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Home My WebLink About05-4564 Of; - 0<; ~ &'If (i?L.O ~ER.~ CHICAGO TITLE INSURANCE COMPANY 1601 MARKET STREET SUITE 2550 PHILADELPHIA. PA 19103 ("'05-"0 <N,,(g/T) WAIVER OF LIENS - CONTRACTOR KNOW ALL MEN BY THESE PRESENTS, That contemporaneously with the execution hereof, an agreement for construction services (the "Agreement'1 has been entered into between LIT INDUSTRIAL LIMITED PARTNERSHIP, a Delaware limited partnership, 3141 Hood Street, Suite 700, Dallas, TX 75219 ("Owner"), AND KINSLEY CONSTRUCTION, INC., a pennsylvania corporation with a principal place of business at 2700 Water Street, York, PA 17405 ("Contractor'1, relating to the planning and construction of a certain new 800,000 square foot distribution facility located at U.S. Rt. II (Ritner Highway) and Allen Road, Borough of Carlisle, Cumberland County, PA, as said property is more particularly described as "Lot No. 3A" in Exhibit A and depicted in Exhibit A-I attached hereto and made a part hereof (which, together with the building and improvements to be constructed thereon, the "Property"); and WHEREAS, in the Agreement, Contractor has covenanted, promised and agreed that no mechanics' or materialmen's lien or claims would be filed or maintained in or on the Property or any part thereof, either by itself or anyone else for or on account of any work, labor or materials furnished or supplied in the performance of the Agreement, or under any supplemental contract or for extra work in the future construction or improvements to the Property pursuant to any contract which may be executed between Owner and Contractor. NOW, THEREFORE, for and in consideration of the execution by the Owner of the Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Contractor, intending to be legally bound, hereby agrees as follows: L At the time of and immediately before the execution of the Agreement, and before any authority has been given by Owner to Contractor to commence work: on the Property, Contractor does hereby, for Contractor and any and all subcontractors, material suppliers and parties acting or claiming for, through or under Contractor, including, inter alia, any mechanical or electrical engineer, construction engineer or civil engineer, covenant and agree with Owner that no mechanics' liens or claims, notice of liens or notice of intention, shall be filed or maintained by Contractor, or any of them, against the Property, for or on account of any work done or materials furnished under the Agreement or under any supplemental contract, verbal or written, or contract for extra work in or about the planning, designing, construction and completion of the Property, or otherwise. Contractor, for Contractor and any and all subcontractors, material suppliers and parties acting or claiming through or under Contractor, including, inter alia, any mechanical or electrical engineer, construction engineer or civil engineer, hereby expressly waives and relinquishes the right to have, file or maintain any mechanics' liens or claims against the Property. 2. This Waiver waiving the right of lien shall be in an independent covenant of the Contractor and shall operate and be effective as well with respect to work done and materials furnished under any supplemental contract for extra work in the planning, designing, construction, construction administration, and completion of the Property. Columbus/444964.1 16348.00201 3. IN ORDER TO GIVE OWNER FULL POWER AND AUTHORl1Y TO PROTECT THE PROPERTY AGAINST ANY AND ALL MECHANICS' UENS OR CLAIMS FILED BY CONTRACTOR OR ANYONE ACTING OR CLAIMING FOR, TIlROUGH OR UNDER CONTRACTOR OR IN VIOLATION OF THE AGREEMENT OR TIllS WANER, CONTRACTOR, FOR ITSELF AND ALL SUBCONTRACTORS, MATERIAL SUPPLIERS AND PARTIES ACTING OR CLAIMING FOR, TIlROUGH OR UNDER CONTRACTOR, INCLUDING, INTER ALIA, ANY MECHANICAL OR ELECTRICAL ENGINEER, CONSTRUCI'lON ENGINEER OR CIVIL