Loading...
HomeMy WebLinkAbout10-1592MARC A. SCARINGI and MELANIE WALZ SCARINGI, Plaintiff V. CROMLEIGH BROTHERS, INC. A Pennsylvania Corporation, Defendant CROMLEIGH BROTHERS, INC. A Pennsylvania Corporation, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. -/,g - M 1-b AND IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. No. MARC A. SCARINGI and MELANIE WALZ SCARINGI, a 0 Defendant -,. WAIVER OF MECHANIC'S LIENS f t _Pq r C' KNOW ALL BY THESE PRESENTS, that: BACKGROUND Marc A. Scaringi and Melanie Walz Scaringi, adult individuals, residing at 128 Hunters Ridge Drive, Harrisburg, Dauphin County, Pennsylvania, 17110 (hereinafter "Owners") and Cromleigh Brothers, Inc., a Pennsylvania Corporation, having an address at 606 N. Market Street Duncannon, Perry County, Pennsylvania 17020 (hereinafter "Contractor"), have entered into an Construction Contract dated March 6, 2010 relating to the construction by Cromleigh Brothers, Inc., of repairs and improvements to the below-described parcel of residential real estate owned by the Owners (hereinafter "Construction Contract"), as part of the consideration for which Construction Contract this Waiver of Liens is given: Property Description: 215 N. 24`x' Street Camp Hill, PA 17011 Camp Hill Boro, Cumberland County Tax Parcel ID #01-21-0271-083 ,Aei-A a3 6 5-:>? Page 1 of 1 Legal description: ALL that certain lot of ground situated in the Borough of Camp Hill, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the eastern line of Twenty-fourth Street (formerly Park Avenue) on the northern line of lands recently conveyed to Charles T. Bowman, said point being one hundred seventy-five (175) feet measured northwardly along Twenty-fourth Street from the northeast comer of Twenty-fourth Street and Logan Street as shown on the plan of lots hereinafter mentioned; thence in an easterly direction along the line of said lands of Charles T. Bowman and at right angles to Twenty-fourth Street one hundred and forty (140) feet to a fourteen (14) foot Alley; thence in a northerly direction along the western line of said alley fifty-five (55) feet to a point; thence in a westerly direction along a line at right angles to Twenty-fourth Street one hundred and forty (140) feet to Twenty-fourth Street; thence in a southerly direction along the eastern line of Twenty-fourth Street fifty-five (55) feet to the point or place of beginning. BEING improved by a two and one-half story frame dwelling house, known and numbered as 215 North 24t` Street, Camp Hill. BEING the northern five (5) feet of Lot No. 31, all of lots Nos. 32 and 33 and the southern ten (10) feet of Lot No. 34 as shown on the Plan of Lots of H.C. Zacharias, said Plan being recorded in the Recorder of Deeds Office in and for Cumberland County in Plan Book 1, Page 1. BEING the same premises conveyed to Marc A. Scaringi and Melanie W. Scaringi, husband and wife, by Deed from Robert Frederick VanVoorhees and Frank Stephen VanVoorhees, as Administrator C.T.A. of the Estate of Fred L. VanVoorhees, dated August 21, 2009, and recorded August 27, 2009 in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, as Instrument Number 200930130. AGREEMENT NOW, THEREFORE, Contractor, intending to be legally bound hereby, in consideration of the sum of One Dollar ($1.00) to Contractor in-hand paid, the receipt and sufficiency of which are hereby acknowledged, as well as for and in consideration of the entry by Owners into the Construction Contract between Owner and Contractor, which is incorporated herein by reference, made a part hereto and marked as Exhibit A, does hereby, for Contractor and any and all subcontractors, material suppliers and parties acting for, through or under Contractor, them or any of them, or anyone, covenant and agree with Owners that no mechanics' liens or claims shall be filed or maintained by Contractor, them or any of them, or any one, against the above- described real estate, or the buildings or other improvements erected or to be erected thereon, or. any of them, or the estate (including a leasehold estate), interest or title thereto of Owners, for or on account of any work done or materials furnished under the Construction Contract or under any supplemental contract, verbal or written, or contract for extra work relating to the construction and other improvements, or any of them, or otherwise; and Contractor, for Contractor and any and all subcontractors, material suppliers and parties acting through or under Contractor, them or any of them, hereby expressly waives and relinquishes the right to have, file Page 2 of a or maintain any mechanic's liens or claims against said real estate or buildings or other improvements or any of them. Contractor hereby covenants, promises and agrees that all subcontractors, material suppliers, and laborers on the work shall look to and hold Contractor personally liable for all subcontracts, materials furnished and work and labor done, so that there shall not be any legal or lawful claim of any kind whatever against Owners, or any other person with an estate (including a leasehold estate) in the above-described property, for any work done or labor or materials furnished under the Construction Contract or otherwise. Contractor further agrees to indemnify, defend, and hold harmless Owners against loss that Owners may suffer by reason of a mechanic's lien filed against Owners by any subcontractor, supplier, and/or laborer on the work. Contractor shall, at its own expense, satisfy, remove, or discharge such mechanic's lien by bonding, payment, or otherwise