HomeMy WebLinkAbout99-00961
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
DO & K, INC. )
Plaintiff )
)
Vs )
)
H. EDWARD BLACK & ASSOCIATES, )
P.c. )
Defendant )
No. Cfq - 9(,. J
PRAECIPE FOR WRIT OF SUMMONS
TO THE PROTHONOTARY:
Dear Mr. Welker:
Please issue a Writ of Summons against the above namcd Defendant.
Respectfully submitted,
~
GINGRICH, SMITH, KLINGENSMITH & DOLAN
Dated:~
By:
o 'fD3 I~ . rnrYL ( Sf-.
;k.1'v-(5/~uv~ f)1 17f{O
John M. Smith, Esquire
Attomey for Plaintiff
Attorney tD. # 19520
222 S. Market St., Suite 201
P.O. Box 267
Elizabethtown, PA 17022
(717) 367-1370
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Marv Jane Snyder
Reui Estate Deputy
Michael W. Rinehart
^ssislllnt Chief Deputy
Ralph G. McAllister
Chief Deputy
William T. Tully
Solicitor
Dauphin Counly
Harrisburg, Pennsylvania 17101
ph: (717) 255.2660 Iilx: (717)255.2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
DD&K INC
vs
County of Dauphin
H EDWARD BLACK & ASSOCIATES P.C.
Sheriff's Return
No. 0344-T - -1999
OTHER COUNTY NO. 99-961
~D NOW: February 26, 1999 at 11:45AM served the within
WRIT OF SUMMONS upon
H EDWARD BLACK & ASSOCIATES P.C. by personally handing
to H EDWARD BLACK, PRESIDENT 1 true attested copy(ies)
of the original
and making known
WRIT OF SUMMONS
to him/her the contents thereof at 2403 N FRONT STREET
HARRISBURG, PA 17110-0000
Sworn and subscribed to
So Answers,
Jf!~
Sheri1tt~~~
before me this
'~.o~=
1999
PROTHONO'fARY
By
Deputy Sheriff
Sheriff's Costs: $25.50 PD 02/25/1999
RCPT NO 1210/1
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4, By way of background, it is believed and therefore averred in the winter of 1995-1996
Donald Mowery (hereinafter "Mowery) began investigating the possibility of purchasing a tract of
land consisting of approximately 190 acres located in Silver Spring Township, Cumberland County,
Pennsylvania. The property is located adjacent to State Route 114 between US Route II and
Interstate 81 in Silver Spring Township, and was at the time, owned by various members of the
Heath Allen Family (hereinafter "Allen Tract"),
5. It is believed and therefore averred in approximately January 1996, Mowery began
negotiating with the Allen Family for the purchase of the Allen Tract of land. It is believed and
therefore averred it was Mowery's intention to purchase the Allen Tract as a site for residential and
commercial development assuming he could obtain all necessary approvals on a timely basis and
assuming all due diligence was satisfactory.
6. It is believed and therefore averred during negotiations between Mowery and the
Allen Family, Mowery initially engaged the services of the Defendant herein, H. Edward Black &
Associates (hereinafter "Defendant") to perform various sketch planning services and site analysis
to assist Mowery in determining whether development of the Allen Tract was feasible.
7. It is believed and therefore averred the initial services provided by Defendant to
Mowery were provided in accordance with the proposal agreed to by the parties thereto.
8. It is believed and therefore averred, that based tipon information provided by
Defendant, on April 15, 1996, Mowery entered into an agreement of sale with the Allen Family for
the purchase of the Allen Tract.
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9. It was at this time, on or about March/April 1996, that Plaintiff became aware of the
planned purchased by Mowery of the Allen Tract and in turn, expressed an interest to Mowery in
purchasing one (l) lot (28,62 acres, more or less and later identified as Lot 16 on the Mowery Plan)
in the anticipated subdivision ofthe Allen Tract which subdivision later became known as the Bent
Creek Business Center.
10. In discussing with Mowery this proposed purchase, and Plaintiffs intention to
develop same as a retirement condominium community, Mowery informed Plaintiff he had
contracted with Defendant to perform various design and engineering services and to secure all
necessary subdivision approvals and permits inherent in the project. Mowery suggested to Plaintiff
it may want to consider contracting with Defendant as Plaintiffs land development plan ofthe lot
to be purchased would piggy-back in many respects Mowery's Subdivision Plan and that Plaintiff
could, by using Defendant, avoid duplication of effort in many respects and perhaps save on
development costs. Plaintiff could not purchase lot 16 and/or record its land development plan until
Mowery's Subdivision Plan was approved, properly recorded and Mowery or his designees
purchased the Allen Tract. Using the same engineering and surveying company for the development
of plans for approval seemed logical and in the best of all involved in the project.
I L By on or about March/April 1996, principals of Plaintiff were in contact with
Defendant dealing specifically with Defendant's assigned supervisor to the project and Vice
President in the person of Craig W. Bachik who at all times relevant hereto was an agent, servant,
principal and/or employee of Defendant operating within the scope of his employment with
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Defendant.
12. On September 19, 1996 Defendant submitted a proposal 10 Plaintiff for services to
be rendered,
13. On or about January 20,1997 Defendant submitted a revised proposal to Plaintiff for
services which proposal was later signed by Principals of DD&K, Inc. David R, Strong David G.
Heisey on March 4, 1997 (hereinafter "Strong" and "Heisey"). Strong and Heisey would later
become principals ofDD&K, Inc, the Plaintiff herein. A copy of the agreement for professional
services is attached hereto along with Bachik's cover letter relating to the same and incorporated into
the agreement. The agreement is marked Exhibit "A."
14. Defendant, even prior to entering into a written professional services agreement with
Strong and Heisey, had accepted the undertaking, had commenced work on the project and had
prepared two (2) schematic plans illustrating possible development schemes under strict R-2 zoning
and under the cluster option contained in the Silver Spring Township Zoning Ordinance.
15, With the contract with Defendant in place, on March 25, 1997, three (3) principals
namely, David G. Heisey, Robert H. Kauffinan and Miriam L Kauffinan (one principal) and David
R. Strong incorporated DD&K, Inc., entered into a joint venture development agreement (Exhibit
"B") for the purpose of acquiring and developing a certain property for a retirement condominium
community with said property being known and designated as lot 16 in the plan of subdivision of
the Bent Creek Business Center containing approximately 28.62 acres ofland and being situate in
Silver Spring Township, Cumberland County, Pennsylvania. The property is further described in
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20. Paragraphs I through 19 are incorporated herein by reference as though set forth in
fulL
21. As part ofits contractual obligations with Plaintiff, Defendant was required to obtain
approval of a preliminary and final land development plan, all necessary pennits for development
and other approvals necessary for Plaintiff's project which was to build units in and develop a
condominium retirement community.
22. As part of its contractual obligations with Plaintiff, Defendant was to perfonn all
services as outlined in its proposal and as described in the preceding paragraph, in a professional,
competent, diligent and timely manner.
23. As part of its contractual obligations with Plaintiff, Defendant was to perfonn as
outlined in its proposal, and as Defendant was aware and advised by Plaintiff, in such a manner that
Plaintiff could purchase and settle for Lot No. 16 in the Bent Creek Subdivision plan by or about
August 31,1997.
24. Defendant was well aware of such date and as such repeatedly assured Plaintiff that
they were "on track" for that time frame and completion of the Plan. In fact, completion had even
been discussed and contemplated for earlier than August 31, 1997.
25. Due to Defendant's breaches of contract, the purchase and closing did not occur until
almost nine (9) months later on April 15, 1998, With an understood and anticipated closing date of
August 31, 1997, Plaintiff reasonably prepared to proceed with the development of their
condominium community and had devoted construction, financial and marketing resources and costs
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for the planned construction of condominium units, to be ready for sale to third party buyers by
November 1,1997,
26. Throughout the period oftime between Fall 1996 and the execution of the Contract
with Defendant and in to mid to late Spring of 1997, Plaintiffs representatives became concerned
that Defendant was not prefonning it's contractual obligations in such a way which would lead to
completion of both Mowery's Subdivision Plan and Plaintiffs Land Development Plan in a timely
fashion,
27. Nonetheless, and based upon continuing representations of Defendant's employee
Bachik that settlement should be able to be held by August 31, 1997, Plaintiff requested and Silver
Spring Township issued Building Penn its on April 22 and April 29, 1997 for Units I and 3 and 2
and 4 respectively on Plaintiffs Plan and Plaintiffs initiated construction understanding that they
could build but not obtain an Occupancy Pennit until all Plans were recorded.
28, Subsequently, Plaintiffleamed that Defendant was not proceeding diligently and as
represented to them by Bachik, and that Defendant was in fact breaching it's Contract with them
during this period of time in the following particulars:
a. Bachik canceled a meeting with Representative of Plaintiff scheduled for
Apri125, 1997 and Plaintiff subsequently leamed it was because required work was not completed.
b. On May 6, 1997, based upon Bachik's earlier comments that the Plan had
been timely filed with the Township, Plaintiff believing it's Plan would be on the Silver Spring
Township Planning Commission agenda that evening, contacted Bachik to confinn the meeting and
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was advised that the Township "bumped" the DD&K Plan from the agenda because of a heavy
schedule. A follow up call to the Township by Plaintiffs representative revealed that no submission
of a Plan had ever been made by Bachik to the Township as of May 6, 1997.
c, In spite ofBachik's representations to the contrary of an earlier submission,
Plaintiffs Preliminary Development Plan was actually not submitted until May 22,1997.
d. The Plan was reviewed at a Planning Commission workshop on June 10, 1997
but was not actually considered until the Planning Commission meeting of June 17, 1997 at which
time 73 separate defects were noted with corrections to be resubmitted for review at a June 24,1997
meeting.
e. The revised Plans were not submitted in time for the June 24, 1997 meeting
and were not submitted until June 26, 1997 for consideration at the July 10, 1997 Planning
Commission meeting. Plaintiff believes and avers this resulted from a lack of diligence by
Defendant.
f. Additional problems continued to be encountered and a further revised
Preliminary Land Development Plan was submitted to the Planning Commission on July 17, 1997.
The signature and seal of a Stephen G. Fisher (hereinafter "Fisher"), a Registered Surveyor, was on
this revised Plan.
g. Subject to complying with certain conditions, which Plaintiffs understood
from Bachik would be easy to accomplish and require net too much additional time, the Silver
Spring Township's Supervisors at their meeting on August 27, 1997 granted final approval for the
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Plaintiffs revised Land Development Plan,
h. Sometime shortly thereafter in September of 1997 it was discovered that the
signature and seal of Fisher was forged on the revised Plan and as such the approval previously made
by the Township was revoked and made void by them.
L It was subsequently learned that the sarne signature was forged on the Mowery
Plan and as a result the settlements and projects of both Mowery and Plaintiff were delayed and
Plaintiffwas required to have extensive meetings and planning sessions with the Township officials,
which would otherwise had been unnessecary, in order to decide how to proceed, The added adverse
effect of this was that the Township was now suspect of anything submitted by Plaintiff for approval
by them.
