HomeMy WebLinkAbout09-8223
Mark D. Bradshaw, Esquire
Attorney I.D. No. 61975
Charles M. Suhr, Esquire
Attorney I.D. No. 72923
17 North Second Street
16th Floor
Harrisburg, PA 17101
(717) 234-1090
(717) 234-1099 {Facsimile)
mdb@stevenslee.com
cmc@stevenslee.com
HAMPDEN COMMONS CONDOMINIUM
ASSOCIATION and HAMPDEN OFFICE
INVESTORS, L.P.
Counsel for Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
: PENNSYLVANIA
V.
BOND-CIRCUIT IX DELAWARE
BUSINESS TRUST and ARC PROPERTIES,
INC.
No.
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims
set forth in the following pages, you must take action within twenty (20) days after this
Complaint and Notice are served, by entering a written appearance personally or by attorney and
filing in writing with the Court your defenses or objections to the claims set forth against you.
You are warned that if you fail to do so the case may proceed without you and a judgment may
be entered against you by the Court without further notice for any money claimed in the
Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or
property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH
BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A
LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE
ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY
OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
Telephone Number (717) 249-3166
SLl 963525vl /066860.00004
USTED HA SIDO DEMANDADO/A EN LA CORTE. Si usted desea defender
conta la demanda puestas en las siguientes paginas, usted tienen que tomar accion dentro veinte
(20) dias despues que esta Demanda y Aviso es servido, con entrando por escrito una aparencia
personalmente o por un abogado y archivando por escrito con la Corte sus defensas o objectiones
a las demandas puestas en esta contra usted por la Corte sin mas aviso por cualquier dinero
reclamado en la Demanda o por cualquier otro reclamo o alivio solicitado por Demandante.
Usted puede perder dinero o propiedad o otros derechos importante para usted.
USTED DEBE LLEVAR ESTE PAPEL A SU ABOGADO ENSEGUIDA. SI
USTED NO TIENE UN ABOGADO, VAYA O LLAME POR TELEFONO LA OFFICINA
FIJADA AQUI ABAJO. ESTA OFICINA PUEDE PROVEERE CON INFORMACION DE
COMO CONSEGUIR UN ABOGADO.
SI USTED NO PUEDE PAGARLE A UN ABOGADO, ESTA OFICINA
PUEDE PROVEERE INFORMACION ACERCA AGENCIAS QUE PUEDAN OFRECER
SERVICIOS LEGAL A PERSONAS ELIGIBLE AQ UN HONORARIO REDUCIDO O
GRATIS.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
Telephone Number (717) 249-3166
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Mark D. Bradshaw, Esquire
Attorney I.D. No. 61975
Charles M. Suhr, Esquire
Attorney I.D. No. 72923
17 North Second Street
16th Floor
Harrisburg, PA 17101
(717) 234-1090
(717) 234-1099 (Facsimile)
mdb@stevenslee.com
cmc@stevenslee.com
HAMPDEN COMMONS CONDOMINIUM
ASSOCIATION and HAMPDEN OFFICE
INVESTORS, L.P.
Counsel for Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
: PENNSYLVANIA
V.
BOND-CIRCUIT IX DELAWARE
BUSINESS TRUST and ARC PROPERTIES,
INC.
No.
COMPLAINT IN EQUITY
AND NOW COME PLAINTIFFS, Hampden Commons Condominium Association and
Hampden Office Investors, L.P., and bring this Complaint in Equity against Bond-Circuit IX
Delaware Business Trust and ARC Properties Inc., stating in support thereof as follows:
Plaintiff, Hampden Commons Condominium Association ("HCCA") is a
Condominium Unit Owners Association duly organized pursuant to the provisions of the
Pennsylvania Uniform Condominium Act, 68 Pa.C.S. §3101 et sea, having its principal place of
business at 5006 East Trindle Road, Suite 200, Mechanicsburg, Pennsylvania 17050.
2. Plaintiff Hampden Office Investors, L.P. ("Office Investors"), is a Pennsylvania
Limited Partnership with a principal place of business at 5006 East Trindle Road, Suite 200,
Mechanicsburg, Pennsylvania 17050. Office Investors is the owner of Unit #2 at the Hampden
Commons Shopping Center, directly adjacent to Unit #1 which is the subject of this dispute.
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3. Defendant Bond-Circuit IX Delaware Business Trust (the "Trust"), is the owner
of record of "Unit 1" as described in the Declaration. The Trust has as its registered agent The
Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890.
4. Defendant ARC Properties, Inc. ("ARC") is, upon information and belief, a New
Jersey entity, having a principal place of business at 1401 Broad Street, Clifton, New Jersey
07013. ARC Properties Inc., is a property management company that has acted, at all relevant
times, as the agent of the Trust with respect to the management of Unit #1.
A true and correct copy of HCCA's Declaration of Condominium (the
"Declaration"), as Recorded in the Cumberland County Recorder of Deeds office on July 30,
1996, at Misc. Book 526, page 569, is attached hereto and made a part hereof as Exhibit "A".
6. The units described in the Declaration are physically located at the Hampden
Commons Shopping Center on the Carlisle Pike in Mechanicsburg, Cumberland County,
Pennsylvania.
7. Unit #1 was previously occupied and operated as a "Circuit City" retail store.
However, following the Bankruptcy of that tenant, Unit 1# sat vacant for some time.
8. HCCA and Office Investors recently became aware that the Trust, through ARC,
was apparently renovating Unit #1 for the use of another tenant, H.H. Gregg, a retailer.
9. In or about late October, 2009, HCCA and Office Investors became concerned
that the renovations could involve the construction of an addition (specifically a loading dock)
which would impinge upon, and impair real property consisting of the General Common
Elements ("Commons Elements") as defined in the Declaration, and which are reserved for the
common benefit of all Unit owners
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10. The Declaration, at Section 15, page 48, sets forth very specific requirements
should a Unit owner wish to make "Alterations" to a Unit. Moreover, Section 14.02.01 provides
that no structure may be constructed outside the boundaries of any Unit, and Section 14.02.02
prohibits construction activities at this time of the year.
11. In summary, Section 15 allows Unit holders to make interior alterations as a
matter of right. However, Alterations which have the effect of expanding a Unit's footprint
must be reviewed by the Executive Board of HCCA to ensure, inter alia, that such expansion
will not negatively impact the required parking ratios for the Shopping Center as a whole.
12. Moreover, Section 15 affirmatively requires the Unit owner planning Alterations
to submit a copy of any building permit application to HCCA for informational purposes, as
well as supplying a copy of any permits actually issued to HCCA.
13. In total derogation of its responsibilities under the Declaration, and, specifically,
Section 15 thereof relating to Alterations, the Trust, through ARC, unilaterally decided to
expand the footprint of Unit #1, and began construction of a 3-bay loading dock adjacent to Unit
#1, upon land which constitutes General Common Elements.
14. No determination that this expansion would NOT impact the required parking
ratio was ever made by the Executive Board of HCCA, nor was the Board even asked to
consider this issue.
15. No permit applications or issued permits were supplied to HCCA by the Trust or
by ARC.
16. No Amendment to the Declaration authorizing a change in building area and no
amendment as required under Sections 8.02 and Section 9.02.03 were ever prepared, much less
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executed. (These sections contemplate a re-calculation of ownership percentages such that
common area changes may be uniformly and approximately assessed.)
17. To reiterate, the Trust and ARC's unilateral expansion of Unit #1 has occupied
land reserved as General Common Elements.
18. No authorization to expand Unit #1 was ever provided to the Trust or ARC by
HCCA, whether in writing, orally, or by implication.
19. Indeed, neither the Trust nor ARC ever sought such authorization.
20. Upon learning of the construction activities occurring at Unit #1, HCCA
forwarded a specific notice (the "First Notice") to the Trust, through its property manager, ARC,
on November 3, 2009, calling the Trust's attention to the requirements of the Declaration. A
true and correct copy of the First Notice is attached hereto and made part hereof as Exhibit "B".
21. Following the direction of the First Notice, the state of the construction activities
on or about November 15, 2009 were memorialized in a photograph taken on that date by
undersigned counsel, Charles Suhr, Esquire. A true and correct copy of same is attached hereto
and made a part hereof as "Exhibit C".
22. Defendants' response to the First Notice was to the effect that only internal work
was being performed on Unit #1.
23. The photograph made Exhibit "C" hereto demonstrates that Defendants'
representation as to the scope of work was false (or, at best, mistaken).
24. When no satisfactory response was received to the First Notice, HCCA, through
counsel, forwarded another notice (the "Second Notice") to the Trust through its property
manager, ARC, again calling the Trust's attention to the requirements of the Declaration and
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demanding that construction activities cease immediately. A true and correct copy of the
Second Notice is attached hereto and made a part hereof as Exhibit "D".
25. Defendants' response to the Second Notice was to direct their tenants' contractor
to stop work, yet that has not happened.
26. Following the forwarding of the Second Notice, undersigned counsel made
another site visit on the morning of November 24, 2009, and discovered that construction
activities continue unabated, despite the direction of the First Notice and Second Notice to the
Trust through ARC.
27. The state of construction activities on the morning of November 24, 2009 were
memorialized in a photograph taken on that date by undersigned counsel, Charles Suhr, Esquire.
A true and correct copy of same is attached hereto and made part hereof as Exhibit "E".
28. The photograph made Exhibit "B" hereto demonstrates that, several days
following the Second Notice, and following ARC's direction that work stop, exterior
construction work continued unabated.
29. The Trust and ARC have completely ignored their obligations under the
Declaration despite unequivocal reminders of same in the form of the First Notice and Second
Notice.
30. Indeed, as the photographs reveal, the only impact of the First Notice was
apparently to cause Defendants to quicken the pace of its unlawful construction.
31. In violation of the condominium Declaration, the Trust, through ARC, has
demolished existing parking stalls, driveways, service areas, loading areas, and has changed
access patterns, eliminating paving, reconfigured green areas, landscaping, drainage, and
impacted pervious and impervious areas.
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32. All other unit owners (other than Home Depot) have expansion areas that are
clearly marked and included in the Declaration.
33. This construction at Unit #1 exceeded the expansion area permitted as part of its
Unit per the Declaration.
34. As Unit #1's owner, the Trust was made aware, through ARC, months ago that
the Declaration would need to be amended prior to the commencement of any construction.
35. The Trust, through ARC, agreed to prepare and forward a revised Declaration but
failed to do so, yet commenced construction anyway.
36. HCCA and any Unit owner (such as Office Investors) are expressly authorized by
Section 19.02 of the Declaration to enforce the provisions of the same, including seeking
injunctive relief, as may be appropriate. See also Declaration at Section 8.06 authorizing
injunctive relief.
37. This same section authorizes HCCA or any Unit Owner to recover attorney's fees
and related costs incurred in enforcing the Declaration.
38. As the Exhibits hereto make clear, Plaintiffs have not brought this action
precipitously, and have attempted to prevail upon Defendants to honor the Trust's contractual
obligations without requesting Court intervention.
39. The Trust and ARC, however, rather than showing any cooperation, have acted in
open defiance of the Trust's obligations.
COUNTI
BREACH OF CONTRACT/ SPECIFIC PERFORMANCE
40. Plaintiff's incorporate by reference the averments of paragraphs 1-39 as through
set forth in full.
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41. The Declaration is a binding legal contract by and between Plaintiffs and the
Trust.
42. The Trust, through ARC, is in material breach of the Declaration as set forth
hereinabove, and has caused Plaintiffs substantial harm as a result.
WHEREFORE, Plaintiffs respectfully request judgment in their favor in the nature of a
decree granting specific performance of the provisions of the Declaration requiring notice to,
and consent by, Plaintiffs prior to any expansion of Unit #1, together with costs, attorney's fees,
and such other and further relief as this Court deems appropriate.
COUNT II
TRESPASS/ EJECTMENT
43. Plaintiffs incorporate by reference the averments of paragraph 1-42 as though set
forth in full.
44. Defendants have trespassed upon land belonging to HCCA through their
unauthorized expansion of Unit #1 and construction of same upon land reserved as General
Common Elements.
45. Defendants' trespass has caused Plaintiffs substantial harm as set forth herein.
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WHEREFORE, Plaintiffs respectfully request judgment in their favor in the nature of a
decree granting ejectment, together with costs, attorney's fees, and such other further relief as
this Court deems necessary.
Dated: November 25, 2009 Respectfully submitted,
STEVENS & LE
By: \-'
Mark D. Arffffs--haw, squire
Attorney I.D. No. 61975
Charles M. Suhr, Esquire
Attorney I.D. No. 72923
17 North Second Street
16th Floor
Harrisburg, PA 17101
(717) 234-1090
(717) 234-1099 {Facsimile)
mdb@stevenslee.com
cmc@stevenslee.com
10
S L 1 963 525 v l /066860.00004
VER,iFICA1'IQN
I, David Schwartz, President, Hampdon Commons Condominium Association,
(Plaintitl), verify as in the within action; that the attached Complaint in Equity is based upon the
facts of which I have personal Imowledge or information banished to me by counsel; that the
language of the document is flat of counsel and not my own; ad that the facts sot forth in the
fo+ogoing docuum a are true attd correct to the best of my knowledge, informadon and belief. I
understand that the statamenb havin we made subject to ft pensltles of 18 Pa. C.S.A. $ 4904
relating to nnsworn &Wficsbon to audwrities.
Date. November 24, 2009
MA 9dM4WJM66 oo M
L David Schwartz, President of Hampden Office Corporation, Gantral Paget of
Hampden Office Investors, L.P., Owner of Unit #2, Hampd= Commons Condominium
Association, verify that I am an officer and authorized raprnsentative of a Plaintiff in the within
action; that the attwbed Complaint in Equity is based upon the facto of which I have petsonai
lmowlodge or information fbrniahed to we by oounscl; that the language of the document is that
of co=sal and not my own; and that the facts set f arth in the foregoing document are true and
correct to the bast of my kwwledm information and behaf. I undo stand that the statements
harm are made subject to the penalties of 18 Pa. C.S.A.14904 relating to unworn falaification
to authorities.
Date: Novembor 2S, 20099
SW 9N7l*l dkVA M
Pursuant to the provisions of the
Pennsylvania Uniform Condominium Act
68 Pa. C.S. Section 3101 gj sea.
DECLARATION OF CONDOMINIUM
HAMPDEN COMMONS CONDOMINIUM
EXHIBIT
A
[J:\001 3436\01 4\declare9.Doc]
(July 1, 1996; divita_rj
Ml-?( ,800)4 \5a6) 10a9e- 569
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I? am -1 1 1, .
TABLE OF CONTENTS
Page
1. ESTABLISHMENT OF CONDOMINIUM .
2. DEFINED TERMS . . ,
3. DESCRIPTION OF CONDOMINIUM .
.
3.01. Condominium . .
. . . . . . ' ' ' ' ' ' • • 7
3.02. Condominium Documents . . • . • . . . . . ' ' ' ' 7
4. CONSTRUCTION OF CONDOMINIUM
•
4.01. Construction of Common
Elements and Units
. . . . 8
.
. 8
5. WITHDRAWAL OF the WITHDRAWABLE REAL ESTATE
6. DESCRIPTION OF UNITS .
7, COMMON ELEMENTS
•
7.01. General Common Elements . • . . • . . ' ' . • •
• . 13
7.02. Limited Common Elements
. • • • . . ' ' ' • •
. • 13
7.03. Clarification .
• • . • ' ' ' ' • • • • 14
7.04. Reserved Common Elements. • • • • • • . ' ' • • . 15
8. DETERMINATION OF PERCENTAGE INTEREST; VOTING RIGHTS
. .
8.01. Estate Acquired . .
.
17
8.02. Percentage Interest . .
• . • ' ' ' ' • • •
• • 17
8.03. No Partition
. • • • • ' ' • • • •
. • 17
8.04. Voting ? ? ?
• 19
8.05. Membership in the Association . . • . • . • • . • 19
8.06. Compliance by Owners . . . . . . ' ' ' . 19
8.07. Relocation of Unit Boundaries;.
Subdivision. of
19
Units . . . . .
1. ASSESSMENTS.
9.01. Liability for Assessments; .Lien;. Protection for 21
Mortgagee .
9.02. Common Expenses Assessments
* • . . • . . . . 21
.
9.03. Emergency Assessment * • ' ' ' • • . •
. . 23
9.04. Special Assessments
. . • . ' ' ' ' • • • •
• 25
9.05. Intentionally Deleted
• . • * ' ' ' ' ' • • •
. . . 25
. , . ' ' . ' . • • •
9.06. Collection Charges
. 26
9.07• Interest in Common Surplus
. • . . . . ' ' ' • •
. 26
9.08. Intentionally Omitted
. . . ' ' ' ' • • . 26
9.09• Interest on Past Due Assessments. • . . • ' ' • • 26
10. MAINTENANCE AND OPERATION OF GENERAL COMMON ELEMENTS
.
10.01. General Common Elements; Common Expenses
10,02. Lighting . . . . . . . , • • • •
26
26
IJ:\0013436\014\dec1are 9.Docl
(July 1, 1996; d ivita rI
12.
10.03.
Annual
10.04• Emet- Statement
10.05. pama gency Repairs .
UNIT Due to Negligence' Omission, 28
11.01 INTEN
. Unit ANCE REPAIR or Misuse• 29
11.02• ComplRepair AND OPERA TIO 29
EASEMENTS aance wi
th Laws• •N. ,
12.01• ,
Unit
12.03. p Asseclociarane s Easements
O
•
12.0 3 ation Easements -
12.05 Posted Mort Easements .
, ga
12.06. Giver tY Easement HFo der Easements' .
12.Og. 1<-Mart mentae ement Governmental Agency• .
Easement
12.09• Encroachments
2 Freestanding
13• 1 •10. MiscejlaneSagn Rights•
B-13-01.. WBv_.r ADMINISTRATION, . .
13,02, ws , POWER
13.03 . EXecu acts ' • • OF ATTORNEY •.
14. tave Boa
rd
COVENANTS r RES
14.0 _
1. Transfe TRICTIONS rability AND AGR
14.02 EEMENTS
14.03. - Building Rest - ric*a
Ion s
14.05: Obstructions Standards* Drain •
14.076, , parkinge14.08• Prohibit' USe' .
14 , 19Build * t Uses Of ••General -Co
- mmon E1
15. 0 • AddataIng onal Facade ns fients. '
ALTERATIONS, ed USes. '
16. 16 IFICATION
.01.
16 Inde AND LIABILITY
.02, iaba l ification INSURANCE
16.03• ? ity Insu
16• asualt ns Insurance
rance 131
16.05_ Self Insurance
lacy
anket 16.06. Policies PGeneral*
17• DAMAGE O y
17.01. UR DESTRUCTION
nits and Li..
• .
17.02. pamage a° d DeStrudt cOmfiOn 'Element •.
ton - General Co' mmon •Eleme • '
nts
29
29
30
31
31
33
34
35
35
35
35
35
37
37
38
38
38
38
39
39
39
41
43
43
43
44
44
46
47
48
50
50
50
51
52
52
53
54
54
54
s?
s
a
1J:100 13 43 610141declare9, poc(
(July 1, 1996; divita_r)
18. EMINENT DOMAIN . . . . . . . . . . . . . . . . . 55
18.01. Award • . • • . . . . . 55
18.02. Restoration of Units and Limited Common
Elements . . . . . . .
19. ENFORCEMENT BY ASSOCIATION; UNIT OWNERS . . . . . • . 56
19.01. Remedies on Default . . . . . . . . . . 56
19.02. Other Remedies Preserved . . . . . . . . . . . . 58
20. MISCELLANEOUS . .
20.01. . . . . . . . . . . . . . . . .
Run with Land . . . . . . 58
. . 58
20.02. Amendment of Declaration; By-Laws . . . . . . . 58
20.03. Termination
20.04. . . . . . . . . . . . . . . . .
Officers and Directors . . . . . . . . . . . • . 59
• . 59
20.05. Captions . . . . .
20.06. . . . . . . . . . . .
Utilities . • 60
20.07. . . . . . . . . . . . . . . . . . .
Taxes . . . . . . . . . . . . . . . . . . • . 60
60
20.08. Notices . .
20.09. . . . . . . . . . . . . .
Notices to Association . . . . . . . . . . . 61
• • 62
20.10. Consent . . . . . . . . . . . . . . . . . 62
20.11. No Waiver
20.12. . . . . . . . . . . . . .
Remedies Cumulative . . . . . . . . . . . . . 63
63
20.13. Several Liability; No Principal/Agent; No
Partnership . . . . . . . . . . . . . . . • • 63
20.14. Interpretation of Declaration . . . . . . . • • 64
20.15. No Gift or Dedication . . . . . . . . . ' • . • 64
20.16. Subordination
20.17. . . . . . . . . . . . . . . . .
Enforcement; Governing Law . . . . . . . . • . . 64
• . 64
20.18. Exhibits
20.19. . . . . . . . . . . . . . . . .
Validity 65
20.20. . . . . . . . . . .
Rule Against Perpetuities . . . . . . . • • . . 65
• • 65
20.21. Special Declarant Rights . . . . . . . . • • . • 65
20.22. Assigns . . . . . .
20.23. . . . . . . . . .
Delegation . . . . 67
. . . . . . . . . . . . . . . 69
1JA00 1 3 43 610 1 41declare9.Doc1
!July 1, 1996; divita rl
Exhibits
„All "
"A
- Legal Description of Real Estate
"C-1" - „C_5 It Site
_ Plan
I'D" Preliminary Unit Plans
,'E„ - Plats and Plans
„F„
I F" - Articles of Incorporation
- Undivided Percentage Interest
11x11 - Condominium Documents
„I„ - Withdrawable Real Estate
„J„ - Rules and Regulations
„K„ - Common Expense Allocation
„L„ - Assignment
"M91 - Outside Sales Area Plan
"N„ - Pylon Sign Plans
- Protected Areas
IJA00 1 3436M 41declare9.Doci
IJUIV 1, 1996; divita rJ
DECLARATION OF CONDOMINIUM
OF
HAMPDEN COMMONS CONDOMINIUM
1. ESTABLISHMENT of CONDOMINIUM
1.01. Declaran ; Property; County; Name. CAPITOL
PRODUCTS CORPORATION, a Pennsylvania corporation, owner in fee
simple of certain real estate located in Hampden Township,
Cumberland County, Pennsylvania, as more specifically described
in Exhibit "A" and Exhibit H attached hereto ("Real Estate") and
OLYMPIC REALTY AND DEVELOPMENT CORPORATION, the equitable owner
of the Real Estate (both collectively hereinafter referred to as
"Declarant"), hereby jointly submit the Real Estate, including
all easements, rights and appurtenances thereto and any
improvements erected thereon to the provisions of the
Pennsylvania Uniform Condominium Act, 68 Pa. C.S. Section 3101 g
c=. (the "Act"), and hereby creates a flexible, non-residential
condominium, to be known as HAMPDEN COMMONS CONDOMINIUM
("Condominium").
1.02. Easements and Licences: Including among the
easements, rights and appurtenances referred to in Section 1.01
above are recorded easements and licenses set forth on Exhibit
"G" annexed hereto, and the Real Estate is hereby submitted to
the Act.
2. DEFINED TERMS.
The terms used herein and the By-Laws shall have the
following meanings unless the context clearly indicates
otherwise, and all definitions set forth in the Act are
incorporated in this Declaration by reference and the definitions
set forth in this Declaration shall be used in conjunction
therewith, unless the context indicates to the contrary:
2.01. "Act" or "Condominium Act" refers to the Pennsylvania
Uniform Condominium Act, 68 Pa. C.S. Section 3101 gt sea,, as
amended.
2.02. Intentionally Omitted.
2.03. "Annual Assessment" means a Unit's share of the
anticipated Common Expenses or Limited Expenses for each calendar
year as reflected in its budget for such year, collected on a
monthly basis.
1 _ (J:100134361014kleclarel O.Docl
[July 18,1996; divita_r)
2.04. "Articles of Incorporation" shall mean the Articles
of Incorporation of Hampden Commons Condominium Association,
Inc., a copy of which is attached hereto and made a part hereof
as Exhibit "E," as same may be amended, modified, supplemented,
restated or replaced from time to time.
2.05. "Association" means the Unit Owners Association of
the Condominium organized under Section 3301 of the Act, its
successors and assigns, and shall be known as the HAMPDEN COMMONS
CONDOMINIUM ASSOCIATION.
2.06. "Association Expenses" shall mean Common Expenses
incurred by the Association pursuant to Section 9.02.01(b) and
of this Declaration.
2.07. "Board" or "Executive Board " shall mean the body,
regardless of name, designated in the Declaration to act on
behalf of the Association.
2.08. "Building Area" shall mean that portion of the
Condominium Property identified as "Horizontal Unit Boundaries"
on the Plats and Plans annexed hereto as Exhibit D, and shall
include any area identified on the Plats and Plans as "Future
Expansion Area" or Future Building Area."
2.09. "Bylaws" means the document providing for the
governance of the Association pursuant to Section 3306 of the
Act, as such document may be amended from time to time.
2.10 "Common Elements" means all portions of the
Condominium other than the Units.
2.11. "Common Expenses" means expenditures made or
liabilities incurred by or on behalf of the Association relating
_to the Condominium or the Association or as is otherwise
permitted by the Act (other than expenses incurred in connection
with the operation, maintenance, repair, improvement and
replacement of Limited Common Elements). The sum of the
Association Expenses plus the Maintenance Expenses and reserves
equals Common Expenses.
2.12. "Common Expense Liability" means the liability for
Common Expenses allocated to a Unit in accordance with the Act
and this Declaration.
2.13. "Common Utility Lines" shall mean the utility lines
described in Section 12.03.03 of this Declaration and utility
lines which serve all the Units, beginning at a point five (5)
feet outside the exterior walls of a Unit Building, to the point
at which the public or private utility provider maintains such
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utility lines and/or facilities.
2.14. "Condominium" means the Condominium described in
Section 1.1 above.
2.15. "Condominium Documents" shall mean the documents and
instruments enumerated on Exhibit G.
2.16. "Condominium Propertvll shall mean (I) Real Estate;
(ii) all improvements now or hereafter constructed in, upon, over
or through the Real Estate; (iii) all privileges or appurtenances
pertaining to or belonging to the Real Estate; and (iv) the
entire entity created by the execution and recording of this
Declaration.
2.17. "Declarant" means the Declarant described in Section
1.1 above, and after conveyance of any one or more of the "Units"
to any one or more "Olympic Controlled Entity" (as hereafter
defined in Section 2.36) Declarant shall thereafter be deemed to
mean the Olympic Controlled Entity(ies), or any person or entity
to which an Olympic Controlled Entity assigns, transfers or
conveys the whole of its interest as Declarant.
2.18. "Declaration" means this document, as the same may be
amended from time to time.
2.19. "Default Rate" shall mean a rate equal to the lesser
of two (2%) percent above the prime lending rate of Wachovia Bank
of Georgia or the maximum rate permitted by law.
2.20 "Executive Board" shall mean the five (5) Directors
elected by the Members of the Association pursuant to Article V
of the By-Laws which shall constitute the governing body of the
Association.
_ 2.21. "Final Unit Plans" shall mean the final architectural
plans for each Unit as described in Section 8.02.
2.22. "Floor Area" shall mean the number of square feet of
total floor area of a Unit, as measured from the exterior face of
any exterior wall to the center line of any party wall. Floor
Area shall not include any mechanical penthouse, exterior and
unheated truck or unloading areas, mezzanine area not used for
retail sales of goods, the upper levels of any multiple-deck
storage area, exterior trash storage areas or sidewalk area. For
purposes of calculating the Floor Area of a building, any
permanent merchandising area or publicly accessible merchandise
storage area adjacent to a building (other than temporary sales
and/or merchandising areas permitted pursuant to Section 7.04
hereof) shall be included in the Floor Area of that Unit.
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2.23. "Force Majeure" shall mean any event that is beyond
the control of any Unit Owner, including the Declarant, such as,
by way of illustration but not limitation, strikes, lockouts,
natural catastrophes, governmental restrictions, acts of public
enemy, civil commotion, fire or other casualty.
2.24. "Future Building Area" shall mean those portions of
the Condominium Property identified as "Future Building Area" or
"Future Expansion Area" on the Plats and Plans.
2.25 "General Common Elements" shall mean those portions
of the Condominium Property defined and described in Section
7.01.
2.26. "Identifying Number" means the distinct number that
identifies each Unit as shown on the Plats and Plans.
2.27 "Improved Unit" shall mean a Unit upon which a Unit
Building has been constructed and as to which Unit Building a Use
and Occupancy Certificate has been issued by governmental
authority. For a Unit to be "improved", it is not necessary that
a Unit Building or Buildings aggregating the full Floor Area (as
set forth in Exhibit B) be constructed.
2.28. "Index" shall mean the Consumer Price Index for All
Urban Consumers, All Cities, All Items (1982-84=100), issued and
published by the Bureau of Labor Statistics of the United States
Department of Labor. In the event that the Index ceases to use a
1982-84 base rate of 100 as the basis of calculation, or if a
substantial change is made in the terms or number of items
contained in the Index, then the Index shall be adjusted to the
figure that would have been arrived at had the manner of
computing the Index in effect on the date of the recording of
this Declaration not been altered. If the Index is not
available, the term Index shall mean (i) a successor or
substitute index to the Index, appropriately adjusted; or (ii) if
such a successor or substitute index is not available or may not
lawfully be used for the purposes herein stated, then a reliable
government or other nonpartisan publication which evaluates the
information theretofore used in determining the Index, as
selected by the Executive Board.
2.29. "Limited G
Condominium Property s,
one Unit but less than
enjoyment, benefit and
occupants of such Unit
on the Plats and Plans
7.02 hereof.
Ammon Elements" means those parts of the
arving exclusively one Unit, or more than
all Units, as an appurtenance thereto, the
use of which are reserved to the lawful
or Units and which are further described
as Limited Common Elements and in Section
2.30. "Limited Expenses" means expenses incurred in
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connection with the operation, maintenance, repair, improvement
and replacement of any Limited Common Element, or any portion
thereof.
2.31. "Maintenance Expenses" means all expenditures made
and liabilities incurred by the Association pursuant to Section
10.01 of this Declaration.
2.32. "Member" shall mean each record owner of title to a
Unit.
2.33. Intentionally omitted
2.34. "Mortgage" shall mean a mortgage given for full value
received in an arm's length transaction between a Unit owner and
a third party.
2.35. Intentionally Omitted
2.36. "Olympic Controlled Entity" shall mean (a) Olympic
Realty and Development Corporation, or any firm, corporation,
partnership, association or other business entity which directly
or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with Olympic Realty and
Development Corporation, or any successor to Olympic Realty and
Development Corporation by merger, consolidation or operation of
law or the purchaser of all or substantially all of the assets of
Olympic Realty and Development Corporation, or (b) any entity
which owns one or more of the Units in which David J. Schwartz,
or his spouse and/or any of the descendants of his grandparents
or the grandparents of his spouse and/or any trusts for the
benefit of any of the foregoing, either individually or
collectively, directly or indirectly, have a majority voting
interest therein, provided however, in the event H.C. Holdings
Limited Partnership and one or more other such entity or entities
owns one or more Units, H.C. Holdings Limited Partnership shall
be deemed the Olympic Controlled Entity, or (c) any of the
foregoing individuals which own one or more of the Units.
2.37. "Percentage Interest" means the percentage of the
undivided ownership interest in the Common Elements appurtenant
to each Unit.
2.38 "Plats and Plans" means the Plats and Plans annexed
hereto as Exhibit D and made a part hereof, and recorded in the
Office of the Cumberland County Recorder of Deeds in Subdivision
Plan Book at Pages as the same may be amended
from time to time.
2.39 "Posted Mortgage(s)" means any mortgage, deed of
trust or other deed to secure debt which is a lien upon a Unit
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T ?
and the undivided interest in the Common Elements appurtenant
thereto, or the conveyance of title to a Unit to a transferee who
leases the entire Unit back to the transferring Unit Owner,
pursuant to a lease whereby the tenant assumes all of the
obligations of the Unit Owner in what is commonly referred to as
a "Sale-Leaseback Transaction", the name and address of the
holder and servicer (if any) of which has been submitted to the
Executive Board. A holder of a Posted Mortgage is referred to
herein as a "Posted Mortgagee".
2.40 Intentionally Omitted
2.41 "Protected Area" means the Unit owned by the
specified Unit Owner, the Limited Common Elements appurtenant
thereto and those limited portions of the General Common Elements
identified on Exhibits "N-1" through "N-5" as "Unit (No. ]
Protected Area,"
2.42 "Rules and Regulations" means such rules and
regulations as are promulgated by the Association from time to
time with respect to various matters relating to the use of all
or any portion of the Condominium, which either supplement or
elaborate upon the provisions of this Declaration or the Bylaws.
The Initial Rules and Regulations of the Condominium are annexed
hereto as Exhibit "I".
2.43. "Shopping Center" means the shopping center to be
known as Hampden Commons consisting of those initial Units
depicted on the Plats and Plans on which are or will be
constructed Unit Buildings and the General Common Elements and
the Limited Common Elements.
2.44. "Special Assessment" means an individual Unit's share
of any assessment made by the Association in addition to the
Annual Assessment.
2.45. "Special Declarant Rights" means all of the rights,
privileges, easements and obligations of "Declarant" under this
Declaration and the By-Laws, including, without limitation, those
rights, privileges and easements inuring to the benefit of
Declarant set forth in Section 20.21 of this Declaration. Except
for the right of Declarant to withdraw the Withdrawable Real
Estate or convert the Withdrawable Real Estate pursuant to
Article 5 hereof, the Special Declarant Rights established under
this Declaration shall terminate and expire upon the earliest of
(x) the date on which Declarant no longer owns a Unit in the
Condominium, or (y) the date on which initial construction of the
Units is completed, or (z) the seventh (7th) anniversary of the
recording of this Declaration.
2.46. "Unit" shall mean a part of the Condominium Property
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r
described and designated for independent ownership and
more particularly described in Article 6 and shown on
and Plans, but shall not be deemed to include any part
Limited Common Elements situated within or appurtenant
Anything contained in this Declaration to the contrary
notwithstanding, any and all halls, corridors, lobbies,
stairways, elevators, entrances, exits and other means of access
to a particular Unit are deemed to be part of such Unit and shall
not be General Common Elements.
2.47. "Unit Building" means the building(s) erected on any
Unit.
2.48. "Unit Owner" shall mean any record owner, whether
one or more persons or entities, of the fee simple title to a
Unit, from time to time. "Unit Owner" shall also include any
tenant of all of a Unit to whom the Unit Owner has assigned its
Unit Owner's Rights in accordance with Section 20.22 hereof. In
the event the whole of the interest of any Unit Owner in and to
any Unit is assigned, transferred or conveyed, but a new
possessory interest is created in the transferring Unit Owner by
way of leasehold or similar possessory interest simultaneously
with the assignment, transfer or conveyance of such interests, or
in the event such Unit Owner shall convey its interest in its
Unit or any part thereof by deed of trust or other security
instrument as security for indebtedness, then none of the powers
or obligations conferred upon such Unit Owner pursuant to this
Declaration shall be assigned, transferred or conveyed with the
interest assigned, transferred or conveyed by the transferring
Unit Owner, but all of the powers and obligations herein referred
to shall remain in such transferring Unit Owner so long as it
retains any possessory interest in and to said Unit, provided
however, in the event any Posted Mortgagee becomes the owner of a
possessory interest in and to a Unit, such Posted Mortgagee shall
have all powers and obligations herein granted a Unit owner;
2.49. "Unit Utility Lines" shall mean the utility lines
described in Section 12.01.05.
2.50. "Withdrawable Real Estate" shall mean the Real
Estate more particularly described on Exhibit H annexed hereto.
3. DESCRIPTION OF CONDOMINIUM
3.01. Condominium. The Condominium Property will include
the Real Estate initially consisting of approximately 32.25 acres
in the aggregate and initially five (5) Units, together with all
appurtenant site improvements, all as shown on the Plats and
Plans and Exhibits 11C-1" through 11C-5" and includes all rights,
privileges, easements, roads, waters and appurtenances thereto
use, as
the Plats
of the
to a Unit.
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belonging or appertaining. Each Unit is designated by specific
numbers (i•e., 1, 2, 3) as shown on the Plats and Plans. The
number of original Units may be increased by one (1) Unit if the
Withdrawable Real Estate is converted to a Unit pursuant to
Article 5.
3.02. Condominium Documents. The Condominium Documents are
binding upon all future owners of, and run with, the Condominium
Property. Accordingly, the Condominium Property is subject to
the terms and conditions of the Condominium Documents. Each Unit
owner, by becoming an owner of a Unit, shall automatically be
benefitted by the rights, remedies, privileges and easements
afforded to an owner under the Condominium Documents and shall
also be subject to the burdens, and comply with the obligations
and duties, imposed upon such an owner. Each Unit Owner shall
include in every lease, license or other agreement for the use of
a Unit, or any portion thereof, a provision specifically
subjecting such lease license or occupancy agreement to the terms
of the Condominium Documents.
4. CONSTRUCTION OF CONDOMINIi1M.
4.01. Construction of Common Elements and Units.
4.01.01. Declarant, or a successor to Declarant,
shall cause the construction of any off-site improvements and the
General Common Elements required pursuant to the Condominium
Documents, and each Unit Owner, at its sole cost and expense,
shall be responsible for the construction of any Unit Building
upon its Unit and the Limited Common Elements appurtenant
thereto. However, nothing in this Declaration shall require
Declarant to construct a Unit Building on the Withdrawable Real
Estate.
4.01.02. All construction shall be performed in a
good and workmanlike manner in accordance with applicable law,
the Condominium Documents and the applicable provisions of this
Declaration (including, without limitation, Exhibits "B" and "C-1
through "C-511), subject to permissible changes as hereafter set
forth in Sections 4.01.03 and 4.01.04.
4.01.03. Declarant shall have the right, from time
to time until the Unit Buildings on the Unit or Units owned by
the Declarant have been constructed, and without the consent of
any other person or entity, to make changes to the Preliminary
Unit Plans for any Unit owned by Declarant, and, to the extent
resulting from changes to the Preliminary Unit Plans owned by
Declarant, to Exhibit B and the Plats and Plans, and to amend
this Declaration accordingly, provided that (i) such change is
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within the Building Area and/or Future Building Areas as shown on
the Plats and Plans, (ii) such changes do not change any Unit or
Limited Common Elements appurtenant to any Unit which is not
owned by Declarant; (iii) such changes do not affect access to
U.S. Route it or Brondle Boulevard; (iv) such changes shall not
result in there being a violation of the parking ratio set forth
in Section 14.06 (or any greater parking ratio required by law)
or a material reduction of the number of parking spaces shown on
the Site Plan; (v) Declarant complies with and obtains any
approval required under applicable laws; (vi) such changes shall
not increase or decrease the undivided percentage interest in the
Common Elements, or the "Common Expense Allocation" (as
hereinafter defined in Section 9.02.03 and as shown on Exhibit J)
or the Common Expense Liability of any Unit which is not owned by
Declarant by more than ten percent (10%) of the applicable
percentage shown on Exhibits F and J (for example, if a Unit's
Common Expense Allocation is 18.0%, such Unit's Common Area
Expense Allocation may not be increased to more than 19.8%);
(vii) such changes shall not alter the visibility of or access to
any Unit which is not owned by Declarant; (viii) such amendment
does not increase the number of original Units; (ix) such
amendment does not change, alter or infringe upon the Protected
Area of any Unit Owner other than Declarant without such Unit
Owner's prior consent; (x) such amendment does not diminish the
voting strength in the Association allocated to any Unit not
owned by Declarant; (xi) such amendment does not diminish or
restrict the uses for which any Unit not owned by Declarant may
be occupied and/or operated, or (xii) such amendment does not
conflict with Section 3219 of the Act. To the extent Declarant
exercises its rights under this Section 4.01.03, then Declarant
shall prepare an amendment to this Declaration relating to the
foregoing, which amendment shall contain, among other things,
revised Exhibits "F" and "J" which shall be revised in accordance
with the principles set forth in this Section 4.01.03 and
Sections 8.02 and 9.02.03, respectively. Every amendment shall
be recorded in the Office of the Recorder of Deeds of Cumberland
County and shall be indexed in the name of the Condominium in
both the grantor and grantee index. Declarant or the
Association shall send a copy of such recorded amendment to each
Unit Owner and the Association, as well as the holder of any
Posted Mortgage provided that Declarant or the Association has
been first provided with the name and address of such holder, for
informational purposes only.
4.01.04. In connection with the initial construction
of the Units and the Limited Common Elements appurtenant thereto,
any Unit owner shall have the right to change the footprint of
its Unit and/or Limited Common Elements appurtenant thereto as
shown on the Plats and Plans and Exhibits "B" or "C-1" through
"C-5 " provided that (i) such change is within the Building Area
and/or Future Building Areas, (ii) such changes are otherwise in
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compliance with this Declaration, all applicable law and the
Condominium Documents to the extent applicable; (iii) such
changes shall not result in there being a violation of the
parking ratio set forth in Section 14.06 (or any greater parking
ratio required by law); and (iv) such Unit Owner has obtained the
unanimous consent of the owners of each other Unit only to the
extent any such change would reduce the number of parking spaces
located outside the Building Areas and Future Building Area; or
(v) adversely affect access to another Unit or materially and
adversely change any Building Area or Future Building Area. To
the extent the foregoing are obtained, then such Unit Owner shall
follow the procedure set forth in Sections 8.02 and 9.02.03, as
applicable, for amending this Declaration accordingly, which
amendment must be executed, recorded, and certified by any
officer of the Association designated for that purpose or, in the
absence of such designation, by the President of the Association
and recorded in the Office of the Recorder of Deeds of Cumberland
County and shall be indexed in the name of the Condominium in
both the grantor and grantee index. Declarant or the
Association, as applicable, shall send a copy of such recorded
amendment to the other Unit Owners and the Association, as well
as the holder of any Posted Mortgage provided that Declarant or
the Association, as applicable, has been first provided with the
name and address of such holder, for informational purposes only.
4.01.05. Each Unit Owner shall prepare (or cause to
be prepared) the plans of its Unit and Limited Common Elements
appurtenant to its Unit described in Section 8.02, and such
certifications as are required pursuant to Sections 8.02 and
9.02.03, as applicable, upon the completion of its initial
construction.
5. WITHDRAWABLE REAL ESTATE.
5.01 Reservation.
5.01.1 Anything contained in this Declaration or the
By-Laws to the contrary notwithstanding, Declarant hereby
reserves the right and option, until the seventh (7th)
anniversary of the recording of this Declaration, from time to
time, to withdraw the Withdrawable Real Estate from the
Condominium in compliance with Section 3212 of the Act, without
the consent of any Unit Owner or Posted Mortgagee and without any
requirement that any other real estate be withdrawn, added or
converted, except as set forth in Section 3212 of the Act;
provided however that the Withdrawable Real Estate shall not
exceed the area described as such on Exhibit "H" hereto. This
option to withdraw the Withdrawable Real Estate may be terminated
prior to such anniversary only upon the filing by Declarant of an
amendment to this Declaration. No portion of the Withdrawable
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.. y
Real Estate may be withdrawn if any Unit Buildings exist thereon
so there will be no change in the Percentage Interests by reason
of such withdrawal.