ENGINEER, HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY A TIORNEY OF ANY COURT OF COMMON PLEAS OF THE COMMONWEALTII OF PENNSYLVANIA OR ANY ATIORNEY OF ANY COURT OR JURISDICTION 1HERE OR ELSEWHERE, TO APPEAR IN ANY COURT OR JURISDICTION FOR CONTRACTOR, AND MARK SATISFIED OF RECORD, AT THE COST AND EXPENSE OF CONTRACTOR, OR ANY SUCH SUBCONTRACTOR, MATERIAL SUPPUERS OR PARTY INCLUDING, INTER ALIA, ANY MECHANICAL OR ELECTRICAL ENGINEER, CONSTRUCI'lON ENGINEER OR CIVll. ENGINEER, ANY AND ALL CLAIM OR CLAIMS, LIEN OR UENS FILED BY OR FOR CONTRACTOR, IN ITS OR THEIR NAME AGAINST THE PROPERTY OR ANY PART THEREOF, AND, FOR SUCH ACT OR ACTS TIllS SHALL BE A GOOD AND SUFFICIENT WARRANT AND AUmORlTY, AND A REFERENCE TO THE COURT, TERM AND NUMBER OR PLACE IN WHICH THE AGREEMENT AND 1lIIS WANER SHALL HAVE BEEN FILED SHALL BE SUFFICIENT EXHIBIT OF THE AUTHORITY HEREIN CONTAINED TO WARRANT SUCH ACTION; AND CONTRACTOR, FOR ITSELF AND ALL SUCH PARTIES, DOES HEREBY REMISE, RELEASE AND QUIT.CLAIM UNTO OWNER AND EACH OF THEIR ATIORNEYS ANY AND ALL MANNER OF ERRORS, DEFECTS AND IMPERFECI'lONS WHATSOEVER IN ENTERING SUCH SATISFACTION OR ANYWISE TOUCHING OR CONCERNING THE SAME. 4. The Contractor shall notify the Owner immediately if the Contractor becomes aware of the existence of any lien upon the Property. The Contractor shall also require each of its subcontractors and suppliers to execute a separate Waiver of Liens in form similar to this Waiver or otherwise acceptable to the Owner which shall relinquish any and all rights to have, file or maintain any mechanics' lien. 5. Should any lien attach to the Property by the Contractor or its subcontractors, suppliers, or anyone directly or indirectly employed by any of them, the Contractor shall cause the immediate removal thereof, and, if approved by the Owner, the Contractor shall remove such lien by obtaining and filing at its own expense a bond satisfactory in form and amount acceptable to the Owner and in accordance with all applicable legal requirements. The Contractor shall obtain and file such a bond within ten (10) days after the date on which such lien attaches to the Property. 6. The Contractor shall indemnify and hold the Owner and its successors and assigns harmless for any loss, claim, damage, or expense, including reasonable attorneys' fees and expense, arising from or related to liens which attach to the Property filed by the Contractor, any subcontractor or supplier of Contractor, or anyone directly or indirectly employed by any of them and by anyone for whose acts any of them may be liable. The Owner shall have the right to retain out of any payment then due or thereafter to become due to the Contractor an amount sufficient to completely reimburse and indemnify the Owner against expenses and losses resulting from such lien. Such expenses and losses shall include any attorneys' fees, surety bond premiums and other costs incurred in attempting to discharge or remove such lien, and any damages or other losses resulting from such lien, all of which the undersigned agrees to pay. If any payment then due to the undersigned by the Owner is not sufficient to reimburse and 2 Columbull444964.1 16348,00207 indemnify the Owner by way of off-set as aforesaid, the undersigned agrees to pay the amount of said difference to the Owner upon demand. 7. When the work under the Agreement is completed, the Contractor and its subcontractors shall furnish the Owner a complete release and waiver in a fonn acceptable to the Owner of all liens arising out of the Agreement. 8. IN THE EVENT ANY MECHANIC'S LIEN OR CLAIM IS FILED IN BREACH OF TInS WANER OF LIENS, THE CONTRACTOR HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY ACTION TO STRIKE OR DISCHARGE TIlE LIEN. 9. The Contractor hereby warrants and represents that at the time of execution hereof, no work of any kind has been done and no materials or supplies of any kind have been furnished in the performance of the Agreement or any supplemental contract for extra work in the erection, construction and completion of the work in connection with the Property. 