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REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire Attorney I.D. No. 67987 Email: Twilliams&ReagerAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: wmartin@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for John F. Walter Excavating, Inc. JOHN F. WALTER EXCAVATING, INC. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No.: 7l % - : CIVIL ACTION -LAW TRAVELERS CASUALTY AND SURETY : COMPANY OF AMERICA JURY TRIAL DEMANDED Defendant NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim 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 SHOULD NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17103 Phone (717) 249-3166 REAGER & ADLER, PC By: Peter R. Wilson, Esquire Atty. I.D. # 87655 By: Wayne S. Martin, Esquire Atty. I.D. # 208078 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Email: pwilsonQreageradlerpc.com JOHN F. WALTER EXCAVATING, INC. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. . No.. : CIVIL ACTION -LAW TRAVELERS CASUALTY AND SURETY : COMPANY OF AMERICA JURY TRIAL DEMANDED Defendant AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mss adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despu6s de a notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falls de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demands o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mss aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17103 Phone (717) 249-3166 REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: wmartin@ReagerAdierPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for John F. Walter Excavating Inc JOHN F. WALTER EXCAVATING, INC. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. No.: CAF - 7P 4t?j : CIVIL ACTION -LAW TRAVELERS CASUALTY AND SURETY : COMPANY OF AMERICA JURY TRIAL DEMANDED Defendant COMPLAINT Plaintiff, John F. Walter Excavating, Inc. ("Plaintiff'), by its undersigned attorneys brings this Complaint against Defendant, Travelers Casualty and Surety Company of America ("Travelers"), and in support thereof avers as follows: PARTIES Plaintiff, John F. Walter Excavating, Inc., is a Pennsylvania corporation, with its principal office located at 1 Mill Road, Newville, Pennsylvania, 17241. 2. Defendant, Travelers Casualty and Surety Company of America, is, upon information and belief, a Connecticut Corporation with a principal place of business located at 1 Tower Sq., Hartford, Connecticut 06183, doing business in the Commonwealth of Pennsylvania with an address at 1500 Market Street, Suite 2900, West Tower, Philadelphia, Pennsylvania 19102. FACTUAL BACKGROUND 3. The Norwood Company (the "Prime Contractor") entered into a written contract (the "Prime Contract") with Old Gettysburg Associates IV, LP c/o Select Capital Commercial Properties, Inc. (the "Owner"), pursuant to which Norwood agree to supply labor and material and equipment needed to construct the Executive Park Office Building IV, 980 Century Drive, Mechanicsburg, Cumberland County, Pennsylvania (the "Project"). 4. Norwood obtained a laborers and materialman's payment bond from Travelers designated as bond no. 104769673 for the project (the "Bond"). A copy of the Bond is attached hereto as Exhibit A. 5. In order to complete the Project and to fulfill its responsibilities under the Prime Contract, Norwood entered into a written subcontract with Plaintiff dated September 11, 2006, pursuant to which Plaintiff agreed to supply certain labor, material and equipment related to the site work. A copy of the subcontract is attached hereto as Exhibit B. JURISDICTION 6. This Court has jurisdiction over this matter pursuant to Paragraph 11 of the Bond which requires that an action be commenced in a court of competent jurisdiction in the location in which the work or part of the work is located. 7. The work performed by Plaintiff is located in Cumberland County, Pennsylvania. 2 BREACH OF PAYMENT BOND 8. The work that Plaintiff agreed to perform on the Project was work that Norwood was obligated to perform and part of its contract with the Owner. 9. The work that Plaintiff agreed to perform on the Project was work that was encompassed and covered by the Bond issued to Norwood. 10. Plaintiff provided the labor and materials and performed its work in a good and workmanlike manner and completed its work for which it makes this claim on April 11, 2008. 11. Norwood received and accepted all labor and materials provided by Plaintiff to the Project. 12. Plaintiff completed work and billed Norwood a total of $1,293,012.45, and to date has been paid a total of $1,105,505.97, leaving a principal balance due and owing in the amount of $187,506.48. 13. Plaintiff believes, and therefore avers, based on representations from the Project Owner's Attorney, that Owner paid Norwood for Plaintiff's work on the Project. 14. Pursuant to the Bond, Travelers agreed to pay the claims of proper claimants, such as Plaintiff, in the event Norwood failed to pay for the claimants' work on the Project. 15. Norwood has failed and refused to pay Plaintiff the outstanding contract balance and change order amounts. 16. Plaintiff is a proper claimant under the Bond because it supplied labor and materials to the Project as a subcontractor to Norwood. 17. Plaintiff provided Travelers, Norwood and the Owner with notice of its claim against the Bond by letter dated August 26, 2008. A copy of the notice is attached hereto as Exhibit C. 3 18. Once Plaintiff furnished notice of a bond claim, Paragraph 6.1 of the Bond required Travelers to "Send an answer to the Claminat, 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." 19. By letter dated September 15, 2008, Travelers acknowledged receipt of Plaintiff's notice of its claim against the Bond and assured Plaintiff that it would investigate the circumstances surrounding the claim. A copy of the acknowledgment letter is attached hereto as Exhibit D. 20. Notwithstanding Traveler's assurance that it would investigate the circumstances surrounding the claim, by letter dated October 16, 2008, Travelers denied Plaintiff's claim without conducting any investigation. A copy of the claim denial letter is attached hereto as Exhibit E. 21. By denying the claim without "stating the amounts that are undisputed and the basis for challenging any amounts that are disputed" and by denying the claim without investigating the circumstances surrounding the claim, Travelers breached its obligations under the bond. 22. Defendant is in possession of all documentation related to Plaintiff's claim or has access to such documentation through its Principal, Norwood. 23. Plaintiff has satisfied all conditions precedent to obtain payment for all of the foregoing amounts under the Bond, or such conditions were waived, excused or otherwise satisfied. 24. Even though Plaintiff has fulfilled its obligations under the Bond, Travelers has failed to satisfy Plaintiff's claim. 4 25. Travelers is liable to Plaintiff as a third party beneficiary and claimaint under the terms of the Bond for the balance of $187,506.48 owed to Plaintiff. 26. Travelers' failure to pay and satisfy Plaintiff s claim is a breach of its obligations under the Bond. WHEREFORE, Plaintiff, John F. Walter Excavating, Inc., demands judgment in its favor and against Defendant, Travelers Casualty and Surety Company of America, in the amount of $187,506.48 plus interest, costs, attorney's fees and such other relief as the Court deems appropnate. Respectfully submitted, REAGER & ADLER, P.C. Date: December_, 2008 Tho as O. Williams, Esquire Attorney I.D. No. 67987 Wayne S. Martin, Esquire Attorney I.D. No. 208078 2331 Market Street Camp Hill, PA 17011-4642 (717) 763-1383 Attorneys for Claimant 5 u 7 ?' LJ ! a 7.1 C? / :_.., VERIFICATION I, J. Brian Walter, hereby verify that I am the President of John F. Walter Excavating, Inc., and, as such, I am authorized to verify that the averments of the foregoing Complaint are true and correct to the best of my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. JOHN F. WALTER EXCAVATING, INC. Dated: 6e By; an Walter, President ExI,6,? ? THE AMERICAN INSTITUTE OF ARCHITECTS BOND NO. 104769673 AIA Document A312 Payment. Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): THE NORWOOD COMPANY 530 Brandywine Parkway West Chester, PA 19380 OWNER (Name and Address): OLD GETTYSBURG ASSOCIATES IVY LP c/o Select Capital Commercial Properties I nc. 4718 Old Gettysburg Road, Suite 405 Mechanicsburg, PA 17055 SURETY (Name and Principal Place of Business): TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA 2550 Eisenhower Avenue Building B Trooper, PA 19403 CONSTRUCTION CONTRACT Date: July 7, 2006 Amountfight Million Two Hundred Fifty-Two Thousand One Hundred Ten and 00/100 Dollars($ 8,252,110.00 Description (Name and Location): Executive Park Office Building IV, Old Gettysburg Road, Cumberland County, PA BOND Date (Not earlier than Construction Contract Date): September 1, 2006 Amount..6ght Million Two Hundred Fifty-Two Thousand One Hundred Ten and 00/100 Dollars($ 8,252,110.00 ) Modifications to this Bond: ® None 0 See Page,6 CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) 'Zoo ,4e THE NORWOOD CO Signature: Name and Title: , 4I1iW4; (Any additional signatures appear on page 6) SURETY C,me?aFc reStD SURETY COMPCor FaAMERICA Signature: BY'WA& f r Yy `7 Name and Title: Christine A. Dunn Attorney-in-Fact (FOR INFORMATION ONLY-Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or Rosenberg & Parker, Inc. other party): James W. Ford, Jr, 201 North Presidential Boulevard 3WF Collaborative Inc. Bala Cynwyd, PA 19004-1201 33 Red Hill Road Newport, PA 17074 610-668-9100 AIA DOCUMENT A312 - PERFORMANCE BOND AND PAYMENT BOND - DECEMBER 1%4 ED. - AIA 0 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312.1984 4 THIRD PRINTING 0 MARCH 1987 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 perfor- mance of the Construction Contract, which is incorpo- rated 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 2.2 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 fur- nished for use in the performance of the Construction Contract, provided the Owner has promptly notified the Contractor and the Surety (at the address described in Paragraph 12) of any claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits 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 pay- ment, directly or indirectly, for all sums due. 4 The Surety shall have no obligation to Claimants under this Bond until: 4.1 Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the addre'ss' described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and, with substantial accuracy, the amount of the claim. 4.2 Claimants who do not have a direct contract with the Contractor: .1 Have furnished written notice to the Con- tractor and sent a copy, or -notice thereof, to the Owner, within 90 days after having last performed labor or last furnished materials or equipment included in the claim 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 Have either received a rejection in whole or in part from the Contractor, or not received within 30 days of furnishing the above no- tice any communication from the Contractor by which the Contractor has indicated the claim will be paid directly or indirectly, and .3 Not having been paid within the above 36 days, have sent a written notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to the Contractor. S If a notice required by Paragraph 4 is given by the Owner to the Contractor or to the Surety, that is suffi- cient compliance. 6 When the.Claimant has satisfied the conditions of Paragraph 4, the Surety shall promptly and at the Surety'3 expense take the following actions: 6.1 Send an answer 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:. 6.2 Pay or arrange 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 owed by the Owner to the Contractor under the Construction Contract shall be used for the perfor- mance 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 prior- ity 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 unrelat- ed to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claim- ant under this Bond, and shall have under this Bond no obli- gations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this .Bond. 10 The Surety hereby waives notice of any change, inclUding changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations.. 11 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent juris- diction in the location in which the work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2.3; or (2) on which the last labor or service was performed by anyone or the last mate- rials or equipment were furnished by anyone under the Con- struction Contract, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 12 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. Actual 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 Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be.deemed deleted herefrom and provisions con- forming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIM THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE.. N.W,. WASHINGTON. D.C. 20006 A312-1984 S THIRD PRINTING 0 MARCH 1957 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 a copy of this Bond or shall permit a copy to be made. 15 DEFINITIONS 15.1 Claimant: An individual or entity having a direct contractwith the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equip- ment for use in the performance of the Contract. The intent of this Bond shall be to include without limita- tion in the terms "labor, materials or equipment" that part of water, ps,-power, light, heat, oil, gasoline, telephone service or rental equipment used in the MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, Materials or equipment were furnished. 