J, Plaintiff filrther believes and hereby avers that Defendant breached its
Agreement with Plaintiffby entering into a contract which it either knew or should have known it
did not at the time have the personnel to fulfill; by failing to proceed diligently at all times; by failing
to render proper advice; by failing to apply that degree of professional skill commensurate with the
nature and extent of the project which skill it represented that it had; by misrepresenting its activities
during the course of the project honestly and forthrightly to Plaintiff and Silver Spring Township
Officials; by failing to file all required work product in a timely manner; by failing to consult with
Plaintiff and keep Plaintiffinfonned at all times; and otherwise by failing in all respects to represent
the Plaintiffs interests in a professional manner and accordance with the contract provisions and the
duties which it accepted expressly and impliedly by entering into its Agreement with the Plaintiff.
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29. PlaintifTbelicves and hereby avers that the foregoing course of events reflect a lack
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of attention to detail, a failure to proceed diligently, and a lack of proper application of professional
expertise all of which conduct was not in accordance with the agreement of the parties, but for
which, Plan approval would have been obtained well in advance of the contemplated settlement date
set forth in Plaintiffs Agreement of Sale with Mowery. Defendant was well aware ofthe Agreement
of the parties with regards to the contemplated settlement date.
30, Plaintiff further avers that absent the foregoing breaches of contract it would have
been able to settle by the August 31, 1997 date and been able to proceed with this project.
31. As a result of the breaches of contract by the Defendant, Plaintiff has been delayed
in pursuing it's project and has suffered losses as will be hereinafter outlined,
32. The elements of Plaintiff s damages caused by Defendant arise out of claims made
against the Plaintiff coming from three separate sources, as well as losses sustained by the
Corporation itself. They can be outlined and described as follows:
a. Claim of Robert H. Kauffman and Miriam I. Kauffman. (Hereinafter
"Kauffmans"). Kauffinans are share holders in Plaintiff and also investors in the development of
the retirement condominium Community (the "Project"). Based upon the above referenced Exhibit
"B",. Kauffinans were to and did invest in the project by paying in to the corporation "seed" money
on July I, 1997 in the amount of $50,000.00 and subsequently at the time of closing on April 15,
1998 and additional sum of $450,000.00 was invested. Kauffmans have lost investment earnings
on their invested moneys as a result of the delays in the project caused by Defendants in a sum of
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money in excess of$72,OOO.OO. These sums are duc the Kauffmans by the Plaintiffby virtue of the
said Exhibit "B" and the Note and Mortgage executed by the Plaintiff to the Kauffmans at the time
of closing.
b. Claim of David G. Heisey, Inc. (Hereinafter "Heisey") This corporation is the
builder for the project and responsible for the erection of the condominium units within the Project.
With the authority of the Plaintiff given to Heisey as a result of reliance on the Agreement of the
Plaintiff and Defendant and representations made by Defendant to Plaintiff, Heisey took various
steps to proceed with construction in April/May 1997. Due to the breaches of contract by the
Defendant outlined above, it was not possible for an extended period of time through January 1999
to obtain Occupancy Permits for the units which Heisey had constructed meaning that they could
not be sold which fwther meant that construction costs had to be carried by Heisey and he could not
be paid by Plaintiff. Heisey has made claim against the Plaintifffor a sum of money, his losses, in
excess of $495,000.00.
c. Claim of David R. Strong (hereinafter "Strong"). Strong's function in the
project, in addition to being a shareholder in the Plaintiff, was as the on site marketer and manager.
Based upon the Agreement ofthe Plaintiff and Defendant and the representations made by Defendant
throughout 1997 the Plaintiff instructed Strong to be prepared to proceed in that capacity at or about
September I, 1997. Knowing that instruction would be forthcoming, Strong removed himself from
his other income producing projects and entered into and concentrated his efforts on behalf of the
Plaintiff. Because the Project was delayed, which resulted solely from the breaches of Contract by
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35, This Agreement by Defendant, however, did not occur until on or after October 13,
1997 which was the first contact Plaintiff had with Defendant after discovery of the Bachik forgery
in early September of 1997,
36, Final approval of the Mowery Subdivision Plan and Plaintiffs Land Development
Plan did not occur until Marchi April 1998 at which time those Plans were able to be recorded and
settlement was held at which time Plaintiff purchased Lot No. 16 at a settlement held on April 15,
1998, Plaintiffs Land Development Plan was recorded in the Cumberland County Recorder of
Deeds Office on April 14, 1998 at Plan Book 76, Page 96,
37. Even though conditional approval of Plaintiffs Plan, absent Defendant's fraud, was
received (but subsequently revoked) in late August 1997 it still took Defendant until April to
complete the Plan approval process.
38. Plaintiff believes and hereby avers that between September of 1997 and April 1998
Defendant continued to breach its contract with the Plaintiff for reasons set forth in paragraph 28
above generally and specifically including but not necessarily limited to the following:
a. Failing to appropriately process, submit and complete in a diligent and timely
fashion information for approvals and applications for permits for slope reports, wet lands
certifications, storm water management facilities, land disturbance permits, location of on and off
site easements for sewer lines and other required facilities.
b. Making errors on the legal description and lot line locations for Lot No. 16.
c. On the Mowery Plan, placing a sewer line across lands of others without
notifying necessary parties that such was done thereby denying public sewer to Plaintiffs Project.
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39, As a result of the lack of diligence and breaches of contract above set forth further
delays resulted in the approval of Plaintiffs Plan until April 1998 which further resulted in Plaintiff
being unable to proceed with its project.
40. As a result of improperly placing a sewer line of the Mowery Plan, of which Plan
Plaintiff was an intended beneficiary, ultimate delays were experienced by Plaintiff in that the
Township refused to issue final occupancy pennits to Plaintiff because the availability of public
sewer to the Project was not settled until the easement question was resolved.
41. Based upon the foregoing facts, Defendant breached its contract with Plaintiff and
as a result Plaintiff has sustained loss as set forth in paragraph 28 above.
WHEREFORE, Plaintiff requests this Honorable Court to award damages in its favor and
against Defendant in the amount of$872,750.00 plus costs and interest for the recovery of which this
suit is hereby filed.
COUNT III - FRAUD
42. Paragraphs 1 through 41 are incorporated herein by reference as though set forth at
length.
43, As part ofits contractual obligations with Plaintiff, Defendant was to provide and
file with the Township various sets of plans and other documents which were signed and sealed by
professional landscape architects, a registered engineer, and a registered land surveyor. In
September 1997, shortly after Plaintiffs final land development plan was approved which would
have allowed construction to move forward pending Mowery's subdivision plan approval and
purchase of the property, Strong contacted Mowery asking that land be staked out in accordance with
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the Agreement of Plaintiff and Mowery,
43. Mowery, it is believed and therefore averred, then contacted Fisher to stake out
Plainti ffs lot. Upon Fisher's reviewing the then proposed subdivision plan and final land
development plan of Mowery and Plaintiff respectively, on both of which his signature appeared,
Fisher infonned the Township that his signature was forged on those documents.
44, It is believed and therefore averred the forgery was done at the hands of Bachik and
that Bachik specifically forged the signature of Fisher, a registered surveyor on Plaintiffs land
development plan.
45. Accordingly, when the forgery was brought to the attention ofthe Township, the Plan
approval was voided, As a result of said forgery, Plaintiff incurred significant costs which it would
not have incurred but for the forgery, including the cost required to resubmit plans for approval and
other costs referred to above. By submitting plans with forged seal and/or signature, Defendant was
representing to Plaintiff and to Silver Spring Township that said Plans had been reviewed and
approved by the individuals indicated on the face of the Plans,
46. In as much as it was later admitted that several seals/signatures were forged,
Defendant made misrepresentations to Plaintiff which he knew to be false.
47. Said representations were made fraudulently, with an attempt and intent to deceive.
48. Plaintiff justifiably and substantially relied on the misrepresentations during the
course of the project and as a result, Plaintiff has been damaged as aforementioned. Additionally,
as a result of the fraudulent misrepresentations referenced above, Plaintiffis entitled to the recovery
of punitive damages as a result ofthe improper motives and conduct of Defendant.
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49, Plaintiff incurrcd significant costs to rc-engineer and redcsign work that should
propcrly havc becn pcrformcd by Dcfcndant in the first instance,
50. Plaintiff has incurred significant time, expenses and attorneys fees involved in
correcting all Black's errors. Plaintiff has lost significant credibility with several Silver Spring
Township officials, which has impacted it's ability to obtain necessary approvals for continued
construction, and will do so in the future,
51. The marketability of the condominium units has been adversely impacted in that
throughout the time from September of 1997 until January of 1999 purchasers who expressed
interest in purchasing a unit informed Plaintiffs representatives that they did not want to buy due
to significant adverse publicity which the development received in newspapers of general circulation
i~ the area. In fact, some perspective purchasers declined to express continued interest in the
property until issues involving sewer availability and occupancy permits were all resolved. Those
possible purchasers have been lost and thus sales have been lost.
52. As a result of the fraud of the Defendant as outlined above, Defendant believes and
hereby avers it is entitled to punitive damages for the wilful, egregious and wilful misconduct of the
Defendant.
53. As a result of the fraud of the Defendant, Plaintiff as sustained loss in amount set
forth in paragraph 28 above.
53. As a result of the fraud of the Defendant, Plaintiff believes and hereby avers it is
entitled to attorneys fees under Pennsylvania law,
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this project:
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A.
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H. Edwnrd Black and . sociates, P.C. will meet with you 10 review program elements associated
with the proposed sit development of this parcel. The pUlpose in the programming session will be
to confum the number of total dup lell: units desired, tOtal 101 acreage, proposed road alignments,
slonn drainage, sanit sewer and other utility requirements. We cOllSider this programming
session essentiallo d fining those elements to be included in a refined Sketch Plan.
B.
H. Edward I3lack and sociates, P.C. will utilize topographic and planimetric survey infonnation
already in our posses n, as well as elements a$$ociated with the programming session to derme,
in final form, a Sketc lan.for the development of the proposed retirement comxnlmity. The refined
Sketch Plan will out!. proposed horizontal and vertical3lTangements ofduplelC units, roadways,
driveways, common parking, and walkway areas and will [he basis from which future COllStruction
draWings will be developed.
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C. MEETTNC .lITH THF. OWNER
H. Edward Black an1 Associates, P.C, will present the refined Sketch Plan associated with the
proposed retiremeot~. munity to you in order to solieitl'roposed confonnanee with program
items prior to presen g plans to the Silver Spring Township. This meeting is intended to solicit
comments associated ith the refined sketch plan iIlld to confirm the fact that the development
scheme is consistent'Mth anticipated program elements associated with the project.
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D. REVISED S~EMATIC PT.AN
H. Edward 'Black and.Asso-:iates, P .C. will revise the schematic design documents associated with
this parcel based upo~ose comments received in item "C" above in preparation for a'Sketch Plan
tt".. by fu. ,"", ~.... T,_", ,_ c_.;,.
E. SKETCH PJ!N PRESENTATION
..
Given the nature of~proposed development as a private retirement community, we consider it
essential to meet wiilf the Silver Spring Township Planning Commission to receive input on
schematic plans prior. to proceeding with Preliminary Land Development Plan preparation. It is
anticipated that this lAeeting would take place as part of the Silver Spring Township Planning
Commission's Wor1clHop Meeting to review, and discuss in detail, a proposal for a retirement
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of Environme?t Resources, Erosion Control Rules and Regulations, Title 25, Part I(c). Act
II, Chapter 102 "Erosion Control" as well as the Silver Spring Township Stonnwater
Ordinances, i
s.
