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HomeMy WebLinkAbout09-8338IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KINSLEY CONSTRUCTION, INC., No. Claimant 4 y ??3 V. I Mechanics' Lien Claim LIT INDUSTRIAL LIMITED PARTNERSHIP, Owner NOTICE OF FILING MECHANICS' LIEN CLAIM To: LIT Industrial Limited Partnership 2650 Cedar Springs Rd., Suite 850 Dallas, TX 75201-1491 TAKE NOTICE that Kinsley Construction, Inc., filed a Mechanics' Lien Claim against premises owned by you situate in South Middleton Township, Cumberland County, Pennsylvania, identified as parcel 40-08-0579-019, and known as 70 and 90 Logistics Drive, Carlisle, PA 17013. Said Mechanics' Lien Claim is for the sum of $1,614,727.00, plus interest as allowed by law, and costs of suit. Said Mechanics' Lien Claim was filed in the Court of Common Pleas of Cumberland County, Pennsylvania, to No. Of- ?13? , and was filed on « 3 , 2009. A copy of said Claim is attached hereto. 2759052 BARLEY SNYDER LLC By: "!c Paul W Minnich 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717-846-8888 Fax: 717-843-8492 E-Mail: pminnich@barley.com PA 74453 Attorneys for Claimant 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MNt ILLY UUNSTRUCTION, INC., V. Claimant LIT INDtJSTRIAL LIMITED PARTNERSHIP, Owner No. y _ T-3 3 Mechanics' Lien Claim MECHANICS' LIEN CLAIM Kinsley Construction, Inc., by and through its undersigned counsel, files the following Mechanics' Lien Claim: 1. The Claimant is Kinsley Construction, Inc., a Pennsylvania corporation which has a principal office and place of business at 2700 Water Street, York, York County, Pennsylvania 17403. Claimant files this Lien as a Contractor. 2. The owner of the real estate against which this claim is filed is LIT Industrial Limited Partnership, a Delaware limited partnership registered to do business in Pennsylvania which has a principal office and place of business at 2650 Cedar Springs Rd., Sutie 850, Dallas, Texas 75201. 3. Claimant's last day of work was September 21, 2009. 4. The party with whom Claimant contracted was LIT Industrial Limited Partnership, 2650 Cedar Springs Road, Suite 850, Dallas, Texas 75201-1491. 1 5. The labor and material supplied by Claimant accorded with the Short Form Agreement for Fixed Price Construction Services dated August 13, 2009, between the Owner and Contractor, a true and correct copy of which is attached and made a part hereof as Exhibit A. 6. The general nature and character of the labor and materials furnished by Claimant included the design, engineering, construction and construction management services, all supervision, labor, materials, equipment, building permits, barricades, safety programs and related requirements, for the erection and construction of the project known as Tenant Improvements for Exel/Energizer, all as more fully set forth in the Scope of Work attached and made a part hereof as Exhibit B. 7. The amount claimed to be due is $1,614,727.00, as shown on the Accounts Receivable Aged Analysis attached and made a part hereof as Exhibit C. 8. The real property subject to the lien is situate in South Middleton Township, Cumberland County, Pennsylvania, known as 70 and 90 Logistics Drive, Carlisle, Pennsylvania, and identified as Parcel 40-08-0579-019 in the Cumberland County records. Said real property is further described in the Deed dated December 19, 2007, and recorded in the Office of the recorder of Deeds of Cumberland County, Pennsylvania in Deed Book 2007, page 47518, a true and correct copy of which is attached and made a part hereof as Exhibit D. 2 WHEREFORE, Claimant, Kinsley Construction, Inc., claims to have a lien upon the premises herein described in the sum of $1,614,727.00, plus interest as allowed by law, and costs of suit. 2759052 BARLEY SNYDER LLC By: ?/'dol Paul W. nnic 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717-846-8888 Fax: 717-843-8492 E-Mail: pminnich@barley.com PA 74453 Attorneys for Claimant VERIFICATION I, Jerry L. Caslow, Vice-President-Finance of Kinsley Construction, Inc., hereby verify that the facts set forth in the foregoing Mechanics' Lien Claim are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Dated: I a-G (2-0 09 11/1 4411-- JATy L. Caslow EXHIBIT A , T." f3 8141` SHORT FORM AGREEMENT FOR FIXED PRICE CONSTRUCTION SERVICES This AGREEMENT is made as of the Owner: (Name and address) and the Contractor: (Name and address) For the Project known as: (Name and location) August 13th, 2009, between: LIT Industrial Limited Partnership Gables Villa Rosa 2650 Cedar Springs Road, Suite 850 Dallas, Texas 75201-1491 Attn: John M. Clinton Kinsley Construction Company 2700 Water Street York, Pennsylvania 17403 Attn: Mr. Richard Ness Tenant Improvements for ExellEnergizer 70 Logistics Drive Carlisle, PA 1. AGREEMENT. Collectively, this Short Form Agreement for Fixed Price Construction Services (this "Agreement"), the Drawings, the Specifications, all Exhibits hereto and documents incorporated herein by reference shall constitute the "Contract Documents." Exhibits included in the Contract Documents are as follows: Exhibit A - Scope of Work Exhibit 8 - Lien Release Forms Exhibit C - Schedule Exhibit D - Contractor's Certificates of Insurance Exhibit E - Certificates of Completion 2. DEFINITIONS. 2.1 Work. "Work" means the supply and performance by Contractor of all things necessary and inferable from the Contract Documents, including without limitation, labor, materials, equipment and services, as being required to fully complete the tasks and structures described in Schedule 1, Part A, in accordance with the requirements of the Contract Documents. 2.2 Drawings. "Drawings" are the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued, which show the design, location and dimensions of the Work, including plans, elevations, sections, details, schedules and diagrams. 2.3 Specifications. "Specifications' are the Contract Documents labeled as such, wherever located and whenever issued, which set forth the minimum written requirements for materials, equipment, construction systems, standards and workmanship for the Work and performance of related services. 2.4 Substantial Completion. "Substantial Completion" means that stage in the progress of the Work when the Work in its entirety, or designated portion thereof, is ready for beneficial use and occupancy by Owner in accordance with Section 12 below. Short Form Fixed Price Agreement January 2009 Page 1 2.5 Final Completion. "Final Completion" means that stage in the progress of the Work when the Work has been finally accepted by Owner pursuant to Section 12 below. 2.6 Change. *Change" shall mean an increase or decrease in the Contractor's Work or modification to the Construction Schedule, resulting from an event which both parties agree justifies a change in the Contract Price and/or the Contract Time. 2.7 Change Orders. *Change Order" shall mean a written document formalizing a Change which is signed by Owner and Contractor, which shall, at a minimum, contain the following: (a) a full description of the Change in the scope of Work, (b) the amount of any increase or decrease in the Contract Price, if any, (c) the extent of any increase or decrease in the Contract Time, if any, and (d) an unequivocal statement that the signed Change Order constitutes a full and final release and waiver of any and all rights by the Contractor to further pursue claims and/or causes of action arising out of the Change. 2.8 Claim. "Claim' means a demand or assertion by the Contractor seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract, or resolution of other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract. 2.9 Contractor Parties. "Contractor Parties" means (a) Contractor, (b) Contractor's officers, members, partners, agents and employees, and (c) all other persons and entities over which Contractor has control, including subcontractors and vendors of Contractor. 2.10 Owner Parties. "Owner Parties" means collectively Owner and its subsidiary companies, affiliated companies and parent companies of every tier and its respective directors, officers, employees, agents, servants and assignees permitted herein. 2.11 Project. The "Pro ect" comprises the Contractor's Work plus those activities to be performed by Owner and any other direct contractors and consultants to Owner. 3. INTENT OF CONTRACT DOCUMENTS. The intent of the Contract Documents is for the Contractor to perform all necessary scheduling, procurement, supervision, construction, and construction management services and supply all necessary labor, materials, equipment and related work and services, including all things inferable from the Contract Documents as being necessary to fully complete the Work in accordance with the requirements of the Contract Documents, including but not limited to the Contract Time requirements set forth below. 4. CONTRACT PRICE. 4.1 Contract Price. In full consideration for the performance of the Work in strict accordance with the Contract Documents, Owner shall pay Contractor a fixed price of: One Million Nine Hundred Seventy Five Thousand Seven Hundred Sixty Five Dollars and no/100 ($1,975,765.00) Jky- 71141-5 which shall be the "Contract Price.' The Contract Price shall be paid in accordance with the terms and conditions set forth in Section 4.2. Except for adjustments pursuant to finalized Change Orders, the Contract Price referred to above is the total amount payable by Owner for any and all of Contractor's costs for satisfactorily performing the entire scope of the Work in strict accordance with the Contract Documents, including all costs for payment and performance bonds for the Contractor, its subcontractors and vendors of every tier (if any) and all insurance coverages required by this Agreement. 