15.2 Construction Contract: The agreement between the Owner and the Contractor identified on the sig- nature page, including all Contract Documents and changes thereto. 15.3 Owner Default: Failure of the Owner, which has neither' been remedied nor waived, to pay the Con- tractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Signature: Name and Title: Name and Title: Address: Address: AIA DOCUMENT A312 - PERFORMANCE BOND AND PAYMENT BOND - DECEMBER 19114 ED. - AIA • THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312.1984 6 THIRD PRINTING • MARCH 1967 Bond No. 104769673 RIDER ADDING ADDITIONAL OBLIGEE To be attached to and forma part of Bond No. 104769673 , dated the 1st day of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA September 2006 • , issued by as Surety, on behalf of THE NORWOOD COMPANY , as Principal in favor of OLD GETTYSBURG ASSOCIATES N, LP as Obligee. WHEREAS, upon the request of the Principal and Obligee the attached bond is hereby amended to add PNC BANK NATIONAL ASSOCIATION , as an additional obligee. PROVIDED HOWEVER: There shall be no liability under this bond to the Obligees, or either of them, unless the said Obligees, or either of them, shall make payments to.the Principal strictly in accordance with the terms of said contract as to payments, and shall perform all of the other obligations to be perf'orneed under said contract at the time and in the manner therein set forth, all of the acts of one Obligee being binding on the other. The aggregate liability of the surety under said bond to the joint obligees, as their interests may appear. is limited to the penal sum of said bond. The suretymay, at its option, make any payment under said bond by check issued jointly to the joint obligees. The attached bond shall be subject to all its terms, conditions and limitations except as herein modified. Signed, sealed and dated this 1st day of September , 2006 ACCEPTED: TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA THE NORWOOD ANY By: By. y: x Chiistlne A. Dunn, Attorney-in-Fact OLD GETTYSBURG ASSOCIATES IVY LP By: WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER INSTPAUL POWER OF ATTORNEY TRAVELERS F - armington Casualty Company St. Paul Guardian Insurance Company. Fidelity and Guaranty Insurance Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers. Casualty and Surety Company . Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company Attorney-In Fact No. .. 213983. Certificate No. 0 010.4 5 8 6 0 KNOW ALL MEN BY THESE PRESENTS: That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York, that St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury. Insurance Company are corporations duly organized under the laws of the State of Minnesota, that. Farmington Casualty Company, Travelers Casualty and Surety Company, and Travelers Casualty and Surety. Company of America are corporations duly organized under the laws of the State cif Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc. is a corporation duly organized under. the laws of the.State of Wisconsin (herein collectively called the "Companies'), and that the Companies do hereby make, constitute and appoint David C. Rosenberg, Harry C. Rosenberg, Matthew J. Rosenberg, Sherri L. Feeney, David A. Johnson, Christine A. Dunn, Julia R. Burnet, and Kimberly G. Tommassello of the City of Bala Cynwyd , State of Pennsylvania: , their true.and lawful Attomey(s)-in-Fact, each in their separate capacity if more'than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in then s*ss of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or kOin ae ons 01 dings allowed by law. 'Mee ' 25th IN WITNF WHEREOF, the Companies have caused this instr?to ,gtte 1?cD rate seals to be hereto affixed, this day of u Y Z(lWU66 ?, "??ll Farmington Casualty C4[ty y St. Paul Guardian Insurance Company Fidelity and Guaranty?gsilra ?`p1hp St. Paul Mercury Insurance Company Fidelity and Guaranty Insundet- rs, Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company GMW Starry ,ut s o? , ?ar?i + 1! •?f7 y jf? O ?,• ?? ` ° 1977 "°'°wOWN ' g27 Y ?. ,• •?-•„ + ??. "' a O0m' 'h' r'? ?. SE A L S +!? 881LL ? 1 S . ?. ? 1? ?'ekn?EN? e.,e? qtr . ?MI?? i+- . ? ?"+ ?+'?'f • ? A1N State of Connecticut City of Hartford ss. By: 949e W rnpsori, sen Y?c President On this the' 25th day of July 2006 - , before me personally appeared George W. Thompson, who acknowledged himself to be the Senior Vice President of Farmingtou Casualty Company; Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and, United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrumen( for the purposes therein contained by, signing on behalf of the corporations by himself as a duly authorized officer. d,TEr In Witness Whereof, I hereunto set my hand and official seal. My Commission expires the 30th day of June, 2011. *? S} Marie C. Tetreault, Notary Public 58440-6-06 Printed in U.S.A. TRAVELERS CASUALTY AND'SURETY COMPANY OF AMERICA HARTFORD, CONNECTICUT 06183 FINANCIAL STATEMENT AS OF DECEMBER 31, 2005 CAPITAL STOCK i 6,000,000 CASH & INVESTED CASH 3 18,722,811 UNEARNED PREMIUMS i 838,314 350 BONDS 2,394,448,295 LOSSES , 713,238 842 STOCK 7,822,616 LOSS ADJUSTMENT EXPENSES , 114,608 239 INVESTMENT INCOME DUE AND ACCRUED 29,926,638 COMMISSIONS . , 27,023 969 PREMIUM BALANCES 149,726,893 TAXES, LICENSES AND FEES , 19,154,812 REINSURANCE RECOVERABLE 17,473,347 OTHER EXPENSES 26,897,610 NET'DEFERRED TAX ASSET 41,208,607' CURRENT FEDERAL AND FOREIGN INCOME TAXES 47,731,849 OTHER ASSETS 21,087,146 PAYABLE TO PARENT, SUBSIDIARIES''AFFILIATES 28;682880 1 OTHER ACCRUED EXPENSES AND LIABILITIES 200,006 620 TOTAL LIABILITIES i 1,823, 23,860 CAPITAL STOCK i 8,000.000 PAID IN SURPLUS 303,297,402 OTHER SURPLUS : 647,676,801 TOTAL SURPLUS TO POLICYHOLDERS $ 858,873.,003 TOTAL ASSETS i 2,680,396,653 TOTAL LIABILITIES & SURPLUS $ 2,480,3981853 STATE OF CONNECTICUT ) COUNTY OF HARTFORD )SS. CITY OF HARTFORD . LAWRENCE A. SIUTA, BEING DULY SWORN, SAYS THAT HE IS CHIEF FINANCIAL OFFICER - BOND, OF THE TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, AND THAT TO THE BEST OF HIS KNOWLEDGE AND BELIEF, THE FOREGOING IS A TRUE AND CORRECT STATEMENT OF THE FINANCIAL.CONDITION OF SAID COMPANY AS OF THE 31st DAY OF DECEMBER, 2005. CHIEF INANCIAL OFFICER -BOND SUBSCRIBED AND SWORN TO BEFORE ME THIS 29TH DAY OF MARCH, 2006 au? L NOTARY PUBLIC TErRF? ??Q OTARy?,,, * 'oV g y?V COMNEG3??'? ,?- ? yJ V' is , A'ZLi;7:l 1?.?S'A : .. .. ... - •' ?-.:;? .?i .,?., THE NORWOOD COMPANY SUBCONTRACT. AGREEMENT.::(PA) Job Name: Executive Park IV Office Building Vendor ID: Job Number:' 2208 Cost Code(s): 2200(9-x-x) ' • - ": ?: Job Location: Project Manager: Brian Ruhl TM Phone: 717 303-0510 Superintendent: Homer.. May FAX:' 717 303-0531 Job Phone: (71763-0635..•;~=. Cell Phone: 717 512-4604 Job Fax: : (717) 763=0637 +':°t> e-mail: bruhl@norwdco.com Cell Phone: ' 610'585-6207'; r;.:. Subcontractor Contact: Brian Walter Subcontractor.FAX: ?` • :` 717°776=4566`.; ; Subcontractor Phone: 717 776-3148 Subcontractor Cell Phone: ~ 717226,7 6120.':,... This SUBCONTRACT is made this . 11th day of September 2006 by and between:'.::::'. THE NORWOOD, COMPANY, a Ne Jersey corporation CCONTRACTOR") 10o.? 7ar __536 81 C31 Idywil it: Pdf b \41"t ?rhestei, PA 19588 and John F. Walter Excavating, Inc. ("SUBCONTRACTOR°) P.O. Box 175 Newville, PA 17241 1.. THE WORK SUBCONTRACTOR does hereby covenant, promise and agree .to furnish all labor, services;;material, tools, equipment, supplies, engineering and any other items necessary or incidental, to. the performance. of the=Scope.of.lNork described in attached Exhibit A and other attachments and attached Exhibits, the contents of which are hereinafter referred to as and constitute the WORK. 2. CONTRACT SUM SUBCONTRACTOR agrees, to complete the WORK.for the sum of One: Million, One,; Hundred. Seventy=Seven. Thousand, Eight'Hundred Sixty-Three dollars ( $ 1,177,863.00) according to the payment; terms:described . .herein. . The following Exhibits are an integral part of this SUBCONTRACT: Exhibit :A - Scope of Work Exhibit B - Insurance Requirements Exhibit C - Schedule Exhibit D - Description of Contract between Owner and CONTRACTOR ("OWNER CONTRACT"). :'Exhibit E - Safety Requirements - .-Exhibit F - Listing of Suppliers, Materialmen and Subsubcontractors Exhibit G - Payment Forms .Exhibit H - Waiver of Lien forms Exhibit I - Warranty 'Exhibit J Other Terms and Conditions Exhibit. K - Pennsylvania Payment Notification 7/10100 Page 1.of 7 SUBCONTRACTOR CONTRACTOR . 'JOB Executive Park IV Office Building -SUBCONTRACTOR- .1'. 4 r' ter Excavating..l 'W r ... •. ,3, :. PERFORMANCE OF, THWO RK All WORK required t6 be performed hereunder: by'SUBCONTRACTOR ahal?pe'i:., strict accordance with thks SUBCONTRACT and the OWNER CONTRACT applicable. to the;:WORK:. -$IJBCONTRAC,,OR, shall be bound to CONTRACTOR by the terms of this SUBCONTRACT and of the-OWN ER:CONTRACT?an'dshall> ssunje?c:: ' ".:.: toward. CONTRACTOR all of the obligations and responsibilities with ,respect to the WORK which::,GONTRACTQR f y ,tries=: Y; OWNER. CONTRACT, assumes toward the Owner. Notwithstanding that specific worksetfotth in the.OWNER :CONTRACT is nat precisely.described or specified in this SUBCONTRACT, SUBCONTRACTOR shall perform all work'nomia)ly`con$trued?=?' to come within the scope of his activities as required of CONTRACTOR under the OWNER CONTRACT::: All Work ?shall=be',<" performed to the complete satisfaction of CONTRACTOR, Architect and Owner. 4. PERFORMANCE OF AND PAYMENT FOR EXTRA WORK IT IS.EXPRESSL?!.AGREED AND ACM 4EDGEDBI(' '' r s:..,. SUBCONTRACTOR AND CONTRACTOR* THAT NO'. EXTRA WORK . WILI:~ BE :PERFORMED ' Off. fHEi.JOB'°ib '.--, • ADDITIONAL LABOR OR MATERIALS FURNISHED WITHOUT SUBCONTRACTOR:FIRST.::RECELVING ,? ?AFFUL,LI(;.:,'K: ? .''EXECUTED CHANGE ORDER OR DIRECTIVE SIGNED BY AVICE-PRESIDENT;.SENIOR:VICEAPRESIDEN'f .OR*THE=_' PRESIDENT OF THE CONTRACTOR, AND,THE SUBCONTRACTOR:: THE' CO(NTRACTOR'S,.P , JECTMANAGER;IS r:y?' AUTHORIZED TO APPROVE CHANGE ORDERS UP TO FIVE THOUSAND.DOLL.ARS..'($5, 000);'IN.TyE?AOGREQATE '. FOR THE TERM OF THE SUBCONTRACT WITHOUT APPROVAL OF A NORWOOD.`VICE.PRESIDENT :SEN1' R'. ;I,. PRESIDENT OR PRESIDENT. IF SUBCONTRACTOR FURNISHES ANY ADDITIONAL LABOR; OR M 4T .: Th)C€ ` JOB IN EXCESS OF THE WORK OF THIS SUBCONTRACT. WITHOUT . FIRST RECEIVING.:A FULLY-E?CECI,l7'ED: CHANGE ORDER OR DIRECTIVE SIGNED BY A VICE-PRESIDENT, SENIOR VICE PRESIDENT°OR... THE PRESIDENTFa: F- °r + a OF THE CONTRACTOR - EVEN IF SUBCONTRACTOR WAS DIREC,TEDTO PERFORM THE:WORK,BY:i N,EMPLOYEE- OF CONTRACTOR IN WRITING OR OTHERWISE - SUBCONTRACTOR AGREES THAT. NEITHER :CONTRACTOR OFt :OWNER WILL BE LIABLE FOR ANY ADDITIONAL PAYMENT FOR THE WORK PERFORMED:,-, PAYMENT TERMS Payments will be made monthly on the'.basis of'properly completed Applications . for Payment wh ich; ' are.received by CONTRACTOR on the Payment Forms attached. as Exhibit G on.or before?the 20th'day of each,monjN}u les a; different date is specified in Exhibit J, representing the value of.laboe performed+and/o 'material ;delivered and properly„ ':. ;; stored during the month. Prior to submitting the first Application for Payment, ` SUBCONTRACTOR. will .p oxide... CONTRACTOR with a listing of all suppliers, materialmen and Subsubcontractors who.;will supply, material ors labor or:bothlto .' MM: SUBCONTRACTOR for the performance of SUBCONTRACTORS WORK. oh the 'formattached-- ;;? , . ...:. CONTRACTOR will apply to Owner for payment.::'SUBCONTRAC. OR acknowledges thaf .a condifion_' precedent,to , ` payment of SUBCONTRACTOR is that CONTRACTOR has been paid by .Owner: hen :payment is receive .. from Owner, payment will be made to SUBCONTRACTOR on the basis'of 90 %.of SUBCONTRACTOR'S:Application.forxPanient Y< normally within seven (7) business days after receipt of payment from, Owner. , It is a'condition.of payment tlj*at;within, fourteen ?w' (14) days. of SUBCONTRACTOR'S receipt.of payment,, SUBCONTRACTOR shall:'sui it: a..letter:'.of::release _fromleach:.:, a J'S vendor, supplier or subcontractor whohas a purchase order or contract with SUBCONTRACTOR.of more-than ten,' and dollars:($10,000.00) for any performed or materials supplied which were included ih.'SUBCONTRACTOR S,.Appf b'' ^ `; ' for Payment.to CONTRACTOR. Said letters of release,shall _certify that payment` has'been .received_; in?ff611--for?any work :.. performed or materials supplied which were included in SUBCONTRACTOR'S Application''for Paym?nt:;to',rC01yTftACTQR s;I 'No subsequent payments will be made to SUBCONTRACTOR until all required letters'.;of release,have been 'received by ?K CONTRACTOR; If required by.the terms of OWNER CONTRACT,':Waivers of L iens.wiII be substituted' fob ;the.;'. a ers,ofc.' .r:: ' release.; SUBCONTRACTOR Applications for. Payment received after:the 25ih`day`of,a`month`',will not tie.p oce?ssed forxK:j payment until the following payment period. SUBCONTRACTOR will' provide all.*., close-out `docunientattor when,+:1 `? 1 rk x. SUBCONTRACTOR reaches or exceeds invoicing for 80% of the WORK. = ?' 