5.01.02 Anything contained in this Declaration or the
By-Laws to the contrary notwithstanding, Declarant hereby
reserves the right and option, until the seventh (7th)
anniversary of the recording of this Declaration, from time to
time, to convert all or any portion of the Withdrawable Real
Estate to a Unit and Limited common Elements in compliance with
Section 3211 of the Act, without the consent of any Unit owner or
Posted Mortgagee. This option to convert the Withdrawable Real
Estate to a Unit may be terminated prior to such anniversary only
upon the filing by Declarant of an amendment to this Declaration.
The convertible Real Estate shall not exceed the Withdrawable
Real Estate shown on the Plats and Plans and described on Exhibit
H. Declarant makes no assurances as to the location of any Unit
Building or other improvements to be constructed on the
Withdrawable Real Estate, except that all Unit Buildings will be
constructed with the Future Building Area and shall otherwise
comply with all the requirements and limitations set forth in
this Declaration.
5.01.03 In the event any Withdrawable Real Estate is
withdrawn, none of the benefits (including, without limitation,
the Special Declarant Rights set forth in Section 20.21 hereof)
and restrictions of this Declaration shall apply to the
Withdrawable Real Estate and Declarant and its successors shall
be free to develop and use the same without restriction, except
in the event that the Withdrawable Real Estate, or any portion
thereof is dedicated for public use, in which event Declarant may
grant a continuing, non-exclusive easement over the roadways from
time to time existing on the condominium Property for the
purposes of ingress and egress to the Withdrawable Real Estate.
To the extent Declarant grants such easement, the Association
shall cause an officer of the Association designated for that
purpose to execute an instrument granting such easement and the
Association shall record same in the office of the Recorder of
Deeds of Cumberland County.
5.02 If Declarant elects to exercise either of such
rights, Declarant is hereby authorized to prepare, execute, and
record an amendment to this Declaration, in accordance with
Section 3219 of the Act and comply with Section 3210 of the Act
(relating to plats and plans). Declarant shall send a copy of
the recorded amendment to the Association and each Unit Owner, as
well as to the holder of any Posted Mortgage provided that
Declarant has been first provided with the name and address of
such holder, for informational purposes only.
5.03 Unless and until a Unit Building is constructed upon
the Withdrawable Real Estate, the Withdrawable Real Estate shall
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have no undivided.percentage interest in the Common Elements of
the Condominium, nor any obligation for the payment of any
Assessment, nor any voting rights, including, without limitation,
the right to consent to an amendment of this Declaration. Unless
and until a Unit Building and Limited Common Elements, together
with General Common Elements comparable to the other General
Common Elements of the Condominium, are constructed upon the
Withdrawable Real Estate any and all obligations under this
Declaration applicable to the Withdrawable Real Estate
(including, without limitation, the obligation to pay all
property taxes, special assessments and other charges imposed by
any taxing authority real estate; to pay all other costs and
expenses in connection therewith; and the construction of General
Common Elements to be incorporated into the Condominium) shall be
performed by Declarant, at Declarant's sole cost and expense, and
shall be performed in accordance with this Declaration, the By-
Laws, the Condominium Documents and applicable law. Declarant
makes no assurances as to location of the Unit Buildings or other
improvements on the Withdrawable Real Estate, except that all
buildings will be constructed wholly within the Future Building
Area. Any Unit Building and any Common Elements to be
constructed on the Withdrawable Real Estate will be compatible in
quality, size, materials, architectural style and structure type
with Unit Buildings, Common Elements and Units on the remainder
of the Condominium Property.
6. DESCRIPTION OF UNITS
6.01 The dimensions, area and location of all of the Units
within the Condominium Property are shown graphically on the
Plats and Plans attached hereto and on Exhibits "B" and "C-1"
through"C-5."
6.02 Each Unit is intended to consist of: (a) the volumes
of cubicle space enclosed by and including the exposed outermost
surface of the perimeter and exterior walls, roofs, ceilings and
the under-surface of the lowermost floor thereof, inclusive of
vents, doors, windows and such other "structural elements" (as
hereafter defined in this Article 6) that ordinarily are regarded
as enclosures of space; (b) subject to clause (ii) hereinbelow,
all structural elements (including, without limitation, interior
structural dividing walls and the space occupied by such
structural elements); (c) the volumes of cubicle space enclosed
by and including the exposed outermost surface of the perimeter
fence or other enclosure constituting any outside garden center
appurtenant to the physical structure of a particular Unit as
shown on Exhibit "B"; and (d) all improvements of any kind or
nature installed within or affixed to such space described in
"(a)" - "(c)" above and all finishing materials, signs and the
like affixed to, or installed as part of, the physical structure
of a particular Unit, whether or not located within such enclosed
space. Where two or more Units share a common wall, the boundary
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of each Unit shall be the center line of the party wall.
However, the term "Unit" shall not include: (i) pipes, wires,
conduits or other public or private utility lines or
installations which serve or are intended or designed for the
service of more than one Unit, or (ii) common or shared footing
and/or foundations, columns, girders, beams, supports, roof and
other structural members (collectively referred to as "structural
elements" for the purpose of Articles 6 and 7), or portions of
the buildings containing any Unit or any other property of any
kind, which are not removable without jeopardizing the soundness,
safety or usefulness of any other Unit.
7. COMMON ELEMENTS
The term "Common Elements" when used throughout this
Declaration shall mean both General Common Elements and Limited
Common Elements.
7.01. General Common Elements. The term "General Common
Elements" shall mean all improvements, appurtenances and
facilities on or servicing the Condominium Property which are not
part of the Units and are not part of the Limited Common
Elements, some of which are graphically shown on Exhibit "B."
More specifically, the General Common Elements shall include, but
not be limited to, the following:
7.01.01. The portions of the Real Estate that are
not part of the Units and are not part of the Limited Common
Elements, including, without limitation the Withdrawable Real
Estate.
7.01.02. Those portions of the Real Estate and
improvements thereon which are intended for, or are available
for, common use by all Unit Owners, their tenants, their
subtenants and the customers and business invitees of the
foregoing parties including, without limitation, roads; lanes;
drives and driveways; parking areas and spaces; exterior lighting
not attached to a Unit; entrances to the Condominium Property
(but not to individual Units), means of ingress and/or egress,
curb cuts and passageways; perimeter sidewalks, walkways and
paths; pylon sign structures; directional signs; storm and
sanitary sewer mains, detention and storm water drainage
facilities, lines and appurtenances; Common Utility Lines; pipes,
wires, conduits or other public or private utility lines or
installments or fixtures, mechanical systems or other equipment
which service all of the Units; landscaped areas (including,
without limitation, any and all trees, shrubs, yards and
gardens); sidewalk amenities (such as, by way of example only,
planters, benches, trash cans and ash urns); or other right which
may now or hereafter be granted for the benefit of Declarant, the
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Real Estate, Unit Owner(s), Association and/or others, including,
without limitation, the K-Mart Easements (as hereinafter
defined).
7.01.03. All other elements of the buildings
(including, without limitation, structural elements) constructed
or to be constructed on the Real Estate, of common use or
necessary to the soundness, safety or usefulness of the
Condominium Property, other than those that are a part of a Unit
or Limited Common Elements appurtenant to a Unit.
7.01.04. All tangible personal property owned by the
Association and required exclusively for the operation,
maintenance and administration of the Condominium Property.
7.02. Limited Common Elements. The term "Limited Common
Elements" shall mean the portions of the Common Elements which
are hereby set aside and reserved for the restricted use of a
certain Unit or Units to the exclusion of the balance of the
Units, some of which are graphically shown on the Plats and
Plans. The Limited Common Elements which are set aside and
reserved for the restricted use of a particular Unit shall
include by way of description and not by way of limitation, the
following:
7.02.01. The Real Estate directly under a Unit, the
air space directly above a Unit and other Limited Common Elements
appurtenant to a Unit.
7.02.02. All Unit Utility Lines and other pipes,
wires, conduits, fixtures, mechanical systems and other
equipment, or other public or private utility lines or
installments or fixtures, mechanical systems or other equipment
which service some (but not all) of the Units (as to the Units
they serve).
7.02.03. The structural elements to the extent same
are not removable without jeopardizing the soundness, safety or
usefulness of some (but not all) of the other Units, in which
event, such structural element shall be deemed to be a Limited
Common Element appurtenant to the affected Units, and each such
Unit Owner shall have the same rights to the portion of such
structural element above, below or to the side of its Unit as it
would have for Limited Common Elements appurtenant to its Unit
reserved for its exclusive use, subject to the provisions of
Section 11.01 respecting the "sharing" of certain Limited Common
Elements and provided further that such Unit Owner shall not do
anything that would impair the structural integrity of such
Limited Common Elements. If the provisions of this Section
7.02.03 shall result in the inability to determine the volume or
cubicle of space as contemplated by Article 6 (for example, if
-14- [J:10013436\0141declare9.Doc]
[July 1, 1996; divita_r]
the roof cannot be removed because it jeopardizes the soundness,
safety or usefulness of another Unit), then the bottom, side or
top of the Unit, as applicable, shall be an imaginary plane along
and coincident with the interior most surface of such structural
element.
7.02.04. Truck loading docks; compactor, condenser
and/or transformer pads; dumpster enclosures; canopies and pallet
storage areas which are reserved for the restrictive use of one
or more, but less than all of the Units, as set forth on the
Plats and Plans.
7.02.05. Shopping cart storage areas, car stereo
parking (which may be marked for the exclusive use of the Unit
owner's customers, invitees and patrons) and customer pick-up
areas which are reserved for the restrictive use of a particular
Unit or Units, as set forth on the Plats and Plans.
7.02.06. The sidewalks immediately abutting each
Unit.
7.03. Clarification. In the event any Unit Owner or the
Association seeks clarification as to classification of any
structure or improvement as part of a Unit, part of the General
Common Elements or part of the Limited Common Elements
appurtenant to any Unit, then such Unit Owner may request the
Association to hire an independent engineer, who shall be
licensed in the Commonwealth of Pennsylvania, to make such
clarification in accordance with the descriptions set forth in
Sections 6.01, 6.02, 7.01 and 7.02, which clarification and
classification shall be binding upon all Unit Owners and the
Association provided that the Executive Board receives an opinion
from independent legal counsel retained by the requesting Unit
Owner (or by the Association as a Common Expense) to the effect
that any proposed corrective amendment is permitted under Section
3219(f) of the Act, and the Executive Board of the Association
shall then be authorized to prepare and execute an amendment to
this Declaration setting forth such clarification, which
amendment need only be signed by the Association (and need not be
signed, consented to or approved by any other person or entity)
and recorded in the Office of the Recorder of Deeds of Cumberland
County in order to be effective. The Association shall send a
recorded copy of such amendment to the Unit Owners, as well as
the holder of any Posted Mortgage provided that the Association
has been first provided with the name and address of such holder,
for informational purposes only. The costs incurred by the
Association in connection with such clarification (including,
without limitation, reasonable attorneys' fees and the cost of
the engineer) shall be paid by the requesting Unit Owner.
[JA0013436V 41dec1are9.Doc1
-15- (July 1, 1996; divRa_r]
7.04. Reserved Common Elements. The Executive Board shall
have the power in its discretion to: (i) designate certain
General Common Elements as a "Reserved Common Element;" and (ii)
grant rights to use the Reserved Common Elements on an exclusive
basis for a specific time period to the Association and/or to
any, or less than all of the, Unit Owner(s). In addition to
Reserved Common Elements that may be designated by the Executive
Board, that portion of the parking area identified on the Site
Plan and on the Plats and Plans as "Unit [No. ] Outside Sales
Area," when the occupant of such Unit conducts outside sales in
its respective Outside Sales Area from time to time is hereby
designated as a "Reserved Common Elements" for the sole benefit
of the respective Unit Owners, and their respective tenants,
subtenants or other occupants. Anything contained in this
Declaration to the contrary notwithstanding, (x) the Unit
Owner(s) to which a Reserved Common Element is designated may use
said Reserved Common Element only in connection with the
operation of the business being conducted within its Unit; (y)
the Unit Owner to which a Reserved Common Element is designated
shall be responsible for repairing any damage to the Reserved
Common Element occurring during or as a result of such Unit
Owner's exclusive use thereof; (z) the Unit Owner(s) to which a
Reserved Common Element is designated shall be responsible for
removing any trash and debris from such area during the period of
its use of same; (xx) the benefitted Unit Owner(s) shall not
erect any permanent structures on such areas; (yy) the
designation of a General Common Element as "Reserved" shall not
be construed as a sale or disposition of that General Common
Element; and (zz) such Reserved Common Element may not be used
for sales or any other purpose if prohibited by applicable law or
if same would result in there being a violation of the parking
ratio set forth in Section 14.06 or the inability of Declarant to
construct a Unit Building upon the Withdrawable Real Estate. A
Unit Owner's use of the Reserved Common Element designated to its
Unit shall be limited to not more than four (4) events each year,
one being conducted during each season (i.e. summer, winter,
spring and autumn), and no such event shall exceed one (1) week
in duration, except that the sale of Christmas trees by the owner
or tenant of Unit 5 may continue for a period not exceeding six
(6) weeks. The Unit Owner to which a Reserved Common Element is
designated shall indemnify, defend and hold each other Unit Owner
(and such other Unit Owner's respective tenants, subtenants,
licensees and Unit occupants) and the Association harmless
(except negligent or tortious acts or omissions of any such other
Unit owners or the Association, or their respective agents,
tenants, subtenants, licensees, Unit occupants, contractors or
employees) from and against any and all claims, actions, suits,
judgments, damages, liabilities and expenses (including, without
limitation, reasonable attorneys' fees) in connection with loss
of life, personal injury and/or damage to property arising from
or out of any occurrence in or upon the Reserved Common Element
-16- [J:\0013436\0141declare9.Doc]
(July 1, 1996; dWa rj
during such Unit owner's exclusive use thereof.
8. DETERMINATION OF PERCENTAGE INTEREST; VOTING RIGHTS,
8.01. Estate Acquired. Each Unit Owner shall have such an
estate therein as may be acquired by grant, by purchase or by
operation of law, including an estate in fee simple; and shall
acquire as an appurtenance thereto an undivided percentage
interest in the General Common Elements of the Condominium, which
shall not be divisible from the Unit to which it appertains, as
set forth in Exhibit "F" attached hereto and made a part hereof.
Anything contained in this Declaration to the contrary
notwithstanding, the Common Elements and each Unit owner's
undivided percentage interest therein is subject to change by way
of amendments to this Declaration pursuant to Sections 4.01.03,
4.01.041 8.02, 8.07, and 18.02 and Articles 5 and 15.
8.02. Percentage Interest. The undivided percentage
interest of each Unit in the Common Elements is based upon the
number of square feet of Floor Area within each Unit as it
compares to the total number of square feet of Floor Area of all
the Units. Each percentage has been adjusted to permit it to be
expressed as a finite number to avoid an interminable series of
digits. The initial undivided percentage interests for each Unit
are set forth in Exhibit "F", and are based upon the preliminary
plans for each of the Units as set forth in Exhibits "C-1" to "C-
5" respectively ("Preliminary Unit Plan Exhibits"). The final
plans of the Units and their respective Limited Common Elements
will not be established as of the date of the recording of this
Declaration. Accordingly, each Unit Owner shall cause to be
prepared by an architect or engineer licensed in the Commonwealth
of Pennsylvania, and forwarded to Declarant, plans of the Units
and their respective Limited Common Elements marked to show "as
built" conditions (provided same are acceptable to the Cumberland
County Recorder of Deeds as "Final Unit Plans", or if
unacceptable, then "as built" plans made by actual measurement
and observation) (collectively, "Final Unit Plans"), which Final
Unit Plans shall bear the certification of such architect or
engineer that such plans constitute a correct representation of
the improvements described. Each Unit Owner shall also cause to
be prepared and forwarded to Declarant together with the Final
Unit Plans, a certification from such architect or engineer
("Floor Area Certification") as to the number of square feet of
Floor Area contained in the applicable Unit(s). If a Unit Owner
elects not to construct its Unit, the Floor Area of such Unit
shall be deemed to remain as shown on Exhibit F. Declarant shall
cause to be prepared final plans marked to show "as built"
conditions (provided same are acceptable to the Cumberland County
Recorder of Deeds as "Final General Common Element Plans", or if
1 ?- [J10013436\014Wec1are9.Doc]
[July 1, 1996; dWv r]
unacceptable, then "as built" plans made by actual measurement
and observation) for the General Common Elements ("Final General
Common Elements Plans") and a revised site plan marked to show
"as built" conditions (provided same are acceptable to the
Cumberland County Recorder of Deeds as a "Final Site Plan", or if
unacceptable, then "as built" plans made by actual measurement
and observation) ("Final Site Plan"), which shall contain the
aforesaid certifications; however, the Final Site Plan shall
still show the Future Building Area. Declarant, or after the
sale of the first Unit, the Association, shall then prepare an
amendment to this Declaration and the Plats and Plans in
accordance with Section 3215 of the Act which amendment shall
become effective upon the date of recording in the Office of the
Recorder of Deeds of Cumberland County. Such amendment shall
revise the Plats and Plans, replace the site plan attached to
this Declaration as Exhibit "B" with the Final Site Plan and
replace the plans attached to this Declaration as Exhibits "C-1"
through "C-5 " with the Final Unit Plans and Final General Common
Elements Plans. Such amendment shall also revise Exhibit "F"
based upon the actual number of square feet of Floor Area within
each Unit as it compares to the total number of square feet of
Floor Area of all Units based upon the Floor Area Certifications,
adjusted to permit it to be expressed as a finite number to avoid
an interminable series of digits. Declarant, or the Association
as the case may be, shall send a copy of the recorded amendment
to each Unit Owner, as well as the holder of any Posted Mortgage
provided that Declarant has been first provided with the name and
address of such holder, for informational purposes only.
Anything contained in this Declaration to the contrary
notwithstanding, an amendment to the Declaration contemplated by
this Section 8.02 above shall not be permitted with respect to
any Final Unit Plan which materially differs from the applicable
Preliminary Unit Plan Exhibits if such difference is not
otherwise permitted under this Declaration or this Declaration is
not otherwise amended pursuant to another provision hereof. Each
Unit Owner shall follow the procedure set forth in this Section
8.02 if the Unit Owner is permitted under this Declaration to
change the footprint of or number of square feet of Floor Area in
its Unit, to enclose any unenclosed portion of its Unit by four
(4) walls and a roof or to subdivide its Unit pursuant to the
applicable provisions of this Declaration (including, without
limitation, Section 8.07 and Article 15), except that the Final
Unit Plan(s) and Floor Area Certification(s) shall be forwarded
to the Association, and the Association shall prepare, at the
cost of the Unit Owner(s) requiring such amendment, and the
Association shall sign the corresponding amendment to this
Declaration, which amendment shall be signed by the Association
and shall be effective upon recording in the office of the
Recorder of Deeds of Cumberland County. Such amendment shall
revise the Plats and Plans and the Final Unit Plans for the
"expanded" or enclosed portion of such Unit, and shall revise
[J:10013436ZI 4\deciare9. Doc[
-18- [July 1, 1996; divita r]
Exhibit "F" but only if the number of square feet of Floor Area
of the Unit is increased (i•e•, if the number of square feet of
Floor Area of the Unit is decreased, there shall be no change to
Exhibit "F"). The Association shall send a copy of the recorded
amendment to each Unit owner, as well as the holder of any Posted
Mortgage provided that the Association has been first provided
with the name and address of such holder, for informational
purposes only.
8.03. No Partition. Subject to the provisions of this
Declaration, the By-Laws, the Articles of Incorporation and the
Act, (a) the Common Elements shall remain undivided and no Unit
Owner(s) shall bring any action for partition or division
thereof, and (b) the undivided percentage interest in the Common
Elements shall not be separated from the Unit to which it
appertains and shall be deemed conveyed or encumbered with the
Unit even if such interest is not expressly mentioned or
described in the conveyance or other instrument.
8.04. Voting. Each Member shall be entitled to cast one
(1) unweighted vote for each one thousand (1,000) square feet of
Floor Area within the Unit to which such Member holds title in
all matters relating to the Association and/or the Condominium
with respect to which a Member is not excluded from voting by the
terms of this Declaration or the By-Laws (including, without
limitation, the election of the Executive Board subject to the
applicable provisions of the By-Laws).
8.05. Membership in the Association. Upon acceptance of a
deed to a Unit, each Unit Owner shall automatically become a
Member of the Association, and shall be a Member for so long as
it shall hold legal title to its Unit, and shall be subject to
all provisions of this Declaration, the By-Laws, the Articles of
Incorporation and the Condominium Act. Any tenant of all of a
Unit to whom the Unit Owner has assigned its Unit Owner's Rights
in accordance with Section 20.22 hereof shall be a Member for the
duration of the term of such tenant's lease for such Unit or such
earlier period of time agreed to by the Unit Owner and the
tenant.
8.06. Compliance by Owners. Each Unit Owner or Occupant of
a Unit shall comply with, and shall assume ownership or occupancy
subject to laws, rules and regulations of governmental
authorities having jurisdiction over the Condominium Property,
this Declaration, the By-Laws and the Articles of Incorporation.
Failure to comply with any of the foregoing shall be grounds for
commencement of an action for the recovery of damages or for
injunctive relief, or both, by Declarant, the Association or any
Unit Owner (subject to the provisions of Section 19.01), in any
court or administrative tribunal having jurisdiction against any
person, firm or corporation violating or attempting to violate or
-19- [J:10013436\0141dedare9.Docl
[July 1, 19%; divita r[
' circumvent any of the aforesaid, and against any Unit Owner, to
enforce any lien created by this Declaration or any covenant
contained in this Declaration. Failure by Declarant, the
Association or any Unit Owner to enforce any covenant contained
in this Declaration for any period of time shall in no event be
deemed a waiver or estoppel of the right to thereafter enforce
the same.
8.07. Relocation of Unit Boundaries; Subdivision o nits.
Upon compliance with the requirements of Section 20.02 herein and
Sections 3214 and 3215 of the Act, relocation of boundaries
between Units and subdivision of Units will be permitted. A Unit
may be subdivided into two or more smaller Units, and with
respect to a Unit owned by Declarant, into two or more smaller
Units, Common Elements, or a combination of units and common
elements in accordance with Section 4.01.03 hereof. The maximum
number of Units that may be created by a subdivision of a Unit is
three (3); provided, however, no new Unit shall be comprised of
less than fifteen thousand (15,000) square feet of Floor Area and
no new Unit may be created if the total number of Units in the
condominium exceeds nine (9) Units. If a Unit Owner desires to
subdivide its Unit, then such Unit Owner shall prepare a revised
Final Unit Plan and revised Floor Area Certification for the
subdivided Unit and the Limited Common Elements appurtenant
thereto setting forth an identifying number to each Unit created,
and reallocate the Common Element Interest, votes in the
Association and Common Expense liability formerly allocated to
the subdivided Unit to new Units in any reasonable manner
prescribed by the owner of the subdivided Unit. The Owner of the
subdivided Unit shall forward same to the Association, together
with evidence that it has received any required governmental
approvals, in accordance with the procedures set forth in
Sections 8.02 and 9.02.03, as applicable, and the Association
shall then prepare (at the cost of the Unit Owner which is
subdividing its Unit), execute and record an appropriate
amendment to this Declaration pursuant to Sections 8.02 and
9.02.03, as applicable. Such amendment must be signed by the
Owner of the Unit to be subdivided and the Association and
recorded in the Office of the Recorder of Deeds of Cumberland
County in order to be effective. A recorded copy of any such
amendment shall be provided to the Declarant and other Unit
Owners, as well as the holder of any Posted Mortgage provided
that the Association has been first provided with the name and
address of such holder, for informational purposes only. Any
subdivision of a Unit shall not change the undivided percentage
interest in the Common.Elements or the Common Expense Allocation
for any other Unit.
_20_ V\0013436\01 Mdeclare9.Doc]
(July 1, 1996; divita r]
9.
9.01. Liabilitv for Assessments: Lien: Protec
9.01.01. Every Unit Owner, by acceptance of a deed
or other conveyance for a Unit, whether or not it shall be so
expressed in any such deed or other conveyance, shall be deemed
to covenant and agree to pay to the Association all assessments
(including, without limitation, any installments thereof) and all
fines and other charges and expenses (collectively "Assessment")
contemplated in this Declaration or in the By-Laws or as
otherwise permitted under the Condominium Act (including, without
limitation, the assessments contemplated by Sections 9.02, 9.03,
9.04, 9.05 and 9.06).
9.01.02. No Unit Owner may waive or otherwise avoid
liability for Common Expenses by non-use of the Common Elements.
9.01.03. Each Assessment (including, without
limitation, any sums accelerated under Section 9.08) shall (a) be
the joint and several personal obligation of such Unit Owner at
the time when the Assessment fell due, and of each subsequent
record owner of such Unit, except as otherwise contemplated by
the Condominium Act, and (b) constitute a lien upon the Unit
against which it was made, in favor of the Association or any
Unit Owner expending its funds to cure another Unit Owner's non-
payment of its Assessment pursuant to Section 19.01. Such lien
shall be prior to other liens except the lien of a first Posted
Mortgage upon the Unit and as provided by Section 3315(b) of the
Act. Such lien shall be effective from and after receipt of
notice by the defaulting Unit Owner of non-payment of the
assessment and expiration of a period of ten (10) days thereafter
to cure such default. The recording of this Declaration
constitutes record notice and perfection of the lien. Liens for
unpaid Assessments may also be reduced to a personal money
judgment against the Unit Owner or may be foreclosed by suit
brought in the name of the Association or the Unit Owner
asserting the lien in the same manner as a contract action or a
foreclosure of a mortgage on real property. Suit to recover a
money judgment for unpaid Assessments may.be maintained without
waiving the lien securing the same. In the event of the
foreclosure of such lien, the Association and the Unit owners
shall have the power to bid on the Unit at foreclosure sale and
to acquire, hold, lease, mortgage and convey such Unit, subject,
however, to the terms of the Posted Mortgage encumbering same.
9.01.04. Subject to the provisions of Section
9.01.05 to the extent applicable, upon any voluntary conveyance
[J:\001 3436\01 4\declareg.Doc]
-21- [July 1, 1996; divita_r]
of a Unit, the grantor and grantee of such Unit shall be jointly
and severally liable for all unpaid Assessments pertaining to
such Unit duly made by the Association or accrued up to the date
of such conveyance, without prejudice to any right of the grantee
to recover from the grantor any amounts paid by the grantee, but
the grantee shall be exclusively liable for those accruing while
it is the Unit Owner. Any Unit Owner or any purchaser of a Unit
prior to the completion of a voluntary sale may request from the
Association a statement showing the amount of unpaid Assessments
pertaining to such Unit, and the Association shall provide such
statement within ten (10) days after request therefor. The
Association shall be entitled to charge any Unit Owner or
purchaser of a Unit a reasonable fee for the preparation of said
statement. The holder or prospective holder of a Posted Mortgage
or other lien on any Unit may request a similar statement with
respect to such Unit, with any reasonable charge therefor to be
paid by the borrower under the Posted Mortgage. Any person other
than the Unit Owner at the time of issuance of any such statement
shall be entitled to rely thereof and its liability shall be
limited to the amounts set forth in such statements. From time
to time, the Association may request a statement from each Unit
Owner, and a Unit Owner may request a statement from the
Association, that, except as may be otherwise specified, the
Association or the Unit owner, as applicable, is not in default
under any of its obligations hereunder, and, as to the
Association's statement, such other reasonable information as may
be reasonably requested by the holder of a Posted Mortgage.
9.01.05. If a holder of a Posted Mortgage or other
purchaser of a Unit acquires title to such Unit as a result of a
foreclosure of a Posted Mortgage or by deed or assignment in lieu
of foreclosure, such acquirer of title, its successors and
assigns, shall not be liable for the Assessments imposed by the
Association pertaining to such Unit or chargeable to the former
Unit Owner which became due prior to acquisition of title as a
result of the foreclosure or by deed or assignment in lieu of
foreclosure; however, such acquirer of title shall be liable for
those Assessments accruing while it is the Unit Owner (including,
without limitation, installments thereof which were not yet due
and payable by the prior Unit Owner). Such unpaid Assessments
shall, at the option of the Association, be deemed to be a
Special Assessment collectible from all of the remaining Unit
Owners, including such acquirer, its successors and assigns.
Nothing contained herein shall be deemed to release the former
Unit Owner from its obligation to pay such unpaid Assessments.
Further, this Section 9.01.05 may not be amended without the
written consent of seventy-five percent (75%) of the holders of
Posted Mortgages on the balance of the Units.
-22- [JA0013436\0141declare9.0ocl
[July 1, 1996; dWa_r]
9.02. Common Expenses Assessments.
9.02.01. It shall be an affirmative and perpetual
obligation of the Executive Board to determine assessments for
Common Expenses in an amount not more than sufficient to meet the
requirements of the Association's annual budget established
pursuant to Section 9.02.02, including (a) supervise, administer,
operate, manage, insure, repair, replace and maintain the General
Common Elements as contemplated by the Declaration, the By-Laws,
the Condominium Documents and as required by the Condominium Act,
(b) administer, operate and maintain the Association and (c)
enforce the covenants, restrictions and other provisions
contained in this Declaration The amount of monies for common
Expenses deemed necessary by the Executive Board and the manner
of expenditure thereof shall be a matter for the discretion of
the Executive Board, reasonably exercised.
9.02.02 The Executive Bc
consent and approval, at least sixty
beginning of each calendar year, estz
anticipated Common Expenses for such
Expenses for the prior calendar year,
reasonably anticipated additional or
and increases in cost. If a budget f
made for a new calendar year, then tY
to be in the amount of the last prior
budget for common Expenses is made b?
Association shall use reasonable effc
repair the General Common Elements of
accordance with the budget. Notwiths
the contrary, for so long as that pox
Elements shown and designated on the
and shall, by unanimous
(60) days before the
blish a budget of the
year based upon Common
subject to adjustment for
non-recurring expenditures
or Common Expenses is not
e budget shall be presumed
year's budget until a new
the Executive Board. The
its to operate, maintain and
the Condominium in
tanding anything herein to
Lion of the General Common
Site Plan as "Unit 5
ria.tna.cnance area- is mainzai.nea unaer separate agreement ("Unit 5
Maintenance Agreement") between the Association and the Unit
Owner of Unit 5 (or its designee), any Director of the Executive
Board nominated for election by the Unit Owner of Unit 5 (or its
designee) shall be omitted from votes of the Executive Board
establishing the budget for Maintenance Expenses for the
supervision, administration, operation, management, insurance,
repair, replacement and maintenance of those portions of the
General Common Elements not included within the Unit 5
Maintenance Area. The unanimous vote of the Executive Board for
such purposes shall be determined without reference to the
existence of the vote(s) of any Director elected to the Executive
Board who was nominated for election by the Unit Owner of Unit 5
(or its designee). Nothing herein shall be deemed or construed
to relieve the Unit Owner of Unit No. 5 from the obligation to
pay Common Expense Assessments which are not Maintenance Expenses
covered by the Unit 5 Maintenance Agreement, and the Director of
the Executive Board nominated for election by the Unit Owner of
Unit 5 (or its designee) shall be included in votes of the
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[July 1, 1996; divita_r]
Executive Board establishing the budget for Maintenance Expenses
for which the Unit Owner of Unit No. 5 remains obligated to pay
Common Expense Assessments.
9.02.03. The Common Expenses assessment levied
against each Unit shall be allocated among all Units within the
Condominium based upon the number of square feet of Floor Area
within each Unit as it compares to the total number of square
feet of Floor Area of all the Units ("Common Expense Allocation")
as shown on Exhibit "J," as same may be redetermined from time to
time pursuant to the applicable provisions of this Declaration.
The same principles of Section 8.02 shall apply with respect to
revising Exhibit "J" and amending this Declaration. Accordingly,
should the number of square feet of Floor Area change upon the
completion of each Unit or if the Unit Owner, pursuant to this
Declaration, changes the footprint of or number of square feet of
Floor Area in its Unit, encloses any unenclosed portion of its
Unit by four (4) walls and a roof, or subdivides its unit,
Exhibit "J" shall be revised if the effect of any of the
foregoing shall be to increase the number of square feet of Floor
Area of a Unit (i•e•, if the number of square feet of Floor Area
of the Unit is decreased, there shall be no change to Exhibit
"J").
9.02.04. Assessments shall be payable in equal
monthly installments in advance, on or before the first day of
each calendar month, or in such other installments as may be
established by the Executive Board.
9.02.05. If an assessment for Common Expenses is not
made for a new calendar year, then an assessment shall be
presumed to have been made in the amount of the last prior year's
assessment, and any installments of such annual assessments shall
be due upon each installment payment date until a new assessment
for Common Expenses is made by the Executive Board, at which time
the Unit Owner shall pay any deficiency between the new
assessment and the amount paid by such Unit Owner based upon the
prior year's assessment. Until an assessment is made for the
calendar year commencing on January 1 immediately following the
recording of this Declaration, each Unit Owner shall pay on
account thereof, an amount equal to $1.00 multiplied by the
number of square feet of Floor Area in its Unit, in equal monthly
installments on or before the first day of each month commencing
on the date on which a Unit Owner acquires title to its Unit,
pro-rated for any period less than a full calendar month, subject
to adjustment at such time as an assessment is made. The
aforesaid amount of $1.00 does not include the amount of any real
estate taxes assessed against the General Common Elements.
9.02.06. Anything contained in this Declaration or
the By-Laws to the contrary notwithstanding, if prior to the
-24- P:\001 3436V 41declare9.13oc]
(July 1, 1996; divita_r]
Units being assessed as separate tax parcels real estate taxes
are assessed against the condominium Property as a whole, or if
based on an amendment to the Act, real estate taxes are assessed
against the General Common Elements, then such real estate taxes
shall be assessed as a Special Assessment in the same manner as
Common Expenses by allocating such real estate taxes among all
Units within the condominium in accordance with each unit's
respective Common Expense Allocation as shown on Exhibit "J,"
which is based upon the Floor Area of each Unit, as same may be
redetermined from time to time pursuant to the applicable
provisions of this Declaration.
9.03. Emergency Assessment. In the event the assessment
for Common Expenses proves to be insufficient for an immediate
need or emergency (such as, by way of example only, if the
Association expends monies to exercise its self-help rights under
Sections 14.03.03 or 19.01.01, in emergency or non-emergency
situations) or there is a shortfall, the budget and assessment
for Common Expenses may be amended at any time by unanimous
consent and approval of the Executive Board, and the Executive
Board may, by unanimous consent and approval, impose an
"Emergency Assessment," which shall be allocated among the Unit
Owners in the same manner as the assessment for Common Expenses.
The determination of an immediate need or emergency shall be in
the discretion of the Executive Board, reasonably exercised.
9.04. Special Assessments. In addition to the other
assessments authorized by this Declaration or the By-Laws, the
Executive Board may from time to time, by unanimous consent and
approval, assess a "Special Assessment" for the purpose of
defraying, in whole or in part, the cost of acquiring or
constructing any new capital improvement (as opposed to the cost
of any reconstruction, repair or replacement of an existing
Common Element which shall be deemed part of Common Expenses)
reasonably required to maintain the General Common Elements to
the standards of first class shopping centers in the Harrisburg,
Pennsylvania market area. The due date(s) of any Special
Assessment, or any installment(s) thereof, shall be fixed in the
resolution authorizing the Special Assessment. Notwithstanding
anything herein to the contrary, for so long as that portion of
the General Common Elements shown and designated on the Site Plan
as "Unit 5 Maintenance Area" is maintained under a Unit 5
Maintenance Agreement, any Director of the Executive Board
nominated for election by the Unit Owner of Unit 5 (or its
designee) shall be omitted from votes of the Executive Board
establishing Special Assessments which related solely to those
portions of the General Common Elements not included in the Unit
5 Maintenance Area. The unanimous vote of the Executive Board
for such purposes shall be determined without reference to the
existence of the vote(s) of any Director elected to the Executive
Board who was nominated for election by the Unit Owner of Unit 5
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[July 1, 1996; divita-r]
(or its designee). Nothing herein shall be deemed or construed
to relieve the Unit Owner of Unit No. 5 from the obligation to
pay Special Assessments which are not Maintenance Expenses
covered by the Unit 5 Maintenance Agreement, and the Director of
the Executive Board nominated for election by the Unit Owner of
Unit 5 (or its designee) shall be included in votes of the
Executive Board establishing special Assessments for which the
Unit Owner of Unit No. 5 remains obligated to pay. The Special
Assessment shall be allocated among Unit Owners in the same
manner as the assessment for Common Expenses.
9.05. INTENTIONALLY DELETED.
9.06. Collection Charges and Fees. Any and all fines, late
charges, costs of collection (including, without limitation,
reasonable attorneys' fees), interest on unpaid Assessments at
the Default Rate, or any other sums required to be paid by a Unit
Owner to the Association pursuant to the provisions of this
Declaration, the By-Laws or the Articles of Incorporation, shall
be deemed to constitute a part of the delinquent assessments and
shall be collectible as such; provided, however, that in
accordance with the By-Laws, no fine may be imposed until after
notice and an opportunity to be heard has been provided to the
Unit Owner in default.
9.07. Interest in Common Surplus. The budget of the
Association shall segregate Limited Expenses from General Common
Expenses and surplus shall be credited and applied as provided in
Section 3313 of the Act.
9.08. INTENTIONALLY OMITTED
9.09. Interest on Past Due Assessments, All Assessments
(or any installment thereof) which have not been received by the
Association within ten (10) days after receipt by the Unit Owner
of written notice from the Association that such Assessment (or
installment thereof) was not received on or before the due date
shall bear interest from the date due at the Default Rate.
10. MAINTENANCE AND OPERATION OF GENERAL COMMON ELEMENTS.
10.01. General Common Elements: Common Expenses, After
substantial completion of the initial construction of the General
Common Elements, the Association shall supervise, administer,
operate, manage, insure, repair, replace and maintain (or cause
the supervision, operation, management, insurance, repair,
replacement and maintenance of) the General Common Elements in
good repair and in a safe, sound, and functional condition, free
from refuse, rubbish, and dirt and in conformity with all
governmental laws, ordinances, rules and regulations and
(J A0013436\0141declare9. Docj
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consistent with the maintenance of a first-class shopping center.
The fees, costs and expenses incurred by or on behalf of the
Association in order to accomplish (or cause to be accomplished)
the foregoing, as.well as the other obligations of the
Association as elsewhere provided in this Declaration (such as,
by way of example only, Section 9.02.01), shall be "Maintenance
Expenses." Maintenance Expenses shall include, but not be
limited to, fees for permits, licenses and approvals required
with respect to the General Common Elements after substantial
completion of the initial construction of the General Common
Elements; the cost of financing, purchasing and/or renting
machines, equipment and tools used solely in providing the
foregoing services; salaries, wages and other compensation for
full time, on-site personnel providing the foregoing services (or
if such personnel are not full time on-site, a reasonable
allocation of salaries, wages and other compensation based upon
the percentage of time such personnel devotes to functions at the
condominium); insurance premiums for policies carried by the
Association; payments to outside contractors and personnel in
connection with providing the foregoing services; the cost of
supplying utilities to the General Common Elements and the
aforesaid Common Areas and Facilities; management fees-paid to
outside or related entities (as long as such fees are
commercially competitive); the cost of maintaining, repairing
and/or replacing, and providing electricity to, any pylon signs,
monuments and other directories and signs which benefit more than
one occupant; the cost of providing security; and such other
costs and expenses incurred by the Association in supervising,
operating, managing, insuring, repairing, replacing and
maintaining the General Common Elements as required by law, this
Declaration, the By-Laws and the Condominium Documents, and costs
and expenses incurred by the Association under the K-Mart
Easements. The Association may enter into one or more contracts
for the operation, management, insuring, repair and maintenance
of the General Common Elements or any part or parts thereof. Any
contracts for Common Expenses entered into by the Association
shall provide for the rendering of such services at commercially
competitive rates. No contract for the operation, management,
insuring, repair and maintenance of the General Common Elements
or any part or parts thereof shall (other than the initial
Maintenance Agreements between the Association and Home Depot
U.S.A., Inc. and between the Association and Olympic Realty and
Development Corporation) shall have a term in excess of one (1)
year. All rebates and discounts received by the Association
shall be deducted from Common Expenses.
10.02. Lighting. Lighting facilities and fixtures are to be
designed, installed and metered so that there are separate meters
or measuring devices to measure the electricity consumed by the
Unit Owners in their respective units and the Limited Common
Elements appurtenant to such Units. The Association shall keep
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(or cause to be kept) the General Common Elements lighted and
open to the customers of the Condominium Property seven (7) days
a week at all times after dusk and thereafter during the "Normal
Lighting Hours" which shall be determined by the Executive Board,
from time to time, in its sole discretion. Initially, the Normal
Lighting Hours shall be from dusk until 11:00 p.m., Monday
through Saturday, and from dusk until 7:00 p.m. Sunday. The
Executive Board shall promptly notify each Unit Owner of any
change in such Normal Lighting Hours. Upon request of any Unit
Owner, the Association shall keep the General Common Elements
lighted and open for as long as such Unit Owner shall request,
provided such Unit owner shall pay its share of additional costs
incurred, if any, by the Association during such additional hours
(which shall be deemed to be an Assessment against such Unit and
its Unit Owners) including, but not limited to, the cost of such
after-hours lighting and security, which share shall be
determined on a pro rata basis with all other Unit Owners open
later than Normal Lighting Hours, based upon the number of square
feet of Floor Area of such Units.
10.03. Annual Statement.
10.03.01. Within sixty (60) days after the end of
each calendar year, the Association shall furnish to each Unit
Owner a statement, in reasonable detail, of Common Expenses for
such year ("Annual Statement"), which shall be prepared in
accordance with generally accepted accounting principles
consistently applied. The Annual Statement shall be certified by
the Association as being accurate and shall include a calculation
of such Unit's share thereof (as allocated pursuant to Section
9.02). If any Unit owner shall have made an overpayment on
account of its assessment for Common Expenses for the applicable
year, such Unit owner shall receive a credit in that amount
against its Common Expenses assessment for the immediate
following year. Within thirty (30) days after receipt of the
Annual Statement, each Unit Owner shall pay any deficiency
between the amount paid by the Owner during the preceding
calendar year and the amount of such Unit's share as shown on the
Annual Statement.
10.03.02. The Association shall maintain, or cause
to be maintained, in accordance with generally accepted
accounting principles consistently applied, for a period of three
(3) years following the end of the calendar year to which they
relate, adequate books and records of the receipts and
disbursements in connection with its obligations pursuant to
Section 10.01. Each Unit Owner (and its authorized
representatives and authorized tenant(s)) shall have the right,
after not less than ten (10) days' prior written notice, to
inspect or audit such books and records at any reasonable time
and to make copies thereof. If there is an overcharge by the
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Association, then the Association shall promptly reimburse such
Unit Owner (or its authorized representatives and authorized
tenant(s)) for any overpayment paid by such Unit owner to the
Association, and if such overcharge is in excess of three percent
(3%) of the actual amount of such Unit Owner's share, then the
Association shall promptly reimburse such Unit Owner for the
reasonable cost of its audit, together with interest on the
amount of the overpayment at the Default Rate. If there is an
undercharge, then such Unit Owner shall, within thirty (30) days,
pay the Association for such underpayment.
