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09-5815
e COHEN, SEGLIAS, PALLAS, GREENHALL & FURMAN, P.C. GEORGE E. PALLAS, ESQUIRE LANCE S. FORBES, ESQUIRE Identification Nos. 54408/92380 United Plaza, 19th Floor 30 South 17th Street Philadelphia, PA 19103 (215) 564-1700 Attorneys for Claimant York Excavating Co., Inc. YORK EXCAVATING CO., INC. 3096 East Prospect Road York, PA 17402 Claimant, V. COURT OF COMMON PLEAS CUMBERLAND COUNTY No.: 09 - 5815 kUD U.S. INDUSTRIAL REAL ESTATE INVESTMENT TRUST II 9830 Colonnade Boulevard, Suite 600 San Antonio, Texas 78230-2209 Owner. MECHANIC'S LIEN CLAIM Claimant, York Excavating Co., Inc. ("York"), a Pennsylvania corporation, by and through its attorneys, Cohen, Seglias, Pallas, Greenhall & Furman, P.C., files this Statement of Mechanic's Lien as a subcontractor pursuant to the Pennsylvania Mechanic's Lien Law, 49 P. S. §1101, et seq., against the premises herein described, any and all buildings and structures erected thereupon, and the curtilage appurtenant thereto, for the payment of $343,179.04, due to it as a subcontractor under the contract herein described. The following represents York's Statement of Claim: 1. York is a Pennsylvania corporation with its principal place of business located at 3096 East Prospect Road, York, Pennsylvania 17402. 2. Upon information and belief, U.S. Industrial Real Estate Investment Trust II (the "Owner") is a real estate investment trust organized pursuant to the laws of Texas with its principal place of business located at 9830 Colonnade Boulevard, Suite 600, San Antonio, Texas 78230-2209. See a true and correct copy of the Special Warranty Deed attached hereto, and incorporated herein, as Exhibit "A." The real property subject to this lien is known as the USRE Cumberland Valley Distribution Center, 675 Allen Road, Carlisle, South Middleton Township, Cumberland County, Pennsylvania 17015 (the "Property"). A true and correct copy of the legal description of the Property is attached hereto, and incorporated herein, as Exhibit "B." 4. York, as subcontractor, and R.S. Mowery & Sons, Inc., ("Mowery"), as general contractor, are parties to a written contract (the "Contract") dated May 12, 2008, whereby York agreed to perform certain site development work at the Property in exchange for payment of $3,321,460.00 (the "Project"). A true and correct copy of the Contract is attached hereto, and incorporated herein, as Exhibit "C." For a more detailed identification of York's scope of work on the Project, see Article 8 of the Contract, "The Work of this Subcontract." 5. Pursuant to the Contract, York provided labor and materials necessary for the required site development work on the Project. 6. York completed all of its work on the Project in a professional, workmanlike, and timely manner. 7. All work under the Contract has been completed and all conditions precedent to final payment have been met. York last performed work under the Contract, and completed the work that forms the basis of this Lien Claim, on February 26, 2009. 9. To date, despite submitting proper invoices, and repeated requests and demands for payment, York has not received the Contract balance of $343,179.04 for the work it performed on the Project. 10. Specifically, York has not been paid for the work represented in its Applications for Payment Nos. 10 and 11, dated November 30, 2008 and February 28, 2009 respectively. True and correct copies of York's Applications for Payment Nos. 10 and 11 are attached hereto, and incorporated herein, as Exhibit "D." 11. By filing this claim, York does not waive nor intend to waive, modify, impair or postpone its right to assert any other claim which it may have pursuant to its performance on the Project. 12. This Mechanic's Lien Claim is filed to ensure payment of the contract balance due and owing to York for work performed and material provided to the Project. 13. The Property and improvements subject to this lien claim include all improvements made to the Property including any and all buildings and structures erected thereupon, and the curtilage appurtenant thereto. 14. On or about July 21, 2009, York provided the Owner with formal notice of its intention to file this lien claim and served the notice on the Owner by personal service via process server. A true and correct copy of the formal Notice of Intent to File a Lien Claim, along with the Affidavit of Service of the Notice on the Owner are attached hereto, and incorporated herein, as Exhibit "E." COHEN, SEGLIAS, PALLAS, GREENHALL & FURMAN P.C. GEORGE ALLAS, ESQUIRE 1 ?? LA . FORBES, ESQUIRE Date: cT (. () o eys for York Excavating Co., Inc. VERIFICATION Jeffrey Walker deposes and says that he is a representative of the Claimant herein and that the facts set forth in the foregoing Mechanic's Lien Claim are true and correct to the best of his knowledge, information and belief. This statement is made subject to the penalties of 18 Pa. C.S. §4909 relating to unsworn falsification to authorities. awe Jeffrey Walker, President York Excavating Co., Inc. -?? - 9 Date: !7775779-v1 09423-0003 A 07/14/2009 14:00 6103521767 FA li CEL #40-09-0527-011 PHILLY SUB SEARCHES SPACIAL WARRAMY DEED TOTS INDENTURE made the 18th day of January 2008. BETWEEN US REAL ESTATrR P partnership ("Grantor") of the one Pam and ' ST PAGE a Texas limited WITNESSETH that the said Grantor for and in consideration of the sum of FOURTIMEN MILLION FORTY-THREE THOUSAND FOUR HUNDRED AND N01100 DOLLARS ($14,043,400,00), lawful money of the United States of America, unto them well and truly paid by the said Orantee, at or more the sealing and delivery herrof, the receipt wi cmf is hereby acknowledged, has granted, bargained and sold, released and confirmed, and by these prdse:nts do grant, bargain and sell, release and confirm unto the said Grantee, it successors and assigns, ALL THAT CERTAIN lot or piece of ground more particularly described on E?blblt A attached hereto and made a part hereof. BEING that property which Linwood B. Phillips, Jr. and Robert 114. Frey, by Deed dated August 20, 2004, and recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book 264, Page 4466, granted and conveyed into ()ranlor, in fee. UNDER AND SUBJECT, nevertheless, to the permitted exceptions as described on Exhibit "B" attached hereto and made a part hereof. TOGETHLR with all and singular the buildings and improvements, ways, s=ts, alleys, driveways, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances, whatsoever unto the hereby granted real property belonging, or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof, and all the estate, risfit, title, interest, property, claim and demand whatsoever of them, the said Orantor, as well at low as in equity, of, in, and to the same. TO HAVE AND TO HOLD the said lot or piece of ground above described, with the messuage or tenement thereon erected, hereditarneuts and premises hereby granted, or oientiorkd amd intended and intended so to be, with the appurtenances. Unto the said Grantee, its successors and assigns, to and for the only property use and behoof of the said Gmtee, its successors and assigns forever. UNDER AND SIl)`c iECT, as aforesaid. AND the said Grantors, for themselves, their heirs, executors and administrators, do covenant, promise and agree, to and with the said grantee, its suers and assigns, by these -presents, that they, the said Grantors and their firs, all and singular the heroditaments and premises hereby granted or mentioned and intended so to be, with the appurtenances, unto the said Grantee, its successors and assigns, against lawfully claiming or to claim the same or any part thereof, by, from or under Grantor; 0211 and will, subject as aforesaid, WARRANT AND FOREVER DEFEND. 03/31 01/1412006 12'31!S4 PM CUMBEALAND COUM lnst# 200802388 - Page 7 of 7 07/14/2009 14:00 6103521767 PHILLY SUB SEARCHES PAGE 04/31 IN WITNMS WIMEOF, the party of the first Pt hereunto have set its hands and seals, the day and ym first above vq itten. 9$ REAL ESTATE LIl4 MD PAETNERSMp, a Texas Trmited partnersbip By: USAA REAL ESTATE COMPANY, ZDe eorporati WX Narue' _ Title: QRUCE C. PEiF?SEN Senior Marfsiptng Dk9otvr SS Grantee's address; US Industrial RZIT =I 9830 Colonnade, 9u4te 600 San Antonio, TX 78230 STATE OF TEXAS COUNTY OF BEXAR On this the day of 200 befor?+e me, a Notary Public in and for the State pAd County aforesaid, tite undersigned _-Zua,ar h?gl?c.. , l emu- ` of USAA Real Estate Company, General Parmer of US Real Estate Limited ParrnershV and on irs behalf, who is kmawn CO me (satisfactorily proven) to be the person, whose name is subsc6bed to the within instrumenr- and acknowledged that he executed the same for the purposes therein contained. R WITNESS V4EMROF, I have btxeunto set my hand and official seal. Public for the State of Texas pt;BGi $!' my GoMmission 071102008 12;31:54 PM CUMBERtgntl COUNTY ?M t# 200802388 - Psge 2 of 7 87/14/2009 14:00 6103521767 PHILLY SUB SEARCHES PAGE 05/31 EMMA Legal Desctfp on 07/14/2009 12:71:34 PM CUMBERLAND COUNTY Inst.* 200802388 • Page 3 Of 7 07/14/2009 14:00 6103521767 PHILLY SUB SEARCHES PAGE: 06/31 Parcei I Leal Dewriptic a ALL THATCRATAlNplece, parcel, or tract OflAnd boingsituated in the Township of South Middleton Township, County of Cumbeepr??lland, State OfPenAVIVitaia, being Lot I as shown on Final 05/9104, re reoaPlan of tded in Phillips and Fry Tract cordge3 0Mce of Cumberland County in Plan Book 89 p ted ga 23, b0eingamo t fudlly bounded and described as folioom to wit: BEGU4"G at ain't on the eastem right of way line of'Allen Road, said point being desarlbod in the deed for Tax Parcelff 40-U-0527-01 1, thtmce north 27 degrmor, S9 minutes, 49 seconds west atong the approximate centerline of Allen Road a distance of 31.75 feet. Th nce north 28 degrees, 43 minutes, 44 seconds west a diatutceof 109.07 feet. Thence north 28 degrees, 19 minutes, 39 seconds west a distance of 109.00 feet. Thence north 27 degrees, $9 minutes, 15 seconds west a distaucc of 190.82 feet to a corimte monument, sct, this being the Point of Beginning. Frothsaid point, the property is enctosedbythtaf+ollowin;20courses and distances, northwesterly along the east rightof-way of Allen Roadfhctbilowtngtwelveoourses:north 27 degrees, 59 minutes, 15 seconds west a distance of 26,99 fact to a concreto munumcntr set (ti.) north 27 degrees, 38 minutes, 41 seconds west a distance of 218.01 to a concrete monument, mn, (iii.) north 27 d cs, 49 minutes, 40 seconds west a distance of 217.80 feet to a concrete monument, set, (iv.) north 25 degrees, 56 minutes, 09 seconds west a distance of 71.98 feet to a concrete monument, set, (v.) along a curve to the right having a chord beating of north I I degrees, 54 minutes, 14 secorids west, a chord distance of 104.26 feet, a radius of 215.00 feet, an are tengt17 of 105.31 feet and a Delta cif 28 degrees, 03 minutes, 51 socoitds to a concrete momnnent, set, (vi.) north 02 degrees, 07 minutes, 40 seconds east a distance of 628.89 feet to a concrete nlonuIIlent, set (vii.) north 02 dflgroes, 01 minutes, 10 seconds east a distance of 254,62 feet to a concrete monument, set, (viii.) north 01 degrees, 43 minutes, 54 seconds cast a distance of 245.89 feet to a ooncrote monument, set (lx) north 02 degrees, 01 minutes, 10 stoonds west a distance of 457.05 feet to a concrete monument, set (x) along a curve to the left leaving a chord bang of north 05 degrees, 04 minutes, 38 seconds west, a chord distance of 222.38 feet, a radius of 900.00 feet, an arc length of 222.95 feet and a Delta of-14 degrease I 1 minutes, 36 seconds to a coucrzte m m mord any (xL) n, 612 degrees, 10 minutes, 26 seconds wag a drs;a> of471.69 foot to a concrete monument, set (XII.. north I 1 degrees. 