within thirty (30) days after notice to Contractor of the filing or assertion thereof. If Contractor fails so to do, in addition to all the other rights and remedies available to Owners, Owners may satisfy, remove, or discharge such mechanic's lien and, at Owners' election, Owners may apply the cost thereof, including reasonable attorneys' fees, against the amounts payable by Owners to Contractor under the Construction Contract or any supplemental contract, verbal or written, or Contractor shall pay the same to Owners upon demand together with interest thereon from the date paid by Owners to the date of reimbursement by Contractor (including any post judgment period) at two percent (2%) above the prime rate published in the Wall Street Journal, adjusted as of the date of any such change to such rate. This agreement waiving the right of lien shall be an independent covenant and shall operate and be effective as well with respect to work done and materials furnished under any supplemental contract for extra work in the construction and completion of the construction and/or other improvements as to any work and labor done and materials furnished under the Construction Contract. Contractor hereby represents and warrants that prior to the date hereof no work has been done and no materials have been furnished with regard to the construction which is the subject of the Construction Contract or with regard to any supplemental contract, verbal or written, or contract for extra work in or about the construction and completion of the addition and/or other improvements on the above-described property. In order to give Owners full power and authority to protect itself and themselves, the above-described property, the renovations and/or other improvements to be constructed/altered/repaired thereon, and the curtilages appurtenant thereto, against any and all liens or claims filed by the Contractor or anyone acting under or through it in violation of the foregoing covenant by Contractor, the Contractor hereby irrevocably authorizes and empowers any attorney of any Court of Common Pleas of the Commonwealth of Pennsylvania, to appear as attorney for it, them, or any of them, in any such Court, and in its or their name or names, (a) to the extent permitted by law, to mark satisfied of record at the cost and expense of Contractor or of any subcontractor, subsubcontractor, laborer or material supplier, any and all claims or liens filed in violation of the foregoing waiver and covenant, or (b) to cause to be filed and served in connection with such claims or liens (in the name of Contractor or any subcontractor, Page 3 of 3 subsubcontractor, laborer or material supplier, or anyone else acting under or through it) any pleading or instrument, or any amendment to any pleading or instrument previously filed by it or them, to incorporate therein, as part of the record the waiver contained in this instrument, and for such act or acts this instrument shall be good and sufficient warrant and authority, and a reference to the court, term and number in which and where this Waiver of Liens shall have been filed shall be a sufficient exhibit of the authority herein contained to warrant such action, and the Contractor for itself and for them does hereby remise, release and quit-claim all rights and all manner of errors, defects and imperfections whatsoever in entering such satisfaction or in filing such pleading, instrument or amendment, or in any way concerning them. This agreement and Waiver of Liens is made and intended to be filed with the Prothonotary of the Court of Common Pleas of the County of Cumberland, Commonwealth of Pennsylvania, or other proper place in which the above-described lands are located, within ten days after the date hereof in accordance with the requirements of law in such case provided. If any provision of this agreement and Waiver of Liens is, by operation of law or otherwise, deemed unenforceable, that which remains is capable of separate enforcement without regard to the unenforceable provisions; in which case those provisions which are enforceable shall be binding on all the parties to this agreement. IN WITLESS WHEREOF, Contractor has signed and sealed these presents this day of M Pr C i-1 20/D Attest: r' CONTRACTOR: CROMLEIGH BROTHERS, INC. BY: RON CROMLEIGH, PRESIDENT [THIS PART LEFT BLANK INTENTIONALLY] Page 4 of ' CONSTRUCTION CONTRACT This agreement ("Construction Contract") is made this 6 h day of March, 2010, by and between CROMLEIGH BROTHERS, INC., of 606 N. Market Street, Duncannon, PA 17020 ("Contractor") and MARC A. SCARINGI and MELANIE WALZ SCARINGI, of 128 Hunters Ridge Drive, Harrisburg, PA, 17110, ("Owners"). A. Scope of Construction. Contractor shall construct, finish and complete the improvement or renovation work ("Work") to a residential building located at 215 N. 24a' Street, Camp Hill, PA 17011 ("Project Site") as described in the estimate prepared by Contractor and labeled "Scaringi Repair Project #46" ("Scope of Work"), as amended and incorporated herein by reference and marked as Attachment A, and in strict accordance with the plans and specifications ("Plans") as amended and incorporated herein by reference and marked as Attachment B, and in compliance with all applicable laws, ordinances, building codes and regulations ("Law") as amended and incorporated herein by reference (the Scope of Work, Plans and Law are referred to herein collectively as the "Contract Documents"). The Contractor will furnish all labor and materials necessary in the construction, finishing and