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HomeMy WebLinkAbout08-4412HOMES, INC., IN THE COURT OF COMMON PLEAS vner-Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v MECHANICS' LIEN NO. 09 _ 4 L-b WAGMAN CON TRUCTION, INC., STIPULATION AND WAIVER OF LIENS / The unde signed contractor, materialman or other entity or person furnishing services, labor or materials, known as, Wagman Construction, Inc., a Pennsylvania corporation (the "Contractor") has entered into a writen contract dated July 11, 2008 ("Contract") with Presbyterian Homes, Inc. ("Owner"), the Owner of certain real property located in Cumberland County, Pennsylvania as more fully identified on Sch ule "A" hereto, for the construction of certain buildings and improvements ("Improvements") Under the Contract, Contractor is required to provide a payment bond guaranteeing payment of all am unts due any subcontractor or supplier of Contractor as those terms are defined in 49 P.S. §1201(5)(20M) (collectively "Subcontractor"). The Contractor has, in fact, provided the required payment bond, a py of which is attached hereto as Schedule "B". As permitted by 49 P.S. § § 1401(b)(2) and 1402(a), and as required by the Contract, Contractor hereby waives all rights of any and all Subcontra tors to file a mechanics' lien or claim, or notice of intention to file any mechanics lien or claim, as a resu t of any work performed, or any labor, skill, superintendence, and/or materials provided for the provements. All Subcontractors are required to look solely to Contractor and its payment bond for payments due on account of work performed, or labor, skill, superintendence, and/or materials provide for the Improvements, as originally defined or as subsequently supplemented or otherwise modifie . This Stipulation and Waiver of Liens is an independent covenant which is governed by and is to be co strued in accordance with the laws of the Commonwealth of Pennsylvania.. The unde signed, for the Subcontractors and anyone else acting under or through it, hereby irrevocably authorizes and empowers any attorney of any court of competent jurisdiction of the Commonwealth o Pennsylvania, or elsewhere, to appear as attorney for it, them or any of them, in any such court and, in its or their name or names, mark satisfied of record at the cost and expense of the undersigned, any and all claims, liens, any pleading or instrument, or any amendment to any pleading or instrument previously filed by it or them, to incorporate therein as part of the record this waiver and for such act or acts th s waiver shall be good and sufficient warrant and authority, and the undersigned for them, does hereby remise, release and quit-claim all rights and all manner of errors, in filing such pleading, instrum t or amendment, or in any way concerning them. Owner sh 11 have the absolute right in its name or in the name of the undersigned or any other entity or person w o shall have filed a claim or lien, to cause any and all such claims or liens to be discharged by any other instrument, pleading or proceeding permitted at law or in equity. The under igned hereby avers, represents and warrants that no work has commenced on the Real Estate and no labor or materials have been delivered to the Real Estate or furnished for the improvement of the Real Estate y the undersigned or by any subcontractor, materialman, laborer, or other person or entity, and that nol authorization has yet been given by the Owner to the undersigned to commence work or purchase materials in connection with the Real Estate. This Stipp Lerequirements n is made and intended to be filed with the Cumberland County Prothonotary in accordance with of the Mechanics' Lien Law of 1963 of the Commonwealth of Pennsylvania, as ded. IN WITNESS WJIEREOF, the undersigned has caused this instrument to be duly executed as of the -?-L day o ? v V 12008. ATTEST: CONTRACTOR: WAGMAN CONST TION, INC. By Name: Title: l•?" Po" bt"t it C. a o 2 SCHEDULE A ALL THAT CERAIN parcel or tract of land situate in West Pennsboro Township, Cumberland County, Pennsylvania, mo a particularly described as follows: CONTAINING 1 Page 904, Tax Pa the property of D Tax Parcel 8-591 Presbyterian Hon Parcel 9-515-29. Such parcel or Construction I ! Acres, net measure and being that same premises as identified in Deed Book 235 el 8-591-7 granted and conveyed unto Presbyterian Homes, Inc. Further bounded by Lald A. and Vicky McCullough as identified in Deed Book 215, Page 256, Tract No. 3, 1 and Deed Book 215, Page 258, Tract No.3, Tax Parcel 8-591-11 and the property of s, Inc. as identified in Deed Book 210, Page 903, Plan Book 80, Page 14, Lot #1, Tax ach property is further transversed by Locust Lane and Ridge Lane. of land is further identified in the attached Drawing C 2.0 of the Site/Civil ngs of "The Lodges at Green Ridge Village", which is incorporated herein. SCHEDULE B Payment Bond Bald lib: 929363738 CONTRACTOR ( ame and Address): SURETY (Name and Principal Place of Inc. Business): 3290 lath Suqudwra Trail W---bE!M StEty (lz PMV Yc? k, PA, 1740 333 S. Mbish Awiae QtcagD, IL 60684 OWNER (Name a) td Address): P A: jt? , Ir1C. 1217 Slate Pcad Canp Hill, FA 17011 CONSTRUCTION ONTRACT Date: 3dy Z, 2008 Amount $596 1.00 