10.04. Emergency Repairs. No repairs of those portions of
the General Common Elements shown and designated on the Plats and
Plans as "Christmas Restricted Area" or construction within the
Christmas Restricted Area, other than day to day maintenance and
emergency repairs, shall be performed during the period October 1
through December 31 of any given year without the unanimous
written consent of the Unit Owners of Units 1, 2, 3 and 4. No
repairs of those portions of the General Common Elements shown
and designated on the Plats and Plans as "Spring Restricted Area"
or construction within the Spring Restricted Area, other than day
to day maintenance and emergency repairs, shall be performed
during the period March 1 through June 1 of any given year
without the consent of the Unit Owner of Unit 5.
10.05. Damage Due to Negligence, Omission or Misuse. If,
due to the negligent act or omission of or misuse by a Unit Owner
(whether authorized or unauthorized by the Unit Owner) or its
tenant or other occupant, or any of their respective contractors,
licensees, employees or agents, damage shall be caused to the
Common Elements, or to a Unit(s) owned by others, or maintenance,
repairs or replacements shall be required which would otherwise
be a Common Expense, such Unit Owner shall pay for such damage as
a remedial Assessment, and, in addition, be liable for any
damages, liabilities, costs and expenses (including, without
limitation, reasonable attorneys' fees) caused by or arising out
of such circumstances.
11. UNIT MAINTENANCE, REPAIR, AND OPERATION.
11.01. Unit Repair.
11.01.01. Each Unit Owner shall maintain, repair
and/or replace (or cause to be maintained, repaired or replaced)
its respective Units and the Limited Common Elements appurtenant
to its respective Units in a safe, clean, tenantable and sightly
condition and in good order and repair and in compliance with all
laws, this Declaration and the By-Laws. To the extent that any
Limited Common Element is appurtenant to and for use of more than
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[July 1, 1996; dWa r]
any one (but not all) Units, then the Unit Owners owning the
Units which "share" such Limited Common Element shall be jointly
and severally responsible for the construction, installation,
maintenance, repair or replacement of such Limited Common
Elements. The Association shall have no obligation whatsoever to
maintain, repair and/or replace any Unit or the Limited Common
Elements appurtenant thereto.
11.01.02. Until such time as buildings or
improvements are constructed on the portion of the Real Estate on
which a unit and Limited Common Elements appurtenant thereto are
to be located as shown on Exhibit "B," or at any other time when
buildings or other improvements may not be constructed on such
Real Estate, the Unit Owner of such Unit shall take or cause to
be taken such measures as may be necessary to control weeds,
reduce the blowing of dirt and sand, to reduce erosion and to
keep such area free of debris.
11.02. Compliance with Laws. Each Unit Owner, without cost
or expense to the other Unit Owners or the Association, shall
promptly comply or cause compliance with all laws, ordinances,
rules and regulations of any governmental authority having
jurisdiction which may at any time be applicable to its
respective Unit or the Limited Common Elements appurtenant
thereto; provided, however, that each Unit Owner shall have the
right to contest, by appropriate legal or administrative
proceedings diligently conducted in good faith, the validity or
application of any such law, ordinance, rule or regulation and
may delay compliance until a final decision has been rendered in
such proceedings and appeal is no longer possible, unless such
delay would render the other Units or Limited Common Elements
appurtenant to another Unit, or any portion of the General Common
Elements liable to forfeiture, involuntary sale or loss, or
result in involuntary closing of any business conducted thereon,
or subject another Unit Owner or the Association to civil or
criminal liability, in which case the contesting Unit owner shall
immediately take such steps as may be necessary to prevent any of
the foregoing, including posting bonds or security for complying
with such law, ordinance, rule or regulation. Each non-
contesting Unit owner or the Association shall cooperate to the
fullest extent necessary with any contesting Unit Owner in any
proceeding undertaken pursuant to this provision, including
executing of necessary documents or consents to such contest,
provided all costs and expenses incurred with respect thereof are
paid by the contesting Unit Owner.
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12. EASEMENTS.
12.01. Unit owner Easements. Every Unit Owner and its
successors and assigns shall have the following perpetual
easements with respect to the Condominium Property which shall be
for the benefit of all owners and occupants of Units:
12.01.01. A non-exclusive easement upon, through,
under and across the General Common Elements for the purpose of
(i) constructing, installing, using, operating, maintaining,
repairing, replacing, altering and expanding (to the extent
permitted by this Declaration) its Unit and Limited Common
Elements appurtenant to its Unit as permitted under this
Declaration and (ii) pedestrian and vehicular ingress, egress,
passage, delivery and parking. The Association shall have the
right, upon advice of legal counsel, to close off any portion of
the General Common Elements for the shortest period of time so as
to prevent the public dedication thereof unless otherwise
required by applicable law;
elements;
12.01.02 A non-exclusive easement in, upon, over,
under, across and through the General Common Elements to keep,
maintain, use and operate its Unit and Limited Common Elements
appurtenant thereto, and applicable Unit Utility Lines in their
original positions and in every subsequent position to which they
change by reason of the gradual forces of nature and the
12.01.03. An exclusive easement for the existence
and continuance of any encroachment by its Unit or the Limited
Common Element appurtenant thereto upon any adjoining Unit or
upon any Common Element, now existing or which may come into
existence hereafter as a result of construction, reconstruction,
repair, shifting, settlement or movement of any portion of a
building or a Unit, or as a result of condemnation or eminent
domain proceedings;
12.01.04. A non-exclusive easement in, upon, over,
under, across and through the General Common Elements to install,
operate, maintain, repair and remove any of their identification
signs permitted under this Declaration located on the Condominium
Property, as indicated on the Site Plan, or as may be agreed upon
among by any such Unit Owner and the Association;
12.01.05. A non-exclusive easement in, upon, over,
across and through the General Common Elements for the
installation, operation, maintenance, repair, relocation and
removal of sanitary and storm sewers, water and gas mains,
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' i
electric power lines, telephone lines and other utility lines, a
satellite dish or microwave communications equipment to serve
their respective Units and the Limited Common Elements
appurtenant thereto (collectively, "Unit Utility Lines")
including, without limitation, the right to install, relocate,
upgrade and maintain manholes, meters, pipelines, valves,
hydrants, sprinkler controls, conduits, sewage facilities and all
related facilities in a manner which does not interfere with any
of the General Common Elements or the use and operation of any
other Units or the Limited Common Elements appurtenant thereto.
All easements for the Unit Utility Lines shall be subject, as to
location, to the approval of the Association, which approval
shall not be unreasonably withheld or delayed. In all events,
however, the Unit Utility Lines shall, to the extent reasonably
possible, be located underground, and all satellite dishes and
microwave communication equipment shall be affixed to the roof,
or attached to the side or rear, of the Unit to be served
thereby, subject to Section 14.02. Each Unit Owner shall give at
least ten (10) days' written notice to the other Unit Owners and
the Association prior to performing any repairs or maintenance to
Unit Utility Lines. Each Unit Owner shall, at its cost and
expense, repair any damage to the General Common Elements caused
by such repair and maintenance; and
12.01.06. A non-exclusive easement to tie into and
use the Common Utility Lines subject to the Association's rights
and obligations as set forth in Section 12.03.03.
12.01.07. A perpetual and non-exclusive easement in,
upon, over, under, across and through the Common Elements for
surface water runoff and drainage caused by natural forces and
elements, grading, and/or the improvements located upon the Real
Estate. Further, the easements reserved or granted pursuant to
this Section 12.01 shall be subject to the applicable provisions
of Sections 14.02 and 14.03.
12.01.08 A temporary easement in, upon, over
across and through the Limited Common Elements appurtenant to
each Unit for access by the contractor of each other Unit Owner
as reasonably necessary for each Unit Owner's contractor to
construct the benefitted Unit, provided same does not delay or
interfere with the construction of, nor interfere with the
operation of, the burdened Unit. Each Unit Owner agrees to
cooperate with each other Unit Owner in order that construction
of the Units shall be completed in a timely fashion. If any Unit
is not completed before the first Unit opens for business to the
public, then the owner(s) of the uncompleted Unit or Units shall
perform the construction of its or their respective Unit(s) in
such a manner so as (i) to minimize, to the extent reasonably
practicable (but without the obligation to perform such
construction during any particular hours of the day), any
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[July 1, 1996; divita_r]
interference with the business operations at the open Unit(s),
and (ii) not to prevent or restrict access to the General Common
Elements or any of the open Units.
12.01.08. A non-exclusive easement upon and across
the sidewalks abutting each Unit for the passage and repassage of
pedestrians. Each Unit owner shall have the right, upon advice
of legal counsel, to close off any portion of the sidewalks
abutting its Unit for the shortest period of time so as to
prevent the public dedication thereof unless otherwise required
by applicable law.
12.01.09 The easements reserved or granted
pursuant to this Section 12.01 to the Unit Owners shall be for
the benefit of, but not restricted solely to, the Unit Owners,
and any such Unit owner may grant the benefit of any such
easement to their respective tenants, subtenants, licensees or
other occupants of their respective Unit for the permitted
duration of such occupancy and, with respect to the non-exclusive
easement for pedestrian and vehicular ingress, egress, passage,
delivery and parking, to the customers, employees and business
invitees of such Unit Owners and their respective tenants,
subtenants, licensees or other occupants; but the same is not
intended nor shall it be construed as creating any rights in or
for the benefit of the general public.
12.02. Declarant Is Easements. In addition to and in
supplementation of the easements provided for by Section 3216 of
the Act (relating to encroachments), Section 3217 of the Act
(Declarant's use of portions of Unit Buildings owned by Declarant
for sales purposes) and Section 3218 of the Act (to facilitate
Declarant's work), the following easements are created. The
easements created hereby shall be exercised in such manner as to
minimize any interference with the business operations being
conducted within the Units and the Limited Common Elements
appurtenant thereto.
12.02.01. A non-exclusive easement in, upon,
through, under and across the Units, the Limited Common Elements
and the General Common Elements for the purpose of (i) the
initial construction and installation of the General Common
Elements; (ii) the initial construction and installation of any
Common Utility Line or Unit Utility Line and (iii) pedestrian and
vehicular ingress and egress, passage, delivery and parking
during initial construction of the Limited Common Elements and
General Common Elements. This Easement shall terminate upon the
completion of the initial construction of the General Common
Elements.
12.02.02. Declarant reserves an easement on, over,
and under the General Common Elements for all purposes relating
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to the construction, development, leasing, and sale of a Unit to
be constructed on the Withdrawable Real Estate and the
improvements on or to be constructed thereon. This easement
shall include, without limitation, the right of vehicular and
pedestrian ingress and egress; the right to park motor vehicles
and to engage in construction and marketing activities of any
nature whatsoever; the movement of building materials and
equipment; the storage of building materials within the General
Common Elements located upon the Withdrawable Real Estate; the
conduct of sales, leasing and management activities; the
maintenance of models and offices within the General Common
Elements located upon the Withdrawable Real Estate; and the
erection and maintenance of directional and promotional signs.
This Easement shall terminate upon the substantial completion of
the initial construction of a Unit Building on the Withdrawable
Real Estate, or withdrawal of the Withdrawable Real Estate from
the Condominium.
12.03. Association Easements. The Association, through the
Executive Board or any manager, managing agent, or other third
party responsible for performing the Association's obligations,
in whole or in part, under this Declaration, and the respective
agents or employees of any of the foregoing, shall have the
following perpetual easements in, upon, through, under and across
the Condominium Property:
12.03.01. An exclusive easement for operating,
maintaining, repairing, replacing and altering any General Common
Elements, including those which presently or may hereafter
encroach upon a Unit or the Limited Common Element appurtenant to
any Unit, provided that the Association shall exercise its rights
under this Section 12.03.01 in such a manner so as to minimize
any interference with the business operations being conducted
within the particular Unit and the Limited Common Elements
appurtenant thereto; and
12.03.02. An easement in, upon, over, across and
through the General Common Elements, and any Limited Common
Element, for the installation (subject as to location, to the
approval of the unit Owner(s) if the Common Utility Line crosses
Limited Common Elements appurtenant to a Unit, which approval
shall not be unreasonably withheld or delayed), operation,
maintenance, repair, relocation and removal of all utility lines
within the Condominium Property including, without limitation,
utility lines serving the General Common Elements, other than
Unit Utility Lines ("Common Utility Lines") including, without
limitation, the right to install, relocate, upgrade and maintain
manholes, meters, pipelines, valves, hydrants, sprinkler
controls, conduits, sewage facilities and all related facilities
in a manner which does not interfere with the use of the General
Common Elements or any Limited Common Elements appurtenant to a
[J:\0013436\0141declare9.13x]
-34- [July 1,19%; divita r]
Unit. The Association shall, at its cost and expense, repair
any damage to a Unit Building or the Limited Common Elements
appurtenant to a Unit, caused by the Association's repair and
maintenance of the common Utility Lines. Further, the easements
reserved or granted pursuant to this Section 12.03 shall be
subject to the applicable provisions of Sections 14.02 and 14.03.
12.04. Posted Mortgage Holder Easements. The holder of any
Posted Mortgage, its officers, agents and employees, shall have a
blanket, perpetual and non-exclusive easement to enter the
General Common Elements to inspect the condition and repair of
any Units so encumbered by its Posted Mortgage.
12.05. Utility Easement For Governmental Agency. A blanket,
perpetual and non-exclusive easement in, upon, over, across and
through the Common Elements for the purpose of the installation,
maintenance, repair, service and replacement of all sewer, water,
power and telephone pipes, lines, mains, conduits, waters, poles,
transformers and any and all other equipment or machinery
necessary or incidental to the proper functioning of any utility
systems serving the Condominium Property, which easement shall be
for the benefit of any governmental agency or utility company or
other entity which requires same for the purpose of furnishing
one or more of the foregoing services.
12.06. Governmental Easement.
12.06.01. A blanket, perpetual and non-exclusive
easement of unobstructed ingress and egress in, upon, over,
across and through the Common Elements to Hampden Township, its
respective officers, agents and employees (but not the public in
general) and all police, fire and ambulance personnel in the
proper performance of their respective duties (including, but not
limited to, emergency repairs to a Unit), and for repair and
maintenance of the Common Elements. Except in the event of
emergencies, the rights accompanying the easements provided for
in this Section 12.06.01 shall be exercised only during
reasonable daylight hours and then, whenever practicable, only
after advance notice to and with permission of the Unit Owner(s)
directly affected thereby.
12.06.02. A perpetual, blanket and non-exclusive
easement in, upon, over, under, across and through the Common
Elements to Hampden Township, its respective officers, agents and
employees (but not the general public) for surface water runoff
and drainage caused by natural forces and elements, grading,
and/or the improvements located upon the Real Estate.
12.07. K-Mart Easements. To the extent granted by Declarant
for the benefit of the real property adjoining the Condominium
Property to the east, now or formerly of Cumberland Partners (the
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(July 1, 1996; divita r[
"K-Mart Parcel") pursuant to those certain condominium Documents
identified on Exhibit G as the "K-Mart Easements", the owners,
tenants, guests and invitees of the K-Mart Parcel shall have a
non-exclusive right and easement of use, in common with the Unit
Owners, of the easement areas located upon the Condominium
Property identified in the K-Mart Easements. To the extent
granted by Cumberland Partners for the benefit of the Condominium
Property pursuant to the K-Mart Easements, the Unit Owners and
their tenants, subtenants, licensees and other Unit occupants,
guests and invitees shall have a non-exclusive right and easement
of use, in common with the owners, tenants and occupants of the
K-Mart Parcel, of the easement areas located upon the K-Mart
Parcel identified in the K-Mart Easements.
12.08. Encroachments.
12.08.01. If any portion of the General Common
Elements encroaches upon any Unit or the Limited Common Elements
appurtenant to such unit, or vice versa, or in the event that any
portion of one Unit or the Limited Common Elements appurtenant to
such Unit encroaches upon another Unit or the Limited Common
Elements appurtenant to such Unit (including, without limitation,
footings for the support of foundations or for overhangs for roof
projections, signs or similar projections, and tying into,
attaching and connecting into an adjacent Unit or Limited Common
Element appurtenant thereto, and/or the sharing of a common wall,
to the extent initially constructed in such a manner), then a
valid easement for the encroachment and for the maintenance of
the same, so long as it stands (including a reasonable period to
permit reconstruction or replacement of such Unit and the Limited
Common Element appurtenant thereto if the same shall be damaged,
destroyed or demolished) shall and does exist; provided that no
such encroachment shall, at the time such encroachment shall
first occur, interfere in any way with the actual use of any
Unit, the Limited Common Elements appurtenant to such Unit or the
General Common Elements, and provided further that no such
encroachment shall exceed three (3) feet except in connection
with any canopies attached to a Unit, in which event such
encroachment over the General Common Elements shall not exceed
ten (10) feet.
12.08.02. In connection with any construction,
installing, repairing, replacing or altering of any Unit and
Common Elements as permitted under this Declaration, if any
portion of the General Common Elements encroaches upon any Unit
or the Limited Common Elements appurtenant to such Unit, or vice
versa, or in the event that any portion of one Unit or the
Limited Common Elements appurtenant to such Unit encroaches upon
another Unit or the Limited Common Elements appurtenant to such
Unit, as a result of the use of ladders, scaffolding, store front
[J:V0013436\014Aeclare9.Doc]
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'barricades and similar facilities resulting in temporary
bbstructions of portions of the General Common Elements, then a
valid easement for such incidental encroachment and for the
maintenance of the same, so long as it stands, shall and does
exist so long as their use is kept within the reasonable
requirements of the construction work and such work is
expeditiously pursued.
12.09 Freestanding Sign Rights. tThe Unit Owners of Units
1, 2, 3, 4 and 5 shall each have the right to place and maintain
an identification panel on the pylon sign structures constructed
within the Shopping Center. Such identification panel shall be
of the dimensions and in the location shown therefor on Exhibit
"M" annexed hereto. Such identification panels shall conform
with the requirements set forth in the Rules and Regulations
annexed hereto, but shall otherwise be of such design, content
and colors as the Unit Owners shall respectively determine. The
Unit Owners shall each, at their respective cost and expense,
maintain its respective identification panel in good order and
repair. No Unit owner whose Unit contains less than 15,000
square feet of Floor Area, or tenant or occupant of the Shopping
Center occupying less than 15,000 square feet of Floor Area,
shall be permitted to maintain an identification sign on the
pylon sign structures.
12.10. Miscellaneous.
12.10.01. In interpreting any and all provisions of
this instrument, the Exhibits attached hereto, subsequent deeds
and Mortgages, the actual location of the Unit shall be deemed
conclusively to be the property intended to be conveyed, reserved
or encumbered notwithstanding any minor deviations, either
horizontally or vertically, from the proposed locations as
indicated on the Plats and Plans. To the extent that such minor
variations in locations do or shall exist, a valid easement
therefor does and shall exist.
12.10.02. To the extent that any rights, privileges
and easements inure to the benefit of Declarant as appurtenances
to the Real Estate, the same shall be deemed to have been
assigned to, and shall be enjoyed by, the Unit Owners and the
Association, except as otherwise expressly provided in this
Declaration.
12.10.03 Declarant (with respect to those portions of
the Condominium Property owned by Declarant), the Association
(with respect to the General Common Elements) and each Unit Owner
(with respect to the Unit owned by such Unit Owner)reserves the
right to dedicate to Hampden Township, or any other governmental
body or agency, all or any portion of the Condominium Property
_3 7_ ]JA0013436\014Weolare9Moc]
(July 1, 1996; divita_r]
Awned (or in the case of the Association, controlled) by
Declarant, the Association or the Unit Owner respectively,
including, without limitation, Brondle Boulevard, provided in all
events, such dedication does not impair the operation of other
Units. Declarant (with respect to Common Utility Lines), the
Association (with respect to Common Utility Lines) and each Unit
owner (with respect to Unit Utility Lines owned by such Unit
Owner) reserves the right to dedicate to any public utility
company providing service to the Condominium Property, all or any
portion of the Unit Utility Lines or Common Utility Lines owned
(or in the case of the Association, controlled) by Declarant, the
Association or the Unit Owner respectively, provided in all
events, such dedication does not impair the operation of any
Unit. No such dedication may be made without the prior written
approval of all Posted Mortgagees holding first liens upon the
Real Estate to be dedicated hereunder.
13. BY-LAWS AND ADMINISTRATION,
13.01. By-Laws. The Condominium Property shall be
administered, supervised and managed by the Association, which
shall act by and on behalf of the owners of the Units in
accordance with this Declaration, the By-Laws and the Condominium
Act. The By-Laws form an integral part of this plan of ownership
herein described, and this Declaration shall be construed in
conjunction with the provisions of the By-Laws. Pursuant to the
requirements of the Condominium Act, the Association is hereby
designated as the form of administration of the Condominium
Property, and the Association is hereby vested with the rights,
powers, privileges and duties necessary to or incidental to the
proper administration of the Condominium Property, the same being
more particularly set forth in the By-Laws of the Association.
No Unit Owner, except when acting as an authorized officer of the
Association, shall have any authority to act on behalf of or bind
the Association.
13.02. Conflicts, In the event there are any inconsistencies
or conflicts between the By-Laws and any provision contained in
this Declaration or the Condominium Documents, the provisions set
forth in this Declaration or the Condominium Documents, as
applicable, shall govern.
13.03 EXECUTIVE BOARD.
13.03.01 The Executive Board shall consist of
five (5) members, sometimes referred to herein or in the Bylaws
as the "Directors" or individually as a "Director". The Directors
constituting the initial Executive Board shall be appointed,
removed and replaced from time to time by the Declarant without
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(July 1, 1996, dNita_r)
the necessity of obtaining resignations.
members of the Executive Board shall be
elected by the Unit Owners in accordance
Section 13.03.02.
The Declarant appointed
replaced with Directors
with the provisions of
13.03.02. Not later than sixty (60) days after
conveyance of a Unit or Units having in the aggregate at least
25% of the Percentage Interests to Unit Owner(s) other than the
Declarant, all Directors of the Executive Board appointed by
Declarant shall resign and the Unit Owners (including the
Declarant to the extent of Units owned by the Declarant) shall
elect a new five (5) member Executive Board. For the purposes of
this Section 13.03.02, conveyance of a Unit Owner's Rights
pursuant to Section 20.22 hereof shall be deemed conveyance of a
Unit.
13.03.03 In addition to the powers set forth in
Section 3302 of the Act and elsewhere herein, the Executive Board
shall have the additional powers as set forth in the Bylaws.
14. COVENANTS, RESTRICTIONS AND AGREEMENTS.
The Condominium Property is subject to all covenants,
restrictions and easements of record and the following covenants,
restrictions and agreements to which all Unit Owners (and their
tenants, subtenants, licensees and other Unit Occupants) shall be
subject:
14.01. Transferability. Each Unit shall, for all purposes,
constitute a separate parcel of real property which may be owned
in fee simple and which may be conveyed, devised, inherited,
transferred or encumbered along with its allocated percentage in
the Common Elements, in the same manner as any other parcel of
real property, independently of all other Units, subject to the
provisions of this Declaration, the By-Laws, the Condominium
Documents, the Condominium Act and applicable law. No part of
any Unit shall be conveyed, devised, inherited, transferred or
encumbered apart from its undivided percentage interest in the
Common Elements. A Unit's undivided interest in the Common
Elements shall be deemed conveyed or encumbered with the Unit
even if such interest is not expressly mentioned or described in
the conveyance or other instrument.
14.02. Building Restrictions.
14.02.01 Subject to Sections 4.01.03 and 4.01.04, no
buildings or structures of any kind shall be constructed or
permitted on the Condominium Property, except in the "Building
Areas," "Future Building Areas" and "Future Expansion Areas", as
[JA0013436\0141dec1are9. Docj
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Shawn on the Plats and Plans. In no event shall any building or
structure on the Condominium Property exceed forty (40) feet in
height above finished grade, measured to the top of any parapet
or other architectural element, but not including any rooftop
equipment or mechanical penthouse. No Unit Building shall
contain more than one (1) story (which may include a mezzanine,
provided however, such mezzanine shall not be used for the sale
of retail goods). Each Unit Owner (or its tenant(s), subject to
such Unit Owner's consent) shall be permitted to erect a
satellite dish or antennae not to exceed ten feet (101) in height
on the roof, sides or rear of its Unit, subject to such Unit
Owner obtaining any required approvals of Hampden Township or any
other governmental entity having jurisdiction. All Unit
Buildings shall have a common architectural theme and exterior
building materials of white split face block (BETCO standard
color #810). A Unit Building may use beige split face block
(BETCO standard color #840) as an accent color. Notwithstanding
anything herein to the contrary, nothing herein shall require the
Unit Owner of Unit No. 1 to alter its standard entrance tower or
use of Alucobond and red trim on the front exterior of the Unit
Building to be constructed on Unit No. 1.
14.02.02 After the initial construction of the
initial Units and Common Elements, no construction, alteration,
repairs, replacements or maintenance to the exterior portions of
the Condominium Property, other than for emergency repairs, day
to day maintenance and other than in connection with the
construction of a Unit Building on the Withdrawable Real Estate,
shall be permitted (x) within those portions of the Condominium
Property shown and designated on the Plats and Plans as
"Christmas Restricted Area" during the period October 1 through
December 31 of any calendar year without the unanimous written
consent of the Unit Owners of Units 1, 2, 3 and 4, or (y) within
those portions of the Condominium Property shown and designated
on the Plats and Plans as "Spring Restricted Area" during the
period March 1 through June 1 of any given year without the
consent of the Unit Owner of Unit 5.
14.02.03 If any Unit is not completed before the
first Unit opens for business to the public, then the owners of
such Unit or Units shall perform the construction of its or their
respective Unit(s) in such a manner so as (i) to minimize, to the
extent reasonably practicable (but without the obligation to
perform such construction during any particular hours of the
day), any interference with the business operations at the open
Unit(s), (ii) not to prevent or restrict access to the
Condominium Property and each of such open Units, and (iii) to
use, as its staging area, that portion of the General Common
Elements identified as "Secondary Construction Staging Area -
Unit No. " on Exhibit "B."
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(July 1, 19%; diWta r]
14.03. Construction Standards. With respect to any
construction, alteration, repair, replacement or maintenance to
be performed by a Unit Owner or the Association, as applicable,
as may be permitted or required by the Declaration:
14.03.01. Each Unit Owner and the Association shall
perform their respective work so as not to: (i) with respect to
the construction of its Unit or Limited Common Elements
appurtenant thereto, cause any increase in the cost of
constructing the remainder of the Condominium Property (or any
part thereof); (ii) unreasonably interfere with any work being
performed on the remainder of the Condominium Property (or any
part thereof); and (iii) unreasonably interfere with the use,
occupancy or enjoyment of the remainder of the Condominium
Property (or any part thereof) by any other Unit Owner or any
occupant of the Condominium Property or the Association, as
applicable. Each Unit Owner or the Association, as applicable,
shall take such safety measures as may be reasonably required to
protect the other Unit Owners and occupants of the Condominium
Property, if any, or the Association, as applicable, and the
property of each from injury or damage caused by or resulting
from the performance of such work by such Unit Owner or the
Association, as applicable.
14.03.02. With respect to the construction of its
Unit and Limited Common Elements, each Unit Owner shall use all
reasonable efforts to cause its architects and contractors to
cooperate and coordinate its construction with the architects,
contractors and construction work of the other Unit Owners to the
extent reasonably practicable.
14.03.03. Each Unit Owner and the Association shall
pay all costs, expenses, liabilities and liens arising out of or
in any way connected with their respective work; provided,
however, that nothing herein contained shall be deemed to prevent
liens by way of a construction or permanent mortgage on a Unit.
In connection therewith, no Unit Owner or the Association, as
applicable, shall suffer or permit any actual or alleged liens to
stand against the Real Estate, the Common Elements or against
another Unit, by reason of any work, labor, services or materials
done for, or supplied, or claimed to have been done for, or
supplied to, the performing Unit Owner or the Association, as
applicable. If any such lien shall at any time be filed against
the Real Estate, the Common Elements or another Unit, the Unit
Owner or the Association, as applicable, performing such work
(for the purposes of this Section 14.03.03, "Defaulting Unit
Owner") shall either bond the lien pending an action to dispute
the amount of the lien or cause the same to be discharged within
ten (10) days after the date of filing the same, by either
payment, deposit or bond. If the Defaulting Unit Owner shall
fail to so discharge any such lien within such ten-day period,
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(July 1, 1996; divihLr)
then, in addition to any other right or remedy of the other Unit
Owners (for the purposes of this Section 14.03.03, "Non-
Defaulting Unit owner(s)") or the Association, any Non-Defaulting
Unit Owner or the Association may, but shall not be obligated to,
procure the discharge of the same either by paying the amount
claimed to be due by deposit in court or bonding. Any amount
paid or deposited by any Non-Defaulting Unit Owner or the
Association for any of the aforesaid purposes, and all legal and
other expenses including, without limitation, reasonable counsel
fees, in defending any such action or in or about procuring the
discharge of such lien, with all necessary disbursements in
connection therewith, together with interest thereon at the
Default Rate, shall become due and payable forthwith by the
Defaulting Unit Owner to the Non-Defaulting owner who exercised
its rights under this Section or the Association. If a Non-
Defaulting Unit owner exercises its rights under this Section
14.03.03, then such Unit Owner shall have a lien on the
Defaulting Unit owner's Unit (or the rights against the
Association provided in Section 19.01.02) to secure the payment
of aforesaid amounts, fees, expenses, costs and interest, the
effectiveness and priority of which shall be governed by the
principles applicable to the lien referred to in Section
19.01.02(ii).
14.03.04. During any time when a Unit Owner, the
Association or Declarant, as applicable, is performing any
construction, alteration or replacement work in respect of its
Unit or the Limited Common Elements appurtenant thereto (as to a
Unit Owner) or the General Common Elements (as to the Association
or Declarant, as applicable), such Unit Owner, the Association or
Declarant, as applicable, shall obtain, or shall require its
general contractor to maintain, Workers Compensation insurance
with statutory limits; employer's liability coverage in an amount
of not less than $500,000.00; automobile liability for owned and
non-owned vehicles, in an amount of not less than $5,000,000.00;
commercial general liability insurance, covering bodily injury,
death and property damage (including products completed
operations coverage) with a limit of not less than $5,000,000.00
per occurrence; and a so-called completed value "builder's risk"
insurance covering loss or damage from fire, lightning, extended
coverage perils, sprinkler leakage, vandalism, malicious mischief
and such other perils as are covered under a standard fire
insurance policy with an "Extended Coverage Endorsement". Such
builder's risk insurance shall be in an amount not less than the
full replacement value of all such construction.
14.03.05. Nothing in this Declaration shall be
deemed or construed to require Declarant or any Unit Owner to use
unionized labor, or a labor force represented by a specific labor
organization, in the performance of any construction, alteration
or other work by a Unit Owner or its tenants, subtenants,
P A0013436V 4\declare9.Doc]
-42- (July 1,1996; dWa r]
licensees or other Unit occupants upon the Condominium Property.
14.03.06. During initial construction of the
Units, each Unit Owner and its contractors may temporarily use
that portion of the General Common Elements shown and designated
on Exhibit "B" as "Initial Construction Staging Area - Unit [#]"
for the delivery and storage of construction materials, equipment
and supplies, and the placement of one or more job site trailers.
After the first Unit has opened for business, each Unit Owner may
temporarily use that portion of the General Common Elements shown
and designated on Exhibit "B" as "Secondary Construction Staging
Area - Unit [#]" for the delivery and storage of construction
materials, equipment and supplies, and the placement of one or
more job site trailers, provided ingress and egress over
driveways and use of adjacent General Common Elements, are not
adversely affected.
14.04. Obstructions. No signs, fences (other than temporary
construction fencing immediately around the Unit and a reasonable
construction staging area as designated in Section 14.02),
hedges, curbings, barriers, walls or other structures which would
prohibit the free flow of pedestrian or automotive traffic as
intended by this Declaration, shall be erected by any Unit owner
which by the terms of this Declaration must remain General Common
Elements, except as indicated on the Site Plan (including,
without limitation, the Future Building Area) or as otherwise
permitted under the Declaration or required by the Condominium
Documents or applicable law.
14.05. Drainage. No individual Unit owner (other than
Declarant in connection with its initial construction of the
Units, the Common Elements and the future construction of a Unit
Building on the Withdrawable Real Estate, and the Unit Owners in
connection with their initial construction of their respective
Units and the Limited Common Elements appurtenant thereto) shall
directly or indirectly interfere with or alter the drainage and
runoff patterns and systems within the Condominium Property.
(Declarant, in connection with its initial construction of the
Common Elements or of a Unit Building on the Withdrawable Real
Estate, shall not alter the drainage and runoff patterns and
systems in such manner as will cause damage to any improvements,
completed or in progress, including, without limitation, finished
building pads.)
14.06. Parking.
14.06.01 The General Common Elements shall be
operated so that there are not less than 5.0 'ground level parking
spaces marked by painted stripes per 1,000 square feet of Floor
Area located within the Units, except if a greater ratio is
required by Hampden Township or in the event of a condemnation by
-43- (JA001 W6V014\declare9Aoc]
(July 1, 1996; divita_r]
way of eminent domain or deed in lieu thereof, together with
driveways, entrances, exits and sidewalks as shown on Exhibit
"B," as same may be amended from time to time pursuant to the
provisions of this Declaration. Unless required by applicable
law, no metered or other parking charge shall be made for parking
in the parking areas in the General Common Elements, it being the
intention that the right to park in the General Common Elements
shall be free of any charge whatsoever, except for the assessment
for Common Expenses pursuant to Section 9.02. The designation
and use of any Reserved Common Element pursuant to Section 7.04
shall not be a violation of this Section 14.06 (unless, as a
result thereof, there is a violation of the applicable parking
ratio required by Hampden Township).
14.06.02 The Executive Board may from time to time,
upon unanimous consent and approval, designate a portion or
portions of the General Common Elements (which shall not be in
the Protected Area of any Unit Owner) as employee parking
area(s). Each Unit Owner shall use commercially reasonable
efforts to cause the employees of such Unit Owner and of its
tenants and occupants to park in the designated employee parking
area(s).
14.06.03 Neither the Association nor any Unit owner
shall construct any parking facility above or below ground level.
14.07. Prohibited Uses of General Common Elements. No Unit
Owner (or its tenants, subtenants, licensees or other Unit
occupants) shall display or sell any merchandise in the General
Common Elements except for (a) sales and displays in connection
with the promotional activities of the "Grand Opening" of the
Condominium Property, and (b) the use of any Reserved Common
Element pursuant to Section 7.04. No Unit Owner (or its tenants,
subtenants, licensees or other Unit occupants) of Units 1, 2, 3
or 4 shall display or sell any merchandise in the Limited Common
Elements appurtenant to its Unit, except for sales and displays
in connection with a "sidewalk sale" on the sidewalks immediately
adjoining and in front of the applicable Unit, provided no such
"sidewalk sale" shall be conducted within fifty (50) feet of the
boundary of any adjacent Unit without the consent of the Unit
Owner of such adjacent Unit; no Unit Owner shall conduct more
than one (1) such "sidewalk sale" during any calendar year; no
"sidewalk sale" shall last more than four (4) days; and such
"sidewalk sale" shall not unreasonably restrict the free flow of
pedestrians across the sidewalks.
14.08. Prohibited Uses.
14.08.01. No Unit, other than Unit No. 5, shall be
used for the sale of lumber, hardware, paint, wallpaper and other
wall coverings, carpeting and other floor coverings, tile
_44_ PA0013436V 4?deefare9.Docj
[July 1, 1996; divKa r]
(including ceramic tile), cabinets, electrical supplies, light
fixtures, plumbing supplies, gardening supplies, nursery
products, artificial and natural plants, pool supplies, ceiling
fans, patio furniture, or Christmas trees and other related items
typically sold by a home improvement store.
14.08.02. No Unit, other than Unit No. 1, shall be
used for the sale of consumer, office and automotive electronics
products (which include, but shall not be limited to,
televisions, stereos, speakers and video recorders and players),
computer hardware and software, entertainment software or
entertainment media (which include, but shall not be limited to,
records, game cartridges, video tapes, cassettes and compact
discs), cellular telephones, household appliances (which include,
but shall not be limited to, refrigerators, freezers, stoves,
microwave ovens, vacuum cleaners and dishwashers) and related
goods and the sale and installation of motor vehicle audio,
stereo and telephone systems, or the renting, servicing,
repairing and warehousing of the foregoing products.
Notwithstanding the foregoing, the Owner of one Unit other than
Unit No. 1 may use its Unit for the operation of an "Office
Depot", "Office Max" or "Staples" (or their respective corporate
successors and assigns) such as operated by such respective
national retailers as of the date hereof in a majority of its
stores.without violating the exclusive use in this Section.
14.08.03. No Unit, other than Unit No. 3, shall be
used for the operation of a business primarily consisting of the
retail sale of pets, pet grooming, veterinary and other pet
services, pet food, pet accessories and other pet products.
14.08.04. No Unit other than Units Nos. 1, 2 and 5
shall be used for the sale or leasing of office supplies, office
furniture; art supplies; architectural supplies; engineering
supplies; photocopy services; facsimile services; or instant
print shop and other office related services.
14.08.05 The use restrictions contained in this
Section 14.08 shall not apply to the sale of any items or lines
of items referred to herein if such sale is incidental to a unit
Owner's (or its tenant's or occupant's) primary business in its
Unit. For purposes hereof, a sale shall be "incidental" to a
Unit Owner's primary business if less than the lesser of ten
percent (10*) or 2,000 square feet of such Unit Owner's display
area is used for the sale of such items or lines of items.
14.08.06 The applicable use restriction contained in
this Section 14.08 shall be null and void if the Unit benefited
by the restriction is not open for business within twenty-four
(24) months after the initial recording of this Declaration in
the Office of the Cumberland County Recorder of Deeds, or if the
sale of the applicable item or line of items shall be
-45- JJ:?13436\0141declarel O.Docj
(July 19,1996; divRa_rl
discontinued in and from the Unit benefited by the restriction
for a period in excess of twenty-four (24) consecutive months,
not including any period of "Temporary Closing". Said
restrictions shall be reinstated if the owner (or its tenant or
occupant) opens for business or resumes the sale of such
restriction, except with respect to any use commenced (or
permitted in a lease or other occupancy agreement executed)
during a period when the restriction did not apply. The term
"Temporary Closing" for the purposes of this Section 14.08 only
shall mean and include any of the following: (i) the applicable
Unit is under construction or is being altered, renovated or
remodeled, and/or the Unit owner (or tenant or occupant) is
fixturing in preparation for opening, (ii) the applicable Unit is
closed as a result of fire or other casualty or a taking by right
of eminent domain, and is being restored with due diligence, or
(iii) the applicable Unit is closed because of strikes, lockouts,
insurrections or war.
14.08.07 Unit Owners may enter into such agreements
waiving, modifying or supplementing the terms of this Section
14.08. As between such Unit owners, and their respective
successors and/or assigns, whenever the terms of such
supplemental agreement shall conflict with the terms of this
Section 14.08, the terms of such supplemental agreement shall
control. Such supplemental agreement shall bind such Unit Owners
and each and every person or entity acquiring any fee, leasehold
or other interest in any part of the Units owned by the Units
Owners to such supplemental agreement subsequent to the recording
of notice of such supplemental agreement in the Office of the
Recorder of Deeds of Cumberland County.
14.09. Building Facade Signs. The owner of any.Unit shall
have the right to erect (or permit any and all occupants thereof
to erect) any facade signs subject to such Unit Owner (or any and
all occupants of the applicable Unit) obtaining any and all
approvals required by applicable law, and provided the
construction or installation thereof shall not require any Unit
Owner, tenant or occupant of a Unit to remove or reduce the size
of any then existing building facade sign. Every such facade
sign shall conform to the standards set forth in the Rules and
Regulations, provided however, nothing in the Rules and
Regulations shall prohibit a national chain of retail stores,
operating not less than sixty (60) stores under a common
tradename, from erecting a facade sign which is the then current
prototypical facade sign used by such retail stores operating
under such common tradename. The owner of each Unit shall
further be responsible for maintaining and repairing such signs.
-46- PA001343610141declarel0.Docl
(July 25,19W; crMta_r]
14.10. Additional Prohibited Uses.
14.10.01. Except to the extent permitted in this
Section 14.10, no portion of the Condominium Property shall be
used for:
(i) industrial, factory, manufacturing, warehouse
(excluding any warehousing incidental to the operation
of permitted retail uses hereunder), hotel/motel or
residential uses; any governmental use or office use
(except as expressly permitted herein); for the
operation of a massage parlor; any use which creates
undue noise, litter, odor fumes, dust or vapors, emits
objectionable noise or sound, or which is a public or
private nuisance; for a tavern, bar, cocktail lounge or
any other establishment serving alcoholic beverages for
on premises consumption (except if ancillary to the
operation of a restaurant); as a skating rink, billiard
parlor, a bingo parlor or any establishment conducting
games of chance; amusement center or game room or
arcade (except if incidental to the operation of a
retail use not prohibited hereunder); bowling alley;
health spa, exercise club, or other similar operations;
as a school; a sales office, showroom or storage
facility for automobiles or other vehicles or boat
dealer (or similar enterprise); theater, or sports or
other entertainment viewing facility (whether live,
film, audio/visual or video); or funeral parlor; a so-
called "head shop"; a pawn shop; a discotheque or
dancehall; a recycling facility or stockyard; a car
wash; a rehabilitative facility; an offtrack betting
establishment; a house of worship; a business selling
so-called "second hand goods"; a junkyard; a so-called
"flea market"; as a training or educational facility
(which for purposes hereof shall mean a beauty school,
barber school, reading room, place of instruction, or
any other activity, facility, school or program
catering primarily to students or trainees as opposed
to shoppers); an automobile body and fender shop; an
automobile repairs shop (mechanical or otherwise),
other than a tire, battery and accessory facility,
and/or a motor vehicle audio, stereo and telephone
installation facility operated in connection with a
consumer electronics store; any business storing or
selling gasoline or diesel fuel at retail or wholesale;
a health or medical clinic; nor a catering or banquet
hall; central laundry, dry cleaning plant, dry cleaner,
laundromat or coin operated laundry (provided however,
the foregoing restriction shall not be construed to
prohibit retail dry cleaning or laundry facilities
which provide on-site service oriented to pick-up and
_47_ (J:10013436\014Wedareg.Doc)
(July 1, 1996; dWa_r]
delivery by the ultimate consumer); a children's
entertainment, recreation or fitness facility (such as
"Discovery Zone" and "Gymboree"); a day care facility;
or
(ii) an adult book or adult video store, or other
establishment for the sale, rental or exhibition of
pornographic material (provided that the sale or rental
of "adult" materials by a book or video store shall not
violate this restriction if the sale or rental is in
compliance with applicable Laws and requirements of
Governmental Authority and is an incidental use with no
sign or advertisement or display in the storefront
window or in locations visible from the outside, and
such adult materials are discreetly displayed in an
area having restricted access);
(iii) for office purposes, except for incidental office
use by retail stores and "retail offices". The term
"retail offices" shall mean retail uses oriented to the
public, such as a private post office, travel agency,
real estate brokerage offices, insurance brokerage
offices, escrow offices, or a retail branch of a
financial institution; or
(iv) as a restaurant, primarily serving meals for on-
premises consumption, except if located not less than
three hundred (300) feet from Unit No. 1 and Unit No.
