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HomeMy WebLinkAbout12-6444BUMBLE BEE HOLLOW, LLC. Owner WILLIAM E WITTER Contractor ~-; f' _~ ~,;,_. ~i~ r _ i ~ 1. tti ~ ,,,t., . Lr,t~l:~ ~~ ~~ ~ ~ - ~~~~ M ~-D WAIVER OF LIEN WHEREAS, this Waiver of Liens, dated October 10, 2012, is between BUMBLE BEE HOLLOW LLC, a limited liability company, having an address of 6160G Springford Drive, Harrisburg PA 17111 and ("Owner"i and WILLIAM E WITTER having an address of 9E> Clouser Road, Mechanicsburg, PA 17055 ("Contractor"). NOW, THEREFORE, Contractor, INTENDING TO BE LEGALLY BOUND HEREBY, and before any authority has been given to the said Contractor by Owner to commence any work on the said Property or to purchase materials therefore, does herby, for contractor and. for any and all subcontractors, materialmen, employees and parties acting or claiming for, through or under Contractor, covenant and agree with described real estate, or the building or improvements to be erected thereon, for or on account of any work done or materials furnished under said agreement or under any supplemental contract, verbal or written, or contract for extra work in or about the erection, construction and completion of said project, or otherwise; and Contractor, for Contractor and any and all subcontractors, materialmen, employees and parties acting or claiming through or under Contractor, hereby expressly waives and relinquishes the right to have, file or maintain any mechanics' liens or claims against said real estate or buildings or improvements. 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 erection, construction, supervision and completion. of the Project as to any work and labor done and materials furnished under said agreement. In order to give Owner full power and authority to protect the said real estate and buildings or any of them against any and all mechanics' liens or claims filed by Contractor or anyone acting or claiming for, through or under Contractor or in violation of this agreement, Contractor, for itself and all such aforesaid subcontractors, materialmen, employees and parties acting or claim for, through or under Contractor, hereby irrevocably authorizes and empowers any attorney of any Court of Common Pleas of the Commonwealth of Pennsylvania, or any attorney of any other court or jurisdiction there or elsewhere, to appear in any said courts or jurisdictions for Contractor and mark satisfied of record, at the cost and expense of Contractor, or anv such subcontractor, materialman, employee or party, any and all claim or claims, lien or liens tiled by or for Contractor or in its or their name against any of the said real estate, buildings or improvements. A copy of this Agreement, and a reference to the court, term and number or place ~ egos a~adc~ ~- in which this agreement and waiver shall have been filed, shall be sufficient evidence of the authority herein contained to warrant such action; and Contractor, for itself and all such parties, does hereby remise, release and quitclaim unto Owner, and its certain attorney or attorneys, any and all manner of errors, defects and imperfections whatsoever in entering such satisfaction or anywise touching or concerning the same. This agreement and waiver is made and intended to be filed with the Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania, or other proper place in which the above- described lands are located. It is expressly understood that the foregoing waiver and all of the provisions and remedies herein contained shall be available to and for the protection of Owner, its successors or assigns. In the event Contractor consists of more than one person, firm or corporation, the undertaking hereunder of each of such persons, firms or corporations shall be joint and several, and the word "Contractor" shall mean all or some of any of them. For the purposes of this agreement and waiver, the singular shall be deemed to include the plural, and the neuter shall be deemed to included the masculine and feminine, as the context may require. IN WITNESS WHEREOF, Contractor and Owner have hereunto signed and sealed these presents the date and year first above written. CONTRACTOR: Print Name: William E Witter Title: Owner OWNER: BUMBLE BEE HOLLOW, LLC. B ~ ~. LEGAL DESCRIPTION FOR BUMBLE BEE HOLLOW ALL THAT CEKTAIN tract of land situate in the Township of Upper Allen, County of Cumberland, Commonwealth of Pennsylvania, more particularly bounded and described as follows, to wit.: BEGINNING at a point at the intersection of the Eastern right-of--way line of Rider Lane and the Southern right-of--way line of U.S. Route 15, THENCE by the Southern right-of--way line of U.S. Route 15, North 41 degrees 07 minutes 57 seconds East, a distance of 404.54 feet to a point; THENCE by same, North 37 degrees 39 minutes 40 seconds East, a distance of 327.61 feet to a point; THENCE by same, North 40 degrees 50 minutes 30 seconds East, a distance of 282.29 feet to a point; THENCE by same, North 34 degrees 31 minutes 11 seconds East, a distance of 200.56 feet to a point; THENCE by same, South 30 degrees 45 minutes 45 seconds West, a distance of 202.53 feet to a point; THENCE by same, North 51 degrees 14 minutes 15 seconds East, a distance of 155.14 feet to a point; THENCE by same, North 44 degrees 22 minutes 41 seconds East, a distance of 203.59 feet to a point; THENCE by same, North 36 degrees 26 minutes, 59 seconds East, a distance of 151.70 feet to a point; THENCE by same, North 32 degrees 59 minutes 37 seconds East, a distance of 101.24 feet to a point; THIF:NCE by same, North 16 degrees 12 minutes 03 seconds East, a distance of 1.06.83 feet to a point; THENCE by same, North 37 degrees 18 minutes, 39 seconds l:?ast, a distance of 259.36 feet to a point; THENCE South 35 degrees 04 minutes 30 seconds East, a distance of 94.07 feet to a point; THENCE North 52 degrees 09 minutes 52 seconds East, a distance of 45.00 feet to a point on the westerly right-of--way line of Old Hollow Road; THENCE by same, by a curve to the ].eft having a radius of 741.20 feet, an arc distance of 132.24 feet to a point; THENCE by same, South 48 degrees 03 minutes 28 seconds East, a distance of 66.31 feet to a point; THENCE by same.. North 56 degrees 35 minutes 52 seconds East, a distance of 1.32 feet to a point; THEN(:E by same South 48 degrees 03 minutes 28 seconds East, a distance of 141.56 feet to a steel re-bar (set); THENCE by same, by a curve to the right having a radius of 343.27 feet, an arc distance of 164.55 feet to a point; THENCE by same, South 20 degrees 35 minutes 30 seconds East, a distance of 130.00 feet to a point; THENCE by same, South 20 degrees 35 minutes 30 seconds East, a distance of 219.80 feet to a point; THENCE by same by a curve to the left having a radius of 180.00 feet, an arc length of 107.49 feet to a. point; THENCE South 20 degrees 28 minutes 15 seconds East, a distance of 63.84 feet to a point; THENCE South 27 degrees 24 minutes 58 seconds East, a distance of 178.18 feet to a point in Bumble Bee Hollow Road; THENCE through Bumble 13ee Hollow Road and by lands now or late of Loring L. Thomas, South 02 degrees 35 minutes 59 seconds East, a distance of 524.61 feet to a steel re-bar (se1;); THENCE by lands of Loring L. Thomas and Grantham Heights, South 39 degrees 17 minutes 22 seconds West, a distance of 873.66 feet to a steel re-bar (found); THENCE by land of Grantham Heights, South 89 degrees 59 minutes 47 seconds West, a distance of 398.80 feet to an angle iron (found); THENCE by same, North 58 degrees 57 minutes 25 seconds West, a distance of 748.13 feet to a point; THENCE South 85 degrees 07 minutes 00 seconds West, a distance of 498.35 feet to a point on the eastern right-of--way line of Rider Lane; THENCE by same, North 4l degrees 06 minutes 29 seconds West, a distance of 52.25 feet to a point; THF,NCE North 35 degrees 16 minutes 57 seconds West, a distance of 163.3.5 feet to a point, the place of BEGINNING. THE ABOVE-DESCRIBED PREMISES BEING composed of property conveyed by (1) Bumble Bee Hollow Road Partnership to Klipsen Enterprises, Inc, dated December 14, 1989 and recorded in Cumberland County Deed Book I, Volume 34, Page 1 l 3 ~ (Tax Parcel 42-11-0276-008); (2) property conveyed by George T. Mummau and Beth A. Mummau, his wife, to Klipsen Enterprises, Inc. by virtue of a Deed. dated December 11, 1992 and recorded in Cumberland County Deed Book A, Volume 36, Rage 926 (Tax Parcel 42-11-0276-040); (3) property conveyed by Deborah Eckstein Ralph formerly known as Deborah M. Long and David E. Ralph to West Shore Golf, lnc. by virtue of a Deed dated July 21, 2000 and recorded in Cumberland County Deed Book 225, Page 890 (Tax Parcel 42-11-0276-008B); and (4) property conveyed by Patricia D. Shelton, formerly Patricia D. Eckstein, and John W. Shelton to Bumble Bee Hollow Sports, Inc. dated April 29, 1988 and recorded in Cumberland Count~~ Deed Book 176, Page 968 (Tax Parce142-11-0276-007). Klipsen Enterprises, Inc. and Bumble Bee Hollow Sports, Inc. were merged into Bumble Bee Hollow Golf, Inc. by Articles of Merger filed with the Pennsylvania Department of State on May 4, 2001. SUBCONTRACT AGREEMENT DATE: October 10, 2012 ORDER NO. BB 4R - SUBCONTRACTOR NAME/ADDRESS: William F_. Witter, 96 Clouser Road, Mechanicsburg PA 17055 PHONE: (717) 554--4918 FAX NO. (71.7) CONTRACTOR NAME/ADDRESS: Richmar Builders, Inc., 6160G Springford Drive, Harrisburg PA 171.11 PHONE: (717) 657-0840 FAX NO. (717) 6571219 CONTRACT PRICE: As per unit cost PROJECT: Bumble Bee Hollow COMPLETION TIME: THIS AGREE MEN f made at the office designated above of the above named Contractor on the data indicated above, heteveen the above Warned Contractor (hereinafter reta_rrFd to as "Contractor") and the above-Warned Subcontractor (hereinafter referred to as "Subcontractor"). W'H[REAS, the above named Contractor is obligated to construct certain improvements in respect to the above Warned project, asset forth in a certain (.outcast (which is hereinafter referred to as the "Main Contract")with the owner of said projFCt (which Yogeti7er with any successors is hereinafter referred tr as "Owner"~. These improvern~~nts are hereinafter referred to as "Project". NOW, THEFIEFORL, in consideration of the mutual covenants and agreements herein contained, and with intent to he legally bound, Contract and Subcontractor agree as follow: ~. Inconsideration of the total contract price to be paid by contractor to Subcontractor, Subcontractor agrees to furnish all materials and equipment for, and labor required to perform, all of the work on projer_t as specified in the attached schedule marked Schedule `A",and hereby made a part of hereof, being a part of the work described in the Main Contract referred to above. The Subcontractor hereby verifies that the list attached hereto as Schedule E3, made a part hereof which has been signed and dated by Subcontractor for identification, is an accurate and full list of the names and address o(all persons which will supply ~;ervices, labor, rnatei tats or equipment to Subcontractor in the performance of the Subcontract Agreement who have the right to file a mechanics' or materiahnen's lien or claim under the Pennsylvania Mechanics Lien Law