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and Associates, P .C, will provide civil engineering services to calculate
the stonnater' off quantities from the site at a pre and post development environment,
thereby stzing a ! pipes, swales, roofdrain connections and other structures necessary to
convey stonn~ er runoff to the receiving pipes along the proposed road system. We will
utilize recogW7. Permsylvania Department of Transportation and Conservation District
Standards for $t nnwater Design.
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Anticipating th a development of this size will be built in phases, we will work with you
to develop a ph ing plan to provide for the logical development of this tract. This will
include phasing f proposed grading, roadway improvements and utility connections. The
phasing plan wil also be used as a tool to inform Silver Spring Township representatives
as to the time e associated with site construction. .
10. MUNT
H. Edward Blac and Associates, P.C. will submit Preliminary Land Development Plans to
Silver Spring T hip for their review. The plan submission date is 21 days prior to the
Planning Co~sion meeting for each month, which is on the second Thursday of each
month. Once th' submission has been reviewed and recommended for approval by the
Township PllIl1I1i1g Commission, it will be forwarded to the Township Board of Supervisors
which meets on t,e fourth Thursday of each month. H. Edward Black and Associates, P .C.
will make a prin ipal of Out firm available to attend a total offout (4) meetings with Silver
Spring Townshi authorities. We suggest that a maximum of two (2) meetings will be with
the Township PI ing Commission and that tWo (2) meetings will be' with the Township
Board of Superv ors. .
G.
T AN PREPARATION
H. Edward Black and sociates, P.C. will prepare and submit Final Land Development Plans to
the Silver Spring To ship Planning Commission, The Silver Spring Township Board of
Supervisors, The Cum r1and County Planning Co=ission, and The Cumberland County Soil
Conservation District. e Final Land Development Plans will be prepared for the first phase of
the development only, d will be based upon conditions of approval of the Preliminary Land
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15:29 FAX ili' 2389325 'POWELL TRACIIT!!AN III 008
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Development Plans.~e ~nvision utilizing the Preliminlll)' Land Development Plans as the basiS:
for this submission, d incorporating through AUTOCAD methods, minor revisions to title blocks,
sheet size (for record ng pwposes) and appropriate phase delineations for, roadways and utilities.
The Final plans sublTjitted will follow the same format as the Prelimihlll)' Plan submission. H.
Edward B lack and Associates, P.CO will provide a principal of the firm to attend an anticipated three
(3) meetings with Sil~er Spring Township Of1:icials, The first meeting would be with the Township
Planning CommissiOlj. at their regularly scheduled workshop: the second at their regularly scheduled
meeting; and the third at the Board of Supervisors regularly scheduled meeting.
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H. CONSTRUCTION PROCESS - SURVF;Y STAKF:OTJT
H. Edward Black and Associates, P.e. will coordinate the efforts of the Registered Surveyor
responsible for the project to provide site layout services associat~d with all streetS, proposed
building stakeouts, legal descriptions of individual parcels, and "as-built" dmwings related to post-
construction completion. It should be noted that all costs associated with survey stakeout are
estimates only, and can only be defmed in final form once the total nubmer of units have been
established, the total number of catch basins, lineal feet of pipe, lineal feet of roadway, linea! feet
of sanitary sewer, and number of manholes have been determined. It should also be noted that if
the development is proposed to be phased over a period of years, that the "as-built" drawings
associated with the tocal development may change through time. For t!Us reason, we are happy to
provide an estimate associated with these costs, but reserve the right t<l redefine the proposal of
services as Final Plans are approved and work progresses. Those individual services are defined
as follows:
1. .LA YOUT OF PROPOSED STRF::ETS
The services of a professional registered land surveyor will be coordinated by H. Edward
Black and Associates, P.C. for the purposes of laying out center lines ofall proposed streets
associated with this development This stakeout will include horizontal and vertical controls
for the proposed road alignment and the cost associated with these services are limited to the
initial stakeout of the proposed alignment It; during the construction process, cont~ols are
cWmaged by the contractor, the replacement of those controls are not included in the scope
. of this proposal, and shall be considered additional costs related to the project.
2. l'RQf.OSED BUTLDTNG STAKEOUT
H. Edward Black and Associates. P .C, will coordinate the efforts of a Professional
Registered Land Surveyor to provide vertical and horizontal stakeout for all proposed
buildings associated with Phase I of the development, This stakeout will be limited to
setting vertical' and horizontal controls for comers of buildings and establishing first floor
elevations for each unit. The scope oflhis proposal provides for the initial stakeout of all
units, and any grade or location stakes damaged during the construction process that require
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NOW THEREFORE, WITNESSETH, that for and in consideration of the foregoing
and intending to be legally bound hereby, the parties do agree as follows:
1. Fonnation of Joint Venture: The parties hereto, Heisey, Kauffmans and Strong
hereby form a Joint Venture (Venture), upon the terms and conditions herein set forth.
2. Name of Venture: The name of the Venture shall be DD & K, Inc.
3. Purpo~es of the Venture: The purposes of the Venture are as follows:
A. To purchase or otherwise acquire the Property. It is the intent of the Joint
Venturers that Strong and Heisey shall engage in such negotiations as are necessary to acquire the
said Property and shall present to the Joint Venturers, when requested, information and
documentation indicating the status of the said Property and the negotiations.
B. To develop and improve the Property.
C. To operate, maintain, lease, sell or otherwise dispose of the Property, in
whole or in part and the improvements made thereon.
D. To develop the same in the Condominium form of ownership as a
Retirement Community
E. To carry on any other activities necessary or incidental to the foregoing
purposes, including the establishment of offices and the employment of personnel, contractors and
subcontractors.
F. The Venture shall not engage in any other business activity without the
express written consent of Heisey, Kauffmans and Strong.
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4. Respnnsihilities of Heisey:
A. Consulting and assisting in the preparation of .a Master Plan for the
Development of and improvements to the Property, including the selection of architects, engineers
and other professionals required to accomplish the stated purposes of the Joint Venture.
B. Assisting in the preparation for the development of the Property including
the securing of all necessary governmental pennits, the construction of roads and installation of
utilities.
C. The perfonnance of all conStruction work, including the furnishing of all
labor materials and equipment necessary to build finished residential units including grading,
leveling, installation of utility lrunk lines, streets, curbs, gutlers and all other onsite improvements.
D. Shall furnish periodically as may reasonably be requested by the other
parties hereto a written report or reports disclosing in reasonable detail the status and progress of the
project including without limitation receipt~ and disbursements, sales figures, construction costs and
scheduling current financial requirements.
E. To insure that all receipts and documents relating to the Venture be done
in the name of the Venture and that all monies received in respect thereof be paid to the account of
the Venture.
It is agreed by the Joint Venturers that David G. Heisey, Inc., Contractor shall be the
exclusive builder for all improvements to be erected on the Property unless David G. Heisey, Inc.
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otherwise consents thereto in writing. Concerning the price at which units and improvements are
to be sold, Heisey shall have the right to reasonably establish the price of any unit or improvement.
In the event that the Joint Venturers disagree on the price so determined by Heisey, the price will
be set at Heisey's cost of buildin::: the unit or improvements plus 12%. In the event extras are
negotiated with any purchaser of .a unit the cost thereof shall be separately determined and paid to
David G. Heisey, Inc.
5. Rp.sponsihilitip.s of Strong: Strong shall be responsible for the foIlowing:
A. To assist in the preparation of the Plan for the development of and
improvements to the Property including the selection of architects and engineers and other
professionals required to accomplish the stated purposes of the Joint Venture.
B. To assist in the preparation for the development of the Property including
the securing of all necessary governmental permits and approvals.
C. The sale of improved or constructed residential units including the
formulation of advertising and other promotional activities through television, radio and other media
as may be necessary.
D. The formulation and implementation of the Development Program to
include the attraction of prospective buyers and management of completed improvements.
E. The operation, maintenance, leasing, sale or other disposition of the
property in whole or in part and the improvements thereon.
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F. The development of an estimated operating statement of profit and loss
for each unit to be developed, estimated costs and income and cash flow for each unit.
G. ShaIl furnish periodically as may reasonably be requested by the other
parties hereto a written report or reports disclosing in r~_~onable detail the status and progress of the
project including without limitation receipts and disbursements, sales figures, construction costs,
scheduling current financial requirements
H. To insure that all receipts and documents relating to the Venture be done
in the name of the Venture and that all monies received in respect thereof be paid to the account of
the Venture.
6. EmjP.Ct Managers: Heisey and Strong, in accordance with the foregoing list of their
duties, shall act as project managers for the Joint Venture.
7. Paymp.nts to ProjP.ct Mangers:
A. Except to be reimbursed for any expenses made by him on behalf
of the Joint Venture during any stage of the development process, Heisey shall not be entitled to
receive, nor shall the Joint Venture be obligated to pay him, any sum of money for acting as a project
manager. It is understood and agreed that David G. Heisey is the owner of David G. Heisey, Inc.
and as such he will benefit by being the exclusive builder within the Development during the entire
term of the project.
B. Strong shall be paid by the Joint Venture the sum of Forty Thousand
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to the lien of any bank financing obtained. It is further agreed that the Note and Mortgage will
contain terms that reflect that it is binding on the heirs and assigns of Kauffmans but that it shaIl be
repaid in any event on or before five (5) years form the date of the obligation.
a Pennsylvania Business Corporation which shaIl be the purchaser of the Property and the
9. Incoq'lorntion: It is agreed by the parties hereto that the Joint Venturers shall form
Developer.. When the Corporation is formed each of the Joint Venturers, namely Heisey as one
party, Kauffmans together as a second party and Strong as the third party shall each be co-equal
shareholders of the Corporation. The incorporation documentation shaIl contain a "Buy Sell"
arrangement between the shareholders which will provide that if a shareholder becomes deceased
or determines to withdraw that the shareholder or their heirs may keep the shares or if they choose
not to keep the shares, must offer their shares first to the Corporation and if the Corporation declines
to purchase then to any other shareholder. If the Corporation and the other shareholders do not then
agree to purchase the deceased or withdrawing shareholder's shares, the shareholder must or the
shareholder's Estate/heirs and assigns must remain the owner of the shares until five (5) years from
the date of the settlement for the land. Thereafter the shares must first be offered to the Corporation
and the shareholders and if the Corporation and shareholders do not wish to purchase them then the
withdrawing or deceased shareholder shall be authorized to seIl the shares to any other person.
and Strong shaIl be the sole and exclusive Management Representatives to engage in the daily
10. Management Rp-sponsihilities; Throughout the duration of the Venture. Heisey
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management of the Venture on behalf of the parties hereto. At all times. Kauffmans shall have the
right and privilege to inquire of Heisey and Strong as to the current status of the Venture and the
status of the development of the Property. No other management shall be used without the written
consent of all parties hereto.
11. Initial Capital: Initial purchase money capital shaIl be the $500,000.00 to be
supplied by Kauffmans and the balance shall be obtained through bank financing to be agreed upon
by the Joint Venturers. Any funds which are required to be expended from the date of the execution
hereof and the execution of the Agreement of Sale through the date of the settlement and purchase
of the land shall be advanced by Heisey and Strong who shall be reimbursed for same at the closing.
Kauffmans shaIl be under no obligation to advance any funds except for the $500,000.00 unless
losses are sustained in which case they shall pay one-third thereof.