5, and such restaurant contains not more than 10,000
square feet of Floor Area. Nothing herein shall be
deemed or construed to prohibit the operation of a food
service operation serving prepared food (such as a
snack bar, cafe or hot dog stand), incorporated into
the operation of a retail establishment, provided such
food service is incidental and ancillary to the
business being conducted within the applicable Unit as
an accommodation to its customers and such food service
operation shall not have an exterior entrance within
fifty (50) feet of the entrance into any adjoining unit
without the consent of the adjoining Unit Owner.
15. ALTERATTONS.
Each Unit Owner shall have the right to make any and all
alterations to its Unit or the Limited Common Elements
appurtenant thereto, structural or otherwise (including, without
limitation, adding or removing, or creating apertures in, any
interior partition walls or any partition that separates Units
owned or controlled by the same Unit Owner, erecting interior
dividing walls within any Unit or the subsequent removal and
_48_ [JA001 343M01 4Wedare9.Doc]
[July 1, 1996; dWa_r]
'relocation of such interior dividing walls), without the consent
of any person or entity (including, without limitation, any Unit
Owner, the Association or the Executive Board), and the right to
relocate boundaries between adjoining units pursuant to Section
3214 of the Act provided that (a) such Unit Owner complies with
applicable law and the Condominium Documents, (b) the structural
integrity of its Unit and the Limited Common Elements appurtenant
thereto, or any other Unit or Limited Common Elements, or the
General Common Elements, are not impaired, (c) any Common
Elements in, under, on or above its Unit are not impaired other
than in the event of a permitted expansion, in which event the
portion of the Real Estate on which the expanded Unit is located
shall no longer be deemed to be a General Common Element but
shall be deemed to be a Limited Common Element appurtenant to
such expanded Unit and any improvement located on such portion of
the Real Estate shall cease to be General Common Elements and
shall be removed and replaced, at the sole cost of the owner of
the Unit which is being expanded, with the expanded Unit, and (d)
the footprint of the Unit or Limited Common Elements appurtenant
thereto are not expanded beyond the Building Areas. Further and
notwithstanding anything contained in this Declaration to the
contrary, no outside area which is a part of a particular Unit
(such as, by way of example only, any outside garden centers),
after its initial construction, shall be fully enclosed by four
(4) walls and a roof and no Unit may be expanded unless a
determination shall first be made by the Executive Board that
such enclosed or expanded space shall not result in there being a
violation of the parking ratio set forth in Section 14.06 which
shall be determined by including, in the number of square feet of
Floor Area located within all Units, the maximum number of square
feet of Floor Area of a Unit to be constructed on the
Withdrawable Real Estate, whether or not same is constructed.
Any application to any municipal authority for a permit to make
an alteration of any Unit or the Limited Common Element
appurtenant thereto must be submitted to the Association for
informational purposes. The Unit Owner(s) shall also furnish the
Association with a copy of any such permit which it has procured.
If the footprint of a Unit is increased as permitted by this
Article 15 or any outside area which is part of a particular Unit
is fully enclosed by four (4) walls and a roof, then such Unit
Owner shall follow the procedures set forth in Sections 8.02 and
9.02.03, as applicable, respecting such changes and the
Association shall prepare and sign an amendment to this
Declaration as provided by Sections 8.02 and 9.02.03, as
applicable.
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16. INDEMNIFICATION AND INSURANCE.
16.01. Indemnification
16.01.01. By Unit Owners. Each Unit owner covenants
to indemnify, defend and hold each other Unit Owner (and such
other Unit Owner's respective tenants, subtenants and licensees)
and the Association harmless (except negligent or tortious acts
or omissions of any such other Unit Owners or the Association, or
their respective agents, tenants, subtenants, licensees,
contractors or employees) from and against any and all claims,
actions, suits, judgments, damages, liabilities and expenses
(including, without limitation, reasonable attorneys' fees) in
connection with loss of life, personal injury and/or damage to
property arising from or out of any occurrence in or upon the
Unit owned by such Unit Owners and the Limited Common Elements
appurtenant to such Unit, or occasioned wholly, or in part, by
any negligent or tortious act or omission of such Unit Owner, its
agents, tenants, subtenants, licensees, contractors, employees or
servants, or by such Unit owner's (or its tenant's) failure to
comply with the Unit Owner's (and its tenant's) obligations under
this Declaration.
16.01.02. By Association. The Association shall
indemnify, defend and hold each Unit Owner (and each Unit Owner's
respective tenants, subtenants and licensees) harmless (except
for loss or damage resulting from the negligent or tortious acts
of such Unit Owner, its agents, tenants, subtenants, licensees,
contractors or employees) from and against any and all claims,
actions, suits, judgments, damages, liabilities and expenses
(including, without limitation, reasonable attorneys' fees) in
connection with loss of life, personal injury and/or damage to
property arising from or out of any occurrence in or upon the
General Common Elements (which for purposes of this Section
16.01.02 shall be deemed to include those portions of the real
property adjoining the Condominium Property which are the subject
of the K-Mart Easements), or occasioned wholly or in part by any
act or omission of the Association, its agents, contractors,
employees, servants, or licensees.
16.02. Liability Insurance.
16.02.01 Each Unit Owner shall obtain and
maintain (or cause to be obtained and maintained) at all times
commercial general liability insurance (including a contractual
liability coverage and products and completed operations
coverages), insuring against claims on account of death, bodily
injury or property damage that may arise from or be occasioned by
the conditions, use or occupancy of the Unit Owner's Unit and the
Limited Common Elements appurtenant thereto.
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16.02.02 The Association shall obtain and
maintain at all times, or cause to be obtained and maintained,
commercial general liability insurance (including a contractual
liability coverage and products and completed operations
coverages), insuring against claims on account of death, bodily
injury, or property damage that may arise from or be occasioned
by the condition, use or occupancy of all General Common
Elements.
16.02.03 The Unit Owners' and the Association's
insurance shall be obtained and maintained in a reputable
insurance company or companies qualified to do business in the
Commonwealth of Pennsylvania, having a Best rating of not less
than B+IX. Said insurance shall initially have limits for bodily
injury, death and property damage in the amounts of not less than
$5,000,000 per occurrence and in the aggregate. Such insurance
shall name Declarant, the Association and all of the Unit owners
or their successors or assigns as additional insureds thereunder
and any Posted Mortgagee, if required. Such insurance shall
provide that the insurance may not be canceled without at least
thirty (30) days' prior written notice being given by the insurer
to each party named as an additional insured. Certificates of
insurance evidencing such coverage, the additional insured status
mentioned above, and, if requested by any such additional insured
party, evidencing a waiver of subrogation in favor of such party
shall be provided to the additional insured parties upon request.
The Board shall have the right, in its reasonable and good faith
business judgment and on notice to each Unit Owner, to increase,
from time to time (but not more frequently than once in any five-
year period), the aforementioned coverages in order to conform to
the industry standards for similarly sized shopping centers in
the Harrisburg, Pennsylvania metropolitan area.
16.03 Casualty Insurance.
16.03.01. Each Unit Owner shall cause to be carried
fire and extended coverage (a/k/a "special form") insurance on
its respective Unit and the Limited Common Elements reserved to
such Unit in an amount at least sufficient to avoid the effect of
any coinsurance provisions of such policies and in any event in
an amount not less than ninety percent of the replacement costs
of such improvements, exclusive of footings and foundations.
16.03.02 The Association shall cause to be carried
fire and extended coverage (a/k/a "special form") insurance on
all improvements comprising the General Common Elements in an
amount not less than one hundred percent (1000) of the
replacement costs of said improvements, exclusive of footings and
foundations.
16.03.03 Every insurance policy carried by the Unit
[J:10013436\0141declare 10. Docj
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Owners or the Association pursuant to this Section 16.03 shall
'(if it can be so written and either does not result in a material
additional premium or the requesting Unit Owner(s) or
Association, as is applicable, agrees to pay on demand any
additional premium) include provisions denying to the insurer
subrogation rights against the other Unit Owners and/or
Association, as is applicable, to the extent such rights have
been waived by the insured prior to the occurrence of damage or
loss. Each Unit Owner and the Association hereby waives any
rights of recovery against the other Unit Owners and/or
Association, as is applicable, for any direct damage or
consequential loss against which such party is protected by
insurance or (by self-insured retention or by the inclusion of
deductible provisions therein or otherwise) has elected to be
self-insured, to the extent of the proceeds paid under such
policies and the amount of any such self-insurance, whether or
not such damage or loss shall have been caused by any acts or
omissions of the other Unit Owner or Association, as is
applicable.
16.04 Self Insurance. If a Unit Owner (or the tenant of such
Unit Owner), taken together with any parent, subsidiary,
affiliate, controlled or controlling entities of such Unit Owner
(or tenant) whose assets are available for the discharge of the
Unit Owner's obligation under this Article 16 has a tangible net
worth in excess of $100,000,000 (which amount shall be deemed
increased on each anniversary date of the recording of this
Declaration by the percentage of increase in the Index since the
month in which this Declaration was recorded) computed in
accordance with generally accepted accounting principles, any
risk (or any portion thereof) may be self-insured, provided that
such Unit Owner (or the tenant of such Unit Owner) is in
compliance with all applicable insurance laws regulating self-
insurers.
16.05 Blanket Policy. Any insurance required under this
Declaration may be carried under a "blanket" policy or policies
covering other properties of the Unit Owner (or the tenant of
such Unit owner) and the subsidiaries, controlling or affiliated
corporations of such Unit Owner (or its tenant), or partly under
a plan of self-insurance and partly under such "blanket"
policies. An increased coverage or "umbrella policy" may be
provided and utilized to increase the coverage provided by
individual or blanket policies in lower amounts, and the
aggregate liabilities provided by all such policies shall be
satisfactory provided they otherwise comply with the provisions
of this Article 16.
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[July 18,1996; dWita_rj
16.06 Policies Generally.
16.06.01 Any insurance.policy carried by the Unit
Owners or the Association pursuant to this Article 16 may contain
commercially reasonable self-insured retentions and/or
deductibles whether or not the Association or such Unit
Owner)satisfies the net worth requirements set forth in section
16.04 hereof.
16.06.02 Every policy of liability insurance required
to be maintained by the Unit Owners under this Declaration shall
name Declarant, the Association, all of the Unit Owners and the
respective successors or assigns of each of the foregoing, as
additional insureds thereunder and any Posted Mortgagee, if
required. Every insurance policy required to be maintained by
the Association shall name Declarant, the Association, all of the
Unit Owners and the parties required to be named as additional
insureds under the K-Mart Easements, and the respective
successors or assigns of each of the foregoing, as additional
insureds thereunder (and/or as loss payee, if applicable) and any
Posted Mortgagee, if required. such insurance shall provide that
the insurance may not be canceled without at least thirty (30)
days' prior written notice being given by the insurer to each
party named as an additional insured and/or loss payee.
Certificates of insurance evidencing such coverage, the
additional insured status mentioned above, and, if requested by
any such additional insured party, evidencing a waiver of
subrogation in favor of such party shall be provided to the
additional insured parties upon request, or evidence of a self-
insurance capacity as hereinabove provided, as the case may be,
shall be furnished in lieu thereof.
16.07 Each Unit Owner and the Association shall obtain and
maintain (or cause to be obtained and maintained) at all times
workers compensation insurance in statutory amounts, or maintain
such alternate coverages or arrangements as legally permitted.
16.08 In accordance with Section 3312(h) of the Act, the
provisions of section 3312(a) of the Act are waived in their
entirety.
-53- (J:W1.343610141dedare10.Doaj
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17. DAMAGE OR DESTRUCTION.
17.01. Units and Limited Common Elements. If any Unit or
the Limited Common Elements appurtenant to a particular Unit is
damaged or destroyed by fire or any other cause, then the
applicable unit owner shall immediately remove (or cause to be
removed) any debris from the Unit and the Limited Common Elements
appurtenant thereto, and erect a sightly barrier around the
damaged area and shall promptly thereafter either, at its sole
discretion, (x) cause the repair, restoration or rebuilding of
the Unit and/or Limited Common Elements appurtenant to such Unit
so damaged or destroyed, or (y) cause the razing of the damaged
(and at such Unit Owner's option, the undamaged) portion of the
Unit and Limited Common Elements appurtenant to such Unit, the
filling of any excavations, the grading and landscaping of the
portion of the Real Estate on which such portion of the Unit or
the Limited Common Element appurtenant to such Unit was located
in a sufficient manner so as to prevent blowing dirt and sand and
to prevent erosion, and performance of any other work necessary
to put such portion of the Condominium Property in a clean,
sightly and safe condition. The repair, restoration or
rebuilding of a Unit and/or Limited Common Elements appurtenant
to such Unit so damaged or destroyed, shall be performed in such
a manner so as (i) to minimize, to the extent reasonably
practicable (but without the obligation to perform such
construction during any particular hours of the day), any
interference with the business operations at the open Unit(s),
and (ii) not to prevent or restrict access to the General Common
Elements or any of the open Units. If such Unit owner proceeds
pursuant to "(y)" above, nothing shall prohibit such Unit Owner
from proceeding pursuant to "(x)" above at some later time
subject to the provisions of Section 14.02. If such Unit owner
does elect to proceed pursuant to "(y)" then, notwithstanding the
reduction in the number of square feet of Floor Area in its Unit
or Limited Common Element, such Unit Owner's undivided percentage
interest in the Common Element and Common Expense Allocation
shall not be diminished and its Common Expense Assessment and any
other assessments shall be unchanged from that existing prior to
the damage or destruction. If any such Unit is to be leased to a
third party, the Unit Owner shall remain responsible for such
restoration or razing if not performed by the tenant,
notwithstanding the terms of any such lease.
17.02. Damage or Destruction - General Common Elements.
17,02.01 If any General Common Elements improvements
are damaged or destroyed, then the Association shall promptly
cause the repair, restoration or rebuilding of the improvements
so damaged or destroyed so that the restored portions of the
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[July 1, 1996; dW to r]
General Common Elements shall comply with the applicable
requirements of this Declaration.
17.02.02. If the proceeds of insurance carried by
the Association pursuant to Section 16.03.02 are not sufficient
to defray the estimated costs of reconstruction and repair of
such damaged General Common Elements, or if at any time during
reconstruction and repair, or upon completion of reconstruction
and repair, the funds for payment of the costs thereof are
insufficient, assessments shall be made against all Unit owners
to provide funds for the payment of such costs. Despite anything
to the contrary in this Declaration or the By-Laws, such
assessments shall be in proportion to the Unit Owner's undivided
Percentage Interest in the Common Elements.
18. EMINENT DOMAIN.
18.01. Award. If the whole or any part of the Condominium
Property shall be taken by right of eminent domain or any similar
authority having jurisdiction, then the entire award for the
value of the Condominium Property so taken shall be collected by
the Association and applied or distributed by it in accordance
with this Article 18 and the Condominium Act. Each Unit owner
affected by any taking shall be entitled to notice of such taking
and may participate through the Association in the proceedings
incident to such taking. In the event of a partial taking of the
General Common Elements, the Association shall utilize the
proceeds of any condemnation award awarded or allocable thereto
to restore the remaining portion of the General Common Elements
as nearly as possible to the condition existing just prior to
such condemnation. Notwithstanding anything to the contrary
contained in this Declaration, (a) if any Unit or the Limited
Common Elements appurtenant to such Unit are taken, then the
Association shall distribute to the Unit Owner thereof one
hundred percent (100%) of the condemnation proceeds awarded or
allocable with respect to such Unit and/or the Limited Common
Elements appurtenant to such Unit less any costs and expenses
(including, without limitation, reasonable attorneys' fees)
incurred in procuring the award; (b) if any portion of the
General Common Elements are taken, the Association shall
distribute the condemnation proceeds awarded after application to
restoration as provided above and less any costs and expenses
(including, without limitation, reasonable attorneys' fees) among
the Unit owners in proportion to their respective undivided
percentage interest in the Common Elements; and (c) if all of the
General Common Elements are taken, then the Association shall
distribute the condemnation proceeds awarded or allocable thereto
among the Unit Owners in proportion to their respective undivided
percentage interests in the Common Elements.
[J A0013436\0141declare9. Doc]
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18.02. Restoration of Units and Limited Common Elements. If
any Unit or Limited Common Elements appurtenant to a particular
Unit is subject to a taking as contemplated by Section 18.01,
then the applicable Unit Owner shall immediately remove (or cause
to be removed) any debris from the Unit and/or the Limited Common
Elements appurtenant to such Unit, and erect a sightly barrier
around the remaining area and shall promptly thereafter either,
at its sole discretion, (x) cause the repair, restoration or
rebuilding of the remaining unit, and/or the Limited Common
Elements appurtenant to such Unit, to an architectural whole, or
(y) cause the razing of the remaining Unit and Limited Common
Elements appurtenant thereto, the filling of any excavations, the
grading and landscaping of the portion of the Real Estate on
which the untaken portion of the Unit and Limited Common Elements
appurtenant thereto were located in a sufficient manner so as to
prevent dirt and sand and to prevent erosion, and performance of
any other work necessary to put such portion of the Condominium
Property in a clean, sightly and safe condition. The repair,
restoration or rebuilding of the remaining portions of a Unit
and/or Limited Common Elements appurtenant to such Unit which has
been subject to a taking, shall be performed in such a manner so
as (i) to minimize, to the extent reasonably practicable (but
without the obligation to perform such construction during any
particular hours of the day), any interference with the business
operations at the open Unit(s), and (ii) not to prevent or
restrict access to the General Common Elements or any of the open
Units. In the event a portion of a Unit is taken, then all of
such Unit's undivided percentage interest in the Common Elements
and, if applicable, such Unit's Common Expense Allocation shall
be automatically reallocated pursuant to the principles and
procedures set forth in Sections 8.02 and 9.02.03, as applicable,
based upon the "untaken" portion of such Unit, regardless of
whether or not such portion is razed pursuant to "(y)" above.
The Association shall prepare, execute and record an amendment to
the Declaration effecting such reallocations.
19. ENFORCEMENT BY ASSOCIATION: UNIT OWNERS.
19.01 Remedies on Default.
19.01.01. If any Unit Owner fails to perform any of
its obligations under this Declaration, the By-Laws, the
Condominium Documents or applicable law (including, without
limitation, the failure to pay any Assessments), then the
Association shall have the right (but not the obligation) to
perform such obligation, after thirty (30) days' prior written
notice to such Unit owner, except if such Unit Owner has
commenced same within such thirty-day period and proceeds
diligently thereafter to complete the performance of such
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[July 1, 1996; dMa_r]
obligation. Notwithstanding the foregoing, in the event of a
bona-fide emergency, the Association may act as quickly, and with
only such notice (verbal or written, and either before or after
exercising self-help rights), as is reasonable under the
circumstances.
19.01.02. If the Association (or any manager
retained or employed by the Association) fails to (a) perform any
obligation under this Declaration in respect of its maintenance
of the General Common Elements pursuant to Sections 10.01 and
10.02 or (b) exercise any right or remedy available to the
Association in respect of the failure of another Unit owner to
perform its obligations under this Declaration, the By-Laws, the
Condominium Documents or applicable law (including, without
limitation, the failure to pay any Assessments), then each Unit
Owner shall have the right to perform such obligation or exercise
such right or remedy, after thirty (30) days' prior written
notice to the Association, except if the Association has
commenced same within such thirty-day period and proceeds
diligently thereafter to complete the performance of such
obligation or exercise such right or remedy. If any Unit owner
exercises its rights under and in accordance with this Section
19.01.02, then (i) with respect to the Association's failure to
perform the Association's maintenance obligations relating to the
Common Elements, such Unit Owner may set-off the reasonable costs
of performing such obligation, together with interest at the
Default Rate, against its assessment for Common Expenses if the
Association fails to pay same within thirty (30) days after a
demand for payment by such Unit Owner, which demand shall be
accompanied by adequate documentation of such costs.
Notwithstanding the foregoing, if the obligation, right or remedy
in question is a bona-fide emergency or one which, if not
performed or exercised immediately, would result in a material
adverse impact on the business operations of the Unit Owner(s)
(for example, failure to provide snow removal services), then the
Unit Owner(s) may act as quickly, and with only such notice
(verbal or written, and either before or after exercising self-
help rights), as is reasonable under the circumstances, and (b)
if the circumstances contemplated pursuant to Section 14.03.03
arise, then a Unit Owner shall not be required to give the
Association thirty (30) days' notice before exercising such Unit
Owner's right to perform such obligations pursuant to Section
14.03.03. Except as is necessary as a result of an emergency
situation or a situation which would result in a material adverse
impact on business operations if not occurred immediately, any
Unit Owner(s) desiring to exercise its rights under this Section
19.01 agrees to cooperate, reasonably and in good faith, with the
other Unit owner(s), such that all Unit Owners are given a
reasonable opportunity to participate or otherwise respond to the
situation at issue.
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19.02. Other Remedies Preserved-. In connection with any
default under the terms of this Declaration, the Association or
any Unit owner may elect to seek injunctive relief or other
appropriate equitable remedies (including, without limitation, an
action for specific performance) as well as any available legal
remedies and to seek reimbursement from the defaulting party of
the costs and expenses of such action (including, without
limitation, court costs and reasonable attorneys' fees). Each
and all of the rights, powers, options and remedies of the
Association or the Unit Owners contained in this Declaration
shall be cumulative and not exclusive.
20. MISCELLANEOUS.
20.01. Run with Land. The covenants, agreements and
restrictions set forth in this Declaration shall be perpetual in
duration, shall run with the land and shall be binding upon and
inure to the benefit of Declarant, the Association and each Unit
Owner, and their respective heirs, executors, administrators,
legal representatives, successors and assigns and, by all persons
claiming 'y, through or under Declarant, the Association and each
Unit Owner, and their respective heirs, executors,
administrators, legal representatives, successors and assigns.
Upon the sale and transfer of a Unit, the conveying Unit Owner
shall thereafter have no liability for obligations accruing
subsequent to the closing in respect to the Unit.
20.02. Amendment of Declaration; By-Laws.
20.02.01. This Declaration may be amended only in
accordance with the procedures specified in Section 3219 of the
Act, the other Sections of the Act referred to in Section 3219
thereof and the express provisions of this Declaration.
20.02.02. No action to challenge the validity of
an amendment adopted by the Association pursuant to Section 3219
of the Act may be brought more than one year after the amendment
is recorded. Every amendment to the Declaration must be recorded
in Cumberland County in the same records as are maintained for
the recording of deeds of real property. An amendment is
effective only upon recordation. Subject to the limitations
imposed by section 3221 of the Act, no amendment of this
Declaration may be made without the prior written approval of all
Posted Mortgagees holding first liens upon a Unit if and to the
extent that such approval is required by the Act.
20.02.03. Amendments to this Declaration or the
By-Laws must be agreed to by unanimous vote of all Unit Owners.
In addition, approval must be obtained from first lien Posted
[J A0013436\0141deolare9. Doc)
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Mortgagees representing at least sixty-seven percent (67%) of the
.votes of Units that are subject to Mortgages held by Posted
Mortgagees.20.02.04 Intentionally Omitted
20.02.05 If any amendment is properly sent to a
Posted Mortgagee for approval by certified or registered mail
with a return receipt requested, together with a notice that
failure by the Posted Mortgagee to give notice of its objections
to the proposed amendment within thirty (30) days after receipt
thereof shall constitute the Posted Mortgagee's implied approval,
the Posted Mortgagee shall be assumed to have approved the
proposed amendment if the Posted Mortgagee fails to submit a
response to such proposal for an amendment within thirty (30)
days after the proposal is received.
20.02.06 No change, modification or amendment which
adversely affects the rights, privileges or obligations of the
Declarant which are granted under this Declaration, the By-Laws,
or the Act shall be effective without the prior written consent
of the Declarant, until such time as Declarant owns one (1) or
fewer Units.
20.02.07 Except as otherwise provided in this
Declaration, if any amendment is necessary in the judgment of the
Executive Board to correct or supplement any ambiguity or to
correct or supplement any provision of this Declaration,
including the Plats and Plans, the Executive Board, at any time
or from time to time, may, upon unanimous consent and approval,
make a corrective amendment in accordance with Section 3219 of
the Act.
20.03. Termination. Anything contained in this Declaration
to the contrary notwithstanding, an amendment, deed of revocation
or other document regarding the termination of this Condominium
shall only be effective upon the written approval or unanimous
consent and approval of all Members of the Association, and (b)
seventy-five percent (75%) of the holders of Posted Mortgages on
the Units. Other than as provided above, no other person or
entity (including, without limitation, the holders of any other
Posted Mortgages, tenants, subtenants or other lienholders or
parties having a legal or equitable interest in the Condominium
Property or any portion thereof) shall be required to sign,
consent or approve of said amendment, deed of revocation or other
document executed pursuant to this Section 20.03.
20.04. Officers and Directors. The fact that some or all of
the officers, directors, Members or employees of the Association
and the Declarant or its nominees, have heretofore or may
hereafter enter into agreements with the Association or with
third parties will not invalidate any such agreements, and the
Association and its Members, from time to time, will be obligated
_?9- (.1100134300141declarel O.Docj
(July 18,1996; dMta_rj
-to abide by and comply with the terms and conditions thereof.
The purchase of a Unit and the acceptance of the deed therefor by
any party shall constitute the ratification, confirmation and
approval by such purchaser, its heirs, executors, administrators,
legal representatives, successors and assigns, of the propriety
and legality of said agreements, or any other agreements
authorized and permitted by the Condominium Act, this
Declaration, the Articles of Incorporation, or the By-Laws.
20.05. Captions. The captions set forth in this Declaration
are for purposes of reference only and are not to be utilized in
interpreting the restrictions set forth in this Declaration.
20.06. Utilities. Each Unit Owner shall pay for its own
telephone and all other utilities that are separately metered or
billed to each user by the respective utility company. Utilities
which are not separately metered or billed or which serve the
General Common Elements shall be treated as part of the Common
Expenses.
20.07. Taxes.
20.07.01 All property taxes, assessments and other
charges imposed by any taxing authority are to be separately
assessed against and collected on each Unit and the Undivided
Percentage Interest in the Common Elements appurtenant thereto as
a single parcel, as provided by the Condominium Act. Declarant
and the Association shall use reasonable efforts to cause each
taxing authority to separately assess each Unit and the Undivided
Percentage Interest in the Common Elements appurtenant thereto.
20.07.02 In the event, however, that for any year
such taxes are not separately taxed to each Unit, but are taxed
on the Condominium Property as a whole, then each Unit Owner
shall pay its proportionate share thereof in accordance with its
proportionate Undivided Percentage Interest in the Common
Elements. All property taxes, assessments and other charges
imposed by any taxing authority on the Condominium Property as a
whole prior to each Unit being assessed as separate tax parcels,
or if based on an amendment to the Act, such real estate taxes
and assessments assessed against the General Common Elements
shall be paid by the Association and allocated to the Unit owners
as part of the Common Expenses in accordance with the provisions
of Section 9.02.06.
20.07.03 All property taxes, assessments and
other charges imposed by any taxing authority on the Withdrawable
Real Estate shall be paid by the Declarant.
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r,
address, which shall include a building name, and/or number,
street designation, city, state and zip code.
20.08.04. In order to provide an orderly procedure
in the case of title transfers and to assist in the maintenance
of a current roster of Unit Owners, the transferor or transferee
of any Unit shall notify the Secretary of the Association of a
pending or completed title transfer, which notice shall set forth
the name and address of the transferee which shall be used for
the purpose of this Section 20.08.
20.09. Notices to Association. Declarant agrees to promptly
give the Association written notice of any written notice
Declarant receives as the record owner of the Real Estate
pursuant to any agreement related to the Real Estate to which
Declarant is a party. Except as otherwise agreed in writing, at
the time Declarant no longer owns any interest in the Condominium
Property, Declarant agrees to assign to the Association any and
all rights and obligations of Declarant under any third party
agreements inuring to the benefit of the owner of the Real
Estate.
20.10. Consent. (a) Wheresoever in this Declaration a Unit
Owner's consent or approval (for the purpose of this Section
20.10, collectively, "consent") is required of a Unit Owner or
the holder of a Posted Mortgage, such Unit Owner or holder of a
Posted Mortgage, as applicable, shall act within fourteen (14)
days of the date such Unit owner or holder of a Posted Mortgage,
as applicable, is requested (which request shall be accompanied
by all information required to be delivered under this
Declaration, if any), unless a specific paragraph in this
Declaration expressly stipulates an earlier or later period for
such consent. All Unit owners and holders of Posted Mortgages
shall act reasonably in exercising their right of consent, unless
a different standard is expressly set forth in the applicable
provision of this Declaration. If such Unit Owner or holder of a
Posted Mortgage, as applicable, fails to act within such
fourteen-day period (or such other earlier or later period as
otherwise expressly stipulated) by sending a notice containing
the reasons for not granting its consent, then, provided the
request for consent or approval contains a notice in uppercase
type that failure to respond within such 14-day period (or such
other earlier or later period as otherwise expressly stipulated)
shall constitute consent to the request, such Unit Owner or
holder of a Posted Mortgage, as applicable, shall be deemed to
have consented to the request. If any Unit Owner or holder of a
Posted Mortgage, as applicable, who has consented (or has deemed
to have consented) to such request shall fail to sign an
instrument evidencing such consent (such as, by way of example
only, an amendment to this Declaration ) within five (5) days
after request therefor (but in no event earlier than prior to the
[J:10013436\014\declare9.Doc)
-62- (July 1, 1996; divda_r]
;expiration of the aforesaid fourteen-day period), then,
notwithstanding anything contained in this Declaration to the
contrary, Declarant or the Association shall be permitted to
execute same as the attorney-in-fact for such Unit Owner or
holder of a Posted Mortgage, as applicable.
(b) Anything contained in this Declaration
or the By-Laws to the contrary notwithstanding, the Association
shall have no duty to inquire as to whether or not a Unit is
encumbered by a Posted Mortgage. Accordingly, it shall be the
obligation of the holder of a Posted Mortgage to notify the
Association of the name and address of the holder of the Posted
Mortgage and until such notice has been received by the
Association, the holder of such Posted Mortgage shall have no
right to consent.
20.11. No Waiver. No waiver of any default by any Unit
Owner or the Association shall be implied from any omission by
any Unit owner or the Association to take any action in response
to such default if such default continues or is repeated. No
express waiver of any default shall affect any default or cover
any period of time other than the default and period of time
specified in such express waiver. One or more waivers of any
default in the performance of any term, provision or covenant or
any other term, provision or covenant contained in this
Declaration shall not be deemed to be a waiver of any subsequent
default in the performance of the same term, provision or
covenant or any other term, provision or covenant contained in
this Declaration. The consent by any Unit Owner or the
Association to or of any act or request by any other Unit Owner
or the Association requiring consent shall not be deemed to waive
or render unnecessary consent to or of any subsequent similar
acts or requests.
20.12. Remedies Cumulative. Except as otherwise expressly
provided herein, the rights and remedies of every Unit Owner and
the Association under this Declaration shall be deemed to be
cumulative and in addition to any other rights available at law,
in equity or otherwise, and none of such rights or remedies at
law or in equity or otherwise, shall impair any such Unit Owner's
or the Association's standing to exercise any other right or
remedy.
20.13. Several Liability; No Principe/Agent; No
Partnership. Nothing contained in this Declaration, nor any acts
of the Unit Owners including, without limitation, the acts of the
Association in compliance with its maintenance obligations set
forth in this Declaration, shall be deemed or construed by any
Unit Owner to (a) create the relationship of principal and agent
between any of the Unit owners or (b) to create or evidence a
limited or general partnership or a joint venture or any
[J:\001 3436V 14\dedare9.Doc]
-63- [July 1,1996; divita_r]
conveniens or otherwise) to the exercise of such jurisdiction
'over it by any such courts, and agrees that the venue for any
such action shall be in Pennsylvania.
20.18. Exhibits. Each Exhibit referred to in this
Declaration constitutes an integral part of this Agreement.
20.19. Validity. The invalidity of any provision of this
Declaration, the Articles of Incorporation or the By-Laws
(including, without limitation, any invalidation as a result of
the Rule Against Perpetuities) shall not be deemed to impair or
affect in any manner the validity or enforceability or affect the
remainder of this Declaration, the Articles of Incorporation or
the By-Laws, and in such event all of the other provisions of
this Declaration, the Articles of Incorporation and the By-Laws
shall continue in full force as if such invalid provisions had
never been included. In the event of ambiguity, no negative
inference shall be drawn against the party whose counsel drafted
this Declaration, the Articles of Incorporation or the By-Laws,
or the provision(s) of any of the foregoing containing the
ambiguity.
20.20. Rule Against Perpetuities. Pursuant to Section 3203
of the Act, the rule against perpetuities shall not be applied to
defeat any provision of this Declaration, or any instrument,
including but not limited to the By-Laws, executed pursuant to
this Declaration or the Act.
20.21. Special Declarant Rights. Anything contained in this
Declaration to the contrary notwithstanding, Declarant reserves
certain rights (collectively, the "Special Declarant Rights"), in
addition to any expressly contained in the Act, as hereinafter
set forth.
20.21.01. Declarant reserves:
(a) the right to complete, or cause completion
of the General Common Elements and any off-site
improvements required pursuant to the Condominium
Documents;
(b) the unrestricted right to sell any Units
which it continues to own after the recording of this
Declaration;
(c) the right to amend this Declaration in
accordance with Sections 4.01.03 and 5.02 without the
consent of any other person or entity;
(d) the right and option to withdraw the
Withdrawable Real Estate from the Condominium and to
-6$- [J:\0013436\0141dedare9.Doc(
[July 1, 1996; dWa r(
convert the Withdrawable Real Estate to a Unit and
Limited Common Elements pursuant to Section 5.01 of
this Declaration;
(e) the right to grant a continuing, non-
exclusive easement over the roadways from time to
time existing on the Condominium Property for the
purposes of ingress and egress to the Withdrawable
Real Estate in accordance with Section 5.01 of this
Declaration;
(f) the right, to subdivide Units owned by
Declarant, into two or more smaller Units, Common
Elements, or a combination of units and Common
Elements in accordance with Section 8.07;
(g) the easements created pursuant to Section
12.02 of this Declaration;
(h) the right, pursuant to Section 12.10 of this
Declaration (subject to the Posted Mortgagees
consent, if applicable), to dedicate to Hampden
Township, or any other governmental body or agency,
all or any portion of the Condominium Property owned
by Declarant, and to dedicate to any public utility
company providing service to the Condominium
Property, all or any portion of the Common Utility
Lines.
20.21.02 Any one or more of the Special Declarant
Rights, as created and reserved hereunder or elsewhere in this
Declaration, may be assigned by Declarant to any other party, and
such assignment shall be effective as to all persons or parties
affected thereby if at such time the assignment evidencing such
transfer is executed by both the transferor and transferee of the
subject special Declarant Right and such assignment is recorded
in the Office of the Recorder of Deeds in and for Cumberland
County, Pennsylvania.
20.21.03. Upon conveyance of any Unit from Capitol
Products Corporation ("Capitol") to any Olympic Controlled
Entity, Capitol shall assign to the Olympic Controlled Entity the
"Special Declarant Rights" (as herein defined) and upon the
recording of such Assignment in the Office of the Recorder of
Deeds of Cumberland County, Capitol shall no longer be deemed to
be Declarant and shall automatically be released and relieved of
the Special Declarant Rights notwithstanding the fact that
Capitol may hereafter own or continue to own one or more of the
Units. From and after such assignment and upon the recording of
such Assignment in the Office of the Recorder of Deeds of
Cumberland County, the Olympic Controlled Entity shall be deemed
[J:\001 3436\01 4\declareg.Doc)
-66- [July 1. 1996; divita_rj
to be "Declarant" and, accordingly, all of the rights,
privileges, easements and obligations of "Declarant" under this
Declaration and the By-Laws shall be deemed automatically
assigned to and assumed by the Olympic Controlled Entity. The
Olympic Controlled Entity shall be deemed "Declarant" for as long
as an Olympic Controlled Entity holds at least one Unit for sale
or lease in the normal course of business.
20.21.04. The only representations, covenants,
warranties and obligations of Declarant under this Declaration
are those expressly set forth in this Declaration, and Declarant
shall have no other obligations, or be deemed to have made any
other representation, covenant or warranty (by implication or
otherwise).
20.21.05. Declarant, at its option, may at any time,
relinquish the Special Declarant Rights by written notice to the
Association and the Unit Owners. In that event, Declarant shall
be released and relieved of all of the Special Declarant Rights
(except for liabilities accruing prior to such relinquishment).
20.21.06. The Special Declarant Rights shall be in
addition to, and not in limitation of, the rights, privileges,
easements and obligations of Declarant under this Declaration as
an owner of one or more Units and a Member of the Association.
20.22. Assigns.
20.22.01. The owner of a Unit shall have the right
to assign to the tenant of all of such Unit, for the duration of
the term of such tenant's lease for such Unit or such earlier
period of time agreed to by such Unit Owner and its tenant, the
power and right to act on behalf of such Unit Owner in connection
with all of such Unit Owner's rights, privileges, easements and
obligations under this Declaration, the By-Laws and the
Condominium Documents including, without limitation, those
pertaining to a Unit Owner and a Member of the Association
(collectively, "Unit Owner's Rights"). No such assignment shall
be valid unless all of the Unit Owner's Rights are so assigned
and an original fully executed written assignment agreement
("Assignment"), in the form attached hereto as Exhibit "K" or any
other form approved by the Executive Board, is forwarded to the
Association. The Assignment shall provide for an express
assumption of the Unit Owner's Rights by such tenant and a proxy
which grants such tenant the right to exercise such Unit Owner's
voting right in matters relating to the Association, which proxy
must be reasonably acceptable to the Executive Board and in
accordance with any applicable provisions of the By-Laws and any
governing statutes. In such event, the Association and the other
Unit Owners shall be entitled to rely upon the Assignment and the
acts or omissions of such tenant, and the Unit Owner shall have
_67_ [J:V00134361014\declare9.Doc]
(July 1, 1996; divita_j
, L
no recourse against the Association and any other Unit Owner in
connection therewith. The Assignment may be revoked at any time
by the Unit Owner by written notice to the tenant and the
Association (effective upon the Association's receipt of such
notice) that the applicable lease has been terminated or that the
tenant thereunder is in default under such lease beyond any
applicable grace or cure period and such default entitles the
Unit Owner to terminate such lease or to reenter the Unit. The
Association may rely upon such notice and shall have no
obligation to investigate the accuracy of same. In all events,
the Assignment shall automatically be deemed revoked upon the
expiration of the applicable lease. Anything contained in this
Declaration to the contrary notwithstanding, title to the
applicable Unit shall be held in the name of the applicable Unit
Owner and shall not be deemed transferred to such tenant by
virtue of this Section 20.22, and "Unit Owner Rights" shall not
be deemed to include the right to (and such tenant shall not be
permitted to) convey, devise, transfer, mortgage or encumber
title to the Unit, nor shall a Unit Owner's Rights be deemed or
construed to impose any statutory or common law liabilities or
obligations upon such tenant as fee owner of the Unit.
20.22.02. The Unit Owner of Unit No. 5 has
assigned to Home Depot U.S.A., Inc. for the term of that certain
Lease dated , 1996 (the "Lease"), between the Unit Owner
of Unit No. 5 and Home Depot U.S.A., Inc. all of the Unit Owner's
Rights to Unit No. 5, and Home Depot U.S.A., Inc. has accepted
such rights and, except as provided in the Lease, hereby
expressly assumes the obligations of the Unit Owner of Unit No. 5
under this Declaration for the term of the Lease. In no event
shall Home Depot U.S.A., Inc. have the right to incur any
obligation in the exercise of its rights as a Unit Owner under
this Declaration which extends beyond the expiration or earlier
termination of the term of the Lease, nor shall Home Depot
U.S.A., Inc. be deemed to have assumed any statutory or common
_law liabilities or obligations as fee owner of Unit No. 5.
[J A0013436\0141declare9. Doc]
-68- (July 1, 1996; divita_r]
20.23 Delegation Nothing in this Agreement shall be deemed
to prohibit the allocation or delegation of responsibilities
and/or obligations pursuant to separate agreements between or
among Declarant and Unit Owners, or between and among Unit
owners, tenants and/or mortgagees, provided however, such
allocation or delegation shall not relieve any Unit Owner'of its
obligations hereunder.
IN WITNESS WHEREOF, Declarant has caused these presents to
be signed and attested by its proper authorized partner and the
corporate seal of such corporate partner is hereunto affixed this
+n day of 1996.
ATTEST:
A tes
CAPITOL PRODUCTS CORPORATION,
a Pennsylvania corporation
By: Name: ?/ ?, <Spro
Title: « "Z/
OLYMPIC REALTY & DEVELOPMENT
CORPORATIO ion
By:
Z7"'71
David J Schwartz
President
-69-
(J:\0013436\014\declar8.Doc]
[June 26, 1996; divita r]
STATE OF Virginia
ss.
COUNTY OF Chesterfield :
BE IT REMEMBERED, that on this bLA day of , 1996
before me, the subscriber, the undersigned authorit ersonally
appeared Michael Giancaspro,, ?-ho being by me, duly sworn on his oath,
deposed and makes proof to my satisfaction, that he is the Vice
President of CAPITOL PRODUCTS CORPORATION named in the within
Instrument; that Nancy M. Taylor is the Secretary of
said Corporation; that the execution, as well as the making ohs
Instrument, has been duly authorized by a proper resolution of the Board
of Directors of said Corporation that deponent well knows the
corporation seal of said Corporation; and that the seal has been affixed
to said Instrument is the proper corporate seal and was thereto affixed
and said Instrument signed and delivered by said Vice President as
and for the voluntary act and deed of said Corporation, in the presence
of deponent, who thereupon subscribed his name thereto as attesting
witness.
Sworn and subscribed to before me
this day of , 1996.
(6mm04wPOll 9?Pnhsy/?ar??' 4-
ss.
COUNTY OF v h? n
W'q-, ,
My Commissi Expires Dec er 31, 1998
BE IT REMEMBERED, that on this" - & h day of , 1996
before m , the subscriber, the undersigned authority, personally
appeared %u14 7• SLhuprj 7G, who being by me, duly sworn on his oath,
deposed and makes proof to my satisfaction, that he is the President of
OLYMPIC REALTY & DEVELOPMENT CORP RATION named in the within Instrument;
that / Did J ??,??fyis the Secretary of said
Corporation; that the execution, as well as the making of this
Instrument, has been duly authorized by a proper resolution of the Board
of Directors of said Corporation that deponent well knows the
corporation seal of said Corporation; and that the seal has been affixed
to said Instrument is the proper corporate seal and was thereto affixed
and said Instrument signed and delivered by said President as and for
the voluntary act and deed of said Corporation, in the presence of
deponent, who thereupon subscribed his name thereto as attesting
witness.
