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HomeMy WebLinkAbout12-1368FIVE WAY FARM, LLC, Owner-Plaintiff V. KING CONSTRUCTION COMPANY, LLC, Contractor-Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MECHANICS' LIEN NO. 101 _ /3(08 STIPULATION AND WAIVER OF LIENS r? [JF1 .. r- ",('J "_. CD ~ L D LW' Pia C. :> r :rte .A7 C , .:y The undersigned contractor, materialman or other entity or person furnishing services, labor or materials, known as, King Construction Company, LLC, a Pennsylvania corporation (the "Contractor") has entered into a written contract dated February? , 2012 ("Contract") with Five Way Farm, LLC ("Owner"), the Owner of certain real property located in Cumberland County, Pennsylvania as more fully identified on Schedule "A" hereto, for the construction of certain buildings and improvements ("Improvements"). Under the Contract, Contractor is required to provide a payment bond guaranteeing payment of all amounts due any subcontractor or supplier of Contractor as those terms are defined in 49 P. S. §1201(5)(2006) (collectively "Subcontractor"). The Contractor has, in fact, provided the required payment bond, a copy of which is attached hereto as Schedule "B". As permitted by 49 P.S. §§ 1401(b)(2) and 1402(a), and as required by the Contract, Contractor hereby waives all rights of any and al l Subcontractors to file a mechanics' lien or claim, or notice of intention to file any mechanics lien or claim, as a result of any work performed, or any labor, skill, superintendence, and/or materials provided for the Improvements. All Subcontractors are required to look solely to Contractor and its payment bond for payments due on account of work performed, or labor, skill, superintendence, and/or materials provided for the Improvements, as originally defined or as subsequently supplemented or otherwise modified. This Stipulation and Waiver of Liens is an independent covenant which is governed by and is to be construed in accordance with the laws of the Commonwealth of Pennsylvania. The undersigned, for the Subcontractors and anyone else acting under or through it, hereby irrevocably authorizes and empowers any attorney of any court of competent jurisdiction of the Commonwealth of Pennsylvania, or elsewhere, to appear as attorney for it, them or any of them, in any such court and, in its or their name or names, mark satisfied of record at the cost and expense of the undersigned, any and all claims, liens, any pleading or instrument, or any amendment to any pleading or instrument previously filed by it or them, to incorporate therein as part of the record this waiver and for such act or acts this waiver shall be good and sufficient warrant and authority, and the undersigned for them, does hereby remise, release and quit-claim all rights and all manner of errors, in filing such pleading, instrument or amendment, or in any way concerning them. 4aq.oo pa A7w ic? 880 C 'f 0 Q71-797 Owner shall have the absolute right in its name or in the name of the undersigned or any other entity or person who shall have filed a claim or lien, to cause any and all such claims or liens to be discharged by any other instrument, pleading or proceeding permitted at law or in equity. The undersigned hereby avers, represents and warrants that no work has commenced on the Real Estate and no labor or materials have been delivered to the Real Estate or furnished for the improvement of the Real Estate by the undersigned or by any subcontractor, materialman, laborer, or other person or entity, and that no authorization has yet been given by the Owner to the undersigned to commence work or purchase materials in connection with the Real Estate. This Stipulation is made and intended to be filed with the Cumberland County Prothonotary in accordance with the requirements of the Mechanics' Lien Law of 1963 of the Commonwealth of Pennsylvania, as amended. IN WITNESS WHEREOF, the undersigned has caused this instrument to be duly executed as of the A day of 1--,k , 2012. ATTEST: CONTRACTOR: KING CONSTRUCTION COMPANY, LLC BY A /-),, N e: "'-- Title: 2 SCHEDULE A (Attach Legal Description) NARRATIVE DESCRIPTION THE MIDDLE FARM Surveyors L.andscape Architects Envimnmental Consultants ALL that certain piece, parcel or lot of land situate on the east side of Heisey Road (T-560) in Monroe Township, Cumberland County, Pennsylvania, and being more fully bound and described as follows, to wit: BEGINNING at a point in the centerline of Heisey Road at the southwest corner of the premises about to be described; said point being S 21°17'33" E a distance along the centerline of Heisey Road of 476.02 feet from the centerline intersection with Brandt Road (T-557); thence in, along and through Heisey Road N 21°17'33" W a distance of 3024.13 feet to a point, thence continuing in, along and through same N 16°52'37" E a distance of 961.76 feet to a point; thence leaving Heisey Road along other lands now or formerly of Five-Way Partners, L.P. and also along lands now or formerly of Charlotte R. Bucher S 68°50'23" E (passing through a concrete monument at a distance of 32.17 feet) for a total distance of 2551.22 feet to an iron pin; thence continuing along said lands of Bucher and also along lands now or formerly of Brian E. Toevs and lands now or formerly of James L. Hertzler, respectively S 05°07'33" E a distance of 2172.16 feet to a fence post; thence continuing along said lands of