5 pe 6. . RELEASE OF RETAINAGE. Retained amounts will'.be paid, promptl mb 1'th'e. ',?:- y.to , SUBCONTRACTOR ` ir th6`1era,rof:..th..41- OWNER CONTRACT when (a) SUBCONTRACTOR has completed: all WORK; '(b)"aII:WORK:is approved,:arad.:acoepted;,,(,c);?q r CONTRACTOR has received payment from Owner, (d) a F.,inal Release of Liens, attached in Exhibit H; has`been;eiecuted by' SUBCONTRACTOR and submitted to CONTRACTOR and (e) all ,other requirements of_this' SUBCONTRACT and OWNER CONTRACT, as they relate to-the WORK, have been properly completed by SUBCONTRACTOR... .7.. PAYMENT OF SUPPLIERS AND. OTHER SUBCONTRACTORS SUBCONTRACTOR he'reby.agrees to make:prompt'::- :' payment to all parties furnishing labor, materials, equipment:or any, other thing. to. SUBCONTRACTOR in the pros. c the WORK hereunder; and that such prompt payment is of the essence: of this .SUBOONTRACT. In ahe..ever`it :; r SUBCONTRACTOR or its subcontractors or materialmen, or any party acting through .or under it or them, fails to pa ;an suni`<;`' Y. Y ;?...: ..of money due any party furnishing such labor, materials, equipment or.other things-hereurnder, CONTRACTORt..is here authorized to retain out of any payment due, or to become due hereunder, said unpaid sum and to pay same.directly totlie-;;..' party to whom such sum is due. If at any time there shall be evidence of,any lien or claim for which, if established,. Ow r 7110100. Page 2 of 7 SUBCONTRACTO.. -'-- JOB. Executive Park IV Office Building SUBCO NTRACTOR ,.--- Joh n`F. WatterExcavatin :` °•".`, CONTRACTOR, or its sureties, might become liable, and which' are .chargeable to SUBCONTRACTOR '•CONTRACTOR: :: 'shall ' have the right to detain out of any payment due, or to. become due hereunder;`• an : amount: s cient to`'co.?pletel ';°r indemnify Owner and CONTRACTOR, and its sureties, against such lien or claim,. including: damages and ;any;atCorneysl;:fees`; '..,'....and other costs and expenses incurred. or sustained by CONTRACTOR: and/or the Owner in connegon heiq#th,k? -. provisions of this paragreph: shalC not require CONTRACTDR'to determine or adjust any-claims.or dlsputes' betwrdenahose:::; parties furnishing labor, materials, equipment or other things hereunder, or to withhold any money fqr their protection; nor shall::';'., . CONTRACTOR be liable to any party for its failure to do so. j..,,.>. .8. TAXES SUBCONTRACTOR, for payment of this SUBCONTRACT, hereby accepts and assumes. -and:exclusive_..,"-.- : liability for, and shall indemnify and save CONTRACTOR harmless against the payment of any and all taxes, contributions;or"a premiums for unemployment insurance, workmen's compensation, retirement, health and welfare ordisabili s ty,:and any.si?ilar R benefits, which may now or hereafter be imposed by law or by collective bargaining.'agreerrtent measured upon the:..pajrfoll,`n: income, wages, salaries or other remuneration of employees, by whomsoever, employed,-engaged in theperformance..of.the'?; work Included in this-SUBCONTRACT, and all Sales, Use.or'other taxes levied orassessed `against.Owner;:;CONTRACTOR :'`F,`,j, or .SUBCONTRACTOR, arising out of SUBCONTRACTORS WORK-including, but"not-limited. o;''taCes`;o[? anyukind of `f .. .materialsction ;:by k _c , . supplies, articles or equipment. CONTRACTOR 'may, --in its sole;.discretion,' 'request produ ' :.'SUBCONTRACTOR of evidence satisfactory to CONTRACTOR that all obligations`contained in this; paragraph.,haVe, been'`j? "„ aid in full as a condition to making an P any payment pursuant to this :SUBCONTRACTtyhether final orotherwise ;:,+>:. 9..: SUBCONTRACTOR LIA516ITY AND INDEMNIFICATION SUBCONTRACTOR. o;assumes. enurp..responsIbiliVy,and;?? ``. liability for any and all claims and/or damages of any nature or character whatsoever for which contractor. shall. be'.or be come ;.. ' -liable under the Contract Documents; or by operation of law,. with respect ;to-the:::SUBCONTRACT R'S WORK SUBCONTRACTOR agrees to indemni rs •. ` " ' . fy and save CONTRACTOR and Owner `harmless: from"-p.nd .against•.-all.;claims;: demands, liabilities, interest, loss, damage, costs and expenses of whatsoever kind or. nature;`whether;for;"rop eity:;:damage,'r_:;, .: -personal injuries including death,•to any and all persons, whether employees. of CONTR!°yCTOR:or'others;:or.„otherwise; -?. caused. or occasioned thereby, resulting therefrom; arising out of or therefrom; or •oecurnng;;in'.connection-therewith'.to the: ;l; same extent and obligation to which CONTRACTOR has assumed towards. Owner: uoder'OWNER: CONTRAC_ T;?o:r'as'°:` imposed by law, limited to the scope of the subject matter of this SUBCONTRACT. SUBCONTRACTOR further:agrees: to indemnify and save CONTRACTOR and Owner. harmless from, all and all manner 'of'claims;: damages;:or .suits ;:;.for ' or violations of patents or. patent rights, including all costs.' and exp infringement enses'which: CONTRACTOR Owner may incur or sustain in connection with the same., 10. INSURANCE. SUBCONTRACTOR shall procure and maintain, at• its own',expense;;-'the insurance.'required;per the= attached Exhibit B and such other.or additional limits. of insurance,..or in''-such amourits: as.,.Ownermay;;requtre4:.of; CONTRACTOR under OWNER. CONTRACT, and/or as CONTRACTOR may. require.:hereunder. 'Before co[nmencing,any:; - WORK or.delivering any materials and/or equipment hereunder; SUBCONTRACTOR,shali'furc?ish Certificki(s)-,of lnsUrance;= -;. to CONTRACTOR establishing that all the insurance coverage required hereunder is in force:::Failure. of $.UBCOJVTRACTORe to produce, or failure of CONTRACTOR to require, the production of such. Certificate(s) of,Insurance`.:shall:not,;absolv;;. • :.: SUBCONTRACTOR of its obligations with respect thereto."' Should SUBCONTRACTOR fail:66 procure." maintain such; : • insurance as is required hereunder, CONTRACTOR shall have the right to procureand maintain same. or and.in the name;of; ..,;:.-SUBCONTRACTOR, and charge the cost thereof to SUBCONTRACTOR.;..;; No payment .'shall:.be=:.made:' SUBCONTRACTOR pursuant to this SUBCONTRACT prior to receipt of the above described Cerpficate s of:lnsurance .11. PERFORMANCE, DEFAULT AND TERMINATION SUBCONTRACTOR shaft corrimence the :1NO.RK,: withilthree::*: working days after notice from CONTRACTOR or in 'accordance:.. with ,.the:.=schedule attached'.,,.as Exhibit C .SUBCONTRACTOR shall supply sufficient materials; Workmen 'and equipment to maintain -t 'et the 1NORK,per tFie; 44 :: schedule of CONTRACTOR and perform the. same., at such'- times and :places: as .idesinated by `CONTRACTOR`, SUBCONTRACTOR shall not damage, delay.or otherwise interfere with the work,of:,CONTRACTOR:•or.-ani-'other:cgh.tractor:?,: , Y or subcontractor on the Project. In the event SUBCONTRACTOR.delays or interferes with the progress of the' WORK of the` # furnishing of materials; articles and/or equipment or fails in the performance of any of theprovislom of this' SUBCON,TRACT;?;', or should make a general assignment for the benefit or his creditors; or if a receiver.should be' appointed' on account of his'-vi insolvency or.inability to meet his obligation, or if 'a petition in !bankruptcy is fled ti '-or: against SUBCONTRACTOR; CONTRACTOR shall have the right to cancel this SUBCONTRACT upon' seventy-two (7.2)`, Hours Notice In, case 'of such:' termination, CONTRACTOR may take possession (and for-this purpose SUBCONTRACTOR does hereby assign title thereto) of all of the materials, articles and supplies of SUBCONTRACTOR on said premises and finish the* WORK: by .whatever. . method CONTRACTOR may deem expedient. SUBCONTRACTOR shall not be entitled to receive any further'payments:".-. under this SUBCONTRACT until the performance of the SUBCONTRACT has been completed by CONTRACTOR or others: >> 7/10100 Page 3 of 7 :SUBCONTRACTOR CONTRACT JOB`-, Executive Park IV Office Building SUBCONTRACTOR:;:- ? '4t John' F: Walter Excavating Inc:'? engaged by CONTRACTOR. If the unpaid balance due SUBCONTRACTOR 'hereunder `exceeds the -sym,of .tfie expense;; ?=f r (including, overhead andaproft) of completing SUBCONTRACTOR'S work, plus such: other.. costs (including: byt noV. mitred to :K s' c ? consequential damages ;for delay, or othe*69), damages ,and expenses (incllding but `not: Mtnitod ae: r®a?s©ttawbla aw ome ' fees)'.as CONTRACTOR may suffer or incur by reason. of•SUBCONTRACTOR'S'conduct; said, excess amount shall tie paid:; r,:,., to SUBCONTRACTOR in full payment of any and all claims of.SUBCONTRACTOR:under this sUBCONTRAC O,pro?ided; - however, that-in the event such costs, damages and expenses•exceed such unpaid :,balance; then:,SUBC©N`1-RAC70R (a) `. agrees that it is. not entitled to any further payments hereunder,: or . for •any:.ott 6r • claims SUBCONTRACT, and (b) agrees to assume entire responsibilityand liabilityfor:and to. inderrinify':and'save: harmless'the' CONTRACTOR from such excess costs, damages, and • expenses. Time '.of completion `,of `WORK. 'unde?.::;this: SUBCONTRACT is of the essence. .12; SUBCONTRACTOR DELAYS : In the event that SUBCONTRACTOR should delay:;the . progress; of,.the'::VVQRK hereunder so as to cause any damage or loss for. which CONTRACTOR may become; liabie, including :expenses whiC . S ...a F be, directly related to the job, SUBCONTRACTOR shall indemnify CONTRACTOR for:alI such; dainagesso .losses ;:mcluding w : consequential damages caused thereby, and such other damages, liquidated':or.`penal,; which might be assessed against CONTRACTOR under the OWNER CONTRACT as a result thereof._ 13. TIME Time is of the essence. Therefore, SUBCONTRACTOR shall .(a)'- submit to CONTRACTOR;withi,Q to days of the date of signing of this SUBCONTRACT a detailed, proposed schedule. for th'e`;WORK:-for use in preparing an overall schedule for the entire work, (b)' coordinate and. perform:the.;WORK and its;several;pa.[ts diligently and promptly and in such order and sequence as CONTRACTOR may from time to time direct:and,as willassure its efficient and timely prosecution, and will not delay completion of the.'entire .work and its;severa'?..parts:unde.;the^ CONTRACT, and (c) furnish at all' times sufficient qualified ,acid competent forces: and.'.supervision; ,;a nd adequate, u?. conforming and usable materials,. equipment, plant,. tools and other, necessary things; to>'achieve progress: accorging_:to CONTRACTORS current schedule, including any specific schedule fior. SUBCONTRACTOR'S WORK and any revisions : . thereof by CONTRACTOR. :. Without, limiting the generality of the foregoing, SUBCONTRACTOR shall (a) submit;'. with` its." proposed ;acFiedUle, i information showing (1) the time required to. prepare and approve,shop..drawings, ..(2) the::time. required. to'fabricateVand: Y .:'. deliver materials and equipment, .(3) the time, required to install the:WORK, and. (4):ytfie^weekly p)annedmbeX 'of;•,TYa employees, supervisors, crews and subcontractors who will perform the WORK; '(b).. orderfor manufacture'or,purchase ,;;,., delivery all materials required for performance of the WORK as''soon-as'possible:in order.to avoid°•delays,`caused;bjr.:, strikes, transportation or unavailability; (c) ' furnish. Contractor, within. thirty (30)::days4 a.. list of major. materials ,and ;?w ; equipment required for the WORK; showing the name; address, and telephone numtjer?of the .supplier arid'tfle datq'o which.such material is expected to be delivered to the Project site; (d) furnish' CONTRACTOR, upon issuance;-a`copy;of'};A' >= each major, purchase order and subsubcontract with price information .,deleted;'-.::. (e) :.:cause a` qualified. supervisory r.:. ..representative, while SUBCONTRACTOR has forces at the Project site and'for:two, weeks prior thereto, to; attend.•week(y. _::,,f. progress meetings; and (f) notify CONTRACTOR immediately by telephone and confirm in :writing within sevegty=tviio:(72) hours, if SUBCONTRACTOR finds that any item cannot be delivered as required to.:maintain CONTRACTOR'S progress},.° schedule. SUBCONTRACTOR also agrees to be bound by such' modifications to the Project schedule "as are discussed-.at the weekly job progress meetings and which are contained in the minutes of those: meetings: unless written objection'.is made by SUBCONTRACTOR within forty-eight (48) hours after such meeting. 14: EXTENSIONS OF TIME Should SUBCONTRACTOR, without any fault or neglect on its own part ; bedelayed.in;the 'completion of the WORK by the fault or neglect of CONTRACTOR, SUBCONTRACTOR,, as ,its sole remedy,?shall b;e >? 'entitled to be reasonable extension of time only. Should SUBCONTRACTOR, without anyfault or'neglect omits:-ownlpart; be delayed in the completion of the WORK by an act of God or such other cause beyond-the control of CONTRACTOR and SUBCONTRACTOR -which entitles CONTRACTOR to an extension of time "under -the•:OWNER C0NTRACT.•and should. CONTRACTOR actually receive and extension of time from Owner;' SUBCONTRACTOR shall be=entitled'to' a:' .reasonable extension of time to be determined in accordance with this SUBCONTRACT and the-OWNER CONTRACT ,.In no event shall SUBCONTRACTOR be entitled to compensation of damages for,-any, delay' in the, commence, pqt; , < prosecution, or completion of the WORK or for any schedule. adjustments resulting therefrom except to the. extent that., =. CONTRACTOR shall receive such compensation or damages from Owner.or other third party. Notwithstanding ,anything':; . to the contrary in the OWNER CONTRACT or this SUBCONTRACT,- SUBCONTRACTOR shall not .be ei titled•.to::an :; ::l extension of time unless written notice of delay shall have been delivered to CONTRACTOR within seventy-two (72) hours after commencement of the claimed delay. 7/10/00. Page 4 of 7 ' SUBCONTRACTOR CONTRACT .JOB Executive Park IV Office Building SU$ O rr C NTRACTOR` :John F Walter=Excavatingz(nc:';::';" BACKCHARGES In the event.that it becomes. < :' ::? F.,-`. ?';'','•,`k,' .:., necessary,..for'CONTRACTOR:to.,..(1)'supply.Gabor;*rtiate?rials..`or.4'i' :equipment either by regtl'est of SUBCONTRACTOR or due to SUBCONTRACTORS:ngnperfomiance, ',(2) make payents tore Subsubcontractors, suppliers or'others on behalf of SUBCONTRACTOR for this SUBCONTRACT,jor:(3)'engage'counsel any.rriatter:.which involves SUBCONTRACTORs nonpayments.or:nonperformance;'`all such.-items will: be,packcharged to?ty SUBCONTRACTOR on the basis of actual costs and expenses incurred by CONTRACTOR plus 209 . 16. CLEANUP SUBCONTRACTOR shall at all times clean up and remove daily to a dumpster famished bq CONTRACTOR *.i- all debris. or rubbish caused by it .in the execution of the. WORK otherwise,. CONTRACTOR, may remove: said debris and' ; .. charge the cost of removal to SUBCONTRACTOR. 