of 1963, as amended. To the extent that `~uhcontractor retains any subcontractor or supplier whose name does not appear on Schedule B, said act shall constitute a material preach of this Agreement, subjecting Subcontractor to immediate termination. Should Subcontractor desire to alter Schedule d at ~rny point in time following the execution of this Agreement, it must provide written notification of the same to Contractor and obtain written approval. It shall not be permitted to retain any subcontractor or supplier that does not appear of Schedule d unle~.s and until it obtains such approval. R. Subcontractor shall submit to Contractor within three (3) weeks from the date of this contract where applicable, detailed drawings of material to be supplied and work to be performed. All drawings shall first be submitted to Contractor. After acceptance by the Contractor revised drawings shall be submitted to Contractor. As built a> required, will be submitted at Completion of job. C. ~~ubcontractor shall begin work immediately upon notification by Contractor to do so and complete its job within rho dine indicated above or as otherwise set forth in this contract. D. This contract shall become effective where a copy thereof, signed by or on behalf of Subcontractor, has Liam re±urnerl to Contractor evilhin five (5) days hereof. Time is of the essence of this contract This contract is subject to approval o' Conlr ar for E. Subject to the term<, and conditions of this contract, Contractor agrees to pay to Subcontractor for the perlonnance t~f it; work hereunder the contract price set forth abov~a, subject to additions and deductions, if any, as provided for herein -end ,+ko as maybe ,agreed upon In writing between the parties as shown in Schedule "A°. F. This contract is made subject to the following covenants, terms and conditions The material to be supplied and 1 he work to be performed hereunder, is to be supplied and performed under the direction of Contractor. Contracr.or's decision as to the true construction and meaning of the Main [ outcast shall be final. The term "work" as used herein shall refer to the performance of work and supply of materials as herein provided for. ?. The Subcontractor shall perform all of the work in accordance with the Main Contract, drawings, plan;. specifleations, conditions and other relevant documents and all amendments, supplements, revisions and modifications to each of there and to meet the approval and say isfaction of the Contract and all authorities involved. Subcontractr~r arl:nowiedges that he has been afforded an opportunity to examine the Main Contract and has received copies of specifira6on; plans, drawings and conditions relating to the work to be performed hereunder and represents that he is f ully familiar with the requirements thereof. No alterations shall be made in the work except upon written order of Contractor, and the amount to he paid by Contractor, or allowed by Subcontractor, by virtue of such alterations, roust be stated in said order. Contactor shall not be obligated to pay any amount other than the contract price specified herein for any work done by Subcontractor unless such work is done pursuant to such written order to Contractor. If Subcontractor shall proceed to rio any work under a change order which shall set forth the amount to be added or deducted or the terms of payment it shalt he ronclnsively presumed that Subcontract has agreed to such sum or terms. Should the parties be unable to agree upon the sum to be added or omitted, the Subcontractor shall proceed only upon a written change order of Contractor Iron which the statement of such sum to be added or deducted from the contract price shall be omitted. In such event the amount of any addition or deduction in respect of the change shall be determined on the basis of applicable unit price, as set forth in Schedule A, i( such unit prices are set forth d~ierein. If such unit prices are not indicated in .Sched~rle A, the amount to he added or deducted shall be equal to the actual cost In money to Subcontractor of materials and lahni (including \Norkmen's Compensation Insurance and Social Security taxes and any applicable Fringe benefits) required. plus actual cost of rental of any equipment used therefore at the site of the work other than tools and plu; a fee of ten percent (i0%) of such actual cost to cover all other msl items including but not limited to profit, office and field sunPrvision, overhead, administrative expenses and use of tools. ~. Subcontractor shall provide all labor, materials, hauling, freight, tools, scaffolding, shop drawings and equipment: necessary to do its work in accordance with this contract including everything necessary and requisite to finish properly its entire work, notwithstandin€; that every item may be specifically mentioned in this Contract III work when finished shall be delivered in a complete and undamaged state. Subcontractor shall protect all finished work from damage in the installation of its work and shall be responsible for any damage it may cause. Subcontractor shall supply all equipment, supplies and materials which it Iras undertaken to supply promptly and proceed diligently and with dispatch to complete its works without delay in such manner and with such force of skilled and experienced workmen and mechanics as shall be satisfactory to Contractor. Subcontractor shall not. delay or retard the progress of the project and ,hall at all times maintain a rate of progress consistent with that of the other trades as established by Contractor. In addition, Subcontractor agrees to complete the several portions and the whole of the work in accordance witty the progress schedule which shall be established by Contractor as the carne may be revised from time to time by Conti actor. The posting of such schedule or revisions thereof at Contractor's job shed or trailer shall he sufficient noticE~ thereof to Subcontractor. The inclusion of any such schedule or any revisions or any portion of either in the rninute~ of any job meeting shall also constitute sufficient notice thereof to Subcontractor. The reasonableness of all such progress schedules or revisions thereof shall he conclusively presumed as against Subcontractor unless Subrontraclor shall within ninety-six (96) hours of notice thereof file a formal protest thereto in writing with Contractor . tiuch f~notPst shall be effective only if its sets forth in detail the reasons Subcontractor considers such schedule unreasonable and proposes a reasonable schedule for the work of Subcontractor. Should Subcontractor in any way cause delay in the progress of the work so as to cause any loss to Contractor or Owner. Subcontractor shall be liable to Contractor or Owner for such loss. Subcontractor shall employ and shall cause its own subcontractors to employ only such labor and nst-~ and install only such supplies, materials and equipment as in the sole opinion of Contractor will not delay or interfere with the speedy progress of the work and will be acceptable to and work in harmony with labor of other trades working at the site so that the work will not be interrupted by labor disputes. If at any time during the progress of the work it appears to Contractor in its sole opinion that the labor being employed by Subcontractor is interfering with the speedv empress of the work. Subcontractor will immediately upon being notified by Contractor to do so employ such new labor as is satisfactory to Contractor. Subcontractor agrees to proceed with its work without interruption regardless of any trades affiliations or the lack of same on the part of any other workmen on the building project and pay not less that I he pr«wailin(t rate of wages. From time to time Subcontractor shall submit to Contractor within three (3) days of being requ~~steo to do ur copies of all orders placed for the various materials and supplies required for Subcontractor's work or authentic stock Gst<, if such material is normally taken from Subcontractor's stock. Order copies shall indicate type of materials or ,applies, quantity, vendor's name and address and such other information as Contractor may reasonably require. Upon request Subcontractor shall provide Contractor with proof satisfactory to Contractor that all such orders have been acr_epted by the vendors and that the delivery shall be timely in order to insure performance by Subcontractor m accordance with the requirements of this contract. Contractor may from time to tirrre required Subcontractor to prove in a rnarrner satisfactory to Contractor that it; own subcontractor, suppliers, materiahaten and employees have bean paid all sums currently due. Contractor coat' from time to time withhold all or any portions of any payments otherwise clue Subconkractor under this agreement if Subcontractor shall sail to provide any copies, proofs or lists requested by Contractor pursuant to this ser_tion until time as such materials are provided in a from satisfactory to contractor. The producing of evidence that all labor, work, materials and equipment has been paid for in full by Subcontractor shall be a Condition precedent to Subcontractor's right to any payment otherwise due. Subcontractor and Suhcoi~rtractor may not commence any action to receive payment unless it shall have first previously furnished such satisfactory e~~idence to Contractor. 7 Subcontractor shall, as its own expense, promptly clean up and remove all rubbish and debris and waste of any nature resulting from it. Should Subcontractor fail to do so, the Contractor may do so and charge the Subr ontrutor with the cost thereof. Rubbish and debris shall be deposited in containers provided by the Contractor and/nr in areas on site designated by the Contractor. u. Subcontractor shall not be entitled to extra payment on account of delay or damage claimed to have been caused by Owner, Contractor or any other subcontractor employed upon the Project. Subcontractor hereby guarantees its Work against defects as called for by the specifications. In the absence of any guarantee provision as to specific portions of Subcontractor's work. Subcontractor hereby guarantees such work, equipment and materials against defects for one (1) year from date of occupancy permit and two (<) years for items specified in the RWC Warranty (See Schedule "C"). All defective work, material and equipment shall be replaced at Subcontractor's sole expense. Neither the foregoing nor any provision of the Contract, nor any special guaranteed time limit, shall be held to limit Subcontractor's liability for error, omission or defects to a period less than that provided by the Statute of Limitations of the place of Che Project. Upon the request of Contractor, Subcontractor ~n~ill issue a separate written guaranty in form acceptable to Contractor. 