Hertzler and also along lands now or formerly of John F. Stamy, III S 69°33'57" W (passing through concrete monument at a distance of 1843.95 feet) for a total distance of 1872.15 feet to a point in the centerline of Heisey Road, the point of BEGINNING. CONTAINING 159.080 acres. SUBJECT to that portion of the above described premises being offered for dedication to Monroe Township for road right-of-way and being more fully bound and described as follows, to wit: BEGINNING at a point in the centerline of Heisey Road at the southwest corner of the premises about to be described; said point being S 21°17'33" E a distance along the centerline of Heisey Road of 476.02 feet from the centerline intersection with Brandt Road (T-557); thence in, along and through Heisey Road N 21°17'33" W a distance of 3024.13 feet to a point, thence continuing in, along and through same N 16°52'37" E a distance of 961.76 feet to a point; thence leaving Heisey Road along other lands now or formerly of Five-Way Partners, L.P. S 68°50'23" E a distance of 32.17 feet to a concrete monument; thence extending through the above described premises the following six (6) courses: 1. S 17°03'59" W a distance of 875.69 feet to a concrete monument; 2. By a line curving to the left having a radius of 250.00 feet, an arc length of 169.01 feet, and having a chord bearing of S 02°18'04" E a distance of 165.81 feet to a concrete monument; 3. S 21°40'07" E a distance of 1358.25 feet to a concrete monument; 4. S 21°31'20" E a distance of 990.00 feet to a concrete monument; 5. S 21°05'16" E a distance of 495.00 feet to a concrete monument; 6. By a line curving to the right having a radius of 780.00 feet, an arc length of 72.41 feet, and having a chord bearing of S 18°25'41" E a distance of 72.39 feet to a concrete monument on the northern line of lands now or formerly John F. Stamy, III; 5031 Richard Ln, Ste 111, Mechanicsburg, PA 17055 • Phone: (717) 697-3551 Engineers E-mail: rettew@rettew.com • Web site: rettew.com Manners Thence along said Stamy, III line S 69°33'57" W a distance of 28.20 feet to a point in the centerline of Heisey Road, the point of BEGINNING. CONTAINING 2.664 acres. HIT TE'll' SCHEDULE B (Attach Payment Bond) PAYMENT BOND Bond Number: BDA 703914 AMCO Insurance Company Nationwide Mutual Insurance Company Allied Property & Casualty Insurance Company 1100 Locust St., Dept 2006 Des Moines, IA 50391-2006 (866) 387-0457 CONTRACTOR: King Construction. Cnrrpny, 525 I bll%i±r Paid NEW Fblland, PA 17557 OWNER: Five try Farm, LLC 345 Heisey Road Mbch9 icsljg, PA 17055 SURETY: LLC AMCO Insurance Company 1100 Locust St., Dept. 2006 Des Moines, IA 50391-2006 CONSTRUCTION CONTRACT Date: Amount: jtu Million Ta.ee FxdL.ed F01-ty-six Tmusand (he > fired Sixty-M all 00/100 ($2,346,162.00) D 1 cri lion: Design and constnlrtian of (1) a Ten Stall Center Aisle Barn with Frwisions for a fub-ire x360 apartment on second le. el (provide a reverse gable to attach a futt-ire V x72' x12'wirg) attad-ed to existing barn; (2) a 90'x200'x17' indoor riding arena with 25'x34'xl2' corn-tor; (3) a 62' dianater eight- sided hDt walker for six (6) horses; and (4) t?,D (2) 16'x46'xll' Rlm-In Sheds -nJ site pre ration BOND Date: Fdxuary 22, 2012 Amount: 7?10 Mi_llion Three Urdred Forty-six Uuisand One Uxrk-ed Sixty-to ai-d 00/100 ($2,3+6,162.00) Modifications to this Bond: M None ? See Section 16 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) King Const niction Gxpany, LLC alto! AMCO Insurance Company ???..••••.,?? - I :SEALS ? Signature: --- - \?? :g,,m?:•?AV Signature: .,`44? Name Name And Title: and Title: S ie L. BEnkert Attorney-in-Fact (Any additional signatures appear on the last page of this Performance Bond) (FOR INFORMATION ONLY- Name, address and telephone) AGENT or BROKER: OWNERS REPRESENTATIVE: Moray Fdsk M>a Wanmt arrl h-si? 39 North Dike Street Iamaster, PA 17602 717-397-9600 (Architect, Engineer or other parry.) This document conforms to American Institute of Architects Document A312, 2010 edition § 1 The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference, subject to the following terms. § 2 If the Contractor promptly makes payment of all sums due to Claimants, and defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity seeking payment for labor, materials or equipment furnished for use in the performance of the Construction Contract, then the Surety and the Contractor shall have no obligation under this Bond. § 3 If there is no Owner Default under the Construction Contract, the Surety's obligation to the Owner under this Bond shall arise after the Owner has promptly notified the Contractor and the Surety (at the address described in Section 13) of claims, demands, liens or suits against the Owner or the Owner's property by any person or entity seeking payment for labor, materials or equipment furnished for use in the performance of the Construction Contract and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety. § 4 When the Owner has satisfied the conditions in Section 3, the Surety shall promptly and at the Surety's expense defend, indemnify and hold harmless the Owner against a duly tendered claim, demand, lien, or suit. § 5 The Surety's obligations to a Claimant under this Bond shall arise after the following: § 5.1 Claimants, who do not have a direct contract with the Contractor, .1 have furnished a written notice of non-payment to the Contractor, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were, or equipment was, furnished or supplied or for whom the labor was done or performed, within ninety (90) days after having last performed labor or last furnished materials or equipment included in the Claim; and .2 have sent a Claim to the Surety (at the address described in Section 13) § 5.2 Claimants, who are employed by or have a direct contract with the Contractor, have sent a Claim to the Surety (at the address described in Section 13). § 6 If a notice of non-payment required by Section 5. 