10. The provisions of this Waiver of Liens are severable. Any provisions of this Waiver of Liens which shall be invalid, void or illegal shall in no way affect, impair or invalidate any other provision hereto, and the remaining provisions shall nevertheless remain in full force and effect. 11. This Waiver of Liens is made and intended to be filed with the County Prothonotary of Cumberland County, pennsylvania in accordance with the requirements of Section 1402 of the Pennsylvania Mechanics Lien Law of 1963, as amended. 12. It is expressly understood that this Waiver and all of the provisions and remedies herein contained shall be available to and for the protection of Owner and any fee title owner of the Property. 13. In the event Contractor consists of more than one person, firm or corporation, the undertakings hereunder of each of such persons, firms or corporations shall be joint and several, and the word "Contractor" shall mean all or some or any of them. For the purposes of the Agreement and this Waiver, the singular shall be deemed to include the plural, and the neuter shall be deemed to include the masculine and feminine, as the context may require. [remainder of page intentionally left blank] 3 Columbuol444964.\ 16348,00207 IN WITNESS WHEREOF, Contractor with intent to be legally bound hereby, has hereunto signed and sealed these presents this 1st. day of September, 2005. wrFNES-S (ATTESn 4LfU~ By: Jonathan R. Jerry L. Cas10w secretary/Treasurer Title: President COMMONWEALTH OF PENNSYLVANIA : COUNTY OF ~ (:) r\<-.. On this, the ~ day of 2005, before me, the undersigned officer, personally appeared who being sworn according to law, deposes and states that he/she is of Kinsley Construction, Inc., known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument and acknowledged that helshe, being authorized to do so, executed the same for the purpose therein contained, and desires the same to be recorded as such. SS: IN WITNESS WHEREOF, I hereunt 0... Notary Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Pamela K. Jones. Nolary Public YOIl< Twp.. YOIl< County My CommisSion ExpIres Nov. 22, 2007 Member, Pennsylvania Association Of Notaries 4 Columbua/444964.1 16348.(10207 EXHIBIT A LEGAL DESCRIPTION EXEL LOT3A All that certain lot, parcel or tract of land, located in Carlisle Borough, Cumberland County, Pennsylvania, bounded and described as follows, to wit; Beginning at a point on the southern right-of-way line of Logistics Drive (a seventy foot (70.00') right-of-way) at the comer of Lot No.5, said point being located the following three (3) courses from the tenninus of a curve connecting said right-of-way line with the eastern legal right-of-way line of Allen Road (S.R. 0465) 1) North eighty- two degrees, fourteen minutes, thirty seconds East (N 820 14' 30" E), a distance of one hundred feet (loo.oo') 2) by a curve to the left, having a radius of two hundred eighty- five feet (R = 285.00'), an arc distance of two hundred seven and forty-five hundredth feet (AlL = 207.45') 3) North forty degrees, thirty-two minutes, eleven seconds East (N 400 32' II" E), a distance of eighty and eighty-nine hundredth feet (80.89'); thence from said point of Beginning, by said southern right-of-way line of Logistics Drive the following seven (7) courses; 1) North forty degrees, thirty-two minutes, eleven seconds East (N 400 32' II" E), a distance of sixty and sixty-one hundredth feet (60.61 '); 2) by a curve to the right, having a radius of two hundred fifteen feet (R = 215.00'), an arc distance of ninety-one and fourteen hundredth feet (AlL = 91.14') to a point; 3) North sixty-four degrees, forty-nine minutes, thirty seconds East (N 640 49' 30" E), a distance of one hundred ninety-nine and ninety-eight hundredth feet (199.98') to a point; 4) by a curve to the right, having a radius of two