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HomeMy WebLinkAbout04-1581SOUTHERN CUMBERLAND WATER ASSOCIATION, Plaintiff VS. INDIAN SPRINGS ASSOCIATES, LLC, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. : ~VI~ TERM : : EQUITY - SPECIFIC PERFORMANCE NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA Dated: SAIDIS, SHUFF, FLOWER & LINDSAY ~ower,~ 2S~egteHCi~r~)e't # 27742" Carlisle, PA 17013 (717) 243-6222 Attorney for Plaintiff SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High SIreet Carlisle, PA SOUTHERN CUMBERLAND WATER ASSOCIATION, Plaintiff VS. INDIAN SPRINGS ASSOCIATES, LLC, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. O CIVIL TERM EQUITY - SPECIFIC PERFORMANCE COMPLAINT AND NOW, comes the Plaintiff, Southern Cumberland Water Association, by and through its undersigned attorneys, Saidis, Shuff, Flower & Lindsay, and avers in support of its Complaint against Defendant as follows: 1. Plaintiff, Southern Cumberland Water Association, (hereinafter "Southern Cumberland"), is a Pennsylvania company, with its principal offices situated at 15 Lees Lane, Shippensburg, Pennsylvania. 2. Defendant, Indian Springs Associates, LLC, (hereinafter "Indian Springs"), is a Pennsylvania Limited Liability Company, with its principal offices situated at 6046 Edward Drive, Mechanicsburg, Pennsylvania. 3. In or around the end of 2000, beginning of 2001, Defendant purchased property from G&W Properties Inc., and still is the owner of the premises of Indian Spring Manor. The parcel of property in question is an unimproved tract of land situated in Southampton Township, Cumberland County, designated at Lot No. 159 on a Final Subdivision Plan of Indian Springs Associates, by Eric L. Diffenbaugh, registered surveyor, dated December 14, 2001 and recorded on September 12, 2002, in SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Plan Book 85, Page 137. 4. On June 13, 1999, Plaintiff entered into an agreement with G&W Properties, Inc. to provide water service to Indian Spring Manor. A copy of the 1999 Agreement is attached hereto and incorporated herein by reference as Exhibit "A." 5. Shortly thereafter, Defendant purchased the aforesaid property. 6. Plaintiff and Defendant sought to extend the June 13, 1999 Agreement for an additional one year period. 7. In or around October of 2001, Plaintiff and Defendant executed an Agreement in which it was agreed that Plaintiff would continue to provide water service for the entire development of Indian Spring Manor. A copy of the 2001 Agreement is attached hereto and incorporated herein by reference as Exhibit "B." 8. Paragraph 3 of the October 2001 Agreement provides that Plaintiff was granted permission to search "for a suitable location for a second well site on developer's property, and a successful test well has been drilled." 9. Paragraph 3 of the October 2001 Agreement also provides that Defendant "shall convey a Deed conveying all right, title and interest to the well site, consisting of lots No. 159, 160, 161 and 162, which appear on Phase 3 of the Plan to Indian Spring Manor." 10. Paragraph 3 of the October 2001 Agreement also provides that said deed was to be tendered "conveying all right, title and interest in the aforesaid described SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA property to Southern Cumberland within sixty (60) days of the date of execution of this Agreement." 11. To date, Defendant has wholly failed to keep or perform its part of the Agreement of Sale, by refusing to execute a deed for the property in question, and has not responded to Plaintiff's attempts to schedule a date and time for settlement. WHEREFORE, Plaintiff prays: (a) that Defendant be ordered, by a date certain, to specifically perform the agreement of sale and by good and sufficient deed convey the premises and every part thereof with marketable title and free of all encumbrances to the Plaintiff in fee simple and legally sign, acknowledge and deliver the deed to Plaintiff in proper legal form; (b) and grant such other general relief as may be just and proper. SAIDIS, SHUFF, FLOWER & LINDSAY Attorneys for the Plaintiffs [ ] James D. Flower,'Jr. // k,,/ I.D. #27742 26 West High Street Carlisle, PA 17013 (717) 243-6222 VE~T~ON I verify that the stateme~t~ mad~ ~ ~ foxing Comp~ ~ ~e and c~t. I ~d ~t ~ s~ he~k~ ~e ~de su~ect ~ ~e ~ ~ 18 Pa. C.S. ~ 49~, r~a~g ~ ~ f~ica~on ~ au~e8. SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA SOUTHERN CUMBERLAND WATER ASSOCIATION, Plaintiff VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. INDIAN SPRINGS ASSOCIATES, LLC, Defendant : CIVIL TERM : EQUITY - SPECIFIC PERFORMANCE CERTIFICATE OF SERVICE On this 13th day of April, 2004, I, hereby certify that I served a true and correct copy of the foregoing Complaint, upon all parties of record via certified mail, return receipt requested, addressed as follows: SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA Charles M. Suhr, Esquire Stevens & Lee P.O. Box 11670 Harrisburg, PA 17108-1670 