1.1 is given by the Owner to the Contractor, that is sufficient to satisfy a Claimant's obligation to furnish a written notice of non-payment under Section 5.1.1. § 7 When a Claimant has satisfied the conditions of Sections 5.1 or 5.2, whichever is applicable, the Surety shall promptly and at the Surety's expense take the following actions: § 7.1 Send an answer to the Claimant, with a copy to the Owner, within sixty (60) days after receipt of the Claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed; and § 7.2 Pay or arrange for payment of any undisputed amounts. § 7.3 The Surety's failure to discharge its obligations under Section 7.1 or Section 7.2 shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim, except as to undisputed amounts for which the Surety and Claimant have reached agreement. If, however, the Surety fails to discharge its obligations under Section 7.1 or Section 7.2, the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. § 8 The Surety's total obligation shall not exceed the amount of this Bond, plus the amount of reasonable attorney's fees provided under Section 7.3, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. § 9 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, under any construction performance bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of e Construction Contract are dedicated to satisfy obligations of the Contractor and Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. This document conforms to American Institute of Architects Document A312, 2010 edition § 10 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for the payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligation to make payments to, or give notice on behalf of, Claimants or otherwise have any obligations to Claimants under this Bond. § 11 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. § 12 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date (1) on which the Claimant sent a Claim to the Surety pursuant to Section 5.1.2 or 5.2, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction 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. § 13 Notice and Claims to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. Actual receipt of notice or Claims, however accomplished, shall be sufficient compliance a ii?c as of the uatc ieceivcd. § 14 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 conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. § 15 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor and Owner shall promptly furnish a copy of this bond or shall permit a copy to be made. § 16 Definitions § 16.1 Claim. A written statement by the Claimant including at a minimum: .1 the name of the Claimant; .2 the name of the person for whom the labor was done, or materials or equipment furnished; .3 a copy of the agreement or purchase order pursuant to which labor, materials or equipment was furnished for use in the performance of the Construction Contract; .4 a brief description of the labor, materials or equipment furnished; .5 the date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; .6 the total amount earned by the Claimant for labor, materials or equipment furnished as of the date of the Claim; .7 the total amount of previous payments received by the Claimant:, and .8 the total amount due and unpaid to the Claimant for labor, materials or equipment furnished as of the date of the Claim. § 16.2 Claimant. An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equipment for use in the performance of the Construction Contract. The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located. The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment' that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. § 16.3 Construction Contract. The agreement between Owner and Contractor identified on the cover page, including all Contract Documents and all changes made to the agreement and the Contract Documents. This document conforms to American Institute of Architects Document A312, 2010 edition § 16.4 Owner Default. Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. § 16.