IId ...'CIJftow.. pnllIIded In Ihe CanInIct ~ --.. '....:.~~< .. , .. . ~ " -.'-'t.:.~:.--_- . . -:; ;-j':~.:.~:-"'.:t'j:r..~'r~.~:..:. ;',-. 4.2 The Conl/aCt Sum Is b8sed upon 1I1e fCIlklwIng aIternal88, If 8JYf, which are described In the Contract Documents 8IId are hereby ~~~th8~r.. . (_Ihe_"'_.IilO> .. .. ld~_ 1f_""__.....t>>_by""'OlonorRiJNqc...""'--"*"'dlllis ___._d___~Ihe_for_aa1"___""'_Ja_) 4.3 Unit prices. If any, are as follows: A. EXCAVATION AND REMOVAL OF UNSUITABLE MATERILA B. RIPPED BULK ROCK EXCAVATION C. BlASTED BULK ROCK EXCAVATION D. RIPPED TRENCH ROCK EXCAVATION E. BLASTED TRENCH ROCK EXCAVATION F. IMPORTED SUITABLE BACKFILL G. REMOVE SPILAGE BY OTHERS H. REMOVAL FROM THE SITE OF EXCESS FIL $28PERC.Y $14 PER C.Y. $ 34 PER C.Y. $18 PER C.Y. $ 46 PER C.Y. $ 22 PER C.Y. $6.80 PER C.Y. $6.80 PER C.Y. AlA DOCUMENT Al01/CMa' OWNER-<XlN1RACTOR AGREEMENT, CONSTRUCTION MANAGER-AOVISER EDmON . AlA' 1992' THE AMERICAN INSTlT\1TE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W. WASHINGTON, DC. 2M""-"'$2' WAIIHING: UnIIcenud ~g vlo..... U.s. COpy1fghllaw tIRd wtll.ubjlclllle violator to Iego1 PfOMCUlIOn. . ~ ~, ..."..'e.:.~_ .-',L: '-. - "..;.;,<./ , i A101/CMao1992 3 .," "', ~ I ~ ~ ~..".. "\ ART1Cl.E 5 PROGflESS PAYMENTS 5.1 Based upon Applications for Payment submitted by the Contraclllr 10 the ConsIrucIion Manager, and upon Project Applications and Certificates for Payment issued by the Cons\nJClion Manager and ArchKecl, the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere the Contract Documents. 5.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows: 5.3 Provided .an Application for Paymenl is submitled to the Construction Manager not later than the 25TH day of a month, the Owner shall make paymenllo the Contractor not later than the 30TH day 0 f the following month. If an Applicalion for Payment is received by the Construction Manager after the application date fixed above, payment shall be made by the Owner nollater than THIRTY (30) days after the Construction Manager receives the Application for Payment. 5.4 Each Application for Payment shall be based upon the Schedule of Values submitted by the Contractor in accordance with the Contract Documents. The Schedule of Values shall allocate the entire Contract Sum among the various portions of the Work and be prepared in such form and supported by such data to substantiate its accuracy as the Construction Manager or ArchKect may require. This schedule, unless objected to by the Construction Manager or Architect, shall be used as a basis for reviewing the Contracto(s ApplicatiOns for Payment 5.5 Applications for Payment shall indicate the parcentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. 5.5 Subject 10 the proviSions of the Contract Documents, the amount of each progress payment shall be computed as follows: 5.6.1 Take that portion of the Contract Sum properly ellocable to completed Work as determined by multiplying the perCl>ntage completion of each portion of the Work by the share of the total Contract Sum allocated to that portion of the Work in the Schedule of Values, less retainage of TEN percent ( 10 %). Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute may be included as provided in Subparagraph 7.3.7 of the General Conditions; 5.6.2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction (or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing), less retainage of TEN percent ( IO+A147 %); 5.6.3 Subtract the aggregate of previOUS payments made by the Owner, and 5.6.4 Subtract amounts, ij any, for which the Construction Manager or Architect has withheld or nullified a Certificate for Payment as provided in paragraph 9.5 of the General Conditions. 5.7 The progress payment amount determined in accordanCl> with Paragraph 5.6 shall be further modified under the following circumstances: 5.7.1 Add, upon Substantial Completion of the Work, a sum sufficient to Increase the total payments to NINETY-FIVE percent ( 95 %) of the Contract Sum, less such amounts as the Construction Manager recommends and the ArchKect determines for incomplete Work and unsettled claims; and 5.7.2 Add, ij final completion of the Work is thereafter materially delayed throUgh no fault of the Contractor, any additional amounts payable in accordanCl> with Subparagraph 9.10.3 of the General Conditions. 5.8 Reduction or limitation of retainage, if any, shall be as follows: (ff it is intended. prior to Substantial Completion of the fJntif8 Wonr. to ffKJu(;fJ or limit the reta/nags resulting from the PSlC6fltagBS inserted in Subparagraphs 5.6.1 and 5.6.2 above, and this is not expJsine(1 elsewhete in the COnrrsct Documents. inssrt hsn1 provisions tor such reduction or limitatiOn.) RET AINAGE WILL BE REDUCED TO FIVE PERCENT (5%) WHEN TO PROJECT IS FIFTY PERCENT (50%) COMPLETED. AlA DOCUME~ A101lCMa' OWNER.CO~AACTOR AGREEME~, CONSTRUCTION MANAGER.ADVISER EDITION' AlA' 1992' THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W. WASHINGTON, DC. 2<XJ06.5292' WARNING: UnllcenBad photocopying violates U.S. Copyright laws and will subject lite violator to legal prosecution. A101/CMa-1992 4 "~~"'-'" ",'~ -. - ,..-, .r" I r~' ~-< - ~ p,-, .,. ~. Ii- ., , . "Jff~~r: ., ARTICLE a FINAL PAYMENT Final payment, constituting 1he entIlll unpaid balance of 1he Contract Sum, shall be made by 1he Owner to 1he ContJactor when (1) the Contract has been fully parformed by 1he Contractor except for 1he Contractofs responsibility to correct nonconfonning Wor1< as provided in Subparagraph 12.2.2 of the General Conditions and to satisfy other requirements, n any, which necessarily survive final payment, and (2) a final Project Certificate for Payment has been issued by the Construction Manager and ArohRect; such final payment shall be made the Owner not more than 30 days after the issuance of the final Project CertifICate for Payment, or as follows: ARTICLE 7 MISCELLANEOUS PROVISIONS 7.1 Wha.re reference is made in this Agreement to a provision of the General Conditions or another Contract Document, the reference refers to thet provision as amended or supplemented by other proviSions of the Contract Documents. 7.2 Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate stated below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. (Jnssn rate of int8f8St agffJ6d upon, if any) (USury Jaws and r&ql)if81T18fJfS tJrrdsr the FBdsraJ truth in Landing Act similar state and local consumer aedt laws and other rsgu/Btlons st the Owner's and COnfJador's principal placea of bUSineSS. the locatiOn of /hit Project and sls8whe18 may affect the validity of this provision. Legal advice should be obtained with respect to deletions or modificsliorlS. and also 1998rrJing requirements such as W7i1tsn 6sc/OSu19S 01' waiv8rs.) 7.3 Temporary Facimies and services: (Here insert temporary facilities and S8tvices which'18 diffsrent from or in adcItion Jo thos8 included elsewhere in the Contract Documents.) 