10. The dimensions given on the plans, drawings and specifications must be verified by Subcontractor who shall take and be ultimately responsible for all such measurements and dimensions as will insure the proper matching ~?f the work covered by this contractor with all contiguous work. Should the proper and accurate performance of Subcontractor's work depend upon the proper and acuirat:e performance of work of Contractor or any other person or persons, Subcontractor shall use all necessary means to discover any defects in such other work and shall report all such defrrYS in writing to Contractor before proceeding with its Work and shall allow the one responsible to a reasonahln time to curse such defects to be remedied. t1, Contractor shall not be responsible for the safety of Subcontractor's materials, supplies or toclc_ iL. any underground work done by Subcontractor shall be properly backfilled, rammed, puddle,d, and reveled with proper sub grade. t3. Subcontractor agrees to comply with all laws, rules, ordinances and other requirements of any governmental authority now in force or hereafter adopted, wherever the same applies to material or equipment to be Furnished or work to be done by Subcontractor hereunder. Subcontractor also agrees to give proper governmental authorities all requisite notices relating to its work. Subcontractor shall obtain at its own cost and expense any and all inspections, approvals, permits, licenses, bonds, etc., with the exception of building permits, plumbing and sewer permits, required in The performance of its work, unless specified otherwise in Schedule "A". Subcontractor shall indemnify, proter t and hold harmless Contractor and all persons to whom Contractor may be responsible from and against all orders, restraints, penalties, directives, fines, etc. relating to its work. l4. Subcontractor agrees to indemnify, protect and hold harmless Contractor, its directors, officers, agents and/or employees from and against any expense, claim, liability, damage, cost, indemnity, royalty, license fee, legal fee and disbursement to which they or any of them may be put on account of any claim (including litigation for infringement or alleged infringement of any letters patent, patent rights, trademark or copyright) by reason of the Work or nt materials or equipment used, attached, installed or incorporated by Subcontractor or for violation of any patent, tradr~mark, copyright or similar right including use by Contractor and/or anyone claiming under or through Contractor acid,,/or Owner after installation of any article supplied or installed by Subcontractor. I S. Subcontractor shall, where advi~;able or required by Contractor, submit for inspection and tests samples of materials to be incorporated in the work. Such samples shall remain the property of Contractor without additional cost. Approval of drawings, details, samples and similar working materials by Contractor shall not relieve Subcontractor of its obligation to perform its Work in strict accordance with the contract, the plans, drawings and specifications or the proper matching and fitting of its Work with contiguous work. Approval of such working materials shall not relieve Si!bconhaclor of responsibility for deviations frorn plans, drawings or specification unless Subcontractor has in writint; called Contractor's attention to such deviations at the time of submission and secured written approval, nor shall it relieve Subcontractor of responsibility for errors in shop drawings or schedules. All wok by Subcontractor shall be in conformance with samples approved by Contractor and corsistent with all other provisions of this contract, the plans, drawings ,rod specifications. 16. Subcontractor must as soon as possible after execution of this Contract and where site conditions permit prior to commencing its work, notify Contractor in writing of any discrepancy, inconsistencies or errors in figure:, drawings, grades, lines, levels, dimensions, drawings or specifications affecting its Work. Any part of the work siurNm on drawings brit not specifically mentioned in the specification or vice versa shall be considered as part of the work, the carne as I:hough included in both. The contract documents contemplate a finished piece of work by Subcontract or of such character and quality as is descr bed in and reasonably inferable from wch documents. 3 7. Subcontractor shall provide proper facilities at all times for the inspection of its Work by the Contractor or their authorized representatives. Subcontractor shall at once remove all materials and take down and reb~rild all portions of the WorK condemned by Contractor. 1R. If for any reason whatsoever (other than the fault of Subcontractor) Contractor terminates work under th~~ (contract, Subcontractor shall be paid the proportionate value of the Work completed and all obligations of tons rector under this Contract shall terminate; provided, however that if Contractor cancels this contract as provided in Srction 19 or 20, orior any other cause attributable to Subcontractor, Section No. 30, and nut this Section shall govern the= rights of the parties. l~:a. If any work, equipment or materials turnished by Subcontractor is, in the reasonable opinion of ihr (nntr. clot, unsatisfactory, unsound, improper, or in any way fail to conform to this Contract. or if Subcontractor violates in any way any provision of this Contract, Contractor, in addition to and in no way in limitation of any other remedy (ontractor may have in law or equity, may immediately require Subcontractor to terminate its work. Under such circumstances (:ontractor shall also have the rif;hts provided for in the case of termination under Section 20 )(l. If it shall reasonably appear to Contractor that Subcontractor shall at any time failed to supply a urffirianf number of skilled workmen, equipment and/or materials of the proper quality and quantity or have failed in any other respect to prosecute its Work with promptness and diligence and otherwise to the satisfaction of Contractor or cau~N by any action or omission whatever regardless of fault, the stoppage or delay of, or other interference with, the Wei k of Contractor or of any other Contractor or Subcontractor on the Project, or have violated any provision of this congracE, or should a petition In bankruptcy or for reorganization be filed by or against Subcontractor or any corporation with sihstanlially the same management as Subcontractor, or should Subcontractor become insolvent, fail to meet il~s obligations as the same become ;lue, go into liquidation either voluntarily or under an order of Court, make an assignment for the benefit: of creditors or acknowledge insolvency. Contractor may at any time after twenty four (24) hours writl:en or telegraphic notice to Subcontractor provide through itself or through others all labor and materials appropriate to complete all or any portion of Subcontractor's work and deduct the cost thereof (plus a reasonable percentage fvr Contractor's overhead and profit) from any money due or to become due to Subcontractor under this contract or otherwise and collect any deficiency from Subcontractor. Contractor may also under any such circumstances terminate the perfonnnnce of work by Subcontractor hereunder and take possession and use any and all materials, tools, equipment and appliances of Subcontractor and employ others to finish Subcontractor's Work and provide equipment and materials ihr~refore. Upon the occurrence of any of the events, acts or omissions referred to above this paragraph, Contractor may, but shall not be required to, make payments to others as it deems appropriate to discharge 'm whole or i~a part any claim against Subcontractor for work under this contract or otherwise and Subcontractor egrets Chat the actual amormt so expended by Contractor in good faith may be deducted frorn the amount due or to bea>nae due hereunder or oihwwise be recovered from Subcontractor. Contractor may hold, sell or otherwise realize upon any materials, aipplie~, machinery, tools, appliances or other equipment of Subcontractor upon the premises on account of any claim o(any claim against Subcontracor without prejudice to any other remedy Contractor may have under any other provisions of 1 his contract, or otherwise at law or in equity. In case of such termination of Subcontractor's performance, Subcontractor ;hall not be entitled to receive any further payments and this contract until the entire Project shall be rnmplelyd, at which time, if the unpaid balance to be paid under this contract, shall exceed the expenses incurred by Contractor in completing or having completed Subcontractor's Work, such excess shall he paid by Contractor to Subcontractor; bu! ii such expenses shall exceed such unpaid balance then Subcontractor shall pay the excess to Contractor. Fur this pro pose F~xpenses incurred by Contractor shall include not only the cost of completing Subconhactor's Work and thr reasonable value of the tune of Contractor's personnel and executives expended as a result of such circumstances; but also amt damage incurred a> a rendt of any such clrnnnstance, including, but not limited lo, expenses or other loss nr ttamaga incident to delay- Subcontractor shall not remove any materials, equipment or >upplies once upon the Project site wit bout the express written authority of Contractor. All properly shall become the property of Owner and/or Contractor ~~~~pnn being incorporated into or attached to the real estate. The foregoing shall not relieve Subcontractor fi~ona its solr~ responsibility for the care and protection of its work or for restoration of any damaged work, or constitute a waiv,~r of any rights of Contractor to require the faithful fulfillment of all teens of this contract. Contractors is hereby authorized at any time prior to the termination of this urntract and within sixty (60) days after any such termination iregardless cr(the reason for such termination) to take procession of any materials, equipment and supplies delivered upon the PrejecY ~.ite regardless of whether payment or partial payment therefore has previously been made by Contractor and regardless n[ whether they have been incorporate into the real estate. In any such case Subcontractor shall be case Subcontractor shall be credited with its net invoice cost of any such materials and supplies for which it has not theretofore born paid, or the reasonable market valve thereof, whicftever shall be less. At any time prior to or following the trrminatiorr of this contract (regardless of the reason for such termination) Contractor may take possession of any eyrripment or tools at the premises and owned by Subcontractor, or any of its Subcontractors. In such case, Subcontractor shah he eedited with the lesser of the value thereof or the fair rental val~.re thereof for the period during which they ai r art Wally used by Contractor or its Subcontractor. '~ A. Subcontractor agrees to indemnify and save harrnlass Contractor and Owner against ios~, or exl~enso by reason of any liability Imposed by law upon Contractor and/or Owner for bodily injuries acrd/ar death sustained by any person or parsons or on account of damage or loss to property, arising w~hoily nr in part out of or in consequences of performance of Subcontractor's work without regard to the case or claimed cause of such injuries, death, damages, or loss or whether such injuries, death, damage or loss arc--~ due or claimed to be due to any negligence (including gross negligence) or other act or failure to act of Contractor or Owner orihe employees, officers or agents of either