4.2 TERMS OF PAYMENT 4.2.1 Payment. Owner shall make payment to Contractor as follows: (a) Applications for Payment. Contractor's Application for Progress Payment shall include a breakdown of cost and the percentage of completion of each portion of the Work as of the end of the billing period Short Form Fixed Price Agreement Page 2 January 2009 covered by the Application for Payment and shall be accompanied by documentation, waivers and/or releases of liens required by this Agreement, or otherwise as reasonably required by Owner. (b) Billing Period for Payment. Contractor shall submit its Application for Payment on the 25`h day of each month, covering services or Work performed from the first day through the last day of the month. Contractor shall submit its Application for Final Payment Amount including retainage on the 25`" day of the last month that Work is performed. (c) Progress Payment. Progress Payments for services shall be made by Owner upon Contractor's partial completion to Owner's satisfaction, of segments of Work described in Exhibit A on or about the 201h day of the month following the billing period. (d) Final Payment. Final Payment for services shall be made by Owner upon Contractor's Final Completion to Owner's satisfaction, of all segments of Work described in Exhibit A and submission to Owner of (a) consent of surety, if any, to final payment, (b) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment, if any, is currently in effect and will not be cancelled or allowed to expire until at least 30 days prior written notice has been given to Owner, (c) all documents, warranties, manuals or other items required for completion of the Work or complete use of the property, and (d) a final Application for Payment. (e) Payment of Retainage. Payment of retainage held shall be made by Owner on or about the 20' day of the month following the month in which the Certificate of Final Completion is issued. 4.2.2 Retainage. Owner shall retain ten (10%) percent of the approved total amount of each Application for Payment pending final acceptance of the Work by Owner. 4.2.3 Lien Releases. Each Application For Progress Payment submitted by Contractor shall be accompanied by: (a) appropriate lien releases which are signed and notarized by Contractor for amounts attributable, less retention, to the Contractor's services; (b) appropriate lien releases which are signed and notarized by each first- tier subcontractor and vendor listed in such Application For Progress Payment for amounts attributable, less retention, to their respective services; and (c) appropriate lien releases which are signed and notarized by each of their respective sub-tier subcontractors and suppliers listed in such Application For Progress Payment for the amounts attributable, less retention, to their respective services. Such lien releases shall be on the forms attached hereto as Exhibit B. The releases shall be full or partial and/or conditional or unconditional, as designated by Owner, and shall only be effective upon receipt of payment. Execution of such releases shall be an absolute condition precedent to Owner's duty to pay any amounts pertaining thereto. In addition, Owner may - at any time direct Contractor to submit an affidavit that all payrolls, invoices for material and equipment, and other indebtedness connected with the Work and associated with an Application for Progress Payment have been paid. 4.2.4 Owner's Right to Withhold. Notwithstanding anything to the contrary herein, Owner may withhold from any payments otherwise due to the Contractor up to one hundred and fifty percent (150%) of the amount which, in Owner's opinion, is necessary to protect Owner from any overpayment, claims, damages, lawsuits or losses which may result from (a) Contractor's failure to perform the Work in accordance with the Contract Documents, (b) reasonable evidence of the failure of Contractor to make timely or proper payments to its subcontractors and vendors, (c) Contractor's failure to obtain and submit lien waivers as required herein, (d) the filing of any mechanic's lien against the Owner's premises by any subcontractor or vendor of any tier, and (e) Contractor's failure to expeditiously take steps to remove mechanic's liens filed against Owner's premises. 4.2.5 Joint Payee Checks. Owner may, but is not obligated, at any time elect to issue one or more checks which are payable jointly to Contractor and its subcontractors or vendors of any tier. 4.2.6 Disputed Payments. In the event of a dispute with respect to amounts payable under an Application for Progress Payment or the Application for Final Payment, Owner shall pay all undisputed amounts and Contractor shall continue performing any remaining Work hereunder. Any amounts in dispute and withheld by Owner shall be promptly paid after the earlier of: (a) settlement of the dispute by execution of a final Change Order document; or (b) a resolution of the dispute pursuant to Section 17.5 of this Agreement. Short Form Fixed Price Agreement Page 3 January 2009 4.2.7 Acceptance of Final Payment. Acceptance of final payment by the Contractor, a subcontractor of any tier or material supplier of any tier shall constitute a complete and final waiver of claims by that payee. 4.3 Payment of Taxes. Contractor shall be responsible for the payment of (a) state and local sales and use taxes relating to the Work, (b) excise taxes and (c) personal property taxes on equipment owned or leased by Contractor, all of which shall be included in the Contract Price. Contractor will not be separately reimbursed for any taxes. 5. CONTRACT TIME 5.1 Completion Guarantee. Performance of this Agreement shall commence upon the latter to occur of (i) issuance of permits, and (ii) execution of this Contract by the Owner, and shall continue until the Contractor satisfactorily performs and Owner duly accepts the Final Completion of the Work. Subject to Change Orders, Contractor guarantees to Owner that the Work will reach Substantial Completion within 43 calendar days or on or before _September 24th. 2009 (the "Contract Time"). J A 5.2 Time of the Essence. Contractor acknowledges that TIME IS OF THE ESSENCE and that Owner's business interests will suffer substantial losses in the event that the Work is not completed within the Contract Time. In this regard. Contractor hereby accepts and confirms that the Contract Time is reasonable for completing the Work within such time requirements and hereby agrees to dedicate such personnel and other resources as may be necessary to assure that the Work is continuously managed and performed in a diligent, skilled and workmanlike manner and in accordance with the Contract Documents. 5.3 No Damage for Delay. If the Contractor is hindered, disrupted, interfered with or delayed at any time in progress of the Work by acts of God, national emergency, unforeseeable occurrences or other events outside the control of the Contractor, an act of the Owner, intentional or otherwise, in contradiction to or not in accordance with Owner's rights or obligations under the Contract Documents or of an employee of the Owner, of a consultant to the Owner, or of a separate contractor employed by the Owner, or by changes ordered in the Work by Owner, then, if the Contractor complies with Section 15.5, the Contract Time shall be extended by Change Order for such reasonable time caused by the delay, hindrance, disruption or interference; provided, however, that the Contractor shall not be entitled to an extension of the Contract Time for delays, disruption, hindrance or interference resulting from material shortages or transportation disruptions or delays. This shall be the only remedy for delay, hindrance, disruption or interference to Contractor. Contractor shall receive no financial compensation for delay, disruption, interference or hindrance to the Work. IN NO EVENT SHALL OWNER BE LIABLE TO CONTRACTOR OR ANY SUBCONTRACTOR, VENDOR OR SUPPLIER OF CONTRACTOR, ANY OTHER PERSON OR ANY SURETY FOR OR ANY EMPLOYEE OR AGENT OF ANY OF THEM, FOR ANY DAMAGES ARISING OUT OF OR ASSOCIATED WITH ANY DELAY, HINDRANCE, DISRUPTION OR INTERFERENCE, EVEN IF SUCH DELAY, HINDRANCE, DISRUPTION OR INTERFERENCE RESULTS FROM, ARISES OUT OF OR IS DUE, IN WHOLE OR IN PART, TO THE NEGLIGENCE, BREACH OF CONTRACT OR OTHER FAULT OF OWNER. 5.4 Weather Days. Contractor shall not be entitled to an extension of the Contract Time as a result of weather conditions normally experienced in the geographic area. If adverse weather causes a work day to be lost, it shall be made up by working on a Saturday. Contractor shall keep a record of those days lost to adverse weather conditions that cannot be and are not made up on a Saturday. If the number of these days lost in a month exceed the number of adverse weather days per month ordinarily encountered, if the Contractor complies with Section 15,5, the Contract Time will be extended. If the number of days lost per month are less than the number of adverse weather days per month ordinarily encountered, the Contract Time will be reduced. Each month Contractor will report the number of days lost or gained under these terms. Additionally, the adverse weather days must actually disrupt critical path activities to justify an extension. 6. RECORD KEEPING 6.1 Required Accounting Records. Contractor shall at all times implement and maintain, and require its subcontractors and vendors of every tier to implement and maintain, such cost control systems and daily record keeping procedures as may be necessary to attain proper fiscal management and detailed financial records for all costs related to the Work. To facilitate the settlement of requests for Change Orders and Claims pursuant to this Short Form Fixed Price Agreement Page 4 January 2009 Agreement, Contractor, its subcontractors and vendors of every tier shall at all times implement and maintain records sufficient for Owner to verity all extra costs to the extent payable in accordance with this Agreement. Such records shall include, without limitation, (a) invoices for materials and equipment, accounts payable and accounts receivable, (b) subcontract documentation, purchase orders and vouchers, (c) records of all change orders submitted and/or approved for all subcontracts and purchase orders of every tier, and (d) other items such as bids, proposals, estimating work sheets, quotes, cost recaps, schedule logic recaps, tabulations, submittals, insurance policies, insurance premium records, performance bond premium records, tax returns, access to specific general ledger entries, canceled checks and computer data relating to the Work and this Agreement. 6.2 Access to Records. The parties mutually agree and confirm their desire to promptly settle disputes which may arise during the course of the Work and thereafter. Owner's authorized representatives shall be afforded access to the records described in Section 6.1 above at all reasonable times for purposes of inspection and audit to the full extent as may be necessary to assist Owner in the resolution of any issues pertaining to Change Orders, Claims or any other issues pertaining to an increase or decrease in the Contract Price and/or the Contract Time. 7. REPRESENTATIONS BY CONTRACTOR. By entering into this Agreement, Owner is relying on Contractor's undertaking to furnish its best skill and judgment and to cooperate with Owner in furthering the best interest of Owner, the Work and the Project. Specifically, by executing this Agreement, Contractor represents that it has examined the Site, has fully familiarized itself with the nature and extent of local conditions under which the Work will be performed, and verified to its satisfaction the nature and quantity of Work required, and has carefully studied the Contract Documents and agrees that they are full, complete and sufficient to enable the Contractor to determine the cost of the Work and time of performance and to enable the Contractor to construct the Work as determined therein. Contractor assumes the risk of such conditions and shall fully complete the Work within the Contract Time and for the Contract Price. 