7.4 Other Provisions: (Hero list any sp<<iaJ provisions al/octing the Contract.) AlA DOCUMENT Al01/CMa" OWNER-CONTRACTOR AGREEMENT, CONSTRUCTION MANAGER-ADVISER EDITION" AlA "1992" THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W. WASHINGTON, DC. 200CJ6.5292" WARNING: Unllcen_ photocopying vto..... U.s. Copyright..... and will subject the violator to legal p~~n. . A101/CMa-19925 "_'e_ " -~, - , -~ i", ~. ,~,' . -~"l, ' I~.-. -'--' ~ ., , . : :"~~~; ., ., AR1JCt.E a TERMlHA110N OR SUSPENSION 8.1 The Contract may be tenninated by \he Owner or the Contraclor as provided in ArtIcle 14 of \he General Conditions. 8.2 The Work must be suspended by the Owner as provided in ArtIcle 14 of the General Conditions. ARTICLE 9 ENUMERATION OF CONTRACT DOCUMENTS 9.1 The Contract Documents, except for Modifications iSSued after execution of this Agreement, are enumerated as follows: 9.1.1 The Agreement is this executed Standard Fonn of Agreement Between Owner and Contractor, AlA Document A 1 01/CMa, 1992 Construction Manager-Adviser Edttion. 9.1.2 .The General Conditions are the General Conditions of the Contract for ConstnJction, AlA Document A 101/CMa, 1997 Construction Manager-Adviser Edition. GIANT FOOD STORE EDITION DATED 3/15/1999 9.1.3 The Supplementary and other Condttions of the Contract are those contained in the Project Manual dated August 2, 2000 , and are as follows: Document TItle Pages 9.1.4 The Specnications are those contained in the Project Manual dated as in Subparagraph 9.1.3, end are as follows: Section Title Pages 02151 SHORING 02151-1 THRU 02151-2 STRUCTURAL EXCAVATION, 02220 BACKFILL AND COMPACTION 02221-1 THRU 02220-8 02221 TRENCHING BACKFILLING AND COMPACTING 02221-1 THRU 02221-10 02630 CONCRETE WALKS, CURBS AND RAMPS 02630-1 THAU 02630-4 AlA DOCUMENT Al01lCMa' OWNER.coNTRACTOR AGREEMENT, CONSTRUCTION MANAGER.ADVISER EDITION' AlA' 1992 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE. N.W. WASHINGTON, DC. 20006-5292 . WARNING: Unlicensed photocopying vIolat88 U.s. copyright laws and wlllaUbjaet the violator to Iega\ _uIIon. A101/CMa-19926 ". ..- ~~- -_: ,h, '. -r~ " - ~1 ~ ., ..1.5 Thli Drawings are as follows. and are dated (9IW1IIIt..Dtaw/ngB_"_IO/lfI__lOfhIB~) unl8ss a different dale Is shown below: Number TItle Date 1 COVER SHEET ORIG REVISED 2 EXISTING CONDITIONS 11/9/99 8/18/00 3 FINAL LAND DEVELOPMENT 11/9/99 8/18/00 4 EASEMENT PLAN 11/9/99 8/18100 5 GRADING & LANDSCAPING PLAN 11/9/99 8/18100 6 EROSION CONTROL PLAN 1119/99 8/18/00 7 SANITARY PLAN 11/9/99 8/18/00 8 SANITARY PROFILES 11/9/99 8112/00 9 STORM SewER 11/9/99 8112/00 10 PALOMINO AD. PROFILE & STORM SewER 11/9/99 8/18/00 11 & 12 MISCELLAENOUS DETAILS 11/9/99 8/18/00 13 EROSION CONTROl DETAILS 11/9/99 8112/00 14 PALOMINO ROAD IMPROVEMENTS 12/30199 8/18/00 1 thru 8 HIGHWAYacC. PLAN 8/18/00 RE-5 SITE LIGHTING 5/11/00 8128/00 20f2 PALOMINO AND CARLISLE ROAD 9.1.6 The Addenda, II any, are as follows: Number Date Pages Portions of Addenda relating to bidding requirements are not part of the Contract Documents unless the bidding requirements are also enumerated in this Article 9. . AlA DOCUMENT A101/CMa' OWNER-CONTRACTOR AGREEMENT, CONSTRUCTION MANAGER-ADVISER EDITION' AlA' 1992' THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W. WASHINGTON, DC. 20006-5292 . WARNING: Unllcen_ photocopying violates U.S. Copyrfght laws and will subjecllhe violator to legal pro_ullon. . Al01/CMa-19927 ,0;<"", oll!il' "" , ~.;," I'" ~ ~ I'" 1 ~ , , -~ , ~- - ,11.1.7' Other documents, If any, forming part of the Contract Documents al8 as follows: (UIlhetrlony__ ""-... -...__,."""'fJOIlolCOnlnJctt\ocu,....... 7he_~pnw/de_~~ sudr,.. """_11"."_ ti>~ ","",-,._ BItIrfJ/B __1hiI c........, b1d...nct/>>llol"" CGnblo:lDoamo......"... _inlNs,"- 711ey-""_hetrl~'-"b8/>>1ld""CGnblo:lDoa..I"''''') BRYAN A. ZEIGLEFl EXCAVATING ANDPAVING,INC'S, SEPTEMBER 13, 2000 BID FORM AND AUGUST 7,2000 QUOTATION LEITER. This Agreement is entered into as of the day and year first wrillen above and is executed in at least four original copies of which one is to be delivered to the Contractor, one each to the ConstnJction Manager and Architect for use in the administration of the Contract, and the remainder to the Owner. OWNER CONTRACTOR 02~ (Signature) ~ (),.,u, I ~t1 V . DDYf11-e ( I J( (PrintednameBlldtitfe) Ytt.e P Ju.M.t/.ei1.1:" Brvan A. Z!eoler. President (Printed name and title) .'CAUTION: You should sign an original AlA document which has this caution printed in red. An original assures that iChanges will not be obscured as may occur when documents are reproduced. See Instruction Sheet for Umited Ucense . for Reproduction of this document. AlA DOCUMENT A10l/CMa' OWNER-cONTRACTOR AGREEMENT, CONSTRUCTION MANAGER.ADVISER EDITION' AlA' 1992' THE AMERICAN INSTiTUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W. WASHINGTON, DC. 20CJ06.5292' WARNING: Unllcensad photocopying Ylolates U.s. CoPyright laws snd will aubjec11he violator to legal prosecution. A101/CMa-19928 """'''''",>" ..- ,,-" -I 1--' - .. , ,MHY-~~-,~~l !~.!~ Wt"1I r-U.LI"lI 0""1"l" ,.,1 .........:. loJ.,.).... f- .tJ4' ......;J THE BUSINESSIMANAGER@AGREEMENT WITH BUSINESSES AND PROFESSIONALS TO: York Federal Savings and Loan Association 101 South George Street, P. O. Box 15068 York,PA 17405-7068 (the "Bank") FROM: Bryan A. Ziegler Excavating & Paving, Inc. 134 Bell Road Palmyra, PA 17078 (the "Business") This Agreement is entered into by and between the Bank and the Business to govern the sale of Receivables, as defined below, by the Business to the Bank. The Business agrees to the following terms according to which, when accepted by the Bank, the Business will receive payment for Receivables arising from sales or services to Customers and purchased by the Bank pursuant to the Bank's BUSINESSIMANAGER plan. SECTION 1: DEFINITIONS 1,1 "Credit Application and Agreement" means a Credit Application and Agreement executed by a Customer and any other agreement or documentation that governs the terms and disclosures relating to a Receivable. 1.2 "Credit Memo" means a form reflecting a credit, other than a credit arising from a payment, to a CustoIner's acCOWlt with the Business. 1.3 "Customer" means a debtor obligated on one or more Receivables which arose from goods the Business sold Of services it rendered to the Customer. 