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HomeMy WebLinkAbout06-1393 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CAPITAL CITY MALL OWNER/PLAINTIFF VS. MARK EBERHARDT CONTRACTING INC. CONTRACTOR/DEFENDANT AND MARK EBERHARDT CONTRACTING INC. CONTRACTOR/PLAINTIFF VS. CAPITAL CITY MALL OWNER/DEFENDANT NO. ct. /3tf3 fA W) WAIVER OF LIENS CAPITAL CITY MALL TRADE SECRET, SPACE #236 3506 CAPITAL MALL DRIVE LOWER ALLEN TOWNSHIP, CUMBERLAND COUNTY CAMP HILL, PA 17011 1. The undersigned is vice president of Mark Eberhardt Contractinq Inc. (herein called Contractor") and is duly authorized and empowered to execute and deliver this instrument (the "Waiver") on behalf of Contractor and legally bind Contractor hereto. 2. (a) The terms "Owner" or "Landlord" mean Mall Entity Name acting through its agent, PREIT Services, LLC; (the "Agent"); the term "Tenant" means Reqis Hair Stylists. (b) The term "Property" means the land, building, and other improvements comprising the improved real property currently known as "Capital City Mall" and located at 3506 Capital Mall Drive, Trade Secret, Space #236, Lower Allen Township, Cumberland County, Camp Hill, PA 17011. The property is more particularly described and/or shown on Exhibit "A" annexed hereto and incorporated herein by reference. (c) The term "Contract" includes, without limitation, the agreement by and between Tenant and Contractor made on or about the date hereof for the "Work" (hereinafter defined) to, at and/or for the "Premises" (hereinafter defined) as well as any and all other agreements and orders for "Other Work" (hereinafter defined). (d) The term "Premises" means that portion or portions of the Property leased by tenant from the owner as Landlord. (e) The term "Subcontractor" means any and all subcontractors, material man and other persons acting or claiming directly or indirectly by, through or under Contractor. 3. This Waiver is given by Contractor to each person identified herein as Owner and the Agent and their respective agents, mortgages, lenders and title companies as well as to Tenant and all other persons having an estate, right, title or interesting or relating to the Property (all of the foregoing persons being herein sometimes collectively called "Beneficiaries") for the benefit of Owner and each of the other beneficiaries with the understanding that the Owner and each of the Beneficiaries rely on this Waiver which any one or more of them, alone or otherwise, may enforce. 4. Contractor has entered into the Contract with Tenant for certain labor, services and/or other work (collectively sometimes called herein "labor" or "work") and/or supplies, machinery, fixtures, equipment and/or materials Collectively sometimes called herein "materials") [all of which labor, work, and/or materials being collectively sometimes herein called "Work"] in connection with the Premises and/or other portions of the Property. 5. (a) Contractor represents, warrants and agrees that no lien, lien claim or notice or action with respect thereto shall be filed, served, maintained or otherwise asserted against anyone or more of the Owner, the other Beneficiaries, the Property including, without limitation, any "Owner's Interest" (hereinafter defined) under the "Lien Law" (hereinafter defined) and/or under the Uniform Commercial Code, other statutory law of the COMMONWEALTH OF PENNSYLVANIA, as amended, and/or at common law (collectively "Other Law"), which may arise or which could be perfected or created by reason of any Work as well as any Other Work in connection with the Premises or any other portion of the Property. The foregoing terms "lien", "lien claim" and/or "notice" include, without limitation, any security interest and any preliminary, formal or other notice as well as any "stop notice" or other notice that payment not be made. (b) In addition, Contractor for itself and for each and every Subcontractor hereby waives and releases any and all liens and lien claims as well as any and all rights and remedies with respect thereto including, without limitation, notices, rights of action and other rights and remedies pursuant to and/or under the Lien Law and/or Other Law which anyone or more of them has or may have now or hereafter against any Owner, the other Beneficiaries, the Property, the Premises or any other portion of the Property including, without limitation, any Owner's Interest. 6. This Waiver shall be an independent covenant and shall also operate and be effective with respect to labor provided, materials furnished or work performed under any supplemental contract, order or arrangement for extra, additional and/or other work (collectively "Other Work") in the erection, construction, completion, alteration or repair of or other work to of for any building, buildings or improvements in connection with the Property, the Premises or any other portion of the Property. 7. Before any Subcontractor performs any Work, Contractor shall obtain from each Subcontractor (and deliver to the AQent) an executed Waiver in the form annexed hereto as Exhibit "B" and incorporated herein by reference and shall stipulate in each subcontract, purchase order or like document that there shall be no lien, lien claim, notice or action with respect thereto by any Subcontractor. 8. Contractor agrees to defend, protect, indemnify and hold harmless Owner and the other Beneficiaries from and against any and all liens, lien claims and notices (as well as any and all actions, manner of actions, rights of action, causes of action claims, demands, liabilities, obligations, costs and expenses whatsoever with respect thereto) including, without limitation, premiums for bonds and attorneys' fees, at trial and on appeal. 