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HomeMy WebLinkAbout14-1433 DICKINSON COLLEGE IN THE COURT OF COMMON PLEAS Owner- Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA (-) V. MECHANICS' LIEN = WAGMAN CONSTRUCTION, INC. —_ Contractor- Defendant .`_ STIPULATION AND WAIVER OF LIENS M ' - 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 February 17, 2014, 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. §1201(5)(2006) (collectively "Subcontractor "). The Contractor has, in fact, provided the required payment bond, a copy of which is attached hereto as Schedule "B ". As permitted by 49 P. S. § §1401(b)(2) and 1402(a), and as required by the Contract, Contractor hereby waives all rights of any and 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 v 0 Q/ 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 day of _ , 2014. ATTEST: CONTRACTOR: WAGMAN CONSTRUCTION, INC. id 4 By_ ,jcaIe, /Vorn Name: Ke.vin /y1. 5WK(f- Title: pi de-n + /C.CO 2 Schedule "A" LEGAL DESCRIPTION OF LANDS OF TRUSTEES OF DICKINSON COLLEGE - BIDDLE FIELD - ALL THAT CERTAIN tract of land situate, lying and being in the Borough of Carlisle, Cumberland County and Commonwealth of Pennsylvania, and being more particularly described as follows: BEGINNING at an iron pin located at the northwestern corner of the intersection of Biddle Avenue South and Biddle Avenue East; 1. Thence along the northerly right -of -way line of Biddle Avenue South, North 83 58' 19" West, a distance of 599.79 feet to a point, said point being on the eastern right -of -way line of Belvedere Street; 2. Thence along the said eastern right -of way line of Belvedere Street, North 06° 00' 47" East, a distance of 248.02 feet to a point; 3. Thence continuing along the said eastern right -of way line of Belvedere Street, North 00 47' 19" West, a distance of 551.23 feet to a point, said point being on the southern right -of -way line of West High Street (S.R. 0011); 4. Thence along the said southern right -of -way line of West High Street, South 84° 08'02" East, a distance of 660.21 feet to a point, said point being on the western right -of -way line of Biddle Avenue East; 5. Thence along the said western right -of -way line of Biddle Avenue East, South 05 39'48" West, a distance of 797.24 feet to a point, said point being the PLACE OF BEGINNING. CONTAINING 11.13 acres of land, more or less, being Cumberland County Tax Parcel# 04 -21- 0322 -501. r ® TM eat Document X4312 2010 Payment Bond Bond No.: 58708339 CONTRACTOR: SURETY: (Name, legal status and address) (Name, legal status and principal place Wagman Construction Inc. of business) 231 North George Street Western Surety Company This Document has Important legal York, PA 17401 333 S. Wabash Avenue consequences. Consultation with OWNER: Chicago, IL 60604 an attorney is encouraged with respect to its completion or (Name, legal status and address) modification. Dickinson College PO Box 1773 Any singular reference t0 Carlisle, PA 17013 Contractor, Surety, Owner or other party shall be considered CONSTRUCTION CONTRACT plural where applicable. Date: February 11, 2014 AIA Document A312 -2010 combines two separate bonds, a Amount: Eight Hundred Eight Thousand Seventy Two dollars and zero cents Performance Bond and a Payment Bond, Into one form. Description: Public Restrooms & Bleacher renovations This Is not a single combined (Name and location) Performance and. Payment Bond. Biddle Field, Dickinson College, Carlisle, PA BOND Date: February 11, 2014 (Not earlier than Construction Contract Date) Amount: Eight Hundred Eight Thousand Seventy Two dollars and zero cents Modifications to this Bond: Rl None 0 See Section 18 CONTRACTOR AS PRINCIPAL SURETY Company: ' (Corpor a Seal) Company: (Corporate Seal) Wagman tion Inc. Western Sur Company Signature: i Signature: Name 6 n h'1. t C Name Deborah L. Cottom and Title: Prr P / tit' and Title: Attorney -In -Fact . • . • . i (Arty additional signatures appear on the last page of this Payment Bond) t (FOR INFORMA770NONLY —Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: American Insurance Administrators, Inc. (Architect Engineer or other party:) 4550 Lena Drive Gensler !, ` Mechanicsburg, PA 17055 2020 K Street NW, Suite 200 �' } Washington, DC 20006 ti inlL AIA Document A312T" — 2010. The American Insft to or Architects. osi + +a r t . ,§ ;;The Contractor.and Surety,aointly and severally,,;bmd themselves; their lielrs, executors, admmistrators successo'rss and assigns to the Owner to pay for; Iabor, -materials and equipment furmshed: use in the performance ofttihe; �Construchon Contract, which,�s Incorporated hereinby,..reference, subject to tI�e following terms:. ''._If the Contractor promptly makes payment of all sums dire to Cla mants,'and defends,,tnde2nnifies and holds 1. harmless the Owner from elauns, demands, Izens or,suits by , .any person or entity seeking payment forlabor,, materials or :equipment fum�shed for use 1n fire performance of the Costructton Contract, thetr the Sur „ety and` tle,COntractg "r shall have no oTiliiatlon �anler this;Bond § 3;if therein no Owner Default under the Constn�ction Contract, the Surety's obligation to the Owner =under this Bond shall arise a#ter the Owner has promptly notified the< Contractor and_thd Surety (at the address desczrbed m Sectton 13) of cIauns, clbraands, hens or suits against the Owner; or the 0 �mer's:;properly�by day person br;evf6ly, seeking payment. for. labor, materials or equipment furinished:for.nse' -ia the performance of the Construction ;Contradi' tendered ;defense demands „liens,or spits to thg: Contractor and::the Surety %, k § 4 When the Owner,bas satisfied -4he conditions 1nSeetton 3'.the.Sure shall promptly and at the Stirety'`s :expense defend, andemnl£y and -hol l'harrsiless the Owner:aga nst a d 4v tendered claim, demand, lien ;or suit: §; The Surety's obligations;to a.0 under flan Bond shall arise after the following;' § 5. I Clalmantscwhq do Wiliave a.:d rect confracYw th the Contractor; 9 have furnished a written notice of non =payment to the Contractor, stating w�ih - d” tanfial accuracy tbe. amount clauned and.the nameiof the party to whom the materials were "equipment was, funushed`or supplied ar:for whom the labor was done or p.erforraed, w�tbin-nmety ( Q) days ;after:havmg w, performed labor or last furmsied materials or egmpraeit included m the CIami and; 2 have sent a Glarm to the Safety (at theaddress dz scribed m Section 13) § 5 2 Claimants, who are employed by br;l ave a, direct contract w th'tlie „Contractor,; have sent: a Claun=to the S u ety {at the address,descnbed m Section r3, 6.If a nottce of tton- payment required by'Sectron S'1 1 as g }ven by the.Owner to the;Con'tractor; tiaras sdffigkn#to. satisfy a Claimant's °.obligation fo:fumish a wntten;notice of =non payment under $ecpon 1. § T When a Claimant has sat<sfied the conditions of Secttons 5 1 or 5 3; r�ihtcbever is applicable, the=Surety slialli I ' ,promptly�and at thou urety's:expense take tlie ng'actt. ons: § 7 Send an answer to the Claunantth a copy to the Owner, within sixty (GOj days' after xeceipt of the Claim; >. tating t6e:a ounts`th�t are:und�sputed and tire: bass: for challen�ng y amounts thaf= :are::disputed :and pY Y �P :... t §; 7�2, Pay or arrange fbr amen# of an un uted anountsi._ r § 73 The Surety's failure to;dzscharge its oblgattons :under Sectton T I or Section 7 Zsha11 not'be deemed to constitute awarverhof defenses the Surety or Contractor maylave or aequ>re as to a Claim, except as to undisputed amounts for which fire Surety and Claimant`Ifave reached agreement howeyer, the Surety fails to discharge its, obligationsvnder:Sectton 71 or Section 7 Z :the Sure shall inde the'Claunant;for,the��xe onableattorne s ' a: ri y: : fees :the Claimant incurs:tthereafter torecoverany sums found to4be:dUe and;owmg to fire Clamant § 8'The Surety's total obIrgation shall�not exceed the. amount ofthis $ond, plus.the amomtt of easonable;attorney's __. fees provided under Section3, •and the amount of.this Bondshail be: credxtedfor :anypaymeats macle;'n good bythe Surety; § S Amounts owed by the 0vi!ner to?tlie Contractor ;under`the.Construction ontrac #shall :be. used fbr performance of the Constructton Contract and to satisfy claims, rf aay, under any construction performance bond lay the Contractor furnlslvng and the Owner this,B "ond, they agree tfiat 0 funds fo earned by the Contractor �n fire perrraance'ofthe Construction Contract are dedicated to satisfy