1.4 "Face Amount" of a Receivable means on any date the outstanding balance of such Receivable (after taking into accOWlt, without duplication, all payments, returns, credits, or allowances of any nature at my tiDle issued, owing, granted or OUtstanding), plus any taxes imposed in connection with such Receivable. 1.5 "Invoice" mems an invoice or similar evidence (whether in written or electronic form) of the terms of a non-cash sale of goods or provision of services previously made by the Business to a Customer. 1.6 Charge. "Net AmOUDt" of a Receivable means the Face Amount of a Receivable less the Service 1.7 "Obl111atlons" means all of the Business's obligations to the Bank, whether pursuant to this Agreement, under any note, contract, guaranty, accommodation Of otherwise however and whenever created, arising or evidenced, whether dire!;! or indirect, absolute or contingent, now or hereafter existing or due. 1.8 "Reeelvables" means all accounts, instruments, contract rights, chattel paper. documents, and general intangibles arising from the Business's sale of goods or rendering of services, and the proceeds thereof, and aU security and guaranties therefore, whether now existing or hereafter created, 1 '\."i~_,."." ~,"__' _,_, "-'1 ' ,r " \MHY-~4-2~~1 l~'l~ WHTt"'U!N I DHI'11'o. r.r C~~ r~~o r.~~'~~ that are accepted by the Bank: for purchase hereunder in the Bank's sole and absolute discretion. 1.9 "Repun:laase ObDllallon" means the liability of the Business to the Bank under this Agreement in an amount equal on any date to the Face Amount of Receivables on that date, plus attorneys' fees (ifin=d) and accrued and unpaid finance charges related to such Receivables. 1.10 "Reserve" means funds of the Business used to provide for the funding of the Business's RepurcMse Obligation. "Reserve Account" means the deposit account of the Business containing thc Reservc established pursuant to Section 2.S of this Agreement. 1.11 "Service ChaJ'l!e" means a diseount equal to three and 00/100 pertent (3.00%) of the Face Amount of each Receivable the Business tenders to the Bank that is acquired by the BIUlk. The Business acknowledges that the Service Charge is a discount for value and in no event constitutes interest or a similar charge and that the transactions contemplated under this Agreement are not transactions for the use, forbeannce or detention of money. The Service Charge has been agreed upon by the parties as representing a reasOll8ble and customary fair market value discount. SECTION 1: SALE: PURCHASE PRICE; BILLING: RESERVE 1.1 Assipment and Sale. The Bank hereby purchases from the Business and the Business hereby assigns and sells to the Bank as absolute owner, the Business's entire interest in such of its currently outstanding Receivables as are described on attached Exhibit 2.1, as well as its future Receivables represc1lted by Invoices it delivers to the Bank; providecl, however, that at no time shall the total outstanding Face Amount of Receivables purchased by the Bank exceed $1,000,000.00 unless agreed to by the Bank. The Business and the Bank agree that (a) the Business will submit to the Bank all Invoices representing receivables arising from all sales of goods or provisions of services to Customers for the Bank's detc:nnination of acceptability as Receivables; (b) the transactions contemplated by this Agreement are account purchase transactions; (c) the Receivables are being purchased by the Bank from the Business at a discount; (d) the purchase and sale of the Receivables vests absolute right, title IIIld ownership of such Receivables, together with all incidents and benefits thereof including servicing rights and rights to verify Receivables with Customers, in the Bank; and (e) the Business has no right to reacquire, redeem or otherwise obtain title to the Receivables or any proceeds thereof. The Business further sells and assigns to the Bank all of the Business's rights as an unpaid vendor, lienor, or lienholder, all of its related rights of stoppage in transit. replevin and reclamation and rights against third parties (all of which shall constitute pan of the Receivables), and agrees to cooperate with the Bank in its exercise of these rights. The Business and the Bank agree to execute and deliver such further instruments, documents and endorsements as may be necessary to effectuate the sales IIIld purchases contemplated hereby and the purposes of this Agreement. 2.1 Purchase Price. The purchase price of the Receivables shall be equal to the Net Amount thereof. The Net Amount less the Reserve associated with the Receivables shall be credited to the Business's primary account with the Bank on or before the next banking day after delivery to the Bank of acceptable Invoices. The 'Business and the Bank have agreed upon the purchase price of the Receivables and said price reasonably reflects their fair market value. 23 Documentation. The Business will provide the Bank with appropriate Credit 2 ""?,., ~'-~-'-- ',".<"^',..' - I' '1--"- . . , ~ rIHr-IQl4-~IQIQ.i .i~..iC , ' Wl"11 r-w... I'll Or-lf'H'\, f~1 O~~ ,~~ r.~~;~~ Applic.tioDS and Agreements, Invoices, and Credit Memos (if applicable) related to all sales and services aeatinl; Receivables of Customers, and such other documents and proof of delivery of goods or rendering of ser.nces as the BlIllk may reasonably require. A3 to the Receivables described on Exhibit 2.1, the payme:1lt of the purchase price by the B~ as set forth in Section 2.2 hereof shall be conclusive evidence of assignment and sale thereof, and, if the Bank SO requires, any Invoices the Business may thereafter send (if any) will clearly indicate that the related Receivables have been assigned. sold, and are payable 10 the Barile only. 2.4 BDlIlDi:. The Bank will send a monthly statement to all Customers i""";";11g their account activity duriDg the preceding billing period, unless otherwise agreed by the parties. All Customers will be instructed to make payments to a post office box controlled by the BBD1c. All payments received from or for the account of a Customer will be applied to the obligations of that Customer. Payment will be deemed made when received by the Bank. All variations. modifications or extenSions of indebtedness on Receivables sold to the BBD1c hereunder will be made only by the Bank. Nothillg in this Agreement authorizes the Business 10 collect Receivables sold to the BaDk hereunder. but in the event the Business does, it will receive remittances in trust for the BBD1c and will remit the same to the Bank no later than the next banking day. The Business will pay to tbeBank any finlUlCC c~ges incurred by a Customer pursuant to the applicable Credit Application and Agreement or teI'IllS of sale because of delay on the Business's part in delivering payments