9. This waiver shall be binding upon Contractor, each subcontractor and their respective heirs, successors and assigns and shall inure to the benefit of the Owner, each of the other Beneficiaries and their respective heirs, personal representatives, successors, assigns and grantees. 10. This Waiver shall be deemed a part of the Contract but it is understood and agreed and Contractor hereby acknowledges that Tenant shall have no liability or other obligation to any Subcontractor (and the Owner, Agent and other Beneficiaries shall have no liability or other obligation to the Contractor and/or any Subcontractor) with respect to the Contract, the Work, any Other Work, payment whether based on unjust enrichment, third party beneficiary, estoppels or other grounds and/or otherwise. Contractor agrees to and shall look solely to Tenant for payment and no one else and shall cause each Subcontractor to look solely to Contractor for payment and no one else. Contractor hereby irrevocably waives any right to a jury trial in any proceeding or action in which Owner or the Agent is or becomes a party. 11. (a) If Contractor or any Subcontractor files, serves, maintains or otherwise asserts any mechanics' or other lien, lien claim or notice or action with respect thereto, any Owner, any one of the other Beneficiaries or the representative of anyone of them shall have the right to cancel, strike and otherwise discontinue and terminate the same and the right to be completely reimbursed and indemnified by Contractor against resulting expenses and losses. Such expenses and losses shall include, without limitation, any attorneys' fees, bond premiums and other costs incurred to cancel, strike and otherwise discontinue and terminate the same and any damages or other losses resulting there from, all of which Contractor agrees to pay upon presentation of the bills therefore. (b) In order to give Owner and each of the other Beneficiaries full power and authority to protect itself, themselves, the Premises and the Property as well as the estates, rights, title and interests of Owner and each of the other Beneficiaries therein (collectively "Owner's Interest") against any and all liens, lien claims and notices and actions with respect thereto filed, served, maintains or otherwise asserted by, through or under Contractor, Contractor hereby irrevocably authorizes and empowers any attorney of any court of the Commonwealth of Pennsylvania to appear therein as attorney for Contractor and, in the name and stead and at the sole cost and expense of Contractor, by praecipe, pleading or otherwise, and/or the Prothonotary of Franklin County: (a) to cancel, strike, and/or otherwise discontinue or terminate of record, with prejudice, any and all of such liens or lien claims, (b) in any and all actions upon or in connection therewith, to confess or otherwise enter judgment in favor of all the defendants therein and against Contractor, and (c) to incorporate therein, as part of the record, this Waiver, and for such act or acts a true and correct copy of this Waiver shall be good and sufficient warranty and authority. A reference to the Court and number in which and where this Waiver shall have been filed and shall be conclusive evidence of the authority herein contained to warrant such action, and Contractor hereby remises, releases and quit-claims all rights and all manner of errors, defects and imperfections whatsoever in such action. The exercise of the foregoing warrant of attorney shall not exhaust the same and the foregoing warrant of attorney may be exercised from time to time and as often as anyone or more of Owner or each of the other Beneficiaries may determine and by anyone or more of them. 12. Contractor hereby warrants and represents that at the time of execution hereof no labor of any kind has been provided, no materials of any kind have been furnished and no work of any kind has been performed in connection with the property, the Premises or any other portion of the Property directly or indirectly by, through or under the Contractor and that Contractor has not entered into any contract or other agreement, written or oral, with Owner or other Beneficiaries in connection with the property, the Premises or any other portion of the Property, except the Contract. 13. This Waiver is made by the Contractor in accordance with the requirements of the Lien Law and Other Law as to the subject matter hereof and to the fullest extent thereunder permitted. If any part hereof is determined to be illegal and unenforceable, this Waiver shall be deemed reformed as necessary to eliminate such illegal or unenforceable part but no further, and the remainder hereof shall be unaffected and shall remain in full force and effect. This Waiver is made and intended to be filed with the PROTHONOTARY OF CUMBERLAND COUNTY in accordance with the requirements of Section 402 of the Mechanics' Lien Law of 1963 of the Commonwealth of Pennsylvania (49 P.S. Section 1402), as amended [which Mechanics' Lien Law is, in its entirety, herein called the "Lien Law"]. IN WITNESS WHEREOF, the Contractor has signed and sealed this instrument by and through its duly authorized and empowered officers and/or officials as of the date herein below stated, intending legally to be bound hereby. CONTRACTOR: Mark Eberhardt Contractinq Inc. (CORPOR,tITE SEAL) a Pen BYi Titl . Vice President Attest: _~ nu.../6_cA ~L~ STATE OF PENNSYLVANIA: SSe COUNTY OF ALLEGHENY: BE IT REMEMBERED THAT on March 8, 2006, personally appeared before me John D. McAdoo, who is Vice President of Mark Eberhardt Contractino Inc. and acknowledged that he/she executed and is authorized and empowered to execute the foregoing Waiver. Sworn to and subscribed before me this 8th day of March, 2006 . ./J..JUJ /"-~ /I~d.:ldll NOTARY PUBLIC My Commission expires: i~~~ -J' ... P \') '-^\ --t: ~ ;::;::'.J l + d' ~ ~ t (" ~_1 , --'~ -~\ ;','\ ..- 0~' - -----