or both of them whether ocean ing either [rrlor to <u following the execution of this agre=ement. In addition to the foregoing provisions of this Section 22 and all other provisions oF+,his contract and of the Schedule "~", but without intentions to limit, modify, condition or affect the interpretation of any such other provisions in any manner whatsoever. Subcontractor agrees at all limes to protect, indemnify and to hold harmless Contractor and Owner, their agents, officers and employees from and aga'mst all claims, liability, suits, judgments and damages occurring, brought, recovered or exacted against Contractor and/vr Owner for or on account of : (1) any injury to or death of any employee of Subcontractor or of any Suhcontractor or Supplier of Subcontractor, (2) any loss or damages to any property of Subcontractor or nt any `>upplier or Subcontractor of Subcontractor, or (3) any injury or death of any person or persons or Ions or damage of any property by reason of any act, duty, omission, misconduct or negligence (including gross r,egligenre) of Subcontractor, its agents or employees. Subcontractor shall be liable hereunder whether or n>t such injury, death, loss or damage shall be contributed to by the misconduct, act, omission and/or negligence (including gross negligence) of Contract and/or Owner, or the agents, officers, and/or employees of either of them and/or any failure of any of them to comply with any law, ordinances or regulation whatsoever and Subcontractor waives and releases the right of contribution from any of them with respect to any sucPr liability, claim, suit, damage, lass, expense, injury or deatl~r. Subcontractor also agrees at all times to protect, indemnify and hold harmless Contractor and/or Owner, their agents, officers, and employees horn any and all loss, damage or expense which any of them may sustain by reason of any injury, loss n( damage to their property or to property over which any of them has control, possession or custody, where such injury, loss or damage arises out of performance of its work by Subcontractor, or on account of any ac t nr omission of Subcontractor, its agent, employees, subcontractor, vendors, materialmen or any other parson having anything whatsoever to do with the work of Subcontractor. Subcontractor also agrees to protect, indemnify and hold harmless Contractor and Owner, their agents, officers and employees against all r_laims of any nature whatsoever of all subcontractors, materialmen, officers and employees of Subcontractor including court costs and reasonable attorney fees incurred in the defense of any such claims. Subcontractor agrees to indemnify and hold harmless Contractor against all costs, including reasonable attorney fees incurred in the defense of any litigation instituted by Subcontractor to which litigation Contractor is ultimately found to be meritorious in whole or in part Subcontractor also agrees to pay Lo Contractor the costs including reasonable attorney fees of enforcing any one or more provisions of this contract against Suhcontractor. Subcontractor -agrees to indemnify and hold harmless Contractor and Owner against loss, damage, liability or expense of any nature including but not limited to expenses of arbitration, litigation and attorney's fees 6y reason of any and all claims or liabilities imposed by law or otherwise arising out of or resulting from any act or ornis;ion on the part of Subcontractor, its own subcontractors, agents, or employees or any of them during and in or about the performance of this contract and any extra work or work supplementary hereto. Suhconirartor shall at all times indemnify, protect and save harmless Contractor and Owner of and from all expen>e<~, costs, losses, judgments and any of-her obligations of any natur e whatsoever arising out of all and any claims for Workmen's Compensation which may be made by any of the employees of Subcontractor or by any of the employees of any of its own subcontractors. ?3. Drawings, specifications and other documents and electronic data tarnished by the Contractor to the tnbcontrador with respect to the Project and any part thereof (Che "Plans") shall not he used by the Subcontractor or its. alfiliates, agents or employees for any work other than the Project. The Plans are to be kept in strict confidence and shall not directly or indirectly be disclosed or copied by Subcontractor, its' affiliates, agents or employees. T"he Contractor or the Owner may enforce this Agreement by all available means at law or in equity. ?4. Subcontractor shall obtain and maintain in full force and effect during the term of this contract policies of insurance issued by companies acceptable to Contractor against the risks and in the minimum amormts specifiecl by Contractor. before commencing its work hereunder. Subcontractor shall furnish to Contractor and such other per sons as Contractor may designate, certificate issued by each Subcontractor's insurers in form designate by Contractor showing that all the required insurance is in force and will not be terminated or changed without at least ten (10) days prior wi itten notice from the insurer to each certificate holder. New certificates evidencing renewal of such insurance shall likewise be furnished at least fifteen (15) dais prior to the date of expiration of any required insurance policy. At the request of Contractor, Subcontractor shall within five (5) days furnish copies of all such insurance policies and ,hall permit such persons as Contractor may designate to examine the original of each policy. Subcontractor is an indr>pendent contractor in respect to the work it has undertaken hereunder or otherwise performs in respect to this Project- Z ;. Subcontractor shall comply with all laws, statutes, ordinances, cedes and regulations relative to the payment or collection of all sales, use or other taxes, premiums, excises, contributions or charges against or with respect to the wages or salaries of Subcontractor, its employees and officers or against or with respect to any supplies, equipment and materials !rsed or consumed in the performance of this contractor incorporated into the real estate. Subcontractor hereby assumes full and exclusive liability and responsibility for the payment of tars, premiums, excise, contributions and charges with respect to all labor and property used in any manner whatsoever by a person in the full ilhnent of this contract or in the performance of any work supplementary hereto, and shall indemnify, protect and hold fiarrnless Contractor and Owner from and against any and all expense, loss or damage, which Contractor may sustain on account of any assessment, claim, demand or suit including all costs and expense arising there from, made or brought against Contractor and/or Owner under any provisions of any law, statute, ordinance, rule, regulation, requimrnent, tax premium, excise, contribution or charge. The contract price specified herein includes all Municipal, I Deal, Stale, County and Federal taxes imposed by lavv to be collected or paid by Subcontractor. Where the law so requirns, any such tax must he stated and charged separately from the sales price but in any event, the total of the sale prig and of the added tax shall not exceed the contract consideration stated herein unless and except as otherwise specifically provided in Schedule A., G. A. Subcontractor shall present invoices for payment by 12:00 Noon two (2) working days prior to the twice a month payrnenC days, which are the (date) and(dateJ of each month. Should payment date fall on a weekend or Monday, submission will be due on Wednesday or two (2) days prior to a Holiday. Fac h invoice and each piece of correspondence concerning the contract shall be identified by the Subcontrirt Number, cost code and work description. Payments shall be made on the (date) and (dated upon release of funds by the Owner. Contractor may retain out of each payment which Contractor may make to Subcontractor prior to linal completion and acceptance of Subcontractor's work. an amount equal to ten percent (l0%) of the amount which Contractor has approved for payment. Such retained amounts may be separately invoiced for sixty (60) days after payment of the approved amounts. Retained amounts are paid subject to insirecrion approval and acceptance of Subcontractor's work by Contractor R. All invoices submitted by Subcontractor shall constitute a representation and warranty by Subcontractor that the sums claimed thereon are the labor and/or materials physically incorporated in the work Ulat the labor and materials for which payment is requested conform to the plans and specifications anti to all applicably laws, ordinances and regulations; that all such work was done in a good and workmanliky rnannpr, that alt materials were of the type and quality required hereunder and fret' of defects; and that all persons supplying labor, materials or equipmynt to Subcontractor have been paid for all servicys and materials provided to Subcontrar_tor in the completion of all work up to and including the work and materials a)vyrPd by such invoice. It is specifically understood that all monies paid by Contractor to Subconvacu)r shall he held in tn)st for all sub subcontractors and suppliers retained by Subcontractor to provide labor :and/ar rnatyrials to the project hereunder. Subcontractor and its officers shall act as a fiduciaries over such funds and, as such, shall assure that those funds are appropriately applied to the accounts of any sub-subcontractors and material suppliers retained by it. It is specifically understood that for all such sub-subcontractors and suppliers. Subcontractor is simply holding such funds far the benefit of those sub-subcontractors and shall have no right or claim to the same. C. Subcontractor hereby releases Owner and Construction Lender from any duty or obligation that might otherwise exist, expressly or by implication of fact: or law, to see to the payment to Subcontractor by Contractor of any funds paid by Owner or Construction Lender to Contractor and agrees that Owner, the Construction Lender and/or Contractor coat' in their sole discretion abut under no cirarnulancys hall have an obligation to duty) pay Subcontractor's subcontractor, suppliers, materialmen or laborers directly far work performed hereunder or in connection herewith and that any and all such payments shall, for all purposes, be treated as payment to Subcontractor of the sums due hereunder. Owner and/or the Construction Lender shall have no duty or obligation to observe any cost breakdown or stage or unit payment or other payment schedule in making payment to Owner, Contractor or any other person. The obligation of Contractor under this Agreement shall be reducyd to the extent of any payments made directly by constriction lyndyr or Owner to Subcontractor. The foregoing sentynce shall not be construed to require either Owner or~~onstruction I_Pnder to make any such payments directly to Subcontractor. Anything herein contained [o the contrary notwithstanding. Constnrdion Lender shall in no event be obligated to inquire into thy accuracy, correctness or reasonableness of the cost breakdown suppliyd by Owner or contractor aor shall it have