completion thereof; the material to be of such a quality as provided in the Contract Documents. Contractor shall not make any substitutions of items specified on the Contract Documents absent the prior written consent of Owners. B. Pricing and Deposit. The work is to be performed and completed on a fixed price basis. The total price of the Work, including, without limitation, Contractor's profit and overhead, is $$19,464.15(the "Total Price"). The price and a general description itemization of each category of work required to complete the Work is set forth in the Contract Documents. Except for increases to the Total Price as provided in Paragraph C, below, the Total Price shall not be subject to increase, and Contractor agrees that the Total Price constitutes full and fair consideration for completion of the Work. If the parties agree to changes which are of a lesser cost, credit will be yielded back to Owners. Owners shall pay the fees for any permits required by the municipality so that Contractor is permitted to perform and complete the Work. C. Payment to Contractor. The Owners agree to pay Contractor the Total Price for the Work to be performed under the Contract Documents according to the Schedule of Payment set forth below: 1 • Schedule of Payment Payment When Due Amount Down Payment Due upon execution of this Construction Contract. $6,488.05 Progress Payment #1 Due upon Substantial Completion of the Work as described in paragraph C3. $6,488.05 Page 1 of 8 Final Payment Due upon Final Completion of the Work as $6,488.05 described in paragraph C5. Total Price: $19,464.15 2. Contractor will submit to Owners written applications for payment certifying each stage of the Work has been completed according to the Contract Documents and Schedule of Payment as amended. 3. Substantial Completion occurs when the Work is sufficiently complete as described on the Contract Documents and Schedule of Payment as amended so that Owners can move their furniture and belongings into the Project Site for use and occupancy and upon issuance of any permits from the local municipality that may be necessary for final use and occupancy of the subject dwelling ("Substantial Completion"). 4. Promptly following Substantial Completion and in any event within 10 days thereafter, Owners shall inspect the Project Site with the Contractor at a mutually convenient time and jointly prepare a "punch list" initialed by the parties on which shall be listed all items of Work which are defective, incomplete or nonconforming to the Contract Documents (the "punch list items"). Contractor shall complete the construction, repair or replacement of all punch list items, to the satisfaction of the Owners, promptly following completion of the punch list and in any event within 10 days thereafter. 5. Final Completion occurs upon Substantial Completion and completion of all punch list items as described in paragraph C4 ("Final Completion"). 6. Payment shall be made on all properly completed and certified applications for payment within 5 business days of the date such application is received by Owners. Each application for payment must be accompanied by the attached release and waiver of mechanics' liens duly executed by Contractor and all subcontractors ("Release") as amended and incorporated herein by reference and marked as Attachment C, as a condition to Owners' obligation to make payment. 7. The Total Price may be adjusted only by written change order executed by both Contractor and Owners. D. Contingencies. Contractor agrees to diligently pursue all required approvals and permits for the Work without additional engineering controls, surveys, plans, designs or similar changes. In the event a permit for the Work, without additional engineering controls, surveys, plans, designs or similar changes, is not obtained by Contractor, Owners may terminate this contract by written notice to Contractor. Should Owners elect to terminate this contract pursuant to the foregoing provision, Contractor shall return all monies paid to Contractor by Owners and thereafter neither Page 2 of 8 party shall have any obligation to the other. E. Contractor's Indemnity and Insurance. 1. Contractor hereby agrees to be responsible to Owners for, to hold Owners harmless from and to indemnify Owners from and against all liability, actions, damages, claims, demands, judgments, losses, costs and expenses (including, but not limited to, attorneys' fees) arising or alleged to have arisen out of or resulting from the injuries sustained by any person or persons, or loss or damage to any property, arising out of or resulting, in whole or in part, from any act or - omission on the part of the Contractor or any of the subcontractors, including owners, officers, agents, employees and invitees of Contractor and subcontractors. In no event shall Contractor's obligations to indemnify hereunder be limited by or to the extent of any insurance coverage obtained by Contractor or the proceeds thereof. 2. Before commencing the Work, Contractor shall procure and maintain, or cause to be procured and maintained, throughout the term of this Construction Contract and for at least one (1) year following Final Completion of the Work, at least the following policies of insurance (and shall be responsible for the administration of all claims thereunder): (i) Worker's Compensation (statutory limits) as required by applicable Laws covering each and every worker employed by Contractor in connection with the Work; (ii) Commercial General Liability, written on an occurrence-based form with policy limits not being less than a Combined Single Limit for Bodily Injury, Property Damage, and Personal Injury Liability of $500,000 per occurrence and $1,000,000 aggregate. 