Sworn and subscribed to be
this day of
[J A0013436\014\declar8.Doc1
[June 26, 1996, dMta r[
Exhibit "A"
Leqal Description of Real Estate
SUGGESTED LEGAL DESCRIPTION
FOR
LOT 1
REVISED MARCH 25, 1996
All that certain parcel or tract of land situate in Hampden
Township, Cumberland County, Pennsylvania, known as Lot 1, of
Capitol Products Corporation, as recorded in the Office of
the Recorder of Deeds for Cumberland County, Pennsylvania, in
Plan Book " ", Volume " ", page " ", more particularly
bounded and described as follows to wit:
BEGINNING at a point on the southern right-of-way line of the
Carlisle Pike, U.S. Route 11, said point also lying on the
eastern right-vf-way line of Brendle Boulevard; Then along
the southern right-of-way line of the Carlisle Pike, V.S.
Route 11, South 63 degrees 58 minutes 19 seconds East 716.71
feet to a P.R. Nail; Then along lands now or formerly of
Cumberland Partners South 26 degrees 03 minutes 34 seconds
West 1310.21 feet to a point on the northern line of Lot 4:
Then along the northern line of Lot 4 North 73 degrees 09*
minutes 53 seconds West 52.77 feet to a point; Then
continuing along Lot 4 North 73 degrees 00 minutes 47 seconds
west 29.13 feet to a point; Then continuing along Lot 4 the
following courses and distances: along a curve to the left
having a radius of 15.00 feet with an are length of 26.79
feet to a point: Then South 02 degrees 39 minutes 23 seconds
West 132.16 feet to a point: Than North 88 degrees 03
minutes 15 eeconds Went 513.97 feet to a point; Then North
8.7 degrees 59 minutes 18 seconds West 259.41 feet to a point:
Then along lands now or formerly of Overnite Transportation
Company North 25 degrees 53 minutes 33 seconds Bast 837.97
feet to a point on the eastern right-of-way line of Brendle
Boulevard; Then along the eastern right-of-way line of
Brendle Boulevard the following courses and distances: along
a curve to the left having a radius of 56.00 feet with an arc
length of 133.86 feet to a point: Then along a curve to the
right having a radius of 20.00 feet with an arc length of
22.72 feet to a point; Then North 25 degrees 53 minutei 33
seconds East 349.53 feet to a point: Then North 35 degrees
34 minutes 22 seconds Bast 82.32 feet to a point; Then along
a curve to the left having a radius of 336.00 feet with an
arc length of 106.18 feet to a point; Then North 13 degrees
46 minutes 17 seconds East 133.42 feet to a point; Then
along a curve to the right having a radius of 264.00 feet
with an are length of 56.48 feet to a point; Then North 26
degrees 01 minutes 41 seconds East 7.18 feet to a point:
Than along a curve to the right having a radius of 100.00
feet with an arc length of 120.39 feet to a point. THE PLACE
OF BEGINNING, containing 27.5815 acs.
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Exhibit "D"
Plats and Plans
Exhibit "E"
Articles of Incorporation
P:XA013436\0141dec1are9.0ocj
(July 1, 19%; divita_r]
Miplofiim Nurr.ar
Entity Number
Filed wrt he Department f Stse on `11R J
S?arwry a the tommenwwtR r
ARTICLES OF INCORPORATION-OOMESTiC NONPROFIT CORPORATION
O3C8:15-=6 (Rev 90)
In compliance with the requirements at iS Pa. C.S.; 1306 (reisting to articles of Incorporation), the undersigned,
desiring to Incorporate a nonprofit corporation, hereby state(s) that:
1. The name at the corporation Is: Hamadan Commons Condominium Association
2 The (a) address of this corporation's InitW registered office in this Commanweath or (b) name at its commercial
registered office provider and the county of venue Is:
(a) 213 Market Street. ith Floor Hsnrisbure PA 17101 Osuehln
Number and Street city stay ZIP County
(b) yo:
Name of Commercial Regisered Office Provider County
For a corporation represented by a eommercW registered off les provider, the county In (b) shall be deemed the county in
which the carponoon is loomed for venue and official publication purposes.
3. The corporation Is Incorporated under the Nonprofit Corporation Law of 1911 for the following purpose or purposes:
To own, maintain and administer the common areas and units In s certain commercial condominium development, and
to administer and enforce the covenants and restrictions and collect and disburse the assessment charges related
thereto.
4. The corporation does not contemplate pecuniary pain or profit, Inaldentai or otherwise.
L The corporation is organised upon a nonstock basis.
6. The corporation shall have members.
7. These Articles of Incorporation may be amended In the manner at the time prescribed by statue, and all rights conferred
upon members herein are granted subject to this reservation.
1. The name and address, Including street and number, if any, of sash Incorporator Is:
Name Address
David J. Schwartz 41q 469 L 12ad SL. Suite 18, New York NY 10012
9. Additional provisions of the articles, If any, attach an 1 112 x 11 sheet.
1 1
IN STIMONY W EAfAf, Inca rator(s) has (have) signed these Articles of Incorporation this !ie'dmy of March.
(Signatlvue? (Signature) (Signature)
1996.
I:1MOC;ttAMPOENAA C
DOCKETING STATEMENT osmis-iuA (Rev !s)
DEPARTMENT OF STATE AND REVENUE
FILING FEE: NONE
This form (flle In trlpllests) and all aeeomasny" doeumsrtte ehM tro magsd to:
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
CORPORATION BUREAU
P.O. BOX 8722
HARRISBURG. PA 17105-8722
Chock proper bona
BUREAU USE ONLY:
oepc of stafa Entity ft wow
Revenue Sox Numew
Filing Period Dat* 3 4 e
sic Report Code
_ Pa. Buslnoss-Stock _ Pa. Business-nonstock _ Ps. Busines"anpamont _ Pa. Professional
_ Pa. Business-Statutory class _ Pa. Business-Cooporathre _ Ps. Nonproflt-stock -x-Pa. Nonprofit-nonstoei
_ Foreign-business _ Foreign-nonprofit _ Motor Vehicle for Hire _ Insurance
_ Foreign Certificate of Authority to 0181A
_ Business Trust
_ Pa. Limited Liability Company
_ Foreign Limited Liability Company
Association registartng as a result d (dl wk bas):
x_ Incorporation (Pa.)
_ Authorisation of a foreign Corporation
_ Organization (Pa.)
_ Pi Restricted Professional Umfbd Uabdity Company
_ Foreign Restricted PrWassional Limited Liability Company
_ Domestication _ Consolidatlen
_ Division _ Summary of Record
1. Name of ssscotadan: Hampden Commons Condominium Association
2 Loeason of (a) IMtlat ngistsfed allies In Psrtftsytvartia w (b) 11141 name and county of the eorameratal regbtafed efflq provider
(a) 213 Madtat Street. 6th Floor Harrfsbura PA 17101 Dauphin
Number and Stra"R0 number and Box City State Zlp Code County
(b) c/o
Name of commarold registered office provider county
3. State or County d Inewporad" OrMization: Dauphin County. Pennsylvania
4. Specified effective dab. N applicable: NIA
S. Federal Identification Number Applied for
6. Describe principal Pennsylvania activity to be engaged In, within one yew of this application data: To own. maintain and
administer the common areas and units in a cartaM commeretai condominium deyefeoment and to administer and enfOlms th
covenants and restrictions and collect and disburse the assessment charoes related thereto.
CSC8:15-134A, (Rev M-2
7. Names, residences and social sseurtty numbers of the chief executive afficer, secretary and treasurer.
Name Address TWO Social Security N
Cavld J. Schwartz 4" E. 32nd St.. Suits 18: New York NY 10012 presdUcJTress.
K professional association. Include officer's professional license numbers with the respective Pennsylvania Professional Board.
4. Location of principal place of business:
219 Market Street. Ith Floor Marrisbure PA 17101
Number and StreeyAO number and Box CRY Stag Zip Code
9. MYili g address If different than fie (location where correspondents, tax report form, *(,Lars to be sent):
424 E. Sind St.. Suite 18: New York NY 10012
10. Act at 04RWW Assembly or eusrority under whbh rou are erganl Od Of trwerperMtsd (Pull dtatlen of sastu- or amor V.Modtr setaen a
separets shoot H men spose to eesuMe?: Nan-erWIt Carveraden Law of the Cornrnanwealth of Pennsylvania. Act of December
21. 1944. P.L 14". No. 177. as amended.
11. Oats and stag of inoogwni fen er efgsnindan (torsion association only): NIA
IL Oats business started In Pennsyhranis (foreign association only): NIA
19. is the as imistlon suthorlsed to Issue capital stock? _ Y1:S _1 NO
14. Assoctedon's fiscal year ends: ommmber 91
This statement shall be domed to have been exeeutsd by the Individual whe sxesuad the sesompanying submlttail. See 19'11. CA 1 490
(refallno m Ynswern falsifleatton 10 eudnerf 1111
Instructions for Completion of Form:
A. A ssparsts oompleted set of topic of Male fens shelf be subntl led ter sash entity or re9isfre6i n rwA" teas the transeatlom
8. The Bureau of Corporodon Taxes In the Pennsylvenia Oepsrtment of Revenue should be noWed of arty address changes.
Notification should be sent to Ow Ptvsessing Division, Bureau of Corporation Taxes, Pa. Department of Revenue, Dept.
21110"S, Narrisbu% PA717126-070 .
C. AN Pennsylvania txrporam tax reports, except those for motor vehicle for hire, must be filed with the Commonwealth on thi
same 111841111 basis in filed with the U.S. government. Motor vehicle for hire, Le., gross reoslpts tax reports. must be filed on
calendar year bask only.
0. The dlsolosure at the social sswrtty numbers of the corporate aftfoers In Paragraph 7 Is voluntary. The numbem am used
to a mn the proper IdentifltsdW of corporation officers by the Department of Revenue in actafdance with the Fiscal Cod,
Exhibit "F"
UNIT
NO.
GROSS FLOOR
AREA (S.F.) UNDIVIDED
PERCENTAGE
INTEREST IN COMMON
ELEMENTS (%)
1 39,089 14.50
2 24,729 9.18
3 26,115 9.69
4 48,510 18.00
5 131,057 48.63
TOTAL 269,500 100
[J:10013436\0141declare9. Doc]
[July 1, 1996; divita_r]
Exhibit "G"
Condominium Documents
A. Formation and Development Documents.
1. This Declaration;
2. The By-Laws of the Hampden Commons Condominium
Association;
3. Consent Order Agreement among Olympic Realty and
Development Corporation, Capital Products Corporation and the
Commonwealth of Pennsylvania Department of Environmental
Resources dated the 27th day of January, 1995;
4. Agreement to provide for Cross Easements and Options,
dated December 21, 1995, among Olympic Realty and Development
Corporation, Cumberland Partners and K-Mart Corporation;
5. Declaration of Reciprocal Easements and Restrictions,
dated December 21, 1995, between Olympic Realty and Development
Corporation and Cumberland Partners;
6. Declaration of Reciprocal Easements and Restrictions,
dated December 21, 1995, between Olympic Realty and Development
Corporation and Cumberland Partners;'
7. Site Development Agreement among Olympic Realty and
Development Corporation, Home Depot U.S.A., Inc. and Circuit City
Stores, Inc.
8. Agreement (regarding condemnation for the Brondle
Boulevard/Simie Street intersection) between the Township of
Hampden and Olympic Realty and Development Corporation, dated
February 29, 1996.
9. Agreement (regarding condemnation
K-Mart Easement Area within property now
Cumberland Partners) between the Township
Realty and Development Corporation, dated
1996.
of that portion of the
or formerly of
of Hampden and Olympic
10. Notice of Condemnation by Dept. of Highways in Deed Book
J-22, page 404.
Documents numbered 5, 6 and 7 collectively constitute the -K-Mart Easements".
[J A0013436\014Wealare9.0oc]
[July 1, 1996; divita_r]
11. Easement in Misc. Book 187, page 759.
12. Easement in Misc. Book 207, page 788.
13. Declaration of Taking in Deed Book 12-Q, page 196.
14.Right-of-way to PP & L Co. in Misc. Book 126, page 431
and as recited in Deed Book T-22, page 304.
15. Right-of-way to PP & L Co, in Misc. Book 102, page 446.
16. Right-of-way to PP & L Co. in Misc. Book 153, page 634.
17. Deed of Declaration in Deed Book K-23, page 528.
18. Right-of-way to PP & L Co. in Misc. Book 267, page 793.
19. Right-of-way to PP & L Co. in Misc. Book 315, page 383.
20. Easement to Riverton Consolidated Water Co. in Misc.
Book 183, page 815.
21. Declaration in Misc. Books 190, page 613 and 190, page
617.
22. Easement Agreement in Misc. Book 190, page 625.
23. Restrictions in Deed Book V-19, page 138.
24. Right-of-way in Deed Book C-20, page 72.
25. Notice of Condemnation by Dept. of Highways in Deed Book
K-22, page 437.
26. Easement Agreement in Misc. Book 184, page 618.
27. Grant of easement in Misc. Book 181, page 634.
28. Setback lines, right-of-ways and all matters as appear
on Plan Book 67, page 37.
B. The Plats and Plans
C. Miscellaneous Documents.
Any other documents, agreements, instruments, entitlements,
approvals, licenses, permits and the like which are required to
[J:\001 3436\01 4\dedare9.Doc]
(July 1, 1996; divita_rj
be entered into and/or issued in connection with the development,
construction, use and operation of the Condominium Property as a
retail shopping center (a copy of which documents, agreements,
instruments, entitlements, approvals, licenses, permits and the
like have been provided to the Unit Owners or prospective Unit
owners prior to the date of recording of this Declaration) as all
of the foregoing may be heretofore or hereafter amended,
modified, supplemented, restated or replaced from time to time.
D. General Provisions.
Copies of the current Condominium Documents shall be kept on
file at the office of the Association at its address set forth in
Section 20.08.01 hereof and shall be open to inspection and or
copying, upon request, at the sole cost and expense of the
requesting party. Any of the aforesaid Condominium Documents
which are separately defined above shall also include, as part of
such defined term, any and all amendments, modifications,
supplements, installments and replacements to the document
specifically referred to above.
(J:\001 3436M 41declare9.Doc]
(July 1, 1996; divita_r]
Exhibit "H"
Withdrawable Property
SUGGESTED LEGAL DESCRIPTION
FOR
LOT lA
MARCH 25, 1996
All that certain parcel or tract of land situate in Hampden
Township, Cumberland County, Pennsylvania, known as Lot lA,
now or formerly of Capitol Products Corporation, more
particularly bounded and described as follows to wit:
BEGINNING at a point at the southwest corner of lands now or
formerly of Cumberland Partners; Then along lands now or
formerly of Cumberland Partners South 74 degrees 06 minutes
40 seconds East 281.54 feat to a point; Then along the
dividing line between Lot lA and Lot 2 South 26 degrees 03
minutes 34 seconds west 320.28 feet to a point on the
northern right-of-way line of a bicycle path and pedestrian
walkway, also known as Lot 4, now or formerly of Capitol
Products Corporation; Then along the northern right-of-way
line of Lot 4 now or formerly of Capitol Products Corporation
North 75 degrees 09 minutes 53 seconds West 282.52 feet to a
point; Then along the dividing line between Lot 1A and Lot 1
North 26 degrees 03 minutes 34 seconds east 325.55 feet to a
point, THS PLACE OF BEGINNING, containing 2.0543 Acs.
(J:10013436WI Ad"w7.0ocl
Nov 13, 1894: div a--rl
LEGAL DESCRIPTION
FOR
LOT 2
JANUARY 10. 1996
All that certain parcel or tract of land situate in Hampden
Township. Cumberland County, Pennsylvania, known as Lot 2, of
Capitol Products Corporation, as recorded in the Office of
the Recorder of Deeds for Cumberland County, Pennsylvania, in
Plan Book " ", Volume if ". Page " ", more particularly
bounded and described as follows to wit:
BEGINNING at a point on the dividing line between lands now
or formerly of Cumberland Partners and lands now or formerly
of Capitol Products Corporation. said point lying South 74
degrees 06 minutes 40 seconds East 281.54 feet from the
southwest corner of lands now or formerly of Cumberland
Partners; Then along lands now or formerly of Cumberland
Partners South 74 degrees 06 minutes 40 seconds East 365.96
feet to a point; Then along the dividing line between Lot 2
and Lot 3 South 26 degrees 03 minutes 34 seconds West 313.42
feet to a point on the northern right-of-way line of a
bicycle path and pedestrian walkway, also known as Lot 4 now
or formerly of Capitol Products Corporation; Then along the
northern right=of-way line of Lot 4 now or formerly of
Capitol Products Corporation North 75 degrees 09 minutes 53
seconds west 367.24 feet to a point; Then along the dividing
line between Lot 2 and Lot 1 North 26 degrees 03 minutes 34
seconds East 320.28 feet to a point. THE PLACE OF BEGINNING,
containing 2.6201 Acs.
LEGAL DESCRIPTION
FOR
LOT 3
JANUARY 10, 1996
All that certain parcel or tract of land situate in Hampden
Township. Cumberland County, Pennsylvania, known as Lot 3, of
Capitol Products Corporation, as recorded in the Office of
the Recorder of Deeds for Cumberland County, Pennsylvania, in
Plan Book." ", Volume " ", Page " ", more particularly
bounded and described as follows to wit:
BEGINNING at a concrete monument at the southeast corner of
lands now or formerly of Cumberland Partners; Then along
lands now or formerly of Twigg Family Trust South 00 degrees
06 minutes 34 seconds West 311.02 feet to a point on the
northern right-of-way line of a bicycle path and pedestrian
walkway, also known as Lot 4 now or formerly of Capitol
Products Corporation; Then along the northern right-of-way
line of Lot 4 now or formerly of Capitol Products Corporation
North 75 degrees 09 minutes 53 seconds West 499.84 feet to a
point; Then along the dividing line between Lot 3 and Lot 2
North 26 degrees 03 minutes 34 seconds East 313.42 feet to a
point;. Then along lands now or formerly of Cumberland
Partners South 74 degrees 06 minutes 40 seconds East 359.84
feet to a concrete monument, THE PLACE OF BEGINNING,
containing 3.0000 Acs.
Exhibit "I"
Rules and Regulations
Each Unit Owner shall comply with, abide and be bound by the
following Rules and Regulations:
1. Each Unit Owner shall store all trash and garbage within the
Limited Common Elements appurtenant to its Unit, in adequate
containers, which shall be maintained in a neat and clean
condition. All trash and garbage shall be located in the
area shown therefor on the Site Plan and in such manner so
as not to create or permit any health hazard or fire hazard.
Each Unit owner shall arrange for regular removal of said
trash and garbage at such Unit Owner's expense.
2. Unit Owner shall not use any portion of their respective
Units as living quarters, sleeping apartments or lodging
rooms.
3. No Unit Owner shall conduct any going-out-of-business, fire,
bankruptcy, auction or other distress sale in or from its
Unit, unless and until satisfactory proof has been supplied
to the Association that the person intending to conduct such
sale has complied meticulously with all legal requirements
including, without limitation, the rules and regulations of
the Federal Trade Commission.
4. No Unit Owner shall install on or about its Unit any
exterior amplifiers or similar devices (except within the
garden center located on Unit 5) and shall not use in, on or
about its Unit any advertising medium which may be heard or
experienced outside the Unit, such as, but not limited to,
flashing lights, searchlights, loudspeakers, phonographs,
television or radio broadcasts.
5. Each Unit Owner shall give the Association prompt notice of
any accident, fire or damage occurring on or to its
respective Unit or the Common Elements.
6. Each Unit Owner shall keep the sidewalks immediately
adjoining its Unit clean and free from ice and snow and
shall not place and/or permit any rubbish, obstructions or
merchandise in such areas.
7. Each Unit Owner shall keep its respective Unit clean,
orderly, sanitary and free from objectionable odors and from
insects, vermin and other pests, and, except with respect to
the operation of a pet or pet supply store, shall not keep
[J:=l 343610141declare9. Doc]
[July 1, 1996; difti r]
any live animals of any kind about or upon its Unit.
8. No Unit Owner shall permit the overnight parking of motor
vehicles within the General Common Elements, provided
however, the foregoing shall not prohibit delivery trailers
to remain overnight loading/receiving facilities appurtenant
to a Unit Building or within the Reserved Common Element
designated to a Unit during periods of outside sales and/or
promotional activity therein.
9. No Unit Owner nor any person claiming by or through any Unit
Owner, shall, in or on any part of the Common Elements:
(a) Vend, peddle or solicit orders (except within the
Reserved Common Elements pursuant to Section 7.04 of
the Declaration and during "sidewalk sales" pursuant to
Section 14.07 of the Declaration.
(b) Intentionally Omitted
(c) Solicit signatures on any petition or for any other
purpose, disseminate any information in connection
therewith, or distribute any circular, booklet,
handbill, placard, or other material.
(d) Solicit membership in any organization, group, or
association, or solicit contributions for any purpose.
(e) Parade, rally, patrol, picket, demonstrate, or
engage in any conduct that might tend to interface with
or impede the use of any of the Common Elements by any
customer, business invitee, employee, or Unit Owner of
the Shopping Center, create a disturbance, attract
attention, or harass, annoy, disparage, or be
detrimental to the interest of any of the retail
establishments within the Shopping Center.
10. The following minimum criteria for exterior building signage
and other signs visible from the exterior of a Unit has been
established for the purpose of assuring an outstanding
Shopping Center, and for the mutual benefit of all Unit
Owners. Conformance will be strictly enforced; and any
installed non-conforming signs must be brought into
conformance at the expense of the Unit Owner.
(a) No animated, flashing or audible signs will be
permitted.
(b) No visible lamps will be permitted.
[J:10013436Z 141dedare9. Docj
[July 1, 1996; divita_r]
(c) All signs (other than temporary signs not exceeding
ten square feet) shall be professionally prepared. All
electrical signs shall bear the UL label, and their
installation shall comply with all applicable building
and electrical codes.
(d) No visible raceways, crossovers or conduits will be
permitted.
(e) All cabinets, conductors, transformers and other
equipment shall be concealed. Visible fasteners will
not be permitted.
(f) Electrical service to all building signs shall be
on the Unit Owner's meter.
(g) No lewd, obscene, pornographic or sexually
suggestive text or graphics will be permitted.
(h) All signs, bolts, fastenings and clips shall be of
stainless steel, aluminum, brass or bronze. No ferrous
metal materials of any type will be permitted.
(i) All exterior signs exposed to the weather shall be
mounted at least one-half of an inch (2") from the
building wall to permit proper dirt and water draining.
(j) All letters shall be fabricated using full welded
construction.
(k) All penetrations of the building structure required
for sign installation shall be neatly sealed in a
watertight manner.
(1) No labels will be permitted on the exposed surface
of signs except those required by local ordinance which
shall be applied in an inconspicuous location.
(m) Each Unit owner shall be fully responsible for the
operations of its sign contractor(s) in connection with
sign installation.
(J A0013436\0141declare9. Doc]
[July 1, 1996; divita_r]
Exhibit "J"
Common Expense Allocation
UNIT
NO. NET FLOOR
AREA (S.F.) COMMON EXPENSE
ALLOCATION (%)
1 39,089 14.50
2 24,729 9.18
3 26,115 9.69
4 48,510 18.0
5 131,057 48.63
TOTAL 100
(J A0013436\014\dedare9. Docl
(July 1, 1996; divita_rl
Exhibit "K"
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT AND PROXY
("Assignment") made on this day of , 199_, by
(hereinafter called "Unit Owner") and
(hereinafter called "Tenant").
F-1I IE.EEETFi:
1. Definitions. All capitalized terms not separately defined
in this Assignment shall have the same meanings as defined in that
certain Declaration of condominium (the "Declaration") for Hampden
commons condominium made by Capitol Products Corporation, a
Pennsylvania corporation, dated , 199_ and recorded
in the Clerk's Office of Cumberland County on in Deed
Book , Page , as same may be amended from time to time.
2. Assignment of Unit Owner's Rights. FOR VALUE RECEIVED,
Unit Owner, pursuant to and in accordance with Section 20.22 of the
Declaration, hereby transfers, assigns, conveys and sets over unto
Tenant for the duration of the term of that certain lease, dated
, 199_, by and between Unit Owner,. as landlord, and
Tenant, as tenant (the "Lease"), or such earlier period of time
agreed to by Unit Owner and Tenant, the Unit Owner's Rights for
Unit No.
3. Assumption of Unit Owner's Rights. Tenant hereby assumes
all of the Unit Owner's Rights.
4. Proxy. Unit Owner appoint
authorizes Tenant to act as agent
Owner's interest in the Hampden
("Association") standing in the nam
the Association ("Proxy"). Tenant
of Unit Owner as to all matters tha,
s Tenant its agent and proxy and
and proxy with respect to Unit
Common Condominium Association
e of Unit Owner on the books of
is authorized to act in behalf
come before the members of the
Association for action, whether at a meeting of the members or by
written consent of members in lieu of a meeting, in the same manner
and with the same effect as if Unit Owner were acting. This Proxy
may be revoked by Unit Owner pursuant to paragraph 5 below and
unless revoked shall be extended for successive period of one (1)
year.
(J 90013436\0141declare l 0. Doc)
(July 18,1996; d 0ta_j
5. Revocation. This Assignment (including, without
limitation, the Proxy) may be revoked at any time by Unit Owner by
notice to Tenant and the Association, effective upon the
Association's receipt of such notice, that the Lease has been
terminated or that Tenant is in default thereunder beyond any
applicable grace or cure period and such default entitles Unit
Owner to terminate the Lease or to reenter the Unit.
6. Governing Law. This Assignment shall be governed by and
construed under the laws of the Commonwealth of Pennsylvania.
7. Further Assurances. Unit Owner and Tenant do hereby agree
to execute and deliver such further instruments of conveyance,
transfer and assignment and to take such other and further action
as the other reasonably may request to effectuate the purpose of
this Assignment.
8. Conflict. This Assignment shall in no event limit, amend
or modify Unit Owner's and Tenant's respective rights and
obligations under the Lease. In the event of a conflict between
this Assignment and the Lease, the Lease shall control.
(J A001343610141dechare 10. Doc]
(July 18,1996; dWRa_r]
9. Miscellaneous. Anything contained in this Assignment to
the contrary notwithstanding, title to the applicable Unit shall be
held in the name of Unit owner and shall not be deemed transferred
to Tenant by virtue of this Assignment, and "Unit Owner Rights"
shall not be deemed to include the right to (and Tenant shall not
be permitted to) convey, devise, transfer, mortgage or encumber
title to the Unit.
IN WITNESS WHEREOF, Unit Owner and Tenant have caused this
Assignment to be executed as of the date first above written.
WITNESS/ATTEST:
WITNESS/ATTEST:
UNIT OWNER:
[Name]
By:
Its:
TENANT:
[Name]
By:
Its:
]J:100134361014Weolarel O.Doc]
(July 18,1996; dMta_r]
STATE OF
SS:
COUNTY OF )
BE IT REMEMBERED, that on this day of
1993 before me, the subscriber, the undersigned authority,
personally appeared , who being by me, duly sworn
on his oath, deposed and makes proof to my satisfaction, that he
is the President of named in the
within Instrument; that is the
Secretary of said Corporation; that the
execution, as well as the making of this
Instrument, has been duly authorized by a proper resolution of
the Board of Directors of said Corporation that deponent well
knows the corporation seal of said Corporation; and that the seal
has been affixed to said Instrument is the proper corporate seal
and was thereto affixed and said Instrument signed and delivered
by said President as and for the voluntary act and deed
of said Corporation, in the presence of deponent, who thereupon
subscribed his name thereto as attesting witness.
Sworn and subscribed to before me
this day of , 1994.
STATE OF )
SS:
COUNTY OF )
I CERTIFY that on this day personally appeared before me
, to me known to be, or proved to me on the basis of
satisfactory evidence, to be a general partner of
the partnership which
executed the within and foregoing document, known to me, or
proved tome on the basis of satisfactory evidence, to be the
person who executed said document on behalf of said partnership,
and acknowledged under oath, to my satisfaction, that the
partnership is named in such document and he personally signed,
sealed and delivered such document as general partner and the
partnership's free and voluntary act and deed for the uses and
purposes therein mentioned.
Witness my hand and official seal hereto affixed this
day of , 1994.
(J:\001 343M01 4\dedare9.DocJ
(July 1, 1 996; divita_r]
Exhibit "L"
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Exhibit "M"
Pylon Sign Plans
(J:=13436ZI 41dedare9.Doc)
(July 1, 1996, dWita_r]
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-------- Original Message --------
Subject: HAMPDEN COMMONS SHOPPING CENTER- HH GREGG EXPANSION
From: davidschwartz@olympicrd.com
Date: Tue, November 03, 2009 2:13 pm
To: "Robert Ambrosi" <rambrosi@arcproperties.com>, "Gil Rivera"
<grivera@arcproperties.com>, bkline@herschmanarchitects.com
Cc: "Jeff Staub" <jstaub@dauphinengineering.com>, "Robert DiVIta"
<rdivita@sillscummis.com>, "RON LUCAS" <ROML@stevenslee.com>,
jnewman@sillscummis.com
i ag
It has come to our attention that construction work has begun on the former Circuit City store for HH
Gregg at Hampden Commons Shopping Center in Mechanicsburg, PA.
We understand that HH Gregg intends to expand it's loading dock beyond the expansion area allowed
under the Condominium Documents for Unit #1.
We are unaware of the extent of the work being undertaken at present, however please be advised that
no exterior expansion work on the Unit #1 building may be done until such time as the
Condominium Documents have been amended and all the requirements of the Condominium
Documents have been met. Any expansion work that is done prior to this amendment being fully
executed is in violation of the underlying agreements and must be stopped immediately.
Please confirm that only interior work is being done at present, and that you intend to submit amended
agreements to Bob DiVita, counsel for the Condo Association for review and approval.
David J. Schwartz
Olympic Realty & Development Corp.
424 East 52nd St. Suite 1B
New York, NY 10022
Tel: (212) 753-9333 x 104
Fax: (212) 753-8937
Cell: (917) 796-8855
email: davidschwartz@olympicrd.com
web: www.olympicrd.com
This message (and any associated files) is the property of
Olympic Realty & Development Corporation
and is intended only for the use of the individual or entity to
which it is addressed and may contain information that is confidential,
subject to copyright or constitutes a trade secret. If you are not
the intended recipient you are hereby notified that any dissemination,
copying or distribution of this message, or files associated with this
message, is strictly prohibited. If you have received this message
in error, please notify us immediately by calling our corporate office
at 212-753-9333 and deleting this message from your computer.
Internet communications cannot be guaranteed to be secure or error-free
as information could be intercepted, corrupted, lost, destroyed,
arrive late or incomplete, or contain viruses. Therefore,
Olympic Realty & Development Corporation or it's affiliates do not accept
responsibility for any errors or omissions that are present in this
message, or any attachment, that have arisen as a result of e-mail
transmission. If verification is required, please request a hard-copy
version of this message.
EXHIBIT
B
11/24/2009
4161 0
-------- Original Message --------
Subject: [SPAM] FW: HH Gregg @ Hampden Commons Condominium
From: Lindsay Vetzner <Lindsay.Vetzner@hhgregg.com>
Date: Fri, November 20, 2009 8:59 am
To: "David Schwartz" <davidschwartz@olympicrd.com>
David,
Please give me a call to discuss.... 317-525-6643.
Lindsay
Page 2 of 3
From: Gil Rivera [mailto:grivera@arcproaerties.com]
Sent: Thursday, November 19, 2009 5:19 PM
To: Robert DiVIta; Lindsay Vetzner; Sidney Donica
Cc: Jeffrey H. Newman; David Schwartz; RON LUCAS; Justin Leach
Subject: Re: HH Gregg @ Hampden Commons Condominium
Lindsay:
We have been informed by the Condo Association attorney that your contractors have been performing
work in the loading expansion area prior to the Amendment being approved and executed by the
respective unit owners.
Please inform your contractors to immediately stop all work being done in the expansion area until such
time we have a fully executed Amendment.
Please call me with any questions.
Thank you.
-GR
From: Robert DiVita <RDIVITA@sillscummis.com>
Date: Thu, 19 Nov 2009 17:00:06 -0500
To: 'grivera@arcproperties.com'<grive ra@arcproperties.com>
Cc: Jeffrey H. Newman<JNEWMAN@sillscummis.com>;
'davidschwartz@olympicrd.com'<davidschwartz@olympicrd.com>;
'ROM L@stevenslee.com' <ROM L@stevenslee.com>;
'Justin.Leach @waIlerlaw.com'<Iustin.Leach@walierlaw.com>
Subject: HH Gregg @ Hampden Commons Condominium
As you are aware, this office represents the Hampden Commons Condominium Association.
It has come to the attention of the Association that HH Gregg, despite assurances to the contrary, is performing
work on the exterior of the Unit 1 Building and within the Common Elements of the Condominium beyond
the bounds of the Future Expansion Area appurtenant to Unit No. 1. Unless and until the proposed Amendment
to the Condominium Declaration has been approved and executed by all Unit Owners, any construction activity
within the Common Elements of the Condominium beyond the bounds of the Future Expansion Area
appurtenant to Unit No. 1 is in violation of the Declaration and is to cease.
Your immediate written confirmation as Owner of Unit No. 1, on behalf of itself and the tenants and occupants
of Unit No. 1, that all construction activity within the Common Elements of the Condominium beyond the bounds
of the Future Expansion Area appurtenant to Unit No. 1 will cease immediately will preclude the need for further
enforcement action in accordance with the terms of the Declaration.
11/24/2009
Page 3 of 3
The Association's election herein not to cite other or additional violations of the Declaration shall not be deemed
or construed as, and is not, a waiver thereof. Nothing herein, or in any prior discussion, communication or
correspondence, either oral or written, by or between representatives of the Association or other Unit Owners
shall be deemed or construed as a waiver of any of the terms of the Declaration, and the Association and each
Unit Owner reserves all rights and remedies available to it under the Declaration.
Your immediate response is imperative.
The Condominium Declaration Amendment will be distributed to all Unit Owners for their review shortly.
Robert R. DiVita, Esq.
Sills, Cummis & Gross, P.C.
One Riverfront Plaza
Newark, New Jersey 07102
Phone: (973) 643-5782
Fax: (973) 643-6500
E-Mail: rdivita sillscummis.com
NOTICE: The contents of this email and any attachments to it contain confidential and/or legally privileged information from the law firm of Sills Cummis &
Gross P.C. This information is only for the use of the intended recipient. If you are not the intended recipient, you are hereby notified that any disclosure,
copying, distribution, or the taking of any action in reliance on the contents of the contained information is strictly prohibited and that the documents should be
returned to this firm immediately. In this regard, if you have received this email in error, please notify us by email immediately.
"Although this email and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received
and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by Sills Cummis & Gross P.C. for any loss or
damage arising in any way from its use.
This email message has been scanned for viruses by Mimecast.
11/24/2009
r
EXHIBIT
E
CERTIFICATE OF SERVICE
I, MARK D. BRADSHAW, ESQUIRE, certify that on this date, I served a
certified true and correct copy of the foregoing Complaint in Equity upon the following by email
as expeditious service, in addition to the use of Certified Mail as required by the Rules of Civil
Procedure:
Via Email:
Gil Rivera, ARC Properties, Inc.
grviera@arcproperties.com
Marc Perel, ARC Properties, Inc.
mperel@arcproperties.com
Via Certified Mail:
Marc Perel
ARC Properties, Inc.
1401 Broad Street
Clifton, NJ 07013
Wilmington Trust Company
Registered agent for
Bond-Circuit IX Delaware Business Trust
Rodney Square North
1100 North Market Street
Wilmington, DE 19890
Date: November 25, 2009 Mark D. Eir9d_shavV'
11
SL1 963525v1 /066860.00004
(4)
FILED-',"FICE
CAF THE 1):;, 7tinto
2009 NO 25 PN 3: 2 -1
t
ri-NN;SY
?o 0j
.c
Mark D. Bradshaw, Esquire
Attorney I.D. No. 61975
Charles M. Suhr, Esquire
Attorney I.D. No. 72923
17 North Second Street
16th Floor
Harrisburg, PA 17101
(717) 234-1090
(717) 234-1099 {Facsimile)
mdb@stevenslee.com
cmc@stevenslee.com
HAMPDEN COMMONS CONDOMINIUM
ASSOCIATION and HAMPDEN OFFICE
INVESTORS, L.P.
V.
Counsel for Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
BOND-CIRCUIT IX DELAWARE No. ,-
BUSINESS TRUST and ARC PROPERTIES,
INC.
MOTION FOR PRELIMINARY INJUNCTION
AND NOW COME PLAINTIFFS, Hampden Commons Condominium Association and
Hampden Office Investors, L.P., and make the following Motion for a Preliminary Injunction,
Stating in Support thereof as follows:
1. Plaintiffs have contemporaneously herewith filed a Complaint in equity, the
allegations and exhibits of which are incorporated by reference.
2. In short, the Complaint recites that, in derogation of a specific and detailed
Declaration of Condominium which governs the real estate at issue, Defendants have elected to
expand their retail store onto land they do not own.
3. Defendants' representatives were repeatedly notified that their actions were
improper and unlawful, yet they elected to persist, and, indeed, to quicken the pace of their
unlawful construction activities.
S L l 963 612 v l /066 860.00004
y ?
4. Defendants are in breach of the Declaration of Condominium and are trespassing
upon land reserved as General Common Elements for the benefit of all Unit owners
Plaintiffs are entitled to Specific Performance of the Declaration of
Condominium, which, in this case, is equivalent to preliminary injunctive relief, namely, that
Defendants be enjoined from further construction activities unless and until all pre-conditions set
forth in the Declaration of Condominium have been complied-with. Plaintiffs are also entitled to
the Ejectment of Defendants, who are in continuous trespass upon land the Trust does not own
Association.
6. Plaintiffs have a clear legal right to the relief they seek.
7. Defendants' trespass and breaches of the Declaration have caused, and are
causing, immediate and irreparable harm to the Condominium Association and all of its Unit
owners.
8. Plaintiffs lack any meaningful remedy at law for the unlawful appropriation of
General Common Elements by Defendant.
9. The public interest, including respect for the sanctity of contracts and property
boundaries, favors Plaintiffs.
10. No harm would result in the issuance of an injunction which merely requires
Defendants to meet its contractual obligations and cease misappropriating the property of others.
11. Any "harm" to Defendants which could result from the requested injunction is
entirely the result of their own arrogance and refusal to follow contractually required procedures.
2
SLl 963612v1 /066860.00004
WHEREFORE, Plaintiffs respectfully request that this Motion for Preliminary Injunction
be granted. A Proposed Order is attached for the convenience of the Court.
Dated: November 25, 2009 Respectfully submitted,
STEVENS & LEE
By:
Mark D. Bradshaw, E?quire
Attorney I.D. No. 61975
Charles M. Suhr, Esquire
Attorney I.D. No. 72923
17 North Second Street
16th Floor
Harrisburg, PA 17101
(717) 234-1090
(717) 234-1099 {Facsimile}
mdb@stevenslee.com
cmc@stevenslee.com
SLl 963612v 1 /066&60.00004
CERTIFICATE OF SERVICE
I, MARK D. BRADSHAW, ESQUIRE, certify that on this date, I served a
certified true and correct copy of the foregoing Complaint in Equity upon the following and in
the manner indicated, addressed as follows:
Via Email:
Gil Rivera, ARC Properties, Inc.
grviera@arcproperties.com
Marc Perel, ARC Properties, Inc.
mperel@arcproperties.com
Via Certified Mail:
Marc Perel
ARC Properties, Inc.
1401 Broad Street
Clifton, NJ 07013
Wilmington Trust Company
Registered agent for
Bond-Circuit IX Delaware Business Trust
Rodney Square North
1100 North Market Street
Wilmington, DE 19890
Vv
Date: November 25, 2009 Mark D. Bradshaw
5
SLl 963612v 1 /066860.00004
I HC
2V0Id N'10 1' 215 Fr i : (2 9
HAMPDEN COMMONS
CONDOMINIUM ASSOCIATION
and HAMPDEN OFFICE
INVESTORS, L.P., .
Plaintiffs .
v
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
BOND-CIRCUIT IX DELAWARE
BUSINESS TRUST, ARC .
PROPERTIES, INC., and .
H.H. GREGG, INC.,
Defendants NO. 09-8223 CIVIL TERM
IN RE: RECORD DECLARED CLOSED
ORDER OF COURT
AND NOW, this 22nd day of February, 2010, upon
consideration of Plaintiffs' Amended Motion for a Preliminary
Injunction, and following a second period of hearing, the record
is declared closed and the matter is taken under advisement.
By the Court,
/ Mark D. Bradshaw, Esquire
17 North Second Street
16th Floor
Harrisburg, PA 17101
For Plaintiffs
~ Matthew M. Haar, Esquire
Penn National Insurance Plaza
2 North Second Street
7th Floor
Harrisburg, PA 17101
For Defendant H.H. Gregg, Inc.
/Tom Kamvosoulis, Esquire
101 Eisenhower Parkway
Roseland, NJ 07068
For Arc Properties, Inc.
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HAMPDEN COMMONS AND
CONDOMINIUM ASSOCIATION and
HAMPDEN OFFICE INVESTORS, L.P.,
Plaintiffs,
v.
BOND-CIRCUIT IX DELAWARE BUSINESS
TRUST, ARC PROPERTIES, INC., and H.H.
GREGG, INC.,
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PEI~SYVAA
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CIVIL ACTION N0.09-8223' `; °R ,:.
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ENTRY OF APPEARANCE
Thomas Kamvosoulis, Esq., of the firm Brach Eichler, LLC, 101 Eisenhower Parkway,
Roseland, New Jersey 0706$, hereby enters his appearance on behalf of Defendants, Bond-
Circuit IX Delaware Business Trust and Arc Properties, Inc~with respect to this matter.
Dated: February 19, 2010
BRACH
By:
101 Eisenhower Parkway
Roseland, New Jersey 07068
(973) 22"a-57u0 plYarz
(973) 228-7852 fax
HAMPDEN COMMONS
AND CONDOMINIUM
ASSOCIATION and HAMPDEN
OFFICE INVESTORS, L.P.,
Plaintiffs
v.
BOND-CIRCUIT IX
DELAWARE BUSINESS
TRUST, ARC PROPERTIES,
INC., and H.H. GREGG, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
NO. 09-8223 CIVIL TERM
IN RE: PLAINTIFFS' AMENDED
MOTION FOR PRELIMINARY INJUNCTION
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 23rd day of February, 2010, upon consideration of Plaintiffs'
Amended Motion for a Preliminary Injunction, and following a hearing held on
December 16, 2009, and February 22, 2010, and the court, inter alia, not being persuaded
by the evidence that greater injury would result from refusing the preliminary injunction
than from granting it, the amended motion for a preliminary injunction is denied.
NOTHING IN THIS ORDER is intended to represent a finding by the court as to
the likelihood or unlikelihood of Plaintiffs' prevailing on the merits at the trial.
~' Mark D. Bradshaw, Esq.
17 North Second Street
16`t' Floor
Harrisburg, PA 17101
Attorney for Plaintiffs
BY THE COURT,
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/Matthew M. Haar, Esq.
Penn National Insurance Plaza
2 North Second Street
7~' Floor
Harrisburg, PA 17101
Attorney for Defendant
H.H. Gregg, Inc.
./ Thomas Kamvosoulis, Esq.
101 Eisenhower Parkway
Roseland, NJ 07068
Attorney for Defendants
Bond-Circuit IX Delaware
Business Trust and Arc Properties, Inc.
