HomeMy WebLinkAbout06-5950
a ~ S9SlJ
~LI)
EXHIBIT
WAIVER OF LIENS - CONTRACTOR
KNOW ALL MEN BY THESE PRESENTS, That contemporaneously with the execution
hereof, an agreement for construction services (the "Agreement") has been entered into between
EXEL INC., a Massachusetts corporation, 570 Polaris Parkway, Westerville, OH 43082
("Owner"),
AND
JOHN W. GLEIM, JR., INC., a Pennsylvania corporation with a principal place of
business at 625 Hamilton Street, Carlisle, P A 17013 ("Contractor"), relating to the construction
of trenches for the installation of gas lines on real property located in Cumberland County, P A,
as said property is more particularly described in Exhibit A (South Middleton Township)
attached hereto and made a part hereof, of which Exel Inc is the owner ("Owner") of the property
described in Exhibit A (being designated and such property being designated as 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:
1. 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
COLUMBUS/515721.2
4
furnished under any supplemental contract for extra work in the planning, designing,
construction, construction administration, and completion of the Property.
3. IN ORDER TO GIVE OWNER FULL POWER AND AUTHORITY TO PROTECT THE
PROPERTY AGAINST ANY AND ALL MECHANICS' LIENS OR CLAIMS FILED BY CONTRACTOR OR
ANYONE ACTING OR CLAIMING FOR, THROUGH OR UNDER CONTRACTOR OR IN VIOLATION OF THE
AGREEMENT OR THIS WAIVER, CONTRACTOR, FOR ITSELF 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, HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY
COURT OF COMMON PLEAS OF THE COMMONWEALTH OF PENNSYLVANIA OR ANY ATTORNEY OF
ANY COURT OR JURISDICTION THERE 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 SUPPLIERS OR PARTY INCLUDING, INTER ALIA, ANY
MECHANICAL OR ELECTRICAL ENGINEER, CONSTRUCTION ENGINEER OR CIVIL ENGINEER, ANY AND
ALL CLAIM OR CLAIMS, LIEN OR LIENS FILED BY OR FOR CONTRACTOR, IN ITS OR THEIR NAME
AGAINST THE PROPERTY OR ANY PART THEREOF, AND, FOR SUCH ACT OR ACTS THIS SHALL BE A
GOOD AND SUFFICIENT WARRANT AND AUTHORITY, AND A REFERENCE TO THE COURT, TERM AND
NUMBER OR PLACE IN WHICH THE AGREEMENT AND THIS WAIVER 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 ATTORNEYS ANY AND ALL MANNER OF ERRORS,
DEFECTS AND IMPERFECTIONS 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
COLUMBUS/5 I 572 1.2
5
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
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 form 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 THIS
WAIVER OF LIENS, THE CONTRACTOR HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A JURY TRIAL
IN ANY ACTION TO STRIKE OR DISCHARGE THE 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 ofthe 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]
COLUMBUS/515721.2
6
AUi-1r-OG 12:09
From-
T-051 p.orS/09G F-2G9
TN WITNESS WHEREOF, Contractor with intent to be legally bound hereby, has
hereunto signed and sealed these presents this?.:L day ofSE;P;7e'#Ll~~2006.
WITNESS ~ l~ M~ 1 !-y
~r-(;t-~--
JOHN W. GLEIM, JR., INe.
~~~
By' - .,
Name:- o~1 )?h_"-A/
Title:J.&IC~ *<5/LJ~~
OF PENNSYLVANIA :
fJ;(f1hp~/fAll vi
ss:
COUNTY OF
On lhjfl. the rJii+'y of Sft, 2006, befure me, !be Wldersigned officer, personally
appeared -fj!! (;ec- t. , (b &ht t who being sworn according to law, deposes
and states that he/she is lIt?P P lest {)fJ~ of Kiusle,-
. .' _, known to me (or satisfactorily proven) to be the person whose name is
subscribed to tilt! 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.
. IN WITNESS WHEREOF. I hereunto setm
Soh!) 0.0-Ip,IJ/l) T.e, Tpc
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Ondy G/eim-Pool, Notary PlbIc
Carlisle 80m, Cumberland Coonty
My Commission Expires Apr. 1, 2008
Member. PC'1".~'1I''')' '. -'., C'\" ;>l'on Of Notaries
7
COWMEiUSlSlsnl. I
...
....
.'
EXHIBIT A
ALL those certain tracts of land situated in South Middleton Township.
Cumberland County, Pennsylvania, bounded and described as follows, to wit:
TRACT NO.1
BEGINNING at a point on the northern right-of-way line of Interstate Route No.