3. All policies of insurance required under this Construction Contract shall do the following: (i) name Owners as additional insureds (except the worker's compensation policy); (ii) provide that the same may not be canceled or materially changed without at least thirty (30) days' prior written notice to Owners; (iii) provide that the coverage provided thereunder is primary insurance and shall not be adversely affected or diminished by reason of any other insurance coverage maintained by Owners or any other additional insured; and (iv) provide that the act or omissions of any named or additional insured will not give rise to a right on the part of the insurer to refuse or diminish the payment of losses to or for the benefit of any other named or additional insured or otherwise result in the avoidance of the insurer's liability. Before commencing the Work, Contractor shall deliver to Owners certificate(s) evidencing said insurance. 4. Contractor shall require all subcontractors to provide the types of coverages referenced in Section E as well as any other coverages which Contractor may consider necessary, all substantially in the form required under this Construction Contract. 5. Contractor shall report to Owners and the insurance carriers all claims and incidents giving rise to claims under all insurance policies maintained by Contractor and subcontractors pursuant to this Section E immediately after Contractor obtains knowledge thereof, and Contractor or its insurer shall coordinate and administer the settlement of all such claims. All insurance policies required of Contractor and its subcontractors by Section E shall contain a provision requiring the insurer to waive its right of subrogation against Owners. Page 3 of 8 6. With respect to any insurance claims covered by the insurance policies maintained by Contractor pursuant to the provisions of this Section E, Contractor's insurance shall be primary, notwithstanding any insurance coverage maintained by Owners. F. Scheduling. 1. Contractor shall commence the Work immediately upon execution of this Construction Contract. The Work is to be continuous and not performed in an intermittent manner. 2. Contractor is to work exclusively on this project and shall work on no other projects during the period of time covered by this Construction Contract. (a) Contractor is required to obtain Substantial Completion of the Work on or before April 15, 2010 ("Completion Date") and is excused from such performance only by delay caused in whole by inclement weather or an act of God. (b) Except for delay caused by the conditions stated in paragraph (a) hereof, Contractor shall be liable to Owners for any actual damages incurred by Owners as a result of Contractor's delay in performing in accordance with the dates stated in paragraph (a). Actual damages shall include, but not be limited to, rent, storage fees and hotel fees incurred by Owners during the period of delay and any attorneys' fees and other costs incurred by Owners in collecting from Contractor the damages to which Owners are entitled under this paragraph. G. Coordination and Supervision. Contractor shall be responsible for coordinating and supervising all Work including Work performed by subcontractors. Contractor shall also be responsible to coordinate the delivery of construction materials to the Project Site in a timely manner. H. Subcontracts. 1. The term "subcontractor" means a person or organization having a direct or indirect contract with Contractor to perform or supply any labor, services, materials or equipment in connection with the performance of the Work and includes subcontractors of subcontractors. 2. Nothing contained in this contract shall create any relationship of contract or agency between Owners and any subcontractor. Contractor agrees that Owners shall have no obligation whatsoever to supervise or deal with any subcontractor or its agents or employees or to pay (or to see to the payment of) any subcontractor or its employees. Owners agree until completion or Contractor's breach under this Construction Contract to deal with subcontractors only through Contractor and to have no direct dealings with subcontractors unless (a) Contractor shall otherwise consent in writing in a specific instance, or (b) the respective subcontract has been assigned to Owners. Contractor agrees not to make Owners parties to any dispute between Contractor and any subcontractor. Page 4 of 8 3. Contractor shall contract with all subcontractors solely in its own name and behalf and not in the names or on behalf of Owners. From time to time, upon Owners' request, Contractor agrees to give to Owners a list of all subcontractors then hired by Contractor, together with correct and complete copies of their respective subcontracts. 4. The engagement of any subcontractor shall not excuse Contractor from complying in all respects with this Construction Contract. Contractor shall have full responsibility for every portion of the Work furnished by any subcontractor and for every act and omission (whether willful, negligent or otherwise) of Contractor, Contractor's employees, all subcontractors and all employees of subcontractors. All acts and omissions of subcontractors and their employees shall be deemed those of Contractor for the purposes of this Construction Contract. I. Quality Control. Contractor shall be responsible for assuring that the Work is performed in a good and workmanlike manner and in accordance with the standards of professional care typically expected of a qualified and experienced general contractor. All Work shall be performed according to the satisfaction of the Owners. J. Site Safety. Contractor shall take all reasonable precautions to prevent injury, damages, or loss to persons or property during the Work. K. Financial Administration. 