8. CONTRACTOR'S RESPONSIBILITIES. In fulfilling its responsibilities under this Agreement the Contractor shall (a) cause the Work to be constructed in compliance with (i) the latest approved Drawings and Specifications and (ii) all applicable laws, including those relating to ADA, immigration, environmental protection, asbestos and hazardous materials and safety, such that the Project, when completed, will comply with applicable laws, (b) shall supervise and direct the Work, using the Contractor's best skill and attention, (c) shall perform the Work in a good and workmanlike manner and in the most expeditious and economical manner consistent with the interests of Owner, (d) shalt exercise the degree of care, skill and diligence in the performance of the Work in accordance with and consistent with industry standards for similar projects and circumstances, (e) shall utilize its best skill, efforts and judgment in furthering the interests of Owner, and (1) shall furnish efficient business administration and supervision (the Contractors' "Standard of Care"), and in furtherance thereof, Contractor shall provide work and services that include, but are not limited to, the following: 8.1 Construction Schedule. Prepare and provide to Owner a construction schedule for the Work (the "Construction Schedule'), and periodically provide to Owner updates thereto for its review and approval. 8.2 Warranties. Provide Owner with any warranties applicable to equipment and materials furnished by the Contractor, which warranties shall be for a minimum of twelve (12) months, except where standard manufacturer's warranties extend greater than twelve (12) months, in which case such warranties shall be for a minimum of such standard longer period; 8.3 Notice of Errors. Promptly notify Owner in writing of any errors, omissions or discrepancies discovered by Contractor in the Contract Documents, including any observed failures to comply with applicable laws, statutes, ordinances, building codes and other rules and regulations. 8.4 Operating Manuals. Provide Owner with two (2) complete sets of operating and maintenance manuals with respect to all equipment installed as part of the Work. 8.5 Site Discipline. Enforce strict discipline and good order among its personnel and all personnel of its subcontractors while performing Work at the Site or elsewhere. Short Form Fixed Price Agreement Page 5 January 2009 8.6' Permits. Obtain all permits and licenses required for construction of the Project, including all permits relating to the activities of subcontractors of any tier, and pay all fees and costs relating thereto. 8.7 Systems and Procedures. Develop and implement a system and procedures for (a) reviewing its own Work and the Work of its subcontractors and vendors of every tier for defects and deficiencies, (b) reviewing and processing and paying subcontractors and vendors that is consistent with the terms of this Agreement, and (c) preparing, reviewing and processing Change Orders. 8.8 Site Security. In cooperation with Owner's security staff, assist Owner with the development and implementation of an effective security program for protection of the Work in progress. 8.9 Coordination with Others. Coordinate its construction activities with the activities of Owner and Owner's other contractors and provide the necessary personnel and services within the Contract Price to coordinate and interface its Work with Owner's activities at the proper time and in a manner not to delay others or increase costs. 8.10 Contractor's Operations. Contractor shall confine its operations at the Site to areas designated by Owner and shall not unreasonably encumber the Site or areas in the vicinity of the Site with materials, equipment or debris. 8.11 Protection of Existing Property. Take every reasonable precaution to protect existing property (including, but not limited to, structures and landscaping) from damage by construction personnel or equipment throughout the process of the Work. Particular attention shall be given to protection of the paved sidewalk/walkways, Site lighting and the building finishes immediately adjacent to the construction area. Upon completion of Work, Contractor shall replace at no cost to Owner, any and all damaged materials which is to remain on the property after completion of the Work, including but not limited to, paved walkway surfaces, tiles, plants, shrubbery, trees, Site lighting fixtures and other finishes with like materials in every respect. 9. OWNER'S RESPONSIBILITIES. 9.1 Information and Services. Owner shall designate the areas within and around the Project where the Work is to be performed (the "Site"), provide access thereto and provide an area or areas in the vicinity of the Site for the Contractor's Site office, storage, lay-down areas and employee parking. 9.2 Coordination of Activities. Owner shall cooperate with and reasonably coordinate its activities and the activities of its other contractors with the Work of Contractor. 10. SUBCONTRACTORS AND VENDORS. Contractor shall be responsible for the performance of its subcontractors and vendors of every tier to the same extent as if performed by Contractor on a direct basis, including coordination of those portions of the Work performed by its subcontractors and vendors. For purposes of construing the Contractor's obligations in the Contract Documents, including Contractor's warranty and indemnity obligations, the terms subcontractor and vendor shall include any and all subcontractors, sub-tier subcontractors, suppliers, sub-suppliers and installers of every tier and each of their respective employees, agents and representatives that perform, supply, or install a portion of the Work. 11. WARRANTY. Contractor guarantees its Work, whether performed by Contractor's own personnel or by subcontractors of any tier, shall be free from faults and defects and in strict conformance with the Standard of Care and other provisions of the Contract Documents during performance of the Work and after the date of Final Completion of the Work and acceptance thereof by Owner. Contractor further guarantees that all materials, equipment and supplies incorporated into the Work shall be new and of first class grade and quality. During performance of the Work and for a period of twelve (12) months after the date of Final Completion and acceptance thereof by Owner, Contractor shall be responsible for correcting any and all defective designs created by on or behalf of Contractor in performance of the Work, workmanship, materials or equipment or other damages arising from a breach of this warranty at Contractor's sole cost and expense. Contractor's obligation to correct pursuant to this Section 11 is not a limitation on, but is in addition to, (i) any obligation of a subcontractor, supplier, vendor or manufacturer, and (ii) all other remedies available to Owner at law or in equity. Short Form Fixed Price Agreement Page 6 January 2009 12. ' SUBSTANTIAL AND FINAL COMPLETION 12.1 Substantial Completion. The Contractor shall request an inspection for purposes of Substantial Completion in writing when the Contractor considers that the Work is substantially complete in accordance with all requirements in the Contract Documents. Unless waived by Owner in writing, Substantial Completion of the Work shall not occur earlier than the date of issuance by the relevant governmental authority of a Certificate of Occupancy or similar permit or certificate that permits occupancy of the Project ("CO"). Prior to inspection for Substantial Completion, Contractor shall prepare and provide Owner with a proposed list of punch list items for purposes of determining Final Completion, including Contractor's proposed dates for the completing each Item. Upon receipt of Contractor's request and the proposed list of punch list items, Owner shall make arrangements with the Contractor to inspect the Work. Prior to the issuance of a Certificate of Substantial Completion, the parties shall develop a final punch list which must be completed prior to Final Completion. Owner shall have the final decision as to whether or not Contractor has achieved Substantial Completion. When Owner determines that the Work is substantially complete and a CO has been obtained therefor, Contractor shall prepare for Owner's signature a Certificate of Substantial Completion, in the form attached hereto as Exhibit E, which shall certify the date of Substantial Completion. 12.2 Final Completion. When Contractor considers that the Work is finally complete, Contractor shall so notify Owner in writing requesting a Certificate of Final Completion. Such notice shall be accompanied by the following (a) an affidavit that all payrolls, invoices for all materials and equipment and all other indebtedness connected with the Work for which Owner or its property might in any way be responsible or encumbered, and for which Owner has paid the Contractor, have been paid or otherwise satisfied, (b) final lien waivers and releases from all subcontractors and vendors of every tier in form satisfactory to Owner, (c) all occupancy certificates obtained from any government authority and all other required approvals and acceptances by any city, county and state authorities having jurisdiction and not previously provided to Owner, and (d) assignments of any remaining warranties and guarantees pertaining to the Work and not previously provided to Owner. Upon receipt of Contractor's request for a Certificate of Final Completion that complies with the above requirements, if Owner considers that the Work is fully completed in accordance with the Contract Documents, Owner shall promptly so advise Contractor. In the event that Owner does not agree that Final Completion has been achieved, Owner shall promptly advise the Contractor in writing of the remaining items to be completed for purposes of Final Completion. Owner shall not withhold its agreement that Final Completion has been achieved for any arbitrary or capricious reason. After Contractor satisfies all remaining items necessary for Final Completion, Contractor may submit a further written notice to Owner stating that the Work is ready for re-inspection. Owner shall have the final decision as to whether or not Contractor has achieved Final Completion. When Owner agrees that the Work is finally complete, Contractor shall prepare for Owner's signature a Certificate of Final Completion, in the form attached hereto as Exhibit E, which certificate shall set forth the date of Final Completion. 