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HomeMy WebLinkAbout13-1487 DICKINSON COLLEGE IN THE COURT OF COMMON PLEAS Owner - Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. WAGMAN CONSTRUCTION, INC. K;- rJ rJ - Contractor- Defendant _ STIPULATION AND WAIVER OF LIENS The undersigned contractor, materialman or other entity or person furnishing services, labor or materials, known as, WAGMAN CONSTRUCTION, INC., a Pennsylvania corporation (the "Contractor ") has entered into a written contract dated November 14, 2012, as amended ( "Contract ") with DICKINSON COLLEGE ( "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. § l 20l (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 all 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. 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 kt 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 611 day of 2013. ATTEST: CONTRACTOR: WAGMAN CONSTRUCTION, INC. gy �� Name: M ..��u-N (� C L.,. �� �� d {- - ��r,'t.���'.� Title: Sc v r. r SCHEDULE A ALL THAT CERTAIN tract of land situate, lying and being in the Borough Carlisle, Cumberland County and Commonwealth of Pennsylvania, and being more particularly described as follows: BEGINNING at the point of intersection of the northerly right -of -way line of West High Street and the westerly right -of -way line of Cherry Street, I . Thence along the said northerly right -of -way line of West High Street, North 83° 55' 00" West, a distance of 844.00 feet to a point, said point being the southeasterly corner of lands now or formerly of the Norfolk Southern Railway Company; 2. Thence along the easterly line of said lands now or formerly of the Norfolk Southern Railway Company, North 5° 49'26" East, a distance of 125.08 feet to a point on the southerly right -of -way line of the Norfolk Southern Railway Company; 3. Thence along the said southerly right -of -way line of the Norfolk Southern Railway Company by a curve to the left, said curve have a radius of 2,229.36 feet, an arc distance of 8.09 feet, a chord bearing of North 78° 28'39" East and a chord distance of 8.09 feet to a point; 4. Thence continuing along the said southerly right -of -way line of the Norfolk Southern Railway Company, North 75° 07' 11 " East, a distance of 136.24 feet to a point; 6. Thence still along the said southerly right -of -way line of the Norfolk Southern Railway Company, by a curve to the left, said curve have a radius of 5,302.71 feet., an arc distance of 391.23 feet, a chord bearing of North 73° 00' 22" East and a chord distance of 391.14 feet to a point; 7. Thence still along the said southerly right -of -way line of the Norfolk Southern Railway Company, South 19° 06' 27" East, a distance of 4.94 feet to a point; 8. Thence still along the said southerly right -of -way line of the Norfolk Southern Railway Company, North 70° 00'27" East, a distance of 380.27 feet to a point on the westerly right -of -way line of Cherry Street; 9. Thence along the said westerly right -of -way line of Cherry Street, South 5° 33' 00" West, a distance of 340.69 feet to a point, 10. Thence continuing along the said westerly right -of -way line of Cherry Street, South 5° 20'00" West, a distance of 149.78 feet to the point and place of BEGINNING. CONTAINING 5.873 acres of land, more or less, being Cumberland County Tax Parcel# 05 -20- ] 796- 199EX. SCHEDULE B 929522361 Labor and Material Payment Bond KNOW ALL MEN BY THESE PRESENTS: Wagman Construction, Inc. (Insert name and address or legal title of the Contractor) 231 N. George St., York, PA 17401 Hereinafter called Principal, and Continental Casualty Company 333 S, Wabash Avenue, Chicago, IL 60604 (Legal Title of Surety) Hereinafter called Sureiy, are held and firmly bound unto Dickinson College PO Box 1773, Carlisle, PA 17013 (Insert Name and Address of the Legal Title or Owner) as Obligee, hereinafter called Owner, for the use and benefit of clalmanis as herein below defined, in the amount Eleven Million Six Hundred Twenty Eight Thousand One Hundred Twenty Four Dollars a nd no cents Dollars ($ 11,628,124.00 ) for the payment whereof Principal and (Insert sum equal to at least one half of contract price) Surety bind themselves, their heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. Whereas, Principal has by written agreement dated February 21, 2013 entered into a contract with Owner for Kline Fitness Center Addition and Renovations, 575 West High S Carlisle, PA in accordance with drawings and specifications prepared by Cannon Design (Insert full name and title) which contract is by reference made a part hereof, and is hereinafter referred to as the Contract. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if the Principal shalt promptly make payment of sums due (subject to all setoffs, backcharges and other deductions) each Subcontractor having a direct contact with the Principal (hereinafter "Claimant") for all labor, material and equipment reasonably required for use in the performance of the Contract, then this obligation shall be vold; otherwise It shall remain In full force and effect, subject, however, to the following conditions: 1. The above -named Principal and Surety hereby jointly and severally agree with the Owner that every Claimant who has not been paid in full before the expiration of a period of ninety (90) days after the date on which claimant last performed any of the Contract work may sue on this bond for the use of such Claimant, prosecute the suit to final judgment for such unpaid sums as may be due Claimant for such labor, material and equipment, and have execution thereon. The Owner, Principal or Surety shall not be liable for the payment of any costs or expenses of any such suit 2. No suit or action shall be commenced hereunder by any Claimant: a) Unless Claimant shall have given written notice to all three (3) of the following: The Principal, The Owner and the Surety, within ninety (90) days after such Claimant last performed the work for which said claim is made, stating with substantial accuracy the amount claims, the specific work performed and the date such work was last performed. Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope addressed to the Principal, Owner and Surety, respectively, at any place where an office is regularly maintained for the transition of business, or served in any manner in which initial legal process may be served in the state in which the project is located, save that such service need not be made by a public office. b) After the expiration of one (1) year following the date on which the Subcontractor ceased work on the Contract, it being understood, however, that if any limitation embodied In this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to equal the minimum period of limitation permitted by such law. c) Other than in the Court of Common Pleas for the County of York, Pennsylvania, and not elsewhere 3 The amount of this bond shall be reduced by and to the extent of any payment or payments made in good faith nereunder, inclusive of the payment by Surety of mechanics' liens which may be filed of record against said mprovement, whether or not claim for the amount of such lien be presented under and against this bong, Signed and sealed this 27th day of February, 2013 IN THE PRESENCE OF: Wagman Construction Inc. (Prin pal) (Seal) /(00 even M. n e (Title) Continental C as ua lty C / /�.(Surety) Deborah L. Cottom (Title) Eugene M. Fritz, Attorney -In -Fact POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY -IN-FACT Know All Men By These Presents, That Continental Casualty Company, an Illinois insurance company, National Fire Insurance Company of Hartford, an Illinois insurance company, and American Casualty Company of Reading, Pennsylvania, a Pennsylvania insurance company (herein called "the CNA Companies "), are duly organized and existing insurance companies having their principal offices in the City of Chicago, and State of Illinois, and that they do by virtue of the signatures and seals herein affixed hereby make, constitute and appoint James R Gould, Joseph G Buyakowski, Alson O Wolcott Jr, Eugene M Fritz, Patricia C Robinson, Kathy R Reisinger, Donald R Wert, Deborah L Cottom, Individually of Mechanicsburg, PA, their true and lawful Attorneys) -in -Fact with full power and authority hereby conferred to sign, seal and execute for and on their behalf bonds, undertakings and other obligatory instruments of similar nature - In Unlimited Amounts - and to bind them thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of their insurance companies and all the acts of said Attorney, pursuant to the authority hereby given is hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By -Law and Resolutions, printed on the reverse hereof, duty adopted, as indicated, by the Boards of Directors of the insurance companies. In Witness Whereof, the CNA Companies have caused these presents to be signed by their Senior Vice President and their corporate seals to be hereto affixed on this 15th day of September, 2011. rGASUg C UtSURq Continental Casualty Company �avANV �Pv rl ooh � National Fire Insurance Company of Hartford cppPOgaTt �K�CIIPtIpgTE American Casualty Company of Reading, Pennsylvania JULY 31, v SEAL. r � < E soz 7 1897 HAR a � Stathy Darcy error Vice President State of Illinois, County of Cook, ss: On this 15th day of September, 2011, before me personally came Stathy Darcy to me known, who, being by me duly sworn, did depose and say: that she resides in the City of Glenview, State of Illinois; that she is a Senior Vice President of Continental Casualty Company, an Illinois insurance company, National Fire Insurance Company of Hartford, an Illinois insurance company, and American Casualty Company of Reading, Pennsylvania, a Pennsylvania insurance company described in and which executed the above instrument; that she knows the seals of said insurance companies; that the seals affixed to the said instrument are such corporate seats; that they were so affixed pursuant to authority given by the Boards of Directors of said insurance companies and that she signed her name thereto pursuant to like authority, and acknowledges same to be the act and deed of said insurance companies. EtQA PRICE i �noow�tNao�u�tRra�ovlrna -1 C��, My Commission Expires September 17, 2013 Eliza Price Notary Public CERTIFICATE I, Mary A. Ribikawskis, Assistant Secretary of Continental Casualty Company, an Illinois insurance company, National Fire Insurance Company of Hartford, an Illinois insurance company, and American Casualty Company of Reading, Pennsylvania, a Pennsylvania insurance company do hereby certify that the Power of Attorney herein above set forth is still in force, and further certify that the By -Law and Resolution of the Board of Directors of the insurance companies printed on the ' ve&n is still in�&me n testimc whereof I have heiLeunto subscribed my name and affixed the sea] of the said insurance companies this day of pAStlg4r 0ASUP4 ppy Continental Casualty Company National Fire Insurance Company of Hartford pORPORAtE �NtoaeoeQr� American Casualty Company of Reading, Pennsylvania Jutr 31 , SEAL tsoz 1897 HARI4 b ^' Mary A. R ikaiokis Assistant Secretary Form F6$53- 1/2011 Authorizing By -Laws and Resolutions ADOPTED BY THE BOARD OF DIRECTORS OF CONTINENTAL CASUALTY COMPANY: This Power of Attorney is made and executed pursuant to and by authority of