or Credit Memos to the Bank. 2.5 Reserve. The Bank may retain a portion of the SUllIll payable to the Business as a Reserve, the amount of which the Bank: may adjust from time 10 time in its reasonable discretion, to provide for satisfaction of the Business's Repurchase Obligation. The initial amount of the Reserve will be ecwalto 10% of the Face Amount of all Receivables initially purchased by the Bank. Thereafter. and subject to the Bank's right to adjust the Reserve as set out above, the Bank will retain as Reserve and deposit in the Reserve Account 10.00'Jl> of the Face Amount purchased by the Banlc subsequent to its initial purchase of the Receivables. The Reserve will be held in a separate, interest-bearing account for the benefit of the Business. SECTION 3: REPURCHASE OF RECEIVABLES: SEClJlUTY INTEREST 3.1 Required Repurchase, With respect 10 any Receivables initially purchased by the BaDk and shown on Exhibit 2.1. the Bank: may require the Business to repurchase all or any portion of such Receivables from any particular Customer if any minimum payment due on one or more of such Receivables remains unpaid following 120 days after i~ invoice date. With respect to any Receivables purchased subsequent to the Bank's initial purchase hereunder, the Bank may require the Business to repurchase all or any portion of such Receivables from any particular Customer if any minimum payment due on one or more of such Receivables remains unpaid following 120 days after its invoice date. For purposes of this Agreement, the aging stalUs of Receivables purchased from the Business as shown on the aging report of Receivables produced or generated by the Bank will be deemed conclusive (absent manifest error) in determining which Receivables the BaDk may require the Business to repurchase. Regardless of when purchased, the Bank may require the Business 10 repurchase all or any portion of such Receivables from any particular CuslOmer if such Customer is bankrupt or insolvent or if any dispute arises with a Customer regarding such Receivables (including, without limitation, any alleged deduction. defense, offset or counterclaim thereto). The Bank may require the Business to repurchase any or all outstanding. Receivables (a) upon a Default, as defined in Section 8, or (b) upon 3 <,.1j;i~,- ~ ~ ,^ -':-' ,- ,,-- "" .-=....,..", !l'~r '---'-'~'!~1-:~ ''0'''' < ,~~ ,," '''''~I . MHY-~4-~~~! l~;!o \\ ' WI""ITt"'U!NI CHI'1"- I .I. I 0.....' I ;;1,,)0 r" . ~..), .I.,.) the termination of this Agreement. Any decision by the Bank to require repurchase of less than the ma:Itimum amount pennitIed by this Agreement shall not be deemed a waiver of the Bank's rights to require such repurcbase to the maximum extent permitted in this Agreement. 3.2 Effecting Repurchase. Should the Bank require repurchase of one or more Receivables, the Business shall be liable to the Bank for payment of the Repurchase Obligation with respect to such Receivables. Upon a Default or termination under this Agreement, the Repurchase Obligation shall also include the amount of all indenmities and other obligations of the Business arising 1.U1der this Agreement. Without notice to or demand on the Business, the Bank may debit the am01.mt of such Repurchase Obligation (and any amount necessary to bring the Reserve to the level required by the Bank in its sole and reasonable discretion) against the Business's Reserve Account or any other deposit account of the Business with the Bank. In the event such accounts contain insufficient funds for the Bank's debit or the Bank elects not to make such debit, the Business agrees to pay any such deficiency or shortfall on demand. The Bank shall have no undertaking with respect to the billing or collection of Receivables so rep\1l"chased. After demand, if such Repurchase Obligation is not paid in full, and if permitted by applicable law, the Business authorizes any attorney-at-law to appear for the Business in any court of record in the United States, and to confess judgment for such amoWlt as may appear to be unpaid thereon, together with any allowable fees for collection of said judgment. 3.3 SeeuritY Interest. The Business hereby grants the Bank a security interest in all of its present and future accoWlts. instnunents, contract rights, chattel paper, documents and genenlintangibles (in each case as defined in the Uniform Commercial Code as in effect in the State whose law governs this Agreement) and the proceeds thereof, and all returned, repossessed, and reclaimed goods, and related books and records, to secure all of the Business's Obligations, and agrees to execute appropriate UCC- I financing and other related statements. In addition, the Business grants the Bank a security interest in the Reserve and in the Reserve AccoWlt to secure all of the Business's Obligations. The Business agrees to exec;ute such additional documents and take such further action as Blink deems necessary or desirable in order to perfect the security interests granted herein and otherwise to effectuate the purposes of the Agreement. In the event that the Bank requires additional security for the Business's obligations WIder this Agreement and the Business or other party executes additional security agreements, pledge agreements, guaranties and documents of similar import (collectively, the "Additional Security Documents"), terms used therein such as, but not limited to, "loans." "indebtedness," "secured obligations," and "obligations," shall be deemed to include the Repurchase Obligation as defmed herein, and notwithstanding the provisions of the Additional Security Documents, the Repurchase Obligation secured thereby shall not constitute a loan. SECTION 4: REPRESENTATIONS. W ARRAN1TES AND COVENANTS 4.1 RepreseJltations and Warranties. The Business represents and warrants that: (a) it is fully authorized to enter into this Agreement and to perform hereunder, and that this Agreement constitutes its legal, valid and binding obligation; (b 1 the Business is solvent and in good standing in the State of its organization; (el it is not the present intent of the Business to seek protection under any bankruptcy laws; (d) its Receivables are and that they will be at the time of theiI creation, bona fide and eXisting obligations of Customers of the Business arising out of its sales or services, free and clear ofall security interests, liens, and claims whatsoever of third parties; (e) the documentation under which the Receivables are payable authorize the payee thereof to charge. collect and receive interest at the rate 4 ~l~l\l!ilJX !,,~, .-""~~'3-'-' 0 ~~" n I 1:--- ~ , .'. '" '.,,"-~- = ,--~,' "" ",-, ,rlHY-iGI"+-'t:::.IiOJ,. J,.;;"J,.