13. INDEMNIFICATION. 13.1 Definitions. 13.1.1 "Indemnified Claims' means all damages, losses, injuries, liabilities, penalties, disbursements, costs, charges, assessments, and expenses (including attorneys' fees, experts' fees and expenses incurred in investigating, defending, or prosecuting any litigation or proceeding), assertions, claims, judgments, settlements, demands, litigation, suits, proceedings, causes of action (whether in tort or in law or at equity), or judgments. 13.1.2 "Indemnify" means to protect and defend a party against a potential Indemnified Claim and/or to compensate for an Indemnified Claim actually incurred. 13.2 Indemnity. 13.2.1 To the fullest extent permitted by law, the Contractor shall Indemnify and hold harmless the Owner Parties from and against Indemnified Claims, whether arising in equity, at common law, or by statute, or under the law of contracts, torts (including, without limitation, negligence and strict liability without regard to fault) or property, of every kind or character (including, without limitation, Indemnified Claims for personal injury (including emotional distress), real or personal property damage, or economic loss), including, without limitation, those arising in favor of or brought by any of Contractor's employees, agents, subcontractors, sub-subcontractors, Short Form Fixed Price Agreement January 2009 Page 7 suppliers, materialmen, or representatives, or by any governmental entity or by any other third party, based upon, in connection with, relating to or arising out of Contractor's (or its subcontractors', sub-subcontractors', suppliers', materialmen's, employees', or other person directly or indirectly employed by them or for whose actions they may be liable) (collectively "Itnde_mnitor") actions or inactions under this Agreement, the Work, any Indemnitor's failure to comply with all applicable laws, or any liens or other encumbrances on the Work or Owner's property arising out of the Work and EVEN IF DUE IN PART TO AN OWNER PARTY'S NEGLIGENCE OR OTHER FAULT, BREACH OF CONTRACT OR WARRANTY, VIOLATION OF APPLICABLE LAW, OR STRICT LIABILITY WITHOUT REGARD TO FAULT; provided, however, that Contractor's obligation of indemnification under this Section 13.2 SHALL NOT extend to the extent the claimant's injuries or damages are caused by negligent acts or other fault of the Owner. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Section 13.2. 13.2.2 In claims against any person or entity indemnified under this Section 13.2 by an employee of the Contractor, a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Section 13.2 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a subcontractor under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. Similarly, the indemnification obligation under this Section 13.2 shall not be limited by any insurance required to be maintained by Contractors pursuant to this Agreement. 14. INSURANCE. 14.1. Insurance To Be Provided By Contractor. Before any Work is performed under this Agreement, Contractor shall obtain and maintain in force the following insurance: 14.1.1 Commercial General Liability Insurance of not less than Two Million Dollars ($2,000,000) per occurrence and with coverage to include bodily injury (including death), property damage including the premises of Owner and all Owner Parties, products and completed operations, blanket contractual, independent contractors, broad form property damage, personal and advertising injury, cross liability and severability of interests, and employers' liability. This policy shall be endorsed for coverage to be on a per project basis. 14.1.2 Workers' Compensation Insurance in full accordance with the statutory requirements of the state or states where the Work is to be performed and shall include bodily injury, occupational illness or disease coverage, and Employers' Liability with minimum limit of $500, 000 or as required by law. 14.1.3 Automobile Liability Insurance covering all operations of the Contractor pursuant to this Agreement involving the use of motor vehicles, including all owned, non-owned and hired vehicles with minimum limits per project of not less than One Million Dollars ($1,000,000) combined single limit for bodily injury, death and property damage liability. 14.1.4 Builder's Risk Insurance in the amount of the Contract Price as adjusted pursuant to this Agreement and shall apply to losses on an all-risk basis, including flood and earthquake coverage. Such policy shall be in effect until the Contractor achieves Substantial Completion of the Work in its entirety in accordance with Section 12 above and shall include risk of loss to materials and equipment intended for incorporation into the Work while: (a) in transit to the Site; (b) in storage at the Site; or (c) in storage at off-site locations. This policy shall name all Owner Parties and Contractor Parties as additional insureds on such policy. 14.1.5 Errors and Omissions Insurance in the amount of $1,000,000 per occurrence and $2,000,000 in the aggregate, if required by Owner. 14.1.6 Pollution Liability in the minimum amount of $5,000,000, if required by Owner. Not Required for this contract. 14.1.7 Such other insurance as maybe set forth in Exhibit A. 14.2 Carriers Acceptable to Owner; Certificates. All policies required to be obtained by Contractor pursuant to this Agreement shall be primary to any insurance maintained by Owner and shall maintained with insurance Short Form Fixed Price Agreement Page 8 January 2009 carriers that are satisfactory to Owner, with an A.M. Best rating of A;VIII or better or higher, and lawfully authorized to issue insurance of the types and amounts required by this Agreement in the State where the Project is located. Certificates of Insurance for each policy in a form satisfactory to Owner shall be delivered to Owner on or before execution of this Agreement, shall be attached hereto as Exhibit D. and shall each provide that Owner shall receive 30 days prior written notice of any cancellation, termination, expiration, non-renewal or material change of the insurance coverage or bond referred to in such certificate. 14.3 Additional Insured Status. With the exception of Worker's Compensation insurance and any required Errors and Omissions Insurance, all insurance required pursuant to this Agreement shall name the Owner Parties as additional insureds and such status shall be evidenced by certificates provided by Contractor's insurance carrier or carriers pursuant to Paragraph 14.2. 14.4 Insurance Not a Limitation on Liability. Contractor's compliance with the provisions of this Article 14 and the limits of liability shown for each of the insurance coverages to be provided by Contractor shall not be deemed to constitute a limitation of Contractor's liability for the claims or in any way limit, modify or otherwise affect the Contractor's obligations under the Contract Documents or otherwise. The insolvency, bankruptcy, or failure of any insurance company carrying insurance for Contractor or any subcontractor of any tier, or the failure of any insurance company to pay claims accruing shall not be held to waive any of the provisions of the Contract Documents. 15. CHANGE ORDERS. CLAIMS AND DISPUTES 15.1 Time Limits on and Submittal Requirements for Claims. Except where a shorter time period is set forth in this Agreement, Claims by the Contractor must be made within five (5) days after occurrence of the event giving rise to such Claim or within five (5) days after the Contractor first recognizes the condition giving rise to the Claim, whichever is later. Claims must be made by written notice, and the failure to provide such timely notice shall be a waiver of the applicable Claim and Owner shall not be liable for any damages and the Contract Time and Contract Price shall not be adjusted for such Claim or the event or condition giving rise to the Claim. An additional Claim made after the initial Claim has been implemented by Change Order will not be considered unless submitted in a timely manner. Contractor shall support its Claims with the documentation required by Section 17. 15.2 Continuing Contract Performance. Pending final resolution of a Claim including litigation, the Contractor shall proceed diligently with performance of the Agreement and the Owner shall make payments in accordance with the Contract Documents. Failure of the Contractor to continue Work pending final resolution of a Claim shall be a material default of Contractor's obligations hereunder. 15.3 Claims of Concealed or Unknown Conditions. Should Contractor discover a condition that is not contemplated by the information provided by the Owner, is concealed from an inspection of the property, is such that it could not be discovered upon reasonable inspection and testing, and is not ordinarily encountered in the contemplated construction (a 'Latent Defect^), the Contractor shall provide notice to the Owner within three (3) days of discovery of the Latent Defect and in any event before disturbing the Latent Defect. The Owner will investigate the condition, and if all elements of a Latent Defect exists at the Site, the Contract Sum and Contract Time will be adjusted as is equitable. 15.4 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Price for any reason, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property. Short Form Fixed Price Agreement January 2009 Page 9 15.5 Claims for Additional Time. If the Contractor wishes to make Claim for an increase in the Contract Time, written notice as provided herein shall be given. In addition to the documentation required under Section 17, the Contractor's Claim shall include an estimate of cost and of probable effect of delay on progress of the Work. In the case of a continuing delay only one Claim is necessary. 15.6 Resolution of Claims and Disputes. Owner and Contractor shall work expediently and in good faith to resolve all Claims. If a Claim has not been resolved, the Contractor may, within twenty (20) days after the Claim has been submitted to the Owner take one or more of the following actions: (1) submit additional supporting data pursuant to Section 17 or as requested by the Owner, (2) modify the initial Claim or (3) notify the Owner that the initial Claim stands. If no action is taken within twenty (20) days after the Claim is submitted, it shall be deemed rejected. If the Contractor takes no action within the twenty (20) days after it has submitted the Claim, the Contractor shall be deemed to have stood on its initial Claim. 