17. HOISTING CONTRACTOR will not provide any special hoist or elevator service for.:raising of SUBCONTRACTOR'S "?'; workmen or. materials. SUBCONTRACTOR shall provide all hoisting, rigging and scaffolding, .requiredto:: complete, th•e '? , WORK. 18. WAIVERS OF LIENS FORMS SUBCONTRACTOR, as a condition precedent. to any."payment: hereunder;ihaII'fuijiish.;r. all: necessary releases, lien waivers, affidavits and other,documents• required by CONTRACTOR, attached as Exfato tee Owners ,.,,.,,... ,. p premises free from liens,,or claims for liens of all materialmen,• Subcontractors or.laborers;'as'y?rgll as complete: waivers and releases of any and all claims of any party connected with or related to'the performance of thisSUBCONTRACT;`::: .`: Acceptance of final payment by SUBCONTRACTOR shall be full and complete discharge and'are'le'ase.Qf.:CONTRACTOR-::y} .: and Owner. , No payment hereunder, including final payment, shall be. construed to be an acceptance by :Owned; or 'r •.. CONTRACTOR of defective work or improper materials. 19'. WAIVER OF LIENS SUBCONTRACTOR, for itself, its subcontractors•and all parties acting' through;.:or,under, it hereby ;i covenants and agrees not to file any, Hens or to make any claim against the premises. or-; ny part. thereof: orragainst:any.;::: building or buildings or other improvements erected or made to be erected or made•thereon, or..against•:any monies due:or grow due to CONTRACTOR, in accordance with any statute, state or federal, or. any cause whatsoever:'. SUBCONTRACTOR;' further covenants to release and hereby does release the premises upon which the.project is located and each:anc;:every pait''i thereof and any and all buildings that may now or hereafter be erected'thereon, and .any. monies '.due:or?.to'-grow due",to : ":` CONTRACTOR from any and every lien; charge or claim of arty:nature whatsoever tl at. SUBCONTRACTORmightotherwise at any time have against the same or any part thereof, for work.done.or'to be done, rriaterials':fumished or•to:be:.fumished or:. ':.%upon any other ground whatever growing out of or in any way connected with of in'relation. to the erection and' construction :of'; `. any building or buildings upon the said premises. SUBCONTRACTOR.agrees,to indemnify CONTRACTOR: ano,:therbO finer , .,'for any and all damages, costs and'. expenses, including reasonable attorneys' fees, sustained or incurred in'°conrtection therewith. :x . :20.. WARRANTY SUBCONTRACTOR hereby guarantees all :labor, materials, articles,.;supplies.;arid•.WORK;*.furnished hereunder against all defects which-..may develop within one : (1) year from date, of., acceptance by Owner :or-'.,:withinthe guarantee period set 'forth in the OWNER CONTRACT,. whichever is. longer::Pursuant -.'to sucf ` guarantee, SUBCONTRACTOR agrees. to remove, repair and/or. replace,':.as CONTRACTOR may..:require, ;without:'charge. to: CONTRACTOR, at the convenience of the Owner, any and all defective workmanship, materials; equipment:aiid. ORK, to pay any and all costs, expenses, damages, and architectural and -engineering fees including 'labor. charges;, in cgnnection;'s.:'; :.:therewith, as well as for the removal,-.repair and. replacen•ientof anyother work. which:maybe.damaged as a result thereof, to remedy any defects, latent or patent, except those due to ordinary wear and tear or improper use and aintenance "and to "'..,pay for all damage to the . of Owner, CONTRACTOR ,or an other, a.' ` ' ' property y p rry'resulting:therefrbm Aifb6ieantees.,.and:.x < :warranties herein provided shall extend to Owner and to CONTRACTOR.> :The foregoing shall be,in, addition,t6, and,aiot in, lieu ^,: of, any and all warranties. and remedies.required by the OWNER CONTRACT or,.,provided;by law;: SUBC1 NTRACTQR will submit the Warranty Form attached as Exhibit l to CONTRACTOR prior to and as a condition of receipt of.`?nal paymept under rthis SUBCONTRACT. :. 21. ASSIGNMENT SUBCONTRACTOR agrees: (a) it will-not assign this SUBCONTRACT?'or'any of the monies due o? to°'' ?r :;•. ..'.,',become due it hereunder, nor sublet any portion of WORK without'first obtaining written.conent of CON'TRACTO'R,. and (b) CONTRACTOR shall have the right to set off against any monies due:SUBCONTRACTOR under-this SU.BCO;..a NTRACT claim or. claims of CONTRACTOR 'against SUBCONTRACTOR. Where:: CONTRACTOR-*consents a ' p sublett i ob ng;`?:such'! consent shall not be construed to create any rights in such subsubcontractor against'CONTRACTOR,. nd a]I:. e- liga ub tions ;':" and responsibilities assumed hereunder by SUBCONTRACTOR shall likewise be assumed by such. s subcontracto r. to?the extent of WORK sublet. 7/10/00. Page 5 of 7 SUBCONTRACTOR. CONTRACT. +e r ' JOB Executive Park IV Office Building SUBCONTRACTOR: John F. WaltecEzcavating;±Inc: 22. CONTRACTOR TERMINATION In the event of the.terminatiomof.the OWNER CONTRACTS=this SUR.CQNTRAGT..stialI be terminated upon notice of CONTRACTOR to SUBCONTRACTOR.. -In the. case`of_such•-temiination,,CONTRACTOR shall" ., ; only be liable for labor, materials, and equipment furnished and/or materials and equipment ored.specifically forth' 1NORK' of'this.SUBCONTRACT up to the date of receipt by SUBCONTRACTOR of such writtsn-ngti?e,'ofaerrpination';`•:but'onlyto tte:`:'::' :'. extent SUBCONTRACTOR is liable for same. CONTRACTOR shall 'not be. liable for. anticipated'Profts avid Qverhead?4:, f 23. APPROVAL OF SUBCONTRACT AND SUBCONTRACTOR% It is understood and:'agreed;that;Owne.r.:'and/or:;?4rchitect'' •r.:•. s. has the right to approve or disapprove this SUBCONTRACT or the employment of SUBCOtTRACTOR;withiri tep;(10)tdays:,: .:.? of the execution of this SUBCONTRACT or such longer time as may be specifiedby;the terms of the QWNER: CMTFk 4CT " In the event that Owner and/or Architect do not approve same, this SUBCONTRACT s;hall•become: null'and 24. JURISDICTIONAL LABOR DISPUTES All jurisdictional disputes.arising.'in connectioh;with .the'•perfprmance';of th r . WORK sndl©r turnlshing of melerlal or equipment shalle subject to and promptly eubmittedby:SUBCONTRACTORio the' then existing. board for the 'settlement of jurisdictional disputes. in the building and construction: industry;for adjustmentarid settlement. 25: CLAIMS AND DISPUTE RESOLUTION All claims, disputes and; other matters.in question;arising,out.of„:or;elating'to: y ' this SUBCONTRACT, or the breach thereof, may, at the tole election of CONTRACT.QR,: bei?lecf :. . SUBCONTRACTOR hereby agrees that CONTRACTOR shall..have the right; ao iinelude'SU.BCONTRACTOR; consolidation,. joinder or in any other manner, in any arbitration proceedings. or, litigation involving the Ownerl;.rrespetive of ,? ... who originally initiated such proceedings. The foregoing agreement to arbitrate.shall `be<:spec?callyehforceable>under the,j prevailing arbitration law. Unless CONTRACTOR elects otherwise; any arbitration proceedings hereunder sljall `64,' held in ". Philadelphia,' Pennsylvania. The.award' rendered by the arbitrators shall -be '.final' and.`.judgment ;may{be."enter..6d ypon it in ;t accordance with applicable law in any Court having jurisdiction thereof.'. Pending '.determmaiiori;::there::shall :berno work;5;; stoppage by SUBCONTRACTOR. `a'-• .,`'' .26. LABOR PRACTICES No discrimination shall be made against any employees, or in the employment of any applicant' becauae.'of age, rare, sex, color, creed, national origin or handicap;-and SUBCONTRACTOR agrelos to no poi y; .cif #o ` comply with, 'Sectioh 711(a) of Title VII of the Civil Rights-,Act of 1%4; all Executive Orders dealing '.with.1-= uaI" "ployment.-... Opportunity, as the same may be amended from time to time, and any and all other Federal,.''State:or;Municipal,la's orl?; regulations regarding hiring and employment practices; and further agrees to complymith all of the.provisions.of:the OWNER.:.. '. CONTRACT pertaining thereto, including the filing of any and all certificates'of compliance'or other.. documents required by:=} any governmehtal agency.. 27. SAFETY AND COMPLIANCE SUBCONTRACTOR shall be responsible.to CONTRACTOR for SUBCONTRACTOR'S-'' compliance with all safety laws, rules and regulations relating to and during SUBCONTRACTOR'S perform rice. of the;UVORK':; .,fncluding, but not limited to,'all Federal,.State and local rules and regulations; promulgated .by.governmental:agencies.;arid'`:;`' :.. CONTRACTOR'S'and Owner's Safety rules as further described in Exhibit •E. 'SUBCONTRACTOR -;shall `indemni CONTRACTOR for any and all costs and expenses incurred by CONTRACTOR forfines, 'penalties .and corrrectiye measures; ;::;' resulting from acts of commission or omission by SUBCONTRACTOR,'its.subcontractors; materialmen,.agents; employees:;':.";. or assigns, resulting from their failure to comply with such .safety laws, rules and regulations. 28. SUBMITTALS 'SUBCONTRACTOR shall promptly. prepare and submit to CONTRACTOR -.such drawings; details;;: samples; etc. as may be required by the OWNER CONTRACT'S provided,'however, that CONTRACTOR shall have.no dut to discover any mistake, errors, or deviations therein from the OWNER CONTRACT' requirements, and CONTRACTOR'S or.. ".Architects approval thereof shall not relieve SUBCONTRACTOR from'. responsibility or. liability. Jor. any, mistakes,;:errors ' deviations, or of SUBCONTRACTOR'S obligation to perform its work in strict accordance with the OWNER CONTRACT. 29. PROTECTION OF WORK All WORK, materials 'and . equipment of. SUBCONTRACTOR shall - be protected' '.by' `-SUBCONTRACTOR at its own expense against deterioration, loss, theft, damage and injury: and SUBCONTRACTOR; and;`: not CONTRACTOR, shall be responsible therefor until completion and.. final acceptance of all WORK,:_under this:,": .:..SUBCONTRACT. SUBCONTRACTOR will be charged for any breakage or*, damage, whether ',to, the work' of:<:' . SUBCONTRACTOR or others, caused by SUBCONTRACTOR and CONTRACTOR. may repair or replace work or property so damaged, and charge the cost thereof to SUBCONTRACTOR. 30. LICENSES AND PERMITS SUBCONTRACTOR, at its own expense; shall -comply with all federal, state and focal laws'-....,- and ordinances applying or relating to the WORK and shall comply with and give to the proper authorities all required notices: ;:. 7/10/00. Page 61 of 7 SUBCONTRACTOR CONTRACT JOB Executive Park IV Office Building SUBCONTRACTOR `:iohn'.F:llllalter• Excavating,, Inc::s; relating to such WORK and procure and maintain all necessary licenses.and permits has required:by the. QINJVER C.ONTR/ Cj or.b law for the WORK. • '??i•, r,V."T1.`-:`'.. •31. CONSTRUCTION SIGNAGE SUBCONTRACTOR shall erect no signage at+the`:•-Project; without the wh 6n.; resent of=;+:::: CONTRACTOR. 32. PAYMENT AND PERFORMANCE BONDS Unless ex_ ckidedl on Exhibit J, SUBCONTRACTORahaltfumish Payment: and Performance Bonds-covering the faithful . performance of this SUBCONTRACT.:.and • payment- :`ooligations. arising; hereunder if Contract Sum is $100,000 or more. All Bonds shall be written on AIA document A31.1-1970.:Py. a S.'uret listed in:;"; ; the latest edition of the U.S. Department of the Treasury's Listing .of Approved .Sureties. (Departmenfdicular;570),?i4ND'be "-.; acceptable to CONTRACTOR. CONTRACTOR and Owner must be listed as Obligees on all-Bonds. ' No payment'shall^be?-":; :. made to SUBCONTRACTOR pursuant to this SUBCONTRACT priorto receipt.of acceptable Bonds:. 33. PRECEDENCE OF SUBCONTRACT Notwithstanding anything to the contrary; contained in the, OWNER'CbNTRACT; ., . in the event of a conflict between the provisions of this SUBCONTRACT and the.provisions of the.O'WNER:CONTRACT, the; more stringent provisions of this SUBCONTRACT shall prevail. In the event of a-conflict between the."provisions;of this;,',? ... SUBCONTRACT form and any other documents forming a part 'of this SUBCONTRACT. .the ;provisions of-'.this-t',, '.. SUBCONTRACT form shall prevail. 34. GOVERNING LAW This SUBCONTRACT shall be governed by the laws of the. State in which the Work.is„located.' unless provided otherwise by the OWNER CONTRACT. y 35. GIVING OF NOTICES All Notices, requests and other communications required or permitted to be given hereunder shall,'=_ be in writing and must be given by either personal delivery, certified mail return receipt requested or by a;prepaid generallyr;; recognized commercial courier service which supplies.a record of delivery. Notice shall be deemed to'have been:given upon;; 7,:. receipt or when tendered if delivery is refused or cannot be. effected because the party,.to whom, such :notice` is addressed. is no ; longer at the address then effective hereunder.. All `Notices shall be: sent to the.,address; of the parV as.listed -in:this - Party `, SUBCONTRACT. Either party to this SUBCONTRACT may change its address•for notice. by sending -notice to the. other ance with the terms and provisions herein. r=::iri.accord . 36:. ENTIRE AGREEMENT This SUBCONTRACT, constitutes' the entire and exclusive agreement between the parties hereto and supersedes and rescinds any and all prior understandings, representations:oragreements, whether written or. oral, not. incorporated herein. Neither this SUBCONTRACT nor any part hereof. shalf be changed, modified' `': except in writing signed by the parties hereto. '37. This SUBCONTRACT shall be binding upon the parties hereto and upon their respective heirs; executors, administrators,'" successors and assigns. SUBCONTRACTOR John F. Walter Excavating, Inc. ' THE NORWOOD COMPANY .. `. ' ' ' orat ATTEST: DATE: 7/10/00. Title: By: ATTEST: C DATE:' Page 7 of 7 Job blame:• Job Number: Job Location: 'Trade:. Site Date:' Au Executive Park IV Office Building 2208 Lower 41len Township Cumberland County, PA . ,work. 11 2006 The Norwood Company. Exhibit A - Scope bf Work I X . ' ?