( , ' WM I ru.I.l''1 I eM,,,,,, , ..., Uwlc. 'J...lO r-. t:JQ; ~..) provided in such documentation; (f) all Receivables and all documents and practices related thereto comply with all applicable federal and state laws; (g) the Receivables will be paid by Customers prior to the date of required repurchase or will be repurchased by the Business pursuant to Sections 3.1 and 3.2 hereof; (h) the collateral in which a security interest is granted in Section 3.3 hereof or in any Additional Security Documents is Dot subject to any other security interest, lien or encumbrance whatsoever (except in favor of the Bank), and that the BusineSS will not permit such collateral to become so encumbered without the Bank's prior written consent; and (i) the Business's inventoty is not subject to any security interest, lien or encumbrance whatsoever and that the Business will not permit its inventory to become so encumbered without the Bank's prior written consent. 4.2 Covenants. The Business covenants that (i) it will allow the Bank to review and inspect during reasonable busiDess hours, and the Business will supply the following financial information, financial records, and documentation on the Business, any guarantors, Dr any Customer upon the Bank's request; (a) within thirty (30) days after the end of each calendar month, financial statements of the Business prepared by and certified by the Business's authorized agent; (b) within one-hundred twenty (120) days after the end of each fiscal year, financial statements of the Business prepared by an acceptable independent certified public accountant on a reviewed basis; (c) within one-hundred twenty (120) days after the end of each fiscal year, personal financial statements and personal tax retlJmS of the individual Guarantors; (d) within one-hundred twenty (120) days after the end of each fiscal year, fmancial statements of the corporate Guarantor prepared by an acceptable independent certified public accountant on a reviewed basis (e) weekly verification of FICA tax payment by Business; (ii) with respect to each Receivable as it arises: (a) the Business will have made delivery oC the goods and/or will have rendered the services represented by the Invoice, and the goods andlor services will have been accepted; (b) the Business will have preserved and will continue to preserve any liens and any rights to liens available by virtue of the sales andlor Services; (c) the Customer will not be the Business's affiliate; (d) the Bank's copy of the invoice will be genuine and will comply with this Agreement; (e) the Business will have no knowledge of IIII)' dispute Dr potential dispute that may impair the validity of the transaction Dr the Customer's obligation to pay the related Receivable in accordance with its terms; (f) the Business will have the right to render the services andlor to sell the goods creating the Receivable, and will do so in accordance with all applicable laws; (g) the Business will have paid or provided for the payment DC all taxes arising from the transaction creating the Receivable; and (h) the Receivable will not be subject to any deduction, offset, defense, or counterclaim; (iii) the transactions contemplated in Section 2.1 hereof are account purchase transactions, the Business will reflect such transactions in its accounting books llDd records as absolute sales of Receivables to the Bank, and the Business will reimburse and indemnify the Bank for all loss, damage and expenses, including reasonable attorneys' fees, incurred in defending such transactions as absolut~ sales of Receivables, Dr as a result of the recharacterization of such transactions; and (iv) in the event of the commencement of any proceeding under any banlcruptcy Dr insolvency laws by Dr against the Business, the Business will not oppose or obj ect to any motion by the Bank seeking relief from the automatic stay provisions of such laws with respect to the Reserve or the Reserve Account Dr to any motion by the Bank with respect to the Receivables. 5 ;i~,_, _~"' -""- 'I' 1--'''---' , ,," " c: ';~'!?_^ ~,MHl-~~-~~~l ~~;l( Wl"'llr-U11'l1 D~I'1r'\ ''''' '-'-',;.. ,............. . .....,'....... SECl10N 5: FORMS AND PR.OCEDURES: R.ESPONSJRTT.TTY FOR. USE 5.1 Forms and Procedures. The Business will use only forms, agreements, and advertising materials supplied or approved by the Bank in connection with the Receivables and will follow all procedures that are satisfactory to the Bank in connection with the use of such forms, agreements, and advertising materials. 5.2 Responsibility. The Business will be solely responsible for the adequacy, completeness and accuracy of the raw data relating to the Receivables, its preparation in the form required and its transmission to the Bank, and will indemnify and bold the Bank, its contractors, and their respective agents and employees harmless from (and pay all reasonable attorneys' fees with respect to) any claim or liability sustained by virtue of acting in reliance upon data furnished by the Business. The Business understands that the fonn of credit application and agreement and other documentation the Bank supplies TO the Business should be reviewed by the Business's counsel as the Bank makes no representation or warranty as TO their enforceability in the Business's state or their coinpliance with applicable federal and state laws. The Bank and the Business agree that the Bank is the owner of all Receivables purchased by the Bank hereunder, and that all activities of the Bank in connection with the collection of Receivables, generation of information, and processing of data, is for the account of the Bank's own affairs; and that the information generated in connection therewith is the property of the Bank. The Business will indemnify and hold the Bank, its contractors, and their respective agents and employees harmless from (and pay all reasonable attorneys' fees with respect to) any loss or elaim involving breach of warranty or representation by the Business and from any loss or elaim by any Customer relating TO goods andlor services (or the manner or type of their sale or provision) giving rise to Receivables purchased by the Bank bereunder. SECTION 6: POWER. OF ATTORNEY The Business appoints the Bank as its attorney-in-fact to receive, open, and dispose of all mail addressed to the Business pertaining to Receivables; to endorse the Business's name upon any notes, acceptances, checks, drafts, money orders, and other evidences of payment of Receivables that may come into the Bank's possession, and to deposit or otherwise collect the same; and to do all other acts and things necessat)' to carry out the terms of this Agreement. This power, being coupled with an interest, is irrevocable while any Receivable owned by the Bank shall remain unpaid. SECTION 7: APPIlCABLE LAW This Agreement shall be governed by, construed and enforced according to the laws of the COlIDnonwealth of Pennsylvania. SECTION 8: DEFAULT 8.1 Events of Default. The following events will constitute a default (a "Default") under the terms of this Agreement: (a) the Business fails to pay the Repurchase Obligation or any other payment obligation of the Business under this Agreement on demand or the Business fails to pay any indebtedness of the Business owed to the Bank pursuant to its terms; (b) the Business breaches the representations set 6 -,~ -~ , ""1 .. ., .,. f"1HY-1:j4-~I:jI:j.l 1:>; 1 ( , \ WHTr-u~r'lj C11""11'l'" r~r O~~ 'J~O r.