15.7 Mediation. If a Claim is not resolved within twenty (20) days of its submission, either party may request non-binding mediation of the Claim by a neutral mediator to be jointly selected by the parties. The mediation shall be conducted within fifteen (15) days of the selection of the mediator. The parties shall share the mediator's fee and any filing fees equally. Participation in non-binding mediation in accordance with this Section 15.7 shall be a condition precedent to Contractor filing any legal action against Owner. 16. TERMINATION AND SUSPENSION. 16.1 Termination by Owner for Cause. Owner may terminate this Agreement in its entirety, or may elect to terminate any portion of the Contractor's Work, if the Contractor (whether by its acts or omissions or those of its subcontractors or vendors of any tier) commits any breach of its obligations in the Contract Documents, including but not limited to the following: 16.1.1 Contractor's failure to perform the Work in accordance with the terms of this Agreement, any rules, standards or practices established by Owner as being reasonably necessary to conduct operations on Owner's premises including the Site or Contactor's refusal or failure to supply enough properly skilled workers or proper material, and Contractor's failure to remedy any such noncompliance within ten (10) calendar days after receipt of written notice by Owner; 16.1.2 Contractor's failure to make prompt, payment to subcontractors or vendors for materials or labor supplied for the Work, including insuring prompt payments to sub-tier subcontractors and suppliers; 16.1.3 Contractor's failure to act in a timely manner to remove any mechanic's liens filed by Subcontractors or Vendors of any tier, notwithstanding that a dispute may exist with respect to the extent of timely progress payments by Owner; 16.1.4 At Owner's sole discretion, if Owner deems that the Contractor is insolvent; or 16.1.5 If Contractor makes an assignment for the benefit of creditors or is a party to a voluntary or involuntary bankruptcy proceeding. 16.2 Notice of Default. Prior to exercising its right to terminate this Agreement, Owner shall provide notice specifying the default to Contractor. The Contractor shall cure any default within five (5) days following receipt of written notice of default from Owner. If Contractor believes the nature of the default is such that it cannot be cured within such 5-day period, Contractor shall so notify Owner and specify the time period required to effectuate the cure within said 5-day period. Thereafter, Contractor shall commence and diligently continue effective action to correct such default, but shall cure such default in any event within the time period approved in writing by Owner after receipt of such notice from Contractor. In the event Owner does not accept a cure period of longer Short Form Fixed Price Agreement Page 10 January 2009 than such five (5) days and the Contractor does not remedy the default to Owner's satisfaction within such five (5) days, Owner may declare this Agreement terminated. Notwithstanding the foregoing, Owner may, in addition to any other of its remedies hereunder, withhold further payments to Contractor during the pendency of any such cure period. 16.3 Owner's Rights upon Default. In the event of any breach of this Agreement, Owner may (a) elect to stop any operations of Contractor until such default or failure is remedied (and no part of the lost time will be made the subject of a claim for extension of the Contract Time or in increase in the Contract Price for default), (b) terminate this Agreement and all or any portion of the Contractor's Work and (c) exercise all rights and remedies available to it at law or in equity. If all or a portion of the Contractor's Work is terminated, Contractor shall not be entitled to receive any progress payment until after Final Completion by others and after Owner has assessed its additional costs and damages arising out of such termination, including but not limited to Owner's additional costs for completing all of the relevant portion of the Work. If Owner's costs to achieve Final Completion of the Work are in excess of the Contract Price, Contractor shall pay Owner for all costs in excess of the Contract Price, plus reimbursement for all of Owner's additional costs for remedial design services, managerial and administrative services, attorneys' fees and court costs arising out of such termination. Upon such termination, Contractor shall immediately undertake all necessary steps to mitigate against Owner's damages, including but not limited to the following: 16.3.1 Cease operations and vacate the Site to the extent specified in the notice of termination; 16.3.2 Place no further orders and enter into no further subcontracts or purchase orders for materials, labor, services or facilities that relate to the terminated Work; 16.3.3 Upon Owner's request, terminate all subcontracts and purchase orders which relate to the terminated Work or, at Owner's direction, assign all of Contractor's right, title and interest to all subcontracts, purchase orders, rental agreements, materials, supplies and equipment using forms satisfactory to Owner and otherwise assist Owner in the orderly and expeditious transfer of such rights; 16.3.4 Turn over to Owner the originals of all Drawings, Specifications and other Contract Documents; all as-built drawings, calculations and such other Work-related documents which may be needed to facilitate completion of the Work by others; 16.3.5 Proceed to complete the performance of all Work not terminated; 16.3.6 Take such actions that may be necessary, or that Owner may direct, for the protection and preservation of the terminated Work; 16.3.7 Advise Owner of all outstanding subcontracts, rental agreements and purchase orders which Contractor has with others pertaining to the terminated Work and furnish copies thereof, and 16.3.8 Remove all of its property from Owner's premises. Any property not so removed may be removed by Owner at Contractor's expense. 16.4 Suspension of Work. Owner shall have the right by written notice to suspend all or a portion of the Work during the course of this Agreement. In the event of a suspension by Owner, Owner shall promptly pay Contractor for that portion of its Work which was satisfactorily performed prior to the date of Owner's notice plus an additional amount for reasonable, unavoidable and direct costs of demobilization during a maximum period of ten (10) calendar days after the date of such suspension. Owner shall have no further liability to Contractor for further compensation whatsoever, including delay-related expenses of any description, costs for general conditions or profit fees, including but not limited to anticipated profits on unperformed Work. 16.5 Termination by Owner for Convenience. This Agreement may also be terminated by Owner solely for Owner's convenience upon ten (10) calendar days written notice, without regard to any fault by Contractor or any other party. In the event of a termination for convenience, Contractor shall be paid for all Work satisfactorily performed up to the date of such notice, plus an additional amount for reasonable, unavoidable and direct costs of demobilization during a maximum period of ten (10) calendar days after the effective date of such termination. Short Form Fixed Price Agreement Paget 1 January 2009 Owner shall have no further liability to Contractor for compensation, expenses, or fees and no amount shall be payable for anticipated profits or unperformed Work. 16.6 Termination by Contractor. The Contractor shall have the right, after thirty (30) calendar days written notice to Owner, to terminate this Agreement: (a) in the event the Work is stopped or suspended for a period of sixty (60) days by an order of any court or other public authority having jurisdiction, or otherwise through no act or fault on the part of the Contractor, its Subcontractors or Vendors of any tier, or (b) if Owner fails to pay Contractor any approved payment amounts which are not subject to dispute within thirty (30) days after such payment is past due; provided, however, that the Contractor shall not be entitled to terminate this Agreement if the basis for termination is cured within such thirty (30) day period. In the event of termination by Contractor pursuant to this Section 16.6, Owner shall pay Contractor (a) an amount equivalent to the portion of the Contract Price earned by the Contractor, plus the amount of retention held by Owner for Work satisfactorily performed prior to the effective date of termination and (b) other reasonable and unavoidable costs which are directly related to or arise out of the termination of the Work. 17. CLAIMS. 17.1 Claim Submittal Requirements. If Contractor makes a claim under Section 15 of this Agreement, Contractor shall have the burden of establishing entitlement to any increases in the Contract Price and/or Contract Time by making timely submittal of all documentation required in this Article 17. Contractor must submit all such documents not later than twenty (20) calendar days after the date of the relevant notice of Claim. 17.2 Resolution of Contract Price Claims. Within twenty (20) calendar days after the date of Contractor's timely notice of Claim as required pursuant to Section 15 above, Contractor shall substantiate its Claim for a change in the Contract Price by preparing and submitting to Owner an itemized and comprehensive accounting with supporting documents of the Contractor's proposed extra costs, or any cost savings, attributable to each proposed, pending or disputed Change. 17.3 Resolution of Contract Time Claims. Within twenty (20) calendar days after the date of Contractor's timely notice of Claim as required pursuant to Section 15 above, Contractor shall substantiate its Claim for a Change in Contract Time with a critical path method delay analysis and all other documentation reasonably required by Owner. All such documentation shall be subject to verification by Owner including verification by audit of Contractor's books and records pertaining to the Claim. The delay analysis shall include a presentation of written cause and effect narratives which identify each critical path activity by: (a) activity number; (b) the specific calendar dates when the critical path delay occurred; (c) the cause of such delay; and (d) the specific contractual provisions being relied upon by the Contractor to establish Owners responsibility for each proposed, pending or disputed change in the Contract Time. 17.4 Unresolved Claims. Any Claims or disputes arising out of this Agreement which are not resolved by the parties after Contractors full compliance with the provisions of the Contract Documents shall be set aside pending completion of the Work or earlier termination of this Agreement. Contractor shall identify any such Claims which remain unresolved as "Unresolved Claims" in Contractors Application For Final Payment pursuant to Schedule 1, Part B of this Agreement. Contractor may then seek a resolution in accordance with Section 17.5 below. 