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HomeMy WebLinkAbout03-1920EXIII~IT C WAIVER OF LIENS - CONTRACTOR KNOW ALL MEN BY THESE PRESENTS, that contemporaneously with the execution hereof, an agreement for construction services (the "Agreement") has been entered into between EXEL INC., a Massachusetts corporation, with a principal place of business at 570 Polaris Parkway, Westerville, OH 43082 ("Owner"), AND FULMER CONSTRUCTION SERVICES, INC., a Pennsylvania corporation with a principal place of business at 233 Locust Point Road, Mechanicsburg, PA, 17050 ("Contractor"), relating to the interior renovation and construction of existing space in the property located at 260 Salem Church Road, Mechanicsburg, PA. 17050, as said property is more particularly described in Exhibit A-1 attached hereto and made a part hereof (the "Property"); and WHEREAS, in the Agreement, Contractor has covenanted, promised and agreed that no mechanics' or materialmen's lien or claims would be filed or maintained in or on the Property or any part thereof, either by itself or anyone else for or on account of any work, labor or materials furnished or supplied in the performance of the Agreement, or under any supplemental contract or for extra work in the future construction or improvements to the Property pursuant to any contract which may be executed between Owner and Contractor. NOW, THEREFORE, for and in consideration of the execution by the Owner of the Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Contractor, intending to be legally bound, hereby agrees as follows: 1. At the time of and immediately before the execution of the Agreement, and before any authority has been given by Owner to Contractor to commence work on the Property, Contractor does hereby, for Contractor and any and all subcontractors, material suppliers and parties acting or claiming for, through or under Contractor, including, inter alia, any mechanical or electrical engineer, construction engineer or civil engineer, covenant and agree with Owner that no mechanics' liens or claims, notice of liens or notice of intention, shall be filed or maintained by Contractor, or any of them, against the Property, for or on account of any work done or materials furnished under the Agreement or under any supplemental contract, verbal or written, or contract for extra work in or about the planning, designing, construction and completion of the Property, or otherwise. Contractor, for Contractor and any and all subcontractors, material suppliers and parties acting or claiming through or under Contractor, including, inter alia, any mechanical or electrical engineer, construction engineer or civil engineer, hereby expressly waives and relinquishes the right to have, file or maintain any mechanics' liens or claims against the Property. 2. This Waiver waiving the right of lien shall be in an independent covenant of the Contractor 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 planning, designing, construction, construction administration, and completion of the Property. Col./318179v3 16348.00235 C-1 3. In order to give Owner full power and authority to protect the Property 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 the Agreement or this Waiver, Contractor, for itself and all subcontractors, material suppliers and parties acting or claiming for, through or under Contractor, including, inter alia, any mechanical or electrical engineer, construction engineer or civil engineer, hereby irrevocably authorizes and empowers any attorney of any Court of Common Pleas of the Commonwealth of Pennsylvania or any attorney of any court or jurisdiction there or elsewhere, to appear in any court or jurisdiction for Contractor, and mark satisfied of record, at the cost and expense of Contractor, or any such subcontractor, material suppliers or party including, inter alia, any mechanical or electrical engineer, construction engineer or civil engineer, any and all claim or claims, lien or liens filed by or for Contractor, in its or their name against the Property or any part thereof, and, for such act or acts this shall be a good and sufficient warrant and authority, and a reference to the Court, term and number or place in which the Agreement and this Waiver shall have been filed shall be sufficient exhibit of the authority herein contained to warrant such action; and Contractor, for itself and all such parties, does hereby remise, release and quit-claim unto Owner and each of their attorneys any and all manner of errors, defects and imperfections whatsoever in entering such satisfaction or anywise touching or concerning the same. 4. The Contractor shall notify the Owner immediately if the Contractor becomes aware of the existence of any lien upon the Property. The Contractor shall also require each of its subcontractors and suppliers to execute a separate Waiver of Liens in form similar to this Waiver or otherwise acceptable to the Owner which shall relinquish any and all rights to have, file or maintain any mechanics' lien. 5. Should any lien attach to the Property by the Contractor or its subcontractors, suppliers, or anyone directly or indirectly emplOyed by any of them, the Contractor shall cause the immediate removal thereof, and, if approved by the Owner, the Contractor shall remove such lien by obtaining and filing at its own expense a bond satisfactory in form and amount acceptable to the Owner and in accordance with all applicable legal requirements. The Contractor shall obtain and file such a bond within ten (10) days after the date on which such lien attaches to the Property. 