any obligation or duty to Subcontractor or to any other person, including, without lirriitation. Subcontractor's subcontractor, suppliers, materialmen, or PrnployPes, to aSCertaln Whetkler Or not paylllynt5 made by It cOfleSpOnd In amOllnt LO thy Surn: WIIICh 1.1)p payee Or payePS are entitled under the tyrms of the said cost breakdown, voucher, order or any other document or documents relating thereto or to the Construction Loan Agreprnent or whether the person, to whictr Lhe payment is made is the proper recipient thereof. The Construction Lender shall have no liability as a result of the making or withholding of any payment even if its acts are negligent grossly negligent or willful and this shall by true whether or not iC has actual knowledge that the payee or payees are misapplying the rnonrPS paid and/or are not or have not or do not intend to pay their or any of their contractors, subcontrtcrors, employees, suppliers or materialmen. It is Further agreed by Subcontractor that the provision hereof shall be applicably to, inlet olio and without limitation, any situation or circumstances in which Construction lender apphys such monies or property to satisfy the indebtedness of Owner or Contractor to it or to cure or protect agaln~tt or pmvent any default hereunder as well as to the circumstance in which monies paid by Constriction I ender to any person, including Owner and Contractor, exceed or art' less than UrP monies properly payable to such person, and also to the circumstance where the monies retained in the Construction Loan Account by tonstructiorr Lender are insufficient to permit completion of construction and/or the payment of all or any materialmen, suppliers, laborers, contractors, or other persons. E Subcontractor shall not at any time make or cause to be made or pyrrnit any of its subcontractors to make any contract for materials or equipment to be used in the work on a conditional sales basis or on any other basis whereby title to the equipment and materials does not pass free of all liens to Owner when delivered Lo the building site. phis covenant is a separate, distinct and independent covenant and no default by Contractor shall relieve or release Subcontractor or Contractor of or from this covenant. Subcontractor hereby authorises Contractor and Owner and each of them, to mal<y direct true chase of all or any portion of the tangible personal propyrty either to by consumed by Subcontractor in the pNrformance of this Subcontract Agreement or to be incorporated by Subcontractor into the Work in the pyrfoi manse of the Subcontract Agreement, provided that written notice, which may bP in the form of a ropy o(a hroposPd purchase order covering the specific items intended to be so purchased directly, shall bP Wivpn by the Owner of the Contractor, as the easy may by, to Subcontractor prior to the entry by Subcontractor intr+ a Iygally binding obligation to purchase such property. If the valve of such propyrty is specified in, or may by computed from, Schedule "A', sucks value shall be credited again the Contract Pricy as if it has been pall dh Pctly to Subcontractor by Contractor. If such valve is not so determinable, Contractor shall give written notice to Subcontractor of the price intended to be paid for such propyrty prior to the placernynt of the order, and if Subcontractor does not object in writing to such pricy wil:hin five (5) days or receipt of notice ni the same, said price shall 6e credited against the Contract price as if it had been paid directly to Subcontractor by Contractor. Unless Subcontractor advises ConUactor in writing within ten (10) days after rer_eipt of a copy of the proposed direct purchase order for any such property that the propyrty covered 6t' such order is n<); acceptable. Subcontractor shall upon delivery thereof, in all respycts be responsible for such properly and (or all work performed by Subcontractor with respect thereto, including but not limited to all guaru)ties provided for under the Contract relating to such propyrty and work, to the same yr.tent as if Subcontractor start purchased such property directly from the supplier. )7. Contractor may make progress payments to Subcontractor for work completed hereunder on the basis of the price or prices (if any) stipulated in Schedule "A". Contractor may require Subcontractor to furnish security, in the form of a bond or other form acceptable to Contractor, against mechanics' and other liens as a condition precedent to any or all payment for work done hereunder without regard to whether or not Owner shall have advance Contractor any money for work done by Subcontractor. Na payment under this contract (including the final payment) shall be evidence of the performance of Subcontractor's work, either in whole or in part, and no such payment shall by cnnstn)Pd as an acceptanre of non-conforming, inadequate, defeclivy or improper work, equipmynt or materiak the ~r~,P of contractor or Owner or anyone claiming under or through Contractor or Owner shall not constituty acceptance of Glhcontrar_tor's work hernunder or any part thereof. Contractor, in its own absolute discretion, nray (but under nn rain: ;nnstance shall bP required) withhold any payment othyrwisy due under the contract to such extend as it deems proper on a. count of (1) defective work, (2) claims filed or its reasonable belief that claims may by field, (3) failure of subconl~artor to make prompt payment to its employees, its own subcontractors or suppliers in respect to either this or any other project, (4) apparynt inability of .Subcontractor to complete its work for Lhp balance thyn unpaid, and/or (;) dain.apP for which Subcontractor may be liable to Contractor, Owner or another subcontractor. Contractor may at any time when, in its own absolute discretion, it deems if appropriate, pay directly to any employee. Subcontractor's own subcontractor or suppliers any sums which it reasonably believes to be due any such person or person arising out of this or any other project. All such payments shall be proper charges against the sums due Subcontractor under the agrnement or otherwise due Subcontractor for any other work. Subcontractor shall, as a condition precedent to the receipt of any progress payment, complete, sign and submit to Contractor with the form of "Partial Release of fir ns", which is attached hereto as Exhibit 1. As a condition precedent to payment, Subcontractor shall also require each and evrrv one of its sub- subcontractors and material suppliers, as well as other persons supply materials, labor or work to Subcontractor to complete, sign and submit the same form of Partial Release of Liens as referenced above, which shall cover ail materials, labor and work up to and includ ng the materials, labor or work covered by such progress pavrnent. SrihconU odor shall attach ail such Releases to its requisitions for payment. With respect to final payment, Subcontractor shall, as a condition precedent to the receipt thereof, complete, sign and submit to Contractor the form of "Final Release of Liens" which is attached hereto as Exhibit 2. As a condition precedent to payment. Subcontractor shall also require each and every one of its sub-subcontractors and material suppliers, as well as all other persons supply materials, labor or work to Subcontractor to complete, sign and submit the same form of Final Release of Liens as referenced above, which shall cover all materials, tabor and work up to and including the materials, labor or work covered from the last progress payment made to final completion of the work. To the extent that Contractor requests any additional forms of releases, including, but not limited to, releases for specific structures or lots upon which Subcontractor performs work. Subcontractor hereby agrees to provide the ~,arme at Contractor's request. Acceptance of any partial payment shall constitute a full and cornplefe waiver of any claims that Subcontractor had up to that point on the project. Acceptance of final payment by the Subcontractor shall constitute a frill and final release of any and ail claims relating to the project. 28. Subcontractor shall not be relieved of any liability or responsibility should Contractor fail to provide a ~roatrfrman even if a watchman is required by the terms of any general conditions, contract, specification or other document relating to the Project. Contractor shall not be liable under any circumstance for failure to so provide a watchman ar for any event resulting. directly or indirectly From such failure. L'9. Subcontractor shall, at its own expense, furnish to Contractor or such person as Contractor shall designate a bond or bonds guaranteeing the faithful performance of the provision of this contract and the full payment far all Tabor and materials used in the performance hereof by Subcontractor and its subcontractor. Such bonds shall he in <,nch form and amount with such surety as shall be approved by Contractor. 3f1. A. Subcontractor for itself, its own subcontractor, materialmen and employees, and all person acting through or under it, them or any of them, covenants and agrees that to the fullest extent permitted by law no mechanics' claim or lien shall be filed or maintained by it, them or any of there against the building ar buildings or other improvements which are the subject of this contract and/or the lot or lots of ground appurtenant thereto or any of them, for or on account of any work or labor done or materials furnished by it„ them, or any of them, under this contract, or otherwise, for, towards, in or about erection and construction of said building, buildings, other improvements or any of them, and Subcontractor for itself, ih own subcontractors, materiahmen and employees, and all persons acting through or under it, them or any of iLevn, hereby expressly waives and relinquishes the right to have, file or maintain any stop orders or noticr~ of intention of any mechanics' lien or claim against the building, buildings or other improvements or airy of them or lot or lots o(ground appurtenant hereto and covenants and agrees that this agreement waivinN Ure rlghi of hen shall be an independent coveaanl and shall operate and br effective as well with respect to work and labor done and materials furnished under any supplemental contract or contracts including contract and a~ rangements for extra work in and about erection and constnictiorr of said building, buildings, ar of het inrninvements or any of them whether any such contracts or arrangements be verbal or written. Subcontractor agrr<~s to rxearte at any time and from tune to time al the request of Contractor a separate waiver or ~.vaiver of rnechanir_s' lien on forms supplied by Contractor and further agrees that said separate waiver orwaivers and This contract or any or all of them may be filed on record at any tune and from time to time. If notwithstanding the foregoing, and attachment, order, claims, notice of intention or notice of lien or of claim are filed against the prrrnises, protect. Contractor or Owner or the monies due or owing to Owner and/or Contractor arising out of or by reason of any accidert for which the Subcontractor is alleged to be liable or on acz~ormt of the work