59 minutes, So seconds west a distan04 of 377,47 feet to a connate tnonumem set, t south 53 dogtces,33 nmitnutes,07 seconds east a distance of 1,49$.82 fact along the lands now or fortmerly of'A1Icn. Disp-ibutiou, to an iron ppin, set, Thence south 53 degrees, 33 minutes, 02 seconds east a distance of 9 7 3.6 2 f e e t a I o n g t h e t s n d s n a w o r to r m e r 1 y c f Pm og%-Alaequade Pennsylvania Trust, to an iron pin, set; Theriot southwesterly the following 6 courses along the common Tine with Lot 2 and Lot 3: (i) south 47 degrees, 00 minutes, 09 seconds west a distance of 443,20 foot to an iron pin, set, (ii.) along it curve to the left having A Chord bearing of south 42 degrees, 23 Minutes, 53 seconds west, a chord distance of 852.68 feet, a radius of 5,311.00 feet, an are length of 853.59 feet and it Delta of -9 degrees, 12 minutes, 31 seoonds to an iron pin, set, (iii.) south 37 degrees, 47 Minutes, 37 seconds west a distance of 23333 feet to an iron pia, set, (iv,) along a curve to the right having a chord bearing of south 39 degeca, 03 minutes, 32 secondswast, a chord distance of 121.46 feat, a radius of 2,750 feet, an art: length of 121,47 feet and is Delta of 02 degrees, 31 minutes, 51 seconds to an iron in, net, {v.} south 40 degrees, 19 minatcs, 28 seconds west is distance of 202.76 feat to an iron pin, act. (vipj south 40 degrees, 33 minutes, 0711412009 7237;54 PrA CUMBERLAND COUNTY in6L# 200802389 - Psge 4 0 7 &17/14/2009 14:00 6103521767 PHILLY SUB SEARCHES PAGE 07/31 37 seconds westa distance of So I,86 feet, returni»g to a concrete monument, set, the said point of Beginning. Beingr of the same premises which Belly 1W ration by Deed dated December 20, 1988 and recorded on the ?, ,page 62 i, granted and conveyed In or the Linwood B Ph4 ips.lr, and Robrtre C U* 0 fie m?land in Book S-33 Parcel 2 ALL THAT CERTAIN piece, parcel, or tract Of land being situated io the TownShip of South Middleton Tv lship, County of Cumberland, State ofPesrnsylvanie, WAS, the land adjacent to Lot I within the legal and rNtIlred R/W of Allen Road as shown on the attached Exhibit A and also shown on the l; al Subdivision plan of Phillips and Prey Tract prepared by Bvans Engineering, Ina., dated 01/23/04, last revised 05/19/04, recorded in the Recorder's Office of Cumberland County in Plan Book 89 page 23, being more fully bounded and described as fal lows to wit; ZF,0rb NING at a?o' o e eastern right of way line of Allen Road, ttJd p .tl ilib&te flisi dec7`f + Tram said point, the property is enclosed by the following 17 courses and distances, South 53 dagr=% 33.111 imitu, 07 seconds Fast for a distencc of 12.99 feet along lands now or forMeriy of Alien Distt ibtttion, to a Concrete monument, 8t t, tl1o' w, along the east required rightrof-way line of Alien Road the following 12 courses, (i) South 1I dcgrm, 59 minutes $0 seconds Easta distance, of 377.47 fact to a concrete monument, set (ii) South 12 dcgreos, 10 minutes, 26 seconds East a distance of 471.69 fen to a concrete monument, sot (iii) along a curve to the right having a chord bearing of South 06 degrees, 04 minutes 3 8 seconds East, a chord distance of 2223 8 feet, a radius of 900,00 feat, an are length of 222.95 feet and a Delta of 14 dcpas, 11 minutes 36 seconds to a eonorete monument, set (J71) South 02 degrees, 01 minatc, 10 seconds East a distance of 457.05 feet to a ower-ete rt nument, set (v) South 01 degrees, 43 minutes, 54 seconds West a distance of 245.99 &Let to a concrete nxonument, sat (vi) South 02 degrees, 01 minutes, 10 seconds West a distance of 254.62 feet to a corhareto monument, sot, (vil) South M degreea, 07 minutes, 40 seconds West a distance of 628.89 feet to a t.=rete monument, sat (viii) along s curve to the left having a chord bearing of South 11 degrees, 54 minutes, 14 seconds East a chord distance of 10436 Beet; a radius of 215.00 feet, an arc length of 105,31 feet and a Delta of 28 degrees, 03 minuses, 49 seconds to a concrete monument, see, (ix) South 25 dew, 56 minut", 09 seconds East a distance of 7199 feet to a conoreft monument, set, (x) South 27 degrees, 49 ruinuttns 40 seconds East a distnucc of 217.80 feet to a concrete manuntcat, set (xi) South 27 degrees, 36 rninuime, 41 seconds East a distance Of 21$,01 fret to a concrete monument, set, (XID South 27 degrees, $9 m itluGes, 15 amends East a diomnee of 26.99 feet to a concrete monument; so, Thence South 40 degrees, 33-minutes, 37 seconds West a distance of 26.17 fect to approximate center of Allen Road. Thence ncirtherly tho foilowing 3 caumas akutg Alien Road (1) North 27 degrees, 46 minutes, 27 second: West a distance of 627.35 feet to a point (ii) North 02 degrees, 41 minutes 33 seconds as? a distance of 1,760.55 That to a point (iii) North 1 I degrees, 48 minutes, 27 seconds West a distance of 94%10 Bret toMe apoint, the said Point of Beginning. Being satme date of tthhe e oaf tthegRecorrdderr of ])oQ in and f,6r the Cdatrd of Cumberlafii in nok 33 page 521, grantod and conveyed in Linwood 8, Phillips, Jr. and Robert M.1'ty, in foe, Parcel Mrrax ID Number: 40-09-0527-011 07/1412009 14:31:54 PM CUMBERLAND COUNN Ineta 2008Oaa89 - pagB 5 of 7 97/14/2009 14:00 6103521767 PHILLY SUB SEARCHES ' pe?tittvd Y'%?rcepttflns 1, 2008 Real Estate Taxes payable but not yet due, 2. Exceptti subjng and reserving Omt Portion of the property 1Yin8 In and along the roadbed(s) ec to Public and privata rieft the.,,, I Subject to notes, conditions, setback linen eight of ways, and all other matters as set forth on P'inatt 4. St>bdivisiau I'1an rECOrdcd iDPfat Book 89, Page 23. Right of early to United Telephone Comp&,y recorded is Rook 209 Page 453 i4lisc. Book 131, page 210 and , . 5 S++bjcot to Notice of Condemmtion, by the Commonwealth of Ponnsyivania, Depat-ftnent ofTransportation dated Novomber 8, 2007 and recorded November 9, 2007 as Instrument Number 200742416, PAGE 08/31 h QW144000 12-51:5e PAT CUMBBZtO?NO CQUNIY Mscayp000264 - pe9e 0 or 7 r I I 07/14/2009 14:00 6103521767 I ' F 0RXRT F. ZMG ' ECORDER OF DF...?DS MMRRLAM 'COUNTY OURMOUSE SQLt'? AR LISA PA 17013 717-24o 070 IRstrmsmt NMMJMr .200802.988 1 Recorded Ob LW/2008 At;403:56 PM * Inst =umt Type - DAD .bwMeNumber -130M User ID -JK #C*rantar- US RTA L FBTATE L P * Gnnt"- Us MAMMAL I MT U i Cuff0 ler - STMART IMX GUAR41V'.fX (X) * im saw ssos cur gsao??sa.c an= q sRtT? sAx $0'.50 STAN= JCBJ?.*Cggg ? $10.00 Jt Mcz ntcaaxD=G M2ES - SIS.80 rtzo icm or nwp$ AMMsLIM =$I= #lt. so cous= tA=v?s rM M 92 - 00 >C3. q0 SOME X=WATCW g70,217.0p scaon DtsTRxCT SOME DEtWLETCH $70r2?7.00 '1'OOPltB?IP TONAL PUD SsBt{, 910 . bQ PHILLY SUB SEARCHES *'Tow rages - 7 Ccr"ficatfoll Page DO NOT DETAca T.hjs ,Page is now part of this IegW document. .I Certify this to be r+ orded io Cumberland County FA; in no it, PAGE 09/31 i e71A14* 09 12:31:54 PM 0A48GRaNb COUNTY In"m 20MM90 - Page 7 of 7 I-) 4-D4 ,07/14/2009 14:00 6103521767 PHILLY SUB SEARCHES PAGE: 06/31 Parcel I Lew Dewriptian ALL T14ATCER,TAIN place, parcel, or tract of land being situated in the Township of South Middleton Township, County of Cumberland, State of Pennsylvania, being Lot I as shown on Final Subdivision Plant of Phillips and Foy Tract prOPAred by Evans Engineering, Ino., dated 01/23/04, last revised 05/19104, recorded in the Recorder's Office of Cumberland CDunit in Plan Book 89 page 23, being more fully bounded and described as follows to wit: BEGINNING at a ppoint On the easten7 right of way line ofA!!en Read, said point being described in the decd for Tax Parcel# 40-09-0527-011, thance north 27 dcglrccs, 59 minutes, 49 seconds west along the approximate centerline of Allen Road a distance of31,75 feet. Thence north 28 degrees, 43 minutco, 44 secondswesta distanccoi: 109.07 feet. Thanc,, north 28 degrees, 19 minutes, 39 seconds westadiatancoof 109.00 feet. Thenoo north 27 degrees, $9 minutes, 15 seconds west a distance of 190.82 feet to a concrete monumon; set, this being the Point of Beginning. From said point, the property is erzcbaed byftfollowirj; 2D courses and distances, northwesterly along the east right-of-wityof Allan Road fhotbllowutgtwcIveoourses: (i.) north 27 degrees, 59 minutes, 15 seconds west a distance of 26.99 fhat to a concrete monuatont: set (11.) north 27 degrees, 38 minutes, 41 seconds west a distance of 218.01 to a concrete monument, set, (tin) north 27 degrees, 49 minutes, 40 seconds west a distance of 217.80 feet to a ooncrete monument, set, (iv.) north 25 degrees, 56 minutes, 09 seconds west a distance of 71.98 feet to a cencrom monument, sot, (v.) along a curve to the right having a chord bearing of north 1I degrees, 54 minutes, 14 sec"ds weal, a chord distuncc of 104.26 fact, a radius of 2 15.00 Meet, an arc longtls of 105.31 feet and a Delta a28 degrees, 03 minutes, 61 seconds to a Concrete monument; set, (A.) north 02 degrees, 07 minutes, 40 seconds east a distance of 628.89 feet to a concrete monumont, set (vii.) north 02 degrees, 01 minutes, 10 seconds cast a distance of 254.62 feet to a concrete monument, sox, (viii,) north 01 degrees, 43 tninutes, 54 seconds oast a distance of 245.89 feet to a ooncrote monument, set (nix) north 02 degrees, 01 miavtes, 10 seconds west a distance of 457.05 feet to a concrete monnraent, set (x) along a carve to the toy having a chord boadn of north 05 degrees, 04 minutes, 38 seconds wost, a chord distance of 2.2.2.38 foes, a radius of 90.00 feet, an are length of 222.95 feet and a Arita of -14 degrees? I 1 mimdea, 36 swontds to a concrete momment; set, (7Ci north 12 degrees, 10 minutes, 26 seconds west a d,st"oe of 471.69 foot to a concrete monumam, set (xi i.} north I 1 degrees, 59 minutes, 30 seconds west a distance of 377,47 feet to a conamtemonuram; Bet, -nernot south5 degroes,33 n4nuta,073eeon4s east a distance of 1,495.82 feet alan the lands now or formerly of Allen Distribution, to on iron pin, set, Tha cesouth 53 degrees, 33 minuses, 02 seconds east a distance of 973.62 fact along the l a n d s now or formerly of ?roLogia•Maoquadc Penngylvanla Trust, to an iron pin, set, Thence southwesterly life fotlowiog 6 courses aloA the comman fine with Lot 2 end Lot 3: (i) south 47 degrees, 00 minutes, 08 sn:n:onda west a distance of 44 20 foot to an iron pin, set, (ii,) along a curve ip the IeSt having $ Chord bearingg of south 42 degrees; 23 astnutes, 53 seconds west, a chord distance of 85x.68 feet, a radios of 5,31 i.ryp fact, an arc ]en of 853.59 Peat and it Delta of -9 degrees, 12 minutes, 3 i seconds ns ssn iro n pin, sox, (iii.) south?7 dagt?os, 47 minutes, 37 seconds west a distance of 233,33 fact to an iron pin, set, (iv, along a curvy to the right having a chord bearing of south 39 degrees, 03 minutes, 32 seconds west, a oh distance of 121.46 feet, a radius of 2,750 feet, as era length of ]Z1,47 feet and a 13blta of 02 degrees, 3I minutes, S 1 seconds to an iron Qln, set, (v.) south 40 derrGOS, 19 minutes, 28 seconds west a distance of 202.76 fact to an iron pin, act. (vi-3 south 40 degrees, 33 minutes, 07/1412009 1231:54 PM CUMBERLAND COUNTY h+sL# 200802385 - P" 4 of 7 07/14/2009 14:00 6103521767 PHILLY SUB SEARCHES PAGE 07/31 37 seconds westa distance of S01,86 feet, returning to A concrete monument, set, the said point of Beginning. Being of the same premise, which Bdlluu??rpor?tiott on the g by Deed dated the C oU ty O C fa0n'd in gook r6c: Vrd same ranted and conveyed i?l erarvood D PhiUi , and ? Ps, r Robert M. Fry, in fee, ,Page 621, Parcel 2 ALL THAT CERTAIN piece, parcel, or tract or lend bring sihtsted in the Township of South Middletan Township. County of Cumberland, Slate of Perunsylvania, being the land adjacent to Lot I within the lagal and required RM of AHen Road as shown on the attached Exhibit A and also shown on the Fjoal Subdivision Plan of Phillips and Prey Tract proparod by Evans Engineering, Inc., dated 01123/04, last revised 05119104, rocorded in the Recorder's Of5ce of Cumberland County in Plan Book 89 page 23, being more fully bounded and described as follows to wit: 83;131NNIlVG at a .o" a eastern right of way line of Alien Road, VAMWIM bi?atil #?.