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Michael A. Finio, Esquire (38872)
Matthew M. Haar, Esquire (85688)
SAUL EWING LLP
2 North Second Street, Seventh Floor
Harrisburg, Pennsylvania 17101
717-257-7508 - mhaar@saul.com
Counsel for Defendant HH Gregg, Inc.
T r' F n-`Ifi ICf
C' 'r?17 P.?1=n ?CTS
7f 1 Eg c."-' 2 r! 1) " 12:
G. _ J c
1 1 L iA\ a r?.J 4.,+ s.. 1? a
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
HAMPDEN COMMONS CONDOMINIUM
ASSOCIATION and HAMPDEN OFFICE
INVESTORS, L.P.,
Plaintiffs,
V.
BOND-CIRCUIT IX DELAWARE BUSINESS
TRUST, ARC PROPERTIES, INC., AND
HH GREGG, INC.,
Defendants.
No. 09-8223 Civil
JURY TRIAL DEMANDED
NOTICE TO PLEAD
To Plaintiffs:
You are hereby notified to file a pleading in response to the attached New Matter
and Counterclaim within twenty (20) days or a judgment may be entered against you.
SAUL EWIN
Dated: September 30, 2010
Michael A. Finio, Esquire (38872)
Matthew M. Haar, Esquire (85688)
SAUL EWING LLP
2 North Second Street, Seventh Floor
Harrisburg, Pennsylvania 17101
(717) 257-7508 - mhaar@saul.com
Attorneys for Defendant
H.H. Gregg, Inc.
159919.2 9/30/10
Michael A. Finio, Esquire (38872)
Matthew M. Haar, Esquire (85688)
SAUL EWING LLP
2 North Second Street, Seventh Floor
Harrisburg, Pennsylvania 17101
717-257-7508 - mhaar@saul.com
Counsel for Defendant HH Gregg, Inc.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
HAMPDEN COMMONS CONDOMINIUM
ASSOCIATION and HAMPDEN OFFICE
INVESTORS, L.P.,
Plaintiffs,
V. No. 09-8223 Civil
BOND-CIRCUIT IX DELAWARE BUSINESS
TRUST, ARC PROPERTIES, INC., AND
HH GREGG, INC.,
Defendants. JURY TRIAL DEMANDED
DEFENDANT HH GREGG, INC.'S ANSWER TO PLAINTIFFS' FIRST AMENDED
COMPLAINT IN EQUITY WITH NEW MATTER AND COUNTERCLAIM
Defendant HH Gregg, Inc. ("HH Gregg"), by and through its counsel, Saul Ewing
LLP, submits this Answer to Plaintiffs' First Amended Complaint in Equity with New Matter
and Counterclaim, averring as follows:
Denied. HH Gregg is without sufficient information to form a belief as to the
averments of this paragraph and the averments are accordingly denied.
2. Denied. HH Gregg is without sufficient information to form a belief as to the
averments of this paragraph and the averments are accordingly denied.
159919.2 9130110
3. Admitted.
4. Admitted.
5. Admitted.
6. Denied. The Declaration of Condominium ("Declaration") is a written document,
the terms of which are self-evident.
7. Admitted, with the qualification that the Hampden Commons Shopping Center
("Center") is located in Hampden Township.
8. Admitted.
9. Admitted in part and denied in part. HH Gregg is without knowledge as to what
was known to HCCA and Office Investors and any allegations as to their awareness are denied.
HH Gregg admits that it is a retailer, specifically of consumer electronics and appliances, and
that it renovated Unit #I at the Center.
10. Admitted in part and denied in part. HH Gregg is without knowledge as to what
concerned HCCA and Office Investors and any allegations as to their concerns are denied. HH
Gregg admits that it constructed an expanded loading dock at Unit #1. HH Gregg denies as a
legal conclusion that the loading dock impinges upon or impairs the Common Elements of the
Center. To the extent that the averment is one of fact, HH Gregg similarly denies the averment.
To the contrary, the loading dock does not impinge upon or impair the Common Elements of the
Center.
11. Denied as a conclusion of law to which no responsive pleading is required. To
the extent the averments of paragraph 11 are deemed to be averments of fact, they are similarly
denied as the Declaration is a written document, the terms of which are self-evident.
159919.2 9/30110
-2-
12. Denied as a conclusion of law to which no responsive pleading is required. To
the extent the averments of paragraph 12 are deemed to be averments of fact, they are similarly
denied as the Declaration is a written document, the terms of which are self-evident.
13. Denied as a conclusion of law to which no responsive pleading is required. To
the extent the averments of paragraph 13 are deemed to be averments of fact, they are similarly
denied as the Declaration is a written document, the terms of which are self-evident.
14. Admitted in part and denied in part. HH Gregg admits that it constructed an
expanded 3-bay loading dock attached to the rear of Unit #1 pursuant to engineering drawings
that were supplied in advance to all unit owners. HH Gregg denies that the Trust or ARC
decided to build the loading dock. To the contrary, HH Gregg decided to build the expanded
loading dock and the Trust and ARC, among others, approved the construction. The remaining
averments of paragraph 14 are denied as conclusions of law to which no responsive pleading is
required.
15. Denied. To the contrary, HH Gregg submitted engineering drawings regarding
the proposed expanded loading dock, including information regarding changes to parking areas,
to David Schwartz in his capacity as president of HCCA and Mr. Schwartz approved those plans.
By way of further answer, whether Mr. Schwartz submitted the materials to the HCCA Executive
Board is irrelevant to the claims against HH Gregg, as Mr. Schwartz had the apparent authority
to approve the engineering drawings on behalf of HCCA.
16. Denied. To the contrary, HH Gregg has submitted all permit applications and
issued permits to Mr. Schwartz in his capacity as president of HCCA.
17. Denied. To the contrary, all necessary parties agreed to amend the Declaration.
At Mr. Schwartz's request HH Gregg provided a $5,000 retainer to Robert DiVita, Esq. at Sills
159919.2 9/30110
-3-
Cummis to draft the amendment to the Declaration. On information and belief Mr. Schwartz
directed Mr. DiVita not to provide the draft amendment to the Declaration to HH Gregg or any
unit owner. It is inequitable for Mr. Schwartz on one hand to purposefully delay the amendment
of the Declaration and on the other to complain that the amendment has not been completed.
18. Denied as a conclusion of law to which no responsive pleading is required.
19. Denied. To the contrary, after being provided with engineering drawings Mr.
Schwartz and others approved the expansion of Unit #1.
20. Denied. To the contrary, HH Gregg sought and received authorization from
Plaintiffs to build the expanded loading dock.
21. Admitted in part and denied in part. HH Gregg admits on information and belief
that HCCA acting through Mr. Schwartz sent the November 3, 2009, email attached to the
Amended Complaint as Exhibit B. HH Gregg is without sufficient information to form a belief
as to the remaining averments of paragraph 21, and those averments are therefore denied.
22. Denied. HH Gregg is without sufficient information to form a belief as to the
averments of paragraph 22, and those averments are therefore denied.
23. Denied. HH Gregg never represented to HCCA or Office Investors that its work
on Unit #1 was only interior. HH Gregg provided engineering drawings to Mr. Schwartz
reflecting the proposed expansion to the loading dock, which project Mr. Schwartz approved.
24. Denied. To the contrary, HH Gregg made no false or mistaken statements to
HCCA or Office Investors.
25. Admitted in part and denied in part. HH Gregg admits receiving the email
attached to the Amended Complaint as Exhibit D. HH Gregg is without sufficient information to
159919.2 9/30/10
-4-
form a belief as to the truth of the remaining averments of paragraph 25, and those averments are
therefore denied.
26. Denied. To the contrary, HCCA and Office investors, through Mr. Schwartz and
their counsel, directed HH Gregg to stop construction despite the fact that Mr. Schwartz had
previously approved the project.
27. Denied. HH Gregg is without sufficient information to form a belief as to the
averments of paragraph 27, and those averments are therefore denied.
28. Denied. HH Gregg is without sufficient information to form a belief as to the
averments of paragraph 28, and those averments are therefore denied.
29. Admitted in part and denied in part. HH Gregg admits that as of November 24,
2009, it was constructing the loading dock previously approved by Mr. Schwartz. HH Gregg is
without sufficient information to form a belief as to the remaining averments of paragraph 29,
and those averments are therefore denied.
30. Admitted.
31. Denied as conclusions of law to which no responsive pleading is required. To the
extent the averments of paragraph 31 are averments of fact, they are similarly denied. HH Gregg
proceeded with construction of the loading dock expansion only after receiving approval from,
among other persons, Mr. Schwartz. Those approvals and changes were not appropriately
reflected in the Declaration due the intransigence of Mr. Schwartz in failing to provide the draft
amendments to the Declaration prepared by Sills Cummis.
32. Denied. To the contrary, HH Gregg proceeded with construction of the project
previously approved by Mr. Schwartz and others.
33. Denied. To the contrary, neither the Trust nor ARC engaged in such conduct.
159919.2 9/30/10
-5-
34. Denied. The Declaration is a written document, the terms of which are self-
evident.
35. Denied. The averments of paragraph 35 are legal conclusions to which no
responsive pleading is required. To the extent the averments of paragraph 35 are deemed to be
averments of fact, they are similarly denied. To the contrary Plaintiffs through Mr. Schwartz
approved the expansion of which they now complain.
36. Denied. HH Gregg is without information sufficient to form a belief as to the
truth of the averments of paragraph 36, and those averments are therefore denied. By way of
further response, Mr. Schwartz, recognizing the beneficial impact the opening of HH Gregg
would have on the Center, represented to HH Gregg that it could begin construction once it
received approvals from all necessary persons with formal amendment of the Declaration to
occur simultaneously.
37. Denied. HH Gregg is without information sufficient to form a belief as to the
truth of the averments of paragraph 37, and those averments are therefore denied. By way of
further response, HH Gregg paid Sills Cummis to draft the revisions to the Declaration, but those
efforts were improperly frustrated by Mr. Schwartz.
38. Denied. The averments of paragraph 38 are conclusions of law to which no
responsive pleading is required. To the extent the averments of paragraph 38 are deemed to be
averments of fact, the Declaration is a written document, the terms of which are self-evident.
39. Denied. The averments of paragraph 39 are conclusions of law to which no
responsive pleading is required. To the extent the averments of paragraph 39 are deemed to be
averments of fact, the Declaration is a written document, the terms of which are self-evident.
159919.2 9/30/10
-6-
40. Denied. To the contrary, Mr. Schwartz previously approved the proposed
construction project by HH Gregg and had no legitimate basis to precipitate the filing of the
lawsuit.
41. Denied. The averments of paragraph 41 are denied as conclusions of law to
which no responsive pleading is required. To the extent the averments of paragraph 41 are
deemed to be averments of fact, they are similarly denied. To the contrary, HH Gregg has at all
times acted in good faith and pursuant to the authorizations issued by Mr. Schwartz and others.
COUNT I-BREACH OF CONTRACT/SPECIFIC PERFORMANCE
42. HH Gregg incorporates by reference the averments of paragraphs 1-41.
43. Denied. The averments of paragraph 43 are conclusions of law to which no
responsive pleading is required. To the extent the averments of paragraph 43 are deemed to be
averments of fact, they are similarly denied as the Declaration is a written document, the terms of
which are self-evident.
44. Denied. The averments of paragraph 44 are conclusions of law to which no
responsive pleading is required. To the extent the averments of paragraph 44 are deemed to be
averments of fact, they are similarly denied. To the contrary, HH Gregg has acted properly at all
times and Plaintiffs therefore could not have suffered harm.
WHEREFORE, Defendant HH Gregg respectfully requests that the Court enter
judgment in its favor and against Plaintiffs, along with all costs, attorney's fees, and such other
relief the Court deems just and proper.
COUNT II-TRESPASS/EJECTMENT
45. HH Gregg incorporates by reference the averments of paragraphs 1-44.
1599191 9/30/10
_7_
46. Denied. The averments of paragraph 46 are conclusions of law to which no
responsive pleading is required. To the extent the averments of paragraph 46 are deemed to be
averments of fact, they are similarly denied. To the contrary, HH Gregg built the expanded
loading dock after its plans to do so were approved by Mr. Schwartz.
47. Denied. HH Gregg is without information sufficient to form a belief as to the
truth of the averments of paragraph 47, and such averments are therefore denied.
WHEREFORE, Defendant HH Gregg respectfully requests judgment in its favor and
against Plaintiffs, along with all costs, attorney's fees, and such other relief the Court deems just
and proper.
NEW MATTER
48. Plaintiffs have failed to state a claim for which relief can be granted.
49. Plaintiffs have not suffered any damages.
50. To the extent Plaintiffs have suffered any damages, those damages were caused
by others and not HH Gregg.
51. Plaintiffs' alleged damages are too speculative to permit recovery.
52. Some or all of Plaintiffs' claims and requests for relief are moot.
53. Plaintiffs have failed to join all necessary parties.
54. HH Gregg has not violated any terms of the Declaration.
55. Plaintiffs through Mr. Schwartz approved HH Gregg's improvements to Unit #1.
56. Plaintiffs' claims are barred by the doctrine of unclean hands.
57. Plaintiffs' claims are barred by estoppel.
58. Plaintiffs are not entitled to costs or attorney's fees.
59. Mr. Schwartz at all relevant times has been President of HCCA.
159919.2 9/30/10
-8-
60. Mr. Schwartz at all relevant times has been president of Olympic Realty.
61. HCCA at all relevant times has paid Olympic to manage the day to day operations
of the Center.
62. On information and belief Olympic Realty owns Office Investors which in turn
owns Unit #2 at the Center which at all relevant times has been occupied by Staples and Unit #5
which at all relevant times has been occupied by Home Depot.
63. Mr. Schwartz's actions are attributable to and binding upon HCCA, Olympic and
Office Investors.
64. All owners and tenants benefit from HH Gregg occupying and operating a
business out of Unit #l, compared to if the unit had been left vacant as it had been since Circuit
City went into bankruptcy.
65. ARC notified Mr. Schwartz on July 24, 2009, that it was in lease negotiations
with HH Gregg for Unit #1, that HH Gregg wanted to expand the loading dock at Unit #1 to
accommodate three tailgates, and that ARC and HH Gregg wanted approval by the HCCA to
expand the loading dock.
66. Also on July 24, 2009, ARC provided to Mr. Schwartz preliminary unit plans
showing the proposed expansion of the loading dock.
67. Mr. Schwartz stated in an email on July 24, 2009, that "HH Gregg will be a
terrific add to Hampden Commons. We will do whatever we can to accommodate them."
68. By email dated July 29, 2009, Mr. Schwartz stated that HH Gregg should "get
verbal agreement from everyone with documents to follow." Mr. Schwartz authorized
construction to begin, once approvals were obtained, "simultaneously" with amending the
Declaration.
1599192 9/30/10
-9-
69. Mr. Schwartz received site plans on August 3, 2009, showing all proposed
changes to the exterior of Unit #1, including the expanded loading dock and changes to the
parking area behind Unit #1.
70. Plaintiffs approved HH Gregg's construction of an addition to Unit #I as depicted
in the plans submitted to Mr. Schwartz on August 3, 2009.
71. Mr. Schwartz, on behalf of HCCA, Olympic and Office Investors, suggested to
HH Gregg that the Declaration should be amended to reflect the approved expansion by Robert
R. DiVita, Esq. of Sills, Cummis & Gross, P.C., who was counsel to HCCA and drafted the
original Declaration.
72. Sills Cummis received a $5,000 retainer from HH Gregg on November 4, 2009, to
draft revisions to the Declaration to reflect HH Gregg's expansion of the loading dock.
73. Sills Cummis drafted revisions to the Declaration to reflect HH Gregg's approved
expansion of the loading dock and submitted the draft revisions to Mr. Schwartz.
74. Despite the fact that HH Gregg had paid for revisions to the Declaration, Mr.
Schwartz in November 2009 and thereafter refused to turn the draft revised Declaration over to
HH Gregg and, on information and belief, directed Sills Cummis not to deliver the draft revised
Declaration to HH Gregg.
75. Since approximately August 2009, Mr. Schwartz has been trying to obtain
approval from other unit owners to expand Unit #2 at the Center currently occupied by Staples.
76. On information and belief, Mr. Schwartz has been blocking documentation of HH
Gregg's expansion of Unit #1 for leverage in obtaining approval for his proposed expansion of
Unit #2 and to force HH Gregg to pay Sills Cummis for all changes to the Declaration, despite
the fact that some of the proposed revisions would relate to the expansion of Unit #2.
159919.2 9/30/10
-10-
77. Mr. Schwartz's actions, imputed to HCCA, Olympic and Office Investors,
constitute inequitable conduct and unclean hands.
WHEREFORE, Defendant HH Gregg respectfully requests that the Court enter
judgment in its favor and against Plaintiffs, along with all costs, attorney's fees, and such other
relief the Court deems just and proper.
COUNTERCLAIM-DECLARATORY JUDGMENT
HH Gregg v. Plaintiffs
78. HH Gregg incorporates the averments of paragraphs 1-77.
79. There is uncertainty and controversy based upon the actions of the Plaintiffs
which could be terminated by a declaration from this Court that Plaintiffs through Mr. Schwartz
approved HH Gregg's construction at Unit #1 and that the Declaration should be amended
accordingly.
80. Declaratory relief is necessary and proper, and will settle and afford relief from
uncertainty and insecurity with respect to rights, status and other legal relations.
81. HH Gregg is entitled to a declaration from this Court that Plaintiffs through Mr.
Schwartz approved HH Gregg's expansion of Unit #1, and the Court should use its equitable
powers to require Plaintiffs to cease their improper efforts to frustrate amendment of the
Declaration and failing that enter an Order amending the Declaration to reflect HH Gregg's
construction at Unit # 1.
WHEREFORE, Defendant HH Gregg respectfully requests that the Court enter a
declaratory judgment in its favor, compel Plaintiffs to work in good faith to amend the
Declaration, or failing that to enter an Order amending the Declaration, and award HH Gregg all
costs, attorney's fees, and such other relief the Court deems just and proper.
159919.2 9/30/10
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Respectfully submitted,
SAUL EWING LLP
Dated: September 30, 2010 "1 04",
ichael A. Finio, Esquire (38872)
Matthew M. Haar, Esquire (85688)
SAUL EWING LLP
2 North Second Street, Seventh Floor
Harrisburg, Pennsylvania 17101
(717) 257-7508 - mhaar@saul.com
Attorneys for Defendant
H .H. Gregg, Inc.
159919.2 9/30/10 -12-
'V1 HI MATIO
1, Lindsay Vetmer, hereby verify that I am authorized to execute this verification
on behaif of H.H. (ftgg, Inc., that I have read the foregoing Answer with Now Matter and
Counterclaim, and that %c averments of fact therein are true and correct to the best of my
knowledge, information, and belief. I make this statement subject to 18 Pa. C.S_A. § 4904
relating to unworn falsification to authorities.
Dated: September
2010 '?Olle
'VI say Vetmer
IS9919291SW19
CERTIFICATE OF SERVICE
I hereby certify that on September 30, 2010,1 served a true and correct copy of
the foregoing Answer with New Matter and Counterclaim, via First Class mail, postage prepaid,
upon the following:
Mark D. Bradshaw, Esquire
STEVENS & LEE
17 North Second Street, Sixteenth Floor
Harrisburg, Pennsylvania 17101
Counsel for Plaintiffs
Thomas Kamvosoulis, Esq.
Brach Eichler, LLC
101 Eisenhower Parkway
Roseland, NJ 07068
Counsel for ARC Properties, Inc.
Wilmington Trust Company
Registered agent for
Bond-Circuit IX Delaware Business Trust
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Defendant
Date: September 30, 2010
att ew M. as
159919.2 9/30/10
HAMPDEN COMMONS
CONDOMINIUM ASSOCIATION
and HAMPDEN OFFICE
INVESTORS, L.P.,
Plaintiffs
v
BOND-CIRCUIT IX DELAWARE
BUSINESS TRUST, ARC
PROPERTIES, INC., and
H.H. GREGG, INC.,
Defendants
i
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 09-8223 CIVIL TERM
IN RE: TRANSCRIPT OF PROCEEDINGS ;~°~
~ ~
~~ "~
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1 ~, ~''''''~{
t~ ~ ~ ~ '1
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Proceedings held before the HONOR~$,~E nb. ~~
--; rv .*.~'~ ~'
Wesley Oler, Jr., J., Cumberland County Cour~ho~e,~.~
Carlisle, Pennsylvania, on February 22, 2010, in
Courtroom Number One.
APPEARANCES:
Mark D. Bradshaw, Esquire
17 North Second Street
16th Floor
Harrisburg, PA 17101
For Plaintiffs
Matthew M. Haar, Esquire
Penn National Insurance Plaza
2 North Second Street
7th Floor
Harrisburg, PA 17101
For Defendant H.H. Gregg, Inc.
Tom Kamvosoulis, Esquire
101 Eisenhower Parkway
Roseland, NJ 07068
For ARC Properties, Inc.
ORIGINAL
'~r i~~~,~~1~15~~~3d
~~ ~~ Wd 8 110 Di~iZ
~~,t~~'1C'~•~O1-i~.C~u~~ ~~l ~~t
,,~
FOR THE PLAINTIFF
David Schwartz
FOR H. H. GREGG
Lindsay vetzner
By Mr. Bradshaw
By Mr. Kamvosoulis
u
INDEX TO WITNESSES
DIRECT CROSS REDIRECT RECROSS
4 16 28
39
69
86
2
INDEX TO EXHIBITS
FOR THE PLAINTIFF
MARKED ADMITTED
Ex. No. 2 - site plan 19 21
Ex. No. 3 - plan enlargement 19 21
Ex. No. 4 - photograph 24 27
FOR H. H. GREGG
Ex. No. 8 - e-mail 7 9
Ex. No. 9 - e-mail 9 11
Ex. No. 10 - e-mail 89 91
Ex. No. 11 - e-mail 90 92
Ex. No. 12 - e-mail 92 93
Ex. No. 13 - photographs 12 13
Ex. No. 14 - photographs 52 53
Ex. No. 15 - photographs 61 63
3
1 THE COURT: Thank you. Please be seated.
2 This is the time and place for a resumption of the hearing
3 on a request for preliminary injunction in the case of
4 Hampden Commons and Condominium Association versus
5 Bond-Circuit Nine, Delaware Business Trust at No. 09-8223
6 Civil Term. In addition to the counsel who were present at
7 the last hearing, I understand Tom Kamvosoulis, Esquire,
8 representing ARC Properties, Inc., is present as well.
9 Mr. Kamvosoulis, are you able to hear me?
10 MR. KAMVOSOULIS: Yes, Judge. Thank you.
11 THE COURT: All right. Thank you.
12 MR. KAMVOSOULIS: I want to thank the Court
13 for allowing me to participate by phone on such short
14 notice.
15 THE COURT: Certainly. And at the time of
16 adjournment during the last period of hearing, I believe the
17 Plaintiffs were continuing to present their case-in-chief,
18 and David Schwartz was being subjected to Cross Examination
19 by counsel for Defendant H.H. Gregg, Inc.
20 MR. HAAR: That's correct, Your Honor.
21 THE COURT: Go ahead.
22 Whereupon,
23 DAVID SCHWARTZ
24 having been duly sworn, testified as follows:
25 MR. HAAR: Thank you, Your Honor. If I could
4
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just get some exhibits arranged?
THE COURT: For the record, would you state
your name again, please?
THE WITNESS: David Schwartz.
THE COURT: Thank you.
CROSS EXAMINATION
BY MR. HAAR:
Q Mr. Schwartz, I put in front of you the
exhibits that were identified and entered into evidence at
the last hearing, and I believe where we left off we were
speaking about H. H. Gregg Exhibit 7. Do you have that
e-mail in front of you?
A Yes, I do.
Q And I believe we have identified this in the
record as a string of e-mails -- or the most recent e-mail
at the top. It was from you to a Gil Rivera, correct?
A Correct.
Q If you turn to the second page of that
e-mail, please, are you with me?
A Yes.
Q Towards the top of that second page, part of
this e-mail string is an e-mail from you to a gentleman
named Tom Gallagher at Home Depot, correct?
A Correct.
Q And this e-mail was sent August 24th of 2009,
5
1 correct?
2 A Correct.
3 Q And the statement that you make in this
4 e-mail is the deal with H. H. Gregg is an excellent addition
5 to Hampden Commons, correct?
6 A Correct.
7 Q And you go on to say, as you can imagine,
8 deals are tough to get done in this environment. So any
9 help you can provide to secure Home Depot's approval of this
10 deal is appreciated, correct?
11 A Correct.
12 Q So you were speaking, with many of the hats
13 that you were wearing, that this deal with H. H. Gregg is
14 something that was in everybody's best interests to make
15 happen, correct?
16 A Correct.
17 Q And you will agree with me that you were
18 asking for Home Depot's approval because they are a tenant
19 in one of the units in this condominium association,
20 correct?
21 A Correct.
22 Q Mr. Schwartz, you are familiar with a
23 gentleman named Bob DiVita, correct?
24 A Correct.
25 Q He is an attorney, correct?
6
~ ~
1 A Correct.
2 Q He is an attorney who represents the
3 condominium association, correct?
4 A Correct.
5 Q I am going to hand you what has been -- what
6 we will mark as H. H. Gregg Exhibit 8.
~ (H. H. Gregg Exhibit 8 was marked for
8 identification .)
9 BY MR. HAAR:
10 Q I have handed you what has been marked as
11 H. H. Gregg Exhibit 8, and this appears to be an e-mail
12 string dated November 3, 2009, correct?
13 A Correct.
14 Q And at the top of this e-mail, you were one
15 of the parties listed as being cc'd on the e-mail, correct?
16 A Correct.
1~ Q And the e-mail is to Bob DiVita, the same Bob
18 DiVita we were just talking about, correct?
19 A Correct.
20 Q And it's from Justin Leach, correct?
21 A Correct.
22 Q And you knew Justin Leach to be one of the
23 attorneys who was working for H. H. Gregg, correct?
24 A Correct.
25 THE COURT: And who was Mr. DiVita?
7
•
1 MR. HAAR: He is an attorney.
2 THE COURT: I need the witness to tell me who
3 Mr. DiVita w as.
4 THE WITNESS: Mr. DiVita is counsel for the
5 condominium association.
6 THE COURT: All right.
7 BY MR. HAAR:
g Q So in this particular instance he works for
9 you, he wasn't working for H. H. Gregg, correct?
10 A Mr. DiVita?
11 Q Correct?
12 A That's correct.
13 Q All right. And the e-mail from Justin Leach
14 to Bob DiVita reads, thanks, Bob, the $5,000 retainer
15 payment was overnighted to you for delivery tomorrow.
16 Please call me upon your receipt. Did I read that
17 correctly?
lg A Yes.
19 Q And you did, in fact, receive this e-mail,
20 correct?
21 A Correct.
22 MR. HAAR: Your Honor, I would move for the
23 admission of H. H. Gregg Exhibit 8.
24 MR. BRADSHAW: Without objection.
25 THE COURT: Mr. Kamvosoulis, do you have any
8
~ ~
1 objection to the admission of that exhibit?
2 MR. KAMVOSOULIS: No, Your Honor.
3 THE COURT: All right. Defendant H. H. Gregg
4 Exhibit 8 is admitted.
5 BY MR. HAAR:
6 Q You will agree with me, Mr. Schwartz, that
7 the reason H. H. Gregg was sending $5,000 to your lawyer was
8 to amend the condominium documents, correct?
9 A Correct.
10 Q And do you have any reason to believe that
11 Mr. DiVita did not receive that $5,000 retainer payment?
12 A No.
13 Q Since November 3rd to the present, has
14 Mr. DiVita provided a draft condominium agreement to any of
15 the parties to this lawsuit?
16 A Well, he couldn't because he didn't have the
17 -- the engineering exhibits that were part and parcel to the
18 diagram.
19 (H. H. Gregg Exhibit No. 9 was marked for
20 identification.)
21 BY MR. HAAR:
22 Q Mr. Schwartz, I have handed you what has been
23 marked as H. H. Gregg Exhibit 9. You will agree with me
24 that this is an e-mail dated November 11th, 2009, correct?
25 A I'm sorry. Can you repeat the question?
9
~ ~
1 Q Sure. You will agree with me that this is an
2 e-mail dated November 11, 2009, correct?
3 A Correct.
4 Q And attached to the e-mails are some
5 schematic drawings, correct?
6 A Correct.
7 Q You were cc'd on this e-mail and received it
8 on November 11th, 2009, correct?
9 A Correct.
10 Q And, again, this was sent by Justin Leach to
11 Bob DiVita, correct?
12 A Correct.
13 Q And Mr. Leach writes, Bob, in regard to the
14 Amendment to the Declaration at Hampden Commons in
15 Mechanicsburg, attached are the permitted plans for the
16 proposed expansion of the old Circuit City (soon to be H. H.
17 Gregg) building. Did I read that correctly?
18 A Yes.
19 Q Do you agree with me that Mr. DiVita was
20 provided with permanent plans for the expansion of what is
21 now the H. H. Gregg box, correct?
22 A No.
23 Q Well, are the plans not attached to this
24 e-mail?
25 A No, not all of them.
10
1 Q Let's come at it this way.
2 MR. HAAR: I move for the admission of H. H.
3 Gregg Exhibit 9.
4 THE COURT: Mr. Bradshaw.
5 MR. BRADSHAW: Without objection.
6 THE COURT: And Mr. Kamvosoulis?
~ MR. KAMVOSOULIS: No objection, Judge.
g THE COURT: Thank you. Defendant H. H. Gregg
9 Exhibit 9 is admitted.
10 (Defendant H. H. Gregg Exhibit No. 9 was
11 admitted into evidence.)
12 BY MR. HAAR:
13 Q Mr. Schwartz, you will agree with me that
14 Mr. DiVita never wrote back and said, these plans aren't all
15 I need, please send more, correct?
16 A No, I had never seen anything like that. I
17 don't know.
lg Q Looking at Defendant's -- excuse me, H. H.
19 Gregg Exhibit 8 and H. H. Gregg Exhibit 9, Mr. DiVita was
20 provided with a $5,000 retainer to draw up an amendment to
21 the Condominium Association document, and was provided with
22 permitted plans for the expansion to H. H. Gregg, and you
23 will agree with me that he still, as of today, February
24 22nd, has not provided a draft amendment to the condominium
25 agreement, correct?
11
1 A He has not provided the document, that's
2 correct.
3 Q Now, Mr. Schwartz, I believe you testified
4 last time that you were involved with this project, meaning
5 the Hampden Commons Condominium Association, from the
6 beginning, correct?
7 A Correct.
g Q And so you were familiar with the time period
9 when Circuit City was occupying this particular building,
10 correct?
11 A That's correct.
12 Q And will you agree with me that at no period
13 of time when Circuit City occupied the building were they
14 barred from utilizing the loading dock in the back of their
15 building?
16 A Correct.
17 (H. H. Gregg Exhibit 13 was marked for
18 identification.)
19 BY MR. HAAR:
20 Q Mr. Schwartz, I have handed you a picture
21 that we have identified as H. H. Gregg Exhibit 13, and will
22 you agree with me that this is a picture of a portion of the
23 Hampden Commons condominium area?
24 A It appears that way.
25 Q And would you agree. with me that it depicts
12
1 part of two buildings, correct?
2 A Correct.
3 Q And the building on the right is the H. H.
4 Gregg building that we are here about this morning, correct?
5 A Correct.
6 Q And the building on the left is the Staples
7 building, correct?
8 A That's correct.
g Q And you are the principle of the owner of the
10 Staples building, correct?
11 A That's correct.
12 Q And in between those two buildings is a
13 driveway, correct?
14 A That's correct.
15 Q And does this picture accurately depict that
16 particular area of the Hampden Commons?
17 A I believe so.
18 MR. HAAR: Your Honor, I move for the
19 admission of H. H. Gregg Exhibit 13.
20 THE COURT: Mr. Bradshaw.
21 MR. BRADSHAW: without objection.
22 MR. KAMVOSOULIS: No objection.
23 THE COURT: All right. Thank you.
24 Defendant H. H. Gregg Exhibit 13 is admitted.
25 (H.H. Gregg Exhibit No. 13 was admitted into
13
1 evidence.)
2 BY MR. HAAR:
3 Q Now, you will agree with me, Mr. Schwartz,
4 that wearing your hat as owner of the Staples building you
5 would like to expand that building, correct?
6 A Correct.
7 Q You want to move the outer wall of that
8 building over towards H. H. Gregg, correct?
9 A Correct.
10 Q But you currently do not have an agreement to
11 make that happen, correct?
12 A Correct.
13 Q And you are in negotiations to make that
14 happen with Arc Properties, correct?
15 MR. BRADSHAW: Objection, relevance.
16 THE COURT: Mr. Kamvosoulis, do you join in
17 the objection or oppose it?
18 MR. KAMVOSOULIS: I have no objection to the
19 question, Judge.
20 THE COURT: All right. Mr. Haar, what is the
21 relevance?
22 MR. HAAR: The relevance of the question,
23 Your Honor, is that this lawsuit seems to be brought as
24 leverage to secure a personal interest to one of the
25 tenants, specifically the Staples center, rather than any
14
1 objection to what's actually going on at the H. H. Gregg
2 building.
3 THE COURT: Okay. I will permit the
4 question.
5 MR. HAAR: Would you please read the question
6 back?
7 (The court reporter read back the last
8 question.)
9 THE WITNESS: Once the expansion areas opened
10 up for unit one beyond what was already agreed to and
11 provided for in the condominium declaration, as one of the
12 unit owners we were looking for expansion areas as well. I
13 can't speak for the other unit owners. I don't know what
14 expansion areas they might want, but certainly there had
15 been discussions about that. Whether there will be
16 expansion areas or not doesn't frankly matter to us anymore.
17 And it is frankly irrelevant because we are
18 going to enforce the rules of the Condominium Declaration,
19 and certainly we would never expand or build our building
20 without a signed amendment to the Condominium Declaration,
21 which is required under the Condominium Declaration. Nobody
22 can build anything or amend the agreement or do any work
23 unless the agreement is formally signed and amended by all
24 unit owners.
25 BY MR. HAAR:
15
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Q So the answer to my question would be that
yes, you're, negotiating with ARC Properties to expand the
Staples building?
A There were discussions to do that, correct.
Q And have you discussed with ARC and others
the possibility of making that amendment to -- any amendment
related to that expansion a part of the same amendment to
the condominium documents relating to the H. H. Gregg
building?
A Yes.
MR. HAAR: No further questions, Your Honor.
THE COURT: Okay. Mr. Bradshaw.
REDIRECT EXAMINATION
BY MR. BRADSHAW:
Q Mr. Schwartz, do you have before you a
document that was marked in our last session H. H. Gregg 3?
A Yes.
Q And do you recall being asked some questions
about this particular e-mail that you sent laying out
essentially a 13 step plan for moving the H. H. Gregg
expansion forward?
A Yes, we were trying to facilitate the H. H.
Gregg deal and gave what we felt was an overall outline of
everything that needed to be done in order to accommodate
H. H. Gregg coming into this center.
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Q All right. And do you recall being asked
questions essentially along the lines that this document
provided your authorization for H. H. Gregg to move forward
with its construction in the absence of a formally executed
Declaration Condominium Amendment?
A No. We never gave formal approval for this
expansion.
Q Okay. I may have misled you with the form of
my question. Do you recall counsel suggesting that this
document authorized H. H. Gregg to move forward even without
the declaration being amended?
A Yes, I do.
Q All right. Now, you have since had the
opportunity to review your own e-mail, which is the subject
of H. H. Gregg 3?
A Yes.
Q Do you believe that the interpretation or
characterization that was being urged of this e-mail at the
last hearing is accurate?
A I'm sorry. Could you repeat the question?
Q Sure. If you look at point 6, 7, and 8, Ron
-- and point 6, Ron to record condo amendment when fully
executed if required. Ron refers to Ron Lucas?
A That's correct.
Q All right. A lawyer in my office?
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A That's correct.
Q All right. And number 8 talks about what is
involved in securing the building permit?
A Yes.
Q Well, is it your understanding the
construction activities could move forward at all prior to
the issuance of a building permit?
A No, and that is against Township Code.
Q All right. So did you mean to suggest in
this e-mail that before even the building permit was issued,
the amendment to the Declaration of Condominium would be
formally executed and recorded?
A What I meant -- again, I'm not sure I
understand your question, but what I meant was that in
securing the building permit, without signing the amendment,
I mean could be taken out of order. One wasn't dependent on
the other. However, the commencement of any construction
required the Condominium Declaration to be amended and
signed by all of the unit owners. And to my knowledge none
of the unit owners signed off.
Q Has that been your position consistently
throughout the entire discussions from last summer up until
today?
A Yes.
Q Have you ever authorized H. H. Gregg, ARC
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Properties or anyone else to commence construction
activities on unit one prior to the formal execution and
filing of an amendment to the Declaration of Condominium?
A No.
Q You need to let me finish.
A I'm sorry.
Q Your answer is no, you have not?
A That's correct.
Q Now, is it your understanding, based on your
familiarity with the Declaration of Condominium itself, that
you would even have the authority to waive the requirements
of the declaration if you had been asked?
A No, I do not have the authority.
Q And were you ever asked specifically for a
waiver of the requirements that the Declaration be amended?
A No.
(Plaintiffs' Exhibits 2 and 3 were marked for
identification.)
BY MR. BRADSHAW:
Q Sir, I have placed before you what we have
marked for identification as Plaintiff's Exhibit 2 and 3.
Beginning with Exhibit 2, can you explain what that is for
us, please?
A This is an overall site plan of Hampden
Common Shopping Center. It shows a birds eye view, a top
19
1 down view, of the site. On this side is Carlisle Pike. On
2 this side is Ronald Boulevard, and it shows the five
3 condominium units with the associated parking.
4 MR. BRADSHAW: Excuse me, for a moment, Your
5 Honor. As a housekeeping matter, Mr. Haar, do you object to
6 the introduction of 2 and 3? I would like the Judge to be
7 able to follow along with the testimony, if there is no
8 objection.
9 MR. HAAR: No objection, Your Honor.
10 MR. BRADSHAW: I would move for the admission
11 of Plaintiffs' Exhibits 2 and 3.
12 THE COURT: And what was Plaintiffs' Exhibit
13 3?
14 BY MR. BRADSHAW:
15 Q Mr. Schwartz, can you identify Plaintiffs'
16 Exhibit 3 for us?
17 A Exhibit 3 is an enlarged plan of unit one,
18 which is the H. H. Gregg building.
19 THE COURT: Okay. Mr. Kamvosoulis, do you
20 have any objection to the admission of Plaintiffs' Exhibits
21 2 and 3? Mr. Kamvosoulis?
22 MR. KAMVOSOULIS: Yes, Judge.
23 THE COURT: Do you have any objection to the
24 admission of Plaintiffs' Exhibits 2 and 3?
25 MR. KAMVOSOULIS: No objection, Judge.
20
•
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1 THE COURT: No objection. All right. And
2 Mr. Haar?
3 MR. HAAR: No objection, Your Honor.
4 THE COURT: All right. Plaintiffs' Exhibits
5 2 and 3 are admitted.
6 (Plaintiffs' Exhibits 2 and 3 were admitted
7 into evidence.)
8 BY MR. BRADSHAW:
9 Q All right. Now, Mr. Schwartz, let's go back
10 to Exhibit 2. I just ask that you again explain what this
11 depicts, and why it is significant in the context of these
12 proceedings.
13 A Well, this exhibit is an exhibit to -- the
14 base plan that is all shown in black is an exhibit of the
15 overall shopping center that is attached to the Condominium
16 Declaration, and the purpose of this exhibit was to overlay
17 in color. The green shows the expansion areas for units 1,
18 2, 3, and 4, which were negotiated and paid for and included
19 the part of the land development plan as permitted expansion
20 areas in the Condominium Declaration. The areas that are
21 shown in red are the unapproved building expansion and
22 unapproved site indications that H. H. Gregg did to the
23 properties.
24 Q Okay. And now if you turn your attention to
25 Exhibit 3, can you first explain again what this depicts?
21
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1 A Okay. This exhibit again is a -- is the
2 exhibit for unit one that is attached to the Condominium
3 Declaration. In green -- and this is an enlargement of the
4 previous exhibit just for unit one. What is shown in green
5 is the future expansion area that was negotiated and
6 provided for in the land development plans when the center
7 was originally approved.
8 What is shown in red are the site
9 improvements that were unapproved that H. H. Gregg took upon
10 themselves to make. For example, you can see they added a
11 new 3 bay loading dock, which goes outside of the permitted
12 expansion area. Two of the bays you see go outside. So
13 they are trespassing and encroaching on land that is common
14 area. This is land that is owned by all the unit owners, to
15 which H. H. Gregg or ARC has no rights to.
16 In addition to that, they created a
17 compressed 3 bay loading dock from a single depressed
18 loading dock. What that necessitated them doing or what you
19 see in blue are the site improvements that were made. They
20 removed curbing and sidewalk, and then to the left of the
21 loading dock they put a very large retaining wall to support
22 that depressed loading dock.
23 To the left of that you can see that they
24 changed the driver aisles to the bay, and what is very
25 significant there is, if you look at what' s colored in blue,
22
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1 they removed ten parking spaces from the site for their own
2 specific use. Those ten spaces are, again, common area.
3 They are owned by all of the unit owners. This is not
4 spaces that were designated for the exclusive use of the
5 unit one owner or H. H. Gregg. They basically appropriated
6 these spaces themselves.
7 The significance to that is that there are a
8 limited amount of parking spaces on the whole site, and the
9 other units, which do have expansion areas, have to meet
10 Township Code. So if those units should ever expand in the
11 future, they could be short parking because every spot on
12 the site counts for expansion area per Township Land
13 Development Ordinances.
14 So to simply say that because of the
15 proximity of these spaces to my unit, I am now going to
16 appropriate them and convert them to my exclusive use, is
17 illegal and a violation of the Condominium Declaration. In
18 addition to that, there are other areas outlined in red and
19 in blue.
20 In blue these again are site improvements
21 that H. H. Gregg made without approval. They removed paved
22 areas in the parking area. They removed sidewalk on the
23 front of the building. The reason they did that was to
24 convert those paved areas into grass areas so that they
25 could meet the Township Codes pervious and pervious ratio,
23
~ ~
1 and by doing so they will avoid going through another round
2 of approvals regarding the overall site.
3 THE COURT: Now, with respect to the ten
4 parking spaces, what physically was done to remove them?
5 THE WITNESS: They excavated all the paved
6 areas. They physically removed them, and now there's --
7 they are gone from the site. They have completely taken
8 them out.
9 THE COURT: And what is in their place?
10 THE WITNESS: Well, in their place now is --
11 outlined in red is a drive aisle, and then for the balance,
12 which is about half those spaces, the other half of the
13 space I believe they converted to a grass area. Again, to
14 meet the pervious and pervious township land ordinances.
15 THE COURT: Do you have photographs of this?
16 MR. BRADSHAW: Not specifically that.
17 THE COURT: Mr. Haar.
18 MR. HAAR: We do, Your Honor, and we intended
19 to introduce them through Mr. Vetzner.