~o~~~ forth in Section 4. 1 (d) or Jitils to turn over remittances on Receivables to the Bank in accordance with Section 2.4 hereof; (c) except for the obligations described in Sections 8.1(a), and 8.1(b) hereof, the Business Jitils to perform any obligation, covenant or liability in connection with this Agreement within ten (10) days after the date that written notice thereof is given to the Business; (d) any warranty, representation or statement whenever made by the Business in connection with this Agreement proves to be false in any material respect when made, or the Business fails to disclose to the Bank that any such wmanty, representation or statement has become untrue in any material respect; (e) dissolution or termination of the Business if the Business is a corporation, partnership, or other entity, or if the Business is an individual, the death of such individual; (f) the Business's insolvency; (g) the assignment for the general benefit of the Business's creditors, the appointment of a receiver or trustee for its assets, the commencement of any proceeding under any bankruptcy or insolvency laws by or against the Business or any proceeding for the dissolution or liquidation, settlement of claims against or winding up of its affairs; (h) the termination or withdrawal of any guaranty for the Business's Obligations; (i) the Business fuils to pay when due any tax imposed on it or any tax lien is filed against the Business or any of its assets; (1) any judgment against the Business remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days; (k) the Business discontinues its business as a going concern; or (1) the Bank in good faith deems the prospect of the Business's payment or perfonnance of its Obligations to have been impaired 8.2 Effect of Default. Upon the occurrence of any Default, in addition to any rights the Bank has under this Agreement or applicable law, the Bank may immediately terminate this Agreement, at which time all Obligations the Business owes to the Bank will immediately become due and payable without notice, and the Bank's obligations to the Business hereunder will cease. After the occurrence of a Default, the Bank will have the right to withhold any further payments to the Business, and none of the Bank's rights or collateral will be adversely affected thereby. SECTION 9: NON-LIABnlTY OF BANK: RELEASE Except for a breach by the Bank of this Agreement, the Business hereby releases, discharges, and acquits the Bank, its officers, directors, employees, participants, successors and assigns from any and all claims, demands, losses, and liability of any nature which the Business ever had, now or hereafter can, shall or may have in connection with or arising out of the transactions contemplated herein or the documentation hereof. In addition to the provisions of this Section and Section 5.2, the Bank shall not be liable for any indirect. special or consequential damages, such as loss of anticipated revenues or other economic loss in connection with or arising out of any default in performance hereunder or other matter arising here from. Nor shall the Bank be liable for any errors of judgment or mistake of fact when acting as the Business's attorney-in-fact pursuant to Section 6, or liable for delay in the performance of rhe Bank's duties caused by strike, lawsuit, riot, civil disturbance. fire, shortage of supplies or materials, or any other cause reasonably beyond the Bank's control. SECTION 10: EFFECI'lVE DATE: TERMINATION: BIND~G EFFECT This Agreement will be effective when accepted by the Bank, and will continue in full force and effect until the earlier of (a) one year after the effective date of this Agreement; or (b) sixty (60) days after written notice of termination has been given by one party to the other (in each case subject to immediate tennination upon a Default); and the term of this Agreement will automatically be extended for periods of 7 ':;~ll1Vrml,_~',,;, --'-. 0',""" , - < - I'~- -, '-,,~ , " -~ t~.. ~ ,-. MHY-~4-~~~! !~'!d , \ wHTr-U~NI .t)H(';r'\ 1.1 C~, fJ~C r-.~~,~~ one year each following its otherWise scheduled termination, subject to Section 8.2 above and to the parties' rights to leIminate this Agreement unde: clause (b) of this Section 10. Upon termination of this Agreement, the Business will pay all of its Obligations to the Bank; and in any event the Business will remain liable to the Bank for any deficiency remaining after liquidation of any collateral; and the Bank may withhold any payment to the Business unless supplied with an indenmity satisfactoIY to the Bank. This Agreement shall bind the Business and the Business's heirs, executors, successors and assigns and shall inure to the benefit of the Bank and the Bank's successors and assigns. The Business agrees that the Bank may delegate its duties hereunder, but that the Business may not do so without the Bank's prior written consent. SEC.TION 11: A'ITORNEY'SnEs: PAST-DTJEOlUJGATIONS: WAIVER: SE~:BEADlNGS:ENTIRE AND CONTROLLlNG AGREEMENT: NOTICES: COUNTERPARTS The Business will pay all reasonable expenses incurred by the Bank in connection with the execution of this Agreement, including expenses incurred in coonection with the filing of financing statements, continuation statements and record searches. All past-due obligations of the Business arising under this Agreement shall bear interest at the maximum nonusurious rate pennitted under applicable state or federal law. The Business hereby waives grace, demand (other than demand pursuant to Section 3.2 hereof), presentment for pll)'Illent, notice of dishonor or default, notice of intent to accelerate, notice of acceleration, protest and notice of protest and diligence in collecting and bringing of suit against the Business. Upon liquidation of any collateral, settlement or prosecution of a dispute with any Customer, or enforcement of BIIY obligation of the