• ?? ? ? *••?•d•y??? Walter Ezcayatin Subcontractor: John F :v .12; ••.. elf '.`??' ?.J' ':?:i . 1 Contact: Brian Walter' r;, ` i,:?, ?t';•;`; '' „ _ Telephone: :` Facsimile: (717) 776=4566:. Cost Code: •.2200(9-x-x v. r.,.: :• ', .:s 'S•' : ''t, The following listed Items are intended to highlight the work of this subcontract and do not represent a 'qualification as to the completeness of the Drawings and Specifications. The work of this contract shall include, but not necessarily be limited to, the followin 1 ]Review All Bid Documents ? Including Geotechnical RepoAtated January 6, 20R$:ati 2 Vi Tax •1 :2 3 .4 :S 6 7 • 8 .9 1I 13 14 15 16 17 18 is 2C 21 - e as and Fills and Temp. Sediment & Erosion I I I, I. ] I and and ro st:- Drawin attached hereto ` ;: ". -r n ? ?+ : ' ; 1 hases - • ' " . ivn Work Only 77 d•CarificationsI- thru 6 :ludin PA 1-Call> =' -h "'•'-' • - .. .. ..':;,•?? :zip:: ?.= . b! a, Onl tad Widening and Traffic Signal Work" ?w,nr:n., .C.nnen n;nn ?,.,nnvi st>rmm?letinn .. ... . The Norwood Company Exhibit A - Scope of Work Job Nathe: Executive Park N Office Building Subcontractor: john F.:Walter Excavating, Inc. _ ... _ •?' '' ` • Job Number: 2208 Contact: Telephone: Brian Walter:''.. (717)776-3148 Job Location: Lower Allen Township imile: >tiae : `•;' (717) 776-4566 > `< Cumberland County' PA s Cost Code: ? 2200(9-x-x); ' . Sitewol k . . .: r <-?•?. •. :; ',??'s?< ??:..?,<. ?.'; 2006 Date: Au _ ;r. 7 New Concrete Sidewalks ? Layou% mana and coordinate only 8 Sawcut/Remove Paving ? .. . 9 Phase V Erosion Control Measures ? ?. t 10 Storm Drain c Modificati ns a and coordinate on :ka WL 8 11 New Pervious Pavin a and coordinateonl L 12 New Full As halt Pavin and Overla a e`and coordinate enl •` U ? 13 New Concrete Pavin ? La ou and coordinate 14 Stri in Markings, Site Si e y : ,.. . : ; : 15 Piezometers ? . . 16 Cuts and Fills ' ? ~ 17 Maintain use of 118 parking spaces at all times y 18 Provide and maintain temporary stone arkin ? .. 1.4 : `. Main Entrance Work (Including Alpha Lot I Remove Curbs and Walks ? ? :: t ical Subcontractor b Elect ` 2 Remove Lights and Poles r 3 Remove CMP Stone Inlets, Etc. +; `4 Remove Paving 5 Remove Trench Drain ? b others':" f t e i l 6 Remove Trees ? es r ocat on o Re • . ,;... _ ., 7 Remove Signs 8 Remove Island rock entrance;`: incl ding ecessa i t i i M ; ' trol Measures C i V E ? u ry; , s n a n a n Clean, and .. 9 .. on on ros Phase I remove at corn letion •• 10 As halt Pavin and Overla N ? • : Layout,, trF and coordinate only. p ew ? dinate onl d c 11 Markings, Site Si a e Striping oor La you mana an t? 12 , and Island Curbin t C ? Layout man and coordinate ont g e oncre ol -- rdinate only d 13 Concrete Walks V coo Layout, manage an - 14 Concrete Paving ? ? Layout? manage and coordinate only y 15 Strip/Stockpile/Replace Topsoil ? '' 16 Restore Site 71 <.- .::. 17 fe_m_?orary Access Drive 18 Construction Staging Area `` .19 Tempormy Site Access ? ' 20 Cuts and Fills ? 21 Bioretention Seedin ? Final seedin b others : 22 Detention Basin `` 23 Storm Drainage Modifications ? 24 Oulet Across Road 25 Piezometers ? ? 26 Final Seeding ? 27 Fla en and Barricades Expansion Parkin Lot Work 1 Remove and Dispose Curbs and Walks ? ? `2 Remove and Dispose Trees 3 Remove and Dispose Bride 4 Storm Drain Modifications 5 Stockpile and Replace Topsoil ? * te onl di d y na coor La ou manage an 6 New Concrete Curbing ? te onl di d na : 7 New Concrete Sidewalks na coor a an La out ma Subcontractor Contrac Job Name: Executive Park IV Office Building Job Number: 2208 :-_ .job Location: Lower Allen Township Cumberland County, PA :Trade: Sitework, `?? Datc: • 11 200 " Areas Concrete Curbs Concrete Island Concrete Pavements Replace Topsoil/Final S Restore Site Striping, Markings, Site Storm Drainage Modifrc Oulet Across Road Remove and Reset Mail Adjust all Manhole Cov Eradicate Existing Mazk Traffic Control Traffic Signal Work Allowances ADDlicable Boulders Bulk Roc Bulk Roc ' Trench R Trench R Mechanif Alternates , _. Qnn Rshihit The Norwood Company Exhibit A - Scope of Work . :. ; , ' ;. . : • c; . •.. ..: Subcontractor: John F. Wal terzExcavatitig, Inc `' = : . i, , 1!;r'.= ''.r , ' . . . ' " _ - Contact: " BtlanWaiter r.; .:.": .Z . ??. ' ..<..o- •., •.. Telephone: 71 776-3148" Facsimile: ' 717 776=4566' U•: Cost Code: 2200 9-x-x n, = '' ``? ?•" " r; R' l. Layout, manage and coordinate only I and Overlay ? La ou m arid cooidinate•onI '•t?.:: `.:.. Layout a and coordinateoni .E' i a ? ILayout;-manage and coordirate only and Traffic Signal Work ts, Etc. ? Add Alternate: See Exhibit J. <,.. . ? Add Alternate:. See Exhibit J.' Add Altemate:? See Exhibit J.. <3 :r.,;5:• :` . including stone entrance ? Add Alternate: See Exhibit J. ? Add Alternate: See Exhibit ? Add Alternate:`SeeEzhibit J. AddiAltemate' See Exhibit J: ' Add Alternate. -SeeExhfbit J:. din ? Add Alternate: `See'Exhibit J:.: ? > Add Alternate "See Exhibit J. = i a ? Add Alternate...` .gee Exhibit J: -e ` ions ? Add'Altemate.' See Exhibit 7. .` ? Add Alternate'. -See Exhibit J x "? Add'Altemate.'See'Exhibit J.: ?? • s ? Add AlterrrSte."5ee Exhibit J. M1 s ? Add Alternate. See Exhibit J. Aay. ? Add Alternate.`- See Exhibit J. ? Add Alternate. Sce Exhibit J. :: J This Scope of Work This Scope of Work I' $22.00/c. d): $90.00/c. led : 540.00/c, led : $95.00/c.' . filled : $4 .00/c. ?' pO This Sco a of Work .li' '?r.. ?'.7..X?.ZIy•?/.Y.y..' '?4y?.,•,'?1fi:?4 ry'4t:?.r• t"1: T?4'{.` Subcontractor /J! Cont ,?-XA It 4 0--? REAGER & ADLER, PC ATTORNEYS AND COUNSELORS AT LAW 2331 MARKET STREET CAMP HILL, PENNSYLVANIA 17011-4642 717-763-1383 TELEFAX 717-730-7366 WEBSITE: ReagerAdlerPC.com THEODORE A. ADLER + DAVID W. REAGER LINUS E. FENICLE THOMAS 0. WILLIAMS PETER R. WILSON Writer's E-Mail Address: Twllliams RtaaerAdlerPC.com SUSAN H. CONFAIR JOHN H. PIETRZAK RICHARD J. JOYCE +Certified Civil Trial Speclalist August 26, 2008 Via Certified Mail, Return Receipt Requested Kathleen Maloney Claim Executive Travelers Bond and Financial Products 1500 Market St. Suite 2900, West Tower Philadelphia, PA 19102 Re: Payment Bond Claim Notice Our Client: John F. Walter Excavating, Inc. Project: Executive Park Office Building IV Old Gettysburg Road, Mechanicsburg, PA Bond No.: 104769673 Bond Principal: Norwood Company Our File No.: 99-314.003 Dear Ms. Maloney: Please be advised that this law firm has been retained by John F. Walter Excavating, Inc. ("Walter"). Walter provided labor and materials relating to site work on the above-referenced project covered by the above-referenced payment bond. Walter completed its work under its contract with The Norwood Company ("Norwood") on April 11, 2008. As of this date, despite demand, Norwood has failed and refused to pay Walter the principal balance of $164,674.97 remaining due and owing. This letter shall constitute notice of Walter's claim and its intent to file a Complaint relating to the above-referenced payment bond provided by Norwood on the above-referenced project. I have enclosed a copy of the payment bond, which was provided by Norwood on the project. Kathleen Maloney August 26, 2008 Page 2 Walter reserves all rights to seek any and all legal remedies. Should you have any questions regarding this matter, please do not hesitate to call me. TOW/sc Enclosure cc: The Norwood Company Old Gettysburg Associates IV, LP John F. Walter Excavating, Inc. A 11 N a ca •0 11 c'? ? t+ Q B. ro 1 Q? aU3 3? CC ®C? y55b! Vf+'?O 41 a }. 41 m? { H O 1Q1ttp9 ?EdC, .•-O ?? i F Q.U t .-t41 I mU ? e r*i i 1 ff3 e ? 1?--y U C? W fA I e ft=m lic, U, 11.1 >1 cxb i roc ? \ 4 ? oO i 1*1 49L (0 Im- I m ?. IL i 44 [.- 1 i !*t t.7 1 i % j i I ' 1L d ¦ Co pmete items 1, 2, and 3. Also cornpiete A. Signature Item 4 If RestrictedDelivery is desired. ; ? Agent I ¦ Priftt your name and address on the reverse X... ? Addressee so that we can rd to you. B. R9MPikftd Name) C.. Date Delivery I ¦ A this Amb back a mailplece, ja at1 Z or nt Lpama!LM -\' n my its. D. Is delivery addreea diffe 1. A1i . ' to: If YES, enter bWe 1IC.. . j jV4N<l<- ' 3. Service lype L? ed Ma) ONprm Map I Istered ? ReN Receipt Ise IA } JA ? Insured Mail C.O.D. ?9ldZ 4. RestdcWl D*mry? Yes 12. Artkde N4 i in r?o?rr lwmfe tier - 7002 2 410 0004 1003 1261 mYM i PS Form 3811, February 2004 , Domestic Return Recel 1540] r Ie 1 0, 1* 1IC 1 IC 1 1< 1 i< It i Ic 11 o 1? V t is i Z i ? Ix ?« i«X 1< i 1< Ic ;% ic 1c Ic 1c 1< D ?? y.` . 1 AW. TRAVELERS J September 15, 2008 Thomas Williams, Esquire Reager & Adler 2331 Market Street Camp Hill PA 17011-4642 Re: Surety : Principal: Obligee: Claimant: Project: Bond No.: File No.: Dear Mr. Williams: Travelers Casualty & Surety Company of America The Norwood Company Old Gettysburg Associates IV, LP John F. Walter Excavating, Inc. Executive Park Office Building IV Old Gettysburg Road, Cumberland County, PA 104769673 0814934 SEP 17 .10 We are in receipt of communication from you indicating that your client wishes to file a claim on the above-referenced bond. To facilitate our independent investigation of the claim, we request that your client complete and return the enclosed claim form, attaching copies of all documents requested in the claim form. Our purpose in requesting information from you is to develop a complete understanding of the circumstances surrounding the claim. As such, if other information or documents exist which you feel would assist our evaluation of the claim we ask that you furnish that information as well. In the interim, we will correspond with The Norwood Company to gain an understanding of their position. This correspondence and all prior or subsequent communications and/or investigative efforts are made with the express reservation of all rights and defenses the Surety or The Norwood Company has or may have at law, equity or under the terms and provisions of the bond and contract documents. This reservation includes, without limitation, defenses that may be available under any applicable notice and suit limitation provisions. Subject to this strict and continuing reservation, we look forward to hearing from you. cc: The Norwood Company Katbleea Maloney Claim Eucutive Travelers Band and Financial Products 1500 Market Street Suite 2900, West Tower PhHadelphia, PA 19102 Phone: (267) 675-3108 Fax: (267) 675-3107 l-mail: kamalone®fravelers.com A member of ST. PAUL TRAVELERS Enclosure EXI?,d,-t ? TRAVELERS xathteeu Maioney Claim Executive Travelers Bond and Financial Products 1500 Market Street Suite 2900, West Tower Philadelphia, PA 19102 Pkone: (267) 675-3108 : Fax: (267).675-3'107 E-mail. kamalone(a)da m ftT *4 M. October 16, 2008 Thomas Williams, Esquire Reager & Adler 2331 Market Street Camp Hill PA 17011-4642 Re: Surety: Principal: Obligee: Claimant: Project: Bond No.: File No.: Dear Mr. Williams: Travelers Casualty & Surety Company of America The Norwood Company Old Gettysburg Associates IV, LP John F. Walter Excavating, Inc. Executive Park Office Building IV Old Gettysburg Road, Cumberland County, PA 104769673 0814934 With respect to your client's claim against the captioned project, you will recall that on September 15, 2008 the surety requested that John F. Walter Excavating, Inc. complete and return the claim form along with all documentation in support of its claim. To date, neither the completed claim form nor supporting documentation have been received. As a result, the surety must deny your client's claim. If you have any questions, please contact me. This letter shall not constitute a waiver or release of any of the surety's rights or defenses. tSmincerely,: Malone cutive cc: The Norwood Company Old Gettysburg Associates IV, LP A member of ST. PAUL TRAVELERS n n.a - a ? ?_. f ?• ti r a C --CEIVEC REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: wmartingReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for John F. Walter Excavating, Inc. I i O t)' 1008 Phila. Bond Claim JOHN F. WALTER EXCAVATING, INC. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No.: OS -'? 11 q C- fi CIVIL ACTION - LAW TRAVELERS CASUALTY AND SURETY : COMPANY OF AMERICA JURY TRIAL DEMANDED Defendant ACCEPTANCE OF SERVICE I hereby accept service of John F. Walter Excavating, Inc.'s Complaint on behalf of Defendant, Travelers Casualty and Surety Company of America, and I certify that I am authorized to do so. Dated: t V 09 J-1 Iq wE A) iM 1 0h / Name, n e Signature r-'> r` `= -?? rs) t }IT I REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire Attorney I.D. No. 67987 Email: TwilliamsgReagerAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: wmartingRealzerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for John F. Walter Excavating. Inc. JOHN F. WALTER EXCAVATING, INC. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Defendant : No.: 08-7118 C.T. : CIVIL ACTION -LAW JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: 1. a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena is sought to be served; 2. a copy of the notice of intent, including the proposed subpoena, is attached to this certificate; 3. no objection to the subpoena has been received; and 4. the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. j? /Date. January 13, 2008 ?j S. /Martin, Esquire REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire AttorneyI.D. No. 67987 Email: Twilliams(&ReagerAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: wmartin@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for John F. Walter Excavating Inc. JOHN F. WALTER EXCAVATING, INC. : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Defendant No.: 08-7118 C.T. CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff, John F. Walter Excavating, Inc. intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the issuance of the subpoena. If no objection is made the subpoena may be served. REAGER & ADLER, P.C. Date: December 11, 2008 /Vf/ 1 Thom O. Williams, Esquire Attorney I.D. No. 67987 Wayne S. Martin, Esquire Attorney I.D. No. 208078 . 