the following By -Law duly adopted by the Board of Directors of the Company. "Article IX— Execution of Documents Section 3. Appointment of Attorney -in -Fact. The Chairman of the Board of Directors, the President or any Executive, Senior or Group Vice President may, from time to time, appoint by written certificates attorneys -in -fact to act in behalf of the Company in the execution of policies of insurance, bonds, undertakings and other obligatory instruments of like nature. Such attorneys -in -fact, subject to the limitations set forth in their respective certificates of authority, shall have full power to bind the Company by their signature and execution of any such instruments and to attach the seal of the Company thererto. The Chairman of the Board of Directors, the President or any Executive, Senior or Group Vice President or the Board of Directors, may, at any time, revoke all power and authority previously given to any attorney -in- fact." This Power of Attorney is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of the Company at it meeting duly called and held on the 17 °i day of February, 1993. "Resolved, that the signature of the President or any Executive, Senior or Group Vice President and the seal of the Company may be affixed by facsimile on any power of attorney granted pursuant to Section 3 of Article IX of the By -Laws, and the signature of the Secretary or an Assistant Secretary and the seal of the Company may be affixed by facsimile to any certificate of any such power and any power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certified by certificate so executed and sealed shall, with respect to any bond or undertaking to which it is attached, continue to be valid and binding on the Company." ADOPTED BY THE BOARD OF DIRECTORS OF AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA: This Power of Attorney is made and executed pursuant to and by authority of the following By -Law duly adopted by the Board of Directors of the Company. "Article VI— Execution of Documents Section 3 Appointment of Attorney -in -Fact. The Chairman of the Board of Directors, the President or any Executive or Senior Vice President may, from time to time, appoint by written certificates attorneys -in -fact to act in behalf of the Company in the execution of policies of insurance, bonds, undertakings and other obligatory instruments of like nature. Such attorneys- in -faet, subject to the limitations set forth in their respective certificates of authority, shall have full power to bind the Company by their signature and execution of any such instruments and to attach the seal of the Company thereto. The Chairman of the Board of Directors, the President or any Executive or Senior Vice President or the Board of Directors may at any time revoke all power and authority previously given to any attorney -in- fact." This Power of Attorney is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of the Company at a meeting duly called and held on the 17' day of February, 1993. "Resolved, that the signature of the President or any Executive, Senior or Group Vice President and the seal of the Company may be affixed by facsimile on any power of attorney granted pursuant to Section 2 of Article VI of the By -Laws, and the signature of the Secretary or an Assistant Secretary and the seal of the Company may be affixed by facsimile to any certificate of any such power and any power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certified by certificate so executed and sealed shall, with respect to any bond or undertaking to which it is attached, continue to be valid and binding on the Company." ADOPTED BY THE BOARD OF DIRECTORS OF NATIONAL FiRE INSURANCE COMPANY OF HARTFORD: This Power of Attorney is made and executed pursuant to and by authority of the following By -Law duly adopted by the Board of Directors of the Company. "Article VII — Execution of Documents Section 3. Appointment of Attorney -in -Fact. The Chairman of the Board of Directors, the President or any Executive or Senior Vice President may, from time to time, appoint by written certificates attorneys -in -fact to act in behalf of the Company in the execution of policies of insurance, bonds, undertakings and other obligatory instruments of like nature. Such attorneys -in -fact, subject to the limitations set forth in their respective certificates of authority shall have full power to bind the Company by their signature and execution of any such instruments and to attach the seal of the Company thereto. The Chairman of the Board of Directors, the President or any Executive, Senior Vice President or the Board of Directors, may, at any time, revoke all power and authority previously given to any attorney -in- fact." This Power of Attorney is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of the Company at a meeting duly called and held on the 17' day of February, 1993. "RESOLVED: That the signature of the President, an Executive Vice President or any Senior or Group Vice President and the seal of the Insurance Company may be affixed by facsimile on any power of attorney granted pursuant to the Resolution adopted by this Board of Directors on February 17, `.993 and the signature of a Secretary or an Assistant Secretary and the seal of the Insurance Company may be affixed by facsimile to any certificate of any such power, and any power or certificate bearing Such facsimile signature and seal shall be valid and binding on the Insurance Company. Any such power so executed and sealed and certified by certificate so executed and sealed, shall with respect to any bond or undertaking to which it is attached, cuntinuc to be valid and binding on the Insurance Company."