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 17 If this Bond is issued for an agreement between a Contractor and subcontractor, the term Contractor in this Bond shall be deemed to be a Subcontractor and the term Owner shall be deemed to be Contractor. § 18 Modifications to this bond are as follows: (Space is provided helow for additional signatures of addedparties, other than those appearing on cover page) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Name And Title: Address Signature: Name and Title: Address , Attorney-in-Fact This document conforms to American Institute of Architects Document A312, 2010 edition KNOW ALL MEN BY THESE PRESENTS THAT Nationwide Mutual Insurance Company, an Ohio corporation Farmland Mutual Insurance Company, an Iowa corporation Nationwide Agribusiness Insurance Company, an Iowa corporation Power of Attorney AMCO Insurance Company, an Iowa corporation Allied Property and Casualty Insurance Company, an Iowa corporation Depositors Insurance Company, an Iowa corporation hereinafter referred to severally as the "Company' and collectively as the "Companies," each does hereby make. constitute and agoeint DEBRA L. RINL'ER ANTHONY M. MACINANTI LYDIA A. MANTLE JOSEPH A. Ko,rui,A KIMBERLY A. HORNING BREN'I' D. HEADLEY KITTY A. CASSELL. STEPIIANIE L. BAN'KERT IIF.IDI R. BRU'I'KO JENNIFER A. YOUNG LANCASTER PA each in their individual capacity, its true and lawful attorney-in-fact, with full power and authorityto sign, seal, and execute on its behalf any and all bonds and undertakings, and other obligatory instruments of similar nature, in penalties not exceeding the sum of ONE MILLION FIVE 11UNDRED THOUSAND AND NO/100 DOLLARS S 1,-s00 000.00 and to bind the Company thereby, as fully and to the same extent as if such instruments were signed by the duly authorized officers of the Company; and all acts of said Attorney pursuant to the authority given are hereby ratified and confirmed. This power of attorney is made and executed pursuant to and by authority of the following resolution duly adopted by the board of directors of the Company: "RESOLVED, that the president, or any vice president be, and each hereby is, authorized and empowered to appoint attorneys-in-fact of the Company, and to authorize them to execute and deliver on behalf of the Company any and all bonds, forms, applications, memorandums, undertakings, recognizances, transfers, contracts of indemnity, policies, contracts guaranteeing the fidelity of persons holding positions of publicor private trust, and other writings obligatory in naturethat the business of the Company may require; and to modify or revoke, with or without cause, any such appointment or authority; provided, however, that the authority granted hereby shall in no way limit the authority of other duly authorized agents to sign and countersign any of said documents on behalf of the Company." "RESOLVED FURTHER, that such attorneys-in-fact shall have full power and authority to execute and deliver any and all such documents and to bind the Company subject to the terms and limitations of the power of attorney issued to them, and to affix the seal of the C ompanythereto; provided. however, that said seal shall not be necessary for the validity of any such documents." This power of attorney is signed and sealed under and by the following bylaws duly adopted by the board of directors of the Company, Execution of Instruments. Any vice president, any assistant secretary or any assistant treasurer shall have the power and authority to sign or attest all approved documents, instruments, contracts, or other papers in connection with the operation of the business of ?he company in addition to the chairman of the board,the chief executive officer, president, treasurer or secretary; provided, however, the signature of any of them may be printed, engraved, or stamped on any approved document, contract, instrument. or other papers of the Company. N WITNESS WHEREOF, the Company has caused this instrument to be sealed and duly attested by the signature of its officer the 1" day of Ate, 2009. Gary A. Douglas, President and Chief Operating Officer of Nationwide Agribusiness Insurance Com :. / ;SEAL : / pany and Farmland Mutual Insurance Company; and Vice President of Nationwide Mutual Insurance Company AMCO , Insurance Company, Allied Property and Casualty Insurance Company. and Depositors Insurance ?cTrr'+? `? ? it Company as,1 ACKNOWLEDGMENT -AZ STATE OF IOWA, COUNTY OF POLK: ss t? ?CURPpAAtE i K ?1 L SEALrs? On this 1 1"' day of Au dust , 2009, before me came the above-named officer for the Companies aforesaid, to me personally known to be the officer described in and who executed the preceding instrument, and he acknowledged the execution of the same, and being by me duly sworn, deposes and says, that he is the officer of the Companies aforesaid, that the seals affixed hereto are the corporate seals of said Companies, and the said corporate seals and his signature were duly affixed and subscribed to said instrument by the authority and direction of said Companies. SEAL / •10,* SANDYALITL agppit Cartu+?aalonFArts?bsr7627E6 rtota blic L7 Notary Public t?r?,?'11'`r'2+'2°77 My Commission Expires CERTIFICATE March 24, 2011 Kathy R. Richards, Assistant Secretary of the Companies, do herebycertify that the foregoing is a full, true and correct copy of the original power of attorney issued by ie Company; that the resolution included therein is a true and correct transcript from the minutes of the meetings of the boards of directors and the same has not been evoked or amended in any manner; that said Gary A. Douglas was on the date of the execution of the foregoing power of attorney the duly elected officer of the ;ompanies, and the corporate seals and his signature as officer were duly affixed and subscribed to the said i•istrument by the autnorityof said board of directors; andthe >regoing power of attorney is still in full force and effect. J WITNESS WHEREOF, I have hereunto subscribed my name as Assistant Secretary, and affixed the corporate seals of said Companies this 22r-d day f-Eetn 194 20 12 . Assistant Secretary Phis Power of Attorney Expires ____ 01118/13 24613 DJ 1 (08/09)