2331 Market Street . Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Attorneys for Plaintiff JOHN F. WALTER EXCAVATING, INC Plaintiff V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 08-7118 C.T. : CIVIL ACTION -LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Records Custodian, The Norwood Company, 375 Technology Drive, Malvern, PA 19355 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: All contract documents between The Norwood Company and Old Gettysburg Associates IV, LP c/o Select Capital Commercial Properties, Inc. and any and all billing files, payment applications and documents regarding the timing, amount and composition of all payments made to The Norwood Company for the construction project at the Executive Park Office Building IV, 980 Century Drive, Mechanicsburg, Pennsylvania. at Reager & Adler, P.C., 2331 Market Street, Camp Hill, Pennsylvania 17011 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name Thomas O. Williams, Esquire Address: Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Supreme Court ID# 67987 Attorney For: Plaintiff, John F. Walter Excavating, Inc. Prothonotary/Clerk, Civil Division Date: Seal of the Court BY THE COURT: Deputy ? • 1 REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire Attorney I.D. No. 67987 Email: TwilliamsaReagerAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: wmartin.AReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for John F. Walter Excavating, Inc. JOHN F. WALTER EXCAVATING, INC. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. No.: 08-7118 C.T. : CIVIL ACTION -LAW TRAVELERS CASUALTY AND SURETY : COMPANY OF AMERICA JURY TRIAL DEMANDED Defendant CERTIFICATE OF SERVICE I hereby certify that on the date set forth below true and correct copies of the Notices of Intent to Serve a Subpoena to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 was served on the following individual via United States First Class Mail, postage prepaid as follows: Kathleen Maloney Claim Executive Travelers Casualty and Surety Company of America 1500 Market Street Suite 2900, West Tower Philadelphia, PA 19102 Dated: December 11, 2008 Z,Iwy - Wayne . Martin, Esquire C= ---- REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire Attorney I.D. No. 67987 Email: TwilliamsgReagerAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: wmartin&ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for John F. Walter Excavating, Inc. JOHN F. WALTER EXCAVATING, INC. : IN THE COURT OF COMMON PLEAS Plaintiff V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA : CUMBERLAND COUNTY, PENNSYLVANIA No.: 08-7118 C.T. CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendant CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: 1. a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena is sought to be served; 2. a copy of the notice of intent, including the proposed subpoena, is attached to this certificate; 3. no objection to the subpoena has been received; and 4. the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Date: January 13, 2008 4 Wayne . Martin, Esquire . REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire Attorney I.D. No. 67987 Email: Twilliams(a_),ReagerAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: wmartin@ReagerAdierPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for John F. Walter Excavating, Inc. JOHN F. WALTER EXCAVATING, INC. : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No.: 08-7118 C.T. CIVIL ACTION -LAW TRAVELERS CASUALTY AND SURETY : COMPANY OF AMERICA :JURY TRIAL DEMANDED Defendant NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff, John F. Walter Excavating, Inc. intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the issuance of the subpoena. If no objection is made the subpoena may be served. REAGER & ADLER, P.C. V Date: December 11, 2008 /f,/Z TThon-las 0. Williams, Esquire Attorney I.D. No. 67987 Wayne S. Martin, Esquire Attorney I.D. No. 208078 2331 Market Street Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Attorneys for Plaintiff JOHN F. WALTER EXCAVATING, INC. Plaintiff V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 08-7118 C.T. CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Records Custodian Old Gettysburg Associates IV LP c/o Select Capital Commercial Properties, Inc., 4718 Old Gettysburg Road Mechanicsburg PA 17055 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: All contract documents between The Norwood Company and Old Gettysburg Associates IV, LP c/o Select Capital Commercial Properties, Inc. and any and all billing files, payment applications and documents regarding the timing, amount and composition of all payments made to The Norwood Company for the construction project at the Executive Paris Office Building IV, 980 Century Drive, Mechanicsburg, Pennsylvania. at Reager & Adler P.C., 2331 Market Street Camp Hill Pennsylvania 17011 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name Thomas O. Williams Esquire Address: Reager & Adler P.C. 2331 Market Street Camp Hill PA 17011 Telephone: (717) 763-1383 Supreme Court ID# 67987 Attomey For: Plaintiff, John F. Walter Excavating, Inc. BY THE COURT: Prothonotary/Clerk, Civil Division Date Seal of the Court Deputy p.. ?,.! Fri To the within named Plaintiff and Defendants: You are hereby notified to plead to the enclosed New Matter andCrossclaim within twenty(20) days from service hereof or a judgment may be entered against you. /s/ Stanley B. Edelstein Attorney for Defendant Travelers Casualty and Surety Company of America JACOBY DONNER, P.C. Stanley B. Edelstein, Esquire 926373 1700 Market Street Suite 3100 Philadelphia, PA 19103 215-563-2400 JOHN F. WALTER EXCAVATING, INC. Plaintiff, VS. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Defendants. Attorney for Defendant, Travelers Casualty and Surety Company of America IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 08-7118 C.T. CIVIL ACTION - LAW ANSWER AND NEW MATTER OF TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA TO PLAINTIFF'S COMPLAINT TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA. ("Travelers"), answers Plaintiff's Complaint as follows: 1. Denied. After reasonable investigation, Travelers is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 1, and accordingly, the (00032102;v1) averments of Paragraph 1 are denied. 2. Denied as stated. Although it is admitted that Travelers maintains a place of business at 1500 Market Street, Suite 2900, it is denied that is Travelers' principal place of business. Travelers admits the remaining averments of Paragraph 2. 3. Admitted. 4. Admitted 5. Admitted in part, denied in part. It is admitted only that Norwood entered a written subcontract for the Project with Plaintiff dated September 11, 2006, and that a copy of the subcontract form is attached to the Complaint as Exhibit "B." It is denied that the subcontract form constitutes the entire subcontract between Norwood and Plaintiff, because the subcontract form incorporates other documents that are not attached as Exhibit "B," and that Exhibit does not include Exhibits "B" thru "K" to the subcontract form, which are explicitly referenced on the first page of the subcontract form. The remaining averments of Paragraph 5 are denied as an attempt to characterize a document or as a conclusion of law. 6. Admitted. 7. Admitted. 8. Denied. The averments of Paragraph 8 constitute an attempt to characterize a written contract or a conclusion of law. 9. Denied. The averments of Paragraph 8 constitute an attempt to characterize a written contract or a conclusion of law. 10. Admitted in part, denied in part. It is admitted only that Plaintiff provided labor and materials. After reasonable investigation, Travelers' is without knowledge as to the date that Plaintiff last performed work on the Project, and accordingly, the averment that it last did so on {00032102;v1} or about April 11, 2008 is denied. Because Travelers does not know to what the phrase "the labor and materials" in the first line of Paragraph 10 refers, it denies Paragraph 10 to the extent "the labor and materials" can be read as being different from "work." Because the Owner of the Project has complained about Plaintiffs performance on the Project and has not released final payment for Plaintiff s work, Travelers denies that all work was completed in a good and workmanlike manner. In addition, as set forth in the New Matter, Plaintiff did not complete certain work, for which it signed a credit Change Order. 11. Denied. Travelers does not know what Plaintiff means in alleging that Norwood received and accepted all labor and materials provided by Plaintiff for the Project, and accordingly, denies Paragraph 11. 12. Denied. It is admitted only that plaintiff billed Norwood a total of $1,293,012.45 and that Plaintiff to date has been paid a total of $1,105,505.97. It is denied that any amount is currently owed to Plaintiff on the basis that the Owner has not yet made payment to Norwood for Walters' unpaid work, and that Walters signed a credit change order for certain work that it did not perform. 13. Denied. The averments of Paragraph 13 constitute an attempt to characterize a written contract and/or a conclusion of law. 14. Denied. Although it is admitted that Norwood has failed to pay Plaintiff the amount claimed by Plaintiff in its Complaint, it is denied that that amount, or any portion of that amount, is "outstanding" or presently due to Plaintiff. 15. Denied. The averments of Paragraph 15 constitute a conclusion of law. 16. Admitted in part, denied in part. It is admitted that Plaintiff provided Travelers and Norwood with the letter dated August 26, 2008 and attached to the Complaint as Exhibit "C." {00032102;v1} To the extent Plaintiff alleges this was proper notice as required by the bond, any such averment is a conclusion of law, and is denied. 17. Denied. The averments of Paragraph 17 constitute an attempt to characterize a written contract and/or a conclusion of law. 18. Denied. It is admitted that Exhibit "D" to the Complaint is a copy of a letter from Travelers dated September 15, 2008. The remaining averments of Paragraph 18 are denied as a characterization of a document. 19. Admitted in part, denied in part.. It is admitted only that Travelers sent Plaintiff the letter dated October 16, 2008 and attached to the Complaint as Exhibit E. It is denied that Travelers failed to conduct any investigation; to the contrary, investigation showed that payment to Plaintiff was not due under its subcontract with Norwood, and that Owner was withholding final payment on account of what Owner alleged were deficiencies in Plaintiff's performance and what Owner alleged was an improper taking of topsoil. The remaining averments are denied as an attempt to characterize documents. 20. Denied. The averments of Paragraph 20 constitute a conclusion of law. 21. Denied. Although it is admitted that Travelers has access to certain documentation and has access to certain documentation through Norwood, because the Project Owner has not provided Norwood with documentation justifying its refusal to pay Norwood for Walters' work, Travelers denies that it has or has access to all documentation related to Plaintiff's claim. 22. Denied. The averments of Paragraph 22 constitute a conclusion of law. By way of further answer, the condition precedent to which Plaintiff agreed in its subcontract--- that Owner pay Norwood for Plaintiffs work--- has not been satisfied because Owner has not paid Norwood for Plaintiff s work. {00032102;v1} 23. Denied. It is admitted only that Travelers has not satisfied Plaintiff's claim. The remaining averment of Paragraph 23 is a conclusion of law to which no response is required. 24. Denied. Paragraph 24 is denied as a conclusion of law. 25. Denied. Paragraph 25 is denied as a conclusion of law. WHEREFORE, Travelers respectfully requests that judgment be entered in its favor, and against Plaintiff. NEW MATTER 26. Travelers incorporates by reference Paragraphs 1 through 25. 27. The Complaint fails to state a cause of action against Travelers. 28. Paragraph 5 of the subcontract form signed by Plaintiff for the Project provides, in part: "SUBCONTRACTOR acknowledges that a condition precedent to payment of SUBCONTRACTOR is that Contractor is paid by Owner." [boldface in original]. 29. Walters is not entitled to $165,483.48 of the $187,506.48 claimed in its Complaint because Owner has not yet paid that amount to Norwood on account of what Owner claims are deficiencies in Walters' performance and its wrongful taking of topsoil. 30. Because Owner has not yet paid Norwood $165,483.48 of the amount claimed by Plaintiff, the condition precedent of Paragraph 5 of the subcontract between Norwood and Plaintiff has not yet been satisfied. 31. The difference between the $187,506.48 amount claimed by Plaintiff and the $165,483.48 being held by Owner on account of its complaints about Plaintiff's performance is $22,023.00 32. In Change Order No. 10, Plaintiff agreed to a deduction from its Contract Sum of $22,023.00 on account certain work it did not perform with respect to storm structures and (00032102;v1) associated piping. A true and correct copy of that Change Order is attached hereto as Exhibit 46X9 33. Plaintiff now disputes Change Order 10, despite the fact that it had previously agreed to its terms and signed that change order. 34. Having agreed to Change Order 10, and having signed Change Order 10, Plaintiff has waived any claim to the $22,023.00 that it credited back to Norwood in Change Order 10. 35. Having agreed to Change Order 10, and having signed Change Order 10, Plaintiff has no claim to the $22,023.00 that it credited back to Norwood in Change Order 10. 