performed and/or materials furnished directly or indirectly by Subcontract, Subcontnctor shall hear all cost, damage, and expense by reason thereof and obtain at its own expense surely company bonds Ia cancel or discharge the same and indemnify the Owner and the ConUactor by reason of such action Subcontractor agrees if requested bpi Contractor to provide Contractor with a Waiver of Lien; in form selisfacrory to Contractor executed by each of its own subcontractors and supphers. B. If at any time there shall be evidence of any lien or claim for which, it established, Owner or Cant ractor might become liable and which might be chargeable to Subcontractor, or if damage shall br caused by Subcontractor to other work at the project. Contractor shall have the right to retain out of any payment due ur thereafter to become due to Subcontractor, an amount sufficient to completely indemnify itself and the person or persons responsible for such other work for any possible loss or damage including legal fees and rii;bursaments which any of them may sustain in discharging, satisfying and making good such claim, lien of damage. Subcontractor shall pay to Contractor all monies that Contractor Wray pay in good faith in discharging, ;at~sfying or making good any such claim, lien and damage and all expenses incurred in connection therewith without regard to whether contractor is legally obligated so to discharge, satisfy or nrakr good. As an additional and bother remedy, the retained amount of any progress payment may be aliplied by Contractor to the satisfaction of any mechanics' or other liens filed as a result of the work agreed to be doer by Subcontractor. II is expressly understood and agreed that the Contractor may so satisfy any such lien so filed wiUrout first determining the validity of such lien, and Subcontractor shall br liable to Contractor for the amount so usari. 3'1. Upon being so notified by Contractor, Subcontractor may not sublet or assign any of its work Lo he done at the site of the work without first obtaining the written permission of Contractor, ear may Subcontractor assign any right to receive any payment hereunder without first obtaining the written consent of Contractor. Such permission may be withheld by Contractor with or without Cause and if granted may be made subject to any conditions set forth by !.ontru for in such written permission. An attempt to make any prohibited assignment ar subletting shall r..onstilutr an irrevocable offer by Subcontract to Contractor to lerrninate Chis contract at any time thereafter and to accept the progress payment made to the date of terminate as full payment hereunder and in discharging o(all obligations of Contractor try ;uhrontractor. Any unauthorized assignment shall not vest any rights whatsoever in the purported assigner. In no rase shall the Melting of any subcontractor by Subcontractor relieve the Subcontractor of its liability and obligations under this con! tact. If (:Detractor pays for, or guarantees payment for, labor, materials, supplies or equipment used or to bra nsrrr by Subcontractor in performance of this contact, the gross billed cost of the same may be deducted h om rlu~ sums otherwise due Subcontractor hereunder. Subcontractor shall prior to any of its own subcontractors entering upon the premises secure from such subcontractors certificates of insurance identical to those required of it by this contract and file the same with Contractor and/or such other person as shall be designed by Contractor. Each such subcontractor of this subcontractor shall be bound by all of the provisions of this contract including, without limitation, the provisions for waiver of mechanics' liens and assumption of liability. As between Contractor and Subcontractor, Subcontractor shall be responsible for all acts and omission of its own subcontractors. 32. All dates and time periods expressed in this contract or set forth in any notice given by Contractor under the terms of this contract are of the essence of the contract. 33. Except, if and to the extent the contract documents may assign the obligation to provide protection to some other person and such protection is so actually provided by such other person. Subcontractor shall adequately and properly protect its work by lights, barriers, support;, guards and all other appropriate protections and shall adhere to ail safety regulations and requirements of Owner, Contractor and Federal, State, Local and other governmental and public authorities. Subcontractor shall avoid injury and damage to persons and property and shall be responsible (as between Contractor and itself) for any such injury or damage resulting from its failure to do so. Subcontractor shall post danger signs warning against all hazards, in accordance with OSHA, relating to its work including but not limited to protruding nails, hoists, well hates, elevator hatchways, scaffolding, window and door openings, stairways, falling materials, chutes, high voltage and heated surfaces. Railings shall be installed in accordance with OSHA requirements. Subcontractor shall continuously maintain adequate protection for its work from damage and shall protect property of others at the premises from injury or loss arising out of its activitie[, or those of its agents, employees and its own subcontractors. Except. as otherwise specifically provided herein. Contractor shall not be responsible for any loss or damage to Subcontractor's work until after pre-occupancy inspection by Contractor. Contractor shall not under any circumstances be responsible for loss or damage to equipment, supplies, materials , tools or appliances of Subcontractor used or to be used ur perforrance of its work or otherwise at the premises. 34. It is expressly understood and agreed that this contract applies only to the particular work specified in Schedule "A"and that the signing of this contract shall not be implied to create a continuing relationship nor an obligation on the part of the Contractor to award any other subcontractors to the Subcontractor herein at any future Time, on this or any other construction project which may be undertake by Contractor. 35. The failure of Contractor or Owner to exercise any right or remedy provided for in this contract shall riot preclude the resort to other appropriate remedies not shall the use of any special remedy provided herein prevent. the subsequent or concurrent resort to any other remedy which by law or equity would be vested in Contractor or Owner for the rer_overy of damages or otherwise in the event of a breach by Subcontractor. The failure nn one or more occasions of Contractor or Owner to require strict performance of any provision of this contract, even though such failure may regularly reoccur, shall not constitute a waiver of its right to require strict perfarmance of the carne provision or of any other provision of this contract on any subsequent occasion. Rules of construction providing for strict construction of ronirar_tual provisions against the party preparing a contract shall not be applicable to any provision of this contract Each provision of this contract is intended to be cumulative and severable and in construing any provision of this contract, the content of a different or associated provision shall not be construed to limit the applicability of a general provision except where such intent to limit is specifically set forth. The principle that express mention excludes that which is omitted shall not be applicable to any provision of th s contract vesting rights or remedies in Contractor or Owner. nor ;hall the principal of ejusdern eneric be applicable to any such provision of this contract. If any printed provision of this contract shall have been stricken or modified, the contract shall be interpreted as if it had been printed originally as so changed and no added significance shall he given to sur_h change. 3G. Final payment need not be made until upon the completion of its work. Subcontractor shall provide Contractor will a full set of "as built" transparencies marked up to show all changes and job conditions, and the location of all rornponent parts of Subcontractor's work not specifically located nn the original plans and drawings or which in any rr~spect whatsoever are at variance with the locations as shown on the original plan and drawings. "he masculine, feminine and neuter forms of words shall be substituted one for the other wherever herein the context so requires. The singular and plural forms or words shall be substituted one for the otfier wherever herein the context so requires. This writing, together with docurents referred to herein, represents the entire agreement and contract between the parties. there are no agreements, understanding, inducements or representations, oral or otherwise, leading up to or inducing the execution of this contract which are not contained herein. This contract may not be modified except by writing signed by both of the parties hereto. Written notices required by any provision of this contract shall be sufficient if mailed by registered mail by either party to the other at his respective address set forth in this contract or at such other address as may hereafter be designed by written notice given as provided by this Section. Contractor may a1 any time and from time to time with or without notice to Subcontractor assign and/or delegate all or any of its rights, privileges and immunities as provided for herein to the Construction Lender, Owner ar~d/or such person or persons as shall be designated by either of them. IN WITNESS WHEREOF. the parties hereto have sealed and executed this contract as of the day and year first above written William E Witter RICHMAR BUILDERS, INC (Name ofSubcontractor) (Name of Contractor) CORPORATE. OR c , c t r ~ j c_-..` _ _.-- _ ~ _ _ _-- CORPORATE INDIVIDt1AL By:~~.) ~-~~~~~- ~~ ~~~_ ~ EA SEAL - - William E Witter Marc DeSouza, President S L OF OF CONTRACTOR SUBCONTRACTOR Attest Attest: {Sec. or Asst. Sec.) (Secretary) SCHEDULE "A" Attached to a certain agreement by and between the undersigned Contractor and the undersigned Subcontractor as of the date and in respect to the project and order number indicated below. 1 This Subcontract Agreement is for balance of units located in Upper Allen Township, Cumberland County, Pennsylvania. Hereafter the Townhouse units will be referred to as "Townhouse". 2 -The terms, conditions and prices set forth herein shall remain in effect for the entire term of the construction of all 188 units. The actual rate of construction will be determined by a construction schedule which will be revised from tune to time as necessary. 3 The Subcontractor's responsibility, before initiating his phase of the work, is to exar7~ine the surroundings, the drawings, and the specifications, to satisfy him that all conditions are suitable for initiating his work. 4 In consideration of the compensation herein provided to be paid, the subcontractor will remedy at his own expense and to the reasonable standards of the trade, any and all defective work that is brought to his attention within the guarantee period of one year from the date of occupancy. All installation shall be incompliance with requirements and standards set forth in the Residential Warranty Program, IECC 2006 Building Energy Conservation Act, Manufactures Specifications and Subcontractor agrees to make repairs to defective work as may be required under this warranty. Subcontractor agrees to respond to any calls within atwenty-four (2~t) hour period. 