` 'From said point, the property is enclosed by the following l7 courses and distances, South 53 deer oes, 33 mloutes, 07 seconds Twat for a distance of 12.99 feet Along Iands now or farrnarly of Allen Distribution, to a concrete monunren4 sat, 6= =, along the east required rlgh?of way line of Al fen moad the following 12 courses. (i) 9oath 11 dcgrt *, 59 minutes 50 seconds East a distance of 377.47 feet to a concrete monument, act (ii) South 12 dcgreos, 10 minutes, 26 seconds East a distance of 471.69 feel to a concrete monument, set (iii) along a curve to the right having a chard bearing of South 03 degrees, 04 mintites 3 S seconds )cast; a chord distance of 22238 feet, a radius of 900,p0 hs4 an arc length of 222.95 ferst and a Delta of 14 degrees, J I minutes 36 seconds to a conorete menurr cnr set (IV) South 92 degrees, 01 minute, 10 seconds Fast a distance of 457.05 feet to a ooaerete mortumonk set (v) South 01 dunces, 43 minutes, 54 seconds Weft a d6itance of 245.89 feet to a concrete monument, sot K South 02 degrees, 01 minutes, 10 seconds West a distance of 254.62 foot to a concrete monument, sot, (vii) South M degrees, 07 minutes, 40 seconds West 4 distance of 628.89 feet to a witcrete monument, set (viii) along a curve to the left having a chord bearing of South 1 I degrees, S4 minutes, 14 seconds East a chord distance of 10416 feet, a Mdlus of 215.00 fees, an arc length of 105,31 feet and a Delta of 28 degrees, 03 minutes, 49 seconds to a concrete monument, set, (ix) South 2S deg , 56 minutes, 09 seconds East a distance of 7198 feet to a concrete monument, set, (x) South 27 dogrces, 49 minutes, 40 seconds East a distance of 217.80 feet to a concrete monument; set (A) South 27 degrees, 38 minutes, 41 seconds East a distance of 218,01 fat to a concrete monument, set, (Xil) South 27 degrees, $9 minutes, IS seconds Faist a distance of 26.99 feet to a concrete monument, net, Thence South 40 degrees, 31minv es, 37 seconds West a disbnoe of 26.17 feet to approximate center of Allen ]toad. Thence ntirtherly the following 3 courses skeg Allem Road (1) North 27 degrees, 46 minutcs, 27 seconds West a distance o[627.35 feet to a point (ii) Nord! 02 degrees, 41 minutes 33 seconds Easr a distance of 1,76045 feet to a point (iii) North I 1 degrees, 48 minutes, 27 seconds West a distance of 947,10 fon to a point, the said Point of D oginning. 13cing part of the same promises which Ulu Corporation by Deed dated December 20,J 988 and recorded on the same date m the office of the Recorder. ofDoed in and fir the County, of Cumberlan in Nok S-33, page 621, grantod and conveyed in Linwood 8, Phillips; Jr. and Robert M. Fry, in fee, Parcel ID/Tax ID Number: 40-09-0527-011 071141200e tz;31;54 RM CUMSKRLAM COUNTY InGt# 200502388 - Page 5 of 7 C T H E A M E R I C A N I N S T I T U T E O F A R C H I T E C T IS Job No. 4434 Phase No. 2001 AIA Docmwnt,4401 Standard (Form of Agreement Between Contractor and Subcontractor 1987 EDITION THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION, This document has been approved and endorsed by the American subcontractors Association and the,Associated Specialty Contractors, Inc. AGREEMENT made as of the twelfth day of Two Thousand Eight BETWEEN the Contractor: R. S. MOWERY A SONS, INC. 1000 Bent Creek Boulevard Mechanicsburg, PA 17050 and the Subcontractor: YORK EXCAVATING CO., INC. 3096 East Prospect Road York, PA 17402 May in the year of PH: 717.506.1D00 / FAX: 717.506.1010 PH: 717.755.0607 / FAX: 717.755.0063 The Contractor has made a contract for construction dated October 1, 2007 with The Owner: US REAL ESTATE LIMITED PARTNERSHIP 9830 Colonnade: Boulevard - Suite 600 San Antonio, TX 78230-2239 For the following Project: USRE CUMBERLAND VALLEY DISTRIBUTION CENTER 675 Allen Road Carlisle, PA 17015 which Contract is hereinafter referred to as the Prime Contract and which provides for the filmishing of labor, materials, equipment and services in connection with the construction of the Project. A copy of the Prime Contract, consisting of the Agreement Between Owner and Contractor (from which compensation amounts may be deleted) and the other Contract Documents enumerated therein has been made available to the subcontractor, The Architect for the Project is: HERBERT G. WERTZ, JR., ARCHITECT 618 North Front Street Normleysburg, PA 17043 The Contractor and the Subcontractor agree as set forth below. Copyright 1915, 1925, 1937, 1951, 1958, 1961., 1963, 1966, 1967, 1972, 1978, ©1987 by the American institute of Architects, 1735 New York Avenue, N.W., Washington, D,C, 20006 Itcproducdon of the naterial herein or substantial quotation of its provisions without written permission or the AIA violates the copyright taws of the United States and will be subject to legal prosecution. AIA DOCUMENT A401 - CONTRACTOR-SUBCONTRACTOR AGREEMENT - TWELFTH EDMON - AIA& -01087 - THE AMERICAN INSTrrUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 A401-1987 1 TERMS AND CONDITIONS OF AGREEMENT BETWEEN CONTRACTOR AND SUBCONTRACTOR ARTICLE 1 THE SUBCONTRACT DOCUMENTS 1.1. The Subcontract Documents consist of (1) this Agree- ment; (2) the Prime Contract, consisting of the Agreement between the Owner and Contractor and the other Contract Documents enumerated therein, including Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda Issued prior to execution of the Agreement between the Owner and Contractor and Modifi-, cations issued subsequent to the execution of the Agreement between the Owner and Contractor, whether before or after the execution of this Agreement, and other Contract Docu- ments, if any, listed In the Owner-Contractor Agreement; (3) other documents listed in Article 16 of this Agreement; and (4) Modifications to this Subcontract issued after execution of this Agreement. These form the Subcontract, and are as fully a part of the Subcontract as if attached to this Agreement or repeated herein. The Subcontract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Subcontract Documents, ocher than Modifications issued subsequent to the execution of this Agreement, appears in Article 16. 1.2 The Subcontractor shall be famished. copies of the Sub- contract Documents upon request, but the Contractor may charge the Subcontractor for the cost of reproduction, ARTICLE 2 MUTUAL RIGHTS AND RESPONSIBILITIES 2.1 The Contractor and Subcontractor shall be mutually bound by the terns of this Agreement and, to the extent that provisions of the Prime Contract apply to the Work of the Sub- contractor, the Contractor shall assume toward the Subcontrac- tor all obligations and responsibilities that the Owner, under the Prime Contract, assumes toward the Contractor, and the Subcontractor shall assume toward the Contractor all obbga- tions and responsibilities which the Contractor; under the Prime Contract, assumes toward the Owner and the Architect. The Contractor shall have the benefit of all rights, remedies and redress against the Subcontractor which the Owner, under the Prime Contract, has against the Contractor, and the Subcontrac- tor shall have the benefit of all rights, remedies and redress against the Contractor which the Contractor, under the Prime Contract, has against the Owner, insofar as applicable to this Subcontract. Where a provision of the Prime. Contract is incon- sistent with a provision of this Agreement, this Agreement shall govern. 2.2 The Contractor may require the Subcontractor to enter into agreements with Sub-subcontractors performing portions of the Work of this Subcontract by which the Subcontractor and the Sub-subcontractor are mutually bound, to the extent of the Work to be performed by the Sub-subcontractor, assuming toward each other all obligations and responsibilities which the Contractor and Subcontractor assume toward each other and having the benefit of all rights, remedies and redress each against the other which the Contractor and Subcontractor have by virtue of the provisions of this Agreement. ARTICLE 3 CONTRACTOR 3.1 SERVICES PROVIDED BY THE CONTRACTOR 3.1.1 The Contractor shall cooperate with the Subcontractor in scheduling and performing the Contractor's Work to avoid conflicts or interference in the Subcontractor's Work and shall expedite written responses to submittals made by the Subcon- tractor in accordance with Paragraph 4.1 and Article 5. As soon as practicable after execution. of this Agreement, the Contractor shall provide the Subcontractor copies of the Contractor's con- struction schedule and schedule of submittals, together with such additional scheduling details as will enable the Subcontrac- tor to plan and perform the Subcontractor's Work properly. The Subcontractor shall be notified promptly of subsequent changes in the construction and submittal- schedules and addi- clonal scheduling details. 3.1.2 The Contractor shall provide suitable areas for storage of the Subcontractor's materials and equipment during the course of the Work. Additional costs to the Subcontractor resulting from relocation of such facilities at the direction of the Contrac- tor, except as previously agreed upon, shall be reimbursed by the Contractor. 3.1.3 Except as provided in Article 14, the Contractor's equip- ment will be available to the Subcontractor only at the Contrac- tor's discretion and on mutually satisfactory terms. 3.2 COMMUNICATIONS 3.2.1 The Contractor shall promptly make available to the Subcontractor Information which affects this Subcontract and which becomes available to the Contractor subsequent to execution of this Subcontract. 3.2.2 The Contractor shall not give instructions or orders directly to employees or workmen of the Subcontractor, except to persons designated aS authorized representatives of the Sub- contractor. 3.2.3 The Contractor shall permit the Subcontractor to request directly from the Architect information regarding the percent- ages of completion and the amount certified on account of Work done by the Subcontractor. 3.2.4 If hazardous substances of a type of which an employer is required by law to notify its employees are being used on the site by the Contractor, a subcontractor or anyone directly or indirectly employed by them (other than the Subcontractor), the Contractor shall, prior to harmful exposure of the Subcon- tractor's employees to such substance, give written notice of the chemical composition thereof to the Subcontractor in suffi- cient detail and time to permit the Subcontractor's compliance with such laws. 3.3 CLAIMS BY THE CONTRACTOR 3.3..1 Liquidated damages for delay, if provided for in Para- graph 9.3 of this Agreement, shalt be assessed against the Sub- contractor only to the extent caused by the Subcontractor, the Subcontractor's employees and agents, Sub subcontractors, suppliers or any person or entity for whose acts the Subcon- AIA DOCUMENT A401 • CONTRACTOR•SUBCONTRACTOR AGREEMENT • TWM.FrH EDITION • AIA° • ©1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON,. D.C. 20006 A401-1987 2 tractor may be liable, and in no case for delays or causes arising outside the scope of this Subcontract. 3.3.2 Except as may be indicated in this Agreement, the Con- tractor agrees that no claim for payment for services rendered or materials and equipment furnished by the Contractor to the Subcontractor shall be valid without prior notice to the Sub- contractor and unless written notice thereof is given by the Contractor to the Subcontractor not later than the tenth day of the calendar month following that in which the claim originated. 3.4 CONTRACTOR'S REMEDIES 3.4.1 If the Subcontractor defaults or neglects to carry out the Work in accordance with this Agreement and fails within three working days after receipt of written notice from the Contrac- tor to commence and continue correction of such default or neglect with diligence and promptness, the Contractor may, after three days following receipt by the Subcontractor of an additional written notice, and without prejudice to any other remedy the Contractor may have, make good such deficiencies and may deduct the cost thereof from the payments then or thereafter due the Subcontractor, provided, however, that if such action is based upon faulty workmanship or materials and equipment, the Architect shall first have determined that the workmanship or materials and equipment are not in accor- dance with requirements of the Prime Contract. ARTICLE 4 SUBCONTRACTOR 4.1 EXECUTION AND PROGRESS OF THE WORK 4.1.1 The Subcontractor shall cooperate with the Contractor in scheduling and performing the Subcontractor's Work to avoid conflict, delay in or interference with the Work of the Contractor, other subcontractors or Owners own forces. 