Business hereunder, the Business will pay to the BBDk, and the Bank may charge to the Business's account, all costs and expenses incurred, including reasonable attorneys' fees, and such costa, expenses and fees shall constitute part of the Business's Obligations. No delay or failure on the Bank's part in exercising any right, privilege, or option hereunder shall operate as a waiver of such or of any other right, privilege, or option, and no waiver, amendment or modification of any provision of this Agreement shall be valid unless in writing signed by the Bank, and then only to the extent therein stated. Should any provision of this Agreement be prohibited by or invalid under applicable law, the validity of the remaining provisions shan not be affected. The headings herein are for convenience only, and shall not define or limit the scope, extent, meaning or intent of this Agreement. This Agreement embodies the Business's entire agreement as to its affiliation with the Bank's BusinessjManager program, although the Business anticipates that the Bank will subsequently outline certain depository and other bank procedures. in the event of any inconsistency between this Agreement and any other agreement signed by the Business and the Bank in connection with this Agreement, including without limitation, any Additional Security Documents, the terms and provisions of this Agreement shall control and the terms and provisions of any such other document shall be ineffective to the ex.tent of any such inconsistency. Any notice, request or demand to be given hereunder will be deemed to be given when deposited with a delivery service addressed to, or sent by registered or certified mail to, the address of the recipient listed at the beginning of this Agreement. This Agreement may be executed in multiple counterparts, which when taken together shall constitute one and the same Agreement. 8 ,.;;,. L ~~T~TJ~ . " I , ,. ~. I - - , , "~- ~, ", nHr-~4-~~~! ~~.~O WHlr-l.JJ.I'11 Or-\I'1r'>. '.to' w....." ,.......'-' '..l.~'.l...J ... ~ ' SECTION 12: SPECIAL STIPULATIONS In the event of default IIDd acceleration as pro'llided above, BusiDess authorizes ad eD1powers irrevocably, the Prothonotary, Clerk of Court or IIDY Attorney of any court of record to appear for the Business in such court, in term, or vacatioa, at allY time aIId confess jadgmeut, jointly IIDd severally, in favor of BaDk with or without the filiug of all averment or declaratioa of default, for such amount as may appear to be W1paid, aU interest due thereon and all reasonable costs iJlcurreil in cOIUU!c:tion with the collection of suc:la amount, together with au attorney's fee of Five (5%) percent of the total amount due (but In no event less tho Five Hundred (5500.00) Dollars, and the Business walvesUld releases any IIDd all errors wbich may intervene in any snchproc~gs ud waives all right of appeal aIId. consents to immediate execution upon such judgmeJl.t. The Basiness shall DOt cause any biD in equity to be filed to interfere in IIDY lIlIUlDer with the operatioa of such judgment, hereby ratifying ud confirming all the said attomey may do 50 by virtue hereof. The author]lty herelaabove grllJlted shall aot be exhausted by one exercise thereof, but judgm\!nt may be confessed aforesaid from time to time and as often as uy default shall occur, hereunder. Confession of judgment nay be made by filing a copy hereof In Deu of the original hereof. The .Business acknowledges that Business understands the meaning and effect of the confession contained in the foregoing paragraph. Specifically, the BlISiness understands among other things that (1) BlISiness is relinquishing the right to Mvenonce except as provided herein, an opportunity to be heard and the right to have the burden ofproofofdefault rest on Bankprior to the entry of judgment. (2) the entry of judgment may result in a lien on Business ~ property. (3) Business will bear the burden and expense of attacking the judgment and challenging execution on the lien and sales of the property covered thereby. and (4) enough of lJIlSiness 's property may be taken to pay the principal amount, interest, costs and attorney:SO fees. BaDlt and Business acknowledge that dispotes arising onder this Agreement are Ukely to be complex and they desire to streamline and minimize the cost of resolving such disputes. Therefore, Bank and BusiDess irrevocably wsive all rights to a trial by jury In any ac:tlon, counterclaim, dispute or proceeding based upon, or related to the subject matter of this Agreement. This waiver applies to all claims against all parties to such actions and proceedings including those involving BaDlt or Bank's parent, affiliates or related entities, or llD)' offu:er, director, shareholder, member, attorney or partner of any of them. It abo applies whether such dispute or proceeding arises under this Agreement, any other agreement, note, paper, Instrument or document beretofore, or hereafter executed or lIIDY otber contract, whetber similar or dissimilar; and wbether or not it arises from intentional or UDintentional conduct, from fraud, other improper action or fallure to act, or from other reasoll5. This paragraph shall be deemed a covenant and enforceable independently of all other provisions of this Agreement. This waiver is knowingly, intentioually and voluntarily made by Business ud Business acknowledges tbat neither the Bok, or allY person acting on behalf of the Bank, has made uy representations to induce this waiver of trail by jury or in any way to modify or nullify its effect. Business fnrther acknowledges that it has been represented (or has had the opportunity to be represented) in connection with the signing of this Agreement and in the making of this waiver by IlIIdependent legal counsel, selected of Its own free will, and that it has had the opportunity to discuss this waiver with counsel. Business further acknowledges that is bas read and understands the meaning and ramifications of this waiver provision. . ThiJ Agreement contains Business's waiver of trial by Jury, provides for the remedy of confession of Judgment by Bank and waiver of certain other rightJ and remedies by BlISinesJ. In connection therewith, maker voluntarily and knowingly waives Bl4iness's right io a trial by Jury, its right, if any to notice and to be heard before the entry of confession of judgment. and waives other rightJ and remedies as set forth 9 :,-"C"~"~I"".,~~ - I ~ 1-,'" ~ - - . . ;ij= ~HY-"'4-""''''1 1:>'1'" WHTr'UJ.NI tlHN" (J.