5 Subcontractor's work will include any small items which are normally included in his ~.~hase of work. 6 A sum equal to ten percent (10'%) of the total cost of each building/unit shall be withheld for a period of sixty (60) days after ar_ceptance of the work by the Contractor. Subcontractor shall separately invoice for this amount. 7 The Subcontractor will remove all excess materials and clean up debris as work I~rogresses and shall be responsible for the protection of his work. 8. Subcontractor shall, at its own Expense, promptly clean up and remove all rubbisk~ aril debris and waste of any nature resulting from it. Should Subcontractor fail to do so, the Contractor may do so and charge the Subcontractor with the cost thereof. Rubbish and debris shall be deposited in containers provided by the Contractor and/or in areas on site designated by the Contractor. 9. Subcontractor shall obtain and maintain in full force and effect during the term of this contract policies of insurance issued by companies acceptable by Contractor before r_omrr7encing its work. The policies shall include workmen's compensation, general and automobile liabilities, as follow: ,A. ].. Workmen's Compensation Employer's Liability 2. Comprehensive General Bodily Injury Liability 3. Comprehensive General Property Damage Liability 4. Automobile Bodily Injury Liability 5. Automobile Property Damage Liability Statutory $.500,000 $1,000,000 per occurrence and aggregate, where applicable $1,000,000 per occurrence and aggregate, where applicable $1,000,000 each person $1,000,000 per occurrence Name of Subcontractor: William E Witter Name of Contractor: Richmar !Builders, Inc. Date: Octok~er 10, 2012 William E Witter, Owner ~~~_~ ~ ~~ Marc DeSouza, Preside t Order No: BB-48 Project: Bumble Bee Hollow SCHEDULE "A" Attached to a certain agreement by and between the undersigned Contractor and the undersigned Subrontractor as of the date and in respect to the project and order number indicated below.. B. The policies in items A,2 & 3 above shall include coverage for: 1. Broad form property damage. J_ Product liability. 3 Contractor's protective liability, covering all Subcontractors' Vendors and Sub-Subcontractors. t Contractual liability assumed in the Subcontract. 5. Completed operations liability. C. Names of additional insured to be put on Insurance Certificate: ftichrnar Builders, Inc. National Penn Bank Upper Allen Township Bumble Bee Hollow Lmt Bumble Bee Hollow General LLC 10. All local, state and federal taxes are inc-uded in the contract amount set forth in the contract. Permits and inspection fee will be paid by the Contractor not the Subcontractors. 17.. Subcontractor agrees that he has read and understand the drawings. All drawings are on file at the P,ichmar Builders Office, 61606 Springford Drive, Harrisburg PA 17111, and copies are available upon request. See Schedule "B." 12. Contractor reserves the right to award the work on a building by building basis, to award rYiultiple subcontractors and to award the work as Contractor deems necessary. 13. Invoices shall be submitted to the Harrisburg Richmar Builders Office at 61606 Sl.aringford Drive, Harrisburg PA 17111. All work must be completed prior to invoicing and submitted two (2) days prior to your assigned invoice dates. Any invoices received late will be moved to the next invoicing date for processing and payment. 14. FIREWALL INTEGRITY: It is intent of the contractor to construct housing which is totally safe and free from any defect which could cause a fire or allow a fire to spread. It shall be responsibility of every subcontractor to take all reasonable, practical, sensible and extra precautions to attain the same objectives. Specific attention is brought to the importance of any drywall/firewall penetrations which shall be sealed according to the best standards of the trade; with the best products, with the best installation standards and in accord with all applicable codes, regulations and manufacturers' sealing product recommendations. All Subcontractors are specifically directed to immediately report any problems whatsoever to the site Construction Manager if such problem relates, in anyway, to the penetration, sealing or safety of a firewall. 15. The work is to include but is not limited to: gas piping, duct work, heating and coolint; units, insulation, programmable then~rostats, low voltage wiring, piping, equipment. and ar. cessories all as required to provide a fully functional and operational heating, air conditioning. and ventilation system for each home. 16. Subcontractor shall furnish and install heating and air conditioning equipment consistir7g of warm air automatic gas heating and electric air conditioning units as manufactured by Gibson. Heating units will have a 92% AFUE efficiency rating. Cooling units will have a seasonal energy efficiency rating of 13.0. Heating and air conditioning components to be furnished in sizes per schedules and details indicated on the plans and in the specifications or as set forth herein. All equipment shall be U.L. approved and shall meet minimum performance rating standards set fort l7 for this type of equipment by ARI, AGA, and ASFIRAE. Compon s sl I be of the ~, Name of Subcontractor: William E Witter __ ~ ~ _ti, C'~~~..% v William EWitter, Ouvnr~r Name of Contractor: Richmar Builders, Inc Date: October 10, 2012 ~~ Marc DeSouz resident. Order No: BB-48 Project: Bumble Bee Hollow SCHEDULE "A° Attached to a certain agreement by and between the undersigned Contractor and the undersigned Subcontractor as of the date and in respect to the project and order number indicated belnw. "package type" furnished ready to install and operate with normal connections of electrical, gas, refrigerant and duct work lines. Units shall be factory wired internally for all controls and protective devices and all gas fired warm air furnaces shall have an electronic ignition pilot. Installation shall be in accordance with the manufacturer's recommendations and per the details shown on the drawings complete with supporting and mounting accessories. Gas piping to each unit shall be furnished and installed under this contract. Subcontractor shall test equipment and add required refrigerant to manufacturer's specifications, for proper operation of equipment. Gas heating is to be activated and controlled by internal wiring and appropriate thermostat to provide temperature control in all respects including manraal changeover for operation of heating or air conditioning. Wall thermostats shall be fully autorY~atic and provide space temperature readings. Thermostats shall provide the option for automatic or manual cantrof of the units from one location. All equipment shall have built-in access panels in appropriate areas to allow servicing and/or removal of all components. All equipnrerrt shall be the product of one franchised distributor or supplier capable of maintaining sufficient stocks of component parts and accessories for proper installation and repair. Equiprrrent manufacturer/distributor shall have technical staff available to the subcontrac tcrr tc~ provide required data and instruction necessary for factory approved installation, start rrlr, testing, and servicing. Combination heating and air concJitioning units shall be equipped witia appropriate racks and/or frames to support disposable type air filters. Filters shall be furnishers for each unit and shall be of standard size readily available from stock without special order. ~if~e subcontractor shall cooperate uvith other contractors for the start up and testing of all mer.hanical equipment. All equipment shall be UL approved and shall meet the r~~ir~irnum performance standards as established by ARI and ASHRAE. Condensing units and concrete or plastic pads far air conditioning shall be supplied, installed, and leveled by subcontractor at the rear portion of the home in a location designated by the General Contractor. Tfre cnruJensing unit shall be placed on a pad of concrete or plastic or fiberglass in a level position Subcontractor shall inspect the ground prior to placing the condensing unit to insure that it is stable and suitable for the intended installation. Subcontractor shall install pre-charged refrigerant lines, coils, relays, condensation lines, and all other items required fi:~r a frmctional system. 17. The subcontractor shall furnish and install a duct system for supply and return of Path conditioned space in accordance with the layout and details shown on the pl~~3ns. Ductwork shall be sheet metal, or 1" fiberglass duct board of the required size and gauges fabricated to shapes required for proper air flow and distribution. Ductwork shall be Fabricated and installed in accordance with standards set iFOrth by the "Sheet Metal and Air Conditioning C:antractors National Association." Duct, of sizes shown on the plans, shalt be installed with proper fittings and accessories to provide an air tt~ht conduit for delivery of air to the required space. Grilles, diffusers and registers of the sizes required shall be installed in each space schedraled to receive conditioned air or proved return air in to the air handler. Ducts shall be properly installed and supported in joist spaces and through floor trusses. Joints and connections of all duel shall be fastened with sheet metal scre~ros and sealed with approved duct tape at the tirnr~ of installation. All ductwork in unconditioned spaces shall be covered with one inch (1")' ti-rick high density fiberglass faced with glass reinfarced aluminum foil and meet the IECC 2006 Coci~~<;. All joints shall be sealed with approved duct tape. The subcontractor shall install flexible corutiectors between equipment and ductwork systems to eliminate vibration and noise transfer tl~rrough the system. Ductwork shall have approved dampers as required installed as required to regulate and balance air flow. Subcontractor shall furnish approved access panels to thc-~ General Contractor for installation by others where required for servicing duct dampers and Iralanring equipment. Ductwork systems shall be balanced at completion of finish worN; in furilding, for uniformity of temperature and proper volume and velocity or air at each out et, terrrrinal and outlet. Adjust dampers and regulators for proper air balance. Subcontractor shall provide and ~~ ~ C~'• ~--- Name o1~Subcontractcr: William E Witter ~V!`~-~ ~"~~>.,°~.~ ~~.t~~ f~~~~~`~`k. : ~'~- WilliarY~ E Witter, Owne~ _.