4.1.2 The Subcontractor shall promptly submit Shop Draw- ings, Product Data, Samples and similar submiuals required by the Subcontract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Contractor or other subcontractors. 4.1.3 The Subcontractor shall submit to the Contractor a schedule of values allocated to the various parts of the Work of this Subcontract, aggregating the Subcontract Sum, made out in such detail as the Contractor and Subcontractor may agree upon or as required by the Owner, and supported by such evi- dence as the Contractor may direct. In applying for payment, the Subcontractor shall submit statements based upon this schedule. 4.1.4 The Subcontractor shall furnish to the Contractor periodic progress reports on the Work of this Subcontract as mutually agreed, including Information on the status of mate- riais and equipment which may be in the course of preparation or manufacture. 4.1.5 The Subcontractor agrees that the Architect will have the authority to reject Work which does not conform to the Prime Contract. The Architect's decisions on matters relating to aesthetic effect shall be final if consistent with the intent expressed in the Prime Contract. 4.1.6 The Subcontractor shall pay for materials, equipment and labor used in connection with the performance of this Sub- contract through the period covered by previous payments received from the Contractor, and shall furnish satisfactory evidence, when requested by the Contractor, to verify com- pliance with the above requirements. 4.11 The Subcontractor shall take necessary precautions to protect properly the Work of other subcontractors from damage caused by operations under this Subcontract. 4.1.8 The Subcontractor shall cooperate with the Contractor, other subcontractors and the Owner's own forces whose Work might interfere with the Subcontractor's Work. The Subcon- tractor shall participate in the preparation of coordinated draw- ings in areas of congestion, if required by the Prime Contract, specifically noting and advising the Contractor of potential con- flicts between the Work of the Subcontractor and that bf the Contractor, other subcontractors or the Owner's own forces, 4.2 LAWS, PERMITS, FEES AND NOTICES 4.2.1 The Subcontractor shall give notices and comply with laws, ordinances, rules, regulations and orders of public author- ities bearing on performance of the Work of this Subcontract. The Subcontractor shall secure and-pay for permits and govern- mental fees, licenses and inspections necessary for proper execution and completion of the Subcontractor's Work, the furnishing of which is required of the Contractor by the Prime Contract. 4.2.2 The Subcontractor shall comply with Federal, state and local tax laws:, social security acts, unemployment compensa- tion acts and workers' or workmen's compensation acts insofar as applicable to the performance of this Subcontract. 4.3 SAFETY PRECAUTIONS AND PROCEDURES 4.3.1 The Subcontractor shall take reasonable safety precau [ions with respect to performance of this Subcontract,. shall comply with safety measures. Initiated by the Contractor and with applicable laws, ordinances, rules, regulations and orders of public authorities for the safery of persons or property in accordance with the requirements of the Prime Contract. The Subcontractor shall report to the Contractor within three days an injury to an employee or agent of the Subcontractor which occurred at the site. 4.3.2 If hazardous substances of a type of which an employer is required by law to notify its employees are being used on the site by the Subcontractor, the Subcontractor's Sub- subcontractors or anyone directly or indirectly employed by them, the Subcontractor shall, prior to harmful exposure of any employees on the site to such substance, give written notice of the chcmical composition thereof to the Contractor In suffi- cient detail and time to permit compliance with such laws by the Contractor, other subcontractors and other employers on the site. 4.3.3 In the event the Subcontractor encounters on the site material reasonably believed to be asbestos or polychlorinated biphenyl (PCB) which has not been rendered harmless, the Subcontractor shall immediately stop Work in the area affected and report the condition to the Contractor in writing. The Work in the affected area shall resume in the absence of asbestos or polychlorinated biphenyl (PCB), or when it has been rendered harmless, by written agreemcnt of the Conuac- tor and Subcontractor, or in accordance with final dctemilna- tion by the Architect on which arbitration has not beer demanded, or by arbitration as provided in this Agreement t The Subcontractor shall not be required pursuant to Article 5 to perform without consent any Work relating to asbestos or polychlorinated biphenyl (PCB). AIA DOCUMENT A401 - CONTRACTOR-SUBCONTRACTOR AGREEMENT • TWELFTH EDITION • AIA° •x.1987 3 A401-1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W.. WASHINGTON, D.C. 2000Ei 4.3.4 To the fullest extent permitted by law, the Contractor ""shall indemnify and hold harmless the Subcontractor, the Sub- =contractor's Sub-subcontractors, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work in the aF fected area if in fact the material is asbestos or polychlorinated biphenyl (PCB) and has not been rendered harmless, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) in- cluding loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, Architect, Owner, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indem- nified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indem- nity which would otherwise exist as to a party or person described in this Subparagraph 43.4. 4.4 CLEANING UP 4.4.1 The Subcontractor shall keep the premises and sur- rounding area free from accumulation of waste materials or rub- bish caused by operations performed under this Subcontract. The Subcontractor shall not be held responsible for unclean conditions caused by other contractors or subcontractors. 4.5 WARRANTY X4.5.1 The Subcontractor warrants to the Owner, Architect and Contractor that materials and equipment furnished under this Subcontract will be of good quality and new unless otherwise required or permitted. by the Subcontract Documents, that the Work of this Subcontract will be free from defects not Inherent in the quality required or permitted, and that the Work will conform with the requirements of the Subcontract Documents. Work not conforming to these requirements, including substi- tutions not properly approved and authorized, may be consid- ered defective. The Subcontractor's warranty excludes remedy for damage or defect caused by abuse, modifications not ex- ecuted by the Subcontractor, Improper or insufficicrit mainte- nance, improper operation, or normal wear and tear under nor- mal usage. This warranty shall be in addition to and not in limitation of any other warranty or remedy required by law or by the Subcontract Documents. 4.6 INDEMNIFICATION 4.6.1 To the fullest extent permitted by law, the Subconrractor shall indemnify and hold harmless the Owner, Contractor, Architect, Architect's consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of the Subcontractor's Work under this Subcontract, provided that such claim, dam- age, loss or expense is attributable to bodily Injury, sickness, disease or death, or to injury to or destruction of tangible prop- erty (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by ltcgligent acts or omissions of the Subcontractor, the Subcon- 1ractor's Sub-subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce other rights or obligations of indemnity which would otherwise exist aS to a party or person described in this Paragraph 4.6. 4.6.2 In claims against any person or entity idemnified under this Paragraph 4.6 by an employee of the Subcontractor, the Subcontractor's Sub-subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Paragraph 4.6 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Subcontractor or the Subcontractor's Sub-subcontractors under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. 4.6.3 The obligations of the Subcontractor under this Paragraph 4.6 shall not extend to the liability of the Architect, the Architect's consultants, and agents and employees of any of them arising out of (1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications, or (2) the giving of or the failure to give direc- tions or instructions by the Architect, the Architect's con- sultants, and agents and employees of any of them, provided such giving or failure to give is the primary cause of the injury or damage. 4.7 REMEDIES FOR NONPAYMENT 4.7.1 Provided the Contractor has received payment from the Owner, if the Contractor does not pay the Subcontractor through no fault of the Subcontractor, within seven days from the time payment should be made as provided in this Agree- ment, the Subcontractor may, without prejudice to other available remedies, upon seven additional days' written notice to the Contractor, stop the Work of this Subcontract until pay- ment of the amount owing has been received. The Subcontract Sum shall, by appropriate adjustment, be increased by the amount of the Subcontractor's reasonable costs of shutdown, delay and start-up. ARTICLE 5 CHANGES IN THE WORK 5.1 The Owner may make changes in the Work by issuing Modifications to the Prime Contract. Upon receipt of such a Modification issued subsequent to the execution of the Subcon- tract Agreement, the Contractor shall promptly notify the Sub- contractor of the Modification. Unless otherwise directed by the Contractor, the Subcontractor shall not thereafter order materials or perform. Work which would be inconsistent with the changes made by the Modifications to the Prime Contract. 52 The Subcontractor may be ordered in writing by the Con- tractor, without invalidating this Subcontract, to make changes in the Work within the general scope of this Subcontract con- sisting of additlons, deletions or other revisions; including. those required by Modifications to the Prime Contract Issued subsequent to the execution of this Agreement, the Subcontract Stem and the Subcontract Time being adjusted accordingly. The Subcontractor, prior to the commencement of such changed or revised Work, shall submit promptly to the Contractor written copies of a claim for adjustment to the Subcontract Stun and Subcontract Time for such revised Work in a manner consis- tent with requirements of the Subcontract Documents. 5.3 The Subcontractor shall make claims promptly to the Con- tractor for additional cost, extensions of time and damages for delays or other causes in accordance with the Subcontract AIA DOCUMENT A401 • CONTRACTOR-SUBCONTRACTOR AGREEMENT • TWELFTH EDITION • AIA° • ®1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 A401.1987 4 Documents. A claim which will affect or become part of a claim which the Contractor is required to make under the Prime Corr tact within a specified time period or in a specified manner shall be -Wade in sufficient time to pemtit the Contractor to satisfy the requirements of the Prime Contract. Such claims shall be received by the Contractor not less than two working days preceding the time by which the Contractor's claim must be made. Failure of the Subcontractor to make such a timely claim shall bind the Subcontractor to the same consequences as those to which the Contractor is bound. ARTICLE 6 ARBITRATION. 6.1 Any controversy or claim between the Contractor and the Subcontractor arising out of or related to this Subcontract, or the breach thereof, shall be settled by arbitration, which shall be conducted in the same manner and under the same pro- cedure As provided in the Prune Contract with respect to claims between the Owner and the Contractor, except that a derision by the Architect shall not be a condition precedent to arbitra- tion. If the Prime Contract does not provide for arbitration or fails to specify the manner and procedure for arbitration, It shall be conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association cur• rently In effect unless the parties mutually agree otherwise. 