obligations "of the Contractor and Surety under.tlis. >; B.on�, subject to theOwner's<;priority;:to use the fiindsfar tlXe; completion of the work:, I.nf„ AIA b - Whoni Al2"! ,2010 The- Ainedcan' Inst3tuie cf.Afchitects:: s r 10 The Surety sball.not be Iiable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for the payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no. obligation to make payments to, or give notice on behalf of� Claimants or otherwise have any obligations to Claimants under this Bond. - § 11 The'Surety hereby waives notice of any change, including ohanges of time, to the Constriction Contract or to, related subcontracts, purchase orders and other obligations.. § 12 No suit or action shall be commenced by a Claimant.undcr this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date (1) on which the Claimant . sent a Claim to the Surety pursuant to Section 5.1.2 or 5.2, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of (1) or (2) fast occurs. If the provisions ofthis Paragraph are void or prohibited by law; the minimum period of.limitation available to sureties as :a defense in the jurisdiction of the suit shall be applicable. § 13 Notice and Claims to - the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. Actual receipt of notice or Claims, however accomplished,.shall be sufficient compliance as ofthe date received. § 14 When this Bond has been famished to comply with a or other legal requirement in the location where the construction was to be.performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming. to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond, 15 Upon request by any person or entity appearing to be a potential beneficiary of this .Bond, the Contractor and Owner shall promptly furnish a copy of this Bond or shall permit a copy to be made. ;§ 16 Definitions § 16.1 Claim. A written_statemenf by the Claimant including at a minim_ um: .1 tht name of the Claimant; .2 the name ofthe person for whom the labor ryas done, or materials or equipment furnished; ,3 a copy of the agreement or purchase order pursuant to which labor, materials or equipment was furnished for use the performance of the Construction Contract; A a brief description of the labor, materials or equipment famished; .5 the date on which the Claimant last performed labor or last furnished materials or equipment'for use in the performance of the .Construction Contract; .6 the total amount earned by the Claimant for labor,, materials or equipment furnished as of the date of the-Claim; 7 the total amount of previotis payments received by the Claimant; and .8 the total. amount due and unpaid to the Claimant for labor, materials or equipment furnished as ofthe date of the Claim. § 16.2 Claimant. An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equipment for use in the performance of the Construction Contract. The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's' lien or similar statute against the real. property upon which the Project is located. The intent of this Bond shall be to includewithout limitation in the terms "labor, materials or equipment" that part of water, gas, :power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance ofthe work of the Contractor and the Contractor's subcontractors, and all other items "for which a.mechanic's lien may be asserted in the jurisdiction where - the labor, materials or equipment were furnished § 163 Construction Contract. The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and all changes made to the agreement and the Contract Documents. InIL AIA Document A312 —2010. The American InsUMe of Architects 7 4 Owner pep p remedied or.waived, to-pay the Contractor as required under the Construction-Contract or o perform and con let or comply with the other material terms ofthe: Construction Contract. §16.6 Contract Documents. All the documents:that comprise the.agreetnent between the Owner -:and .Contractor. 