20 THE COURT: Okay.
21 (Plaintiffs' Exhibit No. 4 was marked for
22 identification.)
23 BY MR. BRADSHAW:
24 Q Sir, I have handed you what we have marked
25 Plaintiffs' Exhibit 4. Can you identify that for us?
24
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1 A Yes. This is a photograph of the Hampden
2 Township Building Permit that was posted in the H. H. Gregg
3 window.
4 Q And can you see the date upon which that
5 permit was issued, sir?
6 A The date I read here is 10/21/09.
7 Q And, sir, you are familiar with the complaint
8 that was filed in this matter?
9 A Yes.
10 Q I ask you to take a look at Exhibit B to the
11 Complaint. It is an e-mail that we had some discussion
12 about. Can you identify the date of that e-mail, and just
13 briefly describe the purpose of that e-mail?
14 A This was an e-mail dated November 3rd, 2009.
15 This was from me to the principles at ARC Properties, Bob
16 Ambrose -- Robert Ambrose, Gil Rivera, Brandon Kline, who is
17 -- who I understood was H. H. Gregg's architects, Jeff
18 Staub, who was the engineer, Robert DiVita, and Ron Lucas.
19 Q And is there bolded text in that e-mail?
20 A Yes.
21 Q And what specifically does the bolded text
22 inform the recipients of?
23 A It says no exterior expansion work on unit
24 one may be done until such time as the condominium documents
25 have been amended, and all of the requirements of the
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condominium documents have been met. Any expansion work
that is done prior to this amendment being fully executed is
in violation of the underlying agreements and must be
stopped immediately.
Q Now, we have a building permit dated October
24th, 2009, per Plaintiffs' 4?
A Right.
MR. HAAR: I object. It is the 21st. I
believe that was his testimony, and I believe that is what
the exhibit reflects.
THE COURT: Mr. Bradshaw.
BY MR. BRADSHAW:
Q Did I my misspeak, sir?
A This looks like the 21st.
Q Forgive me.
A You know what, there's a line and it's a
little bit hard to read, but it could be the 24th, but I
can't tell, but it's either the 21st or the 24th.
Q All right. The e-mail that you just made
reference to that's Exhibit B to the complaint is November
3rd?
A Correct.
Q So somewhere within 2 weeks of the issuance
of the building permit, the e-mail that you just described,
Exhibit B to the Complaint went out?
26
1 A That's correct.
2 Q And somewhere in the interval between when
3 the building permit was issued by the Township, and when the
4 November 3rd e-mail went out, you learned somehow that there
5 was actually construction activity occurring?
6 A That's correct. We were stunned frankly.
7 We got a call from one of the other tenants that managed the
8 center because -- you know, asking us what work was going on
9 behind the former Circuit City building, and we were waiting
10 for an amended Condominium Declaration from ARC's attorney,
11 and we were just in disbelief that they actually started
12 construction without having amended the agreements.
13 MR. BRADSHAW: I move for the admission of
14 Plaintiffs' Exhibit 4.
15 THE COURT: Mr. Haar.
16 MR. HAAR: No objection, Your Honor.
17 THE COURT: Mr. Kamvosoulis, do you have any
18 objection to the admission of Plaintiffs' Exhibit 4, which
19 is a photograph of the building permit?
20 MR. KAMVOSOULIS: No, Judge.
21 THE COURT: All right. Plaintiffs' Exhibit 4
22 is admitted.
23 (Plaintiffs' Exhibit No. 4 was admitted into
24 evidence.)
25 MR. BRADSHAW: The Plaintiff rests.
27
1 THE COURT: Okay. Well, is there any further
2 examination of this witness, Mr. Haar?
3 MR. HAAR: Just briefly, Your Honor.
4 THE COURT: All right. Well, first I guess I
5 should give Mr. Kamvosoulis a chance. Mr. Kamvosoulis, do
6 you have any questions of Mr. Schwartz?
7 MR. KAMVOSOULIS: I'm going to defer any
8 examination to the examination being made by counsel for
9 H. H. Gregg. In other words, no.
10 THE COURT: Okay. Mr. Haar.
11 RECROSS EXAMINATION
12 BY MR. HAAR:
13 Q Now, Mr. Schwartz, you have testified at
14 length that you have an objection that there has not been a
15 formal executed amendment to the condominium documents,
16 correct?
17 A Correct.
18 Q And you will agree with me that from the time
19 you became aware of this H. H. Gregg deal to the present,
20 you have not articulated any other objection to H. H.
21 Gregg's activities other than the fact that there hasn't
22 been a formal amendment to the contract, correct?
23 A Not correct. We felt it was inappropriate to
24 continue with finalizing an amendment to the condominium
25 while the unit -- unit one, ARC Properties, and H. H. Gregg
28
1 were in violation of the agreement. They had started
2 construction and actually doing the work, and we didn't want
3 to be in any way, shape or form in a position to be asking
4 unit owners to sign an amendment when the work was already
5 done. I mean that would have been -- made us look like
6 total derogation of our duties.
7 The unit owners -- as a unit owner, and all
8 the unit owners, they weren't going to rubber stamp a
9 document. Everybody was entitled to get a full set of
10 engineered plans. we never got a set of engineered plans.
11 The expansion that was built was in clear violation of the
12 building spec that all -- any buildings had to be covered
13 with split face blocks so that the whole center looked like
14 an architectural whole.
15 And we felt that it was totally inappropriate
16 after we sent the notice to stop construction, Bob DiVita,
17 the condominium counsel, sent a cease and desist order, ARC
18 Properties, the unit owner, sent a notice to H. H. Gregg to
19 stop construction, and we filed a lawsuit and copied H. H.
20 Gregg's counsel to stop, and basically we feel that H. H.
21 Gregg thumbed their nose at us, at the unit owner, and
22 frankly at this Court.
23 Once they knew that we filed an injunction to
24 stop work, they totally completed the work. We didn't file
25 a lawsuit right away because we thought that maybe their
29
1 construction department with H. H. Gregg got out of sync
2 with the real estate people, and we wanted to give them the
3 benefit of the doubt that -- that they didn't know about
4 getting these papers amended, and then they just -- and
5 after we sent all these notices and filed the lawsuit and
6 they continued to build, we were just absolutely -- found
7 this absolutely incredulous. I have never seen a grosser
8 violation of an underlying agreement in a shopping center in
9 my almost 30 years in the business.
10 Q So is it your testimony then, Mr. Schwartz,
11 that the only way to resolve this is to order H. H. Gregg to
12 tare down the addition, put the property -- the physical
13 property back to the way it was, get a signed agreement, and
14 then build it back exactly the way it sits today?
15 A Well, unfortunately H. H. Gregg created this
16 mess. You know, what you're saying is, is that, you know, I
17 think H. H. Gregg -- they made a business decision. They
18 made a business decision that they had to have this store
19 opened for an April 1st opening, they were trying to time it
20 with their other store over on the East Shore, and they made
21 a business decision that they were going to go build this on
22 their very aggressive schedule irrespective of what
23 anybody's rights were. And I believe that they have created
24 an incredible mess here.
25 I don't know what it is going to take to
30
1 settle it at this point, but I believe that ARC Properties,
2 the owner, they didn't show at the last hearing. They are
3 only here by phone today, have basically washed their hands
4 of the whole mess, and I think that H. H. Gregg put the
5 facts on the ground.
6 They put themselves in this position. They
7 built these improvements, making it a calculated business
8 decision that no judge is going to order them to go rip down
9 improvements that they made. That is their risk. They took
10 a calculated business risk.
11 So the answer to your question is, yes, I
12 believe they should be ordered to restore the property, and,
13 two, reimburse us for the huge amount of legal fees and
14 engineering costs we have incurred to have to enforce the
15 rules of the Condominium Declaration.
16 Q Now, Mr. Schwartz, I believe you testified
17 earlier that no permit was issued regarding the property.
18 I believe -- did you mean to say that no written amendment
19 to the condominium document has been issued?
20 MR. KAMVOSOULIS: Excuse me, Judge. Before a
21 response is given to that question, we were unable to hear
22 the last minute or so of testimony. Not that I'm asking for
23 it to be repeated, but if counsel could just re-ask his
24 question.
25 THE COURT: Well, I'll ask the stenographer
31
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1 to read it to you, and we will a take a short recess for
2 that purpose.
3 (A recess was taken and the court reporter
4 read back the last question and answer.)
5 (Court Resumed at 11:30 a.m.)
6 AFTER RECESS
7 THE COURT: Please be seated. We will let
8 the record indicate that the Court is again in session.
9 Mr. Haar.
10 MR. HAAR: Thank you, Your Honor.
11 RECROSS EXAMINATION (CONTINUED)
12 BY MR. HAAR:
13 Q Mr. Schwartz, I believe where we left off --
14 I believe you testified something along the lines of there
15 was no -- there was no building permit or there was no
16 amendment to the contract. Did you mean to state by your
17 testimony that there was never a building permit issued for
18 the expansion of this building?
19 A No, I didn't -- if I said that, that was
20 incorrect. Exhibit 4 shows a picture of the building permit
21 that was obtained from Hampden Township.
22 Q You would agree with me that you have no
23 evidence to suggest that H. H. Gregg has been in violation
24 of any township ordinance or any building permit issued by
25 Hampden Township, correct?
32
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1 A That's correct.
2 Q Now --
3 THE COURT: I may have misunderstood. I
4 thought you did say that the -- that what was built was not
5 consistent with -- I think you used the word specs, and I
6 thought maybe you meant the specs in the permit, but that is
7 not what you are saying?
8 THE WITNESS: Well, we never saw the plans
9 that were approved by the Township. We never got copied.
10 We were supposed to get them, and never got them. What this
11 shows are the improvements that H. H. Gregg made to the
12 common areas that were inconsistent with what they were
13 allowed to under the Condominium Declaration.
14 THE COURT: Okay. But you are not saying
15 they were inconsistent with the permit?
16 THE WITNESS: From the town?
17 THE COURT: Yes.
18 THE WITNESS: I would have no knowledge of
19 that.
20 THE COURT: Okay.
21 BY MR. HAAR:
22 Q Mr. Schwartz, just so I am clear on this
23 point, would you please refer to H. H. Gregg 9?
24 A Okay.
25 Q You identified this earlier as an a-mail that
33
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1 you received and it had attached to it schematic drawings of
2 the property, correct?
3 A Correct.
4 Q And you have no basis to testify today that
5 the building, as it stands now, doesn't conform with these
6 specifications, correct?
7 A Well, this is a very rough sketch, and it is
8 far short of a complete set of engineering plans which we
9 were supposed to receive and didn't receive. So I have -- I
10 can't tell you -- I mean these plans just don't show enough
11 of what was going to be built.
12 Q Well, Mr. Schwartz, if you would please look
13 at the third page of H. H. Gregg 9.
14 A Um-hum.
15 Q And compare that to -- I believe it was H. H.
16 -- excuse me, Plaintiffs' Exhibit 3. Do you have both of
17 those documents in front of you? Plaintiff's --
18 A Yes.
19 Q Okay.. You will agree with me that the
20 drawing attached to H. H. Gregg 9 shows the elimination of
21 parking spots, just like Plaintiff's 3, correct?
22 A That's correct, but -- Exhibit 3 --
23 Q You have answered my question, Mr. Schwartz.
24 A Okay.
25 Q And you will agree with me that the drawings
34
1 in H. H. Gregg 9 show the expansion of a 3 bay loading dock,
2 just like Plaintiffs' 3, correct?
3 A Correct.
4 Q And the drawing in H. H. Gregg 9 shows the
5 elimination of what was a grass plot -- or excuse me, a
6 parking feature in the right rear of the store, correct?
7 A I'm sorry. I don't understand the question.
8 Q Well, that didn't quite come out right. Let
9 me try that again. If you look at H. H. Gregg 9 in the --
10 what's on this drawing, the top right corner of the
11 building, the corner closest to the intersection of Rondel
12 Road and the Carlisle Pike. Are you with me?
13 A Yes.
14 Q That shows certain parking areas being
15 replaced with grass, correct?
16 A It is very hard for me to tell what is really
17 going on here. You know, what we expected to get was a full
18 set of engineered plans, which was required under the
19 declaration. So this sketch to me was really more for
20 informational purposes. We were expecting to get the full
21 set of plans because it's very hard from this small drawing
22 to really figure out what was going on there.
23 For example, it is not clear that the 3 bay
24 loading dock is totally depressed. It is not clear that
25 there is a huge retaining wall built, which was not
35
1 coordinated with our unit two next to it so that the
2 vehicles coming into our unit two could -- would find that
3 retaining wall to be an impediment. So it was no
4 coordination of how the loading docks would be configured
5 here.
6 Q One last question on these exhibits,
7 Mr. Schwartz. If you look at H. H. Gregg 9, that drawing
8 was provided by Dauphin Engineering Company, correct?
9 A Correct. I'm sorry. You're talking --
10 there's two drawings attached here. One is from Gregg's
11 architect.
12 Q The second drawing, the third page of H. H.
13 Gregg 3, was provided by Dauphin Engineering Company,
14 correct?
15 A Correct.
16 Q And Plaintiffs' Exhibit 3 is also provided by
17 Dauphin Engineering, correct?
18 A That's correct.
19 Q They depict the exact same changes to the
20 property, correct?
21 A I'm not sure. I mean it is hard to tell.
22 Q Now, Mr. Schwartz, I believe that you
23 testified on redirect by Mr. Bradshaw that no unit owners
24 signed off on amendment to the condominium agreement,
25 correct?
36
1 A That's correct. That I'm aware of.
2 Q Isn't it true that the reason that nobody has
3 signed off on the Condominium Agreement is because your
4 lawyer, Mr. DiVita, has not circulated a draft amendment --
5 Amended Condominium Agreement even though he's been given a
6 $5,000 retainer and provided with permitted drawings for the
7 addition?
8 A I disagree, he did not have permitted
9 drawings. We never got drawings other than this sketch,
10 which is not what I consider to be permitted drawings. It
11 was inappropriate for him to circulate an amendment while
12 the construction was going on. We all kind of felt like we
13 were being made monkeys out of because you all were asking
14 us to circulate and sign an agreement that was a fait
15 accompli.
16 And frankly, all of the unit owners were
17 entitled to look at a set of engineered plans, look at the
18 impacts, look at the agreement, and make a decision if they
19 wanted to sign it, and if any unit owners wanted to make any
20 changes or any amendments or any additions or -- to the
21 condo docks that affected their units, we never had that
22 opportunity.
23 So it would have been totally inappropriate
24 for Mr. DiVita to be circulating an agreement right after
25 having sent a cease and desist order to stop construction,
37
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1 and we just had -- and H. H. Gregg just basically thumbed
2 their nose at us and kept building. I mean it was absurd.
3 It was -- talk about putting the cart before the horse, it
4 was just totally inappropriate.
5 Q If you would just give me one moment, please.
6 Do you have a copy of the complaint in front of you,
7 Mr. Schwartz?
8 (Mr. Bradshaw handed the witness a copy of
9 the complaint.)
10 BY MR. HAAR:
11 Q Okay. Mr. Schwartz, referring you to your
12 complaint, Exhibit D, it is a two page e-mail, which I
13 believe you identified earlier, and at the bottom of the
14 first page going back to the second page will you agree with
15 me that that is an e-mail from your lawyer, Bob DiVita, to
16 other parties, including Gil Rivera at ARC Properties and
17 others, including yourself?
18 A Yes.
19 Q If you would, please -- and the date of that
20 e-mail is November 19th, 2009, correct?
21 A Correct.
22 Q If you turn to the second page, Mr. DiVita
23 makes the statement, the Condominium Declaration Amendment
24 will be distributed to all unit owners for their review
25 shortly, correct?
38
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1 A Correct.
2 Q And Mr. DiVita doesn't make any statement in
3 there about it is not appropriate that I circulate the draft
4 amendment at this time, correct?
5 A Correct.
6 MR. HAAR: No further questions, Your Honor.
7 THE COURT: Mr. Bradshaw.
g MR. BRADSHAW: Nothing further, Your Honor.
g THE COURT: Mr. Kamvosoulis, do you have any
10 further questions of this witness?
11 MR. KAMVOSOULIS: No, I don't, Your Honor.
12 THE COURT: All right. You may step down.
13 Thank you. And, Mr. Bradshaw, are you resting?
14 MR. BRADSHAW: I am, Your Honor.
15 THE COURT: Okay. Mr. Haar.
16 MR. HAAR: Your Honor, H. H. Gregg calls
17 Lindsay Vetzner, please.
lg Whereupon,
19 LINDSAY VETZNER
20 having been duly sworn, testified as follows:
21 DIRECT EXAMINATION
22 BY MR. HAAR:
23 Q Sir, will you please state your name for the
24 Court?
25 A Lindsay Vetzner.
39
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1 Q And are you currently employed --
2 THE COURT: Could you spell your last name,
3 please?
4 THE WITNESS: V-e-t-z-n-e-r.
5 THE COURT: Thank you.
6 BY MR. HAAR:
~ Q Are you currently employed, Mr. Vetzner?
g A Yes, I am.
g Q By whom?
10 A H. H. Gregg.
11 Q What's your position with H. H. Gregg?
12 A Real Estate Manager.
13 Q And what do you do as a Real Estate Manager
14 for H. H. Gr egg?
15 A My job is site selection for stores, deal
16 negotiations and lease negotiations, with the intent of
17 opening new stores.
lg Q Were you involved with H. H. Gregg's decision
19 to lease the property at Hampden Commons?
20 A I was. My territory is Pennsylvania and the
21 mid-Atlantic states. So yes.
22 THE COURT: What is it that H. H. Gregg does?
23 THE WITNESS: We are a retailer based out of
24 Indianapolis, and we sell appliances and electronics.
25 BY MR. HAAR:
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1 Q Why was H. H. Gregg looking at this specific
2 old Circuit City store in Mechanicsburg?
3 A For one, we did -- we had intentions of
4 opening up in the Harrisburg market. So we definitely did
5 site tours of the market, and the Circuit City location, for
6 one, is a good real estate decision for us. We like the
7 size of the space, and we like the co-tenancy, being that
8 there was some other national tenants. So it's right on the
9 Carlisle Pike, which is a very regional market.
10 Q Was your decision to lease this store in
11 Mechanicsburg a part of a bigger plan for the area?
12 A It was. We had -- in the Harrisburg market,
13 we have four stores under construction currently. We have
14 the -- what I call the Mechanicsburg store, the store in
15 question, a store in East Harrisburg, one in York, and one
16 in Lancaster. And the Mechanicsburg store was another --
17 more specifically is what we could consider an oversized
18 store. It is about 39,000 square feet, where the other
19 Circuit Cities are about 30,000 square feet, and what we
20 intended to do with this store in particular was not only
21 use it as a retail space, but to also use it as a regional
22 -- small regional distribution center for the market, which
23 included those four stores.
24 Q And --
25 THE COURT: Now, you said it was larger than
41
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1 the other Circuit City stores. Did you mean H. H. Gregg
2 stores?
3 THE WITNESS: I'm sorry. The other locations
4 were all former Circuit City stores.
5 THE COURT: Oh, okay.
6 THE WITNESS: So...
7 BY MR. HAAR:
g Q Am I understanding you correctly,
9 Mr. Vetzner, to say that you usually have store that is
10 about 30,000 square feet, and in this particular instance
11 you have roughly an extra 9,000?
12 A Correct.
13 Q Does H. H. Gregg have a specific plan for
14 that space in the Mechanicsburg store?
15 A The additional 9,000 square feet we intended
16 to use for d istribution -- more warehouse space to act as a
17 distribution center for the market, and because we were
18 going to use this as a small distribution store, that was
19 the -- that is why we needed the additional docks.
20 Q Are you familiar with a term called cross
21 docking?
22 A Yes.
23 Q What's that term mean?
24 A Again, essentially this store would be
25 utilized as a cross dock, and just as an example, a customer
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1 could go into our store in York, Pennsylvania, buy or
2 purchase a refrigerator and want that refrigerator that day
3 or the next day. So we would actually take that
4 refrigerator out of stock of the Mechanicsburg store, and
5 deliver it to their home in York.
6 Q Can you open the Mechanicsburg store without
7 that loading dock?
8 A No.
9 Q Can you open the other three stores in the
10 region without that loading dock in Mechanicsburg?
11 A No.
12 Q Mr. Vetzner, did you get a building permit
13 for the Mechanicsburg property?
14 A We did.
15 Q Has H. H. Gregg in all times been in
16 compliance with that building permit?
17 A Yes, we have.
18 Q Now, did you need to submit plans as part of
19 obtaining that building permit?
20 A We did. We submitted the plans to the
21 Township to obtain that building permit.
22 Q Did you provide copies of those plans to
23 Mr. Schwartz or the entities that he is affiliated with?
24 A We did -- we did distribute plans to all of
25 the tenants and tenant owners prior to obtaining the
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1 building permit, and the intent -- we were aware of the
2 Condominium Declaration. We weren't aware that there was an
3 amendment required, and with the help of ARC Properties, the
4 unit owner, they did distribute the plans to all of the
5 tenants and the tenant unit owners in an attempt to do their
6 due diligence to get the approvals and notify all of the
7 parties of our plans to expand the dock.
8 Q Now, Mr. --
9 THE COURT: Did you have a signed lease at
10 that point?
11 THE WITNESS: We did, yes.
12 THE COURT: With ARC?
13 THE WITNESS: With ARC Properties. I
14 believe the lease was signed in August.
15 THE COURT: And is ARC an owner of that unit?
16 THE WITNESS: I believe ARC Properties is --
17 they are the owner of the property. I believe they are a
18 joint venture partner with a Washington Mutual Trust, I
19 believe, and I believe that's the -- the Bond-Circuit --
20 they formed that corporation. So ARC Properties is the
21 leasing agent of that partnership. So I dealt directly with
22 ARC.
23 THE COURT: Okay.
24 MR. HAAR: Your Honor, perhaps -- I would
25 defer to Mr. Kamvosoulis as to -- perhaps he could represent
44
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1 what the relationship is between Bond-Circuit 9 and ARC
2 Properties.
3 THE COURT: Well, I think we need a witness
4 to say what it is. Unless counsel are able to stipulate to
5 it. Go ahead.
6 BY MR. HAAR:
7 Q Let me see if I can clear up at least some of
8 those points with Mr. Vetzner. Mr. Vetzner, who has H. H.
9 Gregg been dealing with as your landlord of the property?
10 A ARC Properties.
11 Q And you heard Mr. Schwartz testify earlier
12 that he got some sketches of what you were going to do at
13 the property, but never any definitive plans. Is that
14 correct?
15 A We had submitted our plans to, like I said,
16 all of the tenant owners and unit owners. What he received
17 was a sheet or two of the larger set of plans.
18 Q Did he ever come back to you and say, hey, I
19 need more?
20 A No.
21 Q Did H. H. Gregg believe that they had
22 obtained approval f or this expansion from all tenants and
23 owners?
24 A Yes.
25 Q Now, Mr. Vetzner, Mr. Schwartz testified
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1 about a November 3rd e-mail that he sent out regarding this
2 property. Do you remember his testimony on that point?
3 A Yes.
4 Q Did you have any conversations with
5 Mr. Schwartz after that e-mail?
6 A I did.
7 Q And what was the nature of those
8 conversations?
9 A I had spoke to Mr. Schwartz on November 19th,
10 and I had called him. We had received the e-mail from
11 Mr. Schwartz on November 3rd. We had sent the check to --
12 the $5,000 retainer check to Bob DiVita around that time
13 requesting that the amendments be drafted and circulated due
14 to the approvals.
15 By November 19th, after Justin Leach, my
16 attorney, had made several inquiries to Mr. DiVita about the
17 nature of the amendment, would it be prepared and ready for
18 distribution, I called David Schwartz, Mr. Schwartz,
19 specifically to talk about the status of the amendment and
20 inquire about its whereabouts.
21 Q Did Mr. Schwartz tell you anything about the
22 amendment?
23 A I spoke specifically to Mr. Schwartz about
24 the amendment. He did say that it was a top priority of
25 his, and it was on his desk and on his quote, unquote, to do
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1 list, and he was working diligently through that amendment.
2 Q Did he ever tell you that an amendment would
3 be forthcoming?
4 A I fully anticipated an amendment to be
5 forthcoming s hortly after that conversation, absolutely. I
6 was aware of -- he was -- he did explain to me about his
7 relationship with the -- as the President of the Condominium
8 Association a nd as the owner, and how he did wear two hats,
9 and how he -- but he was working towards getting that
10 amendment out .
11 Q And as you sit here today, have you ever been
12 provided with a draft amendment to execute?
13 A No, I have not.
14 Q As part of your discussions with Mr. Schwartz
15 about the dif ferent hats that he wears, did he specifically
16 discuss with you his role as the head, if you will, of the
17 owner of the Staples building?
18 A He did.
19 Q And what was that discussion on November
20 19th?
21 A I have heard prior to our discussion on
22 November 19th that there was a desire to expand the Staples
23 building, and I was aware that he wanted to expand it in the
24 space between the two buildings, and I had asked him on
25 November 19th if he had intended in including the -- the
47
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1 landowners in the amendment for the expansion of the Circuit
2 City as well as the expansion of our plot out back, and he
3 had said he was, and we had -- we had agreed that he was
4 going to ess entially piggyback the expansion documents of
5 the Staples onto our amendment.
6 THE COURT: Which unit was Staples?
7 THE WITNESS: I believe Staples was two.
8 THE COURT: Okay. Thank you.
9 BY MR. HAAR:
10 Q And Staples is the unit immediately next to
11 H. H. Gregg, correct?
12 A Staples is adjacent to us, correct.
13 Q But there is something in between your
14 building and the Staples building?
15 A There is a drive aisle in between our
16 building and the Staples building, and that drive aisle was
17 needed for C ircuit City because they did their car
18 installation s in the back. So the customer would drive
19 around back for the car installations. And the fact that we
20 do not do ca r installations, we had no issues with that
21 space being filled in with the building. And I made that
22 clear to ARC Properties, and I believe I made that clear to
23 Mr. Schwartz when I had talked to him on that day.
24 Q So was it your understanding that this
25 amendment to the condo document, as it related to the H. H.
48
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1 Gregg building, was now getting tied up because of a
2 potential amendment to Mr. ~chwartz's store?
3 A It was completely my understanding that the
4 amendment was being worked on by Mr. Schwartz and the
5 condominium attorney, and they were working on adding the
6 Staples language into our amendment. I was under the
7 impression the amendment was close to being drafted, if not
8 drafted, and we did -- in my discussions with Mr. Schwartz,
9 he was very supportive of H. H. Gregg being a tenant in the
10 center.
11 I think everyone agreed that having a vacant
12 39,000 square feet at the road was not good for any of the
13 other tenants or the unit owners, and again just very
14 supportive. I came away from that meeting thinking we would
15 be getting that amendment very shortly.
16 Q Let's switch gears quickly for a moment.
17 Other than Mr. Schwartz, have you received any objection
18 from any other party to the expansion to the. H. H. Gregg
19 building?
20 A No objection.
21 Q Now, after you had this phone conversation
22 with Mr. Schwartz on November 19th, what's the next
23 communication that you received regarding the building at
24 H. H. Gregg?
25 A That following week.
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1 Q And what was that communication?
2 A One, I was following up on the draft of the
3 amendment, and there was -- after I got off the phone with
4 Mr. Schwartz on the 19th, later that evening there was the
5 e-mail that I believe has been recorded from his attorney.
6 I called him specifically to talk to him about that e-mail.
7 Q And what was your conversation with
8 Mr. Schwartz about that e-mail?
9 A I told him that I was surprised by the nature
10 of that e-mail, specifically since we had just spoken a few
11 hours prior to that e-mail being sent, and I felt there was
12 an understanding between both parties that the amendment was
13 being drafted. We both, I think, agreed that it was poor
14 timing when the amendment -- or I'm sorry when that e-mail
15 was sent out by Mr. DiVita.
16 Q Did you have any further discussions with
17 Mr. Schwartz in that conversation about the Staples proposed
18 expansion?
19 A We did. I did speak to Mr. Schwartz. I told
20 him that my fear was -- for one, we did -- you know, we
21 acknowledged that we were under construction. We
22 acknowledged that we were trying to beat the winter months
23 because there is quite a bit of construction to do in the
24 back. We acknowledged of our April opening. So that was
25 discussed. And I had asked him if -- I made a claim that my
50
1 amendment was being held up due to the Staples language to
2 be included in our amendment. And Mr. Schwartz was
3 defensive at the time and explained to me that that was not
4 the case.
5 Q But he still didn't provide you with a
6 proposed amendment to the condo document?
7 A I still have not seen an amendment, no.
g Q Now, after that phone conversation with
9 Mr. Schwartz, did you ever meet with him in person?
10 A After the phone conversation, it was the week
11 of Thanksgiving, we did meet in person in New York at a
12 trade show. Mr. Schwartz and myself are both part of ICSC,
13 and there was a trade show in New York City. I had
14 scheduled a meeting with Mr. Schwartz. I believe the day
15 was December 3rd or December 4th. I met him with my boss,
16 who is the Vice President of real estate, Bruce Dixon, and
17 we discussed the status of the amendment, and at that time
18 Mr. Schwartz had advised us of the suit -- of the lawsuit.
19 That was the first time I ever heard of the suit.
20 THE COURT: When was that again?
21 THE WITNESS: I believe it was -- it was the
22 lst of December, the first week of December.
23 THE COURT: Okay.
24 BY MR. HAAR:
25 Q Mr. Vetzner, I am going to hand you a
51
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1 document -- we'll call this H. H. Gregg 14.
2 (H.H. Gregg Exhibit No. 14 was marked for
3 identification.)
4 BY MR. HAAR:
5 Q Mr. Vetzner, can you identify for us, please,
6 what is H. H. Gregg 14?
7 A This is a photo of the dock expansion behind
8 our store. There are the three docks. There is the truck
9 well. There is the retainer -- retaining wall.
10 Q There's three pictures in this exhibit,
11 correct?
12 A Oh, I'm sorry. I'm sorry.
13 Q That's all right.
14 A That was the first picture. The second
15 picture is the backside of the expansion, and the third
16 picture is the interior of the -- the interior of the dock,
17 and you could see the -- the area completely built out. So
18 again, this is from the inside.
19 Q Do these three pictures accurately portray
20 the loading dock as it exists today?
21 A It does.
22 MR. HAAR: Your Honor, I would move for the
23 admission of H. H. Gregg Exhibit 14.
24 MR. BRADSHAW: Without objection.
25 THE COURT: And, Mr. Kamvosoulis, do you have
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any objection to the admission of those photographs?
MR. KAMVOSOULIS: No, Judge.
THE COURT: All right. Defendant H. H. Gregg
Exhibit 14 is admitted.
(H. H. Gregg Exhibit No. 14 was admitted into
evidence.)
THE COURT: I am going to have to recess for
lunch. In fact, adjourn in a few moments. Go ahead,
Mr. Haar.
MR. HAAR: I will finish up my questions. Do
I understand Your Honor to say that we are going to be done
for the day or --
THE COURT: Well, I have several other
hearings scheduled this afternoon. If you want to take a
chance and assume that some of those hearings will end early
I'm happy to do that. I know Mr. Bradshaw, I am sure, would
like to get this over with, and I would like to also.
MR. BRADSHAW: As a housekeeping matter, I
believe that my cross examination of Mr. Vetzner probably
would take ten minutes.
THE COURT: Okay. Well, maybe we can finish
this afternoon.
MR. BRADSHAW: Mr. Haar, do you have any idea
how much longer you need?
MR. HAAR: Perhaps another 15 minutes on
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THE COURT: All right. You can step down.
We will adjourn at this -- or recess at this point for lunch
and reconvene at 2:30. And we can hope that the 1:30
hearing at that point will be concluded. And,
Mr. Kamvosoulis, I'm sorry, we will call you back.
Hopefully you will be available at 2:30.
MR. KAMVOSOULIS: 2:30, and is the idea that
we are going to complete the hearing today?
THE COURT: That would be the hope. The only
unknown is that I have a hearing scheduled for 1:30 in a
rather contentious domestic case, and I just can't be sure
whether we will be done by 2:30, but hopefully we will.
MR. KAMVOSOULIS: Okay. Judge, my other
question is after the direct is complete, and the witness is
cross-examined, are there any additional witnesses on behalf
of H. H. Gregg?
THE COURT: Mr. Haar?
MR. HAAR: Mr. Vetzner is our only witness,
Your Honor.
THE COURT: Okay.
MR. KAMVOSOULIS: Okay. So the remainder of
the hearing should comprise of the remainder of the direct
and cross?
THE COURT: Depending on whether Mr. Bradshaw
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1 has any rebuttal testimony.
2 MR. KAMVOSOULIS: Okay. Great. We will look
3 forward to Your Honor's call at 2:30.
4 THE COURT: All right. Thank you.
5 MR. KAMVOSOULIS: All right. Thank you,
6 Judge.
7 THE COURT: Court is in recess.
8 (A lunch recess was taken at 12:01 p.m.)
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AFTER LUNCH RECESS
(Court resumed at 2:58 p.m.)
THE COURT: Please be seated. We will let
the record indicate that the Court has reconvened in the
case of Hampden Commons versus Bond-Circuit. Go ahead.
MR. HAAR: Thank you, Your Honor. I believe
I was direct-examining Mr. Vetzner. If he can retake the
stand.
THE COURT: All right.
(Lindsay Vetzner resumed the stand.)
MR. HAAR: Your Honor, I believe right before
we went out on break you admitted into the record H. H.
Gregg Exhibit 14, and I would like -- which is three
pictures of the property. I would like to hand up a copy of
that exhibit to Your Honor.
THE COURT: All right.
MR. HAAR: If you would like to follow along
as Mr. Vetzner describes it.
THE COURT: Okay.
DIRECT EXAMINATION (CONTINUED)
BY MR. HAAR:
Q Now, Mr. Vetzner, you are looking at H. H.
Gregg Exhibit 14?
A Yes.
Q And would you please describe for us what the
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first page is?
A The first page is a picture of the dock
expansion. You can see where we have the three new docks in
the back area. On the side is the -- the very back end is
the retaining wall, and then you also have the truck well
that leads back that's been dug and dug back into the
existing -- or the docks.
And just for clarification, there was a truck
well there previously, and there was a retaining wall there
previously as well, and the construction of the area was
built in the same design as the existing building. The last
-- the last thing we need to do is paint the building. The
weather's just been too cold for us to complete that.
Q Other than the -- other than painting the
outside of this three bay structure, is all other
construction complete with the loading dock?
A With the loading dock, yes.
Q Now, just so I am clear, before you made this
extension there was a one bay loading dock?
A There was a one bay loading dock with a truck
well. There was the existing light post. It has been
relocated back, you know, maybe five feet or so. Before it
was in a grass area that was there previously.
Q Now, if you will turn to the second picture
in H. H. Gregg 14, would you please describe that for us?
57
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1 A Again, that is the backside of the extended
2 loading dock, again built in the same design as the building
3 itself. Again, the last minute -- the last thing we have to
4 do is paint. You can see the electrical panels from the
5 former Circuit City, and because of the electrical panels
6 and the underground utilities, it made it much more
7 advantageous to build the design the way we had. So the
8 utilities -- and again the underground utilities were one of
9 the elements as to why it was designed in this particular
10 manner.
11 Q Now, if you will look at the very right side
12 of the second picture, there is buildings kind of in behind
13 that.
14 A Correct.
15 Q What is that?
16 A Those are the neighboring buildings. So I
17 believe the two dock bays, you can see in the photo. The
18 white dock bays are the Pet Smart, and I believe the dock --
19 the single darker bay is the Dicks Sporting Goods.
20 Q And if you will please turn to the third
21 picture in H. H. Gregg 14. What is that?
22 A Again, this is a photo from the interior of
23 the dock bay. So it is depicting the three dock bays. It
24 is showing several of the equipment that we installed. And
25 again, the block wall there in the back is all under
58
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1 construction.
2 Q And looking at this third picture, the
3 loading bay on the left, was a loading bay there prior to
4 your expansion?
5 A Yes, there was. That was the former Circuit
6 City loading bay. So previously again there was one dock
7 bay with the truck well, and we essentially extended the
8 building out two dock bays, which I believe is 20 feet or so
9 -- 20, 24 feet.
10 Q You can set that aside. Mr. Vetzner, do you
11 know the approximate cost of the renovations that H. H.
12 Gregg has made to this building?
13 MR. BRADSHAW: Objection, relevance.
14 THE COURT: If I ordered it torn down,
15 wouldn't that be a relevant factor?
16 MR. BRADSHAW: I have case law that indicates
17 that it is not, but we can get to that later.
18 THE COURT: I will permit the question with
19 the understanding that there may be an argument that it is
20 not relevant.
21 THE WITNESS: The contractor we ordered the
22 bids through were $873,000, and I believe the estimated
23 portion of the dock extension itself is between $125,000 and
24 $150,000.
25 BY MR. HAAR:
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Q So if you were forced to tear this building
down and then rebuild it, what would be the approximate cost
to rebuild just the dock?
A The costs to rebuild the dock would be that
$125,000 to $150,000. The actual demolition, I couldn't
estimate at this time.
Q And do you have any estimate as to how much
it would cost to, in-between tearing it down, repair the
building to what it looked like before, repair the parking
lot to what it looked like before, and then turn it back to
what it is right now?
A It would be very far north of that $125,000
to that $150,000 estimate.
Q Now, Mr. Vetzner, do you have an
understanding as to what the annual revenue is out of a
typical H. H. Gregg store?
A The average sales for an H. H. Gregg is 13.5
million dollars.
THE COURT: Per store you mean?
THE WITNESS: Per store, yes, sir.
BY MR. HAAR:
Q So if this loading bay were shut down and
four stores couldn't operate, would the annual revenue be
four times that then?
A Yes.
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1 Q Now, I think I might have -- strike that,
2 please. Mr. Vetzner, is H. H. Gregg going to hire employees
3 to staff this store?
4 A Yes.
5 Q And approximately how many?
6 A Forty to fifty employees per store.
7 Q Is that a mix between part and full-time?
8 A Yes. But the majority is full-time, and it
9 is mostly commissioned sales staff.
10 Q And would that number of employees be the
11 same for this store as the other three that rely on this
12 cross dock?
13 A Approximately, yes.
14 Q So is it correct then about 160 to 200 jobs
15 depend on thi s loading dock?
16 A Yes.
17 Q What is an approximate average salary of the
18 jobs that wil l be born when H. H. Gregg opens its store?
19 A A commissioned salesperson could earn forty
20 to forty-five thousand dollars a year.
21 (H. H. Gregg Exhibit No. 15 was marked for
22 identificatio n.)
23 BY MR. HAAR:
24 Q Mr. Vetnzer, I have handed you what has been
25 marked as H. H. Gregg Exhibit 15, and I will ask if you can
61
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1 identify what these pictures show us.
2 A Yes. The first picture is the store front,
3 newly renovated. The entrance has stayed the same from the
4 former, excuse me, Circuit City. So you can see what
5 construction we had done. We really have not done anymore
6 construction on the rest of the facade. It has remained.
7 We do have the now hiring banner out on the wall because,
8 you know, this was taken this week or last week, and we are
9 in the midst of hiring for the marketplace.
10 Q And the second through fifth pictures, can
11 you just describe very generally what these show us? We'll
12 ask some specific questions later.
13 A Okay. This is the interior build-out of
14 H. H. Gregg's store. Walls have been painted. The drywall
15 obviously has been installed. The new lighting package, we
16 got our interior signs, and we also got our fixtures that
17 have been in place ready for merchandise.
18 MR. HAAR: I would move for the admission of
19 H. H. Gregg Exhibit 15.
20 MR. BRADSHAW: Without objection.
21 THE COURT: And, Mr. Kamvosoulis, do you have
22 any objection?
23 MR. KAMVOSOULIS: No objection.
24 THE COURT: All right. Defendant's H. H.
25 Gregg Exhibit 15 is admitted.
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1 (H. H. Gregg Exhibit No. 15 was admitted into
2 evidence.)
3 MR. HAAR: Your Honor, now that this exhibit
4 is admitted, I would like to hand up a courtesy copy so you
5 can follow along if you would like.
6 THE COURT: All right.
7 BY MR. HAAR:
g Q Mr. Vetzner, let's jump back to the first
9 page of H. H. Gregg 15.
10 A Okay.
11 Q And describe for the Judge what it is we are
12 looking at here.
13 A Again, this is our standard -- this is the
14 store front of the store. This is our entrance. This is
15 taken from the parking lot adjacent to our space. This is
16 where the customer would park. You can see the handicap
17 parking spaces, and we had previously -- with the old
18 Circuit City Store front, we removed the Circuit City store
19 front and installed our typical store front where we got the
20 gold columns and the gold canopy, and then we installed our
21 H. H. Gregg sign package.
22 Q And if you look at the very left side of this
23 picture there is a separate building with a red top?
24 A That will be the Staples facility, and there
25 is a drive aisle between the H. H. Gregg store and the
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1 Staples.
2 Q And that is the Staples that Mr. Schwartz is
3 looking to expand, correct?
4 A Correct.
5 Q Now, if you would, please, turn to the second
6 picture out of this pack and describe that for the Judge,
7 please.
8 A This is a shot of the inside of the store.
9 Again, drywall has been installed, painted, the fixtures
10 have been plac ed on the floor. The new the has been
11 installed, the lighting package, the sign package, and the
12 store is essen tially ready for merchandise, which we intend
13 to merchandise the store April 5th.
14 Q Let's jump to the third picture in H. H.
15 Gregg 15. Is there anything in that picture different than
16 what you have described already?
17 A No. It is just another vantage point shot.
18 It is showing more of the interior of the store. I believe
19 that the center console area is where we will have the
20 registers and again more merchandise.
21 Q And the same with the remaining pictures?
22 A Yes.
23 Q Now, where does H. H. Gregg stand on
24 obtaining certificate of occupancy?
25 A We expect to have the certificate of
64
1 occupancy in the next week or so. We were just awaiting
2 some electrical permits, but the store, through the
3 construction process, has received standard inspections.
4 we passed all of the inspections. It has been built to the
5 specs and what was permitted. So we would intend to have
6 the -- again, the certificate of occupancy within the next
7 week or so.
g Q And I think you may have already indicated
9 this, but when do you intend to bring merchandise to the
10 store?
it A We intend to bring merchandise into the store
12 April 5th. We intend to, what we call, soft open the store.
13 So essentially open the doors to the public on April 10th,
14 and we plan on grand opening this store on April 22nd, but
15 it will be open to the public on the 10th of April.
16 Q Can you do that without these docks in place?
17 A No.
18 Q Can you open the other three H. H. Gregg
19 stores in the Harrisburg area without this dock in place?
20 A No.
21 Q Now, Mr. Vetzner, I would ask you if you
22 would, please, turn to Plaintiff's Exhibit 2, which I
23 believe is the longer document that you have up there.
24 A Okay.
25 Q And you will agree with me that this shows a
65
•
1 loss of certain parking spaces because of the H. H. Gregg
2 expansion, correct?
3 A It does.
4 Q Did H. H. Gregg address that concern in
5 obtaining its building permit?