81 at the line of land now or late of N. Bruce Pinto; thence from said point of Beginning,
by the line of land of N. Bruce Pinto, North 16 degrees 58 minutes 00 seconds West, a
distance of 578.02 feet to a point at or near a Comer Post; thence from said point, by land
of N. Bruce Pinto, South 61 degrees 00 minutes 00 seconds West, a distance of 354.47
feet to a point at or near a Corner Post; thence from said point by land now or late of Exel
Logistics, North 07 degrees 52 minutes 00 seconds West, a distance of 747.59 feet to a
point at or near a Corner Post; thence from said point, by land now or late of General
Signal COIporation, the following two (2) courses: (I) North 46 degrees 54 minutes 10
seconds East, 905.93 feet to a point at or near a fence post; (2) North 46 degrees 23
minutes 15 seconds East, a distance of 889.60 feet to a point at or near a fence post;
thence from said point by lands now or late of Stephen L. Willhide, by land now or late
of Nancy 1. Stout, by land now or late of James A. DeGeatao, by land now or late of
William H. Everett, by land now or late of Gregg A. Wells, by land now or late of
Thomas H. Jones, by land now or late of Roy O. Beidel, by land now or late of Paul M.
Harbach, by land now or late of Ronald L. Curry, by land now or late of Albert H. Muth,
by land now or late of Dan-in J. Wells, by land now or late of Walter F. Nickel, Jr. and by
land now or late of Charles D. Fox, North 64 degrees 17 minutes 00 seconds East, a
distance of 1 ,364.94 feet to a point; thence from said point, by land now or late of Charles
D. Fox and by land now or late of the Borough of Carlisle, South 70 degrees 50 minutes
00 seconds East, a distance of 1,132.02 feet to a point; on the line of land now or late of
Archie E. Akers; thence from said point, by land now or late of Archie E. Akers, the
following two (2) courses: (1) South 24 degrees 46 minutes 00 seconds East, a distance of
245.65 feet to a limestone (2) North 61 degrees 29 minutes 00 seconds East, a distance of
242.20 feet to a point; thence from said point, by land now or late of Eugene S.
Schlosnagle, by land now or about to be conveyed to Steven M. Black, along a vacated
portion of Hillside Drive, by land now or late of Fine Line Homes, by land now or about
to be conveyed to Steven M. Black. by Lot Nos. 31, 30, 29, & 28, as recorded in Plan
Book 55, Page 9 to be conveyed by land now or late of James L. Line, by land now or
late of Michael J. Nevin, by land now or late of Alan S. Cleeland, by land now or late of
John M. Fulmer, by land now or late of Eliseo Rosario Jr. along a vacated portion of
Stratford Drive, by land now or late of Richard L. Wingfield, III, by land now or late of
Thomas L. Hendrix. and by land now or late of Dwight R. Peterson, South 26 degrees 56
minutes 00 seconds East. a distance of 2.150.2 7 feet to a point; thence from said point. by
land now or late of Pennsyl\'ania Power and Light Company the following two (2)
.
.
courses: (I) South 86 degrees 57 minutes 00 seconds West, a distance of 300.00 feet to a
point; (2) South 03 degrees 03 minutes 00 seconds East, a distance of 320.03 feet to a
point on the northern right.of.way line of Interstate Route No. 81; thence by said right-
of-way, South 86 degrees 57 minutes 00 seconds West, a distance of 1,648.15 feet to a
point; thence from said point, oy land now or late of Robert M. Frey, the following two
(2) courses: (1) North 30 degrees 10 minutes 00 seconds West, a distance of 609.07 feet
to a limestone (2) South 66 degrees 45 minutes 00 seconds West, a distance of 1,570.00
feet to a point on the northern right-of.way line of Interstate Route No. 81; thence by said
right-of-way. South 86 degrees 57 minutes 00 seconds West, a distance of 637.15 feet to
a point, the Place of BEGI1\TNING. Said tract contains a gross area of 215.34 acres
excepting, however two tracts of land containing 36,000 square feet or 0.8264 acres.
Leaving a net area of214.51 acres.
EXCEPTION NO.1 TO TRACT NO.1:
BEGINNING at a point on the western side of an abandoned township road said
point being located the following two (2) courses from the North East corner of a tract of
land conveyed to Pennsylvania Power and Light Company: (l) North 26 degrees 56
minutes 00 seconds West, a distance of 349.55 feet (2) South 64 degrees 14 minutes 00
seconds West, a distance of25.00 feet; thence from said point of Beginning, through land
now or late of the Ruth S. Royer Estate the following two (2) courses: (1) South 64
degrees 14 minutes 00 seconds West, a distance of 150.00 feet to a point; (2) North 26
degrees 56 minutes 00 seconds West, a distance of 120.00 feet to a point; thence by land
now or late of Robert H. Royer, North 64 degrees 14 minutes 00 seconds East, a distance
of 150.00 feet to a point on the western side of an abandoned township road; thence by
said line, South 26 degrees 56 minutes 00 seconds East, a distance of 120.00 feet to a
point, the Place of Beginning. Said tract contains 18,000.00 square feet.