17.5 Judicial Determinations. All Unresolved Claims, disputes and other matters in question between the parties arising out of the Contract Documents including the breach thereof shall not be submitted to arbitration, but, if not disposed of in accordance with the terms of the Contract Documents, shall first be submitted to mediation pursuant to Section 15.7 above and then be submitted for final determination to the courts of the State where the Project is located (which venue Contractor agrees is proper venue for the determination of Unresolved Claims) for final determination by such court (a "Judicial Determination"). No such action for a Judicial Determination shall be brought by Contractor until the completion of all Work required by the Contract Documents or earlier termination of the Contract. Full compliance with the Contract Documents shall be a condition precedent to Contractors right to pursue a Judicial Determination to resolve its Claims. Short Form Fixed Price Agreement Page 12 January 2009 18. COMPLIANCE WITH-LAWS. LICENSES AND REGULATIONS. Contractor shall comply with, give all notices, file all reports and obtain all permits required by federal, state and local laws, ordinances, rules, regulations and lawful orders of public authorities applicable to Contractor's performance of the Work. 19. INDEPENDENT CONTRACTOR While Contractor is required to perform the Work in strict accordance with the Contract Documents, Contractor shall at all times be an independent Contractor and shall be solely responsible for and have control over subcontractors and vendors of every tier, all procurement, construction means, methods, techniques, sequences and procedures for constructing, coordinating and scheduling all portions of the Work to achieve the requirements of the Contract Documents. Nothing in the Contract Documents shall be deemed to imply or represent that Contractor, its supervisors, employees, subcontractors or vendors of any tier are the agents, representatives or employees of Owner. 20. LIENS All Work, materials and equipment provided by Contractor and its Subcontractors of any tier shall be free and clear of all mechanic's liens, claims, security interests or encumbrances whatsoever. In the event any such liens arising out of the Project are filed on the Site, or any other premises of the Owner Parties, Contractor hereby agrees to Indemnify, defend and hold each of the Owner Parties harmless from and against any and all liability, costs, expenses, losses and all damage relating to the filing, removal or payment of such liens. 21. HAZARDOUS MATERIALS. The Contractor agrees not to use any materials to be incorporated into the Work that are hazardous, toxic, or made up of any items that are hazardous or toxic or that constitute a hazardous material. Unless otherwise provided in Exhibit A, Contractor and its subcontractors of any tier shall have no responsibility for the discovery, presence, handling, removal or disposal of hazardous materials on Owner's premises, including asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic substances. If the Contractor encounters a hazardous material, and if reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a hazardous material encountered on the Site by the Contractor, the Contractor shall immediately stop Work in the affected area and promptly report to Owner, in writing, the presence and location of any hazardous material which it discovers at the Site. Contractor shall be responsible for identification, abatement, cleanup, control, removal, remediation and/or disposal of any hazardous material in or on the Site brought to the Site by the Contractor or any subcontractor, sub-subcontractor, supplier or materialman under this Agreement (other than those required by the Contract Documents). Contractor shall obtain any and all permits necessary for the legal and proper handling, transportation, and disposal of such hazardous materials. 22. OWNERSHIP AND USE OF PROJECT DOCUMENTS. Neither the Contractor nor any subcontractor, sub-subcontractor or material or equipment supplier shall own or claim a copyright in the Drawings, Specifications and other documents prepared for the Project, and, unless otherwise indicated, the Owner shall be deemed the owner of them and will retain all common law, statutory and other reserved rights, in addition to the copyright. The Drawings, Specifications and other documents prepared for the Project, and copies thereof furnished to the Contractor, are for use solely with respect to this Project. They are not to be used by the Contractor or any subcontractor, sub-subcontractor or material or equipment supplier on other projects or for additions to this Project outside the scope of the Work without the specific written consent of the Owner. The Contractor, subcontractors, sub-subcontractors and material or equipment suppliers are granted a limited license to use and reproduce applicable portions of the Drawings, Specifications and other documents prepared for the Project and owned by the Owner appropriate to and for use in the execution of their Work under the Contract Documents. All copies made under this license shall bear the statutory copyright notice, if any, shown on the Drawings, Specifications and other documents prepared for the Project and owned by the Owner. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this project is not to be construed as publication in derogation of the Owner's copyright or other reserved rights. Contractor shall promptly furnish Owner with the original of all the drawings which are produced during the course Short Form Fixed Price Agreement Page 13 January 2009 Of the Work. Upon completion of the Work or any earlier termination of this Agreement, Contractor shall promptly furnish Owner with one (1) complete set of reproducible record prints which shall incorporate all "as-built" variations and conditions. 23. MISCELLANEOUS. 23.1 Notices. All notices relating to termination, cancellation for convenience, suspension or material breach shall be sent to the parties at the addresses stated next to the parties' signatures below, by registered or certified mail. All other notices may be sent by regular mail. Notice by facsimile transmissions shall be effective upon receipt, but must be confirmed by registered, certified or regular mail, as is appropriate to the type of notice. Either party hereto may specify to the other party a different address for the giving of notices. 23.2 Governing Law; Venue. This Agreement and any and all disputes, claims or disagreements relating to or arising out of this Agreement, shall be governed by the laws of the state of where the Project is located. 23.3 Enforceability. The validity or enforceability of any provision of this Agreement shall not impair or affect in any manner whatsoever the validity or enforceability of the other provisions of this Agreement. In the event that any such provision is determined to be unenforceable or void, the remainder of this Agreement shall be fully binding with the same force and effect as though the unenforceable or void provision was omitted. 23.4 Entirety of Agreement; Modifications. This Agreement contains the full and complete understanding of the parties pertaining to the Work and supersedes any and all prior representations, negotiations, agreements or understandings between the parties, whether written or oral. This Agreement may not be modified except by a subsequent writing executed by both parties. 22.5 Assignment. The Owner and Contractor, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither the Owner nor the Contractor shall assign this Agreement without the written consent of the other, except that the Owner may assign this Agreement to a partner or an affiliate or an institutional lender providing financing for the Project. The Contractor shall execute all consents reasonably required to facilitate assignment by the Owner. 22.6 Waiver. No waiver of any provision of this Agreement shall be of any force or effect, unless such waiver is in writing, expressly stating to be a waiver of a specified provision of this Agreement and is signed by the party to be bound thereby. Either party's waiver of any breach or failure to enforce any of the provisions of this Agreement at any time, shall not in any way limit or waive that party's right thereafter to enforce or compel strict compliance with this Agreement or any portion or provision or right under this Agreement. 24. OTHER TERMS Base bid per Kinsley Proposal dated 5/8109 (without Alternates or requested Changes) is $1,810,927 Added cost to match plans dated 7114/09 and approved changes as of 8106109 per Exhibit A-2 is $164.83 8 Contract total is $1,975,765 Short Form Fixed Price Agreement Page 14 January 2009 The parties hereby execute this Agreement by their respective duly authorized representatives as of the Effective Date hereof. OWNER LIT Industrial Limited Partnership By: SEE ATTACHED Printed Name: John M. Clinton Title: Development Manager Vice-President Date: CONTRACTOR KINSLEY =TION, By: Prin d Name: Jonathan R. Kinsley Ti : President Date: OE?/A-of Owner's Address: 2650 Cedar Springs Road, Suite 850 Dallas, Texas 75201-1491 Fax #: (214) 647-4901 Short Fonn Fixed Price Agreement January 2009 Contractor's Address: 2700 Water Street York, Pennsylvania 17403 Fax #: (717) 741-8426 Page 15 EXHIBIT B EXHIBIT A SCOPE OF WORK Scope of Work. Except as otherwise expressly provided herein, Contractor shall provide all necessary design, engineering, construction and construction management services, all supervision, labor, materials, equipment, building permits, barricades, safety programs and related requirements, including each and every item of expense necessary to satisfactorily complete the following: (a). Exhibit A-1 - Work is defined only by Kinsley proposal dated May 8'h, 2009. (b). Base bid Exhibit A-1 includes a value of $94,276.00 for the construction of a 19,980 sf Aerosol Cage. Aerosol cage is not included in the permit plans at this time and added cost is not approved at this time. (c}. Exhibit A-2 Is a list for Approved changes by Exel, dated 8113109, Revision 9, totaling $164,838 labeled "Schedule 1-A Exhibit B and Construction Contract Exhibit A-2". (d). Exhibit A-3, List of drawings 2. Additional Insurance- In addition to the insurance required by Article 14, Contractor shall provide the following insurance: Short Form Fixed Price Agreement January 2009 Exhibit A -Page 1 EXHIBIT A•? IIISLV??;' COt,STRUCTION t, May 8, 2009 Ms. Jennifer Bowlby ING Clarion Partners - Dallas 2650 Cedar Springs Road Suite 850 Dallas, TX 75201-1491 Re: CDC3 Tenant Improvement Dear Ms. Bowlby, Kinsley Construction, Inc, is pleased to provide pricing for the tenant improvement occurring at 70 Logistics Drive located in Carlisle, PA based on the following: Kinsley Construction, Inc. Scope of Work dated May 8, 2009. 