12. Interests in Venture: The parties have agreed herein to form a Corporation in
which they will each be one-third owners. As S', :h, the parties shall equally share in the net profits
and losses of the Venture in accordance with their equal one-third interest~.
13. Title to Prnperty of the Venhlre: The title to the Property of the Venture shall be
held in the name of the Corporation to be formed and to be known as DD & K, Inc. Any and all
other property of any kind whether real or personal which shall be owned, held, operated or
developed by the Venture shall be owned, held, operated or developed in the name of the said
Corporation solely for the benefit of the Venture pursuant to the terms, conditions and provisions
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of this Agreement.
14. Covenants against Assignments: The respective interests in the Venture of the
parties shall not be transferred or assigned in whole or in part.
15. Accounting anll Fiscal Year: Accurate books and accounts shall be kept by the
Venture showing all of its assets, liabilities, operations, transactions and financial condition. Strong
shall keep or cause the books and accounts to be kept. As soon as practible at the end of each fiscal
year of the Venture (which shall be January 1 to December 31 of each year) a general accounting of
all shall be taken and made by the use of appropriaie accounting standards covering the assets,
properties, liabilities and worth of the Venture in its dealings, transactions and operations during the
preceding fiscal year. A full report of same shall be furnished to each party to the Joint Venture.
16. Term of Venture: This Venture shall continue until all of the Property acquired
by the Venture is developed and sold or otherwise disposed of or until terminated in writing by all
of the parties. In the event development of the Property is delayed or terminated by any of the events
listed in the next sentence, then the parties shaIl be required to meet and discuss a specific
termination date. The events referred to and provided for in the preceding sentence are strikes,
lockouts, work stoppages, war, riot, insurrections, terrorism, sequestration by government, civil
commotions, fire, flood, earthquake, act of God, or other causes beyond the control of the parties.
17. Contingr.ncip_s: It is agreed to by the parties hereto that in the event Kauffmans
cannot obtain bank financing through a refinancing of assets owned by them to obtain the
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Commonwealth of Pennsylvania.
21. nishihntion.~ on termination; Upon termination of the Venture, a final audit shall
be made by a mutually agreeable Accountant and all of the property and assets of the Venture shall
be distributed as follows:
A. All of the property and assets, if any, other than cash, shall be sold or
collected and turned into cash or purchase money obligations within a period of three years from the
date of such termination. Heisey, Kauffmans and Strong shall have the right to bid on and purchase
any or all of the property and assets being sold,
B. All of the debts and obligations of the Venture on which the joint venture
is separately and personally liable or on which Heisey, Kauffmans and Strong are separately and
personally liable shall be paid in full,
C. The remaining cash and other property, if any, shall be distributed to the
parties as previously provided.
22. llispnte Rp..~ollltion: Any dispute controversy or claim arising out of or under this
Agreement or its performance between the parties hereto shall first be negotiated by the parties, and
if an acceptable resolution does not result the exclusive remedy for the resolution of same shall be
submission to Arbitration. Each party shaU select an Arbitrator within 15 days after notice by the
complaining party. The three Arbitrators so chosen shall meet at the earliest possible agreed upon
time to hear the controversy and the decision of a majority of the Arbitrators will be final and
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binding upon the parties. If any party fails, refuses or neglects to appoint an Arbitrator any party
may petition the Court of Cornmon Pleas of Cumberland County, Pennsylvania to appoint an
Arbitrator.
23. T .iahility:
A. The liability of the Venture or of Heisey, Kauffmans and Strong arising
out of any of the activities of the Venture shall be covered by appropriate policies of insurance to
be purchased by the Venture.
B. In the event that any liabilitY shall not be adequately covered by insurance,
the uninsured liability shall be satisfied out of the assets of the Joint Venture.
C. Heisey, Kauffmans and Strong shall each be indemnified by the other and
held harmless against and from all claims, demands, actions, and rights of action which shall or may
arise by virtue of anything done or omitted to be done by the other (through or by agents, employees,
or other representatives) outside the scope of, or in breach of the terms of, this agreement provided
the other shall be promptly notified of the existence of the claim, demand, action, or right of action
and shall be given reasonable opportunity to participate in the defense thereof.
D. Nothing contained in this Agreement shall be construed to constitute either
party the general partner of the other party or the agent of the other party other than in connection
with the activities included within the scope of the Venture nor in any manner to limit the parties in
the carrying on of their otller respective businesses or activities.
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K:\OG1\lB10G\LOT16~8c.97\July 7, 1997
AGREEMENT OF SALE
THIS AGREEMENT is entered into this ,17-.. day of July,
1997, by and between RSM ASSOCIATES, L.P., a Pennsylvania limited
partnership (formerly known as Ritner Park Associates), having
its principal place of business located at 625 Hamilton Street,
Carlisle, Pennsylvania 17013 ("Seller");
AND
DD&K, INC., a Pennsylvania Corporation, 1898 North Market
Street, Elizabethtown, Pennsylvania 17022 ("Purchaser").
BACKGROUND
Seller desires to sell to Pur' chaser , and Purchaser desires
to purchase, that certain tract or parcel of land, situated in
Silver Spring Township, Cumberland County, Pennsylvania,
consisting of 28.62 acres, more or less, being known as Lot 16 in
the Plan of Subdivision of the Bent Creek Business Center (the
"Plan") and being more particularly described in Exhibit "A"
attached hereto, together with the improvements located thereon,
if any, which parcel of land and improvements are hereinafter
collectively referred to as the "Property."
NOW THEREFORE, in consideration of the foregoing recital,
which is made a part of this Agreement, and the mutual promises,
agreements and covenants herein contained, and intending to be
legally bound hereby, Seller and Purchaser agree as follows:
1. Sale and Purchase. Subject to the terms and conditions
of this Agreement, Seller agrees to sell and convey to Purchaser,
and Purchaser agrees to purchase and acquire from Seller, all of
Seller's right, title and interest in and to the Property.
2. Title. The Property shall be conveyed to Purchaser by
special warranty deed, conveying good and marketable title, free
and clear of all liens and encumbrances, except for those set
forth in Exhibit "B" attached hereto, and any liens or
encumbrances created after the date of this Agreement which have
the prior approval of Purchaser. Seller represents and covenants
that Seller presently owns, or will have as of Settlement, good
and marketable title in and to the Property (subject to the
aforesaid) and is, or will at Settlement, be duly empowered to
convey same in accordance with this Agreement. Such title to the
Property shall be conclusively evidenced by the availability of
title insurance issued at regular rates by a reputable title
insurance company authQrized to do business in Pennsylvania. The
cost of any and all such title insurance shall be paid by Pur-
chaser. Seller agrees, at its expense, to provide a certified
survey of the Property which will form the basis for the deed,
and which will include metes and bounds descriptions and a
certification of the total acreage. It is expressly agreed,
however, that if Seller is unable to deliver at Settlement the
quality of title represented above and required herein, other
than as a result of the wilful misconduct of Seller, Purchaser's
sole right and remedy shall be to take such title as Seller can
deliver without reduction in purchase price or recovery of
damages, or to terminate this Agreement by notice to Seller prior
to Settlement, whereupon neither party shall have any further
liability or obligation to the other hereunder, except that ,
Seller shall be liable to Purchaser for Purchaser's actual and
reasonable costs and expenses incurred in pursuing purchase of
the Property under this Agreement up to a maximum of Twenty
Thousand Dollars ($20,000), less amounts recovered from Seller
under any other basis.
3. Settlement. Settlement hereunder shall take place at
the law offices of McNees, Wallace & Nurick, located at 100 Pine
Street, Harrisburg, Pennsylvania, or at such other mutually
agreeable location in Pennsylvania, on a date and at a time
reasonably acceptable to Seller and Purchaser, and within fifteen
(15) days after all conditions under Paragraphs 7 and 8 are
satisfied or waived, but in no event later than August 31, 1997
(the "Settlement"). The parties may extend the Settlement date
at any time by mutual written agreement and Purchaser shall have
the option to extend the time for settlement under this Agreement
as provided for in subparagraph 8(k) below. At Settlement, the
Price shall be paid and Seller and Purchaser shall execute and
deliver all documents, instruments and agreements provided for
herein and all others reasonably required to consummate the
transactions provided for herein,
4. Possession. Possession of the Property shall be
delivered to Purchaser at the time of Settlement. Prior to
Settlement, Purchaser shall have the right to enter upon the
Property at reasonable times, with the prior written consent of
Seller, which shall not be unreasonably withheld, for the purpose
of making such surveys, soil tests, engineering studies and other
investigations as Purchaser may reasonably require.
Purchaser shall bear all cost, expense, liability and
responsibility for entering upon the Property, and for all
actions or inaction thereon by or for Purchaser, its agents,
contractors and/or representatives, prior to Settlement hereunder
and Purchaser shall promptly repair any and all damage to or
affecting the Property caused by same. Purchaser shall
indemnify, diligently defend and hold Seller (its partners,
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agents, contractors and representatives) harmless from and
against any and all claims, damages, loss, expenses, costs and
liabilities resulting from or arising out of or in connection
with Purchaser's entry upon the Property and any and all of the
aforesaid action or inaction thereon, regardless of when same
Occur or when notice thereof is received or given. The
indemnification shall be due and payable upon demand. If this
Agreement is terminated for any reason, Purchaser shall provide
Seller within ten (10) days of termination with copies of all
surveys, soil tests and other engineering reports accumulated by
or for Purchaser with respect to the Property, without cost or
expense to Seller, unless the termination was by Purchaser as a
result of Seller's default under this Agreement.
5. Purchase Price. The total purchase price and
consideration for the Property shall be Eight Hundred One
Thousand Three HundJ:ed Sixty Dollars ($801,360) plus any
additional amount payable under (c) below (the "Price"). The
Price shall be due and payable as follows:
a. The amount of Twenty Thousand Dollars ($20,000)
(the "Deposit") shall be paid by Certified or Cashier's
check made payable to Seller and delivered to Seller Upon
execution of this Agreement. This Deposit shall be retained
by Seller in a separately designated interest-bearing bank
account with the social security number of one of the
Purchasers and the Deposit, plus all interest actually
earned thereon, shall be applied to the Price at Settlement,
or if Settlement does not occur, the Deposit and any
interest earned thereon shall be retained by Seller as
provided in subparagraph 8(k) below in the case of an
extension and shall be held by the Seller in the same
account until resolution and payment of all amounts owing to
Seller, in the event of a breach by Purchaser, or shall be
returned to Purchaser, with any interest thereon actually
earned, in the event of termination of this Agreement
without breach by Purchaser. Any and all interest shall be
kept in the account and added to the Deposit. Seller is not
holding the Deposit as an escrow agent or other fiduciary.
b. The remaining Seven Hundred Eighty One Thousand
Three Hundred Sixty Dollars ($781,360) (less any interest
paid to Seller with the Deposit) shall be due and payable in
one sum at Settlement and shall be paid by Certified or
Cashier's Check made payable to Seller and delivered to
Seller at Settlement or by funds wired to Seller's
designated account at Settlement, with no wire completed
until Bank confirmation to Seller. Payment may be made by
wire transfer at Settlement only if Seller is so notified at
least two business days prior to Settlement.