6.2 Except by written consent of the person or entity sought to be joined, no arbitration arising out of or relating to the Sub- contract shall include, by consolidation or joinder or in any other manner, any person or entity not a party to the Agree- ment under which such arbitration arises, unless it is shown at the time the demand for arbitration is filed that (1) such person or entity is substantially involved in a common question of fact or law, (2) the presence of such person or entity is required if complete relief Is to be accorded In the arbitration, (3) the inter- est or responsibility of such person or entity in the matter is not unsubstantial, and (4) such person or entity Is not the Architect, the Architect's employee, the Architect's consultant, or An employee or agent of any of them. This agreement to arbitrate and any other written agreement to arbitrate with an additional person or persons referred to herein shall be specifically en- forceable under applicable law in any court having jurisdiction thereof. 6.3 The Contractor shall give the Subcontractor prompt writ- ten notice of any demand received or made by the Contractor for arbitration if the-dispute involves or relates to the Work, materials, equipment, rights or responsibilities of the Subcon- tractor. The Contractor shall consent to inclusion of the Sub- contcaetor in the arbitration proceeding whether by joinder, consolidation or otherwise, If the. Subcontractor requests in writing to be included within ten days after receipt of the Con. tractor's notice. 6.4 The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it In accordance with applicable law in any court having jurisdiction thereof. 6.5 This Article 6 shall not be deemed a limitation of rights or remedies which the Subcontractor may have under Federal law, under state mechanics' lien laws, or under applicable labor or material payment bonds unless such rights or remedies are expressly waived by the Subcontractor. ARTICLE 7 TERMINATION, SUSPENSION OR ASSIGNMENT OF THE SUBCONTRACT 7.1 TERMINATION BY THE SUBCONTRACTOR 7.1.1 The Subcontractor may terminate the Subcontract for the same reasons and under the same circumstances and pro- cedures with respect to the Contractor As the Contractor may terminate with respect to the Owner under the Prime Contract, or for nonpayment of amounts due under this Subcontract for 60 days or longer. In the event of such termination by the Sub- contractor for any reason which Is not the fault of the Subcon- tractor., Sub-subcontractors or their agents or employees or other persons performing portions of the Work under contract with the Subcontractor, the Subcontractor shall be entitled to recover from the Contractor payment for Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, Including reasonable overhead, profit and damages. 7.2 TERMINATION BY THE CONTRACTOR 7.2.1 if the Subcontractor persistently or repeatedly fails. or neglects to carry out the Work in accordance with the Subcon- tract Documents. or otherwise to perform in accordance with this Agreement and fails within seven days after receipt of writ- ten notice to commence and continue correction of such default or neglect with diligence and promptness, the Contrac.- for may, after seven days following receipt by the Subcontrac:- tor of an additional written notice and without prejudice to any other remedy the Contractor may have, terminate the Subcon- tract and finish the Subcontractor's Work by whatever method the Contractor may deem expedient. If the unpaid balance of the Subcontract Sum exceeds the expense of finishing the Sub- contractor's Work, such excess shall be paid to the Subcontrac- tor, but if such expense.exceeds such unpaid balance, the Sub- contractor shall pay the difference to the Contractor. 7.3 ASSIGNMENT OF THE SUBCONTRACT 7.3.1 in the event of termination of the Prime Contract by the Owner, the Contractor may assign this Subcontract to the Owner, with the Owner's agreement, subject to the provisions of the Prime Contract and to the prior rights of the surety, if any, obligated under bonds relating to the Prime. Contract. If the Work of the Prime Contract has been suspended for more than 30 days, the Subcontractor's compensation shall be equitably adjusted. 7.3.2 The Subcontractor shall not assign the Work of this Sub- contract without the written consent of the Contractor, nor subcontract the whole of this Subcontract without the written consent of the Contractor, nor further subcontract portions of this Subcontract without written notification to the Contractor when such notification Is requested by the Contractor. AIA DOCUMENT A401 • CONTRACTOR-SUBCONTRACTOR AGREEMENT • TWELFTH ED1T1014 • AIA° • r<31987 5 A401-1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 ARTICLE 8 THE WORK OF THIS SUBCONTRACT 8.1 The Subcontractor shall execute the following portion of the Work described in the Subcontract Documents, including all `-supervision, labor, materials, equipment, services and other items required to complete such portion of the Work, except to the ktent specifically indicated in the Subcontract Documents to be the responsibility of others. The scope of Work for this Subcontract covers the site development work as follows in accordance with York Excavating's revised proposal of April 30, 2008 Icopy attached): 1 • Mobilization / Layout. 2. Bulk grading (footprint change, new entrance). 3. Fine grading. 4. Concrete curbs complete. 5. Stone under slab, 4". 6. Stone under aprons, 6". 7. Stone under dolly strips to be included with bituminous paving. 8. Stone under sidewalks, 4". 9. Sanitary sewer per RSM, exterior and interior, including testing. (Sanitary pump by R. S. Mowery & Sons.) 10. Fire loop and laterals including testing. (Loop to be 10" DR-14 plastic.) 11, Roof drainage, 12. Stormwater changes. 3. Bio-retention pond including seeding, 14. Water meter pit allowance of $30,000. 15. Respread topsoil. 16. Rock excavation for utilities and foundations. 17. Foundation excavation/backfilf. Note: 500 I.f. of over-excavation and backfill is included in previously filled areas. Select stone backfilf is to be paid as extra. 18. Dock leveler pit excavation (140 total). 19. Bituminous paving and stone under dolly strips including new PennDOT entrance, (Note: A section of the truck parking lot is not being installed at this time. See drawing, It is to be topsoiled and seeded (by others), Asphalt Index at $353.00/ton. 20, Gas line excavation/backfill (1,000 1.f.). Lines and signs by R. S. Mowery & Sons. ARTICLE 9 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 9.1 The Work to be performed under this Subcontract shall be commenced as directed by the General Contractor and subject to authorized adjustments, this Work shall be performed in accordance with a schedule established by the General Contractor and agreed to by the Subcontractor to permit substantial completion of the total project not later than September 19, 200.8. 2 Time is of the essence of this Subcontract. 9,3 No extension of time will be valid without the Contractor's written consent after claim made by the Subcontractor in accordance with Paragraph 5.2. AIA DOCUMENT A401 • CONTRACTOR-SUBCONTRACTOR AGREEMENT • TWELFTH EDITION • AIA° • 01987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 A401-1987 6 ARTICLE 10 SUBCONTRACT SUM 10.1 The Contractor shall. pay the Subcontractor in current funds for performance of the Subcontract the Subcontract Sum of THREE KIL.LIOM THREE HUNDRED TWENTY-ONE THOUS. FOUR HUND. SIXTY Dollarst$30211460.00 ------------------ subject cc additions and deductions as provided in the Subcontract Doatments. 10.2 The Subcontract Sum is based upon the following alternates, if any, which are descaibed in the Subcontract Documents and have been accepted by the Owner and the Contractor as may be applicable to the Work of this Subcontract. 10.2.1 All applicable taxes have been included in tine Subcontract Sum. 10.2.2 As a result of your bid proposal and subsequent negotiations. 10.3 Unit prices, if any, are as follows: See attached rate sheet ARTICLE 11 PROGRESS PAYMENTS 11.1 Based upon applications for payment submitted to the Contractor by the Subcontractor, corresponding to Applications for Payment submitted by the Contractor to the Architect, and Cerri&ates for Payment issued by the Architect, the Contractor shall make progress payments on account of the Subcontract Sum to the Subcontractor as provided below and elsewhere In the Subcontract Documents. 11.2 The period covered by each application for payment shall be one calendar month ending on the last day of the month. 11.3 Provided an application for payment is received by the Contactor not later than the twentieth (20th) day of a month, the Contractor shall include the Subcontractor's Work covered by that application in the next Application for Pay- ment which the Contractor is entitled to submit to the Architect. The Contractor shall pay the Subcontractor each progress payment AIA DOCU MEW A401 - CONTRACTOR-SUBCONTRACTOR AGREEMENT - TWELFTH EDITION - AIA° - 01987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK. AVENUE, N.V., WASHINGTON, D.C. 20006 A401-1987 7 within ree orking days after the Contract receives aymen from the owner, less a ten percent (10%) retainer, 11.4 If an application for payment is received by the Contractor after the application date fixed above, the Subcontractor's Work covered by it shall be Included by the Contractor in the next Application for Payment submitted to the Architect. 11.5 Each application for payment shall be based upon the most recent schedule of values submitted by the Subcontractor in accordance with the Subcontract Documents. The schedule of values shall allocate the entire Subcontract Sum among the various portions of the Subcontractor's Work and be prepared in such form and supported by such data to substantiate its accuracy as the Contractor may require. This schedule, unless objected to by the Contractor, shall be used as a basis for reviewing the Subcontractor's applications for payment. 11.6 Applications for payment submitted by the Subcontractor shall indicate the percentage of completion of each portion of the Subcontractor's Work as of the end of the period covered by the application for payment. 11.7 Subject to the provisions of the Subcontract Documents, the amount of each progress payment shall be computed as follows: 11.7.1 Take that portion of the Subcontract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Subcontractor's Work by the share of the total Subcontract Sum allocated to that portion Of the Subcontractor's Work in the schedule of values, less that percentage actually retained, if any, from payments to the Contractor on account of the Work of the Subcontractor. Pending final determination of cost to the Contractor of changes in the Work which have been properly authorized by Construction Change Directive, amounts not in dispute may be Included to the same extent provided in the Prime Contract, even though the Subcontract Sum has not yet been adjusted; 11.7.2 Add that portion of the Subcontract Sum properly allocable to materials and equipment delivered and suitably stored at the site by the Subcontractor for subsequent incorporation In the Subcontractor's Work or, If approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing, less the same percentage retainage required by the Prime Contract to be applied to such materials and equipment In the Contractor's Application for Payment; 11.7.3 Subtract the aggregate Of previous payments made by the Contractor; and 11.7.4 Subtract amounts, if any, calculated under Subparagraph 11.73 or 11.7.2 which are related to Work of the Subcontractor for which the Architect has withheld or nullified, in whole or in part, a Certificate of Payment for a cause which is the fault of the Subcontractor. 