4 Kinsley Construction, inc. Qualifications dated May 8, 2009. y Kinsley Construction, Inc. Alternates dated May 8, 2009 We propose to complete this project for a lump sum price of One Million Eight Hundred Ten Thousand Nine Hundred Twenty Seven Dollars ($1,810,927.00) The above prices are valid for 30 days. if you should have any questions or concerns, please feel free to contact me direct at (717)-741-8329. We look forward to working with you on this project. Sincerely, i Dav)d Benoist Project Engineer -?700 Vdoter 5!'eef F.O. Sex ?H88 fork, ':? 17405 • (717) 741-3X41 • ; a.: 17 171 ?al •9G ? SCOPE OF WORK E_tel - ING CLARION Carlisle Distribution Center 3 Tenant Improvement Carlisle, PA Af .v 8, 2009 GENERAL CONDITIONS > Provide full time on-site supervision, > Provide building layout. > Mobilization of all equipment and material on and off the site. > Final clean up of the building. > Weekly clean up for an orderly and safe job site. > Remove debris from the job site. > Provide design by LSC Design, DESIGN & ENGINEERING SITEMIORK > Site Improvements > Provide (2,855 LF) of 6' High galvanized chain link site perimeter fence with barbed wire, > Provide (2 EA) Manual gates > Provide (1 EA) Motorized gate at main entrance with empty conduit to shipping/receiving office. BATTERY CHARGING > Provide acid proof epoxy flooring for area noted on attached drawing A102. > Provide hose bib in this area. > Provide Hydrogen sensing fan within this area at the roof for ventilation, MISCELLANEOUS METALS > Provide bolt down guard rail to protect the main office, satellite restrooms and maintenance area. > Provide angle for cut in dock pits DOORS & WINDOWS > Provide Interior doors for access to Main office, Shipping/Receiving office, and Maintenance area as per the attached drawings dated 4/28/09. 7 Provide fixed frame windows at each private office and Shipping/Receiving office as per the attached drawings dated 4/28/09. > Provide Pass-thru receptionist window at Shipping/Receiving office. CCNII_;TrOCTl0KA I. ' pap t SCOPE OF WORK ING-CL ARION PROPOSED CDCJ TEMANT IMPROV-0f "NT C4RLISLE, PA Ul )' 8, 2009 FINISHES > Provide fence enclosures for truck drivers with unisex restroom as per the attached drawings dated 4/28/09. > Provide Gypsum wallboard and metal stud framing for the main office area aad satellite restroorns as per the attached drawings dated 4/28/09. > Provide painting all guard rail and bollards. > Provide painting of all interior egress doors with a tenant approved red color. > Provide painting of all interior gypsum wall board on office interior. MECHANICAL > Provide 50 Genisys Mechanical Dock Levelors > Provide 49 Mechanical Edge of Dock Levelors Provide 99 Genisys Dock Seats Provide Dock receptacles at dock doors PLUNIBING 1. Furnish and install the followiug•pluinbing fixtures: Main Office Area; Provide all fixtures as per the attached drawings dated 4/28/09. Toilet #121: Provide all fixtures as per the attached drawings dated 4/28/09. Toilet #120: (Typ for two (2) applications) 0 water closet, tank type, floor mounted, ADA_ 0 urinal, wall hung, ADA height lavatory, wall hung, ADA. instantaneous electric water heater. Maintenance Shop #123: Laundry sink, wall hung. Electric water coolers. 0 Floor drains in Toilet Rooms. 2, Furnish and install the following items in the Battery Charging/Scrubber Dump Station Area: 0 One (1) emergency shower/eyewash station. u Mixing valve to provide "tepid" water for the emergency shower/eyewash station. 0 %z" hose bibb - Battery Charging Area. 0 FIot/eold water mixing station with threaded outlet - Scrubber Dump Station Area. 0 4" floor drain - emergency shower/eyewash station. c 4" hub drain- Scrubber Dump Station Area. 0 One (1) 250-gallon pre-cast grease/oil interceptor. 3. Furnish and install underground sanitary waste systems: 0 Schedule 40, PVC sanitary waste piping. 4. Furnish and install aboveground sanitary waste/vent piping systems: 0 Schedule 40 PVCI?{Q9]sssaniitarywaste/vent piping. CONSTRUCTION ? t r,gc 2 SCOPE OF rl'ORK ING-CLAR ION PROPOSED CDC3 TEA'ANTIMPROME-AfFAIT CULISLE, PA May S, 2009 5. Furnish and install aboveground pumped sanitary waste systems: Schedule S0, PVC sanitary waste piping installed at the roof steel. Connections to the underground sanitary waste system. Pipe identification. 6. Furnish and install a domestic water distribution piping system: CPVC domestic water piping. Isolation valves. ''/? closed cell foam insulation. Connections to the existing cold water distribution system at the roof steel. 0 Pipe identification. 14VAC MALN OFFICE AREA I . Furnish and install one (1) gas tired, packaged rooftop unit. Roof curb. Programmable thermostatllow voltage control wiring. 2. Fumish and install a natural gas distribution system (water heater and packaged rooftop unit): 3. Furnish and install an air distribution system: Ceiling mounted supply air diffusers/return air grilles. Galvanized sheetmetal supply/return air ducts with 1/2" fiberglass duct liner. Volume dampers. 4, Furnish and install a toilet exhaust system. Roof mounted exhaust fan. Ceiling mounted exhaust grilles. Galvanized sheetmetal exhaust duct. 5. Furnish and install a through the wall cooling only unit to provide dedicated air conditioning in die IT Room C Nominal 12,000-btu cooling capacity. 6. Furnish and install miscellaneous electric heat, Electric baseboard Kull insert heaters TOILET ROOMS (TYP FOR THREE (3): 1 Furnish and install Toilet Room exhaust systems. Ceiling exhaust fans. Nall caps with baekdraft dampers. Miscellaneous galvanized sheetmetal exhaust duct. 2. Furnish and install electric baseboard heat with integral thermostat. OFFICE #122: KIRSLE; CONSTRUCTION Page 3 SCOPE OF WORK /A-G-CLARION PROPOSED CDC3 TENANTIMPROVEUENT CARLISLE, PA Map 8, 2009 1. Furnish and install one (1) through the wall heating/cooling unit. c Nominal 7,000-btu cooling capacity BATTERY CHARGINQ AREA I . Furnish and install one (1) roof mounted exhaust fan. 5,000-cfm capacity at.5" s.p. 1'/2 hp, 460/30 motor - explosion proof single speed. Disconnect. Roof curb. Epoxy coating. Hydrogen detector/low voltage control wiring. Furnish and install an exhaust duct system. Galvanized sheetmetal exhaust ducts. Two (2) 12"0 inlets near the roof deck with volume dampers to collect hydrogen gases. Two (2) 14x 10 drops to 12" above the floor with volume dampers to connect sulfur fumes. ELECTRICAL D Provide the following; Scope for Electric work for Offices o Conduit, wire, hangers, etc., for 225A 480V 30 Service to be fed from 2000A Sw Gear @ L12 - North Side o Breaker for panel in Main Sw Gear 225A 480V Panelboard w/ breakers, 75KVA Transformer 480V to 120/208V, 200A MB Panelboard 120208V w/ breakers for office circuits Fluorescent Lighting as necessary for Office Areas - includes 2x4 Recessed, Compact Fluorescent Rceessed(for Drywall Ceilings), Exits Signs, Emergency Lighting Includes Pull Switches for all office Lighting Includes 120V Receptacles as necessary for office areas - all as requested have been included o Includes Empty Conduit & Box system for DatwTelephone Includes hookups for HVAC equipment - Heat to be Gas Fed Includes hookups for H1WH's o Includes Rougb-ins for Card Access, Door Intercoms, and Door Hardware as requested Includes stamped drawings Scope for Electric work for Gate Conduit, wire, etc., for hoolvps to Gate (480V 30) and for Cameras, etc. (120V) Breakers in panel at L12 for these items Includes portion of trenching and back-fill for Conduits from building out to gate area Includes portion of blacktop cutting and patching for gate work Scope for Conduits for Gate KONSLEOV50[l CONSTRUCTION rag--4 SCOPE OF TVORK l.vc-Ci +RION PROPOSED CDC3 TEN.4A'-T1.VP1i0l/EVE.N'T CARLISLE, P.d h9ati S, 1009 Includes Conduits from office area to gate area Includes Pullstring in Conduits Includes portion of trenching and backftll for Conduits from building out to gate area Includes portion of blacktop cutting and patching for gate work Scope of Electric work for Docks a Includes conduit, wire, boxes, covers, receptacles to add 120V Receptacle at each dock door for Dock Lights Includes panelboards, transformers, breakers as necessary Includes installing all dock lights Scone of Electric Work for Batten r Charee Area Includes 400A 480V 30 Double Panelboard to feed ebargfng area Includes conduit, wire, supports, fasteners to install panel and hookup 25 chargers Includes cord, cord cap, and receptacles for each charger Includes hookup for Ex Fan for this area Includes work at Maintenance Shop, Office, and toilet for this area (all lighting, receptacles, switches, conduits for Data/Tele) o includes stamped drawings Scope for Fire Alarm Uperades Includes Fire Alarm upgrades for office areas as necessary Includes integration of new items into system Sconc of work - Warehouse Lizhtinff-to_30FC Includes 700 new High Bay fixtures - Includes 10' flex 'Aire tail on each fixture as requested - includes motion sensor on each light, also includes wire guard as requested Includes Flex Wire system for all fixtures Includes conduit, wire, boxes, as necessary for working system in ceiling o Includes panelboard in center back of building for light circuits on the west side of building o Includes 300A 480V 30 conduit system from Main Service a1 L12 to panelboard at bark of building as described above Includes breaker in Main Sw Gear to run this panelboard Includes new breakers in existing panelboards in front of building to feed east side lights Includes lights for Aerosol Storage area in numbers above, - We will use a recessed style of fluorescent light w/ shatter resistant lamps but the price will be the same Includes moving and rewiring existing lights as necessary to meet 30FC Scope of work - Electric to Trash Compactor Y Includes conduit, wire, disconnect for 60A 480V 30 line to Trash Compactor Scope of work -Electric to Sat Restrooms Includes conduit, wire, boxes, etc., for electric hookups to two satellite bathroom areas 4 Includes Fan/Light in ceilings Includes wall switches Includes GFI receptacle in each Includes hookup for small electric heater ASA L wftmi K N + CCGNS T RUCT[ON Pace 5 EXHIBIT C AR Aged Analysis By Customer and Contract Age On : Due Date Through Month: 11109 Aging Date. 11117109 Include Invoices Through: All Dates . Other Trans Through: 11117109 Receivable Types: All Deduct Discounts? N Contract : 71307- EXEL ROYER LOT 4 29875 08/30/09 JB App #18 161,285.01 161,285.01 29875 08/30/09 Released Retainag 105,950.06 105,950.06 30057 09130/09 JB App #19 15,406,01 15,406.01 30057 09130/09 Released Retainag 251,829.06 251,829.06 Total For Contract: 71307- 534,470.14 0.00 0.00 267,235.07 267,235.07 0.00 0.00 Total Aged +Retain: 534,470.14 Contract : 91094- EXEL - ENERGIZER 29862 08/30109 J8 App #1 425,184.12 425,184.12 30039 09/30109 J8 App #2 425,184.12 425,184.12 30117 09/30/09 J8 App #1 1,062,288.40 1,062,288.40 30671 11/30109 JB App #2 655,645.99 655,645.99 30671 11/30/09 Released Retainag 190,881.61 190,881.61 105047 10/30/09 5,911.00 5,911.00 Total For Contract: 91094- 846,527.60 5,911.00 637,104.28 425,184.12 0.00 0.00 Total Aged +Retain: 1,914,727.00 Total For Customer. 