hundred fifteen feet (R = 215.00'), an arc distance of sixty-four and four hundredth feet (AlL = 64.04') to a point; 5) North eighty- one degrees, fifty-three minutes, twenty-six seconds East (N 810 53' 26" E), a distance of one thousand two hundred sixty-five and sixty hundredth feet (1,265.60') to a point; 6) by a curve to the right, having a radius of two hundred fifteen feet (R = 215.00'), an arc distance of one hundred sixty-nine and seventy-seven hundredth feet (AlL = 169.77') to a point; 7) South fifty-two degrees, fifty-two minutes, zero seconds East (S 520 52' 00" E), a distance of three hundred thirty-two and thirty-five hundredth feet (332.35') to a point on the line ofland formerly of Royer, now or late other land ofEXEL Inc.; thence by said land South seven degrees, fifty-two minutes, zero seconds East (S 070 52' 00" E), a distance of six hundred forty-eight and fifty-nine hundredth feet (648.59') to existing stones; thence by land now or late of Bruce N. Pinto South eighty-two degrees, forty-four minutes, thirty seconds West (S 820 44' 30" W). a distance of two thousand thirty-three and sixteen hundredth feet (2,033.16') to an existing iron pin; thence by land now or late of Pennsylvania Power and Light Company and by Lot No.5 North seven degrees, forty- five minutes, thirty seconds West (N 070 45' 30" W). a distance of seven hundred sixty- five and sixty-seven hundredth feet (765.67') to a point on the southern right-of-way line of Logistics Drive, the place of Beginning. Said tract contains 1,830,160.17 square feet or 42.0147 acres. Columbus/444880.1 16348.00207 Being Lot No.3 A on a "Final Resubdivision Plan of Lot 3 and 4 and Final Land Development Plan of Lot 3 A " for EXEL Inc. as recorded in the Office of the Recorder of Deeds of and for the County of Cumberland, Commonwealth of Pennsylvania in Plan Book 85 Page 109, on August 9, 2002. Also being all of Lot No.3 and Lot No.4 on a Subdivision Plan for EXEL Inc. as recorded in the Office of the Recorder of Deeds of and for the County of Cumberland, Commonwealth of Pennsylvania in Plan Book 85 Page 69. And being a portion of that land conveyed unto EXEL Inc. by William J. Lippert et al, as recorded in the Office of the Recorder of Deeds of and for the County of Cumberland, Commonwealth of Pennsylvania in Record Book 154 Page 1125. \" DII.J~ 0 -It 1,70 lu21 '112<- ~t:1 ,.J G ~t+R. tfifllJUlI,t c """ \.)Onl , e. 3 CoJumbuo/444880.1 16348.00207 EXHlBlT A-l ~.. . ~ i I q. .Ii . : !! ~\ aH~ Jd , I h! .llI I , . 1....-..1- , . . .' .'---- , ; .. . I . . I II ,/ I I I , - - - ~ i , , I . I I .' , I , I , I . .. , , t lliJ \, . ,.,: \ \ ; ----=----- , \ .. ~ ~ . i ,", "'I EL~, ! ~I , ~ I , I -, WAIVER OF LIENS To be Indexed Against: LIT INDUSTRIAL LIMITED PARTNERSHIP As Owner for Index Purposes and KINSLEY CONSTRUCTION, INC. As Contractor for Index Purposes vs. LIT INDUSTRIAL LIMITED PARTNERSHIP As Contractors for Index Purposes and KINSLEY CONSTRUCTION, INC. As Owner for Index Purposes Property: That property described in the attached Exhibit "A" including that portion shown as "Lot 3A" on the drawing attached as Exhibit "A-I", Rt. 11 (Ritner Highway), Borough of Carlisle, Cumberland County, pennsylvania 7 Columbus/42953 1.2 16348.00207 LEGAL DESCRIPTION EXEL LOT 3A All that certain lot, parcel or tract of land, located in Carlisle Borough, Cumberland County, pennsylvania, bounded and described as follows, to wit; Beginning at a point on the southern right-of-way line of Logistics Drive (a seventy foot (70.00') right-of-way) at the comer of Lot No.5, said point being located the following three (3) courses from the terminus of a curve connecting said right-of-way line with the eastern legal right-of-way line of Allen Road (S.R. 0465) 1) North eighty- two degrees, fourteen minutes, thirty seconds East (N 820 14' 30" E), a distance of one hundred feet (100.00') 2) by a curve to the left, having a radius of two hundred eighty- five feet (R = 285.00'), an arc distance of two hundred seven and forty-five hundredth feet (AIL = 207.45') 3) North forty degrees, thirty-two minutes, eleven seconds East (N 400 32' 11" E), a distance of eighty and eighty-nine hundredth feet (80.89'); thence from said point of Beginning, by said southern right-of-way line of Logistics Drive the following seven (7) courses; 1) North forty degrees, thirty-two minutes, eleven seconds East (N 400 32' 11" E), a distance of sixty and sixty-one hundredth feet (60.61 '); 2) by a curve to the right, having a radius of two hundred fifteen feet (R = 215.00'), an arc distance of ninety-one and fourteen hundredth feet (AIL = 91.14') to a point; 3) North sixty-four degrees, forty-nine minutes, thirty seconds East (N 640 49' 30" E), a distance of one hundred ninety-nine and ninety-eight hundredth feet (199.98') to a point; 4) by a curve to the right, having a radius of two hundred fifteen feet (R = 215.00'), an arc distance of sixty-four and four hundredth feet (AIL = 64.04') to a point; 5) North eighty- one degrees, fifty-three minutes, twenty-six seconds East (N 810 53' 26" E), a distance of one thousand two hundred sixty-five and sixty hundredth feet (1,265.60') to a point; 6) by a curve to the right, having a radius of two hundred fifteen feet (R = 215.00'), an arc distance of one hundred sixty-nine and seventy-seven hundredth feet (AIL = 169.77') to a point; 7) South fifty-two degrees, fifty-two minutes, zero seconds East (S 520 52' 00" E), a distance of three hundred thirty-two and thirty-five hundredth feet (332.35') to a point on the line ofl!md formerly of Royer, now or late other land ofEXEL Inc.; thence by said land South seven degrees, fifty-two minutes, zero seconds East (S 070 52' 00" E), a distance of six hundred forty-eight and fifty-nine hundredth feet (648.59') to existing stones; thence by land now or late of Bruce N. Pinto South eighty-two degrees, forty-four minutes, thirty seconds West (S 820 44' 30" W), a distance of two thousand thirty-three and sixteen hundredth feet (2,033.16') to an existing iron pin; thence by land now or late of pennsylvania Power and Light Company and by Lot No.5 North seven degrees, forty- five minutes, thirty seconds West (N 070 45' 30" W), a distance of seven hundred sixty- five and sixty-seven hundredth feet (765.67') to a point on the southern right-of.way line of Logistics Drive, the place of Beginning. Said tract contains 1,830,160.17 square feet or 42.0147 acres. Subject to a seventy-foot easement in favor ofP.P.& L. as recorded in Misc. Book 178 Page 1040 and an easement in favor ofP.P.& 1. as recorded in Misc. Book 231 Page 53. Columbusl444880.1 16348.00207 Being Lot No.3 A on a "Final Resubdivision Plan of Lot 3 and 4 and Final Land Development Plan of Lot 3 A " for EXEL Inc. as recorded in the Office of the Recorder of Deeds of and for the County of Cwnberland, Commonwealth of pennsylvania in Plan Book 85 Page 109, on August 9, 2002. Also being all of Lot No.3 and Lot No.4 on a Subdivision Plan for EXEL Inc. as recorded in the Office of the Recorder of Deeds of and for the County of Cwnberland, Commonwealth of pennsylvania in Plan Book 85 Page 69. And being a portion of that land conveyed unto EXEL Inc. by William J. Lippert et al, as recorded in the Office of the Recorder of Deeds of and for the County of Cwnberland, Commonwealth of pennsylvania in Record Book 154 Page 1125. Columbual444880.l 16348.00207 Exhibit" A-I" Lot 3A 6 Col.: 282903v2 16].48.00207 Co1umbull429531.2 16348.00207 \'-.J--- -~ EXHIBIT B-1 lid .Ii!! . .-..-.... , , I . ~ . I ! ~ I i , ~ , 1 , \ I i , I , ~ [ill \, III' I. \ ----:2:------ , , " . . ~ I , i ,: l < , I i I q:< ~ 5 ~ . i H ~~~~ = :! a a Ud 0111 Q~~ : ZllJ~ ~i~ <( ~~ ~s~~ ZA ~~I <(....~~~~ ;i8m !Ic~ Ir z- ~~ . . 'r": , ~ .. ~ i b . Ii .; ':;i ~ ~ i LIL.t ~ w ~ I f 1I I IJ (J '6g, i "- tl .vc D --- ...... c;. \'- ~ "OJ .J:::. fE!- 'L> l/) J-J '---.( ~ ;s--. - ('- OJ '-G C> i -- ('l ~ 6\J