17 If this Bond is 'hall be deemed to b 'sued for an agreement between a Contractor and subcontractor, tbe:#erm Con#actbr in ;this Bond_: e Subcontractor and the term Owner shaff be deemed to be.Contractor. §'18.Mbdifigations to this bond are as follows :. M0=4 Uprpv*d below. or additional si dturess added artiest oilier than those f $n f P,. appearurg on the cover page). CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate,Sea) Company: (Corporate Seal) Signature: Signature: Name and Title Name and Title: Address, Address. CALITION. You,should.sign an original AtA on which this text appears in RED. An orlginal.assures that changes will not be obscured: µ hilt. At A Doeument A312"' 2D7p..The Marken Inagh t@ of Architects. .8 est rn Surety c mpa. n POWER.O,F ATTORNEY API';OTNTING INDIVIDUAL ATTORNEY IN FACT Know A11 Men By These:Presents That WESTERNSURETY COMPANY a 5iiiith Dak to corporation it, !y organized aril existing corporation, having its principal office to the Crty of- -Sioux ):all's, anal State'ofSouth )at ota; and that it'does by . .virtue' of tfie -si - b - re)a' d seal .hereto affixed hereby 'make constiiuie and appo..nt James R Gould, Joseph G BuyakdWAi, Alson O Wolcott Jr Eugene `M Fritz, 'I'at>rIC Y g ah L Cottom, TndividualIy C ob><nsioin Kath l2:.Relsn' er D'onaTd:R Wert :Debor ofTlechanresburg, PA,. u frog and lawfiil,At tom cy(s) rn Fact with foil. power artd'authon Y hereby confetied to sign „seal and =e�tecute= for,arid'on its beh`aIF,. b`orids undtrtakmgs:and other otiltgatory'instruments of similar lur -In Unlimrte'd A Ounts - and':to bind rt;thereby as` fully and to the -wine tastrumenis were signed;i y, a duly_ -autfiorized:offi oFthe corporation; and all.,the;acts oEs'aid Atto'mey ppursuhhVio.the authority hereby rven; ait hereby ratified ."and,confirmed,, This Power of Ahomey is;mO ands: executed; pursuant "to and;by'authonty`of tke By -Law printed oii the reverse;hereof duly adopttid, as rndicatcd,,,iby the shareholders of the,corporation. �n A rlig§ Whereof WESTERN SURETY COMPANY has_ caused these pre sents to bcsigned by its Vtce;l?resrdenf and its to ;lie: •hereto of I.O . Arl this 1-2th,day,ot:Noveiiiber, 2012: ac c WESTERN SU'RET�" COMPANY W r �. ° . aul T BrdN4 Vice President. State of SouthDakota ss County of Mlnnehahas •” On t ij0!th day,of N.. pvember, 2012 before;me persoisatly Caine Paul T. Bruflat, io,me.knowm ;who tieing by me:dulyswom did'-,depose andsay that_ he icsides m'ihe Cr of�Sroux,Falls, State South Da}.oia, that,.he;'is the Vice, Prcm ent of ^WESTERN SURETY COMPANY described m and wfiicfi` tY executed the above mstntment 'that he knows the seal of said corporation Yhot, -the seal affixed to the said instrument `is -such corporate seal lhatit was sti: ... And pursuant to authonty given b y he Board of Directors of said corporation artd, that he signcd':his; name thereto pursuant to like :autiionty, and:. .: at krtowledgessame to.':be;the act-and deedibfsard corporaUbn:: My- cOmmissiOMexpirts J IvtUF1R NoiARY Pti Jai 23 20.:15 s i , SOUTH DAKOTA .. -1t Ntohr Notary Public CERTIFICATE 1, L Nelson AssistantSecretary of WESTERIJ SURETY COMPANY do';hereby ;cernfy that "the Powei: of Altoiney hcreinabove, „set forth is sel 11 force and further certi that the By law of the corporauon prune v re f is still in 'ftirce:. to testimo ";when of'I have hereunto subsenbed my name and affixed the seal of the Bard eorporatoon this da of < ✓ �/� l WEST -ERN SURET_ COIvIPA . 40A4sn�i �*I 1 11—w-1 Fpti ” Foni`Ft2so Y �f' L.,Nelson, Secretary. Authorizing.By -Law ADOPTED BY THE` SHAREHOLDERS OF WESTERN SURETY COMPANY This Power of Attorney is made and executed pursuant to and by authority of the following By -Law duly adopted by the shareholders ofthe Company. Section 7. All bonds, policies, undertakings, .Powers, of Attorney, or other obligations of the corporation shall be executed in the corporate name of the Company by the President; Secretary, and :Assistant Secretary, Treasurer, or any Vice Presidont; or by such other officers as the Board of Directors may authorize. The.President, any Vice President, Secretary, any Assistant. Secretary, or the Treasurer may appoint Attorneys in Fact. or agents who shall have authority to issue bonds, policies, or undertakings in the name of the Company. The corporate seal is not necessary for the validity of any bonds, policies, undertakings, Powers of Attorney or other obligations of the corporation. The signature of any, such of#icerand "the corporate seal may be printed by facsimile. WAGMAM (WCD FEB 11 M 4 F .