Description (X e and Location):rffe at GreM V??fl? 1.2 Build 1 ( Stay chit) & M.1 ding 2 (Left t), 2T0 Rig Sp ing lbed, Mwine, PA 17241 BOND Date (Not earlier than Construction Contract Date): July 21, 2008 Amount: $596r .00 Modifications to is Bond: 0 None See Last Page CONTRACTOR A PRINCIPAL SURETY Company: (Corporrlatte Seal) Co?ly y (Corporate Seal) ubcr4 I. Si a ?l Signature: Name d Title: os i Z' O Name and Title: Ddarah L ODtbzin, Atb32W-In-Fbet (Any additional s gnatures appear on the last page) (FOR INFORMA ON ONLY - Name, Address and Telephone) AGENT or BROKE ` R OWNER'S REPRESENTATIVE (Architect, ATA, Irk;; Engineer or other party): 4550: Isla Drive ?? FA 17055 x(717) 591 AIA Document A312 -1984. Copyright ® 1984 by The American Institute of Architects. All rights reserved. WARNING: This Ale Document Is protected by U.S. Co yright Law and International Treaties. Unauthorized reproduction or distribution of this Ale Document, or any portion of It, 5 may result In severe hill and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16: 5:11 on 05/0812007 under Order No.1 D00258617_1 which expires on 9/1212007, and is not for resale. User Notes: (654346797) § 1 The Contractor and the Surety, jointly and severally bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Constructio Contract, which is incorporated herein by reference. § 2 With respect to the Owner, this obligation shall be null and void if the Contractor: § 2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants, and § 22 Defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity whose claim, demand, lien or suit is for the payment for labor, materials or equipment furnished for use in the performance of the Construction Contract, provided the Owner has promptly notified the Contractor and the Surety (at the address des nbed in Section 12) of any claims, demands, liens or suits and tendered defense of such claims, demands, liens or Juits to the Contractor and the Surety, and provided there is no Owner Default. § 3 With respect to Claimants, this obligation shall be null and void if the Contractor promptly makes payment, directly or indirect y, for all sums due. § 4 The Surety sha have no obligation to Claimants under this Bond until: § 4.1 Claimants w o are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address des ribed`in Section 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under thisB nd and, with substantial accuracy, the amount of the claim. §42 Claimants w o do not have a direct contract with the Contractor: .1 Ha e furnished written notice to the Contractor and sent a copy, or notice thereof, to the Owner, wit 'n90 days' after having last performed labor or last furnished materials or equipment included in the laim stating, with substantial accuracy, the amount of the claim and the name of the party to whom the materials were furnished or supplied or for whom the labor was done or performed; and 2 Ha e either received a rejection in whole or in part from the Contractor, or not received within 30 day of furnishing the above notice any communication from the Contractor by which the Contractor has indicated the claim will be paid directly or indirectly; and 3 No having been paid within the above 30 days, have sent a written notice to the Surety (at the ad ess described in Section 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is b ing made under this Bond and enclosing a copy of the previous written notice furnished to the Co tractor. § 5 If a notice req ired by Section 4 is given by the Owner to the Contractor or to the Surety, that is sufficient bompliance. § 6 When the Clai ant has satisfied the conditions of Section 4, the Surety shall promptly and at the Surety's expense take the f?llowing actions: § 6.1 Send an ans%+er`to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed. § 62 Pay or arran4e for payment of any undisputed amounts. § 7 The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. § 8 Amounts ow by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, under any Construction Performance Bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and the Surety under this Bond,' subject to the Owner's priority to use the funds for the completion of the work. § 9 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond. AIA Document A312 -1984. Copyright ®1984 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this A10 Document, or any portion of It, 6 may result In severe ivil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16: 5:11 on 05/08/2007 under Order No.1000258617_1 which expires on 9/12/2007, and is not for resale. User Notes: (654346797) § 10 The Surety he eby waives notice of any change, including changes of time, to the Construction Contract or to related subcontrac s, purchase orders and other obligations. § 11 No suit or ac ti on shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the ocation in which the work or part of the work is located or after the expiration of one year from the date (1) on w ch the Claimant gave the notice required by Section 4.1 or Section 4.2.3, or (2) on which the last labor or service w. s performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contact, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited bylaw, the minim m period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. § 12 Notice to the urety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page.A tual receipt of notice by Surety, the Owner or the Contractor, however accomplished, shall be sufficient compliance as of the date received at the address shown on the signature page. § 13 When this Bo d has been furnished to comply with a statutory or other legal requirement in the location where the construction w to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorpora ed herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. § 14 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor shall promptly furnish copy of this Bond or shall permit a copy to be made. § 15 DEFUIITIONS 15.1 Claimant: individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to fum sh labor, materials or equipment for use in the performance of the Contract. The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials =orequip entwere furnished. § 15.Z Constructio Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Con et Documents and changes thereto. § 153 Owner Def*ult: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. §16 tdODIFICATiONS TO THIS BOND ARE AS FOLLOWS: (Space is provide below for additional signatures of added parties, other than those appearing on the coverpage.) CONTRACTOR A PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Name and Title: Address: Signature: Name and Title: Address: AIA Document A312 -1984. Copyright ©1984 by The American Institute of Architects. All rights reserved. WARNING: This AIAE Document is protected by U.S. Co yright Law and international Treaties. Unauthorized reproduction or distribution of this A10 Document, or any portion of It, 7 may result in severe vil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16: 5:11 on 05/08/2007 under Order No.1000258617_1 which expires on 9/12/2007, and Is not for resale. User Notes: (654346797) Western Surety Company OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-FACT Know All Men By These resents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation having its principal office in th City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby make, constitute and appoint Eugene M Fritz, Patricia C Robinson, Kathy R Reisinger, Donald R Wert, Deborah L Cottom, Individually of Mechanicsburg, PA, its true nd lawful Attomey(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds, undertakings and other ?bligatory instruments of similar nature - In Unlimited Amounts - and to bind it thereby as fully a d to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney, pursuant to the author ty hereby given, are hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By-Law printed on the reverse hereof, duly adopted, as indicated, by the shareholders of the corporal on. In Witness Whereof, W STERN SURETY COMPANY has caused these presents to be signed by its Senior Vice President and its corporate seal to be hereto affixed on this 27th d y of October, 2006. Er, WESTERN SURETY COMPANY ,We? ?PO M?4? tP °v ?4?`SE Ay./ p ?rM Dr Paul . Bruflat, Senior Vice President State of South Dakota 1 Jj County of Minnehaha ss On this 27th day of he resides in the City of which executed the above so affixed pursuant to autho acknowledges same to be the My commission expires November 30, 2012 -r, 2006, before me personally came Paul T. Bruflat, to me known, who, being by me duly sworn, did depose and say: that Falls, State of South Dakota; that he is the Senior Vice President of WESTERN SURETY COMPANY described in and ment; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and and deed of said corporation. +tititititititititititititititititititirrtititi+ f D. KRELL f f AL NOTARY PUBLIC SEAL r SOUTH DAKOTA r 4?titititirtitititirtititirtitititititititi+ CERTIFICATE I, L. Nelson, Assistant force, and further certify that my name and affixed the seal D. Krell, NoTary Public etary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in By-Law of the corporation printed on the reverse he, of Is in force. In testimony whereof I have hereunto subscribed he said corporation this day of Tom' -=r' WESTERN SURETY COMPANY Wi4 jP 9 R+?,`Tf AbJ P wry 17, rWQ%'?q, 0 q1 +Je • L. Nelson, Assistant Secretary Form F4280-09-06 Authorizing By-Law ADOPTED BY THE SHAREHOLDERS OF WESTERN SURETY COMPANY This Power of Attorney is made and executed pursuant to and by authority of the following By-Law duly adopted by the shareholders of the Company. Section 7. All bonds, policies, undertakings, Powers of Attorney, or other obligations of the corporation shall be executed in the corporate name of the Company by the President, Secretary, and Assistant Secretary, Treasurer, or any Vice President, or by such other officers as the Board of Directors may authorize. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or agents who shall have authority to issue bonds, policies, or undertakings in the name of the Company. The corporate seal is not necessary for the validity of any bonds, policies, undertakings, Powers of Attorney or other obligations of the corporation. The signature of any such officer and the corporate seal may be printed by facsimile. w VV CJ rf r.. %Ij F t