11.8 SUBSTANTIAL COMPLETION 11.8.1 When the Subcontractor's Work or a designated portion thereof is substantially complete and in accordance with the require- ments of the Prime Contract, the Contractor shall, upon application by the Subcontractor, make prompt. application for payment for such work. Within 30 days following issuance by the Architect of the Certificate for Payment covering such substantially completed Work, the Contractor shall, to the full extent allowed in the Prime Contract, make payment to the Subcontractor, deducting any por- tion of the funds for the Subcontractor's Work withheld in accordance with the Certificate to cover costs of items to be completed or corrected by the Subcontractor. Such payment to the Subcontractor shall be the enure unpaid. balance of the Subcontract Sum if a full release of retainage is allowed under the Prime Contract for the Subcontractor's Work prior to the completion of the entire Project. If the Prime Contract does not allow for a full release of rcminage, then such payment shall be an amount which, when added to previous payments to the Subcontractor, will reduce the retalnage on the Subcontractor's substantially completed Work to the same percentage of retainage as that on the Contractor's Work covered by the Certificate. ARTICLE 12 FINAL. PAYMENT 12.1 Final payment, constituting the entire unpaid balance of the Subcontract Sum, shall be made by the Contractor to the Subcon- tractor when the Subcontractor's Work is fully performed in accordance with the requirements of the Contract Documents, the Ar- chitcct has issued a Certificate for Payment covering the Subcontractor's. completed Work and the Contractor has received payment from the Owner. If, for any cause which is not the fault of the Subcontractor, a Certificate for Payment is not issued or the Contractor does not receive timely payment or does not pay the Subcontractor within three working days after receipt of payment from the Owner,. final payment to the Subcontractor shall be made upon demand. 12.1.1 Final payment will not be due until all of the Subcontractor's obligations regarding warranties, certifications, as--built drawings, operating instructions, and punch list items are completed to the satisfaction of the Owner and Architect. 12.2 Before issuance of the final payment, the Subcontractor, if required, shall submit evidence satisfactDry to the Contractor that all payrolls, bills for materials and equipment, and all known indebtedness connected with the Subcontractor's Work have been satisfied. AIA IJULArMENT A401 • CONTRACTOR-SUBCONTRACTOR AGREEMENT • TWELFTH EDITION • AIA° • Q 1957 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 A401-1987 8 ARTICLE 13 INSURANCE AND BONDS 13.1 The Subcontractor shall purchase and maintain insurance of the following types of coverage and limits of liability: See Attachment "A"'- Insurance Coverage Requirements. 13.2 Coverages, whether written on an occurrence or claims-made basis, shall be maintained without interruption from date of commencement of the Subcontractor's Work until date of final payment and termination of any coverage required to be main. tained after final payment. 13.3 Certificates of insurance acceptable to the Contractor shall be filed with the Contractor prior to commencement of the Sub- contractor's Work. These certificates and the Insurance policies required by this Article 13 shall contain a provision that coverages afforded under the policies will not be cancelled or allowed to expire until, at least 30 days' prior written notice has been given to the Contractor. If any of the foregoing insurance coverages are required to remain in force after final payment and are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the final application for payment as required In Article 12. If any information concerning reduction of coverage is not furnished by the insurer, it shall be furnished by the Subcontractor with reasonable promptness according to the Subcontractor's information and belief. 13.4 The Contractor shall furnish to the Subcontractor satisfactory evidence of insurance required of the Contractor under the Prime Contract. 13.5 Waivers of Subrogation. The Contractor and Subcontractor waive all rights against (I) each other and any of their Subcontrac tors, Sub-subcontractors, agents and employees, each of the other, and (2) the Owner, the Architect, the Architect's consultants, separate contractors, and any of their subcontractors, sub-subcontractors, agents and employees for damages caused by fire or other perils to the extent covered by property insurance provided under the Prime Contract or other property insurance applicable to the work, except such rights as they may have to proceeds of such insurance held by the Owner as fiduciary. The Subcontractor shall require of the Subcontractor's Sub-subcontractors, agents and employees; by appropriate agreements, written where legally required for validity, similar waivers in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be cffective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person. or entity had an insurable interest in the property damaged. 13.6 The Contractor shall promptly, upon request of the Subcontractor, furnish a copy or permit a copy to be made of any bond covering payment of obligations arising under the Subcontract. - '13.7 This Subcontract does not require Performance and/or Labor and Material Payment Bonds. ARTICLE 14 TEMPORARY FACILITIES AND WORKING CONDITIONS 14.1 Unless otherwise provided in this Subcontract, the Contractor shall furnish and make available at no cost to the Subcontractor the following temporary facilities and services. Normal electric power, water, and toilet facilities will be provided to the Subcontractor at no charge. Not withstanding the above, Subcontractor will be required to provide and install temporary facilities or systems as delineated in their Scope of Work. (Article 8 of this Subcontract) or in the Contract Documents. Limited storage areas will be made available to the Subcontractor as directed by the General Contractor. Subcontractor's employees shall park vehicles only at locations directed by the General Contractor. Security for stored materials, tools, and equipment will be the responsibility of the Subcontractor. Unloading, material handling, and hoisting for Work of this Subcontract will be the responsibility of the Subcontractor. The Subcontractor will clean up after his own Work, as well as dispose of any packaging materials or other rubbish which he has generated. All waste, rubbish, and unsuitable material shalt be legally disposed of off the site by the Subcontractor. 14.2 Specific working conditions: See Pages 9a and 9b of this Subcontract Agreement. AIA DOCUMENT A401 - CONTRACTOR-SUBCONTRACTOR AGREEMENT TWELFTH EDITION - AIA° - Q 1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 A401-1987 9 ARTICLE 14.2 - WORKING CONDITIONS x.2.1 This project is being administered by our Project Manager, Rod Bates. All inquiries should be directed to Mr. Bates at 717.805.7082 or rbates@rsmowery.com. Our Site Superintendent is Brad Walters (cell: 717.574.9683 / fax: 717.243.4630). 14.2.2 Subcontractor shall comply with all requirements of the Right-To-Know Act and MUST supply a copy of their Written Hazard Communication Policy and MSDS information for all material to be used on THIS project. This date must be received by our Safety Director PRIOR to any Work being performed on this job. Any fines and penalties imposed upon and collected from the Contractor which result fromthe failure of the Subcontractorto comply with laws and regulations pertaining to the Right-To-Know Act, hazardous communications, and other similar regulations, shall be reimbursed by the Subcontractor to the Contractor and the Contractor Is authorized to unilaterally deduct such sums from the Subcontract Sum. 14.2.3 Subcontractor shall be responsible to perform all Work in a safe manner in compliance with OSHA Regulations and any special safety requirements of the Owner. Subcontractor shall adhere to a proper Assured Grounding Program. Any fines and penalties imposed upon and collected from the Contractor which result from the failure of the Subcontractor to comply with laws and regulations pertaining to OSHA or other similar regulations, shall be reimbursed by the Subcontractor to the Contractor and the Contractor is authorized to unilaterally deduct such sums from the Subcontract Sum. 14.2.4 Subcontractor shall promptly forward submittals to the Contractor for approval. Shop Drawings - eight (8) prints; two (2) copies will be returned. ' Catalog Cuts - eight (8) Copies; two (2) copies will be returned. 14.2.5 Subcontractor is required to prepare as-built drawings, maintenance manuals, operating instructions, and deliver warranties covering his Work. As-built drawings shall show any deviations from the contract documents and provide specific dimensional locations for hidden features which may require later access. 14.2.6 Subcontractor shall have an authorized representative in attendance at all coordination meetings to commit to scheduling requirements. 14.2.7 Substitutions for specified products are only permitted when specifically requested and approved. Do not submit shop drawings or catalog information for substitutions which have not been previously authorized. 14.2.8 Subcontractor shall provide products to be incorporated into the Work of the project that are new, undamaged, and unused at the time of the installation, unless otherwise indicated in the Contract Documents. Subcontractor shall produce, upon request, evidence supporting the source of materials used In the Work. The products provided under this Subcontract shall meet or exceed the quality specified in the Contract Documents. The burden of proof of quality for all products provided rests with the Subcontractor. The costs incurred for substantiating quality shall be borne by the Subcontractor. If the Owner accepts substituted materials of a lesser quality than specified, the owner shall be entitled to a credit equal to the difference in cost. of the products specified and the products provided. 14.2.9 Subcontractor fully warrants and guarantees for the benefit of the Owner as purchaser the effectiveness, fitness for the purpose intended, quality and merchantability of any item provided and/or installed by such Subcontractor.. 14.2.10 This Subcontractor shall be responsible for all cutting and patching necessary to accommodate the Work of this Subcontract. 14.2.11 Subcontractor shall comply with, but not be limited to, the following: All applicable codes, regulations, and requirements of government bodies and utilities having jurisdiction or authority Anti-Pollution Requirements - Act 247 Underground Utilities - Act 287 14.2.12 Subcontractor shall not incorporate in the Work nor permit to be brought to the site any materials or substances which are considered "hazardous materials" or "toxic materials" as defined or designated under any act, statute, code, regulation, or ordinance promulgated by any federal, state, or local body. 14.2.13 Subcontractor shall dispose of any "hazardous materials", "toxic materials", or any other materials or substances requiring special disposal procedures in a proper legal manner. "Hazardous materials", "toxic materials", and "proper disposal" shalt be defined in accordance with all acts, statutes, codes, regulations, or ordinances promulgated by any federal, state, or local body. 14.2.14 Upon request of the Contractor, Subcontractor shall promptly provide a list of aft sub-subcontractors and material vendors having a sub-subcontract or purchase order greater than $5,000 with said list providing the name and address of each sub-subcontractor or material vendor, a description of their scope of work or material to be provided, the amount of the sub-subcontract or purchase order, and a contact person with phone number. Subcontractor, and each of their sub-subcontractors and material vendors with a sub-subcontract or purchase order greater than $5,000, may be required to execute the following documents in the form provided by the Contractor: • Partial Release of Liens in conjunction with the receipt of each progress payment in an amount corresponding to said progress payment; • Conditional Release of Liens as a prerequisite to receipt of final payment; • Final Release of Liens upon receipt of final payment. 