36. Norwood has paid all sums due to Plaintiff for its work on the Project. 37. Because pursuant to the terms of its subcontract with Norwood, funds not yet paid by the Owner are not yet due to Plaintiff, and because the Owner has withheld those funds specifically alleging deficiencies with Plaintiffs' performance and a wrongful taking of topsoil by Plaintiff, Plaintiff is not yet entitled to further payment for the Project, and has no claim against the Payment Bond. 38. Travelers is entitled to the benefit of every defense available to its Principal on the Bond, Norwood. WHEREFORE, Travelers respectfully requests that judgment be entered in its favor, and against Plaintiff. {00032102;v1} J) B Company of Ameriea {00032102;v1} Travelers Casualty And Surety EXHIBIT A 1 Norwood Subcontractor Change Order Norwood Contractors • Construction Managers • Design Butiders Norwood Detailed, Grouped by Each Number Executive Park IV Office Building Project # 2208 4714 Old Gettysburg Road Tel: 717 753-7213 Mechanicsburg, PA 17055 Fax: 717 763-7215 Date: 912812007 To Subcontractor/Vendor: John F. Walter Excavating, Inc. Contract Date: 9//112006 P.O. Box 175 Contract Number: 012 Newville, PA 17241 Change Order Number: 010 Vendor No.: The Contract is hereby revised by the following items: Back charge for storm structures 1-1, MH-9, 1-2. EW-1, OS-1, and associated piping installed by Handwerk Excavating PCO Item # Description Cost Code No. Amount 067 001 Storm structures and piping from 1-1, MH-9, 1-2, 02200 ($ 22,023.00) EW-1, and OS-1 c? , , The original Contract Value was .................................................................................................... $ 1,177,863.00 Sum of changes by prior Subcontract Change Orders .................................................... $ 114,494.90 The Contract Value prior to this Subcontract Change Order was ........................................... $ 1,292,357.90 The Contract Value will be changed by this Subcontract Change Order in the amount of ................. ($ 22,023.00) The new Contract Value including this Subcontract Change Order will be ................................ $ 1,270,334.80 The Norwood Company CONTRACTOR { 4732 Gettysburg Road, Mechanicsburg, PA 17055 ADDRESS Brian Ruh! John F. Walter Excavating, Inc. SUBCONTRACTOR/VENDOR P.O. Box 175, NewAte. PA 17241 ADDRESS J. Brian Walter Proect er VP TIT < TITLE a2 , ^ SIG A E • ?? URE ( + r7 DA I DATE Page 1 of 1 VERIFICATION Kathleen Maloney, subject to the penalties of 18 Pa. S. §4944 relating to unworn falsification to authorities, deposes and says that she is a Claim Executive for Travelers Casualty and Surety Company of America, that she is authorized to sign this verification on its behalf, that she has read the foregoing Answer and New Matter, and that the facts set forth therein are true and correct to the best of her knowledge, information and belief. {00031805.v1} JACOBY DONNER, P.C. Stanley B. Edelstein, Esquire #26373 1700 Market Street Suite 3100 Philadelphia, PA 19103 215-563-2400 JOHN F. WALTER EXCAVATING, INC. Plaintiff, VS. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Defendants. Attorney for Defendant, Travelers Casualty and Surety Company of America IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 08-7118 C.T. CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Stanley B. Edelstein, hereby certify that on the date indicated below, I caused a true and correct copy of the foregoing Answer and New Matter of Travelers Casualty and Surety Company of America to Plaintiff's Complaint to be served upon the Plaintiff via first class mail: Thomas O. Williams, Esquire Reager & Adler, PC 2331 Market Street Camp Hill, PA 17011 J I {00032940;v1} Travelers Casualty and Surety Company of America C ? 0n r .a?. , rite i A -fir C3i `?7 JACOBY DONNER, P.C. By: Stanley B. Edelstein, Esquire Attorney I.D. NO. 26373 Email: sdelstein@jacobydonner.com 1700 Market Street, Suite 3100 Philadelphia, PA 19103 (215) 563-2400 JOHN F. WALTER EXCAVATING, INC. PLAINTIFF, VS. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICAN DEFENDANT COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-7118 CIVIL DIVISION PRAECIPE TO ISSUE WRIT OF SUMMONS TO JOIN ADDITIONAL DEFENDNANTS TO THE PROTHONOTARY: Kindly issue a Writ of Summons to join: Old Gettysburg Associates, IV, L.P. 4718 Old Gettysburg Road Mechanicsburg, PA 1705 and Select Capital Commercial Properties, Inc. 4718 Old Gettysburg Road Mechanicsburg, PA 1705 As Additional Defendants in this action Dated: February 4, 2009 t00034461;v1} JACOBY DONNER, P.C. By: Stanley B. Edelstein, Esquire Attorney I.D. NO. 26373 Email: sdelstein@jacobydonner.com 1700 Market Street, Suite 3100 Philadelphia, PA 19103 (215) 563-2400 JOHN F. WALTER EXCAVATING, INC. COURT OF COMMON PLEAS PLAINTIFF, CUMBERLAND COUNTY VS. NO. 08-7118 TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICAN CIVIL DIVISION DEFENDANT WRIT OF SUMMONS To: Old Gettysburg Associates, IV, L.P. 4718 Old Gettysburg Road Mechanicsburg, PA 17055 and Select Capital Commercial Properties, Inc. 4718 Old Gettysburg Road Mechanicsburg, PA 17055 You are notified that Defendant Travelers Casualty and Surety Company of America has joined you as additional defendants in this action, which you are required to defend. BY THE COURT: Date: o??L?fl Seal of the Court 64az Pr onotary, Civil Division CERTIFICATE OF SERVICE I, MaryEllen A. Daley, Paralegal, hereby certify that a true and correct copy of the foregoing Praecipe to Issue Writ of Summons To Join Additional Defendant and Writ of Summons were served on the date set forth below, by first class mail, postage prepaid, upon the following: Thomas O' Williams, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Date: February 3, 2009 \Q?? MaryEllen . aley, Paralegal t00034465;v1} r.a i' TT ?T 6 C: C:] SHERIFF'S RETURN - REGULAR CASE NO: 2008-07118 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WALTER JOHN F EXCAVATING INC VS TRAVELERS CASUALTY AND SURETY STEVE BENDER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT TO ADD'L DEFEN. was served upon OLD GETTYSBURG ASSOCIATES, IV, L.P. the DEFENDANT , at 0010:00 HOURS, on the 12th day of February-, 2009 at 4718 OLD GETTYSBURG ROAD MECHANICSBURG, PA 17055 by handing to BRENDA SCHUBAUER OFFICE MANAGER-SELECT CAPITAL a true and attested copy of WRIT TO ADD'L DEFEN. together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge Sworn and Subscibed to before me this of So Answers: 18.0 12.660 .00 , 10.00 R. Thomas Kline .00 40.60 02/13/2009 JACOBY DONNER PC By: day Deputy heriff A. D. ?4 ?7 t_? ?rt :?t ? ; t? s ?-„: ? . f .+ .?: r ., u.? SHERIFF'S RETURN - REGULAR CASE NO: 2008-07118 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WALTER JOHN F EXCAVATING INC VS TRAVELERS CASUALTY AND SURETY STEVE BENDER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT TO ADD'L DEFEN. was served upon SELECT CAPITAL COMMERCIAL PROPERTIES INC. the DEFENDANT , at 0010:00 HOURS, on the 12th day of February-, 2009 at 4718 OLD GETTYSBURG ROAD MECHANICSBURG, PA 17055 BRENDA SCHUBAUER by handing to OFFICE MANAGER a true and attested copy of WRIT TO ADD'L DEFEN. together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge Sworn and Subscibed to before me this So Answers: 6.00 .00 .00 10.00 R. Thomas Kline .00 16.00 02/13/2009 JACOBY DONNER PC By: gd??i z? day 15ej?-uty Sheriff of A. D. .? ?? ? ?-;-? ri ??4? _? ? ?^': ?- ;.? ? REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire Attorney I.D. No. 67987 Email: Twilliamsna,ReagerAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: wmartin(@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for John F. Walter Excavating, Inc. JOHN F. WALTER EXCAVATING, INC. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : No.: 08-7118 C.T. CIVIL ACTION - LAW TRAVELERS CASUALTY AND SURETY : COMPANY OF AMERICA JURY TRIAL DEMANDED Defendant PLAINTIFF'S REPLY TO NEW MATTER And now comes Plaintiff, John F. Walter Excavating, Inc. ("Walter"), by its undersigned attorneys, Reager & Adler, PC, and submits this Reply to Defendant, Travelers Casualty and Surety Company of America's, ("Travelers") New Matter as follows: 26. No responsive pleading required, but it should be noted that Travelers' Answers to Paragraphs 1 through 25 do not line up with the Averments in the Complaint. 27. Denied. Paragraph 27 is denied as a conclusion of law. 28. Denied as stated. The subcontract is a written document and speaks for itself. To the extent that the averments of Paragraph 28 are inconsistent therewith, said averments are denied. 29. Denied. To the extent Paragraph 29 constitutes a conclusion of law it is denied. By way of further answer, both Norwood and Owner have accepted all work performed by Walter and neither have provided Walter with proper notice that any of Walter's work for which it has billed is deficient in any way. Walter specifically denies that it wrongfully took the Owner's topsoil. To the contrary, Walter disposed of unsuitable or excess topsoil as required by the project specifications, which are incorporated by reference into the subcontract. The project specifications provide, in pertinent part: "Dispose of unsuitable or excess topsoil same as specified for disposal of waste material" and "Remove waste material, including unsatisfactory soil, trash, and debris, and legally dispose of it off Owner's property." A true and correct copy of the cited sections of the project specifications are attached hereto as Exhibit A. 30. Denied. To the extent Paragraph 30 constitutes a conclusion of law it is denied. By way of further answer, it is specifically denied that Norwood has not yet been paid by Owner for Walter's work and strict proof is demanded at trial. Further, even if Norwood has not been paid by Owner, Norwood eliminated any alleged condition precedent in the subcontract by unjustly preventing its fulfillment by not seeking or accepting payment from Owner. Norwood cannot benefit from its willful hindrance of the alleged condition precedent and is therefore liable for its breach of the subcontract. As the surety of the subcontract, Travelers is liable for Norwood's breach. 31. Denied. It is specifically denied that Norwood has not yet been paid by Owner for Walter's work and strict proof is demanded at trial. 32. Denied as stated. To the contrary, Walter agreed to a deduction from its Contract Sum of $22,023.00 while under duress and based on promises from Norwood that Norwood would promptly pay Walter the remaining $165,483.48 due Walter for its work. Walter would not otherwise have agreed to compromise its earned payment. Walter did not perform work with respect to storm structures and associated piping because such work was never part of Walter's subcontract. 2 33. Admitted. It is admitted that Walter agreed to Change Order 10 while under duress and with the understanding that Norwood would promptly pay Walter the remaining $165,483.48 due Walter for its work. It is further admitted that Walter disputes Change Order 10, because the work detailed in Change Order 10 was never part of Walter's subcontract. 34. Denied. Paragraph 34 is denied as a conclusion of law. 35. Denied. Paragraph 35 is denied as a conclusion of law. 36. Denied. It is specifically denied that Norwood has paid all sums due Walter for its work on the Project. To the contrary, Norwood owes Walter the principal amount of $187,506.48 for its work on the Project. 37. Denied. Paragraph 38 is denied as a conclusion of law. By way of further answer, it is specifically denied that Norwood has not yet been paid by Owner for Walter's work and strict proof is demanded at trial. Further, even if Norwood has not been paid by Owner, Norwood eliminated any alleged condition precedent in the subcontract by unjustly preventing its fulfillment by not seeking or accepting payment from Owner. Norwood cannot benefit from its willful hindrance of the alleged condition precedent and is therefore liable for its breach of the subcontract. As the surety of the subcontract, Travelers is liable for Norwood's breach. Both Norwood and Owner have accepted all work performed by Walter and neither have provided Walter with proper notice that any of Walter's work for which it has billed is deficient in any way. Walter specifically denies that it wrongfully took the Owner's topsoil. To the contrary, Walter disposed of unsuitable or excess topsoil as required by the project specifications. 38. Denied. Paragraph 38 is denied as a conclusion of law. WHEREFORE, Plaintiff, John F. Walter Excavating, Inc., demands judgment in its favor and against Defendant, Travelers Casualty and Surety Company of America, in the amount 3 of $187,506.48 plus interest, costs, attorney's fees and such other relief as the Court deems appropriate. Respectfully submitted, REAGER & A R, P. Date: April 20, 2009 Tho . Williams, Esquire Attorney I.D. No. 67987 Wayne S. Martin, Esquire Attorney I.D. No. 208078 2331 Market Street Camp Hill, PA 17011-4642 (717) 763-1383 Attorneys for Claimant F: I , EXECUTIVE PARK BUILDING IV Site Clearing Project No. 0413 Section 02100 Page 3 1. Restore damaged improvements to their original condition, as acceptable to Owner, at the expense of the contractor. 