1. Contractor shall be responsible for: a. Reviewing all invoices received from material suppliers, subcontractors, and equipment rental agencies; b. Paying material suppliers, subcontractors, and equipment rental agencies promptly. L. Waiver of Mechanics'Lien. Contractor shall execute and deliver to Owners a Waiver of Mechanics'Lien simultaneously with execution of this Construction Contract. The Waiver of Mechanics'Lien, which will be recorded by Owners, is attached hereto as Attachment D. M. Warranty to Owners. 1. Contractor warrants to Owners that, upon Final Completion, the Work: (i) shall conform to all Laws as of the date the Work is performed and shall conform to the Contract Documents; Page 5 of 8 (ii) shall be free from defects or deficiencies in equipment, materials or workmanship, latent or otherwise; (iii) shall incorporate only new materials and equipment; and (iv) shall be free of Liens. 2. Contractor shall assign and deliver to Owners at Final Completion all equipment warranties and all warranties received from subcontractors. N. Termination. 1. Termination. If Contractor is adjudged a bankrupt, or if it makes a general assignment for the benefit of its creditors, or if a receiver is appointed on account of its insolvency, or if it fails to timely and fully perform or otherwise breaches any term, condition or obligation under this Construction Contract, then, Owners shall have the right in their sole discretion to terminate this Construction Contract, take control of the Work and replace Contractor with a new contractor selected by Owners in their sole discretion, without affording Contractor an opportunity to cure. Owners' aforementioned right to terminate, take control and replace the Contractor is not exclusive of any other rights or remedies available to Contractor under any other section or paragraph of this Construction Contract or at law or in equity. Upon any termination of this contract or Contractor's employment hereunder, Owners shall reimburse Contractor for all material and labor provided or performed prior to the date of such termination, in accordance with and subject to the payment terms contained in this Construction Contract, less any costs, legal fees or other damages incurred by Owners as a result of Contractor's default and such termination. 2. Responsibilities of Contractor upon Termination. Upon any termination of this Construction Contract by Owners, Contractor shall: (a) discontinue performance of the Work and the other services to be performed by Contractor hereunder on the date and to the extent specified in Owners' termination notice; (b) make no further commitments with respect to the Work, except as may be necessary to assure the safety of the public; (c) deliver to Owners all drawings, surveys, drawings and specifications and other documents, materials and information produced or acquired by Contractor in connection with the Work; (d) as directed by Owners, cancel or transfer to Owners all orders, commitments and agreements relating to the Work; (e) transfer to Owners, in the manner, at the time and to the extent directed by Owners, the Work and all supplies, materials, equipment and other property produced as part of or acquired by Contractor for or in performance of the Work; Page 6 of 8 (f) as directed by Owners, assign to Owners those subcontracts designated by Owners; and (g) take such other reasonable action as Owners shall direct for the protection and preservation of the Work and Owners' interest therein. 0. Miscellaneous. 1. This contract shall be governed by the laws of the Commonwealth of Pennsylvania 2. Neither Owners nor Contractor shall assign this Construction Contract or any interest herein without the prior written consent of the other. 3. The terms, conditions, rights and obligations contained in this Construction Contract, and all other attachments thereto, shall survive "Final Completion," and this Construction Contract shall not be deemed to be merged into any other documents unless explicitly stated and mutually agreed to by the parties. 4. This Construction Contract represents the entire agreement between Owners and Contractor and supersedes all prior discussions, representations and agreements between the parties hereto. This Construction Contract may not be revised or amended except by a written instrument signed by the parties hereto. 5. Time is of the essence. 6. All terms and conditions set forth herein are material terms and conditions. The failure to satisfy any term or condition shall be considered a material breach of this Construction Contract. 7. The failure to enforce a term or condition herein does not constitute a waiver of said term or condition. 8. The parties intend that this within Construction Contract be legally binding upon themselves, their heirs, successors and assigns. [This part left blank intentionally] Page 7 of 8 IN WITNESSETH WHEREOF, and intending to be legally bound hereby, the parties hereby set their hands and seals the day and year first written above WITNESS: WITNESS: ME ANIE WALZ SCARINGI CONTRACTOR: CROMLEIGH BROTHERS, INC. B : RON CROMLEIG , PRESIDENT Page 8 of 8