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c. As an additional part of the Price, if the number
of units that Purchaser builds or obtains approval to build
on the Property exceeds 100, Purchaser shall pay to Seller
an amount equal to the additional amount owing by Seller to
Silver Spring Township under the agreement with the Township
provided for in Section 7(a) below for or with respect to
off-site improvements allocated based on estimated
additional trip generation attributable to the additional
units, up to a maximum of Two Thousand Dollars ($2,000.00).
d. All payments shall be made in immediately
available federal funds.
6. Adiustments. Real estate taxes, water, sewer and other
current lienable charges, if any, shall be apportioned as of the
date of Settlement on the basis of the fiscal year or other
period of the applicable charging, assessing or taxing body,
Subject to paragraph 7(c) herein, Purchaser shall be responsible
for any and all benefit assessments and other fees or charges
assessed against the Property subsequent to the date of
Settlement, or assessed before Settlement but applicable to any
period of time after Settlement, including without limitation any
and all sewer and water connection fees, except chat Seller shall
be responsible for and shall pay all water and sewer assessments,
impact fees, and costs of required improvements, assessed as a
result of the subdivision of the Bent Creek Business Center
and/or the conveyance provided for herein, except EDU charge and
connection fees. Purchaser is to pay all recreational fees and
assessments, provided, however, Purchaser may contest any and all
such recreational fees and assessments by appropriate proceedings
and in good faith, but only if such proceedings stay and prevent
any collection or execution for collection of same and provided
that said proceedings and nonpayment do not result in any lien,
restriction or encumbrance, or any other adverse consequence, for
any or all of the properties in or constituting the Bent Creek
Business Center other than the Property and then only arising
after settlement between Seller and Purchaser. As of the date of
execution of this Agreement, Seller represents and warrants that
it has no notice or actual knowledge of any Assessments, (as
defined in paragraph 7(c) herein) and Seller has no actual
knowledge that any such Assessment is pending. Purchaser shall
pay all filing fees and recording costs at Settlement,
7. Conditions Precedent for Seller. This Agreement, and
performance by Seller hereunder, is expressly conditioned upon
satisfaction or written waiver by Seller of the fcllowing condi-
tions:
a. Seller shall have obtained prior to Settlement a
satisfactory executed agreement with Silver Spring Township
regarding off-site improvements and all other necessary
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approvals for the sale of the Property pursuant to the terms
hereof, if and to the extent not already obtained, with all
necessary subdivision plans recorded as required at or
before Settlement (subdivision shall be obtained at Seller's
sole cost and expense, except costs and expenses
attributable to any contemporaneous land use approval sought
by Purchaser) .
b. Seller shall have acquired good and marketable
title (legal or equitable) to the larger tract of real
estate that includes the Property subject only to liens and
encumbrances satisfactory to Seller and, with respect to the
Property, liens and encumbrances permitted in accordance
with Paragraph 2 above..
c. There are no material assessments (excluding sewer
assessments) or other fees or charges assessed against the
Property prior to Settlement (collectively the
"Assessments") which would be the responsibility of Seller.
Same shall be "material" if same in the aggregate exceed the
sum of Twenty-Five Thousand Dollars ($25,000.00), net of any
portion of such assessment paid by Purchaser.
d. There is no material adverse change in the assets,
business or financial condition of Purchaser prior to
Settlement. Purchaser shall notify Seller within five (5)
days, and in all events prior to Settlement, of any and all
events or circumstances which may constitute or be reason-
ably expected to constitute, alone or in conjunction with
other facts or circumstances, or to cause alone or with
other facts and circumstances, a mc\terial adverse change as
described in the preceding sentence.
e. All representations of Purchaser herein shall be
true and correct in all material respects when made and as
of Settlement. Purchaser shall have performed timely all
obligations and duties hereunder to be performed by
Purchaser at or before Settlement.
Except as otherwise provided in this Agreement, upon the
failure of any of the foregoing conditions precedent, Seller
shall have the absolute right to terminate this Agreement upon
written notice to that effect to Purchaser or to waive such
condition by settling. If this Agreement is terminated pursuant
to this paragraph 7, Seller and Purchaser shall have no further
liabilities or obligations hereunder, except that if Seller has
terminated only because of failure of condition 7b. above, then
Seller shall be liable to Purchaser for Purchaser's actual and
reasonable costs and expenses incurred in pursuing purchase of
the Property under this Agreement up to a maximum of Twenty
Thousand Dollars ($20,000), less amounts recovered from Seller
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under any other basis. Seller and Purchi:1fJer agree to cooperate
in obtaining, and Seller shall diligently puroue by reasonable
efforts any and all actions, thingo or itomn noccooary to satisfy
the conditions under 7a and 7b above, in 11 tillloly IlIllnner at
Seller's sole cost and expense,
8. Conditions Precedent for PUrCh\lDcr. This ^greement,
and performance by Purchaser hereunder, io expreAsly conditioned
upon satisfaction or written waiver by purchlloer of the following
conditions at or before Settlement:
a. Receipt by Purchaser of reasonably satisfactory
evidence that it will receive good ilnd marketable title in
accordance with paragraph 2 above, which Purchaser shall,
diligently pursue beginning within fifteen (15) days after
the date hereof and Purchaser must notify Seller of any
nonsatisfaction of this condition on or before July 31,
1997;
b. Receipt of a survey provided by Seller, disclosing
no material encroachments, gaps or other matters which would
make the Property different in any material respect than
that described in Exhibit "^," attached hereto, and
disclosing the location of all utilities, rights-of-way,
easements and encroachments on the Property, to the extent
known or discoverable with reasonable efforts, which
Purchaser shall diligently review and approve or disapprove
within fifteen (15) days after receipt;
c. Receipt by Purchaser of reasonably satisfactory
evidence that the Property is or will in a timely manner be
served by water, sewer, storm sewer, gas, telephone, cable
television and electric services, which evidence Purchaser
shall request from the appropriate parties within fifteen
(15) days after the date hereof and Purchaser must notify
Seller of any nonsatisfaction of this condition on or before
July 31, 1997;
d. Receipt by Purchaser of reasonably satisfactory
evidence that there are no Environmental Claims or Materials
of Environmental Concern, as such terms are defined in
paragraph 10 (d), affecting the Property, including without
limitation the presence of hazardous or toxic substances or
existing or past failure to comply with any local, state or
federal law relating to the Property, which study and report
Purchaser shall request within fifteen (15) days after the
date hereof and Purchaser must notify Seller of any
nonsatisfaction of this condition on or before July 31,
1997;
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e. All representations of Seller herein shall be true
and correct in all material respects on the date hereof and
as of Settlement. Seller shall have performed timely all
duties and obligations hereunder to be performed by Seller
at or before Settlement;
f. The Purchaser shall have obtained a legally
binding commitment for construction financing for its
proposed construction for the intended use of the Property
in an amount not less than $1,200,000, providing for
interest at a rate not in excess of 10% per annum,
compounded daily or less frequently, and otherwise upon
terms reasonably satisfactory to Purchaser and Purchaser
must notify Seller of any nonsatisfaction of this condition
on or before July 31, 1997;
g. The Purchaser shall have received an allocation
for the Property of sufficient sewage capacity for its
currently intended use of the Property, requiring a payment
for each Equivalent Dwelling Unit ("EDU") not in excess of
$4,200, and public utilities, including water, electricity,
and telephone service in reasonably sufficient capacity for
the intended use of the Property. Whenever used in this
Agreement, the "intended use of the Property" shall mean the
development of approximately 100 units (50 buildings)
intended for senior housing condominiums as described and
indicated in the plans attached hereto as Exhibit "C";
h. Seller shall have demolished and removed the old
house upon the Property and will remove any heating fuel
tank located therein, as provided for in Paragraph 11 below;
i. The Purchaser shall have received soil tests and
other examinations performed by or at the direction of the
Purchaser revealing that the Property is reasonably
satisfactory for the intended use of the Property.
Purchaser shall reC'lest all such soil tests and other
examinations within fifteen (15) days after the date hereof
and Purchaser must notify Seller of any nonsatisfaction of
this condition on or before July 31, 1997;
j. The Property shall not have suffered any material
adverse damage or change from flooding, erosion or other
acts of nature or Acts of God that would prevent or
materially interfere with the intended use of the Property;
(k) The Purchaser shall have obtained final approval
by the Township of the land use development plan for the
intended use of the Property, which shall have been
submitted by Purchaser not later than fifteen (15) days.
after final Township approval of the Plan; provided that if
- 7 -
the condition in this subparagraph (k) is not satisfied by
August 31, 1997, Purchaser may elect to continue this
Agreement and defer settlement hereunder to a date not later
than November 3D, 1997 by giving notice to such effect to
Seller on or before August 31, 1997 and agreeing that the
Deposit shall be released and paid to Seller upon notice
from Purchaser of such extension with the Deposit treated as
a payment for such extension, but applied against the
Purchase Price as provided herein if settlement does occur
pursuant to this Agreement within such extension period; and
(1) On or before August 22, 1997, Seller shall have
acquired the larger tract so as to satisfy the condition in
subparagraph 7(b) above.or Seller shall have waived such,
condition by notice to Purchaser.
Except as otherwise provided in this Agreement, upon the
failure of any of the foregoing conditions precedent, with notice
thereof to Seller within any stated time period (or if none is
stated, then by settlement) Purchaser shall have the absolute
right to terminate this Agreement prior to Settlement upon
written notice to that effect to Seller, If this Agreement is
properly terminated pursuant to this paragraph S, Seller and
Purchaser shall have no further obligations or liabilities
hereunder. Purchaser and Seller both agree to cooperate in
obtaining, and Purchaser shall diligently pursue, by reasonable
efforts, any and all actions, things or items necessary to
satisfy the conditions precedent under Sa through Sd and Sf, Sg
and Si above, in a timely manner at Purchaser's sole cost and
expense.
9. Condition of Propertv. Subject to paragraphs 2, 10 and
11 hereof, and without waiver of any conditions precedent,
Purchaser represents, warrants and agrees that it has inspected
and familiarized itself with the Property, making or having made
all inspections, studies and surveys Purchaser and its advisors,
contractors, and/or representatives deem necessary or
appropriate, and, if Settlement occurs, Purchaser accepts the
Property "as-is" and "where-is." EXCEPT AS OTHERWISE EXPRESSLY
SET FORTH HEREIN, SELLER HAS NOT, DIRECTLY OR THROUGH OTHERS,
MADE ANY REPRESENTATIONS, WARRANTIES OR AGREEMENTS, EXPRESS OR
IMPLIED, OF ANY KIND WHATSOEVER, CONCERNING THE CONDITION OF THE
PROPERTY, THE USABILITY OR SUITABILITY OF THE PROPERTY FOR ANY
PARTICULAR PURPOSE OR FOR ANY PURPOSE, OR OTHERWISE ABOUT OR
CONCERNING THE PROPERTY, ITS USE OR VALUE, AND, IF SETTLEMENT
OCCURS, PURCHASER SPECIFICALLY ACCEPTS ANY AND ALL RISKS THAT
PURCHASER MAY NOT BE ABLE, FOR ANY REASON, TO USE THE PROPERTY OR
ANY PORTION THEREOF FOR ANY PURPOSE INTENDED OR DESIRED BY
PURCHASER.
- S -
10. Environmental Matters,
a. Compliance with LawR. To the best of Seller's
actual knowledge the Property is in full compliance with
the Environmental Laws (as hereinafter defined). Seller has
not received any notice that alleges that the Property is
not in such full compliance.
b. Pendina Claims. There is no Environmental Claim
(as hereinafter defined) pending or threatened against
Seller or, to Seller's best actual knowledge, against the
Property.
c. Environmental Studies, Seller has had prepared on
its behalf, by R. E. Wright Associates, a Phase I Study,.