3.2 SITE CLEARING A. General: Remove trees, sbrubs, Bass, and other vegetation, improvements, or obstructions as required to permit installation of new construction. Remove similar items elsewhere on site or premises as specifically indicated. "Removal" includes digging out and offshe disposing of stumps and roots. B. Cut minor roots and branches of trees indicated to remain in a clean and carefirl manner, where such roots and branches obstruct installation of new construction. C. Topsoil: Topsoil is defined as friable clay loam surface soil found to a depth of not less than 4 inches. Satisfactory topsoil is reasonably free of subsoil, clay lumps, stones, and other objects over 2 inches in diameter, and without weeds, roots, and other objectionable material. D. Ship topsoil to whatever depths encountered in a manner to prevent intermingling with underlying subsoil or other objectionable material. E. Remove heavy growths of grass from areas before stripping. F. Stockpile topsoil in storage piles in areas indicated or directed Construct storage piles to provide free drainage of surface water. Cover storage piles in accordance with Erosion and Sedimentation Control Plan to prevent wind erosion. G. Dispose of unsuitable or excess topsoil same as specified for disposal of waste material H. Clearing and Grubbing: Clear site of trees, shrubs, and other vegetation, except for those indicated to be left standing. , 1. Completely remove stumps, roots, and other debris protruding through ground surface. J. Removal of Improvements: Remove existing above-grade and below grade improvements as indicated and as necessary to facilitate new construction. 3.3 UTILITIES A. Owner will arrange for disconnecting and sealing indicated utilities that serve existing structures before site clearing when requested by Contractor. I . Verify that utilities have been disconnected and capped before proceeding with site clear- ing-13- Locate, identify, disconnect, and seal or cap off utilities indicated to be removed. EXECUTIVE PARK BUILDING IV Project No. 0413 .Earthwork Section 02200 Page 11 B. Repair and reestablish grades to specified tolerances where completed or partially completed surfaces become eroded, nutted, settled, or where they lose compaction due to subsequent con- struction operations or weather conditions. 1. Scarify or remove and replace soil material to depth as directed by Engineer, reshape and recompact. C. Where settling occurs before Project correction period elapses, remove finished surfacing, backfill with additional soil material, compact, and reconstruct surfacing. 1. Restore appearance, quality, and condition of finished surfacing to match adjacent work, and eliminate evidence of restoration to the greatest extent possible. 3.21 DISPOSAL OF SURPLUS AND WASTE MATERIALS A. Disposal: Remove surplus satisfactory soil and waste material,, including unsatisfactory soil, trash, and debris, and legally dispose of it off Owner's property. B. Disposal: Transport surplus satisfactory soil to designated storage areas on Owners property. Stockpile or spread soil as directed by Engineer. C. Remove waste material, including unsatisfactory soil, trash, and debris, and legally dispose of it off Owners property. END OF SECTION VERIFICATION I, J. Brian Walter, hereby verify that I am the President of John F. Walter Excavating, Inc., and, as such, I am authorized to verify that the averments of the Reply to New Matter are true and correct to the best of my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. JOHN F. WALTER EXCAVATING, INC. Dated: April 17, 2009 By: an Walter, President REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire Attorney I.D. No. 67987 Email: TwilliamsaReagerAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: wmartinaa,Reag_erAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for John F. Walter Excavating, Inc JOHN F. WALTER EXCAVATING, INC. Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 08-7118 C.T. CIVIL ACTION -LAW TRAVELERS CASUALTY AND SURETY : COMPANY OF AMERICA JURY TRIAL DEMANDED Defendant CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing Proof of Claim was served via first class U.S. mail, postage prepaid, to the following: Stanley B. Edelstein Jacoby Donner, PC 1700 Market Street, Suite3100 Philadelphia, PA 19103 Dated: April 20, 2009 I r 'aL?? c) J ica Shull t:?{; = r a FILE ?cL Fll? k , G.;'" (`;TAY -1 1 2009 AHR 21 rl 11: 4 7 REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire Attorney I.D. No. 67987 Email: TwilliamsaReaperAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: wmartingReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for John F. Walter Excavating Inc. JOHN F. WALTER EXCAVATING, INC. Plaintiff V. IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No.: 08-7118 C.T. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA V. Defendant : CIVIL ACTION - LAW OLD GETTYSBURG ASSOCIATES, IV, L.P and SELECT CAPITAL COMMERCIAL PROPERTIES, INC. : JURY TRIAL DEMANDED Additional Defendants : CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: 1. a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena is sought to be served; 2. a copy of the notice of intent, including the proposed subpoena, is attached to this certificate; 3. no objection to the subpoena has been received; and 4. the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Date: May 11, 2009 - ? J W e S. Martin, Esquire REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire Attorney I.D. No. 67987 Email: Twilliams@,Reag_erAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: wmartinQReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone:, (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for John F. Walter Excavating, Inc. JOHN F. WALTER EXCAVATING, INC. Plaintiff V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Defendant V. : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 08-7118 C.T. : CIVIL ACTION - LAW OLD GETTYSBURG ASSOCIATES, IV, L.P and SELECT CAPITAL COMMERCIAL PROPERTIES, INC. : JURY TRIAL DEMANDED Additional Defendants : NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiff, John F. Walter Excavating, Inc. intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the issuance of the subpoena. If no objection is made the subpoena maybe served. Date: April 20, 2009 REAG?ER && ADLER, P.C Thomas . Williams, Esquire Attomey.I.D. No. 67987 Wayne S. Martin, Esquire Attorney I.D. No. 208078 2331 Market Street Camp Hill, PA 17011 464 Telephone: (717) 763-1383 Attorneys for Plaintiff JOHN F. ; I VALTER EXCAVATING, INC Plaintiff V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Defendant V. } IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No.: 08-7118 C.T. : CIVIL ACTION - LAW OLD GETTYSBURG ASSOCIATES; IV, L.P and SELECT CAPITAL COMMERCIAL PROPERTIES, INC. : JURY TRIAL DEMANDED Additional Defendants SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Records Custodian Rettew 2500 Gettysburg Road, Suite 100, Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: All contract documents between Rettew and Old Gettysburg Associates IV, LP c/o Select Capital Commercial Properties, Inc, and any and all documents related to Rettew's review of payment applications submitted by contractors and subcontractors, punch lists, all correspondence between Rettew and Old Gettysburg Associates IV, LP c/o Select Capital Commercial Properties, Inc. and/or John Ortenzio and any and all documents regarding any assertions of or questions of deficient or incomplete work performed by any contractors and subcontractors for the construction project at the Executive Park Office Building IV, 980 Century Drive, Mechanicsburg, Pennsylvania, also referred to as the Executive Park Campus, 4714 Executive Park Drive, 4714 Gettysburg Road, and as the Tressler Lutheran Site and believed to have a Rettew Project No. of 04-2746-002 ("Project") and all emails, notes and phone messages regarding the Project. at Reager & Adler P.C. 2331 Market Street, Camp Hill, Pennsylvania 17011 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name Thomas O: Williams. Esquire Address: Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Supreme Court ID# 67987 Attorney For: Plaintiff, John F. Walter. Excavating, Inc. Prothonotary/Clerk, Civil Division BY THE COURT: Date: Seal of the Court Deputy f REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire Attorney I.D. No. 67987 Email: TwilliamskReagerAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: wmartin@,ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for John F. Walter Excavating, Inc. JOHN F. WALTER EXCAVATING, INC Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Defendant V. No.: 08-7118 C.T. : CIVIL ACTION - LAW OLD GETTYSBURG ASSOCIATES, IV, L.P and SELECT CAPITAL COMMERCIAL PROPERTIES, INC. : JURY TRIAL DEMANDED Additional Defendants : CERTIFICATE OF SERVICE I hereby certify that on the date set forth below true and correct copies of the Notice of intent to Serve a Subpoena to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 was served on the following individual via United States First Class Mail, postage prepaid as follows: Jordan D. Cunningham, Esquire Cunningham & Chernicoff 2320 North Second Street PO Box 60457 Harrisburg, PA 17106-0457 Stanley B. Edelstein, Esquire Jacoby Donner, PC 1700 Market Street, Suite3100 Philadelphia, PA 19103 Dated: April 20, 2009 Wayne S. Martin, Esquire ?q (?Jr Ir* ?fir M9 MAI D' f 3 f-I'°i AI- : 0 JOHN F. WALTER EXCAVATING, INC Plaintiff V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Defendant V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 08-7118 C.T. CIVIL ACTION - LAW OLD GETTYSBURG ASSOCIATES, IV, L.P and SELECT CAPITAL COMMERCIAL PROPERTIES, INC. : JURY TRIAL DEMANDED Additional Defendants : AFFIDAVIT OF SERVICE On this, the 3 day of August, 2009 at /2' P o'clock -P-.m., I, WAYNE S. MARTIN, personally hand-delivered the Subpoena to Attend and Testify of which the attached is a true and correct copy, upon &ejv CC ss - kl- //__ WAYN MARTIN Sworn to and affirmed before me this _, .I day of &SAO 2009. _a- - oil NOT Y PUBLIC COMMONWEALTH O PPENNSYLVANIA Notarial Seal Cyntda L Cassel, Notary Pubic PexbmV Soro, DaupW County My Conrnireion Expires Aug. 3, 2010 Member, Pennsylvania Association of Notaries OF THE A li -4 P 12' 1 JOHN F. WALTER EXCAVATING, INC. Plaintiff V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 08-7118 C.T. V. : CIVIL ACTION - LAW OLD GETTYSBURG ASSOCIATES, IV, L.P and SELECT CAPITAL COMMERCIAL PROPERTIES, INC. : JURY TRIAL DEMANDED Additional Defendants : AFFIDAVIT OF SERVICE On this, the 3rd day of August, 2009 at ! : I a o'clock P -m., I, JESSICA SHULL, personally hand-delivered the Subpoena to Attend and Testify of which the attached is a true and correct copy, upon Kim LgopV% r xan,o3si&4v n+ iv 61", UreSSle.*- 34V.v?. SSICA SHULL Sworn to and affirmed before me nnthis 3 rd day ofU usF, 2001. OTARY PUBLIC QOMMONWE-ALTH eF'ENNSYLVA MA Notarial Sesi Deborah I. Brenneman, Notary Public Camp Hill 1110ro. Cumberland County MY Corn ma<sion farpir*$ June 18, 2010 Member, Pennsylvania Association of Nota FILHJ- OFT HE F 2009 A --4 PIN 12: 16 Cu#r ,i"+ REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire Attorney I.D. No. 67987 Email: twilliamsnuReagerAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: wmartin(a R erAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for John F. Walter Excavating, Inc. JOHN F. WALTER EXCAVATING, INC. Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Defendant V. : No.: 08-7118 C.T. CIVIL ACTION - LAW OLD GETTYSBURG ASSOCIATES, IV, L.P and SELECT CAPITAL COMMERCIAL PROPERTIES, INC. : JURY TRIAL DEMANDED Additional Defendants : CERTIFICATE OF SERVICE I hereby certify that on the date set forth below true and correct copies of the Affidavit of Service upon Bill Dressler and upon Barry W. Cassel was served on the following individual via United States First Class Mail, postage prepaid as follows: Jordan D. Cunningham, Esquire Cunningham & Chernicoff 2320 North Second Street PO Box 60457 Harrisburg, PA 17106-0457 Stanley B. Edelstein Jacoby Donner, PC 1700 Market Street, Suite3100 Philadelphia, PA 19103 Dated: August 4, 2009 C.^ ° --? 4ei a S hull Legal Assistant, Wayne S. Martin IF THE F" !ARY 2009 AUG -4 Pf? 12: 16 r -. R u.. FILED-CFF ')F TYr P°?'!'F v?JAF?Y REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire Attorney I.D. No. 67987 Email: twilliams@Rea„gerAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: wmartin ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for John F. Walter Excavating, Inc. 2010 JAN -8 Ph 0 12 iY JOHN F. WALTER EXCAVATING, INC. Plaintiff V. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Defendant V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No.: 08-7118 C.T. : CIVIL ACTION - LAW OLD GETTYSBURG ASSOCIATES, IV, L.P and SELECT CAPITAL COMMERCIAL PROPERTIES, INC. : JURY TRIAL DEMANDED Additional Defendants : PRAECIPE TO DISCONTINUE To the Prothonotary: Please mark the above action settled and discontinued with prejudice. Date: January 7, 2010 REAGER & ADLER P Thomas/0. Williams, Esquire Attorney I.D. No. 67987 Wayne S. Martin, Esquire Attorney I.D. No. 208078 2331 Market Street Camp Hill, PA 17011-4642 (717) 763-1383 Attorneys for Claimant REAGER & ADLER, P.C. By: Thomas O. Williams, Esquire Attorney I.D. No. 67987 Email: twilliamsa-Rea erAdlerPC.com By: Wayne S. Martin, Esquire Attorney I.D. No. 208078 Email: wmartin(a)Reaj?erAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for John F. Walter Excavating,_Inc. JOHN F. WALTER EXCAVATING, INC. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No.: 08-7118 C.T. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Defendant V. : CIVIL ACTION - LAW OLD GETTYSBURG ASSOCIATES, IV, L.P and SELECT CAPITAL COMMERCIAL PROPERTIES, INC. : JURY TRIAL DEMANDED Additional Defendants : CERTIFICATE OF SERVICE I hereby certify that on the date set forth below true and correct copies of the Praecipe to Discontinue was served on the following individuals via United States First Class Mail, postage prepaid as follows: Jordan D. Cunningham, Esquire Cunningham & Chernicoff 2320 North Second Street PO Box 60457 Harrisburg, PA 17106-0457 Dated: January 7, 2010 Stanley B. Edelstein Jacoby Donner, PC 1700 Market Street, Suite3100 Philadelphia, PA 19103