( C.:>.::'. (;,..)C r'.J..IJ.I..,;) ~ in the Agreement. Bl4Jliness QC/muwledge.r that it is represented by cOIIIl$el and tlult COll1/Sel /ra.s reviewed and explained the meaning ufthese wai'lleTs and remedies to maker. TIlE UNDERSIGNED ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS A RELEASE OF CLAIMS AND WAIVERS OF CERTAIN RIGHTS AND THAT THIS AGREEMENT HAS BEEN FULLY UNDERSTOOD PRIOR TO EXECUTION. ATTEST: BUSINESS: BRYAN A. ZIEGLER EXCA V AnNG & PAVING,INC. ~?rts:-' fA k-J By: !/). ..~ President ACCEPTANCE: This Agreement is accepted this \4. \- day of ~ ~..... \ ,2000. ATTEST: BANK: YORK FEDERAL SAVINGS AND LOAN ASSOCIATION ~. ~ ,,~~ Assistant Secretary By~ Vice President 10 ~~H~,,^ _ ,,_~, ~:=, ' ;"1 ~ I' "- ,- ,-' c f- MHr-~4-,~~~ ~~.~j .;. l./Jr'llrl"JJ.I'i1 CMI'r-.. 1.1 O~, lJ~O I..".~ .. Disclosure For Confession of Judl!lDent Bryan A. Ziegler Exacavating and Paving, Inc. ("Business"), today is qjgrm,g The BusinesslManager Agreement (the "Agreement") with York Federal Savings and Loan Association, (''York Federal") in the amoUllt of Two Million Dollars ($2,000,000.00) which obligates Business to pay that amount to York Federal Bmnp..ss uuderstands that the Agreement it is ~;lV'i"g co:atains wording: 1. which permits York Federal to obtain a judgment against Business in any Court of Common Pleas in the Commonwealth ofPeDDSylvania. 2. by which Business conseots to the enl1y of judgment against Business. The judgment may be obtained against and execution and garn;~hm..trt procl.'..n;"IJS begun without the following, all of which Business has intentionally and knowingly waived: a. the right to a notice and hearing; b. the right to reduce or set off a claim by deduction a claim Business may have against York Federal; c. release of error; d. inquest (the right to ascertain whether the rents or profits of Business's real estate will be sufficient to satisfying the judgment within seven years); e. stay of execution; t: exemption laws now or berea:ftcr to be passed; g. the right to o..f","<! against the entry of judgment against Business; Business certifies that it received a copy of this disclosure at the time of signing. Date: ~".. 2.0CO Attest: Bryan A. Ziegler Excavating and Paving, Inc. l~~ ecretary ~q tlJr President ':'~rlf\1l ~ ,.",. r ,~- '1 _0._, ., , < ~ , , , " , :J0(..l:J .:;..:;.'...).1:::.... r .UI'.....;.....) .JUN-lb-':::::I!l~l .1O:::::~::>':::: .n~uft~ JU~'n"L rD~1 1Il-2!27 , .- ... TlAMSAtTIO. DETAIL ... . , IHV KD DESCRIPTIon IHV DAT! JOB mm nVlln ARDun TAX AiUUJT mRLDUE IHIINA6E mElT tLIElT _AlE DOE DATE mID TAl S/l WOlf 6/l TAX 6H ACCr m '/l IETRIHAle .~~-~--- __________M_______~~_______~__ ________ _____________ _____ _______...____ _~.___a_______ __._______...___ ~________~____ l'l&D6H IVilRI IV& lAIRSEIEIT , DEV CDIPAIY 01/01/01 Ol/l1!Dl 205m ,S,DDD.DD 3011 25,000,00 mo I,SDD.DD mo -----~~-~---------------------------------~----------~------_._----------------------------------~-------------~---_._--~--~-------- iSTAL ,5,000.00 l6.0DUO l,lOD.OO "'I ' \ h.. to- , tAlODW'.. ,_,l\lP .'I'C:\ , ),' - ~5QO#d61'~ ,1)1' SO 0 ,00 "'~"""'"",,",,~ .,.-. r " '-" I' '1'"'-- , '"', .;UI'l-.I.0-'::::lOu.l. .I.,...).::. ~l~TED D2/11/Dl IT 3:S4 PI . liV AD tlun DESeRIPTION mmmE BrYII I lll,llr Ere' PI' lac IltDI( ~DDKIII 'OSI ... TIAIS!eT!DI DETIIL ." llV DATE JDI 1~IAfl Due DATE fIT ID INVm, ImlT TII I/L INtDI! I.' ~....,~ <=.<=.........., , .....,....'-'-' Haem PIiE 1 111-15,5 Tal AlOUlT Ifl TII mnm mmm III ICtT I,t Ifl RITllr!iE 9i4lO1 1-2 DDIFIP ~ -......-....-... ......-...------------...-- -.......--. .........-..-....- -..-..- ---...---- ..--...------ ----....-..---. -.----..--- 141,iTl.20 1m 24,317 .12 2l3O ----~------:~\fI"~ ------------------------------------.------;;;;;-..-.;;;~;;~~;;-----.-..-----..----;;;~;;~~;;-----.;;~;;;~~;-- -;Jt!:3P /;;A ~~ ,. - ~)~OOD. Ocr(!J.,.d., '1,2- t.-. q Lo~ UiCll 2 'I?>' t, \ -- ,J~ ,..~"- ' , '-" ., D1fllfOl 03f14/01 I ~ mOll " m,lll.!D IOS! /9t.f1 )00,00 ..J UI'I- J..O-'::::'t:JUJ.. J..'::'",..}'::' . . ...' IN\! NO CLIENT oSCRIF.l'lON CllENT NAME G TNC\l"If: JOIJIlIIAl. !.IS'! - TRANSACTION DETAIl. .... IN\! DATE ~OB NUMBER DUE om: EST NO ' l/lVOlCE lIi'OUNT TAX IiIL INOlMf '--' TAl( Jli'IC!UIfT _/L TAX ....., -''-'-- ..................... .'''.....-1 1"'14....:. TOTAL DUE RITAlNASE -I" ACCT REC 1:(1. RETAINAIOe 964';95 3-) OOO,L? OOV~R or. LP .__._.__._~ ____~---.-----~----~---~.- _J______ _____._~.- ~____ ~_____________ ___-._________ ______________ ._____________ 0.3/0,/01 04/0Q/01 205033 55,000.00 3051 55.000.00 1200 RV0 ---------.._~......__...._---_...-..._-------_...._._._---._---------.-....-.....-- 55,000,00 enD l-j (p 3 .~j /'J .\"'- '(i\ J. .) " :"'*',i~ll'lI'l)'il', Mll_ ~,e_ ~"-'-" ' '. 'I, TOTAL 55,000.00 ~ ,-' ~ ~ . $,&00,00 2130 s.soa.ao -5,5]0 ~;I- - Iff. rv D r , . , ' , , . ... , , . ;iJl1l~';'~~?1 .,JUI't-..l.O'-~l::.U::J.i. .I.':",J'::" FRIITED 01/15101 AT 11:12 AI mID mm DESCUPTIDR CLlEIT NAIE Bry., I Zil,).r fr, I Fay I" IICIIE ~IUR.al PIIT ... TRRASIeTIl1 DETAIL ... AlWLST PAif I RRI-lSll lNV DATE JOE IUliEt Imm mm TAl mURT TOm DUE mmm OUE DITE EST 10 TAl III IACIIE III TAl ~Il leeT Ife III AETAIRliE .......~_~ ..~~_~_______.__~~~._______.._ ~___~R__ ._..~__.__~_. _____ -~_.._r~""__ .~~__._~_._.__ ~__._..______. _.__~.________ 9UW 1-2 DDGm DIm IF,LI 11/11101 mOll IJIU/OI 1i,1I9.H 10S1 7O,109.1? 1200 7,ElU; Ill! .1ZVG _____.._.__._~_.__._______________._____._~_..____..________._____._..___________._____~_.__.____________._.___._~_._._._____.~_J_ 7,W.!! ~<:llpL.oj (pL.{5 3.15.'0 I "... '","'~" - 0',. " "I L.,~ 1;) , ., Y'? Tom 7l,lD!.I? lDO .'>( a.o"[;' 'If'" l) \\ 400 ' .1/ 7&,IOl.17 - ~t,lo.9r"fd-~ t~ 1.f91,S"~ ," ~ ,"" ,-~ . ">,~, '.-.,-, '--", ''''''" .>,-., -._,,>~-.,-,--, ,. ..., . .,,--.-, ",,- _ J . .. . . ~ f (:J \ ~ () C' c-: ;;.:0.: "'T' ~ " ,0 ~ r;"': CJ '-1 t () ?~ ,'--) ....... - -.~ ....... (/ B ~ "'\) 8 C3- r-", . ;:>) zt! ~ ::;:-:<"j ~ .. " V, I :[:::: h .. - , ~ -->~- ., --t f' ~ ~ ~~C' ~':'j t -<: .CO ~~ (:-:., .U , -~ ._~, .' . ~_ ~,"~ f.~I8:~JIQl! _ '_" __ ,.lHfL ~~!J~ ~~,-jI1ffi;)i'Zi":,,,;\q1!7ifSi~";!;~',,,,"m~l;,l~~~~l!l~,~,~,,,~,,!~_i"7:"~!JW SHERIFF'S RETURN - REGULAR CASE NO: 2001-06183 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WAYPOINT BANK VS DOVER GF LP CPL MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon DOVER GF LP the DEFENDANT , at 1300:00 HOURS, on the 31st day of October ,2001 at 1000 NORTH SECOND STREET WORMLEYSBURG, PA 17043 by handing to DOUG LEHMAN, ATTORNEY a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 10.40 .00 10.00 .00 38.40 So Answers: r~y~~ R. Thomas Kline 11/01/2001 RHOADS & SINON Sworn and Subscribed to before By: me this q't:.- day of '1Lm" 'A< J u < , .u>o fA. D . C1,u- Q. ')n, pf,~ $ othonotary I o_,,!,,'___'?N'}1"'''H -"''""'''!lffl!01~I::I'llj\l!lllfj!lJ'l_l!Il!i!tI_Jl'.""" ~, ~,~. r . ~ -