("Report") of the Property, dated June, 1996 (REWEI Report
97228-1-1), and Purchaser hereby acknowledges receipt of a
copy of that Report.
Seller represents and warrants that the Report is the only
environmental study, investigation, test, evaluation and analysis
prepared by or for Seller with regard to the Property.
d, Definitions.
(1) "Environmental Claim" as used herein shall
mean written notice by any person or entity alleging
liability arising out of, based on or resulting from any
violation, or alleged violation, of any Environmental Law.
(2) "Environmental Laws" as used herein shall
mean all federal, state and local laws and regulations
relating to pollution or protection of human health from
contaminants in the environment or to protecting the
environment itself, including without limitation, laws and
regulations relating to emissions, discharges, releases or
threatened releases of Materials of Environmental Concern,
or otherwise relating to the use, treatment, storage,
disposal, transport or handling of Materials of
Environmental Concern.
(3) "Materials of Environmental Concern" as used
herein shall mean any and all substances which are any of
the following: (a) explosives, oil and petroleum products
and byproducts, urea formaldehyde, radon, radioactive
materials, polychlorinated biphenyls or related or similar
materials ("PCBs"), asbestos or material containing
asbestos; or (b) defined, designated or listed as a
"Hazardous Substance," "Regulated Substance," "Hazardous
Material," "Hazardous Waste," "Toxic Waste," "Toxic
Material," "Contaminants" or "Industrial Waste," or defined,
designated or listed in a similar manner, under the (i)
- 9 -
"
Clean Water Act, 33 U,S.C. Section 1251 et sea.; (ii)
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601 et sea.; (iii)
Hazardous Materials Transportation Act, 49 U.S.C, Section
1801 et seg,; (iv) Resource Conservation and Recovery Act,
42 U.S.C. Section 6901 et seq.; (v) Pennsylvania Solid Waste
Management Act, Pa. Stat, Ann, tit. 35 Section 6018.103;
(vi) Pennsylvania Clean Streams Law, Pa. Stat. Ann. tit. 35,
691.1 et seq,; (vii) Pennsylvania Hazardous Substances Site
Clean-up Act, Pa. Stat. Ann. tit. 35, Section 6020.101 ~
seq.: or (viii) any other Environmental Laws.
11. Re resentations Warranties and Covenants of Seller.
Seller hereby represents, warrants and covenants to and with ,
Purchaser, upon which same has relied, as follows:
a. To Seller's knowledge, after Seller's review of
the records for Cumberland County, Pennsylvania and the tax
records for Silver Spring Township, Cumberland County,
Pennsylvania, neither the Property nor any portion thereof
has received any special tax assessments of any kind that
would result in a recapture of any prior tax savings or
reductions as a result of or based on the sale contemplated
in this Agreement and/or the intended use of the Property as
stated above;
b. The Property is, or will on or before November 30,
1997, be served by water and sewer, which lines shall then
extend to a border of the Property at no cost to Purchaser.
To Seller's knOWledge, even though there is no "reservation"
of EDUs, there should now be sufficient EDUs available for
the intended use of the Property. Seller shall use
reasonable efforts to cause the applicable utilities
companies to extend telephone and electrical lines to the
Property on or. before such date, at no cost to Purchaser,
and shall request, at no cost to Seller or Purchaser, that
cable television lines be extended to the Property by such
date;
c. The Property shall, as of Settlement, be in full
compliance with all subdivision and land use development
plans and all laws, ordinances, rules, regulations, orders
and decrees relating thereto. In addition, Seller shall be
in compliance with same as to all or any other parts of the
Bent Creek Business Center to the extent any such non-
compliance by Seller would materially and adversely affect
the Property and/or the intended use of the Property;
d. Seller has posted, or will as of Settlement have
posted, all required bonds securing all improvements to the
Bent Creek Business Center as shown on the final subdivision
- 10 -
and/or land use development plan for same as approved by
Silver Spring Township, with all such improvements to be
completed by Seller or caused to be completed by Seller (to
the extent within Seller's control) in a timely manner,
reasonably satisfactory to the requiring authority;
e. No part of the Property is or constitutes wet
lands or waters of the United States or waters of the
Commonwealth of Pennsylvania such as would prevent or
materially interfere with the intended use of the Property.
f. As of settlement, Purchaser shall have access to
the Property for equipment and by September 30, 1997,
Purchaser shall have access to the Property by way of.a ,
roadway suitable for construction vehicles in all weather.
On or before November 30, 1997, Seller shall have
constructed a street providing access from the Property to
Pennsylvania Route 114, which street shall be constructed on
standards as necessary to dedicate same to Silver Spring
Township (except for final wearing course layer, to be added
later), with a traffic signal installed at such intersection
by Seller. Until the road is dedicated to the Township,
Seller will maintain the roadway and easement area as needed
for construction on Lot 16 and, if same continues after
issuance of an occupancy certificate for any building on Lot
16, in a manner consistent with the way that Township
maintains its comparable streets and roadways (except that
the final wearing course shall, in no event, be required
prior to May 31, 1998). Seller shall have also obtained or
imposed upon Lot 17 of the Plan an easement for emergency
access to Lot 16 in a precise location and upon terms
reasonably satisfactory to Seller and Purchaser. All
obligations of Seller hereunder to construct, install and/or
erect improvements shall be extended to the extent same have
been delayed by acts of nature or Acts of God, wars, riots,
civil disturbance, labor actions, strikes, boycotts or other
forces or factors beyond the reasonable control of Seller.
g. No storm water management facilities shown on any
subdivision or land use development plan as being located
upon the Property will require any maintenance by Purchaser
or will same prevent or materially interfere with the
intended use of the Property, and to Seller's knowledge no
additional storm water management facilities or easements
are now expected, except in each case as may be required for
storm water management of storm water originating on the
Property.
h, To Seller's knowledge, there is no fact or
condition existing on the Property that is reasonably
expected to cause or result in an action or proceeding at
- 11 -
law or in equity against the Property or any owner thereof
or that violates any ordinance, law, rule, regulation, order.
or decree applicable to the Property. To Seller's knowledge
there is no action, suit or proceeding pending or threatened
against or otherwise directly affecting the Property.
i. Not later than settlement, Seller shall have demolished
and removed the old house located upon the Property, at
Seller's cost and expense. In addition, Seller shall have
removed any heating fuel tank located therein in compliance
with Environmental Laws and remedied any leakage therefrom,
up to a maximum cost to Seller of Ten Thousand Dollars
($10,000) .
12. Restrictive Covenants. The development, use and future
conveyance of the Property shall be subject to the restrictions,
encumbrances and restrictive covenants in the Protective Cove-
nants Agreement, as set forth in Exhibit "D" attached hereto.
Purchaser shall execute and deliver to Seller the Protective
Covenants Agreement at Settlement. The Protective Covenants
shall be recorded and shall run with the land.
13. Realtv Transfer Tax. Purchaser and Seller shall divide
equally the payment of any and all realty transfer taxes required
to paid as a result of the conveyance set forth herein and same
shall be paid as and when due, including without limitation any
payment at Settlement.
14. Cure Period. Upon determination by either Purchaser or
Seller that the conditions precedent to its obligations hereunder
as provided in paragraphs 7 and 8, as applicable, have not been
satisfied at the applicable time, Purchaser or Seller, as the
case may be, must provide the other party with written
notification to that effect. The other party then shall have
until fifteen (15) days after notice to cause such condition to
occur or breach to be cured (the "cure period"). Failure to give
such notice shall not excuse the obligations of the party
entitled to receive such notice, unless that other party has been
materially adversely effected by the failure of such
notification. If no notice has been given at or before
Settlement, the conditions precedent shall be deemed to have been
satisfied or waived in their entirety. If notice pursuant to
this paragraph is given and the recipient of the notice is unable
to cause such condition to occur or breach to be cured within the
cure period, the party giving notice shall have such rights as
are provided under this Agreement for breach hereof or a failure
of a condition precedent. The foregoing notwithstanding, no cure
peri.od shall extend or delay the last possible Settlement date
provided for herein and neither party shall be entitled to a cure
period for any failure to settle as and when provided herein.
- 12 -
"
15. Default, Should either party fail to fulfill and
perform in any material respect any of its obligations hereunder,
and such is not cured during the "cure period," if any, that
party shall be in default hereunder.
16. Remedies on Default. In the event of a default by
Seller or Purchaser the non-defaulting party shall be entitled to
any and all rights and remedies existing at law or in equity,
including without limitation, damages and the equitable remedy of
specific performance, and all rights and remedies set forth
herein or in any agreement, document or instrument executed
pursuant hereto.
17. Authorization and Conflicts, Seller represents and,
warrants to Purchaser that Seller is duly organized and validly
existing under the laws of the Commonwealth of Pennsylvania and
the execution, delivery and performance under this Agreement and
each of the documents, instruments and agreements to be executed
hereunder have been duly authorized. Each Purchaser represents
and warrants he is an adult individual with full power and
authority to enter into and perform under this Agreement. Each
of Seller and Purchaser represent and warrant to the other that
upon signature this Agreement shall constitute the valid, legal
and binding obligation of that party in accordance with the terms
of this Agreement. Each further represents and warrants to the
other that execution, delivery and performance of this Agreement
will not violate or be a breach of any organizational documents,
or any contracts, agreements, indentures, documents or
instruments or any laws, orders or decrees, binding upon same or
pending with respect to the party.
18. Eminent Domain. If, prior to Settlement, all or any
material portion of the Property is subject to taking by eminent
domain or similar proceedings by any governmental entity having
jurisdiction over the Property ("Eminent Domain"), Purchaser, at
its sole option, exercisable prior to Settlement, may terminate
this Agreement by written notice to Seller given within thirty
(30) days after notice of the taking or pending taking, whereupon
neither party shall have any further liability or obligation to
the other hereunder. If Purchaser opts to proceed to Settlement,
the parties shall proceed to Settlement without reduction in the
Price and Purchaser shall receive the entire award for such
taking. As of this date, and again at Settlement, Seller
'represents and warrants that it has no notice of any Eminent
Domain proceeding against the Property and has no reason to
believe that a notice of Eminent Domain is forthcoming.
19. Risk of Loss. Risk of loss of the Property shall be
borne by Seller until the time of Settlement. If the Property
suffers material damage prior to Settlement, either party may
terminate this Agreement by written notice to the other given
- 13 -
within thirty (30) days after the damage occurs, unless such
damage is caused by any act or omission of a party hereto, or any
agent, employee, invitee, or designee of same, in which case the
non-damaging party shall have the option to terminate or to
proceed to Settlement without reduction in the Price and
Purchaser shall then receive an assignment of any insurance
proceeds which would otherwise be payable to Seller, if any.
20. Brokers. Each party represents and warrants to the
other that it has not contracted with or involved any real estate
broker, agent or similar person with respect to this Agreement,
and that no brokerage commission or like fee is due to anyone in
connection with this sale or this Agreement as a result of the
actions of that party, Any party violating this representation
and warranty shall indemnify, promptly defend and hold the other
party harmless from and against any and all costs, liabilities,
obligations and expenses, including reasonable attorneys' fees,
incurred as a result of or arising out of such violation.