- .. ~- Name of Contractor: Richmar Builders, Inc. Marc DeSouza, Pres~t'eni Date: October 10, 2012 Order No: BB-48 Project: Bumble Bee Hollow SCHEDULE "A" Attached to a certain agreement by and! between the undersigned Contractor and the undersigned Subcontractor as of the date and in respect to the project arrd order number indicated below. install ductwork from bathroom exhaust fans to the exterior walls. Installation shall conform to .all regulatory r_odes. Subcontractor shall furnish and install direct vent, or approved equal, direct vent for the power vented gas fired hot water heater and warm air furnace of each home. Direct vent shall be UL approved and bear labels stating the same. All installations skrall be per manufacturer's recommendation, and care shall be exercised to maintain proper clearance from all adjacent flammable materials. Direct Vent installation shall confirm to all local arul other regulatory codes having jurisdiction over this installation. 18. The subcontractor shall furnish and perform all low voltage wiring for temperature control of the HVAC systems, including connection to the equipment: and accessories. The equipment shall be provided and installed by the subcontractor as required. Disconnects and line voltage will be furnished and installed by others. Among the equipment furnished as part of this contract are: diffusers, fire dampers, T-stat, line set, B-vent, gas hot water heating venting, bath ar~d dryer venting. 19. Shop drawings and catalog cuts shall be submitted by the subcontractor, for approval by the General Contractor for all items of equipment and ductwork systems. Submission must be approved prior to start installation on site. HVAC drawings will be drawn, submit..ted and updated by the subcontractor. 20. Designated personnel of the owner shall receive complete instructions for the olreration and maintenance of all equipment and systems installed by the subcontractor. The subcontractor shall provide qualified personnel to provide the instruction to the owner's personnel and one copy of the printed operating and the instruction manual shall be presented upon completion of each borne. Subcontractor shall perform awalk-thru with eackr homeowner to demonstrate use of the system. 21. The equipment and the complete installation by the subcontractor shall meet or exceed minimum standards as follows: Heating -maintain interior temperature of 70° at 3'0" above floor ,with outside terperature of 0° with 15 mph winds. Cooling -maintain interior temperature of 78° at 5'0" above floor, with outside temperature of 95° with 75 mph winds. All unfinished basements shall receive two (2) feed registers at a location designated by General Contractor. Subcontractor shall provide one year parts and service on all components of the HVAC systems from date of occupancy. 22. Compressors and condensing, units shall have a ten (10) year manufactrarer"'s warranty. Subcontractor shall start up and test equipment to demonstrate the compliance when requested by the General Contractor. Gas fired warm air furnace will be rated at 92% efficiency and central air conditioning will be rated at 13.0 or better SEER Furnace will be by Gibson and cooling unit will be by Gibson. Gas hot water heater B-vent supply is part of this contract. flool<-up shall be by the plumb'~ng contractor. Narne of Subcontractor: William E= Witter Name of Contractor: Richmar Builders, Inc Date: October 10, 2012 ~~... ~ ~~ William E Witter, Owner ~~~ -~ ~~ :.k- Marc DeSouza, Presr t Order No: BB-48 Project: Bumble Bee Hollow SCHEDULE "A° Attached to a certain agreement by and between the undersigned Contractor and the undersigned Subcontractor as of the date and in respect to the project and order number indicated he~low 23. Subcontractor assumes all responsibility for proper sizing of heating and cooling units and warrants that all heating and cooling units are properly sized to the size of the home and has considered the materials of which the home is normally constructed. Thc~ subcontractor warrants that use of the following heating units are correct. SLAB A Unit 40,000 BTU Model: Air Flow 2 Ton 24 The contract value includes passive radon venting. Subcontractor will supply and install and connect a 4" solid pipe, from the lowest concrete slab level to a point above the roof. The work includes all labor and material. The purpose of the work is to provide a passive radon gas vent connected to an under slab radon gas collection system installed by others,. 25. The contract includes gas piping; from the gas meter to the furnace, hot water heater, gas range and gas dryer and fireplace. 26. Contract price as follows: TO k=1NISH A-BUTTERCUP UNIT STARTED BY OTHERS: Lots #35, 38, 39, 40, 42 & 43 UNIT 220010 220020 TYPE ROUGH ~ GAS LINE HEAT & ~ PIPING VENTILA Furnace, ', Stove & Dryer A Unit: N/A ~ N/A 220030 220040 220050 220060 ' UNIT INSTALL INSTALL ~ FINISH RADUN ' TOTAL FURNACE COMPRES GAS Venting; Thru Roof 1368 00 888.00 744.00 5 3,000 00 N/A ~ _ Name of Suhcontractor: William E: Witter Name of Corrtractor: Richmar Builders, Inc Date: October 10, 2012 Order No: BB-48 Project: Bumble Bee Hollow - ~-- -_._-F -- --- - - - --- William E Witter, Owner 1--~~ __--- Marc eS resident: SCHEDULE "B" Attached to a certain agreement by and between the undersigned Contractor and the undersigned Subcontractor as of the date and in respect to the project and order number indicated below. The Undersigned certifies, with the intent that the Contractor and Owner shall rely on its accuracy that the names and address of all persons which will supply services, labor, material or equipment to Subcontractor in the performance of the Subcontractor are listed below. Subcontractor shall provide Contractor with notice immediately in the event of any changes or modifications to the below list. The Undersigned has made the certification on the ~ `J __ day of '~ ~~~..~ - 2012. Name of Subcontractor: William E Witter P ` 1~,~vv~-. ~.~ ~,~. ~ William E Witter, t~)wner Name of Contractor: Richmar E3uilders, Inc. Date: October 10, 2012 ~._ _ 7 __ _ _. ~~!~~~t" - -- Marc DeSouza, Presic~l: Order No: BB-48 Project: Bumble Bee Hollow EXHIBIT :I Attached to a certain agreement by and between the undersigned Contractor and the undersigned Subcontractor as of the date and in respect to the project and order number indicated below. RELEASE OF LIENS AND CLAIMS From: (The person or firm providing release) To: Project: Owner: Contractor: (If same as person or firm providing release, state such) yob No. 1. The undersigned does hereby release all Mechanic's Lien Rights, Miller Act Clainrs (~t0 USCA 270), Stop Notice Orders, Equitable Liens and Labor and Material Bond Rights resulting from labor and/or materials, subcontractor work, equipment or other work, rent, services or suppliers hereto for furnished in and for the construction, design, improvement, alteration, additions to, or repair of, the above-described project. 2. -this release is given for, and in r_onsideration upon receipt of, the undersigned's most recent requisition for services and/or materials provided, bearing a date of____ ___ 3. It is further warranted and represented that all such monies owed to the undersigned, or the undersigned's subcontractor and/or materials suppliers, if applicable, have been paid or that arrangements, satisfactory to the Owner and Contractor, if applicable, have been made for such payments. 4. It is acknowledged that this release is for the benefit of, and may be relied upon, the Owner, the Contractor (to the extent applicable), the construction lender and t:he principal and surety on any labor and material bond for the project. 5. In addition to the foregoing, this instrument shall constitute a partial release of all rights, claims and demands of the undersigned against the Contractor (to the extent applicable) and the Owner arising out of, or pertaining to, the above-referenced project Specifically, all rights and claims on the project are release up to, and including, those that may have accrued through 6. By executing this partial release, the individual executing the same hereby agrees to l,ersonally indemnify and hold the Owner, Contractor (to the extent applicable), construction lender and the principal and surety on any labor and material bonds for the project harmless should any of the information to which he has sworn in the preceding paragraph be false, inclcuiing, but not limited to, the representation that the undersigned has been paid, or that arrangements satisfactory to the Owner and Contractor, if applicable, have been made, for such payments. (Name of Person or Firrn Givin); Release) -__...~ S y'----~-` ~=----- -- - - ~ -- --- - Title:---.=~-`-'-`---`-~-'~~~'- _._. Notary Pub-ic Name of Subcontractor: William E Witter Name of Contractor: Richmar Builders, Inc Date: October 1.0, 2012 l ~ }~~ r. ~ William E Witter, Owner Marc DeSouza, Pros dent Order No: BB-48 Project: Bumble Bee Hollow ADDENDUM #1 Attached to a certain agreement by and between the undersigned Contractor and the undersigned Subcontractor as of the date and in respect to the project and order number indicated below. FINAL RELEASE OF LIENS AND CLAIMS From. (The person or firm providing release) To: Project: Owner: Contractor: (If same as person or firm providing release, state such) Job No. J.. The undersigned does hereby release all Mechanic's Lien Rights, Miller Act Claims (40 USCA 270), Stop Notice Orders, Equitable Liens and Labor and Material Bond Rights resulting from labor and/or materials, subcontractor work, equipment or' other work, rent, services or suppliers hereto for furnished in and for'the construction, design, improvement, alteration, additions to, or repair of, the above-described project. 2 This release is given for, and in consideration upon receipt. of, the undersigned's most recent requisition for services and/or materials provided, bearing a date of___ _ _ ___ 3. !t is further warranted and represented that all such monies owed to the undersi~;necl, or the undersigned's subcontractor and/or materials suppliers, if applicable, have been paid or that arrangements, satisfactory to the Owner and Contractor, if applicable, have been made for such payments. 4. It is acknowledged that this release is for the benefit of, and may be relied upon, the Owner, the Contractor (to the extent applicable), the construction lender and the principal and surety on any labor and material bond for the project. !n addition to the foregoing, this instrument shall constitute a final release of all rights, claims and demands of the undersigned against the Contractor (to the extent applicable) and the Owner arising out of, or pertaining to, the above-referenced project. 6. By executing this final release, i:he individual executing the same hereby agrees to personally indemnify and hold the Owner, Contractor (to the extent applicable), construction lender and the principal and surety on any labor and material bonds for the project harmless should any of the information to which he has sworn in the preceding paragraph be false, inclr.iding, but not limited to, the representation that the undersigned has been paid, or that arrangements satisfactory to the Owner and Contractor, if applicable, have been made, for such payments. Firm: ~;v ~ ~..._~ r ~av~~ ~~ ~1`_;i ~ t~ ~ ~~~_. (Name of Person or Firm Giving Relgqease) n,, By~-------=-=-- Title: `~ w..,~ '. J-~. ~._ Notary Public n {:, Name of Subcontractor: William E Witter .`., ~ `~ ~ - ~ ~~' William E Witter, Owner Name of Contractor: Richmar Builders, Inc. Marc DeSouza, Presi ent: Date: October 10, 2012 Order No: BB-48 Project: Bumble Bee Hollow