Jane M. Alexander, Esquire 148 South Baltimore Street P.O. Box 421 Dillsburg, PA 17019-0421 Ja~jh M. ~rrffth, Esq. SOUTH,:~R CUM~EPJ~AND WATER ASSOCIATION Post Office Box 184 Walnut Bottom, PA 17266-0184 Junet3, 1999 G & W Properties Incorporated 900 Vogelsong Road York, PA 77404 Attention Gary Westover, RE: Water Line Extension for Indian Spring Manor The following are requirements necessary for the construction and approval for water service for the Indian Spring Manor, Please sign and return this document to Dwight Widney, Secretary, Southern Cumberland Water Association. It is the intent of the Association to provide water service for the entire Indian Spring Manor project. At this time we are granting approval for Phase Two of the project which is 31 taps for private residential dwellings. Approval for Phase Two is for 'a period of two years from the signature date of this document. If the 31 taps are not made within the two year period, the developer must reapply for the remaining taps. 1. The billing amount for water consumed by the development shall be determined by 70 readings taken from the 70 individual meters and paid for collectively by the park's owner. 2. The Association requires that the 6" main on Cherokee Drive be extended under Phase 3 to the dividing line between Lots 60 and 61 and along that line to the east property line of the project. At that point the main would connect to a 6" main from the adjacent Meadow Ridge Development and form a loop in the eater line alignment, Coordination between the two developers will be required to obtain the right-of-way for the mains alignment. 3. The developer shall install all piping, fittings, etc., necessary to service phase two of the project. All work and materials must conform to current PA Department of Environmental Protection and Southern Cumberland Water Associations specifications and regulations (a copy of the specifications and regulations are obtainable from Dwight Widney)o A note should be added to the drawings stating the following: "For water service extension, all work and materials must conform to current PA Department of Environmental Protection and Southern Cumberland Water Association's specifications and regulations. 4. Ail distribution mains and service lines to and including the meters shall be dedicated to the Association along with any right-of-way required for placement or access to the facilities. Maintenance of all piping downstream of the meter will be the owners' responsibility. The curb Maintenance of all piping downstream of the meter will be the owners' responsibility. The curb stop and meter should be installed at the right-of-way line. 5. The developer shall pay the Association a tap-on fee of $1500 for each domestic water tap required. The developer must install all piping and fittings required for taps at the time of main line construction. The Association will provide the 5/8" water meter at no additional charge. The tap-on fees will be payable at the time when the developer requests the individual meters from the Association. 6. Ail domestic taps at the proposed development must have pressure reducing devices installed at the beginning of the domestic piping system. 7. The contractor shall place metallic marking tape in the trench over P.V.C. water mains at all locations. 8. The developer will provide the Association with As-Built drawings of the water line installation when construction of the project is complete. These drawings should reflect any deviations from the proposed design made during the construction period. 9. The Association will require inspection of the installation and testing of the proposed facilities during the construction period. The developer shall be responsible for all cost concerning field inspection. The inspection fee must be estimated and is payable in advance based on the estimated construction time. An additional inspection fee payment will be required if the original estimate is exceeded. Any over payment will be returned. Payment of the lump sum inspection fee shall be made to the Association prior to the start of construction. The payment shall be in the form of a check made payable to the "Southern Cumberland Water Association" with the notation "Inspection Escrow Account". The Association will make payments from the escrow account to the inspection agency upon receiving their invoice for services rendered. The Association has required that personnel notify Dennis Eo Black Engineering, Inc. to perform the field inspection. The cost of inspection per hour will range from $44.10 $50.35 depending on the availability of personnel at the time of the request. The developer should consult with his contractor and obtain an estimate of the required construction time of the water service extension and approximate starting date before contacting Dennis E. Black Engineering, Inc. to arrange inspection. During water main construction, inspection will be required at all times when the pipe line is being laid, assembled, backfilled and tested. Inspection will not be required during trench excavation. If the developer is in doubt about the need for inspection for any part of the work, the inspector should be consulted prior to the start of work. The Association will not accept water mains that have been installed without the required field inspection. 