21. Leqal Fees, Each party shall pay its own attorneys'
fees and expenses with respect to the negotiation, preparation
and performance of this Agreement; provided, however, that in the
event that either party shall be in default hereunder the non-
defaulting party shall be entitled to recover from, and the
defaulting party shall pay, all reasonable attorneys' fees,
expert fees and court costs incurred by the non-defaulting party
in the enforcement of this Agreement and/or in the pursuance of
any rights, remedies or damages hereunder, with such costs and
expenses allocated equitably and comparatively between the
parties by a court of competent jurisdiction in the event that
both parties shall be in default hereunder,
22. Notices. All notices hereunder shall be in writing and
shall be given when delivered in person or sent by registered or
certified mail, return receipt requested, postage prepaid,
addressed to the parties at the addresses set forth below.
Either party may change its address for purposes of receiving
notice, by notice to the other.
If to Seller:
Donald H. Mowery, General Partner
Ritner Park Associates
625 Hamilton Street
Carlisle, PA 17013
If to Purchaser:
DD&K, Inc.
1898 North Market Street
Elizabethtown, PA 17022
Attn.: David G. Heisey, President
- 14 -
23. Miscellaneous,
a, This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective
heirs, personal representatives, successors and assigns.
Purchaser may not assign this Agreement, or any rights or
duties hereunder, without the prior written consent of
Seller, which consent may be withheld in Seller's sole
discretion; provided, however, that Purchaser may assign
Purchaser's rights and interests hereunder to a corporation,
partnership or limited liability company formed by or for
them for the purpose of developing the Property for the
intended use of the Property provided that Purchaser remains
fully liable hereunder after such assignment. The
obligations and liabilities for performance of Purchaser
hereunder shall be joint and several as to David Strong and
David Heisey.
b, This Agreement shall not be amended, modified or
rescinded except by a written agreement signed by Seller and
Purchaser. No right, power, remedy or privilege hereunder
shall be waived except to the extent expressly set forth in
writing signed by the party charged with the waiver. No
waiver of one event or breach shall waive any future or
further event or breach.
c, This Agreement contains the entire agreement and
understanding between the parties with regard to the subject
matter hereof, and all other representations, undertakings,
discussions and/or agreements of any kind, if any, made
prior to or contemporaneously with this Agreement, are
superseded by the provisions of this Agreement and are
hereby made null and void.
d, This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania
(excepting conflict of laws). Each party agrees and
consents to venue and jurisdiction only in the Court of
Common Pleas for Cumberland County, Pennsylvania, and/or the
United States District Court for the Middle District of
Pennsylvania, for any and all disputes hereunder or
otherwise with respect to the Property or this Agreement.
e. If any term or provision or portion thereof of
this Agreement, or application thereof to any person or
circumstance be held invalid or unenforceable, in whole or
in part by a court of competent jurisdiction, the remainder
of said term or provision and of this Agreement shall not be
affected thereby and shall remain in effect to the fullest
extent permitted by law; and, to this end, the parties
hereto agree that the terms and provisions of this Agreement
are severable.
f, Neither party may record this Agreement or any
memorandum hereof. Any violation of the preceding sentence
- 15 -
. ~ ;
IN WITNESS WHEREOF, the parties have hereunto set their
hands and seals as of the day and year fist above written.
WITNESS:
SELLER:
RSM ASSOCIATES, L.P.
a Pennsylvania limited partnership
By: RSM Associates, Inc., Sole
Gener Partner
~/.f, a/~
.
By
WITNESS:
PURCHASER:
DD&K, Inc.
iJ ,OK~
- 17 -
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information to limn a belicf as to their truth,
5. Denied, as after reasonable invcstigation Black is without knowledge or
information sufficient to form a belicf as to thc truth of this avermcnt.
6, Admitted in part, denied in parI. It is admittcd only that Mowery engaged the
services of Black for various skctch planning scrvices and site analysis at the request of Mowery,
but the averment "initially" is dcnied, All of the remaining aspects of this averment are denied,
as after reasonable investigation Black is without knowledge or information sufficient to form a
belief as to their truth,
7, Il is admitted only that Black provided services in accordance with a proposal
which is writing and speaks for itself. All other averments are denied,
8, It is admitted only that Mowery entered into an agreement of sale with the Allen
family for the purchase of the Allen Tract, but the terms and conditions of such agreement of sale
are not admitted in this response, It is denied that Black participated in Mowery's purchase of
the Allen tract. It is denied that Mowery entered into the agreement based upon information
provided by Black,
9, Denied, as after reasonable investigation Black is without knowledge or
information sufficient to form a belief as to the truth of this averment.
10, Denied, as after reasonable investigation Black is without knowledge or
information sufficient to form a belief as to the truth of this averment.
I], Denied, as many of the allegations contained in Paragraph II are conclusions of
law to which no response is required, It is furthcr dcnied, as after reasonable investigation Black
is without knowledge or information sufficient to form a belicf as to the truth of this averment.
HB:40561,13246-0B
2
12, Denicd, us after reusonablc investigation Black is without knowlcdgc or
information sufficient to form a belief us to the truth of this uvermcnl.
]3. It is admitted that plaintiff has uttachcd to its complaint un Exhibit A which
purports to be a rcvised proposal to plaintiff for certain professional services, All other
averments contained in Parugraph 13 are denied, as Black is without knowledge or information
sufficient to form a belief as to thc truth of those averments, Further, it appears that an additional
term to the proposul was addcd by the rcprcsentutives of plaintiff, and this additional term does
not appear to be agreed to by Black, Hence, dcnied,
14, It is denied that Black had accepted the undertaking prior to the entering into a
written professional services agrcement with Strong and Heisey. All othcr averments are denied,
as after reasonable investigation Black is without knowledgc or information sufficient to form a
belief as to the truth of these averments,
15, Denied, as ufter reasonable investigation Black is without knowledge or
information sufficient to form a belief as to the truth of this averment.
16, Denied as stated, The rcstatement of the alleged agreement between DD&K and
Black is denied, in that any and all terms and conditions of any agreement speak for themselves
and do not require paraphruse in this complaint.
17, Denied as stated, The terms and conditions of the agreement between Mowery
and Black speak for themselves, and do not rcquire a paraphrase as set forth in the plaintiffs
complaint.
18, Denied as a conclusion of law, to which no response is rcquired,
19, Denied as a conclusion of law, to which no response is required, The
HB:40561,13246,OB 3
sufficient to form a belief as to the truth of thc avermcnt, and arc thcrcforc denied, As to all
other averments, they arc dcnicd, as after rcasonablc investigation Black is without knowlcdgc or
information sufficient to form a belicf as to the truth of thosc averments,
26. Dcnied, as aftcr rcasonablc invcstigation Black is without knowledge or
information sufficicnt to form a bclicf as to thc truth of this avcrmcnt.
27, Dcnicd, as aftcr rcasonablc investigation Black is without knowledge or
information sufficicnt to form a belief as to the truth of this avcrment.
28, Dcnied as a conclusion of law, Dcnicd as after rcasonablc investigation Black is
without knowledge or information sufficicnt to form a belief as to thc truth of this avermcnt:
a, Dcnied, as after rcasonable invcstigation Black is without knowlcdge or
information sufficicnt to 10 I'm a belief as to thc truth of this averment.
b, Denied, as after reasonablc invcstigation Black is without knowledge or
information sufficicntto lorm a belicfas to thc truth of this avcrment.
c, Denied, as after rcasonable invcstigation Black is without knowlcdge or
information sufficicnt to 10rm a bclicfas to thc truth of this avcrmcnt.
d, Dcnied, as aftcr rcasonable investigation Black is without knowledge or
intormation sufticicnt to form a belicfas to thc truth of this averment.
e, Dcnied, as after rcasonable invcstigation Black is without knowledge 01'
information sufticicnt to 10rm a belicf as to thc truth of this avcrment.
f, Dcnied, as aftcr reasonable invcstigation Black is without knowlcdgc 01'
information sufticicnt to 10rm a belicf as to thc truth of this avcrment.
g, Dcnied, as aftcr rcasonable invcstigation Black is without knowlcdgc or
HB:40561,13246-0B 5
information sufficient to leII'm a belief as to the truth of this avcrment.
h, Dcnicd as statcd, It is admittcd only that in September of 1997, Craig W, Bachik,
a fonner employce of Black, without thc knowledge 01' approval of Black, affixed
the seal and signature of Stcvcn Fisher on ccrtain submissions, without the
authority of Stcvcn Fisher, After rcasonable investigation, Black is without
information sufficient to dctermine the truth of the allegations made in this
subparagraph, and thcrefore denies same,
i. Denied as stated, It is admitted only that in Scptember of 1997, Craig W, Bachik,
a fonner employee of Black, without the knowledge or approval of Black, affixed
the seal and signature of Steven Fisher on certain submissions without the
authority of Steven Fisher. Aftcr reasonable investigation, Black is without
information sufficient to dctermine the truth of the remaining allegations, and
therefore denies same,
J, Denied as conclusions of law, Further denied. as after reasonable investigation
Black is without knowledge or information sufficient to form a belief as to the
truth of these avermcnts,
29. Denied as conclusions of law, Further denied, as after rcasonable investigation
Black is without knowledge or information sufficient to form a belief as to the truth of these
averments, ,
30, Denied, as after rcasonablc investigation Black is without knowledge or
information suflicientto form a belief as to the truth of thesc averments, Also denied as
conclusions of law and as speculative opinions,
HB:40561,13246-0B
6
land developmcnt plan occurred in the Spring of 1998, It is admitted that those plans were
recorded in thc Cumberland County Recorder of Deeds office, As regards settlement, denied, as
after reasonable investigation Black is without knowledge or information sufficient to form a
belief as to thc truth ofthesc averments,
38, Denied as conclusions of law, Further denied, as after reasonable investigation
Black is without knowledge or information suftieientto form a belief as to the truth of these
averments;
a, further denied as conclusions of law,
b, further denied, in that errors arc not defined so as to permit a proper response,
e, Denied, Sewers were identified on all plans and submissions,
39, Denied as conclusions of law, Further denied, as after reasonable investigation
Black is without knowledge or information sufficient to form a belief as to the truth of this
averment.
40, Denied as conclusions ofIaw, Further denied, as after reasonable investigation
Black is without knowledge or information sufticient to form a belief as to the truth of these
averments,
41, Denied as conclusions of law, Further denied, as after reasonable investigation
Black is without knowledge or information sufficient to form a belief as to the truth of these
averments,
WHEREFORE, Black requests this Honorable Court to dismiss plaintiffs complaint and
to grant such other relief in favor of Black as is appropriate,
COUNT III - FRAUD
HB:40561,13246-0B
8
42, No rcsponsc rcquircd,
43. Dcnicd as statcd, Thc contract in qucstion, bcing in writing, spcaks for itsclf and
hcncc any charactcrizations thcrcof arc dcnicd, As to thc allcgations of Strong contacting
Mowery, dcnicd, as aftcr rcasonable invcstigation, Black is without knowlcdgc or information
sufficicntto form a belief as to the truth of this avcrmcnt.
43, Denicd, as after rcasonable invcstigation, Black is without knowlcdge or
information sufficient to form a bclief as to the truth of this avcrmcnt.