BEING the same tract of land conveyed unto Arthur M. Smith by Israel G.
Royer, by Deed dated February 19, 1960 and recorded in the Office of the Recorder of
Deeds of and for the County of Cumberland, Pennsylvania in Deed Book "R", Volume
19, Page 128.
EXCEPTION NO.2 TO TRACT NO.1:
BEGINNING at a point on the western side of an abandoned township road said
point being located the following two (2) courses from the northeast comer of a tract of
land conveyed to Pennsylvania Power and Light Company: (1) North 26 degrees 56
minutes 00 seconds West, a distance of 469.55 feet; (2) South 64 degrees 14 minutes 00
seconds West, a distance of 25.00 feet; thence from said point of Beginning, by land now
or late of Arthur M. Smith, South 64 degrees 14 minutes 00 seconds West, a distance of
150.00 feet to a point; thence through land now or late of the Ruth S. Royer Estate the
following two (2) courses: (l) North 26 degrees 56 minutes 00 seconds West, a distance
of 120.00 feet to a point; (2) North 64 degrees 14 minutes 00 seconds East, a distance of
150.00 feet to a point on the western side of an abandoned township road; thence by said
line. South 26 degrees 56 minutes 00 seconds East, a distance of ) 20.00 feet to a point.
the Place of Beginning. Said tract contains 18,000.00 square feet.
BEING the same tract of land conveyed unto Robert H. Royer. by Israel G.
RC'lyer. by Deed dated October 14. 1960 and r~corded in the Office of the Recorder of
'. .
.
.
Deeds of and for the County of Cumberland, Pennsylvania in Deed Book "A", Volume
20, Page 554.
TRACT NO.2
BEGINNING at a point on the southern right-of-way line of Interstate Route No.
81 at its intersection with the center line (projected) of Alexander Spring Road; thence
from said point of Beginning, by the center line (projected) of Alexander Spring Road,
South 73 degrees 40 minutes 00 seconds West, a distance of 687.35 feet to a point; thence
from said point by land no\\' or late of Clair R. Tritt, North 17 degrees 00 minutes 00
seconds West, a distance of 16:!.73 feet to a point on the southern right-of-way line of
Interstate Route !\o. 81: thence from said point by said right-of-way, North 86 degrees 57
minutes 00 seconds East, a distance of 708.19 feet to a point, the Place of Beginning.
Said tract contains 55,922.65 square feet or 1.28 acres.
TRACT NO.3
BEGINNING at a point in the center line of Alexander Spring Road at the line of
land now or late of Robert M. Frey; thence from said point, by land now or late of Robert
M. Frey, North 30 degrees 10 minutes 00 seconds West, a distance of 456.31 feet to a
point on the southern right-of-way line of Interstate Route No. 81; thence from said point
by said right-of-way, North 86 degrees 57 minutes 00 seconds East, a distance of 970.26
feet to a point; thence by land now or late of Clair R. Tritt, South 17 degrees 00 minutes
00 seconds East, a distance of 203.10 feet to a point in the center line of Alexander
Spring Road; thence by the center line of Alexander Spring Road, South 72 degrees 30
minutes 00 seconds West. a distance of 23 7.41 feet to a point; thence by land now or late
of David C. Lebo, North 17 deerees 30 minutes 00 seconds West, a distance of 225.00
feet to a point; thence by land now or late of David C. Lebo and by land now or late of
Garv N. Warner, South 71 deerees 30 minutes 00 seconds \Vest, a distance of 300.00 feet
- -
to a point; thence by land now or late of Gary N. \Varner, South 17 degrees 30 minutes 00
seconds East, a distance of 225.00 feet to a point in the center line of Alexander Spring
Road; thence by the center line of Alexander Spring Road, South 72 degrees 30 minutes
00 seconds West, a distance of 300.33 feet to a point, the Place of Beginning. Said tract
contains 214,602.55 square feet, or 4.93 acres.
\1t ~ r-)
c=:>
CJ
CT'
~ C)
(''''.''t
.......... ~ -..-..;
<::J:\ ~
'- ~ ~
. -c>
~ b -:f...
~ I r:-:
- t'>,)
~ h)
~
\'\
"1---
1:- ~ ? ~ t'_
, ~ ;S ~
f ~ '>il ~ ~
1S"'"" 1"'\
....J ~ l>.
~ ~. ~
$: \'.
- l
~ ~ -...:
~ ,
'\ ~
t-- ~
~ =\.. t--
~ ~
't ~ \
~
.. , ~
~ ~. ~
1"\ )<
~ ~ ;S
~
"\