11. Fire hydrants shall be required on the 6" mains as per PA Department of Environmental Protection specifications even though the system cannot produce flows deemed adequate for fire protection. Future improvements to the system in the form of storage tanks and new water sources could provide the required flow for the hydrants. The hydrants will be capable of providing some protection before improvements are made.- Without suction from a fire engine, it is estimated that the flows would vary between 62+ and 134+ G.P.M., depending on the peak domestic demand, With suction applied to the hydrant by a fire engine, a great deal more flow could be realized, but care must be taken to avoid collapsing the pipe by applying too much suction. The developer must install hydrants that match those that are in place on the existing system. If any changes are required in the hydrant design, the developer shall consult with the agency providing the local fire protection service before securing new hydrants. The local first protection serv±ce~Should also be made aware of the limited capabilities of the new hydrants. 12. Prior to each phase of the development new approval and application must be made to Southern Cumberland Water Association. 13. As stated previously, it is the Association's intent to serve the entire development with water. At some point in the future it will be necessary for the Association to develop a second source of water, most likely a second well. In return for providing the requested water service, the Association shall be granted permission to search for a suitable location for a second well site on the developer's remaining property. If such a site can be found, a test well shall be drilled to determine if the required quality and quantity of water can be found. If a suitable well is found, the developer shall grant the well site, consisting of land within a 100 foot radius around the well casing and a right-of-way to access the land, to the Association. All survey, transfer and approval fees for the site shall be paid by the developer. All cost to find, drill and develop the well shall be the responsibility of the Association. 14. A temporary 2" blow-off should be provided on the 6" main at the proposed limit of the water main construction on both Cherokee Drive and Buffalo Drive for Phase 2 of the project. These blow-offs will be used to flush the mains until they are extended to fire hydrant sites located in future phases. 15. The Association will require a one year warranty from the developer covering all workmanship and materials and replacement there of the Phase 2 water service extension. The warranty period should start when the facilities are activated. 16. The Association will require the developer to sign the Association's standard "Water Users Agreement". I, as the developer/owner, agree to the above requirements and will follow them with the construction of Indian Spring Manor. Sig~t~r.e of S.e~o~f S.C.W.A. Signature of President of S.C.W.A. Date Date AGREEMENT SAID1S SHUFF, FLOWER & LINDSAY 26 W, High Street Carlisle, PA THIS AGREEMENT is entered into between SOUTHERN CUMBERLAND WATER ASSOCIATION (hereinafter "SOUTHERN CUMBERLAND") and INDIAN SPRINGS ASSOCIATES, LLC. (hereinafter "INDIAN SPRINGS") as follows: WHEREAS, SOUTHERN CUMBERLAND entered into an Agreement dated June 13, 1999, with G & W PROPERTIES INCORPORATED to provide water to a development known as Indian Spring Manor and this Agreement was to continue for a two year period, said period having expired; and WHEREAS, the aforesaid property has been sold to INDIAN SPRINGS ASSOCIATES, LLC., a business entity located at 6046 Edward Drive, Mechanicsburg, Pennsylvania 17050; and WHEREAS, prior to purchase of indian Spring Manor, the prior owners had accumulated an unpaid water bill for the third quarter of 2000, which water bill is currently due and payable in the amount of $1,797.75; and WHEREAS, the parties wish to extend the aforesaid Agreement (a copy of which is attached hereto) for a period of one year from the date of this Agreement, with certain modifications, NOW, THEREFORE, it is agreed by and between the parties that: 1. INDIAN SPRINGS will at the time of the execution of this Agreement deliver to SOUTHERN CUMBERLAND a check in the amount of $1,797.75, representing the unpaid water bill for the third quarter of 2000. SAIDIS SHUFF, FLOWER & LINDSAY Carlisle, PA 2. All of the terms in the attached Agreement of June 13, 1999, which are not inconsistent with this Agreement, are extended for a period of one year from the date of execution of this Agreement, substituting INDIAN SPRINGS for G & W PROPERTIES INCORPORATED as a