14.2.15 Subcontractor shall comply with the Drug and Alcohol Policies of R. S. Mowery & Sons, Inc. and the Owner. 14.2. T 6 Smoking is not permitted in the new building when wall construction begins. 9a 14.2.17 Subcontractor sham not erect any signs on the property. Signege mounted on trailers will be permitted. 14.2.18 This provision does not apply to the Building Permit. Subcontractor shall obtain and pay for any permits, licenses, and certificates requlr` by Law and/or any public authority for the proper execution and completion of its Work. Subcontractor shall furnish proof of paymenf all such permits, licenses, and certificates, or proof that no permits, licenses, or certificates are required. Subcontractor shall give all notices and comply with ail applicable laws, ordinances, regulations, rules, and orders of any public authority bearing on the performance of the Work. If Subcontractor observes that any of the Contract Documents are at variance therewith in any respect, it shall promptly notify the Contractor in writing. If Subcontractor performs any Work knowing it to be contrary to such applicable laws, ordinances, regulations, rules, or orders, it assumes full responsibility therefore and shall bear all costs attributable thereto. 14.2.19 Contractor shall be advised of any sub-subcontractors to be engaged. by the Subcontractor. Sub-subcontractors are subject to approval by Contractor, which shall not be unreasonably withheld. 14.2.20 In the event the Contractor is terminated by the Owner for any reason whatsoever, the Subcontractor shall, upon request of the Owner, continue to perform the Work under this Subcontract for the benefit of the Owner in accordance with the terms and conditions thereof. Performance by the Subcontractor to be subject to the condition that the Owner shall be responsible for those obligations of the Contractor that accrue subsequent to the Owner's termination of the Contractor. 14.2.21 Subcontractor warrants and represents that the Subcontractor shall not knowingly or negligently communicate or disclose at any time to any person any information in connection with the Work of this project, except as may be required. to perform the Work or by any applicable law. 14.2.22 Subcontractor shall furnish, upon delivering signed Subcontract, the name of one (1) individual who will act as Project Coordinator for the Subcontractor. Phone numbers are to be provided such that the Project Coordinator, or his authorized substitute, can be contacted at all times by the Contractor. 14.2.23 All provisions and regulations of the Federal and State Wages Acts shall be adhered to in the performance of this Work. 14.2.24 Subcontractor shall promptly correct all Work rejected by the Owner, Architect, or Contractor as defective or as failing to conform to the Contract Documents, whether observed before or after substantial completion and whether or not fabricated, installed, or completed. All defective or non-conforming Work shall be promptly removed from the site. Subcontractor shall bear all costs of correcting such rejected Work. Should the Subcontractor fail to respond in an expedient manner, the Contractor may correct the Work and deduct the cost from the Subcontract Sum of this. Subcontract. 14.2.25 It, within one year after the date of substantial completion and acceptance of all Work performed under the Owner/Contractor Agreen' or within such longer period of time as may be prescribed by Law or by the terms of any applicable special guarantee required by the Contract Documents, any of the Work is found to be defective or not in accordance with the Contract Documents, Subcontractor shall correct it promptly after receipt of a written notice from the Contractor to do so. The Contractor shall give such notice promptly after discovery of the condition. Subcontractor shall bear the cost of making good all Work destroyed or damaged by such removal or correction. 14.2.26 If Subcontractor receives any directive to perform additional Work or modify the requirement of the Work of this Subcontract, the Subcontractor shall waive the right to additional compensation if he does not advise the Contractor of any additional cost prior to proceeding with the additional Work or change. 14.2.27 All claims for additional costs, extensions of time, or otherwise with respect to the Work of this Subcontract, shall be submitted to the Contractor in the manner provided in the Contract Documents for like claims by the Contractor upon the Owner. 14.2.28 Subcontractor is without privity of Contract to the Owner and it agrees by signing this Subcontract that it neither acquires nor intends to acquire any rights against the Owner on a third party beneficiary theory or any others. 14.2.29 Subcontractor shall provide materials for the Owner's later use or as replacement material as required by the Contract Documents. Subcontractor shall deliver to the Contractor's Superintendent or Project Manager such materials in. the required quantities. At the time of delivery, the Subcontractor shall provide a written description of each material provided and the quantities which shall be signed by the Contractor to acknowledge receipt. 9b ARTICLE 15 MISCELLANEOUS PROVISIONS 15.1 Where reference is made in this Agreement to a provision of the General Conditions or another Subcontract Document, ` e reference refers to that provision as amended or supplemented by other provisions of the Subcontract Documents. 15.2 Payments due and unpaid under this Subcontract shall bear interest from the date payment is due at such rate as the parties may agree upon in writing or, in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. 15.3 If requested by the Contractor, the Subcontractor shall promptly furnish an all inclusive list of sub-subcontractors employed by the Subcontractor and all material suppliers of the Subcontractor. Absent a legitimate dispute, Subcontractor authorizes the Contractor to issue joint checks to suppliers and sub-subcontractors when Subcontractor's account for this project is overdue or Subcontractor fails to promptly pay sub-subcontractors or suppliers for work or materials for which the Subcontractor has received payment from the Contractor. If the Subcontractor is adjudged a bankrupt, or if he makes a general assignment for the benefit of his creditors, or if a receiver is appointed on account of his insolvency, the Contractor is authorized to make payment of sums properly due to all of Subcontractor's sub-subcontractors and material suppliers. 15.4 In the event of any breach of any provision of this Subcontract Agreement by Subcontractor, or the event of any breach of any contract provision of any other contract between Contractor and Subcontractor, whether or not pertaining to this Project, Contractor is hereby authorized at any time to withhold from the Subcontractor such amounts due to the Subcontractor under this or any such contract as may be necessary to insure compliance with all terms of this or any such contract between Contractor and Subcontractor, and as may be necessary to pay just claims for labor, services, rentals, and materials furnished in or about the Work on this or any such contract. Contractor shall have the right to apply any such amount retained from the Subcontractor directly to the payment of any such claims. 15.5 If the Subcontractor is adjudged a bankrupt, or if he makes a general assignment for the benefit of his creditors, or if a receiver is appointed on account of his insolvency, or if he fails to make proper payment to sub-su.bcantractors and material suppliers for services, materials, or labor, or persistently disregards laws, ordinances, rules, regulations, or orders of public authority having jurisdiction, then the Contractor may, without prejudice to any right or remedy and after giving the Subcontractor and his Surety, if any, seven (7) days' written notice, during which period the Subcontractor fails to cure the violation, terminate this ...;Subcontract and take possession of all materials, equipment, tools, construction equipment and machinery thereon owned by the uubcontractor and may finish the Work by whatever reasonable means the Contractor may deem expedient, A written notice of termination shall be issued by the Contractor to the Subcontractor at the time the Subcontract is terminated. The Subcontractor shall not be entitled to receive any further payment until the Work is finished, nor shall the Subcontractor be relieved of their obligations under the Subcontract. The Contractor may avail itself of any remedies as are reasonably necessary to maintain the Schedule of the Work. The Contractor may offset against any sums due or to become due the Subcontractor under this Subcontract all costs incurred in pursuing such remedies including, but not limited to, reasonable overhead, profit, and attorney fees. The Subcontractor shall be liable for payment of any amount by which such expense may exceed the unpaid balance of the Subcontract Sum, and this obligation for payment shall survive termination of the Subcontract. If the unpaid balance of the Subcontract Sum exceeds the cost of completing the Subcontractor's Work and other damages incurred by the Contractor, such excess shall be paid to the Subcontractor. ARTICLE 1.6 ENUMERATION OF SUBCONTRACT DOCUMENTS 16.1 The Contract Documents, which constitute the entire Agreement between the Owner and Contractor, are listed in Article 1, and the documents which are applicable to this Subcontract, except for Addenda and Modifications issued after execution of this Subcontract, are enumerated in the listing of the Contract Documents attached hereto as Attachment "B". We have forwarded with this Subcontract those drawings and specifications which we deem appropriate to this Work. A full complement of the Contract Documents is available for your inspection at the site and at the Contractor's home office. This Agreement entered into as of the day and year first written above. CONTRACTOR: MOWER SONS IN. . !Signature) Bruce G. Rosendale. 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W 000 00a o a0 0000 CD 000 Ln O r a 00 d st O to w ^ J cr wLIJ L Lt coo ooo0000000000000 mmoommm O 0000000 0000 COCA 0It r0Mr M 0000 0000 r, CD Q OQ w O 000 m ttAMLoC)N"t -j (- w Q Lo r` t` o N co Lo m Ld c6 6 c M rn oS ai r C6 d a n o0 Met C Nd cOet0) qt etMNCONr ?LnLO N OZOa M N U 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O 0 0 0 0 0 0 0 O 0 0 0 0 0 0 q q 0 0 0 0 C !q x 0 q q 0 O O O g O o 0 0 00 00 0 0o O 0 j 0000 00 0 o00 0 0000000 0 0 0 - Q w OC d '- w0 ?Cl)_ ? o000 oo o a a 0o 0 0 0 o 0 0 0 0o o 0 0 O O O 0 0 0 0 0 0 0 0 0 666666666666666666 O 0 0 0 0 0 0 06 0 rn _ w O O O v M 0 a LO LO Co c00o t w U) U') co M _J = co F- Ir 0 > Z 0000000000000o0o00Ca 0 aocoorr- o 0000000 a 00000CD a00)Ln O rOOCD Iheh0 S W-- 0 0 0 0 0 0 0 0 00 0 0 0 0 0 00 00 A M M 06 M M 6 o oOooaoo o tarn M o r- orn O t- ?f-U.. r + a O 0000000 O to r- M I rnLO ON Cn ] U w f Lri n t; 6 ci (d L M Ln M OD ai G ? 00 a) 06 ?t 't MNCD NI- V MIct '4' Nd' ' (D 14, r- 0 a 04 or 0 N ., LL Q 0 oOOOOO0000000CDa0w a o 000OOr- r- CD w 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Cn U' O - 0 0 0"t qll: o JW Cj0 0o00 a0 00000000000 ?t MMOCD M00co Ooooo 0000 ta o o 4 O m D? O rn t rornrM 0 OoOOOOO 0000 cpl V C Lno C Nt ? I N `, w LO r- r` O N co U) Cl) LO 00 O M M co 0) 0) 00 0) 00 C) 00 N j It M N CO N r Co LO LO M Cl) It ?t N It ' Ca -4t (D r- U cv ?(n (n (0 (n U) wir wcr w wWw www p?? 0?? L L1LL wxm xxx LO L z 22rnw JJ 000T000 0 Ui a OJ J Ww/?w?f?w?wI{ w? 1{w/1? Z Q Z r` =LL J 00(5 : J V V V aa?a >MQZ ZyQ zzzwzzz 0 MMWM <WCL uw-Uy/wf- <tQQ?QQQ z 1 Lij a. ?Qw?wwmUz 0000000 wo wYL- 0 f=- Z z L a. oa -MzS fnfl70LL000 Z?UZ Oz~0 wo waE ?zw<5 55DF-»> O? Q OQ a w0 ? cnF- v? ?000p000 4?a?ZOQ? ?>'mmf=? ~ ? ?z c i? ? ? a?W?c LU cn?¢? <<<w<<Q U) ?w?=wax ?n zzLUUtx?