6 A Yes, we did. We did present a set of plans
7 to the Township for the permits. We did have to provide
8 parking calculations, and we did do all of that. One thing
9 I would like to note is, as I mentioned before, Circuit City
10 did have the car stereo installation in the back, and some
11 of those parking spaces were removed because they were
12 specific to car stereo installation, which we do not
13 perform. And actually because of -- in the calculations to
14 the Township, because we actually have less employees per
15 shift than a Circuit City would per shift, we are actually
16 alotted more parking spaces because we have less employees
17 per shift.
18 Q Do you recall what the number of required
19 spaces was for -- to be dedicated to the H. H. Gregg store?
20 A To dedicate to the H. H. Gregg stare, the
21 required parking spaces were 146, and today there's 199
22 spots dedicated to H. H. Gregg.
23 Q So there is more than 50 spots available to
24 H. H. Gregg above what is required by the local code?
25 A Per code, yes.
66
•
1 Q Okay. And if you look at the shopping center
2 overall, all five stores, do you have -- do you recall how
3 many parking spots are required by code versus how many
4 exist after your change to the parking arrangement?
5 A There are, I believe, thirteen hundred and --
6 well, there's 1302 -- I'm sorry, 1,200, I believe, parking
7 spaces required per code, and I believe there are 1,300
8 parking spaces there today. So there is about 100 parking
9 spaces difference.
10 Q So in other words, the shopping center has a
11 hundred more than what it needs to meet code?
12 A Correct.
13 Q Now, if you also keep looking at Plaintiffs'
14 Exhibit 2, do these diagrams show the loading areas for the
15 Staples store and the Pet Smart store and the Dicks store?
16 A They do.
17 Q And would you please show to His Honor where
18 on that map the loading facilities are for Staples, which is
19 Unit 2, and Pet Smart, which is Unit Number 3?
20 A This would be the --
21 THE COURT: You will have to speak into the
22 microphone, I'm afraid, for the stenographer.
23 THE WITNESS: I'm sorry. The loading dock
24 for the Staples would be right there, and then for the Pet
25 Smart, which is next door, would be right next door where it
67
• •
1 has kind of got the -- it's kind of blocked out a big
2 rectangle.
3 THE COURT: Okay. These are rectangles that
4 are sort of on diagonals?
5 THE WITNESS: Yes, sir, and that would be the
6 indications of a truck well, which are also depressed to
7 their truck dock, very similar to what we have, and what was
8 currently there with the Circuit City. So I don't think
9 that truck deliveries would be affected by the current --
10 the current tenants.
11 BY MR. HAAR:
12 Q And that was my next question to you. With
13 the three bay expansion for H. H. Gregg, does that interfere
14 at all with the deliveries going to Staples?
15 A It does not. And we did send, again,
16 preliminary plans to all of the tenants prior to the permit
17 concerning construction, and there were no objections from
18 any of the tenants. So I believe their operations would be
19 in tact.
20 Q Mr. Vetzner, did H. H. Gregg send a $5,000
21 retainer to Bob DiVita to amend the condominium documents?
22 A Yes.
23 Q And since that was done in early November,
24 have any amendments been provided to H. H. Gregg from
25 Mr. DiVita?
68
•
1 A No.
2 MR. HAAR: No further questions, Your Honor.
3 THE COURT: Okay. Mr. Bradshaw.
4 CROSS EXAMINATION
5 BY MR. BRADSHAW:
6 Q Mr. Vetzner, I just want to confirm several
7 items that I think may have already been touched on. If I
8 understood your earlier testimony, you said that you are and
9 have been familiar with the Declaration of Condominium --
10 THE COURT: Your voice is just too low,
11 Mr. Bradshaw.
12 MR. BRADSHAW: Is this better?
13 THE COURT: I'm not sure that microphone is
14 even on. I would just speak up a little bit.
15 BY MR. BRADSHAW:
16 Q Sir, if I understood you earlier, you
17 testified that you are and have been familiar with the
18 Declaration of Condominium that governs this shopping
19 center. Is that accurate?
20 A Yes.
21 Q All right. Now, it's true, is it not, sir,
22 that you are not in a position to furnish to this Court
23 today with any documents reflecting formal authorization
24 from all unit owners as to the changes that have already
25 been made to the H. H. Gregg store?
69
•
1 A We have submitted the plans to again all
2 parties and tenants and unit owners, and we have received
3 responses from all tenants and unit owners, all with
4 approval, and no one has objected to the expansion of the
5 dock.
6 Q Okay. Let me phrase my question again and be
7 as specific as I can. You are not in a position to tender
8 as exhibits today to this Court formal documentary
9 authorization from every unit holder saying, I have reviewed
10 the plans, and we are fine with this as submitted?
11 A I do not have an executed document with their
12 signature, no.
13 Q So what you are asking the Court to rely on
14 and to accept is your assertion that there were verbal
15 exchanges between you and other unit holders, and your
16 characterization that there were no objections?
17 A Verbal, and also, as I mentioned before, we
18 have received e-mails from all parties, very strong
19 recommendations, very encouraging remarks, and very
20 supportive from all unit owners.
21 THE COURT: Are you including the Staples
22 unit owner?
23 THE WITNESS: Yes.
24 THE COURT: Okay.
25 BY MR. BRADSHAW:
70
• •
1 Q Do you have documentation from Mr. Schwartz,
2 who specifically grants authorization, to the specific plans
3 that you were provided?
4 A I do not have a signature, no.
5 Q Do you believe that Mr. Schwartz, for
6 whatever reason, perhaps as the President of the Condominium
7 Association, has the authority to speak on behalf of all of
8 the unit holders?
g A I think he has the authority to speak on his
10 properties. I do not think he has the authority to speak on
11 all of the owners, no.
12 Q Now, similarly, you are not in a position to
13 furnish the Court with any documentary evidence that any
14 unit holder waived any aspect of the Declaration Condominium
15 in this case, are you?
16 A No, I am not.
17 Q Okay. And we will come back to this in a
18 little while, but there are a number of sections in the
19 Declaration of Condominium that have not been complied with.
20 You agree with that, don't you?
21 A Can you give me some specific examples?
22 Q Sure. Easy example, there is a prohibition
23 against constructing any construction activity during the
24 Christmas retail season. Are you familiar with that?
25 MR. HAAR: I object, Your Honor, that is
71
1 mischaracterizing the agreement.
2 THE COURT: I guess the witness can say I
3 don't agree if that is the case.
4 THE WITNESS: I don't agree.
5 BY MR. BRADSHAW:
6 Q Sir, do you have a copy of the complaint in
7 this matter in front of you?
8 A Yes.
9 Q All right. Attached to that as Exhibit A is
10 the Declaration of the Condominium. I ask you to look at
11 Section 14.02.02 on page 40.
12 A I'm there.
13 Q Okay. Please take a minute and review that,
14 and then I will ask you a question or two.
15 A Okay.
16 Q All right. And let me paraphrase so that we
17 don't torture the court stenographer. But you tell me if
18 you think I'm mischaracterizing this document. It says
19 after the initial construction of the initial units, no
20 construction to the exterior portions of the condominium
21 property other than their, for example, emergency repairs,
22 shall be permitted during the period October 1 through
23 December 31, of any calendar year without the unanimous
24 written consent of the unit owners of units 1, 2, 3, and 4.
25 Do you see that?
72
• •
1 A Yes.
2 Q All right. My reading of that is without the
3 unanimous written consent of at least units 1, 2, 3, and 4,
4 no exterior construction is permitted between October 1st
5 and December 31st. Is that your reading as well?
6 A Yes.
7 Q And, in fact, what we had here was a building
8 permit that was issued in late October, and construction was
9 complete -- substantially complete sometime in December.
10 A Again, we are a free standing building. We
11 did send our plans to all of the other unit owners and
12 tenants. No one has complained during the construction
13 process, and everyone was aware of our desire to open in
14 April, and being developers and retailers, there was no
15 complaints during the construction whatsoever.
16 Q Let me put the question as directly as I can.
17 You agree that the document requires unanimous written
18 authorization, correct?
19 A That's what it says.
20 Q You don't have unanimous written
21 authorization, do you?
22 A No.
23 Q In fact, you never even sought unanimous
24 written authorization for construction during the Christmas
25 retail period, did you?
73
•
1 A No.
2 Q Now, if I understand your planning on -- I
3 think you used the words merchandising the store April 5th?
4 A Yes.
5 Q Okay. And if I understood your testimony,
6 you require access to and utilization of this three bay
7 loading dock not only for this store, but for the York
8 store, the Lancaster store, and the East Shore Harrisburg
9 store?
10 A Yes.
11 Q So just so that I'm clear on your testimony,
12 the ability of H. H. Gregg to open any or all of those four
13 stores requires the ability to use this loading dock?
14 A One of our key -- our business model, one of
15 our key elements is the ability to deliver a product on that
16 same day, and without the use of this, what we call a cross
17 dock, I cannot deliver product in any of those other
18 markets. So a key component of our business model would
19 definitely be affected, and it would affect the opening of
20 our stores.
21 Q All right. And using the numbers that you
22 went through with Mr. Haar, if your annual revenue per store
23 is 13 1/2 million dollars, and we're talking about 4 stores,
24 then arguably the lost revenue to H. H. Gregg could be as
25 high as 53 million dollars a year?
74
1 A Potentially.
2 Q Okay. Now, are you saying that if the Court
3 orders that these loading bays either be removed or that you
4 be prohibited from utilizing the same, those four stores are
5 not going to open?
6 A There can be a potential that they would not
7 open.
g Q Well, let's be serious here. What you mean
9 is they might not be able to open in April?
10 A Correct.
11 Q But you wouldn't let the stores sit idle and
12 incur losses o f 53 million dollars a year, you would go out
13 and find 9,000 square feet of warehouse space someplace
14 else, right?
15 A Most likely, yes.
16 Q Are you familiar with the market for
17 warehouse space in Central Pennsylvania?
18 A Not particularly central, but I am familiar
19 with the real estate market in general.
20 Q Do you have any idea how many million feet of
21 warehouse space there is within several miles of the
22 courthouse we are sitting?
23 A I do not, no.
24 Q Do you have any reason to believe that it
25 would be difficult to find nine or ten thousand square feet
75
~ i
1 of warehouse space somewhere in Central Pennsylvania that
2 would allow you to service those four stores?
3 A I think it would be difficult with the time
4 constraints to get that leased, to get it prepared and
5 shelved for the openings in April, yes.
6 Q Okay. So it is fair to say that maintaining
7 your mid-April openings for these four stores is one of your
8 leading objects as a Property Manager for H. H. Gregg?
9 A Yes.
10 Q And, in fact, it is fair to say that
11 attempting to adhere to that deadline is in large measure
12 why this construction schedule proceeded the way that it
13 did. Isn't that true?
14 A The construction schedule proceeded as it did
15 so we could open in April so we could also get the dock
16 built, and obviously with the weather, the fear of winter
17 so yes.
18 Q Do you know how the property that we are here
19 to discuss at Hampden Commons is zoned?
20 A No.
21 Q Would it surprise you if I told you that it
22 is zoned C-G?
23 A I couldn't say.
24 Q Do you know what zoning classification C-G
25 permits?
76
1 A No.
2 Q Do you know whether C-G zoning classification
3 for Hampden Township permits warehousing and distribution
4 facilities?
5 A No.
6 Q So it is possible that we are faced with the
7 scenario that --
8 MR. HAAR: I'll let him finish the question
9 and then I'll object.
10 MR. BRADSHAW: Well, we have been through the
11 number of employees that could potentially be impacted. We
12 have been through the amount of revenue that could
13 potentially be impacted. You have made a presentation to
14 the Court about how important it is that these loading docks
15 be utilizable by H. H. Gregg.
16 BY MR. BRADSHAW:
17 Q My question is simple. Sitting here today,
18 you don't even know if it is legal to use this warehouse
19 facility as a warehouse and use these loading docks, do you?
20 MR. HAAR: I object to the form of the
21 question. It is quite long. It started off with isn't it
22 possible that, which I believe is speculative and
23 indefinite, and I believe it ended with asking him for a
24 legal conclusion as to whether or not Hampden Township is
25 going to allow them to open this facility. There is only
77
1 one person here who is trying to shut down H. H. Gregg, and
2 that is Mr. Schwartz, not Hampden Township.
3 THE COURT: I will overrule the objection.
4 If you can answer it, you can. If you don't know, you can
5 say I don't know.
6 THE WITNESS: I don't know. I will say that
7 several of the tenants in that center have multiple docks,
8 and I don't think what we are doing is anything other than
9 like a Home Depot would do or a Dicks.
10 BY MR. BRADSHAW:
11 Q Well, let's talk about that. We were talking
12 about a floor area of 39,000 feet in total, correct?
13 A Yes.
14 Q And we are talking about allocating some
15 9,000 square feet of that 39,000 square feet, or roughly 23,
16 24 percent, to warehousing and distribution, correct?
17 A I believe that is close, yes.
18 Q And we're not talking about having goods on
19 site warehoused for the benefit of this store only, but this
20 store and three other stores, right?
21 A Yes.
22 Q Okay. Do you know from your review of the
23 Declaration of Condominium whether warehousing and
24 distribution are listed as prohibited uses of the
25 declaration?
78
1 A No.
2 Q No, you don't know?
3 A No, I do not know.
4 Q Now, you have the complaint in front of you.
5 I would ask you to turn to Exhibit D. Do you have that,
6 sir?
7 A Is it in the --
g Q Yes. It is behind the Declaration of
9 Condominium.
10 MR. HAAR: Do you want me to help him find
11 it?
12 MR. BRADSHAW: Sure.
13 THE WITNESS: Okay.
14 BY MR. BRADSHAW:
15 Q All right. You have seen this e-mail before,
16 correct?
17 A Yes.
18 Q I don't want to waste anybody's time. I want
19 to focus in the middle of the page, which is an e-mail
20 directed from Gil Rivera to you Thursday, November 19th, at
21 5:19 p.m., copies to a number of others, including
22 Mr. Schwartz. Let me just read that, and then you can
23 confirm whether I have read that accurately, if you would.
24 Lindsay, we have been informed by the Condo
25 Association attorney that your contractors have been
79
•
1 performing work in the loading expansion area prior to the
2 amendment being approved and executed by the respective unit
3 owners. Please inform your contractors to immediately stop
4 all work being done in the expansion area until such time --
5 I think you missed the word as -- we have a fully-executed
6 amendment. Please call me with any questions. Thank you,
7 G. R. Now, did I read that accurately?
8 A Yes.
9 Q Mr. Rivera is with ARC Properties?
10 A He's with ARC Properties.
11 Q ARC Properties, as you earlier testified, is
12 the landlord, and perhaps partial property owner, of unit
13 one?
14 A Yes.
15 Q And so ARC Properties and Mr. Rivera were the
16 parties that you were dealing with with respect to your
17 occupancy of this particular unit?
18 A Yes.
19 Q Mr. Rivera tells you to inform your
20 contractors to immediately stop all work until such time as
21 we have a fully-executed amendment, but that is not what
22 happened, is it? H. H. Gregg did not immediately stop all
23 work, did it?
24 A No.
25 Q And, in fact, when it became apparent to
80
1 Mr. Schwartz following the 19th of November that work was
2 continuing despite the forwarding of that notice, a lawsuit
3 was filed in this matter on the 24th of November; is that
4 right?
5 A I don't know the date.
6 Q Now, the e-mail concludes with Mr. Rivera
7 saying call him with any questions, right?
g A Yes.
g Q And then if we look above that, the following
10 morning you sent an e-mail, copies to no ane, to David
11 Schwartz saying -- forwarding the e-mail we just discussed,
12 and it says please give me a call to discuss, correct?
13 A Correct.
14 Q And you have earlier testified about the
15 content of that conversation. We don't need to go back
16 through that. Sir, is it your testimony that based on your
17 conversation with Mr. Schwartz the following day that for
18 some reason you concluded that Mr. DiVita's cease and desist
19 notice could be ignored?
20 A Can you ask the question one more time,
21 please?
22 Q Sure. You had in your inbox on your computer
23 from Mr. DiVita, with copies to a number of other people
24 involved in this, Mr. Rivera and Mr. Schwartz, a number of
25 lawyers, what we have characterized as a cease and desist
81
s ~
1 notice. Mr. Rivera is saying on the basis of Mr. DiVita's
2 cease and desist notice, Lindsay, stop work until there is a
3 fully-executed amendment to the Condominium Documents,
4 right?
5 A Yes.
6 Q Was there something about your conversation
7 with Mr. Schwartz the following day that led you to believe
8 that Mr. Rivera's instruction to you was no longer
9 applicable?
10 A Yes.
11 Q Please tell me exactly what that was.
12 A I talked to Mr. Schwartz on the 19th prior to
13 this e-mail being sent, as I have already explained.
14 THE COURT: The 19th of November?
15 THE WITNESS: Yes.
16 THE COURT: Of 2009?
1~ THE WITNESS: Yes.
18 THE COURT: Okay.
19 THE WITNESS: I talked to Mr. Schwartz prior
20 to this e-mail being sent. We had a conversation about our
21 plans for the space. We had talked about our plans to
22 expand the box, and we also talked about the amendments
23 specifically. Mr. Schwartz had advised me that he was
24 working on that amendment diligently, and we would
25 anticipate getting that amendment very shortly.
82
1 Shortly thereafter our conversation this
2 e-mail was sent. I then called Mr. Schwartz. I did not
3 talk to him on the 20th, I talked to him the following week.
4 We had a very similar conversation, and I remember
5 Mr. Schwartz again being very supportive of H. H. Gregg in
6 the space, and also very -- he confirmed his willingness to
7 move mountains, as he had said, to get this amendment over
8 to us and get this approved and get this worked out.
9 So after this e-mail was sent, and after my
10 conversation with Mr. Schwartz, I did completely believe
11 that the amendment would be forthcoming. I did believe he
12 was still on board with us being in the space, and I did
13 believe that he was on board with us expanding this dock.
14 In my conversations and e-mail traffic with
15 the other tenants and other unit owners, we never have
16 gotten any objections to us expanding this dock, and, today
17 there still has not been any objection to us expanding this
18 dock.
19 BY MR. BRADSHAW:
20 Q Just so that I am clear, you are in receipt
21 of an affirmative instruction from your own landlord on the
22 basis of a cease and desist letter from the Condominium
23 Association's lawyer saying stop work until there's an
24 amended document drawn. At any time during your
25 conversations with David Schwartz, did David Schwartz say, I
83
•
1 am not concerned about seeing an amended document drawn up
2 and executed?
3 A No.
4 Q At any time did he say, ignore Mr. DiVita's
5 cease and desist notice, I'll work that out with Mr. DiVita?
6 A He did not specifically say that, no, but I
7 did believe that -- again, he was supportive in the
8 expansion of the dock, and we were anticipating them coming
9 shortly. I think that was very clear in our conversation.
10 Q Can you point me to any document or any
11 e-mail wherein you memorialized your conversation as you
12 have described it here in court with Mr. Schwartz and said,
13 let's be clear about this in light of the earlier e-mail
14 traffic, we have had the following conversation, and
15 consequently in reliance on our conversation I am moving
16 forward?
17 A It was all by phone or in person.
18 Q Okay. So, in other words, we have your
19 testimony and your testimony alone on this point and nothing
20 in writing?
21 A That would seem to be the case, yes.
22 Q On an issue that's so pivotal to all four of
23 the stores that you are responsible for seeing opening in
24 Central Pennsylvania depended on it?
25 A Yes.
84
•
1 Q On an issue that could be worth 53, 54
2 million dollars a year to your employer?
3 A Yes.
4 Q Sir, what is your educational background?
5 A College degree.
6 Q Anything beyond that?
7 A I have an MBA.
g Q Any other degrees?
9 A No.
lp Q Where did you get your MBA?
11 A The University of Tennessee.
12 THE COURT: I am fast running out of time on
13 this case. Do you have many nor more questions,
14 Mr. Bradshaw?
15 MR. BRADSHAW: I'm almost done, Your Honor.
16 THE COURT: All right. You may ask that
17 question, but then I think we have to move on.
18 BY MR. BRADSHAW:
19 Q Let me move on. Wouldn't you agree with me
20 the conversati on as important as the one we have just
21 described should have been confirmed in some manner?
22 MR. HAAR: I object to the form of the
23 question, Your Honor. Should have is a very lucid standard.
24 I'm not exactly sure what he's driving at here.
25 THE COURT: Mr. Bradshaw.
85
1 MR. BRADSHAW: I'll rephrase.
2 THE COURT: All right.
3 BY MR. BRADSHAW:
4 Q How many years have you been in the real
5 estate business?
6 A Since 2005, 2006.
7 Q Okay. So at least 4 or 5 years in real
8 estate business and an MBA. Do you believe as a matter of
9 good business practices that a conversation involving an
10 issue of this magnitude should be confirmed in writing?
11 A I took Mr. Schwartz -- I took the
12 conversation as someone who was supportive. Again, I took
13 his word and maybe that was my mistake.
14 MR. BRADSHAW: One moment, Your Honor.
15 THE COURT: Certainly.
16 MR. BRADSHAW: That's all I have. Thank you.
17 THE COURT: Mr. Kamvosoulis, do you have any
18 questions of this witness?
19 MR. KAMVOSOULIS: Yes, I actually do have a
20 couple of very brief questions, Judge.
21 THE COURT: Go ahead.
22 CROSS EXAMINATION
23 BY MR. KAMVOSOULIS:
24 Q This is Tom Kamvosoulis. I have a couple
25 questions for you. The first question is are you aware of
86
~ ~
1 any objections raised by any of the condo unit owners to the
2 expansion of the loading dock sitting here today?
3 A None, no.
4 Q Are you aware of any documents from any of
5 the condo unit owners objecting to the expansion of the
6 loading dock?
7 A No.
8 MR. KAMVOSOULIS: I have nothing else.
9 THE COURT: Okay. Mr. Haar, anything
10 further?
11 MR. HAAR: Just brief follow-up, Your Honor.
12 THE COURT: I really am out of time. If you
13 want to just ask a couple of questions that is fine. I'm
14 perfectly willing to come back at another time to continue
15 the hearing. Go ahead.
16 REDIRECT EXAMINATION
17 BY MR. HAAR:
18 Q I'll try, Your Honor, to be brief.
19 Mr. Vetzner, would you please pull out Exhibit H. H. Gregg
20 5, which is somewhere in the pile here? This has been
21 previously entered into evidence. If you look at the e-mail
22 that is at the front of page 1, are you with me?
23 A Yes.
24 Q Who is this e-mail from?
25 A Gil Rivera.
87
1 Q The bottom e-mail on page number 1?
2 A I'm sorry. Jeffrey Joss (phonetic).
3 Q And with what company is he?
4 A He is with Staples.
5 Q And does the second sentence of that e-mail
6 say let this serve as formal notice that Staples approves of
7 the expanded loading dock as shown on the attached site
8 plan?
9 A Yes, it does.
10 Q Okay. And was that e-mail then forwarded to,
11 among other people, you and Mr. Schwartz?
12 A Yes, it was.
13 Q And if you turn to the back of that exhibit,
14 are there schematic s that show the expanded dock exactly as
15 it exists today?
16 A Yes, it does.
17 THE COURT: Is Staples the unit owner?
18 MR. HAAR: Staples is --
19 THE COURT: No, I need the witness to tell
20 me. Is Staples the unit owner?
21 THE WITNESS: Olympia Retail is the retail
22 owner.
23 THE COURT: And they own Staples?
24 THE WITNESS: No. They own the building.
25 Staples leases.
88
CJ
1 THE COURT: So you have a lessee saying that
2 it does not object?
3 THE WITNESS: Correct.
4 THE COURT: Okay.
5 BY MR. HAAR:
6 Q I will hand you what has been marked as
7 Plaintiff's Exhibit -- excuse me, H. H. Gregg Exhibit 10.
8 (H. H. Gregg Exhibit No. 10 was marked for
9 identification.)
10 BY MR. HAAR:
11 Q I am showing you what has been marked as
12 H. H. Gregg Exhibit 10. I will ask if you can identify
13 this.
14 A I can.
15 Q What is it?
16 A It's an e-mail from Pet Smart approving the
17 dock expansi on.
18 Q And who sent this e-mail to you?
19 A This was sent to me from Gil Rivera.
20 Q And what was the import of this message to
21 you?
22 A They reviewed the plans, and Gil Rivera
23 commented th at it did receive verbal approval from Pet
24 Smart.
25 MR. BRADSHAW: Objection, this is simply
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1 reported hearsay.
2 THE COURT: Okay. The objection is
3 overruled. Now, is Pet Smart the unit owner or is that a
4 lessee?
5 THE WITNESS: Lessee.
6 THE COURT: And Mr. Rivera represents whom
7 again?
8 THE WITNESS: ARC Properties. My landlord.
9 THE COURT: Is that a unit owner?
10 THE WITNESS: Yes.
11 THE COURT: Okay. Mr. Haar.
12 MR. HAAR: Thank you, Your Honor.
13 (H. H. Gregg Exhibit No. 11 was marked for
14 identification.)
15 BY MR. HAAR:
16 Q I am going to hand up H. H. Gregg 11.
17 MR. HAAR: Before we do that, Your Honor, I
18 move for admission of H. H. Gregg Exhibit 10.
19 THE COURT: Mr. Bradshaw.
20 MR. BRADSHAW: I object on the basis of
21 relevance. It is another tenant.
22 THE COURT: Okay. And, Mr. Kamvosoulis, do
23 you have an objection to this exhibit? This is an H. H.
24 Gregg Exhibit No. 10. It is a message from Pet Smart.
25 Mr. Kamvosoulis?
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1 MR. KAMVOSOULIS: I have no objection.
2 THE COURT: Okay. Defendant's Exhibit H. H.
3 Gregg Exhibit 10 is admitted.
4 (Defendant H. H. Gregg Exhibit No. 10 was
5 admitted into evidence.)
6 BY MR. HAAR:
~ Q I am showing you what has been marked as
8 H. H. Gregg Exhibit 11. Can you identify this, please?
9 A It is an e-mail from Gil -- let me see here,
10 it is an e-mail from Dicks Sporting Goods approving the
11 expansion of the dock.
12 Q Did you receive this e-mail on or about
13 August 28th of 2009?
14 A I did, yes.
15 THE COURT: And is that a lessee or a unit
16 owner?
1~ THE WITNESS: It is a lessee.
lg THE COURT: Okay.
19 MR. HAAR: I would move for the admission of
20 H. H. Gregg 11.
21 THE COURT: Mr. Bradshaw.
22 MR. BRADSHAW: My objection's noted.
23 THE COURT: And the objection again is what?
24 MR. BRADSHAW: Relevancy.
25 THE COURT: Relevance because it should be a
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1 unit owner?
2 MR. BRADSHAW: Correct.
3 THE COURT: Okay. The objection is noted.
4 Mr. Kamvosoulis, do you have a position on this objection?
5 MR. KANIVOSOULIS: Your Honor, there is no
6 objection.
7 THE COURT: Okay. Defendant's Exhibit H. H.
8 Gregg 11 is admitted for what it is worth.
9 (Defendant H. H. Gregg Exhibit No. 11 was
10 admitted into evidence.)
11 (Defendant H. H. Gregg Exhibit No. 12 was
12 marked for identification.)
13 BY MR. HAAR:
14 Q Mr. Vetzner, I am handing you what has been
15 marked as H. H. Gregg Exhibit 12, and I will ask if you can
16 identify that, please.
17 A This is an e-mail from Tom Gallagher at Home
18 Depot claiming he has no objections to the plan we provided
19 him.
20 Q And did you receive that e-mail on or about
21 September 6, 2009?
22 A I did.
23 MR. HAAR: I move for the admission of H. H.
24 Gregg Exhibit 12.
25 THE COURT: Now whom is that from again?
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1 THE WITNESS: This is from Home Depot.
2 THE COURT: Home Depot.
3 THE WITNESS: Who has a -- if my
4 understanding is correct they do have a -- they are part --
5 they are a unit owner.
6 THE COURT: Okay. Mr. Bradshaw.
7 MR. BRADSHAW: Well, understanding the Court
8 is short of time, they are not the unit owner. I have the
9 same objection for a tenant.
10 THE COURT: You think they are a lessee?
11 MR. BRADSHAW: Yes.
12 THE COURT: Okay.
13 MR. KAMVOSOULIS: No objection from us,
14 Judge.
15 THE COURT: All right. Thank you. Defendant
16 H. H. Gregg Exhibit 12 is admitted for what it is worth.
17 (Defendant H. H. Gregg Exhibit No. 12 was
18 admitted into evidence.)
19 MR. HAAR: Concluding here very quickly, Your
20 Honor.
21 THE COURT: All right.
22 BY MR. HAAR:
23 Q Mr. Vetzner, if you could turn, please, to
24 H. H. Gregg Exhibit 7, which is in the pile there somewhere.
25 A Okay.
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1 Q And if you turn to the second page of H. H.
2 Gregg 7, ple ase?
3 A Okay.
4 Q And you will agree with me that that is an
5 e-mail from David Schwartz to Tom Gallagher at Home Depot,
6 correct?
7 A Correct.
8 Q And generally Mr. Schwartz is seeking Home
9 Depot's appr oval of the loading dock expansion, correct?
10 A Correct.
11 Q This e-mail was issued by Mr. Schwartz August
12 24th, 2009, correct?
13 A Correct.
14 Q Is there anything in there from Mr. Schwartz
15 about, I wan t Home Depot's approval, but I really don't care
16 because they are just a tenant?
17 A No.
18 Q Mr. Vetzner, during your phone conversations
19 with Mr. Schwartz in the late November, early December of
20 2009, time period, did Mr. Schwartz promise you that an
21 amendment to the Condominium Agreement was forthcoming?
22 A Yes.
23 Q Has he honored that promise to this day?
24 A No.
25 MR. HAAR: No further questions.
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1 THE COURT: Okay. These ten parking spaces,
2 are you in agreement that they have been eliminated by the
3 construction?
4 THE WITNESS: Yes, they have.
5 THE COURT: And tell me again how that is,
6 how are they eliminated?
7 THE WITNESS: The land was excavated and
8 there was curbing put in its place, I believe because of the
9 requirement for additional green space, and because of the
10 expansion of the dock, I think it may have impaired the
it ability to park there. So it served two purposes.
12 THE COURT: Mr. Kamvosoulis, did you have any
13 questions?
14 MR. KAMVOSOULIS: I'm sorry?
15 THE COURT: Did you have any questions of the
16 witness?
17 MR. KAMVOSOULIS: I don't.
18 THE COURT: And Mr. Bradshaw?
19 MR. BRADSHAW: I do not.
20 THE COURT: Okay. You may step down. Thank
21 you.
22 THE WITNESS: Thank you.
23 THE COURT: Are there any other witnesses to
24 be called?
25 MR. HAAR: No further witnesses for H. H.
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Gregg, Your Honor.
THE COURT: Mr. Bradshaw.
MR. BRADSHAW: Your Honor, in the interest of
getting the record closed today, I will waive rebuttal.
THE COURT: Okay. And, Mr. Bradshaw, tell me
what you want, and specifically why -- what immediate and
irreparable harm would come from leaving this construction
for the moment as it is.
MR. BRADSHAW: I am happy to do that, Your
Honor, and let me begin by sort of knocking down, if I may,
the straw map, which is the argument that has been made that
this should be torn down so that then the documents can
finally be drawn and executed so that it can then be
rebuilt. That is not what we are arguing at all.
What we are arguing is that the unit holders
have rights. There are multiple violations of the
Declaration of Condominium that are set out in the complaint
and in the motion, and I have legal authority for the Court
here that I am sharing with counsel. I have a copy of the
case for you, Your Honor. It is found at 497 A.2d 1354, and
it essentially stands for the proposition that if you
construct a real estate structure on land that you do not
own, you are entitled to a decree removing it.
THE COURT: And is that a preliminary
injunction case?
96
1 MR. BRADSHAW: Actually, yes, and the lower
2 court held that there were di minimus infractions, and it
3 would be too expensive to require the removal, and that
4 ruling was reversed by the Superior Court, which said the
5 issue of cost is irrelevant, the issue of di minimus is
6 irrelevant. If you build on land that you don't own, upon
7 an appropriate petition to the Court, the Court shall order
8 removal. Now, we are not attempting --
9 THE COURT: You say that got up to the
10 Superior Court on a preliminary injunction?
11 MR. BRADSHAW: Yes.
12 MR. HAAR: No. I hate to interject. It is
13 on appeal from a final decree.
14 THE COURT: Wait. Please. I didn't think
15 you could appeal a denial of a preliminary injunction.
16 Perhaps I am incorrect.
17 MR. BRADSHAW: 311 allows any order touching
18 a preliminary instruction to be appealed granting, denying,
19 modifying, but this does not specifically say that it is a
20 preliminary injunction. It talks about a decree entered
21 below.
22 THE COURT: All right.
23 MR. BRADSHAW: But in any event we are not
24 suggesting that this should be torn out. We think that that
25 is unusually draconian, particularly at the preliminary
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1 injunction stage.
2 THE COURT: So what are you asking for?
3 MR. BRADSHAW: We are asking, and, in fact,
4 the draft order that was provided to the Court indicates
5 that they should be enjoined from making use of this. It
6 need not be torn out.
7 THE COURT: And that would solve what?
8 MR. BRADSHAW: Well, what it would solve is
9 it would avoid rewarding them for repeatedly ignoring the
10 requirements of the declaration being called to their
11 attention and saying, you can't do it this way. And
12 otherwise what you have is a situation where the Court is
13 emboldening a party to say, I don't care what the contract
14 says, I'm going to go head and do it, I've got a store to
15 open, and I'll deal with the consequences later, whatever
16 they may be, and that is exactly what we have here.
17 THE COURT: And what immediate and
18 irreparable harm would come to you from not doing that?
19 MR. BRADSHAW: The immediate and irreparable
20 harm, Your Honor, is that they are occupying real estate
21 that they do not own. Some of this, frankly, because of the
22 speed with which they deliberately moved once they realized
23 we were serious about enforcing our rights, can't be
24 remedied. We can't unconstruct during the Christmas retail
25 season, but they have eliminated parking spaces. They have
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reconfigured driveways. They have done things in places
that they do not belong.
And we believe, as a matter of law, that
occupying land that you do not own adversely, and following
notice that you don't belong there is irreparable on its
face. And what this case that I am handing up suggests is
that if you find anything else, what you are essentially
doing is allowing forced sale of real estate. You are
allowing somebody to say, I'll pay you even though it's not
for sale. I've taken it, and now we'll straighten out what
money I owe you.
THE COURT: Okay. Very good. Thank you.
Mr. Haar, are you in agreement that a preliminary injunction
denial is appealable?
MR. HAAR: Yes, I agree with Mr. Bradshaw's
statement that whether an appeal -- a preliminary injunction
is granted or denied it is immediately appealable to, in
this case the Superior Court, I believe.
One thing I would note, I just received this
case from Mr. Bradshaw when he handed it up to Your Honor,
but in the very first sentence it says it is from a final
decree of the order from the Court of Common Pleas of
Montgomery County, an entirely different premise. I think
what Your Honor needs to look at is the six factors that we
outlined in our brief, which we handed up at the beginning
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1 of the first day of hearing.
2 There are six criteria as to whether or not a
3 preliminary instruction should issue, and I believe they
4 have failed to establish even one of them. The first
5 criteria is that the Court must be trying to prevent
6 immediate or irreparable harm. There is nothing left at
7 this moment for the Court to prevent.
8 The building was built in compliance with all
9 local codes, and is now ready to be used as a three bay
10 loading dock. Mr. Schwartz testified under oath this
11 morning that even though he has been involve d with this
12 project from day one, there has never been a point in time
13 where people have not been able to use that loading dock.
14 So as Mr. Bradshaw, you know, suggested, it
15 would be draconian not only to enforce us to tear down a
16 building, but to stop us from using a perfectly good
17 building that is there for an endeavor, that is opening the
18 H. H. Gregg store, that everybody recognizes is in the
19 interest of all the tenants, all of the people who are going
20 to get jobs there, and H. H. Gregg.
21 The second point of the preliminary
22 injunction analysis is that greater injury will result by
23 granting it as denying it, and it won't substantially harm
24 other interested parties. You know, we have put forward
25 uncontradicted evidence that 160 to 200 jobs are in the
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1 balance with H. H. Gregg opening this store, and I don't
2 think the Court should take lightly the idea that, oh, we
3 can just go out and find a dock some other place to use for
4 this.
5 The only harm that would be caused by this
6 Court denying the preliminary injunction is it would force
7 Mr. Schwartz to go back to his employer, Mr. DiVita, and
8 say, time to turn out the amended -- the amended condominium
9 document, and the parties could then sit down and get that
10 document done . Mr. Divita's been sitting on a $5,000
11 retainer for more than 3 months now, and I think the
12 inference to be drawn from the facts is that Mr. Schwartz is
13 the one who has been holding up that amendment so that he
14 can use it as leverage in expanding the Staples store that
15 he owns next door.
16 The third point of a preliminary injunction
17 analysis is that the injunction will restore the status quo.
18 I believe I heard Mr. Bradshaw say they are not looking to
19 tear this building down so in that respect no order here
20 will restore the status quo. The status quo is clearly that
21 the occupant of that building was entitled to use the
22 loading dock.
23 Fourth, their right to relief is clear. I
24 don't believe their right to relief is clear because what we
25 have demonstrated through the testimony is that this H. H.
101
1 Gregg deal is something that started in or around July of
2 2009, and from word one the premise was H. H. Gregg needs a
3 three bay loading dock to make this happen, and Mr. -- the
4 words attributed to Mr. Schwartz are, he would move
5 mountains to make this happen. Everybody agrees that H. H.
6 Gregg opening a store is what the result should be here, but
7 for some reason its gotten mired in this -- mired in this
8 controversy.
9 The fifth criteria is the injunction is
10 reasonably suited to abate the matter at issue, and as I
11 indicated earlier, I don't think the injunction that they
12 are seeking is reasonably s uited to abate any wrong that
13 they allege might be taking place. What needs to happen
14 here isn't for H. H. Gregg to stop using a dock, it is for
15 Mr. Schwartz and Mr. DiVita to forward the amended contract
16 agreement that they have been promising for more than three
17 months now.
18 Everybody was in agreement that this was a
19 good idea, and they signed off on permitted plans for the
20 expansion. It is just now a matter of getting that --
21 getting that formalized in a document in a way that should
22 not impact H. H. Gregg's ongoing operations.
23 And the last point is that the injunction
24 will not harm the public interest. As I pointed out just a
25 few minutes ago, I believe the public interest here is
102
1 clearly in favor of H. H. Gregg opening this store as its
2 planned and has been discussed with Mr. Schwartz since last
3 July.
4 It would seem obvious that all of the tenants
5 in this condominium stand to benefit by H. H. Gregg opening.
6 H. H. Gregg is the store closest to the Carlisle Pike, which
7 is the main artery going by this building. When people see
8 that the H. H. Gregg building is opened, it makes the whole
9 condominium complex seem more vibrant.
10 I think Mr. Schwartz stands to benefit from
11 this perhaps even more directly than some of the other
12 tenants because he owns the Staples right next door. So if
13 people are going into an open H. H. Gregg building rather
14 than passing by a closed Circuit City building, they are
15 more likely to go into the Staples building to make
16 purchases.
17 So, Your Honor, I believe that H. H. Gregg
18 has proven, even though it was not its burden to do so, that
19 all six points point in favor of H. H. Gregg, and that the
20 motion for preliminary injunction should be denied. Thank
21 you.
22 THE COURT: Okay. Thank you.
23 Mr. Kamvosoulis, did you want to state your position?
24 MR. KAMVOSOULIS: Your Honor, respectfully,
25 we are going to decline from making any further statements.
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1 THE COURT: All right. In other words, you
2 don't wish to be considered to be on either side in this
3 case?
4 MR. KAMVOSOULIS: Well, I am not saying that,
5 Your Honor. If you would like a formal statement, what I
6 would say is, after listening to the arguments of the
7 attorney on behalf of the H. H. Gregg, I think he's covered
8 all of the points as to why a preliminary injunction should
9 not be issued in this case, most notably a lack of immediate
10 and irreparable harm that needs to be prevented by the Court
11 and a lack of a reasonable probability of success on the
12 merits.
13 You add those together with the idea that
14 this product is one that all of the parties agree that H. H.
15 Gregg should open and should be part of this complex, it
16 will bring tons of jobs to the area, and it would be a good
17 thing for the public, especially in light of the diminished
18 economic times, that all signs point to the elements of an
19 injunction under Pennsylvania not being met and an
20 injunction should be denied, and I have nothing further
21 beyond that.
22 THE COURT: All right. Thank you. We will
23 enter this order:
24 AND NOW, this 22nd day of February, 2010,
25 upon consideration of Plaintiffs' Amended Motion for a
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1 Preliminary Injunction, and following a second period of
2 hearing, the record is declared closed and the matter is
3 taken under advisement.
4 (End of order. )
5 THE COURT: And I will try to have an order
6 entered within the next three or four days. Very nicely
7 presented by all counsel. Court is adjourned.
g (The proceedings concluded at 4:05 p.m.)
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CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above cause, and that this is a correct transcript of
same.
Michele A. Eline
Official Court Reporter
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
Date
J, esley O1 Jr., J.
' th Judicia District
106
IN THE COURT OF COMMON PLEAS r
a r
OF CUMBERLAND COUNTY,PENNSYLVANIA
6-‘3F:-., �
r-
.i-->,... --0
HAMPDEN COMMONS CONDOMINIUM °-, "r
ASSOCIATION and IIAMPDEN OFFICE — -.
INVESTORS,L,P.,
No.09-8223 Civil
Plaintiffs,
v.
BOND-CIRCUIT IX DELAWARE JURY TRIAL D. M.ANDED
BUSINESS TRUST,ARC PROPERTIES,
INC.and H.H,GREGO,INC.,
Defendants.
PRAECIPE FOR DISCONTINUANCE WITH PREJUDICE
TO THE PROTHONOTARY:
Pursuant to Pa.R.Civ. P.229,please mark the abo e-captioned matter discontinued with
prejudice,
Respectfully submitted,
Donald B.Kaufman,Esq. 'oma• Kamvosoulis, . q,
McNees Wallace&Nurick LLC Brach Eichler,LLC
100 Pine Street 101 Eisenhower Parkway
P.O.Box 1166 Roseland,NJ 07068
Harrisburg,PA 17108-1166 973-403-3130—tkamvosouliscjbrac}}eichler.com
717-237-5373--d kaufmati,m wtt,eom Attorneys for Defendants Bond-Circuit IX
Attorneys for Plaintil s Delaware Business Trust and ARC Properties,Inc.
/,f stir !.I , .
/". •el • .Fino,Esq.( iii 72)
Matthew M.Haar,Esq.(85688)
Saul Ewing LLP
2 North Second Street,7th Floor
Harrisburg,PA 17101
717-257-7508—mhaar@saul.com
Attorneys for Defendant H.H. Gregg Inc,
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the
foregoing document was served by first-class mail, postage prepaid, upon the following:
Thomas Kamvosoulis, Esquire
Brach Eichler, LLC
101 Eisenhower Parkway
Roseland, NJ 07068
Michael A. Finio, Esquire
Matthew M. Haar, Esquire
Saul Ewing LLP
2 North Second Street, Seventh Floor
Harrisburg, PA 17101
NiriAlt" 1(1/1144/1
Donald B. Kaufman
Dated: January 8, 2014