Party to the Agreement. Included in this extension is approval for 31 taps for extension of the Indian Spring Manor project, which if not made within that one year period would require the developer to reapply for the remaining taps. 3. Paragraph 13 of said Agreement is deleted and the following language is to be substituted: It is the Association's intent to serve the entire development with water. The Association has been granted permission to search for a suitable location for a second well site on developer's property, and a successful test well has been drilled. The location of said test well is identified in the attached Exhibit "B". The developer shall convey a Deed conveying all dght, title and interest to the well site, consisting of lots No. 159, 160, 161 and 162, which appear on Phase 3 of the Plan to Indian Spring Manor, and which are marked on the attached Exhibit "B". All expenses, including any additional survey costs, transfer fees and other fees to local government entities necessary to accomplish the conveyance of this land to the Association, shall be paid for by the Developer. All costs to locate, drill and develop the well shall be the responsibility of the Association. Developer shall tender a special warranty Deed conveying all dght, title and interest in the aforesaid described property to SOUTHERN CUMBERLAND within sixty (60) days of the date of execution of this Agreement. Should developer be delayed in its ability to convey the real estate by the need for governmental approvals, the developer shall obtain proof of said delay from the SAIDIS SHUFF, FLO1VER & LINDSAY 26 Pt. High Slreet Carlisle, PA governmental entity in question, and provide such proof to SOUTHERN CUMBERLAND along with a request for an extension of time to complete the conveyance, which SOUTHERN CUMBERLAND may in its discretion grant, but which it will not unreasonably deny. The parties agree that should the test well fail and not be a successful productive well upon further development, that SOUTHERN CUMBERLAND will re-convey the lots in question back to developer, and the parties will work together to identify a new well site under the terms set forth in the original paragraph 13 of the Agreement of June 13, 1999. 4, INDIAN SPRINGS agrees that it shall pay rates for water which are specified in the By-laws and/or Rates, Rules and Regulations governing water service adopted by SOUTHERN CUMBERLAND, and as amended by SOUTHERN CUMBERLAND from time to time. 5. In all other respects not inconsistent with the terms of this Agreement, the terms of the Agreement of June 13, 1999 are reaffirmed and incorporated herein by reference. ATTEST: INDIAN SPRINGS ASSOCIATES, LLC ATTEST: SOUTHERN CUMBERLAND WATER ASSOCIATION President SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA SOUTHERN CUMBERLAND WATER ASSOCIATION, Plaintiff VS. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA INDIAN SPRINGS ASSOCIATES, LLC, Defendant : CIVIL TERM : EQUITY - SiPECIFIC PERFORMANCE ACCEPTANCE OF SERVICE I hereby accept service of the Complaint for Specific Performance on behalf of ~Indian Springs Associates, LLC, and certify that Iarn authorized to do so. Dated: Charles M. Suhr, Esquire Stevens & Lee P.O. Box 11670 Harrisburg, PA 17108-1670 SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA SOUTHERN CUMBERLAND WATER ASSOCIATION, Plaintiff VS. INDIAN SPRINGS ASSOCIATES, LLC, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL TERM EQUITY - SPECIFIC PERFORMANCE ACCEi'7'ANCE Ob SERVICE I hereby accept service of the Complaint for Specific Performance on behalf of Indian Springs Associates, LLC, and certify that I ann authorized to do so. Dated~-~x/,/,~ /J afl ~"M .~ e/~n~d e r~_s qu~re 148 South Faltimore Street P.O. Box ~1 ~Dillsburg, PA 17019-0421 SOUTHERN CUMBERLAND WATER ASSOCIATION, Plaintiff VS. INDIAN SPRINGS ASSOCIATES, LLC, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : No. 04-15181 CIVIL TERM : EQUITY _ SPECIFIC PERFORMANCE PRAECIPE TO SET~TLE, DI~SCQNTINUE AND END TO THE PROTHONOTARY: Please mark the above-captioned matter settled, discontinued and ended. SAIDIS, SHUFF, FLOWER & LINDSAY Attorneys for the Plaintiffs _Ja_mes D. Flower, Jr. I.D. #27742 26 West High Street Cari[isle, PA 17013 (717) 243-6222 SAIDIS STUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PR SOUTHERN CUMBERLAND WATER ASSOCIATION, Plaintiff VS. INDIAN SPRINGS ASSOCIATES, LLC, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. 04-1581 CIVIL TERM EQUITY - SPECIFIC PERFORMANCE CERTIFICATE OF SERVICE On this ~_o~,~'~ day of October, 2004, I, hereby certify that I served a true an6 correct copy of the foregoing Praecipe to Settle, Discontinue and End, upon all parties of record via certified mail, return receipt requested, addressed as follows: Charles M. Suhr, Esquire Stevens & Lee P.O. Box 11670 Harrisburg, PA 17108-1670 Jane M. Alexander, Esquire 148 South Baltimore Street P.O. Box 421 Dillsburg, PA 17019-0421 SAIDIS SHUFF, FLOWER & LINDSAY 26 IV. High Street Carlisle, PA