44, Denied as statcd, It is admitted only that in September of 1997, Craig W, Baehik,
a former cmployee of Black, without the knowledge or approval of Black , affixed the seal and
signature of Steven Fisher on certain submissions, without the authority of Steven Fisher, After
reasonable investigation, Black is without knowledge or information sufficient to determine the
truth of the remaining allegations and therefore denies same,
45, Denied as stated, Denied as conclusions of law, Denied, as after reasonable
investigation, Black is without knowledge or information sufficient to form a belief as to the
truth of this averment.
46, Denied. To the contrary, Black did not make any representations to the plaintiff.
47, Denied as a conclusion of law to which no responsive pleading is required,
48, Denied as a conclusion of law to which no responsive pleading is required.
49, Denied, as after reasonablc invcstigation, Black is without knowledge or
information sufficient to form a belief as to thc truth of this avermcnt.
50, Denicd, as aftcr rcasonablc invcstigation, Black is without knowledge or
information sufficient to form a bclicf as to thc truth of this averment.
HB:40561,13246-08
9
51, Dcnicd, as aftcr rcasonablc investigation, Black is without knowlcdgc or
information sufficicntto form a bclicf as to thc truth of this avcrmcnt.
52, Dcnicd as a conclusion of law to which no rcsponsive pleading is required,
53, Dcnied, as after reasonablc invcstigation, Black is without knowledge or
information sufficient to form a bclief as to thc truth of this avcrment.
53, Denicd as a conclusion of law to which no rcsponsive plcading is required,
WHEREFORE, Black requests this Honorable Court to dismiss plaintiffs complaint and
to grant such other relief in favor of Black as is appropriate,
COUNT IV - NEGLIGENCE
54, No response is rcquired,
55, Denied as a conclusion of law to which no rcsponsivc pleading is required,
56, Denied as a conclusion of law to which no responsive pleading is required,
57, Denied as a conclusion of law to which no responsive pleading is required,
Denied for the reasons that havc been previously pleaded in the referenced paragraphs,
58, Denied as a conclusion of law to which no responsive pleading is required,
a, Denied as a conclusion of Jaw to which no rcsponsive pleading is required,
b, Denied as a conclusion of law to which no rcsponsive pleading is required,
c, Denied as a conclusion of law to which no responsive pleading is required,
d, Denied as a conclusion oflaw to which no responsive pleading is required,
e, Denied as a conclusion of law to which no responsive pleading is required,
f. Denied as a conclusion of law to which no rcsponsive pleading is required,
59, Denied as a conclusion of law to which no rcsponsive plcading is required,
HB:40561,13246-0B I 0
WHEREFORE, Black r~qucsts this Honorablc Court to dismiss plaintiff's complaint and
to grant such other relief in favor of Bluck as is appropriate,
NEW MATTER
60, Black incorporates all of the above paragraphs as if fully set forth here at length,
61, Plaintiffs claims arc barred in whole or in part by the doctrine of the statute of
limitations,
62, Plaintiffs claims arc barred in whole or in part by the doctrine of consent.
63, Plaintiffs complaint fails in whole or in part to state a claim upon which relief
can be granted against Black.
64, Black's contract did not contain any expresscd or implied warranties to plaintiff.
65, Black's contract does not covenant or guarantee approval from any public body
having jurisdiction over this project.
66, Plaintiff is solely responsible for obtaining approval from any public body having
jurisdiction over this project.
67, Black's contract does not covcnal1l or guarnntee a specific date by which each part
of the contract had to be completed,
68, Plaintiff is responsible for the delays in the project.
69, The damages alleged in plaintiff's complaint arc economic in nature and are
therefore barred by the economic loss doctrine,
70, The damages allcged in plaintiff's complaint were caused or contributed to by the
plaintiff,
tiB:40561,13246-0a
II
71, Plaintiff has not properly mitigated its damages,
72, 1-1, Edward Black, President of Black, was not aware of the alleged wrongdoing of
Mr, Bachik,
73, Black, at all times, acted reasonably, prudently and properly and with thc fllllcst
degree of care required for the best interests of its clients,
74, Plaintiffs claims are barred in whole or in part by the doctrine of estoppel.
75, Plaintiffs claims are barred in whole or in part by the doctrine of waiver,
76, Plaintiffs claims are barred in whole or in part by accord and satisfaction,
77, Black discharged its duties or obligations as set forth in the contract.
78, The damages claimed by plaintiff arc and always were risks assumed by the
developer and not those assumed by Black,
79, The damages claimed by the plaintiff are uncertain and speculative,
80, The damages claimed by the plaintiff are not reasonably foreseeable, Black did
not commit a fraud upon plaintiff,
81. H, Edward Black 01'1-1, Edward Black & Associates did not commit a fraud upon
the plaintiff.
82. Alternatively, Black is not responsible for the ti'aud of his agent.
COUNTERCLAIM
I, Defendant, H, Edward Black & Associates, p,c., is a landscape architecture and
engineering firm with a principal place ofbllsiness located at 2403 North Front Street,
Harrisburg, P A 17110
2, PlaintiffDD&K, lnc, is a Pennsylvania corporation with its principal place of
HB:40561,13246-0B 12
busincss located at 1898 North Market Street, Elizabethtown, Pennsylvania,
3. Plaintiff entered into a contract with Black for professional design services of Lot
No, 16 of Bent Creek Developmcnt located in Silver Spring Township,
4. As a part ofplainliffs contractual obligations with Black, plaintiff was to
compensate Black in accordance with the contract.
5, The land development plan for the condominiums at Bent Creek waG approved by
the Silver Spring Township Commissioners,
6. Black completed all professional services for the submission orland development
plans in a timely and workmanlike manner,
7, To date, plaintiff has not paid Black in total for work done in performing the land
development plans required,
8, Black has suffered to its detriment as plaintiff has gained financially through
Black's uncompensated labor and professional service,
9, Plaintiff, by not tendering payment as required by the contract, is in breach of
contract.
10, Plaintiff is liable to Black in an amount in excess of $ 19,013,57 for completion of
the land development plan as stated in the contract.
I I, Black has repeatedly demanded payment for the amount due, but plaintiff has not
paid sums lawfully due to Black,
12, All conditions precedent to the bringing of this claim have been fulfilled,
HB:40561,13246.0B
13
DD&K, INC.
IN TIlE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
v,
No, 99-961 Civil Tcrm
H, EDWARD BLACK & ASSOCIATES,
P,C,
Civil Action -Law
CERTIFICATE OF SERVICE
AND NOW, on December 15,2000, I hereby certifY that I have served a true and correct
copy of the within Answer ofH, Edward Black & Associates. P,C, Containing New Matter and
Counterclaim upon the following person(s) via first class U,S, Mail, postage prepaid:
\
John M. Smith, Esq,
Jeffrey S, Shank, Esq,
222 S, Market Street, Suite 201
P,O, Box 267
Elizabethtown, P A 17022-0267
POWELL, TRACHTMAN, LOGAN, CARRLE,
BOWMAN & LOMBARDO, P,C,
>>))
By '-z1-
C, Grainger Bow
I.D, #15706
114 North Second Street
Harrisburg, PA 17101
(717) 238-9300
Allvl'I1eysfor Ii. Edward Black & Associates
HB:40561.13246-0B
15
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64, Denied, The allegations contained in paragraph 64 arc conclusions oflaw to which
no responsive pleading is required under the Pennsylvania Rules of Civil Procedure and the same
are therefore denied,
65, Denied, The allegations contained in paragraph 65 are conclusions oflaw to which
no responsive pleading is required under the Pennsylvania Rules of Civil Procedure and the same
are therefore denied,
66, Denied as to conclusions of law, Further denied, as after reasonable investigation,
DD&K is without knowledge or information sufficient to form a belief as to the truth of this
averment.
67, Denied as to conclusions of law Further denied, as after reasonable investigation,
DD&K is without knowledge or information sufficient to form a belief as to the truth of this
averment.
68, The allegations contained in paragraph 68 relating to conclusions oflaw, to which
no responsive pleading is required, are denied, Further denied, as after reasonable investigation,
DD&K is without knowledge or information sufficient to form a belief as to the truth of this
averment.
69, Denied as to conclusions of law, Further denied, as after reasonable investigation,
DD&K is without knowledge or information sufficient to form a belief as to the truth of this
averment.
70, Denied as to conclusions of law, Further denied, as after reasonable investigation,
DD&K is without knowledge or information sufficient to form a belief as to the truth of this
averment.
77. Denied as to conclusions of law, Further denied, as after reasonable investigation,
DD&K is without knowledge or information sufficient to form a belief as to the truth of this
averment.
78. Denied as to conclusions oflaw, Further denied, as after reasonable investigation,
DD&K is without knowledge or information sufficient to fonn a belief as to the truth of this
averment.
79. Denied as to conclusions oflaw, Further denied, as after reasonable investigation,
DD&K is without knowledge or information sufficient to form a belief as to the truth of this
averment.
80. Denied as to conclusions of law, Further denied, as after reasonable investigation,
DD&K is without knowledge or information sufficient to form a belief as to the truth of this
averment.
8 I. Denied as to conclusions of law, Further denied, as after reasonable investigation,
DD&K is without knowledge or information sufficient to fmm a belief as to the truth of this
averment.
82. Denied as to conclusions of law, Further denied, as after reasonable investigation,
DD&K is without knowledge or information sufficient to form a belief as to the truth of this
avemlenl.
ANSWER TO COUNTERCLAIM
I. Admitted,
2, Admitted,
3. Admitted,
4, Denied as to conclusions of Jaw,
5, Admitted,
6, Denied as to conclusions law, Further denied that plans were submitted in a timely
and workmanlike manner. Plaintiff alleges in its suit among other theories of liability, that
Defendant did not complete the land development plan in a timely and workmanlike manner,
Plaintiff incorporates by reference its complaint in denying said allegations of paragraph 6 of
Defendant's Counterclaim,
7, Admitted in part, denied in part, It is admitted only that Plaintiff has not paid Black
in total what Black Claims or alleges to be due, All of the remaining aspects of this averment are
denied, as after reasonable investigation Plaintiff is without knowledge or information sufficient to
form a belief as to their truth and by further answer, Plaintiff is not legally obligated to pay Black
due to various breaches of contract, fraud and negligence of Black as outlined in Plaintiffs
complaint.
8, Denied as to conclusions of law, Further denied, as after reasonable investigation,
DD&K is without knowledge or information sufficient to form a belief as to the truth of this
averment.
9. Denied as to conclusions of law, Further denied, as after reasonable investigation,
DD&K is without knowledge or information sufficient to form a belief as to the truth of this
averment.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
)
)
)
)
)
H, EDWARD BLACK & ASSOCIATES, )
P,C" )
)
DD&K, INC"
Plainti ff
No, 99-961 Civil Term
vs
Defendant
CERTIFICATE OF SERVICE
I, John M, Smith, Esquire, hereby certify that I duly served a copy of the foregoing Reply
and Answer to the following person by United States first class mail, postage pre-paid addressed as
follows;
Grainger C, Bowman, Esquire
114 North Second Street
Harrisburg, PAl 7 I 0 I
Respectfully submitted,
GINGRICH, SMITH, KLINGENSMITH &
Date: r. 151 /A){J I
By;
l
John M, ith, Esquire, ID #19520
Attome I for Plaintiff
222 South Market Street, Suite 201
Elizabethtown, PAl 7022
(717) 367-1370
1
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