6. The Contractor shall indemnify and hold the Owner and its successors and assigns harmless for any loss, claim, damage, or expense, including reasonable attorneys' fees and expense, arising from or related to liens which attach to the Property filed by the Contractor, any subcontractor or supplier of Contractor, or anyone directly or indirectly employed by any of them and by anyone for whose acts any of them may be liable. The Owner shall have the right to retain out of any payment then due or thereafter to become due to the Contractor an amount sufficient to completely reimburse and indemnify the Owner against expenses and losses resulting from such lien. Such expenses and losses shall include any attorneys' fees, surety bond premiums and other costs incurred in attempting to discharge or remove such lien, and any damages or other losses resulting from such lien, all of which the undersigned agrees to pay. If any payment then due to the undersigned by the Owner is not sufficient to reimburse and indemnify the Owner by way of off-set as aforesaid, the undersigned agrees to pay the amount of said difference to the Owner upon demand. Col./318179v3 16348.00235 C-2 7. When the work under the Agreement is completed, the Contractor and its subcontractors shall furnish the Owner a complete release and waiver in a form acceptable to the Owner of all liens arising out of the Agreement. 8. IN THE EVENT ANY MECHANIC'S LIEN OR CLAIM IS FILED IN BREACH OF THIS WAIVER OF LIENS, THE CONTRACTOR HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY ACTION TO STRIKE OR DISCHARGE THE LIEN. 9. The Contractor hereby warrants and represents that at the time of execution hereof, no work of any kind has been done and no materials or supplies of any kind have been furnished in the performance of the Agreement or any supplemental contract for extra work in the erection, construction and completion of the work in connection with the Property. 10. The provisions of this Waiver of Liens are severable. Any provisions of this Waiver of Liens which shall be invalid, void or illegal shall in no way affect, impair or invalidate any other provision hereto, and the remaining provisions shall nevertheless remain in full force and effect. 11. This Waiver of Liens is made and intended to be filed with the County Prothonotary of Cumberland County, Pennsylvania in accordance with the requirements of Section 1402 of the Pennsylvania Mechanics Lien Law of 1963, as amended. 12. It is expressly understood that this Waiver and all of the provisions and remedies herein contained shall be available to and for the protection of Owner and any fee title owner of the Property. 13. In the event Contractor consists of more than one person, firm or corporation, the undertakings hereunder of each of such persons, firms or corporations shall be joint and several, and the word "Contractor" shall mean all or some or any of them. For the purposes of the Agreement and this Waiver, the singular shall be deemed to include the plural, and the neuter shall be deemed to include the masculine and feminine, as the context may require. [remainder of page intentionally left blank] Col./318179v3 16348.00235 C-3 IN WITNESS WHEREOF, hereunto signed and sealed these presents this 2[~ day of April, 2003. FULM~~N~S' Name:~ ~. Title:e~~.ct ~,.~-F Contractor with intent to be legally bound hereby has COMMONWEALTH OF PENNSYLVANIA · COUNTY OF ~ J~z d~a.o ' SS: On this, the~3n° day of April, 2003, before me, the undersigned officer, personally appeared ~,~ ~ g'o/~,,~-~ , who being sworn according to law, deposes and states that he is P, ec.~, o~-,~ 7' of Fulmer Construction Services, Inc. known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument and acknowledged that he/she, being authorized to do so, executed the same for the purpose therein contained, and desires the same to be recorded as such. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public Col./318179v3 16348.00235 C-4 Exhibit "A-I" Legal Description of the Property Col./318179v3 16348.00235 C-5 To be Indexed Against: and WAIVER OF LIENS EXEL INC. As Owner for Index Purposes FULMER CONSTRUCTION SERVICES As Contractor for Index Purposes VS. EXEL INC. As Contractor for Index Purposes and EXEL INC. Property: As Owner for Index Purposes That property known as 260 Salem Church Road and described in the attached Exhibit "A-1", Borough of Hampden, Cumberland County, Pennsylvania Col./318179v3 16348.00235 C-6