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HomeMy WebLinkAbout02-3317M.J. Community Center, LLC and Davenport's FLP, Owner V= Benchmark Construction Co., Inc., Contractor IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. _ 3/7 WAIVER OF LIENS WHEREAS, this Waiver of Liens, dated .~ ~ I~ ~ ;., 2002 is between M.J. Commun ty Center, LLC, a limited liability company, having an address of 300 Market Street, Johnstown, Pennsylvania 15901 and Davenport's FLP, a Pennsylvania limited partnership, having an address of 1205 Manor Drive, Mechanicsburg, Pennsylvania 17055 (collectively "Owner"), and Benchmark Construction Co., Inc., a Pennsylvania corporation, having an address of 4121 Oregon Pike, Brownstown, Pennsylvania 17508 ("Contractor"). The background to this Waiver of Liens is as follows: R-1. M.J. Community Center, LLC is the owner of and Davenport's FLP has leased an approximately 1.5 acre portion of the Carlisle Commons Shopping Center, Borough of Carlisle, Cumberland County, Pennsylvania (the "Property"), described on Exhibit A, attached hereto. R-2. Owner has negotiated with Contractor to provide work and/or materials for improvements to the Property, generally described as follows: all demolition and construction necessary for construction of an Applebee's Restaurant facility at the Property, including utility services lines and site work adjacent to the Property (the "Project"). NOW, THEREFORE, Contractor, INTENDING TO BE LEGALLY BOUND HEREBY, and before any authority has been given to the said Contractor by Owner to commence any work on the said Property or to purchase materials therefor, does hereby, for Contractor and for any and all subcontractors, materialmen, employees and parties acting or claiming for, through or under Contractor, covenant and agree with Owner that no mechanics' liens or claims shall be filed or maintained against the above- described real estate (the Property and adjacent portions of the Carlisle Commons Shopping Center on which utility service lines will be constructed), or the building or improvements to be erected thereon, for or on account of any work done or materials furnished under said agreement or under any supplemental contract, verbal or written, or contract for extra work in or about the erection, construction and completion of said' project, or otherwise; and Contractor, for Contractor and any and all subcontractors, materialmen, employees and parties acting or claiming through or under Contractor, hereby expressly waives and relinquishes the right to have, file or maintain any mechanics' liens or claims against said real estate or buildings or improvements. This agreement waiving the right of lien shall be an independent covenant 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 erection, construction, supervision and completion of the Proiect as to any work and labor done and materials furnished under said agreement. In order to give Owner full power and authority to protect the said real estate and buildings or any of them 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 this agreement, Contractor, for itself and all such aforesaid subcontractors, materialmen, employees and parties acting or claim for, through or under Contractor, hereby irrevocably authorizes and empowers any attorney of any Court of Common Pleas of the Commonwealth of Pennsylvania, or any attorney of any other court or jurisdiction there or elsewhere, to appear in any said courts or jurisdictions for Contractor and mark satisfied of record, at the cost and expense of Contractor, or any such subcontractor, materialman, employee or party, any and all claim or claims, lien or liens filed by or for Contractor or in its or their name against any of the said real estate, buildings or improvements. A copy of this Agreement, and a reference to the court, term and number or place in which this agreement and waiver shall have been filed, shall be sufficient evidence of the authority herein contained to warrant such action; and Contractor, for itself and all such parties, does hereby remise, release and quitclaim unto Owner, and its certain attorney or attorneys, any and all manner of errors, defects and imperfections whatsoever in entering such satisfaction or anywise touching or concerning the same. This agreement and waiver is made and intended to be filed with the Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania, or other proper place in which the above-described lands are located. It is expressly understood that the foregoing waiver and all of the provisions and remedies herein contained shall be available to and for the protection of Owner, its successors or assigns. 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 this agreement and 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. 2 IN WITNESS WHEREOF, Contractor and Owner have hereunto signed and sealed these presents the day and year first above written. CONTRACTOR: Benchmark Construction Co., Inc. P¥int Title: OWNER: Davenport's FLP By: SliD, Inc., its general partner President [SPACE INTENTIONALLY LEFT BLANK] CINEMA*~ 21,000 71~?'857~9 P.O4 80 UAPLF. WOOD DRIVE SUITE A ~"TrERS, PA 17319 ISCON - LAND SURVEYING CO., INC. GREGORY L. CONDON, P,L.8, LEGAL DESCRIPTION ETTERS (717) 038 3G~1 (157) 23a-4t47 FAX (717) 636-5759 APPLEBEE'S (LEASE BITE} M.J. Community Center, LLC July 09, 2002 ALL THAT CERTAIN parcel of land situate in the Borough of Carlisle, County of Cumberland. Commonwealth of Pennsylvania, bounded and described es follows: BEGINNING at a point, said point being on the Eastern Right-of-Way line of West Ridge Street; and a common corner with Tract 3 of Lands now or formerly of M.J. Community Center, LLC, THENCE, along Tract 3, South 75 degrees, 5g minutes, 58 seconds, East, for a distance of 181,51 feet to a point; thence along Tract I Lands now or formerly of M.J. Community Canter, LLC, South 10 degrees, ,53 minutes, 00 seconds, Wast, for a distance of 50,00 feet to a point, thence, along same South 22 degrees, 42 minutes, 00 seconds, West, for a distance of 385.24 feet to a point; thence through Tract 2 North 87 degrees, 18 minutes, 00 seconds, West for a distance of 180.00 feet to a point on the Eastern Right-of-Way line of West Ridge Street, thence along said right-of-way North 22 degrees, 42 minutes, 00 seconds, East, for a dmtancs of 279.6g feet to a point, thence along same, on an arc of a Durve, DurvJng to the left, having a radius of 880.00 feet, an arc length of 130.57 feet, the chord of which Is North 18 degrees, 21 minutes, 02 seconds, West, for a distance of 130.44 feet to a point, the POINT OF BEGINNING. CONTAINING 67,939 square feet or 1.660 Acres of land. Being a portion of Tract 2 of a final subdivision plan for M.J Community Center, LLC recorded in Plan Book 84 Page 132 .~. om