5900 2,449,197.14 Total Aged +Retain: 2,449,197.14 0.00 Total For Company: 10 2,449,197.14 846,527.60 5,911.00 904,339.35 692,419.19 0.00 0.00 Total Aged +Retain: 2,449,197.14 l? 7o? ? Note: • Indicates partial payments for the Invoice. 10 KINSLEY CONSTRUCTION INC. Page 1 Date Format - MM/DD/YY 11/17/09 12:18:57 PM ARAgeNewCustCont.rpt Invoice DueDate Total Aged Future Current 31-60 61-90 Over 90 Retainage EXHIBIT D 4-/s-(? PREPARED BY: Squire, Sanders and Dempsey L.L.P. 41 South High Street Suite 1300 Columbus, Ohio 43215 Attn: H. Cort Doughty, Esq. RECORD AND RETURN TO: RETURN TO: Chicago Title Insurance Co. 1601 Market Street, Ste. #2550 Philadelphia, PA 19103 8`t6 1--00 35-5-00 Tax Parcel No. (Being a portion of Tax Map No. 40-08-0579, Parcel 008) SPECIAL WARRANTY DEED COMMONWEALTH OF PENNSYLVANIA § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF CUMBERLAND § EXEL INC., a Massachusetts corporation formerly known as Exel Logistics, Inc. ("Grantor'), for an in consideration of the sum of $5,227,287.00 and other good and valuable consideration, unto LIT INDUSTRIAL LIMITED PARTNERSHIP, a Delaware limited partnership, whose tax mailing address is Clarion/ING Lion Industrial Trust, 3141 Hood Street, Suite 700, Dallas, TX 75219 ("Grantee'), well and truly paid by the said Grantee, at or before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, has granted, bargained and sold, released and confirmed, and by these presents does grant, bargain, sell, release and confirm unto the said Grantee its successors and assigns, as partnership property for the uses and purposes of said partnership, the real property located in Cumberland County, Pennsylvania, fully described in Exhibit A hereto, together with all and singular the improvements, ways, streets, alleys, driveways, passages, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances, whatsoever unto the hereby granted premises belonging, or in any wise appertaining, and the reversions and remainders, rents issues, and profits thereof; and all the estate, right, title, interest, property, claim and demand whatsoever of the Grantor, as well at law as in equity, of, in, and to the same (collectively, the "Property'). This Special Warranty Deed and the conveyance hereinabove set forth is executed by Grantor and accepted by Grantee subject to the matters described in Exhibit B hereto (collectively, the "Permitted Encumbrances'). COLUMBUS/601583.1 016348.00273 r, EXHIBIT A LEGAL DESCRIPTION ALL THAT CERTAIN tract of land situate north of US Interstate Route 81 and south of Logistics Drive, in South Middleton Township, Cumberland County, Pennsylvania, and comprising Lot 4 as shown on the "Revised Final Subdivision And Land Development Plan For Exel, Inc. - Royer Tract Lot-3 and Lot-4", as prepared by Herbert, Rowland, and Crrnbic, Inc., Project No. 3456.006, dated October 25, 2007, last revised November 30, 2007; said tract being more fully bounded and described as follows: BEGINNING at a point on the southern right-of-way line of Logistics Drive (60 foot wide right- of-way) at the line dividing Lot 3 and Lot 4 of the Exel Subdivision; THENCE by said right-of- way line North 64 degrees 17 minutes 00 seconds East, a distance of 355.00 feet; THENCE continuing by a line on a curve to the right having a radius of 270.00 feet, an arc length of 424.12 feet, and a chord bearing of South 70 degrees 43 minutes 00 seconds East, a distance of 381.84 feet to a point on the southwest right-of-way line of Logistics Drive, THENCE by said line South 25 degrees 43 minutes 00 seconds East, a distance of 1441.54 feet; THENCE continuing by a line on a curve to the right having a radius of 25.00 feet, an arc length of 23.83 feet, and a chord bearing of South 01 degree 35 minutes 43 seconds West, a distance of 22.94 feet; THENCE continuing by a line on a curve to the left having a radius of 70.00 feet, an are length of 176.69 feet, and a chord bearing of South 43 degrees 24 minutes 16 seconds East, a distance of 133.38 feet to a point in an emergency access road; THENCE passing through said road South 25 degrees 43 minutes 00 seconds East, a distance of 388.94 feet to a point on the northern right-of- way line of US Interstate Route 81; THENCE by said line South 86 degrees 57 minutes 00 seconds West, a distance of 1092.43 feet to lands of Robert M. Frey; THENCE by lands of Frey North 30 degrees 10 minutes 00 seconds West, a distance of 609.07 feet to Lot 3 of the Exel Subdivision; THENCE by said line the following four (4) courses and distances: (1) North 66 degrees 45 minutes 00 seconds East, a distance of 90.39 feet; (2) THENCE North 25 degrees 43 minutes 00 seconds West, a distance of 779.61 feet; (3) THENCE North 64 degrees 17 minutes 00 seconds East, a distance of 310.00 feet; (4) THENCE North 25 degrees 43 minutes 00 seconds West, a distance of 444.00 feet to a point on the southern right-of-way line of Logistics Drive, the POINT OF BEGINNING. Containing 1,802,864 Square Feet or 41.3881 Acres COLUMBUS/601583.1 016348.00273 EXHIBIT B PERMITTED ENCUMBRANCES Possible additional assessment for taxes on any new construction or major improvements to premises. 2. Taxes and assessments not yet due and payable. 3. Rights granted to Pennsylvania Power and Light Company as more fully set forth in Miscellaneous Book 228, Page 875. 4. Right of Way Grant to UGI Utilities, Inc. as set forth in Miscellaneous Book 737, Page 2775. Conditions if any, in Plan Book 94, page 40, as superseded by conditions, if any in that Revised Final Subdivision and Land Development plan for Exel Inc. filed in the Office of Recorder of Deeds, Cumberland County, Pennsylvania as Instrument No. 200746577. 6. Covenants, conditions and easements as set forth in that certain Declaration of Covenants and Restrictions For Phase I of South Middleton Distribution Center, dated and recorded simultaneously herewith in the Office of Recorder of Deeds, Cumberland County, Pennsylvania. 7. Terms and conditions as set forth in that certain Encroachment Agreement by and between PPL Electric Utilities Corporation, a Pennsylvania corporation, and Exel Inc., a Massachusetts corporation, dated and recorded simultaneously herewith in the Office of Recorder of Deeds, Cumberland County, Pennsylvania. COU MBUS/60I583.1 016348.00273 To have and to hold the said Property unto the said Grantee, its successors and assigns, and for the only proper use and behalf of the said Grantee, its successors and assigns, forever, for the uses and purposes of Grantee. AND, the said Grantor, for itself and its successors, does hereby covenant to and with the said Grantee, its successors and assigns, by these presents, that it, the said Grantor, is successors and assigns, SHALL AND WILL Warrant and forever defend the Property, with the hereditaments and appurtenances, unto the said Grantee, its successors and assigns, against the said Grantor and its successors and against every other person lawfully claiming or who shall hereafter claim the same or any part thereof, by, from or under it, them, or any of them. IN WITNESS WHEREOF, the said Grantor has caused these presents to be duly executed, this day of December, 2007. SEALED AND DELIVERED, In the presence of us. Attest: STATE OF OHIO COUNTY OF DELAWARE This instrument was acknowledged before me on December /f, 2007, by the 0- E5 A nmer, CCt of Exel Inc., a Massachusetts Kof said corporation. Sl?LEY S14ETNAM * ? ? 10 0-1u Notary Public Wes--k r vi tit , d 9 of ' Grantee's address is: 3141 Hood Street, Suite #700, Dallas, T% 75219 On Behalf of Grantee COLUMBUS/601583.1 016348.00273 EXEL By: A4?ala-ZF- ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 200747518 Recorded On 12/27!2007 At 12:08:52 PM * Instrument Type - DEED Invoice Number -11458 User ID - KW * Grantor - EXEL INC * Grantee - LIT INDUSTRIAL L P * Customer - CHICAGO TITLE INSURANCE CO * FEES STATE TRANSFER TAX STATE WRIT TAX STATE JCS/ACCESS T JUSTICE RECORDING FEES - RECORDER OF DEEDS AFFORDABLE HOUSING COUNTY ARCHIVES FE ROD ARCHIVES FEE SOUTH MIDDLETON SCHOOL DISTRICT SOUTH MIDDLETON TOWNSHIP TOTAL PAID $52,272.87 $0.50 O $10.00 $11.50 $11.50 E $2.00 $3.00 $26,136.44 $26,136.43 $104,584.24 * Total Pages - 5 Certification Page DO NOT DETACH 'This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA Of ??/0 RECORDER O D EDS * - Information denoted by an asterisk may change during the verification process and may not be reflected on this page. IIVNl?IINVnI CIS t ?TAP Y i Ct1t..' ? I!, o o f Y a 3 gY31 FILED-~i`'rl4;L ~'~ ^lr?TA~? 2010 ~~;~ - 9 F~ i 12~ S 8 _ ~ ~~}, ~'~~~. @ ~~ssL.s3 ~" a3 431.`3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KINSLEY CONSTRUCTION, INC., Mechanics' Lien Claim Claimant v. No. 09-8338 Civil LIT INDUSTRIAL LIMITED PARTNERSHIP Owner PRAECIPE TO REMOVE To the Prothonotary: Please mark the above captioned Mechanics' Lien Claim settled and satisfied. BARLEY SNYDER By: Paul W. 100 Ea t Market Street P.O. Box 15012 York, PA 17405-7012 717-846-8888 Fax: 717-843-8492 E-Mail: pminnich@barley.com PA 74453 Attorneys for Claimant 2838174 CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing Praecipe to Remove is being served by first class mail, postage prepaid at York, Pennsylvania, addressed as follows: LIT Industrial Limited Partnership 2650 Cedar Springs Road, Suite 850 Dallas, TX 75201-1491 BARLEY SNYDER L By: Paul ich 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717-846-8888 Fax: 717-843-8492 E-Mail: pminnich@barley.com PA 74453 Attorneys for Claimant ~ti' ~y~v