-zLLla-u.tL»>0»> c cn - Q QX?W?Q50050 mQW<"==! -ONM Ln(ar-00 OO 0 00 000 t ?a j o oo U)?i P =-u.?CaoO° IL CCoEDM?:_3o ? W O w NWOWA W N ON?T tD00 OCN (D 000 rr- NN M? NNNNN ??yy ?' to 0Orr r I-r 1M C'?intq('S('Sf's(r A -rVY T TTYU Y Y YYY YYYv • E " Lance S. Forbes, Esquire Cohen Seglias Pallas & Greenhall 30 S. 17th St., 19th Fl. Philadelphia, PA 19103 215-564-1700 Commonwealth of PA In the Court of Common Pleas Philadelphia County Re: York Excavating Co. Inc. V. n/a Case No:: n/a AFFIDAVIT OF SERVICE STATE OF TEXAS COUNTY OF BEXAR ss. STEPHEN KOEPKE I, SCM 0749 , being duly sworn according to law upon my oath, depose and say, that I am not a party to this action, am over 18 years of age and have no direct personal interest in this litigation. On q i, a-1, ADA ate a 5- 04 / PM, I served the within Formal Notice by Subcontractor of Intent to File Mechanic's Lien Claim on U.S. Industrial Real Estate Investment Trust II (U.S. Industrial REIT II), Defendant. Said service was effected atc 1834 ?,L-D aw(e 'too 514q,4447o o in the following manner: F Personally served. ? Adult family member with whom said Defendant resides. Relationship is Adult in charge of Defendant's residence who refused to give name and/or relationship. Manager/Clerk of place of lodging in which Defendant resides. Agent or person incharge of Defendant's office or usual place of business. an officer of said Defendant's company. Other: pp Addl Comments: F/U c P F Un.SI Description of person process was left with: / (,STS, Sex: ?1 Skin: s Hair. W Age: 3?Height: S f Weight)70 X STEPHEN KOEPKE Signed and sworn to before me on (Print Name) SCH 0749 this 49(- day of?li 20 Dennis Richman Services for the Professional, Inc. 1500 JFK Boulevard, Suite 1706 Philadelphia, PA 19102 215.977.9393 Notary Public 11111111111111111111111111111111111 0000 GERMAINE MARTINEZ Notary PWACa Stale or Tama 1(9 W Carm*w1on 1,Ffrsa huruery 14, 2011 4311- .y FORMAL NOTIC MECg?,NiC'S LIEN CLAIM (Pursuant to 49 Pa. C.S.A. § 1501) u. S. Industrial Real Estate InveSuite 00 Trust II (U.S TO: 9830 Colonnade Boulevard, 78230-2209 San Antonio, Texas York Excavating Co., Inc. FROM: 3096 East Prospect Road York, PA 17402 Industrial REIT II) PLEASE TAKE NOTICE that York Excavating Co., Inc. ("York") furnished labor and materials to: USRE Cumberland Valley Distribution Center 675 Allen Road Carlisle, South Middleton Township, an7015 Cumberland County, Pennsy of York's contract with R.S. Mowery & Sons, Inc. as follows: in the execution rk has a principal place of business at 3096 East Prospect 1. Claimant, Yo , Road, York, PA 17402. Trust 11 ' U.S. Industrial Real Estate investment Suite 600?San is address of 9830 Colonnade Boulevard, strial BEAT The II), owneT with an Industrial Antonio, Texas 78230'2209. development to the siCe ter locate a 675 3 York furnished E labor and Cumberland Valley D Distribution . Middleton Township, Cumberland County, Pennsylvania for the construction of the USR Sons, Inc. 5 the Road, " Carlisle, Property"), South pursuant to its contract with R. • S. Mowery & Allen M0owery"), entered into on or around May 12, 4 York completed the work for which this claim is made on February 26, 2009. des ite repeated demands, remains indebted to York for an 5. Mowery, p outstanding contract balance of $343,179.04. 6. York intends to file a mechanic's lien against the Property, including the parcel of land and all improvements thereupon, which is commonly known as the USRE Cumberland Valley Distribution Center located at 675 Allen Road, Carlisle, South Middleton Township, Cumberland County, Pennsylvania 17015. COHEN, SEGLIAS, PALLAS, GREENHALL & FURMAN, P.C. Dated: July 15, 2009 By: E. PALLAS LeorCE S. FORBES ttneys for York Excavating, Inc. !1744119-vi 08423-0003 FILED-0,-- i P OF THE F l^17 !7 ' ()TARY 2009 AUG 24 PH 1: 16 CU,Nr+: ;vNT1' t'C Jh n I A $ I q . oo PO NTT` ?,r,? 3x.335 aa9 (05$ Lance S. Forbes, Esquire Cohen Seglias Pallas & Greenhall 30 S. 17th St., 19th Fl. Philadelphia, PA 19103 215-564-1700 Commonwealth of Pennsylvania Court of Common Pleas Cumberland County York Excavating Co., Inc. V. Case No.: 09-5815 MLD U.S. Industrial Real Estate Investment Trust II AFFIDAVIT OF SERVICE STATE OF TEXAS COUNTY OF BEXAR ss. I, gffPHEN KOEPK , being duly sworn according to law upon my oath, depose and o this action, am over 18 years of age and have no direct personal interest in this ION say, that I am not litigation. On at a i -20 AAK / PM, I served the within Mechanics Lien Claim on U.S. Indust al Real Estate Investment Trust II, Defendant. ?lst/?,?(t ?L?g/'??? ?y?jn?fJ ,,?'Q Z?a Said service was effected at q 83-a in the following manner: Personally served. Adult family member with whom said Defendant resides. Relationship is Adult in charge of Defendant's residence who refused to give name and/or relationship. Manager/Clerk of place of lodging in which Defendant resides. Agent o?r1 person incharge of Defendant's office or usual place of business. ft V an officer of said Defendant's company. Other: ,, // ` //,?,,? A,47-, Addl Comments: Vr'ee ?.?I?OIC&2J, loeidL Description of person process was left with: Sex: Skin: 4t; Hair: Age: 5p Height:3 )/ Weight: IIrO S'T'EPHEN K09 PKE R SGR Sign and sworn to before me on (Print Name) this day of/ ,JS T- , 200ct Dennis 'chman Services for the Professional, Inc. 1500 JFK Boulevard, Suite 1706 Philadelphia, PA 19102 215.977.9393 Notary Public ee00e99e9669 GERMAINE MARTINEZ Nohry P"A stm of Teo my comndesbn 6301 isnunry 14, 2011 RLEU- ? The PM 7 rn , "3 Y 2009 SEP --2 Psi 1.51 PCl'd 4S i L? COHEN, SEGLIAS, PALLAS, GREENHALL & FURMAN, P.C. GEORGE E. PALLAS, ESQUIRE LANCE S. FORBES, ESQUIRE Identification Nos. 54408/92380 United Plaza, 19th Floor 30 South 17th Street Philadelphia, PA 19103 (215) 564-1700 Attorneys for Claimant York Excavating Co., Inc. YORK EXCAVATING CO., INC. 3096 East Prospect Road York, PA 17402 V. U.S. INDUSTRIAL REAL ESTATE INVESTMENT TRUST II 9830 Colonnade Boulevard, Suite 600 San Antonio, Texas 78230-2209 COURT OF COMMON PLEAS CUMBERLAND COUNTY Claimant, Owner : No.: 09-5815 MLD AFFIDAVIT OF SERVICE OF NOTICE OF FILING OF MECHANIC'S LIEN CLAIM I, LANCE S. FORBES, of full age, being duly sworn according to law, upon my oath, depose and say: 1. I am an adult individual and am duly authorized to make this Affidavit on behalf of York Excavating Co., Inc. 2. On August 24, 2009, I filed a Mechanic's Lien Claim in the above- captioned matter on behalf of the Claimant, York Excavating Co., Inc. 3. On August 28, 2009, I personally caused the Mechanic's Lien Claim to be served on the Owner, U.S. Industrial Real Estate Investment Trust 11 by sending a copy of the Mechanic's Lien Claim to its principal place of business located at 9830 Colonnade boulevard #600, San Antonio, Texas 78230 via Dennis Richman, process server. 4. I received the Return Affidavit of Service in this matter on September 2, 2009. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit 46A.59 Date: P-3 ?0 ? COHEN, SEGLIAS, PALLAS, GREENHALL & FURMAN P.C. GEO LLAS, ESQUIRE CE S ORBES, ESQUIRE Attorn s for York Excavating Co., Inc. ` Lance S. Forbes, Esquire Cohen Seglias Pallas & Greenhall 30 S. 17th St., 19th Fl. Philadelphia, PA 19103 215-564-1700 Commonwealth of Pennsylvania Court of Common Pleas Cumberland County York Excavating Co., Inc. V. Case No.: 09-5815 MLD U.S. Industrial Real Estate Investment Trust II AFFIDAVIT OF SERVICE STATE OF TEXAS COUNTY OF BEXAR ss. 1, STEPHEN KOEPKE , being duly sworn according to law upon my oath, depose and Aft say, that I am not RYK76 this action, am over 18 years of age and have no direct personal interest in this litigation. On a o at r-20 AAK / PM, I served the within Mechanics Lien Claim on U.S. Industrial Real Estate Investment Trust II, Defendant. Said service was effected at q $3o ro ??/?ltL?g/?c? H?!/oiY??j ?? ?e,? 710 in the following manner: ? Personally served. ? Adult family member with whom said Defendant resides. Relationship is ? Adult in charge of Defendant's residence who refused to give name and/or relationship. ? Manager/Clerk of place of lodging in which Defendant resides. ? Agent or person incharge of Defendant's office or usual place of business. FVb &udN Sio-o 1w- an officer of said Defendant's company. ? Other: nnle / Addl Comments: f ee U'rolc%- , lteqdiL Z"7; Description of person process was left with: r Sex: Skin: 6C,7 Hair: Age: 5'0 Height: Weight: /0170 X STEPHEN KOEPKE y Signe and sworn to before me on SGH 07A_ (Print Name) this cgff_ day of v , 200 '. Dennis 'chman Services for the Professional, Inc. 1500 JFK Boulevard, Suite 1706 Philadelphia, PA 19102 215.977.9393 Notary Public AAFA15 11111111111111111111111111111111111 CD GNalery Public Slane of Teous MARTIN 2-1761 try cam ingim wpm January i4, 2011 I(ell EXNW COPY FILED i L naz PI Lrj: „ CC., _ t :.ice} Swartz Campbell, LLC By: Jonathan C. Deisher, Esquire Attorney Identification No. 67287 5100 Tilghman Street Suite 230 Allentown, Pa., 18104 (610) 395-5903 Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW YORK EXCAVATING CO., INC Plaintiff vs. CIVIL NO: 09-5815 MLD JURY TRIAL DEMANDED U.S. INDUSTRIAL REAL ESTATE INVESTMENT TRUST II Defendant ENTRY ©F APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned as attorneys for the Defendant, U.S. INDUSTRIAL REAL ESTATE INVESTMENT TRUST II, in the above matter. Respectfully submitted, Dated: September 1, 2009 SWARTZ CAMPBELL, LLC ALED-OFICE OF THE PROTH01,10TARY 2009 SEP -4 PM 3: 05 PENNY MIA Swartz Campbell, LLC By: George E. Saba, Jr., Esq. Attorney Identification No. 43526 5100 Tilghman Street Suite 230 Allentown, Pa., 18104 (610) 395-5903 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW YORK EXCAVATING CO., INC. Plaintiff vs. CIVIL NO: 09-5815 MLD JURY TRIAL DEMANDED U.S. INDUSTRIAL REAL ESTATE INVESTMENT TRUST II Defendant ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned as attorneys for the Defendant, U.S. INDUSTRIAL REAL ESTATE INVESTMENT TRUST II, in the above matter. Respectfully submitted, SWARTZ CAMPBELL, LLC By: George E. Saba, Jr., Esquire Attorney for Defendant Dated: September 1, 2009 PLED-OFFCE OP THE 10POI ONCTARY 2089 SEP -4 PM 3: 05 CUMBER LJ=;j'i'b COUNTY COHEN, SEGLIAS, PALLAS, GREENHALL & FURMAN, P.C. GEORGE E. PALLAS, ESQUIRE LANCE S. FORBES, ESQUIRE Identification Nos. 54408/92380 United Plaza, 19'' Floor 30 South 17"' Street Philadelphia, PA 19103 (215) 564-1700 Attorneys for Claimant York Excavating Co., Inc. YORK EXCAVATING CO., INC. 3096 East Prospect Road York, PA 17402 COURT OF COMMON PLEAS CUMBERLAND COUNTY Claimant, . V. : No.: 09-5815 MLD U.S. INDUSTRIAL REAL ESTATE INVESTMENT TRUST II 9830 Colonnade Boulevard, Suite 600 San Antonio, Texas 78230-2209 Owner. . PRAECIPE FOR DISCHARGE OF MECHANIC'S LIEN TO THE PROTHONOTARY: On August 24, 2009, Claimant, York Excavating Co., Inc. ("Claimant") filed of record in the office of the Prothonotary of the Cumberland County Court of Common Pleas a Mechanic's Lien Claim (the "Claim"), against the interests of U.S. Industrial Real Estate Investment Trust II, the owner of the property on which Claimant provided labor and materials, including certain site development work on the property commonly known as the USRE Cumberland Valley Distribution Center, 675 Allen Road, Carlisle, South Middleton Township, Cumberland County, Pennsylvania 17015. In consideration of the payment of 343,179.04, Claimant, by and through its undersigned counsel, hereby certifies that the Claim is released and discharged, and authorizes and directs you to discharge the Claim. Date: ) 044 /0 ! #825338-v1 08423-0003 COHEN, SEGLIAS, PALLAS, GREENHALL & FURMAN, P.C. CERTIFICATE OF SERVICE I, Lance S. Forbes, Esquire, do hereby certify that on this 21St day of October, 2009, I served a true and correct copy of the foregoing Praecipe for Discharge of Mechanic's Lien via overnight mail, postage prepaid mail upon the following: James W. Kutz, Esquire McNees Wallace & Nurick LLC 100 Pine Street Harrisburg, PA 17108 George E. Saba, Jr., Esquire Swartz Campbell LLC 5100 Tilghman Street, Ste. 230 Allentown, PA 18104 o F T82 P i TAFY 2Q5O,T21 Ph2.3 1 r? I.JC,Jj y ?..e..tJ 1 lA J? ?, " W i t $?"oU ek A, #j (dke t e hk & li-3 3 ?- 3;- 3T-9'